The Role of the International Criminal Court in Punishing and Preventing Genocide
Join
us on Friday, April 13, at 2EST for an online discussion with
Special Advisor Juan Méndez, former Amnesty Prisoner of Conscience
and currently the first ever United Nations special adviser on the prevention
of genocide. A native of Argentina, Mr. Méndez has dedicated his legal career
to the defense of human rights and has a long and distinguished record of advocacy
throughout the Americas. Mr. Mendez can answer questions about the important
role of the International Criminal Court and other international mechanisms
and measures in combating genocide.
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From our featured guest: "
The International Criminal Court is a judicial body, and for that reason it is set up to deal with punishment of the crime of genocide, not with prevention (prevention and punishment being the twin objects and purposes of the Convention against Genocide of 1948). Nevertheless, it is clear from the architecture of the Genocide Convention that punishment was always meant to have a preventive effect as well. That is why the Convention contemplates penalizing offenses like incitement or instigation to commit genocide, as well as attempted genocide even if not fulfilled.
In addition, I strongly believe that effective accountability for the crime of genocide and related mass atrocities (crimes against humanity and war crimes) is an essential element of prevention facing the future. In the case of Darfur, my experience as the Special Advisor to the SG on the Prevention of Genocide convinced me that it was impossible to protect the potential victims adequately unless we broke the cycle of impunity for the crimes already committed against them, whether they amounted to genocide or not. For that reason, I joined some early calls for the Security Council referral of the Darfur case to the ICC, which was accomplished on April 1, 2005. Later on, as I followed events in Darfur, I insisted that the Government of Sudan should not be allowed to get away with its oft-stated policy of non-cooperation with the Office of the Prosecutor, since the referral was a decision by the Security Council adopted under Chapter VII of the UN Charter and therefore binding on Sudan. Unfortunately, the policy of non-cooperation is still very much in place, though the Prosecutor has been able to obtain evidence through other means and has effectively advanced the process through the request that two Sudanese leaders be summonsed to appear.
In this case, the ICC role has made some contribution to prevention of what could have been (and fortunately could still become) a second major humanitarian and human rights disaster in Darfur. It is also clear, however, that the ICC is an important tool but that prevention requires much more than the credible threat of prosecution for those responsible. In my role as Special Advisor (that has ended on March 31, 2007), I found that effective prevention in any given situation is predicated on acting simultaneously and in a balanced and coordinated way in four inter-related areas:
- Protection, including armed contingents to stand in the way of those who might attack defenseless civilian population;
- Humanitarian relief, since those same populations are vulnerable not only to physical attack but to conditions of life designed to produce their extinction as a group. Also, it is important to revert the consequences of previous attacks by facilitating the return of internally displaced persons to their places of origin;
- Accountability for the crimes already committed, both as a way of generating trust in the population we need to protect, but also to discourage new attacks. This relates to my answer about the ICC, but bear in mind that I mean accountability in a larger sense, including judicial and non-judicial responses to those crimes, as well as inter-communal talks to promote reconciliation between ethnic or religious groups; and
- Addressing the root causes of the conflict through meaningful peace talks, starting with a cease fire but quickly moving along to a peace that is lasting because it is not merely the silencing of the guns, but peace with justice.
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Moderator's comment:
Welcome, everyone, to our online discussion, "The Role of the International Criminal Court in Punishing and Preventing Genocide." We'll begin in just a few moments.
- Milo
Moderator
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Question Submitted by Elizabeth Bernold:
What are your feelings on the potential effectiveness of the UN Human Rights Council? Will it do good over the next year? Does it have any hope in stopping current and future genocides?
Mr. Juan E. Méndez answers:
The HRC is off to a very bad start, even considering the low expectations we had when several of its most promising features were voted down during the UN reform process. I am particularly disappointed with the treatment of the Darfur question. Its lack of resolve has allowed the Govt of Sudan to defy the HRC by not allowing access to its high level mission. I doubt that the HRC will be very effective at all during the next year, but I do believe we need to work with a view to make it effective in the long run. With respect to stopping genocide, I never thought the HRC would play a CENTRAL role in prevention, because it think prevention of genocide is both a human rights but also a peace and security issue. But I certainly would have hoped it could have helped a lot more.
