08 -11 Ferencz Closes Lubanga Case for ICC Prosecution
02 -11 Ben Ferencz in Boca Raton
06 - 08 ICC Jurisdiction over the Crime of Aggression
06 - 04 Tribute to Nuremburg Prosecutor Jackson
06 - 03 Ferencz Speech at Ocampo Swearing-in Ceremony
03 - 03 Remarks made at the opening of the ICC
04 - 01 International Trials for Internal Armed Conflicts
06 - 98 Creating A Permanent ICC
06 - 98 Ferencz Addresses Rome Conference
04 - 97 The Legacy of Nuremberg: International Criminal Courts
10 - 93 Remarks Made at Pace University School of Law
04 - 80 Legal Responses to the Afghan/Iranian Crises
08 -11 Ferencz Closes Lubanga Case for ICC Prosecution
May it please your Honors, TEST
This is a historic moment in the evolution of international criminal law. For the first time a permanent international criminal court will hear the closing statement for the Prosecution as it concludes it first case against its first accused Mr. Thomas Lubanga Dyilo.
I witnessed such an evolution. As an American soldier, I survived the indescribable horrors of World War II and served as a liberator of many concentration camps. Shortly thereafter, I was appointed a Prosecutor at the Nuremberg War crimes trials which mapped new rules for the protection of humanity. I was 27 years old then. I am now in my 92nd year, having spent a lifetime striving for a more humane world governed by the rule of law.
I am honoured to represent the Prosecutor and to share some personal observations regarding the significance of this trial.
The most significant advance I have observed in international law has gone almost unnoticed; it is the slow awakening of the human conscience. The 1948 Universal Declaration of Human Rights proclaimed inalienable, fundamental rights of “all members of the human family as a foundation of freedom peace and justice in the world.” Countless human rights declarations have been made over many years by many dedicated persons and organizations. But legal action to enforce the promises has been slow in coming.
In Rome in 1998, when the Statute that binds this Court was overwhelmingly approved, over a hundred sovereign states decided that child recruitment and forcing them to participate in hostilities were among “the most serious crimes of concern for the international community as a whole.” Punishing perpetrators was recognized as a legal obligation.
What makes this Court so distinctive is its primary goal to deter crimes before they take place by letting wrongdoers know in advance that they will be called to account by an impartial International Criminal Court. The law can no longer be silent but must instead be heard and enforced to protect the fundamental rights of people everywhere.
The Prosecutor’s Office spoke at length meticulously detailing grim facts establishing the responsibility of the accused for the crimes alleged. The evidence showed that waves of children, recruited under Mr. Lubanga’s command, moved through as many as 20 training camps, some holding between eight and sixteen hundred children under age 15.
Words and figures cannot adequately portray the physical and psychological harm inflicted on vulnerable children who were brutalized and who lived in constant fear. The loss and grief to their inconsolable families is immeasurable. Their childhood stolen, deprived of education and all human rights, the suffering of the young victims and their families left permanent scars. We must try to restore the faith of children so that they may join in restoring the shattered world from which they came.
Imagine the pain of mothers crying and pleading at the door of the camps still suffering and wondering what happened to their children. Picture the agony of the father who said : “[…] he is my first son. All of my hopes were laid on him. […]the child was ruined. […] Today he can do nothing in his life. He has abandoned his education. And this is something which affects me greatly.”
All of the girls recruited could expect to be sexually violated.
All of these events which the Prosecution has carefully presented have been proved beyond reasonable doubt. Once again, “the case we present is a plea of humanity to law.” It was a call for human beings to behave in a humane and lawful way.
The hope of humankind is that compassion and compromise may replace the cruel and senseless violence of armed conflicts. That is the law as prescribed by the Rome Statute that binds this Court as well as the UN Charter that binds everyone. Vengeance begets vengeance. The illegal use of armed force, which is the soil from which all human rights violation grow must be condemned as a crime against humanity. International disputes must be resolved not by armed force but by peaceful means only. Seizing and training young people to hate and kill presumed adversaries undermines the legal and moral firmament of human society.
Let the voice and the verdict of this esteemed global court now speak for the awakened conscience of the world.
02 -11 Ben Ferencz in Boca Raton
May it please your Honors,
After listening to that great introduction, you must have expected someone to come in here ten feet tall. Well, I used to be ten feet tall, but the problems of the world wore me down.
You've heard from two courageous young authors, Sandy Davies and David Swanson. Everybody's young compared to me - I'm going to start my 92nd year in a couple of weeks. They have the courage to speak out and call the government liars and then list the specifics about it. In my introduction to Sandy’s book, Blood On Our Hands, I asked: "Whose blood? On whose hands?" It's your blood, young people. And whose hands? Well, those who are responsible.
What can I tell you that may be useful to you? I will try to give you my personal impression of how it is that we get ourselves into this predicament. I witnessed the horrors of World War Two. I was honorably discharged as a Sergeant of Infantry, and the War Department awarded me five battle stars for not having been killed or wounded. I had seen horrors which are really indescribable - the inhumanity of human beings to other human beings.
