Michael S. Greco
American Bar Association Past President
Chair, Advisory Council, ABA Center for Human Rights
Harvard University Kennedy School of Government
Annual Dinner Keynote Address
Tran Nhan Tong Reconciliation Prize
Harvard Faculty Club
Cambridge, Massachusetts
September 21, 2012
I am honored to be with you this evening and to be part of the inaugural
presentation of the Tran Nhan Tong Reconciliation Prize, awarded to two deserving
individuals: one a human rights champion and the other a president, both of whom seek
to reconcile Burma’s long history of oppression with a just rule of law for the Burmese
people.
As we have heard, Tran Nhan Tong was King of Vietnam nearly a millennium
ago. Under his rule Vietnam was the only country to defeat the Mongol army of Kublai
Khan — and to do it twice. Yet at the height of his power and influence, he abdicated his
throne to become a monk and pursue his vision of a country dedicated to reconciliation
and peace.
Tran’s example recalls George Washington, who also gave up power in service to
a broader and brighter vision. When a vanquished King George III asked the American
painter, Benjamin West, what Washington would do after winning independence, West
replied, “They say he will return to his farm.”
“If he does that,” said the king, “he will be the greatest man in the world.”
Washington did; and to many, he was.
1
In Burma and throughout the world, Aung San Suu Kyi has earned a similar
greatness — as a duly elected but denied president who has “lived” her commitment to
human rights through steadfast and personal sacrifice. In President Thein Sein, she now
has a government partner in securing the rights and human dignity of their fellow
citizens. As they know better than anyone, Burma is a country whose future depends on
a meaningful societal reconciliation — not only to overcome decades of abusive military
rule, but to ensure that all the people of Burma, whatever their ethnicities, are treated as
equal.
In remarks three days ago at the United States Institute of Peace in Washington,
D.C., Aung San Suu Kyi said,
There are still hundreds of political prisoners in Burma today. They will all have
to be freed. If you talk about genuine democratization, there should not be a
single political prisoner in the country. There should be no prisoners of
conscience, because in a genuine democracy, people should be able to act in
accordance with their conscience so long as they’re not infringing on the rights of
others.
She also said,
Human rights and the rule of law: these cannot be ignored [in Burma]. And that, I
think, has to be accepted by all the responsible parties. To ignore either human
rights or the rule of law, or to ignore human rights and pretend that rule of law is a
different matter, won’t work. Nor will it work the other way around – you cannot
say we must have rule of law, but human rights is something we will think about
later. These two have to go together.
2
Reconciliation *
Reconciliation is a complex, multi-faceted, and nuanced subject. Linked both to
the healing of victims and the telling of truths about international crimes, which together
form the basis of a society moving beyond upheaval and ruptures, it has been claimed
that providing a sense of justice through prosecutions for international crimes can
facilitate societal reconciliation and provide the preconditions for a durable peace.
This notion is often expressed in the aphorism “no peace without justice.”
Evidence from Latin America, where policies of amnesty were rife in the 1970s but
where prosecutions have continuously been demanded and recently have begun to occur,
provides some support for that position.
The UN Security Council provided significant support for the interconnection of
peace and justice when it determined in the situations in the former Yugoslavia and
Rwanda that prosecutions would assist in reconciliation and a return to peace in the area.
Perhaps the best statement of support for the link between criminal justice and peace in
the former Yugoslavia came in the decision of the International Criminal Tribunal for the
Former Yugoslavia (ICTY) in the Plavsic case.
Biljana Plavsic was co-President of the Republika Sprksa during 1992. She
surrendered to the ICTY and pleaded guilty to crimes against humanity, expressing her
remorse and stating that in doing so she wished to “offer some consolation to the
innocent victims - Muslim, Croat and Serb - of the war in Bosnia and Herzegovina.” In
sentencing Plavsic to eleven years imprisonment, the Tribunal noted that
“acknowledgement and full disclosure of serious crimes are very important when
establishing the truth in relation to such crimes. This, together with acceptance of
responsibility for the committed wrongs, will promote reconciliation.”
______________________________
* These remarks benefited from research regarding the history of reconciliation in An Introduction to
International Criminal Law and Procedure (2d Ed. 2010) by Robert Cryer, Hakan Friman, Darryl Robinson
and Elizabeth Wilmshurst, for which I express gratitude to the authors.
3
Those who doubt that international criminal law promotes peace and
reconciliation believe that requiring prosecutions will cause more bloodshed, with parties
to conflicts fighting to the end. On the other hand there is anecdotal evidence that the
International Criminal Court (ICC) indictments and prosecutions since the Court began
operations in 2002 have had a deterrent effect in the Democratic Republic of Congo. It is
