Following is
a commentary on All the Missing Souls -
A personal history of the war crimes tribunals by David Scheffer, Princeton
University Press, 2012.
This memoir
is what it purports to be, that is an exhaustive in-house look at both the
domestic and international bureaucratic processes that led to the creation of
the various war crimes tribunals and ultimately the International Criminal
Court. The author David Scheffer was
front and center of the U.S. effort, first on the staff of Madeline Albright,
Ambassador to the United Nations, and then after she moved to the Department of
State as the first ambassador-at-large for War Crimes Issues. Sadly during his tenure there were a number
of conflicts - Bosnia. Rwanda, East Timor, Sierra Leone and Cambodia - where
atrocities were committed that required attention and justice. In this book Scheffer wades through all of
them noting specifically how justice mechanisms were established and how
effective they ultimately became.
My specific
interest was the Rwanda genocide, which, after the former Yugoslavia, was among
the first of the terrible events that affirmed the need for an international
justice mechanism. As Scheffer explains
the International Criminal Tribunal for Rwanda was hammered together piece by
piece as all such complex international negotiations are replete with give and
take, accommodation and steadfastness, largely by Security Council
members. Input and approval from the new
post-genocide government of Rwanda was actively solicited because how could a
tribunal function without access to the area where the crimes were committed
and support of the concerned government?
Yet the international parties believed that the tribunal had to be
located at a neutral site so as to preserve its impartiality and
independence. Although some of Rwanda’s
points were incorporated into the statute, a final stumbling block was the
death penalty. Rwanda demanded that the
penalty be included in the statute, but the non-capital punishment states (most
of Europe) could not accede to that proposition. So finally, Rwanda cast the only dissenting
vote against the establishment of the tribunal. Nonetheless, the International
Criminal Tribunal for Rwanda (ICTR) was established and Rwanda agreed to
cooperate with it and did so with varying degrees of enthusiasm over the next
fifteen years.
I was the
U.S. ambassador to Rwanda from 1996 to 1999 and on the ground and on point as
the U.S. government supported the ICTR with personnel and material. Chief among
my tasks was to provide broad political support for the tribunal in conversations
with senior government of Rwanda officials.
It was not always a comfortable position as I was whipsawed between the
two entities, each of which found the other wanting in many respects. For example, ICTR folks wanted greater
access, inside information, better, faster and more thorough responses from
government sources, etc. Rwanda
instinctively distrusted the United Nations, and all it entities, on account of
the organization’s ineffectiveness in dealing with the genocide when it
happened. Rwanda thought the tribunal
investigators did not sufficiently understand the genocide. They were
alternatively viewed as heavy-handed or ineffective, but always too slow. The fact that it took years just to begin
trials did not build confidence.
Additionally, Rwandans thought the ICTR was not appreciative of the
steps being taken by the government to render justice domestically. [i]
Some issues
such as the protection of witnesses displayed cultural gaps. ICTR wanted protection programs and
re-locations for folks who would testify fearing that they would be threatened
and intimidated by defendants’ supporters in their home areas. The government
rejected that approach saying that witnesses should be publicly praised and
applauded for stepping forward. Their
protection was the acknowledgement by the government and their neighbors that
they did the right thing. And so it
went. Interestingly enough the death
penalty issue went away in time. The
domestic genocide statute provided for capital punishment. Tens of thousands of prisoners were
categorized under that law as to the degree of their involvement and
responsibility for genocide. Thousands fell into the most heinous
category. Once the domestic court system
was resurrected in 1997, trials began.
By April 1998 several dozen persons were convicted and sentenced to die. The appeals court reviewed the sentences and
upheld them. So in late April 1998 22 genocidaires were publicly executed. As the government proclaimed at the time
justice was done and seen to be done by the populace. Those, however, were the last
executions. Even though many others were
sentenced to capital punishment, no further executions were carried out. About seven years later Rwanda abolished the
death penalty.
