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David J. Scheffer
Ambassador-at-Large for War Crimes Issues

"The Global Challenge of Establishing Accountability for
Crimes Against Humanity"
Remarks, Centre for Human Rights, University of Pretoria
Pretoria, South Africa, August 22, 2000

Blue Bar rule

I am very pleased and deeply honored to be with you today. I want to thank the University of Pretoria and its Human Rights Centre, particularly Dr. Chrisophe Haynes, for giving me the opportunity to speak to you about the challenge of constructing credible institutions of justice in the aftermath of genocide, war crimes, or crimes against humanity. In this cradle of reform, South Africa, the international crime of apartheid was defeated through the courageous will of the people. In South Africa, you stared down the forces of evil, and you won. As you well know, however, there are other titanic battles being waged elsewhere in the world against the horrific crimes of our own time. There are so many peoples across the globe who are battling their own demons of death and destruction and who need our help.

For nearly 8 years under the leadership of President Clinton, I have had the privilege of assisting with the creation of a number of mechanisms of international criminal accountability and of developing means to prevent future atrocities. Anyone involved in war crimes work knows how frustrating, labor-intensive, and ultimately rewarding it can be. The massacres that continue to this very day remind all of us of how we have only begun this fight against war criminals. But it is a global challenge that must be met with all of the energy we can muster if the rule of law, and countless civilians, are to survive in the 21st Century.

Throughout the world we are seeing fragile democracies struggling to make the critical transition to becoming stable nations that are welcomed into the international community. These struggles are often filled with strife and conflict that see the rule of law give way to the rule of force. Leaders use their might to exercise their will leaving the population defenseless and vulnerable. The results are violations of human rights, international norms, and laws. With these type of conflicts prevailing, it is important to develop the mechanisms of accountability that form the cornerstone of any credible democracy.

I am so pleased to be giving this speech in South Africa, a country whose people bear the scars of brutality but who also give testimony to the promise of reconciliation. This is a country whose leaders are recognized for their unsurpassed moral authority on these questions. South Africa is held up as a model for peaceful transitions to democracy around the world.

I heard Archbishop Tutu address a group of foreign officials in Washington, DC, several months ago, who were struggling to find their own path to justice and reconciliation in the midst of internal atrocities. He noted very poignantly how people used to say that South Africa would never know peace, and that its history was too raw with the wounds of violence. The message he carried to this audience from another country facing the thorny issues that accompany a transition from repressive rule to genuine democracy echoed Nelson Mandela's own courageous example: If South Africa can do it, with the myriad of problems it faced, so too can other countries. God Bless Desmond Tutu and Nelson Mandela and the people of South Africa. Your message has resonated with audiences all over the world. I would like to talk today about how accountability mechanisms are being constructed in several areas of the world: the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Indonesia and East Timor, Burundi, and Iraq. Each shares the common goal of seeking to reinforce the rule of law under unique characteristics that demand unique approaches to justice and reconciliation. I also want to discuss disturbing developments in the Ethiopian/Eritrean conflict, initiatives to prevent atrocities, and the permanent international criminal court.

First, however, I want to emphasize two points. Every society must find its own path with respect to amnesties that have facilitated the transition to peace, democracy, and the rule of law. Last week Chile moved further down its own path when the Chilean supreme court lifted General Pinochet's immunity in a move that Secretary of State Madeleine Albright described as "clearly historic for the rule of law and for the promotion and protection of human rights in Chile. It has reaffirmed," she said, "that it is possible for a country to have a stable democratic transition without sacrificing the principles of accountability and justice."

Each amnesty requires rigorous examination, always keeping in mind that the requirements of justice underpin the establishment of the rule of law. There is no single path. Realism, pragmatism, and even humility are essential in the implementation of any domestic amnesty. But no domestic amnesty can immunize a perpetrator of egregious international crimes from international justice.

