ICTY between past and the future

● Dr David Scheffer

- Professor of Law at Northwestern University

  and former US Ambassador at Large for War Crimes Issues


ICTY between past and the future


            Thank you for that kind introduction.  I particularly want to thank the Association of victims and witnesses of genocide and the Mother’s Action of the Srebrenica Žepa Enclave and their leaders here today for organizing this significant international conference, as well as the patrons and supporters who have made this possible.  Amir Ahmic has been invaluable in assisting with my participation and with my interest in honoring the victims at some of the atrocity sights and memorials and cemeteries that I have not had the opportunity to visit in years past.  Indeed, yesterday I visited for the first time the memorial on Mt. Igman to my three colleagues in the U.S. Government—Robert Frasure, Joseph Kruzel, and Drew Nelson—as well as a French soldier, who were killed there in August 1995 on a mission with Richard Holbrooke and Wesley Clark to find the pathway leading ultimately to Dayton.  Over the coming days, I will pay my respects to the victims of the Srebrenica genocide, of the Ahmići massacre, of those buried in the Tomašica mass grave, the cultural destruction in Banja Luka, and other sites.  Here in Sarajevo, I look forward to visiting the gloriously rebuilt library, which I recall vividly as a devastated structure during the war.  I recall well what this city looked like during that period and for years thereafter as you struggled to recover. And I will visit the War Crimes Chamber of the Court of Bosnia and Herzegovina, the continuing work of which I regard as extremely important and worthy of the support of the international community.  Your sacrifices through the last quarter century deserve our deepest respect and an unending quest for justice. 


            I want to recognize the presence here today of tribunal officials, including distinguished judges, prosecutors, investigators, and other tribunal staff as well as national officials.  Needless to say, I am somewhat humbled by the caliber of those surrounding me and deeply appreciate the invitation to address this audience here in Sarajevo, where you have suffered so tragically and yet, with courage and remarkable hope, have risen to embrace the future.  


            Today we largely reflect upon the past, not for the purpose of gratuitously casting blame, although there are so many to hold accountable for atrocity crimes that have challenged and bewildered our understanding of humanity, but in order to affirm our shared commitment to the rule of law.  There is no returning to the days, only two decades ago, when many in this country and neighboring countries knelt on an altar of impunity and unleashed hell on earth.  The days of impunity have ended.  Some may indeed escape justice, but not because of any principle of impunity for which they might claim to be entitled, whether it be cloaked with religion or revenge or historical destiny or some megalomaniac’s view of his own indispensability for your welfare or your death.


            I will focus on three issues today.  They concern the authority of the U.N. Security Council in matters of justice and peace, the context within which atrocity crimes—by which I mean genocide, crimes against humanity, and serious war crimes—take place, and the lessons we can draw from the genocide that at least has been judicially confirmed at Srebrenica.


            First, when the Clinton Administration began its eight years of executive power in late January 1993 and my boss, Dr. Madeleine Albright, was sworn in as America’s ambassador to the United Nations, Bosnia and Herzegovina had endured the brutal atrocity crimes of perhaps one of the worst years in your modern history, namely, 1992.    Ambassador Albright, who had lived as a teenage girl in Belgrade when her father was Czech ambassador there, was determined to launch a judicial means of accountability for what had occurred, as well as send a signal of justice that might, just might, deter some criminal conduct by political and military leaders in the Balkans.  There were conventional proposals—domestic trials or a court established by international treaty—that were unrealistic give the wartime circumstances if justice were to be pursued rapidly. 


            We turned to the U.N. Security Council, which had never before used its U.N. Charter powers to create a war crimes tribunal.  Indeed, nothing in the U.N. Charter explicitly empowered the Council to establish such a tribunal.  But Ambassador Albright, as well as Secretary of State Warren Christopher and his legal advisers in the State Department, recognized both the urgency of the situation following the atrocities that had already occurred, and the simple fact that the U.N. Charter, particularly Article 41, provided authority to the Security Council to take non-military measures to maintain and restore international peace and security.   We pondered, why would establishing a judicial tribunal not constitute a valid non-military measure, particularly if its creation during an armed conflict could have an impact on achieving peace and might significantly influence the maintenance of peace once the fighting ends?


