David Scheffer, the first-ever war crimes ambassador for the US, will speak about "The Challenges of International Justice" on Monday, April 8, at Vassar College's Sanders Classroom Building, Spitzer Auditorium. Currently serving as the UN Secretary-General's Special Expert on United Nations Assistance to the Khmer Rouge Trials, Scheffer's past work in the Balkans and Rwanda contributed to the creation of the International Criminal Court in 2002. In anticipation of the talk, which will explore his recent war crimes work in Cambodia and his 2012 memoir All the Missing Souls: A Personal History of the War Crimes Tribunals, Chronogram presents a Q&A with Scheffer on the topic of international justice.
Chronogram: What is the biggest challenge to international justice currently?
David Scheffer: The biggest challenge to international justice currently is political will, particularly the will of governments to enforce international arrest warrants against indicted fugitives roaming free on their territory and to provide the necessary financing to ensure the full operations of the international and hybrid war crimes tribunals. These are sometimes very tough decisions for governments to make because it can mean putting international justice goals ahead of national priorities, but if justice is the objective then political will is essential to meet it.
CM: There seems to be a problem with ending conflicts effectively and expeditiously and bringing justice afterwards. What can be done to improve this process?
DS: Ending conflicts is a highly complex diplomatic and often military endeavor. It is not the task of international justice literally to end conflicts and we should not burden war crimes tribunals with that responsibility. Achieving justice in the aftermath of conflict is a necessary goal in the modern era and that is why we have witnessed the creation of so many war crimes tribunals, some of them created in the middle of the conflicts and continuing long thereafter. The creation of the permanent International Criminal Court, which began to operate in 2002, was a major step to improving the process by ensuring the existence of a highly professional war crimes tribunal even at the beginning of conflicts so that all are on notice of their potential liability for commission of atrocity crimes. But again, it is folly to thrust the burden of ending conflicts or even deterring them on the backs of the tribunals. Their job is to investigate and prosecute perpetrators of atrocity crimes and bring them to justice, and that is an enormous challenge in and of itself.
CM: What has been learned through the war crimes trials in Rwanda, Yugoslavia, and Cambodia? What can be done better by the international community moving forward?
DS: This is a huge question that thousands of books and law review articles seek to address, so I won't even try to begin here. All I can say is that the end of leadership impunity for atrocity crimes draws nearer thanks to the work of the war crimes tribunals for the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia and the permanent International Criminal Court. We have learned that the cooperation of governments remains essential for the successful work of the tribunals, that sufficient funding must be available to cover the cost of international justice, that the public must exercise patience in waiting for the investigation, prosecution, and judgment phases of each defendant's case because it does take much longer under international criminal law to achieve ultimate justice, and that the outreach of each tribunal with the public (including victims and perpetrators) is essential for the educational and healing process to begin. The international community needs to do better at funding the tribunals, supporting their investigative work and arrest strategies with full cooperation, and using diplomatic pressure to press reluctant governments to act in the interests of justice rather than their narrow national interests alone.
CM: Which aspect do you think has proven more important after conficts: peace and reconciliation commissions that offer immunity in return for full disclosure of past crimes, or trials of officials previously involved in atrocities?
DS: This is not necessarily a choice anymore. It was 20 years ago when the a peace and reconciliation commission approach was employed in South Africa. But during the last two decades the creation of the permanent International Criminal Court, with 121 states parties (including South Africa), and the long usage of other war crimes tribunals have changed the landscape. The international crimes of genocide, crimes against humanity, and serious war crimes cannot be bargained way anymore; political, military, and even business leaders stand accountable for their actions under international law now, and nations have accepted that reality in their ratification of the Rome Statute of the International Criminal Court. Nonetheless, there remains the opportunity to explore peace and reconciliation commissions for mid-level and low-level perpetrators of atrocity crimes, namely those individuals who would not be subject to investigation and prosecution anyway by the war crimes tribunals. Even there, though, nations are increasingly building into their criminal codes the enforcement of criminal law for the commission of atrocity crimes. It may remain the possibility that full disclosure of past crimes might enable mid-level and low-life perpetrators to avoid enforcement of such domestic criminal law, but that depends on the particular country at stake and its criminal code.