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Payam Akhavan - International Human Rights Lawyer

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Supertext captions by Red Bee Media - www.redbeemedia.com.au. You seem

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to bring a personal sense of mission to your work. Where does

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that come from? Is it your experience? Well, my family belong

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to the community in Iran, which has been traditionally the scapegoat,

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faced violent persecution for many years. I would say that the

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execution of my uncle in the summer of 198 1, when I was still a child,

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solely because of his religious beliefs, left a deep impression on

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me. Those intimate encounters with suffering clearly opened my mind to

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the search for justice. And the worst thing is, the feeling of

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helplessness as a victim. When you are in exile and a loved one has

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just been tortured to death and you have the sense that there is no way

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that you can achieve any form of justice. And that is the beginning

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of a journey very often, you begin to understand that justice is a

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much more profound long-term struggle. So in a sense, you are

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pursuing some of your own personal demons through these

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internationally courts? I think those experiences make us

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understand in a profound are way why justice is important. We can't

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reduce human rights, what really motivates us to achieve justice

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against overwhelm odds is the sense of indignation and I believe that

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once I experienced this in my own personal life, it opened me to

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understanding how somebody in Rwandan or wherever else may feel

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if somebody that they love has been taken away from them, through

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violence. You helped set up called the Iran tribunal which sat in The

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Hague in October 2012 to hear allegations of crimes after the

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Islamic revolution. But it had no legal standing, had it? It wasn't

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set up any properly constituted authority? This can be described as

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a truth commission. Mothers who lost their children, who have an

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organisation of a notorious mass grave, came to me and said that

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aurp former United Nations prosecutor, can you do justice for

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us. It was a very humbling moment because I told them that there is

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no court to bring their case to. We decided to set up our own court,

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which has all of the trappings as a properly constituted court, a panel

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of prominent judges, including the head of the former South African

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Constitutional Court and to begin the political transformation in

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Iran by exposing the historical truth. Did it have any affect in

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Iran itself? I would say that the affect was remarkable. We broadcast

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the testimony of the victims through satellite TV, through the

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internet. As you know, they are glued to satellite TV and internet.

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We estimate that 20 million people in Iran realised that in that first

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decade of the revolution thousands of people were executed simply

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because of their beliefs. It forced the regime to admit that these

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crimes had occurred. There is a propaganda piece which suggested

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that the supreme leader had tried to save as many political prisoners

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as he could. Now they have to try and position him as a human rights

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champion, which shows that once human rights and accountbility

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becomes one of the public discourse, leaders no matter how powerful

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become answerable. It wasn't a properly constituted process. You

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are open to the charge that the witnesses selected themselves

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because there is a clear nexus here between the political im--

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imperative. That's something that's dogged the internationally courts.

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That intermisaling, that grey area between what's duishal? In this

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case, there was no formal legal standing but it had legitimacy.

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Times when we are talking of the historical truth and shaping public

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opinion, is more important than a legal formal sort of status. There

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is always a delicate balance between law and politics. At the

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end of the day, the legal process is about ascertaining the truth

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through objective evidence, corroboration, it is a much Moore

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focused and rigorous bay of understanding phenomenon than let's

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say a discussion of history or politics or what have you. -- way.

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The tribunal was criticised, it was said some victims were excluded.

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They want to know who funded T it was a lie hi political thing. You

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muddyed the waters between what's judicial and what's political?

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there were 100 witnesses in a tribunal set up by the victims

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themselves and funded by them, which is a remarkable

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accomplishment of survivors and victims becoming activists and

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putting together a truth commission which I think is unprecedented.

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When you have thousands of victims, by some estimates, the number of

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executions are as high as 40,000 to 50,000 according to some professors.

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So you aren't nextly going to be selective in terms of only being I

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believe to represent a slice of the truth. This wasn't a tribunal that

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promised justice? It depends on what you mean by justice. It isn't

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just putting a defendant in the dock. When what was said by the

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Nuremberg judgement. How can you ever bring anybody to just nis for

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the crimes of that scale. By exposing the truth, giving the

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victims a voice, that in itself is the first step towards achieving

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justice. When you are dealing with mass crimes, I think transforming

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public values, exposing people to the truth, it's sometimes more

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important than putting this or that person in prison. Are the Western

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democracies right to pursue sanctions against Iran because of

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the nuclear programme? Will it simply strengthen the regime?

