MuseumDESCRIPTION:
Diane Orentlicher, professor of International Law at Washington College of Law at American University, discusses recent decisions related to impunity made in the International Court of Justice and the International Criminal Court and how these decisions will play out over the next few months.
TRANSCRIPT:
JERRY FOWLER: My guest today is Diane Orentlicher. She is a professor of International Law at Washington College of Law which is part of the American University in Washington. She previously served as United Nations Independent Expert on Combating Impunity. Diane, welcome to the program.
DIANE ORENTLICHER: Thanks Jerry; it is good to be here.
JERRY FOWLER: Diane, there were two decisions related to impunity that were made in the Hague in the Netherlands recently; one pertaining to Bosnia, which was made by the International Court of Justice; and one pertaining to Darfur, made by the Chief Prosecutor of the International Criminal Court. To begin, I wanted to start with the basics. What is the difference between the International Court of Justice and the International Criminal Court?
DIANE ORENTLICHER: The International Court of Justice is a court that can only hear cases between states, so the kind of case that would come before it is one in which at least one state alleges that another state or group of states has violated international law. In contrast, the International Criminal Court is just that; it is a criminal court that can bring charges when it has jurisdiction over individuals who commit certain international crimes.
JERRY FOWLER: I believe the International Court of Justice is technically part of the United Nations, but the International Criminal Court is not.
DIANE ORENTLICHER: That is right; the International Court of Justice is, in the words of the United Nations charter, the principle judicial organ of the United Nations. Although the United Nations played a big role in launching the International Criminal Court and has a relationship with it, the International Criminal Court is an autonomous court.
JERRY FOWLER: Let us turn to the decision that was made by the International Court of Justice, which is sometimes called the ICJ, concerning Bosnia and its case against Serbia. What was that case all about?
DIANE ORENTLICHER: The case was brought in 1993—and you have to go back and remember that at that time, Bosnia was in the midst of an extraordinarily violent armed conflict in which a campaign of terrible atrocities was being committed on an ethnic basis; it was out of that conflict that the term ethnic cleansing arose—so while Bosnia was really in the throws of this terrible, terrible series of atrocities, it turned to the International Court of Justice for help, and it brought a case against the country that at that time was known as the Federal Republic of Yugoslavia alleging that Yugoslavia had violated the Genocide Convention in Bosnia itself. Although the allegations were fairly complex, they boiled down to a basic pattern which was that the authorities in Belgrade were providing all kinds of support to the Bosnian Serbs who were actually carrying out the atrocities in Bosnia. The basic claim that Bosnia brought before the Court was that the government in Belgrade had violated the Genocide Convention in a number of different ways through its involvement in support of Bosnian Serbs who were committing genocide, according to the government of Bosnia.
JERRY FOWLER: Setting aside the ultimate decision, what was the relief that Bosnia was asking for? What would the International Court of Justice be able to do about this case?
DIANE ORENTLICHER: First of all, if you sort of go back in time and remember when this case was brought, initially Bosnia requested something that we would call here a preliminary injunction. They wanted the Court to immediately tell the authorities in Belgrade to stop doing what they were doing and to take immediate measures to prevent any further act of genocide; and in fact the Court provided that type of order very soon after the case was brought. In the larger picture, Bosnia was seeking a judgment that the Bosnian authorities had violated the Convention, which was itself important to Bosnia, but also they were seeking compensation for the injuries that the country suffered and many, many victims suffered as a result of what they claimed amounted to a genocide.
JERRY FOWLER: One question that would arise in regards to that is if the Court tells the Federal Republic of Yugoslavia to do something and they do not do it, what happens then? In the domestic system, if a court issued an order and someone defied it, then the authorities could enforce the Court order, but how does that work on an international level?
DIANE ORENTLICHER: The most significant recourse that a party would have is to try to get a judgment enforced by the Security Council. There is a procedure under the United Nations charter for bringing a judgment of the International Court of Justice before the Security Council and saying, “This party has been ordered to do something, they are failing to do that, and we want you to do something about it. In practice, it turns out it is very, very hard to do that. The Security Council, of course, is the ultimate political body, and often gets strung up in its own politics and has been extremely, extremely reticent to enforce those kinds of judgments, and recourse has not been sought very often before the Security Council in any case. In practical terms, a judgment of this kind often creates a basis for political activity. For example, right now, the prosecutor of the Yugoslavia War Crimes Tribunal is using the judgment that was issued a couple of weeks ago to try to encourage governments to press Serbia to hand over people who have been indicted by the Yugoslavia Tribunal. She is trying to use a legal judgment to get governments to do something political.
