The United States welcomes the issuance of the judgment by the Special Court for Sierra Leone, convicting Charles Taylor, the former president of Liberia, of war crimes and crimes against humanity. Today’s judgment was an important step toward delivering justice and accountability for victims, restoring peace and stability in the country and the region, and completing the Special Court for Sierra Leone’s mandate to prosecute those persons who bear the greatest responsibility for the atrocities committed in Sierra Leone. The Taylor prosecution at the Special Court delivers a strong message to all perpetrators of atrocities, including those in the highest positions of power, that they will be held accountable.
The trial of Charles Taylor is of enormous historical and legal significance as it is the first of a powerful head of state to be brought to judgment before an international tribunal on charges of mass atrocities and serious violations of international humanitarian law. Over 90 witnesses testified during the trial, bringing to light the range of crimes committed during the war in Sierra Leone, and affirming the importance of justice for the victims. The United States has been a strong supporter and the leading donor of the Special Court for Sierra Leone since its inception. The successful completion of the Special Court’s work remains a top U.S. Government priority.
As Prepared For Delivery
This is my third visit this year to Bangladesh to learn about your International Crimes Tribunal and to offer ideas to ensure that the trials it holds will be fair and open.
I know of the horrible crimes committed in the country in 1971– of the hundreds of thousands of victims who were murdered and raped, of the pain inflicted and the property destroyed. The victims of these crimes deserve justice, and those accused of these acts deserve trials where they can test the evidence and present witnesses on their own behalf. Those who are innocent should be found not guilty and be freed. Those who are responsible for these crimes should be found guilty and punished. Given the historic importance of these trials to Bangladesh, the region, and the world, the proceedings should be conducted in a manner that is open and accessible to all.
In March, I made a number of suggestions on how the rules for these trials could be amended to ensure fair and transparent proceedings. Some of these suggestions were incorporated in amendments adopted in June. I regret to say that many were not.
Now the first trial has begun with the opening statements of the prosecution last week, and with witnesses due to begin testifying on December 7.
The focus of my present visit is on how the International Crimes Tribunal will conduct these trials. The statute and the rules are in place; the question now is how they will be interpreted in actual practice. Much can still be accomplished to ensure that justice is done and is seen to be done in these historic proceedings.
First, it is important that the judges, at the first opportunity, define what “crimes against humanity” means. The term “crimes against humanity” has been defined in the statutes and cases of international courts. It has not been defined in Bangladesh. In their charge framing order in the first case, the judges said that they would interpret the statute according to Bangladesh law but look for additional guidance in the decisions of international tribunals. But it is not clear whether the prosecution must prove whether the alleged murders and rapes were committed as part of a widespread and systematic attack against a civilian population; whether they were committed on a racial, religious, or political basis; whether the alleged perpetrators would need to have knowledge of the larger attack. At other courts, the elements of the crimes have been defined by the judges in an early ruling. The same can be done here.
Second, it is important that the same rights be accorded to these accused as are guaranteed to Bangladeshi citizens who are charged with other violent crimes. The Bangladesh constitution and laws provided that this was to be a special court responsible for its own rules and procedures. As the judges have amended the rules to incorporate concepts like the presumption of innocence and proof beyond a reasonable doubt, it is also important that they conduct these trials to ensure that the accused have the same right to consult with their counsel, the same time and ability to prepare their defense, and the same time and ability to challenge the process as they would have in other cases.
Third, while the rules amendments provided for the protection of witnesses, it is important that a system of protection of witnesses be developed in practice and available to both sides. In the first trial, witnesses for the prosecution have already been listed. The defense must file a list of witnesses by December 7. Witness protection measures must be in effect to ensure that those willing to come forth and tell the truth will not be subject to threats and intimidation.
Finally, and most importantly, the process must be accessible to all. It is not easy for members of the public to attend court sessions. Ideally, the trial sessions should be broadcast on television or radio, or weekly reports be aired that would show key testimony, arguments, and rulings. This is being done now in the trials in Cambodia of those alleged to be responsible for the atrocities committed in that country in the 1970s. If this is not possible in Bangladesh, neutral observers should be permitted to follow the trials and produce daily and weekly reports that would be available through the internet and other media.
These trials are of great importance to the victims of these horrible crimes. What happens here will send a message to others who would commit these crimes anywhere in the world that it is possible for a national system to bring those responsible to justice.
I am here because the people of the United States wish to help ensure that this is a process that is fair and transparent. We will continue to work with all those involved in this process to achieve justice in these historic trials.
Today, President Obama directed a thorough review to strengthen our national capacity to prevent mass atrocities. Crucially, the President will establish a new Atrocities Prevention Board with the authority and the policy tools to respond quickly to early warning signs and make recommendations before options narrow and the costs of both action and inaction rise precipitously. The President also expanded grounds to deny visas to serious human rights violators and war criminals and to isolate those who engage in or conspire to commit atrocities.
The United States is deeply committed to ensuring that no individual, now or in the future, sees a path to power in division and death. Moreover, in the enduring fight against mass atrocities, the United States will continue to enlist the contributions of all nations who know that in war, there must be rules; that, in the pursuit of power, there must be limits; that, even in a violent world, there must be rights; and that, when the embers of conflict threaten to ignite, we must be ready.
THE VICE PRESIDENT
THE SECRETARY OF STATE
THE SECRETARY OF THE TREASURY
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
THE SECRETARY OF HOMELAND SECURITY
ASSISTANT TO THE PRESIDENT AND CHIEF OF STAFF
DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET
UNITED STATES TRADE REPRESENTATIVE
REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE UNITED NATIONS
ASSISTANT TO THE PRESIDENT AND NATIONAL SECURITY ADVISOR
DIRECTOR OF NATIONAL INTELLIGENCE
COUNSEL TO THE PRESIDENT
ASSISTANT TO THE PRESIDENT FOR LEGISLATIVE AFFAIRS
DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY
ADMINISTRATOR OF THE UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
CHIEF EXECUTIVE OFFICER, MILLENNIUM CHALLENGE CORPORATION
DIRECTOR OF THE PEACE CORPS
DEPUTY ASSISTANT TO THE PRESIDENT AND NATIONAL SECURITY ADVISOR TO THE VICE PRESIDENT
DIRECTOR OF THE NATIONAL SECURITY AGENCY
DIRECTOR OF THE DEFENSE INTELLIGENCE AGENCY
SUBJECT: Creation of an Interagency Atrocities Prevention Board and Corresponding Interagency Review
Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.
Our security is affected when masses of civilians are slaughtered, refugees flow across borders, and murderers wreak havoc on regional stability and livelihoods. America’s reputation suffers, and our ability to bring about change is constrained, when we are perceived as idle in the face of mass atrocities and genocide. Unfortunately, history has taught us that our pursuit of a world where states do not systematically slaughter civilians will not come to fruition without concerted and coordinated effort.
Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed. By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.
In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing. The actions that can be taken are many they range from economic to diplomatic interventions, and from non combat military actions to outright intervention. But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.
Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide. This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.
Accordingly, I hereby direct the establishment of an interagency Atrocities Prevention Board within 120 days from the date of this Presidential Study Directive. The primary purpose of the Atrocities Prevention Board shall be to coordinate a whole of government approach to preventing mass atrocities and genocide. By institutionalizing the coordination of atrocity prevention, we can ensure: (1) that our national security apparatus recognizes and is responsive to early indicators of potential atrocities; (2) that departments and agencies develop and implement comprehensive atrocity prevention and response strategies in a manner that allows “red flags” and dissent to be raised to decision makers; (3) that we increase the capacity and develop doctrine for our foreign service, armed services, development professionals, and other actors to engage in the full spectrum of smart prevention activities; and (4) that we are optimally positioned to work with our allies in order to ensure that the burdens of atrocity prevention and response are appropriately shared.
