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David J. Scheffer
U.S. Ambassador at Large for War Crimes Issues
Address before the Association of the Bar of the City of New York
New York, New York, February 5, 1998

Blue Bar rule

Reconciling Accountability for Human Rights Atrocities with Conflict Resolution
Good evening. I first want to thank the Association of the Bar of the City of New York for sponsoring this event. You have an ambitious topic, namely to examine how to reconcile the two imperatives of conflict resolution: to end the fighting as soon as possible and thus establish peace, on the one hand, and to render justice and establish individual accountability, on the other hand. The conventional wisdom is that these two imperatives are in conflict or that advancing one goal means backsliding on the other. Let me offer a different insight.
It is often the case that conflict resolution is positioned first in the priorities of the international community when confronted with either an internal or international armed conflict. The first responsibility of the Security Council, under the U.N. Charter, for example, is to restore international peace and security. The first responsibility of an alliance structure such as the North Atlantic Treaty Organization is self-defense or termination of a war that threatens the alliance. Nonetheless, building democracy and ensuring the protection of human rights and the accountability for grave crimes against humanity have become, since the end of the Cold War, expected outcomes of successful peacemaking endeavors. That is progress compared to the ideological imperatives that dominated the Cold War era at the expense of both conflict resolution and peace building in troubled countries.
But we would be mistaken to view this daunting issue as simply one imperative preceding the second imperative in the "action lists" of our foreign policy. Increasingly, the launch pad of the second imperative, namely the pursuit of justice, is established while conflict resolution is underway. Timing this dual track approach and establishing realistic objectives greatly depends on the circumstances of an individual conflict, the history of the region, the loyalties and expectations of its peoples, and the political and sometimes military will of the international community to stay the course.
We must not, therefore, adopt any simplistic formula that pits justice against peace. Different societies have crafted different approaches. Where great wrongs have been committed, one can discover widely different answers to the question of when those in power face accountability for their actions. And those answers often generate continuing controversy within a society emerging from a bloodbath.
At one extreme are examples like Nazi Germany and Japan at the end of World War II. By the end of 1945, those responsible had lost all power to resist the Allies. They had no choice but to face international trials to establish their criminal responsibilities, and thousands of others faced domestic trials. The outcome was not perfect, but it was historic.
In other situations, the outcome has varied. For a society--or the international community--to get rid of those in power who have committed atrocities, the argument is that it may have to bargain away justice, explicitly or implicitly. Against those holding relatively more power, the justice option is often weakly conceived. It may consist of no more than a commission of inquiry. Against those holding relatively less power, the justice option can be more strongly conceived.
In some societies, like South Africa, there was a turnover of power by peaceful means. The previous government of South Africa accepted that it had to go, and it did. Most South Africans, and most of us in the international community, applauded South Africa's solution of amnesties and a truth and reconciliation commission in order to lock in peace and liberate its people from apartheid. In Argentina and Chile, the trade-offs were even starker and, significantly, have generated continued dissent within those societies. There has been in both countries the reality that political and military actors who remain, and wish to remain, in positions of considerable authority in a "liberated" society can leverage their own accountability for past crimes in a trade-off that permits others to advance the cause of their domestic rivals. The result undermines their power base of those increasingly discredited leaders, but with their willing consent.
External Political Actors
External political actors--the international community, NGO's and the media--can dramatically improve the situation by sapping the legitimacy--and hence the power--of those responsible for widespread atrocities. Depriving those responsible for atrocities of their international legitimacy can help undermine their efforts to resist international justice. To take only the most obvious example, economic and political sanctions by the international community helped deprive the authors of ethnic cleansing in the former Yugoslavia of legitimacy. When the Yugoslav War Crimes Tribunal was established, the vote in the Security Council was unanimous. The Tribunal itself played a key role when it indicted Radovan Karadzic and Ratko Mladic in July 1995, enabling the United States to insist, successfully, that they would have no role in the peace process that culminated in the Dayton Accords. Justice, in the case of the former Yugoslavia, helped and continues to help contribute to the peace.
