Needed: A World Criminal Court

June 29, 1998

Nations from all over the world are meeting in Rome to form a new legal institution. They are trying to establish a permanent International Criminal Court (ICC) to deter crimes that threaten peace and security. The conference of top diplomats will conclude on July 17, 1998, ending five years of intensive effort.

The Fate Of Humankind May Be Affected By The Outcome

The goal is not new. Over fifty years ago, the International Military Tribunal at Nuremberg - building on precedents that went back to the first World War - proclaimed that aggression, crimes against humanity and war crimes were punishable offenses for which responsible leaders would be held to account in a court of law. The United Nations unanimously agreed. There was an implied promise that genocide and massive violations of human rights would "Never Again" be tolerated. Yet, no permanent criminal court was ever created to carry out that pledge. It is appropriate to ask: why not, why now and will it really happen?

Why Has It Taken So Long?

Soon after the United Nations was formed, committees were appointed to draft a Code of Crimes Against the Peace and Security of Mankind and prepare for an International Criminal Court. The Genocide Convention was adopted by the United Nations in 1948 but provisions for an ICC were deleted. A similar fate befell ICC texts in 1951 and 1953. Weak excuses - such as the inability to define aggression - were invented to justify inaction. Everyone knew that an international penal court was both desirable and feasible but the political will to accept international restraints on national behavior was lacking.

Aggression (defined by consensus in 1974), genocide, crimes against humanity and grave breaches of the rules of war (meticulously detailed by the International Committee of the Red Cross) continued unabated - in Korea, Vietnam, Cambodia, Iran, Iraq, and many other parts of the world. The lessons of Nuremberg seemed to have been forgotten. Perpetrators of horrendous crimes remained free, victims remained without redress and atrocities against countless numbers of innocent people were unrestrained - to the everlasting shame of the world community.

Professor Paul Guggenheim of Geneva correctly described "the dogma of sovereignty" as the main instrument of nationalism and imperialism that was blocking the necessary evolution of international law. As long as the powerful Soviet Union and the United States - and their allies - were engaged in a "cold-war" of conflicting ideologies, it was politically impossible to reach agreement on any major reforms of the existing international disorder. Mistrustful adversaries preferred to rely on the law of force rather than the force of law.

What Brought About A Change?

When, around 1987, Soviet leader Mikhail Gorbachev, ushered in a new wave of thinking, international tensions that had existed since the end of World War II began to recede. Heads of many nations began to speak of a "new world order." The end of the "cold war" made possible what had not been possible before. But it would take more than relaxation of political tensions to create an ICC.

The breakup of the Soviet Union and its satellites ignited new demands for national independence. When parts of former Yugoslavia declared their sovereignty in 1991, they sought to unify and expand their territories by brutal force - including mass rapes of thousands of women, murder, torture and incarceration reminiscent of Nazi genocide. The atrocities, confirmed by UN Commissions, were vividly portrayed on worldwide television. The communications revolution became an effective trumpet to arouse the public everywhere.

Outraged by the failure of the international community to prevent the atrocities committed in Yugoslavia, human rights advocates demanded that perpetrators be put on trial. There could be no peace without justice. Pressured by public opinion, the Security Council was able to move quickly. In 1993, it took only a few weeks to lay the foundation for the creation of the International Criminal Tribunal for Yugoslavia. The new tribunal, with its seat in the Hague, was the first international criminal court since Nuremberg. A similar tribunal was quickly created by the Security Council in 1994 after brutal civil war erupted in Rwanda and half-a-million people were butchered in genocidal tribal violence. The rule of law became an instrumentality to tamp down the fires of uncontrolled vengeance.

Establishing two new ad hoc criminal tribunals was no simple or easy matter. There were enormous problems: funding, staffing, training personnel and overcoming a host of unforeseen legal and logistical difficulties. Cooperation from some states was less than exemplary - allowing "big fish" to evade arrest. Nevertheless, both tribunals, through the diligence and integrity of their judges and prosecutors, earned worldwide respect. They demonstrated that - once the political will was aroused - it was possible to create fully functional and fair international criminal courts to bring major offenders before the bar of international justice.

