Michael Posener: Thank you. First of all, let me say that it’s my pleasure to be here. And I want to, if I can, focus on a subject that I think has been raised in various contexts throughout this meeting, which is the relationship of notions of justice and accountability to the broad subjects of prevention of genocide and crimes against humanity.
In so doing, I’d like to set out an action agenda for the United States Government, which is an important player in all of this. I want to do so because I think the issue of accountability is in some ways the most salient, most important, aspect of what it’s going to take to prevent future crimes from occurring.
We talk about justice and accountability as providing -- as addressing several objectives: One is providing some redress for victims; another is deterrence; a third is building a sense of justice and strengthening institutions. Those objectives, and in particular deterrents and strengthening judicial institutions, are the future if we are to live in a world without continued recurrence of genocide and crimes against humanity.
I’d like to structure what I’m going say into three aspects. The first relates to what we and others can and should be doing with regard to efforts at a national level to address these issues. There is no doubt, and there can be no doubt, that issues of accountability are best dealt with within the society where the violations occur. It is always true that societies respond best and most effectively if they take actions themselves. If there is truth telling and official acknowledgement at a national level, it has a very salutary effect within a society in terms of healing the wounds and moving forward in a constructive way. Dealing with these issues in terms of judicial remedies is also a way to strengthen institutions that will protect against further violations.
The United States Government has been and needs to be involved in this effort in three ways. It needs to reinforce of the decisions taken by government leaders to take these very difficult issues seriously, often against popular sentiment that runs the other way. We’ve seen in the last year, two very interesting and very hopeful examples; the creation of and the completion of a report by a truth and reconciliation commission in South Africa, and more recently some arrests and beginnings of prosecutions in Argentina, a country that dealt initially with these problems by prosecuting, and then adopted an amnesty, and is now coming back in a third phase to realize the importance of official accountability being dealt with at a national level. The arrest of Admiral Massera and others -- several weeks ago is a very important development in that regard. The United States ought to reinforce publicly these sorts of efforts.
Secondly, we ought to be providing technical assistance to countries and to governments where there is the will to take these cases up, but not the capacity. There is often a combination of problems, but these efforts ought not to fail because there’s no capacity to do so.
And finally, there are often opportunities because we do have a lot of information at our disposal to make that information available as a matter of policy wherever possible to help national legal authorities prosecute their own violators.
We recognize that these issues are not always going to be able to be dealt with nationally. And the recent events in England and Spain and Chile relating to General Pinochet is a clear reminder of that. There has been some discussion at this conference of the tribunals that were set up to deal with two critical situations in the world, the former Yugoslavia and Rwanda. David Scheffer and Judge McDonald and other American leaders have been involved in strengthening those efforts.
But the ad hoc tribunals were created in the first instance, Bosnia and the former Yugoslavia, because the government of Serbia was unwilling to prosecute genocide and crimes against humanity; and in the second instance, Rwanda, in large part because there was a lack of capacity, an inability by the government of Rwanda to deal with these cases in a situation where hundreds of thousands of people were killed and the country was essentially crippled.
The most important development in the last fifty years has been the creation this year of a permanent international criminal court. And I know there’s been some discussion of it, but I just want to emphasize a couple of things about this new initiative.
It is an enormously important institution for us and for the world. It establishes a notion of collective responsibility to deal with these most egregious crimes. It assigns individual responsibility to the perpetrators and the intellectual authors of these crimes. It is intended to go after those who order and plan the genocides and the massive human rights violations that we’ve been talking about the last two days.
It is unfortunate and even alarming that the United States Government has not been a supporter of that effort. It is essential - imperative -- for all of us to begin to look at why we find ourselves in a minority of states that have essentially taken a rejectionist view of the court.
There has been -- I didn’t hear David Scheffer’s comments earlier today -- but I understand there’s been some move to try to get back into the discussion. We welcome that. But there is, at the same time, a resistance to a court that has any jurisdiction over American soldiers, which has, I think, put us in a very compromised position as a matter of principle in fighting for a strong court that will be effectiveAll of us who are concerned about these issues ought to be raising those concerns and pushing for three things:
One, that the United States participate in the next couple of years in the rule making and the structure building for the new court. It’s going to require sixty states to ratify the court for it to come into effect. That is going to happen. In the meantime, there’s going to be an effort to draw up rules of procedure and evidence, and to create the structure which makes the court a real and effective judicial institution. The United States should be involved in that effort, and not by way of trying to change the basic rules of what the court is about. There is some notion here that the U.S. is still trying to reargue notions of jurisdiction. That’s both inappropriate and counterproductive. We ought to be trying to build the institution that was created at Rome.
Secondly, the United States ought to ratify the treaty; and that’s going to be a long haul. I don’t have any illusions that it’s going to happen overnight. But people like those in this room ought to be in the forefront of trying to make this a priority item on our political agenda. There is not anything approaching a political groundswell in this country, and there are very few members of Congress even committed to doing this.
We have to adopt implementing legislation that allows the United States to be an effective participant in the process. If people are found in this country like one man from Rwanda who is now living in Texas, and who has been indicted by the Ad Hoc Tribunal for Rwanda. In this case and others we have to be ready to extradite, we have to be ready to provide whatever technical support we can, and we have to use our political muscle through the Security Council to make sure that there is compliance with the court’s orders. The United States is a leader in the world, and it’s got to be a leader on this issue of enforcing an international criminal court’s judgments and actions.
Finally, a third area, which comes back to General Pinochet. We now recognize that in addition to the international criminal court, in addition to what happens at a local level, there is an evolving trend that national courts throughout the world provide - are going to provide a forum for universal jurisdiction for the most egregious crimes; such as genocide and crimes against humanity.
The United States should encourage and support the developments that the Pinochet case represents. We ought to be more public and outspoken than we have been in saying that what the British Home Secretary has done and what the British courts have done represents an advance for justice and accountability.
We also ought to be applying our own federal law passed in 1995, which basically creates a criminal penalty in the United States for torturers who are found to be in the United States regardless of where the crimes occurred. That statute has never been applied in practice. There ought to be indictments if torturers are found here; it ought to be a policy of the U.S. Justice Department to indict and prosecute those individuals.
And finally, we have to recognize that this is a new area, an area where the principle of accountability and the principle of holding the worst violators accountable trumps our concerns about cases where there may be political prosecutions or frivolous prosecutions. Rather than being naysayers, we ought to be helping to draw up the rules of the road. This is a new, difficult, complicated area, but it’s an area where there’s an opportunity for strengthening international justice and accountability.
And if that’s our priority, let’s start with that as our -- as our opening premise and our first priority and try to build a system that works that’s both efficient, fair, and in the end provides the kind of accountability we’re all looking for.