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Illegal Armed Force as a Crime Against Humanity

 

By Benjamin B. Ferencz

 

ABSTRACT:

 

At the Nuremberg Trials in 1946, the waging of aggressive war was indelibly branded as “the supreme international crime,” The United Nations affirmed the Nuremberg principles and UN committees began creating a new International Criminal Court (ICC) to help maintain future peace. Half a century later, in 1998, in Rome, an enabling statute for an ICC was overwhelmingly acclaimed by 120 nations. After speedy ratification, the Court became operational in 2002. It was authorized to deal only with genocide, crimes against humanity, war crimes and the crime of aggression. However, several major powers were not prepared to accept any international judicial review of their perceived sovereign right to wage war; the same hesitations still prevailed at an amendment conference in Kampala, Uganda in 2010. Although aggression was re-defined by consensus, jurisdiction by the ICC was again postponed for consideration at some later date after 2017. The crime of aggression still hangs in legal limbo. There is a dangerous gap in the law.

Deterrence is the primary goal. If no court is competent to try aggressors, the crime is more likely to be encouraged than deterred. This paper seeks to narrow the immunity gap by suggesting a practical legal solution to discourage aggressive wars. Legal quibbling encourages evasions. Illegal use of armed force should be punishable as “other inhumane acts” within the meaning of the ICC prohibition of crimes against humanity. After considering the views of respected military commanders, distinguished academicians and noted human rights advocates, this paper concludes that those leaders who, without lawful justification and with the requisite knowledge and intent, are responsible for foreseeable large scale civilian casualties, should be accused of crimes against humanity and held accountable by fair trial in a competent national or international court of law.

 

From Nuremberg to Kampala

 

The history of humankind has been the history of wars. The father of international law, Hugo Grotius, had called for humane conduct even in warfare “lest by imitating wild beasts too much we forget to be human.” [2] Following the devastating U.S. civil war, Francis Lieber’s code set forth humanitarian Rules for the Governance of Armies in the Field. [3] At The Hague in 1899, delegates adopted the famous Martens Declaration that “belligerents remain under the protection of the law of nations as they result from the usages established among civilized peoples, from the law of humanity and the dictates of the public conscience.” [4] The Commission on Responsibilities for World War I concluded that those who violated “the laws of humanity” were “liable to criminal prosecution.” [5] Rules outlawing the inevitable atrocities of war almost invariably contained exceptions in case of “military necessity” or “national interests” but the “laws of humanity” became an accepted minimum standard of binding customary international law.

 

In 1945, following the horrors of World War II, the International Military Tribunal (IMT) at Nuremberg, together with the United Nations, sounded a wake-up call. New thinking and new institutions would be needed, as stated in the preamble to the U.N. Charter, “to save succeeding generations from the scourge of war.” [6] The Charter clearly prohibited the threat or use of armed force except in self-defense against an armed attack or after authorization by the Security Council. [7] U.S. Supreme Court Justice Robert Jackson, America’s most distinguished jurist, served as Prosecutor for the United States at the IMT. He reported to the President that the American legal position “would be based on the common sense of justice.... We must not permit it to be complicated by sterile legalisms developed in the age of imperialism to make war respectable.” [8] The IMT declared: “This law is not static but by continual adaptation follows the needs of a changing world.” [9]

 

IMT jurisdiction was based on existing customary international law and treaties which condemned Crimes Against Peace, War Crimes and Crimes Against Humanity, such as murder, extermination, and “other inhumane acts committed against any civilian population.” [10] General Telford Taylor (later a professor at Columbia University), who directed a dozen subsequent trials at Nuremberg, following the IMT, concluded, in a prescient speech in Paris in April, 1947: “If the trials in Nurnberg . . . can help to expand and refine the legal principles of crimes against humanity, and if the nations of the world can establish a permanent jurisdiction for their punishment based on practical, enforceable and enlightened principles, we will indeed have reached a turning point in the history of international law.” [11]

 

Expanding and refining legal principles of crimes against humanity was not something that could be accomplished quickly or easily. Universal declarations of human rights and humanitarian proclamations have multiplied over the years but enforcement of the noble goals has been very slow in coming. Perpetrators of crimes in armed conflicts insist that their deeds were all necessary and justifiable; victims claim just the opposite. If such disputes cannot be resolved by peaceful means, and there is no impartial court competent to render a binding judgment, violence is unavoidable. Yet, we may be approaching a turning point as we peruse recent milestones that mark the progress in protecting humanity through law.

 

The 1948 General Assembly Universal Declaration of Human Rights proclaimed the inalienable right of all members of the human family to “freedom, justice and peace in the world.” [12] “Life, liberty and security of persons” was fundamental. [13] Another Resolution, in 1984, proclaimed that “the peoples of our planet have a sacred right to peace.” [14] In the 1990’s the UN Security Council created temporary courts to punish genocide and “other inhumane acts” committed in Rwanda and Yugoslavia. Yet, some powerful governments that supported the human rights system when it applied to others were unwilling to subject their own conduct to legal scrutiny. Despite such vacillation, the gradual movement toward a more humane world order protected by law was unmistakable. There has been a slow awakening of the human conscience.

 

In 1998, nations meeting in Rome adopted a Statute for an International Criminal Court (ICC) based on the Nuremberg precedents. The treaty establishing the Court received the required 60 ratifications and became operational for over 70 countries in July 2002. Ten years later the number of accepting State Parties had reached 121. With the creation of the ICC, for the first time in human history, a permanent international criminal court came into existence. Only four core crimes “of concern to the international community as a whole” came within the jurisdiction of the Court: genocide, crimes against humanity, war crimes and the crime of aggression.

 

Major powers were still opposed, as they had always been, to having any foreign court adjudicate the legality of their military actions. They balked at allowing the ICC to try aggressors. Small states insisted that without being able to punish aggression - "the mother of all crimes" - the ICC would be a farce. As a compromise, aggression was recognized as a crime, but the ICC was prohibited from dealing with it until certain additional restrictive conditions were met. What was demanded was an acceptable new definition of aggression and assurances that Security Council powers would not be diminished. No one seemed to notice, or wanted to notice, that in 1974, after years of negotiation, a consensus definition of aggression had already been reached and accepted by the UN General Assembly (GA Res. 3314). [15] In any event, the impasse in Rome regarding the crime of aggression was bridged by postponing further consideration pending a Review Conference intended to be convened seven years later.

 

In June 2010, the promised Review Conference was finally held in Kampala, Uganda. The participants seemed to acknowledge at the outset that decisions would be reached only by consensus. “Consensus,” of course, meant that everyone had a veto right about everything. Under such restraints it would be exceedingly difficult to reach clear meetings of the mind on any important matters of substance. Nevertheless, a revised consensus definition of aggression was finally reached that was largely based on the 1974 consensus. [16] Its most significant change was that the aggression had to be a “manifest” violation of the UN Charter. [17] What actually was meant by “manifest” remained uncertain. Still, no longer could the convenient but spurious argument be made that aggression could not be prosecuted because it had not been defined.

 

Yet, once again, as had been done in Rome, under pressure from powerful states, giving the ICC active jurisdiction over the crime of aggression was not accepted. As a compromise, it was agreed to postpone the issue for reconsideration at some unspecified future date after 2017. It was an echo of the lame historical excuse: “the time is not yet ripe.” Thus, malevolent leaders responsible for what the IMT called “the supreme international crime" still remained beyond the ICC’s reach. If illegal war-makers were to be deterred by the threat of punishment by a court applying “enlightened and enforceable principles”, new ways had to be found to end the existing immunities.

 

Protecting Human Rights Through Law

 

“Enlightenment” begins with the recognition of the need for change. One of the primary objections to accepting new international rules to govern national conduct was the misguided complaint: “Our sovereignty is at stake!” For thousands of years, war was the accepted path to conquests, riches, and glory. Centuries ago, Thucydides articulated the oft-quoted observation: “We know as practical men that the question of justice arises only between those equal in strength, and that the strong do what they can, and the weak submit.” [18]

 

Power was decisive. International law did not exist.

 

The treaties of Westphalia in 1648 ended 30 years of religious conflict in Europe by creating a regional system of sovereign States in which a monarch reigned supreme only within his realm. Conquest by combat remained legitimate. This condition persisted even up to the formation of the League of Nations, which recognized war-making as lawful – as long as the enemy was given three months’ notice. [19]

 

The Nuremberg principles sought to substitute a rule of enforceable humanitarian law to replace the horrors of armed conflict. Those who stubbornly refused to be bound by new international rules failed to recognize that, in today’s interdependent and increasingly democratic world, sovereignty belongs not to a monarch who is above the law but to the people. The notion of absolute sovereignty is absolutely obsolete.

 

Enlightened military leaders who experienced armed combat learned the hard way that law is always better than war. When Dwight D. Eisenhower, who had been Supreme Commander of the victorious allied forces in World War II, became President of the United States, he made an important speech in which he said: “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.” [20] He was echoing General Douglas MacArthur, Commander in the Far East, who, in 1946, praised the new constitution of Japan, in which the Japanese people forever renounced war as a sovereign right.

 

MacArthur, a great war hero, called for universal renunciation of armed might. He pointed to modern science and warned that failure to unshackle ourselves from the past “may blast mankind to perdition.” [21] Recently retired Chairman of the US Joint Chiefs of Staff, Admiral Mike Mullen, has repeatedly declared that he would rather prevent or deter a war than fight one. [22] It should be noted that prohibiting the illegal use of armed force is designed to protect military as well as civilian victims.

 

Many of our most far-sighted international legal scholars, such as revered Professors Hersch Lauterpacht [23], Myres McDougal [24] and his protégé, Michael Reisman [25] recognized that the human rights of the individual can best be protected by an expansive and not restrictive characterization of prohibited behavior and that we should look to the future, and not to the past, in developing norms of acceptable conduct. With respect to crimes against humanity, the highly esteemed Prof. Cherif Bassiouni has observed that “the purpose of the prohibition is to protect against victimization irrespective of any legal characterization or the context in which it occurs.” [26] In his recent book “Unimaginable Atrocities,” Prof. William Schabas recognized that taking the Nuremberg principles forward is “the mission of international justice, as well as international human rights, as a civilizer not only of individuals but also of nations.” [27]

 

Countless non-governmental organizations and official UN agencies have recognized the need for improved protection of humanity through law. In the absence of competent courts and political will by world leaders, the right to peace proclaimed in a wide variety of resolutions remained little more than an articulated but unenforceable aspiration. Declaring the law is one thing; respecting or enforcing it is another. The evolution of international law had not yet reached the point where institutions or means were available for effective peaceful enforcement of the rule of rule of law. [28] The existence of the ICC, with its legally binding statute that required all parties to the treaty to honor their obligations, held forth the implied promise that the future would be better than the past. Hope, however, does not become reality without sustained efforts to persuade the sceptics.

 

As a first step, all States Parties to the Rome Statute who were present in Kampala should now ratify the amendments on aggression, including the negotiated understandings agreed to by consensus in 2010. [29] Failure to provide the necessary [30] ratifications would undermine the utility and integrity of the entire Kampala effort. Those States Parties that accepted and ratified the Rome Statute are already legally bound by that treaty to assume primary responsibility for supporting the ICC goals and mandates. If they fail to ratify their own Kampala consensus, they foul their own nest.

 

Professor Otto Triffterer of the University of Salzburg, one of the earliest champions of an international criminal court, in his latest comprehensive commentary drew attention to the Rome Statute’s preambular mandate stressing “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” [30] The statute’s preamble similarly speaks of punishment “at the national level and by enhancing international cooperation” and emphasizes that the ICC is “complementary to national criminal jurisdictions.” [31] This principle of “complementarity” meant that it was only when domestic courts were unwilling or unable to provide a fair trial that ICC intervention was appropriate. Of course, it made good sense to rely first on local courts where victims could see that justice was being done, evidence was more readily attainable, and costs would be limited. To be sure, the Security Council, as provided in the Charter and the Rome Statute, can always intervene in the interest of world peace. [32]

 

It is particularly notable that States can trump and bypass ICC powers by enacting their own local laws authorizing their own courts to try any of the ICC crimes. Leaders who violate international criminal should have to answer to their own courts and their own citizens. If that is not possible or feasible, those responsible for massive killings should not expect the world to turn a blind eye to their crimes, but should expect that in the final analysis justice will be done by the ICC.

 

The Primacy of National Courts

 

Addressing the Assembly of State Parties on 12 Dec. 2011, the highly respected United Nations High Commissioner for Human Rights, Navi Pillay, called on nations to fulfill their obligations by enacting comprehensive legislation incorporating the Rome Statute into their domestic criminal codes. She called upon the Assembly to work “toward ending impunity for gross human rights violations that amount to the worst crimes.” [33] She was right to note that the primary objective “is not to bring as many perpetrators as possible before the ICC, but to get states to diligently implement their obligation to prosecute international crimes.” [34] In reviewing the work of the ICC on its tenth anniversary, the President of the Court, Judge Sang-Hyun Song, correctly observed that “the most important aspect of the fight against impunity takes place in each country, society and community around the globe. Domestic justice systems must be strong enough to be able to act as the primary deterrent worldwide…” [35]

 

The Human Rights Council Advisory Committee on the right of peoples to peace has recently similarly emphasized that there is a universal right for all peoples to be free from the use of force in international affairs, and that states should do their part in advancing such rights. [36] The net by which perpetrators of international crimes may be apprehended and brought to justice is still under construction. Yet, if enough states carry out their acknowledged primary responsibility to enforce the rule of law, those leaders responsible for massive human rights violations will eventually be left with no place to hide.

 

What is needed now is new national criminal legislation to put perpetrators of human rights violations on notice that their evil deeds will no longer be tolerated. As far as punishing the crime of aggression is concerned, the lock will unfortunately remain on the closed ICC door until some unpredictable date after 2017 – at the earliest. Still, it may be possible for the essence of the egregious offense to make its way into national criminal jurisdictions of peace-loving nations. It should be noted that national laws to protect the right to life and other peaceful humanitarian goals do not require Security Council approval.

 

It is, of course, inevitable that on such difficult problems as war and peace there will be differences of opinion. Those powerful states that prefer to rely on their own unrestrained military might remain free to go their own ways. As long as such differences are dealt with by peaceful means they deserve respect. But the use of armed force, particularly against innocent civilians, should not be tolerated. If the Security Council fails in its duty to maintain peace, other lawful means must be found to protect innocent victims and end the outrage that leaders responsible for the most atrocious crime of illegal war-making remain immune. Recent experience has shown that when illegal violence becomes unbearable, tyrants may be toppled by the awakened und unrestrained outrage in the court of public opinion; surely, a peaceful legal resolution of such conflicts would be more humane and in everyone’s interest.

 

Although uniformity is desirable, different countries have differing legal systems, and different terminology may be needed to enable national codes to curtail the illegal use of force. If the term “aggression” seems too politically sensitive, States should consider criminalizing the offense under a more general description. “The illegal use of force” should be recognized and condemned as a “crime against humanity.” Of course it would have to be more explicitly defined and explained, but it might induce militant extremist groups or states to pause or desist from causing great suffering to large numbers of blameless victims.

 

Even powerful countries may come to see the value of restraining their own military might. The post-war constitutions of Japan and Germany, for example, contain provisions recognizing that aggression is a crime and curtailing their own right to use armed force except in self-defense. [37]

 

Many other states condemn various human rights violations such as genocide, apartheid, torture and other crimes against humanity as punishable in their national courts because they are recognized as customary international law that should bind all countries. Other states do not recognize customary international law unless specifically adopted in their own legislation. [38] The humanization of man’s most inhumane activity must be an ongoing process in the interest of our common humanity.

