Nuclear Age Peace Foundation

Category: International Law

  • Have We Already Been Defeated?

    I am terror stricken. I am awakening from a nightmare in which America has been defeated, her people enslaved, her freedoms confiscated, and her citizens imprisoned within their own borders. I awaken to discover that the dream could be true.

    Beyond the pain of the already dead and dying, the unspeakable horror is that the enemy may have beaten us already. And the enemy laughs. And the enemy is insane. That we may have been conquered is an unutterable secret. Our leaders will not tell us because they do not know. They, too, are part of this giant that has suffered such ungodly pain, such unremitting horror and sorrow. As we watch, the giant rises up preparing to crush its enemies it cannot see nor fully understand. As we watch we learn that the giant, too, does not know that it may have already been beaten. No one has told us that our enemy can never be defeated, not even by the most powerful nation in the history of the world.

    The enemy, of course, is Hatred. And Power, even absolute power, cannot destroy Hatred. Power can only create Hatred. Power can wipe out thousands, millions, nations, the world, but it cannot destroy Hatred. We can kill those who have killed us but each of their dead and ours will be replaced many fold by a new, more potent strain of hatred. Hatred killed thousands in New York, and instantly created two hundred-sixty million people filled with rage and a new hatred of their own. The giant can kill their leaders and those who succor them. The giant can wipe out their villages, but Hatred will find ways to obliterate our freedoms, our institutions, to extinguish our moral beacons and at last it may even destroy our cities and our civilization. The enemy, Hatred, is instantly contagious. It destroys reason. It turns good men into killers. It infects all that it touches. It cannot be defeated except by love. But how can we love that which we hate so?

    When I say that already we may have been defeated I do not mean the body count will be in their favor. We will always win the body count. If they wipe out great buildings, we can destroy whole cities. If they wipe out a city, we can destroy a whole nation. The giant has the power. We are Power. Power can win the body count but it cannot win this war. Because the enemy is not human. This is a war against a malicious spirit.

    Only fools attempt to defeat a spirit with guns and rockets and bombs. It is like blowing up the air. It is like bombing graveyards. Destroying all that lives cannot destroy Hatred. It grows like a perpetual cancer. It breeds Hatred and infects all that it touches until nothing remains except the offspring of Hatred which is terror and pain and death. Some have said this is a war of good against evil. But Power that only begets Hatred is not good. In the end, Hatred becomes the most indomitable power of all.

    In response to our demand for just and immediate reprisals we already may be committed to a broad kind of indiscriminate killing. Already we have committed our children to kill and to be killed. And the enemy, Hatred, laughs, because it knows that killing on either side will bring on more hatred until, after decades, perhaps generations, the giant will have depleted itself, its coffers drained, its natural resources exhausted, its population drowned in fear and sorrow and hatred over the endless fields of dead. At last the giant, drained and gasping in its own poisoned air, may surely fall. There will be no victors in this war except Hatred. It can defeat all sides, all comers, all challengers, all weapons. All Power. It can defeat All.

    I have spoken here of a simple proposition, one that men of Power find difficult to understand because men of power understand only power. Many politicians have spoken to a people who have suffered, who have lost their children and loved ones and who are afraid. But they play to an enflamed and suffering people often without careful questions and with expressions of hatred instead. Reason is out. Dissent is seen as unpatriotic. To ask simple a question, like, “Why are we hated so?” cannot be asked. Justice has become confused with killing so that the more we kill in retribution, and the sooner, the more justice we are said to receive, and the safer we shall become. But such justice delivers only Hatred–theirs and ours–and leaves us more vulnerable to those who will hate us still more.

    Let us now go forward to that time when the body count is over. We can see their dead and ours lined in long rows, the parts of the bodies in terrible heaps, the mangled and limbless children, the weeping, the wounded and the wretched. The world is drowning in tears. But in this horrid conflagration we have not won, because freedom, which was once our life blood, has been drained from us as part of the price of the war.

    No longer can we trust our neighbors. No longer can we wander safely from our own borders, nor move within them without fear. Our Constitution is only a memory on faded parchment. We can not speak freely for fear we will be hated. Our civil liberties, once guaranteed under that blessed document, have given way to the exigencies of this struggle. The police have demanded that they be given more power, that they be permitted to tap our phones and search our homes without warrants. We have become prisoners with electronic tattoos. Reacting to our fear we have embraced the police who have promised to keep us safe. But we are no longer safe from them. We have been stripped of our rights and stand naked and helpless before them. Our lawyers, once warriors for the people, can no longer speak out for us. Their tools of justice, our constitutional rights, have been confiscated so that they stand impotent and whining. And the courts turn their heads. We have become locked within our self-constructed prisons on the promise that we will be safe there. But we are no longer safe from the police in this new police state–a nation still called America.

    That blessed ideal fundamental to any free nation–the rule of law–can no longer be heard through the racket of our rage. America, once founded on the rule of law, has already committed to sacrifice the rule of law for its security. The terrible need of Power to grasp more power is never satiated. Hatred also hates freedom and despises the rule of law. And once the rule of law has been forfeited, like an arm severed, like a leg amputated, like a soul stripped of its sense of humanity, it can never again be called upon to protect a free people.

