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UN crimes expert in Bahrain: No one is above the law | ASHARQ AL-AWSAT English Archive 2005 -2017
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Manama, Asharq Al-Awsat- Professor Mahmoud Cherif Bassiouni, UN crimes expert and chairman of the fact-finding committee in Bahrain said the task given to him in Bahrain is to find facts and violations through opening all files. He stressed that nobody will be above the law and that the situation in Bahrain cannot be compared to what is happening in other countries. However, since it is a small country then the events have a deeper social and psychological effect.

Bassiouni pointed out that the Syrian situation requires international intervention and the formation of a committee to investigate the crimes committed there similar to the committee he is heading in Libya. In the interview with Asharq Al-Awsat, Bassiouni discussed the situation in Egypt, and expressed his fears from the future in light of the current situation and the lack of true leadership that would lead the country to true reform. He said that the country is suffering a political vacuum and the lack of a party that is capable of leading the country, as he said.

Bassiouni revealed the crimes of rape committed in Libya, the use of banned weapons called “damdam,” and he pointed out that all indications are that Libyan leader Muammar Gaddafi must be tried by an international court because of his war crimes that killed around 15,000 Libyans within 4 months.

Mahmoud Bassiouni said that the International Criminal Count in The Hague was established following his own investigation of former Yugoslavia and that he was a candidate for the position of general prosecutor had it not been for Russian and British objection and his Egyptian nationality.

[Asharq Al-Awsat] Can you tell us how this fact-finding committee was put together and how you were selected?

[Bassiouni] The idea came from the Bahraini king who had international contacts in order to put forward some names. In the meantime, my name was circulating in the media since I am the head of the UN committee looking into the crimes committed in Libya. He who was looking at what is happening in Libya was looking at what happens in such committees and investigations into previous wars. Circumstances had it that the first committee for investigation in the world since the Second World War until the end of the Nuremburg trials was specialized in forming a special tribunal on former Yugoslavia in 1992. It was formed by the Security Council at the highest levels and was given all authorities. I was nominated as the chairman. I worked for over 18 months on investigating the war crimes in Yugoslavia and the UN was forced to establish a special international tribunal for Yugoslavia based on recommendations made by the committee I headed. Incidentally, it was the largest report in the history of the Security Council since it included 3,500 pages and was supported by 76,000 documents, 300 hours of video, and 3,000 pictures. The report reveals 151 mass graves, and we carried out the first investigation in the world on the use of rape as a war policy. I personally held investigations along with a team of 30 female investigators that I had chosen myself. I also personally investigated 223 cases directly and we managed to obtain 575 statements by women who were raped and the identity of those who carried out the rapes. We also identified over 4,400 cases of rape; these were horrific crimes that I had not expected.

[Asharq Al-Awsat] What does this rise in rape cases mean?

[Bassiouni] In my opinion, I believe these actions were within the policy of ethnic cleansing since the Serbs knew the Muslim mentality and the meaning and effects of rape within the Islamic community, because if a family suffered such a tragedy, it cannot return to the usual place of residence. For example, I went to a town called Omerska and I found that 18 girls from one secondary school were raped by colleagues of theirs who were given permission to rape so that the families of these girls do not return to that town again. There were 54,000 Muslims living in that town. However, following the ethnic cleansing there were only 4,000 people left because it was difficult to coexist with those who committed the crimes, especially since the entire community was Serbian and therefore nobody could arrest the Serb perpetrators because they were Serbs. We revealed great tragedies. Even the Security Council after reviewing the report that contained all the evidence and documented facts could not backtrack on its responsibility or to search as always for a resolution or a political exit. It was forced to create the International Criminal Court [ICC]. Despite the fact that the UN secretary general nominated me for the position of general prosecutor of the new tribunal that was established because of these crimes (The Hague Tribunal), Russia and England rejected my nomination and justified their rejection to the fact that I was a Muslim and biased toward Bosnia. I told them I admit I am biased but the general prosecutor must be biased toward the party against which the crime was committed. It is the court that makes a decision. They tried to play a political game with me and they asked me to be a judge, but I refused. I told them I cannot be a political player. I was given a mission and I carried it out. If there is another mission then I will also carry it out but I cannot play a political game. I have no worldly ambitions in politics, money, or anything else.

