Further Reflections on “The Book of Negroes” Novel

A prior post summarized Lawrence Hill’s novel The Book of Negroes while another post provided a brief look at the relevant historical background of the novel–the fate of the Black British Loyalists in the American colonies during and after the American Revolutionary War.

Lawrence Hill
Lawrence Hill

Now we examine Hill’s own reflections about his novel and how his biography has influenced this novel and his other books. [1]

He first heard about the historical Book of Negroes in 1980 when he read The Black Loyalists: The Search for a Promised Land in Nova Scotia and Sierra Leone, a scholarly book by Canadian historian James W. St. G. Walker.

Hill immediately knew from reading the Walker book that one day he would write the fictional story of a woman who had to have her name entered into the Book of Negroes.  But it took at least 15 years before he felt he was ready to tackle such a large project. In 2002 when he began to research and write the novel, he examined for the first time reproductions of the actual Book of Negroes. Another topic of his research was the activities of the British abolitionists. The size of this project is indicated by the five years it took to research and write the novel.

His greatest surprise from his research was discovering that among the Black Loyalists who left Nova Scotia for Sierra Leone in 1792 were some who had been born in Africa and thus were returning home. This back-to-Africa exodus took place 30 years before American slaves went to Africa to found Liberia and more than a century before Jamaican Marcus Garvey urged blacks in the Diaspora to return to the motherland.

From the moment of his conception of the novel, Hill said, it was a woman’s story. As a writer, he locates stories in the lives of the people who have the most to lose, and Aminata as a mother had the most to lose.

A constant question for him in all of his writing, he said, was how does someone survive horrible events in life. Every book or story requires an overarching theme, which for him is what does the main protagonist want. For Aminata in The Book of Negroes it is “I want to go home to Africa.”

Lawrence Hill’s parents — a black father and a white mother —were U.S. citizens who emigrated  to Canada the day after they married in 1953 in Washington, D.C.in order to escape racial discrimination and anti-miscegenation laws. Both of them were involved in the human rights movement, an influence Hill readily acknowledges.

Born in Canada in 1957, Hill was raised in a predominantly white Toronto suburb. He has a B.A. in economics from Laval University in Quebec City and an M.S. in writing from Johns Hopkins University in Baltimore.

Although Hill always wanted to be a creative writer, he immediately recognized that he needed to have some kind of gainful employment to support himself financially as he was starting his writing career. These sidelines, he acknowledges, helped his creative writing.

He spent three years as a journalist with Toronto’s The Globe and Mail and The Winnipeg Free Press and learned how to write quickly on short deadlines and to recognize that his words could be changed by editors. He then spent a year in Spain writing short stories, but realized that his quickly written letters from Spain to friends were more lively and better written. For the next 15 years he was a free-lance speech writer for Canadian politicians and in the process learned how to write for different voices.

Hill’s international travels have also influenced his writing, especially his volunteer trips to West Africa. While in Mali, for example, he met a midwife by the name of “Aminata,” which he used as the name of the main character in The Book of Negroes.

Now Hill is an accomplished and recognized author. In addition to The Book of Negroes, he has published two other novels, a memoir, three other non-fiction books and the script for a film.

He is a member of the Council of Patrons of the Black Loyalist Heritage Society. Hill has received the Diamond Jubilee Medal from Queen Elizabeth II, the Medal of Distinction from Huron University College, the Freedom To Read Award from the Writers Union of Canada, the Award of Excellence from the Canadian Civil Liberties Association, and the Rev. John C. Holland Award of Merit from the Hamilton Black History Committee. Hill also holds honorary doctorates from the University of Toronto, Wilfrid Laurier University and the University of Waterloo.

This coming fall Hill will be Canada’s Massey Lecturer and has said the lecture’s theme will be “how beliefs, traditions, rituals, phobias, and obsessions about blood influence how we see ourselves individually and societally.”

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[1] This post is based primarily upon materials on Hill’s own website and his recent remarks at the San Miguel Writers’ Conference.

The Black British Loyalists Through the Eyes of Novelist Lawrence Hill

Lawrence Hill
Lawrence Hill

As mentioned in a prior post, the amazing saga of the Black Loyalists in the American Revolutionary War is not widely known. Helping to make it better known is the novel, The Book of Negroes, by Canadian novelist, Lawrence Hill.

the-book-of-negroes1

The novel takes the form of a memoir written in the early 19th century by a West African woman, Aminata Diallo.

She starts with her mid-18th century abduction as an 11-year-old girl from her West African village and being forced to walk for months to the coast of the Atlantic Ocean. There she is put on a slave ship that takes her to South Carolina, where she begins a new life as a slave.

Aminata is intelligent and as a slave learns midwifery skills and how to read and write. Nevertheless, her life as a slave is not easy.

Book of Negroes (page)
Book of Negroes (page)

Her story begins to intersect with that of the Black Loyalists near the end of the American Revolutionary War when she goes to New York City. Because she is literate, she is hired by the British to prepare the Book of Negroes, which provides identifying information for Black Loyalists to be evacuated from the City to go to Nova Scotia for a new and promised better life as free people. In Hill’s words, it was like a group passport or visa. Aminata is one of those so evacuated.

Life in Nova Scotia, however, is not as easy or as great as the British had promised, as demonstrated in the historical record and in the novel, for Aminata and the other Black Loyalists.

Eventually some of the Black Loyalists leave Nova Scotia to go to Sierra Leone in western Africa, as documented in the historical record. In the novel, Aminata is one of those Black Loyalists returning to Africa.

