By Erika Schlager CSCE Counsel on International Law From October 4-15, 2004, the participating States of the Organization for Security and Cooperation in Europe met in Warsaw, Poland, for a Human Dimension Implementation Meeting.  Each year, the OSCE convenes a forum to discuss the participating States’ compliance with the full range of their OSCE human dimension commitments agreed on the basis of consensus. The United States Delegation was headed by Larry C. Napper, former Ambassador to Kazakhstan and Latvia.  He was joined by Ambassador Stephan M. Minikes, Head of the U.S. Mission to the OSCE; Ambassador Michael G. Kozak, Acting Assistant Secretary of State for Democracy, Human Rights and Labor; Ambassador Edward O'Donnell, Department of State Special Envoy for Holocaust Issues; J. Kelly Ryan, Deputy Assistant Secretary of State for Population, Refugees and Migration; and Matthew Waxman, Deputy Assistant Secretary of Defense for Detainee Affairs.  Members of the staff of the Commission on Security and Cooperation in Europe also participated in the delegation. In the tradition of engaging accomplished individuals from the private sector with human rights expertise, the U.S. Delegation included several public members:  Gavin Helf and Catherine Fitzpatrick, both experts on the countries of the former Soviet Union; Frederick M. Lawrence, Anti-Defamation League; and Mark B. Levin, Executive Director, NCSJ: Advocates on behalf of Jews in Russia, Ukraine, the Baltic States & Eurasia. Broad Range of Issues Reviewed During the first week of the meeting, formal sessions were devoted to a review of the implementation by participating States of the full range of their human rights and fundamental freedom commitments.  During the second week, three days were devoted to topics chosen by the Chair-in-Office, in consultation with the participating States.  This year, the special topics were: the promotion of tolerance and non-discrimination (following up on extra-ordinary conferences held earlier this year on anti-Semitism and on racism, xenophobia and discrimination); freedom of assembly and association; and “complementarity and co-operation between international organizations in promoting human rights.” At the meeting’s mid-way plenary session, the United States expressed particular concern about the deteriorating situation in Turkmenistan.  In 2003, ten OSCE participating States took the unusual step of invoking the "Moscow Mechanism" for the first time in a decade.  They were prompted to do so after Turkmenistan authorities reacted to an attack on President Saparmurat Niyazov's motorcade on November 25, 2002, with a widespread human rights crackdown marked by torture, disappearances, and an escalation of Stalin-era practices.  Turkmenistan refused to cooperate with the mission established under the mechanism and, in 2004, refused to renew the accreditation of the Head of the OSCE Office in Ashgabat, Parachiva Badescu.  Although Turkmenistan again declined to send representatives to participate in the HDIM, the United States argued to the participating States that sustained OSCE engagement on these matters is necessary to counter Turkmenistan’s increasing self-isolation. "Why is it that only the United States helps democracy in Belarus?  Where is Europe?" --Human rights activist from Belarus The need to protect human rights while countering terrorism was a strong theme throughout this year’s meeting.  In addition, the deteriorating situation for human rights defenders in much of the former Soviet region, concern about the elections in Belarus and Ukraine, the failure to implement meaningful reforms in Uzbekistan, and the plight of refugees and internally displaced persons, including Roma from Kosovo, were other issues raised.  In the second week session devoted to tolerance, the United States argued that the Chair-in-Office should appoint two personal representatives to address the problems of anti-Semitism as well as racism, xenophobia, and discrimination. As at past human dimension meetings and meetings of the OSCE Permanent Council, the United States was criticized for retaining the death penalty, contrary to the abolitionist trend among other OSCE participating States. At present, the only other OSCE countries that still officially apply the death penalty are Belarus and Uzbekistan. A U.S.-based nongovernmental organization repeatedly criticized the United States for failing to provide citizens of the District of Columbia the right to voting representation in the Congress.  Belarus issued even more sweeping criticism of U.S. electoral practices. Coming just days before Belarusian elections that the OSCE Election Observation Mission subsequently concluded “fell significantly short of OSCE commitments,” the rebuke by Belarus appeared to be a cynical move to preempt or deflect criticism of its own shortcomings. The abuse of prisoners at Abu Ghraib was condemned by both governmental and non-governmental speakers.  In addition, some participants criticized the United States for the use of military commissions to try alleged terrorists and for a 2002 Department of Justice memorandum that outlined legal defenses and loopholes that might be used to evade statutory and international legal prohibition against torture. Side Events Add Substance One of the striking features of this year’s meeting was the significant increase in the quality and quantity of side events held in conjunction with the formal sessions.  Side events may be organized at the site of the meeting by non-governmental organizations, OSCE institutions or offices, other international organizations, or participating States.  They augment the implementation review by providing an opportunity to examine specific subjects or countries in greater depth.  