Well, thank you all for being here.
And a special thanks to Lisa Shields and
Richard Hoss for bringing us all together
today.
Over the past seven years, I've worked
with UNHCR and I've travelled around the
world to try to bring attention to
refugees and internally displaced
persons.
And it's been a remarkable education.
On my last trip to Chad I asked a group
of refugees, what do they need, what are
their concerns.
And one woman said, better access to
water.
Another said, medicine.
Another, better tents.
And this young boy raised his hand and he
said, we need a trial.
And he heard that morning on BBC radio
that the ICC has issued arrest warrants.
And it meant something to him.
He was asking for what any of us would
ask for, having been violated.
Having had many horrific things happen to
his family.
And yet, in my heart, I knew that he may
never see that trial.
That justice often seems like a luxury
for the rich and wealthy nations.
In far too many places I've been, I've
seen refugees return to live among the
same people that attacked them.
Peace is placed before justice, often
instead of justice.
And often at the insistence of the
perpetrator.
And this is happening today with Joseph
Kony in Uganda and with President Bashir
in Sudan.
They are threatening more violence and
delaying or blocking aid if we attempt to
bring them to justice.
And often we listen to them.
We let them dictate what will happen, we
let those who destroy their countries
decide the future for their countries.
Now I believe after finding myself
returning to countries, who after a brief
period of peace are again at war.
That there is no enduring peace without
justice.
I've seen refugees whose rations were cut
nearly in half, and I've seen them
waiting for the aid truck to arrive.
Just to find out that the aid relief was
stolen by the rebels who are still
active.
And I've talked with little kids who had
bruises and they showed them to me and
they said someone came and they gave us
new school supplies.
But the bad guys took them away.
because the bad guys were still there.
And I've sat in a tent with women who
were about to be returned to their
homeland.
Women whose daughters were raped, and
husbands were killed, and many of their
sons also killed or tortured.
And I've heard them ask, how is it safe
to go back?
And I've watched aid workers struggle to
explain that some things have been
signed, some people have shaken hands.
But what they don't say is that aid in
their host country has run out, because
the international community wants to see
returns.
And wants to see progress.
But that really nothing has changed to
ensure their safety, that they are
returning to the same lawlessness that
sent them running in the first place.
And I've seen these same aid workers tear
up when they put these ladies on the
buses, and say, I don't know what we're
sending them back to.
Common sense tells us that when the risks
are weighed, the decisions are made very
differently.
When crimes against humanity are punished
consistently and severely, the killer's
calculus will change.
And when a killer is allowed to walk away
from his crimes.
I believe that also tells him something.
It sends a message to the next that they
need not worry, that they will most
likely not be held accountable for their
actions.
I believe that the existence of trials
alone has the potential to change
behavior.
But ultimately, we need to arrest those
who are indicted.
And the Sudanese arrest of Alec Tushev
appears to be a positive development.
But not if it becomes a bargaining chip
that'll stop others from being brought to
justice.
Without an arrest, we tell the victims of
these atrocities that impunity is the
rule of law.
Now I don't know if the ICC is the
answer.
And I don't know what type of court is or
what it would need to be for all of us to
agree and make it strong enough.
I have no idea.
And after seven years of traveling into
the field I find that I have a lot I need
to learn.
But I do know this.
No mother who had her children killed in
front of you, her.
No young girl sold into slavery.
No boy kidnapped and forced to be a child
soldier.
And no young girl like the three year old
I met in Sierra Leon who had her limbs
cut off should be expected to simply
forget.
No one should have to chose between peace
or justice and that young boy in Darfur
who asked for a trial deserves one.
So thank you very much for letting me
speak[NOISE] and I'll pass this on
to[INAUDIBLE] .
[MUSIC]
>> The philosopher Immanuel Kant once
said, there shall be justice though the
heavens may fall.
But in this day and age, peace
negotiators are often interested in
negotiating away justice.
[SOUND] If it will bring an end to a
crisis.
I am Michael Scharf, and in today's
session we're going to be looking at the
tension between peace and justice.
The objectives that we'll cover, is first
looking at what are the reasons why peace
negotiators are so interested in
bargaining away justice.
Second, we'll look at whether there are
limits to the ability to trade justice
for peace.
Sometimes there is a duty to prosecute.
Sometimes there isn't.
Next we'll be looking at the definition
and contours of those international
crimes that have a duty to prosecute.
Grave breaches of the Geneva Conventions,
genocide, torture and crimes against
humanity.
Let's begin with our simulation.
Now, those of you that have done the
reading, and some of you who have already
gone online with your comments to the
reading.
Know that we have created a fictional
country called Togoland.
This is based loosely on the situation
that happened in Haiti in 1994.
So the facts to summarize, in our
fictional case are these.
First of all, the country is made up of
two ethnic groups: the Heautonomy, which
is the majority, and the Teautnomy, which
is the minority.
The president of the country is a
Teautnomy, from the minority party.
His country's administration has been
accused of all sorts of corruption.
And while the Vice President is out of
the country attending a meeting in
Geneva, the President has a heart attack.
And General Sedrock, who is the chief of
the military, seizes power in a blood
less coup.
Next, over the next few days General
Cedras rounds up the leaders of the old
regime which has been accused of
corruption.
And he has them waterboarded, which you
remember from our last session is a
simulated form of drowning, which many
people believe is torture.
Most of these people then confess,
whether it's true or not, that they were
corrupt, and he has them summarily
executed without sending their cases to
trial.
Meanwhile, the Vice President in Geneva
calls for strikes at the cobalt mines and
for protests.
And people line up at the Togoland
Square, which is sort of like Tiananmen
Square, from history, and the strikes
begin.
And so, the new General, who's in charge
of the country, decides to order his
troops, to make an example.
And 10,000 people who are gathered are
shot upon, 7,000 of them die in 15
minutes.
A couple of days later, the UN imposes an
embargo on the cobalt mines, and freezes
the assets.
And this forces the two parties to the
peace negotiations.
On May 25th, the peace negotiations break
out, and that's the subject of your
simulation.
The, peace negotiator here is Kofi Annan,
the former Secretary General of the
United Nations.
We have General Cederack and we have
Madam Erickson.
And their lawyers have to decide what can
they decide to negotiate with?
What can they bargain for?
What will it take to get General Cedrack
to relinquish power and give it back to
Madame Erickson and the democratically
elected government?
And more importantly, are there legal
problems with some of those suggestions.
So we have looked through all of the
suggestions that you have made online.
And these are some of the ones that have
surfaced.
One option was, and this of course was
the one that was preferred by the General
and his staff, let's have a complete
amnesty.
An amnesty means let's say that there can
be no legal prosecutions, no civil trials
for damages against the General.
And if he is such immunized, he would be
happy to relinquish power under those
situations.
The advantages are that that can stop the
atrocities, it will facilitate the regime
change.
But the disadvantages are that it
breathes contempt for the law and it can
lead to vigilante justice.
The victims' families are not going to be
happy with the fact that the
perpretrators have gotten away with mass
murder.
Now, another wrinkle of this that might
be a fall-back position for the General
is that there could be a truth
commission.
There have been many truth commissions
established around the world, some of the
most famous of which were in El Salvador.
And in South Africa and the advantages of
a truth commison is that they can create
a historic record of what happenned.
They can make reccomendations for change.
And they can also be tied to reparations
which means giving compensation to the
victims.
And also something called lustration.
Which is a word that means keeping the
perpetrators from ever being allowed to
hold official office or be in the
military in the future.
Now, the problems with the Truth
Commission approach are similar to those
of Amnesty.
It's not thought of as a real trial, and
so the evidence is not seen as credible.
The individuals can be named without due
process.
And this could be bad, because if you
were named in the public report of a
Truth Commission, and you haven't had due
process.
You haven't been able to confront your
accusers, you're going to go through the
rest of your life with a stigma.
And worse, you may have a, a virtual
target painted on your back, where the
victim's families are going to try to
take you off.
Just because you've avoided justice.
Now, there have been many exile for peace
deals along these lines in history.
And so the General can point to some of
these, for example, this is the picture
of Raoul Sed Cedras.
Who was the military leader who siezed
power in Haiti in 1994 he ended up
relinquishing power in a deal that sent
him off to Panama.
Were he's living a comfortable life in a
giant hill top residence.
Then you have the case of Charels Taylor
from Liberia who was responsible for many
of the atrocities in neighboring Sierra
Leon.
After he was taken from power, he went to
Nigeria and was given a comfortable
amnesty there for several years.
Untill he started trying to assasinate
other leaders throughout Africa.
And the international tribunal closed the
special court for Sierra Leone that was
created for these attrocities.
Closed the loop on him and ultimately he
was surrendered to the Hegue, where he's
been prosecuted and convicted.
Then there's the case of Saddam Hussein.
Now Saddam Hussein, in the last days just
before the invasion of 2003.
The Bush Administration said, Saddam, if
you and your family will go to
neighboring Bahrain.