Aminata’s fictional life, however, also includes a trip to London, where she is used in the early 19th century by the British abolitionists to support their arguments for ending the slave trade. To her consternation, abolition of slavery itself is not part of the abolitionists’ agenda.

Guides for the novel for teachers and readers are available on Hill’s website.The novel is now being made into a TV series.

The novel won the overall Commonwealth Writers’ Prize for Best Book, the Rogers Writers’ Trust Fiction Prize, the Ontario Library Association’s Evergreen Award and CBC Radio’s Canada Reads. The book was a finalist for the Hurston/Wright LEGACY Award and long-listed for both the Giller Prize and the IMPAC Award.

When my best friend from college who lives in Toronto gave me a copy of this novel several years ago, I had never heard of it and was startled by the title, “The Book of Negroes.” Was this some racist tract? I wondered, but my friend quickly disabused me of that notion.

I found it hard to believe that any male writer, much less an assumed white man, could write so beautifully and convincingly in the first person of an African woman. It was only much later that I discovered that Hill is biracial and that his personal history coupled with his writing skills clearly helped him to write this wonderful book.

A subsequent post will explore Hill’s comments about the novel and his biography.

 

 

 

The Fate of Black British Loyalists in the American Revolutionary War

At the start of the American Revolutionary War in April 1775, the population of the American colonies was approximately 1.5 million. Of these at least 300,000 were black slaves, mainly in the south. [1]

Lord Dunmore
Lord Dunmore

On November 14, 1775, John Murray, Earl of Dunmore and Royal Governor of the Colony of Virginia, issued a proclamation offering freedom to slaves who would leave their masters and join the British side. That proclamation declared, in part, “all indentured Servants, Negroes, or others, (appertaining to Rebels,) free that are able and willing to bear Arms, they joining His MAJESTY’S Troops as soon as may be.” [2]

Sir Henry Clinton
Sir Henry Clinton

By 1776 the Dunmore Proclamation became general British policy throughout the colonies, and in 1779 Sir Henry Clinton, who was a top British General, issued the Philipsburg Proclamation expanding Dunmore’s Proclamation to include any rebel slave who could escape, ready to serve for the British or not, anywhere in the colonies.

Although only an estimated 800 slaves immediately joined the British in Virginia as a result of the Dunmore Proclamation, eventually as many as 30,000 slaves throughout the colonies did so and worked as soldiers, laborers, pilots, cooks, and musicians for the British.

General Charles Cornwallis
General Charles Cornwallis

In the final battle of the War, the Battle of Yorktown, in October 1781, the British were defeated, and British General Cornwallis surrendered and thereby abandoned hundreds of black soldiers to the Americans for a return to slavery.

By the winter of the next year (1782), it had  become clear that the British would soon have to evacuate the American colonies. At the time thousands of Loyalists were in the British-held strongholds of New York, Charleston, and Savannah. All Loyalists knew that staying in the new country invited retaliation against them by the victorious Americans, and as a result many left the colonies.

The Black Loyalists were at the even greater risk of being returned to slavery and subjected to cruel punishment for having escaped. Indeed, the terms of the Treaty of Paris ending the War required the British to return the former slaves to their owners.

When those treaty terms became widely known in the colonies, many white slave-owners and their agents from the southern states went to New York City to kidnap and seize their former slaves in anticipation of the signing of the treaty. In addition, the British abandoned some of the Black Loyalists to the Americans or sold them in the West Indies or traded them for White Loyalist prisoners.

When the War formally ended with the signing of the Treaty of Paris on September 3, 1783, the British were nearing the end of their seven-year occupation of New York City (then only the southern end of Manhattan). Thereafter, over the next three months, the British evacuated more than 29,000 military personnel, Loyalists and liberated slaves from the City although the Treaty of Paris required the British to return the slaves to their owners.

Among those evacuees were 3,000 former black slaves or Black Loyalists who were listed in “The Book of Negroes.” [3]

Nova Scotia
Nova Scotia

The Black Loyalists on the List of Negroes were taken to British-controlled Nova Scotia where they formed the first free settlements of free Africans outside Africa.  Despite British promises of freedom and land, they soon were subjected to racial discrimination and even slavery and to very difficult conditions.

By the 1790’s the Black Loyalists had given up hope of fair treatment in Nova Scotia. They were ready to leave for a new promised land, and soon their opportunity arrived in the form of the Sierra Leone Company, eager to recruit Black Christians for their new colony on the west coast of Africa. Many of the Black Loyalists decided that an uncertain future in Africa was better than certain misery in Nova Scotia.

In January 1792,15 ships with over 1,100 Black Loyalists left Nova Scotia. When they arrived in what is now Sierra Leone in March of that year, they met conditions that were not better than what they had left.

Today the descendants of the Black Loyalists from Nova Scotia are an important ethnic group in Sierra Leone and still meet and dominate certain churches.

Conclusion

As a white U.S. citizen in 2013, I confess that I did not know any of this history until I had read the Lawrence Hill novel about The Book of Negroes and did research for this and the earlier post referencing the novel.

For the African slaves in the colonies in 1775, the Dunmore Proclamation must have seemed like the once-in-a-lifetime opportunity to escape the horrors of slavery. Yet it required great courage for anyone in those circumstances to attempt to, and actually, escape slavery in the hope that they would be free people. I give thanks for their courage and for their descendants’ creation of a Canadian society to honor their ancestors’ courage and history.

