[MUSIC]. Well, thank you all for being here. And a special thanks to Lisa Shields and Richard Hoss for bringing us all together today. Over the past seven years, I've worked with UNHCR and I've travelled around the world to try to bring attention to refugees and internally displaced persons. And it's been a remarkable education. On my last trip to Chad I asked a group of refugees, what do they need, what are their concerns. And one woman said, better access to water. Another said, medicine. Another, better tents. And this young boy raised his hand and he said, we need a trial. And he heard that morning on BBC radio that the ICC has issued arrest warrants. And it meant something to him. He was asking for what any of us would ask for, having been violated. Having had many horrific things happen to his family. And yet, in my heart, I knew that he may never see that trial. That justice often seems like a luxury for the rich and wealthy nations. In far too many places I've been, I've seen refugees return to live among the same people that attacked them. Peace is placed before justice, often instead of justice. And often at the insistence of the perpetrator. And this is happening today with Joseph Kony in Uganda and with President Bashir in Sudan. They are threatening more violence and delaying or blocking aid if we attempt to bring them to justice. And often we listen to them. We let them dictate what will happen, we let those who destroy their countries decide the future for their countries. Now I believe after finding myself returning to countries, who after a brief period of peace are again at war. That there is no enduring peace without justice. I've seen refugees whose rations were cut nearly in half, and I've seen them waiting for the aid truck to arrive. Just to find out that the aid relief was stolen by the rebels who are still active. And I've talked with little kids who had bruises and they showed them to me and they said someone came and they gave us new school supplies. But the bad guys took them away. because the bad guys were still there. And I've sat in a tent with women who were about to be returned to their homeland. Women whose daughters were raped, and husbands were killed, and many of their sons also killed or tortured. And I've heard them ask, how is it safe to go back? And I've watched aid workers struggle to explain that some things have been signed, some people have shaken hands. But what they don't say is that aid in their host country has run out, because the international community wants to see returns. And wants to see progress. But that really nothing has changed to ensure their safety, that they are returning to the same lawlessness that sent them running in the first place. And I've seen these same aid workers tear up when they put these ladies on the buses, and say, I don't know what we're sending them back to. Common sense tells us that when the risks are weighed, the decisions are made very differently. When crimes against humanity are punished consistently and severely, the killer's calculus will change. And when a killer is allowed to walk away from his crimes. I believe that also tells him something. It sends a message to the next that they need not worry, that they will most likely not be held accountable for their actions. I believe that the existence of trials alone has the potential to change behavior. But ultimately, we need to arrest those who are indicted. And the Sudanese arrest of Alec Tushev appears to be a positive development. But not if it becomes a bargaining chip that'll stop others from being brought to justice. Without an arrest, we tell the victims of these atrocities that impunity is the rule of law. Now I don't know if the ICC is the answer. And I don't know what type of court is or what it would need to be for all of us to agree and make it strong enough. I have no idea. And after seven years of traveling into the field I find that I have a lot I need to learn. But I do know this. No mother who had her children killed in front of you, her. No young girl sold into slavery. No boy kidnapped and forced to be a child soldier. And no young girl like the three year old I met in Sierra Leon who had her limbs cut off should be expected to simply forget. No one should have to chose between peace or justice and that young boy in Darfur who asked for a trial deserves one. So thank you very much for letting me speak[NOISE] and I'll pass this on to[INAUDIBLE] . [MUSIC] >> The philosopher Immanuel Kant once said, there shall be justice though the heavens may fall. But in this day and age, peace negotiators are often interested in negotiating away justice. [SOUND] If it will bring an end to a crisis. I am Michael Scharf, and in today's session we're going to be looking at the tension between peace and justice. The objectives that we'll cover, is first looking at what are the reasons why peace negotiators are so interested in bargaining away justice. Second, we'll look at whether there are limits to the ability to trade justice for peace. Sometimes there is a duty to prosecute. Sometimes there isn't. Next we'll be looking at the definition and contours of those international crimes that have a duty to prosecute. Grave breaches of the Geneva Conventions, genocide, torture and crimes against humanity. Let's begin with our simulation. Now, those of you that have done the reading, and some of you who