INTERNATIONAL HUMANITARIAN LAW AND TERRORISM, by Andrea Bianchi and Yasmin Naqvi. USA: Hart Publishing Ltd., 2011. 407pp. Hardback $164.00. ISBN: 9781849461375
Reviewed by Kawu Bala, Bauchi State Judiciary, Nigeria. Email: kabaaz [at] gmail.com
Francesca Lessa and Leigh A. Payne’s edited work, AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVE brings together an impressive collection of experts on transitional justice to consider the appropriateness of amnesty for human rights violations that are criminal acts under international law (p.1). While politicians and government officials may find amnesty a realistic way of “moving forward” in a post-conflict world, most scholars reject the granting of amnesty in this context. The book is timely and should be studied because it effectively hits the nail on the head in this uncertain time of horrible conflicts that are devastating and dismembering the world.
Since the famous Nuremberg and Tokyo Trials, and subsequent creation of the International Criminal Court (ICC), it has been the attempt of the international community to hold perpetrators of lawless conflicts accountable for their actions (p.2). This is against a reality that amnesty is as old as warfare, and favored by some as a contributor to transitional stability (p.5). However the practice is conflicts with the statement of the United Nations Secretary-General, Ban Ki-Moon (UN, Kampala, 2010, p.2): in “this new age of accountability, those who commit the worst of human crimes will be held responsible.” This, no doubt, is the official position of the UN as a global institution which enforces laws and conventions relating to war. If this is true, then we are now coming back anyway to the point largely agreed in the book that amnesty is unsuitable.
Most of the chapters were papers presented at a conference on “Amnesty in the Age of Accountability: Brazil in Comparative and International Perspective,” held at the University of Oxford in late 2010. The conference is said to be the first for its case studies of selected countries. The contributions to AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY are divided into two parts. In Part I, Kathryn Sikkink attempts to answer what the Age of Accountability means, which serves as the foundation of the book. Her chapter, “The Global Rise of Individual Criminal Accountability,” sees the age as a ‘new trend in world politics’ so that those who commit crimes while in office are punished (p.19). Historically, holding evildoers to account began with the Inter-American Court of Human Rights, the UN International Criminal Tribunal for the former Yugoslavia (ICTY) and the [*417] International Criminal Tribunal for Rwanda (ICTR), and the recent ICC. It was the actions of NGOs which gave birth to the Rome Statute in 1998, emanating from the 1948 Universal Declaration of Human Rights and other comprehensive human rights treaties (p.23), the anti-apartheid convention (p.28), and worldly atrocities, such as perpetrated in the 1970s by military governments in Latin America and the Khmer Rouge in Cambodia. The desire to punish perpetrators of these crimes has never been a smooth ride nor a single historical process but rather separate moves that ‘converge into the justice cascade’ (pp.39-40).
Chapter 2 by Mark Freeman and Max Pensky confirms this nonlinear historical process in bringing to the fore the controversy of amnesty in International Law. The problem with amnesty under transitional justice is that while its proponents see it as the “practical” way to a lasting peace, it is seen by its antagonists as allowing to go free people who should be punished. Both Freeman and Pensky argue that amnesty is important in restoring democracy ‘after period of authoritarian rule’ (p.42) but have interestingly considered it as ‘serious failures of justice’ (p.43). It is not easy to balance amnesty, therefore, amidst the catastrophic destructions of lives and properties we see daily courtesy of armed conflicts around us. Amnesty is like ousting the jurisdiction of courts in times of coup d’état by the military class: archaic, you should say. The wrongfulness is left unaddressed despite institutional measures established to punish these predators and to discourage such future conducts. How can amnesty be balanced with rights to remedy? This remains the top question.
