Nuclear Age Peace Foundation

Tag: ICC

  • US Opposes ICC Bid to Make ‘Aggression’ a Crime Under International Law

    This article was originally published by the Christian Science Monitor.

    The United States under the Obama administration has developed an increasingly close working relationship with the International Criminal Court in The Hague. But that growing engagement with a controversial institution of international law was unable to prevent the ICC from expanding the scope of its work to include the murky crime of “aggression,” a move the US had vehemently opposed.

    At the 111-nation ICC’s first review conference that wrapped up last week in Kampala, Uganda, delegates decided to expand the international court’s purview to include the crime of aggression – a crime that only the US has successfully tried, in the post-World War II tribunals in Nuremburg and Tokyo.

    State Department officials say the US, which is not a signatory to the ICC, was able to mitigate the drawbacks of such an expansion of the court’s reach, primarily by putting off any prosecution of the newest international crime until at least 2017.

    But some critics say the US failure to stop the enshrining of “aggression” as an international crime demonstrates the limits of President Obama’s multilateralist vision – and sets the US on a collision course with the ICC when the issue comes up again later in the decade.

    “The fact remains that the Obama administration’s vaunted ‘engagement’ strategy was only able to check the ICC’s move towards defining ‘aggression,’ not stop it entirely,” says Brett Schaefer, an expert in international institutions at the Heritage Foundation in Washington. “And it sets the US up for another battle in 2017 when the ICC’s advocates will make another push to activate the ICC’s jurisdiction over ‘aggression.’”

    The US confirmed its new footing with the world’s first permanent court for trying war crimes and crimes against humanity, US officials say, although they acknowledge that the US did not get everything it wanted in Kampala. The Rome Statute establishing the ICC was finalized in 1998, but the court did not begin to function until 2002, when the minimum 60 countries ratified it.

    US participation in the Kampala conference “reset US relations with the court from hostility to positive engagement,” says State Department legal adviser Harold Koh. He says the US focus at the review conference was on efforts to “strengthen justice on the ground” in countries so that eventually their judicial systems will be strong enough to take on the kinds of human-rights work the ICC addresses.

    Mr. Koh says that focus was particularly well-received in Africa, “where there is a strong desire to have these cases tried at the national level.”

    Some ICC critics have also noted that the court has only taken up two cases so far, both involving African countries – one involving the Democratic Republic of the Congo and Uganda, and the other regarding Sudan – and they dismiss the largely European-Union funded court as a colonial institution pressing Western interests.

    But the US increasingly sees the value of the ICC, especially as it has tried cases that begged for international intervention.

    “If it weren’t for the ICC [in cases like Sudan or Uganda] you would have had to set up a special tribunal,” says Stephen Rapp, the State Department’s coordinator for war crimes issues.

    One of the main US concerns in seeing “aggression” added to the ICC’s jurisdiction was the impact it could potentially have on US military operations abroad. But Koh says the US successfully negotiated the “aggression” statute’s wording so that US forces won’t be susceptible to it.

    “No US national can be prosecuted for ‘aggression’ while the US is not a signatory” to the ICC, he says.

  • Ten Years of the International Criminal Court

    “For nearly a half a century — almost as long as the United Nations has been in existence — the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought that the horrors of the Second World War — the camps, the cruelty, the exterminations, the Holocaust — could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time — this decade even— has shown us that man’s capacity for evil knows no limits. Genocide is now a word of our time too, a heinous reality that calls for a historic response.” — Koffi Annan, then UN Secretary-General

    July 17 marks the 10th anniversary of the Diplomatic Conference in Rome that established the International Criminal Court — a major step in the creation of world law. Citizens of the world have usually made a distinction between international law as commonly understood and world law. International law has come to mean laws that regulate relations between States, with the International Court of Justice — the World Court in The Hague — as the supreme body of the international law system. The Internatiional Court of Justice is the successor to the Permanent Court of International Justice that was established at the time of the League of Nations following the First World War. When the United Nations was formed in 1945, the World Court was re-established as the principal judicial organ of the UN. It is composed of 15 judges who are elected by the UN General Assembly and the Security Council.

    Only States may be parties in cases before the World Court. An individual cannot bring a case before the Court, nor can a company although many transnational companies are active at the world level. International agencies that are part of the UN system may request advisory opinions from the Court on legal questions arising from their activities but advisory opinions are advisory rather than binding.

    Citizens of the world have tended to use the term “world law” in the sense that Wilfred Jenks, for many years the legal spirit of the International Labour Organization, used the term the common law of mankind: “By the common law of mankind is meant the law of an organized world community, contributed on the basis of States but discharging its community functions increasingly through a complex of international and regional institutions, guaranteeing rights to, and placing obligations upon, the individual citizen, and confronted with a wide range of economic, social and technological problems calling for uniform regulation on an international basis which represents a growing proportion of the subject-matter of the law.” It is especially the ‘rights and obligations’ of the individual person which is the common theme of world citizens.

    The growth of world law has been closely related to the development of humanitarian law and to the violations of humanitarian law. It was Gustave Moynier, one of the founders of the International Committee of the Red Cross (ICRC) and a longtime president of the ICRC who presented in 1872 the first draft convention for the establishment of an international criminal court to punish violations of the first Red Cross standards on the humane treatment of the sick and injured in periods of war, the 1864 Geneva Convention. The Red Cross conventions are basically self-enforcing. “If you treat my prisoners of war well, I will treat yours the same way.” Governments were not willing to act on Moynier’s proposition, but Red Cross standards were often written into national laws.

    The Red Cross Geneva conventions deal with the way individuals should be treated in time of war. They have been expanded to cover civil wars and prisoners of civil unrest. The second tradition of humanitarian law arises from the Hague Conventions of 1899 and 1907 and deals with the weapons of war and the way war is carried on. Most of the Hague rules, such as the prohibition against bombarding undefended towns or villages, have fallen by the side, but the Hague spirit of banning certain weapons continues in the ban on chemical weapons, land mines and soon, cluster weapons. However, although The Hague meetings made a codification of war crimes, no monitoring mechanisms or court for violations was set up.