At the same time, once must also acknowledge that the estimated 30,000 Black Loyalists were only roughly 10% of the black slaves in the colonies at the time. The other 270,000 black slaves did not have the courage to try to escape or for whatever reasons had decided to cast their lot with the rebelling colonists. Some even fought for the colonists in the War. It would be interesting to know more about them.

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1 This post is based upon secondary sources, primarily upon the superb “Black Loyalists: Our History, Our People.” I encourage comments correcting any errors in this post or amplifying on the history of the Black Loyalists.

2 In response the next month (December 1775) the Virginia legislature passed a law that prescribed death for “all negro or other slaves, conspiring to rebel or make insurrection” against their owners while offering pardon to those who ”return in safety to their duty.”

3 “The Book of Negroes”  was mentioned in a prior post along with the novel of the same name by Canadian novelist Lawrence Hill. A subsequent post will discuss recent comments about the novel by Hill along with some of his biographical information.

Reactions to Charles Taylor’s Conviction

Special Court for Sierra Leone Logo

As reported in a prior post, on April 26th the Special Court for Sierra Leone convicted Charles Taylor, the former President of neighboring Liberia of 11 counts of crimes against humanity and war crimes. The hearing on his sentencing has been scheduled for May 16th with the sentence to be pronounced on May 30th. The deadline for any appeal is 14 days after the sentencing judgment.

Before we look at the reactions to that conviction, we should be aware of the gruesome details of what happened in Sierra Leone according to witnesses at Taylor’s trial. Here are only two examples. One male witness, “Then I put this other hand. Then he [a Sierra Leone rebel] chopped it, but when he chopped it it was not severed initially. He chopped it twice, and it hit here and some bones were broken in it. Then the third time it was severed.” Another male witness, “Well, they [the rebels] used to treat them [civilians] badly. They used to rape them. They used to kill them. Sometimes they even ate them.” A video with photos of some of the Sierra Leone victims should be watched as well as current photos from the country.

Another aspect of the trial needs highlighting. One of the challenges facing the prosecution was how to link Mr. Taylor in Liberia to the crimes committed in Sierra Leone. There was no paper trail showing orders from Taylor. Nor was there any evidence of his ever going to Sierra Leone. He was not at the scene of the crimes in that country, and the Liberian army was not involved. Instead the link was proven by radio and telephone communications from Taylor to the rebels in Sierra Leone, by shipments of arms and ammunition to the rebels from Taylor’s forces and by bank records showing transfers of funds to Taylor’s accounts from Sierra Leone.

The Special Court’s chief prosecutor, Brenda J. Hollis, who is a U.S. lawyer, said the conviction was a triumph for the idea that political leaders should be held accountable  for their deeds in “the new reality of an international justice system.”

The U.N. High Commissioner for Human Rights stated that the conviction “marked a major milestone in the development of international justice. . . .  A former President, who once wielded immense influence in a neighbouring [sic] country where tens of thousands of people were killed, mutilated, raped, robbed and repeatedly displaced for years on end, has been arrested, tried in a fair and thorough international procedure, and has now been convicted of very serious crimes.” Such a result, she said, was “a stark warning to other Heads of State who are committing similar crimes, or contemplating doing so.”

The U.S. Department of State issued an official statement welcoming the conviction as “an important step toward delivering justice and accountability for victims, restoring peace and stability in the country and the region, and completing the Special Court for Sierra Leone’s mandate to prosecute those persons who bear the greatest responsibility for the atrocities committed in Sierra LeoneThe Taylor prosecution at the Special Court delivers a strong message to all perpetrators of atrocities, including those in the highest positions of power, that they will be held accountable.” The U.S. statement also noted that the U.S. “has been a strong supporter and the leading donor of the Special Court  . . . since its inception. The successful completion of the Special Court’s work remains a top U.S. Government priority.”

Amnesty International (AI) asserted that the conviction sends “a clear message to leaders the world over that no-one is immune from justice.”  However, AI lamented that because of the limited jurisdiction and funding of the Special Court, “Thousands of persons suspected of criminal responsibility for incidences of unlawful killings, rape and sexual violence, mutilations and the use of children in Sierra Leone’s armed conflict have never been investigated, much less prosecuted.” In addition, AI emphasized that “only a limited number of Sierra Leone’s thousands of victims who bear the terrible scars of the conflict have received reparations, despite the [provisions for reparations in the Sierra Leone] Peace Accord and the clear recommendations [for reparations] by [Sierra Leone’s] Truth and Reconciliation Commission.” AI also reiterated its call for the repeal of the amnesty provision in the Peace Accord and [for Sierra Leone’s] enactment of legislation defining crimes against humanity and war crimes as crimes under Sierra Leone law.”

Human Rights Watch had a similar reaction. It said the conviction “sends a message to those in power that they can be held to account for grave crimes.”

A New York Times editorial said the conviction “is a historic victory for justice and accountability: the first time a former head of state has been convicted by an international court since the Nuremberg trials after World War II. Mr. Taylor . . . richly deserves this distinction.” The editorial also reminded us that “other leaders . . .  deserve the same fate” from the International Criminal Court in its prosecutions of the Ivory Coast’s brutal former president, Laurent Gbagbo, and Sudan’s current president, Omar Hassan al-Bashir.

