David J. Scheffer, Ambassador-at-Large for War Crimes Issues, U.S. Department of State, The Fifth Hauser Lecture on International Humanitarian Law, "Perspectives on the Enforcement of International Humanitarian Law," Vanderbilt Hall, New York University School of Law, New York City, New York, February 3, 1999


"Perspectives on the Enforcement of International Humanitarian Law"

I am deeply honored to deliver the fifth Hauser Lecture on
International Humanitarian Law at New York University School of
Law. Thank you, Dean Sexton, for inviting me here today. Rita
Hauser had considerable foresight to endow a lectureship on a
discipline of international law that has become a dominant
feature of the international political landscape and a colossal
challenge to those seeking its enforcement. But then Ms. Hauser
never shied from the challenge of a controversial subject. Her
tireless search for peace in the Middle East was the predicate to
so much of what has been accomplished in recent years in that
troubled region. As our former ambassador to the UN Human Rights
Commission and as President of the Hauser Foundation, she has
combined her public and private roles brilliantly. I remember one
particular conference at Arden House on the Hudson River years
ago where Ms. Hauser tenaciously held forth with her principled
positions until she prevailed. Ms. Hauser exemplifies the
difference one person can make in the pursuit of both
international peace and justice. I hope I can do her justice in
my remarks this evening.

There are others in this audience who have made the critical
difference. On the  faculty of this leading school of law are Ted
Meron, whose scholarship and activism in international
humanitarian law are unparalleled by anyone else, and that is
quite an achievement. Professor Thomas Franck has been an
inspiration to me, personally, since the 1970s when I first
started reading his erudite scholarship in public international
law. Andy Lowenfeld has demonstrated for decades the insight of a
lawyer's lawyer into the labyrinth we call international law.
There are other giants in academia and in private practice whose
presence here today I wish I had the time to acknowledge
individually. But I do want to recognize the presence of
President Cornelio Sommaruga of the International Committee of
the Red Cross and of the foreign diplomats who are attending the
School of Law's seminar on international humanitarian law. Their
own contribution to this growing body of law and practice has
been and will continue to be invaluable.

In the memory of my own experience, the subject we are discussing
reduces itself to several stark images:

-- Of the Tutsi women and children who, a little more than one
year ago, barely survived a genocidal assault at Mudende refugee
camp in northwest Rwanda and were trying to stay alive despite
machete, gunshot, and fireburn wounds disfiguring each and every
one of them. Of one young woman laying paralyzed from a gunshot
wound while a young boy screamed to avoid the all but certain
amputation of his mangled leg. Of a young child's agony while a
doctor sought to squeeze her brain back into her skull, which had
been slashed open by a machete.

-- Of an unbelievably overcrowded camp of internally displaced
persons, again in northwest Rwanda, a few months ago where more
than 50,000 Hutu farmers had fled violence from roaming Hutu
militia and lived in appalling conditions. Of hundreds of
children surrounding me with the deep coughs of those afflicted
with tuberculosis, the tattered rags, the extended stomachs from
near starvation, and the fear of what awaits them among their own
people on their own land. Of one child who showed me how he
sought to learn his numbers at the camp's makeshift school by
writing on his leg because of lack of paper.

-- Of the Tutsi mother at Gitarama, Rwanda, who had survived a
massacre of her villagers within the local Catholic church in
April 1994 by feigning death beneath their bodies, losing her
husband and children, hiding for weeks, and having the sheer
courage to survive and give birth to a child whose mere existence
demonstrated for me the indomitable strength of the human spirit.

-- Of the smell from witnessing mass grave exhumations in Bosnia,
Croatia, and Rwanda.

-- Of the warehouse in Tuzla, Bosnia, where last November I
viewed the corpses of about 280 Bosniaks who had been remarkably
well preserved within bodybags of the Yugoslav Army after having
been buried in a mass grave in 1992 following their massacre.
Each victim evoked the image of Munch's famous painting, "The
Scream."  Of the mother who, the day I was there, quickly
identified her husband and five sons among the bodybags with the
horror that none of us can even begin to imagine. Of the
thousands of bags and boxes of bones of victims of the Srebrenica
massacre now stacked and awaiting identification in that Tuzla
depository.

-- Of the elderly man in Kosovo who, among the massive
destruction of civilian settlements, related to me how he
witnessed the torture and murder of Kosovo Albanians by military
police of the Serbia-Montenegro and demonstrated their use of his
own pitchfork to slice open the necks of the victims and with
another stick gouge out their eyes.

-- Of a shrine of skulls from the Pol Pot regime in a small
village near a killing field in Cambodia, and the stories every
Cambodian can relate of his or her lost family during the Khmer
Rouge reign of terror. Of the instruments of torture in Tuol
Sleng prison in Phnom Penh and the row upon row of photographs of
the victims.

