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Q&A WITH JIM CLANCY
New Doubts About U.N. International Court
Aired April 30, 2002 - 15:30:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)
KOFI ANNAN, U.N. SECT. GEN.: Those who commit war crimes, genocide, or other crimes against humanity, will no longer be beyond the reach of justice.
JIM CLANCY, CNN ANCHOR (voice-over): The world's first permanent international court, designed to bring to justice those the international community considers criminal.
But after signing the treaty, the United States had second thoughts.
UNIDENTIFIED MALE: We believe that it is flawed, and that there are insufficient safeguards in place to prevent a political prosecution rather than a prosecution based on law.
CLANCY: Could it be that possible targets of the court would hit a little too close to home?
HENRY KISSINGER, FMR. U.S. SECT. OF STATE: It is impossible for the participants of that period to recall every cable that occurred.
CLANCY: On this edition of Q&A, the international court -- seeking justice for all.
(END VIDEO CLIP)
(on camera): Hello and welcome once again to Q&A. I'm Jim Clancy.
Tonight, we're going to examine the future of the International Criminal Court, an institution that many hope will serve as a deterrent to war crimes and hold leaders accountable for their actions.
Some warn that while the court could uphold the highest standards of human conscience, it is also vulnerable to abuse.
We're going to hear from many sides on the issue, beginning with Sergey Karev. He's the deputy permanent representative of the Russian mission to the United Nations.
Mr. Karev, thank you so much for being with us.
Let me begin by asking you, many people have noted, they have said that Russia is reluctant, is concerned, about endorsement of the International Criminal Court. What is Moscow's view of this court?
SERGEY KAREV, RUSSIAN DEP. REP. TO U.N.: I think that is not correct, that we are reluctant about International Criminal Court.
We were among those who were very active in working on the statues of the International Criminal Court. We were among those who were initiating the bringing of the crime of aggression to the statue of the court.
We signed the court, the statute of the court, and during quite recent ceremony, about entering the force of this statue, our minister of foreign affairs released a statement in which we welcome the force of their status.
CLANCY: When will it be submitted for approval, for endorsement, by the Duma (ph)?
KAREV: Well, that's a good question. Quite frankly, I don't know when it will be done, because in my view, for the time being, what is done in Moscow is the process of consideration of this statute. It's a very complicated legal instrument, and if you ratify it, you have to do a lot of homework, I would say, in changing your legislation.
So now it's inter-ministerial work which is going on in Moscow. But I hope that the answer will be given, maybe, before the end of this year.
CLANCY: There are many people, some of them are in Russia, who feel that this court could be used or misused for political purposes. Among the topics that have come up have been the Russian activities, the Russian military offensive at times in Chechnya. People saying excesses there. Russian military men should be brought before the court, unless Russia agrees to do so itself.
Is that a building concern?
KAREV: I would say that it's not a very big concern, because first of all, after the entering into force of this statue, the court can consider only the cases which will be after the statute, of course, not before. That's one element.
The second element is that each state may make a reservation for seven years for war crimes, not to be considered by the court. So as I know, one country has already done it. So it's another reservation, another possibility for those who are concerned. But I don't think that it's a very big concern for our state.
CLANCY: Sergey, I think that the real question that someone would have to ask is, do you think that -- has your government given any orders, made any chances, warning, perhaps, military officers in the field, that now the court is in session, a court is in existence, that could deal with these kinds of things -- change your behavior, watch what you do?
KAREV: I would say that this kind of warning has been already said several times before to our military people in Chechnya. And you know that the behavior of our military forces has changed in Chechnya has changed dramatically in the last years.
So I don't think that the entering into force of the court will change a lot at this time.
CLANCY: Mr. Karev, when we look at the overall power of this court, what do you think it is? Do you think it will make world leaders sit up and take notice, take caution for their actions? Will it be a deterrent?
KAREV: Well, I think that, of course, world leaders will be more cautious after the entering into force of the statue and the beginning of the work of the court.
But on the other hand, I don't think that it will change so much dramatically the existing situation, no.
CLANCY: What will be the advantage for countries like Russia or the United States, major European powers?
KAREV: It's rule of law, which will be more enforced internationally, so for us it is quite important.
CLANCY: All right. There we have Sergey Karev, the deputy permanent representative of the Russian mission to the United Nations.
Our thanks to you, sir, for being with us.
KAREV: Thank you.