JERRY FOWLER: How effective is that effort?
DIANE ORENTLICHER: It has just begun, but I think the fact that she is doing this principally with respect to someone who was indicted by the Yugoslavia War Crimes Tribunal twelve years ago, and who nonetheless remains at large, and the fact that so much time has transpired without his being surrendered really sort of highlights the weaknesses of enforcement in this whole process, but certainly it is her hope that this new judgment will give her a stronger foundation and new impetus to press authorities to comply with the duty to punish genocide.
JERRY FOWLER: You have mentioned a couple of times the passage of time and the fact that this Bosnia case was first filed in 1993, and now this decision has just come down in 2007. Why did it take so long for the International Court of Justice to make a decision?
DIANE ORENTLICHER: There are a number of reasons, some are kind of normal reasons and others are peculiar to the facts of this case. The usual reasons are that the International Court of Justice tends to be very flexible about granting requests by the parties before it for an extension of time to file their pleadings, and that happened a fair amount during the course of these proceedings, but the reasons that are much more particular to this case have to do with the changing political situation both in Bosnia and in Yugoslavia during the course of the proceedings. Over the time that this case has been pending before the Court, the country that was in affect the defendant in this case because a different country several times; it was the Federal Republic of Yugoslavia when the case started, then it became Serbia and Montenegro, and then it became Serbia before the case was done, and those changes in the identity of the defendant state often gave rise to questions about whether the Court had jurisdiction, or still had jurisdiction. In addition, Serbia was admitted to the United Nations in the year 2000, and the fact that it was admitted formally at that time led the Serbian party in this case to once again question whether the Court ever had jurisdiction over it. Its argument was basically, “During the period that this case was brought, we were not recognized as a member state of the United Nations, and to some extent, this Court’s jurisdiction turns on whether we were. Now it is clear that we were not, so we want you to reconsider jurisdiction.” There were those kinds of very unique jurisdictional questions. On the side of Bosnia, which had brought the case, there was another complication that I have never seen before in a case like this. The country has a complex political structure in which there is a rotating presidency among the three main ethnic groups, and during the periods when the Bosnian Serbs headed the presidency, the Bosnian Serbs represented to the International Court of Justice that they no longer consented to the case, that they were withdrawing Bosnia’s Case. Then the other authorities would say, “Wait, that is not true; we want to maintain our case. We do not agree to withdraw it.” There was a lot of back and forth over the question whether Bosnia, which brought the case, really wanted to proceed with it. It took a lot of time to sort that out. It is certainly, sadly ironic that on a case that would demand special urgency, it took particularly long for the Court to reach judgment.
JERRY FOWLER: Then once it reached judgment, the sort of threshold question, as the lawyers say, or the basic question was whether there was genocide committed in Bosnia, and what did the Court decide on that?
DIANE ORENTLICHER: The Court said, as far as whether genocide occurred, it said yes with regard to the massacre at Srebrenica in July of 1995. It did not find that Bosnia had made out a sufficient case of genocide with respect to other atrocities in Bosnia, only with respect to Srebrenica.
JERRY FOWLER: I think you are going to have to unpack that a little bit because to a lot of observers it seems anomalous that the killing of something in the neighborhood of 100,000 people, over an extended period of time, who were all marked out by their identity—religious and ethnic identity—is not genocide, but the killing of 8,000 in a relatively short period of time is genocide.
DIANE ORENTLICHER: I am not sure that I can make sense of it because it is a perplexing judgment. I can try to explain it as best I can.
JERRY FOWLER: We will settle for that.
