THE CASE FOR A PERMANENT INTERNATIONAL CRIMINAL COURT

Program 9728
July 15, 1997

Guest

Cherif Bassiouni, President, International Human Rights Law Institute, DePaul University;
Chair, UN Investigative Commission on Bosnia

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


MARY GRAY DAVIDSON: This is Common Ground.

CHERIF BASSIOUNI: We have been conducting a study of conflicts since World War II and
we have identified close to 300 different types of conflicts totally close to a hundred and
fifty million casualties. Now that’s twice as many people killed in World War I and World War
II put together, and yet, in most of these cases we have seen that people have received
impunity.

DAVIDSON: The case for a permanent international criminal court on this edition of
Common Ground. Common Ground is a program on world affairs and the people who
shape events. It’s produced by the Stanley Foundation. I’m Mary Gray Davidson.

After World War II the victors held war crimes trials in Nuremberg and Tokyo. In more recent
years the international community, under the auspices of the United Nations, has created
temporary tribunals to try those accused of war time atrocities in Rwanda and the former
Yugoslavia. But many people feel these ad-hoc courts are not enough and are pushing for the
world to create a permanent international criminal court. Cherif Bassiouni, a professor of law
at DePaul University is one of those convinced that we need such a court. Bassiouni is
President of the International Human Rights Law Institute and he’s served as Chair of a United
Nations Committee of Experts who were investigating violations of international law in the
former Yugoslavia.

BASSIOUNI: The efforts of the world community to establish a permanent international
criminal court started really after World War I. And so it’s been going on since 1920. After
World War II, we had the two big tribunals in Nuremburg and Tokyo and then we had a host of
national war crimes tribunals and then the whole effort sort of eroded significantly, probably
because of the cold war. And then with the Yugoslavia and Rwanda situations the Security
Council established two specialized ad-hoc tribunals and it was quite clear that establishing
ad hoc tribunals presented difficulties, both practical, linguistical, as well as political
difficulties. And so I think now everybody has come to the realization that we need a permanent
institution, that we can’t reinvent the wheel every time we have a major conflict where
genocide, crimes against humanity, and war crimes are committed. And by having a permanent
institution, that body will be able to deal with these crimes.

DAVIDSON: Do you envision this as being separate from the World Court which is situated
at The Hague.

BASSIOUNI: Well, the International Court of Justice which is in the Hague is part of
the United Nations. It’s one of the bodies of the U.N. It’s statute is appended to the Charter
of the United Nations, but the ICJ, the International Court of Justice, deals exclusively with
disputes between states. And it deals essentially with civil or political matters in the
largest sense of the word. To give you an idea, there have been claims dealing with commercial
matters, with navigational rights, with fisheries, with the Continental Shelf or oil and gas
exploration. There have also been cases involving, for example, the Iran hostage taking in ’79
or a case brought by Nicaragua against the United States for the para-military activity of the
contras. So it covers a wide range of issues, but they are mostly issues between governments.
The permanent international criminal court will deal with individuals. People who are
individually responsible for committing the major crimes, which are genocide, crimes against
humanity, and war crimes.

DAVIDSON: OK, so we’re talking of almost exclusively about genocide and crimes against
humanity. Are there situations—you mentioned the Nuremburg trials, the Tokyo trials, are
there cases since then where you think that we could have used an international criminal court?

BASSIOUNI: Well, at DePaul’s International Human Rights Law Institute, we have been
conducting a study of conflicts since World War II. And we’ve identified close to 300
different types of conflicts totaling close to a hundred and fifty million causalities. Now
that’s twice as many people killed as in World War I and World War II put together. And yet
in most of these cases we have seen that these people have received impunity. There have been
very few actual adjudications of criminal responsibility. Whenever there were political
settlements to solve a problem, justice has been sort of bartered away. There have been some
national prosecutions. There have been some truth commissions so has been some effort at
developing accountability. But what we need to do is to have a permanent institution dealing
with the three major crimes; genocide, crimes against humanity and war crimes, so that this
permanent institution is insulated from the politics of developing a peace settlement.

DAVIDSON: Who would do this international criminal court?

BASSIOUNI: Presently the General Assembly of the United Nations has established what
they have called a Preparatory Committee. The Preparatory Committee has been mandated by the
General Assembly to develop a statute for the court. A statute is presently being drafted. The
mandate is to complete the drafting by April ’98. Italy has offered to host what is called a
Diplomatic Conference which is a conference of all member states to ratify the convention.
First to sign it at the time of the Diplomatic Conference which is scheduled for June ’98 and
from then on to ratify the Convention.