We've negotiated a deal where you can go
into retirement, and we won't have to
invade your country.
He turned that down and, and we know how
that ended up.
Not well for him.
There's the case of Idi Amin of Uganda,
who after he fell for power, spent the
rest of his life, three decades, living a
fairly comfortable life in Saudi Arabia.
You have the case of Muammar Gaddafi, in
the summer of 2011 when there were air
strikes against Gaddafi.
The United Kingdom actually brought up
the idea that if Gaddafi would leave
power, the air strikes could stop.
And they could avoid a lot of bloodshed.
Like Saddam Hussein, Gaddafi didn't take
that and it didn't work out so well for
him as well.
Now, the current situation is the case of
Syria and there have been proposals for
Mr.
Asaad, the President of Syria, to go to
Russia.
And have a regime change that is
peaceful.
And so these exile for peace deals are
something have happened frequently.
The other option, the ones that the Vice
president Madame Erickson is going to
want to push for, are prosecution
options.
The first would be a domestic
prosecution, domestic trials.
The strengths of course, are that the
victims can attend the trial, and see
justice done.
It creates local media coverage.
The population is more likely to believe
the judgments of the trial.
And here I can give you an example from
Nuremberg.
As you remember from the last class
session, the Nuremberg trial prosecuted
the Nazis before an international
tribunal.
And there were surveys done of the
population of Germany, where they asked
two questions.
Question one was: Did you believe that
the Nazis were guilty of the crimes for
which they were prosecuted at Nuremburg?
And number two: Did you think they had
got a fair trial?
And overwhelmingly, percentages over 85%,
in each of these surveys for a period of
ten years.
Showed that the German people did not
believe in the Nuremberg judgement.
In fact it was not until the 1960's, when
the German Domestic courts, started to
prosecute the concentration camp
commanders.
That those surveys showed, that the
German people a generation later, finally
saw, that these people were guilty, and
many people conclude.
That the difference was that this was
proven by the Germans' own courts.
Now, the negative aspects of domestic
trials are that there are greater chances
of injustice.
Local courts can be unable to
successfully, or fairly, prosecute
leaders from a former regime.
And so for that reason often there's the
suggestion that there be an international
trial.
Either an ad hoc tribunal or using the
permanent international criminal court.
The advantages of an international court
is that you have experienced judges who
are objective.
You have prosecutors and defense council
that are highly paid by the international
community.
That they have a lot of resources and
they're very experienced.
And there are high standards of due
process.
And these courts are well funded.
The negative aspects are, they take very
long to have these cases.
They're extrememly expensive, sometimes
as much as $100 million just for a single
case.
They're too far removed from the source
of the attrocities, and often the
individuals, as in Rwanda.
The victims didn't feel a connection to
the Rwanda Tribunal which was sitting in
neighboring Tanzania.
And therefore they're not as credible as
home-grown justice.
Now, the next question, even once we see
these options and we figure out what the
two sides may prefer.
Is whether the international community
can support this kind of deal.
And often that question comes down to
whether there is a legal.
Duty to prosecute.
These legal duties come from
international criminal treaties.
And we're going to be talking about some
of them.
The most important probably is the Geneva
Conventions.
This is the treaty that codifies the laws
of war.
They were negotiated in 1949 after the-
Second World War.
And they have a clause called the Grave
Breaches clause, which requires
prosecution of those who commit the worst
kinds of atrocities.
The clause says that.
Those who are guilty of willful killing,
torture or inhumane treatment, including
biological experiments.
Willfully causing great suffering or
serious injury to body or health and
extensive destruction.
And appropriation of property that's not
justified by military necessity, that's
carried out wantinly and unlawfully, have
to be prosecuted.
Now there's a clause here I want to focus
on and that is not justified by military
necessity.
Every time a civilian is killed during a
war, it is not a grave breach.
For example, the laws of war say that you
can have civilian casualties, and it's
not a grave breach or a war crime.
As long as the two requirements of
distinction in targeting and
proportionality, are met.
Proportionality means that if the
civilians die, they're just lawful
collateral damage.
It's not a war crime so long as their
deaths are not disproportionate to the
military objective.
Now, another thing related to this is
that there are certain targets that are
out of bounds.
That you're not allowed to attack during
a war.
For example, you're not allowed to attack
hospitals, religious or cultural
structures, if you attack those it can be
a grave breach of the Geneva Conventions.
Here we have a cartoon of a protected
site.
But there is an exception represented by
this cartoon.
When the enemy uses the structure as a
base of military operations, the target
loses it's protected status and it can be
attacked.
Here's an example in the real world.
This is a map of the Gaza area.
An occupied territory outside of Isreal
that was shooting many many missles into
Isreal.
So, this is a map of where schools are,
where hospitals are, where military bases
are and all the missile sites.
And Israel used this kind of map to
decide where to shoot back.
This is a great illustration, because if
the Israelis would shoot at places that
were too close to schools or mosques.
Or areas that were highly populated, that
would violate the requirements of
distinction and proportionality.
So modern day targeting has to be very
careful about those requirements, or it
can be considered a war crime.
Now the grave breaches provision had
their limits.
For example, they only apply in
international armed conflict.
They don't apply within a country's own
borders during a civil war.
In such a situation, there is a duty to
prosecute only when there's an
international armed conflict.
For civil wars, you have universal
jurisdiction, which we've spoken about
before.
Which means any country can prosecute a
offender if they're on their territory,
if the country wishes.
But they're not obligated to do so, which
opens the door in civil wars.
For these amnesty for peace deals.
Now let's look at another one of these
international treaties that creates a
duty to prosecute.
And this is the U.N Genocide Convention.
It was negotiated and concluded right
after World War two trying to codify the
law against the atrocities committed by
the Nazis.
But as I mess, mentioned in the last
session.
During the Cold War, when this was
negotiatied, Joseph Stalin was commiting
the same kinds of atrocities killing
20,000,000 Russians.
And he was able to insert during the
negotiations, a clause, into this treaty,
that said it only applied to killing of
national, ethnic, racial, or religious
groups.
He purposefully left out killing
political opponents, because that's what
he had been doing.
So genocide, by definition, because of
its negotiating status during the Cold
War has left out the most frequent source
of murders.
During internal strife and that is
killing mass numbers of opposition.
So genocide you have to have the specific
intent to destroy the group it has to be
one of these types of groups.
And you can do that through killing, but
also through sterilization.
Or other ways of basically destroying the
group.
Now, what is genocide?
Let' s look at a couple of case studies
that show you some of the difficulties in
deciding its contours.
before we do so I do want to mention that
like Grave Breaches.
The Genocide Convention requires people
and governments to prosecute Genocide
when the Genocide is in their own
borders.
But for other countries around the world,
there's not a duty to prosecute those who
commit Genocide.
There's universal jurisdiction that
permits them to do so.
So that means that other than the country
where the Genocide occurred.
Other countries are free to enter into
these, again, peace for justice swaps.
Okay.
So our first case study.
Most everybody knows about the story of
Khmer, the Khmer Rouge killing fields.
Where in Cambodia from 1976 to 1979 about
a half the population were murdered, by
Pol Pot.
It was made into a famous movie, The
Killing Fields.
And currently the regime leaders, who
have survived are on trial in Cambodia
for these crimes.
But was it genocide?
Most everybody thinks it is.
But let's look at the facts and see if
they're going to be difficulties in
proving that.
The facts are pretty interesting.
I myself spent my sabbatical working at
the Cambodia Tribunal pouring through the
kind of evidence that I'm going to talk
to you about.
And working on the briefs in these cases.
So this is the story basically Pol Pot
takes over Cambodia.
He had been studying in France, he had
developed a neo-communist mindset.
And his theory about how he was going to
rule the new country was that he was
going to make everybody leave the cities
and work on rice production.
And he would turn Cambodia into the rice
producing capital of the world.
Now the problem is, he didn't really
understand rice farming.
Because in Cambodia, each plot of land
has a different pH level, a different
water table.
And it's best worked by families who
really know how to deal with the
particular plot.
If you take tens of thousands or even
million people, and try to do it on a
mass basis it's not going to work.
And that's what he found out, but he
didn't understand why so he empties the
people out of the cities, and he has
everybody go into this mass agrarian
society, thinking he's going to produce
lots and lots of rice.
And instead the opposite happened.
The bottom falls out of rice production,
there's massive starvation.
The first level of killing were people
who just merely starved to death.
Many of them city workers who are now
been forced to work in farms.
The second level of killing is that, Pol
Pot, says, something's wrong.
And I think it's because the city workers
are not cooperating.
So, anybody who wore glasses, who was a
professional a lawyer, a doctor, a
teacher.
Anybody he considered educated, he
thought was an enemy and he had them
killed.
But, still, the rice production didn't
bloom.
And then he said it's my own[UNKNOWN]
people who are actually spies of the CIA,
and Vietnam.
So he rounded up 17,000 of them.
And he had them all tortured, and they
all admitted yes, we're spies, even
though they probably, none of them
probably were, and he had them all
executed.
