Question and Answer Session at the Forum Hosted by the Women of Ateneo

Stephen J. Rapp
Ambassador-at-Large for War Crimes Issues 
Forum Hosted by the Women of Ateneo
Makati, Philippines
May 10, 2011

Audience Q&A

QUESTION: Would it not have been better to try Saddam Hussein and Osama bin Laden at the International Criminal Court?

AMBASSADOR RAPP: It would not have been possible to try either Saddam or Osama in the ICC for the major crimes for which they were alleged to be responsible, because these occurred before July 2002 when the ICC came into being. The Court cannot try any crimes committed before that date, even on referral from the UN Security Council.

Regarding Saddam, he was tried by an Iraqi court, but his trial was based on special legislation adopted by Iraq that reflected international law. It was decided by the Iraqi people—they did not want an international court, they decided they would do it themselves and seek international assistance. A process went forward, not just as to Saddam but also on other leaders of his regime. Dozens of people have been tried by the Iraqi High Tribunal for crimes including the genocide committed against the Kurdish people in the Anfal campaign during the Iran-Iraq war.

The United States and other allies, including the British, provided help in the process. If you look at the statute you will see that is very much like the statute of the International Criminal Court. The Iraqi judges have received advice from renowned international judges and attorneys with experience in international cases have served as advisors to the tribunal. But the Iraqi process has been criticized because of the death penalty and the way in which Saddam and a few others were executed.

I will note that I have been to Baghdad and met the judges, and am very familiar with their work. The world followed the Saddam trial, but afterwards the judges have tried dozens of other defendants for massive crimes, such as the genocide of the Kurds, and the destruction of the Marsh Arabs—one of the worst crimes ever because it involved the destruction of a people, an environment, and a whole way of life. These crimes were perpetrated by Saddam and others. It was part of the conduct of a regime that operated by suppression and violence.

I would also note that the judgments published by the Iraqi tribunal have been lengthy and have cited legal decisions from international courts in The Hague and Arusha. While there have been five or six executions, dozens of other persons have been convicted and received varying prison terms, and some have been acquitted. We have to remember that this is a national system. It is theirs. It is their national norms. It may not be to everybody’s liking, but that is the world we live in. We try to work at the national level first and foremost, and we cannot always expect it to be perfect. We want to have something that as good as we can.

On the Osama question, I do think that it is important to note that while it happened before the ICC statute took effect, the crime of Osama bin Laden on September 11, 2001, was a crime against humanity. Of course, it was also an act of terrorism, which is a crime under international humanitarian law based on the Additional Protocols to the Geneva Convention. We obtained convictions for the international crime of terrorism at the Special Court for Sierra Leone against defendants who terrorized villages by chopping off hands and raping women. It was terrorism because they committed these acts to intimidate and gain political advantage. However, the authors of the ICC statute decided not include terrorism as a crime in the statute, because it was a controversial issue. But the acts of 9/11 were crimes against humanity, because they were “widespread or systematic” in having targeted four buildings full of civilians, and were done as part of an organization's plan or policy. Osama could have been charged with this crime had the ICC statute been in effect at the time.

But regarding what happened to Osama earlier month, it is our position that the United States was in an armed conflict with the Al Qaeda from September 11, 2001, to the present. It is an armed conflict like the one we had with the Japanese government in World War II, where we were justified in attacking the commanders of those who were attacking us. It is not an action against civilians; it is not a police operation. We do not have to knock, and we do not have to be shot first before we can shoot back. We can target the commanders. If the targeted person voluntarily surrenders, throws up a white flag, throws up his hands, then we can take him prisoner and prosecute him for war crimes in our courts. We would have done the same thing with him in terms of having a trial.

But obviously that did not happen. In the future, however, it is important to recognize that there is an overlap between acts of terror and other atrocities. On 9/11, innocent civilians from scores of countries, including more than a dozen Filipinos, were murdered because of somebody’s political agenda. These were atrocities and should be recognized as such. There needs to be an ability to prosecute these cases. This will often be at the national level, but it should also be possible to deal with them within international institutions when circumstances arise.

