David J. Scheffer
Ambassador-at-Large for War Crimes Issues
U.S. Department of State
Address before the Washington Institute for Near East Policy
Washington, DC, May 21, 1998
Accountability for War Crimes, Past and Future
It's a pleasure to be here at the Washington Institute this afternoon. As you know, we in the Administration thought we did well when Martin Indyk left here to join the Administration. Throughout the Washington Institute's 13-year history, including now under Rob Satloff's leadership, the Washington Institute has been and continues to be one of the most important sources of scholarship and commentary on Middle East affairs. Even when you take us to task, we find the Washington Institute's commentary to be incisive, thought-provoking, and highly relevant to what's going on in the Middle East today.
I want to address today two principal subjects. First, I want to describe for you the work the Clinton Administration is doing on the Iraqi war crimes issue. Second, I want to talk about the work we're doing on establishing a permanent international criminal court. Some might see these two points as different--one historic and retrospective, the other forward-looking and prospective. In fact, we see these two issues as inter-related parts of the Administration's overall efforts to build mechanisms of individual accountability for large-scale violations of the kind that were prosecuted at Nuremberg and Tokyo at the end of World War II, and that are being prosecuted today at the International Criminal Tribunal for the Former Yugoslavia in The Hague and at the International Criminal Tribunal for Rwanda, located in Arusha, Tanzania.
The term "war crimes" has become a shorthand for a body of law that arose more than five hundred years ago, though it is substantially shaped by World War II and the Holocaust. Before we can discuss the policy implications of war crimes tribunals and war crimes charges, it is important to have an understanding what these crimes truly are. The crimes prosecuted at Nuremberg, Tokyo, The Hague, and Arusha are the gravest criminal charges that could ever be brought against individuals. When the United Nations Security Council established the Yugoslavia war crimes tribunal in 1993, and followed it up in 1994 with the International Criminal Tribunal for Rwanda, it limited the jurisdiction of that tribunal to four categories of crimes.
First, these international criminal tribunals have jurisdiction over the crime of genocide. The word genocide evokes the Holocaust, as it always should. However, following the Holocaust, the crime of genocide was defined by international convention in 1948. The crime of genocide now has a specific legal description. The essence of the crime of genocide requires the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group, as such, through killing, torture, or other means. The element of specific intent is a key part of the crime of genocide, and one of the toughest to prove in court.
Second, these international criminal tribunals have jurisdiction over crimes against humanity. Crimes against humanity as defined for the Rwanda Tribunal include murder, enslavement, deportation, imprisonment, torture, rape, or persecution on political, racial or religious grounds, when committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds. Crimes against humanity was recognized at, and after, Nuremberg. At the end of "Schindler's List," Amon Goeth is shown being hanged for crimes against humanity.
Third, these tribunals can prosecute grave breaches of the Geneva Conventions of 1949. These conventions provide protection, for example, to prisoners of war and to civilians.
Fourth, these tribunals can prosecute violations of the laws and customs of war. The laws of war are governed by numerous international treaties and customary international law. One of them is the 1925 treaty banning the use of chemical weapons.
I mention these four categories of crimes to shed light on three points.
First, international war crimes tribunals are meant to try the most heinous crimes known to humankind. These are crimes that deserve the universal condemnation of all civilized States.
Second, because of the seriousness of these crimes, before any accusations are ever made, we must understand the facts of a particular case, and how those facts fit against the law.
Third, because of the seriousness of these crimes, and where the facts are sufficient to justify it, these cases deserve special treatment. At the core of these crimes, particularly genocide and crimes against humanity, is mass murder. Experience in the former Yugoslavia, the Great Lakes of Central Africa and elsewhere have demonstrated to us that these crimes constitute threats to international peace and security. The Administration does not believe that every war crimes charge merits an international tribunal. We are committed, however, to examining each situation on its merits, and to working to achieve the right result--the right result both in terms of international justice and in terms of international peace and security. This has led the Clinton Administration to lead efforts to establish international tribunals for the former Yugoslavia and Rwanda, it has led us to support efforts to look at ways to bring to justice senior members of the Khmer Rouge, and it has led us--as well as countries like Israel, Egypt and Jordan--to support the establishment of a permanent international criminal court. I will return to this subject later.
Let me say a few words about the status of the Yugoslav war crimes tribunal, the first international criminal tribunal since Nuremberg and Tokyo. Initially, there were those who said that we could not get the Security Council to agree to establish a war crimes tribunal for the former Yugoslavia. Ultimately, the vote was 15 to nothing. Then people said we would not be able to bring those indicted to justice. In the last 13 months, the number of indictees taken into custody in The Hague has essentially quadrupled, from 8 to 31. Three others are deceased, and today there are only 32 publicly indicted war criminals still at large. We recognize that our work is not finished. Some of the major indictees, including Radovan Karadzic, are still at large. Their day before the Yugoslav Tribunal will come. In the meantime, though, even skeptics have had to realize the importance of a Tribunal indictment in undermining Karadzic's power in the Bosnian Serb entity. Radovan Karadzic was first indicted on July 25, 1995. His indictment led to pressure being brought by the United States and other members of the international community. Persons indicted by the international tribunal would not be recognized as leaders by the international community. This led to Karadzic being excluded from the Dayton peace process in November 1995. I don't want to over-sell the importance of the Tribunal's indictment of Karadzic in the improvement of conditions on the ground in Bosnia since November 1995. A lot of the credit goes to the hard work by the President, by Secretary Albright, and by Special Representative Gelbard. Radovan Karadzic remains a malign influence in Bosnia to this day. However, the indictment of Radovan Karadzic by the Tribunal made it clear to the international community-in a way that diplomacy alone could not--that Radovan Karadzic was not a man with whom anyone should do business. With that pointed example, let me now turn to the case of Iraq.
