 Okay, we're back we're live here on transitional justice on a given Monday for I'm J Fidel this is think take away and our guest is in Maryland now, but he's from Rwanda in Africa. His name is Gerald Gajima. Welcome to the show Gerald. Thank you so much, Jay. So this is a very interesting topic. It's, it's, it's all about lessons from UN tribunals. I'd like to take a moment and dwell on two factors that are intertwined here. One is the United Nations. You know, I like to think of the United Nations as having emerged from the adversity of World War two, where everybody was on the same, the allies, if you will, were on the same page there in 1945, 46, 47, and they were of the same mind trying to make a better world. Okay, that that was simple but then, since then the United Nations has changed. So as the world. The United Nations is now rampant with geopolitical competitions, politics, and there are certain countries want to stop all progress at the United Nations and that has undermined its, its ability to get good outcomes. Am I right in that regard. You're very right. So your question is how is the United Nations doing. The United Nations does honor as much good as the major powers wanted to do. So, like during the Trump administration, he was not really interested in having strong multilateral institutions. The end did not have the support it needed to do whatever it would have wanted this administration is more interested in working more effectively through international institutions. So this presents a better opportunity for the international community to do good when it's necessary but on issues relating to human rights. There are major powers in the United Nations to countries like China like Russia, which are never really interested in pushing for strong accountability on matters relating to human rights. And the UN can only do what countries that are interested in human rights are able to do after consultations with and negotiations with those other powers that don't really want to place emphasis on human rights. The United Nations is on our tool. And it's a tool of compromise. And that makes it a particular weak institution. Yeah, problematic. The other the other dynamic I wanted to ask you about is is atrocities and violations of human rights. Now it could be that my generation wasn't really watching. We, you know, went through school and grew up and started to read the newspaper and so forth. And, and we, we didn't really have a handle on the dynamic of atrocities and violations of human rights. But it just seems to me that in the past, say, 10 years, maybe 20. Since the genocide in Wanda. We've had increasing amounts of atrocities and violations of human rights. I don't, I don't know if you saw it but there's a movie by I way way called human clothe. No, I'm fortunate to know. It makes him. He's an artist and a dissident in China, actually out of China right now. And he helps us understand that there are displacement camps around the world, which holds something in the order of 65 million people who don't have a country a life, a citizenship, a possibility of, of any quality of life, and that number is increasing. And I take it from that from his examination and that movie. Maybe to over generalize it but to generalize it and ask you whether we have increasing amounts these days of human rights violations and atrocities, including those in China and Russia. The atrocity is as old as man. So they have always been atrocities horrendous atrocities in history. Traditionally, international law did not concern itself with how a country treated its own people. Massacre half of your population, so long as you did not kill foreigners, that would be okay with other countries. Now the, the development of the field of human rights, beginning in the last 200 years has slowly brought up awareness about the need to respect human life. But it was not really until you know the whole the horrors of the Holocaust, that it became imperative for the international community to at least take a stand and say you know atrocity is not acceptable. Never again should it happen and then since 1948. The genocide convention was passed. A lot of other treaties were also adopted. And in theory, atrocity became illegal and acceptable. But because of the competition between wall powers, the East and the West. That body of law that have held human rights that criminalized atrocity existed only on paper. So, although it was not acceptable, there was no way to hold people accountable. It's only since the 1990s with the establishment of the Tribunal for the former Yugoslavia. That the effort to hold people accountable for atrocity in practice became very real. And Rwanda benefited when the genocide happened to so horrendous that the international community could not after establishing a Tribunal for Yugoslavia, they could not but have one for Rwanda as well. And what made the establishment of the UN Tribunals possible is the end of the Cold War. There was a better atmosphere for international cooperation on dealing with atrocity. So there is no increase in atrocity. There is just more awareness about atrocity and a slightly better chance of holding people accountable today than we had in the past. So the mechanism that we think of is the United Nations and the International Criminal Court of Justice, which is associated with the United Nations but how effective has that been. Here's my dynamic question again, Gerald. Is it becoming more effective or is it losing its effect, the ability to achieve acceptable outcomes in its operations, in its determinations, in its