David J. Scheffer
Ambassador-at-Large for War Crimes Issues, U.S. Department of State
Address at Washington College of Law, American University
Washington, DC, March 31, 1998
I want to begin by thanking Washington College of Law and the American Society of International Law for their foresight in convening this conference at a time when developments are rapidly unfolding for the International Criminal Tribunals for the former Yugoslavia and Rwanda as well as for negotiations for a permanent international criminal court. The stellar cast of speakers for tomorrow's meetings is a veritable who's who of those who have made historic contributions to the work of the war crimes tribunals and are committed to their success. Many of you are in the audience tonight and I want to express my personal admiration for your dedicated service to international justice.
U.S. Policy on International Criminal Tribunals
It may well be said in future years that 1998 was the year international criminal justice came of age. The long march from Nuremberg and Tokyo has been arduous, particularly for those who sustained their hope for an international court through the decades of war and atrocities which followed World War II. But in this year the two ad hoc international war crimes tribunals expect to hold 11 trials of individuals indicted for genocide, war crimes, or crimes against humanity with staffs and budgets that finally reflect the international community's long-term commitment to their work. And this summer, after three and one half years of review by experts from the Member States of the United Nations, a statute for a permanent international criminal court will be presented for adoption by governments at a diplomatic conference in Rome.
Tonight I want to set forth U.S. policy on international criminal tribunals and the challenges which arise from them. Secretary of State Madeleine Albright is determined that the United States continue its leadership in the pursuit of international justice. She joins the President in recognizing the unique moment in history facing this generation of Americans. We cannot, and we will not, let war criminals set the agenda of the 21st century.
The Yugoslav Tribunal
The United States has played the pivotal role in the international community's support for the Yugoslav Tribunal, as well as its predecessor, the Commission of Experts on the Former Yugoslavia. We have provided $54 million in assessed payments and more than $11 million in voluntary and in-kind contributions since 1992, when the Commission was launched by the Security Council. These payments and contributions, including scores of seconded expert personnel, far exceed those of any other nation. Recently, the United States contributed $1 million for construction of the largest courtroom at the Tribunal in collaboration with the Dutch Government. This month Secretary Albright also announced the contribution of $1.075 million for Tribunal investigations in Kosovo, for much-needed translation services, and for the "rules of the road" project. U.S. troops in Bosnia have played significant roles, either directly or in support capacities, in the apprehension of four indictees. Special Representative Robert Gelbard has been instrumental in negotiating the voluntary surrender of 10 other indictees to stand trial before the Tribunal.
In the last year, the number of indictees taken into custody in The Hague has more than tripled, from eight to 28. Many of those indicted for genocide who were at large a year ago are no longer at large. We recognize that our work is not finished, and that much more needs to be accomplished. We share the impatience and frustration arising from the fact that some of the major indictees, including Radovan Karadzic and Ratko Mladic, remain at large. But their day before the Yugoslav Tribunal will come; there are no deals to cut. If either were to surrender, his trial in The Hague will be fair, and he will ensure his safety and the safety of those around him. The Administration will continue to keep its options open to seek the prosecution of all indictees in The Hague.
In this respect, federal law has required since last year that the Secretary of State determine where the "competent authorities" in a country, entity, or canton have failed "to take necessary and significant steps" to apprehend publicly indicted war criminals, with the consequence being the termination of U.S. bilateral aid and non-support of multilateral aid unless the Secretary waives the restrictions. That determination has been made with respect to Republika Srpska and Serbia-Montenegro. In some instances she has exercised her waiver authority for Republika Srpska in order to further the overall objectives of the Dayton Peace Accords and promote the more moderate leadership in Banja Luka.
The U.S. Government carefully vets each U.S. bilateral assistance project to see that it will not benefit publicly indicted war criminals. We are working hard to make this procedure work. While we do not have the same power over multilateral assistance projects, we work carefully with international lending financial institutions to minimize the likelihood that any assistance will go to publicly indicted war criminals.
