Plea of Humanity to Law: Need for an International Criminal Court
Fifty years ago, on 29 September 1947 to be exact, I stood before a tribunal in the courthouse at Nuremberg and accused 22 members of the SS Einsatzgruppen of responsibility for the cold-blooded massacre of more than a million innocent and defenseless men, women and children. The victims - Jews, Gypsies, and others perceived as potential enemies of the Reich - were ruthlessly exterminated. Millions of others were similarly marked for death solely because of their race or faith. As a soldier in the American army participating in the liberation of many concentration camps, I personally witnessed the remnants of indescribable Nazi atrocities. What penalty did the accused criminals deserve? I simply asked the court to affirm, by international criminal law, the right of all human beings to live in peace and dignity regardless of their race or creed. It was "a pleas of humanity to law." I make the same plea today.
I was then 27 years old. In the intervening half-century I was deeply engaged in Germany and elsewhere in trying to help those who had survived what came to be known as The Holocaust. Under U.S. Military Government law, I was designated Director-General of the Jewish Restitution Successor Organization to recover heirless and unclaimed properties confiscated from victims of persecution. The proceeds were earmarked to benefit survivors rather than the German state. In The Hague, in 1952, I helped to negotiate the laws enacted under the leadership of Chancellor Konrad Adenauer to offer some measure of compensation to those who had been illegally imprisoned and permanently injured. I set up offices in many German cities, in Bonn and throughout the world, to assist Nazi victims with their restitution and compensation claims. No one can ever "make good again" the terrible losses they endured but it was an unprecedented historical effort to use the law as an instrumentality for bringing some measure of humanity back to a nation that had been marred by unprecedented inhumanity.
What we were trying to do then, and what we are trying to do today, is to move toward a world order in which all human beings, regardless of their religion, color or political persuasion can live in peace and freedom and enjoy at least the minimum standards needed for human dignity. Sometimes, as we look around us, it is hard not to be discouraged. But if we look at the broader picture in historical perspective, the eager eye can see the line of progress and the heart can take hope that change is possible and that we can make a difference if we try.
Progress And Problems
The Nuremberg trials were not invented out of whole cloth. The major trial before the International Military Tribunal, where U.S. Supreme Court Justice Robert Jackson was the chief architect and Prosecutor for the United States, as well as the twelve subsequent trials at Nuremberg under the direction of Telford Taylor, were based upon legal precedents that had been evolving over a long period of time. The commonly held notion that these were ex-post-facto proceedings is a misperception.
In 1899 and 1907 nations meeting at the so-called Peace Conference in The Hague, agreed upon minimum standards of behavior in wartime. The preamble to the Hague Conventions spoke of bingeing customs arising from "the laws of humanity and the dictates of the public conscience." After World War I, it was recognized that aggression was a crime and "those who have been guilty of offenses against the laws and customs of war or the laws of humanity are liable to criminal prosecution." But since there had never been any tribunal to deal with such offenses in the past, it was concluded that no judicial proceedings should be undertaken against the wrongdoers. The Allied Commission on Responsibility concluded: "It is desirable that for the future penal sanctions should be provided . . ." Unable to agree that a head of state could, under existing law, be punished for "aggression" or what United States Secretary of State Lansing called the vague "laws of humanity," and there being no international court to try the accused, Article 227 of the Treaty of Versailles contained a compromise. The Kaiser was to be handed over and tried "for a supreme offense against international morality and the sanctity of treaties."
Germany signed the treaty in 1919 but one month later denounced it as a Diktat. Holland, where Kaiser Wilhelm had taken refuge, noting the absence of a competent international criminal court, refused to surrender the German leader. A further compromise required the German Supreme Court to try a list of German officers who had violated the laws of war. This too turned out to be a farce. Despite the recommendation of a significant number of distinguished legal experts from many nations, victorious sovereign states were not really willing to establish any independent criminal court at that time. Those who had not learned the lessons of history were doomed to repeat them.
The Covenant of the League of Nations, intended to prevent war, also proved to be inadequate to maintain peace. Japan’s aggression against Manchuria in 1931 went unpunished. When, in 1934, a Croatian terrorist assassinated King Alexander of Yugoslavia and the French Foreign Minister, France demanded an international criminal code and court to punish terrorists. Under League auspices, two conventions were completed by 1936: one for the Prevention and Punishment of Terrorism, the other for An International Criminal Court. Neither went into effect. Not a single state ratified the Convention for the Criminal Court. Would they ever learn?