investigations? How effective? The UN Tribunals, the Tribunal for the former Yugoslavia and the Tribunal for Rwanda were really a pilot project for the International Criminal Court. We have to understand that these justice processes are really political processes. The International Criminal Tribunals are only as effective as the major powers want them to be. So for example, for the Tribunal in Rwanda, a lot of people who committed the genocide run away after they lost the war. Other countries, the people where they were refugees would not be willing to hand them over. So every single person who surrendered to the Tribunal or surrendered because major countries, especially the US, pressed the countries where they were refugees to hand them over. So there was political will or the part of the US to hold perpetrators of the genocide accountable. On the other hand, there were atrocities that were committed by the victorious government of the Rwanda government. The US did not want members of that government to be held accountable. So what happened is that we have only what you would call victor's justice, the people who lost the war were held accountable, but the victors were not held accountable. And the impact that has had is that the justice that the tribunal, the Rwanda tribunal has rendered. So bringing people together instead of promoting reconciliation, it has been one thing that divides even further. With regard to the the Yugoslav Tribunal, that has been more effective in bringing all parties to the conflict to account. I would say that the record is not uniform in some places, there has been more success than failure. In some places, they've been more successful. And in some places they've not been successful. Now the UN tribunals of course have closed their shops. The current institution is the International Criminal Court. The big problem with the International Criminal Court is that look at the conflicts that take place today. Whether Syria or Iraq or Yemen or Libya, those are not just national conflicts. They are international conflicts in which major powers, the United States, Russia, members of NATO, all the Middle Eastern countries, Iran, all of them are involved. So the International Criminal Court to date is only really able to bring to justice crimes that are committed by small fish, you know, warlords in some countries. But it's never able to bring to justice crimes that are committed by the militaries of the major countries. All the parties to conflict they support. So for example, if you look at the war in Syria, they are all these Syrian groups. They have benefactors in the major countries in the Middle East and across the world. But we do not expect justice for those crimes because justice through international criminal justice is a political process. The International Criminal Court is only able to do what the major powers wanted to do. And they would never be able for, they would never be a situation where, for example, you could hold Iran accountable or Israel or Turkey or the United States or Russia for supporting groups that commit human rights abuses in Syria. That's not the way it is. So it's a justice system that is only effective against weak parties, but is not effective against the big powers, or the groups that they support in conflicts across the world. Very troublesome, Gerard. So what what what I what I want to ask you though is how this works. In other words, suppose I'm a judge or an investigator or a prosecutor. My job is to investigate, prosecute, and punish people who have committed atrocities. And I decide that, say Russia, which is holding a no volley against his will who is, it's an outrage what they are doing. And I say that there's an atrocity going on there. Or I look at China, and I look at, or is it Xinjiang in the West with the Uighurs. And I say there's there's an atrocity going on there, or other places in China where there are retraining camps. And those are actually torture camps. And I say there's an atrocity so I say I say to my investigator, maybe it's project expedite justice. So would you please investigate that. Or I say to my prosecutor would you please prosecute that, or I have investigated and activated a prosecutor and I go to the court. I want you to hold Vladimir Putin responsible for what's happening to Navalny, and so forth in China, or for that matter in the US. What happens to block that prosecution. What does China or Russia, or for that matter the United States do in the context of the management of the United Nations to block that process you, you say that the big powers will be able to stop these prosecutions. How do they do it. Oh easy to start with, like, let's start with our own case in this country, the United States. Yes, government has preempted the possibility that troops could ever be held accountable for crimes committed in conflict anywhere by getting other countries what we call article 93 agreements, this is an agreement. That stipulates that we country why agree with the United States that we shall never under any circumstances, cooperate with any effort to hold the US military for any crimes they may be accused of committing in any country. So, the US I think I signed more than 100 of these agreements with other countries I recall when I, when I was in wonder the US government brought it to us we do not even discuss it. I mean you a small country you're vulnerable, you do what the US wants so we signed it, so have many other countries. So the US takes out a proactive role by signing this article 93 agreements, but the bottom line is that if a big country an