David J. Scheffer
Ambassador-at-Large for War Crimes Issues
U.S. Department of State
Address before the Commonwealth Club
San Francisco, California, May 13, 1998
Seeking Accountability for War Crimes: Past, Present and Future
I am very pleased to be here in San Francisco, before this distinguished audience, to have the opportunity to talk about how we are working today to seek accountability for war crimes--past, present and future. San Francisco is an especially appropriate place for me to do this, for it was here, more than 50 years ago, that delegates from around the world met to establish the United Nations. With the active participation of the United States and other nations whose forces helped defeat fascism, the United Nations has played an important role in the last 50 years in building support for the rule of law in international affairs.
We are on the threshold of what is, in many ways, a new era in international affairs. Fifty years ago, in response to atrocities committed in Europe and in Asia, the victorious Allied powers established international criminal tribunals at Nuremberg and Tokyo. Those tribunals helped set a standard of law that has influenced the conduct of nations ever since. Today, we are on the eve of a diplomatic conference in Rome to establish a permanent international criminal court that holds the potential for sustaining the lessons of Nuremberg and Tokyo far into the future. Those lessons are desperately needed, for the sad reality of our times is that the most grievous crimes known to humankind -- genocide, crimes against humanity, and war crimes -- are being committed with alarming frequency. We have a responsibility, in this generation of Americans, not only to respond to these heinous crimes, to this barbarity, with effective mechanisms of accountability and real-time measures, but also to deter the commission of such crimes in the future. That is why the global effort to establish a permanent international criminal court is important and why the United States is deeply engaged in negotiating its jurisdiction and operation.
Before I discuss the permanent court talks which will move to Rome this summer, I want to review some of the current developments in seeking accountability for war crimes.
The latest outrage is occurring today in the West African country of Sierra Leone. Rebel troops from the former military junta have launched a campaign they call "Operation No Living Thing." A regional peacekeeping force recently helped restore the democratically elected government. The rebels have now begun to target the civilian population through their "Operation No Living Thing" and are seeking to annihilate or drive people out of large areas of northern and eastern Sierra Leone. On the order of a hundred thousand refugees have fled to the neighboring countries of Guinea and Liberia. Our Ambassador in Freetown and State Department officials have visited survivors and heard stories of entire villages being slaughtered or mutilated by rebel forces. Over 100 victims are being treated in Freetown hospitals after rebels used machetes to chop off their arms, legs, and/or ears. Thousands more have died before they were able to reach medical help. What is happening in Sierra Leone is clearly a gross violation of international humanitarian law. There is every indication that such criminal conduct will intensify in the days ahead as rebel forces move through the countryside.
On Monday, the United States strongly condemned the rebels' horrific actions and urged its leadership to order an immediate end to the senseless slaughter, mutilation, and torture of the rural civilian population in Sierra Leone. We also cautioned other governments not to collaborate in any criminal activity by assisting the rebel forces. We urge all regional governments to give immediate support to the regional peacekeeping force so it can put an end to these atrocities. We are working to get logistical aid to the regional peacekeeping force stationed in Sierra Leone so that it can move quickly enough to confront the rebel advances. The Administration's Assistant Secretary of State for African Affairs, Susan Rice, has been in Europe, seeking European condemnation and action regarding the gross abuses of international humanitarian law. Other measures also are being examined on an urgent basis. The perpetrators of these crimes against humanity may not face justice today, or tomorrow, but their criminal conduct is condemned by the world and will not be forgotten. They remain accountable under the law for every death and for every mutilation, and we hope that some day the most fundamental tenets of civilized conduct can be enforced against them.
Ad Hoc War Crimes Tribunals
The work of the International Criminal Tribunal for the Former Yugoslavia continues to make good progress. Secretary Albright will be visiting the Tribunal on Friday. The United States has been the Tribunal's strongest supporter. Several years ago, cynics were telling us the Tribunal would never succeed--that justice was just too hard. We don't hear too much from those people any more. In the last 13 months, the number of indictees taken into custody in The Hague has almost quadrupled, from 8 to 31. Three others are deceased, and today there are only 32 publicly indicted war criminals at large. The Tribunal is undertaking important new investigations, most recently to locate bodies of 7,000 men killed after the fall of Srebrenica in July 1995.
