Bruce Broomhall
International Justice Coordinator, Lawyer's Committee for Human Rights

I don't think in terms of lists, I don't think about who we should pursue. I look at this in purely legal terms: we need to clarify and advance legislation. Governments need to perceive these cases as legitimate, driven by legal--not political or vindictive--factors. The process must be transparent, accessible to all, and open to critique.

So I approach the issue more conceptually: we must open a legal space in which these atrocities can be addressed, adjudicated. We want to move these cases outside the normal calculus of diplomacy and politics. In this regard, if the ICC had been up and running, it would have saved Jack Straw a lot of trouble. Countries could offload politically hot issues, but they need to be confident that there are rules and safety valves. The message must be unambiguous: legality is the prime concern, and certain acts, like torture and genocide, are simply beyond the pale. With universal jurisdiction, it doesn't matter if you are a head of state, or former head of state; if the charges are solid, and the evidence is credible, you will be vulnerable to prosecution. Like anyone else.

The [1998] Rome Statute [which laid the groundwork for the ICC] and Pinochet's arrest definitely marked a new legal moment. For one thing, it showed how much is not in place, not only in terms of legal structures, but knowledge, training of lawyers and others. A whole series of projects got underway on universal jurisdiction, for example. At The Lawyers Committee on Human Rights, we have been doing seminars on the subject in the context of the ICC, and it's been instructive to see how much confusion there is, especially in regions of conflict. The initial reaction, particularly, though not exclusively, among military officers, is that universal jurisdiction is illegitimate, forever attached to politics. In our seminars, the military participants are initially suspicious, even hostile. But after about two days, I tend to find that their views have softened. They come to see that the ICC is fraught with concessions, and that universal jurisdiction is not what they thought it was.

It is true that in many countries, prosecutors are under quite tight political control. This is something the ICC can remedy. Another major misapprehension we see is that the ICC will fatally undermine sovereignty, interfere with democracy. It's imperative to make the distinction between autonomy and sovereignty in an international context in which, again, certain acts are simply inadmissible: by ratifying human rights treaties, incorporating universal jurisdiction into domestic legislation, and approving the ICC, states will have consented to participate in a rigorous, transparent system of international justice.

It is also important to understand the military position. And here we come to a question of culture, the need for consciousness-raising on both sides. Perhaps the biggest issue is that military and police are often charged with maintaining internal security. And military people argue, in good faith, that there are certain exigencies that go with the job, that in order to maintain order in difficult places, they need a margin of leeway.

We need to consider when impunity and amnesty might be legitimate; when a truth and reconciliation commission might be a sufficient legal process. This whole thing is about a slow, coming-to-understanding of the law.

It will take a couple of decades. But that's how history works. We need precedents to establish the norm that certain actions will not be tolerated; we must demonstrate that the process is driven by legal concerns and constrained by legal structures.

The Pinochet arrest was extremely important, in itself, and in terms of its effects in Chile. And even though it has had a fatal setback, Habre's arrest is a huge victory. We may now see progress in domestic law reform in Senegal. In fact, the failure itself may prove to be the impetus for reform. That this is happening below the Sahara is trememdously important. Let it be noted that Senegal was the first country to ratify the ICC.

Ultimately, the real work will be done in domestic forums. The ICC will only be able to try about twenty cases a year. It simply won't have the capacity to do more. So the crucial link to be forged is between international and domestic law.

Bruce Broomhall is the International Justice Coordinator, Lawyers Committee for Human Rights, New York.


Reed Brody
Director of Global Advocacy, Human Rights Watch

It's essential to distinguish between political responsibility and direct criminal responsibility. To say that Henry Kissinger supported Pinochet, helped him get into power and stay there while atrocities were going on is one thing. That is not necessarily a crime under international law. We do have to examine political responsibility — it's not enough to go after Pinochet without also examining the U.S. role in Chile, or to go after Habre without also studying the political role played by France and the U.S.. But direct criminal responsibility under international law must be proven. If it is, then the individuals in question should be called to account.

As we look over the list, there are numerous instances where tyrants have been granted asylum or safe passage out of their own country. Sometimes it's pure cynicism, indifference, and realpolitik, and sometimes it's done to stop the bleeding. Mengistu originally went to Zimbabwe because Jimmy Carter arranged it, to keep him from doing further harm. But, by and large, history shows that these guys leave when their time is up, when their support at home is evaporating. These individuals who amass great power, history shows us they fall.

