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Profiles & Interviews

An Interview with Jean-Claude Piris

The following is an excerpt from the published interview with Jean-Claude Piris. To see the full interview, please click on the link to download the article above or below.

Q: Could you tell us more about the role and functions of the Legal Service of the Council?

The Council is composed of one minister per Member State and adopts legislative and other legal acts. The Council meets in different areas—such as foreign affairs, agriculture and fisheries, justice, and so forth—and of course, it needs lawyers. The European Council (composed of Prime Ministers and Heads of State) meets every three months and decides on the priorities of the EU—the main lines of policies to come. For this it needs a Legal Counsel. So I am doing this job and to help me I have about 300 people, and about half of them are lawyers from all twenty-seven member states. They are divided into directorates, working on external relations, justice and home affairs, economy and finance, agriculture and fisheries, the internal market, and so on and so forth. Half of my staff (150 people) are lawyers specialized in improving the quality of the law—and doing so in all languages. We have twenty-three official languages, and every version has an equal authentic value—so this directorate ensures that the law means the same thing in all languages.

. . .

Q: Please tell us a little bit about your new book, The Lisbon Treaty: Legal and Political Analysis.[1]You argue that the EU is not yet done developing, and that the EU is plagued by major imbalances. What are some of these imbalances that still remain to be tackled, especially after the Lisbon Treaty?

The major imbalance is of course the one the EU is working on now—President Van Rompuy, the Council of Ecofin (the Council of Economic and Financial Affairs) and the European Council—it is the crisis of the Euro and how we will get out of that. The EU is not a state and not a classic international organization, but we work like a state for the Euro—the Euro is managed in a federal way. We have a European Central Bank. That is the “M” (the monetary part of the Economic and Monetary Union), but the economic part (the “E” part), has been left to states. Of course, they have the democratic legitimacy, and they have the link between the voters and the decision-makers who make decisions on fiscal matters, tax matters, budget matters, and so forth. If the member states make mistakes (if they do have huge budget deficits and huge debts), the Euro has problems. That is exactly what happened.

A preliminary and provisional solution has been adopted, which is a provisional mechanism to help with money in case something happens. This mechanism is going to end in 2013 (it was provisional for 3 years). Mrs. Merkel said that she has a lot of difficulties to transform it into a permanent mechanism—political difficulties with the Bundestag, Bundesrat, and important legal difficulties with the German Constitutional Court. She is convinced that she will lose the case—that she will not be able to transform the provisional mechanism into a permanent mechanism because some people think it is against the Treaty. So what she is asking for is a modification of the Treaty in order to allow establishment of this mechanism as a permanent one.

Besides that, the task force presided by Mr. Van Rompuy, composed of all the ministers of Ecofin, and also Mr. [Jean-Claude] Trichet from the Central Bank have reached final conclusions,[2] and the Commission on this basis has proposed six legislative proposals for better economic governance that will be on the table of the Council and the Parliament. Some of them require co-decision while some of them require the simple opinion of the Parliament. We might adopt these proposals in 2011, but there is also that small change in the Treaty necessary for Germany, which will be very difficult to get. So that is one of the imbalances we have and the work is in progress to try and solve it.

We have other imbalances, for example we have not finished the internal market. People think that we have finished the internal market, but that is not true. In the matter of services, for example, we are far from it. But on that we have already a report from Professor [Mario] Monti, President of Bocconi University in Milan,[3] who was a member of the Commission in the past, and now we have a series of fifty Commission proposals to improve the situation.

