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2005 - 2009
On President Obama's Nobel Speech - December 2009
Ending Impunity for the Crime of Aggression - September 2009
How Should We Remember McNamara? - July 2009
Reconciling Legitimate Concerns and Removing the Lock - May 2008
A World of Peace Under the Rule of Law - March 2007
Fair Standards to Prosecute Terrorism? - August 2006
The Holocaust and the Nuremberg Trials - December 2005
Q & A with Benjamin Ferencz - December 2005
The Legality of the Iraq War - April 2005
Origins of the Genocide Convention - January 2008
Paradoxes with a Sharp Legal Mind - November 2005
Heed the Lesson of Nuremberg - November 2005
Saddam Hussein's Trial - September 2005
The Nomination of John Bolton - April 2005
War Crimes Tribunals - January 2005
On President Obama's Nobel Speech
By Benjamin B. Ferencz
published: December 2009
Ben Ferencz has received several inquiries about his view of President Obama’s Nobel Speech last week in Oslo. We share the following response, originally sent privately, in the hope that readers of the web site may benefit from its message:
Thank you for your clear and moving expressions of disappointment regarding President Obama's speech when accepting the Nobel Prize. Your points are well taken but perhaps a rereading may help explain the political approach that was inevitable in a speech heard round the world. I was happy when the awards committee selected our President for the world's most prestigious peace prize. I felt it conveyed appreciation and hope that American policy toward the use of armed force had changed.
Some of the President's remarks tended to confirm those aspirations: "War is never glorious and we must never trumpet it as such." Obama quotes President Kennedy's declaration that attainable peace must be "based not on a sudden revolution in human nature but on a gradual evolution in human institutions." He praised the consensus that, following UN approval, responded to aggression by Saddam Hussein's invasion of Kuwait and noted, "America cannot insist that others follow the rules of the road if we refuse to follow them ourselves.” “...If we want a lasting peace, then the words of the international community must mean something. Those regimes that break the rules must be held accountable." He says that a just and lasting peace must be "based upon the inherent rights and dignity of every individual…." He recognizes that "strong institutions"" are a vital component of peace. All of the above citations deserve a Nobel prize. They reflect Nuremberg principles of 1945 that earned the respect and love of nations everywhere. I tried to uphold those American-led traditions when I accepted the Erasmus Prize in the Hague on November 13, 2009.
Of course, it was to be expected that the President’s speech would also reflect sentiments of those patriotic and dedicated Americans who have no confidence in rules of international law and prefer to rely on unilateral force to protect US interests. I suspect the President's speechwriters may have had such constituencies in mind when he said: "There will be times when nations --- acting individually or in concert --- will find the use of force not only necessary but morally justified...." He notes the world's suspicion of the US as "the world’s sole military superpower." He proclaims nuclear disarmament to be "a centerpiece of my foreign policy.” Yet, the President concludes that force can be justified on humanitarian grounds" and he, justifiably, praises the military and condemns torture.
In short, the speech, in my view tried to cover too many topics and tried to assuage too many voters of diverse views. It reflects the ambiguities and paradoxes within which he must try to govern an unruly and impatient nation plagued by pressing economic and health problems that demand immediate solutions. I would have welcomed some reference to the International Criminal Court and the ongoing long-range efforts to build the legal institution that seeks to deter the crime of aggression. But I recognize that this is not the best time for such diversions. The Helms-Bolton efforts to kill the court have been repudiated by the Obama administration and I am hopeful that our government will return to the ideals of Justice Jackson.
As I approach the age of 91, I continue to argue, wherever and whenever I can and by every available means, that those who hold the destiny of peoples in their power must be answerable before an international criminal court for the supreme crime of aggression. After the horrors of World War II, that was the hope of Justice Robert Jackson, President Truman, the Nuremberg judges and leading legal experts everywhere. President Eisenhower appealed for reliance on law rather than war and that has become the credo on my website. What a pity that such respected organizations as Amnesty International and Human Rights Watch have not yet recognized that deterring illegal war-making is the best way to avoid crimes against humanity. Eliminating nuclear arms would also be an important step. I am grateful for your help. Let us recall President Obama’s concluding sentence in his Nobel speech: striving for peace and justice is "the hope of all the world; and at this moment of challenge, that must be our work here on Earth."
Ending Impunity for the Crime of Aggression
By Benjamin B. Ferencz
published: September 2009
source: Case Western Journal of International Law, Fall 2009, Vol. 41, Nos. 2 and 3
ABSTRACT: Jurisdiction of the International Criminal Court over the crime of aggression has been deferred for reasons that are not persuasive. Aggression has already been adequately defined. The UN Security Council and the International Criminal Court are linked by the existing ICC Statute adopted in Rome. Compromises already reflected in the Rome Statute will be difficult to revise by new amendments. Ambiguities are best resolved by ICC Judges. Nuremberg’s condemnation of “the supreme international crime” should not be repudiated. The ICC must be enabled to deter aggressions by bringing transgressors to justice.
AGGRESSION HAS ALREADY BEEN ADEQUATELY DEFINED
(1) From Nuremberg in 1946 to Rome in 1998
The International Military Tribunal at Nuremberg (IMT), composed of esteemed judges from the United Kingdom, France, the Soviet Union and the United State, acknowledged that ex post facto punishment was abhorrent to the law of all civilized nations. They observed that the general principles of justice should be respected but not followed blindly.
The tribunal was explicit that declaring aggression to be "the supreme international crime" was not an exercise of arbitrary power on the part of the victors, as has often been alleged, but the reflection of an evolutionary process that had evolved after countless millions of people had been killed in brutal warfare. "To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.”  "This law is not static", said the Tribunal, "but by continual adaptation follows the needs of a changing world." 
Article 6 of the Nuremberg Charter defined Crimes Against Peace as "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.“ 
This broad definition was the basis for war crimes trials in Tokyo and elsewhere. The Nuremberg Charter and Judgment were adhered to by 19 more nations and unanimously affirmed by the first General Assembly of the United Nations. U.S. Supreme Court Justice Robert H. Jackson, in his Opening Statement said, ”We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well".  Jackson made clear that if law is to serve a useful purpose "it must condemn aggressions by any other nations, including those who sit here now in judgment."
To help implement its plan for a criminal code to be enforced by an international criminal court, the U.N. General Assembly appointed Special Committees on the Question of Defining Aggression. The definition of aggression was reached by consensus as an integrated and indivisible package and approved by the General Assembly in 1974 as Resolution 3314. Agreement was made possible by a number of rather vague compromises and exculpating clauses of such creative ambiguity that nations with opposing views could interpret its contradictions to support their own political objectives.  The consensus definition began with a generic declaration that "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 U.N.” Obvious illustrations, such as invasion, military occupation, bombardment, blockade or attack were listed, but it was stipulated that the Security Council could determine that these prima facie indicators were not aggression and that other acts were aggression. (Italics added.) It was left to the Council to decide whether any act of a state was aggression or not.
The International Law Commission (ILC), composed of independent experts from many countries, after extensive deliberation reached the conclusion that aggression was a customary law crime and "it should be left to practice to define the exact contours of the concept of crimes against peace... as identified in article 6 of the Charter of the Nurnberg Tribunal."  The ILC also concluded that until an act of aggression by a State has taken place, no individual can be held accountable for the crime.  "It would thus seem retrogressive to exclude individual criminal responsibility for aggression... 50 years after Nuremberg." Those who argue for greater certainty fail to note that many valid criminal statutes contain vague phrases, such as “fair trial”, “due process” and similar clauses that require judicial interpretation. Indeed, the Rome Statute itself limits its jurisdiction to “the most serious crimes of concern to the international community as a whole”.  War crimes include “outrages against personal dignity”  Such nebulous descriptions have remained uncontested even though they would hardly qualify as models of legal precision. The argument that aggression can not be tried by the ICC because the crime has not been adequately defined is simply not persuasive.
(2) Fiddling with Aggression in Rome in 1998
On 17 July, 1998 in Rome, for the first time in human history, delegates from all over the world voted overwhelmingly to create an international criminal court (ICC. The crime of aggression was listed, in Article 5 (1), as one of the four core crimes, following genocide, crimes against humanity and war crimes. But then a most unusual and unique temporary restriction blocked the court from exercising its jurisdiction over aggression. No other provision in the ICC Statute contained such restraints.
Article 5 (2) provided:
The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121and 123 defining the crime and setting out the conditions under which the Court shall exercise its jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
The creative last-minute compromise contained in Article 5(2) reflected the continuing tension between States that were still unwilling to surrender part of their sovereign right to wage war and the desire of weaker States that sought protection against aggressors behind the shield of an independent international court.
An Annex to the Rome Statute stipulated that amendments could be taken up at a Review Conference, at least seven years later, to deal with "the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime"… “with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. (Underlining added.)  In 2002, the ASP created a Special Working Group on the Crime of Aggression, open to all nations, to consider what should be done about the temporary suspension of jurisdiction over that vital offense. For years, Working Group members argued diligently and quibbled about the wording of a new definition. If agreement on an amendment can be reached, it would be a valued contribution, since it would end the unjustified allegations that the crime of aggression has not been defined.
The mandate referring to “elements of the crime of aggression and the conditions under which the ICC could exercise its jurisdiction” was rather puzzling since the General Principles of Criminal Law dealt with the elements in considerable detail.  Many delegates felt it would be better to leave well enough alone. Clarification of the elements is still to be considered.
Furthermore, the prescribed procedures for amendments were neither simple nor clear.  An overwhelming majority of seven-eighths of the Parties might have to agree before any amendment would be legally effective. Some nations hoped that such high hurdles might be insurmountable. Prolonged debates about the meaning of various words or phrases could keep the crime of aggression in legal limbo forever. If stalemates could not be broken, potential aggressors would certainly not be deterred. Quite the contrary, tyrants and dictators would more likely be emboldened to flaunt their immunity by defiant acts of aggressive war.
(3) The Bottom Line on the Definition
Allowing aggression to be tried the same as the other three core crimes (genocide, crimes against humanity and war crimes) upholds respected decisions of the International Military Tribunals of Nuremberg, as affirmed by the UN General Assembly in 1946, the consensus definition of 1974, the recommendation of the esteemed International Law Commission experts and profound judicial determinations many years later. Many renowned scholars, such as Professors Cherif Bassiouni, Claus Kress, Antonio Cassese, William Schabas and a host of other highly regarded authors, maintain that aggression is already a customary international crime that is subject to universal jurisdiction as a peremptory norm from which there can be no derogation.
The very distinguished British Law Lord Bingham of Cornhill, hit the nail on the head when he stated in a 2006 case "...the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure." 
It is the duty of the ICC judges to interpret the Statute and the applicable precedents and work papers - if and when the need arises. The 18 members of the Court, elected to balance gender and different judicial systems, can be relied upon for a just interpretation of the law, precedents and commentaries. Indeed, the Rome Statute requires them to do so.  If the judges feel that new amendments or clarifications are needed, they can make such proposals to the Assembly of States Parties (ASP). All that is required now is to remove the temporary restraints placed there by Article 5 (2). Accepted improvements are surely welcomed, but, after so many years of intense debate, it should be obvious that the crime of aggression has already been adequately discussed and improvements are not really necessary.
LINKS BETWEEN THE UNITED NATIONS AND THE COURT
(1) Security Council Powers under the UN Charter
Many nations have recognized, in principle, that the International Criminal Court – the missing link in the world’s legal order - should be an independent juridical institution. Yet, the ICC cannot function in a political vacuum. When the United Nations was formed, after World War Two, it was a political reality that the victorious allies were not prepared to give up their military power to any untried international body. They assumed the responsibility to maintain the peace but insisted upon a special right to veto any enforcement action; it was the price that had to be paid to bring the United Nations Organization into existence. Amendments to correct inequitable Charter provisions, as was promised in 1945, never materialized.  Powerful states, primarily concerned with preserving their own power, hesitated to accept the idea that aggression was a punishable international crime. The world continues to pay dearly for such intransigence.
By the time the Rome Statute was adopted in July 1998, it contained several clauses to protect Security Council powers already vested in the UN Charter. It stipulated in Art. 5 (2) that any amendment regarding the crime of aggression“shall be consistent with the relevant provisions of the Charter of the United Nations”. Article 39 of the Charter directed the Security Council to determine the existence of any act of aggression and to decide upon measures to restore the peace. Neither the ICC nor its Assembly of State Parties has any authority to alter or evade any UN Charter obligations. It was argued that the SC mandate was not exclusive and the UN Charter related only to acts of States and had nothing to do with individual criminal culpability. The International Law Commission, which included experts from powerful states, concluded that until an act of aggression by a State had occurred, no individual could be held accountable for the crime. According to the ILC, conviction by the ICC was dependent upon a prior determination by the Security Council. You could not have one without the other.  It must not be forgotten that the ICC has no enforcement powers of its own. For assistance in investigations or apprehension of defendants it depends upon cooperation from national states or support by the Security Council. Enforcement measures require concurring votes of all five Permanent Members (US, UK, China, France and Russia) who, in effect, hold the reins of power.  It was understandable that many States, fearing the politicization of the Security Council, were determined to uncouple the ICC from SC influence or control – if possible. The Special Working Group wrestled mightily for ways to by-pass the Council connection. They considered turning to other bodies, such as the General Assembly or other international courts to decide whether a State has committed aggression. Each alternative option posed new problems. How other agencies or courts might react was complicated and unpredictable. The UN General Assembly would hardly qualify as an objective non-political forum. After considerable discussion about how to avoid abuse of the vested power of the Security Council, no generally-acceptable substitute was in sight. There was no advantage in trying to jump from the frying pan into the fire.
(2) Security Council Powers Pursuant to the Rome Statute
In addition to restrictions that the pre-trial chamber and the rules of procedure place upon the Court, linkages between the ICC and the SC were integrated into the Statute in the hope that universal participation might be encouraged. The Court was given jurisdiction to accept situations referred by the Security Council. The Rome Statute also grants the Security Council the right to halt any ICC proceeding for renewable 12-month periods.  Thus, the SC controls a green light but also the red light to halt all ICC proceedings indefinitely. To be sure, the Council cannot intervene arbitrarily but only to preserve the peace “in conformity with principles of justice and international law,”  Whether ICC judges will be able to consider whether the SC has acted in conformity with the UN Charter is uncertain but, the linkage between Council and Court has been firmly anchored in the Statute.
In addition, the ICC, under a principle of “complementarity”, must halt its proceedings and grant priority to any national court that is able and willing “genuinely” to try the accused.  Who decides whether a trial is “genuine” is unclear. Moreover, any State, whether a member of the Security Council or not, can divest the ICC of power by simply incorporating the Rome Statute into its own domestic legislation, thereby reserving for itself the right to try its own nationals in its own courts.
To placate those who were still not ready to accept ICC jurisdiction over the crime of aggression, the Rome Delegates finally agreed to a last minute saving compromise that led to protracted debates about what it really meant.  The complicated and obtuse Article 121 seemed to say that in addition to the high hurdle of 7/8th of the delegates generally having to agree on amendments, no State Party would be bound by an amendment on aggression unless it also specifically accepted the change by formal ratification.  Many persons argued against a broad interpretation that undermined the basic purpose of the ICC.  In the end, giving States the option not to be bound was a price that had to be paid to gain acceptance in Rome from nations that were determined to retain the right to go to war. Thus, it came about that all State Parties, and probably non-Parties, were enabled to avoid ICC jurisdiction over the crime of aggression simply by doing nothing.
There is a delicate balance between Court and Council. It should be clear to members of the Security Council and their friends that no more protection is really needed than what they already possess in both the UN Charter and the Rome Statute itself. Nations that nevertheless insist on additional guarantees inevitably generate suspicion and hostility. On the other hand, forgoing new demands for more restraints on the ICC should earn appreciation and good will instead of fears and resentment. The SC could be seen as a partner of the ICC instead of an adversary – which is as it should be. The notion of a completely independent ICC is a mirage.
(3) Misguided Fears
Despite assurances built into the UN Charter and the Rome Statute, some powerful States still hesitate to accept the jurisdiction of any new legal institutions to deter aggression. Outdated notions of national sovereignty in an interdependent world obscure the need for change. As long as the military may be required to act with armed force in situations which political leaders proclaim are purely defensive or humanitarian, commanding officers can hardly be expected to welcome the existence of any international court to test the legality of their military action. Their concerns are fully understandable but very short-sighted. There can be no doubt that the best way to protect the lives of those who serve in the armed forces, (as well as countless civilian victims,) is to deter the crime of aggressive war. The Allied Supreme Commander of World War Two, Dwight D. Eisenhower, after he became President of the United States, warned the nation that "the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law."  Eisenhower’s advice was repeated in the memoirs of General Douglas MacArthur, commander of forces in the Pacific, as well as very many others -past and present - who have experienced the indescribable horrors of warfare. For their own self-interest, all nations must try to stop glorifying war and turn instead to the rule of law.
It may be that the Council will not respond to a request from the Prosecutor for guidance whether an act of aggression has occurred. Even if the Council fails to live up to its Charter responsibilities, the indictment will serve a useful purpose. Aggressors should realize that there is a possibility of trial before the ICC. The deterrent effect, no matter how modest, is an improvement over the present immunity. Surely, something is better than nothing. Even if the aggression issue lies dormant on the Council shelf, the Prosecutor need not remain helpless. National leaders suspected of planning or committing the crime of aggression may simultaneously be charged with Crimes Against Humanity and War Crimes - which carry the same maximum sentence as aggression. There has never been a war without atrocities. ICC trials for crimes other than aggression do not require any prior permission from the Security Council. SC failure to react to aggression is bound to evoke public outrage. The court of public opinion, informed by new means of instantaneous worldwide communication, is a powerful force which cannot long be ignored or suppressed. The “shame factor” may be the most effective enforcement tool available to the ICC. 
The UN Charter prohibits the use of armed force without Security Council approval. Violent disputes that seem irreconcilable are best resolved by a court of law competent to administer justice and hold lawbreakers to account. To be sure, there have been occasions where the Council was politically paralyzed and force was needed to save human lives. The rules for justified humanitarian intervention and the criteria for legitimacy are still in formative stages. Nevertheless, there is ample room in the existing ICC Statute to cope with illegal acts that might be morally justifiable. Inventing new legal terminology to evade criminality, such as calling it “soft law” or “illegal but legitimate” or a “responsibility to protect” can be a dangerous practice. The ICC Statute recognizes that there may be many valid moral reasons, including intent and knowledge, for limiting criminal responsibility or mitigating punishment.  The Prosecutor, subject to control of judges, can decide not to prosecute if it “would not serve the interests of justice.“  Judges can acquit and the SC has no say in the matter. Penalties and sentencing “must reflect the culpability of the convicted person“  Court sentences must “take into account such factors as the individual circumstances of he convicted person.”  The ICC recognizes that morality and law go hand in hand. The world legal order is jeopardized every time any nation, unilaterally or in coalitions, takes the law into its own hands. 
SUMMARY AND CONCLUSION
The mandate of the Rome Annex related primarily to the definition of aggression and the relationship between Court and Council. The more amendments that are offered for consideration at the Review Conference, the more difficult it will be to focus on "the supreme crime" of aggression. Many scholarly books and articles have been written by learned professors and others offering good suggestions on how to improve the ICC Statute.  Of course, any amendment that can gain the support of the ASP and remove the Article 5 (2) lock from the courthouse door should be embraced as a significant victory. The test is not whether a proposal is perfect, but rather with it can meet the high threshold of acceptability.
Failure to allow the ICC to punish aggression is a repudiation of Nuremberg and a step backward in the development of international criminal law. Acknowledging that the ICC and the Security Council are inevitably linked sacrifices nothing that has not already been conceded. What it gains is to enable the ICC to deter or bring to justice those leaders guilty of the crime of aggression. Prohibiting the ICC from exercising its jurisdiction is an indefinite guarantee of continuing immunity for future aggressors. The result is self-defeating and counter-productive since it produces just the opposite of what those who support the ICC hoped to achieve.
If agreement cannot be reached with respect to competing proposals, the only alternative available to fulfill the mandate to include aggression within the active jurisdiction of the Court would be simply to delete Paragraph (2) of Article 5. Nothing more is needed.
Giving an international criminal tribunal effective jurisdiction over aggression, even if it seems remote today, would be an historical achievement of incalculable significance. Every legal step should be taken that might help deter nations from the incredible horrors of armed conflicts. Aggressors should not be granted a renewed license to wage illegal wars with impunity.
The most important accomplishment of the Nuremberg trials was the condemnation of illegal war-making as the supreme international crime. That great step forward in the evolution of international humanitarian law must not be discarded or allowed to wither. Insisting that wars cannot be prevented is a self-defeating prophecy of doom that repudiates the rule of law. Nuremberg was a triumph of Reason over Power. Allowing aggression to remain unpunishable would be a triumph of Power over Reason.
BENJAMIN B. FERENCZ
A former Nuremberg war crimes prosecutor.
Juris Doctor, Harvard Law School, 1943
1. As reproduced in, Benjamin Ferencz, An International Criminal Court, Volume I, p. 477, Oceana Publications, (1980); For additional relevant historical documents pertaining to the definition of aggression, see also Benjamin Ferencz, Defining International Aggression, Oceana Publications, (1975)
2. Ibid, p. 479.
3. Nuremberg Charter, Article 6-C
4. See Historical Review by UN listing all decisions of the United Nations dealing with aggression.
5. General Assembly Resolution 95 (1) 11 December 1946
6. Benjamin Ferencz, Defining International Aggression, at 439, supra note 1 at 439.
7. Benjamin Ferencz, “Sieve or Substance” article.
8. 51st General Assembly, A/51/10, p. 15 (1996).
9. Int’l Law Comm’n, Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May–26 July1996, art. 8, ¶ 14, U.N. Doc. A/51/10 (1996).
10. 40th General Assembly, A/40/10, 1994 p. 72, 83.
