Setting the Scene for Progress

Benjamin B. Ferencz

While the two temporary international criminal courts were getting ready to try those responsible for the massive crimes committed in Yugoslavia and Rwanda, work continued to drag along on the urgent goal of establishing a permanent tribunal so that major criminals in other parts of the world would not feel neglected. Some policy- makers responsible for war crimes, remained safeguarded at home, with only an occasional visit abroad. Plots continue to be hatched secretly in national capitols. The public scene concerning international cooperation was played out on the stage of UN Headquarters, adjacent to New York’s East River. Malcontents occasionally suggested that the river was an appropriate place for some Delegates to jump into.

To understand why it takes so long to get things done at the UN, one must know how it works—or doesn’t work. The United Nations Charter, a treaty that binds all countries, reaffirms faith “in the equal rights of men and women and of nations large and small.” It should be noted that faith is one thing but reality is something else; the former does not become the latter without considerable effort. The U.S. Mission to the UN occupies a large building directly facing the world body. It employs hundreds of people backed by an even larger State Department staff. Smaller or poorer countries may employ only a few people working out of rooms in some nearby office building. Such disparities reflect the varying abilities of nations to cope effectively with the myriad problems confronted at the UN. The cards were stacked from the beginning in favor of the five original founders, led by the United States, who granted unto themselves the status of “Permanent Members” with the exclusive privilege of vetoing any enforcement action they didn’t like. Some might suspect that it wasn’t exactly a level playing field. It would not be amiss to suggest that primary responsibility for shortcomings, as well as wrongdoings, should rest with those who control the game.

The management of the world organization is left to the Secretariat which is bound by the member states that pay its bills. As every piper and Secretary-General knows, he who pays calls the tunes. The UN operates through numerous organs. Its committees are designed to represent the entire world community. Staff selections must reflect prescribed gender and nationality balances. With such mandated constraints, it is unavoidable that, instead of working hard, some UN employees hardly work. When asked to estimate how many people work at the UN, a frequent guess is: “About half.” The other half includes diligent and dedicated public servants whose efficiency ratings probably exceed those in the Pentagon or other large bureaucracies. Distinguished official Delegates who fill conference rooms with endless discourse on hundreds of agenda topics are paid by their governments to promote the interests of their own nations. I doubt if they get paid by the word or by the hour, but I assume their pay is not dependent upon results achieved.

Charter mandates for disarmament, among many other things, are talked about endlessly. The international military force called for in the UN Charter, has never been created. High-ranking military officers of the Permanent Members (P5’s) meet every second Friday in Room 9 on the ground floor. Their national flags hang limply on long poles behind a long table. Each bedecked officer in resplendent uniform solemnly announces that he has nothing new to say. These fantastic results are recorded regularly in one paragraph of the Security Council’s annual reports. Not a word has been changed for over half-a-century. When I tried to sit in to a “Military Staff Committee” meeting, I was barred. The explanation: “National security.” “Job security” would have been more appropriate. The original aspirations of the United Nations are often forgotten by those to whom the security of the world was entrusted.

Although the Charter opens with the declaration “WE THE PEOPLES,” the world body is an organization of sovereign states where the people have no independent voice. The declared primary obligation “to save succeeding generations from the scourge of war” has not been a very resounding success. It should come as no surprise that thoughtful people began to call for new institutions to carry out promises somberly made after some 40 million people had been killed in World War Two. Following the creation of the two temporary tribunals dealing only with war crimes in Yugoslavia and Rwanda, many individuals and small states raised their voices in support of a permanent International Criminal Court (ICC) with universal jurisdiction. After all, the 1776 American Declaration of Independence proclaimed that “governments derive their just powers from the consent of the governed.” As King George, of England, discovered, trying to govern the governed without their consent can be dangerous to those in power. The victims of the French Revolution made the same discovery, but they couldn’t talk much about it since their heads were missing.

For many years my attendance at UN conferences was a lonely vigil. Even when sitting, I was regarded as a bystander. Beginning in the 1990s, things began to change. Amnesty International ran a full page ad in the New York Times calling for an ICC—and for donations. I guess the ad paid off. Amnesty became an active ICC advocate. Human Rights Watch joined the fray, as did many other organizations promoting various human rights—particularly if the humans were females. The World Federalists had long recognized that an international court was essential to prevent international crimes. Their Executive Director, William Pace, was successful in convening many Non-Governmental Organizations to lobby jointly in support of an ICC. In time, he was able to boast that his Coalition for an International Criminal Court (CICC) embraced some 2,000 civil organizations. He served as Coordinator and succeeded in keeping them together to promote the common goal. It was a fantastic achievement. The fact that it didn’t cost members any money to join made things easier. He deserved the support CICC received from several governments, prominent charitable organizations, and others. I even had the moribund Pace Peace Center join the coalition, as well as a rather amorphous Committee of Former Nuremberg Prosecutors whose small numbers, and members, were on the decline. I always tried to coordinate my efforts with those of Bill Pace and the CICC but, since I was rather a free-wheeler who didn’t like to attend meetings, he dubbed me an “NGI”—a Non-Governmental Individual.

Organizations to protect the rights of women took a leadership role as they joined in support of the ICC. The idea of a special court to hold rapists to account was very appealing, except to rapists. I welcomed the enthusiastic support of the energetic women’s groups, but not without some hesitation and trepidation. Those seeking redress for female victims of crimes had no experience in implementing such programs. Directing German compensation programs had shown me that it was a very complicated, difficult, expensive, and lengthy process. Agreement had to be reached regarding the proof required to substantiate claims, how injuries could be measured, the place, procedures, and time required for adjudication, and the extent and source of payment. Not too much thought had been given to who would pay how much for what to whom and where. Fearing that assigning all these problems to the ICC might overwhelm the court, I urged that they simply call for “restitution, compensation, and rehabilitation” in principle and leave the details for later determination. My limited proposal was not very popular with the women. In fact, I thought members of “the gentler sex” might kill me.

I was able to show support for NGOs in a rather unusual way. When their number attending committee meetings had swelled to several dozens, the document room at the UN declined to hand out any more official papers to the non-official activists in the balcony. Without such materials, it was impossible to follow the debates. I was outraged. I rushed to the top floor offices of Secretary General Kofi Annan where I was halted by the usual guard. I explained the situation, handed him my personal check for $500, and asked him to give it to the SG to cover all costs of ICC documents needed by NGOs. A few minutes later the guard returned and reported that documents would immediately be made available. He didn’t return the check. I knew that Annan favored an ICC and an increased role for civil society, but putting a little grease on the wheel makes it move a bit faster. The preparations for the creation of an international criminal court moved into high gear in 1996.