 

To be sure, many smaller states may need help in adapting their local laws to meet contemporary needs or threats. The ICC should, as a form of “positive complementarity,” assist States to close the impunity gap that now exists for crimes that were universally outlawed at Nuremberg. They should let it be known that if nations fail in their duty to protect their own citizens from slaughter, the responsible leaders may be brought to The Hague to face trial for their inhumane acts. Similarly, NGO’s and other supporting institutions can play a valuable role with respect to informing and galvanizing support from the general public and sympathetic legislators. The goal should be to include in national criminal codes all of the crimes that were punishable in Nuremberg and are listed as crimes by the ICC and other new international courts. Humanitarian law enforcement begins at home.

 

Some Practical Suggestions

 

The Rome Statute that binds the ICC spells out the parameters of all of the crimes within its own current jurisdiction. Enumeration of certain actions as “crimes against humanity” in the ICC statute and similar codes was never intended to be exhaustive or exclusive. Crimes which were separately categorized as “genocide” and “aggression” were being dealt with by special UN committees, but such separate crimes could very well have fit within the broader categorization of “crimes against humanity”. The ICC statute includes, by way of example, acts which qualify as crimes against humanity: murder, enslavement, apartheid, rape, torture, and half a dozen similar outrages. The final enumeration of offending types of conduct also condemned a catch-all category: “other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.” [39] This provision is consistent with the IMT language and with the statutes and jurisprudence of the ad hoc tribunals which have been set up by the Security Council.

 

The precise character of “other inhumane acts” as crimes against humanity was left to interpretation by courts and judges. The door was deliberately left open to possible inclusion of other unforeseeable major inhumanities that might otherwise have escaped judicial scrutiny. Nuremberg correctly condemned aggression as “the supreme international crime” because it included all the other crimes. [40] Even if the appellation “aggression” is not used, the consequences of the illegal use of armed force may be equally reprehensible and should not be allowed to escape criminalization because of nomenclature.

 

It may be useful, therefore, to consider a draft of a model code or template to help define the conditions under which an illegal use of force may come within the purview of Crimes Against Humanity, possibly as a category of crime included within “other inhumane acts.” In essence, what is required is national legislation along the following lines:

 

“Any person responsible for the illegal use of armed force in violation of the United Nations Charter, which unavoidably and inevitably results in the death of large numbers of civilians, is subject to punishment for crimes against humanity.”

 

Limiting the crime to persons responsible implies a leadership position. What is illegal is made plain by the UN Charter itself: there is an inherent right to individual or collective self-defense against an armed attack (Art. 51), and, of course, the Security Council can authorize any measures to maintain peace (Art. 42). If those conditions do not exist, the use of armed force is illegal.

 

It should be noted that those who undertake legally authorized armed force fall into a different category altogether. The legitimate use of armed might is permissible so long as such force is applied in a manner proportional to the harm sought to be redressed and consistent with established rules of armed conflict. It is the illegality of the use of force that gives rise to a crime against humanity because it shocks the human conscience by violating fundamental norms of permissible human behavior.

 

Of course, all of the safeguards of due process and fair trial must apply to both national and international courts. The ICC, for example, can only consider "crimes of concern to the international community as a whole." It must be shown that the crime against humanity was part of a widespread or systematic attack against any civilian population, with knowledge of the attack. The Prosecutor must prove that the accused meant to cause the consequences “or is aware that it will occur in the ordinary course of events.” (Art. 30). The judges and the Prosecutor must take into account the gravity of the crime and whether the prosecution would serve the interests of justice. (Art. 53). The law must be strictly construed and not extended by analogy. It will be up to the judges rather than the protagonists to decide whether the specific deeds are "other inhumane acts" as contemplated by the law.

 

With such a wide array of safeguards, leaders who do not plan to use armed force illegally need not fear their national courts or the ICC. They should welcome this extension of international law as a protective shield for themselves and their citizens. True, national courts are not likely to bring charges against their own tyrannical leaders. But changes in regime are not uncommon and an independent and transparent judiciary may offer justice instead of vengeance.

 

The international community, frustrated by political inability to use authorized armed force, has heralded a new justification under the guise of a “responsibility to protect.” But one should never forget that lawful goals should not be pursued by unlawful means. Humanitarian intervention must not be a cloak for concealed political objectives. The use of armed might can only be legitimate under circumstances permitted by the U.N. Charter. The determination of whether armed force is lawful or criminal cannot be left to the self-serving and biased protagonists or their allies. ICC prosecutors and judges are required by law to take account of all relevant circumstances, including mitigating factors, in order to serve the interests of justice. A fair and transparent judicial decision by judges of mixed gender and varied nationalities, applying humanitarian rules of law remains the safest path to peace.

 

ICC rules of procedure and decisions by the specialized tribunals created by the Security Council to penalize the horrors committed in this century are creating valuable jurisprudence by which the legality of human inhumanity can be judged. If even one murder can qualify as a crime against humanity, surely maiming and killing thousands of innocents should also be recognized as a punishable crime by competent national, regional or international tribunals.

 

No one can expect all crimes to be eliminated simply by making them punishable locally or internationally. As wisely stated by Professor Theodor Meron, an internationally esteemed legal scholar and currently the President of the International Criminal Tribunal for the Former Yugoslavia, “To genuinely humanize humanitarian law, it would be necessary to put an end to all kinds of armed conflict.” [41] Of course, he’s right. Furthermore, a vast matrix of social improvements is also required. The threat of punishment, however, certainly has some deterrent effect. A guarantee that the offender cannot or will not be tried can only encourage more criminality. If the illegal use of armed might can be deterred, even to a slight extent, the effort to save human lives and treasure is surely worthwhile.

 

Concluding Thoughts

 

Internal and external wars that brutalize human beings continue to deface the human landscape. New technologies enhance man’s capacity to kill his fellow humans. The threat to humanity posed by the illegal use of armed force by nations and militant groups increases daily. Having invented the means for destruction of all life, it is difficult to believe that we lack the intelligence and capacity to prevent it from happening. Of course, there are those who still believe, as Thucydides did, that wars are inevitable and people will act only to protect their own interests. Yet, in today’s inter-dependent and potentially life-ending world, is it not in the interest of all nations to do what they can to deter war? The notion that war is an immutable manifestation of some Divine providence simply cannot stand the light of intelligent, informed analysis. War is never Divine; in fact, war is hell. The willingness among some to accept violence as the final arbiter of disputes has given us the world of terror, genocide, mass killings of children, and similar atrocities that raise doubts about whether humans are really human.

 

In his farewell address in 1961, U.S. President Eisenhower warned about the power of a self-serving military-industrial complex that could only be controlled by “an alert and knowledgeable citizenry.” [42] An ideology cannot be killed by a gun. It requires a more acceptable ideology. The logic of armed might breeds crime. Every war makes murderers out of otherwise decent men. Whether they are nations or armed bands, militants must learn to resolve their differences without having to kill their adversaries and their neighbors. The rule of law, nationally and internationally, points the way toward a more humane world. Failure to enforce the law undermines law itself.

 

Skepticism is understandable, but if change is desired, inaction is intolerable. When the Statute for the International Criminal Court emerged from the negotiations at Rome, U.N. Secretary General, Kofi Annan, called it “The hope of future generations.” [43] Legislators, diplomats, students, teachers, religious leaders, non-governmental organizations and every segment of society must be alerted to the vital importance of developing national and international criminal law to help protect the basic human rights of people everywhere. There is nothing more important than the right to life. Putting Nuremberg defendants on trial, as Justice Jackson noted in his brilliant opening statement in 1945, was “one of the most

significant tributes that Power has ever paid to Reason.” [44] Failure to recognize that illegal war-making is a punishable crime against humanity repudiates Nuremberg and would be a

tragic triumph of Power over Reason. “Law, not war” remains my slogan and my hope.

 

August 22, 2012

 

Endnotes

 

1 Editor’s Note: The author is the former Nuremberg Chief Prosecutor of the Einsatzgruppen Case, in which 22 high-ranking Nazis were convicted of slaughtering of over a million innocent men, women, and children. In his opening statement to the Court, he declared, “The case we present is a plea of humanity to law.” (Original video footage is available online at http://www.ushmm.org/wlc/en/media_fi.php?ModuleId=10007080&MediaId=184). He has been an active advocate for the rule of law throughout his career and a comprehensive selection of his writings, essays, and lectures may be accessed online at www.benferencz.org. He was assisted editorially in the preparation of this essay by his son, Donald M. Ferencz, who is also an active proponent of international justice and the rule of law; he may be reached at donferencz@aol.com.

2 Hugo Grotius, On the Laws of War and Peace, Book III. Chap XXV, Section II, available online at http://books.google.com/books?id=j1esrnUC- YQC&pg=PA83&lpg=PA83&dq=lest+by+imitating+wild+beasts+we+forget+to+be+h uman&source=bl&ots=5Qu504gqq_&sig=msOgyF3vNMIcNv8VM3NcFPuLM5s&hl=e

3 Available on-line at http://avalon.law.yale.edu/19th_century/lieber.asp .

4 See The Preamble to The Geneva Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, available online at http://www.icrc.org/ihl.nsf/WebART/195-200001?OpenDocument .

5 Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities Conference of Paris 1919, Carnegie Endowment for International Peace, Division of International Law, Pamphlet No. 32, Clarendon Press, Oxford, 1919, at p. 20, available online at http://archive.org/stream/violationoflawsc00pariuoft#page/n1/mode/2up .

6 Preamble to the United Nations Charter, available online at http://www.un.org/en/documents/charter/.

7 U.N. Charter Articles 2(4), 42-51, available online at http://www.un.org/en/documents/charter/

8 Letter from Justice Robert H. Jackson to the President of the United States, 6 June 1945, reporting on the Nuremberg Trials, available on-line at http://avalon.law.yale.edu/imt/jack08.asp.

9 IMT Judgement, The Law of the Charter, available on-line at http://avalon.law.yale.edu/imt/judlawch.asp. See also Benjamin B. Ferencz, An International Criminal Court, A Step Towards World Peace, p. 479, Oceana Publications, Inc. 1980 available online at http://www.benferencz.org/books/FerenczAnInternationalCriminalCourtVol1.pdf.

10 Constitution of the International Military Tribunal, Article 6(c), available online at http://avalon.law.yale.edu/imt/imtconst.asp .

11 Telford Taylor speech of April, 1947, translated copy on file with the author.

12 See preamble to General Assembly resolution 217 A (III), available online at http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement.

13 Id. at Article 3.

14 G.A. Res. 39/11, 1984, available online at http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/459/88/IMG/NR045988.pdf?OpenElement

15 G.A. Res. 3314 (1974), available online at http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/NR073916.pdf?OpenElement; see also Benjamin B. Ferencz, Defining International Aggression, Volume II, Oceana Publications, Inc. (1975), B. Ferencz, "The United Nations Consensus Definition of Aggression: Sieve or Substance?", Journal of International Law and Economics, National Law Center, George Washington University 10 (Aug.-Dec.,1975) 701-724.

16 For a comprehensive discussion of the Kampala amendments and process, see Stefan Barriga and Leena Grover, A Historic Breakthrough on the Crime of Aggression, American Journal of International Law, July 2011 edition, Vol. 105:477, pp. 517-533, available online at http://www.regierung.li/uploads/media/105_AJIL_July_2011_-_Barriga-Grover_-

_Historic_Breakthrough_on_the_Crime_of_Aggression_01.pdf .

17 For a discussion of the development of the definition of the crime of aggression up to and including the Kampala review conference, see Prof. Claus Kress and Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, available online at http://intl- jicj.oxfordjournals.org/content/8/5/1179.full.pdf+html.

18 Excerpted from a History of the Peloponnesian Wars, relevant portion available online at http://www.rooseveltlausd.org/ourpages/auto/2010/9/29/49133548/Thucydides% 20History%20of%20the%20Peloponnesian%20War.doc .

19 Covenant of the League of Nations, Art. 12, available online at

http://www.unhcr.org/refworld/publisher,LON,,,3dd8b9854,0.html .

20 Statement by President Dwight D. Eisenhower made on April 30, 1958, in recognition of Law Day, available online at http://www.eisenhowermemorial.org/pages.php?pid=504 .

21 Excerpted from an address to The Allied Control Council in Tokyo, April 1946, American Affairs, Vol. III, No. 3, at p. 150, Summer Edition (July, 1946), available online at http://mises.org/journals/aa/AA1946_VIII_3.pdf.

22 See, for example, Mullen’s address to The Washington Center for Internships and Academic Seminars, Washington, DC, 6 January 2010, where he said “I would much rather prevent a war than fight a war,” http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4119.

23 For a short biographical sketch and tribute to Hersch Lauterpacht, see Philippe Sands, My legal hero: Hersch Lauterpacht, The Guardian Online, 10 November 2010, available online at http://www.guardian.co.uk/law/2010/nov/10/my-legal-hero-hersch-lauterpacht.

24 See, for example, McDougal, Myres S., "International Law and the Future" (1979). Faculty Scholarship Series. Paper 2662, available online at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3677&context=fss_pape rs .

25 As noted by Myres McDougal, supra, note 24, at p. 260, “Michael Reisman has appropriately emphasized that lawyers must continuously make judgments about the future. In Reisman, Private Armies in a Global War System: Prologue to a Decision, 14 VA.

J. OO'L L. 1,33 (1973), he writes: Lawyers too often overlook the painfully obvious fact that though the events which precipitate decisions come from the past, decisions themselves are future oriented; the test of their quality is not whether they conform to the past, but rather whether they structure processes and value allocations in the near and distant future in preferred ways.”

26 M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, at p. 44, Kluwer Law International, 2d ed. 1999. For an excellent discussion of the movement toward an international convention for crimes against humanity, see also Leila N. Sadat, Forging a Convention for Crimes Against Humanity, Cambridge University Press, 2011.

27 William Schabas, Unimaginable Atrocities, Oxford University Press, 2012, at p. 221.

28 For a general discussion of the development of international law, see Benjamin Ferencz, New Legal Foundations for Global Survival, Oceana Publications, 1995 and Enforcing International Law, A Way to World Peace, Oceana Publications, 1983 (included among selected works of the author available online at http://heinonlinebackup.com/HOLtest/UNLAV ).

29 Ambassador of Liechtenstein to the United Nations, Christian Wenaweser, as the outgoing President of the Assembly of States Parties, declared, “It is now up to each one of us States Parties to do what is necessary to have this system become operational in 2017.” Remarks by Christian Wenaweser as ASP President (2009- 2011), p. 2, available online at http://www2.icc- cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-PASP-CW-CLRemarks- ENG.pdf. The Principality of Liechtenstein became the first State to deposit its instrument of ratification of the Kampala amendments on 8 May 2012.

30 For his major work reviewing the Rome Statute, see Triffterer: Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (Second Edition), Hart Publishing, 2008.

31 Preamble, The Rome Statute of the International Criminal Court, available online at http://untreaty.un.org/cod/icc/statute/romefra.htm. See also the remarks of Amb. Tiina Intelmann, the current President of the Assembly of States Parties who, upon her election stated, “States Parties should increase their focus in building capacities of national jurisdictions. This is also the only way to deter future crimes.” SECRETARIAT OF THE ASSEMBLY OF STATES PARTIES, Tenth Session of the Assembly, New York, 12 – 21 December 2011, Remarks by Amb. Intelmann, the new President of the Assembly upon election, at p. 1, available online at http://www2.icc- cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-NPASP-Remarks-ENG.pdf.

32 ICC Statute Article 16, available online at

http://untreaty.un.org/cod/icc/statute/romefra.htm.

