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International Law and American Criminology: Lessons of Racist Torture and Reparations from Geneva to Chicago

Abstract

This paper considers the development of international criminal law and as a field of study in American criminology. Despite the important U.S. role in establishing the International Military Tribunal and war crimes trials at Nuremberg following World War II, American politicians and criminologists did little to advance the further development of international criminal law or courts. Post-war Cold War tensions between the Soviet Union and the U.S., and domestic research preoccupations of American criminologists, discouraged further contributions. Finally, following the collapse of the Soviet Union and the outbreak of atrocities and war crimes in the Balkans, the United States took renewed interest and helped to create an ad hoc International Tribunal for the Former Yugoslavia [ICTY]. However, when the U.N. established a permanent International Criminal Court [ICC] to handle the prosecution of war crimes, American enthusiasm and support waned, and it ceased during the Trump Administration. Yet there were other signs international criminal law could still be significant. When the U.S. was revealed to be torturing detainees in Iraq, and a police detective was found to be operating a torture squad in Chicago, the U.N. High Commission on Human Rights [UNHCHR] used its procedures to pressure the U.S. and the city of Chicago to investigate. Later, the same procedures were used to pressure Chicago to support a reparations program for victims and families of police torture. International criminal law was more resilient and relevant than is commonly believed.

A False Start

The end of World War II and the approach of the second half of the twentieth century seemed to signal a promising victory for international criminal law at the Nuremberg Tribunal. The Tribunal’s American Chief Prosecutor, Supreme Court Justice Robert Jackson, insisted America was fully committed to following the guiding precedents this new institution would set. “We are not prepared to lay down a rule of criminal conduct against others,” Jackson famously insisted, “which we would be unwilling to have invoked against us.”

However, neither international law nor American criminology were up to the task of monitoring Jackson’s promise, despite the American criminologist Sheldon Glueck’s important contributions discussed below. Did we expect too much?

In his recent two volume treatise on Law’s Trials and Law’s Wars, the distinguished law professor Richard Abel (2018a, b) suggests as much. He focuses on the contemporary American 9/11 trauma. His conclusion, almost two thousand fact and theory filled pages later, is that the American judiciary’s efforts in responding to 9/11, if nothing else, demonstrates a resilience in the rule of law within an international framework. To my surprise, by the time I finished writing this essay, I found myself open to Abel’s argument.

The present essay has two parts. In the first part, I consider the failed hopes that Nuremburg would set the foundation after World War II for a precedent based development of international law that would find a robust application in the United States as well as beyond. In this respect, the follow up to Nuremberg was a disappointment. However, in the second part of this essay, I argue in agreement with Able, that at least some goals of a resilient international rule of law have nonetheless been achieved, and using Chicago as the example, with beneficial domestic results. Maybe that is as much or more than should have been expected.

This paper narrowly focuses on American responsiveness to international criminal law. The priority I assign to the American experience is purely a product of what I know, and it is emphatically not intended to suggest what I believe others should study. Quite the opposite. Although the United States with its foreign entanglements is the knowledge base from which I am best able to start, I earnestly hope that it is but one point of departure that will find a place among others in the development of a far broader comparative understanding.

Sheldon Glueck and the 20th Century American Dream

Neither international criminal law nor American criminology proved capable of fulfilling Justice Jackson’s commitment, despite American criminologist Sheldon Glueck’s important contributions to developing some of Nuremberg’s lasting principles. And it wasn’t because Glueck didn’t try.

Glueck, whose name is memorialized in the American Society of Criminology’s Sellin-Glueck Award for contributions to international criminology, played a major role as a key participant in the Tribunal’s planning committee led by Justice Jackson. Glueck (1945) set out basic principles to guide the Tribunal’s work and even devised the methodology that was adopted to organize the collection of documents for the trial. Glueck’s papers, which are archived at Harvard, document his formulation of what famously became known as the “Nuremberg Principle”: that a soldier cannot claim as a defense that s/he has simply “followed orders” if s/he could or should have understood that the orders were illegal (see Hagan and Greer 2002).