Returning to
Scheffer’s memoir. He was in Washington at the Department of State in April
1994 when the genocide occurred. He
describes in detail how the administration reacted to the events. There was confusion about what was really
happening, was it an expansion of civil war or what? Accurate intelligence was non-existent and
the embassy had been closed. The level of decision makers quickly evolved from
those who knew Africa to political appointees with minimal foreign policy
experience. Scheffer waltzes through all of this in useful detail as the U.S.
government decided how to respond, mostly by working through the Security
Council. He does debunk the notion that
the U.S. refused to call genocide genocide because of an unwillingness to act.
He points out that the genocide convention only requires a response, which is
not further defined, not a military intervention. Scheffer said that Department officials were using
the term genocide, with the Legal Advisor’s approval, long before it became an
unfortunate episode with the press spokesperson who only had poorly written
guidance to draw upon.
What is
missing from Scheffer’s account is any elucidation of contact between the
government of Belgium and the U.S. More
than a thousand Belgian troops constituted the firepower of UNAMIR, the UN
Peace Keeping force on the ground in Rwanda when the genocide began. On the second day of the genocide ten Belgian
soldiers, who constituted a protection detail for prime minister designate Agathe
Uwilingiyiama surrendered as ordered by their superior to genocidaire militants
who came to kill (and did) Madame Uwilingiyimana and her family. The soldiers were taken to the army camp
where they were murdered and mutilated.
As a result Belgium decided to withdraw its troops from UNAMIR and quit
Rwanda. While it is certainly a “what
if” question that can never be satisfactorily answered, if the thousand or so
well armed, well equipped competent Belgian troops had stayed in Rwanda and
made a stand, the genocide would certainly have taken a different turn. So why didn’t anyone, especially the United
States, pursue that option? Why did all
the courses of action considered - the ones that Scheffer discusses- not include remonstrating with Belgium? The answer apparently lies in a phone
conversation, probably on April 7th or 8th, between Belgian Foreign Minister
WIlly Claes and Secretary of State Warren Christopher. Claes entreated for no negative reaction to
Belgian’s decision to quit Rwanda. He played on the strength of Belgian
American ties, NATO cooperation and general friendship. Christopher, who may or may not have known
what was afoot in Rwanda, reportedly agreed unhesitatingly to honor Claes’
request. Apparently, word went out that
Belgium was off the table. Since by Sunday
April 9th Belgian troops were beginning to leave, the issue quickly became
moot.
Returning
again to the memoir. Some years later, in December 1997 Scheffer then sporting
his ambassador-at-large hat accompanied now Secretary Albright to Rwanda. It was a good visit characterized by frank
and supportive dialogue. Yet the country was not yet peaceful as insurgent
attacks still plagued the northern part of the nation. Genocidaire irregulars who had previously operated
out of the refugee camps in neighboring
Zaire continued to strike. The evening
before Albright departed a Hutu insurgent force assailed a Tutsi refugee camp
near Gisenyi in the north. These Tutsi
refugees were Zairians who had been forced out of their homes across the border
by the Rwandan Hutu genocidaires who had fled Rwanda, i.e. more ethnic
cleansing; first to force them away and second to attack their refuge. Several hundred died and hundreds more were
wounded as the camp was torched. I (and
most everyone else) interpreted this attack as a remonstration to Secretary
Albright’s visit. She immediately sent
Ambassador Scheffer back to Rwanda to investigate and to offer
condolences. David accurately describes
our trip to Mudende and the horror we encountered there. Although he does not mention me by name, I
appear in the photo taken at Mudende.[ii]
Scheffer’s
book is mostly about the creation and the early operation of the various
tribunals. I would be the first to agree
that the dispensation of justice by the international community through such
mechanisms has great merit. I do think
that even though the expense was great and the results of the ICTR fairly
meager, only about fifty people were ultimately tried, the exercise was
valuable. It was vital that the “big
fish,” i.e. the planners, organizers and instigators of the Rwanda genocide be
held to answer for their crimes. That
objective was achieved.
Rwandan
specifics aside, the value of Scheffer’s book is to detail the history of how
the world got to where it now is with respect to the delivery of justice for
those implicated in the most egregious crimes against humanity. Nobody knew more about that process than Ambassador
Scheffer as his memoir proves.
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