    After the First World War, Great Britain, France and Belgium accused the Central Powers, in particular Germany and Turkey of war atrocities such as the deportation of Belgian civilians to Germany for forced labor, executing civilians, the sinking of the Lusitaniaand the killing of Armenians by the Ottoman forces. The Treaty of Versailles, signed in June 1919 provided in articles 227-229 the legal right for the Allies to establish an international criminal court. The jurisdiction of the court would extend from common soldiers to military and government leaders. Article 227 deals specifically with Kaiser Wilhelm II, underlining the principle that all individuals to the highest level can be held accountable for their wartime actions. However, the USA opposed the creation of an international criminal court both on the basis of State sovereignty and on the basis that the German government had changed and that one must look to the future rather than the past.

    The same issues arose after the Second World War with the creation of two military courts — the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East. Some have said that these tribunals were imposing ‘victors’ justice on their defeated enemies, Germany and Japan. There was no international trial for Italians as Italy had changed sides at an opportune time, and there were no prosecutions of Allied soldiers or commanders.

    In the first years of the United Nations, there was a discussion of the creation of an international court. A Special Committee was set up to look into the issue. The Special Committee mad a report in 1950 just as the Korean War had broken out, marking a Cold War that would continue until 1990, basically preventing any modifications in the structure of the UN.

    Thus, during the Cold War, while there were any number of candidates for a war crime tribunal, none was created. For the most part national courts rarely acted even after changes in government. From Stalin to Uganda’s Idi Amin to Cambodia’s Pol Pot, war criminals have lived out their lives in relative calm..

    It was only at the end of the Cold War that advances were made. Ad hoc international criminal courts have been set up to try war crimes from former Yugoslavia, Rwanda, and Sierra Leone. Just as the Cold War was coming to an end, certain countries became concerned with international drug trafficking. Thus in 1989, Trinidad and Tobago proposed the establishment of an international court to deal with the drug trade. The proposal was passed on by the UN General Assembly to the International Law Commission, the UN’s expert body on international law. By 1993, the International Law Commission made a comprehensive report calling for a court able to deal with a wider range of issues than just drugs — basically what was called the three ‘core crimes’ of genocide, crimes against humanity and war crimes.

    By the mid-1990s, a good number of governments started to worry about world trends and the breakdown of the international legal order. The break up of the federations of the USSR and Yugoslavia, the genocide in Rwanda, the breakdown of all government functions in Somalia, the continuing north-south civil war in Sudan — all pointed to the need for legal restraints on individuals. This was particularly true with the rise of non-State insurgencies. International law as law for relations among States was no longer adequate to deal with the large number on non-State actors.

    By the mid-1990s, the door was open to the new concept of world law dealing with individuals, and the drafting of the statues of the International Criminal Court went quickly. There is still much to be done to develop the intellectual basis of world law and to create the institutions to structure it, but the International Criminal Court is an important milestone.

    René Wadlow is the Representative to the United Nations, Geneva, Association of World Citizens and the editor of the online journal of world politics and culture www.transnational-perspectives.org

  • Arthur N.R. Robinson and the Power of One

    I believe in the Power of One, the capacity of a single individual to make an important difference in our world. In many ways, this may seem like an article of faith, rooted in hope. But, in fact, it is more than an article of faith, for there are indeed individuals whose lives have made a significant difference in improving our world. One such individual is Arthur N.R. Robinson, who has served as both Prime Minister and President of his country. He has had a remarkable and charmed life, and he has altered the course of history by his extraordinary leadership in the creation of an International Criminal Court.

    In the 1980s, I became a supporter of the creation of an International Criminal Court, having been introduced to the idea by Robert Woetzel, a man who was also a close and long-time friend of President Robinson. I made many trips to the United Nations to encourage progress on this lofty idea of creating a court that would follow in the Nuremberg tradition of holding individual leaders to account for the commission of heinous crimes: crimes against peace, war crimes and crimes against humanity. Although it was clear that this was a much needed innovation to the international system of institutions, it seemed quite unlikely at that time that it would be possible to gain the requisite international support for this bold conception.

    And yet, by 1998, the countries of the world gathered in Rome and established a Treaty to create this new Court, a court that would give life to the Principles of Nuremberg as we moved into a new century. It is certain that this essential innovation in international institution building could not have occurred were it not for a single individual, Arthur N.R. Robinson, who as the Prime Minister of Trinadad and Tobago put the United Nations on track to achieve this goal. Of course, many other people played important roles as well, but without this head of government taking bold action to put the matter on the agenda of the United Nations it could not have happened.

    Some people believe that only the big and powerful countries can influence the international system and the course of history. They are wrong. Trinidad and Tobago, under the leadership of a man of vision and determination, led the way to the establishment of an International Criminal Court, an institution that holds the promise of restoring integrity to world affairs. President Robinson and Trinidad and Tobago should be justly proud of what they have accomplished. By this effort and accomplishment Trinidad and Tobago has earned a vaulted place on the international map.

    A.N.R. Robinson, even as he enters his ninth decade of life, has not chosen to rest upon his laurels, as much as he may deserve to do so. Rather, he has recently accepted the responsibility to join the distinguished five-member Board of Directors of the Trust Fund for Victims of International Crime, and in that capacity he continues to play an important role in working for justice in the international system.

    I wonder if the people of Trinidad and Tobago recognize how significant their contribution to building this new international institution has been. Perhaps they appreciate President Robinson’s efforts, but do they embrace these efforts with a sense of national pride? And, most important, do they join in the commitment to strengthening the structure of international criminal law so that the world may be spared future aggressive wars, genocides and crimes against humanity by having in place a mechanism to hold individual leaders to account for the commission of such crimes?

