RÆTT UM MANNRÉTTINDI Í HÖRPU
Á seinni degi ráðstefnunnar, sem nú fer fram í Hörpu á vegum Innanríkisráðuneytisins, Eddu, rannsóknarseturs Háskóla Íslands og Institute for Cultural Diplomacy eru á meðal ræðumanna Emil Constantinescu, fyrrum forseti Rúmeníu, nú prófessor við háskólann í Búkarest en hann var um árabil rektor skólans. Í erindi sínu spyr hann að hvaða marki megi nota menningartengsl í mannréttindabaráttu. Franco Frattini, fræðimaður og stjórnmálamaður, m.a. utanríkisráðherra Ítalíu 2002-2004 og 2008-2011 fjallar um skyldur alþjóðasamfélagsins til að koma til hjálpar þar sem mannréttindabrot eru framin. Þriðji ræðumaðurinn í dag er Kinga Göncz, þingmaður á Evrópuþinginu og fyrrum ráðherra í ríkisstjórnum Ungverjalands, m.a. utanríkisráherra 2006-2009. Hún fjallar um ófriðinn á Balkanskaga og aðkomu Evrópusambandisns að friðrferlinu þar.
Að þessum erindum loknum verða pallborðsumræður. Ráðstefnan hefst 9:30 og lýkur 12:30.
Hér opnunarræða mín á ráðstefnunni í gær:
Confronting Mass Attrocities: International Responsibility and Humanitarian Rights Protection
It is a pleasure to welcome you to the Reykjavik Human Rights Congress-sponsored jointly by the Icelandic Ministry of the Interior and the Institute of Cultural Diplomacy in Berlin in collaboration with Edda, Center of Exellence at the University of Iceland-on international responsibility to preserve human rights and to respond to mass atrocities. We have invited a diverse group of distinguished current and former politicians, judicial and NGO representatives, and academics to discuss the dilemma facing the „international community" in cases of conflicts, involving grave human rights violations, and the applicability of legal instruments and political norms, such as the UN Genocide Convention and „the Responsibility to Protect" doctrine, to stop war crimes, crimes against humanity, and genocides.
There will be references here to both historical and contemporary examples of such conflicts-in places such as Rwanda, Cambodia, Palestine, the former Yugoslavia, Congo, Libya, and Syria-and the consequences of ethnic cleansing, mass killings and rapes. The question is not about a lack of knowledge about such atrocities, but about how to ensure that they are not committed in the first place. The focus here will not only be on the geopolitical, legal, and ethical problems of interventions or the tensions between sovereign state rights and individual human rights. We will also explore the impact of conflicts on gender and social groups, post-conflict reconstruction, and transitional justice processes. Similarly, we will explore the role of interveners, whether soldiers or peacekeepers, whose conduct often has decisive influence on the development of conflicts and post-conflict politics. In short, we want to address the topic from a wide range of political, legal, gendered, social, and cultural perspectives. For an engagement with core questions involved here is needed to find ways to act more responsibly, as individual citizens and as members of a global or collective community, towards those who are in danger of being victimized as a result of extreme systematic violence.
The 2005 UN initiative on the Responsibility to Protect, which was rooted in the failure of the "international community" to stop the Rwandan genocide, was based on the notion that sovereignty is not a right but a responsibility. It is based on three principles:
- That a state has a responsibility to protect its population from mass atrocities;
- That the "international community" has a responsibility to assist the state to fulfill its primary responsibility;
3.That if the state fails to protect its citizens from mass atrocities, the international community has the responsibility to intervene through coercive measures such as economic sanctions or military intervention as a last resort.