    The goal of a free nation is to reveal by example the enlightened possibilities of the human race, not to wield its power of destruction and death over the helpless, the poor, the starving and the war torn masses. The goal of a free nation must be no different outside its borders than within them. In America we do not massacre whole towns because they may be the chosen domicile of a criminal or a conspiracy of criminals. Instead we carefully root out the felons and bring them to justice. In the same way, the goal of a free nation must be to first view all people as members of the human race, and, as such, to insist that they possess fundamental human rights. They are, as we, citizens of the world.

    The rule of law shows us the way. Those who have committed these atrocities and those who aided and abetted them must be positively identified and brought to justice. Despite their crimes of horror they must be surrounded with all of the rights to which any citizen of the world is entitled. If we ask the rest of the world to join us in this war, our request must not be that they join us in the madness of killing, in the eternal seeding of hatred, but that they join us in our quest for justice under the rule of law. The venue for such trials must be a special international tribunal, for the crimes were not against us alone but against the entire world, against the human race.

    If we are, indeed, to remain a free nation, the people, at last, must wield their final power over Power. We, the people, must ensure that unleashed Power, this enraged giant, does not, itself, become the most proficient, the most hideous, the most gargantuan terrorist in the history of mankind and thereby plant a crop that bears an eternal fruit of Hatred.

    We cannot be asked to love those who have wrought such pain and death on so many innocent people. Such love is beyond the capacity of the human organism. But we are able to love our system based on the rational, just, rule of law. And, we are able, through the love of it, not to further nourish Hatred, but instead to accept the greatest of challenges, and, indeed, the greatest of opportunities that have ever been tendered a free nation–to teach the world by our example, to hold Power tightly to the rein, and at last to lead the world toward a day when we shall be free from fear and terrorism by embracing, yes, cherishing the rule of law. It is the majesty of the rule of law that underlies the Constitution of the United States. With it we can lead the world to freedom. Without it we are doomed to the endless pain and destruction that an unleashed Hatred will forever wage upon us. In a sane world, we can never surrender to Hatred.

  • Reflections on the Terrorist Attacks

    The plunging airliners, commandeered by terrorists, ripped gaping holes in more than the towers of the World Trade Center. They ripped away the veneer of security that we believed surrounded us. We in America can never again feel secure in the same way.

    We were vulnerable before the hurtling planes crashed into the World Trade Center, but we never stopped to think that this could happen to us. Now we understand our vulnerability, and our lives will never be the same.

    What madmen seek to kill us? Are the plans for the next attacks already set in motion? Are there more suicidal phantoms, coiled like cobras, in our midst? We remain apprehensive with good reason.

    Some Americans are calling for vengeance. But we are fighting phantoms, and our military power is not sufficient to assure an end to future threats. It will not be so easy to find these terrorists and bring them to justice.

    The best of America is on display. Heroism abounds. Americans are coming together to mourn their losses, to grieve, to comfort and care for each other, and to begin rebuilding. All Americans have a piece of that gaping hole in their hearts.

    Justice must be done, and we need to find those responsible for the crimes committed. But our response to those crimes must be legal under international law, moral in not causing the deaths and injuries of more innocent people, and thoughtful in asking why this has occurred and what can be done to end the cycle of violence.

    Vengeance may reassure some that our power matters. But vengeance will not protect us. It will only create more who despair and hate, more who are ready to rip at the heart of America.

    Until all are secure, none will be. The violence could grow even worse because the weapons in our world can kill so massively. Nuclear, radiological, chemical and biological weapons all hover around us. Will we take the necessary steps to end these threats?

    There are deeper issues that we must explore. These include questions about who we are and what we are doing in the world and to the world. In the end, our only way out is to climb through the hole in our hearts until we find our full humanity.

    The only way we can mend our hearts is to recognize our oneness with all humanity. For better or worse, we share a common shadow and a common fate. We cannot change the past, but we can begin building a more peaceful and decent world today.

    *David Krieger is the President of the Nuclear Age Peace Foundation.

  • Treaties Don’t Belong to Presidents

    New Haven– President Bush has told the Russians that he will withdraw from the Antiballistic Missile Treaty, which gives both countries the right to terminate on six months’ notice. But does the president have the constitutional authority to exercise this power without first obtaining Congressional consent?

    Presidents don’t have the power to enter into treaties unilaterally. This requires the consent of two-thirds of the Senate, and once a treaty enters into force, the Constitution makes it part of the “supreme law of the land” just like a statute.

    Presidents can’t terminate statutes they don’t like. They must persuade both houses of Congress to join in a repeal. Should the termination of treaties operate any differently?

    The question first came up in 1798. As war intensified in Europe, America found itself in an entangling alliance with the French under treaties made during our own revolution. But President John Adams did not terminate these treaties unilaterally. He signed an act of Congress to “Declare the Treaties Heretofore Concluded with France No Longer Obligatory on the United States.”

