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	Participants Countries and organizations Conference documentation Conference programme				Report from Plenary Session 2 Introduction by Ms. Elisabeth Rehn Presentation by Mr. Philippe Kirsch Presentation by Dr. Irwin Cotler Report from Plenary Session 2 Report Plenary: The Role of the International Community Moderator: Ms Elisabeth Rehn Panel: HE Mr Philippe Kirsch, Ambassador of Canada to Stockholm and Chairman of the International Criminal Court Preparatory Commission (ICC Prep Com) Professor Alexander Boraine, President of the International Center for Transitional Justice and former deputy chairman of South Africa’s Truth and Reconciliation Commission Professor Irwin Cotler, Member of Parliament, Canada Mr Payam Akhavan, PhD, Debevoise & Plimpton, New York Elisabeth Rehn set the background for the discussion by referring to the fact that the ratio of military/civilian casualties had changed from 90/10 in traditional wars to 10/90 in the contemporary world. She further mentioned the importance of the women’s perspective in the International Criminal Court (ICC) and Truth and Reconciliation Commissions (TRCs). Appointing women as ICC judges would be an important decision by the international community towards this end. Women are particularly victimised during and after armed conflicts, but they also often take responsibility for the future. Lastly, Ms Rehn mentioned the possibility of a global TRC, suggested by former Finnish President Martti Ahtisaari, which could deal with issues such as slavery, global debts, etc. Ambassador Kirsch made a presentation of the ICC. The Rome Statute, which will enter into force on 1 July 2002, became possible after the Cold War and was partly a response to new conflicts and new crimes. The human and economic costs of impunity have been very high. Therefore, there has been a drive for a transition from a culture of impunity to a culture of accountability. That is not only a moral but also a practical imperative. Ambassador Kirsch emphasised the importance of the two ad hoc tribunals, the International Criminal Tribunals (ICTs), for the former Yugoslavia and Rwanda whose jurisprudence has provided a model for the ICC. There are, however, weaknesses in the ad hoc model: 1) they are set up after the fact, 2) they are costly and time-consuming, and 3) they depend on the willingness of the Security Council. The ICC will have jurisdiction over the crimes of genocide, crimes against humanity, war crimes and, after the adoption of a definition, of aggression. The Rome Statute did not create any new crimes, but it did make some major advances such as establishing that war crimes apply also in internal armed conflicts. Some crimes, such as rape and sexual slavery, were also clarified and codified. The Rome Statute involves the victims to a great degree, in terms of both participation and assistance. The ICC will be a fair, independent institution with adequate safeguards. Ambassador Kirsch challenged the critics of the Court to point out exactly what it is in the Statute that is problematic. As distinct from the ICTs, the ICC will be a court of last resort. According to the principle of complementarity, the Court will only have jurisdiction when states are not willing or able. In fact, the ideal scenario is that the ICC will never have to hear a single case, because they will be dealt with under national jurisdiction. Many states have now reviewed their legislation on international crimes. The fact that the Rome Statute entered into force at such an early stage shows that there is a genuine global desire to end impunity, and that the Statute is understood as a serious, non-political court. There can be no peace without justice, and no peace without reconciliation. The ICC will increase accountability, and as such be complementary to a truth and reconciliation commission. Professor Boraine focused on the question of whether retributive and restorative justice is complementary or contradictory. As many countries in recent years have wrestled with the question of how to deal with their pasts, one statement that has guided many is that “to remember is the secret of redemption”. But we also need to forget, and Professor Boraine suggested that we can only forget by remembering – not in terms of amnesia, but as a conscious act of remembering which can free a country and its individuals and allow them to move forward. The question is then how we should deal with the past in a way that creates the possibility not only of accountability, but also the possibility of peace. An important interdisciplinary study known as “transitional justice” has emerged. One model that has been used to respond to what Carlos Nino has termed “radical evil” has been the ICTs for Yugoslavia and Rwanda. When he first arrived in Bosnia to discuss the possibility of a TRC, there was strong popular opinion in Bosnia in favour of such a body, particularly since the Hague seemed so far away. Senior officials representing the Hague were opposed to a mechanism which would compete with the ICT. However, after months of discussion, the president of the ICT acknowledged that there was a need for other mechanisms which were complementary to the ICT because: 1) it was impossible for the ICT to try all the perpetrators in the conflict, 2) the ICT could not hear the thousands of victims who deserved to be heard, 3) the ICT was not able to