The Guardian newspaper from London commented that the conviction was “an important step in what can only be described as the faltering path of international justice.” It noted that even though there were dysfunctional justice systems in Russia and China, it is “a safe bet that no Russian [or Chinese] leader will ever appear before an international court of justice for war crimes . . . . The same is true of . . . US or British generals for war crimes committed in Iraq and Afghanistan. Might, or a seat on the UN security council, still appears to be right. If the arm of international law is long, it is also selective. . . .  If impunity is to end, jurisdiction has to be universal.”

Taylor’s conviction was for crimes against humanity and war crimes in Sierra Leone. But the conviction reminded Liberians of the horrible similar crimes committed in their country by Taylor and his forces.

Charles Taylor (Rebel leader)
Charles Taylor, President of Liberia

An expert on Liberia stated that in “Liberia, Mr. Taylor fought a brutal campaign against West African peacekeepers and other armed factions. As many as 250,000 Liberians out of a prewar population of just over [3,000,000] lost their lives, while more than [1,000,000] others became refugees — crimes for which no one has yet been held accountable. An internationally brokered peace deal in 1997 led to the travesty of a frightened population’s electing Mr. Taylor president for fear of what would happen if he did not get his way. He was driven from power only in 2003.” Moreover, “many of his closest former associates remain at large and active in public life . . . . Mr. Taylor’s ex-wife, Jewel Howard Taylor, who filed for divorce after his fall from power in part to protect her assets from international sanctions, is a member of the Liberian Senate. So is Prince Y. Johnson, a onetime Taylor ally who literally butchered President Samuel K. Doe at the start of the civil war and was so certain of his impunity that he had the entire episode videotaped for posterity. Far from becoming a pariah, Mr. Johnson played kingmaker in Liberia’s presidential election last year, delivering the bloc of votes that assured President Ellen Johnson Sirleaf a second term.”

The previously mentioned New York Times editorial said that Taylor now “must also be held accountable for his role in Liberia’s 14-year civil war. Liberia needs to enact the legislation to bring him, and the other murderous warlords from that era, to trial either in Liberian or international courts.”

Amnesty International and Human Rights Watch also remembered that Taylor and his forces had committed grave crimes in his native Liberia, but had not been subject to any criminal prosecutions for those crimes. Said AI, “during “the 14-year Liberian civil war that raged while Taylor was first the leader of one of the numerous armed opposition groups and later the President, all parties to the conflict committed war crimes and crimes against humanity, including murders along ethnic lines, as well as torture, rapes and other crimes of sexual violence, abductions, and recruitment and use child soldiers.” After the end of the civil war, AI said the Liberian Truth and Reconciliation commission had recommended “that a criminal tribunal be established to prosecute people identified as responsible for crimes under international law [but that it] is yet to be implemented, as are most TRC recommendations on legal and other institutional reforms, accountability, and reparations.  The lack of justice for the victims of the Liberian conflict is shocking. The government of Liberia must end the reign of impunity by enacting the necessary legislation and acting on its duty to investigate and prosecute alleged perpetrators.”

Finally, two African observers commented that justice having “had to come from international courts does not reflect well on . . .  Liberia in particular. The process exposes the failure by Liberians to provide themselves with a legal and judiciary system capable of effectively administering justice.” More generally “the verdict and the process should be a wakeup call to Africans. The successful conviction for such crimes is a glaring example of the failure of Africans to govern themselves effectively. . . . Africans must focus on building strong institutions to deal with human rights violations ourselves . . . .” On the other hand, the conviction “informs future Liberian, and indeed African, dictators and tyrants that they cannot escape justice by hedging their bets on a dysfunctional domestic legal system. Where national systems are incapable of adequately and effectively prosecuting leaders who engage in wanton violations of human rights, citizens can look to the international criminal court for justice.”

Former Liberian President Convicted of Crimes Against Humanity and War Crimes

Special Court for Sierra Leone Logo
Charles Taylor

On April 26, 2012, the Special Court for Sierra Leone convicted Charles Taylor, the former President of neighboring Liberia, of 11 counts of crimes against humanity and war crimes as defined in the Court’s governing Statute.

The Court’s judgment was based upon detailed findings that the prosecution had proved beyond a reasonable doubt that:

  • Sierra Leone rebels had committed crimes against humanity in Sierra Leone by murder (Count 2), rape (Count 4), sexual slavery (Count 5), other inhumane acts (Count 8) and enslavement (Count 10).
  • Said rebels had committed violations of Common Article 3 to the Geneva Conventions and of their Additional Protocol II in Sierra Leone by acts of terrorism (Count 1), violence to life, health and physical or mental well-being of persons, in particular murder (Count 3); outrages upon personal dignity (Count 6); violence to life, health and physical or mental well-being of persons, in particular cruel treatment (Count 7); and pillage (Count 11).
  • Said rebels had committed violations of international humanitarian law in Sierra Leone by conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities (Count 9).
  • Mr. Taylor had provided practical assistance, encouragement and moral support that had a substantial effect on the commission of said crimes by the rebels, and he knew that such crimes were being committed and that his actions would provide said practical assistance, encouragement or moral support to the commission of such crimes. Therefore, Mr. Taylor was guilty of the crime of aiding and abetting the commission of such crimes.

The Court, however, determined that the prosecution had failed to prove beyond a reasonable doubt that Mr. Taylor had participated in a common plan, design or purpose to commit the rebels’ crimes.

Mr. Taylor will be sentenced in the coming weeks. There is no death penalty in international criminal law, and any prison term would be served in a British prison pursuant to a special agreement with the Court.