    There remains an important role for the citizens of Trinidad and Tobago to play on this issue – both at the government level and also at the level of civil society – that is so critical for humanity’s future. I hope that the government of Trinidad and Tobago will not give up its efforts to further the system of international criminal justice represented by the International Criminal Court. Perhaps, though, the government of this country, like most governments, will need a push from below, from its citizens, if it is to rise to a higher plane.

    I would like to propose that citizens of Trinidad and Tobago create a civil society organization that will provide creative ideas and assert public pressure for strengthening the International Criminal Court. The work of such a civil society organization could connect with the United Nations and with like-minded citizens throughout the world. It could carry forward the vision of A.N.R. Robinson and build upon his work. And I would hope that for many years to come he would be a wise and patient mentor to the youthful participants in such an organization.

    There is much still to be done. Sadly, I must recognize that my country, a country of enormous economic and military power but presently lacking a sound moral foundation, has refused to join the International Criminal Court and has actively opposed it. The United States government has forced other countries throughout the world to sign bilateral agreements with it, stating that they will never turn over US citizens to the International Criminal Court, regardless of the crimes committed. This is a very different United States government than the one that supported and encouraged the Nuremburg Tribunals following World War II. It is a government that is unfortunately seeking to protect its own high authorities from scrutiny and accountability for their own wrongdoing.

    We know that changing the world is not an easy matter. There is no magic wand. It takes the determination of great leaders of vision like A.N.R. Robinson, but it also takes the commitment and persistence of many people who join together for a noble cause. I think it would be extremely significant for Trinidad and Tobago and useful for the world to establish here the civil society organization I have mentioned with the purpose of forwarding the goal of an International Criminal Court that will be universal in its jurisdiction and by its legal force will raise the moral standards of humankind. Personally, I would like to see this organization originate in Trinidad and Tobago and be called, the A.N.R. Robinson Center for International Criminal Justice. It could be an institute within the newly established A.N.R. Robinson Museum, Library and Ethics Center that will be located in Castara on the island of Tobago.

    A.N.R. Robinson’s life strengthens my faith in the power of an individual to make a difference in our world. He is a man of rock solid principles. Integrity and courage have been the hallmarks of his life and career. As a political leader, he understood clearly the need for all leaders to be held to high standards if we are to have justice. And thus, in pursuing an International Criminal Court, A.N.R. Robinson acted for the benefit of all humanity.

    The number of people of whom this can be said is not large, and includes some of the greatest peace leaders of our time. I believe that it is a high badge of honor. At the Nuclear Age Peace Foundation, we honored President Robinson with our Distinguished Peace Leadership Award in 2002, and he was kind enough to come to Santa Barbara to receive the award. This is only one of the many awards he has received for his efforts to establish an International Criminal Court.

    When a man of such great accomplishments in the world as A.N.R. Robinson is kind and humble, it reveals a nobility of spirit. I feel very fortunate to count among my friends a man of such bright and noble spirit, sterling character and significant achievements as Arthur N.R. Robinson.

     

    David Krieger is president of the Nuclear Age Peace Foundation (www.wagingpeace.org). He is a leader in the global effort for a world free of nuclear weapons.

  • The Holocaust and the Nuremburg Trials

    The greatest tribute we can pay to the memory of those who perished in the Holocaust and similar tragedies is never to stop trying to make this a more humane and peaceful world. The United Nations Charter of June 1945, expressed the determination “to save succeeding generations from the scourge of war.” Its Preamble spoke of the equality of nations large and small. It called for enhanced social justice, tolerance and respect for international law. In August 1945, the United States, the Soviet Union, Great Britain and France signed another Charter – creating the International Military Tribunal (IMT) — to bring to justice some of the German leaders responsible for aggression, crimes against humanity. and related atrocities. How far have we come and what more must be done before these noble goals can be achieved?

    THE LEGACY OF NUREMBERG

    The International Military Tribunal

    Germany had surrendered unconditionally. Each of the four occupying powers assigned leading jurists to serve as judges and prosecutors for the IMT. It was agreed that the proceedings had to be absolutely fair. The situs would be in Nuremberg, the home of Nazi party rallies. Robert M. Jackson, leading architect for the trials, took leave from the US Supreme Court to serve as America’s Chief Prosecutor. In his Opening Statement, Justice Jackson set the standard: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.”

    Adolf Hitler and some of his top aides committed suicide, as did Field-Marshal Hermann Goering after he was sentenced to death by the IMT. Of the twenty-four defendants, three were acquitted, nine were imprisoned and twelve were sentenced to hang. The world was put on notice that those who held the reins of power would be accountable for their crimes. The learned IMT jurists confirmed the legal jurisdiction of the court and the validity of the charges under existing law. All proceedings were open to the public. The accused were presumed innocent, given humane treatment, and guaranteed rights, which they, in the days of their pomp and power, never gave to any man.

    After the widely adopted Kellogg Pact of 1928 outlawed the use of force, it should have come as no ex-post facto surprise to Nazi leaders that their blitzkrieg against other states would no longer be tolerated. Jackson noted that international law does not stand still but gradually evolves to meet changing needs. In 1946, the Nuremberg judgment and principles were unanimously affirmed by the first General Assembly of the United Nations. The law had taken a step forward. Aggressive war, which had previously been accepted as an international right, was confirmed as a punishable international crime.

    Subsequent Trials in Nuremberg

    Subsequent trials at Nuremberg, Tokyo and elsewhere built on the IMT foundation. The Allied Powers were unable to agree on another joint international trial but each could try their own captives. Since the IMT could provide only a snapshot of Nazi criminality, the US decided to conduct a dozen “subsequent proceedings” to be directed by General Telford Taylor, a key player on Jackson’s staff. Indictments were filed against doctors who performed forced medical experiments, judges who perverted the law, industrialists, military leaders and ministers who supported illegal Nazi policies. 142 of the 185 tried in the “subsequent proceedings” were convicted.