QUESTION: I am Nisha from Bangladesh. First of all I want to thank you for your assistance with our International Crimes Tribunal and for helping us in solving many of the issues in this process. I have a question. You have many conflicts between the states in the southern part of the country, especially with the indigenous people. So many people are killed. The people there do not want to have this dam because it makes for a loss of product. The war is going on. Can the ICC point a way, or take action to stop this?

AMBASSADOR RAPP: The question is a very interesting one. Bangladesh joined the ICC last year when it ratified the Statute of Rome. A case from Bangladesh can come to the ICC by referral from Government of Bangladesh, which might or might not happen, or by the ICC Prosecutor going on his own to the ICC Pre-Trial Chamber for authority to open a case.

Before opening a case, the ICC Prosecutor and judges would look to the processes going on for justice in Bangladesh. Bangladesh could also apply to stop the ICC investigation and prosecution by showing that there were genuine steps being taken at the national level for accountability.

Secondly, the ICC judges would only approve the opening of a case if they found that there were crimes under the statute. There can be international war crimes committed in a non-international armed conflict, but you have to have a situation where an armed group controls territory. It has to be civil war like we see in Libya today, Even if there is fighting and killing and bad things are happening, it may not be a war and the bad things would not be war crimes. But they could be crimes against humanity if there was a widespread or systematic attack against the civilian population based upon an organized plan, a government plan, a militia’s plan or any other plan, and individual crimes such as murder, rape, and mutilation were committed as part of the attack.

However, even if there are crimes against humanity under the statute, the judges will still have to determine if they are sufficiently grave to get to the ICC, which only handles very serious cases of international significance. If you look at the Kenya situation, you will see that the ICC Prosecutor got authority to open a crimes against humanity case, but only on a two-to-one vote of the judges. Now, in that case, there were 1,133 civilians murdered, some burned alive in churches, and events that went on over the course of two months. There were 300,000 people dislocated and thousands of properties destroyed. But nonetheless, it had to be found to be grave and it had to be organized violence, not riots or chaos, and one judge did not think the prosecutor had shown that it had crossed the line.

So, before the ICC can do anything, it has to be a fairly serious type of situation. Of course, now that Bangladesh is in the court, there is a possibility that the prosecutor could begin to look at this and could open up a preliminary examination. He could then watch the situation and determine whether had it reached the threshold and then move forward. Of course, the approach of the prosecutor and the ICC would always be to see whether the authorities in the country were doing anything themselves. The advantage of this is that may encourage action at the national level, where it may be more appropriate and effective in this kind of situation.

QUESTION: In the Philippines there is a new law, which was passed in 2009, which penalizes war crimes and crimes against humanity, so perpetrators could be persecuted and punished. The law uses some [standard] definition[s] of the ICC statute, so even before [its] the ratification in the Philippines, it would lead up to the eventual ratification of the statute. But there are no prosecutions as yet. What do you think of this law?

AMBASSADOR RAPP: Thank you very much for your question. I saw Senator Legarda today, the Chair of the Foreign Relations Committee in the Philippine Senate that will be considering the ICC statute, as a treaty for ratification. I indicated to her how pleased I was to see this legislation in effect even before the consideration of the treaty. There are 114 countries now in the ICC and I think that only about half of those have passed national legislation. I know that in Africa only five of the 31 countries in the ICC have enacted such a law.

It is extremely important for this law to be a workable, and for it to be possible to have national investigations and trials that are fair and expeditious. It is through laws like this, and their enforcement, that we can have justice for these crimes near to the victims and affected communities, with the ICC standing back and only becoming involved when there is no possibility of justice at the national level.

