ICC/UN War on Drugs

Program 0116 April 17, 2001

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

MICHAEL POSNER: This court is not about looking at technical violations of arcane statutes. Itís about going after the Foday Sankoy, the Idi Amins, the Pol Pots-people who are murdering thousands of their own people and brutalizing their own societies.

KRISTIN MCHUGH: This week on Common Ground, a progress report on the International Criminal Court. And UN efforts to fight drugs.

VINCENT MCCLEAN: The best thing for many people concerned in taking action to counter drug abuse would be to reach the stage where we are indeed out of a job and where weíre not faced with the dreadful consequences of drug trafficking and drug abuse.

KEITH PORTER: Common Ground is a program on world affairs and the people who shape events. Itís produced by the Stanley Foundation. Iím Keith Porter.

MCHUGH: And Kristin McHugh. During his final days in office former US President Bill Clinton carried out a number of controversial actions. One was adding the signature of the United States to the treaty creating a permanent international criminal court.

PORTER: This new court would prosecute people accused of war crimes, genocide, and crimes against humanity. Even with the US signature the International Criminal Court is still a long way from becoming a reality. For a report on the courtís progress, I sat down with two experts from the Lawyers Committee for Human Rights in their New York headquarters. Lawyers Committee Executive Director Mike Posner says the court is long overdue.

MICHAEL POSNER: Names like Adolph Hitler and Joseph Stalin remind us of what can go wrong. And in a world where thereís no personal responsibility these things are going to continue to happen. So we got a taste of it at Nuremberg. But then it took us 50 years to come back and say, "We shouldnít just do it once. We should have a permanent system that basically makes violators know that theyíre gonna be held responsible."

PORTER: Bruce Broomhall is also joining us here from the Lawyers Committee For Human Rights. Bruce, Mike Posner just mentioned Nuremberg. And I think that people think of Nuremberg, the International Criminal Tribunal for Yugoslavia, and even the things that surrounded the Pan Am 103 trial as being examples of criminal trials that are handled on an international level. If we have all those examples why do we need an international criminal court to replace those kinds of tribunals?

BRUCE BROOMHALL: Well, I suppose because we only have those examples, is one answer. After the Nuremberg trials you had 50 years essentially where there were no international trials for these kinds of gross violations of human rights. So it was only really with the end of the Cold War and the outbreak of the civil war in Yugoslavia that people said, "Yeah, weíve got to do something about this and weíve got the opportunity to do something." And they turned their attention not just to the ICTY-the Yugoslav tribunal-but also to establishing a permanent court thatíll be there whenever the international community wants to refer a case to it.

PORTER: Bruce, weíre sort of on the brink now of creating this international criminal court. What kind of crimes would this international criminal court have jurisdiction over if and when itís created?

BROOMHALL: Well, just the basics. You mentioned the Pan Am 103 trial. Thatís a terrorism trial. Thatís something the international criminal court will not have jurisdiction over. There was talk, even back in 1989 when the idea of the ICC first started reemerging, about giving it jurisdiction over major international drug trafficking crimes. Thatís not on the agenda either. People might look at it again in the future. What weíre talking about here is the core crimes of international criminal law: genocide, first of all; crimes against humanity, which is mass violence against civilian populations, basically; and war crimes. Once the ICC is set up, though, which could be two years from now, those basic three crimes will be ready for action.

PORTER: Mike Posner, where are we in this process? How close are we to actually having an international criminal court?

POSNER: Well, as Bruce mentioned a moment ago, weíre moving down the road fairly quickly. Since July of Ď98 when the Rome statute was adopted, almost half of the countries that need to ratify the treaty have done so. Now, 28 out of what we need, is 60. So we are now at a point where weíre looking at two or three years from now having an international criminal court up and running. Thereís almost 140 countries-139-that have signed the statute. So that means thereís plenty that are now in the process of moving towards ratification. And I think realistically two, three years at the outset, itís going to be up and running.

PORTER: July of 1998 there was an international meeting held in Rome that basically hammered out this international criminal court treaty. There was a vote taken at the end of that session to approve or disapprove the treaty. And the United States voted against it. Mike, why did the United States vote against that treaty in Rome?

POSNER: It was a very disappointing thing to people like myself, who see the US as a historic leader in this area. Again, the US played such an important role at Nuremberg in setting things up and building this concept. But when it got to the negotiation on the treaty the US went from an advocate for human rights to a very defensive posture, saying, "We donít want any treaty that has any implications for our own actions." And so there was a sense that unless the treaty more or less gave an ironclad exemption to US soldiers, US citizens, the US didnít want to participate. And unfortunately that led them to take a "no" vote on the final treaty.

PORTER: Bruce, then on New Yearís Eve, President Clinton, one of his final acts before leaving the White House, was to add the signature of the United States to the ICC treaty document. What made him change his mind? Why did he do that?