-- Of relatives showing me grisly photographs of Kuwaiti citizens
tortured by Iraqi security forces during the Iraqi occupation of
that country in 1990, and the environmental devastation that is
still evident from Saddam Hussein's assault on Kuwait's oil
industry.

These are the victims for whom the enforcement of international
humanitarian law means little in the aftermath of horrific crimes
that are not only a historical phenomenon, but are the
contemporary reality of our own time. The issue that has seized
the headlines and the attention of many governments,
international and regional organizations, alliances, non-
governmental organizations, and  private citizens  is how to
enforce international humanitarian law. That is, the body of law
that includes genocide, crimes against humanity, grave breaches
of the Geneva conventions, and violations of the laws and customs
of war. On any given day, the reports from the front line are
about the violation or enforcement of international humanitarian
law. Within the last decade, government decision-makers are
spending much more of their time determining how to prevent and
respond to atrocities. The Cold War has been replaced, at least
in part, by the War against Atrocities. It is why Secretary of
State Madeleine Albright created the Office of War Crimes Issues
in the State Department so that we could put a sharp focus on
these mega-crimes and on the responses to them, including
bringing at least some of the perpetrators to justice.

We are at a critical turning point. International humanitarian
law, which has typically evolved far from the headlines in the
forums of treaty making, the scholarship of eminent law
professors, and in the long-standing practice of and among
nations, has burst upon the international scene demanding that
attention be paid. In the larger sense, the era of codification,
perhaps the century of codification of international humanitarian
law, has come to a close as history's bloodiest century expires.
In the final year of this century, we can confidently predict
that the next century will be one that either enforces
international humanitarian law or witnesses the strangulation of
humankind through a proliferating series of mega-crimes which the
international system lacks the courage or ability to confront.

Not since World War II has the U.S. Government, and indeed other
governments and the United Nations, been challenged on so many
fronts with so many crimes of war, crimes against humanity, and
genocide. This is not necessarily because the frequency of
illegal conduct is that much greater, but because the
international community has steadily defined such conduct as
illegal and recognized that there is now a stronger duty to
respond than ever before. The media also has become far more
attuned to criminal conduct and journalists' capabilities to
report it instantaneously. Not a day goes by without a report
emerging from some theater of conflict or internal repression
where the body count of civilian victims is staggering. It is hot
news everywhere. When I visit the Midwest of this country, local
newspapers allocate space, however minimal, to the reporting of
atrocities even in distant places. There is, after all, more of a
human angle to such horrors than the typical international story
of diplomatic intrigue. Indeed, sometimes I have noticed that a
local stringer's wire service story of an atrocity receives
bigger play in a Midwestern newspaper than the same story by
thinly stretched reporters of the major media market newspapers.

Much is expected of us in government, and rightly so. Almost
daily, the Office of War Crimes Issues at the State Department,
which I direct, receives a new report of another atrocity,
another mega-crime that begs for a response or, if we learn of
its impending arrival early enough, preventive action. What has
confronted the Bureau of Democracy, Human Rights, and Labor--now
led by Assistant Secretary Harold Koh--since its creation during
the Carter Administration, namely the daily reports of human
rights abuses somewhere in the world, has been supplemented by a
daily phenomenon of mega-crimes that demand individual criminal
accountability rather than only state responsibility.

Of course, we know well that if we falter or delay any step of
the way, we open ourselves up to criticism from those who demand
instant action the moment a wire story is filed or an NGO reports
from the field that a crime has occurred or is occurring. I can
confirm that many of our diplomatic and other actions necessarily
occur without publicity. Our ability to work cooperatively with
other governments to confront atrocities often depends on our
ability to maintain confidential lines of communication. Our
determination to bring perpetrators of these mega-crimes to
justice very often requires us to act without publicity and to go
public only when the objective--apprehension--is achieved.

What, then, does enforceability of international humanitarian law
entail?

The UN Security Council has determined that in two regions of the
world--the Balkans and central Africa--enforceability entails an
ad hoc international criminal tribunal established under Chapter
VII of the UN Charter. The International Criminal Tribunals for
the former Yugoslavia and for Rwanda have broken the back of
impunity in their respective jurisdictions. There are bodies of
law and practice emerging from the jurisprudence of each tribunal
that are the historic underpinnings of a new age of
accountability.

First, however, we need to recognize how vital the cooperation
and assistance of national governments are to the work of both
tribunals. Enforcement cannot take place unless there are
adequate resources in place to enable tribunal authorities to
perform their work professionally and efficiently. The calendar
year 1999 budgets of both tribunals increased significantly,
about 35% higher for the Yugoslav tribunal and about 43% higher
for the Rwanda tribunal. The Yugoslav tribunal is operating on a
$103.5 million budget for 1999 while the Rwanda tribunal has a
budget of $75 million. The United States pays the largest share
of each tribunal's assessed budget. We also devote an enormous
amount of voluntary support through the activities of many U.S.
personnel in Washington, The Hague, Kigali, and elsewhere to
provide information, facilitate various tribunal activities, and
enhance enforcement capabilities. The United States also provides
voluntary financial support through numerous means. One example
is the modern courtroom recently opened in The Hague through the
joint efforts of the Dutch and U.S. governments. Another example
is the support we are providing to the Rwanda tribunal through
the Great Lakes Justice Initiative.

