COMMON GROUND
 

Air Date: May 16, 2000


Program 0020

The Architects of Justice

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

© 2000 by The Stanley Foundation

CHERIF BASSIOUNI: If a justice system gets started and somebody gets picked up for stealing a bicycle—and you really want to prosecute or prevent the theft of bicycles or the theft of cars—and the person comes and says, “My god, my neighbor was responsible for killing a hundred people and he's walking free. And you're trying to catch up with me and prosecute me for stealing a bicycle?”

KEITH PORTER:
This week on Common Ground, a new international effort aims to improve post-conflict justice

MARK ELLIS:
We expect to be quite prepared for the unfortunate but oftentimes [there is an] inevitable situation where a country finds itself in this type of severe conflict.

KRISTIN MCHUGH:
Common Ground is a program on world affairs and the people who shape events. It's produced by the Stanley Foundation. I'm Kristin McHugh.

PORTER:
And I'm Keith Porter. At the end of a war countries often find that their justice systems have been destroyed. The police, the courts, the prisons, and the other elements of law and order, have either been physically destroyed or they have lost all credibility with the people. Yet in postwar confusion a working judicial system is vital for two reasons. First, to protect the safety and security of the population; and second, to begin the process of collecting evidence and prosecuting alleged war criminals. Holding war criminals accountable for their actions is seen by experts as a major step toward healing and reconciliation for any
country that is emerging from a violent conflict. Until now, there has been no international mechanism for bringing together all of the right people to coordinate this
rebuilding of justice systems after a war. Today we'll hear about a new effort to fill this void. A number of legal experts from around the world are creating an
International Legal Assistance Consortium known by its acronym as ILAC. Even before a war ends ILAC would begin organizing efforts to provide judicial
rehabilitation and post-conflict accountability. We first hear from one of the leading organizers of ILAC, Mark Ellis. Ellis is executive director of the Central and East European Law Initiative at the American Bar Association. He explains why ILAC is needed.

MARK ELLIS:
I think the fact that it is kind of a rapid response mechanism—moving into this type of environment and giving the framework, giving the guidelines for organizations that make up ILAC, and others as well, to use as a framework to begin and provide technical legal assistance so that there's not time wasted, there's not duplication, and that there's a firmer, more in-depth understanding of the situation on ground. And that is so often lacking in these types of situations. And much time and effort and money is wasted because of the absence of this type of mechanism. And it's rather simple, I think, to provide it. It's rapid response and it's focusing on the legal infrastructure of a country, including accountability issues. And all absolutely fundamental if we're going to obtain the peaceful resolution and sustainable peace in a particular country. Absolutely fundamental.

PORTER:
Cherif Bassiouni is also with us here. He's from DePaul University. He played a leading role in investigating war crimes in the former Yugoslavia and he's a key player in the creation of the International Criminal Court. Professor Bassiouni, you just heard Mark Ellis use the word “rapid response.” And that really brings to mind a couple of questions I have for you, because you've really played a significant role in starting this possible organization. And I'm wondering if you envision ILAC, the International Legal Assistance Consortium, as a unit which will be well trained but sitting on a shelf and waiting to be called upon in a post-conflict situation, or do you envision ILAC as an active, living, breathing entity with ongoing work?

Cherif Bassiouni:
I think it's an active organization that I hope will start by creating a historical memory, by looking back to the 251 conflicts that have occurred since World War II, seeing how we dealt with them. What did we do in the area of restoration of justice? What did we do in the area of accountability? What was our experience with justice issues in these conflicts? And then based on that institutional experience and memory which does not exist, to start accumulating some technical knowledge of looking at experiences that have taken place. For example, when I chaired the commission of experts in the former Yugoslavia we were the first to do mass grave exhumations. But we didn't know how to go about it. So we had to develop a protocol. And we were doing it completely new.
Well, I found out subsequently that when the Tribunal for the former Yugoslavia was established, and Rwanda, they started searching for protocols on how to do it. Well, fortunately they used the same organization we did, which is Physicians For Human Rights. Using the same protocol they were able to follow through with the same mass grave exhumations. But I found out that the protocol we followed in interviewing rape victims in the former Yugoslavia was not used in subsequent investigations either in the former Yugoslavia, or in Rwanda, or elsewhere. There again we can—ILAC can build a reservoir of that type of legal expertise and come up with models so that if their national governments, international organizations, want to do something ILAC can say “Here is what you have to do. Here is how you preserve, for example, the chain of evidence. Here's how you take a witness's testimony. Here is how you interview a witness so that you can preserve the integrity of that testimony for whatever purpose comes later.”

