In this episode of Battlegrounds, H.R. McMaster and David Schwendiman discuss the evolution of human rights law, international criminal justice, investigations and prosecutions, and its implications for prosecuting war crimes in Ukraine.
H.R. McMaster in conversation with David Schwendiman on Wednesday, June 8, 2022 at 9:00am PT.
WATCH THIS EPISODE
In this episode of Battlegrounds, Fouad and Michelle Ajami Senior Fellow H. R. McMaster is joined by David Schwendiman, former assistant US attorney and war crimes prosecutor, for a discussion on the evolution of human rights law; his experience in prosecuting belligerents who have committed atrocities during conflicts in Bosnia and Herzegovina, Kosovo, and Afghanistan; and the challenges in bringing to justice Russian officials complicit in war crimes against Ukrainians.
Schwendiman classifies human rights violations into four main categories: 1) aggression, 2) crimes against humanity, 3) war crimes, and 4) genocide.
The first category, “aggression,” he explains, is largely a crime that is committed by political leadership and involves planning, preparing, and executing an unjustified military invasion of another sovereign country. Schwendiman believes that Russia’s invasion of Ukraine resembles crimes committed by Germany during World War II. Count one of the indictments that led to the Nuremberg Trials accused Nazi officials of formulating and executing an unlawful war of aggression. On count two, the German leadership was indicted for disturbing the peace in violation of international treaties, agreements, and assurances.
The second category, “crimes against humanity,” was first defined by Hersch Lauterpacht, a British lawyer who served as a judge on the International Court of Justice during the mid-twentieth century. The term was later codified in the 1998 Rome Statute, which also established the International Criminal Court at The Hague, Netherlands. Crimes against humanity include a set of atrocities committed against a civilian population—including murder, torture, rape, and kidnapping. The Rome Statute has been applied in prosecutions against not only political leaders and high-ranking military officers but also soldiers at the unit level. Schwendiman says that although it has yet to be proven in court, there is evidence that Russian soldiers are guilty of crimes against humanity in their siege of Ukrainian cities Bucha, Mariupol, and Kharkiv.
The third category, “war crimes,” includes a broad set of violations defined by the 1949 Geneva Conventions that occur within conflict, including indiscriminate attacks against people and property. Schwendiman explains that in order to lawfully engage in war, governments need to have narrow military objectives, minimize civilian casualties, and employ proportional force against their adversaries. He says that air strikes conducted by Russia and Syrian forces that resulted in hundreds of lives lost in Aleppo in 2016 would be considered a violation of war crime statutes.
The final category, “genocide,” is a crime that targets specific groups in a population based on race, religion, or cultural identity. He argues that a legitimate case of genocide can be brought against Beijing for its treatment of the Uighur Muslims in the autonomous northwest territory of Xinjiang. Actions there by the Chinese Communist Party (CCP) in separating families, prohibiting the practice of cultural traditions, and forcibly sterilizing women are intended to reduce the size and influence of the Uighur population, so that the CCP can consolidate political power in Xinjiang.
Schwendiman also describes his harrowing experience working in the prosecutor’s office in Bosnia and Herzegovina, not only in bringing criminals to justice but also in providing important closure to families, by helping to recover and identify the bodies of their loved ones who were victims of genocide in the former Yugoslavia.
Finally, he describes the difficulty in prosecuting state actors such as Vladimir Putin and other leading Russian officials, because complicity in a crime is often difficult to detect up the chain of command. As an example, he recalled how, in the 1990s, Serbian leader Slobodan Milošević unleashed ununiformed mercenaries with violent criminal histories to sow terror in Bosnian population centers, thus giving Milošević and other Serbian officials plausible deniability for their involvement in human rights abuses.
Schwendiman credits breakthrough technologies and social media for revolutionizing the discovery process for the prosecution. He concludes by stressing the importance of bolstering political support for investigations into human rights abuses, which are difficult to sustain over the long term since public moral outrage usually decreases with the passage of time.
ABOUT THE SPEAKERS
David Schwendiman served for over twenty-five years as an Assistant U.S. Attorney in the District of Utah. He was the Chief Prosecutor of the Kosovo Specialist Prosecutor’s Office in The Hague from 2016 to 2018 and previously oversaw investigation of war crimes and crimes against humanity committed in Kosovo in 1998, 1999 and 2000 as the Lead Prosecutor of the EU’s Special Investigative Task Force (SITF). Schwendiman investigated and prosecuted atrocities committed during the war in the Former Yugoslavia as an international prosecutor in the Special Department for War Crimes of the State Prosecutor’s Office in Bosnia and Herzegovina. He also served as the U.S. Justice Attaché in Kabul, Afghanistan from 2010 through 2013 and spent 2014 as the Assistant Special Inspector General for Afghanistan Reconstruction (SIGAR) and Director of Forward Operations for SIGAR. He is now an Adjunct Professor of Law at the University of Utah’s S.J. Quinney College of Law.
H. R. McMaster is the Fouad and Michelle Ajami Senior Fellow at the Hoover Institution, Stanford University and the Japan Chair at the Hudson Institute. He is also the Bernard and Susan Liautaud Fellow at the Freeman Spogli Institute and lecturer at Stanford University’s Graduate School of Business. He was the 25th assistant to the president for National Security Affairs. Upon graduation from the United States Military Academy in 1984, McMaster served as a commissioned officer in the United States Army for thirty-four years before retiring as a Lieutenant General in June 2018.
Battlegrounds provides a needed forum with leaders from key countries to share their assessment of problem sets and opportunities that have implications for U.S. foreign policy and national security strategy. Each episode features H.R. McMaster in a one-on-one conversation with a senior foreign government leader to allow Americans and partners abroad to understand how the past produced the present and how we might work together to secure a peaceful and prosperous future. “Listening and learning from those who have deep knowledge of our most crucial challenges is the first step in crafting the policies we need to secure peace and prosperity for future generations.”