In recent years, consumed by the war against al Qaeda, we have addressed secrecy and accountability in a homegrown way — concerned with information the American executive branch has kept to itself, what was shared with the Congress (though a transcript is often not made at the instance of both parties), and who should take the blame for things that go wrong. This has been a preoccupying exercise, for no one likes to be labeled as the father of an irregular event, and when made the object of surveillance, the American people tend to be jealous of their privacy. The collection of MUDS and LUDS — now famous as telephone ‘metadata’ — may be familiar to every street prosecutor (or at least, to this former fed), but it has indeed not required even a search warrant in a criminal investigation. This will not lessen the startle of John Q. Citizen — who does not like to suppose that someone could be following his every move.
But in welcoming public discussion of accountability in the campaign against terrorism, we have allowed evasion of a different aspect of decency — the question of how we address the circumstances of conspicuous violence and mass destruction in civil wars. This is, so often, tantamount to another form of terrorism, since armed factions often deride the idea of an organized state and have no scruple about attacking civilians.
We have set up international war crimes tribunals to deal with the cruelties of terroristic acts in recent civil conflicts, but we have allowed the bending of their judicial neutrality to suit a politics of convenience. The fact that such acquiescence has many authors does not improve its rank flavor, for it is the opposite of accountability. Despite the high idealism of investigators, lawyers and judges, more than crumbs have been swept under the rug, to preserve a record that suits the evolving politics of friends and allies. Criminal courts should be known by what is prosecuted and punished, not what is shredded or buried in their files. An “arrangement” of the French variety also leads to a rank distortion of the historical record, inconsistent with any ideal of even-handed justice. Certainly it undercuts a policy of deterrence, instructing that much will be forgiven, and indeed forgotten.
Two examples should suffice for this meme of evasion, with its averted eyes of silence. The first is the civil conflict in Rwanda, which cost the lives of nearly one million people. At the urging of the United States, a Hague war crimes tribunal was established by the UN Security Council, acting under the chapter 7 powers of the UN charter. The court was given a mandate to examine any violations of the law of war, as well as acts of genocide and crimes against humanity during the bloody events of the calendar year 1994. Investigations and prosecutions were, of course, supposed to go where the law would take them, without playing favorites.
It was logical that UN prosecutors would focus first on the terrible slaughter in spring 1994 — when some 800,000 Tutsis and others were beaten and cut to death by the brute means of cudgel and machete, wielded by the legions of Hutu Interahamwe. The witnesses to these crimes were still resident within Rwanda, and the active cooperation of the victorious Tutsi regime was necessary to make the charges stick.