Genocide with Impunity
Air Date: July 1, 2016
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. While the Obama administration failed to close the Guantanamo Bay prison facility in one fell swoop, the enemy combatant prison population has shrunk considerably under his tenure. Today, I welcome Alexa Koenig to reflect on counterterrorism during the Obama years and to consider the national security vision of his successor, the 45th president.
She is the executive director of the Human Rights Center and a lecturer in residence at the University of California Berkeley School of Law. Co-author of Hiding in Plain Sight: The Pursuit of War Criminals from Nuremberg to the War on Terror, Koenig has studied closely U.S. detention and interrogation practices, the International Criminal Court, and atrocity prosecutions. “Though the legal regimes needed to apprehend suspected war criminals to justice are largely in place, the political will to make arrests happen remains elusive,” she and her colleagues write. They conclude, “Until this situation is rectified, murderers will get away with murder and torturers will retire with pensions.” Alexa, it’s a pleasure to have you here.
KOENIG: ¬¬¬¬It’s a pleasure to be here. Thank you.
HEFFNER: When you think about the legacy of the Geneva Conventions, which have been invoked during this election cycle, the Nuremberg Trials, do you think of them as informing the current American mindset towards the practice of interrogation, towards the practice of the legal system?
KOENIG: I certainly think that Nuremberg plays a huge role on the American psyche. We played such an instrumental role in bringing together the system of justice in the aftermath of World War II, and in the aftermath of that conflict, we really became a leader on the global stage around how we would deal with moments of atrocity, how we would account for them, and account for them in a way that really adheres to a rule of law.
So, I don’t think we’ve ever lost that as part of our national identity. It’s something that is so central to who were are and to this critical role that we’ve played on the global stage, but at the same time, I do think that 9/11 became a shifting point, where we began to think about what are, both the benefits and the limitations of adhering so closely to the Geneva Conventions, are there limitations, and how are we going to think about our role going forward?
It was a moment of tremendous vulnerability for our country and we really had to grapple with our relationship with other countries and other actors in ways that we really hadn’t, at least for a very long time.
HEFFNER: And what was the result of that grappling?
KOENIG: One of the things that really emerged in the aftermath of 9/11 was a resurgence of the idea of American Exceptionalism, and of course American Exceptionalism is this idea that the United States is a place that’s so exceptional that maybe it shouldn’t have to adhere to the same bodies of international law that the rest of the world is expected to follow.
Um, it’s a body of law that we really have played an instrumental role in developing. You hear a lot in the aftermath of 9/11 about the Constitution, of course, being such a strong instrument, that the protections that it provides both for citizens and non-citizens are so great that in many cases they’re even more extreme and more protective than what you would find under the international legal regime, but at the same time, I think there are a lot of attorneys, human rights activists around the world, who’ve challenged that conception, not questioning the strength of the Constitution, because it is a strong one, and, and perhaps the most strong in the world, but the ways that it was being interpreted in the aftermath of 9/11 to provide a flexibility for good and for potentially bad, depending on the perspective.
HEFFNER: Right and let’s be specific.
HEFFNER: You really mean Black CIA Black Sites, enhanced interrogation.
HEFFNER: That ought not to be confused with torture.
HEFFNER: And we’ve seen a clarity of purpose in these Obama years, have we not…
HEFFNER: …in rectifying that aspect of confusion?
KOENIG: Yes. I do think that there has been a clear statement towards upholding principles of international law. We see, um, narratives of international law coming back into our domestic legal conversation in ways that we hadn’t previously.
What I do think we’ve had to grapple with more recently is this tradeoff in policy choices. So, for example, when we see this ramping up of indefinite detention, particularly at places like Guantanamo and Iraq, Afghanistan, after 9/11, um, there of course was an outcry once the abuses were brought to light that had occurred at Abu Ghraib. Um, all the amazing investigative journalism that took place during that time.
And so, you see this shift in the narrative, here in the United States, around what the American people deem to be acceptable, and of course there’s differences between people’s perspectives on that. But the policy alternative to indefinite detention has often been targeted killings. The idea being that when you have potential enemies overseas, that you need, you feel you need to stop preemptively, because you’re concerned that they’re actually going to attack the United States or otherwise harm its interests in really extreme ways.
How do you stop them? One way, of course, is to lock them up. The other is to kill them, and so I think that, that Obama came out so strong in the beginning of his presidency around this need to close Guantanamo and to eliminate black sites, but of course that means that that allowed, along with the technological development, this up-ramping of the use of drones for targeted purposes.
HEFFNER: But both under the Constitution…
HEFFNER: And under the Geneva Conventions, wouldn’t you say that’s allowable?
