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Misguided Fears About the ICC
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After 9/11: Thoughts on What Can Be Done
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Reviving the Litvack Human Rights Award
War Crimes Trials at Nuremberg
By Benjamin B. Ferencz
published: November 2004
source: Entry for Macmillan Reference USA's 3 Vol. Encyclopedia of Genocide and Crimes Against Humanity.
On November 1, 1943, as the tides of World War Two began to turn, leaders of the United Kingdom, the United States and the Soviet Union convened in Moscow. Germany had been put on notice in 1941 and 1942 that perpetrators of war crimes would be held to personal account "through the channel of organized justice." The earlier warnings were renewed as President Franklin D. Roosevelt, Prime Minister Winston Churchill and Soviet Marshal Joseph Stalin issued a solemn "Declaration on German Atrocities." On behalf of thirty-two allied Powers, they proclaimed that Germans responsible for war crimes committed in territories overrun by Hitlerite forces would be sent back to be judged by the people they had outraged. Major criminals, whose offenses had no particular geographic location would be punished by joint decision of the allies.
US Army War Crimes Trials at Dachau
The war ended with Germany's unconditional surrender in May 1945. Captured German records disclosed that millions of Germans had been avid supporters of the Nazi party and policies. Allied trials for such large numbers was logistically and politically impossible. They could be dealt with later in German "denazification" procedures. The United States army lost no time in bringing to justice suspected war criminals who were already in custody. US Military Commissions were convened to try Germans accused of murdering downed flyers or prisoners of war as well as perpetrators or accomplices responsible for atrocities committed in concentration camps freed by US forces. Ironically, these little- known " US army trials" were held in the liberated camp at Dachau, near Munich.
Prosecutors, Defense Counsel and Judges were all US army officers. Defendants were grouped according to the camps where they were captured. The summary proceedings generally followed rules for courts martial. Between June 1944 and July 1948, when the trials were unceremoniously ended, over 1600 defendants had been tried. Almost all were convicted and over 400 were sentenced to death. After military reviews, less than 300 of the death sentences were confirmed. The guilty were confined in "War Crimes Prison No. 1", formerly renowned as the Bavarian jail at Landsberg, where Adolf Hitler, after his failed coup in 1923, had written his best-selling book,"Mein Kampf".
The First International Military Trial at Nuremberg
The trials in Dachau were overshadowed when the spotlight shifted to a new International Military Tribunal (IMT) established in Nuremberg, where Hitler's Deputy, Hermann Goering, and other prominent Nazi accomplices held center stage. The four victorious powers, US, USSR, UK and France, in their capacity as the sole acting government of what had been the Third Reich, signed an agreement in London on August 8,1945 which provided that an International Military Tribunal would be established "for the just and prompt trial and punishment of the major war criminals of the European Axis".
The jurisdiction and rules for the IMT were set forth in a Charter that was annexed to the London Agreement. The court's authority was limited to three categories of crimes: Crimes Against Peace (e.g. aggressive war); War Crimes (traditional violations of the laws of war) and Crimes Against Humanity (such as exterminations that were later known as genocide). Following piracy principles, those who embarked on a criminal enterprise could also be held accountable. Accessories and accomplices who knowingly joined the common plan or criminal conspiracy could be found guilty. The powers of the tribunal and regulations were prescribed to ensure fair trials. The Charter became the foundation stone for the IMT trial and for twelve lesser-known Nuremberg trials that soon followed.
The IMT prosecution began on November 30, 1945. After a trial that was generally considered to be eminently fair, the judgment against the twenty-four defendants was handed down on October 1, 1946. The learned judges meticulously reviewed the historical and legal basis for their proceedings. They concluded: "The Charter is not an arbitrary exercise of power on the part of the victorious Nations, but, it is the expression of international law existing at the time of its creation..." Reference was made to treaties like the Kellogg Pact and Hague Conventions that laid down binding rules that had been violated. The Court respected the principle that no one should be punished for deeds that were not previously declared to be illegal, but that rule of equity was held inapplicable where the accused were leaders of such high authority that they must have known their abominable deeds were criminal by any civilized standard.
Presiding Judge, Lord Geoffrey Lawrence of Great Britain, read the sentences. Three of the defendants were acquitted. Twelve others were sentenced to death for having planned and participated in aggressive war, which the Tribunal condemned as "the supreme international crime", as well as for crimes against humanity and violations of the laws of war, After confirmation by the Allied Control Council, those condemned to die were hanged. Goering committed suicide and Martin Bormann, Hitler's Deputy, who was tried in absentia, was never found. Those sentenced to imprisonment were confined in Spandau prison in Berlin, where they remained under strict quadripartite supervision until their sentences were fully served.
The IMT Charter, adhered to by 19 other nations, and the legal principles that emerged from the IMT judgment, were unanimously affirmed by the first General Assembly of the United Nations on 11 December 1946. The law had taken a significant step forward to meet the needs of a changing world.
Trials Under Allied Control Council Law
Defeated Germany was divided into four zones. Each zone was occupied and administered by one of the four victorious powers, UK, US, USSR and France. Berlin was occupied jointly. The governing body was the quadripartite Control Council. Since the London Charter anticipated the possibility of more than one trial, the Control Council enacted Law 10, on December 20, 1945, to provide a uniform legal basis for any subsequent trials and to add some needed clarifications. The most important change was to make clear that crimes against humanity could be punishable even if committed in peacetime against one's own nationals. "Invasions" as well as "wars" were specifically made punishable, and "rape" was added as a specific example of a crime against humanity. These articulations would play an important role in the evolution of international criminal and humanitarian law.
The single trial by the IMT against two-dozen culprits could not adequately portray the full extent of Nazi criminality. The allies all agreed that additional speedy trials would be desirable to hold to account those mid-level policymakers and accomplices without whose assistance Hitler's overwhelming reign of terror would not have been possible. Where and how such trials would be held posed a problem. The leading architect for the Nuremberg trial, Justice Robert M, Jackson, on temporary leave from the US Supreme Court to serve as Chief Prosecutor for the United States, noted that quadripartite trials in four languages were both costly and time-consuming. Failing to reach an accord on another international trial, it was finally decided that each of the occupying powers could handle future war crimes prosecutions in their own zones of occupation as each might see fit.
In time, the French conducted a few trials in their zone and the British did the same under rules prescribed by traditional Royal Warrants for military procedures. What the Soviets did in areas they occupied remains obscure but millions of German prisoners of war were kept in Soviet custody for many years. The United States decided that justice would best be served by additional trials against a wide array of high level Germans suspected of being the powers behind the Nazi hierarchy of crime. United States Zone Ordinance No.7 . on October 18, 1946 (amended by Ordinance 11 on February 17, 1947,) laid down rules to implement Control Council Law 10 to guarantee a fair and speedy trial for all accused. Although the later proceedings were conducted in the name of the United States and the prosecutors and judges were Americans, the trials, based on the London Charter, had characteristics of international law rather than national law. The courts were created and the trials conducted pursuant to the quadripartite Control Council decrees and ordinances. They were bound to respect the legal findings of the International Military Tribunal.
Nuremberg, ravaged by war, was in the US zone. The old German courthouse had been refurbished for the IMT and would be available as soon as the international trial was completed. Telford Taylor, a Harvard law graduate who had served on the staff of Justice Jackson was charged with responsibility for organizing and directing any "subsequent proceedings." Taylor, promoted to Brigadier General, was designated Jackson's Deputy and named Chief of Counsel for further trials. Nazi leaders who were not tried by the IMT as well as their principal agents and accessories, and members of Nazi groups found by the IMT to be criminal organizations, were potential targets for the new war crimes courts.
The evidence before the IMT had only outlined the broad sweep of Nazi criminality. Crimes of such magnitude could not have been committed without help from many sectors. German doctors, for example, had performed brutal medical experiments on victims considered racially undesirable or subhuman. German judges and lawyers had used the law as a tool for persecuting presumed enemies. High ranking military officers directed or assisted massive war crimes in violation of the laws of war. The Nazi party had been financed by banks and industrialists who were fully aware of Hitler's plans and programs. German companies had seized foreign assets and helped build concentration camps where helpless inmates were worked to death. German diplomats and ministers had planned and aided Hitler's repeated aggressions. To follow-up on the IMT, a sample of such wrongdoers would be called to account in courts of law set up in Nuremberg by the United States.
The challenge was daunting. Evidence had to be assembled quickly to prove beyond reasonable doubt that the suspects knowingly committed crimes within the jurisdiction of the court. The alleged perpetrators would have to be in custody and in mental and physical condition to stand trial. New staff had to be recruited and trained, bilingual researchers, investigators and translators had to be hired. Qualified and available judges had to be recruited in the United State. Witnesses had to be located, housed and safeguarded. Budgets were limited. Most important of all, it was imperative that the subsequent trials, would, as Jackson said, "commend itself to posterity as fulfilling humanity's aspirations to do justice."
The Twelve Subsequent Trials at Nuremberg
(1) Doctors and lawyers on trial
The lead defendant in Case No. 1, the "Medical Case", was Karl Brandt. Like many other Nazi leaders, he was given high rank in the SS (Security Services) and reported directly to Hitler. Dr. Brandt, together with twenty-two others, was indicted on December 9, 1946 for cruel experiments on helpless concentration camp inmates and prisoners-of-war. The unwilling "guinea pigs" were deliberately infected with diseases and subjected to wounds designed to test the limits of human endurance. Euthanasia and sterilization programs had been organized against the aged, incurably ill and others characterized as "useless eaters." The defendants all denied personal culpability, argued that they were acting under "superior orders" and that such experiments were carried on legally elsewhere.
The American Judges, who came from superior courts in Oklahoma, Florida and Washington, found that there was unquestionable proof that war crimes and crimes against humanity had been committed. Individual responsibility had to be established beyond a reasonable doubt. Seven defendants were acquitted. The others were convicted on July 19, 1947 and sentenced to long prison terms. Five were condemned to hang and in due course were executed in Landsberg prison. The Tribunal laid down ten basic principles that had to be observed to satisfy ethical and legal standards for medical experiments. These guidelines became important signposts for the medical profession throughout the world.
Nazi lawyers and judges did not escape scrutiny. In the "Justice Case" that opened on January 4,1947, fourteen leading official of the judicial system of the Reich were accused of crimes against humanity by distorting the legal process to justify and support Hitler's programs of persecution and extermination. The trial judges came from benches in Ohio, Oregon and Texas. They found that "the dagger of the assassin was concealed beneath the robe of the jurist." The proceedings, which lasted less than a year, reinforced principles laid down by the IMT and became the subject of a popular Hollywood film "Judgment at Nuremberg".
The American judges denied that they were imposing ex post facto law. International law, in contrast to national law, was described as an evolving process that relies on broad principles of justice and fair play which underlie all civilized concepts of law and procedure. No one was convicted without proof that he " knew or should have known that in matters of international concern he was guilty of participating in a nationally organized system of injustice and persecution shocking to the moral sense of mankind". The fairness of the trial was evidenced by the fact that four of the accused were acquitted. The six remaining were sentenced to life imprisonment or lesser terms.
(2) Nazi Administrators and Executioners
Three subsequent trials were directed against leaders of different Nazi offices. The "Pohl Case" indicted Oswald Pohl, Chief of the Economic and Administrative Departments and seventeen of his highest associates accused of kidnapping and enslaving millions of civilians, and constructing and administering concentration camps where forced laborers toiled under conditions that made work and death almost synonymous. Defendants argued that during the war food was scarce for everyone and hard work was mandatory but not unlawful. The judgment in November 1947 held that there is no such thing as benevolent slavery; compulsory, uncompensated labor under the most inhumane conditions was a crime. The trial lasted about six months and resulted in death sentences for Pohl and three of his cohorts. Three others were acquitted, while the rest received prison terms.
The second case against Nazi officials, indicted 14 leaders of the Main Race and Resettlement Office,("RuSHA") whose assignment was to safeguard the purity of German blood by eliminating ethnic "inferiors", like Jews, Gypsies and Poles. Other non-Aryans were to be resettled or "Germanized". The trial lasted about four months and ended on March 10, 1948. The lead defendant, Ulrich Greifelt, was sentenced to life imprisonment. The one female defendant in any of he Nuremberg trials was acquitted. Others received prison sentences and those convicted only of membership in criminal organizations were allowed to go free for time already served.
Of special interest was the case against the special extermination squads known as "SS Einsatzgruppen". Twenty-four high-ranking officers, including six Generals, were accused of slaughtering over a million Jews, Gypsies and others - men, women and children - as part of the Nazi "final solution" to eradicate perceived opposition to Hitler's Reich. The defendants were commanders of units, totaling about three thousand men, who followed behind the German advance into Poland and the Soviet Union where they rounded up helpless civilian victims for execution in ditches or gas vans. Their daily reports to higher headquarters and ministries tabulated the number of victims "eliminated," the location and identity of the units and the commanders in charge. Unfortunately for them, these official records, from about June 1941 to the middle of 1942, fell into the hands of US war crimes investigators.
Relying on the defendant's own reports. the Prosecution rested its case two days after its Opening Statement on September 29, 1947. The defense took 136 trial days. They challenged the authenticity of the documents, offered alibis, denials, excuses and purported justifications including the standard plea of "superior orders". Presiding Judge Michael Musmanno, of Pennsylvania, allowed the defendants to introduce any evidence they felt might save them. But they could not escape the damaging impact of the overwhelming proof against them. The judgment was comprehensive and devastating. On April 10, 1948, all of the defendants were convicted and 14 were sentenced to death. Executions were stayed pending appeals. The trial was widely publicized as "the biggest murder trial in history"
The defendants were well educated men. Eight of them were lawyers and most others had doctor's degrees. The lead defendant, an intellectual SS General Ohlendorf, freely admitted that his unit had killed about ninety-thousand Jews. He testified that he would do it again to answer his country's call. Even after he was sentenced to death he showed not the slightest remorse. The trial offered new insights into the mentality of fanatics who are so convinced of the righteousness of their cause that they remain willing to kill or be killed for their own perverted ideals.
The victims were killed because they did not share the race, religion or creed of their executioners. The Prosecution emphasized that no penalty could balance the enormity of the genocidal crime. The goal of the trial was not vengeance or merely justified retribution. It was a plea of humanity to law- that all people should have a legal right to live in peace and dignity regardless of their race or creed. The Opinion of the three American judges confirmed that genocide and crimes against humanity were crimes that could never be tolerated. The trial and judgment set significant landmarks to advance the evolution of international criminal and humanitarian law.
(3) Industrialists called to account
Three more trials focused on industrial leaders and financiers who backed the Hitler regime. The "Farben", "Krupp" and "Flick" cases also reflected the mentality of persons who aided and abetted the Nazi reign of terror without any regret or subsequent remorse. They were accused of benefiting from the slave labor programs of the Third Reich and from confiscation of properties from occupied countries and from Jews. Many of the defendants argued that it was necessary to go along with the governing regime.
In the trial against Friedrich Flick and five of his associates, the powerful industrialist, who became the richest man under Hitler, was charged with seizing properties as well as exploiting camp inmates under the most atrocious conditions. It was shown that he took the initiative for economic plunder and was a big contributor to Nazi entities. German defense lawyers argued that their clients had done no more than others would have done in defense of home and country. The arguments of economic and military necessity persuaded the American judges to acquit three of the accused. On December 22, 1947, Flick was sentenced to five years imprisonment and the two remaining defendants received lesser terms. With time off for good behavior, they would all soon be released.
Alfried Krupp was the sole owner and director of Hitler's major arms producer. (His father Gustav had been dropped as a defendant in the IMT trial when it was found that he was senile.) Alfried and eleven other key members of the company were indicted on a variety of charges. The court acquitted all of them of having been accessories to crimes against peace. The judges were not convinced that they had sufficient knowledge of Hitler's aggressive intentions to be found guilty. Judge Anderson, from Tennessee, thought that liability for planning aggressive war should be limited to the leaders who did the planning and not civilians who were not policy-makers.
On other counts of the indictment the defendants did not fare as well. The judgment covered `122 printed pages. 11 of the accused were found guilty beyond reasonable doubt, of plunder and violating laws of war by mistreatment of prisoners and camp inmates who slaved in their plants. The arguments that they acted under "superior orders" and feared they might otherwise be penalized, were rejected. It was shown that the industrialists shared the goals of the regime and were in no way coerced. Any disadvantage that might have befallen them was trivial when compared to the suffering of the inmates they abused. Alfried Krupp was sentenced to twelve years in prison plus forfeiture of all his property. His colleagues received lesser sentences. In the spring of 1949, they were transported to War Criminal Prison No. 1 where they began plans to obtain their release. It would not be long in coming.
The most difficult and complicated industrial trial was against the directors of the IG Farben chemical cartel. The "Farben Case" indicted twenty defendants, led by Chairman of the Board, Hermann Schmitz. The charges were essentially the same as those leveled against Krupp. Farben had assisted Hitler in attaining power. Farben directors had worked closely with the military in restoring German might. Farben had financed the building of the concentration camp at Auschwitz. Farben was one of the heaviest users of slave labor in the camps. Farben had planned the unlawful acquisition of foreign companies to strengthen Germany's war potential.
The Tribunal's judgment in July 1948 acquitted all defendants of conspiracy and the crime of aggression. Two of the three judges were not persuaded that the accused were aware of Hitler's plans to start an aggressive war. Judge Paul Hebert, Dean of the Louisiana Law School, was not convinced that justice had been done. He dissented regarding some of the acquittals Of the twenty-three defendants, ten were acquitted of all charges. Thirteen were found guilty of plunder or slave labor abuses. Those convicted received light sentences, of eight years or less - much to the disappointment of the young American prosecutors.
(4) Generals face the court
German Field Marshals and Generals were among the high-ranking military leaders called to account in the "Hostages Case" for the murder of prisoners of war and civilian hostages in occupied territories. The trial lasted about six months and ended in February, 1948. The judgment, led by Charles Wennerstrum of Iowa, helped to clarify the law regarding the status and rights of partisans and other belligerents as well as the limits of "command responsibility" and of "military necessity." "Superior orders" were considered in mitigation. No death sentences were imposed and some Generals were acquitted. 14 of the convicted men were sentenced to prison terms.
The second military trial had only one defendant. In the "Milch" case, Field Marshal Erhard Milch, deputy to Hermann Goering, was sentenced to life imprisonment in April, 1947, for his deep involvement in slave labor programs. In another such trial in the summer of 1948, all fourteen defendants in the "High Command" case were acquitted of planning or waging aggressive war since they were not found to be the policy-makers. Most of the thirteen other defendants were sentenced to prison terms for abuse of forced laborers and other war crimes.
(5) Ministers and diplomats on trial
The last and longest of the subsequent Nuremberg trials was the "Ministries" case which began in January, 1948 with twenty-one defendants and lasted fifteen months. High officials of the Foreign Office and other government ministries were charged with responsibility for crimes against peace, crimes against humanity and a large variety of war crimes and atrocities. Five defendants, including Ernst von Weizsaecker, a career diplomat who was State Secretary in the Foreign Office, were convicted of "crimes against peace". Following IMT reasoning, the court held that those leaders clearly responsible for initiating or cooperating in waging unlawful war, knowing that it was aggression, must be held accountable. They noted particularly that the principles laid down in the judgment were not binding merely on Germans but were applicable to all nations. Those found guilty were sentenced to prison terms ranging from 4 to 15 years.
Clemency for War Criminals
The twelve Nuremberg trials had indicted 185 persons and had convicted 142. The convicts joined more than a thousand prisoners sentenced by the Dachau Military Commissions to confinement in War Crimes Prison No. 1. Life in the Landsberg jail was relatively comfortable but the prisoners lost no time in trying to get out.
As the passions of war cooled and the political climate in Germany changed, the attitude toward the convicts in Landsberg also changed. The Soviet Union, that had been a wartime partner, soon came to be regarded as an enemy by the United States. West Germany, that had been a wartime enemy, was seen as a potential ally in opposing communist expansion. German veteran's organizations, Nazi sympathizers, influential friends of the prisoners, as well as church and humanitarian groups, joined respected German politicians who beseeched the Americans to release the prisoners in Landsberg. They were not without friends in the US Congress where Senator Joseph McCarthy and others argued that the real enemy was not Germany but the communists. German militarists made plain that they could not be expected to join allied forces as long as their revered war-time commanders were imprisoned as criminals.
General Lucius Clay, as US Military Governor, had personally reviewed both the Dachau and the subsequent Nuremberg trials in 1948. He had affirmed practically all of the verdicts including hundreds of death sentences. As part of the movement away from military occupation, he was replaced in 1949 by a High Commissioner, John J. McCloy, a prominent New York lawyer who had served as Assistant Secretary of War. McCloy was left with the unenviable task of signing death warrants that would trigger the hanging of fifteen prisoners who had been convicted at Nuremberg but whose execution had been postponed pending appeals.
In July, 1950, McCloy appointed an Advisory Board for Clemency for War Criminals to advise him. The board was instructed not to challenge any of the findings of law or fact reached by Nuremberg judges. It was requested only to consider discrepancies in sentences for the same offense as well as personal hardships of health or family. It was not an appellate review and no Nuremberg prosecutors were consulted. On January 31, 1951, after all legal appeals had been exhausted, including petitions to the Supreme Court of the United States, that refused to accept jurisdiction, McCloy announced his final decisions. Thirty-one of the Nuremberg defendants, including the nine industrialists who had been sentenced to prison in the Krupp case, all had their terms reduced to "time served." On February 5, 1951, Krupp walked out of prison a free and happy man. All of the enormous Krupp fortune had been returned to him by High Commissioner McCloy.
Taking account of every consideration in favor of the prisoners, McCloy commuted ten of the 15 death sentences to life imprisonment. He could find no grounds for clemency for four Einsatzgruppen commanders (Paul Blobel, Werner Braune, Erich Naumann, Otto Ohlendorf) or for Oswald Pohl who was responsible for mass murders in concentration camps. Aware that Germany had abolished the death penalty, he nevertheless confirmed that those five genocidal killers should be executed.
At the same time, the Commander for the US Army in Europe, General Thomas Handy, who was responsible for the prisoners convicted in the army trials at Dachau, reduced sentences for about four-hundred of those under his charge who were still detained in the war crimes prison. He commuted eleven death sentences that were still pending but directed that two others face the gallows. The five Nuremberg defendants on death row plus the two convicted at Dachau were hanged in Landsberg on June 7, 1951.
In December, 1951, many of the war criminals convicted at Dachau or Nuremberg were granted their freedom as a "Christmas Amnesty. " Attempts to gain the release of the remaining Landsberg prisoners were unrelenting. The sympathetic US authorities were increasingly creative in quietly finding ways to reduce sentences or grant paroles to remaining prisoners. Similarly, the British, eager to have German forces join in the defense of Europe, found reasons to release Hitler's leading commanders, Field Marshals Kesselring and Manstein in 1952 and 1953. By the end of 1958, all war criminals convicted at any of the twelve subsequent trials at Nuremberg were free.
Significance of the Nuremberg Trials
The significance of the trials at Nuremberg can best be understood as part of an evolutionary process. It is part of a much larger mosaic in which clearer laws, international courts and a system of effective enforcement of universal norms gradually gain international acceptance. It was repeatedly made clear by Jackson and Taylor, and the judgments of the courts, that law must apply equally to everyone.
The thirteen judicial proceedings at Nuremberg were designed to protect the fundamental rights of all human beings to live in peace and dignity regardless of their race or creed. In careful and well reasoned judgments, the law was clarified and affirmed. Bringing at least a handful of Nazi leaders before the bar of justice helped to diminish some of the anger and pain of survivors of persecution and encouraged hope for a more humane world in which perpetrators of such crimes would never be immune from punishment. The number of convictions was not as important as the confirmation of the principles emerging to guide future international behavior of nations and individuals.
The details presented in open court at Nuremberg made plain how an entire nation could be led astray by a ruthless tyrant. Revulsion against the horrors encouraged acceptance of the Charter of the United Nations and the slow awakening of the human conscience. The Genocide Convention, introduced on December 9, 1948, the Universal Declaration of Human Rights, adopted on December 10, 1948, and a growing host of other international agreements gave birth to new disciplines focused on humanitarian law and the protection of human rights everywhere.
The impulse of Nuremberg spread internationally. Trials of Japanese war criminals were based on the IMT Charter. Countries that had been occupied by Nazi Germany also held war crimes trials following similar principles. German courts conducted post-war trials against concentration camp personnel. A central office in Germany directed investigations of war criminals throughout the land. War crimes suspects who had fled abroad were seized and called to account. An ad hoc tribunal was set up by the United Nations Security Council in 1993 to deal with crimes against humanity and war crimes committed in Yugoslavia. A similar tribunal was created in 1994 to cope with genocide in Rwanda. Their decisions built upon the law laid down at Nuremberg. Several new national or international criminal courts are being planned to cope with terrorism and other atrocities in other parts of the world. They all bear the mark of Nuremberg.
After many years of difficult negotiation, a permanent international criminal court, widely recognized as "the missing link in the world's legal order," was sworn into office in the Hague on March 11, 2003. Its aim was to establish universally binding rules of law, based on the Nuremberg principles and precedents. Its primary goal was to prevent perpetrators of massive crimes from remaining immune. Its eighteen distinguished judges, male and female, came from all regions of the world. Its first Prosecutor, a renowned human rights lawyer, was unanimously elected and sworn to impartiality. Nations retained the right to try their own nationals and a fair trial for all was guaranteed under binding rules. By the end of 2003, over ninety nations, including the entire European community, had ratified the treaty and accepted responsibility for the proper functioning of the new international criminal tribunal.
The many legal fruits that have grown from the seeds planted at Nuremberg reflect the enduring hopes of humankind. But, as seen from the clemency shown to criminals convicted at Nuremberg, the progress of the law does not proceed upward in a straight line or in a political vacuum. The creation of new judicial institutions with universally binding authority on matters of vital concern to many nations is not something that can be achieved quickly or easily.
There have always been those who oppose enforceable international rules as an infringement on national sovereignty. They prefer to rely on their own economic or military might rather than trust any untried new legal tribunals. Without looking for solutions, they point to shortcomings, even though some problems must be expected in every new institution. Opposition to the new international criminal court is, in effect, a repudiation of the principles and goals enunciated at Nuremberg. The historical record shows, however, that despite hesitation and vacillation, the Nuremberg principles live on. A peaceful and humane world requires an improved and enforceable rule of law that applies equally to everyone. The universal acceptance of that principle will be the enduring legacy of the Nuremberg trials.
BENJAMIN B. FERENCZ
J.D. Harvard, 1943. Chief Prosecutor in the Einsatzgruppen trial at Nuremberg.
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Ferencz, B.B. (1980). An International Criminal Court, 2 vols. New York, Oceana Publications.
Ferencz, B.B. (2002). Less Than Slaves, Bloomington: Indiana University Press. (Originally published by Harvard University Press.)
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"Einsatzgruppen": The Blackest Page in Human History
By Benjamin B. Ferencz
published: November 2004
source: The Encyclopedia of Genocide and Crimes Against Humanity Dinah Shellton, Ed. NY Macmillan Reference USA, publication expected in November 2004.
No satisfactory English translation has been found for the German term "Einsatzgruppen"(EG). An accurate description might be "special extermination groups." Their primary assignment was to kill every Jewish man, woman or child they could lay their hands on. "Gypsies," were to suffer the same fate. Communist leaders or others suspected of any future threat to Hitler's conquests would also be targets for annihilation. Security Chief Heydrich issued the order on 21 September 1939: "The total measures planned are to be kept strictly secret.".
In May 1941, with Germany's assault against the Soviet Union imminent, four Einsatz groups were assembled. Each encompassed 500 to 800 men commanded by leading Nazis. The German army provided help and logistic support. On orders from Hitler, the EG were to break all possible civilian resistance behind the fighting front by ruthlessly destroying those deemed undesirable by the German Dictator or his supporters.
Einsatz units issued daily Top Secret reports that were consolidated in Berlin. These captured records revealed the full depravity of their deeds, despite euphemisms that sought to conceal their criminality. Victims were given "special treatment," "rendered harmless," or "resettled." EG "A" reported it had "liquidated" 118,430 Jews and 3,398 communists. EG "D" reported 90,000 Jews "eliminated." On 29 and 30 September 1941, one unit of EG "C" dispatched 33,771 Jews into a ravine that became famous as "Babi Yar." It may minimally be estimated that between one and two million innocent and helpless civilians were murdered in cold blood by these Nazi killing squads.
The procedures for mass murder were basically similar. Jews and Gypsies, who were earmarked for total annihilation, were ordered to assemble under penalty of death. They were transported by trucks to a hidden site where their clothing and possessions were seized. The helpless captives were directed to stand or kneel near the edge of a large pit that had been prepared. An EG firing squad of about 10 men would shoot for about an hour before being rotated. Each row of victims fell into the pit on top of the corpses that lay dead or dying below.
In the spring of 1942, some EG units were equipped with gas vans for easier "resettlement" of women, children, the old and infirm. Exhaust fumes were piped back into the camouflaged van. When it reached its destination, the passengers were dead.
When EG leaders were convicted at Nuremberg for their crimes against humanity, they showed no remorse. They argued that Hitler had declared that Germany was fighting a defensive war and they were bound to follow his orders. In "total war": against Bolshevism, they said, all potential enemies had to be eliminated by every possible means. Secret killing squads were a military necessity. They left no doubt that they would do it again.
In his Judgment, Presiding Judge Michael Musmanno noted: "...mankind pleads for an understanding which will prevent
anything like this happening again." Nazi Einsatzgruppen wrote the blackest page in human history. Their cruel deeds illustrate the dangers of blind obedience to an authoritarian leader who defies the rule of law.
Benjamin B. Ferencz
J.D. Harvard, 1943, was Chief Prosecutor in the Einsatzgruppen trial at Nuremberg
The Nethercutt Amendment and the International Criminal Court
By Benjamin B. Ferencz
published: September 2004
source: Web Posting
As a former combat veteran, with five battle stars received with my honorable discharge after World War Two, I owe it to the forty-million people who died in that war not to remain silent in the face of official calumnies that endanger our nation and the brave young people who serve in its military forces. I write as a graduate of the Harvard Law School and a former Chief prosecutor for the United States in one of the Nuremberg war crimes trials and one who has devoted almost all of my life trying to help create a more humane and peaceful world under the rule of law.
What follows is an extract from the official US Congressional Record, House of Representatives debate on July 15, 2004, under the heading H. 5881 and H 5882. to Amend the Foreign Operations Appropriations Bill. The views expressed by the Chairman of the House of Representatives, Republican Tom DeLay of Texas, in strongly opposing the International Criminal Court (ICC) are widely shared by other members of the Republican party, as well as some conservative Democrats. The arguments advanced in opposition to the new court are, in my very considered judgment, demonstrably false and deliberately deceptive. They do not serve the interests of the United States or any of its citizens.
Extract from Congressional Record:
Amendment No. 6 offered by Mr. Nethercutt: At the end of the bill (before the short title), insert the following: LIMITATION ON ECONOMIC SUPPORT FUND ASSISTANCE FOR CERTAIN FOREIGN GOVERNMENTS THAT ARE PARTIES TO THE INTERNATIONAL CRIMINAL COURT SEC. __. None of the funds made available in this Act in title II under the heading ``ECONOMIC SUPPORT FUND'' may be used to provide assistance to the government of a country that is a party to the International Criminal Court and has not entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country. The CHAIRMAN. Pursuant to the order of the House of today, the gentleman from Washington (Mr. Nethercutt) and a Member opposed each will control 5 minutes. The Chair recognizes the gentleman from Washington (Mr. Nethercutt)
Mr. NETHERCUTT. Mr. Chairman,...We have an obligation to protect our Armed Forces from unconstitutional extraterritorial prosecution. Moreover, this amendment sends a powerful message to the world community that when we commit U.S. troops overseas we will insist that they be protected by Article 98 agreements, if the Security Council will not do its part.... The CHAIRMAN. The gentleman from Arizona (Mr. Kolbe) is recognized for 5 minutes. Mr. KOLBE. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, let me just say that I agree with the motivations of this amendment, but I absolutely have to oppose the substance of it. The reason I do so is because I think it is going to accomplish exactly the opposite of the intent of this amendment....If we accept it, the U.S. will be hamstringing itself, placing a straitjacket on its diplomatic tools, when we have a lot of U.S. national security objectives that must carry the same or equal weight as securing Article 98 agreements. I urge a ``no'' vote on this... Mr. Chairman, I am happy to yield 1 minute to the gentleman from Texas (Mr. DeLay), the majority leader.
Mr. DeLAY. Mr. Chairman, Let me see if I have got this straight: The United Nations has created an International Criminal Court, a shady amalgam of every bad idea ever cooked up for world government. The United States, its President, this Congress and the American people has categorically, unequivocally and completely rejected the ICC and its insistence on threatening the American people with prosecution. We reject its laughable legitimacy, we reject its U.N.-American denial of civil rights, and we reject its anti-American politics. And yet the ICC still asserts jurisdiction over the American people, including American soldiers fighting the war on terror and still salivates at the prospect of prosecuting one of us for anything the U.N. does not like. Now, some nations who receive economic support from the United States may use the money we give them to arrest and hand over American citizens to the U.N.'s kangaroo court? I do not think so. President Bush has shown great leadership by removing the United States from the treaty creating the ICC, and Congress has passed legislation, the American Servicemembers Protection Act, to ensure our soldiers and peacekeepers around the world are protected from prosecution in it.
Federal law now requires all countries who seek American military assistance sign an agreement assuring us they will not hand over our soldiers to the ICC; and, since its enactment, more than 90 countries have signed such an agreement. The ASPA has proven to be a valuable tool in the war on terror, and the Nethercutt amendment takes that leverage to the next step, making American economic support contingent on a promise not to turn over our troops to the ICC. The Nethercutt amendment will forestall any attempt by a foreign country that receives American economic aid to arrest and extradite American soldiers to Kofi Annan's kangaroo court. Now, let us be real clear: The ICC presents a clear and present danger to the war on terror and Americans who are fighting it all over the world. The United Nations just last month refused to extend protection from the ICC to American troops abroad. This was at once an ominous sign of things to come and an urgent call for Congress to do its duty and protect our men and women in uniform. That is exactly what this vote is. If you want to go home to your constituents and tell them that you think that their tax dollars should go to foreign countries who allow American soldiers to be imprisoned and shipped off to Brussels without their constitutional rights, then, by all means, vote no on the Nethercutt amendment. If, however, you think American troops should retain their human and constitutional rights even when they step on foreign soil and if you think American economic support should only go to countries who guarantee such protection for our soldiers, then stand with the American people, the President and the men and women winning the war on terror and vote yes.... (End of extract)
A Response to Congressional Slander of the International Criminal Court
By Benjamin B. Ferencz
published: July 2004
July 18, 2004
Don Kraus and Heather Hamilton, of Global Solutions, have forwarded information about recent congressional action that is very disturbing. On July 15, 2004, Republican Congressman George R. Nethercutt Jr, introduced an amendment to the Foreign Operations Appropriations Act (H.AMDT.706 (A015) amending H.R. 4818) to eliminate Economic Support Fund Assistance to any countries that do not sign bilateral agreements exempting US nationals from the jurisdiction of the ICC.
"My amendment," said Congressman Nethercutt, "would simply give the President an additional tool to protect our troops by prohibiting Economic Support Funding as well as military assistance to the governments of countries that are both parties to the ICC and have not signed Article 98 agreements....We have an obligation to protect our Armed Forces from unconstitutional extraterritorial prosecution." His further reference to the Security Council's refusal to accept a US resolution to the same effect, signaled the Congressmen's expressed desire to "send a powerful message to the world community" that the US would protect its interests "if the Security Council will not do its part."
Representative Nita Lowey, a Democrat from New York spoke against the amendment, ad did Republican Congressman Jim Kolbe of Arizona. The Republican Majority Leader, Mr. Delay of Texas, let loose a blast in support of the amendment, saying: "The United Nations has created an International Criminal Court, a shady amalgam of every idea ever cooked up for world government. The United States, its President, this Congress and the American people has categorically, unequivocally and completely rejected the ICC and its insistence in threatening the American people with prosecution. We reject its laughable legitimacy, we reject its un-American denial of civil rights, and we reject its anti-American politics. And yet the ICC still asserts jurisdiction over the American people, including American soldiers fighting the war on terror and still salivates at the prospect of prosecuting one of us for anything the UN does not like."
The amendment passed by a recorded vote of 241 to 166. It now goes to the Senate for further action. A warning signal has been sounded. If concerned citizens fail to respond, we will have only ourselves to blame for the consequences. I should be recognized that Mr. DeLay's vituperations are not supported by the facts -- to put it very mildly. There are countless articles by very respected international legal authorities, including the American Bar Association and every former President of the American Society of Intentional Law, demonstrating that it is in the interests of the United States to support the ICC. The Republican opposition to the Court seems not to be interested in the facts or the truth. Nor do they seem concerned that the attitude of exceptionalism and unilateralism expressed by this Congress must cone as a slap in the face not merely to the United Nations, the Security Council but also to every nation that has ratified the Statute for the ICC.
The ICC was created to hold accountable those leaders responsible for genocide, crimes against humanity and major war crimes, under clear laws that must apply equally to all. It is carefully supervised by the United Kingdom, Canada, Australia, every member of the European Community and a total of more than ninety nations that comprise the Assembly of State Parties. No Prosecutor human history has had more controls and restraints and the Court has no enforcement authority. To suggest that they are all salivating for the blood of US soldiers is --. You fill in the adjective!.
To insist that established international law binds everyone except the United states is a repudiation of the most important principle espoused by our government at Nuremberg. No other country makes that argument and it is completely unfounded. t must be seen as a slap in the face of all other nations. When we need all the foreign help we can get, Is that a way to make or keep friends? Let your Senators and the other nations, as well as the voters, hear your views.
From Nuremburg to Rome: A Personal Account
By Benjamin B. Ferencz
published: February 2004
source: Justice for Crimes Against Humanity, Chapter One. Edited by Mark Lattimer and Philippe Sands QC (Hart Publications)
Prosecuting crimes against peace and humanity was not invented at Nuremberg in 1945. Since ancient days, the legality of was itself and how wars were waged had been debated by renowned scholars from Plato to Grotius. Over 200 years ago, Immanuel Kant’s Zum Ewigen Frieden called for the protection of peace and human rights through the rule of international law.
A 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 offences 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 offence against international morality and the sanctity of treaties’. Lesser leaders, accused of various atrocities, were also to be handed over for trial.
