david scheffer - war crimes and the clinton administration

8/18/2019 David Scheffer - War Crimes and the Clinton Administration

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War Crimes

and the Clinton

dministration

1 of the Treaty between the United States of America

and the C herokee Nation, dated July 22, 1779, reads: That all

offenses or acts of hostility by one or e ither of the con tracting par-

ties against the other be mutually forgiven and buried in the

dep ths of oblivion, neverm ore to be had in rem em brance. Th at

is how as a country we started, in terms of our relations with the

most obvious acts of atrocities confronting us at that time, which

involved N ative Am ericans, and that is how we chose to dea l v«th

them in 1779: obli\'ion. I believe we have come a very long way

since then, in part by recognizing all of the mistakes we have

made.

One of the origins of international law can be traced to a Span-

ish scholar by the nam e of Franciscus d e Victoria, who in the six-

teenth century decided that he would examine the treatment of

Native Am erican by the Spanish co nqu istadors. His treatise on the

subject was a foundation for the actual drafting of treatises on

internation al law from that po int forward. So we need to remem -

ber that America was the starting point for this process in inter-

national law, and that our own history of atrocities has been a

founda tion for so much of what has occu rred in internation al law.

It is no t ju st the Native Americans, of course, who have been

the victims of ethnic cleansing. There have been other contro-

versial episodes in American history: slavery; tbe actions of Gen-

erals Sheridan and Sherman during the Civil War (including



1110 SOC IAL RESEARCH

ing World W'^r II; the atomic bombs dropped on Hiroshima and

Nagasaki; many of the military actions taken during the Vietnam

War; and the bombings of Cambodia in the early 1970s. It is

important that we recognize that the state of the law at each of

these periods in our histor\'

was

in developm ent and was not as it

is today. That is an extremely important qualifier, in terms of how

we look back at the responsibility' of individuals for crimes com-

mitted in this countr)'s past. Their presumed illegality today may

not have been so apparent to those involved at tbe time tbese

actions were being taken—particularly, for example, actions

taken during the Ci\il War.

y

immediate concern in this essay is with the past decade and

the future. During the 1990s there was a phenomenal grovrth in

international criminal tribunals and in the law itself Elsewhere in

this volume, Kenneth Roth, Patricia Wald, and Aryeh Neier dis-

cuss the tribunals, so here I will attempt to address some addi-

tional issues.

A troubling and persistent allegation is that the ad hoc inter-

national war crimes tribunals were acts of tokenism, that some-

how because of America's failure to react to the actual

commission of atrocities, the tribunals stand as our token

response to all such atrocities. It has been argued that the United

States and its allies pushed aside the military option and simply

pursued the legal option. But while this was occurring, in 1993

and 1994, with respect to the Yugoslav and Rwandan tribunals,

and in th e last few years with respect to Sierra Leone, th e consid-

eration of

a

legal instrum ent of accountability actually took place

on a fairly separate track of

discussion.

I did not find officials, par-



WAR CRIMES AND CLIN TON 111 1

legal option we can pursue here . Rather, the military op tion was

fiercely debated, and usually discarded, on its own merits. One

can criticize the United States government for not taking military

action, and I jo in in much of that bu t it is a flawed argument that

the ad hoc tribunals were somehow tainted or und erm ined by the

absence of parallel m ilitar)' action . Frankly, this risks becom ing a

self-fulfilling observation by commentators an d scholars, which I

hope TOU be shown by historians not to be tru e.

The real issue is our willingness to use military force quickly

and forcefully enough to stop the killing. Whether we do that or

not, the issue of accountability rem ains. But on the issue of using

force we made m any mistakes during the C linton adm inistration.

Why we did n ot make th e decision quickly enough to use military

force in so many situations—until, as Samantha Power (2002)

writes, Kosovo finally kicked us into high gear on that issue—is a

fascinating story that I think historians are going to be writing for

a long time, especially s the archives open up 20 to 25 years from

now, demonstrating how decisions were made, moment by

moment, in the administration. I would simply say that from my

vantage point, flrst working for Ambassador Madeleine Albright,

and being on the Deputies Committee of the National Security

Council during these horrific events in Rwanda and Srebrenica

and then being ambassador at large for war crimes issues during

the second term of the Clinton administration, there were influ-

ential voices within the administration opposed to using force.

It was no t that everyone was saying, Let's not do it. The re

were, in fact, fierce debates raging. There were people trying to

nudge the system forward, trying to fight the bureaucracy, trying

to persuade incredible skeptics that something had to be done.