Yet Glueck was not picked by Justice Jackson to go to Nuremberg, and he ended his work on international criminal law, and its tentative early link to the development of American criminology, when the Tribunal finished its most important cases. Sheldon and his wife Eleanor proceeded instead to make their better known contributions to American criminology by tracking the life histories of juvenile delinquents. This work anticipated the important field of life course criminology. It is not difficult to understand the thinking behind the Gluecks’ radical shift in career plans.

Years later, in an oral history interview, Justice Jackson offered this rationalization for his decision not to take Jewish lawyers such as Glueck to Nuremberg. His interpretation was that “most of them felt … they ought to do their work in the background and not be put forward into places of great prominence in order to avoid the impression that it [Nuremberg] was a Jewish enterprise” (cited in Phillips 1995, p. 1206). Glueck could be forgiven for concluding the prospects of making his name in criminology through international criminal law were less than ideal, notwithstanding his important books (e.g., 1944) and a frequently cited Harvard Law Review (1943) article on this topic.

There were other factors suggesting that the prospective link between international criminal law and international criminology would not be promising during the half century after Nuremberg (Dezalay and Garth 2006). Haberstam (1994), in his best-selling account of The Fifties, makes clear just how rapidly Nuremberg passed from America’s collective memory. The lengthy index to this book contains no entries to international criminal law, Nuremberg, war crimes, or the Holocaust. In the middle years of the twentieth century, life rapidly moved on, and the promises of the war years were quickly forgotten.

Criminologists, just beginning to make their scholarly ascent in the academy, were preoccupied like other Americans with the massive post-war baby boom. Their concerns were about the next generation—not what they mistakenly regarded as problems of the past. Sheldon and Eleanor Glueck charted a parallel path forward with their monographs about delinquency (1950, 1968). International criminal law was not seen as particularly relevant to the post-war baby boomer’s teenage children or the resulting new field of juvenile delinquency.

International Criminal Law, Criminology, and the Cold War

Dezalay and Garth (2006) document that the mid-twentieth century was a difficult time for immigrant legal scholars in general. Nonetheless, they identify three prophetic international human rights organizations—the International Commission of Jurists, Amnesty International, and Human Rights Watch—that successively struggled to break new ground in establishing a place for international law in American law schools and politics after World War II and Nuremberg. A number of immigrant scholars, such as Cherif Bassiouni and Aryeh Neier, were important in this work, and the new organizations they started made important headway. In particular, Amnesty International and Human Rights Watch brilliantly used both popular and elite media to elevate America’s consciousness of human rights atrocities in the 1990s.

The American political criminologist Austin Turk (1969; see also Chambliss and Seidman 1971) further explained why this breakthrough took so long to happen. A key factor was the post-World War II reliance of both the Soviet Union and the United States on their respective territorial “spheres of influence.” Far apart, geographically as well as ideologically, each nation was preoccupied with the nearby countries it dominated in making itself feel more secure, and neither country believed the rules of international criminal law would be useful in advancing their respective regional interests. Instead, they asserted their respective rights to forcefully intervene where each thought necessary, while ignoring inconvenient dictates of international law to the contrary. For example, the United States asserted its right to invade Nicaragua and the Dominican Republic, and the Soviet Union did the same in Hungary and Czechoslovakia.

Thus it took nearly 50 years, in American law schools and through the establishment of advocacy organizations and international ad hoc criminal tribunals, to forge a place for international criminal law in shaping world events and to even be much noticed by American criminologists. International criminal law and its advocates, many of whom like Glueck were first generation immigrants with marginal positions in its universities and law schools, were not able to fully make their mark until the fall of the Soviet Union. Following this world altering collapse, an important opportunity finally emerged. It came in response to Serbia’s aggression in the Balkans and the resulting creation of the International Criminal Tribunal for the former Yugoslavia (Scharf 1997; Hagan 2003).

Thus neither Americans nor criminologists regarded international criminal law as a key consideration when they watched the buildup to the Vietnam War in the 1960s. Again, this is not to say that international criminal law was not relevant, but rather that this body of law was not seen as a source of strategic advantage. It took the collapse of the Soviet Union to make this happen.

Finally, when the Balkans war broke out in the 1990s in the former Yugoslavia, and when America went to war in Iraq in 2003 (Packer 2006; Hagan et al. 2015) and simultaneously decided not to intervene in the Darfur genocide (Hagan and Rymond-Richmond 2009; Savelsberg and Brehm 2015), meaningful questions of international law finally began to find a renewed place in legal and policy discourse.

