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[Noah Feldman] Unbearable slowness of war crimes justice

By Bloomberg

Published : Dec. 4, 2017 - 17:56

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The suicide of Croatian war criminal Slobodan Praljak in open court last week was bizarre. Sure, Hermann Goering famously cheated the executioner at Nuremberg by swallowing cyanide. But Praljak wasn’t going to be executed, no matter how many innocent civilians he was found guilty of killing. In the highly civilized, highly bureaucratic world of the International Criminal Tribunal for the Former Yugoslavia, the worst thing that can happen is a long jail sentence -- like the 20 years awarded to Praljak.

It’s precisely the old-timey, anachronistic aspect of the public suicide that carries a lesson. There’s a reason the act seemed very 20th century: because it was. The crimes for which Praljak was convicted took place in 1993, when he let his soldiers round up Muslims for slaughter. He was indicted in 2004, and gave himself up for trial then. He was convicted in 2013, 20 years after his crime; his suicide followed the denial of his appeal four years later, in 2017.

The lesson is the unbearable slowness of international criminal justice. And it’s not only a lesson about Europe. The trials of the Sept. 11 plotters at the US military tribunal at Guantanamo Bay, Cuba, are going on now, and it’s unlikely any sentence will have been carried out when the 20-year mark comes a few years from now.

There are three major problems with such a super-slow judicial process. One is about justice to the particular defendant, who may claim a lack of due process. A speedy trial is a basic constitutional right in the US and in most jurisdictions. The main reason is that no one should be detained for too long without being convicted, but it’s also true that the passage of time makes witnesses unreliable and can make it harder for a defendant to mount a credible defense.

The difficulty with this criticism as applied to The Hague trials or Guantanamo is that delay can also be the result of a careful process designed to respect all of a defendant’s rights. If the defense has made the trial go slowly, the defendant shouldn’t be able to use that delay to impugn fairness.

The second problem with a slow process involves the cruelty of holding someone for too long before executing a sentence. On the US Supreme Court, the former Justice John Paul Stevens took the view that it becomes unconstitutional to execute someone for a crime when he has been on death row for as long as 17 years.

In the case of the Yugoslavia tribunal, the cruelty wouldn’t stem from keeping the defendants on death row, because, like Europe and most of the rest of the world, the tribunal doesn’t administer the death penalty. It could conceivably be argued that spending a long time awaiting the resolution of one’s case has some elements of cruelty. Once again, however, it would be hard to make this claim if the delay was attributable to a careful process of trial and appeal.

That leaves the most important problem with a slow judicial process: the extended gap between the crimes and the ultimate punishment. This may not be a problem as a matter of pure justice, because terrible wrongs deserve to be addressed even after much time has passed. But it is a significant problem when it comes to the pragmatics and the symbolism of punishing terrible wrongs like those that took place in Yugoslavia.

Practically, the deterrent effect of the eventual punishment is bound to be substantially reduced when it takes so long to bring the perpetrators to justice. A potential genocidal actor might conceivably think twice based on the imminent threat of punishment. But if that punishment is many decades in the future, that actor, like the rest of us humans, will be inclined to discount the future probability of punishment.

Symbolically, the problem with long-delayed justice lies in the slow, grinding nature of the war crimes tribunals when compared with the short, sharp shock of most war crimes. When a trial takes so long, the problem isn’t so much that the evil of the underlying crime becomes banal as that the judicial process takes on its own bureaucratic banality. The process essentially ensures that no one, least of all the defendants or the survivors, can relate the trial to the actual events that gave rise to it.

Praljak’s suicide stands out because it seems so serious, so extreme and so urgent. That’s in stark contrast to the dullness of the tribunal’s justice, slowly moving along a conveyor belt outside of public attention. Soon enough, however, we’ll forget about Praljak, the way we forget about all trials that take so long. And that’s just the problem.

By Noah Feldman

Noah Feldman is a Bloomberg View columnist. -- Ed.