Wolfgang Kaleck, Double Standards: International Criminal Law and the West. Berlin: Verlag Klaus Wagenbach, 2015.
Jadaliyya (J): What made you write this book?
Wolfgang Kaleck (WK): To be frank, I wrote this book out of anger. The promise of international criminal law is universal justice that can contribute to overcoming international crimes and healing the traumata of individuals and of societies. The project of international criminal justice has, however, not been living up to its own claims and is increasingly the subject of criticisms of bias and political selectivity: Although Western states like to portray themselves as global champions of human rights and universal justice, to date hardly any of those most responsible for torture at Guantánamo, the ill-treatment of detainees in Iraq, or war crimes in Afghanistan, Colombia, or Gaza have faced trial. The International Criminal Court (ICC), which embodies the promise of universal justice irrespective of a perpetrator’s office, race, nationality, or political clout, so far only has initiated trials against African defendants. International criminal justice purports to be universal, but in reality it often operates—both before international criminal tribunals and at the national level—in a politically selective manner where charges are mostly saved for rank and file soldiers, powerless former generals, or leaders who can be brought to justice at low political cost. Skepticism has especially been mounting in the Global South, where impunity for the massive human rights violations committed by Western colonial powers has been rife for more than half a century. Repeatedly, international criminal law has been portrayed as a tool of Western domination whose claim to universality is nothing more than an empty ideological superstructure; I think that a lot of this criticism is justified.
If I speak to lawyers and activists in Asia, Latin America, Africa, and the Arab world, they tell me that they are fed up with this hypocrisy. The current state of affairs not only undermines the legitimacy of international criminal law, but it also violates even the most basic notions of justice and the rule of law that I, as an internationally active human rights lawyer, am committed to.
J: What particular topics, issues, and literatures does the book address?
WK: I try to offer an analysis of existing double standards in the practice of international criminal law to date, in order to systematize and stimulate the debate on this pressing issue. The book does not claim to be comprehensive, but I think it gives a fair overview about the most important instances of the practice of international criminal law since the Second World War. Its focus is on the behavior of Western states and actors in this regard. I assess the beginnings of the system at Nuremberg and Tokyo, the impunity for Western crimes during the colonial wars and in Vietnam, the potential of national jurisdictions to bring perpetrators to justice on the basis of universal jurisdiction, the practice of international and hybrid tribunals, and the lacking investigation and prosecution of corporate involvement in international crimes.
I aim to show that there is a massive North-South divide in the way international criminal law has been applied so far. It is a scandal that those responsible for Guantanamo and Abu Ghraib, for war crimes in Vietnam and in Iraq, have not faced trial, while Western governments still portray themselves as champions of the rule of law. But it is not sufficient to be scandalized about an imperialist or neo-colonialist bias in international criminal justice and it is not as easy as that: those who wield power in the Global South are not hesitant either to employ their influence to stifle prosecutions against them and their allies. It is definitely not a coincidence that the ICC`s prosecutors in the Democratic Republic of the Congo and Uganda situations have so far only been prosecuting suspects that belong to armed groups—after all, the Congolese and Ugandan governments have for a long time been amongst the most important backers of the court in Africa. The power of multinational corporations, most of whom are based in the Global North, has been another important factor in the creation of double standards in the application of international criminal law when it comes to grave corporate crimes—and such crimes are everything but rare.
J: How does this book connect to and/or depart from your previous work?
WK: As an internationally active human rights and criminal lawyer and general secretary of the Berlin-based European Center for Constitutional and Human Rights (ECCHR), I have been working on the dismantling of double standards for a long time from a practical, hands-on perspective. In cooperation with partners from all over the world, we are trying to use the leeway that the peculiar workings of legal systems provide to expose and undermine existing double standards. For example, we try to hold corporations legally accountable for grave human rights violations committed in the course of their operations; we juridically address the massive injustices committed against irregular migrants at the exterior EU borders; and we have submitted various criminal complaints in European jurisdictions against those responsible for the US extraordinary renditions and torture program.
