A New Era In Prosecuting Crimes Against Humanity?

A New Era In Prosecuting Crimes Against Humanity?

MR. KOJO NNAMDI

13:23:52
Welcome back. In May, Guatemala's former military leader was convicted on charges of genocide and crimes against humanity during his dictatorship in the early '80s. The conviction was overturned and sent back to court but many considered this a milestone in international criminal justice. The first time a country has prosecuted a former head of state within the country's own criminal justice system. Some credit the International Criminal Court, the ICC with laying the groundwork for such trials. However, that court is struggling with credibility elsewhere, particularly in Africa where's it's been accused of race hunting.

MR. KOJO NNAMDI

13:24:29
Joining us now to discuss this is Diane Orentlicher. She is a professor of international law at the Washington College of Law at American University. She was formerly with the office of war crimes at the State Department. Diane Orentlicher, thank you so much for joining us.

MS. DIANE ORENTLICHER

13:24:43
It's a pleasure to be here, Kojo.

NNAMDI

13:24:44
In the segment before this, we discussed the appointment of Samantha Powers, the U.S. Ambassador to the UN. I'm just interested in your thinking. Her background is in human rights. What do you see as the significance of this choice?

ORENTLICHER

13:24:56
Well, Samantha's obviously well known, as your previous segment indicated, for her very strong voice before she went into government and while in government on behalf of human rights. I guess what I would add to that is that in the -- over the course of four years working in the White House, she showed herself to be really a consummate public servant. And I think she will really marry her values, which are so important to representing the United States abroad, to a really keen sense of the importance of integrating our sort of moral principles into the whole of our foreign policy. So I think it's a really strong appointment.

NNAMDI

13:25:35
On to the business at hand, the Guatemalan court found the former military leader Efrain Rios Montt, guilty of genocide on May 10. What was significant about that ruling?

ORENTLICHER

13:25:46
So it was historic, as you indicated, because it was the first time a domestic court rather than an international court had held a former head of state guilty of the crime of genocide, which is a particularly difficult charge to prove. So it was historic in that sense. But I think the larger significance is that Guatemala has, for really a very long time, represented a country where very serious human rights violations were cloaked by impunity. It was extremely difficult for a very long time for Guatemalan courts to take charge of dealing with really horrific crimes. And that's begun to happen in recent years.

ORENTLICHER

13:26:35
But this country which, you know, again seemed to be lagging behind the region in accountability, then kind of leap-frogged over other countries and had this quite extraordinary historic trial.

NNAMDI

13:26:51
However, that historic trial, the historic ruling that resulted from it was overturned shortly after by Guatemala's constitution court. What happened?

ORENTLICHER

13:27:01
So it's a really legally, incredibly messy situation. And I'm not going to try to summarize what happened. Somebody who covered the trial for the Open Society Foundation, Emmy McClain, summed up what happened in part by saying something to the effect that what this demonstrated in the short term is that tactics of delay in obfuscation can be a viable defense strategy.

ORENTLICHER

13:27:30
And those who observed the trial uniformly report that the defense strategy, the most important element of their strategy was to throw as many wrenches into the judicial machinery as possible, and to really try to gum up the works of the judiciary. And in the short term that worked. The case, as you mentioned, is now supposed to go back for retrial. So this sage is by no means over.

ORENTLICHER

13:27:57
I also think -- and I really don't think I'm just being an optimist by returning to these points -- I do think that regardless of what happened on May 20 when the initial verdict was nullified, this case demonstrated a culmination --not the final culmination but a culmination of years of progress on multiple fronts. And I think that that should not be lost.

ORENTLICHER

13:28:28
And above all, what happened is an incredible testament to the dedication commitment of victims in Guatemala, civil society who have been pretty relentlessly determined to seek justice, as well as the efforts of multiple outside actors. The United Nations, other actors have played an important part over years in trying to help Guatemala strengthen its judiciary. And so I think we've seen significant progress. The outcome to date has been disappointing but I think we're going to continue to see overall progress in Guatemala.

NNAMDI

13:29:07
And we'll also be talking about the International Criminal Court, inviting your calls at 800-433-8850. Do you think justice for war crimes decades after the fact is, well, too late, 800-433-8850, or better late than never?