The second issue I want to emphasize entails one particular development in international criminal law that reflects how determined we must now be never to reverse the tide of justice that has swept so many societies, including South Africa's, in the last decade: rape.

The international crime of mass rape is becoming a standard feature in international investigations and prosecutions of atrocities. Currently, several defendants are on trial before the International Criminal Tribunal for the former Yugoslavia for the systematic rape of Bosnian-Muslim women in Foca, Bosnia, and Herzegovina, during the Bosnian conflict of the early 1990's. The international prosecutor is arguing before a panel of international judges that the widespread and systematic rape and sexual enslavement of Muslim women constitutes a war crime and crime against humanity.

Out of 33 prosecution witnesses in this case, 16 have been rape victims. One female witness recently testified about the killing of her brother by one of the defendants. On cross-examination, the defense counsel asked her, "How do you know that my client is the person who killed your brother?" The witness answered, "Because he told me he killed my brother while he was raping me." Another female witness, "Witness 75," has testified that her mother was killed before her eyes, and that over 20 soldiers raped her on her first day of detention in a make-shift "rape center."

In this historic trial unfolding in The Hague, women are courageously testifying about the hundreds of rapes and other abuses committed in 1992 in Foca. They bear witness to the barbarism of the genocide and crimes against humanity committed during the Balkans war and why the need for justice and the search for the truth about what happened is so indispensable to peace and reconciliation in the former Yugoslavia. It was only 5 years ago that thousands of men were slaughtered in the hills of Srebrenica. One of the leading alleged perpetrators of those killings, General Krstic, is now on trial in The Hague. The United States has provided significant support for that trial.

These cases remind us that the war crimes agenda is more than the pursuit of abstract goals and interests. It is about real people who are real victims of real war criminals. The United States is determined that remaining indicted fugitives such as Radovan Karadzic, Ratko Mladic, and Slobodon Milosevic must be prosecuted in The Hague as soon as they either voluntarily surrender, which they would be smart to do, or can be apprehended.

Such crimes have not been confined to the former Yugoslavia. From Sierra Leone to East Timor, women and children have been brutalized in times of war and mass persecution. Here in South Africa, the Truth and Reconciliation Commission heard compelling testimony from women who had been raped and sexually assaulted in the context of the political battles that were being fought here.

In Rwanda rape was also used as an instrument of war and persecution during the genocide of 1994. Thousands of women were systematically raped because they belonged to a different ethnic group. Countless stories were told of women, after witnessing their entire family killed, falling victim to acts of sexual violence that included rape, mutilation, and forced nudity. The intent of the assailants was to destroy the women and thus make them irrelevant in the cleansed society. But in Rwanda, justice is having the last word. September 2 marks the second anniversary of a landmark ruling of the International Criminal Tribunal for Rwanda, based in Arusha, in the Akeyesu case that for the first time found an individual guilty, before an international tribunal, of the crime of genocide. Also for the first time the systematic rape of women was ruled to be an act of genocide and a crime against humanity. This precedent, made in Africa, set the judicial standard for the world to follow.

These cases underscore the important work being done by the International Criminal Tribunals for the former Yugoslavia and Rwanda. I will be visiting Rwanda again on this trip to Africa and will announce a modest but important voluntary contribution to the Rwanda War Crimes Tribunal that we are making available to strengthen the Tribunal's capability to track indicted fugitives and to better manage its complex case load.

I also will be exploring in Rwanda how best we can further our support for the Gacaca system of justice that the Government of Rwanda is pursuing to handle more than 120,000 suspects of genocide who continue to languish in Rwandan jails without trial 6 years following the genocide. Although the United States is the largest financial contributor to both the Yugoslav and Rwanda War Crimes Tribunals, we have not lost sight of the enormous domestic judicial challenge that has festered like an open wound in Rwandan society and that must be addressed with the support of the international community.