But the federal bureaucracy is an enormously powerful entity in

and of itself and it can wipe out arguments in favor of humani-

tarian intervention. There are innumerable ways to kill those

arguments in the bureaucracy, and we have to understand that



1 1 1 2 S O C I A L R E S E A R C H

State Depar tment , the National Secur i t ) ' Council , the Just ice

Depar tment , and v\ i thin the inte l l igence community—unless this

lead ersh ip is focusing on this issue an d saying, Th at 's the r ight

pol icy, an d we can make it ha pp en , the n the bo t tom -up

approach to responding to genocide v\il l often be a totally futile

exercise.

I wo uld like briefly to discuss gen ocid e as a term . Sam an tha

Power writes abo ut this verv' well in h er b ook , abo ut the tor tuo us

pa th th at the bure au crac y took v\ith this wo rd, particularly reg ard-

ing Bosnia , an d th en on the Rw andan si tuat ion in 1994. T he re is

an issue of criminal intent involved in genocide. I t is one of the

issues the tribunals labor over intensely—namelv-, how to deter-

mine that level of criminal intent with genocide. I t can take years

to f ind so m eo ne guilt>^ of ge no cid e, or per ha ps to acq uit so m eo ne

v\ith respect to it . So there is, I think, a healthy recognition that

genocide is a pret tv ' tough word and a tough cr ime to prosecute .

Reg arding t he Kosovo exp er ien ce, I bel ieved that we ne ed ed to

get the a ler t out that something was happening and that i t was

r inging some bel ls on the word genocide.

W e

knew we m ay b e

proved wTong in the end and that technically, from the legal

point of view, genocide did not occur , but we decided that i t was

ind eed accu rate , and im po rtan t to issue a w arning that , as I cal led

it, the

indic tors of genocide

ap pe ared to be presen t . So we decid ed

to set off some alarm bells as to what it might mean over the fol-

lowing weeks in th at con flict if w le t these indicators of gen ocide

con t inue .

However, I would go further, and argue strenuouslv-, even

thotigh I know this is a l i t t le bit heretical, that we must not be

obsessed v\ith th e term gen ocid e. I m ake this po in t as an advo-

cate for h um an r ights , for intern at ion al law, an d for intern at ion al

criminal law. If we are so obsessed, we will, ironically, stunt the

abilitv^ of gov ern m en ts to re act to th ese crim es. W eeks can pass by



WAR CRIMES AND CLIN TO N 11 13

decided whether or not a crime constitutes genocide, and in the

final analysis, the courts decide precisely what crime occurred.

In terms of our responsibility to respond to crimes that are

being committed, I flnd it much more facilitating, within a

bureaucracy, to argue simply that crimes

g inst hum nity

are

occurring. Crimes against humanity can be of far greater dimen-

sion than genocide. Criminal conduct may be occurring on the

grou nd that leads to mass killings or to mass expulsions. Criminal

conduct of this character must be responded to. We cannot have

a strategy tha t requires us flrst to determ ine w hethe r genocide has

occurred and then figure out what our responsibility is to respond

to genocide. I tried to instill, certainly in the Kosovo conflict of

1999,

the notion that, while we can talk about genocide, there

were crimes against humanity and war crimes being committed

on a vast scale that required and legitimized a military response

to try to discourage Belgrade from con tinuing the commission of

those crimes. I ho pe this becomes mo re the norm , so that w talk

about these crimes with terminology that is more useful.

For this reason, I have proposed a new categor)' of description

for the crimes that are of central concern to the international

criminal tribunals: Yugosla\'ia, Rwanda, Sierra Leone, the Inter-

national Criminal Court, and others. That category of crimes is

atrocity crimes l introduce the term because no other term accu-

rately describes the law of the tribunals as a totality. International

hum anita rian law, interna tional criminal law, and interna-

tional hum an rights law are all much broa der than what we see

in the tribunals . Military law is much too confining. And seri-

ous crimes un de r internationa l law is so \ag ue a term that w do

no t know what we are talking about. Atrocity is a far m ore use-

ful word. Atrocity crimes, and the coun terp art te rm , atrocity

law, would deal with crimes tha t are of significant magn itude,

each o ne of which is a crime und er international criminal law, but

of a peculiar character that is being shaped by the tribunals year



1114 SOC IAL RESEAR CH

quickly than allegations of violations of international humanitar-

ian law (Scheffer, 2002: 389).

I would like to briefly address some issues arising from Amer-

ica s responses to atrocities. Perhaps the best w y to describe what

we did in Rwanda in 1994 is to say tha t

we

acted conventionally to

an unconventional crisis. As many as 8 000 people a day were

being hacked to death in Rwanda. That is unconventioned. It is

not even a normal aXiocixy: it is beyond all sense of comparison.