    The next case was in 1846. As the country struggled to define its northern boundary with Canada, President James Polk specifically asked Congress for authority to withdraw from the Oregon Territory Treaty with Great Britain, and Congress obliged with a joint resolution. Cooperation of the legislative and executive branches remained the norm, despite some exceptions, during the next 125 years.

    The big change occurred in 1978, when Jimmy Carter unilaterally terminated our mutual defense treaty with Taiwan. Senator Barry Goldwater responded with a lawsuit, asking the Supreme Court to maintain the traditional system of checks and balances. The court declined to make a decision on the merits of the case. In an opinion by Justice William Rehnquist, four justices called the issue a political question inappropriate for judicial resolution. Two others refused to go this far but joined the majority for other reasons. So by a vote of 6 to 3, the court dismissed the case.

    Seven new justices have since joined the court, and there is no predicting how a new case would turn out. Only one thing is clear. In dismissing Senator Goldwater’s complaint, the court did not endorse the doctrine of presidential unilateralism. Justice Rehnquist expressly left the matter for resolution “by the executive and legislative branches.” The ball is now in Congress’s court. How should it respond?

    First and foremost, by recognizing the seriousness of this matter. If President Bush is allowed to terminate the ABM treaty, what is to stop future presidents from unilaterally taking America out of NATO or the United Nations?

    The question is not whether such steps are wise, but how democratically they should be taken. America does not enter into treaties lightly. They are solemn commitments made after wide-ranging democratic debate. Unilateral action by the president does not measure up to this standard.

    Unilateralism might have seemed more plausible during the cold war. The popular imagination was full of apocalyptic scenarios under which the nation’s fate hinged on emergency action by the president alone. These decisions did not typically involve the termination of treaties. But with the president’s finger poised on the nuclear button, it might have seemed unrealistic for constitutional scholars to insist on a fundamental difference between the executive power to implement our foreign policy commitments and the power to terminate them.

    The world now looks very different. America’s adversaries may inveigh against its hegemony, but for America’s friends, the crucial question is how this country will exercise its dominance. Will its power be wielded by a single man ˜ unchecked by the nation’s international obligations or the control of Congress? Or will that power be exercised under the democratic rule of law?

    Barry Goldwater’s warning is even more relevant today than 20 years ago. The question is whether Republicans will heed his warning against “a dangerous precedent for executive usurpation of Congress’s historically and constitutionally based powers.” Several leading senators signed this statement that appeared in Senator Goldwater’s brief ˜ including Orrin Hatch, JesseHelms and Strom Thurmond, who are still serving. They should defend Congress’s power today, as they did in the Carter era.

    If they join with Democrats in raising the constitutional issue, they will help establish a precedent that will endure long after the ABM treaty is forgotten. Congress should proceed with a joint resolution declaring that Mr. Bush cannot terminate treaty obligations on his own. And if the president proceeds unilaterally, Congress should take further steps to defend its role in foreign policy.

    We need not suppose that the president will respond by embarking on a collision course with Congress. His father, for example, took a different approach to constitutionally sensitive issues. When members of Congress went to court to challenge the constitutionality of the Persian Gulf war, President George H. W. Bush did not proceed unilaterally. To his great credit, he requested and received support from both houses of Congress before making war against Saddam Hussein. This decision stands as one precedent for the democratic control of foreign policy in the post-cold war era. We are now in the process of creating another.

    *Bruce Ackerman is Professor of Constitutional Law at Yale Law School and co-author of “Is Nafta Constitutional?”

  • Concerned Student Writes to President Bush

    Dear President Bush,

    My Name is Nelly Martinez. I am a student at Mount San Antonio College. Right now I am researching nuclear arms. Recently, a disturbing article came out about this particular subject in the Los Angeles Times. After researching and learning about the power of our nuclear arsenal, I was shocked and amazed at why we need such disastrous weapons. Maybe someone can help explain my misconceptions.

    In my mind, I believe the issue of having the most weapons is an issue of who has the bigger toy, or the bigger muscles. What about the opinions of the ordinary American citizens who do not have knowledge about nuclear issues? What about those who decide to just ignore the subject and place this issue in the back of their heads? It was a relief to hear that there is a treaty banning the testing of nuclear weapons. If one Trident submarine has enough firepower to wipe out the Northern Hemisphere and cause devastating effects, why do we need any more of such submarines? How can anyone want to destroy the life of other innocent human beings?

    There is no doubt that my life, the life of my family (whom I love and cherish with all my heart) and the life of future generations will be affected by a nuclear war. The fact is no one would survive a nuclear war. Isn’t that enough to get through the minds of the people in charge of these weapons? In my opinion, whoever decides to make more nuclear weapons is worse than Hitler. Such actions could result in a World Holocaust and it is doubtful that mankind could survive a nuclear winter.

    Please do not forget about the bombings of Hiroshima and Nagasaki. But also, do not forget about the past in general so that we can learn from our mistakes. I know that the nuclear bombings of Hiroshima and Nagasaki are nothing in comparison to the capability we have now. I also know that if another country should strike the US with a nuclear weapon, we would without a doubt retaliate. This process of striking and reciprocating a nuclear attack could continue until mankind itself would be wiped out. I do support the Constitution’s “Right to Bear Arms,” but how far must we go?

