|
|
|
In-Depth:
Justice for a Lawless World? Rights and reconciliation in a new era of international law
|
 Download this in-depth report
Part I 6.36 MB
Part II 2.40 MB
- Professor Noam Chomsky
- ICC Chief Prosecutor Moreno Ocampo
- Samantha Power, Professor of Practice in Human Rights Policy
- Juan Mendez ,President of the International Center for Transitional Justice
- Justice Geoffrey Robertson Q.C.
- Dr Fanie du Toit, Programme Director for Educating for Reconciliation at the Institute for Justice and Reconciliation in South Africa
- Abdullah An-Na`im, Ph.D, Charles Howard Candler Professor of Law at Emory University, Atlanta, GA, USA
- Augustin Nkusi, the Director of the Legal Support Unit, National Service of Gacaca Jurisdictions, Rwanda
- Benjamin Gumpert, counsel representing Justin Mugenzi, who is currently on trial at the International Criminal Tribunal for Rwanda
- Hanny Megally, Director, Middle East and North Africa Program, International Center for Transitional Justice (ICTJ)
- Paul van Zyl, Country Programme Director at the International Center for Transitional Justice (ICTJ)
- Johnston Busingye, Secretary General of the Ministry of Justice in Rwanda
- Dennis McNamara (Special Adviser on Internal Displacement to the UN’s Emergency Relief Co-ordinator and Director of the OCHA Inter-agency Internal Displacement Division) on the rule of law
IRIN welcomes feedback. Send your messages to feedback. |
|
GLOBAL: Interview with Juan Mendez , President of the International Center for Transitional Justice
|
Juan Mendez. |
|
Mr Mendez has been the executive director of the Inter-American Institute of Human Rights in Costa Rica, and a member of the Inter-American Commission on Human Rights of the Organization of American States. Mr. Mendez was appointed the United Nations’ special adviser on the prevention of genocide. As a result of his involvement in representing political prisoners, the Argentinean military dictatorship arrested him and subjected him to torture and administrative detention for more than a year. During this time, Amnesty International adopted him as a "Prisoner of Conscience."
QUESTION: Justice Geoffrey Robertson, QC in his book “Crimes Against Humanity” said, referring to the way the ICC’s powers are triggered, that “the politicians and diplomats of the superpowers remain in the driving seat”. Do you think that is a fair assessment of the ICC?
ANSWER: I think it is fair in the sense that the ICC’s jurisdiction is dependent on ratification and acceptance by states. In a specific scenario on referrals by the Security Council, the states that have championed the Treaty of Rome definitely have a commanding seat. But I do not think that it is fair if it is understood in the sense that the ICC is less than an independent court or an independent office of the prosecutor.
Mr Robertson is talking about a partial aspect of the court’s jurisdiction. If the whole jurisdiction of the court were to come out of the Security Council’s power, which was the US position during the discussions about the ICC, then I think it would be a completely non-independent court and therefore not worth supporting.
The Security Council has to have a judicial “tool” for situations in which accountability is an important part of peace and security. It is important that it does so with an independent court that is permanent and already set up rather than create ad hoc courts every time a need arises.
Q: Would you say that the fact that it is to an extent “political” can lead to a negative perception of it? The Security Council will only approve an investigation in relation to a state that is not an ally.
A: I do not think that is the case, because the jurisdiction that would arise out of a Security Council referral is only partial because the court will be operating in cases where the Security Council is not involved. For example, the investigations in DRC, the indictments in Northern Uganda and investigations in Cote d’Ivoire.
The Security Concil is not equal, but that is true in general, not specifically with respect to referrals to the ICC.
Q: But in the examples you mention, the state itself has said that the ICC can operate there. As such, those are “friendly” acts by the ICC not “hostile” ones.
A: Yes but the friendly act does not deprive the ICC of jurisdiction to investigate even crimes committed by the state. What is a friendly act is the concession of jurisdiction, the invitation for the ICC to investigate. However, both the court and prosecutor are independent. They will investigate the actions of all actors in the conflict.
Q: The Acholi community in Northern Uganda have turned around the slogan “No peace without justice” to say “No justice without peace”. Do you think the ICC is fairly criticised for exacerbating the problems of Northern Uganda?
