Final Chapter: International Law As We Enter the 21st Century
Peace And Justice As We Enter A New Millennium
A thousand years have passed and a world of peace and justice for all remains an ancient aspiration yet to be fulfilled. A more humane world needs new thinking, new directions and new institutions. Nations resist yielding privilege or power and individuals cling to entrenched dogmas. Progress takes time and even imperfect compromise always has a price; there can be no instant evolution and no painless revolution. There are countless hurdles to be overcome; here we can highlight only a few. By challenging what seems unchallengeable and changing what now seems unchangeable, a more compassionate world is surely attainable. We have it in our power to make what seemed impossible in the past inevitable in the future.
Sovereignty and Self-Determination
One of the arguments frequently heard to justify rejection of new international controls is: "It will detract from our national sovereignty." Of course, there is nothing wrong with patriotism or pride in one's country and a desire to be independent. A closer examination will reveal, however, that parochial nationalistic arguments are not constructive. Rejecting needed changes as an unacceptable intrusion on sovereignty ignores the needs and realities of contemporary life.
The medieval notion that by Divine right the Sovereign is above the law was demolished by Magna Charta in 1215. The American Declaration of Independence in 1776 proclaimed that "governments derive their powers from the consent of the governed." Germany's great philosopher Immanuel Kant argued that the sovereign had to be subordinate to laws that would guarantee freedom for everyone. The Universal Declaration of Human Rights affirmed the will of the people as the basis for governmental authority. Nuremberg war crimes trials established that even a Head of State would be criminally liable for crimes against humanity. Modern Germany and Japan enacted constitutions yielding vital sovereign rights of defense to the international community. As the world grew increasingly linked by expanded transportation, trade and communication, national autonomy proved inefficient. Giant corporations became global and nations formed regional communities to augment the sovereign state as the unit of governance. Thousands of treaties were signed restricting sovereignty in order to enhance the welfare of citizens in many lands.
A leading Catholic theologian, J. Bryan Hehir, now Dean of the Harvard Divinity School, recently concluded that the nation state, unable to protect its own citizens and to respond adequately to economic, environmental or political challenges, was no longer a viable political entity. Professor Louis Henkin of Columbia Law School, when President of the American Society of International Law, wrote that it was "time to bring sovereignty down to earth." Professor Michael Reisman of Yale described the notion of sovereignty in the traditional sense as an “anachronism”. Absolute state sovereignty today would produce absolute world chaos. As we enter the new millennium it should be recognized that accepting certain restraints on national power may be necessary if governments are to serve the true sovereign - the people themselves.
Another concept that needs reevaluation relates to attachment to the land itself. Seizure of territories by conquest has been condemned in many legal declarations that say the fruits of conquest will never be recognized. But such declarations, of principle are more honored in the breach than in the observance. The map of the planet would be unrecognizable if national boundaries had to be reconstructed along biblical borders. One must consider whether the use of force to reclaim territories is likely to benefit or injure the inhabitants. If peace and justice are to prevail, peaceful and lawful means must be found to satisfy legitimate grievances without causing more harm than good.
Closely related to assertions of national sovereignty and love of the land is the demand for self-determination. Almost all countries have many religious, cultural, political or ethnic minorities who feel that they are discriminated against. The reshuffling of national borders for the economic or political advantage of imperialist powers is certainly to be condemned and the United Nations program to obtain independence for colonial peoples has been singularly successful. Granting self-determination as a means of establishing peace among rival groups often proved counter-effective. The price of violent reconstruction of ancient homelands was paid, and continues to be paid, by countless innocent victims dispossessed or massacred in many parts of the world. There is nothing clean about what is today euphemistically termed "ethnic cleansing." Driving people out of their homes under threat of genocidal slaughter simply because they do not share the race, religion or political persuasion of their tormentors is a crime against humanity that must be stopped.
