**David J. Scheffer\
Ambassador-at-Large for War Crimes Issues**

\"The Global Challenge of Establishing Accountability for Crimes Against
Humanity\"\
Remarks, Centre for Human Rights, University of Pretoria\
Pretoria, South Africa, August 22, 2000

I am very pleased and deeply honored to be with you today. I want to
thank the University of Pretoria and its Human Rights Centre,
particularly Dr. Christopher Haynes, for giving me the opportunity to
speak to you about the challenge of constructing credible institutions
of justice in the aftermath of genocide, war crimes, or crimes against
humanity. In this cradle of reform, South Africa, the international
crime of apartheid was defeated through the courageous will of the
people. In South Africa, you stared down the forces of evil, and you
won. As you well know, however, there are other titanic battles being
waged elsewhere in the world against the horrific crimes of our own
time. There are so many peoples across the globe who are battling their
own demons of death and destruction and who need our help.

For nearly 8 years under the leadership of President Clinton, I have had
the privilege of assisting with the creation of a number of mechanisms
of international criminal accountability and of developing means to
prevent future atrocities. Anyone involved in war crimes work knows how
frustrating, labor-intensive, and ultimately rewarding it can be. The
massacres that continue to this very day remind all of us of how we have
only begun this fight against war criminals. But it is a global
challenge that must be met with all of the energy we can muster if the
rule of law, and countless civilians, are to survive in the 21st
Century.

Throughout the world we are seeing fragile democracies struggling to
make the critical transition to becoming stable nations that are
welcomed into the international community. These struggles are often
filled with strife and conflict that see the rule of law give way to the
rule of force. Leaders use their might to exercise their will leaving
the population defenseless and vulnerable. The results are violations of
human rights, international norms, and laws. With these types of
conflicts prevailing, it is important to develop the mechanisms of
accountability that form the cornerstone of any credible democracy.

I am so pleased to be giving this speech in South Africa, a country
whose people bear the scars of brutality but who also give testimony to
the promise of reconciliation. This is a country whose leaders are
recognized for their unsurpassed moral authority on these questions.
South Africa is held up as a model for peaceful transitions to democracy
around the world.

I heard Archbishop Tutu address a group of foreign officials in
Washington, DC, several months ago, who were struggling to find their
own path to justice and reconciliation in the midst of internal
atrocities. He noted very poignantly how people used to say that South
Africa would never know peace, and that its history was too raw with the
wounds of violence. The message he carried to this audience from another
country facing the thorny issues that accompany a transition from
repressive rule to genuine democracy echoed Nelson Mandela\'s own
courageous example: If South Africa can do it, with the myriad of
problems it faced, so too can other countries. God Bless Desmond Tutu
and Nelson Mandela and the people of South Africa. Your message has
resonated with audiences all over the world.

I would like to talk today about how accountability mechanisms are being
constructed in several areas of the world: the former Yugoslavia,
Rwanda, Sierra Leone, Cambodia, Indonesia and East Timor, Burundi, and
Iraq. Each shares the common goal of seeking to reinforce the rule of
law under unique characteristics that demand unique approaches to
justice and reconciliation. I also want to discuss disturbing
developments in the Ethiopian/Eritrean conflict, initiatives to prevent
atrocities, and the permanent international criminal court.

First, however, I want to emphasize two points. Every society must find
its own path with respect to amnesties that have facilitated the
transition to peace, democracy, and the rule of law. Last week Chile
moved further down its own path when the Chilean supreme court lifted
General Pinochet\'s immunity in a move that Secretary of State Madeleine
Albright described as \"clearly historic for the rule of law and for the
promotion and protection of human rights in Chile. It has reaffirmed,\"
she said, \"that it is possible for a country to have a stable
democratic transition without sacrificing the principles of
accountability and justice.\"

Each amnesty requires rigorous examination, always keeping in mind that
the requirements of justice underpin the establishment of the rule of
law. There is no single path. Realism, pragmatism, and even humility are
essential in the implementation of any domestic amnesty. But no domestic
amnesty can immunize a perpetrator of egregious international crimes
from international justice.