CLANCY: All right, now someone who has been promoting the court, really pushing for it, is Richard Dicker. He's director of the International Justice Program at Human Rights Watch.
He's joining us now from New York.
Thanks so much for being with us.
When we saw this court come into existence, some people hailed it, saying that this was a new day, a new day for mankind. Was that an overestimation, really of what's happening?
RICHARD DICKER, HUMAN RIGHTS WATCH: I don't think so, Jim.
I think this court, which will be the first permanent institution that can try individuals accused of war crimes, crimes against humanity and genocide, this court has the potential to be the most important human rights institution created in 50 years.
We'll have to see how it works out, but the potential is enormous.
CLANCY: What happens? We already see a United States administration that signed it -- the Clinton administration, too timid to put it to the Congress, fearing it would be turned back. The Bush administration now saying that it has problems with it, may not sign it. Perhaps...
DICKER: Jim, I'm losing the audio on and off. I will respond to what I thought you said.
President Clinton did sign the treaty, and that was an important step.
The Bush administration has expressed hostility towards this treaty. We hope that the Bush administration will not do anything so shortsighted as to withdraw United States signature from this treaty, exactly for the reasons that the Russian deputy permanent representative just said.
This court will strengthen the rule of law worldwide, strengthen human rights, and I think be consistent with even United States foreign policy objectives.
CLANCY: Are you concerned, as some are in the United States, that perhaps soldiers sent on missions, peacekeeping missions abroad, trying to do the right thing, make a mistake and wind up before the court?
DICKER: I'm not worried about that, Jim. I was there every day of the negotiations of this treaty in Rome, and I can tell you as a matter of fact, this court will not be looking at the acts of low-level individual soldiers who make mistakes.
This court will only be looking at the likes of the Augosto Penuche's (ph), the Foday Sankoh's of Sierra Leone, the Saddam Hussein's of Iraq, the Guatemalan generals who've slaughtered hundreds and thousands of native Guatemalan people in the 70's and 80's.
That's who this court will focus on. Not peacekeeping troops in the field, even if they do make mistakes.
CLANCY: Let's make very clear here, they can prosecute crimes against humanity, they can prosecute genocide and war crimes. There is also a mechanism that means that if you've signed it, you are automatically subject to this.
But very importantly, only if a citizen of a country in question refuses to bring them to justice or is unable to bring them to justice.
Does this mean this court will become...
DICKER: Jim, excuse me again. I've lost the audio.
But I think the important point here is that this will be a court of last resort. That means the ICC will only play a role when the national authorities are trying to cover-up and shield individuals from criminal responsibility.
This is a court whose whole focus is to encourage national authorities to do their job. It's only in the cases of the Guatemala's, the Iraq's, the Sierra Leone's, when this court will have a role to play.
I don't think those states that try to uphold the rule of law have anything to fear from this new institution.
CLANCY: What do you think will be the measure of the court's success?
DICKER: I think there will be several things.
I think this court will encourage and embolden and pressure national courts to do the job they should be doing. So to see more vigorous prosecutions of war crimes and crimes against humanity on the national level will be one indication of success.
CLANCY: All right. Richard Dicker, our thanks to you for being with us. Richard Dicker, of course, with Human Rights Watch.
We're going to take a short break. When we come back, a question that troubles some: could the leaders of the major powers, in one way or another, find themselves in that court?
(COMMERCIAL BREAK)
CLANCY: Welcome back to Q&A.
The United States has been dragging its feet in joining the International Court. One reason, it says, is that it might bring politically motivated anti-American cases before it.
Henry Kissinger, the former United States secretary of state was sought by a Spanish judge to answer questions about what he knew about crimes committed during military dictatorships in several South American countries in the 1970's.
Others are seeking to prosecute him for United States military action in Vietnam, Cambodia and Laos.
Should politicians of major world powers be held liable for what happened during their administrations?
To discuss that, from Washington, Ruth Wedgewood, Yale Law School professor and a member of the Council on Foreign Relations.
And also from London, human rights activist Peter Tatchell. He applied for an arrest warrant against Henry Kissinger and tried to perform two citizen's arrests on Zimbabwean President Robert Mugabe.
Ruth Wedgewood, let me begin with you and just ask you the bottom line question. Everybody is saying no, a leader couldn't end up in court. But really, could they?