The existing ad hoc tribunals tell only a part of the story about how the international community is dealing with modern-day atrocities. The ethnic conflicts and sheer power grabs that have swamped so many societies in the latter part of the 20th century and into the new millennium pose enormous challenges for accountability, for reconciliation, and for prevention of further atrocities.

Sierra Leone

In Sierra Leone, the civilian population has been directly targeted by contemptuous rebels. Thousands of civilians have been murdered, raped, terrorized, or hideously mutilated. I have personally seen the children whose limbs have been chopped off by drug-crazed child soldiers under the command of individuals such as Foday Sankoh. The efforts of the international community to bring peace to Sierra Leone suffered serious setbacks when UN peacekeepers were detained and killed recently. Efforts to promote disarmament, demobilization and rehabilitation were obstructed.

The UN Security Council has condemned these actions in the strongest possible terms and acted to strengthen the presence of UN forces in Sierra Leone, which the United States as a Security Council member strongly supports. Secretary Albright and U.S. Ambassador to the UN Richard Holbrooke have been unwavering in their efforts to confront the toughest challenges in Sierra Leone.

One of those challenges is justice. We have now begun the long march toward accountability, which Sierra Leone desperately needs to eliminate a culture of impunity that undermines all other efforts to bring peace, stability, and reconciliation to that tortured land.

The United States was the prime mover behind UN Security Council Resolution 1315, which was unanimously adopted on August 14th. The resolution authorizes the Secretary General to enter into negotiations with the Government of Sierra Leone to establish an independent special court to bring the principal perpetrators of the most serious violations of international humanitarian law in Sierra Leone to justice. Within a few weeks, UN experts will recommend to the Security Council the steps required to physically establish the special court so that it can begin its work as quickly as possible.

This is the new challenge of judicial carpentry of our time: to build unique courts, sometimes international, sometimes domestic, and sometimes incorporating a hybrid formula, that respond to the unique requirements of the situations that cry out for international criminal accountability. There is no single construction plan. Anyone who believes that he or she knows precisely what is required in any particular society without experiencing and understanding the various interests at stake is delusional. There are general principles embodied in international law that guide any exercise in accountability for genocide, war crimes, or crimes against humanity. The challenge is to give effect to these principles taking into account the unique needs and complexities of any given situation.

We also must not forget that the Lomé Peace Accords called for the establishment of a Truth and Reconciliation Commission (TRC) in Sierra Leone -- an objective the Government of Sierra Leone earnestly seeks to undertake. We anticipate that the work of the TRC will complement the trials held before the independent special court for Sierra Leone. While the special court will likely investigate the key leaders who orchestrated the violence in that country, the vast majority of cases involving foot soldiers probably will fall under the jurisdiction of the TRC. There will be much that your own experience in South Africa can bring to this essential exercise in Sierra Leone, and representatives of your TRC have already visited Sierra Leone to offer their advice.

Cambodia

Some observers have compared the independent special court planned for Sierra Leone to the "Extraordinary Chambers" that will be established in Cambodia to investigate and prosecute the Khmer Rouge leaders responsible for the atrocities of the Pol Pot era of 1975-1979. It is true that the two mechanisms share a key common feature: they are creative attempts by the international community to design unique accountability mechanisms with both international and domestic participation. But they should not be mistaken as identical enterprises.

In Cambodia, the Government and the United Nations have long been involved in negotiations over a draft law that is currently under consideration in the Cambodian National Assembly. The Clinton Administration is proud to have contributed to the process, which also included the courageous and successful efforts of Senator John Kerry of Massachusetts to help break impasses in the negotiations. The new law would establish "Extraordinary Chambers" within the Cambodian judicial system that would provide a venue to bring senior Khmer Rouge leaders to justice. The law will provide for both Cambodian and international participation: judges, prosecutors, and staff. It is an unprecedented exercise that will require a great deal of hard work to pull off, once there is an agreement. But after two decades of drift in the fields of accountability, the Cambodian people finally will be able to directly confront the principal perpetrators of the mass killing of an estimated 1.7 million Cambodian civilians.