33 Statement of Navi Pillay to the Assembly of States Parties, 12 December 2011, available online at http://www2.icc-cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10- ST-UNHCHR-ENG.pdf.

34 Id. See also speech of Navi Pillay, UN High Commissioner for Human Right, at Cinema for Peace Dinner, December 2011, New York, NY, available online at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11724&L angID=E

35 International Criminal Court Turns Ten, Opinion piece by Judge Sang-Hyun Song, President of the International Criminal Court, 2 July 2012, available online at http://appablog.wordpress.com/2012/07/02/international-criminal-court-turns-ten- opinion-piece-by-judge-sang-hyun-song-president-of-the-international-criminal-court/.

36 See Progress Report of the Human Rights Council Advisory Committee on the Right of Peoples to Peace, as reproduced 9 December 2011, A/HRC/AC/8/2, available online at http://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/Session8/A-HRC- AC-8-2_en.doc.

37 The Japanese Constitution at Article 9 reads “Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized. “(available online at http://www.kantei.go.jp/foreign/constitution_and_government_of_japan/constitution_e.html). Art. 26(1) of the German Basic Law reads: “Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be made a criminal offense.” (available online at http://www.iuscomp.org/gla/statutes/GG.htm#26); moreover, German Ambassador Hans-Peter Kaul, a respected judge at the ICC, has been an ardent and outspoken champion of criminalizing the crime of aggression and the illegal use of force on both the international and national level (See, for example, Is it Possible to Prevent or Punish Future Aggressive War‐making? Address by Judge Dr. jur. h. c. Hans‐Peter Kaul, Second Vice‐President of the International Criminal Court at the Li Haopei Lecture Series “Implications of the Criminalization of Aggression” , 8 February 2011, Forum for International Criminal and Humanitarian Law, Oslo, Norway, available online at http://www.icc-cpi.int/NR/rdonlyres/6B2BA9C6-C5B5-417A-8EF4- DA3CA0902172/282974/07022011_ImplicationsoftheCriminalizationofAggress.pdf).

38 See, for example, R. v. Jones, where the U.K. Law Lords opined that the crime of aggression exists in customary international law, but must first be domesticated into national law by specific legislative action before it can be prosecuted in domestic courts, [2006] UKHL 16, available online at http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060329/jones-1.htm.

39 The Rome Statute of the International Criminal Court, Article 7, Paragraph 1.k, available online at http://untreaty.un.org/cod/icc/statute/romefra.htm. By way of example, courts have interpreted beatings and acts of violence, including forcing a woman to exercise naked in public to constitute “other inhumane acts”. See Substantive and Procedural Aspects of International Criminal Law, the Experience of International and National Court,

Gabrielle Kirk McDonald and Olivia Swaak-Goldman, Volume I, Kluwer Law International, 2000, at p. 244. Author’s note: If crimes such as these are within “other inhumane acts”, surely killing masses of civilians in an illegal war merits at least equal condemnation as a prosecutable crime.

40 Judgment of the International Military Tribunal at Nuremberg, under the heading The Common Plan or Conspiracy and Aggressive War, available online at http://avalon.law.yale.edu/imt/judnazi.asp.

41 94 American Journal of International Law (pp.240) (April 2000).

42 Eisenhower’s farewell addresses to the nation, 17 January 1961, text available online at http://avalon.law.yale.edu/20th_century/eisenhower001.asp. For a video of the speech, as delivered, see http://www.youtube.com/watch?v=CWiIYW_fBfY.

43 See Statement of U.N. Secretary-General Kofi Annan at the opening of the Preparatory Commission of the International Criminal Court, New York, 16 February 1999, available online at http://www.ngos.net/un/icc.html.

44 Transcripts of the IMT proceedings and judgement may be found on-line at The Avalon Project, with the opening statement of Jackson at http://avalon.law.yale.edu/imt/chap_05.asp. The trial transcript erroneously indicates that Jackson used the phrasing “Power ever has paid to Reason”; what Jackson actually said was “Power has ever paid to Reason,” as may be seen on live video footage of his opening statement available at http://www.youtube.com/watch?v=L50OZSeDXeA.

 

 

 

 

Note to Kaul family: Tribute to Hans-Peter Kaul

 

By Benjamin B. Ferencz

published: July 2014

 

Dear Elisabeth, family and friends:

 

Words can not adequately convey our sadness. The Kaul family was like our own family and we feel so helpless to ease the pain as we join in your grief.

 

I recall when Hans-Peter first arrived at the United Nations many years ago. He brought honor to his country by his determined support for the International Criminal Court and the search for a more peaceful world. I witnessed the presentation of his Doctor's degree in Koln and his appointment as a Judge in the Hague. I cherish his handwritten postcards over the years from various cities around the globe. In his public speeches he often echoed the slogan "Never give up !" - he never did. But no one is immortal. We can find some solace knowing that the inevitable end came relatively quickly.

 

When the history books are written, the name "Hans-Peter Kaul" will appear in bold letters to honor a bold man who dared to strive for the rule of law instead of war.

 

In the hearts of all who loved him, his memory and inspiration shall live on. No one could ask for more.

 

In loving memory,

 

Ben

 

 

 

 

 

 

Obama, Congress & the Syria Vote

 

By Benjamin B. Ferencz

published: September 2013

source: The New York Times

 

 

To the Editor:

Using poison gas has been a war crime since the 1920s. The Nuremberg trials made plain that crimes are committed by individuals. Only the responsible leaders should be held to judicial account.

No one wants the United States to be the policeman of the world. Congress is not a suitable forum to determine facts and responsibility. The United Nations Security Council should refer the issue to the International Criminal Court in The Hague, which is competent to penalize crimes against humanity.

BENJAMIN B. FERENCZ

Delray Beach, Fla., Sept. 1, 2013

The writer was a prosecutor at the Nuremberg war crimes trials after World War II.

 

Deterring Atrocities

By Benjamin B. Ferencz

published:

May 2013

publisher:

The New York Times

To the Editor:

Re “Former Leader of Guatemala Is Guilty of Genocide Against Mayan Group” (news article, May 11):

The landmark conviction by a Guatemalan court of Gen. Efraín Ríos Montt, the former dictator, for genocide should warn that leaders of violent groups and even heads of state are accountable to law. Illegal use of armed force that is not in self-defense and kills large numbers of innocent people should be condemned by national courts everywhere as crimes against humanity.

If states are unwilling or unable to end existing immunities, the International Criminal Court in The Hague should intervene. Such atrocities must be deterred as we move toward a more humane world.

 

BENJAMIN B. FERENCZ

New Rochelle, N.Y., May 11, 2013

The writer was a prosecutor at the Nuremberg war crimes trials after World War II.

A version of this letter appeared in print on May 14, 2013, on page A24 of the New York edition with the headline: Deterring Atrocities.

 

Illegal Armed Force as a Crime against Humanity

By Benjamin B. Ferencz [1]

published:

August 2012

source:

Published Online (Print Publication Pending)

 

ABSTRACT:

At the Nuremberg Trials in 1946, the waging of aggressive war was indelibly branded as “the supreme international crime, The United Nations affirmed the Nuremberg principles and UN committees began creating a new International Criminal Court (ICC) to help maintain future peace. Half a century later, in 1998, in Rome, an enabling statute for an ICC was overwhelmingly acclaimed by 120 nations. After speedy ratification, the Court became operational in 2002. It was authorized to deal only with genocide, crimes against humanity, war crimes and the crime of aggression. However, several major powers were not prepared to accept any international judicial review of their perceived sovereign right to wage war; the same hesitations still prevailed at an amendment conference in Kampala, Uganda in 2010. Although aggression was re-defined by consensus, jurisdiction by the ICC was again postponed for consideration at some later date after 2017. The crime of aggression still hangs in legal limbo. There is a dangerous gap in the law.

 

Deterrence is the primary goal. If no court is competent to try aggressors, the crime is more likely to be encouraged than deterred. This paper seeks to narrow the immunity gap by suggesting a practical legal solution to discourage aggressive wars. Legal quibbling encourages evasions. Illegal use of armed force should be punishable as “other inhumane acts” within the meaning of the ICC prohibition of crimes against humanity. After considering the views of respected military commanders, distinguished academicians and noted human rights advocates, this paper concludes that those leaders who, without lawful justification and with the requisite knowledge and intent, are responsible for foreseeable large scale civilian casualties, should be accused of crimes against humanity and held accountable by fair trial in a competent national or international court of law.

 

1. From Nuremberg to Kampala

The history of humankind has been the history of wars. The father of international law, Hugo Grotius, had called for humane conduct even in warfare “lest by imitating wild beasts too much we forget to be human.” [2] Following the devastating U.S. civil war, Francis Lieber’s code set forth humanitarian Rules for the Governance of Armies in the Field. [3] At The Hague in 1899, delegates adopted the famous Martens Declaration that “belligerents remain under the protection of the law of nations as they result from the usages established among civilized peoples, from the law of humanity and the dictates of the public conscience.” [4] The Commission on Responsibilities for World War I concluded that those who violated “the laws of humanity” were “liable to criminal prosecution”. [5] Rules outlawing the inevitable atrocities of war almost invariably contained exceptions in case of “military necessity” or “national interests” but the “laws of humanity” became an accepted minimum standard of binding customary international law.

 

In 1945, following the horrors of World War II, the International Military Tribunal (IMT) at Nuremberg, together with the United Nations, sounded a wake-up call. New thinking and new institutions would be needed, as stated in the preamble to the U.N. Charter, “to save succeeding generations from the scourge of war.” [6] The Charter clearly prohibited the threat or use of armed force except in self-defense against an armed attack or after authorization by the Security Council. [7] U.S. Supreme Court Justice Robert Jackson, America’s most distinguished jurist, served as Prosecutor for the United States at the IMT. He reported to the President that the American legal position “would be based on the common sense of justice . . . We must not permit it to be complicated by sterile legalisms developed in the age of imperialism to make war respectable.” [8] The IMT declared: “This law is not static but by continual adaptation follows the needs of a changing world.” [9] IMT jurisdiction was based on existing customary international law and treaties which condemned Crimes Against Peace, War Crimes and Crimes Against Humanity, such as “murder, extermination, and “other inhumane acts committed against any civilian population.” [10] General Telford Taylor (later a professor at Columbia University), who directed a dozen subsequent trials at Nuremberg, following the IMT, concluded, in a prescient speech in Paris in April, 1947: “If the trials in Nurnberg . . . can help to expand and refine the legal principles of crimes against humanity, and if the nations of the world can establish a permanent jurisdiction for their punishment based on practical, enforceable and enlightened principles, we will indeed have reached a turning point in the history of international law.” [11]

Expanding and refining legal principles of crimes against humanity was not something that could be accomplished quickly or easily. Universal declarations of human rights and humanitarian proclamations have multiplied over the years but enforcement of the noble goals has been very slow in coming. Perpetrators of crimes in armed conflicts insist that their deeds were all necessary and justifiable; victims claim just the opposite. If such disputes cannot be resolved by peaceful means, and there is no impartial court competent to render a binding judgment, violence is unavoidable. Yet, we may be approaching a turning point as we peruse recent milestones that mark the progress in protecting humanity through law.

The 1948 General Assembly Universal Declaration of Human Rights proclaimed the inalienable right of all members of the human family to “freedom, justice and peace in the world.” [12] “Life, liberty and security of persons” was fundamental. [13] Another Resolution, in 1984, proclaimed that “the peoples of our planet have a sacred right to peace.” [14] In the 1990’s the UN Security Council created temporary courts to punish genocide and "other inhumane acts" committed in Rwanda and Yugoslavia. Yet, some powerful governments that supported the human rights system when it applied to others were unwilling to subject their own conduct to legal scrutiny. Despite such vacillation, the gradual movement toward a more humane world order protected by law was unmistakable. There has been a slow awakening of the human conscience.

 

In 1998, nations meeting in Rome adopted a Statute for an International Criminal Court (ICC) based on the Nuremberg precedents. The treaty establishing the Court received the required 60 ratifications and became operational for over 70 countries in July 2002. Ten years later the number of accepting State Parties had reached 121. With the creation of the ICC, for the first time in human history, a permanent international criminal court came into existence. Only four core crimes “of concern to the international community as a whole” came within the jurisdiction of the Court: genocide, crimes against humanity, war crimes and the crime of aggression.

 

Major powers were still opposed, as they had always been, to having any foreign court adjudicate the legality of their military actions. They balked at allowing the ICC to try aggressors. Small states insisted that without being able to punish aggression - "the mother of all crimes" - the ICC would be a farce. As a compromise, aggression was recognized as a crime, but the ICC was prohibited from dealing with it until certain additional restrictive conditions were met. What was demanded was an acceptable new definition of aggression and assurances that Security Council powers would not be diminished. No one seemed to notice, or wanted to notice, that in 1974, after years of negotiation, a consensus definition of aggression had already been reached and accepted by the UN General Assembly (GA Res. 3314). [15] In any event, the impasse in Rome regarding the crime of aggression was bridged by postponing further consideration pending a Review Conference intended to be convened seven years later.

 

In June 2010, the promised Review Conference was finally held in Kampala, Uganda. The participants seemed to acknowledge at the outset that decisions would be reached only by consensus. "Consensus", of course, meant that everyone had a veto right about everything. Under such restraints it would be exceedingly difficult to reach clear meetings of the mind on any important matters of substance. Nevertheless, a revised consensus definition of aggression was finally reached that was largely based on the 1974 consensus. [16] Its most significant change was that the aggression had to be a "manifest" violation of the UN Charter. [17] What actually was meant by “manifest” remained uncertain. Still, no longer could the convenient but spurious argument be made that aggression could not be prosecuted because it had not been defined.

 

Yet, once again, as had been done in Rome, under pressure from powerful states, giving the ICC active jurisdiction over the crime of aggression was not accepted. As a compromise, it was agreed to postpone the issue for reconsideration at some unspecified future date after 2017. It was an echo of the lame historical excuse: "the time is not yet ripe." Thus, malevolent leaders responsible for what the IMT called “the supreme international crime" still remained beyond the ICC’s reach. If illegal war-makers were to be deterred by the threat of punishment by a court applying “enlightened and enforceable principles”, new ways had to be found to end the existing immunities.

 

2. Protecting Human Rights Through Law

“Enlightenment” begins with the recognition of the need for change. One of the primary objections to accepting new international rules to govern national conduct was the misguided complaint: "Our sovereignty is at stake!" For thousands of years, war was the accepted path to conquests, riches, and glory. Centuries ago, Thucydides articulated the oft-quoted observation: “We know as practical men that the question of justice arises only between those equal in strength, and that the strong do what they can, and the weak submit.” [18] Power was decisive. International law did not exist.

The treaties of Westphalia in 1648 ended 30 years of religious conflict in Europe by creating a regional system of sovereign States in which a monarch reigned supreme only within his realm. Conquest by combat remained legitimate. This condition persisted even up to the formation of the League of Nations, which recognized war-making as lawful – as long as the enemy was given three months’ notice. [19]

 

The Nuremberg principles sought to substitute a rule of enforceable humanitarian law to replace the horrors of armed conflict. Those who stubbornly refused to be bound by new international rules failed to recognize that, in today’s interdependent and increasingly democratic world, sovereignty belongs not to a monarch who is above the law but to the people. The notion of absolute sovereignty is absolutely obsolete.

