The Talking Dog

May 4, 2006, TD Blog Interview with David Scheffer

On May 4, 2006, I had the privilege of interviewing (by e-mail exchange) Professor David Scheffer, Professor of Law and Director, Center for International Human Rights, Northwestern University School of Law. Professor Scheffer served as the United States Ambassador for War Crimes Issues from 1997 to 2001 during the second term of President Bill Clinton. What follows are my questions and Professor Scheffer's answers.

The Talking Dog: My customary first question is "where were you on September 11, 2001"?

Professor David Scheffer: I was at a conference in Toluca, Mexico, organized by the Mexican human rights commission and various Mexican non-governmental organizations interested in exploring the International Criminal Court (ICC). At the time, Mexico was just beginning its debate and ratification process for the ICC and I was invited to address an audience of 2,000 interested students, NGO workers, and government officials. One hour before my address, I saw the attack on the World Trade Center on CNN and followed the story until my speech, which was mid-morning. We observed a moment of silence (still not knowing anything other than the fact of the attacks in New York and on the Pentagon) and I then delivered an address about how Mexico and the United States should work together constructively on the ICC. The special relationship forged between Presidents Bush and Fox was significant then and I tried to build upon it and suggest ways to advance the national interests of each country in tandem with constructive ties (even ratification) with the ICC. But I also knew at that moment that the Bush Administration would be far less inclined to be a good neighbor of the ICC because of the attacks and that the special relationship would be eclipsed by 9/11, and indeed it was so overtaken by the war on terror. I knew even then that the Bush Administration would want to act militarily and view international courts as obstacles rather than allies in the war on terror. So I wondered if what I had to say to this huge audience would make any difference.

After my address, I was ushered into a room packed with Mexican journalists who peppered me with questions about the terrorist attacks. (I was the only former American official at the conference.) I could only speculate it was terrorists and that they would have to be brought to justice. Due to the flight shutdown, the Mexican Government graciously arranged to drive me that afternoon all the way to the Texan border and I arrived in New Laredo at midnight. Along the way, when we stopped at diners and gas stations, Mexicans were glued to the television and approached me with their sympathies. That has always impressed me; although I was a total stranger to them they assumed I was an American and wanted to express their sympathy for and solidarity with us. CNN and other media had been reporting that the Texan border was closed, so I did not know what would happen on September 12th when I tried to cross the Rio Grande on the Laredo bridge. I was astonished when I arrived there…hundreds of Mexican day-workers were streaming across the bridge into Laredo, Texas, without any difficulty. I joined them and was the only one stopped at the border, with my U.S. passport closely scrutinized and luggage examined, while Mexican citizens streamed around me flashing their work cards. I called my contacts at CNN shortly thereafter and told them their reports were inaccurate—the border is open at Laredo. I then began a long journey home to Virginia, on a bus to San Antonio and then a rental car (the last available in San Antonio) which I drove all the way home with a stop at Duke Univ. Law School to teach my weekly class there (the faculty and students were somewhat surprised I had made it in time). I listened to talk radio across the deep South on the drive home and absorbed America’s reaction. I recall seeing only one American flag at full staff—in front of a gravestone merchant in southeast Texas.

Postcript: Mexico recently became the 100th State Party of the Rome Statute of the International Criminal Court following a long ratification process, which in significant part had begun that day, September 11, 2001, in Toluca.

 The Talking Dog: I take it that I am correct that shortly after 9-11, and indeed since you left the Clinton Administration through the present, you have been sought out as an expert on international law and particularly the laws of war and law of war crimes? If you can tell me, has your advice been sought out by the Bush Administration, in any capacity? Have you consulted with your successor (Ambassador Prosper) about these international law issues? If the answer is no, do you have any general advice you would provide to President Bush, Secretaries Rice and Rumsfeld and other appropriate officials now, with respect to these international law issues and legal aspects of the handling of the "war on terror"?

