Panel 3: Transatlantic and Multilateral Cooperation
Gareth Evans: Final session. There have been many references during the course of the day to the need for further and better cooperation both transatlanticly and in the wider multi-electoral context in preventing and responding to mass atrocity crimes. This session is aimed to bring those threads together and essentially to identify the gaps which exist between that which we should be doing in terms of international cooperation and that which we are doing.
My job as chair is essentially to frame the discussion initially and then to draw out the panel on these issues rather than expressing a whole bunch of views of my own. Those who know me will appreciate that constitutes something of a trial but I’ll stick to it. And indeed, we have an excellent panel. Let me begin by introducing them. First of all, on my immediate left is Stephen Rapp, Ambassador-at-Large for War Crimes, U.S. Department of State. Before being appointed by President Obama to that position in September last year, he was Prosecutor for the Special Court of Sierra Leone, and before that Senior Trial Attorney and Chief of Prosecutions in the International Criminal Tribunal for Rwanda. Vastly experienced in all these legal strategies to deal with the situation.
Secondly, Markus Löning on my left who was recently in April this year appointed Germany’s Federal Government Commissioner for Human Rights Policy and Humanitarian Aid. Before that he was in the Bundestag German Parliament as the Development Policy Spokesman for the FDP, the liberal party. And finally but no means least, Alexandre Fasel, Ambassador of Switzerland, Ambassador of Status and Director of the UN and other international organizations division. And someone who has been very actively involved in these regional discussions about which there’s been mention earlier today held by the Swiss government in Latin America and Africa so far and intended to take place in the near future in both Europe and Asia.
In framing the discussion that we’re going to have perhaps I can do that by spilling out five things which we all know or I think could reasonably agree about without too much fuss if we sat down to talk about it. If I’m wrong in saying that any of these things are the subject of pretty much ready agreement I’ll no doubt hear about it in the rest of the session. The first thing I think we all know is that the issue now is not the lack of the generalized normative consensus but rather effective implementation. We’re in a very different space than we were in the 1990’s when there was that terribly intense gulf in the argument between the right to intervene group in the north and the sovereignty at all costs crowd in the south. And I think we’re doing pretty well these days as Francis Deng said in his discussion this morning in consolidating consensus now around the responsibility to protect principle. There were some rear guard actions since the consensus decision in 2005, serious attempts to undermine it and to reopen that consensus but in the big UN General Assembly debates we’ve now had in the last two years in 2009, 2010 it has become increasingly very obvious as Francis has said that the number of spoilers, the number of people seriously determined to overrule that 2005 consensus has diminished very rapidly and has very broad acceptance around the three pillars.
I think it’s also fair to say that normatively it’s a pretty broad acceptance that the key concept that we’re dealing with now is mass atrocity crimes broadly defined rather than being too hung up about genocide—the “G” word—with all the particular problems of legal interpretation and application that that involves. But whatever agreement there might be about the general principles, there’s still a hell of a long way to go in terms of getting agreement about effective practical implementation. I think we’d all acknowledge that number one.
The second thing I think we would probably agree about is that there are three distinct contexts in which implementation issues arise here. The first is what might be described as long term prevention or general risk reduction both before anything in the nature of an atrocity crime crisis has occurred, or very similar strategies are applicable in a post crisis peace-building environment, long term prevention addressing underlying causes. The second context is short term prevention, crisis prevention in response to early warning indicators with a hate speech or whatever that give us all reason to fear that if we don’t do something effectively preventively pretty quickly we’re going to have a major catastrophe on our hands. And the third context is that of violence mitigation when violence has broken out what can we do to prevent its continuation? What can we do to stop it?
I think we need to frame the discussion in a way that reflects those three rather different contexts because they do require different measures from the toolbox. The third thing I think we can probably agree about is the nature of the toolbox of available measures to respond either preventively or reactively and to different kinds of situations. And broadly those tools I think we probably agree fall into four broad categories. First of all political and diplomatic measures at the soft end involving political support I suppose at the harder end involving diplomatic and political isolation strategies of that kind. Then the second part of the toolbox is legal and constitutional measures at the softer end of the long term preventive end putting in place constitutional, legal protections for minority rights, groups concerned about minority rights and issues of that kind. At the harder end of course you are talking about the use of legal mechanisms through the International Criminal Court and otherwise to threaten or advance sexual prosecutions as coercive measure.
A third box of issues relates to economic measures. At the softer end, again, long term prevention development support to deal with underlying inner qualities that are the potential source of serious grievance. At the harder end of that spectrum economic sanctions to deal with difficult situations requiring some leverage, some coercion. And then you’ve got security, the last box of measures is the security sector measures. Again at the softer end security sector reform, civilian control with the military, issues of that kind. At the harder end making available military forces to assist a government that so request them, or of course at the really hard end coercive military force. I think we all know from all the discussion that’s been around these issues what that broad range of measures are. That doesn’t mean it’s going to be any easier to reach agreement about which measure is most appropriate to apply in any given situation but at least the repertoire of responses is there.
I think fourth thing we can probably agree about is that there is virtue in preparedness to be able to respond with appropriate prevention or reaction strategies as required and that preparedness clearly involves early warning and response mechanisms of the kind that we discussed on a number of occasions during the course of the day. It requires developing civilian response capability, mediation capacity, rule of law, support, administrative support to backup engagement and assistance in a number of these different environments. And also involved by way of preparedness if you’re really doing this properly military preparedness with attention being paid to the kind of force configuration plus doctrine plus training which is needed to deal in extreme situations with the peace enforcement job that’s required.
So I think we all understand about the virtue of preparedness in those different ways and I think finally the fifth thing we probably all agree about is the virtue in international cooperation to advance these various objectives. Lawrence Woocher and Paul Stares in the paper that’s been distributed to some of you which will be discussed by a smaller group tomorrow I think very well articulates what those virtues are. One more effective impact if you got more than one government country doing this together. Secondly significantly greater legitimacy than if you’ve got just one country doing whatever it is that’s involved. And thirdly is the burden of the virtue of burden sharing that the costs and the pain that are involved are obviously much better spread if you’ve got multilateral cooperation in doing these things.
So if we are agreed about these things, the question for our discussion is if cooperation is desirable in all of these areas that I mentioned, what do we do to improve it? How do we translate the rhetoric into more effective reality? What are the main gaps between what we are doing and what we should be doing in all these respects? How do we fill them? So my opening question to each of my three panelists is just that. I’ll ask each of them in turn, what are the gaps in the international cooperative system in this area which most trouble you, beginning with you, Alexandre?
Alexadre Fasel: Thank you, Gareth. I think that what is missing is the connection between what is happening in the United Nations and what is happening in the field. In the United Nations as you have just said we had the 2005 compromise, the concept of the responsibility to protect. We had discussions that have moved along well; the consensus that is crystallized around the concept. We had special advisors to the Secretary General who are doing excellent work. The prospect of an integrated bureau for these two advisors of the United Nations and all of this is done by the engineers and mechanics so to speak of the United Nations in New York, and I believe that it is also necessary to analyze what is happening in the field in the regions we are talking about. It is in this context that Switzerland together with Argentina and Tanzania and we even mentioned this on several occasions this morning. We’ve talked about this initiative.
I’ve developed this concept of having a series of regional seminars which will talk about genocide and mass violence prevention. The idea is to achieve an awareness regionally, an awareness of what? That we are responsible for what’s happening in our backyard, in our own home; we see what is happening but nobody feels responsible. So create a feeling of responsibility. This goes in the direction of what we heard this morning said by Ms. Power, namely that there’s a need for units that are responsible, identified as such within the government to follow up on these issues and monitor these issues. We need to also discuss the best practices and in what is happening in the regions and also to pull things in the direction of multilaterality is to develop this feeling of prevention, a sense for prevention of the regions i.e. the idea is to tour the world with a series of seminars. In other words, regional seminars and then we’re all involved in different networks. It’s very necessary to have a multiplicity of networks. This would be one of them of government players responsible for these issues who can then instruct the mechanics and engineers in the United Nations, our colleagues in other words for these missions to create a better consistency between in the field demands and needs and the United Nations and instruments that develops internationally regarding mass atrocities.
So what can I say? I see two points here. The first point is that I think this was in December at a session of the Fifth Assembly, General Assembly handling budgetary and administrative issues. We should put through the request of the secretariat for some additional funds so that this joint bureau can be set up. The CCQAB Consultative Committee on Administrative and Budgetary issues has already examined the question. Has not followed up completely and now this new meeting should in fact reverse that decision and go in the direction of the secretaries for it is mainly up to us, countries of the north, the French, the Germans, the Americans, all of us who are in the Geneva group, the group an informal group that regroups the biggest contributors to the United Nations system and therefore who have an impact on budget issues. And let us not forget that we’re looking at budget zero, zero growth budgets. But this has to be dealt with in a diplomatic way when we’re talking about major issues such as this one.
