[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ESTABLISHING A SYRIAN WAR CRIMES TRIBUNAL?
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JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON AFRICA, GLOBAL HEALTH,
GLOBAL HUMAN RIGHTS, AND
INTERNATIONAL ORGANIZATIONS
AND THE
SUBCOMMITTEE ON
THE MIDDLE EAST AND NORTH AFRICA
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 30, 2013
__________
Serial No. 113-110
__________
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COMMITTEE ON FOREIGN AFFAIRS
EDWARD R. ROYCE, California, Chairman
CHRISTOPHER H. SMITH, New Jersey ELIOT L. ENGEL, New York
ILEANA ROS-LEHTINEN, Florida ENI F.H. FALEOMAVAEGA, American
DANA ROHRABACHER, California Samoa
STEVE CHABOT, Ohio BRAD SHERMAN, California
JOE WILSON, South Carolina GREGORY W. MEEKS, New York
MICHAEL T. McCAUL, Texas ALBIO SIRES, New Jersey
TED POE, Texas GERALD E. CONNOLLY, Virginia
MATT SALMON, Arizona THEODORE E. DEUTCH, Florida
TOM MARINO, Pennsylvania BRIAN HIGGINS, New York
JEFF DUNCAN, South Carolina KAREN BASS, California
ADAM KINZINGER, Illinois WILLIAM KEATING, Massachusetts
MO BROOKS, Alabama DAVID CICILLINE, Rhode Island
TOM COTTON, Arkansas ALAN GRAYSON, Florida
PAUL COOK, California JUAN VARGAS, California
GEORGE HOLDING, North Carolina BRADLEY S. SCHNEIDER, Illinois
RANDY K. WEBER SR., Texas JOSEPH P. KENNEDY III,
SCOTT PERRY, Pennsylvania Massachusetts
STEVE STOCKMAN, Texas AMI BERA, California
RON DeSANTIS, Florida ALAN S. LOWENTHAL, California
TREY RADEL, Florida GRACE MENG, New York
DOUG COLLINS, Georgia LOIS FRANKEL, Florida
MARK MEADOWS, North Carolina TULSI GABBARD, Hawaii
TED S. YOHO, Florida JOAQUIN CASTRO, Texas
LUKE MESSER, Indiana
Amy Porter, Chief of Staff Thomas Sheehy, Staff Director
Jason Steinbaum, Democratic Staff Director
Subcommittee on Africa, Global Health, Global Human Rights, and
International Organizations
CHRISTOPHER H. SMITH, New Jersey, Chairman
TOM MARINO, Pennsylvania KAREN BASS, California
RANDY K. WEBER SR., Texas DAVID CICILLINE, Rhode Island
STEVE STOCKMAN, Texas AMI BERA, California
MARK MEADOWS, North Carolina
------
Subcommittee on the Middle East and North Africa
ILEANA ROS-LEHTINEN, Florida, Chairman
STEVE CHABOT, Ohio THEODORE E. DEUTCH, Florida
JOE WILSON, South Carolina GERALD E. CONNOLLY, Virginia
ADAM KINZINGER, Illinois BRIAN HIGGINS, New York
TOM COTTON, Arkansas DAVID CICILLINE, Rhode Island
RANDY K. WEBER SR., Texas ALAN GRAYSON, Florida
RON DeSANTIS, Florida JUAN VARGAS, California
TREY RADEL, Florida BRADLEY S. SCHNEIDER, Illinois
DOUG COLLINS, Georgia JOSEPH P. KENNEDY III,
MARK MEADOWS, North Carolina Massachusetts
TED S. YOHO, Florida GRACE MENG, New York
LUKE MESSER, Indiana LOIS FRANKEL, Florida
C O N T E N T S
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Page
WITNESSES
The Honorable Jeremy Rabkin, professor of law, George Mason
University School of Law....................................... 8
Mr. David M. Crane, professor of practice, Syracuse University
College of Law (former chief prosecutor, United Nations Special
Court for Sierra Leone)........................................ 16
Alan White, Ph.D., president, AW Associates (former chief
investigator, United Nations Special Court for Sierra Leone)... 32
The Honorable Stephen G. Rademaker, national security project
advisor, Bipartisan Policy Center.............................. 47
Mr. Richard Dicker, director, International Justice Program,
Human Rights Watch............................................. 58
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
The Honorable Jeremy Rabkin: Prepared statement.................. 11
Mr. David M. Crane: Prepared statement........................... 19
Alan White, Ph.D.: Prepared statement............................ 37
The Honorable Stephen G. Rademaker: Prepared statement........... 51
Mr. Richard Dicker: Prepared statement........................... 60
APPENDIX
Hearing notice................................................... 92
Hearing minutes.................................................. 93
The Honorable Mark Meadows, a Representative in Congress from the
State of North Carolina: Prepared statement.................... 94
The Honorable Christopher H. Smith, a Representative in Congress
from the State of New Jersey, and chairman, Subcommittee on
Africa, Global Health, Global Human Rights, and International
Organizations: Statement of Mr. Michael A. Newton, Professor of
the Practice of Law, Vanderbilt University Law School.......... 95
ESTABLISHING A SYRIAN WAR CRIMES TRIBUNAL?
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WEDNESDAY, OCTOBER 30, 2013
House of Representatives,
Subcommittee on Africa, Global Health and
Subcommittee on the Middle East and North Africa,
Global Human Rights, and International Organizations,
Committee on Foreign Affairs,
Washington, DC.
The committees met, pursuant to notice, at 1:30 p.m., in
room 2172 Rayburn House Office Building, Hon. Christopher H.
Smith (chairman of the subcommittee) presiding.
Mr. Smith. The subcommittees will come to order, and good
afternoon, everybody.
The 2-year-old Syrian Civil War has produced increasingly
horrific human rights violations, including summary executions,
torture, and rape. Most recently, both government and rebel
forces have targeted the medical and humanitarian aid
personnel. Snipers--and I read this and I was sickened by it--
are reportedly targeting pregnant women and children, and
actually passing around cigarettes when they kill an unborn
child who was put into their sights.
Since the Syrian Civil War began, more than 100,000 people
have been killed, and nearly 7 million people have been forced
to leave their homes. By December of this year, it is estimated
that neighboring countries such as Turkey, Lebanon, and Iraq
could see as many as 3.5 million Syrian refugees.
Those who have perpetrated human rights violations among
the Syrian Government, the rebels, and the foreign fighters on
both sides of this conflict, must be shown that their actions
will have serious consequences.
H. Con. Res. 51, introduced on September 9, calls for the
creation of an international tribunal that would be more
flexible and more efficient than the International Criminal
Court to ensure accountability for human rights violations
committed by all sides and by more people. This hearing will
examine the diplomatic, political, legal, and logistical issues
necessary for the establishment of such a court.
Today's hearing will examine the controversial issues such
as sovereignty, the ICC versus ad hoc regional tribunals, and
the sponsorship of such a tribunal.
Perhaps the most famous war crimes tribunals were the
Nuremberg and Tokyo trials--the post-World War II trials of
Axis military officers and government functionaries responsible
for almost unimaginable crimes against humanity. The Cold War
rivalry between the U.S. and the former Soviet Union prevented
the international cooperation necessary for war crimes
tribunals to be convened by the U.N.
After the end of that international political conflict,
there have been three particularly notable international
tribunals to hold accountable those guilty of genocide or
crimes against humanity, in the former Yugoslavia, in Rwanda,
and in Sierra Leone.
Each of these tribunals have achieved a level of success
that has escaped the International Criminal Court. The
Yugoslavia tribunal, for example, has won 69 convictions, the
Rwanda tribunal has won 47, and the Sierra Leone tribunal has
won 16 convictions. Meanwhile, the ICC, costing about $140
million annually, has thus far seen only one conviction.
The ICC process is distant and has no local ownership of
its justice process. It is less flexible than an ad hoc
tribunal, which can be designed to fit the situation. The ICC
requires a referral. In the case of the President and Deputy
President of Kenya, it was Kenya itself that facilitated the
referral.
This is highly unlikely in the case of Syria. Russia and
the U.N. Security Council would likely oppose any referral of
the Syrian matter to the ICC, but might be convinced to support
an ad hoc proceeding that focuses on war crimes by the
government and by the rebels, one that allows the plea
bargaining for witnesses and other legal negotiations to enable
such a court to successfully punish at least some of the direct
perpetrators of increasingly horrific crimes.
And Syria, like the United States, never ratified the Rome
Statute that created the ICC, which does raise legitimate
concerns about sovereignty, with implications for our country
with this panel, which will also be addressed today.
There are issues that must be addressed for any Syria war
crimes tribunal to be created and to operate successfully.
There must be sustained international will for it to happen in
a meaningful way. An agreed-upon system of law must be the
basis for proceedings.
I remember when we were discussing the tribunal for the
former Yugoslavia. Sitting right here in this room, not only
did I convene hearings on it, I actually passed a resolution
that was passed on the Senate side by Alfonse D'Amato, I did it
on the House side, because we were so concerned that important
information was not being transferred to the chief prosecutor
to allow a successful indictment and prosecution of Slobodan
Milosevic and others.
I remember also there was concerns about--there were people
concerns, a number of very, very interested parties--that it
was designed to fail because it was so grossly underfunded,
particularly at its onset, so that the kind of work that needed
to be done was not being done.
An agreed-upon structure, a funding mechanism, and a
location for the proceedings must also be found. There must be
a determination on which and how many targets of justice will
be pursued. A timetable and time span of such a tribunal must
be devised as well, and there are even more issues that must be
settled. If there is a will, they will be.
David Crane, one of today's witnesses, has suggested five
potential mechanisms for a Syrian war crimes tribunal. One, an
ad hoc court created by the U.N.; second, a regional court
authorized by treaty with a regional body; an internationalized
domestic court; a domestic court comprised by Syrian nationals
within a Syrian justice system; and of course the fifth would
be the ICC itself.
Each of these first four models have some benefits, some
more than others. The ICC can be ruled out, and a domestic
court in the near future seems highly unlikely. However, we are
not here today to decide which of these models will be chosen.
Rather, our objective in this hearing is to promote the concept
of a Syrian war crimes tribunal, whatever form it eventually
takes.
Again, those who are now even perpetuating crimes against
humanity must be told that their crimes will not continue with
impunity. Syria has been called the world's worst humanitarian
crisis. According to the World Health Organization, an epidemic
of polio has broken out in northern Syria because of declining
vaccination rates. One might reasonably also consider it the
worst human rights crisis in the world today. Therefore, the
international community owes it to the people of Syria and
their neighbors to do all that we can to bring a halt to these
actions while creating an accountability effort.
We have assembled a highly distinguished panel to discuss
the pros and cons of creating and sustaining a Syrian war
crimes tribunal. This is not an academic exercise. We must
understand the difficulties of making accountability for war
crimes in Syria a reality, and we must do it now.
Therefore, we must understand the challenges involved, so
that we can meet and overcome them and give hope to the
terrorized people of Syria. Their suffering must end, and the
beginning of that end could come through the results of today's
proceedings.
I would like to yield to my friend and college, Ms. Bass,
for any opening comments.
Ms. Bass. Thank you, Chairmen Smith and Ros-Lehtinen. Thank
you for your leadership and holding today's joint subcommittee
hearing.
As members of these subcommittees are well aware, the
Syrian crisis is in its third year. And unless something is
done to end atrocities it may well continue. While I am pleased
with news reports that indicate the Syrian Government has
cooperated with international officials toward dismantling and
disposing of illegal chemical weapons, the human tragedy
remains deeply disturbing and unanswered.
The Congressional Research Service reports that over
100,000 Syrians have been killed just since March 2011.
Globally, estimates indicate that some 2 million Syrians have
fled the country, and more than 4 million people have been
internally displaced. But it is the indiscriminate slaughter of
people, particularly women and children, that is and should
move all nations to act to end this tragedy and hold those who
have committed crimes against humanity and human rights
violations accountable.
We are all aware of the air strikes that have killed
thousands, and we know of the attacks by opposition forces that
have also killed innocent civilians, fracturing families and
leaving mothers and fathers without their children and children
without their parents. These attacks, whether by the Syrian
Government or opposition forces, are, without question, Syria's
human rights violations and stand in stark contrast to
international laws and norms created to preserve life and
peace.
The international community is unfortunately all too
familiar with establishing mechanisms to address war crimes and
crimes against humanity, and yet we find ourselves here once
again debating what course should be taken to address the evils
of war. We have seen the establishment of International
Criminal Tribunal for the former Yugoslavia, the International
Criminal Tribunal for Rwanda, the Special Court for Sierra
Leone, the Khmer Rouge tribunal, and, of course, the ICC.
Each of these and other mechanisms were created to address
the tragic and deplorable actions of those who cared so little
for human life and dignity. While these subcommittees can
debate whether a new tribunal for Syria should be established,
or whether the current mechanisms that exist are sufficient, I
am reminded of the tireless effort of human rights defenders
around the world who often put themselves in grave danger in
order to both gather evidence and document human rights
violations.
One such effort is being conducted by the Syria Justice and
Accountability Center, or SJAC. The SJAC is an independent
organization that collects, preserves, and analyzes information
on alleged human rights violations and other relevant data to
inform and contribute to the transitional justice process for
Syria. The SJAC is currently reviewing nearly 300,000 videos
and 200,000 documents in an effort to track and prepare files
for the day when justice can be served.
The SJAC receives support from 40 nations. It is a Syrian-
led initiative, and the aim of the center is to document
violations of human rights and humanitarian law in Syria in
order to support future transitional justice processes that
might be adopted by the Syrian people themselves.
We all know the Syrian crisis is not merely a crisis that
impacts Syrian people; it is an international crisis that
requires global attention. It is my hope that today's hearing
and the hearing that will undoubtedly follow will cast a light
on policies that will wisely and swiftly end this crisis and
heal the lives of those caught in the balance.
Thank you, and I look forward to today's testimony.
