Crimes of War

A seminar for editors sponsored by The Crimes of War Project and The Freedom Forum

Special Guest Lecture: "War Crimes and Accountability: Main Areas of Concern" - Madeleine K. Albright, U.S. Secretary of State

Discussion led by Amb. David Scheffer

ROY GUTMAN: Due to the Secretary's tight schedule, I thought, and she has suggested that if there are questions that we put them to David Scheffer, who is the first ambassador. The first top person who deals with the issues of war crimes and tribunals in this administration. I think his average workday is probably--it starts at about 12 hours and then it goes onward. And his travel schedule is probably worse than anybody else's in this room. Maybe several of us combined.

But David is really the expert on the policies that the Secretary was just speaking about. I have to put a question to David when he comes up here just to start it off which is on Chechnya which the Secretary spoke about. One of the questions we all have is did the Russians essentially in your mind violate the rules of war? Are there war crimes? Should the Russians be held accountable for war crimes either in their own tribunal or in some international tribunal? What is the nature of what has been happening in Chechnya? So I'll give it to David Scheffer for about 10 or 15 minutes of questions and answers.

DAVID SCHEFFER: Thanks very, very much, and I appreciate the opportunity to answer some questions here. We've made it very clear, Roy, that there's no question that there are some fundamental issues with respect to Russia's compliance with international humanitarian law, including the laws of armed conflict, that need to be not only raised, but diligently and thoroughly investigated and answered in a definitive manner.

And we have made it very clear to Russian government that they need to do this now. They need to follow through on the Geneva Convention. The Geneva resolution recommendations of last week recommend that a very impartial, independent, national commission of investigation be created and that they get to work and do their job.

Obviously, the questions that will be raised before that commission are whether war crimes have been committed, by whom, and under what circumstances? And I would assume that such an investigation would look not only at the Russian military's conduct, but also at the conduct of the Chechen rebels which itself also raises fundamental questions and they have a responsibility under the laws of war as does the Russian government.

The distinction I think I would place between the two of them is that we hold the Russian government to a very high standard of compliance with these laws because of their sovereign capabilities, and the training that the military forces are supposed to be beneficiaries of. And if that training is not demonstrated in the field and many reports coming from Chechnya raise a lot of questions in that direction, then they have some serious work ahead of them.

But they don't have an indefinite period of time to achieve that investigation. Either it gets launched and it proceeds in a very diligent and serious way with credible efforts or obviously the question will continue to intensify among not only you, but also us as to whether or not an alternative methodology of investigation is required for Chechnya.

MICHAEL IGNATIEFF: Following Secretary Albright's concluding comments about the ICC, could you walk us through the procedural fix that she's talking about? Can you explain and justify why it's appropriate for America to be a good neighbor of the court, if I'm quoting her accurately, rather than an active, full- fledged, full-hearted supporter and participant in the court? How can the United States simply be a good neighbor of an international institution of that fundamental significance?

DAVID SCHEFFER: We agree. It's of absolute fundamental significance. We led the negotiations on this for many years. We want to be a full and active party to the treaty for the International Criminal Court. We want that day to arrive. But in the foreseeable future, we know that there are going to be a number of years in which the United States will be a non-party. That is a pragmatic calculation on our part and we have to take that very seriously.

What are the consequences of the United States' status as a non-party under this treaty, once it is created, with 60 ratifications and currently there are only seven ratifications that have come in? The consequences that the treaty in the final hours of the Rome conference taught the jurisdictional basis for the treaty in such a way that we have the bizarre situation whereby a Saddam Hussein can slaughter his own people within his own country and have no exposure whatsoever to this treaty unless the Security Council triggers that.

But a responsible nation trying to pursue international peace and security, undertaking humanitarian intervention, and which just happens not to be a party to the treaty can, in fact, be fully exposed to the jurisdiction of the treaty. We find that distinction bizarre in the treaty text and what we'd like to do is try to--without seeking any amendment to the treaty text itself. We're not asking parties that have signed it to reopen the treaty. We're not asking that. But we are looking at all of the provisions of the treaty and saying, what could we do to suggest a procedure that would be consistent with the substantive provisions of the treaty and at the same time not unjustifiably expose particularly our large numbers of military forces around the world to this court before their time? And what that means is until we as a sovereign nation have joined this court and have become a full party to this court.

So what we've tried to do with our procedural proposal is simply propose that no national of a non-party state who is acting in essentially an official capacity--namely the armed services of a non-party state. Not mercenaries, or terrorists, or crazies. We're not talking about them. But that no national of a non-party state acting officially can physically be surrendered to the courtroom of the ICC without the consent of that non-party state or unless the Security Council has otherwise determined that that national is exposed to the jurisdiction of the court.

I am often asked, well, that may make sense for responsible nations until they can become a party to this court and accept all of the responsibilities of the court, but what about Saddam Hussein or Milosevic? What if they send their soldiers outside of their borders in official actions? Our proposal does not grant those soldiers impunity. In fact, our proposal strengthens a key principle of this treaty, which is called complementary- namely, deferral to national jurisdictions.

