“PRESENT AT THE CREATION” OF THE MODERN WAR CRIMES TRIBUNALS

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EVENT TRANSCRIPT: “PRESENT AT THE CREATION” OF THE MODERN WAR CRIMES TRIBUNALS

DATE: 13:00-14:00 29 January 2018

VENUE: Committee Room 17, House of Commons

SPEAKER: Ambassador David Scheffer

EVENT CHAIR: The Rt Hon. Ann Clwyd MP

 

FULL NAME OF FIRST SPEAKER: The Rt Hon. Ann Clwyd MP

And, I remember you in particular because you encouraged us a lot, and we collected evidence. I headed an organisation called Indict, which collected evidence on Iraqi war crimes, for several years. We worked very closely with the Americans, on that subject, and went to the White House and State Department on several occasions. You were always a beacon, I must say, in that set-up. I don’t know, have you got Ambassador Scheffer’s CV? [Yes]. Okay I won’t go through his credentials, they are many. But of course he was the Ambassador-at-large for War Crimes, between 1997 and 2001; led the US delegation in negotiations in the international criminal court during the Clinton administration; and now he is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University Pritzker School of Law. So I am particularly pleased to welcome you here, David, you are amongst friends.

Ambassador David Scheffer:

Thank you. I think I will stand, if that’s all right? So that I can speak to the audience.

Thank you Rt. Hon Clwyd, I appreciate that very much. I do remember our meetings very well in the late 1990s because at the time the US Government was trying – futilely – to create a war crimes tribunal on Iraq for its occupation and crimes committed in Kuwait during the Gulf War. This was in the late 1990s and oh by the way, the UK was our strongest ally in the Security Council for that effort, but we ran into some trouble with some of the other members of the permanent Security Council, which is what often happens. But to this day I do feel that if we had been able to build that tribunal in the 1990s and at least investigate and have standing some indictment against Saddam Hussein and his leadership by the late 1990s, we might have created the foundation with which, not only the remaining years of the Clinton administration, but the George W. Bush administration could have worked with that instrument of justice, rather than just invade Iraq in 2003. But that is the fate of those efforts. But with your efforts Rt. Hon Clywd… [The Rt Hon. Ann Clwyd MP: ‘Call me Ann’]. Okay. I just remember so well how we both worked together to collect the evidence, including many trips that I made to Kuwait, working with the victim groups and collecting that evidence.

Well, I thought I would do is tell you a little bit about the last 25 years. But, I want to do so in the context of where we are now and what the challenges are ahead of us with the war crimes tribunals. I know the United Kingdom has a long history in this field, with the United States. You were there from the very beginning with us, not only at Nuremberg, obviously, but also in 1993 and the Security Council with the building of the international criminal tribunal for the former-Yugoslavia and then a year later the international criminal tribunal for Rwanda. Those were two Security Council tribunals that, frankly, the US and British governments worked very closely together to build. Then, in subsequent years, in the 1990s, the UK was my constant negotiating companion and sometimes adversary. In the ICC negotiations, Frank Berman, your legal adviser, was in the room every day with me. Then with the special court for Sierra Leone, we had an interesting year of negotiations, between our governments, to actually build the special court for Sierra Leone in the year 2000. Finally, with the extraordinary chambers in the courts of Cambodia, there we did not really work together that closely in the building of that particular tribunal, but when it came time for the United Nations to actually enter into a treaty with Cambodia, requiring the consent of the general assembly, not the Security Council, for that endeavour, the UK became even more involved in end-game of the building of that tribunal. I must say, that the UK has been one of the strongest financial and diplomatic supporters of the extraordinary chambers in the courts of Cambodia. Up to the present day, I have the Secretary-General special expert on UN assistance to the [inaudible] British trial since early 2012. So, I visit regularly the FCO, I visit regularly with your ambassador in Phnom Penh. That is an annual process of supporting that effort to bring to justice the rather elderly surviving leaders of the Pol Pot regime – those who are still alive, and there are some who are still alive. We are actually bringing them to justice before that tribunal and the UK has been right up-front with the US, Japan, France, the Nordic countries – Sweden, Finland, Norway – Germany, Canada, Australia, New Zealand, the Republic of Korea. That is our concentrated group of donor-nations for the Cambodia tribunal and I can’t tell you how supportive… I mean, I can actually tell you how supportive the British government has been, because I live with it every day. So I am extremely grateful for that support every year. It means decisions have to be made here in London on financial contributions on a voluntary basis to that court and I understand completely how difficult those situations are in budgetary talks, because I deal with so many governments where I really have to appeal every single year for what has been up to $30 million a year, for that court. Now that budget is coming down so we are not asking for so much anymore. But it is a court that has a remaining docket of three cases, that hopefully will be coming to a conclusion.

