Frequently referred to as the father of international criminal law, Mahmoud Cherif Bassiouni led the Bahrain Independent Commission of Inquiry into events during unrest in February and March 2011. In a wide-ranging interview conducted by Al Jazeera’s Nick Clark at the IBA Annual Conference ahead of the unprecedented report’s publication, Professor Bassiouni provides unrivalled insight on this and numerous other crucial political, diplomatic and legal initiatives.

Nick Clark: Professor Bassiouni, it’s a privilege and an honour to be here on stage with you. Let’s get straight to the thick of it and the Bahrain Independent Commission of Inquiry, which was due to report its findings on 30 October, a couple of days ago, but you’ve asked for an extension. Why is that?

Professor Bassiouni: Well, we continued to receive submissions by the government and by the private sector. In fact it was not until yesterday that we received the final submission by one of the government agencies and so it became almost impossible to catch up with the submissions – both by the government and the private sector – and to be able to meet the deadline, especially because the report will be in two languages and we need to also very carefully formulate our recommendations.

NC: So now it will be published, it will be presented, on 23 November. Is that right?

PB: It will be on 23 November. As they say in the Muslim and Arab world, ‘God willing’, though I’m always reminded of this ‘God willing’ by the story of somebody from the West who gets on a plane and travels to a Muslim country and he hears the captain say, ‘We will arrive at our destination in X number of hours, God willing’ and the Western traveller turns to somebody next to him, very concerned, and said, ‘Do you know if there’s something wrong with the plane?’ Obviously, the assumption in the Western thinking is, if you have to invoke the good Lord and hope that, God willing, you will get there, it means that there’s a likelihood you won’t. So I’m looking at it from the Arab side of the God willing and Insha’Allah is just a wishful thinking in the sense that, yes, we will reach 23 November.

NC: When the Commission was established, it was established by Royal Decree by the King of Bahrain. Were you surprised that the Commission was established and with the kind of apparent breadth of investigation that you’re allowed to have?

PB: Well, for those of you who have followed the evolution of international criminal justice and what some call post-conflict justice and what others call transitional justice, the great rebirth of international criminal justice really happened in 1992 when, after a long period in the Cold War, which followed the events of post-World War II with the Nuremberg and Tokyo war crimes trials and the subsequent proceedings, conflict in the former Yugoslavia emerges and the Security Council establishes a commission to investigate.

This was a psychological breakthrough, so to speak. It broke through the Cold War era and mentality and brought the notion of international criminal justice at an international level which applies to all, as opposed to being focused on, for example, the defeated – or focused on a victor’s vengeance or a victor’s justice. In the case of the former Yugoslavia, the mandate by the Security Council was to investigate all parties to the conflict, irrespective of who they were. It was very difficult to establish that commission because there were a lot of reservations and a lot of concerns that stemmed from what I call realpolitik. You know, what is the right time to do it? There was the Owen and Vance Commission trying to establish a peace agreement. Was peace to take precedence over the pursuit of justice? international level which applies to all, as opposed to being focused on, for example, the defeated – or focused on a victor’s vengeance or a victor’s justice. In the case of the former Yugoslavia, the mandate by the Security Council was to investigate all parties to the conflict, irrespective of who they were. It was very difficult to establish that commission because there were a lot of reservations and a lot of concerns that stemmed from what I call realpolitik. You know, what is the right time to do it? There was the Owen and Vance Commission trying to establish a peace agreement. Was peace to take precedence over the pursuit of justice?

I never felt those difficulties because I thought... You know, if some of you read the Bible, you’ll see an extraordinary chapter called Ecclesiastes, which tells you there is a time for this and a time for that, and there is a time for everything and so, if you think of the investigative period, there is a time for investigation and you can get your evidence. You put it in the file and you wait for the right time for it to come out.

NC: But perhaps surprising that the King of Bahrain would sanction it, given what apparently had happened.

PB: The initiative by the King of Bahrain was the first in history. There’s never been a case before where a government nominated an international commission which was independent of the government, giving it the same privileges and immunities as UN staff, giving it whatever budget it asked for, segregating it, ordering all government agencies to collaborate and work with it and giving it total independence of action.

