The Overdue Baby is Born

Benjamin B. Ferencz

On July 1, 2002, the treaty creating an international criminal court went into effect. The long-overdue baby was officially born. The U.S. government, ignoring any paternal responsibility, set out to destroy the infant. Why? Only the guilty need fear the rule of law. Was the U.S. trying to hide something illegal? Everyone must be presumed innocent until found guilty in a court of law. In this case, you can’t avoid getting a bit suspicious.

The London Times reported that as early as April 2002, in Crawford Texas, President George W. Bush and Britain’s Prime Minister Tony Blair were considering the imperative for a regime change in Iraq. To gain public support for military action, an assault could be justified by pointing to hazards posed by terrorism and weapons of mass destruction. They agreed that Saddam Hussein, Iraq’s tyrannical dictator, was a nasty fellow, but whether he was responsible for those dangers was not quite clear. Top people in the British cabinet had their doubts. Although Nuremberg had condemned aggression as the “supreme international crime,” there was no tribunal in existence with authority to test the issue. Perhaps it was understandable why the young President Bush did not see any urgent need for such a court.

This is not the place to argue about the legality of the Iraq war. My personal views are amply reflected by the dozens of articles, interviews, and lectures that appear on my website starting in 2001. In short, I believe that the use of armed force in violation of the UN Charter is a crime of aggression. Some otherwise competent lawyers do not share that view. My reasoning is spelled out in a long lecture to the American Bar Association in November 2005 that appeared repeatedly on national public television. A shorter speech, to a standing ovation, can be found in my address at the Library of Congress in Washington in celebration of Veteran’s Day on May 26, 2005. I did not use any prepared texts. I was speaking not from my notes, but from my heart.

Allow me to interject a most interesting opinion on the illegality of the Iraq war that came from a most unexpected source. Elizabeth Wilmshorst, a very dignified and regal lady, represented the United Kingdom at the United Nations for many years. At meetings of the Preparatory Committee for the Establishment of an International Criminal Court, she was recognized as an outstanding legal expert. I did not share her conclusion that the crime of “Aggression” could only exist if there was a “war.” She was relying on a World War I legal opinion of Lord McNair, and I didn’t agree with His Lordship, either. It came as a great and pleasant surprise to me when, on the verge of the Iraq war, Ms. Wilmshorst suddenly resigned. The reason given by her for that unexpected departure, as reliably reported in the press, was that she could no longer serve a government that was committing “the crime of aggression... so destructive of the international order and the rule of law.” I felt like shouting, “Bravo Lizzy!” She declined my efforts to pin a medal on her at a formal ceremony, but she did, finally, accept a solid gold medal with a portrait of Queen Elizabeth and a peace design on the obverse, as my personal token of appreciation for her courage and integrity.

While public attention was diverted by wars of questionable legality in various parts of the world, the ICC Assembly of State Parties continued to meet in The Hague to build their new legal institution. Arrangements had to be made to elect the 18 independent judges from various regions of the world, as required by the Statute. There was no shortage of candidates, many of whom were well known to me from their days at the UN.

I had first met candidate Philippe Kirsch in 1999 when we were both recipients of an award for human rights at McGill University in Montreal. After receiving his award, Kirsch made an acceptance speech before I was expected to do the same. He apologized for having to leave for another appointment; and no sooner had his finished his brief appreciation did he grab the large glass-framed award certificate, and dashed from the crowded room holding it over his head. In our later meetings, I had fun teasing him about how he had fled in apparent panic the moment he heard that I was about to speak. We met often thereafter, and since he had done such a fantastic job as Chairman of the Rome Conference, I was pleased to write to his Minister to support Kirsch’s nomination for the ICC. I am sure that my recommendation was not decisive, but it probably didn’t do much harm. Not only did Kirsch get the job as Judge, but the other Judges then elected him the first President of the new International Criminal Court.

I first developed friendly contacts with Hans-Peter Kaul while I was lecturing in Bonn between 1997 and 1999 and he was serving in the German Foreign Office. He and his charming wife Elizabeth lived in a nearby villa in Koenigswinter on the edge of the Rhine. A bicycle path ran along the water’s edge, and he could get to work on his bike—if he didn’t fall into the river. He was a leading participant in the PrepComs, and was elected as one of the 18 ICC judges in 2003. The initial terms were staggered by lottery and he won only a three-year term.

Americans run for office, British stand for it, and Germans, I guess, just sit. At the UN, as elsewhere, votes are sometimes traded for favors, and an ICC appointment for nine years, with a lifetime pension, was a very desirable plum. I followed the tight 2006 balloting on my computer in Florida and requested my son Don to stand by at the UN. When Kaul was reelected, Don grabbed both the Judge and his wife in the corridor and, using his cell phone, I was able to convey my personal congratulations to my German friends. The German people had paid a very high price for their support of Hitler’s criminal regime; and I was particularly gratified that they as a nation had learned the lessons of Nuremberg and had finally become one of the strongest advocates of the rule of law.