Many ethnic and other minority groups who feel—rightly or wrongly—that they are disadvantaged or threatened, assert a right to self-determination as "enshrined" in the UN Charter. They are entitled to make their argument in every suitable forum and to seek support for their justified claims to be free of persecution and abuse. But the demand for self-determination or nationhood cannot be accepted where it is a subterfuge for racial or religious discrimination or a ploy for political power. To be consistent with the Charter, the remedy must be sought by legal methods. If, in desperation, frustrated groups claim the right to use brutal means, and to receive any assistance from any source, to attain the desired objective, there can be neither peace nor justice. Nations all over the world would remain in constant agitation by acts the perpetrators hail as heroism but the victims condemn as terrorism. The legitimacy of the objective is undercut by the illegitimacy of inhuman means used to attain it. Solutions that only harm those we seek to help do not solve anything.
People long for independence and self-fulfillment but ancient hatreds are not worth preserving. New thinking requires tolerance and flexibility that allows diverse cultures and religions to flourish together in integrated harmony and peaceful coexistence that respects cherished sentiments and disparate traditions within a framework of relative autonomy. Changes in entrenched attitudes cannot be quickly or easily achieved and practical solutions will require detailed and difficult negotiations. To extremists, no solution other than their own may be acceptable. The useless loss of many innocent lives is a frequent consequence of fervent obduracy. All we can do to ameliorate senseless suffering is try, as best we can, to apply the rule of reason and the rule of law as laid down in the UN Charter which repeatedly makes plain that only peaceful means are lawful. In the last analysis the heart of self-determination is respect for the human heart. Human beings must be human.
An outgrowth of the concept of sovereignty is the corollary that nations may not interfere in the internal affairs of other countries; independent states should be free to foster the well-being of their citizens as they see fit This was the prevailing doctrine for centuries, despite vague diplomatic references to "dictates of the public conscience" and "the laws of humanity." But what happens today when governments mistreat their own people for racial, political, economic or other sordid reasons? United Nations prohibitions against interference in domestic affairs were never intended as a license for nations to abuse or murder anyone. The Charter calls for human rights and fundamental freedoms for all. There is no law that says the world must tolerate the intolerable.
The emergence of new states was frequently accompanied by the eruption of factional fighting. It became apparent that what happened within a state could be just as perilous to world tranquility as what happened between sovereign nations. Violent internal conflicts among groups fighting for power could spill over into neighboring lands and threaten world peace. But the UN lacked independent military forces capable of preventing or containing such conflagrations. A rigid view of non-interference would be morally untenable and could imperil peace rather than preserve it. Self-appointed interveners noted the danger of "falling dominos" to justify military intervention as self-defense. The Nuremberg Principles in outlawing genocide and crimes against humanity held that the international community had the legal right, and the implied duty, to halt extreme human rights violations. Tyrants were on notice that they could be held personally accountable in a court of law. State's rights had to be subordinated to human rights. Peace-loving nations faced a serious dilemma.
The UN Charter prescribes that using armed force, other than in self-defense against an armed attack, is only lawful if approved by the Security Council acting to maintain peace. Experience showed that Council decisions are influenced by political considerations and the veto power of the privileged five founding members may be used to paralyze intervention. As long as there is no lawful international mechanism capable of protecting victims of atrocities, it is inevitable that some states will choose to by-pass the Council and claim a moral high-ground by trying to rescue the oppressed - even without clear legal authority. On the other hand, powerful states may use the pretext of humanitarian intervention selectively to further their own economic or political interests. Aggression may not be disguised as humanitarianism. To allow nations, unilaterally or with military allies, to decide on their own when and how force may be used against a presumed lawbreaker would undermine the United Nations and Charter law. Human rights must prevail over human wrongs and international law must also prevail over international crimes. No individual and no nation should be allowed to take the law into its own hands.
The crucial question: "If the Security Council declines to act, and may not be by-passed, what other peace-enforcement process takes its place - or must innocent victims be allowed to perish?" International law regarding the permissible limits of unilateral intervention is still evolving. Clearer guidelines are needed. It should not be too difficult to reach agreement on what is permissible and impermissible. A nation that tries unsuccessfully to arouse the world community and the Security Council to intervene to stop outrageous atrocities and, as a last resort, sends in its own troops temporarily with the sole purpose of halting the crimes, may be acting morally even though it lacks clear legal authorization. Morality and law should be made consistent. It is a very dangerous precedent to allow any nation to appoint itself the policeman of the world. As we enter the new millennium, the criteria to be applied in determining whether military intervention is noble or criminal must be laid down in advance if global peace and justice are to be preserved.