I think we have other imbalances too. We have not done enough to harmonize tax legislation. That is very difficult because it is subject to unanimity—as a lot of things in the EU are—and now we are twenty-seven countries. We are not six countries anymore or even twelve like when I began—twelve that were very homogenous—now the twenty-seven Member States are very heterogeneous. Interests and needs are completely different. We have very poor countries like Romania and Bulgaria, which are not well advanced in economic terms, social terms, and in protecting the environment. It is very difficult for them (I’m not criticizing them because it is normal that they defend their interests) to accept an increase in the standards—it is impossible. So the Union has a huge impediment to acting in the world as it is today. The world today is globalized, is changing at the speed of light—look at China, and so on—changing faster than ever. So we have to adapt, we have to help our member states to adapt to these changes. Our member states are small—small surface areas, small populations, awful demographic conditions (the proportion between workers and non-workers is going to be worse and worse in the future), more immigration, with lots of problems that we have already and not enough innovation, not enough investment in structural reforms, not enough investment in research and development, not enough productivity improvement, not enough entrepreneurship. On all that the EU can help and improve governance of its member states, so we need the EU. But we need an EU which is able to decide quickly and make more decisions. And in the state we are in, with the rules we have, we are working in a slow manner, and in a non-ambitious manner. We cannot accommodate everybody with “one decision fits all.” A lot of decisions must be taken unanimously. So it takes a long time and we have very low degrees of ambition. So that is what I mean when I say that there are imbalances.

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[1] Jean-Claude Piris, The Lisbon Treaty: A Legal and Political Analysis (2010).

[2] Strengthening Economic Governance in the EU, Report of the Task Force to the European Council (Oct. 21, 2010), available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/117236.pdf.

[3] Mario Monti, A New Strategy for the Single Market, Report to the President of the European Commission (M ay 9, 2010), available at http://ec.europa.eu/bepa/pdf/monti_report_final_10_05_2010_en.pdf.

Online Scholarship

Corporate Accountability in Conflict Zones: How Kiobel Undermines the Nuremberg Legacy and Modern Human Rights

I.        Introduction

On September 17, 2010, a two-judge majority of the Second Circuit held in Kiobel v. Royal Dutch Petroleum Co. that “corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the [Alien Tort Statute].”[1] The Alien Tort Statute (“ATS”)[2] is a well-known tool that grants U.S. federal courts jurisdiction over civil suits brought by aliens for torts committed in violation of international law. The statute has been used for the past three decades to hold perpetrators of human rights abuses accountable in U.S. courts.[3] Some ATS cases have involved conflict zones,[4] and since the mid-1990s, ATS cases have been brought against corporations for their alleged involvement in human rights violations.[5]

Prior to the Kiobel court’s ruling on September 17, no appellate court had ever held that corporations were not subject to suit under the ATS.[6] Indeed, numerous corporate ATS cases had proceeded through the courts with no indication that corporations could not be held liable or that this was an issue of subject matter jurisdiction.[7] By ruling that the scope of liability for a violation of a given international norm does not extend to corporations, the Second Circuit majority, in the words of concurring Judge Leval, “deals a substantial blow to international law and its undertaking to protect fundamental human rights.”[8]

Taking the recent Kiobel decision as a starting point, this article examines the ramifications of the majority opinion with respect to corporate accountability in conflict zones, both in the ATS context and more generally. The article contends that Kiobel is out of step with the historical tradition of the international legal system to fill governance gaps, including by holding actors operating in conflict zones accountable for egregious violations of human rights when domestic systems fail to do so. This tradition dates back at least to the World War II era and the case of I.G. Farben, the largest industrial entity supporting Nazi Germany, which was sanctioned with the corporate death penalty—dissolution—for its participation in violations of international law. The I.G. Farben example clearly illustrates that the international system can regulate corporate actors operating in conflict zones. The article concludes that the implications of Kiobel are profound, as the decision creates unprecedented opportunities for corporate actors to shield themselves from liability for clear abuses of international law through incorporation. Indeed, Kiobel may incentivize the creation of present-day I.G. Farbens, an outcome at odds with jurisprudence in the modern human rights era.

The article begins with a discussion of how the Kiobel decision went off course.[9] First, Part II examines the basic parameters of the international legal system, which establishes a normative framework and leaves enforcement primarily to domestic jurisdictions. Typically, international enforcement mechanisms only play a role when domestic sovereigns fail to act, which commonly occurs in conflict zones. This section also explains how the Second Circuit’s misunderstanding of these basic tenets and its conflation of the normative analysis with the enforcement mechanism analysis led the court to adopt an overly narrow rule at odds with the realities of the international legal system.