When I testified before the Senate Foreign Relations Committee in July 1997, I said that my focus would be on the former Yugoslavia, the Great Lakes of Central Africa, Cambodia, and Iraq. We are making good progress with the war crimes tribunals for Yugoslavia and Rwanda. The United States is now leading the effort to bring to justice the leading surviving members of the Khmer Rouge who were responsible for killing 1.7 million Cambodians between 1975 and 1979.
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 he did to the Iranians 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 collect 5.5 million pages of Iraqi documents captured in northern Iraq. The U.S. Government has now scanned and indexed these 5.5 million pages into computer-readable form on 176 CD-ROM disks. Our goal now is to make this information accessible to investigators and prosecutors looking into the way Saddam organized his activities in the north of his country.
One incident stands out in the horror story of the abuses Saddam Hussein visited upon the Iraqi people. A little more than 10 years ago, Saddam's forces dropped poison gas on the Iraqi town of Halabja. Halabja's story was told on "60 Minutes" through the work of a courageous British doctor, Dr. Christine Gosden of the University of Liverpool. Dr. Gosden examined hundreds of Iraqis, many of whom were children or were not even born at the time of the 1988 attack. Her observations of birth defects, cancers, neurological disease, and more show the effects of Saddam's willingness to violate the 1925 chemical weapons convention through the use of poison gas. As some of you may remember, the Washington Post turned its entire Op-Ed page of March 11, 1998, over to Dr. Gosden so that she could tell the world the consequences of the actions of Saddam's forces on his the Iraqi people. As horrible as it was, Halabja was not the only Iraqi or Iranian town attacked by poison gas dropped by Iraqi forces. We don't yet know the full extent of the lasting damage suffered by the Iraqi or Iranian people as a result of Saddam Hussein's use of poison gas.
We know even more about Saddam Hussein's actions during the invasion and occupation of Kuwait in 1990-91. 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 the evidence they had accumulated 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 working in hospitals took pictures to record the suffering these men and women endured, in most cases before being tortured to death. This--I need hardly say it--is a war crime.
I was extremely impressed by what the Kuwaitis have done to gather evidence of the atrocities committed against them. Block by block, they have documented Saddam's campaign against the Kuwaiti people. This record must not be forgotten.
I was also able to visit what must be regarded as a war crime scene--the oil fields of Kuwait. As Saddam Hussein's forces were forced to flee Kuwait in 1991, he ordered his forces to destroy or release into the Gulf what turned out to be between 7 and 9 million barrels of oil. 590 oil well heads were damaged or destroyed: 508 were set on fire, and 82 were damaged so that oil and gas flowed freely from them. The scene at that time can barely be described--photographs and films shot at that time show a black cloud that literally turned day into night. 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. These were wanton acts of destruction of property not justified by military necessity and carried out unlawfully and wantonly. If ever there was a case of a gross violation of military necessity and wanton destruction, this was the case.
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 to insure that this record becomes better known to the world at large.
Let me now address a subject that is vital to the effort to bring war criminals to justice. 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, as have many other nations, including key nations in the Middle East like Israel, Egypt and Jordan. 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. 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.
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.
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.
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 body 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.
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. The International Criminal Court 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. The court must stay focused on the kind of cases it was meant to prosecute.
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.
Let me highlight six 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. This is the way the Yugoslav war crimes tribunal works now. 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. We do not believe that the jurisdiction of the court should extend to a crime of "aggression." This is not to deny the legacy of Nuremberg, but simply to recognize that no broadly acceptable definition has yet been embraced by customary international law for purposes of individual criminal culpability. Discussion on this issue in Rome will make little progress unless governments begin with the requirement of a prior determination by the U.N. Security Council that a state in fact has committed aggression and a definition that, for purposes of the statute of the court, is confined to the most obvious and non-controversial acts constituting a full-scale war of aggression.
3. 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 of consent using the Security Council's enforcement authority. No one expects a rogue state to sign the ICC treaty anytime soon. To get at future crimes committed by rogue states, the Security Council would, under the United States' proposals, be able to refer cases to the International Criminal Court using the Security Council's enforcement authority.
4. Some governments and 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.
5. 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.
6. 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. America does not shrink from accountability, but we will resist politically motivated or frivolous complaints against our armed forces.
In Rome, a common ground must be found on the fundamental issues still open in the international criminal court treaty. It will not be easy, but neither is this challenge an impossible one. The United States and its allies approach 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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