Impunity Watch: Special Features

From Nuremberg to Darfur: Accountability for Crimes Against Humanity

By:  Gayle E. Smith

Gayle Smith is a Senior Fellow with the Center for American Progress Action Fund and Co-Founder of the ENOUGH Project.  Gayle Smith's testimony was presented to the Senate Judiciary Committee Subcommittee on Human Rights and the Law on June 24, 2008 and is republished here with her permission.

Senator Durbin, Senator Coburn and members of the Committee, I am honored to testify here today and thank you for your continued efforts to stand for justice for the victims of genocide and crimes against humanity.  I am testifying here in my capacity as a Senior Fellow at the Center for American Progress Action Fund and as co-founder of ENOUGH, the project to end genocide and crimes against humanity.

In this country, arson is a crime.  In this country, child abuse is a crime.  And in this country, rape is a crime.

A crime against humanity is one that takes these violations and amplifies them, targeting not just individuals, but entire communities and peoples.  A crime against humanity is one that offends our common dignity because it is driven by the deliberate decision to deny people their fundamental rights and abuse their basic dignity.  A crime against humanity is an act committed not by a bad apple, or an individual criminal, or reckless undirected youth – it is one that is committed by groups or governments with the power to inflict widespread and systematic abuses that defy our collective imagination.

But a crime against humanity is not an abstraction.  In our world, today, as we gather for this hearing, it is the forced displacement of and armed attacks upon hundreds of thousands of men, women and children in Darfur at the hands of armed militia directed and sustained by Sudan’s government.  It is the widespread abuse of thousands of children in northern Uganda, forced by a raging warlord to kill their relatives and then, having passed the point of no return, to join hands with their oppressors.  It is the epidemic of rape – most of it deliberate, much of it orchestrated - in the eastern reaches of the Democratic Republic of the Congo.

It is my sincere hope that this Committee will, as it has done in the case of the Durbin-Coburn Genocide Accountability Act of 2007, propose legislation that will make crimes against humanity a violation of U.S. law, for two reasons.  First, in so doing we can send a clear signal to the world that we recognize these crimes as violations of our common humanity.  Second, by taking this step we can reinforce the importance and impact of accountability.

We have seen some but insufficient progress in worldwide efforts to hold the perpetrators of genocide and crimes against humanity to account.  More and more countries, among them emerging democracies in Africa, are dispatching the perpetrators of Rwanda’s genocide to the tribunal in Arusha.  We have seen the prosecution of the perpetrators of crimes against humanity in the former Yugoslavia.  The American prosecutor David Crane took the unprecedented if too little noticed step of indicting a sitting head of state, former President Charles Taylor of Liberia, for his crimes in Sierra Leone, thus holding accountable one of the worst of the world’s perpetrators of crimes against humanity.

Referrals by the United Nations Security Council to and actions by the International Criminal Court have seen the indictments of perpetrators in Sudan, Uganda and the Democratic Republic of the Congo.  And just last week, the Security Council issued a statement, significant for the fact that it reflected the unanimous support of the Council, that demanded that the Government of Sudan turn over to the Court the indictees that not only remain free, but have been given positions of prominence in that government.

To be truly effective, the international community must fashion an unbreakable chain of accountability – one that ensures that the perpetrators of genocide and crimes against humanity can neither seek nor secure safe haven in any country on earth.  To be truly effective, the international community must also ensure that its stated support for accountability is backed by meaningful pressure on those who attempt to evade it.

The tragic reality of today’s world is that though we have made progress towards these ends, we are still  witnessing but not halting ongoing crimes against humanity, in part because the international community has failed to send a strong and unanimous signal that those who commit crimes against humanity will be held to account. 

Mr. Chairman and members of the Committee, one of the reasons we are today discussing the crisis in Darfur – one that began over five years ago and has been defined as genocide by both the U.S. Congress and the President of the United States, but one which continues to escalate – is because the perpetrators are not being held accountable for their actions. In the absence of any evidence to the contrary, the perpetrators of genocide and crimes against humanity in Darfur believe that they will pay no price for their actions.  In the absence of any evidence to the contrary, their victims believe, and rightly so, that the world’s most powerful countries have abandoned them.

Ending genocide and crimes against humanity in Darfur requires that we attack on multiple fronts.  First, we desperately need a sustained peace process, backed by robust and persistent diplomacy and reinforced by the pressures and incentives that can motivate the parties to act.  Second, we need to protect the civilians that still, five years in, are awaiting a viable and effective peacekeeping mission that can keep their attackers at bay. 

Third, and for today and for tomorrow, we need to hold the perpetrators of genocide and crimes against humanity to account - to inform their calculations, to make clear that their actions have consequences, and also to send a clear and unambiguous signal that the international community will hold to account those who violate our common humanity.

The United States should do everything in its power to ensure that accountability is both pursued and achieved when crimes against humanity occur, and for several reasons.  First, it is the right thing to do.  By championing the cause of accountability, we send a signal to the international community that the United States stands for justice and reinforce the moral foundations from which we lead.

Second, our full and unwavering support for and pursuit of accountability strengthens both the architecture for and potency of the rule of law on the world stage, and enhances our ability to close the net on those who seek refuge from justice.

Third, it is in our national interests.  If unchallenged, the violence that defines crimes against humanity feeds on itself: conflicts spread, institutions crumble, economies decline and young people are taught the dangerous lesson that violence is a more potent tool for change than is hope. 