Then comes the next stage, the stage of assessment. A government or an international organization—could be the UN, Council of Europe, OSCE, says “We have a situation—for example Kosovo.” And Kosovo you have a situation where 800,000 people became refugees in a short period of time. And everybody was scurrying around to see what can be done. Well, you need to have a body that has the expertise to say, “This is the blueprint.” If I have to deal with two thousand people to be interviewed, this is the type of task force I need to do it. If I need to deal with 800,000 people in five different countries and I need a thousand people to go in within a week, this is what I have to do. And it's that type of reservoir of experience that will be built and will be ready to be used, on an assessment basis by international organizations and governments.

Now these international organizations and governments can take the assessment and apply it. They can turn around and contract with others to do it. They can ask ILAC to monitor and supervise. Or they can even ask ILAC to take a portion of it and carry it through. So the phase after the assessment phase and the technical expertise phase will largely depend on what the various competent international and national bodies will want ILAC to do. But ILAC does not want to be in competition with other organizations that deliver these services. But it is willing and able to do so if asked.

PORTER:
Mark Ellis, what Professor Bassiouni has just talked about, the way I understand it at least, falls under this heading of accountability. What's this flip side, this other area that we call judicial development? Is that the…?

ELLIS:
Yeah, I mean, they're, they do interact, intersect. I don't think one is more important than the other. We've always felt, all of us who have worked on this project, have felt that it's important to focus both on what we refer to as the judicial/legal restructuring peace and the accountability issue. That you really can't have one without the other in the sense of building a, restructuring the legal system when you are not able to provide any mechanism to bring to justice those responsible for violating international humanitarian law, to me is an empty, is an empty cause. As we focus on restructuring the legal system, as we talked about a few minutes ago, we'll go side by side with our focus on the accountability issue in assisting this nation-state to deal with accountability.

PORTER:
So the accountability side is sort of looking back at what happened during the conflict situation, and the development side is looking forward to restoring the legal system on the ground into the future?

ELLIS:
Well, it's both; both units are there to assist this state in dealing with both restructuring in the judicial system and the accountability issues. That both of it is necessary to move forward. And you don't move forward without dealing with both of those issues.

PAUL WILLIAMS:
If I could follow up on that briefly I think they're highly intertwined. And if we could use Bosnia as an example.

PORTER:
Also joining us is Law Professor Paul Williams.

WILLIAMS:
There is an International Criminal Tribunal for the former Yugoslavia. It functions fairly effectively. They have indicted publicly seventy-nine suspected war criminals and a handful of ones which they've indicted but not publicly. Credible estimates from all three parties to the conflict in Bosnia estimate that there are anywhere between eight thousand and twelve thousand potential war criminals. These individuals need to be vetted from the existing system. In many instances they hold positions of power. Local mayors, chiefs of police forces, things like that. The Yugoslav tribunal does not have the capacity or the mandate to prosecute eight thousand suspected war criminals. But you need a strong domestic judicial process, which includes a judiciary, a strong bar, a strong police force, strong ministry of interior, to be able to continue the process of accountability. If you don't have that you will have these individuals who will retain power who will continue to pursue their nationalist aims which gave rise to their war crimes, partition Bosnia, instability in the region. And this is how it all wraps into the larger question of promoting peace in conflict, at least for now, in the Balkans. And in East Timor it's going to be a similar situation.

ELLIS:
I think Professor Bassiouni has mentioned at times about the necessity of dealing with these issues, the accountability issues. And if you don't they fester. They stay there. They never disappear. And they interfere with everything that is being attempted to bring reconciliation to a state after a conflict.

Bassiouni:
And it also makes it more difficult—as both Mark and Paul indicated—makes it more difficult for a justice system to get started. Because if a justice system gets started and somebody gets picked up for stealing a bicycle—and you really want to prosecute, or prevent the theft of bicycles, or the theft of cars—and the person comes and says, “My god, my neighbor was responsible for killing a hundred people and he's walking free. And you're trying to catch up with me and prosecute me for stealing a bicycle?” So that's where you see the credibility of a post-conflict justice system depends very much on the ability of that new justice system to also deal with criminality that occurred during the conflict.

MCHUGH:
Coming up, more on the International Legal Assistance Consortium.
The purpose of ILAC is to facilitate and assist domestic and international efforts to improve the efficiency and credibility of legal institutions and the ability to implement accountability mechanisms.

MCHUGH:
Printed transcripts and audio cassettes of this program are available. Listen at the end of the broadcast for details. Or visit our Web site at commongroundradio.org. Common Ground is a service of the Stanley Foundation, a nonprofit, nonpartisan organization that conducts a wide range of programs designed to provoke thought and encourage dialogue on world affairs.

PORTER:
I have a couple of final questions for you and they're really operational questions. And I'll start with Professor Bassiouni, because I think he has some experience in this area. I'm interested to find out how ILAC, this International Legal Assistance Consortium, will interface with all the other organizations in the world, starting with the United Nations, regional security organizations like NATO, the International Criminal Court when it is born, the existing ad hoc tribunals, nation states; how will ILAC interface with those other organizations.