We need a response mechanism that recognizes when unconven

t on l think ing is called for. WTiat ha pp en ed in W ashington, how-

ever, was that traditional constraints were brought to bear on a

totally untraditional, unconventional problem, and that set us

back weeks in term s of framing a response . The real lesson of that

crisis. I think, was that Rwanda was not, technically speaking, a

legal failure of ours under the Genocide Convention, but a vast

political failure on the part of our systems to respond adequately

to that crisis.

In July 1995, we were faced with the massacres near Srebrenica

in Bosnia and Herzegovina. The challenge, again, was the top-

dowTi requirement of how a nation like the United States

responds to a situation like this. Months before the Srebrenica

massacres occu rred, a high official stated, in an im portan t setting

in Washington, that we can sacrifice the safe areas in Bosnia. His

point w s tha t there were bigger issues to deal with in the Balkans.

That set a tone and established a framework. When Srebrenica

suddenly occurred, we were fighting against that tone and frame-

work, arguing that in fact saving Srebrenica does matter, and

Zepa, which w s the next one , and G orazde, which followed Zepa.



WAR CRIMES AND CLIN TO N 111 5

ducted over Kosovo and Serbia during those critical months in

1999.1 do not think

w

can justiflably defend the unfe ttered right

to persist in an air campaign, no matter how sophisticated the

weaponry, without considering the ground option to get the job

do ne strictly in accordance with the law of war. A poin t w ll com e

during the air campaign where soldiers are needed on the

ground— adm ittedly, who will take a risk—to be tter targe t what is

being hit and to take out targets on which air power should not

be used, especially dual-use targets (such as power plants, for

exam ple), where military applications need to be neutralized but

civilian uses that may be critical need to be preserved, if possible,

within the constraints of military necessit) .

At the en d of 1998, President Bill Clinton created the Atrocities

Prevention Interagency Working Group, which I led. For

tw

years we did a great deal of work on the issue of how to prevent

atrocities: How do we recognize a situation on the horizon as a

killing situation, requiring more than conventional conflict pre-

vention analysis? With an atrocity on the horizon, what can actu-

ally be done to get involved soon enough to prevent it? We met

with a great deal of resistance to the project. The intelligence

communit) , to its credit, was qu ite en thused abou t it, and pro-

vided us with information and analyses for which we were grate-

ful. I often found, however, that intelligence did not get the

necessary support from the top-down, with the result that they

lacked the resources and staff that would make atrocities preven-

tion work the best that it could possibly be. This is a fundam ental

problem to be addressed.

I would like to conclude by discussing the United States posi-

tion at the Rom e diplomatic conference held between Ju ne and



1116 SOC IAL RESEARC H

crippling concern for the United States, since it eliminated the

possibility of potential reservations as a way to frame problem

issues for W ashington to decide later. Treatv reser\ ation law,

allowing flexihilitv without killing a treat) , is a long , rich, and

deep tradition in international law, and I believe we need to be

able to examine and consider it. Unfortunateh^ time constraints

made it impossible to build the necessary consensus with the Pen-

tagon, State Department, and other involved agencies. But in the

two years that followed, we did not walk away from the process.

The U nited States delegation join ed the consensus on the rules of

procedure and exidence and on the elements of crimes in June

2000, and we did so with great intent. WTiile there were some

issues that remained unresolved at the end of 2000, President

Clinton was con\dnced that it was a document that should have

the United States signature on it. I hope that the United States

acts smartly about this now.

There are many steps the United States can take now, unilater-

ally, to position itself to be more comfortable with the Interna-

tional Criminal Court. We need to re\ise Title 18, the federal

criminal code, and Title 10, the United States military code, so

that the United States has a domestic law that properly incorpo-

rates ICC crimes. With these re\isions, if American authorities

want to prosecute these crimes, the ICC jud ges will recognize that

we have the capabilitv to do so. Eor some of these crimes we do

not currently have that capabilit), so we are needlessly at risk.

Even opponents to the ICC should want to enact such amend-

ments to th e federal and militar) codes, but do ing so will take ini-

tiative in Washington.

The United States also needs to stay at the table. The Bush

administration has now walked away from the table, away from

the right to negotiate the definition for the crime of aggression,



CRIMES AND CLINTON 1117

away from those responsibilities is egregious conduct, and it

should be called to account for it.

References

Power, Samantha.

A

roblem

rom Hell : America nd

the

A ge of Genocide.

New York: Basic Book s, 2002.

Scheffer, David. The Future of Atrocity

Law. Suffolk Transnational Law

Review 25 Sum mer 2002) : 389.

david scheffer - war crimes and the clinton administration

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