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Program 9724
June 17, 1997


Mark Ellis, Executive Director, Central and East European Law Initiative, American Bar Association

Madeline Morris, Adviser on Justice to the President of Rwanda

William O’Neill, Consultant, National Coalition for Haitian Rights

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, a program on world affairs and the
people who shape events.

MADELINE MORRIS: The bulk of the people and in addition, the bulk of the political
actors, I think, are committed to a peaceful reconciliation of the Rwandan population. There
is a huge threat to that because there is also a constituency prepared to use force to disrupt
the reconciliation process, and that creates a very difficult situation.

MARY GRAY DAVIDSON: Crimes against humanity cry out for justice but how can a nation
torn by atrocities begin to heal?

WILLIAM O’NEILL: The fact that Raoul Cedras can sit in Panama today and collect checks
from where ever he’s collecting it and never have to face court—Haitian or otherwise is

MARY GRAY DAVIDSON: We look at 3 nations just recently ripped apart by war and oppression
and their attempts at justice on this edition of Common Ground. Common Ground is
produced by the Stanley Foundation. I’m Mary Gray Davidson.

There’s a Haitian proverb that says “the one who delivers the blow forgets, the one who bears
its mark remembers.” During this decade alone, millions of people in the world have suffered
the blows of war—outright genocide, torture and rape. My guests today have worked with 3
such countries: Rwanda, Bosnia, and Haiti. All are now grappling with the tough issue of the
best way to bring about justice and healing. William O’Neill is a consultant to the National
Coalition for Haitian Rights and worked with the U.N. human rights operations both in Haiti
and in Rwanda. Haiti, he says differs in one major way from the wars that occurred in Rwanda
and the former Yugoslavia.

WILLIAM O’NEILL: The issue—it’s a little bit different because there was never really
a war or a conflict in Haiti. It was sheer state repression against an unarmed civilian
population by the military. So you did have very serious abuses and violations. Many killings,
torture, disappearance, rape—and getting those abuses investigated and prosecuted both by
the International Human Rights mission and more importantly by Haitian governmental authorities
and NGO’s has not been easy.

DAVIDSON: Another of my guests today is Madeline Morris, Professor of Law at Duke University
and an advisor on justice to the President of Rwanda.

MADELINE MORRIS: There are certainly commonalities as well as great differences between
what’s happened in Rwanda and Haiti. In fact, my own research at this time is on a comparative
study of the handling of crimes against humanity and related crimes in the former Yugoslavia,
Rwanda and Ethiopia—another set of context, and each of which large scale prosecutorial efforts
are underway presently, but which share quite distinct differences in the particulars of each
case. My work in Rwanda has been much more applied. There I’ve worked for many months in
drafting the law that was adopted this past September 1st to organize the prosecutions for the
1994 genocide in Rwanda and continue now to work with the Ministry of Justice there on the
implementation and application of that law as well as on a program for reparations for the

DAVIDSON: My third guest is Mark Ellis, the Executive Director of the Central and East
European Law Initiative, a project of the American Bar Association.

MARK ELLIS: This project under the acronym of—CELI—provides technical legal
assistance to 21 countries in central and eastern Europe and the former Soviet Union. We
provide the assistance through local liaisons—these are U.S. attorneys who have taken a year
or two years out of their practice and we have offices in each of these countries. The purpose
is really to strengthen the legal system—the rule of law—which we think is fundamental to
the democratic societies that are being created. Specifically as to the war crimes tribunal
for Yugoslavia, we have a liaison at the Hague where we provide assistance, both to the office
of the prosecutor and also to the registrars office—particularly with the first trial
against Mr. Tadic where we provided assistance to the defense team for Mr. Tadic. The other
two projects have been advocating for a more aggressive policy of apprehending alleged war
criminals in the former Yugoslavia and the third project will be on the “rules of the road”
in providing attorneys to the Hague to assist in reviewing the files—the case files that
have been presented to them by the 3 parties.