RUTH WEDGEWOOD, YALE LAW SCHOOL: Well, one of the concerns about the ICC is that they don't just cover massacres, this new independent court, but also could potentially cover some rather tricky questions of good-faith military doctrine. If you can bomb a dual-use electrical grid in taking out anti-aircraft. If you can be forward leaning when you're expecting to be shot at.
And I think the concern is that though people may think of it only in moral terms, there are a lot of controversies on how you fight a way.
Second point is that what counts as aggression? The court is going to try to assert authority over aggression, come seven years from now, and one persons humanitarian intervention, one persons preemptive strike against weapons of mass destruction, may be the court's aggression.
So there is some concern that there's really no easy boundary that -- it's circumscribed around the court's jurisdiction.
CLANCY: Peter Tatchell, even with the arrival of the International Criminal Court, cases like the one that you've been pressing against Henry Kissinger wouldn't be heard, because they're simply not going to tackle anything in the past. They're dealing with the present forward.
Still, you are determined that some wrongs have never been brought to justice.
PETER TATCHELL, HUMAN RIGHTS ACTIVIST: Well, the fact is that not only Britain, but many other countries, including the United States, have ratified the Geneva conventions, which make the indiscriminant bombing of area where there are civilian populations, killing or endangering those civilians, a war crime. And I simply sought to have the law enforced equally, fairly and without favor.
If I go out from these studios and kill someone on the street, the force of law will come down on me like a ton of bricks.
When Henry Kissinger oversaw United States policy in Indochina, his policies of indiscriminant bombing resulted in 3 million Cambodians, Laotians and Vietnamese being either killed, injured or made homeless. And under the Geneva conventions, which is enshrined into British law, that is a war crime, and therefore I believe he should stand trial.
CLANCY: Ruth Wedgewood, that is an interpretation, and many countries have signed the Geneva conventions, and we've heard from the ICRC in Geneva that many countries simply don't stand up for those conventions that they signed.
WEDGEWOOD: Well, many countries observe the conventions through the very important measure of training, and indoctrination of their troops, prevention rather than retribution after the fact.
Technically, Geneva doesn't apply in fact to bombing. It deals with protective classes of civilians in occupied territories and prisoners of war -- it's the so-called Hague law that applies there.
But I think the conundrum you see is that if the permanent court, the new Rome statue, had proposed to go backwards in time, 35 years, 40 years, no country would have signed it or ratified it. So this notion that we're all going to be good to the Nth degree by everybody's lives in the future, I think, is belied by the reluctance that most country's have to go back in the past.
CLANCY: Peter Tatchell, you've been described as something of an extremist in seeking out people like Robert Mugabe. You wanted to arrest him twice. And at one point last year in Brussels, I believe it was, you actually tried to make a citizen's arrest and you were turned back.
What happened? And what do you think it did? Did it change anything, to take that action?
TATCHELL: Well, I wasn't just turned back. I was knocked unconscious by his thugs and minders, in full view of TV cameras. And that I think very dramatically highlighted the brutality of his regime, which of course, was my intention.
He went to Brussels with the aim of concluding an aid and trade agreement. It was all about making money. And my actions made sure that human rights, in particular his abuse of human rights, became the dominant issue.
So although I didn't succeed, I reinforced to him, and I hope to other human rights abusers, that they are being watched and pursued, and that these international human rights conventions, many of which date back to the 1940's and 50's, they're not just simply pretty pieces of paper. They're meant to be enforced. Countries have pledged to uphold them. They have ratified them. The sad fact is that no countries are enforcing them, and I simply want to create a momentum that these laws should apply, they should be enforced, and that nobody, no matter how high a state official, nobody is above the law.
CLANCY: Ruth Wedgewood, if the major powers don't come out and support this criminal court, will it be left to individuals, like Peter, to get involved, to raise the controversial issues?
WEDGEWOOD: Well, I think the controversial issues, or rather the observance of the norms of war, is something that's in everybody's mind when they fight a war.
In our intra-alliance politics, with the British, the Germans, the French, for example, we have constant discussions on what's the responsible way to conduct an air war. So this is not norms that aren't thought about or actualized.
I think the concern is that the ideas of criminal negligence that go under the heading of command responsibility have no easy boundary, and I think there is always a temptation to dramatize and try to criminalize things that may be good-faith differences of view.
Now, Mugabe is a terrible guy. I quite agree. And one can have what view one likes of the Vietnam War. But I do think it's a mistake to suppose that in taking responsible action against major offenders that you can do so outside of a very real world of politics that both estimates the necessity of democratic transitions and amnesties and the felt necessities of certain kinds of conflicts.