Mr. Smith. I thank my friend. I would like to now yield to
the co-chair of this hearing today, but also the former
chairman of the full committee, who served with great
distinction, and now chairs the Middle East and North Africa
Subcommittee, Chairman Ileana Ros-Lehtinen.
Ms. Ros-Lehtinen. Well, thank you very much, Chairman
Smith. Thank you for your leadership on this important issue,
and thank you to my good friend Ranking Member Bass for jointly
holding this hearing today.
Now in its third year, the Syrian conflict has caused
unspeakable damage to the people of Syria. It has placed a
heavy burden on Syria's neighbors, like our ally, Jordan, which
has taken in over 600,000 refugees, even though it strains the
kingdom's security and economic situation. Refugees have also
gone to Lebanon, to Turkey, to Iraq, to Egypt. It has seriously
jeopardized the safety of our friend and ally, the democratic
Jewish state of Israel.
This humanitarian tragedy has resulted in the deaths of at
least 100,000 over the last 2 years and has forced more than
2.2 million Syrians--around 10 percent of the population of the
country--to flee to neighboring countries, and over 5 million
Syrians are classified as internally displaced persons, IDPs.
The situation remains bleak and continues to get only worse
with each passing day.
Disease outbreaks are rampant in Syria with polio, measles,
typhoid, and hepatitis A all on the rise. Children are
malnourished, they are not getting an education, and they can
be easily radicalized by those extremists who prey upon those
most susceptible. Anti-American attitudes are being spread by
extremists as refugee camps become breeding grounds for
terrorist groups to spread their radical ideologies and recruit
young people to join their ranks.
The harsh living conditions in these camps also leave women
vulnerable to exploitation by sex traffickers, where girls are
forced into short-term marriages for money to help support
their families. Christian communities in Syria have taken a
huge toll in this conflict as Christians are being targeted for
kidnapping, torture, and murder, by radical Islamists who hate
them just for being Christians.
And many of their homes, churches, and neighborhoods have
been destroyed. And there is no end in sight, yet this
administration, whose foreign policy has been plagued with
inconsistencies and paralyzed by indecision, has not moved to
take decisive action, and not just in Syria but across the
region, in Egypt and Iran and elsewhere.
Time and time again the administration takes half-measures
or no measures, and its indecision has eroded our credibility
in the region, has greatly reduced our leverage over some of
these nations, and it has severely strained our relations with
many of our allies. And it has done so all for what?
Assad still remains in power, even though he has used
chemical weapons to murder hundreds of his people. Extremists
still roam the country targeting those who do not share their
strict view of Islam, and yet the administration thinks it
would be a good idea to provide arms to those people who hate
us as much as they do Assad.
So we have sacrificed our standing in the region for the
possibility of eliminating chemical weapons, but we still leave
the ruthless dictator in power. And no one has been made
accountable, not for the chemical weapons use, not for the
deaths of over 100,000 Syrians, not for the targeted attacks on
Christians or other religious and ethnic minority groups.
President Obama took quite some time to get around to the
idea that Assad must be removed from office, but now after the
chemical weapons use and the U.S.-Russian framework agreement,
it seems that the administration's position is now that Assad
can stay as long as he plays nice on chemical weapons.
We took a back seat to Moscow when it has been Russia who
has been backing Assad and giving him the supplies and the
weapons he needs to continue to murder his own people. And it
is the same Russia that blocked every effort we tried to make
at the U.N. to hold Assad accountable for his action, and
stonewalls our attempts to prevent Iran from becoming nuclear-
capable. And now we expect Russia to take the lead and really
hold Assad's feet to the fire over his transgressions.
What kind of message does this send to the people of Syria
who are being slaughtered and forced to flee, or to our
enemies, and mostly importantly to our allies? Assad must be
held accountable, Mr. Chairman, I agree with you. And when it
comes to the Syrian war crimes tribunal, we must ensure that
those behind these atrocities are held accountable without
placing our brave men and women in jeopardy and out of our
jurisdiction.
I thank the chairman and Ms. Bass for holding this hearing.
Thank you, sir.
Mr. Smith. Madam Chair, thank you very much for your very
powerful statement. Mr. Kennedy.
Mr. Kennedy. Thank you, Mr. Chairman. I will be brief. I
just want to thank the witnesses for being here on such an
important topic as we try to learn about the best ways, and
some of the ways, that we can try to make sure that we hold
those accountable for some of the atrocities that we have been
seeing and witnessing over the past several months and years.
And I want to thank the chair and ranking member for
putting together an important hearing and giving us an
opportunity to learn from some experts about the best way to do
that. So thank you very much. I look forward to your testimony.
Mr. Smith. Thank you. Chairman Chabot.
Mr. Chabot. Thank you. I just want to thank Chairman Smith
and Chairman Ros-Lehtinen, as well as the ranking member, for
calling this hearing today. And I want to thank our panel of
distinguished witnesses for taking the time to join us as well.
Violence in Syria has been spiraling out of control, and I
think most of my colleagues would agree that some measure
should be taken to hold the responsible parties accountable for
the atrocities committed throughout this brutal conflict. I
sincerely hope that our discussion here today will offer some
potential solutions for bringing to justice those guilty of the
ongoing war crimes in Syria.
And I yield back.
Mr. Smith. Thank you very much, Chairman. Ms. Frankel.
Ms. Frankel. Thank you, Mr. Chair. I just thank you all for
being here. We will listen with interest. I think everybody
agrees that what is happening in Syria is tragic. We would like
to have the wrongdoers--it seems like there are many of them--
held accountable. But the big question is, realistically, what
can we do? So I will be listening with an open mind.
Thank you.
Mr. Smith. Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman, and thank you, Madam
Chairman, for holding this joint hearing, and Ranking Member
Bass. In the interest of time, what I am going to do is just
submit my opening statement for the record.
I will yield back.
Mr. Smith. Would any other member like to be heard?
[No response.]
If not, I would like to now introduce our very, very
distinguished panelists, beginning with The Honorable Jeremy
Rabkin. Dr. Rabkin is a professor of law at George Mason
University School of Law. Before joining the faculty in June of
'07, he was for more than two decades a professor in the
Department of Government at Cornell.
Professor Rabkin serves on the Board of Directors of the
U.S. Institute of Peace. He also serves on the Board of
Academic Advisors of the American Enterprise Institute, and on
the Board of Directors of the Center for Individual Rights, a
public interest law firm here in DC. He has published several
books, and his articles have appeared in major law reviews,
political science journals, and a range of magazines and
newspapers.
We will then hear from Mr. David Crane, former chief
prosecutor for the United Nations' Special Court for Sierra
Leone. Mr. Crane was appointed a professor of practice at
Syracuse University College of Law in December of '06. He was
the founding chief prosecutor of the Special Court for Sierra
Leone, an international war crimes tribunal.
Professor Crane's mandate was to prosecute those who bore
the greatest responsibility for war crimes, crimes against
humanity, and other serious violations of international human
rights, committed during the Civil War in Sierra Leone in the
1990s. He served for more than 30 years in the Federal
Government and held numerous key managerial positions during
his three decades of public service. And, again, many of those
prosecutions that put some of the worst perpetrators of crimes
against humanity is a direct result of the work that he did as
chief prosecutor.
We will hear then from Dr. Alan White, former chief
investigator, U.N. Special Court for Sierra Leone. Dr. White is
currently president of AW Associates, a global consultancy
specializing in international criminal investigations and
training involving crimes against humanity, war crimes, human
rights, fraud, and anti-corruption.
As the founding chief investigator of the U.N.-backed
Special Court for Sierra Leone, he directed all international
criminal investigations involving war crimes. He is a 30-year
Federal law enforcement veteran where he last served in the
Department of Defense and directed global operations and all
criminal investigations involving terrorism, cyber crimes,
bribery, corruption, kickbacks, major fraud, and other major
crimes.
We will then hear from Mr. Stephen Rademaker from the
Podesta Group, who has a wide-ranging experience working on
national security issues in the White House, the State
Department, U.S. Senate, and House of Representatives, and once
sat right here as one of the top counsels for this committee.
And he currently advises the Podesta Group's international
clients.
Serving as an Assistant Secretary of State from 2002
through 2006, he headed at various times three bureaus of the
State Department, including the Bureau of Arms Control and the
Bureau of International Security and Non-Proliferation. He also
directed the Proliferation Security Initiative, as well as non-
proliferation policy toward Iran and North Korea, and led
strategic dialogues with Russia, China, India, and Pakistan.
We will then hear from Mr. Richard Dicker, who has been
director of Human Rights Watch's international justice program
since it was founded in 2001, and has worked at Human Rights
Watch since 1991. He started working on international justice
issues when Human Rights Watch attempted to bring a case before
the International Court of Justice charging the Government of
Iraq with genocide against the Kurds.
Mr. Dicker led the Human Rights Watch's multi-year campaign
to establish the International Criminal Court and has spent the
past few years leading advocacy efforts urging the creation of
effective accountability mechanisms. He monitored the Slobodan
Milosevic trial in The Hague and made many trips to Iraq before
and at the start of Saddam Hussein's trial.
If we could go first to you, Professor Rabkin, and then
each of our witnesses.
STATEMENT OF THE HONORABLE JEREMY RABKIN, PROFESSOR OF LAW,
GEORGE MASON UNIVERSITY SCHOOL OF LAW
Mr. Rabkin. Well, I am not sure why I was chosen to open
this discussion. Maybe it was to lower expectations. I want to
start by saying, Congresswoman Ros-Lehtinen, I agree with you
it is very disturbing that the Obama administration just seems
to be floundering and doesn't seem to have a serious policy,
and we do really seem to be forfeiting support in that region.
However, that is not going to be fixed by a tribunal. So we
should all understand that. Right? This is, at best, a
contribution and probably a somewhat marginal contribution. We
started the modern era of international trials with the
International Criminal Tribunal for the former Yugoslavia, and
that was in 1993 when a lot of people were saying we need to
intervene before the situation in the Balkans gets even more
out of hand.
And at that time, the Clinton administration said, ``Well,
we don't want to send troops. We don't actually want to be
involved in bombing. Let us send lawyers.'' And that was not a
particularly effective response.
And the first thing I want to say is, I mean, let us all be
cautious about this. Sending lawyers is not going to fix the
situation in Syria.
The next thing I want to say is if you set up an
international tribunal, even an ad hoc international tribunal,
our experience in Sierra Leone is a little different because it
was based there and had involvement from people there. But the
tribunals for Rwanda and the former Yugoslavia, I don't think
they were very well received in the countries that they were
supposed to help.
And the people on those tribunals, both of which started in
The Hague, the Rwanda one later shifted to Tanzania, but they
got organized in The Hague, you start a tribunal in The Hague
and you take, as your constituency, not the country that you
are actually supposed to be helping but the community of
international lawyers because you are in the headquarters of
international lawyers, The Hague.
And so they did a lot of things which didn't impress people
in Rwanda or in Yugoslavia but made lawyers think, oh, yeah,
that is pretty good, that is interesting. I think the
particular thing they did which everybody feels is very
regrettable is they were excruciatingly slow. They went on and
on and on.
In the first 5 years, the Rwanda tribunal didn't have a
single conviction as they were getting organized. And this is
after the murder of nearly 1 million people, right? And if you
compare that to Nuremberg, within 1 year we started the
proceedings, and then the people who had to be hanged were
hanged.
We were just incredibly slow. I say ``we''--the
international tribunal was. And when challenged about this,
they said, ``Well, it is really important to show that we have
followed international standards of due process.'' Why was that
really important? And I think it is because they took as their
constituency the people they were trying to impress--
international lawyers.
That is I think a very bad path to go down. If what you
want to do is make a contribution to Syria, we have got to
focus on Syria and not what people think in The Hague.
There is very fine testimony on this by Michael Newton. I
understand he wasn't able to make it today, but I just want to
commend his statement; he had experience advising the Iraqi
tribunal that tried Saddam Hussein. And the main point he makes
there, one of the main points he makes in his testimony which
is I think absolutely central, is you have to understand this
as not so much a legal process but the legal application of a
political process. And the political process cannot just be
determined by outsiders. There needs to be a lot of negotiation
with people in Syria before we get this going.
I think it is really out of the question to launch a
tribunal while Assad is still in power. And even if, within the
next year or so, I hope he is succeeded by something else, we
are going to have a lot of difficulties working out how this
should be organized, and the focus should be what they will
support and what will make them feel that this is justice.
Let me just conclude with a last point. If peace does come
to Syria, there is going to be a tremendous amount of
bitterness and hatred directed at foreign fighters, because a
lot of the worst atrocities are by people who came in from
outside. We should all bear that in mind. Are they going to
think, ``Well, the foreign fighters were horrible, but the
foreign lawyers, they are really great. They are our friends.''
If we say, ``No, no, no. They are lawyers from the good
countries,'' why are they the good countries? They are the
countries that stood on the sidelines while they were all being
massacred. I think we shouldn't start with the assumption that
they are really eager for American or Western European
assistance. I think there is assistance that we can give to
them, but let us not start from the assumption that we mean
well; therefore, they are happy to have us.
So I would suggest this. Before we get to a tribunal, we
really need to gather evidence. I think we have a model that is
worth thinking about from Lebanon, which is this independent
investigative commission that they had starting in 2005 to
investigate the assassination of Prime Minister Hariri. That
experienced a lot of frustration, but it did gather a lot of
evidence. And afterwards the Security Council was persuaded to
establish a tribunal.
That is maybe a model here, some kind of investigative
commission which perhaps can work with the Syrian Justice and
Accountability Commission, but gather more evidence and then we
can see what kind of tribunal that can be handed off to.
Thank you.
[The prepared statement of Mr. Rabkin follows:]
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----------
Mr. Smith. Professor Rabkin, thank you very much for your
testimony. I look forward to asking you some questions when we
get to it.
We will take a very brief time off because there are three
votes on the floor of the House.
