All the Missing Souls: A Review

Between 1993 and 2009, roughly $3.43 billion has been spent on international war crimes tribunals by the international community. This is equal to the cost of two weeks of American military operations at the height of the war in Iraq, or about 17 percent of cash bonuses paid out by Wall Street firms in 2008, writes David Scheffer. The question of whether “it is worth the effort,” whether the close to four billion US dollars spent on international justice can be considered money well spent is the philosophical and moral question Scheffer explores in his recent book All the Missing Souls – A Personal History of the War Crimes Tribunals.

What do you get for $3.43 billion? Two hundred and sixty-six indictees surrendered or captured; 21 fugitives remaining on the run; 131 defendants tried and convicted with 20 acquitted; 45 defendants on trial; 12 waiting for the beginning of their trials; and 44 indictees, either dead or with indictments withdrawn before the beginning of their trials (at the time of the writing of the book in mid 2011). The Nuremberg and Tokyo tribunals in 1945 prosecuted 22 and 28 defendants, respectively.

Through his years of government service, Scheffer played a key role in the international effort to create the institutions to prosecute atrocity crimes. Between 1993 and 2001, he served as counsel to Madeleine Albright when she was US Permanent Representative to the UN and later as Albright’s Ambassador at Large for War Crimes Issues when she became Secretary of State. Because of his roles, Scheffer’s book reads like a comprehensive negotiation history of the creation of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), the International Criminal Court (ICC), the Special Court for Sierra Leone (SCSL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC).

To say that Scheffer’s job wasn’t an easy one is an understatement. While international negotiations themselves were difficult, convincing elements of the US government and President Bill Clinton was often much harder. When, at last, agreement could be found among the Washington principals, it came at a significant price. “There was blood on the floor of the tank over this, David, and no one likes you anymore,” said one Washington official describing the effort required to secure buy-in from the US military for provisions concerning the prosecution of non-state party officials during the negotiations of the Rome Statute of the International Criminal Court in 1998.

Scheffer’s description of his experience is a very personal one. Often, he will let the reader share in his frustration of yet another futile policy debate or the agony over the intransigence of some official. His emotions are the most compelling when he describes the policy failures which led to the Rwandan genocide and the massacres in Srebrenica; his personal responsibility and sense of guilt for these failures; and his subsequent motivation to ensure that systems be put into place that deter such crimes from occurring in the future and that bring perpetrators to justice.

In the final section of the book, Scheffer develops a definitional and procedural framework around the concepts of atrocity crimes and atrocity law. He argues convincingly that the international courts and tribunals work within a special legal framework–atrocity law–that is comprised of elements of international criminal law, international humanitarian law, international human rights law, and the laws and customs of war. Correspondingly, Scheffer proposes referring to war crimes, crimes against humanity, and genocide as “atrocity crimes.”

The aim and the intended result of these terms is to shift attention away from the terms itself, to simplify their meaning and their implications, and to shift attention on action. In Rwanda, a lot of time and energy was wasted on determining whether genocide was in fact occurring, and the international community collectively shirked its responsibility to stop the crimes.

That is why Scheffer argues that “Violent humanitarian catastrophes may require unorthodox responses, speedy and innovative policy-making, and determined efforts to focus political will on the imperative of human survival. Atrocities do not wait for well-briefed discussions in regularly scheduled meetings of high-level officials. Atrocities do not fit well within rigid guidelines for policy-making. Atrocities, or the imminent launch of such atrocities, scream out for immediate, imaginative, and bold actions tailored to the unique threat. Timing is everything.”

Expecting courts to prevent atrocity crimes from occurring in the future, and to comprehensively satisfy, through the administration of criminal justice alone, the needs of victims, is not realistic. Yet, Scheffer is right when he says, “There is no turning back.” The international community has turned a page, and, instead of granting immunity to leaders who are responsible for grave crimes, it is more and more often making efforts to bring them to justice.

Till Papenfuss is a Policy Analyst at the International Peace Institute. He can be followed on Twitter at @tijopa