To this end, I direct the National Security Advisor to lead a focused interagency study to develop and recommend the membership, mandate, structure, operational protocols, authorities, and support necessary for the Atrocities Prevention Board to coordinate and develop atrocity prevention and response policy. Specifically, the interagency review shall identify:
operational protocols necessary for the Atrocities Prevention Board to coordinate and institutionalize the Federal Government’s efforts to prevent and respond to potential atrocities and genocide, including but not limited to: identifying (standing and ex officio) members of the Atrocities Prevention Board; defining the scope of the Atrocity Prevention Board’s mandate and the means by which it will ensure that the full range of options and debate is presented to senior-level decision makers; identifying triggers for the development of atrocity prevention strategies; identifying any specific authority the Atrocities Prevention Board or its members should have with respect to alerting the President to a potential genocide or atrocity;
how the Intelligence Community and other relevant Government agencies can best support the Atrocities Prevention Board’s mission, including but not limited to: examining the multiplicity of existing early warning assessments in order to recommend how these efforts can be better coordinated and/or consolidated, support the work of the Atrocities Prevention Board, and drive the development of atrocity prevention strategies and policies; examining options for improving intelligence and open source assessments of the potential for genocide and mass atrocities; and examining protocols for safely declassifying and/or sharing intelligence when needed to galvanize regional actors, allies, or relevant institutions to respond to an atrocity or genocide; and
steps toward creating a comprehensive policy framework for preventing mass atrocities, including but not limited to: conducting an inventory of existing tools and authorities across the Government that can be drawn upon to prevent atrocities; identifying new tools or capabilities that may be required; identifying how we can better support and train our foreign and armed services, development professionals, and build the capacity of key regional allies and partners, in order to be better prepared to prevent and respond to mass atrocities or genocide.
In answering these questions, the interagency review shall consider the recommendations of relevant bipartisan and expert studies, including the recommendations of the bipartisan Genocide Prevention Task Force, co-chaired by former Secretaries Madeleine K. Albright and William Cohen.
I direct the National Security Advisor, through the National Security Staff’s Director for War Crimes and Atrocities, to oversee and direct the interagency review, which shall include representatives from the following:
Office of the Vice President
Department of State
Department of the Treasury
Department of Defense
Department of Justice
Department of Homeland Security
United States Mission to the United Nations
Office of the Director of National Intelligence
Central Intelligence Agency
United States Agency for International Development
Joint Chiefs of Staff
National Security Agency
Defense Intelligence Agency
Executive departments and agencies shall be responsive to all requests from the National Security Advisor-led interagency review committee for information, analysis, and assistance.
The interagency review shall be completed within 100 days, so that the Atrocities Prevention Board can commence its work within 120 days from the date of this Presidential Study Directive.
Presidential Proclamation–Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Participate in Serious Human Rights and Humanitarian Law Violations and Other Abuses
The United States enduring commitment to respect for human rights and humanitarian law requires that its Government be able to ensure that the United States does not become a safe haven for serious violators of human rights and humanitarian law and those who engage in other related abuses. Universal respect for human rights and humanitarian law and the prevention of atrocities internationally promotes U.S. values and fundamental U.S. interests in helping secure peace, deter aggression, promote the rule of law, combat crime and corruption, strengthen democracies, and prevent humanitarian crises around the globe. I therefore have determined that it is in the interests of the United States to take action to restrict the international travel and to suspend the entry into the United States, as immigrants or nonimmigrants, of certain persons who have engaged in the acts outlined in section 1 of this proclamation.
NOW, THEREFORE, I, BARACK OBAMA, by the authority vested in me as President by the Constitution and the laws of the United States of America, including section 212(f) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1182(f)), and section 301 of title 3, United States Code, hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of persons described in section 1 of this proclamation would be detrimental to the interests of the United States. I therefore hereby proclaim that:
Section 1. The entry into the United States, as immigrants or nonimmigrants, of the following persons is hereby suspended:
(a) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, widespread or systematic violence against any civilian population based in whole or in part on race; color; descent; sex; disability; membership in an indigenous group; language; religion; political opinion; national origin; ethnicity; membership in a particular social group; birth; or sexual orientation or gender identity, or who attempted or conspired to do so.
(b) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights, or who attempted or conspired to do so.
Sec. 2. Section 1 of this proclamation shall not apply with respect to any person otherwise covered by section 1 where the entry of such person would not harm the foreign relations interests of the United States.
Sec. 3. The Secretary of State, or the Secretary’s designee, in his or her sole discretion, shall identify persons covered by section 1 of this proclamation, pursuant to such standards and procedures as the Secretary may establish.
Sec. 4. The Secretary of State shall have responsibility for implementing this proclamation pursuant to such procedures as the Secretary, in consultation with the Secretary of Homeland Security, may establish.
Sec. 5. For any person whose entry is otherwise suspended under this proclamation entry will be denied, unless the Secretary of State determines that the particular entry of such person would be in the interests of the United States. In exercising such authority, the Secretary of State shall consult the Secretary of Homeland Security on matters related to admissibility or inadmissibility within the authority of the Secretary of Homeland Security.
Sec. 6. Nothing in this proclamation shall be construed to derogate from United States Government obligations under applicable international agreements, or to suspend entry based solely on an alien’s ideology, opinions, or beliefs, or based solely on expression that would be considered protected under U.S. interpretations of international agreements to which the United States is a party. Nothing in this proclamation shall be construed to limit the authority of the United States to admit or to suspend entry of particular individuals into the United States under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) or under any other provision of U.S. law.
Sec. 7. This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 8. This proclamation is effective immediately and shall remain in effect until such time as the Secretary of State determines that it is no longer necessary and should be terminated, either in whole or in part. Any such termination shall become effective upon publication in the Federal Register.
IN WITNESS WHEREOF, I have hereunto set my hand this fourth day of August, in the year of our Lord two thousand eleven, and of the Independence of the United States of America the two hundred and thirty-sixth.
FACT SHEET: President Obama Directs New Steps to Prevent Mass Atrocities and Impose Consequences on Serious Human Rights Violators
“The United States is committed to working with our allies, and to strengthening our own internal capabilities, in order to ensure that the United States and the international community are proactively engaged in a strategic effort to prevent mass atrocities and genocide. In the event that prevention fails, the United States will work both multilaterally and bilaterally to mobilize diplomatic, humanitarian, financial, and—in certain instances—military means to prevent and respond to genocide and mass atrocities.”
–National Security Strategy of the United States, May 2010
President Obama is committed to strengthening the United States Government’s ability to prevent mass atrocities and serious human rights violations. In 2010, he created the first-ever White House position dedicated to preventing and responding to mass atrocities and war crimes. And in Kyrgyzstan, Cote d’Ivoire, Libya, Sudan, and elsewhere, this Administration has prioritized the protection of civilians and the prevention of mass atrocity and serious human rights violations, and employed a wide range of economic, diplomatic, and other tools in service of those ends.
Today, President Obama is directing a comprehensive review to strengthen the United States’ ability to prevent mass atrocities. The President’s directive creates an important new tool in this effort, establishing a standing interagency Atrocities Prevention Board with the authority to develop prevention strategies and to ensure that concerns are elevated for senior decision-making so that we are better able to work with our allies and partners to be responsive to early warning signs and prevent potential atrocities. Today he is also issuing a proclamation that, for the first time, explicitly bars entry into the United States of persons who organize or participate in war crimes, crimes against humanity, and serious violations of human rights.
The Presidential Directive on Mass Atrocities, Presidential Study Directive-10 (PSD-10), is innovative and significant in several respects:
Presidential Prioritization. In PSD-10, President Obama finds that: “Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States of America.” He directs agencies to participate in a comprehensive assessment, led by the National Security Advisor, of how best to accomplish this national security imperative.
Organization Matters. The President notes that, “66 years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide.” The President orders the creation of an interagency Atrocity Prevention Board within 120 days from today so as to coordinate a whole-of-government approach to engaging “early, proactively, and decisively.”
Full Toolbox. The President rejects the idea that, in the face of mass atrocity, our options are “limited to either sending in the military or standing by and doing nothing.” He instructs his Administration to undertake a 100-day review – to take an “inventory” of the full range of economic, diplomatic, and other tools available to U.S. policymakers; to develop the appropriate governmental organization to try to ensure early and less costly preventive action; to improve the collection and processing of indicators of mass atrocity; to provide a channel for dissent to be raised during a crisis; and to appropriately train and prepare our diplomats, armed services, development professionals, and others.
A Global Responsibility. The directive recognizes that preventing mass atrocities is a responsibility that all nations share. Often other countries are better positioned than the United States to respond to particular crises or potential atrocities. Recognizing that the burden for preventing mass atrocities must be appropriately shared by other countries, the directive calls for a strategy for engaging key regional allies and partners so that they are prepared to accept greater responsibility for preventing and responding to crimes against humanity.
