From Nuremburg to Rome: A Personal Account

Prosecuting crimes against peace and humanity was not invented at Nuremberg in 1945. Since ancient days, the legality of was itself and how wars were waged had been debated by renowned scholars from Plato to Grotius. Over 200 years ago, Immanuel Kant’s Zum Ewigen Frieden called for the protection of peace and human rights through the rule of international law.

A 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 offences 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 offence against international morality and the sanctity of treaties’. Lesser leaders, accused of various atrocities, were also to be handed over for trial.

Germany promptly announced the treaty as a Diktat. The Kaiser found refuge in the Netherlands 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-Briand 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 labour, 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 deeds in a court of law.

Prelude To Nuremberg

When the United States entered World War II, I applied for an assignment in army intelligence but was disqualified because if my foreign birth. The Air Force turned me down because I was only five feet one-half inch tall. As soon as I received my law degree I became a private in the supply room of an anti-aircraft battalion being trained for the invasion of France. In due course, we landed on the beaches of Normandy, and joined General Patton’s Third Army pursuing Germans back across the Rhine and on to the final ‘Battle of the Bulge’. After almost three years of military service, I was honourably discharged as a Sergeant and was awarded five battle stars which, as far as I could make out, was a reward for not having been wounded or killed.

The most formative events of my army career had to do with war crimes. Professor Sheldon Glueck, for whom I had worked as a research assistant at Harvard, had written a book on the prosecution of war criminals. When Washington turned to him for guidance, he suggest that the army try to locate me, noting that I had just written an article on the rehabilitation of army offenders which identified me as a corporal with the 115th AAA Gun Battalion. Much to my surprise, in December 1944, I was transferred to a new Judge Advocate section of Third Army Headquarters in Luxembourg that had been ordered to set up a war crimes branch.

The first persons targeted for trial were Germans who had committed atrocities against American troops, such as killing prisoners or downed allied flyers. Captured Nazi concentration camp commanders would also be called to account before an American military court. Investigations were carried out by a few enlisted men. After digging up bodies of American flyers murdered by enraged German mobs, I prepared reports identifying the suspects and listing the laws of war that had been violated. Witnesses were ordered to write out a complete description of the criminal event – under penalty of being shot. Confessions from accused were obtained by similar persuasions – even though they were usually rewritten under more sympathetic circumstances before being validated by an officer who would offer it in evidence. It was a grisly assignment. But the worst was yet to come.

I entered several concentration camps, such as Buchenwald and Mauthausen strewn with putrid bodies of the dead and dying. My primary goal was to capture all official camp records, including registries of inmates killed in the camps and the roster of German officers and guards, and have the crimes certified by survivors’ affidavits describing their ordeals and naming their torturers. Amid the overwhelming stench of burning skeletons, I was exposed to the filth of dysentery, typhus and other diseases that racked the emaciated bodies of the liberated inmates. I uncovered many mass graves as I followed trails of starving prisoners who had been whipped through the woods by fleeing guards – only to have their brains blown out when they could no longer go on. To keep from going mad, my senses became numbed as my mind built an artificial barrier and refused to be derailed by what my eyes saw. But the trauma was indelible and will remain with me forever.

As a form of symbolic justice, the army decided to try the captured criminals in a former Nazi concentration camp near Munich. I hammered up the sign saying ‘U.S. ARMY WAR CRIMES TRIALS, DACHAU’. The proceedings were in the nature of traditional military commissions following rules similar to those of regular army courts martial, where judges, prosecutors and defense counsel were US army officers – many with no legal training. No great new principles of law were established and the trials were abruptly discontinued when Pentagon policy toward Germany was reversed. The less said about the US Army war crimes trials the better. I left Germany as soon as I could after the war and hoped never to return there again.

The highly publicized trial of German Field Marshal Hermann Goering and other Nazi leaders accused of war crimes was already underway before the International Military Tribunal (IMT) at Nuremberg. Shortly after I arrived in New York I received a telegram from the War Department inviting me to come to Washington. I was urged to return to Germany as a civilian with the simulated rank of full Colonel to continue doing essentially what I had done as an army sergeant. I was also interviewed by Colonel Telford Taylor, a key member of the US prosecution team at the IMT. The US had decided to conduct a number of additional trials at Nuremberg after the IMT trial was completed. These ‘subsequent proceedings’ were to portray the broad panorama of Nazi criminality. Taylor was the man in charge and he was looking for help. He was a Harvard lawyer with a distinguished career in government and I agreed to join him. I was married in New York intending to leave for Nuremberg with my bride – like myself also a refugee from Transylvania – for a pleasant European sojourn at army expense. It turned out to be quite an unusual honeymoon.

