From Nuremberg to Rome: The Prosecution of International Crimes
A Brief Introduction
Prosecuting crimes against peace and humanity was not invented at Nuremberg in 1945. Since ancient days, the legality of war itself and how wars were waged had been debated by renowned scholars from Plato to Grotius. Over two hundred years ago, Immanuel Kant's Zum Ewigen Frieden, called for the protection of peace and human rights through the rule of international law. Following the horrors of the Second World War, the trials at Nuremberg reflected the desire of people everywhere for a more peaceful and humane world. When, in 1991 and 1994, ethnic and political violence erupted into genocidal acts and massive crimes against humanity in former Yugoslavia and Rwanda, the United Nations Security Council quickly created special tribunals to bring leading wrongdoers to justice. Another significant step in replacing the law of force by the force of law may be taken in Rome in the summer of 1998. Nations are convening to lay the foundation for a permanent international criminal court.
The first major effort to curb war-related crimes by international law arose after World War I. In 1919, a commission - appointed by the victors - concluded: "All persons belonging to enemy countries, however high their position...who have been guilty of offenses against the laws and customs of war or the laws of humanity are liable to criminal prosecution." To avoid allegations that the enemy was being subjected to ex post facto law, the German Kaiser was not charged with the crime of aggression since no sovereign had ever before been brought to trial for making war. Instead, the Treaty of Versailles provided that Wilhelm II would be tried by an Allied court for "a supreme offense against international morality and the sanctity of treaties." Lesser leaders, accused of various atrocities, were also to be handed over for trial.
Germany promptly denounced the treaty as a Diktat. The Kaiser found refuge in Holland which refused to extradite him, noting that there existed no international criminal tribunal competent to try a head of state. The frustrated Allied Commissioners recommended that German aggression be formally condemned and that "for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law." Some German officers accused of atrocities were eventually brought to trial by the German Supreme Court which handed down a few light sentences. The inability to bring to court those primarily responsible for war and its atrocities emphasized the need to create a more effective system of international criminal justice.
In 1927, the League of Nations declared that "a war of aggression can never serve as the means of settling international disputes and is, in consequence, an international crime." In 1928, the Kellogg Pact, renounced war as an instrument of national policy and a Pan-American Conference declared a war of aggression to be "a crime against mankind". But nothing was done to create a court to punish violators. Japan invaded Manchuria in 1931 and Mussolini brazenly seized Ethiopia. In 1935, following the assassination in Marseilles of King Alexander of Yugoslavia, the outraged League appointed a committee to draft a convention for the repression of such terrorist acts. The committee appended a complete text - about five pages long - for an International Criminal Court. No nation was willing to accept it. Humankind would pay dearly for the indecision of the decision-makers.
Hitler began the German march of conquest over Europe. Behind the Blitzkrieg of the German tanks came the Einsatzgruppen to murder without pity or remorse every Jewish man woman or child, every Gypsy or perceived adversary they could catch. Prisoners of war were executed or starved to death, millions of civilians were forced into slave labor, while those unable to work were simply annihilated in gas chambers and concentration camps. Japanese troops committed similar crimes in areas they occupied. Repeated Allied warnings that those responsible for atrocities would be held to account went unheeded. The British proposed that, when the war was won, prominent Nazis be taken out and simply executed. It could have come as a relief but not as a surprise when defeated German and Japanese leaders found themselves in the dock to answer for their foul deeds in a court of law.
Nuremberg and Other Trials
Three months after the end of World War II, culminating six-weeks of intensive negotiations in London, the United States, Great Britain, the Soviet Union and France, signed an agreement creating the International Military Tribunal (IMT) for the Prosecution and Punishment of the Major War Criminals of the European Axis. Only three crimes for which there would be individual responsibility were to be within the jurisdiction of the court:
1- CRIMES AGAINST PEACE (planning and waging aggressive war);
2- WAR CRIMES (prohibited by custom and Hague Conventions) and
3- CRIMES AGAINST HUMANITY (such as genocide and similar persecutions against civilian populations).