U.S. political support for an international law approach reached a near term peak in the Clinton administration, for example, through the advocacy of Albright (2003) and the work of Scheffer (2012), which resulted in the creation of several ad hoc international criminal tribunals, including for the former Yugoslavia [ICTY]. The Bush administration continued to support the ICTY, but by the Obama administration, despite the advisory role of Samantha Power, the influence of international criminal law was again on the wane, and it largely evaporated with the arrival of the Trump Administration.

Even during the Clinton Administration, there was not a great deal of independent funding available for American criminologists to pursue research on crimes prosecuted at the new ICTY—which included the neglected crimes of rape, mass atrocities, and genocide (see, for example, MacKinnon 1989). As Savelsberg (1994, p. 934) notes, “When research is funded by political agencies, which to a large extent is the case in criminology and criminal justice studies, then it is rather likely that academically produced knowledge will follow political knowledge.” Savelsberg’s research offers compelling support for this thesis, and it helps to explain the lagging critical interest of criminologists in international war crimes.

International Criminal Law and Criminology in the Post-Soviet Period

As noted above, in 2003 the U.S. government chose to bend international criminal law by invading Iraq, while at the same time deciding not to militarily intervene in the genocide in the Darfur region of Sudan. Most American criminologists had relatively little knowledge of the African genocides in Rwanda or Darfur, but Iraq was different and should have been harder to ignore because of the direct American involvement. Both the first and second Bush administrations openly took on Saddam Hussein’s Iraq regime, albeit in very different ways. This made it perhaps surprising that more American criminologists did not become involved in research or advocacy about Iraq, especially when the second Bush administration decided to invade Iraq.

Saddam Hussein’s regime in Iraq initiated genocidal violence against the Kurds in the 1980s, and following the first gulf war in the 1990s, President George H.W. Bush publically incited the Shia to rebel against Saddam, although he then refused to overtly intervene when Saddam ordered brutal attacks against the Shia.

It wasn’t until after the 9/11 attacks that the second President Bush chose to invade Iraq. By this time, Saddam’s regime had bureaucratized its use of violence, disassembled its weapons of mass destruction, and was no longer a genocidal threat. The dark irony was that while the National Commission on Terrorist Attacks on the United States had concluded that Saddam Hussein had nothing to do with Osama bin Laden’s planning of the 9/11 attacks, Osama bin Laden had been given safe haven in Sudan, which was continuing to commit genocide in Darfur.

Sudan’s leadership had not only cooperated with bin Laden by hosting him and his entourage in Sudan until 1996, it also actively encouraged bin Laden, albeit ineffectively, to initiate ties with Saddam. As events in 2002 and 2003 led up to the invasion of Iraq, the United States did little to deter the crimes of genocide that were unfolding in the Darfur region of western Sudan. The signing of a peace agreement in South Sudan, ending 20 years of genocidal violence in this part of the country, was given priority over responding to Sudan’s growing perpetration of atrocity crimes and then genocide to the west in Darfur.

The Sudanese government had in the past leveraged its government military forces with local Arab militias, the feared “Janjaweed,” to overwhelm African indigenous groups. Sudan’s regime in Khartoum now correctly calculated that the United States would be too consumed with its invasion of Iraq to challenge a quick and brutal repression by the Sudanese government of the African groups in Darfur.

The crimes that unfolded in Darfur—before and contemporaneously with the invasion and occupation of Iraq—involved genocide on a grand scale. The violence that exploded in the spring and summer of 2003 was massive. As many or more than 300,000 ethnic Africans died, while two to three million were displaced from their homes and villages in Darfur in 2003 and 2004 (Hagan and Palloni 2006).

The U.S. state department documented this genocidal violence with detailed survey work among Darfurian refugees in neighboring camps in Chad, and it used the resulting evidence to declare the violence a genocide. However, it then abstained from a U.N. Security Council resolution that allowed Sudan and its leadership to be referred for investigation to the International Criminal Court. The United States also declined to undertake a humanitarian intervention in Darfur that could have directly responded to the loss of hundreds of thousands of African lives.