ORENTLICHER

13:29:25
Bless you.

NNAMDI

13:29:26
Thank you. You can also send email to kojo@wamu.org or send us a Tweet at kojoshow. Many news reports have called the Guatemala trial the first domestic prosecution of a former head of state. That's apparently not quite accurate. It's the first time a former head of state was prosecuted specifically for genocide. Is that correct?

ORENTLICHER

13:29:44
Correct. There have been -- there's been at least one effort that did not go anywhere, in Bolivia at a prosecutor former head of state for genocide. But this is the only one that really got anywhere. And I mentioned earlier that part of why this trial so far has been significant is that Guatemala was lagging behind many other countries in Latin America. And, in fact, in Latin America in particular we've seen a significant number of prosecutions, including former leaders for human rights violations.

NNAMDI

13:30:16
Our guest is Diane Orentlicher. She's a professor of international law at the Washington College of Law at American University. She was formerly with the office of war crimes at the State Department. There seems to be some discussion as to whether genocide did in fact take place in Guatemala. The current president Otto Perez Molina says the human rights violations that occurred do not, in fact, amount to genocide as defined by international law. It's not unusual for the charge of genocide to generate debate and disagreement, is it?

ORENTLICHER

13:30:49
No, it's not. I think during the past couple of decades, the one situation that immediately comes to mind where there wasn't controversy involves the 1994 genocide in Rwanda. But almost every other situation where charges have been brought, there has been significant debate. And that's not surprising. It's an extremely difficult legal standard to prove in court. And so when the genocide charge is brought there's almost certain to be debate, as there has been in Guatemala.

ORENTLICHER

13:31:24
If it's useful to indicate why the court found that there was genocide here, the evidence includes -- there was statistical evidence introduced in trial indicating that in the region where -- that was the focus of trial, a member -- a person who was an Ixil Mayan individual was eight times -- eight times more likely than someone who was not a member of the Ixil Mayans to be killed. There was other statistical evidence. Eighty-three percent of those who were killed during the longstanding conflict in Guatemala were Ixil Mayans and so on and so forth.

ORENTLICHER

13:32:05
And so there was a lot of strong evidence. And as you indicated, as is often the case, there's always debate about -- or almost always debate about whether genocide occurred.

NNAMDI

13:32:16
In 1999, President Bill Clinton went to Guatemala and apologized for the U.S. support of the military dictatorship there. So we know that the U.S. role in Guatemala during this period is one that was not looked on with favor by a lot of people, including the administration. But the U.S. was not mentioned in this case at all. How come?

ORENTLICHER

13:32:41
So it was a criminal trial and criminal prosecutions are designed to do one thing and that is determine the guilt or innocence of the specific defendants in the dock. And there were two in this case. They are not designed to provide a broader historical reckoning. So quite simply, the United States was not on trial in this proceeding.

NNAMDI

13:33:04
General Rios Montt is now 86 years old and the crimes were committed, oh, three decades ago. It would appear to most onlookers that the wheels of justice, even though I guess that some people are glad that they have turned, they wonder why they turned so slowly.

ORENTLICHER

13:33:21
You know, it's a great question. Often it takes a really long time for a country that has descended into a really serious place of mass atrocities to recover from that. It's not a small thing at all. There was a lot of particular things that accounted for the delay. Riot Montt enjoyed parliamentary immunity until January...

NNAMDI

13:33:43
Because he was a member of parliament….

ORENTLICHER

13:33:43
He was a member of parliament.

NNAMDI

13:33:44
...until 2012.

ORENTLICHER

13:33:45
Exactly. And so charges were brought when he lost his immunity. But he was untouchable legally for a long period in the legal system. So -- but it's a huge dilemma for many countries that it can often be difficult to reach a historic set of prosecutions until defendants are old. That's happening right now in Cambodia where the surviving leaders of the Khmer Rouge are now on trial. But one of the few defendants in these proceedings was dismissed from the proceedings because she had dementia. And another recently died.

ORENTLICHER

13:34:27
And so that's -- you know, it is a phenomenon that we've seen before. It's heartbreaking and obviously raises dilemmas. Obviously victims would like to see justice come sooner.