So, this was in fact, the killing in
Cambodia.
Did he do it, however, because he was
targeting a national, a racial, a
religious group.
Now it's true among the groups he killled
were all the Vietnamese living in
Cambodia.
So yes, that probably qualifies.
He also targetted a couple of religous
groups that were minorities, that
probably qualifiies.
He also targetted, the leaders of the
Buddhist movement, the Monks.
That's not so clear and qualified because
just about everybody in Cambodia was
Buddhist, including Pol Pot himself.
And finally, he just targeted anybody he
thought was an enemy of his regime.
For the reason that his plan wasn't
working, and that's not going to be
genocide.
Here's another example.
In 1988, during the war between Iraq and
Iran, Saddam Hussein decided to kill the
Kurds that lived on the northern border
near Iran.
Now, he did this using chemical weapons.
And this is called the famous Anfal
Campaign.
What we learned during the trial of
Saddam Hussein and his cousin Chemical
Ali, who was the General in charge of
using the chemical weapons.
Is that they targeted the Kurds, not
because they hated Kurds but rather
because they thought the Kurds were
aligned with the Iranians during the war.
And secondly, because the Kurds were
living in oil-rich areas and they wanted
the oil.
And they gave the Kurds the option of
leaving before they dropped the chemical
weapons.
So under those circumstances, is it
genocide?
Well the Saddam trial, and the trial of
Chemical Ali, the judges said, yes it is
genocide.
And we know this because they killed the
little babies, and the children, and the
people who were old and frail.
And were in no way capable of helping the
Iranian cause or were in no way avoiding
allowing the Iraqi government to develop
the oil.
So because they were overbroad, because
they targeted the entire population of
Kurds, they were convicted of genocide.
Let's look at another one of these
crimes.
This one is crimes against humanity.
It's defined in the international
criminal court statute as targeting the
civilian population in a widespread and
systematic manner.
And there are lots of different kinds of
things that can apply.
Now, notice this crime is much broader
than genocide.
You don't have to have the intent to kill
a racial, national or religious group.
All you have to do is bad things against
the civilian population, and a very broad
basis.
The problem with crimes against humanity,
however, is that there isn't a duty to
prosecute, unless the individual has been
indicted by the International Criminal
Court.
I want to talk about an interesting case
that has arisen, that tests what is and
what's not a crime against humanity.
And that's the case of forced marriage.
What's been happening in places like,
Sierra Leone and Uganda, is that the
rebel groups will round up and kidnap
little girls and little boys.
The children that are male they turn in
to killing machines child soldiers.
The women, they turn into bush wives.
And the question came up at the special
court for Sierra Leon about turning these
people into bush wives.
Should be considered a specific crime
against humanity, under the clause that
says other inhuman acts.
Of a similar character that are
intentionally causing great suffering or
serious injury to bodily, healthy or to
mental and physical health.
The problem with this decision which
created a furious descent is.
That the tribunal statute already says
that rape and sexual slavery and enforced
prostitution and forced pregnancy are
crimes against humanity.
And so the question was, what does it add
to create a new crime against humanity of
forced marriage?
Ultimately, the appeals chamber said it
adds a lot, that forced marriage is not
just a thing that is the addition of all
these other things.
But is itself such a terrible thing,
because the woman will never be able to
be married again, having been forced to
marry.
She is treated like a spouse.
She is expected to raise the children as
if it was a regular marriage.
And it has an effect on her that is far
beyond the other crimes themselves.
Now as I was saying, there is no duty to
prosecute, or extradite, the perpetrator
of crimes against humanity.
Unless they've been indicted by the
International Criminal Court.
We'll apply that in a few minutes to our
simulation.
Finally, I want to talk about the crime
of torture.
There is a convention against torture,
that was put in force in 1994.
And there you have a picture of the
convention and one of the a examples of
torture that we have been talking about,
in this class water boarding.
So torture is defined in that treaty as
inducing severe pain or suffering.
And it can be physical or mental.
Under the torture convention, you can't
claim any acceptional circumstances that
allow for tortures.
So, the idea that we have a ticking time
bomb and we have to torture somebody in
order to find out where the bomb is.
Which we see in movies like or TV shows
like 24.
That is not allowed under the torture
convention.
And also, under article five, all the
parties to the torture convention have a
duty to extradite or prosecute any
torturer that's found in their territory.
Now, there's an important distinction in
the treaty between torture and another
crime that the treaty also covers.
Called cruel and human degrading
treatment.
And that is that all countries have to
prevent cruel and inhuman, and degrading
treatment.
But only if the crime arises to the
highest level of torture, do these other
clauses where there can't be any
justification.
No necessity defense.
Every country has to prosecute.
Only then do those apply.
So this brings us to the question of what
falls into torture and what is a cruel,
and inhuman, and degrading treatment
offense?
This first picture is a picture of a
woman in Iran who has been whipped for
the crime of adultery.
And I have to tell you that the Human
Rights Commission has determined that
that does fall into torture.
Here's an example that the United States
used against people during interrogations
in Guantanamo Bay.
They took a very scary, loud Insect.
And they put them in these little boxes
that are like coffins with the person
that they are interogating.
And they left them there while the person
screams and screams because of their fear
of insects.
Torture, or cruel and inhuman degrading
treatment?
Here's another example that has been used
by the British, by the Israelis, by the
United States it's called stress
positions.
You put somebody in these positions that
are very painful, but they don't cause
lasting damage to the body, but they're
horribly painful.
Torture or cruel, inhuman and degrading
treatment?
Another example that happens in Abu
Ghraib, in this picture.
Is using barking dogs against stripped
naked people as a way to soften them up
and scare them.
Torture, or cruel and inhumane and
degrading treatment.
And finally, here's our picture of water
boarding.
And in water boarding, the people don't
die, there's no lasting harm, but they
feel as if they are drowning.
And from reports of people who go through
this it's a horrible experience.
Is one case of water boarding torture?
Or cruel inhuman degrading treatment?
Well the way to decide this things is not
inherit in the type of activity but you
have to look sort of on a graph, which I
have created for you.
Analyzing this.
You have to look at the duration and the
repetition of the particular offence.
And you have to look at the intensity of
pain and the frailty of the victim.
So if we put our things on this list,
perhaps, we'll put the insect, there and
maybe the stress positions in the middle.
And we have the barkings dogs toward the
bottom and the water boarding, and the
whipping toward the top.
But it's a very nuiance decision that a
judge or a prosecutor has to look at,
balancing these factors.
And, it's, it's much more complicated,
clearly, than one might think.
Now let's think about what happened in
the United States with respect to
Guantanamo Bay.
Where people were water boarded, and
these bugs were used, and the other
things were used.
To soften them up, to try to get them to
tell where the whereabouts were of Osama
Bin Laden.
Or to tell them when the next bomb would
go off or whoever else was associated
with Al Qaeda.
There was an investigation into all of
this.
And the investigation looked at not just
at the perpetrators.
But also the people who wrote the White
House memos that said that it was
legitimate to do these kinds of things.
And ultimately at the end, the Attorney
General, who you see pictured here.
Said that the people who were engaged are
not going to be prosecuted.
The people who were engaged in the White
House torture memos are not going to be
prosecuted.
Does that leave them off the hook?
Well no because torture is a crime of
universal jurisdiction.
So Spain has said if Obama won't
prosecute, they will and in fact there
have been indictments through Spain and
Germany of some of these individuals.
Meaning that they are literally now
prisoners in the United States and they
can't travel around the world for fear of
prosecution.
All right.
Let's apply all of this to our
simulation.
Because we can't just decide what the two
parties want to do if they would violate
an international treaty that requires
prosecution.
So, in our situation, were there grave
breaches of the Geneva Convention?
If there were we have to prosecute.
Amnesty and truth commissions cannot do
the trick.
But remember, grave breaches of the
Geneva Conventions require an
international armed conflict, and in this
case it was just a civil war.
In fact.
All of war crimes require that there be
something more than sporadic acts of
violence against rioters.
And in this case, there really wasn't
fighting going on on both sides.
It wasn't even a civil war, okay the next
one is the question of whether a genocide
occured.
yes 7,000 people were killed and
in[UNKNOWN] which was the place in Bosnia
where 7,000 the same number were killed.
The Yugoslavia tribunal said that was
enough for genocide but they have to be
killed because of their ethnicity.
Their religion, their nationality.
Why were the people killed in our
simulation?
They were killed because they were
political opponents, so that's not going
to be genocide.
The next one is torture.
Well, there are two things that happen in
this case.
One is that the military regime rounded
up the members of the old regime and
water boarded them.
Was that torture?
I think that, depending on how long they
were water boarded, how often they were
water boarded.
That seems to be, then after the water
boarding, they were given
extra-traditional executions, meaning
they were killed without a trial.
And that also comes in to the torture
convention.
But, the simulated facts say that
Togoland had not ratified the torture
convention.
