Closing A Gap in International Law - Make Law Not War

29 April 1998

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

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

Reluctance to Yield Power

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

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

Security Council Control

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

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

Defining the Crimes

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

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

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

Powers of the Prosecutor

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

Fair Trial

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

Compensation to Victims

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

Still to be Discussed

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


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

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

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