Let me say, however, that the time has arrived when support for
the two international criminal tribunals and other initiatives of
international justice cannot and should not be left only to
governments to fulfill. While there has been some critical
foundation and NGO support for the tribunals, the challenges of
international justice are so daunting and the available
governmental resources so stretched that we must explore new
avenues of financial support. Governments can establish
minimalist means to enforce international humanitarian law
through judicial mechanisms. But when these efforts are joined
with private sector support and even the assistance of state and
local governments, the result can create a powerful momentum for
justice on a global scale. For example, multinational
corporations have a vested interest in the observance of
international humanitarian law. When atrocities are unleashed,
every aspect of human life and economic life is affected.

Bearing that in mind, we anticipate that a leader in the
international corporate community will soon announce the largest
contribution to the Yugoslav and Rwanda War Crimes Tribunals in
the history of the tribunals' operations. I hope the example that
is set in coming weeks will inspire others to seek ways to make
their own unique contributions to the interests of international
justice.

Rwanda War Crimes Tribunal

Much has been written about the Yugoslav War Crimes Tribunal,
which has advanced key principles of international humanitarian
law. This evening I want to focus attention on the achievements
of the Rwanda War Crimes Tribunal. The recent judgments rendered
by the Rwanda Tribunal merit comment.

The Rwanda War Crimes Tribunal has greatly advanced the
enforcement of international humanitarian law by holding key
leaders--Akayesu, Kambanda, and Serushago--guilty, either by
conviction or their own plea, for serious violations of
international humanitarian law committed against their own people
and in a purely internal conflict. The consequence has been to
strengthen the enforcement of international humanitarian law in a
strictly national context provided such crimes are of such a
magnitude that they violate the norms set by the international
community.

While on its surface, the September 1998 decision against Akayesu
for the crime of genocide would appear to speak for itself, a
closer examination is worthwhile to show the true advancement in
this decision. Prior to Akayesu, there was no judicial
interpretation of the Genocide Convention. The Rwanda Tribunal's
Trial Chamber noted that the definition of genocide in Article 2
of the Tribunal statute is echoed by the 1949 Genocide
Convention. As a result, the judges followed the prosecutor's
rationale and gave genocide a broad interpretation and reading in
order to maximize the protection of a protected group. The
Chamber emphasized that the crime of genocide does not imply the
actual extermination of a group in its entirety, but is
understood as such once any one of the acts in Article 2 is
committed with the specific intent to destroy in whole or in part
a national, ethnical, racial, or religious group as such. The
Chamber made clear that rape and sexual violence constitute
genocide in the same way as any other act as long as they were
committed with the specific intent to destroy in whole or in part
a covered group. Sexual violence can indeed be an integral part
of the process of destruction. In the past, sexual violence was
not recognized by many scholars or even in the preparatory works
of the Genocide Convention as an act of genocide. This was mainly
due to the fact that society erroneously thought that genocide
must encompass lasting physical injury or death.

Further, the Akayesu decision held that rape (as opposed to the
broader offense of sexual violence) may be a crime against
humanity. In the past, specifically the Tokyo trials after World
War II, rape was mentioned under the umbrella of "inhumane acts,"
but never itself recognized in any judgment as a specific crime
against humanity. Under the Akayesu decision, for the first time,
rape has stood on its own and alone as a crime against humanity.

The Rwanda tribunal also has made many procedural advances in
enforcement. In order for the tribunal to pursue its trial work,
cooperation among international organizations was, and remains,
critical. The Rwanda tribunal, the UN High Commissioner for
Refugees, and the UN Center for Human Rights, all had to
cooperate with each other. For example, many witnesses with no
legal status were scattered all over the world and were needed in
Arusha to testify. UNHCR played a vital role in helping clear the
way for these witnesses to travel to Tanzania and return to their
place of refuge. This was a political victory, given the desire
of some harboring countries that would have preferred to see the
Rwandan refugees returned to Rwanda.

Finally, the Rwanda tribunal has a range of powers, including
subpoenas, requests, and orders, and it was able to successfully
call witnesses. The tribunal also has successfully launched
numerous arrest operations in many countries. These operations
were the result of long investigations in those countries with
the cooperation of the host state. It should be noted that the
host states complied with arrest warrants issued by the Rwanda
tribunal. These are important precedents that will be difficult
for governments to ignore in the future.