important country, a powerful country wants to block an investigation they just stop cooperating with the tribunal of any international tribunal because you know, neither the International Court of Justice, nor the International Criminal Court have a police. For enforcement, they rely on the international community. The mechanism for ensuring international peace and security is the Security Council, where the five major powers have veto powers. So, you will never get the five powers to agree that action be taken against anyone of them. And all that end of these powers will have to do if they are being investigated is to just ignore it because there's no way for the courts to enforce whatever decision that it may want. But they go even further the Trump administration did actually impose sanctions against the prosecutor of the International Criminal Court. During the last administration. It's only recently that the Biden administration has lifted those sanctions. So, far from cooperating with the International Criminal Court, you actually criminalize criminalize the court and decide that you, you are treating them like criminals. It can go that bad. We have to discuss this further, Gerald. So you've been writing. You've been books and articles and studying this for some time. And perhaps you can give us a handle on how much you've been writing and what subjects you've been covering. So we can understand the depth of your thinking about this, and understand what what affirmative suggestions, you believe are worthy to solve this problem. My background, I told you I'm from Rwanda. Prior to the 1990s for genocide that I was a commercial lawyer so I was not involved in criminal justice. I only became involved in justice for the genocide because I went back to Rwanda to help the rebuilding of the country. So what happened is that, you know, during the conflict, three quarters of the Tutti community in Rwanda were killed. If there were a million people maybe three quarters of a million people perished. When catastrophe on that scale happens, you cannot do nothing. We had to do something. We have to do justice because, first of all, because the victims demanded, and they did demand it. You have to find ways of holding people accountable because you need to send out a message that these crimes are unacceptable. They should never be committed again, you have to address the question of impunity. We hope that by having justice, you can create an environment for creating a peaceful, stable society for the future. So we started having investigations, but after a while we realized that mass atrocity is not, it cannot be dealt with through the ordinary criminal justice system. So we've had accountability through processes. We had prosecutions through the courts. We had trials through traditional courts and of course we had the UN tribunals. And I was the prosecutor general of Rwanda, so I led the investigations and prosecutions of the Rwanda genocide in national courts. And I was also involved, I was the chief collaborator of the UN tribunal for the crimes of the Rwanda genocide for which they were responsible. And since living in Rwanda, I have done research and some writing on this. My PhD thesis is on this subject and that has given me the opportunity to think not only about what has happened in Rwanda but what other countries have done in reckoning with legacies of mass violence. So it's, I come to this with a background, not just about what happened in Rwanda, but about my scholarship of what happened in the former Yugoslavia where I was involved in the setting up of the national court for war crimes. And in other countries where you've also had to deal with the accounting for violence of the past. So I don't know if that answers your question. Well, that's part of it, but the other part I wanted to ask you about is, we have a, you can correct me on any of the premises that I'm articulating but we have a fair amount of atrocities going on now. It's not great public awareness, but the United Nations seems to be unable to deal with it. And the geopolitical politics and competition among the major powers, you know, makes a lot of it unreachable. Sacred cows, if you will, that nobody can touch. I'm asking you, based on your scholarship, what can be done, what should be done to correct this, because the United Nations is a function of the international community. And it certainly seems the international community has demonstrated a weakness to focus on the subject on the issue, the problem. What can the international community do? What can anyone do to make this an even playing field? Good question. Sorry, I forgot that part of your question. Do you want my honest answer? Yes. My honest answer is, I don't really see any prospect of doing the sacred cows as you call them accountable. Take Syria as an example. Basara Al-Assad is supported by Iran and Russia. Would Russia ever agree that the Security Council takes measures to refer the case of Al-Assad to the International Criminal Court? Highly unlikely. I recall that the U.S. has also had partners in the war in Syria. It's conceivable that some of those have also committed atrocities. Would the U.S. agree that the groups that it has supported their leadership be held accountable for the crimes their troops may have committed, again, unlikely. And the reason is when a state or its officials help war criminals, its own officials become liable for criminal prosecution. The former president of Liberia, Charles Taylor, is in prison, not because he committed atrocities in his own country, but because he helps groups