David Scheffer: You are correct that the media, think tanks, universities, and law schools have sought me out as an expert on international law, including the law of war and international humanitarian law. The Bush Administration has only approached me on four occasions: 1) Then Ambassador at Large for War Crimes Issues, Pierre-Richard Prosper, my successor, called me in 2002 regarding his proposal to bring the work of the International Criminal Tribunals for the Former Yugoslavia and Rwanda to a scheduled end, which was creating a firestorm at the time, particularly from the tribunals and European supporters of them and NGOs. He sought my advice on how to resolve the crisis, and it was a call I appreciated. 2) Then U.S. Permanent Representative to the United Nations, John Negroponte, called me in the summer of 2002 to learn my opinion of U.N. Security Council Resolution 1422, which had taken a strained interpretation of Article 16 of the Rome Statute of the ICC and excluded personnel of any non-party state to the Rome Statute engaged in any U.N.-authorized military operations from investigation by the ICC for at least one year. This had been sought with considerable effort by the USG in order to sustain its support in the Security Council for peacekeeping and peace operations. Again, I appreciated that call and gave Amb. Negroponte my frank opinion. 3) I was invited to the White House in November 2005 for a personal consultation with advisors very close to President Bush on the subject of Darfur and how to address that atrocity situation. I was afforded almost two hours of intensive consultation, at which I mapped out a laundry list of initiatives, and I deeply appreciated that opportunity. 4) I have been invited, and have attended, some closed war crimes meetings organized by the government and designed to bring academics together to examine the work of the international and hybrid criminal tribunals. Let me make the point here that I firmly believe war crimes work is and must be a non-partisan and bipartisan endeavor and I always sought to keep it that way while I was in office. So when I did get these calls, I was grateful to make whatever contribution I could.

My general advice to the Administration, which I’ve given publicly often, is that they are pursuing the war on terror with a distorted understanding of the law. They need to clearly distinguish between anti-terrorism law (both domestic and international) and the law of war. By categorizing international terrorists as combatants in a war on terror, they have elevated these individuals to warrior status with all the rights that combatants (even those without uniforms and operating apart from national armies) are entitled to under the law of war. Prior to 9/11, the United States had led two decades of negotiations to forge more than 10 international anti-terrorism conventions designed to pursue terrorists as terrorists, not warriors. U.S.C. Title 18 has anti-terrorism provisions also designed to prohibit terrorists from offering any justification whatsoever for violent acts, including against military or other government facilities. The bizarre and poorly planned situation whereby some terrorists are or have been on trial in federal courts while others are treated as combatants and are sequestered in secret prisons and Guantanamo Bay-- some being tried before special military commissions under the law of war, most being held indefinitely without trial, and others being interrogated in ways that will never permit trials due to the illegal means of acquiring information from them—shows massive confusion about and distortion of international law and U.S. federal law. The sooner the mess is cleaned up, the better.
The Talking Dog: I recall reading an interview you gave shortly after the commencement of the conflict in Afghanistan, in which you observed that members of the American military might have a potential legal problem if they had knowledge of mistreatment of Taliban prisoners by, for example, our allies in the Northern Alliance and with such knowledge, then did nothing to remedy it.  Can you elaborate on why international law provides that result, can you tell me if, as some prisoners at Guantanamo have alleged, that they were mistreated in American custody while detained at Bagram Airbase and later at Guantanamo, American officials or members of the military might have potential legal problems if the allegations are borne out?  Let me ask the same question on the subject of so-called extraordinary renditions; if it is borne out that American officials participated in executing policies whereby people were transported to third countries and tortured, those officials might bear exposure under international law?

