Air Date: March 17, 1998 Program 9811

THE POWERS OF THE COURT

Guests:
Cherif Bassiouni, Vice-Chairman,
United Nations General Assembly Preparatory Committee on the International Criminal Court
Ann Jordan, legal consultant, Women's Caucus for Gender Justice in the International Criminal Court
Theodor Meron, Professor of law, New York University
William Pace, Convener, NGO Coalition for an International Criminal Court
David Scheffer, Ambassador-at-Large for War Crimes Issues, United States of America

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

THEODOR MERON: We have seen that since the beginning of the atrocities in Yugoslavia and Rwanda there has been created, we've evidenced the creation of a new powerful coalition which is extremely sensitive to the need to criminalize violations of human rights and humanitarian law.

KEITH PORTER: The nations of the world are putting together an international criminal court. Today on Common Ground, we'll hear from some of the international leaders involved in the court's creation.

DAVID SCHEFFER: It's very important not to regard the international court as the court of first resort for prosecuting these crimes. But rather as an instrument to first impose the discipline on national court systems to do the job they're supposed to be doing and which, in any many cases, they have not been doing.

PORTER: Common Ground is a program on world affairs and the people who shape events. It's produced by the Stanley Foundation. I'm Keith Porter.When the United Nations was born a number of mechanisms were created to foster international peace and resolve conflicts. Among them was the International Court of Justice, also known as the World Court, to settle disputes among nations. But no court was created to investigate or prosecute individual people who might be guilty of breaking international law by committing war crimes, crimes against humanity, or genocide.

THEODORE MERON: For one, we expected that genocide and systematic massive atrocities such as those committed during the Second World War, are a matter of the past.

PORTER: This is Theodore Meron, law professor at New York University.

MERON: We were looking to a new future with a United Nations and a powerful system of human rights, Universal Declaration of Human Rights. So we did not think that this was quite essential or necessary. Secondly, it was, after awhile, it was not even possible because we entered that long period of Cold War where it was quite impossible to reach political consensus which would enable the creation of a standing international criminal court. Now, we live now in a completely different political environment. First of all, we have a much higher degree of cooperation among the big powers, amongst the five permanent members of the Security Council. And this is essential. Timing here is essential. We have seen that since the beginning of the atrocities in Yugoslavia and Rwanda there has been created, we've evidenced the creation of a new powerful coalition which is extremely sensitive to the need to criminalize violations of human rights and humanitarian law. This coalition consists of NGOs and public opinion and media and quite a few governments that supported these developments. So this very rapid, indeed radical movement towards the creation of an international criminal court could not have been created without this new emerging consensus. Without the sensitization of public opinion. We know operate in a different environment and we should take advantage of this situation. It's a window of opportunity and we must very, very work work very, very hard in order to have a criminal court, an effective apolitical, objective, neutral, criminal, professional court in place very soon, before the end of this century.

PORTER: In more recent times, the United Nations has created temporary criminal courts to handle cases originating in Rwanda and the former Yugoslavia. The tribunals are providing important lessons for the architects of the new permanent international criminal court.

CHERIF BASSIOUNI: I think it's important to realize that both of these tribunals have demonstrated a great deal of integrity, impartiality, in the way they've proceeded. The prosecutors have not abused their authority. They have acted in a very professional way. So have the judges. And therefore it tells us something about the possibility of having a system of international criminal justice that has impartiality, integrity and professionalism.

PORTER: Cherif Bassiouni played a key role in war crimes investigations in the former Yugoslavia. He is now Vice-Chairman of the Official Preparatory Committee working on the court's creation.

BASSIOUNI: On the other side of the coin, however, it is demonstrated how damaging it is for an institution of international criminal justice to be subject to the UN bureaucratic rules and administrative rules because these rules are established for different purposes. They are established with the experience of organizing conferences and meetings.. They are not established with the understanding and exigencies of how fast you need to move if you have to interview witnesses, protect witnesses, obtain evidence, carry out forensic activities, digging out mass graves, and things of the sort. So what we need to learn from that is that a permanent international criminal court should be free from the bureaucratic rules and the financial restrictions that the United Nations has and which now it imposes on these two tribunals with a great deal of deleterious effects on how effective these tribunals are.