Instead, American eyes were focused on Iraq and the pre-emptive invasion designed to remove the alleged threat to the United States and its allies of Saddam’s presumably hidden weapons of mass destruction [WMD]—despite reports of U.N. inspectors that there were no longer WMD to be found. It was a triumph of legal cynicism and criminal militarism that led to the choice to invade Iraq, while Darfur became the path not taken. In explicit violation of international criminal law and any plausible justification of self-defense, the United States invaded Iraq in a war of choice and aggression (Hagan et al. 2015).

Flash forward 5 years, in May of 2008, the Republican Party knew it would be nominating John McCain to run for President and Hilary Clinton and Barak Obama were still battling for the nomination of the Democratic Party. In a rare moment of political unanimity, all three candidates signed a full page pledge published in the New York Times (2008) promising that “WE STAND UNITED ON SUDAN.” Their promise was that “If peace and security for the people of Sudan are not in place when one of us is inaugurated as President on January 20, 2009, we pledge that the next Administration will pursue these goals with unstinting resolve.”

Yet when Barak Obama was elected President, there was little sign of this U.S. presidential or congressional resolve. Mass atrocities and displacement continued in Darfur. And the war in Iraq remained a crime of aggression that was only passively acknowledged by American politicians or American criminologists. These massive crimes still beg for increased criminological attention (Hagan and Hanson 2016).

Still, contradictions stemming from these conflicts continued to be raised by social advocacy groups within an international framework of law and crime. And as we suggest next, activists sometimes have been surprisingly creative in finding ways to mobilize the influence of international law—abroad and even within the United States.

From Chicago to Geneva and Back

Abel (2018a, p. 682) writes in Law’s Wars that in responding to America’s “War on Terror,” “defenders of the rule of law achieved only partial victories …. A few foot soldiers were punished for the abuses at Abu Ghraib but not their superiors, and certainly not those whose orders encouraged the abuses.” This summation is consistent with our own assessment, both in Iraq (Hagan and Hanson 2016) and beyond. But as Abel documents, there is more to this story, and it suggests that the interplay of social activism and international law can sometimes bring unexpected victories that are more consequential than commonly realized, and that should be of considerable interest to criminologists.

Our example involves an unexpected conjuncture in 2005 between the well-known torture of mostly Sunni detainees by American soldiers at Abu Ghraib prison and an ongoing investigation of police torture led by Chicago detective Jon Burge of more than a hundred African-American men on the hyper-segregated south side of this city.

The back story of this racially targeted torture unfolded in Chicago during Richard M. Daley’s years as state’s attorney and mayor. Two important writers, John Conroy and Flint Taylor, have written about the Burge case, resulting in two landmark books: Conroy’s (2000) Unspeakable Acts, Ordinary People and Taylor’s (2019) The Torture Machine. Both traced the beginning of this torture to the 1970s and located its peak in the mid-1980s (see also Baer 2020; Ralph 2020); as well, both agreed that Chicago’s second Mayor Daley bore personal responsibility for covering up and protecting Detective Burge from criminal prosecution. Burge was finally fired in 1993 by the Chicago Police Department, but he still had not faced criminal charges for this torture in 2005, when the events at Abu Ghraib Prison in Iraq exploded into public view (Taguba 2004).

By this time, social activists in Chicago had been pushing for the criminal prosecution of Jon Burge for several decades (Baer 2020). The journalist Conroy, and the lawyer Taylor, had been working with south side activists throughout this period to pressure state prosecutors to charge and prosecute Burge. In 2002, they succeeded in getting a special state prosecutor appointed to investigate the case, but the investigation had languished for several more years without producing a report of its results. Finally, in 2005, the parallel between the torture at Iraq’s Abu Ghraib prison and Chicago’s Police Area 2 caught the attention of human rights advocacy groups and lawyers. This presented an important opportunity to bring international criminal law to bear in a unique way.

The African American Chicago lawyer, Standish E. Willis, was among the first to draw attention to the significance of the legal connection between the torture of American soldiers at Abu Ghraib and Chicago. Willis had grown up on the west side of Chicago and was a gang leader during his youth. His life took a turn when he joined the Air Force and subsequently earned a law degree. During this period, Willis organized the African American Defense Committee against Police Violence. While at home one day in 2005 with the flu, Willis heard a television news report about a Committee against Torture [CAT] hearing being held about Abu Ghraib at the U.N. High Commission on Human Rights [UNHCHR] in Geneva.

