Air Date: July 15, 1997 Program 9728

THE CASE FOR A PERMANENT INTERNATIONAL CRIMINAL COURT

Guests:
Cherif Bassiouni, President, International Human Rights Law Institute, DePaul University;
Chair, UN Investigative Commission on Bosnia

(This text has been professionally transcribed, However, for timely
distribution, it has not been edited or proofread against the tape.)

MARY GRAY DAVIDSON: This is Common Ground.

CHERIF BASSIOUNI: We have been conducting a study of conflicts since World War II and we have identified close to 300 different types of conflicts totally close to a hundred and fifty million casualties. Now that's twice as many people killed in World War I and World War II put together, and yet, in most of these cases we have seen that people have received impunity.

DAVIDSON: The case for a permanent international criminal court on this edition of Common Ground. Common Ground is a program on world affairs and the people who shape events. It's produced by the Stanley Foundation. I'm Mary Gray Davidson.

After World War II the victors held war crimes trials in Nuremberg and Tokyo. In more recent years the international community, under the auspices of the United Nations, has created temporary tribunals to try those accused of war time atrocities in Rwanda and the former Yugoslavia. But many people feel these ad-hoc courts are not enough and are pushing for the world to create a permanent international criminal court. Cherif Bassiouni, a professor of law at DePaul University is one of those convinced that we need such a court. Bassiouni is President of the International Human Rights Law Institute and he's served as Chair of a United Nations Committee of Experts who were investigating violations of international law in the former Yugoslavia.

BASSIOUNI: The efforts of the world community to establish a permanent international criminal court started really after World War I. And so it's been going on since 1920. After World War II, we had the two big tribunals in Nuremburg and Tokyo and then we had a host of national war crimes tribunals and then the whole effort sort of eroded significantly, probably because of the cold war. And then with the Yugoslavia and Rwanda situations the Security Council established two specialized ad-hoc tribunals and it was quite clear that establishing ad hoc tribunals presented difficulties, both practical, linguistical, as well as political difficulties. And so I think now everybody has come to the realization that we need a permanent institution, that we can't reinvent the wheel every time we have a major conflict where genocide, crimes against humanity, and war crimes are committed. And by having a permanent institution, that body will be able to deal with these crimes.

DAVIDSON: Do you envision this as being separate from the World Court which is situated at The Hague.

BASSIOUNI: Well, the International Court of Justice which is in the Hague is part of the United Nations. It's one of the bodies of the U.N. It's statute is appended to the Charter of the United Nations, but the ICJ, the International Court of Justice, deals exclusively with disputes between states. And it deals essentially with civil or political matters in the largest sense of the word. To give you an idea, there have been claims dealing with commercial matters, with navigational rights, with fisheries, with the Continental Shelf or oil and gas exploration. There have also been cases involving, for example, the Iran hostage taking in '79 or a case brought by Nicaragua against the United States for the para-military activity of the contras. So it covers a wide range of issues, but they are mostly issues between governments. The permanent international criminal court will deal with individuals. People who are individually responsible for committing the major crimes, which are genocide, crimes against humanity, and war crimes.

DAVIDSON: OK, so we're talking of almost exclusively about genocide and crimes against humanity. Are there situations—you mentioned the Nuremburg trials, the Tokyo trials, are there cases since then where you think that we could have used an international criminal court?

BASSIOUNI: Well, at DePaul's International Human Rights Law Institute, we have been conducting a study of conflicts since World War II. And we've identified close to 300 different types of conflicts totaling close to a hundred and fifty million causalities. Now that's twice as many people killed as in World War I and World War II put together. And yet in most of these cases we have seen that these people have received impunity. There have been very few actual adjudications of criminal responsibility. Whenever there were political settlements to solve a problem, justice has been sort of bartered away. There have been some national prosecutions. There have been some truth commissions so has been some effort at developing accountability. But what we need to do is to have a permanent institution dealing with the three major crimes; genocide, crimes against humanity and war crimes, so that this permanent institution is insulated from the politics of developing a peace settlement.

DAVIDSON: Who would do this international criminal court?

BASSIOUNI: Presently the General Assembly of the United Nations has established what they have called a Preparatory Committee. The Preparatory Committee has been mandated by the General Assembly to develop a statute for the court. A statute is presently being drafted. The mandate is to complete the drafting by April '98. Italy has offered to host what is called a Diplomatic Conference which is a conference of all member states to ratify the convention. First to sign it at the time of the Diplomatic Conference which is scheduled for June '98 and from then on to ratify the Convention.