Now another important point for the future, in the near future would be for the next debate on the responsibility to protect which will be held next summer. The idea would be for these government aspirations, for the civil servants who are developing these issues of responsibility in their countries to feed this into the discussion that will be held next summer in New York. The idea being to trigger higher quality in the debate and link what is happening at the multilateral level with what is happening in the field. Parallel to this of course- parallel to the establishment of this joint bureau, this bureau would have to start working and do good work in the sense that the countries and nations who are in crisis should recognize in this bureau their strategic homeland so to speak. In other words they should be aware that they can turn to the United Nations when experiencing difficulty to obtain from the United Nations Council support, effective support, fast and viable support. This bureau should also be capable of infiltrating the entire secretariat, the entire UN system to make sure that the excellent work being done there, work which by the way is also being done in the scientific community and in civil society to make sure that this work reaches out to all of the decision makers in the United Nations system. I will stop there at this stage.
Gareth Evans: … just getting the Europeans act together, how easy is it to do that in the absence of clearly identified focal points, people whose day job it is to work on these issues? I mean you talked about creating a bureau and having a sort of input into the debates and the UN General Assembly but how is this working in practice in real world situations as they arise? What more needs to be done in this respect within the European region?
Alexadre Fasel: I think that’s an important point. I do see, however, that countries are in the process of developing their own armamentarium in their own ministries and that they are precisely moving in this direction. Namely moving in the direction of creating units that are in charge of mainstreaming within their own ministries and coordination between ministries. This started one year or two ago and it is fostered by a number of initiatives that must be supported. I’m quite confident that a few years from now we will have this network of government focal points.
Gareth Evans: …I think we’ve got one still. It’s in very much in progress… Stephen, can I come to you to talk about the gaps as you see them in an international corporation, particularly legal context.
Stephen Rapp: Well, indeed in the legal context and you might expect from my biography that I’d be talking about justice and truth revealing processes and I did want to repeat what Louise Arbour said. That the business of prosecuting and punishing people that have committed these heinous crimes after the fact is very important to preventing them. Certainly and if I could just underline that for a bit and then talk about what was lacking and what arrived to make it possible to achieve that and a few experiences that I had myself.
In the Rwandan context, we’ve heard of the 800,000 men, women, and children murdered in 100 days. Why did that happen? And one of the reasons that certainly we saw as we were investigating those cases is that in the years before the genocide, hundreds, sometimes thousands of people were killed without any consequences whatsoever. A message was essentially sent that if the Tutsis want to resettle in Rwanda, there will be no Tutsi left alive in the country. When RTLM radio whose proprietors I prosecuted began their campaign of hate at the end of 1993, at that time the moderate Hutu Minister of Justice called in the radio leaders including Felicien Kabuga still on the lam and probably living in Kenya, but the other people that we prosecuted and said, “You’re breaking the law. If you continue these efforts, pretty soon neighbors are going to be taking out machetes and killing neighbors.” And the answer to that was the Interahamwe surrounded the Ministry of Justice and the Prosecutor’s Office and there was no prosecution. And so when the powers that be saw that they were going to have to share that power with the RPF the alternative became let’s… wasn’t sure he was serious they followed the solution. Best solution is: kill all the Tutsis. And they did that in fact because they had gotten away with it beforehand.
In Sierra Leone where I was afterwards if you know the history in 1999 the rebels were given a complete—the RUF rebels, the people that had been chopping off hands and raping women by the tens of thousands—were given a full and complete amnesty, were allowed power sharing… And they didn’t live up to their agreement. They ended up attacking peacekeepers that were trying voluntarily to disarm them, killing four of them, imprisoning 400 others. And it was only after there was a prosecution of the leaders that stability returned to the country and there have been two elections in which there’s the peaceful transfers from one administration to another, even from one political party to another.
You can look at the situation in the DRC. Far from I mean horrendous problems that continued but… in 2003 with the crimes that were committed there. The acts of the ICC and going after and seeing to arrest for and successfully arresting three leaders also of local prosecutors following up helped stabilize the situation and reduce the level of violations… I was just in Goma two weeks ago and this is looking prospectively but the situation in Goma is extremely tense. The only military prosecutor in that region is afraid for his life. Some people have been killed almost in broad daylight… But of course what was necessary to succeed in Rwanda, what was necessary to succeed in Sierra Leone… and what will be necessary to succeed in north Kivu is state cooperation. Because these international organizations, these international institutions of justice that have been established in the 15 years, the last 15 years, don’t have police forces. They don’t have troops. They don’t have everything that goes with it.
People talk about protection and how important it is to protect. And in my home community in Iowa the police have on the side of their cars the slogan, “We Protect and Serve.” Well they don’t protect and serve generally by stopping crimes as they’re being committed. They protect and serve by chasing down those that are responsible for those crimes afterwards but with a system that provides for an assurance that people can be arrested. That they can be detained, that they can be tried fairly and that’s what’s often lacking. Now in Rwanda it was possible with the Chapter 7 mandate to mandate the cooperation of states. Of course the people that had lost the war they were in exile in other countries. They didn’t have a lot of friends although they tried to buy them and some have successfully managed to burrow in and they’re still not arrested. But it was possible because of those Chapter 7 powers given by the United Nations by the Security Council because the rewards provided by the United States for fugitives to arrest people in 26 different countries including 13 military leaders including media leaders, political leaders, including the Prime Minister and bring them to Arusha to trial.
In the case of Sierra Leone were it not for the intervention of… and the United Nations and of eventually a small British force it wouldn’t have been possible to defeat the RUF. When my predecessors indicted the people that they indicted including the person that was the effective Minister of Defense of the country prosecuting both sides in the conflict for violations it was useful that there was indeed a peacekeeping force in the country at that point… A more robust mandate to deal with the threats to peace with the militias that were hurting the public made possible the delivery of justice. And by the same token now with… obviously it will take political will. It will take a mandate. It will take the state and the international community to move forward to make that arrest.
Now we also have seen other situations where incentives, not just coercive efforts through international organizations. Troops have made a difference. In the case of Milosevic,Milosevic wouldn’t have come to The Hague had the international community said we’re not going to the donor’s conference in Belgrade in the last week of June 2001. And the day before that donor’s conference he was on the plane to The Hague. The conditionality provided by the European Union has made possible dozens of arrests of senior figures. Countries that want to move forward into the European Union have collaborated. They’ve had an incentive. In the case of Charles Taylor, Charles Taylor was sent as was the practice in the past into a safe and comfortable exile in Nigeria. But international pressure built, human rights groups, certainly the prosecutor’s office and others worked the world at trying to build the pressure for that. But it was frankly the request of the President of- freely elected President of Liberia for his return to Liberia. It was a Security Council Resolution that allowed for the … forces to transport him to Sierra Leone and it was the incentive. I see my friend Rich Williamson in here from the Bush administration. It was the incentive provided by President Bush who said “If you want to meet me, President…you’ve got to make that arrest.” Those kind of incentives, that kind of state cooperation was necessary to make justice work.
Now we’re in a challenging environment in these international tribunals, some of who had Chapter 7 powers, some that have had established records of success of using these tools to bring people to custody are passing from the scene. We have now the ICC and of course as I know Gareth said that he’ll ask me a tough question about the United States and exceptionalism shortly on that and I’ll respond when that comes. Though I should note that we’re cooperating with the ICC and supporting its prosecutions and seeking ways to assist it in bringing the accused to justice and in protecting the victims and doing what we can to make these prosecutions successful all of which we have found to be appropriate.
But we’re now in a situation where I think of the 14 people that the arrest warrants have been issued for only five are in custody and a level of international cooperation is sorely lacking. And if you don’t have the international institution in some of these places then what we also want to see happen which is for the states to step up and to do it themselves. We had in the former Yugoslavia for instance with the ICTY is that as the ICTY closed its doors and was looking to transfer cases to the region, the states actually wanted to have those cases brought back and wanted to be able to show that they could perform justice themselves. This wasn’t strictly speaking complementarity, but it was like it. The ICC can perform the same role if people know that there’s a cop on the beat and you’re going to get if you don’t make the case at the national level, they’re going to make it at the international level. But without an effective ICC we lose the incentive to do that.
So I think at this point that the challenge we all have is trying to develop the levels of cooperation and assistance that we need for international justice to work. I do want to emphasize that it’s not only at the international level that justice can be delivered and certainly where the ICC is doing its job we have the responsibility to go in and help ensure that cases are prosecuted. That’s the challenge right now in the Democratic Republic of Congo, where even though they’re for Congolese in Custody of the ICC there’s still ongoing criminality and mass rape and killings in places like North and South Kivu. So we really need to strengthen their capacity to deal with that. And the recent proposals for a mixed chamber made by their Minister of Justice to try serious offenders from the mapping period and we hope for the period to the present is something that I think we’ve got to work to support and that will take international cooperation as well but and not international cooperation and assistance that’s necessarily easy to achieve in these times of budgetary shortfalls. So that’s where we lack getting that cooperation.
