stories 61 - 69
My determination to seek a more peaceful world was inspired by a few great thinkers. The specific path to get there was extracted from my comprehensive readings and the books I had written starting in 1975. My 1994 book on Global Survival contained a consolidated overview of possible solutions to the major problems. The focus for my own future activities had to be limited. My initial goal was to tell the truth to the American people in order to win their support for an International Criminal Court. The confirmed Nuremberg judgment held that aggression was the supreme international crime, yet there was no international court in the world competent to hold perpetrators to account. Closing that gap in the existing legal order became my next challenging goal. I had no illusions about seeing its realization during my lifetime.
THE PATH TO GLOBAL SURVIVAL
Story 61: My Guiding Stars
Of the countless billions of stars in the firmament, only a very small number serve as guides to astronauts exploring the universe. As I peruse my own mind and the countless authors I have read, they have all had some influence on my thinking, but a few shine more brightly than others. Selecting a handful that might demonstrate the origins and influences on my life is rather impossible. Nevertheless, since trying to do the impossible is my favorite sport, I will mention only three that quickly come to mind, even though most people have probably never heard of them. In order of my own awareness of their existence, I would name as my top influences Vespasien V. Pella, a Romanian who wrote in French, Johann Caspar Bluntschli, a Swiss who wrote in German, and Tycho Brahe, a Dane who may not have written anything since he was noted only for his charts. The chosen few would probably insist on a disclaimer disavowing responsibility for any of my behavior, but that will not be possible—they all died long ago.
When I discovered him, Pella was lying on a shelf in the Harvard Law School library. I refer to his book, not to his body. In the year I was born, he had written a book condemning counterfeiting. Although I had no money, I was not planning on counterfeiting at that time, or even later. I was impressed by his book, Le Droit Penal de l’Avenir, which was written in 1925 when I was only 5 years old and couldn’t read—especially in French. The full title in English would be something like The Criminality of States and the International Penal Law of the Future. The gist of his thinking was that there were certain crimes that were often committed with the connivance of the State. He argued that the world needed an international criminal court to punish and deter such offenses. Crime prevention was my chosen field of study, and Pella made a big impression with his common sense conclusion.
It was only coincidental that Pella and I were both born in Romania. I did not hold that against him, even though Romania had fought on the side of Hitler during the war. He held a diplomatic post at the League of Nations in Geneva and played a key role in drafting a 1935 Convention for the Repression of Terrorism. It was never accepted. When his government was taken over by the communists after World War Two, Pella found refuge in New York where he was active with the Romanian Mission at the United Nations. He continued to write about the desirability of an international criminal tribunal which the General Assembly had resolved should be created. He played an important behind-the-scenes role when a 1947 draft for such a court was attached to the Genocide Convention; but it was again rejected by short-sighted diplomats who masqueraded as Statesmen. In 1950, the American Journal of International Law published an article by Pella in support of an International Criminal Court. His significant contributions were eulogized in the Journal when he died a few years thereafter. Then he was largely forgotten, but not by me.
Shortly after my return to the U.S. in 1956, I called upon Pella’s widow, who lived near Fifth Avenue in New York. She was pleased to meet a former Nuremberg Prosecutor who was also an admirer of her late husband. We talked about his many writings that filled a tall bookcase in the small apartment. After a few such social calls, Mrs. Pella graciously asked me to accept all of his writings as a gift. She was disappointed when I declined her offer and suggested that his valuable works deserved a more suitable home in a university library. She then handed me a small round case containing a bronze medal. It had been given to her husband to commemorate a major anniversary of his leadership at a renowned international law society that he had founded. I cherished the medal and, many years later, presented it in Budapest to Professor Cherif Bassiouni of De Paul University. He had written or edited many books on the subject and was celebrating the 25th anniversary of his own Presidency of a similar international organization in support of the court. He promised to pass it along, in time, to a young scholar who might supplant him as the champion advocate for the Court. The commemorative medal, with its engraved artistic portrait of Pella in full diplomatic regalia, remains an indestructible reminder of an almost forgotten originator of an indestructible idea.
