The protection of human rights was a founding principle of the US and is still carried as the focus of our foreign policy. The tragic events in the world demand a response from the parties involved as well as from the world as a whole.
The past 10 years have been difficult for the US. There have been changes in how wars are fought. There are new demands on soldiers to limit human rights abuses and excessive use of force and minimize civilian casualties.
Justice is a requirement for lasting peace. In most cases of conflict, the international system is merely an observer. In many cases only a threat of force or force itself is enough for the international community to intervene. We must decide on a case by case basis the best way of moving forward. The commissioner working on Nazi crimes has said that it is not too late to work on these issues and if this prevents even one soldier from committing these crimes the effort has been worth it.
The prevalence of cell phones and social media makes it much less likely to not know about human rights abuses. Human rights are sometimes a point of tension between countries. They would prefer to keep this issue out of international diplomacy. This can be seen right now in Syria. We may be getting closer to action but we have been faced with a lack of any unanimous decision in the UN on this issue.
Respecting human rights and allowing people to choose their own governments is the best way to build stable societies.
PANEL DISCUSSION
Q: You mentioned the criticism towards the ICC that it is mostly focused on African cases. Why is this?
Amb. Rapp: First you have to understand how the cases come to court. The first three cases were referred by the countries themselves because they felt they couldn’t handle it on their own. In the case of Kenya they failed to do it themselves, although they tried, so they asked the ICC to help (although in the end the case wasn’t referred). In the case of Côte d’Ivoire, that was sent to the court two times, although they are not a member. In the case of Darfur there was nothing being done on the national level.
There is also the case of preliminary examination, such as in Colombia, where the ICC is keeping a watch and helping, but encouraging the national system to deal with the matter themselves and not take it to the international level. The people usually frustrated are the ones who are being prosecuted, who say: ‘Why me? Why not the other guy?!’ There is no real reason to complain because there are real crimes being committed in Africa and that’s not discriminating Africa but actually helping them.
Q: How do you provide justice when the conflict is still going on? Where is the balance between justice and the requirement for peace? Is it enough to prosecute only a few top leaders?
Dvorkin: The most complicated cases arise in situations where the conflict is still going on, such as in the case of Syria right now. It may be problematic to pursue justice without paying any attention to how this process might impact the situation and you have to be careful with the timing. There may be trade-offs involved. Like in Afghanistan, where a government with greater legitimacy has been put in place and no justice system has been set up to deal with the long list of crimes committed in the decades before, because that would make the goal of achieving peace and stability more difficult.
The system of prosecuting the ones most responsible for the crimes is right. We should focus on the leaders and the society should find its own way of dealing with the issue of prosecuting the people involved at the lower levels.
Q: What happens when the UN SC has made a decision, sent peacekeepers and it turns out that the peace keepers themselves have violated human rights? This has happened in some cases, like in the D.R. of Congo.
Zyberi: It’s a complex subject, what laws apply to peacekeepers. You have a lot of countries who send troops. Humanitarian law is applicable to peacekeepers. There have been a number of reports by the UN which deal with these issues. They agree that there needs to be more training and awareness and more prompt action against the offenders. The nations need to make sure their troops know these things and know that they take their own country’s laws with them when they go on a mission.
There have been cases where a number of troops have been recalled from duty and have faced trials in their own countries.
Q: The casus belli for Iraq was whether or not there were WMD-s. Just recently the question of whether Assad is preparing to use WMD against his own population has arisen. What do we do in such a case? Are chemical weapons the casus belli for intervention where human rights have obviously not been?
Amb. Levine: The decision to react in any way is a process that is sparked by the events on the ground and that decision is enormous. In Syria, you can’t separate the use of WMD from human rights; it’s more like an enormous abuse of the rights that could provoke even an unilateral response.
Q: Will the US ratify the ICC in the near future?
Amb. Rapp: We made it very clear that the US signature is still on the ICC treaty and we intend to act consistent to the purposes of the treaty and support the prosecutions. The US is very slow to adopt treaties; it takes 2/3 of the Senate, even treaties that have wide support. There is a treaty on people with disabilities that was discussed this week and was not passed. The US has its own way of responding to problems and there has to be a very strong argument to set one in motion. There is the treaty on the protection of children and the only countries who have not ratified it are Somalia and the US. Our approach is to uphold these values, sometimes not inside the institution but in full cooperation with it.
Q: International formal concepts are not necessarily what people on the ground think. Does the same apply to justice? Like in places like Libya or Syria. Does it have any practical implications?
Dvorkin: Generally the desire for justice is strongly present on the ground in situations where there have been atrocities and there is often a strong demand for international justice. It depends on the situation if there is a strong desire for domestic processes. One thing that is important is that justice mechanisms should always bear in mind the importance of reaching out to the people on the ground and maintaining their support.
Amb. Levine: There has to be a sense in the society that major injustices have been addressed before you can move forward, but it doesn’t have to be so in every case and it doesn’t always have to be in a formal way.
Q: What could be Assad’s reaction to a case in the ICC be?
Q: If Assad were to be provided with a face saving opportunity to leave the country, then could this outcome be plausible or relevant?
Q: How should we explain the recent decisions to the Serbian population to help them overcome frustration and help them to perceive the ICT on Yugoslavia as an unbiased institution?
Q: Isn’t there a biased selective approach to human rights abuses? For example North Korea, Syrian Rebels and others that are not being pursued strongly.
Rapp: If Assad could go tomorrow and the crimes would stop, this would be wonderful but there is no willingness and this is usually the case with these types of people. There has not been any historic proof that this would work. If you give up the idea of justice, then the only thing you see is more violence pursued with impunity. And there are cases where both sides are being prosecuted.
Obviously the results might not come out in a way where everybody will be happy.
Zyberi: This dilemma, should we save lives or focus on accountability, seems to be a false choice, because there isn’t any willingness on the side of Assad to give any power away. The international community should speak with one voice. With regard to the latest ICT decisions, the cases are decided on the basis of the evidence given. The old narratives in these countries are still quite persistent because there has not been any effort to accept what happened in these countries and I’m not sure this should be the responsibility of the international justice system. There doesn’t seem to be any biased selection, though of course there is room for improvement. There has been a learning period and I think that from now on we will be able to see better results.
Levine: There are factors that govern the decision making. During the conference we have focused on the highest cases but a slow gradual advancement of human rights across the board can go a long way in improving the future.
Dvorkin: It’s inevitable in the system we have today that it’s political and this entails trade-offs and some element of doing what you can, where you can. It’s much harder to pursue justice for what happened in Chechnya for example and this is the reality of today’s system. But it’s much better to have a partial system than to do nothing. We should note that it’s not a complete system right now but we should do everything we can to help victims.