One issue that receives little public attention is the critical need for tens of thousands of Croatian Serb refugees to return to Croatia. One key to their return is removing fear of domestic arrest on war crimes charges arising from the conflict between Croatia and Croatia's ethnic Serbs between 1991 and 1995. That political imperative is critical to reconciliation in the region and to the acceptance of Croatia as a modern European nation. Ethnic cleansing by exclusion can be as destructive as ethnic cleansing by expulsion. Croatia recently said it was granting official amnesty to 13,575 Croatian Serbs, but they have so far refused to confirm that their amnesty extends to all ethnic Serb refugees from Croatia. We find the misguided methodology employed by the Croatian authorities lacking in the key requirement to restore confidence in the minds of those Croatian Serbs who wish to return to their homes. One important role for the Yugoslavia tribunal is to help prevent war crimes charges from being used as a political weapon that prevents people from returning to their homes. Primary jurisdiction for war crimes charges remains with the Yugoslav Tribunal, and we will continue to press Zagreb to work closely with the Tribunal.
Despite U.N. approval of the full budget request for 1998 for the Yugoslav Tribunal, we have recognized through our recent voluntary contributions the need for additional resources in The Hague. But even more support is likely to be needed before the next budget request is submitted later this year, particularly as more indictees arrive to stand trial. The United States is addressing the need to form a new chamber of judges in the Tribunal to handle the expanding trial work in a manner that accords with the due process rights of the defendants. ICTY President Gabrielle Kirk McDonald has sought this additional support. We recognize that any such expansion would necessitate an increase in the staff and resources of the Office of the Prosecutor and of the Registry. For example, we want to see the Victim and Witness Unit adequately staffed. Therefore, the financial resources required for expanding the ICTY will be substantial, and additional expert staff will need to be employed or seconded in a timely manner. We will continue to press the U.N. Secretariat and other governments to take a commonsensical and logical approach to the entire secondment issue so that the unique mandated requirements of the two ad hoc tribunals can be met.
Also on the issue of resources, there is a related point I must make. At the very moment in world history when the United States can make the critical difference in waging peace, by joining with others to enforce international law, advancing vital national security interests, and bringing war criminals to justice, our credibility and our influence with other governments is needlessly and foolishly at risk. The failure of the United States to pay its U.N. debts for years has had severe repercussions in the exercise of American foreign policy. As Secretary Albright has said, we are the indispensable nation, but we cannot go it alone. We were pleased last year to receive bipartisan support for legislation that would put us well on the way to satisfying our obligations at the United Nations. 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. The American people must not let this happen again. As we insist that reform at the United Nations goes forward, the United States has a responsibility to pay our debts to the U.N.
We are also working to help with efforts to deploy a multinational team of investigators to Kosovo at the Tribunal's request. The failure of Serb authorities to issue visas for the investigators shows once again the extent to which Belgrade obstructs the Tribunal's work. That at least three top indictees of the Tribunal live freely and openly in Serbia remains one of Serbia's more blatant violations of its obligation to cooperate with the Tribunal. This lingering situation only adds more bricks and mortar to the "outer wall of sanctions."
As for the work of the Yugoslavia Tribunal, we can say at this time that, under the skilled leadership of Justice Louise Arbour, the Chief Prosecutor, and President McDonald, the Yugoslav Tribunal's course is set and its sails are unfurled. We must ensure that the weather remains fair and the winds strong so that those who navigate the Tribunal can complete their pioneering journey.
The Rwanda Tribunal
Justice Arbour also serves as Chief Prosecutor of the Rwanda Tribunal, and Judge McDonald presides over its Appeals Chamber. The United States strongly supports the Rwanda Tribunal. We have made $31 million in assessed payments to date and $4.3 million in voluntary cash and in-kind contributions. We actively sought, and were pleased the U.N. General Assembly approved, the full budget request for 1998 for the Rwanda Tribunal. 23 of 32 publicly indicted persons are in custody at the Rwanda Tribunal's headquarters in Arusha, and four of those are now being prosecuted in three trials. Of those indictees in custody, many are the top leaders of the 1994 genocide. Prosecution and defense have rested in the trial of Jean-Paul Akayesu and the judges are deliberating. We fully expect that further investigations will lead to more indictments and trials.