Part II then closely analyzes the sanctioning of I.G. Farben, the largest industrial supporter of the Nazi regime. The I.G. Farben example is particularly relevant to notions of corporate accountability in conflict zones. It illustrates how, in the aftermath of World War II, international law approached the question of accountability for a corporate entity when domestic remedies were not available. The Kiobel majority misinterpreted the historical record by relying on I.G. Farben to support its assertion that because the corporate entity itself was not prosecuted criminally at Nuremberg, there is no international consensus that corporations can be held accountable for violations of international law. However, as Part II details, a variety of enforcement mechanisms, both criminal and administrative, were deployed under international law during the post–World War II era to hold both individual industrialists and corporate actors accountable. I.G. Farben received the ultimate penalty when the Allied Control Council ordered it dissolved through Control Council Law No. 9.[10] Thus, the example of I.G. Farben demonstrates that international law has long held corporate entities accountable for egregious violations in conflict zones.

Part III builds on the preceding discussion to illustrate why the international approach to I.G. Farben’s abuses was correct. To leave I.G. Farben without sanction under international law (as the Kiobel majority would) has far-reaching implications for human rights, and international law more generally, in conflict zones. Part III examines the variety of relationships between states and corporations in conflict zones and explores the perverse incentives that the majority’s rule creates. In particular, Kiobel potentially incentivizes states to abdicate state duties to corporations because incorporation may effectively insulate all parties—states, armed groups, and corporations—from liability. As Judge Leval observed, the majority’s rule “offers to unscrupulous businesses advantages of incorporation never before dreamed of.”[11] Incorporation could become a perfect shield for those seeking to commit violations of international law with impunity.

Through Control Council Law No. 9, the Allied Control Council made clear that the dissolution of I.G. Farben was intended to “insure that Germany will never again threaten her neighbors or the peace of the world.”[12] The Nuremberg era laid the foundation for modern human rights. Kiobel profoundly threatens to undermine the Nuremberg legacy, as the decision indicates that some entities—corporations—are beyond the reach of customary international law.

. . .

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[1] Kiobel v. Royal Dutch Petroleum Co. et al., No. 06- 4800, 2010 U.S. App. LEXIS 19382, at *1 (2d Cir. Sept. 17, 2010). Nigerian plaintiffs filed Kiobel in 2002, alleging that the Royal Dutch Petroleum Company and Shell Transport and Trading Company, through a subsidiary, collaborated with the Nigerian government to commit human rights violations to suppress lawful protests against oil exploration in the Ogoni region of the Niger Delta. In 2006, the district court granted in part and denied in part the defendants’ motion to dismiss. In particular, the district court granted the motion to dismiss for the claims of aiding and abetting extrajudicial killing, forced exile, property destruction, and violations of the rights to life, liberty, security, and association, holding that customary international law did not define these violations with the specificity required by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). See Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 464–65, 467 (S.D.N.Y. 2006). The court denied the motion to dismiss for the claims of aiding and abetting arbitrary arrest and detention, crimes against humanity, torture, and cruel, inhuman, or degrading treatment. See id. at 465–67. The district court then certified its entire order for interlocutory appeal, finding there were substantial grounds for differences of opinion and that the issues presented were important and could resolve the litigation. The question of corporate liability was not addressed in the district court’s order. The appeal was argued in January 2009.

[2] 28 U.S.C. § 1350 (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”).

[3] See, e.g., Sosa, 542 U.S. 692; Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006); Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996); Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994).

[4] See, e.g., Kadic, 70 F.3d at 232 (bringing claims for abuses committed during conflict in Bosnia).

[5] See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009); Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008); Sarei v. Rio Tinto, P.L.C., 550 F.3d 822 (9th Cir. 2008); Viet. Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir. 2008); Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005); Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004); Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003); Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), vacated on other grounds, 403 F.3d 708 (9th Cir. 2005); Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002); Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir. 2000); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998).

