Three Challenges for the Human Rights Movement: Darfur, Abu Ghraib, and the Role of the United Nations

February 3, 2005

Introduction

JOANNE MYERS: Good morning. I'm Joanne Myers, and I'd like to thank you for joining us for this Worldview Breakfast program. Our speaker today is Ken Roth, and he will be discussing challenges for the human rights movement.

Since the time of the ancient Greek Stoics, appeals have been made for what today would be described as universal human rights. In fact, for centuries, debates about the very concept of rights, their source and justification, have existed not only among Western political philosophers but also among Christians, Buddhists, and Muslims, all of whom share many common assumptions about the nature of man and of society.

Yet, it was only with the adoption of the Universal Declaration of Human Rights in 1948 that a revolution in international law was launched. Even so, such ideas played almost no role in international politics until the end of the Cold War. This transforming event raised hopes that human rights would quickly come to be more widely respected, and for a short time they were—that is, until the horrors of the Rwanda genocide came to our attention and the ethnic cleansing of the Balkans became so well-publicized.

Despite its failures, the idea of universal human rights has become so intuitively ingrained in our political lexicon that there is now near-universal consensus that all individuals are entitled to certain basic rights. These include certain civil liberties and political rights, the most fundamental of which are the right to life and physical safety. To violate these most basic human rights is to deny individuals their fundamental moral entitlement. It is, in a sense, to treat them as if they were less than human and undeserving of respect and dignity. Examples of such acts are typically deemed crimes against humanity, including genocide and torture.

It is with this supposition in mind that our speaker today will be discussing some of the more pressing challenges to the human rights movement: Darfur, Abu Ghraib, and the role the UN can play in addressing these issues.

As human rights are being daily put to the test, there is no one better qualified to discuss this topic than our guest this morning. Few individuals in this field have earned the worldwide recognition and respect that Ken Roth has. He has been the Executive Director of Human Rights Watch since 1993. Under his leadership, the organization has nearly tripled in size while greatly expanding its geographic reach. He has also added special projects, such as those devoted to refugees, children's rights, and to academic freedom.

Before joining this largest U.S.-based international human rights organization, our speaker was a federal prosecutor for the U.S. Attorney's Office for the Southern District of New York. He also worked on the Iran contra investigation in Washington. He has written extensively on a range of human rights topics, which have appeared in publications such as The New York Times, The Washington Post, Foreign Affairs, The National, and The New York Review of Books. You may have heard him speak before, as he has appeared on major media outlets, such as CNN, PBS, the BBC, and NPR.

For the Carnegie Council it has always been an especially exceptional morning when Ken has been our guest, and I believe today will be no exception. Please join me in giving a very warm welcome to Ken Roth.

Remarks

KENNETH ROTH: Thank you very much. I will talk about three very different kinds of challenges that the human rights movement faces today. First, I would like to discuss Darfur, which represents the challenge of whether the international community can respond adequately to the worst kind of atrocities.

Second, I'll talk about Abu Ghraib, as a symbol more broadly of U.S. interrogation practice—I don't pretend that the U.S. is the worst offender in the world, but today it is probably the most influential offender—and particularly the issue of what to do when the superpower quite openly flouts some of the most basic human rights norms.

Then finally, I'll address the role of the United Nations, and some of the proposals from the High-level Panel both on the role that the Security Council can play in promoting human rights and also the difficult issue of what to do with the mess in Geneva with the UN Human Rights Commission.

Darfur is a terrible situation of massive ethnic cleansing. I was in a refugee camp of 70,000 people, which just a year ago had been a dusty plain. All of these people had been roused from their villages. The Janjaweed, often backed by the Sudanese military or the air force, would engage in a few demonstration killings sufficient to send everyone else running for their lives. Today they are cowering in refugee camps with the Janjaweed circling outside, women frequently raped as they leave looking for firewood or food, men fearful to leave for fear that they'll be taken as members of the rebels and summarily shot.

Just recently, we had reports of still more bombings, more killings. The international community has been slow to respond. It took the Security Council many months even to draft a Chapter VII Resolution devoted directly or exclusively to Darfur.