Willis put his organizational skills to work by enlisting the support of Illinois Congressman Danny Davis and the National Conference of Black Lawyers. He focused on gaining compensation for victims of Chicago police torture and eliciting a report from the long delayed special prosecutor investigation of the Jon Burge torture case. Willis succeeded in getting a hearing scheduled about the Chicago case in Geneva but was unable to attend. In his place, two Chicago legal activists—Joe Magoies and Susan Gzessch—travelled in May of 2006 to appear before the Committee Against Torture [CAT] at the United Nations High Commission on Human Rights [OHCHR].

With the cooperation of UN High Commissioner Louise Arbour, the CAT was continuing its review of torture by American soldiers. Arbour had already made history by indicting the first sitting head of state, Slobodan Milosovic, at the Tribunal for the Former Yugoslavia. Under the authority of the Human Rights Council, and with the support of Arbour at the OHCHR, the CAT scheduled reviews of torture by American soldiers in Iraq and police officers in Chicago. The logic was not only that the United States had used torture in both locations, but also that in both places the victims were specifically targeted racial/ethnic groups.

In Iraq, the torture was mostly of Sunni civilians, while in Chicago it was almost entirely African-American detainees. Using a process called Universal Periodic Review, the Committee asked the United States as a UN member state to account for its use of torture in Iraq and to complete its four-year torture investigation by the special prosecutor in Chicago. The CAT instructed that the United States “should promptly, thoroughly and impartially investigate all allegations of acts of torture by law enforcement personnel and bring perpetrators to justice” (Committee Against Torture, 36th Session, 1–19 May 2006).

Following the Geneva Hearing, public attention was intensified in Chicago when John Conroy and Flint Taylor, along with David Bates, a victim of Chicago police torture, discussed the hearing about the Burge case in Geneva on Amy Goodman’s (2006) nationally televised news show Democracy Now! The episode focused on the special prosecutor’s long delayed report. Goodman began by noting the provocative connection between torture in Iraq and the South Side of Chicago:

Abu Ghraib. Guantanamo Bay. Practices and places that have become synonymous with the abuse of detainees in US custody.… But there is one name … few people in this country will have heard about … It’s called Area 2. … The epicenter of systematic torture of dozens of African-American males by Chicago police officers.

Conroy and Taylor agreed that Goodman had her facts straight, but as they spoke, a difference in their own respective viewpoints became apparent.

Goodman asked why the Area 2 story was not more widely known and had not been addressed. To answer, Conroy drew from a chapter in his book titled “The Public is not Aroused”:

… the reason why it’s dragged on—I differ with the estimable Mr. Taylor here on this—is that there is no community outrage. People don’t care. … It’s African American men, most of them with criminal records. And they’re just beyond the pale of our compassion. We just don’t care.

Conroy’s logic was that just as the ruling Shia in Iraq didn’t care about torture of the Sunni, most white Chicagoans didn’t care about the torture of African-Americans.

Taylor’s perspective, like the work of Abel (2018a, b), was more optimistic. He suggested the litigation of Chicago civil suits combined with the anticipated special prosecutors’ report and the intervention by the CAT—could produce the needed public outrage. Taylor explained, “John [Conroy] and I disagree … The public outrage reaches certain proportions at different times. We’re at one those key points again today.”

Conroy acknowledged the present moment seemed promising, yet he also urged caution:

How significant … remains to be seen …. [T]o see [Chicago] … being mentioned in a phrase with Abu Ghraib and Guantanamo is quite thrilling. But whether this will just be one of those media … comes in for a day or two and then leaves remains to be seen.

In his concluding book chapter titled “Bystanders,” Conroy (2000, p. 256) observed, “It seems a very small leap to argue that torture is the perfect crime … in the vast majority of cases, only the victim pays.”

While Conroy is correct that it is the victims of torture who most often pay, and pay dearly, nonetheless, there is in Taylor’s more optimistic perspective, as in Abel’s work, an interesting suggestion of why this is so and how international law could still be used to deter torture. Anticipating that the report of the special prosecutors would likely be disappointing, and to a large degree a product of loyalists to the Daley political machine, Taylor (2019:338–40) shifted his hopes from the state to the federal courts and U.S. Attorney Patrick Fitzgerald.