The latter project is a good example to explain how our work employs the law to tackle double standards. The named suspects include Donald Rumsfeld, George W. Bush, and other high-ranking officials. Of course, the power of an actor such as the US does not disappear in the courtroom: the US government has always used all diplomatic and political resources to undermine these proceedings, and even blackmailed the Belgian government by threatening to move NATO headquarters from Brussels when a criminal complaint against US general Tommy Franks was submitted in Belgium. And the deciding judges often shy away from confronting such a powerful actor. However, the law`s claim to neutrality, its promise of equality and the courts` claim to independence and impartiality, open up a certain space for subversive intervention. The courts have to address such actions, and the more spurious the reasoning on the basis of which they dismiss them, the easier it becomes to expose the contradictions between the ideal of the rule of law and the political reality. Sometimes, the ideals of independence of the courts and equality before the law can lead to very tangible outcomes: just recently, a French court summoned General Geoffrey Miller, the former commander of Guantanamo, as a witness in an ongoing criminal investigation initiated by two survivors of abduction and torture at the hands of the US administration.
It is this subversive, emancipatory potential of the law that I also try to tap into with this book. It is international criminal law`s central claim to universality that opens up space to expose existing double standards as contradictory and unjust and to push for accountability of the powerful.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
WK: Notwithstanding the fundamental criticisms discussed in the book, I continue to believe that an international criminal justice system that is based on the idea that even the most powerful are equal before the law and will be held accountable for crimes they have committed has the potential to make a difference to the lives of the victims of international crimes, the affected societies, and the world.
The aim of the book is therefore constructive in nature. So far, the important debate about double standards in international criminal law has been left mostly to its opponents, to the Saddam Husseins and Slobodan Miloševićs, who have skillfully relied on the charge of political bias in order to challenge the legitimacy of the courts in front of which they had to defend themselves. In a similar vein, criticisms of the African focus of the ICC and of the universal jurisdiction practice in European countries such as Belgium and Spain have often been deployed by members of African elites whose concerns seemed to be mainly driven by the urge to avoid the possibility that they themselves would end up in the dock at The Hague.
I am, however, convinced that the response to the impunity of Donald Rumsfeld cannot be impunity for Omar Al-Bashir. This is not a purely Western perspective. Civil society in the Global South is increasingly relying on the law to hold both local elites and powerful transnational actors such as corporations accountable. And they have good reasons to do so: my friends from Guatemala, for example, tell me how important the trial of former dictator Rios Montt on charges of genocide is in a society where the elites who once massacred the country`s indigenous communities and their political opponents wield a lot of influence until today. Such trials can be important contributions to the healing of societies with an unaddressed collective experience of mass violence and dictatorship.
I therefore consider it crucial that the proponents of a truly universal international criminal law engage with this debate, if what has been one of the most progressive legal developments of the last decades shall not ultimately fail for a lack of legitimacy and global endorsement. This book—originally written and published in German in 2012 and now translated and updated—aims to contribute to this discussion.
One central motive behind this book is to raise awareness about existing double standards and problems of selectivity amongst lawyers, activists, scholars, and everybody else with an interest in the progressive development of international criminal justice. Quite often, we may lose sight of the fact that a Donald Rumsfeld or a CEO of a transnational corporation can be as much of a war criminal as a Muammar Gaddafi or a Joseph Kony, and that the massacres caused by missiles and airstrikes can just be as abhorrent as those perpetrated by the use of machetes and AK 47s.
But even those who in principle argue that Western perpetrators should also be brought to justice may frequently be of the opinion that pursuing their prosecution would not be politically feasible and that the ensuing backlash would undermine the fledgling project of international criminal justice. In my view, however, the aims of further developing the international criminal justice system and of eliminating existing double standards are far from mutually exclusive. Rather, the issue of double standards will have to be discussed and addressed, if the lack of legitimacy that it causes shall not further hamper the development of international criminal law. This book is therefore also a manifesto not to let the practice of international criminal law be restrained by anticipatory obedience and considerations of Realpolitik, but to aim for universal justice that truly deserves its name.
I am furthermore convinced that human rights organizations and survivors of human rights violations themselves have a fundamental role to play in advocating and pushing for the gradual and progressive cutback of existing double standards in international criminal law. In this book, I also tell their stories and appraise their contributions to the fight against impunity for international crimes. I hope that this narrative will play its part in motivating those who continue to seek justice for grave human rights violations to continue their struggles.
J: What other projects are you working on now?