MERON: Basically we have learned that international investigation and prosecution of serious violations of international and humanitarian law is both feasible and credible.

PORTER: Again, this is Theodor Meron, from New York University.

MERON: The fact that these two tribunals, the one at the Hague and the one in Arusha, are functioning despite all the budgetary, political, administrative difficulties that we have encountered. It's very, very encouraging. Both tribunals have tremendously contributed to the clarification and the development of international humanitarian law. Especially they have given much more precise content to the concept of crimes against humanity. They helped criminalized internal atrocities, which is something very, very new in international law. They have developed a code of evidence and procedure for the first time since Nuremberg. And in Nuremberg we had a very, sort of, short, inadequate code of civil, of procedure and of evidence. Now in Arusha, in the tribunal dealing with Rwanda, most of the senior indicted persons have been arrested and delivered up to the tribunal. This is very important. At the Hague we no longer face the danger of running out of defendants. We now have more than 20 defendants awaiting trial. They are in custody at the Hague under international pressure, especially of the United States. Croatia has for the delivery up to the court of about ten defendants. We have now defendants awaiting trials belonging to all the different in former Yugoslavia. Of course we are discouraged by the fact that the principal political leaders, Karadzic and Mladic, the military leader, who are really responsible for the policy of genocide, have not been arrested as yet. But they, it is encouraging to know that no longer can they appear in public.. They are forced to hide. And they are probably quite afraid that one day the international community will reach them too and deliver them up to the Hague. These are very, very important developments. And therefore we have created an environment in which permanent standing international criminal tribunal would no longer appear utopian. In addition to all of that, these developments in humanitarian law have given new vigor to the principal of universal jurisdiction under which national states may and indeed should prosecute offenders against international humanitarian law. And we have seen in quite a few countries a new readiness to prosecute violators.

PORTER: A key issue in the negotiations surrounding the court's creation is deciding exactly how cases will come before the court. Will there be an independent prosecutor with broad powers to issue indictments? Will the UN Security Council be able to start certain investigations? More importantly, will the Security Council be able to veto certain court activities? Again, Cherif Bassiouni.

BASSIOUNI: We can't assume a perfect world simply because we don't know what a perfect world should be like when we're dealing with 195 countries of the world, 185 of whom are members of the UN, with many, many conflicts all over the world of different types. At the present we have three tracks for initiation of prosecutions. Track #1 is where the Security Council refers a matter or a situation to be investigated and then eventually prosecuted, if enough evidence is found to constitute probable cause. The second is if a state party to the Convention proceeds to file a complaint along the same lines. And the third, if the prosecutor, based on his or her own investigation or knowledge or information, does so. In all of those cases things start, as in a domestic criminal case, with investigation. The prosecutor investigates, collects evidence. Once that is done the prosecutor makes a decision as to whether or not it meets the standards of probable cause. If it does the prosecutor would then have to go to a chamber of the court and the chamber, consisting of either three or five judges—we're not sure yet—will then have to pass and decide that there is probable cause and then an indictment is issued. So there is a judicial guarantee that the prosecutor will not be abusive and will not bring prosecutions that are not meritorious.

SCHEFFER: I think the best case scenario is the one that is, has been articulated by our government for some time now.

PORTER: This is David Scheffer, the American Ambassador-at-Large for War Crimes Issues.

SCHEFFER: We believe that cases should be brought to the international criminal court by a very highly qualified prosecutor who can competently investigate and prosecute individuals, and that's the important point about this court. It's, we're talking about individuals. Individual people, not governments, that are the object of a prosecutor's investigation and efforts to seek indictments. But we do not believe that the prosecutor should embark on those endeavors unless there has been a referral to the court by either a state party to the treaty or by the Security Council, of an overall situation, an overall conflict or atrocity. At that point if the court then can accept that referral, under the standards set for the court, that there has to be some magnitude to this event, then the prosecutor will have the independence to proceed on investigations and prosecutions. But either through the Security Council or through a state party to the treaty, there will need to be a referral that will then be determined by the judges as either a acceptable referral under the terms of the court's statute, or not. And if it acceptable then the prosecutor should be able to proceed with investigations.

