JUSTICE

Payam Akhavan, currently a professor at McGill University in Canada, has received a doctorate degree in Juridical Science from Harvard University and is an expert in the field of international law. He works as defender and prosecutor in international courts. Payam Akhavan was the first prosecutor of the post-Nuremberg international criminal courts, prosecuting criminals such as former Yoguslav president, Slobodan Milosevic, and helped with truth commissions and criminal tribunals in other countries such as Rwanda, Cambodia, and Guatemala. On the subject of Genocide, he has written a book*, submitted a report to the UN Secretary-General**, chaired a global conference and co-produced a documentary***. He is a co-founder of the Iran Human Rights Documentation Center and has the role of prosecutor at the Iran Tribunal. Payam Akhavan was only nine years old when his family immigrated to Canada, where he is currently based though he continues to travel around the world. The following interview was done in September 2012. -- Soheila Vahdati

Let us start by talking about your specialty area of international law. Could you explain what that means, and what types of courts hear the cases?

I specialize in international human rights and international criminal law. In particular, I served as the first Legal Advisor to the Prosecutor’s Office of the UN Tribunal for the former Yugoslavia at The Hague in the 1990s, and also served with the UN in places like Rwanda, Cambodia, Guatemala, and East Timor, and since then I have appeared as legal counsel before several different international courts and tribunals. This has included everything from advising the Government of Uganda on the prosecution of the vicious Lord’s Resistance Army before the International Criminal Court for the abduction and forced conscription of 20,000 child soldiers to an important freedom of speech case before the European Court of Human Rights on behalf of a Turkish professor that was prosecuted for writing a book about the 1915 Armenian genocide. I have integrated these experiences in my scholarly publications since I think that academics are often too distant from reality. Human rights law concerns the obligation of governments to respect the fundamental rights of persons under their jurisdiction. This includes the prohibition of arbitrary executions, torture, imprisonment without a fair trial, or discriminatory denial of rights based on political or religious beliefs. International criminal law concerns individual responsibility for offences such as war crimes and crimes against humanity, which consist of serious human rights violations such as arbitrary executions, torture, or persecution on political or religious grounds. War crimes applies in situations of armed conflict whereas crimes against humanity applies to any widespread or systematic policy of violating fundamental human rights. The difference is that in human rights law, the government is held responsible, whereas in international criminal law, the individual is held responsible and punished through imprisonment. The biggest problem in international law however, is enforcement of the law. Governments have sovereign rights, so international courts and tribunals only have jurisdiction where a Government has consented. It is usually the Governments with the worst human rights records that are most reluctant to accept any judicial scrutiny of their actions.

It must be remembered that since large-scale abuses are usually committed as a matter of government policy, it is often political or military leaders that are responsible. If a government is committed to respecting human rights, it may still have some officials, like prison guards or police or security forces that on occasion commit torture or other crimes. But this does not reflect a policy of human rights violations. It is an exception to the rule. Crimes against humanity occur because it is the policy of a government to use massive violence and terror to control its citizens.

You prosecuted Slobodan Milosevic while he was the president of Yugoslavia!

In international law, officials don’t enjoy immunity simply because of their official position. This principle was firmly established in the Charter of the International Military Tribunal for Nuremberg where Nazi leaders were prosecuted irrespective of their official position. The same applied to Yugoslav President Slobodan Milosevic when we prosecuted him for the ethnic cleansing of Bosnian Muslims and Kosovo Albanians. So the difference between human rights and international criminal law is the difference between government and individual criminal responsibility, including that of public officials. So for example, we can say that following the violent repression of the 2009 post-election protests, the Islamic Republic is responsible for large-scale human rights violations such as arbitrary executions, torture, unlawful imprisonment, and persecution of political and religious groups, and that they are under an obligation to provide compensation to victims and to cease from committing such acts and to prosecute the perpetrators. This is a matter of State responsibility. But we can also say that particular officials, for example the Tehran Police Chief Mr. Radan, is individually responsible for tolerating, instigating, ordering, or even participating in such crimes, for which he must face prosecution before an independent and impartial tribunal, and be sentenced to prison if proven guilty.