I just wanted to point out the obvious, that today we are still beset by a lot of atrocities: Myanmar, Syria, South Sudan, Afghanistan, Darfur, Burundi, Central African Republic, Democratic Republic of Congo. So when I look back at 25 years of tribunal building, I do so with the perspective that frankly I know there are sceptics out there who would say: ‘wait a minute, what have you just accomplished? It’s still happening. Genocide. Crimes against Humanity. War crimes. On massive scales.’ So what does this all mean after 25 years? So to begin that discussion, let me just turn to terminology for a moment, because it’s extremely important in the halls of government, the terminology we use. There is a lot of discussion when atrocities occur, as to whether it’s genocide, whether or not we can simply or conveniently call what we see happening war crimes, or whether we call it crimes against humanity. All of these are legal definitions, with a lot of law behind them and as lawyers – I am a lawyer professor – we spend our lives dissecting the law of the particular crimes. In the world of politics, it has to move faster and with more impact in order to resonate with the political world, as to what is exactly happening. My experience in the 1990s was that it is very difficult in decision making circles within a government – and I would be in the situation room in the White House for years –  and you would say, well, we know something is happening there. For example, Rwanda, what was happening there for the first few days in March 1994, could anyway say what exactly was happening? Were we actually using the word ‘genocide’ in those first few days? Well frankly, no. We knew killing was taking place, but of what character? If you are a very precise lawyer, you would stop and hesitate a little bit before saying ‘genocide’; because you have to have specific intent to destroy all or substantial part of a targeted group (national, racial, ethnic or religious). And frankly that has to be proved in a court of law, because you have to marry the specific intent of a person, in his mind, with the commission of the actual crime that you actually see happening on the ground. That’s not the issue. The actus reus as we call it is not an issue here, the issue is the mens rea. That takes years, to calculate in a court of lawyer. We’ve seen this for the last 25 years. The years of litigation to come to the final moment when the judges say ‘actually you never got the two things together so we’re going to call it “crimes against humanity”, not genocide’. This just happened in the Mladić trial judgement, it happened a year ago in the Karadžić trial judgement for the 1992 atrocities in Bosnia against the municipalities; count one was a charge of genocide. Both Mladić and Karadžić were acquitted on that count – they were convicted on everything else, including Srebrenica, its genocide etc – but not 1992, because the judges’ final analysis could not marry mens rea with actus reus on genocide, even though the community of Bosnian victims desperately believed it was genocide in 1992 and there’s a whole political dynamic behind that whole belief. But of course, in the courtroom it did not emerge as such.

So today, on Myanmar I know that there’s a new discussion taking place, including one that took place here in London very recently as to whether or not genocide is taking place in Myanmar. Now, we have all easily identified that as ethnic cleansing. The UN High Commissioner for Human Rights has so described it. Our Secretary of State in the US, Tillerson, has identified it as ethnic cleansing. So ethnic cleansing is a fairly obvious phenomenon that one can see and describe fairly quickly. It is not a legal term. The crime of persecution is actually what you prosecute in the courtroom. But nonetheless, we colloquially see ethnic cleansing fairly easily on the ground. The question now is that: is the tactic of genocide being used to cleanse Rohingya in their territory, in Rakhine state, into Bangladesh. That is a fair debate. But, I would simply caution my good friends in civil society, since I am civil society and my centre for international human rights. We need to be a little cautious here, about whether or not it is literally genocide – it’s easier to understand it as ethnic cleansing at this particular point in time.