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Question Submitted by Raluca:
I am collaborating to the Burma Digest, an on-line publication which, over the past months, has been trying to collect evidences that there is genocide in Burma. What do you think? Whose competence is it, ultimately, to establish whether we are dealing with a case of genocide or not? What specifical evidences should we look for?
Mr. Juan E. Méndez answers:
In Burma and in other places, I am not sure that we should spend a lot of time and energy establishing whether genocide is happening or not. This is a distracting discussion, and it particularly distracts us form the task of putting an end to mass atrocities, whether they amount to genocide or to something else. Having said that, I believe the documentation that is needed in Burma has to do with specific incidents in the Kayin region and other border regions, particularly of troop movements that result in attacks against civilian population, either by killing their members of by forcing them to move and thereby live under conditions that could bring about their destruction. Of course, there is ample evidence of this already, and also of the fact that minorities in Burma are disproportionally affected, thereby making them a "population at risk." Yet more evidence and more updated information (which is difficult to obtain in Burma because of the regime's policy of a closed society) would certainly help.
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Question Submitted by Mary:
Wasn't it the support of the US government (money & training) that made the Guatamalen genocide possible?
Mr. Juan E. Méndez answers:
US money and training of the security forces was always a factor in Guatemala, although the level of support change over the years. I believe it lent legitimacy to a murderous regime -- actualy a genocidal one, as has been carefully established by the UN-sponsored Commission on Historical Clarification -- but perhaps it would be going too far to say that US assistance made the Guatemalan genocide possible. Given the ideology of the regime, the genocide might have happened with or without US assistance. Of course, that is not to excuse that assistance, especially when at the time there were many voices calling for US foreign policy to exert its influence in a more human rights-oriented way.
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Question Submitted by Uhuru:
The world has experienced many genocide cases from jewish,africanz in african and the african in america and the native americans and the vietnamese? So the questions is how do a people araise the awareness of how genocide takes place tothose who dont recognize how it is happening around the world since beginning of time and what is the best solution to take without being prosecuted oneself by law enforcements once a person decides to create awareness against government and culture insensitivty and violence?
Mr. Juan E. Méndez answers:
I think we raise awareness on ongoing mass atrocities by speaking out about them and by joining organizations like AI. I don't think one risks persecution by law enforcement by speaking to those issues. More direct witnesses or victims, however, should carefully check with AI or with lawyers so that their speaking out does not jeopardize their immigration status or put friends and relatives at risk of persecution.
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Question Submitted by chelsea:
Dear Juan Méndez: My name is Chelsea and I am a sophomore in high school. I am currently working on a huge research project on the United States' response the the Bosnia Genocide in the 1990s. The ultimate goal is to write a 5 paragraph persuasive paper and give a speech. I said that the United States response was inadequate. What were the major failures of this response crafted by the United States and what would have been a more effective response?
Mr. Juan E. Méndez answers:
The question is better directed to specialists in the Former Yugoslavia, which I am not. However, from my experience with prevention of genocide, I would say that the whole international community (including the US) was slow to respond to the gathering storm in Bosnia in the 90s, and hesitant to act more forcefuly because of considerations about the post-communist leadership in Serbia. The Milosevic regime enjoyed protection from Russia and others, but it also exploited the lack of resolve and contradictions of the Western governments. In particular, the West tried to "contain" the Serbs by threatening with prosecution but were unwilling to protect civilian with armed contingents until it was too late.
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Question Submitted by Emily:
I am a high school senior planning on attending American University this fall. The type of work you do is incredibly important, and I am very interested in international justice. Do you have any advice on how to go about studying this in college, and also turning this interest into a career as you have?
Mr. Juan E. Méndez answers:
Many undergraduate programs now exist about international human rights issues, including international justice. I am not particularly familiar with undergraduate programs but I know the Washington College of Law at AU has several of the finest programs you can find anywhere on these issues. Perhaps as an undergraduate you can try and familiarize yourself with the law school's events, etc.
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Question Submitted by Val:
Can the International Criminal Court prosecute Bush-Cheney administration for the illegal war on Iraq and Afghanistan (as well as their complicity in 9-11) even if the US is not a member? We in the US need someone to help us out from under our dictatorship. Thank you.