Only leaders and organizers or instigators who conspired to commit the crimes would be held responsible by the IMT. Superior orders would be no defense but could be considered in mitigation of punishment. Every provision of the 30-articles was carefully designed to assure a fair trial for the accused. It was the first such tribunal in human history.
Twenty-four major Nazi war criminals were placed on trial. The Chief Prosecutor for the United States, and the principal architect of the IMT Charter, was Robert H. Jackson, on leave from the U.S. Supreme Court. "We must never forget", he said, "that the record on which we judge these defendants is the record on which history will judge us tomorrow." Defendants were represented by competent counsel of their own choice - paid for by the Allies. The judges from the victor states regretted that there were no real neutrals to sit in judgment but vengeance was never their goal. The trial, in four languages, was open to the public so that all could see that it was conducted to "commend itself to posterity as fulfilling humanity's aspirations to do justice". Nazi leaders received a fair trial the likes of which they never gave to anyone. Several defendants were acquitted. Submitting captive enemies to the judgment of the law was, as Jackson said, "one of the most significant tributes that Power has ever paid to Reason."
The Judgment rendered by renowned Allied jurists was clear, comprehensive and persuasive. The judges pointed to the many treaties and international declarations that made aggressive war an illegal act ("the supreme international crime") for which even a head of state would be accountable. It traced the origins of crimes against humanity. The judges held that the Charter was not ex post facto law designed to punish Germans only. "The law is not static" said the Tribunal, "but by continued adaptation follows the needs of a changing world." True, by confirming that aggressive war and crimes against humanity were violations of established legal norms, the IMT was taking a step forward, but its judgment was based on evolving common law and it was a step long overdue. Both the Charter and Judgment of the IMT were unanimously affirmed by the first General Assembly of the United Nations. Its principles were thereby confirmed as valid expressions of binding international law.
Crimes of the enormity revealed by IMT required collaboration from many segments of German society but the four occupying powers were unable to agree upon additional joint trials. Instead, they enacted Control Council Law No. 10, - very similar to the IMT Charter - authorizing unilateral trials in their respective zones of occupation. The United States decided to continue with a dozen subsequent proceedings in the same courthouse at Nuremberg. The Chief of Counsel was General Telford Taylor (Harvard Law graduate and later Professor at Columbia and Yeshiva University). The accused included medical doctors responsible for illegal human experiments, jurists who distorted law to achieve Nazi goals, high-ranking military officers responsible for atrocities, Foreign Ministry officials who helped plan aggression and industrialists who seized foreign properties and worked concentration camp inmates to death. 177 defendants were thus put on trial, of whom 35 were acquitted. These twelve trials, with only American judges on the bench, further clarified international law and made plain (contrary to the view of IMT) that crimes against humanity could be punished even if committed in peacetime. The law had taken another step forward to protect humankind.
During the same period, the U.S. Army, applying the rules of war, put on trial in the liberated concentration camp at Dachau a number of captured concentration camp commanders and those who had murdered allied troops. Trials also took place in the other zones of occupied Germany as well as in countries that had been overrun by the German armies. These were basically consistent with the Nuremberg precedents and added to the growing body of international criminal law. General Douglas MacArthur, Supreme Commander for the Allied Powers in the Far East, guided by the IMT Charter, appointed tribunals to try Japanese leaders accused of aggression, war crimes and crimes against humanity. Many Japanese viewed these trials as hypocritical and more vengeance than justice - arguing that America's nuclear bombing of Hiroshima was a crime against humanity. A dissenting opinion by Tokyo Judge Pal of India (who would have acquitted all twenty-eight defendants) maintained that all nations must share some responsibility for war and its inevitable consequences.