PORTER: The United States is keenly aware of the need for an international court. But the U.S. is also aware of the pitfalls facing the court's creators. Ambassador Scheffer is the Clinton administration's point man on this issue.

SCHEFFER: First and foremost we want to establish an effective international criminal court that can actually deal with atrocities and armed conflicts where there are massive war crimes being committed. It's essential for the international community to have a judicial body that can actually take on issues of accountability for the crimes that are being committed after the Cold War in so many conflict areas throughout the world. And even internally by governments against their own people. We want to make sure that this court deals with crimes of that kind of magnitude. It will be important for purposes of deterring further crimes. And it's important for purposes of helping to actually end conflicts by insuring that people can be investigated and brought to justice as quickly as possible. Secondly, we view the court as one which will impose a discipline on national judicial and military justice systems to do the job that they are actually obligated to do under international law. Which is, to prosecute these crimes at the national level. The international court can serve as important leverage on national governments to get that job done. It's very important not to regard the international court as the court of first resort for prosecuting these crimes. But rather as an instrument to first impose the discipline on national court systems to do the job they're supposed to be doing and which, in any many cases, they have not been doing. Third, our objective in these negotiations must include the adequate protection of key American interests. That's critical. That's essential in everything that we do. It has to be recognized that the United States has unique responsibilities in the world. We are, as Secretary Albright has often said, and as the President has said, the indispensable nation. That's a serious term to us in the government. If we're going to remain indispensable, if we're going to be asking our military to take actions which may involve humanitarian objectives, may involve enforcement of international law when others may not want to enforce international law, if it involves rescuing Americans who are in danger, we have to be certain that our military services can perform those duties and those very important responsibilities—which this country at times uniquely has to fulfill in the world—without being unjustifiably exposed to prosecution before such a court. So it's very important that we get the mix right in this statute. And that we don't create a court which discourages the United States from being the indispensable nation.

PORTER: We're talking in this edition of Common Ground about the creation of an international criminal court. Printed transcripts and audio cassettes of this program are available. Listen at the end of the broadcast for details. Common Ground is a service of the Stanley Foundation, a non-profit, non-partisan organization that conducts a wide a range of programs meant to provoke thought and encourage dialogue on world affairs.

PORTER: In an ideal world, how will cases, how would cases, if you could chose, come before this court? There seem to be so many different ways and disputes about who would be able to refer a case there. What's the ideal world, the ideal solution, here?

WILLIAM PACE: Well, in the ideal world these cases will slowly fall away; and I think we're already moving in that direction in the world community.

PORTER: William Pace is head of a large coalition of nongovernmental organizations working together for the creation of an effective international criminal court.

PACE: This has been the bloodiest, most war-ridden century in all of history. We have created a great deal, a body of international law and human rights law and institutions to address these issues. I think the next century will be more ideal. And I think you will see situations now with the kind of communications that we have that you cannot hide these types of massacres in the future. So, the media will help bring these to the attention of the world community, the General Assembly and the Security Council will have to act on the pressure that's being brought to bear. And the general outrage that this kind of genocide or war crimes or crimes against civilian populations, will not be tolerated. That is what's going to trigger these cases, in laymen's terms, in the future. And that's also what's going, the fact that we have the court, we're going to deter these cases from happening.

PORTER: Bill, you're heading up this coalition of nongovernmental organizations involved in, that have some concern about this international criminal court, about the shape of the court. Tell me what role NGOs can play in a body that will no doubt will ultimately consist of states.

PACE: Well, it's as you say. In international affairs and especially in the development of international law at this point you have three entities. You have the nation-states. You have the international organizations that are bodies created by nation-states. And then you have everyone else, who are Non-Governmental Organizations. And what you're going to have, as you have at almost every other level of society, is the expertise of—whether it's the academic experts or the experts from the humanitarian work or human rights work or the jurists you're going to need all of the elements of society to make this new institution work. So in terms of helping identify situations early warning, verify that crimes may have occurred; that will involve the media, that will involve non-governmental human rights groups or peace groups. If you're going to deal with victims you, I think you'll see that it will be humanitarian organizations and refugee organizations that are going to be able to deal with the consequences of these deadly conflicts more successfully than governments will. So any conflict that we're trying to manage or put an end to the disastrous results of that conflict involves now not only nation-states and international organizations, but almost the majority of groups and personnel working on them are non-governmental groups. Including, incidentally, the religious community.