The President’s proclamation makes two key contributions:
Closing gaps. The United States has long sought to ensure that our country does not become a safe haven for human rights violators or those responsible for other atrocities. Existing U.S. law renders certain human rights violators inadmissible to the United States – such as participants in genocide, torture, extra-judicial killings, or certain violations of religious freedom. However, before today, the United States did not have an explicit bar to admission on the basis of participation in serious violations of human rights or humanitarian law or other atrocities that do not otherwise fit into those categories specifically enumerated in the Immigration and Nationality Act. This proclamation fills this gap by expanding the grounds for denial of entry into the United States to cover a broader array of recognized violations of international humanitarian law and international criminal law, such as war crimes and crimes against humanity. The proclamation will also cover participants in serious human rights violations, such as prolonged arbitrary detention, forced disappearances, slavery, and forced labor, as well as participants in widespread or systematic violence against civilians based on ethnicity or other grounds.
New deterrent. By enumerating these grounds for denying admission to the United States, policymakers will have a new tool to deter would-be organizers of atrocities, serious human rights violations, and related abuses. The President’s proclamation empowers the United States to warn groups that have carried out, or may be about to carry out, serious human rights violations or grave atrocities that their conduct falls within explicit standing bans on admission to the United States. As such, we will be able to more effectively shame those who are organizing such conduct. The proclamation also bans admission to the United States for those who are complicit in organizing these abuses – not just those who carry them out. As such, it allows the United States to act before planned abuses and atrocities metastasize into actual ones.
The proclamation is being issued pursuant to the President’s authority under Section 212(f) of the Immigration and Nationality Act, which authorizes the President to suspend entry into the United States of aliens whose entry “would be detrimental to the interests of the United States.” There are currently seventeen 212(f) proclamations in effect, including Proclamation 8342 (2009), which suspends entry to foreign government officials responsible for failing to combat human trafficking, and Proclamation 7750 (2004), which suspends entry of persons engaged in or benefiting from corruption.
The United States welcomes the arrest of Goran Hadzic by Serbian authorities. We commend President Tadic, the Serbian security services, and all others who worked to finally bring Hadzic to justice. We look forward to his earliest possible transfer to the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague so that justice may be served.
This arrest closes a horrific chapter in the region’s history and it helps demonstrate Serbia’s commitment to reconciliation and to the rule of law – critical elements for progress toward accession to the European Union.
A powerful message has been sent to those around the world who would break the law and target civilians: you will not escape judgment. None of the 161 individuals indicted by the ICTY for serious violations of international humanitarian law have been able to evade the Tribunal’s judicial process. This arrest serves as the latest proof that international justice works.
We send our deepest sympathies and extend our thoughts and prayers to all those who have suffered from the atrocities charged to Hadzic. We hope that this arrest will be an impetus for lasting peace and reconciliation, resulting in a stable and prosperous future for the entire region.
QUESTION: Would it not have been better to try Saddam Hussein and Osama bin Laden at the International Criminal Court?
AMBASSADOR RAPP: It would not have been possible to try either Saddam or Osama in the ICC for the major crimes for which they were alleged to be responsible, because these occurred before July 2002 when the ICC came into being. The Court cannot try any crimes committed before that date, even on referral from the UN Security Council.
Regarding Saddam, he was tried by an Iraqi court, but his trial was based on special legislation adopted by Iraq that reflected international law. It was decided by the Iraqi people—they did not want an international court, they decided they would do it themselves and seek international assistance. A process went forward, not just as to Saddam but also on other leaders of his regime. Dozens of people have been tried by the Iraqi High Tribunal for crimes including the genocide committed against the Kurdish people in the Anfal campaign during the Iran-Iraq war.
The United States and other allies, including the British, provided help in the process. If you look at the statute you will see that is very much like the statute of the International Criminal Court. The Iraqi judges have received advice from renowned international judges and attorneys with experience in international cases have served as advisors to the tribunal. But the Iraqi process has been criticized because of the death penalty and the way in which Saddam and a few others were executed.
I will note that I have been to Baghdad and met the judges, and am very familiar with their work. The world followed the Saddam trial, but afterwards the judges have tried dozens of other defendants for massive crimes, such as the genocide of the Kurds, and the destruction of the Marsh Arabs—one of the worst crimes ever because it involved the destruction of a people, an environment, and a whole way of life. These crimes were perpetrated by Saddam and others. It was part of the conduct of a regime that operated by suppression and violence.
I would also note that the judgments published by the Iraqi tribunal have been lengthy and have cited legal decisions from international courts in The Hague and Arusha. While there have been five or six executions, dozens of other persons have been convicted and received varying prison terms, and some have been acquitted. We have to remember that this is a national system. It is theirs. It is their national norms. It may not be to everybody’s liking, but that is the world we live in. We try to work at the national level first and foremost, and we cannot always expect it to be perfect. We want to have something that as good as we can.
On the Osama question, I do think that it is important to note that while it happened before the ICC statute took effect, the crime of Osama bin Laden on September 11, 2001, was a crime against humanity. Of course, it was also an act of terrorism, which is a crime under international humanitarian law based on the Additional Protocols to the Geneva Convention. We obtained convictions for the international crime of terrorism at the Special Court for Sierra Leone against defendants who terrorized villages by chopping off hands and raping women. It was terrorism because they committed these acts to intimidate and gain political advantage. However, the authors of the ICC statute decided not include terrorism as a crime in the statute, because it was a controversial issue. But the acts of 9/11 were crimes against humanity, because they were “widespread or systematic” in having targeted four buildings full of civilians, and were done as part of an organization’s plan or policy. Osama could have been charged with this crime had the ICC statute been in effect at the time.
But regarding what happened to Osama earlier month, it is our position that the United States was in an armed conflict with the Al Qaeda from September 11, 2001, to the present. It is an armed conflict like the one we had with the Japanese government in World War II, where we were justified in attacking the commanders of those who were attacking us. It is not an action against civilians; it is not a police operation. We do not have to knock, and we do not have to be shot first before we can shoot back. We can target the commanders. If the targeted person voluntarily surrenders, throws up a white flag, throws up his hands, then we can take him prisoner and prosecute him for war crimes in our courts. We would have done the same thing with him in terms of having a trial.
But obviously that did not happen. In the future, however, it is important to recognize that there is an overlap between acts of terror and other atrocities. On 9/11, innocent civilians from scores of countries, including more than a dozen Filipinos, were murdered because of somebody’s political agenda. These were atrocities and should be recognized as such. There needs to be an ability to prosecute these cases. This will often be at the national level, but it should also be possible to deal with them within international institutions when circumstances arise.
QUESTION: I am Nisha from Bangladesh. First of all I want to thank you for your assistance with our International Crimes Tribunal and for helping us in solving many of the issues in this process. I have a question. You have many conflicts between the states in the southern part of the country, especially with the indigenous people. So many people are killed. The people there do not want to have this dam because it makes for a loss of product. The war is going on. Can the ICC point a way, or take action to stop this?
AMBASSADOR RAPP: The question is a very interesting one. Bangladesh joined the ICC last year when it ratified the Statute of Rome. A case from Bangladesh can come to the ICC by referral from Government of Bangladesh, which might or might not happen, or by the ICC Prosecutor going on his own to the ICC Pre-Trial Chamber for authority to open a case.
Before opening a case, the ICC Prosecutor and judges would look to the processes going on for justice in Bangladesh. Bangladesh could also apply to stop the ICC investigation and prosecution by showing that there were genuine steps being taken at the national level for accountability.
Secondly, the ICC judges would only approve the opening of a case if they found that there were crimes under the statute. There can be international war crimes committed in a non-international armed conflict, but you have to have a situation where an armed group controls territory. It has to be civil war like we see in Libya today, Even if there is fighting and killing and bad things are happening, it may not be a war and the bad things would not be war crimes. But they could be crimes against humanity if there was a widespread or systematic attack against the civilian population based upon an organized plan, a government plan, a militia’s plan or any other plan, and individual crimes such as murder, rape, and mutilation were committed as part of the attack.
However, even if there are crimes against humanity under the statute, the judges will still have to determine if they are sufficiently grave to get to the ICC, which only handles very serious cases of international significance. If you look at the Kenya situation, you will see that the ICC Prosecutor got authority to open a crimes against humanity case, but only on a two-to-one vote of the judges. Now, in that case, there were 1,133 civilians murdered, some burned alive in churches, and events that went on over the course of two months. There were 300,000 people dislocated and thousands of properties destroyed. But nonetheless, it had to be found to be grave and it had to be organized violence, not riots or chaos, and one judge did not think the prosecutor had shown that it had crossed the line.
