Where the ICC Stands and Where it is Going

Benjamin B. Ferencz

The International Criminal Court that had been my dream as a very young man, became a reality when I became an octogenarian. I must admit that I was never sure that I would live to see that day. The motto “Never Give Up!” had paid off. I regretted that the American public had not been told the truth about the Court. I still hoped to correct that shortcoming during my lifetime. My final goal is one that I fear I will never reach. It is to put a stop to the absurd and barbaric practice of killing large numbers of innocent people because their leaders are unable to settle disputes in a more rational and humane way.

Nuremberg taught that aggression is the supreme international crime. Being a combat soldier taught me that there can never be a war without atrocities, and illegal war-making is the biggest atrocity of all. I concluded that the best, and probably only, way to protect the lives of brave young people serving in our military is to abolish war itself. I have written and spoken more on the subject of stopping the crime of aggression than any person dead or alive. At the UN, I was often referred to as, “Mr. Aggression.” I refused to believe that rational people were unable to accept the obvious truth that law is better than war.

The UN Charter clearly outlawed the use of armed force except when authorized by the Security Council or in temporary response to a direct armed attack. Despite these legal restraints binding all nations, powerful states still insisted upon the sovereign right to determine for themselves when the use of armed might would be lawful. It was as if the bank robber could determine for himself when it was lawful to rob a bank. The most contentious issue that divided the Delegates at Rome in 1998 was whether the ICC should be given authority to decide when an accused leader was guilty of the crime of aggression. Putting the posturing aside, it soon became clear that powerful states remained unwilling to yield their sovereign power, and less powerful nations lacked the power to do anything about it; nor did I. I was excluded from closed sessions dealing with the topic. At almost the very last moment, the stalemate at Rome was broken by a compromise. The subject was pushed to the back burner and left to be resolved at some unspecified future date.

Aggression was listed as a crime within the jurisdiction of the ICC, but the Court could not act regarding that offense before certain conditions were met. There had to be near unanimous agreement on a new definition of the crime, and agreement reached regarding the Security Council’s powers in relation to the Court. It had taken about 40 years to reach a consensus definition of aggression that was more sieve than substance. Permanent Members who controlled the Security Council were adamant in their refusal to surrender any of their Charter prerogatives. Based on past experience, there was every reason to believe that the stipulated pre-conditions to enable the ICC to deal with the crime of aggression would never be met. The most important provisions of the UN Charter and the Rome Statute were thus left hanging in limbo. The world community remained unable to come to grips with its most destructive activity. Its new International Criminal Court still lacked competence to deal with the “supreme international crime.”

There was no doubt in my mind that many of those who insisted upon a new definition of aggression, although there were many adequate indicators available, were motivated not by respect for the law but by the desire to evade it. I felt that dropping aggression completely, as was strongly urged by some of my friends, would be a repudiation of Nuremberg. It would undermine the rule of law while sanctifying the legality of war. With no official status, I could do nothing to change the outcome in Rome. Now, in my 88th year, my final goal is to continue trying to bring the crime of aggression down to earth. My hope remains that by eliminating the existing immunity of those who are the principal architects of illegal war, the horrible crime of aggression may occasionally be deterred. Like Tycho Brahe, I do not expect to chart all the stars in the firmament, but I remain confident that a time will come when some other torch-bearers will see the light.

In the meantime, an ICC Committee has been created to deal with the problems of enabling the Court to deal with the crime of aggression. It should come as no surprise that they were unable to reach agreement on points that had bedeviled other Delegates for decades. Most participants feel an obligation to say something different or significant. Some succeed; many simply rehash old arguments. Learned scholars love to demonstrate their unexcelled capacity to split hairs. I was unable to persuade them that it was not necessary to compose a new definition of unassailable clarity, but to formulate a text—any text—that will be acceptable to the overwhelming majority. I suggested many specific compromises, but to no avail. I was unable to overcome the traditional way that diplomats deal with such problems. They just keep talking. I keep trying to solve the problem.

In the meanwhile, there are plenty of other crimes that can keep the new court and its growing staff quite busy. Genocide, crimes against humanity, and a long list of war crimes, all meticulously defined, are punishable by the ICC. In his second annual report to the UN, in October 2006, Judge Philippe Kirsch, President of the ICC, summarized the progress that had been made during the first three years of the Court’s existence. Investigations were being conducted by the Prosecutor for crimes committed in Uganda, the Congo, and Sudan where tribal and sectarian rivalries sparked massive crimes against humanity. Some arrest warrants had been issued, and various Chambers of the Court were dealing with an array of procedural questions. The challenges facing the Court and its investigators are formidable—ICC investigators must enter areas where fierce fighting is raging, and victims and witnesses, speaking strange tongues, are intimidated. The ICC has no security forces of its own. It is dependent upon support by local governments, some of whose leaders are themselves suspect. In short, the ICC manifests all the helplessness of a new born babe. It needs help badly before it can stand on its own feet. But given assistance, in time, it will mature and hopefully will become an increasingly powerful moral force in deterring terrible crimes that, in the past, were committed with impunity.

It is likely that the public will become impatient. The wheels of justice grind slowly, particularly when they are traveling over uncharted terrain. When I went to school, there was no such thing as international criminal law or international humanitarian law—today it is taught everywhere. Progress is reflected by the fact that genocide is now prohibited all over the world. Perpetrators responsible for such horrors know that they may have to face the Judges of the ICC. New special international criminal tribunals, as well as Human Rights courts, have been created and are operational. To be sure, there are difficulties, but they can be overcome. The progress made within the span of one human life has been truly remarkable. Seen in proper historical perspective, the existence of the ICC must be recognized as a significant step toward a more humane world under the rule of law.

The most difficult thing to change is a deeply entrenched idea. Religion, nationalism, and economic power are among the most frequent causes of homicidal strife. Here too, despite recurring evidence to the contrary, progress is readily discernable to an eager eye. The American Declaration of Independence was viewed as a revolutionary document. The idea that “all men are created equal” was an inspiring innovation. It became more inspiring when women were eventually given the same status and rights, too. The world is in constant transition. We have witnessed the end of colonialism, the decline of racial discrimination, and the growing awareness of our dependence upon a sustainable environment. We have not done as well with disarmament and dispute resolution. Human survival may depend upon the peaceful settlement of disputes through the rule of law. The future, driven by the information revolution, is today unimaginable. I regret that I cannot hang around to see how it all works out. I wish the world the best of luck.