    In April 1946, I was recruited by the Pentagon to return to Germany to assist with the “Subsequent Proceedings.” I had worked as a research assistant to a Harvard professor writing a book on war crimes before I joined the army, as a private in the artillery, in 1943. When US troops advanced into Germany, I was transferred to General Patton’s Headquarters to help set up a war crimes program. As a war crimes investigator, I dug up bodies of captured Allied flyers beaten to death by enraged German mobs. I entered many concentration camps with the liberating army and witnessed the horrors of the Holocaust firsthand. I assembled documents and data to prove the full extent of Nazi criminality. The trauma of those indescribable experiences has never left me.

    After setting up offices in Berlin to gather evidence to support the planned new prosecutions, General Taylor assigned me to be Chief Prosecutor in what was known as the Einsatzgruppen case. The defendants were leaders of SS units that followed advancing German troops into occupied Poland and the Soviet Union. Their mission was to kill, without pity or remorse, every Jewish man, woman and child they could lay their hands on. Gypsies and any other perceived threats to the Reich were to suffer the same fate. According to their secret reports, these extermination squads, totaling about 3000 men, deliberately massacred over a million innocent people. The victims were killed simply because they did not share the race, religion or ideology of their executioners.

    The Mentality of Mass Murderers

    To prevent acts of genocidal barbarism, one must understand the mentality and reasoning of the murderers. The twenty-two defendants in the Einsatzgruppen case were selected on the basis of high rank and education. Many held doctor degrees — six were SS Generals. The principle defendant, General Dr. Otto Ohlendorf, patiently explained why his unit had killed about 90,000 Jews. Killing all Jews and Gypsies was necessary, said Ohlendorf. as a matter of self-defense.

    According to Ohlendorf, it was known that the Soviets planned total war against Germany. A German preemptive strike was better than waiting to be attacked. It was also known, said Ohlendorf, that Jews supported the Bolsheviks – therefore all Jews had to be eliminated. But why did he, the father of five children, kill the little babes — thousands of them? The bland reply was that if the children learned that their parents had been eliminated, they would grow up to be enemies of Germany. Long range security was the goal. He lacked facts sufficient to challenge Hitler’s conclusions. It was all very logical — according to General Dr. Ohlendorf.

    I had not called for the death penalty, although I felt it was richly deserved. I simply asked the court to affirm the right of all human beings to live in peace and dignity regardless of race or creed. It was “a plea of humanity to law.” The three experienced American judges concluded that a preemptive strike as anticipatory self-defense was not a valid legal justification for mass murder. If every nation could decide for itself when to attack a presumed enemy, and when to engage in total war, the rule of law would be destroyed and the world would be destroyed with it. All of the defendants were convicted; thirteen were sentenced to death and Ohlendorf was hanged. I was then 27 years old and it was my first case. The ideals that I then expressed have remained with me all of my life.

    HOW FAR HAVE WE COME?

    Restitution and Compensation

    Despite having promised my bride when we were wed in New York that we would be in Germany only for a brief honeymoon, we stayed on to help obtain restitution, compensation and rehabilitation for the survivors of persecution. As a salaried employee of Jewish charities, I directed innovative programs which had no historical or legal precedent. When, by 1956, Nazi victims of all persuasions had received payments from the West German government approaching about 50 billion dollars, we decided that it was time to return home with our four children born in Nuremberg. Practicing law in New York proved uninspiring. With war and killings raging all over the globe, I decided, at the age of fifty, to spend the rest f my life trying to replace the law of force by the force of law.

    New International Criminal Courts

    My mind turned to international criminal courts to deter international crimes. In 1946 the UN had called for a code of international crimes and an international criminal court to build on the Nuremberg precedents. Accredited as a member of a non-governmental organization, I obtained access to UN archives. I learned that delegates, unable, or unwilling, to agree upon a definition of the crime of aggression, argued that without it there could be no criminal code and without a code there could be no court. In truth, powerful nations were not ready to yield cherished sovereign prerogatives to any international criminal tribunal. After a definition of aggression by consensus was finally reached in 1974, the gates were opened for further work on the criminal code and court. The problems were thoroughly explored and documented in a number of books that I published between 1975 and 1983. My 1994 book New Legal Foundations for Global Survival was a comprehensive overview that UN Secretary General Kofi Annan generously described as “remarkable.”

    It took mass rapes in former Yugoslavia in 1991 to shake the world out of its lethargy. In 1993 the UN Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY), to hold accountable those responsible for crimes against humanity, war crimes and the genocide cloaked as “ethnic cleansing.” When – to the everlasting shame of the international community — over 800,000 people were butchered in Rwanda in fratricidal tribal rivalries, the Security Council set up another ad hoc tribunal, the International Criminal Tribunal for Rwanda (ICTR), to bring some of the instigators and perpetrators to justice.

    Similar international tribunals, with limited jurisdictions, are beginning to function for crimes against humanity committed in Cambodia, Sierra Leone, East Timor and elsewhere. It should be obvious that temporary courts, created for a limited time in a limited area after the crimes have been committed, is hardly the most efficient way to ensure international justice. The missing link in the world’s legal order was a permanent court with universally binding laws that might help deter such crimes before they occurred.

    The International Criminal Court in the Hague

    After many years of difficult negotiations and compromises, the Statute for an International Criminal Court (ICC) was adopted by a treaty signed in Rome on 17 July 1998. 120 delegations voted in favor and seven against. UN Secretary-general Kofi Annan called it “a gift of hope to future generations.” By July 1, 2002, the treaty went into effect with ratification by 60 nations. By the end of 2005, the number of ratification had swelled to one hundred. Ratification by some of the major powers is still outstanding. The United States, indicated its early support for the ICC, when President Bill Clinton addressed the General Assembly. He had the treaty signed at the UN on New Year’s Eve, 2000. But, in an unprecedented repudiation, the signature of President Clinton was canceled as the new Bush administration, in May 2002, notified the UN that the US had no intention of becoming a party to the ICC.

    Conservative forces in the US government argued that the uncontrolled prosecutor, might unfairly prosecute US servicemmbers. Nations were warned that US economic and military aid would be halted unless they signed agreements exempting US citizens and their employees from the reach of the new Hague tribunal. The US, that had done so much to advance the rule of law, turned its back on the Nuremberg principle espoused by Jackson, Telford Taylor and many others, that law must apply equally to everyone.

