War Crimes and the Int'l Criminal Court

As you know today's topic is War Crimes and the International Criminal Court. And we are lucky to have today someone who has great experience with the establishment of that court and monitoring some of its activities. Judith Armatta is an attorney who has spent approximately in the last 10 years paying attention to the International Criminal Court in a variety of ways. She has been a liaison to the coalition for International Justice serving as someone who observed, monitored, analyzed and commented on the workings of that court, specifically related to the trial of Slobodan Milosevic. She served also as a legal consultant to the coalition for foreign International Criminal Court working on the establishment of a trial monitoring project. She is the author of a new book with a great title called Twilight of Impunity, The Trial of Slobodan Milosevic, due out shortly. She also has worked with USAID and other organizations in the communities in this general area. Serbia, Macedonia, Montenegro, helping them with various judicial reform efforts. This follows it's hard to believe when you read her resume that she is not a 104. She has done so much. This followed 22 years of work in Oregon working on a variety of domestic abuse and women's human rights issues. She also had previously worked for the ACLU and as a legislative aid and case worker for two Congressmen in Oregon and Ohio. She has written for the that international - Coalition for International Justice she has written like 300 articles just for that but has myriad of other articles written in a variety of publications including the International Herald Tribune and The Chicago Tribune, the Yugoslav law journal et cetera and of course, she does lectures all over the world. We are very lucky to have her located here so that she can address this topic today. Please join me in welcoming Judith Armatta. Well after hearing that introduction I want to go home and go to sleep. It doesn't sound like me. I am sometimes wonder why it is that I seem to pursue issues of violence and atrocities. How can I start out speeches with jokes? I haven't learned that one yet and so you know, it's much better to have that kind of nice warm fussy feeling with your audience instead of having a noon time audience to speak about atrocities with. So I am sorry for that. I am very pleased to have the opportunity of speaking with you today about an issue I consider critically important for our war weary world. As war has been with us throughout recorded history so have efforts to tame it, perhaps mirroring the split within the human psyche. It continually amazes me how stalwart is the desire for a humane and just given the ruthlessness of our warrior selves. At the end of World War II face to face with the unimaginable horrors of the holocaust a few courageous souls steered the human community away from revenge toward justice. As Justice Robert Jackson, Chief Prosecutor at the Nuremberg trials so eloquently stated that, "For great nations flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason. Pierre Hazan author of "Justice in A Time of War" writes that the Nuremberg trials were actually the crucible of the culture of law in human rights and played a major role in the formation of a universal conscience of humanity. The Nuremberg legacy is not just a legacy on the limits of mistreatment of combatants, prisoners of war and civilians in time of war. I suggest its primary legacy is the codification of crimes against humanity in the Nuremberg Charter. These are crimes so egregious that they offend our conception of what it means to be human. The eminent jurist, British jurist Lord Geoffrey Robertson describes them thus, "These were crimes that the world could not suffer to take place anywhere, at anytime because they shamed everyone. They were crimes against humanity because the very fact that a fellow human could conceive and commit them diminishes every member of the human race. For this precedent alone the Nuremberg judgment was one large legal step forward for human kind." The Nuremberg legacy lay dormant for more than 50 years. While cold war years protected their respective tyrants. But in 1993 it was called to line by a colleague I respect very much, Mirko Klarin. A Serbian journalist who has made his life's work the exposure of truth and the punishment of those guilty for massive crimes committed in the process of Yugoslavia's destruction. That was 1991. Two years later the United Nation's Security Council established the first International Tribunal since Nuremberg, The International Criminal Tribunal for the former Yugoslavia. The next year, the UN birthed a second ad hoc tribunal to respond to the horror in Rwanda. Though both were created with a high degree of cynicism and little intent to actually hold individuals accountable, those who carried the torch of justice since Nuremberg stepped up to make their promises a realty. The two ad hoc tribunals were the stepping stones that led to the permanent International Criminal Court which came into being in July 2002 and is now supported by 104 member states. Sadly the United States is not one of them. The ICC has a very narrow remit. It is only to investigate and try war crimes, crimes against humanity and genocide and if the members can ever agree on a definition, the crime of aggressive