So the torture obligations cannot apply
to them, even though the other country
were these peace negotiations, Molotanya
, is a party to the torture convention.
Because the perpetrators were not from a
country where the treaty had been
ratified, the torture convention
obligation cannot apply.
And then finally, was it a crime against
humanity?
Well certainly, if you kill 7,000 people,
that seems systematic, it seems
widespread, they were civilians.
It looks like it's a crime against
humanity.
Is there a duty to prosecute however?
No, not unless the International Criminal
Court would indict these people for
committing crimes against humanity.
And so finally, we have the question of:
If there was an indictment by the
International Criminal Court.
Could there still be a peace deal where
you trade justice for amnesty, and get
the perpetrators to step down.
And, this is a question, that has not yet
been settled, but there are two causes of
the Rome treaty, that created the
International Criminal Court, that are
relevant.
The first is complimentarity, Article 17.
It says that the Interantional Criminal
Court will not prosecute if the person
has been investigated or prosecuted at
the local level.
Is a Truth Commission a legitimate
investitgation?
Is it kind of like a plea bargain, if it
is linked to paying compensation, to
lustration saying that they cannot hold
office if there is a stigma.
If they're having to do probationtary
things?
Maybe the argument can be made that
complimentarity would require the
International Criminal Court to defer.
The other option is under Article 16.
It says that the Security Council can
decide to tell the International Criminal
Court to hold off.
On a prosecution in the interests of
peace and justice.
But here, the security council has to
make that desicion.
And what it says is the international
court, the prosecutor and the judges
shouldn't be thinking about politics,
they should be thinking about justice.
And it's for the security council the
political branch of the United Nations
that has that power.
Finally, let's wrap all of this up, and
let's look at a bunch of situations
around the world.
And decide whether there was a duty to
prosecute, or whether a peace for justice
swap would have been legit, legitimate.
Okay, first of all, let's start with
Haiti in 1994.
That's the case where a military regime
took power.
And the Haitian president fled to New
York City and the United Nations tried to
negotiate a deal.
Now, the first question is, was there
grave breach to the Geneva conventions?
Not in Haiti, it was all in internal
armed conflict.
And for grave breaches, remember, it has
to international.
Were there other war crimes in Haiti?
Probably not.
It was a very one sided conflict.
You had General Cedras and his
subordinates committing atrocities
against political opponents.
But there wasn't really whole scale
fighting going on.
Was it genocide?
No.
General Cedras was not killing people
because of their ethnicity, their
nationality, or their race.
He was killing them because they were
political opponents.
Was it a crime against humanity?
It absolutely was.
Probably 3,000 people died over a period
of months.
It was systematic, it was widespread.
Was it torture?
Well Haiti was not a party to the Torture
Convention, so that didn't apply.
So looking at this, could they make a
deal with the leaders, the military
leaders?
Absolutely.
The only crime that was implicated was
crimes against humanity.
There was not an indictment by the
International Criminal Court, it didn't
even exist at the time.
And so as a result, the deal was made,
the Haitian military leaders went into
exile and justice was swapped for peace.
Let's look at South Africa and the
Apartheid regime.
were there grave breaches?
Well, Apartheid killed a lot of people,
but there was not an armed conflict, and
if there was in some cases, it wasn't
international.
So, no duty to prosecute under the Geneva
Conventions.
Other war crimes only if the fighting was
sustained at a high enough level.
Not if it's one-sided atrocities by the
government against opponents.
Was it genocide?
Again, these people were being
subjugated.
They were being abused, but they weren't
being killed in mass numbers because even
of their race.
Was it a crime against humanity?
Absolutely.
The United Nations has said that
apartheid was a crime against humanity.
Was it torture?
It was, but again.
South Africa wasn't a party.
Where does that leave us?
The same place as Haiti.
And that's what happened.
In South Africa there was a deal where
there was a truth commisison, there was
amnesty.
There were not prosecutions of many of
the leaders of the apartheid regime.
And the international community not only
endorsed it, but helped negotiate it.
How about the case of Cambodia, the
killing fields?
We've talked about that, so this is
review.
Grave breaches?
No, it wasn't an international armed
conflict.
Other war crimes?
Yes, in some cases there was fighting
that was going on when Pol Pot was taking
over the country.
Was it genocide?
We're not sure.
It depends on whether the cases against
the killing of all the people who were
relocated from the cities.
Or was it a case just against some of the
victims?
Or dealing with some of the victims like
the Vietnamese.
And some of the smaller religious groups.
Was it a crime against humanity?
Absolutely.
And was it torture, again?
Cambodia wasn't a party to the torture
convention.
So, where does this leave us?
Could there have been a peace for justice
swap in Cambodia?
There could have been.
It came close to that.
But the international community decided,
nonetheless, to create a Cambodia
tribunal for prosecution.
Didn't do so right away.
That's another issue.
It waited 30 years and sometimes
international justice has to be patient.
Sometimes you swap justice for peace,
only temporarily, and ultimately justice
catches up.
Let's look at the situation of Bosnia,
1995, the Srebrenica massacre.
Was it a grave breach of the Geneva
Conventions?
Absolutely.
You had troops that were supported and
controlled by Serbia who were committing
atrocities in Bosnia.
And that's what the international
tribunal decided.
There is a duty to prosecute in such a
case.
Other war crimes committed as well.
Genocide, the tribunal said, absolutely.
7,000 people who were Bosnians were
killed by the Serbs because of their
ethnicity.
And they were wiped out.
Also a crime against humanity.
And torture as well.
And interestingly, Bosnia had ratified
the torture convention in 1993, two years
before Chevronista.
So for all these reasons there could not
have been a justice for peace swap.
And that's why you saw the people
ultimately facing justice, both before
the International Criminal Tribunal for
the former Yugoslovia.
But also in courts in Bosnia, in Serbia
and Croatia.
Iraq 1988, we talked about this is
reviewed.
Grave breaches?
No, not against the Kurds who were people
that were also part of the domestic
population.
Was it linked to an international armed
conflict?
If it was, then it could have been a
grave breach.
Other war crimes the situation of
attacking the, the Kurds seemed to be
very one sided.
There wasn't actually a conflict between
the Kurds and the government it was just
the government dropping bombs.
And it requires more than that to be the
other war crimes in some people's view.
Now again if this is linked to the
broader war with Iran and that would have
been something that would've had to be
tried.
You could have prosecuted those.
Genocide, that's what the court decided.
Crime against humanity, absolutely.
Torture, again Iraq was not a party to
the Torture Convention.
I think you're seeing a pattern here.
The Torture Convention is very strong but
not a lot of countries where torture
occurs have had the, the temerity to
ratify the convention.
Knowing full well that someday, their
leaders could be prosecuted under it.
Syria in 2013.
Now, this is being taped a little bit
before this'll be aired, so I'm not
exactly sure what will unfold in the next
couple of weeks in Syria.
But is it grave breaches at this point?
No, it's an internal armed conflict, and
grave breaches only apply in an
international armed conflict.
Are there other war crimes?
Yes, the international committee of the
Red Cross says that the fighting on both
sides is high enough.
That it, it counts as a civil war, and
therefore the war crimes that are
occurring are crimes that trigger
universal jurisdiction.
But not the duty to prosecute.
Genocide, well, at this point, it doesn't
look like there is, I'm not sure who the
victim group would be.
Because it's basically the government,
which is made up of several groups
Killing the opposition which is made up
of several groups.
And doesn't seem be because of their
ethnicity, race or religion or
nationality.
Crimes against humanity absolutely, 60000
people have been killed to date its
widespread, its systematic and its a
torture once again.
Syria is not party to the torture
convention.
Now in Syria, there have been, the
suggestion raised.
That the whole thing could be solved if
President Assad would merely step down
from power and go to Russia.
What does this tell us?
If he does so can the international
community say that doesn't violate
international law?
That tells us that is, in fact, the case.
This is a situation where they could swap
justice for peace.
Now does it make sense to do so?
That's a question that often is at the
subject of great international
negotiations.
Just because it's legal to swap justice
for peace doesn't mean it's a good idea
to do so.
And what happens, as we said earlier in
the class.
Is that when you make these kinds of
swaps, you may be sowing the seeds for
future conflict.
You may be sowing the seeds for vigilante
justice.
You may be sowing the seeds for
disrespect for the law.
And so this is a question that is really
up-front in the international community,
every couple of years, including right
now in a situation of Syria.
Now let me end with a preview of next
class.
So far, we've been going over today.
The international crimes of grave
breaches of the Geneva conventions.
Crimes against humanity genocide and
torture.
And we've talked about the contours and
the definitions of those crimes and also
whether the duty to prosecute applies or
does not.
Next class we're going to look at two
more really important international
crimes.
We're going to look at the crime of
terrorism.
And the difficulty of defining that
crime.
And then we're going to be looking at
modern day piracy.
A crime most people thought had been
snuffed out 200 years ago that has come
back with a vengeance.
So, until next class, please do the
readings and I look forward to seeing
you.