BROOMHALL: I think youíd have to ask President Clinton that one for the definitive answer. I think a lot had changed between July 1998 and December 2000. The war crimes ambassador, Ambassador David Sheppard, who led the negotiations for the US at Rome and then later at the UN in New York, really I think accomplished a lot from the point of view of meeting some of the US concerns about dangers in the statute. They, for example, they saw a danger that so-called rogue states would pick and choose cases against their enemy and bring them to the court. And through the negotiations of the United Nations that danger, which rested on an ambiguity in the wording of the Rome statute, was resolved. And at the same time questions about the definitions of the crimes were overcome. There were concerns that, for example, Israel had about the definition of one of the war crimes, and their concerns were resolved through the negotiations of the UN. Military lawyers that worked on the US delegation basically had a year and a half to write the fine print of the Rome statute. It just shows the, very clearly the limited circumstances in which the court was going to operate. And I think, you know, it looks like those efforts raised the confidence level in Washington enough that they could sign. Now we know that doesnít mean theyíre gonna ratify anytime soon. But they definitely accomplished some of their aims.

PORTER: I want to recap for our audience what Mike said a minute ago about the number of countries. There are 139 countries that have actually signed the document, and 28 of those, then, have ratified it. We need to get to 60. And when we get to 60 the court will then come into existence. This is correct?

POSNER: Correct.

PORTER: If it comes into existence without the United States as a member state of the international criminal court, what are the dangers for this court? I mean, can it survive without membership from the United States.

POSNER: Well, I think over the long haul itís clearly helpful to the ICC to have US support, either directly or indirectly, in the process. The US has played a very constructive role, for example, with the tribunals for Yugoslavia and Rwanda in both providing prosecutors seconded from the Justice Department, technical support to investigations, as well as the kind of political support that the US can bring as a leading country in the world. I think those things are gonna be needed for the ICC. My hope would be that over a period of, say, the next five to ten years the US will find informal ways to be supportive of the ICC in the places where itís clearly doing things that the US sees as being useful. And, at the same time, take a wait-and-see approach in terms of its own decision to ratify it.

PORTER: There are those in the United States who are concerned that the international criminal court would circumvent rights that they have as American citizens. That it might violate the rights that theyíre granted under the Bill of Rights that they not be judged by a jury of their peers, that they might be subject to double jeopardy even-all kind of things that people, in some quarters at least, seem to whip up some fears. Whatís your response to that?

POSNER: My response is that those fears are unjustified and much exaggerated. The premise of the international criminal court is that its jurisdiction is complementary to national courts. And where you have a national legal system, military justice system, that is functional and willing to investigate and prosecute violations, then the ICC basically allows that process and gives deference. The United States has a very sophisticated military justice system and, in my judgment, that system will work in the cases where there need to be attention. But I think realistically this court is not about looking at technical violations of arcane statutes. Itís about going after the Foday Sankoy, the Idi Amins, the Pol Pots-people who are murdering thousands of their own people and brutalizing their own societies. Thereís plenty of business for an international criminal court going after the worst-case violators, that I think the notion that theyíre gonna somehow be going after an American pilot who is, you know, involved in humanitarian intervention, is just ludicrous It defies practical sense in reality.

BROOMHALL: If you sit down and look at the Rome statute it reads like a wish list of due process protections, a lot of which reflect American law. And a lot of which reflect the positions of American negotiators at Rome. Leading American attorneys have gone through the Rome statute and make the argument that itís completely compatible-it, in fact, exceeds US constitutional protections in some areas. So I think thereís a lot of mischief makers out there who want to find arguments against the Rome statute. I donít think thatís a good one.

PORTER: Every time I have this conversation with people I ask these questions about whether or not American servicemen might be brought to the Hague to stand trial before the international criminal court, and the response I get back is about all of the limits that have been placed on the court. And I sort of come to the question then, well, what will those courts do? I mean, are there so many limits that no one will ever be brought before this court? Is this court going to be effective if and when itís created?

POSNER: I think that there are more limits in the statute than I would like to see. But at the same time there are also opportunities to overcome those limits. For example, it remains the case that any situation where the Security Council decides that there needs to be a prosecution, they can petition the prosecutor to pursue that. I think thatís gonna happen. I think itís gonna happen increasingly as these situations in the world manifest themselves. And itís clear to the big powers in the world, including the United States, it is in the interest of global security and peace to have prosecutions in places like Sierra Leone and East Timor and the Congo and elsewhere. Weíre gonna see that happen.

PORTER: Who enforces this? If an indictment is issued by the ICC, who enforces that indictment? And if someone is found guilty of a crime, who enforces the punishment or the sanction for that crime?