    Here is a hypothetical example: We the Americans are up against the “enemy” standing in a pool of gas, representing our world, one side has 16,000 matches ready to ignite the other side has 30,000 matches. Who will win? One match alone (The firepower in one Trident sub) will do the job.

    I am here to plea for some kind of answer to my questions because I love my life, my country, my people and other people as well. I truly want my children’s children to live after I am gone from this earth. My dream is to live until I am old and not be vaporized by a nuclear bomb. Please Mr. President, help us keep peace with other countries and obey the Anti-Ballistic Missile Treaty. Once we violate this Treaty the United States has made with Russia, both countries will start making more unnecessary nuclear weapons.

    Sincerely,

    Nelly Martinez A Concerned Student and Citizen

  • A Nuremberg Prosecutor’s Response to Henry Kissinger

    Henry Kissinger’s essay on “The Pitfalls of Universal Jurisdiction” (Foreign Affairs July/August 2001) perceives danger in allowing international legal norms to interfere with political actions by national governments. The former U.S. Secretary of State in the administration of President Richard Nixon warns that current efforts to deter genocide and other crimes against humanity by creating an international criminal court (ICC) run the risk of becoming a “tyranny of judges” or a “dictatorship of the virtuous.” He refers to “inquisitions and even witch-hunts.” Kissinger’s focus on the past exaggerates the dangers of the present and ignores the needs of the future. If we are to have a more peaceful and humane world, international law must play a greater and not a lesser role.

    Dr. Kissinger challenges the basic concept of universal jurisdiction. He argues, incorrectly, that the notion is of recent vintage. He gives scant weight to ancient doctrines designed to curb piracy or to a plethora of international conventions following the first world war. He fails to recognize that international law is found not only in treaties but in general principles of justice and in customs which gradually obtain universal recognition. International law is not static but advances to meet the needs of a changing world.

    Over half a century ago, Robert M. Jackson, on leave from the U.S. Supreme Court to become Chief U.S. Prosecutor before the International Military Tribunal at Nuremberg, declared: “To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.” The learned judges reviewed the law on which the trials were based and concluded that it was “not an arbitrary exercise of power on the part of victorious nations” but “the expression of international law existing at the time of its creation…” The Nuremberg principles were affirmed by the United Nations in 1946 and became binding legal precedents for war crimes trials in Tokyo and elsewhere. Justice Jackson and Telford Taylor, his successor for a dozen subsequent trials at Nuremberg, repeatedly made plain that the law being mobilized to maintain peace in the future would apply to all nations equally.

    The United States inspired the world when it proclaimed at Nuremberg and elsewhere that aggression, genocide and other crimes against humanity were universally prohibited by international law. It was recognized that states can act only through individuals and thus those leaders responsible for the crimes could be held to account in a court of law. Crimes like aggression, genocide and similar large-scale atrocities are almost invariably committed by or with the connivance of a national government and it thus becomes imperative to have available an international tribunal that could bring them to justice. For over half a century, United Nations committees struggled in vain to reach consensus on a code of international crimes that would be punished in an international court. Cold war politics stymied all U.N. efforts to create an international criminal jurisdiction. Powerful nations remained unwilling to yield their sovereign rights to kill as they alone saw fit.

    After years of meticulous argumentation at the U.N., a breakthrough finally came in Rome in 1998 where 120 nations voted in favor of an ICC to curb the incessant murders and persecution of millions of innocent people. The U.S. was one of 7 nations that voted No. Mr. Kisssinger now argues that because of “the intimidating passion of its advocates”, the judicial procedures designed to punish and deter new crimes against humanity are being “spread with extraordinary speed and has not been subjected to systematic debate”. ” It is not the passion of its advocates that is moving nations toward the rule of law – it is the passion of those who have been victims of politics as usual.

    The tribunals set up by the Security Council of the United Nations in the 1990’s, with strong U.S. support, to punish massive war crimes committed in the former Yugoslavia and Rwanda, are belittled by Dr. Kissinger’s argument that “It was never thought that they would subject past and future leaders of one nation to prosecution by the national magistrates of another state where the violations had not occurred”. None of these arguments are convincing. Kissinger scorns the judgment of Great Britain’s esteemed Law Lords who confirmed the legal validity of the detention in England of Chile’s former Head of State, Augusto Pinochet, who was accused of crimes committed against Spanish nationals in Chile. He ignores, for example, the widely-hailed prosecution of Adolf Eichman by Israel, for Holocaust crimes committed in Europe at a time when the state of Israel didn’t even exist. He fails to recognize that these advances in international jurisprudence also reflect the changing needs of contemporary world society.

    In 1776, the Declaration of Independence declared that “governments derive their just powers from the consent of the governed.” The United Nations Charter speaks in the name of “We the Peoples…” The Universal Declaration of Human Rights, adopted in 1948 refers to ‘the equal and unalienable rights of all members of the human family.,.”and declares that it is essential “that human rights should be protected by the rule of law.” These and many other international human rights instruments reflect the growing realization that true sovereignty lies in the people and not the state. Today, no nation and no person can be above the law. No one should oppose the creation of new institutions being created to help realize the dreams of suffering humanity.

