Affirming belief that America is an exceptional nation has become a test of patriotism in American politics. Standing up for America’s right to make its own rules and live its own unique destiny has become an obligatory part of campaign rhetoric at a time when China is on the rise and the American economy is struggling back to its feet. Barack Obama learned this to his cost in 2009. When asked by a Financial Times journalist whether he believed in American exceptionalism, Obama replied that he believed in it “just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism.” True, he went on to say that America’s “unmatched military” and its democratic practices were “exceptional” after all. But his implying at first that America was not really so special was a gift to the Republicans and they duly pounced, with Mitt Romney and Newt Gingrich both trumpeting their belief in America’s unique and predestined role of leadership in the world.
Exceptionalist rhetoric is more than a language game for politicians trying to win support from an anxious electorate traversing the dark wood of possible imperial decline. Exceptionalism also influences the practice of American policy, nowhere more so than in US approaches to international law and justice.
Law, after all, constrains power, and the United States, like any great power, is likely to support a law-bound international order only if it ties up the power of its competitors more than it constrains its own. Other great powers have subscribed to this realist calculus in advancing international law. America is exceptional in combining standard great-power realism with extravagant idealism about the country’s redemptive role in creating international order. Since Franklin Roosevelt’s leadership in setting up the United Nations and the Nuremberg trials, the US has promoted universal legal norms and the institutions to enforce them, while seeking by hook or by crook to exempt American citizens, especially soldiers, from their actual application.1 From Nuremberg onward, no country has invested more in the development of international jurisdiction for atrocity crimes and no country has worked harder to make sure that the law it seeks for others does not apply to itself.
Although I’m not sure he’d see it this way, this is the story that David Scheffer tells in All the Missing Souls. He was Madeleine Albright’s expert on war crimes issues while she was ambassador to the UN between 1993 and 1997. When she became secretary of state, Scheffer served as the first US ambassador for war crimes throughout Clinton’s second term. He was involved in the creation, following UN Security Council resolutions, of every major international criminal tribunal of that era: Rwanda, Yugoslavia, Sierra Leone, Cambodia, and the permanent International Criminal Court (ICC). These new courts were the single most important advance in international criminal justice since Nuremberg, and Scheffer’s book is an exhaustive insider’s account, the most thorough we are likely to have, of how they were set up. The central paradox is that none of them would have come into being without US leadership and yet all of them were crippled by American refusal to help them do their jobs.
All the Missing Souls is a very personal history, an angry book by an often bitter man caught in the middle, conflicted in his loyalties, trying to advance the American agenda on international justice, while simultaneously having to tell potential allies in other countries that the agenda did not apply to Americans. Scheffer sought to support the tribunals, despite having to explain to furious international prosecutors why the US could not supply them with the evidence they needed to convict war crimes suspects. As he remarks, “I often spent as much time fighting the Washington bureaucracy as I did negotiating in foreign capitals and with UN officials.”
Many observers at the time wondered why he didn’t quit. He says the impulse to resign came over him only once, when he felt he had lost Madeleine Albright’s confidence. He regained it and hung on, believing that it was better to establish imperfect institutions of international justice than walk away. The question that hangs over this memoir is whether he was right.
The US pushed for the establishment of the Yugoslav and Rwanda tribunals in 1993 and 1994 and provided a quarter of their funding. Then the Pentagon refused to assign American forces in Bosnia the task of arresting the most egregious war crimes suspects—Radovan Karadžić and Ratko Mladić—and the Clinton administration also refused to supply successive international prosecutors—Richard Goldstone and Louise Arbour—with the satellite imagery, data intercepts, and suspect interviews they needed to prepare their cases. The US was not the only source of frustration for war crimes prosecutors. The UN bureaucracy, especially the legal bureau, threw up roadblock after roadblock. In Scheffer’s words, they “scuttled or dangerously delayed one justice imperative after another.”
France supported the tribunal in Rwanda and then refused to arrest any suspects in the Operation Turquoise protection zone it established in the south of the country. France also supported the Yugoslav tribunal but refused to arrest any indicted war criminals in its zone in Bosnia. In 1997, Scheffer tells us, Herve Gourmillon, a French major, probably acting under instructions, went so far as to tip Karadžić off, enabling him to dodge a raid aimed at delivering him to the tribunal in The Hague.
