Nuclear Age Peace Foundation

Tag: International Criminal Court

  • 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.

  • Address on the International Criminal Court Delivered by His Excellency Arthur N.R. Robinson, President of Trinidad and Tobago

    At a Nuclear Age Peace Foundation Symposium entitled International Law and the Quest for Security held at the University of California at Santa Barbara

    Thank you, Dr. Krieger, for this exposition on the basis on which the International Criminal Court came into being. You had, I understand, a very enlightening discussion on aspects of International Law, International Criminal Law specifically, this morning and that, together with what Dr Krieger has said, will form a very informative, useful background against which I will speak.

    I will deal more with the historical aspect of the attempts at unified action by the International Community to establish rules of behavior and in saying so, I recall the words of a notorious Nazi criminal. He was Hitler’s most gifted technician who did more than anyone else to assist Hitler in his ravages and destruction of different parts of Europe and other parts of the world. He was caught along with others, both military and business (people). He was tried by the Tribunal of Nuremberg, as it has come to be known, convicted and sentenced to twenty years imprisonment in Spandau. It was after his conviction, when reality dawned upon him, Albert Speer bared his soul to the tribunal and said, among other things, that “It is necessary that rules must be devised whereby mankind can learn to live with one another because, with the advances that would take place in science and technology, a new war of this kind will result in the destruction of civilization.”

    And that is what, fundamentally, an International Criminal Court is about: the creation of rules by the International Community, establishing standards of behaviour where anyone will be held accountable for violation of such standards where the most egregious offences are involved.

    With the tremendous advances that Albert Speer foresaw in science and technology, it is clear that what is before us now, and I speak particularly to the youth in this audience, what is evolving before our very eyes and in our very presence, is a new civilization which science and technology have developed around us, the beginnings of a new civilization in which we humans are involved whether we like it or not.

    How are we going to make use of this tremendous advance in science and technology is a matter not so much for the scientists like Albert Speer, it is a matter for all of us. For the consequences of abuse of this new power that is being placed in the hands of some would have enormous results for all. So what touches all, as was said decades ago in a different context, must be approved by all. And this is how you are brought into the picture to be involved in the decision: shall we establish rules which will apply to all, rich and poor, high and low, powerful and powerless? Shall we establish rules whereby we all can abide and learn to live with one another? Or shall we allow this enormous power that is being placed in the hands of some by science and technology to run away and act in accordance with its own rules?

    I give an illustration of centuries ago: A country in the region of Alsace in Europe where a ruler by the name of Peter Von Hagen Bach got out of control and he wreaked havoc among the villagers of the region of Alsace and there were no rules and there was no established power to bring him to account. So what did they do? They made use of their numbers. That was the power that they had, numbers. They gathered together in their numbers from everywhere they could collect. They captured him. They brought him to the market place, and they executed him. After that, there were efforts towards creating such rules of behaviour. There were the Geneva Conventions of 1864 and 1865. And then, after the First World War, the victims of the war got together. There was a proposal to establish a permanent court to try Kaiser Wilhelm. That proposal, however, was rejected in favor of an ad hoc tribunal. But before the tribunal could be established, Kaiser Wilhelm escaped to a neutral country, The Netherlands. In those days you could not take action against countries. You could not bring a country to court for harboring a man who had committed the most egregious crimes against humanity. And if you managed to bring the country to court and convicted the country, you could not send the country to jail. And so the people were powerless because countries stood in the way to defend their sovereignty.

    So it was necessary to establish rules and this was done for the first time in the Tribunal of Nuremberg where one of the principles established was: Since it is individuals who commit crimes, however powerful they may be—they may be kings, they may be presidents, they may be generals, they may be field marshals—they are individuals. Therefore you do not hold their countries to account, you hold them to account.

    Individuals must be brought to account. And there must be no impunity. No one must escape. So, even if they belong to a distant country, they can still be tried, if necessary, in absentia and convicted and sentence imposed and countries may be required to impose those sentences. Wherever those individuals went they would be subject to the charges and the sentences that were imposed. So they could be forever in search of a home because wherever they went, they would be subject to the sentence of the court and imprisoned.