David Scheffer: I believe I was referring to the command responsibility doctrine that is now well entrenched in international criminal law, namely, that commanding officers who knew or should have known that their forces were committing or about to commit atrocity crimes and failed to take all necessary and reasonable measures to prevent or stop the commission of such crimes or submit the violations to competent authorities for investigation and prosecution, should be held criminally responsible. (See, for example, Article 28 of the Rome Statute of the ICC.) The failure of U.S. military and civilian authorities to investigate up the chain of command (military and civilian) during the war on terror and the Iraq war has severely undermined our respect for the rule of law. The international criminal tribunals have established a hefty track record now of investigating and prosecuting civilian and military leaders charged with atrocity crimes. While they often find such leaders individually responsible for violations of atrocity law, and thus do not need to convict on command responsibility grounds, there has been much attention paid to the doctrine in the judgments. We do not have a lot of experience in U.S. law with the command responsibility doctrine as it applies to war crimes, but federal and military law offers avenues for such investigations and prosecutions. Under international law, American officials may be at signficant risk of exposure to investigation and possible prosecution (depending on whether jurisdictional requirements can be met).
The Talking Dog: Let me use that as my segue to discuss the article you recently wrote that appeared in the University of Pittsburgh's "Jurist" web site, discussing the Supreme Court case of Hamdan v. Rumsfeld.  Your article states that the crime of "conspiracy to commit war crimes" is not recognized either under international law or under American military (including the Uniform Code of Military Justice, contained at Title 10 of the United States Code), or other civil or criminal law (including the terrorism crimes defined at Title 18 of the United States Code.)  In the case of the lead party to that case, Salim Hamdan, my understanding is that it is alleged that he was Osama bin Laden's personal driver, auto mechanic and some time bodyguard, and as such, the government asserts that Mr. Hamdan may be found personally criminally liable for Bin Laden's acts and those of Bin Laden's Al Qaeda organization, without further proof of an overt criminal act by Mr. Hamdan in support of the "conspiracy".  Am I correct that your contention is that, absent some further overt provable act by Hamdan to advance the "criminal enterprise," the charges do not state a proper basis to charge him under international or American law?

David Scheffer: The military commissions established at Guantanamo Bay can only investigate and prosecute violations of the law of war. That creates a problem when you are really dealing with alleged terrorists rather than combatant warriors. It may be that if Mr. Hamdan were prosecuted in a U.S. federal court, a charge of conspiracy to commit terrorist crimes under federal anti-terrorism law would be entirely appropriate. But the forum of the military commission prohibits such a charge in the indictment, unless Congress were to explicitly legislate (and it has not) a broadening of the military commission’s jurisdiction to include criminal violations beyond violations of the law of war. My essay in JURIST focused on showing that there is no credible charge in international law of a conspiracy to commit war crimes. Rather, a different charge, that of joint criminal enterprise or aiding and abetting, has become the operative means of making a charge related to participation in a group effort relating to war crimes. There are many reasons for this, and it might be viewed by some as a technicality. But it has been the focus of much litigation ever since Nuremberg and international courts are very familiar with the important distinctions. Again, this error reflects the Bush Administration’s confusion about pursuing a war on terror with overlapping applications of antiterrorism law and the law of war. It is a needless mess and one that could have been easily corrected years ago.
The Talking DogMy understanding is that all ten of the detainees at Guantanamo who have been charged with crimes and subject to trial by military commissions   have been charged with conspiracy, and seven of the ten (including Mr. Hamdan himself) are charged with only conspiracy.  As far as you are concerned, would you reach the same conclusion as to all ten of these detainees with respect to the conspiracy to commit war crimes charge (to wit, that it is not recognized under international or American law)?
David Scheffer: Yes, for the reasons stated in the prior answer. The charge of conspiracy might be better pursued by transferring these cases to federal criminal court and prosecuting these individuals as terrorists, assuming they are in fact credible targets for terrorist charges (see below).

The Talking Dog: Let me turn to the three individuals (Hicks, Khadr and Zahir) who have been charged with crimes beyond conspiracy.  We will not address issues unique to Khadr because of his juvenile status because he was 15 at the time of the alleged "war crime".  Briefly, my understanding is that Hicks is charged with attempted murder and aiding the enemy for ostensibly guarding a Taliban tank position and possibly firing shots in combat, probably against the Northern Alliance; Khadr is charged with throwing a grenade and killing an American soldier and Afghan soldiers and injuring other soldiers during a combat situation, and Zahir is charged with throwing a grenade into a bus resulting in injuries to foreign journalists.  My non-expert opinion is that these sound like events that are not atypical in combat situations rather than "war crimes"?  Again, is there any reason, prima facie, why these individuals would not be entitled to "belligerent immunity" or privilege (in which case, their status should be straight prisoners of war)?  Am I not correct that the Geneva Conventions require an "impartial arbiter" to make the first pass on that immunity or privilege status, and that the Combatant Status Review Tribunals set up after the Rasul case do not meet generally accepted standards of "impartial," as the "arbiter" is ostensibly the Bush Administration or the military itself?

