Appearance on The National, Canadian Broadcasting Corporation Television

Ferencz Appearance on The National: CBC TV
Copyright 2001 Canadian Broadcasting Corporation
June 26, 2001, Tuesday
LENGTH: 2288 words
HEADLINE: International Criminal Court

PETER MANSBRIDGE: First there was Nuremberg and then there was The Hague. And now the world is trying to create an international criminal court to prosecute those accused of crimes against humanity. It's a court from which no one would be immune. Even leaders of sovereign states. The idea has already been ratified by 35 countries, including Canada, but one country is noticeably not on board. In fact, the United States is trying to stop it. Tonight, a documentary report by Carol Off.

CAROL OFF: They've been leaders of countries and their armies. They've also been accused of violations against their own people. They are heads of sovereign nations. But their actions are now considered indictable crimes.

BEN FERENCZ: Those who commit crimes against humanity such as genocide and other major crimes will not get away with it anymore.

OFF: But what if the net tries to catch Americans?

MARK THIESSEN: The nations that have formed this court have basically launched a judicial war on the United States.

OFF: The international criminal court has been the dream of human rights activists since the Second World War. If such a court existed, they argued, no one, no matter how rich or powerful, no matter what country they came from or position they held, no one would be immune from prosecution. No one would be free to commit crimes against humanity. But there's always one principle that stood in their way of such a court, that is sovereignty. Nation states have argued that they are the bosses within their own borders, free to act in their own national self-interest.

FERENCZ: The notion of state sovereignty is a medieval notion which had its place in human history when society was organized into thousands of little fiefdoms all going around killing each other.

OFF: Ben Ferencz is more intimately involved in the issue of war crimes than possibly anyone else.

FERENCZ: The charges we have brought accuse the defendants of having committed crimes against humanity.

OFF: Ferencz was the youngest prosecutor on the American team during the Nuremberg trials. At the age of 27, he faced down 22 members of Hitler's third right. All but three were found guilty.

FERENCZ: It is therefore wholly fitting for this court to hear these charges of international crimes and to adjudge them in the name of civilization.

UNIDENTIFIED MAN (1): Included among the executed...

OFF: It was the first time in history there was a successful international war crimes tribunal, though it was called victors justice since those who'd won the war had full freedom to prosecute those who'd lost. Ferencz has argued in favor of a permanent international court ever since. One that would be applied equally to all nations.

FERENCZ: It was our hope that we could create a more peaceful world. The United Nations would bring nations together and the Nuremberg tribunals would set new standards of law which would outlaw war making itself, which was a supreme international crime and would prohibit crimes against humanity and require people to be tried if they committed genocide or other atrocious acts. That was our hope. And it set the precedent. Unfortunately the intervention of the Cold War was a major impediment to States from accepting that and it's only in recent years that it has begun to go forward from Nuremberg.

OFF: Bloody armed conflict in the former Yugoslavia was one of the first reactions to the end of the Cold War. Campaigns of ethnic cleansing and mass deportation proved that little had changed since Nuremberg. A genocide in Rwanda in 1994, 800,000 people murdered in just 100 days. Such brutality was becoming a hallmark of the post-Cold War era. In response, the United Nations established the first war crimes tribunal since the Second World War. A Canadian became chief prosecutor. Louise Arbour's job was to indict those responsible for the crimes against civilians in both Yugoslavia and Rwanda.

LOUISE ARBOUR (1997): There's no going back. It has to move forward. Otherwise we literally would've been better off never rekindling the Nuremberg dream of having justice contribute to peace. Good morning, Your Honour. I'm the prosecutor. My name is Louise Arbour and appearing with me is...

OFF: The ad hoc tribunals for Rwanda and Yugoslavia seemed like a victory over human rights abuse. But the tribunals begged the question. Why was the world prosecuting just people from Yugoslavia and Rwanda when there were so many other atrocities left unpunished.

PHILLIP KIRSCH: There has been enormous change in the past decade in the way States look at those things. You know, Cambodia, no one did anything. Uganda, no one did anything. Yugoslavia, there was action. Rwanda, there was action.

OFF: Phillip Kirsch is a Canadian diplomat. He's also the chairman of the commission that's planning the new court. He believes that some conflicts get war crimes tribunals and others don't because the powerful UN Security Council picks and chooses according to its member’s political interest.

KIRSCH: The two most obvious cases are those of Cambodia and of Uganda, a couple of decades ago. Nothing was done at the time because the security council was not prepared because of the Cold War, to intervene in situations like that and therefore what has happened is the creation of a bit of cultural impunity except in the few cases where the security council feels politically able to act.

OFF: These people are determined to change that system. Three years ago this month, delegates and diplomats broke into thunderous applause when they established the ground work for the permanent international criminal court, a court that would be independent of the security council or any other political body. An astonishing 120 countries accepted the court in principal. The chairman of the Rome conference, Phillip Kirsch saw it as a new era in human rights. Kirsch and Canada play a key role in developing the rules for the new court.

KIRSCH: The international criminal court is an extraordinary important historical development that it has been said by many, many people and is considered by many States as the most important international instrument since the United Nations charter.

THIESSEN: With all due respect to Chairman Kirsch, who I know very well from, from Rome and from all the preparatory commission meetings, he's simply wrong.

OFF: Mark Thiessen was the spokesman for the Senate Foreign Relations Committee of the United States. He represents the fierce U.S. opposition to the international criminal court.

