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Thomas S. Warrick Deputy, Office of War Crimes Issues Address to 28th Annual Scholars Conference University of Washington, Seattle, Washington, February 28, 1998

The Pall of the Past:
The Holocaust and Genocide on the Eve of the 21st Century

Thank you for inviting me tonight. This is a very distinguished audience, and it's an honor to be able to open a conference of Holocaust scholars. Your subject is a very serious one. The Holocaust is one of the defining events of the 20th century. It's hard for any of us to grasp its significance, even today.

Remembering the Holocaust--studying it--is one of the most important things we can do to honor those who perished, as well as those who survived. Everyone here, in one form or another, has that connection. In my case, it was that my mother-in-law was the only member of her family to leave Nazi Germany alive. Each of us, regardless of our history, background, or circumstances, is affected today by the Holocaust and its consequences. Remembering what happened then helps us understand what the Holocaust means to us today.

I'd like to talk tonight about some things that are going on today that, in their way, honor the memory of the six million. The last few years have seen efforts to build new institutions of international criminal justice. The goal of these efforts is not to duplicate the trials at Nuremberg--it's to try to avoid the need for future Nurembergs. That may seem like an ambitious undertaking, and it may not be attainable. But before anyone dismisses anything in this field as utopian, I would point out that ten years ago, an international criminal court was thought unattainable. Three years ago only a few of us thought the day would come when the Yugoslav war crimes tribunal would need more jail cells, more courtrooms, and more judges. Those days have now arrived.

Let me tonight try to give an overview of what some call the war crimes issue. I'd like to discuss six points. First, let me give a brief overview of the legal scope of the two existing ad hoc war crimes tribunals. Second, I want to talk about the efforts to establish the International Criminal Tribunal for the Former Yugoslavia, the first international war crimes tribunal since Nuremberg and Tokyo. Third, I'll talk about efforts to establish international justice and domestic justice in Rwanda. Next, I'll summarize the state of play of the proposed International Criminal Court, which is now under consideration at the United Nations in New York. Fifth, I would like to point out two examples where there are gaps in our efforts to bring justice to hundreds of thousands of victims in places like Cambodia and Iraq. Finally, I'll close with some reflections on the emerging norms of accountability.

The Legal Scope of the Two ad hoc War Crimes Tribunals

Most people have a general idea of what an international war crimes tribunal can prosecute. What happened in the former Yugoslavia most people understand is a war crime. You're not supposed to kill prisoners, or rape or sexually assault people.

In fact, the laws that war crimes tribunals apply are more precise in many ways than what was prosecuted at Nuremberg after World War II. This year we are celebrating the 50th anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations on December 9, 1948. This was an effort after World War II to codify a crime that every civilized nation already recognized as a crime, namely genocide. In so doing, however, the drafters of the Genocide Convention laid down a specific definition that drew genocide away from purely the model of what happened in the Holocaust. One of the essential elements of the crime of genocide, according to the Convention, is "the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such." The Holocaust showed an intent of destroying groups wholesale. The standard of the 1948 Genocide Convention is a lesser standard--intent to destroy in substantial part constitutes genocide. Thus, in the case of the former Yugoslavia, someone could be convicted of genocide even though they had no intent to kill all Muslims. The crime of genocide in Rwanda does not require the perpetrators to intend to kill all of the Tutsis. Even so, however, proof of intent can be tough to obtain in some cases.

Genocide is, in most people's minds, the most grievous crime that can be charged by an international war crimes tribunal today. Of the 79 people publicly indicted by the ICTY, only 7 have been indicted for genocide. Two of the seven are already in jail in The Hague.

Second in my list is Crimes Against Humanity. These can be prosecuted where there has been widespread and systematic killing, torture, rape or other serious abuses. There is no requirement that the victims be targeted based on their ethnic or religious backgrounds. In many cases, prosecutors may be able to secure a conviction of someone for Crimes Against Humanity when there is no evidence the victims were targeted based on ethnicity.