have already gone online with your comments to the reading. Know that we have created a fictional country called Togoland. This is based loosely on the situation that happened in Haiti in 1994. So the facts to summarize, in our fictional case are these. First of all, the country is made up of two ethnic groups: the Heautonomy, which is the majority, and the Teautnomy, which is the minority. The president of the country is a Teautnomy, from the minority party. His country's administration has been accused of all sorts of corruption. And while the Vice President is out of the country attending a meeting in Geneva, the President has a heart attack. And General Sedrock, who is the chief of the military, seizes power in a blood less coup. Next, over the next few days General Cedras rounds up the leaders of the old regime which has been accused of corruption. And he has them waterboarded, which you remember from our last session is a simulated form of drowning, which many people believe is torture. Most of these people then confess, whether it's true or not, that they were corrupt, and he has them summarily executed without sending their cases to trial. Meanwhile, the Vice President in Geneva calls for strikes at the cobalt mines and for protests. And people line up at the Togoland Square, which is sort of like Tiananmen Square, from history, and the strikes begin. And so, the new General, who's in charge of the country, decides to order his troops, to make an example. And 10,000 people who are gathered are shot upon, 7,000 of them die in 15 minutes. A couple of days later, the UN imposes an embargo on the cobalt mines, and freezes the assets. And this forces the two parties to the peace negotiations. On May 25th, the peace negotiations break out, and that's the subject of your simulation. The, peace negotiator here is Kofi Annan, the former Secretary General of the United Nations. We have General Cederack and we have Madam Erickson. And their lawyers have to decide what can they decide to negotiate with? What can they bargain for? What will it take to get General Cedrack to relinquish power and give it back to Madame Erickson and the democratically elected government? And more importantly, are there legal problems with some of those suggestions. So we have looked through all of the suggestions that you have made online. And these are some of the ones that have surfaced. One option was, and this of course was the one that was preferred by the General and his staff, let's have a complete amnesty. An amnesty means let's say that there can be no legal prosecutions, no civil trials for damages against the General. And if he is such immunized, he would be happy to relinquish power under those situations. The advantages are that that can stop the atrocities, it will facilitate the regime change. But the disadvantages are that it breathes contempt for the law and it can lead to vigilante justice. The victims' families are not going to be happy with the fact that the perpretrators have gotten away with mass murder. Now, another wrinkle of this that might be a fall-back position for the General is that there could be a truth commission. There have been many truth commissions established around the world, some of the most famous of which were in El Salvador. And in South Africa and the advantages of a truth commison is that they can create a historic record of what happenned. They can make reccomendations for change. And they can also be tied to reparations which means giving compensation to the victims. And also something called lustration. Which is a word that means keeping the perpetrators from ever being allowed to hold official office or be in the military in the future. Now, the problems with the Truth Commission approach are similar to those of Amnesty. It's not thought of as a real trial, and so the evidence is not seen as credible. The individuals can be named without due process. And this could be bad, because if you were named in the public report of a Truth Commission, and you haven't had due process. You haven't been able to confront your accusers, you're going to go through the rest of your life with a stigma. And worse, you may have a, a virtual target painted on your back, where the victim's families are going to try to take you off. Just because you've avoided justice. Now, there have been many exile for peace deals along these lines in history. And so the General can point to some of these, for example, this is the picture of Raoul Sed Cedras. Who was the military leader who siezed power in Haiti in 1994 he ended up relinquishing power in a deal that sent him off to Panama. Were he's living a comfortable life in a giant hill top residence. Then you have the case of Charels Taylor from Liberia who was responsible for many of the atrocities in neighboring Sierra Leon. After he was taken from power, he went to Nigeria and was given a comfortable amnesty there for several years. Untill he started trying to assasinate other leaders throughout Africa. And the international tribunal closed the special court for Sierra Leone that was created for these attrocities. Closed the loop on him and ultimately he was surrendered to the Hegue, where he's been prosecuted and convicted. Then there's the case of Saddam Hussein. Now Saddam Hussein, in the last days just before the invasion of 2003. The Bush Administration said, Saddam, if you and your family