    The fears expressed by the US government are misguided and not shared by the hundred nations that support the ICC — including America’s staunchest allies and the entire European Community. Under the ICC Statute, every nation must be given priority to try its own nationals. Only when the country is unable or unwilling to provide a fair trial can the ICC exercise jurisdiction. No prosecutor in human history has been subject to more controls. The American Bar Association and leading jurists support the ICC. It is hoped that when the ICC has proved its fairness and merit, the US will end its unreasonable boycott and join the other nations seeking to uphold fundamental principles of international humanitarian law.

    WHERE ARE WE GOING?

    Changing the way People Think.

    In every great democracy it is inevitable that there will be differences of opinion. There have always been those who are convinced that warfare is an unchangeable part of man’s nature. War is seen as a glorious manifestation of Divine law — “the big fish eat the little fish. Despite pretensions to the contrary, such skeptics do not really believe in international law. They reject the utility of new rules of the road or new institutions that seek to improve human behavior. They deride as “dreamers” or “idealists” those who believe that entrenched practices and values can be altered. Yet, history proves they are mistaken.

    Slavery has been abolished, women’s rights are growing, colonialism has all but ended, sovereign states are forming multinational unions bound by common rules, international criminal law and humanitarian law have come into existence and international courts are beginning to flourish. Nations are increasingly recognizing that, in this interdependent world, they must cooperate for their common welfare. The revolution in technology and communication holds forth the promise of a completely altered international and integrated human society for the enhanced benefit of all.

    To be sure, adherence to traditional cultures can enhance the quality of life and should be nourished. Loyalty to one’s neighborhood, nation or religion are cherished values that should be respected. But, as Nuremberg showed, differences of race, religion or ideology cannot be tolerated as valid grounds for destroying those who happen to be different. It is not permissible “self-defense” to slaughter “the other” — it is the crime of murder.

    Aggression, according to the Nuremberg judges and other precedents, is “the supreme international crime” since it includes all the other crimes. There can be no war without atrocities and unauthorized warfare in violation of the UN Charter is the biggest atrocity of all. The best way to protect the lives of courageous young people who serve in the military is to avoid war-making itself. One cannot kill an idea with a gun but only with a better idea. If people believe that law is better than war they must do all they can to enhance the power of law and stop glorifying war.

    There can be no real peace for anyone until there is peace for everyone. Education for peace must start at the earliest ages and be carried through all the institutions and modalities of learning, Understanding, tolerance, compassion, compromise and infinite patience hold forth more promise than the threat of nuclear annihilation or the devastating perils of modern warfare. The memory of those who perished in the Holocaust, and countless wars since then, cry out for an improved social order and a more humane and peaceful world for everyone.

    Benjamin B. Ferencz, a member of the Nuclear Age Peace Foundation’s Advisory Council, was Chief Prosecutor in the Nuremberg war crimes trial against Nazi extermination squads. He directed postwar restitution programs for survivors of persecution, practiced law in New York, was an Adjunct Professor at Pace Law School and is the author of many books and articles. He is a frequent lecturer on world peace. See his website: www.benferencz.org.

  • Letter from Ben Ferencz on the ICC

    Dear Friends:

    As a former combat veteran, with five battle stars received with my honorable discharge after World War Two, I owe it to the forty-million people who died in that war not to remain silent in the face of official calumnies that endanger our nation and the brave young people who serve in its military forces. I write as a graduate of the Harvard Law School and a former Chief prosecutor for the United States in one of the Nuremberg war crimes trials and one who has devoted almost all of my life trying to help create a more humane and peaceful world under the rule of law.

    What follows is an extract from the official US Congressional Record, House of Representatives debate on July 15, 2004, under the heading H. 5881 and H 5882. to Amend the Foreign Operations Appropriations Bill. The views expressed by the Chairman of the House of Representatives, Republican Tom DeLay of Texas , in strongly opposing the International Criminal Court (ICC) are widely shared by other members of the Republican party, as well as some conservative Democrats. The arguments advanced in opposition to the new court are, in my very considered judgment, demonstrably false and deliberately deceptive. They do not serve the interests of the United States or any of its citizens.

    Extract from Congressional Record:

    Amendment No. 6 offered by Mr. Nethercutt: At the end of the bill (before the short title), insert the following: LIMITATION ON ECONOMIC SUPPORT FUND ASSISTANCE FOR CERTAIN FOREIGN GOVERNMENTS THAT ARE PARTIES TO THE INTERNATIONAL CRIMINAL COURT    SEC. __. None of the funds made available in this Act in title II under the heading “ECONOMIC SUPPORT FUND” may be used to provide assistance to the government of a country that is a party to the International Criminal Court and has not entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.

    The CHAIRMAN. Pursuant to the order of the House of today, the gentleman from Washington (Mr. Nethercutt) and a Member opposed each will control 5 minutes. The Chair recognizes the gentleman from Washington (Mr. Nethercutt).

    Mr NETHERCUTT. Mr. Chairman,…We have an obligation to protect our Armed Forces from unconstitutional extraterritorial prosecution. Moreover, this amendment sends a powerful message to the world community that when we commit U.S. troops overseas we will insist that they be protected by Article 98 agreements, if the Security Council will not do its part….

    The CHAIRMAN. The gentleman from Arizona (Mr. Kolbe) is recognized for 5 minutes.

    Mr. KOLBE. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, let me just say that I agree with the motivations of this amendment, but I absolutely have to oppose the substance of it. The reason I do so is because I think it is going to accomplish exactly the opposite of the intent of this amendment….If we accept it, the U.S. will be hamstringing itself, placing a straitjacket on its diplomatic tools, when we have a lot of U.S. national security objectives that must carry the same or equal weight as securing Article 98 agreements. I urge a “no” vote on this…  Mr. Chairman, I am happy to yield 1 minute to the gentleman from Texas (Mr. DeLay), the majority leader.