 

Enlightened military leaders who experienced armed combat learned the hard way that law is always better than war. When Dwight D. Eisenhower, who had been Supreme Commander of the victorious allied forces in World War II, became President of the United States, he made an important speech in which he said: “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.”20 He was echoing General Douglas MacArthur, Commander in the Far East, who, in 1946 praised the new constitution of Japan, in which the Japanese people forever renounced war as a sovereign right. MacArthur, a great war hero, called for universal renunciation of armed might. He pointed to modern science and warned that failure to unshackle ourselves from the past “may blast mankind to perdition.” [21] Recently retired Chairman of the US Joint Chiefs of Staff, Admiral Mike Mullen, has repeatedly declared that he would rather prevent or deter a war than fight one. [22] It should be noted that prohibiting the illegal use of armed force is designed to protect military as well as civilian victims.

 

Many of our most far-sighted international legal scholars, such as revered Professors Hersch Lauterpacht [23], Myres McDougal [24] and his protégé, Michael Reisman [25] recognized that the human rights of the individual can best be protected by an expansive and not restrictive characterization of prohibited behavior and that we should look to the future, and not to the past, in developing norms of acceptable conduct. With respect to crimes against humanity, the highly esteemed Prof. Cherif Bassiouni has observed that “the purpose of the prohibition is to protect against victimization irrespective of any legal characterization or the context in which it occurs.” [26] In his recent book “Unimaginable Atrocities”, Prof. William Schabas recognized that taking the Nuremberg principles forward is “the mission of international justice, as well as international human rights, as a civilizer not only of individuals but also of nations.” [27]

 

Countless non-governmental organizations and official UN agencies have recognized the need for improved protection of humanity through law. In the absence of competent courts and political will by world leaders, the right to peace proclaimed in a wide variety of resolutions remained little more than an articulated but unenforceable aspiration. Declaring the law is one thing; respecting or enforcing it is another. The evolution of international law had not yet reached the point where institutions or means were available for effective peaceful enforcement of the rule of rule of law. [28] The existence of the ICC, with its legally binding statute that required all parties to the treaty to honor their obligations, held forth the implied promise that the future would be better than the past. Hope, however, does not become reality without sustained efforts to persuade the skeptics.

 

As a first step, all States Parties to the Rome Statute who were present in Kampala should now ratify the amendments on aggression, including the negotiated understandings agreed to by consensus in 2010. [29] Failure to provide the necessary 30 ratifications would undermine the utility and integrity of the entire Kampala effort. Those States Parties that accepted and ratified the Rome Statute are already legally bound by that treaty to assume primary responsibility for supporting the ICC goals and mandates. If they fail to ratify their own Kampala consensus, they foul their own nest.

 

Professor Otto Triffterer of the University of Salzburg, one of the earliest champions of an international criminal court, in his latest comprehensive commentary drew attention to the Rome Statute’s preambular mandate stressing “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” [30] The statute’s preamble similarly speaks of punishment “at the national level and by enhancing international cooperation” and emphasizes that the ICC is “complementary to national criminal jurisdictions.” [31] This principle of “complementarity” meant that it was only when domestic courts were unwilling or unable to provide a fair trial that ICC intervention was appropriate. Of course, it made good sense to rely first on local courts where victims could see that justice was being done, evidence was more readily attainable, and costs would be limited. To be sure, the Security Council, as provided in the Charter and the Rome Statute, can always intervene in the interest of world peace. [32]

 

It is particularly notable that States can trump and bypass ICC powers by enacting their own local laws authorizing their own courts to try any of the ICC crimes. Leaders who violate international criminal should have to answer to their own courts and their own citizens. If that is not possible or feasible, those responsible for massive killings should not expect the world to turn a blind eye to their crimes, but should expect that in the final analysis justice will be done by the ICC.

 

3. The Primacy of National Courts

Addressing the Assembly of State Parties on 12 Dec. 2011, the highly respected United Nations High Commissioner for Human Rights, Navi Pillay, called on nations to fulfil their obligations by enacting comprehensive legislation incorporating the Rome Statute into their domestic criminal codes. She called upon the Assembly to work “toward ending impunity for gross human rights violations that amount to the worst crimes.” [33] She was right to note that the primary objective “is not to bring as many perpetrators as possible before the ICC, but to get states to diligently implement their obligation to prosecute international crimes.” [34] In reviewing the work of the ICC on its tenth anniversary, the President of the Court, Judge Sang-Hyun Song, correctly observed that “the most important aspect of the fight against impunity takes place in each country, society and community around the globe. Domestic justice systems must be strong enough to be able to act as the primary deterrent worldwide…” [35]

 

The Human Rights Council Advisory Committee on the right of peoples to peace has recently similarly emphasized that there is a universal right for all peoples to be free from the use of force in international affairs, and that states should do their part in advancing such rights. [36] The net by which perpetrators of international crimes may be apprehended and brought to justice is still under construction. Yet, if enough states carry out their acknowledged primary responsibility to enforce the rule of law, those leaders responsible for massive human rights violations will eventually be left with no place to hide.

What is needed now is new national criminal legislation to put perpetrators of human rights violations on notice that their evil deeds will no longer be tolerated. As far as punishing the crime of aggression is concerned, the lock will unfortunately remain on the closed ICC door until some unpredictable date after 2017 – at the earliest. Still, it may be possible for the essence of the egregious offence to make its way into national criminal jurisdictions of peace-loving nations. It should be noted that national laws to protect the right to life and other peaceful humanitarian goals do not require Security Council approval.

It is, of course, inevitable that on such difficult problems as war and peace there will be differences of opinion. Those powerful states that prefer to rely on their own unrestrained military might remain free to go their own ways. As long as such differences are dealt with by peaceful means they deserve respect. But the use of armed force, particularly against innocent civilians, should not be tolerated. If the Security Council fails in its duty to maintain peace, other lawful means must be found to protect innocent victims and end the outrage that leaders responsible for the most atrocious crime of illegal war-making remain immune. Recent experience has shown that when illegal violence becomes unbearable, tyrants may be toppled by the awakened und unrestrained outrage in the court of public opinion; surely, a peaceful legal resolution of such conflicts would be more humane and in everyone’s interest.

 

Although uniformity is desirable, different countries have differing legal systems, and different terminology may be needed to enable national codes to curtail the illegal use of force. If the term “aggression” seems too politically sensitive, States should consider criminalizing the offense under a more general description. “The illegal use of force” should be recognized and condemned as a “crime against humanity”. Of course it would have to be more explicitly defined and explained, but it might induce militant extremist groups or states to pause or desist from causing great suffering to large numbers of blameless victims.

 

Even powerful countries may come to see the value of restraining their own military might. The post-war constitutions of Japan and Germany, for example, contain provisions recognizing that aggression is a crime and curtailing their own right to use armed force except in self-defense. [37]

Many other states condemn various human rights violations such as genocide, apartheid, torture and other crimes against humanity as punishable in their national courts because they are recognized as customary international law that should bind all countries. Other states do not recognize customary international law unless specifically adopted in their own legislation. [38] The humanization of man’s most inhumane activity must be an ongoing process in the interest of our common humanity.

 

To be sure, many smaller states may need help in adapting their local laws to meet contemporary needs or threats. The ICC should, as a form of “positive complementarity,” assist States to close the impunity gap that now exists for crimes that were universally outlawed at Nuremberg. They should let it be known that if nations fail in their duty to protect their own citizens from slaughter, the responsible leaders may be brought to The Hague to face trial for their inhumane acts. Similarly, NGO’s and other supporting institutions can play a valuable role with respect to informing and galvanizing support from the general public and sympathetic legislators. The goal should be to include in national criminal codes all of the crimes that were punishable in Nuremberg and are listed as crimes by the ICC and other new international courts. Humanitarian law enforcement begins at home.

 

4. Some Practical Suggestions

The Rome Statute that binds the ICC spells out the parameters of all of the crimes within its own current jurisdiction. Enumeration of certain actions as “crimes against humanity” in the ICC statute and similar codes was never intended to be exhaustive or exclusive. Crimes which were separately categorized as “genocide” and “aggression” were being dealt with by special UN committees, but such separate crimes could very well have fit within the broader categorization of “crimes against humanity”. The ICC statute includes, by way of example, acts which qualify as crimes against humanity: murder, enslavement, apartheid, rape, torture, and half a dozen similar outrages. The final enumeration of offending types of conduct also condemned a catch-all category: “other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.” [39] This provision is consistent with the IMT language and with the statutes and jurisprudence of the ad hoc tribunals which have been set up by the Security Council.

The precise character of “other inhumane acts” as crimes against humanity was left to interpretation by courts and judges. The door was deliberately left open to possible inclusion of other unforeseeable major inhumanities that might otherwise have escaped judicial scrutiny. Nuremberg correctly condemned aggression as “the supreme international crime” because it included all the other crimes. [40] Even if the appellation “aggression” is not used, the consequences of the illegal use of armed force may be equally reprehensible and should not be allowed to escape criminalization because of nomenclature.

 

It may be useful, therefore, to consider a draft of a model code or template to help define the conditions under which an illegal use of force may come within the purview of Crimes Against Humanity, possibly as a category of crime included within “other inhumane acts.” In essence, what is required is national legislation along the following lines: "Any person responsible for the illegal use of armed force in violation of the United Nations Charter, which unavoidably and inevitably results in the death of large numbers of civilians, is subject to punishment for crimes against humanity.”

Limiting the crime to persons responsible implies a leadership position. What is illegal is made plain by the UN Charter itself: there is an inherent right to individual or collective self-defense against an armed attack (Art.51), and, of course, the Security Council can authorize any measures to maintain peace (Art. 42). If those conditions do not exist, the use of armed force is illegal.

 

It should be noted that those who undertake legally authorized armed force fall into a different category altogether. The legitimate use of armed might is permissible so long as such force is applied in a manner proportional to the harm sought to be redressed and consistent with established rules of armed conflict. It is the illegality of the use of force that gives rise to a crime against humanity because it shocks the human conscience by violating fundamental norms of permissible human behavior.

 

Of course, all of the safeguards of due process and fair trial must apply to both national and international courts. The ICC, for example, can only consider "crimes of concern to the international community as a whole." It must be shown that the crime against humanity was part of a widespread or systematic attack against any civilian population, with knowledge of the attack. The Prosecutor must prove that the accused meant to cause the consequences "or is aware that it will occur in the ordinary course of events." (Art.30). The judges and the Prosecutor must take into account the gravity of the crime and whether the prosecution would serve the interests of justice. (Art.53). The law must be strictly construed and not extended by analogy. It will be up to the judges rather than the protagonists to decide whether the specific deeds are "other inhumane acts" as contemplated by the law.

 

With such a wide array of safeguards, leaders who do not plan to use armed force illegally need not fear their national courts or the ICC. They should welcome this extension of international law as a protective shield for themselves and their citizens. True, national courts are not likely to bring charges against their own tyrannical leaders. But changes in regime are not uncommon and an independent and transparent judiciary may offer justice instead of vengeance.

The international community, frustrated by political inability to use authorized armed force, has heralded a new justification under the guise of a “responsibility to protect.” But one should never forget that lawful goals should not be pursued by unlawful means. Humanitarian intervention must not be a cloak for concealed political objectives. The use of armed might can only be legitimate under circumstances permitted by the U.N. Charter. The determination of whether armed force is lawful or criminal cannot be left to the self-serving and biased protagonists or their allies. ICC prosecutors and judges are required by law to take account of all relevant circumstances, including mitigating factors, in order to serve the interests of justice. A fair and transparent judicial decision by judges of mixed gender and varied nationalities, applying humanitarian rules of law remains the safest path to peace.

 

ICC rules of procedure and decisions by the specialized tribunals created by the Security Council to penalize the horrors committed in this century are creating valuable jurisprudence by which the legality of human inhumanity can be judged. If even one murder can qualify as a crime against humanity, surely maiming and killing thousands of innocents should also be recognized as a punishable crime by competent national, regional or international tribunals.

No one can expect all crimes to be eliminated simply by making them punishable locally or internationally. As wisely stated by Professor Theodor Meron, an internationally esteemed legal scholar and currently the President of the International Criminal Tribunal for the Former Yugoslavia, “To genuinely humanize humanitarian law, it would be necessary to put an end to all kinds of armed conflict.” [41] Of course, he’s right. Furthermore, a vast matrix of social improvements is also required. The threat of punishment, however, certainly has some deterrent effect. A guarantee that the offender cannot or will not be tried can only encourage more criminality. If the illegal use of armed might can be deterred, even to a slight extent, the effort to save human lives and treasure is surely worthwhile.

 

5. Concluding Thoughts

Internal and external wars that brutalize human beings continue to deface the human landscape. New technologies enhance man’s capacity to kill his fellow humans. The threat to humanity posed by the illegal use of armed force by nations and militant groups increases daily. Having invented the means for destruction of all life, it is difficult to believe that we lack the intelligence and capacity to prevent it from happening. Of course, there are those who still believe, as Thucydides did, that wars are inevitable and people will act only to protect their own interests. Yet, in today’s inter-dependent and potentially life-ending world, is it not in the interest of all nations to do what they can to deter war? The notion that war is an immutable manifestation of some Divine providence simply cannot stand the light of intelligent, informed analysis. War is never Divine; in fact, war is hell. The willingness among some to accept violence as the final arbiter of disputes has given us the world of terror, genocide, mass killings of children, and similar atrocities that raise doubts about whether humans are really human.

 

In his farewell address in 1961, U.S. President Eisenhower warned about the power of a self-serving military-industrial complex that could only be controlled by “an alert and knowledgeable citizenry.” [42] An ideology cannot be killed by a gun. It requires a more acceptable ideology. The logic of armed might breeds crime. Every war makes murderers out of otherwise decent men. Whether they are nations or armed bands, militants must learn to resolve their differences without having to kill their adversaries and their neighbors. The rule of law, nationally and internationally, points the way toward a more humane world. Failure to enforce the law undermines law itself.

 

Skepticism is understandable but, if change is desired, inaction is intolerable. When the Statute for the International Criminal Court emerged from the negotiations at Rome, U.N. Secretary General, Kofi Annan, called it “The hope of future generations.” [43] Legislators, diplomats, students, teachers, religious leaders, non-governmental organizations and every segment of society must be alerted to the vital importance of developing national and international criminal law to help protect the basic human rights of people everywhere. There is nothing more important than the right to life. Putting Nuremberg defendants on trial, as Justice Jackson noted in his brilliant opening statement in 1945, was “one of the most significant tributes that Power has ever paid to Reason.”44 Failure to recognize that illegal war-making is a punishable crime against humanity repudiates Nuremberg and would be a tragic triumph of Power over Reason. “Law, not war” remains my slogan and my hope.

 

[1] Editor’s Note: The author is the former Nuremberg Chief Prosecutor of the Einsatzgruppen Case, in which 22 high-ranking Nazis were convicted of slaughtering of over a million innocent men, women, and children. In his opening statement to the Court, he declared, “The case we present is a plea of humanity to law.” (Original video footage is available online at http://www.ushmm.org/wlc/en/media_fi.php?ModuleId=10007080&MediaId=184). He has been an active advocate for the rule of law throughout his career and a comprehensive selection of his writings, essays, and lectures may be accessed online at www.benferencz.org. He was assisted editorially in the preparation of this essay by his son, Donald M. Ferencz, who is also an active proponent of international justice and the rule of law; he may be reached at donferencz@aol.com.

[2] Hugo Grotius, On the Laws of War and Peace, Book III. Chap XXV, Section II, available online at http://books.google.com/books?id=j1esrnUC-YQC&pg=PA83&lpg=PA83&dq=lest+by+imitating+wild+beasts+we+forget+to+be+human&source=bl&ots=5Qu504gqq_&sig=msOgyF3vNMIcNv8VM3NcFPuLM5s&hl=en&sa=X&ei=6RzBT9OcGomk9ASuwby0Cw&sqi=2&ved=0CEYQ6AEwAA#v=onepage&q=lest%20by%20imitating%20wild%20beasts%20we%20forget%20to%20be%20human&f=false .