            Joined by some of her colleagues, Ambassador Albright took the bold step of activating the Security Council in the interests of international criminal justice as a means of seeking peace in this country and elsewhere in the former Yugoslavia.   She instructed me to begin moving the Washington bureaucracy toward a firm U.S. policy to establish a war crimes tribunal for the Balkans conflict.  This early February 1993 surge of American support for such a tribunal rested on several pillars: (1) that large numbers of Bosnians and Croatians were victims of systematic assaults on civilian populations; (2) that any tribunal created would neither be a victor’s tribunal nor entail an indictment of any collective body of people; and (3) that the focus would be prosecuting the leading individual perpetrators of the atrocity crimes.  The tribunal would enforce international law against individuals only and not against governments or groups of people.  The latter traditionally was the task of the Security Council or the International Court of Justice—to enforce international law against governments.  Nations, at least in theory, should exercise some responsibility to ensure that their own citizens comply with the fundamental norms not only of codified law but also of fundamental human decency and of civilization itself.  The legacy of Nuremberg and its focus on individual criminal responsibility reasserted itself as we labored to build a new tribunal.


            Some governments objected and claimed such an initiative was not only unprecedented, but also outside the Council’s legal authority.   The United States and others argued otherwise and we prevailed.  Every so often bold steps must be taken for the sake of humanity and one of those steps occurred on February 22, 1993, with adoption of Security Council Resolution 808 and then, three months later, Resolution 827 that approved the constitutional means by which the International Criminal Tribunal for the former Yugoslavia, or the Yugoslav Tribunal, would operate.   Thereafter, while there were great difficulties to overcome in activating the work of the Yugoslav Tribunal and ensuring that it would meet the mandate set forth by the Security Council in creating it, this initial action by the Council proved decisive, historic, and visionary. 


            By the following year, 1994, the Security Council used its Charter authority to create the International Criminal Tribunal for Rwanda.  Thereafter “tribunal fatigue“ in New York stymied several efforts to replicate Security Council engagement in creating international criminal tribunals for Sierra Leone, Cambodia, Iraq, Burundi, Lebanon, and other situations.  But the earlier exercises for the former Yugoslavia and for Rwanda placed the Security Council squarely within the jurisdiction of international criminal justice.  That influenced mightily the negotiations for the creation of the International Criminal Court and the power ultimately set forth in the Rome Statute whereby the Security Council has a key referral and deferral power in the investigation and prosecution of atrocity crimes. 


            But over the years the Security Council often failed to take the decisive actions necessary to enforce cooperation by regional governments with the Yugoslav Tribunal on provision of evidence and the capture of indicted fugitives.  Today we do not see the same vision for justice in the Security Council as we experienced back in 1993 and 1994.  The Council has had a very poor record by failing to follow through with assistance to the International Criminal Court concerning the Council’s two referrals—Darfur and Libya—for which that court seeks to arrest and prosecute indicted fugitives, as well as complete critical investigations of crime scenes and interview witnesses on unfriendly territory.  The Council has shamelessly refused to unleash U.N. funding for the Court’s investigative work on matters it, the Council, has referred.  Indeed, the prosecutor of the International Criminal Court, Fatou Bensouda, has been compelled to “hibernate” the Darfur investigations and prosecutions because of Khartoum’s resistance and the Council’s timidity in doing anything about it.   Further, the Security Council has failed to refer atrocity crimes situations in either Syria or North Korea to the International Criminal Court because of resistance from two permanent members—Russia and China.  This, despite the fact that other major powers and non-permanent members of the Council are willing to press ahead on such referrals. 


            To its credit, however, the Security Council has resisted pressures, particularly by the African Union, to use the authority codified in the Rome Statute to defer investigations and prosecutions in Kenya, Libya, Darfur, and perhaps elsewhere in Africa.  


            So while the Security Council can be a very powerful instrument of international justice, the Council members’ political will to undertake some of its unique responsibilities has weakened.  The rhetoric in Security Council resolutions and presidential statements remains supportive of accountability, but the Council rarely fortifies its words with action.  Bosnia and Herzegovina suffered many years of prevarication, uninspired peacekeeping that shielded perpetrators, an unwillingness by the Security Council to take necessary measures to arrest indicted fugitives, and failed peace initiatives pressed forward by Council members and others.  You, the people of Bosnia and Herzegovina, have the moral authority to remind the Security Council that justice is more than a rhetorical exercise, that the Council must follow through to ensure the cooperation of governments and to facilitate investigations and the capture of indicted fugitives, and that despite all the difficulties and frustrations, in the end the rendering of justice in the face of atrocity crimes is indispensable to international peace and security in the modern world and remains the common duty of us all.


