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David Scheffer
Ambassador at Large for War Crimes Issues
U.S. Department of State
Address Before the Committee of Conscience
Holocaust Museum, Washington, DC, April 22, 1998

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Responding to Genocide and Crimes Against Humanity

It is a great honor for me this afternoon to address members of the Executive Board and of the Committee of Conscience of the Holocaust Museum. I want to thank Professor Thomas Buergenthal for inviting me to discuss contemporary responses to genocide and crimes against humanity. In addition to his distinguished academic and judicial career, Professor Buergenthal is the U.S. Representative to the U.N. Committee on Human Rights where he has been a major influence in protecting universal norms enshrined in the International Covenant on Civil and Political Rights. He is an inspiration for those of us who must carry into the 21st Century the same duty he has performed in this century, namely to remember the evil of genocide and to enforce the law that seeks to prevent and punish genocide.

Twenty-five years ago, as a college student, I scarcely fathomed how relevant genocide would be for the future. The Holocaust of World War II characterized genocide, inspired the drafting of the Genocide Convention, and rendered unimaginable similar acts of sheer brutality. Genocide seemed, at that time, a historical phenomenon that resonated powerfully in the conscience of this nation and of much of the international community. This museum is an extraordinary messenger of history and research center of an event that truly frames the issue. But that issue--genocide and its companion in evil, crimes against humanity--has been a common, contemporary phenomenon in the last quarter of the 20th Century. There are not only more museums to build to record shameful episodes in our immediate past, but we carry a heavy responsibility to defeat the demons of genocide and crimes against humanity.

Since the early 1970's, genocide or widespread crimes against humanity have engulfed Rwanda, Cambodia, Iraq, the former Yugoslavia, and Burundi. A few weeks ago, in Kigali, Rwanda, President Clinton 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.

A few months earlier, in her December 1997 address to the Organization of African States in Addis Ababa, Secretary of State Madeleine Albright also addressed the Rwandan genocide. She said, "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." She said that the United States will carefully control future funding "to ensure that humanitarian aid is not used to sustain armed camps or to support genocidal killers, to find more effective ways of preventing conflict and reconciling former adversaries, to achieve justice and accountability in the aftermath of large-scale human rights violations and to resist the emergence of new tyrannies."

Our Great Lakes Justice Initiative, which the President and Secretary Albright have advanced in recent months, is the most ambitious effort to address justice priorities at the domestic level in the history of central Africa. We hope this $30 million effort will help shore up the capabilities of local authorities to advance the rule of law in the Great Lakes region and deter future acts of genocide or other violations of international humanitarian law. A significant portion of the Great Lakes Justice Initiative will be directed towards processing the genocide cases of the 130,000 suspects detained in Rwandan jails. The Initiative also will address the needs of the International Criminal Tribunal for Rwanda. We are formulating specific programs now to implement the Initiative. We will be reaching out to the private sector in the United States to seek partners in this endeavor.

It has indeed taken some time for the U.S. government to come to grips with the essential need to react quickly to the commission of genocide and crimes against humanity, as indeed they continue to challenge the political will of the international community far beyond our own shores. Determining whether genocide or widespread or systematic crimes against humanity have occurred requires us first to try to find out what are the facts. Identifying genocide as it unfolds is no simple endeavor despite its obvious character when viewed in retrospect. Media accounts must be weighed with diplomatic observations and intelligence reports. Nor is it possible, usually, to ascertain easily--in real-time--the necessary intent required by the Genocide Convention to establish the crime of genocide.

In order to achieve the prosecution of the crime of genocide and crimes against humanity, the United States has strongly supported the creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, each of which includes these crimes as part of its jurisdiction. The definition of genocide for each tribunal is drawn from the Genocide Convention. The judges have not hesitated to confirm indictments for the crime of genocide. Seven individuals have been indicted for genocide before the Yugoslav Tribunal. Two of those indicted for genocide who were at large a year ago are now in custody, a third died resisting arrest. It is significant to note that the total number of indictees taken into custody by the Yugoslav Tribunal has almost quadrupled in the last year, from 8 to 31. For the Rwanda tribunal, a year ago, 11 were in custody. Today, that number has more than doubled to 23. Of the 32 indicted by the Rwanda tribunal, most are charged with genocide.

In Kigali, President Clinton said 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 Rwanda Tribunal, has tarnished the credibility of the Rwanda Tribunal and has 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 of genocide.