DAVIDSON: One thing that comes to mind—we’ve been talking about the ideas of genocide
and crimes against humanity. Did those terms apply to all of these countries that we have been
talking about so far? William O’Neill, you look like you have a thought on your mind.

O’NEILL: And it’s kind of a law school question, regarding Haiti. I don’t like to get
kind of bogged down in terminology—at least when it comes to such serious abuses as those
that occurred in Haiti. There wasn’t a war—so it’s hard to say they’re war crimes—as I
said—crimes against humanity—you know, again it’s arguable and people have argued whether
they were so wide spread and systematic in Haiti to reach that level. For me the fact that
anywhere from 3 to 5 thousand people were killed that no one even knows how many women were
raped, 30,000 people took to the sea to escape an oppressive regime. It’s bad enough that it
warrants—and it got serious attention from the international community—and continues to—and also from Haitians. There was a Truth Commission established in Haiti to investigate and
shed light on some of these violations and the focus of this conference is then what do you
do? At least one of the focuses of the conference. What do you do with that information in
terms of—at least in Haiti’s case—domestic legal action, the prosecutions, when you have
a justice system that’s been so devastated, and that’s the real problem now for Haiti—that
a lot of the information now is out there. It’s not like Bosnia where, although in 3 of the
cases it is, 3 of them got taken out of the country and are now in Panama or Honduras—but
many of the other perpetrators are in the jurisdiction—some of them in prison—the real
challenge is trying to mount reasonable, fair trials at a pace that also allows the justice
system to get on its feet, and that’s really difficult.

DAVIDSON: Madeline Morris, when we’re talking about war crimes and genocide, is it a
matter of numbers that determines that nomenclature?

MORRIS: No, it’s not a matter of numbers. The definition doesn’t require any particular
numbers for war crimes, crimes against humanity or for genocide. In each of those categorizations
it has to do with “what were the actions that were done—the criminal acts—and what were
the motives and mental states of the persons responsible for those acts—but not necessarily
the numbers of victims involved.

DAVIDSON: Can someone explain to me why in the case of Haiti, there was a truth commission
established, and perhaps William O’Neill, you can explain a little bit about how that process
works. And then why in Rwanda and Bosnia the international community actually decided to set
up war crimes tribunals?

O’NEILL: First of all genocide did not happen in Haiti—no one is ever remotely
alleging that. There was no—nothing in terms of intentionally trying to exterminate a
population group which is the classic definition. And I think, I mean I’ll defer it to my two
colleagues here—but I think that probably the fact that genocide did occur in the other two
places was an important factor in leading to the creation of a tribunal. In Haiti’s case, it
was a Haitian decision to set up a truth commission as many other countries have done. To look
back into the past and try and uncover information about violations. That doesn’t preclude
domestic prosecutions. The truth commission was not set up as an alternative to prosecutions—in fact it was set up as a precedent, possibly to prosecutions. I don’t know what will happen
in the other two countries—maybe someday Rwanda may decide it would like to have a truth
commission exercise. They are not exclusive choices—you can have more than one initiative
going on and even simultaneously.

DAVIDSON: Is Haiti’s truth commission similar to the one going on in South Africa
where if the perpetrator comes forward and confesses then he or she would be granted amnesty?
Is that how it’s working?

O’NEILL: No, no that’s an innovation unique to the South African Truth Commission as
far as I’m aware. And I think it’s a good one. But in Haiti no, there was no mechanism to
encourage people to come forward like that and admit quilt. So it is over now—it’s done it’s
work—but when it did exist it had 7 commissioners—4 Haitian and 3 non-Haitian. And then
the staff was also mixed international and Haitian.

DAVIDSON: Did it work in your opinion?

O’NEILL: Depends on what your ultimate objective was. I think basically, yes. I think
it was on a shoe-string budget, barely 2 million dollars for a year and they uncovered a lot
of information about violations, and more importantly provided a forum for Haitians to come
forward and provide testimony.