            My second point today concerns the legacy of the Yugoslav Tribunal, particularly its jurisprudence.  The remarkable fact that frankly no one predicted in 1993 is that the Yugoslav Tribunal stands on the precipice of accomplishing its mandate.  There are still several trials to complete and appeals judgments to render, and trial delays due in no small measure to defendants’ health issues and the discovery of new evidence.   But we can safely confirm that the tribunal will relatively soon achieve its primary goals.  Reasoned observers have criticized and will disagree with some of the final judgments, but the judicial process worked its will.   The evidence uncovering what actually happened poured forth in the courtrooms in The Hague for over 20 years.  That evidence will occupy historians, legal scholars, sociologists, and even novelists for decades as the countless narratives of what occurred in this country expand and deepen with research into the trial records, judgments, and archives of the tribunal. 


            One issue that lingers, however, is whether the Yugoslav Tribunal has adequately addressed the context within which atrocity crimes occurred.   One would think that the massive amounts of evidence presented in the courtroom, including what has been gleaned from four years of media reports during the conflict and the historical studies and memoirs that have relentlessly followed, would establish the context and unique character of the Balkans conflict.   In my view, a key question for any judge must always be answered:  how do mass atrocity crimes occur within the particular characteristics of the overall situation, or the overall conflict?  I am not speaking of an individual crime linked to an individual defendant, but scores or hundreds or thousands of crimes linked through complex associations of individual leaders and subordinates acting with a common purpose.  How do political and military leaders orchestrate atrocity crimes without appearing to do so?  How do they shield their intent and their methods of assistance?  How do they distance themselves, by geography or command structures, to deny responsibility?  Who inspires or liberates lower level perpetrators, perhaps hundreds of miles away, to commit these heinous crimes?  Are the atrocity crimes spontaneously erupting or does the defendant play a key role in unleashing what appears spontaneous or the revengeful zeal of the soldiers or militia in the field?   


            Are standards of conventional criminal law, particularly as they may relate to a time when technological means of communication and monitoring were undeveloped, apply to a modern situation where proximity to the crimes becomes practically irrelevant?   Where the perpetration of atrocity crimes against large numbers of victims, indeed against hundreds of thousands over a span of four years, occurs in order to advance state policy or the ideological objectives of a state’s or organization’s leaders?  How do we define mens rea and actus reus when one is examining the commission of atrocity crimes?  Is it precisely the same analysis as one would apply against a single individual for the commission of a common crime?  Is not knowledge that one’s actions are likely to aid in the commission of atrocities the very essence of leadership culpability in the realm of atrocity crimes, in the context of a nation torn asunder by perpetrators associated with organized military elements over months and years of illegal conduct?  At what point is a court narrowing its understanding of the context of the situation so profoundly that justice in fact is denied?  


            We can ask these questions more sharply now because the judicial record exists.  If someone is sitting in Belgrade, for example, and in fact as close to the source of ultimate power as possible, by what calculation is that individual not aware of information relating to the armed conflict and the atrocities?   By what calculation is proximity relevant to the analysis when the international media is covering the conflict and its associated atrocities and briefings are flowing into Belgrade offices?   And how is that calculation influenced by the frequency and duration of such information arriving over years of conflict such that only the most incompetent and naïve official would not understand the impact of his actions on the commission of atrocity crimes?   We need to ask ourselves those questions and recognize that proving the guilt of a high official who is smart enough to say or facilitate or order one thing but mean something quite different is an exploration of inference within the context of atrocities that judges are perfectly capable of undertaking.


            There is one presumption that in my view should gain greater currency in international criminal law, namely that if the media or official briefings report atrocities, even isolated atrocities within a particular locale or region, on a periodic basis over a sustained period of time, and the forces over which a political or military official directs, supplies, or commands are deployed in the thick of those atrocities, that top official should be presumptively on notice of those atrocities.  This is particularly true if that official is receiving briefings about what is occurring on the frontlines of the conflict, or even behind those frontlines in the detention camps and other crime scenes of a de facto occupation of territory, and fails to act to address the situation.  He or she cannot naively feign ignorance, or argue they are simply engaged in an armed conflict, and thus be exempted from responsibility.   The high-ranking official’s original intent may not have been to unleash such atrocities, and indeed may have been to simply direct or supply conventional armed forces in conventional warfare.  But when news reports scream out the realities of atrocities over a number of years, it is simply implausible to hold that leader, who has remained engaged throughout at the highest levels, immune from responsibility.  He or she must be assumed to know of that news—a presumption of news awareness, you might call it—and not plead that somehow one was oblivious to that information.  If one is in a leadership role, and this would be as true of the 1990s as of today, one should be presumed to know what is being reported by relevant media sources.  If a top official is orchestrating logistical support for troops engaged in atrocities, that official is no longer operating in some blissful world of lawful military engagement.  To argue that the evidence does not point directly to him, or that he cannot be proven to have demonstrated specific intent to commit or aid and abet the atrocity crimes, is to ignore the reality of modern warfare and of how atrocity crimes are easily integrated into hostilities. 