Because of China's veto threat, sanctions have been out of the question, and so we've had to focus on a two-part response: the deployment of peacekeepers, and the threat of prosecution.

Peacekeepers are clearly an important part of the equation. Unfortunately, peacekeeping has been delegated to the African Union [AU], and although we are happy to see the AU playing an important role in Darfur, it alone cannot be a sufficient part of the solution.

The AU is a brand-new institution, and, as such, logistically challenged. It is having a very difficult time deploying even the 3,300 troops that have been authorized so far. Even 3,300 is too few. If you travel around Darfur and see the vast distances that have to be traveled, and the virtual lack of infrastructure, this is a tough area to police. We will clearly need to supplement the AU in some significant way.

Khartoum has been resistant to UN involvement in the west, although they are clearly contemplating their involvement in the south. One option may be to fudge the geographic mandate of the peacekeepers to be deployed in the south to allow them to play a significant role in the west as well.

We are also facing problems of manpower. The United States and Britain are clearly preoccupied in Iraq, NATO has been preoccupied in Afghanistan, France has its hands full between the C?te d'Ivoire and eastern Congo, and Canada seems to be pulling back these days in its peacekeeping commitments.

There is a need to find a UN force capable of playing a supplemental role to the AU. We cannot pretend that the AU is handling the problem, and the persistent killing suggests that our strategy has been inadequate.

The other element of an effective response in Darfur is, and should be, the threat of justice. The Security Council did what it typically does in a situation of mass atrocities: it establishes a commission of inquiry as a prelude to actual prosecution, to examine the scope of the crime and the appropriate mechanism for bringing people to justice.

The Cassese Commission reported back and has found that, while unable to say that genocide is taking place, certainly crimes against humanity worthy of prosecution have been committed.

How do we move forward? The U.S. government is in a bind. It has been very good in calling the world's attention to the plight of the people of Darfur and in pushing for an end to the killing, and for this I give the Bush Administration a good degree of credit. It has been a more forceful proponent for ending the killing there than any other country.

At the same time, the Bush Administration has an ideological aversion to the International Criminal Court [ICC] which is the preferred mechanism, according to the Cassese Commission, for bringing to justice the killers in Khartoum. The United States is proposing as an alternative the creation of an adjunct to the Rwandan Tribunal, its theory being that at least you've got a building there, although the last time I heard that building is busy right now with Rwandan trials. The thinking is, "Maybe we can save some building time and cost." But clearly you still need to write the rules, find the prosecutors and judges, and create an institution from scratch, which will take time, and time we do not have.

When I was in Khartoum in October 2004, I was very struck by how fearful senior government leaders are of the ICC. This is an extremely sophisticated group of people, Western educated, many contacts with the West. They are not eager to spend their dying days in the Sudanese dessert dodging arrest warrants. They are very worried about their personal future and their liberty and they see The Hague as a genuine threat.

For that reason, if the ICC were brought into the picture, it would have a deterrent effect and would immediately begin to save lives. We need to make justice a realistic factor in Khartoum's calculations. The ICC can only have jurisdiction over Sudan through the actions of the Security Council because Sudan has not ratified the ICC Treaty.

Is this politically possible? Of the Security Council members, nine have ratified the ICC Treaty, four others have signed. The two who have done neither—if you count the unsigning as "let's pretend it never happened at all,"—are the United States and China.

China has clearly been causing problems with respect to sanctions, but there is reason to believe that they will go along with an ICC referral. I point to two bits of evidence.

One is that, because of the Naivasha Accords in southern Sudan, China is suddenly facing a situation where the Southern Peoples Liberation Army (SPLA) will control a significant part of its oil concessions in southern Sudan. Oil has always been a major part of China's calculation in Darfur. Suddenly, because the SPLA cares about the people of Darfur, much more than the leaders in Khartoum, China's calculation about how obstructionist it can be changes.