Yugoslav War Crimes Tribunal

The enforceability of international humanitarian law is not, as
some would have it, an exercise in equally distributing
indictments among competing ethnic groups. It is the search for
individual responsibility, rather than collective responsibility,
for crimes that can be documented and prosecuted. The record so
far of the Yugoslav tribunal has led some to accuse it of bias
towards one or another ethnic group in the Balkans conflict. We
do not find these accusations persuasive. Indeed, the accusations
themselves appear politically motivated. The Yugoslav tribunal
will function best if those who know of criminal conduct falling
within the jurisdiction of the tribunal would provide tribunal
authorities with as much information as possible about alleged
crimes. This requires a degree of cooperation with the tribunal
that some authorities in some countries have been reluctant to
provide in the past. But full cooperation is essential if
tribunal investigators are to follow documented leads to larger
bodies of information incriminating individual perpetrators.

The Yugoslav tribunal indictees still at large remain a test of
that court's credibility and capability to enforce its own
indictments. First, a sizable number of indictees, many of whom
held positions of high authority and who are charged with massive
violations of international humanitarian law, are no longer at
large. A total of 35 indictees of the Yugoslav tribunal have been
taken into custody in The Hague. Some arrived voluntarily. Others
were apprehended by SFOR. Still others arrived by action of
national authorities in other countries. Eighteen named
indictees, some of whom were in custody, have had charges
dismissed against them. As of today, 27 indictees are in custody
in The Hague. They include some of the highest-ranking military
leaders on the Bosnian Serb and Bosnian Croat sides. Thirty
public indictees remain at large. Among them, of course, are
Radovan Karadzic and Ratko Mladic. The three indictees charged
with killings at Vukovar, Croatia, in 1991 have long resided in
Serbia under the apparent protection of President Slobodan
Milosevic. Mladic, too, is believed to be living in Serbia.
Karadzic remains in Bosnia.

We share the frustration and impatience of those who want to see
those at large brought before the bar of justice in The Hague. We
have sought and continue to seek ways to pressure Milosevic to
transfer indictees residing on the territory of Serbia-Montenegro
to The Hague. We have met some resistance from governments that
do not wish to use sanctions to compel compliance by Belgrade.
But we will keep trying. Our position is unyielding on
Milosevic's obligation to transfer indictees to the Yugoslav
tribunal. With respect to Karadzic, he keeps running and hiding
and darting here and there to escape detection and apprehension.
But justice will catch up with him. As Secretary Albright has
often said, there is no statute of limitations on any indictee.
Radovan Karadzic would be well advised to surrender to tribunal
authorities, and mount a spirited defense in The Hague. A short-
sighted Karadzic will continue to jeopardize the safety of
himself and those around him and risk forfeiting the opportunity
to answer the charges against him.

Kosovo

The agony of Kosovo since last March represents the difficulties
inherent in seeking quick and effective enforcement of
international humanitarian law. U.S. efforts have been
unrelenting to seek a cessation of hostilities, to achieve a
peace agreement, and to open up access for the Yugoslav tribunal
to investigate alleged crimes falling within its jurisdiction. In
early August of last year we launched intensive efforts with our
NATO allies to approve the use of military force against Serbia-
Montenegro. Our effort, joined by other key governments, to
obtain a collective decision was realized in early October. In
the meantime, Kosovo burned and its civilian population suffered
enormously. In early September, first in Zagreb and then in The
Hague after failing to receive a visa from Serb authorities to
visit Kosovo, I spoke out publicly and in great detail about the
massive violations of international humanitarian law unfolding in
Kosovo, the jurisdiction of the Yugoslav tribunal, and the
necessity for Belgrade to grant the Yugoslav tribunal
investigators access to Kosovo. The United States and other
countries ensured that Security Council resolutions stipulated
these points as well. In November I finally was admitted to
Serbia-Montenegro and pressed the issue in Belgrade. Then I
traveled to Kosovo and witnessed first hand the victims of
killings, the massacre sites, and the obstinacy of Serb
authorities who refused to grant access to Yugoslav tribunal
investigators.

The U.S. Government has been cooperating fully and intensively
with the Yugoslav tribunal to provide information and analysis
relevant to violations of international humanitarian law in
Kosovo. Secretary Albright determined almost a year ago to
provide $400,000 in voluntary funds to facilitate investigations
in Kosovo by the tribunal. We have stated publicly many times
that we believe the tribunal should investigate wherever the
evidence leads.

My efforts have been relatively modest, but much hard work has
been done by many other U.S. and European officials who have
sought to bring both peace and justice to Kosovo. Combining
these, you quickly recognize that Kosovo is a paradigm of the
modern conflict and the extreme challenges it presents the
international community. Reaching a collective decision to
intervene with military force or to enforce international
humanitarian law requires extraordinary consensus-building
efforts that are time-consuming and problematic at best.
Ultimately powerful means of enforcement can be achieved. NATO
has demonstrated this, albeit after a long series of discussions
and decisions. The collective response mechanism--be it in an
alliance or in an international or regional organization--is not
yet capable of responding quickly and effectively enough to
prevent widespread killing and destruction of civilian property.
We are then confronted with the challenge of how to react
rapidly, and whether to do so unilaterally with all of the
difficulties that may present. While well-intentioned observers
often seek unilateral intervention as the necessary and immediate
response to mass killings and destruction in foreign countries,
achieving such an objective is an exceedingly difficult exercise
within any  government.