    Mr. DeLAY. Mr. Chairman,  Let me see if I have got this straight: The United Nations has created an International Criminal Court, a shady amalgam of every bad idea ever cooked up for world government. The United States, its President, this Congress and the American people has categorically, unequivocally and completely rejected the ICC and its insistence on threatening the American people with prosecution. We reject its laughable legitimacy, we reject its U.N.-American denial of civil rights, and we reject its anti-American politics. And yet the ICC still asserts jurisdiction over the American people, including American soldiers fighting the war on terror and still salivates at the prospect of prosecuting one of us for anything the U.N. does not like. Now, some nations who receive economic support from the United States may use the money we give them to arrest and hand over American citizens to the U.N.’s kangaroo court? I do not think so. President Bush has shown great leadership by removing the United States from the treaty creating the ICC, and Congress has passed legislation, the American Servicemembers Protection Act, to ensure our soldiers and peacekeepers around the world are protected from prosecution in it. Federal law now requires all countries who seek American military assistance sign an agreement assuring us they will not hand over our soldiers to the ICC; and, since its enactment, more than 90 countries have signed such an agreement. The ASPA has proven to be a valuable tool in the war on terror, and the Nethercutt amendment takes that leverage to the next step, making American economic support contingent on a promise not to turn over our troops to the ICC. The Nethercutt amendment will forestall any attempt by a foreign country that receives American economic aid to arrest and extradite American soldiers to Kofi Annan’s kangaroo court. Now, let us be real clear: The ICC presents a clear and present danger to the war on terror and Americans who are fighting it all over the world. The United Nations just last month refused to extend protection from the ICC to American troops abroad. This was at once an ominous sign of things to come and an urgent call for Congress to do its duty and protect our men and women in uniform. That is exactly what this vote is. If you want to go home to your constituents and tell them that you think that their tax dollars should go to foreign countries who allow American soldiers to be imprisoned and shipped off to Brussels without their constitutional rights, then, by all means, vote no on the Nethercutt amendment. If, however, you think American troops should retain their human and constitutional rights even when they step on foreign soil and if you think American economic support should only go to countries who guarantee such protection for our soldiers, then stand with the American people, the President and the men and women winning the war on terror and vote yes ….

    (End of extract)

  • Nuremberg Prosecutor’s Words

    Revised remarks of Benjamin B. Ferencz, a former Nuremberg Prosecutor as delivered at the swearing-in ceremony in the Hague of Luis Moreno Ocampo as Chief Prosecutor of the new International Criminal Court, June 16, 2003.

    Thank you all for the honor of being allowed to share a few thoughts with such a distinguished audience. I wish I could pay tribute to each one of you who have worked so hard to bring this event about. We are assembled here to advance a noble goal.

    Almost 400 years ago, a young Dutchman, who became known to the world as Hugo Grotius, was imprisoned for daring to advocate that all human beings had a moral right to live in peace under rules of binding international law. These principles became the guiding lights for the International Criminal Tribunals at Nuremberg that I had the privilege of serving over 50 years ago.

    Today, a Chief Prosecutor for another International Criminal Court – the ICC – is being sworn into office. The world is fortunate to have found an outstanding human rights advocate, Luis Moreno Ocampo, to accept the heavy responsibilities that have unanimously been entrusted to him.

    He does not have, as we did at Nuremberg, the power of mighty armies to support him. Nor will he have available the masses of incriminating evidence seized by victorious powers. On his shoulders will rest the difficult burdens of proving guilty knowledge and criminal intent of the accused. He must persuade judges coming from different legal disciplines. Finances will be limited and cooperation from national governments may be hesitant. He will. have to proceed cautiously and skillfully And all the world will be watching.

    Nuremberg was little more than a beginning. Its progress was paralyzed by cold-war antagonisms. Clear laws, courts and a system of effective enforcement are vital prerequisites for every orderly society. The matrix for a rational world system has countless parts that are gradually and painfully being pressed into place. The ICC is part of this evolutionary process. It is a new institution created to bring a greater sense of justice to innocent victims of massive crimes who seek to live in peace and human dignity. That’s what the ICC is all about.

    It is understandable that not all sovereign states have yet accepted this new creation. They seem to prefer the law of force rather than the force of law. Their concerns are unjustified. There is no way to defend militarily against individuals who are ready to kill or be killed for what they perceive to be a struggle against injustice. A fair prosecutor and a wise court to determine what is permissible or impermissible is now available as a legal response to crimes against humanity. It is time to give law a chance.

    I speak to you today in a purely personal capacity as one who served in the army of the United States during World War II and witnessed all of its horrors first hand. Another Nuremberg Prosecutor, Whitney Harris, is here with us today. I would never denigrate brave young people who risk their lives to serve their country or do anything to subject them to the risk of unfair prosecutions.

    Those who scoff at the efforts and aspirations are entitled to have their views considered — on the merits. I am convinced that this court and this Prosecutor will prove that their apprehensions are unjustified. In time, the world will come to support this court.

    The United States took the lead in creating the International Criminal Tribunal at Nuremberg. A distinguished Supreme Court Justice, Robert Jackson, was given leave to serve as Chief Prosecutor for the United States. Jackson’s’ words still ring in my ears: “That four great nations, stung with injury, stay the hand of vengeance and subject their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason.”

    The next dozen trials at Nuremberg, conducted by the United States, made unmistakably clear that law must apply equally to everyone. At Nuremberg we spoke in the name of the American people and as representatives of the US government. The dream of a more peaceful world under law, that inspired the world at Nuremberg, will never die.

    I recall an inscription over a portal at the Harvard Law library. It quotes a distinguished conservative statesman, Elihu Root, a former US Secretary of State and Secretary of War who was the founder of the American Society of International Law: “Make us effective,” he said, ” for the cause of peace and justice and liberty in the world.” For me, that is the unforgettable voice of America.