A: No, I think that is an unfair criticism. I would understand where people thought peace was at hand, just as the ICC was about to interject. But that was not the case. The prosecutor even exercised caution and took time to let peace negotiations develop. He only sought indictments when that latest round of negotiations had already foundered for reasons completely unrelated to the ICC.
When you have spoilers like the five people who have been indicted who are really not interested in peace, at some point it is important to remove them from the negotiating table so you can bargain with people who are more interested in peace. This removal by the fact that they are now under indictment may initially be seen as an obstacle to peace; but further down the road it may be exactly what is needed to get a stable peace in Northern Uganda.
Q: Do you think a truth commission and criminal prosecution can co-exist meaningfully with the same people as objects of investigation?
A: Yes, I think they can, and should, work together harmoniously. However, I do not disregard the fact that in actual operation they do have complications. The relationship between the two is never easy. Courts will never be able to investigate every episode and therefore there will always be a sense of inconclusiveness about justice and dissatisfaction on the part of victims of human rights violations that their case was not properly aired in a court.
So it is important that the courts be complemented by an investigation that is less formal and addresses a wider range of issues, patterns and episodes. You have a sense of more comprehensiveness. That said, I would never support a truth commission as a substitute for criminal prosecution. A truth commission and court working in tandem are important.
There is also a problem with sequencing. One of the issues that might have been a cause of friction in Sierra Leone is that they were both working in the same timeframe and under tight time constraints.
In Argentina, the truth commission operated at the first instance and immediately thereafter, the courts started exercising jurisdiction over more or less the same episodes. That was a lot smoother because the truth commission had to avoid making judgments that would impede prosecutions down the road. At the same time, they amassed evidence that was very useful for the prosecution.
Q: Is that a violation of people’s rights for those who are later going to be subject to prosecution?
A: You have to take precautions at the time that you are conducting the non-judicial truth exploration. That is something that can be arranged. You obviously cannot ask people to say what they know and allow them to incriminate themeselves and then turn around and prosecute them. But you can invite them to say what they can say on the clear understanding that if evidence is found down the road they will be prosecuted. Even in the case of South Africa where they made a concerted effort to ascertain the truth from the perpetrators themselves, the overwhelming majority of the evidence came from the victims not from the perpetrators. Therefore there is no serious due process violation if you are invited to testify and you do so knowing what the consequences may be. Even where perpetrators do not testify, there are serious questions about tampering with evidence and whether the evidence has been too widely repeated to be meaningful when brought to trial. But that can be safeguarded so that prosecutions can proceed later and be completely fair.
Q: Would you describe yourself as in favour of mandatory retribution, without qualification?
A: I think both aspects, truth-telling and prosecutions of perpetrators are obligations of the state in transitional justice and both have to be conducted in good faith and to the greatest extent possible. So what I reject is the notion that the state can say it will not prosecute anyone but it will give the victims a report on what happened. That is a travesty because it tries to exchange the demands for justice for a truth telling exercise that becomes a substitute for justice. There are many examples of countries trying to get away from their obligations to prosecute by instituting truth telling mechanisms. The most successful truth-telling mechanisms have not been predicated on impunity for the perpetrators but rather have been a step in the direction of justice.
Most of the information that is gathered comes from truth commissions or from serious investigations of documents in the power of the state or physical evidence. Many of the truth commissions have found mass graves that were previously unknown or have found concentration camps.
Q: The Supreme Court in Argentina has declared the Full Stop Law and Due Obedience Law unconstitutional, allowing cases to be brought in connection with the abuses perpetrated under the military regime. As a victim of detention and torture, will you personally be bringing a case?
A: No. My case compared to the thousands of other cases is relatively minor. I survived. I was not one of the disappeared. There is not a need for me to contribute to a societal exploration for the truth. There are many more serious cases. Also, it is not a question of flooding the courts.
Q: Do you think amnesties have a role?
A: Yes, as long as they are carefully drawn. The problem is blanket amnesties that have the effect of not permitting the investigation or the prosecution of anybody under any circumstance. Those are the ones that international law prohibits.