The first stop under this treaty is domestic courts for prosecution. So what our proposal would do is if you had a Yugoslav soldier or an Iraqi soldier outside of their borders wreaking havoc and they were taken into custody, the question would arise, are they prosecuted before the Hague or are they prosecuted domestically in that jurisdiction? Or perhaps another jurisdiction willing to prosecute them for the crimes committed on their territory.

All we're saying is that a non-party state has the right to object to the surrender of that soldier to a court it is not party to yet unless the Security Council has overridden that; and they can. The Security Council can override it and any non-party national can be subjected to surrender if the Security Council so determines.

But under those circumstances, that individual is not sent back to his home jurisdiction, his sanctuary. There's nothing that forces that. That soldier is still outside of Iraq, he's still outside of Serbia, and he's still subject to domestic prosecution. And, frankly, a domestic court--at that stage the individual having been investigated and probably indicted by the ICC because that's the only thing that triggers a surrender request by the ICC--would ask the ICC for that thick file on that individual and prosecute the heck out of him in domestic court.

TOM GJELTEN: When Secretary Albright said in the case of alleged war criminals in Indonesia--and I'm assuming she'd be referring as well to people like Sankoh--that the international community can theoretically assert its prerogative to see that perpetrators are brought to justice. Outside of the ICC, can you explain what exactly is that prerogative? How can the international community outside the venue of ad hoc tribunals, outside the ICC, what is the prerogative that the international community has?

DAVID SCHEFFER: Well, her statement was not directed in exactly the direction I think you're pointing at, Tom. But I would say this, that we have a lot of options internationally. It's what we do everyday in the office of war crimes issues. We look at what is our option plate in any particular part of the world to achieve justice. Sometimes it's the ultimate creation of an ICC that would do the fix. Sometimes it's an ad hoc international criminal tribunal created by the Security Council that would achieve it. But can we get the votes? Sometimes very questionable.

Then we look at domestic jurisdictions that might have the capability to actually bring that individual to justice and whether or not we should facilitate that domestic process. For example, on Iraq, what we're looking at is the primary preference would be an international criminal tribunal ad hoc to prosecute Saddam Hussein. Remember, the permanent court will have no retrospective jurisdiction, so that's not the answer. The answer is how do you get Saddam Hussein for the last 20, 25 years?

If that doesn't succeed, then the other options that began to pop up are, are there national jurisdictions that would be in a position to exercise jurisdiction over Saddam Hussein and his colleagues for the actions they've taken either internally or outside of their borders, particularly in Kuwait and, of course, the scud missiles into Israel?

So we know there are options out there, and what we want to make sure of with respect to Saddam Hussein, for example, is that we have the body of evidence so tightly bound together that it unleashes those options very quickly, particularly if any of those individual travel.

A PARTICIPANT: I'm not a lawyer, but my main concern--and I wonder if you're worried about this--is that it sounds an awful lot like the United States is above the law by this good neighbor business, and I wonder if you're worried about the perception of that?

DAVID SCHEFFER: No. Well, of course I always worry about perceptions. But let me just say this. When it comes to treaty commitments, it's very serious business. We do not sign treaties blindly. If I can put it this way. I don't want to name countries, but think of the smallest country you can in the world. What are their obligations for international peace and security? How easily can they sign and ratify a treaty like the Rome treaty for the ICC versus how the issues that we have to consider when signing and ratifying such a treaty?

I must say that there are tremendous benefits--even for the long run--for this court of a good neighbor policy. If you look at what we are doing in the U.S. government to support justice initiatives around the world for both the tribunals and other matters, much of it's an unwritten story. It's an enormous amount of work. It's an enormous amount of effort every single day. Calls coming in. Can you help us do this? X, y, z. And we respond. We have those capabilities to respond.

So as a good neighbor to the court we can voluntarily do a heck of a lot for this court. And that good neighbor policy can mature over the years into the real possibility of signature and ratification. But I don't think this town is ready for a ratification process on this treaty. And I think we have to be very, very careful not to jump so quickly into this treaty that we actually jeopardize the very objectives that we want to achieve. This is going to take some time. We're going to have to achieve more comfort with
how this court operates. But in the meantime, we can do a tremendous amount for this permanent court as a good neighbor to it.

A PARTICIPANT: The Secretary gave high praise for the number of people who have been arrested in the Rwanda court and yet most reports are that it's been extremely slow. People have been released for failure to be prosecuted. The jails in Rwanda are brimming with people who have never been tried, just sitting there. What is the United States doing to improve the process of this court and also to improve the situation with the jail prisoners within Rwanda?

DAVID SCHEFFER: An excellent question, and I've got an answer for you. I go out there a lot to Arusha, to Kigali. We work the issue of the Rwanda tribunal a lot. And I can attest to you that the improvement in the workings of the Rwanda tribunal has been extremely impressive over the last 18 months.