    That is the importance of a permanent Court. One of the great principles that would apply in the case of a permanent Court is that it is no respecter of persons. Whoever you may be, you may be President, you may be Secretary for Foreign Affairs, you may be Secretary of Defence, you may be Commander in Chief, you will still be subject to trial and sentencing. So humans wherever you may be would then be able to have a sense of security that if anyone, however powerful that person may be, invades your security or destroys your humanity or commits any of these crimes against humanity, any of these egregious crimes, the permanent Court is there for the purpose of trial, conviction and sentencing.

    Nuremberg however, was a tribunal, an ad hoc tribunal formed by the victors of the First World War to try the vanquished, and there were many persons who felt it should have been a permanent court. I was a student at that time in the University of Oxford, engaging in debates in the Students’ Union and in one debate on the United Nations, the actual subject of the debate was “The United Nations has failed”, because it was clear that the United Nations had really no power to do anything to anyone; had no power of implementation of action, sentencing and imprisonment of persons.

    And in that debate also was another young man and he was from the Boston area- the University of Boston. He had a Doctorate in History and International Law and was reading for another Doctorate in International Law. His subject was the Nuremberg Trials in International Law. We had extensive discussions and after that debate, we were both recognized as the two best debaters in the debate and became very friendly after that. We had numerous discussions on International Affairs and felt that the way forward, at a time subsequent to the Second World War, when there were doubts about the future of the world, having regard to the experiences of the Nazis, (we were discussing in what direction the world should go, as young people and I hope that young people are engaging in these discussions these days) – we came to the conclusion that we should seek to establish that the world should go in the direction of universal human rights. And since there were no established institutions for the enforcement of those rights, we felt that in the most serious cases, an institution should be developed that has enforcement powers and therefore Nuremberg was the way to go.

    But Nuremberg was ad hoc; it was for the specific purpose and when it was done, it was finished. But what we felt was that there should be a permanent court, a court establishing that everybody should know it is there and if these crimes are committed they could be brought to account to that court and that would be a means of bringing some influence on persons in refraining, some deterrent influence, on persons against the commission of those crimes.

    If, for example, we had such a permanent court they would not have had to establish a tribunal in Bosnia Herzegovina, in Rwanda, and so on and maybe those crimes not have been committed because the persons who are now before those tribunals would have known that they could be brought to account for the commission of those crimes and the people around them would have known that those persons could be brought to account. So this could be a tremendous deterrent – if one is to have a permanent court, rather than have to resort to tribunals – to doing something after the act has been done rather than having provision so that action could be taken.

    Everyone should know that action could be taken. This would be a tremendous deterrent influence. And since the rules would apply to all, there would be no impunity for persons who feel, because of their positions or some special situation that; they could commit crimes and escape. So this is the position that is placed before us in building this new civilization. Whether we like it or not, the civilization is being built for us.

    Look at the tremendous developments taking place in communications. As I speak, I could be heard in Japan or in China on in India or in any of these places, even as I speak. That is the importance of the communications revolution where every individual could use the internet and express his opinion and that opinion could be known throughout the world. An individual is no longer isolated, which is a tremendous revolution that has developed around us and the question is, shall we or shall we not establish rules for the most egregious offences, for the worst forms of behaviour, that they could be dealt with in a manner provided for in law and according to justice, that is to say, all rules of justice should prevail. They should be heard, they should have the opportunity to be heard, to put up their defence against charges against them. For example, they should be tried, and tried in accordance with the principles of a court of law and no harsh penalties be imposed because of the conviction if they are guilty. They would have to be proven guilty in a court of law where all the principles in the civilized world that apply will be applied and no one would have punishments imposed because of his or her political conviction or because of their religious convictions.

    Those matters will not apply in an International Court. The Statute of the court makes that kind of provision. It gives protection. Whereas it provides for penalties which would apply in all cases, it also makes provision for protection of individuals so that they could not be subject to arbitrary rules and penalties according to the whims and fancies of those who possess the powers.

