Ambassador Scheffer Lectures on the Modern Challenges of International Law

The Whitney R. Harris World Law Institute recently welcomed Ambassador David Scheffer to the law school to discuss the modern challenges of international law. Scheffer is the first U.S. Ambassador at Large for War Crimes Issues and author of All the Missing Souls: A Personal History of the War Crimes Tribunals

In his talk, Scheffer provided a preview of three major areas of his work soon to be published, and a fourth issue that recently appeared in the journal, Ethics & International Affairs. “There are so many challenges confronting international law today,” Scheffer said. “It’s an unending process.”

Scheffer’s first topic highlights the principle of the responsibility to protect, which holds that while it is primarily the obligation of each nation to protect its own citizens from “atrocity crimes,” the international community has the responsibility to intervene—preferably non-militarily—if that nation is unable or unwilling to do so.

Scheffer said that while this is a powerful principle—codified in 2005 by the United Nations (UN) General Assembly—it has been difficult to apply. “In my view, we have to admit that it is a very incomplete formula,” he explained. In part, “the responsibility to protect is a negotiated formula,” created to seek consensus, but in the final analysis it is dependent on the UN Security Council authorizing military action.

In the case of Syria, for example, more than 130,000 people have been killed and more than 1 million displaced, but without the Russian or Chinese vote the international community is left “out in the cold” from intervening in this situation. “As lawyers, I think it is incumbent upon us to revisit the responsibility to protect formula and to think about how we can bring principles of international law that we have known for a long time, centered around the concept of humanitarian intervention, back to the fore.”

He also discussed the enormous burden the consequences of atrocities place on the international community as it seeks the resources to cover the enormous cost of prosecuting crimes against humanity. “I raise about $30 million a year to fund the Extraordinary Chambers in the Courts of Cambodia (ECCC),” he said. “That is an incredible burden, and the money is critical. I have concluded that the system of funding the courts is not a rational system.”

Scheffer noted that he has teamed up with an international law firm to work on revising the formula for funding international criminal courts and tribunals that relies more on a private market solution, like the sale of bonds. He believes his proposal will allow countries to pay less into the courts than they are paying today. “I think there is a way to fix this problem, and I have engaged the international community to do so,” he said.

Scheffer has also been proactive in addressing the challenge of finding and arresting war criminals. His “International Criminal Court Arrest Procedures Protocol” would establish a protocol supervisory group charged with assembling the specialists needed to capture indicted fugitives. However, the success of such a group would be contingent upon there being an indicted fugitive, and upon the willingness of the government to allow a group of outside experts into the country to do this work.

Finally, Scheffer identified another challenge, the problem of corporations that shift profits to different countries to avoid paying taxes. Because discontinuing this practice “goes against the grain of what international lawyers and accountants do,” Scheffer said that it will require not only a change in culture and thinking, but also an addition to the UN Global Compact. “In my view, we need an 11th principle—in addition to those of human rights, labor standards, the environment, and anti-corruption—to stop tax avoidance,” he said. This last point is the subject of his article in Ethics & International Affairs.

Scheffer concluded by stating that while “the International Criminal Court (ICC) has a long life ahead of it,” the international legal community should not underestimate the role of ad hoc methods of seeking justice, like military tribunals. This is especially true for the United States, which is not part of the ICC and sees a benefit in more regionally-focused tribunals. “There is still a future for ad hoc tribunals. In as much the ECCC has had its share of critics, don’t underestimate domestic courts being internationalized for purposes of very specific atrocity crimes prosecutions in the future,” he said. 

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By Timothy J. Fox, Spring 2014