 Welcome back to Think Tech. I'm Jay Fidel. This is transitional justice. Today we're going to talk to Robert Petty. He has been involved in transitional justice for crimes, atrocities, or a lifetime, including in Cambodia and other faraway places. He has some perspective that we would really like to know about. So in a moment we'll be back for that. Yeah, the genocide question. And genocide needs to be defined. Of course, Robert, you're a lawyer and you've been dealing in this question and other related questions for decades and lifetimes. And I wonder if you could help us right out of the box on what is genocide? Genocide is a legal concept that has come to embody in the public consciousness the worst expression of outrage at the worst of humanity. And that's what I wanted to bring across today is that even though people have been believed that they've been victimized and they've been victims of genocide, that societies believe it, that the general public, it's a first and foremost a legal concept. And if you want to be able to achieve the promised results of accountability for genocide, I think it's important and it's my experience that you have to manage the expectations of people and make them understand that their victimization was real. It's not denied, but in terms of a legal concept, it has to fit within certain criteria. Is there a question of intention? I mean, can you have the intention of committing genocide, but not the fact? In other words, you don't achieve your intention? Or do you have to have both to make a case for genocide? No. And actually, the Convention on the Prevention and Punishment of the Crime of Genocide, which is a 1948 convention, in its definitions, in its statute, does include committing and attempting to commit. So even if you don't succeed, you can and will be prosecuted or could be prosecuted for genocide. And what is genocide in terms of the intention or the fact? In other words, if I want to spirit children away into Siberia and change the way they think in order to disrupt the culture of Ukraine, the people of Ukraine, the families of Ukraine, the society, is that genocide? Well, the best refuge of a lawyer is always the law, right? So let me read you the article two of the Convention of the Convention, as I said, on the prevention and punishment of the crime of genocide. It says, in the present convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such. And the five ways are killing members of the group, causing serious bodily harm or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group. And finally, forcibly transferring children of the group to another group. So your answer is, your answer is, if you prove beyond a reasonable doubt, or whatever level of evidence threshold this is in that court, that you did indeed having the intent, don't forget, it's a special intent, the intent to destroy in whole or in part that religious, that group in question as such, because of that group exists and forcibly transferring children, then you will be found guilty. So that raises an interesting question, because you're not talking about one case, not one atrocity, not one example of torture, not one, you know, single case, single victim, you're talking about a people, a culture, a large number of people, sort of prove a case of genocide, you have to look at the whole group. And one witness about one atrocity is not enough. How do you, how big is the group have to be? How do you establish that sounds very difficult? It is, it is an extremely difficult charge to prove, but not necessarily because of that group issue, although I want to talk about that. It is because of that specific intent. Now in most case, most criminal cases, you have to prove that the person intended the consequence of its actions, and did commit those actions. In this particular case, you have to prove not only, for example, that the person killed members of the group, but intended to kill them because they were a member of that group. So it's a double intent. It's one of the rare crimes, actually, sorry, I know it's the only one that has this special intent, a double intent. And I hate crime in the U.S., isn't it? Well, it has to be better. It's not only that you murdered the person, but you murdered the person because that person had a certain profile in a group. It was a member of a group. But the issue in terms of the genocide, in terms of genocide, sorry, is that you can only be found guilty if you committed one of those five acts that are enumerated against members of four specific groups. So a national, ethnical, racial or religious group. If you, for example, as was the case in Cambodia, if most, the vast majority of victims, and we're talking about 1.2 million people, almost 25% of the population killed over four years. The vast majority of these people were not victims of genocide. They were stabbed. They were starved to death. They were worked to death. They were tortured to death. They were all killed, but they were not, most of them were not victims of genocide because the Khmer Rouge, their intent was to basically re-engineer Khmer society from the ground up. They wanted to create this agrarian utopia. And if you were not part of that, you know, ideal agrarian culture or society, sorry, and