President Clinton said last week in Kigali that the United States will "continue to pursue justice through our strong backing for the International Criminal Tribunal for Rwanda. The United States is the largest contributor to this tribunal. We are frustrated, as [are the Rwandan people], by the delays in the tribunal's work, and we know we must do better. Now that administrative improvements have begun, however, the tribunal should expedite cases through group trials and fulfill its historic mission."
We have encouraged officials of the Rwanda Tribunal to examine carefully the merits of group trials and to do everything possible to better manage the conduct of the trials and the workloads of the judges so that defendants are tried in a timely manner. The needlessly slow trial work, despite all of the handicaps and hardships endured by the Tribunal, has tarnished the credibility of the Tribunal and created significant difficulties for the Rwandan Government as it seeks to promote reconciliation and to dispose of its own colossal caseload of approximately 130,000 suspects.
If it can indeed be shown that the genocide of 1994 was orchestrated by a group of leaders from a cross section of society acting as conspirators, and they can be prosecuted as a group, not only would the efficiency of the Rwanda Tribunal's work be significantly improved and defendants tried more quickly, there would be a powerful, Nuremberg-like signal sent to the people of Rwanda. They would see the way in which men and women conspired, at the highest levels of Rwandan society, to unleash a genocidal assault. The lesson of Arusha will, we hope, help shape a better future for Rwanda.
President Clinton said in Kigali that, "We are prepared to help, among other things, with witness relocations so that those who still fear can speak the truth in safety. And we will support the war crimes tribunal for as long as it is needed to do its work, until the truth is clear and justice is rendered." In these respects, we will be working on witness relocation agreements with both ad hoc tribunals. Also, we stress that the mandate of the Rwanda Tribunal will continue until its work is done, and we fully expect that it will take a number of years to accomplish that.
The U.N. Inspector General recently released his second report on the management and work of the Rwanda Tribunal. He identifies progress in the work of the Prosecutor and Deputy Prosecutor, an anticipated "busy and crowded trial calendar" for the judges, and considerable shortcomings (mixed with some progress) in the Registry of the Tribunal. The United States finds much merit in the Inspector General's overall assessment and we hope that the Registry, in particular, will improve its performance dramatically in the months ahead. There simply is no justification for further inefficiencies or administrative gridlocks.
Here in the United States, one Rwanda Tribunal indictee, Elizaphan Ntakirutimana, was re-arrested one month ago after he was released from detention on December 17 by a Federal Magistrate Judge in Laredo, Texas. The State and Justice Departments worked closely with Prosecutor Arbour, Deputy Prosecutor Muna, and Registrar Okali to re-file our request that Ntakirutimana be transferred to Arusha to stand trial for genocide and other crimes. The United States firmly believes that the legislation implementing its cooperation agreement with the Tribunal is constitutional and that probable cause exists to transfer Ntakirutimana to Arusha. We will continue to pursue this case vigorously in federal court.
I do not want to leave this focus on the Rwanda Tribunal without emphasizing the great importance of President Clinton's acknowledgment in Kigali last week regarding the genocide of 1994 and the use of refugee camps afterwards as safe havens for the genocidaires. The President said that we did not immediately call the crimes by their rightful name, genocide, and that we did not act quickly enough after the killing began. The President pledged "to increase our vigilance and strengthen our stand against those who would commit such atrocities in the future," in Rwanda or elsewhere. He called for preventive efforts and for quick actions to minimize the horror when it is unleashed. The United States recognizes that in the future:
-- We need to heed the warning signs of genocide.
