|David J. Scheffer, U.S. Ambassador at Large for War Crimes Issues
Address at the Peace Palace
The Hague, Netherlands, September 19, 1997
I am very pleased to be here this afternoon to address this distinguished audience about the future of international criminal justice. My appointment by President Clinton and by Secretary of State Madeleine Albright to the new position in the U.S. Government of Ambassador at Large for War Crimes Issues reflects their strong commitment to pursue the investigation and prosecution of individuals charged with the heinous international crimes of genocide, crimes against humanity, and war crimes. The challenge is, regrettably, global in scope. In our times these crimes are the trademark of the former Yugoslavia, of Rwanda and Central Africa, of Cambodia, of Iraq, and other regions of the world. I hold no illusions about the obstacles that lie ahead; but I know our generation must not fail to take up this challenge. Impunity and retribution are the enemies of our future. Only through international justice can these scourges be overcome.
Within these walls resides the most visible source of modern public international law. Since its construction in 1913, the Peace Palace has been the forum where the precedents of international litigation have often been framed. Here states have sought to resolve their disputes peacefully, even though unprecedented warfare among nations has often tested the purpose of this building.
Those who work in the Peace Palace know that it is a very 20th-century notion that through peaceful inter-state dispute settlement the rule of law would prevail. Yet, with the exception of the Nuremberg and Tokyo trials following World War II, there has been very little attempt to hold individuals accountable for major international crimes in any international forum. The shield of sovereignty which, after all, is the bedrock of international law, and the Cold War prevented the best-intentioned architects of the post-war international system from extending accountability or enforcement beyond state responsibility to those individuals who are the most egregious violators of international law.
Last week I visited a site in Rwanda called "Ntarama." There, on April 15, 1994, more than 5,000 men, women, and children were viciously murdered. I stood among the living dead, among scattered skulls and bones and blood-stained clothing on the floor of a Catholic church where the victims thought they would find refuge from the genocidaire. Hundreds of skulls blanketed a shack nearby. What happened at Ntarama was not the simultaneous extermination of thousands; it was not genocide with the drop of a gas canister into the well of a chamber packed with humans whose terrified eyes need never haunt the executioner. At Ntarama, and throughout Rwanda in the spring of 1994, genocide was murder in the first degree, victim by victim--with machete, club, hoe, spear, automatic rifle, or gasoline-fueled fire bonding executioner and victim to within inches of each other.
A survivor of the massacre, a 37-year old mother who had collapsed under the weight of the slaughtered corpses and whose entire family perished in the church, guided me through the carnage of Ntarama. We walked among her dead children's skulls. She pleaded softly for those responsible to be brought to justice. But she also said that if justice could be rendered, she could live with her neighbors again. And then she breast-fed her new-born infant with a tenderness that spoke volumes. She showed me the courage of a Rwandan woman who lost everything except the miracle of the human spirit.
Our common challenge is to ensure that the enforcement of international criminal law in the 21st century fulfills the expectations of both those who codified it in this century, and the survivor of Ntarama. The International Criminal Tribunals for the former Yugoslavia and for Rwanda are important tests of our resolve to take up that challenge. They are novel judicial institutions which remain experiments, and hence require our constant attention and support. No engineers would abandon a project just because their first efforts failed to achieve instant perfection. Neither should the international community abandon the first prototypes of international criminal justice in the post-Cold War era.
There is much skepticism about the future of the Yugoslav and Rwanda Tribunals. I have just returned from a two-week review of the operations of both Tribunals. I want to share with you some observations about the most troubled institution, namely the Rwanda Tribunal.
It is back on track. After a year of intensive scrutiny by the UN Inspector General, a highly critical report issued by him last February, and months of reform initiatives and staff changes, the Rwanda Tribunal is beginning to show potential for achieving its original purpose--the prosecution of the leaders of the 1994 genocide. There is much reform yet to accomplish, but the course has been set.
The fact is that the Rwanda Tribunal has more indictees--of greater relative stature--in custody than does the Yugoslav Tribunal. I visited the UN Detention Facility in Arusha where 21 of 53 cells are occupied by 15 indictees and six accused awaiting indictment. I saw such former Rwandan leaders as Theoneste Bagasora, George Rutaganda, Jean Kambanda, and Pauline Nyiramashuhuko sitting in their cells surrounded by books and files in preparation for their trials. Gratien Kabiligi, a notorious young Colonel in the Rwandan Army who allegedly went on to terrorize his people in the refugee camps in East Congo, was mopping his floor. There remain eight indictees at large who must be found and apprehended. Deputy Prosecutor Muna has not forgotten them. There are many more leaders and strategists of the genocide who are suspects and likely candidates for indictment.