[6] Just days before Kiobel was decided, a district court in California became the first to dismiss an ATS suit on the grounds that customary international law does not apply to corporations. Doe v. Nestle, S.A., No. 05-5133 SVW, 2010 U.S. Dist. LEXIS 98991, at *192 (C.D. Cal. Sept. 8, 2010).

[7] See Kadic, 70 F.3d at 14.

[8] See Kiobel, 2010 U.S. App. LEXIS 19382, at *113 (Leval, J., concurring). Judge Leval agreed that the complaint should be dismissed, but on the grounds that plaintiffs’ pleadings were inadequate under Twombly. Id. at *247–64 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, Judge Leval strenuously disagreed with the majority’s position that corporate liability does not exist under customary international law. Id. at *113.

[9] It is beyond the scope of this article to discuss all the flaws in the Kiobel majority’s legal reasoning. One major issue that this article does not directly address is whether federal common law or international law should resolve questions of corporate liability. Part II only tangentially touches on this question in its discussion of the relationship between the international and domestic legal systems. While the authors do not endorse international law as the proper source of law to decide questions of corporate liability, this article takes international law as its starting point and examines Kiobel’s limitations in this context. For analysis of additional flaws in the majority opinion, see the concurrence of Judge Leval. Kiobel, 2010 U.S. App. LEXIS 19382, at *113 (Leval, J., concurring).

[10] The Allied Control Council was the same entity that established the Nuremberg tribunal through Control Council Law No. 10 to prosecute criminally the Nazi industrialists who ran I.G. Farben. See Control Council Law No. 10, Punishment of Persons Guilty of War Crimes (Dec. 20, 1945), in I Enactments and Approved Papers of the Control Council and Coordinating Committee 306, available at

http://www.loc.gov/rr/frd/Military_Law/Enactments/01LAW09.pdf [hereinafter Control Council Law No. 10].

[11] Kiobel, 2010 U.S. App. LEXIS 19382, at *144 (Leval, J., concurring).

[12] Control Council Law No. 9 pmbl., Seizure of Property Owned by I.G. Farbenindustrie and the Control Thereof (Nov. 30, 1945), in I Enactments and Approved Papers of the Control Council and Coordinating Committee 225, available at http://www.loc.gov/rr/frd/Military_Law/Enactments/01LAW06.pdf [hereinafter Control Council Law No. 9].

Online Scholarship

Challenges in Lawyering

Introduction

U.S. corporations, especially those in the mining and oil and gas industries, face many challenges in operating in difficult locations around the world.  With the imperative to go where the natural resources occur, these challenges can be geographical, operational, legal, and ethical depending on remoteness, terrain, political stability, governing regime, and cultural differences.  Absent a developed concept of “rule of law,” there is often no assurance of impartial courts, predictable enforcement of contracts, or due process in the treatment of employees or assets.  Changes in regimes or economic conditions can result in an environment that has deteriorated significantly from the time a company made its initial country entry decision.  Creeping expropriation through tax, royalty, or regulatory changes or total expropriation of assets is a potential risk.  Expatriate employees are often asked to take local assignments, and local employees may be hired.  Their safety and security is a central concern.  Reputational risk is also a key consideration.

Imagine this realistic scenario presenting a perfect storm of problems: Several years after undertaking operations in a country, a company learns that a local agent may have paid bribes to obtain business on its behalf.  The governing regime has become increasingly despotic.  The U.S. government indicates that country sanctions may be imposed due to links between the regime and terrorism.  The regime initiates decrees to double the royalty rate and tax rate on foreign concessions.  A company expatriate employee is hijacked and possibly kidnapped on his way to work, and, because operations in the country are material to the company, prompt disclosure obligations apply.

Providing legal advice to business operations exposed to such events requires counsel to be aware of a wide range of considerations in order to plan a specific country entry, anticipate problems, reduce the risk of legal exposure, and react quickly to developments.  Creative lawyering goes beyond knowledge of the applicable law to include understanding local culture and customs, understanding the company’s strategy and risk tolerances, being mindful of corporate reputation, gathering relevant prior experience, and being willing to act as the conscience of the company.  To address known and unknown risk conditions, companies and their lawyers can look to a number of guiding principles to shape decisions and responses.