11. Article 1 of the Rome Statute of the International Criminal Court (hereinbelow “the Statute”).
12. Rome Statute Art. 8.2(xxi).
13. Final Act of the United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court, Res. F(7), U.N. Doc. A/CONF.183/10 (15 June 1998) [hereinafter Rome Statute Annex I], available athttp://untreaty.un.org/cod/icc/docs.htm.
14. Part III of the Rome Statute.
15. There were long debates as to whether Articles 121-4 and 121-5 were mutually exclusive or complementary. Under Article 121-4, an overwhelming majority of seven-eighths of the Parties is needed before any amendment becomes legally effective. By contrast, Article 121-5 provides that amendments to Article 5 are binding only on those State Parties that independently ratify such amendments.
16. Jones, R. v. (2006) UKHL 16 (29 March 2006) ¶ 19, available at www.bailii.org
17. Rome Statute Article 21.
18. Chapter XVIII UN Charter.
19. UN Doc. A/51/10 p.85.
20. U.N. Charter Art. 27
21. Rome Statute Art. 13.
22. Rome Statute Art.16.
23. UN Charter Art. 1 and Chapter VII.
24. Rome Statute Art. 17
25. Assembly of States Parties Document A/Conf./83/C.1/L. 59, 9 July 1998, see also Roy Lee, The ICC, p.84-85.
26. See discussion at note 13, supra, as well as the article on this topic in this Symposium Edition by Donald M. Ferencz.
27. See the article on this topic in this Symposium Edition by Astrid Reisinger Coracini.
28. President Calls Law Key to World Peace, N.Y. Times, May 1, 1958, at 14; XXX Dep’t. of state Bull.831, 1958.
29. See Benjamin B. Ferencz, Speaking Frankly about the Crime of Aggression: Reconciling Legitimate Concerns and Removing the Lock from the Courthouse Door, May 10, 2008, http://www.benferencz.org/arts/93b.html.
30. Rome Statute Art. 30 and 31.
31. Rome Statute Art. 53 (c).
32. Rome Statute Rules and Regulations, Chap. 7, Rule 145.
33. Rome Statute Art. 78.
34. See generally the writings of Michael Reisman.
35. See for example, the works of M. Cherif Bassiouni, William Schabas, Antonio Cassese.
36. Under the Rules of Procedure, the President of the ASP can decide if a matter is substantive or procedural (Rule 63, 64). An argument can be made that removing a temporary suspension in Art. 5.2 is procedural; hence only a simple majority is needed for adoption.
How Should We Remember Robert McNamara?
By Benjamin B. Ferencz
published: July 2009
source: The New York Times
To the Editor:
Robert S. McNamara should be remembered as a dedicated patriot who learned from past mistakes and sought to restore America’s reputation as a leader in search of peace and justice. After leaving office, he became convinced that an international criminal court might help deter atrocities and illegal wars. In a joint Op-Ed article in The New York Times in December 2000, we called upon President Bill Clinton to carry forward the lessons of Nuremberg.
Hamstrung by the misguided recalcitrance of major powers, the International Criminal Court is still not authorized to try anyone for the crime of aggression. The most important teaching of Nuremberg was that aggressive war is a punishable offense that must apply equally to all.
Mr. McNamara learned that lesson too late. Better late than never.
Benjamin B. Ferencz
New Rochelle, N.Y., July 7, 2009
The writer was a prosecutor at the Nuremberg war crimes trials.
Reconciling Legitimate Concerns and Removing the Lock From the Courthouse Door
By Benjamin B. Ferencz
published: May 2008
source: Web Posting
The International Military Tribunal (IMT) at Nuremberg held that aggression was "the supreme international crime" for which leading planners and perpetrators could be held accountable in an international court of law. The legal recognition in 1946 that war-making was not a national right, but an international crime, was the greatest achievement of the trial and the proudest accomplishment of Robert M. Jackson, the highly esteemed United States Supreme Court judge who served as Chief Prosecutor for the United States. Jackson made clear that if law is to serve a useful purpose "it must condemn aggressions by any other nations, including those who sit here now in judgment." The trial was "part of the great effort to make the peace secure." Subsequent Nuremberg proceedings and Tokyo war crimes tribunals confirmed the profound IMT decision.
The first General Assembly of the United Nations also affirmed the Nuremberg principles. Successive UN committees were appointed to draft an international criminal code to be enforced by a permanent international criminal court. Fifty-two years later, on 17 July 1998, a new International Criminal Court (ICC) was finally approved after a hectic five-week conference of plenipotentiaries that met in Rome. The acclaim for the ICC was overwhelming. The Rome Statute authorized the creation of a new international tribunal to bring leading perpetrators of genocide, crimes against humanity and major war crimes to justice. Aggression was included as one of the four "core crimes" but the ICC was prohibited from exercising jurisdiction over that offense. Why not?
International law does not grow in a political vacuum. Some political leaders who hold the destiny of peoples in their power still do not see clearly enough the dire consequences of their failure to criminalize aggressive war. Ingrained traditions, symbols and slogans and outmoded notions of State sovereignty obscure the need for change. Article 5 (2) of the Rome Statute prohibited the ICC from trying anyone for the crime of aggression until, and unless, certain onerous conditions were fulfilled. Powerful states wanted freedom to use their power, including the use of armed force to protect their perceived vital interests. Weak states wanted a firm legal shield to protect them from aggressors. There was insufficient time in Rome to hammer out an agreement on such a contentious issue that had vexed diplomats for decades. In a last minute compromise, the intransigent aggression problem was pushed to a back burner for later consideration. An Annex stipulated that amendments could be taken up at a Review Conference which could deal with the definition of aggression and "the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime". What that meant was:
1-Aggression should be newly defined and 2- Agreement should be reached on the relationship between the ICC, which wanted to be independent, and the UN Security Council (SC) that wanted to control the show. Many expected or hoped that the crime of aggressin would remain in limbo.
The adopted Statute contained clauses that some considered obstacles and others regarded as safeguards. Before the ICC would be enabled to try any aggressor, at least 60 nations would have to ratify the Statute; (Surprisingly, the minimum was surpassed as early as July 2002, thus putting the Statute into effect.) Seven years would have to elapse before an amendment conference could be convened. The prescribed procedures for amendments were neither simple nor clear. A whopping seven-eights of the Parties would have to agree to changes. Ratification would also be necessary and those States that didn't ratify would not be bound by the provisions on aggression (Art.121). If the stalemate could not be broken, potential aggressors would certainly not be deterred but more likely encouraged to flaunt their immunity by continuing to defy the world community.
The Definition of Aggression
Opponents of the court argued that aggression was not adequately defined and was thus subject to possible abuse by a politically motivated Prosecutor. In fact, a "consensus definition": was reached and approved by the General Assembly in 1974 after about 25 years of intense wrangling by successive Special Committees. The final definition, like most compromises. was laced with ambiguous clauses to enable parties to interpret it to suit their own political advantage. Permanent Members of the SC who were less than enthusiastic about an ICC, inserted a clause that the definition was only advisory. Those opposed to an ICC also argued that the definition was intended only as a non-binding guide to the Security Council . The original assignment was linked to the Nuremberg precedents and made no reference whatsoever to the UN Security Council. Opponents of the ICC then argued that the definition did not conform to "principles of legality" because it left the final determination to an unfettered decision of the Security Council. It was not noted that many valid criminal statutes contain vague phrases, such as "fair trial," "due process, " and similar clauses that require judicial interpretation. The imprecision was caused by the same Security Council members who now complained that it was too imprecise.
The fact that the crime of aggression has already been adequately defined was asserted in 1945 by Justice Jackson, was upheld in the judgments of the International Military Tribunal and confirmed by the General Assembly in 1946. It was endorsed, after comprehensive study, by the esteemed International Law Commission experts in 1996. Several renowned scholars, like Professor Cherif Bassiouni, Professor Claus Kress, and a host of other highly regarded authors, maintain that aggression is a customary international crime that requires no further definition or is subject to universal jurisdiction as a peremptory norm from which there can be no derogation, The very distinguished British Law Lord Bingham of Cornhill, hit the nail on the head when he stated in a 2006 case "...the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure." (House of Lords Judgments -R.v.Jones 92006)UKHL 16)
Every principle of legality has been protected by detailed rules of the ICC assuring fair trial to every defendant. It is unimaginable that any competent Prosecutor would seek to indict anyone for the crime of aggression if the accused might reasonably argue that he couldn't really know that his deeds were criminal. The decoy argument that the defendant can not get a fair trial because the crime of aggression has not been adequately defined is simply not persuasive. No new definition of aggression is needed.
The Relationship of the Court to the Security Council
A more difficult dilemma is posed by the fact that all parties seem agreed that the ICC should be independent yet it is unavoidably linked to the Security Council in the UN Charter as well as the Rome Statute. The International Law Commission has logically concluded that until an act of aggression has taken place, no individual can be held accountable for the crime. Who decides? The 1974 definition of aggression was absolutely clear that, in the last analysis, it was up to the Council to decide whether any act of a State was legally permissible or impermissible. The UN Charter, that binds everyone, charges the Council with responsibility to determine whether an act of aggression by a State has taken place (Art.39). Council decisions are influenced more by political rather than legal considerations. The Permanent Members have special veto rights and this preference is understandably resented by those who do not share such privilege. Fearing a biased Council, less privileged States would like to unlink the ICC from the SC. Consideration has therefore been given to by-passing the Council and turning to other bodies, such as the General Assembly or the International Court of Justice, to decide whether a State has acted unlawfully. Each alternative posed new problems.
In addition to UN Charter mandates, the Rome Statute itself imposes significant restraints on the independence of the ICC. The Security Council has power to halt any ICC proceeding for an indefinite time (Art.16.). The Statute allows any State to divest the ICC of jurisdiction if it is willing and able to try the accused in its own national courts (Art.17.) Thus, if a country adopts the Rome Statute as part of its national criminal code, the ICC can be eliminated from the picture. Furthermore, if a State wishes to be immune from prosecution for aggression, all it has to do is fail to ratify whatever aggression amendment may be enacted. (Art.121). Numerous and complex procedural safeguards and pre-trial filters are additional impediments that may hamper prosecution. It should be recalled that investigations within the borders of hostile States and enforcement of sentences remains largely dependent upon the Security Council. SC involvement with the ICC and the crime of aggression is firm and unbreakable. The frustration of smaller States is fully understandable, but those who still insist upon ICC's "independence" should recognize that they are clinging to something they have already given away. They are unwittingly arguing about protecting the contents of an empty bag.
If the current efforts to by-pass Security Council influence is abandoned by those who mistrust the Council, what can they expect in return? Once it is recognized that SC concerns are already adequately safeguarded by the UN Charter and the Rome Statute itself, it becomes clear that no more protection is needed. Nations that nevertheless insist on additional guarantees inevitably generate suspicion and hostility. On the other hand, forgoing new demands for more restraints on the ICC would earn appreciation and good will instead of fears and resentment by the State Parties. The SC will be seen as a partner rather than an adversary of the ICC - which is as it should be. But logic can be trumped by political considerations that must also be taken into account. As long as the military may be required to intervene with armed force in situations which political leaders proclaim are purely defensive or a humanitarian intervention, commanding officers can hardly be expected to welcome the existence of any international court to test the legality of their military action. There can be no doubt that the best way to protect the lives of those who serve in the armed forces is to deter the crime of aggressive war. Supreme Commander during World War Two, Dwight Eisenhower, after he became President of the United States, warned the nation that "the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law."That conclusion has been echoed by General Douglas MacArthur commander of forces in the Pacific, as well as very many others who have experienced the indescribable horrors of warfare. Unfortunately such views are not universally shared. It is therefore important to try to halt the glorification of war by condemning its atrocities as unacceptable acts of inhumanity that are subject to punishment under the rule of law. How then should one respond if powerful states stubbornly insist upon keeping the courthouse locked with the Council holding the key regarding the crime of aggression?
A Compromise Solution
If, despite all the persuasions mentioned above, some States will not acknowledge that the current terms of the Rome Statute provides all the protection they need against unfair prosecution for aggression, a fall-back compromise position can be considered as a last resort to overcome the impasse. Even if the lock on the courthouse cannot be removed, a way can still be found to open a crack in the sealed door. A clause can be added (in Article 16 or elsewhere) to the effect that no one can be convicted of [charged with] the crime of aggression unless the Security Council has first determined [acknowledged] that a State has committed the act of aggression which is the subject of the complaint. That's just what the Permanent Members have been clamoring for and the most hotly contested bone of contention. The bitter pill can be sweetened, if necessary, by adding such generally accepted mandates as "in conformity with justice and the principles of international law" or references to the fact that any ICC judge of the same nationality as the accused would have to recuse himself and not be involved in the case. Such obligations are already included under Article 21 of the Statute. Even if the Council fails to act, and the aggression issue lies dormant on the Council shelf, potential aggressors will know that they may be held to account. The deterrent effect, no matter how modest, is an improvement over the present immunity. Surely, something is better than nothing.
Where the Debate Now Stands
Many scholarly books and articles have been written by learned professors and others offering good suggestions on how to improve the ICC Statute. The more amendments that are offered for consideration at the Review Conference the more difficult it will be to focus and reach agreement on "the supreme crime" of aggression. The mandate of the Rome Annex was primarily related to the definition of the crime and the relationship between Court and Council. Only when those two issues have been resolved should consideration be given to other improvements. Much progress has been made by the Special Working Group in reformulating a revised definition of aggression. In 1974, the consensus definition was specifically approved as an integrated and indivisible package. Severing various select clauses from the consensus definition runs the risk of inviting protracted debate at the Review Conference. Why take chances when no change in the existing definition is really necessary?
Progress has also been made by the Working Group in articulating alternatives still being debated regarding the relationship between the ICC and the Security Council. The options range from requiring prior Council consent before the Prosecutor can launch an investigation, or requiring authorization from either the Pre-trial Chamber, the General Assembly or the International Court of Justice. None of these alternatives has received general support in the discussions thus far. Any proposed amendment that can gain the required overwhelming acceptance of the Assembly would be a victory if it advances the desired goal of preventing war. The net effect of failure to reach agreement at a Review Conference, now scheduled for 2010, is to continue the dangerous impunity of aggressors and potential aggressors indefinitely - which is the inevitable consequence that ICC members hoped to avoid.
Even if the Security Council fails to live up to its responsibilities to condemn State acts of aggression, the ICC need not remain helpless. There has never been a war without atrocities. Persons suspected of aggression may also be charged with Crimes Against Humanity and War crimes, as well as Genocide, if applicable. Such trials do not require Statutory amendments or advance permission from the Security Council and they will surely attract widespread public attention. Life imprisonment is the maximum penalty for all ICC crimes, including aggression. The ICC Prosecutor, subject to the prescribed controls, could commence his investigation of aggression and his mandated report to the Secretary-General of the UN could be made public. If the Security Council has been derelict in its duties, and the prosecution for aggression is allowed to lie dormant, the Council members would be subject to the public outrage that would follow. The new information revolution offers new opportunities to arouse public opinion in support of the rule of law. The "shame factor" may be the most effective enforcement tool available to the ICC. The court of public opinion is a powerful tool that cannot be ignored or suppressed.
Recommendation and Conclusion
The best way to carry out the mandate of the Rome Annex is to accept an amendment that simply deletes Paragraph (2) of Article 5. Nothing more is needed. The Commentary can explain that, after further detailed deliberation by the open- ended Working Group, the conclusion had been reached by consensus that no further definitions or changes were necessary and all rights of the Security Council under the UN Charter and the Rome Statute are fully respected. If Permanent Members still insist on an added guarantee, a sentence can be added to the effect that no trial for the crime of aggression can be commenced without prior approval [acquiescence] by the Security Council. (The beginning of Article 62, "Place of Trial", may be an appropriate spot.) As noted above, this compromise concession , that may sound outrageous to some, in fact concedes nothing that has not already been given away. What it gains is a slight opening to the ICC that might deter some future aggressors. Is it worth the bother?
Since time immemorial, human history has glorified war as a Divine right leading to conquest, treasure and glory. The most important accomplishment of the Nuremberg trials was the condemnation of illegal war-making as a supreme international crime. That great step forward in the evolution of international humanitarian law must not be discarded or allowed to wither. The creation of many new international courts, including the ICC, despite start-up shortcomings, demonstrates that international law is on the march for the betterment of people everywhere. Making it possible for the ICC to have jurisdiction over aggression, even if it seems remote today, would be a historical achievement of incalculable significance for a more peaceful world in the future.
Origins of the Genocide Convention
By Benjamin B. Ferencz
published: January 2008
source: Case Western Reserve Journal of International Law, Vol 40, Nos. 1 & 2, 2008
Remarks of Benjamin B. Ferencz
I’ll try to summarize some personal observations, experiences, and conclusions with regard to the subject we are supposed to be dealing with. The title of the program is “To Prevent and to Punish.” This particular panel is supposed to address the topic: “The Origins of the Genocide Convention.”
Origins of the Genocide Convention
I had, in my archives, a 75-page report by one of the very active participants--an NGO representative, Nehemiah Robinson--who met regularly with Lemkin and with others who pushed the Convention through.  It contains a description and the precise citation of every single step as the Convention went through the United Nations machinery. You have there the most authentic and clearest presentation of the origins of the structure of the Convention itself. The real origins, however, go back to Nuremberg and what was revealed at the Nuremberg trials about the Holocaust.
There have been atrocities, of course, of somewhat similar magnitude in other parts of the world since ancient times. The extermination of the Incas comes quickly to mind. And without getting into a dispute over whether or not the events in 1915 in Turkey with regard to the Armenians constituted genocide or not, it will be sufficient to say that for the victim or survivors it does not matter much what you call it. Giving enormous atrocities a special name has a special purpose: to stigmatize it, to emphasize how outrageous it is, and to identify it more readily. Genocide was not invented by Lemkin. He merely invented the term. 
The crime of genocide was not within the competence of the International Military Tribunal (IMT). The IMT Charter listed only three major crimes. The most important one was the Crime Against Peace , commonly known as Aggression or Aggressive War. The second, Crimes against Humanity,  was an evolutionary progression from statements made in the past about the dictates of the human consciences and the need for humanity. Of course, that would include crimes of the magnitude of what we now call genocide. War Crimes , the third category subject to jurisdiction of the IMT, had been prohibited long ago. For example, a code of conduct for the Regulation of Armies in the Field had been drawn up during the American Civil War. I will refrain from discussing those things further, however, and instead will describe my personal observations of the IMT.
A Witness to Genocide
I was a witness to what is now called genocide. As a soldier, in the U.S. Army in World War II, after serving about three years in combat, from the beaches of Normandy to the Battle of the Bulge, I was assigned to General Patton’s headquarters to investigate crimes committed in the liberated concentration camps, as well as the murder of downed Allied fliers. I entered Buchenwald and Mauthausen and a host of other camps to collect evidence of the crimes. I witnessed the effects of genocide--dead and starving people lying all over the ground. I could not tell if they were dead or alive. But I do not want to go into the horrors of it. First, we have little time. And secondly, it is far from comprehensible to a normal rational mind that human beings could be treated that way. I saw the consequences and later I got to know the mass murderers and their mentality.
The most important aspects of our subject today--prevention and punishment--require understanding the mentality of the killers. Are they sadistic beasts out for the joy, pleasure, or whatever it may be? They are not. They are people who could be sitting in this room. I will give you a more specific example, but I think we should introduce it with some photographic materials. 
What you are going to witness is the opening of the biggest murder trial in human history; the classic case of genocide where the defendants--twenty-two of the original twenty-four--were accused of murdering over a million human beings in cold blood, including men, women, invalids, and children. This was known as the Einsatzgruppen Trial, and was focused on special extermination squads camouflaged with the name “einsatzgruppen,” which means action groups. When the trial opened in the Nuremberg Courthouse, this is what the audience [heard]:
May it please your Honors. It is with sorrow and with hope that we here disclose the deliberate the deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was a 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. Reports will show that the slaughter committed by these defendants was dictated not by military necessity but by a 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 lange-range plans 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 a foremost instrument of the Nazi Doctrine. 
There you have the opening of what was not a very long trial. It was based upon the official top secret reports we captured, which disclosed exactly how many people each unit had killed, as well as the towns they were from and the name of the commanding officer. I took a sampling and flew from Berlin--where these documents were found--to General Telford Taylor in Nuremberg. Taylor was the Chief of Counsel for the subsequent trials. Later we became law partners and he became a distinguished professor at Columbia University. His initial response to my request that we put on another trial was very hesitant. He simply said, "We can't. We don't have budget for it. It's not been included in the original plans. The Pentagon has not approved it." I pleaded with him. He understood the importance of it and he said, "Can you handle it in addition to your other work?" I said I could, and he said, "You've got it." So, that is how I became the Chief Prosecutor of the biggest murder trial in history. I was twenty-seven years old, and it was my first case.
I rested the prosecution's case after two days. I did not call a single witness but relied on the secret reports of the accused. The defendants came in with their alibis and lies. It took about five months or so to clean up. Eventually, they were all convicted and thirteen of them were sentenced to death. Among the defendants were six SS generals, who were all selected by virtue of their rank and their education. In fact, most of them had doctoral degrees. According to the report of Dr. Rasch (who actually had two doctorates), he had managed to execute 33,771 Jews on September 29-30 of 1941.
To understand the mentality of mass murderers, the most articulate man to listen to was General Dr. Otto Ohlendorf. He was a doctor of economics, father of five children, a handsome young man, and relatively honest. He explained not merely that it was superior orders, but the rationale behind the killings. He said the rationale was self-defense. "Self-defense?" I asked. The Soviet Union was not attacking him. Germany attacked Poland, Belgium, Holland, France, Sweden, Norway; how could he get away with self-defense? "Ja," he said, "We knew that they were planning to attack us and we knew that the Soviets would not be bound by any rules, so in anticipation we launched an anticipatory strike to defend ourselves." That was his principle line of defense, and he claimed: "I couldn't challenge the Head of State, he had more information than I had. I was in no position to do that so I carried out that obligation and I would do it again in defense of the nation."