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have said that it's a mistake to focus exclusively on the nuclear

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issue. The problem in Iran is not potential nuclear capability, it's

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the nature of the regime. It's the regime that makes the potential of

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nuclear capability a threat. So until Iran is a democracy, until

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there is the rule of law and respect for human rights, Iran will

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continue to be a threat to Western interests and of course Western

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2356789 are not interested in what's best for the people, they

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are looking at their own interests. Let's look at the example of the

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dictatorships that pursue nuclear programs which they gave up under

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civilian rule. Let's look at South Africa under apartheid. A regime

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without democracy will by nature become military. Can the West

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afford to wait in reIran? I'm not sure what choice there is. The

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choices seem to be a military confrontation, which is an

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appalling choice, given what we have seen in the Middle East and

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the other choice is striking a bargain with Iran. And I think that

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the middle path has to be the empowerment of a civil society and

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conditioning inter internal acceptance. Policy makers see it as

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a soft issue for a group of naive activists. I think human rights is

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solution to the problem of Iran in the Middle East. Civil society is

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very strong in Iran, not as strong as the regime? Certainly, civil

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society has been many years in the making of Iran. Iran has the most

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vigorous and secular civil society in the Middle East. And we saw in

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2009 at least a year before the so called Arab Spring that the first

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place in which civil society really succeeded at least in shaking the

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pill alreadys of power was in Iran. And I can tell you that for many

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years when we were talking of civil society, decisions makers were

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mocking us in Washington and saying it's impossible to have the velvet

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revolutions witnessed in Islamic Middle East, because people just

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have to understand the complexities of an entire region that's going

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through historical transition from transition to democracy, that

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transition is going to be a complex, it's going to be messy in places.

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But I believe that Iran is the furtherest advanced in the Middle

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East. And just beneath the surface of this regime is a youthful

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generation which is post ideological and Iran has the

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transformation of the entire region. Dz the new President represent

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change? Well, there is some hope that the regime, for its own

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survival has to bring about certain reforms. I remain sceptical. One of

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the members of the cabinet, proposed members who was a member

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of the death commission in the 1980s executed thousands of people.

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That I don't think is sending the right message to the

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internationally commune to the people of Iran. But the point is

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that Iran cannot be ruled indefinitely through terror and

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torture and indimtation. At some point the regime will have to

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accommodate the demands of people for greater openness and

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accountability. Let me ask you about how you started in this human

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rights business. You joined the prosecutors office as a very young

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man. Why did it have such a big impact on you? From a personal

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point of view, once again, I think it goes back to the childhood

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experiences that open you to understanding human suffering and

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injustice. And in Bosnia, during the first week of my employment in

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the United Nations, I was deployed in the village of Mahudge, in which

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several hundreds of women and children had been brutally

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massacreed. That was a rather rude awakianing as my career as a

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internationally lawyer. It was a very intimate encounter with what

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human rights mean. And it was a very long time ago. 20 years ago,

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and those tries are taking place. The justice delayed is justice

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denied. Why is it all taking so long? Well, what's interesting, we

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had the Nuremberg model, which is an army which sits victorious and

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the allied powers could simply march down the streets of Berlin.

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That wasn't the case in the former uckshraufa. It was a situation in

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which there was a tribunal set up together with appeasement of those

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responsibility for ethnic cleansing. It was meant to promote

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reconciliation. It has done the opposite. All sides in the war have

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carefully selected the paths of the evidence that they want to believe,

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consistent with their own adopted narrative. It's had the opposite

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affect. It has further entrenched decision, hasn't it? Justice isn't

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necessarily about reconciliation. Reconciliation is an incidental

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biproduct of criminal justice. But we also have to realise that even

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in postwar Germany, it took at least one or two generations before

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the lessons of Nuremberg I think it is a mistake to think we are going

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to see that justice by prosecuting people from also is. That is what we

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were promised. Has it failed? would say we have to imagine what

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the world will look like if Slobodan Milosevic was still in power. If

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they were not held accountable and was still in positions of power.

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Although there are still very serious tensions, the removal of

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those warmongers and what we call the ethnic entrepreneurs that that

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institutionalised hatred. We have made peace and stability much more

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viable. This does not mean that people are going to embrace each

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other in some sort of shared humanity, but it does help create a

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context. You will remember the prosecution against Slobodan

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Milosevic. He said that things were not properly qualified. He said that

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international justice was apparent at first, but then I became cynical.

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Judges did not know what was happening in trials were being

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ruined. He also said that judges were under pressure to be

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technically evenhanded. -- ethnically evenhanded. There is a

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sort of romance with any kind of undertaking can which is

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unprecedented. In 1993, when the Yugoslav tribunal was set up, we did

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not have any other tribunal to look back at. Once you see the daily

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reality of what it means to organise a trial and a prosecution, you big

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end to move towards -- you begin to move towards a postromantic face.