Consider Darfur, a crisis that was contained in western Sudan when it first erupted but has now spread to Chad and has also undermined the fragile peace in Southern Sudan.  Look at the Democratic Republic of the Congo, where the echoes of the Rwandan genocide still resonate, and where the unchecked cycle of impunity has contributed to an environment where rape is both rampant and tolerated. The United States can afford neither the instability that arises nor the human and economic losses that occur when crimes against humanity go untended.

Fourth, accountability is the sledgehammer with which we can shatter the vicious cycle of impunity.  It is a tool that enhances our ability to bring crimes against humanity to an end and to prevent their recurrence in the future.  Though we are focusing on Darfur today, we should recall that Sudan is a country that has been at war throughout the 19-year tenure of the current government.  It is a country ridden by a pattern of crimes against humanity – first in the South, and now in Darfur.  A peace process might end the conflict in Darfur, and a viable peacekeeping mission might afford Darfur’s people the protection they need and deserve.  But only the comprehensive application of accountability will break the pattern of violence and abuse that has dominated Sudan for decades.

Enacting legislation that would make crimes against humanity a violation of U.S. law will not end the genocide in Darfur.  It will, however, add another link to the chain of accountability.  Ensuring that those who commit crimes against humanity are in violation of U.S. law is in our national interests, and clearly in the interests of the victims who have few if any protectors or defenders.

There are those who argue that accountability is important, but sometimes inconvenient.  Prominent analysts of Sudan have, for example, suggested that the recent suggestion by the ICC’s Chief Prosecutor Luis Moreno Ocampo that the Sudanese state may be complicit in crimes against humanity is both political and dangerous.  As to the politics, it is my strong belief that these critics are wrong.  Though the role of the ICC remains a matter of debate in the United States, we would be well-served to follow the Court’s example and ensure, as the Special Prosecutor has done, that the prosecution of crimes against humanity is driven strictly by the evidence and consistent with clear legal definitions of these crimes.

Proponents of the “dangerous” argument posit that suggesting that the Sudanese state is in some manner responsible for crimes against humanity risks fueling the regime’s intransigence, thus undermining the peace process and making resolution of the Darfur crisis more difficult. 

To those critics I would say this.  For over five years, the international community has given the Government of Sudan a free pass, and while we have secured indictments and demanded Khartoum’s compliance, we have exacted no cost for that Government’s steadfast refusal to take responsibility – to be accountable – for its actions.  The government in Khartoum continues to unleash its wrath on civilians, to obstruct the will of the International Criminal Court and the UN Security Council, and to hold the rule of law in contempt.

The men who lead that government may be ruthless, but they are also intelligent and calculating.  And the evidence is in – they have altered their behavior only when they have faced meaningful pressure wielded by a united international community, whether in the case of their effort to get out from under multilateral sanctions imposed by the Security Council in the 1990s or to prevent being on the wrong side of America’s “war on terror,” or the resolution of the devastating war in Southern Sudan.  This is a government that has proven itself capable of change only when its direct interests are challenged and they are afforded no alternative.

Today, they have an alternative. They have refused to facilitate or allow the full deployment of the UNAMID peacekeeping force.  They have refused to hand over to the ICC those who have been indicted for war crimes or crimes against humanity.  They have obstructed humanitarian operations.  They have refused to restrain the janjaweed militia. They have attacked the civilians they claim to represent with a devastating impunity.  And for as long as they know that they will not be held accountable, they will continue.

In closing, I would like to thank you, Mr. Chairman, and members of this Committee, for the leadership you have demonstrated.  In the short lifetime of this Subcommittee, you have shed light on the world’s most egregious violations of our common humanity, and taken measures to ensure that the rule of law trumps genocide and that those who perpetrate it are held to account. 

It is my hope that you will continue on this path, and make crimes against humanity a violation of our laws here in the United States.  In so doing, you will earn the strong support of a growing number of Americans who believe, as you do, that crimes against humanity violate not only their immediate victims, but also violate all who champion the cause of human dignity and believe in our common humanity. You will also, and perhaps most importantly, earn the unspoken but unwavering gratitude of those many millions of victims of crimes against humanity who look to the United States to champion the cause of justice.

Shrinking the Space for Denial: The Impact of the ICTY in Serbia

By:  Prof. Diane F. Orentlicher

This abstract is part of an article that was originally published by Open Society Justice Initiative and is republished here with the permission of its author and Open Society Justice Initiative.  The full 137 page report can be downloaded here: Download Impact of the ICTY in Serbia.pdf .

Fifteen years ago the United Nations Security Council launched the contemporary era of war crimes tribunals by establishing the International Criminal Tribunal for the former Yugoslavia (ICTY). At the time, ethnic violence was in full rage in Bosnia-Herzegovina and the daily media were broadcasting real-time images of what were commonly called “the worst atrocities in Europe since World War II.” In this setting, the Security Council’s action struck many as desperate, ad hoc and inadequate: Unwilling to take more assertive action to stop ethnic violence in its tracks, it seemed, the Security Council salved its conscience by creating a court.  Yet despite its inauspicious origin, the ICTY inspired widespread hope and commitment among those who believed it could partially redeem the world’s failure to prevent ethnic carnage in Europe’s heart. If the circumstances leading to the ICTY’s creation induced some measure of skepticism, the Tribunal nonetheless seemed importantly worthwhile in its own right: Its work could answer the vicious violence euphemistically known as “ethnic cleansing” with an authoritative legal reckoning. Authors of mass atrocities would be held to account after all, the ICTY might even deter further crimes in the Balkans, and its operation would send a message to the future that if such crimes occurred again, those responsible would be brought before the bar of justice.