Like the “corridor” discussions and informal meetings that are part and parcel of any OSCE meeting, side events are also a vehicle for discussing and promoting OSCE action or decisions.  In some instances, side events have presaged the deeper engagement of the OSCE participating States with a particular subject – for example, side events organized by non-governmental organizations on the problem of hate propaganda on the Internet prompted a more in-depth focus on this issue at an OSCE meeting hosted by France earlier this year.   Side events can also help fill gaps in the implementation review process. This year, in the aftermath of the Beslan tragedy, most governments were reluctant to raise the problem of human rights violations in Chechnya.  Nongovernmental groups, however, organized a side event to provide a forum to focus on these issues.  They argued that, while the problems in Chechnya may seem intractable, human rights abuses do diminish when they are raised with the Russian Government. In an effort to respond to concerns about detainee abuse, the United States organized a side event on the subject of detainee issues.  Department of Defense Deputy Assistant Secretary Matthew Waxman, head of a newly-created DOD office for detainee affairs, discussed steps taken by the United States to address the abuse of detainees at Abu Ghraib and elsewhere and to prevent such incidents from reoccurring.  The event was open to all participants in the HDIM and, following the presentation of his remarks, Waxman opened the floor for questions. Azerbaijani officials prevented one human rights defender and religious freedom activist from attending the Warsaw meeting.  On October 6, authorities at the Baku airport blocked Imam Ilgar Ibrahimoglu from boarding his Warsaw-bound flight.   Ibrahimoglu was set to attend the HDIM session on religious freedom and speak out against the forcible seizure of his congregation’s mosque earlier this year.  (Similarly, two Kazakhstani human rights activists, Amirzahan Kosanov and Ermurai Bapi, were prohibited from leaving their country last year in an apparent attempt to prevent them from participating in the HDIM.)  On a more positive note, the meeting may have contributed to a favorable decision by the Armenian Government to approve a long-standing application by Jehovah’s Witnesses to be officially registered as a religious organization.  During the meeting, the U.S. House of Representatives and the United States Senate passed the Belarus Democracy Act (on October 4 and 7 respectively). NGOs Rebut “Astana Declaration” At the closing session of the HDIM, 106 human rights advocates from 16 countries presented a declaration countering criticism by several former Soviet states of the OSCE’s human rights work.  (On July 3, 2004, nine OSCE countries – Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Ukraine and Uzbekistan – issued a statement criticizing the human dimension activities of the OSCE.  A subsequent document signed in Astana, Kazakhstan by eight of the above signatories claimed that there are double standards in fulfillment of OSCE commitments concerning democracy and human rights.)  An NGO spokesperson also urged the OSCE participating States to continue to focus on the issue of freedom of assembly. "The most important principle of international affairs ingrained in international legal documents--'respect for human rights is not an internal affair of a state'--must remain unshakable and must be defended." -- Statement signed by human rights advocates and presented at the closing session of the 2004 OSCE Human Dimension Implementation Meeting In a press release issued on October 14, 2004, Helsinki Commission Chairman Rep. Christopher H. Smith (R-NJ) welcomed the NGO declaration.  “While many of the men and women who signed this document engage in human rights advocacy at considerable personal sacrifice and risk, they have clearly stated – in their words – their ‘categorical disagreement with the negative evaluation of OSCE activity.’” This year’s HDIM drew record attendance by 220 nongovernmental organizations from across the region.  This is the only multinational human rights meeting in Europe where non-governmental organization representatives and government representatives may speak with equal status. As at past meetings, the United States held extensive bilateral meetings with government representatives.  In many instances, the focus and scope of those meetings reflected the presence of experts from capital cities.  Additional meetings were held with OSCE officials and representatives of nongovernmental organizations.  In the second week of the HDIM, Human Rights Directors from the OSCE countries also held a working meeting to discuss issues of mutual concern. Looking Ahead With a view to the 2005 calendar of human dimension activities, the United States suggested that there are several subjects that deserve focused attention next year.  These include: migration and integration; protection of religious freedom in the fight against terrorism; the challenges of new election technologies, such as electronic voting; and the role of defense lawyers.  The United States also welcomed the Spanish offer to host a follow-up event on tolerance next year in Cordoba and recommended that next year’s HDIM should include another special topic day on the fight against anti-Semitism, racism, xenophobia and discrimination.  The United States proposed that at least one of the Supplementary Human Dimension Implementation Meetings next year be held outside of Vienna, in order to make the meeting more dynamic and allow participants to take part who might not normally be able to travel to Vienna.  (Since 1999, three Supplementary Human Dimension Meetings have been held each year.  