So that was an extraordinary first step and hopefully it will be the beginning of things similar because, if you think about it, there are many internal conflicts where a government may find it difficult to appoint a fact-finding body which is a national one and may also find it difficult to go to the United Nations. So, having, if you will, an international fact-finding body of individual experts chosen for their competence and integrity may accomplish multiple goals.

This was quite unique on the part of the king and I should add that, before accepting the mandate, I asked for the opportunity to meet with the king, which I did, and basically gave him what I diplomatically called my ‘wish list’ – because that’s the only way you can tell a king what you wish for, as opposed to saying, ‘Yeah, these are my demands or conditions’.

NC: Have all those wishes been answered? Has the flow of this investigation run smoothly? Apparently not.

PB: The flow of the investigation ran very smoothly. We didn’t have any impediments whatsoever. The government cooperated with us at all levels. We had total open-doors. I mean I can tell you, this is very unusual. We had access to every prison and every hospital in the country. Our investigators could go to any prison we wanted at any time of the day or night. You know, I think it’s well established that, ever since we came on the scene, there wasn’t a single allegation of mistreatment of a person, since we came on.

NC: I guess what I’m driving at here is... What about the press coverage, for example? There’s been a great deal of spin. You’ve come up with various quotes, various comments, about what’s happened so far. You can’t talk to any great extent about any results of the Commission naturally yet but words that you have taken have been taken out of context completely, and that must have made it very difficult for you and your people who have been operating there in Bahrain.

PB: Very much so. I was caught in a dilemma of wanting to reassure the government, the general public, the opposition, international human rights organisations, the media, of what we were doing. I thought that some element of transparency was necessary – obviously not the results – but what we are doing, what we are looking into, how we are proceeding, the volume of complaints that are coming. How do people come to us? How do we ensure people who have complaints that their privacy will be secured, that they won’t be retaliated against? That needed some communication. The problem is every time I tried to make such communications, as you said, there were, you know, at least four different interpretations, two on each side. Each side would say, ‘Well, this is maybe the best case scenario, interpreting what he said’ and, ‘This is the worst case scenario’ and both of them ranged enormously with, in my opinion, a scant connection to the truth. This is also the product of a society that is very traumatised, a society in which there’s a significant lack of confidence between its different components, and a society in which the narratives of each side are so diametrically different.

NC: A very interesting example is here. I’ve got a copy of it. The Voice of Bahrain, the daily news newspaper, the headline is, ‘Commission head backs the death penalty verdict’. I mean that just clearly goes against everything you’ve always stood for.

PB: Well that’s true. I was giving a radio interview on NPR in Chicago to a programme that I appear on quite regularly for over 20 years and the interviewer asked me, ‘How come one person in the cases that were adjudicated by the military court, the National Safety Law Court, received the death penalty?’ and I said, ‘Well in accordance to Bahrain law that person who had intentionally killed another could receive the death penalty because that’s in the Criminal Code’. So that was a purely explanatory, neutral statement and, as you said, the newspapers in Bahrain then frontlines, you know, ‘Bassiouni supports the death penalty’.

It went one step further because I then, you know, decided to reach out for the opposition to explain my position because I felt that it was important to maintain a level of confidence, and they said, ‘Well alright but, leave that aside, do you realise that this person who was found guilty is actually innocent and that your statement supports his conviction?’ and that sort of took my statement two steps beyond any logical conclusion. I said, ‘Well how do you reach the conclusion that I’m supporting the court’s decision that this person was the person who committed the murder?’

So it’s that type of thinking in which there are so many layers to the narratives and the perceptions of people that, if you approached things from what I would call a common sense-based approach... I mean if it’s black, it’s black and, if it’s white, it’s white. That’s common sense. You know, this is not Western thinking as opposed to Arab thinking or Asian thinking. It’s just simply common sense. Common sense does not have much stock in Bahrain.

NC: Do you have clarity now in your head about what happened? I mean you have also been quoted as saying, ‘There will be bitter pills to swallow’. For whom and what might they be?