And a special thanks to Lisa Shields and
Richard Hoss for bringing us all together
today.
Over the past seven years, I've worked
with UNHCR and I've travelled around the
world to try to bring attention to
refugees and internally displaced
persons.
And it's been a remarkable education.
On my last trip to Chad I asked a group
of refugees, what do they need, what are
their concerns.
And one woman said, better access to
water.
Another said, medicine.
Another, better tents.
And this young boy raised his hand and he
said, we need a trial.
And he heard that morning on BBC radio
that the ICC has issued arrest warrants.
And it meant something to him.
He was asking for what any of us would
ask for, having been violated.
Having had many horrific things happen to
his family.
And yet, in my heart, I knew that he may
never see that trial.
That justice often seems like a luxury
for the rich and wealthy nations.
In far too many places I've been, I've
seen refugees return to live among the
same people that attacked them.
Peace is placed before justice, often
instead of justice.
And often at the insistence of the
perpetrator.
And this is happening today with Joseph
Kony in Uganda and with President Bashir
in Sudan.
They are threatening more violence and
delaying or blocking aid if we attempt to
bring them to justice.
And often we listen to them.
We let them dictate what will happen, we
let those who destroy their countries
decide the future for their countries.
Now I believe after finding myself
returning to countries, who after a brief
period of peace are again at war.
That there is no enduring peace without
justice.
I've seen refugees whose rations were cut
nearly in half, and I've seen them
waiting for the aid truck to arrive.
Just to find out that the aid relief was
stolen by the rebels who are still
active.
And I've talked with little kids who had
bruises and they showed them to me and
they said someone came and they gave us
new school supplies.
But the bad guys took them away.
because the bad guys were still there.
And I've sat in a tent with women who
were about to be returned to their
homeland.
Women whose daughters were raped, and
husbands were killed, and many of their
sons also killed or tortured.
And I've heard them ask, how is it safe
to go back?
And I've watched aid workers struggle to
explain that some things have been
signed, some people have shaken hands.
But what they don't say is that aid in
their host country has run out, because
the international community wants to see
returns.
And wants to see progress.
But that really nothing has changed to
ensure their safety, that they are
returning to the same lawlessness that
sent them running in the first place.
And I've seen these same aid workers tear
up when they put these ladies on the
buses, and say, I don't know what we're
sending them back to.
Common sense tells us that when the risks
are weighed, the decisions are made very
differently.
When crimes against humanity are punished
consistently and severely, the killer's
calculus will change.
And when a killer is allowed to walk away
from his crimes.
I believe that also tells him something.
It sends a message to the next that they
need not worry, that they will most
likely not be held accountable for their
actions.
I believe that the existence of trials
alone has the potential to change
behavior.
But ultimately, we need to arrest those
who are indicted.
And the Sudanese arrest of Alec Tushev
appears to be a positive development.
But not if it becomes a bargaining chip
that'll stop others from being brought to
justice.
Without an arrest, we tell the victims of
these atrocities that impunity is the
rule of law.
Now I don't know if the ICC is the
answer.
And I don't know what type of court is or
what it would need to be for all of us to
agree and make it strong enough.
I have no idea.
And after seven years of traveling into
the field I find that I have a lot I need
to learn.
But I do know this.
No mother who had her children killed in
front of you, her.
No young girl sold into slavery.
No boy kidnapped and forced to be a child
soldier.
And no young girl like the three year old
I met in Sierra Leon who had her limbs
cut off should be expected to simply
forget.
No one should have to chose between peace
or justice and that young boy in Darfur
who asked for a trial deserves one.
So thank you very much for letting me
speak[NOISE] and I'll pass this on
to[INAUDIBLE] .
[MUSIC]
>> The philosopher Immanuel Kant once
said, there shall be justice though the
heavens may fall.
But in this day and age, peace
negotiators are often interested in
negotiating away justice.
[SOUND] If it will bring an end to a
crisis.
I am Michael Scharf, and in today's
session we're going to be looking at the
tension between peace and justice.
The objectives that we'll cover, is first
looking at what are the reasons why peace
negotiators are so interested in
bargaining away justice.
Second, we'll look at whether there are
limits to the ability to trade justice
for peace.
Sometimes there is a duty to prosecute.
Sometimes there isn't.
Next we'll be looking at the definition
and contours of those international
crimes that have a duty to prosecute.
Grave breaches of the Geneva Conventions,
genocide, torture and crimes against
humanity.
Let's begin with our simulation.
Now, those of you that have done the
reading, and some of you who have already
gone online with your comments to the
reading.
Know that we have created a fictional
country called Togoland.
This is based loosely on the situation
that happened in Haiti in 1994.
So the facts to summarize, in our
fictional case are these.
First of all, the country is made up of
two ethnic groups: the Heautonomy, which
is the majority, and the Teautnomy, which
is the minority.
The president of the country is a
Teautnomy, from the minority party.
His country's administration has been
accused of all sorts of corruption.
And while the Vice President is out of
the country attending a meeting in
Geneva, the President has a heart attack.
And General Sedrock, who is the chief of
the military, seizes power in a blood
less coup.
Next, over the next few days General
Cedras rounds up the leaders of the old
regime which has been accused of
corruption.
And he has them waterboarded, which you
remember from our last session is a
simulated form of drowning, which many
people believe is torture.
Most of these people then confess,
whether it's true or not, that they were
corrupt, and he has them summarily
executed without sending their cases to
trial.
Meanwhile, the Vice President in Geneva
calls for strikes at the cobalt mines and
for protests.
And people line up at the Togoland
Square, which is sort of like Tiananmen
Square, from history, and the strikes
begin.
And so, the new General, who's in charge
of the country, decides to order his
troops, to make an example.
And 10,000 people who are gathered are
shot upon, 7,000 of them die in 15
minutes.
A couple of days later, the UN imposes an
embargo on the cobalt mines, and freezes
the assets.
And this forces the two parties to the
peace negotiations.
On May 25th, the peace negotiations break
out, and that's the subject of your
simulation.
The, peace negotiator here is Kofi Annan,
the former Secretary General of the
United Nations.
We have General Cederack and we have
Madam Erickson.
And their lawyers have to decide what can
they decide to negotiate with?
What can they bargain for?
What will it take to get General Cedrack
to relinquish power and give it back to
Madame Erickson and the democratically
elected government?
And more importantly, are there legal
problems with some of those suggestions.
So we have looked through all of the
suggestions that you have made online.
And these are some of the ones that have
surfaced.
One option was, and this of course was
the one that was preferred by the General
and his staff, let's have a complete
amnesty.
An amnesty means let's say that there can
be no legal prosecutions, no civil trials
for damages against the General.
And if he is such immunized, he would be
happy to relinquish power under those
situations.
The advantages are that that can stop the
atrocities, it will facilitate the regime
change.
But the disadvantages are that it
breathes contempt for the law and it can
lead to vigilante justice.
The victims' families are not going to be
happy with the fact that the
perpretrators have gotten away with mass
murder.
Now, another wrinkle of this that might
be a fall-back position for the General
is that there could be a truth
commission.
There have been many truth commissions
established around the world, some of the
most famous of which were in El Salvador.
And in South Africa and the advantages of
a truth commison is that they can create
a historic record of what happenned.
They can make reccomendations for change.
And they can also be tied to reparations
which means giving compensation to the
victims.
And also something called lustration.
Which is a word that means keeping the
perpetrators from ever being allowed to
hold official office or be in the
military in the future.
Now, the problems with the Truth
Commission approach are similar to those
of Amnesty.
It's not thought of as a real trial, and
so the evidence is not seen as credible.
The individuals can be named without due
process.
And this could be bad, because if you
were named in the public report of a
Truth Commission, and you haven't had due
process.
You haven't been able to confront your
accusers, you're going to go through the
rest of your life with a stigma.
And worse, you may have a, a virtual
target painted on your back, where the
victim's families are going to try to
take you off.
Just because you've avoided justice.
Now, there have been many exile for peace
deals along these lines in history.
And so the General can point to some of
these, for example, this is the picture
of Raoul Sed Cedras.
Who was the military leader who siezed
power in Haiti in 1994 he ended up
relinquishing power in a deal that sent
him off to Panama.
Were he's living a comfortable life in a
giant hill top residence.
Then you have the case of Charels Taylor
from Liberia who was responsible for many
of the atrocities in neighboring Sierra
Leon.
After he was taken from power, he went to
Nigeria and was given a comfortable
amnesty there for several years.
Untill he started trying to assasinate
other leaders throughout Africa.
And the international tribunal closed the
special court for Sierra Leone that was
created for these attrocities.
Closed the loop on him and ultimately he
was surrendered to the Hegue, where he's
been prosecuted and convicted.
Then there's the case of Saddam Hussein.
Now Saddam Hussein, in the last days just
before the invasion of 2003.
The Bush Administration said, Saddam, if
you and your family will go to
neighboring Bahrain.
