Back to Common Ground Archive


Program 9601
January 2, 1996


Doug Cassel, Executive Director, International Human Rights Law Institute, DePaul University

This text has been professionally transcribed. However, for timely distribution, it has not been edited or proofread against the tape.

DOUG CASSEL: The United States has shown that you can both negotiate a peace
agreement—it remains to be seen whether we will have an actual peace, but at least a peace
agreement—and insist on not officially letting alleged violators of human rights in the past
off the hook with an amnesty and insist on measures to cooperate with the War Crimes Tribunal.

KEITH PORTER: Finding both peace and justice in Bosnia. This week on Common Ground.

CASSEL: Justice is important not only for its own sake but also because it is a way of
taking what is otherwise perceived by the victims as collective responsibility. For example, the
Bosnia Muslims just blaming all of the Bosnian Serbs for the atrocities when obviously they’re
not all responsible for them. And individualizing that responsibility and to say, you were the
one who gave the order; you were the one who committed the torture; you pay the price. It is not
proper or fair or just to blame your neighbor down the street who happens to share the same
ethnic identity as you do.

It is my hope that this agreement will set a new international standard for making sure that
justice is not sacrificed in the name of peace.

PORTER: Common Ground is a program on world affairs and the people who shape
events. It’s produced by the Stanley Foundation. I’m Keith Porter. Long-term peace in Bosnia is
far from a done deal. Among the many items in the peace plan put together in Dayton and signed in
Paris are only a few mentions of the international War Crimes Tribunal set up by the United
Nations to prosecute criminals of war from the countries of the former Yugoslavia. But this lack
of attention is interpreted as a positive by supporters of the tribunal.

CASSEL: I think the agreement is a definite plus for the War Crimes Tribunal. The Dayton
agreement contains a number of provisions requiring the parties in the Bosnian conflict, as well
as elsewhere in the former Yugoslavia, to cooperate with the tribunal in a variety of ways.

PORTER: This is Doug Cassel, executive director of the International Human Rights Law
Institute at DePaul University. Cassel and institute president, Cherif Bassiouni, worked on some
of the earliest investigations of war crimes in the region.

CASSEL: It does not go so far as to literally require that senior officials such as Mr.
Karadzic, the political leader of the Bosnian Serbs and Mr. Mladic, the military leader of the
Bosnian Serbs, be turned over this instant to the tribunal or necessarily ever. But that,
frankly, would have been a Utopian proposal, because if that had been a demand for inclusion in
the peace agreement, there would have been no peace agreement. So in the real world, this
agreement is not only very favorable to the tribunal, but it is the best agreement with which I’m
familiar to end any of the conflicts around the world and is important not only for what it
requires but for what it does not do. It does not permit or allow or sanction any amnesty for the
major war crimes violators in the region, and that is a very important step forward. So on the
whole, I view this as a plus. Those members of the United States delegation who fought hard for
these provisions, among them John Shattuck, the Assistant Secretary of State for Democracy, Human
Rights and Labor; and Ambassador Madeleine Albright, our ambassador to the United Nations,
deserve a great deal of credit for a substantial achievement.

PORTER: I was surprised, in fact, to hear Shattuck, Albright, and Ambassador Holbrooke,
as well, say some fairly strong things about the War Crimes Tribunal, about the place of it in
sort of international justice.

CASSEL: I wasn’t surprised in two cases out of the three. That is, Ambassador Albright
has been consistently the most outspoken, steady, firm adherent within the State Department of
the necessity for taking the war crimes in the Yugoslavian conflict seriously and for prosecuting
them before the tribunal. So her continuation along that same path is a credit to her, but it’s
not a surprise. Nor is it a surprise that John Shattuck, whose job after all is human rights and
whose entire career has been dedicated in one way or another to human rights, would also favor
the strongest possible provisions.

What is surprising, and this is no criticism of Mr. Holbrooke who I do not know personally, but
what is surprising is that the senior US negotiator as well as the president of the United States
and the Secretary of State would take as strong a position as they did, which we see reflected in
the Dayton agreement.

That’s a credit to all of those involved, but certainly to those like John Shattuck and Madeleine
Albright, who have been fighting for these provisions for years. It’s the right thing to do; it
puts the lie to the old claim that you can’t protect human rights in the context of a peace
agreement. You’re trying to ask for too much. It’s not in the real world. Well, this is the real
world. It has been done. The United States has shown that you can both negotiate a peace
agreement—it remains to be seen whether we will have an actual peace—but at least a peace
agreement and insist on not officially letting the alleged violators of human rights in the past
off the hook with an amnesty, and insist on measures to cooperate with the War Crimes Tribunal.