Now I want to say in terms of the solution and I guess we’ll get to solutions later, but the Genocide Prevention Task Force and the sort of mobilization that we’ve seen in my own country, and we don’t do things perfectly there. But what the response that occurred because of Darfur and other atrocities has built a political movement that’s pushed for things like the Genocide Prevention and Atrocity Prevention Interagency Policy Committee and having a Director in the National Security Council. And so even as we talk about governments and the importance of governments acting here as I think one commentator said, I think it was my friend Francois Zimeray who said in politics the system responds to the demand. And so I think that we have to recognize that this needs to be a movement from the bottom up. That it takes a demand in each country to achieve the kind of collaboration that you need to have to these international institutions to achieve justice, and by doing that prevent these crimes in the future.
Gareth Evans: Thanks, Stephen. As you foreshadowed if I hadn’t asked the question, somebody certainly will. Nobody doubts your own personal commitment and indeed passion on this subject, but how plausible, credible is it for the U.S. to be calling for State cooperation with international judicial process when you continue to decline to ratify the ICC statute?
Stephen Rapp: Obviously, we have been a leader in international justice institutions form Nuremburg and have been providing support for the Rwanda, Yugoslavia, Sierra Leone, now the Cambodian tribunal, the Bosnia War Crimes Chamber and are pushing in a variety of ways to achieve accountability. Obviously, the United States is a country that we all know has a process for ratification of international agreements that’s enormously challenging. I mean Woodrow Wilson came here to Paris in 1919 and sold the world on the League of Nations and then he went back to Washington D.C. and he couldn’t sell his own Senate on the League of Nations and couldn’t get the Versailles Treaty ratified. America growing as it did distant from the world from 1783 forward untied to any other country has this political tradition that makes it very difficult to ratify international conventions and to surrender aspects of our sovereignty.
But we, in our own system, hold people to account. I mean President of the United States fought a special prosecutor when to the Supreme Court of the United States and lost nine-zero. I mean we hold our people to account in our legal system, and we assist others in protecting human rights and in victims’ protection as well. I note that as people have probably followed recently since we’ve decided to join the Human Rights Council we’re now participating in the Universal Periodic Review. Our delegations in Geneva these last few days talking about the American Record on Human Rights as something we’re proud of. But of course,Cuba and Iran were there the first to speak to take their shots, but others were there to criticize and to praise. So we’re willing to stand on our record and our ability to hold our own people to account in that system.
And of course, if we’re going to be involved in the world, if we’re going to try to influence situations where people are being killed by the tens of thousands where three hundred and three men, women, and children are being raped over the course of three days in Walikale we need the partnerships of a lot of countries and people can say, “Well, Belgium shouldn’t come there. The Colonial power, they shouldn’t assist. France had issues with Rwanda.” I mean everyone in the world can be criticized when they go out and try to do things in the world. And basically countries and their citizens have to demand when horrible things are happening that their countries intervene, answer for their own past and for their own present, but also insist that others answer for it as well.
Gareth Evans: Just one other question before we move on to Markus. The problem of apprehending indictees and generally enforcing court process, obvious problem with Bashir with the lack of cooperation of the African countries but clearly a more general problem for any international court process, is there anything specifically that you would recommend that the international community should be trying to do to create a greater sense of obligation on countries to actively support enforcement of court process? I mean I’m asking you-
Stephen Rapp: Okay well as non-party but I will, you know we obviously supported well let’s say we didn’t oppose the referral of the Darfur situation to the ICC and during the Bush administration even… voted against resolutions which suggested that the prosecution of Bashir and others should be deferred. We think that it’s a matter of making it very, very clear that when there are these kinds of crimes that have been committed that that individual, you know, one shouldn’t have unnecessary contacts with them. Sometimes you have to have contacts in the interest of peace and for lifesaving reasons. But fundamentally the world needs to make it plain as they did in the case of Charles Taylor, as they did in the case of Slobodan Milosevic that a person who’s committed these crimes needs to face justice and to deliver that message consistently. And that’s how in the end the message is sent as it was in the case of Milosevic and Taylor that they’re not good leaders for their countries. In the sense that they’re not as effective as others who aren’t as sullied with these crimes and so it makes it possible for others to step forward and for them to come to court.
Gareth Evans: I do have one more question, in the case of Charles Taylor you mentioned that as an example of successful international cooperation… but was it all that smart? Was it all that defensible in retrospect? Taylor was given asylum in Nigeria in order to stave off a blood bath in Monrovia in the last days of that conflict. He wasn’t so far as I know or anyone who is credibly claimed in breach of the conditions of these asylums there. When he was nonetheless hauled off to the court. And the problem that creates in terms of precedence for other people whom you might want to do these deals with for example… in Zimbabwe has not been pretty because… whenever asked would he be interested in some kind of deal that would get him out of… just quotes Charles Taylor every time as I well know because I’ve been involved in that case. I mean there’s a bit more complexity in these cases than you’ve acknowledged, isn’t there?
Stephen Rapp: Well I mean the court made no deal and there is no deal for non-prosecution of violations of international humanitarian law. That’s well settled and even at… the United Nations added the provision that there was no immunity. Indeed after Charles Taylor was the indictment against him was unsealed which caused consternation during the conference, the peace conference in… he left the scene and I think many feel that him not being present made it easier for the parties to move forward and resolve the problem… In each of these situations that one talks about actually holding somebody to account and calling them for what they are actually hastens the day when their atrocities really end. And giving them a free pass basically tells them that they can do it again. It would be like giving an Article 16 today to Bashir would be a signal to him well if you want to unleash the… in the South Sudan go ahead because then I can just ask for it again. So that’s basically the rule here. We don’t when hostages take people in a bank we don’t offer them the mayorality of the city or other situations that give them continued power. We talk and we talk and we talk and we try to talk them out of killing people or harming people, but at the end of the day if you surrender to that kind of intimidation you’re basically surrendering other tens of thousands of people to those atrocities and you’ve got to be serious about it and that’s as simple as that.
Gareth Evans: Well there speaks a true prosecutor. Markus, moving across to you. You’ve had a long background in development policy and the use of development policy for long term conflict prevention and human rights protection and atrocity prevention. Have you got any views about how we might have better cooperation in that area or indeed from your own perspective what other gaps do you see between the aspiration the reality of international cooperation?
Markus Löning: Well thank you very much. I’ve just been to Washington two weeks ago to try to improve the cooperation we have between the U.S. and Germany because we had in human rights questions there was hardly any cooperation at all. And I’ve been traveling especially countries in Asia. I’ve been visiting many Muslim countries over the past years and we’ve been held as Europeans accountable for what Americans have been doing which was a very bad situation. And my lesson from that is the first thing we need is credibility. And so I’m very happy that the new administration is really reestablishing credibility of American human rights policies step-by-step. So I really I am so happy that you have been standing for the Human Rights Council. And the way that you dealt with the Universal Periodic Review, you took that seriously. That is so important because many other countries from around from Africa, from other Asia, they’re talking about we’re doing this Universal Periodic Review because everybody is the same. We’re the same level as the Americans. That’s why we do it. That’s why we’re happy to expose everyone. Not happy but that’s why we are ready to expose ourselves in Geneva.
So I believe that credibility is extremely important and consistency. You need to be consistent in what you’re doing and you need to stick to the UN if you have decided to work seriously within the UN system, stick to it. And that is one of the questions that you always have with the Americans. What’s happening if the administration changes one day? Will it be consistent? Will the new administration stick to its commitment to the UN system or will it not? And so that is in my eyes is a major problem. I mean I’m not going to rub in the ICC again. You know, just ratify it…
Yes, sorry, I’m not interested in the excuses and the same I mean what you have said about this convention on migrant workers and it’s the same. It’s true for the European countries too. I mean these are the things where we make great mistakes and we invite criticism. It’s true in Europe for the way we deal with Muslims sometimes. If you look at the way the kind of public debates we have in some countries and some of the things that are happening without people standing up to protect minorities. It’s true for the Roma question. We’ve had it here in France. I mean people stood up. People said what needed to be said, but we have to really be careful about our credibility. And sorry but I have to mention the word Guantanamo. You know? Get this out of the world. This really is a problem. It is a credibility problem and how can we seriously work and implement new human rights mechanisms if we are not really consistent and credible in other areas?
So I think it’s very important that we have a dialogue between the U.S. and Europe and within Europe on these questions, and that we really, you know, how do you call it,
When I came into office I don’t know whether I can tell this story inside here but I will do it nevertheless. When I came into office in April, Ms. Otunbayeva became President in Kyrgyzstan, and she said, “I want to work for human rights for Rule of Law.” So I gathered some people in the Foreign Ministry, in the Ministry of Development, some development agency and said, “Hey listen, we have to support this lady. Whatever we think what the outcome of that is what we have to do is we need to support her.” And so well honestly the first response was, “Well we thought we’d wait and see.” That was the first response. There was nothing about some time before things happened… but still it shows a bit that we are actually in the habit of being cautious and we have to change this habit. We have to address these things more precisely. We have to then take steps and take risks and a few weeks later… went to Kyrgyzstan to give some support to Ms. Otunbayeva. They went to Mrs. Otunbayeva to look at what has been happening and to show the people that the world is watching and the world is seeing what is happening there which didn’t make a lot of impression on the people there that were at the cause of the atrocities there. You also have to see that.
