INSTITUTE OF CULTURAL DIPLOMACY

ogmundur lubl

Tvisvar hef ég sótt ráðstefnur á vegum Institute of Cultural Diplomacy, ICD, annars vegar í Ljubljana í Slóveníu í lok október á síðasta ári (sjá: http://ogmundur.is/annad/nr/6516/ ) og hins vegar í Berlín nú 13.-16. desember.
Á báðum ráðstefnum flutti ég erindi og tók þátt í umræðum stjórnmálamanna, fræðimanna og áhugafólks almennt um leiðir til að stuðla að friði og koma í veg fyrir glæpi gegn mannkyni. Hér að neðan er ræðan sem ég flutti í Berlín en þá líkt og í fyrra tilviki sótti ég í smiðju Vals Ingimundarsonar, prófessors í nútímasagnfræði við Háskóla Íslands við samningu erindisins.
Á fundinum í Berlín var ég beðinn að setjast í eins konar ráðgjafaráð fyrir stofnunina og má sjá hér á þessari vefslóð hverjir sitja þar: http://www.culturaldiplomacy.org/index.php?en_advisoryboard 

Ræða mín í Berlín:
The ICD Annual Conference on Cultural Diplomacy

Berlin 13-16, December 2012

The UN Genocide Convention, War Crimes Tribunals, and the Politics of

            Justice: Historical and Contemporary Perspectives

                                                               Ögmundur Jónasson

                                                  Icelandic Minister of the Interior

It is an honour to have the opportunity to address this Annual Conference of the Institute of Cultural Diplomacy in Berlin on genocide and international justice as a follow up to the recent ICD Ljubljana Human Rights Conference.  The ICD Initiative on the "Convention on the Prevention and Punishment of the Crime of Genocide" has highlighted the need to strengthen the 1948 UN Genocide Convention by incorporating, in some form or other, the principle of the Responsibility to Protect-the notion that sovereignty is not a right but a responsibility-into its enforcement mechanisms. 

In Ljubljana, I discussed the first part of the UN convention: the dilemmas, interests, and contradictions, with which the "international community" has been faced  in its efforts to develop preventive and preemptive instruments to deal with mass crimes by focusing on the clash between universal humanitarian aspirations and sovereign state interests.  It partly explains why the UN initiative on the Responsibility to Protect has not been encoded in international law.  Yet, as an emerging legal norm, it is also becoming a political tool for making the protection of citizens in conflict zones-whether in Palestine, Syria or Congo-an absolute priority in international politics.

In this talk, I will explore the second part of the UN Genocide Convention-the question of punishment-from historical and contemporary perspectives.   My purpose is twofold: to determine the Convention's effectiveness as an instrument to counter genocidal practices and to measure its retributive judicial aspects up against restorative justice mechanisms-such as truth commissions and reparations.  Marking a milestone in international law, the Convention's entry into force in 1951 reflected an international willingness to codify the so-called Nuremberg principle, a set of guidelines for determining what constituted war crimes after World War II. 

Historically, genocides have been motivated by several factors: one has to do with material desire to create, expand, and preserve formal states and empires, with the perpetrator calling on the armed forces to facilitate the acquisition of wealth, eliminate a perceived threat or to spread terror. Another reflects the search for an idealized future-"the end of History"-inspired by a utopian ideology, with the state demonizing the victim group and deploying intensive propaganda to mobilize violence on a grand scale.  A third one focuses on a combination of both-the use of political myths, such as those embodied in ultranationalism, to stake out a claim to territorial sovereignty.

According to the UN Genocide Convention, genocide is defined as an intent to destroy certain specified types of groups, underscoring the notion of dual victimhood: both the person killed as well as the group.  The idea was that those who commit genocide challenge the universality of human identity as a fundamental right.  It was coupled with a desire to establish a permanent international court to punish the perpetrators of atrocities. The project, however, quickly became a casualty of the Cold War, with the main antagonists unable to agree on a mandate for such a court. They were also unwilling to face charges levelled against themselves for breaching the Convention, as was the case with the United States during the Vietnam War.  Indeed, a permanent international judicial body, the International Criminal Court, did not become a reality until half a century later.  

Thus, despite its promise, the Genocide Convention became dysfunctional as soon as it came into being.  It also became the subject of intense criticism for offering an inadequate definition of genocide and for the lack of real provisions on enforcement.  First, it made no distinction between violence intended to annihilate a group and a nonlethal attack on members of a group.  Second, on the insistence of the Soviet Union and its client states, it intentionally excluded the deliberate annihilation of political groups and social classes from its definition of genocide.  That meant that victims of state-organized, politically motivated mass killings in Stalin's Soviet Union, in Indonesia or in Cambodia were excluded.   Thirdly, UN member states were, generally, opposed to the establishment of international judiciary and police powers that would override their own sovereign powers.  Since the perpetrators of genocidal killings are usually sovereign states, UN member countries showed themselves reluctant to act against one of their own.  