    I am confident that the time will come, in the not too distant future, when compassion, tolerance, understanding and a more effective rule of law will govern relations among nations and peoples. Today we have moved closer to that goal. I salute you all for your dedication, determination and accomplishment and to wish you well as you continue to advance toward a more humane and peaceful world.

  • Stop the US Foul Play

    Perverse as it may seem, we should be grateful to the Bush administration for its recent clumsy efforts to undermine the International Criminal Court just as it came into existence on July 1. The administration’s maladroit use of the United Nations Security Council to alter the terms of the Treaty of Rome, the founding document of the Court, should be a wake-up call for all those committed to building an international system based on a rule of law and all who care about maintaining the United Nations as a credible organization.

    First, any illusion that the present U.S. administration might have a smidgeon of respect for international treaties or multilateral co-operation should be finally dispelled. The disdain of the Americans is palpable; they’ll resort to crude means to wreck any form of international architecture with which they disagree.

    The argument they made in demanding immunity from the ICC — that this was simply a way of protecting their peacekeepers — was a false one, and they know it. As Paul Heinbecker, Canada’s permanent representative to the UN, pointed out, the United States has all the safeguards it needs — particularly the fact that the ICC is a jurisdiction of last resort.

    This means that if any crime were committed by an American, be it by a soldier stationed in Bosnia or by the Secretary of Defence in Washington, then the U.S. justice system — civilian courts or military tribunals — would be entitled to prosecute the case. The ICC only comes into play when a nation state is unwilling or incapable of exercising legal action against an act of genocide or a crime against humanity, as defined in the treaty.

    Unfortunately, this refutation of the Americans’ oft-stated objection never got the attention it deserved; too often, the media bought the false notion that this was a jurisdictional dispute. The antagonism of Washington’s current rulers toward the ICC, and their reason for disavowing the Clinton administration’s signature on the Rome Treaty, is that they do not want to be restrained by any limitation on their actions, including compliance with international criminal law.

    What’s particularly shocking about this attitude is that it flies in the face of all President George W. Bush’s aims as set out in his campaign against terrorism. We hear constantly that this is a great battle between forces of good and evil, of justice versus injustice. Yet rather than embrace a genuine, broadly supported effort to construct a global system of legal co-operation in investigating, capturing, prosecuting and incarcerating international criminals including terrorists, the Bush administration set out to emasculate such an institution.

    That was bad enough. But the Americans compounded the damage inflicted on the international multilateral system by their tactic of holding hostage the renewal of a peacekeeping mission in the Balkans and subverting the role of the Security Council. The so-called compromise arrived at by backroom deals among the permanent five members of the council is frankly a cave-in to U.S. demands.

    And it sets two very dangerous precedents. First is the use of blackmail on peacekeeping to achieve the purely self-interested objective of one of the council’s permanent members. Second, the compromise acquiesces to the Security Council’s questionable right to amend by interpretation a treaty arrived at in open discussion by representatives of more than 100 nation states in a founding convention. The compromise, giving a 12-month hoist to any application of treaty provisions, abrogates the original intent of the drafters. It does not protect the integrity of the Rome Statute, as claimed.

    Fortunately, that position is not going unchallenged. Our ambassador at the UN, supported by the Minister of Foreign Affairs and the Prime Minister, has led the fight to preserve the validity of the court. Mr. Heinbecker was able to obtain an open debate at the council and used that to expose U.S. myths and mobilize opposition to the original and more blatant initiative to achieve blanket immunity. It was Canadian diplomacy at its best.

    And it must be continued by our seeking to invoke the engagement of the UN General Assembly on this vital matter. The permanent five members have sought by a sneaky procedural device in the wording of the compromise resolution to keep the assembly out of the picture. But this position is not impregnable; it’s imperative that the assembly be seized of both the inherent threat to future peacekeeping missions and the erosion of the ICC that the council decision entails.

    In fact, there’s now an opportunity to institute even further reform. The time has come to begin working toward the democratization of the Security Council by insisting that all members be elected. The UN cannot be credible when its decisions are so dominated by a small, unaccountable elite of states that do not represent the full interests of the world — especially when the Security Council’s permanent members use their privileged position to eviscerate the Charter of the United Nations.

    While that monumental task is under way the role of the General Assembly needs to be asserted and enhanced.

    A good place to start is by building a capacity for peacekeeping that doesn’t rely on the Americans. One irony of their indignant stand against the ICC having jurisdiction over peacekeepers is that, of the 45,000 peacekeepers serving in UN missions, only 745 are supplied by the United States. Where the Americans do have an edge is in transport, logistics and intelligence-gathering. Canada should co-operate with the Europeans to develop those capacities, so that the next time the Americans want to play hardball, the rest of the world can tell them to take their ball and go home.

    The International Criminal Court needs careful stewardship, attention, resources and support during this critical start-up period. We know it faces an implacable foe in the present U.S. administration. This is all the more reason to redouble efforts to assure its effective launch and to continue campaigning to bring more members on board.

    Establishing the first new international institution of this new century dedicated to protecting people against violation of their basic rights is a remarkable achievement in the progress of humankind. Canada has played an important role from the time of the ICC’s inception. We were there last week to defend it against unwarranted attack. We now have the continuing task of helping to give it a firm foundation. Thank goodness for the wake-up call.
    *Lloyd Axworthy, Canada’s foreign affairs minister from 1996 to 2000, is director and CEO of the Liu Centre for the Study of Global Issues at the University of British Columbia.

    THE GLOBE AND MAIL
    Wednesday, July 17, 2002 – Print Edition, Page A13

  • Law vs. Force

    Law vs. Force

    An important marker of civilization has always been the ascendancy of law over the unbridled use of force. At the outset of the 21st century, we are faced with a pervasive dilemma. Reliance on force given the power of our destructive technologies could destroy civilization as we know it.

    The trials at Nuremberg and Tokyo following World War II were an attempt to elevate the force of law over the law of force. The newly created International Criminal Court, which will bring the Principles of Nuremberg into the 21st century, is supported by all major US allies. Unfortunately US leaders are opposing the Court and seem to fear being held to the same level of accountability as they would demand for other leaders.