So, despite 32 available cells today, more cells probably will have to be built next year to accommodate new indictees. Three major trials are underway this year. More trials are forthcoming, including Nuremberg-style joint trials where influential defendants from government and business will be joined to show how finely tuned was the orchestration of the genocide throughout Rwandan society.
The new Deputy Prosecutor of the Rwanda Tribunal, Bernard Muna from Cameroon, has shown in his first few months a determination to pursue vigorously the prosecution of the masters of genocide in Rwanda. We need to give Mr. Muna a chance to prove himself. He already has effected the arrest of seven indictees and suspects in Kenya, produced a new strategy for prosecution, namely to group many indictees together for joint trials, and reorganized and increased the size of the Deputy Prosecutor's Office in Kigali. Chief Prosecutor Louise Arbour, who selected Mr. Muna, has been deeply engaged herself in developing the new prosecution strategy and in upgrading the entire operation of the Rwanda Tribunal.
A second courtroom at the Arusha headquarters is being constructed and should be completed soon. The hiring of a large number of investigators and prosecuting attorneys is underway. We consider it exceedingly disruptive, however, that trials are still being suspended for months at a time--a fact that indeed delays justice needlessly. We trust this rather unfortunate practice of the Rwanda Tribunal will be ended soon.
The Yugoslav Tribunal faces a more desperate problem. It needs in custody more indictees, particularly the leaders of the genocide, war crimes, and crimes against humanity that ravaged Bosnia and Herzegovina and Croatia for so many years. All of us are impatient for this to happen. But it will. As Secretary Albright has said, there is no statute of limitations on these crimes or on our determination to see justice done. The United States Government is totally committed to strengthen the capabilities of the Yugoslav Tribunal and to pressure the regional authorities in order to accomplish the arrest and prosecution of the indictees. The NATO-led Stabilization Force, or SFOR, can assist within its agreed-upon rules of engagement, and did so in Prijedor recently. The "outer wall" of sanctions surrounding Serbia-Montenegro remains standing, and economic assistance to non-cooperating parties of the Dayton Accords will remain unavailable.
For all of the theory and jurisprudential underpinnings of each International Tribunal, however, which make these institutions so intellectually challenging for international and criminal lawyers, there are operational issues which needlessly hamper the Tribunals' efficient operations. Unless these issues are resolved, the theory and precedent essential to a lasting jurisprudence risks being buried under the weight of bureaucracy.
For example, the International Tribunals are unlike any UN entity ever established in the past. They require specialized, highly trained, and experienced legal talent that can join the Tribunal ranks and hit the ground running. Yet the United Nations Secretariat has insisted upon deep cuts in the number of gratis personnel, namely experts detailed to the Tribunals at cost to the donor governments, and has insisted on charging so-called support costs of a flat 13 percent on the value of each such gratis individual as well as on any in-kind contribution. The justification offered by the Secretariat for these measures misconstrues the UN's own practice, defies common sense, and ultimately undermines the UN's ability to discharge its functions. The United Nations is simply shooting itself in the foot; so too are those governments which are promoting the elimination of gratis personnel on the very false premise that by doing so they will improve the chances for their own nationals being direct hired by the United Nations or, in this case, by either International Tribunal.
The exceptional requirements of the International Tribunals demand the services of gratis personnel of the highest caliber now, not on some drawn-out UN timeline for employment and training. Experienced prosecutors and investigators work in career government positions and will not abandon those career jobs for direct hire positions or for one-year UN contracts that ignore their future and what is required for professional investigations and trial work. The solution for these kind of gratis personnel is secondment joined with the expectation they will return to their governments. In short, governments should not be penalized for offering gratis personnel at their own expense with an arbitrary UN surcharge that defies sound management principles and undermines the work mandated by the United Nations itself.
Another operational issue is the UN's own understanding, or lack thereof, of the requirements for an international criminal tribunal tasked to investigate and prosecute crimes of the magnitude found in the former Yugoslavia and Rwanda. It is apparent during reviews of the budget proposals for the Tribunals that adequate knowledge about what international litigation really entails and costs is sometimes lacking. In the future there needs to be a concerted effort to ensure that decision-makers in New York properly understand the requirements of an international criminal tribunal and why the initial budget requests from the Tribunals are trying to anticipate future caseloads.