The Court was established in 2002 in a partnership between the United Nations and Sierra Leone to prosecute those responsible for atrocities in a conflict that led almost half the population to flee and left an estimated 50,000 dead. With its main seat in Sierra Leone’s capital of Freetown, the Court already has sentenced eight other leading members from different forces and rebel groups for crimes in Sierra Leone. Mr. Taylor is its last defendant whose trial was moved to The Hague in the Netherlands for fear of causing unrest in the region where he still has followers.

Not since Karl Doenitz, the German admiral who briefly succeeded Hitler upon his death, was tried and sentenced by the International Military Tribunal has a head of state been convicted by an international court.

 

Are International Criminal Tribunals Successful?

Michael Ignatieff, a former Harvard professor and expert on international human rights and a former leader of Canada’s Liberal Party, in a recent issue of The New York Review of Books expressed a gloomy view of the post-World War II development of international criminal tribunals.

The actions of the U.S. and other great powers have contributed to his negativity. He says, “America is exceptional in combining standard great-power realism with extravagant idealism about the country’s redemptive role in creating international order. . . . [The] US has promoted universal legal norms and the institutions to enforce them, while seeking by hook or by crook to exempt American citizens, especially soldiers, from their actual application. From Nuremberg onward, no country has invested more in the development of international jurisdiction for atrocity crimes and no country has worked harder to make sure that the law it seeks for others does not apply to itself.”

This negative assessment is buttressed by the new memoir by David Scheffer (All the Missing Souls: A Personal History of the War Crimes Tribunals). Scheffer, who was one of the leading U.S. diplomats involved in the negotiations that created these tribunals, recounts the U.S. resistance to (i) providing U.S. intelligence information to the ICTY; (ii) seeking to arrest the most egregious defendants for the ICTY; and (III) having U.S. citizens, especially soldiers, being subject to the jurisdiction of the International Criminal Court (ICC).  A review of this book is the nominal subject of this essay by Ignatieff.

Scheffer’s post-mortem on his frustrations as the lead U.S. diplomat at the Rome Conference that produced the Rome Statute for the ICC is especially instructive on why the U.S. voted against that treaty at the conclusion of the conference and more generally on the U.S. process for negotiating and ratifying multilateral treaties.

According to Scheffer, there were four main reasons for the inability of the U.S. to advance its positions at the Rome Conference and its eventual vote against the treaty at the conference’s conclusion. U.S. military officials failed to know and understand other nations’ perspectives on the ICC and to explain to other nations the role of the U.S. military after the end of the Cold War. Nevertheless the U.S. military’s opposition to the ICC dictated the terms of the unsuccessful U.S. negotiating positions at the conference. In addition, the U.S. government was unable to make timely policy decisions on key issues being negotiated for the treaty. Thirdly, there are always distractions and other matters clamoring for the attention of the President and his top advisors; for President Clinton and the Rome Conference it was the Monica Lewinsky scandal. Finally, Republican Senators Jesse Helms of North Carolina and Rod Grams of Minnesota, who were vehemently opposed to the idea of an ICC, attended the Rome Conference to make their views known to other governments.

Scheffer also provides important background information on two developments after the Rome Conference that remind us that there are important issues for a treaty like the Rome Statute after its terms have been adopted. First, he successfully pressed for significant U.S. participation in the drafting of the ICC’s Rules of Procedure and Evidence and the Elements of Crimes that helped to alleviate some of the U.S. concerns regarding due process at the new court. Second, Scheffer also was successful in lobbying for the U.S.’ signing the Rome Statute before the end of 2000 (the last possible date for a state’s signing the treaty), which he did on behalf of the U.S. at the U.N. headquarters in New York City on December 31st (a very wintery Sunday New Year’s Eve Day). He, however, was not pleased with some of the details of President Clinton’s signing statement that said the treaty had “significant flaws” and that he would not be submitting the treaty to the Senate for advice and consent. The latter point, says Scheffer, was unnecessary since the Clinton presidency was almost over and since it usually takes years to prepare a treaty for submission to the Senate.

Ignatieff’s negative assessment of the U.S. split personality on this subject is also supported by the fact that the U.S. has been actively involved in the post-1945 negotiation of treaties that establish or codify international human rights norms, but has not ratified 16 such treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court. Moreover, the U.S. has subjected its ratification of 10 of 16 such treaties to reservations, declarations and understandings that attempt to limit the application of such treaties to the U.S. (David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 136-66 (3d ed. 2001).)

We have seen this phenomenon in a prior post‘s examination of the U.S. ratification of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and by another post’s noting that Protocol II to the Geneva Conventions has been languishing in the U.S. Senate for 25 years with no action on presidential requests for advice and consent to U.S. ratification of that treaty. Other posts examined the policies toward the ICC in the Clinton, George W. Bush and Obama Administrations.

According to Ignatieff, the development of mechanisms of international criminal justice “was supposed to rescue the possibility of universal justice from the revenge frenzies, political compromises, and local partialities of national justice.”  This has not been the case, however, in his opinion, because “international justice turns out to be as much the prisoner of international politics as national justice is of national politics. Indeed, given the stakes, international justice may be more partial, that is, more politicized, than national justice.”

Therefore, he wonders if the creation of the international criminal tribunals—Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC —has been worth the effort and costs. From 1993 through 2009, he says, these tribunals collectively cost their donors $3.43 billion, but only 131 convictions were obtained.