    Professor Kissinger is quite right to insist on due process protection and fair trials for every accused but his assumption that these rights will be flouted by the ICC is completely unfounded. Quite the contrary, the best way to be sure that law will not be abused as a weapon to settle political disputes is to create a competent international court composed of highly qualified judges from many nations bound by rules that guarantee a fair trial under internationally approved standards and scrutiny. As of July 1, 2001, 36 states , including sme of our staunchest allies, have completed the ratification process thereby confirming their unconditional acceptance of the Court. U.S. insistence upon complete immunity for all U.S. nationals is viewed by many of our friends as a repudiation of vaunted U.S. ideals and an unacceptable affront to the rule of law that must apply equally to everyone.

    The ICC seeks to usher in a new regime of increased respect for international law. The court will have no jurisdiction over crimes committed before the court comes into existence. There is no retroactivity. Only crimes of concern to the international community as a whole, such as genocide, crimes against humanity and major war crimes, can be tried. The supreme international crime – aggressive war – can only be considered later – if there is a near- unanimous amendment Furthermore, it must not be forgotten that national courts are given priority and the ICC will have jurisdiction only where the national courts are unable or unwilling to provide the accused with a fair trial. The Security Council can block prosecutions indefinitely if needed for reconciliation or peace. Administrative and budgetary controls are clearly defined. Without its own police force, the court must depend upon the Security Council to enforce its decisions. Enforcement can be vetoed by any of the five privileged Permanent Members, including the U.S. Kissinger’s reference to the “unlimited discretion” of the prosecutor is unfounded. Many safeguards are written into the statute. A court that acts arbitrarily or seeks to abuse its limited powers will soon cease to exist.

    Kissinger argues that the International Criminal Tribunal for Yugoslavia (ICTY), created at U.S. behest in 1993, had the affrontry to receive a “complaint” alleging that punishable crimes against humanity had been committed during the NATO air campaign in Kosovo in 1999. He should have stressed that in this instance the ICTY Prosecutor properly dismissed the complaint and refused to issue an indictment. The statute that governs the ICTY was approved by the United States and the United Nations for the purpose of bringing to justice those leaders responsible for crimes against humanity committed since 1991 in that particular region. It made no exceptions for U.S. nationals or others. The burden is always on the prosecutor to prove beyond doubt that the law has been violated. It must be shown that the accused knew or should have known that the deeds were criminal and that the defendant had the obligation and ability to prevent the crimes from happening. Despite initial difficulties and occasional shortcomings the ICTY has earned respect for its very fair treatment of the accused and its development of international criminal law. It is a new-born babe that must be helped and encouraged and not disparaged.

    The innocent need not fear the rule of law. Kissinger’s misperceptions about current international law lead him to the erroneous conclusion that if the U.S. dos not ratify the ICC treaty Americans will be outside its reach and hence protected from malicious accusations. He fails to notice that without the protective shield of binding international law and institutions to enforce it, the military captive is completely at the mercy of his captors. In every democratic society it is unavoidable that some unjustified complaints may be lodged for political or other nefarious purposes. It is also inevitable that some judgments may go awry and some judges may be incompetent or worse. That is no reason to abolish courts or to refuse to accept new courts where needed. Outstanding American international legal experts, including ten former Presidents of the American Society of International Law and the American Bar Association have, after careful study, concluded that it would be in the best interests of the United States and its military personnel for the United States to accept the proposed ICC as quickly as possible. The same conclusion was reached in 2000 by outstanding professors of the Harvard law School after a careful study by leading military and legal experts assembled by the venerated American Academy of Arts and Sciences.

    A politically conservative constituency in the United States argues for the protection of American sovereignty as though we were still in the Middle Ages. Senator Jesse Helms of North Carolina has been a leading opponent of the ICC. Even though the U.S. Constitution vests the President with the power to negotiate and sign treaties, the distinguished Senator did not wait for the President to submit the ICC treaty to the Senate for its needed advice and consent but intruded into Presidential prerogatives by proclaiming that it would be “dead on arrival.”. The wily Senator also introduced legislation deceptively named “The Servicemembers Protection Act” designed to abort the ICC by imposing economic and military sanctions against states that support the court. He managed to have its submission endorsed by Henry Kissinger and several other distinguished former public servants, whose signature seemed more an act of political fealty than considered legal judgment since it relied on many arguments that were demonstrably false. Opponents of the ICC refuse to recognize that in today’s interdependent world all major problems are global and require global solutions. Binding international rules have become necessary and are accepted universally to protect the common interest. The prevention of massive crimes against humanity deserves equal protection of universal law.