DAVIDSON: And who would be in charge of indicting and then of course, rounding up the
people who have been charged with crimes?

BASSIOUNI: Well, the prosecutor will be the one who will investigate the case, prepare
an indictment. At the present it is contemplated that the indictment would have to be approved
by a chamber of the court, so that the prosecutor does not act unilaterally without some type
of judicial control. So the prosecutor will take the indictment and the evidence, similar to
what in the United States is called probable cause hearing or a preliminary hearing and then
ask the Chamber of the Court—we don’t know if the Chambers will consist of only three judges
or five judges—who will then approve the indictment—and that’s the way the case commences.
As to who will round up the people—the court is going to be created by a treaty and
therefore states will be free to join that treaty or not. Those states who will join the
treaty will be bound by the treaty and by the statute. And the statute provides that the
various states have the obligation to collaborate and assist and cooperate with the court in
helping to secure evidence and arresting people and in transferring people to the courts
jurisdiction for purposes of trial.

DAVIDSON: Now one obvious difference between this international criminal court and the
Nuremburg and Tokyo courts is that it would not be a court held by the victors and it would
seem that that would be an inherent advantage.

BASSIOUNI: Well, it would certainly give more credibility and more legitimacy to the
court. But the disadvantage is that at Nuremburg and Tokyo, there was a victor who controlled
the territory, so there was no question about arresting the persons who were accused, of
having the witnesses available, of obtaining the evidence. It will be much more difficult in
the case of the permanent court. Much like with the Yugoslavia court, it will still have to
depend on the political will of the governments who have joined in the court to help in
arresting people, in producing the witnesses, and in helping obtain the evidence.

DAVIDSON: Now you mentioned early on the Ad-hoc courts that have been set up to try
accused perpetrators in Bosnia and Rwanda. And in the case of Rwanda we know there have been
problems, there’s just been a report issued about this court that was been set up three years
ago enumerating all of the problems that court has had. Do you feel that if there had been a
permanent international criminal court in place that things could have moved along much more
swiftly?

BASSIOUNI: Well, the answer is definitely yes. The problems in the Yugoslavia court
and the Rwanda court are somewhat different. In Rwanda the situation is this: That the
government of Rwanda has in its custody between 75,000 and 90,000 persons, most of whom have
been in jail for two or three years, and they could have been tried, if the courts set up by
the U.N., would have been functioning. And here the main fault really is—lies with the U.N.—with the office of Legal Advisor, who was supervising the court and who was largely derelict
in making sure that the personnel responsible, particularly the registrar, functioned well.
The Yugoslavia tribunal on the other hand is the exact opposite. The tribunal is there, it
functions, it functions well, it is a very effective operation, but it is unable to reach a
number of people. 74 indictments were issued, only seven people are in custody. And the
problem is that some of the governments involved, and particularly Serbia and the Republic of
Sroska which is the Serb side of Bosnia, are unwilling to cooperate and unwilling to surrender
people. The government of Croatia has recently become more difficult to deal with as well. And
so the problem of the tribunal there is not its inability to function, it functions very well,
but its inability to seize people, and that’s a question of political will.

DAVIDSON: Do you think though that these two courts have only been made possible
because the cold war is over and that there can be more cooperation within the Security
Council? I’m thinking back to say, what happened in Cambodia when there were an estimated
three million people who were murdered, which I would put under the term genocide, and yet
nothing of this nature of these war crimes tribunals occurred in Cambodia.

BASSIOUNI: Well, we can say that there is certainly an influence of the cold war,
however the Cambodian situation is a little different. By the way, the estimates that I see is
two million people killed, but that still brings it up to 40% of the population. Out of 6
million people or 5 1/2 million people, to have two million people killed. I mean, think in a
society four out of ten people who have been murdered, then yes it was a form of genocide.
Though unfortunately there is difficulty fitting this type of mass killing under the narrow
definition of the Genocide Convention, because the Genocide Convention says that the killing
must be with the intent to eliminate a whole group. And these were Cambodians killing Cambodians
for political purposes. And that’s a weakness in the definition of genocide itself that hasn’t
been corrected. But the problem there was essentially an outgrowth of the Vietnam War in that
the Khmer Rouge, who did almost all of those killings, were in effect supported by the Chinese,
and the government opposing them, which was representing the victims, was supported by the
North Vietnamese. And the United States, as a sort of a knee-jerk reaction against the North
Vietnamese, sort of didn’t allow the world community to go after the Khmer Rouge, and thought
that the only way to obtain a peace settlement is to include the Khmer Rouge as part of the
peace settlement and as part of the coalition government. But the government of Cambodia has
always wanted to prosecute and there has been a number of studies looking into the advisability
of whether the Cambodians should set up their own national tribunal or whether and
international ad-hoc tribunal should be established. The problem however in Cambodia that
should be recalled is that most of these killings were done between ’75 and ’85 and so we’re
speaking of 12 years later trying to gather the evidence, it becomes a very difficult task.
Except if one would make the case against the leadership, then it becomes fairly easy to make
a case against the leadership. But it appears so far that the political will to go against the
Pol Pot and the senior people in regime—that political will is still lacking. And the
present government in Cambodia is not strong enough to be able to do something about it
because the Khmer Rouge are still armed, are still out in the country, and they can still do
a lot of damage.

