Reviewed by Edward Gordon, Honorary Vice President, American Branch, International Law Association. E-mail: gordon23 [at] gmail.com.
David Scheffer was senior advisor and counsel to Madeleine Albright from 1993 to 1996, when she was the US ambassador to the UN, and ambassador-at-large for war crimes issues thereafter until the end of the Clinton Administration. The two roles placed him at the center of international efforts to establish criminal tribunals to bring to justice leading perpetrators of atrocities in the Balkans, Rwanda, Sierra Leone and Cambodia, and to create the first permanent international criminal tribunal, the International Criminal Court (ICC). All the Missing Souls recounts these efforts, their successes and the frustrations encountered in achieving them.
“[T]he task,” Scheffer makes clear from the outset, “was not to construct a new legal order of perfect justice where every war criminal from the top leaders on down to the foot soldiers would be prosecuted. Rather, the challenge centered on building tribunals that would hold political and military leaders to account for the atrocity crimes unleashed on innocent civilian populations for which they were primarily responsible. By the turn of the century, it was no longer plausible to argue that there was a logical or moral basis for leadership impunity” (p.3).
The viciousness of the atrocities and the number of victims they claimed are staggering. In Cambodia, during the Pol Pot era (April 1975 to January 1979), an estimated 1.7 million people perished at the hands of the Khmer Rouge, and millions more victims envied the dead. In Kosovo, in March 1977 alone, half a million persons were displaced as a result of ethnic cleansing. In Rwanda, over a period of a hundred days in 1994, an estimated 800,000 women, children and men were massacred. The rampage that targeted civilians in Sierra Leone in February 1998 created some 600,000 refugees.
But numbers like these can be numbing, sanitizing even the most gruesome carnage they register. Scheffer won’t let the reader off that easily. On the very first page, for example, he recalls “a teenage girl [who] lay before me in the shade of a small overcrowded hospital where mutilated victims, some only children, waited for miracles that never arrived. Their bodies were grotesquely disfigured. [The girl], in shock, remained mute. Drug-crazed rebel boys had brutally gang-raped her and poured molten plastic into her eyes during their rampage through the city. . . .”
The boys had not acted spontaneously or on their own. They had been recruited, trained and armed by adults seeking control of diamond mining, in pursuit of the profits from the sale of what became known as “blood diamonds.” In other cases, the motives for atrocity were to be found in a lust for power, revenge, or in ethnocentric rage. Whatever the impelling force, their common criminal characteristic was the terrorizing, torturing and murder of civilian populations. Scheffer and others like him were determined to deprive the perpetrators of crimes like these of any expectation of impunity.
Like many memoirs, his are subjective, selective and not invariably chivalrous. [*145] Unlike some, though, his are not an excuse to take solo bows or to deny applause to others. But they do reveal a greater degree of bitterness and indignation than others of the genre, in his case at the sheer amount of time and energy he was obliged to expend overcoming a wearying monotony of nit-picking, turf-protecting bureaucratic foot-dragging – not just in Washington, but in foreign capitals and among certain UN officials and career staff as well, both in negotiations leading to the creation of war crimes tribunals and in the implementation of their missions.
Understandably, international civil servants are wary of their public authority being subverted to mere agency by influential states, especially big powers, the US probably more than any other. No matter how benevolent its intent, Scheffer’s eagerness to revive the spirit of Nuremberg and give it permanent institutional momentum may have struck some UN personnel as symptomatic of American arrogance, paternalism and even imperialism. The tension between autonomy and member state influence is an old story at the UN, after all, but then again so is American frustration with the sometimes languid pace of the UN’s implementation of even the most urgent and widely supported policy initiatives.
The role the US should play in support of a regime of international war crimes tribunals was questioned in several quarters. Some observers outside the US, suspect that all US military involvement is designed strictly to advance US national security or economic interests, rather than to promote global interests that form the rationale for peacekeeping, law enforcement and humanitarian efforts in which the international community, as such, participate. As Scheffer pointedly reminds readers, these suspicions are hardly allayed by what has become known, none too politely in some quarters, as US exceptionalism, its insistence, in this case, that US military personnel and civilian officials be immune from prosecution for the crimes it wants punished when committed by others. Richard Falk describes this attitude, succinctly, as “everybody but us” (p.115). The rest of the world’s just not buying it.
