All the Missing Souls

A Personal History of the War Crimes Tribunals

David Scheffer

• Publisher: Princeton University Press
• Year: 2011
• Print ISBN: 9780691157849, 9780691140155
• eBook ISBN: 9781400839483
• Topic: Social Sciences
• Subtopic: Political Biographies
• Index: Social Sciences

The behind-the-scenes story of how today's war crimes tribunals came to be

Within days of Madeleine Albright's confirmation as U.S. ambassador to the United Nations in 1993, she instructed David Scheffer to spearhead the historic mission to create a war crimes tribunal for the former Yugoslavia. As senior adviser to Albright and then as President Clinton's ambassador-at-large for war crimes issues, Scheffer was at the forefront of the efforts that led to criminal tribunals for the Balkans, Rwanda, Sierra Leone, and Cambodia, and that resulted in the creation of the permanent International Criminal Court. All the Missing Souls is Scheffer's gripping insider's account of the international gamble to prosecute those responsible for genocide, war crimes, and crimes against humanity, and to redress some of the bloodiest human rights atrocities in our time.

Scheffer reveals the truth behind Washington's failures during the 1994 Rwandan genocide and the 1995 Srebrenica massacre, the anemic hunt for notorious war criminals, how American exceptionalism undercut his diplomacy, and the perilous quests for accountability in Kosovo and Cambodia. He takes readers from the killing fields of Sierra Leone to the political back rooms of the U.N. Security Council, providing candid portraits of major figures such as Madeleine Albright, Anthony Lake, Richard Goldstone, Louise Arbour, Samuel "Sandy" Berger, Richard Holbrooke, and Wesley Clark, among others.

A stirring personal account of an important historical chapter, All the Missing Souls provides new insights into the continuing struggle for international justice.

PART I

CHAPTER ONE
AN ECHO OF NUREMBERG

There is an echo in this chamber today. The Nuremberg principles have been reaffirmed.

U.S. ambassador Madeleine K. Albright speaking in the
United Nations Security Council on February 22, 1993

IN THE BEGINNING THERE WAS NO GRAND DESIGN TO BUILD A SERIES OF WAR crimes tribunals culminating in a permanent international criminal court. No one could foresee that there would be enough slaughter of innocents in the 1990s to beckon forth judges and prosecutors for atrocity crimes trials in courts scattered across the globe. But the atrocities in the Balkans in 1991 and 1992 prompted a reckoning for the perpetrators of the ethnic cleansing, killings, and abusive detentions in that region.

Within the relatively short span of eighteen months, beginning with the Serbs’ siege of Vukovar, Croatia, in August 1991, an estimated 3,300 Croatians, 11,500 Serbs, and 30,500 Bosniaks perished.1 Tens of thousands of villagers and farmers—mostly Muslim—were ethnically cleansed from their homes and farms. Strobe Talbott’s column of November 25, 1991, in Time magazine published a photograph of European observers comfortably seated on lawn chairs, dressed in white, observing the targeted shelling of the historic Croatian city of Dubrovnik on the Adriatic Sea.2 The picture epitomized how the West failed an early test in the post-Cold War era. As the Soviet empire crumbled, Yugoslavia descended into war, and the West watched as innocents paid with their lives.

The public turning point occurred in the summer of 1992 with the portrayal of the Omarska detention camp, first by Roy Gutman of Newsday and then by ITN television reporters and the Guardian newspaper. Scores of detention camps holding Bosniaks had been discovered scarring the east Bosnian landscape. Gutman’s book, A Witness to Genocide, later told the much larger story of the ethnic cleansing of Bosnia and Herzegovina in 1992.3 The United Nations Security Council created in October 1992 a five-person Commission to Investigate War Crimes in the former Yugoslavia to compile evidence of the atrocities sweeping across Bosnia and Croatia, with some expectation that the experts might recommend a criminal tribunal if the evidence so warranted.4