The second issue I want to emphasize entails one particular development
in international criminal law that reflects how determined we must now
be never to reverse the tide of justice that has swept so many
societies, including South Africa\'s, in the last decade: rape.

The international crime of mass rape is becoming a standard feature in
international investigations and prosecutions of atrocities. Currently,
several defendants are on trial before the International Criminal
Tribunal for the former Yugoslavia for the systematic rape of
Bosnian-Muslim women in Foca, Bosnia, and Herzegovina, during the
Bosnian conflict of the early 1990\'s. The international prosecutor is
arguing before a panel of international judges that the widespread and
systematic rape and sexual enslavement of Muslim women constitutes a war
crime and crime against humanity.

Out of 33 prosecution witnesses in this case, 16 have been rape victims.
One female witness recently testified about the killing of her brother
by one of the defendants. On cross-examination, the defense counsel
asked her, \"How do you know that my client is the person who killed
your brother?\" The witness answered, \"Because he told me he killed my
brother while he was raping me.\" Another female witness, \"Witness
75,\" has testified that her mother was killed before her eyes, and that
over 20 soldiers raped her on her first day of detention in a make-shift
\"rape center.\" In this historic trial unfolding in The Hague, women
are courageously testifying about the hundreds of rapes and other abuses
committed in 1992 in Foca. They bear witness to the barbarism of the
genocide and crimes against humanity committed during the Balkans war
and why the need for justice and the search for the truth about what
happened is so indispensable to peace and reconciliation in the former
Yugoslavia. It was only 5 years ago that thousands of men were
slaughtered in the hills of Srebrenica. One of the leading alleged
perpetrators of those killings, General Krstic, is now on trial in The
Hague. The United States has provided significant support for that
trial.

These cases remind us that the war crimes agenda is more than the
pursuit of abstract goals and interests. It is about real people who are
real victims of real war criminals. The United States is determined that
remaining indicted fugitives such as Radovan Karadzic, Ratko Mladic, and
Slobodon Milosevic must be prosecuted in The Hague as soon as they
either voluntarily surrender, which they would be smart to do, or can be
apprehended.

Such crimes have not been confined to the former Yugoslavia. From Sierra
Leone to East Timor, women and children have been brutalized in times of
war and mass persecution. Here in South Africa, the Truth and
Reconciliation Commission heard compelling testimony from women who had
been raped and sexually assaulted in the context of the political
battles that were being fought here.

In Rwanda rape was also used as an instrument of war and persecution
during the genocide of 1994. Thousands of women were systematically
raped because they belonged to a different ethnic group. Countless
stories were told of women, after witnessing their entire family killed,
falling victim to acts of sexual violence that included rape,
mutilation, and forced nudity. The intent of the assailants was to
destroy the women and thus make them irrelevant in the cleansed society.
But in Rwanda, justice is having the last word. September 2 marks the
second anniversary of a landmark ruling of the International Criminal
Tribunal for Rwanda, based in Arusha, in the Akeyesu case that for the
first time found an individual guilty, before an international tribunal,
of the crime of genocide. Also for the first time the systematic rape of
women was ruled to be an act of genocide and a crime against humanity.
This precedent, made in Africa, set the judicial standard for the world
to follow.

These cases underscore the important work being done by the
International Criminal Tribunals for the former Yugoslavia and Rwanda. I
will be visiting Rwanda again on this trip to Africa and will announce a
modest but important voluntary contribution to the Rwanda War Crimes
Tribunal that we are making available to strengthen the Tribunal\'s
capability to track indicted fugitives and to better manage its complex
case load.

I also will be exploring in Rwanda how best we can further our support
for the Gacaca system of justice that the Government of Rwanda is
pursuing to handle more than 120,000 suspects of genocide who continue
to languish in Rwandan jails without trial 6 years following the
genocide. Although the United States is the largest financial
contributor to both the Yugoslav and Rwanda War Crimes Tribunals, we
have not lost sight of the enormous domestic judicial challenge that has
festered like an open wound in Rwandan society and that must be
addressed with the support of the international community.