in a neighboring country, Sierra Leone, to commit atrocities. So by the same principle, the leaders of the U.S., of France, of Russia, who have supported groups that have committed, of Turkey, of the United Arab Emirates, of Saudi Arabia, who have supported groups that have committed crimes in Syria, would be liable for criminal prosecution themselves. So I don't see any prospect of holding the sacred cows accountable. So what is my approach, since it's so difficult to hold sacred cows accountable, it's more important to work harder to prevent atrocity than to have faith in justice for crimes that have been committed. So I would wish that everyone works today to prevent conflict, to prevent atrocity, to promote greater respect for human rights before atrocities are committed, because in many cases, the prospects for justice are almost nonexistent for many of these crimes. Well, let me ask you about civil actions. If your original practice was as a commercial lawyer, you know about civil litigation. And in fact, Project Expedite Justice is involved in some civil litigation against people who violated human rights of others. One case I'm familiar with is pending right now in France, as a better venue than in the United States. But theoretically, if I can find a receptive venue and I can sue in a civil action, somebody who conducted atrocities, call it court law. It's a violation of court law in most places. It's an automobile accident, you know. It's at the civil side of criminal conduct. And so suppose I take a page out of that book and I say, I have an investigation here that shows that somebody, even a national leader, violated the rights of an individual, the human rights of an individual. And I take that person to a court in a country which has money belonging to the individual I'm suing. And I try to get a judgment against that person for a violation of rights. Wouldn't I be able to get that judgment? And how valuable is this approach in the larger landscape of trying to diminish the violations, the global violations of human rights violations? No, you're right. That's a possibility. In fact, under years law, I think it's the area's thought act. There are two pieces of legislation in the US under which it's possible to bring civil actions against perpetrators of atrocities that were committed in other countries. So if they are individuals who have committed crimes, you can bring action against them in the US, even if you don't know that they have assets in the US. The problem is that they may not have any resources in the US or in the country's way you brought the case. So it's a horror victory when you get a verdict in your own favor. People who, for example, brought suits against people who committed, who participated in the Wanda Genocide and they were awarded millions, but of course these millions were never recovered. It is very possible that there are dictators who have resources in other countries, but a lot of the people who commit atrocities in this conflict don't have bank assets in the countries where you are likely to bring these proceedings. So it's a moral victory, but it's not going to be a deterrent because they don't have the resources to lose. One other thing I wanted to ask you about is the media. In a number of places in the world, not everywhere, there is freedom of the press, and sometimes that is an appropriate way to propagate the news about human atrocities, human violations of human rights. In other places it's more difficult. But I guess in a number of places in the world, the news is distributed between nations, among nations. So if it appears, say, in France, it is likely to appear in the US and so forth. Some countries it's never going to appear at all. It will be effectively censored. In China, for example, they censor what they don't want people to know about. But my question to you is, is this a viable option to discourage atrocities, to have the media report on these things with the assistance of investigators, of credible investigators, such as PEJ, and make the world aware that a given organization, institution, or national, a nation, has been engaged in atrocities and bring the details to the public awareness to discourage the repetition of that conduct. Is this effective? And I guess the second part of my question, Carol, is the press doing a good job at that or not? Okay. So first of all, is it effective? Yes. The reason the UN tribunals were established is because of the advance in technology that made instantaneous communication possible. So every time a bomb fell on the Sarajevo market, there were journalists on the spot waiting to take the footage and distribute it instantaneously. Politicians, for example, the Clinton administration, I can say for certain, that they were never keen to do anything about the Duanda genocide. When it was happening, that was after Somaria. You remember Black Hawk? When American troops were killed and driven pulled through the streets. After Black Hawk, the US government, the Clinton administration decided they did not want anything to do with protecting the victims of the Duanda genocide. So the secretary of state during the Clinton administration told his staff, he was called Warren Christopher. He told his staff not to even refer to what was happening in Wanda as a genocide, because if you have a genocide, you're obliged to act. But there was media that was transmitting all these piles of dead bodies. So the Wanda genocide could not be ignored. Neither could the atrocities in Bosnia be ignored because of the level of technology that was being put to use. So the