In other words, following the Nuremberg trials in 1945-1946, and the adoption of the Genocide Convention five years later, the UN absolved itself from any responsibility in the realm of genocide prevention and punishment.  Decades passed without any international trials of war criminals and those guilty of taking part in genocides.  During the Cold War, the absurdity of the situation became so pronounced that none of the mass killings from the 1950s until the late 1980s were denounced by the UN as genocides. Thus, the United States and other Western powers supported the UN seating of the murderous Khmer Rouge instead of the ruling Vietnamese, who stopped the genocide in Cambodia, because it would mean the non-recognition of the spoils of the Vietnamese invasion of Cambodia.  Similarly, when Indonesia occupied East Timor and killed an estimated one-third of its population, nothing was done.  In short, after codifying its condemnation of genocide, the UN condoned it in practice.

It was not until the 1990s, when the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) and its counterpart in Rwanda (ICTR) that the Genocide Convention was revived as an instrument of international justice.  And the first time that the 1948 law was enforced was with the 1998 genocide convictions of Rwandan political leaders. The first state to be found in breach of the Genocide Convention was Serbia in 2007.  While the International Court of Justice cleared Serbia of direct involvement in genocide during the Bosnian war, it ruled that Belgrade breached international law by failing to prevent the 1995 Srebrenica genocide and that it failed to try to transfer the persons accused of genocide to the tribunal to comply with the Genocide Convention.

Consistent with the Yugoslav and Rwandan precedents, special courts were subsequently established for Sierra Leone, Bosnia and Herzegovina and Cambodia.  This phase of rapid expansion was characterized by a focus on questions of institution building and by a willingness to reapply the Nuremberg principles in court.   Accountability in the form of punishment was seen as being crucial to prevention, as former UN Secretary General, Kofi Annan, emphasized in his Action Plan to Prevent Genocide.  This new understanding also marked a break in the interpretation of the Genocide Convention.  As Martin Mennercke has pointed out, it used to be seen as offering only a single understanding of how the "international community" could fight genocide-namely, through the dual acts of "prevention" and "punishment."  It overlooked another possibility, namely, the combination of the two: "prevention through punishment."  Given the prominent link between the two factors in most domestic criminal courts, it may sound surprising that the deterrent value of retributive justice emerged so late in international discourse.  But since the "international community" had paid scant attention to genocides for such a long time, it is perhaps more indicative of the absence of responsibility in this area. 

The basic premise of the prevention through punishment argument may be open to question.  While punishment can serve the cause of justice, it is not clear to what extent, it prevents genocidal acts.  One can, for example, speculate-a-historically-that trials would probably not have played any difference to ideologically driven-leaders like Hitler or Pol Pot.  Others, like Slobodan Milosevic, may have realized that they were not the masters of their own fate but, as Michael Mann has argued, they were already playing for high stakes.  If they lost, they realized that they would die anyway; if they won, the risk of future prosecution would have paled in comparison to the prospects of being hailed as national saviours.  Thus, any firm generalizations about the impact of the threat of prosecution should be avoided.  The possibility that the UN Security Council would refer the Darfur situation to the International Criminal Court (ICC) proved to be a real deterrent; war lords expressed deep worries about being sent to the Hague.  In other cases, however, they were not instrumental: The tribunal for the former Yugoslavia was established in 1993, but the Srebrenica genocide took place two years later, in 1995, and the ethnic cleansing campaign in Kosovo in 1999.  As Judge Robert Jackson already put it in 1945: "Wars are started only on the theory that they can be won; personal punishment, to be suffered only in the event that the war is lost, will probably not be a sufficient deterrent to prevent a war where the warmakers feel the chances of defeat are negligible." Similarly, it may be argued that the assumption that those who commit genocides carry out their policies on the basis of a cost-benefit analysis, lacks plausibility.  Such an assessment, however, should not be mixed with the need for bringing them to justice.  

Those who have criticized trials as a failed instrument to prevent massive human rights abuses have sometimes gone too far in the other direction by proposing and praising amnesties-granted to perpetrators in the name of societal reconciliation-as an alternative.  But this is a false dichotomy.  It cannot be considered just to reward criminals and keep them in power for the sole purpose of achieving political stabilization.  And even if international criminal prosecutions may have limited impact on ongoing conflicts, their long-term effects may be considerably greater. Trials offer ways to express both public condemnation of past violence and the legitimization of the rule of law necessary to the consolidation of democratic rule. 