KOENIG: You know, I think there are different perspectives on that. I, I do think the dominate understanding right now is that when you are conducting a war, that you can certainly have isolated killings when you, um, as long as those killings are proportional, the killing of civilians are proportional to the military objectives. Now, there is some back and forth as to whether our checks and balances and the legal framework we have in place is protective enough to ensure that the balance we’re striking is really an appropriate one. Um, one of the areas that’s been particularly criticized is the idea of signature strikes. So, not necessarily targeting an individual for his or her particular identity and knowledge of what he or she is about to do, but because they have a certain signature, whether it’s clothing that they wear or places that they hang out. It suggests they may be affiliated with terrorism, and that’s where I think a lot of human rights attorneys, civil rights attorneys, are beginning to push back and say, we need something a little bit more stringent than that for moving forward.
HEFFNER: We heard during this election cycle one of the presidential candidates talk about carpetbombing.
HEFFNER: That is where you might draw the line between what is Constitutionally permissible and what is an unavoidable conflict, not just with our own law but international dictates as well.
HEFFNER: At the same time, Americans see scanned images from airplanes of Boko Haram, ISIS, and when you talk about a targeted drone strike.
HEFFNER: In many instances, we shouldn’t be focused on individuals, we should be focused on exterminating the entire entity.
HEFFNER: And this is where it becomes tricky, because the families who are presumably innocent bystanders to this, um, are in question and potentially their lives are in jeopardy, so where do you draw the line?
KOENIG: It’s… That’s a great question. I mean, I think there are certainly advantages to drone strikes, in the sense that of course American personnel are not there in the planes. Um, you do have a degree of precision that perhaps you don’t under, say, carpet-bombing, um, and that’s important. This idea of proportionality is such an important one when you’re talking about war crime situations, where whatever you do has to be… The civilian deaths have to be proportional to, um, your military objectives, and you can’t have them be excessive.
I think what we need is more information, quite frankly, at this point. I know Obama’s administration is about to make a statement soon, um, around civilian deaths from drone strikes. We also, though, I think, need to weigh some of the costs. So, I think we’ve been a little bit, um… I don’t want to say glib, but we’ve been a little bit optimistic about the benefits over the costs. There have been… There’s been a number of studies recently that have shown that the impact on the men and women who are controlling drones, even from remote locations, is more extreme than we thought it would be. Certainly, the numbers that are being gathered around civilian deaths, by investigative journalists, are higher than what the administration has suggested they really are. So, the more transparency we can have around this, both around the scope of damage, the precision of these attacks, the countries in which we’re using them, and, and I think there’s a debate there as well.
So, strikes that we’re doing, for example, in Yemen or Somalia, countries with which we’re not at war, whether they’re… A war on terror is broad enough to legitimize strikes that are done in those countries, or whether, because we’re not at war with those countries, these are actually illegal acts that invade some degree of sovereignty is a question on the table.
HEFFNER: And that question around this table is one that we consider in defining war and…
HEFFNER: When, when I think opponents of the Bush administration were critical of this idea of a war on terrorism. Well, it isn’t a war against a state.
HEFFNER: If it is, it’s a state of ISIS or Al-Qaeda.
HEFFNER: But there’s so much merge together that, to my mind, it always justified the idea of calling… Differentiating it from…
HEFFNER: A war against Iraq or Afghanistan, right?
HEFFNER: … Tell our viewers about this idea. Hiding in Plain Sight.
HEFFNER: And this is the title, also, of a forthcoming documentary on PBS. What do you mean by “Hiding in Plain Sight?”
KOENIG: Great question. Um, it means many different things. The book was really oriented around how, when you have the worst human rights abuses in the world, the most egregious war crimes, do you get the highest level perpetrators, the commanders, the presidents of countries, behind bars, if you can show that they actually played a seminal role in whatever atrocity took place?
Um, what we’ve seen over the last 60-70 years is that so many of these highest level people basically go free, and we can even see that in the context of Abu Ghraib, where, yes, we had prosecutions at sort of the middle level and below for the abuses that happened there, but they, they only went up so high.
Um, how do you get people like al-Bashir of Sudan who’s been in… Indicted now twice by the International Criminal Court, or, um, of course we just had a conviction a couple of weeks ago around Karadzic, who was hiding out in Belgrade, who actually assumed a different identity as well, grew a big bushy beard, and pretended to be a new age hero. He was a sexologist for a while, and there was a great story in the book where he used to go to a bar, you know, on a fairly regular basis and there was a big portrait of him as the President of the Serb Republic, hanging in that bar, and he would sit in that very room and there were a number of people in that room who had no idea who he was. Of course, there were enough people who did know who he was, that when the political incentive shifted and Serbia really wanted to become a part of the European Union, um, that there were people that did go and apprehend him.
