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Who is a War Criminal?

August 30, 2001 at 12:00 AM EDT

RAY SUAREZ: We get four views now. David Scheffer served as U.S. Ambassador at Large for War Crimes during the Clinton administration. He’s now a senior fellow at the U.S. Institute of Peace. Alfred Rubin is a distinguished Professor of International Law at Tufts University’s Fletcher School of Law and Diplomacy. Diane Orentlicher is a Professor of International Law and director of the War Crimes Research Office at American University’s Washington College of Law. And Fred Hiatt is editorial page editor and columnist at The Washington Post.

David Scheffer, quite simply, who is a war criminal? And who has the standing, the authority to say so?

DAVID SCHEFFER: Well, Ray, in theory, anyone is a war criminal, from the highest level official to the lowest level foot soldier, or even village occupant who tends to engage in acts of genocide or crimes against humanity or war crimes. So I don’t think it’s really a question of who is a war criminal. Anyone could actually be a war criminal.

The real question is: Who decides how to pursue any particular individual along that spectrum for purposes of prosecution for the commission of crimes? And that’s a very, very complex puzzle in international law. We have found it actually much easier to pursue the lower level individuals, both at the domestic level and even sometimes at the international level, than we have the highest-level officials.

But that process is beginning to evolve, it’s beginning to iron itself out. But I think, as this discussion will probably demonstrate, there are many complexities and problems that flow from that.

RAY SUAREZ: Alfred Rubin, you just heard what Ambassador Scheffer had to say. Would you say that there are some exceptions to his theory, perhaps heads of state or people who are victors, rather than the vanquished after a war?

ALFRED RUBIN: Well, I would object or– not object, but I would have several reservations on what he says. First of all, who has defined war crimes? Kelly was charged in the United States with violation of the Uniform Code of Military Justice. It’s not an international war crime, and I think we would have severely objected if any other state had stepped in. There is no situation historically, in which a neutral state has actually stepped in to try somebody’s alleged war crimes.

The allegations that there is an international law of war crimes, therefore, seems to me to be based on the selection of precedents that don’t really pass muster. Secondly is the question of jurisdiction. In the case of Milosevic, there is an international tribunal, to which Yugoslavia has agreed in the Dayton Accords, but who are we to interpret those accords in the absence of Yugoslav interpretation?

Or is this a tribunal merely set up to handle Yugoslav failed politicians and get rid of them for Yugoslavia? There are a number of alternatives available that are not being explored, and I wish they were being explored.

RAY SUAREZ: Diane Orentlicher, who has the authority to make these determinations about guilt and innocence?

DIANE ORENTLICHER: Well, if I could say there are really two separate questions: Who defines the law of war crimes? And with respect to Professor Rubin, I think there is much further development of international law in this area than his answer may have suggested.

There are international conventions, very carefully drafted, for the past half century, defining international war crimes. The hard question is: Who enforces them? And I think we all would agree that ideally the countries where the crimes occurred ought to punish them. That’s an ideal system. That’s a system that’s guaranteed to protect human rights and also to respect state sovereignty.

The real hard question is: What do you do when that country has fallen down on the job? And by definition, when we’re talking about very serious atrocities committed on a wide scale, there’s been a failure of justice. And that’s where some kind of international response may be warranted. And that’s what’s really captured by the vow, “never again, we won’t stand idly by and say ‘this doesn’t concern us ‘,” if a country is tolerating serious abuses wholesale.

RAY SUAREZ: Well, Fred Hiatt, there have been several attempts to answer that question, who gets to determine who’s a war criminal. Are you worried by what some of the answers have been?

FRED HIATT: I am a little worried — not by the answers so far. I don’t have any question in my own mind that Milosevic is a war criminal, and I hope the prosecutors do a good job and he gets the punishment he deserves. But I think the process is always going to be somewhat political and it has to be somewhat political.

If you look at the international law that’s developing, you know, I think it’s clear that Milosevic was responsible for acts of genocide or crimes against humanity, but you could make a case against NATO for what they did in the same war, too. And a lot of human rights organizations tried to make that case.

So you’re always… There’s always going to be the need for some discretion. My worry is that the international criminal court that’s coming into being with or without the United States, and as you said, it looks like without it–, won’t exercise that discretion in a way that I might find appropriate.

RAY SUAREZ: Alfred Rubin, just a few moments ago, you saw Slobodan Milosevic staring down his accusers in the court in The Hague. Does he have a point when he questions the legitimacy of that body to try him at all?

ALFRED RUBIN: He certainly does. The fact is that the tribunal was set up with his concurrence, but we can’t really interpret what he meant when he concurred in the matter. After all, the U.S. authority to determine international law is simply a matter of what used to be called auto interpretation. I would also like to point out that the many conventions that purport to… that argue to purport to define war crimes don’t do it at all.

I mean, you’ve got to read the conventions and read them carefully. What they do is authorize states to define war crimes, and very few states have actually done so. And when they’ve done so, they’ve done so in their Uniform Codes of Military Justice. It seems to me that the international community really has not defined these things properly.