So, this terminological debate, is one that I struggled with throughout my years as ambassador and when I finally left government at the end of the Clinton administration I entered the halls of academia and I started publishing journal articles and law reviews that tried to grapple with this terminological issue. I developed a term called ‘atrocity crime’ to simply describe genocide, war crimes and crimes against humanity as a totality that can be easily used by politicians, by journalists, by historians, to describe the obvious criminal activity that is occurring on the ground, without probing whether it is literally a war crime or crime against humanity or genocide, because that ultimately would be the judgement of a tribunal – if there is one – and if there isn’t one, it will be the judgement of legal scholars and historians alone who will try to make that judgement in the absence of a court of law. That’s going to be true for many of these atrocities. It’ll be historians and legal scholars who make judgement in their writings. But the reason I developed the term was my experience in Washington where it’s so important to try and emphasise to a political decision maker – on the executive side, or on the legislative side, in Washington at least – what do you need to know to react effectively to what is going on somewhere else in the world in terms of atrocities. What do you need to know? Well, I think your advisor needs to come into the room and simply say to you, ‘Madame, there are atrocity crimes occurring in Myanmar and they are erupting at a fierce rate.’ We need to develop a policy in response to those atrocity crimes, without bogging the discussion down – in my case my boss for eight years was Madeleine Albright – without the ambassador, or then Secretary of State Albright, turning to me and saying, ‘Oh, but I have to go into the next meeting with the President and say this is either genocide or crimes against humanity’. My response was not yet. But I think what you can say is that it’s “atrocity crimes” and he should take this seriously as “atrocity crimes”, and not bog down the decision-making with a definitional joust within the decision-making room, because we don’t have time for that. What we need to do is react as quickly as possible. This was true of Rwanda; all of these long discussions, is it genocide or not. Who cares at this point? The killing is massive, just respond to it. So, I would say as a piece of advice and what I always think is a challenge here, is to get the councils of government off the definitional rollercoaster and instead of doing that, point the discussion towards a more effective discussion on how to respond and not on what to call it or to think that you don’t have to respond until you’ve labelled it genocide or otherwise. What I am very happy about is that in the last, well, since I’ve put the term out in 2001 it has not become a standard term of art at the United Nations, among the NGOs, among academics and at the tribunals in the judges’ decisions; because even they find it convenient to say, in this part of the decision, ‘you know, we are going to talk about the whole cluster of crimes, so we are going to call it atrocity crimes for now and then we are going to get into another decision where we are going to say this is where the crimes against humanity are, the genocide is, etc.’

Now, let me just jump forward, to what I consider to be… Well, first let me say, each of these tribunals that I was, I’m afraid, deeply involved with – Yugoslav, Rwanda, Sierra Leone, Cambodia, the ICC – each of them have a unique political dynamic behind them, there’s no cookie cutter at all to building a war crimes tribunal. Yes, you will look back at the precedents. When we were drafting the Statute for the Yugoslav tribunal, you bet we looked at Nuremberg, you bet we looked at Tokyo, and in fact at the time I was reading Telford Talyor’s anatomy of the Nuremberg trials, which had just been published in early 1993, and I was very inspired by that book as we crafted the language for the Yugoslav tribunal. It also inspired us and my discussions with Madeleine to build that tribunal, because Telford Taylor’s book was reminding us of the importance of Nuremberg at exactly the moment we needed someone to hit us with it. So yes, there are some templates, but every single tribunal had its own dynamic and I’ll just tell you very very briefly, with the Yugoslav tribunal, we essentially had to invent Security Council authority to build a criminal court, which was later litigated, the Defence Council challenged us.