Incidentally, in the movie "Schindler's List," Amon Goeth, who commanded the concentration camp near Krakow, is shown as executed for Crimes Against Humanity--not genocide. The judges in the Erdemovic case--Drazen Erdemovic was a participant in the massacres near Srebrenica--said that Crimes Against Humanity should carry a greater sentence than other, lesser categories of war crimes. We would agree with this decision.

There were four Geneva Conventions adopted in 1949 to which everyone adheres. These conventions apply in specified situations to "protected persons" such as civilians and prisoners of war. This protection is not absolute; and there are other legal requirements that must be met before someone could be prosecuted for what are called Grave Breaches of the Geneva Conventions.

The fourth category is violations of the laws and customs of war. There are a number of international conventions specifying what those are.

These are the categories of war crimes prosecuted by the ICTY and the ICTR. Interestingly, in the negotiations for an International Criminal Court, we are trying to get other countries to recognize that this is a treaty where we should stick to the established categories of war crimes for which there is widespread agreement. Universal agreement for the court will be easier when there is broader agreement on these issues.

Bosnia and the International Criminal Tribunal for the Former Yugoslavia

Let me turn to the former Yugoslavia and the International Criminal Tribunal for the Former Yugoslavia. The ICTY was established as a response to a series of reports of horrible atrocities committed against prisoners or civilians: Vukovar, Croatia, in 1991, where 200 Bosnian Muslim and Bosnian Croat men were taken from a hospital to be executed in a field near a pig farm. Omarska, Bosnia, in 1992, where thousands of people were tortured and killed in order to "ethnically cleanse" an area in northwestern Bosnia. And after the Tribunal was established, the massacre of more than 7,000 Bosnian Muslims after the fall of Srebrenica represented the single worst atrocity on the European continent since 1945.

There was a preliminary effort to conduct an investigation in 1992 to 1994 through a "Commission of Experts." I happened to work for Cherif Bassiouni, the chairman of this commission. The Commission gathered documents, interviewed witnesses and recommended to the United Nations Security Council that they should establish a war crimes tribunal. This occurred in February 1993.

The ICTY was set up by the Security Council in May of 1993. It represented the first international criminal tribunal since Nuremberg and Tokyo after World War II. The first prosecutor was Justice Richard Goldstone of South Africa. United States support was what brought the Tribunal into being. In 1995, Justice Goldstone described then-Ambassador Madeleine Albright as the "mother of the Tribunal" in recognition of her leadership in setting up the ICTY. Justice Louise Arbour of Canada succeeded Justice Goldstone as prosecutor in October 1996.

Initially, the Tribunal's indictments focused on camp commanders, but in July 1995, the Tribunal indicted Radovan Karadzic, then-president of the Bosnian Serb rump state, and Ratko Mladic, head of the Bosnian Serb military. Both Karadzic and Mladic were subsequently indicted again in November 1995 for their role in the massacres at Srebrenica.

The Tribunal's indictments of Karadzic and Mladic played a key role in their being excluded from the peace process at Dayton, Ohio in November 1995. Much of the progress we have had in Bosnia since then has been because Karadzic and Mladic have been excluded from office. The United States' goal is to see both Karadzic and Mladic on trial in The Hague.

Since July 1996, the Tribunal has been using sealed indictments to help make more arrests possible. This is essentially the practice used in the United States. It certainly helps make apprehension of an indicted war criminal easier if the suspect can be taken unawares.

United States policy in the last year has brought about a dramatic increase in the number of indictees in custody. A year ago, only 8 people had been taken into custody in The Hague. Today, that figure has more than tripled to 27 people. On January 22, SFOR forces operating in the American sector detained Goran Jelesic, indicted for genocide for running a camp in Brcko at which a thousand people may have been killed. Jelesic was one of only seven people indicted for genocide by the ICTY, and his capture represents a major advance for the Tribunal. In the last two weeks, three other Bosnian Serbs have chosen to surrender themselves. They told the press they surrendered out of a fear for what would happen if SFOR had to use force to detain them. We regard that as a wise choice on their part. Other indictees need to take the hint. The United States and our allies in SFOR believe more indictees should be in The Hague. We are committed to keeping all options open to bring indicted war criminals to justice in The Hague.