The "Responsibility to Protect" idea is what has been termed an emerging, if contested, norm, and it is not coded in international law. When it comes to implementation, the instruments are embedded in existing UN Security Council mechanisms, such as the UN Genocide Convention, mediation, economic sanctions, and war making power in the case of "the existence of any threat to peace, to breach of the peace, or act of aggression," as it is put in Chapter 7 of the UN Charter. Thus, the authority to use force or engage in intervention rests solely with the UN Security Council and the General Assembly. And it is here that there is no consensus on how to interpret or enforce the norm provided for in Responsibility to Protect. The current deadlock in the Security Council on the Syrian crisis exposes the crux of the dilemma when acute humanitarian concerns clash with geopolitical interests.
Our discussion at this conference will take account of various approaches to political action geared toward the upholding of the principle of human rights. For one thing, we need a clearer definition of situations, where populations face mass atrocities. This will, admittedly, not be easy, because each conflict has different dynamics, depending on its nature, geography, proximity to-and interests of-other stakeholding countries. Moreover, the history of interventions for humanitarian purposes has been decidedly mixed. Such scenarios have, therefore, to be treated with extreme care, because they could undermine existing international legal codes protecting civilian populations. Nonetheless, such questions cannot be evaded for they are existential for those affected-the victims.
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. Indeed, a permanent international judicial body, the International Criminal Court, did not become a reality until half a century later.
In other words, the UN absolved itself from any responsibility in the realm of prevention and punishment. Decades passed without any international trials of war criminals and those guilty of taking part in genocides. 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. Consistent with the ex-Yugoslavia and Rwanda precedents, special courts were subsequently established for Sierra Leone 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.
Yet, politically and legally, the justification for preventing or halting atrocities and punishing those responsible for them has not been sought in a broader definition of genocide or by amending the Genocide Convention. Rather, the goal has been pursued through an expanded understanding of the term "Crimes against Humanity," which was first used in the postwar Nuremberg Trials. This term now includes crimes that were originally absent from it, such as rape, apartheid, enforced disappearance, torture, and imprisonment or any of a series of acts "committed as part of a widespread or systematic attack directed at any civilian population, with knowledge of the attack." Unlike genocidal crimes, no special or discriminatory intent is required in cases of crimes against humanity, which has given the UN or other international or regional organizations more leeway to respond to mass crimes.
Those who have criticized trials as a failed instrument to prevent massive human rights abuses may, arguably, sometimes have gone too far in the other direction by proposing and praising amnesties-granted to perpetrators in the name of societal reconciliation-as an alternative. It can hardly 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 respond to past violence and to legitimize the rule of law.
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 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, with 121 states being party to it, 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. Irrespective of whether the Court 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 some 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 into 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 mass crimes, such as 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.
Thus, 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 mechanism to avoid trials, as some perpetrators want.
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. The downside of the restorative process in South Africa was, as many victims stressed, the deprivation of the right to seek justice through criminal or even civil prosecution.
Much can be made for the case of combining retributive and restorative justice. Indeed, one of the innovations of the Statute of the International Criminal Court is the series of rights granted to victims. 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. 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 not been without consequence.
I would like to end this talk by thanking all those who have helped make this conference possible by contributing to its organization and by taking part in it. I want to express my special thanks to Mark C. Donfried, the Executive Director of the Institute for Cultural Diplomacy, whose initiatives on the "Convention on the Prevention and Punishment of the Crime of Genocide" and the "Responsibility to Protect doctrine," played an important role in conceiving the agenda of this conference.
I would also like to thank Valur Ingimundarson, professor at the University of Iceland , who not only has helped organize this conference, but has also been a source of knowledge and inspiration for me personally, introducing me to the academic dimension of this important topic.
It should be said that many of the distinguished former politicians taking part in this conference have direct experience in dealing with crisis situations, involving mass atrocities. Their interventions should be especially valuable in understanding the nature of conflicts and in discussing ways to respond to them. I, thus, sincerely hope that our two-day gathering will contribute, in a meaningful way, to questions of how to respond to mass atrocities. For the problems we face-of preventing human rights violations, of documenting abuses, and of ensuring political and legal accountability-also entail a moral and historical responsibility: to remember and to act.