Most genocides are committed in presumed defense of some particular ideal; whether it be religion, ideology, race, self-determination, or nationalism. These are the things that usually motivate people to go out and kill and prepare to be killed. They justify it as necessary to protect their own conception of what the world should be like. It is important to understand that point. These are not wild, raving maniacs. You cannot kill an idea with a gun; you can only change it by a better idea. And that is something we have to recognize as well.
Changing the Way People Think
As I have indicated, it is very difficult to change the way people think when it relates to such a strongly held, even indoctrinated ideal. It certainly can be done, but it takes a long time and perseverance. Let me give some examples.
First, slavery was the basis for a civil war in the United States because some thought vital interests were at stake--for instance, the economy of the country. No one would make such a suggestion today. Second, the rights of women. Our Constitution provided they could not vote. That has completely changed now.
There are many other illustrations that time does not allow me to list. The idea of sovereignty itself is an obsolete notion. We live in an interdependent world. Take the computer, for example. You push the button and right away you are in China, or India, or someplace else in the world. The ancient notion that a sovereign state can do whatever it wishes within its own borders troubled Justice Jackson and others at the beginning of the IMT trial. Jackson and General Telford Taylor felt strongly that the time for change had come. No nation and no person should be above the law. The whole notion of a sovereign ruler has to change....
Prevention of genocide is the primary goal. Punishment helps to avert vengeance and encourages earlier reconciliation. But punishment itself does not operate in a vacuum. We live in a political atmosphere and we see it everyday and are affected by the circumstances that we punish. At the point when you decide to punish, you have already failed.... [Yet,] punishment is important because it tells the victims we care. We know what happened and we set a historical record that is indisputable.
As incredible as it may seem, there are some people who still deny the existence of the Holocaust. Not in my presence, for their safety. The secret minutes of the January 1942 conference in Berlin, which are on display in a German museum there, show conclusively the specific plans for the "Final Solution of the Jewish Problem," which involved the deliberate murder of about twelve million men, women, and children.  Who were the people figuring this out? They were doctors, lawyers, professors, and people in the SS of the highest intelligence. I know exactly how the Einsatzgruppen commanders arranged to murder many thousands of children. They bashed the infant's heads against a tree to save ammunition. There are other ways, but I will not go into them here.
What You Can Do About It?
What can you do about it? You can do a lot about it. For an example of what one individual can do, look to Lemkin. I thought he was a "nuddnick" (pest), but I took him seriously. He gave me his book. And for that reason, in that opening minute you heard of the Einsatzgruppen Trial, although genocide was not listed as a crime in either the IMT Charter or the Control Council Law, I called it genocide. It was the classic case of genocide. And I was thinking of Lemkin when I did that. There are many other individuals who had an impact on the future. Arvid Pardo of Malta argued that the seafloor was the common heritage of mankind.  I was in Hamburg last week, and there we have an imposing Law of the Sea Tribunal, to settle maritime disputes by law. I could list many instances where one individual made a difference regarding the environment, the Law of the Sea, and other major advances. A.N.R. Robinson of Trinidad and Tobago put the idea of an International Criminal Court on the agenda of the United Nations and became one of its most ardent champions. When I went to school there was no such thing as international criminal law. There were not such things as international courts prior to Nuremberg. The progress has been fantastic.
This is a revolution that is taking place and it is all being supported by the new miraculous means of communication. The young people can save the world by new systems of education. It begins in the cradle. And given enough determination, within one or two generations, or maybe sooner, we will have created a more humane world of the sort that we tried to create at Nuremberg and which Lemkin stood for. If you have enough drive and persistence and keep with it, you can change the world. And do you have an obligation to change it? I think you do. I think we owe it to the memory of those who perished. We owe it to the children that some of you have or will have to never stop trying to make this a more humane and secure world.
34. Nehemiah Robinson, The Genocide Convention: Its Origins and Interpretation (World Jewish Congress, 1949) reprinted in 40 Case W. Res. J. Int’l L. 315 (2008).
35. Lemkin, Axis Rule in Occupied Europe, supra note 4, at 79.
36. Charter of the International Military Tribunal in the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, art. 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
39. At this point in his remarks Mr. Ferencz showed a video clip of him delivering his opening statement at Nuremberg. See infra note 40.
40. Video: Einsatzgruppen Trial: U.S. Prosecution Opens Case Against Einsatzgruppen Members (National Archives-Film 1947).
41.Besprechungsprotokoll (Jan. 20, 1942), available at http://www.ghwk.de.deut.protokoll.pdf, translated in Protocol of Conference (Jan. 20, 1942), available at http://www.ghwk.de.engl/Prot-engl.pdf". See also House of the Wannsee Conference: Memorial and Educational Site (last visited Feb. 8, 2008).
42. See Press Release, U.N. Information Service, Dr. Arvid Pardo, 'Father of Law of Sea Conference' Dies at 85, in Houston, Texas, U.N. Doc. SEA/16l9 (July 16, 1999). See also Div for Ocean Affairs and the Law of the Sea Office of Legal Affairs, The Law of the Sea: Concept of the Common Heritage of Mankind, Legislative History of Articles 133 to 150 and 311(6) of the United Nations Convention on the Law of the Sea 8 (United Nations 1996).
Enabling the International Criminal Court to Punish Aggression
By Benjamin B. Ferencz
published: March 2007
source: Washington University Global Studies Law Review, Vol. 6, No 3 (2007)
According to Article 5 of its governing Statute adopted in Rome in 1998, the International Criminal Court in the Hague (ICC) cannot exercise its jurisdiction over the crime of aggression until amendments are adopted 1-defining the crime and 2- setting out the conditions, consistent with the United Nations Charter, under which the Court will act. This essay analyzes the problems and suggests solutions to meet the stipulated requirements.
I- DEFINING THE CRIME OF AGGRESSION
A- Brief Historical Review:
(1) The Nuremberg Precedents
On August 8, 1945, after intensive negotiation by very distinguished jurists representing the United States, France, the United Kingdom, and the Soviet Union, an agreement was reached in London in which these victorious powers of World War Two, "acting in the interests of all the United Nations," drew up the Constitution for a new International Military Tribunal (IMT) "for the "just trial and punishment of major war criminals of the European Axis." The IMT Charter, was endorsed by 21 nations with diverse systems of jurisprudence. The first offense within the Court's jurisdiction was described as
Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
Justice Robert M. Jackson, on leave from the US Supreme Court, was the principle architect for the trial. He was designated by President Harry Truman to be Chief Prosecutor for the United States. From the historical record and many existing treaties, such as the 1928 Kellogg Pact outlawing the use of force, Jackson became convinced that "No political, military or other considerations, excuse going to war." "Whatever grievances a nation may have, " he said, "warfare is an illegal means for settling those grievances." After several drafts were debated, Jackson concluded that, rather than listing the treaties prohibiting the use of force, it would be better to leave it to the judges to consult the sources. Professor Andre Gros, who represented France, noted that "there are plenty of documents in actual international law defining aggression" The British, eager to avoid political debates, were hesitant. The Soviets argued that the one who fired the first shot was obviously the aggressor and the judges should focus on punishing those responsible. The final text was the best compromise that could be reached.
In his opening statement to the IMT, Jackson emphasized: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.") In its final and comprehensive Judgment in October, 1946, the Tribunal held that to initiate a war of aggression "is not only an international crime; it is the supreme international crime... It contains within itself the accumulated evil of the whole." Rejecting defense arguments that it was applying ex-post-facto law, the Tribunal held that the IMT Charter was not an arbitrary exercise of power by victorious nations but "the expression of international law existing at the time of its creation." There was nothing unfair, said the Judges, about not having a more precise definition of the crime of aggression; to allow the accused to remain immune would have been unfair. "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." Leading German officials were found guilty of planning and waging aggressive wars against 10 nations. Five of the 22 defendants were sentenced to death. Jackson reported to his President: "... at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right."
The legal principles of the IMT Charter and Judgment - including the brief definition of aggression - became foundation stones for later trials by the Allied Powers in Japan and other countries. A dozen "Subsequent Proceedings" conducted by the US in Nuremberg were authorized by quadripartite Control Council Laws that adopted the IMT definition of Crimes against Peace but inserted one additional illustration: "Initiation of invasions of other countries..."The 1946 Charter of the Military Tribunal for the Far East adopted the exact wording of the IMT Charter regarding aggression, adding only a clarifying clause that a war of aggression could be "declared or undeclared." The Tokyo Judgment in November 1948, finding defendants guilty of the crime of aggressive war, conformed completely with the definitions laid down in Nuremberg. Nations were beginning to live up to Jackson's hope that a firmer enforcement of the laws of international conduct would "make war less attractive to those who have governments and the destiny of peoples in their power."
(2) UN Searches for a Consensus Definition of Aggression
At its first session, on 11 December 1946, the General Assembly (GA) of the United Nations established Committees for the Progressive Development of International Law and its Codification, as required by the UN Charter. It also affirmed the principles of international law recognized by the IMT Charter and Judgment. As "a matter of primary importance," the Assembly called for the formulation of a general Code of Offenses against the Peace and Security of Mankind, or of an International Criminal Code, based on the Nuremberg precedents. Furthermore, Genocide, on any grounds, was affirmed as a crime under international law for which principals and accomplices would be punishable.
After considerable discussion by UN Delegates, and little progress, the dual problems of drafting the Criminal Code and creating the related Criminal Court were referred to the International Law Commission (ILC) composed of many legal experts from different parts of the world. In 1950, the Commission formulated the Nuremberg Principles and simply noted the absence of a precise definition for a "war of aggression." In 1952, a Special Committee on the Question of Defining Aggression was formed b the GA. Until there was a Definition, the Criminal Code would be incomplete, and without a Code the Court could not function. Definition, Code and Court were thus linked and made dependent upon each other. The problems were interconnected but opinions on how to resolve them remained sharply divided. By the end of 1954, the chilling winds of the cold war placed Definition, Code and Court into the deep-freeze.
New Committees reported annually to the growing number of UN Member States. Extended debates were continued in the Assembly's Sixth (Legal) Committee. In 1967, the Special Committee was expanded to 35 Members representing all legal systems. Most nations agreed that an international Criminal Court would be highly desirable but many doubted that it was realistic or attainable. Some powerful countries really didn't want to yield any portion of their sovereignty to any untested new institutions. Nations were so busy committing or contemplating aggression that they had no time, or desire, to define the crime. The high moral and legal principles of Nuremberg were ignored as aggression continued to be committed with impunity by nations large and small. The best that could be done was to continue indecisive discussions or postpone problems that could not be resolved. The world lacked an International Criminal Court competent to hold to account the perpetrators and planners of the supreme international crime. War-making, instead of being condemned as criminal, was still glorified as heroic. The cost in human lives and suffering was incalculable.
The original General Assembly resolutions of 1946, inspired by Nuremberg, envisaged the creation of a code of international offenses, including the supreme crime of aggression, to be enforced by a new International Criminal Tribunal. After over a quarter of a century of contentious debates by lawyers, scholars and diplomats, the UN Special Committee to Define Aggression finally arrived at a consensus definition that was accepted by the General Assembly on 14 December 1974 as GA Resolution 3314. The compromises obtained after many years of stalemate left much to be desired. The Preamble called upon States to refrain from all acts of aggression. It then, recommended, as though by afterthought, that the Security Council (SC) should "as appropriate take account of that Definition as guidance..." It made no reference whatsoever to an International Criminal Court. It did not address the question of criteria for individual culpability. Delegates seemed to have forgotten, or chosen to ignore, the General Assembly mandates of 1946.
Article 1 set forth a generic definition:
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 United Nations, as set out in this Definition.
The following seven articles contain illustrations of acts of aggression, which "regardless of a declaration of war," include such traditionally war-like acts as invasion, annexation, bombardment, blockade, and attack. Art. 2 requires acts to be "of sufficient gravity" but it also allows the Security Council "in conformity with the Charter" to determine that there was no aggression "in the light of other relevant circumstances." On the other hand, the enumerated acts are not exhaustive and the Council may also determine that "other acts constitute aggression." In short, it was left to the Council to decide whether aggression by a State has occurred or not. Repeated reference to the UN Charter was intended to make the pill more palatable.
Art. 5 (reminiscent of Jackson) provides::
No consideration of whatever nature, whether political, economic, military or otherwise, may serve as justification for aggression.
Art. 7 was an exculpatory paragraph designed to exempt from a charge of aggression
peoples struggling for "self-determination," and "freedom from "alien domination"... "in accordance with the principles of the Charter."
The UN Charter itself was ambiguous. Article 2(4) sought to restrain the use of force yet Article 51 allowed an undefined "inherent right" of self-defense against an armed attack. It was little noticed that when war-making ceased to be an inherent right, unrestrained self-defense also ceased to be an inherent right. The contradictions and vagaries entwined throughout the Charter and the consensus definition opened the door to conflicting interpretations. No court existed that was competent to enlighten nations and hold wrongdoers to account. The Permanent Members of the Council, particularly the US and the UK, with the right of veto, would not have accepted any definition of aggression without retaining the last word in determining when aggression by a State had occurred. Powerful nations remained unwilling to yield their power, and weak nations had no power to change it.
No legal code can be effective unless the society in which it operates is prepared to be bound by common restraints. With nations in different stages of social, political and economic evolution, it proved impossible to obtain clear agreements defining the legal limits of permissible force. The consensus gave some indicators of conduct that should have been prohibited. What was produced was a mere guide recommended for consideration by the Council. Even that weak consensus became acceptable only after inserting exculpating clauses of such dexterous ambiguity that parties could interpret the document in ways designed to justify their own illegal use of armed force. The wording left no doubt that the 1974 consensus definition of aggression was not binding on anyone. It reflected the fears, doubts and hesitations of its time; yet remained a cautious and faltering step toward a more rational world order.
(3) The International Law Commission Defines Aggression
The wheels of justice may grind slowly but law gradually changes to meet the needs of a changing world. As it began to become apparent in the 1990's that an International Criminal Court might become a reality, the General Assembly stepped up its pressure on the International Law Commission to come forward with a definition of individual culpability for aggression that would meet the standards of criminal law. Decision makers had to give fair notice that those responsible for the illegal use of massive force would no longer be immune from prosecution. The ILC had, for years, been deliberating and trying to agree upon general Statutes for an International Criminal Court as well as a separate Code of specific international crimes. In September 1994, the Commission completed its work on a draft Statute for an ICC. That draft became the subject of intensive debate by various UN Preparatory Committees planning for a Conference of Plenipotentiaries that might finally resolve the differences. In July 1996, after more than 15 years of discussion, the ILC also completed its work on the Draft Code of Crimes.
Article 16, dealing with the Crime of Aggression stated:
An individual, who as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, shall be responsible for a crime of aggression.
The ILC Commentary made plain that the 34 learned members of the Commission felt that, fifty years after Nuremberg, it would be retrogressive not to include aggression along with the three other crimes over which the ICC was to have jurisdiction. ILC's brief definition is consistent with the Charter and Judgment of the Nuremberg Tribunal. Only an individual who played a decisive role as leader or organizer could be culpable and only if he actively participates (which implies intentionally and knowingly) in planning and preparation of aggression. States can act only through individuals. The violation of the law by a State, said the Commission Report , "is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression." Thus, a successful prosecution would require proof that a State had committed the act of aggression, as well as proof that the individual defendant met the stated requirements for personal criminal responsibility.
(4) What Happened to Aggression at the Rome Conference in 1998
The ILC drafts became the basis for intense negotiations. By the time the Prep/Com met in Rome in the summer of 1998, there were still about a thousand points of difference that had to be reconciled regarding the structure and competence of an ICC. The crime of aggression was probably the most obdurate and difficult point of contention. Many States advanced many reasons why aggression should not be included in ICC's jurisdiction. The US and UK were among those that were hesitant about accepting new legal restraints that might hamper their freedom of military or humanitarian intervention. Arab States seemed eager to retain protections they perceived in the exculpatory clauses of the 1974 consensus definition. Many others, including the European Union and about 30 "nonaligned" countries, argued that without including aggression, the ICC would be unacceptable. There was a stalemate.
After five weeks of hectic effort at the Diplomatic Conference in Rome, the UN was able to announce on 17 July 1998, that for the first time in human history, a permanent International Criminal Court had been created. It was a bit of an exaggeration since the treaty still needed at least 60 ratifications before it could go into effect. Article 5 listed the crime of aggression, together with genocide, crimes against humanity and war crimes, as the only crimes within the ICC's jurisdiction. But, it was stipulated that the Court could not exercise its jurisdiction with respect to the crime to aggression until certain new provisions were adopted. Agreement on a definition of aggression was needed as well as "setting out the conditions" under which the ICC could exercise its jurisdiction with respect to the crime. The required additions had to be "consistent with the relevant provisions" of the UN Charter. Any amendments to the Rome Statute required approval by 7/8th of the State Parties and none could be considered for at least 7 years after the Statute went into effect. Lacking ability and time to resolve differences, the problem of aggression was thus sent back to committee and placed on the back burner.
(5) The Assembly of State Parties Considers the Crime of Aggression
Having received more than the required number of ratifications, the Rome Statute went into effect on July 1, 2002. It was a very historic occasion. The first Assembly of State Parties (ASP) appointed new Preparatory Commissions to continue debates about the unresolved problems concerning aggression. Many dissents were heard; few agreements were reached. In due course, the ASP established a Working Group (WG) to seek reconciliation of conflicting views. Although not specifically required by the wording of Article 5, WG meetings at Princeton and the Hague, began to consider improvements or clarifications of several old problems and principles of law that still seemed ambiguous. It should have come as no surprise that lengthy discussions produced few agreed alterations on points that had been debated for decades. Despite the merits of several carefully prepared scholarly submissions, the prospects of getting near- unanimous concurrence were not particularly promising. It seemed to be overlooked that the test was not whether a suggested change was better, but whether it would be overwhelmingly accepted at an amendment conference that was on the horizon.
B- A COMPROMISE PROPOSAL: A COMPREHENSIVE DEFINITION
In response to the first mandate of Art. 5. the following text is suggested for consideration by the ASP:
Because the forms of aggression may be so variable and unpredictable that it has not been possible to reach universal agreement on a more precise definition of the crime, it is proposed that the following amendment be adopted:
In determining whether an individual has committed the crime of aggression, the ICC
judges shall apply the following:
1- Relevant provisions of the UN Charter;
2- The Charter and Judgment of the International Military Tribunals as affirmed by the UN General Assembly in 1946;
3- The consensus definition of aggression in GA Res. 3314 of 1974;
4- The definition of aggression by the International Law Commission in 1996;
5- Rules for interpreting international law as laid down for the International Court of Justice established by the Charter of the United Nations;.
6- Relevant judicial decisions by other competent international criminal tribunals;
7- National laws and decisions relating to the crime of aggression;
What is here proposed relies only on declarations and precedents drawn verbatim from the UN Charter, the Statutes of the International Court of Justice, the Nuremberg precedents, General Assembly resolutions, recommendations of the International Law Commission and legal principles that have already been generally accepted. Many experts agree that the crime of aggression has already been recognized as an international common law crime. It is not necessary to try to invent a new statutory definition beyond what is prescribed in the official instruments listed above. Since nothing new is being proposed, it is hoped that nations will be willing to accept what they have already accepted and move forward from there.
The consolidated comprehensive definition meets every principle of legality and fairness by putting potential aggressors on notice that they tread a very perilous path. Since deterrence is the primary goal of criminal law, an all-inclusive definition should not be objectionable to those who are prepared to be bound by the rule of law. Of course there is room for improvement of wording and substance, as there is in every great historical document, but the more amendments that are now proposed, the greater will be the difficulty of getting universal acceptance of alterations. Competent judges must be relied upon to reach wise decisions or suggest legislative changes should they appear necessary in the future. In the meanwhile, unless the ICC is given authority to act on the crime of aggression, malevolent or misguided leaders may continue to commit aggression with impunity.
II- CONDITIONS FOR ICC JURISDICTION OVER THE CRIME OF AGGRESSION.
As noted, Article 5 of the Rome Statute also stipulated that before aggression could be prosecuted by the ICC, an amendment would have to be adopted "setting out the conditions under which the court shall exercise jurisdiction with respect to this crime." Furthermore, "Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."
A- Provisions of the UN Charter Relevant to Aggression
The United Nations system of collective security, as originally perceived, was relatively simple. Peace-loving nations would agree upon certain fundamental principles for a more humane, just and tranquil international society. Nations would disarm and an international military force would be created for their protection. A few of the most powerful States, acting as agents for the others, would be entrusted with enforcement. The UN Charter that was signed in San Francisco on 24 June 1945 made no reference to criminal prosecutions. Justice Robert Jackson and allied jurists were then negotiating in London for the IMT Charter that was accepted on 8 August 1945. The trial against major war criminals began three months later and Judgment was rendered in October 1946. When the first General Assembly of the UN met in New York at the end of December, 1946, it affirmed the Nuremberg principles and promptly began to move toward the creation of a permanent international criminal jurisdiction to close the gap in the international legal order.
To gain widespread acceptance, the UN Charter had to include compromises, inequities and inconsistent principles expressed in language subject to various interpretations by nations with conflicting interests and perceptions. The Preamble, in the name of "We the Peoples," expressed the determination "to save succeeding generations from the scourge of war." (The undefined term "war" appears nowhere else.) It also reaffirmed faith in "the equal rights...of nations large or small." But some nations were more equal than others. Those major powers that had won the war (US, UK, USSR, China and France,) felt entitled to reserve unto themselves a right to veto any future enforcement action that might require their troops to return to battle. Without such a privileged entitlement, the US would surely not have been politically able to muster the 2/3 Senate majority needed to ratify the UN treaty. The Security Council, with its unfair veto rights, was charged with the duty of determining "the existence of any threat to the peace, breach of the peace, or act of aggression" and to decide on measures to restore international peace and security. The lofty Charter plan could only be effective if those who were allies in war would remain allies in peace.