Then at the Rwanda tribunal in many cases, the Security Council has no authority to build these tribunals, the judges shot them down with some very interesting and historic rulings, as to what the Security Council really is to build these criminal tribunals, under Chapter 7. But that was the major political dynamic we had to deal with at the time. With the Rwanda tribunal, we had to deal with a very proud, victorious government led by the Tutsis after the genocide that wanted its sovereign equities addressed by the international negotiators in New York at the UN who were drafting the Statute for the international tribunal, for Rwanda, to present it to the Security Council for approval. Who was across the table from this (this took place in the New Zealand mission in New York)? It was the Tutsi government, the victors, and they were very hard-nosed about what they wanted in that tribunal and we had to respond with our equities, with the UN’s equities, for the integrity of the tribunal – and that was an interesting dynamic.

With the Special Court in Sierra Leone, we had two particularly challenging political issues. One, was how do you deal with child soldiers, who are some of the most egregious offenders, because they’re drugged up and they were going out and chopping off limbs. That was an interesting way we handled that, you know, ultimately – I will just say that the United States government opposed bringing children before the Special Court for Sierra Leone, ICRC opposed it, Unicef opposed it, so we felt that we had a coalition that was not going to lead to the prosecution of those under the age of 18. But the Sierra Leone government were adamant, they said “our people will not understand this tribunal, unless you bring these thugs, these teenage thugs, to justice, because it was these thugs that cut off the arms. So we finally relented, but we put so many caveats in the Statute, that when the prosecutor was seized with the issue after the court was established, the prosecutor – David Crane – decided he could not find personal jurisdiction for any particular teenage soldier; the jurisdiction rose to their leadership, not to the teenagers themselves. But, it was a political necessity for the people of Sierra Leone to know that the court at least had the capacity to bring the teenage individuals to justice. That was a compromise, it was very political at the time. Then there was the issue of the jurisdiction, whether it would reach Charles Taylor, in Liberia. We actually drafted the Statute for the Sierra Leone court, with the express purpose of actually pinpointing Charles Taylor, without pinpointing him, even though he was not Sierra Leone, he was Liberia, and Liberia was not signing this treaty, only Sierra Leone was signing this treaty with the UN. But in, shall we say, a novel exercise of universal jurisdiction the Special Court of Sierra Leone exercised jurisdiction over Charles Taylor for the purpose of ultimately investigating and indicting him – which it did. The only way we achieved the capture of him – he fled to Nigeria – the Liberian government, under Johnson Sirleaf I think at… no, she was not leading the government yet, I think it was her predecessor, they actually brought him back to Liberia after he was captured trying to run away near the border in Nigeria, and it was the Liberian government who surrendered him to the Special Court for Sierra Leone. So we had that sovereign decision by the Liberian government to actually vest him in that jurisdiction of the Special Court for Sierra Leone. That was especially important in future judicial decisions by the Special Court, regarding its jurisdiction.

I’ll finally say, with the Cambodia court – that was the longest court we had to negotiate. It was very hard, it was the Hun Sen government, which is still there as you might know. But I think it was worth it. It ended up a court that was not ideal, it’s a mixture of civil and common law, the French were very influential in the negotiations, working with the Cambodian governments. And so we sort of had to mix the two and this led to ultimately what was a protracted litigation scheme for the court. I think if we were to do it again you would not build the court the same way. But it is what it is and it is ultimately bringing justice, with respect to the Pol Pot regime. Some have died in the process, some of the suspects and defendants, but that is the reality, just as it was in Germany with the old Nazi leaders, some are soldiers, some are dying right between trial and appeal. It does happen. But, I think it’s been a worthwhile exercise.

Then finally I would say on the ICC. That was years of global negotiations, lots of different equities and I was very proud to actually sign the Rome Statute, for the United States on December 31st 2000, at the direction of President Clinton. We had not been able to express our support for the Statute, in Rome, in July 1998, because there were provisions on it that we still objected to. We didn’t object to the court itself, we rejected just certain aspects of it. But then we ironed these out over the next two years and we signed the Rome Statute. The George W. Bush deactivated my signature, but I’m happy to report that it’s still there, at the UN, on the right piece of paper, and all that is needed to reactivate it is another letter from the United States government to the UN simply stating, “We hereby reinstate our signature on the Rome Statute”. Unfortunately, that letter has never been sent.

