David Scheffer, former Ambassador-at-Large for War Crimes Issues and current United Nations Secretary-General’s Special Expert on UN Assistance to the Khmer Rouge Trials, traces the evolution of an international criminal justice system from the Nuremberg trials through today.
NARRATOR: This is Voices on Genocide Prevention from the United States Holocaust Memorial Museum.
JEAN FREEDBERG: Welcome, Ambassador Scheffer, to the Museum. We’re really thrilled to have you with us this evening for what should be a very interesting discussion. Let me just ask you the very big question first. Why is it important to bring the perpetrators of the world’s worst crimes to justice?
DAVID SCHEFFER: Well, first, I think we like to think that we live in a world governed by the rule of law. We certainly try to abide by that principle in our domestic lives, in our communities, and in our nations. That same principle actually applies globally—that you cannot tolerate a system that actually perpetuates genocide, crimes against humanity, and massive war crimes, and not have some level of accountability for the leadership culpability that is so often associated with the commission of those crimes. It doesn’t guarantee deterrence for the future, but it’s a pretty good bet that you have a better shot at deterrence for the future, if you actually bring these leaders to account for it than if you don’t. And frankly, the whole purpose of criminal courts is to render punishment for the commission of these crimes, and I think at some point you have to recognize that, at a leadership level in the world where these atrocity crimes are perpetuated, there has to be a moment of culpability and of accountability and, frankly, of punishment for the commission of those crimes.
JEAN FREEDBERG: This notion of international justice is a relatively modern one arising out of the Holocaust. Can you talk a little bit about why, after that event, it seemed that really shocked the world’s conscience, and why it was coming out of that we had the Nuremberg trials and everything that has subsequently taken place?
DAVID SCHEFFER: Right. The Holocaust during World War II was sort of shock treatment to the system of international justice that was almost nonexistent at that point in world history. I think it is important to remember that one of the originating concepts of the Nuremberg trials actually was not the Holocaust itself, but was the notion of aggression, that the Nazi regime had unleashed aggression across the European and, frankly, global landscape. But as the trial progressed, and as the evidence mounted in that trial, frankly it was the Holocaust which began to take center stage in the Nuremberg trials, and began to sort of demonstrate that this war was not just about aggression. It was actually about mass murder on a scale that, frankly, in contemporary times we had never even imagined. And so that principle does resonate down through the 1990s and into our current times, but we had a long period of the Cold War where it basically receded in our memory. The Nuremberg and Tokyo tribunals were memories. They were not operational principles in the international system, and it wasn’t until about seventeen or eighteen years ago that we actually began to operationalize the lessons of the Holocaust and of these two military tribunals after World War II into a new era of international criminal tribunals.
JEAN FREEDBERG: What are the principles that underlie those tribunals, the legal principles, why did they exist?
DAVID SCHEFFER: Well, the principles that underlie these tribunals over the last seventeen to eighteen years are grounded in criminal law, both in terms of the ability to prosecute individuals for the commission of massive atrocity crimes, and also due process. The fact that we do provide defendants, as evil or heinous as we may presume they are, not until proven beyond a reasonable doubt in a court of law, do we actually bring the hammer of punishment down upon them, and that due process that we have to respect in these courts of law has been a key principle of operation. Very frustrating to some victims, very frustrating to the United Nations and other donor nations that want to see these trials efficiently conducted, perhaps on the same time scale as the Nuremberg trials, which were really conducted over a one-year period. But frankly, in modern criminal justice on the international level, due process requirements actually demand a much longer period of time to conduct investigations, and then the trials themselves.
JEAN FREEDBERG: One of the biggest challenges facing governments today, as they try to figure out what to do with these perpetrators of the world’s worst crimes, is about whether to bring them to justice, for so many of these crimes are committed in the course of wars declared or undeclared. How should governments navigate through those mine fields?
DAVID SCHEFFER: Well, I think one of the transformational developments of the last twenty years is that there’s no longer a presumption of impunity from the law with respect to the commission of these atrocity crimes. Twenty years ago it was perfectly natural to walk into a policy room and say, “Let’s talk about immunizing this leader. Let’s talk about flying him to a nice beach somewhere and letting him live happily ever after,” after the commission of atrocious crimes. Now, some of that will probably still happen, but the presumption is totally different over the last twenty years. The presumption now is that this individual actually should stand justice. Can we gather the necessary forces and the necessary political will to bring him to justice? Do we have the jurisdiction of the right court to do so? Do we have the ability to gain custody of him ultimately, not immediately, but ultimately, maybe many years from now? That is the discussion that’s at the table now, and it’s a very important one. I think the facts show that over the last twenty years, bringing these individuals to justice through prosecutions actually is beginning to build a much better track record in countries of observance of human rights principles than otherwise. And it’s also actually beginning to delegitimize these leaders while they’re in power. They get indicted. Frankly, they’re delegitimized in the international community and ultimately among the people, themselves. Now, there will always be exceptions to that, but the transformation in the last twenty years is a reversal of presumption, and that is incredibly important. We actually owe it to our memory of what happened at Nuremberg.
