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1990 - 1999

 

The Evolution of International Criminal Law

 

By Benjamin B. Ferencz

published: November 1999

source: S & F Foundation, Hamburg, Germany, November 28, 1999

 

A Bird's-Eye View of the Past Century

Every human society, if it is to live in security and freedom, must be governed by a system of clear laws, courts with binding authority and effective enforcement of generally accepted norms. Yet, international "laws" are often ambiguous or non-existent, courts to settle international disputes have only limited authority and enforcement is almost completely lacking. The creation of a permanent International Criminal Court to punish perpetrators of the worst crimes against humankind is still in its formative stages with details now being debated at the United Nations. Small wonder that there are millions of people throughout the world who continue to live in constant fear and misery. Here we shall trace the outlines of a century of slow evolutionary progress as hesitant nations reach out cautiously for a more civilized and humane planetary society. Seeing history in its proper perspective should encourage hope that, as we enter the next millennium, the future will be brighter than the past.

 

From The Hague to Nuremberg

International law is a fairly recent creation. In biblical times, unrestrained killing of your enemy, as well as his suckling babes, was a common practice; taking captives as slaves was a humanitarian advance. Roman law and church doctrines outlined principles for "just wars" and violators were subject to banishment, excommunication, torture or worse. Medieval sovereigns were presumed to reign by Divine right and thus immune from man-made law. When treaties were breached, the ultimate remedy was to resort to war.

 

From the 16th to the 18th centuries, scholars such as Puffendorf at Heidelberg and Grotius in Holland, advocated new approaches to govern international society. The English philosopher Jeremy Bentham is credited with having used the term "international law" for the first time around 1789. In 1795, Immanuel Kant's Zum ewigen Frieden - inspired by the revolutions in France and America - advocated an international order requiring all states to be bound by ethical and legal rules. During the unrestrained American civil war in the 1860's, President Abraham Lincoln called upon Professor Franz Lieber (a former Prussian officer who was teaching at Columbia University in New York,) to draft a set of humanitarian rules to govern the behavior of soldiers in the field. Detailed reforms of the international legal system were advocated by such scholars as Professor Johann Kaspar Bluntschli of Heidelberg who wrote Das moderne Volkerrecht der Civilisierten Staaten, als Rechtsbuch dargestelt (1868). But plans for a reformed world order were scoffed at by military heroes like Prussian Field-Marshal von Moltke; militant decision-makers went about their business of killing as usual.

 

It was in 1899, only a century ago, that what was heralded as "The First International Peace Conference" was convened. The title was a misnomer. In fact, it was a disarmament conference initiated by the Czar of Russia who found himself in a financially unbearable arms race with France. Delegates from 26 self-styled "civilized states" came together for about 10 weeks in pleasant surroundings at The Hague where they filled the summer air with flowery speeches. Compulsory arbitration of disputes was rejected; instead they focused on more humane ways of slaughtering each other. At the end, they drew up three Conventions, three Declarations and six Voeux or wishes, carefully laced with ambiguities and exceptions. Signatories agreed to "use their best efforts"... "as far as possible" and to disregard the rules if national honor or "essential interests" might be endangered. It was more a wish list than a binding accord. The problem of enforcement was not even mentioned.

 

A follow-up Second Hague Conference, expanded to 50 participants, took place in 1907. It improved some of the earlier texts but was not significantly different. In truth, leading participants were not ready to accept major changes in the legal order. The melancholy conclusion is confirmed in a private letter from the German Kaiser Wilhelm II in 1906. The Monarch made plain that he would reluctantly attend the Hague Conference but in practice he would continue to rely only on his "God and sharp sword". His contempt for rules of war or law was confirmed by his defiant boast, in rather pungent barroom language, that he would disregard all the resolutions. [1] It would not be long before nations found themselves in the midst of the unparalleled tragedy that became known as The First World War.

 

After some 10 million soldiers and another 10 million civilians had been killed and another 20 million dead from famine and disease, there was an enormous public outcry among the victims that those responsible for the war, and for such atrocities as using poison gas and sinking hospital ships in violation of the Hague Conventions and customs of war, should be held to criminal account. In November 1918, with the war lost, Kaiser Wilhelm II abdicated and fled to Holland; which had remained neutral.. A Peace Conference of the "Great Powers" in 1919 led to the appointment of a committee of legal experts to determine the "Responsibility of the Author's of the War." Germany was found to be the principle culprit. Since, at that time, there was no international court competent to try a sovereign Head of State and no one had ever been convicted for the crime of aggression before, the Dutch refused to extradite Wilhelm and he lived famously as "the woodchopper of Doorn."

 

The frustrated Committee of Experts recommended that it should be made clear that—in the future—aggression would be punished as an international crime. Unable to indict the German Monarch for aggression against "little Belgium," a face-saving provision was written into the Treaty of Versailles requiring Germany to hand the Kaiser over to stand trial for " a supreme offense against international morality and the sanctity of treaties". In addition, about 900 listed German officers accused of atrocities were to be surrendered for trial by an Allied war crimes court. Although Germany had signed the Treaty, these provisions were denounced as a diktat and Germany refused to comply. After much wrangling, it was finally agreed that the Germans would try their accused in their own Supreme Court at Leipzig. The Kaiser was never put on trial and, as might have been expected, almost all other defendants were acquitted; those few who were convicted received light sentences or soon managed to escape.

 

American President Woodrow Wilson campaigned vigorously, for the creation of a League of Nations as part of the Versailles Treaty. But, the U.S. Constitution required consent by two-thirds of the Senate before any treaty could be ratified. A small number of conservative Senators succeeded in blocking ratification and thus the League's strongest advocate never became a member of the first international organization created to maintain peace. The Covenant of the League envisaged the use of economic sanctions—"the economic weapon"—to deter war. But enforcement required consent of all the Members; everyone had a veto right. It soon became clear that nations were still not ready to yield their sovereign prerogatives. Just as they had failed to accept adjudication or arbitration of disputes when those subjects were debated at the Hague in 1899 and 1907, they remained unwilling to give up their right to go to war and to decide for themselves when sanctions against aggressors should be applied.

 

Japan invaded Manchuria in 1931 and Italy brazenly attacked Ethiopia in 1935 in clear violation of the League's Covenant. The League failed to take collective economic or military measures to halt the aggression. The United States Congress, influenced by its isolationist members, passed laws to assure American neutrality. Hitler, defying the Peace Treaty, marched his troops into the Rhineland in 1936. Japan launched another aggression against China in 1937. The next year, Germany annexed Austria and moved against Czechoslovakia. World political leaders, longing for peace and fearing war, still failed to take decisive collective action to stop Hitler's march of conquest. The peace plan of the League was never given a chance. Instead, nations began, as they had in the past, to scramble for new military alliances that might save them. On September 1, 1939, German planes launched a massive Blitzkrieg against Poland; its allies France and the United Kingdom reluctantly declared that they were at war with Germany. The world was soon engulfed in World War II.

 

The Nuremberg Trials

There is no need to recount here the aggressions, crimes against humanity, war crimes and other atrocities committed during the dozen-year reign of Adolf Hitler's "Thousand- Year Reich." Long before the war ended, Germany had repeatedly been warned by the Allied Powers that those responsible for causing the war and the crimes against humanity that - were being committed on a massive scale would have to answer for their deeds. In May 1945, Germany surrendered unconditionally. The British proposal - that arch-criminals should simply be taken out and shot - was opposed by the United States that insisted upon fair trials for the accused. It took the four occupying Powers

 

(US, UK, France and USSR) a scant six weeks to reach agreement in London on a Charter that set down the law and procedure that would govern the proceedings of the International Military Tribunal (IMT) created to conduct war crimes trials at Nuremberg. The opening statement by America's Chief Prosecutor, Robert M. Jackson (a Judge on leave from the US Supreme Court) gave assurance that the primary purpose was to advance law and justice:

That four great nations, flushed with victory, and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason ... 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 that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice. [2]

 

The IMT Charter gave the Tribunal jurisdiction over only three categories of crimes: (a) Crimes against Peace, which meant the preparation and waging of a war of aggression, (b) War Crimes, namely violations of the traditional laws and customs of war, and (c) Crimes against Humanity, such as extermination and enslavement of civilian populations. Leaders who conspired to commit those crimes would be culpable, regardless of rank or station and superior orders would be no excuse.

 

Twelve subsequent war crimes trials, based on a slightly improved Charter (Control Council Law No. 10) were then held at Nuremberg under the direction of General Telford Taylor (later Columbia University Professor). The entire panorama of Nazi domination and crime was exposed and the record of incredible criminality was unquestionably confirmed by official German documents. Responsible leaders from various spheres - doctors, lawyers, ministers, industrialists, militarists and SS killers - were called to account in courts established by the United States. Similar trials of Japanese war criminals took place in Tokyo and in countries that had been occupied by the Axis powers. These trials further reinforced the principles of law laid down by the IMT. The Nazi defendants at Nuremberg, represented in open court by lawyers of their own choice and confronted by their own undeniable records, were given fair trials the likes of which they— in the days of their own pomp and power—never gave to anyone.

 

Contrary to popular belief, the Nuremberg Charter was not something that was suddenly invented from whole cloth. The long list of precedents cited by the distinguished IMT jurists made plain that the Charter was not ex post facto justice. Its articulation of Crimes Against Humanity reflected and clarified emerging precepts expressed in the Conventions at The Hague and other international pacts where nations, groping, for a more humane order, relied on "the laws of humanity and the dictates of the public conscience." Nuremberg confirmed that when cruelties, such as genocide, reached a magnitude that shocked the conscience of humankind, it should and could be punished as a crime against all of humankind.

 

In charging defendants with the crime of aggression, Nuremberg admittedly took another small step forward that deliberately went beyond the sterile legalisms developed during the age of imperialism. The IMT judges noted that the law is not static and must grow to meet the needs of a changing society. Justice Jackson said it best: "It is high time that we act on the juridical principles that aggressive war- making is illegal and criminal ... so as to make war less attractive to those who have governments and the destinies of people in their power." [3]

 

Nuremberg's greatest contribution was that it sought to eliminate the source of the most devastating human rights violations: war-making itself. For the first time in human history, aggressive war was repudiated as a national right and condemned as an international crime. The Nuremberg and subsequent war crimes trials were the foundation stones on which a new order of humanity, international justice and peace were to be built.

 

The United Nations Moves From Stalemate to Action

Nineteen other nations adhered to the Nuremberg Charter. The Nuremberg Principles and Judgment were unanimously affirmed by the entire General Assembly of the United Nations in 1945. Outraged by the Nazi inhumanities revealed by the Nuremberg trials, the United Nations promptly appointed committees to codify the Nuremberg Principles into a criminal code and to create an international criminal jurisdiction where such offenses, including the crime of genocide, could be punished and deterred. Unfortunately, the advent of the "cold-war" paralyzed effective action at the UN where, for many years, the efforts at codification and implementation of international criminal law were stymied. UN committees drafted Statutes in 1951 and 1953 for an International Criminal Court. In 1954 a draft Code of Offenses Against the Peace and Security of Mankind was debated but no consensus could be reached on either Code or Court. One of the excuses given to justify the lack of progress was that without a precise definition of the crime of aggression there could be no complete criminal Code; without such a Code there was no need for a Court. While diplomats quibbled, aggressive wars and massive crimes against humanity continued to be committed throughout the world.

 

The Nuremberg court in condemning aggression as "the supreme international crime" - even without a precise definition - reasoned that decisions to go to war are made by individuals and not by abstract entities. Key Nazi leaders must have known that what they were doing was a violation of international law. Justice demanded that the persons responsible for the war must be held to account in a court of law. After years of meticulous debate, the UN, without a vote, adopted a consensus definition of aggression in 1974. All agreed that "a war of aggression is a crime against international peace." The UN Charter made clear that it was the duty of the Security Council to determine the existence of an act of aggression. The consensus confirmed that the Council could decide whether aggression had occurred "in the light of all the circumstances." Despite vague formulations, that were accepted in order to reach consensus, the existence of the definition cleared the path for further progress on the criminal Code and Statute for the proposed new International Criminal Court.

 

While the International Law Commission, a body of 34 "independent" legal experts, continued its plodding efforts to reach agreement on a draft international criminal Code and the Statutes for a criminal court to enforce the Code, armed conflict erupted in the former Yugoslavia. Rival ethnic, religious and political groups attacked each other with uncontrolled ferocity. Worldwide television showed prison camps reminiscent of Dachau and Auschwitz. Confirmed reports described how thousands of women had been raped and many more thousands of innocent civilians were brutally driven from their homes in what was euphemistically called "ethnic cleansing." There was nothing clean about it; it was filthy genocide! An outraged public demanded action to bring the criminals to account. The UN Security Council, acting within its Charter authorization to create subsidiary organs, promptly created an ad hoc International Criminal Tribunal (ICTY) to try those who had committed crimes against humanity in the former Yugoslavia since 1991.

 

In 1994, a brutal civil war erupted in Rwanda. An Investigative Commission appointed by the UN Security Council confirmed that perhaps half-a- million men, women and children had been systematically and savagely hacked or bludgeoned to death by rival ethnic tribes in that devastated country. Powerful nations, reluctant to interfere in an internal conflict that did not threaten their own vital interests, failed to intervene in time to halt the genocide. Again responding to public outrage, the Security Council quickly created another ad hoc criminal court (ICTR) authorized to bring to justice those leaders who were responsible for the genocide and other crimes against humanity committed in Rwanda in 1994. To save money, the ICTR, located in Tanzania, was administratively linked to the ICTY that was headquartered in The Hague. What is particularly noteworthy is that, once the political will was aroused, it was possible for the Security Council - in a matter of months -to lay foundations for new criminal courts authorized to bring before the bar of international justice those accused of major 'crimes against humanity. The Council had invented International Criminal Courts a la carte!

 

It was to be expected that these new legal institutions, lacking their own financial resources and enforcement personnel, would encounter enormous legal, political and administrative problems. Several high-ranking indicted suspects, for example, still remain at large in former Yugoslavia and elsewhere. Powerful nations hesitate to take the risks involved with forcible arrests and the Security Council often fails to provide necessary support to its own legal offspring. What is remarkable is that - despite the many difficulties - the ad hoc tribunals have managed to function as well as they have. It is a tribute to their dedicated prosecutors, judges and staffs that they have already established a record of fair trials against a number of significant wrongdoers. The tribunals have also set important precedents for the further development of international criminal law and procedures. They have, to a certain extent, helped to diffuse animosities by encouraging peace through justice rather than vengeance. The ad hoc tribunals created by the Security Council are new born babes on the international scene; they must be helped to grow as additional stepping stones toward a more humane world order under law.

 

A Permanent International Criminal Court

A string of temporary tribunals, created after enormous crimes have been committed and with jurisdiction limited in time and place, is certainly better than allowing vengeance to run rampant or granting effective immunity to mass murderers. But temporary courts created a la carte on a selective basis are not good enough. To be respected, international law must apply equally to everyone, everywhere. Human rights must apply equally to all humans. The continuing existence of massive crimes against humanity cried out for the creation of a permanent International Criminal Court (ICC) to bring to account those who threaten the peace and security of human beings anywhere; regardless of ethnicity, color, religious or political persuasion. It seemed to many that the time had come to close a glaring gap in the international legal order.

 

The UN General Assembly prodded the International Law Commission to accelerate its work. In 1994, the Assembly created a Preparatory Committee to take the lead in creating the ICC. By 1998, the Committee had made great progress but the differences still remained formidable among nations with different legal and social traditions. Small states, distrustful of courts created by a Security Council that many viewed as politically biased, favored a completely independent tribunal. Some powerful states, while professing, support for a more effective legal mechanism, seemed quite content with the existing legal order based on military might. The hundreds of legal, procedural and technical difficulties that had to be overcome before compromises could be acceptable to hundreds of sovereign nations imposed' enormous challenges.

 

The climax to a century of hope and years of preparation was reached in Rome on 17 July 1998. Following five weeks of intensive negotiation, high-ranking representatives of major world powers, by a vote of 120 in favor and only 7 against, reached agreement on a draft Treaty the opening sentence of which proclaimed: "An International Criminal Court is hereby established." Chairman Philippe Kirsch of Canada quivered with emotion as he hailed the historical moment. UN Secretary-General Kofi Annan flew to Rome to celebrate what he called "a gift of hope to future generations, and a giant step forward in the march toward universal human rights and the rule of law." [4]

 

The understandable euphoria obscured the fact that many compromises that were necessary to reach the successful conclusion significantly diluted the original aspirations. Many important nations, including the United States, China and India, did not seem to share the wild enthusiasm. Furthermore, the Court could not start functioning until at least 60 nations ratified the Treaty ; that might require difficult constitutional amendments. There were severe limitations on the Court's jurisdiction: The International Court could act only in those cases where national states were unwilling or unable to grant the accused a fair trial; the Prosecutor could not act without prior approval by judicial supervisors. In certain cases, the defendant could not be indicted unless the state of his nationality consented to the trial. A host of procedural rules would still have to be agreed upon before the Court could begin to operate and there was no agreement on how the tribunal was to be funded. A new Preparatory Commission went to work promptly in an effort to complete the vital unfinished business during the year 2000.

 

From a historical perspective, one of the major disappointments was the inability of states to accept the Nuremberg conclusions regarding the crime of aggression. Some States seemed not to recognize that the General Assembly mandate in 1945 required that the Nuremberg crimes-of which aggression was the heart-should be incorporated into a criminal code for prosecution by an International Criminal Court. Others, had not participated in the intensive debates that had produced the consensus definition of aggression in 1974, argued that aggression was still inadequately defined for purposes of a criminal statute. These differences were intensified by distrust of the Security Council and its unfair veto power. There just was not enough time in the hectic days at Rome to reach an accord. In the face of serious danger that the greatest of all crimes would be dropped from ICC's jurisdiction altogether, it was rescued by a last-minute procedural compromise: the Court could take no action on aggression until nations agreed on its definition and the role of the Security Council. Furthermore, expanding ICC's jurisdiction to deal with the crime of aggression could only be considered as an amendment to the Rome Statute that could be taken up seven years after the Treaty had been ratified by 60 nations - whenever that might be. Estimates vary about when the International Criminal Court will become a functioning reality; optimists say it may be only a few more years.

 

Conclusion

The events we have sketched did not take place in a vacuum. The world is in incessant turmoil and one century is barely a blink in the eye of time. Yet, in the field of our particular focus, certain patterns slowly emerge from the turbulent and murky darkness. We described how powerful sovereigns began the century by striving to ameliorate the intolerable burden of an arms race. Their efforts, cloaked in a longing for peace, were too feeble to overcome ancient traditions. National leaders who controlled the destiny of people in their domain sought security and freedom for themselves and their people through war rather than law. Their inability to devise or accept new rules to govern the conduct of independent states cost the lives of millions of innocent subjects who died a miserable and violent death as pawns in futile struggles for national power or prestige.

 

From the ashes of despair of the Second World War arose a renewed determination of people everywhere to seek a more tolerable structure of international society. The United Nations was created primarily "to save succeeding generations from the scourge of war". A Universal Declaration of Human Rights was widely acclaimed. The judgments at Nuremberg declared that aggression, crimes against humanity and grave breaches of the rules of war would no longer go unpunished. No one then anticipated that these pillars of peace were being built on sand. Subsequent tragedies demonstrated that many countries could not escape their past habits of violent thought and action. Nothing had been able to eliminate the age-old rivalries between those who had faith in law and those who had faith only in war. Amidst the continuing chaos, slow progress toward a rule of law and the protection of fundamental freedoms can be discerned by the eager and perceptive eye.

 

Over the years, new methods were found to expand the reach of international justice. New regional courts were created, in Strasbourg and elsewhere, where aggrieved individuals could bring even their own governments to account for human rights violations. An international Law of the Sea Tribunal was erected in Hamburg to settle maritime disputes by peaceful means. There arose a growing willingness to settle commercial differences without resource to force. Even the International Court of Justice, with its limited jurisdiction to deal only with disputes among consenting states, was busier than ever with Decisions and Advisory Opinion covering interpretations ranging from the Genocide Convention to the lawfulness of nuclear weapons.

 

International criminal law is clearly on the march. The tribunals created by the Security Council to vindicate barbarities committed in Yugoslavia and Rwanda are now fully functional. A permanent International Criminal Court - despite pre-natal shortcomings - is in formation. Instantaneous communications now alert the world to outrageous atrocities wherever they occur. International Criminal Courts are being considered to penalize crimes against humanity committed in Cambodia, Iraq, Sierre Leone and many other lands. Chile's former Dictator Augusto Pinochet, despite a self-granted writ of immunity, remains confined in England to answer an arrest warrant issued by a Spanish court charging him and his cohorts with systematic torture of Spanish citizens. Non-governmental organizations, that played a very significant role in advancing the International Criminal Court, have become vigorous proponents of fundamental human rights everywhere. This past century marks the spread of democracy and with it the inevitable erosion of state power; the individual citizen comes under the protective mantle of international jurisprudence.

 

Albert Einstein warned that to avoid the drift toward endless catastrophe we must adopt new ways of thinking. "What is at stake," he said, "is the life or death of humanity." To be sure, there has been significant progress toward security and peace but much new thinking is still needed. Nuclear weaponry poses a universal threat. Internal conflicts continue to stain the human landscape with uncontrolled violence. International law does not require the world community to tolerate the intolerable, the parameters of the right to self-determination and the means that may legitimately be employed to achieve that worthy goal must also be clarified and enforced. Lawful goals cannot be sought by unlawful means. Tolerance and compassion must be taught to replace the blind hatred that animates human brutality. An impartial international judiciary authorized to deal with disputes that threaten human existence is a vital tool for a peaceful world.

 

The United Nations, and particularly the Security Council, must be reformed if it is to fulfill its promise to humanity. There must be clearer rules about when unilateral or multilateral intervention without Security Council mandate may be permissible. No one, and no nation, should be entitled to take the law into its own hands. Aggression can not be disguised as humanitarianism. We now live in a global society where all major problems are global and can only be solved globally. No person and no nation can feel secure until all are secure. If one reviews the positive trend of history - despite delays and shortcomings - one can find the hope and the energy needed to move toward a more humane and peaceful future.

Benjamin B. Ferencz, J.D., Harvard, 1943, was Chief Prosecutor in the Einsatzgruppen Trial at Nuremberg and directed the post-war programs seeking restitution for Nazi victims.

 

[1] "Ich scheisse auf die ganzen Beschluesse!" See Jost Dulffer (Duelffer), doctoral dissertation: Regeln gegen den Krieg? Die Haager Friedenskonferenzen 1899 und 1907 in der internationalen Politik; Berlin Ulstein (1981) p. 93. I am indebted to Prof. Klaus Schlichtmann for drawing my attention to this citation.

[2] Robert H. Jackson, The Case Against the Nazi War Criminals (N.Y. Knopf, 1946) pp. 3-7.

[3] Mr. Justice Jackson's Report to the President, June 6, 1945, International Conference on Military Trials (London, 1945) pp. 42-54.

[4] UN Press Release L/ROM/23, 18 July 1998.

 

 

 

 

 

 

 

 

Telford Taylor: Pioneer of International Criminal Law

 

By Benjamin B. Ferencz

published: November 1999

source: Columbia Journal of Transnational Law, Vol. 7, 1999

 

Columbia Journal of Transnational Law: Inmemoriam

Nov. 1 1998

 

Telford Taylor (TT), gifted author, lawyer, prosecutor, professor, sportsman, musician, composer and visionary, will best be remembered as a far-sighted and courageous champion of universal human rights. He was a General whose primary concern was the preservation of peace. Nuremberg made plain that aggressive war was not a national right but an international crime. Principles of humanity that had slowly been evolving were articulated, codified and enforced. Taylor recognized that to avoid the aspersion that Nuremberg's legal prohibitions were intended only for Germans it would be necessary to create a permanent international criminal court.

 

Taylor had served under Justice Robert H. Jackson as one of the main prosecutors in the Nuremberg trial against Goering et al before the International Military Tribunal (IMT). Taylor found inspiration in Jackson's ringing opening statement:

 

We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well... The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated... *1  The IMT judgment, rejecting the contention that no sovereign had previously been charged with a crime against peace, held that aggression was "the supreme crime" and that leaders who conspired or planned aggression are accountable since crimes are committed by men, not by abstract entities. *2 When Jackson returned to the U.S. Supreme Court, Taylor was appointed Chief of Counsel for the twelve subsequent trials at Nuremberg under Control Council Law No.10, which clarified and improved the Charter of the IMT by, inter alia, making explicit that crimes against humanity could be punishable even if not related to war. Taylor's primary objective was to establish an incontestable record of Nazi criminality while reaffirming existing international law and moral standards on which the future of humankind depended. In a speech delivered (in French) in Paris in 1947, Taylor noted: "Judicial recognition of the long-established and universal conviction of civilized men that aggressive war is a crime is a milestone in the development of international law and a new foundation stone of civilization." He concluded:

 

It should not be beyond the resources of human ingenuity to establish an appropriate judicial mechanism for the prevention and punishment of crimes against humanity, even in time of peace...and if the nations of the world can establish a permanent jurisdiction for their punishment, based on practical, enforceable, and enlightened principles, we will indeed have reached a turning point in the history of international law.*3 When the Nuremberg trials were over, Taylor noted that the first and most important category of crimes condemned at Nuremberg was war-making itself. *4 TT always insisted that "The laws of war are not a one-way street." *5 The first assembly of the United Nations unanimously approved the principles of the Nuremberg Charter and Judgment and soon appointed committees to codify international criminal law and move toward creating a permanent international criminal court. But cold war antagonisms blocked significant progress. Nations sought to justify inaction by their professed inability to reach agreement on a definition of the crime of aggression - an obstacle that neither Justice Jackson nor Telford Taylor found insurmountable. While diplomats quibbled, sovereign nations returned to old habits: crimes against humanity and aggression raged throughout the world. And there were no trials to deter or punish the criminals. Taylor, a trained historian, sought to understand and write about Nazi aggressions and crimes and why decent people allowed such things to happen. *6 As a constitutional lawyer, TT upheld the American constitutional system against witch-hunts aimed at suspected "communist sympathizers" by Senator Joseph McCarthy and the "nationalist alignment". *7 He spoke out against the Soviet judicial system and traveled to the Soviet Union to seek the release of imprisoned dissidents.*8 He traveled to North Vietnam and sharply criticized his own government for having forgotten the lessons it tried to teach the rest of the world at Nuremberg. *9

 

Fortunately, Taylor lived long enough to see the creation of the first truly international criminal court since Nuremberg. In response to mass rapes of thousands of Muslim women, and public outrage of women all over the world, the United Nations Security Council created the International Criminal Tribunal for Crimes in former Yugoslavia to prosecute those responsible for genocide, crimes against humanity and massive war crimes *10 Its first Prosecutor, the respected South African Judge Richard Goldstone, visited the aging TT in New York as a sign of respect and admiration. Despite initial organizational difficulties, the ICTY, located in the Hague, is now a "vibrant, fully functioning judicial body." *11 It will be even more effective if it receives the full support of the Security Council to enforce its arrest warrants and mandates. A similar tribunal was created by the Security Council when half-a-million Tutsi fell victim to genocidal slaughter in Rwanda. *12 Both the ICTY and the International criminal Tribunal for Rwanda were important steps forward after Nuremberg but they did not go far enough.

 

A string of special courts created by the Security Council after the tragedies have occurred , with competence to try only a very restricted number of crimes committed during a limited time-frame, is hardly the best way to establish the universal justice envisaged by Justice Jackson or Telford Taylor. An agreed definition of aggression, the stated barrier to codifying crimes against the peace and security of mankind, was overcome by a consensus definition reached by the United Nations in 1974. *13 The long-delayed Code of Crimes and the statutes for an international criminal court were completed by 1996 *14 UN committees intensified their efforts to reach agreement on a permanent court. The high-point was reached at a Diplomatic Conference in Rome on July 17, 1998 when by an overwhelming vote, nations finally agreed to create the first permanent International Criminal Court (ICC) in history. TT, age 90, had passed away two months earlier.

 

The treaty creating the court must still be ratified by at least 60 nations before it can go into effect. Legal, administrative and procedural problems must still be overcome. The ICC will only have jurisdiction to prosecute after a number of conditions have been met and it is clear that the state of the accused' nationality is unable or unwilling to provide a fair trial. The IMT Charter crimes of aggression, crimes against humanity and war crimes, together with genocide, will be punishable by the ICC. But the most important crime - aggression - will not come with ICC's competence until a new definition is reached and the role of the Security Council in determining the aggressor is clarified. Those pre-conditions can only be met at a review conference scheduled for 7 years after the treaty goes into effect - whenever that may be.

 

The United States has been a strong supporter of the ICTY and the ICTR and both the President and the Secretary of State have spoken out in favor of an ICC. But other voices in the country, notably the Chairman of the Senate Foreign Relations Committee and voices from the Pentagon, have argued against the treaty as long as it contains any risk that an American soldier might be tried by the ICC for war crimes. It remains for the American public, and the legal community in particular, to let its views be known. The highest tribute we could pay to the memory of General Telford Taylor would be to sign the treaty and reassert the noble principles for which he and our government stood when the United States and its visionary representatives inspired the world at Nuremberg. *15

 

BENJAMIN B. FERENCZ

The author was hired by Telford Taylor in 1946 and became his Executive Counsel as well as the Chief Prosecutor in the Nuremberg trial against 23 SS Einsatzgruppen (extermination squad) members convicted of murdering over one million people. He was later Taylor's law partner in New York.

______________________________________________________________

Notes:

1- See TT Anatomy p. 167, 168; 1945, Jackson, quoting precepts going back to Grotius, reported to President Truman: "It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal." See TT report 130.

2- See TT Report. p. 66, 145, 146.

3-Unpublished speech, "The Meaning of the Nuremberg Trials", Paris, 25 April, 1947. I am grateful to Drexel Sprecher for having provided me with the text. In his concluding argument in the trial against the I.G. Farben company, Taylor noted..."no voice is heard to say that aggression is not a crime. There is no longer any real doubt about the law against aggression..." (International Conciliation, April 1949. p.237).

4- TT Report p. 64, 66

5- Anatomy p. 641

6- Sword and Swastika - Generals and Nazis in the Third Reich (1952); The March of Conquest - The German Victories in Western Europe 1940 (1958); Munich - The Price of Peace (1979).

7- Grand Inquest - The Story of Congressional Investigations (1955).

8- Courts of Terror - Soviet Criminal Justice and Jewish Emigration (1976).

9- Nuremberg and Vietnam - An American Tragedy (1970).

10- SC Res. 808, 22 Feb. 1993; S/25704, 3 May 1993

11- See Report of the Presidents of the ICTY to the UN.

12 Res. 955, 1994

13- XXX See Ferencz, The UN Consensus Definition of Aggression: Sieve or Substance, 10 Jour. of Int. Law and Economics, George Washington University, Aug.-Dec. 1975 p.701.

14- A/49/355 1 Sept.1994, ILC Draft Statute for an ICC; A/CN.4/L.532, 8 July 1996, ILC Draft Code of Crimes.

15- A detailed analysis of the crime of aggression can be found in Gabrielle Kirk McDonald and Olivia Swaak-Goldman, Editors, Substantive and procedural Aspects of International Criminal Law, Spring 1999. See also B. Ferencz, A Prosecutor's Personal Account - From Nuremberg to Rome, Journal of International Affairs, Columbia University, Spring 1999

 

 

 

 

 

 

 

Plea of Humanity to Law: Need for an International Criminal Court

 

By Benjamin B. Ferencz

published: April 1999

source: Web Posting

 

THE GOAL

Fifty years ago, on 29 September 1947 to be exact, I stood before a tribunal in the courthouse at Nuremberg and accused 22 members of the SS Einsatzgruppen of responsibility for the cold-blooded massacre of more than a million innocent and defenseless men, women and children. The victims - Jews, Gypsies, and others perceived as potential enemies of the Reich - were ruthlessly exterminated. Millions of others were similarly marked for death solely because of their race or faith. As a soldier in the American army participating in the liberation of many concentration camps, I personally witnessed the remnants of indescribable Nazi atrocities. What penalty did the accused criminals deserve? I simply asked the court to affirm, by international criminal law, the right of all human beings to live in peace and dignity regardless of their race or creed. It was "a pleas of humanity to law." I make the same plea today.

I was then 27 years old. In the intervening half-century I was deeply engaged in Germany and elsewhere in trying to help those who had survived what came to be known as The Holocaust. Under U.S. Military Government law, I was designated Director-General of the Jewish Restitution Successor Organization to recover heirless and unclaimed properties confiscated from victims of persecution. The proceeds were earmarked to benefit survivors rather than the German state. In The Hague, in 1952, I helped to negotiate the laws enacted under the leadership of Chancellor Konrad Adenauer to offer some measure of compensation to those who had been illegally imprisoned and permanently injured. I set up offices in many German cities, in Bonn and throughout the world, to assist Nazi victims with their restitution and compensation claims. No one can ever "make good again" the terrible losses they endured but it was an unprecedented historical effort to use the law as an instrumentality for bringing some measure of humanity back to a nation that had been marred by unprecedented inhumanity.

