Crime and Global Justice: The Dynamics of International Punishment, with Daniele Archibugi

ADAM READ-BROWN: Hello, and welcome to another episode in our Ethics & International Affairs interview series sponsored by the Carnegie Council. My name is Adam Read-Brown, and I am the managing editor of Ethics & International Affairs, Carnegie Council's quarterly peer-reviewed journal, published by Cambridge University Press.

With me today is Daniele Archibugi here to discuss his new book Crime and Global Justice: The Dynamics of International Punishment, co-authored with Alice Pease and out now with Polity Press.

Daniele, thanks so much for joining us.

DANIELE ARCHIBUGI: Thank you very much for having me.

ADAM READ-BROWN: Professor Archibugi is a research director at the Italian National Research Council in Rome, affiliated at the Institute for Resarch on Population and Social Policy, and professor of innovation, governance, and public policy at the University of London, Birkbeck College, Department of Management. He is also an advisor to the European Union, the Organization for Economic Co-operation and Development (OECD), several UN agencies, and various national governments.

He works on the economics and policy of technological change and on political theory in international relations. He has authored and co-authored numerous books and articles on cosmopolitanism, technological change, and global governance, including The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy; Innovation and Economic Crisis: Lessons and Prospects from the Economic Downturn; and most recently, Crime and Global Justice, which will be the subject of our discussion.

With that introduction, we will dive right in. I will start off by saying that I really enjoyed the book.

DANIELE ARCHIBUGI: I am happy to hear that.

ADAM READ-BROWN: Though I certainly can't claim to be an expert in international criminal justice, I found it accessible, informative, and insightful. I think among other things it makes a great educational tool.

In that vein, you begin the book with this overview, that I found as a reader to be very helpful, of the history on global criminal justice going back to before World War I, to Nuremberg, Yugoslavia, and Rwanda in the 1990s, the establishment of the International Criminal Court (ICC), up through the present. You note early in this overview that for most of the history of interstate warfare, as you say, "Enemies could be killed, ideally in battle, but they could not be put on trial."

What changed in the 20th century? How did we see this norm start to break down and shift?

DANIELE ARCHIBUGI: After the Second World War, the winners of wars were not any longer willing [only] to win on the battlefield, they also wanted to have a certain moral superiority over their enemies and often with good reasons, because they had to fight against the Nazis, and the Nazis committed so much brutality that there was a basic ethical difference between the way in which the Anglo-Americans and the other participants fought the war and the way in which the Nazis fought the war. Therefore, after the war, they started to think, What can we do in order to establish some ethical principles in international affairs? Of course, the Nuremberg trial was the benchmark for that.

Unfortunately, the Nuremberg trial was not followed by consequent developments. The new Cold War made countries go in different directions and so on. But still, there was an important development, and that was the principles of Nuremberg, 1948. After that, we didn't have anything.

It took a long time before these principles were actually taken into action with the idea that at a certain point, enemies should be put on trial and that the principles of justice which applied to enemies could also apply to yourself.

ADAM READ-BROWN: Right. As you note there, the Cold War really put a sort of freeze on this development.

DANIELE ARCHIBUGI: Indeed.

ADAM READ-BROWN: In the book, you got at the core of these four case studies. In fact, all of the developments are happening after the end of the Cold War. That illustrates that point.

DANIELE ARCHIBUGI: Indeed. Our interpretation is that within the last quarter of a century, we started to have a second season of international criminal justice. After Nuremberg, we are in the middle of a second season which has not yet ended and hopefully will not end but will actually, hopefully, further develop.

Indeed, we tried to get five cases.

ADAM READ-BROWN: I'm sorry, five, yes.

DANIELE ARCHIBUGI: Well, four cases because one is the same institution with two different trials. So four, but five if you like, important heads of state at the bar.