Johann Caspar Bluntschli came upon me by surprise. It was not that he pounced on my back, but I discovered some of his writings by chance while browsing in the old law library of the University of Heidelberg. He was a renowned Professor of International Law who died in 1881 at the age of 53. He had written approvingly about a Prussian army officer and friend, Franz Lieber, who, at the request of U.S. President Abraham Lincoln, had drawn up The Lieber Code that still governs the conduct of U.S. armies in the field. Bluntschli had also written about the rights of minorities, which was a courageous protest against the persecution of Jews in Romania. A small unknown pamphlet entitled “Gesamelte Kleine Schriften” (collected brief writings) caught my eye. In its pages there were copies of an exchange of correspondence between Bluntschli, the liberal German professor, and the Prussian military hero, Field Marshal Count Helmuth von Moltke. They had apparently been together at a grand ball where the Prussian had asked the Professor what he was up to. I found their exchange of letters most interesting.
In writing to the Field Marshal, Bluntschli described his plan that appeared in his large German book, International Law for Civilized States. It outlined the formation of a league of European states that would meet to settle all disputes peacefully. It was remarkably similar to what later became the League of Nations and the United Nations. Prussia’s highest military officer, reflecting views held by his “blood and iron” Chancellor Otto von Bismarck, replied with slightly disguised disdain, “My dear Bluntschli, what in the world are you talking about?” Von Moltke then went on to point out that war was humankind’s most glorious accomplishment. It gave men the opportunity to band together as comrades and to risk their lives gloriously for their fellow soldiers and their country. To deprive them of this thrill and fulfillment of their manly destiny was an intolerable thought. The scornful Field Marshal made plain that the only thing that mattered in affairs of state was power. According to the haughty Field Marshal, the novel plan put forward by Heidelberg’s most illustrious teacher of international law was an absurd and dangerous idea. Von Moltke’s point of view would have been, and probably still is, very popular in the Pentagon and other military headquarters.
I made copies of the correspondence and have the letters in my cabinet at home. It epitomizes the fundamental differences in opinion that prevailed before the First World War, and that were carried forward through the Second World War. These differences in perspective, which can be traced back to ancient history, remain to this very day. The plans and programs put forth by idealists like Bluntschli, in search of a more peaceful world order, were unable to persuade those in authority to do more than pay lip service to the noble aspirations. The League of Nations that grew out of the World War I, was an inadequate beginning that failed to prevent World War II. The formation of the United Nations was another noble effort that also failed to achieve its primary goal of saving succeeding generations from the scourge of war. The UN Charter mandates prohibiting the use of unauthorized military might, calling for disarmament, and an international military force were never even given a chance. Self-styled realists, like Bismarck, von Moltke, Stalin, Hitler, and a host of other misguided leaders in many lands, were convinced that military power held the only reliable answer to every international problem. Their antiquated and misconceived views have bathed the world in the blood of millions of innocent people everywhere. Who remembers Bluntschli? I do.
Pasted on a glass panel of a door leading into my study at home is a sign which reads: “HERE LIES TYCHO BRAHE AD INFINITUM.” That strange saying was put there about 30 years ago by our oldest daughter, who changed her name from Carol to Keri. I never met Tycho Brahe, who always called himself Tycho Brahe, and never read anything written by him. Yet he has had an important influence in my life. I came to know of him via a great man who sat on a bench. Not a park bench to be sure, but a judicial one. My most admired Judge was Benjamin Nathan Cardozo, who began his judicial career in New York and ended on the Supreme Court of the United States. The clarity and beauty of his legal opinions inspired my studies as a law student. I bought a used copy of a book he had written that included a commencement address to the Union Theological Seminary in the 1930’s. It was in Cardozo’s speech that I was introduced to Tycho, the Danish astronomer.
The story told by Cardozo is based on a poem by a quiet Englishman named Noyes, that inappropriately rhymes with noise. It appeared in a 1922 book called Watchers of the Skies. The book by Alfred Noyes was out of print, and I was pleased when a copy was given to me on my 70th birthday by our son Donald. The poem tells the tale of the Danish astronomer, who was supported by a wise old king who was eager to know more about the origins of the universe. A royal astronomical observatory was built for Tycho on the Isle of Wen, located near Elsinore, that was made famous by Shakespeare’s description of Hamlet’s father prowling around there on foggy nights. For many years, Tycho peered through his handmade telescope and marked the position of all the stars he could see in the universe—which, at that time, were not too many. These markings and movements he recorded on charts that were carefully drawn by his own hand.