The existing ad hoc tribunals tell only a part of the story about how
the international community is dealing with modern-day atrocities. The
ethnic conflicts and sheer power grabs that have swamped so many
societies in the latter part of the 20th century and into the new
millennium pose enormous challenges for accountability, for
reconciliation, and for prevention of further atrocities.

**Sierra Leone**

In Sierra Leone, the civilian population has been directly targeted by
contemptuous rebels. Thousands of civilians have been murdered, raped,
terrorized, or hideously mutilated. I have personally seen the children
whose limbs have been chopped off by drug-crazed child soldiers under
the command of individuals such as Foday Sankoh. The efforts of the
international community to bring peace to Sierra Leone suffered serious
setbacks when UN peacekeepers were detained and killed recently. Efforts
to promote disarmament, demobilization and rehabilitation were
obstructed.

The UN Security Council has condemned these actions in the strongest
possible terms and acted to strengthen the presence of UN forces in
Sierra Leone, which the United States as a Security Council member
strongly supports. Secretary Albright and U.S. Ambassador to the UN
Richard Holbrooke have been unwavering in their efforts to confront the
toughest challenges in Sierra Leone.

One of those challenges is justice. We have now begun the long march
toward accountability, which Sierra Leone desperately needs to eliminate
a culture of impunity that undermines all other efforts to bring peace,
stability, and reconciliation to that tortured land.

The United States was the prime mover behind UN Security Council
Resolution 1315, which was unanimously adopted on August 14th. The
resolution authorizes the Secretary General to enter into negotiations
with the Government of Sierra Leone to establish an independent special
court to bring the principal perpetrators of the most serious violations
of international humanitarian law in Sierra Leone to justice. Within a
few weeks, UN experts will recommend to the Security Council the steps
required to physically establish the special court so that it can begin
its work as quickly as possible.

This is the new challenge of judicial carpentry of our time: to build
unique courts, sometimes international, sometimes domestic, and
sometimes incorporating a hybrid formula, that respond to the unique
requirements of the situations that cry out for international criminal
accountability. There is no single construction plan. Anyone who
believes that he or she knows precisely what is required in any
particular society without experiencing and understanding the various
interests at stake is delusional. There are general principles embodied
in international law that guide any exercise in accountability for
genocide, war crimes, or crimes against humanity. The challenge is to
give effect to these principles taking into account the unique needs and
complexities of any given situation.

We also must not forget that the Lomé Peace Accords called for the
establishment of a Truth and Reconciliation Commission (TRC) in Sierra
Leone \-- an objective the Government of Sierra Leone earnestly seeks to
undertake. We anticipate that the work of the TRC will complement the
trials held before the independent special court for Sierra Leone. While
the special court will likely investigate the key leaders who
orchestrated the violence in that country, the vast majority of cases
involving foot soldiers probably will fall under the jurisdiction of the
TRC. There will be much that your own experience in South Africa can
bring to this essential exercise in Sierra Leone, and representatives of
your TRC have already visited Sierra Leone to offer their advice.

**Cambodia**

Some observers have compared the independent special court planned for
Sierra Leone to the \"Extraordinary Chambers\" that will be established
in Cambodia to investigate and prosecute the Khmer Rouge leaders
responsible for the atrocities of the Pol Pot era of 1975-1979. It is
true that the two mechanisms share a key common feature: they are
creative attempts by the international community to design unique
accountability mechanisms with both international and domestic
participation. But they should not be mistaken as identical enterprises.

In Cambodia, the Government and the United Nations have long been
involved in negotiations over a draft law that is currently under
consideration in the Cambodian National Assembly. The Clinton
Administration is proud to have contributed to the process, which also
included the courageous and successful efforts of Senator John Kerry of
Massachusetts to help break impasses in the negotiations. The new law
would establish \"Extraordinary Chambers\" within the Cambodian judicial
system that would provide a venue to bring senior Khmer Rouge leaders to
justice. The law will provide for both Cambodian and international
participation: judges, prosecutors, and staff. It is an unprecedented
exercise that will require a great deal of hard work to pull off, once
there is an agreement. But after two decades of drift in the fields of
accountability, the Cambodian people finally will be able to directly
confront the principal perpetrators of the mass killing of an estimated
1.7 million Cambodian civilians.