David Scheffer: The situations of Hicks and Khadr would appear to be combat actions and difficult to squeeze into anti-terrorism law. Within the law of war, whether those charges would stand up as war crimes is very problematic, in my view. As for Zahir, I do not know the facts well enough to know under what circumstances he threw the grenade and whether the bus was in a combat situation. Assaulting civilians (foreign journalists) in this manner may indeed give rise to a war crimes charge depending on the circumstances. If the attack took place outside combat, it may give rise to a terrorism charge. But I do not know the facts in any depth on that case. Hicks and Khadr might well qualify for prisoner of war status and, even if they were to fail the Article 4 test under the Fourth Geneva Convention, they would not necessarily fall into any terrorist category for either detention or prosecution purposes. None of these individuals ever received an Article 5 review of their status under the Fourth Geneva Convention, and that is a critical problem that the Combatant Status Review Tribunals do not overcome, in my view, and that has been much discussed in the Hamdan case briefs and judgments. The Article 5 panel needs to be a “competent” tribunal, which typically would be drawn from the ranks of the victor. But “competent” should point to individual military officers sitting on the tribunal who have enough objectivity to make fair assessments of Article 4 status. In any event, that competent review by an Article 5 tribunal for the purpose of determining Article 4 status never occurred with respect to Afghanistan, Iraq since 2003, or Guantanamo Bay.
The Talking Dog: I read a panel discussion involving yourself and Professor Adam Roberts in which he suggested that the United States should invoke Article 75 of Protocol 1 of the Geneva Conventions (providing for "fundamental guarantees" for those detained under the laws of war) which I understand the United States has not ratified.  Can you briefly explain whether you agree with Roberts' view, and in your opinion, would invocation of  Article 75 solve problems of perceived unfairness with the proposed military commission (and indeed, larger) issues associated with Guantanamo?

David Scheffer: Yes, I agree with Professor Adam Roberts. U.S. officials long ago determined that Article 75 of Protocol I reflects customary international law, even though we have never ratified Protocol I (due to concerns about entirely different provisions). The purpose of Article 75, which the United States was deeply involved in drafting during the Protocol I negotiations, is to ensure that even if a captured individual is not a prisoner of war pursuant to Articles 4 and 5 of the Fourth Geneva Convention, there are fundamental guarantees that must be observed with respect to all detainees in situations covered by the 1949 Geneva Conventions. My amicus brief in the Padilla case discusses this in detail. See Brief of Law of War Experts as Amici Curiae in Support of Respondent, Donald Rumsfeld, Petitioner v. Jose Padilla and Donna R. Newman, as next frien d of Jose Padilla, Respondents, Supreme Court of the United States (No. 03-1027) (2004) (with Jeffrey K. Walker).

 The Talking DogIn your Jurist article, you criticize the Bush Administration's efforts to, as you call it, fit the square peg of terrorism in the round hole of war and war crimes. Now, my understanding of some of your suggestions of dealing with transnational terrorism include, possibly, having Congress expand military commission powers to incorporate power to hear cases under American antiterrorism statutes (included under Title 18 of the U.S. Code). You've suggested elsewhere, for example, that other aspects of American law, such as Title 10 (governing military law) should be updated to confirm with international norms, particularly those surrounding the International Criminal Court. What other suggestions would you have for how best to proceed, in a legal process sense, to combat terrorism?
David Scheffer: We also need to revise Title 18 of the U.S. Code to modernize our ability to fully investigate and prosecute genocide, crimes against humanity, and serious war crimes. It is not just terrorism, but the full panoply of what I call “atrocity crimes” (genocide, crimes against humanity, and serious war crimes) about which U.S. federal and military law is very antiquated. Other legal systems, particularly in Europe, have leaped way ahead of us in their capabilities to pursue these crimes.

Beyond that, though, I would do the following: 1) detain and prosecute international terrorists in US federal criminal courts (fully recognizing the difficulties but also the justness of that approach) or turn them over to credible foreign national courts for similar prosecution (depending on jurisdictional requirements); 2) build prisoner of war camps on U.S. territory and hold captured battlefield combatants (of the more classic character) as well as terrorists whom we do not want to prosecute but, in a concession to the “war on terror,” must deny freedom to for national security reasons, as prisoners of war (de jure or de facto) under the Fourth Geneva Convention. We can still interrogate such individuals but they will have legitimate rights they can exercise under the convention, and that is the price we pay for upholding the rule of law and protecting our own soldiers from abusive treatment if captured overseas; 3) close down any U.S.-authorized or operated foreign “secret” detention centers and thus bring to an end such outrageous conduct risking clear violations of international human rights law and international criminal law, either in terms of state responsibility or individual criminal responsibility.