DAVIDSON: And who would be in charge of indicting and then of course, rounding up the people who have been charged with crimes?

BASSIOUNI: Well, the prosecutor will be the one who will investigate the case, prepare an indictment. At the present it is contemplated that the indictment would have to be approved by a chamber of the court, so that the prosecutor does not act unilaterally without some type of judicial control. So the prosecutor will take the indictment and the evidence, similar to what in the United States is called probable cause hearing or a preliminary hearing and then ask the Chamber of the Court—we don't know if the Chambers will consist of only three judges or five judges—who will then approve the indictment—and that's the way the case commences. As to who will round up the people—the court is going to be created by a treaty and therefore states will be free to join that treaty or not. Those states who will join the treaty will be bound by the treaty and by the statute. And the statute provides that the various states have the obligation to collaborate and assist and cooperate with the court in helping to secure evidence and arresting people and in transferring people to the courts jurisdiction for purposes of trial.

DAVIDSON: Now one obvious difference between this international criminal court and the Nuremburg and Tokyo courts is that it would not be a court held by the victors and it would seem that that would be an inherent advantage.

BASSIOUNI: Well, it would certainly give more credibility and more legitimacy to the court. But the disadvantage is that at Nuremburg and Tokyo, there was a victor who controlled the territory, so there was no question about arresting the persons who were accused, of having the witnesses available, of obtaining the evidence. It will be much more difficult in the case of the permanent court. Much like with the Yugoslavia court, it will still have to depend on the political will of the governments who have joined in the court to help in arresting people, in producing the witnesses, and in helping obtain the evidence.

DAVIDSON: Now you mentioned early on the Ad-hoc courts that have been set up to try accused perpetrators in Bosnia and Rwanda. And in the case of Rwanda we know there have been problems, there's just been a report issued about this court that was been set up three years ago enumerating all of the problems that court has had. Do you feel that if there had been a permanent international criminal court in place that things could have moved along much more swiftly?

BASSIOUNI: Well, the answer is definitely yes. The problems in the Yugoslavia court and the Rwanda court are somewhat different. In Rwanda the situation is this: That the government of Rwanda has in its custody between 75,000 and 90,000 persons, most of whom have been in jail for two or three years, and they could have been tried, if the courts set up by the U.N., would have been functioning. And here the main fault really is—lies with the U.N.—with the office of Legal Advisor, who was supervising the court and who was largely derelict in making sure that the personnel responsible, particularly the registrar, functioned well. The Yugoslavia tribunal on the other hand is the exact opposite. The tribunal is there, it functions, it functions well, it is a very effective operation, but it is unable to reach a number of people. 74 indictments were issued, only seven people are in custody. And the problem is that some of the governments involved, and particularly Serbia and the Republic of Sroska which is the Serb side of Bosnia, are unwilling to cooperate and unwilling to surrender people. The government of Croatia has recently become more difficult to deal with as well. And so the problem of the tribunal there is not its inability to function, it functions very well, but its inability to seize people, and that's a question of political will.

DAVIDSON: Do you think though that these two courts have only been made possible because the cold war is over and that there can be more cooperation within the Security Council? I'm thinking back to say, what happened in Cambodia when there were an estimated three million people who were murdered, which I would put under the term genocide, and yet nothing of this nature of these war crimes tribunals occurred in Cambodia.

BASSIOUNI: Well, we can say that there is certainly an influence of the cold war, however the Cambodian situation is a little different. By the way, the estimates that I see is two million people killed, but that still brings it up to 40% of the population. Out of 6 million people or 5 1/2 million people, to have two million people killed. I mean, think in a society four out of ten people who have been murdered, then yes it was a form of genocide. Though unfortunately there is difficulty fitting this type of mass killing under the narrow definition of the Genocide Convention, because the Genocide Convention says that the killing must be with the intent to eliminate a whole group. And these were Cambodians killing Cambodians for political purposes. And that's a weakness in the definition of genocide itself that hasn't been corrected. But the problem there was essentially an outgrowth of the Vietnam War in that the Khmer Rouge, who did almost all of those killings, were in effect supported by the Chinese, and the government opposing them, which was representing the victims, was supported by the North Vietnamese. And the United States, as a sort of a knee-jerk reaction against the North Vietnamese, sort of didn't allow the world community to go after the Khmer Rouge, and thought that the only way to obtain a peace settlement is to include the Khmer Rouge as part of the peace settlement and as part of the coalition government. But the government of Cambodia has always wanted to prosecute and there has been a number of studies looking into the advisability of whether the Cambodians should set up their own national tribunal or whether and international ad-hoc tribunal should be established. The problem however in Cambodia that should be recalled is that most of these killings were done between '75 and '85 and so we're speaking of 12 years later trying to gather the evidence, it becomes a very difficult task. Except if one would make the case against the leadership, then it becomes fairly easy to make a case against the leadership. But it appears so far that the political will to go against the Pol Pot and the senior people in regime—that political will is still lacking. And the present government in Cambodia is not strong enough to be able to do something about it because the Khmer Rouge are still armed, are still out in the country, and they can still do a lot of damage.