People forget that Nuremberg was followed by Tokyo. The Tokyo tribunal had dissents to it. This is a highly selective process, and I really would rather be objective in this and hold back and just say, this is not the way to go.

RAY SUAREZ: But Professor Orentlicher suggests that perhaps the best place to start is the home country, and only when the home country falls down on the job step in. Could it be submitted that in the case of Yugoslavia, the Kostunica government moved too slowly to move against Milosevic?

ALFRED RUBIN: Who determines when the home country is falling down on the job? Is it the supposed international community, meaning us? But they disagree. What about the U.S. falling down on the job with regard to trying Kissinger, if in fact this is a correct fact?

Who determines that a country is falling down on the job? I have real problems with this entire notion that somehow the international community speaks, especially when I remember that the international community is composed of about a fifth of Chinese, about a fifth of Indians under the Vajpayee government, and about a fifth under various theocratic governments.

I have a lot of difficulty with the notion that we in the West can determine who’s falling down on the job and what is a war crime and we can set up the tribunal. And then we don’t try ourselves by the same rules.

RAY SUAREZ: Well, Professor, go ahead.

DIANE ORENTLICHER: Well, I’d like to respond to a number of points. First of all, I’d like to just correct one perhaps misimpression. The international conventions to which I referred earlier do contemplate international enforcement. They do not simply leave it to states to handle this themselves. The Geneva Conventions of 1949, the most important source of war crimes legislation, mandates all states to prosecute war crimes, serious war crimes, for it to prosecute someone.

ALFRED RUBIN: Has there ever been prosecution?

DIANE ORENTLICHER: There have been prosecutions. It was a set of conventions that lay largely dormant for decades, and that was considered the failure, not overzealous or politically motivated prosecutions, but failure to prosecute serious war crimes. But getting back to the court issue that Professor Rubin has raised, I think it is a very serious and legitimate question.

We can agree on ground rules for when other states should intervene, and I think the idea is basically pretty simple; it’s what I indicated before. If the home country where the crimes occurred completely fails falls down on the job, fails to protect its own citizens, leaves them at the mercy of dictators like a Milosevic, I don’t want to stand by and say, “well, you know, we can’t quite figure this out, so we’d better not get involved.” I want to get in there and figure out how to do this right.

It should also be said that, so far, I can’t think of many cases where there have been prosecutions or any, frankly, where there have been prosecutions that were an abuse of discretion. But we are starting to hear rumblings and calls for prosecutions that make us worry about this. And I do think that we ought to take that very seriously. I think we need to come up with some ground rules, and I think we need to come with some mechanisms to supervise the international courts themselves.

RAY SUAREZ: Ambassador Scheffer, is that easily done?

DAVID SCHEFFER: Well, I think Diane has a good point there. You know, we’re facing a paradox as the years go by now whereby national judicial systems are increasingly empowering themselves to prosecute these types of international crimes. Remember, these are crimes that, quite frankly, are not just of interest to the country in which they occurred, or the nationality of the perpetrator; these are crimes that affect the international community at large and therefore, the international community, as represented in the United Nations, for example, has a very deep interest in these crimes and, frankly, has a stake in their prosecution.

Let me remind you that the two ad hoc tribunals, the one Mr. Milosevic stands before and the one in Tanzania regarding the 1994 Rwanda genocide, were adopted by the U.N. Security Council, which is an international body, and they are supported every year financially by the general assembly of the United Nations. So there’s a tremendous amount of international consensus about those two courts. But that paradox, which I began to talk about is, as national jurisdictions begin to increasingly empower themselves to prosecute these crimes, putting it into their national laws, for example, they’re going to run up against the international criminal court, which will be established fairly soon.

I would suggest that this possible chaos which is going to emerge in the international system in fact will fall in favor of the international criminal court, as the arbiter in the sense that, if the court can mature responsibly, it can be the vehicle by which the most serious and the most provocative crimes by the highest level officials can in fact be adjudicated…

RAY SUAREZ: Let me stop you there and go to Fred Hiatt on the possibilities of that up actually happening.

FRED HIATT: Well, it’s a good question. I mean I think Diane’s sort of criterion of using a court only when a country isn’t doing its own job has a lot merit. When you look at the world today, you could certainly argue that President Putin is responsible for crimes in Chechnya as serious and horrific as what Milosevic was responsible for in Kosovo.

Yet he’s going to be a guest at President Bush’s ranch in a couple of months, and Milosevic is in dock. So there’s a selectivity, and I think there’s always likely to be a selectivity, given global politics. I wouldn’t say that’s a reason not to do it. I’d rather have some of them than none of them, but I think we have to recognize that, when Milosevic stands up and says, “There’s inconsistency here,” there’s some truth to that.

The only other thing I’d say to Ambassador Scheffer is that, if you set up this international court as sort of the ultimate arbiter that will step in on the serious cases, there’s a danger that you are interfering with national sovereignty, and especially in countries that are democracies, that’s a serious infringement. It’s sort of prosecutors without the kind of democratic checks that we put on prosecutors in our own country.

RAY SUAREZ: Guests, thank you all. I’m sorry; I can’t get that response from the Ambassador. Thanks for being with us.