The Unbalanced Scales of International Criminal Justice
Edited by Sébastien Chartrand and John Philpot
Montréal, Quebec: Baraka Books, 2014
Justice Belied: The Unbalanced Scales of International Criminal Justice is a collection of essays, speeches, interviews and reflections drawn mainly from the proceedings of the third International Criminal Defence Conference, ‘International Criminal Justice, Justice for Whom?’, which was convened in Montreal in late 2012. The editors, Chartand and Philpot, proclaim their book as the “first independent, defence–oriented book on International Criminal Law” (page 275). Its 16 mainly Canadian and African contributors provide ‘experienced observer’ perspectives as criminal defence counsel, legal assistants, defence investigators, legal translators, consultants, mediators, former diplomats, academics, and alternative media broadcast journalists who are highly critical of international criminal law vis-à-vis current debates about its anti-African and neocolonial bias. Several of the authors ── in particular Taku, Nsengiyumva, Larochelle, Lyons, Philpot, Taylor, Palou-Loverdos, and Jacobs ── base their firsthand accounts on their considerable experience as international criminal defence practitioners and investigators, working mainly with the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the International Criminal Court (ICC), while other contributors (Lafontaine) are recognized Canadian international legal academics.
A main aim of the book is to “shed light on the issues, problems and injustices that International Criminal Law has raised” (page 13) in the twenty years since the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda were established as measured against the authors’ ideals for procedural and distributive justice, including self-determination for African nations. Consistent with its title and stated aim to challenge the ‘aura of respectability’ associated with international criminal law, the main thesis of the book is that international criminal justice is partisan, selective and unjust, essentially serving western ── especially American ── economic and geopolitical interests as exemplified by the non-prosecution of western powers for their alleged international crimes (for example chapters 1, 2, 14, 16, 17). The book is thematically organized into four sections beginning with African and African American perspectives on International Criminal Justice (chapters 1-7), followed by a section on the ad hoc International Criminal Tribunals (chapters 8-12), and then a brief section (chapters 13 and 14) on universal jurisdiction discussing inter alia efforts to prosecute RPA/RPF suspects before the Spanish courts and the Kuala Lumpur Initiative to Criminalise War. The fourth and final part of the book on ‘Justice for All?’ (chapters 15-17) addresses the myriad challenges and mixed legacy of international criminal justice to date, although, like the preceding sections, it focuses mainly on what the authors see as the limitations of the ICTR, the SCSL and the ICC in Africa.
Overall, the book is engaging to read and timely in reflecting on the legacy of international criminal justice in the 20 years since the ad hoc tribunals were created and in the first 10 years of the ICC’s operations. Certainly, the books’ main themes resonate with existing debates about the questionable contributions of international, hybrid and national jurisdiction criminal trials in providing an accurate historical record of complex political conflicts, combating the impunity of those thought to be most responsible for international crimes, and facilitating national reconciliation and the restoration of peace. The book is true to its stated aims and offers a strong, and at times indignant, critique of the selective and often one-sided nature of international criminal law prosecutions, focusing especially on the ICTR’s non-prosecution of senior RPA/RPF military and civilian officials, the contentious SCSL prosecution of Charles Taylor, the provocative ICC intervention in Kenya, and the controversial Rwandan prosecution of Victoire Ingabire for ‘genocide ideology’ and ‘divisionism’ ostensibly to silence her as a political opponent of the Kagame regime.
Alongside these more macro-level critiques, a main contribution of the book is its chapters that provide insider and defence-oriented perspectives on the mechanics of setting up international and hybrid criminal tribunals (for example, chapters 1 and 10). In addition, several other chapters (4, 5, 8, 9, 11, 15, 17) highlight the many due process and fair trial challenges associated with specific international crimes trials, including allegations about the fabrication and questionable credibility of evidence, witness manipulation and collusion between witnesses, secrecy and non-public testimony to protect witnesses, inaccuracy of cultural and linguistic translation, inconsistency and poor quality of prosecutorial and judicial decision-making, a failure to disclose exculpatory evidence, tensions between international and national prosecutions, a lack of independent review, and the mistreatment of acquitted criminally accused.
At the same time, some of the authors’ most provocative assertions, including the dedication to Akayesu who the editors proclaim is an ‘innocent man’, are either left unexplored or are not explored in sufficient depth (for example, the main analysis of the Akayesu case is provided at pages 172-174). In comparison with other legal analyses, such as Combs’ influential Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press, 2010) who some of the Justice Belied contributors cite as evidence for their claims, from a social science perspective several of the chapters lack a rigorous empirical foundation and some of the more oratorical chapters (such as 2, 6, 14, 16) arguably detract from the defence-oriented coherence of the book notwithstanding the laudable credentials of these authors. Indeed, the book is relatively partisan (as evidenced by the title of chapter 17 on international criminal law as an ‘instrument of US foreign policy’) and somewhat selective in the cases it presents given its mainly regional focus and review of only a few of the cases that have been brought before the ICTR, the SCSL, and the ICC. The analysis of the legacy of international criminal justice is also somewhat ‘unbalanced’ given its almost exclusive focus on limitations (the academic Lafontaine and Sullivan chapter is an exception here providing a more impartial review of the mixed legacy of international criminal justice). As well, the book offers relatively few suggestions for legal reforms, preferring political solutions instead, including a return to the status quo ante of state sovereignty and non-intervention (potentially appealing from the perspective of those who perpetrate international crimes, but perhaps less so for their victims).
In brief, the book is likely to appeal to the general public and to academic audiences seeking insider and defence perspectives on the workings of international, hybrid and national jurisdiction courts prosecuting international crimes, in particular before the ICTR, the SCSL and the ICC in Africa which are the book’s predominant focus.
HAYLI A. MILLAR
University of the Fraser Valley