or were thought not to be able to be changed and adapt to it, then you were an enemy, a political enemy, and you were killed. You were smashed because not because you were a member of a national, ethnical, racial or religious group, but because you were a member of a political group, the bourgeoisie, those who could not become part of this agrarian utopia. And so one of the hardest things I've had to do in Cambodia, despite the whole culture, the whole country is convinced, and people, survivors, were convinced that a genocide happened in Cambodia. And if you look up Cambodia or what happened in, you know, genocide in Cambodia, in Wikipedia, you'll see the genocide in Cambodia or Cambodia genocide or whatever. But one of the hardest thing I had to do was to tell these people that, yes, your family were victimized, you were victimized, thousands, millions died, but most of them were not victims of genocide and I'm not going to prosecute people for genocide in these cases because it's a legal concept that the drafters of the convention, and I want to make this clear, the drafters of the convention in 1948 purposely chose not to include political as a class to be protected, as a group to be protected, and that's the intent. That convention protects those groups in a way because not only does it seek the punishment of the crime of genocide, but it forces all 152 signatories to the convention to prevent genocide. So there is a duty and that's why, for example, if you remember when Colin Powell said they were genocide, a genocide in Sudan, that has a legal meaning that qualification triggers an obligation on the US who became a member of it, you know, a signatory of the convention 1988. So, you know, only 40 years later to decide to prevent genocide. But that phrase triggers an obligation, according to the convention, to prevent and eventually punish genocide. So the drafters in 1948, as I said, purposely chose those four categories to be protected. And in Cambodia, that was a main issue. A couple of questions about all of that. What did you prosecute them for? And what is the distinction of the way you cast it as a prosecution in Cambodia with the way it would have been had you prosecuted it, had you been able to prosecute it as a genocide? There were actually two charges of genocides that were laid against two individuals. You must remember that we had five accused because this was 25 years, 30 years after the crimes. The youngest was 70, I think, or 70 something. And the oldest died at 95, I think. So those were the most senior members of Khmer Rouge that we could prosecute at the time. And there were eventually two of them found guilty of genocide. But guilty of genocide against the Vietnamese or a group of Vietnamese who were in Cambodia and Chams who were ethnic Cambodians, but who were Muslims and who were killed because they were Muslims, because religion was abolished under Khmer Rouge. But Islam, sorry, was perceived as being particularly an enemy of the reform that they were seeking. And Vietnamese were an ancestral enemy of the Khmer. So those two populations were killed. And two individuals, one was found guilty of having committed genocide against the Vietnamese. And the other individual, Nunchea, the number two in the regime at the time, was found guilty of both having committed genocide against both groups. So we did manage. But don't forget, genocide is a legal term, a legal convention. But these crimes, these mass crimes are also punishable as crimes against humanity. And generally speaking, if you have elements of genocide, if you feel confident enough that you have a case for genocide, you have a case for crimes against humanity as well. And those charges are laid side by side. And then the judge decides which ones are proven. So you prosecuted the ones that could not be legally treated as genocide as crimes against humanity? You charge both. You're chargeable because crimes against humanity, you need to prove a widespread or systematic attack against a civilian population and the commission of a bunch of underlying crimes, murders, rapes, et cetera, et cetera. So generally the fact patterns match. There is a mass violence committed against groups of unarmed or defenseless people. Now, the intent can vary. And in some cases, during the course of that commission, there's different locations, different individuals, different events that could be qualified as genocide. Look, for example, Srebrenica, what happened in Bosnia and Srebrenica. There was a conflict there in the former Yugoslavia, but only one case in Srebrenica where 7,000 Muslims, men and boys were killed was found to be genocide. So the fact patterns generally lend themselves to charges of both crimes against humanity and genocide. And then it's up to you, as I said, to present the best case and the judge to decide. How about the decision on sentencing on punishment? Is it the same or different than truly sides? The judges decide, depending on the court, obviously. But, and that's why I meant, that's why I said earlier a measure of justice and how it's important to have that in mind. How can you talk about justice, right? When you're talking about hundreds of thousands of innocent people killed, for example, in Rwanda in 90 