Germany promptly announced the treaty as a Diktat. The Kaiser found refuge in the Netherlands 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-Briand 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 labour, 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 deeds in a court of law.
PRELUDE TO NUREMBERG
When the United States entered World War II, I applied for an assignment in army intelligence but was disqualified because if my foreign birth. The Air Force turned me down because I was only five feet 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 honourably 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. Professor Sheldon Glueck, for whom I had worked as a research assistant at Harvard, had written a book on the prosecution of war criminals. When Washington turned to him for guidance, he suggest that the army try to locate me, noting that I had just written an article on the rehabilitation of army offenders which identified me as a corporal with the 115th AAA Gun Battalion. 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 camp 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, 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 US 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 US 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 of German Field Marshal Hermann Goering and other Nazi leaders accused of war crimes was already underway before the International Military Tribunal (IMT) at 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. 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 – like myself also a refugee from Transylvania – for a pleasant European sojourn at army expense. It turned out to be quite an unusual honeymoon.
THE TRIALS AT NUREMBERG
On 8 August 1945, 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 the Charter creating the International Military Tribunal 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: crimes against peace (planning and waging aggressive war); war crimes (prohibited by custom and the Hague Conventions); and crimes against humanity (such as genocide and similar persecutions against civilian populations).
Only leaders or organizers or investigators 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. The official position of the defendants would not free them from responsibility. The provisions of the 30 Articles were carefully designed to assure a fair trial for the accused.
The principal architect of the IMT Charter was Robert H Jackson, on leave from the US Supreme Court. Justice Jackson’s opening statement as the Chief Prosecutor for the United States 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. 
Twenty-four major Nazi war criminals were placed on trial. Defendants were represented by competent council 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 to 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’. Of the 24 original defendants, one hanged himself before trial and one was pronounced medically unable to attend. Twelve were sentenced to hang, including Goering, Martin Bormann, Ernst Kaltenbrunner, Hans Frank, Joachim Ribbentrop and Alfred Jodl. Seven other received prison sentences of between 10 years and life.
Three defendants were acquitted.
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 crime 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 if 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 customary 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 the IMT required collaboration from the many segments of the 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. The accused included medical doctors responsible for illegal human experiments, jurists who distorted law to achieve Nazi goals, high-ranking military officers responsible, Foreign Ministry officials who helped plan aggression and industrialists who seized foreign properties and worked concentration camp inmates to death. 
There were 177 defendants in all put on trial, of whom 35 were acquitted. These 12 trials, with only American judges on the bench, further clarified international law and made plain (contrary to the view of the IMT) that crimes against humanity could be punished even if committed in peacetime. The law had taken another step forward to protect humankind.
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. Totalling some 3,000 men, these extermination squads were in fact to murder Jews, gypsies and perceived opponents of the Hitler regime. 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 the Foreign Ministry 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 counsels from other cases and 30 days before trial made available to the 44 German defence 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 phoney 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 defenceless 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 present, 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 Former Yugoslavia, concluded his presentation by quoting verbatim the warning I had articulated in September 1947. 
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.  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 organisations 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 Organisation (URO) to assist needy claimants. It was probably the biggest legal aid society in the world with a combined staff exceeding 1,200 persons in 19 countries, including 250 screened German lawyers supervised by former Nazi victims.
Considering that there were no precedents for such programmes 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 US 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 prosecution, 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 the victims of crimes against humanity were entitled to restitution, compensation and rehabilitation as a legal right. 
ESTABLISHING INTERNATIONAL NORMS
In addition to the trial at Nuremberg, 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.
On the other side of the globe, 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 the US nuclear bombing of Hiroshima was a crime against humanity. A dissenting opinion by Tokyo Judge Pal of India (who would have acquitted all 28 defendants) maintained that all nations must share some responsibility for war and its inevitable consequences.
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 (Vespasian Pella, Donnedieu de Vabres and Raphael 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 in Article 6 of the Convention to the jurisdiction of the state where the genocide took place or 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 UN 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 General 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, later headed by legal expert Professor M Cherif Bassiouni, to investigate. He confirmed and documented massive atrocities reminiscent of World War II. The time has finally come – for the first time since Nuremberg – to reach for the rule of an international tribunal to punish shocking international crimes that could no longer be ignored.
THE SECURITY COUNCIL ACTS: THE 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 in Resolution 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 organisation and procedures, the assistance it was to receive from states and similar essentials.  The jurisdiction of the proposed tribunal was limited to serious violations of international humanitarian law (genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949 and customary war crimes) committed in the territory of 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 defence 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 11 judges from various regions of the world (including the first President Antonio Cassese from Italy, later succeeded by Gabrielle Kirk McDonald of Texas) agreed upon detailed rules for fair trial. Defence lawyers and prosecutors (led initially by Richard Goldstone of South Africa’s Supreme Court and later by Louise Arbour of Canada and Carla Del Ponte from Switzerland) earned respect for their competence and dedication. Tribunal decisions, including the appeals, were thoroughly researched and persuasive.
At the outset, the number or cases was very limited but by 1998 there were two convictions (the first convict, Dusko Tadic, was sentenced to 20 years) and four trials were in progress simultaneously. Two new courtrooms were built with donations from Britain, the Netherlands and the US. Some accused were surrendering voluntarily. Witness protection programmes, 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, 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 Tribunal was not free of problems. Co-operation by states like the Federal Republic of Yugoslavia (as well as Croatia and Bosnia), whose nationals were indicted and whose Constitution prohibited their extradition, was less than exemplary. The Tribunal 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 army commander General Ratko Mladic, charged with massive war crimes and crimes against humanity, diminished respect for both the Security Council and its ad hoc criminal tribunal. David Scheffer, special US Ambassador for War Crimes, warned: ‘their day before the Yugoslav Tribunal will come’.
The initial hesitation to use UN forces to arrest wanted suspects was gradually overcome as the political situation was further established and risks reduced, and more and more indictees have been detained by international forces. In 1999 the Prosecutor’s Office issued its most high-profile indictment: that of the then-serving Yugoslav President, Slobodan Miloševic, for crimes against humanity. By April 2003, there were in detention, eight provisionally released and 24 accused still at large. By that same date, the Tribunal had handed down sentences to 32 accused and found five not guilty.
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 under Resolution 955 and followed the pattern of the ICTY. An international war of aggression was not an issue and only human right crimes were 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. In Rwanda, the administrative problems for the justice system 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 the 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 has slowly been made. High-ranking officials are under indictment and in detention in Arusha. Witnesses who dare not to 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 – former Rwandan Prime Minister Jean Kambanda – 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’. 
A PERMANENT INTERNATIONAL CRIMINAL COURT
The two special tribunal 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 impurity 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.
The initiative for putting an International Criminal Court (ICC) back in the UN agenda came in 1989 when Prime Minister ANR 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, 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. UN 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 in April 1998, much progress had been made but many differences, indicated by squared brackets around alternative texts, remained unresolved.
The final negotiating conference took place in Rome that summer. 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 17 July 1998 by a vote of 120 in favour, 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’.  In a letter I received from ANR 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. 
The United States, China and a reluctant Israel were among the seven states that voted against the Statute – each for different reasons. (Since the vote was not recorded, the identity of the other four negative voters is uncertain, but has been reported to include Iraq and Libya.) 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 honoured to sign but reneged when words were inserted making population transfers a possible war crime.  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 ICC 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. Under Article 126, the Statute could only go into force after it was ratified by at least 60 nations. 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, and the crime of aggression. But there were severe limitations on that jurisdiction: the Court could act only on 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; and in certain cases, the defendant could not be indicted unless the state of his nationality consented to the trial. In addition, the Court could only 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 Court’s 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’.  The ‘crime against peace’ was enshrined as the primary target of the Charter of the International Military Tribunal at Nuremberg. Telford Taylor agreed that the most important crime was war-making itself.  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 reflection, 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 right and the peace of people everywhere.
On 11 April 2002, more than half a century after Nuremberg, the number of ratifications needed to bring the ICC Statute into effect on 1 July 2002 was exceeded in a ceremonial presentation at the United Nations. In appreciation for having placed the item of an international criminal court back on the UN’s agenda, President Robinson of Trinidad and Tobago was invited to address the assemblage. In his moving remarks, he paid tribute to my dedication to our shared goal for so many years. He noted that I was sitting in the balcony. I cannot deny that I was very touched when the hall burst into loud applause. A dream of my youth was becoming a reality. A milestone had been reached in advancing the rule of law for the protection of all humanity.
 21 Nov 1945; see Trial of the Major War Criminals before the International Military Tribunal (the ‘Blue Series’), 14 Nov 1945-1 Oct 1946 (US GPO, 1947-1949); T Taylor, The Anatomy of the Nuremberg Trials (Knopf, New York, 1992).
 See Trial of War Criminals before the Nuremberg Military Tribunals Under Control Council Law No 10 (the ‘Green Series’), Oct 1946-April 1949 (US GPO, 1949-1953); 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’, July-Aug 1948, Journal of Criminal Law and Criminology, 144.
 A/52/375, S/1997/729, 19 September 1997 46
 US Military Government Law No 59, 10 Nov 1947
 ICC Statute, Art 75
 S/25704, 3 May 1993
 UN Press Release SG/SM/6687, L/2896, (2 Sept 1998)
 Press Release, L/ROM/23 (18 July 1998)
 Letter to the author dated 3 Sept 1998.
 Statement by Eli Nathan, Head of the Israel Delegation, (17 July 1998)
 Report to the President, 6 June 1945, International Conference on Military Trials (London, 1945) 52; reproduced in B Ferencz, Defining International Aggression (Oceana, Dobbs Ferry NY, 1975) at 370.
 Ibid, at 64.
Benjamin Ferencz interviewed on radio by Mort Mecklosky
By Benjamin B. Ferencz and Mort Mecklosky
published: December 2003
source: State University of New York at Stony Brook Radio (WUSB)
Mecklosky: I believe I have Ben Ferencz on the line. Ben?
Ferencz: Good Morning.
M: How are you?
F: I am fine. Greetings to everybody in Stony Brook. I hope you’re not freezing.
M: (laugh) I’m not. It’s chilly, but it’s not bad. The sun was out the last time I looked. And so it’s not bad, it’s tolerable.
M: Ben, and how are things in Florida? Good?
F: Well, you are holding me up from going swimming this morning. But, we’ll forgive you.
M: OK. I’m glad I found you. You were a prosecutor following WWII at the Nuremberg Trials, yes?
F: That’s correct.
M: OK. Nazi war crimes, okay. And we’re talking international law. I understand that it’s a violation of international law to go to war without approval of the UN Security Council when not under armed attack. Is that true?
F: Well, there are differences of opinion. In my opinion, any violation of the United Nations charter is a violation of international law. Since the charter supercedes all national laws and has been accepted and ratified by all of the member states. The charter says specifically that you are prohibited from the use of armed force except under very restricted circumstances. And those are if you are subjected to a direct attack by someone else and until the Security Council can respond to restore order, you can defend yourself. Those were not the conditions which existed in the case of the United States’ invasion of Iraq. Now, there are some international lawyers who take a different view and they say the charter was written before the nuclear age and you can’t expect any nation to wait to be destroyed before it responds to a nuclear attack. And therefore they invented the excuse that Saddam is creating weapons of mass destruction and has them and is ready to go and we have to, therefore, intercede even though it does not comply with the UN charter. So we do have this division of opinion and since we don’t have any enforcement mechanism on an international scale despite the charter requirement that we set up an international military force we’re stuck with the kind of situation we have today.
M: Now, if Saddam Hussein or any nation has the nuclear weapons and we consider them a threat are these people saying we can go and invade them and go to war against them? Is that their position?
F: Well, that seems to be the administration’s position, that preemptive strikes are permissible. It’s preemptive self-defense. My difficulty with that is that laws have to apply equally to everyone and if we assume that we have that right you must assume that other nations have the same right. And that would certainly pose an immediate threat from such countries as North Korea, which we know has such weapons, and India and Pakistan and Israel and France and England and all the other nations that may have nuclear weapons now or in the near future so this doctrine of preemptive self-defense, to me, is a prescription for self-annihilation in the long run.
M: According to that we can then, in their minds, go to war against North Korea or any of the other nations that have nuclear weapons if someone here feels that they are a threat.
F: That would be the logic of the president’s recently declared policy for the United States.
M: How many lawyers, international lawyers of international law agree with that, or are most of them critical of the US and its invasion?
F: I think most of them are critical, there are a few who d agree with that for example State Department lawyers and Pentagon lawyers but most – not only those, there are some academic lawyers who take the same point of view and it’s a conservative point of view – of those who believe that armed force is more important than the force of law.
M: Alright, so in your view, the US is guilty of violating international law.
F: In my opinion, yes, if we did have a legal test of that I would reach that conclusion.
M: Now what happens if we assume some nation has the nuclear weapons or weapons of mass destruction and following the invasion we find out we don’t have them? What’s the procedure to punish such a nation that’s gone to war?
F: We say, “Ooops, I’m sorry about that, kid.” And to those who were killed, and to their survivors you say, “Well, we meant well, but it didn’t work out as we expected.”
M: Alright so in your words the US repudiated International Criminal Court.
F: Well that they have certainly done. We are in the process now of creating a worldwide international legal criminal system. I’ve been working on that for 60 years. And we only recently, as a matter of fact, on March 11, 2002, I was in The Hague when we swore in the judges and shortly after that the prosecutor for the new international criminal court, which ahs been accepted by all the NATO allies of the US; has been accepted by over 90 nations, and the court is beginning to function. They don’t have a defendant yet, they have just started to work a few months ago. They can only deal with crimes after July 1, 2002. But the US has been violently opposed to that court under this administration. The previous administrations supported the idea of such a court and the fact that he US opposes it and is threatening to kill this infant in its cradle causes great concern to me.
M: If the US opposes the international criminal court and has taken action that you consider a violation of international law, does that make us a rogue nation a nation that violates?
F: At the moment the international criminal court that we’ve set up in The Hague does not have jurisdiction to deal with the crime of aggression, which would be the issue here. And they are waiting till they get another definition of aggression which is acceptable to the Security Council. It may be some time before that happens. So in following the Nuremberg principle, the invasion of Kuwait by Iraq was a clear case of aggression the invasion by the US of Iraq I think would also qualify under the Nuremberg principles as a violation of international law.
M: Now, has the US violated it at earlier times? What about when we went into Yugoslavia as it was having its civil war?
F: We did it in Panama, we did it in Latin America, we’ve done it in other places as well and nobody’s made much of a fuss because the international legal order was still in the process of being built. And we have to encourage it to be built properly. Which means with sound judges, clearer laws, courts with clear enforcement power, and we’re getting there slowly. But it’s a very slow process because we all were born into a world of sovereign states where it was felt that the king could do no wrong. He was above the law, he was the sovereign. And we thought that with the Declaration of Independence and the Magna Carta we put an end to that, but obviously we have not yet.
M: What’s a response that a people or country can do to a dictator who is abusing his own citizens? Is there any recourse?
F: These are crimes against humanity. If that tyrant can be arrested and brought before a court, the court in The Hague now, the international criminal court newly established, has a whole list of crimes against humanity and war crimes which are punishable offenses by that court and if they – this came up in the case of Pinochet who was arrested in England as you know for crimes committed while he was the dictator – and so we are again moving in that direction. And there are the beginnings if such courts, we’ve got to encourage the strengthening of such courts rather than the sabotaging of those courts, which is happening now.
M: Ok, so you can arrest this, but you go into a nation like Chile – they caught Pinochet in England – but suppose you have a dictator that doesn’t leave his country and yet brutalizes his people to the degree that the world is aware of that. Can the UN Marshall put pressure on him or even bring in an international group to do something if he doesn’t leave his country?
F: The UN does not have its own military force, it is dependant upon contributions from member states. But they did pass a resolution after the Iraqi invasion of Kuwait calling upon all nations to use all necessary means to expel the aggressor from Kuwait and to restore peace in the area. In my opinion as a lawyer, I would say that phrase was sufficiently broad to authorize the invading forces to proceed to Baghdad and arrest the man who was disturbing the peace in the area. And that’s what they should have done 12 years ago. Unfortunately, they didn’t do that. The then President Bush, father of this president, felt that his authorization was not that specific from the Security Council and why should he continue to kill people and proceed. I wrote a long article at that time, a law review article, saying that there was a mistake that Saddam Hussein would continue to thumb his nose at the world community until he was arrested. So the justification for proceeding into Iraq again should have been not to declare war on Iraq – because that’s illegal – we have no basis for that. But, to say you are going in to arrest a criminal and those who block the arrest become accomplices and accessories to the crime – that would have given us a legal justification which unfortunately we didn’t do because the feeling of some of the people in the Pentagon was who needs law, we’ll go ahead and grab him. And now we got him and they don’t know what to do with him.
M: Now, there was a justification because he had violated the sovereignty of another nation – Kuwait – but suppose he didn’t do that?
F: Well of course he’d done everything else, crimes against humanity, against his own population, he was using poison gas against the Kurds, war crimes, when they entered Kuwait, rape, pillage everywhere. This guy has committed every crime in the book. If I had him in Nuremberg, it would take me two days to nail him on the evidence that I saw presented in the UN at that time, about the poison gas etc.
M: Ok, but if his crimes are just directed against his own people, what is the world allowed to do?
F: The world has changed, my friend. There was a time you could do that and get away with it. Not after Nuremberg, you couldn’t. Genocide is an international crime. No nation, no person has a sovereign right to commit genocide and crimes against humanity against anybody and that’s what we developed in the subsequent Nuremberg trials after the trial against Goering, and that is generally accepted today so that the man saying, “Well, I’m killing my own people, it’s none of your business,” that’s what Adolf Hitler might have gotten away with before we went to war – they can’t get away with it anymore today, I hope.
M: Ok, because there is some concern that people say that – no problem with the invasion, but the violation is within one’s own border and you think, that doesn’t hold anymore because people remember that Hitler was brought to justice, not for what he did to the Jews in Germany, but what he did to the Jews in Poland.
F: That’s correct. But that also changed. It became clear in the subsequent Nuremberg Trials that even crimes committed without a war, crimes against humanity, are punishable. The right of a sovereign to abuse his own citizens disappeared and it began with the Declaration of Independence in the US. It was a big step forward at that point.
M: Is going to war without the approval of the Security Council, as the US did in Yugoslavia and also in Iraq, is that a crime?
F: Yes, it is a crime. It’s a crime of aggression, a crime against peace. Now unfortunately, we don’t have a court competent to deal with that crime today and the result is that those who have the power exercise that power and defy the law. In the long run, I think that’s very dangerous because the law must apply equally to everyone and we say, “No it doesn’t apply to us.” This is an untenable position which even our friends don’t agree with, and we are antagonizing all of our friends, our allies by telling them that if you dare to send an American national to The Hague for any reason we will declare war on you, and we will cut off our aid to you and we will put economic sanctions against you and they say “Do you want the law to apply to everybody except you?” And we say, “Yes, because we have special responsibilities and therefore we have title to do that.” And that doesn’t sell – that doesn’t fly.
M: Alright. During the Viet Nam War and earlier times in history there were things called civilian tribunals. Would you suggest that is a way of attempting for the citizens of this country or the world to address the violations of international law of the Bush Administration?
F: The Bush Administration is not on trial at the moment. And I doubt if they will be. But if you’re going to have that kind of a factual situation as we have in Iraq, I think the first trial should be a trial which is absolutely fair and should include all the principle perpetrators and planners if the crimes which occurred. There may be other trials of a lesser nature as there was in Germany, the denazification proceedings as there are now in Rwanda, but they have 100,000 people and they can’t possibly try them within the next 20 years unless they have an accelerated process and so we would have to do that. In Country A – I don’t like to characterize a specific country because then the emotions get involved – but if the leaders of Country A decide they want to attack Country B, illegally, they should be put on trial. If they are supported by a massive crime by thousands of people you can’t possibly have international trial - for that you may have to look to local trials.
M: Let me hear that again. If one breaks international law by invading another country those leaders that do that should be put on trial. Does George Bush satisfy that?
F: I don’t want to answer that because everybody’s presumed to be innocent until found guilty, including Saddam Hussein, including Hermann Goering. They are entitled to a fair trial, state their defenses and be judged by a fair jury or judges.
M: I’m speaking with Benjamin F., a prosecutor at the Nuremberg Trials for Nazi was crimes after WWII. What is your suggestion for the people of this country who are in opposition to what the government is…
F: We had a very good formula from the president himself – regime change – but the regime change should be in Washington. I don’t think there is any possibility of persuading those who hold the reins of power on Washington that what they are doing is wrong or illegal. They believe that force will prevail and anybody who believes to the contrary is naïve, is idealistic, and I don’t think there is anything we could say to change their way of thinking. Therefore, this being a great democracy, we should vote for other people who believe in the rule of law and are ready to be bound by it. Then I hope it will move forward to a more peaceful and humane world than the one we have today.
M: Is anybody in the mainstream media picking up this story or are they all going on to congratulate the president because the capture of Saddam Hussein made the whole thing worth while?
F: Mostly they are going on to applaud the president. This is a very patriotic and loyal country. They respect the commander-in-chief and they will rally to his cause no matter what it is. So we are now going through that but I hope that when this enthusiasm dies down a bit and people begin to look at the facts and ask themselves was all this really necessary, wasn’t there a better way of doing this? And if there isn’t a better way, can’t we build a better way, can’t we start working at a more peaceful way of settling our differences rather than a more violent way, and when they reach that conclusion, then perhaps they’ll vote other people into power who have different policies.
M: There are some in this country who are attempting to impeach the president for high crimes and misdemeanors. What’s your response to that? Are there grounds for impeachment?
F: Anybody can accuse anybody of anything in this country and you can usually find a lawyer who’ll represent any cause even on a contingent fee, but the fact that there is an accusation doesn’t mean that he’s guilty and the people have a right to defend themselves. And you know we indict and try to impeach presidents for all kinds of causes as Mr. Clinton will tell you.
M: Right, but the situation now is a little different, we’re not talking about an individual’s personal behavior, we’re talking about someone bringing us to war, causing casualties, both to our own troops and to the rest of the world and if he has done this in violation, are these not grounds for bringing charges against the president? Are they grounds for it, I’m not saying he’s guilty, but are there grounds for developing an attempt to impeach him?
F: Well, as I’ve told you, there are international lawyers who hold a different point of view, and an impeachment proceeding would be an opportunity to test the law on this subject and to see what should apply in a fair way under these circumstances.
M: Ok, Now what about Saddam Hussein and the trials that await him. Is that something that the US should be the main participant in or should that be an international court...?
F: I think the US should lay low on that as much as possible. They already hate is enough in that country, we don’t have to give them grounds for more. Should the US be the moving party, the visible moving party on this, I think we will generate more opposition and more determination on the part of the Muslim world as well as the Iraqi defendants and their supporters in the country. I think at the present circumstances, the Iraqi provisional government has already drafted the statutes for a local Iraqi court to try was criminals. The statute is not bad, it provides for all Iraqi judges and is very vague about the prosecutors, staff and the rest of the staff which indicates to me that they would be amenable – and they should be because I don’t know whether they can really run such a trial – it’s a complicated business – to accept assistance from international legal experts to assist the prosecutors and the defense and the administration of such a tribunal. If they’re able to do that, then they would be in a position of a country able and willing to try the perpetrator of their own nationality and even under the principles for the new international criminal court they would be given priority to try their own defendants.
M: I’ve been speaking with Benjamin Ferencz, prosecutor at the Nuremberg Trials for Nazi war crimes after WWII. We’re talking about a war in Iraq and international law. I want to thank you for being available, Ben.
F: I hope this will lead to a more peaceful and humane world.
M: Me too, have a nice swim. Take care.
What to Do with Saddam Hussein Now
By Benjamin B. Ferencz
published: December 2003
source: Web Posting
The apprehension and arrest of Saddam Hussein, the former President of Iraq, offers new opportunities to advance the rule of law. Vengeance begets vengeance. As was demonstrated at Nuremberg after World War II, even the vilest criminal deserves a fair trial. The world legal order is gradually moving toward a tribunal competent to try all international criminals but, unfortunately, we are not yet there. What should be done now? Let us consider certain basic principles that should be respected.
The offenses attributable to ex-President Hussein since he came to power range from the supreme international crime of aggression, to a wide variety of crimes against humanity, and a long list of atrocities condemned by both international and national laws. It may be anticipated that the accused will maintain his innocence and will try to justify all of his actions as being lawful and necessary in the national interest. He will seek to implicate the United States and its allies. References to the Deity will be asserted to gain support of his follower at home and abroad.
A fair trial would achieve many goals. The victims would find some satisfaction in knowing that their victimizer was called to account and could no longer be immune from punishment for his evil deeds. Wounds can begin to heal. The historical facts can be confirmed beyond doubt. Similar crimes by other dictators might be discouraged or deterred in future. The process of justice through law, on which the safety of humankind depends, would be reinforced.
The existing temporary tribunals created by the United Nations Security Council to cope with the genocide and atrocities committed in Yugoslavia and Rwanda in the early 1990s (to the everlasting shame of the world community) have very restricted temporal and territorial jurisdictions. Iraq is beyond their legal reach. A new interim Security Council court is conceivable but unlikely to be able to overcome political obstacles quickly. The new permanent International Criminal Court (ICC) in the Hague, faced with misguided opposition by the United States, lacks jurisdiction over crimes committed before July 2002. It cannot intervene in Iraq.
Perhaps the most tempting, but probably the worst, alternative would be for the United States to subject its captive to summary judgment and prompt execution by a military court. It would make a martyr of the criminal whose loyal supporters would likely be enraged to increase assaults on Americans wherever possible. The Nuremberg principles, which honored the US and the rule of law, would be undermined.
The best hope for a speedy trial seems to lie with the Coalition Provisional Authority which on December 10, 2003, a few days before Saddam Hussein's capture, issued a "Statute of the Iraqi Special Tribunal." Here too, certain cautions are in order. A fundamental principle of the ICC, already set up in the Hague but not yet operational, makes clear that the nation state of the accused shall always be given priority if it is able and willing to provide a fair trial. The wording of the Iraqi statute calls for war crimes trials run completely by Iraqis but also allows the use of non-Iraqi judges if the Governing Council deems it necessary. It should be possible for expert help to be recruited not merely as judges but also to assist the prosecution, defense and administration so that it is obvious to all that trials and judgment will be fair in every way.
Following the Nuremberg precedent, the first trial should include leading accomplices either in custody or in absentia. Speed is important but the proceedings must be carefully prepared and time limits set on both prosecution and defense to present their case. Not every crime need be included in the indictment. There will be enough evidence readily on hand to justify any sentence. Trials of lesser offenders can follow.
Whether a remorseless mass killer should be sentenced to death is a difficult question. There can never be a balance between the lives of a few mass murderers and the lives of their countless victims. Humanitarian law has moved away from imposing death as a penalty. It should be left to Iraqi judges to decide what is most appropriate to bring peace and reconciliation to their war-ravaged country.
A Letter to The New York Times regarding International Courts
By Benjamin B. Ferencz
published: November 2003
source: The New York Times
To the Editor:
"Plea Deals Being Used to Clear Balkan War Tribunal's Docket" (front page, Nov. 18) depicts Bush administration pressures to wind up the United Nations tribunal for war crimes committed in the Balkans. Speed and efficiency are desirable, but not as a pretext that destroys existing courts and allows terrorists to evade justice.
The misguided Bush administration, in a reversal of policies proclaimed at Nuremberg, seeks to undermine all international courts. Undercutting the rule of law can only encourage more terrorism and crimes against humanity.
BENJAMIN B. FERENCZ
New Rochelle, N.Y., Nov. 18, 2003
The writer was a prosecutor at the Nuremberg war crimes trials.
Misguided Fears About the International Criminal Court
By Benjamin B. Ferencz
published: April 2003
source: Pace International Law Review, Spring, 2003
The temple of the law has been built one stone upon the other. Unfortunately, the edifice upon which the peace and tranquility of humankind rests is far from complete. Every civilized society is based on at least three pillars: 1) a code of laws that define clearly what is permissible or prohibited; 2) courts to resolve differences; and 3) a system of effective enforcement to deter future transgressions. Code, courts and enforcement form a synergistic tripod for an integrated and balanced regime designed to curb international violence by the rule of law. Unfortunately, our interdependent world still lacks many of the vital components needed for stability. Consequently, individuals, groups and nations commit massive crimes against humanity with impunity and resort to illegal military might to settle differences that seem intractable. The world has not yet grasped the reality that law is better than war.
1- Visions of World Peace Through Law
(a) The United Nations
After some forty million people were killed during World War II, world leaders – led by the United States – devised what it hoped would be a more peaceful world order. Collective security was to be safeguarded by a new United Nations Organization governed by rules of international law that would “save succeeding generations from the scourge of war.” Social goals and principles of humanitarian behavior were prescribed in the UN Charter adopted in 1945. Member States were expected to disarm, forego the use of force and rely on international military contingents to carry out Security Council mandates for the maintenance of peace.
In order to gain widespread acceptance, many Charter provisions were couched in language that was amenable to different interpretations. The Preamble spoke of “equal rights of nations large and small” but some were more equal than others. The victorious Allied Powers - US, UK, USSR, France and China – retained the exclusive right to veto any enforcement action by the Security Council. Without that inequitable privilege it would have been politically impossible to muster the needed consent of two-thirds of the US Senate that the US Constitution mandated before any treaty could be ratified. It should have been obvious that without unanimity among the five Powers, the UN would be unable to achieve its lofty humanitarian goals. When idealistic principles are surrendered to realistic politics, humanity becomes the victim.
(b) Nuremberg Trials and the Rule of Law
In addition to the frail UN Charter, the post-war vision of world peace was buttressed by a reaffirmation of the rule of law. Hitler and his henchmen had been warned in 1942 that they would be held accountable for the atrocities being committed by Nazi Germany. Under American leadership, an International Military Tribunal (IMT), that included eminent British, French and Soviet jurists, was convened in Nuremberg in 1945 to hold accountable those German leaders responsible for planning or perpetrating the aggressions, crimes against humanity and war crimes committed in flagrant violation of existing international laws. Twelve subsequent trials, conducted in Nuremberg by the United States, laid bare the criminality of the hierarchy that supported the Nazi terrors.
Aggressive war was held to be “the supreme international crime.” Crimes against Humanity that shocked the conscience of mankind, as well as massive violations of traditional rules of war were also punishable regardless of the rank or station of the perpetrator. Vengeance or retribution against the German people was rejected as a policy. Those leaders found guilty, after a fair trial, were sentenced to death or imprisonment. Justice Robert Jackson, on leave from the US Supreme Court to serve as American Chief Prosecutor at the IMT trials, proclaimed: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” His successor for the dozen subsequent Nuremberg trials, General Telford Taylor (later Professor at Columbia University) reaffirmed the fundamental principle that law must apply equally to everyone. At Nuremberg, the rule of law took a step forward.
The Nuremberg Principles were unanimously affirmed by the first General Assembly of the UN. Committees were appointed to draft a Code of Crimes Against the Peace and Security of Mankind as a foundation for a permanent international criminal court. A UN Convention was adopted to punish the crime of Genocide but nations were not yet ready to accept any international tribunal to punish even that horrendous crime. Because of opposition of a small minority in the US Senate, forty years would pass before the President could ratify the Genocide Convention - and then only with crippling reservations. With no court to try the perpetrators, genocide continued to be committed with impunity in various parts of the world.
2 - What Happened to the Dream?
(a) Chilling Effects of the Cold War
The ideological war between the Soviet Union and the US influenced every decision. UN committees operated on the principle of consensus; that meant, in effect, that every member could veto anything. The absence of an agreed definition of aggression was the excuse given for lack of progress toward an international criminal court. Debates were interminable and inconclusive. US support for the court vacillated. By 1954, several drafts had been considered but the time for the law to take another step forward was “not yet ripe.” In 1974, after decades of futile wrangling, the crime of aggression was defined by consensus. It listed many examples of prohibited acts but the ultimate decision whether aggression by a State had been committed required the concurrence of all five Permanent Council Members. The agreed definition provided new impetus to the UN, but it needed new acts of aggression, genocide and overwhelming inhumanity to shake the diplomats out of their lethargy
(b) The Security Council Asserts Its Authority
In August 1990, Iraq invaded Kuwait, a friendly and neighboring Arab State. It was a case of flagrant aggression accompanied by a host of war crimes and crimes against humanity. The United States, with major oil interests in the area, took the lead in obtaining Security Council Resolution 678 authorizing States to use “all necessary means to repel the aggression and restore peace in the area.” The assertion of Council authority was the type of response the UN Charter had envisioned, but for which political will was usually lacking. In a stunning military victory, led by US forces, Iraq was driven out of Kuwait in a hundred hours. It was sadly ironic that the victors could not muster the will to bring the perpetrators of the international crimes committed by Iraq before a court of justice – as they had promised. Unfortunately, there was still no competent international court in existence.
Nuremberg had taught that only those leaders responsible for international crimes should be tried and punished. Instead, the people of Iraq, many of whom may have opposed the brutal policies of their Dictator Saddam Hussein, were subjected to US-led bombardment and international economic sanctions. The person generally regarded as primarily responsible for the harm was allowed to remain free. Political realists expected the Dictator to be toppled and they feared that the next tyrant, possibly from Iran, might be worse for the US. Politics prevailed over principle. It was a political blunder that would cost the world dearly.
Beginning around 1991, rival ethnic groups in Yugoslavia declared their independence as sovereign States. War erupted, accompanied by campaigns of mass rapes and “ethnic cleansing” bordering on genocide. Having suffered a humiliating defeat in Somalia a few years earlier, when US rangers were ambushed while on a humanitarian mission, the US was unwilling to risk its troops to stop the killings. Instead, the Security Council, encouraged by the US, turned to the rule of law. In Resolution 808 (1993), the Council decided to establish a tribunal “for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.” Within a matter of weeks, an ad hoc International Criminal Tribunal was created. It was a long-overdue building block on the edifice started at Nuremberg.
In 1994, over half a million people were brutally butchered during ethnic conflicts and genocidal slaughter in Rwanda. The massacres could have been prevented but those with the power to halt the killings lacked the will, wisdom or political courage to take the military risks. Instead, in response to justified cries of universal indignation, the Security Council promptly created another ad hoc tribunal for crimes committed in Rwanda. Both of these new criminal tribunals received significant support from the United States. Despite initial start-up problems, they have been functioning reasonably well and have been creating important precedents to uphold and expand international humanitarian law.
With unrestrained violence continuing in other parts of Africa and the world, it became increasingly apparent that a proliferation of special ad hoc tribunals created by the Security Council after the harm had been done, and covering only crimes committed in a limited area during a specific time, was hardly a fair or efficient way to deter international criminality. The improvised ad hoc courts of the Security Council were important new stones added to the international legal edifice but much more was needed to establish universal justice. As the Nuremberg trials had made abundantly clear: to be worthy of its name, law must apply equally to everyone, everywhere.
3 - A Permanent International Criminal Court (ICC)
(a) The Challenge
In 1995, President Clinton, addressing a large audience honoring the memory of Tom Dodd, one of the leading US Prosecutors at Nuremberg, reaffirmed America’s commitment to uphold the Nuremberg principles. By the end of that year, the General Assembly decided to establish a special Preparatory Committee to consider drafts prepared after decades of deliberation by experts on the International Law Commission. Not one State took the floor in opposition. In 1997, when he addressed the UN, President Clinton called for the early establishment of a permanent International Criminal Court. UN committees, representing 185 nations with different legal and social systems, were charged with creating a fair, efficient and effective new judicial regime to try leading perpetrators of massive international crimes. It was a daunting challenge.
(b) The Rome Statute
Following several years of intense deliberations in countless meetings, the competent and determined UN jurists and diplomats were approaching possible compromises on differences of substance, procedure and wording. After five weeks of hectic negotiations that took place in Rome, a final agreement was reached on July 21, 1998. According to the terms of the court statute, the ICC would be incorporated into a treaty that nations could sign and ratify as provided in their own constitutions. 120 nations voted for the Court. 7 voted against it and 21 abstained. The hall burst into wild and sustained applause. Young people from all over the world led the cheers as part of a coalition of almost 1000 civic groups.
Committee Chairman Philippe Kirsch of Canada spoke of “humanity’s finest hour.” US Ambassador, David Scheffer, surrounded by representatives from the Senate and Pentagon, sat glumly silent. The US vote against the treaty was joined by such strange bedfellows as Libya, Yemen, Qatar and Algeria – that many considered “Rogue States.” Israel reluctantly followed in the footsteps of Uncle Sam. Since many concessions had been made to satisfy America’s concerns, the failure of the US to vote for the Court was a big disappointment to the overwhelming majority.
UN Secretary-General Kofi Annan, who flew to Rome for the ceremony, hailed the International Criminal Court as “The hope of future generations.” The Rome Statute was a prototype for a new institution that many considered the missing link in the world’s legal order. It was obvious to all that the new born babe would have to be nurtured and helped to realize its full potential. According to its terms, at least 60 nations would have to ratify the treaty before it would become binding on all. But no one anticipated the vehemence of US efforts to abort the court or cripple it in its cradle.
4 - US Objections to the Court
It is inevitable in every great democracy that there are differences of opinion on most important subjects. The establishment of new international courts with binding authority has always been contentious. It is perfectly understandable, therefore, that some voices in the United States should oppose the idea of a new international criminal court with compulsory jurisdiction over US nationals. The most determined and outspoken opponent of any such tribunal has been Senator Jesse Helms of North Carolina. Similar views are held by other Conservatives in the Congress, the administration and the country. Those who, in good faith, oppose the ICC for valid reasons are entitled to have their opinions considered and respected. Their arguments should be evaluated to determine whether they are well founded and whether or not they serve the best interests of the nation and the world.
Those who favor the ICC are entitled to the same consideration. They see an international criminal court as an essential link in a more humane and peaceful world order that will benefit everyone. Since genocide, crimes against humanity and major war crimes are almost invariably committed with the connivance and support of a government, the absence of any international tribunal will almost surely mean that, unless the guilty regime is overthrown, the perpetrators will never be tried. Supporters of the court feel strongly that the time has come for such impunity to end. They argue that a country torn by civil strife will lack the political will or legal institutions needed to try wrongdoers. If tyrants are able to evade justice, their victims will seek vengeance and take the law into their own hands. Thus, there can be no justice without peace and no peace without justice.
Supporters of the Court admit that the Rome Statute is far from perfect. It is a product of negotiated compromise by very many nations with different views and legal systems. To wait for perfection may mean to wait forever. Shabtai Rosenne, retired Ambassador of Israel and a renowned legal scholar, concluded that the ICC, despite current defects that could be repaired, was a major legal creation that “will shine on the record of the twentieth century.” (41 Va. J. Int’l .L.164, Fall 2000.)