Part II is dedicated to the comparative case studies. In chapter 3 Louise Mallinder uses the Amnesty Law Database to provide empirical challenge to claims of a “justice cascade”: a pattern of amnesty is a challenge to the global norm towards accountability. While laws of amnesty have ‘played a central role in addressing political crises’ (p.71), Mallinder also argues that amnesty is yet to be accepted, having ‘decreased in the last decade’ (p.92) – a nod to the effectiveness of the Rome Statute. Chapter 4 addresses Argentina’s amnesties for the brutal military regime that ruled from 1976 to 1983. Par Engstrom and Gabriel Pereira account that the military had sought to promulgate a kind of immunity law from prosecution until NGOs and the Buenos Aires Lawyers Association took a stand against the government's unconstitutional moves (p.99). It is no surprise that the military ‘refused to cooperate’ with the trials, knowing the full repercussions (p.103).
Military governments are known for their crass violation of human rights. Chapters 5 and 6 discuss the problems of impunity of the highest order that characterize military regimes which have granted power to themselves. Francesca Lessa’s chapter 5 discusses impunity in Uruguay under Law No. 15,848, ‘Caducidad de la Pretensión Punitiva del Estado (Expiry of the Punitive Claims of the State) and the efforts to repeal the provisions of that notorious law (p.124). One shortcoming of the law was that it placed concern solely on property and economic rights (p.129); as expected, ‘ley de Caducidad faced fierce opposition’ and was eventually derogated in 2011 (p.148). In chapter 6 by Paulo Abrăo and Marcelo [*418] D. Torelly corroborate this as they analyze ‘transitional justice in Brazil’ (p.152). Abrăo and Torelly explain that the Brazil amnesty law came from popular demand, unlike other parts of the region. Ironically the outcome has not yielded any fruit as perpetrators of human rights violations from the 22 year military dictatorship (ending in 1985) were not prosecuted until the public hearing of 2008 (p.164). It is not easy, but the civil society should relentlessly watch and act. This is the ‘key’ to making those who want to subvert justice accountable ‘despite the political and legal obstacles that still exist’ in Brazil or elsewhere (p.181).
Two more countries that suffered from years of conflicts, Guatemala and El Salvador, are discussed in Chapter 7 (p.182). Both countries witnessed the disturbing acts of ‘economic, military, and political elites’ in counterinsurgency that devastated these Central American countries (p.183). While a few prosecutions have taken place, ‘general’ and ‘systematic’ obstacles have stalled much progress. Personally, I found Braid and Roht-Arriazo’s discussion interesting; I am aware of the legal and judicial problems having spent few years in Central America. Apart from ‘rampant crime, corruption, and intimidation of judicial actors, lawyers, and witnesses,’ those who benefit from impunity have succeeded in over powering not only these two governments but most of the countries in the sub-region (p.208).These problems are enough to limit legal and justice initiatives no matter how resilient people may be (p.209). It is good however to say that the governments are nevertheless trying to keep things moving. But resources are direly needed to finance the challenges in the legal and judicial sectors.
Discussion on impunity in Africa begins with Chapter 8, focusing on the measures taken to deal with the atrocities in Rwanda and Uganda, while Chapter 9 reviews the history and implementation of South Africa’s conditional amnesty. Phil Clark’s Chapter 8 was based on series of interviews conducted in response to ‘ongoing debate about legality of amnesty for perpetrators of serious human rights violations’ in respect of the Rwandan genocide (p.212) and the ‘destructive civil wars’ in Uganda (p.213). The ‘enormity’ of both the genocide and civil wars has been discussed extensively by scholars. What is interesting here is that apart from amnesty, other ‘nonlegal responses’ including truth and reconciliation were used as measures for dealing with aftermath of the conflicts (p.215). The Kigali government, for example, out of its desire to complement the International Criminal Court, has sought to use the traditional gacaca courts as Sigall Horovit points because “domestic accountability processes are necessary” in dealing with impunity of unimaginable proportion (Vincent, 2012, p.16). But most African traditional institutions such as the gacaca courts, do not earn respect from the Western governments and NGOs and other groups funding them. Thus, the gacaca courts were extensively criticized ‘for failing to meet minimum fair trial standards’, without considering the unique situation Rwanda found itself in nor peculiarities on the African continent (Vincent, 2012, Chapter 2, p.19).
