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23. Remarks of the Department of State Legal Adviser, "The Importance of the Rule of Law in Preventing Conflict and Rebuilding Societies."


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Remarks for the ABA International Rule of Law Symposium Panel on

“The Importance of the Rule of Law in Preventing Conflict and Rebuilding Societies”

Moderator’s Question:

We have talked about the importance of the rule of law for conflict prevention and stabilization — law and order issues. What about justice and accountability? Is dealing with the past a prerequisite for building a sustainable peace and a healthy society? What mix of national, traditional, and international tribunals makes sense?

JBB Response:

Yes, Jonathan, dealing with the past is a prerequisite for building a sustainable peace and a society based on the rule of law. This is why the United States is firmly committed to accountability. We believe that people who commit genocide, crimes against humanity or war crimes must be held accountable.

Holding individuals accountable provides:

  • Deterrence effect: end impunity for such grievous crimes.
  • A measure of justice for victims.
  • An unvarnished historical record, preventing criminals from masquerading as national heroes.
  • Ability to establish individual responsibility, as opposed to collective responsibility, so that groups can achieve reconciliation.

There is no single means of pursuing accountability. Rather, there is a spectrum of options: domestic prosecutions, international tribunals, hybrid tribunals (including those featuring a mix of local and international judges), and other mechanisms, such as truth and reconciliation commissions.

As a starting point, the USG believes that domestic prosecutions, where feasible, are the best option. Ideally, criminal defendants should be tried by their own people under their own laws. But homegrown justice is not always possible.

Some of the factors to examine in identifying the best option for a particular situation include:

  • The desires of the affected societies.
  • Political will.
  • General environment for fair trials.
  • Capacity – including existence of trained and professional judges and prosecutors and provisions for legal representation for defendants; protections for victims and witnesses; financial and other resources for conducting investigations and trials.
  • Access to evidence and ability to bring defendants into custody.
  • Commitment and support of the international community.

Let me give you some concrete examples of particular types of tribunals and USG engagement and support.

Ad Hoc Tribunals: ICTY and ICTR

In the cases of the former Yugoslavia and Rwanda, we recognized the impossibility of bringing key perpetrators to justice in domestic courts. In both cases, conditions on the ground — including lack of political will and capacity as well as concerns about fair trials in ethnically inflamed environments — made an international ad hoc tribunal an appropriate response. Indeed, with Yugoslavia, the tribunal was established while the conflict was still raging.

The ICTY and ICTR were ground-breaking, established under Chapter VII of the UN Charter. Incidentally, I am proud to say that State Department lawyers helped draft the relevant UN Security Council Resolutions that established these tribunals.

Since their inception, the USG has remained committed to these two tribunals. We provide:

  • Financial support: since the creation of the tribunals, the USG has provided about one quarter of the total cost of each tribunal; last year we contributed $29.7M for ICTR and $42.5M for ICTY.
  • Political support: both through public expressions of commitment, such as S meeting in June with ICTY and ICTR presidents and prosecutors, and through continuing pressure on countries in region to cooperate with tribunal, including, in case of Serbia, through withholding financial assistance. This has worked: In ICTY context, USG pressure and diplomatic efforts have played an important role in the recent rash of PIFWC surrenders; today, only 7 ICTY PIFWCs still at large.
  • Technical support: including through an information-sharing program with the defense and prosecution.

But these tribunals were never intended to be permanent. Once the major perpetrators are tried by the ICTY and ICTR, and conditions in the affected countries improve and stabilize, the locus of war crimes prosecutions will—as it should—shift back to the domestic arena. This calls for a focus on domestic capacity building. In the Balkans context, for example, the USG was the single largest contributor to creation of the Sarajevo War Crimes Chamber, providing $10 million last year. The Chamber—which has a mix of local and foreign prosecutors, with the foreign staff scheduled to be phased out over time—opened its doors this year. We have also provided significant funding for the Belgrade War Crimes Chamber, as well as support to Croatian courts. We fund training for regional judges and prosecutors in the region, and have an active DOJ Resident Legal Adviser program to provide technical assistance and advice.

Special Court for Sierra Leone

The Special Court for Sierra Leone (SCSL) is, unlike the ICTY and ICTR, not a UNSC subsidiary organ. It was established by an agreement between Sierra Leone and UN pursuant to Chapter VI, not Chapter VII, of the UN Charter. Only one state—Sierra Leone—has assumed legal obligations regarding the Special Court. It is thus a hybrid, rather than a purely international tribunal. The court has a simplified structure, is less cumbersome and less expensive than the ad hoc tribunals, and operates on a smaller scale: the SCSL has issued 13 indictments (the ICTY has issued approximately 160, the ICTR over 90). The USG has supported the search for accountability in Sierra Leone, voluntarily contributing $22M to the Special Court as well as contributing to Sierra Leone’s Truth and Reconciliation Commission.