QUESTION: The CICC network in the Asian Region, especially those coming from ASEAN, agreed in a meeting here in Manila last month to act in solidarity with the people of Burma by supporting the call for a Commission on Inquiry. In general, I want to get your thoughts on how to get more countries to support the COI. In particular, how can the ASEAN people push this call in the face of the non-interference policy of ASEAN still being very much in place?

AMBASSADOR RAPP: It is now universally accepted that seeking compliance with international humanitarian law is not an interference with a country's internal affairs. A government cannot commit crimes against humanity or war crimes against its own people, even if no one ever crosses a border. Of course, we know in the case of Burma these acts have driven a million people into exile. It is clear that the provisions of the Rome Statute that define these crimes are universally recognized as customary international law, or the UN Security Council could not have acted unanimously, as it did in March, to open the door for Libyans to be prosecuted in the ICC for these crimes, when Libya has not ratified the ICC Statute.

Additionally, all of the nations of the world, acting in the UN General Assembly in 2005, accepted the “responsibility to protect” the people of every country from genocide, crimes against humanity, war crimes, and ethnic cleansing. But this responsibility rests first with the government of the country where the people are being harmed, and if protection is not provided, then the policy encourages regional and international actors to help make it happen. The Burmese groups are asking for help because they cannot do it alone. They are not asking for international courts or intervention; they are asking for our assistance in finding the truth so that they can push for their own approach to accountability.

As I said earlier, when citizens of Guinea or Cote d’Ivoire were not protected, it was ECOWAS and the African Union that took the lead. In the case of Libya, it was the Arab League that took the lead. These were situations with far fewer victims than there have been in Burma. It is appropriate that Asean countries take the lead, and for the people of these countries, acting within their own democratic processes, to encourage it.

QUESTION (From the response of Ms. Rosetta Rosales, Chair of the Commission on Human Rights): In past years it was the “unsigning” of the Rome Statute by the US that was often cited by Philippine government officials as the reason the Philippines has not ratified the treaty. What is the significance of the “unsigning” of the Rome Statute? And if the US is now supporting what the ICC is doing, why not just join the ICC?

AMBASSADOR RAPP: The declaration “unsigning” the Rome statute represented the policy of the Bush Administration of non-cooperation with the ICC in 2002. That policy began to change when the Bush administration allowed the referral by the UN Security Council of the Darfur situation to the ICC in 2005, and thereafter led the opposition to efforts to defer the ICC prosecution of Sudan President al-Bashir. The change of policy in the second term of President Bush was also seen by the end of its efforts to negotiate “non-surrender” agreements and its approval of legislation that removed the signing of such agreements as a condition of U.S. aid. It was also reflected by the statement of the State Department Legal Advisor that the United States respected the right of other countries to join the ICC. Of course, since President Obama came to office, the US has taken up the position as an observer in ICC bodies, a position to which we are entitled because we signed the final act at the Rome conference in 1998, and we have developed a policy of supportive engagement as I described in my speech.

So you ask, why do we not just go ahead and join the ICC? Well, the United States takes a very long time to decide whether to ratify international treaties and conventions. It took us 40 years to ratify the Genocide Convention. There are some very widely-accepted conventions that we have not yet ratified. I think that this is a reflection of our history. We cut ties with mother country more than 230 years ago and developed our legal system while separated from much the world by two broad oceans. I am reminded of a conversation that I had with Navi Pillay, the present UN High Commissioner for Human Rights. I know her well because she was the presiding judge of the “media trial” that I prosecuted at the Rwanda Tribunal and was later for six years a judge of the ICC. We were discussing the Convention on the Rights of the Child. I noted that the United States was one of only two countries that had not ratified this convention. She kindly commented that the US protects the rights of the child far better than many countries have that ratified.

The same can be said of the prosecution of war crimes. The United States has a well-developed system of military justice. The provisions of the ICC Statute and Elements of Crimes on war crimes were largely drafted by an American, Bill Lietzau, who came from a military justice career in the Marines and it now a senior civilian official in the Pentagon. If an American commits a war crime, we will act the same way as an ICC member does in fulfilling its obligations under complementarity. We will never give legitimate cause for an international prosecutor to take a case against an American, because we will have pursued the case ourselves.