At the time we are helping to bring ever more indictees to The Hague, we are working to ensure that the Tribunal has adequate resources to try them promptly and fairly. The U.N. approved the full budget request for 1998 for the Yugoslav Tribunal, and we have made important voluntary contributions to fill urgent Tribunal needs. One of the most urgent needs has been additional judges and courtrooms. Secretary of State Madeleine Albright announced in December that we were contributing to the cost of a much-needed additional courtroom. We have been working in the Security Council to secure the approval of an increase in the number of judges so that the work of the Tribunal can continue to progress. We recognize that this expansion will also involve an increase later this year in the staff and resources of both the Office of the Prosecutor and of the Registry.
The coming weeks and months will see the start of a number of important trials, including the Yugoslavia Tribunal's first two trials for genocide. We recognize that our work is not finished, and that 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. Radovan Karadzic and Ratko Mladic have no future other than to stand trial in The Hague. Each has been delegitimized, thanks in no small part to the indictments handed down by the Yugoslav Tribunal. Their influence declines with every passing day, and the new political leadership of Republika Srpska offers them no hope that this will change. There are no deals they can 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 Arusha, 23 of 32 individuals indicted for the genocide of 1994 in Rwanda are now in the custody of the International Criminal Tribunal for Rwanda. Many are the top leaders of the genocide. President Clinton, during his recent visit to Kigali, pledged 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."
A few days ago, former Rwandan Prime Minister Jean Kambanda pled guilty to genocide before the Tribunal. Given his high position in the former Rwandan Government in early 1994, the significance of this plea cannot be underestimated. We hope that as the judgments of the Rwanda Tribunal are delivered in the months ahead and new trials commenced, the importance of this international criminal procedure will become better known and appreciated. The people of Rwanda need to know that international justice indeed is being rendered.
The past has not been forgotten in Southeast Asia either. The atrocities that consumed Cambodia from 1975-79 under the Pol Pot regime resonate even today. The Khmer Rouge leadership remains at large avoiding justice for the crimes committed under their horrific reign. The United States is determined they will face justice. As the Khmer Rouge forces have collapsed in recent weeks, we have been seeking means to ensure their safe custody and ultimate investigation and prosecution before a competent court of law. We have introduced a resolution in the Security Council that would create a new ad hoc tribunal of limited scope and structure to brings these individuals to justice. I was recently in Cambodia to consult with the government and with U.N. officials and to visit the Cambodia Documentation Center in Phnom Phen. We will do everything we can to remove this continuing threat to peace and security in that region and demonstrate some measure of justice to the long-suffering people of Cambodia.
We are also focusing renewed attention on Saddam Hussein and the senior members of his regime. His record is a long one--as Secretary Albright has often said, he is a "repeat offender." It is extremely important that the pattern of Saddam Hussein's conduct be well known by the international community. That pattern of conduct has been criminal in character. It involves the actions of Saddam Hussein's regime during the Anfal campaign of the late 1980's against the Iraqi Kurdish people. It includes what happened during the Iran-Iraq war. It includes the invasion and occupation of Kuwait, and the torture and killing of Kuwaiti civilians, and it involves actions that Saddam Hussein's regime has taken against the Marsh Arabs in southern Iraq following the Gulf War.
Our government is working with others to pull together the record of Saddam's regime in a way that can be useful to a prosecutor. For example, some years ago, Human Rights Watch and the Senate Foreign Relations Committee helped pull together 5.5 million pages of Iraqi documents captured in northern Iraq. The U.S. Government has now scanned these into computer-readable form-176 CD-ROM disks--so that it will be accessible to investigators and prosecutors looking into the way Saddam organized his activities in the north of his country.
Earlier this month, I was in Kuwait, where I met with officials of the Government of Kuwait and leading experts at universities and non-governmental organizations, to see what they had in their archives. I met with groups dedicated to keeping alive the memories of the civilians tortured to death by Saddam's forces. During the occupation, even having a camera in Kuwait could get you the death sentence, but courageous Kuwaitis took pictures to record the suffering these men and women endured. I was extremely impressed by what the Kuwaitis have done to gather evidence of the atrocities committed against their people. Block by block, they have documented Saddam's campaign against the Kuwaiti people.
I was also able to visit what must be regarded as an environmental crime scene--the oil fields of Kuwait. As Saddam Hussein's forces were forced to flee Kuwait, he ordered his forces to set fire to Kuwait's national treasure--its oil and gas fields. The scene at that time can barely be described--hundreds of oil and gas wells were spewing fire and black oil, with a black cloud literally turning day into night. Saddam turned Kuwait into what can only be described as hell on earth. Kuwait has done a heroic job in restoring itself from this crime. Even so, some seven years later, the damage remains. Pools of oil remain. At one gathering station, where the oil from the wells was supposed to be processed prior to being shipped to tankers, Saddam's forces started a fire so hot it melted half-inch-thick steel like candy.