And I think we need, and that’s maybe my second point, to realistic goals. So what are we supposed to do in Kyrgyzstan? Now I hear from some friends that say, “Well if nothing else, we should send troops.” And I can only say from a German perspective, “Let’s be very, very careful with calling for troops.” In Germany, the Parliament has to vote and every time we move a soldier. If we move five soldiers to Kyrgyzstan there will be a vote in the plenary of the Parliament. And each and every one of these members of Parliament will have to go back to his constituents and say, “Yes, I voted in favor of sending troops and some of these may die.” First of all that’s a new experience to Germany at least since 1945. Someone said, “We used to be… too belligerent and now we’re too pacifistic.” Maybe like that, you know?
I think it is before we talk about the military options it is very important to work on the other options. What can we do in the political field? What can we do in the diplomatic field? What can we do without development instruments? I mean we are wasting hundreds of millions of dollars or Euros in development policy. It shouldn’t be too difficult to rearrange some of that to work more consistent on conflicts in countries where it’s- where the situation could get out of hand. So my pledge is to concentrate on other instruments, not on the military instruments and not debate the military instruments too high. It will put some people off. And I don’t want to see these extremely difficult debates. Are we going to send troops to Sudan or wherever? I hope we don’t have to. And how do we weigh it? And these kind of debates I mean it is easy to call for troops but it is extremely difficult to take these decisions and to get the people to support the decision. If I look at the way how we have about 5,000 troops in Afghanistan. The way how members of Parliament are under pressure because of these soldiers although it’s very easy to explain. There’s a hell of a lot of pressure on people withdraw the troops. So I think we have to be very careful and rather develop other instruments.
And I think last thing is we have to address the responsibility of the neighbors. I mean we’re debating the situation in Sudan a lot in our foreign ministry. I wonder how much- how many people actually are sitting on the same topic in Cairo? And I’m wondering, I know that people in Uganda are very worried about it. But I’m wondering how much responsibility are the other neighbors ready to take? What kind of initiatives does Egypt actually take to prevent a conflict or other Arab countries in the region that are strong and that have influence in Sudan? So I think it is extremely important to stick to regional approach and to say everybody’s first responsibility is in his country and with his neighbors and then we’ll see about the rest.
Gareth Evans: On the question of military force, you were kind enough to say to Stephen, if he had a problem in the U.S. with the Senate he should just fix it. There might be others who would have been inclined to say, “If you have a problem with your Parliamentary process, you should just fix it.” But I mean that does raise the question I mean if we’re going to need the military force option in some extreme cases, and I think there would be very few among us who would doubt that if there’s another Rwanda explodes in front of us how can we possibly sit back and not do that again? Where the hell is the military resource going to come from if you’ve got that kind of constraint in Germany? Is NATO an option in this sense? Let’s talk about can we just briefly other members of the panel, how can we get better international cooperation for some kind of standby force or standby capability in these situations appropriately trained and appropriately dressed up with the right kind of doctrine and so on? I mean how do we do it if we’re going to need it, where is it going to come from?
Markus Löning: … sending troops and we’re changing our structure of our military so that we can send our troops easier than we can do it now. But the only thing I wanted to say is let’s take it easy because that’s let’s say academically that’s the easy option because the other options are more difficult to implement on the ground. But we should put energy in the other options. Of course, I’m not against the military option. I mean I was in favor of what happened in Kosovo although we didn’t have the mandate of the Security Council and I have voted in favor of all the admissions that Germany did. We sent troops to Congo when there were elections. We sent troops to Somalia, to Israel, to other places, but we have to be aware that in some countries that is a difficult a very difficult debate.
Gareth Evans: European… reaction capability has been more a fancy than a reality NATO rapid reaction response capability also seems to be a little bit in the realm of the abstract at the moment. What do you think, Stephen, in terms of what can be done in this respect?
Stephen Rapp: I should note in the strategic concept for NATO which will be discussed at the Summit this weekend and at least the report of experts chaired by former Secretary Albright that will be considered there. It does provide that’s not the strongest language Lawrence refers to it in the paper that NATO could be ready to respond to a UN request provided the North Atlantic Council agreed and the resources were available. There’s several conditions to that but I think there again we’re back to the fact that that would take a UN decision, a kind of unanimity that is sometimes difficult to achieve but there is a possibility of that kind of thing in the extreme case. Obviously we want to look at other things short of that. But I don’t want to leave that subject but I did want to talk about Kyrgyzstan at some point but we’ll go back to that.
Gareth Evans: I just wanted to ask you do you, Alexandre, from a Swiss perspective, outside both NATO and the EU what’s your view about how you mobilize where it comes from the military capability if and when you need it in these situations?
Alexadre Fasel: That’s a courageous question, Gareth. Switzerland of course is an extremely important question in the United Nations system. We are one of the most important major contributors to the United Nation system. But we are 93rd in terms of troop contribution so I would be very wary of giving any advice to countries who in fact are major contributors in this area. This being said the comment that comes to mind is that intervention can be important when talking about putting a stop to mass atrocities. However what is the role of the military in prevention? Well, it’s not very great because troops never come in time, they never move in with a kind of deliberate force that would be necessary and so the… element is not really present. I see this much more in fighting against impunity. This has more of an immediate deterrent effect and we have to see. Are we talking about prevention? That type of prevention should we rather focus on traditional justice approaches and fighting against this impunity, this lack of punishment.
Stephen Rapp: …it was mentioned here in the panel but we are perhaps moving forward with this commission of inquiry. This is indeed one of those challenging places where no one is ready to step up and take responsibility, not the OSCE, not the EU. The government doesn’t want to request a specific UN mandate for it so it’s been requested by the government under Finish… leadership, but we’ve successfully put together a very strong panel… And Helsinki on Wednesday to develop the approach to interrogation of witnesses and to witness protection and to providing the sort of level of muscle that will be needed to do this thing right. Thus far the commission has had access both there and with Uzbekistan has been gathering evidence and looking for report in February. Of course when a report comes out it will be a public report. What follows from it will still be challenging.
There are—we talked about the gaps in this international justice system a great many places where there’s not the possibility of any kind of international court involvement but where there’s a need for accountability. And first and foremost I think that always has to be let’s find the facts. I mean there’s so much misinformation. I went to… and I just couldn’t believe what I heard from different groups. I mean particularly the majority group was going on about with all sorts of paranoid stories about how they were going to be killed in their beds and the horrendous things that the minority was doing and it was the minority that had 90 percent or 95 percent of their houses destroyed and who had made up the largest group of victims. And people believe things that are completely unrelated to the facts. It’s necessary to find those facts. Of course people can still deny them but to find them with credible and genuine inquiry is an important building block to going forward to sending the message that perhaps there will be accountability sometime because here are the facts. Something could happen at the national level or elsewhere or through some country that might prosecute these people who have sought haven in those countries. So you begin to discourage those crimes, and you make it possible for people to build one would hope would be a system of enforcement of those laws at the national level.
Other places in Guinea I think what happened there which was under the auspices for the High Commissioner for Human Rights was extremely successful in bringing out the facts of the killings that occurred there in September of 2009. 150 people shot to death roughly in the stadium. Other women raped, women raped in the stadium and in houses where they were confined thereafter. The fact finding group deployed in less than two months, 697 interviews were conducted. Clearly the facts were laid out and of course there was this attack on the President by the fellow who had actually led the killings in the stadium and the result over time with regional and European cooperation and others has been a transition to elections the second tour of which we had one week ago Sunday and which we’re now seeing the results and perhaps the first democratically elected government in the country in 52 years and perhaps accountability there rather than at the international level. So finding facts, bringing these things to the fore I think can have a benefit even where you don’t have an obvious place to go immediately for justice but it can be a struggle in some neighborhoods.
Gareth Evans: Just one more question from me before we open it up to the floor, perhaps to Markus again on the development instrument. We’ve talked a lot about the legal instrument. We’ve talked about the military instrument. But perhaps not enough about the utility of better coordination and cooperation in the application of the development instrument that we do have in terms of encouraging better governance and so on. There have been some catastrophic examples in recent times of poorly coordinated and administered aid of this kind. I think particularly of Afghanistan and the Rule of Law support for police and development of courts and prosecutors and all the rest of the necessary apparatus which just didn’t get off the ground properly. The European Union talks the talk always in terms of the… that its development capacity represents but does it really walk the walk to the extent that it should and could and what could be better done in terms of cooperative strategies here? Is the external action service in any way the answer to that or is that just going to become another part of the problem?