In the next breath, however, Ignatieff seems to say that the tribunals have been worth all the trouble. He says that no one now is dying from atrocity crimes in Bosnia, or in Cambodia, Sierra Leone, or Rwanda, which have had special international criminal tribunals.  “Justice—imperfect, partial, expensive—has been done and even been seen to be done. In these places, murderous rages have subsided. Some have reconciled. States have achieved stability. People are moving on. One of the reasons for this may be that in some cases justice was done.”

Although I share Ignatieff’s view of the imperfections of the mechanisms of international criminal justice and of U.S. (and other great powers’) resistance to application of such institutions or norms to themselves, I do not agree with his more pessimistic assessment of the development of international criminal tribunals.

First, he pulls the number of convictions at 131 from a table of results (as of December 31, 2010) in the Scheffer book without mentioning or considering these tribunals’ other results according to that table . Nor does Ignatieff attempt to update the table.

Let me first update that table and then discuss the overall results of these tribunals. My examination on April 1, 2012, of the websites for these tribunals revealed the following results with respect to individuals who have been charged with crimes by said tribunals:

Tribunal Pre-Trail Trial Convicted (includes pending appeals) Withdrawn/Dismissed/Acquitted/

Deceased

Referred to Nat’l Court At Large TOTAL
ICTY 2 16   81 49 13   0 161
ICTR 1   3   62 14   3   9   92
Special Ct.-Sierra Leone 0   1     8   2   0   1   12
Extra Chambers Cambodia 5   4     1   0   0   0   10
ICC 7   3     1   6   0 11   28
TOTAL 15 27 153 71 16 21 303

According to this table, Ignatieff understates the convictions by 22, but more importantly he ignores the 16 who have been referred to national courts, the 42 who are still in pre-trial or trial proceedings and the 21 who are still fugitives. Thus, there eventually may be additional convictions for the crimes that have been charged. Moreover, these courts are not machines to produce convictions; they are intended to provide due process guarantees to those charged with crimes, and the 71 individuals who have had charges withdrawn or dismissed or who have been acquitted or who have died before their trials could be completed suggest that these courts have been operating fairly.

Second, Ignatieff ignores the fact that the existence and operation of these tribunals have given incentives and programs to various countries to improve their judicial systems so that eventually they can try individuals for the crimes within the jurisdiction of these international courts. Indeed, 16 of the individuals who have been charged with crimes by these tribunals have had their cases transferred to national court systems. As previously noted, the ICC’s Rome Statute has provisions incorporating the principle of complementarity whereby the ICC defers to national prosecutions by competent national judicial systems.

Third, Ignatieff also ignores the fact that these tribunals have been important in developing a more elaborate international law regarding genocide, crimes against humanity and war crimes, and their precedents can be and are being used by other courts and agencies involved in cases or other proceedings regarding international human rights.

Fourth, Ignatieff fails to acknowledge that these tribunals are only one part of a complex, interactive global struggle against impunity for the worst crimes of concern to the international community. Various posts already have discussed many of these pieces to the puzzle, and a prior post summarized this interactive network

Finally, in my opinion, these tribunals have been successful for the foregoing reasons. The peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further developments, I am confident, will occur.

International Criminal Justice: Other International Criminal Tribunals

We already have seen that the imposition of criminal sanctions (imprisonment) is one way that we the People of the world seek to enforce international human rights norms.[1]

We also have explored some of the institutions that do this. The International Criminal Court is a permanent body that was created by a separate treaty (the Rome Statute for the ICC) and that encourages and gives precedence to national criminal prosecutions under the principle of complementarity.[2] The U.N. Security Council has created two ad hoc and limited-life courts: the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY).[3]

There also are at least four other special institutions that are authorized to impose such criminal sanctions. They are sometimes called “hybrid tribunals” because they have judges from the concerned country plus international judges.

1. East Timor Serious Crimes Panel

In 1998 the residents of East Timor voted for independence from Indonesia. In response pro-Indonesian militias launched a brutal campaign of property destruction and human rights abuses. Soon thereafter a U.N. military force entered the territory and restored order, and the U.N. set up the U.N. Transitional Administration in East Timor.[4]

 

East Timor Serious Crimes Panel

In 2000 this Administration established a court system that included a Serious Crime Panel, which had jurisdiction over war crimes; crimes against humanity; murder; sexual offenses; and torture. The initial Panel had two international judges and one East Timorese judge. It was located in East Timor. [5]

By the end of May 2005 the Special Panel had completed more than 55 trials. Most involved relatively low-level defendants; 84 were convicted and 3 acquitted. The work of the Special Panel was cut short by a U.N. decision to end its missions to Timor-Leste.[6]

 

 

 

2. The Special Court for Sierra Leone

 

 

The Special Court for Sierra Leone was established pursuant to an agreement, dated January 16, 2002, between the Government of that country and the United Nations and the annexed Statute for the Special Court. It has 10 judges; five appointed by the U.N. and five by the Government of Sierra Leone.[7]

The Special Court has jurisdiction over “persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” The Court’s Statute specifies the following crimes as within its jurisdiction: crimes against humanity; violations of common Article 3 of the Geneva Conventions; certain other serious violations of international humanitarian law; and certain crimes under Sierra Leonean law.[8]

 

Sierra Leone Special Court

The Special Court, sitting in Freetown, Sierra Leone, has completed trials and appeals of (a) three former leaders of the Armed Forces Revolutionary Council (AFRC); (b) two members of the Civil Defense Forces (CDF); and (c) three former leaders of the Revolutionary United Front (RUF). Two other individuals who were indicted by the Special Court have died, and their indictments, therefore, were dismissed. Another indictee is at large, and the status of one of the 13 indictees is unknown.[9]

