Speaker: David J. Scheffer, Northwestern University School of Law


Then we come to the new world, 1993 onwards, and we have the five major international courts—one of them, of course, in Cambodia, is actually literally a domestic court, but internationalized—being negotiated throughout that decade. We had a transformational event institutionally, actually creating the bodies that had the capacity to investigate and prosecute atrocity crimes. We also had some UN courts ultimately established in Kosovo, in East Timor. We have domestically in the last decade war crimes chambers that have been very active in Sarajevo, in the domestic courts, and even in Zagreb and in Belgrade. So very impressive developments over the last 17 years.

I think we have seen the beginning of the end of impunity, leadership impunity. There's still a lot of it out there. We see it play out every day. But we also see justice play out every day with respect to a whole range of top leaders who have now been either brought to justice or are under indictment. I think that is extremely significant.

We have a much more sophisticated understanding of atrocity crimes now through the jurisprudence of the tribunals. Believe me, there's a whole legal academy now that survives on this, literally. We know rape as genocide. We know what it means to aid and abet genocide now. We know what the gravity requirements are for these crimes, the magnitude that they need to reach in order to attract the attention of international prosecution.

We know much more about command responsibility, about what it is to have specific intent and inferred intent. We know about these crimes against humanity that we call forced marriage and forced pregnancy. We know about the crime against humanity of persecution, which is actually ethnic cleansing, with much greater sophistication and practicality now than we did before.

We actually know a lot more about the crime of torture through the jurisprudence of the tribunals. It's the kind of knowledge which one only hopes would have sifted through to Washington in the very early years of this century. I think it would have provided policymakers in Washington with a much greater understanding of what this is all about. It was actually litigated before the tribunals—a much more comprehensive understanding of the crime of torture. But somehow it didn't sift through.

We also have much stronger national enforcement of these laws, with those countries that have joined the International Criminal Court. There are 120 of them now. They have been implementing the Statute of Rome and the crimes that are within that statute—genocide, crimes against humanity, war crimes—into their domestic criminal codes. That's an enormous leap in criminal law throughout the world. That means national courts are much more capable now of actually prosecuting these crimes.

That's encouraged by the Rome Don't assume that you have any easy case of it as a judge or a prosecutor in these courts. You will be challenged every single moment by expert defense lawyers. And that's exactly the way it should be, because due process is absolutely central to the functioning of these courts.Statute, through a principle called complementarity. If you can run with it domestically, run with it, and we, the ICC, will back off. Now that they are implementing this in their national criminal codes, that is a much more realistic prospect, and we actually see it playing out in various cases.

Finally, we have much more experienced jurists now. We have a whole pool of international jurists whom we can draw upon, who understand this field of law and who can walk straight into the courtroom and start practicing it immediately, as well as prosecutors, as well as a very, very talented and expert international defense bar now.

Transcript of entire lecture

Lecture based on discussion of All the Missing Souls