The Diplomat and the General: No Easy Answers on Ending War Crimes

UCLA Today

Just how aggressive does an act of war have to be before it’s labeled a war crime? How well can the international diplomatic community legislate war crimes, and how well can the International Criminal Court (ICC) achieve effective enforcement when certain nations — the United States among them — continue to reserve the right to opt out?

These thorny topics made for lively conversation between former U.S. Ambassador David Scheffer and General Wesley K. Clark (ret.), who appeared at the School of Law on Sept. 27 for the panel discussion, “Is Aggressive War a Crime? The International Criminal Court and the Future of International Justice.

Scheffer served as the first U.S. Ambassador-at- Large for War Crimes Issues during the Clinton administration. Clark served as NATO’s supreme allied commander in Europe — most significantly, during the Kosovo War from 1997 to 2000 — under Clinton. Clark is also a senior fellow at the Burkle Center for International Relations, which joined the UCLA International Human Rights Program in co-sponsoring the event.

Scheffer, whose impressive background in law and diplomacy includes the leadership of the U.S. delegation to the talks that established the ICC, approached the topic of aggressive war from a theoretical and procedural perspective. Last June, he attended the historic Review Conference on the Rome Statute of the International Criminal Court in Kampala, Uganda. In this first-ever review of the 1998 Rome Statute — the agreement which formed the basis of the ICC as an independent international tribunal — delegations from around the world met to consider a definition of the crime of aggression and how it might be prosecuted.

The tremendous difficulty of arriving at a definition of aggression was clearly evident during the conference, Sheffer said.

“When we try to define aggression, we get 60 different opinions,” he said. “Like terrorism, we can’t seem to agree what aggression means internationally.”

With considerable input from the U.S., Scheffer said, the delegates ultimately settled on a definition of aggression as criminal act: The planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

But given that every rule has exceptions, Scheffer noted that delegates also had to consider potential exemptions to the definition they had worked so hard to fine-tune. Exceptions, for instance, might include aggression as self-defense or as part of a humanitarian intervention.

Delegates also expressed concerns about degrees of magnitude, which are difficult, if not impossible, to test for — a situation that may tempt countries to file frivolous claims with the ICC, charging acts of criminal aggression when, in fact, their real aim is to exact political revenge on enemies. Ultimately, the decision was made to rely on judicial discretion to resolve these potential problems. Said Scheffer: “Judges become determinants of aggression because they don’t have to follow politics.”

Although the Kampala resolutions comprise a significant achievement, Scheffer said, one enormous caveat could overshadow their apparent success: Nations can choose to opt out — the United States, China, Turkey and others chose not to be governed by these statutes. In effect, the U.S. successfully protected its own interests even as it participated actively in the Kampala discussion, Scheffer said, adding that things may get more complicated if one of our country’s NATO allies signs the treaty.

Clark, responding to Scheffer’s remarks, expressed deep skepticism about the Kampala agreement and the power of international law — which he noted is notoriously slow-moving — to settle disputes around the world.

“This agreement is like Swiss cheese,” Clark said. “It can be tightened up and should be tightened up.”

American exceptionalism — although very popular among American citizens — is exceptionally problematic when it comes to enforcing the international agreement, Clark noted.

“It’s always a hot-button political issue,” Clark said. “Which takes precedence? International law or U.S. law?”

Clark cited several cases where the United States had engaged in what normally would be considered violations of international law, but which were, in Clark’s view, “coercive diplomacy.” Among these were the removal from power of Chilean President Salvador Allende and Argentina’s Che Guevara. America’s military intervention in Kosovo in 1999, as well as several current interventions in Iran, also typify this approach.

The United States escapes sanctions for these actions, Clark said, because it sees itself as being above the rule of international law and is powerful enough to convince others of the same.

“This is a country that is prone to war,” Clark said. “We do a lot of things that we think are in our defense, but when we claim American exceptionalism — it’s not an eternal solution.”

America, Clark said, will not always be the only superpower — “taking land and getting what you want.”