But if the goal is accountability and justice, the snail-like pace of the [*419] International Criminal Tribunal for Rwanda did a poor job (p.219), reaffirming the feeling of many that Africa is treated with disregard or disdain in global affairs.. This is the problem associated with even some of the good works of Amnesty International and the Human Rights Watch (p.221). Local institutions such as gacaca might well prove adequate for genocide trials, and not considering their use seems to show disdain for Africa. Domestic and African initiatives work well in many instances but the colonial relics seem to prevent things from going smoothly. Is this why many conflicts are yet to be resolved, while others keep rearing their ugly heads? As for Uganda, there were talks on amnesty for and disarmament of rebels (p.225) but it was disastrous when amnesty excluded a chunk of rebels from the Lord’s Resistance Army. And the ICC compounded the already complex crisis when it issued its warrant of arrest against the rebels’ leader, Joseph Kony (p.231). This arrest warrant coincided with the manhunt for Kony by the US; is it correct, as Horovit hints, that the key international players in conflicts around the world are at play again here (p.237)? Many would have wanted the manhunt to be within interest of the international criminal justice rather a single country so that it does not give room for cynics.
This brings us to the South Africa’s case. Antje du Bois-Pedain’s looks at the ‘conditional amnesty law’ while dealing with the ugly period of the apartheid regime (p.238). Whether the Truth and Reconciliation Commission has had a positive impact in South Africa may be less important than the fact that many countries have copied its pattern. This may be unfortunate, given that the TRC is ‘a problematic feature of transitional process in which the steps taken to document past atrocities, important as they are in preserving the social memory of these events, are not accompanied by a credible process to hold those responsible for these human rights violations to account’ (p.262). Too much amnesty, not enough accountability.
In Chapter 10, Patrick Burgess’s discussion of post-Suharto Indonesia shows the entangled battle between those who support and oppose amnesties to perpetrators of ‘gross human rights violations’ so that they taste the wrath of the law (p.263). Like South Africa, the Indonesian government has passed a TRC law, but the Constitutional Court reversed the law in 2006 (p.268). So it is best to say that investigation has been blocked by the judiciary. Burgess’s discussion is very interesting as it shows the ‘link between corruption and impunity’ (p.288). Is it possible for “criminals” to punish their brethren?
Finally Chapter 11 provides insight from Cambodia, the horrible legacy of Pol Pot, leader of the Khmer Rouge (p.291), while Chapter 12 is a comparative study of the Spanish Amnesty Law of 1977 which shows that despite public opinion the Spanish judges failed to act decisively in dealing with post-conflict crimes (p.335).
It is clear all the contributors have tried in doing justice to their chosen studies. In the conclusion, Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter return to the initial dilemma raised by the book: [*420] whether amnesty is appropriate. They appropriately note that none of the authors gives a simple answer. It is true that ‘prosecutions may jeopardize transitions from authoritarian rule and civil conflict’ and amnesties ‘may serve a purpose’ (p.337). But how do we go about it then? I would have wanted the contributors to pinpoint amnesties granted in specific countries that were good. The contributors even here have admitted that the problem is “blanket amnesties” just for the sake of transition into democracy (p.339). By the way most commentators see amnesty as a soft-landing to share power after dreaded conflicts. This has been echoed elsewhere as Stef states that “little is known about the impact of this trend on the actual reduction of impunity for human rights crimes, nor about its deterrent effect” (Stef, 2011, pp.2-3). It is a “bargaining chip for peace negotiators seeking to influence the cost-benefit analysis” (Stef, 2011, p.6).
This is the second dilemma which the book has not raised: how to measure the impact of amnesty in the countries studied in the book. Many of the countries are still suffering from impunity of the powerful. The thing that should pre-occupy the minds of the international community is how amnesty should be beneficial more to the victims rather than the perpetrators of conflicts so that amnesties ‘produce accountability outcome’ (p.357). Primarily amnesty should not benefit the “political and military elites with blood stained hands” (Stef, 2011, p.21). This is the simple answer which, unfortunately, the book could not find. Notwithstanding, Francesca Lessa and Leigh A. Payne’s edited book is a valuable resource for the ongoing debate on amnesty.