The Prosecutor indeed has lodged an indictment request grouping 29 individuals into one conspiracy to commit genocide in Rwanda in 1994. This request is now on appeal. If it can 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 be significantly improved and defendants tried more quickly, but 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.

Allow me to address, at this juncture, the genocide and crimes against humanity that occurred in Cambodia from 1975 to 1979 under the rule of Pol Pot. Accountability for crimes committed on such a huge scale has been delayed far too long. The complex challenge of gaining custody of the top Khmer Rouge leaders who perpetrated these crimes has been a primary obstacle to justice. But the Clinton Administration has consistently sought to bring Khmer Rouge leaders to international justice. During the last year, we have undertaken many concentrated efforts as opportunities began to develop to bring these individuals to justice. The recent fate of Pol Pot followed the precipitous collapse of the Khmer Rouge who defected in large numbers to the Cambodian Army and thus exposed the Khmer Rouge leaders to possible capture. We are disappointed that Pol Pot did not face a court of law. But a number of top Khmer Rouge leaders remain at large. The President and Secretary Albright are determined that they be brought to justice. We will continue to vigorously pursue that objective, including efforts in the region as well as in the Security Council to establish the judicial mechanism to investigate and prosecute senior Khmer Rouge leaders.

Another current development in the area of war crimes issues brings us back to echoes of the Holocaust. Just this month, we learned of the case of Dinko Sakic, who admitted on Argentine television on April 6 that he was the commander of the Jasenovac death camp in World War II Croatia. Some consider Sakic to be the most notorious World War II-era war criminal still at large today. At least tens of thousands, and perhaps hundreds of thousands, were killed at Jasenovac. According to a captured German document, in December 1943, Nazis in the Balkans were reporting to Berlin midway through the war that 120,000 people had already been killed at Jasenovac. The camp obviously continued to operate almost through the end of the war. By any account, whoever commanded the camp must be put on trial.

At present, the Government of Argentina has expressed a willingness to extradite Sakic so that he can be tried. The United States Government is committed to seeing that Dinko Sakic is vigorously prosecuted and that he receives a fair trial. Both Croatia and Serbia have expressed publicly their interest in seeking his extradition. Croatia's Ambassador Zuzul has given the U.S. Government assurances that Sakic will receive a fair and serious trial in Croatia, and that any and all international observers will be welcome to attend the proceedings. When we look at the efforts other European countries have made, and are still making, to confront the Holocaust, we expect nothing less from a Croatia that looks to be part of Europe in the 21st century. The United States expects that the Sakic case will be prosecuted vigorously, that the trial will be open to international observers and the media, and that everyone with evidence to give--no matter from what country they may come--will be welcomed and heard by the Croatian judicial system. The Sakic case shows, as Secretary Albright has said, that there is no statute of limitations for genocide. The American people and their government will be paying close attention to the Sakic case to see that, in the end, justice is done in Croatia just as it has been done elsewhere in Europe.

Our ongoing efforts to see genocide punished have also given rise to a renewed public debate over how genocide can best be prevented. I know this is a central concern of the Committee of Conscience. Your mission will be to deliberate upon what are some of the most solemn questions anyone can be called upon to address. Recognizing I am in the presence of giants such as Tom Buergenthal, I would like to address two modest points to consider in your deliberations.

First, I would like to address the legal question of what genocide is. The Genocide Convention condemned conduct that everyone agreed deserved to be condemned, but that very act means we have to address important questions before actual prosecutions for genocide can begin. For example, there will continue to be factual controversy and theoretical debate over whether specific acts constitute genocide. As the President has said, we need to be willing to identify genocide as soon as we can. But we also need to ensure that any such description of heinous crimes does not trivialize the crime of genocide or ignore the severity of crimes against humanity, both which should be regarded with outrage by civilized peoples.

One of the most important issues that would come before the Committee of Conscience in making a statement that genocide has occurred is the requirement that there must be "intent" to commit genocide. The question of intent is necessarily difficult to prove without clear documentation--e.g., written policies, orders, or express statements--and is ultimately a question of the intent of particular individuals. Intention may, however, be inferred from the circumstances.