[3] Available on-line at http://avalon.law.yale.edu/19th_century/lieber.asp .

[4] See The Preamble to The Geneva Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, available online at http://www.icrc.org/ihl.nsf/WebART/195-200001?OpenDocument .

[5] Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities Conference of Paris 1919, Carnegie Endowment for International Peace, Division of International Law, Pamphlet No. 32, Clarendon Press, Oxford, 1919, at p. 20, available online at http://archive.org/stream/violationoflawsc00pariuoft#page/n1/mode/2up

[6] Preamble to the United Nations Charter, available online at http://www.un.org/en/documents/charter/.

[7] U.N. Charter Articles 2(4), 42-51, available online at http://www.un.org/en/documents/charter/ .

[8] Letter from Justice Robert H. Jackson to the President of the United States, 6 June 1945, reporting on the Nuremberg Trials, available on-line at http://avalon.law.yale.edu/imt/jack08.asp.

[9] IMT Judgement, The Law of the Charter, available on-line at http://avalon.law.yale.edu/imt/judlawch.asp. See also Benjamin B. Ferencz, An International Criminal Court, A Step Towards World Peace, p. 479, Oceana Publications, Inc. 1980 available online at http://www.benferencz.org/books/FerenczAnInternationalCriminalCourtVol1.pdf.

[10] Constitution of the International Military Tribunal, Article 6(c), available online at http://avalon.law.yale.edu/imt/imtconst.asp .

[11] Telford Taylor speech of April, 1947, translated copy on file with the author.

[12] See preamble to General Assembly resolution 217 A (III), available online at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement.

[13] Id. at Article 3.

[14] G.A. Res. 39/11, 1984, available online at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/459/88/IMG/NR045988.pdf?OpenElement

[15] G.A. Res. 3314 (1974), available online at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/NR073916.pdf?OpenElement; see also Benjamin B. Ferencz, Defining International Aggression, Volume II, Oceana Publications, Inc. (1975), B. Ferencz, "The United Nations Consensus Definition of Aggression: Sieve or Substance?", Journal of International Law and Economics, National Law Center, George Washington University 10 (Aug.-Dec.,1975) 701-724.

[16] For a comprehensive discussion of the Kampala amendments and process, see Stefan Barriga and Leena Grover, A Historic Breakthrough on the Crime of Aggression, American Journal of International Law, July 2011 edition, Vol. 105:477, pp. 517-533, available online at http://www.regierung.li/uploads/media/105_AJIL_July_2011_-_Barriga-Grover_-_Historic_Breakthrough_on_the_Crime_of_Aggression_01.pdf .

[17] For a discussion of the development of the definition of the crime of aggression up to and including the Kampala review conference, see Prof. Claus Kress and Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, available online at http://intl-jicj.oxfordjournals.org/content/8/5/1179.full.pdf+html.

[18] Excerpted from a History of the Peloponnesian Wars, relevant portion available online at http://www.rooseveltlausd.org/ourpages/auto/2010/9/29/49133548/Thucydides%20History%20of%20the%20Peloponnesian%20War.doc.

[19] Covenant of the League of Nations, Art. 12, available online at http://www.unhcr.org/refworld/publisher,LON,,,3dd8b9854,0.html .

[20] Statement by President Dwight D. Eisenhower made on April 30, 1958, in recognition of Law Day, available online at http://www.eisenhowermemorial.org/pages.php?pid=504 .

[21] Excerpted from an address to The Allied Control Council in Tokyo, April 1946, American Affairs, Vol. III, No. 3, at p. 150, Summer Edition (July, 1946), available online at http://mises.org/journals/aa/AA1946_VIII_3.pdf.

[22] See, for example, Mullen’s address to The Washington Center for Internships and Academic Seminars, Washington, DC, 6 January 2010, where he said “I would much rather prevent a war than fight a war.” Available online at http://www.c-span.org/Events/Washington-Center-Seminar-with-JCS-Chair-Adm-Michael-Mullen/16680/ .

[23] For a short biographical sketch and tribute to Hersch Lauterpacht, see Philippe Sands, My legal hero: Hersch Lauterpacht, The Guardian Online, 10 November 2010, available online at http://www.guardian.co.uk/law/2010/nov/10/my-legal-hero-hersch-lauterpacht.

[24] See, for example, McDougal, Myres S., "International Law and the Future" (1979). Faculty Scholarship Series. Paper 2662, available online at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3677&context=fss_papers.

[25] As noted by Myres McDougal, supra, note 24, at p. 260, “Michael Reisman has appropriately emphasized that lawyers must continuously make judgments about the future. In Reisman, Private Armies in a Global War System: Prologue to a Decision, 14 VA. J. OO'L L. 1,33 (1973), he writes: Lawyers too often overlook the painfully obvious fact that though the events which precipitate decisions come from the past, decisions themselves are future oriented; the test of their quality is not whether they conform to the past, but rather whether they structure processes and value allocations in the near and distant future in preferred ways.”

[26] M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, at p. 44, Kluwer Law International, 2d ed. 1999. For an excellent discussion of the movement toward an international convention for crimes against humanity, see also Leila N. Sadat, Forging a Convention for Crimes Against Humanity, Cambridge University Press, 2011.

[27] William Schabas, Unimaginable Atrocities, Oxford University Press, 2012, at p. 221.

[28] For a general discussion of the development of international law, see Benjamin Ferencz, New Legal Foundations for Global Survival, Oceana Publications, 1995 and Enforcing International Law, A Way to World Peace, Oceana Publications, 1983 (included among selected works of the author available online at http://heinonlinebackup.com/HOLtest/UNLAV ).

[29] Ambassador of Liechtenstein to the United Nations, Christian Wenaweser, as the outgoing President of the Assembly of States Parties, declared, “It is now up to each one of us States Parties to do what is necessary to have this system become operational in 2017.” Remarks by Christian Wenaweser as ASP President (2009-2011), p. 2, available online at http://www2.icc-cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-PASP-CW-CLRemarks-ENG.pdf. The Principality of Liechtenstein became the first State to deposit its instrument of ratification of the Kampala amendments on 8 May 2012.

[30] For his major work reviewing the Rome Statute, see Triffterer: Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (Second Edition), Hart Publishing, 2008.

[31] Preamble, The Rome Statute of the International Criminal Court, available online at http://untreaty.un.org/cod/icc/statute/romefra.htm. See also the remarks of Amb. Tiina Intelmann, the current President of the Assembly of States Parties who, upon her election stated, “States Parties should increase their focus in building capacities of national jurisdictions. This is also the only way to deter future crimes.” SECRETARIAT OF THE ASSEMBLY OF STATES PARTIES, Tenth Session of the Assembly, New York, 12 – 21 December 2011, Remarks by Amb. Intelmann, the new President of the Assembly upon election, at p. 1, available online at http://www2.icc-cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-NPASP-Remarks-ENG.pdf.

[32] ICC Statute Article 16, available online at http://untreaty.un.org/cod/icc/statute/romefra.htm.

[33] Statement of Navi Pillay to the Assembly of States Parties, 12 December 2011, available online at http://www2.icc-cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-UNHCHR-ENG.pdf.

[34] Id. See also speech of Navi Pillay, UN High Commissioner for Human Right, at Cinema for Peace Dinner, December 2011, New York, NY, available online at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11724&LangID=E

[35] International Criminal Court Turns Ten, Opinion piece by Judge Sang-Hyun Song, President of the International Criminal Court, 2 July 2012, available online at http://appablog.wordpress.com/2012/07/02/international-criminal-court-turns-ten-opinion-piece-by-judge-sang-hyun-song-president-of-the-international-criminal-court/.

[36] See Progress Report of the Human Rights Council Advisory Committee on the Right of Peoples to Peace, as reproduced 9 December 2011, A/HRC/AC/8/2, available online at http://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/Session8/A-HRC-AC-8-2_en.doc.

[37] The Japanese Constitution at Article 9 reads “Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized. “(available online at http://www.kantei.go.jp/foreign/constitution_and_government_of_japan/constitution_e.html). Art. 26(1) of the German Basic Law reads: “Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be made a criminal offense.” (available online at http://www.iuscomp.org/gla/statutes/GG.htm#26); moreover, German Ambassador Hans-Peter Kaul, a respected judge at the ICC, has been an ardent and outspoken champion of criminalizing the crime of aggression and the illegal use of force on both the international and national level (See, for example, Is it Possible to Prevent or Punish Future Aggressive War‐making? Address by Judge Dr. jur. h. c. Hans‐Peter Kaul, Second Vice‐President of the International Criminal Court at the Li Haopei Lecture Series “Implications of the Criminalization of Aggression” , 8 February 2011, Forum for International Criminal and Humanitarian Law, Oslo, Norway, available online at http://www.icc-cpi.int/NR/rdonlyres/6B2BA9C6-C5B5-417A-8EF4-DA3CA0902172/282974/07022011_ImplicationsoftheCriminalizationofAggress.pdf).

[38] See, for example, R. v. Jones, where the U.K. Law Lords opined that the crime of aggression exists in customary international law, but must first be domesticated into national law by specific legislative action before it can be prosecuted in domestic courts, [2006] UKHL 16, available online at http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060329/jones-1.htm.

[39] The Rome Statute of the International Criminal Court, Article 7, Paragraph 1.k, available online at http://untreaty.un.org/cod/icc/statute/romefra.htm. By way of example, courts have interpreted beatings and acts of violence, including forcing a woman to exercise naked in public to constitute “other inhumane acts”. See Substantive and Procedural Aspects of International Criminal Law, the Experience of International and National Court, Gabrielle Kirk McDonald and Olivia Swaak-Goldman, Volume I, Kluwer Law International, 2000, at p. 244. Author’s note: If crimes such as these are within “other inhumane acts”, surely killing masses of civilians in an illegal war merits at least equal condemnation as a prosecutable crime.

[40] Judgment of the International Military Tribunal at Nuremberg, under the heading The Common Plan or Conspiracy and Aggressive War, available online at http://avalon.law.yale.edu/imt/judnazi.asp.

[41] 94 American Journal of International Law (pp.240) (April 2000).

[42] Eisenhower’s farewell addresses to the nation, 17 January 1961, text available online at http://avalon.law.yale.edu/20th_century/eisenhower001.asp. For a video of the speech, as delivered, see http://www.youtube.com/watch?v=CWiIYW_fBfY.

[43] See Statement of U.N. Secretary-General Kofi Annan at the opening of the Preparatory Commission of the International Criminal Court, New York, 16 February 1999, available online at http://www.ngos.net/un/icc.html.

[44] Transcripts of the IMT proceedings and judgement may be found on-line at The Avalon Project, with the opening statement of Jackson at http://avalon.law.yale.edu/imt/chap_05.asp. The trial transcript erroneously indicates that Jackson used the phrasing “Power ever has paid to Reason”; what Jackson actually said was “Power has ever paid to Reason,” as may be seen on live video footage of his opening statement available at http://www.youtube.com/watch?v=L50OZSeDXeA.

August 22nd, 2012

 

 

 

 

 

 

Crimes Against Humanity

 

By Benjamin B. Ferencz

published: March 2012

source:The New York Times (Letters)

Re “Congolese Rebel Convicted of Using Child Soldiers” (news article, March 15):

 

The conviction by the International Criminal Court of the warlord Thomas Lubanga for recruiting and training children for combat in Congo marks a milestone in the evolution of international criminal law.

 

Fugitive renegades like Joseph Kony, accused of shocking atrocities in several African countries, must recognize that they cannot evade justice indefinitely. Those responsible for the illegal use of armed force that kills masses of civilians must be held legally accountable for crimes against humanity.

 

BENJAMIN B. FERENCZ

Delray Beach, Fla., March 15, 2012

The writer was a prosecutor at the Nuremberg war crimes trials.

 

 

 

 

 

 

Law Always Beats War

 

By Benjamin B. Ferencz

published:January 2012

source: The Wall Street Journal

 

John Yoo's diatribe condemning the International Criminal Court cannot go unchallenged ("Prosecuting the Peace—Can international tribunals curb future atrocities or is the intervention of a great power needed?," Books, Jan. 7). His absurd argument that the threat of prosecution may "exacerbate humanitarian atrocities" denigrates the deterrent effect of law enforcement. He dismisses U.S. Ambassador David Scheffer's "All The Missing Souls" as "a soporific memoir" but extols the virtues of American sovereignty and exceptionalism as justifying the unilateral use of our military might. He also distorts William Shawcross's thoughtful conclusion in "Justice and the Enemy" that "legal proceedings against violent extremists are a crucial defense of our civilization." His father Sir Hartley Shawcross, the chief British prosecutor at the Nuremberg trials, remained a strong supporter of having an international criminal court all his life.

 

Mr. Yoo also ignores President Dwight D. Eisenhower's 1958 warning: "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." Mr. Yoo fails to recognize that law is always better than war.

Benjamin B. Ferencz

Delray Beach, Fla.

 

Mr. Ferencz was a combat soldier in World War II and a prosecutor at the Nuremberg war crimes trials.

 

 

 

 

 

A New Approach to Deterring Illegal Wars

 

By Benjamin B. Ferencz

published: August 2011

 

What Really Happened at Kampala

It should be recalled that after millions of innocent people had been killed in World War Two, everyone prayed for a more peaceful future. In the name of "WE THE PEOPLES", the primary goal of the United Nations Charter signed on 25 June1945 was "to save succeeding generations from the scourge of war." Pursuant to an Agreement in London on August 8, the four occupying Powers established an International Military Tribunal (IMT) in Nuremberg to try leading perpetrators of Nazi crimes. The court was composed of prominent jurists from the US, USSR, UK and France. In his moving opening statement on 21 November, Chief Prosecutor Robert M. Jackson, on leave from the US Supreme Court, warned that if law was to serve a useful purpose, "it must condemn aggression by any other nations including those who sit here now in judgment." On October 1,1946 , the IMT handed down its detailed decision. "To initiate a war of aggression", said the learned judges, was "the supreme international crime" . It was hoped that malevolent leaders might be deterred from launching future illegal wars. Yet, it soon became apparent that many powerful nations, including the four that sat in judgment, were not prepared to give up their perceived sovereign right to go to war whenever their leaders felt it was in their national interest. The promise of Nuremberg remains unfulfilled.

 

After decades of wrangling by UN committees, it was finally agreed, at a conference in Rome in 1998, that an International Criminal Court (ICC) would be created to try key persons for genocide, war crimes, crimes against humanity and aggression. However, the court could not exercise its jurisdiction over "the supreme international crime" until amendments were adopted defining that offense, consistent with the UN Charter. The five permanent Security Council members were not prepared to yield any of their responsibilities or privileges. Arguing that the crime had not been defined seemed a plausible justification for inaction. Committees resumed debates. A dozen years later, how to deter aggression still remained unresolved. As mandated in Rome, the issue came to a head at a Review Conference in Kampala, Uganda in June 2010. Since the definition had been debated for more than half-a-century, the Delegates in Kampala were able to agree on a new formulation built on an earlierGeneral Assembly consensus in 1974. No longer could the canard again be raised that aggression had not been defined.