In fact, the resentment it breeds is so well-known that it is hard to understand why, if Scheffer is right in saying so, the Pentagon – its uniformed and ununiformed leaders alike – continued to insist on “seal-tight ways to immunize all [US] soldiers from the reach of the [ICC]” (p.181). In the Pentagon’s view, apparently, the massive deployment of US forces justified exceptional protection for US military personnel, meaning outright immunity from prosecution or prosecution only with the prior permission of the US Government or the Security Council (where it would be subject to a US veto). As could be expected, this argument evoked the response that, if anything, the US military’s heavy footprint abroad calls for especially rigorous attention to its compliance with international norms of military conduct. Still, Scheffer writes, “the Pentagon never seemed to recognize how impractical [its] insistence on the alleged war criminal’s government consenting to his prosecution sounded to the rest of the world” (id), or that its insistence upon complete immunity was having the unintended effect of depriving even the best-intentioned US military missions of legitimacy.
For its part, the military was wary of mission creep, still traumatized by its Blackhawk Down experience in Somalia, and skeptical in any event of the merit of exposing soldiers to exceptional danger for the sake of pursuing war criminals. Nor was it alone within the US Government in feeling this way, or in suspecting that, sooner or later, politically-motivated [*146] international prosecutors and judges will use their authority to charge American military or civilian personnel with war crimes for no better reason than to demonstrate their independence from the US or to discredit it politically.
However valid in themselves, Scheffer tells us, concerns like these too often served as convenient fall back positions for anything the Pentagon hesitated to assume responsibility for or viewed as unorthodox. Nor, in his view, did they fully explain the military’s reluctance to provide international prosecutors with classified intelligence that could be used in investigating crimes or tracking down and apprehending criminals.
Although Scheffer does not dwell on it, specific misgivings often stem from a more generalized aversion to civilian intrusions into military affairs, especially intrusions emanating from lawyers. For military planners, entitling civilian judges to impose criminal sanctions on soldiers and war planners represents the imposition of standards and procedures over which the military has no control to enforce accountability for rules of combat it has little hand in creating.
It is not just among military leaders that retributive justice is seen to have no rightful place in international relations. “It is to the credit of the statesmen who negotiated the settlement of the post-Napoleonic period that they resisted the temptation of a punitive peace,” Henry Kissinger wrote almost sixty years ago (Kissinger 1954, at p.140). “[T]hey were seeking equilibrium and not retribution, legitimacy and not punishment” (id). Half a century later, as the ICC was coming into existence, Kissinger decried what he called a “dictatorship of the virtuous.” “In less than a decade,” he wrote in FOREIGN AFFAIRS, “an unprecedented movement has emerged to submit international politics to judicial procedures. International adjudication is being pushed to extremes which risk substituting the tyranny of judges for that of government” (Kissinger 2001, at p.86).
He is mistaken. The concept of war crimes and tribunals to punish war criminals is not unprecedented; the creation of the post-Nuremberg generation of tribunals took decades; and debates about them were recurrent and prolonged throughout the twentieth century. The phrase “war crimes” itself dates back to the 1870s (Segesser and Gessler, at p.453). The punishment of war crimes was under constant discussion both during and after the First World War. The Responsibilities Commission set up in connection with Versailles drew up a list of actions that it considered to be violations of the laws and customs of war, including massacres, systematic terrorism, deliberate starvation of civilians, enforced prostitution, forced labor of civilians and the internment of civilians under inhumane conditions. The Advisory Committee of Jurists of the League of Nations recommended the creation of an international criminal court to deal with crimes of war and the crime of waging war. Even after Versailles, and despite misgivings over the consequences of economic penalties imposed on Germany and Austria, private organizations like the International Law Association, the Interparliamentary Union and the International Penal Law Association placed the subject of the creation of a war crimes tribunal on their agendas (id at p.454). And then there was Nuremberg.
It is true that during the half century that elapsed between the conclusion of the trials at Nuremberg in 1946 and the revival of its spirit in the 1990s the idea that retributive justice has an integral place in a modern global order was kept alive not by governments and statesmen, but by individuals and groups acting in their private capacity. At some point, the energy that the [*147] private initiative generated was sufficient to place indifference to global justice on the defensive (Falk, at p.125). By now, in any event, what could once claim to be realistic in foreign policy has lost its empirical underpinnings. Ignoring, bemoaning or discrediting the advent of international criminal courts has become, if anything, an escape from political reality.
