Monday, November 30, 2009

Unsettling profile of war crimes ambassador

War crimes envoy has personal touch read the headline for Colum Lynch's recent Washington Post profile of Stephen J. Rapp, who, as we've posted, became U.S. Ambassador at Large for War Crimes Issues in September.
Figured the story would talk about how Rapp's experiences as the top prosecutor at the Special Court for Sierra Leone had prepared him for this post. Fair enough.
But then came the subhead:
U.S. ambassador at large knows victimization and is a 'champion' of the brutalized
The story kicked off with a harrowing account of an all-night carjacking/kidnapping that Rapp endured 48 years ago. It then repeatedly linked this personal tragedy to Rapp's avowed self-image as "'a champion'" of the victims of crimes he's prosecuted, 1st in federal courts back home in Iowa, then at the International Criminal Tribunal for Rwanda, and eventually at the Sierra Leone court.
Midway through, the story quoted criticism of the United States' policies on war crimes, levied by Fabienne Hara of the International Crisis Group, who contended

that the United States has not lived up to its commitment to stop violence as it unfolds. Its response to war crimes in three of the most serious conflict zones of the past two years, Congo, Sri Lanka and Gaza, consists of pressing for 'accountability after the crisis rather than stopping or preventing the crisis.'
Yet the reporter seems oblivious to another concern -- a concern apparent in the way that he chose to frame his story.
I've written here and here about what I call an "impartiality deficit" in international and internationalized criminal tribunals. Included within the term is concern that victims and victimization are overemphasized, to the exclusion of other interests at play in a properly balanced criminal justice system. Values of fairness and due process preclude establishment of a criminal court -- or prosecution office -- solely for the purpose of representing victims' interests. Both the court and the prosecutor have the duty to represent the larger society, to serve the interest of public safety even if that interest at times conflicts with those of victims -- as, for instance, proper adherence to defense rights often does.
That's not my own idiosyncratic view. Rather, it embodies tradition recalled in a 1935 U.S. Supreme Court opinion.
In Berger v. United States, Justice George Sutherland, a conservative Republican, wrote this in a unanimous opinion that reversed a conviction on account of misconduct by the federal prosecutor:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Prosecutors who assume a different mantle of responsibility, who construe their their role as the victims' lawyers, as the winners of the case, do so at a risk. 1st, identifying "victims" and "perpetrators" can be a difficult task, as is evident not only in yesterday's Los Angeles Times story about cycles of violence, but also in any consideration of how to deal with former child soldiers. 2d, feeding perceptions that international criminal justice seeks vengeance stokes already overheated claims of "victors' justice." 3d, as many pretrial proceedings at Guantánamo and the trial of Saddam Hussein demonstrated, singular equation of justice with victory does little to reduce the dangers of impartiality deficit.
It's to be hoped that the spin of the Post profile reflects reportorial choice rather than any such singular equation -- that punishment will be but 1 goal of the Office of War Crimes Issues, and that postconflict reconstruction and preconflict prevention will enjoy priorityof place.

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