As a starting point, U.S. corporations must comply with applicable U.S. law and local law in their operations.  This obligation is supplemented by self-imposed standards set forth in codes of business conduct adopted by most major corporations and in international initiatives on human rights, security, and transparency to which many companies in extractive industries have subscribed.[1] The evolution of these initiatives in industries that have experienced the challenges for many decades can provide a context and precedent for companies in other industries with global operations.

. . .

[1] See, e.g., ConocoPhillips, Code of Business Ethics and Conduct, https://secure.ethicspoint.com/domain/media/en/gui/26697/code.pdf [hereinafter ConocoPhillips Code of Conduct].

Online Scholarship

Old and New Governance Approaches to Conflict Minerals

I.        Introduction

This article explores the role of new governance structures that have been utilized to address supply chain–related labor and human rights abuses.  More specifically, it examines the utility of multi-stakeholder fora to address such problems.  It argues that such multi-stakeholder fora, including multi-stakeholder initiatives, provide a number of advantages when addressing global supply chain–related issues, when compared to traditional command-and-control approaches.

The article then focuses on the issue of conflict minerals.[1] It describes the role that multi-stakeholder initiatives can play to help address the problem of conflict minerals, and the problem-solving advantages that a mix of actors can bring to the table.  The article notes that the composition and focus of such initiatives may vary, and must be carefully formulated if they are to address the challenging issue of conflict minerals.  Moreover, although multi-stakeholder approaches are potential mechanisms to help address the problem of conflict minerals, they are not sufficient.  Rather, the problem of conflict minerals is a subset of a wider political and economic breakdown, and demands that a complementary and interlocking web of new and old governance approaches be utilized.

The article posits that States, including not only those that are host to conflict minerals, but also concerned members of the international community, must play two critical roles to address conflicts funded by illicit mineral trading.  First, they must encourage “new governance” multi-stakeholder approaches to solving the commercial aspects of the conflicts, and they must play a stronger role in such multi-stakeholder initiatives than they typically might.  This, however, is not likely to be sufficient.  States must take on a second role.  The political and economic aspects of conflict mineral-funded warfare demand that States also utilize traditional international governance mechanisms such as imposing sanctions through the United Nations (U.N.); encouraging effective governance in conflict-affected countries; and providing development aid, such as that directed at alternative livelihoods and support of the legal mining sector.  In short, the most devolved, non-state-centric forms of new governance, such as multi-stakeholder initiatives, are unlikely to succeed in controlling the sale of conflict minerals, much less ending conflicts, without governments influencing the political situation and building capacity in the state suffering from conflict.

The article tests this theory by examining the Kimberley Process, a multi-stakeholder initiative formed to address conflict diamonds in which governments play a leading role.  It also examines the efforts thus far which are aimed at stopping the trade of conflict minerals from the eastern Democratic Republic of the Congo (DRC).  It identifies trends towards a multi-stakeholder approach to addressing the trade that funds the conflict.  It also notes that this is likely to prove insufficient on its own to address the problem, and highlights the need for governments to undertake more traditional roles.

. . .

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[1] The term “conflict minerals” is sometimes used to specifically address the four minerals from the eastern DRC that are believed to fund that conflict.  In this article, it is used more broadly, and encompasses other minerals that may fund conflicts, such as diamonds.