still early to say whether the optimists or pessimists are correct.
It is worth noting that 121 States Parties to the ICC Statute now have affirmed, in
the Preamble to the Rome Treaty that the commission of international crimes threatens
the “peace, security and well being of the world.” It is also important to note that the UN
Security Council has the authority directly to affect the ambivalent relationship between
international criminal justice and peace by using its power to restore and maintain
international peace and security under Chapter VII of the UN Charter by deciding not
only to refer a situation to the ICC, but also to defer an ICC prosecution if circumstances
warrant.
Closely related to the dichotomy and interplay of international criminal justice
and peace and reconciliation are the subjects of amnesty and truth commissions.
Those who speak in favor of granting amnesties to advance reconciliation claim
that amnesties are necessary to bring an end to conflicts, and that to insist on anything
more is to condemn others to death or serious human rights violations as combatants, and
others will refuse to relinquish their weapons or power without promises of amnesties.
Others see the grant of amnesties as giving in to blackmail, fostering a culture of
impunity that denies retribution to criminals and justice to untold thousands of massacred
and suffering human beings, and encouraging the future commission of international
crimes. Granting amnesties, therefore, is considered by its opponents to undermine the
deterrent function of international criminal law, and to represent an ugly political
compromise. Sometimes this compromise is also seen as one between powerful elites
who bargain away the rights of victims with little regard for their human dignity.
4
Conversely, its proponents (especially the perpetrators of crimes) urge that
amnesties promote reconciliation between previously antagonistic parties, and allow
populations to “move on” from the past. Opponents respond by arguing that “it is
difficult to imagine how society can liberate itself from a past in which impunity,
lawlessness and abuse of power have prevailed, unless respect for the basic principle of
individual criminal responsibility is resurrected.”
Perhaps the one thing that everyone can agree to in this debate is that
reconciliation is not a simple notion. For one example, while it is often assumed that
reconciliation is a social process, it is at least as much an individual one, between victim
and perpetrator. Also, it must be acknowledged that reconciliation, and its spiritual
partner, forgiveness, often draw upon religious notions that are not necessarily universal.
Indeed, some question the philosophical appropriateness of forgiveness for horrific and
unspeakable human conduct. What is certain is that reconciliation, like friendship,
cannot be forced upon people, and some victims will not wish to be reconciled with their
persecutors, particularly in the absence of genuine remorse.
With forgiveness, there is also the possibility of forgetfulness, in particular, of
victims. The term “amnesty,” as is often pointed out, shares a common Latin root
(amnestia) with forgetfulness: amnesia. With this comes the risk of increased denial or
the minimization of horrific international crimes. Not all amnesty processes provide for
revelations about committed horrors, and as such can lead to a refusal to acknowledge the
suffering of victims, or the extent of wrongdoing. In part because of the possibility that
amnesties will lead to forgetfulness or denial, one of the activities that often accompanies
them is the setting up of a truth commission.
A truth commission is often set up as an alternative to prosecution, especially
where the secret nature of many of the offenses makes it difficult, if not impossible, to
prove the relevant criminal standard. The idea behind many truth commissions is that
people will be more willing to tell about their criminal activities if they don’t face
prosecution for them. This can be important, for example, when people have
5
“disappeared” and relatives of victims do not know the fate of family members. Truth
commissions can also enable more victims to tell their story than is possible in a court
that has procedural and evidentiary rule restrictions. Some commissions, such as the
Guatemalan commission, have had the authority to make important recommendations for
reform.
One of the main purposes of truth commissions is to acknowledge the harm that
was done to the victims in an official report setting out the violations of their rights. The
report is useful not only to counter later denials, but also to provide a form of healing for
victims, and to provide the basis for societal reconciliation. The South African Truth and
Reconciliation report named names of alleged persecutors, while the Argentinean
commission did not have the authority to do so.
There can be other possible limits on truth commission reports. The South African
report, for example, only had the mandate to deal with political violence. It could not
deal with issues such as land dispossessions, forcible transfers and other aspects of
apartheid. Nor could it deal with the use and abuse of the legal and political system in
creating and maintaining the apartheid system. As a result it could only tell part of the
story of apartheid. In contrast, the Liberian Truth and Reconciliation Commission,
although intended to focus primarily on the post-1979 history of that country's conflict,