Markus Löning: You know I’m a strong believer in European integration although it’s very difficult sometimes. I mean what we see right now is that actually not the External Action Service but the European Development Fund and the European Commissioner for development very often acts like the 28th actor and that of course is not what we need. Basically I think and maybe I should say that generally I’m quite critical on development policies of the last years and the amounts of money that have been wasted because there’s always one thing we forget is we forget to call for a responsibility for local laws of responsibility. We like to give and believe that if we give more it’s better, but it’s just simply not true.
I think what the aim of European Development Policy must be is to either fill in where no other European country is working or, for example, come in in a crisis situation or in a probable crisis situation in a certain moment. I very much like what the Italian colleagues said about engagement. Because that’s very true. It is extremely important to use all the instruments we have which is development policy, call for responsibility, educate people, don’t give money, just give courses, give you know, be extremely also responsible with tax payers’ money but then also engage in diplomatic ways. Engage with trade and other issues and just keep people- open up possibilities for students to come to Europe. You know be more relaxed on visa issues, so that people can travel and come. Someone said, “We live in a globalized world and we can travel.” I mean that may be true for some of us that have an older diplomatic passport but it’s not true for most of the people in the world. They cannot travel, you know? They don’t live in a globalized world because they just cannot enter Europe, for example. They cannot even leave their own country. So I don’t have a very good answer to that because I’m not very happy with what the European Union is doing as development agent. And basically I’m also not very happy with what most of the member countries come. I believe if we look at the amount of money and the amount of effort we put into our development policies of the last 50 years in Africa and if you look at the situation in Africa you really have to ask some question…
Stephen Rapp: I just wanted to say something in defense of Europe. In the course of dealing with issues like the DR Congo and the Great Lakes and in Kyrgyzstan, the European envoys that are appointed people like Roland Van der Geer who will soon be unfortunately leaving his position as Special Envoy for the Great Lakes but gaining the position under the new service as Ambassador to South Africa. Pierre Morel who is the Special Envoy for Central Asia and Georgia are fantastic individuals and actually have a hand in so many things in terms of being able to be effective in ways that sometimes makes diplomats I think from single countries much less effective particularly in dealing with the aid issues. And I mean when you talk to Roland Van der Geer, you talk about… are doing in terms of security sector reform and police reform and the DR Congo. They’re developing now a program to perhaps spend as much as 30,000,000 Euros over time on the justice system there and trying to develop effective ways to do it and combining that with the search for peace and stability. And so I really do think that at least within the EU and the way that those diplomats, at least have the ability to deal with the resources and Morel as well. It’s a model and I think when later on when we talk about this issue of what we need to do in the future in each of our countries is one of the key things is to make sure that the people that are involved in these issues are talking to each other within their countries, because quite often when you talk to diplomats from single countries they don’t know or they don’t have any money or they don’t have any control over their development plans. Development plans have been written for three years in advance. We don’t know if they’re doing any good. And then they don’t have contact often with directly with military establishment etcetera in various places and so you need to be able I think to call all of those folks together to deal with these if you don’t have a single person in charge or at least have a coordinator like the role that David plays.
Gareth Evans: … Questions, yeah, second row there first and then front row. By the way could people please introduce themselves with if you like your affiliation as well just so we can get to know each other a bit better? Rich?
Rich Williamson: Hi, thanks Gareth. Rich Williamson with the Brookings Institute. First, I want to make three observations. First, I think the U.S. is very fortunate to have Stephen Rapp in his position because this whole accountability justice issue is difficult, not only because if the ICC but more generally. So having somebody who is experienced and such a proponent is very important. I believe strongly in R2P, but I want to raise or flesh out a little of the reality that Gareth mentioned about the question of national interests versus international responsibility and feed off a point that Markus made. I’m sure it wasn’t serious rhetorical when you said you give more time or so much time in Berlin to Sudan as opposed to its neighbors. Let me just walk quickly around… gives incredible attention to it. Why? Because the Nile—their lifeblood and it begins in Sudan. That’s how they look at the issue as well as refugees. Not through an R2P perspective. That’s why their policy for a long time has been unity hedged slightly the last three years with moderate development aid in the south. …sees it through its ongoing conflict with Ethiopia and has some 200 agents there causing disruption because it drives… crazy. …wants a united Sudan because he already has enough failed states around him, but at the same time he trains SPLA army. You mentioned Uganda, Chad, President Deby was saved from a coup attempt because of the… He’s part of the Zaghawa minority. He supports the Zaghawa in Darfur. So he’s thinking and involved in it. And then Libya feels that because of some historical relationships that they should be also supporting the Zaghawa which they do substantially.
My point is a) they’ve spent a lot more time than anyone in this room has thinking about this. Two, they have more vital interest than anyone else does. Three, those… right or wrong is vital national interests and therefore trying to get them to look at it in the larger context. Again, Gareth made reference to this but I think it warrants dwelling on just slightly because only through effective implementation of R2P over time will we have any chance to get them to begin to look at a larger context at least in my opinion.
Gareth Evans: Thanks, Rich. I’ll take two or three or four questions or comments before we move on. So the lady in the front row before you Francis?
Marie: Thank you, I’m Marie… from the… Project. I’m concerned about the long term prevention. We have been speaking of justice, you have been speaking of sovereignty. You haven’t been speaking of education. And I wonder what are the relations between the UN different agencies and UNESCO?
Gareth Evans: Okay Francis and then a couple more after that. Sorry over here?
Francis: I want to play the devil’s advocate but don’t put me in the devil’s camp on the issue of peace and justice. Now I’ll tell you what I used to believe, what I believe now and what I think is the challenge. And let me say given the fact that this is a very controversial sensitive area, I certainly am not speaking for the Secretary General. I used to believe that this whole issue of peace versus justice was to some extent a cultural difference. And in many situations where the issue was discussed I found Africans taking one side and Westerners another side. And the African approach would be linked to the African jurisprudence where consensus and reconciliation were the essence of justice whether you’re talking civil law or criminal law or that kind of thing whereas in the Western system adversarial proceedings were the norm. And I was ironically where I come from there’s a background, a historical background where after the… upheavals and tribes against tribes and what have you, when peace came back, the paramount chief called the tribes to come together, dig a hole, put the rubbish all around, bury it and said, “Let’s move on. All the things that divided us are now buried.”
I was just in Cambodia, and ironically I heard the same metaphor because the Cambodians have different reasons are torn between looking back punishing those who were responsible… and moving forward and have placed a limit on how many people would be tried and they talked about digging a hole, putting the rubbish, covering it up, let’s move on. So I used to think, I used to err on the side of peace and reconciliation which I used to think might even be part of my cultural background. But I’ve become increasingly convinced that if we can credibly punish or make it clear that those who commit these heinous crimes will eventually be punished then we will probably create a context that is preventive. Leaders will think twice before they sanction or commit these horrific crimes. But it has to be credible. Now if you then have a leader indicted and I concede that if they are still responsible for bringing peace then there is some dilemma here. But if you have a leader indicted but is absolutely unreachable that you cannot comprehend them, apprehend them, what is the credibility of international justice from this point of view? So my two question is: is there any validity to saying that there are cultural differences on this issue? Secondly, how credible is the system that if you don’t have a means of apprehending people who are indicted?
Gareth Evans: A couple more questions, yeah, Monica.
Monica Serrano: Thank you, Monica Serrano from the Global Center for the Responsibility to Protect. Let me first welcome the fresh reminder and the vital importance of credibility and consistency. And then go back to the question of the greater importance of regional powers. We have seen key players, India, Egypt, warming towards the notion that- the merging norm of the responsibility to protect. And this has been a fantastic thing to watch. I want to ask how you perceive in each of the areas that you have described the partnership with players like Brazil, India, Turkey, and how you pursue those partnerships. And then let me just make the point about the justice versus peace dilemma and just to mention how in Latin America the determination with which both the state and non state actors have pursued the commitment towards curbing impunity has really trickled down and we have seen that the region has now accounts for about 33 percent of cases that are taking place in national courts and we are seeing also heads of states, ex heads of states being handed over among governments. Thank you.
Gareth Evans: One more question from Samantha Power, and then I’ll come back to you for second round. Samantha.
Samantha Power: Thanks Gareth. I just wanted to comment on Rich’s intervention in this recurring theme of the regional powers because I think what we’ve experienced over the last two or three months is potentially encouraging but also requires I think reinforcement so I don’t disagree, Rich. I think your assessment, your sort of tour de force of the region seems spot on in terms of your characterization of the national interests that are motivating the players. But what has been really, really interesting is to see the way in which those national interests have come to align with the specter of January 9th and hanging over all of us have come to align with our approach which is more rooted in international responsibility prevention of mass atrocity violence conflict etcetera. I mean President Obama as I mentioned earlier is motivated above all and by the time by the prospect of violence against civilians and large casualties. What we found is that President Mubarak and… the Foreign Minister and Suleiman the Director of Intelligence from Egypt are as you said engaged to begin with but exceptionally engaged given as you said the prospect of violence causing large scale spillover into Egypt and that’s exactly where so many of the refugees would flee and then the one country I don’t think we’ve talked about in this portion anyway is of course China, which is not a neighbor but is a hugely relevant player. And again it’s very interesting now the conversation that President Obama had with… just last week. Secretary’s engagement with the Chinese Foreign Minister, there is a sense in which our interests are now aligned. But what has caused them to align, and I’m not saying it means that everybody is doing exactly the same thing or has exactly the same agenda, far from it, I’m sure. But it’s almost like this experience of January 9th is its one reminder of how hard it is to get those interests to align. That is it’s very rare in discussions of prevention or in policy as I was saying earlier that you have a date focus the mind of the international system.