We also know that China has been quietly supportive of the ICC. In May and June 2004, when the annual question came up as to whether to exempt UN peacekeepers from the ICC's jurisdiction, China opposed the exemption. It seems to believe that the ICC does not represent a threat to Beijing, because it calculates that its worst crimes are behind it, and because the ICC does not have retroactive jurisdiction, China does not have as much to fear from the ICC as one might think if you look at its historical human rights record.

What does Washington do? I have been encouraged by the State Department's caution in addressing this issue. It has never threatened a veto. It has never said, "The door is closed on the ICC." It has been very careful to say, "We have a historical opposition to the ICC, we don't like this, we'd like to explore all the options."

I don't blame them for saying that much. They clearly are being very careful not to back themselves into a corner. If you look at Boucher's statements coming from the State Department, or even the statement out of the Mission in New York, they are signaling that compromise is possible.

If you also look at a number of the intellectual legal defenders of the Administration, the traditional legal opponents of the ICC, they too are beginning to call for compromise. Jack Goldsmith, Harvard law professor, former head of the Office of Legal Counsel in the Justice Department, one of the traditional bright legal lights for the Bush Administration and a firm opponent of the ICC, had an op-ed in The Washington Post recently saying that this is a place where we have to compromise. Lee Casey [partner in the Washington, D.C., office of Baker & Hostetler LLP who served in the Justice Department during the Reagan and Bush Sr. administrations] has been quoted similarly in the press.

Why is that? The U.S. government didn't object to international justice in principle; it objected to the idea of an independent prosecutor looking around the world, and it feared politicized prosecutions that would jeopardize American troops or officials.

That is not at stake here. The U.S. government has always favored an ICC whose agenda or docket would be set by the Security Council. And since the only way that the ICC can get involved in Darfur is via the Security Council, it is very possible for Washington to say, "Abstaining from, or even supporting, an ICC referral for Darfur does not compromise our fundamental objection to the Court." They can say, "We still vigorously oppose the idea of an independent prosecutor, but we have always accepted that Security Council referral is the way for the ICC to proceed."

If you combine that principled distinction with the Bush Administration's concern for the people of Darfur, a compromise is possible. If Britain comes out accepting the Rwanda compromise, that is what we will get. If Britain says, "We will stick with the ICC because this is the best solution for the people of Darfur and there is no good reason to undermine it," Washington will go along.

Moving on to Washington's interrogation policies, what I find particularly troubling about Abu Ghraib is that there has been no serious effort by the Bush Administration to get to the policy decisions that led almost inevitably to the abuses of Abu Ghraib, at Bagram and other facilities in Afghanistan, at Guantánamo, at undisclosed detention facilities around the world. The Administration has tried to pretend that Abu Ghraib was just a few bad apples at the bottom of the barrel, an aberration that in no sense reflected policy.

But if you look at what has happened over the last three years, it is quite clear that a series of policy decisions taken at the most senior levels of the Bush Administration are the reason why we have seen so many instances of abusive interrogation. Let me highlight a few that were absolutely essential in creating an environment where soldiers and interrogators were led to believe that abuse was appropriate.

1) The decision not to apply the Geneva Conventions to many of the detainees at Guantánamo, and indeed to deny prisoner- of-war status to the Taliban detainees, was widely understood as signaling that the Army Interrogation Manual—a document that draws quite appropriate lines between tough interrogation and coercion—had been jettisoned. Many of the interrogators did not know what rules they were following. Suddenly they were in a void.

The Bush Administration could have said, "Don't worry about the Geneva Conventions. We are still bound by the Convention against Torture and other cruel, inhuman, or degrading treatment." But they never even talked about that for a good two years, until we pushed Condi Rice to make a statement about the continued applicability of the Convention against Torture. The two key legal sources insisting on human treatment of detainees were either not mentioned or were deemed largely inapplicable.


2) The Administration then proceeded to "disappear" some number of prisoners, and we have no idea how many. We have eleven names, but that is just the tip of the iceberg. When people disappear, when they are not accessible to the Red Cross or to anybody else, that is a situation in which they are extremely vulnerable to torture.