 

Lawyers are very skilful in finding ambiguities in texts they do not wish to accept. The Rome Treaty seemed clear in Article 121 that amendments would only bind those states that agreed to be bound. Requests for further reassurances or clarification would always seem reasonable. Not content to rely on ICC judges to determine the meaning of the terminology, Kampala delegates submitted various alternatives. Unable to reach accord, they finally did what they had done in Rome in 1998; they postponed the issue again. By way of compromise, a few more hurdles were added and it was agreed that the question whether the ICC could exercise its jurisdiction over aggression should again be postponed for reconsideration at some unspecified future date; no sooner than 2017. Many arguments against activating ICC jurisdiction over the crime of aggression seemed designed to disguise the sad truth that some powerful states still preferred war to law.

 

A New Approach

Criminologists will generally agree that one of the most effective ways to deter crime is to let perpetrators know in advance that they will be held to account in a court of law. To assure them that they will not be brought to trial is more likely to encourage than to deter the conduct you are trying to prevent. As we have seen, the world community still remains divided about requiring aggressors to face the bar of international justice. Persons in high authority who knowingly and intentionally launch the horrors of illegal war should not be allowed to remain immune from prosecution. After more than 60 years of unsuccessful effort, a new approach is necessary.

 

1. ICC should punish illegal armed force as crimes against humanity

As long as the crime of aggression cannot be tried by the ICC other ways must be sought to end the impunity. The illegal use of force almost invariably results in actions that should qualify as crimes against humanity. Whether armed force is legal or illegal is basically governed by the UN Charter that binds all nations. Article 2(4) calls upon all Members to refrain from the threat or use of force inconsistent with the purposes of the UN. Article 51 recognizes the inherent right of self-defense against an armed attack .Chapter VII allows the Security Council to authorize armed force when the Council considers it necessary to maintain or restore peace. In short, if the use of armed force was not in self-defense or authorised by the Security Council it is illegal. Genuine humanitarian interventions may mitigate the punishment and all circumstances and moral justifications must be taken into account by prosecutors and judges. But no person or nation should be allowed to take the law into their own hands.

 

What the crime is called should not be decisive. The international tribunals at Nuremberg, for example, referred to aggression as "CRIMES AGAINST PEACE". The term "war" appears only once in the UN Charter, which speaks about "armed force". "Genocide" is the first crime listed in the ICC Statute, although it could easily have been subsumed and included under "crimes against humanity". If aggression had not been relegated to special committees, armed force prohibitions could also easily have found a place on the list of crimes against humanity. The fundamental right to life is heralded in all human rights conventions. What matters more than the title of the crime is the substance. Keep in mind that the basic goal is to deter the unlawful use of armed force that kills or maims countless innocent men, women and children. Deterring war should not depend on nomenclature.

 

To be sure, the ICC cannot convict anyone of crimes against humanity without proof of "a widespread and systematic attack directed against any civilian population, with knowledge of the attack". Modern warfare makes mass killing of innocents unavoidable. One cannot persuasively argue that where large scale civilian casualties were foreseen and inevitable there has been no crime because innocent victims were not the primary target. Surely, illegal force deserves as much condemnation as "murder", "severe deprivation of fundamental rights" or similar atrocities listed in the ICC Statute. The illegal use of massive force should be punishable under the existing category of "Other inhumane acts of similar character intentionally causing great suffering or serious injury to body or to mental or physical health." The Prosecutor would have to prove beyond doubt that the accused held a position of high authority, played a key role and intended the foreseeable consequences. In contrast to charges of aggression, the Security Council has no prior role to play concerning crimes against humanity .

 

2. National courts should criminalize the illegal use of armed force.

The new Kampala consensus definition of aggression, after many decades of consideration, spells out the parameters of what constitutes an illegal use of force. New domestic legislation can simply specify that the crime of aggression, as defined by consensus at the ICC Review Conference in Kampala in 2010, shall be punishable when committed on their territory or by their nationals. Nothing more is needed than such incorporation by reference. At the same time, charges can also brought under the heading of crimes against humanity.

 

New domestic criminal statutes can also formulate their own texts, such as:

“Persons in position of high authority responsible for the illegal use of armed force in violation of the UN Charter, knowing that such action will unavoidably and inevitably kill large numbers of innocent civilians, shall be subject to prosecution for crimes against humanity.”

Despots will be put on notice. Even a limited deterrent effect would surely be worthwhile.

3. Bilateral and Regional coalitions should join in criminalizing illegal war.

 

The Supreme Allied Comamander in World War Two , Dwight D. Eisenhower, when he was President of the United states, warned: "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." Many nations, led by Japan and Germany, that had suffered the agonies of war, began to move in that direction in their post -war constitutions. Now more needs to be done to move from promise to reality. The French Schuman Plan for economic cooperation with Germany, its war-time enemy, led to the formation of the European Union that has become a major bulwark for world peace. Uniformity of criminal legislation is, of course, preferable and is a growing reality in many other areas of international cooperation. Short-sighted and misguided reasons of policy, politics or legal philosophy should not obscure the fact that unilateralism no longer has a place in the modern world. Diplomats should not hide behind the slogan "The trime is not yet ripe". The time is ripe right now!

 

What do we do now?

 

1. Ratify

According to the Kampala agreement, before the ICC can exercise jurisdiction over the crime of aggression, 30 States Parties must ratify or accept the amendments. Since the compromises were reached by consensus after much travail, it is not unreasonable to anticipate that the hurdle will be overcome. Failure to do so would mark Kampala as an exercise in futility or duplicity. Obtaining the necessary 30 acceptances must therefore be the first priority of those who really care about deterring war.

 

2. New Help and New Means

Experience suggests that relying in old methods is not likely to produce quick results. Man's capacity to destroy life on earth increases incrementally and the race between civilization and disaster will need some faster runners. Fortunately, new means and methods are on the horizon and must be mobilized to protect humanity. Global communication networks can reach out to people everywhere and help them to understand that a more peaceful and humane world is indispensable. For the safety of the brave young people who serve in the military, a "peace ethic" must replace the prevailing glorification of military might. It is not merely a matter of life and death but of economic survival that affects everyone.

The advent of new and miraculous means of instant communication offers a worldwide educational network never previously conceived. Perhaps the dissemination of truth will prove a more useful weapon than the costly and destructive instruments of war. International laws, courts, and a system of effective enforcement are still in their earliest stages if evolution. A matrix of countless social and organizational changes is needed. Every effort must be made to mobilize the younger generations to support the rule of law as their best safeguard. The international criminal court was a great historical achievement designed to encourage peaceful rather than violent resolution of conflicts. Those who hold the destinies of "WE THE PEOPLES" in their power must also be made to recognize, through the deterrent power of criminal prosecution, that law is always better than war.

 

 

 

 

 

Letter to NY Times re: Bin Laden's Killing

 

By Benjamin B. Ferencz

published: May 2011

source: New York Times

 

To the Editor:

 

Your superb report “Behind the Hunt for Bin Laden” leaves key questions unanswered. Jubilation over the death of the most hunted mass murderer is understandable, but was it really justifiable self-defense, or was it premeditated illegal assassination?

The Nuremberg trials earned worldwide respect by giving Hitler’s worst henchmen a fair trial so that truth would be revealed and justice under law would prevail. Secret nonjudicial decisions based on political or military considerations undermine democracy. The public is entitled to know the complete truth.

 

BENJAMIN B. FERENCZ

New Rochelle, N.Y., May 3, 2011

The writer was a prosecutor at the Nuremberg trials.

 

 

 

 

 

What of Military Aggression?

 

By Benjamin B. Ferencz

published: October 2010

source: Global Brief

 

We have come a long way from Nuremberg, and have miles to go before we sleep

 

Hope is the engine that drives human endeavour. After some 20 million people were killed in WW1, League of Nations diplomats recognized the need to eliminate war as an instrument of national policy. They advised that future wars of aggression should be punished as an international crime. The common response from powerful states was: “The time is not yet ripe.” An additional 50 million victims perished in WW2. In response, an International Military Tribunal was set up in Nuremberg to try German leaders responsible for crimes against peace (aggression), crimes against humanity, and war crimes. The implementation of slowly emerging principles of international criminal law by distinguished jurists from four victorious powers (the US, the UK, the Soviet Union and France) was an expression of hope that future illegal war-making might be deterred.

 

The main architect for the trials was Robert M. Jackson, on leave from the US Supreme Court. “It is high time,” he reported to President Harry Truman in 1945, “that we act on the juridical principle that aggressive war-making is illegal and criminal. [...] We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” In December 1946, the UN affirmed the Nuremberg principles and judgement. Committees were directed to draft a Code of Crimes Against the Peace and Security of Mankind, including the crime of aggression, and to plan for a permanent international criminal jurisdiction to try offenders. The rule of law, coupled with the humanitarian aspirations articulated in the UN Charter, would, hopefully, lead to a more peaceful and humane world order. That was the hope.

 

The UN, of course, could not exist in a political vacuum. Promises of universal disarmament and the creation of an international military force were unfulfilled. The five permanent Security Council members, which had borne major burdens of the war, were entrusted with maintaining the peace. Each was granted the right to veto any enforcement measures. It soon appeared that sharp ideological differences divided the Council, whose members seemed primarily concerned with protecting their own powers and interests. Realpolitik was alive and well, and thriving. The veto-wielding powers in the Council proved unable “to save succeeding generations from the scourge of war.” Economic and cultural disparities among an expanding array of new nations exacerbated difficulties in what seemed an ungovernable world.

 

The 1946 mandate to define the crime of aggression was finally approved by the UN General Assembly, on December 14th, 1974, as Resolution 3314. To achieve consensus, last-minute clauses were inserted to the effect that the definition was only a non-binding guide to the Security Council, which was given wide latitude to determine whether an act of aggression had indeed occurred. It was agreed that “a war of aggression is a crime against international peace,” but exculpatory clauses were added, and the whole package was declared indivisible. In effect, the consensus definition was carefully crafted to preserve the status quo. Nonetheless, it reflected the undying determination and hope of many nations that illegal warfare could – at least to some extent – be curbed by law. It was a first baby step forward.

 

A code of international crimes was completed in 1996 by the 34-member International Law Commission that favoured the original Nuremberg definition. One hundred eighty-five nations, with varied legal and social systems, formed UN committees to fashion a permanent international criminal tribunal. Hundreds of open questions were left to be resolved during a final four-week conference of plenipotentiaries in Rome in the summer of 1998. In an unforgettable climax, after the official time had expired, Chairman Philippe Kirsch announced that the Rome Statute for an International Criminal Court (ICC) had been approved by acclamation of 120 in favour, seven against and 21 abstentions. The then UN Secretary-General, Kofi Annan, called it “a gift of hope to future generations.”

 

Until the final session, it was uncertain whether the ICC would be authorized to exercise its jurisdiction over the very contentious crime of aggression. Powerful states were unwilling to give up their power, and states that lacked power could do nothing about it. A last-minute compromise was accepted, where aggression would be listed as one of the four core crimes, although the ICC could not exercise its jurisdiction over that crime until and unless certain specified conditions could be met. There would have to be an acceptable definition, as well as clear confirmation that UN Charter provisions (meaning Security Council rights) would be respected. The Rome Statute was ratified, and went into effect on July 1st, 2002. Special Working Groups of the Assembly of State Parties (ASP) set out to meet the requirements for activating ICC jurisdiction over “the supreme international crime.”

A Special Working Group laboured long and mightily to meet the preconditions laid down at Rome. Progress was made on a revised definition, but agreement on the role of the Security Council was nowhere in sight. When the Review Conference began in Kampala, Uganda, on May 31st, 2010, an improved definition clarified the distinction between the crime of aggression by an individual – which required a manifest violation by a leader – and an act of aggression by a state in violation of UN Charter prohibitions. New hurdles were added by requiring agreement by 30 states, and approval by at least two-thirds of all parties before an amendment would become binding. No one could be tried for aggression until 2017 at the earliest – at which time the ASP would consider the matter further.

 

The Rome Statute is a voluntary contract in treaty form entered into by consenting states. These states were not obliged to be bound by anything that they did not accept. To reassure nations that did not want to be bound, the amendments adopted in Kampala stipulated that State Parties can elect in advance not to be subject to aggression charges. Those that are not ICC members will automatically be excluded from the Court’s jurisdiction unless the Security Council decrees otherwise. Obviously, these constraints will seriously limit the reach of the ICC over the crime of aggression. As a concession to those who oppose any Security Council involvement, it was also stipulated that, if the Council fails to respond to the Prosecutor’s request for a ruling on aggression “within six months,” the Prosecutor can proceed with an investigation; provided such a course of action is approved by the entire pre-trial panel of at least six judges. Clarification of some of the ‘elements’ of an act of aggression, as well as a few ‘understandings’ were added to encourage the acceptance. When a weary Assembly President, Ambassador Christian Wenaweser, announced, after midnight on the morning of June 12th, 2010, that a consensus had been reached, the applause may have reflected relief that the conference had ended on a positive note, rather than an expression of complete satisfaction by all those present. No one doubted the heroic efforts of the Chairman and Secretariat, but the limited results left much to be desired.

 

Dwelling on shortcomings is counterproductive. So what to expect for the future? The prevalent paltry excuse that aggression had not been defined has now been eliminated. Giving the ICC jurisdiction over the crime of aggression remains on the political agenda – even if the time frame is imprecise. The arguments against criminalizing military aggression were shown to be lacking in persuasiveness what they made up in profusion. The allegation that the crime of aggression would overburden the Prosecutor was rejected. So too the contention that the Prosecutor – bound to act only on the basis of law, and subject to strict judicial controls – would be politically motivated. That concern seemed particularly ironic coming from the nations that dominate the Security Council. The truth is that powerful nations sought plausible excuses, because it would seem too absurd to argue that they preferred war to law. The world and their own citizens pay dearly in blood and treasure for such short-sighted intransigence. How many millions more must die in uniform or as innocent civilians before the time is ripe to bring criminals before the bar of justice? Allowing aggressors to remain immune from prosecution by the ICC surely does not deter illegal war-making, but rather encourages it.

 

To be sure, the long historical record of glorifying war causes many doubts about the utility of trying to alter the way that people think about such vital issues. Skepticism may be understandable, but it does not justify inaction. Unavoidable temporary shortcomings should not obscure progress and the need for change. International criminal courts were inconceivable just a short time ago; today, they exist to punish outrageous crimes committed in various parts of the world. Deterrence is more important than punishment. The ICC’s authority to try perpetrators of genocide, crime against humanity and major war crimes – without prior Security Council consent – was left untouched (and hence reconfirmed) in Kampala. Aggression remains in the Statute as a recognized and confirmed international crime. If the Security Council fails to determine whether armed force by a state has violated the UN Charter, then the ICC need wait only six months before it launches its investigation. No one can persuasively repeat the canard that aggression is not punishable simply because it is undefined.

True, the ICC must wait until after 2017 before it can again consider including aggression within its active jurisdiction, but this time may be used constructively on other fronts. The powerful ‘court of public opinion’ should be heard. Many states have already recognized that armed might in the nuclear-cyberspace age, may be not only genocidal, but also suicidal. Hopefully, countries, in ever-increasing numbers, will ratify the Kampala amendments on aggression, and enact domestic legislation making aggressive war a punishable crime over which they have priority jurisdiction. As the national nets criminalizing aggression spread, aggressive states may have to rethink their willingness to attack their neighbours. They may yet look to the ICC as a more trustworthy body to decide the fate of individual aggressors. It will be up to today’s youth and tomorrow’s visionaries to propagate and hold high the banner of truth that law is always better than war. It is a message that many leaders have yet to learn.

 

Source: http://globalbrief.ca/blog/2010/10/13/what-of-military-aggression-in-the-21st-century/

 

 

 

 

 

Will We Finally Apply Nuremberg's Lessons?