[Asharq Al-Awsat] What resolutions were issued based on the Yugoslavia report?

[Bassiouni] A decision was made to create the Special Tribunal for Yugoslavia in The Hague and Slobodan Milosevic was tried but he died during his trial, and now former military commander Ratko Mladic is on trial. I was voted vice chairman of the committee at the General Assembly and unanimously chosen by the General Assembly, which was a rare step, as the head of the drafting committee. I edited the Basic Statute of the tribunal. I hold dual nationality (US and Egyptian) but within this work I worked under the Egyptian banner and since Egypt had not ratified the Basic Statute I was unable to be nominated as a general prosecutor or a judge at the ICC.

[Asharq Al-Awsat] Why didn’t Egypt ratify the Basic Statute?

[Bassiouni] It was about to ratify it but it faced a lot of pressure from America. At the same time, the Egyptian military forces had objections over Article Eight, which defines war crimes and bans the use of chemical weapons. Taking into account that Egypt had chemical weapons because Israel had nuclear weapons…Egypt expressed its readiness to ratify it on the condition of placing the article relating to chemical weapons on a par with the article relating to nuclear weapons. Then America covered up for Israel and said no but Egypt insisted on maintaining chemical weapons as a worst case. The American pressure was greater than anything else and we hope that one day Bahrain and other Arab countries, especially the Arab Gulf countries, will be included within the Basic Statute of the International Court after the joining of Jordan, Tunisia, Djibouti, and the Comoros. However, the fact that no other Arab country has joined the court’s Basic Statute has created a vacuum in the court through the absence of Arab presence and power.

[Asharq Al-Awsat] Why are these countries late in joining?

[Bassiouni] There were American pressures, in addition to the fact that the political regimes in the Arab world do not have sufficient political maturity and have not reached the level of democratic advancement that allows the civil societies to influence their governments. Governments continue to be dictatorial to a great degree and do not look at the concept of the prevalence of law and the protection of human rights, especially since the Court’s Basic Statute does not take away the country’s special domain vis-à-vis crimes but gives the country that has ratified it t h e right to implement the ICC legal and judicial system first, it has the priority. In the event of the inability of the country then the trial goes to the ICC and if the country wants to carry out its role in an honest and safe manner then it does not fear joining. Bahrain, which formed an independent fact-finding committee, in this case will try those who violated the law in Bahrain. The Interior Ministry has around 30 cases under investigation. Had Bahrain been party to the ICC Basic Statute then it would be difficult for anyone to say that Bahrain did not play its role. Had there been trials then they would not have gone beyond 32 cases since Bahrain has already completed 30 cases. Bahrain showed its willingness to move forward on the prevalence of law. Any country that has this willingness and this respect for the rights of individuals will not be afraid of joining the ICC. As for dictatorship regimes, they do not consider human rights; they have concealed political rights, rendering them in constant fear of joining.

[Asharq Al-Awsat] Many believe that reports by the ICC are often politicized?

[Bassiouni] I do not agree with you. However, we must differentiate between international organizations. For example, the Human Rights Watch or the High Commission in Switzerland against torture are not politicized but they are organizations that to a great degree have a western color and a western concept in terms of ideological, methodological, and scientific approaches, which is natural. There is also another reality and that the resources of any human rights organizations depend of American and western resources and therefore they must have an influence.

[Asharq Al-Awsat] However, there are regions where there are human rights violations… but we do not see that these organizations intensify their tone, but had these violations been in other places …

[Bassiouni] (interrupts) You are right. However if an American human rights organization whose resources come from American companies and institutions and you said you were going to Bahrain, Burma, Sri Lanka, or in Palestine where there is Zionist pressure then they will not finance you. In the end, there is influence, but it is natural. Regrettably, despite the resources the Arabs possess and that are present in the Arab world, we cannot create an Arab lobby in America for example or finance human rights organizations around the world. The problem is that we look at the other side or the enemy and say they are stronger than us. The truth is that they are not strong it is us that are weak. There are pressures no doubt, in the sense that they look at what happens in the Arab world more than what happens elsewhere. The western world is shining a light on Libya and Bahrain but not on Syria. Nobody is criticizing what is happening in Egypt.

[Asharq Al-Awsat] Where have you reached in Libya?