Unfortunately, it didn't quite work out that way.
The problem of agreeing on a Code of international crimes and a Court to enforce the Code was wending its way slowly through the United Nations when an unanticipated event brought about a sudden and dramatic transformation. In 1991, civil wars broke out in Yugoslavia as rival ethnic groups sought sovereignty and independence. It was widely reported that mass rapes were occurring and captives were treated under conditions reminiscent of Auschwitz and Dachau. It did not take the Security Council long to set up a special tribunal, in 1993, to bring to justice those who had committed such atrocities. A similar temporary tribunal of very limited jurisdiction was also created by the Security Council in 1994 to cope with genocide in Rwanda where some 800,000 innocent civilians were brutally murdered. Since these were internal conflicts, the crime of aggression was not involved, but the need for a permanent international criminal court became increasingly obvious.
As the plans for an ICC began to take shape, it became clear that there were two separate, but linked, problems that had to be resolved before the crime of aggression could be punished. The act of aggression, requiring a high threshold of violence to be of concern to the international community as a whole, could only be committed by a State or similar entity. Yet, as noted at Nuremberg, crimes are committed by individuals and not by abstract entities. Only after prohibited acts occurred, could individuals responsible for the illegal deeds be held to account before a criminal court. The act of aggression by a State and the crime of aggression by an individual were mutually interdependent. You could not have one without the other and the distinctions were by no means clear. The International Law Commission had been studying the problem of aggression for years. The "independent" experts, including nationals from major powers, finally concluded, in 1996, that a determination that an act of aggression by a State had occurred was an absolute pre-requisite before any individual could be convicted of the crime of aggression. This meant that, as long as the Security Council first had to decide whether an act of aggression had been committed by a State, the Permanent Members could, in effect, control whether anyone could stand trial for commission of the crime. It was not clear how the ICC could maintain its desired judicial independence regarding the crime of aggression if it had to await a prior determination by another body. And there's the rub!
The Charter vested in the Security Council "primary responsibility for the maintenance of international peace and security" and all Members agreed to carry out the Council's decisions. (Art.24 and 25) To be sure, the Council was not given a completely free hand. It was obliged to act "in conformity with the principles of justice and international law" and "in accordance with the Purposes and Principles of the United Nations." (Art. 1 and 24.) Unfortunately, ideological and other differences soon caused some principles of justice and international law to be subordinated to political considerations. The Council fell into disrepute - particularly among smaller States that often felt like little fish being eaten by big fish. The distrust led many States to seek ways of avoiding Council controls when it came to punishing aggressors.
B- Assuring the Independence of the Criminal Court
It was noted that, although the Security Council had primary jurisdiction to determine if an act of aggression by State had occurred, that prerogative was not exclusive. The General Assembly also had a role to play. When North Korean troops, aided by China, invaded South Korea in 1950, the Council seemed paralyzed by the absence of the Soviet representative who had walked out in protest. The US declared that the attack was "an act of aggression." A US Army counter-attack was mobilized under a UN flag. The Assembly, in its "Uniting for Peace" resolution found that "...China, by giving direct aid and assistance to those who were already committing aggression in Korea... has itself engaged in aggression in Korea." Economic sanctions were authorized by the General Assembly.
There were other illustrations that where there was a political will, there was a way to interpret, or reinterpret, the Charter to achieve a desired goal. For example, it became standard practice of the Council to treat abstention as a positive vote, even where the Charter specifically required an affirmative vote. Recently, new concepts like the "duty to protect" held forth the possibility that moral arguments could justify humanitarian interventions requiring the use of force even though no prior Security Council authorization was obtained. Noting the flexibility of the Charter, it is argued that when the Council fails to act, the General Assembly can unite and take measures in the cause of peace. If the GA is competent to authorize economic and military sanctions in response to acts of aggression by a State, why should it not be permissible to authorize a criminal trial against aggressors? Whether it is advisable to stretch the Charter in that direction is another question. The General Assembly is not a judicial body and may be even more politically oriented than the Security Council. There is not much advantage in jumping from the frying pan into the fire.
A better suggestion is that the International Court of Justice in the Hague (known as The World Court) could, on request from the GA, issue an Advisory Opinion that might be more acceptable as a legal determination that an aggressive act by a State had occurred. The ICJ had issued Opinions regarding the legality of a US naval blockade of Nicaragua, the crime of genocide, and the legality of nuclear weapons. There is no reason in principle why the ICJ could not render an objective juridical opinion concerning the legality of an act of aggression by a State. In its deliberations, the ICJ would, of course, take into consideration whatever arguments are presented in customary written memorials to justify the alleged aggression by the nation concerned. If, on the basis of an ICJ Opinion, the ICC Prosecutor decides, and the panel of ICC judges agrees, that those responsible for the act should be indicted personally for the crime of aggression, there is no injustice to the accused since, on a criminal trial, the defendants can always present their exculpatory arguments and evidence to the ICC. There is nothing to prevent the ICC judges, indeed it is their duty, to acquit the accused if they are convinced that fairness and justice so requires.
Referrals from the ICC to the General Assembly, or the ICJ, or any another international agency such as Courts of Human Rights, add costly and undesirable time-consuming procedures. Victims cry out, and not without cause, that justice delayed is justice denied. The ICC is a self- contained entity governed by a treaty signed by over a hundred nations. It should not be made dependent upon other organizations outside its control. But there is no assurance that substitute agencies would be willing or able to accept such delicate and burdensome assignments, directly or indirectly, from the criminal court. Efforts to bypass the Security Council reflect the frustration and desperation of many small States that have been waiting for very many years for legal protection against aggression. They are now demanding an end to the impunity that has encouraged aggressors to defy the rule of law. The Security Council's vested role under the UN Charter is an obstacle. Experience indicates that fundamental Charter alterations that are badly needed are nowhere in sight. Misinterpreting or stretching the law is a dangerous practice. A way can be found to respect the Charter, as correctly interpreted by the International Law Commission, and yet bring to justice those leaders responsible for the supreme international crime.
C- Alternative Ways to Achieve Justice
It should be recalled that national courts will, under the Rome Statute principles of complementarity, always be given priority in trying their own nationals for any crime within the jurisdiction of the ICC. If the national State is willing and able to provide a fair trial, the accused will never be judged by the ICC. The nature of the act and crime of aggression is such that nations are not likely to try their own national leaders unless there has been a change of government. Even if the International Law Commission conclusion is correct, that there can be no prosecution by the ICC for the crime of aggression until there is a Security Council determination that an act of aggression by a State has taken place, it does not mean that the ICC will be indefinitely paralyzed. There are 2 things that can be done to bring the wrongdoers to timely justice.
(1)- Public Reports by the ICC Prosecutor
The ICC Prosecutor, subject to the statutory pre-trial judicial controls, can start an investigation of the crime of aggression and issue a Report of his findings. If the evidence so adduced is insufficient to support a finding of guilt, the accused should be released. If the opposite is true, the Report should be made public. If the issue has been referred by the ICC to the Security Council for a determination regarding the act of aggression by the State involved, and there has been no response, the release of the Report will add additional pressures on the Council to react promptly. An attempt by the Council to halt an ICC investigation for a renewable 12-month period, as the Statute allows, must be related to the Council's peace-keeping responsibilities. It should not be forgotten that the SC is also bound by UN Charter obligations to respect principles of justice and international law. The ICC would be justified in ignoring Council decisions or actions that clearly violate these Charter mandates. Admittedly, the ICC, like the ICJ and other human rights courts, has no independent enforcement power. Abuse of the Council's Charter responsibilities for political reasons is bound to encounter public outrage. The "shame factor" may hasten the Council's decision regarding the legality of the acts under consideration. In the final analysis, the rule of law can only be sustained by the fairness of its procedures and the judicial pronouncements that earn the respect of victims and observers. A Council that shows contempt for the Court will bring contempt upon itself.
(2)- Prosecute for Other Crimes in addition to the Crime of Aggression
It has become customary in war crimes prosecutions that the indictment to contain a number of multiple crimes based on the same facts. Nuremberg defendants were indicted, and convicted, for the Common Plan or Conspiracy to commit Crimes Against Peace (aggressive war), War Crimes and Crimes Against Humanity. It would be perfectly fitting for the ICC Prosecutor to charge the accused with the Crime of Aggression, and, in addition, with War Crimes, Crimes against Humanity and even Genocide if the evidence so warrants. The Prosecutor has the burden of proof at the trial. He need not remain helpless and immobilized while waiting for a Security Council determination that an act of aggression has taken place. Nor need he wait for the General Assembly or the ICJ, or any other body that may have been asked for an opinion that may take years to reach. The trial can proceed promptly on any or all of the other three related charges. These are all crimes within ICC's statutory jurisdiction with no pre-requisites that require Security Council intervention. The maximum penalty for genocide, crimes against humanity, war crimes or aggression are all limited to a term of life imprisonment. There is no affront to the victims, or benefit to the accused, if the aggression charge remains pending, if necessary, while the other counts of the indictment proceed to judgment and sentence.
III- SUMMARY AND CONCLUSION: The Importance of Criminalizing Aggression
The most important achievement of the Nuremberg trials, after over 40 million people had died in World War Two, was the confirmation that war-making was no longer a national right but had become, and henceforth would be condemned, as an international crime. That great historical step forward toward a more rational and humane world order under law must not be allowed to perish.
The distinguished jurists on the International Law Commission agreed that the crime of aggression should be actionable by the ICC, even without a more detailed definition. Adopting a broad consolidated definition of the crime of aggression, to reflect norms that have already been universally accepted, is a clear demonstration that illegal war-making will no longer be tolerated. It should be acceptable to those concerned about giving fair notice to the accused.
The use of armed force is only permissible when approved by the Security Council in accordance with the UN Charter that binds all nations. The Charter mandates must be respected, even when Council responses seem inadequate. Illegal deeds cannot be corrected by illegal means. In the long run, human lives are endangered and not protected when the rule of law is ignored. The Charter principles calling for justice under international law can still be upheld by other means without waiting for SC confirmation regarding the act of aggression. The Prosecutor can proceed to trial promptly on the related war crimes charges that are clearly within the independent jurisdiction of the International Criminal Court.
To be sure, punishing aggression will not, by itself, eliminate wars but it is an important component of a vast matrix which must encompass social justice, disarmament, new institutions and a system of effective enforcement. If peace is to be protected, it is essential that all national leaders be made aware that those individuals responsible for the crime of aggression will be held criminally accountable before the bar of international justice - no matter how long it takes.
Unauthorized war-making is neither legal nor inevitable. Humankind has glorified wars since time immemorial. Admittedly, it will take a very long time to reverse ingrained habits of thought and substitute a "peace ethic" for the prevailing "war ethic." Unpredictable events often determine the course of history. Many great military leaders have come to recognize that nations can no longer rely on the use of force but must turn to the rule of law if they are to survive. New forms of violence and terror pose increasing threats that emphasize the need for new thinking. Advanced technologies offer improved ways to educate the public that law is better than war. As part of the forward movement toward a more just and humane world, those responsible for aggression must learn that they will no longer be immune, but will be held accountable by an International Criminal Court acting in the name of all peace-loving nations.
BENJAMIN B. FERENCZ, J.D. Harvard Law School, 1943
Former Prosecutor at the Nuremberg war crimes trials
A World of Peace Under the Rule of Law: The View from America
By Benjamin B. Ferencz
published: March 2007
source: Washington University Global Studies Law Review, Vol. 6, No 3 (2007)
Thank you very much for that brief introduction. I’ve had twenty-five speakers ahead of me describe everything there is to know about Nuremberg. I have to find something different that you haven’t heard before. So let me begin by confessing that I am more connected to Nuremberg than anyone else in this room. My wife and I had four children born in Nuremberg. A sample is here in my son Donald.
I shall try to give you some indication of what it was like for an American in Germany during and immediately after the war. First, I’m going to ask Professor Safferling, who has carefully explained past and present attitudes in Germany, to do me a personal favor. You may have noticed that he comes from Erlangen, which is near Nuremberg. I entered Erlangen for the first time when I was serving as a war crimes investigator in General Patton’s headquarters. We received a report from the London Central Registry of War Crimes and Security Suspects that doctors in the Erlangen Hospital were suspected of having conducted medical experiments on Nazi victims. I strapped on my .45 caliber pistol, jumped into my Jeep and raced to Erlangen. I found the trembling Chief Doctor and demanded that he show me through the hospital since he was accused of illegal medical experiments. A cursory search revealed nothing incriminating. The U.S. Army was moving forward rapidly and I couldn’t tarry. In anticipation that I might return later, I gave him an order: “I’m placing you under house arrest. You are not allowed to leave here unless I give you my permission.” He responded in German with a crisp “Yes, Sir!” as he snapped to attention. I left. Well . . . I must admit that I never went back. What I want to ask Professor Safferling to do when he gets home, is to go to the hospital and if he sees an old doctor, a very old doctor, standing at attention, please convey my apologies and tell him he can go home now.
The program says that I am supposed to talk to you about a world of peace, the rule of law, and the view from America. In order to have a peaceful world, you need three basic components. You need laws to define what is permissible and impermissible. You need courts to settle disputes amicably or to hold wrongdoers accountable. And, you need a system of effective enforcement. Those three components—laws, courts, and enforcement—are the basic foundations for every society, whether it be a city, or a town, or a village, or a nation, or the world. You can imagine what the world would look like here in St. Louis if you didn’t have laws, or courts, or enforcement. You’d have total chaos. And in the international arena, all of these component parts are very weak. The laws are uncertain and ambiguous. International courts, such as the International Court of Justice, have no independent enforcement powers. The new International Criminal Court (“ICC”) and other similar international tribunals are all part of a burgeoning evolutionary process, as is evident from Professor Tom Franck’s prescient observations regarding state responsibility. We live in a world that is just beginning to be put together on an international level that contains the vital component parts for a more civilized world community. Insofar as we succeed in putting the missing parts in place, the world will be more tranquil. To the extent that we don’t have those components, the world will be less peaceful.
The most important point of Nuremberg was the conclusion that aggressive war, which had been a national right throughout history, was henceforth going to be punished as an international crime. That was a revolution in thinking. We’ve always had wars, and many would say that warfare was inevitable and immutable as part of some Divine eternal plan—“The big fish eat the little fish.” Well, Justice Jackson said, “No more!” Jackson was very explicit when he wrote to President Truman saying the time had come when we must hold accountable those leaders who hold the reins of power, so they will know that they will be answerable for their evil deeds, and warfare is an evil deed. It’s an evil thing. And they agreed that no matter what the reason, no matter what justification is offered, warfare would not be tolerated. International disputes could be settled by peaceful means only. That was the main point of Nuremberg. I was a combat soldier in World War II—from the beaches of Normandy to the final Battle of the Bulge. I know about war. Jackson’s call for a world of peace under the rule of law deserves universal support.
Nuremberg also condemned Crimes Against Humanity; these principles were articulated after the First World War. Since the American Civil War, there were legal prohibitions against certain forms of criminal behavior on the battlefield. It’s illegal, for example, to use poison gas or shoot your enemy with a poisoned arrow. But, it’s not yet illegal to be the first to drop a nuclear bomb on a city. Philippe Kirsch presided over the Rome Conference where the delegates from India and Pakistan, both possessing nuclear weapons, proposed that the first use of such weapons should be punishable. There was no way that good idea would be acceptable to the great nuclear powers—particularly the United States. So there is still a long way to go before we get civilized. In fact, the current U.S. administration insists that, although we possess and have used such weapons, other nations that plan to acquire such weapons must be stopped, by unilateral force if necessary.
The first meeting of the U.N. General Assembly passed three resolutions to follow up on the Nuremberg trials. They affirmed the Charter and Judgment of the International Military Tribunal (“IMT”) and called for a codification of international criminal law based on the Nuremberg precedents. Committees were formed to prepare for an international criminal jurisdiction to enforce the new code. That was 1946.
I was young then. Forty years later, the International Law Commission came up with a code of crimes. It confirmed that aggression is a crime and that the definition that proved acceptable to Justice Jackson and all the IMT judges was adequate. Germany’s attacks against her neighbors were so flagrant and such a flagrant violation of existing treaties that it was clearly criminal. Aggression is listed as a crime in the Rome Statute for the ICC, along with genocide, war crimes, and crimes against humanity. Unfortunately, the tribunal cannot act on the crime of aggression until certain conditions have been met. One: they have to redefine it. Two: they have to agree upon the elements of the crime, whatever that means. And three: practically all state members of the court have to agree. When and whether that will happen remains to be seen. The sad fact is that many nations are not yet ready to give up their right to go about killing innocent people if they think that it is necessary to protect their own national interests. That’s what war is all about. Today wars kill ten civilians for every person in uniform. That’s not very nice at all. The lesson that we tried to teach at Nuremberg doesn’t seem to have been absorbed very well.
In fact, it was largely due to the skill of Chairman Philippe Kirsch that aggression was even listed as a crime in the Rome Statute for the ICC. Jackson’s greatest contribution had to be pushed to the back burner until the other prescribed preconditions were met. Until then, the ICC cannot act on what the IMT called “the supreme international crime.”
THE RULE OF LAW- TWELVE SUBSEQUENT TRIALS AT NUREMBERG
Something which hasn’t been discussed here—much to my surprise— were the twelve subsequent trials at Nuremberg. Everybody knows about the IMT and the role of Justice Jackson. He was a great man and it was a great trial. He deserves all the credit that we have all been giving him. But there were twelve subsequent trials after Nuremberg. General Telford Taylor, an outstanding Harvard lawyer who had served in military intelligence during the war, was the man in charge. He was my Chief at Nuremberg and we were later law partners. The trials under his direction were designed to show that Germany could not have committed all of those horrible crimes without the support of a broad cross-section of German society. Bankers and industrialists supported the Nazi party and programs. Doctors performed medical experiments. Jurists perverted the law for political purposes. Ministers conspired to commit Nazi aggressions, and the military carried them out. The Schutzstaffel (“SS”) were mass murderers.
Taylor first assigned me to help collect evidence for the twelve subsequent trials. Whitney Harris has explained that a great deal of evidence was assembled in London and in Paris. But there was quite a lot that we still didn’t have. Hidden in the woods around Berlin, there was what appeared to be a small villa. Beneath the small house there were subterranean caverns holding about ten million carefully filed Nazi Party records. They showed the names of every member of the Nazi party and the comprehensive documentation of how they served the Third Reich. It’s ironic that the highly esteemed German Judge Hans-Peter Kaul, who sits on the new ICC in the Hague, has his residence not far from the old Berlin Document Center. When I worked there in 1946, the German staff employed by the Americans was happy to be paid with cigarettes, soap and coffee. That was the only currency that had any value.
Let me give you another brief illustration of what it was really like. One of my researchers in Berlin came upon a number of loose-leaf binders, which were the reports of the SS from the Russian front. Special units called Einsatzgruppen (“EG”)—a name Americans couldn’t pronounce and nobody could translate. These were special extermination units assigned to follow the German lines as they advanced into Poland and the Soviet Union and were there to “eliminate” (they never said “murder”) every Jewish man, woman, and child they could lay their hands on, as well as every Gypsy, and any suspected opponent of the Nazi regime. And that’s what they did. And then they proudly reported the details. How nice! The top secret reports gave us the name of the commander, the unit, how many people they killed, the time, the place, and the distribution list with as many as one hundred names of leaders who later said they knew nothing about the genocide. I took a sample of the damaging evidence and flew from Berlin to Nuremberg. I said to General Taylor, “We’ve got to put on another trial.” Taylor was hesitant. Another trial had not been planned and no budget had been approved. Taylor was persuaded to approve an unplanned trial against these killing squads and assigned me to be responsible for the case, in addition to my other work. So, I became the Chief Prosecutor for the United States, in what was truly the biggest murder trial in human history. I accused twenty-two SS Officers, including six SS Generals, of murdering in cold blood over a million people. Relying on the documents and without calling a single witness, I rested the prosecution’s case after two days. I was twenty-seven years old and it was my first case.
THE RULE OF LAW- THE CRIME OF AGGRESSION
One of the EG commanders was being held in Nuremberg as a potential witness in the IMT trial. Whitney Harris had interviewed him. He became the lead defendant in the new EG case. SS General Dr. Otto Ohlendorf, father of five children, a handsome man, was one of the smartest and outspoken of the accused. He had admitted that his unit killed about 60,000 Jews, but he quibbled about the precise number since sometimes his men bragged about the body count. Imagine, bragging that you murdered more than you actually killed! None of the mass murderers showed any remorse whatsoever. Ohlendorf was asked to explain why they had killed all the Jews. Most defendants argued that they were only obeying superior orders. Ohlendorf was much more honest. He said it was necessary in self-defense. Self-defense? Where do you come up with selfdefense? Germany attacked all of its neighbors. “Ah, yes,” he explained, “we knew that the Soviet Union planned to attack us, and therefore it was necessary for us to attack them first.” (These days we call it “preemption.”)
Question: “And why did you kill all of the Jews?”
Answer: “Well, we knew that the Jews were sympathetic to the Bolsheviks. Everybody knows that. So, we had to get rid of them, too.”
Question: “And why did you kill thousands of little children?” Answer: “Well, if they grew up and learned that we had eliminated their parents, they would become enemies of the Reich. So, of course we had to take care of them, too.” It sounded so natural and logical . . . to the mass murderer.
