I recently read David Scheffer’s All the Missing Souls: A Personal History of the War Crimes Tribunals. It’s a fascinating memoir of life as the U.S.’s first ever Ambassador for War Crimes Issues. I highly recommend it if you’re into either detailed negotiating histories of international institutions or snarky observations about UN bureaucrats and French people.
Scheffer’s discussion of the Rwandan genocide and the creation of the International Criminal Tribunal for Rwanda (ICTR) is particularly eye-opening, especially when compared to other former policymakers’ accounts of the same events. (Looking at you, Madeleine “it was complicated” Albright.) I suspect most readers will be drawn to the story of how the US and the UN bogged down in endless discussions of the meaning of the word “genocide” rather than reacting to the mass slaughter, but, being me, I found the blow-by-blow of the bargaining process between the new Rwandan regime and the international community over issues like the temporal jurisdiction of the ICTR and the possibility of the death penalty equally interesting. Not just because I love me some jurisdictional issues, but because when we talk about the impact of the tribunals, we’re generally comparing to the counterfactual of no accountability mechanism. Scheffer’s accounts of setting up the ad hoc tribunals, the hybrids, and the International Criminal Court (ICC) let us think about the courts we might have had instead.
Descending further into law-nerdery, in the section on the ICC, Scheffer advances a surprising interpretation of the applicability of the Rome Statute to nationals of non-party states. This is an issue Amanda and I touched on a couple of months ago with regard to the potential for an ICC investigation into recent attacks on civilians in Sudan, a non-party state. Scheffer suggests that Art. 11(2) and Art. 24 of the statute together preclude the jurisdiction over nationals of non-parties (except in the case of a Security Council referral) entirely.
For those who aren’t following along at home with a well-thumbed copy of the Rome Statute: Art. 11(2) says that if states join the court after the entry into force of the Rome Statute (on July 1, 2002), the court’s jurisdiction only reaches back to the date the state joined, and Art. 24 says that no person can be held responsible for crimes committed before the Statute’s entry into force. Reading these in combination, Scheffer argues that a blanket extension of the court’s jurisdiction to non-party nationals would pre-empt the effect of possible future ratifications. He explains that:
“[A] nonparty country … would have to accept the proposition that a future ratification of the Rome Statute would be meaningless because their nationals have been covered by the statute since July 1, 2002.”
Because this result would be absurd (although I actually think the more likely absurd result would be that a non-party state that commits an atrocity in 2012 would self-protectively ratify in 2013), Scheffer concludes that non-party state nationals must only be covered by the statute in cases where the state consents (under the Art. 12(3) special declaration procedure) or the Security Council refers the situation to the ICC.
I’m not sold on this interpretation. As Scheffer acknowledges, Art. 12 is clear that the court has jurisdiction over crimes when either the national state of the alleged perpetrators or the state where the alleged crimes occurred is a party to the Rome Statute. Scheffer’s reading would knock out the ability of a state party to request the ICC’s involvement in a case where a non-party state’s nationals commit atrocities on the state party’s territory, against their civilians. So, if Freedonia (a non-party state) sends raiding parties into neighboring Sylvania (a state party), and while there, Freedonia’s nationals commit mass rape against Sylvanian villagers, Sylvania couldn’t refer the case to the ICC. While I agree that this would make the court less controversial, especially for those non-party states that have widely deployed military forces (ahem, U.S.), it seems to me to be clearly against the intent of the statute, of which Art. 12 is an unambiguous expression.
Climbing back out of the law-nerdery pit, there’s also quite an interesting domestic politics angle here. The bits on the negotiation of the Rome Statute underscore both what a difficult job war crimes ambassadoring is, and how complicated the development of foreign policy can be in a democracy. Scheffer’s negotiating position at the talks was developed through coordination between the Departments of State, Justice, and Defense, each of which had different interests and concerns relating to the creation of an international court. Set against the backdrop of the Lewinsky scandal, with Jesse Helms in Congress vowing to torpedo the whole thing, the process of representing the Clinton administration’s position at Rome reads as a colossally discouraging experience.
On the every-cloud-has-a-silver-lining side of things, after several years in one of the world’s most frustrating jobs, minor irritations like this review by John Yoo probably barely register. But for those of us who make a career out of being annoyed, the scare quotes around “impunity” and “atrocity crimes,” coming from the man who gave us “Torture Memos” as a defined term, are not to be missed…