 Welcome back to ThinkDec. This is Transitional Justice at 4 p.m. on a given Monday, and today we're talking about reparations, reparations for human rights abuses with Gerald Gajima. He joins us from only Maryland. What country are you from, Gerald? I'm from Rwanda. Okay. They had a genocide there, I'm sure. And there were plenty of human rights abuses, war crimes there, back, what, 20 years ago. And genocide. Yes. So today we're gonna talk about reparations in terms of human rights abuses, genocide and war crimes in general. Can you give us a background on how that works? In other words, if I or my organization decide that there have been war crimes and atrocities, and I want to push for reparations, what do I do? A little bit of background. The idea that perpetrators of atrocity can be held accountable for their abuses, including being required to pay reparations is new. Historically, countries were not held accountable for crimes against their own people. They could treat their own people the way they wanted. All they had to do is to treat foreigners as right because you had to treat foreigners as right so that you could avoid wars with other countries. But over the last 100 years, the law has developed and the states now have an obligation, not only to respect the rights of their own people, but also to prevent violations. And the way it happens, you can go through national systems, but in many cases, if a government is the one that is responsible for human rights violations, it does not have will to hold the perpetrators accountable. And that's why we now have regional and international courts to hold people to justice when they commit atrocity. So we now have a permanent international criminal court. There are countries that are members. And if any member of a country has a complaint, that country can submit a complaint to the court. And the Security Council of the United Nations can also refer cases to the court. And there are also regional human rights courts for each of the continents. Yeah, so let me let me ask you though, the Security Council, we've seen them operate last week with their hands tied because Russia is not only a member, a veto member, but a chair of Security Council. And that would suggest to some people that the United Nations is seriously handicapped in terms of handling these cases. So is there a way to proceed against war crimes atrocities, human rights violations, genocides, without referring them through United Nations? The only way that would happen is if the states, if a complaint is lodged by a state that is a party to the Rome Treaty. If a country is not a party to the Rome Treaty, then it cannot refer a situation to the court. So who's a party, who's not a party to the Rome Treaty? Many countries in Africa, in Asia, in Europe, parties, but the major powers, including the United States, anyway, it's not, it's China, it's Russia, and it's the United States among the major powers that are not members. So I know there's a lot to discuss about, you know, reparations. And, you know, there are discussions really all the time about reparations for things that happened historically. Slavery, for example, in this country, the internment of the Japanese in internment camps during World War II. And elsewhere in the world, in Africa, Latin America, and Asia, there have been war crimes and attempts to achieve reparations. Some have succeeded. Some have succeeded in a kind of minor way instead of a major way. And some have not succeeded. And it's always a torturous route legally to find some jurisdiction that will help you. So I would like to direct our conversation today, Gerald, to the possibility of proceeding against Russia for attacking and killing and injuring and disrupting people in Ukraine. Because it seems to me that what Russia is doing with an unjustified invasion with weapons against civilians, blowing up civilian buildings, shooting and killing civilians in the street, those are war crimes. And I'd like to know if you agree that they are. And I'd like to know your thoughts about what can be done within the context of treating them as war crimes. I agree with you that they are definitely war crimes. And there may be crimes against humanity as well. The Security Council is not likely to refer the situation to the International Criminal Court. In any event, not only does Russia have a veto power over the decisions of the Security Council, but the United Nations has no police. That was visible in Rwanda, wasn't it? All the blue helmets left town, I remember that. So there is no way of enforcing decisions of the Security Council of any court, even if a court will hold Putin and his associates accountable. So prospects for the International Criminal Court holding Putin and his associates accountable are very remote. There are certain situations where they can be held accountable. Many countries, or there are countries that have laws that permit them to try people who commit human rights violations in other countries. It's called the principle of universal jurisdiction. Well, that's what happened in Germany a few weeks ago. Yes. With the Syrian general who was tried and convicted there. Yes. That's really an important development in the law, isn't it? Yes, it is. There has been a pushback against it. But it's our way to get a remedy. But the Russians who are waging war against Ukraine today would have to travel outside Russia to be held accountable. If they stay in their own country, there is literal prospect that they will be held liable in a criminal court. Yeah, that was so in the Syrian case. If that general stayed in Syria, he would never have been held accountable. But that will never would