The Evolution of International Criminal Law
Human history has been a chronicle of countless wars depicted as heroic and glorious. Opponents of war have been castigated as naive, cowardly or traitorous. Ecclesiastical admonitions about "just wars" and "proportionality" sought to regulate how wars should be fought. As man's killing capacity and the cost thereof increased, multi-national conferences like those in the Hague in 1899 and 1907 tried to define and set limits to what was permissible in combat. War was awful but it was lawful. It was only after at least ten million people were senselessly slain in World War I, that more serious thought was given to using law to curb man's homicidal tendency to kill or be killed for his country.
League of Nations efforts to deter wars by holding the German Kaiser criminally responsible for Germany's aggression came to naught. A Head of State had never before been tried for that crime so only a warning was issued that things might be different in future. The League's Covenant confirmed that war was permissible if due notice was given before killings began. If the rule was violated, hostilities would be forced to a halt by comprehensive sanctions against the aggressor. How the aggressor would be identified was not made clear and before the "economic weapon" could be fired all nations would have to agree This meant that every member had a veto power. It should have been expected that the plan wouldn't work. And it didn't. Powerful states, for their own political reasons, were unwilling to risk war to save the skins of other members. Failing to implement their own plan for collective security, nations faced collective insecurity followed by the Second World War and another 40 million innocent people slaughtered.
The United Nations Charter sought to eliminate shortcomings of the League's Covenant. In the name of "WE, THE PEOPLES," determined "to save succeeding generations from the scourge of war," (the word "war" appears nowhere else) all Members are required to refrain from the "threat or use of force" - inconsistent with Charter purposes. Many of the purposes are contradictory. Only the Security Council can determine the existence of aggression and authorize measures to repel it. Self-defense against an armed attack is permissible but "aggression" and "self-defense" were not defined. The Military Staff Committee that was supposed to organize an international military force was straddled with conditions that would allow it to remain moribund. The Council is dominated by five "Permanent Members," any one of which can veto any enforcement action. It might have been anticipated that unless the five founders were in complete accord, the UN would be paralyzed and future wars of aggression would be cloaked as "self-defense." Given its "Mission Impossible," it is remarkable that the UN was able to accomplish as much as it did. The needed controls did not go far enough and the world was to pay dearly for the timidity of its leaders.
The greatest step forward in promoting the law of peace took place in Nuremberg after World War II. The International Military Tribunal (IMT) Charter listed only three categories of crimes that would come within the Court's jurisdiction. The first was "Crimes Against Peace : namely, planning, preparation, initiation or waging of a war of aggression..." After detailed study, the Court's judgment concluded that aggression was not merely a crime under prevailing law but was in fact "the supreme international crime." IMT precedents became the basis for a dozen subsequent war crimes trials in Nuremberg as well as prosecutions in Japan and elsewhere. History has confirmed that the Nuremberg trials were fair and based on existing law. It was a cardinal principle, repeatedly articulated by American Prosecutors in particular, that the law enunciated at Nuremberg was to apply equally to everyone. War was to be made less attractive to those who held the destiny of peoples in their power. The law had taken a step forward that was long overdue. Nuremberg's greatest achievement was to confirm that war-making was not a national right but an international crime.
The Nuremberg Principles were affirmed by the UN in 1946 and UN Committees began to draft a code based on those principles and to prepare for an international criminal court to try violators. Ideological rivals were so busy committing aggression that they had little inclination to define or curb the crime. Requiring complete concurrence by all parties is surely a worthwhile aspiration but it gives every participant a veto. The" tyranny of a minority" may compel acceptance of terminology so exquisitely ambiguous as to allow nations to interpret it to their own advantage. That's exactly what happened in 1974 when a rather vague definition was finally reached by consensus. In effect, it left the final decision up to the Security Council that had been vested with that responsibility by the UN Charter. But neither the Council nor the old International Court of Justice (with jurisdiction only over consenting states) had any authority to try individuals in a criminal proceeding. There was thus a gap in the existing international law; without a new criminal court individual perpetrators responsible for "the supreme crime" could get away with murder.