    Of course, law does not prevent all crime. It simply sets normative standards and provides that those who violate these standards will be punished. In the case of the most heinous crimes, the remedies of law are inadequate. But even inadequate remedies of law are superior to the unbridled use of force that compounds the injury by inflicting death and suffering against other innocent people. Perpetrators of crime must be brought before the bar of justice, but there must also be safeguards that protect the innocent from being made victims of generalized retribution.

    When an individual commits a crime, there should be clear liability. When a state commits a crime, however, who is to be held to account? According to the Principles of Nuremberg that were applied to the Axis leaders after World War II, it should be the responsible parties, whether or not they were acting in the service of the state. At Nuremberg, it was determined that sovereignty has its limits, and that leaders of states who committed serious crimes under international law would be held to account before the law. These crimes included crimes against peace, crimes against humanity and war crimes.

    Without the international norms that are established by law, the danger exists of reverting to international anarchy, in which each country seeks its own justice by its own means. Only established legal norms, upheld by the international community and supported by the most powerful nations, can prevent such chaos and the ultimate resort to war to settle disputes. International legal norms are essential in a world in which violence can have even more fearful results than were first experienced at Hiroshima and Nagasaki.

    International law is needed if we are to abolish war before war abolishes us. We cannot have it both ways. If we choose law, the nations of the world must join together in a common effort to support and enforce the law. Albert Einstein, the great 20th century scientist and humanitarian, wrote, “Anybody who really wants to abolish war must resolutely declare himself in favor of his own country’s resigning a portion of its sovereignty in favor of international institutions: he must be ready to make his own country amenable, in case of a dispute, to the award of an international court. He must in the most uncompromising fashion support disarmament all around….”

    In recent years, the United States has pulled away from international law by disavowing treaties, particularly in the area of disarmament, and by withdrawing its support from the International Criminal Court. Without US leadership in support of international law, force rather than law will gain strength as the international norm. Relying on force may be tempting to the most powerful country on the planet, but it portends disaster, not least for the United States itself.
    *David Krieger is president of the Nuclear Age Peace Foundation.

     

  • A New Court to Uphold International Criminal Law: The World Moves Forward without the United States

    A New Court to Uphold International Criminal Law: The World Moves Forward without the United States

    Since the devastating carnage of World War II, a war that left some 50 million people dead, far-sighted individuals have worked for a world in which the force of law will prevail over the law of force. The first step toward realizing this vision was the establishment of the Nuremberg Tribunals to hold leaders of the Axis powers to account for crimes committed under international law. This unprecedented step on the part of the Allied powers was led by the United States.

    The American Supreme Court Justice, Robert Jackson, who became the US chief prosecutor at Nuremberg, argued in his opening statement: “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.”

    Following the trials, the United Nations General Assembly adopted the Principles of Nuremberg, principles of individual accountability that were meant to serve as a standard and a warning to potential violators of international law, no matter how high their position. The first principle stated: “Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”

    Principle two clarified that the perpetrator of a crime under international law was not exempted from responsibility by the fact that the crime was not subject to penalty under the internal law of his or her nation. The third principle made clear that even Heads of State and responsible government officials were to be held accountable for acts constituting crimes under international law. The fourth principle provided that superior orders were not a defense to the commission of crimes under international law.

    Principle five allowed that anyone charged with a crime under international law was entitled to a fair trial. The sixth principle set forth the following punishable crimes under international law: crimes against peace, war crimes and crimes against humanity. The seventh and final principle made complicity in any of these crimes itself a crime under international law.

    Despite the success of the Nuremberg trials and those held in Tokyo, as well as the adoption of the Nuremberg Principles, for more than forty years the idea of creating a permanent International Criminal Court languished. Then in 1989, the leader of the small island nation of Trinidad and Tobago, Arthur N. R. Robinson, put the issue back on the United Nations agenda.

    In the 1990s the idea of creating the Court gathered momentum at the United Nations. Ad Hoc Tribunals were established for the crimes committed in the former Yugoslavia and in Rwanda. And in 1998 delegates from the nations of the world met in Rome and agreed upon a statute for an International Criminal Court. It was agreed in Rome that when 60 nations had ratified the treaty establishing the Court, it would come into existence.

    In April 2002, far sooner than was predicted, the treaty surpassed the needed 60 ratifications, and is now set to enter into force on July 1, 2002. This is a great milestone for the world. The Principles of Nuremberg can now be made applicable to crimes committed in the Nuclear Age, and no longer will leaders of nations be able to hide from accountability for the most heinous of crimes under international law.

    Somehow, though, between the Nuremberg Trials and the twenty-first century, the United States has gone from being the strongest advocate of individual accountability under international law to an opponent of the Court. President Clinton signed the treaty establishing the Court on December 31, 2000, just weeks before leaving office. The Bush administration, however, has spoken out against the Court, has informed the United Nations that it is nullifying its signature on the treaty, and has indicated that it does not intend to support the Court. Richard Prosper, the US ambassador at large for war crimes issues, stated, “If the prosecutor of the ICC seeks to build a case against an individual, the prosecutor should build the case on his or her own effort and not be dependent or reliant upon US information or cooperation.”

    When it comes to international law, the US appears to practice a double standard. It doesn’t seem to want the same standards of international criminal law to apply to its citizens as are applied to the citizens of the rest of the countries in the world. Fortunately, the world is moving forward with or without the US. Among the US friends and allies that have already ratified the treaty establishing the Court are Austria, Belgium, Canada, France, Germany, Italy, Norway, Spain, Sweden and the UK.

    Hans Correll, the UN undersecretary for legal affairs, remarked, “A page in the history of humanity is being turned.” It is shameful that the United States, once passionate about international justice, will not be on this new page of international justice that gives renewed life to the Nuremberg Principles.
    *David Krieger is president of the Nuclear Age Peace Foundation.

  • 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.