When the wise old King passed away to his heavenly repose, the new young King sent his auditors over to the Isle of Wen to see what old Tycho was up to. They woke him, since, as should be obvious, astronomers work at night and sleep by day. “The young King wants to know where all this money is going,” was the likely demand. Tycho explained that he had already produced about 89 books of charts of the stars and that each one was guaranteed perfect. “But what do you hope to achieve?” “Well,” replied the patient Tycho, “if I live long enough, I hope to reach a hundred.” “But what is the use of it?” asked his irritated inquisitors. Then Tycho confessed that he had not yet fathomed the mystery of the stars. But he expressed confidence that, one day, someone would be able to detect the pattern and meaning of the universe. Of one thing Tycho was sure: he knew that, because of his own efforts, his successor would be saved twenty years of labor. In fact, the Tables of Tycho, as they came to be called, were used effectively by the first American astronauts who landed on the moon in 1970. I can not be sure that my work will be effective in charting the world toward a more peaceful future, but I do believe, as Tycho did, that I will save the ones who follow me a great deal of time and trouble before they reach that distant goal.
Story 62: Getting Down to Earth
Everyone should have some guiding stars, but it’s also important to keep an eye on the ground, or you may fall on your head. We all have dreams, yet to be called “a dreamer” is rarely considered a compliment. Progress has always depended upon dreamers being realistic. The scholarly books that I wrote between 1975 and 1985 were basically notebooks that reproduced the original documents on which my conclusions were based. They showed that every civilized society in history depended upon effective laws, courts, and enforcement for survival. My 1985 Common Sense Guide to World Peace summarized my suggestions and aspirations. My 1991 book PlanetHood proclaimed that it was possible to mange the planet earth so that all its inhabitants could live in peace and dignity. What was missing from my writings was a roadmap explaining how one goes about transforming that dream into reality. Could it be done? I refused to believe that humans were genetically incapable of behaving in a more humane way, and were doomed only to self-destruction.
It has often occurred in history that what was scorned as impossible is hailed as self-evident when it is finally achieved. No one could have predicted the current communications revolution. There was a time, not too long ago, when “reaching for the moon” was considered the ultimate absurdity. Now we are exploring distant planets in outer space. The Wright brothers were taunted that “If God meant men to fly, He would have given them wings.” Still, ignoring the ridicule, the determined pair kept pumping away on their old bicycle until, in 1903, it took to the air and transformed the world. For many months, in 1993, I rose at 5 AM in the morning and worked on a new book until 9 PM at night, pausing only for food and exercise. My wife noted that normal humans worked from 9 AM to 5 PM, and not vice versa. I think she was the only one who read my material carefully. She was concerned that I was losing my sight as well as my mind. I really couldn’t explain why I worked so long and so hard on such a seemingly hopeless endeavor. I was not sure that it would do much good, but I was firmly convinced that it would do no harm. So I took the optimistic option and just kept peddling.
The challenge of getting from the harsh reality of “here” to the dream of a more peaceful “there” was faced in my 1994 book New Legal Foundations for Global Survival. It was well received. Ved Nanda, renowned Professor at the University of Denver, in reviewing it for the American Journal of International Law described my plan for an improved world as “A masterpiece!” UN Secretary-General Kofi Annan sent a generous note that it was a remarkable book that supported everything the UN stood for. No one really expected the prevailing chaos in the world to be eliminated by a new blueprint, even if it contained a thousand footnotes and 500 volumes listed in the bibliography. The UN Legal Librarian, Britt Kjolstad of Sweden, who compiled the bibliography, said she was honored to have her name on a book of that quality. Since my Global Survival book can be found in many law libraries, and I am not sure how many readers could survive reading it, I will only sketch some of its major conclusions.
The historical review of international laws showed that international norms designed to maintain peace were gradually acquiring a mandatory character. My book cautioned, “It must be anticipated that the legal prohibitions against the use of armed might will be ignored by some well-armed or terroristic fanatics who are not prepared to be bound by the rules and who refuse to recognize the enormous perils of the nuclear age.” I argued that the pace toward peaceful change had to be accelerated. The medieval system of independent sovereign States was no longer suitable for a world that had become increasingly interdependent. The growth of democracy proved that sovereignty no longer belonged to ruling monarchs, who are above the law, but to the people they are supposed to protect. That’s what the American Declaration of Independence was all about. The courts at Nuremberg held, and the UN confirmed, that no nation and no person is legally entitled to commit aggression, genocide, or crimes against humanity. The ends will never justify such means. New institutions are needed to make the world function more effectively. Until such agencies are created with global reach and vision to peacefully ameliorate justified complaints, violence will increase rather than diminish. Relying on universal consensus before initiating vital changes is to condemn the world to stand still while waiting for its own annihilation.