I would just--you know, we will go to Mr. Crane next. I
will have a number of questions to ask you, because, you know--
and I just want this on the record because I hope members will
come back. Sending lawyers wasn't the only thing we did with
Yugoslavia.
And as I said in my opening, and we will get into it a
little bit later, but part of the problem was many of us
thought it was designed to fail because it was not being
adequately resourced, and I was the one who introduced, along
with Steny Hoyer--he was the chief co-sponsor of my bill--to
lift the arms embargo because it was a one-sided fight,
Milosevic versus two countries at least. Slovenia set them
back, but certainly Croatia and the Bosnians had no way of
defending themselves.
So what we are trying to do here is a lessons learned, and
I agree with you fully it was too slow and I felt there was a
disingenuous effort by some to do a Yugoslav war crimes
tribunal that was more of a showcase rather than a workhorse,
and that is what we hope to learn from. But I do appreciate
your testimony. If you want to respond briefly, and then we
will take a brief recess.
Mr. Rabkin. Just one thing. I mean, later on we did what we
had to do. I mean, later on we had real military intervention.
At the beginning, though, I think this illustrates the moral
hazard of international legal process, which is people feel
they are doing something when they are not doing something. And
I think in 1993 the Clinton administration didn't really want
to do anything, and so they said, ``Yeah, let us have a legal
process,'' right? And that is not, by itself, serious.
Mr. Smith. Thank you. We stand in short recess, and I
apologize to our witnesses. I do hope the members will come
back.
[Recess.]
Mr. Smith. The hearing of the subcommittees will resume.
And, again, I apologize to our witnesses and all assembled for
the delays.
I would like to now recognize Mr. David Crane.
STATEMENT OF MR. DAVID M. CRANE, PROFESSOR OF PRACTICE,
SYRACUSE UNIVERSITY COLLEGE OF LAW (FORMER CHIEF PROSECUTOR,
UNITED NATIONS SPECIAL COURT FOR SIERRA LEONE)
Mr. Crane. Well, thank you, Mr. Chairman. It is indeed an
honor to be here this afternoon, and I do want to say for the
record that I have submitted my remarks to you and the members
of this panel, along with two appendices which I believe you do
have, one on the Syrian Accountability Project, an information
PowerPoint, as well as the Chautauqua Blueprint, which is also
a methodology by which we can create a court. And so I would
humbly ask that this be submitted into the record.
Mr. Smith. Without objection, your statement and those of
all of our distinguished witnesses and appendices to it will be
made a part of the record.
And I know normally 5 minutes is what people are allotted.
Please feel free to use whatever time you feel necessary, and I
say that to all of our witnesses.
Mr. Crane. Well, we thank you for your time, sir. I do want
to note before I continue that you and I go way back, along
with a couple of members of this panel.
Once again, sadly, we are back considering justice for
another country that is being destroyed by another head of
state. You were in your leadership, along with Chairman Royce
and others, a bipartisan issue on both sides of the aisle.
We do appreciate the support that you gave the Special
Court for Sierra Leone and the work that myself and Dr. White
were doing in trying to seek some justice for the victims of
the atrocities in Sierra Leone. So I commend you, sir, for that
continued leadership when we move into Syria.
I am going to address two items for you that are in my
remarks, one of which is what you wanted me to talk about and
that certainly is the five possible justice mechanisms related
to Syria. But I also want to talk a little bit about the Syrian
Accountability Project and the Chautauqua Blueprint just to
highlight that there is an international effort working all
across the board, to include our Syrian colleagues, to have in
place a cornerstone mechanism by which a regional, local, or
international prosecutor can start building a trial-ready case.
And the reason why we are doing it such is we have already
done it once before, and that is the takedown of President
Charles Taylor of Liberia. We have taken the lessons learned
there, and we have modified them and are developing this
package called the Syrian Accountability Project.
But, first, let us go to the questions that you are most
interested in first, Mr. Chairman, and that is the five
possibilities of a justice mechanism in Syria. And I don't have
them in order; I am just listing them as the five possible
mechanisms.
The first is the International Criminal Court. Why the
International Criminal Court? Because it is the permanent
criminal court that possibly would have both subject matter and
in personam jurisdiction over potential perpetrators of the
atrocities in Syria.
It is the world's only permanent international court, and
it certainly is one of the viable mechanisms that the
international community may consider in seeking justice for the
people of Syria.
A second option is an ad hoc court created by the United
Nations. We have had two ad hoc courts. They are continuing
their work now. It has been a stop-start process, but the ad
hoc tribunals are moving forward and finishing their work, and
there has been justice for the people of Rwanda as well as
Yugoslavia.
However, I must caution the chairman and members who are
present that an ad hoc tribunal practically and frankly is a
political non-starter. It is too expensive and their reputation
of being too long and too nimble to create a justice mechanism
probably would not get very far as far as an option before the
Security Council, because it would be the Security Council
itself under Chapter 7 of the U.N. Charter that would have to
agree to that. And I don't think that that would happen, but I
think for--to be open and in general, that still is an option.
And of course certainly we don't have any idea how this is
going to play out over time.
A third option would be a regional court, something very
much like the international hybrid tribunal in Sierra Leone,
and that model of course certainly has proven in general to
have been a good model for that particular region of the world.
I am not saying that it would be for Syria, but, again, it is
another one of those options which we might want to consider as
far as justice.
A fourth option is an internationalized domestic court. We
would have a chamber within the Syrian justice system, but it
would be backed by and supported by the international
community, and we have done that before. We have one that is
very similar in Cambodia, and what have you, but it is
certainly working well in the Balkans where we have
international experts and practitioners assisting the Syrians,
or whatever country that is trying these cases actually
assisting them and helping them in their work.
A fifth and final option would be a domestic court, a pure
domestic court. In consideration of all of these, and having
worked with the Syrian leadership and the Syrians, talking to
Syrians, working with Syrians over the past 2-plus years, this
is starting to evolve into the preferred system.
You know, what is wrong with Syrians trying Syrians for
violations of Syrian law? And that is starting to become a more
specific option for both this House and this committee to be
thinking about, but also the international community, which
leads me to my final part to my remarks, Mr. Chairman, and that
is, how do we do that? In other words, we have these five
mechanisms. Some of them have their challenges and some of them
are viable options.
For 2\1/2\ years, and we have been working with the
Syrians, the international community, as well as non-
governmental organizations, putting together a cornerstone
package called the Syrian Accountability Project and the
Chautauqua Blueprint, where we have mapped the conflict, we
have developed a crime-based matrix of all of the major
incidents that have taken place in this tragedy on both sides,
on all sides I should say, because, again, it used to be both
sides and now that civil war has grown to where we have all
kinds of actors. But this is a neutral effort ensuring that we
are accounting for all of the violations of international as
well as Syrian law.
We also have a mapping exercise, a unit mapping exercise.
We have a team looking at crimes against women and children, as
well as developing sample indictments, so that a future
prosecutor, be they domestic, regional, or international, will
have a sample of what an indictment would look like.
We have done this in West Africa, so that this has already
the true test of time and practice. And all of this work is put
together by some of the best and brightest at the international
level, along with our Syrian colleagues, working hand in hand.
At this point, what I will do, Mr. Chairman, is I will just
leave these remarks with this, and I look forward to any
questions that you might have. And, again, thank you for this
opportunity.
[The prepared statement of Mr. Crane follows:]
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----------
Mr. Smith. That is great. Thank you so very much for your
testimony.
Dr. White.
STATEMENT OF ALAN WHITE, PH.D., PRESIDENT, AW ASSOCIATES
(FORMER CHIEF INVESTIGATOR, UNITED NATIONS SPECIAL COURT FOR
SIERRA LEONE)
Mr. White. Yes, sir. Chairman Smith, I am honored and
pleased to be able to testify before these subcommittees on
such a significant issue. I am profoundly aware of the
chairman's outstanding global leadership on the protection of
human rights. I have experienced the chairman's support
firsthand while serving as the chief of investigations for the
United Nations-backed Special Court for Sierra Leone.
In large part, the court's success in bringing some of the
world's most notorious war criminals to justice, such as former
Liberian President Charles Taylor, would not have been possible
without your support and other Members of Congress. Former
President Taylor's involvement in support of the rebels who
committed unspeakable war crimes and crimes against humanity
impacted over 1.2 million victims in Sierra Leone and Liberia.
Today we are faced with a similar crisis in Syria as we
experienced in Sierra Leone. We have another brutal dictator
who is embroiled in civil war and engaged in wide scale and
systematic killings of innocent human beings with impunity. It
is alleged President Assad has taken evil to the next level by
employing the use of chemical weapons, killing thousands of
defenseless innocent women and children.
Unfortunately, he is protected by his staunchest ally,
Russia, which will undoubtedly block any formal referral from
the United Nations Security Council to the International
Criminal Court, allowing Assad to escape accountability with no
justice for the victims. Most would agree an immediate
alternative needs to be aggressively pursued.
To ensure Assad and other perpetrators committing war
crimes and crimes against humanity within Syria are held
accountable and brought to justice, there must be an
independent criminal court created to achieve justice. The
establishment of a Syria war crime tribunal proposed in your
congressional resolution is a legitimate and a viable solution.
Further, in my judgment, the tribunal must be created
immediately with the full support of the U.S. Government and
the international community. A Syrian war crimes tribunal could
be established as an international hybrid tribunal with
international authorities specifically mandated to investigate
and prosecute those who bear the greatest responsibility for
the commission of war crimes, crimes against humanity, and
genocide.
A Syrian war crimes tribunal could be backed by the United
Nations similar to the Special Court for Sierra Leone. It would
be unwise and dangerous to establish the main tribunal in Syria
while the country is engaged in a civil war. However, to
expedite operation and minimize costs, the tribunal could be
established in The Hague utilizing the current office space of
the Special Tribunal for Lebanon with a regional office set up
in a neighboring country to Syria. For example, Turkey would be
an example, and Jordan.
As mentioned previously, it is imperative that the tribunal
be accountable to the victims and geographically located
nearby. We now have years of experience to draw upon, and it is
important we benefit from such experience, ensuring this
tribunal is set up correctly, staffed properly, and financed
definitively.
It is my experience that most of the evidence used by
prosecutors in International Criminal Court will be witness
testimony. Maintaining a trusted and close professional
relationship is essential in making sure witnesses will be
available and willing to testify when necessary. Unfortunately,
this has been a major problem plaguing the International
Criminal Court.
Consequently, it will be absolutely crucial the
investigators develop a trusted relationship at the onset to
secure the best evidence and witness testimony. I know from my
own experience that our physical presence in the region greatly
contributed to our success and effectively gathering witness
testimony.
Being able to access witnesses and informants regularly
unequivocally contributed to the success of the Special Court's
prosecutions. The trusted relationship between our witnesses
provided them with the necessary confidence to be able to
provide courageous testimony on the world stage. Undoubtedly,
the strong witness testimony was the bulk of our evidence and
contributed significantly to the successful prosecution of all
cases. All of our convictions and sentences were upheld by the
appeals chamber, which is a testament to the strong evidence
presented in court.
Although witness testimony is vital at any trial, it is
especially true when prosecuting war crimes and crimes against
humanity involving countries engaged in civil war or have
emerged from civil war. All too often physical and documentary
evidence may have been destroyed during the war, so witness
testimony is weighted heavily.
Many of the witnesses will be victims, and a great deal of
them will have been traumatized by the atrocities committed.
For example, rape is often a tool of war, and many victims are
reluctant to talk about what happened, particularly with
strangers.
War crimes investigations are routinely complex by their
very nature and require a unique skill set to be able to
conduct such investigations. It can take months for
investigators to be able to develop a trusted relationship with
a victim as well as witnesses. In many cases, witnesses will
tell you stories if they have witnessed a crime personally, yet
they are only passing on a story they heard from a family
member or friend. This is particularly true in developing
countries where tribes and clans living in villages are present
and oral history is a tradition and common day practice.
Thus, it will require an investigator who is skilled and
experienced in conducting such investigations to be able to get
the facts in a timely manner. Inexperienced investigators may
take statements later deemed to be inaccurate because the
witnesses did not actually observe any atrocity being
committed, which can create unnecessary exculpatory issues.
This is a major reason that investigators need to be
located in the country or in the region for sheer logistical
purposes. The investigators will be continuously conducting
investigations, gathering facts and evidence. There will always
be a need to conduct routine followup interviews on a regular
basis.
The key elements of proof in war crimes involve determining
who was involved, was there a plan, was it wide scale and
systematic, military structure, chain of command, weapons
involved, command responsibility, as well as identified crime-
based events.
Conducting war crimes investigations is one of the most
challenging, if not the most, and demanding type of
investigation within the international criminal justice system,
requiring the most highly skilled, competent, and talented
criminal investigator. In my judgment, war crimes investigators
must be experienced criminal investigators. I would recommend
10 to 15 years' experience, international, they be of high
moral character, good judgment, well educated, preferably a
graduate degree, overseas experience, multilingual, excellent
interpersonal skills, witness protection training, confidential
informant training, and war crimes investigation training and/
or experience.
In my own experience, I met regularly with witnesses from
Liberia and Ivory Coast, and during my tenure both countries
were engaged in civil war. Being situated nearby, my staff and
I were able to meet with witnesses regularly, allowing us to
develop a trusted relationship and execute our duties in a
timely manner.
For example, some witnesses had vital inside information,
yet reticent to cooperate for fear of being identified and/or
suspected of being a witness, which would undoubtedly pose an
immediate danger to themselves or family members. Without a
trusted relationship, it is extremely difficult, if not
impossible, to convince witnesses in a war-torn region to come
forward and become a witness unless they have complete trust
and faith in you being able to provide for their safety and
well being.
In those instances where witnesses' testimony was deemed
vital for prosecution, you must be able to act immediately and
decisively to demonstrate to the witness you can deliver on any
assurances provided. Otherwise, investigators' credibility
could be questioned and the operational effectiveness could be
marginalized.
Personally, I faced many exigent circumstances which
required immediate action and a need to make command decisions.