THIESSEN: What was done in Rome is that power was taken out of the hands of the Security Council and it was put in the hands of an independent prosecutor who doesn't have to go, who has no checks on his power. So any states that's a party to this treaty can bring a case to the prosecutor and simply say we think the United States has committed war crimes.

OFF: A number of countries have refused to endorse the treaty for the new criminal court or they would still be subject to its jurisdiction, whether they sign or not. But without the U.S. support, without its money and its military muscle. Many people don't believe the court can function. The United States signed the treaty in principle only as Bill Clinton left office. It was never ratified. The Bush administration is making it very clear what it thinks of the new court.

THIESSEN: The American people are the only ones who have the sovereign authority to decide whether or not we will join the international criminal court. And the countries of the world ganged up on the United States in Rome and said we're going to put you under this whether you want to be under it or not. I consider that a front, an affront.

OFF: This is how the new international criminal court would work. All countries in the world would have the right to prosecute their own citizens should they be accused of any crimes. But if they won't, or they can't do it adequately, then the individual would have to face the new court. The United States says this is fine as long as it has a final veto on all cases. A veto like the one the U.S. has at the security council of the United Nations.

THIESSEN: The countries of the world laughed when the United States proposed this. They were, when the, when the U.S. effort to do this in Rome was defeated, there was a standing ovation among the, a sustained applause among the countries who had defeated the resolution because they don't want the United States to have the ability to veto cases.

CHRISTOPHER HITCHENS: The United States can't remain the grand international moral tutor lecturer and abstain from this court on the grounds that it might one day have to try an American.

OFF: Christopher Hitchens is one of America's leading journalists on human rights issues. He's just published a new book, The Trial of Henry Kissinger. In it her argues that President Richard Nixon's chief foreign advisor is actually a war criminal. The book says Kissinger is implicated in every human rights atrocity from Vietnam to Chile.

HITCHENS: All of the people who Henry Kissinger partners in power in the practice of power while he was Secretary of State and National Security Advisor. Generals Papadopoulos in Greece, General Pinochet in Chile, General Suharto in Indonesia. Do you see where I'm going with this? All in jail or facing it in their own countries. Again, the one conspicuous non-indicted person. How is the United States to live with this? Either for the sake of its own democracy or for the sake of other people's. It's too much. It's too much of a contradiction.

OFF: What does this say about issues of sovereignty and this, and if we are in a new era of human rights where the Pinochet's and Milosevic's, even the Kissinger's can't get away with this anymore without someone questioning at least, what does this say about national sovereignty?

HITCHENS: No country claims that its own sovereignty can override the findings of Nuremberg. It's been rather more pointful though by the arrest of Mr. Pinochet, by the warrant for Mr. Milosevic, and by a number of other cases recently as well.

OFF: When NATO jets bombed Yugoslavia in the spring of 1999, the world got the first taste of how much the notion of sovereignty had changed for everyone. During the campaign, NATO claims hit several civilian targets, most notably a passenger train and the Chinese Embassy in Belgrade.

UNIDENTIFIED MAN (2): Okay, let's run it.

OFF: Yugoslavia demanded justice and a number of human rights groups wanted the Hague tribunal to investigate NATO for war crimes.

UNIDENTIFIED MAN (3): And it was an unfortunate incident.

OFF: The court ultimately decided not to prosecute, declaring the acts were not war crimes. But it was the first indication that the U.S. could be indicted for doing what it considers is its right to do. And that got some powerful Americans very angry.

JESSE HELMS: I don't think...

OFF: U.S. Senator Jesse Helms introduced legislation called the American Service Members Protection Act. It prohibits any U.S. cooperation with the new court. The bill is now in the Senate. Congress is playing hard ball, claiming that the court will be used not for justice, but as a political tool directed against America and its soldiers.

THIESSEN: The United States is the one country in the world that is projecting its power around the world for the cause of freedom. It would be, whenever there's a crisis in the world, a humanitarian intervention of some kind that needs to be done, a war that needs to be fought like the Gulf War, intervention like the one in Kosovo. It's always, it's always the United States that has to take the lead to do this. And there are a lot of people who resent the power of the United States. A lot of enemies of freedom around the world who resent our power and our projection of it and want to constrain it. And they will use the international criminal court as a tool for politicized prosecutions.

HITCHENS: When American conservatives argue that a war crimes tribunal would impede the orderly functioning of our foreign policy, it's proper to ask what kind of foreign policy they have in mind or think they are running or have been running. And that might, that shoe might pinch a little tighter than some would like.

UNIDENTIFIED MAN (4): I declare open...

OFF: Those are putting the court together say it will go ahead no matter what the United States decides to do. They hope America will be isolated and then shamed into taking its rightful part as it sees its friends and allies support the new court.

KIRSCH: It's a tidal wave of support. Almost every day in late 2001, States that were initially opposed to the court came on board. So it's work in progress. I don't think failure is a possibility.

HITCHENS: I believe that in the last two to three years, I dated myself from the arrest of Augusto Pinochet in London, we're within sight of one of the oldest dreams that humanity has ever evolved and has never lost in spite of innumerable cynicisms which is one day the law will apply in search of the great, to the mighty, will apply to the people who make the laws, will have to be judged by them as well. And I think now would be the perfect time for a demonstration case and to see if our nets so expensively woven will actually hold a big fish or not.

OFF: For The National, I'm Carol Off.

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