U.S. Leadership
Institutions will play a role, but leadership is essential. This is where the United States has made a difference. There was a time, for example, when some States might have been willing to trade justice for "peace" in the former Yugoslavia. Aside from a few mistaken Op-Ed columnists, you do not hear anyone saying this any more.
In central Africa today, U.S. leadership is forging the most ambitious justice initiative ever introduced to that continent in the wake of horrific conflicts and atrocities. Secretary of State Albright unveiled the Great Lakes Justice Initiative during her address to the Organization of African Unity in Addis Ababa two months ago. We believe that the cycle of violence and impunity in the Great Lakes region will not be ended without significant efforts to bring justice to the peoples of Rwanda, Burundi, the Democratic Republic of the Congo, and other countries. We are, in consultation with the Congress, committing $30 million to programs that will directly address the gargantuan problem of processing the cases of more than 130,000 accused genocidaire in Rwandan prisons, the need for strengthened military justice systems, the training of local prosecutors, defense counsel, judges, and court staff, the education of a new generation of lawyers, and critical initiatives to promote reconciliation efforts among ethnic groups. When President Clinton visits Africa next month, he will further the goals of the Great Lakes Justice Initiative.
Secretary Albright also acknowledged an important element of both justice and reconciliation, which after all is the lifeblood of sustained peace. With respect to the genocide in Rwanda in 1994, she said last month, "We--the international community--should have been more active in the early stages of the atrocities in Rwanda in 1994, and called them what they were--genocide." The United States and the international community have a responsibility to recognize in a timely manner the criminal character of atrocities. Our willingness to identify heinous crimes as such as soon as possible during a conflict can be instrumental in galvanizing an international response quickly enough to make a difference. We thus join the pursuit of peace with the pursuit of justice. Our timely exposure of gross criminal conduct on a scale unimaginable to most civilized peoples can help generate the means to wage the peace.
The Clinton Administration is committed to make a difference through our leadership whether it be unilateral, or by cooperative efforts with allied governments, or by our leadership in multilateral institutions. That is why I must take a moment to address the importance of paying our U.N. debts. We were pleased last year to receive bipartisan support for legislation that would put us well on the way to satisfying our obligation. Unfortunately, final passage of this bill was blocked by a small group of House members who wanted to hold the legislation hostage over an unrelated issue. That must not happen again. The United States has a responsibility to pay our debts. UN institutions--peacekeeping, the human rights commission and the war crimes tribunals for the former Yugoslavia and Rwanda--are vital to addressing the issues of peace and justice. The United States must and will play an influential role in these institutions, but to do so most effectively we have to pay our long-overdue bill to the United Nations.
The Interests of Victims
Listening to the victims is important. Experience in Africa has taught--if we needed teaching--that the cycle of violence is real, and that it must be stopped. "Peace" without justice often turns out to be the absence of peace. From a political perspective the Government of Rwanda has experienced difficulty in efficient enforcement of its own Genocide Law and the prosecution of more than 130,000 suspects incarcerated in Rwandan prisons because, in part, the International Criminal Tribunal for Rwanda has worked slowly and not yet convicted a single suspected genocidaire leader. The victims need, at a minimum, the highly symbolic conviction of a few leaders of the genocide by the Tribunal before they can acquiesce in possible large-scale efforts by the Rwandan Government to speedily process the cases of the tens of thousands of far lesser offenders under the Genocide Law. That is one reason why the United States has doggedly pressed for efficient administration of the Rwanda Tribunal, an effort that in the last year has shown significant progress. At a minimum, we expect the Tribunal to render three judgments this year and to advance the trial work of many of the 23 indictees currently in custody in Arusha. We are certain of this in Rwanda: the victims want justice rendered by the War Crimes Tribunal and by their own domestic judicial system. The United States has led the international community in pursuing both objectives.