            Examine any armed conflict in the world over the last 20 years and civilians are the primary target of armed forces, militia, or rebels unschooled in or dismissive of the law of war, such that if news of atrocities against civilians is being reported in the media, then at a minimum one must assume there is a legal problem begging for attention.   The context should mean something, indeed a lot, in international criminal law.  What is going on within the realm of operations that might inform the leader’s judgment and his decisions?  The key question thus becomes whether the court fails to understand what must be logically inferred from year after year of facts on the ground of which leaders, no matter how distant they are from the battlefields or atrocity sites, no matter how detached they may appear to be when supplying a military force suspected of atrocity crimes, must have knowledge. Such leaders must risk accountability for what the armed force does over sustained periods of time where there has been no breakdown in communicating the facts, and indeed the media is reporting it diligently year after year. 


            My concern is that the legacy of the tribunal, something I care deeply about having been present at its creation, must not be to provide a roadmap to political and military leaders about how to avoid culpability for atrocity crimes that they so clearly know are occurring.  The legacy must not eliminate aiding and abetting as a mode of liability for the highest-ranking officials, and thus cast such liability into the domain only of the lowest-level perpetrators.  If the legacy is that the actus reus of aiding and abetting liability is the need for the prosecutor to prove the official’s specific direction of assisting or abetting the charged crimes, or to prove that the official was geographically close enough to the crime scenes to be aware of the criminal conduct under some presumption that close proximity in the modern world is as important as it might have been in the medieval world, then the Yugoslav Tribunal will have guided future perpetrators of atrocity crimes, at the highest levels of the state and of the military, on how to avoid liability.  They need only demonstrate that they were indeed supplying armed forces for armed conflict as if they lived in a bubble of no news, no briefings, no awareness or knowledge of what was being waged by those armed forces.  The context tells us otherwise; indeed common sense informs us otherwise. 


            No, that cannot be the legacy of the Yugoslav Tribunal.  There are already signs of hope that the final legacy will be quite different.  In January 2014 one of the Appeals Chamber panels of the Yugoslav Tribunal firmly held that specific direction is not an element of aiding and abetting liability in a case concerning the Kosovo atrocities and reaffirmed the longstanding requirement that the true test of actus reus of aiding and abetting is that it must be demonstrated that any act or omission substantially contributed to the continued commission of the atrocity crime. As for the mens rea requirement, awareness that one’s actions or omissions are likely to assist with the commission of atrocity crimes remains customary international law.  The Special Court for Sierra Leone and Extraordinary Chambers in the Courts of Cambodia also have so affirmed.  Nor has the Pre-Trial Chamber of the International Criminal Court embraced the specific direction standard for aiding and abetting; rather, it has required that the aider or abettor act with the purpose of facilitating commission of the crime, which can be achieved through the knowledge standard explicitly provided for under Article 30, the mens rea provision, of the Rome Statute.


            Opportunities still remain in the three Appeals Chamber judgments currently being deliberated and in the Trial Chamber and possibly Appeals Chamber judgments on the fates of Radovan Karadžić, Ratko Mladić, Goran Hadžić, and Vojislav Šešelj, to settle whether the Yugoslav Tribunal as an institution has correctly formulated this equation of facts and context.  We will discover whether, in the final analysis, practical realities as articulated through customary international law prevail about how criminal conduct can emanate from the highest reaches of power to devastate the lives of ordinary innocent civilians who are entitled to credible justice. 


