26oct04

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War Crimes in the 21st Century
By Pierre-Richard Prosper
U.S. Ambassador-at-Large for War Crimes Issues.

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President Benton, Dean Starr, distinguished guests, members of the faculty and student body, thank you. It is a pleasure for me to be here, and I am grateful to Pepperdine for the opportunity to speak today. I want to thank today’s moderator, Professor Lee Boyd for organizing this panel, and Rajika Shah for helping to coordinate this event.

It is great to return home to Pepperdine, and to see so many friends, Vice Chancellor Ron Phillips, and many others who have been critical to my development as a professional. I am honored to be here with an impressive group of panelists. I look forward to a thoughtful and maybe lively discussion. I am delighted to be here at the new Drescher facilities. It is a wonderful place to talk about serious topics and to shape the public discourse.

Let me begin by saying that it is a joy to be back here at Pepperdine, a university that has greatly influenced my life. This university has a unique influence on those who come here through the fulfillment of its motto of "strengthening lives for purpose, service, and leadership."

I am pleased to take part in the inaugural series of "Lives in the Law." I think that this is an important series because it will allow us to examine the role that lawyers and all of us can play to help better society. For me, this series is an opportunity to share knowledge that will challenge you, the student, to pursue a cause greater than yourself. Our topic today is: "War Crimes in the 21st Century." As you can imagine, we have a lot to talk about. It is my hope that you will receive greater insights as I cover some of the more important areas and discuss what we are doing to address these problems.

Today, we find ourselves living in a time when humanity is under assault. There are cultures of hate that have killed millions of innocent men, women and children. Greed, lust for power, and ideological extremism are driving conflicts and are destroying fabrics of civilization. We only need to look to several hotspots around the world to see that there are those who would not hesitate to destroy entire peoples for demented goals. In taking on these challenges, steadfast leadership is required and vision is needed to overcome problems that may seem insurmountable. But unfortunately even when the cause is just, leadership in the world is often resisted because of politics or because the action needed is deemed unpopular or too difficult.

I believe that we are at a pivotal point in the history of the world. We are at a point where we must either confront these threats to humanity or concede. Act or turn a blind eye. As an administration, we recognize this responsibility. President Bush understands these historic times and has chosen to fulfill this responsibility. I am proud of the record of the United States and the steps this administration has taken to shape the justice landscape. We are committed to ending atrocities and pursuing accountability, and are leading the world in these efforts.

Accomplishments.

When asked to take this job over three years ago the world was a different place. Indicted war criminals moved more freely, states took their responsibility to hold perpetrators accountable less seriously, and tyrannical regimes oppressed and abused their citizens. In the beginning of 2001, several dozens of persons indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) were at large including Slobodan Milosevic and the infamous "Vukovar Three." Over two dozen persons indicted by the International Criminal Tribunal for Rwanda (ICTR) were fugitives and were fueling the conflict in the Democratic Republic of the Congo, where millions have lost their lives since 1998. Serbia, Croatia, and Bosnia were not pursuing domestic justice for the actions of their officials and citizens during the Balkans conflicts. In 2001, the ICTY and ICTR did not have a strategy to reach a successful completion and their budgets ballooned to a combined total of $798 million dollars – which has now exceeded $2 billion.

Sierra Leone was emerging from conflict. The idea of a Special Court for Sierra Leone – to detain and prosecute those who had brutalized the population through widespread rape, hacked off countless limbs of men, women and children, and perpetrated other abuses – was one only on paper. Saddam Hussein ignored the rule of law with brutal results, and Charles Taylor as President of Liberia continued to destabilize the West African region. Terrorists, al Qaida, moved freely. In Afghanistan, the Taliban regime terrorized its population, killed civilians, subjected women to second or third class status, and sponsored terrorists.

Today we have a dramatically different and better picture due to our leadership. Because of U.S. leadership and policies, 52 ICTY indictees, including former president Slobodan Milosevic and the infamous "Vukovar Three," have gone to The Hague in the past 3˝ years – more than any other period. Twenty-one leaders of the Rwanda genocide, including the former army Chief-of-Staff, have been apprehended and transferred to the ICTR, bringing the total number of indictees rendered to both tribunals to a record 73. In the Balkans, domestic trials of war criminals are now taking place with international support and backing. The two ad hoc tribunals are more efficient, have controlled their budgets, have increased the pace of their work, and now have completion strategies with the aim of ending initial trials by 2008 and all appeals by 2010.

The Special Court for Sierra Leone, is now in existence and has started trials that will help the population heal. In Liberia, U.S. troops were deployed. Working with the Economic Community of West African States (ECOWAS), we have brought peace. Charles Taylor is out of power, faces a war crimes indictment before the Special Court, and we are working to bring him to justice soon. The regime of Saddam Hussein is no more, a point I will discuss later. And 75% of known al Qaida leadership has been brought to justice.