So, before the ICC can do anything, it has to be a fairly serious type of situation. Of course, now that Bangladesh is in the court, there is a possibility that the prosecutor could begin to look at this and could open up a preliminary examination. He could then watch the situation and determine whether had it reached the threshold and then move forward. Of course, the approach of the prosecutor and the ICC would always be to see whether the authorities in the country were doing anything themselves. The advantage of this is that may encourage action at the national level, where it may be more appropriate and effective in this kind of situation.
QUESTION: In the Philippines there is a new law, which was passed in 2009, which penalizes war crimes and crimes against humanity, so perpetrators could be persecuted and punished. The law uses some [standard] definition[s] of the ICC statute, so even before [its] the ratification in the Philippines, it would lead up to the eventual ratification of the statute. But there are no prosecutions as yet. What do you think of this law?
AMBASSADOR RAPP: Thank you very much for your question. I saw Senator Legarda today, the Chair of the Foreign Relations Committee in the Philippine Senate that will be considering the ICC statute, as a treaty for ratification. I indicated to her how pleased I was to see this legislation in effect even before the consideration of the treaty. There are 114 countries now in the ICC and I think that only about half of those have passed national legislation. I know that in Africa only five of the 31 countries in the ICC have enacted such a law.
It is extremely important for this law to be a workable, and for it to be possible to have national investigations and trials that are fair and expeditious. It is through laws like this, and their enforcement, that we can have justice for these crimes near to the victims and affected communities, with the ICC standing back and only becoming involved when there is no possibility of justice at the national level.
QUESTION: The CICC network in the Asian Region, especially those coming from ASEAN, agreed in a meeting here in Manila last month to act in solidarity with the people of Burma by supporting the call for a Commission on Inquiry. In general, I want to get your thoughts on how to get more countries to support the COI. In particular, how can the ASEAN people push this call in the face of the non-interference policy of ASEAN still being very much in place?
AMBASSADOR RAPP: It is now universally accepted that seeking compliance with international humanitarian law is not an interference with a country’s internal affairs. A government cannot commit crimes against humanity or war crimes against its own people, even if no one ever crosses a border. Of course, we know in the case of Burma these acts have driven a million people into exile. It is clear that the provisions of the Rome Statute that define these crimes are universally recognized as customary international law, or the UN Security Council could not have acted unanimously, as it did in March, to open the door for Libyans to be prosecuted in the ICC for these crimes, when Libya has not ratified the ICC Statute.
Additionally, all of the nations of the world, acting in the UN General Assembly in 2005, accepted the “responsibility to protect” the people of every country from genocide, crimes against humanity, war crimes, and ethnic cleansing. But this responsibility rests first with the government of the country where the people are being harmed, and if protection is not provided, then the policy encourages regional and international actors to help make it happen. The Burmese groups are asking for help because they cannot do it alone. They are not asking for international courts or intervention; they are asking for our assistance in finding the truth so that they can push for their own approach to accountability.
As I said earlier, when citizens of Guinea or Cote d’Ivoire were not protected, it was ECOWAS and the African Union that took the lead. In the case of Libya, it was the Arab League that took the lead. These were situations with far fewer victims than there have been in Burma. It is appropriate that Asean countries take the lead, and for the people of these countries, acting within their own democratic processes, to encourage it.
QUESTION (From the response of Ms. Rosetta Rosales, Chair of the Commission on Human Rights): In past years it was the “unsigning” of the Rome Statute by the US that was often cited by Philippine government officials as the reason the Philippines has not ratified the treaty. What is the significance of the “unsigning” of the Rome Statute? And if the US is now supporting what the ICC is doing, why not just join the ICC?
AMBASSADOR RAPP: The declaration “unsigning” the Rome statute represented the policy of the Bush Administration of non-cooperation with the ICC in 2002. That policy began to change when the Bush administration allowed the referral by the UN Security Council of the Darfur situation to the ICC in 2005, and thereafter led the opposition to efforts to defer the ICC prosecution of Sudan President al-Bashir. The change of policy in the second term of President Bush was also seen by the end of its efforts to negotiate “non-surrender” agreements and its approval of legislation that removed the signing of such agreements as a condition of U.S. aid. It was also reflected by the statement of the State Department Legal Advisor that the United States respected the right of other countries to join the ICC. Of course, since President Obama came to office, the US has taken up the position as an observer in ICC bodies, a position to which we are entitled because we signed the final act at the Rome conference in 1998, and we have developed a policy of supportive engagement as I described in my speech.
So you ask, why do we not just go ahead and join the ICC? Well, the United States takes a very long time to decide whether to ratify international treaties and conventions. It took us 40 years to ratify the Genocide Convention. There are some very widely-accepted conventions that we have not yet ratified. I think that this is a reflection of our history. We cut ties with mother country more than 230 years ago and developed our legal system while separated from much the world by two broad oceans. I am reminded of a conversation that I had with Navi Pillay, the present UN High Commissioner for Human Rights. I know her well because she was the presiding judge of the “media trial” that I prosecuted at the Rwanda Tribunal and was later for six years a judge of the ICC. We were discussing the Convention on the Rights of the Child. I noted that the United States was one of only two countries that had not ratified this convention. She kindly commented that the US protects the rights of the child far better than many countries have that ratified.
The same can be said of the prosecution of war crimes. The United States has a well-developed system of military justice. The provisions of the ICC Statute and Elements of Crimes on war crimes were largely drafted by an American, Bill Lietzau, who came from a military justice career in the Marines and it now a senior civilian official in the Pentagon. If an American commits a war crime, we will act the same way as an ICC member does in fulfilling its obligations under complementarity. We will never give legitimate cause for an international prosecutor to take a case against an American, because we will have pursued the case ourselves.
But there remains concern that a future ICC Prosecutor might act unfairly to target Americans. We have three million men and women under arms protecting people from terror and atrocity. Let us say that you had a situation where a warlord had intentionally killed 20,000 civilians and the US became involved to protect people, and during that action a US bomb went astray and accidentally killed twenty civilians. Even if a U.S. investigation found appropriately that the action by the US officer was not a war crime, a politically-motivated prosecutor might attempt to open a case to show that he was “even-handed.” But it is important to note that this is not the kind of case that the present ICC Prosecutor has pursued. There is also language in the ICC Statute providing for the court to respect genuine national investigations, to admit only cases of sufficient gravity, and to give preference to cases of war crimes committed on a large scale or as part of a plan or policy. But it will take the development of case standards in actual practice by a succession of prosecutors and judges to relieve this concern. Meanwhile, our engagement policy allows us to get closer to the ICC and to work to resolve these issues.
AMBASSADOR RAPP: As you know I was invited by Women of Ateneo de Manila University to address you today on international justice. One of my closest colleagues in international justice, Mayee Bringas-Warren, a graduate of Ateneo, suggested my coming here. It has been a great opportunity to share my experience and also the position of the U.S. Government on international justice.
So fire away!
QUESTION: Ambassador, earlier you mentioned that it would be nice, and Etta Rosales mentioned that it would be nice if you could put something in writing, is this something you are willing to do or planning?
AMBASSADOR RAPP: Well I certainly will make a copy of my remarks available, just to clarify on the public record that the United States does not object to any country joining the ICC. In particular, this is because in this administration, in the Obama Administration, we are working very closely with the ICC. We are offering support for each of its cases; they are cases that cry out for justice—cases of genocide, war crimes, and crimes against humanity where the innocent had been targeted by the thousands for rape, and murder and other horrible crimes, and where there is no possibility of justice at the national level. We are particularly supportive of the ICC principle of complementarity, which means you go to the national level first and try to have justice there and you only go to the international level when there is no national will or capacity.
I worked personally in international courts for Rwanda and for Sierra Leone; but those were temporary courts. In the future, when there are serious atrocities in the world there needs to be a court of last resort and the ICC is that court. Even while the US has not made the decision itself to join, we are content to see other countries join and we wanted to make that very clear here, while the Philippines considers whether to become a state party.
QUESTION: But you mentioned, Ambassador, that there is still that widespread misconception that the US is against the joining ICC. Are other countries joining the ICC?
AMBASSADOR RAPP: Certainly, the court officials say that attitude is out there. But if they see the speeches by American policy makers, beginning when Condoleezza Rice was the Secretary of State during the Bush Administration, it was made plain that the US does not object to countries joining. Since Barack Obama has been President and Hillary Clinton has been Secretary of State, we have now taken up our role as observers in the ICC and given a number of speeches on the public record where we made it very clear that we think that what the ICC is doing in each of its cases is very important, and that we want to partner with the ICC to ensure that it can bring justice to those situations where there is no possibility of justice elsewhere.
