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The Ultimate War Crimes Expert, Back in the Game


Kaing Guek Eav Duch
Kaing Guek Eav, called Duch, received a life sentence on Feb. 3, 2012, at the UN-backed Khmer Rouge war crimes trial for running Tuol Sleng prison, which tortured and sent at least 12,000 people to their deaths in notorious "killing fields." EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA

No American diplomat or scholar of international law has been more deeply involved than David Scheffer in the creation of virtually every war crimes court from the catastrophic implosion of Yugoslavia to the long-overdue reckoning for the Khmer Rouge in Cambodia. Now, in a new book, “All the Missing Souls: A Personal History of the War Crimes Tribunals,” he tells one riveting tale after another about how long and hard the struggle was to make them happen.

It isn’t over for Scheffer, either. He has recently been appointed Secretary-General Ban Ki-moon’s special envoy for the seriously compromised Cambodia tribunal, which is near collapse under pressure from Prime Minister Hun Sen, a former Khmer Rouge regional commander who has other veterans of the movement in his government.

Scheffer, who as a negotiator and then ambassador at large for war crimes issues in the administration of President Bill Clinton, was also at the center of Washington’s battles over American policy toward the International Criminal Court, perhaps the most bruising experience of his career. The court was to be the capstone of efforts — some led by Washington — to create a permanent judicial system that would hold leaders accountable for a multitude of abuses, like those carried out in the 1990s with impunity and shocking brutality.

In the end, when the Rome Statute was adopted in 1998 as the governing treaty, Scheffer saw months of work torpedoed by a Clinton White House decision not to join the court, a capitulation to the “siren of exceptionalism” in Washington, where a sense of outrage that any foreign body could or should sit in judgment of Americans was at fever pitch, particularly in the Pentagon. An abiding target of Scheffer’s criticism is Clinton’s defense secretary, William Cohen.

"All the Missing Souls"
David Scheffer details his work on founding the International Criminal Court and setting up war tribunals.

Though the Clinton administration signed the treaty at the last minute in a blizzard on New Year’s Eve in 2000, a story Scheffer tells with wry humor, he recalls feeling “adrift in loneliness” after returning from Rome in 1998. He believes that the reluctance of Clinton to confront the critics and the president’s lukewarm interest in the issue opened the way to active efforts by President George W. Bush not only to try to remove the US signature (not possible) but also to undercut and sabotage the court.

“The siren of exceptionalism enveloped the entire enterprise of the International Criminal Court on my watch and dictated the far more extreme policies under the George W. Bush administration,” he wrote.

In one astonishing vignette, Scheffer recounts how on the eve of the 1998 Rome treaty conference, President Clinton was too preoccupied with the Monica Lewinsky scandal to attend a top-level White House meeting to lay out the final version of American policy for Scheffer to take to the conference. The president sent Hillary Clinton in his place, though she had absolutely no official role in policy making.

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Scheffer is still angry about the Clinton administration’s timidity in confronting opponents of the court, including Senator Jesse Helms, who vowed that the Rome treaty would be “dead on arrival” on Capitol Hill if it were sent for ratification.

“The stubbornness of various Washington agencies and officials in seeking full immunity from prosecutions for American soldiers and other citizens, regardless of whether the United States joined the International Criminal Court, seemed at time to be forged in Alice’s Wonderland,” Scheffer wrote. “As with so many other international treaties of great importance, the Rome statute had fallen prey to Washington’s endless conflicts between sovereignty and global responsibilities.”

In a warning, he added: “How much longer will Americans be lulled into false security by the echo chambers of Washington’s nativist proponents?”

Cambodia, the ‘toughest cockfight’

Scheffer, a professor of law and director of the Center for International Human Rights at Northwestern University Law School, divides his comprehensive book into chapters detailing the formation of regional tribunals: for the former Yugoslavia, Rwanda, Kosovo, Sierra Leone and Cambodia, which he calls “the toughest cockfight.” The Khmer Rouge tribunal is a unique court based near Phnom Penh and technically within the justice system of Cambodia but operating with significant input from the UN, which appoints some of its judges and other officials.

“International justice is the art of the possible,” Scheffer writes, “and nowhere was that demonstrated more profoundly than in Cambodia.” In the decade it took to arrive at a plan for Khmer Rouge trials, all the tensions, jealousies and profound political and legal differences of the parties involved came together in a perfect maelstrom.

Scheffer’s approach toward getting a court up and running without waiting for perfection, given the duplicity and game-changing techniques of the Cambodian regime, collided with the strong concern that the UN’s reputation was at stake, a feeling shared by Secretary-General Kofi Annan and his chief legal counsel, Hans Corell, a Swedish judge, who at one point shut down further negotiations with the Cambodians. Annan and Corell and other UN officials have since spoken to me about feeling under too much pressure from Washington – and Scheffer specifically – to get the job done expeditiously. This was not the only period of tension between Washington and the UN, but it may have been the most pronounced.

Scheffer also had some problems, once again, in Washington, where he lived and worked through the disgraceful distancing of the US from genocide in Rwanda and foot-dragging in Bosnia.  During the first Clinton administration, he served as an adviser on war crimes to Madeleine Albright when she was US ambassador to the UN; and he became the first American ambassador for war crimes after Albright moved to Washington as secretary of state.

“The building of the Cambodia tribunal is a story of innovation, risk-taking and perseverance in which some of my colleagues deserve enormous credit, while others in Washington and at the United Nations played the role of spoiler time and time again,” Scheffer wrote.

Scheffer is back in the Cambodia game, now working with a new secretary-general. This is worth watching.

Additional resources

The International Criminal Court’s Stance on Torture

Saving the Troubled Khmer Rouge Tribunal

Congolese Warlord Found Guilty in Court’s First-Ever Trial

The International Court’s New Prosecutor

We welcome your comments on this article.  What are your thoughts?

Barbara Crossette is the senior consulting editor and writer for PassBlue and the United Nations correspondent for The Nation. She is also a member of the Council on Foreign Relations. She has also contributed to the Oxford Handbook on the United Nations.

Previously, Crossette was the UN bureau chief for The New York Times from 1994 to 2001 and previously its chief correspondent in Southeast Asia and South Asia. She is the author of “So Close to Heaven: The Vanishing Buddhist Kingdoms of the Himalayas,” “The Great Hill Stations of Asia” and a Foreign Policy Association study, “India Changes Course,” in the Foreign Policy Association’s “Great Decisions 2015.”

Crossette won the George Polk award for her coverage in India of the assassination of Rajiv Gandhi in 1991 and the 2010 Shorenstein Prize for her writing on Asia.

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The Ultimate War Crimes Expert, Back in the Game
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