Global Survival tried to encompass the entire panorama of world peace problems. It noted that the well-known shortcomings in the UN Charter could not be corrected as long as those in power continued to cling to the status quo. The founding instrument had to be interpreted in ways that enabled the UN Organization to carry out its original purposes. All that was suggested was that nations live up to their legal commitments. The book offered drafts of a dozen resolutions to strengthen the law, courts, and enforcement mechanisms needed to maintain peace. These included a clearer definition of aggression, an international criminal court, a new court of social justice, elimination of all weapons of mass destruction, creation of an international military force, and an improved Security Council.
My book showed that the nations comprising the Council failed to discharge their most important duty. They never gave the Charter a chance. They ignored vital provisions. The privileged five Permanent Members were urged to waive their unfair veto rights and to represent not merely their own nations, but the interests of people everywhere. Powerful world leaders who lacked the political will to make vital changes tried to justify their inaction by the refrain: “The time is not yet ripe.” The world has become too dangerous to leave peace to such politicians. I tried to bring home to them that they were not dealing with bananas. The voices of the people had to be heard loud and clear; only then would effective change be possible.
The challenge posed by Global Survival was whether human intelligence could overcome antiquated slogans and myths that threaten human survival. The only victor in war is Death. Yet, wars continue to be glorified. Many people still believe that the only way to protect national interest is through the use of military power. They echo the 1881 sentiments of Prussian Field-Marshal von Moltke that war “is a link in God’s world order.” These are self-styled “realists” who mock the “idealists.” The hard-liners must be persuaded that their militant policies are leading the world to ultimate destruction. After World War II, the victorious U.S. Generals Dwight D. Eisenhower and Douglas MacArthur, who would hardly be described as “dreamers,” were among countless other military leaders who joined in the denunciation of war as an instrument of national policy. In 1958, as President of the United States, Eisenhower declared: “In a very real sense the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.” The wise and conservative Professor Myres MacDougal of Yale postulated that today, no people and no nation can be secure unless all are secure.
People being ravaged by conflict, poverty, and disease are concerned primarily with staying alive. They cannot be expected to have the energy or ability to work for an improved world order. Many others are indifferent, skeptical, or even cynical about their capacity to influence the future. This “silent majority” becomes prey to those who still believe that warfare remains the ultimate national safeguard. The voices of the “idealists”—those who have an ideal—must be loud enough to be heard by those “realists” who hold the reins of power in their hands. People must have the courage to stand and speak up boldly for what they know is right. Moderation, compassion, and compromise must find a home in the human heart. In the nuclear age, every rational mind must recognize that law is better than war. Yet, gaining universal support for that obvious principle won’t be quick and it won’t be easy.
Hope is the engine that drives human endeavor. The first step in achieving any goal is to believe that it can be done. The next step is to make it happen! The frightened public will not remain indifferent forever to the broken promises on which they depend for their security and tranquility. Lincoln was right: “You can’t fool all of the people all of the time.” Educational institutions throughout the world are being mobilized to understand the requirements for a peaceful universe. Courses on human rights, that were unheard of fifty years ago, are now being taught in universities everywhere. Preaching hatred is being condemned as a crime. Religious congregations of all denominations must recognize their common advantage in fostering collaboration rather than conflict. Peace publications are proliferating and thousands of new Non-Governmental Organizations are campaigning for a more humane world. An enlightened public must make plain to the media, and their advertisers, that glorification of violence and killing is dangerous to their public as well as their purse.
Modern information technology and the free worldwide internet now offer educational tools that were previously unimaginable. President Ronald Reagan acknowledged that nuclear weapons can never be used; they are homicidal, genocidal, and suicidal. It should be possible to persuade those who support military budgets costing many billions of dollars that investing only a fraction of those sums to create new institutions that may help prevent wars is the best hope for avoiding atrocities and protecting the courageous young people who serve in the armed forces.
My book gave no assurance that the proposals contained therein would be attainable. No doubt, they are only a small part of a vast matrix of needed improvements, but what is suggested is no more complex than many past accomplishments. It is up to the people themselves to create the conditions for a more secure future. It is a call for bold new thinking and new action to avert disaster.
