Tepperman: The Right Way to Prosecute War Crimes

Two cases currently winding their way through U.S. courts show how tortured (pardon the phrase) war crimes prosecutions have become in America today, thanks largely to the Bush administration's own illegal interrogation policies. If we needed another reason not to abuse prisoners, here it is.

The first case concerns the son of Charles Taylor, the brutal strongman who ruled Liberia from 1997 to 2003, during which time he pillaged the country and terrorized its citizens. Taylor himself is currently on trial at a U.N. war-crimes court in The Hague. His son, Charles McArthur Emmanuel, also known as Chuckie Taylor, was convicted last year under a 1994 U.S. law that allows the prosecution of Americans for torture committed overseas. (Emmanuel was born in the United States and is thus a citizen.) He committed a catalogue of horrific acts while head of paramilitary group, the Demon Forces, during Liberia's bloody civil war. Emmanuel will be sentenced shortly in a Miami courtroom, and federal prosecutors have asked that he get 147 years. Emmanuel has already been found guilty of unspeakable crimes, including beatings, electrical shocks, and scalding victims with boiling water.

So what's the problem? Consider the language the Department of Justice used in its brief. Torture, the government argued, is "a flagrant and pernicious abuse of power and authority" that "undermines respect for and trust in authority, government and a rule of law." "The gravity of the offense of torture is beyond dispute."

Few would argue with such sentiments. The trouble is where they come from. This, remember, is the same Justice Department that helped formulate and justify the Bush administration's own abusive interrogation tactics—techniques that Vice President Dick Cheney recently admitted included waterboarding. Lest there be any question whether that's torture, you should know that the U.S. military itself has defined it as such ever since the Philippine war of the early 1900s, and it may well violate U.S. criminal law. This means, in effect, that the U.S. government is now insisting (in the Emmanuel case) that it's right to prosecute thugs from little countries for torture, while ignoring the fact that high U.S. officials ordered similar transgressions and have gone unpunished. This is not an argument for not prosecuting Chuckie Taylor, who is by all accounts a nasty piece of work. Nor does it provide him with a defense: government hypocrisy is not a legal argument. But it does make things a little awkward.

Still, as another case underlines, the Emmanuel prosecution is on balance just, and an example of the right way to go after war criminals. An example of the wrong way concerns Israeli Avi Dichter, who was head of Israel's General Security Service from 2002 to 2005. On July 22, 2002, a bomb attack he authorized to take out Hamas leader Saleh Shehada also killed 14 Palestinian civilians. Dichter, who is currently Israel's minister of public security, is being sued in a New York court by the victims' families, who allege the killings were war crimes. The suit is possible under the U.S. Alien Tort Claims Act, a 1789 law that basically lets anyone sue anyone else in a U.S. court for violations of customary international law—no matter where those violations were committed (unlike the law used against Taylor, no one involved need be an American).

The danger of this case—and indeed, any attempt to prosecute war crimes committed abroad in U.S. courts—is that they inject the American legal system into events that happened far away, and can involve sitting in judgment over the policies and actions of foreign governments. This is a tricky process at the best of times, factually difficult and rife with potential for abuse. Prosecutions could be launched for political purposes, for example—indeed, this is the main reason legal conservatives cite for opposing such cases and transnational legal bodies like the International Criminal Court (ICC). Such prosecutions should therefore only be undertaken cautiously and as a last resort. There are times when they will be appropriate, but a good rule of thumb is that these should be instances where the local legal system is unable or unwilling to deal with the matter itself. That certainly applies to the Taylor case, and other similar trials held in the past (most of which have involved Central American military leaders whose own countries' courts were too fragile to take them on). It also justified Britain's attempt to prosecute Chile's Augusto Pinochet a decade ago.

Israel, however, has a robust and much admired legal system that is fully capable of judging whether what Dichter did was in fact illegal. (And that's by no means clear. Collateral damages have long been accepted in wartime, and regularly occur when U.S. Predator drones take out Qaeda suspects in Afghanistan and Pakistan—with no objection from the U.S. public or the legal community.) The Israeli government regularly convenes commissions of inquiry to consider the propriety of its own military actions, and these have a reputation for probity and have proven unsparing in the past. Israel's prosecutors, moreover, are also not shy about going after top political leaders. In other words, Israel is fully capable of dealing with a case like this on its own. Which raises the question why U.S. courts should be involved. And it's hard to think of a good answer.

So the Second Circuit should throw the case out when it hears the matter on Jan. 16. If it doesn't, it risks undermining America's ability to try more legitimate cases, like Emmanuel's—an ability already strained by the Bush administration's profound hypocrisy on torture and the country's hostility toward bodies like the ICC.