    So this innovation of a permanent court has been described as the second most important development in International Law since the United Nations Charter.

    It is true that I moved the motion in the United Nations in 1989, but as I said last night, there is a great deal of substance in the utterance of the most distinguished user of the English language, the most distinguished poet and playwright who made one of his characters say, “There is a divinity that shapes our ends rough hew them how we will.” And as I stand here, I can say there is a divinity that shaped my life. That is the only explanation for the fact that I stand here before you this afternoon and I speak. For it easily could have been otherwise; that I received the award that I received last night. For in the year 1990 there was a revolt in my country. I was the Prime Minister. A fanatical group of Muslims decided that they wanted to take over the government. They invaded the Parliament in which I sat and in which other members of Parliament, Ministers of Government were. They held us, they bound us. I was bound hand and foot and as I lay bleeding on the floor of the Parliament, they called on me to instruct the troops to withdraw from their assault and to lay down their arms, that is to say the Government troops, and tell them that the Government had fallen. And as they put the microphone to my mouth to carry out their instructions, I shouted in the microphone: “These are murderers and torturers. Attack with full force.” And this of course astonished my assailants. They were in shock; they withdrew; they pulled back. But one of them who was some distance away fired the gun. It caught me in the knee. I could have been lame for life. The doctor said half an inch in a different way and the main artery would have been severed and in minutes I would have gone. This was 1990. I made reference to the event last night and this morning, I awoke to hear my wife who is somewhat ill saying, “1990, 1990, 1990.” That is all she was saying.

    That reinforces what I said. How did I escape? There is a divinity that enabled those assailants, those villains to be caught and captured and tried. So when I stood in the United Nations and moved that motion, with all the background that I had and all the preparation, I was able to do it because I was then Prime Minister of Trinidad and Tobago. I had great assistance from some of the most experienced and learned experts in the world in the field of International Law, including Dr Woetzel himself.

    I moved the motion. I brought them together and had the motion prepared and I moved the motion. How different it could have been. I happened to be Prime Minister. I was in the place to do it—in the United Nations. I was in the position to do it. I was Prime Minister and I was able to incorporate the expertise and experience of the most learned in the world. I was able to do it and that is why I am regarded as the person who is the virtual author, the father, as it is put, of the International Criminal Court. It so easily could have been someone else, but nobody else was in the position to do it.

    So University students, I emphasise this in order to let you understand how history is made and unless historians delve into the factors that produced events, the events describing the events themselves are of little use. True knowledge has to be based on understanding and evaluation of events, surrounding events, events that have led to the conclusion that is arrived at. So one has to be careful with one’s history and with what historians say. And it is of extreme importance that one should understand the meaning of an International Criminal Court and the nature of the opposition that comes for the International Criminal Court. It is important to delve into the origin of that opposition, for unless one understands the basis of that opposition and the manner in which that opposition has evolved and the situation that has led to that opposition, one would not understand and one would not be prepared for the necessary campaign to deal with any campaign of opposition. And as the people of Alsace dealt with Peter Von Hagen Bach by a combination of numbers—their power came from numbers, they did not have the influence that he had, they brought together numbers—in the same way, dealing with any campaign against the International Criminal Court, a necessary campaign must be a mobilization of the numbers in the world. The numbers in the world must speak and you have the internet. You have the communications revolution now which makes every individual a potent actor.

    So I am happy to speak to you in this University of California in Santa Barbara. It is the first time I have had the opportunity to do so and it is an occasion I can assure you I shall never forget, for the attentiveness with which you have listened. An occasion where clearly there has been a response which I understand. For all these reasons, I shall never forget this occasion and I wish you progress and prosperity in your lives as students and hope that you will be a decisive influence in anything that involves the benefit of humanity and there is no doubt about it, the International Criminal Court is a matter for the benefit of all humanity.

    I thank you.

  • A Nuclear Age Peace Foundation Symposium on International Law and the Quest for Security

    As the future of the international legal order hangs in the balance in the United Nations Security Council, it is necessary for government officials, academics, activists and citizens to engage in constructive dialogue about the role that the global legal order is to play in global security. The Nuclear Age Peace Foundation sponsored a symposium entitled International Law & the Quest for Security enabling such timely discussion to take place at the University of California at Santa Barbara on October 25, 2002.

