Conversation with Stephen Rapp

Host Derek MacCuish:  My guest today in the Pathways to Peace series of interviews is Stephen Rapp, who is widely respected for his decades of work for justice and accountability in areas of conflict and war crimes.

In 2001, he joined the International Criminal Tribunal for Rwanda as part of the effort to prosecute those responsible for the genocide of 1994, and he headed the trial team that achieved the first convictions in history for those in the media who incited genocide. He directed the prosecution of former Liberian President Charles Taylor and others responsible for crimes during more than ten years of extreme violence in the Sierra Leone Civil War. As U.S. Ambassador-at-Large for war crimes issues, his office achieved the first convictions in history for sexual slavery and forced marriage as crimes against humanity, and for attacks on peacekeepers and the use of child soldiers as violations of international humanitarian law.

He has been engaged in efforts for justice and accountability in dozens of countries, most recently in Syria where, he said, the worst atrocities of the 21st century were committed. I started our discussion by asking him about how a condition of peace might be achieved in a place where people have suffered from extreme violence. 

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Transcript

Stephen Rapp interview transcript (uncorrected)

Intro:   Hello, and welcome to this episode of Human Rights Magazine. My name is Derek MacCuish. My guest today in the Pathways to Peace series of interviews is Stephen Rapp, who is widely respected for his decades of work for justice and accountability in areas of conflict and war crimes.

In 2001, he joined the International Criminal Tribunal for Rwanda as part of the effort to prosecute those responsible for the genocide of 1994, and he headed the trial team that achieved the first convictions in history for those in the media who incited genocide. He directed the prosecution of former Liberian President Charles Taylor and others responsible for crimes during more than ten years of extreme violence in the Sierra Leone Civil War. As U.S. Ambassador-at-Large for war crimes issues, his office achieved the first convictions in history for sexual slavery and forced marriage as crimes against humanity, and for attacks on peacekeepers and the use of child soldiers as violations of international humanitarian law.

He has been engaged in efforts for justice and accountability in dozens of countries, most recently in Syria where, he said, the worst atrocities of the 21st century were committed. I started our discussion by asking him about how a condition of peace might be achieved in a place where people have suffered from extreme violence. 

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Derek MacCuish:  I thought that we could talk a bit about how a nation or a community can move to a condition of peace, peace being the theme of this series, especially following extreme violence, which is generally your area, how there can be systems of justice and accountability and prevention of atrocity and genocide.

And what does that require in a community or in a nation to move to a condition of peaceful coexistence after such difficulty? But I thought I'd also ask you if there were particular things that you wanted to talk about. 

Stephen Rapp:   You know, I'll talk about my own experience in different situations, which of course included prosecuting at the Rwanda Tribunal and at the Sierra Leone Special Court, and what I thought were the results of that. And then of course, all of the situations that I've engaged in as Ambassador-at-Large, probably 25 at least post-conflict situations or ongoing conflict situations where I was involved in injustice and sometimes involved in the resolution of conflict, like in Colombia, for instance, and trying to develop transitional justice methods that wouldn't violate international law, for instance.

 I mean, obviously you will quite often have perpetrators who say, give us the South African model. We like that. We don't have to go to jail.

You know, we'll confess that one-tenth of what we did, all will be forgiven. And technically, under international law, that's not permitted anymore. An amnesty that gives you a complete walk for service violations of human rights is not effective.

We had one in Sierra Leone, and we basically said it didn't apply. And in Argentina, they passed a full stop law after the trial of the junta, the three juntas. But then their Supreme Court started down 15 years later and said, no, you can't prosecute those kinds of crimes.

So you have those issues that to some extent limit the flexibility of the system, even though, of course, in the peace process, the way dictators say, well, of course, I'm not going to agree to go to jail, for God's sakes. Get out of here. You know, I've got to have a deal.

Hey, I'm going to keep killing people. So how do you deal with these things? Well, Congress will say, well, this is challenging. But what happens to society if you don't deal with it? You just get more crimes.

People do it again. So anyway, that's what you want to talk about. I'm glad you talked about it.

One of the things that I'm curious about, this also relates back to the violence that you became so closely connected to in terms of the accountability and restoration of the country, where in Rwanda and Sierra Leone, the people that were part of the violence as in Syria. I mean, we have in Syria, you know, the big trenches that were dug for the bodies, the walls that were put up to surround the mass grave sites, the people who, you know, were in the military. I mean, it reminds me of Hannah Arendt's discussion of the banality of evil, that much evil is done by ordinary people who may not be acting out of an ideology or a hatred, but they're sort of going about it as a business.

And I can't get my head around that. And I'm not sure what it means in terms of restoration of normality in places like Rwanda and Sierra Leone, and what might hopefully look forward to in Syria. And I don't know if it's something that really you can comment on.