The Trials At Nuremberg

On 8 August 1945, 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 the Charter creating the International Military Tribunal 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: crimes against peace (planning and waging aggressive war); war crimes (prohibited by custom and the Hague Conventions); and crimes against humanity (such as genocide and similar persecutions against civilian populations).

Only leaders or organizers or investigators 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. The official position of the defendants would not free them from responsibility. The provisions of the 30 Articles were carefully designed to assure a fair trial for the accused.

The principal architect of the IMT Charter was Robert H Jackson, on leave from the US Supreme Court. Justice Jackson’s opening statement as the Chief Prosecutor for the United States was an inspiring call for universally binding international law:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility… That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason… We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. [1]

Twenty-four major Nazi war criminals were placed on trial. Defendants were represented by competent council 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 to 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’. Of the 24 original defendants, one hanged himself before trial and one was pronounced medically unable to attend. Twelve were sentenced to hang, including Goering, Martin Bormann, Ernst Kaltenbrunner, Hans Frank, Joachim Ribbentrop and Alfred Jodl. Seven other received prison sentences of between 10 years and life.

Three defendants were acquitted.

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 crime 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 if 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 customary 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 the IMT required collaboration from the many segments of the 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. The accused included medical doctors responsible for illegal human experiments, jurists who distorted law to achieve Nazi goals, high-ranking military officers responsible, Foreign Ministry officials who helped plan aggression and industrialists who seized foreign properties and worked concentration camp inmates to death. [2]

There were 177 defendants in all put on trial, of whom 35 were acquitted. These 12 trials, with only American judges on the bench, further clarified international law and made plain (contrary to the view of the IMT) that crimes against humanity could be punished even if committed in peacetime. The law had taken another step forward to protect humankind.

My first assignment from Taylor was to head a team of about 50 researchers to scour the German archives in Berlin – including nearly ten million Nazi Party files – in search of incriminating evidence adequate to convict leading Nazi suspects under arrest in Nuremberg. My wife joined me and became a member of the staff. Time and budget was tight and only a tiny sampling of criminals, those against whom overwhelming evidence of crime was available, could be brought to trial. The rest would have to be left to other allied courts or possible prosecution by the Germans themselves. A surprise discovery in the ruins of Berlin brought another unanticipated change to my life.

The Einsatzgruppen Trial

As German troops invaded Poland and the Soviet Union, they were followed by special military units, known as SS Einsatzgruppen (EG), whose task it was to annihilate anyone who might present a current or future threat to Germany. Totalling some 3,000 men, these extermination squads were in fact to murder Jews, gypsies and perceived opponents of the Hitler regime. EG daily reports were consolidated, marked ‘Top Secret’ and then distributed in about 100 mimeographed copies to higher echelons of the Nazi and military hierarchy. The reports often contained the date, time, place and name of the unit commanders responsible for the killings. One of our researchers searching the remains of the Foreign Ministry in Berlin stumbled upon a nearly complete set of the EG reports. They showed beyond doubt that, over a two-year period, the EG had systematically slaughtered over a million helpless men, women and children.

I flew to Nuremberg, showed the discovery to General Taylor and urged that a new trial be prepared against the genocidal killers. Taylor recognized the importance of the evidence but expressed regret that all lawyers were already assigned and it was too late to organize new prosecutions. In exasperation, I offered to handle the prosecution myself – in addition to my other duties. Taylor smiled but agreed. I was promoted to Chief Prosecutor in the Nuremberg trial against the Einsatzgruppen. I scrounged three associate counsels from other cases and 30 days before trial made available to the 44 German defence lawyers every bit of evidence to be used at the trial. Relying on the official German documents, and without calling a single witness, the prosecution rested its case in three days. All 22 defendants, including six SS generals, were convicted of murdering over a million innocent people. The trial dragged on for about nine months while phoney alibis of the defendants were systematically rebutted. The 13 death sentences were hailed as a great victory and the press called it ‘the biggest murder trial in history’. I was then 27 years old. It was my first case.

It was clear to me that no punishment against 22 fanatic killers, no matter how severe, could ever compensate for the murder of over a million people slain because they did not share the race or creed of their executioners. If the trial was to have enduring significance it should articulate principles of international law that might prevent the repetition of such enormous crimes against humanity. That was the primary goal as I addressed the tribunal:

It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenceless men, women and children. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.

