Benjamin Ferencz Reflects on The Rome Conference
The first reason for this message is to convey sincere appreciation to all of you who contributed to the "establishment" in Rome of the first "permanent" International Criminal Court in human history. Bill Pace, Rik Panganiban and the entire crew of enthusiastic, able and dedicated young staffers of the Coalition, as well as all the NGOs. You are hereby entitled (by the authority not vested in me) to inform your grandchildren that you have made a significant contribution toward replacing the law of force by the force of law.
My Reaction To Rome
Since I have been striving for that goal for well over fifty years, and many have asked me for my reaction to the events in Rome, I will share with you some feelings and conclusions. The statute is much too long and is both remarkable and defective in many ways. No one could expect hundreds of lawyers coming from different traditions and cultures to agree on anything; yet they did agree on a great deal. The exhilaration that swept through the room at 8:50 p.m. on Friday, June 17, 1998, when Chairman Phillippe Kirsch announced that the Statute for the Court was adopted, was an unforgettable experience. Everyone knew that the statute was far from perfect yet the room was filled with wild applause and participants cried, hugged, kissed and congratulated each other. I saw the spontaneous outburst as a reflecting a deep-rooted yearning for the legal restraint of international violence.
I must confess that as an American who is eternally grateful to the United States I was saddened to see my country humiliated by the overwhelming vote against the U.S. motion that could have derailed the adoption at the last moment. It pained me when the applause continued unabated as nations showed their resentment against what they perceived to be bullying by an unreasonable and stubborn superpower. I felt sorry for David Scheffer whom I have known for many years as a fine and dedicated public servant.
I believe that a patriot is not one who says: "My country, right or wrong!" That can be a recipe for disaster - as Germans learned in World War II. The true patriot will support his country when it is right and seek to correct it when it has gone astray. I tried to explain to some delegates that the misguided U.S. policy reflected an attempt to accommodate those decent and concerned Americans who do not fully understand the needs of the future, who are isolationist in their sentiments and who fear change. But I wondered what happened to the vision, courage and leadership of a Woodrow Wilson, Roosevelt or Kennedy that once inspired the world.
I am particularly pleased that aggression was included as one of the four core-crimes. I am very mindful that the conditions under which the ICC can consider aggression have not yet been spelled out - and may never be met. Still, aggression is on the short list of crimes. Had it been omitted completely (as even some of my admired Human Rights groups were ready to accept), it would have undercut the main achievement of Nuremberg: making plain that aggressive war was not a national right but an international crime. I feared that an ICC built on a foundation from which the cornerstone was missing would topple. More important - it might appear that aggressive war was not considered a crime punishable under law, and thereby the war ethic (which spawns all human rights violations) would be strengthened and the outlawry of war-making itself - the "supreme international crime" would be repudiated.
Another provision that pleased me was Art. 73, requiring the Court to establish principles for restitution, compensation and rehabilitation for victims. I spent many years of my life helping to establish those principles in Germany when there were no precedents whatsoever and to implement them for victims of Nazi persecution. Now they are part of international law Thank you: Yael Danielli, Harris Schoenberg, Redress and all others who helped move the world in a more humane direction.
The Sovereignty Trap
Requiring different states to consent before a person accused of horrendous crimes - that invariably required the complicity of the state itself - is a major shortcoming. Other restraints on prosecution also reflect the continuing inability of states to accept a new way of thinking. Hundreds of millions of people died in the 20th century because nations were unable to recognize that we live in an interdependent world where the "sovereigns" are the people themselves and that all people are entitled to live in peace and human dignity under the protection of universal law. The ICC statute moves in that direction but not far enough. States have yet to conclude that they must accept binding rules to benefit everyone.
Where Do We Go From Here?
Much still remains to be done before the ICC becomes a reality. We must go on and on and on and never give up. I am now past 78 years of age and I can't go on much further. I have personally witnessed incredible inhumanity committed by human beings on other human beings and I have heard the cries of despair. I have known and convicted mass murderers. I have learned that it you try hard enough, and never give up, progress toward a more humane world order is possible - even if it takes a while. Following Nuremberg, Tokyo and the Tribunals for Yugoslavia and Rwanda, Rome was an important stepping stone but not the end of the road. I will continue to do what I can as long as I can but the burden must now pass to younger hands. The world will be what you make it! I wish you all the best of luck.