 

What we were trying to do then, and what we are trying to do today, is to move toward a world order in which all human beings, regardless of their religion, color or political persuasion can live in peace and freedom and enjoy at least the minimum standards needed for human dignity. Sometimes, as we look around us, it is hard not to be discouraged. But if we look at the broader picture in historical perspective, the eager eye can see the line of progress and the heart can take hope that change is possible and that we can make a difference if we try.

 

PROGRESS AND PROBLEMS:

The Nuremberg trials were not invented out of whole cloth. The major trial before the International Military Tribunal, where U.S. Supreme Court Justice Robert Jackson was the chief architect and Prosecutor for the United States, as well as the twelve subsequent trials at Nuremberg under the direction of Telford Taylor, were based upon legal precedents that had been evolving over a long period of time. The commonly held notion that these were ex-post-facto proceedings is a misperception.

 

In 1899 and 1907 nations meeting at the so-called Peace Conference in The Hague, agreed upon minimum standards of behavior in wartime. The preamble to the Hague Conventions spoke of bingeing customs arising from "the laws of humanity and the dictates of the public conscience." After World War I, it was recognized that aggression was a crime and "those who have been guilty of offenses against the laws and customs of war or the laws of humanity are liable to criminal prosecution." But since there had never been any tribunal to deal with such offenses in the past, it was concluded that no judicial proceedings should be undertaken against the wrongdoers. The Allied Commission on Responsibility concluded: "It is desirable that for the future penal sanctions should be provided . . ." Unable to agree that a head of state could, under existing law, be punished for "aggression" or what United States Secretary of State Lansing called the vague "laws of humanity," and there being no international court to try the accused, Article 227 of the Treaty of Versailles contained a compromise. The Kaiser was to be handed over and tried "for a supreme offense against international morality and the sanctity of treaties."

 

Germany signed the treaty in 1919 but one month later denounced it as a Diktat. Holland, where Kaiser Wilhelm had taken refuge, noting the absence of a competent international criminal court, refused to surrender the German leader. A further compromise required the German Supreme Court to try a list of German officers who had violated the laws of war. This too turned out to be a farce. Despite the recommendation of a significant number of distinguished legal experts from many nations, victorious sovereign states were not really willing to establish any independent criminal court at that time. Those who had not learned the lessons of history were doomed to repeat them.

 

The Covenant of the League of Nations, intended to prevent war, also proved to be inadequate to maintain peace. Japan’s aggression against Manchuria in 1931 went unpunished. When, in 1934, a Croatian terrorist assassinated King Alexander of Yugoslavia and the French Foreign Minister, France demanded an international criminal code and court to punish terrorists. Under League auspices, two conventions were completed by 1936: one for the Prevention and Punishment of Terrorism, the other for An International Criminal Court. Neither went into effect. Not a single state ratified the Convention for the Criminal Court. Would they ever learn?

 

The history of Italy’s aggression against Ethiopia and Germany’s aggressions against its neighbors needs no repeating. France and England, leading members of the League, failed to enforce their own Covenant. Nor need we recount the atrocities of Hitler’s "total war." On January 13, 1942, nations that had been overrun by Germany convened at St. James Palace in London and issued a Declaration warning that those guilty of the crimes that were being committed would face "punishment through the channel of organized justice." Similar warnings soon came from all the Allied Powers and legal experts began to draft a new convention creating an international criminal court.

 

Germany surrendered unconditionally in May 1945. The victorious allies were already busy preparing for an international trial. Said Robert Jackson: "It is high time that we act on the juridical principles that aggressive war-making is illegal and criminal . . . so as to make war less attractive to those who have governments and the destinies of people in their power." On August 8, 1945, the Charter for the International Military Tribunal was signed. "We must never forget," said Justice Jackson, "that the record on which we judge these defendants today is the record on which history will judge us tomorrow . . . . 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." And so it did.

 

The distinguished jurists on the bench concluded that the Charter was "an expression of international law existing at the time of its creation . . . . To initiate a war of aggression . . . is the supreme international crime." "The law is not static," said the Court, "but by continued adaptation follows the needs of a changing world." The first General Assembly of the United Nations unanimously affirmed the principles of law enunciated in the Charter and Judgment of the Tribunal. The precedents were followed by the Subsequent Proceedings in Nuremberg under Control Council Law number 10 and similar tribunals in Japan and other nations. Even leading German jurists have come to recognize that the Nuremberg trials were essentially fair. Nuremberg was an important beginning in the attempt by the civilized world to curb atrocious international crimes by the rule of law. But what happened after Nuremberg?

 

Stimulated by the revelation of shocking crimes committed by Nazi Germany, the new United Nations quickly passed a resolution condemning genocide as an international crime and creating committees to draft a code of crimes and rules for an international criminal court. It was a slow, a very slow, process. The desire to proceed by consensus combined with the cold-war tensions between the United States and the Soviet Union made significant progress impossible. The argument was advanced that there was no need for a court until there was a code of crimes and there could be no code of crimes until there was agreement on the definition of aggression. While delegates and diplomats and international lawyers haggled about details, acts of genocide, aggression, war crimes and crimes against humanity were committed in many parts of the world with impunity.

 

By 1974, as the cold-war was beginning to thaw, it was possible to reach consensus on a definition of aggression. It had its share of deliberate ambiguities but is existence cleared the stated hurdle to further progress on the code and court. In fact, most major powers lacked the political will to make significant chances in the international legal system. States that had power were unwilling to give it up and those who lacked power had no power to make needed changes. The crimes continued unabated.

 

The collapse of the Soviet Empire and its satellites opened the door to new possibilities for the constructive development of international law. When, in 1991, Yugoslavia fell apart and split into different states, there erupted forms of violence reminiscent of the Nazi era. "Ethnic cleansing" - a filthy practice that has nothing to do with cleansing - was a euphemism used to describe a form of genocide which included murder, torture, mass rapes and Nazi-style concentration camps. The victims, Muslims, Serbs or Croats, were members of the minority ethnic group that was to be forcibly driven from the region because of their race or faith. Television reports of horrendous brutalities shocked the human conscience. Public outrage stimulated the UN Security Council, acting within its peace-keeping authority under Chapter VII of the UN Charter, to move quickly. In a matter of months, the Secretariat of the UN was able to draft statutes for an ad hoc criminal tribunal that was approved by the Security Council and the General Assembly in 1993. It was the first truly international criminal court since Nuremberg and a significant step forward. When Rwanda was racked by similar genocidal ethnic crimes, the Security Council, in 1994, quickly created its second ad hoc tribunal. Despite enormous problems of staffing, financing, and enforcement capabilities, these two new organs of the Security Council were important steps forward in the development of international law and order.

 

Both the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have only limited jurisdiction to try crimes in the specified territory during a fixed time. As was stated at Nuremberg, if law is to be respected it must apply equally to everyone everywhere. If a permanent international criminal court had already existed, these ad hoc tribunals would not have been necessary. There would be no suggestion that they were politically motivated by outside nations that were not prepared to risk military intervention to halt the atrocities. It may be anticipated that similar crimes will be committed elsewhere. It now seems that all states have finally come to realize that what is urgently needed to close the glaring gap in the international legal order is a permanent international criminal court created under international control to administer justice equally to all. But how can that be done?

 

CURRENT NEEDS:

The first thing that needs to be done is to make sure that the new ad hoc tribunals succeed in their missions. That requires economic, political and even psychological support. The President of the Tribunals, Prof. Antonio Cassesse of Florence, Italy, is an outstanding international jurist. He should not be made to become a beggar - having to plea with the United Nations to support and back up the agency it created. Should the Security Council fail to enforce the decrees of the Tribunal, including its arrest warrants and subpoenas for documents, it would foul its own nest and undermine the new rule of law it purported to create in the interests of world peace.

 

I the existing ad hoc tribunals are allowed to fail, the high hopes of Nuremberg will die with them. The world will be condemned to more acts of genocide, aggression and crimes against humanity. Failure to support the ICTY and the ICTR would mock the victims of international crimes and encourage more criminality. These new courts are vital stepping stones to the much-needed and too-long delayed international criminal tribunal.

 

The International Law Commission, 34 world renowned experts elected by the United Nations, completed its 60-article draft Statute for a Permanent International Criminal Court in 1994. Its draft Code of Crimes was completed in 1996, after many years of debate. These drafts, even if accepted in their present form, would be an enormous improvement over what now exists. It is folly to expect that 185 member states of the UN, with different legal and social systems, can agree upon every detail. It is, of course, appropriate for every nation to be given the opportunity to express its view and to have that view respected. But the drive for consensus should not be allowed to become a trap. It is an invitation for tyranny by the minority. Refusing to advance toward a more rational and humane legal order until there is universal consensus is to condemn the world to stand still. Is this the world you want?

 

The UN Preparatory Committee, under the very able leadership of Adriaan Bos, Legal Advisor to the Netherlands, is continuing to seek agreement on the many articles of the drafts under consideration. What is most important is that they focus on the fundamentals. Almost all nations agree that, at the outset, the court should have jurisdiction over only a few core crimes. Nuremberg dealt only with Crimes against Peace (aggressive war), War Crimes and Crimes against Humanity. Some states wish to omit aggression since they mistakenly feel that its definition is not precise enough and might allow a biased Security Council to interfere with the independence of the court. These fears are misplaced. To eliminate aggression as an international crime is to cut the heart out of Nuremberg and it would strengthen the war ethic rather than the desired peace ethic of the future. The current German position, which requires the court to ascertain whether aggression by a state has occurred before the tribunal can consider the guilt of any alleged individual perpetrator, is a sensible proposal that is perfectly consistent with the UN Charter. One should not fear the objectivity and competence of independent judges elected with General Assembly approval. Public awareness and UN control of the budget offer adequate safeguards against judicial abuse.

 

Procedural and enforcement differences will also have to be reconciled. If a state is willing and able to cope with international crimes in a fair and reasonable way - as seems to be the case in Germany and some other nations - there is no need for international intervention. However, aggression, genocide and crimes against humanity are usually committed with the consent or complicity of a national government, hence the primary power of an international court is essential if such international crimes are to be effectively curbed.

 

FUTURE HOPES:

The current plan is to adopt the statutes for a permanent international criminal court in the form of a convention or treaty that can be signed in Rome as early as June 1998. But, as has been noted, signing a treaty at a diplomatic conference does not mean it becomes law. Treaties must be ratified and only bind consenting states. Should the treaty route falter - one must consider the alternative possibility of using the existing precedents and relying on the Security Council to create the necessary organ in the interests of world peace. The Council, by calling upon states to "use all necessary means" was able to repel Iraq’s aggression against Kuwait and set up a host of controls to prevent recurrence. Unfortunately, there was no tribunal to put the aggressor on trial. By setting up the ad hoc tribunals for Yugoslavia and Rwanda, the Council demonstrated its capacity to create new judicial organs that can help restore peace with justice. Where there is a political will there is a way.

 

The people of the world must make up their minds about the kind of world they want. If they like what they have, they need do nothing - but pray that they don’t become the next victims. If they don’t like the injustices and inhumanities that exist in the world today, they must have the courage to act on their convictions. They must let the world’s decision-makers in all countries know, by every lawful means, that the current inhumane practices will no longer be tolerated - that those who violate the international laws of humanity will have to stand before a court of law to answer for their deeds.

These were the hopes of Nuremberg. I had those hopes 50 years ago. I am now 77 years old. As I see the progress that is being made, and the awakening of the human conscience since I gathered evidence in the hell of the concentration camps in Germany half a century ago, my hopes remain alive. Germany has a special and important role to play in creating a more humane and peaceful world. It can be done. Never give up! Never give up! Never give up!

 

Benjamin B. Ferencz

April 23, 1999

 

 

 

 

 

A Prosecutor's Personal Account - Nuremberg to Rome

 

By Benjamin B. Ferencz

published: April 1999

source: Columbia Journal of Transnational Law, Spring 1999

 

Prelude to Nuremberg

When I was born in 1920, in a ramshackle cottage in a tiny village in Transylvania, no one could possibly have imagined the path my life would take. Hungary had ceded the region to Romania after World War I and my parents were eager to escape ethnic persecutions of the Hungarian Jewish minority. Without education, funds or skills, the young couple took their two babies and emigrated to the "Land of Opportunity" - America.

 

My childhood recollections begin in a basement apartment in Hell's Kitchen, a crime-infested district of New York City. My education was in the public schools and the free College of the City of New York. My main interest lay in crime prevention. [1] I was lucky to gain admission to the Harvard Law School where I won a scholarship based on my exam in criminal law. As a member of the Board of Student Advisers I earned some money coaching students and working as a research assistant to Professor Sheldon Glueck, a leading criminologist who was to have a profound influence on my later career.

 

When America entered World War II, I applied for an assignment in army intelligence but was disqualified because of my foreign birth. The Air Force turned me down because I was only five foot one-half inch tall. As soon as I received my law degree I became a private in the supply room of an anti-aircraft battalion being trained for the invasion of France. In due course, we landed on the beaches of Normandy, and joined General Patton's Third Army pursuing Germans back across the Rhine and on to the final "Battle of the Bulge". After almost three years of military service, I was honorably discharged as a Sergeant and was awarded five battle stars which, as far as I could make out, was a reward for not having been wounded or killed.

 

The most formative events of my army career had to do with war crimes. Allied leaders, had warned that Germans would be held to account for their atrocities. Professor Glueck had written a book on the prosecution of war criminals. [2] When Washington turned to him for guidance, he suggested that the army try to locate me, noting that I had just written an article on "Rehabilitation of Army Offenders" which identified me as a corporal with the 115th AAA Gun Battalion. [3] Much to my surprise, in December 1944, I was transferred to a new Judge Advocate section of Third Army Headquarters in Luxembourg that had been ordered to set up a War Crimes branch.

 

The first persons targeted for trial were Germans who had committed atrocities against American troops, such as killing prisoners or downed allied flyers. Captured Nazi concentration commanders would also be called to account before an American military court. Investigations were carried out by a few enlisted men. After digging up bodies of American flyers murdered by enraged German mobs, I prepared reports identifying the suspects and listing the laws of war that had been violated. Witnesses were ordered to write out a complete description of the criminal event - under penalty of being shot. Confessions from accused were obtained by similar persuasions - even though they were usually rewritten under more sympathetic circumstances before being validated by an officer who would offer it in evidence. It was a grisly assignment. But the worst was yet to come.

 

I entered several concentration camps, such as Buchenwald and Mauthausen strewn with putrid bodies of the dead and dying. My primary goal was to capture all official camp records, including registries of inmates killed in the camps and the roster of German officers and guards, and have the crimes certified by survivors' affidavits describing their ordeals and naming their torturers. Amid the overwhelming stench of burning skeletons, I was exposed to the filth of dysentery, diarrhea, typhus and other diseases that racked the emaciated bodies of the liberated inmates. I uncovered many mass graves as I followed trails of starving prisoners who had been whipped through the woods by fleeing guards—only to have their brains blown out when they could no longer go on. To keep from going mad, my senses became numbed as my mind built an artificial barrier and refused to be derailed by what my eyes saw. But the trauma was indelible and will remain with me forever.

 

As a form of symbolic justice, the army decided to try the captured criminals in a former Nazi concentration camp near Munich. I hammered up the sign saying U.S. ARMY WAR CRIMES TRIALS, DACHAU. The proceedings were in the nature of traditional military commissions following rules similar to those of regular army courts martial, where judges, prosecutors and defense counsel were U.S. army officers - many with no legal training. No great new principles of law were established and the trials were abruptly discontinued when Pentagon policy toward Germany was reversed. The less said about the U.S. Army war crimes trials the better. I left Germany as soon as I could after the war and hoped never to return there again.

 

The highly publicized trial against German Field Marshal Hermann Goering et al. before the International Military Tribunal (IMT) was already under way in Nuremberg. Shortly after I arrived in New York I received a telegram from the War Department inviting me to come to Washington. I was urged to return to Germany as a civilian with the simulated rank of full Colonel to continue doing essentially what I had done as an army sergeant. I was also interviewed by Colonel Telford Taylor, a key member of the US prosecution team at the IMT trial. The US had decided to conduct a number of additional trials at Nuremberg after the IMT trial was completed. These "subsequent proceedings" were to portray the broad panorama of Nazi criminality. Taylor was the man in charge and he was looking for help. He was a Harvard lawyer with a distinguished career in government and I agreed to join him. I was married in New York intending to leave for Nuremberg with my bride—also a refugee from Transylvania–for a pleasant European sojourn at army expense. It turned out to be quite an unusual honeymoon.

 

The Vision of Nuremberg

The Charter of the IMT was signed in London on August 8, 1945. Justice Robert H. Jackson on leave from the US Supreme Court, was its principal architect. It was agreed by the US, UK, France and the USSR that only three categories of crimes would fall within the jurisdiction of the international court: the crime against peace (aggressive war), crimes against humanity and war crimes. Superior orders would be no defense but could be considered in mitigation. The official position of the defendants would not free them from responsibility and leaders who were instigators and accomplices could be held accountable. No one could be convicted unless found guilty after a fair public trial. In their final judgment, the learned IMT jurists confirmed that the London Charter was a valid expression of existing and binding international law. The Nuremberg principles and Judgment were unanimously affirmed by the first General Assembly of the United Nations. [4]

 

Justice Jackson's opening statement as the Chief American Prosecutor was an inspiring call for universally binding international law:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility...That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason.... We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. [5]

 

The same principles guided Telford Taylor who was promoted to Brigadier General and Chief of Counsel for the twelve subsequent trials. Those accused included German doctors who directed medical experiments on helpless victims; German judges and lawyers who persecuted the innocent, industrialists like Krupp and the I.G. Farben companies that seized enemy properties and worked concentration camp inmates to death; diplomats who aided and abetted German aggressions; high-ranking military leaders who defied and violated established laws of war and Nazi Storm Troopers (SS) who murdered millions of innocent people in cold blood. [6]

 

My first assignment from Taylor was to head a team of about 50 researchers to scour the German archives in Berlin - including nearly ten million Nazi Party files - in search of incriminating evidence adequate to convict leading Nazi suspects under arrest in Nuremberg. My wife joined me and became a member of the staff. Time and budget was tight and only a tiny sampling of criminals, those against whom overwhelming evidence of crime was available, could be brought to trial. The rest would have to be left to other allied courts or possible prosecution by the Germans themselves. A surprise discovery in the ruins of Berlin brought another unanticipated change to my life.

 

The Einsatzgruppen Trial

As German troops invaded Poland and the Soviet Union, they were followed by special military units, known as SS Einsatzgruppen (EG), whose task it was to annihilate anyone who might present a current or future threat to Germany. These extermination squads, totaling some 3000 men, were to murder, without pity or remorse, every Jewish man, woman or child and every Gypsy they could lay their hands on. Other perceived opponents of the Hitler regime would suffer the same fate. EG daily reports were consolidated, marked "Top Secret" and then distributed in about 100 mimeographed copies to higher echelons of the Nazi and military hierarchy. The reports often contained the date, time, place and name of the unit commanders responsible for the killings. One of our researchers searching the remains of Gestapo headquarters in Berlin stumbled upon a nearly complete set of the EG reports. They showed beyond doubt that, over a two-year period, the EG had systematically slaughtered over a million helpless men, women and children.

 

I flew to Nuremberg, showed the discovery to General Taylor and urged that a new trial be prepared against the genocidal killers. Taylor recognized the importance of the evidence but expressed regret that all lawyers were already assigned and it was too late to organize new prosecutions. In exasperation, I offered to handle the prosecution myself - in addition to my other duties. Taylor smiled but agreed. I was promoted to Chief Prosecutor in the Nuremberg trial against the Einsatzgruppen. I scrounged three Associate Counsel from other cases and 30 days before trial made available to the 44 German defense lawyers every bit of evidence to be used at the trial. Relying on the official German documents, and without calling a single witness, the Prosecution rested its case in three days. All 22 defendants, including six SS Generals, were convicted of murdering over a million innocent people. The trial dragged on for about nine months while phony alibis of the defendants were systematically rebutted. The 13 death sentences were hailed as a great victory and the press called it "the biggest murder trial in history." I was then 27 years old. It was my first case.

 

It was clear to me that no punishment against 22 fanatic killers, no matter how severe, could ever compensate for the murder of over a million people slain because they did not share the race or creed of their executioners. If the trial was to have enduring significance it should articulate principles of international law that might prevent the repetition of such enormous crimes against humanity. That was the primary goal as I addressed the tribunal:

It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women and children. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man's right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.

 

After outlining the proof to be presented, I concluded:

The defendants in the dock were the cruel executioners, whose terror wrote the blackest page in human history. Death was their tool and life was their toy. If these men be immune, then law has lost its meaning and man must live in fear.

 

Little did I dream then, that my last sentence would resonate in the halls of the UN half a century later. In September 1997, in his annual report to the General Assembly and the Security Council, Professor Antonio Cassese, President of the International Tribunal for the Prosecution of Crimes in Former Yugoslavia, concluded his comprehensive presentation by quoting verbatim the warning I had articulated in September 1947. [7]

 

Compensating Victims of Crimes against Humanity

My life again took another unexpected turn when, in the summer of 1948, I was invited to come to Paris by the American Joint Distribution Committee, the largest Jewish relief organization assisting survivors of Nazi persecution. A new military government law allowed heirless and unclaimed property taken from Nazi victims to be retrieved by a charitable organization that would benefit survivors. [8] Of course, there was no precedent for such an undertaking and there was no money available to carry out the assignment. Although we wanted to return home, my wife and I decided that the chance to help the persecuted was a challenge not to be refused.

 

I designated myself the Director-General of the Jewish Restitution Successor Organization (JRSO), managed to borrow money from occupation funds, recruited staff and promptly proceeded to file claims for over 163,000 properties in the US Zone of Germany. German possessors adamantly refused to surrender their homes or businesses, arguing that they had paid a fair price or were bona fide purchasers who had improved the properties. Difficult legal issues had to be litigated through German agencies and courts and finally be resolved by an Allied Court of Restitution Appeals that was also set up in the Nuremberg courthouse.

 

In 1951, I joined a team negotiating a "reparations" agreement between West Germany, Israel and the world's largest Jewish organizations that were consolidated in a "Conference on Jewish material Claims Against Germany" (Claims Conference). After difficult negotiations in the Hague, Germany promised to compensate Nazi victims - Jews and non-Jews alike - for a complicated variety of losses. I set up an office in Bonn to work with legislators to be sure that Germany lived up to its promise. When the restitution and indemnification laws were enacted, every claim had to be verified by a complex administrative apparatus that put a strict burden of proof on every claimant. Jews were unwilling to turn to former Nazi lawyers for assistance. It was necessary to organize a non-profit United Restitution Organization (URO) to assist needy claimants. It was probably the biggest legal aid society in the world with a combined staff exceeding 1200 persons in 19 countries, including 250 screened German lawyers supervised by former Nazi victims.

 

Considering that there were no precedents for such programs and that Germany was totally impoverished, it is gratifying that so many Nazi victims have received some measure of recompense. To the survivors, of course, no payment will ever be adequate, but the more than 100 billion DM (about 60 billion dollars) already paid by the German government has made a significant difference in the lives of hundreds of thousands of persons, and the end is not yet in sight. (Nazi victims resident in communist countries, with which Germany had no diplomatic relations, received nothing.) In 1948, when I first started work on restitution of heirless property and in the following years when I pleaded for compensation and rehabilitation for survivors of persecution, I felt like a voice in the legal wilderness. I could not foresee that in 1998, in Rome, the overwhelming majority of states would affirm, in the statute of a new International Criminal Court, that victims of crimes against humanity were entitled to restitution, compensation and rehabilitation as a legal right. [9]

 

The anticipated European sojourn turned out to be a longer- than- expected honeymoon; our four children were born in Nuremberg. In 1956, I resigned my various posts in Germany but agreed to serve on a modest retainer as Advisor to the Claims Conference and URO. Back in New York I soon discovered that experience as a war crimes prosecutor and expert on restitution had little commercial appeal to large law firms, particularly since I would not accept fees from any concentration camp survivor. Telford Taylor had been in practice with James Landis, former Dean of the Harvard Law School, and when Landis died, Taylor invited me to take over the Landis desk. (Taylor and I had become fast friends, particularly after having to parachute out of his falling plane (together with our wives) over the ruins of Berlin in 1948.) Taylor had largely an appellate practice and devoted much of his considerable talents to writing many books that earned him recognition as a courageous champion of human rights. When he accepted a Professorship at Columbia University Law School, I began to reconsider my own future.

 

Pleading for Justice and Peace

By 1968, it seemed to me that the world was moving closer to another Holocaust. Our children had about completed their education and since we had always lived frugally and I had managed to save some money, I decided to devote most of my energies toward helping to create a more humane and peaceful world. I wrote a law review article focusing on the legality of the Vietnam War and warned: "The price for the absence of an accepted international penal court will continue to be paid in human blood." [10] In 1972, I called for "Compensating Victims of the Crimes of War". [11]

 

I managed to get accreditation with a non-governmental organization (NGO) which gave me access to UN libraries. Special committees had been wrangling about enforcing the Nuremberg principles. But some powerful nations argued that as long as there was no agreed definition of aggression -- there could be no criminal code and as long as there was no code, there was no need for a court to enforce it. To overcome the disingenuous barrier, I began to lobby for a definition of aggression - which the IMT had categorized as "the supreme international crime". I recalled Jackson's admonition that whatever grievances a nation might have, warfare was an illegal means for settling those grievances. I wrote articles, attended UN meetings in New York and Geneva, cornered delegates and proposed compromises. By 1974 the special committee was ready to agree upon a definition by consensus. I invited my wife to join me in the large conference hall to witness the historic event. We were the only people not being paid to be there.

 

The General Assembly approved the consensus definition on 14 December 1974. I promptly published a two-volume documentary history and analysis, Defining International Aggression- the Search for World Peace. [12] I followed that by another two volumes in 1980: An International Criminal Court - A Step Toward World Peace which included statutes drafted by UN committees and independent legal experts. [13] The criminal court book sold few copies and gathered dust on library shelves. I did not know that it would be much sought a decade later. I wrote another two-volumes, Enforcing International Law - A Way to World Peace. [14] Professor Louis B. Sohn of Harvard Law School, distinguished author of the famous World Peace Through World Law, wrote introductions. The six-volume series was reviewed by a leading scholar of international law, Professor Shabtai Rosenne, who concluded:

When the political atmosphere changes, as sooner or later it must, Ferencz's assiduous compilations will be the quarry out of which the new - or renewed - structure of international law and international relations can be hewed. [15]

 

In 1979, Harvard published Less Than Slaves which recounted how German industrialists denied liability for having worked concentration camp inmates to death. The award-winning book received rave reviews in the New York Times, was translated into German and Japanese and was made into a television documentary. [16] My Common Sense Guide to World Peace called upon leaders of the United States and the Soviet Union to reconcile their differences. [17] A publisher, Ken Keyes of Coos Bay, Oregon, offered to reproduce it in a million copies - providing there would be no profit to either him or me. What emerged was an outreach paperback, called Planethood, which stressed the need for planetary thinking. The book was not copyrighted and everyone was encouraged to duplicate it without obligation. Ken Keyes died in 1996, full of hope and optimism. It was not generally known that he was quadriplegic and could not move.

 

From around 1985 to 1996, I served as an Adjunct Professor at Pace Law School in White Plains, New York, teaching "The International Law of Peace". I established the Pace Peace Center with a network of peace groups throughout the world. Its goal was to carry out a vision expressed by Elihu Root and engraved above a portal at the Harvard Law School: "Make us effective for the cause of peace and justice and liberty in the world." My fund-raising efforts produced meager results and I concluded that it was not very productive for me to spend my time as a beggar. The Peace Center had always been located in my home and I remained the unpaid Executive Director assisted only by my unpaid wife.

 

Although my writings stressed that a rational legal order had to be built on clear laws, courts and enforcement, I realized that many additional components would also have to be put in place. My thoughts were spelled out in New Legal Foundations for Global Survival. [18] The 400-page study, with about 1000 footnotes, was intended as a blueprint that sketched the new institutions needed for a peaceful world: an improved UN, disarmament, an international military force, and enhanced social justice - economic, political and environmental. The book earned high praise, including an encouraging note from UN Secretary-General Kofi Annan. To make it more accessible, I donated 2000 paperback copies to the World Federalist Association in Washington on the understanding that all of the proceeds would be used for peace purposes.

 

I wrote countless articles, op-ed pieces and letters to editors urging readers to support a more humane and rational world order under law. There were many radio broadcasts, television appearances and lectures across the US and in other countries. To be sure, there were times when my pleas seemed like an exercise in futility. Some mocked me as a dreamer but I could not accept in silence the world of the "realists" in which millions of innocent people were murdered and continued to be killed or driven to despair in Korea, Vietnam, Cambodia, Iran, Iraq, the Middle-East, Africa, Latin America, Afghanistan and elsewhere while the world's leaders let it happen - to their everlasting shame!

 

Following Iraq's invasion of Kuwait in 1990, American, Soviet, British, French and other leaders warned that those responsible for the aggression, war crimes and crimes against humanity, such as the murder of their own Kurdish minorities, would be brought to justice. But, contrary to the Nuremberg mandate that only the guilty should be punished and only after a fair trial, the leaders of Iraq remained in power while the public was penalized by harsh sanctions imposed by the Security Council. I warned that unless Iraq's dictator Saddam Hussein was brought to trial, he would continue to thumb his nose at the world community. [19] It was not that nations lacked the authority or power to intervene - they lacked the political courage and the political will to conform to their professed principles.

 

The situation began to change after Yugoslavia split into competing ethnic factions that began to kill each other. Worldwide television broadcasts in 1992 vividly portrayed concentration camps in Bosnia and Serbia that were reminiscent of Buchenwald and Dachau. It was reliably reported that thousands of Muslim women had been systematically raped and then murdered as part of a program euphemistically called "ethnic cleansing". I resented the title—there is nothing clean about the filthy practice of mass rapes. In response to public outcries, especially from women, the Security Council, at long last, decided to use the rule of law as a weapon for peace.

 

Security Council Creates Criminal Tribunals

In February 1993, the Security Council called upon the Secretary-General to submit statutes for an International Criminal Court - and to have it ready within sixty days. Thanks to assiduous efforts of the Legal Division, it was done! [20] I happened to be visiting with the International Law Commission in Geneva when the statute for the new court was transmitted from New York. A kind staff member, apparently knowing of my 1980 volumes on the subject, handed me a copy, saying: "Here, this is your work." I was very touched. The International Criminal Tribunal for Crimes Committee in Former Yugoslavia (ICTY) came into existence on May 25, 1993. [21] It was the most important step forward in the evolution of international criminal law since the close of the Nuremberg trials.

 

Once the political will was aroused, it was possible for the Security Council to create an International Criminal Tribunal in very short order. The problems confronting the ICTY were much more difficult than those faced at Nuremberg. Victims will never rest until those primarily responsible for their suffering are brought to trial. Those who seek to trade justice for peace will have neither peace nor justice. I joined ICTY leaders in castigating the failure of the international community to seize persons in high position in the former Yugoslavia who had been publicly indicted for outrageous crimes. Unless the Security Council uses all necessary means to back the tribunal it has created, the Council will foul its own nest, undermine its own credibility and undercut the rule of law.

 

Under the competent leadership of President Antonio Cassese, who was succeeded as President by Judge Gabrielle Kirk McDonald, and the very able Chief Prosecutors Richard Goldstone and then Louise Arbour, the ICTY has earned the respect of all objective legal observers. They have adopted rules to assure fair trial for all accused - despite different legal systems, they have clarified the law and taken care to meet the special needs of rape victims. Despite its many travails (usual attributes of a new born babe) the tribunal has already created a record of competence and accomplishment for which those involved may well be proud.

 

In 1994, perhaps half-a-million Tutsi and their supporters were savagely slaughtered in Rwanda by the dominant Hutu government as part of a calculated program of genocide. Pictures of corpses hacked to death appeared on worldwide television. Again, reacting to public outrage, the Security Council acted quickly. A Statute for the International Criminal Tribunal for Rwanda (ICTR) was adopted at the end of 1994. [22] To save money, the ad hoc ICTR was linked to the ad hoc ICTY. Since Rwanda was largely devastated, the ICTR was located in Arusha in Tanzania. The problems faced by the ICTR were even greater than those confronted by the ICTY.

