Wednesday, June 1, 2016

Accountability for Atrocities - The rise of the war crime tribunals

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.

[i]  For more information about the atmospherics in Kigali during these years see my book In the Aftermath of Genocide - The U.S. Role in Rwanda.
[ii]  See photos after page 218.

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