America's sadly ambiguous role in prosecuting war crimes

An architect of the International Criminal Court talks about how America created the treaty that brought a new level of justice but has never ratified the pact. The Bush administration even sought to undermine other countries' participation.

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The cover of David Scheffer's book, "All the Missing Souls."

An architect of the International Criminal Court talks about how America created the treaty that brought a new level of justice but has never ratified the pact. The Bush administration even sought to undermine other countries' participation.

During the 1990s, mass atrocities in the Balkans, Rwanda, Sierra Leone, and elsewhere shocked the world. The human toll and horror were incomprehensible in these savage conflicts that saw a resurgence of concentration camps, “ethnic cleansing,” genocide with machetes and farm implements, the “new” war crime of mass rape, and other innumerable assaults on life and property. 

In light of these widespread atrocities, a key component of U.S. foreign policy under the Clinton Administration in the 1990s became a pursuit of international justice and a determination to prevent and punish atrocities including genocide, war crimes, and crimes against humanity. 

Ambassador David Scheffer, an international law expert, served as the administration’s point person in its international justice efforts. He was the lead architect of the ad hoc international criminal tribunals for Yugoslavia, Rwanda, Sierra Leone, and Cambodia, and the permanent International Criminal Court. During Clinton’s first term, Scheffer was senior advisor and counsel to Madeleine Albright, then the U.S. Ambassador to the United Nations. When she became the Secretary of State in 1997, he was appointed the first U.S. Ambassador-at-Large for War Crimes Issues — a position referred to as “the Ambassador to Hell” — and he served in that role until 2001. As a result of Scheffer’s efforts, international courts are now operating and prosecuting leading perpetrators of mass atrocities as they set a standard for a new era of justice and protection of human rights.

In his compelling new memoir, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton), Scheffer chronicles his experiences on the frontlines of international justice, from the difficult and often-frustrating efforts to create effective courts and bring perpetrators to justice to his own observations in the killing fields in Europe, Africa, and Asia as a witness to the aftermath of some of the most horrific crimes of the past century. Scheffer offers invaluable insights as a persevering diplomat with a tireless commitment to justice who was involved in every major decision as the lead architect in the creation of these unique courts of justice. 

In addition to being very readable, this insider book will be invaluable to historians and students of international policy because, as Ambassador Scheffer noted in his Seattle talk to the World Affaris Council Feb. 21, it’s based on his personal notes and diaries of closed-door meetings and contains material that appears nowhere else. Scheffer is now the Mayer Brown/Robert A. Helman Professor of Law and director of the Center for International Human Rights at Northwestern University School of Law. He was named one of Foreign Policy’s “Top Global Thinkers of 2011.”

Ambassador Scheffer discussed his new book and experiences as the architect of war crimes tribunals by telephone as he traveled on his book tour.

Lindley:  Did you take on war crimes as an issue yourself or was that assigned to you?

Ambassador David Scheffer:  It was a little bit of everything. Remember, we didn’t have anyone with that kind of designation in the U.S. government, and yet we were grappling with these issues in real time, and someone had to take control of it. Madeleine Albright was clearly the leader, but had a big job to do as ambassador to the United Nations, and good leaders know how to delegate. She delegated the hard, daily, hourly work on it to myself, and that meant running endless tracks in Washington on these issues and then of course dealing with the tribunals themselves once they were built, and all the judges and prosecutors, and I was always on the phone with all these people trying to organize U.S. support and assistance, and galvanize our diplomatic pressure on every government to cooperate with the tribunals. 

All of this took an enormous amount of time and effort and that’s what I was delegated to do in the first term. And we really felt that this had become a full time endeavor and it was important to have an envoy on top of it at all times, and that’s why the proposal emerged so quickly in the second term to actually create a new ambassadorship to address the incidents.

Lindley: To add historical context, how did the Nuremberg and Tokyo war crimes tribunals influence your thinking on the International Criminal Tribunal for Yugoslavia and other tribunals?