Both Sierra Leone and Cambodia will require voluntary funding to build
and sustain these new courts. We are exploring how the United States
Government can assist once the courts are formally established. Other
governments also should be exploring their own funding capabilities. But
I would hope that private sector contributions also could begin to flow
into these projects. We have not seen private donations to international
criminal courts to the extent that we had hoped. Two exceptions have
been IBM and the WestLaw Group which have generously assisted the UN
Tribunals. But much more will be required and expected in the years
ahead. Sierra Leone and Cambodia would be good places to start a
revolution of private financing for international justice that will have
the long-term benefit of helping build societies that can attract
foreign investment.

**Indonesia/East Timor**

In another part of the world, Indonesia, there are also elements of
domestic and international justice at work. Late last year, the UN Human
Rights Commission convened a special session on the situation in East
Timor. In addition to condemning the violence that ravaged East Timor
following the referendum there 1 year ago, the UN called for an
international commission of inquiry. It also called on the Government of
Indonesia to investigate and prosecute those responsible for the
atrocities associated with last year\'s referendum in East Timor.

The fact that the international community has given Indonesia the
opportunity to fulfill these obligations has been a major test of
Indonesia\'s own ability to investigate and prosecute its own. The
government-appointed commission of inquiry into violence in East Timor
produced a well-documented report, which has become the basis for
criminal investigations. The Indonesian Attorney General appointed a
64-member team to pursue criminal investigations with a view to issuing
indictments. The team wasted no time in bringing in several top generals
for questioning.

We are concerned about the implications of the recent adoption by the
Indonesian People\'s Consultative Assembly of a constitutional amendment
that includes the right of protection from prosecution for any act which
was not a crime when committed. We recognize that the universal concept
of \"ex post facto\" is an important due process right. But neither that
principle nor this amendment should prevent the anticipated Human Rights
Court in Indonesia from trying violations of international humanitarian
law embodied in treaties and customary law to which Indonesia is
unquestionably bound. We hope that Indonesian prosecutors will be able
to bring military commanders to account for the East Timor atrocities
and for egregious crimes against civilians committed elsewhere in
Indonesia, as the Indonesian authorities have indicated they are
prepared to do. We all must carefully scrutinize the next steps in
Indonesia to achieve justice for the victims of unwarranted military and
militia violence.

Hardliners, of course, will continue to do all they can to obstruct a
credible accountability process. In the event they are successful and
domestic accountability is no longer a viable option, the international
community must be prepared to exert its prerogative to see that the
principal perpetrators are brought to justice. We recognize the
importance of what the UN High Commissioner for Human Rights, Mary
Robinson, has said on this subject recently. If the Indonesians do not
address this challenge, then the pressure will grow to create an
international tribunal to do the job.

That being said, the UN Transitional Administration in East Timor
(UNTAET) is doing its part in documenting what transpired in the East
Timor violence. We hope that the legal authorities in East Timor and
Jakarta will continue to cooperate in this venture. UNTAET and the
Government of Indonesia have already signed a memorandum of
understanding that provides a framework for the sharing of information
and might even allow for joint investigations. There is certainly enough
work to go around to avoid unnecessary duplication of effort and
competition for suspects and resources. And the courts established by
UNTAET may, in light of the recent developments in Jakarta, have to
become the most immediate and primary vehicle for justice for East
Timor. We will spare no effort in strengthening the rule of law in East
Timor and in Indonesia, where criminal violence against large numbers of
civilians in the Moluccas, in Aceh, and in Irian Jaya must not go
unanswered.

**Burundi**

The atrocities experienced by the people of Burundi remain one of the
toughest challenges in the carpenter\'s shop for judicial
accountability. Nelson Mandela has brilliantly led negotiations for a
peace agreement in Burundi. The challenge of peace will also be a
challenge for justice in Arusha on August 28th. With the help of Nelson
Mandela, the parties to the conflict in Burundi and the international
community will need to find a credible means to address the egregious
crimes that have brought such death and mayhem to the civilians of
Burundi. In Burundi as well, the crime of rape has been a common feature
of military operations. The women of Burundi have played a key role in
seeking peace and reconciliation, and the victims of rape deserve
justice.