 

Under a new Tutsi government, local jails were soon jammed with thousands of confessed murderers. There were practically no lawyers and logistical support was non-existent. There was little in the Nuremberg experience that could help and I could offer little assistance to Rwanda's Minister of Justice Faustus Ntezelyayo or ICTR Chief Justice Laity Kama when I met them in Europe. Yet many of the difficulties have been overcome. Several international trials are now in progress in Arusha. 35 defendants, including high-ranking officials, are under indictment and in detention. Witnesses who dare not reveal their identity lest lives be endangered are being heard under special procedures that also protect the rights of the accused. In September 1998, the ICTR announced the first-ever judgment convicting a defendant for the crime of genocide. The landmark decision was hailed by the UN Secretary General as "A defining example of the ability of the United Nations to establish an effective legal order and the rule of law." [23]

 

A Permanent International Criminal Court

The two special tribunals created by the Security Council, met an important need by responding quickly to strong public demand that mass rapists and perpetrators of genocide be brought to justice. Instant worldwide communications brought an end to the age of impunity in which national, leaders could commit atrocious crimes and still be sure to escape punishment. Consideration was being given to creating another ad hoc tribunal to deal with the crimes against humanity committed during the terror reign of Pol Pot in Cambodia. But a string of temporary tribunals created after the event and with only limited jurisdiction to deal with a few particular crimes in certain areas during a limited time frame is a very primitive and unsatisfactory way to assure that universal justice will prevail. International law must be known in advance and apply equally to everyone. What is needed as a deterrent to international crimes is an impartial, competent and permanent international criminal tribunal.

 

In 1989, A.N.R. Robinson, Prime Minister of Trinidad and Tobago, unable to cope with drug-traffickers in his country, put the issue of an international criminal court back on the UN agenda. I first met Robinson in 1972 and I knew him to be a highly dedicated and able lawyer. At his suggestion, I discussed the problems with his UN Ambassador who lived near my home in New Rochelle. With the cold war over and the advent of many human rights organizations demanding justice, no nation dared speak out against a permanent criminal court. Addressing the General Assembly on September 22, 1997, US President William Clinton called for the establishment of a permanent international criminal court before the end of the century. Secretary-General Kofi Annan called such a court "the symbol of our highest hopes for this unity of peace and justice" [24]

 

Building on the work of the International Law Commission UN Preparatory Committees (PrepCom) began to work furiously to try to complete the statute for the new court. I attended PrepCom meetings as an observer, wrote countless articles and bombarded delegates and NGO's with papers to encourage progress. [25] I lectured in Paris and Bonn, did a television show in Holland and made many TV appearances. When the final negotiating session opened in Rome, I was among a handful of NGO's allowed to address the assembly for five minutes. I stressed that aggressive war was not a national right but an international crime. The only authorization I had came from my heart as I appealed to the delegates, in the name of the silent victims, to make the dream of a more humane world order under law come true. [26]

 

After intensive wrangling, compromises and a dramatic climax, the Rome Statute for an International Criminal Court received a wild ovation when it was adopted on July 17, 1998 by a vote of 120 in favor, seven against and 21 abstentions. Despite threats from US Senate and Pentagon representatives that sanctions would be imposed against any state that supported the court, the entire European community and many other American allies voted for it. Chairman Philippe Kirsch of Canada, called in at the last moment to replace the respected but ailing Dutch Chairman Adriaan Bos, quivered with emotion as he hailed the historical moment as one of great importance for the future of humankind. UN Secretary-General Annan flew to Rome and called the statute "a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law." [27] In a letter I received from A.N.R. Robinson, now President of Trinidad and Tobago, he wrote that he considered the establishment of the ICC to be the major achievement of his life. [28]

The United States, China, and a reluctant Israel were among the 7 states that voted against the Statute - each for different reasons. [29] The US was not willing to subject its military to the risk of trial by a foreign court. China, mired in old traditions, was unwilling to yield sovereign rights. Israel said it would have been honored to sign but reneged when words were inserted making population transfers a possible war crime. [30] US efforts to block the final vote suffered a resounding defeat. It was painful to me to hear the sustained rhythmic applause of defiant delegates who glared at the large US delegation as if to show their resentment against what many perceived as a superpower bully that wanted to be above the law.

 

Article 1 of the Rome Statute declared: "An International Criminal Court ("the Court") is hereby established." Unfortunately, the declaration that the Court was established on 17 July 1998 was a bit of an exaggeration. The statute could only go into force after it was ratified by at least 60 nations. [31] When that number would ratify was uncertain. Financing and other important transitional and administrative matters had to be left for later consideration. The Court would have jurisdiction over genocide, war crimes and crimes against humanity but could only to deal with the crime of aggression if, at a distant and uncertain future date, it would be possible to reach near-unanimous agreement on its definition. Some powerful states were eager to omit aggression from the courts jurisdiction altogether and it was included upon the insistence of a host of smaller nations.

 

In 1945, Justice Jackson, after analyzing emerging law, reported to President Truman: "It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal." [32] The "Crime against Peace" was enshrined as the primary target of the IMT Charter. Telford Taylor agreed that the most important crime was war-making itself. [33] I had appealed to US President Clinton and many officials of many nations and written a host of articles arguing that aggressive war must be curtailed by law. Failure to include aggression within the ICC's jurisdiction would have been a repudiation of Nuremberg's main achievement. Its omission might imply that aggressive war was not considered a punishable crime, the glorified "war-ethic" would be enhanced and the advocates of a world without war would be disabled.

 

Until the final session in Rome, it was uncertain whether aggression would be subject to the Court's jurisdiction at all. States that had power were unwilling to give it up and those without power seemed helpless. Since I had fought harder and longer than anyone I know to have aggression subject to punishment in an international court, I welcomed its inclusion on any basis. The fact that it was listed as one of the four core crimes was a demonstration of unrelenting human determination to move toward a more peaceful world. Its inclusion opened the possibility that upon further refection, nations will overcome their fears and understand that building on the cornerstone of the Nuremberg Charter - and not discarding it - remains the best way to protect human rights and the peace of people everywhere.

 

What I Have Learned

The world is filled with human suffering but it is also blessed by very many people who are determined to make it a better place for all and whose individual efforts made a difference. It was my privilege to know many such dedicated human beings. Only a few can be mentioned here. Raphael Lemkin, a Polish lawyer whose family was annihilated in the Holocaust invented the word "Genocide" that finally received condemnation as a universal crime. His contemporary, Rene Cassin, who fled with General de Gaulle when Hitler invaded Paris, composed the Universal Declaration of Human Rights - for which he earned a Nobel Prize. The world now celebrates the fiftieth centennial of his vision - even though many states that pay lip-service to the principles still ignore them in practice. Robert Muller, unpaid Chancellor of the first University for Peace, who served the UN from its beginning and who saw his birthplace in Alsace occupied by different conquerors, continues to this day to campaign vigorously for a planetary home for the whole human family. His spirituality, poetry, and flood of imaginative proposals for a global society are an inspiration. The numbers of such selfless human beings are countless.

 

My own efforts to curb crimes against humanity, to secure restitution for its victims and to prevent another Holocaust are part of a much broader panorama filled with individuals and organizations whose efforts and accomplishments move us toward a more humane planet. I think of Abdul Koroma of Sierra Leone, who as member of the International Law Commission pressed effectively for an International Criminal Court. When he became a Judge on the International Court of Justice in The Hague he struggled to outlaw nuclear weapons - a goal not yet achieved. I think of all the religious groups, NGO's and human rights activists and student organizations that have dared to challenge the existing inequities and to make sacrifices for the common cause of universal peace. They are in the forefront of an emerging world democracy where the human rights of all human beings will increasingly be respected.

 

Emma Bonino, European Commissioner for Human Rights, has been a catalyst and a dynamo in the search for a more humane world. Professor Cherif Bassiouni of de Paul University has published more and organized more conferences than anyone in his persistent efforts to create an International Criminal Court. As Chair of the drafting committee in Rome, he played a vital role. Unfortunately not all such unsung heroes and heroines can be named here but their friendship and impact is engraved in my heart. I rejoiced when, upon acceptance of the Statute in Rome, so many friends and delegates embraced each other in tearful celebration. I was rewarded to be among them.

 

The effort to carry the vision of Nuremberg to Rome and beyond reflects ancient divisions that still exist in human society today. There are well-intentioned persons who still believe that the only safe and realistic course to protect national interests is the law of force rather than the force of law. Such isolationist views kept the US out of the League of Nations, hobbled the UN Charter with unfair veto rights and causes the world community to waste its needed resources on an ever- spiraling and dangerous arms race. The medieval notion of absolute state sovereignty - the Divine right of kings and their male heirs to be above the law - is absolutely obsolete. Political concepts born in the 19th century cost hundreds of millions of lives and indescribable suffering in the 20th century. They are totally inadequate for the 21st century. In the nuclear, high-technology age, it is possible to destroy all life on this planet. The burden of the future is to prevent human annihilation by developing new ways of thinking and new institutions that are needed for a more lawful and humane international society.

 

Nuremberg was only the beginning of a process that sought to apply the rule of law to protect fundamental human rights of people everywhere. I witnessed incredible inhumanity. I peered into the eyes of remorseless murderers - many of them men of education and intelligence. How does one cope with the complete absence of shame or regret on the part of mass killers who remain convinced that they were pat of a master race and that what they did was necessary and right? Teaching tolerance, understanding and compassion in a world filled with nationalism, arrogance, hatred and fear is not a quick or easy task. Economic, social and religious disparities are still so great that rooting out causes of violent discontent remains our greatest challenge. My conclusion is that, despite all the difficulties, saving the world is a task worth pursuing and it is attainable. What is needed is knowledge, persistence, hope and the determination never to give up. Never! The lesson of my life is that progress is surely possible and the goal of a humane world under law can be reached - even if it takes awhile.

 

Benjamin B. Ferencz

Sept.23, 1998

 

[1] See Benjamin Ferencz, "On Criminal Responsibility", CCNY, Journal of Social Studies Spring 1940, p.20.

[2] S. Glueck, War Criminals, Their Prosecution and Punishment, 1944.

[3] Journal of Criminal Law and Criminology, Nov.-Dec. 1943, p.245.

[4] G/A Res. 95 (1), 11 Dec. 1946.

[5] 21 November 1945, Trial of the Major War Criminals before the IMT, 42 vols., 1947-1949; T. Taylor, The Anatomy of the Nuremberg Trials, Knopf, 1992.

[6] Trial of War Criminals before the Nuremberg Military Tribunals Under Control Council Law No. 10, 15 vols. "The Green Series."; Volumes, T. Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No.10, Washington DC 1949; B. Ferencz "Nuremberg Trial Procedure and the Rights of the Accused" Jour. of Criminal Law and Criminology, July-Aug. 1948 p.144.

[7] A/52/375, S/1997/729, 19 Sept. 1997 p.46.

[8] US Military Government Law No. 59, MG Law 59, Nov. 10, 1947.

[9] Rome Statute of the International Criminal Court, 17 July 1998, Art. 75.

[10] "War Crimes Law and the Vietnam War", American University Law Review, 17, No.3 (June 1968) p.403.at 423.

[11] Virginia Journal of International Law, 12, No.3, April, 1972, p. 343.

[12] Oceana Publications, Dobbs Ferry NY, 1975; See also Ferencz "The United Nations Consensus Definition of Aggression: Sieve or Substance" 10 Jour. of Int. Law and Economics, Aug-Dec.1975 p. 701.

[13] Oceana Publications, NY, 1980.

[14] Oceana, 1983.

[15] Shabtai Rosenne, "Enforcing International Law - a Review Article" Israel Yearbook on Human Rights, 14 (1984) p.274 at 282 . See also 78 AJIL 253 (1984).

[16] Less Than Slaves, Harvard University Press, 1979, Introduction by Telford Taylor.

[17] Oceana, Dobbs Ferry, NY, 1985, Introduction by Prof. Louis B. Sohn.

[18] Oceana, Dobbs Ferry, NY, 1994, Introduction by Prof. Louis B. Sohn.

[19] B. Ferencz "The Nuremberg Principles and the Gulf War" St. John's Law Review, 66, Fall 1992, p.711 at 727.

[20] Feb.22, 1993, S/RES/808.

[21] S/RES/827.

[22] S/RES/955.

[23] UN Press Release SG/SM/6687, L/2896, 2 Sept. 1998.

[24] Address to Int. Bar Assn, 12 June 1997.

[25] B. Ferencz, "International Criminal Courts: The Legacy of Nuremberg," Pace Int'l L. Rev., 10, Feb. 1998, p.201; "From Nuremberg to Rome", Development and Peace Foundation, Bonn Germany, Policy paper 8, 1998; "Make Law Not War", The World Today, London June 1998 p. 152.

[26] Press Release General Assembly L/2876, 16 June, 1998

[27] Press Release, 18 July 1998, L/ROM/23.

[28] Letter dated Sept.3, 1998

[29] Since the vote was not recorded, the identity of the other 4 negative voters is uncertain. It has been reported that they were Iraq, Libya, Qatar and Yemen. See John Washburn, "Tyrants Beware: The International Criminal Court is Born," The UNA/USA InterDependent, 24, Summer 1998, p.5.

[30] Statement by Eli Nathan, Head of the Israel Delegation, 17 July 1998

[31] Rome Statute, Art. 126

[32] Report to the President, June 6, 1945, International Conference on Military Trials (London 1945) p.52; reproduced in B. Ferencz, Defining International Aggression at p.370.

[33] Report, p. 64.

 

 

 

 

 

 

 

 

Getting Aggressive About Preventing Aggression

 

By Benjamin B. Ferencz

published: April 1999

source: Brown Journal Of World Affairs, Spring 1999, Brown University, Providence, RI

 

Ever since the Judgment at Nuremberg, it has been universally binding law that aggressive war is not a national right but an international crime. The most fundamental human right is to be able to live in peace. Yet, since 1945, an estimated 170 million people have been killed in armed conflicts but no one has been held criminally accountable for their deaths. It is high time for the world community to get aggressive about deterring, punishing and suppressing aggression.

 

FOUNDATION STONES

Over fifty years ago, the Charter for the International Military Tribunal (IMT) at Nuremberg declared that three categories of offenses could be punished by the international tribunal: Crimes against peace (aggression), crimes against humanity and war crimes. Aggression was described in the IMT's Judgment as "the supreme international crime" and it was affirmed that crimes are not instigated or committed by abstract entities but only by people. Any individual - regardless of rank or station - responsible for "planning, preparation, initiation or waging a war of aggression . . ." was guilty of a Crime against Peace. Before any accused person could be held criminally responsible, certain customary elements of criminality had to be present. The Charter stipulated that only those could be convicted who were proved to be "leaders, organizers, instigators and accomplices" to the crime. Persons occupying positions of such high responsibility were deemed to possess the required intent and capacity to be held accountable under ordinary principles of international and criminal law. (1)

Contrary to popular belief, the Charter was not an arbitrary assertion of power by vengeful victors. It was, as spelled out in detail by learned judges, an irrefutable expression of existing law that had been evolving over a long period. To be sure, the composition of the Tribunal was admittedly imperfect and its reach was not universal but that did not detract from the guilt of the defendants who were convicted or the fairness of the trials. Both Charter and Judgment were unanimously affirmed by the first General Assembly of the United Nations - reinforcing their standing as existing and binding international law. American prosecutors insisted that international law had to apply equally to everyone. "We must never forget", said Robert Jackson, Chief U.S. Prosecutor at the IMT, "that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."

 

The task of codifying the Nuremberg principles into a universally binding Code of Crimes against the Peace and Security of Mankind, as well as the creation of an International Criminal Court, fell to the United Nations where it was referred to various special committees. Despite political antagonisms between the Soviet Union and the United States and their respective allies, all seemed agreed that aggression had to be included in the criminal code but some argued that first it had to be more specifically defined. Until there was an agreed definition, no code would be acceptable and without a code there was no need for a criminal court. Thus definition, code and court were all linked - and gradually deposited in the deep freeze by the "cold-war". During years of fruitless discussion, Diplomats explained diplomatically: "The time is not yet ripe." Decision-makers of powerful nations seemed to prefer war to the uncertainties of international law.

 

As the cold-war thawed, a consensus definition of aggression was finally reached by the U.N. in 1974 - after about 40 years of intermittent haggling. The generic outline of acts that would constitute the crime was quite clear:

 

"Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State..."

The definition then listed a number of prohibited transgressions such as "invasion", "attack", "bombardment", "blockade" and similar acts that might qualify as aggression. The definition confirmed that "A war of aggression is a crime against international peace" but no provision was made to hold accountable those responsible for the crime. (3)

 

As in many U.N. agreements, the price for consensus was the insertion of artfully contrived phrases that parties might cite to their own advantage. Thus, it might be permissible, under certain circumstances, to use armed force when seeking "self-determination" or freedom from "alien domination". Until the causes of violent unrest could be ameliorated, no legal restraints would prove acceptable to peoples who believed desperately in the righteousness of their particular cause. To balance, or negate, the exculpating clauses, it was reconfirmed that only the Security Council was authorized to decide whether aggression by a State had occurred. The new definition could serve as a guide but it could neither enhance nor diminish the Council's Charter authority "to determine the existence of any threat to peace, breach of the peace, or act of aggression..." and to decide upon measures to restore peace. Since the Security Council was essentially a political body with no special competence to conduct criminal trials, the question of punishment remained unresolved. (4)

 

There was no international court in the world to try those who committed the most atrocious international crimes. Unless the perpetrators could be defeated and captured, aggression, genocide and crimes against humanity could be committed with impunity. The existence in future of a Nuremberg-type international tribunal made possible by the unconditional surrender of the wrongdoers seemed remote. The Statute of the International Court of Justice restricted the jurisdiction of that august body to disputes between consenting States. It could have no criminal jurisdiction without a difficult statutory amendment. The Security Council was authorized to establish "subsidiary organs" "for the performance of its functions" and presumably could create a new judicial agency to cope with individual crimes that threatened world peace. The fact that there existed no criminal court to cope with devastating international crimes revealed a glaring gap in the international legal order.

 

The situation began to change when, following the dissolution of the Soviet Union, Yugoslavia was fractured by rival ethnic groups declaring their independence as sovereign states. Worldwide television showed Nazi-type concentration camps in Bosnia and Serbia. U.N. investigators, led by Professor M. Cherif Bassiouni of DePaul University, confirmed that thousands of women, mostly Moslem, were being systematically raped and murdered. The outrages were so shocking that it was no longer possible for the world to do nothing. Once the political will to act was aroused, the Security Council was able to create the ad hoc International Criminal Tribunal for Former Yugoslavia (ICTY) in very short order. Highly competent prosecutors and judges were appointed with approval of the General Assembly. Despite inadequate support in arresting major offenders, the ICTY managed to overcome great administrative hurdles and established a fully functioning new criminal court in the Hague to bring before the bar of international justice some of those responsible for crimes against humanity and war crimes committed in former Yugoslavia after 1992. It was the first truly international criminal court since Nuremberg. (5)

 

In 1992 half-a-million men, women and children were butchered in genocidal slaughter by rival tribes in Rwanda. By 1994, the Security Council had created another ad hoc tribunal to bring responsible leaders to trial. (6) Neither the International Criminal Tribunal for Rwanda (ICTR) nor the ICTY were authorized to deal with the crime of aggression since that was not the burning issue that demanded immediate action. Nor could they deal with similar barbarities being committed in Burundi, Algeria, the Congo and other countries. Ad hoc courts, created after tragedies occurred, to punish a limited number of crimes committed in a limited area during a limited time, is not an ideal way to assure universal justice. It was becoming obvious that deterrence would be enhanced by an independent permanent court set up before outrageous offenses against human dignity are committed. The war crimes trials in Nuremberg, Tokyo and elsewhere, the consensus definition of aggression and the two ad hoc tribunals created by the Security Council were foundation stones illuminating the path toward a permanent International Criminal Court (ICC).

 

STEPPING FORWARD IN ROME

The subject of international criminal jurisdiction had been languishing on the U.N. agenda for almost fifty years while armed violence and human rights outrages continued to disgrace the human landscape. The availability of instantaneous reports of atrocities anywhere in the world sparked renewed demands by human rights activists for action to curb the publicized depravities. Small nations were apprehensive about tribunals created a la carte by the privileged States sitting on the Security Council. The General Assembly called for new committees to expedite the movement toward the creation of a permanent International Criminal Court. Prodded by the Assembly, the International Law Commission (ILC) finally concluded its 60-article draft Statute for an International Criminal Court in 1994. The proposed court would be competent to deal only with the three Nuremberg Charter crimes: aggression, crimes against humanity and war crimes, to which were added genocide and crimes prohibited by widely-accepted treaties prohibiting such crimes of international concern as torture, hostage-taking, aircraft hi-jacking, apartheid, drug trafficking and attacks on U.N. personnel. (7)

 

In 1996, the ILC (after 48 years) also completed its draft Code of Crimes against the Peace and Security of Mankind. The first crime listed was the Crime Against Peace.

 

"An individual, who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, shall be responsible for a crime of aggression."

It was agreed that aggression (without further definition) was universally recognized as a crime in international law and was therefore a "peremptory norm" which meant that it was fully binding on all states. All 34 ILC members concluded that failure to include it would be retrogressive fifty years after Nuremberg and that it could be left to practice to define the precise contours of the crime. Before any individual could be accused of aggression, however, it would be necessary for the Security Council to determine that aggression by a State had occurred since the UN. Charter specifically assigned that function to the Council and it had been accepted by all member States. (8)

 

Using the ILC drafts as a basis, new U.N. Preparatory Committees (PrepCom) put their shoulders to the wheel to comply with Assembly mandates calling for an ICC Statute by July 1998. Delegates from all over the world, shepherded by PrepCom Chairman Adriaan Bos of the Netherlands, after years of diligent efforts, produced a draft that incorporated the views of 185 nations with different legal traditions. As should have been expected, the text was covered by over a thousand brackets indicating divergent opinions on terminology and substance. (9) The most dramatic change was little noticed: no nation spoke out against the idea of having a permanent International Criminal Court. The time for an ICC was finally ripe!

 

A Diplomatic Conference in Rome, chaired by Phillipe Kirsch of Canada, who replaced the ailing Adriaan Bos, hammered away at the draft for five full weeks of intense debate. At the end, on July 17, 1998, nations from all over the world - by overwhelming majority - voted to create the first permanent International Criminal Court in human history. (10) Many delegates and representatives of non-governmental organizations wept with joy and it was generally hailed as a great event. U.N. Secretary-General Kofi Annan called it "a gift of hope to future generations". (11)

 

Not all nations shared the enthusiasm. To be sure, the draft was far from perfect. China remained steadfast in its focus on the need to protect its national sovereignty while India objected to provisions that failed to respect the equality of all states. Israel said it would have been honored to endorse the treaty but regrettably was unable to accept a last-minute insertion of a political clause that seemed to threaten its resettlement policies. A few Islamic States also found parts of the statute objectionable. Many provisions, such as the rules of procedure and financing for the court, would have to be worked out later. All eyes were focused on the United States, as it made an anticipated last-minute procedural motion that might have derailed the Statute. When the U.S. motion was defeated by an overwhelming vote of 120 to 7, it became clear that the Statute would be accepted by almost all participants. The hall burst into sustained wild applause.

 

On September 22, 1997, President William Clinton had personally come to the General Assembly to call for an ICC before the end of the century. His views had repeatedly been echoed by Madeleine Albright as America's representative at the U.N. and as Secretary of State. The U.S. had always been a strong supporter of the ad hoc tribunals for Yugoslavia and Rwanda and its strong delegation had worked actively to improve the wording of the Statute. Certainly the U.S. had a few substantive objections but these were not generally shared by others and did not seem to be irreconcilable. Many concessions had been made to accommodate U.S. concerns yet, at the end, American Ambassador David Scheffer was unable to go along with the views of most other States. Domestic political considerations certainly influenced American recalcitrance. (12).

 

The Chairman of the U.S. Senate Foreign Relations Committee, without waiting for the ICC treaty to be submitted for the needed Senates's advice and consent before the treaty could be ratified, defiantly declared that the treaty would be "dead on arrival." The Defense Department had also made plain that the Pentagon was strongly opposed to empowering any foreign court to try American nationals for war crimes. Conservatives with isolationist sentiments launched a vigorous legislative and media campaign to abort the ICC before it was born. These were among the concerns that encouraged the U.S. not to sign the accord - even though signature without ratification would have imposed no obligation other than a duty not to subvert the treaty. The President as Commander-in- Chief and Executive authorized to negotiate and sign treaties seemed to allow his Constitutional powers to be eroded to maintain political tranquility at home. (13)

 

Perhaps the most contentious issue faced by the delegates was the inclusion of the crime of aggression within the jurisdiction of the new criminal court. The American Prosecutors at Nuremberg, including U.S. Supreme Court Justice Robert M. Jackson and General (later Columbia Professor) Telford Taylor - both men of great legal ability and distinction - considered that the most important achievement of the Nuremberg trials was the outlawry of aggressive war. "It is high time", said Justice Jackson, in his report to the U.S. President on June 6, 1945, "that we act on the juridical principle that aggressive war-making is illegal and criminal." The conclusion that aggression was a punishable crime was not a legal doctrine invented at Nuremberg. It resulted from the gradual evolution of a long series of warnings, treaties and declarations following the first World War. After Hitler's aggressions and crimes against humanity during the second World War, with over 40 million killed, Jackson was convinced that civilization could not tolerate such wrongs being ignored because it could not survive their being repeated. (14)

 

Despite the clear views of the Nuremberg Charter and Judgment, the affirmation by the entire General Assembly, the opinions of Justice Jackson, Telford Taylor, other Nuremberg prosecutors and the entire International Law Commission, the United States was less than enthusiastic about including aggressive war as a crime within the jurisdiction of the ICC. The official U.S. position, stated long before the conference in Rome, was that "with respect to individual culpability the crime of aggression should be excluded..."at this stage." (15) Even when it became clear that most other nations favored the inclusion of aggressive war as a punishable crime, U.S. equivocation continued. Until the very end of the Rome conference it looked as though aggression would be dropped and not included in the statute of the ICC. Although the Rome Statute made plain that the ICC would not replace but only complement national courts that were unable or unwilling to punish the crimes, and that only future and not past crimes could be considered, career militarists disinclined to encourage new legal restraints on activities that some might consider criminal. They seamed to forget that the innocent need never fear the rule of law.

 

The main reasons given by states that objected to including aggression were that it seemed inadequately defined for inclusion in a criminal statute and it was feared that any role for the Security Council might destroy the independence of the court. The European Community and the Non-Aligned Movement, comprising about 30 states, were among those that insisted upon aggression being included. They were supported by "Like-minded States", an informal coalition of ICC supporters that finally included the United Kingdom. They favored a clarified definition yet one that would not detract from the Security Council's existing powers under the U.N. Charter. Germany pressed specific drafts along those lines. Arab states wanted the 1974 definition, with its exculpating clauses, retained. During the very last frenzied days of the conference there simply was not enough time to reconcile the different views. In a skillful move, the Chairman struck a compromise whereby irreconcilable issues were deferred for possible reconsideration at a future time when the Statute might be amended or reviewed. (16)

 

It thus came about that aggression was listed (along with genocide, crimes against humanity and war crimes) as one of the four "core crimes" within the ICC's jurisdiction but the Court would not be authorized to deal with it until a much later date after certain specified pre-conditions were first met. The Parties would have to agree upon a provision defining the crime and setting out the conditions under which the court could exercise its jurisdiction - consistent with the relevant provisions of the U.N. Charter. The Statute must first have entered into force - which meant that it had been ratified by at least 60 nations. Then at least seven more years had to expire - presumably to test how reliably the ICC was functioning . The new provision had then to be approved by 7/8ths of the Parties and a dissenting Party could immediately withdraw from the Statute. (17) It was a significant victory that the crime of aggression was finally included but it may have been illusory. To say that aggression - the supreme crime - may only be prosecuted under conditions that may never be met, is to mock the dead, imperil the present and threaten future generations yet unborn.

 

CONCLUSION

The Nuremberg Judgments, as unanimously approved by the United Nations, created a noble precedent and held forth an implied promise to all the world that "never again" would genocide, aggression, crimes against humanity, and war crimes go unpunished. That promise has yet to be fulfilled. The Rome Statute for an International Criminal Court, building on the foundation stones of the ad hoc tribunals for Yugoslavia and Rwanda, was a great step forward in an irreversible evolutionary process. But it did not go far enough. The medieval notion of absolute state sovereignty is absolutely obsolete in the new global age that appears on the horizon. In a democratic world, sovereignty belongs not to the State but to the people. The modern "high-tech" universe, saturated with weapons of mass destruction, cries out for a new way of thinking about how this planet is to be managed. New international "rules of the road" are being developed to benefit and protect people everywhere.

 

It is impossible to predict how long it will take for powerful nations to ratify any treaty that may curb outmoded notions of sovereign power. If the treaty route should fail or falter, the Security Council has demonstrated that it has the authority and ability to create new ad hoc tribunals to prosecute those whose deeds threaten world peace. Smaller nations fear that a politically oriented Security Council might jeopardize the independence of a permanent judiciary. To gain greater acceptance as the impartial guardian of universal security, the Council must reform itself to fulfill the role originally envisaged by the U.N. Charter. The unfair Charter provisions giving a veto right to only a few privileged Members can, and should, be allowed to lie dormant or be modified to reflect the Council's proper role as the protector of humanity Required changes can be made procedurally without having to traverse the laborious Charter-amendment route; all that is needed is the political will to do so. (18) Non-governmental organizations of all kinds - religious, political and humanitarian - that propelled the victory in Rome, have an important role to play in educating those who have the destiny of peoples in their power.

 

The Nuremberg Charter contained a completely adequate definition of aggression that proved acceptable to IMT Judges and many other experts. It is absurd to believe that skilled lawyers are unable to define the crime in a way that will be clear, binding and fair. All that is needed now is to delete the few ambiguous clauses that were inserted in the 1974 definition to achieve consensus. (19) Those provisions seemed to allow unrestrained violence to cope with political problems that, experience has shown, can only be resolved by peaceful means. The primary role of the Security Council is set by the U.N. Charter that binds all nations: to determine when aggression by a State has occurred. Only an independent court can determine the guilt or innocence of individual perpetrators. If the ICC proceeds without such a prior Council determination, a defendant accused of aggression may argue successfully that the Court is usurping the Council's prerogatives and by-passing the Charter. If the ICC finds the accused not guilty of aggression, it can and should release the prisoner - regardless of the Security Council determination. The nexus between Council and Court offers a balance that serves the cause of peace. Failure to punish aggression will allow perpetrators of the worst international crime to remain immune - and the world will continue to live in fear.

 

A new Preparatory Commission will soon begin to lay the ground for the effective functioning of the ICC and it should still be possible to reconcile views by consensus. (20) The basic question that must be answered soon is whether sovereign States are really willing to change traditional ways of thinking and acting in order to move toward a more secure and humane world. The enormous expenditures for weaponry of infinite destructive capacity and the appetite for violence must be curbed. War-making itself must be seen as unlawful. The war-ethic must be replaced by a peace-ethic and powerful nations must be willing to take a chance for peace by finally turning to law rather than war. Preventing aggression by punishing aggressors remains a primary goal of the international legal order so that all who dwell upon this planet may live in peace and human dignity.

 

Notes

1- Extracts of the Nuremberg Charter and Judgment can be found in B. Ferencz, Defining International Aggression: The Search for World Peace (Dobbs Ferry N.Y., Oceana Publ., 1975) Vol. 1, Documents 18, 19, 20 .

2- T. Taylor, The Anatomy of the Nuremberg Trials (N.Y., Knopf, 1992) p. 168.

3- General Assembly Res. 3314 (XXIX) 14 Dec. 1974.

4- B. Ferencz, "The United Nations Consensus Definition of Aggression: Sieve or Substance?", Journal of International Law and Economics, National Law Center, George Washington University 10 (Aug.-Dec.,1975) 701-724.

5- V. Morris and M. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, (N.Y. Transnational Pub.1995) 2 volumes; General Assembly Report A.53/219, 10 Aug.1998.

6- V. Morris and M. Scharf, The International Criminal Tribunal for Rwanda (N.Y. Transnational Pub, 1998) 2 volumes.

7- Report of the International Law Commission A/49/355, July, 1944.

8- Report of the International Law Commission A/51/10, July, 1996

9- L.Wexler, Ed. Observations on the Consolidated ICC Text Before the Final Session of the Preparatory Committee (Association Inernationale de Droit Penal, 1998).

10- Rome Statute of the International Criminal Court, A/Conf.183/9, 17 July 1998;

11-U.N. Press Release L/ROM/23, 18 July 1998.

12- See Prepared Statement of David J. Scheffer, U.S. Ambassador for War Crimes

to the Senate Committee on Foreign Relations, 23 July 1998

13- See many press reports from July 17 to July 31, 1998.