While UN committees resumed plodding deliberations aimed at creating the needed tribunal, intervening events proved that rapid progress toward that goal was possible - once the political will was aroused. In the wake of the dissolution of former Yugoslavia, starting around 1991, massive crimes against humanity were perpetrated by rival nationalistic ad ethnic groups. The Security Council - in a matter of weeks - created the ad hoc International Criminal Tribunal for Yugoslavia. A similar ad hoc court was created quickly to deal with genocide that erupted in Rwanda in 1994. Nations, after suffering humiliating military defeats trying to suppress such crimes, were no longer willing to risk their own troops by intervening to prevent atrocities. But indignant outcries from around the world, prompted by graphic television reports of mass rapes and genocide, produced the speedy Security Council response. Nations turned to law instead of war. Despite normal start-up problems, and the deplorable failure of some states to assist in the arrest of indicted suspects, these new tribunals are busy setting valuable precedents for the further development of international criminal law.
In 1996, the International Law Commission, composed of 34 "independent experts," completed work on the draft Code of Crimes that had first been ordered by the UN in 1946. It described aggression as a "customary law crime" that created a "peremptory norm" - irrevocably binding on all states. The experts felt that Nuremberg's sketchy definition should not be repudiated and it could be left to later practice to set more precise contours to the crime. When a new UN Preparatory Committee took over the project of creating a new international tribunal, not all states were ready to accept a criminal statute that seemed imprecise - particularly if they had not participated in the earlier deliberations. Many, resenting the privileged position of the Permanent Members, insisted that any new criminal court had to be completely independent of the Security Council. Others did not seem to realize that no criminal statute could discard accepted international legal norms or disregard universally binding UN Charter provisions. Despite generally supportive speeches, there remained a lingering doubt whether powerful nations were really ready to relinquish their right to kill their neighbors.
A Permanent International Criminal Court
After years of preparatory work, Plenipotentiaries assembled in Rome to seek agreement on the long-awaited criminal tribunal. The number of differences remained enormous. Some major international crimes such as terrorism and narcotics trafficking had to be set aside for possible later consideration. Following five hectic weeks, on 17 July 1998, nations voted overwhelmingly ( 120 to 7 with 21 abstentions) to adopt the "Rome Statute" declaring in its opening paragraph that an International Criminal Court (ICC) "is hereby established." Chairman Philippe Kirsch of Canada spoke of "humankind's finest hour". UN Secretary-General Annan hailed it as "a gift of hope to future generations". It was indeed a historic occasion. In the euphoria of the moment, it was hardly noticed that the ICC could not become operational until many other conditions were met.
A treaty incorporating the Rome statute could only go into effect after 60 nations had formally ratified it without reservations. Before ratifying, some nations would have to enact new laws or modify their Constitutions. Agreements had still to be reached on many operational "details" such as rules of procedure and how the ICC was to be financed. Amendments could only be considered 7 years after the ICC began functioning. When all that could be accomplished was still uncertain. Optimists estimated that it would take a few year before the ICC could hear its first case. In the meanwhile, since the Statute was not retroactive, presumably national leaders could remain immune from prosecution and massive international crimes could continue to be committed with impunity.
It was inevitable that, once the dust had settled, not everyone would be completely satisfied with the final outcome. In the last frantic hours at Rome, the harried delegates were able to agree that aggression should be included as a crime within the limited "core jurisdiction" of the Court, but before the ICC could act on that crime, certain other conditions had to be met. Seven years after the Court becomes operational, there would have to be an amendment conference, where the parties to the treaty, by near-unanimous agreement, defined aggression and the role of the Security Council, consistent with the UN Charter. When, and if, all these conditions could be met and aggression punished by the ICC was rather unpredictable. Although international lawyers are surely capable of defining aggression adequately, "the supreme international crime" and the root from which the worst human rights violations invariably grow, was left in limbo.