Ambassador Scheffer: We were on terra nova in 1993 in terms of how to address the issue of accountability for atrocities in the Balkans. There was no international criminal court of any character, and none had existed since the international military tribunals of Nuremberg and Tokyo after World War II. We had to figure out how to build a court if we did this. Would we try to negotiate a treaty among nations to build an international criminal court? That would take years. Would we gear up a national court in the Balkans to take this on? The region was aflame. There was no security and it was impossible to conceive of a national court.

We did look back to Nuremberg and Tokyo and the charters for those military tribunals, which provided a template to work from, but this was not going to be victors’ justice. This had to be justice created by the international community to address the issue. 

We looked at the U.N. Security Council where we have substantial power as a permanent member. We took a rather bold step in determining that the Security Council could be the body to create a criminal tribunal to address a threat to international peace and security with its authority under the Charter. 

We took that direction and it unfolded very quickly. France was our partner in the Security Council that took the lead with us in pressing this issue forward. That resolution was adopted in late February 1993, and it was a preliminary step because it said that Secretary General should now draft a statute and bring it back to the Security Council to adopt a resolution that operationalizes the court. In May 1993, that statute was agreed to and the operational phase of the court began.

Lindley: As you tried to put together this tribunal, you must have been very aware of concentration camps and other ongoing atrocities in the Balkans.

Ambassador Scheffer: We were extremely aware. The news about the detention camps in Bosnia came out in 1992 and that was a huge incentive to build the Yugoslav tribunal at the beginning. And the news of atrocities continued to unfold in 1993, 1994, and early 1995. 

I think the richness of the story is the reality that the Yugoslav tribunal was only one aspect of dealing with a situation of that character. It can’t be an instrument to literally bring war to an end. That’s not its purpose. The purpose of a tribunal is to adjudge crime and then render just punishment for it.  It’s not literally an instrument of war fighting or war ending. But the other huge story of the Balkans in that period was failure of the U.S. government and the NATO countries to decide about how to most effectively address the military situation on the ground and bring the atrocities to an end. That was a failure of policymaking. 

Lindley: As you were dealing with the violence in the Balkans, the genocide in Rwanda began in earnest in April 1994 as the Hutu majority began a campaign of extermination against the Tutsis. How aware were you of the mass killings there at that time?

Ambassador Scheffer: What we were aware of were isolated attacks against the Tutsis where you’d see a hundred or two hundred Tutsis killed sporadically in January, February, and March 1994. When that happened, particularly back then when we didn’t have two decades of experience with reaction to atrocities, it was notable but it was not as though we were smart enough to see that those [killings] were clear signals of preemptive strikes that would culminate in a genocidal surge in April. We didn’t have that foresight. We missed that mosaic of evidence that we should have been far more focused on. 

As I write in the book, we kept looking at the situation in Rwanda as it unfolded in a conventional sense when we should have been thinking unconventionally. In other words, conventionally in the context of Rwanda was the Arusha Peace Process between rebel Rwandan Tutsis who were camped out on the border of Uganda and the Hutu government. It was anticipated that this peace process would achieve some accommodation between the two groups. When you have that mode of thinking and you see violence in Rwanda in the run-up to genocide, your instinct as a diplomat in the State Department — and this is what happened — is to say, let’s put that in the framework of the Arusha Peace Process and see if we can get them back to the table to talk with each other — to diplomatically intervene to bring an end to the killing. 

The State Department will always think that way, and it has to be more sensitive to the character of the evidence that’s building and the fact that you might have to take some extraordinary steps to ensure that atrocities do not break out. We made a terrible mistake in not bringing all that information together more coherently and understanding its significance at the time.

Lindley: The photo on the cover of the book shows you walking in a cemetery in Rwanda. Although you don’t dwell on the explicit nature of the atrocities, you write very movingly of what you saw in the aftermath of major atrocities. You describe survivors in Rwanda, refugees in Kosovo and other nations you visited. In Sierra Leone you met victims of terrible mutilation, including Nancy, a mute teenager who survived blinding with molten plastic and brutal sexual assault. You’ve witnessed terrible suffering. Can you talk about how these horrific atrocities have affected you?