The Talking Dog: I understand that during your service with the Clinton Administration, the United States executed "the Rome Statute," or signed on to the creation of the International Criminal Court.  The I.C.C. was never submitted to the senate for ratification, and the Bush Administration has since withdrawn the United States' signature, and has obtained around 100 bilateral agreements with other nations not to turn over accused nations to the I.C.C.  There is a round of renegotiations of the I.C.C. scheduled in 2009, at which one of the main subjects will likely be international anti-terrorism law and cooperation.  Am I correct that you would agree that the United States' interests in shaping international law in this area would be better served if the United States participates in these negotiations?  

David Scheffer: Yes. I have published a lot on all of this in various law review articles. The latest and rather brief article is The Future U.S. Relationship with the International Criminal Court, 18 Pace Int’l L.Rev. 801 (2006). Even the harshest critic of the ICC should see the benefit for U.S. national interests to engage as an observer in the negotiations in the Assembly of States Parties of the ICC regarding the crimes of aggression, terrorism, and drug-trafficking, which will be considered for incorporation as actionable crimes in the Rome Statute of the ICC at the 2009 Review Conference. As this law develops, the United States should be taking a leadership role, as we formerly did during the ICC talks, to influence the definitions of these crimes and how the ICC would have jurisdiction over them. Otherwise, we leave this law-building exercise wide open for other governments to control completely.
The Talking DogDo you believe that there are other relevant questions in these areas that I should have asked you but didn't, or if there is anything additional my readers and the American public need to know?
David Scheffer: In recent years U.S. officials have demonstrated a remarkable sense of fear about the rule of law and of being intimidated by international criminal law. This is an area the United States used to lead in and we have forfeited that leadership to others. We have also portrayed a nation that has used the pretext of the terrorist threat to pursue another agenda—that of walking away from or decreasing our support for international criminal courts and indeed trying to undermine the International Criminal Court. The first step we need to take, desperately, is to fully enforce our own federal and military law regarding atrocity crimes and pursue accountability. The world is watching, and the American public is losing its patience.

The Talking Dog: I join all of my readers in thanking you for taking the time to give us such a thorough and informative interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Jonathan Hafetz,
Joshua Denbeaux,
Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror") and with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), and with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, to be of interest.


That was enlightening. His ICC recommendation seems to be the same one as that in the old wives' tale: "You catch more flies with honey than with vinegar." I've felt that way all along, but obviously the Administration likes vinegar.

Unrelated: the comment box is back to its sensible (larger) size.

Posted by Linkmeister at May 5, 2006 2:52 AM

In Dr. Anne Marie Slaughter’s book and lecture entitled New World Order, she makes it plain that all nations will surrender their sovereignty to accept international “legislative, judicial, and regulatory” control.

Entering the International Criminal Court will certainly happen, but understand, then, that brings to an end any kind of domestic legislative and judicial authority as provided for under the Constitution.

It is also arguable whether the Constitution isn’t effete for all intents and purposes right now, anyway; and, too, whether our federal judiciary hasn’t gone somewhat amok as well.

I think willingly entering into the ICC is a mistake, just as I think entrance into the FTAA and other globalization legislation and regulation is a mistake.

We are told we must do this because the world is changing. Well, yes, it’s certainly changing, but this nation has been involved with global commerce for two centuries. I don’t see why we must sacrifice our national freedoms and protections so that corporations can wield even more power in the future.

After all, the New World Order—despite the smiley face that’s painted on it—will be nothing less than corporate fascism.

Posted by Vyzygoth at May 5, 2006 12:17 PM

Just want to say how much I appreciate these interviews. I'm not a lawyer and I don't always completely follow them, but I have the sense that the rule of law is slipping away as the underpinning of our national life and I am enough of an historian to suspect that is a fatal mistake.

Posted by janinsanfran at May 7, 2006 6:53 PM