3) We know that the Bush Administration decided not to prosecute people who had been responsible for what the U.S. Medical Examiner called "homicides." There were two Afghans killed in U.S. custody in December of 2002, and despite that, the Bush Administration took two years before they even began to take these cases seriously. Indeed, the unit that had been responsible for some of the worst abuses in Afghanistan was shifted off to Abu Ghraib rather than being prosecuted.


4) Rumsfeld then explicitly authorized a number of techniques that clearly are prohibited by the rule against cruel, inhuman, and degrading treatment: putting people in painful stress positions, hooding them for long periods of time, stripping them naked, using attack dogs to scare them. These techniques are designed to humiliate, degrade, or inflict extreme pain. The signal was sent that these kinds of abuses were acceptable, despite international legal prohibitions. And then, in the words of the Schlesinger Report, these techniques began to migrate throughout the system. Although they were approved for Guantánamo, they quickly found their way to Abu Ghraib and elsewhere.


5) We now know that the Bush Administration also adopted some fairly radical legal theories—the definition of torture being nothing short of the kind of pain associated with the failure of a bodily organ or death, a definition that it took them two years to repudiate. The repudiation came just days before Gonzales was to have his confirmation hearings.


6) The same memorandum containing the torture definition asserted the radical proposition that the President has "Commander in Chief authority" to order torture, again signaling that these fundamental prohibitions can be broken. That assertion to this day has not been repudiated. What the Bush Administration says is, "The President has a policy against torture, so it's a moot question." Implicitly they are saying, "Yes, we believe the President still has this Commander in Chief authority."


If you accept that a leader of a country can flout the most basic human rights norms with impunity, why don't we give the key to the jailhouse door to Saddam Hussein or Slobodan Milosevic? After all, ethnic cleansing, genocide, torture: "It's all roughly the same thing, they're all commanders in chief, let them go." This is a radical theory that could not possibly be accepted by the international community but has not been repudiated by the Bush Administration.

The most recent development occurred when Gonzalez was providing written responses to various questions from the senators during his confirmation proceedings. He was asked about the U.S. government's understanding of the prohibition of cruel, inhuman, or degrading treatment.

This has always been a contention in the United States, because in the early-1990s when the Senate approved ratification of the Convention against Torture, the issue came up: what does "degrading treatment" mean? Does it mean having a bad breakfast? Does it mean being kept up past your bedtime? The fear was that an international court would come up with a trivial ruling on this and the United States would be bound.

The Senate said, "We will define 'cruel, inhuman, or degrading' treatment to mean the same thing as the 'cruel and unusual punishment' clause in the U.S. Constitution." If you can't do it at the police station down the street here in New York, you can't do it in Abu Ghraib.

Gonzalez said that when the Senate introduced that modification, equating cruel, inhuman, or degrading treatment with cruel and unusual punishment, they were referring not only to the substantive definition of cruel, inhuman, or degrading treatment, but also to the geographic scope of the U.S. Constitution; and because the U.S. Constitution only applies in the continental United States or to Americans overseas, the United States is thus free to engage in cruel, inhuman, or degrading treatment so long as it is against non-Americans overseas.

This is not an off-the-cuff remark of somebody who didn't get the law. This was a considered judgment put in writing and delivered to the Senate.

It is no surprise that in those circumstances one finds Abu Ghraib replicated over and over in U.S. detention facilities around the world. This presents us with an enormous challenge, because this is one of the most fundamental prohibitions of international law, and we have the U.S. government overtly saying, "We are not bound by it; if it is not an American involved, forget it." Our challenge is to find a way to indicate that this is not acceptable.

So far all that the Bush Administration has done in terms of its own accountability is to launch a flurry of self-investigations. But there has been no one who has even had jurisdiction to look at the role of the White House, nor the jurisdiction to look at the role of the CIA, other than the CIA's own Inspector General. Only one investigation, the Schlesinger Commission, had the authority to look at the role of senior Pentagon officials—and this is Schlesinger who at the press conference releasing the report said, "It would be a gift to the terrorists if Rumsfeld resigned." One has reason to question the independence of that commission. In other words, nobody has seriously looked at the role of these policy-level decisions in creating an environment that leads to Abu Ghraib-like situations.