Being in a region and equipped with appropriate resources
allowed me to deal with very challenging and dangerous matters.
For example, one of my key witnesses was a former commanding
general of the Liberian Armed Forces and as in Accra, Ghana, at
a military medical facility receiving treatment for torture
injuries inflicted by Chucky Taylor, the son of former
President of Liberia, Charles Taylor, and is currently serving
a 97-year sentence in U.S. prison for torturing my witness.
The injuries were life-threatening and so severe the
general's wife pleaded with Taylor to allow her husband to go
to Ghana for treatment. In return, she offered herself and
family as human collateral as a guarantee her husband would
return. At the time, Taylor knew of the Special Court's
existence and was very paranoid about anyone who could be a
potential witness for the court leaving Liberia.
While undergoing treatment in Ghana, I made contact with
the general and received vital evidence about Taylor and the
rebel groups he supported in Sierra Leone. After vetting this
information, a decision was made that he would be a major
witness for prosecution and he needed to be relocated out of
the region. Without an established witness protection program
in place, I coordinated with the U.S. Department of State,
sought the support to allow me to relocate the general and his
family to the United States under the significant public
benefit program.
The U.S. was the only place I could relocate the general
without fear of Charles Taylor being able to physically harm
him or his family. With my operational contacts in the region,
I was able to smuggle the wife and eight children, one by one,
to Accra, Ghana and then on to the U.S. with the assistance of
the U.S. Embassy and the International Migration Office.
While this was ongoing, Taylor had sent some of his
henchmen to Accra looking for the general. And once he learned
he was no longer at the military hospital, they started
canvassing the U.N. Liberian refugee camps in Accra as well as
the entire city. The day we left Accra they learned the
whereabouts of the hotel where the general was staying and we
narrowly escaped their pursuit and went to the U.S. Embassy.
Taylor's henchmen later showed up that same night at Accra
International Airport and located us in the lounge while we
were waiting to board. They attempted to breach security and
were held at bay by the local airport authorities at the
request of the U.S. Immigration and Naturalization Service
agent who was armed and intervened while we boarded the
aircraft.
Meanwhile, the general's wife and children had been
smuggled out of Liberia and were en route to Ghana. Due to the
safety concerns for the general, we departed Ghana, flew to
Amsterdam, and then on to the United States without incident.
The family was later reunited 1 month later in the United
States safe and sound.
The moral of this story is quite simple. If I had not been
in a region and had contacts in place, I could not have been
able to carry out this mission and a key witness could have
been killed as well as his family. Currently, due to funding
and staffing issues the ICC has been unable to establish a
full-time presence in many of the countries where they are
actively engaged. As a result, they are experiencing serious
witness issues involving their willingness to testify.
The lack of a trusted relationship will have a major impact
on any investigation and subsequent prosecution. This
reinforces the need to establish a Syrian war crimes tribunal
singularly focused and accountable to the victims of Syria and
located closest to the people. Clearly, the witnesses
associated with having any knowledge of war crimes being
committed in Syria will undoubtedly have trust issues and an
obvious reluctance to reporting information to anyone outside
their family, their tribe, their clan and/or their village.
Consequently, developing a trusted relationship from the
immediate onset, in my opinion, is the most crucial stage of
any investigation, especially a war crimes investigation.
Therefore, it is absolutely vital an investigator be regularly
and personally engaged to nurture the trust with the witness.
Otherwise, it will dissipate and have a major impact on the
investigation and related prosecution.
There isn't a robust witness management and witness
protection program in place. The risk of a witness being
killed, seriously injured, or physically threatened can occur.
And if it does, it will undoubtedly have a chilling effect on
any investigation and prosecution.
The recent reports of ICC witnesses being killed, bribed,
and threatened in regards to the ongoing trial of Kenya's
Deputy President, as well as the impending trial of Kenya's
President, highlight this very issue.
We had over 600 witnesses at the Special Court. And
although not all of them were deemed necessary to testify, many
did and did so credibly, which accounted for the convictions
attained. Although witness protection is the responsibility of
the Registrar, we felt strongly that the Office of the
Prosecutor must have the capacity to carry out our mission.
As a result, with the concurrence of the Registrar, we
created our own witness management unit to manage the witnesses
of the Office of the Prosecutor. Based on our experience, the
witness management and protection responsibility should rest
with the Office of the Prosecutor and not the Registrar.
This must be taken into consideration when creating this
tribunal. This is a major flaw and impacts investigations and
prosecutions and certainly needs to be addressed if a Syrian
war crimes tribunal is created. Witness testimony and vital
information will dry up quickly if this very important phase of
the criminal justice process is not implemented properly at the
onset.
Finally, I would like to address the accountability of a
court to the victims and not merely to the international
community. The ICC is also plagued with being viewed as a
political instrument and not as a system of justice for
victims. The recent investigations in the Ivory Coast, which
has led to the prosecution of three members of the former
government, including the former President, his wife, and
former Minister of Sports, are being viewed as politically
motivated and not balanced.
Members of the current administration, including the
current Speaker of the Parliament, have been documented by the
United Nations and numerous human rights organizations as
perpetrators of war crimes, yet no one has been prosecuted. It
is important that all warring factions be aggressively
investigated and prosecuted. Otherwise, the lack of balanced
prosecution can undermine the peace and reconciliation process.
It must be kept in mind the rule of law and Ivory Coast
must be built on restorative and retributive justice, and the
best way to achieve these goals is through local
accountability. Towards that end, specifically and singularly
mandated hybrids, such as the Syrian war crimes tribunal, with
international authorities conducting its affairs under
international law responsible to the victims, is the best way
forward.
In conclusion, I believe the subcommittee's influence,
support, and persistence can lead to the creation of a Syrian
war crimes tribunal, which will ultimately lead to the
prosecution of those involved committing war crimes and crimes
against humanity.
By bringing Charles Taylor, the former President of Liberia
to justice, we have demonstrated that no one is above the law.
Now we all need the political will to support and do the just
and noble thing.
I want to thank you again, Mr. Chairman, and other
distinguished Members of Congress, for allowing me the
opportunity to share my thoughts and experiences in pursuit of
a successful outcome for the victims of the Syrian Civil War.
[The prepared statement of Mr. White follows:]
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----------
Mr. Smith. Dr. White, thank you. Thank you for that very
extensive testimony, and with a particular focus on the
importance of the witnesses and all things related to. Thank
you.
Secretary Rademaker.
STATEMENT OF THE HONORABLE STEPHEN G. RADEMAKER, NATIONAL
SECURITY PROJECT ADVISOR, BIPARTISAN POLICY CENTER
Mr. Rademaker. Thank you, Mr. Chairman. Thank you for
having me here today. And, Chairman Chabot, nice to see you as
well.
I have prepared remarks, which I will not read to you. I
will summarize a few of the key points and try and emphasize
what I think are the most important issues before us.
I am here today to testify in support of your resolution,
Chairman Smith, and I should say that fact would probably come
as a surprise to many of my friends, because I have a long
record of criticizing war crimes tribunals of all stripes. And
I spent the better part of my testimony offering additional
criticisms of most of the war crimes tribunals that have gone
before us.
The only exception in my prepared testimony to that is the
Sierra Leone tribunal, or Special Court for Sierra Leone, where
I actually have some positive things to say about the work that
they have done. But I am critical of all of the others, but I
come down differently on your proposal for a number of reasons,
which I discuss toward the back end of my prepared statement.
Maybe I will summarize the reasons why I think unlike the
previous cases the idea that you are proposing with respect to
Syria is actually a good idea. First, I think a lot of times
war crimes tribunals are established because the international
community is frustrated, and they can't think of anything else
to do.
And so as Professor Rabkin I thought very eloquently stated
in his testimony, you know, in the absence of any sort of
meaningful or serious policy, the U.N. decides to dispatch
lawyers to address the problem and then pats itself on the back
thinking that they have done something useful to address the
problem.
There was some dialogue between you and Professor Rabkin
about the Yugoslavia tribunal, and I personally am critical of
the Yugoslavia tribunal, not because I think it has failed to
bring war criminals to justice. I am critical of it because I
think it is a historical matter. It was a very unfortunate
compromise, in 1993, between essentially the Government of the
United States and the governments in Europe, which had
peacekeepers in Bosnia.
And at that point there was a fairly significant
disagreement between the United States and the European
governments about what to do in Bosnia. It was clear that the
international efforts were failing and the war was spiraling
out of control, casualties were increasing.
The key issue at that time was the arms embargo on Bosnia,
which you referred to. The United States was proposing, and
Members of Congress like yourself were offering legislation, to
end the arms embargo on Bosnia, which would have leveled the
playing field. Europeans didn't want to do that. They had
peacekeepers in Bosnia.
And so the compromise that was worked out was, let us not
do anything except send in lawyers. And my personal belief is
that that delayed by about 2\1/2\ years serious measures that
did eventually solve the conflict in Bosnia. And those serious
measures were taken once your arms embargo legislation passed
both the House and the Senate by veto-proof margins. That is
when President Clinton decided, ``Okay, I need a new policy,''
and he immediately commenced NATO bombardment of Serbian
positions in Bosnia. And that led, within a matter of months,
to the Dayton Peace Accords and the peace arrangement that is
still in place in the Balkans to this day.
My personal belief is that could have happened sooner, but
for the delay that was brought about as a result of the
decision to create a war crimes tribunal. And so I don't
actually fault the tribunal for its work, but I do fault the
decision to create it, because I think that decision was taken
to avoid taking harder decisions that governments didn't want
to take at that time.
But the point I make about your idea is I think in the case
of Syria--and I hate to say this, I wish it weren't true--but I
think unlike in Yugoslavia in 1993 and 1994 there are no other
serious steps that the international community is going to be
able to take. You know, it is clear that the Security Council
is not going to even impose sanctions on the Assad regime due
to the position taken by the Governments of Russia and China.
I think the United States is not going to be prepared to
act unilaterally, as it threatened to do in the Balkans. The
most recent diplomatic arrangement between the United States
and Russia with respect to chemical weapons I think guarantees
that in fact the U.S. policy is no longer even to overthrow or
change the Assad regime.
I mean, the Assad regime is now the diplomatic partner of
the United States and Russia in trying to dispose of chemical
weapons. And serious efforts to overthrow the government while
we are working with it I think will not work. And I am not sure
the Obama administration has yet recognized that, but that is
where U.S. policy is headed.
And I think unlike in the Balkans in the 1990s when Members
of Congress like yourself were providing leadership on the
issue, it is very clear from the debate that we had 2 months
ago here in Congress about whether to authorize the use of
force by President Obama in Syria, Congress is not going to be
pushing for more forceful action in Syria.
So in the absence of any prospect of more meaningful action
by the international community, I think this is not a case like
Yugoslavia where establishing a war crimes tribunal can serve
as a pretext for not taking action that could otherwise be
taken, because no other action is going to be taken, in my
opinion.
Second, I think this is a conflict where there are bad
actors on all sides. That is increasingly apparent. And I think
investigations by an ad hoc tribunal and eventual prosecutions
could delegitimize not just the Assad government but also those
radical elements who, on the pretext of trying to free their
country, are actually carrying out another, more radical agenda
in their country.
And today those groups are receiving outside assistance
from some governments and individuals, and I think it might be
harder for that assistance to continue in the face of
international condemnation in the form of action by an ad hoc
criminal tribunal against them.
And then, the third reason I can support your idea is
because it is not the International Criminal Court that you are
proposing. You are proposing to establish an ad hoc tribunal.
And I want to speak particularly to this issue of the
International Criminal Court because I do believe, as has
already been pointed out, should the idea of acting against war
criminals in Syria gain traction, we will certainly hear from
the Europeans and others that the only possible way to do that
is through the established international mechanism for handling
these sorts of things, the International Criminal Court.
And, Mr. Chairman, I want to state more emphatically with
regard to this than anything else, the worst possible thing the
international community could do in Syria is to deploy the
International Criminal Court to go after war criminals in that
country. We should do absolutely nothing before we do that,
because it will--actually, I will read one paragraph from my
prepared remarks because I think this articulates my objection
to the International Criminal Court's potential involvement
more clearly than I can do it off the cuff.
The ICC is an extremely blunt instrument. It is not an
instrument of diplomacy, but, rather, an instrument of justice.
By design, it exalts justice over all other objectives. This is
the meaning and intention of Article 16 of the Rome Statute,
which provides that once the court has taken up a case it can
never permanently be divested of jurisdiction to proceed with
it, and not even the U.N. Security Council can defer the
investigation or prosecution of the case for more than 1 year.
Of course, Article 16 permits the Security Council to renew
such deferrals once a year for so long as it may wish to do so.
But the message of this provision to potential defendants is
crystal clear. Once the ICC prosecutor has begun to pursue you,
no power on earth can ever permanently rid you of him.
So my concern is that should the international community
decide to turn on ICC jurisdiction with respect to Syria, the
message to President Assad is he is either going to end up dead
or in prison. Those are his two choices. And I think the
international community needs to decide what it wants in Syria.
If what it wants is justice, it wants to bring Assad to
justice, it wants to bring his henchmen to justice, it wants to
bring leaders of the al-Nusra rebel groups to justice, the ICC
is the appropriate instrument.
But if what we want to do is end the war, if we want to
promote a democratic transition and try to bring to power a
government led by someone else other than President Assad,
sending in the ICC is the worst possible way to achieve that
objective, because if we want President Assad to give up power,
you can imagine the conversation.
The diplomats who speak to him are going to have to say--
they are going to have to make it attractive to him to give up
power. And it will not be attractive to him to say, ``Give up
power and then we are going to send you to prison.'' We have to
offer him carrots if we want him to give up power. Threatening
and promising him that he is going to prison will lead him to
dig in. It will ensure that he never gives up power, that he
ends up like Ghadafi. Why did Ghadafi stay in Libya and fight
to the death? Unlike in Tunisia where the dictator gave up and
went into exile, unlike in Egypt where Mubarak gave up and went
into internal exile.