But there remains concern that a future ICC Prosecutor might act unfairly to target Americans. We have three million men and women under arms protecting people from terror and atrocity. Let us say that you had a situation where a warlord had intentionally killed 20,000 civilians and the US became involved to protect people, and during that action a US bomb went astray and accidentally killed twenty civilians. Even if a U.S. investigation found appropriately that the action by the US officer was not a war crime, a politically-motivated prosecutor might attempt to open a case to show that he was “even-handed.” But it is important to note that this is not the kind of case that the present ICC Prosecutor has pursued. There is also language in the ICC Statute providing for the court to respect genuine national investigations, to admit only cases of sufficient gravity, and to give preference to cases of war crimes committed on a large scale or as part of a plan or policy. But it will take the development of case standards in actual practice by a succession of prosecutors and judges to relieve this concern. Meanwhile, our engagement policy allows us to get closer to the ICC and to work to resolve these issues.

Press Q&A

AMBASSADOR RAPP: As you know I was invited by Women of Ateneo de Manila University to address you today on international justice. One of my closest colleagues in international justice, Mayee Bringas-Warren, a graduate of Ateneo, suggested my coming here. It has been a great opportunity to share my experience and also the position of the U.S. Government on international justice.

So fire away!

QUESTION: Ambassador, earlier you mentioned that it would be nice, and Etta Rosales mentioned that it would be nice if you could put something in writing, is this something you are willing to do or planning?

AMBASSADOR RAPP: Well I certainly will make a copy of my remarks available, just to clarify on the public record that the United States does not object to any country joining the ICC. In particular, this is because in this administration, in the Obama Administration, we are working very closely with the ICC. We are offering support for each of its cases; they are cases that cry out for justice—cases of genocide, war crimes, and crimes against humanity where the innocent had been targeted by the thousands for rape, and murder and other horrible crimes, and where there is no possibility of justice at the national level. We are particularly supportive of the ICC principle of complementarity, which means you go to the national level first and try to have justice there and you only go to the international level when there is no national will or capacity.

I worked personally in international courts for Rwanda and for Sierra Leone; but those were temporary courts. In the future, when there are serious atrocities in the world there needs to be a court of last resort and the ICC is that court. Even while the US has not made the decision itself to join, we are content to see other countries join and we wanted to make that very clear here, while the Philippines considers whether to become a state party.

QUESTION: But you mentioned, Ambassador, that there is still that widespread misconception that the US is against the joining ICC. Are other countries joining the ICC?

AMBASSADOR RAPP: Certainly, the court officials say that attitude is out there. But if they see the speeches by American policy makers, beginning when Condoleezza Rice was the Secretary of State during the Bush Administration, it was made plain that the US does not object to countries joining. Since Barack Obama has been President and Hillary Clinton has been Secretary of State, we have now taken up our role as observers in the ICC and given a number of speeches on the public record where we made it very clear that we think that what the ICC is doing in each of its cases is very important, and that we want to partner with the ICC to ensure that it can bring justice to those situations where there is no possibility of justice elsewhere.

QUESTION: So, when do you think the ICC should step in when a problem arises in a particular country?

AMBASSADOR RAPP: Well, it’s the fundamental principle of the ICC that first you look to the national system. Here in the Philippines, for instance, last year, even before considering the treaty, you adopted a law to make it very plain that it is a crime under the law of the Philippines to commit genocide, war crimes, and crimes against humanity, and that those cases can be prosecuted at the national level. If those kinds of things arise, justice needs to be done here in national courts. It is only when there is no will or capacity that it goes to the ICC. Even then I think it is incumbent on all of us in the international community to help provide the capacity for the countries that do not have the technical expertise to prosecute these cases. Donors and those with experience with these cases should help. But, if there is no possibility, then the ICC should become involved. And the fact that it could become involved, I think is an incentive for justice to happen as close to home as possible.