Those who oppose the ICC insist upon absolute guarantees in advance that no US nationals will ever come under its jurisdiction. Let us consider the three main objections voiced by opponents of the Court:
(a) Fear of an Unrestrained Prosecutor
It has been argued that the Statute does not contain adequate restraints on the Prosecutor, thereby risking the danger that Americans may be subjected to political prosecutions that would inhibit US military interventions for humanitarian or national security reasons. No other country has raised this objection. The truth is that no other Prosecutor in human history has been subjected to as many controls as exist in the ICC Statute: Politization of the Court would amount to its suicide.
(b) Protecting US Constitutional Rights
It has been argued that the ICC Statute would deprive US nationals of the right to fair trial as guaranteed by the US Constitution. The truth is that trials by the ICC offer far more protection to US nationals than they would receive if the ICC did not exist. The Statute guarantees “due process” as provided in the US Bill of Rights as follows:
*Presumption of innocence.
*Speedy and public trial.
*Assistance of counsel.
*Right to remain silent.
*Privilege against self-incrimination.
*Right to written statement of charges.
*Right to examine witnesses.
*No ex post facto prosecutions.
*Protection against double jeopardy.
*No arrest warrants without probable cause.
*Right to be present at trial.
*Exclusion of illegally obtained evidence.
*No trials in absentia.
It is true that the ICC Statute does not provide for trial by jury – a right originally intended to protect against secret star-chamber proceedings by the English King. Those who make this argument seem to forget that the Sixth Amendment to the Bill of Rights calls for “an impartial jury of the State or District wherein the crime was committed.” A foreign venue is not likely to be more protective than the international court. No crimes committed abroad are covered by the US Constitution. Members of the military have never been entitled to a trial by jury but are subject to Courts Martial in a military trial. Juries are often unreliable and not used in most countries. It is not unreasonable, unfair or a violation of “due process” for the ICC to accept a compromise that includes such an impressive list of human rights protections for the accused.
Professor Robinson O. Everett, Chief Judge of the Court of Military Appeals, has suggested that Federal Statutes could be amended to completely cover all the crimes under ICC jurisdiction. The ICC, being required by its Statute to yield primary jurisdiction to the US for the fair trial of its nationals, would thereby divest the ICC of any authority over American citizens. The risk that US proceedings would be held to be a sham that would be ignored by the ICC is conceivable but, in fact, is so far-fetched as not to constitute a plausible objection.
The rights contained in the ICC Statute reinforced the conclusion of the American Bar Association in February 2001 that: “The security interests of the United States and of its service members and officials are as fully protected as reasonably could be provided for by an international treaty. Indeed, these national and individual interests are better protected if the US joins the ICC than if we reject it.” It is sadly ironic that those who oppose the ICC as a “kangaroo court,” raise no objection to US detaining suspected terrorists under conditions that deny them rights that would exist for any American tried by the ICC.
(c) US Sovereignty is Impaired
Critics of the ICC argue that the Court infringes on US sovereignty. The truth is that medieval notions of absolute State sovereignty, where by Divine right the monarch and his male heirs were above the law, went out with Magna Carta in 1215 and were repudiated by the US Declaration of Independence. In democratic States, sovereignty resides not in the reigning Monarch, or President, but in the people. The world could not function for one day without the thousands of laws, rules, regulations and agreements that bind all nations to certain commonly accepted standards of behavior. Every treaty, by creating mutually accepted obligations, infringes on the national “sovereignty” of the signatories. But even if there is no treaty, or it is not signed, certain universal prohibitions must be respected to protect the interests of people everywhere.
Rules, written and unwritten, governing permissible warfare have been in existence since man first went into battle. International law, like domestic law, does not advance solely by statute; it grows by practice, custom and binding legal decisions to meet the needs of a constantly changing society. International “rules of the road,” enable this interconnected global society to function more efficiently. Piracy has always been treated as punishable wherever the pirates are captured. The widely accepted codifications by the International Committee of the Red Cross are now binding on everyone – whether or not they are ratified. Genocide, grave breaches of the rules of war and other crimes against humanity are now in the same category. The Rome Statute does not impose any novel obligations since all nations are already bound to respect its restraints. The duty not to commit the crimes is not new; only the mechanism for enforcement is being added via the ICC. Brandishing a tattered banner of absolute State sovereignty is hardly a persuasive argument against the need to bring perpetrators of massive criminality before the bar of justice.
It was the United States that led the world at Nuremberg in establishing the universally binding prohibitions that no person and no nation had a sovereign right to commit genocide and crimes against humanity with impunity. The implied promise was that “never again” would the perpetrators escape judgment. It is to uphold those legal principles and to curb the worst abuses of State power that the ICC was created. Human rights are not diminished but enhanced by the ICC. Jingoistic slogans may be politically appealing but are never an acceptable substitute for reason and the rule of law.
(d) Other objections
Undersecretary of State John Bolton, a leading spokesman for Senator Helms, argued that international law is not really law since it is not binding or enforceable. He considered the Rome Statute too vague – despite its detailed definitions worked out with consent of US negotiators. He did not believe that the ICC could deter the crimes under its jurisdiction and denounced human rights advocates like Aryeh Neier of The Open Society Institute for their “utopian zeal.” He also expressed grave concern that the US might be accused of aggression – despite the fact that the ICC has no authority to consider such a charge until some time after 2009 and only if there is complete agreement on a new definition that recognizes the role of the Security Council. The innocent need never fear the rule of law. Those who seek to exclude aggression from scrutiny are bound to make their weaker and law-abiding neighbors rather nervous.
A more moderate position is taken by Professor Ruth Wedgwood of Yale, an Advisor to the Pentagon who has written extensively and skeptically about the new Court. She notes that the law of armed conflict is indeterminate and new technologies may require actions against unconventional adversaries that some might interpret as legal violations. Giving the US priority to try US nationals for war crimes won’t guarantee justice since the US is not likely to try its own soldiers who are carrying out official instructions and the ICC might then seek to intervene. She argues that US humanitarian intervention or preemptive strikes against weapons of mass destruction may be necessary and should not give rise to criminal indictments –“despite the disapproval of academics.” She refers to “the moral responsibility of sovereign States.” Little thought seems to have been given to the possibility that other nations would assert the same rights to ignore existing law and what the consequences might be for world order. She concludes that it would be wise for the Administration to see how the ICC progresses before deciding whether it is in the US interest to support the Court.
5 - Coercion as Persuasion
When it began to appear that the arguments advanced by opponents of the ICC would not be persuasive to most nations, a more belligerent tactic was adopted by Senator Helms and his Conservative friends. If persuasion wouldn’t work, they reasoned, try coercion. With Pentagon support, the assault against the Court advanced on several fronts: a) Legislation was introduced to prohibit and penalize any cooperation with the ICC; b) The Court would be further undermined by repudiating the US government’s signature on the Rome Treaty; c) All US funds that might aid the Court would be cut off; d) The US threatened to withdraw its forces from UN peacekeeping missions unless they were given absolute legal immunity from foreign prosecution; and e) A worldwide campaign was launched to obtain bilateral agreements to block all assistance to the ICC and guarantee that no Americans would ever be handed over to the international court.
(a) US Legislation to Thwart the ICC
Jesse Helms, throughout his long career in the Senate, had always opposed foreign intervention in America’s affairs. In 2000, he introduced legislation intended to scuttle the ICC. It threatened economic and military sanctions against States that cooperated with the Court. It also authorized the President to “use all means necessary and appropriate” to free any US personnel arrested on behalf of the Court. Critics mocked it as “The Hague Invasion Act.” The Dutch were not amused. Despite its appealing but misleading title, the American Servicemembers’ Protection Act (ASPA) endangered the military more than it protected them. Without an international court to protect their rights, captured US soldiers would be completely at the mercy of their captors.
In support of the ASPA, Helms succeeded in procuring the signatures of a dozen former Republicans, including ex-Secretary of State Henry Kissinger, Defense Secretary Donald Rumsfeld and other distinguished public servants, who supported his initiative that contained the same canards about an unrestrained prosecutor, infringement on US sovereignty, constitutional rights and the country’s ability to pursue terrorists and protect its interests. A very distinguished legal expert, Monroe Leigh, who had been Advisor to both the State and Defense Departments and President of the American Society of International Law, assembled ten former Presidents of the Society to support his conclusion that arguments against the Court were unfounded and unjustified.
A few courageous voices were raised in Congress to support the Court. Senator Patrick Lehigh, Democrat of Vermont, rebutted the false arguments and hailed the Court as an institution that would uphold America’s national interests. He characterized the Pentagon’s demands for a guarantee that no US soldiers would ever come before the ICC as “a totally untenable position.” (Dec. 15, 2000). Senator Christopher Dodd of Connecticut, whose father had been a leading prosecutor at the Nuremberg trials, expressed the same sentiments. In the House of Representatives Congressmen Tom Lantos and Patrick Kennedy pleaded for the Court and against going down the road to isolationism and injustice. On May 9, 2001, Nobel Laureate Elie Wiesel warned the House Committee against “US acceptance of impunity for the world’s worst atrocities.”
After persistent maneuvering, the Helm’s proposal was attached to a supplementary appropriations bill and was pushed through Congress. Relatively minor amendments gave the President discretion in enforcing the legislation. It was signed into law by President Bush on August 2, 2002 as Public Law 107-206. The right-wing argument, that the ICC was a threat to America’s military personnel and security interests at a time when America was at war against terrorists, had great public and political appeal. Once again, politics prevailed over reason.
(b) Revoking a Prior President’s Signature
After careful consideration in the White House, President Clinton instructed US Ambassador David Scheffer to sign the Rome Statute just as the deadline was about to expire on December 31, 2000. Israel promptly followed suit. Signing was a reaffirmation of Americas’ historical commitment to international accountability ever since Nuremberg. Knowing that there was no prospect of getting two-thirds of the Senators to consent, Clinton, seeking to mollify both right-wingers and human rights activists, said he would not recommend that it be submitted for ratification. He wanted the US to stay engaged in order to help shape the Court and remain a key player. As might have been expected, Senator Helms was livid. The next day, the Chicago Tribune quoted Helms saying:: “I will make reversing this decision…one of my highest priorities in the new Congress, this decision will not stand.” It was as if the Senator, backed by the Pentagon, was declaring war on the ICC.
Under the terms of the Rome Statute, the Treaty would not go into effect until it was ratified by at least 60 nations. Despite the fact that some countries would have to amend their national Constitutions in order to be able to accept the jurisdiction of an international court, ratifications came in much faster than expected. On April 11, 2002, the minimum number needed to put the treaty into effect was exceeded. Now retired, ex-US Ambassador Scheffer hailed it as “an extremely significant moment in world history.” There was a joyous celebration at the UN but the UN seat reserved for the United States was empty. Scheffer’s successor, Ambassador Pierre Prosper, said: “There was no need to attend.” On April 17, the Atlanta Constitution commented on US intransigence and petulance saying: “The Bush Administration wants to abandon our historic commitment to the international rule of law.” The Rome Treaty came into force on July 1, 2002 - without the United States.
Senator Helms had warned that if the Treaty were sent to the Senate for confirmation it would be “dead on arrival.” The Conservatives were now in control. On May 6, 2002, Helms' protégé, John Bolton, now Assistant Secretary for Arms Control and International Security, sent a one-paragraph letter to the United Nations: “… the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature of December 31, 2000.” This unprecedented and unlimited repudiation of a solemn Presidential commitment gave rise to an enormous outcry from all over the world. The European Community was stunned. Former US Ambassador William Luers, President of UNA-USA, said the world’s first nation to disavow its own signature served no worthy purpose, undermined US leadership and damaged relations with our allies. Amnesty International called it “a new nadir of isolationism and exceptionalism."
(c) Prohibiting US Funds for the ICC
An Appropriations Act providing funding for the Commerce, Justice and State Departments was amended on June 18, 2001, to prohibit any US funds being expended to assist the ICC in any way.(H.R.2500, Title VI, Sec. 623.). The reasons given for such drastic action were the usual ones voiced in opposition to the Court. There was practically no debate. The party in power controlled the purse and he who controlled the purse called the tune.
(d) No US Peacekeepers Without Immunity
As more nations ratified the ICC Treaty, and agreements were reached on the rules to govern the Court, the fury of right-wing US opposition seemed to increase. On June 30, one day before the Treaty was to go into effect, the US bellowed its defiance in a way that shocked everyone.
Standing alone against all 14 other Security Council members, the US, as it had warned, cast a veto scuttling a resolution extending the mandate of UN peacekeeping operations in Bosnia. It indicated that unless all of its troops were guaranteed complete immunity by Security Council resolution it would withdraw from all UN peacekeeping. It was a frontal assault on the existing international order. All the nations that had accepted the ICC joined in strong protest against the US action. Richard Dicker of Human Rights Watch had called the US threat “an ideological jihad against international justice.” William Pace, coordinator of a vast coalition of non-governmental organizations, said: “The message that they’re delivering is that it’s more important to them to torpedo the ICC than to preserve peacekeeping at the UN and around he world.” After much diplomatic skirmishing, a last-minute compromise was reached that enabled the Bosnia mission to continue. But the US insisted that it would continue to raise the issue with all other peacekeeping missions.
(e) Bilateral agreements to Block Extradition
The Pentagon instructed its attaches in foreign ministries to seek special agreements that would defeat any ICC attempt to bring Americans to trial. Bolton, described as “Bush’s hatchet-man in the State Department,” while denying any intention to oust the ICC, embarked on a worldwide tour to do just that. The US frequently entered into Status of Forces Agreements (SOFA) that required American soldiers arrested for crimes committed on foreign soil to be surrendered to the US for trial rather than being tried under the local national laws. On US initiative, a rather cumbersome provision was written into the Rome Statute (Article 98) to respect such pre-existing treaty obligations. Someone figured out that if new surrender of forces agreements could be concluded along the same lines it might be possible to completely divest the ICC of jurisdiction. The fact that such an interpretation would clearly distort the intended meaning of Article 98, and would violate the Rome Treaty obligation of all parties to assist the court, did not disturb Mr. Bolton.
Ambassador Scheffer, who negotiated the Article 98 text on behalf of the US, wrote in The Wall Street Journal on September 20, 2002 that the Bush administration overreached by trying to use that article to immunize all US nationals. That did not stop Bolton’s campaign of misinterpretation backed up by threats of US sanctions. The European Community was incensed at the brazenness of the US assault and insulted by the notion that they would have accepted a clause that would allow all signatories to undermine the essential purpose of the Treaty. Several States, believing that a situation where they would want to send an American to the ICC would probably never arise, reluctantly concluded that it would be in their political and economic interest to sign on temporarily to the unreasonable American demand. The image of the US as a bully could not be avoided. America’s reputation for integrity and respect for law was surely not enhanced.
6 - Where do we go from here?
The most predictable thing about the future is that it is usually unpredictable. Nevertheless, there are certain historical movements that are detectable and, once perceived, can be influenced by human effort. So it is with the development of the rule of law. There can be no doubt that there has been an evolutionary movement toward the legal control of human behavior in many fields. Pollution of the environment, regulations governing seas, space and the protection of fundamental human rights are among the many areas brought under international controls during recent years. It seems inevitable that the prohibition of massive violence against innocent people should also be prohibited and deterred by law.
(a) Historical Indicators
The problem of creating international courts with binding authority has engaged the government of the United States for over a century. At the “First Peace Conference” in The Hague in 1899, Elihu Root, founder and President of the American Society of International Law and a former Senator and Secretary of State, was a strong advocate for international tribunals. When Great Britain was on the brink of conflict over seizures of neutral vessels as a prize of war, she welcomed the idea of creating a new international court. Proposals for the International Prize Court were on the verge of general acceptance in 1907. President Theodore Roosevelt, in his message to Congress, hailed “the great advance which the world is making toward the substitution of the rule of reason and justice for simple force.” Before all necessary ratifications could be completed, disagreements arose regarding some of the rules that would govern the tribunal. Britannia ruled the waves and insisted on waiving the rules. When no agreement on details could be reached, the widely acclaimed court was torpedoed. The world just missed the boat.
In a speech on December 17, 1910, President Howard Taft called for an international court as “a better method of settling controversies than war.” The need for a criminal court should have become obvious in 1914 when Archduke Ferdinand of Austria was assassinated by Serbian nationalists. Instead of legal trial, nations turned to trial by battle. Amidst the bloodshed of the First World War, France, Great Britain and Russia denounced Turkey’s 1915 massacre of its Armenian minority as “crimes against humanity.” Diplomatic protests were ignored. There was no international court to try or deter the criminals. After countless millions perished, US President Woodrow Wilson proposed a treaty to maintain peace via a League of Nations. A conservative minority in the US Senate foiled his attempt to get two-thirds of the Senators to consent to ratification of the Treaty. Legal experts appointed by the League concluded that an international criminal court should be created to hold accountable those responsible for Germany’s aggressions and atrocities. Their recommendations were quietly pushed aside by the diplomats in charge.
In 1934, King Alexander of Yugoslavia was assassinated by a Croatian nationalist. It was reminiscent of the murder of Archduke Ferdinand in 1914 that had ignited the First World War. To calm the international hubbub, France proposed that an international penal code be drafted to condemn assassinations and that an international court be created to punish terrorists. Two Conventions were drafted by 1935 and revised by 1937 - after passions had cooled. Only India ratified the Terrorism Convention and not a single State ratified the one calling for an International Criminal Court. Neither Convention ever went into force. The US, catering to strong isolationist sentiments, remained aloof. Diplomats trained to think first and foremost of the interests of their own country were unwilling or unable to change their way of thinking. They would soon pay dearly for their indecision.
The failure to hold high-ranking criminals accountable was recalled years later by Adolf Hitler, who commented contemptuously when launching the Holocaust: “Who remembers the Armenians?” The horrors of World War II need not be described here. We will never know how many wars could have been avoided or how many deaths could have been prevented if international courts had been created when proposed. The Permanent Court of International Justice set up in The Hague by the League of Nations could only deal with civil disputes submitted by consenting States. It had no criminal jurisdiction whatsoever. The unconditional surrender of Nazi Germany in 1945 paved the way for the assumption of governmental powers by the victors and the legal creation of the International Military Tribunal at Nuremberg. It was a long time coming. But it was only a beginning.
Our scan of history reveals that fortuitous events and changes in political climate can have a decisive influence on the speed and direction of change. World War I inspired efforts to put the Kaiser on trial for aggression and to hold German officers accountable for their atrocities. The efforts failed. World War II produced the Nuremberg trials, followed by similar war crimes trials in Tokyo and elsewhere. The mass rapes and genocidal acts in Yugoslavia induced the Security Council to set up a special tribunal in 1993 to punish those responsible. The shameful genocide in Rwanda gave rise to another ad hoc criminal tribunal.
Continuing atrocities elsewhere generated talk of more international trials and the beginning of movements in that direction. For almost a century, the US government was in the forefront of those advocating an international criminal jurisdiction. In upholding principles of justice and law, it earned the appreciation and respect of embattled people everywhere. Just as a permanent International Criminal Court was about to come into existence, the Bush Administration became the leader in trying to destroy it.
On September 11, 2001, hijacked American passenger planes were used to crash into the Pentagon and the World Trade Center in New York. 19 "suicide-bombers" perished along with some 3000 innocent people. Americans were horrified, outraged and traumatized. The President declared war on Al-Queda, a militant Muslim organization believed to be behind the attacks. The country was mobilized and reorganized to fight terrorism by every available means. US forces attacked Afghanistan in search for terrorist hiding places. Conservatives threatened to use military and economic sanctions against any nation that failed to assist the US.
The Bush Administration did little to conceal its scorn for the United Nations and international law. Suspected terrorists were seized in various parts of the world, transported to a US naval base in Cuba to be held incommunicado for an indefinite period. The President announced that he would get rid of the regime of Saddam Hussein in Iraq, even if the Security Council did not approve. That was modified somewhat in the face of strong public protest and the US turned to the Council for a resolution requiring UN inspectors to detect whether Iraq still possessed weapons of mass destruction. The American public, frightened by threats of uncontrollable terrorism and the possibility of a new war, rallied behind the flag and the Commander-in-Chief. Europeans were getting even more concerned about what they perceived as a new unilateralism and belligerence by the US.
The ICC Treaty has gone into effect and the Court will start functioning soon – without the United States. A nation that sits sulking on the sidelines cannot remain a leader for very long. The majority of the American people do not agree with the position on the ICC taken by the Bush Administration. The Financial Times of London reported on September 25, 2002 that a survey by the Chicago Council on Foreign Relations concluded that 83% of US nationals supported the use of the ICC to try suspected terrorists and 65% favored the Court even if it might bring a President to trial on trumped up charges. There is no doubt that even some members of the cabinet and other high-ranking officials do not share the negativism and exceptionalism of those in the Defense Department and Conservatives in the Congress who have set their hand and mind against the new Court. When the political climate changes, as hopefully it will, a democratic society will reflect the will of the majority of the people and the noble traditions of the nation.
No one should denigrate the courage or loyalty of patriotic young people who serve in the military. There is no doubt that the planners in the Pentagon make a serious effort to avoid violating the rules of war and the unintentional killing of civilians that is euphemistically labeled “collateral damage.” Despite great admiration for America’s past aspirations and accomplishments, no other nation in the world is prepared to accept the proposition that international law to prevent massive crimes applies to everyone else but not to the United States.
The trash-cans of history are filled with the ashes of great empires that once were the superpowers of their day. The tide of history will not be turned back. In time, when the ICC has proved itself as a fair and workable tribunal, the US Government will recognize that insisting on blanket immunity for US nationals is not a tenable position. The best way to assure that human rights will prevail over human wrongs is to clarify and enforce international law for the protection of all. The best way to protect the US military is by preventing war-making itself. The best way to prevent war is by learning why some young patriots are willing to kill or be killed for their own particular cause. Teaching tolerance and compassion and trying to ameliorate the ills or injustices that give rise to the discontents that spawn recurrent bouts of destructive violence will do more to protect courageous people in uniform than fighting against the ICC. The rule of law remains the best hope for the protection of humankind.
Ferencz, B., AN INTERNATIONAL CRIMINAL COURT – A Step Toward World Peace, 2 vols. (Oceana, 1980)
Lee, Roy, Ed. THE INTERNATIONAL CRIMINAL COURT – The Making of the Rome Statute (Kluwer, 1999)
Sewell, S.B. and Kaysen, C., Eds. THE US AND THE INTERNATIONAL CRIMINAL COURT (American Academy of Arts and Sciences, 2000)
Bassiouni, M.C., THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT – A Documentary History (Transnational, 1998)
Sadat, L.N., THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION OF INTERNATIONAL LAW: Justice for the New Millennium
Letter to the Editor of The New York Times re: the article "U.S. Lists Iraqis to Punish, or to Work With"
By Benjamin B. Ferencz
published: March 2003
source: The New York Times, March 3, 2003.
To the Editor:
Re "U.S. Lists Iraqis to Punish, or to Work With" (front page, Feb. 26):
President Bush has a unique opportunity to uphold the rule of law. If the Security Council fails to issue an unambiguous mandate to use force, the president should respect the will of the world community.
We need a new military objective: upholding the Nuremberg principle that never again will crimes against humanity go unpunished. Our goal should be to bring to trial only top Iraqi leaders. Those who become accessories by blocking arrests will suffer "serious consequences."
No time limits apply to crimes against humanity, and existing courts can be modified to offer fair trials. Judges for the new International Criminal Court are being inaugurated on March 11. Isn't law better than war?
BENJAMIN B. FERENCZ
New Rochelle, N.Y., Feb. 26, 2003
The writer was a prosecutor in the Nuremberg war crimes trials.
Letter to the Editor of The New York Times regarding an Op-Ed on Preemptive Attack on Iraq
By Benjamin B. Ferencz
published: August 2002
source: The New York Times, August 1, 2002
August 1, 2002
(Note: The paragraph marked by “///” was deleted in the published version.)
To the Editor:
Senators Joseph R. Biden Jr, and Richard G. Lugar call for serious discussion of what can be done to remove Iraq's dictator Saddam Hussein from power (Op-Ed, July 31). In reviewing the options and problems, no reference is made to the United Nations.
///When a similar issue arose in 1990, there were detailed congressional debates followed by Security Council resolutions authorizing member states to use "all necessary means" to repel Iraq's aggression and crimes against humanity. On January 16, 1991, as combined military forces led by the United States launched their successful assault against Iraq, then-President George Bush proclaimed to the nation that we had an opportunity "to forge for ourselves and future generations a new world order, a world where the rule of law, not the law of the jungle, governs the conduct of nations." ///
A preemptive military strike not authorized by the Security Council would clearly violate the UN Charter that legally binds all nations.
In debating the options for Iraq, let us never forget that the rule of law remains our best safeguard for a more peaceful and humane world.
BENJAMIN B. FERENCZ, New Rochelle, NY, July 31, 2002
The writer was a prosecutor at the Nuremberg war crimes trials.
Response to Senator Craig's Washington Post Op-Ed
By Benjamin B. Ferencz
published: August 2002
source: Web Posting
Larry F. Craig, Republican Senator from Idaho, has used the Washington PostEditorial pages on August 22, 2001 to launch a vitriolic attack against the United Nations and the proposed new international criminal court. His arguments are demonstrably false and misleading and should not go unanswered.
The Senator maintains that the United Nations has "turned the principle of national sovereignty on its head." He claims that it intrudes into America's constitutional rights in many areas. He ignores the fact that the United Nations has no legislative powers whatsoever and is completely dependent upon agreements reached voluntarily by its member states. He denounces the international criminal court as a "mechanism of global government” that "will wield judicial power over every individual human being" and defendants will "have none of the due process rights afforded by the U.S. Constitution.” He disregards the fact that the court's jurisdiction is severely limited to a few carefully defined crimes of concern to the international community as a whole, its fair trial standards exceed those in the US, and every nation has priority to try its own citizens in a fair trial that will preclude any action by the new criminal court.
Senator Craig asks whether the United Nations should have authority to decide that national political leaders should be put in the dock "and then commit the United States to bring them there?" No nation has made such a suggestion. The Court has no independent enforcement powers and it must rely on cooperation and support from the world community. The United Nations Charter guarantees that only the United States can decide when its troops are used for enforcement.
Craig waives other red herrings: he refers to a possible United Nations trial of "Russia's Vladimir Putin for Chechnya" or "Israel' s Ariel Sharon." He asks whether an American governor could be charged with crimes against humanity for signing a death warrant. He fails to note that it was the United States that took the lead in creating the two existing ad hoc tribunals to deal retroactively with crimes committed in former Yugoslavia and Rwanda. The new criminal tribunal seeks only to deter or punish future acts. It will have no retroactive jurisdiction.
The misguided Senator refers to "the danger to U.S. military personnel deployed abroad" and suggests that a U.S. soldier responsible for one death could be indicted "just for doing his duty." This canard is what inspired the legislation pushed by conservative Senator Jesse Helms in the so-called "Servicemember's Protection Act" designed to abort the criminal court before it was born. A more appropriate title might have been "The Servicemembers' Endangerment Act" since it would leave the U.S. military at the mercy of their captors rather than under the protective mantle of new international laws. The provisions calling for the military rescue of any American held by the new tribunal in The Hague induced some to mock the proposal as The Hague Invasion Act.
The distinguished Senator from Idaho has made arguments that have been repudiated by leading international legal and military scholars. A comprehensive study under the auspices of the venerated American Academy of Arts and Sciences concluded in 2000 that the United States should be taking the lead in shaping the international criminal court. Ten former Presidents of the American Society of International Law concluded that it was in the interests of the United States and its military to do so and "the sooner the better." The American Bar Association, after detailed study, reached the same conclusion. The European Community is unanimous in its support for the court and such leading allies as Canada, the United Kingdom, France and many others have been urging the United States to join nations that are now moving inexorably toward the creation of the new legal institution.
The promise held forth by the United States at the Nuremberg trials over half a century ago, that genocide and similar crimes against humanity world "never again" be allowed to go unpunished must not now be repudiated. Senator Craig, and those for whom he speaks, are, of course, entitled to their opinion. But it is to be hoped that others will not be misled by false arguments and that a careful study of the facts will lead to increased support fore the new court upon which may depend the future peace and security of humankind.
Know the Truth About the International Criminal Court
By Benjamin B. Ferencz
published: July 2002
source: Web Posting
On July 1, 2002, for the first time since the Nuremberg war crimes trials, a permanent International Criminal Court (ICC) was created to hold accountable those leaders responsible for major war crimes and crimes against humanity. As part of an ongoing campaign against the ICC, the United States threatened to withdraw its peacekeeping forces unless the new international court was divested of any authority to try Americans. On July 12, 2002, the United States badgered the Security Council of the United Nations into granting a limited exemption for American peacekeepers. It left no doubt that its opposition would continue unabated. Overwhelming protests from other nations reflected their resentment against every attempt to undermine the new court.
Conservatives intent on destroying the new tribunal have misstated the facts and have done a disservice to our nation and its military personnel. They are entitled to their opinion but they are not entitled to lie to the American public and get away with it.
The main argument made by the US is that American peacekeepers might be subjected to politically motivated prosecutions by the new tribunal. The facts have been egregiously misstated. There is no such danger.
Only crimes committed after July 1, 2002, can be considered by the ICC. Jurisdiction of the court is limited to genocide, crimes against humanity and major war crimes of concern to the international community as a whole. Surely, American soldiers do not intend to commit such crimes. 18 highly qualified judges, male and female, sworn to uphold the law and justice, will be elected from those many nations that have ratified the treaty creating the court.
No investigation can be started by the prosecutor without prior authorization by a three-judge panel. Appeals can be filed with a five-judge panel. The accused's country must be informed and the case transferred to them if they wish to try the suspect. Only leaders responsible for planning or perpetrating the major crimes are the intended targets and only if their own state is unable or unwilling to give them a fair trial. The US is not in that category.
The prosecutor must prove that the defendant knew the act was criminal and intended the unlawful consequences that followed. The Pentagon makes every effort to avoid criminality. Guilt must be established beyond reasonable doubt. Proceedings must be transparent for all the world to see.
At any time, if it appears necessary to prevent interference with pending peace negotiations, the Security Council can direct the ICC to cease and desist for 12 months. That period is renewable without limit. The US insistence upon getting advance immunity now and its involvement of the Security Council implies that the ICC, designed to curb major crimes that threaten peace, is seen by our government as a threat to peace. Such unfounded and absurd allegations make other nations nervous about US intentions.
The US representatives seem to ignore the fact that the tribunal will have the entire Assembly of State Parties looking over its shoulders at all times. The Assembly now numbers 76 nations, including the entire European Community, England, Canada, Australia and other faithful friends of the US. They control the budget and can fire anyone who might be tempted to politicize the office. The ICC has no police force or enforcement mechanism. Its acceptance depends upon its reputation for integrity and competence. Politicization of the court would amount to its suicide.
The American Bar Association, the New York Bar Association and the leading international lawyers in the country, including every living former Nuremberg prosecutor, all agree that it is in the interest of the US and its military to support the ICC. I believe the majority of the American public, if they knew the truth, would share the same conclusion.
The Bush Administration's unparalleled renunciation of President Clinton's signature to the treaty astounded and angered many of our allies. Congressional legislation with the misleading title "American Service Members Protection Act" that plays on the fears and patriotism of uninformed Americans, has just been passed. Among other sanctions, it authorizes US troops to liberate any American detained by the ICC. It is ridiculed by opponents as "The Hague Invasion Act." Arrogant unilateralism does not create world leaders -- nor does it encourage others to help us in combating terrorism.
The US inspired the world at Nuremberg by demanding that never again would crimes against humanity be allowed to go unpunished. We weaken our standing in the world when we insist that law applies to everyone else but not to the United States. No nation and no person has a sovereign right to commit crimes against humanity with impunity.
The best way to protect our military, and the peace of the world, is through universal and equal enforcement of the rule of law for everyone.
BENJAMIN B. FERENCZ , a prosecutor at the Nuremberg war crimes trials.
Benjamin Ferencz Interviewed on Dutch Netwerk Television
By Benjamin B. Ferencz and Karel van de Graaf
published: June 2002
source: Dutch Netwerk TV, Nederland 1
Nederland 1, 8:30 p.m. Tuesday, June 25, 2002
Unofficial Translation by Kate Kruize
Presenter (Karel van de Graaf):
Coming Monday the International Criminal Court will begin in The Hague. It has no building of its own, but it will exist in spite of that. And so from next Monday on, anyone in the world can bring a charge against war criminals from any country.
The main example for this court has been the Nuremberg tribunal where liberated Europe put the leaders of Hitler's regime on trial in 1946. Now the world will have a permanent international tribunal, and not everyone is pleased about it. Especially the American government is strongly against it and has refused it any cooperation.
In Netwerk we bring you one American who is enthusiastic, Professor Benjamin Ferencz, 82-years-old, and in 1946, one of the main prosecutors at Nuremberg. To this very day he is involved in international criminal law. Herman van Gelderen visited him this weekend in New York.
Aanstaande maandag gaat in Den Haag het Internationale Strafhof van start. Het heeft nog geen gebouw, maar het is er toch. En dus kan iedereen op de wereld vanaf aanstaande maandag een klacht indienen tegen oorlogsmisdadigers uit welk land dan ook. Het grote voorbeeld van dit strafhof is altijd het tribunaal van Nuremberg geweest waar het bevrijde Europa in 1946 de leiders van het Hitler regime heeft berecht. En nu kent de wereld dus [een] permanent international strafhof, en niet iedereen is er blij mee. Met name de amerikaanse regering is er heel fel op tegen en weigert dan ook elke medewerking.
In Netwerk brengen wij u één amerikaan die wel enthousiast is, Professor Benjamin Ferencz, 82 jaar oud, en in 1946 een van de hoofdaanklagers in
Nuremberg. Tot op de dag van vandaag is ie volop betrokken bij dat internationale strafrecht. Herman van Gelderen zocht hem op dit weekeinde in New York.
Reporter (Herman van Gelderen):
Suppose Bin Laden strikes again or Al Qaida strikes again, where should he stand trial? In America?
No, no. There's only one place to try him now. After July first the International Criminal Court in the Hague is the place to try him. America should never try him because whatever judgment would come out would be condemned by the Muslim community as being biased and unfair. They should be condemned as criminal acts and not glorified as martyrs or on their way to heaven. These are criminals who are abusing their religion in order to commit mass murder and it should be publicly condemned in every tribunal that way.
This is a photograph of me taken while I was in the American Army around 1943 when I was 23 years old. I fought in every campaign in Europe from the beaches in Normandy to the final Battle of the Bulge in the Ardennes, so that I have seen warfare at first hand. And even more so and much more dramatic than that, I had to enter the concentration camps as they were being liberated and collect evidence of the atrocities and the crimes.
It's really beyond description - the smell, the sound, the sight of people dying, people dead and lined up like cordwood in front of the crematoria, the crematoria still going. I had to build up a mental block so that, uh,... I'm sorry but there are flashbacks. My mind tried to shut off what my eyes saw. And there just was no time for breaking down. There was too much to do. And so I moved on from camp to camp.
Benjamin Ferencz from New Rochelle near New York, one of the prosecutors at the Nuremberg trials, is also a lawyer, a scientist and the intellectual father of the ICC which will be housed in The Hague from July first 2002. Despite all obstruction, especially from his own country, the 82-year-old Ferencz never gave up.
Benjamin Ferencz uit New Rochelle vlak bij New York,een van de hoofdaanklagers van het Nuremberg tribunaal, maar ook advocaat, wetenschapper en geestelijk vader van het Internationaal Strafhof voor Oorlogsmisdaden vanaf 1 juli in Den Haag. Ondanks alle tegenwerking met name vanuit eigen land heeft de 82-jarige Ferencz nooit opgegeven.
It's a newborn babe and you can't expect a newborn babe to grow and just flourish, you have to help it along. You have to nourish it. You have to feed it. And when it falls down you have pick it up. One day it will walk. One day it will run. One day it may even carry you. And so it's really a great step forward because it's the first step forward of that kind since Nuremberg. And it's high time that the world began to show greater respect for the rule of law rather than the rule of war.
April this year at the United Nations - more than 60 countries have ratified the statue for the ICC and brought it into realization. A landmark, also for Ferencz. For a long, long time his crusade was not taken seriously, despite his impressive credentials.
April dit jaar, de Verenigde Naties, meer dan 60 landen hebben het statuut van het strafhof ondertekend en daarmee is het een feit. Een mijlpaal, uiteraard ook voor Ferencz. Lang, heel lang is zijn pleidooi nauwelijks serieus genomen, ondanks een indrukwekkende staat van dienst.
Well, there were some people besides my wife who took me seriously, but the big powers were not ready to yield their power. And it was quite clear that this was a rock being pushed up a hill which would roll down the hill the moment you let go.
This is a picture of me as a war crimes investigator in a jeep of the Third Army and the slogan on the windshield, "Immer Allein", means "Always alone", which described how I went out on the investigations. The surest evidence I ever found was clear-cut reports of mass murder by special extermination squads, the SS-Einsatzgruppen, whose assignment it was to go in behind the German troops and kill without pity or remorse every Jew - man, woman and child - they could lay their hands on, as well as every Gipsy or every potential opponent of the Reich. And that's what they did. And then they reported to Berlin exactly which unit was in which town and had killed how many people under the command of which officer. That was a dream evidence for a prosecutor. Goering, throughout the trial, turned his back on the tribunal, laughed at the tribunal. These were men who ordinarily would never be recognized as mass murderers, who mostly had doctor's degrees; many of them were lawyers, I'm ashamed to say. They were all educated men and I had no sympathy whatsoever with their deeds. I didn't even want to talk to them. I wanted them only tried on the basis of their reports of what they did. There was no remorse whatsoever. I never heard a defendant say, "I'm sorry."
I have waited many years in vain for such a statement.
"Never again" genocide nor any other form of mass murder, that was the message attached to the judgment against the Nazi leaders. Now 55 years after Nuremberg and many millions of wartime victims further, an international court of the United Nations has been created to try war crimes. But the resistance is enormous. America, as the only remaining super power, is utterly against the possibility that American military personnel or politicians might have to appear before a non-American court.
Nooit meer genocide of andere vormen van massamoord, dat was naast het berechten van de nazi-leiders toen de boodschap. Nu 55 jaar na Nuremberg en vele miljoenen oorlogsdoden verder komt er een internationaal strafhof van de VN voor oorlogsmisdaden. Maar de weerstand is enorm. Amerika is als enig overgebleven supermacht mordicus tegen de mogelijkheid dat amerikaanse militairen of politici weleens voor een niet-amerikaanse rechtbank zouden kunnen verschijnen.