-- Officially-directed massacres of civilians of whatever numbers cannot be tolerated, for the organizers of genocide must not believe that more widespread killing will be ignored.
-- "Neutrality" in the face of genocide is unacceptable, and must never be used to cripple or delay our collective response to genocide.
-- The international community must do everything it can to respond quickly enough to confront genocidal actions.
-- The consequences of genocide are not only the horrific killings themselves, but the massive refugee flows, economic collapse, and political divisions which tear asunder the societies that fall victim to genocide. The international community pays a far higher price coping with the aftermath of genocide than if it were prepared to defeat genocide in its earliest stages.
Our Great Lakes Justice Initiative, which the President advanced in Kigali and Kampala last week, is the most ambitious effort to address justice priorities at the domestic level in the history of that region. We hope it will help shore up the capabilities of local authorities to advance the rule of law in that troubled region and deter future acts of genocide or other violations of international humanitarian law. The Initiative also will address the needs of the Rwanda Tribunal.
A Permanent International Criminal Court
President Clinton and Secretary of State Madeleine Albright have long called for the establishment of a permanent international court, and they want it done by the end of this century. Last week, in Kigali, the President pledged that "the United States will work to see that it is created."
As head of the U.S. delegation negotiating the permanent court, I am keenly aware that the road to Rome remains steep. But the critical need for a permanent court, and the vital role the United States can play in its establishment and operation, compels our best efforts.
The Clinton Administration believes that a core purpose of an international criminal court must be to advance a simple norm: countries should bring to justice those who commit genocide, crimes against humanity, and war crimes, or turn suspects over to someone who will, such as an impartial and effective international court.
Our long-term vision is the prevention of heinous crimes through effective national law enforcement buttressed by the deterrence of an international court. The permanent court must ensure that national legal systems with the will and ability to prosecute persons who commit these crimes are permitted to do so, while guaranteeing that perpetrators of these crimes acting in countries without competent, functioning legal systems nonetheless will be held accountable.
In that spirit, the U.S. delegation introduced a proposal last week that would strengthen the principle of "complementarity" that requires deferral to capable national judicial systems. The U.S. proposal states that when a matter (that is, a situation in which crimes within the jurisdiction of the court may have been committed) has been referred to the Court, a State may step forward and commit itself to investigating its own citizens or others within its jurisdiction who may be suspects for commission of crimes in that matter. If the Prosecutor defers to that State, then there should be a certain period of time to allow the State to take the lead, following which the Prosecutor can challenge the State's performance if it proves lacking.
On the other hand, right at the outset the Prosecutor may decide that the requesting State's legal system has collapsed or is unavailable, or it is unable or unwilling to genuinely investigate and prosecute the suspects. Under those circumstances, the Prosecutor may seek the views of the Court to uphold or deny the decision to override State jurisdiction. The issue could be appealed to the Appeals Chamber, where a super-majority number of the Appeals judges would need to approve the Prosecutor's decision to launch investigations. We anticipate that expedited procedures for the judges' actions could be formulated in the Rules of the Court.
This proposal is extremely important to the United States Government. In our view, it takes account of our interest in protecting against unwarranted prosecutions of our nationals, as well as nationals of other responsible members of the international community, while ensuring the prosecution of those who should be brought before an international tribunal. Our proposal also seeks to honor a fundamental tenet of the principle of complementarity, namely, that at the outset of a referral of an overall matter, a State can seize the opportunity to enforce the law itself provided it is capable and willing to do so. Other governments are examining this proposal closely and the non-governmental community is beginning to comment on it.
Because of its responsibilities for international peace and security, the U.N. Security Council must have an important role in the permanent court's work. The jurisdiction of the court will involve many conflicts that are properly being addressed by the Security Council. The court cannot be used to undermine the Council's critical work. Governments need to agree on how to preserve this vital role for the Council while pursuing justice.