That is why Human Rights Watch has called first for a 9/11-style commission, a genuinely bipartisan, independent commission that will look at the full scope of the problem. More important at this stage, we have called for the appointment of a special prosecutor, somebody who is charged with being independent of the Attorney General, who is one of the architects of U.S. interrogation practices. It is unlikely that Gonzalez can supervise a vigorous independent criminal investigation into his own conduct and that of his immediate colleagues. Certainly crimes as serious as torture and inhumane treatment warrant the appointment of a special prosecutor.

Finally, let me talk about the recommendations of the UN High-level Panel.

Overall their report was very thoughtful, and this is a wonderful opportunity to improve the UN's response on a number of fronts, and certainly in the area of human rights. I am a strong believer in the United Nations; we constantly look to the UN as a forum to address some of the most serious human rights problems around the world, so I have a great interest in seeing this reform process succeed. I will highlight parts of the Panel's report that were very good, and others that still need some work.

First, one small line that I would highlight, which could transform the Security Council's capacity to live up to its responsibility to protect, is the reference to the use of the veto, particularly the recommendation that no Permanent Member use the veto in situations of genocide or comparable mass atrocities. That is an extremely important recommendation.

For that to happen, the British and the French will have to take the lead. I do not see the Russians, the Americans, or the Chinese pushing this, and it will have to be a Permanent Member. Creating a tradition that in situations of mass atrocities the veto is not exercised would be an enormous improvement in the capacity of the Security Council to respond to the worst abuses.

The definition of terrorism was encouraging, in that it made clear that even in situations of wars against national liberation, wars against occupation, there is never a justification to engage in terrorism, and deliberate attacks on civilians are wrong regardless of the context.

One point on which I differ with what the panel did is that it exempted states from the definition of terrorism. The rationale it provided was that since we have international humanitarian law which governs states in times of armed conflict, we do not need to get into calling what states do terrorism; we can reserve that label for nongovernmental groups.

The problem with that thinking is that terrorism does not always occur in the context of wars; it is quite possible to have terrorism in times of peace. Upon reflection, I hope that the UN will recognize that anyone can commit an act of terrorism, and being a state should not exempt one from that label.

On the UN Human Rights Commission, the panel's diagnosis was right on target. The Commission has become a victim of its own success. There was a time twenty years ago when the Commission didn't criticize anybody, and so it was not threatening to anybody, and was thus easy to ignore. But it has emerged as a very significant force. Because governments around the world want to do everything possible to avoid condemnation by the Commission, the thugs of the world have flocked to the Commission as a way of protecting themselves. Virtually half of the fifty-three members are governments that have no intention of upholding the purposes of the Commission; indeed, they are doing everything they can to undermine the body.

This has created a problem for the functioning of the Commission. It is very difficult to get countries that are entirely deserving of condemnation to even be mentioned in a Resolution, let alone condemned.

It has also become a problem for the UN. When the UN-bashers start reciting their litany of abuses by the UN, you hear right at the top that Libya was chair of the UN Human Rights Commission, Sudan is on the Commission. These are appropriate criticisms. This is not the UN's fault; it's the governments that elect the members of the Commission. But that said, most people do not make that distinction between the UN as the Secretariat and the UN as a conference hall for governments to meet in. So the activities of the Commission are hurting the reputation of the UN overall, and therefore this is a critical area of reform.

The High-level Panel toyed with the idea of introducing membership criteria for the Commission. Human Rights Watch has been pushing this very strongly. We recognize that getting formal criteria will probably be difficult, but we have been pushing the idea of asking candidates to the Commission to pledge in a variety of areas their commitment to human rights standards.

These pledges can include, for example, issuing a standing invitation to UN investigators; ratifying the major human rights treaties; vowing to complete one's reporting under the Treaty; adopting a human rights action plan along the lines recommended by the World Conference on Human Rights in 1993; vowing not to support "no action motions," these gag orders that the Commission adopts to prevent discussion even of human rights problems in China or elsewhere. There are a number of pledges that one could ask of candidates to raise the level of behavior within the Commission.