war. The ICC is a court of last resort. It will only step in when state legal action is not possible. The accused will be individuals, the most responsible, those who exercised the most power over events. Presently the ICC is investigating conflicts in four countries, all in Africa, the Central African Republic, Uganda, the Democratic Republic of Congo and Darfur, Sudan. The Chief Prosecutor has issued indictments for five members of the Lords Resistance Army in Uganda for widespread sexual slavery, murder and brutalization of children over two decades. None of the five are yet in custody. The ICC indicted Thomas Lubanga, leader of a militia group in the Democratic Republic of Congo for using children as soldiers and sex slaves. He will be the first person tried at the ICC, possibly beginning this summer. Just this week Chief Prosecutor Luis Moreno-Ocampo indicted two men from Sudan, one a militia leader, the other a former minister for the interior for war of the government for war crimes and crimes against humanity. These initial charges demonstrate some of the challenges facing the ICC. The five LRA indictees from Uganda fled the country before they could be arrested. In Sudan the government opposes extradition and trial before the ICC, maintaining local courts are capable of rendering justice. Government officials and their surrogate militias are responsible for the massive displacement of people, rapes and murders in the Darfur region. Enforcement of its warrants will continue to plague the ICC. Another challenge confronting the ICC is real politic, preferred by diplomats through the ages. Real politic is states, including the United States, making a deal with Charles Taylor, former President of Liberia, if he would step down he would get asylum in Nigeria, allowing a state to move into a more peaceful democratic period. This is after a very bloody war for diamonds where many people, civilians innocent civilians were killed and many more were mutilated to having there limbs chopped off. You can the see the results of that in Sierra Leone today. The same was done with Idi Amin, when he took up residence in a palace in Saudi Arabia after looting Uganda's treasury and torturing and murdering thousands of people. But the US and other states changed their minds and pressed Nigeria to extradite Taylor to Sierra Leone to face trial in the ad hoc tribunal established there. He is now in The Hague awaiting trial before the Special Court for Sierra Leone. That impunity doesn't work to establish peace is well demonstrated by the results of granting amnesty to the Revolutionary United Front in the Sierra Leone Civil War in 1999. It allowed the RUF to re-group and resume their atrocities for two more years. As with the ICTY, the ICC is challenged to develop a body of law that is an amalgam of two legal systems. The Common Law and Civil Law systems and to train judges schooled in the different systems to apply this new creature. The ICTY experienced problems when the prosecution introduced plea agreements. Civil law judges were suspicious and weary. They didn't like the prospect that an accused could secure a lesser sentence if he or she plead guilty, cooperate with the prosecution by providing a full accounting and information for use in other trials, testifying in other trials and offering an apology. In one case the trial chamber accepted the plea agreement then handed down a stiff sentence well beyond what the prosecution requested, thereby making it very difficult for the prosecution to make plea agreements with other indictees. Eventually the appeals chamber reduced the sentence. The ICC is challenged to demonstrate fairness and universality. If all its cases come from Africa, it will not be seen as fair. If the big powers like the U.S., China and Russia keep themselves beyond the reach of the permanent criminal court resentment will grow. If there is time we will talk about universal jurisdiction and how that principle may bring the United States and China within the rule of law, at least attempts at doing that. Residing in The Hague far away from where crimes under investigation have been committed, the ICC must reached out to the people in those States if their verdict is to be useful to them at all. Video and even radio transmission of proceedings into Congo, Darfur and other places may not be possible due to the lack of widespread availability of modern technology or because of ongoing conflict conditions. Efforts must be made to bring journalists from the home country to The Hague to support them in this expensive western city and to assure they receive timely visas that will cover the period of proceedings. This was quite a problem for Balkan journalists trying to attend trials at the ICTY. Visas were limited to three months, not renewable until the journalists returned home and maybe not then. Local media could not afford to pay for journalists to reside in The Hague for long periods of time. NGO assistance had to be secured. The same problems will face the ICC. As the Darfur investigation has shown interviewing witnesses in the conflict zone can be impossible. All witnesses, the ICC, interviewed as the basis for its recent indictments were interviewed outside Sudan. Many of those who testify will require protection if they return home. If that is too dangerous the ICC will need to relocate them and their