analyse the historical, political, sociological and economic causes of the war crimes, and 4) the ICT did not have the capacity to focus on collective memory. Professor Boraine shares the president’s conclusion that mechanisms complementary to an ICT are necessary in order to arrive at reconciliation and peace. If we accept that restorative justice and retributive justice are not contradictory but complementary, we can be more open to new possibilities and a more inclusive approach to these major problems. Professor Cotler spoke about the tremendous development of international human rights and humanitarian law which have evolved more in the last 5 years than in the previous 55 years. After giving us some snapshots of the revolution of human rights, Professor Cotler stated that we must ask ourselves two questions: “What have we learned?” and “What can we do?”. Pointing at the legal paradox of massive violations of human rights on the one hand, and the international criminal justice regime to combat it on the other, he then summarised the lessons to be learnt and the actions to be taken in the field of human rights. Lesson 1: The danger of state-sponsored incitement to hatred and international crime – the teaching of contempt and the demonising of others – international requirement for the criminalisation of hate speech Nazism almost succeeded because of the ideology of hate and the teaching of the demonising of others. “The Holocaust did not begin in gas chambers. It began with words”. Fifty years later this has been repeated in places like Burundi, Bosnia and Rwanda. What is needed, both as fidelity to human rights and for reconciliation, is to put an end to hate speech and to have a culture of respect in place of a culture of contempt. Lesson 2: Crimes of indifference, conspiracies of silence – the duty to act The killing fields of the past succeeded also because of crimes of indifference, of “conspiracies of silence”. The ultimate horror of Rwanda is that this genocide was in fact preventable and that it was the indifference, the silence of the international community, that made it possible. It is our responsibility to break down the walls of indifference and silence. Lesson 3: Promoting human security, protecting against massive atrocities, towards a culture of prevention The best form of peace-building and reconciliation is to prevent violent conflict. Not only does the international community spend eight times more money in the aftermath of conflict than on prevention, the human costs of such conflict are incalculable. Lesson 4: The duty to intervene If the duty to prevent does not succeed then the right – even the duty – to intervene may become imperative in order to avoid human catastrophe. This doctrine must trump the principle of state sovereignty. Professor Cotler referred to the Commission on Intervention and State Sovereignty regarding criteria for humanitarian intervention. Lesson 5: The ICC as a cornerstone of international humanitarian and criminal law Lesson 6: The responsibility of national states as part of a building a system of international justice – the principle of complementarity The international criminal system will come into effect only when national justice systems are shown to be unwilling or unable to prosecute in cases of human rights violations. Lesson 7: The deliberate exploitation, maiming and murder of children The most chilling testimony of this conference concerned Rwanda where nearly all girls had been the victim of sexual violence. Not only had Rwandan children witnessed members of their own families being murdered, not only had they witnessed other children being murdered, they had also witnessed the murder of children by other children. Professor Cotler concluded by quoting his daughter: “Daddy, if you want to know what the real test of human rights is, always ask yourself, in any situation, at any time, in any part of the world: is it good for the children? That’s the real test of human rights, Daddy.” Dr Akhavan situated the question of intervention in a broader context and asked some basic questions, such as “What is civilisation? What is the connection between self and other? How can we transcend our own immediate interests, and be concerned about atrocities in other parts of the world?” While the 20th century experienced a process of unprecedented violence and destruction, it also witnessed the increasing interdependence of nations and the rise of progressive international norms and institutions, including the International Criminal Court. The struggle for justice must be viewed in the context of this twin process, one leading to the disintegration of divisive ideologies and the other to the rise of a global ethic. Dr Akhavan examined international criminal justice in light of the traditional rationales for criminal justice: 1) Retribution means that certain breaches of moral norms deserve vindication. This idea is based on the assumption of moral choice. Does it make sense in Rwanda, Bosnia, in a culture saturated by fear and hatred, for crimes committed under duress? 2) Deterrence is the idea that punishment can prevent the recurrence of further crime. That assumes that the criminal is a rational calculator. Do people make rational choices in situations of mass crime? 