Sure, I'm glad to talk about it. It's, you know, it is like that. I mean, I tend to, this is why I'm, you know, a more selective prosecution sort of individual, even though you may get different views from victims.

 Many people, like the Nobel Prize winner, Osama Bin Laden, said, we need to prosecute all the Russian war criminals, not pick and choose. But, you know, most of us who are involved in this think that there are authors of these crimes and people who really benefited from them and who decided to target people on an ethnic or religious basis for their political ends. And those are the people that should truly be prosecuted.

 And those that are more conscripted in the process should be dealt with in other ways, arguably. You know, other ways to rehabilitate themselves, et cetera, to own up to their crimes and ask for forgiveness, et cetera, and go about their lives. And we obviously know in the context of Syria, we don't want, we don't want the devaluation, for instance, that they had in Iraq, where the state becomes, and we've done it to a point in Syria, but not quite to the extent in Iraq, where there, you know, there's nobody there, you know, to maintain law and order, so to speak, and nobody there to drive, you know, monitor the traffic, et cetera.

 You can go after ordinary criminals, et cetera. You know, those states, these exist, and then a variety of groups rise up, and we're in conflict, and there's nobody to really control it. So, you know, these are balancing, always, that need to be done, and, you know, in the most transparent way possible, in which there's the kind of maximum buy-in of the society in terms of how they want to resolve it.

 Every situation is different, and in most situations, there's no failure, and, you know, the recurrence of conflict, impunity, you know, and how to do this right is something that people debate. Confronting it is not one of the ways to solve it. You have to confront it.

 You mentioned that, you know, at times, different people, different groups rise up, and things get, I don't remember quite how you put it, but you said that groups rise up, and there's no one that controls it and gets out of hand. How do you prevent things from getting out of hand? 

 Right. I mean, the thing that we're, of course, the most concerned about after a Syria or after any kind of civil conflict, particularly one that's been fought on sectarian or ethnic or sometimes even political grounds, is that people tend to view the other as the enemy, as all guilty, and they will seek private vengeance, maybe from the individual perpetrator, maybe from his family, maybe from his group.

 And if you continue that kind of thing, sort of an eye-for-an-eye kind of approach, and you're saying everybody's blind, you know, you can't, your point of the judicial system, you know, maybe kind of utilitarian, is, of course, to put a stop on vigilantes, and to the extent that you have a justice process where people are able to participate and see something done, that will reduce the impetus for, you know, private vengeance. And I just can imagine living in a society where maybe one of our own children is killed and there's no police, you'd want to go get the killer. But if there's police ready and there's a trial, you don't do that.

 And so that's what you want to avoid to the extent. I mean, we can see in Syria, but this isn't certainly a full explanation of it, that the killings that occurred on the coast, maybe 1,500 people, you know, were to some extent out-of-control elements. That's, of course, what the government says, the current government, the interim government.

 But then there are also sort of, you know, you had an area in which every Sunni Muslim, like my house, was murdered. And so they're settling the scores. So people from around the area are settling the scores against the Alawite communities from which the killers came.

 And so, and if there had been a process of justice initiated in which the organizers of those killings were being prosecuted, you might not have had the same measure of anger and hostility and desire for vengeance. So it is important to begin those processes in order to stay ahead of vengeance, at least, you know, Al-Shara and Syria. So we can't have accusations of private vengeance on that.

 They issued a report in the last day about, you know, not completely clear on who's responsible or talking about a special court to prosecute those who committed crimes against Alawites. But, you know, I'm sure the victims of the massive crimes committed by the Assad government, by Alawites and by their allies, you know, and not Alawites committed the crimes. When Assad was an Alawite, you know, that, you know, the victims are going to say, where's justice for us? You can't rid everyone after this.

 People, you know, were angry because justice hadn't happened. So, you know, they need to deal with both. And they seem to be making some progress on it.

 As difficult as it is in a country that's got a reconstruction and maybe $900 billion to reconstruct from the war and is under sanctions. And, you know, when you go through Syria, people, you know, you buy gasoline out of milk bottles, you know, but it's getting many milk bottles as you get across town. You know, it's just being sold on the other side of the street and adulterated fuels and things like that.

 So, you know, real problems with just almost anything that's happening. And, you know, you've got to come up with a justice process and police and proof and judges and all of that. And, you know, can we wait a little while for that? Nope.

 We can't wait. We can't wait. We will continue to have this thing in private ventures.

In terms of prevention, I mean, the International Criminal Court, do you think there's enough of a sense of deterrence that if I do these terrible things that one day they're going to come and get me that I will have to be, you know, hauled away to the Hague and put on trial? Do you think that this comes up in the thinking of people who are engaged at the higher levels of atrocity? 