The international trials in the 1990s were modelled on the postwar Nuremberg Trials.  The Nuremberg precedent was by no means flawless. The charges and verdicts were partly based on retroactivity-with some of the norms guiding the prosecutions not being in place at the time of the offenses.  But given the spectacular nature of the Nazi crimes-including extermination campaigns against Jews and the Roma and Sinti-this should not be seen as a sufficient ground for delegitimizing the court.  The charge of politicization has more validity since the Tribunal's construction was political, undermining the ideals of impartiality and universal norms.  The silence on war crimes committed by the Allies, such as the atomic bombings in Hiroshima and Nagasaki or the bombing of German cities, underscored this point.  The Nuremberg trials offered, however, standards of accountability in international law; responsibility for atrocities could for the first time be attributed to individuals.  Moreover, the Nuremberg principles lifted the defence of immunity from the heads of state-a crucial legal precedent for present-day prosecutions against government leaders for genocide.      

The recent international trials were political in the sense that they were in some cases driven by interventionist parties, such as the Western powers in the Balkans.  In addition, their legitimacy in international law was based on the UN Security Council, whose decisions are often driven as much by geopolitical interests as universal legal norms.  These tribunals also suffer from many of the same flaws as the Nuremberg Tribunal did.  The question of selectivity is a case in point.  Courts can only deal with a limited number of offenders, even if the perpetrators are far more numerous.  Selection is often, if not exclusively, based on who gets caught and whose actions were so public as to create many witnesses.  Thus, the method tends to create a sentiment that the prosecution is unfair.  Finally, international trials, while highly symbolic politically, punish only a few. 

Nonetheless, it can be stated that international courts, such as those for the former Yugoslavia and Rwanda, were less susceptible to charges of Victors' Justice than the Nuremberg tribunal.  The defendants were offered extensive lists of due process guarantees, including presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; the right to have charges proved beyond a reasonable doubt; and protection against double jeopardy.  In contrast, even if domestic courts can act more quickly, they sometimes lack legitimacy in the cases of mass crimes due to weak institutional legal structures or political bias through government intervention. 

One of the goals of the International Criminal Court, which came into being in 2002, is to overcome such hurdles.  The court is intended to be a form of justice of last resort, investigating and prosecuting where domestic courts have failed.  True, it is not a perfect tool:  It can only prosecute crimes committed since its inception and its mandate is restricted.  Many of the member states have provided their own national courts with universal jurisdiction over the same offenses and do not recognize any statute of limitation for grave crimes such as genocides.  More important, some Great Powers do not recognize the jurisdiction of the court, such as the United States, China, and India, undermining its authority and claim of universality.  Yet, the Court has opened important investigations into war crimes in several African states, such as Congo, Uganda, Darfur, and Kenya.  In some instances, the cases were referred to the Court by the concerned states themselves and in others by the UN Security Council.  The Court has not indicted many people, but despite criticisms of its jurisdictional and prosecutorial powers, it has an important role to play in responding to genocidal crimes, with 121 states being party to it.  Irrespective of whether it has a deterrent value, it offers one way of meting out justice.

Responding to mass atrocity with legal prosecution reflects an effort to embrace the rule of law and to offer justice to victims.  The success of such trials should be measured not by the number of prosecutions or convictions, but whether they are fair or not.  Political stability and reconciliation are not among the goals of trials.  To be sure, as Martha Minow has pointed out, trials transfer individuals' desires for vengeance to state or official bodies and "cool vengeance intro retribution".  Yet, they do not offer forgiveness or apologies to victims since their focus is on the perpetrators.  For these reasons, other ways are also needed to deal with the consequences of genocides. 

This brings me to the question of restorative justice as opposed to retributive justice within the context of what has been termed "transitional justice"-that is, the political and legal processes characterizing the transition from authoritarian rule to democracy or from abusive regimes to more tolerant ones.  It may be argued that it is not enough to punish perpetrators; victims also have a moral right to know the truth about past misdeeds and to have their concerns addressed.  Truth commissions, reparations, apologies, and truth reports have traditionally been seen as vehicles to deal with such issues.  Their focus is less on individuals and more on communities and nation-states; they seek to uncover facts, identify perpetrators and assign responsibility as part of the process of confronting the past and of building new relationships between citizens and the state.  They are severed from prosecutions, avoid vengeance, and even retribution, even if they can recommend legal action against perpetrators.  Truth commissions fail to create potential closures afforded by trials that end in punishment. They do not order victims to forgive perpetrators, for individuals, not states, are the only ones capable of doing so. And they should, of course, not be used as mechanisms to avoid trials, as some perpetrators want.   