 

By Benjamin B. Ferencz

published: September 2010

source: A New Introduction to Nuremberg and Vietnam: An American Tragedy by Telford Taylor

publisher: Foundations of the Laws of War series, The Lawbook Exchange

 

When this book was published in 1970, Telford Taylor had concluded that U.S. involvement in the war in Vietnam was an American tragedy: “Somehow we failed ourselves to learn the lessons we undertook to teach at Nuremberg.”[1] What were those lessons? How acceptable were they? Which laws of war could realistically be enforced on a raging battlefield against an implacable foe? Forty years later, it is worth re-examining how it came about that this powerful and humanitarian country could have come to be seen by many as a giant “prone to shatter what we try to save.”[2] What was the sequel to Nuremberg that prompted Taylor’s study and what lessons does it hold for the present and the future?

 

I. The Lessons of Nuremberg

The primary lesson of Nuremberg was that individuals, regardless of rank or station, could be held criminally responsible by an international tribunal. Medieval notions of sovereignty had become obsolete in the modern world. No nation or person could be above the law. Law must apply equally to everyone. As Justice Robert H. Jackson, the leading architect of the trials and Chief Prosecutor for the United States put it in his opening statement in the 1946 trial against Goring and cohorts before the International Military Tribunal (IMT) at Nuremberg: “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.”[3] Taylor would put it more succinctly with his stark reminder that law is not a one-way street.

 

The reach of judicial enforcement by the IMT, and later the Tokyo Tribunal, was strictly limited. Three basic types of crimes, which had been long condemned by international custom or treaty, came within the jurisdiction of the court: aggression, war crimes and crimes against humanity. The idea that aggression should be punished as an international offense was not invented at Nuremberg. It was the culmination of many years of deliberation by distinguished jurists. The Charter for the IMT, adopted in London by the four occupation powers in August, 1945 denounced the planning or waging of wars of aggression as “Crimes Against Peace.” In his Opening Address for the United States, Justice Jackson made clear “that while this law is first applied against German aggressors . . . it must condemn aggression by any other nations, including those who sit here now in judgment.”[4] The time had come to hold leaders accountable for offenses of such magnitude that they threatened the survival of civilization.

 

The eminently fair IMT held that aggression was “the supreme international crime” since it encompassed all the other crimes. “The law is not static,” said the court, “but by continued adaptation follows the needs of a changing world.”[5] Taylor, in a speech in Paris in 1947, noted: “Judicial recognition of the long-established and universal conviction that aggressive war is a crime is a milestone in the development of international law and a new foundation stone of civilization.” He recognized that a permanent institution to punish aggression would be a “turning point in the history of international law.”[6] When Justice Jackson returned to his duties on the U.S. Supreme Court, Taylor, in October, 1946, was appointed Chief of Counsel for twelve subsequent trials designed to present a panorama of how the Nazis had gained and retained power. Taylor’s goal was to establish an incontestable record of criminality while reaffirming existing international precepts and moral standards.

 

The condemnation of war crimes and crimes against humanity had ancient roots. Codes and conventions of the Hague, Geneva and elsewhere sought to humanize man’s most inhumane activity. The list of war crimes was rather comprehensive and encompassed such obvious inhumanities as “wanton destruction of cities, towns or villages,” and “the murder or ill-treatment of prisoners of war.”[7]

Specifying rules is one thing; enforcing them on the field of battle is another. Invariably, peace-seeking accords contained vague clauses allowing restraints to be ignored when required by “military necessity,” “national honor” or “vital interests.” The wording of humanitarian texts reflected necessary compromises. Those called idealists believed that armed force could, and must, be restrained. So-called realists believed that wars were inevitable and controlling warfare by rules of law was both an unattainable and undesirable dream.

 

Laws do not interpret themselves. In a great democracy like the United States it should be expected that there will be various and strongly held points of view on such vital questions as war and peace. The law does not grow in a political vacuum. It is within the framework of such well-intentioned differences of conviction that past military interventions and current practices must be reviewed and evaluated.

 

II. How Acceptable Were The Nuremberg Lessons?

The IMT Charter and Judgment were affirmed by the United Nations and praised by legal experts from many lands. Allied courts condemned military leaders of Germany and Japan, handing down capital sentences for the crimes of aggression, war crimes and crimes against humanity. It was hoped that the lessons of Nuremberg would lead to a more humane world. Nuremberg was never intended to be merely a mask to hide the face of vengeful victors.

 

Even though there was nothing novel in prohibiting atrocities in warfare, the promise and the practice did not coincide. The Cold War was only one of the factors that restrained progress. No community can enforce norms which large segments of the population are unwilling to accept. Historically, warfare has always been extolled as the most glorious arena for demonstrating courage, love of country and other virtues. No one should disparage the sacrifice of brave young people who jeopardize themselves in battle for the defense or honor of their homeland. It must not be forgotten, however, that long before Nuremberg it was established that principles of humanity had to be respected, the right to injure your enemy is not unlimited and no soldier must obey illegal orders.

 

In 1950, the U.S. had intervened in the civil war in Korea. The Soviet Union decried American military aid to the South as the commission of aggression. In turn, the U.S. accused the Soviets of aggression by assisting the North Korean communists who had penetrated the South. A misconceived and fruitless armed intervention by the U.S. cost countless lives. Power politics did not restore peace or democracy to the area as was promised. Korea is still divided.

 

Accusations of aggression were hurled when Soviet troops invaded Hungary, French and British troops invaded Suez and American-trained troops invaded Cuba. Cambodia complained of aggression in 1964, Pakistan and India accused each other of that crime in 1965 and the U.S. was accused of it in the Dominican Republic and Nicaragua. All sides have leveled similar charges during recurring Middle-East conflicts. The banner of Nuremberg was waived in the air but its influence on the ground was practically invisible. The lack of any impartial judicial entity to determine whether crimes were committed remained a glaring deficiency in the international legal order.

 

General Taylor was highly respectful of the U.S. military but troubled by the path his country was taking in Vietnam. Strikingly, his book opened with a salutation to the American flag and particularly to “the Liberty and Justice for Which it Stands.”[8] When Taylor wrote this volume, the U.S. was already deeply mired in the war. The legality of the Vietnam War was challenged after the U.S. bombed North Vietnam in an effort to block elections that the U.S. feared the communists would win. Many loyal Americans denounced the bombings and subsequent invasion as the crime of aggression. At the UN, progress toward creation of an intentional criminal court was stymied. Academics were sharply divided about the legality of U.S. intervention whether it was legitimate collective self-defense or the crime of aggression. UN Committees dallied for years trying to improve on the Nuremberg definition of aggression that had been good enough for Jackson, the IMT, General Taylor, the UN General Assembly and a long list of international legal experts. A consensus definition had been reached in 1974 after decades of negotiation. Still, the Pentagon opposed the idea of any outside organization to oversee their dangerous endeavors. Making the fallacious argument that aggression had never been adequately defined seemed a persuasive ploy to derail further action toward creating a new international criminal court. Instead of deterring aggression, potential war-makers, knowing there was no international court to try them, had nothing to fear and could continue their aggressions with impunity.

 

Around Mach, 1968, it became public knowledge via television and radio that the U.S. army had destroyed whole villages whose inhabitants were thought to favor the communist Vietcong enemy. Taylor, mindful of General McArthur’s admonition regarding the sacred duty of the soldier to protect the weak and the unarmed shone his spotlight on the highly publicized war crimes committed in Son My, more commonly known worldwide as the Mylai Massacre. American soldiers had deliberately machine-gunned helpless Vietnamese civilians, including women and children, seeking shelter in a ditch. No court had yet tried anyone for that atrocity. In the end, only one person, Lt. William Calley, was prosecuted in a U.S. military court. Lt. Calley was convicted and, though originally sentenced to life in prison, served only three and one-half years under house arrest for war crimes which had brought worldwide disgrace upon his country.

 

By the time the U.S. left Vietnam in 1975, it had lost over 58,000 men and women. Millions of Vietnamese were killed in a war that had never been declared by Congress. North Vietnam had not attacked the United States and the Security Council had not authorized the use of armed force in what was a civil war between rival political factions. Cambodia, a country with which we were not at war, was bombed by U.S. planes in an effort to interdict supplies going to North Vietnamese troops fighting in the South. Under the belief that they were waging a necessary war against the spread of evil communism, a mortal threat to democracy, U.S. troops brazenly committed war crimes. Many very respected law professors, led by Richard Falk of Princeton, challenged the legality of U.S. intrusion into the Vietnam War.[9]

 

The legal journals and texts were filled with divided opinions. On the field of battle, the voice of the law became an unheeded whisper. Pentagon leaders repeatedly called for more troops to assure victory. The best and the brightest advised President Lyndon Johnson to carry on the fight to which administrations, dating to Truman’s, had given steadily escalating support. No American liked to criticize patriotic young American boys who were risking their lives under unbearable conditions. Thomas Paine, who inspired the American Revolution, had written that a true patriot is one who dares to criticize his country when it has gone astray. All who dared to protest against the Vietnam War were not unpatriotic radicals. Most just wanted to bring our boys back alive. How many young people fled the country to avoid being drafted and how many committed suicide, or turned to drugs in their despair, can never be known. Public outcry, and particularly the protesting voices of young people, brought the Vietnam War to an inconclusive end. Taylor, who visited North Vietnam before the war ended, viewed it as a military and moral debacle. The full extent of American misjudgments on Vietnam was to be authoritatively revealed 20 years later.

 

U.S. Secretary of Defense Robert M. McNamara resigned in 1966 when he became convinced that the war in Vietnam could not be won. Nearly thirty years later, he published his views , wherein he tabulated some of the major causes for “our disaster in Vietnam.”[10] According to the man who was in the best position to know, we misjudged our adversaries and exaggerated the dangers to the U.S. We underestimated the political forces within the country and the appeal of nationalism. We were ignorant of the people and their leaders and failed to recognize our limitations in dealing with unconventional adversaries. We failed to adequately inform the American public. We had no right to try to shape other nations in our image. We failed to recognize that military action should be supported by the international community. We did not know how to change course. All of the listed failures led the repentant former Secretary of Defense to conclude that it would be in the U.S. interest to create a world “in which relations among nations would be based on the rule of law . . .” It was an echo of President Eisenhower’s advice in 1958: “The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”[11]

 

In a December 12, 2000 Op-Ed article in the New York Times, Robert McNamara and I urged President Bill Clinton to sign the Rome Treaty for an International Criminal Court, which, despite U.S. opposition, had been adopted overwhelmingly in 1998. The legal effect of a signature to a treaty without ratification, would only signify general support. Clinton had repeatedly spoken out in favor of the proposed International Criminal Court but he was wary of the opposition dominated by the powerful conservative Chairman of the Foreign Relations Committee, Senator Jesse Helms.

 

On December 31, 2000, among his last official acts, President Clinton directed that his signature be affixed to the ICC treaty at the UN. The next morning, the press reported that Helms was livid. McNamara, of course, was happy. No one anticipated that the next administration would take the unprecedented step of repudiating a signature of the preceding President. During his last years, a repentant McNamara vigorously campaigned for world peace, nuclear disarmament and the creation of a permanent international criminal court that would clarify and enforce the laws of war. He died on July 6, 2009, at the age of 93.

 

III. Where Do We Stand?

Korea in 1950, and Vietnam in 1965 were illustrative of failed military interventions which ignored the lessons of Nuremberg. As part of a political and religious regional power struggle, Iraq, with U.S. military support, fought a brutal war of aggression against Iran between 1980 and 1988. His opponents at home were being ruthlessly suppressed or murdered. Economic sanctions did not stop Saddam but increased the suffering of his people. The UN was divided along political lines. What was denounced as terrorism by some, was hailed as heroism by others. Resolutions condemned the taking of hostages and illegal seizures of aircraft taking place with growing frequency. Diplomatic efforts to halt the crimes went nowhere. In critical respects, it remained an ungoverned world.

 

Another notable tragedy came with the Gulf War, which started on August 2, 1990 when the armed forces of Iraq launched a massive surprise attack against Kuwait, its peaceful neighbor. Iraq’s dictator proudly declared that he was responding to disagreements about oil production and Kuwait’s refusal to relinquish Iraqi territory acquired as a result of financial support to Iran in that country’s aforementioned conflict with Iraq. The White House, with important oil interests in the area, lost no time in denouncing the annexation as a blatant case of naked aggression. In an unusual display of unity, the UN Security Council unleashed a barrage of resolutions blasting Iraq’s aggression. U.S. Ambassador Pickering announced that, at the request of Saudi Arabia, the U.S., aided by several other nations, was sending military forces into the region. Saddam remained defiant.

 

On November 29, 1990, UN Resolution 678 authorized member states to use “all necessary means” to expel Iraq and restore peace and security in the area. Iraq was given an ultimatum to get out of Kuwait by January 15. Hussein continued to thumb his nose at the world community. The very next day, January 16, 1991, thousands of coalition planes and missiles struck military targets in Iraq. It was a display of military fire power and prowess never before witnessed in human history. After 100 hours of being battered, the Iraqi army was in complete rout. President George H. W. Bush, called all fighting to a halt. No action was taken to arrest leaders responsible for the aggression and related crimes. Saddam, protesting that he was struggling for right and justice, vowed to fight on.

After his forced retreat from Kuwait, the dictator promptly vented his wrath against minority rebels within his own country. Saddam’s forces massacred tens of thousands of Shiites and Kurds over the next months with the resulting chaos displacing several million civilians. The United States and its allies, who had publicly warned Iraq that it might face war crimes trials, seemed to have forgotten its promise and the mandates of Nuremberg. President Bush had lost his appetite for more war. In the grim equation of power politics, a known tyrant may have been regarded as less dangerous than an unknown successor. In any event, the new crimes against humanity committed by Saddam Hussein against his own citizens were described by Washington as Iraq’s internal affair. Those who had the capacity to enforce international law in 1991 did not chose to uphold the Nuremberg principles and mandates. It was sadly ironic that a great military victory won by brave young people fighting in the deserts of a distant land would be followed by a great human rights disaster and a lack of legal courage back home to vindicate the violated human rights. The world would come to regret the failure to bring Saddam to trial for his crimes in 1991. No study of the ensuing period can fail to note the impact on American policy by an event that came to be known as “9/11.” On the eleventh day of September, in the year 2001 nineteen men hijacked four airplanes. The hijackers crashed two into New York’s World Trade Center (one into each 110-story Twin Tower), the third plane into the Pentagon and the fourth, before reaching its intended target, crashed in a croft in rural Pennsylvania killing all on board. The lives of nearly 3,000 innocent civilians were lost in a matter of moments, incinerated in the crashes and conflagrations and, in the case of the Towers, unfathomably pulverized by the collapses. It was the culmination of a series of earlier attacks on U.S. installations in East Africa and the Middle East over a period of years. The world was shocked by the brazen 9/11 assault, apparently planned by Al-Qaeda, a militant, fundamentalist Muslim group led by Osama Bin Laden, the scion of a Saudi billionaire. For years, Bin Laden had fomented hatred for the U.S. and its allies and recruited radically disaffected men from all corners of the Muslim world for a jihad against the repugnant United States. Immediately, the focus turned to the territory of Afghanistan, where Bin Laden and Al-Qaeda were believed to enjoy safe haven courtesy of the Taliban regime, the de facto government of the country. On October 7, 2001, U.S. Ambassador to the UN John Negroponte wrote to the President of the Security Council to invoke Article 51 of the UN Charter and state that “the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defense . . .” Analogies were made between the Taliban’s Afghanistan and a neutral state that unlawfully enables a belligerent to mount cross-border military operations. The subsequent U.S. and NATO military actions initiated in Afghanistan were rather widely considered within the rights of the U.S. and its allies although, of course, the legality of this campaign has not been endorsed by all and the current state of the military operations have taken on a complex and troubled character during the ongoing occupation.

