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

Author:Cassel, Doug
Position:Book review

All the Missing Souls: A Personal History of the War Crimes Tribunals. By David Scheffer. Princeton, Oxford: Princeton University Press, 2012. Pp. x, 533. Index. $35, 24.95 [pounds sterling].

What 1648 and the Peace of Westphalia did for state sovereignty, the 1990s may have done for international criminal justice, securing for the institution a permanent and prominent place in the architecture of international law. Until the 1990s, a world chilled by four decades of Cold War had seen no international criminal tribunals since Nuremberg and Tokyo. But then the ice began to crack: the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. Negotiations began in the late 1990s between the United Nations and Sierra Leone, and between the United Nations and Cambodia, to create mixed international tribunals (with both national and international judges and prosecutors). And in 1998, negotiators in Rome agreed on a treaty to establish the permanent global International Criminal Court (ICC). Of the 148 nations participating in the final vote, nearly all either supported the Rome Statute (120) or abstained (21). Only 7 voted against. The "no" votes included the United States, China, and Israel. Although the vote was unrecorded and the identities of the other "no" votes are still disputed, by Scheffer's count they included "the rogue's gallery of Iraq, Cuba, Syria, and Yemen" (p. 224). The Rome Statute entered into force in 2002. As of October 2012, the treaty has 121 states parties, including 2 permanent members of the UN Security Council (France and the United Kingdom).

These five international or mixed tribunals have compiled a track record of prosecutions of crimes against humanity, war crimes, and genocide. They have indicted mostly mid- and high-level officials, as well as some top leaders including Slobodan Milosevic, Radovan Karadzic, and Ratko Mladic of Yugoslavia; the entire genocidal cabinet in Rwanda; President Omar al-Bashir of Sudan; Libya's Muammar Qaddafi; the top surviving Khmer Rouge leadership; and former president Charles Taylor of Liberia. The ICTY has indicted more than 160 suspected war criminals and completed proceedings against most of them. Its last trial began in October 2012. No fugitives remain at large. The ICTR has indicted 93 persons and completed proceedings for all but 10 (1 whose trial is currently underway and 9 who remain fugitives). The Special Court for Sierra Leone (SCSL) has indicted 13 senior leaders and convicted 9. Three others died, and 1 remains a fugitive (should he still be alive). In 2012 the SCSL convicted Taylor and sentenced him to fifty years in prison. (His case is now on appeal.) The Extraordinary Chambers in the Courts of Cambodia (ECCC)--belatedly in operation some three decades after the killing fields--have indicted 5 elderly Khmer Rouge leaders. One octogenarian was recently released as too demented to stand trial. Three others are currently on trial, while the notorious prison commander known as "Duch" was sentenced in 2012 to life in prison.

The ICC has opened full investigations in seven situations (all in Africa): Central African Republic, Cote D'lvoire, Darfur, Democratic Republic of the Congo, Kenya, Libya, and Uganda. Eight more--Afghanistan, Colombia, Georgia, Guinea, Honduras, Mali, Nigeria, and North Korea--are at this writing in formal "preliminary examinations." Through October 2012, the ICC has indicted 24 individuals, of whom 11 are in custody or otherwise before the Court. One, Congolese paramilitary leader Thomas Lubanga, has been convicted of abducting child soldiers and forcing them to fight; he was sentenced to fourteen years in prison.

Most of these developments are the legacy of the labors of David Scheffer during the Clinton administration. As senior adviser to UN Ambassador Madeleine Albright during the first Clinton term and as the first U.S. ambassador for war crimes during the second term, Scheffer was at the forefront of U.S. efforts to promote four tribunals (the ICTY, ICTR, SCSL, and ECCC), even as he was under instructions from his government to debilitate another (the ICC). As chief U.S. diplomat in the ICC negotiations, he represented a U.S. government position that was out of step with the consensus in Rome. Although managing to insert key U.S. positions into the Rome Statute, such as recognition of a broad range of gender crimes as crimes against humanity, he and his government were ultimately isolated. Two years after the Rome Statute was adopted, President Bill Clinton gave a green light on the last possible date, December 31, 2000, and Scheffer signed the Rome Statute on behalf of the United States, but only as a way to continue efforts to negotiate an ICC more acceptable to Washington. (Now in academia, Scheffer continues work in the field part-time as special expert to the secretary-general on UN assistance to the Khmer Rouge Trials.)

On behalf of the world's most powerful nation in the 1990s, Scheffer was pivotal throughout the formative decade of international criminal justice. No historian or scholar of international criminal law can afford to miss his newly published All the Missing Souls: A Personal History of the War Crimes Tribunals. A caveat, however, is suggested by the subtitle: the book is mainly a narrative of Scheffer's personal experience in negotiating to establish, and in some cases doggedly setting in motion, the five international criminal tribunals. His book does not aspire to set out a comprehensive overview of their gestation. This limitation is apparent in his main research tools: his personal notebooks spanning eight years, augmented by declassified U.S. State Department cables. Scheffer's account is an essential part of the early history of the tribunals but needs supplementing by other accounts. All the Missing Souls is personal in another sense as well: it traces Scheffer's own voyage of redemption. "For those of us in the policy rooms at the time [of the 1994 genocide in Rwanda]," he explains, "the memory of our vacillation over the horror is sickening and will never be extinguished. I owe the victims and their families my soul every day" (p. 47). In working subsequently to establish the ICTR, he adds: "Building a war crimes tribunal became my highest priority as I sought my own pathway toward redemption" (p. 68).

Several chapters of the book are devoted to unraveling the failed diplomatic...

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