families giving them new identities. For atrocities committed in Uganda and the Congo the ICC prosecutor has chosen to issue very narrow indictments limited to use of child soldiers in combat and as sex slaves. Victim's rights groups have strongly criticized such narrow charging as it virtually ignores the atrocities committed against other civilians, systematic rape, murder and torture and the looting and destruction of homes. Because these crimes have not been charged those who have been victimized by them will not be able to participate in ICC proceedings as the statute allows or received compensation from its victim's trust fund. As important, a large number of victims will be omitted from the healing process that a trial offers. The acknowledgment of their suffering by a world community standing with them to resolve their sense of belonging in the human community - to restore their sense of belonging in the human community from which their bond has been broken by the violence perpetrated against them. The ICC is erring on the side of caution, to assure the evidence unquestionably supports the charges, to assure success in their first trial. Perhaps the prosecution also seeks to make the trials more manageable by focusing on relatively few charges. Whatever the reason, for victims to see the ICC, as a way to secure justice, a tribunal will have to take more risks. A looming obstacle for the ICC is the non-participation of the United States and other big powers. The U.S. has not just, not participated, it has actively worked to undermine the ICC. Congress passed the American Service Member's Protection Act familiarly known in the Netherlands as The Hague Invasion Act, because it gives the United States military authority to invade any country where its nationals are being held to answer before an International Court. The U.S. also negotiated Bilateral Immunity Agreements (BIAs) with a 101 States. Under a BIA a State promises to not turn over any U.S. citizen to the ICC in exchange for receiving economic and military aid from the United States. Over 50 members of the ICC have refused to sign a BIA. Those who have signed are the States who can least effort afford to relinquish U.S. aid. Recently the winds of have change have blown through the White House, at least in some spheres. After four years experience with the ICC where complaints against the U.S. have been rejected for lack of evidence, or a lack of jurisdiction, the U.S., not being a member, the United States Government seems less afraid it will be hauled before the ICC on politically motivated charges, regrettably. At any rate the U.S. is now vocally supporting ICC investigations in Uganda, in the DR Congo and Darfur where the U.S. earlier pronounced genocide was occurring. In addition the U.S. no longer withholds funds for military training to States that refuse to sign BIAs with the exception of Venezuela and two other States. We found it advantageous to have our allies and well trained allies, well trained to respond to global terrorism. Economic aid still has not been restored however. As well as harming the ICC, the U.S. is also harmed by its non-participation. Even before the Iraq War, Abu Ghraib and Guantanamo Bay, - our refusal to join the ICC hurt the image we once cultivated as a world leader in human rights and rule of law. After the Iraqi invasion, torture of prisoners and holding unlawful combatants incommunicado denying them fundamental rights guaranteed by the covenant on civil and political rights, we are pretty much seen as a rogue State. There is a benefit to the ICC for U.S. non-participation, we can't do anything more to weaken it from the inside as we did when its statute was being drafted. For example, allowing the Security Council to veto prosecutions. I want to turn now to David Morrison's fine article in Great Decisions 2007. I congratulate him on making understandable, something as complex as a labyrinth, where one path leads to another, leads to another never seeming to end. I do have to take issue with a statement that history and victims considered tribunal's dismal failures at least as far as punishment and deterrence. The verdict of history is still out. As you might imagine victims are for a wide variety of opinions. Both these ICTY and ICTR have handed down life sentences. The former for the Commander who lead the three and a half year Siege of Sarajevo, the later for the Prime Minister convicted of genocide. I admit sentences are inconsistent, though there are efforts to change that. The inconsistency is largely derived from different philosophies of sentencing in the judges home jurisdictions. Sentencing law at the Ad Hoc Tribunals is in process. We must work to refine it in a way that assures more uniformity. The ICC will take a lesson from this. As for deterrence we do know that impunity leads to more crimes. While the Shreberniza genocide occurred after the ICTY was up and running. Those responsible had no reason to believe they risk being brought before it. International players continued to negotiate with those they knew were most responsible for the atrocities. We also know that identified war criminals are cognizant of what goes on in the International Tribunals. Milosevic disclosed in his trial that the leader of the Bosnian Serb Army, General Ratko Mladić sought and received a guarantee from President Jacques