Getting Aggressive About the Crime of Aggression

Benjamin B. Ferencz

At least 40 million people were killed in World War II. It dawned upon those in power in 1945 that perhaps there could be a more peaceful way to manage world affairs. To be sure, the same thought had occurred to world leaders in 1919, after only 20 million were slaughtered in World War I. The fact that twice as many people were killed in the second war as in the first, raised some doubts whether nations were heading in the right direction. It was not very reassuring to note that world wars were being listed by successive Roman numerals. So the wise men whose countries had conquered Germany and Japan put their wise heads together to devise a wise new system to protect future generations “from the scourge of war.” The powerful United States took the lead in devising an improved institution for peace. One of the persons the U.S. turned to for assistance was Sidney Pasvolsky, a man practically unheard of before or since

Pasvolsky was not known as a wise guy. He was a minor official in the U.S. State Department who was assigned to draft a new constitution designed to maintain a more peaceful world. Sidney turned first to the Covenant of the League of Nations as the logical legal precedent to serve as a guide. True, the United States had never joined the League of Nations—ratification had been blocked by a handful of conservative U.S. Senators. To make the new dish more palatable, Sidney used his creative imagination to vary the recipe by changing around some of the important names. Instead of calling the new statute a “Covenant,” he suggested it be called a “Charter.” Instead of calling the controlling body “The Council,” he recommended calling it “The Security Council.” The “Assembly” was renamed “The General Assembly.” The “Permanent Court for International Justice” was simply called the “International Court of Justice.” Some of the new names and stylistic alterations were longer than the old ones--but some were shorter. It sort of balanced out in the end. It still wasn’t a very tasty dish.

The U.S. draft was discussed with the leading victors at a Washington estate called “Dumbarton Oaks.” The fact that the name began with the word “Dumb” was not encouraging. On a garden wall there was a more ominous inscription: “As ye sow, so shall ye reap.” The revised U.S. text contained a few substantive changes, such as calling for the creation of an international military force to safeguard the peace. But that was made contingent upon another agreement being reached among the Great Powers; and so, it never happened. It also called for a review conference within 10 years to consider needed amendments; that was ignored. An encouraging new provision prohibited of the use of armed force—except in very narrowly defined circumstances of self-defense. Under the Covenant, and throughout history, warfare had been perfectly legal. The right to go to war had always been seen as a glorious means of assuring aggrandizement and survival of the fittest. According to the Nuremberg judgments, unauthorized war-making, which had previously been a national right, was condemned as an international crime. Unfortunately, that very significant concept would also be ignored in practice. The draft then came before a conference in San Francisco where all Nations were invited to express their views. They were allowed to sign the Charter on June 26, 1945, pretty much as the U.S. proposed.

The Charter also contained a new provision regarding voting. The League of Nations could act only by unanimous consent of its members. Thus, each one had a veto power. That practically guaranteed paralysis on any significant issue. The Charter for the new organization, misleadingly named “The United Nations,” provided that only the five major victors, the U.S., UK, USSR, China, and France, should have a privileged veto power. Although the Charter affirmed that the Organization was based on “the principle of the sovereign equality of all its Members,” it was obvious that some were more equal than others. It was an unfortunate political reality that unless the U.S. retained a unilateral right to veto any UN enforcement action, the conservatives in the Senate would block ratification, as they had done after World War I. Conservatives, by definition, are slow to accept change. Deliberately ambiguous language proved acceptable if it could be interpreted to suit everyone. So it came about that the effectiveness of the UN Charter as a law binding all nations was doomed from the outset. The public was misled into believing that a new era of peace through law was on the horizon.

The 1945 plan for future peace had two basic components. One was the UN Charter that prescribed humanitarian aspirations to govern the future. The second required a system of enforcing the rule of law as laid down in the Nuremberg Charter. It was like a stool with two legs: the UN structure was inadequate, and the Nuremberg mandates were vague. Other defects were there for all to see. The world organization had no independent financing. It was dependent upon its members for contributions. It had no enforcement mechanism or independent military force as envisaged. It could only act when its self-appointed five “Permanent Members,” with different social and political systems, were all in agreement. Surely, this would not be an effective organization to maintain peace among competing nations. But that’s as far as sovereign states were willing to go at that time. Considering the built-in obstacles, it is quite remarkable that the UN has been able to accomplish anything. The cathedral of peace needed a stronger foundation, but it could only be built one stone at a time. Changing the way most people think and act is not a transformation that can be accomplished quickly or easily. Don’t blame Sidney Pasvolsky. He was only the messenger.

When the first General Assembly of the United Nations convened in New York in 1946, it declared that genocide was an international crime that should be punished. It also affirmed the validity of the Charter and Judgment of the International Military Tribunal at Nuremberg. The most important step forward at Nuremberg was the decision, as a matter of existing international law, that aggression—illegal war-making—was “the supreme international crime.” Nuremberg also made clear that Crimes Against Humanity would “never again” be tolerated, and those responsible for wartime atrocities would be held to account in a court of law. The General Assembly called for the appointment of committees to codify international criminal law, and to move toward the creation of the needed new criminal tribunal. In due course, the desired committees representing various combinations of nations began their meetings. And they talked. And they talked. They were still talking 25 years later.

For almost a quarter of a century, distinguished jurists from nations all over the world were talking about how to define one word—“aggression.” They had halted consideration of a more comprehensive Code of International Crimes because they were unable to agree on a definition of the main crime. If there was no Code, there was no need to work on the creation of an International Criminal Court to interpret the non-existent Code. So they talked some more, and got nowhere. The cold war was the excuse to put all three topics—the definition, Code, and Court—in the deep freeze. Meanwhile, wars were raging all around the globe, and young soldiers and countless civilians were dying while hoping for the more peaceful world they had been promised.

I could not avoid feeling frustrated as I began my regular attendance at various UN aggression committees. The fate of humankind had been entrusted to them, and it was time for me to get aggressive about defining aggression! In addition to collaring diplomats in UN corridors, I began to write memos and law review articles exposing what was happening, and suggesting various ways to get out of the quagmire in which distinguished representatives were wallowing.

Some delegates did not take kindly to my meddling. I recall an incident around 1971 when I was attending Aggression Committee meetings at the UN in Geneva. I was sitting quietly by myself in the balcony when the distinguished delegate of Egypt, then at war with Israel, rose and demanded that I be evicted, since it was a closed meeting.

The Committee Chairman, Bengt Broms of Sweden, was a fine gentleman who knew me well. He seemed rather speechless by the unusual request. The day was saved by Cyprus, whose Ambassador, Zenon Rossides, had always been a strong supporter of an International Criminal Court. Its representative, a chain-smoking Cypriot named Dinos Moushoutus, rose and declared that he was inviting me to come down and join his delegation. After clearing with the U.S. delegate that I would not be violating any laws, I became an unpaid representative of Cyprus for purposes of that meeting. The Egyptian, Ali Teymour, was later promoted, I guess, to be what I called “the Doorman” at the UN. He greeted important guests at the entrance door, escorted them to the General Assembly chamber, and pointed to the seat where they were to sit while waiting to be called to the podium. As far as I could tell, he did that pretty well. I bore him no grudge since he was not responsible for his limited mental capacities. I remained determined to do whatever I could to get over the definitional hurdle that was the pretext for blocking progress toward the establishment of an International Criminal Court.