QUESTION: So, when do you think the ICC should step in when a problem arises in a particular country?
AMBASSADOR RAPP: Well, it’s the fundamental principle of the ICC that first you look to the national system. Here in the Philippines, for instance, last year, even before considering the treaty, you adopted a law to make it very plain that it is a crime under the law of the Philippines to commit genocide, war crimes, and crimes against humanity, and that those cases can be prosecuted at the national level. If those kinds of things arise, justice needs to be done here in national courts. It is only when there is no will or capacity that it goes to the ICC. Even then I think it is incumbent on all of us in the international community to help provide the capacity for the countries that do not have the technical expertise to prosecute these cases. Donors and those with experience with these cases should help. But, if there is no possibility, then the ICC should become involved. And the fact that it could become involved, I think is an incentive for justice to happen as close to home as possible.
QUESTION: Sir, do you recommend for countries to solve their problems before bringing them to ICC?
AMBASSADOR RAPP: Absolutely! I mean justice 10,000 kilometres away in The Hague is a long ways away from the Philippines and from anywhere else in Southeast Asia. It is important that the trials be close to the affected communities where people can see the trials of those that are accused; where they can see the witnesses, and where the affected communities will recognize if justice is achieved. That’s where you want to see it happen. It is only when it does not happen there that you need to go to the international level and that is the principle of the ICC.
QUESTION: Okay. Sir, [I’ll] go to a different topic. A lot of people are clamouring for Gaddafi to be tried for war crimes. What do you think of that?
AMBASSADOR RAPP: Well, the United States and every member of the Security Council, from the North, South, East and West, including China, on February 26, voted 15 to 0 to refer the situation in Libya to the ICC. There was clear evidence of massive crimes against humanity; of people being chased down, or threatened to be chased down, street to street, house to house, even into their closets, and killed without mercy or pity, and that is why it was referred to the ICC for investigation and decision. The Prosecutor reported to the Security Council last week, on the fourth of May, that he is now decided that there are strong cases against three individuals. He will go to the Pre-Trial Chamber of the International Criminal Court in the next few weeks and seek arrest warrants against those individuals.
This is now a judicial process. It is to be determined on the basis of the evidence and the law. But clearly, by our vote to refer this, we recognize that this is a process that could lead to charges against even the national leader. We are not going to decide, it is not for us, it is not a question of voting on who gets charged. It is a question on what the evidence is. But it is a process that we support.
QUESTION: When you mentioned about those individuals, are you talking about Gaddafi?
AMBASSADOR RAPP: The prosecutor decides. Obviously, in the past, he has prosecuted some very top-level people. I prosecuted Charles Taylor, the president of Liberia, in the Special Court for Sierra Leone. He can prosecute the national leader. He can prosecute security service leaders and others. It is up to him. He has to prove that a crime was committed. But he also has to be able to connect that crime to individuals, to show that individuals committed the crime or they ordered it, or they aided and abetted it, or they were part of a joint enterprise to commit it. To be able to do that, of course, is a question of evidence. And as he said, he will follow that evidence where it leads, even to the highest level. But, that is not a question for America, that is not a question for the Security Council, that is not a question for any country. It is a question for the prosecutor and then for the judges.
QUESTION: In the Philippines, we also have similar cases like EDSA I, II and III. What would be done about these kind of cases?
AMBASSADOR RAPP: Obviously, in the past you had a government that was anti-democratic, that exercised martial law, that targeted people for imprisonment and even in one famous case, for assassination. You took power in your own hands, through the ballot box, and saw to the end of that government. Each country I think has to decide how it is going to confront these questions themselves, in order to make sure that they do not happen again. Now, in this era of the ICC and when you have legislation like that adopted in the Philippines in 2009, if you have similar acts in the future, these could be the subject of prosecution in Manila or in The Hague.
QUESTION: I have one last question. Sir, you made a very clear distinction between happened in the case of Saddam Hussein and what happened in the case of Osama bin laden. Would you mind very quickly explaining the difference?
AMBASSADOR RAPP: Well, I meant that in the Saddam case, he was arrested after the end of the conflict; he surrendered, and was tried by Iraqi courts, that had passed special legislation reflecting international law. It was decided by the Iraqi people, they did not want an international court, and that they would do it themselves and seek international assistance. And the process went forward, not just on Saddam but on other leaders of his regime. Dozens of people have been tried by the Iraqi High Tribunal for crimes including genocide which was committed against the Kurdish people in Iraq.
In the case of Osama bin Laden, we are still in an armed conflict since September 11, 2001, when more than 3,000 people were murdered in cold blood including, more than a dozen Filipinos. It is appropriate during an armed conflict, just like the armed conflict we had with Japan in the 1940’s, that you can attack the enemy commanders and headquarters and it was an appropriate operation to target Osama bin Laden. Had he surrendered, then it would have been appropriate to have prosecuted him in our national system for the crimes that he committed. That did not happen and that is closure in his case. But it is a clear signal that when people commit these horrendous crimes there are going to be consequences; that the blood of the innocent is simply not going to be forgotten and that we will seek justice.
QUESTION: What is your assessment of the justice system in the Philippine in terms of caring or giving justice to those who are victims of atrocities?
AMBASSADOR RAPP: Well, I am very pleased to see the legislation that passed in 2009, that makes it a crime under Philippine law to commit genocide, war crimes, and crimes against humanity. There have not been cases yet under it but it is an excellent model. We are very supportive of the development of the rule of law and judicial institutions in this country. I think in all of our countries there are challenges; here, the judicial system is overworked and cases are often slow and justice is sometimes delayed longer than people want. In all of our efforts as a friend and a partner with this country, we want to work to help strengthen justice, certainly for these most serious crimes, but also for the crimes in which individual citizens fall victim. The rule of law has to be one of the highest priorities and the effectiveness of courts is the key part of it. All of us have a room for improvement and we are willing to work together as partners with the Philippine government and its justice and law enforcement officials to help improve the system here as well.
QUESTION: Sir, the Philippines has been identified as one of the top 20 countries with great abuses of children and women together with Bangladesh, Myanmar, Syria, and other countries. What steps could the country take to not just get us out of the list but as well improve the system?
AMBASSADOR RAPP: Well, as you know, it is very high priority of our country to deal with trafficking in persons and to protect people who are abused, people that end up becoming sex workers, or becoming exploited or almost slave labourers in some situations. It is a high priority of our government and we have an annual report in terms of how countries are doing. That is not in my particular area of jurisdiction, but it is a very important part of our government’s effort and we are working very closely with the Philippine Government, with Minister of Justice De Lima to try to strengthen the Philippine response to these crimes to move the country up on those lists in terms of successful protection of these victims.
QUESTION: What specific steps have to be taken?
AMBASSADOR RAPP: It is a question of having laws in place and enforcing those laws and effectively investigating each of these abuses, and putting judicial resources, police resources to work on them, and creating priorities for these trials—ensuring that the cases are brought to court, that they are given judicial time and attention, and that a clear signal is sent that people who commit the crime “will do the time.” Of course, with the judicial system that is overburdened and has many challenges in terms of criminal prosecution, it is always hard to say one thing or another deserves a priority. But it is our position to be sympathetic to these victims of human trafficking and to give these cases a priority. We are certainly working with the government to encourage that, and to provide assistance to see that it is done. We hope that when we make the required reports in the future that we will be able report on progress.
QUESTION: Sir, will the Maguindano massacre fall under crimes against humanity?
AMBASSADOR RAPP: This was an extremely serious crime; I want to be clear with that. There are 57 people murdered. But this is not a widespread or systematic attack of the kind we were talking about when we had groups attacked on a religious or ethnic basis. It takes a massive attack, systematic or widespread, to be a crime against humanity. It was a horrible crime, and justice cries out to for those victims and we are supportive of the efforts to expedite that trial and not to have it move so slowly. Justice delayed is justice is denied and I share the concerns that the people have in this country. It requires, I think, a unified commitment of not just the government alone, but of judges and members of the congress to work together to have the resources and the commitment of those resources so that a case like this can be processed in a way so that something like this never happens again.
QUESTION: Sir, one final question. Please answer in two sentences. What are the benefits the Philippines will have from being part of the UN Human Rights Council?
AMBASSADOR RAPP: Well, the Philippines will be able to exercise leadership in the Southeast Asian region to ensure where there are serious violations of human rights that the victims can expect the truth to be revealed and justice to be done. Okay?