The last of the Special Court’s cases is against former Liberian President Charles Taylor. He was indicted in March 2003 on 17 counts, including war crimes, crimes against humanity, sexual slavery and mutilation. In May 2004, before Taylor was in custody, the Special Court rejected his motion to dismiss the charges on the ground of head-of-state immunity; the court said that it was an international tribunal from which there was no immunity. [10]

In August 2003 Taylor resigned as President of Liberia and went into exile in Nigeria where he remained until March 2006 when Nigeria transferred him to Liberia. In Liberia U.N. military forces arrested him and took him to the Special Court in Freetown, Sierra Leone to stand trial. Soon thereafter because of security concerns the Special Court asked the Netherlands to accept his transfer to The Hague for trial by the Special Court; the Netherlands agreed to do so after the U.K. agreed to provide a prison for Taylor if he were convicted.[11]

The Taylor trial started in June 2007; the defense phase of the case ended in November 2010; and closing arguments were held in March 2011. The decision of the Special Court is pending.[12]

3. Extraordinary Chambers in the Courts of Cambodia

 

ECCC logo

In 2001 the Cambodian National Assembly passed a law to create the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (Extraordinary Chambers or ECCC). This is a court to try serious crimes committed during the Khmer Rouge regime 1975-1979. In June 2003 Cambodia and the U.N. reached an agreement detailing how the U.N. will assist and participate in the Extraordinary Chambers.[13]

The ECCC has 12 judges; seven are selected by Cambodia; the other five, by the U.N. The ECCC has jurisdiction over (a) “the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide;” (b) “crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court;” (c) “grave breaches of the 1949 Geneva Conventions;”and (d) such other crimes as defined in Chapter II of the Cambodian Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001.”[14]  The last category includes homicide, torture, religious persecution, destruction of cultural property during armed conflict and crimes against internationally protected persons.[15]

The ECCC has only four cases on its docket.[16]

The first case was against Kaing Guek Eav (alias Duch), the former Chairman of the Khmer Rouge Security Center in Phnom Penh. After eight months of trial, the Trial Chamber in July 2010 found him guilty of two charges. First was crimes against humanity (persecution on political grounds) (subsuming the crimes against human extermination [encompassing murder], enslavement, imprisonment, torture [including one instance of rape], and other inhumane acts). Second was grave breaches of the Geneva Conventions of 1949, namely: – willful killing, – torture and inhumane treatment, – willfully causing great suffering or serious injury to body or health,                 – willfully depriving a prisoner of war or civilian of the rights of fair and regular trial, and -unlawful confinement of a civilian.[17]

The Trial Chamber sentenced Duch to 30 years of imprisonment (after reducing the initial sentence of 35 years). The judgment has been appealed to the Supreme Court of the ECCC.

The second case before the ECCC is against four defendants on charges of crimes against humanity; grave breaches of the Geneva Conventions of 1949; genocide; homicide; torture; and religious persecution. The trial commenced in late June 2011. Almost immediately one of the defendants left the courtroom and is participating by video.[18]

In September 2009, the Prosecutors requested the investigating judges to initiate an investigation of five additional suspected persons. This request was divided into what is known as Case files 003 and 004.

  • In April 2011 Case 003 the investigating judges rejected the request; an appeal has been filed from this denial.
  • Case 004, however, is still open. In August 2011 the investigating judges issued an unusual press release saying that they had not notified the public of the crime sites in this case because there were “serious doubts whether the suspects are ‘most responsible’ according to the jurisdictional requirement” and that If the Court had no jurisdiction, it would be inappropriate to identify these sites. However, since there was an increasing amount of speculative and wrong information being published, the investigating judges identified 30 sites in different regions of the country that were involved in this case.[19]

The Cambodian government has opposed the opening of cases 3 and 4, and the ECCC’s rejection of Case 3 and anticipated rejection of Case 4 have generated a lot of controversy.[20]

4.  Special Tribunal for Lebanon

 

In December 2005, the Government of the Republic of Lebanon requested the U.N. to establish a tribunal of an international character to try all those allegedly responsible for the February 2005 attack in Beirut resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. Pursuant to Security Council resolution 1664 (2006), the U.N. and the Lebanese Republic negotiated an agreement on the establishment of the Special Tribunal for Lebanon. Pursuant to that agreement, another Security Council resolution (No. 1757(2007)) and the Statute of the Special Tribunal, the Special Tribunal entered into force in June 2007.[21]

For considerations of justice and fairness, as well as security and administrative efficiency, the seat of the Special Tribunal is located at The Hague (Netherlands).[22]

The mandate of the Special Tribunal for Lebanon is to prosecute persons responsible for the attack of 14 February 2005 attack resulting in the death of former Prime Minister Rafiq Hariri and in the death or injury of other persons. The Tribunal’s jurisdiction could be extended beyond that attack if the Tribunal finds that other attacks in Lebanon between October 2004 and December 12, 2005, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005.[23]

The Special Tribunal has 9 judges all appointed by the U.N. Secretary-General; three are Lebanese; the other six are from other countries. They are divided into Pre-Trial, Trial and Appeals Chambers.[24]

On June 30, 2011, the Special Tribunal indicted four men, all members of Hezbollah, for the assassination of Hariri. Hezbollah has contended that the Tribunal is a sham and manipulated by the U.S. and Israel. Now the challenge is to serve the warrants and arrest the four defendants.[25]

On August 19, 2011, the Tribunal announced that it would investigate three other attacks that, it said, were related to the attack that killed Hariri. They were an unsuccessful assassination attempt on a former Lebanese telecom minister (Hamadeh) in 2004; the attack and wounding of a former deputy prime minister and defense minister (al-Murr) in 2005; and the killing of a former Communist Party chief and critic of Syria (Hawi) in 2005.[26]

Conclusion

These four special tribunals along with the ICTR and ICTY demonstrate that the U.N. has reacted creatively to situations where nation states need assistance in holding accountable perpetrators of the worst crimes of concern to the international community.