Mr. Juan E. Méndez answers:
The rules of the ICC are very strict on jurisdiction, and it means that the ICC has jurisdiction for potential war crimes committed by Coalition forces in those two countries only if the State that sends those troops is a signatory of the Rome Statute (e.g., the UK, Canada in Afghanistan, etc.) That leaves out the United States. The only way in which agents of a non-member can be subject to prosecution is by consent of the government of the victims (in this case, Iraq and Afghanistan, not a high likelihood) or by the Security Council referring the case to the ICC (where the US would exercise a veto in any case). What we need to do is change the US policy towards the ICC, and that is not impossible.
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Question Submitted by Sherri:
Senor Mendes, I would first like to thank you for your work, and I must say that I am honored to have the opportunity to discuss this issue with you. I have read that one way to prevent genocide is to create a culture that understands and respects humanity. Do you think that our global society can or will ever reach this level of understanding? Also, what can each person do on an individual basis to prevent genocide.
Mr. Juan E. Méndez answers:
Creating a culture of respect for human rights is one of those long-term roads to prevention that is absolutely necessary. I think it is also possible, just like humanity evolved to the abolition of slavery, is evolving to the eradication of torture, etc. But we must also think in terms of the short-term, more immediate ways of preventing genocide. They require the political will of powerful states, but that political will is never spontaneously present: it is built over time by the commitment and effort of individual men and women, especially young people. It is slow and frustrating work, but it is also crucially necessary, and capable of good results.
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Question Submitted by Emily:
Shouldn't the Amnesty International also look at the Massacre of Nanjing as of the genocide in the world?
Mr. Juan E. Méndez answers:
It is not my place to say what AI should or should not do. Ask AI spokespersons.
As for the episode known as the Rape of Nanking, during World War II, I think it is important for Japan to examine its actions fully and truthfully, as it is also true of all belligerents in all wars.
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Question Submitted by David Johnston:
Hello Sir What do you see as some of the most important things that can be done now to stop genocide? And to repeir the damage already done in its wake? With great respect, David Johnston
Mr. Juan E. Méndez answers:
It really depends on each conflict. But at the very least, we must ask our leaders to act simultaneously in four areas: 1) protection, including physical, armed protection of vulnerable populations; 2) humanitarian relief, to revert the consequences of past wrongful actions; 3) accountability of those past crimes, so as to generate a sense of trust among the victims that their plight is heeded; and 4) addressing the root causes of the underlying conflict through peace negotiations that can reach a lasting peace.
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Question Submitted by Zarghuna:
What's the difference between what the Germans did to the Jews & what the Americans are doing with the Muslims?
Mr. Juan E. Méndez answers:
The treatment of suspects of terrorism (Muslim or otherwise) by the US is a shameful stain on the US's history. The lack of concern for civilian populations in the wars being fought in Afghanistan and Iraq is also at the very least a violation of the US obligations under the Geneva Conventions. Still, to compare these episodes with the extermination of six million people solely because they were considered of an inferior race, seems to me to miss the point and risk the conclusion that "everybody is guilty, therefore no one is."
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Question Submitted by George:
How can we even try to prevent future genocides when some countries refuse to even acknowledge that ones in the past even existed?
Mr. Juan E. Méndez answers:
Denial is a clear warning sign or indicator that should alert us so that we can effectively prevent. That is why it is important to continue to press countries that do not acknowledge past crimes to do so, and to acknowledge them fully and truthfully, and to offer reparations to the vicitms.
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Question Submitted by Miriam:
In regards to the situation in Darfur, Sudan, what do you see is the best solution to end the attrocities committed against Darfurians?
Mr. Juan E. Méndez answers:
The most urgent thing is to offer serious protection, by putting in place the international contingent of 23,000 troops that the Security Council has approved nine months ago. But that also has to be coupled with a serious attempt at a cease fire and new peace negotiations, immediate and unconditional access by humanitarian workers, and support for the role of the ICC in bringing the perpetrators of abuses to justice.
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Question Submitted by Margaret:
Thank you for making it out alive and continuing to serve others. You are heroic. If you needed to select one, what do you think is the single most important action an individual can take to end genocide forever?