 Well, not as much as it should, but in part because the court's relatively ineffective. It's got a lot of fugitive people at its charge that haven't been answered the warrants, so to speak. And there are certain situations like Russia, which, you know, governments of which have never, leaders of which have never been held to account for anything, the crimes of Stalin, the crimes of KGB, which Putin comes out of, you know, no accountability for that where there were accountability for the crimes of the Nazis, for instance.

 And so that, you know, leads to an expectation of impunity and to get in a way where a Russian soldier was just convicted in a Finnish court, Finland court, that, you know, for crimes committed, and he happened to be in Finland, so they actually have him collared and prosecuted, and he got a life sentence. So occasionally some people get held to account. But, you know, if the risk is so low that you're going to get prosecuted, then it may be relatively meaningless.

 It does have a greater impact, you know, for cases in Kenya, which were, in fact, they were prosecutions against the post-election, the most allegedly responsible for the post-election violence in 2007, 2008, you know, in which about 1,200 people were killed, 600,000 displaced, cases in the ICC failed, they allowed the defendants to appear without being jailed. But, you know, the next elections, there haven't been any violence. It's, I mean, who wants to go spend all that money on an attorney to fight this thing, et cetera, you know? So, you know, there are impacts.

 You see it in some other countries where leaders, you know, rather than, you know, they've got riots in the street, they're seeking a umpteenth term, and they finally decide, well, I could shoot people down in the street and you end up in The Hague, or I could take my money and leave, and they take their money and leave. There is some impact, but obviously it depends to a large extent on the power of the regime, and then, of course, it depends on the effectiveness of the international court. It's nothing like we have in the domestic system where mostly domestic systems in developed countries where there's this sense that there is a fairly decent chance that the police will catch you and you will be prosecuted and convicted.

 The chance of that happening at the international level is fractional comparatively because normally there's not even a court of jurisdiction. If you're, you know, not in the ICC, China and Russia will protect you in detail. You know, if you do anything that the UN might do to send it to the ICC or create a court, you know, you're going to get out of the jail free car, and so it's a possibility that you might get arrested in some other country that might proceed with a case under universal jurisdiction if you're willing not to travel and not to worry.

 So, you know, it is spotty, but the risk is created and that can affect people at the front end. However, once they've gotten into the business of committing all sorts of horrible crimes, the natural result at that point is to try to kill your way out of it and not to surrender to justice because they're guilty already, you know, so it's got to be kind of front end that you've got that kind of impact. But, you know, it's not just the deterrence that you get.

 I mean, you get norms kind of established. I mean, in Sierra Leone we, you know, had a court that could only prosecute those who were most responsible. We invited 13 and arrested 10, including President Nixonville or President Taylor and convicted all of them, and the court went out of business.

 And in following elections in that country in which there was a couple of elections that were very close, in which the opposition wanted to file no lethal violence. People said, well, special court if you're violent special court was out of business. You know, sort of like, you know, this court you know, if you try to gain your whole power by violence you're going to get in trouble.

 And so, you know, it becomes something you just don't do. And as a result, in that situation, the Sierra Leone court actually prosecuted, we prosecuted those sides, we prosecuted the nasty rebels and supported Taylor in the case of the leaders of the militia that fought on our government's side and restored our democracy but committed atrocities. And so it wasn't even if you're fighting on the right side, you're going to get a jail-free cut.

 No, no. If you're fighting on the right side, maybe violence against civilians is intentional. But you're going to get you know, you're going to get prosecuted too.

 And that kind of approach to the extent of management I think does have a real effect on the country, even one that's very poor which the regular justice system is not very effective because they can't afford it. 

I'm going to change direction quite a bit here now. In another interview I did for this series, I spoke with William Shabas who you're of course familiar with his work and he talked about a desire for a formal recognition of a right to peace.

 I'm unsure what a right to peace would mean and I don't know if you have any thoughts on the concept of formalizing a right to peace. 

Well, I mean, it is I mean the most the most legal aspect of it is when it comes to the crime of aggression is the right to live without, you know free or unprovoked attacks from another state etc. When you're a victimized in such a case even if you're victimized as a soldier who's conscripted to go to the front and you're shot at the front that's not a war crime.

 You can shoot the soldiers on the other side more such things as privileged combat as long as you're shooting a military target generally it's not a war crime. Indiscriminate, right, things like that it's a hard thing to deal with but, you know, there's no there's no crime but as in the case of Russia it's a hostile invasion of Ukraine they invade Ukraine and, you know, hundreds of thousands of young men are pulled away from school and they're drawn to the front and maybe a hundred thousand can get killed you know, children a single parent maybe and all the horrible loss your rights have been violated and my friend my staff of the DACA established by the Clooney Foundation have gone to the Human Rights Committee not the Human Rights Policy but the Human Rights Committee that deals with rights created under the Universal Declaration of Human Rights, specifically the civil and political rights and sought a ruling that people who are essentially their rights to life their right to physical integrity their right to those rights are taken from them because of an aggressive war they've had their rights their human rights violated so there is that right to peace now on the other hand if you're a Russian soldier or a Korean soldier that's conscripted to go fight in Putin's war then you're not a victim of the crime aggression and then you know then you get to the question is it a war crime you know, kill you or have you surrendered for instance so it is it does create like in the crime of aggression this sort of issue of who started it which sometimes can be controversial because sometimes the party who started it has been insufficient provocation such that they're justified so it gets mixed up in that aggression kind of issue but that's the one way international law can recognize this sort of right to peace. 