NNAMDI

13:34:41
As we've said, the case of Guatemala might be significant because the International Criminal Court is not involved that it's a domestic prosecution. But there are other cases around the globe unfolding that do involve the court. One involves the former Yugoslavia. Can you remind us, if you will, about what happened there and perhaps the conflict's most visible face at this point?

ORENTLICHER

13:35:03
So in the 1990s, as the former Yugoslavia broke up, there were ethnic conflicts in several parts of the former Yugoslavia. The most sustained and vicious conflicts and violations took place in Bosnia for about three years in the 1990s. Two of the leaders of the Bosnian Serbs who were -- are thought to be most responsible for those violations are currently on trial. One is Radovan Karadzic, the other is Ratko Mladic. Both of those men were at large for many years. It took a long time for them to be apprehended and transferred to The Hague. So here too, justice has been slow in some ways.

ORENTLICHER

13:35:49
Recently starting in November there have been a series of judgments by the court. Some by its appeals chambers and some by the trial chamber, Acquitting high profile defendants. And as the Tribunal is reaching the end of its now 20-year life, those decisions have really created quite a sensation, raised lots of concerns about its performance at the end of its life.

NNAMDI

13:36:20
Didn't Radovan Karadzic claim that he was promised immunity by a high ranking U.S. official, Richard Holbrooke?

ORENTLICHER

13:36:27
He did. At an earlier stage in his trial one of his defenses was -- he argued that the late Richard Holbrooke promised him immunity as part of Holbrooke's efforts to bring peace ultimately successfully to Bosnia.

NNAMDI

13:36:42
But the U.S., in fact, does not even participate in the International Criminal Court.

ORENTLICHER

13:36:47
So the United States doesn't -- is not a party to the International Criminal Court. It has been involved more in the ICTY, the Yugoslavia Tribunal. And the president of that tribunal is an American judge. The United States, although it is not a party to the ICC, has moved closer to the court under the Obama Administration, which undertook a comprehensive review of U.S. policy toward the ICC and has been -- and this administration has been supportive of the specific cases before the ICC.

NNAMDI

13:37:23
Why is it that the U.S. refuses to participate in full with the ICC? Is it because the objection to having Americans prosecuted before the ICC?

ORENTLICHER

13:37:35
So can I just, before I answer that question, first mention one...

NNAMDI

13:37:37
Sure.

ORENTLICHER

13:37:38
...really intriguing development? A few months ago one of the more notorious at large fugitives from the ICC, Bosco Ntaganda, a really notorious warlord in the Democratic Republic of the Congo who also had been at large for a really long time and doing all kinds of -- reportedly doing terrible things during that period, surrendered. He surrendered and the place he went to surrender was the United States Embassy in Kigali.

ORENTLICHER

13:38:07
So although the United States is not a party to their own statute, ironically it ended up playing an important role in facilitating the arrest of this notorious warlord to the ICC. Come back to your question, why the United States is not a party. I think the reasons have evolved over time. Initially when the court was recreated there were many apprehensions on the part of the then current administration that the court would be driven by sort of unaccountable mavericks who would have an anti-US agenda. And I think by, you know, a pretty common agreement, that has not happened.

ORENTLICHER

13:38:51
Today I think the reasons are more complex. I would say the United States is incredibly slow to ratify treaties...

NNAMDI

13:39:00
...as a general rule.

ORENTLICHER

13:39:01
...as a general proposition. I think it took the United States 40 years to ratify the genocide convention after signing it when the text was first adopted. So the United States just does not ratify treaties very readily. But, you know, I think it's in sort of watchful and cautiously supportive mode right now.

NNAMDI

13:39:24
Indeed, some see the U.S. becoming more cooperative with the international court. But we got an email from Chuck in Bethesda who says, "The U.S. does not ascribe to the International Criminal Court. How can we hold ourselves up as a global arbiter of justice?" Let me ask that to our other listeners, 800-433-8850. Do you think that an international court should have the authority to prosecute Americans? Do you think the United States should become a member of the International Criminal Court? Give us a call, 800-433-8850. You can send email to kojo@wamu.org.