So it is my hope that this agreement will set a new international standard for making sure that
justice is not sacrificed in the name of peace.

PORTER: Leading up to the agreement in Dayton, it seemed to me that a lot of the
speculation was that we could either have a peace agreement and sort of sell out the War Crimes
Tribunal; or we could maintain our commitments with the War Crimes Tribunal, but we wouldn’t have
peace. And it seemed like that was sort of the straw man battle that was being set up.

CASSEL: And not just in that case, but in so many others in the past. If we look, for
example, at the approach that former President Jimmy Carter took last year in Haiti, in order to
negotiate the departure of General Cedras and his bloody regime from that island. President
Carter agreed, apparently very readily, to a sweeping blanket broadly and vaguely worded amnesty
as an inducement for General Cedras to leave. Now, fortunately, after the deal was cut and after
Cedras left, the Haitian National Assembly interpreted this hastily drawn up amnesty agreement in
a way so as to exclude gross violations of human rights. But, nonetheless, the approach of Carter
in that situation showed very little concern, or perhaps very little belief, that it was possible
to secure justice and at the same time arrange the equivalent of a peace agreement.

One might say now, that’s not being fair, because here he was negotiating under enormous time
pressure. The US planes were on the way from North Carolina. He had to cut a deal quickly, and so
that’s a different case. Perhaps so, but President Carter’s track record in a number of places
around the world suggests that his general approach and his general belief have been—and this is
consistent with that of many journalists, many of the expert commentators who we all were reading
prior to the Dayton agreement, and many public officials and many diplomats around the
world—which is that you have to give up justice to get peace. When he had a brief mission to
Bosnia a year or two ago, briefly brought in to see if he might be able to broker something, he
was also at that time talking about an amnesty for Bosnia, which this Dayton agreement rejects.

While I have a tremendous respect for the good intentions of President Carter, who has certainly
devoted his ex-presidential years to the active pursuit of peace and humanitarian goals around
the world, I have long had a difference of opinion and judgment with him as to the importance of
making sure that every possible step is taken in the context of peace negotiations to try to
secure justice for the violations. I think the Dayton agreement shows in at least one case, a
very important case, a critical case, that President Carter might perhaps take another look at
the approach he’s had to these questions in the past. Certainly, I would encourage him to do so.

PORTER: Back on the War Crimes Tribunal, there had been some speculation that the
tribunal might indict—I suppose there still is speculation—that they might indict Slobodan
Milosevic. Now, if they had done so prior to the peace talks, he couldn’t have come to Dayton. He
couldn’t have represented the Bosnian Serbs, and we probably couldn’t have had the agreement that
we have now. The fact that he’s not been indicted, do you think that’s a (this is purely
speculation) case of political restraint on the part of the tribunal or is it that they don’t
have the evidence, the goods, to indict him?

CASSEL: They’re getting close to Milosevic. Shortly before the peace agreement was
concluded in Dayton, or initialed in Dayton, they indicted, I forget whether it was two or three,
Serbian generals, not Bosnia Serb generals under Karadzic and Mladic, but Serbian Serb generals
who report directly to Milosevic. So they were already getting very close to him. You’re correct
that I do not have inside knowledge as to exactly what the motivation of Judge Goldstone and the
information available to him at this particular moment is, but I see two explanations for the
fact that Milosevic has not yet been indicted.

Number one, you don’t go after the king unless you’ve really got the goods on him. It may be that
as a prudent prosecutor Judge Goldstone, for whom I have the highest respect, is simply waiting
until he has what he considers to be a very strong case of command responsibility by Milosevic
and that he’s exhausted, or if not exhausted at least pursued, the major leads and made sure that
he’s gathered the strongest possible case before indicting Milosevic. And as matter, based on
what I know of the evidence and of the law, I would think there is a very good chance, not a
certainty but a very good chance, that at some point in the next several months, Milosevic may
well be indicted. But it may be that the reason he hasn’t been indicted yet is a perfectly legal,
professional reason that has nothing to do with politics.

Now the other explanation is, and frankly I’m inclined to credit the former explanation, but the
other explanation is that he’s already got the goods on Milosevic, and he held off simply in
order to make Dayton possible. If that were in fact the case, I think I would not be highly
critical of Judge Goldstone for that because as you point out, if he had indicted Milosevic last
month, we wouldn’t have a peace agreement. But even though that’s a more popular interpretation
on the part of sophisticated observers in the press, I think the former legal interpretation is
more likely to be correct.