In the case of China there are very real memories of the last time the North and South went to war and the degree to which the oil wells and the border areas were the first in a sense casualties of war the sort of infrastructure and so there’s a huge sense of vestedness in the current situation and that has brought about a degree of involvement. Particularly from Egypt but I think also from China on behalf of kind of calling for cooler heads to prevail in the face of provocations. Calling for an end to inflammatory rhetoric and above all as of late summer calling for the results of this referendum to be respected irrespective of the outcome. So the only friendly amendment I’d make to your tour de force of the region is that in fact all the countries that you mentioned are on record as supporting the referendum going off on time and as being prepared to recognize the results. That is rooted I think in a recognition that national interests no longer clearly align with unity necessarily but rather align with stability. And the prevention of violence and there seems to be you know there’s a recognition that it’s not necessarily for the international community to decide what’s the best route to stability or an end of violence.
So I think that there’s something in this that’s very instructive, vaguely encouraging but it also gives one a sense of just almost how dramatic and kind of graphic and monumental an event on the horizon has to be in order to motivate that kind of merging of the minds. And then the other point I just wanted to make in that spirit on the same topic is what we’ve been doing an awful lot of in the last three months much more than I’ve seen with regard to just about any other foreign policy challenge that the United States has faced since President Obama went into office. Two exceptions to what I’m about to say are Afghanistan/Pakistan and Iran, where something similar was done. But we have been engaged in a lot of what I would call bank-shot diplomacy. That is we have our own channels to Khartoum. We have our own channels to the government of South Sudan, obviously to parties in Darfur but what we’ve been doing more and more of is reaching out to some of the very actors that have been described, the Ethiopias…the Zuma…the Mubaraks and urging a division of labor. So we go direct our own channel.
We also recognize the limits in some cases of our leverage. We don’t have any contact with President Bashir but there are others out there who do who need to be using that leverage in a constructive way. So I think it’s just again an important part of this conversation that if you’re serious about diplomacy and you’re serious about prevention, the question one should ask oneself is an empirical question or consequentialist question which is not how do we thump our chests and feel good about how serious we are about prevention but rather who are the actors who are most likely to have the impact with the relevant parties on the ground and so again this muscle memory that we’re building using these diagonal channels to the parties on the ground I think again most countries and we do versions of this all the time but it’s I think rare that we see it as concentrated as it has been over the last few months and it as high a level as it has been, and it’s been I think rewarded by some of the countries you mentioned stepping up.
Gareth Evans: Do you want to come back on that, Rich before we go to the panel? Yeah, by all means it’s an interesting dialogue.
Rich Williamson: I accept the addendum in total but I was just trying to make the point that they have other national interests that conflict sometimes with this norm. One anecdote with a senior Sudanese official where we were talking about China which has been among the most important neighbor slash non-neighbor. And I asked him how he thought it would go as we approached the referendum. This was three years ago. He said, “I only know one thing for sure. China will be with the winner.” So they’re hedging their bets because they do want stability because they don’t want an interruption of their five percent of their imported oil. So I think Samantha’s point is, I agree, and I have and continue to applaud the administration’s diplomatic search, but the initial point was not Sudan per se, but that there’s a conflict between an emerging consequential norm that we all may agree with here and the particulars and cases where there always are neighbors spending more time, have more focus and more vital interest which may often conflict with that norm. And we shouldn’t pretend that doesn’t exist because that becomes determinative in some of these cases.
Gareth Evans: Alright, I’ll come back to the panel now. Alexandre, the couple of questions about the UN and education and also about broadening the reach of regional activity with new players, do you want to comment on those or anything else that you’ve heard?
Stephen Rapp: First, just sitting down and agreeing to forgive each other their sins, their crimes against the innocent in which those victims aren’t involved. And certainly in the time—I came into this in 2001—I’d been a prosecutor in my own system and had spent a lot of time with victims and always thought that was where I belonged. And that’s where I belonged when I was an international prosecutor. I found the victims of these crimes in Africa very much wanted to have justice. They very much wanted to have it said that what was done to them was wrong, and that it shouldn’t happen to others. I remember a guy in the media judgment who came up and said, “I never thought that men that powerful would someday be sent to prison for life. This is the greatest day of my life, to see that happen.” And when the Rwanda Tribunal was established, remember the argument. The year before they’d established a tribunal for the former Yugoslavia, maybe 100,000 dead, maybe more in the former Yugoslavia at that point. And then 800,000 people die in Rwanda in 100 days, and the argument is, “Doesn’t the world care about African victims? Shouldn’t we have justice in this case?” And so that’s what caused the establishment of the tribunal there. And today, when hundreds of thousands of Africans die in DRC or Uganda or Darfur, it’s for them that these institutions are responding in International Criminal Court of which 30 African countries are state parties. In which African judges sit, and which the Deputy Prosecutor is African. They’re responding to that, and it’s a cynical argument, which we prosecutors have always heard, you know, “You’re unfairly targeting me! You know, how dare you come after me in the big house that I live!” And they’re getting their buddies to join them in that particular attack. But that’s what it is. It’s a cynical ploy on their part, and we need to stand with the victims in this kind of situation.
Markus Löning: First of all, ’cause you asked whether any of us sees a cultural difference. I would say, “No.” I mean, people need to be convinced that it is not a good thing to just forget about things. Because people don’t forget. It’s on people’s minds. People even 50, 60, 70, 80 years later will remember, or their kids will remember. It’s going to come back. But people need to be convinced that it is good to go in front of a court. To have it all spread out in the open, and then send people to jail if they have been guilty, if they’re found guilty. Because that is the best way that we have developed over the past hundreds of years to really come to a peaceful situation, and to a situation of reconciliation also. And that forgetting, or forgiving, especially in these grave cases we’re talking about is not the way to reconciliation in the end of the day. So I think it’s an argument we have to have in all of our societies all the time. I have that in Germany, too. I have to convince people that it’s a good idea to have an International Criminal Court. That it’s going to bring peace better than if people like, whoever, Charles Taylor or… can do what they like, and nobody’s going to be after them. So I don’t see a cultural difference.
You asked about the credibility of the justice, then yes, this is a UN system, it is—people can adhere. They don’t have to. I mean, we just had the case that some people choose not to be a member of the Rome Statute. So I mean that is the main problem of all the UN, of many UN bodies we have is that we cannot send the police. And we still have to stick to them. I started a half-a-year ago in the foreign office. And I was confronted with this system, UN system, which at first site, you look at it and you think, “Oh, my god, what is this?” And then I talked to a diplomat who had been there for 30 years. And he said, “When I started to work in New York 30 years ago, we had nearly none of these conventions. And now we have many of them.” And he said, “And it has made a difference. It doesn’t make a difference from today to tomorrow, but it makes a difference in the long run.” And I think that is also why we should stick to the international judicial system. The ICC certainly is not perfect, but it’s a good step. The Rwanda Tribunal has been a good step. I mean, the Yugoslavia Tribunal is a great thing for Europe! That’s a great thing! I’ve just been to Croatia, it’s a very, very good thing for them! It makes them work with the Serbs in a completely different way. So you know, we make an issue, and we see Serbian prosecutors working with Croatian prosecutors or judges, which is a great thing, you know? The belief in the judicial system, and the rule of law, is a very, very basic element of human rights and of civilization. So I think we really—we have to stick with that.
And then the last thing I would like to say on the partnerships. I think that it is part of our credibility in all human rights aspects that we include countries like Turkey, like China, like India or Brazil. Turkey has made some major steps fighting impunity. Which hardly anybody actually noticed. They have just changed the constitution, so that the generals that took power in 1980 can go to court. That’s great! I mean, that’s fantastic! That is what human rights defenders have been fighting for many years. That doesn’t say that Turkey is a perfect country now, but you know, it’s a major step. And I think it would really support the credibility also of the work we’re talking about here, if we have Turkey onboard, or if we have some of these other very big, very important countries onboard. It would not just be the North against the rest of the world anymore.
Gareth Evans: Thanks, Marcus. I see five more questioners, starting with you. Yeah, sorry, can’t see in the dark.