Another major disappointment was the inability of the United States to vote for the Rome Statute. After all, it was the United States that had inspired the world with its leadership at Nuremberg and it was President Clinton who pledged to uphold the Nuremberg precedents and who appeared before the General Assembly in 1997 to call for an ICC before the end of the century. The U.S. had played a key role in creating the ad hoc tribunals for Yugoslavia and Rwanda. The reasons for balking in Rome, set forth in speeches by the able American Ambassador David Scheffer, were not generally considered persuasive by most other nations, including some of America's closest allies. Many distinguished American Professors of Law, such as Cherif Bassiouni, Bartram Brown, Roger Clark, Diane Orentlicher, Michael Scharf, Ruth Wedgewood and many others, criticized the U.S. position. Former State Department employee John Bolton was a principal spokesman for the conservative right-wing that viewed an international court as anathema.
The main sticking point was U.S. reluctance to support a treaty that might allow American troops on a humanitarian mission to be maliciously accused of war crimes even though the United States had not ratified the treaty. An unseen stumbling block was more political than legal. Senator Jesse Helms of North Carolina, Chairman of the powerful Senate Foreign Relations Committee ( that has to consent to ratification of any treaty) made it unmistakably clear that he did not want the treaty repaired - he wanted it killed! The Defense Department has also failed to see any advantage in creating a new international court that might indict American servicemen and women, or their leaders, for alleged crimes. Some Pentagon representatives did not seem persuaded that the innocent need never fear the rule of law.
Certainly, there were defects in the Rome prototype so frantically assembled, but with a little creative lawyering and an added layer of political will many of the shortcomings could surely be fixed. Ambassador Scheffer continued to play a constructive role in the negotiations on procedural problems and he reiterated America's interest in being able to join the overwhelming majority. The treaty, and the implementing regulations still being negotiated, contain many safeguards accepted to allay America's concerns. Every nation was given priority to try its own citizens accused of crimes. The ICC could only get jurisdiction if the state of the suspect's nationality was unable or unwilling to provide a fair trial. The Prosecutor must be of highest calibre and subject to a variety of judicial controls. Additional budgetary and administrative provisions guarantee that the Court can not run amok. This is not the place for detailed rebuttal to American hesitations but a procedural suggestion may be helpful in providing time to iron out these differences.
The American Constitution vests the President with authority to negotiate and sign treaties. Ratification, to make the treaty binding, requires consent by two-thirds of the Senate. But there is no requirement that the President must submit even a signed treaty for Senate consideration; Presidents often wait until the political climate seems receptive. Signing a treaty simply incurs an obligation not to sabotage it. The preemptive media strike by Senator Helm's announcing in the midst of the negotiations that the Rome treaty would be "dead on arrival" was an intrusion into the President's constitutional prerogatives. Pentagon pressures on other nations also undercut the President's constitutional authority as Commander-in-Chief. Diversity of sincerely-held opinion is inevitable in every great democracy and the Helms-Pentagon opposition, even if bordering on constitutional illegality, reflects strong feelings of conservatives who are not prepared to accept new thinking. But it should not remain unanswered by an administration that supports the rule of law.
It would seem to be in America's interest, both domestically and internationally, if the President would re-assert his constitutional authority by signing the treaty for an ICC. He can, at that time, express all of the concerns of those who oppose the treaty. The public can then debate the merits of the points in dispute and, through the elective and democratic process, make its views known before the issue is submitted to the Senate for its advice and consent. There will be ample time for detailed study of all of the objections. Signing the statute would be more than a symbol. It would block the dangerous erosion of presidential powers, would validate promises made to the American public and the world community and would reinforce America's credibility as a democratic world leader.
The Path to Peace and Justice
When the last millennium began, those who preached peace were crucified.
Wars were considered honorable and glorious. Mass rapes, pillage and taking captives as slaves were traditional prizes of conquest. The Inquisition burned savants at the stake for daring to speak the truth that questioned Church dogmas. Many great empires once considered invincible have since disappeared. What was blindly accepted as unalterable truth or inevitable was altered when people learned to think for themselves and had the courage, and the patriotism, to speak out. It was only during the past few hundred years that the concept of international law was born and the radical idea evolved that every human being was entitled to human rights. The abolition of slavery, freedom from want and fear, and the emancipation of women, are among many human entitlements that have only been asserted during recent memory. Although there is still a great gap between proclamation and practice, many attributes of peace and justice that were unthinkable not too long ago are now taken for granted. So it shall be during the next millennium.
