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War Crimes
and the Clinton
dministration
1 of the Treaty between the United States of America
and the C herokee Nation, dated July 22, 1779, reads: That all
offenses or acts of hostility by one or e ither of the con tracting par-
ties against the other be mutually forgiven and buried in the
dep ths of oblivion, neverm ore to be had in rem em brance. Th at
is how as a country we started, in terms of our relations with the
most obvious acts of atrocities confronting us at that time, which
involved N ative Am ericans, and that is how we chose to dea l v«th
them in 1779: obli\'ion. I believe we have come a very long way
since then, in part by recognizing all of the mistakes we have
made.
One of the origins of international law can be traced to a Span-
ish scholar by the nam e of Franciscus d e Victoria, who in the six-
teenth century decided that he would examine the treatment of
Native Am erican by the Spanish co nqu istadors. His treatise on the
subject was a foundation for the actual drafting of treatises on
internation al law from that po int forward. So we need to remem -
ber that America was the starting point for this process in inter-
national law, and that our own history of atrocities has been a
founda tion for so much of what has occu rred in internation al law.
It is no t ju st the Native Americans, of course, who have been
the victims of ethnic cleansing. There have been other contro-
versial episodes in American history: slavery; tbe actions of Gen-
erals Sheridan and Sherman during the Civil War (including
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1110 SOC IAL RESEARCH
ing World W'^r II; the atomic bombs dropped on Hiroshima and
Nagasaki; many of the military actions taken during the Vietnam
War; and the bombings of Cambodia in the early 1970s. It is
important that we recognize that the state of the law at each of
these periods in our histor\'
was
in developm ent and was not as it
is today. That is an extremely important qualifier, in terms of how
we look back at the responsibility' of individuals for crimes com-
mitted in this countr)'s past. Their presumed illegality today may
not have been so apparent to those involved at tbe time tbese
actions were being taken—particularly, for example, actions
taken during the Ci\il War.
y
immediate concern in this essay is with the past decade and
the future. During the 1990s there was a phenomenal grovrth in
international criminal tribunals and in the law itself Elsewhere in
this volume, Kenneth Roth, Patricia Wald, and Aryeh Neier dis-
cuss the tribunals, so here I will attempt to address some addi-
tional issues.
A troubling and persistent allegation is that the ad hoc inter-
national war crimes tribunals were acts of tokenism, that some-
how because of America's failure to react to the actual
commission of atrocities, the tribunals stand as our token
response to all such atrocities. It has been argued that the United
States and its allies pushed aside the military option and simply
pursued the legal option. But while this was occurring, in 1993
and 1994, with respect to the Yugoslav and Rwandan tribunals,
and in th e last few years with respect to Sierra Leone, th e consid-
eration of
a
legal instrum ent of accountability actually took place
on a fairly separate track of
discussion.
I did not find officials, par-
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WAR CRIMES AND CLIN TON 111 1
legal option we can pursue here . Rather, the military op tion was
fiercely debated, and usually discarded, on its own merits. One
can criticize the United States government for not taking military
action, and I jo in in much of that bu t it is a flawed argument that
the ad hoc tribunals were somehow tainted or und erm ined by the
absence of parallel m ilitar)' action . Frankly, this risks becom ing a
self-fulfilling observation by commentators an d scholars, which I
hope TOU be shown by historians not to be tru e.
The real issue is our willingness to use military force quickly
and forcefully enough to stop the killing. Whether we do that or
not, the issue of accountability rem ains. But on the issue of using
force we made m any mistakes during the C linton adm inistration.
Why we did n ot make th e decision quickly enough to use military
force in so many situations—until, as Samantha Power (2002)
writes, Kosovo finally kicked us into high gear on that issue—is a
fascinating story that I think historians are going to be writing for
a long time, especially s the archives open up 20 to 25 years from
now, demonstrating how decisions were made, moment by
moment, in the administration. I would simply say that from my
vantage point, flrst working for Ambassador Madeleine Albright,
and being on the Deputies Committee of the National Security
Council during these horrific events in Rwanda and Srebrenica
and then being ambassador at large for war crimes issues during
the second term of the Clinton administration, there were influ-
ential voices within the administration opposed to using force.
It was no t that everyone was saying, Let's not do it. The re
were, in fact, fierce debates raging. There were people trying to
nudge the system forward, trying to fight the bureaucracy, trying
to persuade incredible skeptics that something had to be done.