will go to neighboring Bahrain. We've negotiated a deal where you can go into retirement, and we won't have to invade your country. He turned that down and, and we know how that ended up. Not well for him. There's the case of Idi Amin of Uganda, who after he fell for power, spent the rest of his life, three decades, living a fairly comfortable life in Saudi Arabia. You have the case of Muammar Gaddafi, in the summer of 2011 when there were air strikes against Gaddafi. The United Kingdom actually brought up the idea that if Gaddafi would leave power, the air strikes could stop. And they could avoid a lot of bloodshed. Like Saddam Hussein, Gaddafi didn't take that and it didn't work out so well for him as well. Now, the current situation is the case of Syria and there have been proposals for Mr. Asaad, the President of Syria, to go to Russia. And have a regime change that is peaceful. And so these exile for peace deals are something have happened frequently. The other option, the ones that the Vice president Madame Erickson is going to want to push for, are prosecution options. The first would be a domestic prosecution, domestic trials. The strengths of course, are that the victims can attend the trial, and see justice done. It creates local media coverage. The population is more likely to believe the judgments of the trial. And here I can give you an example from Nuremberg. As you remember from the last class session, the Nuremberg trial prosecuted the Nazis before an international tribunal. And there were surveys done of the population of Germany, where they asked two questions. Question one was: Did you believe that the Nazis were guilty of the crimes for which they were prosecuted at Nuremburg? And number two: Did you think they had got a fair trial? And overwhelmingly, percentages over 85%, in each of these surveys for a period of ten years. Showed that the German people did not believe in the Nuremberg judgement. In fact it was not until the 1960's, when the German Domestic courts, started to prosecute the concentration camp commanders. That those surveys showed, that the German people a generation later, finally saw, that these people were guilty, and many people conclude. That the difference was that this was proven by the Germans' own courts. Now, the negative aspects of domestic trials are that there are greater chances of injustice. Local courts can be unable to successfully, or fairly, prosecute leaders from a former regime. And so for that reason often there's the suggestion that there be an international trial. Either an ad hoc tribunal or using the permanent international criminal court. The advantages of an international court is that you have experienced judges who are objective. You have prosecutors and defense council that are highly paid by the international community. That they have a lot of resources and they're very experienced. And there are high standards of due process. And these courts are well funded. The negative aspects are, they take very long to have these cases. They're extrememly expensive, sometimes as much as $100 million just for a single case. They're too far removed from the source of the attrocities, and often the individuals, as in Rwanda. The victims didn't feel a connection to the Rwanda Tribunal which was sitting in neighboring Tanzania. And therefore they're not as credible as home-grown justice. Now, the next question, even once we see these options and we figure out what the two sides may prefer. Is whether the international community can support this kind of deal. And often that question comes down to whether there is a legal. Duty to prosecute. These legal duties come from international criminal treaties. And we're going to be talking about some of them. The most important probably is the Geneva Conventions. This is the treaty that codifies the laws of war. They were negotiated in 1949 after the- Second World War. And they have a clause called the Grave Breaches clause, which requires prosecution of those who commit the worst kinds of atrocities. The clause says that. Those who are guilty of willful killing, torture or inhumane treatment, including biological experiments. Willfully causing great suffering or serious injury to body or health and extensive destruction. And appropriation of property that's not justified by military necessity, that's carried out wantinly and unlawfully, have to be prosecuted. Now there's a clause here I want to focus on and that is not justified by military necessity. Every time a civilian is killed during a war, it is not a grave breach. For example, the laws of war say that you can have civilian casualties, and it's not a grave breach or a war crime. As long as the two requirements of distinction in targeting and proportionality, are met. Proportionality means that if the civilians die, they're just lawful collateral damage. It's not a war crime so long as their deaths are not disproportionate to the military objective. Now, another thing related to this is that there are certain targets that are out of bounds. That you're not allowed to attack during a war. For example, you're not allowed to attack hospitals, religious or cultural structures, if you attack those it can be a grave breach of the Geneva Conventions. Here we have a cartoon of a protected site. But there is an exception represented by this cartoon. When the enemy uses the structure as a base