Reaching the Unreachable

Benjamin B. Ferencz

Being little more than five feet tall, I have had considerable experience in trying to reach the unreachable. If one tries hard enough and uses a bit of creative imagination, it can be done. You must first believe that it is reachable, and then stretch as far as you can. Having majored in criminology, it seemed logical to me that if we hoped to deter atrocious international crimes, such as aggression and genocide, it might be helpful if perpetrators knew in advance that they would be held to account in a court of law. The Nuremberg trials calling for the rule of law to deter international crimes had been affirmed by the entire United Nations in 1945. Despite such widespread acclaim, the movement toward the advancement of that goal was slow in coming.

By 1974, I shifted my reach for a new international criminal court to the halls of the United Nations. Since UN meetings traditionally start promptly 20 minutes late, I seized that unused time to approach committee members who were on the floor. I do not suggest that they were lying on the rug. Trained diplomats never lie that way in public. They may be expected to dine for their country or even die for their country, but would never lie for anything, except their national or personal interest. Delegates are taught to stand on their principles. They are also well trained at sitting, which they do most of the time. They seemed happy when a former Nuremberg prosecutor broke the boredom which they were paid to endure. Some of the newcomers, who knew little and seemed to care less, welcomed my distribution of proposals and compromise solutions to problems that had been rehashed for many years. After almost 30 years of such careful deliberation by a variety of UN committees, the truth emerged that major powers had no intention of curbing their warlike behavior, despite haughty pretensions to the contrary.

Nations faced the daunting challenge of creating a permanent international criminal court as a new legal institution that had never before existed in human history. Acting by the desired “consensus” meant that every delegate would have a veto power—a proven technique for delay or inaction. Agreement would have to be reached by Committees, composed of rotating representatives with different social, legal, and political traditions. Many scoffed at the idea of creating such a novel organization. Recalling that everything that was new had never existed before, I remained firm in my determination to help create the missing criminal tribunal that was so vital for a peaceful world. There can be no instant evolution. UN action would continue to proceed at a pace that would make a tortoise with a crutch look like a speed demon.

The course of history is often determined by unforeseen and unforeseeable events; so it was with the International Criminal Court. Although humans claim to be the only rational animal, significant social changes are more often induced by suffering rather than by reason. The unanticipated outbreak of civil war in the former Yugoslavia in 1992 provided a catalyst for the movement toward international courts. It was reported that thousands of Muslim women had been systematically raped by Serbian forces determined to “cleanse the area” for their own national hegemony. Atrocities, showing starving captives reminiscent of Auschwitz, appeared on television. The world was outraged. That included the rage of American women—of which there is no greater rage anywhere. They demanded immediate action. Unfortunately, U.S. troops had recently engaged in a failed humanitarian mission in Somalia. Worldwide TV had shown U.S. Rangers whose helicopter had been shot down being dragged through the streets of Mogadishu to the cheers of Somali warlords. After that, neither the Pentagon nor the U.S. public was eager to send American boys to fight and die in Bosnia—wherever that was.

Some genius in the U.S. government (and there are such, if one looks carefully) recommended that rather than sending American troops, why not get the UN Security Council to set up a special international court to try the violators of humanitarian law? My 1980 book, An International Criminal Court—a Step Toward World Peace contained the history and documents of all previous efforts. It took only two months for the Codification Division to draw up the statutes for the desired court. Since its jurisdiction would be restricted to crimes after 1991 in the former Yugoslavia, and no Americans were involved, the U.S. had nothing to fear. The International Criminal Court for the Former Yugoslavia (ICTY) was established on 25 May, 1993. It demonstrated the capacity of the United Nations to act quickly, when its leading members had the political will and courage to do so.

In 1994, some 800,000 men, women, and children were systematically and savagely butchered when warfare erupted between rival ethnic tribes in Rwanda. World leaders anticipated that it was likely to happen, yet nothing effective was done to prevent it. That such horrors could occur, despite the lessons we should have learned from the Holocaust, remains another odious stain on our civilization. With none of their own vital interests at stake, nations responded too slowly and meagerly to avert the genocide. Activated by public outrage, the Security Council quickly created another special tribunal, the International Military Tribunal for Crimes Committed in Rwanda (ICTR)—similar to the ICTY. Like its predecessor for Yugoslavia, the Rwanda court had only a very limited reach. Chief Prosecutor Richard Goldstone, a renowned South African jurist, was given jurisdiction over both courts to ensure uniformity of practice—and to save costs, and possibly lives. When he once gave me a lift in his armored car in The Hague, he explained that his driver was required to race at breakneck speed to limit security risks. Keeping one eye on crimes in Yugoslavia and another eye on crimes in Rwanda, all while trying to avoid being assassinated, is probably bad for the eyes as well as the blood pressure.

While participating in an international conference in Paris around 1995, I met the Minister of Justice of Rwanda, a charming chap named Nteselyayo, or something like that. His first name was even less pronounceable. We agreed that I could call him “Yo-Yo.” We conversed in English and in French, but I was often not sure which language was being spoken, and I am sure that he shared the same doubts. He invited me to go back home with him to advise his government about what to do with over 100,000 Rwanda genocidaires, those who had participated in the wholesale slaughter of their neighbors when, in the name of self-defense, Hutu turned on Tutu, and Tutu turned on Hutu and vice versa. I said I would have to consult with my good wife. When I phoned my spouse and asked whether she would care to join me in a trip to Kigali, Gertrude replied, “Where is Kigali?” My answer, “Oh, that’s in Tanzania.” “Where is Tanzania?” “Oh, that’s in Africa, next to Rwanda and they are holding a hundred thousand Rwandan murderers and don’t know what to do with them,” came my bland response. “Are you crazy?” Following the wise judgment of “she who must be obeyed,” I never got to Kigali.

The establishment of the temporary international criminal tribunals for crimes against humanity committed in Yugoslavia and Rwanda were both important steps forward. But these two Security Council courts were only temporary—ad hoc, as lawyers like to say. These courts had only limited jurisdiction and did not apply equally to everyone. To avoid the immunity from prosecution that Heads of State and others had enjoyed in the past, all government leaders must know that, in the future, they will be answerable for the crimes they plan or perpetrate. What was still needed was a permanent court with broader authority to hold accountable those leaders responsible for massive criminality whenever and wherever the crimes occurred. The unreachable had not yet been reached. But we were on the way!