In Afghanistan the regime of the Taliban has fallen. And the first direct presidential election in Afghanistan's history was held on October 9, where 18 presidential candidates, including one female candidate, ran. There, more than 10 million Afghans registered to vote. Forty-one percent of registered voters were women. The dramatic nature of this can be seen in a picture I saw of a woman covered by a burkha dropping her ballot into the box. The only part of her that was visible were her hands and her vote. Others traveled far, waded through icy rivers, stood in long lines at polling stations, and overcame fears of attacks. Democracy has arrived in Afghanistan and its citizens have tasted freedom.

While throughout the world more work needs to be done, we have begun to change the course of events for the better. The United States has demonstrated leadership even when difficult and even when unpopular. Allow me at this time to focus on three areas which are current and important: Sudan, Iraq, and the war on terror.

Sudan.

Sudan has long been a problem state. It has been engulfed in a brutal North-South civil war since 1983, and for years, the Government of Sudan engaged in a policy to destroy the predominately Christian and animist south. Death and destruction reached staggering proportions. Credible estimates from human rights organizations suggest that two million people have perished, four million have been internally displaced, and nearly 400,000 have been forced to live in neighboring countries as refugees. While there is improvement in the North-South conflict, with a peace agreement reached on June 5, there continues to be despair.

Darfur Atrocities.

Within the last year the Government of Sudan has repeated its pattern of atrocities that we have seen in the North-South conflict in the western region of Darfur. Sudan and its proxies, the Arab militias known as the Jingaweit, have carried out a scorched-earth policy toward the African civilian population. The Jingaweit and Sudanese military forces have murdered, raped and assaulted non-Arab individuals. They have pillaged and destroyed villages, foodstuffs, and other means of survival. The government has obstructed needed humanitarian aid and food from reaching affected populations, thereby leading to further deaths and suffering. And despite having been put on notice multiple times, they have not stopped the violence.

Last week the United Nations issued a report stating that 70,000 people have died in Darfur in the last year. In addition, 1.7 million have been displaced or are refugees and hundreds of thousands more have been affected.

U.S. Assistance and Efforts to Raise Awareness.

Many in the international community were reluctant to get involved or recognize the true magnitude of the atrocities. We decided to engage last year – decided to lead. Early this year, Secretary Powell sent a team into Sudan to begin to deal with the crisis. We helped broker a ceasefire between the Government of Sudan and the rebels, which unfortunately did not hold. But talks continue.

In April, President Bush publicly condemned Sudan – he was the first to do so – and urged the international community to intensify efforts to end the violence. We increased our flow of aid, now totaling $211 million. We went to the UN Security Council and asked for a resolution on Sudan – one that would be firm. We were able to obtain one on July 30, 13-0 with 2 abstentions, which demanded that Sudan disarm the Jingaweit militia, bring them to justice and open up the humanitarian corridor. It additionally warns that the Security Council will take further actions and measures as necessary.

We also launched an investigation as to whether genocide was occurring. In June, I testified before the Congress that there were indicators of genocide. My conclusions were based in good part on the work of a Pepperdine University School of Law student, Jon Derby. In July, our investigative team visited refugee camps to interview victims and survivors. As a result of their work, we publicly concluded that genocide has been committed, and may still be occurring, in Darfur and that the Government of Sudan and the Jingaweit bear responsibility. We were the first country to do so. We then returned to the Security Council and called for and got a UN investigation into the matter as specified by the Genocide Convention. We hope the UN team will be deployed soon. When I was in Rwanda in April on the occasion of the 10th anniversary of the Rwandan genocide, as part of the commemoration, African heads of state stated their desire to see Africans take more of a leadership role in responding to genocide on the African continent. We encourage this. In the case of Sudan, we are leading by building a coalition around the African Union (AU) so that they can help end the atrocities and bring peace. To ensure that the AU had the mandate to secure Darfur we returned to the Security Council and gave them the authority to act.

We are now working with other international partners, including Australia, Belgium, Canada, France, the Netherlands, the United Kingdom, and the European Union to support the African Union. We are providing $20.5 million to help fund the AU mission. Nigerian and Rwandan troops are going to Sudan and we are scheduled to airlift troops hopefully this week. This mission is vital to restoring security so that the dislocated, starving, hunted people can avail themselves of the humanitarian aid.

We are continuing to press the Government of Sudan and we continue to monitor its actions. While we are pleased that Sudan and the rebels have agreed on a protocol to facilitate delivery of much-needed humanitarian assistance and have engaged in discussions on security issues, more is needed.

Iraq.

