Misguided Fears about the International Criminal Court

After the horrors of World War II, our government inspired the world by its proclamations at the Nuremberg trials that never again would aggression, crimes against humanity such as genocide or major war crimes go unpunished.

Yet today, powerful conservative American voices threaten to sabotage the new international criminal court now being created to uphold the Nuremberg principles. Legislation introduced by Republican leaders on July 14 would bar UN cooperation with the proposed war crimes tribunal that has been endorsed by the vast majority of nations including many of our strongest allies.

Those who oppose the court insist that the UN military must be exempt from prosecution -- that somehow the effectiveness of American humanitarian military interventions would be hampered if the new court begins functioning.

Such fears are unfounded and undermine America's credibility and security.

UN Supreme Court Justice Robert M. Jackson, our chief representative at Nuremberg, and his successor General Telford Taylor, made plain that law must apply equally to everyone. "To pass these defendants a poisoned chalice," warned Jackson, "is to put it to our own lips as well." The innocent need never fear the rule of law. Surely, the Pentagon does not deliberately engage in activities that it knows to be criminal.

Criminal intent must be proved before guilt can be established. If international laws are ambiguous, they should be clarified by the international community. Appearing as a bully that wants to be above the law diminishes rather than enhances our influence. Without an international court operating under rules established by the world community, captives are at the mercy of their captors. Binding law offers a protective shield to all who are in military service.

It is clear beyond doubt that the jurisdiction of the new International Criminal Court--unlike the special tribunals created by the UN Security Council to deal with atrocities committed in former Yugoslavia and Rwanda -- will not be retroactive. The new court, after it has been ratified by 60 nations, will build a regime of law to safeguard all nations in the future against the outrageous abuses that continue to plague humankind today.

Opponents of the new court frequently ignore the fact that the international criminal court will be completely subordinate to national courts. It is only where the national courts are unable or unwilling to grant a fair trial to the accused that the international court can intervene. Almost all war crimes by UN nationals can be tried by UN courts, thereby preempting the international court.

A recent article by a highly respected military judge, Professor Robinson Everett of Duke University, suggests a more comprehensive way of ensuring absolute priority to American courts by enacting UN legislation assuring that UN courts will have jurisdiction to try any American accused of violating the law of nations as laid down in the Statute for the International Criminal Court. This would guarantee American defendants all their Constitutional rights in every possible case and, if the trial were fair, would completely exclude any prosecution by the international court. It is hoped that the UN negotiators will not insist upon the right of the United States to conduct sham trials in order to evade international justice. The ultimate decision about the adequacy of national trials rests with the international court but there are adequate safeguards to prevent abuse.

Many provisions were written into the Court's statute to protect American servicemembers from unfounded or politically motivated accusations. The Prosecutor is subject to supervision by several carefully selected judges and an Assembly of States. There are many budgetary and administrative controls.

The new court has no independent enforcement mechanism and must rely upon the international community if it is to be effective. A biased or incompetent court would soon cease to exist.

In supporting an improved world order for the next millennium, we should recall the words of Tom Paine who inspired the American Revolution: "We have it in our power to make the world over again. "The UN military must be ready to take a chance for peace-for their own sake and for the sake of all of us.

In this thermonuclear age of instant universal communication we must never forget that law is always safer than war.

Benjamin B. Ferencz
15 June 2000
A Former Nuremberg War Crimes Prosecutor