In August 1992, under the auspices of the Conference for Security and Cooperation in Europe (CSCE), a three-man team including Swedish judge and diplomat Hans Corell, who the next year would become legal counsel at the United Nations, launched investigative work that led months later to their recommendation that the international community “draft a convention that would establish an international ad hoc tribunal to deal with war crimes and crimes against humanity committed in the former Yugoslavia.”5 The CSCE Council of Ministers instructed the team by the end of 1992 to explore “the possibility of the establishment of an ad hoc tribunal. “6 Though the U.N. Security Council soon would leapfrog their initiative, Corell’s group nonetheless submitted important draft concepts to the United Nations that helped frame the ultimate statute of the Yugoslav Tribunal. Other U.N. bodies—including the Commission on Human Rights and the General Assembly—raised the prospect for prosecutions of atrocity crimes, including the possibility of an ad hoc international criminal tribunal to prosecute perpetrators of “war crimes” in Bosnia and Herzegovina.7

Bill Clinton condemned the Balkans atrocities on the presidential campaign trail in 1992.8 The last secretary of state of President George H. W. Bush’s administration, Lawrence Eagleburger, declared on December 16, 1992, that the United States had provided the Security Council Commission to Investigate War Crimes with the names of five persons suspected of crimes against humanity. He boldly proclaimed: “We know that crimes against humanity have occurred, and we know when and where they occurred. We know, moreover, which forces committed those crimes, and under whose command they operated. And we know, finally, who the political leaders are and to whom those military commanders were—and still are—responsible…. [A] second Nuremberg awaits the practitioners of ethnic cleansing.”9 He named Bosnian Serb leaders Radovan Karadzic and Ratko Mladic and Serbian president Slobodan Milosevic. Eagleburger’s bravado seized the headlines but did not jump-start any tribunal-building process in the final weeks before Bill Clinton became the forty-second president.

In my own transition work advising Madeleine Albright for her confirmation hearing to be the U.S. permanent representative to the United Nations, I focused more on the war and the peace process in Bosnia and Herzegovina than on any grand scheme for accountability. As Albright made her pre-hearing courtesy rounds in the Senate, no one suggested that pursuing justice would somehow solve the military or humanitarian challenges. However, newly elected Senator Paul Coverdell, a Republican from Georgia, and Senator Joe Biden, a long-serving Democrat from Delaware (and future vice president), spoke forcefully to her about the atrocities. Coverdell told her, “If war crimes are not pursued, then all Serbs will be culpable and it will continue to play itself out in a violent manner. We don’t quite know where we are going in Bosnia, do we?” No senator yet pressed her for a war crimes tribunal. In these early discussions, Albright spoke of the “major failure of European institutions” and asked whether the arms embargo that had been imposed on Bosnia by the Security Council in 199110 should be lifted, and how the United States could lead a humanitarian intervention of some character. Senators listened, nodded, and wished her good luck.

A week before Bill Clinton’s first-term inauguration, Warren Christopher, in his Senate hearing for confirmation as secretary of state, pledged that the new administration would support war crimes trials in the Balkans, but he clearly had not thought through how the task would be accomplished.11 Christopher’s commitment, however, opened the door for a growing chorus of support for judicial accountability. Albright’s hearing for confirmation as ambassador to the United Nations, on the day following Clinton’s inauguration, confirmed the point. She confronted the issue during an exchange with Senator Daniel Patrick Moynihan of New York, a former Harvard professor, American ambassador to the United Nations, and recent author on international law. Moynihan observed that genocide was taking place in Bosnia and Herzegovina and that there was a “systematic effort to destroy a population in order that a territory may be ethnically pure.” He wanted Albright “to press the United Nations for war crimes tribunals,” and she agreed to pursue a tribunal.12

Yet Albright remained cautious in those early few days. Shortly after the hearing, she responded to a written question from Senator Larry Pressler of South Dakota as to whether she would support the establishment of a U.N. war crimes tribunal to investigate Serbian government atrocities: “The United States is actively supporting the investigation of atrocities in former Yugoslavia, including Serbian government atrocities. We [the former administration] proposed the establishment of the U.N. War Crimes Commission to investigate atrocities and prepare information useful for the prosecutions. It is imperative that persons responsible for atrocities be held individually responsible.”13 It would have been impolitic to have become so committed to the tribunal as Senator Moynihan had made her seem before Albright could arrive in New York and garner support within the Security Council to achieve just such an objective. Once confirmed, she moved quickly at the United Nations to make creation of the Yugoslav Tribunal her first major achievement.

