 back we're live. I'm Jay Fidel. This is Sync Tech and we're talking today at the four o'clock clock about transitional justice with Moises Montiel. He joins us from Mexico City. He teaches in the university there and he's also a practicing lawyer there in Mexico City. Welcome to the show Moises. Jay, thank you so much for having me. I'm super thrilled to be here. We're super thrilled to have you. The topic of the show today is crowdsourcing accountability and transitional justice and you and I agreed that there was really more than one interpretation appropriate to the term crowdsourcing but let's take yours first. What do you mean by crowdsourcing? Sure. I was trying to be clever that maybe did not succeed that much at it. Having other people help you or keep tabs if you will. When we're talking about transitional justice, there's a huge component there about truth and accountability. What I wanted to explore today was the role that could be played by the international community as expressed in international organizations, mostly UN human rights apparatus in keeping track of mass and gross violations of human rights. Well, and yeah, I want you to say before the show touched me, namely is to try to get the word out so that people other than you are taking action in the matter. So tell us in the context of human rights and having people do the work and take action in a crowdsourcing methodology. How does that work? How do you start it and how do you make it happen? Right. So as you know, Jay, mostly when you have this gross and systematic patterns of violations of human rights at the domestic level, there's usually a lot of the opacity. There's lack of access to information and there's also difficulties in getting the information out on vis-a-vis what's happening inside the country. I'm Venezuelan, okay? And let me just explain this real quick with an example. Last week on the 25th, if memory serves well, Venezuela sat the Universal Periodic Review. So this is kind of a peer-to-peer assessment that is conducted every four years between the states at the Human Rights Council at the United Nations. Okay, so while it may not be as effective as other tools in the international repertoire in signaling responsibility and pointing the finger at the grossest abusers of human rights, it does help keep track of the human rights performance and record of states in that you got some recommendations four years ago and now you have to sit the review again and have your records scrutinized. Of course, there's always a dimension of politics here and I'll be super quick about this. Some, for example, the coordinators of Venezuela's review were Belarus, Somalia and Cuba. That's a motley crew. Yeah, I mean not exactly the perfect record on the board, but then it was a significant number of countries that chipped in the discussion. They formulated suggestions to Venezuela, which actually in a very subtle way draw attention to the terrible record that the country has. And I think there's a lot of value here when you look at it from the perspective of transitional justice. Okay, so you have a review and you are, Venezuela, I guess as a country, is reviewed by this panel, so to speak, and the panel makes a determination that let's say there are problems. Do they name names? They usually don't. This very particular mechanism of the UPR, the Universal Periodic Review, it's more of let's try not to trash talk each other too much. Just point the finger on where the problems are. Of course, this is by far not the only human rights mechanism at the United Nations. It's just one of the most visible ones. Then you have some other mechanisms, which are far more inquisitive, even adversarial. And that individuals can bring complaints against states for actual and specific violations of their human rights. Say the Committee on Human Rights, the Committee on Social and Economic Rights, there are some myriad of them. But coming back to the point, the thing is, for example, the UPR produces a report with the compendium of the recommendations issued by the countries. So then when Venezuela sits again, the review in four years, they will elaborate the report on the basis of those recommendations that were approved. So it's kind of an institutional blog of the human rights situation as perceived by other countries. So why would a given country be reviewed? Why was Venezuela reviewed? Is every country in the world reviewed? Technically, every member of the United Nations should at some point sit this review. And normally they do this in four-year cycles. Most states go easy on the reviewee, in that you don't want to cause political friction. But then again, for example, in a context such as Venezuela, in which everything is polarized, it's a little more than a popularity contest. But it does put the finger on the main patterns of human rights violations on the country. Of course, the country who's sitting in the review also gets a say. They get to justify themselves in the case of Venezuela. It was this rhetoric about the U.S. sanctions. And for me, I can't do anything. If you allow me a very brief comment here, I've never seen a sanctioned, a sanctioned, sorry, torture or forcibly disappear anyone. So I'm not really sure how that logic operates here. But the important part with the UPR and this plethora of mechanisms at the United Nations human rights system is that at least there's a record of violations of the investigations that go into each of these allegations, be it from civil society, be it from the United Nations body themselves, be it from the victims, there's a record there. And I think that's very important towards a later point, be it at the national level