There are two kinds of amnesty that might pass muster under international law. One is the amnesty that is mandated by the laws of war, by the protocol to the Geneva Conventions. This says that at the end of an internal conflict parties should give each other a broad and generous amnesty. It has been authoritatively interpreted to mean amnesty for the crime of armed rising against the state: the crime of sedition or rebellion. It specifically does not include crimes that are conducted in war that constitute grave breaches to laws of war, for example, killing an enemy that has been rendered hors de combat or firing against civilians etc. Those crimes cannot be part of the amnesty. But this type of amnesty is important for persuading a rebel army to lay down their arms and participate in the political process.
The other kind is the conditional amnesty. There the law is more complicated. There have not been any international law decisions saying that conditional amnesty, for example conditioned on making reparations or on confessing, would be legal under international law. But I think that under certain circumstances, amnesties that are conditioned on conduct by the perpetrator could in principle be legal under international law. I have in mind the South African case, at least as conceived by the statute. As long as it does not go so far as to let someone off the hook who committed incredible atrocities and has made only a token gesture towards reconciliation.
If I were sitting in an international court, hypothetically, I would say that international law would have to give a lot of deference to the amnesty awarded by South Africa, precisely because it is not a blanket amnesty.
It is a different question whether a specific application of that amnesty would also pass muster. But I do not think there would be a rejection of it in entirety as there was of the blanket amnesties in South America.
Q: What do you think of the Iraqi Special Tribunal (IST)?
A: We are one of only two or three international organisations that have been awarded observer status. We think that the tribunal had some weaknesses from the start in the way it was set up and the fact that it retains the death penalty. However we do not want to take an absolutist position and say that it is illegal or illegitimate. We think that depending on how the trial is conducted it could still, on the whole, pass the test of legitimacy and conduct a fair trial.
However, the longer the trial goes on, the harder it is to make a positive judgment. In other circumstances, the fact that two or three defence lawyers have been killed even before the trial started would bring us to make a more definitive judgment. But the circumstances in Iraq require that we withhold judgment until we see the result.
Q: Do you think a hybrid tribunal, possibly held outside Iraq, would have been a better idea?
A: A hybrid tribunal would have been a better policy choice by both Iraqis and the occupation forces. It would have eliminated some of the infirmities I am talking about. Essentially the court was set up by an occupation force which is already questionable under the laws of war. It was then legitimated by the governing body later, but it would have been better to wait for the Iraqi Governing Council to create it from scratch.
The circumstances in Iraq are particular and there are the added difficulties of trying to conduct the trial of a former head of state in the middle of a conflict that seems to get worse day by day. The original suggestion by many human rights organisations that a hybrid court be set up that would exercise Iraqi jurisdiction but with major support from the international community outside Iraq would have been a better choice.
Q: So you would not agree with Professor David Crane’s assessment that “Despite my disdain for the way the IST was created outside of international norms by the United States, I must say I am impressed with the way the judges are carefully taking Iraqi law, along with various principles of international law, and shaping it for their use to ensure that justice is done from an Iraqi point of view”?
A: That depends on when he said that. I would have endorsed that sentiment when the first judge was still in charge. But a court which changes judges during the trial already requires close scrutiny. It is not fatal, but it should raise concerns. Just as concern was raised by attacks on the defence lawyers.
The replacement of the judge was complicated by the de-Ba’athification process. That was an attack on the independence of the judiciary that should raise concerns.
We have to wait till the end to judge whether the trial has lived up to international standards. If there are problems which do not fatally affect the whole exercise, they can still be corrected. We are observing the trial very closely and will produce our assessment at the end.
Q: Do you think de-Ba’athification is an acceptable form of vetting?
A: No. I think it makes a mockery of what vetting should be all about. De-Ba’athification is presented as the same thing as de-Nazification in post-war Germany. The way it operates links whole categories of people in a form of collective guilt.
We are in favour of vetting, but this is not the way it should operate. We are in favour of people who participated in abuses being excluded from participating in a reconstituted set of democratic institutions,but it cannot be done as a witch hunt, chasing after people for the sole “crime” of having had to sign a membership card or the like.
The way de-Ba’athification is being used is as a tool for a power struggle within the Iraqi government.
[ENDS]
|
|
|
|
|