Both Sierra Leone and Cambodia will require voluntary funding to build and sustain these new courts. We are exploring how the United States Government can assist once the courts are formally established. Other governments also should be exploring their own funding capabilities. But I would hope that private sector contributions also could begin to flow into these projects. We have not seen private donations to international criminal courts to the extent that we had hoped. Two exceptions have been IBM and the WestLaw Group which have generously assisted the UN Tribunals. But much more will be required and expected in the years ahead. Sierra Leone and Cambodia would be good places to start a revolution of private financing for international justice that will have the long-term benefit of helping build societies that can attract foreign investment.

Indonesia/East Timor

In another part of the world, Indonesia, there are also elements of domestic and international justice at work. Late last year, the UN Human Rights Commission convened a special session on the situation in East Timor. In addition to condemning the violence that ravaged East Timor following the referendum there 1 year ago, the UN called for an international commission of inquiry. It also called on the Government of Indonesia to investigate and prosecute those responsible for the atrocities associated with last year's referendum in East Timor.

The fact that the international community has given Indonesia the opportunity to fulfill these obligations has been a major test of Indonesia's own ability to investigate and prosecute its own. The government-appointed commission of inquiry into violence in East Timor produced a well-documented report, which has become the basis for criminal investigations. The Indonesian Attorney General appointed a 64-member team to pursue criminal investigations with a view to issuing indictments. The team wasted no time in bringing in several top generals for questioning.

We are concerned about the implications of the recent adoption by the Indonesian People's Consultative Assembly of a constitutional amendment that includes the right of protection from prosecution for any act which was not a crime when committed. We recognize that the universal concept of "ex post facto" is an important due process right. But neither that principle nor this amendment should prevent the anticipated Human Rights Court in Indonesia from trying violations of international humanitarian law embodied in treaties and customary law to which Indonesia is unquestionably bound. We hope that Indonesian prosecutors will be able to bring military commanders to account for the East Timor atrocities and for egregious crimes against civilians committed elsewhere in Indonesia, as the Indonesian authorities have indicated they are prepared to do. We all must carefully scrutinize the next steps in Indonesia to achieve justice for the victims of unwarranted military and militia violence.

Hardliners, of course, will continue to do all they can to obstruct a credible accountability process. In the event they are successful and domestic accountability is no longer a viable option, the international community must be prepared to exert its prerogative to see that the principal perpetrators are brought to justice. We recognize the importance of what the UN High Commissioner for Human Rights, Mary Robinson, has said on this subject recently. If the Indonesians do not address this challenge, then the pressure will grow to create an international tribunal to do the job.

That being said, the UN Transitional Administration in East Timor (UNTAET) is doing its part in documenting what transpired in the East Timor violence. We hope that the legal authorities in East Timor and Jakarta will continue to cooperate in this venture. UNTAET and the Government of Indonesia have already signed a memorandum of understanding that provides a framework for the sharing of information and might even allow for joint investigations. There is certainly enough work to go around to avoid unnecessary duplication of effort and competition for suspects and resources. And the courts established by UNTAET may, in light of the recent developments in Jakarta, have to become the most immediate and primary vehicle for justice for East Timor. We will spare no effort in strengthening the rule of law in East Timor and in Indonesia, where criminal violence against large numbers of civilians in the Moluccas, in Aceh, and in Irian Jaya must not go unanswered.

Burundi

The atrocities experienced by the people of Burundi remain one of the toughest challenges in the carpenter's shop for judicial accountability. Nelson Mandela has brilliantly led negotiations for a peace agreement in Burundi. The challenge of peace will also be a challenge for justice in Arusha on August 28th. With the help of Nelson Mandela, the parties to the conflict in Burundi and the international community will need to find a credible means to address the egregious crimes that have brought such death and mayhem to the civilians of Burundi. In Burundi as well, the crime of rape has been a common feature of military operations. The women of Burundi have played a key role in seeking peace and reconciliation, and the victims of rape deserve justice.

