The United Nations should establish an investigation commission to collect evidence about war crimes in Syria to prepare the ground for any future investigation, leading Arab international law expert Cherif Bassiouni told Foreign Policy during a wide-ranging interview yesterday following his talk at George Washington University's Institute for Middle East Studies [videos of both the interview and the talk will be posted shortly]. He warned that Yemen's Ali Abdullah Saleh should not count on his immunity deal holding up, discounted the ability of Libya's courts to try Saif al-Islam Gaddafi, and blasted Egypt's post-revolutionary trials as focusing on flimsy, marginal cases which avoided dealing with systemic, institutionalized corruption.
Also, he explained that Moammar Qaddafi was a sex addict whose heavy use of Viagra badly affected his decision-making -- which could complicate the ICC's efforts to convict Saif al-Islam (FP's web editors wanted that to be the lead, for some reason).
Bassiouni chaired Bahrain's Independent Commission of Inquiry, which documented and reported on the violations of human rights during last year's crackdown on the protest movement and offered a set of recommendations for reform (it can be downloaded here in PDF form; nobody should be opining on Bahrain these days without reading and internalizing its details). Our conversation began there.
Bassiouni naturally defended the efforts and impact of the BICI. He argued that the creation of the BICI itself deserved some credit: "this is the first time in the Arab world in which a national government established a totally independent international commission to investigate its own violations." The Commission had total independence and access, he argued, even when his team knocked on prison doors at 2am to interview prisoners, and at the end "we produced a report which we read in the face of the King and the Prime Minister and 600 senior officials, which felt like reading an indictment." I tend to agree with Bassiouni that the report's documentation of the regime's abuses will be an enduring contribution, regardless of the implementation of the recommendations -- those violations can never disappear down the memory hole or be denied by regime apologists. They bear witness, and that matters.
Our evaluation of the Bahraini government's implementation of the BICI recommendations differed, however. I pointed to the regime's very limited reforms, the regime's refusal to concede in the face of Abd al-Hadi al-Khawaja's hunger strike, and Amnesty International's blunt conclusion that not much has changed. I relayed the view of many Bahrainis that the government's response to the Commission's recommendations might check off the boxes while stripping them of their meaning, and the ongoing examples of repression and abuse. But he pleaded for a case by case approach. Where efforts have lagged, he pointed to limited institutional capacity, such as a thinly staffed and trained Attorney General's office. "There has not been a single reported case of torture" since the Commission began its work, Bassiouni argued, while also pointing to the release of some detainees, the establishment of a follow-up commission, and other efforts by the government to respond to the BICI recommendations. "I know we did some good."
But if he offered a sympathetic view of the Bahraini government's "treatment of the symptoms," he offered scathing critique of its failure to undertake any deeper political or social reforms. Such broader issues lay outside the BICI's mandate, which only extended to specific human rights violations. Bassiouni's defense of Bahrain's response to the BICI recommendations may be music to the ears of a regime eager for international rehabilitation, but they should pay equal heed to his pessimistic views about the Kingdom's political future. He is clearly disturbed by the emerging trends towards radicalization and the disappearance of the political center in Bahrain, and disappointed with the regime's failure to offer genuine political reform. The core of the problem remains the absolute hold on power by the Sunni minority. "That can't be. Things have to change. These are the causes. Unless you change the causes, they are still going to have these problems."
On Yemen, Bassiouni argued that the immunity arrangements for former President Ali Abdullah Saleh would not likely stand up any more than did promises made to former Liberian President Charles Taylor. The demands of justice might have to wait for a new political constellation, in Yemen and internationally, but the GCC immunity deal had no real legal standing. "The fact that there is a political deal at a certain time... is not binding." International law now demands individual accountability for certain crimes, which states do not have the power to waive. Nor does any sort of "former President" status protect him even if offered at home. Those outraged by the impunity granted to Saleh and his people might find some comfort in this view of the transient nature of such guarantees.
Should Syria's Bashar al-Asad be indicted by the International Criminal Court? Not until the evidence has been collected, argued Bassiouni. "I was very concerned with having the Security Council refer the Libya matter to the ICC before the investigation. I have a sense of orderliness about things. Do the investigation first, see what the evidence is, and then indict. You don't start by indicting without getting the evidence." Evidence collected only from abroad and from partisan sources could not suffice, he warned. "Mr. Okampo never had the opportunity to go to Libya to investigate, never had the opportunity to investigate in Darfur. When indictments come out on some evidence gathered from abroad, it undermines the legitimacy of the court. Me fear is that if we do the same with Syria it is simply going to add to it." Such a warning is well taken given the intense politicization of information about the violence in Syria today.
But this problem should not take the instruments of international justice out of the crisis in Syria. Instead of an ICC referral, Bassiouni "would strongly recommend having an investigative commission as was established by the Security Council in the former Yugoslavia." That commission, which Bassiouni chaired for several years, produced a 3500 page report backed by massive documentation which ultimately formed the basis for the efforts of the International Criminal Tribunal for Yugoslavia. He urged the same for Syria. But he also warned about repeating the mistakes of the troubled Special Tribunal for Lebanon were such a Special Tribunal for Syria to be established -- a warning which all advocates of international justice in Syria should take seriously.
Finally, about Qaddafi's Viagra. This came up in our discussion about the competing claims on Saif al-Islam Gaddafi by the ICC and the Libyan interim government, and whether Libyan courts could possibly be "capable and willing" to try him and other top regime officials. "Absolutely not" at the current time, he answered, though it would not be impossible to create an effective body with 5-10 good judges and some training, capacity building, and international support. Such a trial would be conducted according to local law, however, which would not necessarily accord with the statutes of the ICC.
But Saif personally posed another problem for prosecutors: establishing his role in his father's demonstrably paranoid and capricious decision-making. And here Bassiouni did, indeed, begin to speak about Qaddafi's sex addiction. (I started coughing right about then, as you'll see in the video). Qaddafi, he argued, had serious psychiatric problems for which he had long been self-medicating. He was extremely secretive and paranoid. On top of that, well, let's go to the tape: "Most people don't know, he was almost addicted, he had sexual addiction, consumed enormous amounts of viagra and other similar pills, which had a very serious negative effect when combined with his other medication." How did Bassiouni know this? Sometimes, it's perhaps better not to ask.