            Finally, many will ask in coming days how the genocide of Srebrenica 20 years ago could have occurred.  I was in the policy-making rooms in Washington at the time and have written in my book, All the Missing Souls, about what we knew and when we knew it and how, in the aftermath, pressure built to reframe U.S. policy towards the Balkans conflict in ways that relatively soon led to the Dayton peace talks and the deployment of NATO forces in this nation.  No one in Washington, at least that I am aware of, foresaw or predicted the ultimate weapon of genocide that was unleashed on the Bosniak population of Srebrenica in July 1995.  We were concerned about and monitored whether the Bosnian Serb forces would assault Srebrenica and launch another ethnic cleansing campaign, this time on a U.N. safe area, but we were not prepared to quickly repel with military force an operation aimed at genocidal slaughters of men and boys north of Srebrenica once the town had been overrun.  Indeed, some of our focus had shifted to the security of Sarajevo in the days immediately prior to the Srebrenica genocide.   Even the long-planned but not yet deployed Rapid Reaction Force would have required at least 14 days to operationalize and deploy to Srebrenica, by which time the genocidal killing had occurred. 


            But those words do not comfort the families of the victims of Srebrenica and Žepa, so many of whom are with us today.  They can take some satisfaction in the work of the Yugoslav Tribunal, which has delivered several judgments, including the Krstić and recent Popovic and Tolimir Appeals Chamber judgments, confirming the genocide and holding Bosnian Serb military leaders accountable for the atrocity crimes at Srebrenica and Žepa.  The genocide at Srebrenica also figures prominently in the prosecution of Karadžić and Mladić.  Eight years ago the International Court of Justice, in a judgment that I criticized at the time as too narrowly formulated, nonetheless looked to the jurisprudence of the Yugoslav Tribunal to acknowledge that genocide took place at Srebrenica and that Serbia failed in its duty under the Genocide Convention to prevent the genocide.   That was an extremely important principle to affirm regarding the obligation to prevent genocide.


            I think of Srebrenica and how quickly ethnic cleansing transformed into genocide when I consider the fate of so many people in Syria and Iraq today, as they fall victim to the so-called Islamic State and its arrogant perpetration of atrocity crimes under a warped ideology and evil design reminiscent of much that occurred in this nation beginning 23 years ago.   Likewise, when the Syrian Government drops barrel bombs on civilian populations, or gases them, I ponder how we still have not learned the lesson of Srebrenica, Žepa, Sarajevo, indeed of the entire Balkans conflict.  That lesson is the Responsibility to Protect, enshrined by the U.N. General Assembly in 2005 but so woefully implemented since then.  Timing is everything, a maxim that should have guided the United Nations and major powers long before the Balkans conflict stretched into a multi-year tragedy. It remains true in present times, for every day lost to inaction  translates into hundreds if not thousands of lives cast into death spirals or the horror of rape, starvation, torture, persecution, forcible transfers, unprecedented refugee migrations, and disappearances.  All of that is occurring in Syria and Iraq today, with severe impacts on neighboring countries, and we doubtless will be commemorating those atrocities in coming years and decades.


            Genocide itself may be unfolding in Syria or Iraq.  The seeming acquiescence  in what the so-called Islamic State does to its victims reminds me of similar acquiescence for too long about what occurred in this country two decades ago.  Our response to today’s aggression and associated atrocities in Syria and Iraq remains partial in character; it is a response that relies on targeted bombing, on more training of local fighters, but still tolerates the continuation of atrocity crimes.  I suggest that the days of toleration must end. We need to formulate a new paradigm in international affairs, one that compels effective, timely, and significant multilateral responses directly aimed at lawless forces engaged in atrocity crimes and bold enough to act swiftly with lawful justification even in the absence of Security Council authorization thwarted by the veto power.  There is no political philosophy or theory of international law worthy of emulating if it tolerates the commission of atrocity crimes against civilian populations over sustained periods of time.


I do not pretend to offer today that new paradigm and how to operationalize it in the very complex environment of world affairs.   But I do suggest that the people of Bosnia and Herzegovina have earned their right to weigh in and help structure a future that is intolerant of atrocity crimes.  Thank you again for this special opportunity to be with you.


Keynote Address of Ambassador David Scheffer, International Conference: The research process, documentation and prosecution of genocide in Bosnia and Herzegovina, Hotel Europe, Sarajevo, 11 June 2015


David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director, Center for International Human Rights, at Northwestern University School of Law.  He was the first U.S. Ambassador at Large for War Crimes Issues (1997-2001) and is author of the award-winning “All the Missing Souls: A Personal History of the War Crimes Tribunals” (Princeton University Press, 2012).


Ljubljana, July 7, 2015

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