NNAMDI

13:39:59
You have said that Kenya is one of the biggest tests that the International Criminal Court has faced. What's going on there?

ORENTLICHER

13:40:06
So the Court got involved several years ago in Kenya which is a state party, dealing with the violence that broke out after elections -- presidential elections in December 2007. This was an extraordinarily -- excuse me -- serious moment in Kenyan life, and really appeared -- Kenya appeared to be poised on a much even more serious escalation of violence. Kofi Annan, former secretary general of the U.N., got deeply involved along with other actors in trying to ultimately, successfully, pulling Kenya back from the brink.

ORENTLICHER

13:40:48
One of the things that emerged from that period of pulling Kenya back from the brink was a commitment that there would be justice for those who were behind the post-election violence. And Kenya set up a commission of inquiry that looked at the violence. It recommended prosecutions. The consensus that emerged from this commission was that there should ideally be prosecutions in Kenya, but if Kenya wasn't prepared or able to do this, that the case should be brought to the ICC.

ORENTLICHER

13:41:22
A lot of effort was made to encourage Kenya to prosecute these cases at home. Ultimately it did not, and so the ICC opened an investigation. I think if you asked people why did they think it was a good idea for the ICC to get involved in that case, Kenyan civil society was very supportive of this, would say that they thought that it was important to break the cycle of impunity in Kenya around election-related violence. And there was a huge fear that if the ICC didn't get involved, given the impunity in domestic courts that there would always be similar violence the next time that there were presidential elections in Kenya. So that I think was a reason a lot of people supported ICC involvement.

NNAMDI

13:42:13
I've got to interrupt because we've got to take a short break, but oh, you were going to fast forward? I was going to do that.

ORENTLICHER

13:42:16
Yeah. I was just going to fast forward. Two of the suspects that the ICTY has identified subsequently ran for office together and were elected president and deputy president.

NNAMDI

13:42:26
They are currently president and vice president of Kenya, elected in March, both facing charges of crimes against humanity about the ICC. If you have questions or comments about that, give us a call. 800-433-8850. You can also send email to kojo@wamu.org. Where do you think the international criminal court should focus its attention? It's been accused of race hunting. I'm Kojo Nnamdi.

NNAMDI

13:44:28
Welcome back. Our guest is Diane Orentlicher. She is a professor of international law at the Washington College of Law at American University, formerly with the Office of War Crimes at the State Department. We're currently talking about the International Criminal Court, its relationship with the United States, and I guess also its relationship with Africa. Before we took the break we talked about the fact that Kenyan civil society wanted the International Criminal Court involved because of the violence accompanying elections in 2007, and the fear of violence in subsequent elections. There has been a subsequent election, Diane Orentlicher. Talk about that.

ORENTLICHER

13:45:06
So in March, as I mentioned before the break, two of the suspects before the ICC joined together on a common ticket to run for president and deputy president -- vice -- I'm sorry, deputy president respectively, and won. And they're theory was that by being on a common ticket they might help defeat the ICC cases against them. For obvious reasons this presents a huge challenge to the court. But what I think is a critical point that often gets lost, at least in coverage in this country, is that those elections were largely peaceful, and everyone I have spoken to in Kenya, and experts on Kenya outside the country who have followed this election, agree that the fact that the ICC was involved in the country contributed to the peaceful nature of those elections.

ORENTLICHER

13:46:00
So I think that as we assess the whole picture of the complexities of the ICC involvement, we shouldn't lose sight of the fact that in one significant way it's made a huge contribution.

NNAMDI

13:46:12
Here now is John in Baltimore. John, you're on the air. Go ahead, please.

JOHN

13:46:17
Well, I'm originally from Kenya, and I tend to disagree with your guest because I tend to feel that the people who are the (unintelligible) who are the president and the former prime minister. And I kind of feel, and this is my second part of my comment, I also tend to feel like the whole International Court is targeting African countries because I don't hear them going to North Korea, I don't hear them going to other countries. Why is that so?