DAVIDSON: We’ll pause here for a short break. You’re listening to Common Ground,
a service of the Stanley Foundation. My guest today is Cherif Bassiouni, Professor of Law at
DePaul University, and President of the International Human Rights Law Institute. He also
served as Chair of the U.N. Investigative Committee on Bosnia. Common Ground is
a service of the Stanley Foundation a non-profit, non-partisan organization that conducts a
wide rage of programs meant to promote thought and encourage dialogue on world affairs.
Printed transcripts and audio cassettes are available of this Common Ground program.
At the end of the broadcast I’ll give you details of how you can order.

DAVIDSON: Now some countries have attempted to address atrocities of their past with
things like truth and reconciliation commissions such as South Africa has been doing. Haiti
has done that and in South America, several countries have done that a decade or two ago. But
are you saying that an international criminal court is needed when the atrocities are even
greater; when they fit the definition under the Genocide Convention when there have just been
massive killings of people—is that the difference that we’re talking about here?

BASSIOUNI: Yes, I think that the difference that is presently emerging is that the
three major categories of crimes—that is genocide, the crimes against humanity, and war
crimes—are those crimes for which there has to be prosecution. It doesn’t matter whether the
prosecution is by a national system or by an international system. But these three crimes are
contained in international conventions. The obligation to prosecute exists in these conventions
and therefore no state can give impunity to those people. The problem is that sometimes
national justice systems do not have the capacity or the effectiveness or the political will
to carry out these prosecutions, and that’s why we need an international body. Now if we
create an ad-hoc body every time, we’re reinventing the wheel, and we’re not giving it the
type of legitimacy that a permanent institution has and that’s why we need to have a permanent
body. On the other hand, there are other types of crimes and other types of wide spread and
systematic human rights violations—some of these are crimes are like torture and slavery and
slave-related practices, or extra-judicial executions—but then arbitrary arrest and detention
and other deprivation of human rights, which are not criminalized but which are quite
serious—and it’s within that range of other crimes—other than the three major crimes,
that it’s possible to develop other accountability mechanisms, including truth commissions,
if that serves the purpose of reconciliation. It’s not intended to be a fig leaf or a way to
cover up for crimes, but as a genuine instrument of identifying what happened, how it happened,
to give recognition to the rights of victims and then to facilitate peace and recognition.

DAVIDSON: You’ve already defined genocide. Could you give us short hand definition of
crimes against humanity and war crimes?

BASSIOUNI: Crimes against humanity emerged at Nuremburg and they were basically defined
as widespread and systematic policy based on persecution of a given group of people whether
it’s based on religion, race, or political beliefs, or others. So the targeting of a group of
people for systematic violations including mass killings, rape, torture, imprisonment,
deprivation of property and other inhumane acts like that—so that’s what crimes against
humanity includes. War crimes are those crimes that are committed by combatants in times of
war—they’re covered by the four Geneva Conventions of 1949 and two additional protocols done
in ’77—but they’re also covered by a number of other specific conventions that prohibit for
example the use of certain weapons in times of war. And these conventions, the Geneva
Conventions in particular, which have been ratified by almost all countries in the world,
about 180 countries, are now part of the national criminal justice laws of these countries
and the national military justice systems. So there is no question as to what the specifics
of these crimes are and of their recognition in the national laws of the different countries.

DAVIDSON: Do you imagine that having an international criminal court in place could
serve somewhat as a deterrent to potential perpetrators?

BASSIOUNI: Well, that would be one of the principal goals of the court, and that is,
if perpetrators know that they’re going to be prosecuted and punished that they will hopefully
be deterred. Now this may not deter the type of tyrants that we have seen throughout history.
But it may deter a number of senior or even junior officers who will be able to say “well,
I’m not going to obey this order and I’m not going to commit this act because I’m liable to
be prosecuted.” And so we do hope that it will have a deterrent action and therefore that it
will prevent some harm. Obviously, it is not going to prevent all harm, but it will prevent
some, and if we can create an institution that can minimize the amount of human harm that
occurs, then I think it will be a very useful step to take.