Iraq

Another area of concern to the United States in the enforcement
of international humanitarian law is the regime of Saddam
Hussein. Last week, the United Nations Security Council decided
to conduct three assessments of Iraq, in the areas of
disarmament, humanitarian affairs, and issues concerning Kuwait.
The United States supports the assessment process, and we look
forward to their conclusions.

As these reviews begin, we have an important touchstone. We do
not believe anyone can fairly judge Saddam's present intentions--
whether towards disarmament, Iraq's humanitarian needs, or Iraq's
neighbors--without regard to Saddam Hussein's past conduct. As
Secretary Albright has often said, Saddam Hussein is a repeat
offender. Saddam Hussein has committed war crimes on the Iraqi
people and on Iraq's neighbors to all points of the compass:
north, south, east and west. Our policy towards the Iraqi regime
is defined in part by our determination not to let its long
history of criminal conduct prevail. Let me describe to you what
we consider to be the "charge sheet" against Saddam Hussein:

Saddam Hussein came to power in 1979. In the course of the Iran-
Iraq War that began in 1980, Saddam Hussein's forces committed
war crimes and crimes against humanity through the use of poison
gas against the peoples of both Iran and Iraq. The use of such
weapons was prohibited by the 1925 Geneva Protocol, to which Iraq
was, and is, a party.

We believe that Saddam committed crimes during the invasion and
occupation of Kuwait in 1990-91, including crimes against the
Kuwaiti people, third-country civilians used as human shields,
and U.S. and coalition forces.

We believe that Saddam committed crimes during his campaigns
against the Iraqi Kurdish peoples in the late 1980s and early
1990s in northern Iraq.

We believe that Saddam committed, and continues to commit, crimes
against the Iraqi Shi'a peoples in his efforts to drain the
southern marshes, destroying the unique culture of the Marsh
Arabs.

And, just as importantly, Saddam's crimes are continuing to this
day. We believe that Saddam is continuing to commit crimes by
arresting and executing his political opponents, even those who
have opposed his tyranny through peaceful means. We have seen
reports, which Iraq will not let international observers
investigate, that dissidents have been executed in Basra and
Amara in southern Iraq, and at the Radwaniyan prison complex near
Baghdad. Opposition sources say that Saddam's forces recently
destroyed seven more villages in the southern marshes. The
civilian population--the old, the infirm, and women and children-
-were unable to flee, and they were taken as hostages to Baghdad.
A number of Saddam's recent victims have been religious scholars
whose only "offense" was to follow the dictates of God and their
own consciences, rather than the dictates of Saddam Hussein.

American and British patrols of the no-fly zones are intended to
enforce international humanitarian law. The origins of the no-fly
zones rest in the criminal conduct the Iraqi regime unleashed
upon the Kurds in the north and the Shi'a in the south. By
preventing the Iraqi air force from flying in the two zones, we
are essentially protecting peoples who are unquestionably under
threat by the Iraqi regime. And yet Saddam's propaganda machine
would have us believe that British and American air power is
somehow violating Iraqi sovereignty. Sometimes the enforcement of
international humanitarian law may well give rise to such
charges, but we trust that the international community knows the
difference between true enforcement and hypocrisy.

One incident stands out in the horror story of the abuses ordered
by Saddam Hussein. In 1988, Saddam's air forces dropped chemical
weapons on the Iraqi town of Halabja. Halabja's story was told on
"60 Minutes" through the work of a courageous British doctor, Dr.
Christine Gosden of the University of Liverpool. Dr. Gosden
examined hundreds of Iraqis, many of whom were children or were
not even born at the time of the 1988 attack. Her observations of
birth defects, cancers, neurological disease, and more show the
effects of Saddam's willingness to violate the prohibition on the
use of poison gas codified in the 1925 Geneva Protocol. The
Washington Post turned its entire Op-Ed page of March 11, 1998,
over to Dr. Gosden so that she could tell the world the
consequences of the actions of Saddam's forces on the Iraqi
people.

As horrible as it was, Halabja was only one of many towns
attacked by poison gas dropped by Iraqi forces, led by Ali Hassan
al-Majid, also known as "Chemical Ali."  Other victims of Saddam-
-Iraqi and Iranian--suffered horribly from chemical attacks.
Pictures of these victims show many with their skin literally
burned away by Saddam's weapon of choice. We don't yet know the
full extent of the lasting damage suffered by the Iraqi or
Iranian people as a result of Saddam Hussein's use of poison gas.
We do know that Saddam's use of chemical weapons has to be
characterized as criminal.