Internationally, the commitment the ICTY inspired proved to be both wide and deep: What had long seemed implausible—a revival of Nuremberg-type tribunals—soon became a normal though hardly routine response to atrocious crimes. Since 1994 the United Nations has created or jointly established international courts to address crimes committed in Rwanda, Sierra Leone, East Timor, Kosovo, Cambodia and Lebanon. In 2002, a permanent International Criminal Court (ICC) began operating; by March 2008, 105 States had become parties to its governing statute.

If these developments signify a deepening commitment to international criminal tribunals, there is also growing debate about their effectiveness. Some wonder whether international tribunals have achieved the goals their supporters thought they would achieve; others question their costs. Yet with few exceptions, there has been scant effort to assess their actual impact beyond their widely-acknowledged and considerable contribution in clarifying the contours of international criminal law. Too often, public debate about the accomplishments of international tribunals has been driven by untested assumptions.

In this setting, the Open Society Justice Initiative believes it important that those involved in the work of international tribunals—whether as practitioners, donors, policy-makers or in other capacities—develop a greater understanding of the impact contemporary war crimes tribunals have had in the regions directly affected by their work. We hope that this report contributes useful insights in this regard and helps stimulate further inquiries into the impact of international tribunals in the countries most affected by their work.

We decided to focus initially on the ICTY for two principal reasons. First, it has operated longer than any other international criminal court and thus has a comparatively rich record of experience. The second reason follows from our awareness that the impact of any international court is highly context-specific, making it perilous to draw broad conclusions about the impact of international criminal tribunals from the experience of any one court. In light of this and of the fact that the ICTY has jurisdiction over crimes committed in several countries (those formerly Yugoslav republics), examining the ICTY’s impact would enable us to avoid the potentially distorting effect of studying a single-country court, such as the International Criminal Tribunal for Rwanda or the Special Court for Sierra Leone.

This report sets forth our findings about the ICTY’s impact in Serbia; later reports will address its impact in Bosnia-Herzegovina and Croatia.

The Open Society Justice Initiative is an operational program of the Open Society Institute (OSI) and pursues law reform activities grounded in the protection of human rights, and contributes to the development of legal capacity for open societies worldwide. 

Professor Diane Orentlicher serves as special counsel for the Open Justice League as well as being a Professor of Law at American University Washington College of Law.

United States of America v. Omar Ahmed Khadr

Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier.  The ruling was written by Peter E. Brownback III, COL, JA, USA, Military Judge. 

The full ruling on the motion can be found here:  Download ruling_us_v_khadr_d0222.pdf

The Right Way to Pressure Beijing

By:  William F. Schulz

The full version of this article was originally published by Foreign Policy and is available on their website.  This abstract is published with the permission of its author and Foreign Policy.

When the U.S. Congress recently passed a resolution calling on Beijing to end its repression of dissent in Tibet and open a dialogue with the Dalai Lama, a Chinese spokesperson declared that the resolution had “seriously hurt the feelings of the Chinese people.” Nor was this the first time the Chinese had expressed emotional distress at some political gesture. Everyone from the Icelandic singer Björk, who shouted “Tibet! Tibet!” at the end of a concert in Shanghai, to Canadian Prime Minister Stephen Harper, who met with the Dalai Lama in Ottawa, has been accused of hurting the feelings of the Chinese. Indeed, the Chinese might be the only people who regard the rantings of CNN’s Jack Cafferty, who referred to the Chinese government as “goons and thugs,” as worth taking seriously. Nerves this sensitive bespeak either a severe case of adolescent angst or a revealing insight into national character, or both. It is hard to imagine Vladimir Putin or Robert Mugabe, or George W. Bush for that matter, confessing to having hurt feelings about anything, much less the kind of symbolic ephemera that seem to regularly rile the Chinese.

That the Chinese take symbolism so seriously, however, provides a rare opening for those who care about human rights. There are, after all, only a limited number of ways in which human rights groups or Western governments can influence China on civil and political rights. Formal diplomatic entreaties usually yield shallow results. Trying to isolate the world’s most populous country is not an option. Economic sanctions that worked against apartheid South Africa and maintain at least nominal pressure on countries such as Burma and Zimbabwe would be fruitless against the world’s second-largest economy. Military intervention to stop human rights violations is unthinkable.

William F. Schulz, a senior fellow in human rights policy at the Center for American Progress, was executive director of Amnesty International USA from 1994 to 2006. He is the editor of The Future of Human Rights: U.S. Policy for a New Era (Philadelphia: University of Pennsylvania Press, 2008).

Let Games Go On, Without Fans

By:  David Scheffer

This article was originally published by The Chicago Tribune and was republished here with the permission of the author.

A Spectator Boycott Could Send China a Message

The intensified assaults on human rights at home and abroad by the Chinese government as it prepares to stage the Summer Olympics demand more than diplomatic scolding and torch-dousing protests in London, Paris, San Francisco and beyond. Sports fans planning on occupying stadium seats at the Beijing Olympics in August should stay home and shame China's repressive leaders with a spectator boycott.

This may seem a strange plea for someone from Chicago, which is competing to host the 2016 Summer Olympics. But the time has passed when egregious assaults on human rights elsewhere in the world should intimidate Chicago into silence at a time when our voices must be heard.