of military operations, the target loses it's protected status and it can be attacked. Here's an example in the real world. This is a map of the Gaza area. An occupied territory outside of Isreal that was shooting many many missles into Isreal. So, this is a map of where schools are, where hospitals are, where military bases are and all the missile sites. And Israel used this kind of map to decide where to shoot back. This is a great illustration, because if the Israelis would shoot at places that were too close to schools or mosques. Or areas that were highly populated, that would violate the requirements of distinction and proportionality. So modern day targeting has to be very careful about those requirements, or it can be considered a war crime. Now the grave breaches provision had their limits. For example, they only apply in international armed conflict. They don't apply within a country's own borders during a civil war. In such a situation, there is a duty to prosecute only when there's an international armed conflict. For civil wars, you have universal jurisdiction, which we've spoken about before. Which means any country can prosecute a offender if they're on their territory, if the country wishes. But they're not obligated to do so, which opens the door in civil wars. For these amnesty for peace deals. Now let's look at another one of these international treaties that creates a duty to prosecute. And this is the U.N Genocide Convention. It was negotiated and concluded right after World War two trying to codify the law against the atrocities committed by the Nazis. But as I mess, mentioned in the last session. During the Cold War, when this was negotiatied, Joseph Stalin was commiting the same kinds of atrocities killing 20,000,000 Russians. And he was able to insert during the negotiations, a clause, into this treaty, that said it only applied to killing of national, ethnic, racial, or religious groups. He purposefully left out killing political opponents, because that's what he had been doing. So genocide, by definition, because of its negotiating status during the Cold War has left out the most frequent source of murders. During internal strife and that is killing mass numbers of opposition. So genocide you have to have the specific intent to destroy the group it has to be one of these types of groups. And you can do that through killing, but also through sterilization. Or other ways of basically destroying the group. Now, what is genocide? Let' s look at a couple of case studies that show you some of the difficulties in deciding its contours. before we do so I do want to mention that like Grave Breaches. The Genocide Convention requires people and governments to prosecute Genocide when the Genocide is in their own borders. But for other countries around the world, there's not a duty to prosecute those who commit Genocide. There's universal jurisdiction that permits them to do so. So that means that other than the country where the Genocide occurred. Other countries are free to enter into these, again, peace for justice swaps. Okay. So our first case study. Most everybody knows about the story of Khmer, the Khmer Rouge killing fields. Where in Cambodia from 1976 to 1979 about a half the population were murdered, by Pol Pot. It was made into a famous movie, The Killing Fields. And currently the regime leaders, who have survived are on trial in Cambodia for these crimes. But was it genocide? Most everybody thinks it is. But let's look at the facts and see if they're going to be difficulties in proving that. The facts are pretty interesting. I myself spent my sabbatical working at the Cambodia Tribunal pouring through the kind of evidence that I'm going to talk to you about. And working on the briefs in these cases. So this is the story basically Pol Pot takes over Cambodia. He had been studying in France, he had developed a neo-communist mindset. And his theory about how he was going to rule the new country was that he was going to make everybody leave the cities and work on rice production. And he would turn Cambodia into the rice producing capital of the world. Now the problem is, he didn't really understand rice farming. Because in Cambodia, each plot of land has a different pH level, a different water table. And it's best worked by families who really know how to deal with the particular plot. If you take tens of thousands or even million people, and try to do it on a mass basis it's not going to work. And that's what he found out, but he didn't understand why so he empties the people out of the cities, and he has everybody go into this mass agrarian society, thinking he's going to produce lots and lots of rice. And instead the opposite happened. The bottom falls out of rice production, there's massive starvation. The first level of killing were people who just merely starved to death. Many of them city workers who are now been forced to work in farms. The second level of killing is that, Pol Pot, says, something's wrong. And I think it's because the city workers are not cooperating. So, anybody who wore glasses, who was a professional a lawyer, a doctor, a teacher. Anybody he considered educated, he thought was an enemy and he had them killed. But, still, the rice production didn't bloom. And then he said it's my own[UNKNOWN] people who are actually spies of the CIA, and Vietnam. So he rounded up 17,000 of them. And he