When New Legal Foundations for Global Survival was published, I asked the publisher, Philip Cohen of Oceana Publications, to keep the price down to encourage wider readership. He agreed and also promised a paperback. The 350-page book was initially offered for the relatively modest cost of $45. Very soon thereafter, the company was taken over by Philip’s son David who nearly doubled the price and rejected any thought of a less expensive edition. The wrath of Ferencz was upon him! I promptly arranged to print 2,000 copies in soft cover, and donated them to the World Federalist Association on the condition that they sell them for no more than $15, and the Federalists keep all of the proceeds. I do not know how many people were influenced by the book, despite the fact that my wife Gertrude thought that it was my most important work, and should be read by everyone. The torchbearers who never fail to strive for peace shall be rewarded by the knowledge that they participated in the race to save the human race.
After having completed what my protective wife hoped would be my last book, and being of an age where normal human beings would ordinarily have said farewell to this world, I decided that I would try to save some strength for my old age by concentrating on only two problems for the remainder of my life. Both of them related to what I had learned at Nuremberg in the wake of the Holocaust. I had been working on them for decades without seeing much progress. One was the establishment of an International Criminal Court to build on the foundation of the Nuremberg tribunals. The second was to outlaw war-making itself. Undaunted, I set about to achieve these seemingly impossible goals. I signed some of my letters, “The Man of La Mancha.”
Story 63: Reaching the Unreachable
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!
Story 64: Setting the Scene for Progress
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.
Story 65: What Really Happened in Rome
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.
Story 66: Misguided Fears About An International Criminal Court
The respected Head of the German Delegation, Hans-Peter Kaul, who was later elected a Judge of the International Criminal Court, taught me a German phrase that aptly describes the U.S. official position at Rome on July 21 1988. “Beleidigte Leberwurst” literally translated means “Insulted Liverwurst.” That quite ridiculous expression describes the angry little boy who, defeated in the game, picks up his marbles and stomps off in a huff. Despite many concessions made to keep the U.S. on the team, America’s defiant opposition succeeded in antagonizing the 120 nations that voted for the International Criminal Court. The United States was seen as a hypocritical bully that wanted to impose its views on the rest of the world. I remembered the stirring pleas at Nuremberg of Justice Robert Jackson and Telford Taylor who inspired the world with their calls for a new rule of law binding on all. I refused to believe that the American public, if properly informed, would reject the noble Nuremberg ideals that had earned the admiration of people everywhere.
The opposition to the ICC was led by Senator Jesse Helms, Chairman of the powerful Foreign Relations Committee. He would frequently begin a hearing by demanding of a witness, “Do you believe in Jesus Christ?” The distinguished Senator, who had been a sports reporter before being repeatedly re-elected by his constituents in North Carolina, apparently didn’t know or care much about the Constitutional requirements for separation of church and state. He was the darling “good ‘ole boy” of the conservative “Religious Right” whose interests he served faithfully and well. In bursts of patriotic fervor, he adamantly declared that no American would ever be tried by a foreign court. It was more than national pride or sovereignty that was at issue. Some of his less articulate supporters, of which there were many, cried out: “Our sov-virginity is at stake!”
Conservatives were determined to kill the new International Criminal Court while it was still in its infancy. The Pentagon, in the business of killing, eagerly joined the fray. They could see no advantage in creating a new and independent tribunal competent to judge the legality of actions by the military. Conservatives were mobilized to alert the public and warn them of the hazards that faced the nation. Helms introduced legislation that threatened economic and military sanctions against any state that cooperated with the court. His “Service Members Protection Act” endangered our service members more than it protected them. As we should have learned at Mogidishu, without an ICC, U.S. soldiers could be dragged through the streets, completely at the mercy of their captors. The Dutch ridiculed the new law as “The Hague Invasion Act,” since it authorized the President to “use all means necessary and appropriate” to free any American arrested on behalf of the Court. Every conceivable argument against the court was trumpeted throughout the land. Congressmen, hearing the clarion call, and understandably eager to show support for our men and women in uniform, rallied around the flag. They paid little, if any, attention to the fact that every argument made against the court was demonstrably false. The wrath of Ferencz was upon them!