China has effectively reneged on its commitment to the International Olympic Committee in 2001 to protect human rights.

After more than half a century of Chinese repression, Tibetans have rushed to the streets. Violence and killings have resulted. The crackdown on Chinese human-rights activists and lawyers, political dissidents, writers, journalists, Internet users, religious worshipers and environmental advocates continues.

Abused migrant construction workers and uncompensated landowners are the brick and mortar of the Olympic stadiums in Beijing. China's legal system remains incapable of redressing human-rights violations and ensuring due process.

Although China was inexplicably removed from the "top 10" list of violators in the State Department's recent annual report on global human-rights conditions, the report still skewers China on its overall record.

China's anemic efforts to influence Sudan to stop atrocities in Darfur show few results. Hundreds of thousands suffer and die under the yoke of Khartoum's ethnic cleansing campaign. The giant Chinese oil and industrial investments in—and conventional arms sales to—Sudan trump human rights. Crimes against humanity appear imminent in South Sudan, and yet Beijing's influence to head it off appears nonexistent.

After seven years of continued repression at home and complicity abroad, the verdict is in. Any cosmetic effort by the Chinese authorities to enhance human-rights protection between now and the Olympics should be viewed for what it is: a cynical, temporary ploy to appease critics and reap the rewards of the Games.

Despite the unfortunate selection for the 2008 Olympics of Beijing, with its toxic mix of human rights violations and pollution, the athletes should compete (air quality permitting), and the international media should cover the events.

Athletes should not be manipulated with political jousts. Their quest for excellence in sports is the essence of the Games, and no one should deny them their bids for medals. Demands that national teams boycott the Olympics would be unfair to the athletes.

But the athletes, who instinctively should stand up for human rights, could advise their national fans to stay home and cheer from afar.

There is no justification in an age of instant video and Internet access about Olympic events for foreign spectators to invest in the Chinese economy and give credence to the government's assault on human rights. Although there has never before been a widespread spectator boycott, even at Adolf Hitler's 1936 Berlin Olympics, international human-rights law has evolved to the point of compelling one now.

More than a half-million foreign visitors are expected to attend the Beijing Olympics. Of the 7 million tickets for sale, about a quarter of them are slated for foreigners. About 53,000 tickets already have been sold to Americans. Each overseas spectator is expected to spend at least $1,100 in China while visiting, excluding air travel, most hotel expenses and costly exchange rate fluctuations.

Well-intentioned people often ask how they can make a real difference on the human-rights battlegrounds of our times. They should boycott the Beijing Olympics, even if it means losing some money on their tickets and deposits. (Beijing will fill the stadiums with Chinese anyway.) Cancel the hotel rooms and the plane reservations.

President Bush—who foolishly pledged to attend the Olympics—should lead a boycott of the opening ceremony by heads of state and other foreign officials. He has the perfectly legitimate excuse that there is not much time left to restore a collapsing domestic economy, forge Middle East peace, salvage the NATO effort in Afghanistan and help rebuild homes in Katrina-ravaged New Orleans.

Corporate sponsors should review whether their advertising money is being used to support China's economy or whether they can limit their funding solely to media coverage and direct support for individual athletes and teams.

No admirer of the Olympic Games should stand in Beijing and explain why he or she is investing in an economy—and giving credibility to a government—that fuels human-rights abuses and atrocity crimes with a cynicism that knows no bounds.

David Scheffer is a professor and director of the Center for International Human Rights at Northwestern University School of Law. He is a former U.S. ambassador at large for war-crimes issues.

David Scheffer is a professor and director of the Center for International Human Rights at Northwestern University School of Law.  He is a former U.S. ambassador at large for war-crimes issues.

David M. Crane's Remarks to House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security

David M. Crane is a Professor of Law at Syracuse University and a former Founding Chief Prosecutor in the Special Court for Sierra Leone.  Professor Crane's remarks are in support of the Child Soldiers Accountability Act of 2007.

Mr. Chairman thank you for this opportunity to address this committee on what I feel to be an important international issue that impacts our country and its security and that is the scourge of children used as soldiers in armed conflict.  Before I begin I would like to note that I have submitted my testimony in writing earlier and would ask that it be submitted into the record at this time.  Thank you.

I would like to begin with a quote from an important report to the Secretary General of the United Nations in 1996 regarding the child soldier problem we as civilized nations face today and for which we are considering this important legislation, S. 2135, the Child Soldiers Accountability Act of 2007. 

These statistics [related to the impact of armed conflict on children] are shocking enough, but more chilling is the conclusion to be drawn from them:  more and more of the world is being sucked into a desolate moral vacuum.  This is a space devoid of the most basic human values; a space in which children are slaughtered, raped, and maimed; a space in which children are exploited as soldiers; a space in which children are starved and exposed to extreme brutality.  Such unregulated terror and violence speak of deliberate victimization. There are few further depths to which humanity can sink.

For the first time in history those who bear the greatest responsibility for war crimes, crimes against humanity, and other serious violations of international humanitarian law that took place during recent wars have been charged with the use of child soldiers under the age of 15 into an armed force.

The use of children in armed conflict is an age old issue. Modern international norms, however, have identified and outlawed their use. International tribunals, such as the Special Court for Sierra Leone, of which I was its founding Chief Prosecutor, are now on the cutting edge of international criminal law in holding accountable those warlords, commanders, and politicians who turn to children, some as young as six years old, to carry out orders that in some cases result in war crimes and crimes against humanity. Only in the past ten years has the international community begun to grapple with this international problem.