14- Ferencz, Aggression, supra n.1, Doc.18(b)

15- Letter from U.S. Department of State Deputy Legal Adviser dated June 19, 1996, in response to letter from the author to President Clinton of March 18, 1996.

16- U.N. Press Release L/ROM/22, 17 July 1998.

17-Rome Statute, Articles 5, 121, 123.

18- B. Ferencz, New Legal Foundations for Global Survival, (N.Y., Oceana, 1994.)

19- Ibid. Ferencz, Chap. 6.

20- U.N. Press Release GA/L/3103, 24 Nov. 1998

 

 

 

 

 

 

 

 

Benjamin Ferencz Reflects on The Rome Conference

 

By Benjamin B. Ferencz

published: July 1998

source: Web Posting

 

Dear Friends:

The first reason for this message is to convey sincere appreciation to all of you who contributed to the "establishment" in Rome of the first "permanent" International Criminal Court in human history. Bill Pace, Rik Panganiban and the entire crew of enthusiastic, able and dedicated young staffers of the Coalition, as well as all the NGOs. You are hereby entitled (by the authority not vested in me) to inform your grandchildren that you have made a significant contribution toward replacing the law of force by the force of law.

 

MY REACTION TO ROME

Since I have been striving for that goal for well over fifty years, and many have asked me for my reaction to the events in Rome, I will share with you some feelings and conclusions. The statute is much too long and is both remarkable and defective in many ways. No one could expect hundreds of lawyers coming from different traditions and cultures to agree on anything; yet they did agree on a great deal. The exhilaration that swept through the room at 8:50 p.m. on Friday, June 17, 1998, when Chairman Phillippe Kirsch announced that the Statute for the Court was adopted, was an unforgettable experience. Everyone knew that the statute was far from perfect yet the room was filled with wild applause and participants cried, hugged, kissed and congratulated each other. I saw the spontaneous outburst as a reflecting a deep-rooted yearning for the legal restraint of international violence.

 

I must confess that as an American who is eternally grateful to the United States I was saddened to see my country humiliated by the overwhelming vote against the U.S. motion that could have derailed the adoption at the last moment. It pained me when the applause continued unabated as nations showed their resentment against what they perceived to be bullying by an unreasonable and stubborn superpower. I felt sorry for David Scheffer whom I have known for many years as a fine and dedicated public servant.

 

I believe that a patriot is not one who says: "My country, right or wrong!" That can be a recipe for disaster - as Germans learned in World War II. The true patriot will support his country when it is right and seek to correct it when it has gone astray. I tried to explain to some delegates that the misguided U.S. policy reflected an attempt to accommodate those decent and concerned Americans who do not fully understand the needs of the future, who are isolationist in their sentiments and who fear change. But I wondered what happened to the vision, courage and leadership of a Woodrow Wilson, Roosevelt or Kennedy that once inspired the world.

 

AGGRESSION

I am particularly pleased that aggression was included as one of the four core-crimes. I am very mindful that the conditions under which the ICC can consider aggression have not yet been spelled out - and may never be met. Still, aggression is on the short list of crimes. Had it been omitted completely (as even some of my admired Human Rights groups were ready to accept), it would have undercut the main achievement of Nuremberg: making plain that aggressive war was not a national right but an international crime. I feared that an ICC built on a foundation from which the cornerstone was missing would topple. More important - it might appear that aggressive war was not considered a crime punishable under law, and thereby the war ethic (which spawns all human rights violations) would be strengthened and the outlawry of war-making itself - the "supreme international crime" would be repudiated.

 

REPARATION

Another provision that pleased me was Art. 73, requiring the Court to establish principles for restitution, compensation and rehabilitation for victims. I spent many years of my life helping to establish those principles in Germany when there were no precedents whatsoever and to implement them for victims of Nazi persecution. Now they are part of international law Thank you: Yael Danielli, Harris Schoenberg, Redress and all others who helped move the world in a more humane direction.

 

THE SOVEREIGNTY TRAP

Requiring different states to consent before a person accused of horrendous crimes - that invariably required the complicity of the state itself - is a major shortcoming. Other restraints on prosecution also reflect the continuing inability of states to accept a new way of thinking. Hundreds of millions of people died in the 20th century because nations were unable to recognize that we live in an interdependent world where the "sovereigns" are the people themselves and that all people are entitled to live in peace and human dignity under the protection of universal law. The ICC statute moves in that direction but not far enough. States have yet to conclude that they must accept binding rules to benefit everyone.

 

WHERE DO WE GO FROM HERE?

Much still remains to be done before the ICC becomes a reality. We must go on and on and on and never give up. I am now past 78 years of age and I can't go on much further. I have personally witnessed incredible inhumanity committed by human beings on other human beings and I have heard the cries of despair. I have known and convicted mass murderers. I have learned that it you try hard enough, and never give up, progress toward a more humane world order is possible - even if it takes a while. Following Nuremberg, Tokyo and the Tribunals for Yugoslavia and Rwanda, Rome was an important stepping stone but not the end of the road. I will continue to do what I can as long as I can but the burden must now pass to younger hands. The world will be what you make it! I wish you all the best of luck.

 

Sincerely,

Ben Ferencz

 

 

 

 

 

 

 

Needed: A World Criminal Court

 

By Benjamin B. Ferencz

published: June 1998

source: Neue Zuricher Zeitung, Germany - July 1998

 

 

June 29, 1998

Nations from all over the world are meeting in Rome to form a new legal institution. They are trying to establish a permanent International Criminal Court (ICC) to deter crimes that threaten peace and security. The conference of top diplomats will conclude on July 17, 1998, ending five years of intensive effort.

 

The fate of humankind may be affected by the outcome

The goal is not new. Over fifty years ago, the International Military Tribunal at Nuremberg - building on precedents that went back to the first World War - proclaimed that aggression, crimes against humanity and war crimes were punishable offenses for which responsible leaders would be held to account in a court of law. The United Nations unanimously agreed. There was an implied promise that genocide and massive violations of human rights would "Never Again" be tolerated. Yet, no permanent criminal court was ever created to carry out that pledge. It is appropriate to ask: why not, why now and will it really happen?

 

Why has it Taken So Long?

Soon after the United Nations was formed, committees were appointed to draft a Code of Crimes Against the Peace and Security of Mankind and prepare for an International Criminal Court. The Genocide Convention was adopted by the United Nations in 1948 but provisions for an ICC were deleted. A similar fate befell ICC texts in 1951 and 1953. Weak excuses - such as the inability to define aggression - were invented to justify inaction. Everyone knew that an international penal court was both desirable and feasible but the political will to accept international restraints on national behavior was lacking.

 

Aggression (defined by consensus in 1974), genocide, crimes against humanity and grave breaches of the rules of war (meticulously detailed by the International Committee of the Red Cross) continued unabated - in Korea, Vietnam, Cambodia, Iran, Iraq, and many other parts of the world. The lessons of Nuremberg seemed to have been forgotten. Perpetrators of horrendous crimes remained free, victims remained without redress and atrocities against countless numbers of innocent people were unrestrained - to the everlasting shame of the world community.

 

Professor Paul Guggenheim of Geneva correctly described "the dogma of sovereignty" as the main instrument of nationalism and imperialism that was blocking the necessary evolution of international law. As long as the powerful Soviet Union and the United States - and their allies - were engaged in a "cold-war" of conflicting ideologies, it was politically impossible to reach agreement on any major reforms of the existing international disorder. Mistrustful adversaries preferred to rely on the law of force rather than the force of law.

 

What Brought About a Change?

When, around 1987, Soviet leader Mikhail Gorbachev, ushered in a new wave of thinking, international tensions that had existed since the end of World War II began to recede. Heads of many nations began to speak of a "new world order." The end of the "cold war" made possible what had not been possible before. But it would take more than relaxation of political tensions to create an ICC.

 

The breakup of the Soviet Union and its satellites ignited new demands for national independence. When parts of former Yugoslavia declared their sovereignty in 1991, they sought to unify and expand their territories by brutal force - including mass rapes of thousands of women, murder, torture and incarceration reminiscent of Nazi genocide. The atrocities, confirmed by UN Commissions, were vividly portrayed on worldwide television. The communications revolution became an effective trumpet to arouse the public everywhere.

 

Outraged by the failure of the international community to prevent the atrocities committed in Yugoslavia, human rights advocates demanded that perpetrators be put on trial. There could be no peace without justice. Pressured by public opinion, the Security Council was able to move quickly. In 1993, it took only a few weeks to lay the foundation for the creation of the International Criminal Tribunal for Yugoslavia. The new tribunal, with its seat in the Hague, was the first international criminal court since Nuremberg. A similar tribunal was quickly created by the Security Council in 1994 after brutal civil war erupted in Rwanda and half-a-million people were butchered in genocidal tribal violence. The rule of law became an instrumentality to tamp down the fires of uncontrolled vengeance.

 

Establishing two new ad hoc criminal tribunals was no simple or easy matter. There were enormous problems: funding, staffing, training personnel and overcoming a host of unforeseen legal and logistical difficulties. Cooperation from some states was less than exemplary - allowing "big fish" to evade arrest. Nevertheless, both tribunals, through the diligence and integrity of their judges and prosecutors, earned worldwide respect. They demonstrated that - once the political will was aroused - it was possible to create fully functional and fair international criminal courts to bring major offenders before the bar of international justice.

 

The special courts to cope with crimes in Yugoslavia and Rwanda were important stepping stones after Nuremberg, but they did not go far enough. Temporary tribunals, created by the Security Council after the crimes are committed, and dealing only with limited offenses in a restricted area during a brief period are surely better than the alternative of doing nothing or allowing uncontrolled vigilantes to run rampant. But a string of belated ad hoc courts is hardly the most effective way to prevent crimes or ensure universal justice.

 

Nuremberg, never intended to be merely "victor's vengeance". U.S. Chief Prosecutor, Robert M. Jackson, proclaimed: "The law by which we judge these defendants today is the law by which history will judge us tomorrow." Nuremberg made clear that law must apply equally to everyone. The Diplomatic Conference now being held in the Italian capital will test whether nations are now ready to accept universal standards of morality and law designed to protect the peace and security of human beings everywhere. The international community is itself on trial in Rome.

 

Will It Really Happen?

The leaders of each nation must answer a fundamental question: What kind of a world do they really want? Some powerful and prosperous states, whose nationals are not the immediate victims of wars, killings, crimes against humanity, poverty, fear and other ills that plague this planet, may not be eager for change. They would do well to ponder the risks of inaction. Today we live in an interdependent world where no nation and no people can be secure until all are secure.

 

All states now agree that a permanent ICC is needed - but it must be "fair, efficient and effective". How to create such an institution - without restricting the vital political and security interests of the parties - is the problem. Reconciling the many differences will require great determination and great statesmanship.

Adherence to ancient concepts of state sovereignty permeate the negotiating process. Ever since Nuremberg, it has been indisputable that aggressive war - "the supreme international crime" - is a criminal act and not a national right. Yet, so far, there is no agreement that aggression - the root of the worst human rights violations - will be subject to the jurisdiction of the ICC. Although genocide, crimes against humanity and war crimes will be included, precisely what is covered by these "core crimes" is still being disputed. Some delegates insist that the prosecutor should have very restricted powers and require prior consent from different states or the Security Council before starting any investigation. Military branches of powerful governments are clearly reluctant to subject their acts to international legal scrutiny.

 

Compromise is vital. Some Decision-makers fail to realize that the organization of states designed in Westphalia in 1648 (based upon medieval notions of Divine Right of Kings and their first male heirs) may not be adequate for the cyberspace world of the 21st century. All nations must be willing to accept rules of the road that bind everyone and benefit everyone. The true sovereigns of today are the people themselves and they deserve to be protected under the mantle of enforceable international law.

 

There is no valid reason for any law-abiding or powerful state to fear the outcome of the Rome Conference. Lacking any independent enforcement mechanism or funding, the ICC will remain dependent upon major powers for its success - despite the judicial independence of qualified judges and prosecutors. The international court will only be authorized to act when, and if, national jurisdictions are unable or unwilling to give the accused a fair trial. What is being negotiated is a treaty, and treaties bind only those who ratify it- often subject to special "understandings". No treaty can bind the United States, for example, without the consent of two-thirds of the Senate.

 

No criminal statute can diminish, or increase, the vested rights of the Security Council under the UN Charter. Whether the United States will back down from its insistence upon effective controls over all prosecutions by the Council, whether China will be ready to yield some of its sovereignty, whether India will be flexible in its demand for complete equality, whether Pakistan will be more accommodating, and whether bickering over non-essentials will be replaced by constructive compromise remains to be seen.

 

No doubt, significant progress will be made in Rome toward a more humane world order under law. Norms will have been clarified, divergent positions of states articulated, and agreement reached on many fundamental positions. States will sign a Final Act summarizing their diligent efforts and it will be left to the General Assembly to decide what happens next. Hopefully, Decision-makers in Rome will care enough and dare enough to build on the Nuremberg precedents and take another important step forward on behalf of humankind.

 

Benjamin B. Ferencz

 

 

 

 

 

 

 

From Nuremberg to Rome: The Prosecution of International Crimes

 

By Benjamin B. Ferencz

published: May 1998

source: The Development and Peace Foundation, Bonn, Germany, May 1998

 

A Brief Introduction

Prosecuting crimes against peace and humanity was not invented at Nuremberg in 1945. Since ancient days, the legality of war itself and how wars were waged had been debated by renowned scholars from Plato to Grotius. Over two hundred years ago, Immanuel Kant's Zum Ewigen Frieden, called for the protection of peace and human rights through the rule of international law. Following the horrors of the Second World War, the trials at Nuremberg reflected the desire of people everywhere for a more peaceful and humane world. When, in 1991 and 1994, ethnic and political violence erupted into genocidal acts and massive crimes against humanity in former Yugoslavia and Rwanda, the United Nations Security Council quickly created special tribunals to bring leading wrongdoers to justice. Another significant step in replacing the law of force by the force of law may be taken in Rome in the summer of 1998. Nations are convening to lay the foundation for a permanent international criminal court.

 

The first major effort to curb war-related crimes by international law arose after World War I. In 1919, a commission - appointed by the victors - concluded: "All persons belonging to enemy countries, however high their position...who have been guilty of offenses against the laws and customs of war or the laws of humanity are liable to criminal prosecution." To avoid allegations that the enemy was being subjected to ex post facto law, the German Kaiser was not charged with the crime of aggression since no sovereign had ever before been brought to trial for making war. Instead, the Treaty of Versailles provided that Wilhelm II would be tried by an Allied court for "a supreme offense against international morality and the sanctity of treaties." Lesser leaders, accused of various atrocities, were also to be handed over for trial.

 

Germany promptly denounced the treaty as a Diktat. The Kaiser found refuge in Holland which refused to extradite him, noting that there existed no international criminal tribunal competent to try a head of state. The frustrated Allied Commissioners recommended that German aggression be formally condemned and that "for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law." Some German officers accused of atrocities were eventually brought to trial by the German Supreme Court which handed down a few light sentences. The inability to bring to court those primarily responsible for war and its atrocities emphasized the need to create a more effective system of international criminal justice.

In 1927, the League of Nations declared that "a war of aggression can never serve as the means of settling international disputes and is, in consequence, an international crime." In 1928, the Kellogg Pact, renounced war as an instrument of national policy and a Pan-American Conference declared a war of aggression to be "a crime against mankind". But nothing was done to create a court to punish violators. Japan invaded Manchuria in 1931 and Mussolini brazenly seized Ethiopia. In 1935, following the assassination in Marseilles of King Alexander of Yugoslavia, the outraged League appointed a committee to draft a convention for the repression of such terrorist acts. The committee appended a complete text - about five pages long - for an International Criminal Court. No nation was willing to accept it. Humankind would pay dearly for the indecision of the decision-makers.

 

Hitler began the German march of conquest over Europe. Behind the Blitzkrieg of the German tanks came the Einsatzgruppen to murder without pity or remorse every Jewish man woman or child, every Gypsy or perceived adversary they could catch. Prisoners of war were executed or starved to death, millions of civilians were forced into slave labor, while those unable to work were simply annihilated in gas chambers and concentration camps. Japanese troops committed similar crimes in areas they occupied. Repeated Allied warnings that those responsible for atrocities would be held to account went unheeded. The British proposed that, when the war was won, prominent Nazis be taken out and simply executed. It could have come as a relief but not as a surprise when defeated German and Japanese leaders found themselves in the dock to answer for their foul deeds in a court of law.

 

Nuremberg and Other Trials

Three months after the end of World War II, culminating six-weeks of intensive negotiations in London, the United States, Great Britain, the Soviet Union and France, signed an agreement creating the International Military Tribunal (IMT) for the Prosecution and Punishment of the Major War Criminals of the European Axis. Only three crimes for which there would be individual responsibility were to be within the jurisdiction of the court:

 

1- CRIMES AGAINST PEACE (planning and waging aggressive war);

2- WAR CRIMES (prohibited by custom and Hague Conventions) and

3- CRIMES AGAINST HUMANITY (such as genocide and similar persecutions against civilian populations).

 

Only leaders and organizers or instigators who conspired to commit the crimes would be held responsible by the IMT. Superior orders would be no defense but could be considered in mitigation of punishment. Every provision of the 30-articles was carefully designed to assure a fair trial for the accused. It was the first such tribunal in human history.

 

Twenty-four major Nazi war criminals were placed on trial. The Chief Prosecutor for the United States, and the principal architect of the IMT Charter, was Robert H. Jackson, on leave from the U.S. Supreme Court. "We must never forget", he said, "that the record on which we judge these defendants is the record on which history will judge us tomorrow." Defendants were represented by competent counsel of their own choice - paid for by the Allies. The judges from the victor states regretted that there were no real neutrals to sit in judgment but vengeance was never their goal. The trial, in four languages, was open to the public so that all could see that it was conducted to "commend itself to posterity as fulfilling humanity's aspirations to do justice". Nazi leaders received a fair trial the likes of which they never gave to anyone. Several defendants were acquitted. Submitting captive enemies to the judgment of the law was, as Jackson said, "one of the most significant tributes that Power has ever paid to Reason."

 

The Judgment rendered by renowned Allied jurists was clear, comprehensive and persuasive. The judges pointed to the many treaties and international declarations that made aggressive war an illegal act ("the supreme international crime") for which even a head of state would be accountable. It traced the origins of crimes against humanity. The judges held that the Charter was not ex post facto law designed to punish Germans only. "The law is not static" said the Tribunal, "but by continued adaptation follows the needs of a changing world." True, by confirming that aggressive war and crimes against humanity were violations of established legal norms, the IMT was taking a step forward, but its judgment was based on evolving common law and it was a step long overdue. Both the Charter and Judgment of the IMT were unanimously affirmed by the first General Assembly of the United Nations. Its principles were thereby confirmed as valid expressions of binding international law.

 

Crimes of the enormity revealed by IMT required collaboration from many segments of German society but the four occupying powers were unable to agree upon additional joint trials. Instead, they enacted Control Council Law No. 10, - very similar to the IMT Charter - authorizing unilateral trials in their respective zones of occupation. The United States decided to continue with a dozen subsequent proceedings in the same courthouse at Nuremberg. The Chief of Counsel was General Telford Taylor (Harvard Law graduate and later Professor at Columbia and Yeshiva University). The accused included medical doctors responsible for illegal human experiments, jurists who distorted law to achieve Nazi goals, high-ranking military officers responsible for atrocities, Foreign Ministry officials who helped plan aggression and industrialists who seized foreign properties and worked concentration camp inmates to death. 177 defendants were thus put on trial, of whom 35 were acquitted. These twelve trials, with only American judges on the bench, further clarified international law and made plain (contrary to the view of IMT) that crimes against humanity could be punished even if committed in peacetime. The law had taken another step forward to protect humankind.

 

During the same period, the U.S. Army, applying the rules of war, put on trial in the liberated concentration camp at Dachau a number of captured concentration camp commanders and those who had murdered allied troops. Trials also took place in the other zones of occupied Germany as well as in countries that had been overrun by the German armies. These were basically consistent with the Nuremberg precedents and added to the growing body of international criminal law. General Douglas MacArthur, Supreme Commander for the Allied Powers in the Far East, guided by the IMT Charter, appointed tribunals to try Japanese leaders accused of aggression, war crimes and crimes against humanity. Many Japanese viewed these trials as hypocritical and more vengeance than justice - arguing that America's nuclear bombing of Hiroshima was a crime against humanity. A dissenting opinion by Tokyo Judge Pal of India (who would have acquitted all twenty-eight defendants) maintained that all nations must share some responsibility for war and its inevitable consequences.

 

The United Nations Steps In

Further elaboration of norms to govern civilized society was taken up by the United Nations. The UN Charter expressed the determination of "We the peoples" to "save succeeding generations from the scourge of war". Its preamble stressed the need for justice and respect for international law. Shocked by the enormity of Nazi crimes revealed at Nuremberg, the Assembly, after affirming the validity of the Nuremberg Charter and Judgment, called for a convention to punish the crime of Genocide. A draft Convention was quickly prepared in 1947 and the Secretariat, with the help of experts (Pella, de Vabres and Lemkin) appended two versions of proposed statutes for An International Criminal Court. Appendix I contained 43 articles and Appendix II had only 36.. But nations were still not ready. How Genocide was to be punished was left to such international penal tribunal as States might later accept.

 

UN committees were appointed to draft a Code of Crimes against the Peace and Security of Mankind as well as a new statute for an International Criminal Court to enforce the Code. After long debates, a statute for the court was submitted in 1951 (55 articles) and revised in 1953 (54 articles). But cold-war rivalries, coupled with mistrust and reluctance to yield sovereign rights to any new international institution, blocked effective action. It was argued that until there was agreement on a Code of Crimes there was no need for a criminal court to enforce it. Until there was agreement on the definition of aggression - "the supreme international crime" - there could be no Code. The Code, the definition of aggression and the Court were thus linked and conveniently put into the deep freeze by the cold-war. The UN was stymied and the world went back to killing as usual.

 

In 1974 - with a thaw in US-Soviet relations - it was possible, with General Assembly approval, to reach a consensus definition of the crime of aggression. It confirmed (as prescribed by the U.N. Charter) that only the Security Council had authority to determine when aggression by a state had occurred. The definition contained illustrations of aggressive acts but it allowed considerable flexibility in deciding whether such acts, or others, were criminal. Once the definitional hurdle had been overcome, the Assembly asked the International Law Commission to resume work on drafting the Code of Crimes and the statute for an International Criminal Court. In the meanwhile, many areas of the world became killing fields where millions of innocent and helpless people were victimized by aggression and outrageous crimes against humanity which the international community failed to prevent or punish - to their everlasting shame!

The situation changed dramatically when reliable television reports streaming out of former Yugoslavia around 1992 vividly portrayed starved and beaten prisoners and described mass rapes of thousands of Muslim women by Serbian forces determined to "cleanse" the area for their own national hegemony. The Security Council established a Commission , headed by legal expert Professor M. Cherif Bassiouni from dePaul University, to investigate. He confirmed and documented massive atrocities reminiscent of the Holocaust and Auschwitz. The time had finally come - for the first time since Nuremberg - to reach for the rule of international law to punish shocking international crimes that could no longer be ignored.

 

The Security Council Acts - New Ad Hoc Tribunals

In response to cries of public outrage - particularly by women everywhere - the somnolent political will of powerful nations was aroused. On 22 February 1993, the Security Council (Res. 808) called upon the Secretary-General of the UN to submit statutes for an International Criminal Tribunal within sixty days. It was done! The statute prepared by the UN Office of Legal Affairs contained 34 articles that spelled out the legal basis and competence of the court, its organization and procedures, the assistance it was to receive from States and similar essentials (S/25704, 3 May 1993). The jurisdiction of the proposed tribunal was limited to serious violations of international humanitarian law (Genocide, Crimes against Humanity, and Grave Breaches of the Geneva Convention of 1949 and customary war crimes) committed in the former Yugoslavia since 1991.

 

In due course the new criminal court, with its seat in The Hague, was born. It was not an easy birth. There were problems of funding, recruiting prosecutors, judges and defense counsel, training administrators, investigators and translators, overcoming difficult logistical, legal and procedural hurdles and obtaining cooperation from states before any indictments could be drawn, suspects arrested and trials begun. But it was done! The eleven Judges from various regions of the world (including Gabrielle Kirk McDonald of Texas) agreed upon detailed rules for fair trial. Defense lawyers and Prosecutors (led initially by Richard Goldstone of South Africa's Supreme Court and later by Louise Arbour of Canada) earned respect for their competence and dedication. Tribunal decisions, including the appeals, were thoroughly researched and persuasive.

 

At the outset, the number of cases was very limited but by 1998 there were two convictions (Dusko Tadic sentenced to 20 years) and four trials were in progress simultaneously. Two new courtrooms were being built with donations from Britain, Netherlands and the US By 1998, 79 suspects were publicly indicted and the number actually in custody passed 24 and was increasing. Some accused were surrendering voluntarily. Witness protection programs, especially for women, were in place. The staff grew to over 400 and the UN approved annual budget approached $70 million with 22 states donating over $9 million. A few years after the Tribunal was established, its first President, highly-esteemed Professor Antonio Cassese, was able to report to the UN that the International Criminal Tribunal for the former Yugoslavia (ICTY) was "a vibrant, fully functioning judicial body."

 

Every newborn child must crawl before it can walk. The new ICTY was not free of problems. Cooperation by states like Serbia, (as well as Croatia and Bosnia) whose nationals were indicted and whose Constitution prohibited their extradition. was less than exemplary. The Court had absolutely no enforcement mechanism of its own and the failure of States to arrest indicted suspects, like former Bosnian Serb political leader Radovan Karadzic and Serbian Army Commander Radko Mladic, charged with massive war crimes and crimes against humanity, diminished respect for both the Security Council and its ad hoc criminal tribunal. It is expected that the hesitation to use UN forces to arrest wanted suspects will be overcome when the political situation is further stabilized and risks are reduced. David Scheffer, special U.S. Ambassador for War Crimes, recently warned: "their day before the Yugoslav Tribunal will come."

In 1994, a brutal ethnic war erupted in Rwanda. A Security Council investigative commission confirmed that perhaps half-a-million Tutsi - men women and children - and their supporters were savagely massacred by being hacked to pieces by machetes or bludgeoned to death by the dominant Hutu tribe. Hundreds of thousands fled in terror to neighboring countries where brutalities fired by vengeance continued in refugee camps until the Tutsi returned to power. The Security Council again responded to public outrage by quickly creating another criminal court to bring mass murderers to justice and help restore peace. The International Criminal Tribunal for Rwanda (ICTR) was established at the end of 1994 (Res.955) and followed the pattern of the ICTY. An international war of aggression was not an issue and only human rights crimes were made punishable. Only a few specified crimes, committed within the defined territory, during the year 1994, could be prosecuted. The statute made explicit that Genocide, war crimes and crimes against humanity would not be tolerated even if the conflict was national and not international.

 

To save money and personnel , the ICTY and ICTR shared the same Chief Prosecutor and the appellate chambers in the Hague. Because Rwanda was devastated by the civil war, the ICTR was located in Arusha, in Tanzania. Administrative problems were enormous. Over 100,000 Hutus were jammed into local jails and charged by the new Tutsi government with genocide, mass rape or similar atrocities. There were few lawyers or judges left in the country. Tutsi who had seen their families slaughtered demanded that Hutu murderers be put to death. But the Security Council statutes for both ad hoc tribunals - following European human rights conventions - outlawed the death penalty. Lesser criminals might face death imposed by summary national courts in Rwanda while the "big fish" under arrest in the Hague for planning the genocide might escape with only imprisonment. Despite such enormous political and logistical obstacles, progress is slowly being made. The government of Rwanda is determined to overcome the difficulties and strive for reconciliation by seeking peace and justice through the rule of law.

 

Similar atrocities have continued in many other parts of the world. Ad hoc tribunals to punish perpetrators of massive crimes are surely better than doing nothing or allowing vengeance to run rampant. But a string of special courts created by the Security Council after the event and a la carte to try offenders for a limited number of crimes committed during a limited time in a limited area is hardly the most effective way to establish universal justice. All states now seem to recognize that what is required is a fair and impartial permanent International Criminal Court to condemn major crimes that may at any time threaten the peace and security of human beings everywhere. It is the next logical step in the evolution of international criminal law and the greatest challenge now facing the international legal community.

 

A Permanent International Criminal Court on the Horizon

(A) Background

The initiative for putting an International Criminal Court (ICC) back on the UN agenda came in 1989 when Prime Minister A.N.R. Robinson of Trinidad and Tobago called for help in curbing international drug-traffickers. The International Law Commission (ILC), 34 legal experts from diverse regions, prodded by the General Assembly, completed its 60-article Draft Statute for an International Criminal Court in 1994. UN committees began to review the ILC proposals. The ILC Draft Code of Offenses against the Peace and Security of Mankind was submitted in 1996. With these stated hurdles overcome, and political tensions between the super-powers abated, the time seemed ripe to move ahead in closing a glaring gap in the international legal order.

Beginning in 1996, a UN "Preparatory Committee" (PrepCom), under the skillful leadership of Adriaan Bos of the Netherlands, held half-a dozen lengthy sessions at the UN trying to cobble together an accord. Secretary-General Kofi Annan (echoing sentiments of his predecessor Boutros-Ghali,) called the ICC "the symbol of our highest hopes for this unity of peace and justice." US President Clinton, declared to the General Assembly at the end of 1997: "Before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law." Everyone seemed agreed that an ICC would be needed and activated only when, and if, national courts were unable or unwilling to put perpetrators on trial. The ICC had to be established by a treaty open to all states, independent and competent to deal only with the most serious international crimes. It also had to be "fair, efficient and effective."

Translating these shared sentiments into a coherent text acceptable to lawyers representing 185 nations with different legal and social systems - and possibly with different degrees of commitment to the goals - was a test of their ingenuity and dedication. Intensive efforts by several Working Groups sought consensus on each article of the proposed statute: how to establish the court; the crimes to be tried by the ICC and precisely how those crimes were to be defined; the principles of criminal law to be applied; the composition and administration of the court; the powers of the Prosecutor to investigate and inaugurate prosecutions; applicable rules of evidence; penalties; procedures for appeal and review; enforcement; and how the entire package was finally to be put into effect. When the PrepCom concluded its work on April 3, 1998, much progress had been made but many differences, indicated by squared brackets around alternative texts, remained unresolved. The PrepCom Report will go to the Diplomatic Conference that will convene in Rome from 15 June to 17 July 1998 which will be challenged to reconcile many divergent views so that nations may move toward an improved world legal order.

 

(B) Major Points of Concern

1- Selecting and Defining the Crimes to be Dealt with by the ICC

There seemed to be general agreement that the fundamental "core crimes" of genocide, war crimes and crimes against humanity had to be within the court's competence. It was doubtful whether crimes prohibited by specified treaties to curb atrocities, terrorist acts, crimes against UN personnel and drug trafficking should be included since the treaties already contained adequate punishment possibilities. Norway proposed that additional offenses could be added later. "Treaty Crimes" remained as bracketed options. The precise definition of the crimes, except for genocide, needed further discussion.

 

Most states (including France, Germany, Italy, Egypt, Denmark, a host of small countries, the ILC and many other legal experts,) insisted that aggression had to be included lest the omission of the "supreme crime" be seen as a retrogressive repudiation of Nuremberg and a quiet reversal of the prevailing renunciation of war itself. Some (including the US, UK Russia, China and Pakistan) argued that aggression had not been adequately defined for a criminal statute and that its inclusion would involve the Security Council and thereby destroy the independence of the court. The ILC draft stipulated that no individual could be tried for aggression until the Council first determined that aggression by a State had taken place. Although this affirmation of the Council's responsibility merely reconfirmed the existing duty of the Security Council (as laid down in the UN Charter and other instruments,) it caused considerable concern. Germany, led by Hans-Peter Kaul, pushed for a compromise definition that combined portions of the Nuremberg Charter with extracts from the UN consensus definition of 1974. It was further suggested that a "sweetener" could specifically reaffirm ICC's independence in determining guilt or innocence of any individual suspect.

Defining crimes against humanity (taken from the Nuremberg Charter) raised a few questions, but not nearly as many as elucidating all war crimes. The International Committee of the Red Cross, had been trying to prevent war crimes for over 130 years. It listed about 50 different war crimes and submitted a commentary of 35 pages to explain them. Women's groups in particular pressed to add and define specific "gender crimes" (such as rape, forced prostitution and sterilization) and prohibitions against using children in combat. Many delegates felt that a shorter listing, or incorporating existing Geneva Conventions by reference, might suffice.