POSNER: I mean, we are moving slowly-and I agree with you-this is, in fact, the most challenging unmet need in this whole process. But weíre moving in the direction where you are creating, in a sense, an international alliance among rights-respecting states to honor and reinforce the efforts of these international tribunals. You have, in the case of the Yugoslav tribunals, for example, what are now really international arrest warrants, based on an indictment by this international court. And countries of the world using their police services or their militaries are basically being asked to arrest people and transfer them or extradite them in effect, to the Hague for trial. And weíre seeing some of that happening in the former Yugoslavia, where NATO troops or SFOR troops are out there and theyíre picking up people in another place whoíve been indicted by this tribunal in the Hague. And theyíre sending them for trial. Where weíre trying to get to in the world is a place where this international criminal court, this permanent court, is gonna have the same kind of power to indict and create a kind of international arrest process, where countries that are committed to the rule of law and human rights will basically help them.

PORTER: That is Mike Posner, Executive Director of the Lawyers Committee For Human Rights. We also heard from Bruce Broomhall, Senior Coordinator of the Lawyers Committeesí International Justice Program.

MCHUGH: The United Nationsí fight against the global drug trade, next on Common Ground.

VINCENT MCCLEAN: One of the most important things weíve found is to carry out an annual survey to actually measure the amount of opium thatís being grown. And thatís, itís extremely important to have that information. Before you start to tackle the problem you need that sort of information.

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 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: The United Nations is recognized around the world for its peacekeeping operations and humanitarian aid. But you may be surprised to learn the United Nations is an active player in the global fight against illegal drugs and organized crime.

MCHUGH: The Office for Drug Control and Crime Prevention, or ODCCP, is based in Vienna and operates satellite offices in a number of countries. Vincent McClean is the Director of ODCCPís New York office. I recently spoke with him to learn more about his agency and the UNís commitment to end the global drug trade.

VINCENT MCCLEAN: The ODCCP as its major objectives has the promotion of international cooperation to counter illicit drugs and organized crime. Itís a small organization, a small part of the UN-about 200 international staff globally, with headquarters in Vienna and 22 field offices. The annual expenditure runs at around $70 million. So in the global scheme of things itís a small outfit, but we think it does make a valuable contribution to efforts, international efforts, to counter illicit drugs and organized crime.

MCHUGH: How does your office define drug abuse?

MCCLEAN: Essentially the consumption of substances which are proscribed by the international drug control conventions. Those international treaties make certain substances illicit. Weíre talking, the more serious ones, they are cocaine and narcotics, such as heroin. Thereís also a problem in recent years has emerged of so-called synthetic drugs, which do not have a natural plant base and are made up from different chemicals, usually chemicals that have been diverted from legitimate uses.

MCHUGH: The UN defines drug abuse as a global problem. Where are some of the worst areas?

MCCLEAN: It is a global problem. I mean, there are very few countries that are not affected in some ways by it. But the concentration of the problem has changed over the years. If you went back 20, 25 years you would find the major problems, the highest prevalences, in developed countries. Nowadays youíll find the highest abuse prevalences in developing countries. For instance, thereís a serious problem in Iran; thereís a serious problem in Pakistan. Itís no coincidence that both these countries neighbor Afghanistan, which is currently the worldís-by far, by a long way-the worldís largest producer of opium. And opium, of course, is refined into heroin. So itís a major source of the worldís illicit narcotics.

MCHUGH: Why do you think that the trend has shifted from developed countries to underdeveloped or developing countries?

MCCLEAN: I think itís partly shifted because of the fact that developing countries have become richer, they have become better off. Itís certainly a major problem in Thailand, for instance, partly because itís a more attractive for drug traffickers. And itís also the fact that in recent years thereís been a lot of drug demand reduction work in developed countries such as the US, and thereís been a lot of attention given to preventive education and to treatment for people who have a substance abuse problem. And this is, these efforts are starting to have some effect. I think theyíve got a long way to go and we would like to see a lot more attention given to drug demand reduction; for instance effective preventive education. But a start has been made. But itís mainly, unfortunately, in the developed countries.

MCHUGH: In 1998 the General Assembly pledged in a special session to significantly reduce the supply and demand of drugs worldwide by 2008. Is that too ambitious of a goal, or is that attainable?

MCCLEAN: I think itís certainly-itís both. Itís ambitious and itís attainable. I certainly donít feel itís unrealistic. And we have seen that itís possible to make progress; for instance in the States substantial reduction in the consumption of cocaine. And weíve seen substantial reductions in a number of countries of illicit drug crops. There are many success stories. Thailand, for instance, where opium production has come down in the last 15 years by a factor of something like 90 or 95 percent. Itís only grown in tiny pockets in the far north of the country now, and the government takes action against those pockets. In Pakistan weíve seen virtual ending of opium cultivation. In China, which had a massive problem of production and consumption for nearly a century, we saw an end to cultivation and a huge reduction in the number of, in the number of addicts. So I think it is possible to make progress. I think these objectives are attainable. But it requires a sustained effort on the part of governments and on the part of civil society at large.