days, about 500,000 killed by day neighbors or their family members, even or their, you know, carers and talking about justice or the Holocaust. Well, actually, genocide, I don't know if I can. Genocide comes from the Holocaust, right? Genocide, the word genocide was created in 1944 by a Polish Jew named Raphael Lemkin, who was an idol of mine, not because he was a prosecutor, but because in his book, Access Rule in 1944, examining what the Nazis were doing under their rule, decided and advocated and kept advocating for the rest of his life that a crime such as this one, where you want to exterminate members of a group simply because they are a member of that group, that should be specifically recognized. And he coined the term genocide and then managed to convince the allies and then, yeah, the allies at the time and the United Nations to enshrine it into a convention in 1948, which I say now 152 countries have signed on to. But it was 40 years before the first conviction of genocide happened, and that was in the Rwandan context in 1998, Akayez, who was found guilty of genocide. And as you, as we've mentioned, how, I mean, the end of sentence was life, life imprisonment. But you are always talking about a measure of justice. And when you're talking about victimization on any scale, even when I was a prosecutor, it's one of the national prosecutor in Montreal, the first year soon you learn is that, again, you need to do your job as best as you can. And then hopefully this will help heal the person or in this case, the nation. But it's a small part of it. And it's a certain measure of justice. Well, I say, yeah, when you use the term measure of justice, it's optimistic in the sense that it's not exactly what a prosecutor would want or feel is appropriate. And it's not exactly what the world would want or feel is appropriate. It's often less than that. How can you punish one individual for the death of 6 million? Or in the case of the Rwanda, you know, five, was it 5,000 per day? 500,000? There's numbers vary, but most people agree on 500,000 for the 90 days. Yeah. Yeah. So I mean, that's, you know, it's hard to imagine an appropriate punishment with that dead and died horribly. And he's still alive with the possibility of, you know, having a life, getting out of jail even. And so, you know, it's hard to feel that the measure is what I want to call it biblical because it never is quite biblical, is it? Well, leaving the religious notion aside, well, actually no, you know what? I'll come back to that because it's straight to say nothing is perfect. But as I said, what you're doing, it's like your national system in the US or mine in Canada, right? It plays a part in the society and how it wants to define itself. And hopefully in transitional justice, it is helping rebuild our society towards something better that will certainly prevent it from happening again. That's your hope. Now, of course, you can believe that there will be also measure other measures of justice in the other world. But what I found interesting, you have to be, you have to keep in mind, again, the humility of what you're doing and the limit of it. And I found interesting in Cambodia. It was very interesting from the very beginning. We talked to survivors at the beginning of Tall Slaying, S21, which was the center, the torture center, where about 20,000 people were tortured and killed. And there were seven survivors, I think at the time. And we talked to some of them. And from the beginning, most of them, and actually most Khmer of that who lived through that period, were not seeking retributive justice. We're not wanting these individuals that were prosecuting. Well, nothing to them directly, because they were far remote. Most of them, except for one, maybe. They wanted and they would have been satisfied with an apology. It contrite sincere apology. And that, from my understanding, and I may be wrong, but that flowed from the Buddhist belief of atoning and how that is sufficient, that equals justice. It's not the same in other cultures. It's not the same in other eras. It's not the same in other circumstances. But there has to be accountability. It can't be perfect, because nothing is. But there has to be accountability if you want to hope for better. Well, accountability sounds like punishment to me. And so, let me just give you the four corners of my thinking on it and see what you say. 40 years is a long time. A lot of these really horrendous crimes took a long time. And we talked about that before the show and how long it takes to do a proper job as the prosecutor of war crimes and genocide and the like. One of the purposes of punishment is to punish. Another purpose is to deter others from doing it also. And in the time that you have practiced in the time since Cambodia, in the time since the Holocaust, one wonders whether the steps that have been taken, the measures that have been meted out, actually deterred others from likewise committing genocide and war crimes. And you could make the case that justice delayed is justice denied. You could make the case that you're not going to deter anybody until you actually come to a bottom line punishment. What do you say to that? Well, I'm sure there's a bottom line punishment you're referring