After outlining the proof to be present, I concluded:

The defendants in the dock were the cruel executioners, whose terror wrote the blackest page in human history. Death was their tool and life was their toy. If these men be immune, then law has lost its meaning and man must live in fear.

Little did I dream then, that my last sentence would resonate in the halls of the UN half a century later. In September 1997, in his annual report to the General Assembly and the Security Council, Professor Antonio Cassese, President of the International Tribunal for the Former Yugoslavia, concluded his presentation by quoting verbatim the warning I had articulated in September 1947. [3]

Compensating Victims Of Crimes Against Humanity

My life again took another unexpected turn when, in the summer of 1948, I was invited to come to Paris by the American Joint Distribution Committee, the largest Jewish relief organization assisting survivors of Nazi persecution. A new military government law allowed heirless and unclaimed property taken from Nazi victims to be retrieved by a charitable organization that would benefit survivors. [4] Of course, there was no precedent for such an undertaking and there was no money available to carry out the assignment. Although we wanted to return home, my wife and I decided that the chance to help the persecuted was a challenge not to be refused.

I designated myself the Director-General of the Jewish Restitution Successor Organization (JRSO), managed to borrow money from occupation funds, recruited staff and promptly proceeded to file claims for over 163,000 properties in the US Zone of Germany. German possessors adamantly refused to surrender their homes or businesses, arguing that they had paid a fair price or were bona fide purchasers who had improved the properties. Difficult legal issues had to be litigated through German agencies and courts and finally be resolved by an Allied Court of Restitution Appeals that was also set up in the Nuremberg courthouse.

In 1951, I joined a team negotiating a ‘reparations’ agreement between West Germany, Israel and the world’s largest Jewish organisations that were consolidated in a ‘Conference on Jewish Material Claims Against Germany’ (Claims Conference). After difficult negotiations in The Hague, Germany promised to compensate Nazi victims – Jews and non-Jews alike – for a complicated variety of losses. I set up an office in Bonn to work with legislators to be sure that Germany lived up to its promise. When the restitution and indemnification laws were enacted, every claim had to be verified by a complex administrative apparatus that put a strict burden of proof on every claimant. Jews were unwilling to turn to former Nazi lawyers for assistance. It was necessary to organize a non-profit United Restitution Organisation (URO) to assist needy claimants. It was probably the biggest legal aid society in the world with a combined staff exceeding 1,200 persons in 19 countries, including 250 screened German lawyers supervised by former Nazi victims.

Considering that there were no precedents for such programmes and that Germany was totally impoverished, it is gratifying that so many Nazi victims have received some measure of recompense. To the survivors, of course, no payment will ever be adequate, but the more than 100 billion DM (about 60 billion US dollars) already paid by the German government has made a significant difference in the lives of hundreds of thousands of persons, and the end is not yet in sight. (Nazi victims resident in communist countries, with which Germany had no diplomatic relations, received nothing.) In 1948, when I first started work on restitution of heirless property and in the following years when I pleaded for compensation and rehabilitation for survivors of prosecution, I felt like a voice in the legal wilderness. I could not foresee that in 1998, in Rome, the overwhelming majority of states would affirm, in the statute of a new International Criminal Court, that the victims of crimes against humanity were entitled to restitution, compensation and rehabilitation as a legal right. [5]

Establishing International Norms

In addition to the trial at Nuremberg, 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.

On the other side of the globe, 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 the US nuclear bombing of Hiroshima was a crime against humanity. A dissenting opinion by Tokyo Judge Pal of India (who would have acquitted all 28 defendants) maintained that all nations must share some responsibility for war and its inevitable consequences.

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 (Vespasian Pella, Donnedieu de Vabres and Raphael 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 in Article 6 of the Convention to the jurisdiction of the state where the genocide took place or 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 UN 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 General 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, later headed by legal expert Professor M Cherif Bassiouni, to investigate. He confirmed and documented massive atrocities reminiscent of World War II. The time has finally come – for the first time since Nuremberg – to reach for the rule of an international tribunal to punish shocking international crimes that could no longer be ignored.

The Security Council Acts: The 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 in Resolution 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 organisation and procedures, the assistance it was to receive from states and similar essentials. [6] The jurisdiction of the proposed tribunal was limited to serious violations of international humanitarian law (genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949 and customary war crimes) committed in the territory of 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 defence 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 11 judges from various regions of the world (including the first President Antonio Cassese from Italy, later succeeded by Gabrielle Kirk McDonald of Texas) agreed upon detailed rules for fair trial. Defence lawyers and prosecutors (led initially by Richard Goldstone of South Africa’s Supreme Court and later by Louise Arbour of Canada and Carla Del Ponte from Switzerland) earned respect for their competence and dedication. Tribunal decisions, including the appeals, were thoroughly researched and persuasive.