I want to raise a few issues – I know I’ve been going on. First, I think you can safely say over the last 25 years, that the presumption of impunity for the atrocity crimes by political and military leaders is dead. Presumption, is dead. There has been so much that has happened in the last 25 years, in terms of building these courts, codifying these atrocity crimes, both internationally and in national criminal codes, that the presumption of impunity is no longer credible for anyone at a table to argue in a particular situation, “oh that individual should simply be given immunity from prosecution for masterminding atrocity crimes”. You can make the argument if you want to and I think you’ll get a lot of cynical responses to it, because what you’re basically doing is giving a pass to somebody who has committed these atrocity crimes, not just committing them, but masterminding them. Now that was not the case 25 years ago. In the early days of the Clinton administration – and I mean the really early days, January 20th 1993 – I remember sitting at meetings in the State Department on the crisis in Haiti, and we had to decide what to do with General Cédras, who was creating havoc in Haiti. The easiest thing we could come up with, was let’s get him on a place to a villa in Panama and he can live happily-ever-after. Just get him out of there. Ultimately we did that and had him on a plane to Panama. But that was the last time in any council of government that I was involved in, in the 1990s, where it was so easy to speak of impunity, because – well, a month later, in late February of 1993, the UN Security Council approved the creation of the Yugoslav War Crimes Tribunal – and from that point onwards it was just an evolving discussion in the councils of government of how do you hold these individuals responsible for their atrocity crimes? So we had our last kind of general burst with General Cédras, and that does not mean that leaders won’t avoid accountability, of course they will; al-Bashir, in Sudan, is indicted but has avoided it; Mugabe in Zimbabwe avoided any indictment for crimes against humanity in his own country for years, I mean up until the present day; Assad in Syria has avoided any indictment to date because there is no court with any jurisdiction over him, other than his own national courts. But I would say this, that Article 27 of the Rome Statute is the article that states that no representation of official capacity immunises you from the reaches of this court, essentially. As Zeid Al Hussein, the High Commissioner for Human Rights, said in 2007, “frankly when you look at it, Article 27 of the Rome Statute is the greatest advance in human civilisation since Magna Carta”, because it really puts every leader on deck for the responsibility of their actions. So that’s important. But I would then slide into another point in the Peace vs Justice argument, which is very aligned with this impunity argument. I think that over the last 25 years we have pretty much demonstrated you can do both at the same time – it’s a false choice to say, “oh will there be peace, or will there be justice?” I think, empirically, that if you do both in these conflict situations you ultimately will be beset by further atrocities, further conflicts etc. You cannot perpetuate a heritage of injustice where there has been the commission of these crimes. I often ask people, if you’re argument is that we just avoid justice and try to make peace settlements with these individuals and leave justice completely aside. Well, why? Because that’s the only way we think we can get them to the peace table – I would say, “show me the empirical evidence of that. I’d like to see the empirical evidence of your argument as opposed to, just this argument.” In other words, we haven’t indicted Assad, has this encouraged him to stop anything, at all, of what he is doing? I don’t see it. We haven’t indicted anyone in Myanmar… and they seem to just perpetuate their crimes. My experience, particularly in the Balkans, is that you indict these people and you start to shut them down, you really shut them down. Al-Bashir is an example in Sudan where we haven’t been able to do that with the ICC’s indictment. But one could argue empirically that the crimes in Darfur may have been diminished somewhat because of the indictment. That would be an interesting study to make, as opposed to simply saying somehow that the indictment has perpetuated the crimes. I would say that, no, the indictment against al-Bashir may have moderated him somewhat, in the commission of these crimes in Darfur and has certainly cut down his travel schedule internationally.