had them all tortured, and they all admitted yes, we're spies, even though they probably, none of them probably were, and he had them all executed. So, this was in fact, the killing in Cambodia. Did he do it, however, because he was targeting a national, a racial, a religious group. Now it's true among the groups he killled were all the Vietnamese living in Cambodia. So yes, that probably qualifies. He also targetted a couple of religous groups that were minorities, that probably qualifiies. He also targetted, the leaders of the Buddhist movement, the Monks. That's not so clear and qualified because just about everybody in Cambodia was Buddhist, including Pol Pot himself. And finally, he just targeted anybody he thought was an enemy of his regime. For the reason that his plan wasn't working, and that's not going to be genocide. Here's another example. In 1988, during the war between Iraq and Iran, Saddam Hussein decided to kill the Kurds that lived on the northern border near Iran. Now, he did this using chemical weapons. And this is called the famous Anfal Campaign. What we learned during the trial of Saddam Hussein and his cousin Chemical Ali, who was the General in charge of using the chemical weapons. Is that they targeted the Kurds, not because they hated Kurds but rather because they thought the Kurds were aligned with the Iranians during the war. And secondly, because the Kurds were living in oil-rich areas and they wanted the oil. And they gave the Kurds the option of leaving before they dropped the chemical weapons. So under those circumstances, is it genocide? Well the Saddam trial, and the trial of Chemical Ali, the judges said, yes it is genocide. And we know this because they killed the little babies, and the children, and the people who were old and frail. And were in no way capable of helping the Iranian cause or were in no way avoiding allowing the Iraqi government to develop the oil. So because they were overbroad, because they targeted the entire population of Kurds, they were convicted of genocide. Let's look at another one of these crimes. This one is crimes against humanity. It's defined in the international criminal court statute as targeting the civilian population in a widespread and systematic manner. And there are lots of different kinds of things that can apply. Now, notice this crime is much broader than genocide. You don't have to have the intent to kill a racial, national or religious group. All you have to do is bad things against the civilian population, and a very broad basis. The problem with crimes against humanity, however, is that there isn't a duty to prosecute, unless the individual has been indicted by the International Criminal Court. I want to talk about an interesting case that has arisen, that tests what is and what's not a crime against humanity. And that's the case of forced marriage. What's been happening in places like, Sierra Leone and Uganda, is that the rebel groups will round up and kidnap little girls and little boys. The children that are male they turn in to killing machines child soldiers. The women, they turn into bush wives. And the question came up at the special court for Sierra Leon about turning these people into bush wives. Should be considered a specific crime against humanity, under the clause that says other inhuman acts. Of a similar character that are intentionally causing great suffering or serious injury to bodily, healthy or to mental and physical health. The problem with this decision which created a furious descent is. That the tribunal statute already says that rape and sexual slavery and enforced prostitution and forced pregnancy are crimes against humanity. And so the question was, what does it add to create a new crime against humanity of forced marriage? Ultimately, the appeals chamber said it adds a lot, that forced marriage is not just a thing that is the addition of all these other things. But is itself such a terrible thing, because the woman will never be able to be married again, having been forced to marry. She is treated like a spouse. She is expected to raise the children as if it was a regular marriage. And it has an effect on her that is far beyond the other crimes themselves. Now as I was saying, there is no duty to prosecute, or extradite, the perpetrator of crimes against humanity. Unless they've been indicted by the International Criminal Court. We'll apply that in a few minutes to our simulation. Finally, I want to talk about the crime of torture. There is a convention against torture, that was put in force in 1994. And there you have a picture of the convention and one of the a examples of torture that we have been talking about, in this class water boarding. So torture is defined in that treaty as inducing severe pain or suffering. And it can be physical or mental. Under the torture convention, you can't claim any acceptional circumstances that allow for tortures. So, the idea that we have a ticking time bomb and we have to torture somebody in order to find out where the bomb is. Which we see in movies like or TV shows like 24. That is not allowed under the torture convention. And also, under article five, all the parties to the torture convention have a duty to extradite or prosecute any torturer that's found in their territory. Now, there's an important distinction in the treaty between torture and another crime that the treaty also