Feb/Mar 2012

The Rights Stuff

Notes from the embattled career of a pioneer in international justice

Marguerite Feitlowitz


“Isaiah prophesied, ‘And the loftiness of man shall be bowed down, and the haughtiness of man shall be made low.’ That prediction bore truth in my lifetime and on my watch.”

So writes David Scheffer, who was instrumental in creating the four separate UN war crimes tribunals, as well as the International Criminal Court, and who yet remains haunted by what was left undone, done too late, or accomplished incompletely.

From 1993 to 1997, Scheffer was senior adviser and counsel to UN ambassador Madeleine Albright; from 1997 to 2001, he was the first ambassador-at-large for war crimes issues, appointed by President Clinton and reporting to Albright, who by then had become secretary of state. His anguished preoccupation with “all the missing souls” attaches not only to the maimed, the massacred, and the missing, but also to the compromised and conflicted spirits of the officials charged with leading the so-called civilized world.

As Scheffer recounts, he spent many contentious meetings with the administration, the State Department, the CIA, the Pentagon, and representatives of foreign governments trying—and, in his view, ultimately failing—to improve conditions for the desperate refugees he had interviewed, and the makeshift hospitals he had visited. He writes that he could not shake the sense that he was betraying the human remains, charred buildings, and eviscerated towns he had seen, and inwardly swore, “I owe the victims and their families my soul.”

Scheffer argues that even the best- intentioned efforts to confront human rights atrocities on his watch fell repeatedly short. And the litany of reasons behind such failures is all too human, in his telling: conventional responses to unconventional problems; ignorance about the afflicted regions (chiefly the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia); misapprehension about realities on the ground; conflicting readings of international treaties and conventions. There were also the familiar political factors that convulsed Washington in the ’90s: interagency turf wars, impeachment dramas, battles over declassification and intelligence sharing, and the Pentagon’s resistance to what it called “mission creep”—the conflation of peacekeeping with arrests of indictees.

In Bosnia, for example, each district had a particular peacekeeping force; could US troops make arrests in the French sector, and vice versa? The rules of the different militaries weren’t necessarily congruent. Cease-fires and peace negotiations had sometimes to be negotiated with the very men who had loosed such horrors on their people— Serbian leader Slobodan Milošević, for instance, prior to his indictment.

Scheffer is intensely concerned with nomenclature, and demonstrates that the failure to use proper terms can have deadly consequences. He cites Newsday reporter Roy Gutman, who, in August 1992, was the first journalist to report on Serbian “death camps”; Gutman’s bold yet rigorous use of the term transformed the way that Western observers analyzed the carnage in the Balkans. Gutman’s explicit language animated human rights and relief organizations, and undeniably saved lives, in Bosnia, in Serbia, and three years later in Kosovo.

Yet such simple lessons of syntax didn’t always translate across national borders. As Scheffer reports, in the case of Rwanda, government officials in distant conference rooms carried out prolonged debates over whether the targeted mass killings of Tutsis by Hutus—at an average of eight thousand a day from April to early August 1994—constituted “genocide.”

Why the hesitation? According to the Convention on the Prevention and Punishment of the Crime of Genocide, if there is such a finding, then the signatories are obliged to intervene to stop the bloodshed. Such interventions may be inconvenient, and place political leaders directly at odds with more immediate political, military, and diplomatic undertakings. And so, as Scheffer recounts, the language was sliced and diced—“acts of genocide,” “appearance of genocide”—to sound the alarm and register moral outrage, but without incurring the immediate obligation to act. He calls these machinations a “terminological charade,” and reports that he tried unsuccessfully to bring them to a halt.

Albright and Clinton later apologized for their vacillation. “We—the international community—should have been more active in the early stages of the atrocities . . . called them what they were—genocide,” Albright stated in late 1997. In 1998, Clinton, the first US president ever to visit Rwanda, addressed a crowd in Kigali:

It may seem strange to you here, especially the many of you who lost members of your family, but all over the world there were people like me sitting in offices, day after day after day, who did not fully appreciate the depth and the speed with which you were being engulfed by this unimaginable terror. . . . We did not act quickly enough. . . . We should not have allowed the refugee camps to become safe haven for the killers. We did not immediately call these crimes by their rightful name: genocide.

On this issue, Scheffer’s bosses finally caught up with him—albeit long after the point when the terminological distinction would have produced a meaningful, lifesaving difference on the ground. Scheffer proposes the term “atrocity crimes” in order to produce quicker interventions in future crises of mass killing that still may fall technically short of the legal threshold of intentionality at high levels.

As I write, Scheffer’s “paradox of law and war” is much in the news: Debating in South Carolina on November 12, the majority of Republican presidential candidates reiterated that waterboarding was not torture, and that “enhanced interrogation techniques” were integral to our self-defense. Five days later, in Arusha, the UN International Criminal Tribunal for Rwanda convicted former Kivumu mayor Grégoire Ndahimana, one of the most-wanted suspects for the 1994 genocide and crimes against humanity.