 

2- Procedural Problems

All agreed that every accused person was entitled to a fair trial, to be presumed innocent, protected from double jeopardy and be defended by competent Counsel. But there were varied views about how these undisputed principles could best be expressed. Chair of the Working Group on Procedures, Silvia Fernandez de Guremendi of Argentina, was quite successful in coaxing a consensus on clauses detailing how investigations, prosecutions, trial and appeals were to be conducted. Various formulations were presented regarding rules of evidence, penalties -including restitution, compensation and rehabilitation of victims - and indemnities to persons wrongfully detained. Rolf Fife of Norway headed the Group that defined the obligations of States to cooperate, render judicial assistance and give effect to judgments of the ICC. Consideration was given to relegating all procedural matters to an annex and authorizing the Judges to establish their own rules for the daily functioning of the Court. It was generally agreed that an Assembly of those States that ratified the Convention would supervise the administrative functioning of the ICC.

 

3- Are Sovereign States Ready to Accept the Rule of Law?

The fundamental question to be decided in the capitals of participating States is whether they are ready to apply criminal law to enforce norms of international behavior designed to curb worldwide violence and to protect universal human rights. Many countries still cling to antiquated notions that (by Divine right) sovereigns (and their first male heir) are above the law and that the organization of independent national states formed at Westphalia 350 years ago is adequate for the electronically interconnected and interdependent world of the 21st century.

 

Sovereign States should realize that there is no danger in voluntarily accepting certain restraints for the common good. A treaty is not retroactive and binds only those governments that have ratified it in accordance with their constitutional processes. In the United States that means that two-thirds of the Senators must agree. They often add their own reservations, interpretations and and understandings. It took the US 40 years to ratify the Genocide Convention. Nations should not wait for new Holocausts to shake them from their lethargy. If differences are to be overcome, States must finally summon the political courage to accept universal "rules of the road" that bind everyone for the benefit of everyone. The evolutionary process of international law cries out for recognition that the only true sovereigns of the 21st century are "We, the peoples...".

 

The hesitation of powerful States to surrender what they perceive as entrenched and vital sovereign rights appears throughout the draft statute: whether States could "opt-in or opt-out" of giving the ICC jurisdiction over some of the "core crimes", whether there would be ex officio powers of the Prosecutor to investigate and indict suspects or whether he, or she, would first have seek approval from a pre-trial Chamber or even get advance authorization from the Security Council; or obtain States consent before their nationals or those in their custody could be tried, and whether States could refuse to cooperate or enforce decisions of the ICC.

 

It was strongly argued that by ratifying the ICC Treaty each State automatically accepts the inherent jurisdiction of the Court with respect to all of the approved core crimes. Since genocide, aggression and crimes against humanity are almost invariably committed by or with the connivance of a State, one can hardly expect a State to try itself. No State can immunize itself and its leaders simply by declaring that it chooses not to be bound by common international law. The French compromise to have the Prosecutor controlled by a supervisory Pre-Trial Chamber should protect against prosecutorial abuse.

 

The United States argument that no case can be tried by the ICC without prior Security Council permission lest a peace process be disturbed, goes too far. It would give the United states a veto over any action by the ICC - which may be good politics back home but not rationally justifiable. A Singapore compromise would allow the ICC to proceed at its discretion but the Security Council could later request the Prosecutor to suspend action for a limited time if the Council agreed that it was desirable. The powers of the Security Council (with its unfair veto provisions) are prescribed in the UN Charter and - for better or for worse - cannot be increased or diminished without Charter amendment. Insertion of clauses like "as determined by the Security Council" emphasizes Council controls but throws salt into old wounds without altering existing Council powers in any way.

 

The situation is different regarding the crime of aggression. Exclusive authority to determine whether an act of aggression by a State has occurred is vested in the Security Council by Article 39 of the UN Charter and confirmed in the consensus definition and other UN Declarations. Neither the International Court of Justice nor the Security Council has any authority to try any individual for anything. No person can be successfully prosecuted for aggression by the ICC without a prior Security Council determination that aggression by a State has occurred. Without such a finding, a defendant accused of planning and waging aggressive war could argue that the ICC was usurping and by-passing the Council's UN Charter function and thereby exceeding its own authority. To balance the argument that dependence on the Council destroys the independence of the ICC, it may be noted that ICC Judges have the power to review the Council's conclusion and, if they disagree, release or acquit the defendant. If necessary, a reassuring clause can be added, as suggested, confirming that the ICC retains complete independence in trying any individual for the crime of aggression.

 

It is understandable that governmental representatives may be very cautious before accepting compromises and a new institution with uncertain consequences. Defense Departments may see things from a different perspective than Foreign Ministries or Ministries of Justice, but the innocent need never fear the rule of law. Transparency, budgetary controls, supervisory Judicial Chambers and Assemblies of the Parties provide reliable assurance against abuse of the judicial process by highly qualified and carefully selected Prosecutors and Judges who must be trusted not to betray their trust.

 

Conclusion

The evolution of international criminal law is a part of a historical process that took its first steps in Nuremberg, walked forward with the ad hoc tribunals in the Hague and now stands poised for another step in the right direction in Rome. But the long journey does not end in Rome. Many essential components have barely been discussed and may have to be incorporated in later instruments. No accord has yet been reached on the relationship of the Court to the UN and how the ICC is to be funded - whether by the regular UN budget (subject to the whims of the Assembly,) by the States that accept the Court, by voluntary contributions or a combination of all three. The site of the ICC will probably be the Hague but Nuremberg has also offered to host the Tribunal. How many states must sign before the treaty goes into effect is undecided and there is no way of knowing when powerful states will ratify the new treaty. This will all be reported to the General Assembly at the end of 1998 for appropriate action.

 

Delay can be detrimental and dangerous. The Charter for the IMT at Nuremberg was drawn in six weeks and had only 30 articles Many other perfectly adequate models were drafted years ago by the United Nations and expert organizations. The Statutes for the International Criminal Tribunal for Yugoslavia has only 34 articles and was completed in weeks. The same is true for the Rwanda Tribunal. Appropriate Rules of Procedure for such courts are already in existence and can easily be adapted to meet any new needs of an ICC. It is far more important to focus on the essential substance than to try to anticipate every conceivable problem and seek consensus on every detail. The desire for unanimity and universality is very laudable but it must not be allowed to defeat the enterprise or become a trap in which the lowest common denominator becomes the norm or vague and ambiguous clauses conceal the absence of real agreement.

 

The Nuremberg Tribunals created a precedent and held forth a promise: "Never Again" would aggression, genocide, crimes against humanity and war crimes be tolerated without punishment of the perpetrators. The world has already waited over half a century for that implied promise to be kept. Millions of innocent people have paid dearly for the inability of statesmen to fulfill the dream. Must the world rely on more Security Council improvisations to bring to justice those who defile the name of humanity? To condemn atrocious crimes yet do nothing to create a permanent court to try the criminals is to mock the victims and encourage more criminality. Young people from all over the world have joined hundreds of non-governmental organizations to campaign for the establishment of a new world institution that can protect the fundamental rights of human beings everywhere under the protective shield of international criminal justice.

 

It is inconceivable that man can invent technology and implements capable of destroying all living things yet lack the capacity to draft a relatively simple legal statute that may prevent it from happening. Those whom destiny has placed in a position to decide must finally take a chance for peace. Given adequate political will, an ICC can certainly become a reality. It must be done for the sake of a more humane and peaceful world. The legal community is itself on trial and has a unique opportunity to acquit itself nobly. Nuremberg came to grips with the past; Decision- makers in Rome must build on the Nuremberg precedents and come to grips with the future. The time is ripe and the time to act is now!

 

Benjamin B. Ferencz

J.D. Harvard 1943

A former Nuremberg Prosecutor

 

 

 

 

 

 

 

Closing A Gap in International Law - Make Law Not War

 

By Benjamin B. Ferencz

published: April 1998

source: The World Today, London, June 1998

 

29 April 1998

 

The world stands on the threshold of closing a glaring gap in the international legal order. Over fifty years ago, the International Military Tribunal at Nuremberg denounced and punished aggression, crimes against humanity and massive war crimes as offenses that would be condemned wherever they occurred. There was an implied promise that "never again" would genocide go unpunished. The United Nations agreed unanimously and the Nuremberg principles became binding international law. But there existed no permanent international court to try future war criminals. Nations went back to killing as usual.

 

Cold-war rivalries and entrenched notions of sovereignty eroded the political will to bring genocidal national leaders to impartial justice. After years of UN debate, a treaty to establish a permanent international criminal court may be ready for signature in Rome in July 1998. Whether agreement can be reached and which countries will sign, ratify and enforce the treaty remains to be seen. The international legal community is itself now on trial.

 

Reluctance to Yield Power

All nations seem to agree in principle that a permanent International Criminal Court (ICC) is needed, but the problems still to be overcome are considerable. The declared goal is to create a world criminal court that is "fair, efficient and effective" - which to some means a court that will not interfere with perceived national interests. There's the rub! Current drafts reflect continuing reluctance of powerful states to yield any significant segments of their power.

There is agreement that the ICC can only come into play when national courts are unwilling or unable to bring suspects to fair trial, but the criteria of inability and who decides that question are still in dispute. Some countries want the right to "opt-in" or "opt-out" of answerability for certain crimes. Some argue that the state whose nationals are involved, as perpetrators, victims or captors, must give their consent before the ICC can try the accused. They fail to recognize that crimes of great magnitude almost invariably require official complicity and the accomplice could hardly be expected to try itself.

 

Security Council Control

The United States, mindful of its conservative Senate and a reluctant Pentagon, insists that Security Council permission must first be obtained before the ICC takes any action. Those without veto rights in the Council resist every assertion of special privilege. They fear, quite rightly, that complete Security Council control will destroy the independence of the Tribunal. Since the Council's rights and duties are set by the UN Charter and cannot be decreased or enlarged without amending the Charter, there seems no compelling reason to re-affirm existing Charter rights, or assert powers that go beyond Charter authorizations.

The Council demonstrated its power when, in a matter of weeks, it created two ad hoc tribunals, based in The Hague, to deal with massive human rights violations in former Yugoslavia after 1991 and with genocide in Rwanda in 1992. If the Rome treaty route should fail or falter, the Security Council may be the only alternative left to bring international criminals to speedy trial. Despite great difficulties - notably the failure of states to arrest leading perpetrators - the Hague criminal tribunals have been earning increasing respect and deserve greater support. But a string of special courts created a la carte, and limited to certain crimes in defined areas during a limited time, can hardly be the best way to establish universal justice.

 

Defining the Crimes

It is generally agreed that only a few "core crimes" of major significance to the world community should be dealt with by the ICC. Other crimes, such as terrorism and drug-trafficking may be added later. Whether aggressive war - the Crime against Peace - will be included in the treaty is still being discussed. Mistrust of a politicized Security Council is one reason advanced by those who argue that aggressive war - condemned at Nuremberg as "the supreme international crime" - should not be subject to judicial review. But under the UN Charter and other legal instruments, only the Council is authorized to determine when aggression by a state has occurred. That cannot be changed and simply reinforces the need for an independent ICC authorized to decide whether any accused individual is guilty of the crime.

 

Allowing national leaders to launch wars of aggression with personal impunity is not a tolerable alternative. The additional excuse, that aggression has not been adequately defined, undercuts Nuremberg, defies the views of most legal experts, belittles the definition reached by consensus at the UN in 1974 and undermines the search for world peace.

 

Defining the scope of crimes against humanity and war crimes (amply articulated by the International Red Cross) also remain unresolved. Military branches of powerful nations show particular reluctance to risk subjecting their war-related activities to international legal scrutiny. They fail to recognize that the best protection for all armed forces, as well as non-combatants, is to de-legitimize, deter and eliminate illegal war-making itself - together with atrocities and crimes against humanity that are its inevitable consequences. Those who have the destiny of peoples in their power must come to realize that law is always better than war.

 

Powers of the Prosecutor

Some insist that the Prosecutor must be strictly controlled in order to avoid the risk of political bias. Others, including top people from the Hague criminal tribunals, argue convincingly that greater freedom is required to do the difficult job properly. Since Prosecutors and Judges, carefully selected from highly qualified experts, will be subject to constant public scrutiny, budgetary controls and supervision by a judicial chambers and a proposed Council of States, there is no likelihood that they will run amok. Carefully selected and monitored officials must be trusted not to betray their trust.

 

Fair Trial

All agree that the accused must receive a fair trial: be presumed innocent, defended by competent counsel, protected against double jeopardy and death penalty and receive other benefits common in democratic states. Trying to spell out in advance all of the applicable legal principles and procedures produced the inevitable variety of views. Many urged that nations simply follow the sensible practice of Nuremberg and the ad hoc tribunals by leaving rules of procedure and court administration for later formulation by the Judges themselves.

 

Compensation to Victims

Provisions requiring restitution, fair compensation and rehabilitation for victims seemed acceptable and necessary but requiring ICC judges to determine the amounts payable in each case failed to recognize the enormity of that burden. Germany's compensation programs for victims of Nazi crimes offers a useful model. Japan's failure to recognize responsibility offers a useful warning.

 

Still to be Discussed

Many details have not yet been debated: how is the ICC to be related to the UN, how is it to be funded and its judgments enforced, can there be exceptions to various provisions, and when does the treaty go into effect. No one can expect lawyers coming from 185 nations with different social systems to agree on every detail of a complicated legal statute. Compromise is essential. The desire for universality is laudable but must not become a trap in which the lowest common denominator becomes the norm and the universally declared goal is buried under a cloak of ambiguous clauses that conceal the absence of true agreement. Human rights activists and concerned citizens from all over the world now clamor for an International Criminal Court. Diplomats will have five weeks in Rome to iron out their differences, stop bickering, overcome their fears and hesitations and demonstrate their statesmanship, vision and courage.

 

Conclusion

The fundamental question is whether nations are really willing to accept binding international criminal law to enforce generally accepted norms of civilized human behavior designed to protect basic human rights of people everywhere. They have nothing to fear by signing the treaty in Rome next July. The innocent need never fear the rule of law. A treaty is not retroactive and binds only those states that ratify it. Nations must be willing to be bound by rules of the road that benefit everyone. There is no danger in voluntarily accepting restraints for the common good.

 

Antiquated notions of absolute sovereignty are absolutely obsolete in the interconnected and interdependent global world of the 21st century. Since the days when King John was forced to sign the Magna Carta on the fields of Runnymede in 1215 it has become evident that no man can be above the law. The true sovereigns today are the people themselves. They deserve to be protected under the mantle of binding international criminal law. Plenipotentiaries assembling in Rome in the summer of 1998 must come to grips with the future by creating an international criminal court for the sake of a more peaceful and humane world.

 

Benjamin B. Ferencz, J.D. Harvard, 1943, a Prosecutor at the Nuremberg Trials

 

 

 

 

 

 

 

 

Courting an International Criminal Court

 

By Benjamin B. Ferencz

published: February 1997

source: Nuclear Age Peace Foundation, February 15, 1997

 

Once again, the creation of an international criminal court is high on the United Nations agenda. The General Assembly has instructed a Preparatory Committee to draft a constitution for such a tribunal for consideration by high-ranking diplomats at a conference tentatively scheduled to take place in Italy in June 1998. Ever since the Nuremberg Charter and tribunals outlawed aggression, war crimes and crimes against humanity over fifty years ago, the international community has pursued the goal of bringing all such transgressors before the bar of justice. What will it take for nations to agree upon a widely acceptable text that will close a glaring gap in the world legal order?

 

1. The primary and most vital ingredient remains political will.

Nations should recognize that a more peaceful and humane world can only come about by replacing the force of war by the force of law. Small and poor nations have much more at stake than the rich and powerful. In our interdependent planet, the peace and well-being of each is inextricably linked to the peace and well-being of all. Outdated notions of sovereignty must not block acceptance of rules of the road needed to enhance the security of people everywhere by deterring wars of aggression, genocide and the horrible crimes against humanity that continue to deface the human landscape.

 

2. The need to compromise is essential.

Consensus is desirable, but to expect 185 nations of different social systems and stages of development to agree on all provisions of complicated legal proposals is to expect the impossible. Essential components for a fair and effective tribunal can certainly be found in the Nuremberg and Tokyo trial precedents, drafts by U.N. committees in 1952 and 1954, recommendations based on years of study by the International Law Commission, and statutes approved by the Security Council for the ad hoc tribunals dealing with crimes in Yugoslavia and Rwanda. There are thoughtful new proposals put forward by France, the United States, Canada, Australia, Japan, Egypt, Germany and other members of the European community as well as a dozen Caribbean states and a host of non-governmental organizations and expert legal institutions.

 

3. Have Confidence in the Judges.

One must assume that outstanding jurists chosen by many nations from different legal systems will have the intelligence and integrity to carry out the spirit of the law and operate the court in a fair and efficient way. Whether - as proposed - there be 18 judges or 24 or more or less and whether they sit for 9 years or some other period, is not decisive. Almost all drafts already contain basic requirements: defendants must be presumed innocent, have counsel of their choice, must not be tried twice for the same crime and be assured of safeguards for open and fair trials. An informed public and vigilant monitors of the budget serve as additional guarantors against judicial abuse.

 

4. Current legal challenges can be overcome.

Which crimes are to be subject to the jurisdiction of the court? Nuremberg listed only three: aggressive war, (the crime against peace) crimes against humanity and war crimes. These were unanimously affirmed by the General Assembly in 1946 when Genocide was added. They are considered binding "customary law". Some would like to broaden the list to include apartheid, terrorism, drug-trafficking, environmental degradations and similar offenses widely condemned by multi-national treaties. The majority seems inclined to defer such expansion for later consideration.

 

Some would not include the crime of aggressive war at this time. They argue that it is insufficiently defined and would involve the Security Council which may be influenced by political considerations. True, the UN Charter vests the Security Council with primary responsibility for ascertaining whether aggression has occurred, but individual guilt should only be determined after fair trial by an independent judicial tribunal. A detailed definition was reached by UN consensus in 1974 and adequate definitions appear in several recent drafts. Failure to include aggression (condemned at Nuremberg as "the most serious of all crimes") is to repudiate the Nuremberg principles. It undercuts the emerging rule of law and undermines progress toward an aggression-free and peaceful world.

 

Who can bring charges and start the prosecution? Complaints that the agreed laws have been violated should be welcomed from any responsible source. To prevent abuse, the Prosecutor should be required to have the allegations and supporting evidence reviewed by a pre-trial judicial body before being authorized to prepare for public trial.

 

Who has priority in trying the accused, is it a national state or the international tribunal? If a state is willing and able to deal with prohibited international crimes in its own courts, and does so in a fair and reasonable way, then there is no need for international adjudication. National courts have primacy and the international tribunal is subsidiary. The sad fact is that outrages such as aggression, genocide and crimes against humanity are usually committed with the complicity of a national government. If sham trials by such a government (or its allies) are to be avoided, it is essential that an objective international court step in to protect world society. It should be obvious that the international tribunal alone should decide whether it must take exclusive jurisdiction

 

Enforcement remains a problem. Without force, law is farce. Present drafts do not envisage an international criminal court with its own police or enforcement powers. Although the UN Charter called for an international military force to maintain peace, these mandates have not yet been honored. Consent by all five Permanent members is required before the Council can impose economic, military or other sanctions. Pressured by public outrage, the Council was able, in a few month's time, to approve statutes for ad hoc criminal tribunals to punish crimes against humanity in former Yugoslavia and Rwanda. It was an important stepping stone after Nuremberg. But the Permanent Five, for unstated political reasons, failed to create any enforcement mechanism. The result: some major criminals, accused of planning or supervising "ethnic cleansing" and mass rapes, have not been taken into custody.

Failure of powerful nations to provide adequate support to these ad hoc tribunals not only jeopardizes a permanent court, but mocks the memory of the victims and encourages more criminality.

 

5. Where do we go from here?

The goal is to move forward in Rome in the hot summer of 1998. If all goes well, decision-makers will not be accused of quibbling while Rome burns. Given the political will, a treaty can be signed by many states signaling their intent to move toward a more humane and peaceful world through law. How long it will take before nations will ratify such a treaty is an open question. There is always the hope that, if the traditional treaty route falters, the Security Council will decide to act quickly - as they have been able to do in the past. In the last analysis, everything depends upon the will of the public and its ability to communicate its desires to leading politicians and diplomats who have the courage to seize the moment in order to save the future.

This article may be reproduced freely, with or without attribution. Maximum dissemination is desired.

 

 

 

 

 

 

 

 

The Path to World Peace

 

By Benjamin B. Ferencz

published: June 1996

source: Web Posting

 

June 22, 1996

 

Every orderly society has three requirements:

Clear laws, to define what is permissible and impermissible;

Courts (civil and criminal) to settle disputes or punish violators;

Effective enforcement.

Although we now live in an interdependent world, on the international level these three vital components are weak or non-existent. The result: chaos or danger to everyone...

 

To eliminate these shortcomings, without intruding needlessly into national, local or personal affairs, we need:

Laws clearly defining those acts that may threaten us, such as international aggression, genocide and other crimes against humanity;

An international court with compulsory authority to settle all disputes that threaten the peace of nations as well as an international criminal court to punish such crimes wherever they occur;

 

A system of enforcement that will tell even heads of state that they can no longer get away with mass murder.

 

The United Nations was supposed to protect succeeding generations from the scourge of war. It has not done so for the simple reason that the member states - that were legal obliged to honor the Charter they ratified - have failed to live up to their legal and moral obligations. The Charter must be given a chance to work. Its provisions for universal disarmament under effective international controls must be respected. An alternative security system based on economic and other sanctions must be put in place. The United States should not have to be the policeman of the world. A UN Security Force, as envisioned by the Charter, should be created. Furthermore, the revolting conditions that give rise to revolts that threaten world peace must be diminished as nations enhance social justice, protect the environment and respect minimum standards of human rights for all.

 

Comprehensive details can be found in a widely-hailed new book by Professor Benjamin B. Ferencz, a Prosecutor at the Nuremberg war crimes trials and the author of many books on world peace. Global Survival can be obtained in paperback for only $15 by dialing 1-800 WFA-0123. Your life may depend on it!

 

 

 

 

 

 

 

 

 

Ameliorating Traumas Caused by International Crimes and Other Crises

 

By Benjamin B. Ferencz

published: April 1996

source: The Criminal, Volume 7, Number 1, 1996

 

Reviewing: Yael Danieli, Nigel S. Rodley, and Lars Weisaeth (eds.), International Responses to Traumatic Stress: Humanitarian, Human Rights, Justice, Peace and Development Contributions, Collaborative Actions and Future Initiatives. New York: Baywood, 1996, 473 pp.

 

International criminal law is an evolving process. The definition of international crimes remains incomplete, new ad hoc international criminal tribunals created in the wake of the Nuremberg and Tokyo war crimes courts of held a century ago have only circumscribed authority, and a permanent international criminal court with universal jurisdiction remains a hope on the distant horizon. In his foreword to the UN publication, Secretary-General Boutros Boutros-Ghali laments that the effects of traumatic stress caused by international crimes are too often neglected even by mental health professionals. The contributors seek to remedy the shortcoming – at least in part. How the international community is beginning to respond to the traumas endured by millions of innocent victims is a subject that should concern all those interested in the comprehensive development of international criminal law.

 

This book describes efforts by the international community to understand and curb the devastating psychological impact of horrendous human rights violations and natural disasters. The three editors are clinical psychologist Yael Danieli of New York, a recognized authority on traumatic stress in Holocaust survivors; Nigel S. Rodley, an international lawyer from England who has written extensively on human rights activities at the United Nations; and Lars Weisaeth, a professor of psychiatry from Norway who has studies the psychiatric effects of trauma arising in varied military and civilian settings. The book’s seventeen chapters are written by thirty contributors experienced in various UN and nongovernmental organizations (NGOs) concerned with ameliorating human suffering.

 

The scan of the book sweeps back and forth across the spectrum of activities that give rise to human pain and suffering enormous enough to disrupt the social order. The expert authors describe the dedicated efforts of many UN and nongovernmental agencies to diminish the social and psychological trauma generated by such crimes as mass rape, genocide, forced displacement, and other atrocities prevalent during armed conflicts. They portray the disabled condition of traumatized women and children – as well as the impact not only on victims but also on perpetrators and witnesses to human inhumanity. The magnitude of the problem compared with the relatively meager success of prevention or amelioration presents a frightening picture that the contributors hope will inspire greater determination and effort by the world community. Each chapter is followed by a list of references from which the reader can cull important writings on the subject.

 

Studies of Nazi Holocaust survivors reveal that integration of the traumatized victim cannot be accomplished by the individual alone. Feeling helplessly and hopelessly discarded, the survivor must be restored to a respected place in society. The stigmatization that occurred through separation can be relieved by public recognition of the historical truth regarding the persecution, apology from the perpetrators, real and symbolic restitution and compensation, rehabilitation, commemoration, and a perceived and determined effort to secure justice by publishing the wrongdoers and preventing recurrence of the crimes. Failure to implement these policies exacerbates the wounds and stimulates the desire for revenge, which frustrates conflict resolution and preventive interventions. [1]

 

A new term had to be invented to describe psychological so entrenched and severe that the damaging effects (as with nuclear explosions) can be seen in succeeding generations. “Post-Traumatic Stress Disorder,” or PTSD, gives a scientific ring and title to a condition that science does not yet fully understand. PTSD resembles what was called “shell shock” after World War I, but it is much more pervasive and elusive. The invisible internal stress caused by such violations of the human person as torture, mass rape, and genocide (now euphemistically called “ethnic cleansing”) is often so painful that the psychic trauma is denied by the victims – many of whom, after apparently reaching success, commit suicide.

 

There are limits to what the United Nations can do to offset psychic pain. Charged by its Charter to maintain peace and protect the human rights of all human beings, the United Nations can act only through its constituent sovereign states – when and if they share the political will to do so. Without authority to enact binding laws, without independent funds, and without enforcement powers, the United Nations is severely handicapped. Through exhortation, nonbinding General Assembly resolutions, and ambiguous conventions accepted by consensus, the United Nations encourages states to implement new standards of morality and humanitarian law. But when these desirable goals are flouted, as they often are, the consequences are paid for in cast amounts of human blood and misery while dedicated UN civil servants and NGOs are often obliged to look on in helpless frustration and despair.

 

It is not recognized that prosecuting the perpetrators of crimes against humanity and compensating the victims are critical pillars of justice. [2] But reducing the trauma of victimization requires more research, training and education. Eduardo Vetere and Irene Melup of the UN Crime Prevention and Criminal Justice Program, referring to the right of “humanitarian intervention,” sense a growing acceptance of collective responsibility for the fate of others as the world slowly moves toward greater cohesiveness, genuine solidarity, and social control under the rule of law. This hopeful view derives from the topics addressed by many UN crime conferences over the years: trafficking in women and children for sexual exploitation, violence against refugees and migrants, illicit drug trade, the killing of large numbers of children by land mines, terrorism, political repression, as well as fair treatment for offenders.

 

The emerging international law of human rights stems from more than eighty UN human rights treaties and declarations. But states are reluctant to subject themselves to international courts or controls and consensus declarations are usually laced with loopholes allowing varying interpretations. The United Nations Economic and Social Council, its new Department of Humanitarian Affairs, and many commissions and working groups valiantly try to improve the situation but have limited success. It is only under circumstances of extreme provocation and public outcry that the Security Council is prompted to act decisively by using its enforcement authority to maintain peace under Chapter VII of the UN Charter.

 

Mary Petevi describes the efforts of the UN High Commissioner for Refugees in trying to cope with the massive sadness and despair generated by the abuse and forced displacement of over twenty-three million persons in Africa, Southeast Asia, Europe, and elsewhere. [3] The difficulties of trying to treat the mental stresses of abandoned children, the elderly, and the mentally ill contribute to the burned-out feeling of relief workers, who themselves suffer traumatic effects from their experiences. The emotional stress on international humanitarian aid workers facing people dying by the thousands from thirst and dehydration in places like Zaire is also described in the book. [4] Survivors suffer from feelings of unearned guilt; helpers need help; witnesses to atrocities become emotionally devastated by feelings of rage, powerlessness, despair, and terror. [5] The challenge to NGOs, UN programs, and national agencies is often overwhelming.

 

A host of UN resolutions, treaties, conferences, guidelines, and declarations seek to protect women form discrimination, violence, and all forms of abuse. Christine Brautigam of the United Nations notes that the use of mass rape for “ethnic cleansing” in the former Yugoslavia is a war crime and that the creation of the ad hoc international criminal tribunal by the Security Council was a major step forward by specifically authorizing the tribunal to punish rape as a crime against humanity. [6] Rosalind Harris of International Social Service, a New York-based agency, deals with the contribution of many NGOs in handling traumas caused by violence against women. “It is requiring strenuous efforts,” she says, “to gain universal acceptance of the concept that human rights are women’s rights.” [7] John Orley of the World Health Organization describes the contribution made by that important UN agency as it recently took steps to incorporate PTSD into its diagnostic system. [8]

 

Armed conflicts are the greatest cause of traumatic stress, as can be seen from the report by Pascal Daudin and Hernan Reyes of the International Committee of the Red Cross. [9] Establishing contact with prisoners, deterring mistreatment, torture, or abuse – while maintaining neutrality and compliance with agreed standards – the ICRC, acting in conjunction with other organizations, helps to ensure better protection of basic human rights. UN peacekeepers, with limited mandates, are subjected to enemy fire, humiliations, and frustrations that generate stress syndromes that must be overcome. The UN Children’s Fund tries to heal the invisible wounds of children in war by tracing and reunification programs and training case workers to recognize and address symptoms of PTSD. Enabling young victims to mourn , reconnect, and rebuild their lives is part of the healing process fostered by UNICEF as it seeks to find causes and develop long-term holistic solutions to overwhelming psychological needs.

 

The worldwide contribution of NGOs to helping young victims of violence is described by Nancy Dubrow of the International Society for Traumatic Stress Studies (Chicago), Norbetto Liwski of Defence for Children International (Argentina), Carlos Palacios of Childhope International (Guatemala), and Meg Gardinier of the International Catholic Bureau (New York). [10] The contributions of NGOs offering victim assistance and support are outlined in many of the chapters. Victims of torture and “disappearances” harbor fears for the safety of their families. Agencies such as Amnesty International can publicize such illegal acts but much more is needed before these crimes can be brought to a halt. Agencies like the Lawyers Committee for Human Rights and the International Commission of Jurists have fought valiantly to enforce human rights through the courts. The activities of such legal NGOs slowly advance the rule of law despite great political obstacles.

 

In the final chapter, Professor Roger Clark of Rutgers University and Professor Daniel Nsereko of the University of Botswana deal with the vital issues of implementation and coordination of international organizations and mechanisms to curb traumatic stress. [11] They call for more detailed standards at both the national and the international level, international supervision and reporting, individual complaint procedures, and greater public awareness of the work being done in the field and what still needs to be done to protect human rights by coordinated and coherent policies on all levels.

 

Despite efforts to end on an optimistic note, the perceptive editors must conclude that “traumatic stress is one of humanity’s growing plagues.” [12] They are to be applauded for this systematic attempt to describe international responses to great human tragedies that almost go unnoticed by the general public. As nationalist and ethnic tensions continue to explode into conflict all over the world, the virus of unchecked hatred destroys millions of victims – physically, morally, and mentally – in an endless cycle of recurring crime and violence. If, as the editors conclude, “[g]enuine peace cannot exist without the resolution of trauma,” [13] the traumas herein described cannot be curbed without the existence of peace. Everything is linked. We must have clearer laws, courts with binding civil and criminal authority, and an effective system of international law enforcement built around a stronger United Nations supported by the many nongovernmental organizations and an informed public from all nations. The editors here challenge all human beings to behave like human beings in order to save humanity. International Responses to Traumatic Stress is a book worth reading and pondering.

 

The writer was a Nuremberg war crimes prosecutor.

[1] Editors’ Introduction to International Responses to Traumatic Stress 1, 4 (Yael Danieli et al. eds, 1996)..

[2] Eduardo Vetere & Irene Melup, Criminal Activity – Victims of Crime: The Contribution of the United Nations Crime Prevention and Criminal Justice Program, in International Responses to Traumatic Stress, supra note 1, at 15, 48-49.

[3] Mary Petevi, Forced Displacement – Refugee Trauma, Protection, and Assistance: The Contribution of the United Nations High Commissioner for Refugees, in International Responses to Traumatic Stress, supra note 1, at 161.

[4] Barbara Smith et al., Health Activities across Traumatized Populations – Emotional Responses of International Humanitarian Aid Workers: The Contribution of Non-governmental Organizations, in International Responses to Traumatic Stress, supra note 1, at 397.

[5] Id. at 406.

[6] Christine Ainetter Barutigam, Traumatized Women – Dealing with Violence against Women: The Contribution of the United nations Commission on the Status of Women, in International Responses to Traumatic Stress, supra note 1, at 347, 361.

[7] Rosalind W. Harris, Traumatized Women – Dealing with Violence against Women: The Contribution of Non-governmental Organizations, in International Responses to Traumatic Stress, supra note 1, at 383.