The United Nations Steps In
Further elaboration of norms to govern civilized society was taken up by the United Nations. The UN Charter expressed the determination of "We the peoples" to "save succeeding generations from the scourge of war". Its preamble stressed the need for justice and respect for international law. Shocked by the enormity of Nazi crimes revealed at Nuremberg, the Assembly, after affirming the validity of the Nuremberg Charter and Judgment, called for a convention to punish the crime of Genocide. A draft Convention was quickly prepared in 1947 and the Secretariat, with the help of experts (Pella, de Vabres and Lemkin) appended two versions of proposed statutes for An International Criminal Court. Appendix I contained 43 articles and Appendix II had only 36.. But nations were still not ready. How Genocide was to be punished was left to such international penal tribunal as States might later accept.
UN committees were appointed to draft a Code of Crimes against the Peace and Security of Mankind as well as a new statute for an International Criminal Court to enforce the Code. After long debates, a statute for the court was submitted in 1951 (55 articles) and revised in 1953 (54 articles). But cold-war rivalries, coupled with mistrust and reluctance to yield sovereign rights to any new international institution, blocked effective action. It was argued that until there was agreement on a Code of Crimes there was no need for a criminal court to enforce it. Until there was agreement on the definition of aggression - "the supreme international crime" - there could be no Code. The Code, the definition of aggression and the Court were thus linked and conveniently put into the deep freeze by the cold-war. The UN was stymied and the world went back to killing as usual.
In 1974 - with a thaw in US-Soviet relations - it was possible, with General Assembly approval, to reach a consensus definition of the crime of aggression. It confirmed (as prescribed by the U.N. Charter) that only the Security Council had authority to determine when aggression by a state had occurred. The definition contained illustrations of aggressive acts but it allowed considerable flexibility in deciding whether such acts, or others, were criminal. Once the definitional hurdle had been overcome, the Assembly asked the International Law Commission to resume work on drafting the Code of Crimes and the statute for an International Criminal Court. In the meanwhile, many areas of the world became killing fields where millions of innocent and helpless people were victimized by aggression and outrageous crimes against humanity which the international community failed to prevent or punish - to their everlasting shame!
The situation changed dramatically when reliable television reports streaming out of former Yugoslavia around 1992 vividly portrayed starved and beaten prisoners and described mass rapes of thousands of Muslim women by Serbian forces determined to "cleanse" the area for their own national hegemony. The Security Council established a Commission , headed by legal expert Professor M. Cherif Bassiouni from dePaul University, to investigate. He confirmed and documented massive atrocities reminiscent of the Holocaust and Auschwitz. The time had finally come - for the first time since Nuremberg - to reach for the rule of international law to punish shocking international crimes that could no longer be ignored.
The Security Council Acts - New Ad Hoc Tribunals
In response to cries of public outrage - particularly by women everywhere - the somnolent political will of powerful nations was aroused. On 22 February 1993, the Security Council (Res. 808) called upon the Secretary-General of the UN to submit statutes for an International Criminal Tribunal within sixty days. It was done! The statute prepared by the UN Office of Legal Affairs contained 34 articles that spelled out the legal basis and competence of the court, its organization and procedures, the assistance it was to receive from States and similar essentials (S/25704, 3 May 1993). The jurisdiction of the proposed tribunal was limited to serious violations of international humanitarian law (Genocide, Crimes against Humanity, and Grave Breaches of the Geneva Convention of 1949 and customary war crimes) committed in the former Yugoslavia since 1991.
In due course the new criminal court, with its seat in The Hague, was born. It was not an easy birth. There were problems of funding, recruiting prosecutors, judges and defense counsel, training administrators, investigators and translators, overcoming difficult logistical, legal and procedural hurdles and obtaining cooperation from states before any indictments could be drawn, suspects arrested and trials begun. But it was done! The eleven Judges from various regions of the world (including Gabrielle Kirk McDonald of Texas) agreed upon detailed rules for fair trial. Defense lawyers and Prosecutors (led initially by Richard Goldstone of South Africa's Supreme Court and later by Louise Arbour of Canada) earned respect for their competence and dedication. Tribunal decisions, including the appeals, were thoroughly researched and persuasive.