In terms of "gettability," I would say that, of those on the list, Stroessner has the most to worry about. In May 1999, Human Rights Watch started talking to groups in Brazil, notably with Marcos Bilim, head of the Human Rights Committee in the National Assembly. That parliamentary Committee drafted a request for Brazil to prosecute Stroessner. There hasn't yet been a response [from the courts], but the idea has been articulated, the seed has been sown.

We don't exclude the possibility of prosecuting lower-ranking criminals against humanity. Heads of state are not the sole perpetrators of these atrocities, which have no statute of limitations. If we were to prosecute a police captain, for example, that would send a message to a whole class of individuals. In fact, Human Rights Watch considered prosecuting a Turkish police officer who periodically travels to Germany to visit his cousin. He could be arrested there. But, after consulting with human rights professionals in Turkey, we realized that the action would backfire. It would provoke a huge wave of Turkish nationalism, and very likely a backlash against Turks in Germany. So we decided not to pursue that case.

While prosecutions must not be politically motivated, we feel it's important to bring cases that create political consensus, cases where the victims, and the citizens of the country where the crimes were committed, are strongly behind the action. That is why Human Rights Watch was so interested in the Habre case: it was the first transnational human rights prosecution in Africa, the first south-south case, if you will. It is important to break the paradigm of northern colonial powers judging the south. Moreover, this case was brought by victims, who traveled to Senegal — where Habre has lived since 1990 — in order to testify.

It was devastating when in July 2000 Senegalese courts dropped the charges against Habre, in a move that was clearly politically engineered. Habre is once again secure in his country of exile. Still, even when prosecutions fail to culminate in convictions, they nonetheless have an important effect. To quote Louise Arbour, 'it makes the world a smaller place for these people.' They cannot move about freely. Habre will not be leaving Senegal any time soon. The effort to prosecute him is tremendously important, because all of the previous precedents have been in Europe.

In contemplating the relative merits of criminal vs. civil prosecutions, civil cases can only be brought in the U.S., if I'm not mistaken. Criminal cases require the daunting mechanism of the state, and so can be harder to get off the ground. The Pinochet and Habre criminal prosecutions were exceptions, in that they were brought originally by victims [not governments].

Criminal prosecutions are more punitive. It's justice. If we don't prosecute, impunity creates contempt for the law. Unless we prosecute, the law will never enter the calculus of repression. Prosecuting is not only about the past. It's about the future. It's saying, 'Today's it's Pinochet, tomorrow it could be you.'

Reed Brody is the Director of Global Advocacy, Human Rights Watch, New York

William Bourdon
Secretary-General of the International Federation of Human Rights

(Mr. Bourdon and I corresponded, via e-mail, in French. His comments appear below, in my translation. — MF)

It is important to emphasize that virtually all of the predictions made at the beginning of Augusto Pinochet's arrest in London on October 16, 1998, were proven wrong. In Chile, many political figures — and not just those from the conservative camp — implored London to release Pinochet out of fear that there would be a civil war or, at the very least, a destabilization of democracy. Exactly the opposite happened.

For their part, international human rights organizations and other observers held that it was absolutely impossible to ever prosecute Pinochet in Chile. Exactly the opposite happened. In fact, what we saw was a kind of virtuous boomerang effect, in which European judges awakened their Chilean peers to the vigor of international law, impelling them, in effect, to reclaim their natural prerogatives.

So the Pinochet Affair cleared the way for very significant political effects.

The conceptual developments are much less spectacular, when we bear in mind that the Nuremberg Tribunal already established that no one, regardless of official position, is exempt from prosecution for crimes against humanity. Louise Arbour [Chief Prosecutor, International War Crimes Tribunal for the former Yugoslavia] confirmed this when, on May 24, 1999, she issued international arrest orders for five individuals, including Slobodan Milosevic, President of the Federal Republic of Yugoslavia.

The real conceptual leap will come when a criminal head of state, traveling on government business and/or at the invitation of a foreign chief executive, can be arrested by a domestic judge, rather than by an international tribunal. This eventuality, articulated in Article 27 of the Statute of the International Criminal Court, is met today with great resistance.

A direct legal consequence of Pinochet's detention was the February 2000 arrest in Dakar of Chad's ex-dictator, Hissein Habre. [According to a 1992 Truth Commission, Habre's regime is responsible for 400,000 political murders and 200,000 counts of torture.] The [July 4] reversal of charges by the Chambre d'Accusation [Indicting Chamber] was a terrible setback; it remains to be seen whether the Cours de Cassation [Court of Appeals] will uphold that bad decision. In the present climate, it would take a great deal of courage for those judges to reinstate the charges.