At the outset, the number or cases was very limited but by 1998 there were two convictions (the first convict, Dusko Tadic, was sentenced to 20 years) and four trials were in progress simultaneously. Two new courtrooms were built with donations from Britain, the Netherlands and the US. Some accused were surrendering voluntarily. Witness protection programmes, 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, 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 Tribunal was not free of problems. Co-operation by states like the Federal Republic of Yugoslavia (as well as Croatia and Bosnia), whose nationals were indicted and whose Constitution prohibited their extradition, was less than exemplary. The Tribunal 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 army commander General Ratko Mladic, charged with massive war crimes and crimes against humanity, diminished respect for both the Security Council and its ad hoc criminal tribunal. David Scheffer, special US Ambassador for War Crimes, warned: ‘their day before the Yugoslav Tribunal will come’.

The initial hesitation to use UN forces to arrest wanted suspects was gradually overcome as the political situation was further established and risks reduced, and more and more indictees have been detained by international forces. In 1999 the Prosecutor’s Office issued its most high-profile indictment: that of the then-serving Yugoslav President, Slobodan Miloševic, for crimes against humanity. By April 2003, there were in detention, eight provisionally released and 24 accused still at large. By that same date, the Tribunal had handed down sentences to 32 accused and found five not guilty.

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 under Resolution 955 and followed the pattern of the ICTY. An international war of aggression was not an issue and only human right crimes were 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. In Rwanda, the administrative problems for the justice system 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 the 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 has slowly been made. High-ranking officials are under indictment and in detention in Arusha. Witnesses who dare not to reveal their identity lest lives be endangered are being heard under special procedures that also protect the rights of the accused. In September 1998, the ICTR announced the first-ever judgment convicting a defendant – former Rwandan Prime Minister Jean Kambanda – for the crime of genocide. The landmark decision was hailed by the UN Secretary General as ‘A defining example of the ability of the United Nations to establish an effective legal order and the rule of law’. [7]

A Permanent International Criminal Court

The two special tribunal created by the Security Council met an important need by responding quickly to strong public demand that mass rapists and perpetrators of genocide be brought to justice. Instant worldwide communications brought an end to the age of impurity in which national leaders could commit atrocious crimes and still be sure to escape punishment. Consideration was being given to creating another ad hoc tribunal to deal with the crimes against humanity committed during the terror reign of Pol Pot in Cambodia. But a string of temporary tribunals created after the event and with only limited jurisdiction to deal with a few particular crimes in certain areas during a limited time frame is a very primitive and unsatisfactory way to assure that universal justice will prevail. International law must be known in advance and apply equally to everyone. What is needed as a deterrent to international crimes is an impartial, competent and permanent international criminal tribunal.

The initiative for putting an International Criminal Court (ICC) back in the UN agenda came in 1989 when Prime Minister ANR 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, 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. UN 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 in April 1998, much progress had been made but many differences, indicated by squared brackets around alternative texts, remained unresolved.

The final negotiating conference took place in Rome that summer. After intensive wrangling, compromises and a dramatic climax, the Rome Statute for an International Criminal Court received a wild ovation when it was adopted on 17 July 1998 by a vote of 120 in favour, seven against and 21 abstentions. Despite threats from US Senate and Pentagon representatives that sanctions would be imposed against any state that supported the Court, the entire European community and many other American allies voted for it. Chairman Philippe Kirsch of Canada, called in at the last moment to replace the respected but ailing Dutch Chairman Adriaan Bos, quivered with emotion as he hailed the historical moment as one of great importance for the future of humankind. UN Secretary-General Annan flew to Rome and called the Statute ‘a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law’. [8] In a letter I received from ANR Robinson, now President of Trinidad and Tobago, he wrote that he considered the establishment of the ICC to be the major achievement of his life. [9]

The United States, China and a reluctant Israel were among the seven states that voted against the Statute – each for different reasons. (Since the vote was not recorded, the identity of the other four negative voters is uncertain, but has been reported to include Iraq and Libya.) The US was not willing to subject its military to the risk of trial by a foreign court. China, mired in old traditions, was unwilling to yield sovereign rights. Israel said it would have been honoured to sign but reneged when words were inserted making population transfers a possible war crime. [10] US efforts to block the final vote suffered a resounding defeat. It was painful to me to hear the sustained rhythmic applause of defiant delegates who glared at the large US delegation as if to show their resentment against what many perceived as a superpower bully that wanted to be above the law.