The real policy is, "What do we need the rest of the world for? Why should we bother? Don't get entangled in foreign affairs." At the moment a very conservative, militant right-wing has taken control of the government and is doing everything it can to sabotage the principles of Nuremberg - for which we stood and which inspired the world and elevated the position of the United States - to sabotage those principles and replace them with a rule of anarchy, because they've shown nothing but contempt for the rule of law.
I have not forgotten that it took the United States 40 years to ratify the Genocide Convention which we sponsored. But the world didn't wait for the United States. If the United States comes on board sooner, and I hope it will, and I expect that it will, so much the better. If they don't, the world will move ahead and the United States will remain behind and it will lose the leadership role which it has enjoyed for so many years.
In this photo I am introducing documents in the Einsatzgruppen trial against the defendants who murdered over a million people and two of the defense counsel have jumped to the podium to object or comment to some of the documents being introduced. "My" Einsatzgruppen, if I can call them "my" Einsatzgruppen, had 3000 men who for two years every day went out and slaughtered innocent civilians, including thousands and thousands of children. I tried only 22.
Why was that?
We couldn't try more. We had a limited mandate. This was a sampling. We wanted to establish the historical record and to establish a principle of law - that these were terrible crimes in order to deter people from committing such crimes in the future.
But if we look at the criteria of war crimes in the statute and, for instance, we take the bombing of Leipzig, Dresden and Nagasaki and Hiroshima, would those be considered as war crimes?
Probably not; and I say "probably" advisedly. Some of them, certainly not. If you're in the midst of a war where the adversary has declared, "total war", and no rules would apply, as Adolf Hitler did, then the principle of "reciprocity" would allow you to do the same. Whether the use of nuclear weapons, which kills generations still unborn, is a crime against humanity is a question which has not yet been resolved. And the presence of a court as the ICC is, will hopefully give us all a clearer picture of what's permissible and what's not permissible.
United Nations headquarters in New York, cradle of the international tribunal, with Europe diametrically opposed to the United States. Washington, historically distrustful of the UN, fears that the Court will be misused for anti-American politics. Ferencz judges this fear to be totally groundless. As Security Council member, the United States has maximum influence.
Het hoofdkwartier van de Verenigde Naties in New York, bakermat van het internationaal strafhof - met Europa lijnrecht tegenover Amerika. Washington, van oudsher argwanend tegenover de VN, vreest dat het hof misbruikt zal worden voor anti-amerikaanse politiek. Ferencz vindt die angst volledig ongegrond. Als lid van de Veiligheidsraad heeft Amerika maximale invloed.
The statute has given them the right to instruct the court at any time to halt the trial or investigation of any case for a twelve-month period and they can then renew it for an indefinite twelve-month period. So the power still remains in the hands of the Security Council to stop this tribunal in its tracks while they continue efforts to make peace by other means. And no one mentions that either.
That the ICC was created in spite of everything was a reaction to the horrific wars in the 1990's in the Balkans and the genocide in Rwanda. International pressure to not let the culprits go unpunished was the deciding factor. Two ad hoc tribunals were formed and led the way to the new court.
Dat het strafhof er desondanks komt vloeit voort uit de gruwelijke oorlogen in de jaren '90 op de Balkaan en de genocide in Ruanda. Internationale druk om de daders niet te laten lopen gaf de doorslag. Twee ad hoc tribunalen werden opgericht en vormde de aanloop naar het nieuwe strafhof.
The genocides that would take place and the crimes that would take place in other parts of the world made it impossible to continue to set up all these temporary tribunals à la carte, as we called it, wherever there was a tragedy, in Sierra Leone, in East Timor, wherever it was. And people began to think more seriously of the idea of a permanent international criminal court. Not retroactive, but to build a better world in the future. And that's what we're in the process of doing right now.
Suppose you weren't 82, but 27? Would you like to be a prosecutor for the ICC?
I think it would be fun, because it's a new field and it's challenging, and I have been pushing this rock for 60 years. But I'm 82 years old. There's a limit to how much longer I can do this. I hope some of your viewers will agree to take on this burden; some of the younger viewers.
A man to take your hat off to . . .
This was a report from Herman van Gelderen en Jolan Douwes.
This was Netwerk, June 25th, 2002.
Ferencz Reply to Wall Street Journal Editor
By Benjamin B. Ferencz
published: May 2002
source: Web Posting
Robert Bartley's misinformed and biased opposition to the International Criminal Court cries out for reply. I write as a former American soldier who fought in every campaign in Europe during World War Two, who saw the horrors of war and genocide first hand and who proudly represented the United States as a Chief prosecutor at the Nuremberg trials where we inspired the world with our vision of a universal rule of law binding on all nations.
Why is that the most distinguished legal scholars in America have urged the United States to support the court? That includes the conservative American Bar Association, ten former Presidents of the American Society of International Law, leading Harvard Law School Professors who summarized an objective study by the revered American Academy of Arts and Sciences that included conclusions of the Chief Judge of the US Court of Military Appeals, the published views of a renowned former State Department Legal Advisor and Pentagon Adviser, American Nuremberg Prosecutors, a thousand non-governmental organizations, the entire European Community and many of our oldest allies. Details and citations can readily be found on my website: www.benferencz.org.
Bartley seeks to frighten an uninformed public by the threat of an irresponsible prosecutor running amok accusing innocent Americans of atrocious crimes including "the crime of aggression." He ignores the fact that the court has no jurisdiction whatsoever to consider that crime unless there is an amendment to the Court's statute that can't even be considered for another seven years. He also ignores the fact that the UN Security Council is empowered to halt any investigation by the court for an indefinite period. A host of other safeguards also remain unmentioned. Why?
President Bush has just signed a treaty with Russia to reduce the nuclear threat. Does he know that under the new Bolton doctrine, that treaties are all signed in erasable ink, the next President can renounce the signature of predecessors and render all such signatures meaningless? The US Constitution never anticipated such an abasement of Presidential authority.
Let us hope that when the court starts functioning the US will overcome its current confusion and decide to join with the rest of the civilized world in upholding universal principles of law and humanity.
Ferencz Call to Action for an International Criminal Court
By Benjamin B. Ferencz
published: March 2002
source: Web Post
A new institution to curb crimes against humanity is about to be born. An international criminal court to bring to justice those who plan or perpetrate massive atrocities against civilians will be celebrated at the United Nations on Thursday, April 11, 2002, as ratification by over 60 nations brings the new court into existence. It is a historic milestone.
Unfortunately, despite American leadership in establishing the International Military Tribunal and related criminal courts at Nuremberg and elsewhere, and our espousal of equal justice under law, the United States stands on the sidelines, insisting that under no circumstances will it accept a foreign tribunal with authority to try any U.S. nationals.
U.S. intransigence disappoints many allies, including the entire European Community, Canada and Great Britain, and flies in the face of recommendations by some of America's most respected legal experts. Veiled threats that the U.S. will somehow erase its signature from the treaty for the Court evokes ridicule, as does the determined effort by conservative congressmen to derail the court by imposing U.S. sanctions against nations that support the new court. Such unparalleled and bellicose manifestations of unilateralism betray our ideals and undermine our prestige in the world.
The Rome Treaty, on which the Court’s statute is based, can only be ratified after two-thirds of U.S. Senators give their consent. Americans will have ample time to debate the merits of the new court, and to see how it works. Remaining aloof and sulking, or trying to sabotage the court, can only be counterproductive and demean our stature as a world leader supporting the rule of law.
Let all join in celebrating the historic step forward in the slow march toward civilization so that the true voice of America is heard loud and clear.
Good luck and best wishes to all.
Benjamin B. Ferencz, a former Nuremberg war crimes prosecutor. J.D. Harvard, 1943
Final Chapter: International Law As We Enter the 21st Century
By Benjamin B. Ferencz
published: January 2002
source: International Law As We Enter the 21st Century. Edited by the European Law Students Association, Berlin Verlag.
PEACE AND JUSTICE AS WE ENTER A NEW MILLENNIUM
A thousand years have passed and a world of peace and justice for all remains an ancient aspiration yet to be fulfilled. A more humane world needs new thinking, new directions and new institutions. Nations resist yielding privilege or power and individuals cling to entrenched dogmas. Progress takes time and even imperfect compromise always has a price; there can be no instant evolution and no painless revolution. There are countless hurdles to be overcome; here we can highlight only a few. By challenging what seems unchallengeable and changing what now seems unchangeable, a more compassionate world is surely attainable. We have it in our power to make what seemed impossible in the past inevitable in the future.
Sovereignty and Self-Determination
One of the arguments frequently heard to justify rejection of new international controls is: "It will detract from our national sovereignty." Of course, there is nothing wrong with patriotism or pride in one's country and a desire to be independent. A closer examination will reveal, however, that parochial nationalistic arguments are not constructive. Rejecting needed changes as an unacceptable intrusion on sovereignty ignores the needs and realities of contemporary life.
The medieval notion that by Divine right the Sovereign is above the law was demolished by Magna Charta in 1215. The American Declaration of Independence in 1776 proclaimed that "governments derive their powers from the consent of the governed." Germany's great philosopher Immanuel Kant argued that the sovereign had to be subordinate to laws that would guarantee freedom for everyone. The Universal Declaration of Human Rights affirmed the will of the people as the basis for governmental authority. Nuremberg war crimes trials established that even a Head of State would be criminally liable for crimes against humanity. Modern Germany and Japan enacted constitutions yielding vital sovereign rights of defense to the international community. As the world grew increasingly linked by expanded transportation, trade and communication, national autonomy proved inefficient. Giant corporations became global and nations formed regional communities to augment the sovereign state as the unit of governance. Thousands of treaties were signed restricting sovereignty in order to enhance the welfare of citizens in many lands.
A leading Catholic theologian, J. Bryan Hehir, now Dean of the Harvard Divinity School, recently concluded that the nation state, unable to protect its own citizens and to respond adequately to economic, environmental or political challenges, was no longer a viable political entity. Professor Louis Henkin of Columbia Law School, when President of the American Society of International Law, wrote that it was "time to bring sovereignty down to earth." Professor Michael Reisman of Yale described the notion of sovereignty in the traditional sense as an “anachronism”. Absolute state sovereignty today would produce absolute world chaos. As we enter the new millennium it should be recognized that accepting certain restraints on national power may be necessary if governments are to serve the true sovereign - the people themselves.
Another concept that needs reevaluation relates to attachment to the land itself. Seizure of territories by conquest has been condemned in many legal declarations that say the fruits of conquest will never be recognized. But such declarations, of principle are more honored in the breach than in the observance. The map of the planet would be unrecognizable if national boundaries had to be reconstructed along biblical borders. One must consider whether the use of force to reclaim territories is likely to benefit or injure the inhabitants. If peace and justice are to prevail, peaceful and lawful means must be found to satisfy legitimate grievances without causing more harm than good.
Closely related to assertions of national sovereignty and love of the land is the demand for self-determination. Almost all countries have many religious, cultural, political or ethnic minorities who feel that they are discriminated against. The reshuffling of national borders for the economic or political advantage of imperialist powers is certainly to be condemned and the United Nations program to obtain independence for colonial peoples has been singularly successful. Granting self-determination as a means of establishing peace among rival groups often proved counter-effective. The price of violent reconstruction of ancient homelands was paid, and continues to be paid, by countless innocent victims dispossessed or massacred in many parts of the world. There is nothing clean about what is today euphemistically termed "ethnic cleansing." Driving people out of their homes under threat of genocidal slaughter simply because they do not share the race, religion or political persuasion of their tormentors is a crime against humanity that must be stopped.
Many ethnic and other minority groups who feel—rightly or wrongly—that they are disadvantaged or threatened, assert a right to self-determination as "enshrined" in the UN Charter. They are entitled to make their argument in every suitable forum and to seek support for their justified claims to be free of persecution and abuse. But the demand for self-determination or nationhood cannot be accepted where it is a subterfuge for racial or religious discrimination or a ploy for political power. To be consistent with the Charter, the remedy must be sought by legal methods. If, in desperation, frustrated groups claim the right to use brutal means, and to receive any assistance from any source, to attain the desired objective, there can be neither peace nor justice. Nations all over the world would remain in constant agitation by acts the perpetrators hail as heroism but the victims condemn as terrorism. The legitimacy of the objective is undercut by the illegitimacy of inhuman means used to attain it. Solutions that only harm those we seek to help do not solve anything.
People long for independence and self-fulfillment but ancient hatreds are not worth preserving. New thinking requires tolerance and flexibility that allows diverse cultures and religions to flourish together in integrated harmony and peaceful coexistence that respects cherished sentiments and disparate traditions within a framework of relative autonomy. Changes in entrenched attitudes cannot be quickly or easily achieved and practical solutions will require detailed and difficult negotiations. To extremists, no solution other than their own may be acceptable. The useless loss of many innocent lives is a frequent consequence of fervent obduracy. All we can do to ameliorate senseless suffering is try, as best we can, to apply the rule of reason and the rule of law as laid down in the UN Charter which repeatedly makes plain that only peaceful means are lawful. In the last analysis the heart of self-determination is respect for the human heart. Human beings must be human.
An outgrowth of the concept of sovereignty is the corollary that nations may not interfere in the internal affairs of other countries; independent states should be free to foster the well-being of their citizens as they see fit This was the prevailing doctrine for centuries, despite vague diplomatic references to "dictates of the public conscience" and "the laws of humanity." But what happens today when governments mistreat their own people for racial, political, economic or other sordid reasons? United Nations prohibitions against interference in domestic affairs were never intended as a license for nations to abuse or murder anyone. The Charter calls for human rights and fundamental freedoms for all. There is no law that says the world must tolerate the intolerable.
The emergence of new states was frequently accompanied by the eruption of factional fighting. It became apparent that what happened within a state could be just as perilous to world tranquility as what happened between sovereign nations. Violent internal conflicts among groups fighting for power could spill over into neighboring lands and threaten world peace. But the UN lacked independent military forces capable of preventing or containing such conflagrations. A rigid view of non-interference would be morally untenable and could imperil peace rather than preserve it. Self-appointed interveners noted the danger of "falling dominos" to justify military intervention as self-defense. The Nuremberg Principles in outlawing genocide and crimes against humanity held that the international community had the legal right, and the implied duty, to halt extreme human rights violations. Tyrants were on notice that they could be held personally accountable in a court of law. State's rights had to be subordinated to human rights. Peace-loving nations faced a serious dilemma.
The UN Charter prescribes that using armed force, other than in self-defense against an armed attack, is only lawful if approved by the Security Council acting to maintain peace. Experience showed that Council decisions are influenced by political considerations and the veto power of the privileged five founding members may be used to paralyze intervention. As long as there is no lawful international mechanism capable of protecting victims of atrocities, it is inevitable that some states will choose to by-pass the Council and claim a moral high-ground by trying to rescue the oppressed - even without clear legal authority. On the other hand, powerful states may use the pretext of humanitarian intervention selectively to further their own economic or political interests. Aggression may not be disguised as humanitarianism. To allow nations, unilaterally or with military allies, to decide on their own when and how force may be used against a presumed lawbreaker would undermine the United Nations and Charter law. Human rights must prevail over human wrongs and international law must also prevail over international crimes. No individual and no nation should be allowed to take the law into its own hands.
The crucial question: "If the Security Council declines to act, and may not be by-passed, what other peace-enforcement process takes its place - or must innocent victims be allowed to perish?" International law regarding the permissible limits of unilateral intervention is still evolving. Clearer guidelines are needed. It should not be too difficult to reach agreement on what is permissible and impermissible. A nation that tries unsuccessfully to arouse the world community and the Security Council to intervene to stop outrageous atrocities and, as a last resort, sends in its own troops temporarily with the sole purpose of halting the crimes, may be acting morally even though it lacks clear legal authorization. Morality and law should be made consistent. It is a very dangerous precedent to allow any nation to appoint itself the policeman of the world. As we enter the new millennium, the criteria to be applied in determining whether military intervention is noble or criminal must be laid down in advance if global peace and justice are to be preserved.
The Evolution of International Criminal Law
Human history has been a chronicle of countless wars depicted as heroic and glorious. Opponents of war have been castigated as naive, cowardly or traitorous. Ecclesiastical admonitions about "just wars" and "proportionality" sought to regulate how wars should be fought. As man's killing capacity and the cost thereof increased, multi-national conferences like those in the Hague in 1899 and 1907 tried to define and set limits to what was permissible in combat. War was awful but it was lawful. It was only after at least ten million people were senselessly slain in World War I, that more serious thought was given to using law to curb man's homicidal tendency to kill or be killed for his country.
League of Nations efforts to deter wars by holding the German Kaiser criminally responsible for Germany's aggression came to naught. A Head of State had never before been tried for that crime so only a warning was issued that things might be different in future. The League's Covenant confirmed that war was permissible if due notice was given before killings began. If the rule was violated, hostilities would be forced to a halt by comprehensive sanctions against the aggressor. How the aggressor would be identified was not made clear and before the "economic weapon" could be fired all nations would have to agree This meant that every member had a veto power. It should have been expected that the plan wouldn't work. And it didn't. Powerful states, for their own political reasons, were unwilling to risk war to save the skins of other members. Failing to implement their own plan for collective security, nations faced collective insecurity followed by the Second World War and another 40 million innocent people slaughtered.
The United Nations Charter sought to eliminate shortcomings of the League's Covenant. In the name of "WE, THE PEOPLES," determined "to save succeeding generations from the scourge of war," (the word "war" appears nowhere else) all Members are required to refrain from the "threat or use of force" - inconsistent with Charter purposes. Many of the purposes are contradictory. Only the Security Council can determine the existence of aggression and authorize measures to repel it. Self-defense against an armed attack is permissible but "aggression" and "self-defense" were not defined. The Military Staff Committee that was supposed to organize an international military force was straddled with conditions that would allow it to remain moribund. The Council is dominated by five "Permanent Members," any one of which can veto any enforcement action. It might have been anticipated that unless the five founders were in complete accord, the UN would be paralyzed and future wars of aggression would be cloaked as "self-defense." Given its "Mission Impossible," it is remarkable that the UN was able to accomplish as much as it did. The needed controls did not go far enough and the world was to pay dearly for the timidity of its leaders.
The greatest step forward in promoting the law of peace took place in Nuremberg after World War II. The International Military Tribunal (IMT) Charter listed only three categories of crimes that would come within the Court's jurisdiction. The first was "Crimes Against Peace : namely, planning, preparation, initiation or waging of a war of aggression..." After detailed study, the Court's judgment concluded that aggression was not merely a crime under prevailing law but was in fact "the supreme international crime." IMT precedents became the basis for a dozen subsequent war crimes trials in Nuremberg as well as prosecutions in Japan and elsewhere. History has confirmed that the Nuremberg trials were fair and based on existing law. It was a cardinal principle, repeatedly articulated by American Prosecutors in particular, that the law enunciated at Nuremberg was to apply equally to everyone. War was to be made less attractive to those who held the destiny of peoples in their power. The law had taken a step forward that was long overdue. Nuremberg's greatest achievement was to confirm that war-making was not a national right but an international crime.
The Nuremberg Principles were affirmed by the UN in 1946 and UN Committees began to draft a code based on those principles and to prepare for an international criminal court to try violators. Ideological rivals were so busy committing aggression that they had little inclination to define or curb the crime. Requiring complete concurrence by all parties is surely a worthwhile aspiration but it gives every participant a veto. The" tyranny of a minority" may compel acceptance of terminology so exquisitely ambiguous as to allow nations to interpret it to their own advantage. That's exactly what happened in 1974 when a rather vague definition was finally reached by consensus. In effect, it left the final decision up to the Security Council that had been vested with that responsibility by the UN Charter. But neither the Council nor the old International Court of Justice (with jurisdiction only over consenting states) had any authority to try individuals in a criminal proceeding. There was thus a gap in the existing international law; without a new criminal court individual perpetrators responsible for "the supreme crime" could get away with murder.
While UN committees resumed plodding deliberations aimed at creating the needed tribunal, intervening events proved that rapid progress toward that goal was possible - once the political will was aroused. In the wake of the dissolution of former Yugoslavia, starting around 1991, massive crimes against humanity were perpetrated by rival nationalistic ad ethnic groups. The Security Council - in a matter of weeks - created the ad hoc International Criminal Tribunal for Yugoslavia. A similar ad hoc court was created quickly to deal with genocide that erupted in Rwanda in 1994. Nations, after suffering humiliating military defeats trying to suppress such crimes, were no longer willing to risk their own troops by intervening to prevent atrocities. But indignant outcries from around the world, prompted by graphic television reports of mass rapes and genocide, produced the speedy Security Council response. Nations turned to law instead of war. Despite normal start-up problems, and the deplorable failure of some states to assist in the arrest of indicted suspects, these new tribunals are busy setting valuable precedents for the further development of international criminal law.
In 1996, the International Law Commission, composed of 34 "independent experts," completed work on the draft Code of Crimes that had first been ordered by the UN in 1946. It described aggression as a "customary law crime" that created a "peremptory norm" - irrevocably binding on all states. The experts felt that Nuremberg's sketchy definition should not be repudiated and it could be left to later practice to set more precise contours to the crime. When a new UN Preparatory Committee took over the project of creating a new international tribunal, not all states were ready to accept a criminal statute that seemed imprecise - particularly if they had not participated in the earlier deliberations. Many, resenting the privileged position of the Permanent Members, insisted that any new criminal court had to be completely independent of the Security Council. Others did not seem to realize that no criminal statute could discard accepted international legal norms or disregard universally binding UN Charter provisions. Despite generally supportive speeches, there remained a lingering doubt whether powerful nations were really ready to relinquish their right to kill their neighbors.
A Permanent International Criminal Court
After years of preparatory work, Plenipotentiaries assembled in Rome to seek agreement on the long-awaited criminal tribunal. The number of differences remained enormous. Some major international crimes such as terrorism and narcotics trafficking had to be set aside for possible later consideration. Following five hectic weeks, on 17 July 1998, nations voted overwhelmingly ( 120 to 7 with 21 abstentions) to adopt the "Rome Statute" declaring in its opening paragraph that an International Criminal Court (ICC) "is hereby established." Chairman Philippe Kirsch of Canada spoke of "humankind's finest hour". UN Secretary-General Annan hailed it as "a gift of hope to future generations". It was indeed a historic occasion. In the euphoria of the moment, it was hardly noticed that the ICC could not become operational until many other conditions were met.
A treaty incorporating the Rome statute could only go into effect after 60 nations had formally ratified it without reservations. Before ratifying, some nations would have to enact new laws or modify their Constitutions. Agreements had still to be reached on many operational "details" such as rules of procedure and how the ICC was to be financed. Amendments could only be considered 7 years after the ICC began functioning. When all that could be accomplished was still uncertain. Optimists estimated that it would take a few year before the ICC could hear its first case. In the meanwhile, since the Statute was not retroactive, presumably national leaders could remain immune from prosecution and massive international crimes could continue to be committed with impunity.
It was inevitable that, once the dust had settled, not everyone would be completely satisfied with the final outcome. In the last frantic hours at Rome, the harried delegates were able to agree that aggression should be included as a crime within the limited "core jurisdiction" of the Court, but before the ICC could act on that crime, certain other conditions had to be met. Seven years after the Court becomes operational, there would have to be an amendment conference, where the parties to the treaty, by near-unanimous agreement, defined aggression and the role of the Security Council, consistent with the UN Charter. When, and if, all these conditions could be met and aggression punished by the ICC was rather unpredictable. Although international lawyers are surely capable of defining aggression adequately, "the supreme international crime" and the root from which the worst human rights violations invariably grow, was left in limbo.
Another major disappointment was the inability of the United States to vote for the Rome Statute. After all, it was the United States that had inspired the world with its leadership at Nuremberg and it was President Clinton who pledged to uphold the Nuremberg precedents and who appeared before the General Assembly in 1997 to call for an ICC before the end of the century. The U.S. had played a key role in creating the ad hoc tribunals for Yugoslavia and Rwanda. The reasons for balking in Rome, set forth in speeches by the able American Ambassador David Scheffer, were not generally considered persuasive by most other nations, including some of America's closest allies. Many distinguished American Professors of Law, such as Cherif Bassiouni, Bartram Brown, Roger Clark, Diane Orentlicher, Michael Scharf, Ruth Wedgewood and many others, criticized the U.S. position. Former State Department employee John Bolton was a principal spokesman for the conservative right-wing that viewed an international court as anathema.
The main sticking point was U.S. reluctance to support a treaty that might allow American troops on a humanitarian mission to be maliciously accused of war crimes even though the United States had not ratified the treaty. An unseen stumbling block was more political than legal. Senator Jesse Helms of North Carolina, Chairman of the powerful Senate Foreign Relations Committee ( that has to consent to ratification of any treaty) made it unmistakably clear that he did not want the treaty repaired - he wanted it killed! The Defense Department has also failed to see any advantage in creating a new international court that might indict American servicemen and women, or their leaders, for alleged crimes. Some Pentagon representatives did not seem persuaded that the innocent need never fear the rule of law.
Certainly, there were defects in the Rome prototype so frantically assembled, but with a little creative lawyering and an added layer of political will many of the shortcomings could surely be fixed. Ambassador Scheffer continued to play a constructive role in the negotiations on procedural problems and he reiterated America's interest in being able to join the overwhelming majority. The treaty, and the implementing regulations still being negotiated, contain many safeguards accepted to allay America's concerns. Every nation was given priority to try its own citizens accused of crimes. The ICC could only get jurisdiction if the state of the suspect's nationality was unable or unwilling to provide a fair trial. The Prosecutor must be of highest calibre and subject to a variety of judicial controls. Additional budgetary and administrative provisions guarantee that the Court can not run amok. This is not the place for detailed rebuttal to American hesitations but a procedural suggestion may be helpful in providing time to iron out these differences.
The American Constitution vests the President with authority to negotiate and sign treaties. Ratification, to make the treaty binding, requires consent by two-thirds of the Senate. But there is no requirement that the President must submit even a signed treaty for Senate consideration; Presidents often wait until the political climate seems receptive. Signing a treaty simply incurs an obligation not to sabotage it. The preemptive media strike by Senator Helm's announcing in the midst of the negotiations that the Rome treaty would be "dead on arrival" was an intrusion into the President's constitutional prerogatives. Pentagon pressures on other nations also undercut the President's constitutional authority as Commander-in-Chief. Diversity of sincerely-held opinion is inevitable in every great democracy and the Helms-Pentagon opposition, even if bordering on constitutional illegality, reflects strong feelings of conservatives who are not prepared to accept new thinking. But it should not remain unanswered by an administration that supports the rule of law.
It would seem to be in America's interest, both domestically and internationally, if the President would re-assert his constitutional authority by signing the treaty for an ICC. He can, at that time, express all of the concerns of those who oppose the treaty. The public can then debate the merits of the points in dispute and, through the elective and democratic process, make its views known before the issue is submitted to the Senate for its advice and consent. There will be ample time for detailed study of all of the objections. Signing the statute would be more than a symbol. It would block the dangerous erosion of presidential powers, would validate promises made to the American public and the world community and would reinforce America's credibility as a democratic world leader.
The Path to Peace and Justice
When the last millennium began, those who preached peace were crucified.
Wars were considered honorable and glorious. Mass rapes, pillage and taking captives as slaves were traditional prizes of conquest. The Inquisition burned savants at the stake for daring to speak the truth that questioned Church dogmas. Many great empires once considered invincible have since disappeared. What was blindly accepted as unalterable truth or inevitable was altered when people learned to think for themselves and had the courage, and the patriotism, to speak out. It was only during the past few hundred years that the concept of international law was born and the radical idea evolved that every human being was entitled to human rights. The abolition of slavery, freedom from want and fear, and the emancipation of women, are among many human entitlements that have only been asserted during recent memory. Although there is still a great gap between proclamation and practice, many attributes of peace and justice that were unthinkable not too long ago are now taken for granted. So it shall be during the next millennium.
The most fundamental of human rights - to live in peace with justice and dignity - is a very elusive goal. Peace is obviously better than war, yet the defense of war as a necessary institution remains firmly entrenched and even glorified in rigid minds that refuse to believe that a viable alternative is possible. It is an ironic paradox that peace depends on justice, yet there can be no justice without peace. Revolting conditions will always incite revolt. General Dwight D. Eisenhower's farewell address as US President warned of the malignant power of the "military-industrial complex". That great soldier confirmed that every dollar spent on arms is theft from the poor. How many needed schools and hospitals could have been built, how many saved from hunger or despair with the money spent on weapons that could never be used because they were ecocidal, genocidal and suicidal? Yet, no nation can be expected to surrender its arms until there is an effective alternative security system in place. Surely, the human mind that was capable of inventing the miraculous things we see around us every day, should be able to manage the planet without destroying it.
No one should denigrate the heroic sacrifices of brave young people who perished in the service of their country while loyally following their leaders. Despite existing prohibitions against the use of armed force, perhaps a hundred million innocent men, women and children have been killed in a hundred wars throughout the world since the UN Charter was adopted. In the next millennium it will become clearer to all that the only real victor in war is Death. Decision-makers and "realists," who have relied on traditional concepts of power and military might have left a bitter legacy. We must be ready to take a chance for peace.
To be sure, a more humane world still requires many changes that cannot be quickly or easily attained. International laws must be clearer, courts must have binding jurisdiction to settle international disputes and authority to punish those who commit aggression, crimes against humanity or similar atrocities. An improved United Nations is also needed, with a more objective and democratic Security Council, able to control armaments, impose economic sanctions and apply international military force when all else fails. Improvements do not require complicated Charter amendments that may be difficult to attain but only correct interpretations by nations that are willing to honor their existing obligations without equivocation. Social injustices that give rise to violent discontent must be diminished. Environmental and population concerns must be addressed. Everything is linked and progress must be made on all fronts before greater tranquility can be expected. It is a fundamental requirement for peace in the next millennium that the prevailing "war ethic" be replaced by a new "peace ethic" and that lawlessness be replaced by the rule of law.
We all inhabit one very small planet in a vast cosmos and all life is sustained by a fragile crust that must be tended with loving care if planet earth is to survive. New networks of instantaneous global communications have perforated all national boundaries. Young people in particular will be willing to surrender their hatreds rather than their lives as they are educated for a more humane future built on universal human solidarity. Of course, all of the modern techniques of persuasion will be needed to replace the stabbing and grabbing of the last millennium by a new ethic of caring and sharing. The schools, religious institutions of all denominations, non-governmental civic organizations and all who care about their children must share the responsibility to bring about needed changes. National defense budgets should include major allocations to study, retrain and teach human beings everywhere how to live in harmony. A new morality of universal equality and justice must be disseminated over global networks as the foundation for future peace.
The astounding new sources of information, seized by the youth of all nations, offer opportunities still beyond our imagination. We must develop a new awareness of where real human security lies. The effort to bring about needed social change is in everyone's interest. No nation and no people can be secure until all are secure. Sustainable security does not depend upon a nation's capacity to kill people but upon its ability and willingness to help people. History has demonstrated that - despite failures and shortcomings - progress toward a more rational and humane world is being made. Future peace is too important to be entrusted to those who despair because they are blind to progress and have become disillusioned or cynical. Hope can not be extinguished. The time has come to look to young "dreamers" for a happier future. From continuing determination and courageous imagination of innovative young people of kind heart and noble mind a path will be found to peace and justice in the next millennium.
Benjamin B. Ferencz
The author, Harvard Law School JD 1943, served in the American army during World War II. He was Chief Prosecutor for the United States in the Nuremberg War Crimes trial against Nazi extermination squads that murdered over a million people. He set up and directed post-war restitution programs to compensate survivors of persecution, practiced law in New York, was an Adjunct Professor at Pace Law School, and is the author of many books and articles and a frequent lecturer on world peace.
Available from the European Law Students' Association (ELSA), e-mail email@example.com
Trials for Enemies Re: Wedgwood Op-Ed
Published: January 2002
source: Web Posting
Letter to the Editor, The New York Times, January 6, 2002
To the Editor:
Professor Ruth Wedgwood's understandable revulsion against terrorist attacks concludes that Al Qaeda members should not receive the extraordinary protections that we provide in domestic trials. (Op-Ed Dec. 21, 2001) Our long-range interests might better be served by other alternatives that expand rather than curb the rule of law.
After World War II, Britain proposed that Nazi leaders be summarily executed. The United States rejected that idea as repugnant to American ideals. Instead, an International Military Tribunal was established at Nuremberg to try 22 leading suspects in open court authorized to punish aggression, crimes against humanity and major war crimes. A handful of Japanese offenders faced a similar trial. Courts set up by victorious powers in their occupied zones tried another tier of a few hundred German suspects. "Small fry" were left to be "denazified" by the Germans themselves. The varied approach proved effective. American insistence that Nuremberg principles, approved by the United Nations, applied equally to everyone ushered in an era of greater respect for human rights of people everywhere.
Bin Laden and cohorts should be brought to justice before a new international criminal court that could be quickly established by the United Nations Security Council, as was done for atrocities in Yugoslavia and Rwanda. The charges should include "Crimes Against Humanity": the deliberate mass murder of large numbers of innocent civilians. No national secrets need be revealed to prove those allegations. There are ample international precedents. The pending permanent international criminal court now being established, despite misguided opposition from some of our conservative congressmen, offers a good model that has been accepted by most nations including our staunchest allies.
Our goal in the long run is to prevent the recurrence of terroristic acts. America cannot possibly conduct thousands of military trials against offenders from many nations. Other countries should participate. The verdict of an impartial international tribunal condemning planners and leading perpetrators is more likely to be an acceptable deterrent than secret American military proceedings. We make no friends abroad by insisting that more-fair trials are "reserved for Americans only."
Benjamin B. Ferencz
The writer was a prosecutor at the Nuremberg war crimes trials
Benjamin Ferencz Response to Roth Comments on Kissinger
By Benjamin B. Ferencz
published: October 2001
source: Foreign Affairs
To the Editor:
Foreign Affairs should be congratulated for Kenneth Roth’s persuasive response to Henry Kissinger’s essay “The Pitfalls of Universal Jurisdiction” (July/August 2001).
Former Secretary of State Kissinger articulates legal views that are misguided and contrary to conclusions reached by the American Bar Association, former Presidents of the American Society of International Law and a host of leading international legal scholars. America’s rejecting the new international criminal court now in formation repudiates the precedents set at Nuremberg, where we held forth the implied promise that never again would aggressive war, genocide, major war crimes and crimes against humanity be allowed to go unpunished. Seeking to exempt our nationals from laws we preach for the rest of the world offends our allies and demeans our status as a world leader.
Dr. Kissinger is right in calling for a public debate on this issue. The debate should be based on truth rather than distortion. You have rendered a public service by noting some of the prevailing misperceptions. With all due respect to Machiavelli, Bismarck and Kissinger, the public may decide that politics as usual is no longer an acceptable substitute for the rule of law.
BENJAMIN B. FERENCZ
A Nuremberg Prosecutor's Response to Henry Kissinger
By Benjamin B. Ferencz
published: September 2001
source: Brown Journal of World Affairs
Draft, July 2, 2001
Henry Kissinger's essay on "The Pitfalls of Universal Jurisdiction" (Foreign Affairs July/August 2001) perceives danger in allowing international legal norms to interfere with political actions by national governments. The former U.S. Secretary of State in the administration of President Richard Nixon warns that current efforts to deter genocide and other crimes against humanity by creating an international criminal court (ICC) run the risk of becoming a "tyranny of judges" or a "dictatorship of the virtuous." He refers to "inquisitions and even witch-hunts." Kissinger’s focus on the past exaggerates the dangers of the present and ignores the needs of the future. If we are to have a more peaceful and humane world, international law must play a greater and not a lesser role.
Dr. Kissinger challenges the basic concept of universal jurisdiction. He argues, incorrectly, that the notion is of recent vintage. He gives scant weight to ancient doctrines designed to curb piracy or to a plethora of international conventions following the First World War. He fails to recognize that international law is found not only in treaties but also in general principles of justice and in customs which gradually obtain universal recognition. International law is not static but advances to meet the needs of a changing world.
Over half a century ago, Robert M. Jackson, on leave from the U.S. Supreme Court to become Chief U.S. Prosecutor before the International Military Tribunal at Nuremberg, declared: "To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice." The learned judges reviewed the law on which the trials were based and concluded that it was "not an arbitrary exercise of power on the part of victorious nations" but "the expression of international law existing at the time of its creation..." The Nuremberg principles were affirmed by the United Nations in 1946 and became binding legal precedents for war crimes trials in Tokyo and elsewhere. Justice Jackson and Telford Taylor, his successor for a dozen subsequent trials at Nuremberg, repeatedly made plain that the law being mobilized to maintain peace in the future would apply to all nations equally.
The United States inspired the world when it proclaimed at Nuremberg and elsewhere that aggression, genocide and other crimes against humanity were universally prohibited by international law. It was recognized that states can act only through individuals and thus those leaders responsible for the crimes could be held to account in a court of law. Crimes like aggression, genocide and similar large-scale atrocities are almost invariably committed by or with the connivance of a national government and it thus becomes imperative to have available an international tribunal that could bring them
For over half a century, United Nations committees struggled in vain to reach consensus on a code of international crimes that would be punished in an international court. Cold war politics stymied all U.N. efforts to create an international criminal jurisdiction. Powerful nations remained unwilling to yield their sovereign rights to kill as they alone saw fit. After years of meticulous argumentation at the U.N., a breakthrough finally came in Rome in 1998 where 120 nations voted in favor of an ICC to curb the incessant murders and persecution of millions of innocent people. The U.S. was one of 7 nations that voted No. Mr. Kisssinger now argues that because of "the intimidating passion of its advocates", the judicial procedures designed to punish and deter new crimes against humanity are being "spread with extraordinary speed and has not been subjected to systematic debate". It is not the passion of its advocates that is moving nations toward the rule of law - it is the passion of those who have been victims of politics as usual.
The tribunals set up by the Security Council of the United Nations in the 1990's, with strong U.S. support, to punish massive war crimes committed in former Yugoslavia and Rwanda, are belittled by Dr. Kissinger's argument that "It was never thought that they would subject past and future leaders of one nation to prosecution by the national magistrates of another state where the violations had not occurred". None of these arguments are convincing. Kissinger scorns the judgment of Great Britain's esteemed Law Lords who confirmed the legal validity of the detention in England of Chile's former Head of State, Augusto Pinochet, who was accused of crimes committed against Spanish nationals in Chile. He ignores, for example, the widely hailed prosecution of Adolf Eichman by Israel, for Holocaust crimes committed in Europe at a time when the state of Israel didn't even exist. He fails to recognize that these advances in international jurisprudence also reflect the changing needs of contemporary world society.