In three instances (East Timor, Sierra Leone and Cambodia) the special tribunals were placed in the country where the crimes occurred, and their proceedings were conducted in the languages of those countries. This helps to bring immediacy to the trials for the affected communities.

When security is a problem for such trials in the affected countries (Rwanda, the former Yugoslavia and Lebanon), on the other hand, the tribunals have been placed in a respected international center for such institutions (The Hague). The same was true for a specific trial (Charles Taylor) by the Special Court for Sierra Leone.


[1] Post: International Criminal Justice: Introduction (April 26, 2011).

[2] Post: International Criminal Court: Introduction (April 28, 2011). Other posts relating to the ICC may be found by going to the “tag cloud” in the upper right portion of the blog and double clicking on “International Criminal Court.”

[3]  See Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011). Other posts relating to the ICTR and the ICTY may be found by going to the “tag cloud” in the upper right portion of the blog and double clicking on “International Criminal Tribunal for Rwanda” and “International Criminal Tribunal for the Former Yugoslavia.” See also David Weissbrodt, Fionnuala D. Ní Aoláin, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 519-22, 536-40(4th ed. 2009)(ICTR)[“Weissbrodt”]; id. at 513-19, 533-36, 540-42 (ICTY).

[4]  Weissbrodt at 548-50.

[5]  Id.

[6] [Timor-Leste] Judicial System Monitoring Programme, http://www.jsmp.minihub.org; War Crimes Studies Center, East Timor Special Panels for Serious Crimes Documents, http://socrates.berkeley.edu/~warcrime/ET-special-panels-docs.htm.

[7] Agreement between the U.N. and Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone (Jan. 16, 2002), http://www.sc-sl.org/LinkClick.aspx?fileticket=CLk1rMQtCHg%3d&tabid=176. See also Weissbrodt at 543-47.

[8] Statute of the Special Court for Sierra Leone, http://www.sc-sl.org/LinkClick.aspx?fileticket=uClnd1MJeEw%3d&tabid=176.

[9] The Special Court for Sierra Leone, http://www.sc-sl.org/HOME/tabid/53/Default.aspx.

[10]  Id.; Weissbrodt at 545-46.

[11]  Id.

[12] See n.3 supra.

[13]  ECCC, Introduction to the ECCC, http://www.eccc.gov.kh/en/about-eccc/introduction; Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under cambodian law of crimes committed during the period of democratic kampuchea, http://www.eccc.gov.kh/en/documents/legal/agreement-between-united-nations-and-royal-government-cambodia-concerning-prosecutio.  See also Weissbrodt at 476-81, 547-48. See generally Cambodia Tribunal Monitor, http://www.cambodiatribunal.org (news, information and commentaries on Extraordinary Chambers).

[14] Id.

[15] Cambodian Law on the Establishment of the Extraordinary Chambers, http://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf.

[17]  Id.; Giry, Cambodia’s Perfect War Criminal, N.Y. Rev. Books (June 26, 2011); Assoc. Press, Cambodia: Khmer Rouge War Criminal Appeals Sentence, N.Y. Times (March 28, 2011).

[18]  Mydans, Ex-Khmer Rouge Leaders Go on Trial in Cambodia, N.Y. Times (June 26, 2011); Mydans, Khmer Rouge Leader Leaves Court, in Sign of Legal Wrangling to Come, N.Y. Times (June 27, 2011).

[19]  Id.; ECCC, Appeal by the International Co-Prosecutor Against the Rejection of Investigative Requests in Case File 003 (Aug. 19, 2011), http://www.cambodiatribunal.org/blog/2011/08/appeal-international-co-prosecutor-against-rejection-investigative-requests-case-file; ECCC, Press Release by the Co-Investigating Judges Regarding Civil Parties in Case 004 (Aug. 8, 2011), http://www.cambodiatribunal.org/blog/2011/08/press-release-co-investigating-judges-regarding-civil-parties-case-004.

[20]  Assoc. Press, Cambodia Rebuffs U.N. Chief on Khmer Rouge Trials, W.S.J. (Oct. 27, 2010); Miller, KRT judge talks court controversies, Phnom Penh Post (Aug. 18, 2011).

[21]  Special Tribunal for Lebanon, Mandate and Jurisdiction, http://www.stl-tsl.org/section/AbouttheSTL.

[22]  Id.

[23]  Id.

[24]  Special Tribunal for Lebanon, Chambers, http://www.stl-tsl.org/sid/26.

[25]  E.g., Bakri, Tribunal Names 4 in ’05 Killing of Lebanese Leader, N.Y. Times (June 30, 2011); Bakri, Indictment in Hariri Assassination Is Published, N.Y. Times (Aug. 17, 2011); Crane & Del Ponte, Justice for Hariri’s killers requires the world’s support, Wash. Post (Aug. 16, 2011).

[26] Reuters, U.N.’s Lebanon Court to Probe Three Hariri-Linked Attacks, N.Y. Times (Aug. 19, 2011).