Of course, you have al-Bashir, the President of Sudan, who’s on the cover of the book, who’s not hiding out, who’s not using some kind of pseudonym, but who is basically flaunting his, you know, purported immunity, or what he’s saying should be immunity as a head of state. Well, this whole idea of justice in the 21st century is that there should be no immunity for head of state, if he or she is the individual who’s actually committed these atrocities or led for these atrocities to be committed against vulnerable citizens.
So, he’s openly traveling the world. He’s had over 70 something delegation visits, and nobody has arrested him, even those countries that are legally obligated to do so, because they’re parties to the International Criminal Court.
HEFFNER: To what do you attribute that?
KOENIG: Political will. I think that, increasingly, as we did our research, we interviewed pretty much every major war crimes tribunal leader, from the chief prosecutors to the tracking teams, to diplomats who are engaged in creating these tribunals and asked them, “How do you get these people in custody? When you’ve had success, why has it been, and when you haven’t, why not?”
And we really looked at three things: we looked at the legal constraints and opportunities, the operational constraints and opportunities, and the political constraints and opportunities, and we ultimately found is that it’s always politics that dictate who goes to… Who faces justice.
HEFFNER: Why do you think that, um, in an increasingly globalized… environment, there has been a concession, peer countries are actually conceding any right they may have to intervene… On behalf of the people who were denied justice…
HEFFNER: Because of a corrupt regime?
KOENIG: Right, I think there’s a few things going on. I think states are beginning to be nervous that actually Presidents could go to jail for the crimes that, that people commit in their name, um, and so there’s a precedent setting issue that’s of concern. Another issue that we found… Actually, there’s a couple. One is that it really takes individuals in a lot of these cases to continue to dogged pursuit of individuals to get them behind bars. Often, the political tradeoffs are such that it’s easier for people to allow the status quo to remain. People are concerned about the potential purported tradeoffs between peace and, um, accountability, which I think, in many cases, is actually a false tradeoff. I think a lot of times they can actually go hand in hand and peace may be furthered when you have some sort of accountability…
KOENIG: From the people. Um, I think there’s also a tension in the narrative. So, for example, in Africa right now, you see a lot of pushback against the International Criminal Court, and the idea of the court being neo-colonialist. Um, I think there are certainly concerns around the fact that so many cases have happened right now in Africa, although you see the preliminary investigations expanding beyond that region, but you talk to the survivors in a lot of the countries in which we work and many of them want the International Criminal Court there. It’s the higher ups who are often saying that this is something that those countries don’t want. So, there’s a tension in those narratives in many of these contacts.
I think it’s also a temporal issue. So, one thing that you realize when you look at the arc of justice, from say the 1940s to the present day, is that sometimes it takes 20 to 30 years to actually get the highest level people to be accountable for their crimes, and the reasons for are multiple. One really important one is A) their political power wanes, and they’re less important on, on the global stage, at a certain point. Their political allies and protectors fall from power, and so there’s a vulnerability. Um, second, you have a re-discovery of the crimes of your fathers. You know, a generation down the line. You really see that in the World War II context.
KOENIG: When, um, a couple of last name of Klarsfeld really pursued the Nazis 20, 30 years after World War II and were determined to ensure some kind of legal accountability. There’s a famous, um, incident, and we talk about it a little bit in the book, where Beate Klarsfeld actually slaps the chancellor of Germany and she basically says, This is the child slapping the father for his sins. Um, and, and a n… A necessity to move on by atoning for what’s happened.
HEFFNER: Right. It, it’s not a lack of jurisdiction, per se, because the Criminal Court has developed a reputation for a very glacial process, but one that does seek out and punish, um, folks who, who commit these crimes, but in the American context, we don’t subscribe to their legitimacy, insofar as their pursuit of justice against Don Rumsfeld…
HEFFNER: And George W. Bush, right? So, there is a kind of question of legitimacy of jurisdiction.
KOENIG: Mm-hmm. So, the United States obviously played a very central role in developing the Rome Statute, which is the body of law that brought the International Criminal Court into being. So, we were engaged early on, and this notion of an International Criminal Court has been around since the 19th century, and we’ve been big promulgators of that vision. Um, 9/11 happened and I think there were new concerns about the potential of impacting US Sovereignty by bringing, holding US administrators or officials, um, accountable in an international court.