[8] John Orley, Health Activities across Traumatized Populations – WHO’s Role Regarding Traumatic Stress: The Contribution of the World Health Organization (WHO), in International Responses to Traumatic Stress, supra note 1, at 383.

[9] Pascal Daudin & Hernan Reyes, Armed Conflicts and Analogous Disturbances – How Visits by the ICRC Help Prisoners Cope with the Effects of Traumatic Stress: The Contribution of the International Committee of the Red Cross, in International Responses to Traumatic Stress, supra note 1, at 219.

[10] Nancy Dubrow et al., Traumatized Children – Helping Child Victims of Violence: The Contribution of Non-governmental Organizations, in International Responses to Traumatic Stress, supra note 1, at 327.

[11] Roger Clark & Daniel Nsereko, Issues of Implementation and Coordination, in International Responses to Traumatic Stress, supra note 1, at 425.

[12] Yael Danieli & Lars Weisaeth, Conclusion to International Responses to Traumatic Stress, supra note 1, at 439, 440.

[13] Id. at 440.

 

 

 

 

 

 

 

Symposium on the Gulf War: The Nuremberg Principles and the Gulf War

 

By Benjamin B. Ferencz

published: October 1992

source: The St. John’s Law Review, Volume 66, Fall 1992, Number 3

 

I. INTRODUCTION

On December 11, 1946, the first General Assembly of the United Nations passed three successive resolutions designed to prevent a recurrence of some of the atrocious crimes that had been committed during World War II. These resolutions demonstrated the international community’s respect for what have become known as the Nuremberg principles. The first resolutions, 94 (I), [1] designated a UN committee to study the progressive development and codification of international law. The second resolution, 95(I), [2] unanimously affirmed “the principles of international law recognized by the Charter of the Nurnberg Tribunal and the judgment of the Tribunal.” [3] The third resolution, 96(I), [4] condemned genocide as an international crime, “for the commission of which principals and accomplices – whether private individuals, public officials or statesmen . . . are punishable.” [5] What has happened to those resolutions during the intervening years, and what relevance do they have for the Gulf War of 1991?

 

By way of background and refresher, let us briefly review the Nuremberg principles to see what action has been taken in the United Nations – or elsewhere – to develop and codify international criminal law, and what impact these principles have had on the behavior of states and national leaders. The war in the Gulf can then be appraised in light of the historical legal record to see what lessons may be learned in we are to have a more peaceful world order.

 

II. THE NUREMBERG PRINCIPLES REVIEWED

The origins of the Charter for the International Military Tribunal (“IMT”) and the basis for its codification of emerging norms of international criminal law have been set forth in meticulous detail elsewhere and need not be repeated here. [6] It is important to understand that neither the IMT Charter nor the Tribunal was something newly created out of whole cloth by a vengeful world. Quite the contrary; the widespread desire simply to execute Nazi leaders had to be suppressed – primarily by the United States – in order to give those accused a fair trial under law. [7] The Charter articulated norms that had been emerging over a long period of time and that were supported by a substantial body of treaties, pacts, conventions, declarations, and international understandings outlawing the actions therein condemned. [8]

 

The Charter, which was adhered to by nineteen other nations, listed three broad categories of crimes that were subject to criminal punishment. [9] It also laid down certain principles that were to bind the court [10] and established procedures to govern the trial. [11] Crimes subject to the Tribunal’s jurisdiction were:

Crimes Against Peace: planning, preparation, initiation, or waging of a war of aggression;

 

War Crimes: violations of the laws or customs of war; and

Crimes Against Humanity: murder, extermination, enslavement, deportation committed against any civilian population, as well as certain persecutions on racial, political, or religious grounds. [12]

 

The Crime Against Peace, commonly referred to as aggression or aggressive war, articulated the evolving legal norms which found earlier expression in such widely accepted treaties as the 1928 Kellogg-Briand Pact for the General Renunciation of War. [13] Declaring a war crime to be a criminal offence was nothing new: the Hague Conventions and many agreements and codes for the conduct of war had made the commission of atrocities a punishable military crime. [14]

 

What distinguished a Crime Against Humanity from an ordinary felony or war crime was its magnitude: the offensiveness of the Crime Against Humanity was so great that it shocked the conscience of, and thereby constituted a crime against, all humanity, rather than merely against the citizens of an offended state. What was new, however, was that the law, following the needs of a changing world, had reached a point where national leaders would be held accountable for such massive violations of human rights – even if committed against their own citizens. [15]

 

In addition to listing three categories of crimes, the Charter laid down certain principles to govern the court: (1) leaders, organizers, instigators, and accomplices of a common plan or conspiracy to commit any of the three categories of crimes would be held criminally responsible; (2) the official position of a defendant – even if head of state – would not free him of responsibility or mitigate punishment; (3) acting under superior orders could be considered in mitigation only if, in the opinion of the court, justice so required ; and (4) in the interests of justice, the Tribunal was authorized to try a person in absentia. [16]

 

After reviewing its jurisdictional basis, legal principle, and procedures, the Tribunal concluded that the Charter was not an arbitrary exercise of power but rather the expression of international law existing at that time, thus merely codifying prevailing norms. Recognizing aggression as the supreme as the supreme international crime, and one which high-ranking accused must have known was wrong, the Tribunal determined that it would be unjust to allow them to escape liability just because no one had previously been convicted of that offense. The Charter’s provisions condemning atrocities and other war crimes and reaffirming that superior orders would not free and individual from responsibility were found to conform with the prevailing law of all civilized nations. [17]

 

To be sure, nothing quite like the IMT had ever existed, but it was the logical and promised culmination of previous war crimes proceedings and unsuccessful attempts to try the Kaiser and German war criminals after World War I. Justice Robert H. Jackson, on leave from the Supreme Court of the United States, was the principal architect of the Charter and served as Chief Prosecutor for the United States. In his opening statement, Justice Jackson gave assurances that the fundamental purpose of the trial was to advance the cause of law and justice – “one of the most significant tributes that Power has ever paid to Reason . . . . The records on which we judge these defendants today,” he said, “is the record on which history will judge us tomorrow.” [18]

 

Surely, it would have been preferable to have a tribunal composed solely of representatives of neutral nations, by World War II was so widespread that no nation was truly neutral. The fairness of the proceedings was assured by opening the courtroom to the public, by relying extensively on documentary evidence from captured German archives, and by guaranteeing every accused an absolutely fair trial. [19] The principles and procedures developed at Nuremberg were reaffirmed and usually hailed as a great landmark in the evolution of international criminal law at other war crimes trials, notably the IMT trial at Tokyo in 1946 and the subsequent proceedings at Nuremberg and elsewhere. [20] ’

 

A principle of law – perhaps the most important – illustrated by the Nuremberg trials, although not listed among the standard Nuremberg principles, is that those in power should punish only those have been found guilty of crimes beyond a reasonable doubt after a fair trial in which the accused were presumed innocent. It is a principle well worth remembering when nations go to war and seek to establish peace.

 

III. THE DEVELOPMENT AND CODIFICATION OF INTERNATIONAL LAW

The idea that law should be clarified or codified did not begin at Nuremberg. It goes back to ancient times. One need only recall such well known decrees as the Code of Menes, three thousand years before the birth of Christ, the codes of Hammurabi, Draco, Solon, Moses, Justinian, and similar sages who have gained renown as law-givers. The concept of international law as we know it today, however, is fairly new. Indeed, Jeremy Bentham has been credited with being the first to use the expression “international law” just over 200 years ago. [21]

 

The fear and suffering generated by war have inspired the formulation of international norms intended to control violent international behavior, as illustrated by the Hague Conventions of 1899 and 1907. Following the tragedy of World War I, which cost the lives of at least twenty million people, the international community was shocked into renewed efforts to curb violence between nations. The 1919 Covenant of the League of Nations – like the later Charter of the United Nations – created an international organization designed to maintain the peace by “obligations not to resort to war,” by “the firm establishment of the understandings of international law,” and “by the maintenance of justice.” [22]

 

The League appointed a Committee of Experts for the Progressive Codification of International Law Commission (“ILC”). The Committee’s effectiveness, however, was severely limited by the diversity of the various states’ interests and by the unwillingness of states to accept restraints on their perceived sovereign rights or interests. Moreover, many states were not ready to accept the binding jurisdiction of any international court – least of all in criminal matters that might jeopardize their own leaders. Nonetheless, during the many intervening years, some progress has been made in many noncontentious areas of common concern, such as in defining consular and diplomatic relations and in the law of treaties. [23]

 

It would not be unfair to conclude that the ILC works at a pace which would make a snail with a crutch look like a speed demon. This melancholy conclusion reflects the political reality that nations simply are not ready to agree upon fixed codes or rules of conduct that may inhibit their behavior in matters which they regard as affecting their honor or vital interests. Many nations would rather go to war than accept outside decision. Professor Georg Schwarzenberger of London, noting the failure of nations to respect and advance the law of the Nuremberg and Tokyo trials, said that “the Powers involved in the nuclear nexus have resigned themselves, if necessary, to forsake civilization and accept the consequences of mechanized and depersonalized warfare or, in other words, mid-twentieth century barbarism in its most destructive form.” [24]

 

Of course, nations are not prepared to admit that they are barbarians, nor are their lawyers ready to concede their inability to reach agreements on vital issues of life and death that affect the peace and security of humankind. In an effort to show progress of to end the debate, ostensible agreements – which are not agreements at all – are accepted. To reach a consensus, party nations adopt language so artfully contrived and ambiguous that each nation may plausibly argue for the validity of its own interpretation and the invalidity of its adversary’s. Professor Julius Stone appropriately described this reality as “conflict through consensus.” [25]

 

The point may be illustrated by noting what nations have done to define and prohibit some of the international crimes condemned at Nuremberg and allegedly committed during the Gulf War. It took the nations of the world more than fifty years to agree upon a definition of aggression. [26] The definition was adopted by the UN General Assembly on December 14, 1974 without putting it to a vote. [27] The adopted definition was intended to guide the Security Council which, all agreed, was the sole judge of whether aggression had occurred. Despite its adoption by the General Assembly, the definition has proved to be ineffective. Even assuming that the Security Council had been willing to be guided by this definition, its many loopholes and ambiguous clauses did not really offer much guidance. [28]

 

One such ambiguity was the failure to address the distinction between aggression and self-defense, thereby practically guaranteeing that all future wars of aggression would be fought only “in self-defense.” The ineffectiveness was further compounded by the requirement in the consensus definition that “all relevant circumstances” (whatever that means) must be taken into account. [29] Also, because of only a war of aggression was a crime and because only the state itself could determine if it was at way, a unilateral declaration that the state was not engaged in war but rather in a simple “police action” might exculpate it from criminal liability. In addition, the consensus definition provided that the use of force in pursuit of such justified goals as self-determination or freedom from alien domination could not qualify as a crime of aggression, and that those “under colonial or racist regimes or other forms of alien domination” could use any force, or receive any assistance, to obtain their liberation without being subject to criminal liability. [30] Thus, despite its symbolic value as an expression of humanity’s aspiration for a more peaceful world, the consensus definition of aggression ironically invited aggression by groups or nations that could find shelter behind its exculpatory clauses.

 

Some countries and groups, such as the Palestine Liberation Organization, are convinced – no doubt sincerely – that their particular goals [31] are so justified that they may employ any means to achieve them – even violence – and that those who thwart their attainment are the real criminals. It has become a cliché that “one man’s terrorist is another’s freedom fighter.” These differences in perception have not yet been resolved. As a result, the declared consensus “agreements” on what constitutes the crime of aggression are more deceptive than real.

 

Similar ambiguities and lack of specificity can be noted in other legal instruments that ostensibly outlaw other grave international crimes. For instance, the UN Conventions prohibiting crimes against diplomats, terrorism, and hostage-taking [32] all contain almost identical phrases used to justify acts ordinarily considered to be outrageous criminal deeds. [33]

 

The international community has paid the price for such indecision and deviousness. Little wonder that international crimes have continued and will continue to plague the world until they are unequivocally and universally condemned and subjected to effective international law enforcement. But that will require a significantly improved international order – a subject beyond the scope of this Article. [34]

 

The failure of the international community to develop binding norms of international criminal law is most glaringly illustrated by the unsuccessful efforts, thus far, to draft an acceptable Code of Crimes Against Peace and Security of Mankind based on the Nuremberg principles – a mandate issued by the United Nations over forty-five years ago! [35] Nor has there been any significant progress toward the establishment of an International Criminal Tribunal to punish such offenses. Although special committees of the United Nations began to work on such a tribunal over forty years ago, no such court exists anywhere in the world today. [36] Recently, however, perhaps as a consequence of the Gulf War, terrorism, and drug-trafficking, the ILC and the Sixth (Legal) Committee of the United Nations have recorded some encouraging progress toward the enactment of a code of crimes. [37] The first reading of a draft code of crimes has been completed. In addition to the crimes enumerated at Nuremberg, the Commission, no doubt influenced by events in the Gulf, added “willful and sever damage to the environment.” [38]

 

Despite the Nuremberg precedents, it cannot be denied that international crime has been booming ever since. Nations have been accused of aggression in Korea, Czechoslovakia, Hungary, Vietnam, Cambodia, Afghanistan, Iran, Iraq, Grenada, Nicaragua, Cuba, Panama, the Middle East, Africa, the Mediterranean, and other parts of the globe. Predictably, it was always the “other side” that was the lawbreaker attacking the innocent party defending itself or its allies. Although millions of innocent people were killed in such conflicts, consolation was sought in the fact that the nuclear super-powers refrained from blowing up the whole world.

 

The wars which have flourished everywhere since World War II have been accompanied by grave breaches of the laws of war, including the illegal use of poison gas. Genocide has been alleged against Idi Amin of Uganda and Pol Pot Kampuchea. Other crimes against humanity, including apartheid,, terrorism, the slaughter of religious and ethnic minorities, drug-trafficking, and deliberate and massive environmental degradation, have also gone untried and unpunished – to the shame of the international legal community!

 

The existence of a cold war between ideological rivals, who evaluated these events with different eyes and reached opposite conclusions (often for domestic or political reasons), coupled with the reserved right of the superpowers to veto any UN action, has been an important contributing cause to this sorry state of international law. Incalculable suffering and human misery have been the price paid by innocent people everywhere for the refusal of the world’s leaders to honor and expand the principles of Nuremberg.

 

Failure to respond effectively to aggression and other international crimes encourages more aggression and increased criminality. The inability of the world community to prevent such crimes in the past helped pave the way to the war in the Gulf and to the violations of international law that accompanied it.

 

IV. THE GULF WAR

On August 2, 1990, the armed forces of Iraq launched a massive, surprise attack against its peaceful Arab neighbor, the sovereign state of Kuwait. A statement from the White House deplored “this blatant use of military aggression” and announced that the United Sates – together with Kuwait – was calling an emergency session of the UN Security Council. [39] At 4:45 a.m. the same day, the Security Council convened. The Ambassador from Iraq explained that his government had been requested to intervene by a new Free Provisional Government of Kuwait and that Iraqi forces would be withdrawn as soon as order had been restored which he hoped would “take no more than a few days.” [40] He denounced the “flagrant intervention” by the United States, which he took as evidence of collusion between the American government and the previous government of Kuwait. [41]

 

Within seventy-five minutes, the Council unanimously passed Resolution 660, condemning the invasion and demanding that Iraq withdraw immediately and unconditionally. [42] Four days later, when Iraq failed to comply, the Council, invoking chapter VII of the UN Charter, unanimously ordered all states to impose strict economic sanctions against Iraq and not to recognize any puppet regime. [43] A few days later, United States Ambassador Pickering announced that at the request of Saudi Arabia, the United States and other nations were sending military forces into the area “to deter further Iraqi aggression.” [44]

When a defiant Iraq announced “a comprehensive and eternal merger with Kuwait,” the Security Council responded with Resolution 662, which declared the annexation null and void. [45] When Iraq refused to allow foreign nationals to leave, thereby holding them hostage, Resolution 664 demanded their immediate release. [46] Ambassador Pickering denounced what he called “this malign conspiracy of aggression and prevarication” and declared that Iraq’s President Saddam Hussein and his regime would bear full responsibility for their deeds. [47]

 

Kuwait complained that “Iraqi occupation forces were savagely intensifying their inhumane practices against innocent civilians in Kuwait,” killing people in the streets, burning homes, and committing other atrocities such as murder, rape, plunder, and torture – all of which were later detailed in submissions, reports, and videotapes presented to the Council. [48] Planned and premeditated looting, pillaging, and plundering of Kuwait by Iraqi forces took place on a massive scale, the enormity of which only became apparent later. [49] In addition to setting some 700 oil wells on fire, several millions of gallons of oil were deliberately flooded into the Arab gulf in what the Kuwaitis were later to describe as “the most extensive pollution of the marine environment in history.” [50]

Despite eleven resolutions tightening the sanctions – an unprecedented demonstration of unity among the Permanent Members – and diplomatic efforts by several states, Iraq remained self-righteous and defiant. The Council invited states to collect and submit evidence of grave breaches by Iraq and to prepare claims for restitution to their injured nationals and corporations. [51]

 

Sir David Hanny of Great Britain reminded the Council that under article 147 of the Fourth Geneva Convention, the Iraqi actions in Kuwait since August 2, 1990 were grave breaches and international crimes that came under the criminal jurisdiction of all parties to the Conventions. [52] France demanded that Iraq comply with its legal obligations. [53] The French representative, Mr. Dumas, later reminded the Council that the use of chemical and biological weapons was a breach of the 1925 Geneva Protocol to which Iraq was a signatory and that all those who violated those laws would “similarly be held personally responsible.” [54] Foreign Minister Hurd of the United Kingdom also referred to “personal responsibility.” [55] Mr. Ali-Shali of the United Arab Emirates warned of the tyranny of the individual, stating: “No Arab can feel anything but shame at the practices and conduct of the Iraqi regime, which has stabbed in the heart every Arab value, moral principle and concept.” [56]

 

Meanwhile, the United Sates, asserting an inherent right to come to the defense of threatened allies, continued its military build-up in Saudi Arabia, where it assembled more than 500,000 troops armed with the latest and most lethal military equipment ever devised. This army was joined by largely symbolic forces from other nations.

 

On November 29, 1990, the Security Council held a historic meeting, [57] and, after extensive debate, passed Resolution 678, which authorized member states to use “all necessary means to uphold and implement [R]esolution 660 and all subsequent relevant resolutions and to restore international peace and security in the are” if Iraq failed to comply by January 15, 1991. [58] The term “all necessary means” was nowhere defined, nor was it clear what controls, if any, might be exercised by the Council The reference to restoring peace in the area seemed to be a declaratory flourish of no significance because it was barely mentioned in the debate; its significance in expanding the area of conflict was to emerge only later.

 

What happened thereafter is well known, having been recorded on television and reported in great depth everywhere. In short, hostilities began on January 16, 1991 with thousands of coalition air sorties and missiles striking targets in Iraq. When some captured American flyers were displayed on Iraqi television, the State Department reminded Iraq that mistreatment of prisoners was a war crime, and France warned that “persons guilty of such breaches will have to answer for them, whatever their level of responsibility.” [59]

 

At four o’clock in the morning of February 4, 1991, the United States Central Command in Saudi Arabia led a coalition of forces from thirty countries, including the U.K., Kuwait, Egypt, and Syria, in a massive ground, naval, and air offensive with the declared intention to eject Iraqi forces from Kuwait. They were joined by air forces from Italy, Canada, the United Arab Emirate, Bahrain, and Qatar striking key strategic targets. In a display of military firepower and prowess never before witnessed, Iraqi forces were pulverized; but not before Iraq managed to set about 700 oil wells on fire, divert millions of gallons of oil into the Persian Gulf, and repeatedly bombard neutral Israel with a shower of explosive missiles. After 100 hours of ground war, the Iraqi army was in complete rout, fleeing for their lives back to Iraq as “the largest single American military offensive since World War II” was brought to a halt. [60]

Saddam Hussein didn’t see things quite that way. He saw the war as a record of honor in “an epic struggle between right and wrong . . . [,] between the oppressed poor and the unjust and opportunistic rich . . . [, and] between injustice and, deception and treachery on the one hand and fairness, justice, honesty and loyalty on the other.” [61] Vowing to fight on even after the retreat from Kuwait, he declared: “Victory is sweet with the help of God.” [62] Saddam’s views were, no doubt, shared by his many supporters in Iraq and other parts of the Arab world, who viewed themselves as the victims of American, and Israeli, aggression. President Bush called Saddam’s speech “an outrage.” [63]

 

On February 29, 1991, Iraq notified the United Nations that it would comply with all of the Security Council resolutions, including Resolution 660. The United States vowed to stay in Iraq until Baghdad complied with these resolutions, and held out the possibility of war crimes trials for Iraqi officers who took part in atrocities. A senior administration official suggested that Mr. Bush would probably not pursue charges against Saddam himself, a fact that Mr. Bush confirmed at a press conference the next day. This may not have encouraged Saddam to commit more crimes but it certainly could not have discouraged him either. [64]

 

Terms for a formal cease-fire still had to be agreed upon. Resolution 687, passed by the Security Council on April 3, 1991, demanded that Iraq recognize the agreed borders with Kuwait, destroy all its chemical and bacteriological weapons as well as all nuclear weapons materials, and accept on-site inspection. It was also required to renounce all acts of terrorism. [65]

 

Shortly after the Allied rout of Iraqi forces in Kuwait, Kurdish guerrillas as well as Shiite Muslims in southern Iraq – encouraged to do so by the United States – rose in revolt against Saddam. Using the residue of his army, now estimated at some 200,000 men, and deploying a large force of tanks and gunship helicopters that the Western allies had failed to destroy, Saddam turned his wrath against the rebels within his own country. The massacres of Shiites and Kurds were ruthless. It was reported that about a million women, children, and old people fled in terror toward Turkey and Iran, seeking safety from chemical bombs and strafing by vengeful Iraqi soldiers taking out their own frustration and fury on their own anti-Saddam compatriots. [66]

 

American troops were by then on their way home and the Bush administration hesitated to intervene in what was now described in Washington as Iraq’s “internal affair.” But public outcry against these massive violations of human rights was so great that Bush, who had compared Saddam to Hitler, was unable to stand on the sidelines while Iraq murdered its Kurdish and Shiite minorities. [67] A group of Iraqi intellectuals who had acquired American citizenship called upon President Bush to use U.S troops that were still in occupied southern areas of Iraq to prevent the minorities from being butchered. They also called for the trial of Saddam Hussein by an international tribunal for crimes against humanity in Iraq and Kuwait. [68]

 

At the United Nations, Iraq’s repression of the Kurds – as well as the Sunni and Shiite Moslems – was roundly condemned. The French representative put it best: “Violations of human rights such as those now being observed become a matter of international interest when they take on such proportions that they assume the dimension of a crime of humanity. That is indeed what is happening in Iraq. [69] Ambassador Pickering noted that it was not the intention of the Council to interfere in the internal affairs of any country; President Bush authorized blankets and other relief supplies to be air-dropped to the suffering civilians. The Soviet representative, not inclined to argue with the United States, agreed that interference in internal affairs was impermissible but noted that nations should not remain indifferent. He urged humanitarian assistance. The brutal repression of civilian populations was condemned by many Council members. [70]

 

In Security Council Resolution 688, members of the Council stated that they were “[g]ravely concerned” and “[d]eeply disturbed by the magnitude of the human suffering involved,” and then went on to demand that Iraq stop the oppression and allow humanitarian organizations to help the victims. [71] United States Secretary of State Baker, who visited the scene of nearly a million terrorized refugees fleeing to barren hills for their lives while being strafed and bombarded with napalm by Iraqi planes, referred to Iraq’s oppression of the Kurds as “a tragic crime,” but he added that it was “up to the international community as a whole to do something about it.” [72] U.N. experts cited the 1958 Convention on the Prevention and Punishment of the Crime of Genocide, pursuant to which member countries undertook to prevent and punish genocide as a crime under international law. [73]

 

Despite the many public declarations in support of trials, no one initiated the necessary measures to bring the responsible parties to account in a court of law. Those who had the power to act chose not or dared not to turn to the Nuremberg principles and the enforcement of international law. It was sadly ironic that a great military victory won by brave young people fighting in distant lands would be followed by a great human rights disaster and a lack of legal courage by their political leaders back home to vindicate the violated rights.

 

It should not have been too surprising when Iraq failed to comply with U.N. resolutions demanding access to Iraq’s chemical, biological, and nuclear weapons facilities. Security Council complaints of Iraqi deception were met with bland denials. [74] U.N. inspection teams uncovering proof of Iraq’s duplicity despite Iraqi attempts to conceal the truth. Iraq’s perfidy was revealed and condemned by the Council. [75] Despite the U.N. protests, Saddam Hussein, who evaded punishment for the invasion of Iran and the use of poison gas against Kurds and Iran in the 1980-1990 war, continued to thumb his nose at the world body with personal impunity.

 

V. AN INTERNATIONAL TRIBUNAL TO DEAL WITH GULF WAR CRIMES

The powers nations of the world were well aware of the possible legal recourse against Saddam Hussein. The Nuremberg precedent was there for all to see. The Nuremberg principles had been recognized as binding international criminal law. If a new international tribunal was needed to try those who flouted the laws of the world, there was no real difficulty in creating such a court. [76]

 

Many international legal societies have for many years been advocating the creation of an International Criminal Court. [77] The American Bar Association as well as several members of the United States Congress have come out publicly in favor of an international penal tribunal to deal with terrorists or other international criminals. [78] Many professors of International Law have advocated the establishment of an international criminal tribunal. [79] A colloquium of legal experts, convened at New York University Law School on March 27, 1991, also favored a war crimes trial under UN auspices. [80]

 

Former Nuremberg prosecutors and other staff members, who gathered at a reunion in Washington, D.C. on March 23, 1991, concluded with a resolution calling upon the United Nations, the United States, and its coalition partners to “take all appropriate action to investigate, indict, prosecute, and punish those Iraqi nationals who have planned and prosecuted an Aggressive War against Kuwait or committed War Crimes or Crimes Against Humanity . . . in violation of the Nuremberg Principles. . . .” [81]

 

Diplomats, as usual, were much more diplomatic; if they said anything at all, it was rather vague and indirect. Many made reference to aggression, but only the German Foreign Minister Hans Dietrich Genscher spoke out loud and clear. Referring to the persecution and threatened genocide, war crimes and environmental criminality can be prosecuted and punished.” [82] Nuremberg had apparently made a big impression on the German leader.

 

But no nation – none – moved to put the item on the UN agenda! Without such action, the UN was unable to move. The subject was left to the plodding of the ILC, where the creation of code of international crimes moves forward ever so slowly and the hopes for an international court to punish the most atrocious of all international crimes remain a distant dream.

 

VI. CONCLUSION

Fundamentally, the failure of nations to build on the Nuremberg precedents has been due to an absence of will on the part of decision makers. This is not to suggest that a problem cannot be found for every solution of that the road to general acceptance and enforcement of the law laid down at Nuremberg will be a quick or easy one. [83] In the long run, it will depend upon the power of the people to understand what is required and to persuade those who now control their destiny to take the necessary action.

 

As long as the Soviet Union and the United States were engaged in a cold war, there was no hope that any significant progress could be made. The Soviet Union adamantly refused to accept the jurisdiction of any international tribunal as a derogation of its national sovereignty. That changed with the advent of Mikhail Gorbachev’s glasnost and perestroika and with this former Soviet leader’s call for a more secure world including binding jurisdiction of the International Court of Justice and a “universal legal order which will ensure the primacy of international law in politics.” [84]

 

A significant manifestation of the change was the ability of the two former superpower rivals to agree upon action to repel the aggression of Iraq in Kuwait. For the first time, the Security Council was able to carry out its enforcement obligations as originally intended in the UN Charter. Leading statesmen have been calling for a “New World Order” in which the rule of law and not he law of the jungle will govern the conduct of nations. [85] There is thus basis for renewed hope that constructive change will take place.

 

One of the essential components of any legal order is a court to determine the merits of both charges and defenses. A self-appointed sheriff or posse to mete out instant justice can be very dangerous. In the absence of an independent, impartial, and fair tribunal, there is only “wild-west” in place of law-abiding should have nothing to fear, and those who are guilty should alter their conduct or be held accountable.

 

Yet, even after the aggressions, genocide, and atrocities of World War II, there were those who argued against international trials. They feared that the court would become a podium for propaganda and that the allies themselves – or some of them – might be accused of having committed similar crimes. Since the days of the Magna Carta, sovereigns had been on notice that they too were obliged to respect the law or face the consequences. IT was the United States that insisted, to its everlasting credit, upon a trial and the rule of law as the governing principle between nations.

 

To be sure, Saddam Hussein and his Governing Council might argue that Iraq’s occupation of Kuwait was justified: the borders has been fixed by an imperialist power; Kuwait was justified: the borders had been fixed by an imperialist power; Kuwait had provoked Iraq by unfairly rigging oil prices; Arabs were being exploited by Gulf States concerned with only with their own wealth; Iraq was fighting Israel and Zionism to liberate Palestinians; others go untried for similar actions; U.S. bombing, which killed 300,000 Iraqis and destroyed their entire infrastructure, exceeded the bounds of proportionality and military necessity and went beyond the limits authorized by UN resolutions; and so forth. [86] Such arguments were heard at the United Nations before the Security Council decided, in effect, that the attack on a friendly Arab state was an act of criminal aggression meriting sanctions by the entire international community.

Of course, international laws, if they are to have meaning, must be clear and must be respected universally. It is not enough merely to pay lip service to the principles and precedents of Nuremberg. The ideals therein enshrined must become a living reality in a peaceful world. Hypocrisy must give way to sincerity. Politics must yield to principle. Lawlessness must be controlled by law. Until that happens, innocent people everywhere will continue to live and die in fear.

Let us recall the concluding statement of Justice Robert Jackson to the International Military Tribunal at Nuremberg: “If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.” [87]

 

[1] G.A. Res. 94 (I), UN GAOR, 1st Sess., Resolutions at 188, UN Doc. A/64/Add. 1 (1946), reprinted in 2 Benjamin B. Ferencz, AN INTERNATIONAL CRIMINAL COURT-A STEP TOWARD WORLD PEACE 127 (1980) [hereinafter FERENCZ, INT’L CRIMINAL COURT]. In 94 (I), the General Assembly referred to its obligations, under the UN Charter article 13(1)a, to encourage the “progressive development of international law and its codification.” Id.

[2] G.A. Res. 95 (I), UN GAOR, 1st Sess., Resolutions at 188, UN Doc. A/64/Add. 1 (1946), reprinted in 2 FERENCZ, INT’L CRIMINAL COURT, supra note 1, at 127. In 95 (I), reference was made to the trial of major war criminals before the International Military Tribunal created pursuant to a Charter drawn up by the four major victorious powers in London in August 1945 and to a similar Charter for the trail of war criminals in the Far East in January 1946. Id.

[3] Id.

[4] G.A. Res. 96 (I), UN GAOR, 1st Sess., Resolutions at 188, UN Doc. A/64/Add. 1 (1946), reprinted in 2 FERENCZ, INT’L CRIMINAL COURT, supra note 1, at 127-8.

[5] Id. At 128

[6] See, e.g., 1-2 FERENCZ, INT’L CRIMINAL COURT, supra note 1.

[7] 1 FERENCZ, INT’L CRIMINAL COURT, supra note 1, at 66-68.

[8] See id. At 1-65 (examining development of war norms prior to IMT Charter).

[9] CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL art. 6, reprinted in 1 FERENCZ INT’L CRIMINAL COURT, supra note 1, at 457-58.

[10] Id. arts. 7-13.

[11] Id. arts. 14-30.

[12] Id. arts. 6.

[13] Central Treaty for Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 93-94 L.N.T.S. 57. The Kellogg-Briand Pact, dedicated to the resolution of conflict by peaceful means, was ratified by more than 50 nations, including the United States, Germany, France, Great Britain, and Japan.

[14] See, e.g., DOCUMENTS ON THE LAWS OF WAR 10-12 (Adam Roberts & Richard Guelff eds., 1982) (“notion that individuals bear direct responsibility for violations of laws of war is one which arose with the development of the law”); 1-2 HOWARD S. LEVIE, THE CODE OF INTERNATIONAL ARMED CONFLICT (1986) (compiling law of international armed conflict in form of code).

[15] See generally MYRES S. MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961) (changing and evolving nature of international armed conflict in form of code).

[16] CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL arts. 6-8, 12 reprinted in 1 FERENCZ, INT’L CRIMINAL COURT, supra note 1, at 457-58; see also Benjamin B. Ferencz, Crimes Against Humanity, in 8 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 107-09 (1985) (distinguishing crimes against humanity from war crimes and felonies and discussing current problems in implementation of sanctions).