**Iraq**

With respect to Iraq, the United States Government is determined to see
Saddam Hussein and his inner circle stripped of their power and brought
to justice. Saddam\'s regime has murdered hundreds of thousands of its
own citizens, frequently with poison gas. It continues to commit
numerous atrocities against the Kurds, the Turkomen of northern Iraq and
the Shia of the south. Political opponents of any kind are subject to
imprisonment, torture, and summary execution. The regime perpetrated war
crimes and crimes against humanity against the people of Iran and Kuwait
and used massive crimes against the environment as a political weapon.
During the Gulf War, Iraq fired 42 Scud missiles \-- indiscriminate
terror weapons \-- at population centers in Israel. This was an
egregious violation of the laws of war, given the Israel was a
non-belligerent.

The United States supports the creation of an international criminal
tribunal for Iraq, as was done for Rwanda and the former Yugoslavia.
Additionally, we are assisting various non-governmental organizations to
gather evidence for use in prosecution in foreign domestic courts if the
opportunity arises. Every day Saddam\'s list of crimes grows, as does
the need for accountability. This is a man and a regime who have
brutally and systematically committed war crimes and crimes against
humanity for years, are committing them now, and will continue
committing them until the international community finally says:
\"enough.\"

**Ethiopia and Eritrea**

We are witnessing in the Ethiopian/Eritrean conflict a sharp rise in
actions that appear to be war crimes. These include allegations of
Eritrea\'s mass expulsion through minefields of Ethiopian citizens and
deplorable treatment of prisoners of war in violation of the Geneva
Conventions of 1949 and Protocol II, which Eritrea has ratified. Alleged
Ethiopian military actions against Eritrean nationals in
Ethiopian-occupied Eritrea have included unwarranted bombings of
civilian settlements, mass rape, disappearances, and summary executions.
The United States has been pressing both Ethiopia and Eritrea to reverse
this egregious conduct. Today U.S. Ambassador Richard Bogosian is
intensifying our efforts in the region and we call upon other
governments to put maximum pressure on Asmara and Addis Ababa to comply
strictly with international humanitarian law. Ethiopia and Eritrea stand
on the brink of yet another international investigation of conduct that
is simply unacceptable in the 21st Century. They have the power either
to demonstrate their own resolve to comply with international law or
invite others to judge their leaders for individual responsibility for
criminal conduct.

**Atrocities Prevention**

An equal, if not more difficult challenge, is how to prevent atrocities
from occurring. This is a vexing issue that has occupied the attention
of the academic and non-governmental communities and produced extremely
helpful studies and projects that we all are benefiting from. We have
also undertaken within the Clinton Administration an ambitious effort to
prevent atrocities. Let no one assume that we pretend to be successful,
as atrocities are continuing at an alarming rate. The International
Rescue Committee\'s estimate of 1.7 million deaths in recent years
attributed to the conflict in the Democratic Republic of the Congo is a
sobering, if not frightful, reminder of how far we yet have to go. We
owe it to the innocent civilians to do our best to prevent further
bloodshed in that tortured land.

I head up the Atrocities Prevention Interagency Working Group in the
U.S. Government. It was created by President Clinton almost 2 years ago.
We recognize in the work of our group that there is indeed a lot of
information to draw upon \-- from NGO\'s, the media, UN relief groups,
and our own diplomatic sources of information. We have contracted with a
private group to collect and organize every morning the best information
from open sources, and we have benefited enormously from that group\'s
reporting to us.

Our objective is to get to policy-makers as quickly as possible not only
information about imminent atrocities, but also ideas of how to prevent
them from occurring. You would be surprised how difficult that exercise
is. But we are trying and I intend for the work of our group to expand
in coming years and to be further influenced by the companion work of
similar groups in other governments and in the private sector.