also looked into issues such as corruption, misgovernment and the role of third party
States.
Importantly, as occurred in South Africa, as part of the attempt to promote
reconciliation and help provide victims with some form of healing, victims were given
the opportunity to attend the hearings and discuss the revelations made by the
perpetrators. Much of the utility of a truth commission depends on the attitude and
cooperation of the perpetrators, and on whether the engagement they give to the process
is full, or combative and grudging.
6
Burma can look to several historical and relevant examples of national
reconciliation. One example, which I have just described, is that of South Africa after the
fall of apartheid, when President de Klerk and Nelson Mandela restored the human rights
of all South Africans. And, with “justice for all” rendered impossible by the sheer
vastness of evil wrought under apartheid, Archbishop Desmond Tutu led the nation
toward reconciliation through confession and forgiveness.
The Civil Rights Movement in the US is another example. A long-oppressed and
exploited minority, led primarily by the Rev. Martin Luther King, Jr., rendered the “selfevident truth” of human equality all the more evident through — as Dr. King described it
— their “unearned, redemptive suffering.” Although hard-won court victories provided
legal momentum to the Movement, righteous nonviolence in pursuit of integration and
reconciliation brought pivotal moral victories that law alone could not secure.
These and other examples demonstrate that reconciliation in fact is not a
destination, but an evolution. Dr. King famously observed that, “The arc of the moral
universe is long, but it bends toward justice.” Neither South Africa nor the United States,
nor Burma, nor any nation, can ever “arrive” at justice. The best we can do is to follow
that arc and, as the late Senator Ted Kennedy liked to say, “Keep our compass true.”
And so back to the question that begs for an answer: What is the role of the justice
system in securing reconciliation? For while struggle and sacrifice have characterized
the pursuit of justice throughout human history, that pursuit seeks an end at which justice,
if not perfect, is at least accessible, predictable, and fundamentally fair — an end at
which revenge and violence can no longer be deemed options for settling conflict.
Burma’s answer to this question will determine the future of its people, for
reconciliation’s ultimate test is obsolescence — meaning that the institutions erected
following reconciliation will be able to dispense justice in a way that protects and
promotes human rights, and thereby fulfills reconciliation’s essential purpose of
acknowledging past wrongs and establishing a durable peace.
7
As Aung San Suu Kyi has wisely counseled, “Where there is no justice there can
be no secure peace. [And] the true measure of the justice of a system is the amount of
protection it guarantees to the weakest.”
Fortunately, Burma can utilize bedrock international principles upon which to
build a sustainable justice system. Those principles include the International Covenant
on Civil and Political Rights, in particular Articles 2 and 14 -16, which proclaim in detail
the equality of all persons under a just rule of law, and the universal right of all persons to
have rights protected and wrongs remedied by a fair judicial process. As of this month,
nearly 170 countries have ratified or acceded to the Covenant. Burma has not yet
committed to doing so.
Proof of Burma’s commitment to these principles, as it is for countries that have
ratified the Covenant, is in the honoring of those principles, not merely in the committing
to do so. This new chapter for the people of Burma brings both an historic opportunity
and the moral obligation to enact, and effectuate, Burma’s commitment to these
principles, and thereby rejoin the international legal community.
International Criminal Court
As Burma rejoins the international community its commitment should extend, I
respectfully suggest, to international criminal justice -- specifically, to acceding to the
jurisdiction of the International Criminal Court. Just as Tunisia, where the Arab
Awakening was ignited did when one of the first acts of the new government was to
ratify the Rome Treaty that created the ICC, Burma can send a similarly strong and clear
message that it is joining the international community in the fullest sense.
The ICC was born of the dual conviction that, first, impunity for mass atrocities
— the kinds of horrific acts for which reconciliation has been necessary, such as
genocide, crimes against humanity, and war crimes — should no longer be possible in the
8
modern world; and that second, by eliminating impunity for perpetrators of atrocities,
future atrocities will be deterred.
The ICC and the ad hoc Special Tribunals have an important role in dealing with
the complex questions raised by reconciliation in conflict and post-conflict zones. The
rapid emergence and development of international criminal law has made the peace vs.
justice debate one of the most important conversations now occurring in the international
community.
The crux of the debate is the level of emphasis and deference to be given to
traditional diplomacy versus that given to criminal justice. While diplomacy and justice
are not mutually exclusive, we should recall the words of Dr. King, who said "[t]rue
peace is not merely the absence of tension; it is the presence of justice." Whether
