Pavel Gontšarov: Citing the most recent definition of the concept “crime against humanity” under the Rome Statute – it includes “widespread systematic attacks aimed at any group of people and which can be classified as murder, extermination, enslavement, deportation, torture, rape, sexual slavery, enforced prostitution, forced pregnancy and forced sterilization or other form of sexual violence of comparable gravity etc. The definition overlaps to some extent with other crimes, such as genocide and war crimes, but crimes against humanity are distinguishable from genocide in that they do not require an attempt to destroy a whole or part of a society. And unlike war crimes, crimes against humanity do not necessarily have to be committed in wartime.
The concept has been included in legislation for over half a century. Successful judicial processes in this field have taken place from the early 1980s, the timeframe of the convictions goes back to actions committed during the Second World War.
Crimes against humanity are a jus cogens norm under international law. The main thing here is they are subject to universal, supranational jurisdiction, no matter where the crimes were committed. The earliest example is the attempt of Spanish authorities to bring charges against Chilean dictator Pinochet. All states also have an obligation to support each other in gathering evidence. Also an important fact is that no criminal, not even a head of state, can claim the defence that he was following orders; lastly no one is immune to prosecution.
Today there are many serious political and legal obstacles to prosecution. There are many negative examples of where the international community has been powerless to combat violations. And it can’t be left unsaid that there have been clear successes in international courts. Certainly we should talk about the reasons that many people responsible for crimes against humanity still manage to evade prosecution.
Vuk Jeremić: First I want to stress that I’m not a legal expert and I approach the question more from a political or diplomatic perspective. As the president of the 67th session of the UN General Assembly, I had quite a bit of contact with themes related to crimes against humanity. It was in this period that the first high-level debate took place on international law and reconciliation in crisis areas. I think these discussions were timely promising and open. I also think that it shows that 20 years after the first international ad hoc tribunal and 11 years after the Rome Statute, international law is out of its infancy and ample experience is there to be drawn from by several institutions.
It is a critical and delicate question when it comes to stability of a country or an entire region. Often the issues addressed by international courts are key to stability in the future of a war-torn region. I come from one such region. This is why I believe that international criminal justice should first and foremost be viewed in the context of justice and reconciliation. This is a key ingredient achieving one of the primary goals of the UN, which is to maintain international peace and security. We cannot avoid serious international political debate in this context and the one such as the discussion is very important for the credibility of the context. I hope that one day the criminal justice system will have international reach. The recent events on this topic have pertained mainly to the conflicts in Africa and we have seen how much work is still to be done. I want to emphasize: Don’t underestimate their gut feelings and instincts that come from their history. History has shaped who they are and they have gone through a difficult period in their history. I doubt I have to stress this very much in a place like Estonia. But we have to be patient with the Africans.
Vagn Joensen: I will continue on African issues. The first challenge is jurisdiction. As recognized by the complementarity principle of the Rome Statute, the starting point is that international crimes are prosecuted by states that have territorial jurisdiction. But often they do not do it, because state authorities may have been involved in the commission of the crimes or they don’t have capacity to do so, as was in the case of Rwanda. A number of states have assumed extraterritorial jurisdiction and prosecute such crimes committed outside their territories by persons actually in their territory. Only a few countries have gone beyond that, Spain and Belgium for instance, but have later amended their legislation so that it would not today allow such initiatives. In Spain, you can prosecute crimes where Spanish citizens were the victims, and Belgium only prosecutes cases where the accused is imprisoned in Belgium.
Thus we see why we need international courts. For a court with a UN mandate, jurisdiction is not a problem. It is more of an issue in the case of the ICC. Sometimes, the latter can come into conflict with the jurisdiction of a specific country. Sometimes the UN Security Council plays a decision-making role and as we see in the case of Syria, these discussions are often politicized. If the Security Council lacks consensus, it will presumably not be possible for the plenary session to achieve it.
The other problem we are facing is that we have to draw on state cooperation. When the accused are the leaders in power or are protected by them, the work of the international court is less forthcoming. Sudan is an example – its neighbours are not willing to cooperate as they want to maintain good relations.
The third challenge is related to the post-judicial period. A country’s duty to cooperate with courts operating under UN mandate ends after the proceedings end. No problem arises with the punishment as other member states can assist. Difficulties can arise after imprisonment when it turns out that the person’s family have left a county as refugees and have become citizens of another country.