Last October we convened at the Holocaust Museum in Washington, DC, a
Conference for Coordinating Atrocity Prevention and Response where a
number of governments, including South Africa, and non-governmental
organizations met to explore feasible measures to enhance international
cooperation and coordinated efforts in the struggle against mass acts of
murder, terrorism, wanton violence, torture, or rape as a weapon of war
against civilian populations. The deliberate targeting of civilians,
especially children, was given special attention. We agreed upon a
Statement of Principles for International Cooperation to Prevent,
Ameliorate, or Prosecute Perpetrators of Atrocities that we are finally
in a position to make more broadly known. It is our common objective to
create an informal atrocities prevention and response network among
governments, international organizations, and non-governmental
organizations. The network will identify emerging trends and potential
responses and help coordinate policy options that will be raised to
appropriate governmental and institutional levels.

**International Criminal Court (ICC)**

Let me conclude with some views about the permanent international
criminal court. The United States long led the effort to create an
appropriate and effective permanent international criminal court and we
deeply engaged in the talks leading up to the Rome Treaty of July 1998.
I know. I have been there from the earliest days of the Clinton
Administration in 1993 and have led for several years the U.S.
delegation to the ICC talks. Our commitment to international justice has
been strong and our commitment to the negotiations for an international
criminal court second to no other government.

Following the Rome Treaty the United States led the UN negotiations for
the Elements of Crimes of the International Criminal Court. We drafted
the primary document and for nearly 2 years we were in the trenches with
South Africa and other governments to finish this work-engine document
of the Court. On June 30th of this year we were proud to join consensus
with other governments in adopting the Elements of Crimes. We also
participated actively in the Rules of Procedure and Evidence, an
essential document for the effective working of the Court. On June 30th
we joined consensus on the completion of that document.

We have a remaining fundamental difficulty with the Rome Treaty that we
sincerely wish to resolve so that, at a minimum, the United States can
be a good neighbor to the International Criminal Court regardless of
whether we achieve party status or not in the near future.

That fundamental difficulty is the exposure of our armed forces, which
are deployed by the hundreds of thousands around the world at the
request of governments and to ensure international peace and security,
to prosecution before the Court even before the United States becomes a
party to the Rome Treaty. The possibility that a U.S. soldier fighting
to halt genocide could be accused by the other side of war crimes and
brought before the Court, before we have even joined the Court, is
untenable to the American people. It is untenable because we are at a
vital crossroads in world history right now, when the resolve of the
international community to confront evil is being tested every day. In
any military action, we have to accept the possibility that things will
not go as planned; missiles might go off target, and human error could
result in unintended destruction. But fear of being accused of war
crimes for honest mistakes should not prevent us from acting. We are
sometimes criticized for not confronting that evil immediately, for
letting it fester too long until too many innocent civilians are
slaughtered by fearless, thuggish leaders of tyranny. We are determined
to confront the perpetrators of human misery, but we must do so
recognizing the risks and the necessary balance that must be struck
between our pursuit of international justice and our common quest to
achieve international peace and security and respond to humanitarian
calamities.

The United States is not shirking from prosecuting its own for
international crimes. We know our responsibilities and we are committed
to fulfilling them. We are currently negotiating a proposal that would
not amend the Rome Treaty, but would permit a procedure that still
requires a nation that is not yet a party to the treaty to act
responsibly and bring its own to justice. If a nation, whether a party
or not to the Rome Treaty, acts irresponsibly and wages massive crimes
against its own people or those of another nation, then we have no
interest in permitting such a nation to enjoy any special privilege; let
that nation\'s war criminals stand trial before the ICC. We want to
achieve the objectives of the Rome Treaty, and indeed to do so as a
non-party until such time as we can join the treaty.

But reason and common sense must prevail if we are to strike this
balance. Those who argue that the Clinton Administration is seeking to
oppose the Rome Treaty and destroy its objectives are deeply mistaken.
There is so much to gain by having the United States on board as a
partner to the International Criminal Court. It would be tragic if the
opportunity is lost to achieve that partnership. We are so close; it
would be a colossal mistake for purist notions about the Rome Treaty to
kill off the opportunity for the United States to become a true champion
of the Court and to provide it with the kind of assistance and
cooperation that it so clearly will need to be an effective engine for
international justice.

Thank you very much. I would be happy to take questions.