DIANE ORENTLICHER: I think that what the International Court of Justice did was in a sense, it kind of subcontracted its fact-finding out to the Yugoslavia War Crimes Tribunal, which has been operating since 1993 and has prosecuted quite a substantial number of cases, including the atrocities in Bosnia, and at a number of times in its judgment, the International Court of Justice said, “The Yugoslavia War Crimes Tribunal has tested the evidence in a lot of cases, it has gone through a rigorous fact-finding process, and we are going to benefit from that, and we are going to give a lot of credence to its findings when it has reached a judgment in the case. We are not going to attach a lot of weight to its indictments or its charges, but we are going to attach a lot of weight to its judgments.” It happens that the Yugoslavia War Crimes Tribunal has only found genocide with respect to Srebrenica, so there is not a lot of analysis in the International Court of Justice judgment about whether the requirements for genocide were established. There is lots of discussion of the evidence, or I should say, recounting of the evidence, but in terms of the actual legal analysis, it relied to a great extent on the fact that the Yugoslavia Tribunal has not yet found a genocide to occurred, other than in the context of Srebrenica. This, to some extent, may be another product of freakish timing. As you know, Slobodan Milosevic was charged with genocide, with respect to Bosnia. Had he lived long enough for there to be a final judgment, and had the Yugoslavia War Crimes Tribunal found him responsible for genocide, not only in Srebrenica but elsewhere in Bosnia, then the outcome of this case might have been different. There are now two defendants who have been indicted for genocide in Bosnia, not only in Srebrenica, but elsewhere who remain at large. If they were some day apprehended, and prosecuted, and convicted of genocide, there may well be judgments by the Yugoslavia Tribunal that is more far reaching than the one that was handed down by the International Court of Justice, but at the time, the International Court of Justice rendered its judgment—and bearing in mind that it relied very heavily on the fact-finding of the Yugoslavia Tribunal—at that point, the ICTY, the Yugoslavia War Crimes Tribunal, had not found a genocide to have occurred, except in the context of Srebrenica.
JERRY FOWLER: What I hear you saying is that in spite of the fact that fourteen years has passed since the case was brought, and basically, twelve years has passed since the end of the conflict in Bosnia, we still do not have any definitive judgment of whether we can say what happened was genocide or not.
DIANE ORENTLICHER: That is right, except again, in the context of Srebrenica.
JERRY FOWLER: Expect in Srebrenica, exactly. We should add that the Court was only focused on the question of genocide because the case was brought under the Genocide Convention, and so it did not deal with the question of whether crimes against humanity were committed, which is somewhat broader, but in some ways, a serious category of crimes.
DIANE ORENTLICHER: Right, and the court noted at several points that its jurisdiction was limited to the Genocide Convention. I think it was trying to say, “Look, we are not exonerating the respondents states of very serious crimes; we just do not have the jurisdiction in this case to get into those other crimes.” I think it was at some pains to say, “This is not a complete exoneration for conduct outside the context of Srebrenica; we just have to keep our legal blinders on and just look at the question of genocide.”
JERRY FOWLER: I want to turn in just a second to the other development that I mentioned, the International Criminal Court, but before I do that, the last thing I wanted to ask you about this International Court of Justice decision is that the only sense in which it found Serbia, or what used to be called the Federal Republic of Yugoslavia, responsible was that it did not prevent the genocide at Srebrenica, but even that decision was a very narrowly based decision, suggesting that the reason Serbia was guilty was not that they did not prevent it, but because they did absolutely nothing.
DIANE ORENTLICHER: First of all, I am going to say that the finding that Serbia failed to prevent and to punish genocide, that finding is quite significant because it is the first time in history that an international court has judged a state, responsible legally, for violating the Genocide Convention. That is not a small thing. I think that that conclusion tends to be eclipsed by the fact that Serbia was not found to be directly responsible for genocide, or even responsible for being complicit in genocide. I think the public reaction often stops at that finding, but the Court did go on to say that Serbia violated the Genocide Convention because it did not prevent it. I think in this part of the decision, the Court was in some ways quite far-reaching. Up until that point of the decision, it was very narrow in its approach, both in terms of the standard of proof it required, its analysis of the evidence, all of those things were applied in a very narrow way, and then it all of a sudden comes to the duty to prevent genocide and it reached out in several ways. First it held that the duty to prevent genocide is a real obligation; it is not just sort of rhetoric, it is not just the kind of rhetorical plea you make at the beginning of a treaty. It is a real obligation. It applies to conduct outside the territory of the state that is said to be in violation of the duty to prevent genocide, and that has got really huge implications. It means that a country like the United States has a duty to prevent genocide in a country like Darfur; not only in its own territory, but abroad. A state party to the Genocide Convention has a duty to prevent genocide