Thank you very much Lizza, and thank you, Irma Cecilio, for making this session possible. It is a great honor for me to be here with the graduates of Ateneo de Manila University, one of the foremost universities of this country. I visited the Rizal Shrine in Intramuros on Sunday and learned that the national hero of the Philippines, Jose Rizal, graduated from Ateneo. I know that it has produced other great leaders of this country, including your current president, Benigno Aquino III.
I am particularly proud to be here with the Women of Ateneo, an organization that I learned about from our mutual friend, Mayee Bringas-Warren, probably my closest colleague in international justice over the course of the last eight years. Mayee was part of the first class of women that graduated from Ateneo in 1977, just 34 years ago.
I join you in support of progress for women. I am a believer in those words from the century-old women’s marching song, “Bread and Roses,” about the “the rising of the women” bringing “the greater days.” I share with my boss, U.S. Secretary of State Hillary Rodham Clinton, a strong commitment to the education, the promotion, and the empowerment of women—certainly because it is right, but also because it is the most effective single strategy for achieving economic development, human welfare, security, and justice.
Like those of you who are among the first women graduates of Ateneo, I was part of the generation that finished university in the 1970s. We are not yet old, but we can reflect on how much progress has been made, and how the world has changed during our lifetimes. I was reminded of that progress in my own country a few days ago when I saw a copy of the birth certificate of the President of the United States published in our newspapers. Some focused on the strange and crazy controversy that led the President to release it. What struck me were the details—that a mother [and] native of Kansas, only 18 years old, had given birth to an African-American child in August of 1961, and I reflected on what she could have looked forward to in raising him at that time in the United States of America.
I am older than the President [of my country]. I was twelve years old in the summer of 1961. I remember it well because it was when my family and I traveled from our home in Iowa to Washington D.C. for the first time, for a wonderful trip. But during that trip I remember eating at a lunch counter, just outside Washington, where I noticed the members of an African-American family standing behind us, getting their food in a sack even though there were chairs available. I asked my father why they were standing. He said that in this part of the country, black people were not allowed to sit at lunch counters. The summer that our President was born, black persons faced legal discrimination in public accommodations in many parts of his [our] country. In America and elsewhere, women were denied places in great universities. In many parts of the world, nations were only then breaking free from colonial control. Great progress has been achieved in our lifetimes, and human potential on this planet has been unlocked in ways that were never before foreseen. We owe it to the struggle of many, because it did not happen automatically that all those walls crumbled.
We now have the opportunity to draw on human talent from people of different parts of the world and different backgrounds, not just from elites, but from all of humankind. We are not limited to those of narrow minds and narrow views, but can bring together brothers and sisters from across the planet to face its challenges. Those challenges include the need to bring the same opportunities to those who continue to suffer from discrimination. In particular, we need to act together to protect those who are subjected to discrimination at its worst—to systematic violence, to genocide, to war crimes, and to crimes against humanity.
All through human history, people have suffered during wars and other armed conflicts. Here in the Philippines, and elsewhere in the Pacific, World War II brought great suffering to both combatants and non-combatants. But in the world of 2011, in many conflict zones it has become far more dangerous to be an innocent woman or child than it is to be a soldier. I remember the tasks that Mayee Warren and I confronted when we came first to the International Criminal Tribunal for Rwanda. My job was to prepare for an immediate trial and hers was to organize the evidence. But we both had to try to understand the Rwanda genocide: the murder of 800,000 men, women, and children in a period of only 100 days—a rate of killing that exceeded that of the Nazi death machine at its most effective. I remember that defense teams would sometimes argue that it was unintended, and say, “This always happens in a war; people get caught in the cross fire. You have to expect it.” But I remember sitting with a soldier who fought on the losing side of the civil war for control of Rwanda in 1994 and asking [him] how many soldiers were killed in the conflict. He said that there were fewer than a hundred killed on his side, probably fewer on the other. In fact, the war had not been fought in active battles. The winning army had prevailed by strangling the other side’s supply lines and by occasional bombardments, forcing the other army to retreat. But at the same time that the retreating army was losing the country, it was actually winning a genocide—the destruction of the Tutsi ethnic group that it associated with the winning army. The losing army participated in a mass-murder campaign, together with militia and armed citizens, against innocent men, women, and children—soft targets. It is this kind of targeting that we see in other conflict zones today.
The world, however, has responded to the targeting [on behalf] of the innocent, not evenly, not always effectively, but it began to do so in the 1990s with the creation of International Tribunals for the former Yugoslavia and for Rwanda. The Rwanda Tribunal where Mayee Warren and I worked is only now completing its mission. It has been successful in arresting the key leaders of the genocide in 26 different countries and bringing them to trial. Among these [perpetrators] were 13 government ministers, including the Prime Minister, 12 military leaders, various territorial governors and mayors, media directors, like those I personally prosecuted, as well as other prominent individuals. [The tribunal’s] judgments have told the story of what happened, and pronounced convictions for the crime of genocide for the first time in human history.
The question that was always on my mind during these trials was whether we were delivering justice for the victims. I have talked with so many Rwandans who had lost almost every member of their family, and I have tried to figure how I would feel if I had gone through that experience. I have wondered what I would think of the long trials and of the efforts necessary for an international court to test the evidence and hold certain leaders accountable for what they have done. Even if I saw foreign investigators, lawyers, and judges working hard, putting their hearts and souls into the effort, I have wondered whether I would think it worthwhile.
I received an answer at the end of the 34-month “media trial”—a case where the accused persons included a newspaper editor and two principals of a radio station. The newspaper editor’s case was the most straightforward because the paper had been known for its extremist rhetoric and for running vicious cartoons that demeaned anyone who would protect the Tutsi ethnic group from violence, rape, and murder.
The cases of the two alleged to be responsible for the radio station were more challenging. Both were very distinguished men: one was the general secretary of the Foreign Ministry of Rwanda, a founder of a political party, and a former secretary to the Chairman of the Organization for African Unity. The other was probably the greatest intellectual in his country, who had received a doctorate in African History with distinction from the University of Paris. Under Rwandan President Habyarimana, he had been in charge of the government newspapers and radio until he lost the position when the President was forced to form a coalition with the opposition. Thereafter he established a private radio station to support the President’s party. The station was RTLM, which became the famous “hate radio.”
The radio station was immensely popular, because unlike government radio, it actually provided entertainment—the first time this had happened on the airwaves in Rwanda. But it was entertainment full of messages of ethnic division and hatred, designed to stir up old grievances that many people had almost forgotten. The constant theme was that the Tutsi-led rebel army fighting to take control of Rwanda threatened Hutus with a return to the discrimination, even to the slavery they believed they had experienced in the past at the hands of the Tutsis. This message was accompanied by the suggestion that the Tutsi civilians in Rwanda were the accomplices of the rebel army. Proving that the radio programs targeted these Tutsi civilians for genocide was the challenge. But we were able to prove it from the broadcasts, from audiotapes gathered in Mayee’s evidence unit, in particular with one where the announcer described the enemy by his physique. “We know the enemy: we know him by his height, we know him by that small nose. Break that nose!” This was a clear reference to Tutsis, whose stereotype was tall with a thin nose, as opposed to that of the Hutu that was short with a wide nose. With the articles and the broadcasts, and with other evidence showing the control of defendants over the newspaper and radio, we were able to achieve the first convictions in history for Direct and Public Incitement to Genocide through messages delivered by the mass media.
I remember talking to a Rwandan who had lost members of his family in the genocide who was in the gallery the day the Trial Chamber announced the convictions. He came up to me and at first I was worried that he would express misgivings. We had not won on every count or on every issue, but his message was about the effect of the judgment on a personal level. He said that the men the judges had convicted were people far more powerful than he and his family had been in Rwanda. They were men of such station that he would not have been allowed to be with them in the same room. Yet they had been responsible for inciting the killing of his family, and he had thought that they would never be held to account. But the judges had made them stand to hear their guilt pronounced to the entire world, and sent them to prison for life for what they had done to their victims. He then said, “This is the greatest day of my life.” The judgment could not bring back the victims. It did not provide financial compensation to the survivors. But that judgment, holding men of great power responsible for crimes against innocent victims under universal law, was a message of immense power.