The most fundamental of human rights - to live in peace with justice and dignity - is a very elusive goal. Peace is obviously better than war, yet the defense of war as a necessary institution remains firmly entrenched and even glorified in rigid minds that refuse to believe that a viable alternative is possible. It is an ironic paradox that peace depends on justice, yet there can be no justice without peace. Revolting conditions will always incite revolt. General Dwight D. Eisenhower's farewell address as US President warned of the malignant power of the "military-industrial complex". That great soldier confirmed that every dollar spent on arms is theft from the poor. How many needed schools and hospitals could have been built, how many saved from hunger or despair with the money spent on weapons that could never be used because they were ecocidal, genocidal and suicidal? Yet, no nation can be expected to surrender its arms until there is an effective alternative security system in place. Surely, the human mind that was capable of inventing the miraculous things we see around us every day, should be able to manage the planet without destroying it.
No one should denigrate the heroic sacrifices of brave young people who perished in the service of their country while loyally following their leaders. Despite existing prohibitions against the use of armed force, perhaps a hundred million innocent men, women and children have been killed in a hundred wars throughout the world since the UN Charter was adopted. In the next millennium it will become clearer to all that the only real victor in war is Death. Decision-makers and "realists," who have relied on traditional concepts of power and military might have left a bitter legacy. We must be ready to take a chance for peace.
To be sure, a more humane world still requires many changes that cannot be quickly or easily attained. International laws must be clearer, courts must have binding jurisdiction to settle international disputes and authority to punish those who commit aggression, crimes against humanity or similar atrocities. An improved United Nations is also needed, with a more objective and democratic Security Council, able to control armaments, impose economic sanctions and apply international military force when all else fails. Improvements do not require complicated Charter amendments that may be difficult to attain but only correct interpretations by nations that are willing to honor their existing obligations without equivocation. Social injustices that give rise to violent discontent must be diminished. Environmental and population concerns must be addressed. Everything is linked and progress must be made on all fronts before greater tranquility can be expected. It is a fundamental requirement for peace in the next millennium that the prevailing "war ethic" be replaced by a new "peace ethic" and that lawlessness be replaced by the rule of law.
We all inhabit one very small planet in a vast cosmos and all life is sustained by a fragile crust that must be tended with loving care if planet earth is to survive. New networks of instantaneous global communications have perforated all national boundaries. Young people in particular will be willing to surrender their hatreds rather than their lives as they are educated for a more humane future built on universal human solidarity. Of course, all of the modern techniques of persuasion will be needed to replace the stabbing and grabbing of the last millennium by a new ethic of caring and sharing. The schools, religious institutions of all denominations, non-governmental civic organizations and all who care about their children must share the responsibility to bring about needed changes. National defense budgets should include major allocations to study, retrain and teach human beings everywhere how to live in harmony. A new morality of universal equality and justice must be disseminated over global networks as the foundation for future peace.
The astounding new sources of information, seized by the youth of all nations, offer opportunities still beyond our imagination. We must develop a new awareness of where real human security lies. The effort to bring about needed social change is in everyone's interest. No nation and no people can be secure until all are secure. Sustainable security does not depend upon a nation's capacity to kill people but upon its ability and willingness to help people. History has demonstrated that - despite failures and shortcomings - progress toward a more rational and humane world is being made. Future peace is too important to be entrusted to those who despair because they are blind to progress and have become disillusioned or cynical. Hope can not be extinguished. The time has come to look to young "dreamers" for a happier future. From continuing determination and courageous imagination of innovative young people of kind heart and noble mind a path will be found to peace and justice in the next millennium.
Benjamin B. Ferencz
The author, Harvard Law School JD 1943, served in the American army during World War II. He was Chief Prosecutor for the United States in the Nuremberg War Crimes trial against Nazi extermination squads that murdered over a million people. He set up and directed post-war restitution programs to compensate survivors of persecution, practiced law in New York, was an Adjunct Professor at Pace Law School, and is the author of many books and articles and a frequent lecturer on world peace.
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