In Iraq, we press for progress as well. We are fighting for humanity and the rule of law. We are supporting the Iraqi people in their work to prosecute Saddam Hussein and his regime for war crimes, crimes against humanity and possibly genocide because President Bush saw that the Iraqi people were crying for justice. They want to do this themselves and feel that they have something to prove. America’s task in Iraq, as the President has said: "is not only to defeat an enemy; it is to give strength to a friend … that serves its people and fights on their behalf."

Last year I visited Halabja, the site of one of the worst chemical weapons attacks where between 3,500 and 5,000 people were killed. I met people who are still suffering today from the chemical ingestion and burns that they received over fifteen years ago. I heard their stories. I saw how they continue to be inflicted with lung diseases and other illnesses. They cried before me, literally, for justice. For some, it is their only hope. For others it is their salvation – a cure. I do not know if the people I saw are still alive, but I do know that they do not want to die without knowing that the truth of the past will be fully revealed and that evil will be called by its given name.

Just two weeks ago, on October 7, we worked with the Iraqis to exhume 192 bodies from a mass grave that potentially has up to several thousand more. Among the victims was a woman holding a baby in a blanket. The infant had a bullet wound to the back of the head, the mother to the face. Children ages 1-12 were found, all with bullet holes in the back of their skulls. Some in the grave had their hands tied behind their backs. Toys, shoes, cooking supplies, food, women’s bags, jewelry, and other household items were also discovered in the graves leaving the unmistakable impression that the victims were forced to march out of their homes into the desert not knowing their fate.

Saddam Hussein and his regime ruled with terror and brutality. The regime institutionalized violence, torture, rape, murder, and mass extermination. They gassed and killed up to 100,000 Kurds in 1988. They brutally oppressed, tortured, and killed over 1,000 Kuwaitis during the Iraqi invasion and occupation of Kuwait and displaced 1.5 million people there.

Saddam’s regime brutally attacked and killed up to 60,000 Shi’a Muslim in southern Iraq and drained the southern marshes – that supported their livelihood – dry. Saddam’s regime also committed an untold number of atrocities during the war with Iran. Saddam’s son, Uday, is reported to have raped and murdered young women, some of whom it is said were later fed to his lions. It is also reported that Uday would torture Iraqi soccer players after a poor performance. And these are the crimes that we know of.

Human Rights Watch estimates that as many as 290,000 Iraqis disappeared at the hands of the Iraqi government. These people have not been found, but over 270 mass graves – many containing thousands of bodies each – have been discovered or reported. Ladies and Gentlemen, Saddam was a genuine threat, a madman, and a menace to civilization. When I was in Iraq last, a month ago, I went to the detention facilities and saw the core leaders of the Saddam Hussein regime. I looked them in the eyes. They were sick, nasty, evil men who would take a human life in a minute. So when you consider the depth of the inhumanity, the world and the future of the world are better, safer, and more humane without Saddam Hussein. Removing him was the right thing to do.

Now, in the current season, there is a healthy debate as to the merits of going into Iraq. While many countries have supported us, we saw others in the international community who did not. But as you assess the opposition, I recommend you read the Duelfer Report, prepared by the Iraqi Survey Group, which sheds light on Saddam’s intentions regarding weapons of mass destruction. It also discusses how Saddam implemented a strategy aimed at manipulating and dividing the United Nations Security Council members by effectively buying off people through the oil for food program.

The report names dozens of individuals and firms including prominent French and Russian ones as well as the former chief of the UN oil-for-food program, who according to the report repeatedly received and exploited oil vouchers from Iraq – vouchers that allowed the recipients to buy oil from Iraq and resell it at a profit totaling $1.78 billion in contracts to the French companies. And a $12 billion deal for Russian companies had been planned.

Iraq has a long legal tradition that dates back to the time of the Code of Hammurabi (the first king of the Babylonian Empire who ruled from 1792 to 1750 BC). Our job is to help them get it back. The Iraqi Governing Council established the Iraqi Special Tribunal which will try Saddam and others. The statute of the tribunal calls for international advisers and monitors to bolster the effort. Last week I attended a training conference in London for judges of the Iraqi Special Tribunal. In attendance were 41 jurists, judges and lawyers who are dedicated to move forward towards impartial justice. Our purpose was to help inform them of international law, standards and procedures that they had been deprived of and help them create a society where justice triumphs.

What was clear to me during this conference is that the Iraqis have a thirst for justice and want to administer it themselves. We believe the international practice should be to support sovereign states seeking justice domestically when it is feasible, so that the society takes ownership over the process and feels a part of the effort.

We asked the UN international tribunal in The Hague to help with the training in London. Kofi Annan said no, claiming that it is doubtful the process will meet international standards. The purpose of the conference itself was to help raise the standards. Additionally, I do not know how the UN could form such an opinion having never met with the Iraqis assigned to this court. He also said that it was not desirable for the UN to assist a court that could administer the death penalty, which the Iraqi process could. Yet the UN has assisted Rwanda and Afghanistan in their justice efforts, and both have the death penalty. With or without them, I am confident that justice will be properly and credibly served.