or the International Criminal Court, if that is the case. They have an abundance of information there that will definitely need to be taken into account. And to account for what? In other words, suppose these three countries go down there through their staffers. I suppose you and I could be staffers. We could be investigators. We could look around and smell it, whatever it is. We could talk to people who claim to be victimized. We could write it up, put it all in this compendium. And we take it back to New York, I suppose. And we say this is really a terrible country. These guys are violating human rights left and right. So why don't you guys do sanctions? But could we say that? Would we say that? Have they said that? And what kind of sanctions? Well, actually, the Human Rights Committee itself is not able to levy sanctions. At worst, a very forceful condemnation. And that's actually not very common. However, in other, I mean, in different parts of the human rights system at the UN, for example, you could actually declare the international responsibility of the state. Of course, that's not going to produce per se sanctions. But then, for example, when you take it to the context of the formal investigation that's taking place at the International Criminal Court on officers of the Venezuelan government, well, that's actually part of the body of the investigation that should be taken into account by the prosecutor's office. Is it evidence? It could theoretically count as evidence. There are some, I mean, there are some minor caveats here. There are some very specific and stringent requirements for any kind of information to become evidence, for example, at the International Criminal Court. But who's to say that the rigor and, you know, the methodology employed is not necessarily incompatible at Human Rights Review Mechanisms and eventually before the International Criminal Court. And there's also another dimension here. Those reports, those investigations, those claims brought against Venezuelan in the different parts of the Human Rights Mechanisms could also possibly become evidence at the local level. Say if there were any real intention of, you know, looking into the allegations and, you know, trying to punish those responsible for them, post for laughter. Well, then you have, you have, I mean, the king, how do you call it, the butchers cut as far as, you know, evidence goes? Yeah, they're like the Joker. Exactly. But my point here and what I keep coming back to is that while this mechanism, more often than not, will not produce any tangible consequences in terms of sanctions, in terms of some form of punishment, they do serve as an institutional repository of valuable information about the human rights behavior of the government. So is it made public to the world? It is. It is. Not in all cases and not in all mechanisms, but it mostly is. You know, as you may know, human rights deals a lot. I mean, the whole core of human rights, their currency, so to speak, is naming and shaming. So you're trying to shame violators into good behavior because, you know, countries care for their reputation. They invest a lot of resources, time and effort into keeping a good reputation. Okay, so there is something that actually invites them or persuades them into trying to show, you know, a nice facade of the international community. Well, suppose I'm a government in another state, or I'm an investor, or I'm a major company thinking about, you know, setting up shop in Venezuela. And I see this. I mean, do you expect, for example, that I would be discouraged from investing, discouraged from setting up shop, discouraged from making a deal involving the Venezuelan government? Is that what this is about? Absolutely, Jay. Yeah, I mean, if you look at the record, and I mean, it's not only torture for its disappearance as extrajudicial executions, it's also, you know, taken, for example, proper property rights. There is no guarantee whatsoever that the government will not expropriate you. And that's also human rights. And, you know, if I'm a multinational, I'm Nike, I'm Starbucks, what have you, and I'm thinking about setting up shop in Venezuela, and I look at what's going on in there, you know, I would be severely discouraged. And also, and there's another interesting linkage I had not thought about it. But, you know, in terms of the reputation, now there's this whole wave, or I don't know if it's really new, but we're calling it business and human rights. When, you know, you are trying to get corporations, businesses, to help to contribute towards the respect of human rights. So you have to conduct your human rights due diligence, and, you know, to look whether the country allows for the respect and the protection of these rights. And as a company, I would be extremely discouraged to set up shop in a country like, say, Venezuela, Belarus, Somalia, Cuba, by looking at their records. Well, it's also a practical matter, not having your employees disappear on you. Yeah, you know, that's kind of bad for payroll. Yeah. Well, you know, I tell you, my sense of it is that this kind of violation of human rights is happening in many countries, many of whom are members of the United Nations, many of whom, as you suggest, are actually on these teams, these review teams that go out there, and their hands are not clean. They're going to come back with, you know, a compromised report, and everybody in the United Nations knows about it. You know, I wish, and I was around, I was very young, but I was around when they formed up the United Nations. When I was a school kid, we went down for tours of the United Nations building, and I thought the world of it, I thought