We've negotiated a deal where you can go
into retirement, and we won't have to
invade your country.
He turned that down and, and we know how
that ended up.
Not well for him.
There's the case of Idi Amin of Uganda,
who after he fell for power, spent the
rest of his life, three decades, living a
fairly comfortable life in Saudi Arabia.
You have the case of Muammar Gaddafi, in
the summer of 2011 when there were air
strikes against Gaddafi.
The United Kingdom actually brought up
the idea that if Gaddafi would leave
power, the air strikes could stop.
And they could avoid a lot of bloodshed.
Like Saddam Hussein, Gaddafi didn't take
that and it didn't work out so well for
him as well.
Now, the current situation is the case of
Syria and there have been proposals for
Mr.
Asaad, the President of Syria, to go to
Russia.
And have a regime change that is
peaceful.
And so these exile for peace deals are
something have happened frequently.
The other option, the ones that the Vice
president Madame Erickson is going to
want to push for, are prosecution
options.
The first would be a domestic
prosecution, domestic trials.
The strengths of course, are that the
victims can attend the trial, and see
justice done.
It creates local media coverage.
The population is more likely to believe
the judgments of the trial.
And here I can give you an example from
Nuremberg.
As you remember from the last class
session, the Nuremberg trial prosecuted
the Nazis before an international
tribunal.
And there were surveys done of the
population of Germany, where they asked
two questions.
Question one was: Did you believe that
the Nazis were guilty of the crimes for
which they were prosecuted at Nuremburg?
And number two: Did you think they had
got a fair trial?
And overwhelmingly, percentages over 85%,
in each of these surveys for a period of
ten years.
Showed that the German people did not
believe in the Nuremberg judgement.
In fact it was not until the 1960's, when
the German Domestic courts, started to
prosecute the concentration camp
commanders.
That those surveys showed, that the
German people a generation later, finally
saw, that these people were guilty, and
many people conclude.
That the difference was that this was
proven by the Germans' own courts.
Now, the negative aspects of domestic
trials are that there are greater chances
of injustice.
Local courts can be unable to
successfully, or fairly, prosecute
leaders from a former regime.
And so for that reason often there's the
suggestion that there be an international
trial.
Either an ad hoc tribunal or using the
permanent international criminal court.
The advantages of an international court
is that you have experienced judges who
are objective.
You have prosecutors and defense council
that are highly paid by the international
community.
That they have a lot of resources and
they're very experienced.
And there are high standards of due
process.
And these courts are well funded.
The negative aspects are, they take very
long to have these cases.
They're extrememly expensive, sometimes
as much as $100 million just for a single
case.
They're too far removed from the source
of the attrocities, and often the
individuals, as in Rwanda.
The victims didn't feel a connection to
the Rwanda Tribunal which was sitting in
neighboring Tanzania.
And therefore they're not as credible as
home-grown justice.
Now, the next question, even once we see
these options and we figure out what the
two sides may prefer.
Is whether the international community
can support this kind of deal.
And often that question comes down to
whether there is a legal.
Duty to prosecute.
These legal duties come from
international criminal treaties.
And we're going to be talking about some
of them.
The most important probably is the Geneva
Conventions.
This is the treaty that codifies the laws
of war.
They were negotiated in 1949 after the-
Second World War.
And they have a clause called the Grave
Breaches clause, which requires
prosecution of those who commit the worst
kinds of atrocities.
The clause says that.
Those who are guilty of willful killing,
torture or inhumane treatment, including
biological experiments.
Willfully causing great suffering or
serious injury to body or health and
extensive destruction.
And appropriation of property that's not
justified by military necessity, that's
carried out wantinly and unlawfully, have
to be prosecuted.
Now there's a clause here I want to focus
on and that is not justified by military
necessity.
Every time a civilian is killed during a
war, it is not a grave breach.
For example, the laws of war say that you
can have civilian casualties, and it's
not a grave breach or a war crime.
As long as the two requirements of
distinction in targeting and
proportionality, are met.
Proportionality means that if the
civilians die, they're just lawful
collateral damage.
It's not a war crime so long as their
deaths are not disproportionate to the
military objective.
Now, another thing related to this is
that there are certain targets that are
out of bounds.
That you're not allowed to attack during
a war.
For example, you're not allowed to attack
hospitals, religious or cultural
structures, if you attack those it can be
a grave breach of the Geneva Conventions.
Here we have a cartoon of a protected
site.
But there is an exception represented by
this cartoon.
When the enemy uses the structure as a
base of military operations, the target
loses it's protected status and it can be
attacked.
Here's an example in the real world.
This is a map of the Gaza area.
An occupied territory outside of Isreal
that was shooting many many missles into
Isreal.
So, this is a map of where schools are,
where hospitals are, where military bases
are and all the missile sites.
And Israel used this kind of map to
decide where to shoot back.
This is a great illustration, because if
the Israelis would shoot at places that
were too close to schools or mosques.
Or areas that were highly populated, that
would violate the requirements of
distinction and proportionality.
So modern day targeting has to be very
careful about those requirements, or it
can be considered a war crime.
Now the grave breaches provision had
their limits.
For example, they only apply in
international armed conflict.
They don't apply within a country's own
borders during a civil war.
In such a situation, there is a duty to
prosecute only when there's an
international armed conflict.
For civil wars, you have universal
jurisdiction, which we've spoken about
before.
Which means any country can prosecute a
offender if they're on their territory,
if the country wishes.
But they're not obligated to do so, which
opens the door in civil wars.
For these amnesty for peace deals.
Now let's look at another one of these
international treaties that creates a
duty to prosecute.
And this is the U.N Genocide Convention.
It was negotiated and concluded right
after World War two trying to codify the
law against the atrocities committed by
the Nazis.
But as I mess, mentioned in the last
session.
During the Cold War, when this was
negotiatied, Joseph Stalin was commiting
the same kinds of atrocities killing
20,000,000 Russians.
And he was able to insert during the
negotiations, a clause, into this treaty,
that said it only applied to killing of
national, ethnic, racial, or religious
groups.
He purposefully left out killing
political opponents, because that's what
he had been doing.
So genocide, by definition, because of
its negotiating status during the Cold
War has left out the most frequent source
of murders.
During internal strife and that is
killing mass numbers of opposition.
So genocide you have to have the specific
intent to destroy the group it has to be
one of these types of groups.
And you can do that through killing, but
also through sterilization.
Or other ways of basically destroying the
group.
Now, what is genocide?
Let' s look at a couple of case studies
that show you some of the difficulties in
deciding its contours.
before we do so I do want to mention that
like Grave Breaches.
The Genocide Convention requires people
and governments to prosecute Genocide
when the Genocide is in their own
borders.
But for other countries around the world,
there's not a duty to prosecute those who
commit Genocide.
There's universal jurisdiction that
permits them to do so.
So that means that other than the country
where the Genocide occurred.
Other countries are free to enter into
these, again, peace for justice swaps.
Okay.
So our first case study.
Most everybody knows about the story of
Khmer, the Khmer Rouge killing fields.
Where in Cambodia from 1976 to 1979 about
a half the population were murdered, by
Pol Pot.
It was made into a famous movie, The
Killing Fields.
And currently the regime leaders, who
have survived are on trial in Cambodia
for these crimes.
But was it genocide?
Most everybody thinks it is.
But let's look at the facts and see if
they're going to be difficulties in
proving that.
The facts are pretty interesting.
I myself spent my sabbatical working at
the Cambodia Tribunal pouring through the
kind of evidence that I'm going to talk
to you about.
And working on the briefs in these cases.
So this is the story basically Pol Pot
takes over Cambodia.
He had been studying in France, he had
developed a neo-communist mindset.
And his theory about how he was going to
rule the new country was that he was
going to make everybody leave the cities
and work on rice production.
And he would turn Cambodia into the rice
producing capital of the world.
Now the problem is, he didn't really
understand rice farming.
Because in Cambodia, each plot of land
has a different pH level, a different
water table.
And it's best worked by families who
really know how to deal with the
particular plot.
If you take tens of thousands or even
million people, and try to do it on a
mass basis it's not going to work.
And that's what he found out, but he
didn't understand why so he empties the
people out of the cities, and he has
everybody go into this mass agrarian
society, thinking he's going to produce
lots and lots of rice.
And instead the opposite happened.
The bottom falls out of rice production,
there's massive starvation.
The first level of killing were people
who just merely starved to death.
Many of them city workers who are now
been forced to work in farms.
The second level of killing is that, Pol
Pot, says, something's wrong.
And I think it's because the city workers
are not cooperating.
So, anybody who wore glasses, who was a
professional a lawyer, a doctor, a
teacher.
Anybody he considered educated, he
thought was an enemy and he had them
killed.
But, still, the rice production didn't
bloom.
And then he said it's my own[UNKNOWN]
people who are actually spies of the CIA,
and Vietnam.
So he rounded up 17,000 of them.
And he had them all tortured, and they
all admitted yes, we're spies, even
though they probably, none of them
probably were, and he had them all
executed.