In Sierra Leone we faced different challenges and approached them in a different way. It was not a UN court like the Rwandan Tribunal or the Yugoslav Tribunal. When I went there, it meant I no longer had the direct benefit of the services of the many Filipinos who work in the United Nations and who keep UN institutions going. When I was with the UN, I can say that I never would have been employed or renewed were it not for Marilyn Dantis or Janina Ogtong in Human Resources, or paid were not for Danilo Carlos in budget, or had anything to present in court were it not for Mayee Warren in evidence.
But the Special Court for Sierra Leone was established as a partnership between the United Nations and the government and people of Sierra Leone. Some of the judges and more than 55 percent of the employees of the Court were Sierra Leoneans. It was an institution where our police investigators, our witness protection officers, and outreach officers knew their communities. They knew when a witness was telling the truth and when a witness was lying. They were the most effective in telling the people of the country what the court was doing. Our 13 Sierra Leonean outreach officers were based in each district, and made thousands of community presentations each [a] year about the court’s work, including sessions where videos would be shown of court proceedings and where the prosecutor, defense attorneys, and other court officers would appear in person to be questioned by the public. In a country where the penetration of television is about two percent, and where few newspapers circulate more than 500 copies, 90 percent of the people in the country, according to an independent poll, said that they knew about the work of the Special Court, and 80 percent of them thought that it had been a force for peace and stability.
We prosecuted only senior leadership which meant fewer trials, but they were more extensive and including more alleged crimes scenes and criminal acts. They attracted audiences who knew of the crimes, because so many had been committed within earshot and view of the court itself. Unlike the Rwanda Tribunal which was in Arusha, Tanzania, about 800 kilometers [about 500 miles] from Rwanda, or the Yugoslavia Tribunal which was in The Hague, Netherlands, about 1500 kilometers [930 miles] from the Balkans, all of the trials of the Special Court—except that of Charles Taylor—were conducted in Sierra Leone.
These [heinous] crimes deeply scarred the people of this small [vibrant] country. There were thousands of men, women, even children, who had their hands and arms brutally amputated, just as you may have seen in the movie, “Blood Diamond,” with vicious rebels asking the victims whether it would be “long sleeves” or “short sleeves”—whether they would be hacked at the wrist or above the elbow. You meet the victims of this crime in the streets of Freetown, like my friend Jabati Mambu, with a bandage covering his wrist bones, but who with great enthusiasm manages the Amputees’ Football Club. There are the survivors of the tens of thousands who were killed, who suffer from the loss of their loved ones and from the memories of the often vicious ways in which their lives were taken. And there is the ongoing pain inflicted on the more than one hundred thousand victims of sexual violence. There was rape, there was sexual slavery, and there was a crime not before recognized, where women were conscripted as “bush wives” of rebel leaders, and stigmatized in a way that they could never go home again. We sought and achieved convictions for rape as a war crime and crime against humanity, and for the first time in history, [we sought and achieved convictions] for sexual slavery as a war crime and crime against humanity. But we did not think that this fully recognized the criminal conduct represented in the forcible taking of women as bush wives, so we sought convictions for a crime not specifically described in our statute—for forced marriage as an inhuman act that constituted a crime against humanity. The defense challenged it, but in the end we were able to show that this was an inhuman act of equal or greater gravity than that of the listed crimes against humanity, and achieved the first convictions in history for this criminal conduct.
Our mandate was limited to charging only those “bearing the greatest responsibility,” so many who committed awful crimes, but were not national leaders, have escaped justice. As at the Yugoslav and Rwandan tribunals, there was no effective way for the court to provide reparations for the victims. But for those victims, so many of whom I met across Sierra Leone, the convictions of the powerful men who commanded or enabled these brutal acts, and the condemnation and punishment for each of the ways in which the innocent were made to suffer, has been exceptionally meaningful. These trials and convictions, and the way in which they were communicated through the court’s outreach, have broken the cycle of impunity in Sierra Leone, contributing to a situation where governments now changed in Sierra Leone are not run by violence but by election. All the trials and appeals are now complete except for that of former Liberian President Charles Taylor. His case now awaits only the pronouncement of judgment by the Trial Chamber sometime in the next four months, with any appeal thereafter likely to take about six more months. With its conclusion, the active proceedings of the Special Court will be at an end.
With the closing of these temporary courts, many are asking the question: Where will the victims of other atrocities find justice? I face the [same] question everywhere. These courts have raised the expectations of victims around the world. They ask why they cannot have a special court like [the citizens] you had in Sierra Leone, or the same kind of justice that was provided for the victims of the Rwandan genocide. Have they not suffered similar crimes?
For cases that have arisen since July 2002, there is an answer in the system established by the Statute of Rome, with the International Criminal Court in The Hague as the court of last resort but with countries encouraged to try these cases at the national level under the principle of “complementarity.” I know that here in the Philippines, your Senate will soon consider ratification of the Statute of Rome.
I have had a great deal of contact with ICC and its officers. By special arrangement, the Sierra Leone court conducted most of the trial of Charles Taylor in the courtrooms of the ICC. I have come to know well the ICC Prosecutor, Registrar, and President. Our mutual friend, Mayee Warren, was Chef de Cabinet to the ICC Prosecutor, who has generously allowed her to come on loan to work at the Special Court for Sierra Leone until it closes in order to ensure that its archives are secured, its witnesses protected, and its legacy preserved.
I am no longer an international prosecutor, but [am] now an Ambassador-at-Large for the United States of America. I now visit the ICC as the representative of my government. Recently when I was in The Hague, I saw the ICC President, Judge Song of South Korea. He and I had traveled to Kinshasa in the DR Congo in December 2009 to both deliver a message in favor of adopting legislation to permit the national prosecution of ICC crimes in the Congolese courts. He and I often talk about his worldwide travels to encourage ICC ratification and its implementation into national law. This time he spoke of his trips in March of this year to Malaysia and the Philippines in support of ICC ratification. He said to me, “When I travel, I find people who have this impression that the ratification of the ICC will be viewed as an unfriendly act by the Government of the United States. Apparently, this is not the case. Why don’t you just say it?”
So I will. The United States respects the right of every country to join the ICC. This was the position of the last administration, under former U.S. Secretary of State Condoleezza Rice, expressed in the public words of her Legal Advisor. In this administration, we have gone further to engage supportively with the ICC. While we have not made the decision ourselves to ratify the Statute of Rome, we are participating as observers in the ICC Assembly of States Parties and Review Conference, and we have offered to assist the Prosecutor and Registrar in each of the current cases of the ICC, seeking ways consistent with our law to help with witness protection and relocation, information-sharing, and the arrest and transfer of fugitives.
The United States strongly supports the prosecution of those who are responsible for genocide, war crimes, and crimes against humanity. Consistent with the ICC principle of complementarity, and as longstanding U.S. policy, we support national efforts to achieve accountability. But when the most grave and serious crimes are committed and there is no will or capacity to prosecute at the national level, most of the countries in the world have decided, and the United States accepts, that this justice will be delivered in the International Criminal Court. We will work closely with our allies and friends who within the ICC, which may soon include the Republic of the Philippines, to strengthen the ICC, to make it the kind of institution that can be effective in investigating, prosecuting, and trying those responsible for these crimes. We want those arrest warrants to be executed. We want the guilty to be found guilty and the innocent not to suffer. We want the victims to achieve justice, and we hope that this will deter crimes and protect others from becoming victims in the future.
But it is also important to recognize that the ICC alone cannot meet the [for] need for justice even in countries where the ICC is prosecuting cases with national cooperation. Given its number of judges, its limited resources, and the legal requirements for admission of its cases, it is not likely to ever have more than 20 or 30 individuals before it [at] any [given] time. Evaluating it in terms of [the ICC’s] global reach, it may be able to do only two or three trials in any specific country situation. It may be able to prosecute senior leaders, but will not be able to reach those beneath them who may be responsible for hundreds of atrocities.
Where will the victims of these atrocities to find justice? That question is being asked, and I hope answered, in the Democratic Republic of Congo, a country to which I will make my seventh visit the day after tomorrow. Four of the five people in custody at the ICC are charged for crimes in the Democratic Republic of Congo. But the cycle of impunity is not yet broken. In the last two years in two provinces of the Eastern Congo, more than 1,500 innocent civilians have been killed by armed groups, and more than 15,000 women and girls have been raped. Mass rape has become a weapon of war to announce a group’s presence and power, and to humiliate, devastate, and destroy targeted communities. In some notorious cases, there has been success in the Congolese military courts, most recently in convicting those responsible, including a colonel, for 52 rapes committed on New Year’s Day 2011 in Fizi, South Kivu. But the colonel’s case is an exception; it is difficult to bring those of senior rank to account. To take on senior commanders responsible for current crimes that are not being prosecuted at the ICC, and to deal with those who committed major atrocities before 2002, when ICC jurisdiction began, the Congolese parliament is considering legislation to establish a specialized mixed court within the national justice system. This court would include international judges in trial and appeal chambers, and international staff in investigative agencies and prosecution offices. This could help ensure the capacity and independence to prosecute and try the cases of powerful individuals. This can bring together international expertise and local knowledge and experience, in a way that cannot be accomplished in any existing institution. It will take great efforts to accomplish this in the Democratic Republic of Congo, but this approach offers the best promise of achieving justice in a way that will truly end the cycle of impunity.