The United States remains committed to the efficient and successful operation of both International Criminal Tribunals. Their work will not, however, be accomplished soon. Years of further investigation and trials are ahead, provided the support of the international community continues. The Dutch Government has been on the front line of support, both for the infrastructure needs of the Yugoslav Tribunal and staff and other voluntary assistance for both Tribunals. We need to broaden voluntary support beyond the small circle of nations currently supplementing the regular budgets of the Tribunals. Our attention should be directed not only to other governments, but also to private individuals and organizations whose contributions can make an enormous difference in the future. In this respect, the assistance already provided by non-governmental organizations merits our special thanks.
The establishment and work of the International Criminal Tribunals for the former Yugoslavia and for Rwanda have deeply influenced the UN talks on the establishment of a permanent international criminal court, or "ICC." Under the able chairmanship of Adriaan Bos of the Netherlands, the UN Preparatory Committee on the Establishment of an International Criminal Court is preparing a statute to govern the ICC.
President Clinton and Secretary Albright have long supported the establishment of a fair and effective international criminal court. As President Clinton has stated, "Nations all around the world who value freedom and tolerance [should] establish a permanent international court to prosecute, with the support of the United Nations Security Council, serious violations of humanitarian law."
As we approach the 21st century, individuals--of whatever rank in society--who participate in serious and widespread international crimes of genocide, crimes against humanity, or war crimes must no longer act with impunity. Throughout history the "enemy" has been the belligerent nation or rebel army threatening international peace and security. But the other reality is that war criminals and genocidaire are the common enemies of all civilized peoples. They must come to learn that while they may run, they cannot escape the long reach of international law that finally shows some promise of being enforced. There is no doubt that the Yugoslav and Rwanda Tribunals have been critical first steps. But in the 21st Century we will need a permanent court that both deters such heinous crimes globally and stands prepared to investigate and prosecute their perpetrators.
As the head of the U.S. delegation to those talks, I can confirm that the precedents being established in The Hague and in Arusha inform the discussions and stimulate much deliberation. There is no question that the momentum of the UN talks is driven in significant part by the example of the ad hoc tribunals and the need to ensure that a similar institution of justice will be available in the future.
We are, however, at a crossroads in the UN talks. Governments must make maximum efforts over the next eight months to reach agreement on as many as possible of the remaining issues. Otherwise, we risk going to Rome in June of next year for a diplomatic conference with a deeply flawed document, weighed down with brackets that a single session, even if it is six weeks long, simply will not overcome. The United States would prefer a diplomatic conference that begins and ends in Rome next summer. We want to arrive at the diplomatic conference with a consolidated text of the statute of the court in which a minimum of issues are still outstanding. We will make every effort to work with others toward that end.
It is my hope that the permanent international criminal court will be established by the year of the millennium, 2001. But that target date is conceivable only if the on-going UN talks and the Rome conference address the toughest issues head-on with both pragmatism and a common allegiance to fundamental principles of international jurisprudence.
It is appropriate that in this historic chamber I discuss the issue that particularly vexes the UN talks, namely the independence of the ICC. There have been those governments which argue that the independence of the Court is assured only if the Prosecutor has unfettered authority to initiate cases, without any role for the Security Council or the consent of interested states. There are other governments which insist on the consent of a range of states before any case can be prosecuted before the ICC.
The United States has proposed an alternative procedure that we believe best ensures both the independence of the ICC and the practical use of the Court to prosecute crimes of genocide, humanity, and war. In our view, no case should be initiated by the Prosecutor unless the over-all situation pertaining to that case has been referred to the Prosecutor. But once there has been a referral, the Prosecutor has discretion to investigate and prosecute an individual case.
Therefore, under the U.S. proposal neither a State Party nor the Security Council would lodge a complaint against a single individual with the Prosecutor. The Prosecutor, and the Prosecutor alone, would determine whom to investigate and whom to seek indictments against. He or she would have the expertise and capabilities -- more so than a State Party or the Security Council -- to conduct investigations and make the critical determinations of which individuals should be held criminally responsible for commission of the core crimes of genocide, crimes against humanity, and war crimes.
The targeting of an individual for criminal responsibility is serious business that should be as far removed from political considerations as possible; only a highly qualified and respected Prosecutor should be entrusted with that duty for the ICC if it is not being undertaken at the national level. In this respect, the independence of the Prosecutor would be qualified only in terms of other important provisions of the Statute. The United States has reserved its position on the consent of any States to the prosecution of a case pending further review of negotiations in other key issues, including the role of the Security Council and the strength of the complementarity regime, or deferral to national jurisdiction.