In relation to international justice, then, all the great powers played a double game, but none more so than the United States. As Scheffer discovered, the Pentagon, the CIA, and the Defense Intelligence Agency repeatedly refused to deliver American intelligence intercepts and satellite imagery to the Yugoslav tribunal. US agencies were “stubbornly lackadaisical,” and often contemptuous of the very idea that American intelligence and military agencies would be concerned with war crimes issues. Lower-level officers in Bosnia joked with Scheffer that before their military chiefs would order a raid to arrest a suspect, they would want “the number of tiles on the indictee’s roof triple-counted.”
Despite persistent opposition from force commanders on the ground and outright resistance at the Pentagon, Scheffer did find some allies and won some victories. George Tenet agreed that the CIA would provide the Yugoslav tribunal with satellite imagery showing how Serbs attempted to hide grave sites following the Srebrenica massacre of 1995. A slow trickle of information from American intelligence reached the tribunals in The Hague. During the negotiations over the Dayton peace accords in 1995, Richard Holbrooke refused to offer amnesty to war criminals and, in so doing, saved the Yugoslav tribunal and gave the lie to the argument that peace could only be achieved at the price of justice.
When Scheffer left office in 2001, fifty men had been indicted and delivered to the tribunals. At the Rwandan tribunal, a head of government had been found guilty of genocide. But the worst offenders in Bosnia were still at large, thanks, so Scheffer argues, to the “unbearable timidity” and double-dealing of the very NATO powers that brought the Balkan wars to an end.
The resistance to making arrests for the tribunals went right to the top. Thanks to Scheffer, we begin to understand why Karadžić and Mladić were indicted in 1995 but only brought to justice in 2008 and 2011. Scheffer lists the senior figures he holds responsible:
Defense Secretaries William Perry and William Cohen, Chairmen of the Joint Chiefs of Staff John Shalikashvili and John Shelton, Army Generals Ed Shensiki and George Joulwan, Admiral Leighton Warren “Snuffy” Smith, CIA Director John Deutch, and French general Bernard Janvier.
The same cast of characters also opposed Scheffer’s attempts to get the US to sign on to the International Criminal Court. In the summer of 1998 Scheffer led the US negotiating team to the Rome conference that set up the Court. This was the summer when the Monica Lewinsky affair was absorbing all of the White House’s attention. The affair, Scheffer charges, “grievously impaired US national interests” because no one in the field could get instructions from their distracted bosses. The crucial meeting on the administration’s policy toward the Court occurred, ironically, with the aggrieved wife herself, Hillary Clinton, in the Map Room of the White House in June 1998. It must have demanded preternatural self-discipline from Mrs. Clinton to hold a meeting on the Court while the revelations about her marriage spilled over the newspapers. The Map Room meeting, Scheffer realized, proved decisive. After listening to Scheffer, Mrs. Clinton said that she understood how difficult Scheffer’s job would be in Rome. Scheffer took that to mean “she would advise the president to back the Pentagon’s futile position, and that is exactly what he did.”
The Pentagon’s “futile position” was to demand that Scheffer secure an iron-clad guarantee that no American soldier would ever face trial in any international court. Scheffer sought in vain to convince Pentagon lawyers that America had all the guarantees it needed in the principle of “complementarity,” which gave the Court jurisdiction over crimes against humanity only in cases where national courts were unable or unwilling to act. On top of that, the United States could veto any referral to the Court from the Security Council. In addition, Status of Forces Agreements (SOFAs) with over a hundred countries guaranteed that if American military personnel faced accusations in foreign courts, they would never be tried overseas but always repatriated home for justice, discipline, or exoneration.
Again, this was insufficient protection for American military interests. The Pentagon insisted that if the US refused to sign the Rome Statute setting up the new court, it would have no jurisdiction over American nationals. Not content to lobby within the administration for such limitations on the Court’s actions, the Department of Defense actively threatened NATO allies like Germany that the US would withdraw troops from Europe if the Europeans continued to insist on universal jurisdiction for the Court.
These clumsy and arrogant attempts at blackmail backfired, leaving the US delegation, led by Scheffer, a war crimes ambassador who secretly agreed with many of America’s critics, totally isolated in Rome. A court that American presidents had called for, that American international lawyers and congressional resolutions had supported, ended up coming into being in the face of adamant US opposition. While President Clinton eventually signed the Rome Statute in the dying days of his administration, by then the ground had been prepared for the Bush administration counterattack, culminating in a “de-signature” of the statute in 2002.