Chirac of France that he would not be sent to The Hague in exchange for turning over two French pilots he had kidnapped. The political leader of the Bosnian Serbs Radovan Karadzic tried to hinge his state to Mladić's guarantee, but didn't succeed. It is rumored that he later secured a similar guarantee in exchange for removing himself from politics. Another measure of the tribunal's success can be found in their statistics. Despite lacking financial support and cooperation from U.N. members to secure information and make arrests, the ICTY became a fully functioning court; built up from nothing. Since 1994, it has concluded proceedings against one hundred accused; five have been acquitted, 48 has been sentenced, 23 are currently at trial with another 17 in the pre-trail stage and 18 pending appeal. The two of the most wanted remain at large is not the fault of the tribunal but of the Internet, it's international supporters and most recently elements of the Serbian ruling class including its bodyguards and police henchmen. The ICTR has a similar noteworthy record of convictions. It has also convicted the first head of government, Jean Kambanda for genocide. Mr. Morrison criticizes their tribunals for trying only a few of the perpetrators and only the higher ups. Precisely that is what the tribunals were designed to do. They were never meant to try all of the guilty. The intent was that they try the most responsible and at least some of those accused on the most heinous crimes. The foot soldiers, so to speak, were to be the responsibility of domestic courts. Traditional courts like the Gacaca courts in Rwanda or special domestic war crimes courts established for the purpose such as the one in Bosnia. My experience tells me that not all victims found the tribunals dismal failures. Even though Milosevic avoided a verdict in his trial, I believe some witnesses who gave testimony against him, felt satisfaction. One of them was ____, a frail elderly man with a presence in court that was anything but. His son came to him one morning and said, "Father, my life is over." His wife and child had been killed. They were found among 20 bodies in the family compound. 19 of whom were women and children. When Milosevic insisted that people had been killed by NATO bombs, Mr.____ thundered, "No." And described how the children were taken from the basement and massacred, how the house was burnt. He said people told him not told him not to go there because they feared he would have a heart attack. My son said, "It is a sin to see children like that." With what kind of human feelings can someone commit a crime of this kind against children, young people, old people? Though he was crying, his voice remained strong and clear. Judge May, the presiding Judge asked Milosevic, if, in light of the witness's condition he had any further questions? I do I do, he answered, then said, "War is a crime in itself, and it is the innocent who suffer. Is it clear who created the war? You are furious because of the death of your family. Everyone would feel that way. How it came to be war?" Mr. ____ interrupted, "You! You, as president, by sending criminals, the most evil criminals, to commit crimes against children in the eyes of their mothers." At the end of his testimony he asked the judges if he could say something. It wasn't done. But the judges allowed it anyway. Mr. ____ turned to Milosevic, looked him squarely in the eye and said, "I just want to ask you, how could you kill women and children? Have you no human feelings?" There was utter silence in the court room. Milosevic made no response. Other witnesses also had the chance to confront Milosevic, the man they blame most for the loss of loved ones and the destruction of their way of life. I truly don't think they believed the tribunal was a dismal failure. As Eric Stover concluded after conducting a study of victim witnesses who had testified at the ICTY. For many study respondents merely being in the court room with the accused while he was under guard, helped to restore their confidence in the order of things. Power, one witness, said flowed back from the accused to me. If only for a brief while this witness finally held sway over his personal tormentor and his current community's wrong doer. It was at moments like these that tribunal justice what is was at its most intimate. Tribunals serve another important purpose. They provide a way for the guilty to repent and gain some peace with the grievous harm they have caused. In the Milosevic trail, a young Montenegrin conscript called the prosecutor and asked to testify. He described being ordered with a few other soldiers to kill a group of 12 civilians they had found hiding in a house. Women, children, old people, even an infant, he told the court what happened. "The people shot at began falling down one over the other. What I remember most vividly is how I remember this very vividly. There was a baby shot with three bullets, screaming unbelievably loud. I came forward to give my evidence because I wanted in this way to express everything that is troubling me. That has been troubling me for the past three years, since I completed my service. Never a night goes by without my dreaming of that child hit by the bullets and crying. I thought if I came forward and told the truth that I will feel easier in my soul. It is the only reason I am here." During