PORTER: If we take this to a more general level and think about this process, maybe we’re
going to have tribunals like this in the future. Like you said, indicting the king is a big deal.
In our nation-state sovereign system, indicting a sitting president raises all kinds of new
questions, doesn’t it?

CASSEL: Not really. In any given case, it raises very serious political questions, you
certainly don’t want to accuse a high-ranking official unless you have solid evidence to support
it. As you know, the tribunal has already indicted the two senior officials of the Bosnian Serbs,
so they’re not afraid to go after kings. But does it raise new questions? No, because those
questions were essentially put to rest 50 years ago at the Nuremburg tribunal and in its charter,
the provisions of which have now been repeated in the charter for the tribunal in The Hague
responsible for the prosecutions in Bosnia and Rwanda. And those provisions say that the fact
that you are a senior official, the fact that you are the senior official, confers upon
you no immunity whatsoever when you commit crimes against humanity. The principles of Nuremburg,
which the tribunal currently in The Hague is attempting to vindicate, are precisely that no one
is above the law when it comes to the most serious offenses against human dignity and human life.

PORTER: We’re talking on this edition of Common Ground with Doug Cassel, executive
director of the International Human Rights Law Institute at DePaul University. Common Ground
is a service of the Stanley Foundation, a nonprofit, nonpartisan organization that conducts a
wide range of programs meant to provoke thought and encourage dialogue on world affairs.

Radovan Karadzic has said that if he is arrested there will be, in his words, carnage. Should we
take his threat seriously, should we be moved by his threat?

CASSEL: Not in the least. There has already been carnage for a good deal of which he is
personally responsible. Now some of that carnage is the normal, lamentable but normal, incident
of war. And he is no more responsible for that than any of the other political or military
officials involved in the war. But, unfortunately, a lot of the carnage in Bosnia and in other
theaters in the region has been unnecessary carnage, has been the slaughter of civilians, unarmed
civilians, noncombatants. The whole history of the development of the rules of modern warfare
beginning in the middle of the last century has been to say, if you’re going to have a war, at
the very least you must make every reasonable effort to spare the civilians from unnecessary
suffering and certainly not to deliberately attack noncombatants to fight, as it were, a fair
war, if there is such a thing.

The history of the conduct of the war by the Bosnian Serbs who have been led throughout this
period by Mr. Karadzic on the political side, Mr. Mladic on the military side, has been to
disrespect that humanitarian development of the law in the last century and to deliberately
target civilians, noncombatants, hospitals. This kind of conduct is carnage. Far from refraining
from prosecuting Mr. Karadzic in order to avoid his threat of future carnage, he must be
prosecuted for the carnage for which he is already responsible, both because justice demands it
in this case and because we want to send a message to any future Mr. Karadzic that, if you’re
going to participate in a war, you had better abide by the minimum rules of humanitarian conduct
or you may face a credible risk of serious consequences to yourself.

PORTER: What are the potential sentences?

CASSEL: The sentences do not include a death penalty. At Nuremburg, as you’ll recall, the
death penalty was allowed and 11 of the 21 defendants ultimately convicted were in fact executed.
There has been a tendency, primarily in Europe but in other parts of the world over the last
fifty years, away from the death penalty, the United States obviously being an exception to that
tendency. So there was not really a political consensus in the United Nations in the early 1990s
to include the death penalty as a sentence which The Hague tribunal for the former Yugoslavia or
Rwanda is permitted to impose. So the maximum sentence in The Hague will be life imprisonment.

That issue became a very important bone of contention incidentally between the government of
Rwanda and the United Nations in setting up a tribunal for Rwanda, because the government of
Rwanda, the state of Rwanda, does permit capital punishment there. And the Rwandan government
argued that it would be unsatisfactory if the maximum punishment of those responsible for the
genocide in Rwanda was limited to life imprisonment while some of those who carried out their
orders and who might be tried before Rwandan national courts would be facing execution. An
understandable concern on the part of the Rwandan government, but nonetheless the United Nations
insisted in both cases (Yugoslavia and Rwanda) on limiting the punishment to life in prison.

PORTER: It’s my understanding that NATO forces in Bosnia will not pursue indicted war
criminals; but, if they come in contact with them, they are empowered to arrest them. Is this
satisfactory, or should we pursue them?