As an important first step in enforcing international
humanitarian law, there have been a number of efforts to document
the nature of Saddam's crimes. I went to Kuwait last May to see
for myself the evidence Kuwaitis have accumulated of Saddam's
crimes against the Kuwaiti people. I met some outstanding
prosecutors whose work in building case files should be followed
by others as a model for how such cases can be put together. A
research institute, the Center for Research and Studies on
Kuwait, has amassed an impressive battery of evidence of Iraqi
war crimes from captured Iraqi documents.

Thanks to the work of the Center and others, we can read today
the very plans that Saddam's forces used to blow up Kuwait's oil
wells. As Saddam Hussein's forces were forced to flee Kuwait in
1991, he ordered his forces to destroy or release into the Gulf
what turned out to be between 7 and 9 million barrels of oil.
Five hundred ninety oil well heads were damaged or destroyed: 508
were set on fire, and 82 were damaged so that oil and gas flowed
freely from them. The scene at that time can barely be described-
-photographs and films shot at that time show a black cloud that
literally turned day into night. I visited what must be regarded
as a war crime scene--the oil fields of Kuwait. Kuwait has done a
heroic job in restoring itself from this crime. Even so, some
seven years later, the damage remains. Pools of oil remain. At
one gathering station, where the oil from the wells was supposed
to be processed prior to being shipped to tankers, Saddam's
forces started a fire so hot it melted half-inch-thick steel like
candy. These were wanton acts of destruction of property not
justified by military necessity and carried out unlawfully and
wantonly. If ever there was a case of a gross violation of
military necessity and wanton destruction, this was the case.

Kuwait is but one source of evidence of Saddam's war crimes. A
second is an archive of 5.5 million pages of captured Iraqi
documents taken out of northern Iraq thanks to the efforts of
Human Rights Watch, the Senate Foreign Relations Committee, and
Peter Galbraith, later our ambassador to Croatia. These documents
deserve the careful study of scholars and, it may be hoped one
day, prosecutors. Many of these documents are cold and chilling--
orders for the deportation of one family, or the death of
another. Parallels between captured Iraqi documents from the
north and captured Iraqi documents from Kuwait should provide
important insights into the widespread and systematic nature of
the violations of international humanitarian law carried out by
Saddam Hussein and his forces.

These are examples of archives of captured Iraqi documents
outside of Iraq. My office has been inventorying archives of
documents, videotapes and other evidence that the U.S. Government
has on Iraqi war crimes. We are taking measures to insure that
this record becomes better known to the world at large.

As international attention is focused where it belongs--on
Saddam's criminal record--we can expect a reply from Saddam's
propaganda machine. We will simply point to our responsibility
and the responsibility of the international community to enforce,
and his responsibility to comply.

Another issue that has received a lot of attention concerns the
humanitarian needs of the Iraqi people. I want to say a few words
about this issue. The United States has worked with other members
of the Security Council to make sure that, under the oil-for-food
program, Iraq can sell enough oil to pay for the food, medicine,
and other humanitarian goods the Iraqi people need. Much of the
rest of this story, however, is not being told. Sanctions have
never prohibited or limited Iraq's import of food or medicine. As
an example of what actually goes on inside Iraq, we heard last
year from travelers to Iraq that Saddam gave double and even
triple rations to members of his Republican Guards and security
services, and their families. Given the size of the Republican
Guard and security services, this represented a considerable body
of supplies that should have gone to the Iraqi people as a whole.

Members of Saddam's immediate family, I should mention, received
unlimited rations.

Today, we understand that enormous amounts of medicines, ordered
by Iraq, sit undistributed in Ministry of Health warehouses. In
December 1998, the UN office that manages the oil-for-food
program reported that there were $287 million worth of medicines
and medical supplies sitting undistributed in Iraqi warehouses.
This represents on the order of a six-month supply. The Iraqi
government has refused proposed improvements in the average
Iraqi's food basket. The Iraqi government has promised for months
to order nutritional supplements for Iraqi children and other
vulnerable groups, but has failed to do so. The Iraqi government
has not taken advantage of $8 million set aside for high-protein
biscuits, and of 1,500 metric tons of therapeutic milk allocated
by the program, the Iraqi government has ordered only 259 tons.
It is possible that these problems are due to total ineptitude on
the part of the Iraqi government. There is, however, another
explanation. It is also possible that Saddam Hussein--the same
man who ordered poison gas to be dropped on Iraqi citizens, who
wiped out the Marsh Arabs' ecosystem, and who has ordered, and
continues to order, the tortures and executions of tens of
thousands of Iraqi citizens--is intentionally and cynically
engaged in the widespread and systematic manipulation of the
distribution of food and medicine for the purpose of increasing
the suffering of the Iraqi people.

A third issue concerns the fate of 600 missing Kuwaitis taken
prisoner by Iraq who have not yet been released or properly
accounted for. The Iraqis have been pressed by the International
Committee of the Red Cross to explain what happened to the 600
missing. Thus far, there has not been enough international
attention paid to the excuses Iraq has offered to explain the
fate of the missing. The lack of cooperation from Iraq on this
issue has been blatant and indefensible.