So first of all, we decided to concentrate on heads of states—not on the small fish but on the big fish. That is part of our approach. Why? Because we think that to concentrate on soldiers who commit war crimes is important but not really what makes a difference. In many cases, the war crimes committed by soldiers or by state agents can also be prosecuted by the states themselves. Martial courts can take care of some unfortunate and very bad developments within their own armies or their own forces.

If we concentrate on the heads of states, we appreciate why the international component of criminal justice becomes important, for the very simple reason that almost never happens, that a state decides to put on trial its own head of state, even if he's not any longer incumbent. At the end, the basic assumption is that head of states of your own state cannot be put on trial.

ADAM READ-BROWN: Right. I understand the reason for going for the heads of state and certainly not the small fish. Why the focus on these individual trials themselves and not on the institutions themselves more broadly? What did you feel was the advantage in taking this view?

DANIELE ARCHIBUGI: First of all, there's a lot of literature which goes into exploring the single judicial devices for each tribunal and so on. This literature is important and is what lawyers should do but often these tribunals can be empty boxes. Therefore, if you stand in an empty box, that's fine. You study the details, but you don't really manage to identify the political impact of all these sorts of things.

Second, we tried to assess four different legal tools. The first case, Augusto Pinochet, started through universal jurisdiction of a domestic court. The second case, Slobodan Milošević and the other one is Karadžić, is an ad hoc tribunal generated by the United Nations Security Council.

The third one, Saddam Hussein, is a national court which could not exist without the support by the United States. Basically, it was a case of the winning country which instituted a national court.

The last case, Omar al-Bashir and the new International Criminal Court, is one of the very few cases which have actually led to incriminations by the International Criminal Court.

Hopefully, through these cases, you can have a lot of broad perspective on the various instruments of what, according to our view, is the new system of international criminal justice created over the last quarter of a century.

ADAM READ-BROWN: That makes sense. Each one of these cases, as you have been talking about, is unique. The institution, either permanent or temporary, that is in place to try each of these individuals is unique.

So there are differences across the cases and across the mechanisms being used to try them. But there's also this larger difference that you also discuss in the book, of course, between international criminal justice and domestic criminal justice, as most people are just familiar with criminal justice.

Of course, there are many, many differences. What do you think is a helpful way to really think about some of the major differences in terms of what the overall goals of global criminal justice are?

DANIELE ARCHIBUGI: Yes. I think the fundamental difference is just one: the perceived legitimacy. National institutions are perceived to have a certain amount of legitimacy which derives from the fact that they have been working for a long period and so on.

Sometimes these national institutions are not perceived as legitimate. Take the case of [former] Brazilian President Lula these days. He's indicted, he has been arrested, and this is highly contested. First of all, we should not forget that Lula has been arrested for alleged crimes he committed within the country, not for international crimes. But still, you really see that often even the national justice is not having so much legitimacy.

But in the case of international trials, the legitimacy is always challenged. It was challenged in Nuremberg. It was challenged during the Adolf Eichmann trial. It has been challenged for all these trials that we're taking into account. All defenders complained that the tribunal was not legitimate to try them.

ADAM READ-BROWN: This is the strategy, you give it a name in the book, rupture.

DANIELE ARCHIBUGI: Yes.

ADAM READ-BROWN: You note that even at Nuremberg, the legitimacy was challenged, but then it is given a name by Jacques Vergès, a French lawyer. Can you tell us, how does his innovation impact [the global criminal justice landscape]?

DANIELE ARCHIBUGI: Jacques Vergès is a typical devil's advocate. He started to be a very brave lawyer defending Algerian insurgents against the French occupation in the 1960s. The more he passed, the more he started to be a lawyer for the worst possible criminals in the world. He defended the Nazi criminal in Lyon, Klaus Barbie. He defended the terrorist Carlos the Jackal, and so on.

He was not so much interested in getting lower sentences for the people at the bar or for his own client. He was interested in having popularity for himself. His basic idea was to say to the court, "You are not legitimate to try my client because you and the power which instituted the court have committed worse crimes." That was a typical thing.