    Mr. Kissinger makes an argument that, when needed, additional ad hoc tribunals can be created by the Security Council. Until the ICC is fully functional ad hoc courts may prove to be unavoidable to curb some of the more outrageous cases of impunity. But a bevy of independent courts is hardly an adequate deterrent to universal crimes. Justice regarding the most serious crimes in the world can not depend upon the political whim of those who control the United Nations. The crimes must be spelled out in advance and not condemned only retroactively. Temporary courts created a la carte are very costly and lack the uniformity required by an international legal system. It is understandable that a former Secretary of State should not be eager to place national politicians under the supervision of an international judicial system. He accuses the ICTY of allowing ” prosecutorial discretion without accountability” – ignoring all the controls that exist to prevent abuse. He makes the unfounded allegation that the “definitions of the relevant crimes are vague and highly susceptible to politicized application.” His statement that “defendants will not enjoy due process as understood in the United States” is refuted by a host of prominent international lawyers, including a former Legal Adviser to both the Defense and State Departments. (See 95 American Journal of International Law (Jan. 2001) 124.)

    In concluding, Kissinger, the constant diplomat, makes three “Modest Proposals”. He suggests that the Security Council appoint a committee to monitor human rights violations and report when judicial action appears necessary. If the local government has not been democratically elected or seems incapable of sitting in fair judgment, the Council may set up additional ad hoc tribunals. But the Council must specify the scope of prosecutions and provide for due process. He fears “one sidedness” of the pursuit of universal jurisdiction which “may undermine the political will to sustain the humane norms of international behavior so necessary to temper the violent times in which we live.” He ignores the reality that other states will demand the same rights that the U.S. wishes to reserve for itself. What it boils down to in the end is that Henry Kissinger says he agrees with the goals of the international criminal court, and even gives some credit to its advocates, but he fails to recognize that the safeguards he seeks from an ICC are already in place. He remains uncomfortable with what he perceives to be the speed and vigor with which the idea of universal crimes punishable in an international court is now moving forward. His call for a public debate is fully justified. Let an informed public study the facts and then let the politicians know whether they prefer politics as usual to law.

    *Benjamin B. Ferencz, J.D. Harvard 1943, a former Nuremberg war crimes prosecutor.

  • WARNING

    A misguided trap is being set by right wing conservatives. It threatens our national security interests and endangers our military personnel. A cleverly mislabeled “Servicemembers Protection Act,” was recently passed by the House and is now pending in the Senate where it was appended as an amendment linked to the Foreign Relations Act authorizing payment of arrears to the United Nations. In the guise of protecting our military, the amendment is clearly designed to abort the creation of an International Criminal Court (ICC) now being formed at the United Nations. The Act threatens to impose economic and military sanctions against any nation that dares to support the Court.

    Republican Senator Jesse Helms of North Carolina leads the vigorous campaign that would repudiate the rule of law laid down at the Nuremberg trials after World War II – that aggression, genocide, crimes against humanity and major war crimes would never again go unpunished. Senator Helms and his supporters demand exemption and immunity for all U.S. personnel. Conservative attempts to abort the ICC defy the clear wishes of the vast majority of nations, including our leading European allies. We are seen as a bully that wants the rule of law for everyone else but not for ourselves. Without such a court, our military personnel will remain completely at the mercy of their captors, rather than under the protective shield of a fair tribunal created and supervised by the international community.

    The campaign to kill the court relies on unfounded allegations designed to frighten an uninformed public. Scholarly studies by outstanding legal experts agree that it would be in the U.S. national interest to support the International Criminal Court. See for example, the publication last year by the American Academy of Arts and Sciences , the comprehensive speech by Senator Leahy of Vermont on Dec. 15, 2000; the recommendation of the American Bar Association in Feb. 2001, the conclusion sent to Congressman Henry Hyde on Feb. 13, 2001 by ten former Presidents of the American Society of International Law, endorsing “U.S. acceptance of the Treaty without change…”; the editorial in the American Journal of International Law by Monroe Leigh, former Counsel to both the State and Defense Departments, that the United states can most effectively protect its national-security interests, as well as the individual interests of U.S. nationals, by accepting the International Criminal Court, ” — better sooner than later.” ((95 AJIL 131, Jan. 2001). None of these persuasive opinions are ever mentioned by opponents of the ICC.

    Those who believe in the rule of law that applies equally to everyone had better let their voices be heard very soon if we are to move toward a more humane and peaceful world.

  • The Battle Lines Are Being Drawn over the International Criminal Court

    The battle lines are being drawn between those who believe in the rule of law and those who do not. A powerful and respected American voice that has been raised to support the establishment of the International Criminal Court. It rebuts the ill-informed and misguided views of those who denounce the proposed court as a threat to American interests and military personnel. It deserves the widest possible dissemination by those who support the ICC.

    Monroe Leigh has been Legal Adviser to both the State and Defense Departments. He is a past President of the American Bar Association and the American Society for International Law and is an outstanding authority. On Feb. 21, 2001, he wrote to Chairman Hyde, of the House Committee on International Relations, that the Bill introduced by Senator Jesse Helms (The American Service Member’s Protection Act S.2726, June 14, 2000) as a preemptive strike against the ICC, (and opposed by the State and Defense departments) was replete with misconceptions . Nonetheless, the Senator had managed to obtain signatures from, a dozen distinguished American leaders, including ex- Secretaries of State, CIA and National Security Advisers, in opposition to the ICC. Leigh, ever the gentleman, said the signatories were simply misinformed. In fact, assured Leigh, the ICC would offer greater protection to Americans in military service than now exits at home or abroad.