War and justice, however, marched to different tunes in Washington. The Balkans war was spiraling out of control and seized the most attention. The quest for accountability more often was a sideshow, though of growing importance as the years progressed. Sometimes the two quests of peace and justice would intersect, but usually they advanced along separate pathways. Indeed, one of the common refrains in histories and commentaries about the Yugoslav Tribunal is that the effort to establish the war crimes tribunal served as a token alternative to the tougher choice of military intervention by Western powers during the critical years of 1993, 1994, and 1995. Some scholars believe that the Yugoslav Tribunal diverted into judicial investigations the policy decisions that leaders should have made to intervene with decisive military force to end the Balkan atrocities.14 In other words, the “soft” option of an international criminal tribunal represented a form of action much less costly (but also less immediate in results) than the “hard” option of military intervention. If there was hope for the Yugoslav Tribunal, it was centered more on its potential to deter further atrocity crimes in the region. Since it took more than a year to hire a prosecutor, the real threat of the tribunal to actually force politicians and military commanders who are responsible for atrocities to stand trial did not materialize until late 1994. Even then, the genocide at Srebrenica in July 1995 demonstrated how fragile was the deterrent value of the Yugoslav Tribunal during its early years.

Explorations of military options in the Balkans were separate and highly complex exercises by policy-makers; the prospect of a criminal tribunal had very little to do with those decisions. Yet the erroneous logic persisted that the Yugoslav Tribunal served as the crutch upon which a timid Western alliance leaned to ease its conscience, while avoiding the risks (military, political, moral) that decisive military intervention would have incurred. The Clinton administration often proudly cited the Yugoslav Tribunal as an important initiative in the overall policy process for the Balkans. But discussions and decisions regarding military and other enforcement options (such as economic and diplomatic sanctions) were not propelled by the excuse that establishment of the criminal tribunal covered our backside. The failure to act militarily resulted from policies and circumstances that coexisted with the Yugoslav Tribunal but were not driven by its presence in The Hague.

In fact, military and sanctions strategists often resisted appeals for judicial resources and personnel and dismissed the importance of the Yugoslav Tribunal as primary leverage in negotiations. They offered to sacrifice it for the slightest concession by Serb or Croat leaders.15 During March 1994, Albright, John Shattuck, who was the State Department’s top policy-maker on human rights, and a few other senior officials repelled a strong push by negotiators in the Bosnia Contact Group, which included the United Kingdom, France, Germany, and Russia alongside the United States, to grant amnesty from tribunal prosecution to Radovan Karadzic, Ratko Mladic, Slobodan Milosevic, and other Balkan leaders as bait for their cooperation in the sputtering peace talks.16 If the Yugoslav Tribunal had been the excuse for governmental inaction that some presume, then strict adherence to the tribunal’s mandate would have been accorded far more importance and deference in policy-making as a panacea for inaction. But Albright, Shattuck, and I had to struggle every step of the way to sustain enforcement of the Yugoslav Tribunal’s authority in deliberations over U.S. and U.N. policy in the Balkans.

Birth of the Yugoslav Tribunal

Before 1993, no war crimes tribunal had ever been established in the middle of the very armed conflict it was tasked to investigate for the commission of atrocity crimes. It was a novel experiment of dual-track justice and warfare, but a union that would become increasingly common with the advent of the permanent International Criminal Court. (Conflicts either raged on or smoldered in all the situations investigated by the permanent court in its early years.) The U.N. Security Council approved in late February 1993 the establishment of a tribunal under the most difficult circumstances, where brutal atrocities continued to bloody the soil and the lead perpetrators were men and women of enormous military and political power and hubris. They were not the vanquished, and the Security Council did not operate in any theater of victor’s justice.

