Double Standards: International Criminal Law and the West Wolfgang Kaleck

Double Standards: International Criminal Law and the West Wolfgang Kaleck Double Standards: International Criminal Law and the West Wolfgang Kaleck 2015 Torkel Opsahl Academic EPublisher Brussels This and other books in our FICHL Publication Series may be openly accessed and downloaded through the web site http://www.fichl.org/ which uses Persistent URLs for all publications it makes available (such PURLs will not be changed). Printed copies may be ordered through online and other distributors, including https://www. amazon.co.uk/. This book was first published on 29 May 2015. © Verlag Klaus Wagenbach, Berlin and Torkel Opsahl Academic EPublisher, 2015 Translated into English from the original German (‘Mit zweierlei Maß’). All rights are reserved. You may read, print or download this book or any part of it from http://www.fichl.org/ for personal use, but you may not in any way charge for its use by others, directly or by reproducing it, storing it in a retrieval system, transmitting it, or utilising it in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, in whole or in part, without the prior permission in writing of the copyright holders. Enquiries concerning reproduction outside the scope of the above should be sent to the copyright holders. You must not circulate this book in any other cover and you must impose the same condition on any acquirer. You must not make this book or any part of it available on the Internet by any other URL than that on http://www.fichl.org/. ISBN 978-82-93081-67-8 (print) and 978-82-93081-83-8 (e-book) FOREWORD The promise: real universal justice can contribute to overcoming international crimes and healing the traumas of individuals and of societies. As a lawyer and human rights activist who has been active in pushing for accountability of those responsible for international crimes on behalf of survivors from many regions of the world, I am also aware of the restrictions of (international) criminal justice. In many cases, however, national and international prosecutions for international crimes can indeed constitute an important part of accountability efforts which allow societies to come to terms with past atrocities. If this is the case or not will depend to a large extent on the needs of the affected communities and whether the respective criminal justice mechanisms function in a way that adequately ad- dresses their grievances. But it will also crucially depend on the legitimacy the respective criminal proceedings enjoy in the affected societies. The project of international criminal justice has, however, increas- ingly been the subject of criticisms of bias and political selectivity. Alt- hough 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 In- ternational Criminal Court (‘ICC’), which embodies the promise of universal justice irrespective of a perpetrator’s office, race, nationality or political weight, has so far only 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. Scepticism 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. These criticisms threaten to undermine the legitimacy of international criminal law and they thereby adversely affect its potential to contribute positively to the collective coming to terms with international crimes. i Although much of this criticism is justified, I continue to believe that an international criminal justice system which is based on the idea that even the most powerful are equal before the law and will be held accountable for crimes they committed has the potential to make a differ- ence to the lives of the victims of international crimes, the affected societies and the world. The very claim to universality and the peculiar work- ings of legal systems open up space to expose existing double standards as contradictory and unjust and to push for accountability of the powerful. In this book I assess the existing double standards in the application of international criminal law, especially in connection with the question of accountability for international crimes committed by Western states. Its aim is constructive in nature. So far this important debate has been left mostly to the opponents of international criminal law, 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 seem to be mainly driven by the urge to avoid ending up in the dock in The Hague themselves. 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 is not to ultimately fail for 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 motive behind the book is to raise awareness in respect of existing double standards and problems of selectivity amongst practitioners and scholars of international criminal law. Quite often we may lose sight of the fact that a Donald Rumsfeld and a chief executive officer of a transnational corporation can be as much a war criminal as a Muammar Gaddafi or a Joseph Kony, and that the massacres caused by missiles and airstrikes can be just as abhorrent as those perpetrated by the use of ma- chetes and AK-47s. But even those who argue in principle 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 ii standards are far from mutually exclusive. Rather, the issue of double standards will have to be discussed and addressed, if the lack of legitimacy, already mentioned, is not to further hamper the development of international criminal law. This book is therefore also a manifesto to not 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. As Secretary-General of the Berlin-based European Center for Con- stitutional and Human Rights (‘ECCHR’), a non-governmental organisa- tion that co-operates with human rights defenders from all over the world in order to hold accountable those responsible for grave human rights violations, I am 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 reduction of existing double standards in international criminal law. In this book I also tell some of 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. For their comments and suggestions I thank Jörg Arnold, Bill Bow- ring, Andrea D. Bührmann, Andreas Fischer-Lescano, Anna von Gall, Florian Jeßberger, Albert Koncsek, Andreas Schüller, Alexa Stiller as well as Lena Luczak and Susanne Schüssler from the publishers Klaus Wagenbach. I would also like to thank Jen Robinson and the Bertha Foundation for their support. For their support with the English version I would like to thank Lisa Bausch and Simon Rau, Fiona Nelson, Lindy Divarci and Birgit Kolboske for the translation and the editors from the Torkel Opsahl Academic EPublisher, especially Morten Bergsmo and Gareth Richards. Wolfgang Kaleck, April 2015 iii TABLE OF C ONTENTS Foreword ................................................................................................... i 1. Introduction: International Criminal Law Between Law and Politics ............................................................... 1 1.1. Principles of International Criminal Law ................................... 5 1.2. Prosecution: Horizontal and Vertical Selectivity ....................... 7 2. The Nuremberg and Tokyo Trials and the First Flaws in the System .................................................. 11 2.1. Victor’s Justice? ......................................................................

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