In 1776, the Declaration of Independence declared that "governments derive their just powers from the consent of the governed." The United Nations Charter speaks in the name of "We the Peoples...” The Universal Declaration of Human Rights, adopted in 1948 refers to 'the equal and unalienable rights of all members of the human family..." and declares that it is essential "that human rights should be protected by the rule of law." These and many other international human rights instruments reflect the growing realization that true sovereignty lies in the people and not the state. Today, no nation and no person can be above the law. No one should oppose the creation of new institutions being created to help realize the dreams of suffering humanity.
Professor Kissinger is quite right to insist on due process protection and fair trials for every accused but his assumption that the ICC will flout these rights is completely unfounded. Quite the contrary, the best way to be sure that law will not be abused as a weapon to settle political disputes is to create a competent international court composed of highly qualified judges from many nations bound by rules that guarantee a fair trial under internationally approved standards and scrutiny. As of July 1, 2001, 36 states, including some of our staunchest allies, have completed the ratification process thereby confirming their unconditional acceptance of the Court. U.S. insistence upon complete immunity for all U.S. nationals is viewed by many of our friends as a repudiation of vaunted U.S. ideals and an unacceptable affront to the rule of law that must apply equally to everyone.
The ICC seeks to usher in a new regime of increased respect for international law. The court will have no jurisdiction over crimes committed before the court comes into existence. There is no retroactivity. Only crimes of concern to the international community as a whole, such as genocide, crimes against humanity and major war crimes, can be tried. The supreme international crime - aggressive war - can only be considered later - if there is a near-unanimous amendment Furthermore, it must not be forgotten that national courts are given priority and the ICC will have jurisdiction only where the national courts are unable or unwilling to provide the accused with a fair trial. The Security Council can block prosecutions indefinitely if needed for reconciliation or peace.
Administrative and budgetary controls are clearly defined. Without its own police force, the court must depend upon the Security Council to enforce its decisions. Enforcement can be vetoed by any of the five privileged Permanent Members, including the U.S. Kissinger's reference to the "unlimited discretion" of the prosecutor is unfounded. Many safeguards are written into the statute. A court that acts arbitrarily or seeks to abuse its limited powers will soon cease to exist.
Kissinger argues that the International Criminal Tribunal for Yugoslavia (ICTY), created at U.S. behest in 1993, had the effrontery to receive a "complaint" alleging that punishable crimes against humanity had been committed during the NATO air campaign in Kosovo in 1999. He should have stressed that in this instance the ICTY Prosecutor properly dismissed the complaint and refused to issue an indictment. The statute that governs the ICTY was approved by the United States and the United Nations for the purpose of bringing to justice those leaders responsible for crimes against humanity committed since 1991 in that particular region. It made no exceptions for U.S. nationals or others. The burden is always on the prosecutor to prove beyond doubt that the law has been violated. It must be shown that the accused knew or should have known that the deeds were criminal and that the defendant had the obligation and ability to prevent the crimes from happening. Despite initial difficulties and occasional shortcomings the ICTY has earned respect for its very fair treatment of the accused and its development of international criminal law. It is a new-born babe that must be helped and encouraged and not disparaged.
The innocent need not fear the rule of law. Kissinger's misperceptions about current international law lead him to the erroneous conclusion that if the U.S. dos not ratify the ICC treaty Americans will be outside its reach and hence protected from malicious accusations. He fails to notice that without the protective shield of binding international law and institutions to enforce it, the military captive is completely at the mercy of his captors. In every democratic society it is unavoidable that some unjustified complaints may be lodged for political or other nefarious purposes. It is also inevitable that some judgments may go awry and some judges may be incompetent or worse. That is no reason to abolish courts or to refuse to accept new courts where needed. Outstanding American international legal experts, including ten former Presidents of the American Society of International Law and the American Bar Association have, after careful study, concluded that it would be in the best interests of the United States and its military personnel for the United States to accept the proposed ICC as quickly as possible. The same conclusion was reached in 2000 by outstanding professors of the Harvard law School after a careful study by leading military and legal experts assembled by the venerated American Academy of Arts and Sciences.
A politically conservative constituency in the United States argues for the protection of American sovereignty as though we were still in the Middle Ages. Senator Jesse Helms of North Carolina has been a leading opponent of the ICC. Even though the U.S. Constitution vests the President with the power to negotiate and sign treaties, the distinguished Senator did not wait for the President to submit the ICC treaty to the Senate for its needed advice and consent but intruded into Presidential prerogatives by proclaiming that it would be "dead on arrival." The wily Senator also introduced legislation deceptively named "The Servicemembers Protection Act" designed to abort the ICC by imposing economic and military sanctions against states that support the court. He managed to have its submission endorsed by Henry Kissinger and several other distinguished former public servants, whose signature seemed more an act of political fealty than considered legal judgment since it relied on many arguments that were demonstrably false. Opponents of the ICC refuse to recognize that in today's interdependent world all major problems are global and require global solutions. Binding international rules have become necessary and are accepted universally to protect the common interest. The prevention of massive crimes against humanity deserves equal protection of universal law.
Mr. Kissinger makes an argument that, when needed, the Security Council can create additional ad hoc tribunals. Until the ICC is fully functional ad hoc courts may prove to be unavoidable to curb some of the more outrageous cases of impunity. But a bevy of independent courts is hardly an adequate deterrent to universal crimes. Justice regarding the most serious crimes in the world cannot depend upon the political whim of those who control the United Nations. The crimes must be spelled out in advance and not condemned only retroactively. Temporary courts created a la carte are very costly and lack the uniformity required by an international legal system. It is understandable that a former Secretary of State should not be eager to place national politicians under the supervision of an international judicial system. He accuses the ICTY of allowing " prosecutorial discretion without accountability" - ignoring all the controls that exist to prevent abuse. He makes the unfounded allegation that the "definitions of the relevant crimes are vague and highly susceptible to politicized application." His statement that "defendants will not enjoy due process as understood in the United States" is refuted by a host of prominent international lawyers, including a former Legal Adviser to both the Defense and State Departments. (See 95 American Journal of International Law (Jan. 2001) 124.)
In concluding, Kissinger, the constant diplomat, makes three "Modest Proposals". He suggests that the Security Council appoint a committee to monitor human rights violations and report when judicial action appears necessary. If the local government has not been democratically elected or seems incapable of sitting in fair judgment, the Council may set up additional ad hoc tribunals. But the Council must specify the scope of prosecutions and provide for due process. He fears "one-sidedness" of the pursuit of universal jurisdiction which "may undermine the political will to sustain the humane norms of international behavior so necessary to temper the violent times in which we live." He ignores the reality that other states will demand the same rights that the U.S. wishes to reserve for itself. What it boils down to in the end is that Henry Kissinger says he agrees with the goals of the international criminal court, and even gives some credit to its advocates, but he fails to recognize that the safeguards he seeks from an ICC are already in place. He remains uncomfortable with what he perceives to be the speed and vigor with which the idea of universal crimes punishable in an international court is now moving forward. His call for a public debate is fully justified. Let an informed public study the facts and then let the politicians know whether they prefer politics as usual to law.
Benjamin B. Ferencz, J.D. Harvard 1943, a former Nuremberg war crimes prosecutor.
Benjamin Ferencz Interviewed on radio by Katy Clark
By Benjamin B. Ferencz and Katy Clark
published: September 2001
source: National Public Radio
Yesterday, Benjamin Ferencz posted a letter on his web page:
Perhaps some of the tears have dried and people can begin to think rationally about the horrors of the past week and what we can do to prevent the recurrence of such tragedies.
Ben Ferencz has spent most of his 82 years doing just that. He was a prosecutor for the United States during the Nuremberg war crimes trials of Nazi leaders. Ferencz's response to the Vietnam War was to withdraw from his private law practice and spend the rest of his life studying and writing about world peace. He founded the Pace Peace Center at Pace University, where he is Adjunct Professor of International Law. Ben Ferencz lives in New Rochelle, New York. You wrote this letter because you believe that we have a choice between whether our country chooses to resolve disputes on the battlefield or in the courtroom. In other words, law versus war. Is that correct?
Yes. I prefer law to war under all circumstances.
And so how does that apply to this particular case in the aftermath of the terrorist attacks?
What has happened here is not war in its traditional sense. This is clearly a crime against humanity. War crimes are crimes which happen in war time. There is confusion there. This is a crime against humanity because it is deliberate and intentional killing of large numbers of civilians for political or other purposes. That is not tolerable under the international systems. And it should be prosecuted pursuant to the existing laws.
So I want to get into that prosecution in just one moment. But first, do you think that the talk of retaliation is not a legitimate response to the death of 5,000 people?
It is never a legitimate response to punish people who are not responsible for the wrong done.
No one is saying we're going to punish those who are not responsible.
We must make a distinction between punishing the guilty and punishing others. If you simply retaliate en masse by bombing Afghanistan, let us say, or the Taliban, you will kill many people who don't believe in what has happened, who don't approve of what has happened.
So you are saying that you see no appropriate role for the military in this.
I wouldn't say there is no appropriate role, but the role should be consistent with our ideals. We shouldn't let them kill our principles at the same time they kill our people. And our principles are respect for the rule of law. Not charging in blindly and killing people because we are blinded by our tears and our rage.
So how would a legal process possibly work? Since there is no permanent international criminal court yet; the U.S. has opposed such a court. Where would terrorists be tried?
We must first draw up an indictment of the crime and specify what the crimes were, listing all the names of the related organizations. Not merely the direct perpetrators are responsible but all those who aided and abetted them before or after the crime. These should be listed and described. And then a demand made pursuant to existing United Nations resolutions, calling upon all states to arrest and detain the persons named in the indictment so they can be interrogated by U.S. examiners.
As you know a federal court, a grand jury, indicted Osama bin Laden almost three years ago in the two U.S. embassy bombings in Africa. That was 1998 and we still haven't brought him to trial.
What I'm suggesting is that the Security Council of the United Nations can immediately call up -- as they have done in connection with the crimes in Yugoslavia and Rwanda, where over half a million people were butchered -- create an ad hoc International Criminal Tribunal to try these criminals on the charges which are applicable under the existing international laws.
So you're saying something that would be akin to an international war crimes court.
It would be an international criminal court. Don't use the word "war" crimes because that suggests that there is a war going on and it's a violation of the rules of war. This is not in that category. We are getting confused with our terminology in our determination to put a stop to these terrible crimes.
So what do you say to skeptics who believe the judicial process is inadequate because it is very slow and very cumbersome?
I realize that it is slow and cumbersome but it is not inadequate. I say to the skeptics, Follow your procedure and you'll find out what happens. You have seen what happens. We will have more fanatics and more zealots deciding to come and kill the evil, the United States. We don't want to do that. We want to uphold our principles. The United States was the moving party behind the Nuremberg Trials and behind insisting upon the rule of law.
So do you believe that because of the fact that we're dealing with terrorists, we are re-writing the rules to a proper response?
We're not re-writing any rules. We don't have to re-write any rules. We have to apply the existing rules. To call them "terrorists" is also a misleading term. There's no agreement on what terrorism is. One man's terrorism is another man's heroism. I'm sure that bin Laden considers himself a saint and so do many of his followers. We try them for mass murder. That's a crime under every jurisdiction and that's what's happened here and that is a crime against humanity.
So Ben Ferencz you were an enlisted man under General Patton, you fought in every campaign in Europe, you've written in your letter in fact about flashbacks that you've had of Normandy, of seeing corpses at Buchenwald, the remorseless Nuremberg defendants who murdered about 100,000 mostly Jewish men, women, and children at Babi Yar near Kiev; now there you are in New York, witnessing this. Yet you close this letter by saying that you have not given up hope. Why not?
Of course I have not given up hope. You must never give up hope. Because hope is the engine that drives human endeavor. We have to change the way people think and that can't be done quickly. We must teach them compassion and tolerance and understanding and a willingness to compromise, if necessary. These are all essential things that take generations to develop. And until we do that I'm afraid we'll suffer the consequences. And we see it in what has happened in New York.
Ben Ferencz lives in New Rochelle, New York. He is the author of, among other books, New Legal Foundations for Global Survival. Nice to speak with you.
Benjamin B. Ferencz: former prosecutor at the Nuremberg War Crimes Trial, particularly Chief Prosecutor of Einsatzgruppen (22 defendants charged with murdering over a million people, called by the Associated Press the biggest murder trial in history). A graduate of Harvard Law School, he served in the Army under General Patton in every campaign in Europe and helped liberate Buchenwald, Mauthausen, and Dachau. Author of numerous books including Defining International Aggression -- The Search for World Peace (1975), An International Criminal Court -- A Step Toward World Peace (1980), Enforcing International Law -- A Way to World Peace (Forward) (1983), A Common Sense Guide to World Peace (Preface) (1985), Planethood: The Key to Your Future (1991), New Legal Foundations for Global Survival: Security Through the Security Council (Summary) (1994), Mr. Ferencz is an Adjunct Professor of International Law at Pace University and founder of the Pace Peace Center, and a Trustee of The Center For United Nations Reform Education. The above is found in the About [the] Center page of The Center For United Nations Reform Education, containing RESEARCH AND PUBLICATIONS ON IMPROVING THE EFFECTIVENESS OF THE UNITED NATIONS SYSTEM. It's Mission Statement reads: The mission of the Center for UN Reform Education is to encourage, generate and sustain a serious public discussion of various specific proposals to reform and restructure the United Nations System, all with a view toward improving the effectiveness of that System. The Center attempts to accomplish its mission through the sponsorship, publication and distribution of carefully researched monographs and papers; through its widely attended public forums, its radio programs and its university conferences; and now, through this newly established Website
After September 11: Thoughts on What Can Be Done
By Benjamin B. Ferencz
published: September 2001
source: Web Posting
Perhaps some of the tears have dried and people can begin to think rationally about the horrors of the past week and what we can do to prevent the recurrence of such tragedies. As one who has witnessed such atrocities and who has looked into the unrepentant eyes of mass killers, please allow me to share some thoughts that I hope may help move us toward a less violent world where all may live in peace and human dignity. The basic thrust of my thinking is that we should try to rely more on law than war.
Hijacking passenger planes and deliberately and intentionally smashing them into large buildings, thereby causing the death of thousands of innocent civilians is clearly a crime against humanity. With origins going back to antiquity, the judicial punishment of such crimes at the Nuremberg trials after the Second World War was affirmed by the United Nations and in many courts since that time. The United States played a leading role in establishing that as a universally binding legal principle.
Any person, without regard to nationality or the capacity in which he acted, is deemed to have committed the crime if he was a principle or accessory, took a consenting part therein or was connected with any organization or group connected with the commission of the crime. Under common principle of criminal law, anyone who aids or abets a crime, before or after its commission, thereby becomes an accessory to the crime and is liable to punishment.
The United States should draw up an indictment against Osama Bin Laden and all of the terrorist groups known to the FBI, alleging the commission of crimes against humanity, details of which should be specified.
United Nations Security Council Resolution 1368 of 12 September 2001 called upon all States urgently to bring to justice the perpetrators and organizers of these terrorist attacks and stressed that those responsible for aiding or harboring the perpetrators would be held accountable. The US indictments should be submitted to the governments of Afghanistan, Sudan, Pakistan, Iraq, Iran, Libya, and any other nations where such terrorist groups may be operating. The US should request that all persons believed to be connected with the crimes should be held hold for interrogation by US officials. A 10-day time limit should be adequate.
The Security Council, acting pursuant to its UN Charter authority, should be called upon to create an international military force (as envisaged by the Charter) to help carry out the SC mandate. The force can be composed of volunteers from NATO or other nations, similar to the force used in the Gulf War.
Should, as expected, Afghanistan refuse or fail to cooperate, the United States should withdraw its recognition of the government in power and recognize the opposition groups as the legitimate government. Economic and military aid should be provided to the opposition to help them gain power over their country. The US can also use economic sanctions as a persuasive carrot and stick to obtain cooperation from all nations.
In the unfortunate absence of any permanent international criminal court, the Security Council, following its own precedents, can quickly set up an ad hoc international criminal tribunal to try the accused - as was done with US support - for the crimes against humanity committed in Yugoslavia and Rwanda. The trials should be absolutely fair. I would have no objection to fair trials in the US, but the world would doubt that it would be possible under the prevailing circumstances. If found guilty, the defendants could be incarcerated in the US - and we could throw away the key!
I have experienced the horrors of war and I cannot bear to see the destruction and the pained eyes of those digging in the ruins or the helpless relatives refusing to accept what they know is now inevitable. I have flashbacks of riding over the ruins of St. Lo in Normandy where the sky was black with American bombers and the earth rocked as a French city was reduced to rubble. I smell the smoke of Wurzburg burning when we dropped incendiary bombs that burned every house to the ground, leaving only ghostly walls standing. I recall the emaciated corpses at Buchenwald and Mauthausen and a host of other charnel houses. And I remember Berlin when the Russians got through with it. I see my remorseless Nuremberg defendants who killed over a million people, including the murder of 33,771 innocent men woman and children at Babi Yar on Sept. 29 and 30, 1941 - the Jewish High Holy Days. All this may help explain the trauma that drives me to try to prevent war.
We must try to understand the causes of the violence and try to diminish the hatreds that encourage people to kill or be killed for their particular cause. This requires new thinking, a willingness to compromise, compassion and tolerance, a greater respect for the goals set down in the UN Charter and infinite patience. I am now approaching 82 and I have not given up hope. To those of all faiths, I extend my best wishes for peace and happiness.
Monroe Leigh Supports an International Criminal Court
By Benjamin B. Ferencz
published: August 2001
source: The American Journal of International Law, Vol. 95:385
TO THE CO-EDITORS IN CHIEF
Monroe Leigh is absolutely right in his editorial comment in characterizing the international criminal court now being formed at the United Nations as “the most important international juridical institution that has been proposed since the San Francisco Conference in 1945.”  Opponents of the ICC have flooded the media with false arguments designed to mislead and frighten the public. Leigh’s objective analysis rebuts the principal U.S. objections and concludes that it is in the best interests of the United States, its nationals, and its military personnel to accept the Rome Statute as soon as possible.
No one suggests that the Rome Statute on which the court is based is a perfect legal instrument. It is a remarkable amalgamation of different legal systems designed to be acceptable to all nations. An outstanding expert on international courts, Shabtai Rosenne, while noting flaws in the statute, describes the ICC as one of the “Two major legal creations . . . of the twentieth century.”  Minor shortcomings can be corrected in time, as is being done by the ad hoc tribunals created, with strong U.S. support, to try those accused of major crimes in Yugoslavia and Rwanda. Remarkable progress is already being made by the United Nations Preparatory Commission mandated to clarify the rules by which the ICC will be governed.
Seeking exceptions for U.S. nationals demeans our nation and the rule of law. Our current posture of a superpower sulking silently is unworthy of our great traditions. Monroe Leigh is absolutely right: it is in the U.S. interest to support the ICC—“better sooner than later.”  Bravo, Monroe!
 Monroe Leigh, The United States and the Statute of Rome, 95 AJIL 124, 124 (2001).
 Shabatai Roseene, Poor Drafting and Imperfect Organization: Flaws to Overcome in the Rome Statute, 41 VA. J. INT’L L. 164, 164 (2000).
 Leigh, supra note 1, at 131.
Ferencz Letter to the New York Times: Murder or Self-Defense?
By Benjamin B. Ferencz
published: August 2001
source: The New York Times, August 22, 2001
To the Editor:
Re "Making Rules in the World Between War and Peace" (Week in Review, Aug. 19):
Legal experts disagree on whether assassination of political adversaries is illegal murder or permissible self-defense. While international violence remains unchecked by clearer laws and effective legal institutions designed to discourage such violence, innocent victims will continue to be killed.
The international criminal court now being formed at the United Nations, despite opposition by the United States, aims to deter such crimes against humanity. The new court will build on the hopes espoused by the United States at the Nuremberg war crimes trials that looked to international law to maintain peace and security for all. To stop unrestrained violence, let us never forget that law is always better than war.
BENJAMIN B. FERENCZ
New Rochelle, N.Y., Aug. 19, 2001
The writer was a Nuremberg war crimes prosecutor.
Misguided War Crimes Law Now Before Senate
By Benjamin B. Ferencz
published: July 2001
source: The Monitor, July 1, 2001
(AP) A misguided trap is being set by right-wing conservatives. It threatens our national security interests and endangers our military personnel.
The cleverly mislabeled "Servicemembers Protection Act" was recently passed by the House and is now pending in the Senate where it was appended as an amendment linked to the Foreign Relations Act authorizing payment of past-due membership fees to the United Nations.
In the guise of protecting our military, the amendment is clearly designed to abort the creation of an International Criminal Court (ICC) now being formed at the United Nations. The Act threatens to impose economic and military sanctions against any nation that dares to support the court.
Republican Senator Jesse Helms of North Carolina leads the vigorous campaign that would repudiate the rule of law laid down at the Nuremberg trials after World War II - that aggression, genocide, crimes against humanity and major war crimes would never again go unpunished. Senator Helms and his supporters demand exemption and immunity for all U.S. personnel.
Conservative attempts to abort the ICC defy the clear wishes of the vast majority of nations, including our leading European allies. We are seen as a bully that wants the rule of law for everyone else but not for ourselves. Without such a court, our military personnel will remain completely at the mercy of their captors, rather than under the protective shield of a fair tribunal created and supervised by the international community.
The campaign to kill the court relies on unfounded allegations designed to frighten an uninformed public. Scholarly studies by outstanding legal experts agree that it would be in the U.S. national interest to support the International Criminal Court.
Those who believe in the rule of law that applies equally to everyone had better let their voices be heard very soon if we are to move toward a more humane and peaceful world.
American Essay: Ex-Prosecutor Warns Against New War Crimes Law
By Benjamin B. Ferencz
published: June 2001
source: Vol. 7, No. 1618 - The American Reporter - June 27, 2001
American Reporter Correspondent, New Rochelle, N.Y.
NEW ROCHELLE, N.Y. - A misguided trap is being set by right-wing conservatives. It threatens our national security interests and endangers our military personnel.
The cleverly mislabeled "Servicemembers Protection Act" was recently passed by the House and is now pending in the Senate where it was appended as an amendment linked to the Foreign Relations Act authorizing payment of past-due membership fees to the United Nations.
In the guise of protecting our military, the amendment is clearly designed to abort the creation of an International Criminal Court (ICC) now being formed at the United Nations. The Act threatens to impose economic and military sanctions against any nation that dares to support the court.
Republican Senator Jesse Helms of North Carolina leads the vigorous campaign that would repudiate the rule of law laid down at the Nuremberg trials after World War II—that aggression, genocide, crimes against humanity and major war crimes would never again go unpunished. Senator Helms and his supporters demand exemption and immunity for all U.S. personnel.
Conservative attempts to abort the ICC defy the clear wishes of the vast majority of nations, including our leading European allies. We are seen as a bully that wants the rule of law for everyone else but not for ourselves. Without such a court, our military personnel will remain completely at the mercy of their captors, rather than under the protective shield of a fair tribunal created and supervised by the international community.
The campaign to kill the court relies on unfounded allegations designed to frighten an uninformed public. Scholarly studies by outstanding legal experts agree that it would be in the U.S. national interest to support the International Criminal Court.
See for example, the publication last year by the American Academy of Arts and Sciences, the comprehensive speech by Senator Leahy of Vermont on Dec. 15, 2000; the recommendation of the American Bar Association in Feb. 2001, the conclusion sent to Congressman Henry Hyde on Feb. 13, 2001 by 10 former Presidents of the American Society of International Law, endorsing "U.S. acceptance of the Treaty without change..."
Or, read the January 2001 editorial in the American Journal of International Law by Monroe Leigh, former Counsel to both the State and Defense Departments, that says the United States can most effectively protect its national-security interests, as well as the individual interests of U.S. nationals, by accepting the International Criminal Court "better sooner than later." None of these persuasive opinions are ever mentioned by opponents of the ICC.
Those who believe in the rule of law that applies equally to everyone had better let their voices be heard very soon if we are to move toward a more humane and peaceful world.
Benjamin Ferencz was a prosecutor at the War Crimes Tribunal following World War II in Nuremberg, Germany.
Copyright 2001 Joe Shea The American Reporter. All Rights Reserved.
Appearance on The National, Canadian Broadcasting Corporation Television
By Benjamin B. Ferencz and Peter Mansbridge
published: June 2001
source: Canadian Broadcasting Corporation
Ferencz Appearance on The National: CBC TV
Copyright 2001 Canadian Broadcasting Corporation
SHOW: THE NATIONAL (10:00 PM ET)
June 26, 2001, Tuesday
LENGTH: 2288 words
HEADLINE: International Criminal Court
ANCHOR: PETER MANSBRIDGE
PETER MANSBRIDGE: First there was Nuremberg and then there was The Hague. And now the world is trying to create an international criminal court to prosecute those accused of crimes against humanity. It's a court from which no one would be immune. Even leaders of sovereign states. The idea has already been ratified by 35 countries, including Canada, but one country is noticeably not on board. In fact, the United States is trying to stop it. Tonight, a documentary report by Carol Off.
CAROL OFF: They've been leaders of countries and their armies. They've also been accused of violations against their own people. They are heads of sovereign nations. But their actions are now considered indictable crimes.
BEN FERENCZ: Those who commit crimes against humanity such as genocide and other major crimes will not get away with it anymore.
OFF: But what if the net tries to catch Americans?
MARK THIESSEN: The nations that have formed this court have basically launched a judicial war on the United States.
OFF: The international criminal court has been the dream of human rights activists since the Second World War. If such a court existed, they argued, no one, no matter how rich or powerful, no matter what country they came from or position they held, no one would be immune from prosecution. No one would be free to commit crimes against humanity. But there's always one principle that stood in their way of such a court, that is sovereignty. Nation states have argued that they are the bosses within their own borders, free to act in their own national self-interest.
FERENCZ: The notion of state sovereignty is a medieval notion which had its place in human history when society was organized into thousands of little fiefdoms all going around killing each other.
OFF: Ben Ferencz is more intimately involved in the issue of war crimes than possibly anyone else.
FERENCZ: The charges we have brought accuse the defendants of having committed crimes against humanity.
OFF: Ferencz was the youngest prosecutor on the American team during the Nuremberg trials. At the age of 27, he faced down 22 members of Hitler's third right. All but three were found guilty.
FERENCZ: It is therefore wholly fitting for this court to hear these charges of international crimes and to adjudge them in the name of civilization.
UNIDENTIFIED MAN (1): Included among the executed...
OFF: It was the first time in history there was a successful international war crimes tribunal, though it was called victors justice since those who'd won the war had full freedom to prosecute those who'd lost. Ferencz has argued in favor of a permanent international court ever since. One that would be applied equally to all nations.
FERENCZ: It was our hope that we could create a more peaceful world. The United Nations would bring nations together and the Nuremberg tribunals would set new standards of law which would outlaw war making itself, which was a supreme international crime and would prohibit crimes against humanity and require people to be tried if they committed genocide or other atrocious acts. That was our hope. And it set the precedent. Unfortunately the intervention of the Cold War was a major impediment to States from accepting that and it's only in recent years that it has begun to go forward from Nuremberg.
OFF: Bloody armed conflict in the former Yugoslavia was one of the first reactions to the end of the Cold War. Campaigns of ethnic cleansing and mass deportation proved that little had changed since Nuremberg. A genocide in Rwanda in 1994, 800,000 people murdered in just 100 days. Such brutality was becoming a hallmark of the post-Cold War era. In response, the United Nations established the first war crimes tribunal since the Second World War. A Canadian became chief prosecutor. Louise Arbour's job was to indict those responsible for the crimes against civilians in both Yugoslavia and Rwanda.
LOUISE ARBOUR (1997): There's no going back. It has to move forward. Otherwise we literally would've been better off never rekindling the Nuremberg dream of having justice contribute to peace. Good morning, Your Honour. I'm the prosecutor. My name is Louise Arbour and appearing with me is...
OFF: The ad hoc tribunals for Rwanda and Yugoslavia seemed like a victory over human rights abuse. But the tribunals begged the question. Why was the world prosecuting just people from Yugoslavia and Rwanda when there were so many other atrocities left unpunished.
PHILLIP KIRSCH: There has been enormous change in the past decade in the way States look at those things. You know, Cambodia, no one did anything. Uganda, no one did anything. Yugoslavia, there was action. Rwanda, there was action.
OFF: Phillip Kirsch is a Canadian diplomat. He's also the chairman of the commission that's planning the new court. He believes that some conflicts get war crimes tribunals and others don't because the powerful UN Security Council picks and chooses according to its member’s political interest.
KIRSCH: The two most obvious cases are those of Cambodia and of Uganda, a couple of decades ago. Nothing was done at the time because the security council was not prepared because of the Cold War, to intervene in situations like that and therefore what has happened is the creation of a bit of cultural impunity except in the few cases where the security council feels politically able to act.
OFF: These people are determined to change that system. Three years ago this month, delegates and diplomats broke into thunderous applause when they established the ground work for the permanent international criminal court, a court that would be independent of the security council or any other political body. An astonishing 120 countries accepted the court in principal. The chairman of the Rome conference, Phillip Kirsch saw it as a new era in human rights. Kirsch and Canada play a key role in developing the rules for the new court.
KIRSCH: The international criminal court is an extraordinary important historical development that it has been said by many, many people and is considered by many States as the most important international instrument since the United Nations charter.
THIESSEN: With all due respect to Chairman Kirsch, who I know very well from, from Rome and from all the preparatory commission meetings, he's simply wrong.
OFF: Mark Thiessen was the spokesman for the Senate Foreign Relations Committee of the United States. He represents the fierce U.S. opposition to the international criminal court.
THIESSEN: What was done in Rome is that power was taken out of the hands of the Security Council and it was put in the hands of an independent prosecutor who doesn't have to go, who has no checks on his power. So any states that's a party to this treaty can bring a case to the prosecutor and simply say we think the United States has committed war crimes.
OFF: A number of countries have refused to endorse the treaty for the new criminal court or they would still be subject to its jurisdiction, whether they sign or not. But without the U.S. support, without its money and its military muscle. Many people don't believe the court can function. The United States signed the treaty in principle only as Bill Clinton left office. It was never ratified. The Bush administration is making it very clear what it thinks of the new court.
THIESSEN: The American people are the only ones who have the sovereign authority to decide whether or not we will join the international criminal court. And the countries of the world ganged up on the United States in Rome and said we're going to put you under this whether you want to be under it or not. I consider that a front, an affront.
OFF: This is how the new international criminal court would work. All countries in the world would have the right to prosecute their own citizens should they be accused of any crimes. But if they won't, or they can't do it adequately, then the individual would have to face the new court. The United States says this is fine as long as it has a final veto on all cases. A veto like the one the U.S. has at the security council of the United Nations.
THIESSEN: The countries of the world laughed when the United States proposed this. They were, when the, when the U.S. effort to do this in Rome was defeated, there was a standing ovation among the, a sustained applause among the countries who had defeated the resolution because they don't want the United States to have the ability to veto cases.
CHRISTOPHER HITCHENS: The United States can't remain the grand international moral tutor lecturer and abstain from this court on the grounds that it might one day have to try an American.
OFF: Christopher Hitchens is one of America's leading journalists on human rights issues. He's just published a new book, The Trial of Henry Kissinger. In it her argues that President Richard Nixon's chief foreign advisor is actually a war criminal. The book says Kissinger is implicated in every human rights atrocity from Vietnam to Chile.
HITCHENS: All of the people who Henry Kissinger partners in power in the practice of power while he was Secretary of State and National Security Advisor. Generals Papadopoulos in Greece, General Pinochet in Chile, General Suharto in Indonesia. Do you see where I'm going with this? All in jail or facing it in their own countries. Again, the one conspicuous non-indicted person. How is the United States to live with this? Either for the sake of its own democracy or for the sake of other people's. It's too much. It's too much of a contradiction.
OFF: What does this say about issues of sovereignty and this, and if we are in a new era of human rights where the Pinochet's and Milosevic's, even the Kissinger's can't get away with this anymore without someone questioning at least, what does this say about national sovereignty?
HITCHENS: No country claims that its own sovereignty can override the findings of Nuremberg. It's been rather more pointful though by the arrest of Mr. Pinochet, by the warrant for Mr. Milosevic, and by a number of other cases recently as well.
OFF: When NATO jets bombed Yugoslavia in the spring of 1999, the world got the first taste of how much the notion of sovereignty had changed for everyone. During the campaign, NATO claims hit several civilian targets, most notably a passenger train and the Chinese Embassy in Belgrade.
UNIDENTIFIED MAN (2): Okay, let's run it.
OFF: Yugoslavia demanded justice and a number of human rights groups wanted the Hague tribunal to investigate NATO for war crimes.
UNIDENTIFIED MAN (3): And it was an unfortunate incident.
OFF: The court ultimately decided not to prosecute, declaring the acts were not war crimes. But it was the first indication that the U.S. could be indicted for doing what it considers is its right to do. And that got some powerful Americans very angry.
JESSE HELMS: I don't think...
OFF: U.S. Senator Jesse Helms introduced legislation called the American Service Members Protection Act. It prohibits any U.S. cooperation with the new court. The bill is now in the Senate. Congress is playing hard ball, claiming that the court will be used not for justice, but as a political tool directed against America and its soldiers.
THIESSEN: The United States is the one country in the world that is projecting its power around the world for the cause of freedom. It would be, whenever there's a crisis in the world, a humanitarian intervention of some kind that needs to be done, a war that needs to be fought like the Gulf War, intervention like the one in Kosovo. It's always, it's always the United States that has to take the lead to do this. And there are a lot of people who resent the power of the United States. A lot of enemies of freedom around the world who resent our power and our projection of it and want to constrain it. And they will use the international criminal court as a tool for politicized prosecutions.
HITCHENS: When American conservatives argue that a war crimes tribunal would impede the orderly functioning of our foreign policy, it's proper to ask what kind of foreign policy they have in mind or think they are running or have been running. And that might, that shoe might pinch a little tighter than some would like.
UNIDENTIFIED MAN (4): I declare open...
OFF: Those are putting the court together say it will go ahead no matter what the United States decides to do. They hope America will be isolated and then shamed into taking its rightful part as it sees its friends and allies support the new court.
KIRSCH: It's a tidal wave of support. Almost every day in late 2001, States that were initially opposed to the court came on board. So it's work in progress. I don't think failure is a possibility.
HITCHENS: I believe that in the last two to three years, I dated myself from the arrest of Augusto Pinochet in London, we're within sight of one of the oldest dreams that humanity has ever evolved and has never lost in spite of innumerable cynicisms which is one day the law will apply in search of the great, to the mighty, will apply to the people who make the laws, will have to be judged by them as well. And I think now would be the perfect time for a demonstration case and to see if our nets so expensively woven will actually hold a big fish or not.
OFF: For The National, I'm Carol Off.
MANSBRIDGE: Still ahead on The National, this story.
WARREN DUNCAN: That's black bear, green butt, black bear, red butt, air wing, blue chair with a yellow butt...
MANSBRIDGE: It's the language of an addict. Tom Alderman takes us inside the world of people hooked on fly tying.
Letter to US Senate
By Benjamin B. Ferencz
published: May 2001
source: Letter, May 18, 2001
On May 10, the US House of Representatives by a vote of 282 to 137, passed HR 1648, the so-called American Servicemembers Protection Act, designed to kill the International Criminal Court now being formed to carry out promises made at Nuremberg by the US and its Allies that aggression, genocide, crimes against humanity and major war crimes would never again be allowed to go unpunished. The act seeks complete exemption for US nationals and threatens economic and military sanctions against nations that choose to support the Court. Sponsors of HR 1648 have relied on arguments that are demonstrably false and intended to frighten the public into believing that the proposed new court poses a threat to US personnel and interests. The exact opposite is true.
All of the arguments against the court have been meticulously examined by outstanding legal scholars who have reached the conclusion that it is the US interest to join the new Court as quickly as possible. Reference to some of these expert opinions can be found on Numbers 3, 8 and 10 of my articles listed on my website shown below. Particular attention is invited to the positions taken by Monroe Leigh, former Legal Advisor to both the Pentagon and State Department, whose views appear in the latest issue of the American Journal of International Law (Vol.95, vol.1, PP 124-131.) His conclusions have been endorsed by ten former Presidents of the American Society of International Law - our oldest and most prestigious law journal.
A peaceful world requires international laws that apply equally to everyone. It will now be up to the US Senate to decide whether it wishes to accept the House amendment that grants immunity to Americans and penalizes those who support the rule of law. What kind of a world do you want? Now is the time for those who support the ICC to inform their Senators, and the public, on this subject.
BENJAMIN B. FERENCZ
A former Nuremberg Prosecutor
Battle Lines for an International Criminal Court
By Benjamin B. Ferencz
published: March 2001
source: Web Posting
By Benjamin B. Ferencz
The battle lines are being drawn between those who believe in the rule of law and those who do not. A powerful and respected American voice has been raised to support the establishment of the International Criminal Court. It rebuts the ill-informed and misguided views of those who denounce the proposed court as a threat to American interests and military personnel. It deserves the widest possible dissemination by those who support the ICC.
Monroe Leigh has been Legal Adviser to both the State and Defense Departments. He is a past President of the American Bar Association and the American Society for International Law and is an outstanding authority. On Feb. 21, 2001, he wrote to Chairman Hyde, of the House Committee on International Relations, that the Bill introduced by Senator Jesse Helms (The American Service Member's Protection Act S.2726, June 14, 2000) as a preemptive strike against the ICC, (and opposed by the State and Defense departments) was replete with misconceptions. Nonetheless, the Senator had managed to obtain signatures from, a dozen distinguished American leaders, including ex- Secretaries of State, CIA and National Security Advisers, in opposition to the ICC. Leigh, ever the gentleman, said the signatories were simply misinformed. In fact, assured Leigh, the ICC would offer greater protection to Americans in military service than now exits at home or abroad.
Leigh warned that persistent efforts by US negotiators to exempt American military personnel from legal restraints that other nations were being asked to accept could only exacerbate relations with our allies. To rebut the signatories assembled by Helms, ten former Presidents of the America Society of International Law, including its Honorary President Stephen Schwebel, added their names to the Leigh memo. These very distinguished American jurists - in their personal capacities - concluded that the US should accept the Treaty for an ICC "without change in the text."