Rwanda and the Need for Justice

Let me now turn to Rwanda. The genocide in Rwanda occurred over a very short time period. Perhaps 800,000 people were killed, most of them in a few months in early 1994. Most of the perpetrators were Hutu; most (but by no means all) of the victims were Tutsis. While the killing was going on, an army led by Tutsi exiles came into Rwanda, bringing the genocide to an end--or so it was thought.

The International Criminal Tribunal for Rwanda was set up much more quickly than the Yugoslavia tribunal. The ICTR, which is based in Arusha, Tanzania, arrested some key defendants early on, among them Theoneste Bagosora, the "Ratko Mladic" of Rwanda, that is, a top military commander. A number of trials are now underway, and the ICTR has told everyone to expect the first verdicts later this year.

The ICTR was initially plagued by serious administrative difficulties. The U.N. responded by effectively replacing two top officials. When Ambassador Scheffer was in Arusha in September he concluded that the Rwanda tribunal was administratively back on track. We are continuing to monitor the situation.

A key problem in Rwanda is that they have more than 125,000 people in custody in Rwandan jails. Virtually all are accused of being participants in the genocide. Unfortunately, the Rwanda judicial system, including judges and lawyers, was a target of the genocide. Thus, the pace of resolving these cases is too slow. The hope is that when the ICTR hands down its decisions, it will give the people of Rwanda the justification they need for deciding to amnesty many of the 125,000-plus people in custody now.

In December, Secretary Albright and Ambassador Scheffer were in Africa when a group of Hutu rebels attacked a refugee camp in Mudende, Rwanda. Secretary Albright directed Ambassador Scheffer to investigate. His conclusion was that Hutu rebels were mounting attacks that constituted a "resurgence of genocide." Thus, the situation is Rwanda is far from settled. Clearly, the need for justice in Rwanda and neighboring countries is great. Secretary Albright has announced the United States will be contributing $30 million towards a Great Lakes Justice Initiative to help restore justice to this troubled area of Africa.

The Proposed International Criminal Court

The idea of a permanent International Criminal Court has progressed from vision to near-reality in a matter of years. The ICC would be a permanent body. It would not replace national courts. Instead, through a doctrine called "complementarity," the ICC would complement national court systems. The ICC would defer cases to countries with developed legal systems. Just as the rule of extradition treaties is "prosecute or extradite," the rule governing the International Criminal Court must be "prosecute nationally or risk international prosecution." National governments would either investigate and prosecute themselves any cases of genocide, crimes against humanity or war crimes. If they didn't, the ICC would stand prepared to prosecute the case directly.

One issue in putting together the ICC is what should be the role of the U.N. Security Council in referring cases to the Court. The United States' position is that the Security Council has the responsibility under the U.N. Charter for international peace and security. The Security Council will need to involve itself in certain procedures of the ICC so that the dual objectives of peace and justice can be pursued most effectively.

The ICC is on a fast track timetable for completion of the draft of a statute that would govern the work of the Court. The United States delegation, led by Ambassador Scheffer, is in the midst of negotiations with other countries right now on the text of a statute. There will be a diplomatic conference in Rome in June and July 1998. The package as a whole will then be submitted to the U.S. Senate for ratification.

President Clinton has said that our goal is to see the ICC established by the end of the century. An effective ICC that has broad international support should be one of the lasting achievements of the Clinton Administration.

Can We Fill the Gaps?