The history of Italy’s aggression against Ethiopia and Germany’s aggressions against its neighbors needs no repeating. France and England, leading members of the League, failed to enforce their own Covenant. Nor need we recount the atrocities of Hitler’s "total war." On January 13, 1942, nations that had been overrun by Germany convened at St. James Palace in London and issued a Declaration warning that those guilty of the crimes that were being committed would face "punishment through the channel of organized justice." Similar warnings soon came from all the Allied Powers and legal experts began to draft a new convention creating an international criminal court.
Germany surrendered unconditionally in May 1945. The victorious allies were already busy preparing for an international trial. Said Robert Jackson: "It is high time that we act on the juridical principles that aggressive war-making is illegal and criminal . . . so as to make war less attractive to those who have governments and the destinies of people in their power." On August 8, 1945, the Charter for the International Military Tribunal was signed. "We must never forget," said Justice Jackson, "that the record on which we judge these defendants today is the record on which history will judge us tomorrow . . . . We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice." And so it did.
The distinguished jurists on the bench concluded that the Charter was "an expression of international law existing at the time of its creation . . . . To initiate a war of aggression . . . is the supreme international crime." "The law is not static," said the Court, "but by continued adaptation follows the needs of a changing world." The first General Assembly of the United Nations unanimously affirmed the principles of law enunciated in the Charter and Judgment of the Tribunal. The precedents were followed by the Subsequent Proceedings in Nuremberg under Control Council Law number 10 and similar tribunals in Japan and other nations. Even leading German jurists have come to recognize that the Nuremberg trials were essentially fair. Nuremberg was an important beginning in the attempt by the civilized world to curb atrocious international crimes by the rule of law. But what happened after Nuremberg?
Stimulated by the revelation of shocking crimes committed by Nazi Germany, the new United Nations quickly passed a resolution condemning genocide as an international crime and creating committees to draft a code of crimes and rules for an international criminal court. It was a slow, a very slow, process. The desire to proceed by consensus combined with the cold-war tensions between the United States and the Soviet Union made significant progress impossible. The argument was advanced that there was no need for a court until there was a code of crimes and there could be no code of crimes until there was agreement on the definition of aggression. While delegates and diplomats and international lawyers haggled about details, acts of genocide, aggression, war crimes and crimes against humanity were committed in many parts of the world with impunity.
By 1974, as the cold-war was beginning to thaw, it was possible to reach consensus on a definition of aggression. It had its share of deliberate ambiguities but is existence cleared the stated hurdle to further progress on the code and court. In fact, most major powers lacked the political will to make significant chances in the international legal system. States that had power were unwilling to give it up and those who lacked power had no power to make needed changes. The crimes continued unabated.
The collapse of the Soviet Empire and its satellites opened the door to new possibilities for the constructive development of international law. When, in 1991, Yugoslavia fell apart and split into different states, there erupted forms of violence reminiscent of the Nazi era. "Ethnic cleansing" - a filthy practice that has nothing to do with cleansing - was a euphemism used to describe a form of genocide which included murder, torture, mass rapes and Nazi-style concentration camps. The victims, Muslims, Serbs or Croats, were members of the minority ethnic group that was to be forcibly driven from the region because of their race or faith. Television reports of horrendous brutalities shocked the human conscience. Public outrage stimulated the UN Security Council, acting within its peace-keeping authority under Chapter VII of the UN Charter, to move quickly. In a matter of months, the Secretariat of the UN was able to draft statutes for an ad hoc criminal tribunal that was approved by the Security Council and the General Assembly in 1993. It was the first truly international criminal court since Nuremberg and a significant step forward. When Rwanda was racked by similar genocidal ethnic crimes, the Security Council, in 1994, quickly created its second ad hoc tribunal. Despite enormous problems of staffing, financing, and enforcement capabilities, these two new organs of the Security Council were important steps forward in the development of international law and order.
Both the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have only limited jurisdiction to try crimes in the specified territory during a fixed time. As was stated at Nuremberg, if law is to be respected it must apply equally to everyone everywhere. If a permanent international criminal court had already existed, these ad hoc tribunals would not have been necessary. There would be no suggestion that they were politically motivated by outside nations that were not prepared to risk military intervention to halt the atrocities. It may be anticipated that similar crimes will be committed elsewhere. It now seems that all states have finally come to realize that what is urgently needed to close the glaring gap in the international legal order is a permanent international criminal court created under international control to administer justice equally to all. But how can that be done?