So, this was in fact, the killing in
Cambodia.
Did he do it, however, because he was
targeting a national, a racial, a
religious group.
Now it's true among the groups he killled
were all the Vietnamese living in
Cambodia.
So yes, that probably qualifies.
He also targetted a couple of religous
groups that were minorities, that
probably qualifiies.
He also targetted, the leaders of the
Buddhist movement, the Monks.
That's not so clear and qualified because
just about everybody in Cambodia was
Buddhist, including Pol Pot himself.
And finally, he just targeted anybody he
thought was an enemy of his regime.
For the reason that his plan wasn't
working, and that's not going to be
genocide.
Here's another example.
In 1988, during the war between Iraq and
Iran, Saddam Hussein decided to kill the
Kurds that lived on the northern border
near Iran.
Now, he did this using chemical weapons.
And this is called the famous Anfal
Campaign.
What we learned during the trial of
Saddam Hussein and his cousin Chemical
Ali, who was the General in charge of
using the chemical weapons.
Is that they targeted the Kurds, not
because they hated Kurds but rather
because they thought the Kurds were
aligned with the Iranians during the war.
And secondly, because the Kurds were
living in oil-rich areas and they wanted
the oil.
And they gave the Kurds the option of
leaving before they dropped the chemical
weapons.
So under those circumstances, is it
genocide?
Well the Saddam trial, and the trial of
Chemical Ali, the judges said, yes it is
genocide.
And we know this because they killed the
little babies, and the children, and the
people who were old and frail.
And were in no way capable of helping the
Iranian cause or were in no way avoiding
allowing the Iraqi government to develop
the oil.
So because they were overbroad, because
they targeted the entire population of
Kurds, they were convicted of genocide.
Let's look at another one of these
crimes.
This one is crimes against humanity.
It's defined in the international
criminal court statute as targeting the
civilian population in a widespread and
systematic manner.
And there are lots of different kinds of
things that can apply.
Now, notice this crime is much broader
than genocide.
You don't have to have the intent to kill
a racial, national or religious group.
All you have to do is bad things against
the civilian population, and a very broad
basis.
The problem with crimes against humanity,
however, is that there isn't a duty to
prosecute, unless the individual has been
indicted by the International Criminal
Court.
I want to talk about an interesting case
that has arisen, that tests what is and
what's not a crime against humanity.
And that's the case of forced marriage.
What's been happening in places like,
Sierra Leone and Uganda, is that the
rebel groups will round up and kidnap
little girls and little boys.
The children that are male they turn in
to killing machines child soldiers.
The women, they turn into bush wives.
And the question came up at the special
court for Sierra Leon about turning these
people into bush wives.
Should be considered a specific crime
against humanity, under the clause that
says other inhuman acts.
Of a similar character that are
intentionally causing great suffering or
serious injury to bodily, healthy or to
mental and physical health.
The problem with this decision which
created a furious descent is.
That the tribunal statute already says
that rape and sexual slavery and enforced
prostitution and forced pregnancy are
crimes against humanity.
And so the question was, what does it add
to create a new crime against humanity of
forced marriage?
Ultimately, the appeals chamber said it
adds a lot, that forced marriage is not
just a thing that is the addition of all
these other things.
But is itself such a terrible thing,
because the woman will never be able to
be married again, having been forced to
marry.
She is treated like a spouse.
She is expected to raise the children as
if it was a regular marriage.
And it has an effect on her that is far
beyond the other crimes themselves.
Now as I was saying, there is no duty to
prosecute, or extradite, the perpetrator
of crimes against humanity.
Unless they've been indicted by the
International Criminal Court.
We'll apply that in a few minutes to our
simulation.
Finally, I want to talk about the crime
of torture.
There is a convention against torture,
that was put in force in 1994.
And there you have a picture of the
convention and one of the a examples of
torture that we have been talking about,
in this class water boarding.
So torture is defined in that treaty as
inducing severe pain or suffering.
And it can be physical or mental.
Under the torture convention, you can't
claim any acceptional circumstances that
allow for tortures.
So, the idea that we have a ticking time
bomb and we have to torture somebody in
order to find out where the bomb is.
Which we see in movies like or TV shows
like 24.
That is not allowed under the torture
convention.
And also, under article five, all the
parties to the torture convention have a
duty to extradite or prosecute any
torturer that's found in their territory.
Now, there's an important distinction in
the treaty between torture and another
crime that the treaty also covers.
Called cruel and human degrading
treatment.
And that is that all countries have to
prevent cruel and inhuman, and degrading
treatment.
But only if the crime arises to the
highest level of torture, do these other
clauses where there can't be any
justification.
No necessity defense.
Every country has to prosecute.
Only then do those apply.
So this brings us to the question of what
falls into torture and what is a cruel,
and inhuman, and degrading treatment
offense?
This first picture is a picture of a
woman in Iran who has been whipped for
the crime of adultery.
And I have to tell you that the Human
Rights Commission has determined that
that does fall into torture.
Here's an example that the United States
used against people during interrogations
in Guantanamo Bay.
They took a very scary, loud Insect.
And they put them in these little boxes
that are like coffins with the person
that they are interogating.
And they left them there while the person
screams and screams because of their fear
of insects.
Torture, or cruel and inhuman degrading
treatment?
Here's another example that has been used
by the British, by the Israelis, by the
United States it's called stress
positions.
You put somebody in these positions that
are very painful, but they don't cause
lasting damage to the body, but they're
horribly painful.
Torture or cruel, inhuman and degrading
treatment?
Another example that happens in Abu
Ghraib, in this picture.
Is using barking dogs against stripped
naked people as a way to soften them up
and scare them.
Torture, or cruel and inhumane and
degrading treatment.
And finally, here's our picture of water
boarding.
And in water boarding, the people don't
die, there's no lasting harm, but they
feel as if they are drowning.
And from reports of people who go through
this it's a horrible experience.
Is one case of water boarding torture?
Or cruel inhuman degrading treatment?
Well the way to decide this things is not
inherit in the type of activity but you
have to look sort of on a graph, which I
have created for you.
Analyzing this.
You have to look at the duration and the
repetition of the particular offence.
And you have to look at the intensity of
pain and the frailty of the victim.
So if we put our things on this list,
perhaps, we'll put the insect, there and
maybe the stress positions in the middle.
And we have the barkings dogs toward the
bottom and the water boarding, and the
whipping toward the top.
But it's a very nuiance decision that a
judge or a prosecutor has to look at,
balancing these factors.
And, it's, it's much more complicated,
clearly, than one might think.
Now let's think about what happened in
the United States with respect to
Guantanamo Bay.
Where people were water boarded, and
these bugs were used, and the other
things were used.
To soften them up, to try to get them to
tell where the whereabouts were of Osama
Bin Laden.
Or to tell them when the next bomb would
go off or whoever else was associated
with Al Qaeda.
There was an investigation into all of
this.
And the investigation looked at not just
at the perpetrators.
But also the people who wrote the White
House memos that said that it was
legitimate to do these kinds of things.
And ultimately at the end, the Attorney
General, who you see pictured here.
Said that the people who were engaged are
not going to be prosecuted.
The people who were engaged in the White
House torture memos are not going to be
prosecuted.
Does that leave them off the hook?
Well no because torture is a crime of
universal jurisdiction.
So Spain has said if Obama won't
prosecute, they will and in fact there
have been indictments through Spain and
Germany of some of these individuals.
Meaning that they are literally now
prisoners in the United States and they
can't travel around the world for fear of
prosecution.
All right.
Let's apply all of this to our
simulation.
Because we can't just decide what the two
parties want to do if they would violate
an international treaty that requires
prosecution.
So, in our situation, were there grave
breaches of the Geneva Convention?
If there were we have to prosecute.
Amnesty and truth commissions cannot do
the trick.
But remember, grave breaches of the
Geneva Conventions require an
international armed conflict, and in this
case it was just a civil war.
In fact.
All of war crimes require that there be
something more than sporadic acts of
violence against rioters.
And in this case, there really wasn't
fighting going on on both sides.
It wasn't even a civil war, okay the next
one is the question of whether a genocide
occured.
yes 7,000 people were killed and
in[UNKNOWN] which was the place in Bosnia
where 7,000 the same number were killed.
The Yugoslavia tribunal said that was
enough for genocide but they have to be
killed because of their ethnicity.
Their religion, their nationality.
Why were the people killed in our
simulation?
They were killed because they were
political opponents, so that's not going
to be genocide.
The next one is torture.
Well, there are two things that happen in
this case.
One is that the military regime rounded
up the members of the old regime and
water boarded them.
Was that torture?
I think that, depending on how long they
were water boarded, how often they were
water boarded.
That seems to be, then after the water
boarding, they were given
extra-traditional executions, meaning
they were killed without a trial.
And that also comes in to the torture
convention.
But, the simulated facts say that
Togoland had not ratified the torture
convention.