PB: You know, in every conflict situation it is very seldom the case that things are exactly black and white. They usually start at the black and the white side but there’s always a lot of grey in the middle. When you’re dealing with an escalating process of political rhetoric and violence accompanying it, the process of escalation never happens without either side doing something that then gives it justification for the other side to escalate. What you look for in these situations is if the escalation went beyond the normal level of escalation, whether there was excessive use of force, whether there was any abuse that took place on one side or another. All of these things are taken into account but this has to do with situations of crowd control, with violence in the street, if you have demonstration protesters. It doesn’t address all of the other matters that occur as a consequence of the ripple effects of that central event. So that, if – as I know you’ve covered – you’ve had massive demonstrations at the roundabout, which everybody knows, there were ripple effects at the Salmaniya Medical Hospital. There were ripple effects subsequently in the arrests of people and so on and it’s all of those ripple effects that have to be examined because the mandate of the Commission is to look at whether or not government forces acted properly, whether they acted in accordance to international human rights law or not. So we have to look at all of those consequences.

So we’ve received quite a substantial number of complaints, information. We’ve reached out to opposition groups and to the government. We have received a great deal of information from opposition groups, as well as civil society organisations, from the government as well.

NC: And what’s going to happen to all that evidence and who will have access to it afterwards?

PB: We have decided basically that the written records shall be destroyed before we leave the country. The Commission’s decision is based on the fact that we truly need to ensure the privacy and the security of the people who came and testified with us, or to us. We are going to keep an electronic copy, which is going to be stored with an international organisation outside the country.

NC: You’ve investigated several wars: Iraq, Afghanistan and so forth. How does this one compare, from a personal point of view, in terms of the personal effort and the emotion that it takes out of you?

PB: This is probably the most taxing of them all, in one sense. One thing is certain, that every conflict is sui generis. Every conflict has its own characteristics. One thing, however, remains constant, which is the tragic realisation that human activism doesn’t change, that you see the same type of human reactions – for lack of a better term, I would call ‘evil’ that would come out in a culture like the former Yugoslavia or Afghanistan or Iraq or Libya or Bahrain. It seems like the veneer of human civilisation is very thin and, if you scratch that veneer, human activism comes out very fast. On the other hand, human good comes out very fast as well and you see on the other side the number of persons who come out and do the right thing: who save, who try to save victims, who expose their lives in order to do the right thing.

So you truly see the contrast within each and every one of us of good and evil and the struggle between it, with the evil unfortunately prevailing in its public manifestations. In the Bahrain situation, fortunately the overall number of victims is a very limited one and this is a publicly-known figure so I’m not revealing anything, but we’re speaking of fewer than 45 persons being killed. I leave it purposely vague, not because I don’t know the number but that way I’m disclosing the actual number.

You know, this is not Yugoslavia with 200,000 people killed. This is not Rwanda with 800,000 people killed. This is not even Libya, as our Commission there has estimated 10,000 to 15,000 being killed. I say that because in Libya the area of conflict – being mostly limited to a central area, including Tripoli – is an area inhabited by about 1.5 million people, which is the population of Bahrain. So in 1.5 million people in four months, which is approximately the same period of time of the conflict in Bahrain, you have 10,000 to 15,000 people being killed, as opposed to under 45 people here. It gives you an idea of it but what it doesn’t tell you is the traumatising effect of something in a given society and that varies enormously. For example, in Libya the story about one woman having been raped and four other cases reported – two of them by the BBC – immediately had an extraordinary explosive impact. People were starting to speak of mass rapes. In Libya...

NC: They were talking about Gaddafi supplying troops with Viagra to encourage systematic rape.

PB: Yes, which was no basis in fact, no basis in fact. You know, but the analogy with the former Yugoslavia where there was a policy of systematic rape as part of ethnic cleansing came to people’s minds and it became a sensationalist issue. The point is that, even with five cases in Libya, we travelled from east to west, north to south, there wasn’t a single part of Libya and a single group of people who did not refer to the rapes. Five cases had a national traumatic impact on society and so I think Bahrain is a traumatised society. You can’t look at it from the perspective of the number of persons dead or the number of persons injured or tortured. You really have to look at the traumatising impact it had on society and that’s going to be crucial in developing the reconciliation mechanisms for the future.