cross examination Milosevic claimed not a single officer ordered him to kill civilians. He responded. "That is not correct. I heard this, the order not to leave anyone alive and also 10 soldiers from my company can confirm it and in no way can you deny that. I was there. I heard it and you as Supreme Commander could have come down there and seen what it was like for us. You are issuing shameful orders to be carried out." Milosevic ends by asking whether any promises were made in exchange for his testimony. Mr. Milosevic, I am here of my own free will. Mr. Milosevic, when I tell this truth to the person, who in my opinion, is the most responsible for all the crimes, it already makes me you better, I don't need more. The ICTY and ICTR have also considered it contributed to the development of International Criminal Law. They held clearly for the first time that rape can be a war crime. They more clearly defined genocide in its all its permutations as they did for command responsibility, which was the responsibility of commanders for the acts of their subordinates. Mr. Morrison also claims that tribunals are all victors' justice. But is it victor's justice when the United Nations creates a tribunal. The ICTY indicted and is trying people from all sides of the bloody decade of the wars in the former Yugoslavia, Serbs, Croats, Bosniacs and Albanians. Who won that war anyway? I can't tell. There was a bit of victor's justice in the ICTR, when Chief Prosecutor Carla del Ponte began investigating crimes allegedly committed by certain Tutsi leaders. Some of the UN member states negotiated her removal as prosecutor for the ICTR. They feared prosecutions against Tutsi leaders would destabilize the region. Real politic again triumphed over justice. The ICC, a permanent International Court was created to eliminate victor's justice or at least to lessen it. It remains to be seen how successful it will be. The fate of the Darfur indictments will be an early indication, they are obviously not definitive. Mr. Morrison notes that the state leaders like Milosevic and Saddam Hussein deny the legitimacy of tribunals. They do and will continue to do so. The issue is how the court responds. In the Milosevic case the accused loudly and repeatedly proclaimed the tribunal as illegitimate and he would only participate because they gave him a forum from which to make his political case. Then he insisted on representing himself when he clearly had no intention of doing so, yet the court allowed it. That made for a fundamental contradiction in the proceedings and for a lengthy contentious trial. It was lengthy because Milosevic frequently used this time for speech making instead of cross examination, then manipulated the court into extending his time. The other contributing factor to the trials length was Milosevic's ill-health which occasioned substantial adjournments as well as much reduced trial schedule of three and a half days per week. Well, it is not without controversy. My position is that the court should have appointed council to represent Milosevic from the moment he said he had no attention of mounting a proper defense and did not recognize the court. Had that been done, it is more likely the trial would have ended with a verdict instead of with the death of the accused. Despite the lack of a verdict the Milosevic trial collected thousands of pages of documentation which will be used in other trials and will help establish a common truth as it operates to prevent revisionism. Through the subpoena power of the court as well as its prestige, the prosecution was able to obtain records that may never have come to light otherwise. They included intercepted telephone calls between Milosevic and Bosnian-Serb leaders, transcripts of secret assembly sessions and the Republika Srpska spell, where members declared, "We have done this so Muslims will cease to exist" and Milosevic's admission that he diverted money from Federal customs funds to support the Serbian forces in Bosnia and Croatia. There is no doubt mistakes were made in the Milosevic's trial and in other trials before the ad-hoc tribunals. But as one commentator has said, the enemy of justice is perfection. Jeffrey Robinson expands on this. Many mistakes have been made particularly with the inefficiency and expense in some new courts. I do think, however, that justice will have its own momentum and in time we will look back on these problems as teething troubles and future generations will be amazed that we let people like Pol Pot, Augusto Pinochet and Idi Amin live happily ever after their tyranny. In his article Mr. Morrison also addressed terrorism and how the US has sought to deal with those suspected of involvement. Until 9/11 the US dealt with terrorists through its criminal justice system. Two well known convictions are that of Ramzi Yusuf, the master mind of the two World Trade Center bombings and Sheikh Omar Abdel Rahman, sentenced to life in prison for involvement in a plot to blow up tunnels, a bridge, the United Nations, the Federal Building and the FBI headquarters in New York. After 9/11, however, the US turned to the language and machinery of war. As criminal defendants, Yusuf and Rahman received full due process rights guaranteed by the US constitution. Both were fairly convicted and will remain behind bars for the rest of their lives. For a nation at war its