MCHUGH: The success stories that you just outlined are part of that glimmer of hope that is outlined in the latest World Drug Report?

MCCLEAN: Yes. Indeed.

MCHUGH: The Drug Report actually talked a lot about progress made in Afghanistan. Significant progress in the last couple of years.

MCCLEAN: I think there has been significant progress in a variety of different ways. One of the most important things weíve found is to carry out an annual survey to actually measure the amount of opium thatís being grown. And thatís, itís extremely important to have that information. Before you start to tackle the problem you need that sort of information. So weíve been carrying out that survey. We have been carrying out some small-scale pilot alternative development projects to help farming communities find alternative means of livelihood. And weíve been learning a lot through those projects. For instance, about what the motivations of the farmers who grow opium may be. We have also been working with the countries surrounding Afghanistan. Thereís a group of countries known as the Six Plus Two Group. Itís the six countries neighboring Afghanistan plus the Russian Federation and the USA. And UNDCP has been working with that group on a regional plan of action to address the problem in all its dimensions-trafficking, but also demand.

And for a variety of reasons, some of which we can only speculate at, the Taliban, who controls something like 90 percent of the territory of Afghanistan, last July issued a decree banning opium cultivation. Now, Afghanistan is producing something like two-thirds or three-quarters of the worldís illicit opium. And the reports we have from our people on the ground suggest that that ban is effective, and the international community is beginning to consider what sort of reaction it should make. But this is an extremely significant-if itís confirmed that the ban is effective, itís extremely significant. Does that mean we can rest on our laurels? The international community need not be concerned about this? Of course it doesnít mean that. There are probably still stockpiles of narcotics in the region. There are other producers in the world. Myanmar, or Burma, the second-largest producer in the world-a place we are also working. It may be that there will be price signals sent to producers in Myanmar and producers in Columbia. The price of-if Afghan production ceases, the price of opium is going to go up, the price of heroin is going to go up, and itís going to become a more attractive proposition for other producers. So the international community is going to need to do something about it.

MCHUGH: We were talking a lot about the success stories. Are there areas where there needs to be significant improvement in terms of the global drug trade?

MCCLEAN: Sure. For example, one of the problems associated with the very high production in Afghanistan recently has been that trafficking organizations have presented a very serious challenge to governments. Some of those governments in that region, Central Asia, are very ill-resourced to stand up to that challenge. And the, we have in these trafficking organizations determined groups, often, usually extremely well armed, usually with plenty of finance with which to bribe government officials, and they actually present a threat to governance. Some of these countries are extremely, extremely ill prepared to stand up to that threat. And itís important that those governments find the political will and the resoluteness necessary to stand up to the threat. Itís also important that other countries assist them by providing them with know-how and resources to help them in their fight. Iran, for instance-not one of the countries that I would describe as weak or ill-resourced, but it, Iran has made a very determined stand against traffickers who use Iran as a transit country. And one consequence of this has been that the Iranians have lost hundreds of their security forces in fire fights with trafficking gangs. And these gangs are prepared to take on security forces in, even in a country as well organized and as well resourced as Iran. So what chance do some of the newer former Soviet republics have against these people, unless there is international cooperation and international assistance?

One thing we havenít touched on that perhaps is worth mentioning is the connection between drug abuse and HIV/AIDS. HIV infection is one of the major problems facing the world. No country in the world is immune from it. One of the sad consequences of drug abuse is a spread in HIV infection. Not just through the sharing of needles, but from HIV-infected drug addicts to their partners, through sexual contact, and as a consequence of risky behavior under the influence of drugs, whether theyíre injected drugs or taken some other way. UNDCP is working with governments and with other parts of the UN system to try to limit the effect of HIV/AIDS. Weíre looking out in particular for ways of limiting drug-related infection. But itís a serious problem. Itís an awful human tragedy for people whoíve become HIV positive. And itís a great tragedy for the governments, who are often governments in poor countries who are trying to cope with many different problems and then suddenly find that they have an HIV infection problem on top of everything else, affecting often their most productive, the most productive section of their population.

MCHUGH: Are you hopeful that one day the global drug trade will basically be gone and essentially you will be out of a job?

MCCLEAN: Absolutely. Absolutely. I mean, the best thing for many people concerned in taking action to counter drug abuse would be to reach the stage where we are indeed out of a job and where weíre not faced with the dreadful consequences of drug trafficking and drug abuse.

MCHUGH: Vincent McClean is the Director of the United Nations Office for Drug Control and Crime Prevention in New York. For Common Ground, Iím Kristin McHugh.

PORTER: And Iím Keith Porter. 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 0116. Thatís Program Number 0116. To order by credit card you can call us at 563-264-1500. Thatís 563-264-1500.

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