QUESTION: Sir, do you recommend for countries to solve their problems before bringing them to ICC?

AMBASSADOR RAPP: Absolutely! I mean justice 10,000 kilometres away in The Hague is a long ways away from the Philippines and from anywhere else in Southeast Asia. It is important that the trials be close to the affected communities where people can see the trials of those that are accused; where they can see the witnesses, and where the affected communities will recognize if justice is achieved. That’s where you want to see it happen. It is only when it does not happen there that you need to go to the international level and that is the principle of the ICC.

QUESTION: Okay. Sir, [I’ll] go to a different topic. A lot of people are clamouring for Gaddafi to be tried for war crimes. What do you think of that?

AMBASSADOR RAPP: Well, the United States and every member of the Security Council, from the North, South, East and West, including China, on February 26, voted 15 to 0 to refer the situation in Libya to the ICC. There was clear evidence of massive crimes against humanity; of people being chased down, or threatened to be chased down, street to street, house to house, even into their closets, and killed without mercy or pity, and that is why it was referred to the ICC for investigation and decision. The Prosecutor reported to the Security Council last week, on the fourth of May, that he is now decided that there are strong cases against three individuals. He will go to the Pre-Trial Chamber of the International Criminal Court in the next few weeks and seek arrest warrants against those individuals.

This is now a judicial process. It is to be determined on the basis of the evidence and the law. But clearly, by our vote to refer this, we recognize that this is a process that could lead to charges against even the national leader. We are not going to decide, it is not for us, it is not a question of voting on who gets charged. It is a question on what the evidence is. But it is a process that we support.

QUESTION: When you mentioned about those individuals, are you talking about Gaddafi?

AMBASSADOR RAPP: The prosecutor decides. Obviously, in the past, he has prosecuted some very top-level people. I prosecuted Charles Taylor, the president of Liberia, in the Special Court for Sierra Leone. He can prosecute the national leader. He can prosecute security service leaders and others. It is up to him. He has to prove that a crime was committed. But he also has to be able to connect that crime to individuals, to show that individuals committed the crime or they ordered it, or they aided and abetted it, or they were part of a joint enterprise to commit it. To be able to do that, of course, is a question of evidence. And as he said, he will follow that evidence where it leads, even to the highest level. But, that is not a question for America, that is not a question for the Security Council, that is not a question for any country. It is a question for the prosecutor and then for the judges.

QUESTION: In the Philippines, we also have similar cases like EDSA I, II and III. What would be done about these kind of cases?

AMBASSADOR RAPP: Obviously, in the past you had a government that was anti-democratic, that exercised martial law, that targeted people for imprisonment and even in one famous case, for assassination. You took power in your own hands, through the ballot box, and saw to the end of that government. Each country I think has to decide how it is going to confront these questions themselves, in order to make sure that they do not happen again. Now, in this era of the ICC and when you have legislation like that adopted in the Philippines in 2009, if you have similar acts in the future, these could be the subject of prosecution in Manila or in The Hague.

QUESTION: I have one last question. Sir, you made a very clear distinction between happened in the case of Saddam Hussein and what happened in the case of Osama bin laden. Would you mind very quickly explaining the difference?

AMBASSADOR RAPP: Well, I meant that in the Saddam case, he was arrested after the end of the conflict; he surrendered, and was tried by Iraqi courts, that had passed special legislation reflecting international law. It was decided by the Iraqi people, they did not want an international court, and that they would do it themselves and seek international assistance. And the process went forward, not just on Saddam but on other leaders of his regime. Dozens of people have been tried by the Iraqi High Tribunal for crimes including genocide which was committed against the Kurdish people in Iraq.