It was not persuasive to the three American judges. They carefully considered the doctrine of preemptive self-defense, or anticipatory self defense. They held, unanimously, that it was not a valid defense that could justify the crimes. If everyone felt they could go out and attack their neighbor, and also kill their children and other perceived enemies, what kind of a world would we have? It was an echo of Justice Jackson’s famous phrase that has been quoted here about not passing the Germans “a poisoned chalice” lest we put it to our own lips as well. Law must apply equally to everyone.
In Telford Taylor’s closing statement, he said to accept preemptory self-defense as a justification for murder would be like saying that a man who breaks into a house can then shoot the owner in presumed selfdefense. Those who made that argument were found guilty and were hanged. I was a young man then, and it was clear to me that those innocent souls who were slaughtered by these Nazi extermination squads were killed because they did not share the race, or the religion, or the ideology of their executioners. I thought then that such thinking was pretty terrible. I still think it’s pretty terrible today. Of course, it affects my judgment when I come to consider the view from the United States.
THE VIEW FROM AMERICA
America is a great democracy. It consists of very many people, with very many different views. And there is no such thing as the view from the United States. There is a view from this administration, or from some previous administration. And I can talk to you about that, but I want to remind you that when America began in 1776, it was in a revolution against King George, King George of England, I mean. Because we live in a great democracy, there are those here and in other parts of the world that don’t believe in the rule of law. They say that’s nonsense, that’s idealistic dreaming. If you’ve got the power, use it. That’s the way the world has always been run. Countries have grown by conquest, that’s the way to go. That was not the view of Justice Jackson.
He said, “No more!” And he didn’t invent that prohibition. The IMT judges went into the question of ex post facto law. The idea that war was impermissible had been an evolving doctrine from the First World War. The legal committee of the League of Nations at the time was unanimous that aggression was a crime, but the best that could be done was to agree that in future it would be punished—regardless of the rank or status of the responsible perpetrator. The Kellogg-Briand Pact of 1928 specifically prohibited the use of armed force.
Truth is that the leaders of important powers in the world today are not prepared to give up their right to use force in their national interests, when they believe it’s necessary, or even as a preemptive matter as far as the United States is now concerned. That is the policy of this Administration as confirmed by the Quadrennial National Defense Strategy Reviews issued by the President and the Pentagon. We specifically reserve the right to act unilaterally in defense of our national interest when the Administration sees fit. Of course, there are many citizens who think that’s correct; that’s what Presidents are supposed to do. But even at the risk of being labeled an idealist or a dreamer, I ask: where is that policy getting us? Have we found peace that way? Have we served our people that way? Have we advanced our reputation worldwide by staying the course to show resolve?
When I look at the view from America, I see two different trends. Let us first view things, which, in my opinion, do not serve our national interests. The present security strategy of the United States is a repudiation of the most important principle coming out of the Nuremberg trials. If you compare the published national security strategy with the judgments of the Nuremberg trials, it is clear that they are not compatible. The argument made by “realists” is that times have changed; we live in a nuclear world where the mushroom cloud looms. Terrorists do not respect the law. To meet the new threats, administration lawyers argue that they can disregard or stretch the law. They invent new terminology. It’s “soft law.” Soft law means you’re violating the law, but you’re trying to find a moral basis in order to justify what you’re doing. Well, that’s one way to approach it, and there are good lawyers who have taken that position. I think it’s a very dangerous practice to allow people to decide that the law doesn’t work so they’re entitled to ignore it. If the law doesn’t work, what you must do is improve the law, not discard it. Imagine what would happen if every time a judge rendered a bad decision, or they passed a new law which may have been a bad law, you decided you were entitled to disregard it. What would the world look like? We’d be back to the Wild West. That may bring nostalgia in some Texas hearts, but as a policy for peace in the world, I don’t think that would be very effective. An illegal act does not become legal when it is done with good intentions. Let me note another problem that causes concern. Tom Franck will recall the top secret “Downing Street Papers” published by the London Times in July 2002. Leading British cabinet members discussing plans for an upcoming war with Iraq concluded that the United States was fixing the facts to match the policy. It seemed clear to them that the U.S. had made up its mind to go to war against Iraq, no matter what. The Americans were determined to bring about a “regime change.” When it was noted that doing so by force would be illegal, administration lawyers, adept at finding new interpretations of laws, came up with the argument that preemptive force would be justified as self-defense from an imminent nuclear threat. The U.N. Charter says a nation may defend itself against an armed attack. As far as I can make out, Iraq wasn’t engaged in or even planning an armed attack against the United States. So the creative lawyers stretched the law by arguing that since the Security Council of the U.N. was too politicized, it could be bypassed if necessary. A preemptive war followed.
America’s misguided opposition to the ICC also troubles me. Judge Goldstone and Ambassador David Scheffer have given other examples of U.S. intransigence. John Bolton now sits as America’s permanent representative at the U.N., having found a way to bypass the normal constitutional requirement of Senate confirmation. Ambassador Scheffer mentioned “Article 98” immunity agreements. The U.S. insists that unless a country signs a commitment never to send an American to the ICC, all U.S. military and economic aid will be cut off. Many of the countries use our funds to hunt narcotics traffickers and terrorists. Judge Goldstone wrote a news article saying the American policy almost borders on the irrational. That’s the language of a real gentleman. I would have put it more simply. I would have said, “It’s plain crazy!” Other current administration actions that are distressing include those strengthening executive powers regarding prisoner-of-war interrogations that have brought our nation into worldwide disrepute.
Now let us look at the more positive things. The progress toward a world under the rule of law has been fantastic! When delegates from about 160 nations went to Rome in July 1998 to seek agreement on an international criminal court, there were about a thousand points still being discussed, and they reconciled all of them. That was largely due to the determination of many countries and the skill of Chairman Philippe Kirsch and others who worked very hard in the preparatory commissions (“precoms”). We now have a truly international criminal court for the first time in human history. Unfortunately, the crime of aggression, that was the most important achievement of Nuremberg, was only listed as one of the four core crimes. But, the ICC was not empowered to deal with that offense until various conditions could be met. Nevertheless, the confirmation in the ICC statute that aggressive war is an international crime had significant repercussions.
One of the delegates at the prep-coms and in Rome was the representative of the U.K., Elizabeth Wilmshurst, a very nice lady and British civil servant who occupied an important legal post in the Foreign Office. She was their expert on aggression. When she recognized that Britain and the U.S. were going to war against Iraq without Security Council approval she resigned. “I can no longer serve a government which is engaged in the crime of aggression,”(1) she wrote. That’s an exact quote. I have a copy of the letter. Britain’s legal officer says the U.K. and the U.S. are engaged in the crime of aggression. Britain’s top intelligence people say the U.S. is misleading the public about the proximity of a nuclear attack and that Iraq supports terrorists that bombed the United States. These are allegations that challenge the validity and legality of our going to war and they call for more detailed explanation than has been forthcoming.
I’ve never seen the people of this country so frightened. And I have lived through the Depression, when lawyers and doctors were selling apples on the street, and the days when Father Coughlin was preaching racial hatred and support for Hitler. I have seen how Senator McCarthy decimated the State Department by falsely challenging the loyalty of patriotic Americans. These national crises have been overcome. It is necessary to change the way people think. If people are prepared to kill and die for their particular ideals, whether it is nationalism or religion or anything else, there is no easy solution. Those who are prepared to die while blowing up a school bus see themselves as heroic martyrs. Their mothers bless them and boast to their neighbors about the noble death of their child.
These are ideas that cannot be fought with a gun. You can only prevail over a confirmed idea with a better idea. Changing the way people think about ingrained ideals takes hard work and a long time. You have to begin very early to educate young minds that war is not glorious. War is an abominable crime, no matter what the cause. The U.N. Charter (“Charter”) prescribes many ways of settling disputes by peaceful means. It is time to give the Charter a chance. There is a growing awareness that current thinking regarding peace and power must be changed.
What I am going to propose to you is something that I realize may sound a bit crazy. It will take a long time and hard work to achieve the peaceful world all people desire. But I believe it can be done—eventually. I suggest that we all try to live up to Jackson’s dream and to the aspirations we’ve heard here from former Nuremberg lawyers and several distinguished professors. We have to eliminate war-making. You may well ask: “How can you do such a thing?” It has never happened. Well, nothing ever happened until it happened for the first time. By definition, everything that is new has never existed before. Let me remind you of the two brothers in Ohio, Wilber and Orville Wright. They had the crazy idea of putting wings on a bicycle and peddling hard until it left the ground. The neighbors mocked them as mad. “If God wanted man to fly He would have given them wings.”(2) At this moment there are thousands of airplanes circling the globe. Being a little crazy may be a good thing. We are at the beginning of an amazing information revolution, the magnitude of which we cannot even grasp. The potential for changing the way people think is enormous. But it will take time. I don’t know if it will be a hundred years or two hundred years or more. There is no such thing as instant evolution or painless revolution, but it can be done. How do I know? Well, I see the trend from all the changes I have witnessed during my lifetime. We are spiraling upward. For example, when I went to school there were no females in my class in high school, college or law school.
Under the U.S. Constitution, women had no right to own property or to vote. A man with white skin could legally own a man with black skin. Those discriminations, fortunately, no longer exist in our country. We had to fight a civil war to end slavery because some argued that our economy and way of life was at stake. We have changed the way people think on such important issues in a relatively short time. An international criminal court never existed before in human history. But it exists today. New institutions are being born to cope with global problems. Such transformations all required and still require determination, patience and a willingness to teach tolerance, compassion and the benefits of compromise rather than conflict. The U.N. Charter prohibited the use of armed force without Security Council approval. It called for disarmament and the creation of an international military force to preserve the peace. It listed many ways to settle disputes by peaceful means. No doubt, the Charter needs improvement, and that should be our primary goal. It is time for all nations to live up to their legal and moral obligations.
You cannot achieve lawful ends by unlawful means. Respect for the rule of law is basic. Good intentions can’t make legal what is illegal. I do not challenge the intentions, or the patriotism, of persons who do not share my point of view. They are entitled to their opinions. Please let me quote some distinguished Americans whose views I admire. They also reflect a view from America. I quote: “In a very real sense, the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”(3) My supreme commander in World War II, Dwight D. Eisenhower, wrote that on April 30, 1958, when he became President of the United States. Lest you think that is an exception, let me quote from the 1964 memoirs of another great military leader, General Douglas MacArthur: “For years, I have believed that war should be abolished as an outmoded means for resolving disputes between nations.”(4) On January 16, 1991, President George Bush, the father of the present President, addressed the nation, saying: “We have before us the opportunity to forge for ourselves a new world order where the rule of law, not the law of the jungle, governs the conduct of nations.”(5) I would be happy if his son would listen to his papa. There are other patriotic military leaders whom I know personally and who do not believe in war: Robert McNamara, former Secretary of Defense; Admiral Stan Turner, former head of the CIA; four-star General Lee Butler, who was trusted to carry the trigger for the nuclear bomb. On his retirement, Butler warned the nation of the devastating perils of nuclear warfare. All of them are agreed that our present nuclear policy is insane. That’s their language, not mine. Who is crazy? I think we have an obligation to remember and honor Nuremberg for what it stood for. Tom Paine, who inspired the American Revolution, had it right. A patriot is not one who says “My country, right or wrong.” A true patriot will support his country when it is right but will have the courage to speak out when it’s wrong and try to set it right. Let me close with a message written by Thomas Paine on February 14, 1776, in his pamphlet Common Sense: “O, ye that love mankind! Ye thatdare oppose not only tyranny but the tyrant, stand forth!” I say to you stand forth! Never stop trying to make this a more humane and peaceful world. Keep peddling. It’s going to fly!
† Details of the observations made in this address can be found on the author’s website,
www.benferencz.org. The following references have been provided by the staff of the Washington
University Global Studies Law Review.
* J.D. (1943), Harvard Law School; Former prosecutor at the Nuremberg war crimes trials.
1. Elizabeth Wilmshurst, Wilmhurst Resignation Letter (Mar. 24, 2005), available at
2. Dr. Richard Stimson, Celebrate the Success of the Wright Brothers, WRIGHT BROTHERS
STORIES, http://www.wrightstories.com/aviators.html (last visited Oct. 15, 2007).
3. Dwight D. Eisenhower, President of the United States, Presidential Statement in Observation
of Law Day (Apr. 30, 1958), available at http://www.eisenhowermemorial.org/speeches/#1958 (select “Statement by the President on the Observation of Law Day”).
4. See DOUGLAS MACARTHUR, COURAGE WAS THE RULE: GENERAL DOUGLAS MACARTHUR’S
OWN STORY (1965).
5. George H.W. Bush, President of the U.S., Address to the Nation on Invasion of Iraq (Jan. 16,
6. Thomas Paine, Common Sense, line 53 (1776), available at http://www.bartleby.com/133/3.html.
Fair Standards to Prosecute Terrorism: Benjamin Ferencz in response to Amnesty International
By Benjamin B. Ferencz
published: August 2006
You ask: "Is it necessary to sacrifice fair trial standards to prosecute terrorism?" In principle, every human being is always entitled to fair and humane treatment. Even the Nuremberg defendants, accused of murdering millions of innocent people were given a fair trial. (See Nurnberg Trial Procedure and the Rights of the Accused.) "Terrorists" consider themselves at war, just as the US considers itself at war against terrorism. Crimes are committed by individuals who are unwilling to accept the existing laws they consider unjust. Those who are willing to die and kill for their own particular cause consider themselves martyrs rather than villains. "One man's terrorism is another's heroism." Decision makers must find the balance between protecting the rights of the accused criminal against the rights of victims to be protected. That is often very difficult.
One cannot try an idea, nor can it be killed by a gun. An idea must be replaced by a better idea. We must stop glorifying killing "the enemy" and replace the existing war-ethic with a new "peace-ethic."All must learn that law is better than war. The International Military Tribunal at Nuremberg held that aggressive war is the "supreme international crime." That was affirmed by the United Nations and upheld in many legal decisions. Nazi leaders argued that they acted only in self-defense against a presumed attack by the Soviet Union. Their justification for mass murder was rejected and responsible leaders were hanged after a fair trial. Who is to try those who continue to use such invalid and deceptive justifications for sending young persons and countless civilians to their death?
As a former combat soldier in World War Two, and a war crimes investigator, I am firmly convinced that there has never been, and can never be, a war without atrocities. Illegal war- making is the biggest atrocity of all. Responsibility starts at the top. It will be impossible to explain to a lowly enlisted person that it is hailed as a great achievement to incinerate a city with nuclear weapons and destroy future generations yet unborn, but a prisoner, who was trying to kill you, must not be humiliated. My Supreme Commander in war, General Dwight Eisenhower, as President of the United States declared: "The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law" (May 19, 1958).
We need not only more tolerance and understanding for justified grievances but we need new institutions to strengthen the rule of law. US opposition to the new International Criminal Court in the Hague is misguided and does not serve our national interests. Our insistence that US nationals are not bound by laws that others are required to accept repudiates what we stood for at Nuremberg. It brings us into disrepute as a hypocritical bully. Fair trial requires that everyone be bound equally by the same laws. As US General Telford Taylor, my Chief at Nuremberg and later law partner and Columbia University Professor put it: "Law is not a one way street." Fairness is determined not only by how an interrogation or trial is conducted but also by who sits in the dock.
The Holocaust and the Nuremberg Trials
By Benjamin B. Ferencz
published: December 2005
source: UN Chronicle
The greatest tribute we can pay to the memory of those who perished in the Holocaust and similar tragedies is never to stop trying to make this a more humane and peaceful world.
The United Nations Charter of June 1945 expressed the determination “to save succeeding generations from the scourge of war”. Its Preamble spoke of the equality of nations, large and small, and called for enhanced social justice, tolerance and respect for international law. In August 1945, the United States, the Soviet Union, Great Britain and France signed another Charter, creating the International Military Tribunal (IMT), to bring to justice some of the German leaders responsible for aggression, crimes against humanity and related atrocities. How far have we come and what more must be done before these noble goals can be achieved?
Germany had surrendered unconditionally and each of the four occupying Powers assigned leading jurists to serve as judges and prosecutors for the IMT. It was agreed that the proceedings had to be absolutely fair; the situs would be in Nuremberg, the home of Nazi party rallies. Robert H. Jackson, a leading architect for the trials, took leave from the United States Supreme Court to serve as America's Chief Prosecutor. In his opening statement, he set the standard: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.”
Adolf Hitler and some of his top aides committed suicide, as did Field-Marshal Hermann Goering after he was sentenced to death by the Tribunal. Of the 24 defendants, 3 were acquitted, 9 were imprisoned and 12 were sentenced to hang- the world was put on notice that those who held the reins of power would be accountable for their crimes. The learned IMT jurists confirmed the legal jurisdiction of the court and the validity of the charges under existing law. All proceedings were open to the public. The accused were presumed innocent, given humane treatment and guaranteed rights that they, in the days of their pomp and power, never gave to any man.
After the widely adopted Kellogg Pact of 1928 outlawed the use of force, it should have come as no ex-post facto surprise to Nazi leaders that their blitzkrieg against other States would no longer be tolerated. Justice Jackson noted that international law did not stand still, but gradually evolved to meet changing needs. In 1946, the Nuremberg judgment and principles were unanimously affirmed by the first General Assembly of the United Nations. The law had taken a step forward. Aggressive war, which had previously been accepted as an international right, was confirmed as a punishable international crime.
Subsequent trials at Nuremberg, in Tokyo and elsewhere built on the IMT foundation. The Allied Powers were unable to agree on another joint international trial, but each could try their own captives. Since the Tribunal could provide only a snapshot of Nazi criminality, the United States decided to conduct a dozen “subsequent proceedings”, to be directed by General Telford Taylor, a key player on Justice Jackson's staff. Indictments were filed against doctors who performed forced medical experiments, judges who perverted the law, and industrialists, military leaders and ministers who supported illegal Nazi policies. Of the 185 tried in the “subsequent proceedings”, 142 were convicted.
In April 1946, I was recruited by the Pentagon to return to Germany to assist with the “subsequent proceedings”. I had worked as a research assistant to a Harvard University professor, writing a book on war crimes, before I joined the army as a private in the artillery in 1943. When American troops advanced into Germany, I was transferred to General Patton's headquarters to help set up a war-crimes programme; as an investigator, I dug up bodies of captured Allied flyers beaten to death by enraged German mobs. I entered many concentration camps with the liberating army and witnessed the horrors of the Holocaust firsthand; I assembled documents and data to prove the full extent of Nazi criminality. The trauma of those indescribable experiences has never left me.
After setting up offices in Berlin to gather evidence to support the planned new prosecutions, General Taylor assigned me to be Chief Prosecutor in what was known as the Einsatzgruppen case. The defendants were leaders of SS units that followed advancing German troops into occupied Poland and the Soviet Union, whose mission was to kill without pity or remorse every Jewish man, woman and child they could lay their hands on. Gypsies and any other perceived threats to the Reich were to suffer the same fate. According to their secret reports, these extermination squads, totalling about 3,000 men, deliberately massacred over a million innocent people; the victims were killed simply because they did not share the race, religion or ideology of their executioners.
To prevent acts of genocidal barbarism, one must understand the mentality and reasoning of the murderers. The 22 defendants in the Einsatzgruppen case were selected on the basis of high rank and education—many held doctor’s degrees, six were SS generals. The principal defendant, General Dr. Otto Ohlendorf, patiently explained why his unit had killed about 90,000 Jews. Killing all Jews and Gypsies was necessary, he said, as a matter of self-defense. According to Ohlendorf, it was known that the Soviets planned total war against Germany. A German pre-emptive strike was better than waiting to be attacked. It was also known that Jews supported the Bolsheviks; therefore, all Jews had to be eliminated. But why did he, the father of five children, kill the little babes, thousands of them? The bland reply was that if the children learned that their parents had been eliminated, they would grow up to be enemies of Germany: long-range security was the goal. Ohlendorf lacked facts sufficient to challenge Hitler's conclusions. According to him, it was all very logical.
I had not called for the death penalty, although I felt it was richly deserved. I simply asked the court to affirm the right of all human beings to live in peace and dignity, regardless of race or creed—it was “a plea of humanity to law”. The three experienced American judges concluded that a pre-emptive strike as anticipatory self-defense was not a valid legal justification for mass murder. If every nation could decide for itself when to attack a presumed enemy and when to engage in total war, the rule of law would be destroyed and the world would be destroyed with it. All of the defendants were convicted: 13 were sentenced to death and Ohlendorf was hanged. I was 27 years old then and it was my first case. The ideals that I then expressed have remained with me all of my life.
How far have we come? Despite having promised my wife when we were wed in New York that we would be in Germany only for a brief honeymoon, we stayed on to help obtain restitution, compensation and rehabilitation for the survivors of persecution. As a salaried employee of Jewish charities, I directed innovative programmes that had no historical or legal precedent. When by 1956 Nazi victims of all persuasions had received payments from the West German Government of about $50 billion, we decided that it was time to return home with our four children, who were born in Nuremberg. Practicing law in New York proved uninspiring; with war and killings raging all over the globe, I decided, at fifty, to spend the rest of my life trying to replace the law of force by the force of law.
My mind turned to international criminal courts to deter international crimes. In 1946, the United Nations had called for a code of international crimes and an international criminal court to build on the Nuremberg precedents. Accredited as a member of a non-governmental organization, I obtained access to UN archives. I learned that delegates, unable or unwilling to agree upon a definition of the crime of aggression, argued that without it there could be no criminal code, and without a code there could be no court. In truth, powerful nations were not ready to yield cherished sovereign prerogatives to any international criminal tribunal. After a definition of aggression by consensus was finally reached in 1974, the gates were opened for further work on the criminal code and court. The problems were thoroughly explored and documented in a number of books that I published between 1975 and 1983, and my 1994 book, New Legal Foundations for Global Survival, was a comprehensive overview, which UN Secretary-General Kofi Annan generously described as “remarkable”.