Iraqi High Tribunal (formerly known as Iraqi Special Tribunal)

Yet another type of tribunal is that recently created in Iraq. In the case of Iraq, there was the political will to prosecute senior-level former regime officials for war crimes, crimes against humanity, genocide, and certain offenses under Iraqi law, and much of the capacity needed to do so domestically. However, there was a need for assistance in certain areas, particularly in the area of security. The Iraqi Governing Council thus chose to create a domestic court with international support. The Iraq Special Tribunal is a two-tiered court [there’s only a trial chamber and an appellate chamber] that operates in accordance with Iraqi law; its statute and rules of procedure draw upon the experience of the ICTY, ICTR, and SCSL. International support has included technical assistance, including training for the judges in international criminal law and procedure. The USG has provided funding and has established the Regime Crimes Liaison Office (RCLO) to support Iraqi-led investigations and prosecutions. The first IST trial, of Saddam Hussein and 7 other defendants, began October 19.

ICC

But we do not support every type of tribunal. Take the ICC, which is a treaty-based tribunal. While the United States shares common goals with many ICC supporters, we disagree with the ICC’s method for achieving accountability. From the U.S. perspective, the ICC lacks an adequate system of checks and balances: the Rome Statute gives the ICC prosecutor the ability to initiate cases without appropriate oversight by the UN Security Council. This creates a risk of politicized prosecutions, and infringes on the Security Council’s primary role under the UN Charter for the maintenance of international peace and security. In addition, as a matter of principle, we object to the ICC’s claim of jurisdiction over persons from states who have not become parties to the Rome Statute.

While the United States continues to maintain fundamental objections to the ICC, we share with ICC supporters the commitment to bringing to justice perpetrators of genocide, war crimes, and crimes against humanity, and we believe that our differences over the ICC should not prevent us from finding ways to work together on this important issue. We did not veto UN Security Council Resolution 1593, which referred the situation in Darfur to the ICC, because we recognized the need for the international community to work together to end the atrocities in Sudan and speak with one voice to bring to account the perpetrators of those crimes. Moreover, we have re-emphasized that we respect the right of other countries to become party to and support the ICC, but we expect ICC parties to respect our right not to become a party and not to be covered by the Rome Statute.

In short, the United States will continue to be a strong advocate for accountability and efforts to bring peace and rule of law to countries whose populations have suffered grave atrocities. In pursuit of that accountability, the USG supports certain general principles, including: (i) preserving an appropriate role for sovereign states in ensuring justice, (ii) crafting responses to local conditions and needs, and (iii) keeping the door open to a variety of accountability options, in order to incorporate lessons learned, address new developments, and adapt to new challenges.

Further Data Points and Information for Discussion Session

ICTY/ ICTR Funding: Since tribunals set up in 1994, USG has provided over $450 million in assessed and voluntary contributions — nearly ¼ of the total cost of running the tribunals

ICTY/ICTR Completion Strategy: Final indictments have been issued; end of trials scheduled for 2008 (but will slip) and appeals for 2010

Challenges on the Horizon: In the context of Burundi, there has been discussion in the UN about establishing a special chamber within the domestic court system to address violations of international humanitarian law. In principle, this seems sensible, if there are appropriate international elements at the trial and appellate levels. In Cambodia, we continue to monitor the establishment of Khmer Rouge Tribunal. USG welcomed the 2003 agreement between UN and Cambodia to establish a tribunal under Cambodian law composed of both international and Cambodian judges, and strongly believes in the need for accountability for the atrocities committed by the Khmer Rouge regime in the 1970s. It is envisaged that a small number of individuals would be tried. However, before the United States can contribute to this process, we believe—and U.S. law requires (FOAA restriction)—that the tribunal must meet internationally recognized standards of justice. The tribunal is currently being established; as it is formed and begins its work, we will engage with the Government of Cambodia, the UN, and interested countries to achieve this goal. We have provided funding for the Documentation Center of Cambodia, an NGO whose objective is to seek justice by documenting and compiling evidence of atrocities.

USG Support for ABA-CEEELI

Over the years, the USG has been a consistent supporter of ABA-CEELI projects that help bring the rule of law to countries in transition. One example:

Balkans Law School Linkage project: From 2000 to 2004, we supported this CEELI project that focused on the improvement of legal education in the former Yugoslavia through exchanges with American law schools. The project linked law faculties, first to one another and, in turn, to law schools in the United States. In these exchanges of administrators, faculty and students, emphasis was on helping Balkan law faculties develop practical-clinical-legal training skills. The exchanges also assisted with curriculum development, Internet capabilities, law library administration, and the establishment of student associations. The program also included the development of open legal clinics at each of the Balkan schools. Each Balkan law faculty was paired with a “sister law school” in the United States.



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