Indeed, a strong argument can be made for dismissing the notion that truth commissions alone can produce societal reconciliation after mass atrocities, such as genocides. They are more of a theatrical display, even if they often serve therapeutic aims and help establish the "truth" of what happened.  The South African Truth Reconciliation Commission (TRC), grappling with the legacy of Apartheid, had the authority to grant amnesty to individuals who voluntarily accepted responsibility for committing politically motivated crimes.  Like the courts, the TRC pronounced guilt and innocence, but did not dispense forgiveness.  And the dispensing of amnesty did not require a show of remorse from those indemnified. Judging from afar there was tremendous dynamism in this process and may have contributed in helping society at large overcoming the traumas of the past and entering a new future. As such it had an almost religious dimension.   

The downside of the restorative process in South Africa was, however, as many victims stressed, the deprivation of the right to seek justice through criminal or even civil prosecution.  It is true that the Truth and Reconciliation Commission accomplished one of its key aims-that of securing a peaceful transfer of power.  The black majority in South Africa gained control of the political system, providing the victimized with the power to rule, but in partnership with the perpetrators-the white elite who still control vital economic resources. But the notion of pardoning mass murderers, whose contrition could be feigned, can be interpreted as being irreconcilable with justice and victims' concerns.  The need for political stabilization after major societal ruptures should not be rationalized by a need to forsake accountability and absolve perpetrators.

There has to be a credible method to respond to mass crimes, which combines retributive and restorative justice.  Indeed, one of the great innovations of the Statute of the International Criminal Court is the series of rights granted to victims.   For the first time in the history of international criminal justice, victims have the possibility to present their views and observations before the Court, offering a balance between the trial's focus on perpetrators, on the one hand, and the victims, who gain increased authority through their participation, on the other.  What is more, a Trust Fund has been set up in connection with the Court to make financial reparations to victims and their families.  The criticism of the Court that it can hamper reconciliation processes or prolong conflicts by not offering amnesties is in my view misplaced.  While all post-genocidal judicial processes may involve some trade-offs between truth and justice, it should not be the role of the Court to interfere directly into conflicts by making compromises that favour political elites guilty of mass crimes. 

In this talk, I have sketched some of the political and legal implications of the 1948 UN Genocide Convention. Established within the context of the Nuremberg Trials and the Nazi genocide, it was a foundational act together with the Universal Declaration of Human Rights.  The Convention might be thought of as the first contemporary "human rights" convention, although earlier international treaties addressed concerns such as the slave trade, trafficking in women, and workers' rights.  But as we have seen, Cold War Realpolitik made the Convention meaningless for decades.  It was only after the end of the East-West conflict that a space opened up in the international arena for addressing questions of prevention and punishment and for breaking a culture of impunity. 

This is where we find ourselves in time. As the colossal failure of the "international community" in Rwanda shows, it is not enough to punish perpetrators; the most important thing is to prevent genocidal crimes from being perpetrated in the first place and to protect potential victims.  More often than not the willingness to do so has been undermined by raw geopolitical and state interests. Admittedly, it is extremely difficult to find clearly defined instruments, with universal applicability, to deal, preemptively, with impending genocide.  As a reaction to external threats, genocides are no longer prevalent; they have more often become a way of reacting to internal threats.  But the "international community" has the obligation to intervene if such acts are imminent.  The same applies to the handling of the consequences of genocides. The ad hoc trials for the former Yugoslavia or Rwanda and the International Criminal Court are certainly not beyond reproach.  But what they represent is a serious engagement with genocides and other mass crimes in stark contrast to the calculated political inertia and cynicism that prevailed during the Cold War era.

The deterrent value of war crimes trials may be uncertain-and their selectivity is an example of flawed justice-but we should not forget that despite state-sponsored obstructionism and delays, major perpetrators in the Rwandan, Yugoslavian, and Cambodian cases eventually ended up in court.  For the victims, it is a sign that their suffering has been recognized.  The ICD Initiative on the "Convention on the Prevention and Punishment of the Crime of Genocide" is geared toward finding ways and means of sparing mankind the terrible experience of genocide-through an international commitment to the responsibility to protect.  It is an injunction to prevention and accountability, reflecting a moral duty and a historical responsibility to remember and to act.  It also is the anti-thesis to apathy and numbness, which, for long periods of time, marked the history of the UN Genocidal Convention and the immoral conduct of the "international community" when faced with the reality of genocide.

(This lecture was slightly abbreviated in the spoken word.)

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