So finally I would say, what are the challenges ahead? Well, there are a lot of new tribunals to build. The question is how are we going to do it, or how are we going to get ICC jurisdiction over many atrocity situations. So let me give you a few examples. South Sudan; for those of you who know the South Sudan situation, know that frankly, a very innovative idea has been developed for South Sudan, whereby the African Union would actually develop a war crimes tribunal to deal with South Sudan. I was there a year ago, both in South Sudan and [inaudible] and tried to push that initiative forward along with other diplomats and I’m sorry to say that even to this day it has not truly taken off. That is the current plan for South Sudan, which is not a member of the ICC, namely to try and build a regional court under African Union auspices. Syria and Myanmar present a somewhat similar issue. Somewhat. Let me just put it out and then I’m going to stop… That is that I think we need to think rather innovatively about the actual jurisdiction of the International Criminal Court. What is happening in both of those countries are atrocity crimes that are unleashing hundreds of thousands, and indeed millions in the case of Syria, of refugees flowing out of the country and into the neighbouring countries, and in the case of Syria into Europe itself. Well, that’s a hell of an impact on other countries. I would argue that the crime scene itself, is not necessarily restricted to Syria; I would actually argue that the thrusting of those refugee waves into neighbouring countries, which is first of all a humanitarian issue that we have address in terms of taking care of those individuals, but it is also an impact on the security of those nations. It’s as though the crime scene is flowing into those other countries. So, the ICC, which has territorial jurisdiction over states’ parties, I think an argument could be made in this case that the territorial jurisdiction in fact flows across the border from Syria, into for example Jordan, that’s a state party, and then from Jordan into other states’ parties further north. Now, it’s a stretch of the argument, but nonetheless I think it’s become almost farcical that the ICC cannot seize jurisdiction over Syria, when the crime scenes in Syria are deeply impact other countries. That’s just obvious. And of course spawned Islamic State, or at least helped it to.

So, in Myanmar, same thing; ethnic cleansing has unleashed 900,000 refugees in 2017 alone, into Bangladesh. Bangladesh is a state party to the ICC and I would argue that that crime scene has bled over into Bangladesh big time. Now Bangladesh, could self-refer it, if it wanted to and take a chance, but of course politics intervenes and Bangladesh would not want to upset the generals in Myanmar by referring it to the ICC. But, under the state referral option in the Rome Statute any other party in the Rome Statute could refer the matter to the ICC and at least take the gamble. It could be shot down by the judges, yes, saying “no, no, no, it’s not Bangladesh, the crime scene is in Myanmar and Myanmar is not a state party, please go home”. I would argue that you could make this argument, that Bangladesh is the territorial jurisdiction where the crime scene has bled over onto Bangladesh territory. Any other member state of the ICC, including the United Kingdom, could refer the matter directly to the court for investigation and if it gets shot down by the judges, then so be it? What have you got to lose for Pete’s sake? Then of course, the United States could be far more effective in the Security Council, in working with Russia and China, in referring Myanmar, to refer North Korea, to the ICC. That’s the challenge of diplomacy and that’s where these days, the United States is declining in the potency of its diplomacy, under this administration, the Trump administration.

So, I’m going to leave it there

By the way, I just want to say, that 30 years ago I was a staffer – I’m sure there are staffers in the room here – I was a staffer in Congress, in the House Foreign Affairs Committee, I worked with Chairman Dante Fascell for many years on Capitol Hill. I really learned my chops as a staffer in the legislative branch of US government, so I’ve always had a soft spot for legislative staffers and I encourage you to ask questions because I’d be more than happy to answer.

The Rt Hon. Ann Clwyd MP:

Thank you, very much indeed David. You may be pleased to know I’ve actually sat in the courtroom in Cambodia, during one of the trials of the Khmer Rouge. In fact, we here put a lot of pressure on the UN at the time, as Michael Williams was there, to actually set it up. So it is fascinating to hear your account of events and just for your information, Indict – the organisation which I chaired, which gathered testimony on Iraqi war crimes – was set up with the help of the United States. In fact, it was Jesse Helms, believe it or not, who appropriated some of the money from the budget to enable us to actually set up and organising Indict, which eventually collected enough evidence – much of it was actually used in the trials in Baghdad, so we’ve had a very long association.