    The keynote speakers were Richard Falk, professor Emeritus of International Law and Practice at Princeton and Chair of the Nuclear Age Peace Foundation, his Excellency Arthur N.R. Robinson, President of Trinidad and Tobago, and John Burroughs, Executive director of the Lawyers Committee on Nuclear Policy. They were accompanied by a variety of panelists with varying backgrounds in international law. The resulting conversation was constructive and cutting edge as the participants proceeded to challenge one another’s assumptions about the future of the world legal order.

    Detoured or Derailed?

    Professor Falk set the tone for the first half of the symposium by expounding upon the crisis of security that the international community is currently suffering. He illustrated how US policies on Iraq challenge the very notion the territorial state and threaten to undermine the legitimacy of the United Nations Security Council. Falk ended his initial remarks by posing the question of whether Sept. 11 and the events that have ensued have derailed or simply detoured the post-Cold War progress in fortifying a global legal order.

    The four members of the panel that followed, monitored by Professor Peter Haslund, Director of International and Global Studies Program, Santa Barbara City College, approached the issues addressed by Falk from a variety of perspectives. Jackie Cabasso, Executive Director of Western States Legal Foundation and a nuclear weapons abolition activist, drove home the severity of the US military’s enthusiasm for nuclear weapons by quoting from various military documents and speeches. She also urged the audience to organize around a set of values that differ from this militaristic approach instead of focusing on particular issues or weapon systems.

    Cecelia Lynch, an associate professor of political science at UC Irvine, commented on historical trends of social movements and described the tensions between the environmental, peace, humanitarian, and anti-globalization movements today. Professor Lynch also emphasized the need to increase the responsibility of the state for welfare and to decrease the emphasis on militarism.

    Though many of those at the symposium concentrated on evaluating recent US policy, particularly its aggressive stance against Iraq, Professor Manou Eskandari, Chair of the Department of Political Science at Santa Barbara City College, pointed out that, “unilateralism is not just an American problem.” Eskandari also criticized the Security Council as being less than a truly a global forum, and called for democratization of the United Nations.

    Marc McGinns, a senate lecturer in Environmental Studies at the UC Santa Barbara, took an environmentally-based approach to the issues of human and global security. McGinns addressed the tensions between manmade international legal systems and the law of nature claiming that “we are making war against the earth” with our consumption habits. Highlighting the stark inequalities in world consumption, and its destabilizing effects on world security, McGinns put forth the questions, “What’s it to be? Justice or just us?”

    Debating the International Criminal Court

    In the afternoon session of the Symposium the discussion focused on the International Criminal Court (ICC), the statute of the Court having come into force this past July.

    His Excellency President Robinson, who was instrumental in getting the ICC back on the U.N. agenda in 1989, started off the afternoon by delivering a powerful speech delineating his personal involvement in the struggle to establish the ICC. Identifying the Court as a means of establishing standards of behavior he stated, “it is necessary that rules must be devised whereby humankind can live with one another because, with the advances that will take place in science and technology, a new world war of this kind will result in the destruction of humanity.”

    Dr. Burroughs began his talk on opposition to the ICC by pointing out the accuracy of Professor Eskandari’s position that there are other nations besides the US the establishment of the Court. Burroughs pointed out that China, India, Indonesia, Russia, and the United States—the five most populated countries in the world—have not ratified the ICC statute. He then went through the major objections to the court that Marc Grossman, US Under secretary of State, has outlined, displaying the pitfalls of each objection.

    Burroughs’ remarks were followed by an engaging discussion of the value of the ICC as a new element of international law. While panelists such as Judge Paul Egly supported the ICC as a “wonderful document,” Professor Lisa Hajjar, assistant professor of the Law and Society Program at UC Santa Barbara, challenged the ICC approach to international criminal law. Hajjar favored the use of universal jurisdiction in national courts, such as was used in the case against ex-Chilean dictator Augusto Pinochet. She described this approach as being a more decentralized and democratic and suggested that the establishment of the ICC could actually impede the pursuit of universal jurisdiction in national courts.