ELLIS: In reference to Bosnia, remembering that they are—at the time when the
tribunal was created there was, first of all, still a war on there were 3 parties involved
with the conflict—I think there was a general sense that there would not be a consensus to
create something like a Truth Commission. I think that was accurate considering today that
there’s still very little co-operation between the 3 parties and that if it was important for
the international community to have some accountability against those that committed these
heinous crimes then the international community would have to create this independent tribunal
to prosecute them, because clearly the parties were not going to do it on their own. And I
think that’s correct.

DAVIDSON: Madeline Morris?

MORRIS: In the context of Rwanda there were a number of factors as Bill O’Neill has
said. There was a genocide; there was a huge and extraordinarily violent, and intense outburst
of violence in that country for 3 months. It happened shortly after the creation of the
international criminal tribunal for Yugoslavia. So those 2 factors together made it much more
likely that when the government of Rwanda requested that an international criminal tribunal
for Rwanda be instituted that, that would happen—rather than the suggestion of a Truth Commission
or anything else. The government of Rwanda asked for a criminal tribunal and it would have
been very odd, especially in light of the recently created criminal tribunal for Rwanda to
have some other, and I would say—lesser—response such as a Truth Commission proposed.
Having said that—it’s very true, as William O’Neill said, it’s not one or the other necessarily.
One might imagine having criminal prosecutions as well as a Truth Commission for a number of
reasons. In my mind, the foremost among those reasons is that a Truth Commission can provide a
comprehensive and overall view of the context in which the crimes occurred in a way that a
patchwork of criminal trial records wouldn’t. So you might want to have both.

DAVIDSON: We’ll pause here for a short break. You’re listening to Common Ground,
a service of the Stanley Foundation. Our topic is achieving justice and reconciliation in
countries where major atrocious have occurred. My guests are Madeline Morris, an Advisor on
Justice to the President of Rwanda; Mark Ellis, the Executive Director of the Central and East
European Law Initiative of the American Bar Association and William O’Neill, a consultant to
the National Coalition for Haitian Rights—and he’s worked with the U.N. human rights
operations in both Haiti and Rwanda. The Stanley Foundation is a nonprofit, nonpartisan
organization that conducts a wide range of programs meant to provoke thought and encourage
dialogue on world affairs. Printed transcripts and audio cassettes of this program are available
and at the end of the broadcast I’ll give you details on how you can order them.

I’m curious, particularly in the cases of Rwanda and Bosnia, and the fact
that their war crimes tribunals are ongoing, whether you feel that the countries themselves
are ready to work on achieving true peace and justice. Mark Ellis, what’s your feeling on

ELLIS: Well, I would say the evidence is pretty slim in supporting a lasting peace
right now in Bosnia among the 3 parties. I think there are individuals, groups, moderates
within each of these entities that clearly want peace, but I believe that the fact that much
of the authority is still within the hands of the 3 major political parties, there is not an
eagerness to integrate a policy that would bring about a lasting peace—and that is a real
problem at this moment.

DAVIDSON: And Madeline Morris, what about Rwanda? They’re still just barely coming back
together. In fact not everybody has—not all the refugees have even returned to the country.
Do you feel though that the bulk of the people are ready to work on healing these wounds?

MORRIS: The bulk of people and in addition, the bulk of the political actors, I think,
are committed to a peaceful reconciliation of the Rwandan population. There is a huge threat
to that because there is also a constituency prepared to use force an using force to disrupt
the reconciliation process and that—that creates a very difficult situation. I’m optimistic,
very optimistic, that it will work out right—but not easily so.

DAVIDSON: And William O’Neill, as you said, the Truth Commission has finished its work
in Haiti, but Haiti obviously still has problems. In fact I still read about the police being
a problem in Haiti. How far along has that country come in healing its wounds.