In Libya, Ghadafi stayed and fought to the death. Now,
maybe that had to do with the character of Ghadafi, but there
was another element. The U.N. Security Council had conferred
jurisdiction on the ICC to investigate war crimes in Libya, and
it was crystal clear that Colonel Ghadafi was going to be the
number one defendant before the International Criminal Court.
The international community said to Ghadafi, ``No, no, you
don't have Mubarak's option. You can't retire peacefully. We
are coming after you.'' And so he stayed and fought to the
death. If that is what we want in Syria, we want this civil war
to go on until somebody, you know, corners Assad in a street
and shoots him, you know, the way to get to that objective is
to bring in the International Criminal Court because they will
pursue him relentlessly, they will guarantee that he does not
go peacefully.
But I submit though that may be from a purist point of view
that you want a pursuit of justice above all other objectives,
that might be the right way to go. I think there are more
important values, more important objectives for the
international community, most importantly saving human lives of
the Syrian people. And for that reason, I think we need to
avoid solutions which will perpetuate the conflict.
We need to look, instead, for solutions that will make it
possible to expeditiously end the conflict. And I think an ad
hoc tribunal, which is not subject to Article 16 of the Rome
Statute, an ad hoc tribunal which could be turned off by
Security Council action, should there be a diplomatic
settlement acceptable to all sides, that would make sense. That
would be a useful diplomatic tool. The ICC is the antithesis of
a useful diplomatic tool in the case of Syria.
So I will end my testimony with those observations, and I
look forward to your questions.
[The prepared statement of Mr. Rademaker follows:]
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Mr. Smith. Thank you very much, Secretary Rademaker, for
that explanation. And, again, your full statement will be made
a part of the record.
I would like to ask, Mr. Dicker, if you would proceed.
STATEMENT OF MR. RICHARD DICKER, DIRECTOR, INTERNATIONAL
JUSTICE PROGRAM, HUMAN RIGHTS WATCH
Mr. Dicker. I am grateful to the subcommittees for inviting
me to testify. And, Mr. Chair, I want to thank you for
convening this important hearing.
My organization, Human Rights Watch, has conducted
extensive research in Syria over the last 2\1/2\ years. We have
issued, by my count, 11 in-depth reports documenting horrific
human rights crimes. We have conducted 10 in-country field
missions to document and support our findings, and my comments
today are based on that experience and the experience of
reviewing justice mechanisms over the last 20 years.
Let me start by saying that criminal prosecutions of the
crimes perpetrated in this conflict would present challenges
for any court system. And certainly as has been remarked,
justice is not a panacea to all the problems that are besetting
Syria today. Trials can only be but one part of a larger
package, sir, to bring some healing and accountability to the
situation.
It is, therefore, essential, I believe, to think
strategically in overcoming what are quite steep hurdles. And
this requires, I believe, making use of a range of judicial and
non-judicial tools at both the international and national level
in a mutually reinforcing spiral that avoids pitting one
against the other.
Given the exigencies that we see, we believe a three-
pronged approach sequenced in time offers the best
possibilities for justice, and I will walk through those. But I
want to say with respect, Mr. Chairman, I do take some
exception to a single-minded focus on an ad hoc tribunal.
Normally, in these type situations the starting point would be
with the national courts and strengthening those as the first
line of protection for civilians at risk.
I think we all know at this table, and in this room, that
in the near term any reliance on Syrian courts, even post-
conflict, is unrealistic. And while strengthening a revitalized
Syrian judiciary is an essential goal, it is a long-term one.
My point here, sir, is that the need for credible national
justice is clear, but the path to achieving it, frankly, is a
long one. I think, given that, we want to draw your attention
to the need for the establishment of a specialized judicial
mechanism embedded in a reconstituted Syrian justice system
with the active participation of international experts. We
believe over time that could work to strengthen domestic
capacity.
And, sir, I would suggest the War Crimes Chamber in the
state court of Bosnia offers important lessons in this regard.
This will not be easy in Syria. But if done correctly, it would
help bridge--build a bridge to the ordinary Syrian courts
through joint training and experience-sharing to bolster the
capacity there.
Now, on this difficult terrain, we believe the
International Criminal Court has a crucial role to play in
prosecuting those most responsible and being a reference point
for the special mechanism and evolving national courts already
mentioned. The ICC would look at all sides to the conflict and
have potential positive spillover effect on future national
proceedings as happened in fact in the former Yugoslavia and
Rwanda.
In spite of that positive impact, I think it is important
to acknowledge that, given the ICC's daunting mandate, the lack
of sufficiently robust state support and some policy missteps
over its first 10 years, there has been a shortfall in ICC
practice. Fortunately, the new leadership team at the court I
believe is cognizant of these problems and attempting to take
those challenges in hand.
Now, we know that the ICC could only obtain jurisdiction
through a Security Council referral. Is it impossible because
of Russia's implacable opposition to date to think that such
referral could occur? We have seen, as the situation on the
ground in Syria has changed, changes in Russia's position on
chemical weapons and humanitarian access to populations in
need.
I argue it would be a major mistake to preclude the
possibility of Russian support for a referral. I would also
add, unfortunately, the U.S. administration has allowed Russia
much more space by failing to itself, from Washington and New
York, come out strongly in favor of an ICC referral.
In conclusion, I think that the U.S. Government support for
an ICC investigation as one mechanism would encourage close
allies on the Security Council and raise pressure on the
Russian Federation to change its obstructive stance. I believe
with respect, Mr. Chairman, the solution most likely to provide
justice is not a standalone tribunal for Syria, because this
comes with significant practical obstacles.
Reference has been made to the delays in creating and
standing up a complex institution from scratch. And I believe
that such delay would remove any potential deterrent effect
that could be achieved by formally investigating crimes in
Syria now. An ad hoc tribunal would be more costly than using
an existing mechanism, and at the end of the day what would its
source of legitimacy be, both for the people of Syria and
internationally?
We recommend, in conclusion, that the administration
continue supporting documentation efforts, including the
preservation of evidence. This could be vital to future
prosecutions. We believe the administration should consider the
kind of Sarajevo-type chamber as playing an essential role, and
that the U.S. should stand up and support an ICC referral
instead of demurring behind concerns that Russia or China would
veto any Security Council referral.
And we think, lastly, strategy should be formulated with a
specialized mechanism and ICC investigation very much in mind.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Dicker follows:]
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----------
Mr. Smith. Thank you very much, Mr. Dicker, for your
testimony.
Chairman, would you like to--Chairman Chabot I think----
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Smith [continuing]. You said you had to----
Mr. Chabot. I do have a flight to catch, so I will try to
be relatively brief. Just a couple of questions. This week
international news sources have been highlighting President
Assad's forces laying siege to suburbs near Damascus, and the
resulting starvation of women and children.
How do you determine how far up and how far down you go?
For example, the soldiers say at the checkpoints that are
blocking people from coming in, do they go to the court? Who do
you--and I will just ask one of you, if you want to take that
on. How is that determination made?
Mr. Crane. Well, thank you for that question, Mr. Chairman.
I think it goes to really the challenge that one has when one
is trying to seek justice for victims of any atrocity anywhere.
It also depends on the mandate of the court itself.
For example, if it was a local Syrian court, then they
would be looking at all of the perpetrators and to include the
privates, the sergeants, what have you, whatever that
particular perpetrator may be. As you go up the various
options, which I highlighted to the subcommittees, then it just
depends on the mandate.
The Special Court for Sierra Leone's mandate was prosecute
those who bear the greatest responsibility, those who created
the conditions--aided, abetted, and caused--these horror
stories. So we, in West Africa, did not go after the foot
soldier. We went after the leaders, very much like Nuremberg
where we went after the top 23 so to speak.
So it varies. Everybody is culpable. The challenge that we
have here is we really can't prosecute everyone. It is almost
impossible--one, is to find out exactly who pulled the
triggers, what have you, but it is just politically not
sustainable to prosecute all of the individuals who commit
these horrific crimes.
Mr. Chabot. Okay. Thank you.
Mr. Crane. So, therefore, justice will be done, but I am
not sure that we would go all the way down to the individual
private at that particular time.
Mr. Chabot. Thank you. Mr. Rademaker, let me go to you
next. You had made a reference, and I would just like to kind
of maybe put it in the form of a question. The current
administration had in effect called for Assad to step aside
early on, and then Assad used his chemical weapons against his
own people. And now we are working with the Russians and with
Assad, and you don't hear too much anymore about, ``Well, he
has got to go.'' Now we are working with the guy.
What message does that send to other rogue leaders across
the globe who do nasty things sometimes to their own people?
Sometimes if they do horrific things, maybe they are going to
end up getting rewarded for it. Is that a message we don't
necessarily want to send, but maybe it was sent in this case?
Mr. Rademaker. Yes. Chairman Chabot, regrettably, I think
the suggestion of your question is correct. It will be
interesting to see how historians look back on this current--
the last few months of what happened in Syria and how they
explain or interpret the sequence of events.
But I worry that the historical judgment will be that
President Assad very cleverly decided to use chemical weapons
against his civilian population, killed about 1,500 people, and
the consequence of that was that he was able to remain in
power, that he pivoted and he focused the attention of the
international community on the existence of his chemical
weapons, he volunteered to get rid of them, but as a practical
matter the price of his cooperation in getting rid of those
chemical weapons had to be that he would remain in power.
I don't think that the Obama administration today would
concede that their policy on the question of the outcome they
would like to see in Syria has changed. I suspect they would
still say, ``No, no, we want to bring about the removal of
President Assad and his replacement by a democratic
government.'' But as we and the Russians work with that very
government to dismantle these chemical weapons over a long
period of time, and, you know, you heard my resume, I used to
be in charge of chemical weapons dismantlement for the State
Department, you know, we are still dismantling our chemical
weapons here in the United States.
It is phenomenally costly, phenomenally time-consuming, and
I don't know what the latest estimates are for Syria, but I
would say multiply by two or three whatever people are saying
because that is--in the real world that is how long it will
take. And so this is a process that will play out over a long
period of time, and I do think the de facto change in policy
has been disconcerting.
I mean, there have been a lot of stories recently about how
upset the Saudis are, because they thought America was going in
one direction and now it seems to be going in a different
direction, both respect to Syria and also potentially with
respect to Iran. And it is really an astonishing turn of events
that we have witnessed.
Mr. Chabot. Thank you. Mr. Chairman, if I have time for one
more question.
Mr. Smith. Of course. Please.
Mr. Chabot. Okay. Thank you. Maybe I will address this to
the other two panel members who I didn't ask yet. So there has
been some media attention recently to Syrian snipers targeting
pregnant women for sport, apparently. Is there evidence? Could
you cite previous examples where either a criminal court has
been set up and it actually does modify the behavior of people
on the ground? You know, if I do this, I may be prosecuted for
this? So the people do perhaps not carry out atrocities that
they might otherwise have carried out? Is there something you
can tell us along those lines, either one or both?
Thank you.
Mr. Dicker. Thank you. What comes to mind is, first and
foremost, the handling or recruitment of child soldiers in
Eastern Congo, Congressman. After the indictment issued or
charges issued against a Congolese warlord by the International
Criminal Court, our researchers in eastern Congo reported a
release of large numbers of child soldiers forcibly recruited
in many instances into armed militias, precisely because of
that charge against one of their own who was now in the dock at
the International Criminal Court. That is one example.
I want to be careful in not overstating, however, the
deterrent effect of justice because, let us be frank, it is new
and it is fragile. But I think part of the value of early--
``early,'' 2\1/2\ years after the start of the conflict--but
quick action through a referral to the ICC is it will put those
most responsible on notice that they could face criminal
charges. I think that stigmatization would be very helpful.
Mr. Chabot. Thank you. Mr. White, did you want to add
anything to that?
Mr. White. Yes, just real quickly. From my own personal
experience, not only as a Federal agent but certainly serving
in West Africa where we had some of the worst atrocities that
you could ever imagine occur, clearly accountability will
address the impunity issue. If you do not think that you will
be held accountable, you will continue to perpetrate these
crimes.
I know many of the rebels that I personally interviewed,
and some of which became insiders, had committed serious
atrocities, from determining whether a pregnant lady, for fun,
had a boy or a girl, they would take a 5,000 leone bet between
the two rebels. ``Is it a boy, or is it a girl? I will bet you
5,000 leones it is a boy.'' And they would determine that by
taking a machete and slicing open a pregnant woman and taking
the unborn child and determining whether or not it was a boy or
girl and then discarding it as a piece of rubbish.
I would submit to you that things have changed in Sierra
Leone, and holding them accountable, just like we did Charles
Taylor, that is the way to do it, because once they know that
they are not above the law and you do hold them accountable, no
matter where you are, that is why I support the singularly
focused tribunal. You get laser-focused on those that are
committing the crimes. You hold them accountable, and you tell
them that you are not going to be able to do this with impunity
anymore.
I think we did it. Things are calm in Sierra Leone. I don't
kid myself that it won't come back. But that is how you do it.
And I know from talking to these rebels personally they were
scared to death of being prosecuted. Once we landed and we
showed up, and they knew that they were going to be held
accountable, things started to change. That is what I submit to
you.
Mr. Chabot. Thank you. And I would like to thank Chairman
Smith for offering this legislation. I would like to commend
him for that.
And I yield back.
Mr. Smith. Thank you very much, Chairman Chabot.
Just a couple of questions to start off with. Mr. Crane, in
looking--and I did read extensively your Syrian Accountability
Project--one of the questions that I still have, who else is
doing something that might be parallel to what you are doing?
Because I know you have many stakeholders and many people who
are part of this effort.
And I am wondering, for purposes of prosecution, how
legally actionable is the evidence that is currently being
collected? You know, as you cite a time and place when people
were butchered or where mass rape occurred, you know, Dr. White
focused extensively on the centrality of the witness.
And I remember when we were debating the Yugoslav war
crimes tribunal here. We had--as a matter of fact, one of the
studies, the Shell study, suggested that we were losing and
almost like the dew in the early morning as the sun came out.