covers. Called cruel and human degrading treatment. And that is that all countries have to prevent cruel and inhuman, and degrading treatment. But only if the crime arises to the highest level of torture, do these other clauses where there can't be any justification. No necessity defense. Every country has to prosecute. Only then do those apply. So this brings us to the question of what falls into torture and what is a cruel, and inhuman, and degrading treatment offense? This first picture is a picture of a woman in Iran who has been whipped for the crime of adultery. And I have to tell you that the Human Rights Commission has determined that that does fall into torture. Here's an example that the United States used against people during interrogations in Guantanamo Bay. They took a very scary, loud Insect. And they put them in these little boxes that are like coffins with the person that they are interogating. And they left them there while the person screams and screams because of their fear of insects. Torture, or cruel and inhuman degrading treatment? Here's another example that has been used by the British, by the Israelis, by the United States it's called stress positions. You put somebody in these positions that are very painful, but they don't cause lasting damage to the body, but they're horribly painful. Torture or cruel, inhuman and degrading treatment? Another example that happens in Abu Ghraib, in this picture. Is using barking dogs against stripped naked people as a way to soften them up and scare them. Torture, or cruel and inhumane and degrading treatment. And finally, here's our picture of water boarding. And in water boarding, the people don't die, there's no lasting harm, but they feel as if they are drowning. And from reports of people who go through this it's a horrible experience. Is one case of water boarding torture? Or cruel inhuman degrading treatment? Well the way to decide this things is not inherit in the type of activity but you have to look sort of on a graph, which I have created for you. Analyzing this. You have to look at the duration and the repetition of the particular offence. And you have to look at the intensity of pain and the frailty of the victim. So if we put our things on this list, perhaps, we'll put the insect, there and maybe the stress positions in the middle. And we have the barkings dogs toward the bottom and the water boarding, and the whipping toward the top. But it's a very nuiance decision that a judge or a prosecutor has to look at, balancing these factors. And, it's, it's much more complicated, clearly, than one might think. Now let's think about what happened in the United States with respect to Guantanamo Bay. Where people were water boarded, and these bugs were used, and the other things were used. To soften them up, to try to get them to tell where the whereabouts were of Osama Bin Laden. Or to tell them when the next bomb would go off or whoever else was associated with Al Qaeda. There was an investigation into all of this. And the investigation looked at not just at the perpetrators. But also the people who wrote the White House memos that said that it was legitimate to do these kinds of things. And ultimately at the end, the Attorney General, who you see pictured here. Said that the people who were engaged are not going to be prosecuted. The people who were engaged in the White House torture memos are not going to be prosecuted. Does that leave them off the hook? Well no because torture is a crime of universal jurisdiction. So Spain has said if Obama won't prosecute, they will and in fact there have been indictments through Spain and Germany of some of these individuals. Meaning that they are literally now prisoners in the United States and they can't travel around the world for fear of prosecution. All right. Let's apply all of this to our simulation. Because we can't just decide what the two parties want to do if they would violate an international treaty that requires prosecution. So, in our situation, were there grave breaches of the Geneva Convention? If there were we have to prosecute. Amnesty and truth commissions cannot do the trick. But remember, grave breaches of the Geneva Conventions require an international armed conflict, and in this case it was just a civil war. In fact. All of war crimes require that there be something more than sporadic acts of violence against rioters. And in this case, there really wasn't fighting going on on both sides. It wasn't even a civil war, okay the next one is the question of whether a genocide occured. yes 7,000 people were killed and in[UNKNOWN] which was the place in Bosnia where 7,000 the same number were killed. The Yugoslavia tribunal said that was enough for genocide but they have to be killed because of their ethnicity. Their religion, their nationality. Why were the people killed in our simulation? They were killed because they were political opponents, so that's not going to be genocide. The next one is torture. Well, there are two things that happen in this case. One is that the military regime rounded up the members of the old regime and water boarded them. Was that torture? I think that, depending on how long they were water boarded, how often they were water boarded. That seems to be, then after the water boarding, they were given extra-traditional executions, meaning they were killed without a trial. And that also comes