Are there other aspects of this that you want to talk about or have on the front of your mind?

  I mean fundamentally you know the approach that I think a society has to take even in a peace negotiation is to recognize the goals of transitional justice and there are of course the vision of transitional justice four pillars truth, prosecutions reparations and guarantees of non-recurrence and transitional justice needs to include all components but for my mind if you're involved in that process and you say we can't get to 2, 3 and 4 right now we'll have to think about that it's too difficult but then it leads to there has to be a truth process, there has to be a process established which does bring forward the truth of what occurred in the conflict in the Syrian context for instance 130,000 people are missing and their families are entitled to information about what happened to them that could be from the records of the detention facilities in which they were tortured could be from a much longer process of digging the mass graves matching DNA from relatives but they're entitled to that and frankly from my mind that almost always leads to the demand as we have in the Truth Commission in Gambia to prosecute those who are seriously responsible but to develop a more limited prosecution approach which goes after you sort of offer a sort of crime that seeks not to essentially criminalize everybody who was on one side and another and then of course you deal with the fact that the victims are fundamentally interested in survivors and reparations loss of the breadwinner and how they're going to support themselves the destruction of the property etc and of course it's rare that people can get reparations but there has to be some program there and maybe even modest school fees and medical treatment a variety of things like that but fundamentally it's all about trying to develop approaches to ensure that it doesn't happen again my concern with things like amnesties is that it will tend to invite it to happen again because parties just say I don't like the deal I'm not the big shot that I was because I'm going to line up a bunch of militia people and call ourselves the Coalition for Defense of Democracy or something and move around and start killing the other side and maybe I'll get power but if I don't get power I lose again I get an amnesty so there has to be a sense that at least the people who have really been the authors of these crimes need to face the consequences or it will happen again and there won't be peace it will be a false peace and it's not what people want, not what they deserve.

When I've spoken with people who have become intimately engaged in dynamics of mass atrocity and genocide like you and actually one of my early interviews was several years ago with Ben Ferencz who as a young man was a big part of the Nuremberg trials following the Second World War and the establishment of the International Criminal Court and I'm always kind of pleasantly astonished at how congenial and relaxed people who are engaged in issues of such atrocities are. When Mr. Ferencz spoke to me, he said he was on the deck of his home in Florida where he had retired and we had a very informal discussion. I don't see or very rarely see anger and stress and anxiety or post-traumatic symptoms in our conversations, with people for the podcast. People won't see it, but you smile quite readily and so I'm always astonished at this, that people like you can continue this good work that you do with an amicable outlook still on the world.

Yes, I mean, that's not to say that it's one that engages in it. This man was adding up the million people in a vending machine at the Foreign Ministry, at Mellon-Strausse, and he's adding up the numbers that had been filled by the ISIS group, and back to a million was the right to his boss, and said, we need to prosecute these guys. You know, they're saying they killed, you know, so many women, so many men, so many children, and on this day, in this trench, etc., that, you know, he wasn't powerfully affected by that, as we all are, and we face this, but the, I mean, the aspect that makes it, makes it a little, for me, is, you know, you're finding a route for justice, the truth to be told, for it not to be recurred.

 You engage with the victims and survivors, and explain what you're doing, and they have so little hope when they hear that you can do this, and this, and this, you know, and they believe you, and then you follow through. It's enormously satisfying, to be frank, and so I do find that, you know, I'm energized by engagement with people that have been through these experiences, and by then finding a way forward for justice, and so it is, I mean, obviously, you're, one never succeeded with every, every wall he went into, and then the way against him, he didn't succeed. Now, then I can see Tom being intensely depressed, and certainly there have been times when, when I think I had commitments, and then they're broken, you know, anger, but fundamentally, it's a way forward, and offers some promise, and like all of us, you know, even people who lose children, the environments will say, well, I want my child to be remembered, he needs to remember, if something is created that means some other child, this won't happen to them, and you say, okay, I can do that, so that's not what made me as a parent feel, feel good.

 So anyway, as I said, if you're doing something that you honestly feel, and have some evidence for that feeling can do some good, or, you know, you can take that suffering by a process of justice, relieve some of it, and prevent similar things from happening, I think is something that's quite satisfying, makes you positive, it's fine, even after all of the others that you've seen.