DAVIDSON: We'll pause here for a short break. You're listening to Common Ground, a service of the Stanley Foundation. My guest today is Cherif Bassiouni, Professor of Law at DePaul University, and President of the International Human Rights Law Institute. He also served as Chair of the U.N. Investigative Committee on Bosnia. Common Ground is a service of the Stanley Foundation a non-profit, non-partisan organization that conducts a wide rage of programs meant to promote thought and encourage dialogue on world affairs. Printed transcripts and audio cassettes are available of this Common Ground program. At the end of the broadcast I'll give you details of how you can order.

DAVIDSON: Now some countries have attempted to address atrocities of their past with things like truth and reconciliation commissions such as South Africa has been doing. Haiti has done that and in South America, several countries have done that a decade or two ago. But are you saying that an international criminal court is needed when the atrocities are even greater; when they fit the definition under the Genocide Convention when there have just been massive killings of people—is that the difference that we're talking about here?

BASSIOUNI: Yes, I think that the difference that is presently emerging is that the three major categories of crimes—that is genocide, the crimes against humanity, and war crimes—are those crimes for which there has to be prosecution. It doesn't matter whether the prosecution is by a national system or by an international system. But these three crimes are contained in international conventions. The obligation to prosecute exists in these conventions and therefore no state can give impunity to those people. The problem is that sometimes national justice systems do not have the capacity or the effectiveness or the political will to carry out these prosecutions, and that's why we need an international body. Now if we create an ad-hoc body every time, we're reinventing the wheel, and we're not giving it the type of legitimacy that a permanent institution has and that's why we need to have a permanent body. On the other hand, there are other types of crimes and other types of wide spread and systematic human rights violations—some of these are crimes are like torture and slavery and slave-related practices, or extra-judicial executions—but then arbitrary arrest and detention and other deprivation of human rights, which are not criminalized but which are quite serious—and it's within that range of other crimes—other than the three major crimes, that it's possible to develop other accountability mechanisms, including truth commissions, if that serves the purpose of reconciliation. It's not intended to be a fig leaf or a way to cover up for crimes, but as a genuine instrument of identifying what happened, how it happened, to give recognition to the rights of victims and then to facilitate peace and recognition.

DAVIDSON: You've already defined genocide. Could you give us short hand definition of crimes against humanity and war crimes?

BASSIOUNI: Crimes against humanity emerged at Nuremburg and they were basically defined as widespread and systematic policy based on persecution of a given group of people whether it's based on religion, race, or political beliefs, or others. So the targeting of a group of people for systematic violations including mass killings, rape, torture, imprisonment, deprivation of property and other inhumane acts like that—so that's what crimes against humanity includes. War crimes are those crimes that are committed by combatants in times of war—they're covered by the four Geneva Conventions of 1949 and two additional protocols done in '77—but they're also covered by a number of other specific conventions that prohibit for example the use of certain weapons in times of war. And these conventions, the Geneva Conventions in particular, which have been ratified by almost all countries in the world, about 180 countries, are now part of the national criminal justice laws of these countries and the national military justice systems. So there is no question as to what the specifics of these crimes are and of their recognition in the national laws of the different countries.

DAVIDSON: Do you imagine that having an international criminal court in place could serve somewhat as a deterrent to potential perpetrators?