[Bassiouni] We have prepared a 75-page report. We estimate that around 10,000-15,000 people have been killed in a time period of no longer than four months and in a geographic location where around 1.5 million people live. Oddly enough we have seen some rape cases in Libya. We have managed to determine nine of those cases but we cannot say whether these cases were directed by the government or the regime, but they have taken place. Also banned weapons were used such as the so-called “Dumdum” which enters the body and explodes. In addition to the use of phosphorus weapons that burn the body.

[Asharq Al-Awsat] Can the Libyan case be considered a war?

[Bassiouni] Yes it is a case of war, but it is a civil war. In truth, there is one official army and another unofficial army. There are many fighters with the anti-government forces that have split from the army, at the forefront of which was Libyan Armed Forces Chief of Staff Abdul-Fattah Yunus, member of the former Libyan Revolutionary Command Council, who was assassinated recently.

[Asharq Al-Awsat] Colonel Muammar Gaddafi was placed on the list of those wanted by the International Court. Was this based on the report of the investigation committee you are heading?

[Bassiouni] Frankly, it was not based on our reports because we had not presented our report to the ICC general prosecutor at the time because he himself wanted to make the order to arrest some personalities within in a short time-frame. At the time, I was not confident about the readiness of our report and I was afraid to rush the decision to end the report before carrying out a thorough investigation, because you have to be thorough when you accuse someone. I have experience in this matter since I was the one who founded the ICC’s basic statute for the special tribunal in Iraq for trying Saddam Hussein. I was eager when placing the basic statute, even if the ruler was someone like Saddam Hussein who was known for 30 years to be an oppressive ruler, that the law must be implemented without any differentiation. Differentiation is not acceptable and the law must be above all.

[Asharq Al-Awsat] Do you believe that Saddam Hussein’s trial was fair?

[Bassiouni] In terms of procedure it was very fair.

[Asharq Al-Awsat] Through the crimes in Libya, do you believe that Gaddafi deserves to be tried internationally?

[Bassiouni] I continue to be the head of the fact-finding committee and we are continuing our search into what is going on there. Therefore, it is difficult for me to respond to this question but it is clear that matters are heading toward a trial.

[Asharq Al-Awsat] Do you believe that what is happening in Libya indeed constitutes heinous crimes?

[Bassiouni] It is enough that 15,000 people have been killed in a short space of time.

[Asharq Al-Awsat] What is happening in Syria today does that not call for the formation of a fact-finding committee?

[Bassiouni] What happened in Syria months ago requires a committee. Here I can return to your previous question because the case in Syria depends on the importance of its political role as a major Arab country that has a large army. It lies on the border with Israel and has ties to Hezbollah and ties with Iran. Therefore, there is no doubt that major countries are careful when taking any action toward Syria but are not as careful toward other countries. There are many human rights and other organizations demanding that there be an international committee to investigate the situation and to refer the case of Syria to the ICC.

[Asharq Al-Awsat] Sudanese President Omar al-Bashir is also wanted by the International Court. Is there any disagreement over whether or not he deserves to be tried internationally?

[Bassiouni] No. Al-Bashir deserves more than the trial after he caused the death of over 200,000 people. However, our problem, us Arabs and Muslims, is that we do not admit and cannot be fair when the crimes are committed by us. For example, there have been more Palestinians killed by the Arabs in Jordan and Lebanon than those killed by Israel. When we demand that Israel should be tried for killing 1,300 people in Gaza in December and January last year, we agree with that, but we turn a blind eye to another 200,000 other deaths? We must be fair. However, my personal opinion regarding the ICC decision is that it convicted Al-Bashir of the crime of genocide, which I do not think is a crime that can be implemented in Al-Bashir’s case. However, I agree with he who says that Al-Bashir committed crimes against humanity because there are those who were killed by aircraft, and the army forces do not absolve the president of the country from his responsibility. Nevertheless, I do not think he had the specific desire or the criminal intent to eradicate the other side. This is where the mistake lies.

[Asharq Al-Awsat] What about the Goldstone report?