In the case of Algeria, he said the French occupation forces committed an enormous number of crimes in the colonial state, and therefore the Algerian resistance was totally similar to the French resistance during the Second World War. Therefore, they are not criminals; they are heroes. He did the same with Klaus Barbie, with the terrorist Carlos, and so on.

This technique has become widely diffused also because many of the criminals at the bar cannot really say that they are not guilty. All the criminals at the bar committed an enormous number of egregious crimes. Saddam Hussein could not claim, "I'm innocent." Karadžić could not claim, "I'm innocent. I have not killed people. I have not committed war crimes," and so on. For them, the only possible strategy is to say everybody is guilty. "You, judges, are guilty. I'm guilty. Therefore, everybody should be absolved."

ADAM READ-BROWN: Right. You mentioned Milošević also uses this. As you said, almost every one of the characters, so to speak, in your book employs this strategy. It is almost intuitive to us today. It seems that of course this would be the grounds on which these defendants would attack the courts, which speaks to how much it is diffused.

There's a scene in the book with Milošević where someone is recounting how he is so charming and he has the court, everyone in the room, laughing. He has a sharp wit. That seems to play into this theatrical element that is always there with these trials. You even say that at times the true winner is not the person with the greater understanding of the arguments but simply the better actor, which seems incredible.

DANIELE ARCHIBUGI: Yes, it's incredible. But we are here to question the very nature of international trials because at the end, who is the winner? The winner is the one who gets absolved or the one who manages to transmit the most convincing narrative of the events. You can be condemned to everything, including the death penalty or to life in jail, whatever it is, but then you might be able to provide a very convincing narrative of what has happened.

That was the case of Slobodan Milošević. He was clear, witty, and concise. Therefore, if you study this trial, he definitely was a winner.

Take the case of Saddam Hussein. Saddam Hussein was possibly the single most egregious criminal of the second half of the 20th century. At the trial, he was very successful because everything he said about the lack of an independent trial in which the defense had access to evidence, which was the best defense and so on, did not apply. Three lawyers of the Saddam Hussein defense team were killed. Therefore, can we really say that he had the best defense?

Therefore, in this case, I would say the trial of Saddam Hussein was really a disgrace because at the end he emerged as a martyr. The only glorious moment in Saddam Hussein's life was his trial. That suggests that perhaps we should revise something about international criminal justice.

ADAM READ-BROWN: Somewhat rhetorically you pose the question in the book: Was his trial any better than a summary execution? What was gained? Which is a fairly provocative question, but you have just outlined the damage that it did.

DANIELE ARCHIBUGI: Indeed. I am, of course, against summary executions under all occasions. I am against the death penalty and so on. Still, you have to think about these sorts of things somehow. Take the case of Gaddafi. Take the case of bin Laden. In principle, bin Laden could have been taken to New York, put on trial, and judged in front of the victims and the relatives and so on. This would have been the liberal strategy.

At the end of the day, are we sure that there wouldn't have been some people in the world or even here in New York who would have sympathized with this terrible criminal? Therefore, here it is quite clear there are some contrasting views between the reasons of politics on one hand and the reasons of justice and legal norms.

ADAM READ-BROWN: I was struck that it almost doesn't seem as though the defense and the prosecution in these cases are even working at directly oppositional goals. They are working at oppositional goals, but they are in parallel universes in a way.

Is there any way for the prosecution to effectively counter someone like Saddam or Milošević, who is so commanding in these cases and is there to present their own narrative?

DANIELE ARCHIBUGI: I think the most important component for the prosecutor is to give voice to the victims. This in some cases was very successfully done. For example, take the case of the Eichmann trial, the most important history about the Eichmann trial, which allowed the victims to provide their own view.