But the federal bureaucracy is an enormously powerful entity in
and of itself and it can wipe out arguments in favor of humani-
tarian intervention. There are innumerable ways to kill those
arguments in the bureaucracy, and we have to understand that
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1 1 1 2 S O C I A L R E S E A R C H
State Depar tment , the National Secur i t ) ' Council , the Just ice
Depar tment , and v\ i thin the inte l l igence community—unless this
lead ersh ip is focusing on this issue an d saying, Th at 's the r ight
pol icy, an d we can make it ha pp en , the n the bo t tom -up
approach to responding to genocide v\il l often be a totally futile
exercise.
I wo uld like briefly to discuss gen ocid e as a term . Sam an tha
Power writes abo ut this verv' well in h er b ook , abo ut the tor tuo us
pa th th at the bure au crac y took v\ith this wo rd, particularly reg ard-
ing Bosnia , an d th en on the Rw andan si tuat ion in 1994. T he re is
an issue of criminal intent involved in genocide. I t is one of the
issues the tribunals labor over intensely—namelv-, how to deter-
mine that level of criminal intent with genocide. I t can take years
to f ind so m eo ne guilt>^ of ge no cid e, or per ha ps to acq uit so m eo ne
v\ith respect to it . So there is, I think, a healthy recognition that
genocide is a pret tv ' tough word and a tough cr ime to prosecute .
Reg arding t he Kosovo exp er ien ce, I bel ieved that we ne ed ed to
get the a ler t out that something was happening and that i t was
r inging some bel ls on the word genocide.
W e
knew we m ay b e
proved wTong in the end and that technically, from the legal
point of view, genocide did not occur , but we decided that i t was
ind eed accu rate , and im po rtan t to issue a w arning that , as I cal led
it, the
indic tors of genocide
ap pe ared to be presen t . So we decid ed
to set off some alarm bells as to what it might mean over the fol-
lowing weeks in th at con flict if w le t these indicators of gen ocide
con t inue .
However, I would go further, and argue strenuouslv-, even
thotigh I know this is a l i t t le bit heretical, that we must not be
obsessed v\ith th e term gen ocid e. I m ake this po in t as an advo-
cate for h um an r ights , for intern at ion al law, an d for intern at ion al
criminal law. If we are so obsessed, we will, ironically, stunt the
abilitv^ of gov ern m en ts to re act to th ese crim es. W eeks can pass by
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WAR CRIMES AND CLIN TO N 11 13
decided whether or not a crime constitutes genocide, and in the
final analysis, the courts decide precisely what crime occurred.
In terms of our responsibility to respond to crimes that are
being committed, I flnd it much more facilitating, within a
bureaucracy, to argue simply that crimes
g inst hum nity
are
occurring. Crimes against humanity can be of far greater dimen-
sion than genocide. Criminal conduct may be occurring on the
grou nd that leads to mass killings or to mass expulsions. Criminal
conduct of this character must be responded to. We cannot have
a strategy tha t requires us flrst to determ ine w hethe r genocide has
occurred and then figure out what our responsibility is to respond
to genocide. I tried to instill, certainly in the Kosovo conflict of
1999,
the notion that, while we can talk about genocide, there
were crimes against humanity and war crimes being committed
on a vast scale that required and legitimized a military response
to try to discourage Belgrade from con tinuing the commission of
those crimes. I ho pe this becomes mo re the norm , so that w talk
about these crimes with terminology that is more useful.
For this reason, I have proposed a new categor)' of description
for the crimes that are of central concern to the international
criminal tribunals: Yugosla\'ia, Rwanda, Sierra Leone, the Inter-
national Criminal Court, and others. That category of crimes is
atrocity crimes l introduce the term because no other term accu-
rately describes the law of the tribunals as a totality. International
hum anita rian law, interna tional criminal law, and interna-
tional hum an rights law are all much broa der than what we see
in the tribunals . Military law is much too confining. And seri-
ous crimes un de r internationa l law is so \ag ue a term that w do
no t know what we are talking about. Atrocity is a far m ore use-
ful word. Atrocity crimes, and the coun terp art te rm , atrocity
law, would deal with crimes tha t are of significant magn itude,
each o ne of which is a crime und er international criminal law, but
of a peculiar character that is being shaped by the tribunals year
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1114 SOC IAL RESEAR CH
quickly than allegations of violations of international humanitar-
ian law (Scheffer, 2002: 389).
I would like to briefly address some issues arising from Amer-
ica s responses to atrocities. Perhaps the best w y to describe what
we did in Rwanda in 1994 is to say tha t
we
acted conventionally to
an unconventional crisis. As many as 8 000 people a day were
being hacked to death in Rwanda. That is unconventioned. It is
not even a normal aXiocixy: it is beyond all sense of comparison.