Why is having the International Criminal Court (ICC) significant in our era?

The ICC was established in 1998 upon the adoption of its Statute at the Rome Diplomatic Conference. It is the first permanent international criminal court. Although it was envisaged to have such a court after the Nuremberg Judgment in 1946, the UN never succeeded because of Cold War politics and lack of political will by States. After the end of the Cold War, with the outbreak of ethnic cleansing in former Yugoslavia in 1991, and the horrible genocide in Rwanda in 1994, two ad hoc tribunals were established, and I had the privilege of working with both of them. These created an important precedent for the ICC. The ICC is different from the International Court of Justice because it deals with individual responsibility rather than government responsibility. The ICC has jurisdiction where national courts are unwilling or unable to prosecute international crimes. For example, courts in Sudan are not willing to prosecute President Bashir for genocide in the Darfur because political power is in the hands of his supporters. In Libya however, the issue in the prosecution of Saif Al-Islam Gaddafi is not willingness, but ability; are the Libyan courts able to prosecute given the chaos following the overthrow of the Gaddafi regime or do they lack the capacity? If they lack the capacity, should the defendant be transferred to The Hague for prosecution or should the Libyan courts be given assistance to build their capacity? Typically, the courts of a country emerging from mass-murder and years of authoritarian rule, will be deficient in some way, but through international assistance and capacity-building, this can be remedied. So whether national courts are able or unable requires a reasonable period of time to determine in a transitional situation. The ICC has filled in a very important gap because if Heads of State and government leaders are not held individually responsible for the most serious crimes, then international law cannot be seriously upheld. Crimes are committed by men, not by abstractions that we call governments. Political leaders cannot hide behind the veil of State power. They must understand that power is a responsibility to respect the rights of their citizens and not a license for abuse.

It is understandable why Iran has not joined the ICC, but why do you think the US has not joined the ICC?

That is a very good question. As I explained, countries like Iran have not signed the ICC Statute because of their poor human rights record. The US is in a somewhat different situation because its main concern is that its armed forces will be subject to politically motivated prosecutions. It is not that concerned about its domestic human rights record, which has problems but not at the level of crimes against humanity. It is more concerned with its freedom to engage in military operations abroad without fear of prosecution. Other powers like Russia, China, and India have the same concern. Powerful nations have a different relationship to international law than smaller nations. This has always been the case, because powerful nations believe that they can achieve their objectives through other means. The Bush administration was adamantly against the ICC, especially after September 11th and the invasion of Iraq which was highly controversial. But after the Darfur genocide starting in 2003-04, that position was somewhat relaxed because it could not oppose the UN Security Council’s referral of this situation to The Hague even if it was a European initiative, and the Obama administration which is more internationalist is even more supportive. But the US is unlikely to sign the ICC Statute any time soon because of the Pentagon and other institutions that are opposed.

It is important to point out as I mentioned briefly before that although a majority of countries in the world have signed the ICC Statute, mainly from Latin American, Europe and Africa, the US is joined by other major powers such as China, Russia, and India, who also have no desire to subject their officials to judicial scrutiny. So just as the US would not want its invasion of Iraq in 2003 to be prosecuted as aggression, Russia would not want its invasion of Georgia in 2008 to be treated similarly. It seems that it is usually the smaller nations that turn to international law whereas powerful nations rely on their military and economic power to achieve their objectives. It is very typical of such institutions. The International Court of Justice has the same problem. None of the permanent members of the UN Security Council, with the exception of Britain, recognize its compulsory jurisdiction. The US withdrew after the Court ruled against it in the Nicaragua case in 1986 and France withdrew after Australia and New Zealand challenged its atmospheric nuclear tests in the South Pacific in the 1970s. But the fact that major powers do not fully participate that doesn’t mean that these institutions cannot still serve a useful function, and perhaps it is good that the ICC has succeeded despite initial US opposition, because it shows that international institutions are not entirely dependent on powerful States.