O’NEILL: I think it’s come quite a way—I mean it’s—Haiti is a much better place
for almost all Haitians now than it was in 1993-94. You’re right to mention the police. This
is again, another challenge in kinds of situations after terrible conflicts and massive human
rights violations. In Haiti’s case, they decided to create a new police force from scratch.
And the prior army was just dissolved—disbanded. And it’s not easy to create a new police
force from scratch. Everyone’s a rookie, equipment is short and there were problems. I think
though, even there, in the last 4 to 5 months, we’ve seen real improvement in the performance
of the Haitian national police. The number of violations for police abuses has dropped. The
Inspector General, I think, has maybe the most important job in the whole police force and has
taken a much more assertive role in disciplining violations and sending a clear message to the
officers and to the Haitian population that this is not the old Haitian army, and abuses and
violations will be punished and punished quickly. That’s very important to get the confidence
of the population in this new police force. And lastly the International Civilian Police
monitors there—the CIVPOL—have been very, very useful. In a way they are kind of the
replacement senior management. These are police officers who have a lot of experience based
in their home countries, who can come, and in a kind of mentoring role, give some guidance
and oversight to this rookie police force. And that has been working a lot better in the last
few months also.

ELLIS: As Bill was talking, it reminded me of—also the question of defining—kind of
a lasting peace and in what form will Bosnia exist in the future. That’s to me a real
fundamental question. Of course there’s one view that Bosnia should exist as a unified state—that’s certainly—that’s the premise of the Dayton Accords. But this is where I think you
begin to have some real problems in defining success and lasting peace if it’s defined by a
unified Bosnia. Because clearly what we’re seeing are the parties—particularly the Republic
of Sprska and also the Croatian Party refusing to accept this idea of a unified Bosnia. Now
does that mean that the region can still remain peaceful, even though you have separate
entities, or is it inevitable that if you do have separate entities and you don’t unify that
you’ll be facing again conflict in the near future? And that’s a real issue and a real
question right now.

DAVIDSON: I’m curious whether in the future any of you see a possibility for the
international community to be ready in some way to respond when these situations occur and
also be able to respond so that they won’t be so rigid and inflexible as to not really do any

ELLIS: I would like to, as I have said earlier, still stress the need to allocate
resources in the pre-conflict period. I still believe that with a relatively small investment
in countries that I would view as “at risk” that we can have a very positive impact on
creating a legal system that could in the end prevent these types of conflicts that have
emerged. And certainly assist in a post-conflict period in re-emerging as a country based on
the rule of law, and so this is an area that does not get the type of attention it should and
that’s a real problem right now.

DAVIDSON: Madeline Morris.

MORRIS: Well that certainly needs to be reiterated—Mark Ellis’s point that we need
to focus on intervention, preventive steps before conflicts or large scale human rights abuses
occur and intervention during—when we see these things actually being carried out. Not withstanding
that, we will no doubt still find ourselves, at least part of the time, in the post-conflict
situation even if we’ve been able to mitigate the problem, and there I think that, as you
said, we don’t want to create a readiness—an international readiness to respond in a uniform,
across the board way to the extent to where we try to have a “one size fits all” solution that
doesn’t really solve anything. But I think that we can develop some sets of guidelines and
approaches and even have some kind of a group of personnel or organizations ready to meet the
kinds of predictable needs that will arise. So that we can ask ourselves the questions “are we
likely to need assistance in our rejuvenating or starting from scratch with judicial
structures in nations in post-conflict situations?” Surely that’s something that we will need
and that we can be prepared for. We will have to amend and alter the particulars but we can be
prepared for that. The same with police requirements as well. Also the question about immediate
accountability while we’re building up or rebuilding national judicial structures—are we
prepared to arrest and prosecute major perpetrators of the crimes in question. There will be
different particulars, different political constraints and obstacles and different resource
requirements in play in each different context. But we can have almost a check list or a
protocol that we can go down and say—”well how does this situation fall out in terms of the
following 12 indices” and have some already thought through responses so that we don’t have to
start from scratch each time.