    In his remarks, Stan Roden, a practicing attorney from the local community, described how the ICC was consistent with the rights guaranteed in the US constitution. Professor Eskandari questioned this somewhat nation-centric approach asking if the ICC would be any less legitimate if it did not adhere to US constitutional rights.

    Dr. J. Kirk Boyd, a Visiting Professor at UC Santa Barbara, spoke mainly about the Bill of Rights Project, which is working to create an international composition of human rights, consolidating existing documents. Boyd described this project as part of an effort to prevent crimes such as those to be tried under the ICC, creating an international environment where such crimes would become less likely.

    As the symposium wound down, participants enthusiastically welcomed an unexpected appearance by Daniel Ellsburg, releasing the Pentagon Papers to the press during the Vietnam War. Ellsburg voiced his opinion that we are at much risk of nuclear weapons going off in the next weeks or months than we were during the Cold War, emphasizing the need for a long-term approach to weapons proliferation.

    The symposium was wrapped up with the conclusions of David Krieger, President of the Nuclear Age Peace Foundation and Richard Falk who synthesized the varying points made throughout day. Falk also left the audience with the hopeful idea of “politics as the art of the impossible,” reminding participants of the importance of continuing to engage in dialogue and action to promote peaceful solutions to conflicts in the face of extreme militarism.
    * Devon Chaffee is the Research and Advocacy Coordinator at the Nuclear Age Peace Foundation.

  • The President Has Gone Too Far

    The President Has Gone Too Far

    The president can no longer be considered simply a vacuous puppet brought to power by big business, a family name, and election fraud. He must now be viewed as a dangerous opponent of our constitutional form of government, international law and the international order that was born in the aftermath of World War II.

    The US withdrawal from the treaty establishing the International Criminal Court, announced by the Bush administration on May 6, 2002, has all the markings of a watershed event, an event that could make one weep for what it portends for the future of humanity and our country. The Bush administration is marching ahead in its assault on international law. Never before has a nation removed its sovereign signature from a treaty. Now it is done.

    In a one paragraph letter to the United Nations Secretary General, the US undersecretary of state for arms control, John Bolton wrote, “The United States does not intend to become a party to the treaty. Accordingly, the United states has no legal obligations from its signature on December 31, 2000.” In other words, our commitment means nothing. There is no reason for other sovereign states to rely upon the commitments of the United States. The administration has sent a clear signal that the US will decide which laws it will support and which it won’t and the rest of the world be damned.

    The Bush administration demonstrates little interest in supporting international law. It is also pulling out of the Anti-Ballistic Missile Treaty to pursue missile defenses and space weaponization. This is an administration of militarists and unilateralists. They talk about withdrawing from the International Criminal Court because they fear that US servicemen could be brought to justice under the provisions of the Court, but what they really fear is that US leaders will be held to the same set of standards that the Court will apply to all leaders throughout the world.

    In an article written in 1999, the same John Bolton pointed out that it was not American soldiers that would be in the most jeopardy, but rather “the president, the cabinet officers who comprise the National Security Council, and other senior civilian and military officers responsible for our defense and foreign policy.” But what would US leaders have to fear if they do not commit the most heinous of crimes under international law, crimes such as genocide, crimes against humanity and war crimes, the same crimes for which the Nazis were held accountable at Nuremberg?

    Since Bush has become president, the United States has increased its military budget by nearly $100 billion, from $300 billion to almost $400 billion. Military power is the administration’s answer to international law. Defense Secretary Rumsfeld talks in plain language about our efforts to kill whomever we deem as our enemy. We are breaking with our allies, who are committed to international law. The US has become a unilateralist superpower, a rogue superpower, a dangerous force for international anarchy.