through diplomacy or prosecution, or both, accountability for mass atrocities must occur.
Without it the real risk is creating a fragile peace that is only temporary and destructible.
Today, 121 nations have submitted to the ICC’s jurisdiction by ratifying or
acceding to the Rome Treaty, which established the Court in 1998 and entered into force
in 2002. While urging Burma to join these nations, I regret that the US has not yet done
so.
Nevertheless as the Obama Administration is demonstrating, there is much that
the US can do and should do, to promote the ICC’s vital mandate. I am pleased to inform
you that the legal profession in the US, led by the American Bar Association Center for
Human Rights through its new ICC Project, has undertaken a major initiative intended to
facilitate greater U.S. government engagement and cooperation with the ICC.
The ABA ICC Project
I will describe briefly the ABA’s ICC Project, of which I serve as Chair of the
Project’s bi-partisan, multi-national and distinguished Board of Advisors.
9
ABA Policy Regarding an International Criminal Tribunal
The ABA’s 550-member House of Delegates in 1978 called for the creation of a
permanent international criminal tribunal. Twenty years later the ABA — led by thenABA President Jerome Shestack, later a co-founder of the ABA Center for Human Rights
— was among the key NGOs involved in developing the Rome Treaty and the ICC
Statute. Since 1998 the ABA has been calling for U.S. accession to the Rome Treaty and
to the jurisdiction of the International Criminal Court and, until that happens, for
meaningful U.S. engagement with, and support for, the ICC and its vital work.
To that end, nine months ago the ABA Center for Human Rights through its Chair
entered into discussions with the leaders of the three organs of the ICC – the Presidency,
the Registry, and the Office of the Prosecutor -- regarding an initiative to address expert
constructive criticisms directed at the Court during its first ten years of operation. In
person meetings took place last December in New York during the bi-annual meeting of
the Assembly of States Parties, followed by telephone conferences and letter exchanges
in the ensuing months.
In early July I spent several days at The Hague with the ICC’s leaders in further
discussions on the terms of an ICC-ABA Memorandum of Understanding regarding the
sharing of best practices and training to be provided to ICC personnel under the auspices
of the ABA and its international partners by judges (from both Common Law and Civil
Law systems), prosecutors, defense counsel, and victims counsel during the coming
twenty-four months. Next Wednesday I will fly to The Hague again for discussions
regarding final details of implementation of the ABA ICC Project, which will commence
in mid-October.
We believe that the ABA ICC Project can foster greater U.S. engagement and
cooperation with the ICC in three ways:
10
First, by promoting practitioner engagement and training
-- The ABA ICC Project will marshal the full resources of the ABA and its team
of international partners to help train and share best practices with ICC personnel to
improve the efficiency and effectiveness of the ICC’s operations.
-- Legal exchange missions to the U.S. by international lawyers and judges, and to
The Hague by U.S. lawyers and judges, will be implemented.
Second, the ICC Project will facilitate direct engagement among and between U.S. and
ICC officials
-- The Project will establish venues for ongoing candid dialogue and debate
among ICC officials, U.S. policymakers, and stakeholders.
-- One forum will convene American proponents and opponents of the ICC to
discuss U.S. policy toward the Court and ICC-related current events.
-- Another forum will compare and contrast features of American and
international criminal prosecutions, such as investigation methods; evidence discovery
and its preservation and presentation; pre-trial detention; examination and crossexamination of witnesses; and appellate procedures.
-- Another forum will explore the policy reasons why support by the U.S.
Government of an effective international criminal justice system serves the interests of
the U.S. and the American people.
-- The objective of these forums and exchanges is to facilitate public and private
meetings between ICC and U.S. officials in order to build greater mutual trust and
understanding.
11
Third, the ABA will advocate for the ICC publicly and before the U.S. legislative and
executive branches
-- The ABA ICC Project will deploy ABA members and other representatives of
the legal profession to advocate for greater U.S. engagement with and support for the
work of the Court in protecting human rights and eliminating impunity for genocide,
crimes against humanity, and war crimes.
-- Where appropriate, the Project will facilitate advocacy in support of U.S.
legislation and executive branch action relating to the ICC.
-- In addition, the ABA ICC Project web site will help improve public
understanding of international criminal law and the role of the ICC.
The ICC Project Board of Advisors
To guide the Project’s efforts and to maximize their impact, the ABA Center is
assembling a bi-partisan ICC Project Board of Advisors comprised of eminent US and
international ICC experts, and leaders in international law, diplomacy and advocacy.
To date, the following individuals have agreed to serve on the Board, which will
have its first meeting in Washington, DC, on October 8:

Hon. Sandra Day O’Connor

Hon. Patricia Wald

Hon. Thomas Buergenthal

Hon. Phillipe Kirsch

Hon. Gabrielle Kirk McDonald

Ambassador David Scheffer

Ambassador Thomas Graham

Ambassador Thomas Siebert
12

Ambassador Hans Corell

Professor David Crane

Professor Cherif Bassiouni

William H. Taft, IV; and

Donald Ferencz
Additional distinguished individuals will be invited to serve as Advisors.
Purpose of the ICC Project
The purpose of the ABA ICC Project can be stated simply: to dispel myths and
misunderstanding that have impeded robust and reliable cooperation between the United
States and the ICC. By trainings that will address the efficiency and effectiveness of the
Court’s operations, and by bringing together all stakeholders on a regular basis to talk,
debate, and educate each other about what the ICC is, and what it isn’t; how the ICC
works; why it’s important; and who it helps, the ABA ICC Project will help secure both
the Court’s future and the cause of international criminal justice.
The ICC Project of the ABA Center for Human Rights will say to those in the
U.S. who may fear or doubt the ICC due to lack of knowledge or other reasons:
--
that the American legal profession believes in the need
for an effective International Criminal Court;
--
that the eminent, bi-partisan, members of the ABA ICC
Project Board of Advisors believe in the need for the ICC;
--
that support for the ICC not only serves the interests of
the United States and its people, but safeguards the
very values that we as a civilized people have long
cherished and protected;
13
--
that we are comfortable, and everyone in the US should be
comfortable, with the ICC and its vital role in the world.
Conclusion
I conclude by returning to the themes of our gathering tonight: justice, peace and
reconciliation.
Each of us, in our own ways and abilities, is obliged to seek and facilitate
reconciliation, justice and peace in whichever ways our minds, hearts, talents and
opportunities lead us. And this obligation belongs no less to human institutions —
including governments — than to the individual human beings who comprise and lead
them.
Aung San Suu Kyi perhaps said it best in her Nobel Peace Prize acceptance
speech, which she delivered as a free woman in June of this year – 21 years after she was
awarded the Prize. She said this:
Absolute peace in our world is an unattainable goal. But it is one towards which
we must continue to journey, our eyes fixed on it as a traveler in a desert fixes his
eyes on the one guiding star that will lead him to salvation. Even if we do not
achieve perfect peace on earth, because perfect peace is not of this earth, common
endeavors to gain peace will unite individuals and nations in trust and friendship
and help to make our human community safer and kinder.
I congratulate Aung Suu Kyi and President Thein Sein on receiving the inaugural
Tran Nhan Tong Reconciliation Prize. I wish them success in the important and difficult
work that lies ahead of them on behalf, and in protection, of the people of Burma.
And I thank you for your kind attention.
14