We were actually losing witnesses--forgetfulness, some were
dying, some were deciding ``I have had enough of this, I am so
traumatized.'' So time is of the essence to benignly capture
the witness, so that he or she or they can bear witness to the
atrocities in a meaningful way.
So I am wondering how much of that information/witness
files are we assembling that potentially could be turned over
to prosecutors with all of the protections of a witness
protection effort underway?
Mr. Crane. Thank you for the question, Mr. Chairman. First,
it is important to note that there are good-hearted people
around the world trying to seek justice for the people of
Syria. And they are doing it in many important ways. The Syrian
Accountability Project is an attempt to take almost terabytes
of information that is being gathered by these organizations
and be a bridge between that information.
Some of it is credible; some of it is not. A lot of it is
not. And build a bridge between this information and creating a
mechanism, a cornerstone, by which a local prosecutor, a
regional prosecutor, or an international prosecutor can then
build a case-ready case against these individuals who commit
war crimes and crimes against humanity.
So that is our purpose. It is, to my knowledge, the only
effort, but backed by a lot of good people. And I am honored to
be representing all of them, to include students from Syracuse
University College of Law who were here today who are working
diligently pro bono also to assist.
But, again, we are approaching this practically. Again,
with Dr. White and myself and many others from around the
world, we are looking at these from a practical point of view,
not an academic exercise. Can this case be proven? Can we
prosecute, regardless of what the forum may be? And the answer
is yes, it can be done, and it will be done.
Justice must happen for the people of Syria. How that
characterizes itself goes the panoply from the ICC, a variation
of that, all the way down to a local court. Your resolution I
think is important in that it lists the central item of that
resolution, and that is justice for the people of Syria. And I
applaud these subcommittees and you, Mr. Chairman, for bringing
the attention of the American people to this, and that is
justice for the people of Syria.
But at the end of the day, this case can be tried in an
appropriate forum so that justice can be done openly and
fairly. And the Syrian Accountability Project is just an
effort, not the effort, but an effort to assist that prosecutor
in that justice mechanism.
Mr. Smith. Dr. White, did you want to comment?
Mr. White. No, I don't really having anything to
contribute.
Mr. Smith. If I could ask you, Dr. White, then, in your
comments, your testimony, you really went into great length
about how important it is for the prosecutors, for the court,
to establish a trust relationship with the victims. You also
point out, and I know that, at least from witnesses that I have
met with, as a matter of fact, I chaired a number of hearings.
One of our witnesses brought women with her who had been raped
in Bosnia, and that was Bianca Jagger.
And when I met with the women, the trauma and the emotional
just pain and suffering and agony that they conveyed was just--
it was numbing. And then they were then being called upon to be
part of a prosecution, in the case of at least one of those
women, you know, very, very difficult. And I am wondering, over
time, particularly as, God willing, healing sets in with
someone who has been so traumatized, to relive it, all the more
reason why the sooner the better.
Delay is denial, because, again, important witnesses who
may have been hurt themselves or observed it are less likely to
come forward. I think the longer this clock plays out--
Professor Rabkin said that it is out of the question to launch
while Assad is in power.
I think if we follow that, and I think Secretary
Rademaker's point about the disingenuousness of standing up the
Yugoslav court, I remember contemporaneously as well it was
like there was a cynical side to that, but there was also many
of us who just wanted it to work and to work, you know,
robustly and to hold the bad actors to account. But in lieu of
doing nothing, that was their default.
So the question is, if you could really elaborate a little
bit further--and anyone who would like to take it--on the
importance of the witness. And, again, looking at your
suggestions, Mr. Crane, you said the domestic option is
probably--it is the preferred option, but of course that has a
built-in delay because there is no peace, sustainable peace, as
you point out in order for all of that to happen.
And you talked about the third option, a regional court,
with Arabs trying Arabs, Muslims trying Muslims, and Syrians
trying Syrians, as a preferred option rather than the
Westerners. Of course there could be a support capacity there,
you know, to help stand this thing up and as well as financial.
But if you could talk about witnesses even further, because
I don't think that sense of urgency is understood in Europe,
the United States, that--like to do a warning. These witnesses
will go away.
Mr. White. Well, you are absolutely right, and that is why
in my written testimony I strongly encourage this. I know there
is a lot of debate as to how this should be set up, whether it
is the ICC, should it be a separate standalone, should it be
domestic, I would just make the point today that whatever forum
is pursued it must be done immediately, because these witnesses
will dry up, not only for fear of being harmed but some will be
killed.
And also, if they don't feel that you are there--and this
is why it took us months and almost years to be able to extract
the trust in the witnesses. And if you are not there, they are
not going to come forward because they have to be fearful that
they will lose their life and life of other family members.
So the sense of urgency, if you do want to collect the
evidence, which I mentioned is principally witness testimony,
it needs to be done in a very short order.
Mr. Crane. I would support that statement. That is one of
the reasons why this international effort, the Syrian
Accountability Project, is putting in place on the shelf
quickly so that when it is time, when it makes sense, we can
move forward quickly. In any criminal situation, you do have to
preserve evidence. You may need to make sure that witnesses are
protected and that witnesses are alive for the future court.
So I think that it is important for these subcommittees to
understand that is why we have the Syrian Accountability
Project, and the Chautauqua Blueprint, copies of which these
subcommittees have, which is a statutory framework to create
any options that we have been talking about this afternoon, to
include the contemplation that perhaps the ICC prosecuting
those who bear the greatest responsibility, but the statute
itself also contemplates the prosecution of the next 100.
So there is a combination there, but I can assure you that
appropriate expediency is in the back of our mind. We want to
have this. It has never been done before, quite like this. We
usually wait, then we react, then we decide. What we are trying
to do here is to have something in place so that when the
appropriate political solution is finished then the
international community, the local and regional groups, are
ready to in fact put in place an appropriate justice mechanism.
Mr. Smith. Well, I think all of us are greatly indebted to
the work that you are doing to get this in place, so we don't
wait until after the fact. So thank you, and of course all of
you are bringing your extensive experience to bear on trying to
find solutions, and the subcommittees deeply appreciate that.
One of the things that Professor Rabkin said that I was
hoping to ask him about was that the work of the tribunals is
not well received. I was in Vukovar a month before it fell with
Congressman Frank Wolf. And the ``Vukovar Three'' were
eventually held to account at the tribunal. The atrocities that
were committed were horrible.
Well, I, along with Mr. Wolf, have met with a number of
people who were victims, and they couldn't have been happier
with the outcome that finally somebody was held to account. And
the same goes for Mladic and certainly Milosevic, who died. I
mean, it seems to me that the snapshot of, well, somebody might
be unhappy, well, the news media that was pro-government and
pro-Serbia and pro-Milosevic might not be happy.
And the disinformation and the propaganda, you know, it
takes a while to wean people away from that. But, you know, it
seems to me that well received ought to be seen in a larger
timeframe as well, because when you hold these people to
account, future generations as well as the victims, do feel a
sense of justice has prevailed.
And I wonder if any of you have any comment on that,
because I was struck by that. And whether or not, David Crane
and Dr. White, you experienced that yourselves. I mean, I know
that you had a tremendous rapport with the people. I remember
talking to you contemporaneously. You went out and held town
meetings and talked to people to explain the process, very
often at grave risk to your own security, but you did it
anyway. And so as explained, it seems to me that potential
hurdle could be overcome as well.
Yes?
Mr. Dicker. Mr. Chairman, if I may start this ball rolling,
two thoughts here. One I think there is a need to push these
international and internationalized mechanisms to recognize
their responsibility in making what happens in the courtroom
accessible to the communities most affected by the crimes. And
that is the challenge for all of these institutions, all the
more so, because they render justice in highly divisive,
polarized situations, as you were suggesting.
And I think it is important to remember, while we often and
should cite the Nuremberg precedent, it wasn't as if those
trials the following day seemed to bring the German people to
confront the crimes committed in their name. This takes a while
for these lessons, for this confronting who did what for what
reasons, to really seep down.
And I think we have got to allow a bit of a timeframe and
not impose on it snap judgments. I think that is very
important.
Mr. Smith. Yes, Mr. Crane.
Mr. Crane. I have got two examples of why and how justice
for people who are victims of horrors that are almost
undescribable in any forum, victims of atrocity. But when I
unsealed the indictment against sitting President Charles
Taylor in June 2003, it created a beginning, a political
dialogue, as well as a legal process that at the end of this,
over a period of 2 years, even though there was a lot of
diplomatic and political angst, it laid a foundation by which
the Liberian people could elect for the first time, freely and
without fear, a President, a female President, the first female
President in the history of Africa, and it allowed Liberia to
move forward with that new election.
The indictment of Charles Taylor created that political,
legal, practical condition by which Liberia possibly may have a
new future. That is a specific and direct result of an
international tribunal seeking justice. So that indictment
created that possibility. But for that indictment, it would not
have happened.
I also want to underscore, and I have said this probably
too many times in this hearing, and I do appreciate this time,
but let me just give you a small vignette that brings it home.
Yes, I did walk the countryside. In fact, Richard Dicker and I
and Al White also walked the countryside together, listening to
the people of Sierra Leone tell us what took place.
I was in Makeni, the headquarters of the infamous
Revolutionary United Front, Forday Sankoh's group, and Samuel
Bockarie, the Mosquito, because he liked to drink the blood of
his victims. And I was giving a town hall meeting in a school
for the disabled, many of them disabled by the RUF themselves,
blinded, maimed, mutilated. And I was--as is my custom, I stood
in the middle of the group as opposed to at a high table. I
wanted to let them know that I am listening to them at their
level.
And a young man stood up. He was deafened by the RUF
intentionally, and he was also maimed. He looked me dead in the
eye and he said, ``I killed people. I am sorry. I didn't mean
it.'' And he fell into my arms weeping. And as he wept, I
looked over and another young woman stood up, about 20 years
old, holding her child. She was missing a vast portion of her
face, and through cracked lips clearly looked me in the eye as
well, her only remaining eye, and said, ``Seek justice for
us.''
So this is why we do this. Regardless of comments by
individuals, this is why we do it. It is for the victims. It is
for the voiceless who cannot speak for themselves. So this is
an honorable thing to do.
And modern international criminal law is not perfect. It is
two steps forward, one step back. But it needs to be supported
in whatever capacity it is so the voiceless currently in Syria
can have some sense that life can go on under the rule of law.
Mr. Smith. Yes, Dr. White.
Mr. White. I just want to add one quick comment. I think
right now we could build on the recent example of Charles
Taylor as a former sitting head of state. With his conviction
in April 2012, in his recent appeals that was upheld--11 counts
and a 50-year conviction. Right now we have credibility that we
can bring people to justice and hold them accountable.
And just one quick story that I will not forget, as David
pointed out. We were out in the countryside, not only Sierra
Leone but Liberia, and when Charles Taylor left Liberia on
August 11, 2003, he looked the people in the eye and said,
``God willing, I will be back.'' That sent a shiver down the
spine of people not only in Liberia but Sierra Leone, and they
were fearful he was never coming back. And my witnesses
repeatedly would call me and say, ``Doc, Papay cannot come
back.'' I said, ``I promise you Papay will not be coming
back.''
And when we were at The Hague during--his recent appeals
verdict was read. We were in the chambers. I had a number of
witnesses call me from Sierra Leone and Liberia, and for the
first time in their lives, at least in modern times, the last
10, 15 years, they could breathe a sigh of relief because they
said, ``Doc, you said he is not coming back. Now I can go to
sleep tonight, because I know he is not coming back.'' That is
about as powerful as you can get, that you know you can't get
everybody, but you need to hold these people accountable and it
needs to happen quickly.
We have learned a lot of lessons. This doesn't have to take
a long time to get done. However it turns out, it needs to get
started, and it needs to get started now.
Thank you.
Mr. Smith. So would that add additional merit to Secretary
Rademaker's argument that Article 16 of the Rome Statute makes
it less likely that a guy like Charles Taylor could, on the
interim basis, go to Nigeria and then be apprehended to The
Hague under the Sierra Leone Special Court and then prosecuted?
Is the ICC that rigid? I mean, one of the additional
points--and maybe, Secretary Rademaker, you might want to
further elaborate on this--and why I believe that the
Russians--and I could be wrong, but why I believe the Russians
are less likely to obstruct the creation of such a court is
that it holds all sides to account.
And we know the al-Qaeda operatives and many of the Syrian
rebels are doing horrific things. And, you know, when you are
getting tortured you don't say, ``Hey, are you a leftist or a
rightist? Or anybody in between?'' You know that it hurts and,
sadly, often leads to your demise.
So does that lend credibility to why the ICC might not be
the suitable means for this to go forward?
Mr. Rademaker. I think the answer to that question is yes.
We have talked about a number of historical situations here. I
think a key distinction between the situation in Syria today
and, for example, the one in Sierra Leone when you gentlemen
began your work was Charles Taylor was no longer in power.
In Syria, President Assad is still in power, and that
creates a fundamentally different dynamic. And if the desire is
to bring him and perpetrators of gross violations of human
rights under him to justice, it is a much more challenging
situation than if these individuals have already given up
power.
And I believe that from a purely humanitarian point of view
the number one priority is to persuade them--well, to bring
about a change, so that they leave power and are replaced by
hopefully more democratic, more tolerant officials. And that to
me has to be the primary objective, and we are going to achieve
that through the use of diplomatic tools.
And so I think the first question is, of the various
options that we are looking at, how effective would they be as
diplomatic tools? And they all--all of the options suffer from
some of the same problems. You know, most of them that we have
talked about would require Security Council approval, or they
would require a change in government, so that the domestic
judicial system could function, for example.
But as we look at those tools and evaluate their potential
usefulness diplomatically, I submit that the most useful one
diplomatically for bringing about a political transition in
Syria is the ad hoc tribunal. The potential use of the
International Criminal Court will backfire as a diplomatic
tool. It will guarantee and I mean that literally, it will
guarantee that Assad will not leave peacefully, because you can
imagine the conversation.