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Could there be improvements? Absolutely. The quality of judges

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and the prosecution, I think many mistakes were made, including the

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idea that we can achieve justice by indicting people from all sides. The

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moral parity theory. We can see what the legacy of that has been. Under

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the tenure of the prom prosecutor -- former prosecutor, nine out of ten

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were acquitted. You defended a general from Croatia. He was charged

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with war crimes committed in 1995 against Serbs living in Croatia.

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Tens of thousands of Serbs fled their homes in operation he led. He

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evaded justice and went to the run for three years. And yet you

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defended him. To have any doubts? was asked to join the team. Came to

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the conclusion that he was innocent. Recently, when he was

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acquitted of all charges. What is important to bear in mind is that

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operation storm in August of 1995 occurred after the genocide, after

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the United Nations failed elite to protect the Vic The Whitlams. --

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protect the victim. The attack which allowed Croatia to reclaim the

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territory was investigated by two separate United Nations missions,

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which both concluded that no war crimes have been committed. This is

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not an argument that goes down in Serbia. They perceive that the

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release of the general was absolute proof that this tribunal is loaded

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against the Serbs. Except that three senior Serbs have also been

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acquitted. There is a lot of criticism levelled against the

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judges, all sorts of conspiracy theories. Think at the end of the

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day the blame lies squarely at the door of the prosecutors office. When

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you do not have sufficient evidence, you did not go to trial. Let alone

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in this sort of context, where these acquittals are going to create

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profound disillusionment. At the end of the day, the judges are not there

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to appease public opinion. Justice is about guilt or innocence based on

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objective evidence. Someone you are also working with now is the son of

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Colonel Gaddafi. You are representing the Libyan judicial

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system, arguing for the right of the Libyan courts to have the trial in

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Tripoli. Libyans used to be afraid of a police state, they are now

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afraid of the absence of state, without people to guard the people.

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A new conflict is building. The state does not really exist in

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Libya. How can he possibly get a fair trial from a country that is

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now run by independent, unaccountable militias? I am not at

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liberty to discuss this case which is pending. But I think the basic

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principle, which is in trade in trading the statue -- statute of the

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criminal Court, is that when courts are able to prosecute, they must be

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given primacy. The International Criminal Court is only there were

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national justice is not possible. But it is surely not possible in

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Libya under the current circumstances. It is a question of

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understanding that any society which is emerging from crimes against

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humanity is not going to have the judicial system of Sweden or Canada.

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It is going to be a society which needs judicial capacity building,

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sufficient time. I think the question can be put in the context

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of, for example, Rwanda. Despite the fact that there was a UN Tribunal

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for Rwanda, there were 130,000 people imprisoned after the 1994

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genocide. And the Rwandan judicial system, which is in a far worse

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situation than Libya, was given the opportunity over time to manage

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these cases will stop I think they have done a relatively decent job.

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Let me ask you about genocide. Genocide has become a trophy which

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Vista is the crown of ultimate importance and suffering on certain

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people. Do you think the word genocide is bandied about to freely?

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I remember after the Rwanda in 1994, the question was is this

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genocide or not? While the debate was taking place in the United

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States -- United Nations, 1 million people were slaughtered. In Sudan,

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Colin Powell said we are not going to deny the label of genocide as the

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Clinton administration did, we will call this buy rightful name, but we

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will still not do anything. It has been put in the hands of political

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activists? We have created this illusion of progress in the United

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Nations, in academic circles and other elite contexts, were we think

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that symbolic condemnation of mass atrocities somehow represents

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progress. And it becomes a substitute for more effective

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action. It does not really matter what you call the murder of 1

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million people in Rwanda or duffle, what is important is whether there

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is any meaningful action to protect those victims. Philip Sands says

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these courts are a world of spiders webs where big flies past freely and

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little ones get caught. We are not going to see American soldiers or

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British soldiers are reigned at the International Court. You look at the

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end date ease, they are all African. When are we going to see a system

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which will hold citizens of powerful countries under scrutiny, the weight

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they do citizens of smaller countries? I have a slightly

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different take on this. I remember the complaints that people had about

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the Yugoslav tribunal, having been established only because the victims

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were Europeans. Another complaint is that we are setting up all these

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courts in relation to Africa. I say good for the African people that

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there is an institution that is addressing the grave injustices data

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being committed. It remains a weakness. China, Russia and United

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States refused to sign up to the ICC. That is clearly a weakness. We

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need to understand the rise of global justice as an historical

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prices. 20 years ago, we did not have a single jurisdiction to

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publish -- punished genocidal murders. Today we have tribunal and

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a number of other instances where we have some justice rather than not at

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all. I must also say that it may be more fashionable to condemn the

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Americans for war crimes, but I think the biggest source of

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