enemy should have been afforded rights guaranteed by the Geneva Conventions to prisoners of war. But War on Terror was an exception. The rule of law was inconvenient. It restricted US agents from doing what they thought necessary to get information and protect the country. So we now have the category unlawful combatant. A person with few of any rights. A person, who can be detained, without charge for as long as his captives want. In 2004 the President of the United States signed by Executive Order the Military Commissions Act of 2004 which gave him authority to decide when and you have to send the captive before a military commission. The prisoner had no rights to an attorney, to see evidence against him if it was considered a state secret and no right to challenge his imprisonment through the ancient writ of habeas corpus. In 2006 the US Supreme Court struck down the Act as an illegal usurpation of legislative power. In October 2006 Congress quickly passed nearly the same law by an overwhelming margin and presented it to the President for his signature as if it were a birthday gift and set up the seeds of destruction of our constitutional system. Recently a federal appeals court upheld the Military Commission's Act of 2006 as a legitimate exercise of legislative power. If the Supreme Court decides to hear the case the constitutionality of the actually will be examined. There is hope yet that constitutional freedoms will not be sacrificed on the altar of expediency. The question that needs answering is not, as Mr. Morrison writes, whether its necessary to trade-off long standing liberties to forestall the worst the terrorist might do. The question is will relinquishing long standing liberties forestall the worst the terrorist might do. Will it make us safer, I have to ask how many people were won over to Al-Qaeda by Abu Ghraib, by Guantanamo Bay, by the Military Commissions Act. A word on universal jurisdiction if there is time, how I am doing? Five minutes, okay. The concept of Universal jurisdiction is not new. It derives from customary international law that permitted trials of non-nationals for especially reprehensible crimes such as piracy and slavery. It allowed Israel to try Adolf Eichmann, the French to try Klaus Barbi, the US to try Manuel Noriega. Under universal jurisdiction Spain requested Britain to extradite it's guest Augusto Pinochet and the British House of Lords to decide to do so. Well, that was before the Jack Frost said, "No way." Belgium has tried at least four Rwandans under this theory. The ICC encourages states to adopt domestic legislation enabling the state to assume jurisdiction of those who can be charged with war crimes, crimes against humanity and genocide. It doesn't matter if the accused or any of his or her victims lives in the state assuming jurisdiction. Germany is one of the first states to adopt domestic legislation to implement universal jurisdiction. As a result the center for constitutional rights in New York, together with three other NGOs from different countries, has filed suit in a German court on behalf of prisoners in Guantanamo Bay and Abu Ghraib requesting and investigation of named US officials for ordering, aiding and abetting or failing in responsibility to prevent or punish foreseeable war crimes consisting of torture, severe beatings, stripping prisoners naked and hooding them, deprivation of sleep and food, sexual abuse and exposure to extreme temperatures. The plaintiffs alleged the crimes violate the Geneva conventions, the 1984 convention against torture and the 1977 covenant on civil and political rights of which the United States is a signatory too. Defendants include political officials such as Donald Rumsfeld and George Tenet. Military officials such as and I can't afford such as military officials such as missing here but General Miller and General Sanchez and uniquely the lawyers who provided false and clearly erroneous legal opinions when it was known and foreseeable that torture would result. Among the lawyers are the Attorney General, two Deputy Attorney Generals, Council to the Department of Defense and Council to the Vice President. Plaintiffs claim Germany is the court of last resort because the US gave immunity to all US personnel in Iraq from Iraqi prosecution because the US has not gone beyond prosecuting seven lower level soldiers for the crimes in Abu Ghraib. Because the US is not a signatory to the ICC, therefore relief cannot be obtained there and because no other international tribunal is mandated to investigate or prosecute crimes in Iraq and because recently a US Federal Court affirmed the Military Commissions Act of 2006. What are the chances of the lawsuit succeeding? Probably slim. A German court rejected an earlier version of the lawsuit because there were available remedies in the United States. Yet there is clearly a movement among states in support of universal jurisdiction to assure that rule of law applies equally to everyone. That no one is above the law, in particular the most powerful. In fact that is the belief and the hope that led to the creation of international tribunals and the permanent International Criminal Court. If time permits during questions and discussions I could discuss the truth commissions and some of the other topics for which there isn't time in my major presentation. So I would love to hear from you.