A fourth challenge is related to the legal basis of international courts. We have the Geneva Convention on war crimes, but there is no convention dealing with crimes against humanity. It’s not a problem for international courts, as they have documents that define criminal acts. But it does impact the capacity of countries to prosecute crimes against humanity. I know there is a draft convention and hopefully it will enter into force sometime in the future.
Cuno Jakob Tarfusser: I’ll treat the issue of the panel in 3 or 4 points. The main question is what can be done to try persons? I would expand this topic not only to crimes against humanity to genocide and war crimes. I would also extend justice to include the preliminary investigation and the ensuing consequences.
Second, I also want to bring out something good. One such thing is the fact that we are gathered here and talking on this subject. Twenty years ago we didn’t even talk about these topics, but now we have institutions. They have many problems, but they are there and it is no longer certain that the people who committed the crimes will escape with impunity.
Third, a question is, what can we accomplish? There are various potential actors: states, courts and civil society. One task of the courts is to give these countries feedback, to explain how to amend and supplement legislation so that we could achieve something in prosecuting crimes against humanity. Courts can change some things internally, but much can be done on the state level. I have been a criminal court expert my whole life and I have seen the inside workings of courts. This has shaped my opinion regarding the ICC that it is too much an international organization not enough a criminal court – that explains why the court is seen as it is from the outside. We are doing too much with compromises, which is typical for international diplomacy, not justice. For me, the greater issue is not what we can do but whether the international community – i.e. all of our 122 member states – wants and is ready to actually achieve something. I find ICC is a superb idea but the countries having built it have started fearing and doubting their accomplishment. They have started to fear that if the ICC works too well, it could deal a blow to some of us. The relationship between the ICC and countries is like the one I have with my smart phone – it’s a good gadget but I use only 20 percent of it. Countries must be bold and must not be afraid of giving away a piece of their sovereignty. This is not currently realistic perhaps but we are moving in the right direction.
Tiina Intelmann: Thank you for including this topic. I often get the question why you are dealing with this very theoretical issue. As we see from this panel, there are people for whom it is a practical issue – millions of people. Jeremic spoke about a debate that took place in the General Assembly. What he didn’t mention is that the debate was so controversial that many of us had to decline our participation. In September, we were in a situation where the African Union was preparing for a special emergency summit to reconsider its relationship with the ICC and at the opening of the UN session there was considerable discussion with the heads of state and government, saying that the work of the ICC was unacceptable to them. In this connection I wrote a letter to the leadership of the African Union and said it would be better if we addressed among the 122 states parties that had joined the Rome Statute. I think this turmoil is part of growing up and is related to the view that everything is easier in theory than in practice. One of the very difficult issues we’ve had to address over the past months is what do you do when you have a sitting head of state who is indicted by the court. And this is what Tarfusser said, is there a willingness on the part of the international community to continue along the path established in Rome. We can’t deny that it is impacted by international relations. I think that we are becoming better aware of all of this now.
Alar Streimann: I basically agree with what the other panellists said. I’d like to start with good news with respect to the legal aspects. I find that we have the legal toolbox to bring culprits to justice. First of all, we have international criminal tribunals for Rwanda and Yugoslavia and they are working. Second, a special court for Sierra Leone tribunal was able to convict on all counts former Liberian leader Charles Taylor. Third, the International Criminal Court. The Rome Statute has been called a cornerstone of modern international legal acts, defining crimes against humanity. This framework needs stability now for the best results. On behalf of our government, I pledge readiness for constructive dialogue.
Now a few words about political aspects. We have the principles of a rule of law, but before that we need enforcement. There is always someone in the international community who is willing to help seek truth and justice. The crucial question is to uphold the rule of law. Sovereignty is also an issue. There is unwillingness to allow foreign experts deal with a matter.
Finally, let’s look at the practical aspect. There are two words to describe it – money and cooperation. There must be sufficient money and effective cooperation. For ICC, fruitful work means funding.
Pavel Gontšarov: During WWII, there were crimes which could be called crimes against humanity but I have been lucky not to handle any such cases. Today every such question is also political. It isn’t just about the legal aspects. My first question is about Syria. We all know that both sides have committed crimes against humanity. No effective measures were taken, though. What could be done in the situation?
Alar Streimann: There are two options to Syria. First, the Syrian authorities submit to the ICC’s jurisdiction. This would be perhaps preferable, as ICC is still largely based on political will for cooperation. The second option would be a UN resolution. That has been done in the case of Sudan and Libya.