This has also happened, for example, for this ad hoc tribunal for the former Yugoslavia. Really at this point you have a lot of conflicting views between the victims and the relatives of the victims who testified and provided evidence—went to the tribunal premises with the photos of the people who had been killed and so on—on the one hand, and on the other hand with groups in Serbia and Bosnia or even in Serbia which were still considering today Karadžić and Mladić as war heroes rather than as war criminals.

At least the more you give voice to the victims, the more it is difficult for the people at the bar to play the card "everybody is guilty, and therefore everybody is innocent."

ADAM READ-BROWN: Right, so presenting that strong counter narrative and allowing that voice.

DANIELE ARCHIBUGI: Yes.

ADAM READ-BROWN: That makes sense.

We have talked about a number of the shortcomings, the ways that these trials can often have unintended consequences, the revision of history, or presenting an alternative narrative, delegitimization of the court proceedings, or lack of reconciliation between the parties. But one of the issues that you focus on as the key issue that transcends all of these cases and all these tribunals is the issue of selectivity as the biggest problem, this idea that the courts are always biased in some way. They are cherry-picking cases.

First of all, I guess, why is this the biggest problem, and what does an institution like the ICC do to combat that?

DANIELE ARCHIBUGI: That goes very much into the core of your own activities at the Carnegie Council for Ethics in International Affairs, and therefore, I really welcome this question.

The problem is that judicial devices are created in the hope to tame power. That was the main ideal, the ideal of Hans Kelsen and so on. We very much belong to this tradition.

But at a certain point, we should recognize that power is much better in using these legal devices. In the end the selectivity is precisely that the powerful players are able to put at the bar the losers or the weak players. I would like to say it's not any longer the winner's justice—not only that. Actually Nuremberg and Tokyo were typical cases of the winner's justice, and there were many shortcomings of these in many other ways remarkable trials.

Now it is not any longer like that. If you take into account our cases, in the case of Pinochet it was not winner's justice. The Spanish judge Garzón did not have any specific interest. Spain didn't have a specific interest in Chile. It was just a problem. Still, Pinochet was not any longer an incumbent and powerful head of state. He had to resign but was still very influential.

ADAM READ-BROWN: It was two states. The other two states in question were the United Kingdom and Spain. The power dynamics there as far as who is bringing him—there is still that element too.

DANIELE ARCHIBUGI: Indeed. Anyhow, if you take this case, it was not a winner's justice. It was perhaps justice against a loser or somebody who will not any longer be as powerful as he used to be in the past. Here it is a basic difference from Nuremberg. It was just something different.

In the case of Slobodan Milošević, I think it was very much a winner's justice. At the time when he was indicted, he had a confrontation with NATO, and only after he was also indicted for the crimes committed in Bosnia, while in 1995 the same tribunal indicated Karadžić and Mladić but not Milošević. So at a certain point, they just called it too late. He could also have been responsible for some of the crimes committed in Bosnia.

That was a typical case of winner's justice. Still, the same tribunal, when it put on the bar Karadžić and Mladić, even if after many years—because they were indicted back in 1995, but they were at large, only much later they were taken successfully to the tribunal—it is a totally different case.

Saddam Hussein again is a typical case, a disgraceful case of winner's justice.

Omar al-Bashir—I don't consider that the International Criminal Court was actually targeting one of its enemies. It was mostly targeting somebody which apparently was not particularly strong in terms of political support. Still, after 10 years from the first indictment, we must recognize that he was much more powerful than expected. Omar al-Bashir is still in power in spite of the indictment.

The situation is more complicated, but the basic ideal to use legal instruments to make accountable the powerful has not yet come into force.

ADAM READ-BROWN: Right. As you mentioned, al-Bashir at the end—now the accusation most often leveled at the ICC is that the selectivity isn't so much about winner's justice but about a sort of general selectivity of the powerful Western nations in Africa pointing the finger at weak states.