The first thing that needs to be done is to make sure that the new ad hoc tribunals succeed in their missions. That requires economic, political and even psychological support. The President of the Tribunals, Prof. Antonio Cassesse of Florence, Italy, is an outstanding international jurist. He should not be made to become a beggar - having to plea with the United Nations to support and back up the agency it created. Should the Security Council fail to enforce the decrees of the Tribunal, including its arrest warrants and subpoenas for documents, it would foul its own nest and undermine the new rule of law it purported to create in the interests of world peace.
I the existing ad hoc tribunals are allowed to fail, the high hopes of Nuremberg will die with them. The world will be condemned to more acts of genocide, aggression and crimes against humanity. Failure to support the ICTY and the ICTR would mock the victims of international crimes and encourage more criminality. These new courts are vital stepping stones to the much-needed and too-long delayed international criminal tribunal.
The International Law Commission, 34 world renowned experts elected by the United Nations, completed its 60-article draft Statute for a Permanent International Criminal Court in 1994. Its draft Code of Crimes was completed in 1996, after many years of debate. These drafts, even if accepted in their present form, would be an enormous improvement over what now exists. It is folly to expect that 185 member states of the UN, with different legal and social systems, can agree upon every detail. It is, of course, appropriate for every nation to be given the opportunity to express its view and to have that view respected. But the drive for consensus should not be allowed to become a trap. It is an invitation for tyranny by the minority. Refusing to advance toward a more rational and humane legal order until there is universal consensus is to condemn the world to stand still. Is this the world you want?
The UN Preparatory Committee, under the very able leadership of Adriaan Bos, Legal Advisor to the Netherlands, is continuing to seek agreement on the many articles of the drafts under consideration. What is most important is that they focus on the fundamentals. Almost all nations agree that, at the outset, the court should have jurisdiction over only a few core crimes. Nuremberg dealt only with Crimes against Peace (aggressive war), War Crimes and Crimes against Humanity. Some states wish to omit aggression since they mistakenly feel that its definition is not precise enough and might allow a biased Security Council to interfere with the independence of the court. These fears are misplaced. To eliminate aggression as an international crime is to cut the heart out of Nuremberg and it would strengthen the war ethic rather than the desired peace ethic of the future. The current German position, which requires the court to ascertain whether aggression by a state has occurred before the tribunal can consider the guilt of any alleged individual perpetrator, is a sensible proposal that is perfectly consistent with the UN Charter. One should not fear the objectivity and competence of independent judges elected with General Assembly approval. Public awareness and UN control of the budget offer adequate safeguards against judicial abuse.
Procedural and enforcement differences will also have to be reconciled. If a state is willing and able to cope with international crimes in a fair and reasonable way - as seems to be the case in Germany and some other nations - there is no need for international intervention. However, aggression, genocide and crimes against humanity are usually committed with the consent or complicity of a national government, hence the primary power of an international court is essential if such international crimes are to be effectively curbed.
The current plan is to adopt the statutes for a permanent international criminal court in the form of a convention or treaty that can be signed in Rome as early as June 1998. But, as has been noted, signing a treaty at a diplomatic conference does not mean it becomes law. Treaties must be ratified and only bind consenting states. Should the treaty route falter - one must consider the alternative possibility of using the existing precedents and relying on the Security Council to create the necessary organ in the interests of world peace. The Council, by calling upon states to "use all necessary means" was able to repel Iraq’s aggression against Kuwait and set up a host of controls to prevent recurrence. Unfortunately, there was no tribunal to put the aggressor on trial. By setting up the ad hoc tribunals for Yugoslavia and Rwanda, the Council demonstrated its capacity to create new judicial organs that can help restore peace with justice. Where there is a political will there is a way.
The people of the world must make up their minds about the kind of world they want. If they like what they have, they need do nothing - but pray that they don’t become the next victims. If they don’t like the injustices and inhumanities that exist in the world today, they must have the courage to act on their convictions. They must let the world’s decision-makers in all countries know, by every lawful means, that the current inhumane practices will no longer be tolerated - that those who violate the international laws of humanity will have to stand before a court of law to answer for their deeds.
These were the hopes of Nuremberg. I had those hopes 50 years ago. I am now 77 years old. As I see the progress that is being made, and the awakening of the human conscience since I gathered evidence in the hell of the concentration camps in Germany half a century ago, my hopes remain alive. Germany has a special and important role to play in creating a more humane and peaceful world. It can be done. Never give up! Never give up! Never give up!
Benjamin B. Ferencz
April 23, 1999