[17] Trial of the Major War Criminals Before the International Military Tribunal (Nov. 1945-Oct. 1946) [hereinafter IMT Judgment], extracts reprinted in 1 FERENCZ, INT’L CRIMINAL COURT, supra note 1, at 469-86; see also NAZI CONSPIRACY AND AGGRESSION, OPINION AND JUDGMENT (US Gov’t Printing Office 1947).

[18] ROBERT H. JACKSON, THE CASE AGAINST THE NAZI WAR CRIMINALS 3, 7 (1946); see also Whitney R. Harris, Justice Jackson at Nuremberg, 20 INT’L LAW. 867, 867-96 (1986) (reviewing contributions by Justice Jackson and associates at Nuremberg to international law of crime).

[19] See Benjamin B. Ferencz, Nuremberg Trial Procedure and the Rights of the Accused, 34 J. CRIM. L. & CRIMINOLOGY 144, 144-52 (1948).

[20] THE NUREMBERG TRIAL AND INTERNATIONAL LAW (George Ginsburgs & V.N. & V.N. Kudriavtsev eds., 1990); TELFORD TAYLOR FINAL REPORT TO THE SECRETARY OF THE ARMY ON THE NUREMBERG WAR CRIMES TRIALS UNDER CONTROL COUNCIL LAW No. 10 (U.S Gov’t Printing Office 1949); NORMAN E. TUTOROW, WAR CRIMES, WAR CRIMINALS AND WAR CRIMES TRIALS, ANNOTATED BIBLIOGRAPHY AND SOURCE BOOK (1986).

[21] C. John Colombos, Introduction to JEREMY BENTHAM, PLAN FOR AN UNIVERSAL AND PERPETUAL PEACE 3 (Peace Book Company, 1939).

[22] League of Nations Covenant pmbl., reprinted in 1 BENJAMIN B. FERENCZ, DEFINING AGGRESSION – THE SEARCH FOR WORLD PEACE 61 (1975) [hereinafter FERENCZ, AGGRESSION].

[23] See LEAGUE OF NATIONS, COMMITTEE OF EXPERTS FOR THE PROGRESSIVE CODIFICATION OF INTERNATIONAL LAW (1925-1928) (Shabtai Rosenne ed., 1972) (minutes of Committee’s first four sessions and documents containing principal reports in years 1926-1928); see

[24] 2 GEORG SCHWARZENBERGER, INTERNATIONAL LAW, AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 546 (1968).

[25] JULIUS STONE, CONFLICT THROUGH CONSENSUS, UNITED NATIONS APPROACHES TO AGGRESSION (1977); see also Robert Rosenstock, The Declaration on Principles of International Law Concerning Friendly Relations, 65 AM. J. INT’L L. 713(1971) (paragraph-by-paragraph analysis of language of declaration and considerations underlying choice of language).

[26] See 1-2 FERENCZ, AGGRESSION, supra note 22 (documenting attempts to define aggression).

[27] Benjamin B. Ferencz, The United Nations Consensus Definition of Aggression: Sieve or Substance, 10 J. INT’L LAW & ECON. 701, 709 (1975).

[28] Id. at 711

[29] Id. at 711-712

[30] Id.

[31] These goals include self-determination, economic justice, and freedom from alien occupation.

[32] G.A. Res. 34/145, UN GAOR, 34th Sess., Supp. No. 46, at 244, UN Doc. A/34/46 (1979); G.A. Res. 34/146, UN GAOR, 34th Sess., Supp. No. 46, at 245, UN Doc. A/34/46 (1979); G.A. Res. 3166, UN GAOR, 28th Sess., Supp. No. 30, at 244, UN Doc. A/9030 (1973).

[33] 1 A TREATISE ON INTERNATIONAL CRIMINAL LAW (M. Cherif Bassiouni & Ved P. Nanda eds., 1973); M. CHERIF BASSIOUNI, INTERNATIONAL CRIMINAL LAW, A DRAFT INTERNATIONAL CRIMINAL CODE (1980); 2 FERENCZ, INT’L CRIMINAL COURT, supra note 1, at 547-637; see also United Nations Sixth Committee Draft Resolution on Terrorism, Doc. A/C.6/46/L.4 para 15 (Oct. 28. 1991).

[34] See 1-2 BENJAMIN B. FERENCZ, ENFORCING INTERNATIONAL LAW – A WAY TO WORLD PEACE (1983); BENJAMIN B. FERENCZ, WORLD SECURITY FOR THE 21ST CENTURY (1991).

[35] See Benjamin B. Ferencz, The Draft Code of Offences Against the Peace and Security of Mankind, 75 AM. J. INT’L. 674, 674-79 (1981).

[36] See generally 1-2 FERENCZ, INT’L CRIMINAL COURT, supra note 1 (collecting documents concerning efforts to define international aggression and to establish international criminal court).

[37] See UN GAOR, 46th Sess., No. 10, UN Doc. A/46/10 (1991) [hereinafter ILC Report] (ILC reports, including most recent work of ILC 45th session ending July 19, 1991); see also John H. McNeill, Book Review, 85 AM. J. INT’L L. 227 (1990) (reviewing BENJAMIN B. FERENCZ, PLANETHOOD: THE KEY TO YOUR SURVIVAL AND PROSPERITY (1988)) (encouraging development of broad agreement on establishment of permanent international criminal court); Stephen C. McCaffrey, The Forty-Second Session of the International Law Commission, 84 AM. J. INT’L L. 930 (1990).

[38] See ILC Reports, supra note 37, Doc. A/46/405.

[39] UN SCOR, 46th Sess., Supp. No. 2, 2932d mtg. At 13, UN Doc. A/46/2 (1990) (statement of United States Ambassador Pickering). President Bush referred to the Iraqi attack as “naked aggression,” Invading Iraqis Seize Kuwait and Its Oil; US Condemns Attack, Urges United Action, NY Times, Aug. 3, 1990, at A1, and “vicious aggression” by “international outlaws and renegades.” The Iraqi Invasion, NY Times, Aug. 6, 1990, at A7.

[40] UN SCOR, 46th Sess., 2932d mtg., UN Doc. S/2932 (1990).

[41] Id.

[42] S.C. Res. 660, UN SCOR, 46th Sess., 2932d mtg. At 1, 27, UN Doc. S/PV.2932 (1990). Yemen, not having received instructions, did not vote. Id.

[43] UN SCOR, 46th Sess., 2933d mtg. At 1 UN Doc. S/PV.2933 (1990). Cuba abstained, charging that the United States had done the same in Panama and had not sought to impose sanctions against Israel when it occupied Palestinian and Lebanese territory or to impose sanctions against South Africa when it occupied Angola. Id. at 37-38. Yemen abstained, arguing that the matter should be settled among the Arab states themselves. Id. at 51-52.

[44] UN SCOR, 46th Sess., 2934th Mtg., UN Doc. S/PV.2934 (1990).

[45] S.C Res 662, U.N. SCOR, 46th Sess., Supp. No. 2, at 49, U.N. Doc A/46/2 (1990).

[46] S.C Res 664, U.N. SCOR, 46th Sess., Supp. No. 2, at 55, U.N. Doc A/46/2 (1990).

[47] U.N. SCOR, 46th Sess., 2937th mtg., U.N. Doc. S/2937 (1990) (press release, U.S. Mission to the U.N. statement in Security Council, Aug. 18, 1990).

[48] U.N. SCOR, 46th Sess., 2959th mtg., U.N. Doc S/21730 (1990); U.N. SCOR, 46th Sess., 2960 mtg., U.N. Doc. S/2960 (1990).

[49] See Report of the U.N. Mission, U.N. Doc. S/22535 (1991).

[50] U.N. Doc A/45/1035, S/22787 (1991).

[51] S.C Res 674, U.N. SCOR, 46th Sess., Supp. No. 2, at 90, U.N. Doc A/46/2 (1990).

[52] U.N. SCOR, 46th Sess., 2962d mtg., U.N. Doc S/2962 (1990).

[53] Id.

[54] U.N. SCOR, 46th Sess., 2963d mtg., U.N. Doc S/2963 (1990).

[55] Id.

[56] U.N. SCOR, 46th Sess., 2962d mtg., U.N. Doc S/2962 (1990).

[57] U.N. SCOR, 46th Sess., 2962d mtg., U.N. Doc S/2962 (1990). It was the United States’ turn to be in the Chair, and Secretary of State James Baker presided. Thirteen other Council members were represented by their Foreign Ministers, attesting to the significance of the assemblage. Mr. Baker called upon nations to “meet the threat to international peace created by Saddam Hussein’s aggression.” Id. Foreign Minister Shevardnadze of the Soviet Union warned that “failing to reverse the aggression would mean even greater hardship for the world . . . . Our common future is threatened . . . . We are serving [the Iraqi leaders] with a special warning about their personal responsibility for the fate of foreign nationals in Iraq. Endangering their lives will be regarded as a crime against humanity, with all the consequences that entails. Id.

[58] S.C. Res. 678, U.N. SCOR, 46th Sess., Supp. No. 2, at 97, U.N. Doc. A/46/2 (1990). Cuba and Yemen voted against Resolution 678. China abstained, which later gave rise to the argument that since the Charter, in article 27(3), required “the concurring votes of the permanent members,” China’s failure to cast a concurring vote rendered the resolution invalid. This objection ignored the fact that the Council had decided in many prior cases that the Charter was not to be taken literally and that failure to vote was a procedural matter which the Council was authorized to interpret as not negating the binding nature of a resolution. See 2 U.N. REPERTORY OF PRACTICE OF U.N. ORGANS art. 27(3), U.N. Sales No. 1955.V.2 (1955).

[59] See U.N. Doc. S/22132 (1991).

[60] Andrew Rosenthal, War in the Gulf: The American President; Bush Halts Offensive Combat; Kuwait Freed, Iraqis Crushed, NY Times, Feb. 28, 1991, read: “BUSH HALTS OFFENSIVE COMBAT; KUWAIT FREED, IRAQIS CRUSHED.” President Bush’s address to the nation reported that it was not merely a victory for Kuwait and the coalition partners, but “a victory for the United Nations, for all mankind, for the rule of law and for what is right.” War in the Gulf: The White House, NY Times, Feb 28, 1991, at A12.

[61] War in the Gulf: The Iraqi Leader; Saddam Hussein’s Speech on the “Withdrawal” of His Army from Kuwait, N.Y. Times, Feb. 27, 1991, at A20.

[62] Id.

[63] Andrew Rosenthal, War in the Gulf: The American President; Allied Units Surge Through Kuwait; Troops Confront Elite Force in Iraq; Bush Spurns Hussein’s Pullout Move; Surrender Demand, N.Y. Times, Feb. 27, 1991, at A1.

[64] Andrew Rosenthal, After the War; Truce Holds, but U.S. Vows to Stay in Iraq Until Baghdad Meets Allies’ Peace Terms, N.Y. Times, Mar. 1, 1991, at A8; After the War: The White House; Excerpts from Bush’s News Conference on Postwar Plans. N.Y. Times, May. 2, 1991 § 1, at 5.

[65] S.C. Res. 687, U.N. SCOR, 46th Sess., Supp. No. 2, at 137, U.N. Doc. A/46/2 (1991).

[66] Alan Cowell, After the War; Kurdish Refugees, by Thousands, Flee Vengeance of the Iraqi Army, N.Y. Times, Apr. 4, 1991, at A1.

[67]

[68] Clifford Krauss, After the War; baker Aide Talks with Iraqi Dissidents in the U.S., N.Y. Times, Apr. 4, 1991, at A10.

[69] U.N. SCOR, 46th Sess., 2982d mtg., U.N. Doc. S/2982 (1991).

[70]

[71] S.C. Res. 688, U.N. SCOR, 46th Sess., U.N. Doc. S/2982 (1991).

[72] Thomas L. Friedman, After the War; Baker Sees and Hears Kurds’ Pain in a Brief Visit at Turkish Border, N.Y. Times, Apr. 9, 1991, at A1, A12.

[73] Alan Riding, After the War; Europeans Urging Enclave for Kurds in Northern Iraq, N.Y. Times, Apr. 9, 1991, at A1.

[74] U.N. SCOR, 46th Sess., 2995th mtg., U.N. Doc. S/2995 (1991).

[75] S.C. Res. 707, U.N. SCOR, 46th Sess., 2962d mtg., U.N. Doc S/2962 (1990).

[76] See 1-2 FERENCZ, INT’L CRIMINAL COURT, supra note 1; TOWARD A FEASIBLE INTERNATIONAL CRIMINAL COURT (Julius Stone & Robert K. Woetzel eds., 1970), reviewed by Benjamin B. Ferencz, 66 AM. J. INT’L L. 213 (1972). The Foundation for an International Criminal Court, headed by the late Professor Robert Woetzel, convened a conference at Talloires, France in May 1991. Members of the ILC, other UN officials, and Prime Minister A.N.R. Robinson of Trinidad and Tobago, who had been the prime mover in putting the issue back on the UN agenda, attended. It took them only a few days to produce drafts of a code of crimes and statutes for an interim as well as a permanent international criminal court (unpublished).

[77] Professor M. Cherif Bassiouni of De Paul University, as President of the International Association of Penal Law and the International Institute of Higher Sciences (ISISC) of Siracusa, Italy, has been in the recent forefront of some of these efforts. The Institute submitter a Draft Statute for an International Criminal Tribunal to the Eighth UN Congress on the Prevention of Crime, which met in Havana from August 27 to September 7, 1990. UN Doc. A/CONF. 144/NGO ISISC. The World Federalist Association of Washington DC has also been a strong advocate of an International Criminal Court and published a comprehensive report prepared by Doctor Bryan F. MacPherson at the end of 1991.

[78] See 136 CONG. REC. S16, 216 (1990). Senator Arlen Spector, Republican from Pennsylvania, sponsored a bill calling for the creation of an international criminal court. Id.; see also 135 CONG. REC. H527 (1989) (Congressmen Leach of Iowa and Robert W. Kastenmeier support the creation of an International Criminal Court).

[79] Professors Anthony D’Amato of Northwestern University, Ved P. Nanda of the University of Denver, and Christopher Blakesley drafted statutes for a regional criminal court. Professor Louis R. Beres of Purdue University has specifically called upon the United States to take the lead in preparing international legal machinery for the prosecution of Iraqi crimes during the Gulf War. Louis R. Beres, The United Sates Should Take the Lead in Preparing International Legal Machinery for Prosecution of Iraqi Crimes, 31 VA. J. INT’L L. 381, 381-89 (1991).

[80] Gulf War and International Criminal Conference, co-sponsored by New York University School of Law, Jacob Blaustein Institute for the Advancement of Human Rights, The International League of Human Rights, and the American Bar Association – Section of International Law and Practice (Apr. 30, 1991).

[81] 137 CONG. REC. S5439 (daily ed. May 7, 1991) (Nuremberg reunion); see also Benjamin B. Ferencz, The Nuremberg Precedent and the Prosecution of State-Sponsored Mass Murder, 11 N.Y.L. SCH. J. INT’L & COMP. L. 325, 325-32 (1991); Will Saddam Survive?, THE DIPLOMATIC WORLD BULL., May 6-13, 1991, at 2 (editorial).

[82] UN GAOR, 46th Sess., at 29-30, UN Doc. A/46/PV.8 (1991).

[83] See Michael P. Scharf, The Jury is Still Out on the Need for an International Criminal Court, 1 Duke J. COMP. & INT’L L. 135 (1991).

[84] Mikhail Gorbachev, Reality and Safeguards for a Secure World, PRAVDA, Sept. 17, 1987, translated in UN GAOR, 42d Sess., UN Doc. A/42/574. S/19143 (1987).

[85] See address to the Nation Announcing Allied Military Action in Persian Gulf, 27 WEEKLY COMP. PRES. DOC 50 (Jan 21, 1991) (President George Bush); French President Mitterand’s Address to the UN General Assembly, UN GAOR, 45th Sess., Doc. A/45/PV/4 (1990).

[86] Former United States Attorney General Ramsey Clark drafted an “Initial Complaint” against George Bush and other US leaders, dated May 9, 1991, which was submitted to the Legal Division of the United Nations. At about the same time, Professor Ved. Nanda of the University of Denver College of Law, together with Luis Kutner, Chairman of the World Habeas Corpus Committion for International Due Process of Law, submitted an indictment against Saddam Hussein and his advisors. Both drafts relied on the Nuremberg principles. Because they lacked any official standing, no UN action could be based on them. See UN GAOR, 46th Sess., Doc. A/46/PV.13 (1991) (Iraq charge against United States). “We call upon the international community through this forum and through the other regional and international organizations to condemn that criminal act, investigate it and hold its perpetrators fully responsible.” Id. at 38.

[87] 19 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 432 (1948).

 

 

 

 

 

 

 

 

An International Criminal Code and Court: Where They Stand and Where They're Going

 

By Benjamin B. Ferencz

published: April 1992

source: The Columbia Journal of Transnational Law, Vol. 30, 1992, Number 2

 

BACKGROUND

For almost fifty years, nations were unable to agree upon a definition of international aggression. It was easier to commit aggression than to define it. Writing in this journal in 1973, I concluded; “The time for political decision and action has arrived. The most important thing about defining aggression is to define it.” The following year a census definition of aggression was finally reached by the United Nations.

 

The U.N. definition was vague and unenforceable, yet it had great significance. It was a sieve, but it also had substance. It reflected a persistent hope, if not determination, that the aggressive actions of sovereign states could be curbed by a rule of law. Moreover, it cleared the way for nations to resume work creating a draft code of offenses against the peace and security of mankind as well as an international criminal court.

 

The work was initiated in 1946 by the first General Assembly of the United Nations which decided that the important principles and precedents created by the Nuremberg Charter and Judgment of the International Military Tribunal at Nuremberg should serve as the basis for further codification of international law. The committee designated to codify international criminal offenses decided to seek the advice of an international law commission (ILC) that was still to be created. The Assembly agreed to classify genocide as an international crime, but could not reach a consensus to create a court to punish that or any other international offense. That question was referred to the new ILC in 1948.

 

It was 1950 before the ILC had an initial report on a draft code. In it, the ILC reaffirmed the crimes enumerated in the Nuremberg Charter – aggression, war crimes, and crimes against humanity – as international crimes. The Nuremberg principles that Heads of State and accomplices were not free of responsibility, that acting under superior orders was not an excuse if moral choice was possible, and that the accused was entitled to a fair trial were all endorsed by the ILC report.

 

A Soviet proposal that aggression be defines was also referred to the ILC by the U.N. General Assembly – the same Assembly that has described aggression as “the gravest of all crimes against peace and security throughout the world.” Despite the work of several Special Committees, the attempt of nations to agree upon a definition of aggression elicited more aggression than definition.

 

By the end of 1954, the General Assembly decided that further action on an international criminal code and the establishment of international criminal law jurisdiction be postponed pending agreement on a definition of aggression – which was nowhere in sight. According to the majority, the time was not yet ripe, and here was no purpose in trying to reach agreement about an international criminal code or court as long as the principal international crime, aggression, was not yet defined. Without such definition there could be no code; without a code there was no need for a court. Everything was thus linked, and finally put on ice. The chilling winds of the ideological cold war between the Soviet Union and the United States kept the process frozen for twenty years.

 

During this period, the need for some improved legal mechanism to control the violent behavior of nations became apparent to many people. The war in Vietnam illustrated the enormous devastation and futility of modern warfare. Airplane hijacking and terrorism seemed to run rampant. Apartheid and other human rights violations remained unchecked. Incessant internal and external wars threatened the security of people everywhere. Public demand for corrective action began growing.

 

When détente began to melt the walls between the superpowers, it became possible for an international consensus to define aggression. Thus, the stated barrier to resuming work on a code of crimes and the international criminal court was removed, and nations presumably could move toward creating a more effective rule of law.

 

Independent legal experts from various parts of the world, working free from the constraints of national and international politics, drafted codes of crimes and statues for an international criminal court. The U.N. responded with new, albeit ambiguous, resolutions – the best that could be done to achieve consensus along sovereign states with differing perceptions of what was permissible intentional behavior.

 

THE DRAFT CODE OF INTERNATIONAL CRIMES TAKES A STEP FORWARD

By the end of 1977, several states requested that the draft code again be replaced on the U.N. agenda. By 1978, the topic was being debated in the Sixth Committee. In 1980, it was clear from the statements of the 61 delegates who took the floor that the overwhelming majority were in favor of codifying international criminal law – despite the opposition of skepticism of many Western nations. For the reluctant minority on the Sixth Committee, unable to kill the code idea completely, the next best policy was to stall as long as possible and then refer the topic back to a somnolent ILC where it had rested peacefully since 1954.

 

In 1982, the ILC appointed Mr. Doudou Thiam, a former Minister of Senegal with no special expertise in international criminal law, as Special Rapporteur for the draft code. Each year thereafter he issued reports describing problems or offering drafts of the provisions being debated by members of the Commission. As might have been expected, the code was going practically nowhere.

 

A major breakthrough in the political climate occurred when General Secretary President Gorbachev announced a new policy calling for a world-wide comprehensive security plan which included strengthening the rule of law and acceding to the jurisdiction of international courts. However, perestroika brought the advent of new freedoms and was soon followed by such radical changes in the Soviet system that the USSR was no longer perceived as a significant military threat to vital western interests. The door opened for cooperation between the Soviet Union and the United States.

 

When, in 1990 Iraq invaded Kuwait and claimed Kuwait’s territory as its own, the Security Council was able for the first time to act collectively in an effort to stop aggression. After diplomatic efforts failed, coalition armies, led by the United States, used efforts failed, coalition armies, led by the United States, used devastating, military power and drove Iraq out of Kuwait. World leaders began to speak about a “New World Order” where the rule of law would replace the law of the jungle. The new political atmosphere made it easier to approach the problems of a draft code of crimes and an international criminal court in a more rational and objective way. Hopes were aroused that the law of force might be replaced by the force of law.

 

By July 1991, the ILC under pressure to produce something, succeed in completing a first reading of a draft code of crimes against the peace and security of mankind. It was, admittedly, an imperfect instrument, but it was intended to enable states to focus more clearly on the many issues that would have to be resolved before the code could become an accepted reality.

 

The draft of the twenty-six articles was divided into two parts. Part I defined and characterized the crimes and enunciated certain general principles. Stated offenses were all crimes against the peace and security of mankind even punishable under the internal law of a state (Articles 1, 2). Individuals, including those who aided, abetted or attempted the crime, would be held responsible (Article 3). The general principles stipulated that virtuous motives would not excuse an offense; states would be responsible for their acts and for their omissions; and states would be obliged to either try or extradite the accused (Articles 4, 5, and 6). No statute of limitations would apply; fair trial would be mandatory; as further protection, there would be no double jeopardy or retroactive application of the code except for deeds which were previously recognized as international crimes (Articles 8, 9, and 10). The order of a superior would not excuse the crime, nor would the superior be relived of responsibility – regardless of official position (Articles 11, 12, and 13). Finally, the hearing court would decide about permissible defenses and extenuating circumstances (Article 14).

 

Part II of the ILC’s draft code enumerated the specific crimes covered by the code: an act or threat of aggression “by a State”; intervention in the internal affairs of a state; colonial or alien domination; genocide; apartheid; systematic or mass violations of human rights; “exceptionally serious” war crimes; recruitment, use, financing and training of mercenaries; international terrorism; illicit traffic in narcotic drugs; and willful and severe damage to the environment (Articles 15 through 26).

 

To be sure, the ILC code was far from complete or free of ambiguity. When these proposals came before the Sixth Committee, the delegates heaped their customary praise on the Special Rapporteur for his skill in making such remarkable progress but then proceeded to point out the many shortcomings in the draft.

 

Some of the clauses were too broad or too vague. For example, a State is said to be the “main victim” of the crimes covered (Article 9) superior orders were no excuse if it was possible for the perpetrators “not to comply” (Article 11); a threat of aggression is a crime only if there was a “good reason” to believe that the aggression was “being seriously contemplated” (Article 16). There are vague references to “any other form of alien domination (Article 18), “exploitation” of labor of “members of a racial group” (Article 20), violating human rights “in a systematic manner or on a mass scale” (Article 21), “exceptionally serious” war crimes, and “use of unlawful weapons”” (Article 22). These references are not specific enough to be useful in a criminal code. Crimes such as “tolerating acts” of a nature “to create a state of terror in the minds of public figures, groups of person or the general public” (Article 24), “encouraging illicit traffic in narcotic drugs on a large scale” (Article 25), or doing “long-term and severe damage to the natural environment” (Article 26) and others are not defined at all.

 

Many of these vague or ambiguous expressions derived from political declarations or conventions with terminology dictated by the drive for consensus but totally inadequate to meet the standards of precision and clarity required by a penal statute designed for the fair trial and conviction of individual malefactors. How were the prior instruments, and their definitions, to be related to the code? On some issues, bilateral and multilateral treaties already in existence would also have to be taken into account.

 

One of the problems that would certainly have to be clarified related to the role of the Security Council in dealing with the prosecution of the crime of aggression. Article 39 of the U.N. Charter assigns to the Security Council the responsibility for determining the existence of any act of aggression. The consensus definition of aggression, following the Charter, did the same. Yet the Council was not a judicial but a political body some of whose members, indeed those most capable of committing aggression, held a veto power. How could the veto power and the prosecutorial role of the Security Council be reconciled with a fair and impartial trial? The question was raised by the ILC, but no answers were offered.

 

In the rather understated words of the ILC itself, the draft was “still open to some improvements, which can be made on second reading, with the benefit of further points made in the comments and observations of Governments.” Despite severe infirmities, no one suggested that the draft was dead on arrival and could not be resuscitated. It would be fair to conclude that most nations regarded the 1991 first draft of a code of crimes against the peace and security of mankind as encouraging, if faltering, step in the right direction.

 

PROGRESS STALLED IN ESTABLISHING AN INTERNATIONAL CRIMINAL COURT

Attempts to create an international criminal court to deter aggression and terrorism began in the days immediately fo9llowing World War I. Such a court was recommended by a distinguished Committee of Jurists and by many other legal scholars, led by a Romanian Professor, Vespasian V. Pella, who wrote extensively on the subject. He prepared detailed draft statutes for an international criminal court to be attached to a 1935 draft convention against Terrorism and to the 1947 Secretariat draft of the Genocide Convention. Despite extensive support for an international criminal court by impartial legal scholars and several international law societies, the combined efforts were in vain. Sovereign states were simply not ready to subject themselves or their citizens to the judgment of independent tribunals.

 

The situation changed, at least for a while, after the genocide and atrocities of World War II were disclosed. The western public cried out for action and the United States led the demand for an international criminal court to try the Nazi criminals. The first draft of the necessary legal instrument was prepared by the United States on April 30, 1945 – even before the war was officially over. Formal negotiations began in London on June 26, 1945 – the very same day that the U.N. Charter was signed in San Francisco.

 

The legal instrument establishing the International Military Tribunal (IMT) and codifying the legal principles, under which it was to operate, consisted of thirty brief articles. It set forth in clear terms how the court was to be constituted, its jurisdiction, the principles of law to be applied, how crimes were to be investigated and prosecuted, the guarantees for fair trail as well as procedures for judgment and sentencing. It took the four Allied Powers, The United States, Britain, the Soviet Union, and France, less than six weeks of formal negotiations in London to reach the final agreement on the important code of international crimes and the milestone international criminal court.

 

Despite minor criticisms, that historic agreement was affirmed unanimously by the United Nations (Res.95 (I)) and has earned the general respect of the world community. Admittedly, the public pressures for the trail of major Nazi war criminals was enormous; the story of the International Military tribunal was a clear demonstration that a viable code and court can be created in a very short time – if there is the political will to do so.

 

Unfortunately, in the turbulent years following World War II, filled with ideological conflict and violence, some sovereign states, particularly those with military power, were not prepared to live by a universally binding rule of international criminal law. The United States in particular often seemed to have forgotten the lessons it tried to teach the rest of the world at Nuremberg.

 

Moral leadership in advancing the rule of law passed to smaller states. Ricardo J. Alfaro, former President of Panama, and later Judge on the International Court of Justice in the Hague, was appointed a Special Rapporteur of the International law Commission in 1950. He completed a comprehensive study and thoughtful analysis of the problems related to creating an international criminal court. He concluded: “If the rule of law is to govern the community of States and protect it against violations of the international public order, it can only be satisfactorily established by the promulgation of an international penal code and by the permanent functioning of an international criminal jurisdiction.

 

Although the vast majority of the Commission was convinced that such a code and court were both desirable and feasible, the co-Rapporteur Mr. Sandstrom of Sweden noted in opposition that “the time cannot as yet be considered ripe for such an organ.” He was unfortunately right. The General Assembly’s creation, a Committee on international Criminal Jurisdiction, produced thoughtful studies, interesting debates and reports as well as statuettes for an international criminal court, but no consensus was possible other than on a decision to defer action pending agreement on a code of international crimes. The code in turn depended on reaching consensus on the definition of aggression, which in turn depended upon agreement among the ideological rivals, which in turn depended on public pressure.

 

In any event, by 1989 there was a marked change. Trinidad and Tobago, ravaged by drug traders who terrorized local judges, and inspired by its Harvard-educated Prime Minister A.N.R. Robinson, a long-time advocate of international criminal jurisdiction, led a coalition of Caribbean states in calling for an international court to deal with drug trafficking and other international crimes. Despite U.S. opposition, the General Assembly made an unprecedented request to the International Law Commission: prepare a report5 on international criminal court within one year. An ILC-member, Professor C. McCafferty, reported in 1990 that on the Commission there was “broad agreement, in principle, on the desirability of establishing a permanent international criminal court within the United Nations system…. The international climate now appears particularly favorable for the establishment of such a court…. And it would be unfortunate if the opportunity were lost.

 

The Commission recognized, of course, that to be successful such a court would require wide support by the international community. Many nations that had previously seemed to oppose such a court now seemed to be shifting positions. The hesitant position of the United States, a key player, remained perplexing.

Despite the favorable reports from the ILC, the views of the United States regarding both code and court were essentially negative. In the Sixth Committee, the U.S. representative warned repeatedly that establishment of an international criminal court constituted a “real danger” since “the Court disrupt satisfactory implementation of the existing system.”

 

At that particular time, Iraq had completed the unlawful annexation of its peaceful neighboring state of Kuwait. Iraqi troops were busy murdering, torturing, raping, pillaging, burning and committing every conceivable war crime and atrocity against innocent civilians. At the same time, terrorism, drug trafficking and other crimes against humanity continued unabated. Why the United States thought the existing system was being satisfactorily implemented was not clear.

 

The crimes of Iraq’s President Saddam Hussein outraged people every7where, as evidenced by the repeated condemnations in the Security Council and the media. In a public television statement, President Bush warned Iraq to remember Nuremberg; Britain’s Margaret Thatcher (as well as Mrs. Bush) had been more explicit in calling for prosecution before a Nuremberg-type tribunal. Germany’s Foreign Minister Genscher, echoing earlier appeals, told the General Assembly: “We call for an international court of justice of the United Nations where crimes against humanity, crimes against peace, genocide, and environmental criminality can be prosecuted and punished.

 

Former Nuremberg Prosecutors, meeting at a reunion in Washington, issued a resolution calling upon the United Nations and all peace-loving nations to take action to prosecute and punish the criminals. On October 27, 1990, the U.S. Congress passed a law requiring t5hen President to report to Congress by Oct.1, 1991 “the results of his efforts in regard to the establishment of an International Criminal Court.” The sponsors of that law were clearly in favor of establishing an international criminal tribunal.

 

The ILC did not attempt to submit draft articles for an international criminal court in its reports of 1991. However, it did offers as a basis for consideration some provisional formulations and an extended commentary on two issues: 1) the court’s jurisdiction: how it could be conferred, whether it was concurrent or exclusive or for review only, which crimes would be dealt with by which courts, and whether states must somehow consent in advance; 2) the requirements for instituting criminal proceedings: whether by states or other entities, and the kind of Security Council action needed if aggression was charged.

 

The official response of the United States, as reflected in the Sixth committee, remained ambivalent, if not negative. U.S. representative Robert Rosenstock (soon to replace Professor McCafferty on the ILC) declared that an international criminal court was “an enormously complex and far-reaching endeavor, raising profound legal, political, and practical questions.” He called for more analysis by the ILC but thought that draft statute for the court would be premature and unwise. He asked whether there was a compelling need for such a tribunal, and cited the 1990 ILC Report, which referred to “the danger of disrupting satisfactory implementation of the existing system.” He failed to mention that his quotation of the ILC Report was nothing more than a reference to the p0rior United States position. Nor did he quote from the very next paragraph of the Report in which the Commission concluded: “It has now emerged that international crime has achieved such wide dimensions that it can endanger the very existence of States and seriously disturb international peaceful relations… A recognized advantage of an international court is the uniform application of the law with the best possible guarantees of objectivity to try these kinds of crimes.”