We need a response mechanism that recognizes when unconven
t on l think ing is called for. WTiat ha pp en ed in W ashington, how-
ever, was that traditional constraints were brought to bear on a
totally untraditional, unconventional problem, and that set us
back weeks in term s of framing a response . The real lesson of that
crisis. I think, was that Rwanda was not, technically speaking, a
legal failure of ours under the Genocide Convention, but a vast
political failure on the part of our systems to respond adequately
to that crisis.
In July 1995, we were faced with the massacres near Srebrenica
in Bosnia and Herzegovina. The challenge, again, was the top-
dowTi requirement of how a nation like the United States
responds to a situation like this. Months before the Srebrenica
massacres occu rred, a high official stated, in an im portan t setting
in Washington, that we can sacrifice the safe areas in Bosnia. His
point w s tha t there were bigger issues to deal with in the Balkans.
That set a tone and established a framework. When Srebrenica
suddenly occurred, we were fighting against that tone and frame-
work, arguing that in fact saving Srebrenica does matter, and
Zepa, which w s the next one , and G orazde, which followed Zepa.
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WAR CRIMES AND CLIN TO N 111 5
ducted over Kosovo and Serbia during those critical months in
1999.1 do not think
w
can justiflably defend the unfe ttered right
to persist in an air campaign, no matter how sophisticated the
weaponry, without considering the ground option to get the job
do ne strictly in accordance with the law of war. A poin t w ll com e
during the air campaign where soldiers are needed on the
ground— adm ittedly, who will take a risk—to be tter targe t what is
being hit and to take out targets on which air power should not
be used, especially dual-use targets (such as power plants, for
exam ple), where military applications need to be neutralized but
civilian uses that may be critical need to be preserved, if possible,
within the constraints of military necessit) .
At the en d of 1998, President Bill Clinton created the Atrocities
Prevention Interagency Working Group, which I led. For
tw
years we did a great deal of work on the issue of how to prevent
atrocities: How do we recognize a situation on the horizon as a
killing situation, requiring more than conventional conflict pre-
vention analysis? With an atrocity on the horizon, what can actu-
ally be done to get involved soon enough to prevent it? We met
with a great deal of resistance to the project. The intelligence
communit) , to its credit, was qu ite en thused abou t it, and pro-
vided us with information and analyses for which we were grate-
ful. I often found, however, that intelligence did not get the
necessary support from the top-down, with the result that they
lacked the resources and staff that would make atrocities preven-
tion work the best that it could possibly be. This is a fundam ental
problem to be addressed.
I would like to conclude by discussing the United States posi-
tion at the Rom e diplomatic conference held between Ju ne and
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1116 SOC IAL RESEARC H
crippling concern for the United States, since it eliminated the
possibility of potential reservations as a way to frame problem
issues for W ashington to decide later. Treatv reser\ ation law,
allowing flexihilitv without killing a treat) , is a long , rich, and
deep tradition in international law, and I believe we need to be
able to examine and consider it. Unfortunateh^ time constraints
made it impossible to build the necessary consensus with the Pen-
tagon, State Department, and other involved agencies. But in the
two years that followed, we did not walk away from the process.
The U nited States delegation join ed the consensus on the rules of
procedure and exidence and on the elements of crimes in June
2000, and we did so with great intent. WTiile there were some
issues that remained unresolved at the end of 2000, President
Clinton was con\dnced that it was a document that should have
the United States signature on it. I hope that the United States
acts smartly about this now.
There are many steps the United States can take now, unilater-
ally, to position itself to be more comfortable with the Interna-
tional Criminal Court. We need to re\ise Title 18, the federal
criminal code, and Title 10, the United States military code, so
that the United States has a domestic law that properly incorpo-
rates ICC crimes. With these re\isions, if American authorities
want to prosecute these crimes, the ICC jud ges will recognize that
we have the capabilitv to do so. Eor some of these crimes we do
not currently have that capabilit), so we are needlessly at risk.
Even opponents to the ICC should want to enact such amend-
ments to th e federal and militar) codes, but do ing so will take ini-
tiative in Washington.
The United States also needs to stay at the table. The Bush
administration has now walked away from the table, away from
the right to negotiate the definition for the crime of aggression,
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CRIMES AND CLINTON 1117
away from those responsibilities is egregious conduct, and it
should be called to account for it.
References
Power, Samantha.
A
roblem
rom Hell : America nd
the
A ge of Genocide.
New York: Basic Book s, 2002.
Scheffer, David. The Future of Atrocity
Law. Suffolk Transnational Law
Review 25 Sum mer 2002) : 389.
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