Sadly, the debate about amnesty may unfold long into the future, as we look around and see more ongoing conflicts. After September 11, 2001, terrorism and fear of terrorism has led countries to reshape their domestic laws; while other states have even jettisoned some of their criminal laws for being “inadequate” in the fight against terror. In this regard “everything changed”; this is the reality at the center of Andrea Bianchi and Yasmin Naqvi’s book, INTERNATIONAL HUMANITARIAN LAW AND TERRORISM. Bianchi and Naqvi address IHL’s concern with terrorism, being a product of ‘armed conflict’ too (p.1). This conflict has made it again “impossible” for countries to abide by the known international rules and conventions related to war. Some conflicts are fading away such as the ones in Kosovo, Sri Lanka, Chechnya, and Turkey; but as of writing this review “new” ones are making our mouths agape. There is constant bloodshed in Syria, Libya, Iraq, Ukraine, Gaza, and South Sudan. The world should expect it as it is orchestrated. It has been made possible for ‘groups to easily buy cheap weapons through the globalized arms market’ (pp.7-8).
Bianchi and Naqvi’s analysis seeks to show that the two doctrines of jus ad bellum and jus in bello have been bastardized in response to terrorism and other similar attacks, instead of being treated in line with the humanitarian laws we know (p.13). Bianchi and Naqvi lay out their argument that the current treatment of terrorists ‘has turned out to be controversial’ (p.15). This controversy is evident in the interpretations and reinterpretations of rules by the [*421] international bodies like the ICJ and UN Security Council when, for example, the ICJ ‘rejected Israel’s justification for constructing a barrier along its frontiers’ as attacks are not from a foreign state but from groups resisting occupation (p.18).
International Humanitarian Law has been hardest hit. What was unlawful has now been made lawful, all in the name of wiping out terrorism. This ‘has brought new challenges to the traditional parameters of jus ad bellum’ (p.21). The international community has chosen which groups to designate as terrorists or separatists and uses other soft names to suit its purpose. To even identify which armed conflicts to legitimize (by showing concern) is now an uneasy enterprise. The unfortunate development is at the door of the IHL, and Bianchi and Naqvi join the likes of Noëlle Quénivet who add that “international humanitarian law (IHL) currently faces a number of formidable challenges” and urge that “IHL norms” need to be respected (2010, p.18)
Bianchi and Navqi argue that the 1949 Geneva Convention and 1977 Additional Protocols I & II offer basics to help regulate armed conflicts (p.55). It is seen that both the ‘war on terror’ and terror itself disregard IHL bounds. Terrorists, in their dastardly acts for example, cut throats of innocent victims, while those who fight them drop bombs and regard widespread civilian casualties as collateral damages. Human rights are not negotiable but the “war on terror” has sought to limit freedom, and vital public information is being suppressed; media bought or compromised as some social critics and human rights activists alleged.