Today, Kuwait is free, thanks to the action of U.S. forces, our Coalition partners, and the Kuwaitis themselves. As a result, we have access to the evidence of crimes that have been committed against the Kuwaiti people and their environment. Much of Iraq remains sealed off to international investigators, but there are substantial archives outside of Iraq that document crimes committed against the Iraqi people, as well. I wish those on the Security Council could see the evidence that I have seen. There have been many threats by Saddam Hussein's regime to international peace and security to which the international community has had to respond. The Clinton Administration recognizes that the record of Saddam Hussein's conduct under international law is deplorable. We are taking measures together with others to insure that this record is well known to the international community.
Everyone understands that efforts to bring the most heinous war criminals to justice cost money. Yet, 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, advance vital national security interests, and bring 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, this bill as well as comparable legislation this year have been held hostage to an issue that should be considered on its own merits. At some point common sense, and U.S. national interests, must prevail. 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.
International Criminal Court
Let me now turn to the future: a permanent international criminal court which would have jurisdiction over genocide, widespread or systematic crimes against humanity, and large-scale war crimes. The Clinton Administration has supported a strong and effective International Criminal Court ever since talks began at the United Nations in early 1995. President Clinton and Secretary of State Albright have repeatedly stated their support for the establishment of an appropriate permanent international criminal court. Last September, before the U.N. General Assembly, the President called for the establishment of the court by the end of this century. In Kigali a few weeks ago, he reconfirmed U.S. support for such a court. 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.
As head of the U.S. inter-agency delegation to the U.N. talks and the diplomatic conference this summer in Rome, I know well the strong commitment of our Administration to this endeavor. We have labored hard to address the myriad issues that confront any effort to build an institution of international criminal law, and we have done so in the face of those who wished to accelerate the talks at the expense of drafting a comprehensive and credible document. Our insistence on getting the job done right, within a reasonable period of time, has prevailed with the support of other governments equally concerned about the integrity of such a court. We hope that remaining differences among governments can indeed be resolved in Rome this summer, and that the heavily bracketed text emerging from the Preparatory Committee talks at the United Nations last month will be reduced to a statute for the court that can be embraced by the international community.
Non-governmental organizations have played a vital role in the U.N. talks. No one should underestimate the expertise they have brought to bear on this process or their efforts to influence governments. While we do not always agree with some of the NGO's, we respect their commitment to establishing a permanent court and their tireless efforts to advance the cause of international justice.
Our leadership in supporting the ad hoc tribunals for the former Yugoslavia and for Rwanda, as well as our current efforts to establish an ad hoc tribunal to prosecute senior Khmer Rouge leaders in Cambodia, demonstrates powerfully that the Clinton Administration seeks international justice for the architects of mass killings. We have learned through extraordinary hard work since 1993 that when diplomatic, economic, or military clout is needed to achieve the aims of international justice, the world looks to the United States for leadership and assistance. If one is truly seeking a strong and effective international criminal court, as we are, then it would be folly to ignore U.S. interests or seek any path that would exclude the United States from participation either in the negotiations or in the work of an established court.
The U.S. delegation has been and will continue to be guided by our paramount duty: to protect and advance U.S. interests. It is entirely consistent with U.S. interests to build a permanent international criminal court that can deter genocide, widespread or systematic crimes against humanity, and large-scale war crimes in the next century. Such a court can bring to justice those who would commit these heinous crimes against our soldiers, the armed forces of our friends and allies, and innocent civilians. A permanent court also can promote far better knowledge of and compliance with the laws of war and other principles of international humanitarian law. I have often said that today's combatants know as much about the laws of war as they do about quantum mechanics. That situation is a serious threat to the safety and security of U.S. armed forces, who are instructed in the laws of war. We cannot, and we will not, let war criminals set the agenda for the 21st century.
It also would be folly to exclude the U.N. Security Council from the work of the court. There is no enforcement arm envisaged for the court other than the Security Council. We have long argued that the court must be so constituted as to recognize the primary responsibility under the U.N. Charter of the Security Council to confront threats to international peace and security. There must be coordination and compatibility between the work of the Security Council and that of the permanent court. We have long supported the approach originally recommended by the International Law Commission of the United Nations, namely that no case pertaining to a matter about which the Council is acting under its Charter responsibilities, should proceed to the court unless the Council approves such submission.