The very incarnation of despotism and dictatorship in Africa, is Laurent Kabila, president of the Democratic Republic of Congo. There is no doubt but that he should be charged with torture, forced disappearance, crimes against humanity.

We must bear in mind that certain obstacles to international criminal prosecutions derive from the human rights culture we are trying to protect. For example, many NGOs oppose capital punishment and therefore must withdraw or withhold arrest orders if the tyrant would be subject to violence upon return to his native country. That is exactly the case with Mengistu, who would be executed if he were returned to Ethiopia.

A second obstacle is that the most serious crimes are often covered up through political alliances with other countries. This helps explain the resistance we saw in France 1995-96 to prosecuting some of the men responsible for the Rwandan genocide. Even though these individuals had fled to French territory and were clearly vulnerable under the UN Torture Convention, France did nothing. The fact is, certain French services had been involved in Rwandan affairs, with support at the highest levels.

A third obstacle is what we might call 'judicial chauvinsm.' In most countries — and I'm by no means excluding Europe — judges find it difficult to acknowledge the primacy of international law. They are still unfamiliar with the newest juridical developments related to the fight against impunity. Even if things have evolved in France and a few other countries, there is still a great deal to be done in terms of education, so that magistrates and judges will be up to date.

The fourth obstacle has to do with the lack of harmony between the judicial systems of different countries (a difficulty clearly demonstrated in the Pinochet prosecution.) This problem should essentially be solved by establishment of the International Criminal Court.

The most difficult task for an NGO, or any human rights organization, is how to establish a list of prosecutable crimes. Although suffering is universal, not all crimes are subject to universal jurisdiction. We must limit ourselves to those offenses that are clearly defined in ratified human rights treaties and conventions. The ICC Statute cites genocide (in Article 6), crimes against humanity (Article 7), war crimes (Article 8). My personal conviction is that we must make the best possible use of existing texts and legislation. It is morally reprehensible to lead victims to believe that everything is possible. In this regard, it must be said that the Pinochet case occasionally fueled unrealistic hopes.

I think that NGOs have a triple responsibility:

1. To be rigorous in their calls for, and execution of, international arrests, so that the process is not undermined by politics or ideology.
2. To help the "forgotten" victims of crimes against humanity break their silence. There are numerous ways to do this. In response to the atrocities committed in Sierra Leone, the Security Council has approved in principle the establishment of a Mixed International Tribunal, to be located in a neighboring country, and composed of magistrates from various nations. It is to be hoped that the victims of the crimes committed in Liberia will see a similar execution of justice.
3. To discourage Nations from interpreting human rights conventions in an overly restrictive and reductive way. To encourage more modern readings that will lead to a more ambitious pursuit of justice. As an example: in the Pinochet prosecution, Judge Bartle interpreted forced disappearance as an act of torture. That is not explicitly articulated in the UN Torture Convention, nor is it universally accepted at the international level. But one day it will be.

In spite of personal trauma, legal difficulties, and political complications, let it be said that all of the international human rights prosecutions pending in France, Switzerland, and Belgium have been brought, not by the Court, but by victims.

William Bourdon is the Secretary General of the International Federation of Human Rights, Paris.

Tom Blanton
Executive Director of the National Security Archive, Washington, D.C.

The list itself brings us to the interesting question about the ways in which many of these criminals find protection. Various countries are complicit here, as we have seen. I would advocate taking a rigorous look at the United States National Security Act of 1947, and its so-called "100 persons" provision, which allows us, every year, to bring in and shelter 100 individuals considered to be assets to our intelligence operations. Living here under that law is Haiti's Toto Constant. A small-fry compared to Cedrás, but still a leader in the death squads, Constant was on the payroll of the CIA, and is now in the Witness Protection Program. We really should have a detailed study of the "List of 100" for every year that the NSA has been in force. We have a right to know how that law has been used.

I would also like to see a list of vulnerable sitting heads of state, it being understood that these prosecutions would would be extremely difficult to obtain. On a scale of horror, China's Jiang Zemin, has to be mentioned for having created what is believed to be the largest gulag system in the world. In 1999, the Guatemalan Historical Clarification Commission made a finding of genocide against Ríos Montt, for the slaying of tens of thousands of Mayan Indians. Fidel Castro should be noted for extrajudicial killings from 1959-1961. And Saddam Hussein for gassing the Kurds.

Tom Blanton is the Executive Director of the National Security Archive, Washington, D.C.