The biggest loser in all this is the truth. Readers are called to begin from the definition of terrorism. Is there an acceptable one? Without making a sound definition, the ‘difficulties of characterizing an armed conflict’ will keep raging on (p.73). Throughout the book Bianchi and Navqi cite controversies which violate international law and sovereignty of states (p.79). Pakistan is crying foul against US drone strikes inside her territory. Which particular International Humanitarian Laws apply, and why, as it relates to the Israeli-Hamas conflicts, nobody is sure of. For in the last Gaza conflict even the ‘Security Council in its call for a cease-fire in Resolution 1860 carefully avoided any express reference to the characterization of the hostilities’ (p.81). The conversation avoids identifying the root causes of terrorism. Dinah Pokempner (2002, p.23) cites the reason that “State violation of basic human rights can degrade social norms more generally, and make terrorist acts seem more publicly acceptable.” Additionally, we have witnessed post-9/11 opportunism where states designate any group oppose to them as terrorists in pretext to crack down on legitimate protestors ‘as a means to intimidate any possible opposition to the established governments’ (p.95). The image everywhere is gruesome, of victims who knew not the reasons behind some of the conflicts that have consumed them, like the recent downing of the Malaysian MH17 where 298 people perished along Ukraine-Russian border. It is good that Andrea Bianchi and Yasmin Naqvi consider the ‘need to lay down minimum humanitarian standards in all situations of armed conflicts’ (p.134). This indeed, is part of the solution, to revive ‘public conscience’ (p.140). [*422]
Bianchi and Navqi assert that the ‘principle of humanity’ no longer exists (p.167). In practice governments need to wake up to allow justice and the rule of law to apply to all. This will require an adjustment of attitude so the basic rules and principles of the law of The Hague apply to their actions to respect the laws applicable to war (p.170); this means that in the treatment of terror suspects, determination of legal status, and detention, IHL should play a role (p.286). The greatest way to deal with terror, as Bianchi and Naqvi rightly state ‘can be couched in more orthodox international law terms’ rather than by going outside the Vienna Convention (p.387). But the current limitations imposed on IHL rules because of transnational terrorism is disastrous (p.389). This provides background for suspicion among nations that cannot even agree on the exact definition to be given to the word, “terrorism.”
Proponents of and adherents to International Humanitarian Law will agree. The challenge is to the larger international community: in the words of William K. Lietzau (2002, p.82), “The task before us is not to reject precedent, but rather to build on the foundation of existing law – national security law, criminal law, and the law of armed conflict – as we seek justly to apply their principles to the new, heretofore inappreciable challenges of the war on terrorism.” And a commitment to IHL brooks no excuse: “We can say that governments and non-state actors must comply with IHL and IHRL rules. The struggle against terrorism does not provide an excuse,” argues Paul Tavernier (2010, p.8).
Readers who want to understand the present bizarre and ongoing complexity of the unresolved tragedies around the globe should read these books. And though the books are filled with the grim reality of “deliberate” institutional, legal and judicial confusion that look like mistakes, they also offer hope that the international community has an existing framework, rooted in the Geneva Conventions, for the conduct of conflict and post-conflict situations, no matter how “new” they appear. The danger of course for those who conduct these conflicts as if they present “new” circumstances, and thus are not bound by “old rules” is that they will find themselves in need of TRC or another amnesty mechanism.
International Institute of Humanitarian Law. 2002. “Terrorism and International Humanitarian Law: Challenges and Responses.” Contributions presented at the Meeting of Independent Experts on Terrorism and International Law by the International Institute of Humanitarian Law Sanremo, 30 May - 1 June 2002 and the Seminar on International Humanitarian Law and Terrorism organized by the International Institute of Humanitarian Law in co-operation with the George C. Marshall Center Sanremo, 24 - 26 September 2002. Accessed June 24, 2014 online at http://www.iihl.org/iihl/Album/terrorism-law.pdf
Nhemielle, Vincent O. (ed.) 2012. AFRICA AND THE FUTURE OF INTERNATIONAL CRIMINAL JUSTICE. The Netherlands: Eleven International Publishing. [*423]
Quénivet, Noëlle. 2010. “The ‘War on Terror’ and the Principle of Distinction in International Humanitarian Law.” ACDI, Bogotá Vol. 3 Especial: 155-186.
Tavernier, Paul. 2010. “Consequences of the Application of International Humanitarian Law in the Struggle against Terrorism.” CZECH YEARBOOK OF PUBLIC & PRIVATE INTERNATIONAL LAW. pp.65-72.
United Nations, Secretary-General, “An Age of Accountability. Address to the Review Conference on the International Criminal Court,” Kampala, 31 May 2010, p. 2. Accessed June 29, 2014 online at http://www.un.org/sg/selected-speeches/statement_full.asp?statID=829.
Vandeginste, Stef. 2011. “Bypassing the Prohibition of Amnesty for Human Rights Crimes Under International Law: Lessons Learned from the Burundi Peace Process.” NETHERLANDS QUARTERLY OF HUMAN RIGHTS, 29(2): 189-211.
Copyright 2014 by the author, Kawu Bala.