DANIELE ARCHIBUGI: Indeed. If I can provide a personal recollection, I was in Rome—I come from Rome, as perhaps you have recognized from my accent—back in 1998 when the treaty of Rome was signed. At the time, there were a lot of African delegations which were interacting with non-governmental organizations (NGOs). Non-governmental organizations were providing advice, were providing suggestions, and so on. Quite a lot of African countries, especially coming out from the apartheid in South Africa, were convinced that the International Criminal Court could be an instrument to protect the African continent from the abuses committed by the white men, by Western powers.

That is the reason why, in a totally unexpected way, so many African countries decided to join the International Criminal Court. After 20 years, of course, the situation has somehow changed. That explains why they are now so critical about the International Criminal Court.

ADAM READ-BROWN: Your assessment of the al-Bashir indictment is that it has been a prolonged humiliation of international criminal justice.

DANIELE ARCHIBUGI: Indeed.

ADAM READ-BROWN: That seems a fairly dismal assessment.

DANIELE ARCHIBUGI: The investigation was poorly done. They didn't collect enough information. Then, of course, if you indict somebody, there should be some political consequences.

In the case of Karadžić and Mladić, the day after they were indicted by the international ad hoc tribunal for the former Yugoslavia, they were politically dead. They had to hide themselves and go at large. That was precisely the successful political aim achieved by the ad hoc tribunal.

In the case of Sudan, this has not happened. Unfortunately, there was not enough political backing of the International Criminal Court.

ADAM READ-BROWN: I want to bring us to a recent development at the ICC, which you do mention in the book, but it's sort of ongoing.

We are seeing this year, in July 2018, that the crime of aggression will be going into effect as a prosecutable crime at the ICC. In the book you talk about how it was included in the Rome Statute but the signatories couldn't agree on a definition, so it languished in limbo for all these years. Finally we got a definition, I believe in 2010 at Kampala. Now we are seeing it go into effect.

How do you view this development? There is certainly a question as to what the impact will be, whether we will see prosecutions on this.

DANIELE ARCHIBUGI: First of all, I think this is very important, because what powerful states should be afraid of is aggression because they have the power to commit aggressions. Specifically, the heads of the governments should be afraid of the existence of the crime of aggression because they can be individually accountable for the crime of aggression.

If it is going to happen, we don't really know. So far, it has happened only in novels and also in films. For example, The Ghost Writer pretends—they made a film out of it—that a British prime minister can be indicted for war crimes. There is now a book, The Trial of Prisoner 043, in which Terry Jastrow pretends that George Bush is taken to justice for the invasion of Iraq.

But novels, of course, are novels. Will we see it in reality? It's not easy.

Take some cases, for example, the intervention carried out in Libya that was, of course, authorized by the Security Council, unfortunately. If it would have not been authorized by the Security Council, heads of state such as Sarkozy could have been indicted by the International Criminal Court. Therefore, at least we are extending a legal instrument, and this is the typical legal instrument which should perhaps make the heads of government think twice about what to do.

ADAM READ-BROWN: Yes. You probably know better than I, but it is, of course, an incremental process here, and even though it has been ratified—I think 35 of the 123 states currently have actually signed on to this amendment. I believe both parties have to be signed on to the amendment to actually be able to bring a case. Of course, it will be a sort of long road to getting more buy-in.

DANIELE ARCHIBUGI: Yes, it is complicated, as you rightly said. But if you are a small state, of course you are happy to sign it. If you are a small state without a serious military capacity, you cannot really make any aggression. Therefore, the states which should be afraid of that are the powerful states.

But still, in spite of everything, it is significant that the United Kingdom and France went into this too. At least two of the old European colonial empires start to have some refrains from the idea that they can use military power without Security Council approval. That, I think, is good news.

ADAM READ-BROWN: Another recent, just-in the-news development is the Philippines announcing that they are going to withdraw from the ICC entirely. Of course, in the book you talk about, and we've already been discussing, how now there has been disillusionment with a number of the African states, and there have been some threats. Here, instead, we have the Philippines, related to opening an investigation related to Duterte's war on drugs and crimes committed in the course of that.