NNAMDI

13:46:48
Well, allow me to add a little bit to your question because Uganda's president, Yoweri Museveni, who was the man who sent the ICC its first case, Uganda, because they couldn't prosecute the Lord's Resistance Army themselves, however, he is now denouncing the ICC and the African Union which celebrated its 50th anniversary last week. Now it says that with the charges against the Kenyan leaders in the African Union there have been accusations of race hunting in the case of Kenya, and that seems to be what's John's question is also implying.

ORENTLICHER

13:47:22
Mm-hmm. So this challenge from the African Union I think is really one of the biggest challenges the ICC has faced and continues to face in its work. You asked why only African countries. It has -- there are a number of reasons for that. One is that unless the Security Council refers a situation to the Court as it did with respect to Darfur, Sudan, and Libya, the ICC only has jurisdiction with respect to State's parties, those who have ratified the court.

ORENTLICHER

13:47:55
And so it can't just roam around the world and pick out countries that it thinks would benefit from its attention. Its jurisdiction is limited. Another fact that I think is often lost in the discussion about the relationship with Africa is that many of the Court's cases, and it doesn't have that many, came as a result of Africans referring the situation to the Court. So in Uganda, for example, President Museveni himself turned to the Court and said would you please take this case involving the Lord's Resistance Army for us.

ORENTLICHER

13:48:34
So it wasn't a matter of the ICC going after Africans, it was a matter of Africans who were suffering atrocities going to the Court and asking for assistance. The fact that all of the Court's cases so far do involve African counties, nonetheless obviously raises that concern, and I think, you know, the Court will continue to face a major challenge as long as the African Union takes a hostile position toward it. And I also think it's important to say the African Union doesn't represent the position of all African states. There are very strong supporters of the Court among African countries who do not follow the line of the African Union.

NNAMDI

13:49:20
Become some people would say the African Union represents the heads of state.

ORENTLICHER

13:49:25
You know, obviously the representatives of heads of state are the strongest voices at the AU, and the remarks of Museveni that were mentioned have been made twice recently. One at the most recent AU summit, but also at the inauguration of the new Kenyan president. But yes. It's a -- African Union summits are a forum for African heads of state to express their views.

NNAMDI

13:49:49
John, thank you for your call. We stay with this topic for awhile as we move to Emmanuel in Arlington, Va. Emmanuel, you're on the air. Go ahead, please.

EMMANUEL

13:49:58
Well, thank you, Kojo. I just want to intervene about the case of the president of Kenya and the vice president who are accused by the International Court. I believe that the Kenyan people have said what the Court should follow -- the Kenyan people have elected them knowing this. It means that they are not concerned. I believe that the Kenyan people should not be judged, because if you judge the president -- if the Court judges the president and the vice president when they have been fairly elected by the Kenyan people, that will be judging the Kenyan people. I believe that this case should not be...

NNAMDI

13:50:49
Well, Emmanuel, if you're like me, remember that this was a fairly close election, then to say that the Kenyan people elected them, I think is not correct. To say a majority of voters in Kenya elected them might be correct. So do you ignore the concerns of the people who did not elect them?

EMMANUEL

13:51:07
So what is democracy? That's the dictator of (unintelligible) .

NNAMDI

13:51:12
No. Democracy says that they won the election, but does that mean they are therefore absolved of all allegations of crimes of human rights violations?

EMMANUEL

13:51:21
Well, I'm against the human crimes, the war crimes. I'm against all this. But for the time being, as far as the president and the vice president are running Kenya and they have been fairly elected, there should not be any concern. Maybe they are going to wait for their immunity to be out.

NNAMDI

13:51:46
And I suspect, and, of course, Diane Orentlicher is the expert here, that are not likely to be very aggressive prosecutions while they are in office. Some people said that they could be tried by Skype maybe?

ORENTLICHER

13:52:00
So the deputy president has asked to be able to participate by Skype so that he doesn't have go to the Hague, and the prosecutor is opposing that motion. The court has indicated this week that it's willing to consider holding at least some of the proceedings either in Kenya or in a nearby country so that the trial will be closer to home. On the broader point, you know, I think -- I don't have a lot to add to what Kojo said, which I think was highly relevant, but I think it's important to understand that what Kenyans are choosing is both to have a democracy and the rule of law, and civil society in Kenya has been so strongly in favor of accountability.