never try his own general. But when they got him in Germany, then it could go somewhere. And I like to mention also, we talked before the show about, about Banco Nacional de Paris, which was involved in war crimes in East Africa, and they were funding projects that were found to be war crimes. And that the NGOs involved took them to court in France, where BNP has its headquarters and billions upon billions and trillions of dollars. BNP, one of the biggest banks in the world. And they are prosecuting BNP for war crimes. And they're proceeding against, I guess, some individual officers, but also the funds on deposit in France. So if Russia had funds on deposit in France, and I'm sure they do, if the people involved in Russia had funds on deposit in France, and I'm sure they do, they would be exposed to the same kind of claim, wouldn't it? Yes, those are civil cases for civil remedies. And even in the U.S., we have a legislation called the Foreign Tort Act that allows victims who come to know that perpetrators of atrocities have resources in this country, bank accounts, you can bring a case in the U.S. against a perpetrator and seek remedies to have the assets seized distributed to victims. So it can happen in many other countries as well. I recall, however, that the U.S. is not the best venue for this. The Foreign Tort Claims Act does not allow recovery by the individual victims, but it goes to a special fund in the United States. And it is ostensibly to be used for sort of generic purposes instead of compensating the victims or their families. Am I right? No, I think there are avenues of redress for individual victims as well. Oh, good. So then I suppose following that, that claims could be made in this country against Russian individuals' assets in the same way under the Federal Foreign Tort Claims Act. Victims could have relief in U.S. courts, in federal courts. Civil remedies, yes. Civil remedies. Well, you know, the thing about the civil remedy, if there's one person, one claim, one victim, doesn't mean that much. It could mean a lot to that person. It could mean a recovery of millions for that person. But it's not nearly as overwhelming as claims by the hundreds or the thousands. And so if there were organizations that would bring claims on behalf of these, you know, Ukrainian people who've been killed, wounded, disrupted in their lives, made to be refugees. I mean, all the things that follow an invasion, especially an invasion where the Russians don't seem to care who they shoot, who they shoot. In that case, it wouldn't be one individual, one victim, one case. It would be hundreds or thousands of cases. And the amount at stake would be enormous. And so even if it's a civil case rather than a criminal case, seems to me that that would be a tremendous deterrent against any repetition of this kind of unjustified invasion. No. Would it be a welcome redress for victims? Yes. Would it be a deterrent? We don't know. The world has said time and again, never again. But we see the same atrocities repeated time and again. The things Putin and he's really putting is doing irational. No one understands the reasons why he's doing what he's doing. And the reason that he does not see the grave consequences on his country and on Ukraine as well. And I doubt that he has sleepless nights when he thinks about being held accountable. The problem with dictators is that they begin to think that they are good. They are not accountable to anyone. They even seem to believe that they will live forever. So I don't think Putin thinks that he will be held accountable. And if you don't fear being held accountable, then the prospect of justice is not a deterrent. It might be for other countries though. Because, you know, the liberal world, world order established by the United Nations. The United Nations, back in 1945 and 46, stood for the proposition that you don't invade your neighbor. You don't take things because you simply want them. And we've lost that with the invasion of Ukraine. Here's a guy who just decided he wanted it. So he took it or tried. And now if we can make a statement about accountability, if it's just a civil remedy, perhaps there'll be other countries that will think twice before they do that. I want to ask you about something else. One of the issues about these international court of criminal justice cases, and for that matter, the case in Paris against BNP, those cases require evidence. It requires people with project expedite justice and other NGOs to painstakingly obtain, sometimes very hard to do, documentary evidence, witnesses, witness statements, and then take that evidence to the court. I mean, this was a problem that Ben Forenz had when he prosecuted the Nazis at Nuremberg years ago. He had to have evidence. And just because you've heard it here, it doesn't really get you a conviction or a result. But what's interesting here, and like you thought about it, Cheryl, is that we have a war that's going on real time. You can walk over to your TV in Maryland and turn it on. And you will be able to see things happening in Ukraine right now, live. And you could record that and you can get videos all over the internet, telephone calls, videos, evidence of what is going on, photographs, all day long about what is going on. This is different, isn't it? The availability of evidence has never been like this before. Absolutely. And it's not just in Russia and Ukraine. It's also like we do work in Sudan where the military took power about three months ago. But there are people documenting with their phones, other protests, gathering evidence that could be used in court in days to come. So yes, it's not just the media that is documenting