Scheffer comes down hard on Washington’s non-military leadership, not just the Pentagon’s. President Bill Clinton, who appointed Scheffer to his ambassadorship, comes in for repeated criticism here, notably for his unwillingness to break policy deadlocks and his indecisiveness at other critical moments. Referring to the endless delay in apprehending two high-ranking defendants from the Balkans conflict, for example, Scheffer writes: “I never saw Clinton enter the ring to grapple with the toughest problems that, if overcome with his personal engagement, might have led to rapid arrests of [Radovan] Karadzic and [Ratko] Mladic” (p.126). This is far from being the least flattering thing Scheffer has to say about Clinton, but his assessment of Clinton’s presidency is positively exuberant compared to what he has to say about President Bush and his.
The State Department is taken to task, too. Even in the face of some of the most horrific atrocities, Scheffer recalls, “the priority for the African specialists in the State Department was for a peace deal, at whatever cost to justice” (p.312). “I spent much of my time lobbying all the regional bureaus to take international justice seriously” (id). The Treasury Department was concerned principally with keeping drug enforcement cases out of the ICC’s jurisdiction. The Justice Department was determined to keep both drug trafficking and crimes of terrorism away from the ICC, seeking to control access to the ICC with respect to any case of concern to the Department. Like their Pentagon counterparts, DoJ lawyers wanted to subject all ICC prosecutions to UN Security Council approval; like their counterparts at DoD, they “took far too long to recognize how toxic sole reliance on the Security Council to control referrals [to the ICC] appeared to almost the entire world save a couple of the other permanent members of the Council (Russia and China)” (p.181). “The world of genocide, crimes against humanity, and war crimes remained mostly alien to the day-to-day work or interests of our Justice colleagues,” Scheffer charges (p.174).
He is more constrained in criticizing the non-military intelligence community, a group whom I will dare to identify – strictly in code, you understand – as the leprechauns from Langley. If we are to take him at his word, their procrastination can be traced principally to logistical problems presented by shortages of assigned personnel and resources, and to the vagueness of requests from certain of the war crimes prosecutors for information concerning goings-on in zones of atrocity and the whereabouts of suspected or already indicted criminals. It’s hard to believe that that’s all there was to it.
Future historians are likely to focus upon an aspect of the change that was gathering momentum in the 1990s that Scheffer doesn’t mention: the accelerating pace of the liberation of women worldwide. Even now, with little benefit from hindsight, one wonders to what extent the wave of atrocities that erupted from the seventies to the nineties was related in some way to the disestablishment globally of the presumption of male societal dominance. Can it have been merely coincidental that virtually all the criminals were men, or that most of the professional and bureaucratic griping, sniping and resistance of which Scheffer complains emanated from men, or that a disproportionate number of the victims were women and children, or that since the [*148] establishment of the ICC and the other war crimes tribunals the number of women taking courses and following careers in international humanitarian law and the leadership role that women have assumed in this field have increased dramatically?
Scheffer himself puts things in proper perspective when he writes: “I learned through extraordinary journeys that international justice has as much to do with the vagaries of global politics and our own moral strength as it does with treaties, courtrooms, prosecutors, judges and defendants. The modern pursuit of international justice is the discovery of our values, our weaknesses, our strengths, and our will to preserve and to render punishment” (p.8).
Falk, Richard. 2011 "Accountability for War Crimes and the Legacy of Nuremberg," in Aleksander Jokie, ed., War Crimes and Collective Wrongdoing. Malden MA and Oxford: Blackwell. at pp.113-136.
Kissinger, Henry A. 1954. A World Restored: Metternich, Castlereigh and the Problems of Peace 1812-1822. Boston: Houghton Mifflin.
Kissinger, Henry A. 2001 “The Pitfalls of Universal Jurisdiction.” Foreign Affairs (July/August)pp.86-96.
Segesser, Daniel Marc, and Myriam Gessler. 2005. “Ralph Lemkin and the International Debate on the Punishment of War Crimes,” Journal of Genocide Research 7(4): 453-468.
© Copyright 2012 by the author, Edward Gordon.