There are other proposals which, while not embracing the U.S. approach, nonetheless recognize that the Security Council has a significant and appropriate role to play in the work of the court. After all, the crimes falling within the jurisdiction of the court typically will pertain to armed conflicts and other threats to international peace and security that can fall within the jurisdiction of the Security Council. It is essential that skeptics of the role of the Security Council not go so far as to abandon the one instrument that can put clout behind the court and give the prosecutor the kind of political authority he or she will need to effectively pursue war criminals.
We also have long argued, and advanced with specific proposals, that 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 lacking responsible, functioning legal systems nonetheless will be held accountable. Where national legal systems can assume their responsibilities, then the permanent court does not have to intervene.
This principle of deferral to national judicial systems, which the negotiators call "complementarity," is central to the U.S. position. There are those who fear that some States will take advantage of the principle to evade the responsibilities of justice, for example, by destroying evidence. We therefore have proposed a complementarity structure in which the court has the opportunity to determine whether it should take jurisdiction. But we must achieve appropriate deference to capable national judicial systems at the same time as we are pursuing justice at the international level. A primary aim of an international court must be to compel national judicial systems to do the job they are supposed to be doing: to investigate and prosecute genocide, crimes against humanity, and war crimes. Again, as an example, a government that intends to destroy evidence will do so whether it is violating its own commitment to the court to investigate or violating its obligation to cooperate with the court's prosecutor. We can address that particular issue without undermining fundamental tenets of complementarity.
A third folly clearly would be any system that dumps on the international court thousands of cases that should be prosecuted at the national level. This is a court that will concentrate, essentially, on mass killings and other atrocities on a grand scale. It will not be a human rights court and the prosecutor should not be an ombudsman open to any complaint, small or large, from any source. Otherwise, governments quickly would disassociate themselves from any responsibility to enforce the law at the national level and simply delegate, and thus bury, the international court with cases that should be subject to national scrutiny.
Allow me, in conclusion, to remind you of some other fundamental positions advanced by the U.S. Government in the U.N. talks:
1. We support a referral system whereby a State Party to the treaty or the Security Council can refer an overall matter--an armed conflict or an atrocity--to the court, following which the Prosecutor would investigate individuals responsible for the crimes within the context of the referred matter--just as the Yugoslav prosecutor does now. Neither the Security Council nor any State Party could file a complaint against an individual. We oppose creation of a self-initiating Prosecutor who could investigate and prosecute anyone, anywhere, anytime and under any circumstances without the benefit of a referral that establishes some parameters. That was never the original purpose of the court, namely to create a kind of human rights ombudsman empowered to press criminal charges.
2. While the United States has reserved its position on the issue of "state consent" before individual cases can be prosecuted before the ICC, we firmly believe that a government that has not ratified the ICC treaty must consent before there can be any prosecution of any of its nationals before the court. Otherwise, you would have the absurd situation whereby failure to ratify would subject your citizens to the jurisdiction of the court. Nonetheless, we have long proposed that the Security Council be able to override a State's denial to the court by referring the matter to the Court under the Council's enforcement authority.
3. Many governments and many NGO's seek a treaty that would require U.N. funding for the permanent court. We strongly oppose this. The permanent court will not be a U.N. court. It will not be part of the U.N. system. It will be a treaty-based court, that is, only those states that sign and ratify the treaty will be members. We believe the court should be financed by the States Parties to the treaty, with the exception that a Security Council referral to the Court logically would give rise to some form of U.N. financial contribution to the work pertaining to the referred matter.
4. The U.S. delegation has worked hard to advance protection for women's issues in the statute of the court. We have spearheaded efforts to accurately define war crimes pertaining to sexual violence, to ensure inclusion of qualified women in the staffing of the court (including the selection of judges), and to ensure that witness protection units address sexual violence issues.
5. Finally, the permanent court must not become a political forum in which to challenge controversial actions of responsible governments by targeting their military personnel for criminal investigation and prosecution. The U.S. Government, including the Defense Department, has very good reason to be concerned about this potential misuse of the court. America does not shrink from accountability, but we will resist politically motivated or frivolous complaints against our armed forces. Human rights groups advocating speedy military interventions to save human lives should be most sensitive to this reality. Otherwise, ironically, a permanent court that challenges controversial actions of responsible governments by targeting their military personnel for criminal investigations would undermine efforts to confront the worst assaults on humankind.
In Rome, a common ground must be found on the fundamental issues. It will not be easy, but neither is this challenge an impossible one. The United States approaches the Rome conference with cautious optimism and the hope that governments will recognize the common purpose that must bind us all--to bring to justice those responsible for genocide, crimes against humanity and war crimes, and, thereby, to help prevent them from occurring in the future.
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