in to the torture convention. But, the simulated facts say that Togoland had not ratified the torture convention. So the torture obligations cannot apply to them, even though the other country were these peace negotiations, Molotanya , is a party to the torture convention. Because the perpetrators were not from a country where the treaty had been ratified, the torture convention obligation cannot apply. And then finally, was it a crime against humanity? Well certainly, if you kill 7,000 people, that seems systematic, it seems widespread, they were civilians. It looks like it's a crime against humanity. Is there a duty to prosecute however? No, not unless the International Criminal Court would indict these people for committing crimes against humanity. And so finally, we have the question of: If there was an indictment by the International Criminal Court. Could there still be a peace deal where you trade justice for amnesty, and get the perpetrators to step down. And, this is a question, that has not yet been settled, but there are two causes of the Rome treaty, that created the International Criminal Court, that are relevant. The first is complimentarity, Article 17. It says that the Interantional Criminal Court will not prosecute if the person has been investigated or prosecuted at the local level. Is a Truth Commission a legitimate investitgation? Is it kind of like a plea bargain, if it is linked to paying compensation, to lustration saying that they cannot hold office if there is a stigma. If they're having to do probationtary things? Maybe the argument can be made that complimentarity would require the International Criminal Court to defer. The other option is under Article 16. It says that the Security Council can decide to tell the International Criminal Court to hold off. On a prosecution in the interests of peace and justice. But here, the security council has to make that desicion. And what it says is the international court, the prosecutor and the judges shouldn't be thinking about politics, they should be thinking about justice. And it's for the security council the political branch of the United Nations that has that power. Finally, let's wrap all of this up, and let's look at a bunch of situations around the world. And decide whether there was a duty to prosecute, or whether a peace for justice swap would have been legit, legitimate. Okay, first of all, let's start with Haiti in 1994. That's the case where a military regime took power. And the Haitian president fled to New York City and the United Nations tried to negotiate a deal. Now, the first question is, was there grave breach to the Geneva conventions? Not in Haiti, it was all in internal armed conflict. And for grave breaches, remember, it has to international. Were there other war crimes in Haiti? Probably not. It was a very one sided conflict. You had General Cedras and his subordinates committing atrocities against political opponents. But there wasn't really whole scale fighting going on. Was it genocide? No. General Cedras was not killing people because of their ethnicity, their nationality, or their race. He was killing them because they were political opponents. Was it a crime against humanity? It absolutely was. Probably 3,000 people died over a period of months. It was systematic, it was widespread. Was it torture? Well Haiti was not a party to the Torture Convention, so that didn't apply. So looking at this, could they make a deal with the leaders, the military leaders? Absolutely. The only crime that was implicated was crimes against humanity. There was not an indictment by the International Criminal Court, it didn't even exist at the time. And so as a result, the deal was made, the Haitian military leaders went into exile and justice was swapped for peace. Let's look at South Africa and the Apartheid regime. were there grave breaches? Well, Apartheid killed a lot of people, but there was not an armed conflict, and if there was in some cases, it wasn't international. So, no duty to prosecute under the Geneva Conventions. Other war crimes only if the fighting was sustained at a high enough level. Not if it's one-sided atrocities by the government against opponents. Was it genocide? Again, these people were being subjugated. They were being abused, but they weren't being killed in mass numbers because even of their race. Was it a crime against humanity? Absolutely. The United Nations has said that apartheid was a crime against humanity. Was it torture? It was, but again. South Africa wasn't a party. Where does that leave us? The same place as Haiti. And that's what happened. In South Africa there was a deal where there was a truth commisison, there was amnesty. There were not prosecutions of many of the leaders of the apartheid regime. And the international community not only endorsed it, but helped negotiate it. How about the case of Cambodia, the killing fields? We've talked about that, so this is review. Grave breaches? No, it wasn't an international armed conflict. Other war crimes? Yes, in some cases there was fighting that was going on when Pol Pot was taking over the country. Was it genocide? We're not sure. It depends on whether the cases against the killing of all the people who were relocated from the cities. Or was it a case just against some of the victims? Or dealing with some of the victims like the Vietnamese. And some of the smaller religious