To top it off, Monroe Leigh wrote a COMMENT that will appear in the next issue of the prestigious American Journal of International Law (Vol.95.No.1, A. 2001). He analyzes the arguments put forward by those who would reject the ICC - described by Leigh as "the most important international juridical institution that has been proposed since the San Francisco Conference of 1945." He notes that under existing international law the sovereign of the territory where a crime is committed has jurisdiction to try the captured offender. The notion that US nationals cannot be tried for war crimes if their government is not a party to the ICC treaty is not supported by existing international law as recognized by the highest US courts.
Strident demands for exceptionalism can only reinforce suspicions about American hegemonic ambitions. Leigh notes ICC provisions that give national courts absolute priority to try the accused in a fair trial. He ridicules "the specter of the politically motivated Prosecutor" and spells out the many safeguards that will prevent abuse and protect the rights of the accused. He dismisses the criticism that the ICC might deny due process to US service personnel as "totally misplaced." His conclusion: "In sum, the United States can most effectively protect its national-security interests, as well as the individual interests of US nationals, by accepting the Statute of Rome - better sooner than later."
Many others, of course, have spoken out in favor of the Court, including the excellent survey of legal experts by the American Academy of Arts and Sciences.. The conclusion of that comprehensive study, articulated by Harvard Law Professors Abram Chayes and Anne-Marie Slaughter: "The United states should be taking the lead in shaping these new institutions. It is not too late." Opponents of the ICC do not speak for the United States. Leigh, a conservative "establishment" man of impeccable credentials, has raised a respected voice in opposition to unsound harangues coming from uninformed adversaries. (I am grateful to Heather Hamilton of the World Federalist Association for drawing my attention to the Leigh correspondence.)
Despite the organized and vocal opposition to the ICC, President Clinton directed Ambassador Scheffer (who represented the US at the UN with distinction) to sign the Treaty at the last moment. It was an important symbolic act - showing that the outgoing Administration favored the goals of the ICC, despite need for improvements. Opponents of the ICC howled with anger and threatened to erase the signature - a rather bizarre suggestion. The US now sits silent at the UN deliberations. The new Repblican Administration will have to be persuaded that the ICC is in our national interest. Let the voice of the informed public now be heard
Bravo, Monroe Leigh, Bravo!
Ferencz Response to Safire Op-Ed, "The Purloined Treaty"
By Benjamin B. Ferencz
published: May 2001
source: Edited version published in the International Herald Tribune
William Safire's article in the NY Times of April 9 is an example of muckraking at its worst. He opposes the creation of the proposed new International Criminal Court and asserts arguments that are demonstrably false, misleading and designed to frighten an uninformed public.
He says, "the agreement empowers a global court to try and imprison Americans, Israeli and other citizens of democracies for the undefined crime of “aggression.” The exact opposite is true. The Rome Treaty specifically provides that the Court will have no jurisdiction whatsoever to try anyone accused of the crime of aggression unless there is an amendment acceptable to almost all the parties that redefines aggression and clarifies the role of the Security Council consistent with the UN Charter. Such an amendment cannot even be considered until seven years after the Court starts functioning.
Safire says the prosecutor "would surely accede today to an Arab League request to indict Israeli soldiers and tomorrow to indict any US officeholder or servicemember who dared to offend a local dictator." This unsubstantiated and absurd prediction is based on the further erroneous supposition that "the prosecutor is answerable to no nation and unrestrained by any Bill of Rights." It totally ignores the fact that the prosecutor is subject to a host of judicial and administrative restraints that guarantees every accused person rights that exceed those now protecting American military personnel. His attempt to frighten readers by his warning that "no US sailor or president could travel abroad without becoming vulnerable to arrest by a politically motivated prosecutor" again stands truth on its head. Safire is describing the situation today, as Chile's ex-Dictator Augusto Pinochet discovered. The proposed new International Criminal Court would protect the accused against malevolent or unfounded prosecutions.
Mr. Safire ignores the opinion of leading academic and military experts that led the American Academy of Arts and Sciences to conclude that it would be in the interests of the United States to accept the new Court. The same conclusion was reached by the American Bar Association and by ten living past Presidents of the American Society of International Law. These are all serious scholars and experts whose views deserve the greatest respect. Safire echoes rabid arguments of opponents of the rule of international law that is needed to deter all nations equally. His article demeans his status as a serious journalist and diminishes the New York Times for publishing such an uninformed diatribe.
My website lists sources that may help serious readers find the truth.
BENJAMIN B. FERENCZ
A former Nuremberg War Crimes Prosecutor
Ferencz Sounds the Alarm
By Benjamin B. Ferencz
published: February 2001
source: Open Letter
Thanks to all of you who have disseminated information that should sound the alarm regarding a new threat designed to abort the establishment of an international criminal court I refer to House Concurrent Resolution 23, submitted by Republican Representative Ron Paul of Texas and colleagues on Feb. 8, 2001. (He was the only member of Congress who voted against House Res. 34 on Feb 13, 2001, calling for peace in the Middle East.)
H.C.R. 23 expresses "the sense of Congress that President George W. Bush should declare to all nations that the United States does not intend to assent to or ratify the International Criminal Court Treaty... and the signature of President Clinton to that treaty should not be construed otherwise." An organization called "The Liberty Committee" (boasting that it has some 50,000 members representing every district in the USA) has launched a nationwide campaign and has reported that some 20,000 people have already signed their petition to President Bush to rescind the signature to the treaty authorized by President Clinton on Dec. 31, 2000. The Resolution has been referred to the House Committee led by Representative Hyde who is reported to have denounced the treaty as "an assault on our sovereignty."
Everyone, of course, is entitled to express one’s own views regarding the court. But it should be cause for grave concern to see the Petition of "The Liberty Committee", displaying the American flag and the heading AMERICAN JUSTICE FOR AMERICANS, list on their website a host of press releases and articles, editorial and position papers denouncing the court for reasons that are palpably false and misleading. This is part of a well-organized attempt to frighten and stampede the American public into believing that the new court would pose a threat to the United States, its military personnel and all its citizens. The arguments and goals are similar to those made in connection with the pending U.S. Servicemembers Protection Act introduced by Senator Jesse Helms of North Carolina, the most outspoken critic of the Court.
No one argues that the treaty is perfect - far from it - but it is an important new institution to deter major international crimes against humanity by bringing leading perpetrators to justice. The recent careful study by the American Academy of Arts and Sciences contains views of leading scholars from academia, the government and the military that support the conclusion that signing the treaty would be in the interest of the United States.
The views of the so-called "Liberty Committee," are reminiscent of the "America First" positions prior to World War II. Isolationism and unilateralism can only exacerbate the growing feeling abroad that the U.S. seeks to lay down rules for the rest of the world that it is not willing to accept for itself. That would be a flagrant repudiation of legal principles laid down by the United States and its allies at Nuremberg and hailed by the entire General Assembly of the United Nations. Helen Brady's fine article of Feb. 13, circulated by the CICC, made plain that the ICC would not diminish national sovereignty but would reinforce a nation's "commitment to a peaceful and just world and the rule of law." NGO's in the Coalition, and nations, including America's leading allies, that have signed on for the court, have made plain that they share the same view. We must continue to make our voices heard if this great hope is to be kept alive until a more favorable climate for its ratification by the U.S. can be created.
Now is the time for all good men, and women, to come to the aid of their country. Warm greetings to you all.
Remarks on Receiving The Robert S. Litvack Human Rights Award
By Benjamin B. Ferencz
published: February 2001
source: Web Posting
Thank you very much, Irwin. After this wonderful address by Judge Goldstone, there isn’t very much left to say, but let me explain how I got here. I received a call from Israel where Irwin Cotler was at that time. I was down in Florida. I hadn’t seen Professor Cotler for several years, and he began by asking, “Ben, how are you?,” which I interpreted to mean, “Are you still alive?”
I’m quite sure that he had canvassed more important Nuremberg prosecutors, but they were unfortunately dead so they couldn’t come, and-even in their present condition-if they heard about the freezing weather in Montreal, they wouldn’t have come anyway. I asked, “What am I supposed to do there?”-I heard he might be planning to give me a “plaque” that I’d have trouble getting into a plane. He explained, “Well, I want you to make a speech. I want you to make a statement. You’ve had fifty years of experience, so please tell us everything that you have learned, and what we have to do. Take as much time as you want-up to three to five minutes!”
Since I don’t mess around with Irwin Cotler, I’m going to do just that. You’ve heard something about my background, and how I got involved in combating genocide. It was pointed out by Silvia Litvack that I began by landing in France; “J’ai fait le débarquement de Normandie” (since I am in Montreal, I’ll show off my French). Other soldiers landed in water up to their waist; for me it got up to my chest. That was the beginning of my education for peace. Since I don’t have an unlimited amount of time, the jokes are on your time, Irwin. Let me just tell you briefly what happened in the last fifty years to me, and see what lessons it leaves for you. I won’t pay attention to your instructions to talk about “What have we learned? What are we going to do?” I can tell you what I have learned, and what you are going to do.
My wartime experiences led me into the concentration camps, which were so vividly described by Judge Rosalie Abella. I was a liberator. I saw the crematoria while they were still burning. I arrested criminals; I dug up bodies with my hands. That led me to a career as a war crimes prosecutor at Nuremberg, where I got to know the murderers-the remorseless killers-personally. The trial in which I was a chief prosecutor was the Einzatsgruppen case, in which the twenty-two defendants were convicted of murdering over a million people, mostly Jews and Gypsies, in cold blood-men, women, and children. Thirteen of the defendants, including six SS generals, were sentenced to death. Since I was inexperienced and was only twenty-seven years old, I rested the prosecution’s case after two days. That’s a record for some young people to try to match. The trial itself lasted much longer, but it took that added time to rebut the lies and the denials, which came from the defendants.
I learned about the mentality of intelligent German leaders-I only picked leaders to stand trial and most of them had doctor degrees! I learned that there are all kinds of people in the world, and the same mentality that made the Holocaust possible exists today. It exists in all countries. You’ve heard it described by other speakers at this conference. The perpetrators of the crimes in Rwanda and Yugoslavia reflect the same cruel thinking. What I saw and experienced had quite a profound effect on me. The trauma is still with me.
One young student here asked: “Tell us, how do you work against the system? Do you do it on the inside or on the outside?” Well, you do it inside, and you do it outside, and you do it every way you can. I stayed on in Germany after the war and the trials, and helped set up the restitution programs for all Nazi victims. That turned out to be an enormous operation that cost the German government over 100 billion marks so far, which is about 60 billion American dollars. There has been very little publicity about that vast, and still inadequate, program to compensate survivors of persecution. An important step forward was taken in Rome last July when, for the first time in human history, an international criminal statute prescribed that victims of crimes against humanity are, as a matter of legal right, entitled to restitution, compensation, and rehabilitation. That was a wonderful thing, because when I was working on that for very many years, there were no precedents for it whatsoever. There were certain principles of law and equity which seemed important to me. Those precedents were created quietly, but nevertheless they were there to be built upon until they could be universally recognized.
What is the conclusion? I only have a minute and a half left. What have I learned? I’ll only mention things that have not already been covered. Creating a more humane world is a long and difficult process. I’ve been working at it for over fifty years. I didn’t invent the idea of an international criminal court. I first read that in a book published in French in 1920 by a man named Vespasian Pella, entitled La jurisdiction pénale de la loi de l’avenir-or something like that. I wrote a two-volume book on an international criminal court about twenty years ago, in which I listed all the people from different lands who had been in favour of such a tribunal. But the wise thinkers got nowhere because the political will was absent. I have seen that it takes a long time to change the way people think-to change fundamental institutions. Judge Goldstone and others have talked to you about sovereignty-an idea which is eroding. It’s absurd as we enter the next millennium to be talking about medieval concepts like that, which are based upon the divine right of kings to pass on all property and absolute rights only to their first male heirs. And yet, this outmoded doctrine of state sovereignty still guides the world, and it is so difficult to change.
I’ve learned something else which is very important. If you keep at it, and you never give up, you begin to see change. Judge Goldstone has listed key events, the entire hierarchy, going back to the Hague Convention where parties agreed upon rules for more humane ways to kill each other, and later, the international criminal courts at Nuremberg and Tokyo and the ad hoc tribunals created by the Security Council of the UN and the recent Statute of the International Criminal Court.
These were all important steps forward, despite major defects, some of which are ridiculous. For example, Judge Goldstone referred to the rules, after the First World War, that outlawed the use of dumdum bullets which are made of soft lead and make a big hole in the body as they kill you. The use of such weapons-that are obsolete-is still listed as a war crime, yet it’s not yet illegal to drop a nuclear bomb on a city. Is that not ridiculous? Is that not the dumbest thing you can think of? The emperor is not only naked, he’s stark raving mad!
Why aren’t you screaming? Why aren’t you screaming? This is the job for the young people to do. I have pretty much run out of steam, at least I’m running out of years-I’m past seventy-nine. There are many things you can do. The best thing you can do is just use your common sense. Never mind the traditions. Never mind the institutions. If you know in your gut that something is wrong, and it smells, start screaming and try to change it. And you know what will happen? You’ll be marked as a fool, and for a long time you’ll struggle, and people will sit on you, and they will call you the “Man of La Mancha” and nobody will read your books. But the time will come when you’re old and grey that some people will present you with an impressive citation-that you can’t carry-and it will say something about what a wonderful effort you’ve made. And you’ll begin to see change.
In conclusion, what lesson do I give you? What can you do? First of all, never lose hope, never lose hope. Hope is the engine that sustains human endeavour, and it gives you the energy that you need to carry on. And you can’t lose hope because what are your options? Are you going to accept the world the way it is? If you are satisfied with the killings and the misery and the hate, then go home and play ball-don’t come to lectures like this. Just hope that you’re not the next victim - and there is no guarantee that you won’t be the next victim. On the contrary, you will surely be a victim. One day you will all be victims if the world continues this way. So you mustn’t lose your hope. You mustn’t lose your energy and your drive. You must keep trying; you must never give up. And then if you do that, fifty years from now, you will be surprised, there will be a change. So I wish you all the best of luck and I thank you for the opportunity of being here. [Applause]
I treat your applause as a request for an encore. Philippe Kirsch managed to get away, unfortunately, before I could thank him. We had agreed beforehand that the best thing that we could do, since this was Montreal, would be for him to simply say “merci” for his award and I would simply say “thank you”. And that would be the end of it. But he got away with saying nothing and I got stuck with three to five minutes. As a sign of my personal esteem for the great job he did at Rome, I wanted to give him a token of appreciation that might be a little easier to carry. It’s an interesting historical document, and it will link what we were talking about. This is a xerox of the covering page of the Statute of the International Criminal Court as it was adopted in Rome, saying that, for the first time in history, “an International Criminal Court is hereby created”. This was on 17 July 1998, and some of the key people who were there signed this cover page. The signatures were collected by Bill Pace of the Coalition for a Permanent International Criminal Court, and include UN Secretary General Kofi Annan, Emma Bonino, European commissioner of human rights, who played a very important role, the president of Italy-and many others. I thought this would be a nice souvenir of a very historic event. The first name on the top - and it’s purely coincidental, I’m sure,- is Benjamin B. Ferencz. And the last name on the bottom is Philippe Kirsch, who chaired the conference so brilliantly. I thought, here is a chance for me to say to Philippe that I came in at the top, and that your name is at the bottom signifies that you will now carry on. And I pass now the baton to you to continue the race to a more humane world.
I now pass this small document to Professor Irwin Cotler with the obligation to give it to Philippe Kirsch for his folder. Again, I thank you all.
Deterring Aggression By Law - A Compromise Proposal
By Benjamin B. Ferencz
published: January 2001
source: Web Posting
The Nuremberg Precedent
In his opening address before the International Military Tribunal at Nuremberg in 1945, Robert Jackson, Chief of Counsel for the United States, declared: "This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace and to commit aggressions against their neighbors." Jackson, on leave from the US Supreme Court, was convinced that domestic tyranny and war could only be curbed "when we make all men answerable to the law." He appealed for judicial action to assure that those who start a war will be held to personal account. He made it explicitly clear that the law of peace had to apply to all nations "including those who sit here now in judgment."
After reviewing the precedents and the existing law, the learned Judges on the international Tribunal concluded:
"The charges of the indictment that the defendants planned and waged aggressive war are charges of the utmost gravity... To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
Germany's illegal acts were spelled out in detail but neither in the Nuremberg Charter nor the Judgment was the crime of aggression specifically defined. In what the world has come to recognize as a fair trial, five Nazi leaders were sentenced to death for planning and supporting Germany's aggressions. Jackson reported to the President of the United States that "at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right."
The Nuremberg precedent was followed by many similar tribunals and its judgment was unanimously affirmed by the first General Assembly of the United Nations. UN committees were appointed to codify international criminal law based on the approved Nuremberg principles and to create a new international criminal court to enforce the code (Res. 95(I), 11 Dec. 1946). The Soviet Union proposed a simple test: the nation that fired the first shot should be branded the aggressor. The United States insisted that subversion and assistance to foreign-armed bands that threatened US interests should also be criminalized.
Diplomats from both sides of the ideological divide argued that as long as there was no agreed definition of "the supreme crime”, no code would be complete and until there was a code there was no basis for a new criminal court. Definition, code and court were thus linked and put on ice by the "cold war." Powerful nations were not ready to yield vital sovereign rights to an untried security system based on the rule of law. While committees quibbled, the world went back to killing as usual. It seemed easier to commit aggression than to define it.
The 1974 Consensus Definition of Aggression
After almost 30 years of wrangling, with the political freeze beginning to thaw, a definition of aggression was reached by consensus and approved by the General Assembly on 14 December 1974 as Resolution 3314 (XXIX). Its imprecision was a product of compromise. Consensus was reachable because the definition was laced with clauses of such delicate ambiguity that nations might interpret the text to serve their own political purposes. The Preamble merely called upon states to refrain from aggression and other uses of force, and recommended that the Security Council "take account of that Definition as guidance...” Nations seemed to have forgotten, or chose to overlook, the fact that the 1946 General Assembly mandate was to draft a definition, not merely to serve as a guide to the Council, but as the most important provision of a new criminal code that would legally bind everyone and serve the cause of world peace.
The eight substantive articles began with a generic declaration: "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the UN." The first use of armed force would be "prima facie evidence of an act of aggression". But the Council could conclude that it should not be characterized as aggression "in the light of other relevant circumstances." Illustrations of flagrant forms of aggression, such as invasion, military occupation, bombardment, blockade, or attack were listed, but the list was not exhaustive and the Council could determine that other acts were also aggression. In effect, the decision whether aggression by a State had taken place was left to the Security Council acting "in conformity with the Charter".
Many States insisted upon assurances that they would not be criminally condemned for actions they regarded as lawful because they were in pursuit of objectives specifically approved in the UN Charter. To meet these concerns, a number of exculpating clauses had to be included in the definition. It was finally agreed that nothing in the definition could prejudice the efforts of peoples under alien domination in their struggle for "self-determination, freedom and independence." It was stipulated however that such actions had to be "in accordance with the principles of the Charter..." (Art.7). The view was thereby accepted that certain actions taken for legitimate purposes and consistent with the Charter should not be branded as aggression. The fact that lawful goals could only be legitimately pursued by lawful means was not made quite clear. Achieving a definition of aggression was the key needed to open the door to further work on the international code and court.
The International Law Commission Definition
The International Law Commission (ILC), composed of 34 distinguished legal experts, had been drafting the Code of international crimes and the Statutes for the Court for decades. In 1996, they completed their draft criminal Code listing five categories of crimes that they felt threatened the peace and security of mankind and should, therefore, be subject to international criminal jurisdiction. Aggression led the list. The Commissioners concluded that 50 years after Nuremberg it would be retrogressive to exclude individual responsibility for the crime of aggression. They were fully aware that the Nuremberg convictions were obtained despite the absence of a detailed and precise definition of the crime. They concluded that it could be left to practice to determine the exact contours of the offense.
The experts on the ILC agreed that war was intrinsically and inextricably linked to actions by a State but they recognized that nations are abstract entities that can act only through individuals. They felt that criminality could be imputed to persons who participated in a conspiracy for " planning, preparation, initiation or waging of a declared or undeclared war of aggression...."By restricting culpability to those leaders who had the necessary authority, knowledge and power to plan and carry out a policy of aggression, the essential elements of criminal intent would necessarily have to be present. Holding such individuals accountable in a court of law would not violate any principles of legality or fairness.
As an added safeguard (and to make the consensus acceptable to the 5 Permanent Members) it was agreed that no individual could be convicted of aggression unless there was a prior finding by the Security Council, acting pursuant to its Charter responsibility under Article 39, that aggression by a State had occurred. But many nations were not prepared to trust the Security Council to make a fair determination on politically-charged issues. They feared that if the ICC were tied to the Council, the Court would lose its independence and become a tool of major powers that might commit aggression with impunity. Various UN Preparatory Committees tried for years to reconcile conflicting views on how to create a fair and independent international criminal court. It was a grinding and slow process that culminated in a meeting of Plenipotentiaries that took place in Rome in 1998.
What Happened to Aggression in Rome?
Other enormous procedural and substantive difficulties were finally resolved and the international community stands on the verge of establishing a permanent international criminal court based on a Statute adopted in Rome by overwhelming vote on 17 July 1998. A Preparatory Commission (Prep/Com,) composed of all interested States, is now charged by the General Assembly with responsibility for taking steps necessary to bring the ICC into existence. Whether aggression would be included as one of the four "core crimes" within the new Court's jurisdiction remained one of the most controversial questions. Faced with the inability to reach general agreement, the issue was deftly deferred. The Rome Statute mandates that before the Court can deal with that crime, aggression must first be redefined, its elements stipulated and the conditions assuring the Court's independence must be set forth in an amendment that is consistent with the UN Charter. Amendments require near-unanimous agreement by the Parties and can only be considered seven years after the Court is established - following ratification of the Rome Treaty by at least 60 nations. Until all these pre-conditions are met, those who commit aggression will remain immune from prosecution by the new Court.
By 30 June 2000, the Prep/Com, in addition to drawing up the detailed Rules of Procedure that were to serve as guides for the ICC, had succeeded in listing the Elements of Crimes that had to be established before an accused could be convicted. Regarding the three core crimes of Genocide, Crimes against Humanity and War Crimes, it was agreed that the essential elements of consent and knowledge could be inferred from relevant facts and circumstances. How to specify and identify the elements of actions that constitutes Crimes against Peace, and how to be sure that the Security Council could carry out its UN Charter mandate without detracting from the independence of the Court, remained formidable obstacles still to be overcome.
Prep/Com Debates on Defining Aggression and the Role of the Security Council
(1) Some Views on Revising the Definition
Discussions on the definition and the role of the Security Council continued during formal and informal sessions in 2000. Many views were expressed but no one spoke out against including aggression as a punishable crime. The Russian Federation proposed a simple one-sentence definition saying: "the crime of aggression means any of the following acts: planning, preparing, initiating, carrying out a war of aggression." Colombia welcomed an Italian proposal on methodology and proposed a general definition that would provide more flexibility than a detailed list. Greece and Portugal submitted a brief proposal based on the broad generic terminology of the 1974 consensus. The German delegation, led by the creative and energetic Hans-Peter Kaul, proposed several accommodating compromises that relied on the most important ingredients from the Nuremberg precedents, Resolution 3314, and the mandates of the UN Charter.
Iran, on behalf of the "Non-Aligned Movement" (NAM) of some 30 Arab and African states, stressed the importance of retaining Resolution 3314. That consensus had listed any military occupation or territorial annexation as possible acts of aggression and had endorsed struggles for self-determination and freedom from alien domination - providing such efforts were "in accordance with the principles of the Charter". In 1999, a coalition of eight Arab States, going beyond the definition agreed upon in 1974, took a reverse and more categorical approach. Instead of stipulating that actions in pursuit of Charter goals would not be regarded as aggression, they wanted the definition to specify that acts in opposition to Charter goals are criminal. They would specifically categorize as aggressors those leaders responsible for depriving "other peoples of their rights to self-determination, freedom and independence in contravention of the Charter of the UN... “According to their proposal, using armed force to threaten "the inalienable rights of those people" should also be characterized as criminal aggression.
US Ambassador David Scheffer warned against moving into uncharted territory that sought to criminalize deeds that were not already sanctioned by customary international law, were not generally followed by the practice of States, and were not included as violations under any domestic legislation. He echoed his British colleague's argument that the definition should focus only on the traditional war of aggression. The US felt strongly that only the Security Council could determine when aggression by a State had occurred and that only the Council should decide whether any action was "in contravention of the Charter." He argued that the agreed definition of 1974 was not a declaration of universal law but only a guide for the Security Council that had no legally binding effect. He particularly cautioned against other nations trying to straightjacket Member States in their acts of humanitarian intervention. The permissible limits to humanitarian intervention without Security Council authorization became another major issue that threatened to block US support for the Court
(2) Views on the Role of the Security Council and the ICC
There can be no doubt that Article 39 of the United Nations Charter assigns primary responsibility to the Security Council to determine whether an act of aggression by a State has occurred. The Council is also vested with authority to determine what actions should be taken to restore peace. No Treaty can derogate from that responsibility and authority that binds all members of the United Nations. If the Council were to be by-passed by the ICC before it had determined that a State had committed the acts of aggression for which an individual defendant had been charged, the argument could be made by the accused that the Court was exceeding its authority by usurping a responsibility that all UN Members had legally delegated to the Security Council. A conviction by the Court under such circumstances might have to be set aside as illegal and could not be enforced. That legal and political reality should not be overlooked.
A dilemma is faced where individual national leaders are suspected of committing the crime of aggression and the Council, for whatever reasons, fails to make any determination that aggression by a State has taken place. Must the ICC remain paralyzed until the Council reaches such an enabling conclusion? In 1998, Cameroon proposed that under such circumstances the ICC, after a reasonable period of time, could commence its investigation of the crime. Egypt suggested that the ICC might be able to turn for help to the International Court of Justice for an Advisory Opinion or to the General Assembly for authorization under "Uniting for Peace" precedents that allowed the Assembly to intervene if the Council became disabled. Not surprisingly, all attempts to limit or by-pass the powers of the Council were vehemently opposed by the Permanent Members, whose support for the ICC was vital.
A Compromise Proposal to Break the Impasse
If agreement by consensus is to be reached, a greater effort must be made to reconcile remaining major points of contention. The foundation stones must remain the Nuremberg precedents, the 1974 consensus definition, and the recommendations of the International Law Commission, UN Charter and the Rome Statute itself. Using past experience as a guide, and adopting techniques that proved successful when the definition of aggression was finally accepted in 1974, it may be possible to reach a new consensus. The technique is to focus on the major concerns still outstanding and to try to find language that moves toward accommodating those divergent views yet is based on terminology that has already been accepted in the foundation-stone instruments.
Arab and African States seek stronger condemnation of foreign domination, annexation or occupation. The United States insists on immunity for acts of humanitarian intervention. Permanent Members of the Security Council refuse to diminish their privileged powers. There is general agreement that somehow the independence of the new Court must be assured. Given sufficient political will, and drafting skill, all of these concerns can surely be met. The attached draft - which does not purport to be the last word - points to a direction that may lead to agreement The clauses shown in italics are drawn verbatim from the existing agreements that have been universally accepted.
The author was a prosecutor at the Nuremberg trials. He received his doctorate in law from the Harvard Law School in 1943, has been a professor of international law and is the author of many books and articles dealing with aggression and an international criminal court.
ATTACHMENT: SUGGESTED COMPROMISE
(1) The Definition of Aggression:
For purposes of this Statute, aggression shall be defined as set forth in General Assembly Resolution 3314 (xxix) on December 14, 1974.
Particular attention is drawn to the reaffirmations contained therein of "the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity," and that "the territory of a State shall not be violated by being the object even temporarily of military occupation taken by another State in contravention of the charter". Furthermore, "any annexation by the use of force of the territory of another state or part thereof" may qualify as an act of aggression. Nothing can prejudice the above rights. Particularly of "peoples under colonial and racist regimes or other forms of alien domination."
(2) Elements of the Crime of Aggression:
1- The perpetrator was a leader or organizer who actively participated in or ordered the planning, preparation, initiation or waging of acts of aggression by a State.
2- The perpetrator occupied a position of such authority or power that the elements of intent and knowledge can reasonably be inferred from the facts and circumstances.
3- The aggression was of sufficient gravity to be comparable, in magnitude, intensity and actual injurious consequences, to be equivalent to a war, whether declared or not.
(3) Role of the Security Council:
No complaint of aggression may be brought under this Statute unless the Security Council has first determined that a State has committed the act of aggression which is the subject of the complaint. Failure of the Council to respond to allegations of aggression within a reasonable time shall not prevent the court from investigating the charges and publishing its findings and recommendations.
Particular attention is drawn to the fact that humanitarian intervention by the use of force without prior authorization by the Security Council shall not constitute an act of aggression if it is shown that the intervention was a last resort after other available means had been exhausted, that the intervention was for purely humanitarian purposes and not motivated by the self-interest of the intervening party, and to the maximum extent possible, was carried out in a manner designed to protect the human rights of all persons concerned.
Particular attention is drawn to the fact that both the Security Council and the Court are bound by article 1 of the United Nations Charter that calls for the suppression of acts of aggression "in conformity with the principles of justice and international law." In determining whether an individual is guilty of the crime of aggression, the Court shall be completely independent in its judgment.
Reply to: A Global Court of Injustice
By Benjamin B. Ferencz
published: January 2001
source: Web Posting
"Fire!" is being shouted in a crowded theater by persons who are trying to stampede the public with misleading and erroneous declarations. Justwatch has forwarded a lengthy commentary by the "American Patriotic Friends Network" that is sharply critical of the efforts to establish an international criminal court competent to try major perpetrators of genocide, crimes against humanity and war crimes. It excoriates President Clinton for signing the Rome treaty on the ICC. It reflects the views of Senator Jesse Helms as well as conservative Americans who strongly oppose the court. It is their constitutional right to do so, but many of the arguments made are completely false and should not be allowed to stand.
The American Academy of Arts and Sciences (founded in 1780,) recently published the results of a very comprehensive study: "The United States and the International Criminal Court." After presenting the views of many outstanding patriots, including US Ambassador David Scheffer, Professors Michael Scharf, Ruth Wedgwood, Bartram S. Brown, Robinson O. Everett (Chief Judge of the Court of Military Appeals), Major General William Nash and other
distinguished experts and scholars, the conclusion was reached by two of the leading lights of the Harvard Law School that signing the treaty would serve the best interests of the United States and its servicemembers.
Silence in the face outrageous calumny might be misinterpreted as acquiescence or cowardice. Many military leaders, including Generals George Lee Butler, Jack Kidd, Admirals Eugene Carroll, and Stansfield Turner, and former Defense Secretary Robert McNamara, are among the countless patriots who have spoken out for the rule of law. Those who seek a more peaceful world should try to correct the misguided views of those who imply that they are authorized to speak for patriotic Americans.
As one who fought as an enlisted man in every campaign in World War II, from the beaches of Normandy to the liberation of the 101st Airborne Division trapped in Bastogne, and a prosecutor who proudly represented the United States at Nuremberg when our government condemned aggression, genocide and crimes against humanity and promised that "never again:" would such atrocities be allowed to go unpunished, I urge all patriotic Americans to study the facts carefully before reaching any conclusions about the international court. All who seek a more humane and peaceful world must be convinced that law is always better than war.
Benjamin B. Ferencz
For Dictators, Only Punishment
By Benjamin B. Ferencz
published: January 2001
source: The New York Times
To the Editor:
In "A World Court That Could Backfire" (Op-Ed, Jan. 15), Stephen D. Krasner argues that an international criminal court should be rejected since the threat of punishment might inhibit genocidal dictators from settling conflicts peacefully. He overlooks the fact that the pending treaty for a world criminal court confirms the right of the Security Council to halt criminal prosecutions when deemed necessary to further peace negotiations.
However imperfect in practice, deterring aggression and crimes against humanity must remain the primary goal. Permitting political considerations to immunize perpetrators shows contempt for their victims and the judicial system.
BENJAMIN B. FERENCZ
Delray Beach, Fla., Jan. 15, 2001
The writer was a Nuremberg war crimes prosecutor.
For Clinton’s Last Act
By Benjamin B. Ferencz and Robert S. McNamara
published: December 2000
source: Op-Ed, The New York Times.
With the stroke of a pen, President Bill Clinton has a last chance to safeguard humankind from genocide, crimes against humanity and the ravages of war itself. He must simply sign a treaty, finalized in Rome in 1998, to create a permanent International Criminal Court.
If he signs the treaty before Dec. 31, the government does not have to ratify the treaty at this time. After that date, any country has to both ratify and sign the treaty to become a member. This is no small consideration, since Senator Jesse Helms, chairman of the Foreign Relations Committee, has promised to block any attempt to ratify the pact.
Why does Mr. Helms object to a permanent international criminal court? He and others are worried that an unchecked international court could infringe on basic American constitutional rights for fair trials. For instance, they want ironclad guarantees that the court would never try American soldiers. Pentagon officials fear that Americans might be falsely accused of crimes, thus inhibiting our humanitarian military missions.
These worries are unfounded. The tribunal of 18 world jurists only have jurisdiction to charge those who commit specific crimes that outrage the international community as a whole. Under the treaty, no one can be convicted without clear proof of intent to commit the illegal act. The prosecutor is subject to judicial and budgetary controls that promise both competence and objectivity.
And most important, each nation retains the primary right to try its own nationals in a fair trial under its own laws. There are some crimes, like sexual slavery and forced pregnancy, that the treaty covers, which are not specifically enunciated in our own country's military laws and manuals. Robinson O. Everett, a former chief judge of the United States Court of Appeals for the Armed Forces, has recommended incorporating these crimes into our federal laws, assuring that any American military personnel charged with a crime could be tried by American courts.
Genocide is universally condemned but there is no universal court competent to try all perpetrators. The Nuremberg war crimes trials, inspired by the United States and affirmed by the United Nations, implied that "never again" would crimes against humanity be allowed to go unpunished.
Today, we have special courts created by the United Nations Security Council that have very limited and retroactive jurisdiction. For instance, war crimes tribunals are now coping with past atrocities in Yugoslavia and Rwanda. But these tribunals are hardly adequate to deter international crimes wherever they occur.
The president must help deter future atrocities. At the United Nations and elsewhere, he and Secretary of State Madeleine Albright have repeatedly called for an international court to carry forward the lessons of Nuremberg. Now, he has a chance to take action. More than 100 nations, including all our NATO allies, have already signed. Some 25 nations have ratified; others are well on the way. The court cannot begin trying cases until at least 60 nations have ratified.
If President Clinton fails to sign the treaty, he will weaken our credibility and moral standing in the world. We will look like a bully who wants to be above the law. If he signs, however, he will reaffirm America's inspiring role as leader of the free world in its search for peace and justice.
Robert S. McNamara Secretary of Defense under Presidents John F. Kennedy and Lyndon B. Johnson. Benjamin B. Ferencz was a prosecutor at the Nuremburg war crimes trials.
Letter to President Clinton
By Benjamin B. Ferencz
published: November 2000
source: Web Posting
November 11, 2000
President William Jefferson Clinton
The White House
Washington, DC 20500
Dear Mr. President:
Over 53 years ago, I was the Chief Prosecutor in a trial brought by the United States in Nuremberg against 22 SS leaders who were convicted of murdering over a million people in cold blood. I fought in every campaign in Europe in World War II and gathered evidence in Nazi death camps. Since then, my life has been dedicated to making this a more humane and peaceful world. On this, "Veteran's Day" I appeal to you as President and Commander-in-Chief, to exercise your constitutional authority by signing the Rome Treaty for the creation of an International Criminal Court (ICC).
I recall how thousands cheered at the Dodd Center in Connecticut in 1995, when you said: "Nuremberg was a crucial first step... Now it falls to our generation to make good on its promise..we have to do it,... we must do it...We have an obligation to carry forward the lessons of Nuremberg. " When you addressed the General Assembly of the United Nations on Sept.22, 1997, you told the world:...: "before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law."
After you sign the treaty, it will be up to your successor to determine whether further measures may be warranted before submission of the treaty to the Senate for its consent before it can be ratified. There will be ample time to debate the details. Your signing now will be an important affirmation that you have not abandoned principles you have so eloquently enunciated. It will help allay fears of small States that feel threatened by misguided Congressional proposals to impose sanctions against any nation that dares to support the ICC. It will uphold the integrity and reputation of our government as a leading champion of the rule of law.
I am mindful and respectful of objections raised by some members of Congress and the Pentagon. As a 1943 Harvard law graduate and author of countless books and articles on this subject (See my web-site,) it is my considered judgment that such fears are exaggerated and misplaced. The treaty has been found acceptable by many of our staunchest allies. A comprehensive American Academy of Arts and Sciences study, including leading U.S. military and academic experts, concluded that failure to sign now "will miss an opportunity of serious dimensions. And the loss will have an impact on U.S. national interests far beyond the work of prosecuting war crimes."
With every good wish,
An Evening with Ben Ferencz in Discussion with Joan Ringelheim
By Benjamin B. Ferencz and Joan Ringelheim
published: October 2000
source: US Holocaust Memorial Museum, Transcript, Washington, D.C., October 5, 2000
Jerry Fowler: Welcome to the United States Holocaust Memorial Museum. My name is Jerry Fowler. I'm the staff director of the Museum's Committee on Conscience. The Committee on Conscience is sponsoring this evening's program. When the President's Commission on the Holocaust, chaired by Elie Weisel, recommended the creation of a memorial to the victims of the Holocaust, they pointed out in their Report to the President that in their deliberations there was no question more urgent or complex than the question of how to prevent the recurrence of the Holocaust or some partial version thereof. They felt very strongly that a memorial unresponsive to the future would also violate the memory of the past. So they recommended as part of the living memorial to the victims of the Holocaust that they envisioned the creation of a Committee on Conscience that would address contemporary genocide and related crimes against humanity. That committee was created, shortly after the Museum opened. It has the mandate to alert the national conscience, influence policy makers, and stimulate worldwide action to confront and work to halt, acts of genocide and related crimes against humanity. Tonight's program is very special for the Committee on Conscience because we will be hearing from a man who, in his life, in some ways, embodies the mission of this institution. Both because he was present at the end of the Holocaust, worked as a chief prosecutor to prosecute those who were responsible for the Holocaust, and in the years since then has devoted his life, as a lawyer, an educator, and an activist, to combating genocide and crimes against humanity. I think this will be a very important evening to hear about the history of the struggle against genocide and crimes against humanity. Before I ask Joan and Ben to come up, there is one thing that I wanted to note: Ben donated his papers to the Museum, for which we are very grateful. When he did that, we obtained a grant from Save America's Treasures to conserve his papers. Save America's Treasures is a project of the White House Millennium Council and the National Trust for Historic Preservation. It's a program focusing on protecting America's threatened cultural treasures including significant documents, works of art, maps, journals, and historic structures, that document and illuminate the history and culture of the United States. It's a public-private partnership and it's been at the center of the White House Millennium Council's efforts to commemorate the year 2000. In addition to the grant that we received to conserve Ben's papers, grants have been awarded for conservation projects of Frank Lloyd Wright's Taliesin in Wisconsin, the Thomas Jefferson papers in the Massachusetts Historical Society, the Ebenezer Baptist Church, which was Martin Luther King's church in Atlanta, Georgia, and Mesa Verde National Park in Colorado. So, that's how important that Ben's papers were considered to be -- they were included in that company as part of Save America's Treasures. Just for my purposes, if his papers are America's treasures, I think, by transference that means that Ben Ferencz is one of America's treasures. So, we're very happy to welcome him to the Holocaust Memorial Museum tonight.