 

Instead, Rosenstock called for ratification of existing extradition conventions. He argued that states would resist handing terrorists and drug traffickers over to an international court; he implied that the creation of a court would have no practical impact. To support his argument he referred to the cases of two alleged terrorists, Hamadei and Rashid, held by Germany and Greece, both of which refused to extradite them to the United States. Rosenstock failed to mention that the reason those governments were paralyzed was that they feared for the safety of their own nationals being held hostage by terrorist groups, although this point was acknowledged by the State Department staffer Michael Scharf, the apparent author behind much of U.S. policy.

 

Rosenstock also argued that the court would inevitably be politically tainted, which would cause many problems. On the other hand, the jurisdiction requirements suggested in the ILC Report might require dozens of countries to agree before the court could hear a case, and would “effectively prevent almost any case from ever coming before such a court,” said Rosenstock. He also listed, as had Mr. Knox the year before, the problems of court composition, procedures, custody, investigation, evidence and punishment as well as “funding for a massive bureaucracy” which would have to be resolved; thus he implied that such problems were practically insoluble. However, such problems were solved in a few weeks when the IMT was created and have also been solved by dozens of other international courts all over the world. Suggested solutions appear in the numerous draft statutes for an international criminal court and in the Nuremberg proceedings published by the U.S. Government. In true diplomatic fashion, Rosenstock concluded that “The United States is not suggesting that these problems are insurmountable… The United States believes the question of establishing an international criminal court requires further study.

 

Mr. Rosenstock was, of course, merely the messenger for the United States government. A somewhat less ingenious statement appeared in the Department of State’s response to the Congressional mandate that required the Administration to report to Congress by October 1, 1991 the results of its efforts in regard to the establishment of an International Criminal Court. In a six-page letter, the Department put forth the same arguments on which Mr. Rosenstock had heavily relied. It cited only the views of those states that seemed opposed to a court and ignored the views of the majority that favored it. It cited U.S. government participation in international quasi-governmental for a in Siracusa, Italy and “Talloires, Geneva” [sic] and noted that “[d]uring these conferences, participants expressed doubt about the near-term prospects for a standing international criminal court…” It failed to note that the sponsors of both of those conferences were among the most determined and outspoken advocates for an international criminal court and their reports included drafts of statutes for it.

 

As for trying those responsible for “serious war crimes during the recent conflict in Iraq,” the Administration, as reported by the State Department, could not quite make up its mind. It was strongly suggested that trials by domestic courts, such s those in Kuwait, could best deal with Iraqi prisoners of war; similarly, the U.S. Code of military Justice allows the United States to try captured enemies. It apparently did not bother the Administration that such procedures might enable “kangaroo courts” to wreak their vengeance on minor offenders while the leaders, instigators and planners of the major crimes evaded justice. The United States remained “increasingly skeptical” about the possibility of achieving consensus on the numerous issues raised, and until acceptable solutions were found, the Administration believed “that the United States should not go on record in favor of such a court.”

 

Due in large part to the absence of supportive leadership by the United States, an international criminal court to cope with crimes that threaten the peace and security of humankind is going around in circles and getting nowhere. Several members of the ILC, recognizing that broad agreement existed in principle on the desirability of establishing a permanent international criminal court, urged that a small working group be set up which could, if the political will existed, bring the matter to a quick conclusion. As was to be expected, the Sixth Committee, without a vote, approved a draft resolution that invited the ILC to further analyze the issues. States were urged to submit their views on the draft Code of Offenses by the General Assembly which thereby sent the ILC back to the drawing board. Consideration of both court and code was thus postponed for still another year. 1992 was a year when some of the despair regarding the possibility of creating an international criminal court began to dissipate. The ILC was stirred from its lethargy as it reached out for a new regime of penal law. The continuation of massive international crimes that shocked the conscience of mankind gave rise to new protests and renewed demands that the criminals be brought to justice.

 

CONCLUSION: NEVER DESPAIR

Every civilized society is organized with clear laws – definitions of the permissible and impermissible – and courts to determine whether the laws have been violated. These two features of a society plus a system of effective law enforcement are linked and interdependent. To the extent that all three conditions prevail, there is relative tranquility; to the extent that they are absent, there is chaos. The prevailing international anarchy, reminiscent of America’s” Wild West,” must be replaced by an international system of law and order. President George Bush, addressing the General Assembly of United nations, called for “the rule of law rather than the resort to force… rather than anarchy and bloodshed…” As if to dispel suspicions that when he called for a “New World Order” in 1990 he was merely seeking to impose America’s own power on others, Bush assured the delegates in 1991 that “the United States has no intention of striving for a Pax Americana…. We seek a Pax Universalis built upon shared responsibility and aspirations.”

 

To be sure, the codification of principal crimes against the security of humankind and the creation of an international criminal court is not a simple matter. A serious effort to reconcile differing views and divergent legal systems and to find acceptable compromises will require diligence, dedication, skill and patience. The Nuremberg example, as well as the many other precedents created by relatively new international tribunals such as the European Court of Human Rights, the Court of the European Community, and the upcoming Law of the Sea Tribunal, demonstrate that given the political will, the codification and organization problems can be satisfactorily resolved. The basic problem remains: how does one get from here to there?

 

First, it is important to recognize that the notion of absolute state sovereignty is obsolete. ILC member Professor Graefrath wrote recently that “[I]n present day international law, sovereignty cannot be asserted to cover up crimes against the peace and security of mankind.” Every time a nation enters into a treaty regarding trade, disarmament or anything else, it cedes some of its rights. But it also gains something in return. The correct notion of sovereignty, the power of the sovereign to better serve his people, is not diminished by treaties but rather enhanced. In this age of high technology and economic interdependence, all nations must, and do, conform to international requirements. We see it most clearly in the areas of communications, transportation, economics, health care, and the environment where, in order to better serve their own citizens, states freely give up some portion of their independence. Without the illusion of absolute state sovereignty, agreements are reached on the basis of mutual and generalized benefit. Why should a nation, or any group, be free to decide for itself when it may attack peaceful neighbor, or commit crimes against humanity, use terrorism, or engage in other criminal acts that threaten the security of humankind? A system of planetary management can then be designed to yield at least minimum levels of security and human dignity to everyone.

 

Second, international law, to be worthy of its name, must be fair and universally applied – a Lex Universalis. It is one thing to subject your losing adversaries to trial and quite another to establish universally binding rules. When the United States took the initiative to establish the Nuremberg tribunals, its policy promised that the new international standards would apply to all nations equally. Justice Jackson put it best:

 

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put to our own lips as well…Civilization asks whether law is so laggard as the be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your judicial action will put the forces of International Law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will in all countries may have leave to live by no man’s leave, underneath the law.

 

Third, individual citizens, those who should be recognized as true sovereigns, must let it be known that in the nuclear and high technology age, a present system based on medieval concepts is no longer tolerable. The world, currently disorganized, allows aggression and genocide to be free from punishment, while states deliberately defile the environment free from liability. Innocent men, women and children are massacred while their murderers assert immunity from intervention by other states inn their internal affairs. Hostage-takers and other terrorists find sanctuary in friendly nations. Drug traffickers continue to plague humanity with impunity since nations remain either unwilling or unable to stop them. These are tragedies to the world. They mock and disgrace the international legal community. And all those who are prepared to endure such an irrational and inhumane system. If public opinion can be sufficiently aroused to demand change, there will be change. Only then can we look forward to a new and binding code of international crimes and the creation of an international criminal court as part of the President’s proclaimed “new world order, an order worth preserving for the ages.”

 

Despite the prevailing vacillation on the part of some states, there is reason to hope that significant progress can be achieved in the near future. When ILC Special Rapporteur Thiam presented his Tenth report, in March 1992, he devoted it entirely to the question of an international criminal jurisdiction. He noted the principal objections that had been raised against the court, but he presented arguments to refute the doubters and offered a number of alternatives to encourage consensus.

 

These alternatives were considered by the Commission in exquisite detail between May 4 and July 24, 1992. A wide range of opinion was heard regarding the law to be applied, the jurisdiction of the court, who could bring complaints, who could prosecute, the role of the Assembly and the Security Council, and a host of other issues that conceivably might arise. The diversity of views was impressive. There was always some meticulous lawyer who could find a problem for every solution.

 

Fortunately, the Commission decided to set up a 15-mmber working group to draft concrete recommendations. The Working Group elected Mr. Abdul G. Koroma of Sierra Leone as Chairman. After fifteen meetings, it submitted recommendations. Its report was praised as a highly valuable document even though it was perceived as “the minimum common denominator possible to achieve consensus.”

 

The Working Group reaffirmed the Commission’ conclusions – arrived at in 1950 and reiterated in 1990 – that it was possible to establish an international criminal court. Their recommendations included basic minimums: (I) An international criminal court should be established by a Statute in the form of a treaty; (ii) it should exercise jurisdiction over private persons rather than States in its first phase; (iii) jurisdiction should be limited to crimes defined in international treaties in force; (iv) in its first phase, at least, general compulsory jurisdiction should not be granted ipso facto by virtue of a State merely accepting the Statute, further agreement would be necessary; (v) the court would not initially be a standing full-time body, but an available legal mechanism that could be called into operation as required; and (vi) due process and impartiality must be guaranteed. According to the ILC, the time had come for the General Assembly to decide whether the Commission should proceed to draw up the Statute and the basis for an international criminal court.

 

It had taken the United nations over forty years to reach a point from which states could finally move ahead decisively to create a legal institution that could impose criminal responsibility on those individuals whose crimes jeopardized the peace and security of humankind. Although some state representatives remained hesitant, the ILC was ready to proceed quickly to draft the Statutes for an ad hoc international criminal tribunal with limited jurisdiction and authority, if the General Assembly would simply ask them to do so.

 

In the meantime, the need for an international criminal court was growing increasingly more urgent and more obvious to any people. One such example related to the terrorist bombing of an American passenger plane over Lockerbie, Scotland on December 21, 1988, (A French plane had been similarly downed.) After almost three years of intensive investigation, a U.S. District Court indicted two Libyan nationals, allegedly officers of the Libyan Intelligence Services, for the crime. The United States alerted the Security Council as it demanded that Libya reveal the facts and hand over the accused for trail.

 

Libya refused to comply but declared “its readiness to cooperate to the full with any impartial judicial authority.” The Security Council deplored Libya’s failure to respond effectively and urged it to provide a full repose immediately. Mr. Arria, Venezuela’s delegate to the Council made an impassioned plea: “[I]t is obvious that, as long as the perpetrators remain unpunished, terrorism will never cease.” He deplored the lack of an international criminal tribunal, praised the 1990 appeal for such a court by Trinidad and Tobago’s Prime Minister Robinson, and asked: “[h]ow much longer will we have to way [sic] for the creation of a judicial organ to try those who are guilty of crimes against mankind.”

 

Faced with Libyan intransigence, the Council voted to impose aerial, arms and diplomatic sanctions until that Government cooperated. When Libya south an injunction against the U.S. and the U.K.from the International Court of Jurisdiction, the ICJ lost no time in rejecting the Libyan request. In the meantime, the accused Libyan terrorists remained untried, and no one was held responsible for the mass murders.

 

At about the same time, the U.S. Department of Defense reported to the congress on the conduct of the Persian Gulf War: “Iraqi war crimes were widespread and premeditated… On 15 October, the President warned Iraq of its liability for war crimes… In addition, the invasion of Kuwait was ordered by Saddam Hussein and in a crime against peace… [and] the principal responsibility rests with Saddam Hussein.” Yet there is no international criminal court to try Saddam Hussein or any other accused criminal.

 

The most glaring recent example of the need for an international criminal court arose in connection with the commission of massive crimes against humanity in the territory of the former Soviet Federal republic of Yugoslavia. When that Balkan nation disintegrated, fighting broke out among the newly created independent states and the many ethnic militias. Serbian forces ere accused of wantonly killing and driving out Muslims who lived in Bosnia and Herzegovina as well as Croatia, and blocking humanitarian relief from reaching civilian populations. U.N. efforts to restore peace included demands for a cease-fire, diplomatic missions, a U.N. Protection Force and the imposition of sanctions against the Federal Republic of Yugoslavia (now reduced to the Republics of Serbia and Montenegro).

 

U.S. delegate Edward J. Perkins condemned the aggression of the Serbian regime as “a clear threat to international peace and security.” Reports of atrocities in Yugoslavian detention camps and “ethnic cleansing” of Muslim minorities brutally driven from their homes prompted the French government to express its indignation and horror, and warn that “those who commit these deeds will have to bear individual responsibility for them.” In response, the Council called upon states to collate substantiated information showing violations of humanitarian law and reaffirmed that those responsible for grave breaches “are individually responsible.”

 

When the General Assembly met in September 1992, several statesmen spoke out in favor of an international criminal court. The President of Bosnia and Herzegovina requested an international war crimes tribunal and punishment of the criminals as a prerequisite for peace, and Norway’s Prime Minister Gro Harlem Bruntland also called for an international tribunal to be established to punish the war criminals. The Netherlands felt that the ILC should develop the idea of an international criminal court, and Pakistan urged that an international tribunal be established immediately. Italy’s representative asked the Assembly: “[c]an the perpetrators of heinous and odious crimes be allowed ton escape international judgment, also at the legal level?” The Canadian Secretary of State Mrs. Brabar McDougall, calling for the rule of law and deploring “double standards that are everywhere,” declared that “Canada calls for the drafting of a statute by the International Law Commission to establish an international criminal court.” Former Soviet Foreign Minister Eduard A. Shevardnadze spoke of the obligation “to introduce into the body of an international law an instrument concerning the personal responsibility of individuals who incite mass disorders…”

 

In October 1992, the Security Council expressed its grave alarm at continuing reports of “ethnic cleansing” in Yugoslavia. That was immediately followed by resolution requesting the Secretary General “to establish, as a matter of urgency, an impartial Commission of Experts” to review evidence of violations of international humanitarian law committed in the territory of the former Yugoslavia. Mr. Perkins of the U.S. claimed that the resolution “sends a clear message that those responsible for the atrocities and gross violations of international humanitarian law… must be brought to justice.” Mr. Merimee of France added that the resolution “is a part of the prospective creation by the appropriate bodies of an international penal jurisdiction to rule on such acts.”

 

In the territory of the former Soviet Union there were also outbursts of nationalistic, religious or ethnic violence. Shevardnadze, now Chairman of the State Council of the new Republic of Georgia, upon receiving reports of “mass executions of Georgian civilian population[s], widespread torture, rape and other atrocities” appealed to the Security Council to set up a War Crimes Commission to collect evidence of possible atrocities committed in Georgia.

 

It is unfortunately true that suffering sometimes seems to be a necessary stimulus for progress. Out of the prevailing misery and fear generated by continuing acts of terrorism in all its forms, from the aggressions and crimes against humanity which leave millions of innocent victims dead, homeless or despairing, out of the memory of Hitler’s Holocaust now reflected in the intolerance of “ethnic cleansing” arousing ancient hatreds, surely some lessons must be learned. It is not conceivable that as we approach the 21st century the world and the international community in particular will remain silent and do nothing to deter or halt such evils.

 

It is most regrettable that the United States continues to drag its heels on the creation of an international criminal court. On October 27, 1992, the Legal Advisor to the State Department made a special appearance at the U.N.’s Sixth Committee to raise the only voice in opposition to accepting the recommendations of the ILC. He declared: “[I]n the view of the United States, it is neither necessary nor desirable for either the Sixth Committee or the General Assembly to ask for further work by the Commission on the possible establishment of an international criminal court at this session.” He said that the United States was not opposed in principle, but that the U.S. was concerned that such a court might undermine present national and international efforts to control crime, including terrorism and narcotic trafficking. Since the matter had been pending for several decades, he argued, a delay of an additional year should not be objectionable.

 

It is now generally recognized that an effective international criminal code and court are essential components of a civilized world order. Despite disingenuous or hypocritical efforts to prevent the creation of such a court, the record of recent progress is clear. The persistent efforts to attain these noble goals must one day bear fruit. There is no reason for despair by those who hope and strive for the rule of international law to protect the peace and dignity of humankind.

 

 

 

 

 

 

 

 

The Nuremberg Precedent and the Prosecution of State-Sponsored Mass Murder

 

By Benjamin B. Ferencz

published: March 1990

source: The New York Law School Journal of International and Comparative Law, Vol. 11, No. 3, 1990

 

Today, in the course of about twenty minutes, I will deal with the issue of accountability for state-sponsored mass murder in light of the Nuremberg Trails. Seeing the special concerns of the Nuremberg Trials. Seeing the special concerns of the sponsors, I will also address human rights issues as well as the Holocaust.

 

It is well known that an international military tribunal presided over the Nuremberg Trials. [1] This tribunal was the first of its kind to act pursuant to a charter, the London Charter, that defined the crimes which were the subject of the prosecution. [2]

 

The first mentioned were crimes against peace, otherwise known as aggressive war. [3] Next came war crimes. The third referred to crimes against humanity. [4] The inclusion of this crime among the others represented a great step forward in the struggle against state-sponsored mass murder. For the first time in legal history, it became an international crime for a state to murder its own citizens. Before Nuremberg, this type of murder was quite common. In fact, foreign nations objecting to such conduct were not allowed to intervene, but could only send a “diplomatic note” to the offending state. If the Armenians, for instance, were being massacred by the Turks, some foreign government could write them and say, “We understand that there are disorders in your country which we view with concern and alarm,” but they did not have to get an answer, and there was nothing that legally could be done to stop the crimes.

 

After Nuremberg, state-sponsored murder was declared to be a crime against humanity under international law. This was not invention of law but rather a codification of emerging law. In his opening statement at Nuremberg, Justice Robert Jackson, who was on leave from the United States Supreme Court to be the chief prosecutor for the United States at the International Military Tribunal (IMT), said, “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.” [5] In other words, the very fact that we would put the Nazis on trial after the enormous crimes which has been committed was itself a great achievement showing respect for law.

 

This was not an easy decision to make. The British, for example, who always were noted for their fair play, were in favor of just taking them out and shooting them. That position had, in fact, been accepted by Anthony Eden and Winston Churchill, who had convinced Roosevelt of the wisdom of this position at a meeting which took place in Quebec. [6] It took some doing, therefore, to decide that there would be trials. The greatest accomplishment, in fact, of Nuremberg was to take a hated enemy who had committed the most atrocious crimes and say, “You are entitled to a fair trial.” Jackson warned: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” [7] Jackson further observed: “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 out task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.” [8]

 

Thus, Nuremberg was an attempt, on an international scale, to do justice in accordance with law. Such a characterization, however, does not dispose of the question: What is justice and what is the law in the area of accountability for state-sponsored murder?

 

After the IMT, we had twelve subsequent trials in which we tried the entire hierarchy of German life, [9] it being obvious to us that the killing of six million people and the commission of all the other atrocities could not be accomplished without a conspiracy implicating the entire German administration and apparatus. The trials included those against industrialists who worked people to death, doctors who performed medical experiments on people who were innocent victims, lawyers who perverted their loyalty to law by sentencing people to death for no reason, the foreign service, the SS, and the army as well. [10]

 

I was also the chief prosecutor at another of these trails where 22 defendants, members of the so-called SS Einsatzgruppen, or special extermination squads, were convicted of murdering over a million people. [11] A million people is a figure which is naturally difficult to grasp. If you can imagine that everyone you ever met in your life, every relative, every friend, every child, every mother, every parent, everyone you have ever seen was taken out to the woods, machine-gunned and dropped into a ditch, you would not reach a million people. The lead defendant was a man by the name of Otto Ohlendorf, a general in the SS. [12] He testified that their job was to assemble the presumed enemies of the Reich, first the Jews and gypsies, and then the Communist officials, take them out to the woods, machine-gun them, and drop them into a ditch. Later the Nazis became more efficient – they worked their presumed enemies to death. They sorted them out and sent them out to the extermination factories where they could take every bit of the human body and use it – the gold teeth, the hair. They would boil down the fat and make soap and then sprinkle the ashes out for fertilizer.

 

When we asked Ohlendorf why he did it, he explained he was seeking a better world, a better Germany, a superior race, and that these victims were inferior people, to be regarded as vermin. When we asked why kill the children, he explained that if you kill the parents, of course, you have got to kill the children, otherwise the children will grow up and be enemies of the Reich. The Nazis were interested in permanent security. He pointed out that he was also a humanitarian; he never allowed his troops to take pleasure from what they did. He testified that when he saw them enjoying it, he send them to the rear. He did not allow them to take infants and smash their heads against the wall, or against a tree, as other units did. He gave them instructions that a mother was to be allowed to carry her infant in her arms so that they could shoot right through the infant, kill both and save ammunition at the same time.

 

I make this point to emphasize that the people involved in what most would call mass murders, or state-sponsored mass murder, considered themselves idealists and humanitarians!

 

In my appeal to the court in that case, I confronted the problem of what punishment to ask for. After deep thought, I concluded that merely killing these twenty-two defendants would not compensate for the millions they had slaughtered. Therefore, I asked the court to affirm, by International Penal Law, the right to live in peace and dignity regardless of one’s race and creed. I did this because it seemed to me that the reason they killed all these people was that they did not share their race, they did not share their creed. Thus, if we could establish, as a rule of law, the right of all human beings to live in peace and dignity regardless of their race, regardless of their political opinion of ideology, such a principle would lead to a more humane and peaceful world. The twenty-two defendants were all convicted; conviction, however, was just the beginning.

 

We tried at Nuremberg to create the concept that all humanity had an interest when crimes reached a certain magnitude that shocked the human conscience. It was no longer the State of New York of another state versus the defendant. It was all of humankind. A crime against humanity, genocide, was the classic example. The crime being so enormous, it offended not merely the victim, but all of humanity. Therefore, all of humanity had the right to be the plaintiff and to bring a complaint. Unfortunately, Nuremberg was the last international tribunal. It was dissolved. There has been no international tribunal recreated since then.

 

Nevertheless, I continue to be surprised at how much the spirit of Nuremberg is still with us. Yesterday, The New York Times lead editorial was “The Ghost of Freedom’s Party: Giving Amnesty to Terrorist and Torturers.” [13] Although the Nuremberg tribunal set an imperfect precedent, the spirit of Nuremberg is a challenge to today’s authoritarian governments. Today, for example, they deal with the problems of war criminals in Argentina which, incidentally, some of my colleagues will discuss later.

 

While the Nuremberg precedent is present and alive, this does not mean that it is flourishing. International crimes such as genocide continue to be committed; Pol Pot is one example, another example can be found is Guatemala. The world is on the verge of other holocausts – much larger, nuclear holocausts. Our deterrent policy is that if some mad man in either the Pentagon of the Kremlin lets loose with a missile, we will retaliate by killing a hundred million innocent people who had nothing to do with it.

 

At Nuremberg, we said only the guilty would be punished and only after a fair trial. That was our sense of justice. Nevertheless, we tolerated and still tolerate a theory of deterrence which will enable state officials to kill hundreds of millions of people who have done no wrong, who may even be opposed to the aggressive actions of their government. This is the basis for our security. Is it moral? Is it legal? This has caused me great concern and has motivated me to write many books dealing with world peace. A holocaust can take many forms – it does not have to be taking people out to a ditch and shooting them; they can be asphyxiated by nuclear gases, explosions and fire. Poison gas can be used. In today’s newspaper, Iraq is bragging of its capacity to use missiles to kill people with poison gas. In fact, they have used it even though it is illegal. What has been our response?

 

So we have conflict in our society. On one hand, we have adherence to our old ways where the sovereign was supreme, where might made right. On the other hand, we have principles of Nuremberg reaching out for a more humane world, or a world under law. This challenges the lawyers, who in trying to meet this challenge have in some areas made progress and in many other areas have failed.

 

I have mentioned aggression. What is aggression? I wrote two volumes on the subject. [14] The United Nations finally reached a consensus on the definition of aggression that would determine the minimum norms of human behavior. [15] What is mass murder? Does that just mean shooting people? What does it mean? Blowing them up? What about acts of terrorism? The attempt to define terrorism utterly has failed in the United Nations. They say terrorism is a terrible thing. You must not do it. It is illegal. If you are doing it for a noble purpose, however, such as “self-determination” or “freedom from alien domination,” then it is not terrorism. Then, it is a pursuit of a lawful goal. The same is true with aggression and with crimes against diplomats. These loopholes written into the law make the law ineffective.

 

For forty years the United States government, which stood behind the prosecution of genocide in the first place, failed to ratify the Genocide Convention. [16] This was a disgrace to our country, to us – its citizens, its politicians, its lawyers. When the convention finally was ratified, it was full of reservations and understandings rendering it absolutely useless. [17] Nobody will ever be prosecuted in the United States for the crime of genocide. It is impossible under the existing statute; everybody who studied the question knows that.

 

Consideration of these difficulties could very well one to become discouraged. But if accountability for state-sponsored mass murder is to exist, certain fundamental ingredients are necessary. First, clear definition of the crime involved must be formulated. There must be a tribunal to determine if the crime has been committed. Also, a system of effective enforcement must be created. These three ingredients – laws, courts and enforcements – are the true foundation of every civilized society. To the extent that such a foundation exists, society enjoys relative calm; to the extent that it does not, society faces chaos and destruction. Today, in the field of mass murder, definitions are lacking, no objective international court exists and no enforcement mechanism whatsoever is yet in place.

 

Is all bleak and black? No, it is not. We are making tremendous progress in this area. The difficulty is that we all expect to see this progress in our lifetime, and that is too short, even for me. When I was prosecuting at Nuremberg I was twenty-seven years old, and I see that great progress has been made. I look around me and I see that although the definitions of aggression and genocide are defective, apartheid has also been declared an international crime. [18] Terrorism is now an international crime. [19] Crimes against humanity have been condemned, albeit with all their loopholes. All of these things I have seen in a relatively short period of time. In the area of courts, although there is no international criminal court, its formation is on the agenda of the United Nations. [20] Today, drafting is underway for a code of crimes against peace and security of mankind. [21] This code, built on Nuremberg principles, may incorporate other international crimes which have developed since that time. Finally, crimes dealing with environmental pollution are slowly beginning to emerge. [22] In the area of courts we have a Court of Human Rights in Strasbourg, [23] as well as a court of human rights in Costa Rica. Indeed, in a very interesting case, the Valesquez Rodriguez case, four citizens of Honduras sued the government of Honduras in the Inter-American Court of Human Rights. [24] The claim was that the plaintiff’s sons had disappeared off the streets of Honduras. They claimed that since this was in Honduras, their human rights had been violated, and it was the responsibility of the government to compensate the parents for the loss of their sons. [25]

 

In a milestone for human rights, the court decided that the government of Honduras was responsible. [26] What a great step forward! The judge who was the prime moving party in the decision was a friend of mine by the name of Tom Buergenthal, himself a victim of the Nazi Holocaust. Today, besides being a professor, he sits on the Inter-American Court of Human Rights and is making law in the field of human rights.

 

Finally, the Caribbean countries, two months ago, all supported the creation of an international criminal court to deal with drug traffickers. [27]

The prospective court was referred to the International Law Committee. While the United States is now against it, its eventual survival depends upon the will of the people.

 

The development of international law, the codification of law, the creation of courts, even the emergence of a system of enforcement, are continuing processes. When this process is complete, one may begin to witness a world in which effective action against state-sponsored mass murder is possible. State-sponsored mass murder, however, will never be prosecuted in the present system of sovereign states. The state is not going to condemn itself. For example, this is the reason the United States is opposing an international criminal court in which the United States itself, or other nations, might become defendants. Other nations are equally at fault. In sum, the surrender of a certain amount of sovereignty is essential for security to exist for all.

 

If one believes in the principles of law, justice and humanity – which were expressed in Nuremberg – and that these are the principles worth preserving, then that person must be alert to what is happening in this area. He or she must support every effort promotive of these principles and oppose everything subversive of these principles. If this is done, I believe society will, in the future, have more effective action against mass murder fro whatever source and enjoy a more peaceful world.

 

Thank you very much.

 

 

[1] See F. BUSCHER, THE US WAR CRIMES TRIAL PROGRAM IN GERMANY, 1946-1955, 1, 21, 30, 92, 98, 133, 137 (1989); R. CONOT, JUSTICE AT NUREMBERG 15, 18, 19, 24, 66, 69, (1989); B. FERENCZ, A COMMON SENSE GUIDE TO WORLD PEACE 7, 15, (1985); Kutner, A World Genocide Tribunal - Rampant Against Future Genocide : Proposal for Planetary Preventative Measures Supplementing a Genocide Early Warning System, 18 VAL. U.L. REV 373, 375 (1984); Lawrence, The Nuremberg Principles: A Defense for Political Protesters, 40 HASTINGS L.J. 397, 399 (1989); Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 3 B.U. INT’L L.J. 1, 4, (1985); Mueller, Four Decades After Nuremberg: The Prospect of an International Code, 2 CONN. J. INT’L. 499, 499-500 (1987).

[2] See F. BUSCHER, supra note 1, at 21 (“The London Agreement specifically called for a fair trial and incorporated Stimson’s ‘rudimentary aspects of the bill of rights’ into the Nuremberg Procedure.”); B. FERENCZ, supra note 1, at 17; Kutner, supra note 1, at 375; Lawrence, supra note 1, at 499-500.

[3] B. FERENCZ, supra note 1, at 16; Kutner, supra note 1, at 376; Lawrence, supra note 1, at 399. On defining aggression, see B. FERENCZ, DEFINING INTERNATIONAL AGGRESSION-THE SEARCH FOR WORLD PEACE: A DOCUMENTARY HISTORY AND ANALYSIS (1975).

[4] B. FERENCZ, supra note 1, at 16.

[5] See generally R. CONOT, supra note 1.

[6] Quebec was a meeting of allied powers in early September 1943. See R. CONOT, supra note 1, at 13-14; Fogelson, The Nuremberg Legacy: An Unfulfilled Promise, 63 S. CAL. L. REV. 833, 837 (1990).

[7] B. FERENCZ, supra note 3, at 71.

[8] B. FERENCZ, supra note 1, at 16; see also Address by Robert H. Jackson to the American Society of International Law (Apr. 13, 1945).

[9] See generally B. FERENCZ, supra note 1, at 17.

[10] See generally V.H. BERNSTEIN, FINAL JUDGEMENT: THE STORY OF NUREMBERG (1947).

[11] Einsatzgruppen are special task forces of action groups which served as out-and-out genocide forces for the Nazis. There were four such groups serving a sector of the Eastern front. V.H. BERNSTEIN, supra note 10, at 141-42; F. BUSCHER, supra note 1, at 165-67; R. CONOT, supra note 1, at 227-38.

[12] V.H. BERNSTEIN, supra note 10, at 237; R. CONOT, supra note 1, at 233.

[13] N.Y. Times, Apr. 2, 1990, A16, col. 1 (editorial).

[14] B. FERENCZ, supra note 3.

[15] B. FERENCZ, supra note 1, at 68.

[16] See Mueller, supra note 1, at 499.

[17] See LeBlanc, The ICJ, The Genocide Convention and the United States, 6 WIS. INT’L L.J. 43, 44 (1987); Leich, Contemporary Practice of the United States Relating to International Law, 79 AM. J. INT’L L. 116, 127 (1985).

[18] B. FERENCZ, supra note 1, at 8; see also Bassiouni, The Protection of ‘Collective Victims’ in International Law, 2 N.Y.L. SCH. HUM. RTS. ANN. 239, 248 (1985).

[19] F. BUSCHER, supra note 1, at 21; R. CONOT, supra note 1, at 493; B. FERENCZ, supra note 1, at 8, 46, 51, 66; Mueller, supra note 1, at 502.

[20] Mueller, supra note 1, at 501.

[21] R. CONOT, supra note 1, at 520; McCaffrey, The Fortieth Session of the International Law Commission, 83 AM. J. INT’L L. 153 (1989); Mueller, supra note 1, at 502; Ferencz, The Case for and Against Abduction Terrorists, N.Y. Times, Jan. 28, 1986, at A8, col. 4.

[22] See Criminal Code Climax, CHRISTIAN SCIENCE MONITOR, Apr. 22, 1980, at 24, col. 1.

[23] 28 I.L.M. 291 (1989); see Costs Applied in Closed Shop Case, Fin. Times (London), Apr. 29, 1982, at 7, col. 1; Deep Human Rights Issues in a Widening Europe, The Independent (London), Sept. 20, 1990, at 13, col. 1.

[24] Case 7920, INTER-AM. C.H.R. 68, OEA/ser. L./V./II., doc. 8 rev. 1 (1986).

[25] Id. at 7.

[26] Id. at 12.

[27] 44 U.N. GAOR C.6 (Agenda Item 152) (38th-41st mtg.), UN Doc. A/C.6/44/-SR.38-41 (1989)