Nuclear Age Peace Foundation

Tag: ICC

  • 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.

  • Hope For Humanity’s Future

    George Santayana, said “Progress, far from consisting of change, depends on retentiveness. Those who cannot remember the past are condemned to repeat it.”

    These are wise words which would well enter our minds as we reflect on the coming dawn of the 21st century. What is the greatest lesson of the 20th century? It is not man’s inhumanity to man. This has been a characteristic of human nature since time began. Man has also had rationality and this has characterized men’s relationship with one another since the dawn of history. This quality distinguishes civilization from the animal kingdom.

    It is this quality that has given rise to laws and negotiations for peace instead of war. It is this characteristic of rationality that leads men to establish institutions and organizations for human development. It also has led to the development of science and enormous strides in technology. Science and technology can be used for the progress and advancement of civilization or for the destruction of all on the planet. Rationality thus gives rise to the power to choose and it is this use of choice which is the fundamental issue which faces us in the 21st century catastrophe on a vast scale, as in the First and Second World Wars, or to employ it with all its enormous potential for peace, growth, development and human welfare on a scale never achieved or envisaged.

    To achieve this latter alternative, however, rationality must be employed on a scale as never before, giving rise to world order, to world peace based on law and justice worldwide. Co-ordination and mobilization of the efforts of all men and institutions is a necessary pre-requisite towards this end.

    Power must be humanized and subjected to laws. Human rights must be universalized and their grossest violations penalized. Impunity for such violations must no longer be the natural order of things but be relegated to the past. Efforts must b e intensified to put in place an international criminal jurisdiction so that perpetrators of atrocities against humanity, such as this century has witnessed, may be brought to account. On July 17, 1998, in Rome, one hundred and twenty nations took a significant step towards creating such a jurisdiction when they adopted a Statute for the International Criminal Court. We, the peoples of the 20th century, can make a lasting contribution to peace and security in the twenty first century and beyond by making this international system of justice a reality.

    Our very humanity must reassert itself with rights, principles, laws and institutions directed towards the enlightenment and advance of humankind of every creed and race in every region of the world.

  • The Nuremberg Promise and the International Criminal Court

    The Nuremberg Promise was the hope that someday there would be standards and effective mechanisms to hold all individuals accountable for acts constituting the most serious crimes under international law. At Nuremberg, justice was imperfectly done. The victors applied standards of accountability to the leaders of the defeated nations that they refused to apply to themselves. Nonetheless, Nuremberg established standards of accountability that were applied to Nazi leaders for crimes of unimaginable magnitude. The promise of Nuremberg was that these standards would become applicable to all leaders of all countries, and would be applied fairly by a strengthened international community. The manifestation of the Nuremberg Promise was imagined to be a permanent International Criminal Court (ICC) capable of upholding and enforcing these standards.

    For nearly fifty years after the Nuremberg Trials, progress on creating an International Criminal Court was virtually non-existent. The international community was bogged down in the rivalries of the Cold War and its proxy wars. With the end of the Cold War, however, the climate changed, and proposals for creating an International Criminal Court were suddenly back on the international agenda. It was the small island nation of Trinidad and Tobago that actually brought the need for establishing the Court back to the United Nations General Assembly Legal Committee out of their concern for bringing international narcotics criminals to justice. And then, in the early to mid-1990s, a major breakthrough was achieved in setting up temporary International Criminal Tribunals for the former Yugoslavia and for Rwanda.

    With extraordinary leadership from Abdul Koroma of Sierra Leone, the United Nations General Assembly Legal Committee began drafting a statute for a permanent International Criminal Court. To the surprise of many analysts, the work at the United Nations on a permanent ICC actually culminated in a Conference of Plenipotentiaries in Rome during the summer of 1998, and from this conference came the Rome Statute on an International Criminal Court.

    For a number of years high-level representatives of the United States appeared eager to create a permanent ICC. This was not surprising since the United States was one of the major proponents of the Nuremberg Trials. As the Rome Conference grew closer, however, the United States grew more reluctant to commit itself to the creation of the ICC. Its price for participating in the Court was the assuredness that no U.S. military personnel would be held to account by the Court for the commission of war crimes. When the United States failed to get its way on this point, it ended up joining only a handful of countries, including China, Iraq and Libya, in opposing the creation of the Court.

    Was the U.S. position reasonable? Of course not. The U.S. was pushing for a double standard — one rule of law for itself, and another set of rules for everyone else. The international community, including most of the U.S.’s closest allies, joined the vast majority of states in voting to establish the Court. As has happened in many others areas of international law, including recently and prominently the Landmines Treaty, the U.S. chose not to join the treaty if it could not dictate its terms.

    At Nuremberg there were three classes of crimes: crimes against peace, war crimes, and crimes against humanity. The Rome Statute lists four classes of crimes in Article 5: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. One of the biggest problems with the Rome Statute is that it allows parties to the treaty to opt out of being subject to the Court’s jurisdiction for war crimes for a period of seven years. Thus, once the Rome Statute enters into force, states will have seven years to decide whether or not to accept the jurisdiction of the Court for war crimes. This could potentially allow individual leaders to escape the Court’s jurisdiction for war crimes by opting out of the war crimes provision.