3) Incapacitation of perpetrators. How can you lock up all the guilty in Rwanda when there are hundreds of thousands of perpetrators? Despite these limitations, international criminal justice makes significant contributions . The ICTs and other instances have had far-reaching effects on the rules of legitimacy of international relations. Further, international criminal justice can alter the cost-benefit analysis, in particular for the political elite. Evidence seems to show that systematic state-sponsored violence is the result of years of preparation. In Rwanda, a country of limited resources, the killing occurred at five times the rate of the gas chambers of Germany and required extensive planning. Nevertheless, criminal justice is not a panacea without broader international engagement. Whether or not it will mean genuine progress depends not so much on the functioning of these institutions as on the context in which they will be working. Dr Akhavan concluded by recalling the words of the 13th century Persian poet Saadi : “All people are the limbs of one body”, remarking that the suffering of one part can be disregarded only at the price of the whole body’s welfare. .” In an intervention, Professor Beverly Allen spoke about the gender aspect of peace and reconciliation. When we talk about political and ethnic conflict we often forget that they hide gender animosities, and all the institutions we invent function in a context that often fails to recognise that gender issues are everywhere and always with us. As the testimonies of the Conference have shown, war exaggerates gender disparities and gives us the picture of men fighting and women crying. To an extent this picture is false, but we need to, and can, change whatever in this picture is true. Professor Allen continued to give examples of how individuals and organisations could work towards gender justice, such as providing for the specific needs of women in post-conflict situations, guaranteeing conditions for women to earn their livelihood, creating a climate of security for women to give evidence in tribunals, courts, and truth and reconciliation commissions. Professor Allen asserted that we are all in this work together and concluded by suggesting to Prime Minister Göran Persson that he should take a bold new step in the next Stockholm International Forum by choosing “Women in Today’s World” as the theme. Discussions Mr Jean de Dieu Mucyo, Minister of Justice of Rwanda, asked about the need to protect witnesses at the International Criminal Tribunal for Rwanda, not only in Arusha but also afterwards. He further referred to the need to give HIV/AIDS medicine to the victims of rape, and not only to the accused in Arusha. Dr Akhavan agreed that greater efforts have to be made to protect witnesses, but that is very difficult in the context of Rwanda. With regard to medicine, the answer does not lie with the ICT but within the framework of assistance to Rwanda. Professor Cotler remarked that the international community should indemnify Rwanda. The country’s debt of USD 1million was assumed by the preceding government in its preparation of the genocide. Fergus Kerrigan, the Danish Center for Human Rights, asked about the duty to intervene, and whether it could be sanctioned. Professor Cotler replied that the legal possibilities of responsibility for non-intervention should be explored. He added that there are now identifiable criteria for when the international community should intervene, such as in the report from the Commission on Intervention and State Sovereignty. Professor Erwin Staub remarked that the road from criteria to action is long. Kosovo was an “accident” caused by the shame felt by states for their inaction in Bosnia and in Rwanda. Professor Cotler added that there should be an early warning system to monitor hate speech and systemic discrimination. Professor Benedek stated that there is no peace without human rights. Reconciliation must be based on human rights. Ambassador Kirsch responded that all of these activities are premised on human rights, which are an essential component of peace and security (as is democracy). We should not, however, confuse monitoring of human rights with the ICC. The ICC has become a reality because it deals only with the most serious crimes. Ms Chea Vannath, Cambodia, remarked that the little people must empower themselves. If there is no enforcement by the people, there will be a gap between legislation (ICC, etc.) and the people. Professor Boraine referred to the South African TRC in which there were consultations aimed at empowering people to own the process. As radio can be used to incite hatred, so can it also be used to inform. Professor Cotler added that we must hear testimony from witnesses on how to proceed, and we need to invoke civil society. The ICC was created in large as a consequence of actions by NGOs. Ms Berit Reisel, Norway, mentioned the need for a panel of men to deal with the causes of rape. A member of the delegation from Bosnia and Herzegovina mentioned the processes leading to the Ottawa Convention banning anti-personnel landmines and the establishment of the ICC as examples of new diplomacy involving civil society. Mr Youk Chhang, Cambodia, asked if there was an equally strong need for a TRC in a country where atrocities are dealt with in a local court. Professor Boraine thought a TRC would enhance the impact even of local courts. Ambassador Kirsch concluded that what has happened with regard to accountability could not even have been imagined ten years ago. 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