You have been the first Legal Advisor to the Prosecutor’s Office of the International Criminal Tribunals for the former Yugoslavia and Rwanda at The Hague. Can you share your experience briefly on both professional and personal levels?

I was the first prosecutor, while still in my 20s, at a time when the only historical precedent was the Nuremberg Tribunal that prosecuted the Nazi leaders. Yugoslavia was still at war and those responsible for ethnic cleansing were still in power. So when I came to The Hague as an idealistic young lawyer, I understood that the Tribunal may be merely symbolic and never arrest the perpetrators. After the Dayton Peace Accord ended the war in Bosnia, the UN peacekeepers realized that the ethnic hate-mongers and warlords that were indicted by the Tribunal were standing in the way of peace and reconciliation so they agreed to arrest them and surrender them to us. It was a turning point because without a force that could implement arrest warrants, we could not realistically prosecute anyone. It was an extraordinary moment when Yugoslav President Slobodan Milosevic showed up as a defendant in The Hague. He was once a seemingly untouchable political leader and here he was answering for his crimes. That was a powerful image that I think every political leader should remember: you may be in power today, but tomorrow you may fall from power, and be called to account for your crimes. Prior to the Tribunal, the UN had never punished the many criminal leaders, like Idi Amin in Uganda, Mengistu in Ethiopia, or Pol Pot in Cambodia. The Milosevic case established a powerful precedent and shattered the taboo that made people believe that mass-murderers are beyond the reach of the law. It is part of a broader historical process of transforming the unfortunate and deplorable culture of impunity to a culture of accountability in which gross abuses of power will have consequences and not be rewarded.

Working at the Tribunal as a young lawyer was an exceptional experience and it is really every lawyer’s dream to be part of history and to contribute to judgments that will be written about and analyzed for many years to come. But it was also a very emotionally intense experience to see all the horrors and suffering. In the village of Ahmici in Bosnia, I investigated the massacre of about 200 Bosnian Muslim civilians. One scene I will never forget was the lifeless body of a mother with a child in her arms; both had been shot at close range. Another image from hell was a family that had been hiding in the basement who had been burnt alive. And snipers even tried to assassinate my colleague and I because they did not want us to report the truth to the outside world. The scenes of mothers digging for the bodies of their children in mass-graves, of children that had been brutally raped, the destruction of towns and villages through relentless bombardment, these crimes were simply unspeakable. They were beyond any conception of what human beings are capable of, our capacity for cruelty. The emotional toll of such work over the years can become very heavy and have many negative consequences on family life and the ability to forget and live a normal life. The anger at such inhumanity sometimes never leaves your mind and it leaves you no choice but to keep on fighting for justice.

It is strange however that there were also many scenes of humanity which restored my faith in human goodness. I remember stories of people protecting their neighbours and hiding them in their basement so security forces would not arrest them, like in Yugoslavia and Rwanda. One of my Rwandan friends had three small daughters and since she was a Tutsi she knew she and her children would be murdered if she was caught by the Hutu extremists. She managed to hide in the famous Hotel Rwanda which later became a Hollywood film even though the manager of the hotel was himself a Hutu. There were many stories of people that refused to participate in ethnic and religious violence because their conscience would not allow them to do so. I even remember the story from my childhood of Nosrat Yaldai, a Baha’i woman imprisoned in Shiraz in 1983, who was badly tortured, and a young Muslim woman with a child in the prison came to her assistance even at the risk of herself being tortured. These moments of light in the midst of darkness are always a cause for hope. I learned a lot about human nature in those years; about the best and the worst we are capable of. And it was very humbling. So all the professional success and the many conferences I spoke at and the awards I received, this was irrelevant in the face of the gravity of the crimes that had been committed. I think this experience opened me to a much deeper understanding of what justice means and why it is important; of how resilient the human spirit is in the face of situations where emotional survival seems impossible. Without that understanding, we can never achieve true justice.