    The House of Representatives has rubbed salt in the wound of our allies in the international community who support the Court by voting 264 to 152 in a sense of the Congress amendment to the Department of Defense Authorization Bill that no funding in the bill “should be used for any assistance to, or to cooperate with or to provide any support for, the International Criminal Court.” The House of Representatives, at the instigation of Tom DeLay, Also attached an amendment to the Supplemental Appropriations Bill that would prohibit US cooperation with the Court and would even authorize the US to invade Holland to free members of U.S. armed forces, civilians and allies held by the Court.

    Most of the Senate has remained silent on Bush’s decision to withdraw from the Court. Senator Christopher Dodd, whose father was a prosecutor at Nuremberg, referred to the president’s decision as “irresponsible, isolationist, and contrary to our vital national interests.” Senate Majority Leader Tom Daschle responded to Mr. Bush’s decision with these words of opposition: “This decision vastly decreases our ability to shape the ICC, ignores the fact that the ICC will come into existence regardless of whether we are involved or not, and raises the specter of unilateralism just as we will be turning to our allies for help in a series of crucial policy, diplomatic–and perhaps military–undertakings.”

    The United States, which has an unparalleled opportunity to lead the world in upholding human rights and achieving a just peace, has slipped precipitously from the aftermath of World War II when it led the world in bringing Nazi leaders to justice at the Nuremberg Trials. The US chief prosecutor at Nuremberg, Justice Robert Jackson, argued, “The law must also reach the men who seize great power and deliberately combine to make use of it to commit an evil which affects every home in the world. The last step in preventing the periodic outbreak of war, which is unavoidable with international lawlessness, is to make a statesman responsible before the law.”

    Bush’s policies promote international lawlessness and impunity under international law to leaders accused of grave crimes such as Osama bin Laden, General Augusto Pinochet, Idi Amin, Pol Pot and Henry Kissinger. The president’s policies encourage present and future leaders to believe that their crimes will also be blessed with impunity under the law. In the eyes of the world, including those of our closest allies, these policies underscore the US abdication of leadership in upholding international law and human rights.
    *David Krieger is president of the Nuclear Age Peace Foundation.

  • 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.

  • Nuremberg and Nuclear Weapons

    David KriegerThe principal message of the Nuremberg trials is that individuals are responsible for what they do, and will be held accountable for committing serious crimes under international law. At Nuremberg, these serious crimes included crimes against peace (that is, planning, preparing for, or participating in acts of aggressive warfare), war crimes, and crimes against humanity.

    One of the great ironies of history or perhaps it is not such a great irony is that the Charter establishing the International Military Tribunal at Nuremberg was signed on August 8, 1945. That was just three months after the German surrender. More importantly, it was just two days after the first nuclear weapon was used in warfare on the city of Hiroshima, and one day prior to a nuclear weapon being used on the city of Nagasaki. The nuclear weapon used on Hiroshima, with an equivalent force of some 15 kilotons of TNT, killed some 90,000 people immediately and some 140,000 by the end of 1945. The bomb dropped on Nagasaki, with an equivalent force of some 20 kilotons of TNT, killed some 40,000 people immediately and some 70,000 by the end of 1945.

    It has been pointed out that the number of people who died immediately from the use of each of these nuclear weapons was less than the number of people who died in Tokyo on the night of March 9-10, 1945 as a result of U.S. bombing raids. This number is estimated at approximately 100,000. The major difference between the Tokyo bombings and those of Hiroshima and Nagasaki is that the former took nearly a thousand sorties to accomplish, while the destruction of the latter two cities took only one bomb each.

    I think it is reasonable to speculate that if the Germans had had two or three atomic bombs, as we did at that time, and had used them on European cities prior to being defeated in the Second World War, we would have attempted to hold accountable those who created, authorized, and carried out these bombings. We would likely have considered the use of these weapons on cities by the Nazi leaders as among the most serious of their crimes.

    The irony of history, of course, is that the Germans did not develop nor use atomic weapons, and thus this issue never came before the International Military Tribunal at Nuremberg, or before any other international tribunal. The record of the past 50 years reflects the consequences of this lack of accountability, namely, the nuclear arms race pursued by the United States and the former Soviet Union, which lasted until the end of the Cold War in approximately 1990.