BASSIOUNI: Well, that would be one of the principal goals of the court, and that is, if perpetrators know that they're going to be prosecuted and punished that they will hopefully be deterred. Now this may not deter the type of tyrants that we have seen throughout history. But it may deter a number of senior or even junior officers who will be able to say "well, I'm not going to obey this order and I'm not going to commit this act because I'm liable to be prosecuted." And so we do hope that it will have a deterrent action and therefore that it will prevent some harm. Obviously, it is not going to prevent all harm, but it will prevent some, and if we can create an institution that can minimize the amount of human harm that occurs, then I think it will be a very useful step to take.

DAVIDSON: Is there momentum out there for establishing a permanent international criminal court?

BASSIOUNI: There is a very strong momentum. Obviously the fact that the General Assembly has established a Preparatory Committee, has given it a specific mandate, and a deadline for its work, is a clear indication of it. But I can tell you as Vice Chairman of the Preparatory Committee, and the one who's attended consistently all of the meetings since '95, that at the beginning there were some governments that were saying no. Today the only government that is saying no is China. There isn't a single government that says no, although some governments are...

DAVIDSON: Are these among the Security Council members or are these...?

BASSIOUNI: No, no, this is all the 186 members....

DAVIDSON: Through the whole General Assembly there's only one saying no?

BASSIOUNI: That's right. The only one saying no. Now there are countries who are not in favor of it. But they're not saying no. They're doing things that are making it difficult without saying no, but at least that's a progress. Japan, Mexico, Brazil, India, Pakistan, Indonesia are some of the countries that are sort of reluctantly going along and it's quite clear that they're not favorable to it. However they're at least not saying no. Conversely there's a very strong momentum, there's a group of 48 countries that have organized and they call themselves "The Like-Minded States" and those are the governments who are pushing forward and who are quite committed to it. So the moment we have a statute drafted and a diplomatic conference, we can count on at least one-third of the countries of the world who are already committed to it and I think it will be easy to move to at least one-half of the countries of the world in a short period of time.

DAVIDSON: This is a pretty basic question, but is the pursuit of justice in these situations of grave atrocities necessary in order for a country to carry on in a peaceful fashion?

BASSIOUNI: It depends on the type of conflict. I think that in this respect, world public opinion is probably way ahead of the position of governments. World public opinion naturally reflects an instinct of justice that ordinary people believe in. Anybody, you and I, who feel that we have been victimized by a crime, we want justice as human beings. And certainly, in a society that's been raked by civil strife, by different types of war, where terrible crimes have been committed want justice. We're not speaking of a situation where harm occurs, if you will, as an expected consequence of conflict. We're not speaking of a situation where combatants fight according to the rules of warfare and kill each other. We're speaking of massive killings of civilians, of systematic rape of women, of destruction of private property, of looting, of torturing, we're speaking of the types of crimes which no one who has any sense of humanity will want to see go and benefit from impunity. Now governments are still playing the game of "real politik" and they want a settlement and particularly in the United States, you know, we want a quick fix for everything. We want to go in and get out, you know, we don't want to risk any causalities, we don't want to risk anything and so we're willing to barter anything—everything is for sale or for trade, and the thing that usually sells best is justice. You sit in with a tyrant or a dictator or a General who has committed all these crimes and you want to make a political settlement, you trade off with impunity. You send them off in exile with a golden parachute and call them an honorable General, and allow them to keep the money they've stolen. It's unfortunately that type of "real politik" that governments still exercise which is completely out of sync with the values of ordinary people.

BASSIOUNI: We're undoubtedly living in a world that is inter-related—in a world in which justice is truly indivisible—and we can't really turn a blind eye to crimes committed, whether it's in Rwanda or Yugoslavia or Cambodia, just because they're far away in distant lands and distant people. Really what affects one group of people in one part of the world effects all of us. Not only in a humanistic sense, but even in a policy sense, in a political sense, in an economic sense. We live in a very interdependent world and so it behooves us in the United States to take leadership in the direction of justice to have our government follow the high moral road. There might be a price to pay obviously, whether it's economic or a human price, but leadership is never easy to obtain. And we've paid a very high price for 50 years during the cold war, economically and in human lives, and yet we have never really invested in peace and justice and now is the time for us to invest in peace and justice on a sustainable basis that will give us greater opportunity for peace in the future than all of the nuclear weapons and weapons that we have accumulated in the past.

DAVIDSON: Cherif Bassiouni has been my guest on Common Ground. He's President of the International Human Rights Law Institute at DePaul University where he teaches law. He was also Chair of a United Nations Committee of experts who were investigating crimes committed during the war in the former Yugoslavia. For Common Ground, I'm Mary Gray Davidson.

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