to. But again, it's the same as having, as far as I know, there is no culture, no country certainly that doesn't have a system of justice as part of its society, right? It serves a purpose. It's not perfect. But it serves a purpose. And among other things, like I said, it helps define what society, what that society is and what it hopes to achieve, right? It's the same with mass crimes. I agree with you. And I think most prosecutors would agree that it's the element of deterrence is you are contributing to that element of deterrence, but only, again, as part of a larger picture, right? It starts with your parent teaching you not to steal something, right? And then it ends up maybe with the police officer arresting you for stealing. There's a whole gamut there that goes in what happens. And so again, that system of justice is only part of the answer. But what I found, I think what is important, I think, especially in international criminal law and the prosecution of mass atrocities is that generally speaking, the priority generally is to go against the architects of these conflicts. And you know why? Because you will always find somebody to wield a machete or pull a trigger. There will always be some. But somebody who has the wherewithal to design something like this and to make it happen, those are few and far between. And being able to show that there will be accountability for that type of people, I believe has some impact and is certainly worthwhile to try and pursue. Doesn't mean that, again, the small fishes need to get away. No, not at all. And interesting, again, an example in Rwanda where hundreds of thousands of small fishes, as they said, were judged by their own peers in formal courts sitting on the grass literally, which is the Kachacha concept, which literally means sitting on the grass. Everybody has to account for their actions. But if you're going to try and contribute to prevention of such mass atrocities, then I think prosecuting those most responsible is certainly important and can help. It's like we have to keep up with it. There's more people in the world. Seems like there's been a lot of mass atrocities. Or call it just mass crimes. You know, the American insurrection, January 6th, that was a mass crime. The protest in Brasilia two weeks ago, that was also a mass crime. It's not a genocide, certainly. It's not human rights, but it's a mass crime and you have to deal with it. And your system of justice has to be able to reach it and provide the deterrence so that it doesn't happen again and again. I suggest to you that in our world, the world in which you and I have lived for the past several decades, the number of mass crimes has gone up. And so we need a system that will hopefully deter this going forward. So I ask you this question, Robert, as a prosecutor who has spent his life in dedication to dealing with mass crimes, mass crimes against nature, against human rights and atrocities. What would you do to improve, to change the system, to make it more effective, to make it more likely to deter future expressions of mass crime, mass atrocities? Well, mass crimes in my in my field, mass crimes are defined by the number of victims and not the number of participants. So I would differ on your take on on both the January 6th and Brazil. But interestingly enough, from again, I might be wrong, but from what I've read, and if you look back historically in the last 2000 years, we live actually in an era that's probably the safest and less violent than the human experience has ever been through. What has changed, obviously, is the means, which have given even a single evangelist a lot more power to commit atrocities. And we have the information of it that is so widespread and that is so, you know, ambivalent. That's not a word. But it's what we know about what's being committed, not necessarily what's being committed. So human experience is a work in progress, right? And I think the context will always be political, will always depend on the will of the people, making sure that their leaders abide by it. I think all of us want to live in peace, all of us want to have a future and one for our children. And certainly, I think, hopefully, even though maybe the last 10 years or so have been a little bit the dip in that wave, I think it is still progressing towards a better world and towards more accountability for these types of crimes. If that's the case, then yeah, we have a hope of deterring and eventually, you know, again, leaving a better world for our kids. Yeah, well, that would be wonderful. You know, we have a daily news thread that reports on the emergence of autocracies around the world. And I suppose you could say, I'm interested in your thought on this, so that autocracies are more likely to do mass crimes, atrocities. At the same time, you know, this leads to the proposition that a person who is a prosecutor of atrocities may be able to predict where and when they are more likely to happen, looking forward. Is it true to you? You think along those lines, gee whiz, we have an autocracy. Gee whiz, you know, the batons and the gas are coming out, and they're changing rubber bullets to real ones. And before you know it, there are people dead in the street, what have you. And there's