we're going to save everybody. But it hasn't worked out that way. And I mean, ideally, my view is the United Nations should have enough power. It doesn't, but it should have enough power to actually stop this stuff. Isn't that what, you know, isn't that what we aspire to? And why can't we get there? You know, now that you bring this up, there's actually a couple thoughts I have on that, and I'm actually left with a sound bite from what I think was your last interview with Santiago Vargas Niño, who is a dear friend. You know, the UN will only be as good or as efficient or as powerful as states allow it to be. There's actually this very heart-breaking phrase by a former Secretary General of the UN, Dag Hammarskod, he said something to the effect of, you know, the United Nations was not created to take humanity to heaven, but to save it from hell, which I think it's a little bit cynical, but like all cynical things, it ultimately brings true. What I mean by this is that, and, you know, I saw the Venezuela's UPR last week, and there was a lot of criticism going around the whole exercise because, you know, why would you be legitimizing a tyrannical regime by treating it as a peer, okay, and shouldn't the UN have a more active hand in trying to address the situations? Yeah, maybe it should as a matter of ethics, but it is prevented and precluded from doing so by the very institutional design that it was created with, okay? So, and Santiago last, I think it was last week, said something to the effect of, you know, the United Nations, even if it has a will of its own, it's no more, or among other things, a tool of the states, be it to legitimize the spotic regimes or to try and bring about some positive change. I mean, we would normally see the pitfalls and the shortcomings of the United Nations human rights system because, you know, it's very visible, it's very evident, but then normally the successes pass under the table. I mean, I cannot recall too many instances of success, but there have been some, mostly and ironically by engaging with states, trying to cajole them into respect for human rights, and I think that's a very positive role, even in the case of the UPR, which actually seems like, you know, a hangout between bros and, you know, to talk about how good we are, but you know, there's some room for improvement. But as long as you try not to isolate states too much, maybe just maybe, you can get them, you know, to make good on some of their commitments, which I think, you know, it's better than nothing. But at the same time, Moises, it seems to me that, and part of it is a result of my discussions with the people from transitional justice and project expedite justice and so, is that the amount, the volume of atrocities and war crimes in the world today is increasing. And, you know, we can talk about why, and maybe it's, you know, it's regional or national, maybe it's, you know, it's sort of a whole degradation of morality around the world, but it is increasing, which, you know, I mean, if it in fact is increasing, you would want the countervailing action to be increasing also, because otherwise, the formula takes you where you really don't want to go. More atrocities and less enforcement, that's the problem. You know, and that's why I think it's worthy at this point that we pivot to my interpretation of your title, okay, crowdsourcing it, it evokes the notion of technology. It evokes the notion of, you know, keeping records, of having records available on the internet, on websites, to everyone in the world, and using that methodology, you know, to shame bad actors and more. And so what I thought when I saw your title, I said, she was, you know, like me, you know, Moises is in, is into data. It's all about data. Let's say myself, you know, even if the United Nations doesn't actually do what we want them to do, we hope them to do, the fact is there's technology out there, even held by very, very hard, hard countries like China, for example, but used effectively, where you have, it's violation of privacy and all kinds of human rights, but they have a record. If you violate their norms, whatever their norms may be, you're going to get it. They're going to apply sanctions against you. And it works for them, it works according to their norms, although surveillance is very creepy and so the way they handle people, worse than creepy. At the same time, there are countries like, I think it was Washington Post yesterday, they had this really disturbing article about the war crimes going on in Kazakhstan, and really ugly things happening about disappearances and murders and torture, all this, I mean, you wouldn't have thought, but there it is Kazakhstan, a mild mannered protest involving the price of oil for your car turns into a murderous episode where the police are really killing people by the car load. I don't know where, and you say to yourself, gee, that's awful. It's an example, again, of the increase in atrocities and violations of human rights. So what I'm thinking is that if there were, I'm really interested in your thought about this, if there were a database, call it atrocities.com. And the results in Venezuela, by name, are reported by official, are reported around the world. And I know that this fellow, Joe Smith, I know that he has been guilty of atrocities. I know it's been reported and complained about him. And it's more than the country, it's the shaming of the individual people who are involved, and it's permanent, and they will never escape from it. Their names will always be associated with the atrocities. Now, I don't know how, you know, that's pretty granular. I don't know how deep you can dig to actually get that