The idea that a large number of Kuwaiti prisoners simply vanished
into thin air simply does not pass the straight-face test.

We do not know the fate of the 600 Kuwaiti missing, but we do
know that Iraq has a basic humanitarian obligation to tell what
it knows--and to tell all that it knows. The Security Council
will be taking up this issue in an assessment panel announced
last week.

                    *          *          *

On January 7, the Saudi newspaper Al-Jazirah said "Saddam Hussein
and his clique ... deserve to be swept away by the international
community's will from ruling Iraq and to be tried by a special
international court on the basis of the same prerogatives that
the international community had when the Nuremberg Court was
formed."  It is telling that at the Rome conference on the
International Criminal Court, the most frequently cited example
of the need for an effective ICC was the need to prosecute future
Saddam Husseins. Those same governments and NGOs need to join
with us, and with others, to focus just as strongly on the
present Saddam Hussein as on some future one.

Rwanda

There has been in recent weeks a flurry of media commentaries
seeking to argue that the United States Government essentially is
implicated in the genocide of 1994 because of decisions reached
in New York on the size and mandate of the UN peacekeeping force
deployed to Rwanda at that time. In hindsight, different
decisions may have been merited regarding the UN peacekeeping
force in Rwanda.

Both Secretary Albright and President Clinton acknowledged the
international community's share of responsibility for the 1994
Rwandan genocide during their respective trips to Rwanda in 1997
and 1998. President Clinton said, "The international community,
together with the nations in Africa must bear its share of
responsibility for the tragedy. We did not act quickly enough
after the killings began. ... We did not immediately call these
crimes by their rightful name: genocide." By May 14, 1994, the
United States strongly supported what became UN Security Council
Resolution 918, expanding the mandate of the UN Assistance
Mission in Rwanda (UNAMIR) to contribute to the security and
protection of displaced persons, refugees, and civilians at risk
in Rwanda, including the establishment and maintenance, where
feasible, of secure humanitarian areas, and authorizing a force
level of 5,500 troops. The United States mobilized an enormous
humanitarian effort in the summer of 1994 and we helped lead the
UN Security Council in the establishment of the International
Criminal Tribunal for Rwanda.

But the current spate of commentaries is generating a number of
cheap shots that are unwarranted. The United States already has
made clear its support for the International Panel of Eminent
Personalities, established by the Organization of African Unity,
which is investigating the context in which the 1994 Rwandan
genocide took place, from the Arusha Accords of 1993 through the
fall of Zairian President Mobutu in 1997. I have already met with
the Executive Director of the OAU Panel in Addis Ababa. The OAU
Panel plans to visit the United States and to meet with U.S. and
UN officials, as well as other relevant diplomats in New York, as
part of its inquiry. We intend to cooperate fully with the Panel
so that it can complete its report by the end of this year.

The Clinton Administration also has taken several initiatives to
help reduce the threat of resurgent genocide in the Great Lakes
region, and to improve the ability of the international community
to deal with genocide should we again have to face that task. We
have been hard at work launching the Great Lakes Justice
Initiative and the International Coalition Against Genocide for
the Great Lakes Region. Through the Great Lakes Justice
Initiative, the United States will help counter the culture of
impunity that has spawned so much violence in the region. The
International Coalition Against Genocide is designed to bring
states together to work systematically to prevent and counter
genocide. Both initiatives have a very long way to go before they
can be deemed effective. But $25 million has been programmed for
justice projects in the Great Lakes region and we are actively
consulting with key governments on building an effective
coalition against genocide in that region.

Further, as the President announced on December 10th, we have
launched within the U.S. Government mechanisms to facilitate
early warning of atrocities and to consider means to prevent or
respond to them as quickly and effectively as possible. This is a
tall challenge--one that will take time to fully establish--but
as head of the inter-agency group working this project, I am
determined to craft a working system that can carry on long after
the end of this Administration. Based, in part, on the work
emerging from these new mechanisms, next week I travel to Sierra
Leone to investigate the atrocities occurring there. A primary
objective of my trip is to raise the visibility of the Sierra
Leone crisis in order to encourage additional financial
contributions to the regional military force, ECOMOG, which
desperately needs more assistance to throw back the rebel forces.
We also are compiling a large amount of information about
reported atrocities in the Democratic Republic of the Congo and
are using it not only to seek an end to further atrocities
through a peace settlement among the warring parties there, but
also to make such information available for future investigations
that may lead to accountability.

Khmer Rouge

The enforcement of international humanitarian law for the crimes
of the Pol Pot regime in Cambodia remains a key objective of the
Administration. It has not been easy to achieve. We are
consulting closely with other governments to ensure that the
senior Khmer Rouge leaders are brought to justice. We believe
that an international tribunal established by the Security
Council, with the full cooperation of the Cambodian Government,
would be an effective means to accomplish this objective. We will
study with great interest the report of the UN Group of Experts
on this subject when it is released.