Another important issue is that the specific intent must be one to destroy in whole or in substantial part a national, ethnical, racial or religious group as such. The U.S. Senate described "substantial" in this context as meaning a sufficient number to "cause the destruction of the group as a viable entity." For example, if an individual was involved in the killing of a substantial number of members of a protected group, as part of an overall policy of "ethnic cleansing," one might reasonably conclude that he had the requisite intent to commit genocide.

The U.S. Government has been of the opinion since 1993 that genocide occurred in Bosnia. For Rwanda, we reached this conclusion in May of 1994. We are today supporting the work of the Yugoslavia and Rwanda war crimes tribunals to determine which individuals should bear the responsibility for the genocide that occurred, as well as responsibility for crimes against humanity and war crimes.

Let me now mention a second point of interest to the deliberations of the Committee of Conscience. There needs to be a better understanding of Article II of the Genocide Convention. Under Article II, States Parties confirm that genocide, whether committed in time of peace or war, is a crime under international law that they undertake to prevent and punish. The U.S. Senate, in ratifying the Genocide Convention, understood this to express the general purpose and intent of the States Parties, without adding any independent or specific obligation to the Genocide Convention. A State Party may choose from among a range of measures-- diplomatic pressure, economic sanctions, judicial initiatives, or the use of military force--to "undertake" to prevent or punish genocide. But the State Party's choice is necessarily discretionary. No government should be intimidated into doing nothing by the requirements of Article II; rather, every government should view it as an opportunity to react responsibly if and as genocide occurs.

Our experience with genocide points to some important lessons:

-- 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 respond quickly 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 that tear asunder the societies that fall victim to genocide. The international community can pay a far higher price coping with the aftermath of genocide than if it were prepared to defeat genocide in its earliest stages.

Before I change subjects, I want to say something briefly about the role of the Committee of Conscience in deliberating upon crimes against humanity apart from the crime of genocide. History teaches us that we have to be prepared to respond to situations of widespread and systematic killing, rape, or other abuses--and that those deserve the same moral condemnation, criminal prosecution, and efforts to prevent and to punish that we give to the crime of genocide. Crimes against humanity can occur--and have occurred--in situations where the specific requirements of genocide have not been met. How we should deal with crimes against humanity is a subject that deserves another speech--but I'm going to leave it open for now. After all, I want to encourage Tom to invite me back. I would like to turn, instead, to the subject of the permanent international criminal court.

A Permanent International Criminal Court

President Clinton and Secretary Albright have long called for the establishment of a properly constituted permanent international court, and they want it done by the end of this century. In Kigali, the President pledged that "the United States will work to see that it is created."

The last Preparatory Committee session ended in New York recently. While good progress was made by experts from more than 100 countries, the draft statute of the court remains heavily bracketed and major issues remain unresolved. As head of the U.S. delegation negotiating the permanent court, I am keenly aware that the road to Rome, where a diplomatic conference will be convened this summer to conclude the statute of the court, 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, widespread or systematic crimes against humanity, and large-scale commission of war crimes, or turn suspects over to someone who will, such as an impartial and effective international court.

Allow me to emphasize a particular point about the treatment of war crimes by the proposed court: The United States is deeply concerned that at this late stage in the negotiations certain fundamental tenets of international humanitarian law applicable to non-international armed conflict are still being questioned. We believe that contemporary international law makes it clear that no armed conflict nexus for crimes against humanity is required. The United States believes that crimes against humanity must be deterred in times of peace as well as in times of war and that the ICC Statute should reflect this principle. In our view, it is essential that serious violations of the elementary customary norms reflected in common Article 3 of the Geneva conventions of 1949 should be the centerpiece of the ICC's subject matter jurisdiction with regard to non-international armed conflicts.

In addition to the common Article 3 crimes, we believe it is good international law, and good policy, to make serious violations of at least some fundamental rules pertaining to the conduct of hostilities in non-international armed conflicts a part of the ICC's jurisdiction.

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. Where national legal systems can assume their responsibilities, then the permanent court is not required.

In that spirit, on March 25, the U.S. delegation to the Preparatory Committee session submitted a proposal to strengthen the principle of "complementarity" in the draft statute. It has never been clear in that draft how deferral to national jurisdictions in fact would be effected at the outset, when matters are first referred to the court. It has become evident in recent months that many governments support a procedure whereby overall matters are referred to the court following which the prosecutor would investigate and seek indictments against individual suspects. If that becomes the adopted procedure, then we believe that the principle of complementarity should be recognized at the outset of any referral of a matter to the court in addition to any later stage of investigation of individual cases by the prosecutor.