no control over the people who have the force and there's no control over their violence. Can't you predict, do you predict, de facto, do you predict in your perception of the way the world works, where atrocities are more likely to happen or less? Germany 1930s was a democracy, right? But there is actually a recipe for genocide. There are seven elements which needs to happen for genocide to happen. No countries immune, I know that because I've worked in all kinds of different countries where these things have happened. No country, no political system is immune. But obviously autocracies need violence and need an enemy to use to stay in power. They need both of these things. So obviously, once you've reached that point, once from, if you started a democracy, once you've reached that point, you are already very much closer to mass atrocities being likely. So you mentioned before that this convention, 1940, I think it was about genocide, it took the US 40 years to get around to it, which is, you know, that's like the Kyoto climate change convention, the same thing, takes us a while. It has a trigger mechanism. And if, for example, you find that genocide taken place in a given country or society, that it triggers some kind of obligation on the part of the members to the convention. What does it trigger? What are they supposed to do? And has that been successful? Do they do what they're supposed to do? Well, again, you know, it's like a marriage contract. If you can sign it, it doesn't mean you're going to be faithful. It doesn't mean so. And if you see some of the worst regimes in history have had the most brilliant human rights oriented constitutions on paper. So it is worth what the political will to enforce it is worth. And indeed, it does trigger an obligation on the contracting parties to prevent and to punish. But you are talking about a political decision, which means do I, for example, intervene in another country with my armed forces to stop a genocide happening? We've seen, we are seeing in Syria, the lack of or a tragic lack of cohesion and intervention to prevent what has happened in Syria and in other countries. So it's always ultimately about, as I said, the leaders making the decisions that they think their people will either accept or ignore or or what, and acting on their obligations. But, you know, 152 countries is not the whole world. So there's a lot of countries who have not, who have chosen not to sign on to this convention for whatever reason, does not mean that they are either going to commit or won't stop a genocide. But, you know, it's still a very important first step that they've decided not to take. Yeah, it's a moral statement. And making the moral statement has its own deterrent effect, doesn't it? Yeah, of course. And what that's what the law is, right? It is an expression of who you are as a society. It's what you don't, what you prevent, what you punish, what you accept, and it's helped defines who you are. So if we're talking about the political, you know, an international political system, certainly conventions to which your partner help you define what you think you are. Well, you've been everywhere and done everything. I'm very impressed and awe inspired by your career. And I have a couple of questions I want to ask you about that. I mean, so we have, we have Sudan and the Congo, we have Rwanda and to some extent Rwanda is still not a very safe place. We have, I've talked to people who won't go back there, feel that they're in jeopardy. Oh, in that sense, in that sense, in that sense, there are, okay, sorry, yes, go ahead. And then, you know, Latin America, Latin America was never stable since the Monroe Doctrine. And it isn't, certainly it isn't stable now, it could be. And that, you know, from an aspirational point of view, you hope that some days soon it will be, but it isn't all that stable. And democracy defined different ways and it lasts for different periods of time. So we have hotspots, and you mentioned the Middle East, of course, dangerous place, and the Rohingya, you know, in Southeast Asia, these are horrible things. But it seems to me that right now, Ukraine is at the top of the priority, simply because of the number of the relentless killing of civilians. And I wonder where that fits, because there's so much going on, and somebody like you would follow it everywhere. And I don't know if you lose sleep over, but we collectively, the human race, we should be losing sleep over this. This should not be happening. And yet it is happening. And, you know, here on Think Tech, we always ask the question, what can I do? What should I do? Everyone has to do something. Do we all have to be a Robert Petit? Do we all have to study law and genocide and go to various distant places in the universe and participate in a process that will deter further genocide? What can we do? What do you suggest to somebody who's young and idealistic? I would suggest help build your own society to be one where human rights are respected and a priority for their own citizens. And that will reflect in its foreign policy, and that will have an influence there for worldwide. It starts at home. It starts with building countries that do respect, not only respect, but honor human rights for