Diplomats go to him and say, ``You know, we think it is
time for you to go. Will you please leave?'' And his first
question will be, ``What will become of me once I leave? You
have sicced the International Criminal Court on me. Can you
make that go away?''
And I know what the answer to that question is. The answer
to that question will be, ``We can make it go away for 1 year.
The Security Council will adopt a resolution. We guarantee you
the Security Council will adopt a resolution that defers the
investigation of your case by the International Criminal Court
for 1 year.''
And you can imagine President Assad's followup question
will be, ``Well, that is very good. What will happen at the end
of that year? I am interested because we are talking about my
life and my freedom.'' And the answer is--I mean, if we are
leaning far forward, the answer will be, ``Well, we guarantee
to use our best efforts a year from now to persuade a majority
of the members of the Security Council, including all five of
the permanent members, to extend that deferral by another
year.''
And he will say, ``Can you guarantee that they will extend
that deferral for another year?'' And the answer will be,
``Well, no, we can't guarantee that, but we promise to work
really hard to try and achieve that.''
And then he will say, ``And what happens a year later? You
are going to work really hard a year later.'' You know, he
would have to be really stupid to buy the notion that he is
going to escape International Criminal Court prosecution, that
for the rest of his life, once a year, the United National
Security Council is going to adopt a resolution deferring by
yet another year the ICC prosecution of his case.
And you can imagine all kinds of problems. You know, one
permanent member can object, and that is it. You know, a veto
would restore ICC jurisdiction. So someone in his case will
never buy the notion that the ICC can be called off, and that
to me is a fatal flaw in the design of the Rome Statute and of
the International Criminal Court. It makes the International
Criminal Court, the most useful, the most dangerous tool, the
most counterproductive tool we could possibly deploy in the
current situation.
An ad hoc tribunal could be constructed differently. It is
not subject to Article 16 of the Rome Statute, and so it could
be designed such that as part of a diplomatic settlement where
Assad agrees to give up and retire peacefully, the case is
withdrawn, the prosecutor stood down.
I submit that ending the Civil War in Syria is more
important than sending the people who have committed horrible
war crimes up until now to jail, especially when we understand
that no international institution, no international mechanism,
is ever going to hold more than 100 or 200 of these individuals
accountable. The vast majority will either escape justice--the
vast majority of people who have committed these kinds of
offenses in Syria will either escape justice entirely or, if
they are held accountable, it will be through the courts of
Syria under a different government, because in the--you know,
the Yugoslavia tribunal has handled fewer than 200 cases, the
Rwanda tribunal fewer than 100.
Eight hundred thousand people died in Rwanda, and most of
them died because they were hacked to death by people wielding
machetes. I mean, I can assure you that more than 100 people
were wielding machetes to kill 800,000 people in Rwanda. But
the Rwanda tribunal, because of capacity constraints, has only
been able to look at fewer than 100 cases.
So, you know, it is a frustrating situation, but, you know,
the answer the Europeans are going to give us on this problem
is it has got to be the ICC. And I think that is a prescription
for prolonging the conflict in Syria, which is--would be a
disastrous--it is a cure that would be far worse than the
disease.
Mr. Dicker. If I may, because I think Secretary Rademaker
puts some very important issues on the table that really do
need to be addressed--the interface, if you will, between
justice and peace. The imperative behind this hearing is trying
to bring some redress for those who have suffered horrifically
in Syria.
I think we make a misstep if reflexively we pit justice and
peace against one another. Certainly, we want both. We want an
end to the killing and blood fit in Syria. There is no question
of that. I think it is how we manage those two objectives, and
manage them smartly, without throwing justice under the bus,
and I believe that it can be done.
I think a good example of that, two good examples, though
one with individuals in power, was the Dayton negotiations
wherein Slobodan Milosevic attended, Radovan Karadzic. Ratko
Mladic did not attend because, as you know, they were
indictees. That peace negotiation went forward.
And the second example to cite is the one that David Crane
is most familiar with, the talks on Charles Taylor's departure
from power that were taking place in Accra when the prosecutor
unsealed his arrest warrant or indictment against Charles
Taylor. I think it is possible to manage these two carefully,
smartly, not just throw one against the other. So I would take
some exception, of course, to what Secretary Rademaker said.
Lastly, I would fear for any tribunal that had indicted
Bashar al-Assad to withdraw the indictment because a peace
settlement had been achieved. Let us go back to the victims in
Aleppo or Daraa. What will be the response and the confidence
in justice if, as a result of a political settlement, a
prosecutor says, ``Hey, forget it. Here is your get out of jail
free card.'' I think we can do better than that.
Thank you.
Mr. Smith. Mr. Connolly.
Mr. Connolly. Thank you, Mr. Chairman, and thank you for
holding this hearing. Fascinating discussion.
I guess I want to pick up on what Secretary Rademaker was
getting at, which I think is efficacy. And efficacy is, of
course, determined by the goal. If the goal is defined as let
us end the bloodshed in Syria, then it seems to me that
Secretary Rademaker has a point that even if we have to hold
our nose with respect to the status of Bashar al-Assad, the
greater good is served by the ending of bloodshed and the
succession of a government that tries to be inclusive.
The problem with that is it avoids closure, which Dr. White
and Dr. Crane were both--or Professor Crane were both talking
about, how important that was in your own experience both in
Sierra Leone and in Liberia.
We have models of closure. Some are violent. The Ceausescus
were apprehended fleeing Romania and were summarily executed.
Ghadafi was captured and summarily executed. Saddam Hussein was
captured by U.S. troops, interrogated, handed over to the Iraqi
authorities, I guess tried, and executed, in a process, however
we might do such a process.
All of those examples do not escape the attention of Mr.
Assad, presumably. And it seems to me the choice for him is at
least, you know, he has three options he has got to look at.
One is the Ghadafi choice, in terms of how it ends. And if that
is what you fear, if that is what you really think is the
threat you face, then you double down on your military option
to try to avoid that fate.
If you think that there is another option, that you are
facing unpalatable options, then maybe either the ICC or an ad
hoc tribunal is a better option, because at least you continue
to breathe.
The third, which you suggest, Secretary Rademaker, which I
think unlikely but it could happen, is you get a get out of
jail card pass through the Security Council or some mechanism
similar to that.
If those are your three options, Secretary Rademaker, at
some point if there is a deterioration in the military
situation in Syria, doesn't Assad have to look at one of those
three options even though none of them are very palatable?
Mr. Rademaker. Well, I think there was a very important
``if'' embedded there in the questions you just asked. I think
today President Assad is looking at a fourth option. He is
looking at fighting and winning.
Mr. Connolly. Right.
Mr. Rademaker. And, you know, if he starts to lose and it
becomes----
Mr. Connolly. Yes.
Mr. Rademaker [continuing]. That he will lose----
Mr. Connolly. Excuse me. I predicated my question with ``if
the situation deteriorates militarily.''
Mr. Rademaker. Right. Okay. Well, I am pointing out that
that is a hypothetical situation because----
Mr. Connolly. I understand.
Mr. Rademaker [continuing]. By all accounts today the
military balance is sort of tipped in his direction. And, you
know, I don't think Ghadafi's plan initially was to be hunted
down and killed in the street. I think he thought he could
fight to the end and, he believed, prevail. And I think there
is no reason today for President Assad to think that he is
losing. I think there is a lot of evidence that suggests at the
moment he is doing just fine.
And so, you know, we can all pick our analogies here, so
let me throw one out. You know, yes, these are unpalatable
choices, and letting, you know, justice go unrequited is
unpalatable, especially to the victims. But these kinds of
choices get made every day, including in our own legal system.
And, you know, plea bargaining--I am sure we have some
former prosecutors here in the room--I mean, plea bargains
happen in our system all the time, sometimes for purely legal
reasons, sometimes for other reasons.
I noticed in the news this morning there were protests in
Israel today because Prime Minister Netanyahu is releasing, I
think, 40 Palestinians convicted of horrific crimes against the
Israelis. Why is he releasing these people, you know, long
before their criminal sentences have been served? Well, I mean,
I think the reason he is releasing them is because Secretary of
State John Kerry broke his arm to release them, because he
wants to energize the peace process and get the Palestinians
engaged in negotiations with Israel.
That was the judgment of the Obama administration, to
strongly lean on the Government of Israel to release
terrorists, convicted terrorists, from Israeli prison because
that would yield a benefit, they believed, in a diplomatic
process that they think is very important. And Netanyahu
capitulated in the face of that pressure from the Obama
administration.
Now, was the Obama administration wrong? Was Netanyahu
wrong? I think if you adhere to the line that Mr. Dicker just
put forward, yes, they were wrong, because there are victims
protesting in Israel today that the perpetrators of horrific
crimes against their family members are being let go. But the
policy of the United States is to favor that, because we see
more important issues at stake.
Now, you know, so that is the analogy I put forward for us
to think about. You know, don't condemn my idea unless you are
prepared to condemn what Secretary Kerry has foisted on Prime
Minister Netanyahu.
Mr. Connolly. Yes. I don't think anyone was condemning your
idea. I think we were trying to explore it.
Mr. Rademaker. Okay.
Mr. Connolly. Professor Crane, Dr. White, what about that?
You were making the case that--rather forcefully that there is
a real deterrent effect just with the threat of prosecution,
and even more strongly so once in fact the indictment is handed
down.
Secretary Rademaker suggests the opposite, that actually it
could force Assad to figure he has no other escape route other
than doubling down to the military situation, and actually, you
know, perpetrating even more violence and crime against
humanity in Syria. What about that, that it could have the
unintended effect of actually worsening a situation rather than
the deterrent effect you described? And let us stick to Assad
and Syria for a minute.
Mr. Crane. Certainly. These aren't cookie-cutter approaches
and concepts that we are offering these subcommittees. The
Secretary is correct in that there has to be a political, as
well as a judicial, as well as a diplomatic mechanism by which
the horror that is going on in Syria ends.
We had a civil war going on in Liberia when Charles
Taylor--when I unsealed the indictment and Charles Taylor was
removed. The political solution at the time, even though we
were ready to actually receive him, to prosecute him, was to
move him off into another location for a couple of years. I can
see potentially, and it is just the potential, that that
happen, that he be removed, he agree to leave, and that he be
removed and a diplomatic and political solution for Syria
happens.
But over time perhaps a legal solution is also worked out,
and that is what happened with Charles Taylor. He was handed
over, but it is a political decision. The bright red thread of
all of this, Congressman Connolly--and, by the way, you used to
be my Congressman in northern Virginia. I moved to North
Carolina. My apologies, but----
Mr. Connolly. Lord Almighty.
Mr. Crane. But, you know, the bottom line, the bright red
thread of all of this is politics. We have a procedure, this
jurisprudence, the experience to prosecute Assad and anybody
else that commits these atrocities. But it won't be a legal
decision that happens related to it, however this manifests
itself, which could be anything in between. It will be a
political decision to end this.
Mr. Connolly. But, Professor Crane, if I may--and I want to
hear Dr. White's response as well--but Secretary Rademaker
makes a point that has to be addressed. But what if, despite
the best of intentions and the need for closure from victims,
by taking this action we worsen the situation and we actually
have him dig in his heels, especially in a situation where, as
the Secretary points out, militarily he seems at the moment to
actually be on the upswing.
Mr. Crane. Well, one is that I am not advocating that we
have a court now, create a court, indict the individual either
through the ICC, what have you. I think we have to have a
political solution, a cease-fire, and a stabilization of the
situation. And I think that is important.
But there also has to be justice. It is----
Mr. Connolly. But what is his motivation to do that, if he
is prevailing on the battlefield, and he knows what awaits him
from a cease fire and a negotiated settlement, is, you know,
prosecution in some kind of international court of justice,
whether ad hoc or the ICC, and an unpleasant fate upon
conviction?
Mr. Crane. Well, that is a great question, because the
bottom line is that very well could happen. There are several
scenarios, from a peaceful settlement all the way to what I
call the armageddon scenario where he goes down like Hitler
trying to yield his--put Syria in flames and everybody--
everything in between.
We might wake up tomorrow morning, Congressman, and find
out that he is in Russia or Iran, he has quietly left. That is
another scenario. This is kaleidoscopic. You know, the ``what
ifs'' can certainly be argued against any kind of justice. At
the end of the day, there is going to have to be some justice,
whether it is Assad or his henchmen or those who perpetrate the
crimes. At the end of the day, the international community may
say, ``Well, it won't be Assad, at least for now; it may be
others.''
It is really going to be, at the end of the day, not a
legal one, but a political one. And I am certainly not
advocating that we start a justice process now. I do think
there has to be, whatever that may be, a type of political
settlement. But what we are doing is just, should the decision
be made that justice be done, in whatever capacity that is,
greatest responsibility, everybody else. Then, we have that
capability.
I know I didn't answer your question, because I don't
really have an answer to be honest with you.
Mr. Connolly. Dr. White.
Mr. White. Certainly, there will be some political input to
this. But I think--and one of them will be case by case, but I
would still argue, as a former Federal agent, that we never ran
away from justice. And plea bargains, as he rightly states,
comes in many different forms.
But had we not indicted Charles Taylor and unsealed it, he
would not have left. Okay? And, look, we have got al-Bashir, we
have all of these other people, that is where we have a
credibility issue right now. And I will just be candid: That is
one of the issues facing the ICC right now is not bringing
people like this to justice.
At least if it is singularly targeted, singularly focused,
and you are dealing with the victims, up there you are in The
Hague, you are not really talking to the people, so the victims
get lost. But there is two other things you can do. I think
justice still needs to be pursued.
I can tell you right now, many people wanted us to drop the
indictment of Charles Taylor and this man held firm. Okay? We
just did not cave in to that. We did the right thing for the
people, and it all worked out.
But there is another process that we can go through for the
victims, and we had it in Sierra Leone and they had it in South
Africa, and that was the Truth and Reconciliation Commission.