I embarked on a one-man campaign, assisted by other concerned citizens, to tell the truth to the American public. I wrote articles, launched e-mail tirades, appeared on radio and TV, and lectured at universities and institutions, but it was no match for the propaganda coming from the Conservatives and the White House. The most persistent complaint was that an uncontrolled Prosecutor could bring unwarranted accusations against Americans, inhibiting our humanitarian or military goals. The truth is that no Prosecutor in human history has ever been subject to more controls than the Prosecutor for the ICC. The U.S. will always be given priority to try its own nationals. The Prosecutor cannot file any charges without approval by panels of judges. The Security Council can suspend prosecutions indefinitely. All proceedings must be open to public scrutiny. The over a hundred parties that have ratified the Statute have complete control. They include many staunch allies of the United States. A frivolous Prosecutor would be fired like a shot. Politicization of the Court would amount to its suicide. The “uncontrolled Prosecutor” argument is made by those who are fools or liars or both. It is a shabby pretext by those who seek to avoid the rule of law.
One day, I received a rather strange and unexpected phone call from Washington. It was from former Secretary of Defense Robert McNamara, whom I had never met. He asked whether I could draft an Op-Ed article for The New York Times which he and I could sign in support of the International Criminal Court. “Mr. Secretary,” I replied, “you must be aware that some people have been calling for your trial as a war criminal for having sent troops to fight in Vietnam even after it was clear that the war was lost. Why do you want to support the ICC?” He explained that if he had known that what he was doing might be illegal, he would not have done it. The Court was therefore important to put the public and officials on notice. I drafted the article which he quickly approved and it was published on the Op-Ed page on December 12, 2000. It urged President Clinton to sign the treaty setting up the International Criminal Court. On Sunday, December 31, 2000, his last day in office, President Clinton instructed U.S. Ambassador David Scheffer to proceed to the United Nations to sign the Rome Treaty. Israel followed suit. Senator Helms was livid. The Chicago Tribune quoted the irate Senator as saying, “I will make reversing this decision... one of the highest priorities of the new Congress; this decision will not stand.” The Senator from North Carolina, backed by the Pentagon, was declaring war on the ICC.
George W. Bush was elected President of the U.S. with the narrowest of margins. His political pollsters attributed the Republican victory to the vote of the Religious Right; Helms was their man. Friends of the ICC had to prepare for heavy weather, regardless of any effort to tell the American public the truth about the ICC. In February 2001, the prestigious American Bar Association, after extensive reviews, concluded that “The Security interests of the United States and of its service members and officials... are better protected if the United States joins the ICC than if we reject it.” A former State Department Legal Counsel and President of the American Society of International Law, assembled ten former Presidents of the Society to publish their conclusion that arguments against the Court were unfounded and unjustified. Democratic Senator Christopher Dodd of Connecticut, whose father Tom served at Nuremberg, and Democratic Senator Patrick Leahy of Vermont spoke out in Congress in defense of the Court, as did a few other courageous Congressmen. But they knew they were whistling in the wind. Even if the “Right Wing” was wrong, a conservative Republican President and a conservative Congress held the reins of power, and they called the tune.
No treaty could become binding without the advice and consent of two-thirds of the Senate. A President’s signature merely reflects an affirmation of support, not a legal obligation. Nevertheless, there was no limit to the rage of Senator Helms and his friends. On June 18, 2001 an Appropriations Act was amended to prohibit any U.S. funds being spent in connection with the ICC. Paying a cab fare to a UN meeting that dealt with the ICC could be illegal. It may have been good politics, but there was no real need for Helms to get so agitated.
On September 11, 2001 two hijacked U.S. passenger airplanes were used by 19 “suicide bombers” to crash into the World Trade Center in New York, causing the death if at least 3,000 innocent persons. Some Arab quarters rejoiced, but most of the world was shocked and outraged. The President declared war on terrorism. Although that sounded to me like declaring war on sin, the Republican Congress kneeled before the Republican President; the self-proclaimed Commander-in-Chief could do whatever he considered necessary to protect the terrified nation. Osama bin Laden, the leader of Al Qaeda, a loose organization of militant Moslem fundamentalists, appeared on world-wide television to boast of the successful attack. President Bush vowed to bring the criminal to swift justice. No mention was made of the International Criminal Court. Six years later, the suspect had not yet been apprehended.
Under its terms, the Rome Statute would only go into effect when, and if, it was formally ratified by at least 60 nations. On April 11, 2002, that number was surprisingly exceeded. There was a joyous celebration at the UN. The seat marked for the U.S. Delegate was empty. The U.S. deliberately flaunted its contempt by its absence. I felt ashamed that my country that was primarily responsible for the Nuremberg trials and had supported so many other international criminal courts, should now turn its back on the momentous occasion being celebrated by so many other nations. Knowing from respected opinion polls that the majority of Americans really favored an international court, I plunked myself into the chair behind the official sign “United States” and gave the V sign for victory. Although I had no official standing, I thought it would be OK since I was sitting down. As a precaution, I vacated the seat as soon as the meeting was called to order. I did not relish the idea of giving my opponents a “photo-op” of a former Nuremberg prosecutor being led out of a UN chamber in chains.