Iraq

With respect to Iraq, the United States Government is determined to see Saddam Hussein and his inner circle stripped of their power and brought to justice. Saddam's regime has murdered hundreds of thousands of its own citizens, frequently with poison gas. It continues to commit numerous atrocities against the Kurds, the Turkomen of northern Iraq and the Shia of the south. Political opponents of any kind are subject to imprisonment, torture, and summary execution. The regime perpetrated war crimes and crimes against humanity against the people of Iran and Kuwait and used massive crimes against the environment as a political weapon. During the Gulf War, Iraq fired 42 Scud missiles -- indiscriminate terror weapons -- at population centers in Israel. This was an egregious violation of the laws of war, given the Israel was a non-belligerent.

The United States supports the creation of an international criminal tribunal for Iraq, as was done for Rwanda and the former Yugoslavia. Additionally, we are assisting various non-governmental organizations to gather evidence for use in prosecution in foreign domestic courts if the opportunity arises. Every day Saddam's list of crimes grows, as does the need for accountability. This is a man and a regime who have brutally and systematically committed war crimes and crimes against humanity for years, are committing them now, and will continue committing them until the international community finally says: "enough."

Ethiopia and Eritrea

We are witnessing in the Ethiopian/Eritrean conflict a sharp rise in actions that appear to be war crimes. These include allegations of Eritrea's mass expulsion through minefields of Ethiopian citizens and deplorable treatment of prisoners of war in violation of the Geneva Conventions of 1949 and Protocol II, which Eritrea has ratified. Alleged Ethiopian military actions against Eritrean nationals in Ethiopian-occupied Eritrea have included unwarranted bombings of civilian settlements, mass rape, disappearances, and summary executions. The United States has been pressing both Ethiopia and Eritrea to reverse this egregious conduct. Today U.S. Ambassador Richard Bogosian is intensifying our efforts in the region and we call upon other governments to put maximum pressure on Asmara and Addis Ababa to comply strictly with international humanitarian law. Ethiopia and Eritrea stand on the brink of yet another international investigation of conduct that is simply unacceptable in the 21st Century. They have the power either to demonstrate their own resolve to comply with international law or invite others to judge their leaders for individual responsibility for criminal conduct.

Atrocities Prevention

An equal, if not more difficult challenge, is how to prevent atrocities from occurring. This is a vexing issue that has occupied the attention of the academic and non-governmental communities and produced extremely helpful studies and projects that we all are benefiting from. We have also undertaken within the Clinton Administration an ambitious effort to prevent atrocities. Let no one assume that we pretend to be successful, as atrocities are continuing at an alarming rate. The International Rescue Committee's estimate of 1.7 million deaths in recent years attributed to the conflict in the Democratic Republic of the Congo is a sobering, if not frightful, reminder of how far we yet have to go. We owe it to the innocent civilians to do our best to prevent further bloodshed in that tortured land.

I head up the Atrocities Prevention Interagency Working Group in the U.S. Government. It was created by President Clinton almost 2 years ago. We recognize in the work of our group that there is indeed a lot of information to draw upon -- from NGO's, the media, UN relief groups, and our own diplomatic sources of information. We have contracted with a private group to collect and organize every morning the best information from open sources, and we have benefited enormously from that group's reporting to us.

Our objective is to get to policy-makers as quickly as possible not only information about imminent atrocities, but also ideas of how to prevent them from occurring. You would be surprised how difficult that exercise is. But we are trying and I intend for the work of our group to expand in coming years and to be further influenced by the companion work of similar groups in other governments and in the private sector.