ANN JORDAN: We are primarily concerned with the traditional, historic lack of any sort of justice for women who have been victims of international and internal armed conflict. Especially today when most internal armed conflict is focused to a large extent on the abuse and the use of women as tools and weapons of war.

PORTER: Ann Jordan is legal consultant to the Women's Caucus for Gender Justice in the International Criminal Court.

JORDAN: Our primary concern is to make sure, one, that the crimes that are committed against women as tools of war are included in the statute, and secondly, to make sure that there are people inside the court who understand the different ways that women are affected by these kinds of crimes. So that we are also there, you know, concerned to have people who are experts on gender violence in the court, in the capacity as judges, in the prosecutor's office and in, throughout the court system. And we are also very concerned because, especially in terms of, say for example the former Yugoslavia, the women who have been victims of these crimes come from communities and they know, where they know their aggressors. And their aggressors also know their families and they're not, in many instances, randomly selected. So the women are very hesitant about coming forward and testifying even if they know who their aggressors are. So we are also very, think it is very important to have a witness and victim protection unit inside the court which would be able to insulate the victims and the witnesses and in fact sometimes and where necessary, the victims or the witnesses families, because they know who the families are, from the kinds of threats and potential violence that could be used to prevent them from testifying. So, for example, keeping their names secret. You know, not releasing their names. Allowing them to testify behind a barrier where you—they can be cross examined but you can't see their faces. So, if we, we feel that if we don't get these sorts of protections then even if we do get the crimes defined, which we have been very successful so far in getting these war crimes included in the statute, then we will not, you know, be very successful we feel in getting prosecutions. And we've seen in Rwanda and Yugoslavia that having women who are involved, or gender experts who are involved and aware of these kinds of issues, we've been able to bring about many more cases where men are being charged with rape.

PORTER: As the treaty document takes shape, are you satisfied that your concerns are being addressed?

JORDAN: Well, they're being addressed. At this point though, so ,much of the document is in brackets. We don't really know where it's going to go between now and Rome. I mean, we know that in March when there's the next Committee meeting to discuss the language, that many of these brackets will be removed. So even though we've been able to get in some instances language in, it's only in brackets and there's other competing language in other brackets. So we really don't know yet. However, the definition that we've been able to get in of war crimes, which includes rape and forced prostitution, sexual slavery, and other kinds of violence against women, and gender violence, that's not in brackets. So we're sure that that will be in. But, yeah, we still, there's a lot of work to do between now and the end of the summer.

PORTER: All of the work toward creating this International Criminal Court is set to culminate in an international treaty conference in Rome this summer. If all goes as planned, the treaty will be approved, the nations of the world will sign on, and the court will be born. I asked Cherif Bassiouni if he thinks the process will really go as planned.

BASSIOUNI: I think so. Here I have spent 3½ years as a member of the Preparatory Committee and Vice-Chairman of the Preparatory Committee, and I, my guess is from sensing the feeling and the mood of all of the delegations, that there is a sort of a momentum and a commitment to make sure that we come out of the diplomatic conference in Rome on July 17th with a treaty open for signature.

PORTER: That is Cherif Bassiouni. He's Vice-Chairman of the United Nations General Assembly Preparatory Committee on the International Criminal Court. Our other guests have been: Ann Jordan, legal consultant for the Women's Caucus for Gender Justice in the International Criminal Court; Theodor Meron, Professor of Law at New York University; William Pace, Convenor of the NGO Coalition for an International Criminal Court; and David Scheffer, U.S. Ambassador-at-Large for War Crimes Issues. For Common Ground, I'm 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, please write to us at: The Stanley Foundation, 216 Sycamore Street, Suite 500, Muscatine, Iowa 52761. Be sure to refer to Program No. 9811. To order by credit card you can call us at 319-264-1500. Transcripts and RealAudio files are available on our Web site. Go to commongroundradio.org. Our e-mail address is commonground@stanleyfdn.org.

Our theme music was created by B.J. Leiderman. Common Ground was produced and funded by the Stanley Foundation.


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