What Really Happened in Rome

Benjamin B. Ferencz

For many years, 34 “independent” legal experts—the International Law Commission—had been struggling, more or less, to agree on the composition of a code of offenses for the creation of an international criminal court, as had been called for by the UN General Assembly in 1945. Some things just can’t be rushed, particularly if the discussions are between diplomats ruminating in the pleasant environs of Geneva in the summertime. Following the initiative of Trinidad’s Prime Minister, A.N.R. Robinson, the UN General Assembly in 1996 established a Preparatory Commission (PrepCom) to draft a treaty that would create a permanent international criminal court. All nations were invited to participate. Addressing the Assembly in November 1997, U.S. President Clinton called for “a permanent international court to prosecute the most serious violations of international humanitarian law.” He was echoing statements he had made at an event in Connecticut in 1995 to honor Senator Christopher Dodd of Connecticut, whose father, Tom Dodd, had been a Nuremberg Prosecutor. A crowd of 8000 cheered. I know because I jumped up to lead the cheering. Under the inspired chairmanship of Adrian Bos, a soft-spoken but determined Legal Advisor to The Netherlands, the PrepCom began a series of lengthy sessions in New York to cobble together an acceptable accord.

Everyone, including those who opposed it, spoke about a court that would be “fair, efficient, and effective.” But each delegate had his own ideas concerning the meaning of each word. All agreed that the international court would only be activated if the national courts of the accused were unable or unwilling to provide a fair trial. National sovereignty, although obselete, was thus being safeguarded; which made everybody happy. Determined Working Groups representing all points of view began to seek consensus on which crimes might come within ICC’s jurisdiction, what powers would be granted to the Prosecutor, how judges would be selected and paid, what rules would apply, who would capture the criminals and enforce sentences, and a host of similarly unsolvable problems. To be universal, the final text would have to balance views of the 185 members of the UN with varying legal systems and questionable degrees of commitment to the declared goals. While “great oaks from little acorns grow,” it takes time to reach the lofty heights, and the nuts must be adequately nurtured.

When the PrepCom concluded its report in April 1998, much progress had been made, but the areas of disagreement were still rather overwhelming. Dissensions were reflected in the drafts by square brackets placed around each contested phrase or word. There were at least a thousand—yes, 1000—such points of contention. It seemed prudent for the Delegates to get out of town. Instead of just throwing up their hands in despair, they decided to invite their bosses to join them in Rome for five weeks. What some may have hoped would be a Roman holiday turned out to be an intense working session of Plenipotentiaries—that is the long title given to those who make short decisions after others have done the work. Their goal was to reconcile what seemed irreconcilable. That’s what diplomats get paid to do. Sipping wine in sunny climes rejuvenates the spirit and helps unbearable burdens seem lighter. The “Plenepotents” went about their work with gusto.

My wife joined me to attend the Rome conference in June 1998. The minutes, and even the hours, are recorded. I need not rehash boring details. Most noteworthy, at least to Gertrude, was my five-minute speech to the Delegates before they settled down to more serious work. I was welcomed as a living symbol of the Nuremberg trials. More important Nuremberg luminaries could not appear because they were scattered in various graveyards. I thanked the Delegates for the honor, and declared that I had come to Rome to speak “for those who cannot speak—the victims of atrocious crimes.” I summoned them to follow the Nuremberg precedents and concluded with: “The place is here and the time is now!” The audience hadn’t stirred much, but after my stirring peroration they were so inspired, or relieved, that they unexpectedly broke out in sustained applause. My wife felt proud.

The bargaining, cajoling, pleading, and threatening that went on during the five turbulent weeks in Rome is indescribable. Many small states were convinced that without the rule of law to protect them they could not survive the ravages of great powers. Mighty nations were simply not ready to trust their security or their aggressive impulses to judgments by any untried international institution. For over 50 years, the efforts to create an acceptable permanent criminal court had been stalled. A new PrepCom Chairman, Ambassador Philippe Kirsch of Canada, a highly competent and experienced diplomat, had replaced the ailing Adrian Bos of Holland. Kirsch was called “The Magician” for the many compromises he seemed to pull out of thin air. The tension was palpable on the last day of the five-week conference—July 17, 1998. As night fell, Kirsch “stopped the clock” which is a magical way of having conference time stand still even while the earth defiantly continues to rotate.

In last minute maneuvering, the India-Pakistan proposal—that the first use of nuclear weapons should be listed as a war crime—was unacceptable to those who happened to have a larger nuclear arsenal. It remained illegal, under old Hague rules, to shoot your enemy with a poisoned arrow but, under the new rules, it would not be illegal to destroy a city with a thermonuclear explosion. Justice Oliver Wendell Holmes was right when he said the growth of the law is experience, not logic. Finally, after many additional skirmishes and midnight approaching, Kirsch called for a yes-or-no vote on the statute as a whole. Would the world community finally accept a more-or-less rational rule of law designed to help preserve peace? The Americans and some others did not wish to reveal their hand, so the vote was counted without counting the vote. Delegates just held up their hands (one to a customer) while staff members verbally tallied and shouted totals. The Chairman, covered with perspiration and quivering with excitement, announced that 120 had voted in favor with only 7 against adoption of the “Rome Statute” as the constitution for the first permanent international criminal court in human history! The hall went wild with joy. Me, too.

The U.S. was one of the 7 nations that rejected the ICC, including a few unnamed others whom the U.S. had previously branded as “rogue states.” Twenty-one nations abstained. I had joined in the burst of applause when the overwhelming vote in favor of the court was announced. But it pained me when the victors did not let up but continued their rhythmic clapping while circling and glaring at the U.S. delegation defiantly. I had known and respected our Ambassador, David Scheffer, for many years. He sat glumly with representatives from the Pentagon and the Senate, whose Foreign Relations Chairman, the conservative Jesse Helms of North Carolina, had sworn that the ICC would only come into existence over his dead body. I didn’t think he intended it as a quid pro quo offer. My joy at the victory for the rule of law was tempered by my sorrow that the U.S. was in opposition, and my friend David, who represented the United States as a loyal public servant, had to bear the burden of international humiliation.

Israel’s delegate, Ambassador Eli Nathan, had worked with me when the Israel-German reparations treaty was signed in 1951. The small country that many had hoped would be “a light unto the nations” surprisingly voted against the ICC. There had been a last minute minor disagreement about the legality of transferring settlers into occupied territory. But that was only an excuse, and those differences were quickly resolved later. Israel, dependent upon “Big Brother,” could not vote against “Uncle Sam.” Eli sent me an apologetic personal letter. Despite the appearance of opposition, important legal voices within Israel were in favor of an ICC. Israel wisely continued to participate in its deliberations; the United States government, not so wisely, followed a different course.