Payam Akhavan - International Human Rights Lawyer HARDtalk

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

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

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

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

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

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

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

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

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

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

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

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

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

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

pursuing some of your own personal demons through these

internationally courts? I think those experiences make us

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

reduce human rights, what really motivates us to achieve justice

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

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

understanding how somebody in Rwandan or wherever else may feel

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

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

Hague in October 2012 to hear allegations of crimes after the

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

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

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

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

aurp former United Nations prosecutor, can you do justice for

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

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

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

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

Constitutional Court and to begin the political transformation in

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

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

the testimony of the victims through satellite TV, through the

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

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

decade of the revolution thousands of people were executed simply

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

crimes had occurred. There is a propaganda piece which suggested

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

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

champion, which shows that once human rights and accountbility

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

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

are open to the charge that the witnesses selected themselves

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

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

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

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

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

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

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

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

through objective evidence, corroboration, it is a much Moore

focused and rigorous bay of understanding phenomenon than let's

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

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

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

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

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

themselves and funded by them, which is a remarkable

accomplishment of survivors and victims becoming activists and

putting together a truth commission which I think is unprecedented.

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

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

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

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

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

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

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

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

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

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

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

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

democracies right to pursue sanctions against Iran because of

the nuclear programme? Will it simply strengthen the regime?

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

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

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

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

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

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

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

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

dictatorships that pursue nuclear programs which they gave up under

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

without democracy will by nature become military. Can the West

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

choices seem to be a military confrontation, which is an

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

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

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

conditioning inter internal acceptance. Policy makers see it as

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

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

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

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

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

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

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

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

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

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

revolutions witnessed in Islamic Middle East, because people just

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

through historical transition from transition to democracy, that

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

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

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

generation which is post ideological and Iran has the

transformation of the entire region. Dz the new President represent

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

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

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

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

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

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

that Iran cannot be ruled indefinitely through terror and

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

accommodate the demands of people for greater openness and

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

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

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

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

experiences that open you to understanding human suffering and

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

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

several hundreds of women and children had been brutally

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

internationally lawyer. It was a very intimate encounter with what

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

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

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

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

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

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

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

responsibility for ethnic cleansing. It was meant to promote

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

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

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

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

necessarily about reconciliation. Reconciliation is an incidental

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

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

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

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

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

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

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

Although there are still very serious tensions, the removal of

those warmongers and what we call the ethnic entrepreneurs that that

institutionalised hatred. We have made peace and stability much more

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

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

context. You will remember the prosecution against Slobodan

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

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

Judges did not know what was happening in trials were being

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

technically evenhanded. -- ethnically evenhanded. There is a

sort of romance with any kind of undertaking can which is

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

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

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

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

Could there be improvements? Absolutely. The quality of judges

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

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

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

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

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

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

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

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

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

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

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

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

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

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

territory was investigated by two separate United Nations missions,

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

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

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

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

acquitted. There is a lot of criticism levelled against the

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

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

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

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

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

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

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

Colonel Gaddafi. You are representing the Libyan judicial

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

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

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

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

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

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

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

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

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

given primacy. The International Criminal Court is only there were

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

Libya under the current circumstances. It is a question of

understanding that any society which is emerging from crimes against

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

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

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

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

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

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

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

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

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

Vista is the crown of ultimate importance and suffering on certain

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

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

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

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

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

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

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

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

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

that symbolic condemnation of mass atrocities somehow represents

progress. And it becomes a substitute for more effective

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

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

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

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

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

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

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

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

they do citizens of smaller countries? I have a slightly

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

the Yugoslav tribunal, having been established only because the victims

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

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

there is an institution that is addressing the grave injustices data

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

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

need to understand the rise of global justice as an historical

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

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

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

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

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