And I can describe that to you in many different ways: the performance of the judges, the performance of the office of the prosecutor, the fact that the court does have a phenomenally successful apprehension rate, and the fact that many trials are getting under way and have been under way. And a lot of these trials are joint trials, so you bring a lot of defendants into one trial. So it's a little deceptive to say there's only a small number of trials under way, because there are a lot of defendants in each trial, because they want joint trials. This was a conspiracy- the 1994 genocide.

Now we have provided a significant amount of support to the Rwanda tribunal, a lot of it focusing on ensuring that there is improvement in court management. I think right now the biggest issue for the Rwanda tribunal is achieving a much higher degree of efficiency every single day and hour in just about everything that happens within the actual bureaucracy of the tribunal.

They've made a tremendous amount of improvement, as I say, in the last 18 months. They need to make some more. We are directing voluntary funds in that direction in very specific ways on court management improvements. We're also directing- as the Secretary reported- voluntary funds to achieve a greater dissemination of the information about the Rwanda tribunal, particularly to the Rwandan public.

And it is an underreported tribunal. I think if you have more journalists actually sitting in Arusha, covering the tribunal, I'll bet you the story would be better about this tribunal rather than perceptions about it that are sort of sometimes quite stale.

You asked about Rwanda itself. You've got still about 120-125,000 genocide suspects who are in Rwandan prisons. We have worked very, very closely with and have been supportive of the Rwandan government's effort to attack that problem in a fairly unique way now because they have gone through cycles of how to attack it. And we've been part of those cycles. This is a tough issue. How can you bring 125,000 suspects to trial in a society that has itself a rudimentary judicial system?

And have we tried a lot of different ways at that problem. But the latest is something called kachachya, which is indigenous to Rwanda. There is legislation under way in Rwanda now to institutionalize a process called kachachya whereby there would be- shall we say- a community-based disposition of large numbers of the cases. Not the worst cases, but a large number of the cases particularly those of the child soldiers who are now, frankly, getting beyond their teenage years, but whose commission of acts during the genocide still need to be addressed.

The Rwandan government has looked at options to actually take large numbers of the child soldiers and simply release them back into the community in a sort of regulated way in order to bring them back into society, and they found tremendous resistance from communities to that proposal. So they had to go back to the drawing boards and we're providing funding for those internal processes now. And USAID, for example, now is deeply involved in that.

But I don't want to overstate our achievements. This is a tough problem in Rwanda. There's often concern expressed as to why so many millions to the Rwanda tribunal when you have this large problem domestically in Rwanda? And we're very cognizant of that concern and we want to try to see the kachachya system work in a very reasonable way while protecting the due process rights of any particular defendant who ends up in front of a kachachya forum.

DAVID STOREY: David Storey. I'm from Reuters news agency. To what extent do you feel media organizations should be requested or obliged to submit information, which could be used in evidence in war crimes trials. And do you feel that pressure should be brought on media organizations or that they should be left to do so voluntarily?

MR. SCHEFFER: Well, it seems to me that your question probably goes to the issue of sources as opposed to information per se, because I think most media would be reporting the information they hear, but perhaps shielding the sources of the information.

Well, I'm going to be safe on your question. I think it's an excellent one. And the reason I'm trying to be a little safe on it is that this is an issue that is very essential to the negotiations for the international criminal court and it's still a live issue in those negotiations as we negotiate all the supplemental documents to the court.

And the issue that arises is do certain humanitarian organizations have to spill everything they learned to a prosecutor? Because they're out in the field. They're exposed. Their security is minimal, if not non-existent. How can they operate efficiently in the field if it's known that whatever they see or hear may be subpoenaed by the court for prosecution?

This is particularly concerned with the International Committee for the Red Cross. They've raised this very prominently, that they cannot be subjected to that kind of scrutiny by the court. And it's also an issue that's of essential concern to some significant UN agencies who are out in the field in many exposed ways trying to provide assistance- humanitarian assistance, and yet very concerned about what their exposure will be.

Now I must say in the negotiations for the ICC, I don't recall any effort to shield the press. It's not coming to me quickly here. So that issue is kind of an interesting one. You should just be aware of it that that's an issue out there for the permanent court. I know of no provision. What we've been working on is the ICRC and certain UN agencies, which are out there exposed. But I don't recall a journalist issue.

And, of course, there's the religious- the priest-penitent relationship that has to be protected to some extent. And some medical relationships. But I might stand corrected on it. I don't recall the journalist issue being part of it. So it is out there. And I know that the Yugoslav tribunal has sought many times a lot of information.

Do I have a view about it? Not precisely. I'd rather say: just let me think about that. That's a tough one. That's a real tough one.

David John Scheffer,Bio.
Ambassador-at-Large for War Crimes Issues

Roy Gutman, Bio.
International Security Reporter, Newsday, President, Crimes of War Project