A trial for show

All the Missing Souls: A Personal History of the War Crimes Tribunals

Time will tell whether Omar Al Bashir, the president of the Sudan, or Bashar Al Assad, the president of Syria, will ever be arrested and tried at the International Criminal Court (ICC).

In July 2008, the ICC prosecutor, Luis Moreno Ocampo, accused Al Bashir of genocide as well as war crimes in Darfur and issued a warrant for his arrest on March 4, 2009. Though Ocampo stated that there was insufficient evidence to prosecute him for genocide, the ICC ruled otherwise on July 12, 2010, and issued a second warrant containing three separate counts.

Al Bashir thus became the first sitting head of state indicted by the ICC, but he had the support of most African, Arab and Non-Aligned governments. Russia and China stood by him too as they hoped to benefit from commercial ties with Khartoum.

In June 2012, the UN High Commissioner for Human Rights, Navi Pillay, requested that UN investigators be granted full access to Syria and urged the UN Security Council to refer the incidents there to the ICC. She asserted that all those who ordered the attacks on civilians, helped carry them out, or failed to stop them, were criminally liable for their actions — which was telling indeed.

Neither of these “cases” are included in David Scheffer’s tome, although he discusses earlier efforts to create criminal tribunals for the Balkans, Rwanda, Sierra Leone and Cambodia, laying the groundwork for the controversial process of bringing the world’s architects of atrocities to justice. It is a big book — few will invest the required time to digest it, although no reader will put it away unsatisfied.

Scheffer, who is the Mayer Brown/Robert A. Helman Professor of Law and director of the Centre for International Human Rights at Northwestern University School of Law, was appointed UN secretary-general’s special expert on the Khmer Rouge trials in the late 1990s. He also served as the first United States ambassador-at-large for war crimes issues (1997-2001) and led American initiatives on war crimes tribunals during the 1990s for the Bill Clinton Administration.

The book discusses how Madeleine Albright, who was the US ambassador to the United Nations under Clinton, instructed Scheffer to spearhead the historic mission to create a war crimes tribunal for former Yugoslavia. This was a daunting challenge in 1993, but the efforts paid off, as several senior Balkan “officials” were hunted down for their unspeakable massacres in Bosnia-Herzogovina, especially in Srebrenica, where at least 8,000 Bosniaks (Bosnian Muslims), mainly men and boys, were murdered.

On November 16, 1995, Radovan Karadzic, “president of the Republika Srpska”, and Ratko Mladic, a local commander, were indicted by the International Criminal Tribunal for the former Yugoslavia, holding them directly responsible for the atrocities committed in Srebrenica. Slobodan Milosevic, the president of Serbia from 1989 to 1997 and president of Yugoslavia from 1997 to 2000, was also arrested and transferred to the Hague to face charges for genocide or, at least, complicity in genocide. However, Milosevic died on March 11, 2006, during his trial and so no verdict was reached.

Reading Scheffer’s commentaries reveal how convoluted these efforts were. Nevertheless, criminal tribunals resulted in the creation of the permanent ICC, which proved that the international community faced serious dilemmas. As Scheffer asserts, the mere fact of holding such trials became a gamble, since prosecuting those responsible for genocide, war crimes and crimes against humanity, and redressing some of the bloodiest atrocities of our time, was neither easy nor consensual.

As a mandated representative anxious to prosecute criminals, Scheffer was astounded to learn how American exceptionalism undercut his diplomacy, especially during the 1994 Rwandan genocide and the 1995 Srebrenica massacre trials, when every step forward to hunt down notorious war criminals was hampered by political considerations.

The book contains interesting details on Kosovo, Cambodia and Sierra Leone, although the reader would probably learn far more from gripping tales in the corridors of the UN Security Council or allied Cabinet rooms. To his credit, Scheffer presents candid portraits of major figures such as Madeleine Albright, Anthony Lake, Richard Goldstone, Louise Arbour, Samuel “Sandy” Berger, Richard Holbrooke and Wesley Clark, among others, all of whom played the political game to the hilt. Some talked the talk but seldom walked the walk — of which Omar Al Bashir and Bashar Al Assad will be all too aware.

International justice was never an easy proposition, but as “All the Missing Souls” says, mankind eventually gets there — political roadblocks notwithstanding.

Dr Joseph A. Kéchichian is the author of the forthcoming Legal and Political Reforms in Saudi Arabia (Routledge, 2012).