 

After taking action in Afghanistan, Washington soon turned its attention to an old nemesis. The Bush Administration began to voice unfounded suspicions that Al-Qaeda was allied with Saddam Hussein - a most unlikely partnership - and that the attackers had hideouts in Iraq, Iran, Pakistan and elsewhere throughout the Muslim world. The U.S. argued that Saddam Hussein’s support for terrorists threatened the security of the United States. Furthermore, said President Bush, Saddam was hiding weapons of mass destruction and had nuclear capabilities that could not be tolerated. The American public rallied behind their Commander-in-Chief.

 

On March 19, 2003, American forces, supported by the British and a few small contingents from other nations, again attacked Iraq, hoping to repeat their smashing victory of 1991. This time the U.S. acted without UN authorization, unlike how it had proceeded in the Gulf War. It would appear later that the unmistakable impetus for going to war against Iraq the second time was a pretext to finally overthrow the hated Saddam Hussein. The Security Council did not authorize the 2003 hostilities and, in fact, called for no military action absent verification of the U.S.’s allegations. Neither Nuremberg nor the UN Charter permitted the use of armed force to bring about a regime change. Since UN permission to use armed force was lacking, it appeared to many that the U.S. had launched an illegal war, had committed aggression. Lawyers have been arguing ever since whether the unauthorized assault on Iraq in 2003 constituted the crime of aggression or whether it was a necessary pre-emptive first strike which might be characterized as permissible self-defense. The disclosure by the London Times in May, 2005 of the detailed secret Downing Street memo strongly suggested that the Bush administration had embarked upon a deliberate deception to gain public support for its long-planned military action. Nuremberg precedents had been noted but no one expected the public to discover the hidden truth and there was still no international court with authority to resolve the issue. In a democratic society, even a well-intentioned failure to inform the public undermines the foundations of democracy. Deliberately deceiving the public also undermines the foundations of law.

 

When Saddam was finally captured in December, 2003, hiding in a hole in the country he had dominated for decades as among the world’s most powerful and merciless dictators, the U.S. set up an interim provisional puppet regime in Iraq. After much debate, it was decided to put the tyrant on trial before a newly created Iraq High Tribunal composed only of local judges applying Iraq law which, unlike the nascent ICC in The Hague, allowed the death penalty. The trial against Saddam and associates opened in Baghdad in October, 2005 and ended in July, 2006. Saddam was sentenced to death in November and, after review, was executed on December 30, 2006. Two of his henchmen suffered the same fate. It was noteworthy that the defendants had only been charged with crimes against humanity in the killing of a relatively small number of Kurds. Although proof was readily available that the tyrant was also responsible for what the Nuremberg Tribunal called “the supreme international crime,” the question arose why Hussein had not also been charged with the crime of aggression for his manifestly illegal invasions of Iran in 1980 and Kuwait in 1990. A straightforward answer came from Professor William Schabas, a preeminent expert on international criminal law, who wrote: “Any prosecution of Saddam Hussein for aggression would invite analogies with the aggression committed by the U.S. and Britain in early 2003, in Iraq.”[12]

 

IV. Where Are We Going?

The General Assembly of the United Nations passed resolutions recommending the creation of a permanent international criminal court. America became the leader in that endeavor but its enthusiasm fluctuated, depending on the political parties in power.

 

The U.S. had been in the forefront when the Security Council created ad hoc tribunals in 1993 and 1994 to try those who committed Crimes Against Humanity and atrocities in the former Yugoslavia and Rwanda. The jurisdiction of those temporary courts was strictly limited and posed no threat to the U.S. since Americans were not involved in those conflicts and the crime of aggression was not relevant. Nevertheless, a powerful political minority, strongly supported by Pentagon officials, remained adamantly opposed to any foreign criminal tribunal that might try to assert jurisdiction over any American nationals.

 

On May 6, 2002, encouraged by a strong, ultra-right-wing constituency, President Bush’s UN Ambassador Bolton (a Helms protégé) repudiated President Clinton’s signature on the ungratified Rome Statute. It was an unnecessary and unprecedented rebuke that emphasized the sharp political differences that divided the nation. The Republican Congress passed laws which had patriotic titles and were clearly designed to undermine the ICC. The world community was shocked and frightened by what many viewed as American unilateralism and its defiant rejection of Nuremberg and international law.

 

Meanwhile, battles against Al-Qaeda and insurgents continued on throughout Iraq and spread to neighboring Afghanistan and Pakistan. During the Cold War, the U.S. had armed militant Taliban fundamentalists in Afghanistan when they were trying to drive Soviet invaders out of their country. When American soldiers entered their country in search of Bin Laden, many of the Taliban turned their guns on the U.S. troops. Suicide-bombers defiantly matched their power against modern weaponry. Casualties mounted with no end in sight. On March 15, 2008, a defiant Bush declared “This is a fight America can and must win.” The U.S. government failed to recognize that you cannot kill an ideology with a gun. The U.S. fell into disrepute all over the world. “Guantanamo” and “Abu Ghraib” became synonymous with the United States’ programmatic use of torture. The media displayed graphic images of torture and mistreatment of prisoners in violation of the Nuremberg edicts. The conservative government failed to hold accountable those leaders who violated standards designed to protect military personnel of all lands. The army was not willing to indict itself. Soldiers refused to deploy to Iraq. Many calls were heard and books were written arguing for the indictment of President Bush and his cabinet. In June, 2008, Congressman Kucinich moved to impeach President Bush for a long list of constitutional violations and offenses connected with the conflicts in which the U.S. remained embroiled. The Republicans in power took no effective action. Many lawyers, scholars and journalists made the case against the Bush Administration. Professor Michael Haas’s 2009 title stands out for its painstaking enumeration of 269 war crimes allegedly committed by the Bush administration.[13] The crime of aggression was also left in limbo. Nations that had the power to wage war successfully refused to give up that power despite the law. And nations that lacked such power were unable to do anything about it. The misleading debate about the absence of a definition continued unabated. Failure to reach agreement about aggression had nearly torpedoed the 1998 Rome Conference.

 

In the end, aggression was listed as one of the four core crimes, but the ICC was prohibited from exercising its jurisdiction until a near-consensus could be reached on an amendment settling the definition question and assuring the Security Council that its rights would be respected. These pending issues have remained unresolved and will be taken up at a Review Conference to take place in 2010. If no agreement is reached, political leaders who do not see clearly enough may continue to grant immunity to aggressors despite the Nuremberg Charter and Judgments. It remains to be seen whether leading diplomats will recognize that deterring illegal wars, even to a limited extent, is worthwhile.

 

The world remains a very dangerous place. New weapons of devastating power threaten human survival directly, and, through their destabilizing effects on societies, indirectly. Many young people in many lands are ready to kill and be killed for the particular cause of their ideology or nation. Despite such obstacles, the spirit of Nuremberg lives on. It is increasingly recognized that international disputes can and must be settled without the use of armed might.

 

New international courts designed to protect humanitarian values have come into existence in recent years. There has been an awakening of the human conscience. Telford Taylor was a man of remarkable talents and integrity. His books dared to challenge authority wherever governments, including his own, trampled on the rights of their citizens. At Nuremberg, he was my inspiring Chief. Our friendship was sealed when we both parachuted out of a disabled military plane over the ruins of Berlin. Later, we practiced law together in New York City. We had both seen and experienced the evils and inhumanities of war and embraced the self-evident conclusion that the best way to serve humanity is to eliminate warmaking itself. Law is always better than war.

 

To be sure, changing cherished norms depends on a process of comprehensive re-education that requires time and determination, tolerance and compromise. Beyond the wildest dreams of earlier generations, new techniques of communication can be used to intensify and accelerate the effort by alerting the world to the growing hazards and the compelling need to uphold a rule of law. Nuremberg’s greatest achievement was the condemnation of aggressive war as an international crime. The failure to implement that hope has been Nuremberg’s greatest disappointment. Telford Taylor’s warning about Vietnam merits repeating.

 

The events of current history reinforce the conviction that change, such as replacing the prevailing war ethic with a new peace ethic, is possible and is necessary. The emancipation from slavery in America, the elimination of colonialism, eliminating de jure discrimination against minorities and women and a host of human rights protections are illustrations that slow change is possible. The most noteworthy example is the election of an African American, Barack Obama, as President of the U.S. Obama’s campaign of change culminated in his resounding victory. Obama, a former law professor, began to dismantle the restraints against the International Criminal Court that his predecessor had imposed. Placing in stark relief President George W. Bush’s foreign affairs and the policies that his successor merely had the opportunity to espouse upon taking office, the Nobel Committee awarded President Obama its Peace Price in October, 2009. The next month, the U.S. Ambassador-at-Large for War Crimes Issues observed the ICC’s Eighth Session of the Assembly of States Parties. The U.S. had not attended any prior Assembly. There is cause for hope.

 

1. Infra at 207.

2. Id.

3. Justice Robert H. Jackson, Opening Statement Before the International Military Tribunal at Nuremberg (Nov. 21, 1945), in The Trial of Major German War Criminals by the International Military Tribunal Sitting at Nuremburg, Germany (London : H.M. Stationery Office, 1946), 5.

4. Id. at 154.

5. As reproduced in Benjamin Ferencz, An International Criminal Court (Dobbs Ferry, NY: Oceana, 1980), vol. I, 477.

6. Telford Taylor, The Meaning of the Nuremberg Trials, Speech in Paris (April 25, 1947) (transcript on file with the Author). I remain grateful to Drexel Sprecher for having provided me with the text.

7. See, e.g., Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Art. 6(b).

8. Infra at 5.

9. See, e.g., Falk, International Law and the United States Role in the Viet Nam War, 75 Yale L. J. 1128 (1965-66).

10. Robert S. McNamara with Brian VanDeMark, In Retrospect: The Tragedy and Lessons of Vietnam (New York: Times Books, 1995), 321-2.

11. President Calls Law Key to World Peace, N.Y. Times, May 1, 1958, at 14; see also 38 Dep’t. State Bull. 831 (1958).

12. William Schabas, “Shouldn’t Saddam Hussein Be Prosecuted for the Crime of Aggression?” in Saddam on Trial: Understanding and Debating the Iraqi High Tribunal, ed. Michael P. Scharf and Gregory S. McNeal (Durham, N.C.: Carolina Academic Press, 2006), 225.

13. Michael Haas, George W. Bush, War Criminal?: The Bush Administration’s Liability for 269 War Crimes, (Westport, Conn.: Praeger, 2009) (foreword by Benjamin Ferencz).

 

BENJAMIN B. FERENCZ, J.D. Harvard 1943, was Chief Prosecutor in the Nuremberg war crimes trial against SS Murder Squads (Einsatzgruppen). Along with Antonio Cassese, he is a 2009 Erasmus Prize Laureate. His many books, articles and lectures on aggression and world peace are available without cost on his website: WWW.BENFERENCZ.ORG

 

 

 

 

 

 

A Duty to Uphold the Law, Even in War

 

By Benjamin B. Ferencz

published:April 2010

source: http://www.washingtonpost.com/wp-dyn/content/article/2010/04/07/AR2010040704425.html

publisher: Washington Post

 

Stephen G. Rademaker's April 2 op-ed ["Can judges bring an end to war?"] warned against allowing the International Criminal Court to try leaders for the crime of waging aggressive war.

 

Mr. Rademaker, a former assistant secretary of state in the Bush administration, echoes the opposition of the late senator Jesse Helms, former U.N. ambassador John R. Bolton and other conservatives who would rather rely on force than law. But his arguments are refuted by both the U.N. charter and the statute of the ICC. An upcoming review conference in Kampala, Uganda, with participants from more than 100 nations, including some of our staunchest allies, will decide. No country will be bound without its consent.

 

The Nuremberg trials held that warmaking in violation of international law was no longer a national right but had become an international crime for which responsible leaders could be held accountable. Law had to apply equally to all. My supreme commander in World War II, Dwight D. Eisenhower, warned when he became president: "The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law."

Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, recently reiterated that he "would rather deter a war than fight one." Deterrence is the best way to protect the lives of our service members and the unavoidable loss of countless civilians.

 

All Americans should have been proud when President Obama was awarded the Nobel Peace Prize. His administration has a chance to again inspire the world, as we did at Nuremberg. If not now, when?

Benjamin B. Ferencz, New Rochelle, N.Y.

The writer was a prosecutor at the Nuremberg war crimes trials after World War II.

 

 

 

 

 

Ben Ferencz Letter to Admiral Mullen Re Aggression

 

By Benjamin B. Ferencz

published: March 2010

source:Personal Communication

 

March 3, 2010

Admiral Mike Mullen

Chairman of the Joint Chiefs of Staff

9999 Joint Staff Pentagon

Washington, DC 20318-9999

ATTN: PLEASE SEE THAT THIS LETTER REACHES THE CHAIRMAN OF THE JOINT CHIEFS PERSONALLY

 

Dear Admiral Mullen:

Since I am entering my 91st year and without staff, I apologize for not being able to reach you by any other means. The message I feel compelled to convey concerns our vital national interests. A glance at my website (www.benferencz.org) indicates my credentials: graduate of Harvard Law School (1943), combat soldier in World War Two (5 battle stars), Nuremberg war crimes Prosecutor and recent winner of the prestigious Erasmus Prize for lifetime service to humanity.

 

I am encouraged to write because I particularly appreciated your wise observation (C-SPAN, Jan. 6, 2010, and elsewhere) that you "would surely rather prevent a war than fight a war." It was a reminder of President Eisenhower's conclusion that "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).

 

Nuremberg, inspired by our most respected jurist, Robert M. Jackson, stood for the proposition that war-making was no longer a national right but an international crime for which responsible leaders could be held to account by an international court. The reaffirmation by the United States that law applies equally to all was hailed throughout the world. The primary goal was to deter illegal wars. That has been my own primary goal for half a century and I am now calling to you for help, for the sake of our military, our country and the world.

 

I have written more on the crime of aggression than anyone (all of my books are available free on my website, courtesy the U.N. Audio-Visual Program). The Statute for the International Criminal Court that came into existence in 2002 lists aggression as one of the 4 crimes. No one cane be tried for that particular crime until certain new conditions are met: (1) aggression must be defined - that sounds reasonable enough but ignores the fact that it has already been adequately defined; (2) the Security Council must determine that aggression by a State has occurred - that seems reasonable too but it ignores the fact that Security Council powers are already fully respected in the U.N. Charter and the existing Rome Statute. Raising such non-persuasive arguments gives rise to fears and suspicions about U.S. intentions. Until these obstacles are removed, aggressors will know that they remain immune and cannot face trial by the ICC. Instead of deterring war, they will be encouraged to make war.

 

The ICC Statute will be discussed at a meeting of the Assembly of State Parties between March 22 - 26, 2010, in preparation for a Review Conference in Uganda, from May 3 - June 12, 2010. With adequate determination and skilled draftsmanship, compromises to meet all legitimate concerns are possible.

But the goal must be clear: the lock which now exists preventing aggressors from being tried must be removed from the courthouse door. Failure to make "the supreme international crime" punishable by the ICC would, in fact, be a repudiation of the Nuremberg Principles and the rule of law. It would be a step backward instead of forward.

 

Despite contemporary political hesitations and legal ambiguities, we must not lose sight of long-range goals even if short term achievements seem minimal. We were all proud when our President received the Nobel Prize for Peace. I am quite sure that he favors a U.S. policy that may deter war.

I would be pleased to meet with you and your legal staff should furtherclarification be desired.

 

With all good wishes,

Benjamin B. Ferencz