JEAN FREEDBERG: Yet there are some who say that, for instance, indicting [Omar al] Bashir of Sudan, while he was the sitting president, could be counterproductive in that while he was still in power with a certain amount of legitimacy, you know, he could ignore the indictment.
DAVID SCHEFFER: Yeah. You know, the argument that somehow not indicting President Bashir of Sudan would have somehow resulted in some more peaceful situation in Sudan, particularly with respect to Darfur, I think is a false argument. While he was not indicted, in other words before he was indicted, there was ample opportunity for President Bashir to achieve a more peaceful solution in his country, so we always have to look at the reverse of this argument. Show me the leaders who have not been indicted who actually come to the peace table. Has [Robert] Mugabe done so, with respect to Zimbabwe? Has [Bashar al] Assad of Syria done so with respect to Syria? They’re not indicted. Are they coming to the peace table? Are they trying to resolve the problems in their country? No. I think if you actually put them at risk of indictment it changes the ballgame. We saw this with [Slobodan] Milošević. We saw this with Charles Taylor. It changes the ballgame. It starts to delegitimize them. It corners them and, frankly, they have to start thinking about how do they mitigate their situation, as opposed to perpetuate it.
JEAN FREEDBERG: You were very instrumental in the founding of the International Criminal Court. There are many who have said that that Court has not lived up to its promise, that it’s still got a long way to go, that it might not even be that useful. Can you just talk a little bit about what you see as the success of the Court, or the establishment of the Court, and how it’s doing so far, and some of its challenges?
DAVID SCHEFFER: You know, a hundred and twenty nations are now states party to the International Criminal Court. It’s only been operational for nine years. That’s an astonishing buy-in by the international community. You know, we live in an age of instant gratification, but let’s just step back for a moment. In treaty law, and in the building of international institutions, there’s nothing instant about it. And yet, in the context of the—in the experience of the International Criminal Court—frankly, things have developed at warp speed. In terms of the creation of this court, sixty plus ratifications of the Rome Statute required to establish the Court occurred long before anyone had predicted this would happen. So in 2002 it’s established. It has a large number of situations now before it [that are] being investigated. It has a fair number of trials actually being conducted now at the Court, and we’re awaiting the judgment for the very first trial, the [Thomas] Lubanga trial out of the Congo. Now, some people would say, “Oh, why did it take several years, or, you know, a number of years for all of this to happen?” You bet it does in international justice. You have to investigate mass atrocity crimes, thousands and thousands of deaths. You have to work your way up a command responsibility chain to actually pin the responsibility on a leader. That takes time, it takes effort, but it’s worth it, I think, for victims, and it’s worth it ultimately for international justice. So, you know, international justice is an exercise in perseverance and patience. Nothing is instantly achieved in international justice.
JEAN FREEDBERG: Can you just say a word or two about why talking about these issues in the Holocaust Museum adds some additional weight to the discussion?
DAVID SCHEFFER: Yes. You know, talking about issues of atrocity crimes and the modern era of international criminal tribunals here in the Holocaust Museum in Washington, DC, is enormously significant, because this building represents the heritage of the crime and of the punishment. Here in this museum, Nuremberg is discussed. It’s shown. It’s revealed. And that was sort of the endgame of the Holocaust. And I think it’s extremely important that we take that as the starting point for understanding that in our time, on our watch, in our generation, we’ve got massive atrocities that have to be dealt with. We have to build the courts that deal with them, and, frankly, we have to do so with a very secure knowledge of what has occurred in the past. We must never forget not only the Holocaust, but frankly Nuremberg and the level of justice that was achieved in the aftermath. It’s never perfect. Justice at Nuremberg was not perfect. Justice today is not perfect, but it’s our duty now to pursue it and to pursue it with as much vigor and determination as we can.
JEAN FREEDBERG: Thank you.
NARRATOR: You have been listening to Voices on Genocide Prevention, from United States Holocaust Memorial Museum. To learn more about responding to and preventing genocide, join us online at www.ushmm.org/genocide.