I have seen atrocity beyond description perpetrated by child soldiers while seeking justice for the victims of the ten year armed conflict in Sierra Leone started by three heads of state:  Muammar Ghadaffi of Libya, Blasé Campare of Burkina Faso, and of course Charles Taylor of Liberia (indicted by me and sitting in the dock on trial for 11 counts of war crimes and crimes against humanity, to include the unlawful recruitment of children under the age of 15 into an armed force, an historic first).  This conflict destroyed an entire generation of children, perhaps as many as 35,000 in that small struggling country.

A favourite tactic to induce children to join their force was for the rebels to move in and surround a village.  The children were made to kill their parents and then were driven into the bush and forced to serve as soldiers, in many instances for years.  The numbers are not fully known, but it was in the thousands.  These children, ranging from six to eighteen years of age, roamed the battlefields hopped up on cocaine or marijuana destroying their own country.  Over time the various warring factions became their home and their families. Many forgot their real names or even where they came from. All sides to the conflict in Sierra Leone used children. 

A forty-two year old secretary, living in Sierra Leone, told a Human Rights Watch researcher, in an interview on May 20, 1999, about child soldiers used in the invasion and destruction of Freetown in January of that same year:  We feared them.  They were cruel and hard hearted; even more than the adults. They don’t know what is sympathy; what is good and bad.  If you beg an older one you may convince him to spare you, but the younger ones, they don’t know what is sympathy, what is mercy.  Those who have been rebels for so long have never learned it. 

When the conflict staggered to its bloody conclusion in 2002, just shortly before my arrival in country, an entire nation lay in ruins.  These child fighters found themselves with no families, little to no education, and a society unable to assist them in starting to rebuild their lives.  Many were physically and psychologically damaged.  The lost generation of Sierra Leone now sits by pocked-marked roads with no hope, waiting for the next “Pa” to lead them back into the only life they know--fighting, raping, pillaging, and murdering their fellow citizens.

Between 1986 and 1996 over two million children were killed in armed conflict. There have been countless more killed since then, many of them in places such as Sierra Leone.  Only when the rule of law is enforced will abusers of children be held accountable at the international level (and hopefully the domestic level) thus assisting in ending this tragic international crime. It is time for the United States to assist in making this happen.

The Child Soldiers Accountability Act of 2007, passed by the United States Senate in December of last year, is an important signal to the world that this country will not tolerate those who recruit mere children into armed forces of whatever kind.  Moreover, it gives our government the legal tools to deal with those who are in this country or seek to enter this country to deal with them by prosecution, exclusion, and/or deportation.  This is not a partisan issue, this is needed legislation.  I respectfully urge this subcommittee to champion this important bill and support its passage.

I will close with a story of thousands that I personally was involved with in my three years in West Africa relating to one child soldier:

It was a clear hot day.  The meeting hall in the school for the deaf located up country near Makeni rippled with the heat of over five hundred persons.  I had been speaking to the students, faculty, and others in one of my many town hall meetings I conduct throughout Sierra Leone.  The purpose of the meetings are to provide a vehicle for the people of this small and fragile nation to talk to their Prosecutor about the war, the crimes, their pain and other issues related to our work.  As I finished answering a question from a student near the front, a shy and small arm was raised in the middle of the hall.  I walked back to the student.  He meekly stood up, head bowed and he mumbled, loud enough for those around him to hear, “I killed people, I am sorry, I did not mean it.”  I went over to him, tears in my eyes, and hugged him and said, “Of course you didn’t mean it.  I forgive you.”

Thank you, Mr. Chairman for this opportunity to address you today about holding accountable those who destroy children’s lives by recruiting them into armed forces. I welcome your questions.

The remarks can be found complete with footnotes at Download opening_remarksthe_house_committee_on_the_judiciary.doc

A "Bout" of Russian Terror

By Ed Royce
Representative Ed Royce. California Republican, is ranking member of the Terrorism, Nonproliferation and Trade Subcommittee.
 

Maybe Viktor Bout got complacent. Accustomed to profiting in the world's roughest places while brazenly defying law enforcement, this notorious gun runner fell three weeks ago, arrested by Thai authorities in a Drug Enforcement Agency sting in Bangkok. An arms smuggling conviction would put this very dangerous man out of business. He is a survivor, though, and we should not breathe easy until an extradited and shackled Mr. Bout hits United States soil.

A former Soviet pilot dubbed the "Merchant of Death," Mr. Bout has fueled many brutal civil wars, mainly with former East Bloc state arsenals. In the 1990s, he dealt weapons to the several sides fighting in the Democratic Republic of Congo and rebels in Angola, breaking international arms embargoes. Some have linked him to the Rwandan genocide. One good customer was the former Liberian president, Charles Taylor, who relied on Mr. Bout to arm his reign of terror in West Africa, which landed Taylor in The Hague to face war crimes charges.

This man has plagued four continents. He simultaneously armed the Taliban and the Northern Alliance; he had dealings with Hezbollah and the FARC in Colombia. Indeed, Mr. Bout thought he was negotiating a deal to provide the FARC with millions of dollars in arms when he was arrested. The deal included 100 advanced Russian-made shoulder-fired missiles, capable of downing an aircraft. Federal prosecutors in New York are seeking his extradition to stand trial for providing material support to this Colombian terrorist organization.