I am hopeful for the future of Iraq. The Iraqi Government is now running the day-to-day operations of its country. Nearly 2,500 schools have been renovated; 32,000 secondary school teachers have been trained. Iraq has a free press with over 100 newspapers and numerous broadcast outlets. NATO will provide training to Iraqi security forces. Like Afghanistan, Iraq will have historic elections in January.

Iraq also now has a stable currency, the value of which has risen 25 percent. Donor conferences are bringing in needed funds, and fifty-five countries participated in the one that just occurred two weeks ago in Tokyo. While terrorists, foreign fighters from neighboring countries, attack and plot in the Sunni triangle with the objective of preventing progress, they will be defeated. Their goal is to stop the spread of democracy, the freeing of a people, because their biggest fear is that success in Iraq is the start of reform elsewhere.

War on Terror.

The last issue I want to raise is the war on terror. There has been much discussion on how best to deal with terror. Do we respond to terrorism as a law enforcement matter or a military one?

The war on terror is not a metaphorical war. A private network is engaged in catastrophic levels of violence that threaten humanity and democracy, and its sole objective is to destroy human life. These are not ordinary crimes, and the perpetrators are not common criminals. Therefore we must break way from our pre-9/11 way of thinking and recognize that this is an unconventional yet actual war.

For over a decade, Bin Laden and his co-conspirators issued statements calling upon Muslims everywhere "to kill U.S. citizens – civilian or military – and their allies everywhere" and calling their offensive a "war." They actively launched attacks against the United States that have killed thousands.

In 1993, Al Qaida bombed the World Trade Center and attacked U.S. service members in Somalia. They killed and injured hundreds of others in the bombing of our embassies in Nairobi, Kenya and Dar es Salaam, Tanzania in 1998. They bombed the U.S.S. Cole in 2000. And there have been other attacks or attempted attacks that I have not listed. Then of course there was the four-pronged, coordinated attacks of September 11.

I can tell you that being in Washington, having been evacuated, having had to work out of an undisclosed location, sitting down at the drawing board to determine what our response would be, it felt like a war. These attacks I described – though periodic – have been sustained in their strategic sense. They were not sporadic acts of violence. The international reaction understood this. NATO, the Organization of American States, Australia and New Zealand invoked their respective mutual defense provisions. UN Security Council Resolutions recognized our right to self-defense. And, our Congress authorized the use of force.

Ladies and Gentlemen, this war continues. Since 9/11 we can catalogue at least 17 major attacks committed by al Qaida against the international community that have resulted in at least 3,313 persons being injured or killed. These attacks span the globe in places like Pakistan, Tunisia, Philippines, Yemen, Spain, Indonesia, Jordan, Russia, Kenya, Kuwait, Saudi Arabia, Turkey and elsewhere. And this figure does not include the countless innocent civilians killed by these terrorist groups in Afghanistan and Iraq.

During the war on terror we have detained people whom we view as enemy combatants. Currently there are 556 detainees at Guantanamo Bay from 38 different countries. We believe that the laws of war permit the United States to detain enemy combatants for the duration of hostilities, as has been done in all wars. Our foremost objective is to ensure that the enemy combatants who pose an ongoing threat are not released only to strike again.

In the end these detainees will be prosecuted by the United States, returned to their own country for prosecution or detention, or released if they no longer pose a threat. To date, 202 detainees have already been transferred out of Guantanamo to about 15 different countries. Some were sent back for investigation and prosecution and others were outright released. Some of those released from Guantanamo have returned to battle in Pakistan and Afghanistan.

The question of whether we are correctly interpreting the law is now before the courts. The courts will have to reconcile competing views. We are at a moment in history where we are facing issues of first impression. Time and history will judge our efforts.

I would like to close with a message to the students who are here today. Fifteen years ago I was where you are now. At that time, I thought the problems of the world were too great for me, the individual, to make a difference. I assumed that my ability to contribute was minute.

I had no idea that I would go on to literally make history. I did not know that the work that I would do would help entire societies achieve peace, come to terms with their past, and save lives. If you told me that I would sit at the table with the President of the United States, the Secretary of State and the National Security Advisor, and they would say, "Pierre, what do you think?" I would have called it a nice dream.

The lesson of my experiences is that the individual can make a difference. The lesson is that if you want to contribute you can. While to do so may require leading, taking risks, leaving your comfort zone and doing what may be difficult or unpopular, it may be what is required for the betterment of society and for the sake of humanity. So I encourage you – urge you – to strengthen your lives for purpose, for service, and for leadership in the world.

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[Source: US Department of State, Remarks at Pepperdine University, Malibu, Cal, 26Oct04]

Corte Penal Internacional

This document has been published on 23nov04 by the Equipo Nizkor and Derechos Human Rights.