There are places, however, where the ICC is unlikely to gain jurisdiction, and where the possibility of justice and accountability at the national level seems but a distant hope. I refer to the situation in Burma. Over the course of several decades, its military government has engaged in massive repression, denying its citizens a voice in their government, imprisoning those who engage in peaceful protest, while engaging in wars in [its] border areas against ethnic armies that are fighting for greater autonomy. In the conduct of these wars, the military has targeted the local populations, destroying thousands of villages, subjecting almost every civilian in these areas to pillage and forced labor, and killing and raping at will. These brutal practices are not committed by soldiers who are out of control, but rather are part of the implementation of the strategy of “four cuts” to remove populations which could provide support for the ethnic armies. Indeed, one women’s group has documented that more than 80 percent of rapes are led by military commanders. As a result of these practices, more than a million Burmese have been driven into exile.
We recently watched as the Burma government conducted elections, but the results were preordained. The military ensured that it ended up in control of more than 80 percent of the seats in parliament. The uniforms came off, but the same group of individuals remains in absolute control. Aung San Suu Kyi was released from years of house arrest, but more than 2,000 political prisoners languish in horrible conditions. Meanwhile, the armed conflicts in the border areas have—if anything—intensified, with new refugees telling of pillage, forced labor, murder, and rape by government forces.
I was at the Thai-Burmese border in January, speaking to refugees and the persons who are dealing with the humanitarian challenge. I asked them what the international community could do. Each of them, whether they were refugees who had left Burma 20 years ago or 20 days ago, whether they were doctors or aid workers, said that we should support an international commission of inquiry because it would signal to the Burmese military that the world was watching and it might lead some not to commit or permit the crimes against civilians. Those I met made it clear that it was not trials at the ICC that they were seeking, but a process that would reveal the truth and allow the people of Burma to develop their own approach to accountability.
U.S. Secretary of State Hillary Rodham Clinton has underscored “the American commitment to seek accountability for the human rights violations that have occurred in Burma by working to establish an international commission of inquiry through close consultations with our friends, allies, and other partners at the United Nations.”
I have been one of those engaged in these consultations. The views of the countries in the region will be very important in determining whether there will be a commission of inquiry for Burma. This is particularly the case because the issue is likely to be decided in the Human Rights Council in Geneva, to which the Philippines and Indonesia are certain to be elected later this month, to join their fellow ASEAN members, Thailand and Malaysia, [in] providing a strong regional presence among the 47 countries on the Council. When commissions of inquiry were created for Guinea and Cote d’Ivoire, the unanimous support of the African Union and the Economic Community of West African States was the key to their creation. When the Human Rights Council created a commission of inquiry for Libya earlier this year, its creation had the unanimous support of the Arab League. The numbers of victims have been far greater in Burma than in all of these situations, but the rest of world will listen closely to the views of the governments and peoples of the ASEAN countries in deciding whether to establish a commission of inquiry.
In the last fifteen years, we have begun to achieve justice for the most serious crimes known to humankind. It has not been accomplished in every place where these crimes have been committed, but the successes achieved have raised the expectations of victims and the demand for justice. That demand will not be satisfied without international support for mechanisms that will make it happen—for independent investigations to find the truth, for national judicial systems strengthened so as to be able to hold the powerful to account—and if the will and the way cannot be established at the national level, for an international court to receive the cooperation and assistance necessary to bring the greatest perpetrators to trial.
We owe to it to the men, women, and children who, after enduring savage crimes that we can hardly bear to imagine, have the right to demand justice. Finally, we owe it to all of humankind to make institutions of international and national justice so effective that individuals will be deterred from committing acts of genocide, war crimes, and crimes against humanity.
Thank you very much.
Ambassador DiCarlo’s Remarks At an Open Security Council Debate On the International Criminal Tribunals For the Former Yugoslavia and Rwanda
Presidents Robinson and Byron, Prosecutors Brammertz and Jallow, thank you very much for your briefings today. Judge Khan, congratulations on your appointment. And Judge Byron, thank you for your valuable service.
Mr. President, we open this debate on a day when Ratko Mladic is in The Hague. His capture, arrest, and transfer to the International Criminal Tribunal for the Former Yugoslavia is a milestone on the path to justice and reconciliation. We commend the Government of Serbia for apprehending Mladic, and we welcome President Tadic’s statement about his country’s commitment to apprehending the final ICTY fugitive, Goran Hadzic. Mladic’s capture means that he will now have to answer to victims for his alleged crimes, including the genocide at Srebenica, Bosnia-Herzegovina in 1995. It puts perpetrators of mass atrocities on notice: they will be held accountable for genocide, war crimes, and crimes against humanity. We expect all UN member states to take the steps necessary to bring to justice those indicted by the Tribunals.
Mr. President, we welcome the steady progress the Tribunals for the former Yugoslavia and Rwanda have made to increase their efficiency. We urge both Tribunals to strive to complete their work at the earliest possible date. We are mindful of the importance of doing so without sacrificing the high standards of a fair trial. We urge the Presidents and the judges who act as managers of the courtrooms to take every measure to ensure that trials and appeals are both expeditious and fair.
These Tribunals and their predecessors have had genuine historical impact. The establishment last December of the International Residual Mechanism for Criminal Tribunals demonstrated that war-crimes fugitives cannot escape justice. The Residual Mechanism will allow for the completion of those functions that will necessarily outlast the Tribunals themselves. Transfers of cases to national jurisdiction have been made possible because States have further developed their judicial and investigative capacities. Programs such as the Joint European and ICTY Training Project for National Prosecutors and Young Professionals are welcome efforts to help build such long-term capacity.
Again, we applaud the Tribunals’ work thus far, and we urge them to make the most efficient use of available resources. We also encourage the Tribunals to continue to work with the UN Secretariat and other relevant UN bodies to develop practical and effective methods, including retention measures, to address the staffing shortages and the problems of attrition highlighted in the Prosecutors’ reports.
Mr. President, the United States calls on states in the former Yugoslavia to cooperate fully with the ICTY, which is both a legal obligation and a key to Euro-Atlantic integration. We welcome the Government of Croatia’s continued strong record of cooperation with the ICTY and its commitment to continue to search for any additional information the Prosecutor requested. Croatia provided crucial witnesses and documents in the important case against Ante Gotovina and others, which proved critical to the Tribunal’s deliberations.
We appreciate Croatia’s reaffirmation of its commitment to support the ICTY through the conclusion of its processes.
Let me turn now to the International Criminal Tribunal for Rwanda. The United States welcomes the May 2011 judgment in the case of former chief of staff of the Rwandan army, the former head of the military police, and the two former commanders of the reconnaissance battalion. This case was the second one concluded by the ICTR that involved the responsibility of former senior military officers. It represents an important step for the Rwandan people toward justice and accountability.
The United States also welcomes the recent apprehension of the fugitive Bernard Munyagishari in the Democratic Republic of Congo. We urge all states to cooperate fully with the ICTR in their efforts to locate and apprehend fugitives. We commend those countries that are cooperating with the ICTR to bring the remaining nine fugitives to justice. We encourage continued progress so that these fugitives can be swiftly arrested.
On behalf of the United States, let me thank the U.N. Office of Legal Affairs for its dedication and service to the Tribunals. Let me also again thank the Presidents, Prosecutors, Registrars, and their staffs for all that they do to promote justice under international law for the victims of war crimes and mass atrocities.
Mr. President, we will never be able to bring back those who were murdered in Rwanda or the former Yugoslavia. But Ratko Mladic will now have to answer to his victims—and the world—in a court of law.
From Nuremberg until today, my government has long viewed justice for war crimes, crimes against humanity, and genocide as both a moral imperative and an essential element of stability and peace. We reaffirm those convictions again today.
Thank you, Mr. President.