You have been to Cambodia, Guatemala, and East Timor. Could you talk about the missions you were involved with, as well as your role and experiences in those countries? Did you help them come up with a court charter, or trained prosecutors and lawyers?

In Cambodia, I helped establish the Tribunal for prosecution of Khmer Rouge officials. The process of negotiations between the UN and the Government was very complex and broke down and I served as an advisor in helping resolve the differences to a court could be established that had both national and international dimensions; a “mixed” court with both UN and Cambodian judges and prosecutors. It is very difficult in such countries to establish judicial institutions that will oversee highly controversial trials. Since the Khmer Rouge crimes were committed in 1975-79, most leaders were very old, but it was still very important for Cambodians to deal with their past. Some 2 million people had been killed in the name of a communist revolution and there was a deep trauma, a national trauma, that needed to heal; the truth had to be told. Establishing this Tribunal was the last chance for justice. The Khmer Rouge had been condemned by the world community when they were in power, but when the Vietnamese backed Hun Sen regime overthrew them, the West and South East Asian countries supported the Khmer Rouge to counter Vietnamese influence in the region. So there is a reason why they escaped justice for so long. It is a terrible example of the cynicism of international politics, of the culture of impunity that puts power before justice.

In Guatemala, I advised a UN Truth Commission looking in to the mass-murder Mayan Indians in the 1980s by a pro-US military regime engaged in counter-insurgency against communists. Many villages were simply wiped off the map. At the conclusion of the civil war between leftist insurgents and the right-wing military government, addressing past human rights abuses was essential to national healing and reconciliation. And it was important to take highly politicized and controversial issues and incidents and to subject them to the objectivity and impartiality of the law. So for example, the fact that communist insurgents used rural villages as a base for their operations did not mean that the army could come and massacre all the civilians and burn their homes and property as a military counter-measure. The Geneva Conventions require the armed forces to distinguish between combatants and civilians. So recognizing that these crimes occurred and analyzing them from the viewpoint of human rights rather than politics was very important in the democratic transition of Guatemala, in strengthening civil society, in building a culture in which impartial institutions could speak truth to power. One of the very contentious issues that I helped resolve was whether the mass-killing of thousands of Mayan Indians in the notorious “Ixil triangle” qualified as the crime of genocide, and my advice was that it satisfied all the legal elements. When the Commission publicly announced its judgment, many of the victims’ families celebrated. There was a sense of relief, a lightening of the terrible burden of the past, of the dark clouds that hung over the nation. It was a remarkable experience.

In East Timor, we were looking into crimes by the Indonesian army against civilians because of their determination to crush a liberation movement for independence. Emerging from years of war and atrocities, the judicial institutions were weak, so there was a need to help train and assist prosecutors and judges, so they could investigate and prosecute these crimes. There was a need for capacity-building, for encouraging justice instead of vengeance.

All of these countries had to deal with past abuses in some way, to facilitate a meaningful and lasting democratic transition. And in every instance, there was some ideological or political justification to commit crimes against innocent people. It really didn’t matter whether they were right wing or left wing or whatever; a victim is a victim, and there is always an excuse to murder and torture and imprison opponents. That is why building a culture of human rights and accountability is so important. As a jurist, my job is to help build such institutions, whether as an architect of the constitution or charter of an international criminal court, as an advisor to a truth commission preparing its report, as an educator training judges and lawyers in the country emerging from dictatorship and violence, or simply as a lawyer appearing in court to argue a case. It is all about building and strengthening institutions as well as promoting a culture in which both leaders and the people understand the difference between political conflicts or religious and ethnic differences and the fact that human rights are not dependent on whether we agree with other peoples’ views or identities.