 

Student Commentaries

Exploring the Curious Lenience of International Criminal Law

The decision of the Extraordinary Chambers in the Courts of Cambodia to sentence Duch, the brutal Chairman of S-21 and the Killing Fields at Choeung Ek, to a mere nineteen years in prison exemplifies the disturbing tendency of international criminal tribunals to issue sentences of pedestrian severity to the world’s very worst criminals. This article examines the sociopolitical roots of this phenomenon. Drawing on insights from the political science literature to engage in a comparative analysis of the relationship between democracy and punishment, the article concludes that international criminal tribunals’ lenience likely stems, at least in part, from excessive insulation from, and insensitivity to, democratic pressures. The experiences of the United States—where democratic participation in the machinery of punishment and excessively punitive sentencing have gone hand in hand—counsel against allowing popular sentiment to directly dictate the terms of punishment. Yet international jurists could arrive at a more just sentencing framework by incorporating popular preferences and values into their decision-making processes.

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Profiles & Interviews

An Interview with Larry D. Johnson

The following is an excerpt from the published interview with Larry Johnson. To see the full interview, please click on the link to download the article above or below.

Q: What were the most rewarding aspects of your career in pursuing international law?

I have had 37 years of being a lawyer in United Nations (UN) organizations, including the UN itself, the International Atomic Energy Agency, and the International Criminal Tribunal for the former Yugoslavia (ICTY), so there have been some highlights throughout. Some of them were related to work in the UN Office of Legal Affairs, where we had to deal with the attempt of the U.S. government in 1988 to close the Palestine Liberation Organization (PLO) Mission. That got us involved with the federal district court, where the UN filed an amicus brief. It was a great mix of international law and U.S. constitutional law. The judge sided with us that Congress did not clearly intend to supersede the UN/U.S. Headquarters treaty by adopting a law closing all PLO offices in the United States, including the PLO Observer Mission to the UN. Going back to settled constitutional law doctrine, the judge ruled that as treaties and acts of Congress are both the supreme law of the land. If there is a conflict, whichever is later in time applies as long as it is absolutely clear that it is the intention of the later action, in this case an act of Congress, to supersede the treaty. In this case the judge found, as we had argued, that the requisite congressional intent to violate and supersede the treaty did not exist.

The other highlights were being involved in the creation of international criminal tribunals. The UN Legal Office prepared the statute for the International Criminal Tribunal for the former Yugoslavia, which was very challenging and exciting. We were in deep water because there wasn’t anything to draw on other than Nuremberg and the courts created in Germany by the Allied Powers after the Second World War. And we had 60 days to do it. A lot of it was just flipping a coin in making policy choices. We assumed that the statute would go through lots of negotiations and tinkering by the Security Council, but at the end of the day, for various reasons, the Council adopted it as it was. So after having begun what seemed to be a very theoretical, politically motivated, and time-consuming initiative, all of a sudden it was adopted “as is” and came to life.

The second tribunal, the International Criminal Tribunal for Rwanda (ICTR), was not done by the Secretariat, but rather by members of the Security Council. Following that tribunal and after I had left, the Legal Office was involved in the creation of the tribunals for Sierra Leone and Cambodia. I was back in the Office of Legal Affairs when we created the Special Tribunal for Lebanon. This is a whole different animal, because it does not have war crimes as its subject-matter jurisdiction. The Special Tribunal for Lebanon is applying the Lebanese domestic law concerning terrorism and bombings with regard to the assassination of the late Prime Minister Rafik Hariri.

Q: Critics of ad hoc tribunals such as those you have mentioned have highlighted that the international criminal tribunals prosecute too few people, that they cost too much money, and that the tribunals do not necessarily address the needs of those living in these countries. What are your responses to these critics and your views on the role of these tribunals?

On the number of indictees, actually, at the beginning of both the ICTY and the ICTR, the criticism was that they were indicting too many, and all of a sudden there were a lot of people who were being arrested or were turning themselves in. There were quite a few fugitives for a while, but in the end there are only two fugitives left for the ICTY. The Security Council, on the recommendation of the ICTY itself, said that the tribunals should limit themselves, not to every person who had committed serious violations of international humanitarian law, but to only the most senior who were responsible for the most serious crimes. So that way they began to shorten the list. And in fact some of those indictees, by procedures adopted in the ICTY, if they are middle or lower level perpetrators, can be back to local courts in the region, for example in Zagreb, Belgrade or Sarajevo, once the ICTY is satisfied that due process will be had, and that the trial will not be a sham or a kangaroo court. If the ICTY thinks that one of these domestic proceedings is not going well according to international standards of due process, it has the power to pull it back. In that way, they began to cull some of these indictees who would not be indicted today, but who were indicted in the early years when they could not get their hands on the big fish.