ORENTLICHER

13:52:53
And so it certainly can't be the case that if you elect someone president that all outstanding charges are, therefore, forgiven and go away, but it is obviously critically important that the ICC prosecutor has to prove her case. She -- these people will have, I believe, a very fair trial.

NNAMDI

13:53:15
Speaking of prosecutors, and thank you for your call, Emmanuel, a new prosecutor took over at the ICC a year ago, and that apparently initially put the African Union and the Court on better terms. Tell us about that.

ORENTLICHER

13:53:27
So Fatou Bensouda had been the deputy prosecutor under the first prosecutor, Luis Moreno Ocampo, an Argentinean. She was in fact endorsed -- her candidacy was endorsed by the African Union with Luis Moreno Ocampo's term was nearing an end. So she was the AU candidate for this position. She's from Gambia, and initially, relations between the African Union and the ICC warmed up after she became the president. They have more recently stirred up again, and I think the Kenya prosecution is part of that.

ORENTLICHER

13:54:13
Whatever Museveni's motives are for attacking the Court, he's been stirring things up as well. There's a lot of speculation in the African newspapers about what's going on with Museveni, but it's most unfortunate given that there had been some healing of relations between the two institutions to see the more recent attacks.

NNAMDI

13:54:34
Back to the issue of what the U.S.'s role should be, if any at all, in the ICC, we got an email from Tim who says, "I'm not buying it. The guest says the U.S. is slow to ratify treaties. It's clear we're afraid the International Criminal Court could be used to prosecute us for war crimes and Guatemala, El Salvador, Iraq, Afghanistan." And then we got an email from Lee in Martinsburg who said, "There is good reason the International Criminal Court has to step into places without functioning judicial systems, and that is also why the U.S. is right not to submit to the Court. Our system is one of the fairest and most respected in the world."

NNAMDI

13:55:15
And then there is Andrew in Alexandria, Va. Andrew, you're on the air. Go ahead, please.

ANDREW

13:55:21
Yes. Hi, Kojo. I'm not very deep in this subject, and I'm only just hearing something about it, but I -- yeah. I'm okay with Americans being tried with the Court. One of the questions I had in my mind was why are some countries in and why are some countries not in support of the ICC? In other words, if you're big and you have all this, you know, like a judiciary and all those things, what would -- what is the demarcation line between those countries who do support ICC and the countries who don't care to?

NNAMDI

13:55:49
Diane Orentlicher?

ORENTLICHER

13:55:52
Well, that's a great question. I don't know that there's a single answer, but I think there is a different legal culture in many of the countries that are parties to the ICC, European countries for example, tend to sign up to human rights treaties. I still am going to going stand by what I said earlier about the United States' approach to treaties in general being one of the key factors. It's not everything, but I think it's significant. Countries that have gone through serious human rights violations, whether in the distant past, as in Western Europe, or more recent past as in Africa, tend to be more willing to sign on to treaties that have rigorous enforcement mechanisms, in part because it is believed that the reason is that they fear that their own countries could once again in the future descend into the kind of lawless violence that they saw in the past.

ORENTLICHER

13:56:46
And they want kind of an external guarantee that if that ever happens to them, there will be recourse.

NNAMDI

13:56:56
Is there a developing sense that the International Criminal Court may have served its purpose, that many of these cases can and should be tried domestically instead of in the Hague?

ORENTLICHER

13:57:06
So I think that there is a growing consensus, and when I say growing, I suppose I'm contradicting the word consensus, because I don't think everybody's in the same place on this, but there's an emerging view that it is far better to have prosecutions done domestically whenever possible. In fact, I think most people would say that. Where I think there is still a difference of views is what you do about situations where countries are unable, or unwilling to bring perpetrators to justice. And in those situations, what is the proper role for the International Criminal Court.

NNAMDI

13:57:46
Diane Orentlicher is professor of international law at the Washington College of Law at American University, formerly with the Office of War Crimes at the State Department. Thank you for joining us.

ORENTLICHER

13:57:56
It's a pleasure. Thank you.

NNAMDI

13:57:57
And thank you all for listening. I'm Kojo Nnamdi.
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