When a tribunal is dealing with the brutalities of the past, in addition to the top leaders, what other official ranks are usually considered responsible? Is “responsibility” defined as top level decision making, or does it also include the execution of criminal decisions by the rank and file? How about “inaction” of some officials in the face of atrocities by other officials?

Responsibility applies to anyone, no matter how high or low in the hierarchy, that orders, instigates, commits, or aids and abets, in the commission of crimes. However, courts, whether international or national, cannot prosecute tens of thousands of perpetrators. So there is often a prioritization of cases based on those that are “most” responsible. The prevailing view is that those that are in the top leadership are most responsible because they create the context within which ordinary lower-ranking perpetrators commit crimes. So if a leader incites hatred and violence and even rewards those that commit murder and torture, then that sets the tone for the wider public, whereas a leader that condemns and punishes such abuses, even if he cannot prevent each and every crime, encourages a culture of accountability and the rule of law. Because it is not possible to punish all perpetrators, certainly not if you intend to hold fair trials, which will necessarily be costly and lengthy, then a truth commission is one way of including the broader crimes that have been committed, and to give thousands of victims and witnesses to have the opportunity to tell their stories even if they cannot participate in criminal trials.

An important objective of criminal trials against former leaders is to deter future leaders from committing the same abuses, and discouraging the public from seeking vengeance. But there is a wider process of healing, of restoring the humanity of victims, and also of perpetrators who are often brainwashed into committing crimes for the benefit of powerful leaders, which process goes to building a different culture. So for example, while it is important to prosecute Iranian leaders responsible for crimes against humanity, it is also important to have a truth commission that travels throughout the country and allows tens of thousands of people to tell their stories. It is also important, for example, for a future democratically elected leader, to go to Khavaran and lay flowers and beg for the forgiveness of the mourning mothers and others who have suffered. It is important to turn Evin prison into a museum, like Auschwitz in Poland, or Tuol Sleng in Cambodia, so that people remember the past, and avoid repeating the same mistakes in the future. So while it is necessary to prosecute at least some elements of the leadership, we should not have a very narrow view of justice, which is a much broader concept and process.

Your book with the title “Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime” has just been published. Could you briefly talk about it and whether it is written for law professionals or the general public?

This book is about how we use words such as genocide to condemn atrocities and thereby to rationalize human suffering and pretend as if we have achieved justice. It is about how we deceive ourselves that with the right platitudes and symbolic condemnations, we have achieved justice. In the UN, I remember endless debates about whether this or that situation is or is not genocide, or the adoption of worthless resolutions as a substitute for effective action. I think that until people, especially elites in decision-making positions, until they are able to emotionally connect with the reality of human suffering, until they learn genuine empathy, they cannot take meaningful action, and will instead busy themselves with abstractions and self-righteous words and concepts instead of doing the work that needs to be done. That is what the book is about, and although it has a legal dimension, I think it is accessible to the general public.

You had a role in the recent famous case of Hamdi vs. Rumsfeld? What was your role and how did the case end?

After the establishment of the Guantanamo Bay prison and the abuses and denial of fair trials against captives, a group of us including prominent academics and lawyers submitted a brief to the US Supreme Court arguing that under the 1949 Geneva Conventions, even irregular combatants such as the Taliban had certain rights. Many of my friends were angry, in the post 9/11 context, that I had agreed to participate in this case against the US Defense Secretary. But I reminded them that human rights is not about whether we agree with the ideology of a particular prisoner. Human rights means that you have rights because you are human. The Supreme Court ruled in our favour and there were certain improvements to the condition of prisoners, although the camp was not closed, not even by President Obama who promised it would be closed.