groups. Was it a crime against humanity? Absolutely. And was it torture, again? Cambodia wasn't a party to the torture convention. So, where does this leave us? Could there have been a peace for justice swap in Cambodia? There could have been. It came close to that. But the international community decided, nonetheless, to create a Cambodia tribunal for prosecution. Didn't do so right away. That's another issue. It waited 30 years and sometimes international justice has to be patient. Sometimes you swap justice for peace, only temporarily, and ultimately justice catches up. Let's look at the situation of Bosnia, 1995, the Srebrenica massacre. Was it a grave breach of the Geneva Conventions? Absolutely. You had troops that were supported and controlled by Serbia who were committing atrocities in Bosnia. And that's what the international tribunal decided. There is a duty to prosecute in such a case. Other war crimes committed as well. Genocide, the tribunal said, absolutely. 7,000 people who were Bosnians were killed by the Serbs because of their ethnicity. And they were wiped out. Also a crime against humanity. And torture as well. And interestingly, Bosnia had ratified the torture convention in 1993, two years before Chevronista. So for all these reasons there could not have been a justice for peace swap. And that's why you saw the people ultimately facing justice, both before the International Criminal Tribunal for the former Yugoslovia. But also in courts in Bosnia, in Serbia and Croatia. Iraq 1988, we talked about this is reviewed. Grave breaches? No, not against the Kurds who were people that were also part of the domestic population. Was it linked to an international armed conflict? If it was, then it could have been a grave breach. Other war crimes the situation of attacking the, the Kurds seemed to be very one sided. There wasn't actually a conflict between the Kurds and the government it was just the government dropping bombs. And it requires more than that to be the other war crimes in some people's view. Now again if this is linked to the broader war with Iran and that would have been something that would've had to be tried. You could have prosecuted those. Genocide, that's what the court decided. Crime against humanity, absolutely. Torture, again Iraq was not a party to the Torture Convention. I think you're seeing a pattern here. The Torture Convention is very strong but not a lot of countries where torture occurs have had the, the temerity to ratify the convention. Knowing full well that someday, their leaders could be prosecuted under it. Syria in 2013. Now, this is being taped a little bit before this'll be aired, so I'm not exactly sure what will unfold in the next couple of weeks in Syria. But is it grave breaches at this point? No, it's an internal armed conflict, and grave breaches only apply in an international armed conflict. Are there other war crimes? Yes, the international committee of the Red Cross says that the fighting on both sides is high enough. That it, it counts as a civil war, and therefore the war crimes that are occurring are crimes that trigger universal jurisdiction. But not the duty to prosecute. Genocide, well, at this point, it doesn't look like there is, I'm not sure who the victim group would be. Because it's basically the government, which is made up of several groups Killing the opposition which is made up of several groups. And doesn't seem be because of their ethnicity, race or religion or nationality. Crimes against humanity absolutely, 60000 people have been killed to date its widespread, its systematic and its a torture once again. Syria is not party to the torture convention. Now in Syria, there have been, the suggestion raised. That the whole thing could be solved if President Assad would merely step down from power and go to Russia. What does this tell us? If he does so can the international community say that doesn't violate international law? That tells us that is, in fact, the case. This is a situation where they could swap justice for peace. Now does it make sense to do so? That's a question that often is at the subject of great international negotiations. Just because it's legal to swap justice for peace doesn't mean it's a good idea to do so. And what happens, as we said earlier in the class. Is that when you make these kinds of swaps, you may be sowing the seeds for future conflict. You may be sowing the seeds for vigilante justice. You may be sowing the seeds for disrespect for the law. And so this is a question that is really up-front in the international community, every couple of years, including right now in a situation of Syria. Now let me end with a preview of next class. [MUSIC]. So far, we've been going over today. The international crimes of grave breaches of the Geneva conventions. Crimes against humanity genocide and torture. And we've talked about the contours and the definitions of those crimes and also whether the duty to prosecute applies or does not. Next class we're going to look at two more really important international crimes. We're going to look at the crime of terrorism. And the difficulty of defining that crime. And then we're going to be looking at modern day piracy. A crime most people thought had been snuffed out 200 years ago that has come back with a vengeance. So, until next class, please do the readings and I look forward to seeing you. [MUSIC]