The Security Council also should be able to refer armed conflicts or atrocities to the court for investigation and direct all countries to cooperate with the court if necessary. The Council may need to assist the court with the enforcement of its orders.
Many governments and non-governmental organizations seek a prosecutor who can self-initiate investigations and seek indictments against anyone anywhere. Justice Arbour has spoken eloquently in support of this proposition. However, we believe there must be reasonable limits on the prosecutor's scope of action and reasonable procedures which will activate the prosecutor's powerful duties.
We have proposed that first a State Party to the treaty or the Security Council must refer an overall matter to the court. Then, provided the crimes are sufficiently grave, the prosecutor would be free to investigate the situation and prosecute alleged perpetrators. This would mirror the Yugoslav and Rwanda Tribunals and ensure that the prosecutor has the necessary backing to get the job done. If neither any State Party nor the Security Council believes that a situation should be referred to the Court, that speaks powerfully against the need or wisdom of court involvement.
At this session of the Preparatory Committee the U.S. delegation has been particularly concerned about complications in negotiating the fundamental stages of the criminal process. The draft statute before us (the Zutphen draft) is a procedural tower of Babel. We, along with a number of other delegations, believe it is imperative to develop a straightforward, simplified procedure that can stand as a common vision for delegations from a variety of jurisdictions and legal traditions. Absent that, there was growing concern among responsible States, including the United States, that either we would find the procedural problems unraveling the Rome Conference or we would have a court whose procedures at best would be confusing and at worst irrational.
For example, there needs to be a single method for arrest of a person based upon an independent judicial determination of probable cause. In lieu of two or three different concepts in the negotiations about how one confirms or formalizes charges, there needs to be a form of preliminary hearing that satisfies civil and common law jurisdictions alike. Between those two stages, procedures for arrest and surrender by national authorities needs to be controlled by provisions of the statute which require much higher levels of agreement. While such issues may not be the grist of public debate, they are the gut of the Court's statute and negotiators' most time-consuming endeavor. The outcome of this proposal remains open, but the reaction so far has been very encouraging.
What hard realities--beyond theory--must we all consider in connection with the negotiations for a permanent international criminal court? First, the permanent court must not handcuff governments that take risks to promote peace and security and undertake humanitarian missions. It should not be a political forum in which to challenge legitimate actions of responsible governments by targeting their military personnel for criminal investigation and prosecution. Human rights groups advocating speedy military interventions to save human lives should be most sensitive to this reality. Otherwise, ironically, a permanent court would undermine efforts to confront the worst assaults on humankind.
Many countries shoulder the burden of international security. The U.S. military, in particular, is called upon to carry out mandates of the Security Council, to help defend our allies and friends, to achieve humanitarian objectives, to combat international terrorism, to rescue Americans and others in danger, to prevent the proliferation or use of weapons of mass destruction, and to defend our national security from a wide range of threats. Other governments participate in our military alliances or in U.N. or other multinational peacekeeping operations. Our armed forces are deployed globally and need to be able to fulfill their legitimate responsibilities without unjustified exposure to criminal legal proceedings.
The second reality we must recognize is that an international criminal court stands a good chance of being established in the near future, indeed by the end of this century as the President has sought. It is imperative that the United States continue to play a leading role in the negotiations. A permanent international criminal court of this character would issue indictments and decisions that would help write the laws of war for the next century and thus influence the law governing the conduct of U.S. military forces. So we care about this process for very important reasons. If such a court is to succeed, it will need the United States as its strongest pillar of support. It has demonstrated time and again that when its diplomatic, economic, or military clout is needed to achieve the aims of international justice, the world looks to the United States for assistance.
The President and Secretary Albright regard the establishment of the Yugoslavia and Rwanda war crimes tribunals as one of the most important advances we have made in establishing the rule of law and international accountability for some of the worst crimes of the late Twentieth Century. The opportunity now before us--to create an effective international criminal court--should deter a recurrence of some of these crimes in the next century, and bring to justice those perpetrators who must not rule our future.
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