international community was compelled to act to set up the tribunals. Now we are in an even better situation because it's not just the big media organizations that have the resources, but any person with a camera can take footage and transmit it across the world. And dictators, perpetrators of atrocity, they care about their image. So documenting human rights violations through the media and disseminating this documentation through the media is very, very important. For example, in Sudan today, when the military took over government last month, they started a new crackdown on dissent, on opposition, on human rights defenders. So there are many people in that country who are working today to document what is happening as a way of equipping those who are doing advocacy for democracy in Sudan. So the media, I think, is doing a good job. And that's why, for example, when, like in the Sudan, when the military took over, the first thing they do is cut off access to internet because they know what harm and effective media can do to their reputation. Dictators care about their reputations too. So the media is doing a good job in disseminating information about atrocities. And it's a weapon that can be used and should be used to press people who are abusing human rights to amend their ways. One last thing I wonder if we could cover, Gerald, is the international community such as it is, including the international business community. And when you talk about Sudan, you make me think of the military coup there, the leaders of the military coup that was really terribly unfair. And it was a violation of the agreement they reached not too long ago and for the rotation of power in Sudan. And there was a certain reaction by the international community and the president Biden said he was going to withhold $700 million of funding that there was otherwise supposed to go to the military government in Sudan. But the consensus seems to be that that did not have a great effect, the withholding of that money. It hasn't been released yet and it did not have a great effect. But putting the United Nations itself aside as an organization that has become less powerful, less influential in terms of dealing with atrocities and violations of human rights. What about the international community? The community that takes its thinking, its policies from the media, from investigations in the media and says, well, we're going to try to use our soft power in Sudan or elsewhere. And we'll condemn anyone publicly, my country, not the United Nations, but my country will condemn anyone who is involved in human rights violations. And further, we will impose sanctions, we will withhold funding, we will not do business with any government that is engaged in violations. And furthermore, we will criticize any other nation that does business with them. Now, I know that you have to be very powerful to do those kinds of things like the United States has done over the years. But I wonder if the international community can be activated in a different way, a way different than the United Nations to take steps to follow on discoveries of atrocities through the media? You know, your suggestion is actually on point. It's not upholding human rights is not just something we should leave to government. It's something that civil society should occupy itself with. If you look at, for example, South Africa, one of the reasons change came to South Africa and a party came to an end is the pressure that the international community was able to master by threatening to withhold investment from South Africa by threatening to impose embargoes. And many countries were supportive of, some countries were supportive of the regime, but ultimately the apartheid regime realized that it would hurt their, the economy of their country very much if they did not change. And even now, for example, Sudan, Sudan, for example, is facing a terrible economic crisis. The economy is tittering on the brink of collapse. They need access to international finance. They need loans from international finance institutions like the World Bank. If the business community would also get involved and threaten to divest, it would have an impact. And even the actions of government, they've not been totally ineffective. They are governments like Egypt, like Saudi Arabia, like the United Arab Emirates that are supportive of the military in Sudan. But I believe some of the changes we are seeing, like the agreement that was announced yesterday, where they are at least agreed to restore the prime minister. These are possible because I think countries like the U.S. have been able to get the Saudi Arabia's, the Arab Emirates, Egypt to put pressure on their Sudanese allies to reach some compromises. So I believe that pressure by governments coupled with pressure from the business community can create an environment where the military may be willing to make some compromises. So I agree with your suggestion. Yes, the international community and especially the business community can make a difference. The international community, especially the business community, can make a difference, either by withholding investment or by withholding loans. Some of these countries depend upon survive. Well, I like to see that myself. I mean, I think that companies should have consciences and countries should have consciences, consciences that are international consciences. Gerald, we're out of time. Gerald Gajima joins us from Maryland. He's originally from Wanda. Thank you so much for sharing your thoughts with us, Gerald, and helping us understand these complex issues.