Viktor Bout is the model. Unfortunately there exists a class of rogues: gray-area figures who help destroy states and the rule of law while avoiding scrutiny. He and other smugglers are not small-timers. Mr. Bout has amassed a logistical capability that rivals many NATO countries, operating dozens of planes. Today the paramount concern is that his type of global delivery system might transport a nuclear weapon. Their credo is anything for money. The arrest of this man, the best known of the lot, hopefully signals a new alertness to the dangers poised by these networks.

The United States and others have spent much to build stability in Africa. We have been successful in Sierra Leone and Liberia. Millions of lives have been saved by ending these brutal conflicts. But stability is very fragile; all it takes is a few dozen rebels armed by the likes of Viktor Bout to enflame a rebuilding country. Taking on the Bouts of the world would better protect these investments.

Extradition experts give Mr. Bout only a fifty percent chance of facing justice in the United states, though. Thai police have said Mr. Bout's extradition would have to wait until he was tried in Thailand. Meanwhile, the Russian government reportedly is pressuring Thai authorities to set him free. For years, he has operated out of Moscow, in the open, despite an Interpol arrest warrant. He has ties to Russian intelligence. Beware of Russian promises to "try" Mr. Bout at home.

The diplomatic instinct in the State Department may be to play nice with Russia, especially since the Bush administration seeks a long-term agreement on U.S.-Russian relations. Recommendations to press Moscow on Mr. Bout years ago reportedly were set aside to win its cooperation in the war on terrorism. But this man is a terrorist. And there is nothing to be gained from acquiescing to yet another Russian effort at undermining the rule of law. We should be doing all we can to counter any Russian pressure on Bangkok. The arrest of Viktor Bout may signal an intolerance of an intolerable type of character. With a deadly past and dangerous future, he must face justice. Thai authorities should be commended for their cooperation, but only when Mr. Bout is securely on his way to our shores, which given likely Russian machinations, can't happen fast enough.

This article was originally published by The Washington Post and was republished here with the permission of the author.  The original article can be downloaded here:  Download wt.4.1.08.Royce oped.A Bout of Russian terror.pdf

The Responsibility to Protect and the International Criminal Court: America's New Priorities

R2P Coalition and the Center for International Human Rights Final R2P-ICC Conference Report

Over the course of the past five years, the international community has adopted, with varying degrees, two related means for responding to and preventing the atrocity crimes of genocide, crimes against humanity, war crimes and ethnic cleansing. The first is the “Responsibility to Protect Doctrine” (R2P), which the U.N. General Assembly adopted - with U.S. endorsement - in September 2005. R2P mandates effective responses to widespread assaults on civilian populations at the national level first but, if necessary, through collective international action. Many focused on R2P implementation have sought to apply the doctrine in country specific cases and have considered a range of political, economic, diplomatic, and military intervention options. What has been absent from these debates, however, is  any serious discussion on the judicial arm of R2P, i.e., when an international judicial response can either
support or replace military options.

In order to move away from ad hoc, unilateral, and politically-driven military and diplomatic interventions to an enduring and legitimate judicial deterrence and enforcement, policy makers and others considering R2P-appropriate actions for atrocity crimes should look to solutions within the international criminal justice system. More specifically, R2P supporters should seek, when appropriate, to imbed the R2P doctrine in the global judicial path being forged by the International Criminal Court (ICC), a fresh hallmark in international relations for responding to and preventing future deadly conflicts. R2P and the ICC are both guided by the same moral commitment to address and ultimately end atrocity crimes, and that moral commitment is the nexus that should underpin advocating necessary changes in the national discourse of U.S. foreign policy.

The next American presidential administration which begins work in 2009 provides an opportunity to reaffirm key priorities for America: justice, the rule of law, human rights, and the end of the most heinous crimes known to humankind. The groundwork has been laid already. In September 2005, the United States joined consensus on the U.N. General Assembly’s adoption of the World Summit Outcome Document, which articulated R2P. Shortly thereafter, in Security Council Resolution 1674 of April 26, 2006, which focused on the protection of civilian populations, U.S. officials endorsed reference to the R2P provisions of the World Summit Outcome Document as critical to that objective. Until 2001, the United States had a relatively positive history of involvement with the ICC. Throughout the U.N. negotiations on the Court that formally began in 1995 and culminated with the Rome Statute on the ICC in July 1998, the United States strongly supported the establishment of a permanent international criminal tribunal that would bring to justice those responsible for the commission of atrocity crimes. Though the United States opposed the final draft of the Rome Statute due to certain issues not being properly addressed in that draft, during 1999 and 2000 the United States actively participated in further
negotiations and joined consensus on the Rules of Procedure and Evidence and on the Elements of  Crimes adopted in June 2000. On December 31, 2000, the United States signed the Rome Statute of the ICC. But the Bush Administration determined that it would not support the Court and on May 6, 2002, President George W. Bush took the unprecedented step of denying the enforceability of the U.S. signature on the Rome Statute.

Nonetheless, there are alternative views that American engagement with the Court remains important for the long-term success of the Court and for the achievement of U.S. foreign policy objectives. On December 5-7, 2007, the Center for International Human Rights at Northwestern University School of Law and the Responsibility to Protect Coalition convened a conference, entitled The Responsibility to Protect and the International Criminal Court: America’s New Priorities, with those aims in mind.