    Leigh warned that persistent efforts by U.S. negotiators to exempt American military personnel from legal restraints that other nations were being asked to accept could only exacerbate relations with our allies. To rebut the signatories assembled by Helms, ten former Presidents of the America Society of International Law, including its Honorary President Stephen Schwebel, added their names to the Leigh memo. These very distinguished American jurists – in their personal capacities – concluded that the U.S. should accept the Treaty for an ICC “without change in the text.”

    To top it off, Monroe Leigh wrote a COMMENT that will appear in the next issue of the prestigious American Journal of International Law (Vol.95.No.1, A. 2001). He analyzes the arguments put forward by those who would reject the ICC – described by Leigh as “the most important international juridical institution that has been proposed since the San Francisco Conference of 1945.” He notes that under existing international law the sovereign of the territory where a crime is committed has jurisdiction to try the captured offender. The notion that U.S. nationals cannot be tried for war crimes if their government is not a party to the ICC treaty is not supported by existing international law as recognized by the highest U.S. courts. Strident demands for exceptionalism can only reinforce suspicions about American hegemonic ambitions. Leigh notes ICC provisions that give national courts absolute priority to try the accused in a fair trial. He ridicules “the specter of the politically motivated Prosecutor” and spells out the many safeguards that will prevent abuse and protect the rights of the accused. He dismisses the criticism that the ICC might deny due process to U.S. service personnel as “totally misplaced.” His conclusion: “In sum, the United States can most effectively protect its national-security interests, as well as the individual interests of U.S. nationals, by accepting the Statute of Rome – better sooner than later.”

    Many others, of course, have spoken out in favor of the Court, including the excellent survey of legal experts by the American Academy of Arts and Sciences.. The conclusion of that comprehensive study, articulated by Harvard Law Professors Abram Chayes and Anne-Marie Slaughter: “The United states should be taking the lead in shaping these new institutions. It is not too late.” Opponents of the ICC do not speak for the United States. Leigh, a conservative “establishment” man of impeccable credentials, has raised a respected voice in opposition to unsound harangues coming from uninformed adversaries.. (I am grateful to Heather Hamilton of the World Federalist Association for drawing my attention to the Leigh correspondence.)

    Despite the organized and vocal opposition to the ICC, President Clinton directed Ambassador Scheffer (who represented the U.S. at the U.N. with distinction) to sign the Treaty at the last moment. It was an important symbolic act – showing that the outgoing Administration favored the goals of the ICC, despite need for improvements. Opponents of the ICC howled with anger and threatened to erase the signature – a rather bizarre suggestion. The U.S. now sits silent at the U.N. deliberations. The new Republican Administration will have to be persuaded that the ICC is in our national interest. Let the voice of the informed public now be heard

  • Ben Ferencz Sound the Alarm

    Dear Friends:

    Thanks to all of you who have disseminated information that should sound the alarm regarding a new threat designed to abort the establishment of an international criminal court I refer to House Concurrent Resolution 23, submitted by Republican Representative Ron Paul of Texas and colleagues on Feb. 8, 2001. (He was the only member of Congress who voted against House Res. 34 on Feb, 13, 2001, calling for peace in the Middle East.)

    H.C.R. 23 expresses “the sense of Congress that President George W. Bush should declare to all nations that the United States does not intend to assent to or ratify the International Criminal Court Treaty… and the signature of President Clinton to that treaty should not be construed otherwise.” . An organization called “The Liberty Committee” (boasting that it has some 50,000 members representing every district in the USA) has launched a nationwide campaign and has reported that some 20,000 people have already signed their petition to President Bush to rescind the signature to the treaty authorized by President Clinton on Dec. 31, 2000. The Resolution has been referred to the House Committee led by Representative Hyde who is reported to have denounced the treaty as “an assault on our sovereignty.”

    Everyone, of course, is entitled to express their own views regarding the court. But it should be cause for grave concern to see the Petition of “The Liberty Committee”, displaying the American flag and the heading AMERICAN JUSTICE FOR AMERICANS, list on their website a host of press releases and articles, editorial and position papers denouncing the court for reasons that are palpably false and misleading. This is part of a well organized attempt to frighten and stampede the American public into believing that the new court would pose a threat to the United States, its military personnel and all its citizens . The arguments and goals are similar to those made in connection with the pending U.S. Servicemembers Protection Act introduced by Senator Jesse Helms of North Carolina, the most outspoken critic of the Court.

    No one argues that the treaty is perfect – far from it – but it is a important new institution to deter major international crimes against humanity by bringing leading perpetrators to justice. The recent careful study by the American Academy of Arts and Sciences contains views of leading scholars from academia, the government and the military that support the conclusion that signing the treaty would be in the interest of the United States.