We believe that the Security Council and State Parties to the statute of the ICC should be empowered to refer overall situations to the Prosecutor where there has been apparent commission of one or more of the core crimes in the Court's jurisdiction. The referral would request the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with commission of such crime. We have emphasized that the State Party should have to refer a situation or matter; the State Party would not lodge a complaint against one or more named individuals as contemplated by most other governments and by the International Law Commission in its draft statute. This procedure would mirror the referral procedure for the Security Council which is acceptable to a wide range of governments.
However, if the situation referred by the State Party to the ICC concerns a dispute or situation pertaining to international peace and security or an act of aggression which is being dealt with by the Security Council, then the Security Council should approve that referral of the entire situation to the ICC. In our view, the UN Charter responsibilities of the Security Council for the maintenance and restoration of international peace and security permit no alternative to that procedure.
Therefore, our proposal would require that no prosecution may be commenced before the ICC arising from a dispute or situation pertaining to international peace and security or an act of aggression which is being dealt with by the Security Council without the prior consent of the Security Council that such dispute or situation can be adjudicated, for purposes of individual criminal responsibility, by the ICC.
The referral power of the Security Council should be established so that the Council can bring to the ICC's attention situations that span the scope of the Council's responsibilities under the Charter, including both enforcement actions and peaceful actions relating to disputes the continuance of which would likely endanger the maintenance of international peace and security. We are, after all, striving to establish a court that will serve as a deterrent for the commission of core crimes as well as the judge of them. If peace can be served, and further core crimes deterred, with the rendering of justice by the ICC without the Security Council taking the extraordinary step of using its enforcement powers under Chapter VII of the Charter, then we believe that is a worthy procedure to incorporate in the statute of the Court.
If the Security Council were to act under Chapter VII in its referral of a situation to the ICC, then it could choose to direct the Court to exercise mandatory powers similar to those currently employed by the International Criminal Tribunals for the former Yugoslavia and for Rwanda. Whether or not the Council acts under Chapter VII, it could choose to refer a situation for action by the Court under whatever rules are finally established for complementarity and state consent. But governments need to keep in mind the Council's potential for a mandatory referral under Chapter VII authority as further progress is made in drafting the procedural rules of the Court, and then make whatever adjustments may be necessary.
The United States views the combination of the State Party referral procedure and the Security Council referral procedure as providing the ICC with a potentially wider and more significant range of cases to prosecute.
The Security Council is indeed a political institution, but then so too are governments. The argument we often hear that reference to the Security Council invites political influence into the work of the ICC continues to ignore the fact that any State Party lodging a complaint against a single individual also invites political influence into the work of the Court. Our proposal seeks to minimize political considerations in deciding which individuals to bring to the bar of justice. The U.S. proposal seeks to maximize the opportunities for both State Parties and the Security Council to bring whole-scale atrocities and war crimes to the doorstep of the Prosecutor and invite him or her to bring the perpetrators of those crimes to justice.
The United States recently proposed that the Security Council be expanded up to 20 or 21 Member States so that new permanent members could be added, including nations from the developing world. When the Security Council reform process concludes, we expect that the representation of a much wider cross-section of the global society will have been accomplished. Any decision that the Security Council makes with respect to the referral of a situation to the ICC thus will reflect the considered judgment of that larger and more representative group of nations. The Security Council is a principal, but not static, organ of the United Nations. The reform process reflects the interest of Member States in making sure the Security Council remains an effective and representative institution.
The grim reality of our effort to establish an international criminal court is that it is required to hold accountable the perpetrators of atrocities that presumably will occur in the future, since the ICC will have only prospective jurisdiction. This presumption is the darker vision of the next century. Our common hope must be that the establishment of a permanent court will defeat that presumption through the power of deterrence. Working with other governments, the United States will spare no effort to create a fair and effective permanent international criminal court as soon as possible to realize that hope.
This brings m to my final and most important point for you to consider today. There remains a widening and immediate gap in international criminal justice, between the two ad hoc International Tribunals established by the Security Council and the proposed ICC which will likely have only prospective jurisdiction. With increasing frequency, the Security Council is posed with the question of accountability for real-time and serious violations of international humanitarian law. "Tribunal fatigue" by Council Members and the still distant creation of a permanent court have combined to create a gap for mechanisms of accountability for massive crimes which have been committed in our times.
We must urgently fill this gap in our judicial institutions. The problem is complex, the solution illusive, and the political will of governments largely untested. But this is a challenge we must confront, today. The victims of too many atrocities and war crimes which have gone untended deserve our best efforts.
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