It took mass rapes in the former Yugoslavia in 1991 to shake the world out of its lethargy. In 1993, the UN Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY) to hold accountable those responsible for war crimes, crimes against humanity and the genocide cloaked as “ethnic cleansing”. To the everlasting shame of the international community, when over 800,000 people were butchered in Rwanda in fratricidal tribal rivalries, the Council set up another ad hoc tribunal—the International Criminal Tribunal for Rwanda (ICTR)—to bring the instigators and perpetrators to justice. Similar international tribunals, with limited jurisdictions, are beginning to function for crimes against humanity committed in Cambodia, Sierra Leone, Timor Leste and elsewhere. It should be obvious that temporary courts created for a limited time in a limited area after crimes have been committed is hardly the most efficient way to ensure international justice. The missing link in the world's legal order was a permanent court with universally binding laws that might help deter such crimes before they occurred. After many years of difficult negotiations and compromises, the Statute for the International Criminal Court (ICC) was adopted under a treaty signed in Rome on 17 July 1998, with 120 delegations voting in favour and 7 against. Secretary-General Annan called it “a gift of hope to future generations”. By 1 July 2002, the treaty went into effect, with 60 ratifications, and by the end of 2005 the number had swelled to 100, but ratification by some of the major Powers is still outstanding. The United States indicated its early support for the ICC when President Bill Clinton addressed the UN General Assembly and had the treaty signed at the United Nations on New Year's Eve of 2000. But in an unprecedented repudiation, his signature was cancelled as the new Bush Administration in May 2002 notified the United Nations that the United States had no intention of becoming a party to the ICC.
Conservative forces in the United States Government argued that the uncontrolled prosecutor might unfairly prosecute American service members. Nations were warned that the United States economic and military aid would be halted unless they signed agreements exempting American citizens and their employees from the reach of the new Hague tribunal. The United States, which had done so much to advance the rule of law, turned its back on the Nuremberg principle espoused by Robert Jackson, Telford Taylor and many others, that law must apply equally to everyone. The fears expressed by the United States Government are misguided and not shared by the hundred nations that support the ICC, including America's staunchest allies and the entire European Community. Under the ICC Statute, every nation must be given priority to try its own nationals; only when the country is unable or unwilling to provide a fair trial can the ICC exercise jurisdiction. No prosecutor in human history has been subject to more controls. The American Bar Association and leading jurists support the ICC, and it is hoped that when the ICC has proven its fairness and merit, the United States will end its unreasonable boycott and join the other nations seeking to uphold fundamental principles of international humanitarian law.
Where are we going? In every great democracy, it is inevitable that there will be differences of opinion. There have always been those who are convinced that warfare is an unchangeable part of man's nature; war is seen as a glorious manifestation of divine law—”the big fish eat the little fish”. Despite pretensions to the contrary, such skeptics do not really believe in international law. They reject the utility of new rules of the road or new institutions that seek to improve human behaviour. They deride as “dreamers” or “idealists” those who believe that entrenched practices and values can be altered. Yet, history proves they are mistaken.
Slavery has been abolished, women's rights are growing, colonialism has all but ended, sovereign States are forming multinational unions bound by common rules, international criminal law and humanitarian law have come into existence, and international courts are beginning to flourish. Nations are increasingly recognizing that in this interdependent world they must cooperate for their common welfare. The revolution in technology and communications holds forth the promise of a completely altered international and integrated human society for the enhanced benefit of all.
Adherence to traditional cultures can enhance the quality of life and should be nourished. Loyalty to one's neighbourhood, nation or religion is cherished values that should be respected. But, as Nuremberg showed, differences of race, religion or ideology cannot be tolerated as valid grounds for destroying those who happen to be different. It is not permissible “self-defense” to slaughter “the other”—it is the crime of murder. Aggression, according to the Nuremberg judges and other precedents, is “the supreme international crime” since it includes all the other crimes. There can be no war without atrocities, and unauthorized warfare in violation of the UN Charter is the biggest atrocity of all. The best way to protect the lives of courageous young people who serve in the military is to avoid war-making itself. One cannot kill an idea with a gun, but only with a better idea. If people believe that law is better than war, they must do all they can to enhance the power of law and stop glorifying war.
There can be no real peace for anyone until there is peace for everyone. Education for peace must start at the earliest ages and be carried through all the institutions and modalities of learning. Understanding, tolerance, compassion, compromise and infinite patience hold forth more promise than the threat of nuclear annihilation or the devastating perils of modern warfare. The memory of those who perished in the Holocaust and countless wars since then cries out for an improved social order and a more humane and peaceful world for everyone.
Q&A with Ben Ferencz
By Benjamin B. Ferencz & ABA
published: December 2005
publisher: American Bar Association
Q: You were recruited for the Nuremberg war crime trials. How did this come about - was it related to your work with the War Crimes Branch of the Army?
To some respects it was. When I graduated from the Harvard Law School, I had done research for one of my professors who was doing a book on war crimes, so I was thoroughly familiar with all of the laws involved, and eventually the Army - where I started off as a private in the artillery - transferred me to General Patton's headquarters to become a war crimes investigator and to help set up the war crimes programs. So by the time the Nuremberg trials were on, I was a very experienced man in the field, having been involved in the liberation of many concentration camps and knowing the legal background as well as the factual background.
Q: Twenty-seven years old, the Nuremberg trial was your first case. Can you talk a little about what that was like - the pressure, perhaps, the satisfaction of bringing these heinous crimes to closure?
The most impressive thing to me at Nuremberg and in my other experiences in Germany was a complete absence of remorse on the part of the defendants. They argued that they were justified in doing what they did. The simple soldiers argued superiors' orders; the higher ups who were on the policy-making level argued that what they did was in self-defense - that they knew or feared that the Soviet Union was about to attack them and therefore they felt justified in a preemptive first strike. And the additional argument was then made, then why did they kill all the Jews? According to their own reports, they killed millions of Jews.
The trial in which I was the chief prosecutor against the special extermination squad, the lead defendant there was a general in the SS, Doctor Ohlendorf. He explained it very clearly: "We had to kill the Jews," he said, "because we knew that they were supportive of the Bolsheviks so therefore we had to kill them to eliminate any increased opposition to us." And why did you have to kill the children? "If we killed the parents, then the children would grow up to be enemies of Germany." Why did you kill the gypsies? "No one trusted the gypsies so we had to kill the gypsies as well." These arguments that supported justification of killing millions of human beings left me very, very cold. And they still do today.
Q: Your biography states that your primary objective had been to "establish a legal precedent that would encourage a more humane and secure world in the future." Do you believe you were successful? What changed as a result of the Nuremberg trials?
Well, certainly we were not entirely successful in having a more humane and secure world today. In some respects, we were successful because the creation of new international courts which we now see - the permanent international criminal court in The Hague as well as the Security Council ad hoc tribunals for the crimes committed in Yugoslavia and Rwanda, are certainly steps forward. The Rwanda situation is a good illustration of why we failed. It is a disgrace to our civilization that we allowed 800,000 people to be butchered in that country, knowing that it would probably happen, and did nothing to prevent it.
So what we see is a slow advance from the Nuremberg trials, but there's still a long way to go.
Q: You have spent the past 50 to 60 years continuing efforts toward an international rule of law. In what other ways has your work at Nuremberg impacted you personally?
My entire experience in Germany has had an enormous impact on me. First of all, coming into the many concentration camps - like Buchenwald, Mauthausen, and other camps that are unknown today - was so traumatic, seeing all the dead bodies lying around, the crematoria, corpses lined up, the gas chambers, and then talking to the mass killers and knowing their mentality, has increased my determination to spend the rest of my life trying to make it a more humane and peaceful world.
Q: Would you please comment on your role in the Rome Statute and establishing an International Criminal Court?
For many years, I worked on trying to set the foundations for an international criminal court. I did that by getting accredited to the United Nations. I don't represent anybody in fact. No one hired me and no one can fire me, which gave me a great advantage.
Now I did write a two-volume book on defining international aggression, which is one of the big problems. I wrote another two volumes on an International Criminal Court, which laid the foundation for further action because I included all the documentation and history on what had happened up until that time. And these documents, I suppose, were useful to those who were the official representatives acting on it. I was honored in Rome by being invited to make a statement to the delegation in which I explained that I came to speak for those who cannot speak. I spoke for the victims and I urged the delegates to continue their work and that the goal was within their reach and they had to carry on. So I think I inspired some of the people, it might have helped a bit.
Q: How close do you feel we are with respect to replacing the "rule of force" with the "rule of law"? What needs to be done to see that this is accomplished?
Well, we've still a long way to go, but we have done a great deal. I recall back to my early student days. Women in the United States were still suffering from our constitutional requirement that they had no right to vote and no right to own property. We had never heard of human rights. I knew Raphael Lemkin, who coined the term, 'genocide.' I knew Rene Cassin, who invented the Universal Declaration Of Human Rights, for which he received a Nobel Prize. Women have received their rights, in the United States at least, and in other countries we have eliminated slavery. So, all of these are illustrations of the law being used to replace the rule of force.
The existence of these tribunals, despite the misguided opposition of the United States, as far as the international criminal court is concerned, is another example of real progress.
What needs to be done? Well, there's a great deal that needs to be done. We have to begin to change the way people think, and that is not an easy thing to do when their thinking has been ingrained for many generations. We have to stop supporting buying the military and advance the idea that law is better than war.
We have to compromise, be willing to tolerate some of the differences we have. We can begin educating our children at the earliest stages for all these new principles. That'll take a long time to do.
From my vantage point of now being 86 years of age, and having started on this about 60 years ago, I see significant progress, and I am hopeful that that progress will be continued because we owe that to the memory of those who have perished seeking these humane and peaceful goals.
Q: Any other comments you would like to make regarding your experiences or hopes for the future?
Yes. I would like to encourage anyone who may read this never to give up. That is the answer. We must continue striving for these goals, which are surely in the interest of all of humankind despite the difficulties which are inherent. And despite the time that it will take, I am confident that if we continue, we will at some future date find a more peaceful and humane world.
Paradoxes of a Sharp Legal Mind: An Introduction to "Aggression and World Order: A Critique of United Nations Theories of Aggression"
(Lawbook Exchange, 2005), Joseph Perkovich General Editor.
By Benjamin B. Ferencz & Joseph Perkovich
published: November 2005
source: Aggression and World Order: A Critique of United Nations Theories of Aggression, Reprint Edition: The Lawbook Exchange, Ltd., Clark, NJ, 2006
General Editor’s Preface
The principle of aggression is at the core of the modern international legal order. The United Nations Charter and the Nuremberg principles have enshrined its peremptory and criminal properties. In this moment when many sober observers view geopolitical upheaval on the horizon, the persistent instability of that core is placed in relief. The inability of international institutions to give effect to the prohibition of armed force and the absence of machinery to ensure the prosecution of parties for aggressive conflict are symptomatic of this state. The uncertain legal position of aggression remains intertwined with the roots of persistent global problems.
The following reprint of Professor Julius Stone's work is prompted by perennial questions of security and order relating to this core principle. Many years after its original publication, there is much to support Stone's underlying skepticism toward the principle as expressed in his two part thesis that i) defining aggression is not vital to human survival and thus not ethically imperative and ii) focus on promoting security actions via the broader concept of breach of the peace would better assist human survival.
However, as Professor Benjamin Ferencz has underscored in his new introduction, important gains have been made in recent years, especially respecting international criminal law. Stone’s work focused on the norm of the prohibition of aggression and its place within the nascent United Nations system. He gave less attention to the consequences of the Nuremberg principles for international criminal law. Gains in that latter area have created opportunities to realize a framework that can enforce the prohibition of aggression by codifying the means to adjudge and punish those responsible for its commission. Aiding our historical understanding of Stone’s text, Ferencz has imparted in the present introduction his matchless legal perspective beginning prior to his tenure in Nuremberg as a Chief Prosecutor and an Executive Counsel to General Telford Taylor.
If Stone and Ferencz were able to discuss today the basic questions in Aggression and World Order, they would likely still disagree on central positions, just as they had – to the profit of their readers – over the course of decades of discourse on the subject in scholarly texts and journals. In any discussion, the like-mindedness of the two humanitarians would doubtless come through. The Foundations of the Laws of War series is clearly deeply enriched by Ferencz’s contribution to the vexing topic set out in Stone’s authoritative and provocative treatment.
November 20, 2005
Paradoxes of a Sharp Legal Mind: Professor Julius Stone and International Aggression
BENJAMIN B. FERENCZ
Julius Stone was one of the most respected international legal scholars of the past century. Stone, the Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972 and then professor at the University of New South Wales from 1972 through 1985, did not hesitate to probe the most contentious jurisprudential problems.1 His 1958 book, Aggression and World Order: A Critique of United Nations Theories of Aggression,2 explored the United Nations' quest for a definition to identify nations that resorted to the illegal use of armed force. He agreed that aggression was the gravest international crime, yet he was unable to avoid the painful conclusion that the search for a binding definition that would curb aggressive behavior of nations might be a frustrating and futile endeavor. Sovereign states, he observed, are concerned with protecting their own national interests rather than enforcing the rule of law. After almost half of a century since his book was written, it is worth reexamining his thesis to see if it still has merit and what can be done realistically to move toward the humanitarian goals which Stone so fervently shared with peace-loving people everywhere.
Let us recall that after some fifty million men, women and children were killed in World War II, political leaders of the victorious powers held forth the promise that a new structure of international society would be created to preserve the peace. Those who had launched the war and directed the mass murder of millions of innocent civilians were warned that they would be held to account for the purposes of justice and legal precedent alike. The framework of international society’s new structure would be the United Nations, built from the rubble of its failed predecessor, the League of Nations, another edifice framed in the aftermath of a catastrophic war.
The Preamble of the United Nations Charter, signed June 26, 1945, begins by expressing the determination “to save succeeding generations from the scourge of war.” Paragraph 1 of Article 1 of the Charter declares the UN’s purpose to include the exercise of “collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.” Responsibility for preserving the peace is entrusted to the Security Council, composed of fifteen members including five permanent members drawn from the victorious Allied Powers. Chapter VII of the Charter empowers the Council with the discretion to determine whether an act of aggression by a state has occurred and to take whatever measures necessary to restore international peace and security.3 The Charter, however, fails to specify which acts constitute the illegal aggression that triggers a collective defense.4
In addition to that framework, the matter of dispensing justice after the vast breach of the peace and establishing precedents for the prevention and punishment of future aggressors still remained for international society’s new structure. On August 8, 1945, the four Allied Powers occupying Germany signed the London Agreement in order to create an International Military Tribunal to try German leaders deemed responsible for the war and its atrocities.5 The trial was to take place at Nuremberg. The IMT’s jurisdiction was limited to Crimes Against Peace, War Crimes, and Crimes Against Humanity. Crimes Against Peace were defined as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”6 After a fair trial that was open to the public, and a thorough analysis of the arguments made by the defendants' chosen lawyers,7 the eminent IMT judges concluded that those who had planned and directed attacks against their peaceful neighbors must have known that they were violating existing international law.
The genesis of modern international criminal law occurred in the interim between the two wars. At the conclusion of the Great War, the Allied Powers convened a special commission of international law experts to address criminal responsibility. Robert Lansing, the U.S. Secretary of State, chaired the Commission on the Responsibility of the Authors of War and Enforcement of Penalties for Violations of the Laws and Customs of War, which issued a Report naming over 850 suspected war criminals and enumerating 32 activities constituting war crimes.8 Leading up to the Treaty of Versailles, the report asserted that “all persons belonging to enemy countries . . . who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.”9
The Treaty of Versailles, 1919, served two basic purposes. It included the Covenant of the League of Nations,10 the institution designed to establish a pacific world order, and it established the terms of the peace as dictated by the victorious Allies.11 The long term prospects of the League were not helped by the U.S. Senate’s failure to ratify the Treaty and unwillingness to ever join. The Treaty also formed an untenable peace.12
In addition to its Report, Lansing’s Commission also drafted the “Penalties” section of the Treaty, which included Kaiser Wilhelm II’s public arraignment for “a supreme offence against international morality and the sanctity of treaties.”13 In the event, the Kaiser avoided a trial by fleeing to Holland, where the Dutch state refused requests for his extradition. Although the Treaty of Versailles also called for military tribunals administered by the Allied Powers,14 German war prisoners were ultimately returned, ostensibly to face a special court established in 1921 in Leipzig. The Criminal Senate of the Imperial Court of Justice held just twelve trials, none of which concerned significant figures. The process was highly unpopular in Germany and clearly did not foster any sort of national contrition.15 In spite of its practical inconsequence for prosecutions, the Treaty of Versaille’s precedents for criminal responsibility comprised a step toward the prohibition of force.
In the aftermath of Versailles, France initiated bilateral negotiations with the United States to rehabilitate relations between the former allies eroded in large part because of the United States’ unwillingness to forgive France’s war debt, which, itself, was linked to German reparations due to the Treaty. These negotiations resulted in a turning point for the proscription of armed force. The multilateral Kellogg-Briand Pact of 1928, signed outside the League of Nations framework by Germany, France, the U.S. and over sixty other countries, outlawed the use of force for the settlement of international disputes.16 While signatories failed to adhere to its terms, the Kellogg-Briand Pact is nonetheless a critical precedent for international criminal law.
The Pact and the Treaty of Versailles were cited along with many other treaties by the Nuremberg Tribunal and prosecutors to justify the aggression charge as being consistent with existing international law as well as the principles of fair trial.17 In his June 6, 1945 report to President Truman, Justice Robert Jackson, on leave from the United States Supreme Court in order to act as Chief Counsel for the United States, decried “the sterile legalisms developed in the age of imperialism to make wars respectable.”18 Augmenting the gravity of the available legal precedents, he called for common sense and a firmer enforcement of the laws of international conduct, “so as to make war less attractive to those who have governments and the destinies of people in their power.” The IMT judges recognized that the law is not static but must change to meet the needs of a changing world. Aggressive war, that had previously been a national right, was legally condemned as an international crime. International law had taken a significant step forward.
In December 1946, the first General Assembly of the United Nations unanimously affirmed the validity of the IMT trial and judgments,19 which were followed by subsequent Nuremberg proceedings and war crimes trials in Tokyo. In 1947, the Assembly appointed committees to draft a Code of Offences against the Peace and Security of Mankind – a code expressly to be based on the Nuremberg principles – and prepare for the establishment of a permanent International Criminal Jurisdiction to try those who violated the anticipated new criminal code.20 Idealistic UN aspirations in support of the rule of law soon confronted political reality. Nations and groups with different national, political, religious and ethical backgrounds had different perceptions of what was right and just. Additionally, as the price for joining the collective UN effort, the permanent members on the Security Council had reserved to themselves an unfair veto power: Any one of the five could block any enforcement action.
The argument was heard that there was no need for an International Criminal Court unless there was an agreed Code of Crimes for the Court to enforce. There could be no Code without including the crime of aggressive war that the Nuremberg Judgment had labeled as “the supreme international crime.”21 It was said that until aggression was more specifically defined, it could not be included in a precise criminal statute. Indeed, the General Assembly determined that a formulation of a criminal statute itself must be suspended until a definition was reached.22 Defining aggression was the key effort needed to unlock action on the Code and the Criminal Court, the arches of the gateway to the order conceived at Nuremberg. This definition project survived the years immediately following the Nuremberg Tribunal in spite of pronounced difficulties.
In addition to directing the International Law Commission in 1950 to “formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal,”23 the General Assembly also appointed successive Special Committees in 1952 (15 members) and 1954 (19 members), to cope with the same problem.24 Surely, so many lawyers working for so many years would have been able to agree upon an acceptable definition if the powerful states had been ready to restrain their aggressive behaviors. In truth, powerful states were simply not ready or willing to entrust their national security or vital interests to the judgment of any impartial international body.
Preparing Aggression: Skepticism and a Call for Justice
Through the decade after the Charter of the Nuremberg Tribunal, the crime of aggression remained undefined and illegal wars continued to be waged with impunity in many parts of the world. Professor Stone, in preparation for his Hague Lectures to be given in the summer of 1956, began the study ultimately published as Aggression and World Order in 1954. The “politico-legal analysis”25 proffered in those Hague Lectures did not, in the event, address the particular issue of aggression. However, beginning in the fall of 1956 while a visitor to the Harvard Law School, Stone used North American speaking invitations as an opportunity to apply his analysis to the particular matter of aggression in international law. Contemplating the “meagre results”26 – indeed, failure – of the UN's apparatus to confront aggression in the dire circumstances in 1957 of both the Suez Crisis and the Hungarian Uprising, Stone was reinforced in his melancholy conclusion that hope was gradually fading for finding an acceptable definition of aggression precise enough yet flexible enough to cope with the demands that precipitated international violence.27 He struggled with the tension between immediate security needs and long range aspirations. His Lithuanian Jewish parentage and his sympathies for the beleaguered young state of Israel probably increased his sensitivity to the urgent need for a more humane and peaceful world and the complexities inherent in prohibitions of the use of force. In the final analysis, he still aspired for the UN “to arrest breaches of the peace before these spread into a holocaust for mankind.”28
Unable to find a legally, philosophically or politically acceptable formulation for aggression, Professor Stone concluded that the most that could be done was to buy time so that moderation, understanding and tolerance might overcome or soften positions and perceptions that had hardened beyond the reach of reason. Although Stone had no illusions about the ability to define aggression as a step toward world order, paradoxically, he made plain that we must not desist from trying to attain an “ambitious theory of justice” that would place effective limits on the use of force by states.29
Upon publication in 1958, Stone’s book was widely reviewed in English language law journals by prominent scholars and international lawyers.30 Sir Gerald Fitzmaurice, Chief Legal Adviser to the U.K. Foreign Office and thereby longstanding opponent to any attempt to define aggression, praised Stone’s eloquence and erudition and generally agreed with his conclusions. Clyde Eagleton, scholar and U.S. Department of State expert, struck a sympathetic chord with Stone’s thesis by inquiring in the pages of the American Journal of International Law what use there would be of a definition of aggression until the community of nations was so organized that it could apply and maintain law. Dissonant views were conveyed as well. Covey Oliver of the University of Pennsylvania, critical of Stone’s analytical dissection of UN Charter prohibitions, noted that realpoliik and force might not be the most effective means to attain justice. Professor Louis Sohn of Harvard Law School argued for a definition and an improved UN as important steps toward a more peaceful world.31
Aggression focused on the concept as a peremptory norm proscribing certain conduct by states. Stone devoted less attention to the international crime of aggression applicable to individuals.32 Throughout his career, Stone espoused this relative weighting of the two roles of the concept. But the events of the intervening decades have demonstrated that the ascent of a criminal law structure able to incorporate the crime of aggression has been clearly the main channel of progress for the matters of international justice and the regulation of force considered so intensively in Aggression and revisited periodically in Stone’s later work on the topic.
