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Event Summaries
February 1, 2018

Event Summary: “Present at the Creation” of the Modern War Crimes Tribunals

by
Henry Jackson Society

Speaking at the “Present at the Creation” of the Modern War Crimes Tribunals at the parliament earlier today. Former U.S. Ambassador-at-Large for ‘War Crimes Issues’ – David Scheffer discussed his personal and professional experienced in negotiating the creation of a permanent International Criminal Court and war crimes tribunals for the conflicts in Yugoslavia, Rwanda, Sierra Leone, and Cambodia. He also talked about the efforts of the United States to set up a war tribunal for Iraq occupation and crimes committed in Kuwait during the gulf war. Looking into the future, ambassador Scheffer envisioned for international justice in the light of new wave of atrocities of ISIS, crimes committed in Syria and the Rohingya ethnic cleansing in Myanmar.

Ambassador Scheffer asserted that, ‘if the UN Security Council were to have agreed and built a tribunal in the 1990s to investigate and indict Sadam Hussein’s administration in the 1990s. That could have formed a foundation with which the Clinton and later George W. Bush administration could have used as an instrument of justice rather than actually invading Iraq in 2003’.

With an intensive knowledge of law and experience gained whilst negotiation on the International Criminal Court. Ambassador Scheffer reflects back on the last 25 years in the context of ‘Where we are now and what the challenges ahead are in terms of war crime tribunals?’, noting the long history of the US and UK in relation to war crimes tribunal. Touching on the creation of the international criminal tribunal for the former Yugoslavia, and the late 1990s creation of the ICC. He acknowledged the role the United Kingdom Government played at the UN Security Council calling the British Government its strongest ally at the Security Council. Touching on the Cambodian Khmer Rouge Tribunal, the ambassador again emphasised how extremely the British Government were monetary supportive.

Pointing Out the obvious – atrocities in Myanmar, Syria, South Sudan, Afghanistan, Central African Republic, Dafur, Burundi, Republic of Congo. The ambassador believes that the work put in the past 25 years to create tribunals was necessary and it is still effective today despite massive wave of atrocities in the above mentioned countries.

Terminology and Law

The ambassador touched on the politics of definitions of atrocities and terminologies used to describe and categorise them and how he struggled to define them during his time as an Ambassador. Explaining further he pointed out the extreme importance of terminology in the halls of Government. Citing the rift of defining atrocities as ‘Genocide’ or ‘crimes against humanity’ or ‘War crimes’ stating the legal precedence of the three. Furthermore, citing personal and professional experience when negotiating the ICC in the 1990s – Ambassador Scheffer explained how extremely difficult it can be for decision makers in Government to define most atrocities at its early stages. Citing Rwanda as the perfect example, the ambassador stated that even though the US Government had knowledge of ongoing killings in March 1994, no one could say exactly what was happening. The term ‘genocide’ could not have been associated to the atrocities as the US Government had no knowledge of the nature of killings is taking place. Quoting the legal definition of ‘genocide’, the law professor stated categorically that it is only the court of law that can proof if atrocities committed are genocide or not, citing the acquittal of Herzegovina of genocide but convicted of crimes against humanity in the 1992 atrocities in Bosnia against the Municipalities. Citing the Royingya crisis as another example, Ambassador Scheffer stated that the discourse defining the atrocities continue to has gain much attention with the UN High Commissioner of Human Rights and the Secretary of State of the US, Rex W. Tillerson calling it as ‘Ethnic Cleansing’. In his capacity as a professor of law he explained further that the term ‘ethnic cleansing, is not a legal term, and that it has been observed that the tactics of genocide is being used to cleanse the Royingya in Rakhine state to Bangladesh.

Interestingly, the ambassador coined a term ‘atrocity crimes’ in his 2007 article titled ‘Atrocity Crimes Framing the Responsibility to Protect’ to simply describe genocide, crimes against humanity and war crimes as a totality that could be easily used by politicians, journalist and historians to describe criminal activity occurring on the ground without probing whether its genocide, war crimes or crimes against humanity as it is the tribunal that is mandated by law to judge and give a terminology to a specific atrocity. He advised decision makers in Government not to be too bulked down with debating the terminology to label atrocities when they arise in foreign countries but rather act quickly to develop a policy in response to those atrocities. The issue of challenges facing the ICC was lightly touched by the ambassador stating – over the past 25 years the presumption impunity for atrocity crimes by political and military leaders is dead. Meaning there is no more free pass for leaders who commit atrocity crimes.