At the outset, the number of cases was very limited but by 1998 there were two convictions (Dusko Tadic sentenced to 20 years) and four trials were in progress simultaneously. Two new courtrooms were being built with donations from Britain, Netherlands and the US By 1998, 79 suspects were publicly indicted and the number actually in custody passed 24 and was increasing. Some accused were surrendering voluntarily. Witness protection programs, especially for women, were in place. The staff grew to over 400 and the UN approved annual budget approached $70 million with 22 states donating over $9 million. A few years after the Tribunal was established, its first President, highly-esteemed Professor Antonio Cassese, was able to report to the UN that the International Criminal Tribunal for the former Yugoslavia (ICTY) was "a vibrant, fully functioning judicial body."
Every newborn child must crawl before it can walk. The new ICTY was not free of problems. Cooperation by states like Serbia, (as well as Croatia and Bosnia) whose nationals were indicted and whose Constitution prohibited their extradition. was less than exemplary. The Court had absolutely no enforcement mechanism of its own and the failure of States to arrest indicted suspects, like former Bosnian Serb political leader Radovan Karadzic and Serbian Army Commander Radko Mladic, charged with massive war crimes and crimes against humanity, diminished respect for both the Security Council and its ad hoc criminal tribunal. It is expected that the hesitation to use UN forces to arrest wanted suspects will be overcome when the political situation is further stabilized and risks are reduced. David Scheffer, special U.S. Ambassador for War Crimes, recently warned: "their day before the Yugoslav Tribunal will come."
In 1994, a brutal ethnic war erupted in Rwanda. A Security Council investigative commission confirmed that perhaps half-a-million Tutsi - men women and children - and their supporters were savagely massacred by being hacked to pieces by machetes or bludgeoned to death by the dominant Hutu tribe. Hundreds of thousands fled in terror to neighboring countries where brutalities fired by vengeance continued in refugee camps until the Tutsi returned to power. The Security Council again responded to public outrage by quickly creating another criminal court to bring mass murderers to justice and help restore peace. The International Criminal Tribunal for Rwanda (ICTR) was established at the end of 1994 (Res.955) and followed the pattern of the ICTY. An international war of aggression was not an issue and only human rights crimes were made punishable. Only a few specified crimes, committed within the defined territory, during the year 1994, could be prosecuted. The statute made explicit that Genocide, war crimes and crimes against humanity would not be tolerated even if the conflict was national and not international.
To save money and personnel , the ICTY and ICTR shared the same Chief Prosecutor and the appellate chambers in the Hague. Because Rwanda was devastated by the civil war, the ICTR was located in Arusha, in Tanzania. Administrative problems were enormous. Over 100,000 Hutus were jammed into local jails and charged by the new Tutsi government with genocide, mass rape or similar atrocities. There were few lawyers or judges left in the country. Tutsi who had seen their families slaughtered demanded that Hutu murderers be put to death. But the Security Council statutes for both ad hoc tribunals - following European human rights conventions - outlawed the death penalty. Lesser criminals might face death imposed by summary national courts in Rwanda while the "big fish" under arrest in the Hague for planning the genocide might escape with only imprisonment. Despite such enormous political and logistical obstacles, progress is slowly being made. The government of Rwanda is determined to overcome the difficulties and strive for reconciliation by seeking peace and justice through the rule of law.
Similar atrocities have continued in many other parts of the world. Ad hoc tribunals to punish perpetrators of massive crimes are surely better than doing nothing or allowing vengeance to run rampant. But a string of special courts created by the Security Council after the event and a la carte to try offenders for a limited number of crimes committed during a limited time in a limited area is hardly the most effective way to establish universal justice. All states now seem to recognize that what is required is a fair and impartial permanent International Criminal Court to condemn major crimes that may at any time threaten the peace and security of human beings everywhere. It is the next logical step in the evolution of international criminal law and the greatest challenge now facing the international legal community.