    The question which I want to address is not whether war crimes were committed at Hiroshima and Nagasaki. Under the rules of international humanitarian law they were, and they were also committed by the bombings of London, Coventry, Hamburg, Dresden and Tokyo. The primary targets of all these bombings were civilians, and the indiscriminate killing of civilians has always in modern times been understood to be a clear violation of the laws of war.

    Nuclear Weapons and International Law

    The more relevant question has to do with where we stand today. Not long ago, on July 8, 1996, the International Court of Justice in the Hague issued an opinion on the legality of the threat or use of nuclear weapons. Actually, two questions were placed before the Court for advisory opinions. The first question, posed by the World Health Organization in May 1993, asked: “In view of the health and environmental effects, would the use of nuclear weapons by a state in war or other armed conflict be a breach of its obligations under international law?”

    The second question, put to the Court by the General Assembly of the United Nations in December 1994, asked: “Is the threat or the use of nuclear weapons in any circumstances permitted under international law?”

    The International Court of Justice found that the question asked by the World Health Organization, as a legal question, fell outside the scope of activities of the organization, and thus declined to accept jurisdiction. On the question posed by the United Nations General Assembly, however, the Court did find jurisdiction, and issued an advisory opinion.

    In a multi-part answer to the question, the Court found the following: “…that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.

    “However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.”

    In reaching this opinion, the Court dramatically reduced the possible circumstances in which nuclear weapons could be threatened or used in conformity with international law. The Court left open only the slim possibility of legality under “an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” Even in this circumstance, the Court did not say that such use would be legal; it said only that it could not determine legality under these conditions. Judge Bedjaoui, the president of the Court, said in his declaration upon releasing the Court’s opinion, “I cannot insist strongly enough on the fact that the inability of the Court to go beyond the statement it made can in no way be interpreted as a partially-opened door through which it recognizes the legality of the threat or use of nuclear weapons.”

    Judge Bedjaoui went further to describe nuclear weapons as “blind weapons” that “destabilize, by their very nature, humanitarian law, the law of distinguishing in the use of weapons.” He continued, “Nuclear weapons, absolute evil, destabilize humanitarian law in so far as the law of the lesser evil. Thus, the very existence of nuclear weapons constitutes a great defiance (challenge) to humanitarian law itself…. Nuclear war and humanitarian law seem, consequently, two antithesis which radically exclude each other, the existence of one necessarily supposing the non-existence of the other.”

    Where does this leave us today? Although the opinion of the Court is an advisory opinion, it is the most authoritative statement of international law on this question, and must be taken seriously. Thus far, however, there have been no statements made by any of the declared or undeclared nuclear weapons states indicating that they plan any changes in their nuclear policies as a result of the Court’s opinion.

    Individual Accountability

    We know what the Principles of Nuremberg tell us about individual accountability. The primary principle is that “Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” The fact that there is no penalty for the act under internal law does not relieve the person who committed the act from responsibility under international law. Nor does the fact that the person acted as a Head of State or as a responsible government official relieve that person of responsibility. Nor does the fact that the person acted pursuant to superior orders, so long as a choice was in fact possible to him, relieve him of responsibility.

    It was the United States, along with the U.K., France, and Russia, that created the Nuremberg Principles after the Second World War by holding Nazi and other Axis leaders accountable for their crimes under international law. I submit that if we want to create a world community that lives under international law in the 21st Century, we must apply the Nuremberg Principles to one and all, equally and without prejudice. That means we must apply these Principles to ourselves as well as to others. If the threat or use of nuclear weapons is, in fact, illegal under international law in virtually every conceivable circumstance, then we must act accordingly and neither use nor threaten the use of these weapons. Instead, we must dismantle our nuclear arsenal subject to agreement with other nuclear weapons states. In the meantime, we must explain to all military personnel with responsibilities for nuclear weapons the criminality under international law attendant to the threat or use of these weapons.

    Military organizations must operate under the law, and that clearly includes the international law of armed conflict. If military organizations do not operate under the law, then are they any better than state-organized thugs? It was for violating the laws of war at My Lai that Lt. Calley was tried and convicted. Lt. Calley’s crimes, terrible though they were, would pale in comparison to the crime of again using nuclear weapons on cities filled with innocent people.