[Bassiouni] It was a report that was issued by the UN. It was just and courageous especially since Goldstone is Jewish. This is something that is encouraging for the Palestinians to find a Jew that would be fair to them. However, later on and because of pressure from Israel and Jewish groups against him he backtracked somewhat on this report. But the report was in its place. It proved that there is a policy adopted by the Israeli Government against the Palestinians in Gaza, a policy of collective punishment for the Palestinian people. This is obvious through the siege of Gaza that has lasted over five years. This in itself is regarded as a war crime. The international human law applies to Israel. As for the lack of movement by the UN or the ICC general prosecutor toward this report, then it is fair to say that a political element has contributed to limiting the adoption of this fair report.

[Asharq Al-Awsat] What are your thoughts on the issue of human rights in the Arab and Muslim world? Do you believe that the view of the governments toward human rights is bad?

[Bassiouni] It is more than bad because the Arabs have a kind of natural intelligence. An illiterate Arab can explain to you the political circumstances around the world by natural instinct and intelligence. You will find that any Arab scientist in any western country is successful and this is because of his ability to adapt. However, the social, political, and economic system does not allow the Arab person to shine. In Egypt, the military dictatorship regimes lasted around 60 years before the revolution exploded, meanwhile, in Bahrain which is a small country, managed to become an international financial center. It adopted the reform path over the past 10 years…practicing democracy requires other demands, and honestly Arab countries have yet to reach this degree of maturity.

[Asharq Al-Awsat] Do you believe that the Arab spring is a point of transformation toward liberty?

[Bassiouni] There is no doubt that the Arab spring is regarded as a point of change if we look at it in a comprehensive way. The Arab world until the 12th century was a large empire, but then it shrunk. We Arabs became part of non-Arab empires. We remained under the Ottoman Empire from the 15th century until 1918. Many Arab countries only recently gained independence but we have entered a European imperial system. We have seen monarchies and military regimes. However, there are progressive monarchies in the West and the Tunisian regime at first was close to democracy as was the Bahraini regime for the past 10 years, and Kuwait. There are also static monarchies and military regimes. In Bahrain there is the capability to develop; the king is open and this gives the opportunity for advancement. In Egypt, there was no such opportunity and therefore there had to be an explosion and this is what happened there.

[Asharq Al-Awsat] There are some who believe that the Egyptians did not do right by Mubarak by slandering and trying him. What do you think?

[Bassiouni] Hosni Mubarak allowed the creation of a regime that first took advantage of the Egyptian people and the resources of Egypt for its own interest and for the interests of its sons and a certain group. Public money was squandered in this direction and this is considered one the great crimes. At the same time, in the era of this regime, the average number of prisoners for political reasons over 30 years of its rule reached around 15,000 prisoners annually. The state security investigators used to take people to prison for six months, and the wheel continued to turn. In Egypt, there were no less than 2.5 million people who entered prison for political reasons. Those who were tortured reached hundreds of thousands. Many people were killed during torture. Nevertheless, I was the only one who said in an article published in the Al-Shuruq magazine that he must be “respected during his trial” because he was the symbol of the country. We must show dignity and forgiveness as Arabs and look at he who committed crimes against us with mercy and forgiveness.

[Asharq Al-Awsat] Let us return to Bahrain. Did the fact-finding committee in Bahrain have the blessings of the UN?

[Bassiouni] Yes, the UN was about to send an administrative committee from the UN staff. It wanted to send people who work in the UN bureau in Geneva to look into the matter. However, when they learned about the appointment of this committee they preferred to give this committee chance to work. Following the announcement of the report they can either be convinced or send their own committee. Meanwhile, UN Secretary General Ban Ki-moon praised the formation of this committee and its credibility.

[Asharq Al-Awsat] What about the use of domestic and foreign legal reports in your work?

[Bassiouni] We will make use of all sources whether they are government, private, or individual. We started work to gather information. We have an entire team of investigators and I am not about to reveal the number of team members for certain reasons. However, the capability of one person is equivalent to that of ten people. We preferred to rely on the dynamic motion.

[Asharq Al-Awsat] Will your report include naming some people or senior officials in the country who had committed violations?

[Bassiouni] If these violations are clear then there is no doubt that they will be announced in the report whether they are government officials or civilians. However, the fact-finding committee is different to the police or prosecution. The aim is not to determine the identity of this person or that or try to pursue him. The aim is to understand how circumstances developed and brought about these events and to identify the mistakes in the system in order to avoid them in the future.