information, but some of it anyway would be out there. Is there, is there any good reason we could not do this? Okay. First, first and for most of, and I'm a lawyer here, and you know, we're kind of, how do you call that? You only see, you have tunnel vision. Okay, so the first quorum I would raise with that is, you know, what about, you know, everyone is innocent until proven guilty. Yeah, we're not defamation. No, of course, of course. But then, but I would link that, for example, and I think it comes down to transparency and even the easy, the ease with which information can now be disseminated. Say you have something like that, some sort of watchdog, and we have a lot of NGOs, you know, fighting the good fight in order to make visible things happening all around the world. Okay, and now you have citizen journalists, and this is great. But then we need to liaise that in some way with institutions that can actually then, for example, submit this kind of mischievous persons to the law. And now that you think, now that you mentioned it, Jay, I think it was last week or the week before, you know, that we've been having some universal jurisdiction decisions coming out. I think it was Germany or something with a Syrian. Yes, right. Yeah, that was big news two weeks ago. Yes. And they convicted him and sentenced him. Exactly. So maybe I'm not a big fan of universal jurisdiction, mostly for political, not legal reasons. But you know, it is a tool in the toolkit. What if we bring together, you know, this increase in technology in both quantity and quality of technology and actual attempt at crowdsourcing and democratizing, you know, the, let's call it the monitoring of atrocities. What if we were able to bring them with this new instance of, say, for example, universal jurisdiction? So, you know, that the world will eventually become a lot smaller for people who are grossly abusing human rights. And I think it all comes back to the point I was trying to raise with the original title. I'm sorry for the misrepresentation, but that's okay. I think they work very well together. I mean, we have institutional memory in that, you know, the international organizations are keeping track, they're keeping a file on your human rights behavior. But you also have new ways in which citizens, you know, people are able to document this atrocities, are able to disseminate the information, and ultimately having them serve as the basis to bring these people to justice at the local level, at the international level, or hell, I'll even conceive using universal jurisdiction, why not? Yeah, well, let's talk about that for a minute. Let me give you my thought about, you know, the Germans probably had a lot of information about this Syrian defendant. Where did they get it? Well, they got it from NGOs that were collecting information on him. They got it from people who made reports through the NGOs and presented themselves as witnesses. It's all good that, you know, this could be public. And I certainly, I grant you that, you know, I had to be careful about defamation. And aside from, you know, the legal aspect, you have to be careful about, you know, retribution, you know, you put your name up as a complaining person. And it doesn't matter where you are in the world, you may find yourself disappeared in a third country. Who knows what, you know, because you might be a witness and that you're revealing yourself and exposing yourself. So this has to be done carefully. In any event, so the Germans found enough information to feel that they could prosecute under universal jurisdiction, and they did. And in a way, in the media anyway, it set a precedent. The whole world knew what was going on. And frankly, I think the whole world was waiting for one of those guys in Syria to be tried and convicted. So good for Germany. Germany can function even without Angela Merkel. You can quote me on that. No, we were all sad to see her go. But yes, I mean, while there are some small legal and political issues surrounding universal jurisdiction, you know, the global village, this whole thing about globalization, and I think it's actually positive, at least in ethical terms, that international law and international criminal law are, you know, they're riding the wave. And they're becoming borderless, if you will. Okay, not so constrained by domestic borders. My issues with universal jurisdiction is that, you know, it's the same, the same thoughts I have, for example, about the Nuremberg or Tokyo trials back in the 40s. You know, were they necessary from an ethical standpoint? Yes, absolutely. You had to punish those atrocities. And at some point you had to set a precedent. Were they legal? Now, that's a big question. And I'm not entirely convinced they were. However, as you know, full well, law takes the backseat in the face of politics, sometimes for good, sometimes not for such noble ends. But you know, hey, it's a function of the relationship between law and politics. In the case of the Germans and the Syrian army officer, I'm actually happy from a personal standpoint that, you know, they reached their decision and they actually sentenced them. Okay, well, they found them guilty. I don't know if they actually issued their sentence yet. But I do believe the universal jurisdiction could, if handled, appropriately become a more than optimal mechanism for dealing with this type of situation, especially because, you know, he was never, probably never, or at least not in the foreseeable future. He was never going to see a day of jail in Syria, or a day of court at that. Okay, so if we're celebrating globalization so much, and if we're celebrating, you know, how we've become this