BASSIOUNI:
I think in my vision—and this of course has to be settled—ILAC is a provider of legal technical services.

PORTER:
Again, this is Professor Cherif Bassiouni, from DePaul University.

BASSIOUNI:
It has a range of services which we have discussed here, and maybe others. As it establishes itself and its credibility these services will be available. They will be available to various UN bodies, to other international organizations, NATO, OSCE, Council of Europe. They'll be available to governments, whether it's the government of the United States or any other government. And so it will really depend on who would like to use these services. It is quite possible that ILAC may even get enough support as a not-for-profit organization to be able to engage in some of that work on its own without having being contracted for to do so. Provided that it has enough foundation resource behind it. So that it may go into an area—call it East Timor, call it the Great Lakes of Africa, Burundi—wherever, where there is nobody interested in using ILAC's services or even interested in looking at prior issues of accountability, or future issues. I think a very good example is the situation in Ethiopia, where trials have been set up since the fall of the Mengistu regime and the whole Western world is totally disinterested. And I think it's another one of those manifestations of total neglect because it's an Africa country that has no strategic use. Well, ILAC can, if it has independent resources, go in and assist the Ethiopians in their prosecutions of prior crimes of the sort. So I think it will largely depend on the ability of the organization to get on its feet, have credible organizations and people, have expertise, have the resources, do the background research, and show that it is deserving of international confidence.

PORTER:
Mark Ellis, how does ILAC get triggered? What happens in the world that makes, that launches ILAC into action in a given post-conflict situation?

ELLIS:
ILAC will be expected to almost foresee some of the problems that are on the horizon. Because they'll have a permanent staff with research capacity and they'll be projecting what some of these conflicts might be.

PORTER:
This again is Mark Ellis, from the American Bar Association.

ELLIS:
And so we expect to be quite prepared for the unfortunate but oftentimes inevitable situation where a country finds itself in this type of severe conflict. Now exactly what triggers it, they'll be options on what triggers the actual move on ILAC. It could be based on a request from a particular nation state like the United States, perhaps through the Department of State, for ILAC to move in and provide this, begin this assessment, for instance, that we talked about earlier. It could be an arrangement that we might have with the United Nations. It could be an arrangement we may have with any other type of entity to begin the process. It may even be moving on our own, depending on the resources that we have. So they'll be some flexibility in how it's triggered.

PORTER:
For a broader perspective on how this International Legal Assistance Consortium is perceived by the rest of the world I spoke with three international legal experts: Paul Hoddinott , the executive director of the International Bar Association; Mel James of the Law Society in Great Britain; and Christian Oland of the Swedish Bar Association.

CHRISTIAN OLAND:
My experience in Bosnia indicates clearly that there is a vacuum concerning this kind of organization. I think it's an excellent proposal and
an excellent idea.

PORTER:
Paul Hoddinott?

PAUL HODDINOTT:
Yes, the International Bar Association and our members certainly see a need for this. I think there's a sense that in the aftermath of these
conflicts reestablishing the rule of law and the administration of justice is one aspect that hasn't really gone well. And perhaps the international legal community can assist to do better in that field in the future.

PORTER:
And Mel James, from the Law Society.

MEL JAMES:
I agree with Paul's point about the need for help in reestablishing legal and judicial systems. I think that could also come in very useful in
coordinating those efforts, bringing in a broad range of organizations and experts who can do the job quickly and efficiently.

PORTER:
Christian Oland, how might an organization like yours, the Swedish Bar Association, work with the International Legal Assistance Consortium? How do you see those two operations working together?

OLAND:
Well, I think it's very important for the legitimacy of an organization like ILAC to have a broad international basis. And to have a roster of international experts that they can draw from. And so that's one way that our organization could come in. We could provide experts, we could provide advice on various conflict.

HODDINOTT:
I very much agree that point of legitimacy. I think that's very important indeed. And the other thing that is, I think an organization like the
International Bar Association can provide, is people from all sorts of different cultures and so on, so that very relevant people are there, put in there on the ground from the international legal community, to do the job that needs to be done.

JAMES:
I think there are a whole load of the problems that ILAC will face when it becomes operational, that members, solicitors who are members of the Law Society of England will have good practical experience that could help. Also, on the international human rights field, where developing our work in training, practical
aspects of training with international human rights, perhaps some of the materials and programs we're drawing up there would also be of use to ILAC.

PORTER:
There's this difference over whether or not ILAC should be doing what they call accountability issues, or whether or not they should be doing judicial
development issues, or whether they should be doing both of those things. Is one of those more important than the other in your mind?