    The International Court of Justice added to their opinion a clarification of Article VI of the Non-Proliferation Treaty. The Court unanimously found that: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

    The Court has clearly indicated that the nuclear weapons states have an obligation to negotiate in good faith not only for nuclear disarmament, but for nuclear disarmament “in all its aspects” and to bring these negotiations to a conclusion. In the aftermath of the Cold War, we have been moving far too slowly to attain this goal. It is a necessary goal so that no other city will ever again have to face the consequences of what happened at Hiroshima and Nagasaki, and the future of humanity will not be jeopardized.

    The Need for a Permanent International Criminal Court

    Even if the threat or use of nuclear weapons is unlawful under international law, however, there currently exists no tribunal where persons committing such acts can be brought to account. One of the great shortcomings of the current international institutional structure is the lack of a permanent International Criminal Court. Two Ad Hoc Tribunals have been created by the United Nations Security Council one for the former Yugoslavia and one for Rwanda. The jurisdiction of both of these tribunals, however, is limited by time and space. It is perhaps ironic that while the effects of nuclear weapons are unlimited by either time or space, the jurisdiction of our international criminal tribunals is so limited.

    Were nuclear weapons to be used by accident or design, the consequences would be horrible beyond our deepest fears. Nazis and other war criminals were convicted and punished in part for bringing human beings to the incinerators of the Holocaust. Nuclear weapons may be conceived of as portable incinerators portable crematoria, if you will that bring incinerators to the people. In my view, the silence of the American, Russian, British, French, and Chinese people in the face of these potentially genocidal or omnicidal weapons is as disquieting as the silence of the Germans in the face of Nazi atrocities. Yet none of the people in countries possessing nuclear weapons today are facing the same fearful authoritarian rule that the Nazis imposed upon the Germans during World War II.

    For many, perhaps most, people in nuclear weapons states today, nuclear weapons are not perceived as a critical issue. They are largely ignored. However, if they were to be used again, I think future historians if there were any would be very critical of our lack of commitment to ridding the world of these terrible weapons.

    We have the opportunity, in fact the responsibility under the Nuremberg Principles, to speak out against these genocidal weapons, but for the most part we do not do so. We must break the silence that surrounds our reliance upon these weapons of mass destruction. A hopeful sign recently occurred at the State of the World Forum in San Francisco when General Lee Butler, a former commander of the U.S. Strategic Command, broke his personal silence and made a ringing plea to abolish nuclear weapons. “We can do better,” he said, “than condone a world in which nuclear weapons are enshrined as the ultimate arbiter of conflict. The price already paid is too dear, the risks run too great. The nuclear beast must be chained, its soul expunged, its lair laid waste. The task is daunting but we cannot shrink from it. The opportunity may not come again.”

    It is within our grasp to end the nuclear weapons era, and begin the 21st Century with a reaffirmation of the Nuremberg Principles.

    Steps That Need To Be Taken

    1. The following confidence building measures proposed by the Canberra Commission on the Elimination of Nuclear Weapons:
      • Taking nuclear forces off alert;
      • Removal of warheads from delivery vehicles;
      • Ending deployment of non-strategic nuclear weapons;
      • Initiating negotiations to further reduce United States and Russian nuclear arsenals; and
      • Agreement amongst the nuclear weapons states of reciprocal no-first-use undertakings, and of a non-use undertaking by them in relation to the non-nuclear weapons states.
    2. International agreement by the year 2000 on a Nuclear Weapons Convention that, under strict international control, would eliminate all nuclear weapons within a reasonable period of time and prohibit their possession.
    3. The establishment by treaty of a permanent International Criminal Court to hold all individuals, regardless of their rank or nationality, accountable for acts constituting crimes under international law. Considerable progress has been made in preparing such a treaty at the United Nations. It may be hoped that this treaty will be ready to be opened for signatures in 1998, and certainly by 1999 when a third International Peace Conference is convened in the Hague.