In the case of Osama bin Laden, we are still in an armed conflict since September 11, 2001, when more than 3,000 people were murdered in cold blood including, more than a dozen Filipinos. It is appropriate during an armed conflict, just like the armed conflict we had with Japan in the 1940’s, that you can attack the enemy commanders and headquarters and it was an appropriate operation to target Osama bin Laden. Had he surrendered, then it would have been appropriate to have prosecuted him in our national system for the crimes that he committed. That did not happen and that is closure in his case. But it is a clear signal that when people commit these horrendous crimes there are going to be consequences; that the blood of the innocent is simply not going to be forgotten and that we will seek justice.

QUESTION: What is your assessment of the justice system in the Philippine in terms of caring or giving justice to those who are victims of atrocities?

AMBASSADOR RAPP: Well, I am very pleased to see the legislation that passed in 2009, that makes it a crime under Philippine law to commit genocide, war crimes, and crimes against humanity. There have not been cases yet under it but it is an excellent model. We are very supportive of the development of the rule of law and judicial institutions in this country. I think in all of our countries there are challenges; here, the judicial system is overworked and cases are often slow and justice is sometimes delayed longer than people want. In all of our efforts as a friend and a partner with this country, we want to work to help strengthen justice, certainly for these most serious crimes, but also for the crimes in which individual citizens fall victim. The rule of law has to be one of the highest priorities and the effectiveness of courts is the key part of it. All of us have a room for improvement and we are willing to work together as partners with the Philippine government and its justice and law enforcement officials to help improve the system here as well.

QUESTION: Sir, the Philippines has been identified as one of the top 20 countries with great abuses of children and women together with Bangladesh, Myanmar, Syria, and other countries. What steps could the country take to not just get us out of the list but as well improve the system?

AMBASSADOR RAPP: Well, as you know, it is very high priority of our country to deal with trafficking in persons and to protect people who are abused, people that end up becoming sex workers, or becoming exploited or almost slave labourers in some situations. It is a high priority of our government and we have an annual report in terms of how countries are doing. That is not in my particular area of jurisdiction, but it is a very important part of our government’s effort and we are working very closely with the Philippine Government, with Minister of Justice De Lima to try to strengthen the Philippine response to these crimes to move the country up on those lists in terms of successful protection of these victims.

QUESTION: What specific steps have to be taken?

AMBASSADOR RAPP: It is a question of having laws in place and enforcing those laws and effectively investigating each of these abuses, and putting judicial resources, police resources to work on them, and creating priorities for these trials—ensuring that the cases are brought to court, that they are given judicial time and attention, and that a clear signal is sent that people who commit the crime “will do the time.” Of course, with the judicial system that is overburdened and has many challenges in terms of criminal prosecution, it is always hard to say one thing or another deserves a priority. But it is our position to be sympathetic to these victims of human trafficking and to give these cases a priority. We are certainly working with the government to encourage that, and to provide assistance to see that it is done. We hope that when we make the required reports in the future that we will be able report on progress.

QUESTION: Sir, will the Maguindano massacre fall under crimes against humanity?

AMBASSADOR RAPP: This was an extremely serious crime; I want to be clear with that. There are 57 people murdered. But this is not a widespread or systematic attack of the kind we were talking about when we had groups attacked on a religious or ethnic basis. It takes a massive attack, systematic or widespread, to be a crime against humanity. It was a horrible crime, and justice cries out to for those victims and we are supportive of the efforts to expedite that trial and not to have it move so slowly. Justice delayed is justice is denied and I share the concerns that the people have in this country. It requires, I think, a unified commitment of not just the government alone, but of judges and members of the congress to work together to have the resources and the commitment of those resources so that a case like this can be processed in a way so that something like this never happens again.

QUESTION: Sir, one final question. Please answer in two sentences. What are the benefits the Philippines will have from being part of the UN Human Rights Council?

AMBASSADOR RAPP: Well, the Philippines will be able to exercise leadership in the Southeast Asian region to ensure where there are serious violations of human rights that the victims can expect the truth to be revealed and justice to be done. Okay?

Thank you.