At the same time, we’re really seeing kind of a moving away from this idea of American Exceptionalism, towards greater engagement with the system of international global justice. One of the most recent examples would be Syria, where my understanding is that there are several individuals in the State Department and elsewhere who are actually helping to develop a body of evidence so that if the International Criminal Court eventually receives a referral around the crimes that are currently being perpetrated in Syria, there’s gonna be an overwhelming amount of evidence, um, collected in part through the United States and in part through NGOs that have really been doing some amazing work on that front.
HEFFNER: Is, isn’t the concern of the United States as well and the Western world, if you can speak broadly… that empowering these judicial bodies could ultimately upend, um, liberal society as we know it… And let’s take this case of Gaddafi.
HEFFNER: The result has been unleashed terrorism, um, and an unleashing of extremist ideas. Um, and the further development of ISIS, and so the Americans have… The American perspective has been torn, as you said, a lot of mixed signals being, uh, delivered, retrospectively, about that engagement because, yes, were there crimes committed, but is the greater crime what’s going on now?
KOENIG: Mm. Great question. Um, you know, I think the way that we need to think about these international courts is as a tool and a toolkit, so when you talk about Gaddafi and you talk about Libya, of course in that, in Gaddafi’s case in particular, there was no bringing him to a court of law. You know, courts have a number of different functions in society. Some of them are symbolic. Some of them are very pragmatic …
HEFFNER: But do, do you think if, if, if it had not been an assassination or death, rather through the channel of justice that…
KOENIG: Right, what would’ve happened?
HEFFNER: That would’ve led to more a sustainable Libya?
KOENIG: That’s a g… An excellent question. I’m not so… I’m not sure, and I don’t think we’ll have an opportunity to figure that out. Um, what I do think is that we need different groups who have different roles to play in this idea of global justice really doing their job, and maybe it’s because I’m an American attorney and believe strongly in this idea of zealous advocacy. The court’s job is to actually prosecute individuals, you know, around whom there is actual evidence of war crimes abuses, in that court of law.
For diplomats, for people who are representing different countries, who are thinking a lot about foreign policy and the relationship of countries, theirs is to, to really weigh those tradeoffs of whether a court of law is the best mechanism for accountability going forward and for the greatest amount of stability, and there’s a lot of tension, um, sometimes, at least in the dominant narrative. Richard Goldstone, who was the first chief prosecutor for the Yugoslavia Tribunal and for the Rwanda Tribunal, I think is a great example of someone who is able to really work that, that fine line between the court’s objectives and the d… diplomatic objectives and really try and tease out what are the security ramifications if you actually do shift some of this accountability into courts?
HEFFNER: Let me ask you about Rwanda. Uh, of course, the horrors we can see, um, still to this day.
HEFFNER: You identify the UN as failing to provide the peacekeeping tools to resolve the conflict as it was occurring in real time.
HEFFNER: And then later doubling down on that failure in provide… Not providing the equipment to navigate the legal j… The legal process.
HEFFNER: Identify who the culprits were, whether it was the government or the extremists.
HEFFNER: And so, as that country, it’s hard to believe, but that country’s still alive.
HEFFNER: And still has a government.
KOENIG: In the Rwandan case, you see the International Criminal Tribunal playing a really, um, normalizing role to some extent, sending a signal that the international community will at least acknowledge what has happened in the country, and ensure that some people are brought to justice for it, in very tangible ways. I think both Rwanda and the former Yugoslavian Tribunal are seen as successes in the sense of having brought as many people to justice, um, as was part of its mandate. Of course, the vast majority of people who are actually prosecuted ended up not being prosecuted in the Rwanda tribunal itself, but in local courts. Um, thousands and thousands of people compared to, you know, the relatively small numbers that you see in the Rwanda Tribunal .
I do think it… It was something where it would’ve been… Obviously, the, the United States, the global actors, should have probably played an earlier role in acknowledging and somehow trying to address the issues that were unfolding in Rwanda in very rapid time, admittedly. Um, I think this was some… Some attempt to actually create an historic narrative around what did occur, with the idea of at least having people come together around that narrative and agree on that narrative so that you can move forward.
HEFFNER: And has there been a reconciliation within the country between the descendants of the Hutus and Tutsis?
KOENIG: That’s a great question. Um, I have not spent much time on the ground in Rwanda. I’ve spent some time at the Tribunal, which of course, isn’t in Rwanda proper. I have heard of some attempts that I think are a little bit difficult. I mean, it is very hard to get true reconciliation, and I think that’s one of the things that we continue to struggle with, both in the Rwandan context and elsewhere. So, there’ve been attempts to have these reconciliation, you know, moments, where you bring together survivors with the people who killed someone’s loved ones and hopefully have some degree of healing and moving on.