elsewhere. That was quite significant. What it held was that a state party to the Genocide Convention has to take all measures to prevent genocide that are within its power and that might contribute to preventing genocide. Again, it is a fairly broad obligation. It said another thing that I think is quite significant for the kinds of dilemmas countries face all too often; it said that the duty to prevent genocide is engaged when there is a serious risk of genocide. We do not have to wait until we are legally certain that genocide will occur; we have a duty to act when there is a serious risk. That means that states should not get bogged down in endless debates about whether a situation that is raging before their very eyes constitutes genocide under international law. They have to act when there is a serious risk. What that means among other things is when we think back on recent dilemmas about whether states have done enough to prevent genocides unfolding before them, think back to 1994 when there was a big debate about whether the United States should try to jam a radio station in Rwanda that was inciting people to commit genocide. If we look back at that debate in light of this opinion, what the opinion said was, “A state that has the capacity to do something that might seriously contribute to preventing a genocide has a duty to do that, has a duty to take that action.” In a lot of ways, I think this is one of the more significant contributions of the opinion. Its limit, I suppose, is suggested by the fact that the Court did not order any damages on the part of Serbia for its failure to prevent the genocide. The other significant finding of the Court was that Serbia had violated its obligation, under the Convention, to punish genocide, and specifically, it had failed to cooperate with the Yugoslavia War Crimes Tribunal, and even more specifically, it failed to surrender Ratko Mladic, who has been sought for years now for genocide and other crimes in Bosnia. Both of those findings were important reaffirmations of the very real obligations states have under the Genocide Convention.
JERRY FOWLER: Let us turn very quickly to the International Criminal Court. The Chief Prosecutor has applied for arrest warrants for two identified individuals, one a junior minister in the Sudanese government, and the other a leader of the so called Janjaweed militia. What will happen next in that case?
DIANE ORENTLICHER: He has requested a pre-trial chamber to issue a summons, naming those two individuals and asking them to appear before the Court for what is called initial proceedings which are something like an arraignment in our process. The pre-trial chamber has to decide whether to grant this request, it has to determine in affect whether there are reasonable grounds so believe that these two individuals named by the prosecutor did commit the crimes alleged. If it does decide that that standard has been met and that a summons would be sufficient to ensure their appearance before the Court, they would grant the prosecutors request and issue a summons. They could decide that a summons is not strong enough, in which case they would issue an arrest warrant for these two individuals. Then they would, hopefully, be brought before the Court and have an initial hearing in which they would be told of the crimes alleged against them and advised of their rights. At that point, there would be another hearing for confirmation of charges that the prosecutor intends to press at trial, and so there would be another opportunity to test the prosecutor’s case. If that proceeding ends up with confirmation of the charges, the case would proceed to trial.
JERRY FOWLER: What are the chances that these individuals are ever going to appear? What would be necessary to get them to appear?
DIANE ORENTLICHER: That is the hardest question of all.
JERRY FOWLER: That is why I saved it for last.
DIANE ORENTLICHER: The prosecutor did a very thorough investigation, and if you read the indictment which is, I think, about 94 pages long, it is a meticulous presentation of evidence against these two defendants, so he has a strong case, but it does not mean that it is going to be easy by any means to actually secure their presence at trial. They are both in Sudan. The government of Sudan does not accept the authority of the International Criminal Court. At this point, there is a standoff between the Court and the government of Sudan. This is a case that as you know was referred to the International Criminal Court by the United Nations Security Council, so it is very much incumbent on the Security Council not to let the prosecutor hang out there. He did what the Security Council asked him to do which is to investigate these crimes. At this point, very serious pressure has to be rallied around the government of Sudan to surrender these people. I think this is a situation that cannot be allowed to drift. We have seen with the Yugoslavia War Crimes Tribunal what can happen. We have seen that two of the most senior suspects indicted by the Yugoslavia Tribunal have managed to elude capture for 12 years, but we have also seen that when pressure is brought to bear on a state, it is possible to apprehend people who the state may not want to initially surrender. That happened with Slobodan Milosevic who was indicted when he was head of State. It was unthinkable at one time that the Yugoslavia War Crimes Tribunal would actually be able to secure the presence of Slobodan Milosevic in The Hague, but they did. This is the time to mobilize; it is a time to strategize and to really bring very serious pressure to bear on the Sudanese government.
JERRY FOWLER: Diane Orentlicher is professor of International Law at Washington College of Law which is part of the American University. Diane, thanks for taking the time to be with us.
DIANE ORENTLICHER: It is my pleasure Jerry.