Fifty-five leading experts from the ICC, the International Criminal Tribunal for the Former Yugoslavia, academia, nongovernmental organizations, the military, religious communities, and the federal court system attended the conference. Keynote addresses were delivered by Samantha Power, Harvard University’s Anna Lindh Professor of Practice of Global Leadership and Public Policy, Luis Moreno-Ocampo, chief prosecutor for the International Criminal Court, John Prendergast, director of the
ENOUGH Project, Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s Ambassador to the United States and the former President of the Assembly of States Parties of the ICC, and U.S. Army General Wesley Clark (ret.), former NATO Supreme Allied Commander.

The goal of the conference was to formulate recommendations on how the United States should take steps domestically and with other governments and international institutions to advance the R2P principle through the work of the ICC. Within this framework, the conference focused on three issues:

1. The Political Strategy for American Cooperation/Participation re ICC
2. The Military Strategy for American Cooperation/Participation re ICC
3. The Political and Military Strategy for Development of an International Marshals Service

This report is the outcome of the conference. It lays out specific recommendations on how to raise awareness on the international justice elements of R2P, develop constructive support for U.S. participation in the ICC, and lay the foundations for an institutional enforcement mechanism for the Court.

The full report can be viewed here:  Download r2picc_conference_reportmarch_20081.pdf

The Scourge of Child Soldiers: Lost Generations of Children Around the World are Victims of Warlords and Tyrants

By: David M. Crane
Professor at Syracuse University College of Law and Former Founding Chief Prosecutor for the UN Court for Sierra Leone (2002-2005)

They stood in the warm sun of the dry season. Seasoned combat veterans of years of conflict, their eyes darted nervously back and forth, glancing at me from time to time, not sure what to make of the situation they found themselves in. The breeze stirred the lush green trees of the bush upcountry in Sierra Leone, near Kabalah. United Nations peacekeepers fanned out around the perimeter nervously holding their weapons at high port.

The Chief Prosecutor of the Special Court for Sierra Leone was about to hold a town hall meeting with several hundred child soldiers who were now back in school trying to make some sense of their ruined lives. Standing before the prosecutor were murderers, rapists, mutilators and pillagers of all kinds, their average age around 15.

I took the bullhorn from one of the peacekeepers and asked them in Krio how they were all doing. They all mumbled "body fine." I stepped among them and for almost two hours talked to them and listened to them, developing a sense of what it must be like to be a member of what I call the lost generation of children in West Africa; children forced to kill their parents and then rip their way across the countryside in a whirlwind of terror the likes of which civilization rarely has seen, if at all.

They were afraid of me, and frankly I of them. These young men were clearly concerned that I was going to have them all arrested for war crimes and crimes against humanity. They knew what they had done and they also knew that I was well aware of the pain they had caused.

On that November day in 2002, I stood before them and told them I would not prosecute any child for what they may have done in the horror story that was Sierra Leone over those many years. I called them victims not criminals. Many wept, others stood open-mouthed, disbelieving what they were hearing. To many this was the only positive development in their lives. They were being given a chance to live, to make something better for themselves.

Though mandated within the tribunal's statute to prosecute a child who committed a war crime between 15 and 18 years of age, I chose not to as I felt that no child had the mental capacity to commit mankind's most serious crimes. These truly were victims of cynical warlords, tyrants and thugs exploiting their childhood for their own personal criminal gain.

I felt that international law was clearly on my side. Children found in these internal conflicts are as much the victims as the victims they abused. What needed to be done was to hold accountable the leadership that created the policy to recruit and enlist children as young as 6 years old into the various militia groups that fought in West Africa. This we did and for the first time in history, African warlords were tried and convicted of creating a lost generation of children, the child soldiers of West Africa.

The scourge of child soldiers is not a new phenomenon, however; in the past 20 years millions have been recruited and millions have been casualties of war. The United Nations has recognized this and has begun to take corrective action. The International Criminal Court has followed our example and is actively investigating and charging individuals for what they are doing to children in times of armed conflict. The trend is generally positive, yet there are wrinkles.

It is important to understand that child soldiers are found around the globe, not just in Africa. Children are recruited and brainwashed into fighting where instinctively they recoil. This is taking place in Iraq and in Afghanistan.

The "global war on terror," as the United States characterizes its fight against various jihadist factions, has netted children found in combat. Like their cousins in West Africa, they were enlisted or recruited under duress and forced to fight or be killed themselves. The net has them detained far from home in an infamous place called Guantanamo.

This year we will see the trial of the first child ever to be prosecuted as a war criminal by the United States in Guantanamo. The child, now a young man, was 15 at the time of the alleged crime he is charged with committing, yet the facts show that he had no choice after being taken by his family from Canada to Afghanistan several years ago. The child was very young and he had little option but to go with members of his family.

That child was Omar Khadr, a Canadian citizen. At 15 he was no more legally responsible for any crimes committed in combat than the children of Sierra Leone, which I chose not to prosecute. Omar Khadr is a victim of war.

The charges against him should be dropped and he should be sent home where he can be rehabilitated, not punished. Defence counsel alleges he is mentally years behind his now 20 years of age, as he has been incarcerated in a detention camp since 2002. One asks where is the outrage in all of this by right-thinking people? France has called for Khadr's release. Where is Canada?

On Feb. 12, the United Nations Security Council held an open debate on what type of harsher measures need to be used to discourage the use of children as soldiers, like Omar Khadr. This is an important discussion to be sure. The United Nations has reported that 58 parties to armed conflict in 13 countries are in violation of international standards that prohibit the use of children in combat. These countries can be found in several continents.

Just think of the suffering of children whose lives have forever been changed, even ruined. These lost generations of children will come back to haunt us all as they grow into dangerous adults, unable to read, write, having no sense of right or wrong, and in many instances don't even know who they really are or where they came from.