WK: With the ECCHR, I am currently involved in a series of litigation projects that aim at accountability for human rights violations and international crimes in respect of which impunity reigns—more often than not, these are situations where the existing law is applied in a selective manner and double standards hold sway. Besides the work that I have already mentioned, our current projects include litigation in German civil courts against the German apparel retailer KiK. We support survivors in suing KiK, because 260 workers died and thirty-two were injured in Karachi in September 2012 in a factory fire at Ali Entreprises, which sold more than seventy percent of its products to KiK. We want to establish legal responsibility for the scandalous working conditions along the global supply chains that characterize today`s economy. Actors in the Global North that profit tremendously from the way in which the world economy is configured must be held accountable for the impact their activities have in other parts of the world. In a similar vein, we try to address the legal responsibility of European-based mining corporations for pollution in the Global South and of various other corporate sectors whose activities violate the human rights of people all over the world. Further projects address US drone warfare, the torture of Iraqi detainees by UK forces, and international crimes committed during the Sri Lankan and Colombian civil wars and during the dictatorships in Argentina and Chile. Detailed information about this work can be found here.
In terms of publications, I am working on two bigger projects. One autobiographical book discusses my experiences in relying on the law to confront injustices committed by the powerful. The other one, which I am writing with my colleague Miriam Saage-Maaß, who heads our business and human rights program, discusses corporate violations of human rights and experiences in holding transnational economic actors accountable for such violations.
J: How does this book relate to other recent critiques of international law?
WK: I think the book`s peculiarity is that it departs from an empirical survey of the practice of international criminal law to develop its critique. I consider the postcolonial critiques of international law of the last decades, amongst the most important advancements of our understanding of international law. They have greatly informed my work and the writing of this book and I have relied on their insights in assessing the practice of international criminal law. The book`s main objective, however, is not only to advance our theoretical understanding of the practice of international criminal justice, but to inform that practice with its analytical insights and to thereby contribute to the dismantling of double standards.
Excerpts from Double Standards: International Criminal Law and the West
From Chapter One: Introduction: International Criminal Law Between Law and Politics[1]
“Winners are never tried for war crimes.”
“If you look at the history of war crimes there isn’t one instance where a winner of a war has been tried before a Tribunal”. This was the claim of Sri Lanka’s permanent representative to the United Nations (UN), Palitha Kohona, in an interview in the summer of 2009. His country’s army is responsible for the deaths of around forty thousand civilians as well as thousands of cases of torture and rape committed during and after the war against the Tamil liberation movement, a conflict that came to an end in May 2009 after thirty years of brutally conducted hostilities on both sides. When asked about legal consequences for crimes committed by the state, Kohona replied that war crimes tribunals have “always been set up for losers. And if you were to take winners then the start would have to be taken elsewhere. Sri Lanka did not drop atom bombs or destroy entire cities during the war.”[2]
It is clear that today, around seventy years after the nuclear bombs were dropped on Hiroshima and Nagasaki, Western powers are not the only ones seeking to benefit from the privilege of victors’ immunity. It is clear, too, that the debate around prosecuting grave human rights violations is still dominated by arguments grounded firmly in Realpolitik. Even if international criminal prosecutors do take action, for example when the International Criminal Court (ICC) in The Hague issued an arrest warrant against Libya’s former leader Muammar Gaddafi in June 2011, a heated legal debate often ensues. Some of those who objected to the Gaddafi case pointed out that it is only North Atlantic Treay Organization’s (NATO) opponents—Gaddafi, Milošević or African nationals—who are brought before international tribunals. Others took a different view, advocating confidence in the ICC. They argued that while ideally prosecutions should also be pursued in cases of systematic torture of prisoners and suspected terrorists by the USA and its allies following 11 September 2001, this is not yet possible. The relatively new Court in The Hague needs some time, they contended, to establish itself in an international landscape dominated by Western powers. They argued that the pursuit of dictators such as Gaddafi, while politically motivated, will ultimately pave the way for a practice of truly universal criminal prosecution in the future.