CLANCY: Peter, what's changing? Now, you were active in the anti- Vietnam War protests. But what's changing, perhaps, today, about holding individuals accountable? And it seems that there is a shift in how people view military actions taken by the major power versus small guerrilla groups.
TATCHELL: I think there is a growing recognition that if Western countries seek to uphold the principles of democracy and human rights, then if they go to war, they have to abide by those principles in the conduct of that war.
You can't tear up human rights in the name of defending human rights.
And I think that more and more people, right across the world, but particularly in many Western countries, who look back with some regret and remorse at the way in which the big Western powers have traditionally conducted their affairs they do realize that a new era, a new way of behaving, has to come about.
We cannot trample of democracy and human rights in the name of defending them. And that is why I think although what happened in Vietnam was a long time ago, we can't just simply say it was in the past.
We are still pursuing old Nazis who persecuted and tormented Jewish and gay people all those years ago. We're not saying in their case this happened a long time ago, therefore it's excusable. We're saying that the Nuremberg principles, which are that high state officials can be accountable for crimes against humanity and war crimes, that that should apply equally today.
CLANCY: Is this going to get into, Ruth, into domestic politics? It is no secret that many Arab states have not signed on to the International Criminal Court. Today, I think it was Amnesty International or Human Rights Watch, that was lambasting the Saudi judicial system for secret courts and death penalties in bizarre cases. Is this going to get into that?
TATCHELL: Absolutely.
WEDGEWOOD: Well, I think one of the concerns about the court is how they would apply their doctrine to national court systems.
The statement in the court statute is that the ICC, this new court, will come into play only if national courts are unwilling or unable, genuinely, to address something themselves.
And that could mean anything. It could mean that a jurisdictional problem is seen as being unable, unwilling -- good-faith differences of military doctrine, unable, unwilling.
The concern is, how do you carve out the scope of a massacre court without turning it into a political football for how you fight, say, the Kosovo War or the war in Afghanistan, or old right-left battles from the 50's, 60's and 70's.
I do think that one cautionary note was struck by the World Court, which heard a complaint recently by the Congo, complaining about a Belgian magistrate who tried to arrest their foreign minister. And the ICJ, the World Court, said that the sitting foreign ministers is important to the conduct of diplomacy and Judge Giomme (ph), the French president of the ICJ, also noted that there may well be some limits to the use of so-called universal jurisdiction by national courts.
And I do think that people have become over enthusiastic, extending the Penuche (ph) case imprudently, too fast, not noting that Penuche was based upon treaty law, and not noting the ambivalent reaction of Britain itself to the Penuche matter.
CLANCY: There's a legal brief on what was going on with Penuche.
But perhaps, Peter, a larger question: is this court dealing with what people do -- how about what they don't do? Don't come to the aid of Rwanda when genocide is being carried out?
TATCHELL: Well, the International Criminal Court statutes do not only cover acts of commission, but in certain, very limited circumstances, acts of omission.
In other words, if a high state official acquiesces in acts of genocide, torture, war crimes or crimes against humanity, they can be held liable.
Certainly in the case of the attempt by me to bring a legal prosecution against Robert Mugabe, it was not because he had personally authorized the torture of the two journalists in question. It was because he was complicit. He apparently knew that they were being tortured. He took no steps to stop their torture. And he seemed to retrospectively publicly endorse it.
Now, under the U.N. Torture convention, which of course predates the International Criminal Court by many years, those acts are crimes.
CLANCY: All right. Ruth Wedgewood, the final word. I've got about half a minute. What does this court mean for humanity?
WEDGEWOOD: Well, I think it will be important in thinking through, hopefully responsibly, the norms of how you fight a war and protect innocent populations.
My concern is that it doesn't have enough cognizance of the need for responsible military input. It doesn't have any military element in it. It should not do aggression. And frankly, it must not assert third-party jurisdiction over countries that have declined to ratify it. That would be very imprudent for the court as much as for the development of the law.
CLANCY: All right, Ruth Wedgewood and Peter Tatchell, our thanks to you and our guests, for being with us this day on Q&A.
Well, the International Criminal Court, only beginning to come into existence. Many of the points you heard here are precisely the measure by which the court is going to be judged a success or failure.
That's Q&A for this day. The news continues now on CNN.
END
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