The Panel, though, chose not to pursue that path. It recommended that instead of solving the membership problem, we turn the Commission into a second General Assembly with universal membership. Having looked at how the General Assembly acted the last time around on human rights issues, where it adopted "no action motions," meaning it refused to even discuss human rights in Zimbabwe, Sudan, or Belarus, I do not have a lot of confidence in the General Assembly solution to the Commission's problems.

We urge the Panel and the UN to revisit the idea of finding an informal way to set membership criteria, to begin adopting a code of conduct, to use the terminology adopted by Sergio Vieira De Mello, so that we can build expectations about how governments should behave on the Commission. We will not get to hard and fast rules any time soon, but if we adopt informal norms, the shaming process can be every effective in changing governmental behavior.

The other idea floated by the High-level Panel was the creation of a Human Rights Council. The Panel is a little confusing. Sometimes they seem to be talking about almost another subcommission of experts, almost a subordinate body to the Commission, which is not what we need. But most of the time they seem to be talking about a fairly senior group within the UN, akin to the Security Council or ECOSOC, which would be a fairly small body, fifteen-to-twenty-five members.

One big advantage is that it would meet year-round, rather than only in March and April. If your genocide happens to be in August, sorry, your timing is off. While there is the possibility of holding special sessions of the Commission, it is very difficult with fifty-three members.

So we are interested in exploring the idea of a Human Rights Council. We are worried that this not be taken as an excuse to remove human rights from the agenda of the Security Council. If you look at the evolution of the last ten years, human rights are now routine issues before the Security Council. They were anathema a decade ago. So this has been a very important evolution and I would not want to backtrack, but nonetheless I see the virtue of creating a high-level permanent Council with much greater flexibility than the Commission has, and with tougher membership criteria.

Finally, with respect to the UN High Commissioner for Human Rights, the report appropriately urges a much closer relationship for her with the Security Council, regular briefings, staffing the Council on human rights-related issues.

On the other hand, it introduces what is a bad idea of a global report on human rights issues that she would be compelled to issue once a year. The best way to bury one's comments on a country is to publish it along with comments on 190 other countries. It would not be a good use of what still remain quite scarce resources.

There are many good ideas in the High-level Panel Report, some not-so-great ones, but there clearly is much there to work with, and we have now a wonderful opportunity to address and to improve on the UN's performance in the human rights area.

JOANNE MYERS: Thank you. I would like to open the floor to questions.

Questions and Answers

QUESTION: You discussed why the High-level Report would not talk about state terrorism; is this not simply the recognition that it is a member state organization?

You also mentioned the High Commissioner for Human Rights, which is very weak, both for the reasons you cited, but also for its geographic location. In Geneva it is "out of sight, out of mind." Would you favor moving the office to New York?

KEN ROTH: You are absolutely right in both respects. Much of the reluctance to talk about state terrorism is because this is a club of states. But, to be fair, there is a concept of state terrorism and we should not just merge it with violations of international humanitarian law. So we are moving toward the possibility of reaching global agreement on the definition of terrorism. The biggest obstacle has been this concept of justified terrorism because it is a war of national liberation. We are moving past that, and I am hopeful that we can get some agreement there.

The High Commissioner was quite deliberately exiled to Geneva. So was the Human Rights Commission. It is becoming less of an exile as global communications become easier. But the High Commissioner should have a significant presence here in New York, a much higher level presence than she has had to date, in order to facilitate regular briefings with the Security Council without her having to spend her time over the Atlantic. I would favor moving it to New York, although it is not immediately in the cards. A more significant presence here would be a step in the right direction.

QUESTION: I want to tackle Darfur. I do not doubt your assessment that the situation is bad and has probably deteriorated in the past few months. But you did not give enough credit for what the international community in aggregate, including the UN, has done, so that compared to our expectations of twelve months ago, the outcome was much better than we might have feared. But that is not to be complacent and it is not to say that the situation is good, because 70,000 deaths and the situation you described is far too many.

How do you achieve the agreement? Getting a subject like this on the agenda took several months. That is a problem that the Panel is addressing: how do we get issues like Darfur, Sudan, addressed and acted upon against the interests of that country, and perhaps its neighbors?