This was a stain on the reputation of the US which was used by many authoritarian regimes like Iran to justify their own abuses. But to be fair, while I disagree with the mistreatment of some 200 prisoners in Guantanamo, the scale of the violations is far far worse in Iran, and Syria, and Sudan, and other countries that seek to justify their own massive abuse by pointing the finger at the US. And the logic is truly absurd: because the US abuses prisoners in Guantanamo, we can abuse our prisoners too! Or because Israel violates the rights of Palestinians, then we should not condemn abuses committed by the Islamic Republic of Iran. It is interesting to note that whether someone condemns or supports Israel, Israel generally does not torture its own citizens whether they are Jews or Arabs, even if there is mistreatment of Palestinians in the occupied territory. In Iran, it is Iranian officials that are torturing and murdering fellow Iranian citizens! We cannot stop fighting for justice in Iran just because there are other situations of concern. This logic is absurd and only serves the interests of those that want to stay in power and deflect attention away from their abuses.

Recently, a prisoner at the Guantanamo Bay died while still it is not clear why he was in custody. At the same time, we hear of the US drones killing civilians in Pakistan and Yemen. Is there any objection at the international level to such violations of human rights by the US?

I think there has been considerable condemnation of Guantanamo as I previously explained. With respect to targeted killings by drones, the issue is legally complex and unresolved. In a law enforcement operation, it is not permissible to kill without first seeking to arrest an accused person. This is like a police operation in which an accused is arrested and lethal force is only used in self-defense if there is a treat of serious harm to the police. But in war, it is permissible to kill combatants, even by surprise. There is no requirement in war to inform your opponent that you intend to kill them. This is the sad reality of war, and under the Geneva Conventions, killing combatants it is a permissible exception to the prohibition of murder in human rights law. The question is whether Al Qaeda and Taliban and others subject to drone attacks are combatants under international law or accused persons with the same rights as defendants in criminal trials. The answer is not always straightforward and international jurists have had many debates about this still unresolved and undeveloped area of the law. But there is in principle no difference between killing by drones, and killing by other means such as snipers, bombs, or other methods.

What is important to bear in mind is that reasonable care must be taken to protect civilians against harm. Even though there is sadly "collateral damage" in war even if great effort is taken to spare civilians, such incidental harm must be "proportionate" to the military objective. So for example, it is not permissible to throw a 500 kilogram bomb in a crowded urban area just to kill a few suspected terrorists. Other, more limited means have to be used. The same applies to drones, and the killing of enemy combatants must always be weighed against protection of civilians. This is the essence of what the Geneva Conventions are about.

The laws of war legalize murder but subject it to restrictions and limitations. Some say that the Geneva Conventions are an important effort to humanize war and prevent its worst excesses. Others say that war is inherently inhuman and it is futile to try and impose legal constraints. I have been in many war zones and seen how in the heat of the moment, when passions are intense and a soldier must act in an instant to save his own life, how difficult it is to make rational choices or to observe the law. But I still think it is important to do what we can to at least limit violence in war, even if it is an inherently violent activity. War today is far more humane than it was historically, for example in the Second World War, when entire cities would be destroyed through indiscriminate bombing, like in Berlin and Rotterdam and London and Tokyo where thousands were killed. There is a lot more caution today than there was in those days, in part because of technological improvements, and in part because of public opinion. Some believe that war is always wrong. Others believe that was may be necessary in certain exceptional circumstances, whether in self-defense, or to save innocent civilians from being slaughtered, like in Rwanda in 1994, where UN peacekeepers could have saved thousands if they had the mandate to do so. And whenever there is war, whenever there is bombing and destruction and violence, there will almost always be civilian casualties, even if the most advanced technology is used, and even if the greatest care is taken to focus on military objectives. The laws of war often seem to be in contradiction: war is the failure of law. But we must still try and impose some minimal constraints.

* Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime, Published by Cambridge University Press, 2012

** Report on the Work of the Office of the Special Advisor of the United Nations Secretary-General on the Prevention of Genocide //muse.jhu.edu/login?auth=0&type=summary&url=...

*** Genos.Cide: The Great Challenge