War Crimes and the Clinton Administration

ARTICLE 1 of the Treaty between the United States of America and the Cherokee Nation, dated July 22, 1779, reads: “That all offenses or acts of hostility by one or either of the contracting parties against the other be mutually forgiven and buried in the depths of oblivion, nevermore to be had in remembrance.” That 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 Native Americans, and that is how we chose to deal with them in 1779: oblivion. 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 Spanish scholar by the name of Franciscus de Victoria, who in the sixteenth century decided that he would examine the treatment of Native American by the Spanish conquistadors. His treatise on the subject was a foundation for the actual drafting of treatises on international law from that point forward. So we need to remember that America was the starting point for this process in international law, and that our own history of atrocities has been a foundation for so much of what has occurred in international law. It is not just the Native Americans, of course, who have been the victims of ethnic cleansing. There have been other controversial episodes in American history: slavery; the actions of Generals Sheridan and Sherman during the Civil War (including General Grant’s order that the Shenandoah Valley be made a “desert as high up as possible”); the firebombing of Dresden durSOCIAL RESEARCH, Vol. 69, No. 4 (Winter 2002) War Crimes and the Clinton Administration BY DAVID SCHEFFER ing World War 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 history was in development 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 committed in this country’s past. Their presumed illegality today may not have been so apparent to those involved at the time these actions were being taken—particularly, for example, actions taken during the Civil War. My immediate concern in this essay is with the past decade and the future. During the 1990s there was a phenomenal growth in international criminal tribunals and in the law itself. Elsewhere in this volume, Kenneth Roth, Patricia Wald, and Aryeh Neier discuss the tribunals, so here I will attempt to address some additional issues. * A troubling and persistent allegation is that the ad hoc international war crimes tribunals were acts of tokenism, that somehow 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 the last few years with respect to Sierra Leone, the consideration of a legal instrument of accountability actually took place on a fairly separate track of discussion. I did not find officials, particularly in meetings, ever admitting—they may have been subconsciously thinking of this, but they certainly were not saying—“We can set aside the military option, because we have a 1116 SOCIAL RESEARCH legal option we can pursue here.” Rather, the military option was fiercely debated, and usually discarded, on its own merits. One can criticize the United States government for not taking military action, and I join in much of that, but it is a flawed argument that the ad hoc tribunals were somehow tainted or undermined by the absence of parallel military action. Frankly, this risks becoming a self-fulfilling observation by commentators and scholars, which I hope will be shown by historians not to...