The Yugoslav Tribunal arose when no one knew who would prevail militarily, what territory the various warring factions would control, how many more atrocities—with their deaths, maiming, devastated towns, and revolting detention centers—would unfold in the years ahead. At the tribunal’s inception, no one predicted that it would take seventeen months to agree upon a chief prosecutor for the tribunal, an essential step to any criminal law enterprise. In early 1993, a desperate hope to impose some measure of justice on the apocalypse unfolding in Bosnia and Croatia eclipsed doubts or uncertainties about the future.

The speed with which the Security Council initially authorized the Yugoslav Tribunal resulted primarily from the leadership of the United States and France within the council. The American lead relied almost exclusively on the new ambassador to the United Nations, Madeleine Albright. She seized the opportunity to make her mark quickly in the council on a subject that everyone could understand and which conveniently did not conflict with any other Washington priority for the new administration.

The notion of the Security Council using its power under the U.N. Charter to create an international criminal tribunal was novel because conventional theory argued for a treaty, entered into by governments, as the constitutional basis for establishing a criminal court that could prosecute and punish war criminals. Each ratifying nation would agree to the jurisdiction of such a tribunal and its power to render the ultimate sanction—to deprive individuals of their liberty. But time was not on the side of a multiyear endeavor to create a war crimes tribunal for the Balkans along the conventional path.

Within days of her confirmation as the U.S. permanent representative to the United Nations, Albright instructed me to begin moving the Washington bureaucracy toward a firm U.S. policy to establish a war crimes tribunal for the Balkans conflict. Much depended on whether the Security Council would take the decisive first step. Albright had set the stage for rapid action with a draft resolution recommending that the U.N. secretary-general prepare a report with a proposed statute for the tribunal, which would be acted on by subsequent resolution of the Security Council.

The early February surge of American support for a war crimes tribunal in the Balkans rested on several pillars: (1) that large numbers of Bosnians and Croatians were victims of systematic assaults on civilian populations; (2) that any tribunal created would neither be a victor’s tribunal nor entail an indictment of any collective body of people; and (3) that the focus would be prosecuting the leading individual perpetrators of the atrocity crimes. The tribunal would enforce international law against individuals only and not against governments or groups of people. The latter traditionally was the task of the Security Council—to enforce international law against governments. Nations, at least in theory, shoulder some responsibility to ensure that their own citizens comply with the fundamental norms not only of codified law but of fundamental human decency and of civilization itself.

The legacy of Nuremberg and its focus on individual criminal responsibility reasserted itself as we labored to build a new tribunal. There was little difficulty in determining what constitutes an atrocity crime ripe for prosecution by the tribunal, for by 1993 the general framework of such crimes—genocide, crimes against humanity, and war crimes—was embedded in international law to a degree that welcomed a new age of criminal prosecution. The inevitable nuances would have to be sorted out by the judges in their reasoned judgments.

Justice in the Pursuit of Peace

The threshold question remained ever present: how could the Security Council, which is charged under the U.N. Charter to address threats to international peace and security, invoke any legal authority to establish an international criminal court? It had never dared to do so in the past, even avoiding the issue with Pol Pot and Saddam Hussein after their rampages. The Security Council wages both peace and war through deployment of peacekeeping forces or multinational “peace enforcement” troops, such as in the Gulf War intervention of 1991. Nowhere in the U.N. Charter is there any explicit authority to build criminal tribunals.

But often overlooked is a potent provision of the Charter, Article 41, which empowers the council to use nonmilitary measures to respond to threats to international peace and security. The nonexhaustive list does not exclude judicial measures, so the Security Council translated its Article 41 power into creation of the Yugoslav Tribunal.

Some nations, including Mexico, Brazil, and China, challenged the autho...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Introduction Ambassador to Hell
• Part I
• Part II
• Part III
• Part IV
• Acknowledgments
• Appendix: Comparison of Modern War Crimes Tribunals
• Notes
• Further Reading
• List of Illustrations
• Index