A Permanent International Criminal Court on the Horizon
The initiative for putting an International Criminal Court (ICC) back on the UN agenda came in 1989 when Prime Minister A.N.R. Robinson of Trinidad and Tobago called for help in curbing international drug-traffickers. The International Law Commission (ILC), 34 legal experts from diverse regions, prodded by the General Assembly, completed its 60-article Draft Statute for an International Criminal Court in 1994. UN committees began to review the ILC proposals. The ILC Draft Code of Offenses against the Peace and Security of Mankind was submitted in 1996. With these stated hurdles overcome, and political tensions between the super-powers abated, the time seemed ripe to move ahead in closing a glaring gap in the international legal order.
Beginning in 1996, a UN "Preparatory Committee" (PrepCom), under the skillful leadership of Adriaan Bos of the Netherlands, held half-a dozen lengthy sessions at the UN trying to cobble together an accord. Secretary-General Kofi Annan (echoing sentiments of his predecessor Boutros-Ghali,) called the ICC "the symbol of our highest hopes for this unity of peace and justice." US President Clinton, declared to the General Assembly at the end of 1997: "Before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law." Everyone seemed agreed that an ICC would be needed and activated only when, and if, national courts were unable or unwilling to put perpetrators on trial. The ICC had to be established by a treaty open to all states, independent and competent to deal only with the most serious international crimes. It also had to be "fair, efficient and effective."
Translating these shared sentiments into a coherent text acceptable to lawyers representing 185 nations with different legal and social systems - and possibly with different degrees of commitment to the goals - was a test of their ingenuity and dedication. Intensive efforts by several Working Groups sought consensus on each article of the proposed statute: how to establish the court; the crimes to be tried by the ICC and precisely how those crimes were to be defined; the principles of criminal law to be applied; the composition and administration of the court; the powers of the Prosecutor to investigate and inaugurate prosecutions; applicable rules of evidence; penalties; procedures for appeal and review; enforcement; and how the entire package was finally to be put into effect. When the PrepCom concluded its work on April 3, 1998, much progress had been made but many differences, indicated by squared brackets around alternative texts, remained unresolved. The PrepCom Report will go to the Diplomatic Conference that will convene in Rome from 15 June to 17 July 1998 which will be challenged to reconcile many divergent views so that nations may move toward an improved world legal order.
(B) Major Points of Concern
1- Selecting and Defining the Crimes to be Dealt with by the ICC
There seemed to be general agreement that the fundamental "core crimes" of genocide, war crimes and crimes against humanity had to be within the court's competence. It was doubtful whether crimes prohibited by specified treaties to curb atrocities, terrorist acts, crimes against UN personnel and drug trafficking should be included since the treaties already contained adequate punishment possibilities. Norway proposed that additional offenses could be added later. "Treaty Crimes" remained as bracketed options. The precise definition of the crimes, except for genocide, needed further discussion.
Most states (including France, Germany, Italy, Egypt, Denmark, a host of small countries, the ILC and many other legal experts,) insisted that aggression had to be included lest the omission of the "supreme crime" be seen as a retrogressive repudiation of Nuremberg and a quiet reversal of the prevailing renunciation of war itself. Some (including the US, UK Russia, China and Pakistan) argued that aggression had not been adequately defined for a criminal statute and that its inclusion would involve the Security Council and thereby destroy the independence of the court. The ILC draft stipulated that no individual could be tried for aggression until the Council first determined that aggression by a State had taken place. Although this affirmation of the Council's responsibility merely reconfirmed the existing duty of the Security Council (as laid down in the UN Charter and other instruments,) it caused considerable concern. Germany, led by Hans-Peter Kaul, pushed for a compromise definition that combined portions of the Nuremberg Charter with extracts from the UN consensus definition of 1974. It was further suggested that a "sweetener" could specifically reaffirm ICC's independence in determining guilt or innocence of any individual suspect.
Defining crimes against humanity (taken from the Nuremberg Charter) raised a few questions, but not nearly as many as elucidating all war crimes. The International Committee of the Red Cross, had been trying to prevent war crimes for over 130 years. It listed about 50 different war crimes and submitted a commentary of 35 pages to explain them. Women's groups in particular pressed to add and define specific "gender crimes" (such as rape, forced prostitution and sterilization) and prohibitions against using children in combat. Many delegates felt that a shorter listing, or incorporating existing Geneva Conventions by reference, might suffice.