Another elected Judge was Navanethem Pillay of Sri Lanka, whom I first met in 2000 at a Guatemalan monastery that had been buried for hundreds of years. My wife, daughter Keri, and I did not go there as archaeologists or for prayer. We were attending a human rights conference at the excavated and restored Casa Santo Domingo hotel. While in Antigua, my wife and I toured the area. It was a moving experience for both Gertrude and I to witness the extreme poverty and hardships combined with the strength and determination of the poor people who live there. The natives’ pride at being able to survive reminded us of our own difficult origins. The conference participants got to know each other personally since they dined and droned together for several days. In 2003, I was happy to see Pillay sworn in as an ICC judge—even if I couldn’t pronounce or spell her first name.

While the new court was getting itself set up, the fight by U.S. conservatives opposed to the court continued unabated. The ICC organizers treated the U.S. government opposition to the Court with the contempt it deserved. On March 11, 2003, a festive ceremony was prepared in a large hall at The Hague where the judges were individually sworn in to office. It was to be followed by a lunch in the Royal Palace hosted by Queen Beatrix of the Netherlands; I received a formal invitation and of course, accepted.

I also received an invitation from a civic group that I had never heard of. They wanted me to join them on that same morning in a protest—against the American law that authorizes the U.S. President to liberate any American whom the ICC might dare to detain. The protesters planned to build sand barricades along the beach at Schevinengen, near the ICC, with life-sized cardboard soldiers standing on guard behind their national flags, poised to repel any invasion by U.S. troops. I accepted their invitation; but only under certain conditions. I would have to be the last speaker so that I could rebut any false statements made about my country, and I planned to haul up the Stars and Stripes in the name of the American people. They agreed. I paid for the flag.

On the appointed day, the heavens were not friendly. The wind was howling, it was raining and it was cold. A small crowd of mostly young people, many of whom had come with the Coalition for an International Criminal Court, milled around the microphones and TV cameras that awaited the significant media event. Placards on the boardwalk had advertised the feigned confrontation and a handful of huddled bystanders were also waiting. I noticed former U.S. Ambassador Dave Scheffer and Bill Pace, the Coordinator of the CICC, on the beach. I invited them to join me when I raised the flag. Dave said he would think about it. Bill, being a World Federalist opposed to nationalism, declined. I stood alone.

When my time came, I noted that I had landed at nearby Normandy Beach during World War Two, wearing the uniform of the U.S. Army. I had come then to fight for freedom. Now I had come not to attack the U.S., but to defend the reputation of the American public that believed in the Nuremberg principles and the rule of law. I cited Tom Paine that the duty of a true patriot is to have the courage to stand up for what is right when his country has gone astray. As I hoisted the Stars and Stripes into the wind, I asked the audience to join me in reciting the concluding sentence of the pledge of allegiance that calls for “liberty and justice for all”—not just for Americans. I think there was applause, but I had no time to savor it, since I had to rush off through the sand to attend the royal reception by Her Majesty. I just had time to pause at my hotel to change my muddy shoes.

The reception in the palace was quite grand. Ambassadors and other eminent personages were seated around tables with white tablecloths and flowers. My seat was next to the podium where a keynote speech was made by the Prime Minister, Jan Peter Balkenende. He greeted the judges and distinguished guests and then, much to my surprise, announced that it was an extra special occasion because of my presence. Someone had apparently tipped him off that it was my 83rd birthday. After effusive praise, he proposed a toast to me as a former Nuremberg Prosecutor. I guess he wished me a long life as the other guests rose to join in homage to the fact that I was apparently still alive. They filled their glasses with the fine wines that had been set before them and some even applauded; although that is rather hard to do with one hand. It sure was a most unexpected and impressive birthday celebration. It was even more memorable than my Bar Mitzvah.

Holland’s Princess Maxima was the hostess at the swearing-in ceremony for the Prosecutor on June 16, 2003. I was invited to make one of the congratulatory speeches. Since I was eager to air my critical observations about U.S. opposition to the ICC, I felt it might be prudent to clear the text with my hosts. The new Prosecutor, Luis Moreno-Ocampo of Argentina was fortunate to have as his principal assistant Silvia Fernandez de Guermendi. I had known and admired her for many years at the UN. She had also been with us in Antigua and I knew we could speak frankly. Her boss Luis, and the amiable Chairman of the Assembly, Prince Zeid Ra’ad Al Hussein of Jordan, concluded that it would not be very diplomatic to use the occasion to assault another government. It might even further enrage ICC adversaries, who shall remain nameless. Being an obliging fellow, I took all the paprika out of the speech and delivered what I considered mild chicken soup that would not upset anyone’s stomach. I noted that the new Prosecutor was not blessed with the evidence or powers we had at Nuremberg and that he would have to proceed cautiously in a very difficult assignment. I proclaimed that the principles of Nuremberg would never die, and I wished him luck. I was congratulated for a fine speech and the sponsors heaved a sigh of relief.

The Mayor of The Hague was not to be outdone. The city prepared a large reception at which I was to be a key speaker. That was my chance to convey my uncensored outrage about the stupidity of my government’s irrational opposition to the ICC. I let go full blast and received a sustained standing ovation from the jubilant audience; in fairness, I must note that there were no chairs in the reception hall.

While in The Hague, I enjoyed an informal reunion with my old friend Tom Burgenthal at whose class in Buffalo, New York, I had lectured when he came to America after being a forced laborer in a Nazi concentration camp. We had remained in contact over the years, and I was delighted to see him in his new position as a Judge of the International Court of Justice in The Hague—probably the highest honor that can be paid to an international lawyer.