Mr. Juan E. Méndez answers:
I don't think there is a single action anyone can take. Unfortunately, preventing genocide requires of each of us a sustained, committed, prolonged engagement with the issues. We all need to read and study more, and be prepared to do more in our communities to raise the level of awareness of what goes on in distant places, and to put pressure on our leaders not to look the other way.
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Question Submitted by Susybelle:
Thank you for your work. How can citizens demand more reporting of prisoners of conscience and other human rights information in local newspapers?
Mr. Juan E. Méndez answers:
Write letters to the editor with your own information, seek to meet the editors, make them aware of reporting services on political imprisonment, etc.
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Question Submitted by Sara:
Omar al-Bashir, the Sudanese president, has said that the ICC does not have the jurisdiction to charge Sudanese officials with crimes against humanity, war crimes, etc. Is this the case? And if so, how is this possible when a genocide is taking place? Thank you for your time and patience. It is much appreciated.
Mr. Juan E. Méndez answers:
President Bashir is wrong on the law. The ICC has jurisdiction under the Statute of Rome and under the decision by the Security Council to refer the case of Darfur to the ICC, adopted on April 1, 2005. That decision was adopted under Chapter VII of the UN Charter, so it is binding on Sudan and on every member of the United Nations.
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Question Submitted by Maddy:
In your experience, has there been one over-riding factor which has been common to the cause of most of history's major genocides, such as Auschwitz, Cambodia, Rwanda and Darfur?
Mr. Juan E. Méndez answers:
The literature on genocide has tried to come up with "indicators" or factors, mostly for the purpose of prevention. I don't think there is one that overrides the other factors in general, although on a case by case basis some factors are more prevalent than others. An unaccountable, dictatorial regime; the free utterance of hate speech; the unavailability of remedies for discriminated minorities; impunity for past crimes; all of these and some others are important factors.
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Question Submitted by Marty:
Many law students are interested in getting involved in the work of the ICC, or at least in supporting their work. What are practical things that law students can do that would be useful?
Mr. Juan E. Méndez answers:
I suggest talking to your professors of international law, offering to intern at ICC headquarters in The Hague, etc.
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Question Submitted by Ruth:
First let me say that I truly admire you for the work your doing on genocide prevention. What is the work you do in preventing genocide, and is the UN doing enough to stop it?
Mr. Juan E. Méndez answers:
If the UN was doing enough there would be no need for an office of Special Advisor like the one I occupied until two weeks ago. In this area, nothing is ever enough. Still, the UN is taking steps in the direction of eliminating some the gaps in its capabilities that rendered the international community helpless to act in Rwanda, Srebrenica and most recently Darfur. A lot more has to happen.
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Question Submitted by Bart:
Do you think that working towards American recognition of the importance of International Justice and Accountability issues as well as working towards real American action on these issues should be a priority for activists? How can we do that?
Mr. Juan E. Méndez answers:
It should be a priority. What you can do depends on where you are and what you would wish to do. But AI and other human rights organizations have many ways to get involved. Ask them.
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Question Submitted by Bart:
To what extent does lack of support from a country like America inhibit the work of the ICC in combating genocide and other issues?
Mr. Juan E. Méndez answers:
It is a serious weakness. For now it is not fatal to the ICC, and actually US hostility to the ICC hurts more the US than it hurts the ICC. But down the road it is inconceivalbe to have a serious project of international justice without US participation.
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Question Submitted by Chad:
How can Amnesty International end the genocide occuring in the Darfur region of Sudan?
Mr. Juan E. Méndez answers:
AI is already doing a lot, but I am sure they can give you a better answer than me.
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Question Submitted by Jeff:
Thank you for taking time with Amnesty members today, Mr. Mendez. I understand that U.S. policy towards the ICC has become more supportive in recent years. Could you tell us a little bit about your perspective on this shift in the Bush administration's policy? How important is the support of the U.S. for the success of the International Criminal Court in prosecuting crimes of genocide, crimes against humanity and war crimes?
Mr. Juan E. Méndez answers:
The US has become less hostile to the ICC, certainly, and this is because the Administration has realized that it needs the ICC for some of its stated goals. I also think it is because there is a shift in public opinion away from isolationism and go-it-alone and towards a more healthy respect for justice and multilateralism.
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