Ambassador Scheffer: The first thing is that the more you’re exposed to this horror, frankly, in the human experience, at least in my case, the more you become determined to persevere. In other words, there’s no way you can walk way from it after a while. You have to keep walking right into it because you know it’s there and you feel guilty if you’re not addressing it. I think this is a feeling that so many humanitarian workers and doctors in the field have in their lives. It’s not a question of getting hooked, but more that you’re compelled not to ignore it any more. That’s really what happened. For example, if you suddenly become aware there’s an atrocity, you want to be there as soon as possible. You know you’re going to witness the horror of it, but you also know you’re there to get something done in response to it. That tends to build upon itself.

The book only scratches the surface of various stories of my encounters with atrocities, and I did that purposely. I didn’t want the book to be one atrocity after another; that frankly might shock the reader into putting the book down.  I just wanted to give snapshots of what I witnessed, and then focus the book on the diplomatic efforts to build the war crimes tribunals in response to these atrocities as well as present the inside view of what the U.S. government did during these atrocities — which I am able to offer — and, of course, the chapter, “Unbearable Timidity,” addresses the futile five-year effort to capture indicted fugitives Karadzic and Mladic in the Balkans.  Those stories are more readable for the general public and occasionally tell them what it was like in the atrocity zones. 

I don’t think I have a single description in the book of what it’s like day after day to stand at mass graves exhumations and watching forensic experts pull one tattered body after another out of the earth, but I spent a lot of my time at mass graves that were being exhumed in evidence collecting for the tribunals. You never get those images or even the smell of it out of your system. You get to a point, as I write, that you almost get used to seeing the remains of adults who had become victims of atrocities, but it’s almost impossible to get used to seeing children who have suffered this kind of violence.

Lindley: You were also a lead architect of the International Criminal Court as a representative of the U.S. Historically, it seems there’s an American tendency to resist international agreements and a concept of American exceptionalism. Can you talk about your efforts to establish an international tribunal in the face of this American predisposition?

Ambassador Scheffer:  Having launched into so much work and dedication on building the Yugoslav and Rwandan tribunals, it was only natural for the Clinton Administration to take a very deep interest in the emerging proposal for a permanent international criminal court, which had been working its way through the International Law Commission of the United Nations in 1993 and 1994. It emerged from that work of experts, and in 1995 the draft text of the statute was put on the table for negotiations among governments at the U.N. 

There was a natural flow of events. The Security Council began to experience tribunal fatigue and it was not plausible for the Security Council to create tribunals every time an atrocity occurred. That’s very costly and very inefficient and time consuming. There was a growing feeling that we needed a permanent international criminal court that would be cost efficient and would take on situations that would erupt in the future. We were quite enthused to be part of that process and frankly to lead the negotiations in that process, so I became deeply invested in it.  

On six occasions, President Clinton stated that he supported the creation of a permanent international criminal court by the end of the 20th century. He put his effort behind it. As a consequence, I was delegated to that task and, all the way to the end in 2001 with the change of administrations, I led the U.S. delegation to negotiate and create this international criminal court.

As you noted, we labored under this notion of exceptionalism, which I think people out there learned more about in a very political way during the last presidential campaign when certain candidates made a big deal out of the United States being an exceptional nation. In current presidential campaigning, you hear certain candidates emphasize that point.

The problem is you have to sit back and ask what best advances U.S. interests. Is it to go out and state that you’re so exceptional that you need a lot of exceptions while other nations subject themselves to the terms of responsibilities and obligations and liabilities for commission of these atrocity crimes? Is that how you’re going to best advance the U.S. interests? 

As my book explains, this is a counter-productive strategy.  If we trumpet our exceptionalism, other nations will resist that.  They will isolate us and defeat us in negotiations.  It was not really the smartest strategy to take.  It’s a self-gratifying political dialog here in the United States that makes us feel good that somehow we’re exceptional. But frankly, for other countries, we need to achieve and protect our interests in a smarter and more sophisticated way.