The modern history of international criminal law began auspiciously with the Nuremberg trials in the aftermath of the Second World War. For political reasons, the agenda of universally prosecuting those responsible for the most severe crimes—promised by these trials—was never completed. The progressive development of international criminal justice ground to a halt during the Cold War, when Western powers—despite newly formulated human rights principles and norms—were responsible for a series of international crimes in the course of the suppression of anticolonial liberation movements around the world. Meanwhile, human rights violations were also being committed on a massive scale by Stalin and his successors. During the 1970s and 1980s, courts in Athens, Lisbon, and Buenos Aires presided over a number of significant criminal trials relating to the crimes of toppled regimes, but these cases failed to attract much global attention. The 1990s saw something of a revival of the development of international criminal law at the international level, with great optimism around the establishment of the tribunals for ex-Yugoslavia and Rwanda as well as the setting up of the ICC. Today, over ten years since the ICC came into being and seventeen years since investigations were initiated before a Spanish magistrate in the Pinochet case, the international criminal justice system is being criticized on various grounds and has become the subject of great skepticism.
It is true that the practice of international criminal law often leaves a lot to be desired. A great gulf exists between what it promises and what actually occurs. In practice, only a small number of the world’s dictators and torturers have to fear prosecution by courts in The Hague or elsewhere. This book focuses on one of the biggest weaknesses of international criminal law: that the law is applied selectively and is predominantly wielded against weak, fallen and toppled autocrats and military leaders. But it also tells the stories of social movements and lawyers to ensure that human rights violators from powerful nations are held to the same standards as those from weaker states.[3]
To date, all suspects brought before the ICC in The Hague, in operation since July 2002, have been from Africa. This is despite the fact that human rights violations have occurred in many other parts of the world during this period. Granted, some of the violations occurring outside Africa do fall outside the remit of the ICC, as they were committed in states that have not signed up to the Court’s jurisdiction. But why, for example, was the UN Security Council so quick to give the ICC prosecutor the power to commence investigations into Gaddafi’s government in February 2011, while back in early 2009 there was no such resolution passed in relation to Israel’s war in Gaza, nor in relation to the war crimes committed by the Sri Lankan government against the Tamil population, nor in the case of the Iranian dictatorship’s repression of oppositionists after the elections? Similarly, when such crimes could have been prosecuted in other forums, that is, in national courts, very little action was taken. Prosecutors in Western Europe with jurisdiction over some of these international crimes have pursued mainly African and Nazi criminals along with a few suspects from the former Yugoslavia. Over the past seventeen years, following the start of criminal proceedings against the former Chilean dictator Augusto Pinochet and the former Argentine junta leader Jorge Videla, human rights organizations have started to make use of international criminal law, assisting with and initiating legal proceedings in a variety of cases. These efforts were aimed at securing the prosecution of, among others, members of the Bush administration and the US military, the Israeli military and individuals from Russia and China who are suspected of committing international crimes. Yet most of these attempts were thwarted early on by the various prosecuting authorities involved.
From a legal and human rights perspective, it is fair to say that the defendants brought before various international tribunals and national courts over the last twenty years were generally not the ‘wrong’ people. Almost any independent observer would agree that international crimes were committed in the former Yugoslavia, Rwanda, Sudan and the Democratic Republic of the Congo (DR Congo), and that the role of the suspects brought before the courts in their commission warranted criminal investigations. The question, though, is why criminal cases were launched only in these cases, and only against these particular suspects, and why so few convictions have been secured in general.
[…]
From Chapter Three: Impunity for Western Crimes Post-1945.
Part One: The Colonial Wars
While the long wait for an international criminal court and a robust system of human rights protection hampered Robert H. Jackson’s vision of a system of universal justice, a much greater obstacle was provided by events that unfolded in the various colonies of the Allied forces at the end of the Second World War and in subsequent years.
Critiques of international law arising out of post-colonial theories and posited, among others, by the lawyer Antony Anghie and the TWAIL (Third World Approaches to International Law) group, focus on the fact that international law comprises a series of doctrines and principles developed in Europe—based on European history and experiences—that were then imposed on the wider world.[4] Under that original system only the family of nations, that is, the European countries, could be sovereign states as these were the only states regarded as “civilized” countries, while non-European states were seen as barbaric, backward and uncivilized. It was only through colonialization that international law was universalized. This line of criticism holds that the current North Atlantic imperial mission to “civilize” the rest of the world uses terms such as development, democratization, human rights and good governance to justify encroachments on the sovereignty of the countries they target under the banner of “modernization.”
