BOB GARFIELD: In an emergency meeting last week, the UN Security Council failed to halt Syria and Russia's bombing campaign of Aleppo, the graveyard of a city whose rubble and civilian death toll have made it synonymous with hopelessness in the Syrian civil war.
MALE CORRESPONDENT: Four days of relentless Russian and Syrian bombings has led to a grisly sight. Hospitals are awash in the blood of civilians.
BOB GARFIELD: US ambassador to the UN Samantha Power blamed Russia for what's been called the most heinous act of the five-year war, an attack on a humanitarian aid convoy in Aleppo on September 19th during a cease-fire. Despite eyewitness accounts, the Kremlin has denied responsibility for the attack on the convoy and subsequent bombings. Russia's shocking military support of Bashar al-Assad's regime in Syria, at least in the media, now has a name.
FEMALE CORRESPONDENT: The United States is accusing Russia of barbarism and war crimes in Syria.
MALE CORRESPONDENT: The indiscriminate and systematic use of such arms on the civilian areas constitutes a war crime, yes, a war crime.
MALE CORRESPONDENT: You have said that you are pretty convinced the Russians attacked that aid convoy in which 28 workers were killed. If that isn’t a war crime, what is it?
BORIS JOHNSON: Well, Andrew, I think that is the right question to ask.
BOB GARFIELD: Yes, although the coverage so far has left little doubt as to the answer because the definition of war crime is not especially obscure. AMBASSADOR DAVID SCHEFFER: When military commanders in the field use military force in a way that violates one of three principles.
AMBASSADOR DAVID SCHEFFER: One, military necessity, two, the principle of proportionality - are you using force to achieve your targeted military objective or are you going way overboard with tons of collateral damage, etc.? And then, finally, distinction - are you actually distinguishing between the combatant enemy versus the civilian population?
BOB GARFIELD: Scheffer spoke with us from Nuremberg, where he is the closing speaker for the 70th anniversary commemoration of the Nuremberg trials
AMBASSADOR DAVID SCHEFFER: Nuremberg set sort of the gold standard at the very beginning by literally listing certain war crimes. But we’ve seen a tremendous evolution in the law of war and in what we call international criminal law since World War II. If you look at the issue today with Syria and other conflict areas in the world, there's a much richer body of law to work with than they had at Nuremberg.
BOB GARFIELD: When the press is covering any of these events, it sometimes uses, almost interchangeably, terms like “war crimes,” “atrocities,” even “crimes against humanity.” And I guess they’ve all not technically the same thing.
AMBASSADOR DAVID SCHEFFER: Crimes against humanity, that's a widespread or systematic assault on a civilian population with knowledge that you're actually doing it. You don’t have to be in warfare for a crime against humanity. You’re actually assaulting your own people.
I think for journalists it's much easier just to use the term “atrocity crimes” without trying to parse out what type of crime was it, because that’s gonna take years in tribunals, to be certain about that. And the real issue should be not, is it genocide or not and should we react if, if it's not genocide or if it is genocide, the real issue should be, we should be reacting because it is one of these types of crimes.
BOB GARFIELD: Much as the word “terrorism” has been opportunistically kind of expropriated by various people for propaganda purposes, ultimately diluting its impact, I wonder if the term “war crimes” is used too haphazardly, in your view, so as to muddy the waters of what's a war crime, to begin with?
AMBASSADOR DAVID SCHEFFER: There may be something to that, where it’s used too casually, too conveniently, without knowing really what has transpired on the ground that would constitute a war crime. Oftentimes, you have to wait for courts to actually iron that out. Sure, you can have intelligence services that are bringing you reports every morning, etc. When I experienced this in my government service in the 1990s, frankly, it is the press that oftentimes, if not most of the time, will bring you the earliest information, the most descriptive information about what is actually going on in the field. Without journalists who are brave enough to go out there and risk their lives, we would be, in many cases, quite blind.
BOB GARFIELD: I want to ask you about the very complex legal principle known as “I’m rubber, you’re glue. Whatever you say bounces off of me and sticks to you.” [LAUGHS] When British Foreign Minister Boris Johnson accused the Russians of a war crime in the attack on the aid convoy in Aleppo, the Russian Foreign Ministry came back and said, us, war criminals? No, the UK are the war criminals, look what they did in Iraq, and suggesting that the United Kingdom has no moral authority to be making accusations like that?
AMBASSADOR DAVID SCHEFFER: If there’s hypocrisy, it should be pointed out. But it is of total irrelevance to the determination of whether or not Russia committed a war crime when the humanitarian convoy was hit on September 19th, but there’s a very good possibility that there will be no prosecution of Russian commanders, with respect to what's taking place in Syria, because there is no international tribunal, either of a permanent character or a hybrid character, that has jurisdiction over Russia. Now, that’s just a reality of, of where we are right now in the arc of justice, frankly.
BOB GARFIELD: And in the meantime, it takes the UN Security Council to authorize the investigation –
AMBASSADOR DAVID SCHEFFER: Yes.
BOB GARFIELD: - and the prosecution, but the Russians have veto power on the Security Council and, therefore, impunity.
AMBASSADOR DAVID SCHEFFER: When we started building the modern age of war crimes tribunals in 1993, no one predicted we would be where we are today, with six major war crimes tribunals actively at work, bringing, to date, about 160 leaders to justice. And that includes presidents, prime ministers, etc., have been brought to justice by these war crimes tribunals. No one imagined that in 1993.
Now, justice is a long arc. In Cambodia, we’re prosecuting, in the Joint Court between the United Nations and Cambodia, a hybrid court, we’re prosecuting senior Khmer Rouge leaders who committed their crimes 40 years ago under the Pol Pot regime. They’re in their 80s and they're being prosecuted. Now, I don't think they ever dreamed they would be.
BOB GARFIELD: Ambassador Scheffer, thank you so much.