    The Rome Statute has also not defined the crime of aggression, which at Nuremberg was referred to as a crime against peace, and the Court will not have jurisdiction over such crimes until a definition is agreed to by the international community. One cannot help recall the twenty-year struggle at the United Nations to come up with an agreed upon definition of aggression. Apparently this definition does not have wide enough support for purposes of including it in the Rome Statute, in part because it lacks sufficient precision for use in a criminal statute.

    The Rome Statute provides in Article 13 that the Court may take jurisdiction over cases by referral of a State Party, by referral of the Security Council, or by initiation of the Prosecutor. However, Article 12 of the Statute provides that the Court can take jurisdiction over cases initiated by either a State Party or by the Prosecutor only if the State where the alleged conduct occurred or the State of which the accused person is a national are Parties to the Statute or have accepted the jurisdiction of the Court. This means that when an accused leader commits crimes against his own people, as Pol Pot or Saddam Hussein have done, the Court can only take jurisdiction if the State is a Party to the Statute, has accepted the Court’s jurisdiction or if the Security Council refers the case to the Court. These loopholes create a potential shield of impunity for criminal leaders whose States would be unlikely to become Parties to the treaty or do not otherwise accept the Court’s jurisdiction.

    The delegates to the Rome Conference also considered providing jurisdiction to the Court if the State that had custody of a suspected criminal had ratified the treaty. This would have allowed a country like the UK to have turned over to the Court a suspected violator of crimes against humanity and war crimes, such as a future Augusto Pinochet, if the UK was a party to the treaty and had custody of the suspected criminal. However, since the Rome Statute fails to provide for this, a suspect apprehended in the UK or any other country Party to the Statute would not be able to turn him or her over to the Court unless the State where the acts occurred or the State of nationality of the accused had ratified the treaty. The future Pinochet, assuming his crimes took place in a State that had not ratified the Statute, could not be turned over to the Court by the UK or any other country that apprehended the suspect.

    It should be noted that the Rome Statute provides in Article 24 that “No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.” This provision would preclude the Court’s jurisdiction over Pinochet, Idi Amin, Saddam Hussein, and Henry Kissinger for all criminal acts committed before the Statute enters into force.

    Will the Court fulfill the Nuremberg Promise? The Court’s limitations, brought about by compromise and fear on the part of States, will prevent it from completely doing so. On the other hand, the very existence of the ICC will be a step forward. Each time that someone is brought to account for crimes under the Court’s jurisdiction, it will strengthen the international norms against committing such crimes.

    The most important function of the Court, however, is not to punish, but to prevent such crimes. And it is only by knowing with some certainty that the commission of the statutory crimes will result in punishment that the crimes will be prevented. So long as the jurisdiction of the Court is not universal, aggression is not defined, and States can opt out of the war crimes provisions, there will still be a broad shield of immunity for international criminals to hide behind.

    The decisions made recently in the UK to arrest Augusto Pinochet come closer to fulfilling the Nuremberg Promise than the Rome Statute of the ICC. The arrest and potential extradition of Pinochet for crimes against humanity sends a strong message to all potential violators of international law. The human rights activist and Nobel Peace Laureate, Jose Ramos Horta, has called the arrest and potential extradition of Pinochet the most important event in human rights since the adoption of the Universal Declaration of Human Rights fifty years ago.

    The Nuremberg Promise was the promise of courage in holding to account the greatest of the world’s criminals. Nuremberg stood for individual accountability and the tearing down of the shield of State protection for criminal leaders. At Nuremberg it did not matter whether the acts committed were legal under the law of the state where they were committed. It only mattered that the acts were illegal under international law. It did not matter that the accused person was a state official at the time of commission of the crimes. It did not matter that the accused was a Head of State or Head of Government. It did not matter that the person was only following orders. It only mattered that the person violated international criminal law. Nuremberg was about doing justice in the hope that the application of individual accountability would prevent future crimes of such magnitude.

    The Statute of the ICC will strengthen the place of the individual in international law. The Statute provides in Article 26 for jurisdiction “over natural persons,” and dictates that “[a] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment….” These terms of reference are important in providing for individual responsibility for violations of international law. The Statute further provides in Article 27 that it shall “apply equally to all persons without any distinction based on official capacity.” This Article goes on to state, “In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.” These Articles will bring into international statutory law the most central of the Nuremberg Principles, and thus solidify the responsibility as well as accountability of the individual under international law.

    Among other notable features of the Rome Statute is the provision that none of the crimes within the jurisdiction of the ICC shall be subject to any statute of limitations. Thus, an individual who commits any of the crimes under the Statute will be subject to arrest and trial for as long as he or she lives.

    In some respects the most important words in the Rome Statute are found in the Preamble which raises a cry for “an end to impunity” and states that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” The Preamble further states that the Court is established “to guarantee respect for the enforcement of international justice.”

    The Rome Statute itself does not quite match up to the lofty ideals expressed in its Preamble. But it does provide standards for States to live up to in their own enforcement of international law. Perhaps the Rome Statute has already begun to play a role in the life of the international community, even before its entry into force, by providing a beacon that was followed by the judges in Spain who asked for the extradition of Pinochet and those in the UK who appear poised to grant that extradition.