Existing modalities allow for them to be convened in various locations but, so far, all have been held in Vienna.) During the closing session, the Dutch Delegation, on behalf of the 25 European Union member states and four candidate countries, noted that there had been insufficient time to address the agenda items during the first week of the HDIM and, during the second week, more time than some subjects warranted.  For example, there was insufficient time to accommodate all those who wished to take the floor during the discussion of national minorities and Roma; the session on freedom of speech and expression was held to standing-room capacity.  By contrast, the session mandated to discuss the OSCE’s “project work” closed early – as it has every year since the subject first appeared on the meeting agenda – when the speakers’ list was exhausted before the end of the allotted time.  Office for Democratic Institutions and Human Rights (ODIHR) Director Christian Strohal agreed that "we should adapt our time management." Changes might also, conceivably, be made to the process of compiling a summary of the “recommendations” made at the meeting, a process that grew out of a desire to have a more substantive record of the meeting (in addition to the little-known but publicly available Journals of the Day).  In fact, these summaries have generally turned out to be an unsatisfactory product, notwithstanding the considerable effort of those tasked with producing them.  By definition, summaries must leave a great deal out, and both governments and nongovernmental organizations have complained when their particular recommendations are among those omitted.  Moreover, the summary of recommendations is usually scrubbed of any country-specific recommendations, leaving only anodyne boilerplate language.  In its opening statement at this year’s HDIM, the Netherlands, on behalf of the European Union and four candidate countries, argued that the process of compiling ever longer recommendations had become “non-productive and counter-productive.” At this year’s meeting, the ODIHR launched a highly effective new documents distribution system.  Through a bank of computers on site, participants were able to print copies of any document submitted for circulation.  (This replaced a paper system of distributing all copies of all statements to all participants.)  Moreover, this system allowed participants to email any document, making targeted distribution much more efficient and environmentally friendly.  With the full texts of interventions and additional written material so easily available, the rationale for creating a written summary of recommendations for the benefit of those who were not able to attend the meeting is less compelling. The United States Helsinki Commission, an independent federal agency, by law monitors and encourages progress in implementing provisions of the Helsinki Accords.  The Commission, created in 1976, is composed of nine Senators, nine Representatives and one official each from the Departments of State, Defense and Commerce.

The Helsinki Commission held a briefing on the path to justice in southeastern Europe on October 7. Presenting his remarks at the briefing was Judge Theodor Meron, President of the International Criminal Tribunal for the former Yugoslavia (ICTY). Judge Meron began his remarks by underscoring the immensity of the task at hand. The vast scale of the crimes committed during the Yugoslav conflict, he said, "the murders, the rapes and deportations, the acts of torture, destruction and cruelty, would dwarf the capacity of any single court to bring more than a partial, a very partial reckoning." Nevertheless, he said, the tribunal struggles on, patiently and temperately disclosing the truth, giving the victims "a chance to see their sufferings recorded and at least in some small measure vindicated." Judge Meron asserted that the tribunal demonstrates the viciousness of those who built their power with hate-filled beliefs and sends a compelling message "that only through genuine reconciliation can all the peoples of the former Yugoslavia create thriving societies." Helsinki Commission Chairman Rep. Christopher H. Smith (R-NJ) and Ranking Member Rep. Benjamin L. Cardin (D-MD) underscored the important role the tribunal plays. In his opening remarks, Chairman Smith explained that the court was a way of helping to break the climate of impunity and "ensuring that those responsible for heinous crimes would be held to account." Commissioner Cardin, likewise, described strong United States support for the court, saying that the United States Congressional Delegation to the OSCE Parliamentary Assembly has raised the war crimes issue at every annual meeting in the last decade. Cardin has sponsored numerous initiatives over the years aimed at bolstering support for the work of the ICTY. The United States took a leading role in the creation of the ICTY, and funds approximately one quarter of its annual budget. Given the significance placed on the ICTY and its mission, three issues were highlighted: the compliance by participating States with ICTY demands; the implications of the ICTY's completion strategy; and, the procedural methods of the court. All three participants insisted on compliance from states in turning over indictees and granting increased access to evidence and archives. Commissioner Cardin recalled that "there are still indictees who have not been turned over to The Hague. Some highly visible indictees, such as Mladic and Karadzic, we've now been talking about for too many years." Judge Meron contended that while states in the region have increased their cooperation, such cooperation still needs to be made more complete. Sixteen indicted individuals, he explained, are still at large, including Serb army chief Ratko Mladic, Serb leader Radovan Karadzic, as well as Ante Gotovina, one-time Commander of the Split Military District. Meron said that the international