In Burundi, peace will remain elusive until justice is seriously pursued for the genocide that has occurred in that country and the continuing crimes unleashed against both Tutsis and Hutus. The need for individual accountability in that society is an immediate necessity. We believe that the international community needs to find a mechanism that will address the challenge of justice in Burundi before it can be assured of the success of any peace process.
In the Democratic Republic of the Congo, the survivors of alleged atrocities there in 1996 and 1997 will press for accountability just as the United Nations has been doing since early last year. We know that peace in the Great Lakes region depends in part on the proper investigation of the alleged atrocities by the U.N. Investigative Team. We are frustrated, however, by the performance of both the Government of the DROC and the U.N. Team in getting the job done. We will continue to lead international efforts to press for the full and immediate access of the U.N. Team to all areas of the DROC.
Our experience in Bosnia has taught us not only the importance of prosecuting suspected war criminals in order to secure the peace and to secure justice, but also how important the work of the International Commission on Missing Persons is to the thousands who have survived their own hell on Earth only to be left with a void of information about their loved ones who disappeared. The Commission has found that it cannot separate the humanitarian goal of finding answers about the missing from the question of accountability for war crimes. The two are inextricably linked for the families. Senator Robert Dole, who was recently announced by Secretary Albright as the head the Commission and who traveled to Bosnia last month to undertake his duties, understands that linkage. Answers provided by the International Committee for the Red Cross based on information provided by the party suspected of perpetrating war crimes have been firmly rejected by the families of the missing. They want proof and, in the final analysis, they want some degree of justice.
A Permanent International Criminal Court
The moral power and deterrent effect of the proposed permanent international criminal court currently being negotiated at the United Nations may be one of its major contributions to world peace. President Clinton has called for the establishment of such a court by the end of this century. Once established, the permanent court should have at its disposal a body of laws on which there is the broadest possible consensus, so that potential perpetrators of serious violations of international humanitarian law will be on notice of the condemnation they may face. It is hoped that creation of a permanent court will eliminate the need to create ad hoc international criminal tribunals, pay the startup costs, and wait years for them to function fully. The investigators, prosecutors, and judges of the permanent court will be available for immediate review of alleged crimes. This fact alone will change the dynamics of any conflict and the challenge of creating a peace and rendering justice.
We need to consider carefully how to calibrate the work of the permanent court with efforts by the Security Council or governments or mediators to resolve a conflict peacefully. There is no one-size-fits-all answer to that challenge. Both institutions must be able to function effectively. We believe that a fair and effective permanent international criminal court will be an asset to conflict resolution. But it will have to be a responsibly administered court, one whose prosecutor initiates investigations and prosecutions within parameters that serve the interests of justice and are consistent with the most critical requirements of converting war into peace.
One key issue that the prosecutor and judges of a permanent criminal court will need to address in some fashion is domestic amnesties and pardons, which are quite common and are central to any discussion about peace and justice. I want everyone to understand that the United States would oppose any effort to immunize any individual from the jurisdiction of the permanent international criminal court. It may be important, however, for the permanent court to be able to exercise appropriate discretion in determining which cases are admissible for prosecution before the court in light of national efforts to forge lasting peace and national reconciliation.
All of these issues raise tough problems. The Clinton Administration does not underestimate how difficult it will be in coming months to resolve them in the U.N. negotiations. Nonetheless, we will continue to undertake every effort to develop a broadly accepted and workable statute for the permanent court that will serve the interests of international justice and of the United States in the twenty-first century.
To those of you tonight who are grappling with how to reconcile Peace and Justice, I would offer the following insight. To say that you have to trade off one against the other is wrong. The process is dynamic, with each day giving us unexpected opportunities to try to achieve as much as we can of both Peace and Justice. One of the goals of the Clinton Administration is to advance the rule of law globally. We shall continue to endeavor to do so in order to deter future conflicts and, when conflicts do arise, to help achieve their lasting resolution.
Thank you.
[end of document]

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