That strategy backfired and it truly hurt us on the International Criminal Court negotiations. After all, as a diplomat I have to act under instructions, and my instructions were to find a way to build this court that essentially immunized the United States from it. Imagine how fun that became when I went into a negotiation. Everyone else is subjected to the jurisdiction of the court but somehow the United States is not. And, by the way, do everything we want you to do in the treaty.

The book tries to describe that paradoxical path. Ultimately, I was able to sign personally the Rome Statute of the International Criminal Court on December 31, 2000. Much has been distorted about that event and what President Clinton’s intentions were with the signing of the treaty, recognizing there would be a long-term venture ahead of us to ever achieve ratification of the treaty because of the nature of the U.S. Senate and what the Senate usually requires in ratifying treaties.

Lindley: I think many people are confused about how the International Criminal Court works and what would happen if we ratified it and became a party. There are questions about how jurisdiction is triggered and whether the court could, for example, indict George W. Bush and Dick Cheney and Donald Rumsfeld for the crime of aggression in Iraq or for violating treaties on torture, or indict U.S. troops for alleged war crimes in Iraq and Afghanistan, or indict U.S. leaders for drone attacks that resulted in civilian deaths in Afghanistan and Pakistan.

Ambassador Scheffer: First of all, the United States is not a state party to the Rome Statute. Therefore, it’s much more difficult for the court to achieve jurisdiction over those types of actions. It’s not impossible, but it’s much more difficult. 

If we were a state party to the Rome Statute, it is true that the United States would be held to the standards of compliance with atrocity law and international law that is demanded by the Rome Statute. The Rome Statute also strips any official immunity from any political or military leader with respect to the court. When a state ratifies the Rome Statute, it agrees that there will be no official immunity for presidents or prime ministers or secretaries of defense or any other leader. And 120 nations, including all of America’s allies other than Turkey and Israel, have done that. That’s something you buy into and, as a champion of the rule of law, that’s something United States should buy into.

It’s an odd phenomenon that we appear to be so intimidated by the prospect of criminalizing genocide, crimes against humanity, and war crimes that we remain outside of the court. There’s a great fear that somehow we’ll be subject to politically motivated prosecutions by the court. We dealt with that subject endlessly during the negotiations. Our job was to build necessary safeguards into the treaty so that that issue could be checked and eliminated if it ever arose, and those safeguards are in the Rome Statute. 

But one important point is that you cannot legislate or believe that somehow under some argument of exceptionalism that the United States can or should immunize itself against accountability for the commission of these atrocity crimes or, in other words, empower the president or the military to commit these atrocity crimes. We don’t have the right to think we can commit these crimes. It’s a no-brainer. If you’re a real American, you’d say, Of course not.  

If our leaders plan genocide or plan crimes against humanity or plan massive war crimes, they must be brought to justice and, quite frankly, much of our federal criminal code and the Code of Military Justice demand that. The issue is are we enforcing them or are we passing legislation such as the Military Commissions Act in 2006 that literally immunizes our officials from prosecution for crimes such as alleged torture in the so-called “war on terror?”

Either we have to step up to the plate on the rule of law, or we have to re-examine what this country really stands for.

Lindley: After you left government service in 2001, didn’t Republican Sen. Jesse Helms propose removal of your signature from the Rome Statute?

Ambassador Scheffer:  Yes. After I signed the Rome Statute on Dec. 31, 2000, that angered Sen. Helms greatly. He claimed that the new George W. Bush Administration should go to New York and erase my signature from the treaty. They actually sought to do so in May 2002 with a letter to the U.N. Secretary-General saying that the United States would no longer undertake any of the responsibilities of a signatory state to the Rome Statute, meaning that the United States could go out and start to undermine and oppose it. That is what they did immediately thereafter. And yet, my signature is still there. A new letter from the Obama Administration to the U.N. could state that the United States resumed its responsibilities as a signatory state to the Rome Statute, meaning that we were not going to undermine it or threaten states that joined this treaty with cut-off of military and economic aid, as we did during the Bush Administration.