Ambassador David Scheffer:

I might clarify: of course, my working with the British government was in the 1990s and the Cambodia tribunal was not established until 2005, so there was a lot of activity that I was not part of in 2002, 3, 4, 5, in finally getting the court set up and as I say the British government has been our stalwart ally in that process

Question 1 – Dr Audrey Wells, Royal Holloway College

Could you tell me first of all, what is the value of charging someone with genocide when it costs a lot of time and money to prove it, with regards to intent. I liked your idea of atrocity crimes, what’s wrong with war crime? Can you not abolish this charge?

The second thing is, you’ve only mentioned ISIS once and you seem to be blaming Syria, but as you know probably would not have arisen had not the USA and Britain invaded Iraq, which resulted in the sacking of Saddam’s army and some of which ended up joining with ISIS and then went into Syria. It’s not Assad’s fault. So, is it possible to bring somebody from ISIS, say the leaders or someone, to some judgement? You’ve dealt with countries, not something like ISIS.

Ambassador David Scheffer:

Yes. Those are some tremendously good questions. First of all, the prosecutor typically will in his charge-, or her charge-sheet, actually include war crimes, crimes against humanity and genocide. I don’t know of any solo genocide charge frankly before the war crimes tribunals, there’s always a collection of charges, knowing that the genocide charge will probably be defeated in court and ultimately dismissed. So, for example, with Karadžić and Mladić they were fully convicted on 11 counts of crimes against humanity and war crimes, and that put them away. So, I think that prosecutors try to cover their backside and not only charge genocide, because of the risk involved. This was true at the Cambodia tribunal too, with Nuon Chea and Khieu Samphan, in the second stage of their trial they were charged with genocide over a four-year period against the Muslim population and the Vietnamese population in Cambodia, and the trial chamber convicted them of that, but they also convicted those two individuals of massive crimes against humanity and war crimes. So, it was a mixed bag, sometimes it works, sometimes it doesn’t.

On ISIS, it’s a fascinating issue, because that’s a non-state party, a non-state actor, creating enormous havoc. I’ve often spoken about how the Rome statue itself is not very adaptable to non-state actors on many counts. In other words, it’s more attuned to state actions. For example, if you charge crimes against humanity, you have to demonstrate that the widespread assault on a civilian population is pursuant to some kind of state policy or organised policy. Whether you can fit ISIS to that definition – I would argue that you can –  but again when you inferentially look at it you’re not thinking of ISIS you’re thinking of states. When you look at how they framed the way you’re supposed to prosecute matters before the international court. Fatou Bensouda, the prosecutor, she actually did look at ISIS and she said that what she was trying to do was find nationals of state parties to the Statute, who were of a leadership character in ISIS. She only goes for the leadership circle, not those below them. She found a lot of foot soldiers of ISIS who are from Britain, from France, Germany – you know, the people who have migrated down into ISIS – nationals over the years. But what she could not locate was any such national who had risen to an acceptable leadership role that would constitute what she considered to be necessary for the personal jurisdiction of her case. So she did try to get at it through nationality jurisdiction and perhaps she will still try to do so. I think after her efforts, she – from what I understand – sort of put the issue aside because she couldn’t find a really good target for the prosecution. So, that’s the reality of that situation for the International Criminal Court. I would just say though, that ISIS could easily be the target of the prosecutions for a newly created tribunal. I’ve argued and published articles that argue for the creation of a novel regional court in the Middle East, with specific states as parties to that tribunal, in union with the General Assembly as a treaty, to actually go after ISIS and Assad, and his regime, as well as the militia – the opposition in Syria – many of whom who are the subject of scrutiny and investigation for the crimes they have committed. The issue of course, would it also be a tribunal that tries to exercise control over Russia, NATO, the United States for their actions over Syria and that’s where you get into complicated political issues, obviously.