Joan Ringelheim [JR]: In case you don't know, I'm Joan Ringelheim and this is Ben Ferencz.
Ben Ferencz [BF]: I'm the treasure. Don't forget that. He just said so.
JR: The treasure? Oh, the treasure.
BF: The treasure. The treasure. He said I was a treasure.
JR: Oh, I've known that. You watch who is going to take over this evening. When I first talked with Ben in 1994, he told me something, probably within the first fifteen minutes of our talking together. He said his life was divided into three parts, better than Gaul actually. The three parts were the following. The first part was to get the perpetrators and prosecute them. The second part was to help the victims. The third part was to prevent genocide and such crimes from happening again.
I don't know that I've ever met anybody whose life was put together in quite this way. What we're going to try to do tonight, in the next 55 or 60 minutes, before you get a chance to ask questions, is to try to explore all of these parts of Ben's life and his ideas.
Ben was born in 1920 in the Carpathian Mountains of Transylvania. He came here when he was 10 months old. I have no idea what the influence of that was. He grew up in Hell's Kitchen in New York. You'll correct me, if I'm wrong about anything, right?
BF: I wouldn't dare, go right ahead.
JR: Skipping right along, after he left New York, he went to Harvard Law School. He ended up studying with a number of people, but most particularly Professor Sheldon Glueck is that the right way to pronounce it?
JR: Glueck. Who became one of the few experts probably in the world, certainly in the United States, on war crimes, which gave Ben a very particular possibility at the end of the war. He graduated from law school in 1943 and entered the Army. We're not going to talk about his Army career. We're going to go straight to 1944 when you were called up to become part of the War Crimes Branch of the Third Army, right?
JR: Tell me what it is they wanted you to do. Did they know?
BF: Well, the Army had immediately recognized my talent when I entered the Army. Having graduated from the Harvard Law School, and been an expert in criminal law, and having helped the professor write a book, I became a private in the artillery in the supply room.
It took awhile before it began to dawn upon them, that perhaps I might be useful for something else. So they promoted me to corporeal. Then I was assigned to the headquarters of the Third Army. That was General Patton.
I was told that the president had directed that there should be a war crimes program. Warnings had come from Churchill, and from Roosevelt, and from Stalin to the Germans that they would be held accountable for the atrocities which were taking place.
So as we approached Germany, the decision was to create a War Crimes Branch in the Army. Since the Army had never heard of anything like that, they turned to this Harvard Professor and he said, oh, yes, yes. You go find this research assistant of mine. He's out there somewhere. He'll tell you all about it. So they tapped me on the shoulder when I was typing out my supply requisitions, and they sent me to General Patton's headquarters where I was greeted by a colonel who said, we've been directed to set up a War Crimes Branch, what's a war crime?
I said, sir, sit down. You're about to get an education. And so, the war crimes program started in the United States Army. In due course, the next man who was assigned to my unit was Private Jack Nowitz of the infantry. He was a Yale graduate, spoke several languages, and they had hauled him off from building a bridge somewhere. He was covered with mud. He reported to me and he said, sir, I've been directed to report to you. I said, don't call me sir, private. I'm a corporeal. Sit down. We've got to run war crimes for the United States Army. And the way we did that, if you want to know how we did that --
JR: Yes, that was my next question.
BF: Well, I am sorry I anticipated your question. Before we ran into the camps, the most frequent reports were that Allied flyers had been shot down. They were invariably seized by the townspeople in Germany and beaten to death. These were orders from Berlin, to treat the Allied flyers as war criminals. So we had received these reports.
I would get a jeep and Jack Nowitz would get a jeep. I'd say, you cover these cases there and I'll cover these cases here and we meet in three days, come back and report what we've got. I'd go out to the town, find the Burgermeister or whoever was in charge of that, tell him, you're under arrest. I want you to arrest everybody within 100 yards of where this event happened. Bring them in, and line them up against the wall.
They'd do that. They'd say, yes, sir, "Jawohl." Trembling.
It was not only that they had vital fear of me, I happened to have General Patton along. He didn't come on the trip, but the tanks were all around. They'd bring in the people. We'd line them up against the wall and say, now look, everybody here sit down and write exactly what happened. I would first catch one who spoke German and English and say, you're the interpreter. At that time I didn't speak German. I had never studied German. So they would write out what had happened. I would tell them, anybody who lies will be shot. That's what they expected. That's was known as the Ferencz-Miranda Rule. After they'd write it out --
JR: How old were you then?
BF: I was then about 26. No, it was before the war ended, I was 24.
BF: Then I would have them read me what they said. After I read about 10 of them, I knew exactly what had happened, who had killed whom, and when, and why.
I would then have them write it out, swear to it under penalty of death that it was true, tell them they are under house arrest, they are not to leave their home without my permission. I would take off, back to the headquarters, to write up the report, and describe what had happened, and who had done what, and these are the witnesses and names, and these are their addresses.
I suppose some of them are still waiting there because I never got back. The Germans are very obedient. If you find someone still standing in a home in some German town waiting to be released, my apologies. I mean I had other things to do. That's how we would render reports.
Then, along came the more serious things. Those people were eventually put on trial in Dachau Concentration Camp. You've probably never heard of that. I hammered up the first sign, United States Third Army War Crimes Trials, Dachau. They were military commissions. Some Army officers would hear the cases. They would bring in the people whom I had indicated as the perpetrators of the crime, and the witnesses, and have a quick trial. It didn't last more than a day or two usually. And sentence them to something, death or a few years in prison. Some of them were actually executed. Some of them were not. The less said about those trials, the better.
That also covered the concentration camp commanders that we captured and some of the guards. Because when we received reports that we were coming upon strange looking people, wandering on the roads, they were dressed in pajamas, they looked -- they were starving, they were completely bedraggled -- we didn't know the words "concentration camp," at that time. We would come upon a camp and that was an out-camp for one of the concentration camps. Buchenwald, for example, was one of the first camps.
I would get a report at headquarters that this had been seen. I would rush out to the scene, because I knew that what was important was to immediately safeguard the evidence of the crime. You can do that by getting the victims to give testimony while they are able to, catching the criminals if you can, or securing the other evidence which may be available. I came, for example, in an actual case, into the Buchenwald Concentration Camp.
The first thing I did, I rushed to the Schreibstube, the office where the records were kept, and seized all the records. I would tell the colonel in charge of that particular military operation, a divisional commander -- I never carried any insignia of any kind, he didn't know whether I was a general, or a private, or what -- and, I would tell him, I must have immediately 10 soldiers to surround that office. Nobody goes in and nobody goes out without my permission, no document is to be removed.
I would go in and check the documents with the help of the inmates who were running that, and take into possession the important things, such as, the Totenregister, the death registries of all the people who had been killed in that camp, the names of the guards who had been in that camp, the names of camp commanders. With that information, I could again go back to headquarters, type up a report, and say, send out arrest orders to apprehend the following as criminals.
That's the way it was done. One soldier. On my jeep I had written "Immer Allein." I think the picture is probably here in the Holocaust Museum -- which means "always alone." Going out, backed, of course, by the might of the American Army which was already occupying the area, no one challenged me. I had only a .45 pistol on my hip. I was able, then, to collect the vital evidence which became the basis for subsequent trials, not only in Dachau, but later at Nuremberg.
JR: If you'll let me do something now. When I interviewed Ben, I discovered that he sent back a series of letters to his wife, Gertrude. But, he wasn't able to read the letters.
I'm not going to read you the letters. I want to read you a portion of the letters because one of the questions I asked Ben, as a 24 year old, he wasn't just -- I mean the men who went in so-called liberating the camps, had very long term -- there were very long term effects from being there for a few hours. Ben went into camp after camp.
So I asked him what that did to him, as a person. He said that he had sort of an emotional cocoon around him that -- almost an ice wall. I wanted to read you a portion of a letter that you wrote in May -- May 15, 1945. Is that all right?
BF: I don't know. It was my wife's letter. She kept them all in a little shoebox for 50 years with the original envelopes. And that became quite a treasure for the Holocaust Museum.
JR: Right. Absolutely.
BF: Now she's going to reveal some of my secrets.
JR: No secret. No.
BF: Leave out the juicy parts.
JR: I'm not going to do the juicy parts. "I walked through the barracks and saw the living dead." I want you to see if you can get back there to tell people what it was.
JR: Okay. "There were little girls and little boys too. One 14 year old girl had been torn away from her parents a few years ago and had finally ended on the death block where the arrival of the Americans saved her. Her only crime, as well as that of the dozens and dozens of other children, was that she was Jewish. She started to cry, when I asked her where her parents were. And I did not go into it. I saw little infants, only two and three weeks old, who were wrapped in rags, lying in dirt, without food, and with nothing but their wails. The mothers had little hope. They kept asking, 'When will we be allowed to leave?' And I could not answer. There were so many camps. So many thousands of similar unfortunates, that it takes time. And every day is an eternity for them. There were millions of other things I saw and did. But, I can't describe them now, dear. It's horrible and pathetic. I don't even want to think of what the sight of all these things is doing to me."
Do you still feel that way?
BF: Beg your pardon?
JR: Do you still feel that way?
BF: Oh, yes. I very much feel the same way. I didn't know what you were going to read. There were many I'd just as soon not have you read that were quite horrible. But, that gives you a very slight feeling of what it was really like. I had to move from camp to camp because the danger was there that the evidence would be lost or destroyed. For example, I remember trying at the end of the war to go up to Berchtesgaden to catch Hitler. And the 101st Airborne Division got there before me. They had dropped in by parachute from the top. They had wrecked the whole place. It was chaos. The file cabinets were turned upside down, the windows were smashed, everything.
There was nothing there which could serve as evidence of anything. So the idea was to get into the camp as quickly as possible, before guilty people could run away -- usually they would run away, they retreated out of the camp as we came in -- and grab the evidence, and get affidavits from the inmates who were still capable of preparing some kind of credible testimony, which might be useful in a subsequent trial.
You didn't want to hang around in the camps. There was diarrhea. There was dysentery. There were rumors of typhus in the camps. So, it was not a place to stay. You got in. You did your job, moved on to the next camp. We were moving forward so rapidly -- the troops were advancing so rapidly -- that you couldn't stay more than a day or two in the camp. This was while the war was still on.
I was in one of the concentration camps on May Day, the first day of May. The war ended on the 5th -- I didn't know when the war ended. Martin Gilbert, who lectured here recently wrote a book, The Day the War Ended. The truth is that it was moving so fast that I didn't know that the war was over until I was on the road to Vienna from the Mauthausen Concentration Camp and General Kesselring came up to surrender because he was afraid the Russians would come at him. So, it was a very hectic time. You're quite right, that in order to be able to do the job, you must shut off your mind. You must insulate your mind. Otherwise you'd go mad. I tried to do that.
JR: You can't do it now.
BF: Right. Well, of course the trauma remains with you.
JR: Right. Can you talk about some of the revenge killings? There are people who say that there were no revenge killings, but you --
BF: What killings?
JR: Revenge. But, you saw people kill others.
BF: Yes. First of all, most of the inmates were in no condition to seek revenge. You didn't know if they were dead or alive. They were lying in the dirt, naked, not moving. You would walk past them and you would see they'd move. So, they were alive. They were skin and bones. I could hold up a man, who had been a normal man, and with one hand, hose him down. He couldn't have weighed more than 50 pounds. So, these were in no condition to seek revenge. There were amazed to be alive.
Some of those who were in better shape -- and there were, there were not only Jews in the camps, there were Poles, and there were Ukrainians, and there were Russian soldiers who had been captured -- they were quite eager to go out and kill every German they could lay their hands on, if not to seize their home and burn it down when they got through ransacking it.
So, it was a very perilous situation as well. They'd be chasing the SS guards, catching them, beating them to death, burning them alive, shooting them. I saw all of that. They came out and went running into the countryside, so that they had to be rounded up next, and put back again into the camps because there was chaos. They had to be put back again behind barbed wire, until such time as we could care for those who were dying or ill and arrange some way of transporting them back to where they came from or where they would be willing to go.
JR: There's one -- before we go on to the next piece, the Einsatzgruppen piece, there's one scene in a May Day celebration, at Ebensee, I think, a sub-camp of Mauthausen, that was particularly poignant for you.
BF: Yes. I don't remember which camp it was now, but I remember May Day because it was a celebration, the May Day celebration in Europe is the workers' day.
In this particular camp they had a tribune like this set up of three pictures in front. One of Stalin, one of Roosevelt and one of Churchill. No, I think it was Truman by that time. The inmates were celebrating liberation. They were marching. And the Poles marched. And the French marched. And the Belgians marched. And the Norwegians marched. And they were all marched in formation carrying banners celebrating their liberation.
And there was one group that didn't march with the others. And I asked, why aren't they marching? They said, they're the Jews.
So, that even in the concentration camp, among the inmates, all of whom were in peril of their lives, some were kapos that were abusing the others, there was the same sense of discrimination against the Jews. That surprised me. That is undoubtedly the event that you are recalling for me --
BF: -- Of having described it somewhere in an earlier interview. There are some lessons in that too, as to how difficult it is to erase feelings of prejudice and hatred which some people carry with them even in concentration camps.
JR: Could you explain to the audience how it was you got involved in the subsequent Nuremberg trials and, at the same time, briefly explain the difference between the International Military Tribunals that were at Nuremberg and these trials that you were involved in.
BF: I went home after I had been working in the Dachau trials for awhile. The war was over and I was determined to go home. I didn't want to stay in Germany. I had signed up for the war. The war was won. I said goodbye to the Army and I left. They're still looking for me, I think.
But the honorable discharge which they gave me, for some reason I don't know says, soldier discharged on his own affidavit. I smuggled my way across in a ship because my outfit left unexpectedly, while I was on a vacation in Switzerland. The war was over. I never had a pass, other than the one I had made for myself. In any case -- well, that's not a laughing matter. I mean, I was in the supply room I thought it was only fair. And I had an official stamp. I ordered one for the commander, one for the captain, one for me. That seemed to me democratic.
I, of course, used mine to give out passes to all of the other guys when the officers had gone home. In any case, I went home. By sheer coincidence, to show you how these things evolve -- it had nothing to do with my beauty, and my knowledge, and my brains, and my size -- I met a friend of mine on 5th Avenue and 42nd Street in New York, which is probably the most crowded corner in the world. We had been housemates at law school. He was the clerk for Justice Jackson in the U.S. Supreme Court.
He said, well, what are you doing here? I said, oh, I just got back from winning the war, and I said, what are you doing? He said, I'm clerking for Justice Jackson. I said, oh, that must be exciting. He's over there setting up the Nuremberg Trials. He said, yeah, but I'm here. I said, well, I got some experience in that. I've been doing war crimes work too. He said, oh, we need you.
As a result of that chance encounter, one day I got -- shortly thereafter -- a telegram from the Pentagon, saying dear sir -- they had never called me sir in three years in the Army. They said, would you please come to Washington at our expense? We would like to see you. I came to the Pentagon where I was interviewed by Colonel Micky Marcus who had been a West Pointer and he was recruiting people for the Nuremberg Trials.
Well, to make a long story short, I was not going to go back to Nuremberg under any circumstance. However, he made me an offer I couldn't refuse. He said you can go for any period of time you want. You don't have to join the Army. We'll give you the simulated rank of a full colonel. But, we need guys like you. You're experienced. You know the ropes. You know the people. By that time -- you know the language.
I said, okay. I'll take it. I called up my present wife for the last 54 years. I said, how would you like to go to Europe for a honeymoon? She said, oh this is so sudden. She had been waiting ten years. So off we went to Europe intending it to be a honeymoon.
I had no intention of doing anything except getting even with all those lieutenant colonels who had been sticking it to me for three years. However -- it shows you the best laid plans. I was intercepted by another colonel by the name of Telford Taylor. Telford Taylor was on the staff of Justice Jackson.
They were already beginning the trials against Goering and company which most of the public thinks is the only Nuremberg Trial. It was the most prominent and the most important Nuremberg Trial. Justice Jackson was the chief prosecutor for the United States. France, England, and Russia -- the Soviet Union, also had their chief prosecutors. That was the International Military Tribunal where Goering cheated the hangman by committing suicide with a cyanide pill which had been smuggled to him with the help of an American lieutenant who was supposed to be guarding him, from Texas. Anyway.
Taylor said, look, I'm setting up an additional 12 trials. I'd like you to go with me. He said I understand that you are occasionally insubordinate. But, I'd like you to come. I said, I'm not occasionally insubordinate. I'm always insubordinate. I only do what I know is right. I never do what I know is wrong. But, I'll go with you.
So, I went with Taylor and that changed my whole plan. He was an outstanding lawyer. We were law partners after for many years. He was promptly promoted to general. He promoted me to general. So, I had the most meteoric career in the U.S. Army. From sergeant to colonel in a few months, and then to general, and, probably, the shortest general since Napolean Bonaparte. So, there I was with this crackerjack lawyer. He sent me off to Berlin.
He said, look we know approximately whom we want to try, but we need two things. We need the evidence of crime and we need the defendant. If we have one and we don't have the other, we've got nothing. You know how to get the evidence. You've been collecting evidence. Go to Berlin. Set yourself up there. Take whatever staff you need. Bring us the evidence that we need to convict industrialists, doctors for medical experiments, industrialists for running the concentration camps -- for slave labor, the SS generals, the foreign ministers who were involved. Bring us the evidence which will enable us to convict. And off I went to Berlin.
JR: You got to Berlin and you went to -- I'm asking him to tell a story he is slightly reluctant to tell, but it will give you another sense of the way in which Ben is sort of an entrepreneurial person with respect to these issues. When you got there you found a horrible situation.
BF: Berlin was in ruins. We had bombed the hell out of Berlin. And what we didn't bomb the hell out of, the Russians came in and they finished it off. It was very tough fighting all the way to the bunker. I was in the bunker before it was flooded.
Berlin was a mess. There was no housing, everything was destroyed. I was assigned offices in a place called Harnackhaus, which had been at one time a very nice building, but the only thing intact was the basement and I had the basement. The basement had already been bombed out. Some troops had been in there before me. I thought this won't do.
I found on the floor a picture -- I know she wanted me to tell this story because she got it out of me when she interviewed me months ago -- of Harry Truman. It was lying on the floor. One of these, you know, autographed sort of things that you send out when someone makes a five dollar donation to the party, or whatever. I said, well, it wouldn't do, for the President to be lying on the floor. I grabbed one of my aides and I said, Get me a frame for this picture. Another one, I said, I want you go call up the commanding general and tell him I want to see him over here in this office.
So, called up and sure enough the general in charge of Berlin, an artillery or military officer of some kind, I said, I'm over here on a mission for the President of the United States, collecting evidence of war crimes. I'd like you to come over here. There's something important to talk about. He said, yes, sir. Over he came. I had found an old beat up arm chair and I'd put that down and I had an old beat up desk.
I took this nice picture of Harry Truman, which was then framed, before it was framed I wrote on it, to my good friend Benny, from Harry. I put it on the wall. That was my friend Harry Greenberg who would have given me such a picture if he'd had it. I wouldn't forge the President's name. I put that on the wall.
This colonel comes in, or general, I don't remember what he was. I said to him, look, I'm here. We've got to get evidence of war crimes. We've got to send it over to Nuremberg right away. We have big trials coming on. I can't work out of this office. Look at this, everything is destroyed.
He said, yes, sir. Yes, sir. And sure enough, then I got a whole suite of rooms, half a building, in the same place as General Clay. So that was an illustration of what she calls "ingenuity" and the other one called "treasures." You know, if they had court-martialed me, you would have called it something else.
That will give you a feeling of how we got started. Then we began to collect the evidence and some of it turned out to be very important. That's your cue.
JR: First I want you to tell the audience how many months you had to develop evidence for the first trial -- the doctors' trial.
BF: Very little. Very little. I don't remember the precise number of months but we had to get the evidence --
JR: You told me three or four months.
BF: That's about it.
JR: That's very little.
BF: There was public pressure on for additional trials. There were budgetary constraints. We had to get moving.
BF: So we had this staff in Berlin with about 50 people scouring the archives of the German Foreign Ministry, or the German -- other ministries, the Gestapo, the Health Ministries, to see what there was incriminating among those documents. The staff would come back -- mostly they were themselves persecutees, German refugees who knew German. They'd make a summary in English of what was in the particular document. I would get that, screen that, send it down to Nuremberg to lawyers who should have been working on that case. They would say whether they could use it, whether we would send it down to Nuremberg, whether we would explore other avenues, and so on. It was a highly technical operation.
JR: Right. But, then there was a very big and surprising discovery.
BF: Right. Now, you see how we got this teamwork worked out. We did that over salmon sandwiches before. One of the researchers came in, and he said, look what I found. These were what the Germans call lietz ordner, loose leaf folders, reporting on what their activities were in the Soviet Union, as they followed behind the German troops. What they reported is well, Einsatzgruppen.
Einsatzgruppen can't be translated. They were special action groups, and they reported what they did every day. We entered this and this town. Within the first 24 hours, we succeeded in eliminating all the Jews. Or, we succeeded in executing 4,327 persons, including 27 Communist officials and 14 Gypsies. And so on in the next town. I had the name of the officer, the unit, the time, the place. Perfect for a prosecutor. Beautiful. Give me this. I took it. I jumped into a plane. I flew down to Nuremberg.
I said, Telford, we've got another trial. I've got evidence here. I had first tabulated on my own little adding machine, over a million people murdered in cold blood, because they were Jews or Gypsies. They didn't share the faith, or the race of their murderers. And so, they were killed. Where it said the town was cleansed of Jews, I put down one. I didn't know how many there were. It could have been a thousand. It was over a million.
I said to Telford, look, I've got here cold-blooded murder of a million men, women and children. I have the names of the people in charge of the operation. I have the time. I have the place. It's a top-secret report. It was distributed in 100 copies. I had the distribution list. We ought to put them on trial. I'll send out arrest orders to have these guys picked up, according to rank, the highest-ranking first, put them on trial.
He said, we don't have staff. We don't have budget. Our program is already planned. I don't see how we can now put on a new trial. I said, you can't let them go. This is absolute genocide in its purest form. He said, can you do it in addition to your other work? I said, of course. He said, you got it.
So it came about that I became the chief prosecutor for the United States in what was undoubtedly the biggest murder trial in history, and also, quite remarkable in some other ways, if I may say that, now that I'm a national treasure. Otherwise, I wouldn't mention it.
JR: Look out.
BF: I had 22 defendants. There were 3000 men engaged in this operation. The reason that there were only 22 was the very logical, if stupid reason, that I only had 22 seats in the dock. That's the truth.
So, I picked the highest ranking men that I could find. Then I sent out an order to all the POW camps to search for the highest ranking members on my Einsatzgruppen list.
What are the highest ranking members of this list? I picked up six SS generals. Pretty good catch. Six generals in one pot. I had other high ranking officers -- colonels, all the way down until I got the 22. I accused them of murdering over a million people in cold-blooded genocide. I convicted them all. 13 were sentenced to death. The most interesting part is, I was 27 years old and it was my first case. Try to match that one for a treasure. Now, your movie.
JR: What we want to show you now is Ben at the age of 27 giving part of the opening statement at the Einsatzgruppen Trial. We have to get up and go over there because -- you'll see --
BF: If I fall asleep in the dark, somebody please wake me.
SPEAKER (Presiding Judge Michael Musmanno): We are now going to hear the presentation by the prosecution.
BF: This was the tragic fulfillment of a program of intolerance and arrogance. 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.
We shall establish beyond the realm of doubt, facts which before the dark decade of the Third Reich, would have seemed incredible. The record will show that the slaughter committed by these defendants was dictated not by military necessity, but by the supreme perversion of thought -- the Nazi theory of the master race.
We shall show that these deeds of men in uniform, were the methodical execution of long range planning to destroy ethnic, national, political, and religious groups which stood condemned in the Nazi mind. Genocide -- the extermination of whole categories of human beings, was the foremost instrument of the Nazi doctrine.
Sir Hartley Shawcross, the British prosecutor at the International Trials, pointed out that the right of humanitarian intervention on behalf of the rights of man, trampled upon by a state in a manner shocking the sense of mankind, has long been considered to form part of the Law of Nations.
German law professors too, declared this in their writings. The jurisdictional power of every state extends to the punishment of offenses against the Law of Nations, "by whomsoever and wheresoever committed." It is, therefore, wholly fitting for this court to hear these charges of international crime and to adjudge them in the name of civilization.
JR: I should speak into the mike -- you can't hear me? He was 27 years old. I think it's --
BF: I haven't changed a bit, you may have noticed.
JR: I think you were a little quieter.
JR: There was a line missing -- well, there was a lot of the talk missing, but your last two lines, were: "Death was their tool and life their toy. If these men be immune, then law has lost its meaning, and man must live in fear."
BF: May I comment on that?
BF: Because that sentence that she has just read that "life was their tool -- life was their toy and death was their tool, and if these men be immune, then law has lost its meaning, and man must live in fear" -- that was quoted at the United Nations in the first report of the Presiding Justice of the International Criminal Tribunal for Crimes in Yugoslavia set up by the Security Council of the United Nations, in his report, to the General Assembly and the Security Council, about five years ago.
It was by chance that I -- at the United Nations where I spend a great deal time -- picked up this report. I get to the end of the report, and I read the words that I had said over 50 -- just 50 years before. September something 1947, and the report was 50 years after, 1997, September 1997. It was a surprise to me. The Judge who had written that, Judge Cassese of Florence, Italy, hadn't warned me in advance -- and I knew him -- that he was going to use that to finish his report. It was quite touching.
I mention it only because somewhere in the audience here there may be young students who may find some inspiration in that, as I did. That 50 years later, the words that you uttered at a time when there were principles just being developed, that I thought were just on deaf ears. And yet, 50 years later, there they were in an official report and read aloud to all of the nations of the world. I hope that's among your treasured documents.
JR: It is. Ben, you decided to call no witnesses and you closed the prosecution's case in three days --
BF: Yes, I didn't call any witnesses, because witnesses are not very reliable. I could have had thousands of witnesses, the DP camps were full -- the displaced persons camps were full of persons who would have been willing to testify, that any one of those defendants was -- that he saw them murder his mother and his father.
There was a great deal of hatred and a great deal of fear, and they would have believed it. Eli Rosenberg, I believe is here in the audience, at least he was before, he may have run away in desperation. But-- oh, there he is, in the back row. He's hiding. Get close to the exit. That's a good idea Eli.
Those are the problems, that they would come in and testify, and then on cross-examination they would break down. That happened in the Demjanjuk case in Israel. I didn't need it. I had their own reports, their own documents. I broke them down on cross-examination. They denied the authenticity of the reports. But, that didn't hold out. They came in with all kinds of alibis -- that's why the trial lasted much longer than three days -- but I was able to break that down on cross-examinations. So, those were the remarkable features of that trial as well though: not calling any witnesses and finishing in record time -- I mean, the prosecution's case.
JR: I want to ask you to comment on who these men were. And I just wanted to give a sense to the audience of a portion of Ohlendorf who -- I'm forgetting now which unit, was it Einsatzgruppen D --
BF: Einsatzgruppen D, yes.
JR: That he was head of. In cross-examining -- you weren't cross-examining it was attorney Heath who was cross-examining. In answer to Heath, Ohlendorf said, at some point, oh, I didn't shoot anybody. Then he said, there's nothing worse for people than to have to shoot defenseless populations. So Heath then said, if I may be a little facetious, in a grim manner, there is nothing worse than to be shot, either, when you are defenseless. Ohlendorf, You met him --
JR: Afterwards. After he was sentenced --
JR: Is that right? And I don't know whether you met any of the other 21 who were on trial.
BF: I tried to make it a point not to sit personally with any of the defendants before trial. I didn't want to be influenced by any personal peculiarities, or prejudices, or favoritism, or any sentiments. I wanted them to be judged by their own records of their own deeds. On the basis of those facts, and those facts alone, they were either to be condemned or released. They were condemned. The only time I spoke to Ohlendorf was when he was in the Death House. He was the only defendant with whom I spoke under those circumstances.
I went down -- the courtroom there is built right on top of the jail. The prisoners are brought up in a small elevator, into the courtroom. I was in the courtroom doing a television show for Danish television a few weeks ago. I stood on the same spot that you saw in the film here. I was asked questions as she is asking me now about the trial, and so on. I also recounted how Ohlendorf had come up, out of the basement, with the earphones on, like all of the other defendants, and looked at the tribunal right ahead of him, and he heard, "for the crimes of which you have been convicted, this tribunal sentences you to death by hanging." Bow, then back, and step into the little elevator, and drop down into the basement.
I went down to see him after he was sentenced to death. He had admitted killing 90,000 people -- 90,000 people. That's a lot of people. He challenged whether the 90,000 figure was accurate.
I said, why?
He said, well because some of the men were bragging about the body count, they wanted it to be more. It was not that they objected to what they were doing. They were proud of what they were doing and tried to make the figures even higher. He -- and the same with the other defendants -- showed no remorse whatsoever. They were glad of what they did. They made it clear they would do it again. That mentality which exists in many other places and many other countries. It exists all over the world. That may help explain why I went on to a broader view of what I would have to do with my life if I was going to try to prevent another Holocaust.
JR: I have other questions. But, because of time, let's talk some about another issue that's very contemporary but, at the time when you were doing it, was not something anybody had done -- namely restitution, helping the victims.
BF: There were several phases as you pointed out at the beginning of trying to deal with this type of problem which is really a horrendous problem. Warfare itself is a horrendous problem. First you must stop the killing. Stop the war. Stop the war.
Then you bring to justice those who are responsible for the war, those who committed aggression and crimes against humanity, and genocide, and major war crimes. Then you try to do something for the victims. People always forget the victim. It's not just enough to punish the criminals, that makes good drama. But, what about the victims? You have to do something for the victims.
I was much involved in that. I didn't initiate it. I must say I was still prosecuting when I was called to Paris when I was called to Paris by the American Joint Distribution Committee, the largest Jewish relief agency.
I was talking all this morning with the people here in Washington who are writing our book on that for the President's Commission on Restitution. In Paris, they said the military government, the U.S. Government had just passed a law that the property which had been taken from Jews who were murdered, should not remain in the hands of the German government, which normally happens if there are no heirs, but it should go to a charitable organization and be used for the benefit of the survivors. That law had been passed. The head of the Joint, as this charitable agency is called, felt that I should take on the job of trying to find the heir-less Jewish property and get it back and dispose of it and use the proceeds for the benefit of those survivors who had just come out of the camps.
I was persuaded to do that, although I was eager to go home, and so was my wife. I took it on. Well, to make a long story short, that began to grow. There the question was, first of all, how do you find it? You also had there a three month deadline. General Clay who was the commanding officer of the occupied American zone -- I asked him to extend the law, he said he didn't want to because he wanted to get this program over with as quickly as possible. The United States had other priorities in Germany. This was a thorn in his side, having all the DPs in the camps engaging in all kinds of activities -- hard to control.
I said, all right. I'll try to get it done in that time frame. I borrowed money from the military government using some of my old Army techniques, and --which we shall not go into or I'll lose my treasure status -- the treasurer will get after me -- and, anyway, I borrowed enough money to do the job. Hired immediately a big staff. Worked 24 hours a day. Three eight hour shifts, three guys, to file the claims. We claimed over 167,000 pieces of property in the American zone alone. Then began the process of recovering that property. Very complicated. It's not that you knock on somebody's door and say, you're occupying a Jewish house please get out. You can say that. But, he says, what do you mean? The owner, was Morris Cohen. He was my dearest friend. I gave him 100,000 marks for the house. It wasn't worth more than 50,000, but he used the money to get away. He sent me a postcard when he finally got to Australia.
Where have you got it? Well, I lost it, of course. But you're not going to -- who are you to come and take my house? I put on a new roof. The boiler was leaking. I paid off the mortgage.
It was one very, very tough business. We had to go through all the German courts. We first filed with an agency. If we didn't like that decision you filed with the first court, second court, third court, German Supreme Court, Constitutional Court. These difficult cases -- legal problems of all kinds -- which I won't bore you with, took years and years to accomplish. Eventually, of course, we succeeded in recovering substantial amounts of the unclaimed or heir-less property, and that was the first phase of the program.
But, much more important than that was what do you do for the victims who didn't have property? Those who came out with nothing but the tattoo on their arms, and their health broken, and their family gone. We had a big conference in The Hague in 1951 between representatives of the West Germany government, the state of Israel, and a consortium of Jewish organizations that I represented as counsel. The leading Jewish organizations outside of Israel. We negotiated what became known as the Reparations Treaty.
There were three parts of that treaty. One -- the most important part-- called Protocol Number One, was a whole list of laws which the Germans promised to pass to provide compensation for the surviving individual victims. For example, time spent in a concentration camp. That's unlawful imprisonment. That's a form of injury for which the injured party is entitled to compensation in every civilized society. Damages to his health. People were permanently disabled. Similar losses of that kind had to be compensated. There was a bulk payment to the state of Israel for having received the refugees from Germany and had borne the costs of incorporating them. There were some payments to the Claims Conference for Relief Activities, this consortium of organizations outside of Israel.
So, those were the three facets of that program, which, when I left Germany in 1956 -- I had launched that program; it was a big operation, engaging offices all around the world -- the Germans had paid out over 100 billion marks. That's over 50 billion dollars. There is no Nazi victim in the West who is not a beneficiary of that program. In addition to that, you needed someone to help the survivors themselves. They weren't going to go to German lawyers to do this. They didn't know where to begin. They needed help.
So, we set up the biggest legal aid society in the world, I'm sure, with offices in 19 countries, offices in every major city in Germany, handling hundreds of thousands of claims on a contingent fee basis, which was a modest fee -- just enough to cover our expenses. As a result of that program too, hundreds of thousands of beneficiaries, who don't even know my name, which I'm glad about, and don't know that the organizations exist, were helped.
So, we had all of these facets of the program. Let me add one point, because I'm going to jump back 50 years beyond. Those principles at that time had no precedents. People had been persecuted for ages. No one ever compensated them, although it is a principle of law, which I learned as a student. That is, if you injure someone, you owe him something. You compensate him to try to rehabilitate him, to reinstate him where he would have been had you not injured him. That's an ordinary principle of law I learned at Harvard. I didn't learn it in Germany. It didn't apply only to Germany. That was the principle.
But at that time, individuals had no such rights. An individual could only claim through his government. International law dealt only with law between states, and the individual had nothing to say. We broke that barrier because we should have broken that barrier and gave the individual his own rights, helped by the societies that I set up.
50 years later, that was two years ago, nations signed a statute for the creation of an International Criminal Court, which now occupies most of my time, trying to get that going. They wrote into the law, as a provision of law, that victims of genocide and crimes against humanity, and such crimes, are entitled to restitution, compensation and rehabilitation, as a matter of law. That has been accepted by over a hundred nations now. We are well on the way to having that accepted now, as a firm principle of international law, as well as justice. The point of the story simply is, that you begin by doing something which looks impossible, which is very difficult, for which you have no precedent, and you do it. And it's right. Eventually the world catches up with you, if you live that long. I'm only 80 years old. I'm still working on it.
JR: Let's talk some about the International Criminal Court and your work. But, I want to precede it -- maybe, it's not preceding it, but sort of part of the process. When you think about what happened at the subsequent Nuremberg Trials and the Nuremberg Trial, I'm wondering how you distinguish between finding justice in the world and finding truth in the world. What is the difference between working -- if there is a difference, or should they be done in tandem -- between having an International Criminal Court and having truth and reconciliation commissions?
BF: Now, she's starting with tough questions. But, that's all right. If you're still awake --
JR: I work my way up.
BF: Okay, fine. If you're still awake, you can work your way out. But, I'll try to answer the question. What's the difference between, you know, fighting for truth and justice, and law -- and international law on the one hand, and is there a role for truth and reconciliation commissions where you get peace, rather than going through the legal processes of justice?
Let me back up a little bit and give you the frame of reference. Going back picking up the thread which we left before. Nuremberg laid a foundation of law. Part of it you have quoted in that brief film, or I quoted it. That was, if certain crimes are so terrible that the world has got to stop committing those crimes because it cannot survive those crimes being repeated, as Justice Jackson made clear.
That was first of all war-making itself. A crime against peace. Aggressive war. War is itself the worst of all crimes. Because in a war, all the other crimes are committed. That spawns all of the other crimes. The crimes against humanity: the rapes, the pillage, the killing of the children and all that. That comes out of war. Nuremberg held that war making was no longer a national right. It was an international crime for which those responsible, the leaders responsible -- I'm not talking about the common soldier who goes out and fights -- I'm talking about those who plan and perpetrate the aggressive war, will be held to account in a court of law. That was the most important lesson which came out of Nuremberg. As you well know, it was ignored after Nuremberg. We've had a hundred wars since then. Another hundred million people killed.
The second point that came out of Nuremberg was that crimes against humanity, crimes which shock the conscience of mankind, like genocide, are so horrendous, that the whole world has a right to stop them. Never again, will we allow such crimes to be committed. They are being committed and they were committed. So I was trying to build on these Nuremberg foundations. I worked at this very hard.
I wrote books and lectures and articles and became a professor of international law, and lobbied at the United Nations. All my books which were very nice books -- my wife read them. I don't know if anybody else read them. But they're over here in the Holocaust Library. If anybody really gets clearly very desperate some day and can't sleep, they've got some books over here. I've got lots of books. The world paid no attention, no attention at all. They went around killing as usual. It's most unfortunate.