We [the United Kingdom] have done it through resolutions on Sudan. It is very easy to say, "Why don't you bring British troops and some others in there?" It is not just that we are very heavily committed in about twelve international theaters at the moment, but that it is 1,200 miles away from any staging point, making an operation unfeasible.

To mobilize the African Union was a sizable achievement. We funded all of their vehicles, and have tried to deliver relief. But we must also deal with a government where the simplistic answer of sanctions would probably have lost us any cooperation with the government, whereas at the same time we were trying to end a thirty-five-year-old civil war, which cost 2 million lives in Sudan. The challenge for policymakers is to produce the least-bad outcome.

You inaccurately stated that the U.K. is blocking agreement in Brussels. Second, you said that the United States is ready to compromise. Yet their lobbying around the world at the moment on this issue is not the language of compromise at all.

And you say that the United Kingdom holds the key. I am not sure we do hold the key. The U.K. view is that the natural fit to end impunity is to send this issue to the ICC.

We will try to do that, but to do it we have to get the Security Council together, and that means agreement. I do not have any interest at the moment in provoking in the next weeks a trans-Atlantic disagreement on this at a fairly crucial stage. I do have a key interest in stopping what is happening in Sudan and then tackling impunity and bringing people to justice.

So my simple request is that you bear in mind the factors that we have to deal with. I respect the work that your organization does because the pressure you put on all of us is tremendous and very helpful. But trying to deliver a Resolution is not quite so simple.

KEN ROTH: First, I do not want to diminish the role that the Security Council has played so far. It has saved lives. On the ground in Darfur, much of the ethnic cleansing is done, but it is not yet completed. There are still people to be cleansed and still many displaced people to be protected.

The AU people on the ground are conscientious and professional. It is a weak institution. Until just recently in Addis, they did not even want logistical help. But there are also questions of pride here.

Everybody agrees more would be better. I completely understand the commitments of Britain and others elsewhere. But what we are trying to get is as many feet on the ground as possible, AU or UN. If we can deploy 10,000 peacekeepers in the south, that will have an enormous carryover effect, and if that can happen in any reasonable time, that would be good.

On Naivasha, everybody was worried about upsetting the peace in the south. Because the Naivasha process has no role for justice—there is complete impunity for the atrocities committed by both sides in the south—that has made it easier for Khartoum to pick up with the atrocities in the west.

The peace may have been more difficult to achieve in the south, and the price paid may have been lives in the west. This is a complexity we must deal with. But the impunity enjoyed did have some negative effects.

I agree that Britain is very clear that your position is to favor the ICC. Pierre Prosper [US Ambassador-at-Large for War Crimes Issues], for example, is pushing for the Rwanda approach. We can see in Boucher's statements, that they are being very careful not to rule out the ICC option. That is an opening that we should seize. They can maintain their principled opposition to the ICC and not have a problem here.

But what Pierre is worrying about now is legitimizing the ICC. He feels that even if you use the Security Council approach, which has not been the route traditionally opposed by the United States, nonetheless you legitimize the ICC. That is an intangible concern, but not a big enough concern to stop the deterrent potential of the ICC to save lives in Darfur. There is room for a compromise that leads to The Hague, but to get there would be facilitated by a strong, firm response by all of the traditional supporters of the ICC.

QUESTION: We strongly favor a referral, but we also think that issues of cooperation and financing have to be addressed, because if the situation is referred to the ICC and there is no cooperation forthcoming on the ground, you will see the Court in an extremely difficult position.

I do not agree that this will not cost the UN anything, because if it is referred by the Security Council to the ICC, part of the cost would have to be borne by the UN. These are very important considerations.

We do not want to see the Court in a situation where it has an extremely difficult time trying to get the job done, and then some people say, "We always told you so; that is why we abstained."

And very quickly on the Commission, country resolutions are overrated, which does not mean that they are not important. But if you measure the success of the Commission only by the yardstick of country resolutions that were rejected or adopted, then you forget about much of the important work that the UN does in the human rights area. Much of the dynamic work is extremely effective, and often more effective than the work done on country resolutions.