2- Procedural Problems
All agreed that every accused person was entitled to a fair trial, to be presumed innocent, protected from double jeopardy and be defended by competent Counsel. But there were varied views about how these undisputed principles could best be expressed. Chair of the Working Group on Procedures, Silvia Fernandez de Guremendi of Argentina, was quite successful in coaxing a consensus on clauses detailing how investigations, prosecutions, trial and appeals were to be conducted. Various formulations were presented regarding rules of evidence, penalties -including restitution, compensation and rehabilitation of victims - and indemnities to persons wrongfully detained. Rolf Fife of Norway headed the Group that defined the obligations of States to cooperate, render judicial assistance and give effect to judgments of the ICC. Consideration was given to relegating all procedural matters to an annex and authorizing the Judges to establish their own rules for the daily functioning of the Court. It was generally agreed that an Assembly of those States that ratified the Convention would supervise the administrative functioning of the ICC.
3- Are Sovereign States Ready to Accept the Rule of Law?
The fundamental question to be decided in the capitals of participating States is whether they are ready to apply criminal law to enforce norms of international behavior designed to curb worldwide violence and to protect universal human rights. Many countries still cling to antiquated notions that (by Divine right) sovereigns (and their first male heir) are above the law and that the organization of independent national states formed at Westphalia 350 years ago is adequate for the electronically interconnected and interdependent world of the 21st century.
Sovereign States should realize that there is no danger in voluntarily accepting certain restraints for the common good. A treaty is not retroactive and binds only those governments that have ratified it in accordance with their constitutional processes. In the United States that means that two-thirds of the Senators must agree. They often add their own reservations, interpretations and and understandings. It took the US 40 years to ratify the Genocide Convention. Nations should not wait for new Holocausts to shake them from their lethargy. If differences are to be overcome, States must finally summon the political courage to accept universal "rules of the road" that bind everyone for the benefit of everyone. The evolutionary process of international law cries out for recognition that the only true sovereigns of the 21st century are "We, the peoples...".
The hesitation of powerful States to surrender what they perceive as entrenched and vital sovereign rights appears throughout the draft statute: whether States could "opt-in or opt-out" of giving the ICC jurisdiction over some of the "core crimes", whether there would be ex officio powers of the Prosecutor to investigate and indict suspects or whether he, or she, would first have seek approval from a pre-trial Chamber or even get advance authorization from the Security Council; or obtain States consent before their nationals or those in their custody could be tried, and whether States could refuse to cooperate or enforce decisions of the ICC.
It was strongly argued that by ratifying the ICC Treaty each State automatically accepts the inherent jurisdiction of the Court with respect to all of the approved core crimes. Since genocide, aggression and crimes against humanity are almost invariably committed by or with the connivance of a State, one can hardly expect a State to try itself. No State can immunize itself and its leaders simply by declaring that it chooses not to be bound by common international law. The French compromise to have the Prosecutor controlled by a supervisory Pre-Trial Chamber should protect against prosecutorial abuse.
The United States argument that no case can be tried by the ICC without prior Security Council permission lest a peace process be disturbed, goes too far. It would give the United states a veto over any action by the ICC - which may be good politics back home but not rationally justifiable. A Singapore compromise would allow the ICC to proceed at its discretion but the Security Council could later request the Prosecutor to suspend action for a limited time if the Council agreed that it was desirable. The powers of the Security Council (with its unfair veto provisions) are prescribed in the UN Charter and - for better or for worse - cannot be increased or diminished without Charter amendment. Insertion of clauses like "as determined by the Security Council" emphasizes Council controls but throws salt into old wounds without altering existing Council powers in any way.