Stalemate, Then Consensus at the United Nations
In the face of the ideological differences among major powers and their allies, the UN delegates were stymied. Little progress was visible in defining aggression or preparing either Code or Court. While revolving committees dithered, outstanding legal scholars filled the breach, seeking to clarify the necessary components of an acceptable system to restrict the use of force in international affairs. Professors McDougal and Feliciano of Yale University Law School, for instance, produced a remarkable book in 1961. Law and Minimum World Public Order: The Legal Regulation of International Coercion contained a profound and exhaustive analysis which recognized that a humane world order could not be achieved without bringing national violence and coercion under effective international controls. To achieve those goals it was necessary to invent and put in place new structures of authority which leaders and peoples could be persuaded to accept.33
In contrast to the prescriptive scholarship represented by McDougal and Feliciano, Professor Stone, a dozen years after publication of Aggression and World Order, used the introduction to the collection of essays Toward a Feasible International Criminal Court to reaffirm his earlier observations. Stone asserted that “the capacity of States for denouncing international lawlessness is one thing: their willingness to submit their own conduct or that of their agents to third party judgment on this account, is another.”34 Despite this skepticism, Stone did feel that even a minimalist approach, in which only a few states would agree to be bound by a court with limited jurisdiction, would be well worthwhile. Until there was an agreed definition of aggression, however, there was no hope that delegates would move forward toward creating any International Criminal Court.
On December 14, 1974, in the midst of Soviet-American détente, the General Assembly adopted Resolution 3314, a consensus definition of aggression painstakingly reached by UN Special Committees after almost 30 years of effort. The 138 Member States were by no means agreed on the interpretation of every clause in this definition.35 Notably, the resolution was not put to a vote. The consensus was the product of compromise achieved by including phrases of such dexterous ambiguity that adversaries could interpret them to suit their own political agendas. The eight articles of the definition began with a general clause based on UN Charter language prohibiting the use of armed force. That was followed by specific illustrations of outlawed behavior, such as invasion or attack. Exculpating clauses were added to placate states that were primarily concerned with protecting the right to self-determination or freedom from alien domination. Adding the vague phrase “in accordance with the principles of the Charter” made the enabling clauses tolerable. The clear articulation that the Security Council had the final word in what would be held to be aggression made the compromise wording acceptable to the permanent members, who wielded veto power.
Nations seemed to have forgotten, or had wished to forget, that the definition was originally intended to form a vital part of a new international criminal code and judicial system. As Professor Stone had foreseen, powerful sovereign states were not willing to yield their prerogatives to use military might when, in their sole judgment, it was necessary to defend or advance their national interests. Robert Rosenstock, the adroit United States delegate who promoted the adoption of the consensus definition, argued nonetheless that it only provided a guide for the Security Council and had no binding legal significance.36 No doubt, the compromise definition of aggression was actually more sieve than substance. It reflected the fears and hesitations that still prevailed in the world. But its very existence, however feeble, and the prolonged debates in its genesis showed an increasing awareness that human survival might depend upon man’s capacity to limit the unbridled use of international force.37 The 1974 consensus definition finally set the keystone – albeit a porous one – for a construction of the missing Code of Crimes and the International Criminal Court.
The Hopeful Skeptic
Professor Stone’s 1977 book, Conflict through Consensus: United Nations Approaches to Aggression, revisited the subject matter and findings of Aggression and World Order. In defense of his prediction that it was futile to expect a workable definition, Stone meticulously punched holes in practically every substantive paragraph of Resolution 3314. He pointed to discrepancies and inadequacies as well as omissions and ambiguities. He floated the cynical conclusion that the consensus was acceptable only because states wished to use its vague formulations to support their own political objectives. He acknowledged that a definition might be useful for trials of individuals for crimes against peace but not for facilitating instant voluntary international cooperation to halt a military crisis. Such an effective definition, he wrote, would be “rather unattainable, and may not even be worth searching for.”38 While denouncing the consensus, he still – begrudgingly and paradoxically – paid tribute to its existence as a visible reaffirmation of the indomitable hope, shared by most of mankind, that there must be legal limits to the use of armed force.
Stone’s basic paradox of being pessimistic and hopeful at the same time appears throughout his writings. He referred to “the noble aspiration of a more peaceful and just world” yet pointed to the “socio-political reality” which led him to believe that its pursuit was a hopeless endeavor.39 No one expected the definition to include world social reform yet Stone found obstacles that were not even on the table. To demonstrate the futility of a definition he argued that it might require a redistribution of planetary resources, a conclusion he presumably might welcome. He denied any prospective correlation between the definition of aggression and the creation and purpose of an International Criminal Court. He wrote that the existence of the consensus definition of 1974 had “made the creation of such a jurisdiction more improbable than ever” and concluded that it would be “a miracle” if such a court would be accepted.40
A year before his death in 1985 at the age of 78, Stone published Visions of World Order: Between State Power and Human Justice. He dedicated the little book to his grandchildren “in the hope that their world grows safer and more peaceful than now appears.” He remained plagued by his realistic perceptions and his pessimism. The prospect of attaining a peaceful world order was still described as a vague hope “devoutly to be desired.”41 Stone’s awareness of the nuclear arms race and the refusal of states to be bound by a common rule of law did not allow his mind to go with his heart’s desire. He noted progress made in many fields of international organization but highlighted the extension and proliferation of barriers to world peace rather than emerging signs of advancement in, by his own reckoning, significant areas ranging from the judicial settlement of international disputes to improvements in legal enforcement and fortified human rights protections.42 In the end he called for the brotherhood of man and counseled: “We should not despair before this task.”43
Where Do We Go From Here?
A half-century after Stone published his initial comprehensive analysis of problems of aggression and world order, the dilemmas he so carefully dissected then remain with us still. However, there has been significant progress in reaching certain goals he doubted, but hoped, could be achieved. An International Criminal Court was approved, by the overwhelming vote of one-hundred twenty in favor and seven against, in a frenetic five-week conference in Rome in 1998. The Rome Statute entered into force on July 1, 2002 as a result of the deposit of the sixtieth instrument of ratification on April 11, 2002. Currently, one-hundred, thirty-nine states have signed the Rome Statute, with one-hundred having ratified it to become a State Party. The Court has started to prepare for its work in the Hague. Its jurisdiction is strictly limited, subordinated to national criminal jurisdictions.44 Only crimes of a magnitude to concern the international community as a whole can come within its reach. The new criminal tribunal can deal only with charges of Genocide, Crimes Against Humanity and major War Crimes – all of which were carefully defined. The problem of defining aggression remained unresolved. Stone had recognized that even a minimalist court for a limited number of states would be well worthwhile. His conviction that it would never happen, since aggression could never be defined, has proven to be too pessimistic.
Stone, however, was nearly prophetic. Aggression, the most divisive issue for the Rome Conference Delegates, was sidestepped in a last minute maneuver. The Statute’s enumeration of crimes postpones the matter of defining aggression well into the future. Article 5 of the Statute provides that the Court has jurisdiction with respect to four crimes: “(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.” While Articles 6, 7, and 8 proceed to define the first three crimes listed in Article 5, the second paragraph of Article 5 renders dormant the Court’s jurisdiction over the last crime:
The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
Article 123 provides that seven years after the entry into force of the Statute, the UN Secretary-General shall convene a Review Conference to consider amendments. Article 121 requires a two-thirds majority of States Parties for the adoption of an amendment at a Review Conference or at any meeting of the Assembly of States Parties after that seven year period. However, an amendment will not enter into force until one year after seven-eighths of the States Parties have deposited instruments of ratification.
Thus, an aggression amendment cannot be adopted before June, 2009 and even then would still need ratification by a hyper-majority of the States Parties and await a year before actually according the Court jurisdiction over the crime. There is no way of knowing when, or if, the pre-conditions might be met. Until then, no one can be prosecuted by the Court for what the Nuremberg Judgment labeled “the supreme international crime.” The Assembly of States Parties has appointed special Working Groups to try to resolve the impasse. Professor Stone’s prediction that it would be a frustrating endeavor has, so far, been true. Whether it will also be futile remains to be seen. Should he prove to be right and the perpetrators of aggression remain immune, it will not bode well for humankind.
Professor Stone, even in his last years, did not hesitate to challenge the views of other legal titans with whom he disagreed in whole or in part. He argued that profound thinkers like Myres McDougal of Yale Law School, Richard Falk of Princeton University, and Wilfred Jenks, Director General of the International Labor Organization, all went too far in their world views.45 He tried to bring them down to earth by maintaining that they were espousing ethical programs for evolutionary action rather than describing a sociology of existing international law. Stone’s understanding of the nature of man and the structure of power did not allow him to take a more optimistic view. While he remained aware of the global dimensions of major problems and the increasing dangers of physical destruction, he warned against exaggerated expectations and utopian visions.46 Stone’s writings should be appreciated for their important insights despite a realism which sometimes verges on disabling pessimism.47
Professor Shabtai Rosenne, who represented Israel at the United Nations for many years, is one of the world’s leading scholars on both international courts and the law of treaties.48 As Israel’s delegate to the UN’s Sixth (Legal) Committee during the preparation of General Assembly Resolution 3314, he roundly criticized the resultant consensus definition of 1974. Like Professor Stone, throughout his highly distinguished career he has expressed a longstanding skepticism about defining aggression and also the efforts to create an International Criminal Court. Yet he has described the establishment of the ICC as one of the two major legal creations that “will shine on the record of the twentieth century...”49 Like Stone was, he is adept at finding faults, but, unlike Stone, he has perceived that most of the defects were in the process of being repaired. As a statutory matter, the need to expressly define the crime for the Court is clear; as a jurisprudential matter, there is no real need for a new definition of aggression. The definition of the Nuremberg Charter proved adequate for the Nuremberg Tribunal. It was also affirmed by the General Assembly, as well as, after years of study, by the expert International Law Commission. Taken together with existing precedents and coupled with the guidelines contained in the consensus definition, competent judges of the ICC have ample illustrations to enable sound judgments of guilt or innocence to be formed. Although Stone would argue the contrary, the term aggression is no more vague than “due process” or “fair trial,” which has never obtained a specific definition.50 The insistence upon another definition is not motivated by respect for the rule of law but, as Stone feared, by the aim of powerful states to evade it.
Hope is the engine that drives human endeavor. Without the expectation that a more humane and peaceful world is attainable, humankind will lack the enormous energy and creativity needed to save man from himself. The dreams of today can become the reality of tomorrow.
The last century has witnessed political and economic transformations that were previously inconceivable. New international courts to deal with crimes committed in Yugoslavia, Rwanda, and Cambodia, as well as Human Rights courts, now abound. By the universal condemnation of aggression, we can begin to transform human thinking away from a glorified war-ethic to a peace-ethic vital for human survival. It is not sufficient to convict major criminals for crimes against humanity and war crimes. It is far more important that those who plan and perpetrate aggressive wars be shown to be contemptible criminals and not heroes. We must eradicate the power of rhetoric to rationalize the killing of vast numbers of innocent human beings simply because they do not share the race, religion or ideology of their executioners. The murder of innocent men, women and children is a crime and an abomination no matter how sincere the motives or the sacrifices of the executioners. Increased recognition of the crime of aggression, in turn, should improve the recognition by states of their inviolable duty to prevent its commission in the first place.
The communications revolution offers unimaginable new opportunities to influence even the most deeply held convictions. The murderous absurdity in the nuclear age of trying to resolve ideological differences by massive military might must one day yield to human reason if humankind is to survive. McDougal outlined the necessary process, advocating the creation of acceptable new legal structures to control unacceptable coercive actions. Sohn wrote of global peace through a World Law. Stone, despite his despair, pointed to the essential ingredients of how to get from here to there: time, moderation, understanding and tolerance. Such changes cannot come quickly or easily or without blemish and opposition. Courage and perseverance hold the key to further progress.
A retrograde power jeopardizes the hard won progress made through the twentieth century. The United States government has opposed the International Criminal Court for reasons that are misguided and not persuasive. Washington has turned its back on allies such as England, France, Canada, Australia and others who support the Court, as well as the recommendations of the American Bar Association and the American Society of International Law.51 The National Security Strategy of the United States, as published in 2002, envisages preemptive military strikes without Security Council approval in defiance of the Nuremberg precedents as well as the UN Charter.52 Aggression cannot be disguised as humanitarian intervention or self-defense.
As this recent exploitation of the leeway in the existing legal apparatus demonstrates, the structure is insufficient for our times. The laws must be improved, not discarded. The International Criminal Court, with or without a revised definition of aggression, is like an infant that must be fostered to maturity. A working framework to adjudge international aggression is what Stone seemed to hope for but never clearly articulated or felt would be accomplished. Through scholarship, Stone and his peers advanced the goal of the establishment of a world order that upholds the rule of law so that all may live in peace and human dignity. It is up to the public and advocates, in the light of such work, to persuade decision makers who do not yet discern that law is better than war.
1 See Leonie Star, Julius Stone: An Intellectual Life (1992).
2 Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (1958) [hereinafter Aggression]. Originally published in London by Stevens & Sons, Ltd., in Berkeley by the University of California Press, and in Sydney by Maitland Publications Pty. Ltd. This reprint edition published in Clark, NJ by The Lawbook Exchange, Ltd., 2006.
3 Hans Kelsen, Sanctions in International Law under the Charter of the United Nations, 31 Iowa L. Rev. 499, 519 (1946):
It may be argued that the enforcement measures determined in Articles 39, 41, 42, and 45, are not “sanctions” since they are not established as reaction against a violation of obligations under the Charter . . . The enforcement actions are purely political measures to be used by the Security Council at its discretion for the purpose to maintain or restore international peace. This interpretation may be confirmed by the fact that according to Art. 39, the first Article of Chapter VII, the Security Council, after having determined the existence of a threat to the peace, breach of the peace, or act of aggression, may not only resort to enforcement action but may “make recommendations.”(footnote omitted) It has the choice between two different measures of which only the former could have the character of a sanction.
4 Jochen A. Frowein & Nico Krisch, Article 39, in The Charter of the United Nations: A Commentary 717, 722 (Bruno Simma et al. eds., 2nd ed. 2002).
5 London Agreement of 8 August 1945, in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 1 October 1946 8-9 (Nuremberg, 1949) [hereinafter Trials of the Major War Criminals]. France, the United Kingdom, the United States and the Soviet Union formed the Agreement.
6 See id., at 11-12, Charter of the International Military Tribunal, Part II. Jurisdiction and General Principles.
7 But see B.V.A. Röling, The Tokyo Trial and Beyond 34 (Antonio Cassese ed. 1993). Röling, a judge in the Tokyo Proceedings, perceived a gradual creeping of “Anglo-Saxon features” into the court presided over by predominantly English speaking judges. He attributed it to the Tokyo Charter’s “vague provision for ‘a fair trial.’” Röling viewed Tokyo’s development as consanguine with the observed occurrence that “the German lawyers [defending the accused at Nuremberg] often did not know how to behave in a procedure which was foreign to them.”
8 Paul Bowers, Research Paper 01/39, The International Criminal Court Bill [HL], Bill 70 of 2000-2001 15 (International Affairs & Defence Section, House of Commons Library, U.K. 2001).
9 Report of the Commission on the Responsibility of the Authors of War and Enforcement of Penalties for Violations of the Laws and Customs of War, 14 Am. J. of Int’l L. 95, 117 (1920).
10 Treaty of Versailles articles 1-26 (Part I.), June 28, 1919, [hereinafter Treaty of Versailles] in The Treaties of Peace 1919-1923, Vol. 1 121 (Carnegie Endowment for International Peace ed. 1924).
11 Id. at articles 27 – 440 (Part II. through Part XV.).
12 See John Maynard Keynes, The Economic Consequences of the Peace (1919). But see Margaret MacMillan, Paris 1919: Six Months That Changed the World (2002).
13 Treaty of Versailles, supra note 10, art. 227.
14 Id. at art. 228.
15 See Claud Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (1921).
16 Kellogg-Briand Pact, opened for signature Aug. 27, 1928, 46 Stat. 2343. Article 1 provided that the signatories “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” The United States and others still consider this treaty to be in force.
17 Trials of the Major War Criminals, supra note 5, at 216. “Violations of International Treaties . . . of principal importance” discussed in the Judgment included, in addition to the Kellogg-Briand Pact and the Versailles Treaty, the Hague Conventions of 1899 and 1907, and various bilateral agreements between Germany and other states in the form of Treaties of Mutual Guarantee, Arbitration, and Non-Aggression. See also Susan Lamb, Nullum crimen, nulla poena sine lege in International Criminal Law, in The Rome Statute of the International Criminal Court: A Commentary 736 (Antonio Cassese, Paola Gaeta, and John R.W.D. Jones eds. 2002). Lamb argued that nullum crimen, and its tandem concept, nulla poena sine lege emerged as norms of customary international law only after the Nuremberg proceedings and, at that time, neither concept could have been argued to have been more than a moral maxim and thus not a bar to the application of the crime of aggression.
18 Benjamin B. Ferencz, Defining International Aggression, The Search for World Peace: A Documentary History and Analysis, Vol. 1 171 (1975).
19 G.A. Res. 95 (I), pt. 2, at 1144 (1946).
20 G.A. Res. 177 (II), (Nov. 21, 1947).
21 Trials of the Major War Criminals, supra note 5, at 186, Judgment. See also Stone in Aggression 149-150:
It is a . . . vast understatement of the real obstacles to suggest, as some have done, that progress in the adoption of the draft Code of Offences against the Peace and Security of Mankind depends on an adequate definition of aggression.(footnote omitted) The difficulties appear to be of a different and far more formidable order; they may lie rather in the inaptness of the concept of “aggression”, however defined, (footnote omitted) to perform, in our actual world, the functions designed for it by those who have advocated and promoted the proposed international code.(footnote omitted)
22 G.A. Res. 897, U.N. GAOR, 9th Sess. (Dec.4, 1954).
23 G.A. Res. 177 (II), (Nov. 21, 1947).
24 G.A. Res. 688, U.N. GAOR, 7th Sess. (Dec. 20, 1952); G.A. Res. 895, U.N. GAOR, 9th Sess. (Dec. 4, 1954). The 1952 and 1954 Special Committees were followed by two more in 1959 (21 members) and 1967 (35 members). The final Special Committee culminated in the 1974 definition that became General Assembly Resolution 3314.
25 Aggression, supra note 2, at vii.
26 Aggression, supra note 2, at 26: “Such a mood may well be both wise and responsible as we observe the Twelfth General Assembly’s discussion in 1957 of the meagre results of its latest Special Committee on the Definition of Aggression.”
27 Id. at 182.
28 Id. at 183.
29 See id.
30 The following are among the reviews of Aggression in English speaking law journals: Sir Gerald Fitzmaurice, Comment: Inter Arma Silent Definitiones, 3 Sydney L. Rev. 71 (1958); Clyde Eagleton, Book Review, 52 Am. J. Int’l L. 364 (1958); Covey Oliver, Book Review, 108 U. Pa. L. Rev. 229 (1959); Louis Sohn, The Definition of Aggression, 45 Va. L. Rev. 697 (1959); Book Review, 72 Harv. L. Rev. 1403 (1959); Creighton Burns, Book Review, 1 Melb. U. L. Rev. 574 (1958); John Collier, Book Review, 1960 Cambridge L.J. 246 (1960); P.J. Fitzgerald, Book Review, 76 Law Q. Rev. 165 (1960); W.W. Kulski, Book Review 58 Colum. L. Rev. 1108 (1958); J. Roland Pennock, Book Review, 68 Yale L.J. 387 (1958).
31 Ironically, Sohn became the Bemis Professor at Harvard in 1961, assuming permanently the post that Stone had occupied in a Visiting capacity during 1956 while preparing Aggression.
32 Aggression, supra note 2, at 134 – 150.
33 Myres McDougal & Florentine Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 122, 260 (1961).
34 Toward a Feasible International Criminal Court xi (Julius Stone & Robert K. Woetzel eds. 1970).
35 See Benjamin B. Ferencz, The United Nations Consensus Definition of Aggression: Sieve or Substance?, 10 J. Int’l L. & Econ. 701 (1975).
36 1974 U.N.Y.B. 841. In addition to the U.S. delegate, several others, including representatives of Israel, Italy, and the United Kingdom called into question the legal status of the definition, positing “that it would have the same recommendatory status as any other Assembly resolution” thereby providing the “general guidelines” for the Security Council to identify aggression under Article 39.
37 See Benjamin B. Ferencz, A Proposed Definition of Aggression: By Compromise and Consensus, 22 Int’l & Comp. L. Q. 417 (1973).
38 Julius Stone, Conflict through Consensus: United Nations Approaches to Aggression 14-16 (1977).
39 Id. at 113.
40 Id. at 162.
41 Julius Stone, Visions of World Order: Between State Power and Human Justice xiv (1985).
42 Benjamin B. Ferencz, Book Review, 79 Am. J. Int’l L. 1084 (1985).
43 Stone, supra note 33, at 157.
44 Rome Statute of the International Criminal Court art. 1, Jul. 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002).