Last October we convened at the Holocaust Museum in Washington, DC, a Conference for Coordinating Atrocity Prevention and Response where a number of governments, including South Africa, and non-governmental organizations met to explore feasible measures to enhance international cooperation and coordinated efforts in the struggle against mass acts of murder, terrorism, wanton violence, torture, or rape as a weapon of war against civilian populations. The deliberate targeting of civilians, especially children, was given special attention. We agreed upon a Statement of Principles for International Cooperation to Prevent, Ameliorate, or Prosecute Perpetrators of Atrocities that we are finally in a position to make more broadly known. It is our common objective to create an informal atrocities prevention and response network among governments, international organizations, and non-governmental organizations. The network will identify emerging trends and potential responses and help coordinate policy options that will be raised to appropriate governmental and institutional levels.

International Criminal Court (ICC)

Let me conclude with some views about the permanent international criminal court. The United States long led the effort to create an appropriate and effective permanent international criminal court and we deeply engaged in the talks leading up to the Rome Treaty of July 1998. I know. I have been there from the earliest days of the Clinton Administration in 1993 and have led for several years the U.S. delegation to the ICC talks. Our commitment to international justice has been strong and our commitment to the negotiations for an international criminal court second to no other government.

Following the Rome Treaty the United States led the UN negotiations for the Elements of Crimes of the International Criminal Court. We drafted the primary document and for nearly 2 years we were in the trenches with South Africa and other governments to finish this work-engine document of the Court. On June 30th of this year we were proud to join consensus with other governments in adopting the Elements of Crimes. We also participated actively in the Rules of Procedure and Evidence, an essential document for the effective working of the Court. On June 30th we joined consensus on the completion of that document.

We have a remaining fundamental difficulty with the Rome Treaty that we sincerely wish to resolve so that, at a minimum, the United States can be a good neighbor to the International Criminal Court regardless of whether we achieve party status or not in the near future.

That fundamental difficulty is the exposure of our armed forces, which are deployed by the hundreds of thousands around the world at the request of governments and to ensure international peace and security, to prosecution before the Court even before the United States becomes a party to the Rome Treaty. The possibility that a U.S. soldier fighting to halt genocide could be accused by the other side of war crimes and brought before the Court, before we have even joined the Court, is untenable to the American people. It is untenable because we are at a vital crossroads in world history right now, when the resolve of the international community to confront evil is being tested every day. In any military action, we have to accept the possibility that things will not go as planned; missiles might go off target, and human error could result in unintended destruction. But fear of being accused of war crimes for honest mistakes should not prevent us from acting. We are sometimes criticized for not confronting that evil immediately, for letting it fester too long until too many innocent civilians are slaughtered by fearless, thuggish leaders of tyranny. We are determined to confront the perpetrators of human misery, but we must do so recognizing the risks and the necessary balance that must be struck between our pursuit of international justice and our common quest to achieve international peace and security and respond to humanitarian calamities.

The United States is not shirking from prosecuting its own for international crimes. We know our responsibilities and we are committed to fulfilling them. We are currently negotiating a proposal that would not amend the Rome Treaty, but would permit a procedure that still requires a nation that is not yet a party to the treaty to act responsibly and bring its own to justice. If a nation, whether a party or not to the Rome Treaty, acts irresponsibly and wages massive crimes against its own people or those of another nation, then we have no interest in permitting such a nation to enjoy any special privilege; let that nation's war criminals stand trial before the ICC. We want to achieve the objectives of the Rome Treaty, and indeed to do so as a non-party until such time as we can join the treaty.

But reason and common sense must prevail if we are to strike this balance. Those who argue that the Clinton Administration is seeking to oppose the Rome Treaty and destroy its objectives are deeply mistaken. There is so much to gain by having the United States on board as a partner to the International Criminal Court. It would be tragic if the opportunity is lost to achieve that partnership. We are so close; it would be a colossal mistake for purist notions about the Rome Treaty to kill off the opportunity for the United States to become a true champion of the Court and to provide it with the kind of assistance and cooperation that it so clearly will need to be an effective engine for international justice.

Thank you very much. I would be happy to take questions.

[end of document]

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