Article 1 of the ICC Statute declared: ‘An International Criminal Court (‘the Court’) is hereby established.’ Unfortunately, the declaration that the Court was established on 17 July 1998 was a bit of an exaggeration. Under Article 126, the Statute could only go into force after it was ratified by at least 60 nations. Financing and other important transitional and administrative matters had to be left for later consideration. The Court would have jurisdiction over genocide, war crimes and crimes against humanity, and the crime of aggression. But there were severe limitations on that jurisdiction: the Court could act only on those cases where national states were unwilling or unable to grant the accused a fair trial; the Prosecutor could not act without prior approval by judicial supervisors; and in certain cases, the defendant could not be indicted unless the state of his nationality consented to the trial. In addition, the Court could only deal with the crime of aggression if, at a distant and uncertain future date, it would be possible to reach near-unanimous agreement on its definition. Some powerful states were eager to omit aggression from the Court’s jurisdiction altogether and it was included upon the insistence of a host of smaller nations.

In 1945, Justice Jackson, after analyzing emerging law, reported to President Truman: ‘It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal’. [11] The ‘crime against peace’ was enshrined as the primary target of the Charter of the International Military Tribunal at Nuremberg. Telford Taylor agreed that the most important crime was war-making itself. [12] I had appealed to US President Clinton and many officials of many nations and written a host of articles arguing that aggressive war must be curtailed by law. Failure to include aggression within the ICC’s jurisdiction would have been a repudiation of Nuremberg’s main achievement. Its omission might imply that aggressive war was not considered a punishable crime, the glorified ‘war-ethic’ would be enhanced and the advocates of a world without war would be disabled.

Until the final session in Rome, it was uncertain whether aggression would be subject to the Court’s jurisdiction at all. States that had power were unwilling to give it up and those without power seemed helpless. Since I had fought harder and longer than anyone I know to have aggression subject to punishment in an international court, I welcomed its inclusion on any basis. The fact that it was listed as one of the four core crimes was a demonstration of unrelenting human determination to move toward a more peaceful world. Its inclusion opened the possibility that upon further reflection, nations will overcome their fears and understand that building on the cornerstone of the Nuremberg Charter – and not discarding it – remains the best way to protect human right and the peace of people everywhere.

On 11 April 2002, more than half a century after Nuremberg, the number of ratifications needed to bring the ICC Statute into effect on 1 July 2002 was exceeded in a ceremonial presentation at the United Nations. In appreciation for having placed the item of an international criminal court back on the UN’s agenda, President Robinson of Trinidad and Tobago was invited to address the assemblage. In his moving remarks, he paid tribute to my dedication to our shared goal for so many years. He noted that I was sitting in the balcony. I cannot deny that I was very touched when the hall burst into loud applause. A dream of my youth was becoming a reality. A milestone had been reached in advancing the rule of law for the protection of all humanity.

+ Show Endnotes


[1] 21 Nov 1945; see Trial of the Major War Criminals before the International Military Tribunal (the ‘Blue Series’), 14 Nov 1945-1 Oct 1946 (US GPO, 1947-1949); T Taylor, The Anatomy of the Nuremberg Trials (Knopf, New York, 1992).

[2] See Trial of War Criminals before the Nuremberg Military Tribunals Under Control Council Law No 10 (the ‘Green Series’), Oct 1946-April 1949 (US GPO, 1949-1953); T Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No 10 (Washington DC, 1949); B Ferencz, ‘Nuremberg Trial Procedure and the Rights of the Accused’, July-Aug 1948, Journal of Criminal Law and Criminology, 144.

[3] A/52/375, S/1997/729, 19 September 1997 46

[4] US Military Government Law No 59, 10 Nov 1947

[5] ICC Statute, Art 75

[6] S/25704, 3 May 1993

[7] UN Press Release SG/SM/6687, L/2896, (2 Sept 1998)

[8] Press Release, L/ROM/23 (18 July 1998)

[9] Letter to the author dated 3 Sept 1998.

[10] Statement by Eli Nathan, Head of the Israel Delegation, (17 July 1998)

[11] Report to the President, 6 June 1945, International Conference on Military Trials (London, 1945) 52; reproduced in B Ferencz, Defining International Aggression (Oceana, Dobbs Ferry NY, 1975) at 370.

[12] Ibid, at 64.