45 See Stone, supra note 33, at 33. Stone gave extended discussions of the following works: Myres McDougal, International Law, Power and Policy: A Contemporary Conception, 82 Hague Recueil 133 (1953); Richard Falk, Statecraft in an Era of Word Order, Delay and Renewal, Arthur F. Yencken Memorial Lectures, Australia National University (1974); and C. Wilfred Jenks, Common Law of Mankind (1958).
46 Id. at 43, 67.
47 See Julius Stone, Hopes and Loopholes in the 1974 Definition of Aggression, 71 Am. J. Int’l L. 224 (1977).
48 See Shabtai Rosenne, The Law and Practice of the International Court (3d ed. 1997); Shabtai Rosenne, The Law of Treaties: A Guide to the Legislative History
of the Vienna Convention (1970); Shabtai Rosenne, Developments in the Law of Treaties, 1945-1986 (1989).
49 Shabtai Rosenne, Poor Drafting and Imperfect Organization: Flaws to Overcome in the Rome Statute, 41 Va. J. Int’l L. 164 (2000).
50 Aggression, supra note 2, 119-133. Stone devoted a chapter to the analogy of due process and the criteria of aggression. Stone gave significant attention to contemporary American jurisprudence regarding substantive and procedural due process, contrasting the typical “fact-value complex” at issue in a municipal court with the kind that would be involved in adjudicating aggression in an international forum. Stone, at p. 123, found that: the lack of an effective international legislature, and of collective enforcement of legal rights generally, make unavailable to an international applying organ the course charted by [U.S. Supreme Court Justice] Brandeis [in the Oklahoma Ice Case (285 U.S. 262 (1931))] of not retreading the path of legislative judgment, but merely testing its results by the limiting notions of what is arbitrary and unreasonable on any reading of the whole situation.
51 Letter from Robert E. Hirshon, President, American Bar Association, to The President of the United States of America (Apr. 11, 2002) (on file with the American Bar Association); Letter from Monroe Leigh, Partner, Steptoe & Johnson, to Henry Hyde, Chairman, House Committee on International Relations (Feb. 21, 2001), attaching memorandum entitled “Misconceptions About the Proposed International Criminal Court” by current and former presidents of the American Society of International Law, Oscar Schacter, Hamilton Fish Professor of International Law and Diplomacy Emeritus & Special Lecturer, Columbia University School of Law; William D. Rogers, Partner, Arnold & Porter; Monroe Leigh, Partner, Steptoe & Johnson; Louis B. Sohn, Distinguished Research Professor and Director, Research and Studies, George Washington University Law School; Peter D. Trooboff, Partner, Covington & Burling; Louis Henkin, University Professor Emeritus and Special Service Professor, Columbia University School of Law; Edith Brown Weiss, Georgetown University Law Center; Thomas M. Franck, Murray and Ida Becker Professor and Director, Center for International Studies, New York University School of Law; Arthur W. Rovine, Partner, Baker & McKenzie; Stephen M. Schwebel, former Judge, International Court of Justice (Feb. 13, 2001) (on file with Arthur W. Rovine, President, American Society of International Law).
52 The National Security Strategy of the United States of America (2002), http://www.whitehouse.gov/NSC.pdf.
Heed the Lesson of Nuremburg: Let No Nation Be Above the Law
By Benjamin B. Ferencz
published: November 2005
source: The Forward, November 18, 2005
"We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow," Chief Justice Robert Jackson warned at the opening session of the Nuremberg war crimes tribunal, on November 20, 1945. "To pass these defendants a poisoned chalice is to put it to our own lips as well."
As we mark the 60th anniversary of the Nuremburg trials this week, it increasingly appears that Jackson's warning is falling on deaf ears in America.
Six decades have passed since we condemned Nazi war crimes and crimes against humanity, since "Never again!" became a universal slogan. Six decades have passed, but the more peaceful and humane world we envisioned at Nuremberg — one protected by rules of law that bind all nations large and small — remains elusive.
In response to the tragedy of the Holocaust laid bare at Nuremberg, the United Nations assigned legal committees to codify international law and establish a permanent international criminal court. The proposed court, commonly known as the ICC, would help deter such crimes in the future by holding personally accountable those leaders responsible for genocide and massive crimes against humanity. But faced with opposition by conservative American senators, it took 40 years before our government ratified the Genocide Convention in 1988.
A decade later, American obstinacy against codifying international law was again on display. In 1998, high representatives of 120 nations voted to accept carefully negotiated statutes for a permanent ICC. It was a historic achievement, hailed by U.N. Secretary General Kofi Annan as "the hope of future generations."
Only seven countries voted against the new court. The United States, under pressure from the Pentagon and congressional conservatives, was among them. So, too, was Israel, which found, despite having worked long and hard for the establishment of such a court, a minor technicality for objection and reluctantly followed the United States in voting "no."
The next year, President Clinton told the U.N.'s General Assembly that he supported the establishment of an ICC. On December 31, 2000, shortly before he left office, Clinton instructed his ambassador, David Scheffer, to proceed to the U.N. on a snowy New Year's Eve to sign the ICC treaty. By pre-arrangement, Israel again followed America's lead and signed.
However, without ratification by two-thirds of the Senate, America's signing of the treaty merely indicated support for the ICC's goals and bound it only to not sabotaging its objectives. The powerful chairman of the Senate Foreign Relations Committee, Jesse Helms of North Carolina, quickly made clear his unalterable opposition to the ICC. And so, despite hesitations by several other major powers, including China, India and Pakistan, nearly 100 nations ratified the Rome Treaty in record time and the ICC went into effect July 1, 2002 — without America's participation.
Helms no longer serves in Washington, but the Republican administration of President Bush has more than made up for the senator's absence. Two months before the Rome Treaty was ratified, John Bolton — a protégé of Helms who was then an assistant secretary of state and is now America's ambassador to the U.N. — sent a one-paragraph letter to the U.N., stating that the United States has no intention of ever becoming a party to the Rome Treaty, and hence is not legally bound by Clinton's signature. The repudiation of the official signature of an American president was unprecedented, and was seen by many as an unnecessary slap in the face of the great number of nations that had supported the ICC.
The Bush administration, backed by the Republican-led Congress, has boycotted the new court and done everything possible to destroy its power. Opponents of the ICC allege that its prosecutors may subject American servicemen to politically motivated charges that would inhibit foreign intervention for humanitarian purposes. Yet no other country in the world has raised this objection.
In fact, according to its own statute the ICC is permitted to deal only with crimes "of concern to the international community as a whole." This means that only leaders responsible for planning or perpetrating major crimes against humanity will be targets of the court.
The Bush administration's other objections to the court are equally untenable. To begin with, guilty knowledge and criminal intent must be established beyond reasonable doubt. Furthermore, the U.N. Security Council can direct the ICC to suspend any prosecution that might interfere with peace negotiations. And American objections on constitutional grounds are also unsupported by the facts.
Jingoistic slogans about protecting national sovereignty may sound appealing to an uninformed public, but try as the current administration might, it cannot eliminate the need for certain universally binding rules of humanitarian law in an increasingly interdependent world.
Simply put, current American fears are both misguided and unpersuasive. Not only does the ICC's carefully negotiated statute guarantee no retroactivity and fair trials, but it also requires nations to have priority to try their own citizens. The ICC can exercise jurisdiction only if the state of the perpetrator is unable or unwilling to provide a fair trial.
No prosecutor in human history has been subjected to as many controls as exist in the ICC. The prosecutor is under strict administrative and budgetary controls of the court's Assembly of State Parties, which includes such staunch allies of America as Great Britain, Canada, Australia and the European Union. The American Bar Association, every former president of the American Society of International Law and a host of the most renowned and respected international lawyers in the United States, Israel and around the world support the ICC.
How, then, to explain America's objections — which, to many informed observers, seem to border on the irrational?
The American public deserves to be told the truth: The stated opposition of the Bush administration to the ICC is a sham. It is disgraceful that our government expects the rest of the world to simply swallow the argument that the United States is above the law. Those who oppose the ICC — whose most fundamental premise is that law applies equally to everyone — do not believe in the rule of law.
One need only look at the American Service-Members' Protection Act to find evidence of the administration's belief in American exceptionalism. The legislation, mockingly called "The Hague Invasion Act" by many Europeans, authorizes the president to use "all necessary means" to liberate any American who might be held in custody by the ICC in The Hague.
For further proof, one could examine the various "immunity agreements" that all nations receiving American aid are requested to sign. If they refuse to stipulate that no Americans, or their employees, will be sent to the ICC, the nations risk forfeiting all American military and economic aid — even if the recipient country needs the funds in order to pursue terrorists and drug traffickers.
Such irrational behavior, of course, can only evoke suspicion about American intentions and resentment toward Washington by intimidated signatories. Not one single American has been helped in any way by these coerced agreements — not one.
And little wonder that many are suspicious of our intentions. Earlier this year, Secretary of Defense Donald Rumsfeld proclaimed America's intention to bypass, if necessary, restraints on the use of force codified by the U.N. Charter. Washington reserves the right, he warned, to anticipate hostilities and to strike first and pre-emptively — alone, if necessary — to counter a perceived threat to our national security.
Now, I do not wish to compare any Americans to the Nazi leaders. But after hearing Rumsfeld's words, I could not avoid being reminded of the argument put forward by the lead defendant in the Einsatzgruppen trial at Nuremberg, S.S. General Otto Ohlendorf. When asked to explain why his unit murdered more than 90,000 Jews, including their children, the remorseless defendant casually explained that it was justified as anticipatory self-defense.
Germany anticipated an attack from the Soviet Union, Ohlendorf argued, and since Jews were perceived as supporters of Bolshevism, they presumably posed a potential future threat to German national interests. And if Jewish children knew that their parents had been executed, he continued, they, too, might become enemies of Germany, and therefore they had to be killed.
In a carefully reasoned judgment by the three judges presiding over the case — all of them American — Ohlendorf's defense was held to be untenable, and the S.S. general was hanged.
Sixty years later, I am afraid, this and other lessons from Nuremberg are lost on the Bush administration.
Saddam Hussein's Trial: A Letter to The New York Times
By Benjamin B. Ferencz
published: September 2005
publisher:The New York Times, October 2005
To the Editor:
Gary J. Bass argues ("Try and Try Again," Op-Ed, Sept. 26) that a trial of Saddam Hussein by the Iraqi war crimes tribunal for murdering 143 villagers in 1982 "is a good start but not a good finish."
It's not even a good start. It trivializes the enormity of his crimes and ignores the progress in international criminal law made since the Nuremberg trials. Saddam Hussein, and possibly some of his leading accomplices, should face charges of aggression against Kuwait, crimes against humanity against the Shiites and Kurds and major war crimes. Only a few illustrative cases need be specified. The trial should be absolutely fair with strict time limits set for both prosecution and defense.
Although humanitarian law has moved away from death sentences, Iraqi judges should decide what is appropriate to bring justice, peace and reconciliation to their war-ravaged country.
Benjamin B. Ferencz
New Rochelle, N.Y., Sept. 27, 2005
Letter to Senator Richard G. Lugar, re: Bolton Nomination
By Benjamin B. Ferencz
published: April 2005
Senator Richard G. Lugar, Chairman
U.S. Senate Committee on Foreign Relations
Washington DC 20510-6225
April 11, 2005
Dear Senator Lugar:
Almost 60 years ago, I represented the United States as a Chief Prosecutor in one of the Nuremberg war crimes trials. We earned the respect and admiration of the world by upholding the principles, espoused by Justice Robert Jackson and General Telford Taylor, that crimes against humanity could not go unpunished and that law must applied equally to everyone I have never before raised objection to any political appointment but I cannot remain silent regarding your consideration of John Bolton to be our chief representative at the United Nations. I am deeply convinced that his confirmation would be seriously detrimental to the interests of our nation.
There is no doubt that Mr. Bolton is an intelligent and patriotic American who is entitled to have opinions that differ from my own. The views he has publicly expressed have been so far removed from the Nuremberg principles and the rule of law that they have astounded and alienated nations all over the world. I shall refer only to areas where I feel particularly qualified to comment.
I am a Harvard Law School graduate (1943), and former combat soldier who was awarded five battle stars in World War Two. I have devoted most of my life trying to help create a more peaceful and humane world. As an unpaid observer, I have spent much time at the UN working for the creation of the International Criminal Court to strengthen the rule of law. John Bolton, despite pretensions t the contrary, has been working to destroy the ICC in its cradle. The arguments made in opposition to the ICC are demonstrably false. The ICC poses no threat whatsoever to US military personnel. The details are spelled out in my books and articles shown on my website.
I will merely note that support for the ICC has come from the American Bar Association and many other respected legal associations, every former President of the American Society of International Law, a host of outstanding legal experts including former Ambassador Shabtai Rosenne (Va. J. Int.L. 164) who represented Israel with distinction at the United Nations for many years. The nearly 100 nations that have ratified the Statute for the Court, as well as those many small countries that have been badgered into signing agreements to immunize all US national from ever being sent to the ICC, view the Bolton-supported efforts with scorn and apprehension. His confirmation would be received as another slap in the face. Such actions make enemies of friends. Bolton's declarations that international law does not exist, that the US has a legal right to ignore its treaties and to launch preemptive strikes against presumed enemies, all repudiate what we stood for at Nuremberg. He has been a key spokesman for a point of view that is not shared by all Americans. His rejection by the Senate would be a reaffirmation that America has not lost the ideals which made it great.
Since I am now in my 86th year, may I presume to request that you circulate this letter among all of your colleagues for their consideration.
With best wishes to you all,
The Legality of the Iraq War
By Benjamin B. Ferencz
published: April 2005
The following essay was written by Ben Ferencz a few days after the secret information contained therein became public. Since the American Society for International Law had published a comprehensive scholarly review of the legal issues as seen from various perspectives, Ferencz submitted his essay, on April 10, 2005, as an informational postscript to the ASIL study. Whether the Society will publish it in any form is still uncertain. Readers are cautioned not to draw any final conclusions until the facts have been verified from US official records.
Postscript to Agora: Future Implications of the Iraq Conflict
The London Times and other media recently disclosed secret documents that contain information that merit a postscript to the excellent 2003 Agora, edited by Lori Fisler Damrosch and Bernard H. Oxman, on "Future Implications of the Iraq Conflict."
It appears that when British Prime Minister Tony Blair met US President George W. Bush in Crawford, Texas, in April 2002, they agreed that Britain would join the US in bringing about a "regime change" by removing Iraq's President, Saddam Hussein, from office. On July 23, 2002, Blair held a top secret meeting at Downing Street to discuss the subject with his key advisers. The chairman of the joint intelligence committee, Sir John Scarlett, opened the meeting by getting right to the point. The only way to overthrow Saddam was likely to be "by massive military action."
Sir Richard Dearlove, Chief of MI-6, Britain's intelligence agency, then reported on his talks in Washington with his American counterpart, George Tenet, Director of the US Central Intelligence Agency. Dearlove, according to the secret minutes, was convinced that the US had no patience with the United Nations or the Security Council. "Bush wanted to remove Saddam through military action justified by the conjunction between terrorism and WMD." There had been little discussion of Iraq's possession of weapons of mass destruction. War was "seen as inevitable." Dearlove warned that the intelligence and the facts were being fixed around the policy.
The briefing papers prepared by the civil service staff for the July 23rd meeting noted that "US views of international law vary from that of the UK and the international community... Regime change per se is not a proper basis for military action under international law." Foreign Secretary Jack Straw said the case for war was "thin." Attorney General Lord Goldsmith also expressed doubts about its legality. He seemed to feel that Security Council backing was vital. Other options considered as possible justification for the use of force included self- defense against WMD, or humanitarian intervention against terrorism. None of them seemed persuasive. Admiral Sir Michael Boyce, head of the defense staff was given to the end of the week to present the Prime Minister with the proposed battle plans. The participants set about to devise the most acceptable justification for an invasion and to prepare for it militarily as well as politically by shaping public opinion to support the use of force.
On August 3, 2002, UK military spokesmen briefed the Pentagon and US Defense Secretary Donald Rumsfeld on the status of UK's preparation. The next day they briefed President Bush. Coordinated plans for the attack on Iraq continued, despite a reported private statement by Britain's Foreign Secretary Straw that "Saddam was not threatening his neighbors, and his WMD capability was less than that of Libya, North Korea or Iran." His legal advisers in the Foreign Office had submitted a Confidential 8-page memorandum casting doubt on whether Security Council (SC) resolutions 678 (1990) or 687 (1991), that had authorized members "to use all necessary means" to restore peace in the area" could justify the forceful invasion of Iraq.
Straw made the interesting point that if the SC would again demand that Saddam allow UN inspectors to confirm that he had complied with earlier resolutions to destroy his WMD and, if the inspectors discovered that he had failed to do so, that might justify a renewed use of force. A refusal to accept inspection would also be politically helpful to justify the invasion. The best that could be achieved, however, was SC Res. 1441 of November 8, 2002, again demanding that Iraq disarm and allow UN inspectors to report back within 30 days. The Resolution ''recalled" that Iraq had repeatedly been warned that it would "face serious consequences as a result of its violations". The "decision" taken by the Council was to "await further reports" and then "to consider the situation." Troops were being mobilized for a combined massive military assault but there was still no clear agreement on the legal justification for such action.
On February 11, 2003, Attorney General Lord Goldsmith went to Washington where he conferred with leading lawyers in the Bush administration - including White House lawyer Alberto Gonzales, State Department Legal Adviser William Taft IV, Jim Haynes, Adviser for the Defense Department and US Attorney General, John Ashcroft. A 13- page memo by Lord Goldsmith dated March 7, 2003, still expressed doubts about the legality of the contemplated assault on Iraq but seemed to be softer than the firm stand taken by him at the meeting of July 23, 2002.
Ten days later, on March 17, 2003, and just two days before the war was scheduled to begin, Goldsmith made a summary statement in Parliament in which he noted that a reasonable case could be made "for war without a Security Council resolution." William Taft IV is reported to have commented that the Goldsmith statement "sounded very familiar" - presumably because it echoed the US position.
In his report to his Prime Minister, Goldsmith wrote: " I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorize the use of force...nevertheless, having regard to the information on the negotiating history, which I have been given, and to the arguments which I heard in Washington, I accept that a reasonable case can be made that Resolution 1441 is capable in principle of reviving the authorization in 678 without a further resolution." He noted that such an argument could only be sustainable if there was clear evidence of non-compliance and non-cooperation by Iraq. These qualifying conditions were not mentioned in the 1-page summary given to the Cabinet on March 17.
UK military leaders had been calling for clear assurances that the war was legal under international law. They were very mindful that the treaty creating a new International Criminal Court in the Hague had entered into force on July 1, 2002, with full support of the British government. General Sir Mike Jackson, chief of the defense staff, was quoted as saying "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars. I have no intention of ending up in the next cell to him in the Hague." On the eve of war, the British Attorney General's abbreviated statement of March 17 was accepted as legal approval of the official US/UK line. Not everyone in the British government could agree that the war that was about to begin was legal.
Prime Minister Blair chose to rely on the summary opinion of his Attorney General rather than the views of the Foreign Office which, ordinarily, would be responsible for opinions affecting foreign relations and international law. On March 18, 2003, the Deputy Legal Adviser to the Foreign Ministry, Elizabeth Wilmshurst, resigned. Her letter of resignation, after more than 30 years of service, stated: "I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution..." She had, for many years, represented the UK at meetings of the UN preparatory committees for an international criminal court and was recognized as one of the foremost experts on the subject of aggression. Her letter stated..."an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances that are so detrimental to the international order and the rule of law."
Elizabeth Wilmshurst remembered that the Nuremberg trials had condemned aggressive war as "the supreme international crime" That decision had been affirmed by the UN General Assembly and followed in many other cases. She demonstrated Professor Tom Franck's concluding appeal in the 2003 Agora that "lawyers should zealously guard their professional integrity for a time when it can again be used in the service of the common weal."
Benjamin B. Ferencz
A former Nuremberg Prosecutor
J.D. Harvard (1943)
97 AJIL 553-642 and Special Supplement, Sept, 2003.
The Sunday Times, May 1, 2005.
The Observer, May 1, 2005.
Sunday Times, July 23, 2002, with Secret memo of the July 22, 2002 meeting.
Channel 4 News extract from Minute of the Attorney General to the Prime Minister, March 7, 2003.
The Independent, London, March 25, 2005 with text of Wilmshurst's resignation letter.
War Crimes Tribunals: Response to Eric A. Posner
By Benjamin B. Ferencz
published: January 2005
source: The New York Times, January 6, 2005.
To the Editor:
Eric A. Posner's denunciation of both the International Court of Justice and the recently established International Criminal Court in The Hague ("All Justice, Too, Is Local," Op-Ed, Dec. 30) repudiates the highest ideals espoused by the United States during the Nuremberg war crimes trials. I take issue with his depiction of the records, purposes and powers of these tribunals. He does not note that every nation has the right to try its own citizens.
The prosecutor is subject to strict controls, including close supervision by Britain, Canada and a host of other nations that are being alienated by bellicose intimidation and demands for immunity for all Americans. Mr. Posner expresses fear of politicization, yet favors Security Council control of the court.
Only lawbreakers need fear the rule of law. Mr. Posner warns international organizations to "adapt to great power politics" or "wither on the vine." We may all "wither" if we continue the power politics that inevitably leads to war rather than law.
Benjamin B. Ferencz
Delray Beach, Fla., Dec. 30, 2004
The writer was a prosecutor at the Nuremberg war crimes trials
Please see my website under "Articles" and click on "Misguided Fears About the International Criminal Court." Then make up your own mind. If you agree, please free to disseminate this message. What kind of government do you want? Good luck!