DAVIDSON: Well, there’s been much discussion of having a permanent international
criminal court. Has its time come yet? William O’Neill?

O’NEILL: Yeah, I think so, but again, with the right statute, the right powers and
ideally, and this gets back to, I guess some of the questions about—law enforcement and
political will. An international criminal court that didn’t have some kind of mechanism to
bring parties before it—and we want to avoid the Bosnia situation where indicted people are
walking around freely—that would really concern me, and I don’t know if it would work. And
are we then just creating another institution that might fail? But I think, yes with—and
that’s a big if—with the right kind of structure and powers and scope and acceptability by
the international community—sure. It can’t go on like this—you don’t want ad-hoc courts
created—you know, why not one for Burundi. Why not one for Liberia? Why not one for—name
it—Angola? There isn’t one for Haiti. I mean the point—the fact that Raoul Cedras can sit
in Panama today and collect checks from wherever he’s collecting it and never have to face a
court—Haitian or otherwise—is outrageous. So an international court that could bring him
to a place for trial—and he would have a lawyer and have all the full due process guarantees—that would be a great thing I think.

ELLIS: I think Bill is right on target with that issue. I have been concerned that we
don’t jump over the important issues that we’re facing with the tribunal and attempt to
embrace this new concept called the “international criminal court.” Because I think the same
issues that the tribunal is facing will be faced by this court, and we are failing miserably
right now with the tribunal. The tribunal’s not failing—the idea of the tribunal is not
failing—but those that are responsible for making certain that it has the authority to
implement its statute—this is where it’s failing. And I don’t know whether or not that will
change because we have changed horses and moved on to an international criminal court. I think
there are fundamental issues that we have to solve now. If we can’t solve those problems now
with this tribunal, I don’t hold out much hope for anything different under a new mechanism.

DAVIDSON: I just have one final question and it may seem rather naive to the 3 of you
who must be working towards this end—but given the scale of the atrocious we’re talking
about, do you really believe that justice or reconciliation can ever be achieved in these

ELLIS: I’d like to take a shot at that.

DAVIDSON: OK, Mark Ellis, we’ll let you start with that one.

ELLIS: I think in Bosnia or generally in the former Yugoslavia—you can in some ways
look back to post World War II and the atrocious that occurred during the war. The fact that
there were really no mechanisms to deal with the atrocities that occurred among the people
that make up the former Yugoslavia—those same tensions—those same frustrations have
certainly been part of the catalyst that has resulted in the atrocities that we’ve seen in
the former Yugoslavia now—and so let’s not make the same mistake—let’s deal with
accountability as we should have been dealing with accountability 50 years ago—let’s not
let this opportunity pass us by again. And I think accountability does bring a sense of
justice. And it’s only with a sense of justice that you can begin the reconciliation that is
so important for lasting peace.

DAVIDSON: Madeline Morris.

MORRIS: I think that is exactly right. I think that it’s a necessary condition. That
is—justice is a necessary condition or at least some sense of some justice having been done.
Because it’s a matter of degree, needless to say—is a necessary condition for reconciliation—which itself is a matter of degree.

DAVIDSON: William O’Neill do you care to answer this very broad question that I’ve

O’NEILL: Just to add maybe another element is a very large scale campaign in the
schools and NGO’s—on the air waves—about human rights and respect for the individual and
respect for people who are different. In a place like Haiti, and I would imagine it’s the same
in many of these other countries, getting people when they’re very young and trying to promote
these ideas that people have rights—and that’s a long term project—a very long term project—and a difficult one—but again—I don’t see any lasting reconciliation unless a really good
faith long term effort is made in that regard.

DAVIDSON: William O’Neill, Madeline Morris and Mark Ellis have been my guests on
Common Ground. William O’Neill is a consultant to the National Coalition for Haitian
Rights. Madeline Morris teaches at Duke Law School and is an Advisor on Justice to the
President of Rwanda. And Mark Ellis is Executive Director of the American Bar Association’s
Central and East European Law Initiative. 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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