There are continuing criminal violations here, and if the special prosecutor won’t do anything about them, then Fitzgerald, who is the U.S. Attorney … has to open his investigation into federal RICO or racketeering charges, as well as the obstruction of justice and perjury charges.

Flint insisted that to have Chicago grouped through international criminal law with Abu Ghraib should “wake up the U.S. Attorney’s Office.” Whether this wakeup call would be sufficient to stimulate RICO and racketeering charges would prove a different matter.

A few days later, a Chicago judge held hearings about the undisclosed special prosecutor’s report, and within the week, urged on by local activists, he ordered that the report be made public. Even though the report was a disappointment, having the case in public view and linked through the CAT and international criminal law to war and torture in Iraq was consequential. The torture scandal was now squarely in U.S. Attorney Fitzgerald’s hands and it was impossible to ignore.

Flint’s allusion to RICO and the possibility of making the Chicago torture scandal into a racketeering and corruption case implied going after high-level figures; but, Fitzgerald ultimately chose instead to prosecute only Jon Burge, and not for racist torture, but for perjury and obstruction of justice. Fitzgerald had the challenging task of being the first prosecutor after the several decades of cover-up to take on this issue. He succeeded in getting Jon Burge convicted for perjury and obstruction, and Burge was sentenced to four and a half years in prison.

Yet Daley was never charged, much less convicted, of covering up Burge’s torture. He had knowingly allowed this torturer to go free, even after the Police Department fired Burge for leading the torture. This outcome is consistent with Abel’s conclusion that defenders of the rule of law rarely achieve more than partial victories and that this is “all that is ever possible.” However, it is also consistent with Abel’s (2018a, p. 653) further insistence that “law matters” and that this was not the end of the Chicago story.

Geneva, International Law, and Reparations in Chicago

Ram Emanuel, the chief fund raiser who helped get Richard M. Daley first elected mayor of Chicago in 1989, followed in his footsteps. After Daley announced he would not seek reelection in 2011, Emanuel was elected mayor in 2012. During Emanuel’s second year in office, 17 year old Laquan McDonald was shot and killed by 16 bullets fired by policeman Jason Van Dyke. For 13 months following the killing, Emanuel withheld a police dash-cam video of the shooting, which when finally released by judicial order was central to Van Dyke’s conviction for murder. The New York Times would later run an editorial drawing a connection between Emanuel’s methods and those of his predecessor.

As in the Daley and Burge case, there was a fundamental question: would responsibility lead to the top, in this case to Emanuel, or would it stop with the Chicago Police Superintendent and the Cook County State’s Attorney. In 2015, Emanuel fired Superintendent Gary McCarthy and then distanced himself from State’s Attorney Anita Alvarez, who was defeated in a following primary challenge.

Emanuel’s own reputation was tarnished in the process, and he was anxious to redeem himself. His solution followed another appeal to the U.N.’s Committee against Torture. Human rights advocates travelled to Geneva in 2014, this time to brief the UN CAT about their demands for reparations for the torture crimes of Detective Burge. Willis again played a central role in developing the arguments for compensation of torture victims, rallying support by identifying this argument for compensation as a demand for “reparations.”

Locally, this initiative involved calls for the Illinois Reparations for Police Torture Victims Act and the establishment of a Chicago based Center for Torture Victims and Families, as well as the appointment of an Illinois Innocence Inquiry Commission to adjudicate the innocence of torture victims. These proposals were taken to a Chicago hearing of the UN Committee on the Elimination of Racial Discrimination (CERD), which was followed by passage of the Illinois Torture Inquiry and Relief Commission Act to review torture claims linked to Burge.

Following Burge’s 2010 criminal conviction for perjury and obstruction, the lawyer activist Joey Mogul established an organization known as the Chicago Torture Justice Memorials [CTJM]. The goal was to assure that the racist torture led by Jon Burge would not be forgotten. Mogul drafted a city ordinance patterned in name and substance after the proposals of Stan Willis for victim and family torture reparations.

Flint Taylor (2014) added his advocacy skills to the growing reparations movement with a 2013 Huffington Post article that posed this question:

What if Mayor Emanuel, on behalf of the city and its police department … stood in front of the old Area 2 “House of Screams” at 91st and Cottage Grove and issued a joint apology to all of Chicago’s citizens, together with a pledge to create a reparations fund to compensate those still-suffering survivors of Chicago police torture who were cheated out of lawsuits by the cover-up of the scandal?