Scheffer had visited the church where two thousand Tutsis had taken refuge, only to be slaughtered by Ndahimana’s local Hutu police, who bulldozed the teeming house of worship. A photograph of Scheffer reaching out to straighten one of the fragile wooden crosses that mark the spot was published in the New York Times, on September 22, 1997. Scheffer’s loyalty to the cause was much appreciated in the international human rights community—but his bosses upbraided him for deflecting attention from the president at a moment when other issues were more immediate. Withal, the United States provided crucial intelligence (at times with less fanfare than other nations), expertise, troops, and treasure to the ad hoc tribunals.

Scheffer provides an almost dizzying amount of information. Because we follow him through grinding days, a sense of tunnel vision can at times set in. However, he writes clearly and at times grippingly, with especially strong accounts of the horrors wrought in Rwanda and Sierra Leone.

In one especially riveting chapter, he narrates the drama surrounding the extradition of Elizaphan Ntakirutimana, a pastor from Rwanda who was living and preaching in Laredo, Texas, when the UN International Criminal Tribunal for Rwanda indicted him on June 20, 1996, for a host of atrocity crimes, including genocide. Ntakirutimana had legally obtained a visa and then a green card, since, when he entered the United States in 1994, there was no requirement that a visa applicant disclose prior participation in genocide. (The only exception at the time was for visa applicants implicated in the Nazi genocide.) The esteemed (but wrong-thinking) Ramsey Clark defended Ntakirutimana, who lived through several levels of prosecution and appeals, until on January 24, 2000, the Supreme Court declined to hear his case and the pastor was transferred to the Rwanda tribunal in Arusha. There, at last, he was convicted of aiding and abetting genocide and other atrocity crimes. He served ten years and died shortly after being released. In the wake of the Ntakirutimana case, Scheffer, ever dogged, eventually won a revision in the federal law governing disclosures on visa applications.

One of Scheffer’s lonelier battles was the effort to secure US ratification of the Rome Statute of 1998, establishing the International Criminal Court (ICC) in The Hague. North Carolina senator Jesse Helms, who then chaired the Senate’s Foreign Relations Committee, was waging his own war against Scheffer in particular and against the underpinnings of the ICC in general, arguing that the whole enterprise was a threat to American sovereignty. The Pentagon and other officials sought to protect US troops from future indictments under the authority of the ICC (whose charge is restricted to war crimes, crimes against humanity, and genocide), since America’s forces in a peacekeeping mission would outnumber the similar contingents under any other nation’s flag. US military officials argued that American troops could be unjustly fingered by the hostile factions they faced on the ground. But lost in the heat of argument were the actual provisions of the ICC Statute, which stipulated that trials would be held in The Hague only when the nation implicated in the crimes in question was unable or unwilling to undertake the prosecution.

In short, the specter of US soldiers being hauled off for trial in a foreign land was unwarranted—even as the anxiety that American leaders felt over such a prospect was also understandable. This broader political dynamic left Scheffer—who represented the United States during the statute meetings in Rome, in the blazing summer of 1998—in the agonizing position of having to argue against his own convictions on behalf of the government he served. The statute passed with a vote of 120 delegations in favor, 7 opposed, and 21 abstaining. Scheffer endured Helms’s contempt, the sad chagrin of his European counterparts, and an insincere “congratulatory” slap on the back from the Pentagon. On the last day it was open for signature, Clinton was finally persuaded to sign on to the ICC Statute. In a driving snowstorm, Scheffer got himself from Washington to Manhattan to sign the document. There is a photograph of the moment: Scheffer, sitting alone at a desk in a book-lined conference room at the United Nations, a single aide at his elbow, one cameraman recording the act.

Toward the end of this valuable book, Scheffer reminds us that the principle of international adjudication of war-related crimes against humanity is in fact no foreign aberration. Indeed, he notes that important sources of international humanitarian law can be traced back to Instructions for the Government of Armies of the United States in the Field, issued on April 24, 1863. Developed by Union troops but used even by the Confederacy, this was the first codification of rules for land warfare, and served as a model for other nations and for early versions of the Geneva conventions.

Scheffer—together with many other advocates in the human rights community—is disappointed that President Obama has yet to fully endorse the ICC. Still, there is no turning back. The Hague’s ad hoc tribunals have fielded testimony from thousands of witnesses who would otherwise have remained “invisible” victims; the law and its languages have been refined to codify unprecedented crimes; and unprecedented judgments have been rendered. And that all means, in turn, that the perpetrators of atrocities have very powerful reasons to be afraid—not of vengeance, but of justice.

Marguerite Feitlowitz is the author of A Lexicon of Terror: Argentina and the Legacies of Torture (Oxford University Press, 1999), a new edition of which appeared in 2011. She teaches literature at Bennington College.

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