And as far as "no action motions" go, last fall was a somewhat disturbing experience, but we should not forget that that happens in Geneva as well. We have not had a resolution on China, we have not had a resolution on Chechnya or on Zimbabwe, so the problem is a little deeper than that, and in the end a country resolution is always driven by a political decision, and the Commission on Human Rights is a political intergovernmental body.

KEN ROTH: Prosecution will cost money wherever you do it. I would not make primarily an economic argument for the ICC or the Rwanda option. The main issue is time. Moreno Ocampo [Chief Prosecutor of the ICC] has made it clear that he has room for one more prosecution. He is working on eastern Congo and northern Uganda. He has staff in place now for a Darfur prosecution. You save time, and that is the key here.

Gaining Khartoum's cooperation will be difficult regardless, and this was one of the Cassese Commission's real concerns. We gave them some of the evidence that we have, including some internal documents, but Khartoum will not cooperate in its own prosecution, no matter which mechanism you use.

If we can find insider witnesses, that will be an option. There may be intercepts. There are certain public speeches that were made. The President of Sudan gave a very important speech leading to the creation of the Janjaweed. We have enough to create a command responsibility case for at least some senior individuals in Khartoum.

On the question of country resolutions, let me make a broad distinction. Technical assistance has an important role to play in countries that have a demonstrated political will to respect human rights but lack the capacity or the know-how. In those situations condemnation is not needed. You are just providing a service.

On the other hand, some countries have no intention of upholding human rights; they do not have the political will. Human rights violations are serving their interests, and in those situations technical assistance becomes a fig leaf for continuing abuse. That is where you need the stigma of a country resolution.

A group of governments in Geneva are pushing to get rid of the agenda items that lead to country resolutions altogether, and that is a real threat. Chechnya was condemned twice, in 2000 and 2001, and Russia fought tooth and nail to avoid that. That was a major step forward, the first time a Permanent Member of the Security Council had ever been condemned by the Commission. It helped mitigate some of the abuses in Chechnya. That today we are facing what at the latest estimate was 1,600 disappearances annually is, in part, a product of the lack of international condemnation since 9/11. There is still a role for condemnation and the pressure that that brings to bear in appropriate situations.

QUESTION: My question goes back to the Security Council issue. You did not mention Russia or other African members. Given that Russia has been a major seller of arms to Sudan, and that it has itself concerns about its human rights record, would you comment on the likelihood of Russia also being, like China, a threat to veto?

KEN ROTH: Russia has been opposed to broad-based trade sanctions for precisely the reason you note. The kinds of sanctions that we have advocated are much more targeted sanctions, like restricting travel or freezing bank accounts. Given the nature of the leadership in Khartoum, these would make a difference.

But our understanding is that Russia will not oppose the Security Council referral to the ICC. They have signed but not ratified the ICC Treaty.

QUESTION: You are quite wrong when you say that the Human Rights Commission is a victim of its own success. There is an immense problem with the whole structure in the Commission, which could bring down the reputation of the UN more generally, by feeding into the critical instincts of those who do not like the organization.

Why do you focus on the Panel's recommendations, rather than coming to us with a blank sheet of paper with specific institutional proposals? If you are opposed to universalization of the CHR [Commission on Human Rights], then tell us what will work. If you think that a council is potentially useful but you're not quite sure about it, set out a plan which those of us who want to defend the organization can present to other member states with the prospect of getting consensus agreement on some ideas. Why doesn't Human Rights Watch come up with some better proposals?

KEN ROTH: We do not just criticize, we do come forward with proposals. We have recently written a very detailed letter to Kofi Annan making suggestions for how his report on the report should be written. I am happy to share them with you.

But we are trying to fix the Commission. I agree with your assessment of the Commission, it is a disaster, and it is hurting the UN as a whole. The idea of membership criteria or a code of conduct is something we have been pushing for three years now. We believe in the UN and think it has huge potential which we would like to help it realize.

JOANNE MYERS:
Thank you for being with us today.

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