LAW. NOT WAR.
Benjamin B. Ferencz

Lecture

International Trials for Internal Armed Conflicts

By Benjamin B. Ferencz
published:April 2001
source:Meeting of the American Society of International Law, April 5, 2001

By Benjamin B. Ferencz

Our assignment is to consider the past and the future of international law to see if history can guide us to new frontiers. Although I am better at predicting the past than the future, I will try to do both. Although I was not there personally, allow me to go back to Westphalia in 1648 for the origins of the current system of sovereign states. The Sovereign was to be above the law, free to do his will within his terrain without interference from other nations. That system of absolute power, where females had no rights, still guides many of our thinkers.

The horrors on the battlefield in the American civil war inspired President Abraham Lincoln to seek rules that would provide humanitarian conduct even during internal conflicts. The Hague Conventions, based on "Just War" theories, spelled out obligations for nations at war to protect non-combatants and to kill military adversaries in a more humane way. But it was not until the end of World War I that serious consideration was given to holding accountable in a court of law those leaders who were responsible for violating the rules by aggressions and atrocities on a scale not previously witnessed.

The Versailles Treaty called for the German Kaiser to stand trial before an Allied court, and to hand over hundreds of German officers accused of war crimes. A Head of State had never before been tried for the crime of aggression and Germany refused to honor its commitment. In the end, the Kaiser went scot-free and German officers brought to trial before a domestic court in Leipzig received mild sentences and were soon released. Disappointed legal experts of the League of Nations warned that next time it would be different. Future war criminals were put on notice. As World War II and its horrors unfolded, Hitler and his henchmen were repeatedly warned that they would be held to account in a court of law.

At the conclusion of World War II and the disclosure of indescribable cruelties and massive killings of innocent people on an almost incredible scale, the victorious Allied powers (U.S., U.K., France and U.S.S.R.) established the International Military Tribunal to hold accountable those leaders responsible for the offenses. Only three crimes could come within the jurisdiction of the IMT: 1- Crimes against Peace - waging a war of aggression; 2- Crimes Against Humanity and 3- War Crimes - violations of established rules and customs of warfare. In its comprehensive Judgment, the learned Tribunal confirmed that aggression was "the supreme international crime" but, because of a dispute regarding the placement of a comma rather than a semi-colon, the judges gave the benefit of the doubt to the accused and held that no Crimes Against Humanity could be punishable in the absence of a war. This meant that Nazi persecutions before the war - being internal in nature - were beyond the court's jurisdiction.

To avoid repetition of such a narrow interpretation, the Allied powers promptly enacted Control Council Law No.10 that made explicit that Crimes Against Humanity also covered cases of mass rape and torture and would be punishable even in peace time. Crimes of a magnitude to offend the conscience of humankind were criminal acts whether or not in violation of the domestic laws of the country where perpetrated. Subsequent trials at Nuremberg confirmed the broader interpretation which was also adopted for the ad hoc tribunal later established by the United Nations for crimes in Yugoslavia as well as the 1998 Rome statute for a permanent International Criminal Court. Whether the conflict is internal or external or how it is described by international lawyers makes no difference to the suffering of the victim who is killed, raped, tortured or brutally dispossessed. We must never forget that the ultimate goal is to create a more humane world where all human beings may live in peace and human dignity.

In the evolutionary path toward a universal rule of law, we are dealing with a newborn babe that must be helped on its way to maturity. The brief historical sketch shows that, despite difficulties and shortcomings, there has been steady progress. Courageous individuals have made a difference: Rene Cassin won a Nobel Peace Prize for the Universal Declaration of Human Rights. Rafael Lemkin coined the word "Genocide", Justice Robert Jackson, Telford Taylor and Judge Richard Goldstone have left their mark on international criminal courts. Tom Buergenthal (who is being honored here today) played a key role in advancing courts of human rights. These are only a few examples of farsighted thinkers I have been privileged to know during my lifetime. History teaches us that Individuals and non-governmental organizations play a vital role.

As an old soldier who fought in every campaign in Europe and who, as a war crimes investigator, witnessed first hand the horrors of the Nazi concentration camps, I am convinced that the time will come when the prevailing "war ethic" will be replaced. Progress toward a more humane world, where all human beings are entitled to protection in their fundamental rights wherever they are, is slowly emerging. In our interdependent world, linked by new networks of instant communication, and emerging democracies, the sovereignty of the state is slowly having to yield to the sovereignty of the individual. International trials for international crimes are becoming a reality.

It must become clear to everyone that law is better than war. Entrenched dogmas are destroyed by reason. No rational person today argues that the world is flat or that people should be slaves because of the color of their skin, or that colonialism is a good thing or that women should have no legal rights. We need new thinking and new legal institutions to enforce basic human rights. It can be done. Never give up, try harder! It must be done. It will be done! Since I am 81 years old, I can risk staking my life on it.

The future is in your hands! Good luck.


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