So the torture obligations cannot apply
to them, even though the other country
were these peace negotiations, Molotanya
, is a party to the torture convention.
Because the perpetrators were not from a
country where the treaty had been
ratified, the torture convention
obligation cannot apply.
And then finally, was it a crime against
humanity?
Well certainly, if you kill 7,000 people,
that seems systematic, it seems
widespread, they were civilians.
It looks like it's a crime against
humanity.
Is there a duty to prosecute however?
No, not unless the International Criminal
Court would indict these people for
committing crimes against humanity.
And so finally, we have the question of:
If there was an indictment by the
International Criminal Court.
Could there still be a peace deal where
you trade justice for amnesty, and get
the perpetrators to step down.
And, this is a question, that has not yet
been settled, but there are two causes of
the Rome treaty, that created the
International Criminal Court, that are
relevant.
The first is complimentarity, Article 17.
It says that the Interantional Criminal
Court will not prosecute if the person
has been investigated or prosecuted at
the local level.
Is a Truth Commission a legitimate
investitgation?
Is it kind of like a plea bargain, if it
is linked to paying compensation, to
lustration saying that they cannot hold
office if there is a stigma.
If they're having to do probationtary
things?
Maybe the argument can be made that
complimentarity would require the
International Criminal Court to defer.
The other option is under Article 16.
It says that the Security Council can
decide to tell the International Criminal
Court to hold off.
On a prosecution in the interests of
peace and justice.
But here, the security council has to
make that desicion.
And what it says is the international
court, the prosecutor and the judges
shouldn't be thinking about politics,
they should be thinking about justice.
And it's for the security council the
political branch of the United Nations
that has that power.
Finally, let's wrap all of this up, and
let's look at a bunch of situations
around the world.
And decide whether there was a duty to
prosecute, or whether a peace for justice
swap would have been legit, legitimate.
Okay, first of all, let's start with
Haiti in 1994.
That's the case where a military regime
took power.
And the Haitian president fled to New
York City and the United Nations tried to
negotiate a deal.
Now, the first question is, was there
grave breach to the Geneva conventions?
Not in Haiti, it was all in internal
armed conflict.
And for grave breaches, remember, it has
to international.
Were there other war crimes in Haiti?
Probably not.
It was a very one sided conflict.
You had General Cedras and his
subordinates committing atrocities
against political opponents.
But there wasn't really whole scale
fighting going on.
Was it genocide?
No.
General Cedras was not killing people
because of their ethnicity, their
nationality, or their race.
He was killing them because they were
political opponents.
Was it a crime against humanity?
It absolutely was.
Probably 3,000 people died over a period
of months.
It was systematic, it was widespread.
Was it torture?
Well Haiti was not a party to the Torture
Convention, so that didn't apply.
So looking at this, could they make a
deal with the leaders, the military
leaders?
Absolutely.
The only crime that was implicated was
crimes against humanity.
There was not an indictment by the
International Criminal Court, it didn't
even exist at the time.
And so as a result, the deal was made,
the Haitian military leaders went into
exile and justice was swapped for peace.
Let's look at South Africa and the
Apartheid regime.
were there grave breaches?
Well, Apartheid killed a lot of people,
but there was not an armed conflict, and
if there was in some cases, it wasn't
international.
So, no duty to prosecute under the Geneva
Conventions.
Other war crimes only if the fighting was
sustained at a high enough level.
Not if it's one-sided atrocities by the
government against opponents.
Was it genocide?
Again, these people were being
subjugated.
They were being abused, but they weren't
being killed in mass numbers because even
of their race.
Was it a crime against humanity?
Absolutely.
The United Nations has said that
apartheid was a crime against humanity.
Was it torture?
It was, but again.
South Africa wasn't a party.
Where does that leave us?
The same place as Haiti.
And that's what happened.
In South Africa there was a deal where
there was a truth commisison, there was
amnesty.
There were not prosecutions of many of
the leaders of the apartheid regime.
And the international community not only
endorsed it, but helped negotiate it.
How about the case of Cambodia, the
killing fields?
We've talked about that, so this is
review.
Grave breaches?
No, it wasn't an international armed
conflict.
Other war crimes?
Yes, in some cases there was fighting
that was going on when Pol Pot was taking
over the country.
Was it genocide?
We're not sure.
It depends on whether the cases against
the killing of all the people who were
relocated from the cities.
Or was it a case just against some of the
victims?
Or dealing with some of the victims like
the Vietnamese.
And some of the smaller religious groups.
Was it a crime against humanity?
Absolutely.
And was it torture, again?
Cambodia wasn't a party to the torture
convention.
So, where does this leave us?
Could there have been a peace for justice
swap in Cambodia?
There could have been.
It came close to that.
But the international community decided,
nonetheless, to create a Cambodia
tribunal for prosecution.
Didn't do so right away.
That's another issue.
It waited 30 years and sometimes
international justice has to be patient.
Sometimes you swap justice for peace,
only temporarily, and ultimately justice
catches up.
Let's look at the situation of Bosnia,
1995, the Srebrenica massacre.
Was it a grave breach of the Geneva
Conventions?
Absolutely.
You had troops that were supported and
controlled by Serbia who were committing
atrocities in Bosnia.
And that's what the international
tribunal decided.
There is a duty to prosecute in such a
case.
Other war crimes committed as well.
Genocide, the tribunal said, absolutely.
7,000 people who were Bosnians were
killed by the Serbs because of their
ethnicity.
And they were wiped out.
Also a crime against humanity.
And torture as well.
And interestingly, Bosnia had ratified
the torture convention in 1993, two years
before Chevronista.
So for all these reasons there could not
have been a justice for peace swap.
And that's why you saw the people
ultimately facing justice, both before
the International Criminal Tribunal for
the former Yugoslovia.
But also in courts in Bosnia, in Serbia
and Croatia.
Iraq 1988, we talked about this is
reviewed.
Grave breaches?
No, not against the Kurds who were people
that were also part of the domestic
population.
Was it linked to an international armed
conflict?
If it was, then it could have been a
grave breach.
Other war crimes the situation of
attacking the, the Kurds seemed to be
very one sided.
There wasn't actually a conflict between
the Kurds and the government it was just
the government dropping bombs.
And it requires more than that to be the
other war crimes in some people's view.
Now again if this is linked to the
broader war with Iran and that would have
been something that would've had to be
tried.
You could have prosecuted those.
Genocide, that's what the court decided.
Crime against humanity, absolutely.
Torture, again Iraq was not a party to
the Torture Convention.
I think you're seeing a pattern here.
The Torture Convention is very strong but
not a lot of countries where torture
occurs have had the, the temerity to
ratify the convention.
Knowing full well that someday, their
leaders could be prosecuted under it.
Syria in 2013.
Now, this is being taped a little bit
before this'll be aired, so I'm not
exactly sure what will unfold in the next
couple of weeks in Syria.
But is it grave breaches at this point?
No, it's an internal armed conflict, and
grave breaches only apply in an
international armed conflict.
Are there other war crimes?
Yes, the international committee of the
Red Cross says that the fighting on both
sides is high enough.
That it, it counts as a civil war, and
therefore the war crimes that are
occurring are crimes that trigger
universal jurisdiction.
But not the duty to prosecute.
Genocide, well, at this point, it doesn't
look like there is, I'm not sure who the
victim group would be.
Because it's basically the government,
which is made up of several groups
Killing the opposition which is made up
of several groups.
And doesn't seem be because of their
ethnicity, race or religion or
nationality.
Crimes against humanity absolutely, 60000
people have been killed to date its
widespread, its systematic and its a
torture once again.
Syria is not party to the torture
convention.
Now in Syria, there have been, the
suggestion raised.
That the whole thing could be solved if
President Assad would merely step down
from power and go to Russia.
What does this tell us?
If he does so can the international
community say that doesn't violate
international law?
That tells us that is, in fact, the case.
This is a situation where they could swap
justice for peace.
Now does it make sense to do so?
That's a question that often is at the
subject of great international
negotiations.
Just because it's legal to swap justice
for peace doesn't mean it's a good idea
to do so.
And what happens, as we said earlier in
the class.
Is that when you make these kinds of
swaps, you may be sowing the seeds for
future conflict.
You may be sowing the seeds for vigilante
justice.
You may be sowing the seeds for
disrespect for the law.
And so this is a question that is really
up-front in the international community,
every couple of years, including right
now in a situation of Syria.
Now let me end with a preview of next
class.
So far, we've been going over today.
The international crimes of grave
breaches of the Geneva conventions.
Crimes against humanity genocide and
torture.
And we've talked about the contours and
the definitions of those crimes and also
whether the duty to prosecute applies or
does not.
Next class we're going to look at two
more really important international
crimes.
We're going to look at the crime of
terrorism.
And the difficulty of defining that
crime.
And then we're going to be looking at
modern day piracy.
A crime most people thought had been
snuffed out 200 years ago that has come
back with a vengeance.
So, until next class, please do the
readings and I look forward to seeing
you.
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