DAVIDSON: Is there momentum out there for establishing a permanent international
criminal court?

BASSIOUNI: There is a very strong momentum. Obviously the fact that the General
Assembly has established a Preparatory Committee, has given it a specific mandate, and a
deadline for its work, is a clear indication of it. But I can tell you as Vice Chairman of
the Preparatory Committee, and the one who’s attended consistently all of the meetings since
’95, that at the beginning there were some governments that were saying no. Today the only
government that is saying no is China. There isn’t a single government that says no, although
some governments are…

DAVIDSON: Are these among the Security Council members or are these…?

BASSIOUNI: No, no, this is all the 186 members….

DAVIDSON: Through the whole General Assembly there’s only one saying no?

BASSIOUNI: That’s right. The only one saying no. Now there are countries who are not
in favor of it. But they’re not saying no. They’re doing things that are making it difficult
without saying no, but at least that’s a progress. Japan, Mexico, Brazil, India, Pakistan,
Indonesia are some of the countries that are sort of reluctantly going along and it’s quite
clear that they’re not favorable to it. However they’re at least not saying no. Conversely
there’s a very strong momentum, there’s a group of 48 countries that have organized and they
call themselves “The Like-Minded States” and those are the governments who are pushing
forward and who are quite committed to it. So the moment we have a statute drafted and a
diplomatic conference, we can count on at least one-third of the countries of the world who
are already committed to it and I think it will be easy to move to at least one-half of the
countries of the world in a short period of time.

DAVIDSON: This is a pretty basic question, but is the pursuit of justice in these
situations of grave atrocities necessary in order for a country to carry on in a peaceful
fashion?

BASSIOUNI: It depends on the type of conflict. I think that in this respect, world
public opinion is probably way ahead of the position of governments. World public opinion
naturally reflects an instinct of justice that ordinary people believe in. Anybody, you and
I, who feel that we have been victimized by a crime, we want justice as human beings. And
certainly, in a society that’s been raked by civil strife, by different types of war, where
terrible crimes have been committed want justice. We’re not speaking of a situation where
harm occurs, if you will, as an expected consequence of conflict. We’re not speaking of a
situation where combatants fight according to the rules of warfare and kill each other. We’re
speaking of massive killings of civilians, of systematic rape of women, of destruction of
private property, of looting, of torturing, we’re speaking of the types of crimes which no one
who has any sense of humanity will want to see go and benefit from impunity. Now governments
are still playing the game of “real politik” and they want a settlement and particularly in
the United States, you know, we want a quick fix for everything. We want to go in and get out,
you know, we don’t want to risk any causalities, we don’t want to risk anything and so we’re
willing to barter anything—everything is for sale or for trade, and the thing that usually
sells best is justice. You sit in with a tyrant or a dictator or a General who has committed
all these crimes and you want to make a political settlement, you trade off with impunity.
You send them off in exile with a golden parachute and call them an honorable General, and
allow them to keep the money they’ve stolen. It’s unfortunately that type of “real politik”
that governments still exercise which is completely out of sync with the values of ordinary
people.

BASSIOUNI: We’re undoubtedly living in a world that is inter-related—in a world in
which justice is truly indivisible—and we can’t really turn a blind eye to crimes committed,
whether it’s in Rwanda or Yugoslavia or Cambodia, just because they’re far away in distant
lands and distant people. Really what affects one group of people in one part of the world
effects all of us. Not only in a humanistic sense, but even in a policy sense, in a political
sense, in an economic sense. We live in a very interdependent world and so it behooves us in
the United States to take leadership in the direction of justice to have our government follow
the high moral road. There might be a price to pay obviously, whether it’s economic or a human
price, but leadership is never easy to obtain. And we’ve paid a very high price for 50 years
during the cold war, economically and in human lives, and yet we have never really invested
in peace and justice and now is the time for us to invest in peace and justice on a sustainable
basis that will give us greater opportunity for peace in the future than all of the nuclear
weapons and weapons that we have accumulated in the past.

DAVIDSON: Cherif Bassiouni has been my guest on Common Ground. He’s President of
the International Human Rights Law Institute at DePaul University where he teaches law. He was
also Chair of a United Nations Committee of experts who were investigating crimes committed
during the war in the former Yugoslavia. For Common Ground, I’m Mary Gray Davidson.

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

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