KOENIG: Whether you can actually ever reconcile with the man who has raped you or has killed your child or burned your house, you know, I’m, I’m skeptical.
HEFFNER: How does that compare, though, to the growth of violent extremism… elsewhere in Africa? Because that was a more insular conflict.
HEFFNER: Whereas in Northern Africa especially, there is, I think, a different phenomenon going on.
KOENIG: Yeah, and I think that points to one of the challenges for the International Criminal Court. So, you look at the Rwandan Tribunal, you look at the, the Yugoslavian Tribunal, they had limited geographic mandates, limited temporal mandates. The International Criminal Court is supposed to be crossing geographic borders and dealing with some of these messier conflicts that we’re seeing today.
I don’t think we’re quite ready for the messiness for that, and I don’t think we’ve had a lot of precedent for it. Um, so the War on Terror, trying to fight ISIS or ISIL and to figure out, do we have authority to bomb, you know, or to target individuals across countries and in countries with which we’re not at war? That’s all being debated… and played out right now. Um, from a…
HEFFNER: When you say we’re not ready for it, what do you mean?
KOENIG: I think that there are a lot of instances throughout history where you see technology getting ahead of legal frameworks. Drones are one great example of that, where we ended up with the capacity to target individuals in places all over the globe very early on, but we don’t yet have a legal framework in place.
KOENIG: We’ve been limited in the use, predominantly in the early 2000s, to the United States using them for targeted assassinations, but that’s changing quickly. Um, so there’s this game of catchup that we’re always playing.
HEFFNER: But what about, not the technology… but the genocide itself? The genocide of ISIS?
KOENIG: The spread across borders?
HEFFNER: Against, against Christians and against many, many a huge preponderance of Muslims.
HEFFNER: So, that tech… The technology isn’t a question there.
HEFFNER: In terms of how the courts can resolve these conflicts, but they can’t… is the reality they can’t parachute in because, you know, the IEDs are going off every other day and beheadings are still occurring? I mean, it’s, it’s a volatile situation in which the legal process cannot inhabit yet?
KOENIG: It’s a couple of things. I think one it’s a question of resources. So, whether you’re talking about military intervention or you’re talking about International Criminal Court and getting some kind of legal accountability, you have to figure out how you’re gonna best utilize those resources, and that’s tricky. So, if you look at the International Criminal Court’s office of the prosecutor, a colleague of mine at the Human Rights Center says repeatedly their overall budget each year is smaller than that for the police in the city of Berkeley. Um, that’s a really small amount of money, and they can’t be everywhere at all times. They have a very small team, and it’s very hard for them, legally, to get on the ground in a lot of these countries and actually gather the evidence that’s needed to actually build these cases. Some of the most complicated cases we’ve ever seen.
Um, so I think there’s a lot of strategizing about can you use local actors to be gathering evidence of war crimes? How do you do that and not further endanger those like, local citizens? Are there NGOs on the ground that can be taking video, now that we have this proliferation of smartphones? Can we basically harness those new technologies to expand the strength and the ability to get evidence of these crimes going forward?
HEFFNER: Finally, Alexa, Is there any debate in your mind that what, uh, ISIS is capable of and what they’ve been doing…
HEFFNER: Qualifies as genocide?
KOENIG: You know, I think there are really strong arguments right now that it is, particularly in some of those context. I think that the United States have made some strong… Different actors in the United States have made some strong comments that suggest it is. Um…
HEFFNER: Because that definition seems to be imperative in triggering any action.
KOENIG: Right, well, and I think there’s two definitions, and we need to be really clear about what we’re talking about with genocide. There’s genocide as sort of a normative term. It’s sort of the lay understanding…
KOENIG: That we’re having mass killings of t… People who are targeted for a broad range of reasons. From a legal perspective, it’s actually a very narrow definition and what you can actually get a legal accountability for in the genocide context is super small. You only have, um, you can only have those targeted killings be around for very small areas like political… for political reasons. Racial ethnic reasons, et cetera. And you have to prove the intent of the perpetrator in a legal context. It’s a very difficult, difficult thing to prove.
When it comes to ISIS, you know, there’s enough out there that I don’t think that will be as hard as it has been in other contexts.
HEFFNER: Alexa, thank you.
KOENIG: Thank you.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion in to the world of the ideas. Until, then keep an open mind. Please visit The Open Mind website at Thirteen.org/openmind to view this program online or to access over 1,500 other interviews, and do check us out on Twitter and Facebook @Open MindTV for updates on future programming.