I will say that the Obama Administration has had a very constructive and cooperative relationship with the ICC — so much so that one could almost say today that the United States holds de facto membership with the ICC because in so many ways, the United States is now advancing ICC objectives through its actions whether with leadership in the Security Council making sure that situations such as Libya get referred to the ICC, or sending 100 military trainers to Uganda in October 2011 with the express purpose of tracking down, arresting, and flying to the Hague the four senior indicted fugitives of the Lord’s Resistance Army who need to stand trial before the ICC. 

We’re doing a lot now, but we’re still far removed from attracting enough support in the U.S. Senate to ratify the Rome Statute. And also, to ratify it, we would need to pass implementing legislation, and that, of course, requires the cooperation of the House of Representatives. If that’s totally controlled by the Republican majority, it’s highly unlikely that implementing legislation will be adopted.

Lindley: What would you like to see happen with the violent and unstable situation in Syria now? 

Ambassador Scheffer: I would prefer that the Security Council — now that we have the dilemma of the Russian and Chinese veto there — persuade [Russia and China] to abstain on a very clean resolution that would refer Syria to the International Criminal Court. The level of atrocity crime is now so obvious that it begs for proper investigation. I would hope for at least that clean resolution. That would be one step, but there are other ideas on Syria, and fortunately the Arab League is becoming a partner in this with the international community. The General Assembly itself, as we’ve never seen before, is acting in unison to address the kind of atrocities as we’ve seen in Syria. 

Lindley: For one, John Yoo, a former White House counsel in the Bush Administration, has been a critic of the ICC and argues, I believe, that only military intervention and not the court can end atrocities. As you point out, the court is not designed to deter crime but to prosecute it. Given that, it does seem that atrocities have abated in some situations as in Kosovo in 1999, when hostilities ceased shortly after the arrest of accused perpetrator Slobodan Milosevic. 

Ambassador Scheffer: It is a misunderstanding of the role of the criminal court that Prof. Yoo posits — that somehow the criminal court is to defeat armies and defeat that passions of power hungry leaders, and that’s the burden of these tribunals. That is not what they are built for. They are criminal courts. In any national system like the United States we have criminal courts that investigate crimes and bring perpetrators to justice. Does that mean that the criminal courts of the United States have ended crime in our time? No, of course not, but it’s a process you need for some level of justice and not impunity for these crimes. 

The better view is to say in 10 or 20 or 30 years from now, what will the respect for the rule of law be in Serbia or in Bosnia or Croatia or Rwanda or Congo or Uganda? It’s not the short-term impact of these tribunals on the current generation, the hate-filled sectors of society that are battling it out. We need to bring them to justice because that’s what the rule of law is all about. You can’t argue that they should simply get away with this.

The real deterrent impact is a generational one. If you look at the societies of Germany and Japan today, I think you have to conclude that, while they both unleashed World War II on the world, they were subjected to the Nuremberg and Tokyo tribunals, and those tribunals left a lasting legacy on those societies. It was not popular at the time but I think later generations have benefitted enormously from the fact that those tribunals were convened and actually brought leaders to justice. That’s the same kind of impact that you’ll see with these tribunals. 

There’s also recent academic work demonstrating that, over the last 30 years, in societies where there have been human rights prosecutions at the national level or at the international level through these tribunals, you see empirically a diminishment of human rights abuses in those societies and even in neighboring societies.  So the empirical work demonstrates that, over the long term, there can be a significant impact on the protection of human rights in these societies, but it’s not an instant one.

I strongly disagree with Prof. Yoo’s analysis that somehow we operate under the assumption that building these tribunals is the magical formula for defeating terrorism. He tries to defend his own conduct by using this argument as a straw man, saying there has to be a military response — these tribunals don’t get the work done. It’s a total misunderstanding of what this process is all about.


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