All the Missing Souls: A Personal History of the War Crimes Tribunals, by David Scheffer, Princeton University Press, RRP£24.95, 570 pages
Seventy years ago this week, on January 12 1942, the representatives of nine countries occupied by Nazi Germany met at St James’s Palace in London to discuss German war crimes perpetrated against civilian populations. Led by France’s Charles de Gaulle and Poland’s General Sikorski, they resolved to place “amongst their principal war aims [the] punishment through the channel of organised justice of those guilty and responsible for these crimes, whether they have ordered them, perpetrated them or in any way participated in them”. This fleshed out a commitment made a few weeks earlier by Roosevelt and Churchill to establish a United Nations War Crimes Commission to investigate the facts, and to ensure that the perpetrators of these crimes “shall answer for them before courts of law”.
While it may be standard today, back then a commitment to subject international crimes to “organised justice” before courts of law was highly unusual. It led directly to the world’s first international military tribunal, created in London in the summer of 1945, sitting in Nuremburg, that tried major Nazi war criminals. Nineteen were convicted for crimes against peace, war crimes and, well ahead of its time, crimes against humanity, a term coined by the Cambridge law professor Hersch Lauterpacht. The Tokyo military tribunal followed. Then in 1948 states adopted the Genocide Convention, which enshrined the idea of a permanent international penal tribunal to try those charged with the new crime, working alongside competent national courts under a principle of universal jurisdiction. This, the first modern human rights instrument, also broke ground in criminalising such acts in times of peace as well as war, including within national boundaries against a state’s own citizens.
For nearly five decades nothing much happened to make the idea of international criminal courts a reality. And for years legal experts toiled at the UN’s International Law Commission over the minutiae of a possible international criminal court (which they eventually agreed upon in 1994). Then, against the background of the bloodshed and international inaction that attended the dissolution of Yugoslavia, something finally did change.
David Scheffer, the author of this meticulous account, was present at the top tables in those important years, marking a second stage in the delivery of international justice. From 1993 to 1997 he served as senior adviser to Madeleine Albright, the US ambassador to the UN, and then until 2001, on President Bill Clinton’s nomination, he became the first US ambassador-at-large for war crimes issues.
Scheffer is therefore particularly well placed to describe the changes that occurred over that eight-year period. He was directly involved in efforts to establish two ad hoc bodies – the International Criminal Tribunals for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunals for Rwanda in 1994. In both cases the tribunals were established by the Security Council in response to atrocities that had already occurred, and in the face of political failings and inaction. Four years later, in Rome, he headed the US team negotiating the Statute of the International Criminal Court (ICC), adopted in the summer of 1998. And in the years that he remained in office, he was involved in the establishment of internationalised courts to deal with crimes committed in Sierra Leone.
By the time Scheffer left office, the international legal landscape was very different from the one he first looked out on. International courts are now an established part of the emerging, fragile world order, such as it is, with independent judges and prosecutors vying with government and national courts to prevent impunity by the punishment of crimes. The challenges are visible today in Libya, as the north African country’s new government and the ICC struggle to decide on the fate of Saif Gaddafi, indicted for crimes against humanity.
All the Missing Souls: A Personal History of the War Crimes Tribunals is first and foremost an insider’s account, and one written from a US perspective. That is not a criticism: we get a clear description of the efforts of the US defence department to avoid the possibility that any of its military personnel might be subjected to international jurisdiction, and the ploys of various Republican politicians to stymie international developments limiting future US action and sovereignty. The wrangling over detail will fascinate the boffins, perhaps less so outsiders. No country has done more to create an international justice system than the US, or to keep itself outside the reach of that system. If nothing else, Scheffer’s account establishes that for the US, even for the Clinton administration, this was about making international law for others.