It is not perfect, but it does allow the victims to come
forward, face their perpetrators, and have their day in a
public court which is another mechanism when these atrocities
occur.
So you have retributive justice and restorative justice. So
those are the two mechanisms that need to be thought through,
and they are very different. They are very complex. But you
can't let these people escape justice for just the fear of not
being--``Okay. If I agree to this, I am not going to get
prosecuted.'' That should be after the fact, that should be
part of any sentence or any--perhaps in the process along the
way taken into consideration.
But I would never remove the vehicle of justice along the
way. So restorative and retributive justice are the keys.
Mr. Connolly. Secretary Rademaker, you look like you want
to respond.
Mr. Rademaker. Not so much a response as just an additional
point that I think might be useful for everyone. Dr. White just
referred to the situation in Sudan where President al-Bashir is
under ICC indictment. He has been indicted since I think 2008,
so he was indicted 5 years ago for the first time. He was
indicted on a second count in 2010, so he has been indicted
twice.
And I would submit that one of the reasons he is still
there is because of the ICC indictment, that he, like Ghadafi,
like potentially President Assad in Syria, if he were to be
indicated by the ICC, he has been denied the option of a
graceful exit, which is the option that President Mubarak was
able to avail himself of in Egypt, and former President Ben Ali
of Tunisia, he was able to go into exile, but----
Mr. Connolly. Idi Amin.
Mr. Rademaker. Idi Amin, who was still living in Saudi
Arabia. But what I wanted to do was read two quotes, which I
think are informative, because with the Darfur crisis we have
had a series of United States special envoys whose job it has
been to solve the Darfur crisis and hopefully bring about a
political transition in Khartoum and the replacement of the al-
Bashir government.
And so in the Bush administration one of the special envoys
was Andrew Natsios, former USAID Administrator. At the time of
the first ICC indictment of President al-Bashir, Andrew Natsios
said the following: ``The regime will now avoid any compromise
or anything that would weaken their already weakened
position,'' because if they are forced from office they face
trials before the ICC.
So that was after the first indictment. Two years later we
had had a change in administration, we had a new Special Envoy,
Scott Gration, President Obama's special envoy. At the time of
the second indictment, Scott Gration said the following about
the ICC action, ``that it will''--and I am quoting--``will make
my mission more difficult and challenging.''
I mean, these are the diplomats vested with responsibility
by the President of the United States to try and solve, through
diplomatic means, the Darfur crisis. One is a Republican; one
is a Democrat. They agree on one thing--the ICC and its
criminal indictment of a sitting President in Khartoum, with
whom they were supposed to be negotiating to solve a
humanitarian crisis, the ICC action made their work much more
difficult, if not impossible.
And I would submit that to the extent anyone in Europe or
elsewhere, or if Human Rights Watch wants to encourage us to
bring in the International Criminal Court, they ought to listen
to what some of the diplomats who experienced a similar move in
a similar crisis a few years ago had to say about the upshot of
ICC involvement.
Mr. Connolly. And, finally, Mr. Dicker and then, Mr.
Chairman, I am done. Thank you so much.
Mr. Dicker. Well, again, these are such fundamental points
and so important to exchange ideas on. And, Congressman, I
thank you for focusing on this theme.
I would say, one, we are at the start or early stages of a
new era, if you will, and that is the potential liability of
sitting heads of state or other senior officials for mass
slaughter of civilians, the use of rape as a weapon of war,
forced displacement of populations, et cetera. So this is a new
development.
And I think the Secretary is absolutely accurate in his
comment that, yes, it makes the work of diplomats more
difficult. There is no question about that. But as law evolves,
the challenges become greater for not only diplomats but
officeholders. And I think that is a positive thing, because it
is a better world where genocide is proscribed as a criminal
act. Point one.
I think, again, we need to manage these tensions, and the
Secretary has underscored the tensions, and they can exist, but
we need to manage these tensions smartly. And my own
reflections on the Darfur situation was when the arrest warrant
was issued in 2009, there was quite a backlash that it would
collapse the Comprehensive Peace Agreement in Sudan, that
Bashir would pull out. No such thing happened.
I think we have got to be more thoughtful and careful-
thinking and not just projecting reflexively, if you will, the
worst-case scenario, though certainly I think we do need to
take it into account, but really work our way around it. And I
think that is essential not only to the furtherance of law but
to the needs and aspirations of victims.
Thank you.
Mr. Connolly. I would just say, in conclusion, I think all
of you have made great points, and one is torn. I refer to the
word I began with, which is efficacy. What is it we are seeking
to accomplish? We have to, it seems to me, be on our guard
about only making a point, even a moral point. Not that it is
invalid, but while people are being killed that is an
indulgence I am not sure they can afford. Maybe we can.
And the removal of Assad presumably is part of our goal.
Who replaces him is a very problematic question. So as we use
this tool, hopefully judiciously, I think Secretary Rademaker's
caution is well taken, which is we must be careful that it not
be counterproductive despite our good intentions, and the
result being that we actually inflict even more harm on the
people of Syria.
So we don't face easy choices here with this tool. We have
examples where it worked. We also have examples where it led--
well, in Sudan someone indicted not once, but twice, is still
very much in power, entrenched, and arguably, according to our
own diplomats, because we employed the tool, perhaps
prematurely, perhaps too crudely, perhaps because it is too
rigid. I don't know. But at least so far the story of Sudan
counters our good experience in Liberia; it didn't work.
So what will work in Syria? And what is it we wish to
achieve? Bringing Assad to justice as the only goal is
obviously not satisfying. It can't be our only goal. I wish it
were that simple. And so working through this thicket is going
to be no easy task, but thank you all very much for your
thoughts. Very, very enlightening.
Thank you, Mr. Chairman, for holding this hearing.
Mr. Smith. Thank you very much, Mr. Connolly.
I just have one or two final questions. And you have been
very generous with your time, and I deeply--we deeply
appreciate it. Mr. Crane, in your testimony you pointed out
that the ICC has a track record over the first decade that it
is spotty, it is questionable, it lacks the capacity and
political and diplomatic sophistication to handle such a
mandate, coupled with the challenge of gaining jurisdiction
over the atrocities.
The reality is that the ICC is just not up to the task. It
can barely handle the current caseload and investigations. You
also point out, and I would just note parenthetically, that
Greg Sipkins and I, from September 22nd to the 24th, were in
Jos in Nigeria and observing firsthand the atrocities committed
by Boko Haram.
And we were advised--I did not know that before I went
there--that the ICC is looking into the possibility of
indicting or initiating investigations into some of the Boko
Haram individuals, but they are talking about just less than
the number of fingers on my right hand. And that was in July,
and nothing has happened yet. Time is going on.
I would also note parenthetically as well that unless the
Web site has been updated, there were 18 prosecutions, one
conviction of an individual in the Democratic Republic of the
Congo, yes, a number of indictments that are very significant,
but very, very high-level people like President Bashir and
others, Joseph Kony, but very little in terms of anything to
show for it.
And I would also note you make a point, and I think it is
an excellent point, about Arabs trying Arabs, Muslims trying
Muslims, Syrians trying Syrians, as a preferred option. The
effort could or would be supported--they are talking about the
regional court--by the Arab League and Arab jurists
supplemented by Syrian jurists.
If you look at the ICC list of judges, it is Kenya, France,
Philippines, Mali, Nigeria, Argentina, Czech Republic,
Dominican Republic, Germany, Finland, Botswana, United Kingdom,
Japan, South Korea, Brazil, Italy, Bulgaria, Latvia, and
Belgium. I don't see any Arabs among the lists of judges,
making those who would sit less likely potentially to be
acceptable.
So I wonder if you just might want to touch on that. Again,
this capacity idea, Mr. Dicker points out that there could be
delays in costs with an ad hoc or presumably with a regional as
well. But it seems to me that the costs, if there is a will,
far outweigh the ongoing humanitarian debacle and crisis we are
facing with all of those IDPs and refugees, not to mention the
horrific spilling of blood.
So if money is an object, I mean, that would be absurd in
my opinion. Delays--I mean, we have learned from the Special
Court, from the ad hocs, we have--you know, if we can't apply
quickly a lessons learned, shame on us. But it seems to be
there is a lack of political will. By default, I would
respectfully submit the commission on inquiry on Syria in
February 2013 says, ``Yes, go with the ICC.''
But I think there is a better option, and I know you--and I
deeply respect your view--disagree. But, again, Mr. Crane, if
you could speak to that issue. I mean, look at those judges.
None of them are Arabs. And, again, you did talk about the lack
of capability on the part of the ICC.
Mr. Crane. Well, I think, just to address the immediate
question about Arab judges, unfortunately, even though we have
I believe 125 nations who have ascribed to the Rome Statute,
very few, if any at all, that I recall--Richard, you can
correct me, but I don't know of any Arab state that actually
has signed on to the Rome Statute. It is a vast blank in the
world related to the Rome paradigm.
Be that as it may, then a judge, an Arab judge to put it
euphemistically, would not necessarily be on that. Just like
you wouldn't see an American or a Russian or a Chinese judge on
the ICC is because they are not members of the state's party.
And the Rome Statute contemplates that you must be a member of
the state party that signed on to the Rome Statute to be in
those capacities.
So that is still problematic in the sense of we don't have
the important cultural gifts that the Muslim world, the Islamic
world, brings to any table. And that would be problematic
should the ICC have this referred to them.
In the general sense, that is my statement. I stand by that
statement. I am a disappointed and concerned supporter of the
ICC. I have seen it begin, I have worked with it, I want to see
it succeed, and they have their challenges. And so I am also a
pragmatist, because, again, I don't look at it as the ICC, or a
hybrid, or an ad hoc.
I go back to what I have said throughout this afternoon and
on the record for years. It is for and about the victims. And
whatever mechanism that allows justice for the victims of any
atrocity, then I am for that, whatever you want to call it,
frankly.
So the ICC exists. It is part of a major international
scheme signed onto by 125 countries. It is there. So my point
is is that we have to support that concept, try to make it
better, try to make it more efficient, seek justice for victims
of atrocity in other ways as well. It is not the default. In
fact, we tend to forget this at this table and elsewhere, the
ICC is a court of last resort.
It was never designed to be always in the front row, always
leading something. And I think that they have made a mistake
about that, and that is my concern. That is really--they are
always looking for something to be involved in, and in reality
they should be waiting for something to be referred to them
that is appropriate, the gravest of crimes.
The principle of complementarity is important. State's
party should prosecute their own, or other parties, and we
should be working on building the capacity of nations to
prosecute their own, and that is why I think honestly, and with
merit, that a Syrian type of court, internationalized or a pure
domestic, in my mind bolsters the idea of the principle of
complementarity. Let those who have been victims use their
justice mechanism and criminal system to seek justice, or, if
they can't or are unwilling or unable, then it be referred to
the appropriate court such as International Criminal Court.
Mr. Smith. Comments? If you could maybe for the record,
because I am sure--maybe you have it readily at your hands--
what the possible cost would be of a regional court or an ad
hoc court. Do you have any sense of what the order of magnitude
and cost would be?
Mr. Crane. Well, let us just look at it anecdotally.
Mr. Smith. Sure.
Mr. Crane. The Special Court for Sierra Leone in general
costs $25 million to $30 million a year. At first, when Dr.
White and I first stepped off the airplane with three suitcases
and our political assistant, which was the Special Court for
Sierra Leone, on 7 August 2002, we were pretty cheap. But that
first year was about $10 million. So we were averaging, give or
take, $35 million.
It is my understanding that the ad hoc tribunals cost on
the average of $150 million each per year, and you can multiply
that by essentially 20 years and you can see the cost of that.
The International Criminal Court's budget--Richard, correct me
if I am wrong--but I believe it is around $150 million a year.
So that is just a general balance of what these would cost just
based on what the previous courts cost.
Mr. Smith. Any final words? If not, I would like----
Mr. Dicker. If I may, Mr. Chairman.
Mr. Smith. Of course.
Mr. Dicker. Just to say I think that we are strong
supporters of the international court. We are not apologists
for it either. And by that I mean certainly there have been
problems. I think the court needs more political and diplomatic
support, and it certainly will need that in handling a Syria
referral. I think it is part of the evolving international
justice system.
And looking down the road, unfortunately, with a simple
standalone ad hoc tribunal, you are not likely, in the way that
one would hope, to maximally strengthen what is a new and
albeit fledgling struggling system. And I would say, sir, that
I think that is argument for this government in supporting the
emergence of this system.
Mr. Smith. With respect, one of the takeaways that I had
from the Sierra Leone court was it left physical plant
structures, prosecutors who knew, investigators who learned
from the best of the best, and with a country coming out of the
terrible agony that Syria will have to emerge from it seems to
me leaving behind, through a regional court or an ad hoc
tribunal, that kind of capacity, you know, is far to be
preferred to an ICC action that would occur at The Hague and
would be largely separate from a domestic capacity consequence
leaving behind. Am I right on that?
Mr. Crane. Well, certainly, the advantages of the hybrid
international tribunal in Sierra Leone, the Special Court for
Sierra Leone, did allow us to be present at the location. It is
the challenge of the various other tribunals; they are not at
the crime scene. So certainly the innate training that goes
with incorporating local prosecutors and investigators and
police, and what have you, goes along with that.
So, yes, there clearly is a legacy left, and at many levels
the ability of the people of West Africa and specifically
Sierra Leone, to have the capacity to manage complex
investigations in case it is there. It is obvious, if you have
a court at the crime scene, like Nuremberg, like Special Court
for Sierra Leone, the people see that justice and, of course,
the legacy aspect of it is obvious.
Mr. Smith. Thank you so very much, gentlemen, for your
extraordinary testimony. It is of supreme assistance to these
subcommittees, and we will proceed forward with this, and I
thank you for it.
Hearing adjourned.
[Whereupon, at 4:48 p.m., the subcommittees were
adjourned.]
A P P E N D I X
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