Have you ever looked into the eyes of a child who has no hope? I have and it will stay with me the rest of my life. I'll bet if I looked into the eyes of a young Canadian named Omar Khadr, I'd see the same sad look of a child who has no hope.

This article was originally published in The Star and republished here with the permission of the author.

Unforgivable Behavior, Inadmissible Evidence

By:  Morris Davis
New York Times Op-Ed Contributor

This article was originally published by the New York Times and was republished here with the permission of its author.

WASHINGTON, D.C., United States - Twenty-seven years ago, in the final days of the Iran hostage crisis, the C.I.A.'s Tehran station chief, Tom Ahern, faced his principal interrogator for the last time. The interrogator said the abuse Mr. Ahern had suffered was inconsistent with his own personal values and with the values of Islam and, as if to wipe the slate clean, he offered Mr. Ahern a chance to abuse him just as he had abused the hostages. Mr. Ahern looked the interrogator in the eyes and said, "We  don't do stuff like that."

Today, Tom Ahern might have to say: "We don't do stuff like that very often."  Or, "We generally don't do stuff like that."  That is a shame. Virtues requiring caveats are not virtues. Saying a man is honest is a compliment. Saying a man is "generally" honest or honest "quite often" means he lies. The mistreatment of detainees, like honesty, is all or nothing: We either do stuff like that or we do not. It is in our national interest to restore our reputation for the latter. (All opinions here are my own, and do not necessarily reflect those of the Air Force or Defense Department.)

Some accounts of detainee abuse in the war on terrorism are overblown, but others are not. After humiliating prisoners at Abu Ghraib by forcing them to strip naked and lie in a pile like a stack of firewood or simulating the drowning of detainees to persuade them to talk, we can no longer say we don't do stuff like that and we do not have to look far to see the damage. The disclosure last month of a manual for Canadian diplomats listing the United States as a country where prisoners might face torture, referring specifically to Guantánamo Bay, Cuba, was an embarrassment on both sides of the border.

During the Persian Gulf war in 1991, the Iraqi armed forces surrendered by the tens of thousands because they believed Americans would treat them humanely. Our troops reached the outskirts of Baghdad in 100 hours and suffered fewer than 150 combat-related fatalities in large part because of these mass surrenders.

Would it have been different if the perception of us as purveyors of torture and humiliation existed back then? Would tens of thousands of Iraqis have put down their weapons if they believed they were going to be humiliated, abused or tortured, or would they have fought? Had they chosen to fight, the war would have lasted longer and cost more and casualties would have skyrocketed. Our reputation in 1991 as the good guys paid dividends and supported our national interests. We must regain that reputation.

We can start by renouncing cruel, inhuman and degrading treatment of detainees and unreservedly committing to uphold the Detainee Treatment Act, which passed Congress in 2005 but was diluted by a presidential signing statement. We must also reaffirm our adherence to the United Nations Convention Against Torture, which the Senate ratified in 1990.

Just as important, we need to come to grips with the practice known as waterboarding, the simulated drowning of a person to persuade him to talk. There was some progress in recent weeks: the C.I.A.'s director, Gen. Michael Hayden, told Congress that the practice may be illegal under current law; the director of national intelligence, Michael McConnell, told a reporter, "Whether it's torture by anybody else's definition, for me it would be torture"; Attorney General Michael Mukasey, after being asked if waterboarding would be torture if done to him, said that "I would feel that it was"; and on Wednesday, Congress passed a law forbidding the C.I.A. to use waterboarding and other harsh techniques.

Why a few others in positions of power still find it so difficult to admit the obvious about waterboarding is astounding. We can never retake the moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to us.

Once we condemn and stop all waterboarding, what do we do in cases where it was conducted?  An obvious step is to prohibit the use of evidence derived by waterboarding in criminal proceedings against detainees. Regardless of whether the technique has produced actionable intelligence, it did not produce reliable evidence with a place in our justice system. Imagine the outrage if the Iranian government tied down an American, convinced him the choices were to cooperate or die, and then used his "confession" as evidence in a death-penalty trial.

My policy as the chief prosecutor for the military commissions at Guantánamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.

Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue - efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction.

At a Senate hearing in December, the legal adviser for the military commissions, Brig. Gen. Thomas Hartmann, refused to rule out using evidence obtained by waterboarding. Afterward, Senator Lindsey Graham, who is also a lawyer in the Air Force Reserves, said that no military judge would allow the introduction of such evidence. I hope Senator Graham is right about military judges, and it is unfortunate that any might be put in a position where he has to make such a decision.

Regrettably, at a Pentagon press briefing last week announcing that Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and five others had been charged and faced the death penalty, General Hartmann again declined to rule out the use of evidence acquired through waterboarding. Military justice has a proud history; this was not one of its finer moments.

That is not to say those subjected to waterboarding get a free pass. If the prosecution can build a persuasive case without using the coerced "confession," then whether a defendant endured waterboarding is immaterial in determining guilt or innocence.

There are some bad men at Guantánamo Bay and a few deserve death, but only after trials we can truthfully call full, fair and open. In that service, we must declare that evidence obtained by waterboarding be banned in every American system of justice. We must restore our reputation as the good guys who refuse to stoop to the level of our adversaries. We are Americans, and we should be able to state with conviction, "We don't do stuff like that."

Morris Davis, an Air Force colonel, was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from 2005 to 2007.