Nowhere was the challenge more acute than when it came to the creation of the International Criminal Court. Happily, Scheffer doesn’t mince words. He is now able to confirm that some of the instructions he was sent from Washington for the Rome ICC negotiations were “self-destructive”, largely motivated by the “fear of prosecution of American soldiers and officials”. He was told to promote a key role for the Security Council, thereby allowing the US to veto anything that was troublesome. The approach was doomed to failure: on some matters, the world has moved on since 1945. Even the UK went its own way, with a Labour government treating the court “as a plank for a new international order”. Scheffer was left holding hands with Russia and China and “practically no one else”. In the end the US was cast adrift by a powerful but unlikely coalition of non-governmental organisations and states in the non-aligned movement. Japan, France and Britain abandoned the US position of opposing an independent prosecutor who could initiate investigations.
The effect of this approach was disastrous for the US, as Scheffer’s day-by-day account of the four weeks of negotiations makes clear. On July 6 1998 the situation is “increasingly grim”. On July 15, Scheffer awakes to a “scathing New York Times editorial” that calls on the rest of the world to forget the US and proceed to agreement. The next day, Washington instructs him to maintain proposals Scheffer now calls “futile” and put them to a vote. He gets almost no support. Following that “debacle”, he is then told to go for a written recorded vote on the adoption of the ICC Statute, knowing that an embarrassing defeat is a dead certainty. It duly follows. Out of 148 states voting, the US opposition is supported by just six other states: China, Israel, Iraq, Cuba, Syria and Yemen.
Eighteen months after this “debacle” – reflecting a new world order that Washington is having difficulty getting used to – Clinton nevertheless signed the Rome Statute, shortly before leaving office. A few months later President George W Bush “unsigned” the Statute. Yet the Bush administration’s outright objection to the ICC melted away, and in 2005 the US abstained in a Security Council vote referring the situation in Sudan, which was not a party to the Statute, to the ICC prosecutor. Six years later, the US voted in favour of referring the situation in Libya, also not a party, to the ICC prosecutor. The ICC has come of age, a permanent part of the landscape. This is a development in which Scheffer can and should take comfort. Even if he was sometimes handed a difficult brief, Scheffer’s instincts were right and his achievements significant, and he has offered a balanced and fair account that touches on many big issues.
He is right to focus on the importance of choosing decent judges and prosecutors and on the need to define with great care the crimes that will be subject to international proceedings. He is also right to consider the possibility of amnesty to avoid criminal proceedings if that might bring the killings to an earlier end.
On other issues, however, he remains quixotic. Why should the US be able to prevent its nationals from being subject to ICC proceedings if they torture or kill in violation of ICC standards in a country that is a party to the ICC Statute, such as Afghanistan? Why should the ICTY not hold Nato nationals to account for the bombing of a television station in Belgrade? A real danger that Scheffer does not fully address is that the system that has been constructed will deliver a lopsided justice, for the powerful and the victorious, only against losers and the weak. And, despite his support for the principle of complementarity – the need to give national courts the primary role in prosecuting international crimes – he has nothing to say about the extraordinary arrest of Senator Augusto Pinochet, in London in November 1998.
One big question floats around these pages: what are international criminal courts really for? Sudan’s Omar al-Bashir remains active in office years after being indicted for genocide by the ICC. Scheffer touches on the possible deterrent effect of these new bodies, but surely that is expecting too much. The evidence suggests that those who stand accused of having committed an international crime might change their travel plans. In truth, international courts are still more about the punishment of a few than about prevention, establishing the facts, and the longer-term goal of clarifying the rules that apply to the future atrocities that will surely occur. They may also serve to delegitimise certain leaders, a precursor to military options, as happened with Muammar Gaddafi in Libya.
A former academic colleague and distinguished professor of English legal history once reminded me just how long it took for the system of English courts to develop. “These things take time”, he would say, “centuries even”. He was right. These are early days, as the international system of justice emerges from its medieval phase. It’s a long haul.
Philippe Sands QC is professor of law at University College London and author of ‘Lawless World’ (Penguin)