The situation is different regarding the crime of aggression. Exclusive authority to determine whether an act of aggression by a State has occurred is vested in the Security Council by Article 39 of the UN Charter and confirmed in the consensus definition and other UN Declarations. Neither the International Court of Justice nor the Security Council has any authority to try any individual for anything. No person can be successfully prosecuted for aggression by the ICC without a prior Security Council determination that aggression by a State has occurred. Without such a finding, a defendant accused of planning and waging aggressive war could argue that the ICC was usurping and by-passing the Council's UN Charter function and thereby exceeding its own authority. To balance the argument that dependence on the Council destroys the independence of the ICC, it may be noted that ICC Judges have the power to review the Council's conclusion and, if they disagree, release or acquit the defendant. If necessary, a reassuring clause can be added, as suggested, confirming that the ICC retains complete independence in trying any individual for the crime of aggression.
It is understandable that governmental representatives may be very cautious before accepting compromises and a new institution with uncertain consequences. Defense Departments may see things from a different perspective than Foreign Ministries or Ministries of Justice, but the innocent need never fear the rule of law. Transparency, budgetary controls, supervisory Judicial Chambers and Assemblies of the Parties provide reliable assurance against abuse of the judicial process by highly qualified and carefully selected Prosecutors and Judges who must be trusted not to betray their trust.
The evolution of international criminal law is a part of a historical process that took its first steps in Nuremberg, walked forward with the ad hoc tribunals in the Hague and now stands poised for another step in the right direction in Rome. But the long journey does not end in Rome. Many essential components have barely been discussed and may have to be incorporated in later instruments. No accord has yet been reached on the relationship of the Court to the UN and how the ICC is to be funded - whether by the regular UN budget (subject to the whims of the Assembly,) by the States that accept the Court, by voluntary contributions or a combination of all three. The site of the ICC will probably be the Hague but Nuremberg has also offered to host the Tribunal. How many states must sign before the treaty goes into effect is undecided and there is no way of knowing when powerful states will ratify the new treaty. This will all be reported to the General Assembly at the end of 1998 for appropriate action.
Delay can be detrimental and dangerous. The Charter for the IMT at Nuremberg was drawn in six weeks and had only 30 articles Many other perfectly adequate models were drafted years ago by the United Nations and expert organizations. The Statutes for the International Criminal Tribunal for Yugoslavia has only 34 articles and was completed in weeks. The same is true for the Rwanda Tribunal. Appropriate Rules of Procedure for such courts are already in existence and can easily be adapted to meet any new needs of an ICC. It is far more important to focus on the essential substance than to try to anticipate every conceivable problem and seek consensus on every detail. The desire for unanimity and universality is very laudable but it must not be allowed to defeat the enterprise or become a trap in which the lowest common denominator becomes the norm or vague and ambiguous clauses conceal the absence of real agreement.
The Nuremberg Tribunals created a precedent and held forth a promise: "Never Again" would aggression, genocide, crimes against humanity and war crimes be tolerated without punishment of the perpetrators. The world has already waited over half a century for that implied promise to be kept. Millions of innocent people have paid dearly for the inability of statesmen to fulfill the dream. Must the world rely on more Security Council improvisations to bring to justice those who defile the name of humanity? To condemn atrocious crimes yet do nothing to create a permanent court to try the criminals is to mock the victims and encourage more criminality. Young people from all over the world have joined hundreds of non-governmental organizations to campaign for the establishment of a new world institution that can protect the fundamental rights of human beings everywhere under the protective shield of international criminal justice.
It is inconceivable that man can invent technology and implements capable of destroying all living things yet lack the capacity to draft a relatively simple legal statute that may prevent it from happening. Those whom destiny has placed in a position to decide must finally take a chance for peace. Given adequate political will, an ICC can certainly become a reality. It must be done for the sake of a more humane and peaceful world. The legal community is itself on trial and has a unique opportunity to acquit itself nobly. Nuremberg came to grips with the past; Decision- makers in Rome must build on the Nuremberg precedents and come to grips with the future. The time is ripe and the time to act is now!
Benjamin B. Ferencz
J.D. Harvard 1943
A former Nuremberg Prosecutor