themselves and then for others as a right, but as also an obligation. It starts at home. You don't need to go abroad. You don't need to, you know, you don't need to do anything, but make sure that around you and your society itself is an example of what human race can be. And then hopefully that's how you build, as I said, an ecosystem where this is a principle. I'm not sure it's true anymore, but they used to say all politics is local. All human rights is local too. All decency is local. I agree. So where does this go? How do you see your career unfolding? How do you see the obligations of somebody in your position, your experience, your expertise? Where does it go for you? Is this a lifelong mission that will never stop for you? I've always said that after being a parent, this is the greatest privilege I've had of being able to bring some justice to crimes, victims, and help heal them in society now with this type of work. So, you know, I've retired, for example, from the OJ, but I'm still in the mix in other functions. And yeah, as long as I can, I think I will. And as I said, to me, it's a privilege. It's not an obligation. We all ought to do something. And I envy you, the privilege that you have and appreciate. Clearly, one other thing is it seems to me, although, you know, politics and human rights is local in many ways, what about the United Nations? The United Nations has certain impediments, if you will, because of the Security Council rules, you know, where China violates human rights on a regular basis, and certainly Russia does. And they have the right of veto. So the question is, what do we need in the way of an international organization? I understand this relationship, but it's not a direct relationship between the UN and the International Court of Criminal Justice. But what can we do to have an international organization that is unimpeded? Well, if you look at the history of the United Nations, I mean, it came out of a sort of conflict, and it was professing to help build a better world with certain ideals. And I think for all its weaknesses, I think the United Nations is still a central part of this rules-based world order that needs to be sometimes built, sometimes rebuilt, sometimes upheld. But certainly, I think the United Nations is a central part of this. And it wasn't for it. If you don't have a forum where you can debate things, then you resort to violence. Or if you have nowhere to put the glare on what you're doing, then you can get away with it. So the United Nations, I think, is an important part of this. But again, it comes down to the willingness of its members. The United Nations doesn't exist out of thin air. It is the expression of those who are members of it and those who control it. So if the political little world is there to make it work and to have it as a profound impact as it can have, which I think it does, then it's up to them. But as we've seen over the last decades, there's been changes in the political orders of the world. And it's reflected in the trials and tribulations of the UN, but it is an essential part. Every forum that you can talk instead of fight, it's hopeful. And it makes moral statements. Antonio Gutierrez can make a statement, sort of like Joe Biden can make a presidential proclamation. He may not be able to get Congress to go along with him, but he can make a statement of that leadership so the Secretary General can also engage in leadership. And that's really important. What about organizations like Project Expedite Justice? Where do they fit in all of this? Your role, exactly what it is, what is it and why, what do you think their future in this particular area of human activity is? Well, I'm advising on a Ukraine on the project that they have in Ukraine. And Project Expedite Justice, as hundreds of thousands of others NGOs of different sizes and different focus, but in this particular field, and I've seen them evolve since the 90s, they can have a tremendous impact locally on whatever they focus on locally or nationally or even internationally. For example, the court in Sierra Leone where I worked, the tribunal, would never have been created if it wasn't for an organization called No Peace Without Justice that basically pushed and pushed to have some accountability for the crimes that had been committed in the civil war. Project Expedite Justice as a mandate where it devotes itself to helping bring accountability and empowering victims, and it as well as a new organization that has that mandate. Again, it's a brick in the wall. It helps build this society, this rules-based world order that we would all wish to live in, and it has an essential role in it. If we want a world order like that, we have to contribute in some way to help it, whatever way that may be. Yeah, and that's exactly what they do. Thank you, Robert. That's very nice to talk to you. There are many other subjects and questions I would like to ask you about, but we're out of time. Robert Petit from Ottawa, thank you so much for your work, your service and humanity, and for this discussion. Well, thank you very much. Thank you for having me. I appreciate it. Thank you. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, and LinkedIn, and donate to us at thinktechhawaii.com. Mahalo.