Questioner 1: Sebastian Rejak, Polish Foreign Ministry. We’ve heard today from our African colleagues, specifically Mr. Osman, and a gentleman from the audience about the terrible situation in Darfur, which I guess is one of the most shameful instances of how the Western world can be inactive, or ineffective. My impression is that this issue hasn’t been seriously addressed or responded to so far during this symposium. One of you gentleman at the beginning of this session said, “We’ll get to the solutions later on.” My question would be very simple: When is the time for the solution stage of the debate to come? And also in terms of the transatlantic cooperation, we’ve seen that Europe has been able to put itself into trouble, and the world—and along with it, it has been quite slow in solving even its own problems. How do you think it would be possible for Europe and the US to work out practical concrete ways of dealing with the Darfur problem in very concrete terms? I think all the so-called soft means have been used so far. The diplomatic negotiations, you know, kind of trying to force the Sudanese authorities to solve the problem, it all has proven ineffective. What’s the next step? Thank you.
Bill Schabas: Markus Löning, in his comments, made what I thought was a very helpful observation, that we should not exaggerate or overemphasize the idea of military solutions in this area. And I think that the whole discourse about responsibility to protect and the prevention of genocide has probably not been helped by perception that sometimes encourage too much, that it’s all about sending troops to solve problems. The International Court of Justice recently made what is probably the most significant legal pronouncement on the prevention of genocide in recent years in the Bosnia versus Serbia case. And there the court said that Serbia had an extra territorial duty to prevent genocide. Which was a very significant finding, but I think you don’t need to ponder too long about that judgment to realize that they weren’t talking about sending troops. I think that would have been the nuttiest idea, and it was the last thing on anybody’s mind that Serbia should have sent troops to Srebrenica in 1995. But what they meant was that Serbia should have used political and economic and other forms of influence on the Bosnian Serbs in order to prevent the killings in Srebrenica. I remember when the judgment came out, we thought, how would that apply to other examples. And of course, the obvious one is the genocide that took place a year before Srebrenica in Rwanda.
There have been studies—there was one, I think, by the Carnegie Institute that people like Romeo Dallaire participated in, or encouraged, that looked at how the genocide in Rwanda could have been prevented by a certain number of troops being sent. And that may or may not have been accurate assessment, but what we maybe need more are studies about how firmer political influence could have prevented genocide in Rwanda. If, for example, the country—I’m speaking about France now, that had probably the greatest influence over the Rwandan regime had have been firmer and more decisive about indicating Théoneste Bagosora and the others that they had to stop. And that this should not continue. I think that more often than not, actually, we don’t exhaust the political opportunities and sometimes we turn too quickly to the idea of military solutions, because of the difficulties and the frustration with the politics. And that it’s very, very important as we develop the idea of the responsibility to protect, and the duty to prevent genocide, that we go very cautiously with the military emphasis and develop the political dimensions much more, thank you.
Questioner 3 [through translator]: In the Darfur case, so there’s one issue that seems to have been omitted in this symposium, which is a decision of the judges on 12 July, 2010 regarding the issue of genocide, whether or not genocide is there, or not, genocide in Darfur. And the fact that this situation was described as an ongoing genocide as opposed to a past genocide. In other words, today, genocidal acts are still being committed in Darfur. And the fact that this had no impact whatsoever on the position of the United States. There some representatives of the US here. So this had no impact, no bearing on the situation. On the contrary, advances toward Bashir to buy peace in the direction of Sudan and in anticipation of the referendum in January. In fact, and the pressures exercised on the President, what was expected was a change of attitude in the American administration regarding this ongoing genocide.
Questioner 4 [through translator]: Three points. Credibility, effectiveness, viability. I would like to put these on the table. To talk once again about this network and this global architecture that we would like to work in. I’m speaking in French, so that the translators can rest a bit. As concerns credibility, I would like to hear you talk more about this multi-polar, multi-cultural architecture we need to work in, the quality dialogue we must develop with those who will become our partners, as opposed to just the countries that we will be intervening in. And also this issue of a double standard, which can only be resolved by a new partnership, where we don’t see ourselves just as leaders, but where we see ourselves as part of a broader alliance. And its consequences also on the governability of such a network.
As concerns effectiveness, concretely speaking, we’re no longer at the stage where we will be able to finance constantly newly emerging international tribunals. And therefore, what instruments will allow us today to fight against impunity outside of international tribunals. How could we resolve this problem? This would require a number of new measures, transitional measures for the fight against impunity that we would have to develop, that we would have to become more effective in the Lebanon, Khmer Rouge Tribunals. These are the poor relatives of the international tribunal system. Then there’s the issue of viability. How, and there’s only response, the threat of a military response means that we have to develop a whole series of civilian preventive measures. Mediation, the authorization to speak with those whom we are normally not allowed to speak. Mediation, inter-mediation, these are important. Protection of civilians. These new norms and standards that we are developing. There’s a whole network here, a whole armamentarium, instrumentarium that we could develop in a more systematic way!
Questioner 5: The lady just said most of what I wanted to say. I just wanted to add something to what Markus Löning had said. Because I think there’s a bit of a disconnect between the international system, international judiciary systems. I mean, in terms of how the fight against impunity helps reconciliation. I mean, within countries, people tend to reconcile when they see that the perpetrator side has admitted to wrongdoing. And when the international system does that for them, I just doubt just a tiny little bit that it advances reconciliation so much. I mean, it would demand more a growth of the international system, so that the international system can take over more and more and more. You know, to reassure people, so that it would further their readiness to reconcile. There might be a slight disconnect there.
Bridget Inder: Thank you. My name is Brigid Inder. I’m the Executive Director of the Women’s Initiatives for Gender Justice. We know that armed conflict impacts on women differently than men. We know that women are really involved and engaged in peace processes, and in mechanisms to end armed conflict. And so my question for the panelists is ensuring that one of the gaps is this where it proceeds is not a gap in relation to a failure to integrate gender issues and dimensions in this area of preventing genocide and mass atrocities. And so my question for you is are there opportunities that you can identify for you to ensure integration or that others can undertake to ensure that gender issues are fully integrated into this area of work? Thanks.
Gareth Evans: Okay, well, that’s a full suite of questions. Who would like to go first? Stephen?
Stephen Rapp: Right. Let me just hit a few of them. I mean, I certainly share the view that Bill Schabas presented about military force, and the difficulty of have you been deploying it effectively in some of these situations? The failure to intervene in Rwanda was to some extent a reflection of what happened in Mogadishu six months earlier, where a force had gone in to disarm one of the militia leaders, and had failed, and people were killed. And it was a sad and humiliating situation, and that resulted in a relapse of will to act later for some period of time. And certainly in recent conflicts, we’ve seen the difficulties of getting involved within a civil war, and playing a constructive and effective role without an enormous investment and loss of life. I do think, however, that one should look at the continuum of options always with that possibility. Though, I think the responses need to be more targeted in the extreme case. I mean, no-fly zones if you’ve got helicopter gunships shooting up women at wells. You know, jamming of radio if you’ve got really an RTLM that’s violating the law, the law of the Genocide Convention of inciting to commit genocide. I mean, there are things that sometimes can be forceful, but that don’t put people at the same kind of risk. And so I think that those are the options that one might consider.
This whole issue of credibility, I think, challenges us all as prosecutors, as we’ve been involved in deciding how to choose cases. It’s not an automatic process in any of these courts. It involves discretion. It involves deciding who the people are with the greatest responsibility. It involves, certainly in the early days of the Court, who you can actually get arrested. And of course, the question of state cooperation is absolutely critical. It’s not really, I think, possible for an international prosecutor to play the role of some prosecutors and national systems who were like judges that sort of hang back and say, “I’ll let the chips fall where they may.” Certainly in Sierra Leone, as a prosecutor there myself, and my predecessors were heavily involved in community outreach, together with representatives of the Defense Unit. And we covered that country, and as a result, 90 percent of the people knew what the court was doing. And 80 percent of them thought that it was a force for peace and reconciliation. An ICC prosecutor, I think, by the same token, both he or she and their staff, have an obligation to travel everywhere, and to talk about what the court’s doing, and what its goals are, and how it’s serving the interests of victims, and the interests of justice. Not from a partisan standpoint, but just so that people have a greater awareness now. And particularly when people self-interestedly are attacking that. So even though that does sort of cross the line into sort of a political role, it’s a necessary thing. Because at the end of the day, you need state cooperation, you know, if you’re going to be able to be successful. Anyway, I’ll just stop t here and let my colleagues answer the rest.
Markus Löning: Thank you. Trying to read what kind of notes I took. You asked about the national and international justice system. Maybe that is also in answer to your question on development aide. I think, at least my experience with these seven months with human rights is at the core of everything is justice. You need a justice system that works. If you don’t have that, you don’t have human rights. So maybe we should focus our development aide a lot stronger on inviting students to come to countries where they can study law. Working with the judicial system in countries, educating people, educating prosecutors, educating judges. Maybe not on only judicial question, but also organizational questions. Just organizing law, organizing justice, and making national justice systems stronger so that people, at the end of the day, can rely on the international system. I mean, basically, the idea of the ICC is that we don’t need it because we have a national system that works. It’s only if that doesn’t work that we need the ICC. So I think that would be a very major task to improve the human rights situation.