With the ad hoc tribunals for the former Yugoslavia and Rwanda hard at work, and the ICC being put together, we have not lost sight of recent atrocities that still call out for justice. In Cambodia, the Khmer Rouge leadership was responsible for killing 1,000,000 to 2,000,000 people in the late 1970's. We would like to see Pol Pot, for example, tried not under rules set by the Khmer Rouge, but rather under international law.

Iraq is another country for which there now exists no mechanism of international accountability. Saddam Hussein has used poison gas against Iran and even against his own people. His status as a "repeat offender" in using weapons of mass destruction is precisely why he cannot be trusted with them. He committed Crimes Against Humanity against the Kurds in his north, the Shi'a in his south, and against the Kuwaiti people. We cannot forget his attacks on Iran, Kuwait and Israel.

Reflections on Emerging Norms of Accountability

Let me leave you with six concluding thoughts.

First, the idea that war crimes deserve investigation and prosecution is emerging as a norm of conduct in international relations. I offer two vignettes.

At the end of my first trip to the Holocaust Memorial Museum in the early 1990's, I found myself, as many of you have been, in the hall where the names of Righteous Gentiles are recorded. I heard a mother tell her child, "Here's where we would have been listed." I will confess my heart was hardened for a moment, because I know how most Germans actually reacted during the Holocaust. But then I started to realize what that moment also meant. The child was getting a more important instruction, "Here is how I expect you to behave." That can be a powerful lesson.

Second, I have been struck by the fact that war crimes trials have started to show up in a number of popular TV shows. This was not the case five years ago. I knew that international justice had arrived as part of our culture when the idea of a war crimes trial showed up late last year in that icon of American popular culture, "Star Trek." The idea that international mass murderers can and should be brought to justice is a powerful one, and it is not going to go away.

My second thought is that we are in the process of renewing the legacy of Nuremberg through what we are doing in The Hague and Arusha. Applying the rule of law to the Nazi leadership represented an important step forward. Nuremberg was criticized as victor's justice. In the former Yugoslavia and in Rwanda, it is not the victors who are imposing international justice, it is the international community itself.

My third thought is the importance of U.S. participation in international institutions of justice. We need the prestige of the United Nations, as we have with the ICTY and the ICTR, or the prestige that flows from the assent of many states for an international criminal court. The United States wants an ICC, and the ICC needs the United States. History has shown that when new international institutions are started without full United States participation--like the League of Nations--they can fail. When they start with United States leadership--like the United Nations, the war crimes tribunals for the former Yugoslavia and Rwanda, and the new Organization for the Prohibition of Chemical Weapons--they can succeed.

Fourth, we learned the lesson with both the ICTY and the ICTR that resources are important. Criminal investigations are expensive, and trials are more so. The budget for the ICTY for 1998 is 69 million dollars, and for the ICTR it is only slightly less, 59 million dollars. Even these budgets are extremely limited. On a related point, we are also concerned that the United States' failure to pay our U.N. dues is hindering our ability to support the work of the Tribunals at the United Nations. This is extremely important for all supporters of the Tribunal to appreciate.

Fifth, one lesson taught by the ICTY's experience is that indicted war criminals can and should become politically isolated. After Radovan Karadzic and Ratko Mladic were indicted, it became possible for the United States to lead an international campaign that forced both from political office.

Sixth, and finally, note what may be the long-term impact of several successful war crimes tribunals. When the international community sends out the message that those under indictment cannot conduct business as usual, and that there are no statutes of limitations for war crimes, you begin to have deterrence. We must make it clear to those who would commit mass murder that it will not bring them political power--that, in fact, it will bring about their political isolation and, more often than not, their political downfall. On the eve of launching the Holocaust, Adolf Hitler is said to have remarked, "After all, who remembers the Armenians?" It is not enough for us to keep faith with the victims and survivors of the Holocaust by remembering the Holocaust alone. We must also remember the Bosnians, the Tutsis, the Khmer, and the Iraqi Kurds. Fifty years from now, if a madman asks, "Who remembers?" we want the answer to be, "We all do."

Thank you.

[end of document]

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