International Criminal Court

The Clinton Administration long supported the goal of a permanent
international criminal court as an effective means of enforcing
international humanitarian law. We continue to have a deep
interest in achieving that goal. But we do not believe that the
treaty that emerged from the Rome negotiations last summer best
serves the purposes of effective enforcement of international
humanitarian law. Indeed, the treaty holds the potential of
inhibiting the enforcement of international law by the very
countries most capable and willing to use military force for the
protection of human rights.

We believe the problems that we have identified in the treaty can
be solved. I will lead the U.S. delegation to the Preparatory
Commission session this month in New York where the elements of
crimes and the rules of evidence and procedure will be examined
by experts. The United States is submitting a proposal for the
elements of crimes that is comprehensive and will be essential to
the effective enforcement of the crimes in the treaty. We look
forward now to consultations with other governments to address
our fundamental concerns about the treaty. The advantages of full
U.S. participation in the treaty regime far outweigh the
perceived advantages of a dubious jurisdictional concept
suggested by the treaty text.

Protocol II and the Hague Convention for the Protection of
Cultural Property

It is significant to note that under the leadership of the United
States and other governments, the Rome Treaty incorporates
important principles of law relating to internal conflicts and
internal atrocities. Professor Meron, who was on the U.S.
delegation in Rome, was instrumental in our effort. Most of the
conflicts in the world today are internal conflicts between armed
segments within countries. Around 90% of the casualties of these
internal conflicts are noncombatants. Women, children, elderly
citizens, international aid workers, representatives of private
non-governmental agencies, and many other innocents have been
injured or killed. Many of these conflicts involve gross and
deliberate violations of human rights.

I am pleased to report that a few weeks ago President Clinton
reiterated his support to the Senate for the prompt approval of
Protocol II Additional to the Geneva Conventions of 1949, which
former President Reagan transmitted to the Senate for advice and
consent to ratification in 1987 but which has not been acted
upon. President Clinton wrote on January 6th of this year that
"[i]nternal conflicts have been the source of appalling civilian
suffering, particularly over the last several decades. Protocol
II is aimed specifically at ameliorating the suffering of victims
of such internal conflicts and, in particular, is directed at
protecting civilians who, as we have witnessed with such horror
this very decade, all too often find themselves caught in the
crossfire of such conflicts. Indeed, if Protocol II's fundamental
rules were observed, many of the worst human tragedies of recent
internal armed conflicts would have been avoided. Because the
United States traditionally has held a leadership position in
matters relating to the law of war, our ratification would help
give Protocol II the visibility and respect it deserves and would
enhance efforts to further ameliorate the suffering of war's
victims--especially, in this case, victims of internal armed
conflicts."

We hope the Senate will be able to act soon on the President's
request.

Also on January 6th the President transmitted to the Senate for
its advice and consent to ratification the Hague Convention for
the Protection of Cultural Property in the Event of Armed
Conflict, which the United States signed in 1954, and for
accession the related Hague Protocol. The wanton destruction of
civilian, including cultural, property in modern warfare has not
abated. We believe that U.S. ratification of this important
treaty, already joined by 80 other countries, will send a strong
signal of enforcement to those who wage indiscriminate warfare.

Convention on the Safety of United Nations and Associated
Personnel

I also want to stress the importance to the United States
Government of the Convention on the Safety of United Nations and
Associated Personnel, which entered into force on  January 15th
of this year. The United States signed the Convention on December
19, 1994, and has been fully supportive of its goals from the
time of its negotiation. We are actively working towards becoming
a full party to the treaty.

Department of Defense Renews Requirement to Report Atrocities
Observed by U.S. Forces

Successful enforcement of humanitarian law requires the
commitment of nations, but prosecutions must ultimately rely on
accurate information. The Atrocities Prevention Inter-Agency
Working Group will be a focal point within the U.S. Government
for identifying and coordinating policy responses to atrocities.
Our armed forces deployed throughout the world will remain an
integral part of our efforts to identify violations of
international humanitarian law and to contain the spreading
conflicts that are the backdrop for those who ignore their legal
obligations. The Department of Defense recently issued a
directive applicable to all United States armed forces. The
directive requires that all possible, suspected, or alleged
violations of the law of war be documented and reported quickly.
The military commanders on the scene now have a specific duty to
take steps to preserve evidence of violations, which will then be
transmitted to appropriate authorities.

Conclusion

I have tried this evening to survey the ways in which the United
States Government is determined to advance the enforcement of
international humanitarian law. The world will remain a turbulent
place, and none of this will be easy. I hope I have given you
some idea of the challenges that confront us. Some of you, in the
future, will have the opportunity to help the international
community address these challenges. We must make every effort to
ensure that the worst crimes of the twentieth century are not
repeated in the twenty-first.


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