Someone asked about the multiplicity of instruments, and I think that that is exactly what we should do. Maybe we should have more studies on cases where actually interventions or early political interventions could prevent atrocities, whatever kind of atrocities. I mean, we will never know, lucky enough. What was Macedonia? That was a certain moment when the European Union was—everybody was thinking the same thing. We need to prevent another ex-Yugoslav state to fall into war. So they sent, I think it was just 300 policemen, and they disarmed some people, and that was enough. It was enough to prevent a civil war in Macedonia. But it was done at the right moment with the political impulse, and the political will that was needed. So maybe we should concentrate on these things where we can see things happened in a different way, because it was political intervention. And just, you know, develop our toolbox. Develop our instruments, and think less of military instruments if we have more other instruments. That is, of course, maybe harder, but I think it’s absolutely the only way we can do it.
Gareth Evans: Alexandre, do you have any comments?
Alexandre Fasel [through interpreter]: Well, thank you very much. I think these last series of questions, like all the others have well-shown the significant number of weaknesses that we need to work on. For me, in practice, what I feel is important in the coming months is to continue our work, both in terms of the regions, to create this sense of ownership and responsibility for people who have influence, and who are deciding. Secondly, it will be to really have a successful session for the fifth commission of the general assembly, and finally would be to succeed in the next debate, next June, concerning the responsibility of protection, and deciding to bring out at the multi-lateral level this determination and this practice which have been criticized in the regions. I think all this in the service of the triple element that my colleague has just mentioned, which really conveys the rationale of the philosophy behind that comment.
Stephen Rapp: To respond. One person asked about the multiplication of tribunals that we have one for Lebanon, Khmer Rouge, etc. And I think it’s important to note that they were established because those aren’t cases that the ICC could take on. In the case of Lebanon, it’s not violations of international humanitarian law. It’s assassination and acts of terror that aren’t in the ICC statute. In the case of the Khmer Rouge, it’s crimes committed between 75 and 78. And ICC only took over in 2002. That said, I think it’s important to note that consistent with complementarily, other needs to be responses that can involve international assistance and participation on the ground and in national justice systems. The ICC is never going to be able to take more than a handful of perpetrators in any particular situation. There may be places where, with assistance, the National Justice System can step up and do it. And as the gentleman said, if it’s done at the national level, if they see it done there, if the perpetrators are held to account, if they’re able to be close to that trial, it’s going to have a lot more affect. And sometimes that’s going to require not just international assistance, but participation in the same was as we saw in Bosnia when cases were transferred back to the former Yugoslavia, they were transferred to Sarajevo and to two other capitals. But in Bosnia they established a state court, a war crimes chamber that had both national and international participation. But the international participation was phased out over time and now will end in 2012 and it’s much smaller now than before. And so that kind of solution is not inconsistent with having international justice, it reinforces it, and brings it home. And so we shouldn’t assume that just because there’s an ICC there doesn’t need to be any internationals involved on the ground helping strengthen national systems.
Gareth Evans: Two or three questions asked about Darfur, which I should perhaps offer a brief response to policy options. I think the short point is the international community has not manifestly covered itself with glory at any stage in terms of our response to the Darfur situation. And certainly back at the beginning, 2003/2004, where things were very, very rough indeed, and the violence in question was largely a one-sided enterprise coming out of Khartoum, clearly in retrospect, we should have been a lot quicker to mount the full repertoire of diplomatic isolation, economic sanctions, and maybe even at that early stage the legal threat. I do think it’s worth making the point, however, that the military intervention option was never realistically on the table, even for the most enthusiastic supporter of… military intervention. For the reason that when you’re thinking about military intervention, you do have to apply a number of prudential criteria, as well as purely legal ones. And one of the crucial prudential criteria is that there’d be more good than harm followed from that intervention, or there’d be an expectation of that. And I think just about any observer of the scene in Darfur concluded very early on that even if the resources were available, which is another question, to mount such an invasion, it would have been quite catastrophic in terms of its implications for the two million plus displaced people that we we’re trying to protect in that situation. That the logistics of Sudan, the checkpoints and the ability of the Sudan government to create havoc in that context, and to force the humanitarian agencies, of course, out of their role, would have been quite catastrophic for that population, and also a pretty fair bit that any external military intervention would have made an unholy mess of the fragile North/South peace agreement which had just been negotiated. And that raises the larger point about the role of military force.
I think one of the unfinished businesses, bits of unfinished business, as far as the whole Responsibility to Protect agenda is to get much more clarification about the circumstances, the very limited circumstances in which it will be legitimate to use military force, quite apart from the legality issues, the legitimacy issue, number of criteria have been identified in addition to the one that I mentioned. And it is time, I think, pretty soon for there to be a serious international debate about embodying those criteria in UN practice, hopefully, in the Security Council. Maybe the General Assembly. Because unless we do that, we’re going to go on having sort of threshold arguments about military force, and minimize the chance of getting consensus about it. It should always be an absolute last resort.
I was a bit disconcerted to hear from Bill Schabas that there’s still a perception around that Responsibility to Protect is ultimately about military force. I mean, that’s what humanitarian intervention, that’s what they all… was all about. That’s what the right to intervene was all about, “Send in the marines, or do nothing.” There were the policy options on the table. And the whole point of the Responsibility to Protect doctrine was to broaden that right out in the way that Francis has very excellently described this morning. You still got to keep it on the table, but it’s very much just one among a number of options only in the extreme third pillar situation that’s even likely to rise. But just one final point about military forces worth making. Don’t just think of military force in the context of coercive interventions. Military force can be something that can be called in aide in a preventive fashion with the support of the country in question. The preventive deployment in Macedonia has been mentioned, and that’s a classic example of a timely intervention of a very few number of military personnel and police personnel did make a difference. And also, of course, military force can be brought in at the request of the government in question, if it’s having trouble dealing with an internal situation, and doesn’t have the resources available to do it. So we need to—all this business about properly configured forces, and with the right doctrine and the right training, it’s not only to go in there all guns blazing in a coercive context. It’s also to go in there as necessary sometimes where the country in question, the leadership of that country just generally lacks that capacity and wants it. So I think that’s just part of the set of things we need to bear in mind in continuing this debate. I want to thank very much on your behalf the three panelists who have done an outstanding job. Thank you all for excellent questions. And I think it is time now that we give the interpreters a rest and prepare ourselves for what I hope will be a decent drink at the US Embassy. Thank you.
Jacques Fredj: Okay, now we all extend to you the rest of the program. It is true that we have planned the end of this day to have our Ministry of Foreign Affairs, Mr. Bernard Kouchner, to conclude today. Unfortunately, because of the political situation that you’re aware of, neither the former nor the new Minister of Foreign Affairs will be able to be here. So this being said, I want to say a few words at the end of this day.
First of all, I want to thank all of the speakers who are present here. I would like to thank all of you in this room. I think that what we’re really struck by is both the seriousness, gravitas, the richness, the cordiality and the frankness, the honesty, that we’ve had today. It’s true that for the memorial, you know that this is a premier first. We essentially work on the history of the Shoah, our traditional audience is students of the school’s researchers, historians, people who study world history. And for a number of years now we’ve been working with civil servants, agents of police, agents of the government, who in one way or another were associated with what happened during the Second World War in France. It’s true that this is the first time we’re dealing with this subject for the first time here. It’s an absolutely unique opportunity to see the specialists and experts of these issues assembled in this room. And the prevention of genocides, contrary to the Holocaust Museum in Washington, this was not one of the issues of our institution. Today’s symposium—no doubt it anticipates on our future work on the prevention of genocides, as is the rest of the work we have been doing for a number of years now on other genocides. One of the results of today’s event is that there is room here for NGOs, there’s responsibility. And the duty of civil society is to move those who are in charge to act, to educate.
Once again, of course, the Washington Holocaust museum must be paid tribute to for having done all this work. And we hope that we will be able to work in the future with all of the other institutions who will be willing to work with us. This is key because there are political solutions, but not only political solutions. And I think that we need civil society. We need NGOs, we need memorials such as our institution to build and develop a culture and an education for the prevention of genocides. It’s true that when the individuals, the survivors of the Shoah came back they truly believed this could never happen again. For years, we believed that “never again” would be enough of an educational message to convey. And I think that we must be realistic today. The Shoah in its uniqueness and as a terrible event was not enough to prevent further genocides from happening. However, as Director of the Shoah Memorial, I think that the destruction of the Jews of Europe, due to its unequaled amplitude, its systematic approach remains a singular event in the annals of history. And I believe that this is something that can be taught, can be transmitted, can be learned. I believe that it is possible from the Shoah to work, to develop a new conscience, which in individuals who will react to genocidal madness, who will rise to prevent it. And that, to me, is the meaning of today’s event. And thank you to all of you for having contributed.