Attorney Mogul in turn revised the reparations ordinance to include an official apology, compensation to the survivors, tuition-free education for them at Chicago City Colleges, and the establishment of a community center to provide psychological counseling, health care services and vocational training to those affected by law enforcement torture and abuse. The draft repeated calls for a reparations fund and also for the Chicago Public Schools to incorporate torture cases into its educational curriculum as well as to create public torture memorials.

In 2014, advocacy organizations and activist lawyers submitted a brief asking that the CAT call on the US Government to support the Reparations Ordinance. Attorney Shubra Ohri travelled to Geneva with a growing We Charge Genocide group to raise the matter with the CAT. Their presentation built on Article 14 of the UN CAT that guaranteed reparations for victims of police torture.

The CAT once again played a key role by recommending that the “state party” [i.e., Illinois] should “provide redress … by supporting … a proposed Ordinance entitled ‘Reparations for the Chicago Police Torture Survivors’” (2014). Attorney Mogul’s CTJM organization leveraged resulting Chicago media coverage to get aldermen signed on to the Reparations ordinance. Mayor Emanuel now gave his full and final support to the Reparations Ordinance, announcing before Council that: “This is another … essential step in righting a wrong, removing a stain on the reputation of this great city.” The following year, with Mayor Emanuel’s continued support, Chicago City Council approved the ordinance, including $5.5 million in financial compensation.

Resilience in the International Rule of Law

I end this essay in unexpected agreement with Richard Abel’s (2018a, pp. 650, 653) conclusion that there are indeed redeeming elements of “resilience” observable in the international rule of law—despite its failings. For example, while the Committee against Torture at the U.N. High Commission on Human Rights may have failed to provoke a meaningful American investigation of Donald Rumsfeld, Dick Cheney, and George Bush’s aggression in Iraq, and/or the torture that followed during the resulting occupation, the Obama administration was at least provoked into responding to the Committee’s complaints about its activities in Iraq, and it addressed these complaints in going forward.

This same Committee—albeit without the authority much less enforcement power to directly intervene—nonetheless helped indirectly elicit a long delayed report from the special prosecutor’s investigation of Chicago Mayor Richard M. Daley’s cover up and failure to stop the torture operations led by Detective Jon Burge in Chicago. And in the latter case, it accomplished additional goals that might never have succeeded otherwise. These included introducing external pressure that at least indirectly helped convince the U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, to successfully prosecute Jon Burge for perjury and the obstruction of justice. The trial did not call these crimes racist torture or expose the police code of silence that allowed these atrocities to go unpunished for so long, but Jon Burge was at least convicted and imprisoned for several years for the crimes of perjury and obstruction. And several years following this, the Committee again indirectly applied external pressure that encouraged passage of the Chicago Reparations Ordinance, providing 5.5 million dollars of compensation for the victims of the Burge led torture, as well as educational and other benefits.

So I concur with Abel’s conclusion that international law and leadership have succeeded in contributing to real—albeit limited—changes in American responses, for example, to the egregious crimes of Chicago’s Jon Burge. The sociologists Bruce Carruthers and Terry Halliday (2007) further argue that international law can have an important influence they call a “recursive effect.” Chicago again provides an example. International law played a significant role by introducing important concepts and expectations into the legal debate about reparations. Consideration of Chicago’s Reparations Ordinance in the CAT’s International Periodic Review process established a cycle of communication that lent legal authority to the demands of activist groups that the United States, as a member state of the United Nations, has a responsibility to compensate victims of police torture.

The Chicago case suggests that local governments and actors can bypass the domestic authority of nation-states to stimulate action through international legal institutions. Thus there is convincing evidence that, as Abel indicates, international law indeed matters. American criminology needs to pay more attention and devote more research to this process.

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Hagan, J. International Law and American Criminology: Lessons of Racist Torture and Reparations from Geneva to Chicago. Int Criminol 1, 38–45 (2021). https://doi.org/10.1007/s43576-020-00002-x

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Keywords

  • Crime
  • International law
  • Criminology
  • Tribunals
  • Torture
  • Reparations