The special courts to cope with crimes in Yugoslavia and Rwanda were important stepping stones after Nuremberg, but they did not go far enough. Temporary tribunals, created by the Security Council after the crimes are committed, and dealing only with limited offenses in a restricted area during a brief period are surely better than the alternative of doing nothing or allowing uncontrolled vigilantes to run rampant. But a string of belated ad hoc courts is hardly the most effective way to prevent crimes or ensure universal justice.

Nuremberg, never intended to be merely "victor's vengeance". U.S. Chief Prosecutor, Robert M. Jackson, proclaimed: "The law by which we judge these defendants today is the law by which history will judge us tomorrow." Nuremberg made clear that law must apply equally to everyone. The Diplomatic Conference now being held in the Italian capital will test whether nations are now ready to accept universal standards of morality and law designed to protect the peace and security of human beings everywhere. The international community is itself on trial in Rome.

Will It Really Happen?

The leaders of each nation must answer a fundamental question: What kind of a world do they really want? Some powerful and prosperous states, whose nationals are not the immediate victims of wars, killings, crimes against humanity, poverty, fear and other ills that plague this planet, may not be eager for change. They would do well to ponder the risks of inaction. Today we live in an interdependent world where no nation and no people can be secure until all are secure.

All states now agree that a permanent ICC is needed - but it must be "fair, efficient and effective". How to create such an institution - without restricting the vital political and security interests of the parties - is the problem. Reconciling the many differences will require great determination and great statesmanship.

Adherence to ancient concepts of state sovereignty permeate the negotiating process. Ever since Nuremberg, it has been indisputable that aggressive war - "the supreme international crime" - is a criminal act and not a national right. Yet, so far, there is no agreement that aggression - the root of the worst human rights violations - will be subject to the jurisdiction of the ICC. Although genocide, crimes against humanity and war crimes will be included, precisely what is covered by these "core crimes" is still being disputed. Some delegates insist that the prosecutor should have very restricted powers and require prior consent from different states or the Security Council before starting any investigation. Military branches of powerful governments are clearly reluctant to subject their acts to international legal scrutiny.

Compromise is vital. Some Decision-makers fail to realize that the organization of states designed in Westphalia in 1648 (based upon medieval notions of Divine Right of Kings and their first male heirs) may not be adequate for the cyberspace world of the 21st century. All nations must be willing to accept rules of the road that bind everyone and benefit everyone. The true sovereigns of today are the people themselves and they deserve to be protected under the mantle of enforceable international law.

There is no valid reason for any law-abiding or powerful state to fear the outcome of the Rome Conference. Lacking any independent enforcement mechanism or funding, the ICC will remain dependent upon major powers for its success - despite the judicial independence of qualified judges and prosecutors. The international court will only be authorized to act when, and if, national jurisdictions are unable or unwilling to give the accused a fair trial. What is being negotiated is a treaty, and treaties bind only those who ratify it- often subject to special "understandings". No treaty can bind the United States, for example, without the consent of two-thirds of the Senate.

No criminal statute can diminish, or increase, the vested rights of the Security Council under the UN Charter. Whether the United States will back down from its insistence upon effective controls over all prosecutions by the Council, whether China will be ready to yield some of its sovereignty, whether India will be flexible in its demand for complete equality, whether Pakistan will be more accommodating, and whether bickering over non-essentials will be replaced by constructive compromise remains to be seen.

No doubt, significant progress will be made in Rome toward a more humane world order under law. Norms will have been clarified, divergent positions of states articulated, and agreement reached on many fundamental positions. States will sign a Final Act summarizing their diligent efforts and it will be left to the General Assembly to decide what happens next. Hopefully, Decision-makers in Rome will care enough and dare enough to build on the Nuremberg precedents and take another important step forward on behalf of humankind.

Benjamin B. Ferencz