these atrocities. It's private people as well, using their phones, gathering evidence of crimes that Russia is committing. So yes, there are immense opportunities for gathering evidence that would not have been available in the past. So really, I think that that is actually clear. And it's maybe it's a lesson for all of us everywhere to know that the technology changes the calculus about war crimes, about evidence, about prosecutions and civil actions and the like. But I guess where I'm really going on this and where I'd like to ask you about is we know that Project Expedite Justice, it has friends, it has comparable organizations that help it do its work, gather evidence and the like, take the evidence to appropriate prosecutors and tribunals and whatever, you know, organizations that were all who would carry this forward. But it also seems to me that that's, that's hard work, still hard work. And it's hard work to get a prosecutor to give in country. And it's hard to get work to get the country to, you know, to allow that prosecution or civil action. The case of BNP is, you know, so kind of an exception. But most countries, it's hard to get them to do something. And my question is, it's really two parts. One is the NGOs that do this, are there enough of them? What's the dynamic? Are they increasing in number? Are they increasing in their appeal to young lawyers, for example, who would like to participate in a movement to deal with atrocities by this process and countries? Countries are there countries like France and for that matter like Germany, who will get on the bandwagon and allow these actions to proceed? Or is that a diplomatic geopolitical problem? Oh, first of all, about civil society organizations walking to document human rights violations. I'll talk about what I know best because of what we work on in Sudan. Yes, that large numbers of people, especially young people, boys and girls, who are immensely dictated to recording human rights violations that are being committed by these dictatorial regimes. They are making use of technology. They are using their own resources to document these atrocities. So the numbers are large. They are resilient. They are hardworking. They are very educated and they are gathering evidence that could be used to achieve justice in the future. And it's not just in Sudan. It's many other countries also that are going through periods of repression and violence. I have no doubt that there are people in Ukraine right now or even in Russia documenting what is happening and hoping that it can be used at some time to come. Are there many countries that will be willing to open their courts, to victims, to claim remedies? Yes. I don't think there are many, but there are some. I think countries, for example, that are protected by nature, that do not have to fear Russia's wrath, or would be able to acknowledge and to receive and to process claims by victims if Russia had resources in those countries. As for other countries outside the NATO umbrella, I doubt that there are many countries that are going to be very eager to make enemies with Putin. And let's not forget that a very large number of countries in the world are also autocracies. They are not much different from Putin. So given that they themselves are dictators, they are not likely to really make a big issue of Putin's crimes in Ukraine. So yes, there are countries essentially in North American, Western Europe, where claims of victims could be admissible in courts and processed and where remedies could be available. Outside North America and Western Europe, I would be reluctant to hazard a guess as to how many countries will be willing to cause offense to Putin. Well, this is an area of international law that is still becoming, still developing. And you know, every time you think about it, you think, gee whiz, wouldn't it be wonderful if there was a treaty of Rome that was more widespread, that people, everyone would sign up on it, or and or that the United Nations would have greater, a greater ability to act to prevent. And I say prevention because I think that's the immediate problem here. There is sure, you know, reparations are important for compensation and retribution, but prevention is, I think what we need right now these days, is not having dictators cross borders and violate the sovereignty of their neighbors and do what Putin is doing. So is there a way, do you see a way, Gerald, for the United Nations to reform itself, a way for the United Nations to become what people expected to be, what they expected it to be in 1945? Could the United Nations be more accountable, more democratic? Yes. Is it likely to reform sufficiently to satisfy what we feel should be done? No, because it's not just Russia, it's other countries as well. It's the countries that have immense power, that have nuclear weapons, that are more likely to be, to interfere in the affairs of other countries. We are basically talking about the US, about China and about Russia, and they will never give up their veto power. I mean, even in this country, the US Senate will never agree to any international treaty that seeks to hold American soldiers for crimes they may commit in other countries. And if America can't do it, why would Russia want to do it, or why would China wish to do it? At least in this country, we know that if soldiers, American soldiers committed crimes, there is a possibility they could be held accountable in this country and they could have fair trials. I have no doubt that China and Russia would never agree to hold, have their soldiers held accountable, and they would never hold fair trials in their own country. So it's unlikely that those three major