The U.S. proposal states that when a matter has been referred to the court, the Prosecutor would make such referral known by public announcement and by notification to all States Parties. Public acknowledgment of a referral of large-scale "matters", as opposed to the filing of a complaint against an individual suspect, should not be objectionable. Investigations by the Prosecutor of individual suspects can, of course, remain confidential and need not be publicized. When the referral is made known, a State may step forward and inform the Prosecutor that it is undertaking the responsibility to investigate its own citizens or others within its jurisdiction who may have committed crimes in the referred matter.

Alternatively, the Prosecutor can determine at the outset that the States are unwilling or unable genuinely to carry out the investigation and prosecutions; in other words, the criteria for admissibility appear to apply. In that event, the Prosecutor would seek confirmation from the Pre-Trial Chamber and, if the judges concur, the Prosecutor would launch the investigation.

We have provided that the Pre-Trial Chamber's preliminary ruling could be appealed to the Appeals Chamber, where a super-majority of the judges of the Appeals chamber would need to approve the Prosecutor's commencement of investigation.

The Prosecutor will need the cooperation of States and the support of the international community in order to be effective. We believe that our proposal reflects reality, namely, that a State that is capable and willing to investigate such crimes should not be burdened with, and indeed may resist, cooperation with an ICC investigation not merited under the principles of complementarity. On the other hand, States that have no intention of investigating the crimes or cooperating with the Prosecutor will proceed with their own agenda regardless of the court's orders for access to witnesses and evidence.

This proposal is extremely important to the United States Government. In our view, it takes account of our interest in protecting against unwarranted investigation and prosecution of persons who are being investigated by their own national authorities, while ensuring the prosecution of those who should be brought before an international court. 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 assert its responsibility to enforce the law itself provided it is capable and willing to do so.

We also submitted a proposal at the Preparatory Committee session that illustrates how a set of criminal elements, annexed to the Statute, might appear. We believe there is a clear need to define crimes with the clarity, precision and specificity many jurisdictions require for criminal law, and that criminal elements are a fundamental requirement for a successful criminal statute. We understand that different criminal justice systems function with different levels of specificity, but if the international criminal court is to enjoy the widespread acceptance, recognition and respect that it must have to function appropriately, it must not have standards of criminal justice that are less rigorous than those of its member states. Considering the seriousness of the crimes and penalties in these cases, specificity becomes an issue of fundamental fairness.

The essence of this entire effort is the preeminence of the rule of law. This law binds alleged perpetrators as well as the prosecutors and judges that make them accountable. The elements must be a part of the statute; they carry with them the rigor that gives a criminal tribunal its authority as an institution under the law. How can we ask the global community to accept the jurisdiction of a court, when we cannot even agree on the nature of the activity that would be considered a crime?

We do not believe the court should become operational before the elements are adopted. And this, of course, is also true about the need to adopt rules of evidence and procedure before the court becomes operational. Our proposal is designed to create a truly viable and effective permanent court that deserves the authority and responsibility we give it.

Because of the U.N. Security Council's responsibilities for international peace and security, and also because the Council alone among international institutions exercises police powers, the design of the court must take into account the proper role of the Council. 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. However, we believe there must be reasonable procedures that will activate the Prosecutor's powerful duties and the extensive--and expensive--mechanism of the court.

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 the recent session of the Preparatory Committee, the U.S. delegation was particularly concerned about complications in negotiating the fundamental stages of the criminal process. Under U.S. leadership, a number of delegations developed 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 that 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 are prepared to take risks to promote peace and security and to undertake humanitarian missions. It should not be a political forum in which to challenge controversial 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 are our partners in such efforts and 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. If such a court is to succeed, it will need the United States as its strongest pillar of support. It has been demonstrated time and again that when diplomatic, economic, or military clout is needed to achieve the aims of international justice, the world looks to the United States for assistance.

A few months ago, at Secretary Albright's direction, I visited a massacre site in Rwanda where hundreds of Tutsis had just been slaughtered, and hundreds more seriously wounded by insurgents whose aim is the resurgence of genocide in that tortured country. We must challenge this kind of barbarity. A properly constituted international criminal court will fortify efforts to render justice and help deter the heinous crimes that continue to mar our own era.

Thank you.

[end of document]

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