Since then, the ICC has worked hard to ingratiate itself among the great powers. The current president of the Court, Song Sang-Hyun, a South Korean judge, has cited the Security Council’s unanimous referral of Muammar Qaddafi to the ICC for prosecution in 2011 as evidence that the Court has regained the US support it lost in the Clinton and Bush administrations.2 This looked true when the referral was made in February 2011, but critics have argued since then that when the Court’s actual indictment came down in June 2011, it closed off the last exit for the dictator and guaranteed that he would go down fighting, as in fact he did. The unresolvable question is whether the ICC indictment played a part, inadvertently or not, in driving the Libyan operation beyond its original UN mandate of protecting civilians into full-scale “regime change,” although a coherent new regime has yet to emerge. (According to an AP report on February 21, “Hundreds of armed militias that fought against Gadhafi’s forces are the real power on the ground in the country, wielding control over cities, neighborhoods and borders while the transitional government has been unable to rein in fighters, rebuild decimated institutions or stop widespread corruption.”)
No indictment of President Bashir Assad of Syria for the vile carnage in Homs and elsewhere is on the horizon, given Russian and Chinese refusal to authorize a Security Council referral. We have to question, therefore, whether the ICC has actually gained the support of the great powers that it thought it had achieved, once and for all, in the Libyan case.
Creating an international court was supposed to rescue the possibility of universal justice from the revenge frenzies, political compromises, and local partialities of national justice. International justice turns out to be as much the prisoner of international politics as national justice is of national politics. Indeed, given the stakes, international justice may be more partial, that is, more politicized, than national justice.
If the Court is to build up its independence of these political pressures, it will have to take up cases referred to it by nation-states and by the Security Council and develop as a competent and credible institution. So far it has made only modest progress. It has been in business since 2003 and its docket is now exclusively concerned with African cases, none of which has reached the stage of judgment.
Even though these cases have been referred by the states themselves, and even though the new chief prosecutor is a lawyer from Gambia, Africa resents the heavy emphasis of the Court on its problems and has pointedly refused to banish or isolate President Omar al-Bashir of Sudan, one of the most famous leaders the Court has indicted. He is welcomed in African capitals and has continued to bomb and strafe the new state of South Sudan and the tribes on the border.
Bashir’s continuing defiance forces any observer to be skeptical of the claim by the Court’s current president that international justice serves a useful deterrent function. It is always difficult to prove a negative, but the evidence is not overwhelming that the Court’s existence has stayed the hand of the world’s infamous rulers. Certainly not in Syria or South Sudan. Atrocity, after all, is something more than brutality. It serves a logic—the maintenance of power by any means necessary—and justice is often too abstract and distant to deter this logic.
International justice, above all, remains justice for criminals from defeated states or those too weak to deny jurisdiction. We will not have international justice in the true meaning of the term until one of the great powers allows one of its citizens to face judgment at The Hague. None of the Security Council members with a veto—the US, Russia, China, France, and Britain—is willing to send one of its nationals to the ICC, should they be accused of crimes against humanity. America would make itself truly exceptional, in the sense of choosing ideals over interests, if it broke with this pattern and staked its faith in international justice by turning over a citizen to the Court, should the occasion arise. But that day, if it ever comes at all, is a long way off.
Given these limitations, the question of whether the establishment of international justice was actually worth it hangs over David Scheffer’s narrative. The tribunals—Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC —together cost their donors $3.43 billion from 1993 through 2009. This is roughly the cost of two Stealth bombers. For this sum 131 convictions have been recorded. But these costs and these results do not decide the question of how effective the tribunals have been. No one is dying from atrocity crimes in Bosnia these days, or in Cambodia, Sierra Leone, or Rwanda. Justice—imperfect, partial, expensive—has been done and even been seen to be done. In these places, murderous rages have subsided. Some have reconciled. States have achieved stability. People are moving on. One of the reasons for this may be that in some cases justice was done. If so, David Scheffer can be proud of what he tried to do.
Facts About War Crimes April 26, 2012
American Exceptionalism and Human Rights, edited by Michael Ignatieff (Princeton University Press, 2005). See also Stephen Walt, “The Myth of American Exceptionalism,” Foreign Policy, November 2011; and Jerome Karabel, “‘American Exceptionalism’ and the Battle for the Presidency,” The Huffington Post, December 22, 2011. ↩
Song Sang-Hyun, “From Punishment to Prevention: Reflections on the Future of International Criminal Justice,” Wallace Wurth Memorial Lecture, University of New South Wales, Sydney, Australia, February 14, 2012. ↩