powers, we ever agreed to a reform of the UN, that would hold everyone accountable for their actions. You spoke about these young people, a generation of young people, vital, idealistic, altruistic, and it's encouraging to hear about that, because I think they are our future, our global future is what I think. And they're all over, really. Some of them are more Akamai, that's a Hawaiian word, meaning aware of this and others. And my last area I want to ask you about is the power of media, the power of public opinion. If I say, look, Russia is bad, they did bad things here. We can't necessarily hold them accountable through the United Nations, through the Security Council or the International Court of Criminal Justice, what have you. But we can be united in treating them as an outcast rogue nation. And we, all these young people can say, I'm never going to buy anything from Russia. I am never going to travel to Russia. I'm going to boycott Russia in every way I can because they're a rogue nation. And they're going to have to reform before me and all my millions of young friends will treat them as a legitimate player on the world stage. Do you think there's any possibility that that will happen? And if it does, would it work? Oh, by the way, let's not forget that opposition to Putin's war in Ukraine does exist in Russia as well. Yes. There are young people, young and old people in Russia who are standing up and getting counted, who are making their stand known, who are condemning the coup and the suffering that Putin is visiting upon innocent people in Ukraine. So yes, the media can play a very important role in holding Putin and his associates accountable in a sense, not in a criminal sense, but in making them pay a price. They are already paying a price because of the different sanctions that various countries have imposed. Unfortunately, some of the sanctions are also hurting innocent people, innocent Russians. So yes, there is a role for the media to support this movement to hold tyrants accountable. Yeah, well good. At least it's an option. You know, there have been various calls for action from people on the streets of Kiev and elsewhere in Ukraine, calling for the world to do what they can, and the action they call for goes anywhere from trying to send money, which is hard because they closed down Swift now. It's hard to send money and to prayer. I've seen a number of these calls calling for prayer. There have to be practical, effective public actions that the Ukrainians can call for that will help the cause and make the point. I agree with you that the sanctions, first of all, as you say, the sanctions may hurt innocent Russians. The sanctions may not be all that effective in some way. And the sanctions are going to be subject to political and geopolitical relations and loyalties and economics. So they may not last that long. And this is really all a matter of remembering, isn't it, we cannot forget, but whenever action we resolve to take, we must remember. Or do you think that people will forget this all in six months. What we all need to agree is that this is not a war against Russia, a rather against Ukraine. And it's not just there was to fight. We are all against all of us against our values, and it should. The actions that Putin is doing should motivate everyone of us to ask ourselves what we can do to make sure that something like this never happens again. So we should all be challenged to see what we can do to make the world a better place for tomorrow. So how will we know that the media, the younger generation, possible boycott, the, the approbation that has been visited upon Russia. How will we know if it works. I suppose if Putin pulls his troops out, that'll be dispositive but that will probably not happen. Any time soon. But how will we know that there's been a success in establishing the principle of never again. I don't think that to shall ever have a world where human rights violations will never happen. It's, it's a question of moving in the right direction. I think that in spite of, you know, the violence that we've seen in our, in our times, the world is a much better place than it was 60 70 years ago. So we are making progress. And he's now considered a rogue. And most people blame him because certain values have been entrenched in the international system. How shall we know that the message is getting across. I think one, one way in many countries when dictators behave like Putin is doing. Sometimes overreach and their own people turn against them. So, I think that the big clear is lesson that we could have that the message that actions like this should never be contemplated would be if the Russian generals or if the Russian people themselves rose up and hosted Putin that would be my biggest dream. And in creating that. I think there should be continued effort to hold Russia to account to continue to treat it as a pariah and to make sure that they know that there is a price to pay for actions like Putin is doing in Ukraine. I would be satisfied if he may still be in power but if he's an outcast and he, his brains cannot fly his banks cannot function. I would be happy that we've made progress. It's something that we have to watch every single day Gerald every single day. It's a moving target, and just as it could go the way you and I would like to see it go with his ouster, it could go the other way too. And so it's a time of a tipping point if you will, and a time of enormous possibilities on both sides of the coin. Anyway, thank you Gerald. Thank you very much project justice. Nice. Nice to talk to you. It's been a very, very good discussion. And I greatly appreciate you coming on the show. Thank you.