community needs to use what he regards as its considerable leverage with the countries of the region to convince them to arrest and deliver to The Hague the most senior people allegedly responsible for war crimes. Meron noted improvements from Serbia-Montenegro, stating that he is "encouraged by the emerging spirit of cooperation in Belgrade which has produced some significant results in the last year." But, he said, more needs to be done. Serbia, he argued, must arrest Mladic, whose whereabouts, it is believed, are known; improve access to archives; and end the bottleneck in meeting the demands presented by the ICTY prosecutor. Meron said the tribunal is also "expecting maximum cooperation...from Zagreb" and insisted that "there is no bias or preference of the target of our cooperation." Judge Meron, however, reserved particularly harsh words for Republika Srpska. That entity of Bosnia-Herzegovina, he said, "has not been cooperating at all.... There has been no compliance on their part, and much more international pressure is needed." With UN Security Council deadlines for completion approaching, Chairman Smith expressed his concern that key indictees would decide to simply wait out the tribunal's mandate. Judge Meron assured the Commission that the tribunal "will not move toward any closure before we have people like Mladic, Karadzic, and Ante Gotovina at The Hague." Smith expressed his full support for such a policy, stating that "to allow people like Mladic and Karadzic to escape justice by running out the clock would be a gross violation of human rights in and of itself." As part of the ICTY's completion strategy, Judge Meron said the court intended to transfer some low- to mid-level cases from the ICTY to competent courts in the region, in particular the special war crimes chamber within the newly reconstituted State Court of Bosnia-Herzegovina in Sarajevo. He expressed his appreciation to the international community for supporting this body and hoped that the United States and others would follow through on their promises for generous financial contributions. In addition to improving the legal capacity to try war criminals, Meron praised the Sarajevo court for the training it will provide to lawyers and judges in the area and "the message of democracy and the rule of law that will be triggered by such a court." Because of the fragility of the social system in Bosnia-Herzegovina, every bench of the Sarajevo court will have two international judges and only one local judge. He expressed his desire that, over time, the social environment will change to allow the composition to be reversed to give more significant representation to local judges. When asked whether cases could be transferred to war crimes chambers and courts elsewhere in the region other than the Sarajevo court, Judge Meron said he did not believe it feasible at the moment. At the same time, he argued, "War crimes trials have the greatest resonance when they take place very close to the theater of crime, the place where the crimes have been committed, where the victims or their families still live." He said, therefore, that it was his hope to have "more and more trials conducted in the area." Given the approaching of Security Council deadlines, Judge Meron also discussed some procedural changes the ICTY has adopted in its completion strategy. He described several internal initiatives made by the court attempting to improve efficiency. The tribunal has reformed its procedures for interlocutor appeals to reduce the number of interruptions in the trial and has restricted prosecutorial evidence that judges deem duplicative or unnecessary. Its ability to finish working in a timely fashion, he said, also depends on the choices the prosecutor makes on future indictments. In response to a question from the audience, Judge Meron commented about the tribunal's sentencing procedures. The tribunal has at times been accused of meting out sentences that are not commensurate with the gravity of the crime committed. Others have accused the tribunal of passing sentences for some defendants that were much greater than sentences for others convicted of similar crimes. Without sentencing guidelines from the Security Council, Judge Meron said, the tribunal has had to create its own common law. He stated though that he had "no reason to believe that as a general proposition our sentencing has not been within the parameters of what I would consider to be just and reasonable." Nevertheless, Judge Meron said, he has formed a working group of several judges to address the sentencing issue because he believes there is no aspect of the tribunal's activities that cannot be improved further. The tribunal, according to Judge Meron, represents an enormous experiment in international cooperation. Starting almost from scratch, the ICTY had to create its own rules of procedure and evidence. This effort, the judge claimed, will have an impact even beyond the specific crimes considered. He concluded, "The sort of judgments that we will leave behind from very detailed problems of definitions of international crimes, on the interpretation of the evidence, on the conflicts of evidence, on how to reconcile the notions of common law and civil law, will prove to be, I think, a very important legacy to us all." This briefing was the latest in a series of United States Helsinki Commission events and other activities this year intended to promote justice in southeastern Europe through improved cooperation with the ICTY. The United States Helsinki Commission, an independent federal agency, by law monitors and encourages progress in implementing provisions of the Helsinki Accords. The Commission, created in 1976, is composed of nine Senators, nine Representatives and one official each from the Departments of State, Defense and Commerce.