Pavel Gontšarov: I address the same question to Jeremic.
Vuk Jeremić: Syria is probably the most drastic humanitarian tragedy of our times. The first task would be to keep more people from dying in Syria, bring the disaster to a halt. I am moderately optimistic, there is a glimpse of hope, something is moving.At the same time, we should consider in everything we do that the consequences on this issue could be huge. In general, international criminal justice works better in post-conflict periods of rebuilding. Who knows, in future Syria agrees to join and this could be negotiated, not this week or next. There’s always the option of the Security Council, and if it has blocked it, there’s an option of going to the General Assembly and use clause 377, general Assembly resolution, which requires support from a two-thirds majority of all member states. It’s very rarely used in the UN, because the permanent members hate this, because it could be used against you tomorrow.
Tiina Intelmann: We have to be very much aware of the limits to the capability of our international system. Syria is a good example: ICC comes under fire as people don’t understand that ICC doesn’t have jurisdiction in this case. There are situations where we don’t have a solution, for accountability or peace, but still we need to be engaged and work toward ending the conflict.
Vagn Joensen: I come straight from the Security Council where I gave my report last week. I can confirm that the first priority of the council members is to stop hostilities. In the peace terms being drafted, prosecution against crimes against humanity will be included. The next issue we’re not sure about is whether there will be an agreement to refer it to the ICC, because the other option is to set up a hybrid tribunal, which is more politically acceptable in the region as the country retains some control.
Pavel Gontšarov: The situation on Sudan was touched upon. A mandate was issued to the ICC to take the acting and sitting president to responsibility. The ICC issued an arrest warrant for Al-Bashir in 2009, but since then the sitting president travels around the world, including in ICC state parties, he has never been arrested. Are ICC measures not working?
Cuno Jakob Tarfusser: It’s not true he’s travelling around so easily or freely, because we are hunting him.
Alar Streimann: It’s not black and white any more. A number of countries are refusing to receive him. We have here two pieces of international law that are to a certain extent conflicting and overlapping. The Vienna Convention grants very specific privileges to acting heads of state, while the Rome Statute is recent and needs to jus cogens, universally accepted. We need perhaps also more information on the atrocities in Sudan to be known publicly in many countries, so I am still optimistic.
Cuno Jakob Tarfusser: I wanted to add that al-Bashir is not travelling around the world. We remind ICC members to which he is travelling that it is their obligation to arrest him and sometimes they tell him not to come. In other cases, Al-Bashir has evaded capture very narrowly. Many countries do not allow him on to their territory.
Tiina Intelmann: Nobody has a magic formula or solution what to do when a state refuses to cooperate. But naturally every time we find out that Al-Bashir plans to travel, we contact the destination country and ask them whether they understand they are under obligation to arrest the person. It is my prerogative to go to the head of the UN Security Council apprising him or her of the situation. Enforcement hasn’t happened yet but there is a whole political activity going on and people who are openly defying the court find themselves in an uncomfortable situation, unable to travel and trapped in their own country.
Vuk Jeremić: I agree that nothing very effective can be done. I believe it’s the responsibility of the Security Council to apply political pressure in situations like this.
Vagn Joensen: Al-Bashir was invited to Kenya two years ago but then the ICC filed a case and obtained a court order for arrest, so he is being kept to his country. At the same time, we have plenty examples where states haven’t cooperated. The Security Council is the political body that balances political against legal interests and thus there may not always be sufficient pressure for calling an ICC member state to order.
Tiina Intelmann: Being the president of the ICC assembly, I am constantly engaged in dialogue. Concerning the visits by President Al-Bashir, he came to an African Union meeting in Nigeria where no invitations are issued, so we have to be aware of these realities that develop around meetings of regional organizations.
Cuno Jakob Tarfusser: We are aware that member states are in complicated situations, and thus we did not censure Nigeria for disregarding the Rome Statute.
Pavel Gontšarov: A last question – I know that Serbia is in favour of bringing convicted persons to Serbia to serve sentences at home. How would such a step influence process of reconciliation in a post-conflict region?
Vuk Jeremić: I think that it would help to supports the process if convicted people serve sentences in homeland countries of their choice. But I am not optimistic that it’s going to happen because it’s so terribly politicized. It also depends on public perception.