global village, okay, then let there be justice in the village, no matter where it actually happens. No, you said a minute ago that, you know, that it's sometimes more about politics than it is about ethics, or law, for that matter. We see that in this country. And, you know, I'm thinking back to the beginning of the United Nations, again, I'm thinking back to when the US was, you know, providing funding and help and counseling to every country in war-torn Europe in 1945, 1946, 1947, and so forth. And that was not just because we were good guys, but because we had won the war. And we had demonstrated power, and we still had the power, the respect, the awe, the influence, whatever you call it. And so we could call the shots. We did call the shots. We could do Nuremberg if we wanted, because we won the war, you know, even if it was questionable in some international law sense. But I'm thinking now we don't, we don't have that power. The Marshall Plan was a long time ago. Our leadership, you know, has been severely, severely undermined. And we can't call the shots anymore. This is a problem, because if you're looking for, you know, and the United Nations was a much more ethical, moral place in those days. It was more principled. More principled. And so if you're looking for a better result, a result either in the United Nations or a result around universal jurisdiction, where any country offended, any country informed, any country with a mind to make the world a better place could do this, it requires leadership. And there is no leadership, really, international leadership. We still have to figure that out. And rather, we have Russia, which is not at all moral, and we have China, which is very pragmatic. Thank you. But you know, I think that's a real problem going forward. And that Project Expedite Justice and Transitional Justice General and the United Nations in its efforts to, you know, slow the rate of atrocity down could really use an international leader here and call it pragmatism, call it power, call it politics, but that's what we need. So where my last question to you, Mois, is where are we going on this? If you allow me a quick historic reflection. Yes, I mean, undoubtedly, the United States played a major role in redesigning what once was the League of Nations and then turned into the United Nations and the creation of the so-called rules-based order. You know, there was a moral dimension to it. I am not sure or convinced that we need one single leader of the international community. I think, you know, after the end of the Cold War, the dynamics shifted. That is something that is not necessarily bad. Of course, we may not like the particular brand of leadership shown by Russia, with Ukraine, if you look at what's happening now, or with China, who are maybe not as morally questionable as the Russians. But, you know, that may not be to our particular liking in terms of, you know, justice, peace, security. But I am a big fan and I believe firmly that when countries with good intentions come together, if there can be such a thing, okay, good things tend to happen. A small example, take the Landmine Convention. That was actually Amnesty International's brainchild. So, they got together with the Canadian government and a handful of other European governments and they pushed through the convention. Okay, and well, we could discuss how forceful the follow-up of that has been. But I do believe and I remain convinced that, you know, when countries who have a good aim come together, positive change can be brought about. It's slow, it's tedious. Sometimes, you know, you need a couple of, you know, turning point moments, like for example, the Rwanda genocide back in the 90s. But then after that, you know, a whole new conversation on humanitarian intervention came about, which has actually improved in many ways, not so many and so others. The way we think about, you know, the moral responsibility and even the legal responsibility of say, the United Nations Security Council to intervene when there are war crimes, crimes against humanity. So, I would like to think that we're moving in a generally good direction, but we need to keep a watchful eye. Yes, the United States no longer has this predominant position in shaping global discourse and global politics, but it does that doesn't mean in and of itself that it is epiphenomenal or that it doesn't matter anymore. If it comes together, if it call us with other, you know, well-meaning countries, who knows, maybe we'll even save or salvage something of that rules-based order and improve it. Well, we do have a younger generation coming up and we have you and we have Nicholas and we have Project Expedite Justice. Young people who have a different view of the future and the world and maybe they will emerge into positions of power influence. We have social media, which tends to break borders down. Sometimes it does well and sometimes it does not do well, so the jury's out, so to speak on that. But maybe there's a sine curve here, you know, and maybe the next time you look, it will be better. The United Nations will be recreated somehow and this the whole notion of global morality will emerge. I'm knocking wood on that and I would like to, you know, connect the dots with you again on that, because I think that's what we're really talking about. Yeah, let's get chopping a few, I don't know, years time and we'll talk about it or preferably sooner, you know, to comment on the process about it. Yes, yeah, to connect, to watch it so carefully and see what we see. Moises Montiel, thank you so much for joining me today here on Transitional Justice. Thank you for having me, Jay. It was a pleasure. Aloha.