Slowly, I began to see an influence. Things began to change. It took even more horrible events to bring about change. We had Saddam Hussein who committed every crime in the book. I would have prosecuted him in one day. One day, I would have rested my case. He had such a clear-cut case: aggression, crimes against humanity, poison gas, killing his own minority, everything in the book.
How do they respond? We punished his people some more and we left him alone. I wrote articles that cried over that one.
Finally, they raped ten thousand women, Muslim women, in Yugoslavia. I don't mean finally that I was waiting for that. It was a bloody shame. But the world had to do something. We weren't ready to send in the troops to stop it from happening because we had just been embarrassed in Somalia.
So, we decided to set up an International Criminal Court. I wrote a two volume book on an International Criminal Court, told them how to do it. They dusted off the books and they came off the shelves and thirty days later, we have now, the International Criminal Tribunal for Crimes Committed in Yugoslavia after 1991. It's very limited jurisdiction, but it's a beginning. And that court is functioning. The first prosecutor there was Judge Goldstone of South Africa, a human rights activist, who was here at the Holocaust Museum very recently.
JR: Um-hum. I believe so.
BF: We're in regular touch. So we're beginning to move on that.
And then another terrible thing happened, a very terrible thing. This government and this world can be ashamed, ashamed. Half a million people to 800,000 people were butchered in Rwanda. Black people killed by black people. The Hutu were killing the Tutsi. They came out with clubs and machetes and they murdered men, women, and children -- everybody they could reach.
The world stood by and let it happen. They knew it was going to happen. It was in the cards. The president, President Clinton, went down to Rwanda and apologized for not having acted. Boutros-Ghali and Kofi Annan apologized for having let that happen. So, the world knew it was going to happen. It's a disgrace to our humanity, a disgrace to our world organization, it's a disgrace to our governments, to our people, to allow such a thing to happen in the twentieth century. But we did set up a court again, based on the precedent we had in Yugoslavia, and some people are being tried there, and convicted of genocide for the first time.
I knew René Cassin who invented the Universal Declaration of Human Rights and Raphael Lemkin who invented the word "genocide." So, I see these steps forward. They are slow. They are inadequate. But they are nevertheless steps forward. It tells me that even if you seem to be idealistic, and a dreamer, and maybe on the wrong side, and most people don't agree with you. Keep pushing. Keep pushing. Eventually it begins to break through. So I come to the International Criminal Court problem.
JR: So, tell me about the creation of the International Criminal Court and what that means.
BF: Well, I was suggesting that to set up special ad hoc tribunals by the Security Council of the United Nations is not good enough. That's not what Nuremberg had in mind. Nuremberg had in mind that we were laying down principles of law which would govern everybody including the United States.
Justice Jackson put it very well. He said, to pass these defendants a poisoned chalice is to put it to our own lips as well. The law we lay down here today is the law by which we will be judged tomorrow. The law was that war-making was a crime. Genocide was a crime. Crimes against humanity were not tolerable. Major war crimes were not tolerable. So, finally, with much pressure, and I wrote a book on the International Criminal Court, as well, the nations at the United Nations began to talk about it seriously.
After we had set up these ad hoc temporary tribunals. They couldn't go around setting up temporary tribunals for Burundi and for Pol Pot, and all around, it was too ridiculous. They began to talk about an International Criminal Court and the idea caught on.
Two years ago in Rome I was there, and I addressed the entire assembly -- it was very unusual they allowed it -- I don't represent anybody. Nobody pays me. Because they knew me, they gave me the privilege of addressing the entire group. I called upon them to honor the principles of Nuremberg and to create a permanent International Criminal Court condemning aggression and crimes against humanity and war crimes. I ended that speech with saying, "the place to act is here and the time to act is now." And lo and behold, they agreed. Over a hundred nations signed the treaty for the creation of a permanent International Criminal Court. We need 60 ratifications before it can go into effect.
The United States has not signed. The reason the United States has not signed is because they want an exclusion. They don't want any American soldiers to be subject to the jurisdiction of that court. The argument they make is that American soldiers have to engage in humanitarian interventions and they don't want to be harassed by foreign governments possibly accusing them of crimes that will interfere with their mission. Therefore the United States is not ready to accept what at Nuremberg we said everybody in the world has to accept. That's where we stand at the moment with that Court. The Court is in the process of formation.
I will be at the United Nations in a few days. I was there the day before yesterday. It's moving forward very rapidly now. We hope to create such a court, with or without the United States. I would like to see the United States part of it. All of the European Community is on board. All of our allies recognize the time has come for the law to take a step forward.
Someone here asked me a question, what can we do to help in that? At the moment, there's a political campaign going on in this country. It's crazy time. You can't do anything. They're going through making all their prepared speeches, whatever they think you want to hear. But, when this campaign is over and we have a new president -- I don't care what his party is -- that's the time to tell the President of the United States, "sign the treaty." You're not bound by signing it, except not to sabotage it. It needs ratification by two-thirds of the Senate. Senator Jesse Helms, who is chairman of the Foreign Relations Committee has indicated, or said, specifically, over his dead body. He says, this will be "dead on arrival."
When I tell some students when I lecture that Senator Helms says it will be over his dead body that this court gets created, the first question I get from the audience is, how old is Senator Helms? I don't know exactly how old he is.
But there are people with that point of view everywhere. The question for you is where do you stand? Where do you stand? Do you stand for a world as we have it, a realist world, with the killing, with the rapes, with the murders? If you do, what are you doing here? Go home. Go listen to the debates, watch the ball game.
If you believe it is possible to have a more humane world, what we were fighting for in Nuremberg, and what I'm still fighting for, then you've got to join the fight. Everybody can do something. Write a letter to the President. Call him up. Talk to your neighbor. Talk to your friends. Talk to your enemies. Talk to an audience at the Holocaust Museum. Do whatever you can. That's what I'm trying to do. I don't know if we'll succeed, but somebody will send me an e-mail. Wherever I go, I leave my e-mail address. And I hope it will be for a more peaceful and humane world.
JR: It seems like the perfect ending. If you remember you were given 3 by 5 cards on which you can put down questions. And someone is going to come down both aisles to collect them. While you're doing that, Ben, you want to talk about McCloy for a second?
BF: Whatever you want. Let them ask me a question, I'll answer.
JR: A lot of people think that McCloy did a horrible thing in not keeping the death sentences of some of the Einsatzgruppen defendants. Yes? You have a somewhat different view of what he did.
BF: Yes. For those of you in the back row who may not have heard the question, the question was whether John McCloy did a horrible thing in not carrying out the execution of some of the 13 defendants in the Einsatzgruppen who were sentenced to death?
No, I don't think it's a horrible thing. You can't talk of commutation of a death sentence as a horrible thing. People were not turned loose. They were detained, those who were sentenced to death, in prison for a long time. Not long enough, perhaps. But, for a while.
I knew John McCloy. He was the high commissioner for Germany. He was, in my opinion, a very fine man. He was most helpful on the restitution program. I don't recall he ever turned me down on anything and we had many problems. He was also criticized for not bombing the rail lines at Auschwitz. He was then assistant secretary of war and had some position, although he was not the key activist on that question.
He assured me it was Ben Rosenman, the Jewish advisor to President Roosevelt, who was the key player in that decision. And on that one, he noted, correctly I think, that bombing rail lines is not a very serious damage because they can bring up another railroad train with new rails on it and in a few hours trains are rolling again. And there's always a danger in dropping bombs -- as we discovered when we hit a Chinese Embassy recently -- that the bombs won't exactly go where you want them to go. I don't care what kind of "smart bombs" they call them. They have some dumb people who are dropping them. If they hit the concentration camp and killed the inmates there would be quite a number of repercussions. So he decided -- he joined with those who decided it would be not a useful thing to do.
As far as his clemency action -- he did execute some -- or affirmed the execution of some of the prisoners. Which meant that it was not a political decision. Because if he wanted to favor -- curry favor with the Germans, he would have accepted the recommendation of his clemency panel, which had been set up, including Judge Peck of New York, a very respected Judge, who recommended various acts of clemency. McCloy was harsher than his clemency commission and, also did execute some despite the appeals from some "good Germans" or anti-Nazi -- the church groups and so on, who said please, it's an inhumane thing to do, we should not have a death penalty.
In fact we have no death penalty in Europe and the International Criminal Tribunal for Yugoslavia or Rwanda, or the planned International Criminal Court which we're talking about, has no death penalty. It's not considered a humane thing to execute people. I didn't ask for the death penalty in the Einsatzgruppen case, not because I didn't think they deserved it. The deserved it. They deserved it in spades. But I didn't think it was very meaningful to try to balance the lives of a million people butchered in cold blood with the lives of 22 defendants, even if you chopped them up in pieces. That something more significant had to come out of that trial and out of that loss, that those lives would not have been lost in vain. That was a new rule of law, a rule of law which would protect all of the minorities, of whatever persuasion and whatever color, so that all human beings could live in peace and dignity, regardless of their race or creed. That was the plea you heard part of in the opening of that case and it's a plea that I'm still making today.
JR: Okay. Here's the first question from the audience. This is a very contemporary question. Do you think that Milosevic should be granted or guaranteed immunity if he steps down peacefully?
BF: That's your question before. That was the question about truth commissions and we have that situation in various parts of the world. In Haiti for example, we had generals there who had committed war crimes, and so we said, how about leaving town boys? They said, what are we going to live on? And we said, well, you have a little house in Miami you paid $50,000 for, we'll give you a million dollars for the house, get out of town. We got a new man coming in. And he said, okay. Under those conditions he left, without trial.
In South Africa, that was quite effective, in fact, because the country was in turmoil. Revolution taking place. Mandela really alone couldn't do it, he needed help. Judge Goldstone, who was active there at that time, felt that you ought to bargain away, and make some kind of a deal whereby those who might have been subject to war crimes trials, if we had a court, we have none with that jurisdiction, would be eased out of office, in exchange for some benefit, such as not trying them, or threatening to try them. And it worked.
If you're asking my opinion, I'm absolutely against it. You cannot trade justice for law. You cannot destroy the law in the hope you will have a peaceful society after that. If you do that, the victims will always feel no justice has been done. Their feeling of vengeance, of not being recognized, will remain. The hatred will remain. The war will break out again. It will not work.
Besides it's unjust. People should know in advance, if they're going to be deterred at all, that they will be held to account. They are learning that lesson. Mr. Pinochet, even if he walks free today, has learned that lesson. He went to England. Pretty soon he couldn't leave town. Every dictator today is talking to his travel agent, where can I go?
So, the world is getting to be a more difficult place for them. We'll track them down. I believe that we owe it to the victims of the past, to their memory, and to the future, to make it clear that anyone who commits the types of crimes that I've described for you, which are still going on in the world today, will be hunted down, wherever he is, and he will be brought to justice, whatever it takes.
JR: The language that you use which is "more than vengeance," which is very interesting to me, that prosecuting the perpetrators recognizes those who are victimized, it's a kind of --
BF: It's necessary for their rehabilitation. They must know that the world cares. If they know nobody cares, what can you expect of them?
JR: Okay. Next question. Why of all the 22 defendants, did you go down and visit Ohlendorf? Why him?
BF: I visited Ohlendorf because first of all he was my lead defendant. The case was Ohlendorf, et al. Secondly, he was relatively honest. He finally conceded that his unit had -- the unit under his direct command -- had murdered 90,000 people. I had generals, SS generals there, who said, "Was, Juden erschossen? Das höre ich zum ersten mal." What, Jews were shot? I hear that for the first time.
I can assure you, my temptation was to gouge out their eyes. I had to hold myself back in order not to do that. These were not defendants I cared to talk to. They were sentenced to death and I hoped they were executed.
So, Ohlendorf was a peculiar man. He was the father of five children. Like most of my defendants, he was a well-educated man. I tried to pick only those leaders who would be held responsible. I wasn't concerned about the poor Joe who was down there machine gunning people because they told him, that's what you've got to do to save Germany. I wasn't concerned about him. The Germans could handle him on their own later. And so, I picked people who were well educated. Many of them had doctorates in law as well. Let me tell you --
JR: He did.
BF: One about Dr. Rasch. Have I got time for a Dr. Rasch comment?
BF: I had one defendant by the name of Dr. Dr. Rasch. I being an ignorant little guy from Transylvania, I never heard of people Dr. Dr. I thought somebody was stuttering. Two doctorates. And Dr. Dr. Rasch was the biggest mass murderer I ever heard of. He did the Babi Yar job. 33,771 Jews killed in two days. Imagine that. Over 50,000 people murdered in a day. What does it take for your machine gunners dropping them into a ditch outside of Kiev and covering up the whole mound. He did that job. And his commander there was Blobel. I remember the name, the beard.
Anyway one day Rasch's lawyer came into see me. He said, my client can't stand trial. And I said, why not? He said, he's sick. I said, what has he got? He said, he's got Parkinson's disease. I said, what's Parkinson's disease? He said, he's shaking. I said, If I killed that many people, I'd be shaking too. I said, is he breathing? He said, Yes, he's breathing. I said, If he's breathing, I'm going to indict the son-of-a- bitch.
I brought him in on a stretcher. I have that picture. It's in your Museum. Of two GI's carrying this German, wrapped up in a GI blanket, bringing him to the judge to plead to the indictment. The judge asked him, Are you able to plead to the indictment? Have you received a copy 30 days in advance?
Yes, we were absolutely fair to the defendants. We were outnumbered by the defense counsel 4-1 or more. And how do you plead? He said, Not Guilty. All right. We'll stand trial. But, I'll tell you, you can't trust some of these guys. Before the trial could start, he died. That's the end of the story.
JR: You didn't tell them what Ohlendorf said to you when you went down there.
BF: I said to Ohlendorf, Herr Ohlendorf, is there anything I can do for you? These will be your last days. He had five children. I thought, he'll say -- Tell my wife I love her, or tell my kids I tried. Tell me to do some human act, you know, that I would be glad to do as a human favor even for a mass murderer like him. Because he was an intelligent man. He was acting according to his belief in what was right. He was an idealist in his own way. I didn't share his ideals. Maybe because I would have been a victim of them, but nevertheless, I didn't share them.
And so I put this question to him. We were sitting in a little cell. He was guarded. There was the plate glass between us with little holes in it. Guards standing next to him ready to wack him on the head if anything happened. He looked at me and he said, the Jews in America will suffer for what you have done to me. I looked at him. I stood up.
I said, goodbye, Mr. Ohlendorf. And that was the end of that conversation. And I never saw him again. He is dead.
JR: What happened, insofar as you know, to the other Einsatzgruppen men who were shooting Jews?
BF: Four of them were executed. Many of the others got life sentences and after, oh, another five or six years, they were released. It was not a repudiation of the Nuremberg Trials, as is commonly understood. It was not on appeal. It was an act of clemency, supposedly, because they had served whatever time was reasonable. They were treated well in prison. Some of them came out, like the industrialists, to champagne parties, and went back, and became important German leaders again. Perhaps, the richest in Germany. Mr. Flick, for example. And the lessons we tried to teach at Nuremberg were forgotten. That's what happened.
JR: Didn't Germany try some of the other Einsatzgruppen killers?
BF: Germany had their own trials, at Ludwigsberg, the Zentralstelle, the central office for German crimes, in which they went through the rosters of the criminals. Most of them were not charged at all because the statute of limitations had expired, except for those who were directly involved in murder. There were some trials.
I appeared as a witness in one of the trials -- not in Ludwigsberg but in one of the other cities nearby. Some of them were sentenced mildly to prison terms. Most of them were not tried at all or released. One of my Einsatzgruppen defendants I heard, years later, was practicing law somewhere in Germany.
JR: What standards did you apply in deciding not to prosecute a person who had committed a war crime? Did you ever do that?
BF: That was an easy question. The question was what standards did I apply not to prosecute? I didn't -- we didn't decide not to prosecute. We had a limited goal. We had only a sampling. We never set out to try all the German war criminals. We had 8 million Nazi Party files to give you some idea of the magnitude.
There were thousands of SS files. I think that Mr. Marlowe is here and he was later in charge of the Berlin Document Center which I was working on during the war, where we had these 8 or 9 million Nazi Party files. So, the decision was never to try more than a sampling. We were trying to demonstrate that you couldn't run that kind of a killing machine without the assistance of all of these phases of society: the industrialists, the lawyers, the judges, the military, the SS, Foreign Office -- they all had to conspire together to commit these types of crimes.
It would have been quite impossible, physically and financially, for the United States to do anything else. So my own choice was to take the highest ranking people -- 22 defendants was the limit. We had only 22 seats. That's it. Number 23 was goodbye, Charlie. You're saved. Let the Germans try you or not try you. It wasn't comprehensive justice. It was a beginning.
We were trying to set standards, and lay a foundation, and establish the truth, which is very important. Because there are still deniers. That's why this Museum is so important. The deniers can't come here and deny because the evidence is here in spades. If they will come here, they will see it. They will be ashamed, I hope, to pretend that it didn't happen. They don't say that in my presence.
JR: What do they -- what do you do?
BF: They don't dare. I don't have to do.
JR: Was there any political pressure to let war criminals trade information for their freedom in the cases that you were dealing with?
BF: No. There was no pressure at all to have them trade anything for their freedom. When one day Ohlendorf's counselor came to see me and he said, I want to tell you something. I said, what is it? He said, you know Ohlendorf was at one time head of their security service. I said, Yes, I know that. And he said, well, he has information that Martin Bormann -- who had been sentenced in absentia and who had disappeared, and was number two man to Hitler -- was a Russian agent. I said, so? He said, well, well, what do you think about that? I said, So what? And that was the end of the conversation. He wanted to sucker me into making a deal with Ohlendorf and we'll tell you where Bormann may be hiding. I wasn't open to any discussions. That was the end of the discussion. So.
JR: Can you prosecute war criminals or war crimes without defeating the perpetrators in war?
BF: I hope so. I hope the time will come when new governments will come into office who will try, or turn over, the perpetrators to an international court. It would be better to have an international court than the national court try them because the national court has usually seized power, after somebody else has been in office.
It's inclined to be even rougher in their sense of justice than we were in the early days. It would be better to have an international court. But, you've got to have the courage to seize the perpetrators. It's quite outrageous that we create a court to deal with the crimes in Yugoslavia, and, then we indict the responsible people, and NATO is afraid to arrest them because somebody might get hurt. I mean, I like the notion, invented, I think, by Colin Powell, who lived in the Bronx where I came from -- that you don't send a soldier in harm's way. I wish they had invented it before when I was in the Army.
But, how are you going to catch criminals that way? A police department that says, we're not going to go out and make arrests because the criminals might shoot at us, wouldn't be a very useful police department. That's what we've got. We've got NATO troops, in the whole country -- thousands of them. We have bombs, smart bombs, intelligent bombs, zip bombs, laser bombs, everything. And these guys are walking around, enjoying high office. Nobody does anything.
Saddam Hussein is thumbing his nose at the world community. Year, after year, after year. The only response is we make his people suffer in the ridiculous hope that they're going to overthrow him. They haven't got the strength to overthrow him. He'll kill them all before he budges. We haven't recognized that.
So, we still are an emerging international society which lacks the fundamental components of clear laws, and courts with authority to deal with the question, and a system of effective enforcement. Those are the three components of every civilized society. In international law, all three of those components are like a Swiss cheese. They're full of holes. But don't worry, I'm working on it.
JR: Is the United Nations, as it is structured today, incapable of ending genocide, or capable of ending genocide?
BF: The United Nations today is not capable of doing anything other than what its members decide they want to do. The United Nations is on mission impossible, and deliberately created that way under the leadership of the United States which was the principal moving party, here at Dumbarton Oaks where they drew up the charter for the United Nations which was only slightly modified. If you set up an organization which has no budget, you're dependent upon contributions, which you cannot enforce as we know.
The United States is the biggest debtor. It doesn't pay its debts. It has no legislative capacity. It has no army, although it was called for by the Charter of the United Nations. How is it going to function or do anything seriously without the will of its member states? So, don't blame the United Nations. You blame the member states, who are the United Nations. You blame particularly those nations which are powerful enough to do something, and don't do it. I'm ashamed to say that our government is in the lead among those nations in many respects.
JR: What is the International Criminal Court's position on addressing past genocide with regard to retribution? Or, maybe that means --
BF: I wish there were an International Criminal Court but there is none. So, there's no problem in that --
JR: If there were one?
BF: If there were one. The present statute of the International Criminal Tribunal, which is being negotiated now at the United Nations -- which more than 100 nations have already signed -- does not have any retroactivity at all.
So, the arguments being made, they are going to try us for Vietnam, they're going us for that, or they're going to try this. Nonsense. They cannot try them. It's outside the jurisdiction of the court. There are many arguments made against this court by people who don't know what the court is all about, or never looked at the statute, and don't care. The statute is not unconstitutional.
There was recently a study made by the American Academy of Arts and Sciences -- one of our oldest and most established institutions in the United States and in the world, it was founded in 1780 -- and they brought together the leading experts in this country from academia and from the Army as well. They had one major general, they had the Chief Judge of the Court of Military Appeals. They had experts from Yale, from Harvard, from the leading universities, asking the question: Is it in the interests of the United States to support this Tribunal. The conclusion was written by two Harvard professors - Anne Marie Slaughter of Harvard, as well as Abram Chayes who died a few months ago -- and their conclusion, which I have with me in my bag for those who are interested, was unequivocally clear.
It's in the long-term security interest of the United States to support this Tribunal, and to create it as quickly as possible. Because our reputation in the world is part of what we are losing by the stance we are now taking, by raising arguments which are not persuasive: about its constitutionality, and its threatening us for past deeds, and its hindrance of our humanitarian activities, and that our soldiers are threatened by this Tribunal. All those arguments are false arguments. Absolutely false. Here all these scholars have responded to each of those arguments in a book which just came out, sponsored by the Academy of Arts and Sciences. This is something which we should take up with the President as soon as the presidential elections are over and hope that at least he will sign the treaty for an international court.
(Whereupon, the PROCEEDINGS were adjourned.)
Misguided Fears about the International Criminal Court
By Benjamin B. Ferencz
published: June 2000
source: New Jersey Law Journal
After the horrors of World War II, our government inspired the world by its proclamations at the Nuremberg trials that never again would aggression, crimes against humanity such as genocide or major war crimes go unpunished.
Yet today, powerful conservative American voices threaten to sabotage the new international criminal court now being created to uphold the Nuremberg principles. Legislation introduced by Republican leaders on July 14 would bar UN cooperation with the proposed war crimes tribunal that has been endorsed by the vast majority of nations including many of our strongest allies.
Those who oppose the court insist that the UN military must be exempt from prosecution -- that somehow the effectiveness of American humanitarian military interventions would be hampered if the new court begins functioning.
Such fears are unfounded and undermine America's credibility and security.
UN Supreme Court Justice Robert M. Jackson, our chief representative at Nuremberg, and his successor General Telford Taylor, made plain that law must apply equally to everyone. "To pass these defendants a poisoned chalice," warned Jackson, "is to put it to our own lips as well." The innocent need never fear the rule of law. Surely, the Pentagon does not deliberately engage in activities that it knows to be criminal.
Criminal intent must be proved before guilt can be established. If international laws are ambiguous, they should be clarified by the international community. Appearing as a bully that wants to be above the law diminishes rather than enhances our influence. Without an international court operating under rules established by the world community, captives are at the mercy of their captors. Binding law offers a protective shield to all who are in military service.
It is clear beyond doubt that the jurisdiction of the new International Criminal Court--unlike the special tribunals created by the UN Security Council to deal with atrocities committed in former Yugoslavia and Rwanda -- will not be retroactive. The new court, after it has been ratified by 60 nations, will build a regime of law to safeguard all nations in the future against the outrageous abuses that continue to plague humankind today.
Opponents of the new court frequently ignore the fact that the international criminal court will be completely subordinate to national courts. It is only where the national courts are unable or unwilling to grant a fair trial to the accused that the international court can intervene. Almost all war crimes by UN nationals can be tried by UN courts, thereby preempting the international court.
A recent article by a highly respected military judge, Professor Robinson Everett of Duke University, suggests a more comprehensive way of ensuring absolute priority to American courts by enacting UN legislation assuring that UN courts will have jurisdiction to try any American accused of violating the law of nations as laid down in the Statute for the International Criminal Court. This would guarantee American defendants all their Constitutional rights in every possible case and, if the trial were fair, would completely exclude any prosecution by the international court. It is hoped that the UN negotiators will not insist upon the right of the United States to conduct sham trials in order to evade international justice. The ultimate decision about the adequacy of national trials rests with the international court but there are adequate safeguards to prevent abuse.
Many provisions were written into the Court's statute to protect American servicemembers from unfounded or politically motivated accusations. The Prosecutor is subject to supervision by several carefully selected judges and an Assembly of States. There are many budgetary and administrative controls.
The new court has no independent enforcement mechanism and must rely upon the international community if it is to be effective. A biased or incompetent court would soon cease to exist.
In supporting an improved world order for the next millennium, we should recall the words of Tom Paine who inspired the American Revolution: "We have it in our power to make the world over again. "The UN military must be ready to take a chance for peace-for their own sake and for the sake of all of us.
In this thermonuclear age of instant universal communication we must never forget that law is always safer than war.
Benjamin B. Ferencz
15 June 2000
A Former Nuremberg War Crimes Prosecutor
Book Review and Note: The International Criminal Court: The Making of the Rome Statute
By Benjamin B. Ferencz
published: January 2000
source: The American Journal International Law (94 A.J.I.L. 218)
A statute laying the foundation for a permanent international criminal court (ICC) was adopted by overwhelming vote at a diplomatic conference in Rome on July 17, 1998. The Secretary-General of the United Nations, Kofi A. Annan, hailed the statute as "a gift of hope to future generations," as "one of the finest moments in the history of the United Nations," and as "a giant step forward in the march towards universal human rights and the rule of law" (p. ix). Professor Roy S. Lee, executive secretary of the Rome Conference, has assembled and edited contributions from twenty-eight key players who present an authoritative "insider's view" that explains the statute's 128 articles and how difficult compromises were reached in the process of drafting them. It is an indispensable source book for serious students of the subject.
Managing a conference of 160 participating states and amalgamating vastly divergent viewpoints was a daunting enterprise. Lee's introduction sketches the creation of simultaneous working groups and coordinating mechanisms to reconcile and meld conflicting clauses into one cohesive legal package. Policy questions that could not be settled had to be skillfully deferred for later consideration. Lee, who recently retired as director of the United Nations' Codification Division, maintains that the new court would harmonize national judicial systems and strengthen law enforcement regarding major crimes of concern to the world community. An ICC would help deter those who thought themselves beyond the reach of international justice. He concludes, optimistically: "An effective, functioning International Criminal Court will soon be a reality" (p. 38).
Sixteen explanatory chapters follow the sequence of the statute itself. John T. Holmes, of Canada, surveys the fears of many delegations that an ICC would trespass on national sovereignty. The compromise text confirmed that the court would only complement and not supplant national courts. The ICC could step in only when national courts were unable or unwilling to bring to fair trial those who had committed outrageous crimes; since genocide, crimes against humanity, war crimes, and aggression are usually committed with the connivance of the state itself, however, the ultimate decision whether a local trial, if any, was a sham had to be left to the international judges. Holmes lauds this framework of complementarity as a balanced and valuable approach obliging states to fulfill their obligations under customary and conventional international law.
Which crimes should come within the jurisdiction of the court? The difficulties are reviewed in thoughtful comments by Herman von Hebel of the Netherlands and Darryl Robinson of Canada. It was finally agreed that the court would have jurisdiction over only four "core crimes": genocide, crimes against humanity, war crimes, and the crime of aggression. Genocide, already accepted in binding conventions, was the least contentious. Definitional problems arose concerning crimes against humanity. They were made punishable only if part of a widespread or systematic attack against any civilian population—regardless of the nature of the conflict. The delineation of war crimes, the limits of military necessity, collateral damage, and proportionality were intensively debated. The United States, concerned about restraints on its ability to intervene militarily in humanitarian emergencies, sought to restrict the court's reach by insisting, in particular, that the elements of crimes -- the conditions under which criminality could be imposed—be clearly stipulated. Attempts to criminalize the use of nuclear weapons were doomed to defeat by the nuclear powers.
Punishing the crime of aggression was probably the most contentious issue of the Rome Conference. Many states, recalling that "crimes against peace" had been condemned by the Nuremberg War Crimes Tribunal as "the supreme international crime,"  insisted that it be subject to trial by the ICC. Others argued that aggression should be omitted; not only had it never been adequately defined for use in a criminal statute, but the Security Council might, for political reasons, prevent prosecutions. The result was a hastily drawn, last-minute compromise. Before aggression could be dealt with by the criminal court, nations would have to agree upon its definition and clarify the role of the Security Council in connection with such a charge. The requisite discussions will have to await a review conference, which can take place no earlier than seven years after the statute is ratified and takes effect. Until that time, aggression will not be within the ICC's jurisdiction. Contrary to the recommendation of the International Law Commission, the inclusion of "treaty crimes," such as torture, drug trafficking, and certain forms of terrorism, was also postponed.
The United Kingdom's veteran negotiator Elizabeth Wilmshurst elaborates on the "trigger mechanism" for bringing cases to the ICC and the consent required from states before the court can act. She describes compromises that left many questions unanswered. Lionel Yee, respected leader of the Singapore delegation, discusses the Security Council's UN-Charter responsibility to determine the existence of aggression by a state (Article 39) and to maintain peace under its Chapter VII authority. The composition and administration of the court, including the process of selecting judges, are described by Medard R. Rwelamira, legal adviser to the South African delegation. Silvia A. Fernandez de Gurmendi, a seasoned diplomat from Argentina, who played a key role in coordinating the draft rules of procedure and evidence for the court, describes the negotiating process and offers a detailed analysis of the powers of the prosecutor. She concludes that a sufficient system of checks and balances has been created to regulate and to prevent abuses by either the prosecutor or the court.
The legislative history of the dozen or so articles dealing with general principles of criminal law, which were needed to assure fair trial by the ICC, is analyzed by Per Saland, the distinguished Swedish diplomat who was also the committee chairman. Included in his discussion are: provisions guaranteeing nonretroactivity of the statute; the requirement of criminal intent (mens rea); the responsibility of commanders; applicable law; and the unique problems that arose in defining "gender crimes." Fabricio Guariglia of Argentina explains the investigation and prosecution procedures, the rules for which are set down in a straightforward way. Hans-Jorg Behrens of the German delegation reviews trial procedures, including the submission of evidence. Hakan Friman of Sweden deals with the rights of the accused and the exclusion of trials in absentia.
Christopher Muttukumaru of the British delegation treads on new ground. He explains Article 75 of the statute, which calls for the "restitution, compensation and rehabilitation" of victims in accordance with principles still to be worked out by the judges. Practical implementation of this elementary axiom of justice was given little consideration, despite important precedents.  A matter of especially intense debate concerned the handling of confidential national security information and how it could be admitted or excluded as evidence. The storm it generated is dramatically described by Donald K. Piragoff of Canada, who concludes that relinquishing the decision to the judges leaves uncertain whether the future will be clear or turbulent. Helen Brady and Mark Jennings of the Australian delegation describe procedures dealing with appeals and the revision of sentences, and also discuss the compromises reached in order to create what they characterize as a workable regime.
International cooperation with the ICC is dealt with by Phakiso Mochochocko of Losotho, who chaired committees on that subject. Despite hard-fought political compromises, the ideal of a perfect regime, one in which all states are legally bound to give the prosecutor all the assistance needed, could not be attained. Rolf Einar Fife, head of the Norwegian delegation, describes problems relating to the penalties that the ICC can impose. The variety of national standards and norms seemed irreconcilable; states that abandoned the death penalty would not sign on to a statute that permitted capital punishment. A consensual solution was ultimately found; namely, that the statute would not prejudice the application of penalties under national laws.
Problems relating to the imprisonment of convicted persons are described by Trevor Pascal Chimimba of Malawi (who pays special tribute to the help received from an American delegate, Mary Ellen Warlow, of the U.S. Department of Justice). Advances in delineating, investigating, and prosecuting crimes of sexual violence are described in detail by Cate Steains of the Australian delegation, who also discusses improved procedural and structural mechanisms to assist female victims and assure gender balance in court administration. The emotionally charged issue of "forced pregnancy" required delicate compromises with Catholic and Arab countries, which feared interference with national laws prohibiting abortion. The adoption of measures to provide greater protection to women -- as a matter of human rights—was a praiseworthy achievement.
Vigorous lobbying by a determined Women's Caucus for Gender Justice played a decisive role in advancing women's rights beyond what had been achieved by the ad hoc criminal tribunals the Security Council created in order to deal with genocide and crimes against humanity in Yugoslavia and Rwanda. The activities of nongovernmental organizations (NGOs) are described in a chapter by William R. Pace, coordinator of the Coalition for an ICC, and his able assistant Mark Thieroff. Amnesty International and other NGOs monitored the work of the delegations, presented papers in support of various provisions, and kept the public informed; it was a demonstration of the effective mobilization of civil society on behalf of the rule of law. Pace's coalition, supported by hundreds of human rights advocates, continues its campaign at the United Nations and around the world to obtain the ratifications needed for the ICC to become operational.
Institutional measures that must still be completed are ably described by S. Ramo Rao, India's knowledgeable expert on UN legal matters. He analyses issues relating to financing the ICC, the formation and activities of the assembly of state parties that will supervise the court once it starts functioning, and the interim responsibilities of the preparatory commission that met in 1999 and will meet again this year to make recommendations on a number of outstanding matters. He identifies the progress over the years and outlines the major viewpoints expressed. His cautious conclusion is that the statute's viability "will lie in its application on the ground and . . . on the overall acceptability of the Court in the real world" (p. 420). Ambassador Tuiloma Neoni Slade of Samoa and the ebullient Professor Roger S. Clark of Rutgers University, who played an important role in his capacity as adviser to the Samoa delegation, present trenchant comments on the preeamble and final clauses, which deal with the settlement of disputes regarding the statute; the prohibition of reservations; procedures for amendments, accession, or "opting out"; and other transitional provisions.
The book's many detailed chapters are placed in an illuminating perspective by Ambassador Philippe Kirsch, legal adviser to Canada, who skillfully guided the Rome Conference to its successful conclusion. He describes the evolution of the Rome Statute; the negotiating process; the division of labor; and the tributes and credit due to many states and individuals.  He concludes that the international community has a responsibility toward the past and future victims of abominable crimes "to create a Court with workable rules and the tools to fulfill its historic mandate" (p. 461). Adriaan Bos, legal advisor to the Netherlands, who endeared himself to all during years as chairman of preparatory committees, called for the widest possible support for the ICC as an institution of "inestimable importance to the development of the international legal order" (p. 470). In an epilogue, "Looking to the Future," Professor Giovanni Conso, president of the Rome Conference and former minister of justice of the host country, Italy, appeals to the political and moral responsibility of nations "to establish the International Criminal Court on a sound, practical basis, as soon as possible" (p. 477).
The book closes with brief comments by almost one hundred governments (followed by an appendix containing the full text of the Rome Statute). The European Union described itself as "as extremely satisfied" (p. 574). Australia hailed "the realization of a long-standing goal" (p. 575). Canada called the statute "an outstanding example of what the international community could achieve when the necessary political will existed" (p. 579). China had reservations concerning the universal jurisdiction provisions, which, in its view, "infringed on the judicial sovereignty of States" (p. 582). Egypt noted that the "Arab world had need for such a Court" (p. 591). The Holy See welcomed the outcome of the conference. India stressed its disappointment that terrorism was not included within the court's jurisdiction and that the first use of nuclear weapons was not recognized as an international crime (p. 599). Israel expressed concerns about several formulations it considered prejudicial (p. 602); despite that country's support for a body such as the ICC since the 1950s, it was one of the few states that did not vote in favor of the statute. Japan recognized that the court was a major step forward but noted that much still remained to be done (p. 604). Russia saw the statute as being, on the whole, a well-balanced compromise (p. 616). The United Kingdom joined with the European Union in supporting the ICC (p. 631). The United States expressed its support for something like an ICC but concluded that the Rome Statute "contained flaws that rendered it unacceptable" (p. 632).
It is most regrettable that the United States, for reasons not shared by others, felt constrained, for the time being, to reject what most other nations of the world were ready to accept. After all, it was Elihu Root, the founder and first president of the American Society of International Law, who had espoused the creation of such a court after World War I. And it was the United States that, after World War II, led and inspired the rest of the world with its insistence at Nuremberg that aggression, crimes against humanity, and war crimes were criminal acts that would, in the future, subject all perpetrators to international justice. It was the United States that made possible the creation of the two ad hoc tribunals to punish genocide and crimes against humanity in Yugoslavia and Rwanda. It was America's president who proclaimed to the UN General Assembly on September 22, 1997, that "before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law." It is to be hoped that these great stepping stones will not be cast aside now.
The implied promise of the Nuremberg that "never again" will crimes against humanity or aggression go unpunished has yet to be fulfilled. It remains to be seen whether powerful states will be willing to yield some of their sovereignty by accepting new rules of the road designed to protect the peace and dignity of humankind. The United States has always led the world in calling for the protection of human rights. It must not fail or falter now by seeking to exclude itself from legal constraints that must bind everyone if we are to have a more peaceful world under law. The President should sign the Rome Statute as a confirmation of his good faith and continuing support for his professed goals. When the treaty is submitted to the Senate for its advice and consent before ratification, all doubts can be debated and the voices of the people can be heard.
The legal community is on the threshold of taking an important step forward in the evolution of international criminal law. An International Criminal Court is now in formation but it has not yet been formed. Many excellent new books dealing with the International Criminal Court have already appeared or are in preparation. They will help lead the way to the new legal thinking that is urgently needed for the new millennium. Roy Lee's compilation, with its comprehensive insights, is well worth studying by all who are concerned with the peace and security of humankind.
* The Hague, London, Boston: Kluwer Law International, 1999. Pp. xxxv, 659. Index. Fl 295; $ 177; £ 103.25.
 See, e.g., Benjamin B. Ferencz, The Crime of Aggression, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW ch. 2 (Olivia Swaak-Goldman & Gabrielle Kirk McDonald eds., forthcoming 2000).
 See Benjamin Ferencz, Book Review, 84 AJIL 999 (1990) (reviewing DIE WIEDERGUTMACHUNG NATIONAL-SOZIALISTISCHEN UNRECHTS DURCH DIE BUNDESREPUBLIK DEUTSCHLAND vols. 1-6 (1974-1987)).
 Kirsch mentions, in particular, the dedicated United Nations legal counsel Hans Corell and his able staff, including Roy Lee, Mahnoush H. Arsanjani, Christiane Bourloyannis-Vrailas, and Virginia Morris (p. 453 n.9).