In May, 2002, Helms’ protégé John Bolton, then an Assistant Secretary at the State Department, sent a one-paragraph letter to the UN, declaring, “… the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature of December 31, 2000.” This unprecedented repudiation of a solemn Presidential commitment was another unnecessary slap in the face to the rest of the world. Amnesty International called it “a new nadir of isolationism and exceptionalism.” Richard Dicker of Human Rights Watch referred to it as “an ideological jihad against international justice.” I admit that their descriptions were more dramatic than “Beleidigte Leberwurst.”
Bolton went on a rampage to get nations to agree that they would never send an American to The Hague. If they failed to sign such an “immunity agreement,” all economic and military aid would be severed. In effect, such action would deprive our friends of funds needed to fight terrorists, drug traffickers, and other enemies. Secretary of State Condaleeza Rice, who always struck me as a rather sensible lady, almost had it right when she eventually tried to curb Bolton by warning that we should not adopt policies which would be “shooting ourselves in the foot.” It would be more accurate to say that we were shooting ourselves in the head.
Story 67: The Overdue Baby is Born
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.
Story 68: You Can’t Fool All the People
While the ICC was formulating rules of procedure and obtaining and training staff for the new tribunal, the attempts by the U.S. government to throttle the Court continued unabated. President George W. Bush continued to stretch his powers as Executive and as the new “Commander in Chief.” John Bolton continued to bully small nations into signing” immunity agreements” to exempt all Americans and their employees from the reach of the ICC. He was rewarded in August 2005 by being designated by the President to be the U.S. Permanent Representative to the United Nations. That position normally requires approval by the Senate, but Bolton’s appointment was sneaked through as an interim appointment when Congress was not in session.
My warning to the Senate Foreign Relations Committee and its Republican Chairman, Richard Lugar, was in vain. The Republican Congress, controlled by conservatives and intimidated by the Religious Right, was not inclined to challenge the White House. A new rule of law was invented for the Pentagon that prisoners of war need not receive humanitarian treatment if the captives are labeled “insurgents,” “terrorists,” or even “suspects.” Holding prisoners without filing charges or allowing legal representation, along with the abusive conduct of some of our military service members, brought the nation into further disrepute. There was no international court competent to judge the merit of such deeds or accusations.
In the House of Representatives, the all-powerful Speaker Thomas DeLay of Texas, ruled with an iron hand that gave him the nickname, “The Hammer.” He castigated the International Criminal Court as “a shady amalgam of every bad idea ever cooked up for world government... threatening the American people with prosecution by Kofi Annan’s kangaroo court.” He even denounced the ICC as a “clear and present danger to the war on terror.” In a stinging peroration recorded in the Congressional Record on July 15, 2004, he warned against allowing “American soldiers to be imprisoned and shipped off to Brussels without their constitutional rights.” It was not surprising that the House Leader should repeat the standard canards about the ICC, but at least he should have known that the Court was not in Brussels, but in The Hague, which is in another country. Reading his tirade made me ashamed that such men could sit in high positions in our government. Had the inmates really taken over the asylum?
The American public, eager to believe their elected representatives, and always supportive of our troops, went along with Congressional and Executive Branch abuses. But as Lincoln wisely predicted, “You can’t fool all of the people all of the time.” In the mid-term elections of 2006, the Republicans were swept out of power. The vitriolic Jesse Helms had disappeared from the political scene toward the end of 2005. His wife later confirmed that he was afflicted with “multi-infarct dementia.” Tom Delay, admonished by the House Ethics Committee in 2004 and accused of taking large sums as political bribes, was indicted in 2005; he was forced to resign in June 2006. Two of his aides went to jail in bribery scandals. As for the provocative Ambassador John Bolton, when it became obvious at the end of 2006, that he had no chance of being confirmed by the Senate, he resigned as the temporary Permanent Representative of the United States to the United Nations. His tenure there, and his virulent opposition to the ICC, had done nothing to enhance the soiled reputation of our country.
Story 69: Where the ICC Stands and Where it is Going
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.