Question 2 – Duncan White, Henry Jackson Society:

Picking up on your point about non-state actors, what about non-state actors who have a specific covenant to destroy a particular group. I’m thinking in particular of Hezbollah, who have published online intent, specific intent towards Israel [inaudible], Iran, as well as a few others.

Ambassador David Scheffer:

Well, that would be very useful evidence in the courtroom with any particular Hezbollah leader who might rise to the jurisdiction of the ICC. But right now there would be no such jurisdiction because Israel and Lebanon and Egypt and other countries in that region, other than Jordan, are not state parties of the Rome Statute. And oh, Palestine, Palestine is now also a state party to the Rome Statute. But, Hezbollah and Palestine I don’t put together in my head very often, Hezbollah is outside of the Palestinian territory as far as I understand. I’m just trying to work out how you would get personal jurisdiction over Hezbollah and once you have personal jurisdiction over a member of Hezbollah, then that’s a very interesting piece of evidence you’d want to introduce to the courtroom with respect to how… if that individual has pledged allegiance to the mandate as you have described it. [inaudible]. So yes, that’s good evidence. I just don’t know how you’d do it yet with the ICC.

Question 3 – Israel Kuma

Did you ever experience the US’ previous support of the Khmer Rouge regime as a stumbling block? If so, how did you overcome this?

Ambassador David Scheffer:

That was a phenomenon, of basically, the middle-to-late 1980s, was that more significant show of – and I’ve looked into it a lot – support or acquiescence to the Khmer Rouge regime. Why? Because there was essentially a coalition of the Khmer Rouge plus two other factions in Cambodia, which vied for their seat at the Security Council, at the United Nations etc. So in the 1980s, yes, it was an anti-Vietnamese reality and I was in the 1990s, in the Clinton administration, and I never tried to offer any defence for it or any excuse for it. I just said that the reality of the 1980s – just as the bombing of Cambodia was a reality of the 1970s and many people would argue that bombing facilitated the rise of the Khmer Rouge in Cambodia. If historians so conclude, so be it. My objective at the time was to simply build the tribunal and bring the Pol Pot regime to justice, and whilst I was doing so, yes, I got loads of questions about: “well, wait a minute, shouldn’t the Americans be part of this jurisdiction of this tribunal for the bombings in the early 1970s, why aren’t we brining Air Force generals and Richard Nixon and others before this tribunal.” Or Henry Kissinger, was the obvious candidate, Henry Kissinger was constantly being thrust upon me as, “he should be on the dock”. And of course, I lived with certain political constraints. I did not have instructions from the US government to build a tribunal to prosecute the US government. So, I simply worked within the constraints that I had. I must say that the Hun Sen regime at times put this on the table, that they wanted the United States to be subject to the jurisdiction of this court, because of this bombing campaign, not because of the support for the Khmer Rouge – well, sometimes they would raise that, about the 1980s, as a sort of negotiating point to emphasise to me and to others, that “you owe us one”. That’s basically how they played it to us, you owe us this, because of the Khmer Rouge in the 1980s. So, concede to our point, today, at the table. So, I would not respond to that kind of pressure, but it’s fascinating and I leave it to others to judge what we came up with ultimately, it was a jurisdiction that did not include anything prior to April 1975, in its temporal jurisdiction. That was hotly negotiated and that’s where we ended up.

Question 4 – Nicole Pichet, Human Rights Group

I just wanted to mention that, I think that the focus on genocide and having that terminology applied is indicative of an operational vacuum. I mean, we get a lot of groups in here saying, “come on, can you help us get this designated as genocide”, the OECD for example, coming and there was a parliamentary pronouncement.

Ambassador David Scheffer:

In the US, as well.

Question 4 – Nicole Pichet, Human Rights Group

Well exactly. There were a number of countries. But the reason they want to do that is because the genocide convention – as I’m sure you know – that there are operational requirements once there is a genocide pronounced and unless you have that with other things, and you don’t, there is no other requirement that kicks in, unless there is a genocide that is established. You know, R2P – Responsibility to Protect – was kind of manufactured, in a way, to deal with that vacuum.

HJS



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