    The views of the so-called “Liberty Committee,” are reminiscent of the “America First” positions prior to World War II. Isolationism and unilateralism can only exacerbate the growing feeling abroad that the U.S. seeks to lay down rules for the rest of the world that it is not willing to accept for itself. That would be a flagrant repudiation of legal principleslaid down by the United States and its allies at Nuremberg and hailed by the entire General Assembly of the United Nations. Helen Brady’s fine article of Feb. 13, circulated by the CICC, made plain that the ICC would not diminish national sovereignty but would reinforce a nation’s “commitment to a peaceful and just world and the rule of law.” NGO’s in the coalition, and nations, including America’s leading allies, that have signed on for the court, have made plain that they share the same view. We must continue to make our voices heard if this great hope is to be kept alive until a more favorable climate for its ratification by the U.S. can be created. Please see my website for more detailed comments.

    Now is the time for all good men, and women, to come to the aid of their country.

    Benjamin B. Ferencz

  • Statement by the President on Signing the International Criminal Court Treaty

    The United States is today signing the 1998 Rome Treaty on the International Criminal Court.In taking this action, we join more than 130 other countries that have signed by the December 31, 2000 deadline established in the Treaty. We do so to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity. We do so as well because we wish to remain engaged in making the ICC an instrument of impartial and effective justice in the years to come.

    The United States has a long history of commitment to the principle of accountability, from our involvement in the Nuremberg tribunals that brought Nazi war criminals to justice, to our leadership in the effort to establish the International Criminal Tribunals for the FormerYugoslavia and Rwanda. Our action today sustains that tradition of moral leadership.

    Under the Rome Treaty, the International Criminal Court (ICC) will come into being with the ratification of 60 governments, and will have jurisdiction over the most heinous abuses that result from international conflict, such as war crimes, crimes against humanity, and genocide. The Treaty requires that the ICC not supercede or interfere with functioning national judicial systems; that is, the ICC Prosecutor is authorized to take action against a suspect only if the country of nationality is unwilling or unable to investigate allegations of egregious crimes by their national. The U.S. delegation to the Rome Conference worked hard to achieve these limitations, which we believe are essential to the international credibility and success of the ICC.

    In signing, however, we are not abandoning our concerns about significant flaws in the Treaty. In particular, we are concerned that when the Court comes into existence, it will not only exercise authority over personnel of states that have ratified the Treaty, but also claim jurisdiction over personnel of states that have not. With signature, however, we will be in a position to influence the evolution of the Court. Without signature, we will not.

    Signature will enhance our ability to further protect U.S. officials from unfounded charges and to achieve the human rights and accountability objectives of the ICC. In fact, in negotiations following the Rome Conference, we have worked effectively to develop procedures that limit the likelihood of politicized prosecutions. For example, U.S. civilian and military negotiators helped to ensure greater precision in the definitions of crimes within the Court’s jurisdiction.

    But more must be done. Court jurisdiction over U.S. personnel should come only with U.S. ratification of the Treaty. The United States should have the chance to observe and assess the functioning of the Court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied.

    Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead.

  • Letter to President Clinton from Nuremberg Chief Prosecutor Ben Ferencz

    President William Jefferson Clinton
    The White House, Pennsylvania Ave.
    Washington D.C. 20500

    December 6, 2000

    Dear Mr. President:

    Over 53 years ago, I was the Chief Prosecutor in a trial brought by the United States in Nuremberg against 22 SS leaders who were convicted of murdering over a million people in cold blood. I fought in every campaign in Europe in World War II and gathered evidence in Nazi death camps. Since then, my life has been dedicated to making this a more humane and peaceful world. On this, “Veteran’s Day” I appeal to you as President and Commander-in-Chief, to exercise your constitutional authority by signing the Rome Treaty for the creation of an International Criminal Court (ICC).

    I recall how thousands cheered at the Dodd Center in Connecticut in 1995, when you said: “Nuremberg was a crucial first step… Now it falls to our generation to make good on its promise..we have to do it,… we must do it…We have an obligation to carry forward the lessons of Nuremberg. ” When you addressed the General Assembly of the United Nations on Sept.22, 1997, you told the world:…: “before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law.”

    After you sign the treaty, it will be up to your successor to determine whether further measures may be warranted before submission of the treaty to the Senate for its consent before it can be ratified. There will be ample time to debate the details. Your signing now will be an important affirmation that you have not abandoned principles you have so eloquently enunciated. It will help allay fears of small States that feel threatened by misguided Congressional proposals to impose sanctions against any nation that dares to support the ICC. It will uphold the integrity and reputation of our government as a leading champion of the rule of law.

    I am mindful and respectful of objections raised by some members of Congress and the Pentagon. As a 1943 Harvard law graduate and author of countless books and articles on this subject (See my web-site,) it is my considered judgment that such fears are exaggerated and misplaced. The treaty has been found acceptable by many of our staunchest allies. A comprehensive American Academy of Arts and Sciences study, including leading U.S. military and academic experts, concluded that failure to sign now “will miss an opportunity of serious dimensions. And the loss will have an impact on U.S. national interests far beyond the work of prosecuting war crimes.” With every good wish,

    Sincerely,
    Benjamin Ferencz