How do you see the impact of something like that with a state? Obviously it has 123 states, so one state perhaps is a drop in the bucket.

DANIELE ARCHIBUGI: Yes, it gives you all the shortcomings of international criminal justice. Each state which would start to be under investigation may say, "I will withdraw." Can you imagine if something similar would happen with national justice? Every time you are indicted for any crime, you say, "I will withdraw." That is ridiculous.

Still, the situation is not that easy. In many cases, it's not just a decision of the head of state but should be a decision taken by government, by parliament, and therefore even to withdraw is not that easy. So you should assume that there is a strongman who has total control of his own country in order to withdraw.

This is already good news, because it means that this additional check and balance can somehow have its own effectiveness.

ADAM READ-BROWN: We are coming toward the end of our time here, and I want to give you an opportunity, if you would like, to end on an optimistic note, a positive note.

What do you see going forward? What should we be hopeful about? For those who are interested in the project of global criminal justice and supporters of it, what are the silver linings here?

DANIELE ARCHIBUGI: First of all, we should understand international criminal justice as one arrow, not as a full monty—one arrow which can be useful, especially if it is used in connection with other instruments.

I think with these other instruments which are available for this purpose, like the commissions for truth and reconciliation, on which the Carnegie Council has also done some work—take the case of Rwanda. The ad hoc tribunal tried not more than 100 people for a genocide which killed 800,000 people. Of course, there is no connection between the number of people that you can take at the bar and the machinery which was used to organize genocide. They also had these Gacaca courts all over the country. I think they were at about 12,000 Gacaca courts, in which, in each village, the victims and the perpetrators had to face each other, with all the problems you can imagine in a country like that. But the combination of truth and reconciliation commissions and international tribunals can be very helpful.

The second is that when the instruments of the legal institutions do not work, civil society should be able to organize opinion tribunals. The book reports what was done with the Bertrand Russell tribunal for war crimes in Vietnam and the more recent tribunal on Iraq. These tribunals often can also have an importance in collecting evidence, collecting the opinions of witnesses, and so on, and transferring this evidence to the International Criminal Court.

This, for example, has happened for the crimes committed in Iraq by British soldiers. Again, I'm not particularly happy about that because I would have much preferred to put on trial somebody for the war crime than somebody for war crimes. But still, in absence of anything else, some NGOs have collected a lot of evidence. They have provided the evidence to the International Criminal Court, and the office of the prosecutor is now forced to investigate if there is enough systematic violation of human rights to open a trial.

That shows that the intergovernmental consensus is not enough. There is an important role that should be played by nongovernmental organizations, by civil society, by individual lawyers, by victims, and so on. The more we are active in presenting the cases, evidence, and activities to the International Criminal Court, the more it is likely that the International Criminal Court will do its job properly.

ADAM READ-BROWN: Thank you very much for those insights. There is much more we, of course, could discuss, but our time is more or less up, and so we will leave it there for now.

For all of your other insights, our listeners will have to read the book Crime and Global Justice: The Dynamics of International Punishment, again co-authored by Daniele Archibugi and Alice Pease and available from Polity Press.

Once again, I'm Adam Read-Brown with the Carnegie Council's Journal of Ethics & International Affairs. If you enjoyed this conversation, please visit us online at www.EIAJournal.org for lots of other great material, including more interviews, access to the latest issue of the journal and much more. We invite you to follow us on Twitter as well, @EIAJournal.

Thanks for listening, and thank you again, Professor Archibugi.

DANIELE ARCHIBUGI: Thank you very much. It's a great pleasure to be here at the Carnegie Council, and I follow your activities weekly.

ADAM READ-BROWN: Glad to hear that and very happy to have you. Thanks for this great discussion.

DANIELE ARCHIBUGI: Thank you.