HODDINOTT:
I don't think it's a question of importance. It's a question of how readily various NGOs are prepared to get involved in the accountability side. The
judicial reconstruction, I think everybody has no difficulty in agreeing to that. But when you get into the accountability issues you start to stray into the area of politics.
Now in my organization, for example, our constitution expressly forbids us to tread into areas which are political in nature. And very often this is so if you have an
international organization as we do with members in 183 countries, that you tread into areas of politics at your peril. And you quickly start losing members if you're
not careful. So we, that I think is the dilemma for those who are going to get involved in ILAC. And indeed for us.


OLAND:
It's very important that accountability taken into account early on. For example, if you look at Bosnia, the fact that the main war criminals, Karadic and Ladic, haven't been apprehended, haven't been arrested yet, is a major setback to the peace process.

JAMES:
Obviously ILAC will be working in some very difficult and some very sensitive situations. And while it must maintain its independence and impartiality, it
still does need to keep in mind that there are international as well as regional principles of human rights that all of us, including the governments concerned, are
supposed to support and see implemented.

PORTER:
Does it bother anyone that this is sort of an American-driven initiative? That there seem to be a lot of Americans organizing this ILAC, and involved in
driving it? Is that a problem or not?

OLAND:
For the legitimacy of ILAC it requires an international identity. I think that's important for the way it will be able to carry out its assignments in different
countries.

PORTER:
Paul?

HODDINOTT:
Yes, that's very important indeed. I mean there are some disputes that go on in the world where by the time they come to an end the United States
will be perceived by the parties who [have] been taking part in the war to have supported one side or the other. And so if ILAC came in and was seen as an
American organization it simply wouldn't under those circumstances be acceptable on the ground. By making it a coalition of nongovernmental organizations
internationally we get around that problem.

JAMES:
I agree completely. And not just internationally but bringing in the considerable expertise of lawyers and human rights organizations that exist within the
region of the conflict, that we build up local, regional support systems to put solutions in place.

PORTER:
For the final word we turn again to the driving force behind the International Legal Assistance Consortium, Mark Ellis. Ellis has been working on a
mission statement for ILAC.

ELLIS:
And that mission statement reads now that the purpose of ILAC is to facilitate and assist domestic and international efforts to improve the efficiency and credibility of legal institutions and the ability to implement accountability mechanisms. Focusing on situations of conflict or transition by providing objective assessments and recommendations, by serving as a source of information about organizations, experts, documents, and analyses, and by undertaking other activities related to this mission. And that is in short what the, what ILAC's mission is. And then building on that is the creation of the structure of ILAC and the, kind of the, all the points and provisions that make this mission work.

PORTER:
Are you encouraged by the progress?

ELLIS:
Yes. It's always fascinating for me to be part of trying to create something new, that's for one. And second, to do so in a way of being very inclusive of
organizations and individuals. As anybody out there that has done that knows how difficult that can be. And when we're trying to do it with the inclusion of international organizations from as far away as Sweden and London, to including government representatives, everyone having a different view. And the idea of being able to come together and wrestle with these points and in the end come out with a final product, is very, very exciting. And we're certainly on path for achieving that.

PORTER:
What in your background or in your professional career led you to this idea? Where did this, the germ of the idea come from?

ELLIS:
Well, I think it's just part of my sense that when you are involved with any topic, with any issue, whether it's what I do in international law or what anybody
would do in any of his or her profession, when you see that there's a void or there's a gap, where there's a need for something that would better the situation, then you try to, you wrestle with that. You try to tackle that. You try to work on what, how to fill that gap. But I have to add, most importantly, as everybody will know you can't do it alone. And this is a collaborative effort with many, many different peoples and groups, and that's what makes it exciting. And makes it possible.

PORTER:
That is Mark Ellis, executive director of the Central and East European Law Initiative at the American Bar Association. We also heard from Cherif
Bassiouni, professor of law at DePaul University and president of the International Human Rights Law Institute; Paul Williams—he's professor of law at American
University; Christian Oland, chairman of the Human Rights Committee at the Swedish Bar Association; Mel James, international policy executive for Human Rights at the Law Society; and Paul Hoddinott, executive director of the International Bar Association. For Common Ground, I'm Keith Porter.

MCHUGH:
And I'm Kristin McHugh. Cassettes and transcripts of this program are available. The transcripts are free; cassettes cost $5.00. To place an order or to share your thoughts about the program, write to us at: The Stanley Foundation, 209 Iowa Avenue, Muscatine, Iowa 52761. Please refer to Program Number 0020. That's Program Number 0020. To order by credit card you can call us at 319-264-1500. That's 319-264-1500.

PORTER:
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MCHUGH:
B.J. Liederman created our theme music. Common Ground is produced and funded by the Stanley Foundation.

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