Later, for the tribunals for Sierra Leone and Cambodia, their mandates included that they were to try only the most senior people who had committed the most serious crimes. That’s why Sierra Leone had only a few indictees, around 10–12. And they are all done except for Charles Taylor, who’s being tried now. It’s the same with Cambodia, where there is a relatively small number of indictees because they wanted to get the top leadership.

Q: What do you think are the greatest legal barriers to the UN becoming a more effective institution?

Now you’re getting into UN law. In terms of being an effective organization—for what purpose? I suppose if you look at the primary objective of the UN Charter, which is to save succeeding generations from the scourge of war, you are talking about the ability of the UN to maintain international peace and security, which is primarily the function of the Security Council. Obviously there has been a lot written in the past 60 years about how the Security Council is or is not functioning, whether the veto should be revised or expanded to have new countries get the veto or at least new permanent membership—rumor has it that World War II is over—and that the Security Council is too political an institution. I’m not sure the veto is an objective legal obstacle, because if there wasn’t the veto, we would not have the organization we have today. Every member of the UN understood that and accepted the veto when they signed on to the Charter. Plus, if this “legal barrier” were removed, the Council could be adopting resolutions against the fundamental interests of the major Powers who would simply ignore the Council resolution, eroding its credibility over time. There could, as an alternative to the UN, perhaps be several organizations of like-minded states, but there would not be a universal organization. And there are high points, such as the actions leading up to the first Persian Gulf War against Iraq, when the organization actually began functioning exactly as its 1945 authors intended it to, with the five permanent members working together, meeting together, and then going to the whole Security Council. A lot of the members of the organization were not used to that and said, “What is this? The P5 are now uniting and dictating to us, imposing sanctions all over the place!” But in fact that’s what the organization was intended to be like. So the biggest obstacle is dealing with the feeling of many other countries that it’s not their organization, the Security Council is too powerful, and the permanent members are abusing their privileged position. You have to deal with that appearance or reality without tearing down the structure. It is trite but true to say the UN will work effectively when the political will is there of all members to make it work—that is not a legal barrier.

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Q: Critics of ad hoc tribunals such as those you have mentioned have highlighted that the international criminal tribunals prosecute too few people, that they cost too much money, and that the tribunals do not necessarily address the needs of those living in these countries. What are your responses to these critics and your views on the role of these tribunals?

On the number of indictees, actually, at the beginning of both the ICTY and the ICTR, the criticism was that they were indicting too many, and all of a sudden there were a lot of people who were being arrested or were turning themselves in. There were quite a few fugitives for a while, but in the end there are only two fugitives left for the ICTY. The Security Council, on the recommendation of the ICTY itself, said that the tribunals should limit themselves, not to every person who had committed serious violations of international humanitarian law, but to only the most senior who were responsible for the most serious crimes. So that way they began to shorten the list. And in fact some of those indictees, by procedures adopted in the ICTY, if they are middle or lower level perpetrators, can be back to local courts in the region, for example in Zagreb, Belgrade or Sarajevo, once the ICTY is satisfied that due process will be had, and that the trial will not be a sham or a kangaroo court. If the ICTY thinks that one of these domestic proceedings is not going well according to international standards of due process, it has the power to pull it back. In that way, they began to cull some of these indictees who would not be indicted today, but who were indicted in the early years when they could not get their hands on the big fish.

Later, for the tribunals for Sierra Leone and Cambodia, their mandates included that they were to try only the most senior people who had committed the most serious crimes. That’s why Sierra Leone had only a few indictees, around 10–12. And they are all done except for Charles Taylor, who’s being tried now. It’s the same with Cambodia, where there is a relatively small number of indictees because they wanted to get the top leadership.

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