Similar arguments are put forward by Makau Mutua, a Kenyan-born professor at Buffalo Law School, who sees human rights and the attempt to make such rights universal as a “historical continuum” of an ongoing tradition of the West’s conceptual and cultural dominance. The underlying cause of this, he argues, is the West’s unshakeable tendency to propagate European values by belittling and demonizing non-Europeans and conceptualizing them as “others”. As such, he says, the globalization of human rights is in keeping with the historical trend whereby the supposedly morally superior West attempts to “civilize” the rest of the world.[5]
As the Second World War drew to a close, the European colonial powers were faced with a dilemma. In order to defeat Nazi Germany, it was necessary to mobilize the Third World and to access its material and human resources. To secure these resources, anti-racist and egalitarian rhetoric was employed to construct an ideological opposition to National Socialism. By the end of the war, self-confidence was growing among those in the Third World who had taken part in the war effort, giving rise to growing expectations of liberation from colonial rule. This prompted colonially-minded politicians in Britain and France, who feared losing their colonies and political influence, to try to block binding international agreements that emphasized the right to self-determination of peoples or denounced colonialism. Despite these fears, both states were involved in shaping the new post-war system, which included the Universal Declaration of Human Rights of 10 December 1948 and the Geneva Conventions of 12 August 1949. Furthermore, racial discrimination and political persecution soon became a permanent topic at the fledgling United Nations.
Against this background, it is easy to see what prompted the British Colonial Secretary Arthur Creech Jones to write in a confidential circular to the colonies in 1949 that the Universal Declaration of Human Rights could become a “source of embarrassment” with serious consequences for colonial politics.[6] After defeating the German Reich, France and Britain were particularly interested in restoring their own colonial empires by way of an updated, development-based form of colonialism. Their plans were met with intense opposition, particularly since India and Pakistan had already become independent and Ho Chi Minh in Vietnam and Sukarno in Indonesia had also made pronouncements of independence.
As part of the current debate on universal justice, it is useful to look back at the colonial crimes committed by Western powers, particularly in the period following the Nuremberg trials and the signing of the Universal Declaration of Human Rights. The history of these crimes reminds us that not so long ago, the same Western states that now champion human rights, humanitarian intervention and good governance were committing international crimes with impunity—the same kinds of crimes they now point to in other countries to justify encroaching on their sovereignty and reordering their political systems.
NOTES
[1] This book was written in German in 2011 for the Wagenbach Publishing House and the German Center for Political Education (Bundeszentrale für Politische Bildung). It has been translated and updated for this edition.
[2] Interview with Palitha Kohona in the Daily Mirror, 20 August 2009.
[3] This aspect is influenced by my experiences as a lawyer and activist. Along with the German criminal complaints mentioned in this book, which concern crimes during the Argentine dictatorships, in Uzbekistan, Guantánamo and Abu Ghraib, I was and am involved in work on behalf of the victims in the following cases: the Mercedes-Benz and Ledesma sugar cases in Argentina which concern these companies’ involvement in dictatorship crimes; the Nestlé case in respect of the murder of a Colombian trade unionist; an Austrian criminal case with regard to torture sponsored by the head of the Chechen Republic, Ramzan Kadyrov; criminal investigations with regard to Guantánamo in France and Spain; cases relating to CIA secret prisons in Poland; to the torture of prisoners by UK forces in Iraq; as well as cases in Germany on the Chilean Colonia Dignidad; the CIA abduction of Khaled El-Masri; and the 1999 NATO airstrike on Varvarin.
[4] Antony Anghie, “Die Evolution des Völkerrechts: Koloniale und postkoloniale Realitäten,” in Kritische Justiz, 2009, vol. 42, no. 1, pp. 49–63, with further references.
[5] Makau Mutua, “Human Rights in Africa: The Limited Promise of Liberalism,” in African Studies Review, 2008, vol. 51, no. 1, pp. 17–39.
[6] Fabian Klose, Menschenrechte im Schatten kolonialer Gewalt: Die Dekolonisierungskriege in Kenia und Algerien 1945–1962, Oldenbourg Wissenschaftsverlag, Munich, 2009, pp. 56 ff.
[Excerpted from Wolfgang Kaleck, Double Standards: International Criminal Law and the West, by permission of the author. © Verlag Klaus Wagenbach, Berlin and Torkel Opsahl Academic EPublisher, 2015. For more information, or to download the full text of this book, click here.]
[Note from the author: I would like to thank my colleague Simon Rau for his help with the preparation of this post.]