CASSEL: It’s a reasonable provision. If you start getting the NATO peacekeepers into the
pursuit business, you cross the line from peacekeeping to becoming, in effect, a party in the
conflict, at least a de facto line. The result is something like we saw in Somalia when the UN
peacekeeper troops crossed the line from peacekeeping to being perceived as an active party,
because they were pursuing the general responsible for some of the alleged atrocities in that
country. It’s a reasonable line to draw, and it should be kept there.

PORTER: Any legal concerns there? I mean anything about the NATO forces and the way they
may come in contact with these people, or are you concerned at all that they won’t recognize them
or know who they have?

CASSEL: I’m not specifically familiar with what training these troops, these United
States and multinational NATO troops, will have with regard to whom they should detain and how,
but I know that in general the expansion of peacekeeping responsibilities on the part of the
United Nations with national armies participating over the last five years has been so dramatic
that military training both in the United States and in the United Kingdom and other countries
involved here has expanded tremendously in areas of how to handle peacekeeping responsibilities
and that among the elements of that training include provisions for detaining people without the
excessive use of force, for not detaining people unless there is reasonable cause for doing so.
So I think there is reason to believe that our troops over there should be prepared to treat any
potentially indicted members of the Bosnian forces, the Bosnian Serbian forces or other forces in
Bosnia, reasonably. And once they have them in custody, of course, they will find out who they

PORTER: The United States has been asked to provide intelligence regarding war crimes to
the tribunal—satellite photos and radio and telephone conversation recordings—is the United
States cooperating in this area?

CASSEL: For a good long while it was not. Recently we have seen press reports that the
United States says it is going to or is in the process of turning over to Judge Goldstone all of
the CIA and other intelligence information that he has requested. I don’t know if anyone outside
the CIA and Judge Goldstone know whether, in fact, they have already fully met that announced
public intention, but there did seem to have been in the month of November a turnaround in US
policy on that issue. Before, we were either blocking it or at least foot-dragging. For the first
time in November after Judge Goldstone went public with his protestations, the United States
publicly committed itself to turning over this information, as well we should.

PORTER: A couple of final questions for you here. Judge Goldstone has said that all of
the hatreds and memories and atrocities go back so many centuries in Bosnia and that throughout
all that time no one was ever punished for these crimes and that his hope is that the tribunal
will be able to break that cycle by bringing individuals to justice. Do you think that’s a
possibility? Is that a hope that would come out of this tribunal?

CASSEL: Yes, absolutely. The principal argument for the proposition that peace and
justice are not as inconsistent as people like President Carter might have thought, is precisely
that. That justice is important not only for its own sake, not only as a deterrent to future war
criminals in other theaters, but also because it is a way of taking what is otherwise perceived
by the victims as collective responsibility. For example, the Bosnian Muslims just blaming all of
the Bosnian Serbs for the atrocities when obviously they’re not all responsible for them. And
individualizing that responsibility and to say, you were the one who gave the order, you were the
one who committed the torture, you pay the price. It is not proper or fair or just to blame your
neighbor down the street who happens to share the same ethnic identity as you do. So by taking
the guilt and individualizing it and imposing appropriate punishment on those who have been shown
to be involved in the atrocities, you both satisfy the desire for justice on the part of the
victims and make it clear that not all members of the ethnic group involved should be blamed for
something over which they had no control.

PORTER: The global Red Cross movement issued a statement calling for a permanent world
criminal court. What do you think of this idea? Is this a good idea that we sort of
institutionalize this process?

CASSEL: It’s an idea that is long overdue and is now realistically on the agenda for
consideration by the world for the first time. It is under active discussion by a working group
of the UN General Assembly which had two meetings this year. Recently the General Assembly,
within the last two weeks, passed a resolution setting up a further series of meetings during
1996. The Clinton administration has said that in principle it is in favor of establishing a
permanent international criminal court for genocide, serious war crimes, and crimes against
humanity. There are some major questions about how to do it which may yet prevent that
institution from being created, but there is at least a commitment on the part of this United
States administration and many other governments to try to move in that direction. I think it is
no longer Utopian to think that perhaps before the end of this century we will have created on a
permanent basis a court capable of doing the kinds of things that the ad hoc tribunal in The
Hague is currently doing only for the former Yugoslavia and Rwanda.

PORTER: That is Doug Cassel, executive director of the International Human Rights Law
Institute at DePaul University. For Common Ground, I’m Keith Porter.

Our theme music was created by B.J. Leiderman. Common Ground was produced and funded by the Stanley Foundation.

Copyright © Stanley Center for Peace and Security