The first thing to understand is the mentality of those who made the war and the atrocities possible. The crimes of war are not limited to one particular country or one type of person. And I thought I'll talk to you about someone you've probably never heard of and a trial you've probably never heard of before. I was the Chief Prosecutor in a murder trial that convicted, 22 defendants convicted of murdering in cold blood over a million people, including hundreds of thousands of children, shot one at a time. What kind of people can commit such abominable crimes and for what reasons?
The lead defendant was a gentleman was SS General Otto Ohlendorf, Doctor Otto Ohlendorf, father of five children. He was polite and I'm sure he was kind to his cats and dogs. He sent his top secret reports to SS Headquarters in Berlin, saying how many Jews , Gypsies and others his men had killed in which town as the Wehrmnacht advanced into Poland and the Soviet Union. Unfortunately for them, we fond the complete daily top- secret reports of the massacres.
The quadripartite trial by the International Military Tribunal (IMT) at Nuremberg in 1946 was followed by a dozen lesser-known subsequent proceedings designed to reveal the involvement of broad segments of German society in the commission of Nazi crimes. The man in charge of these subsequent trials, which followed the IMT trial where Robert Jackson was the Chief Prosecutor, was a distinguished lawyer, General Telford Taylor. We discovered this set of reports from these killing squads called Einsatzgruppen (literally Action Groups), which was a name deliberately designed to disguise their mission, They were composed of four units totaling about 3000 men assigned to follow the German troops into Poland and Russia and annihilate all the Jews, as well a Gypsies and some others. I was in charge of the US army office in Berlin assigned to collect evidence for the additional Nuremberg trials. I presented the newly discovered evidence to General Taylor and urged that we start a separate trial against the Einsatzgruppen mass murderers. Taylor recognized the significance of the evidence but was hesitant. "We haven't prepared it. The Pentagon hasn't approved it. We don't have staff. We can't do it." I replied, "You can't let these murderers escape."
I had won a scholarship at Harvard Law School on my exam in criminal law. I had always been interested only in crime prevention as a career. Taylor asked: "Can you do it in addition to your other work?" And I said, "Sure!" So I was appointed Chief Prosecutor, I rested my case in two days. We gave the defendants copies of every piece of evidence we intended to produce. Their arguments in rebuttal took about five months. Their alibis didn't stand up.
The lead defendant, Dr. General Otto Ohlendorf, explained why it was that he reported that 90,000 Jews had been eliminated, they never used the word "murder" - He calmly declared that it was necessary in self-defense...
"What do you mean, 'self defense'? Germany attacked Poland, Norway, Holland, Sweden, and France, etc. Nobody attacked Germany. Where's the self-defense?"
"Well," he said, "we knew the Soviets were planning to attack us, so we had to attack them in self-defense."
"Well, why did you kill all the Jews?"
"Well, everybody knows the Jews were in favor of the Bolsheviks, so you have to kill all the Jews too."
"Why the little children? Why did you kill all the little children?"
"Well, if they grow up and they become enemies of Germany when they find out what happened to their parents that would be dangerous a threat to our long-range security, so we'd better get rid of them too."
He was saying to me, "Don't you see the logic of it all?" And so he explained that.
I said, "Didn't you have any qualms about killing all these people, little children and all that?"
"No," he said, "because we relied on the head of state, Hitler. He had more information than I had, and he told us that the Soviets planned to attack, so it was necessary in presumed self-defense."
In our military jargon, we call such assaults a "preemptive first strike", The US military policy today does not preclude first strike by the United States in order to prevent a presumed attack from another side. That Ohlendorf argument was considered by three American judges at Nuremberg, and they sentenced him and twelve others to death by hanging. So it's very disappointing to find that my government today is prepared to do something for which we hanged Germans as war criminals.
After long deliberation, I concluded that the best and perhaps the only way to prevent mass atrocities was to stop war-making itself. Stop war-making?. Well, how do you stop war-making? Is it possible?
I began to study that subject in great detail. My conclusions are laid bare in my books, articles and lectures,. They are available free on my web site. I learned that, if you want to have a peaceful society, any society, whether it is in Boca, or in the United States or in the world, you need three components. You need laws, to define what's permissible and what's not permissible; you need courts, in order to determine whether the laws have been violated and to serve as a forum for settlements and you need a system of effective enforcement.
To the extent that you have all three of those components, you have relative tranquility. To the extent that they're absent, you have disorder. . Now, in Boca for example, you prohibit murder but some murders still take place. But how many more murders would you have if you said, "Well, murder is a crime, but it's not punishable - there's no court to punish you"? Would you have more or less murders? Of course you'd have more murders, You don't have to be a criminologist to realize that if you want to deter a crime, you must persuade potential criminals that, if they commit crimes they will be hauled into court and be held accountable. It is the policy of the United States to do just the opposite as far as the crime of aggression is concerned.
Our government has gone to great pains to be sure that no American will be tried by any international criminal court for the supreme crime of illegal war-making. In condemning others for that crime we also proclaimed that the law must apply equally to everyone. It is carved on the entrance to our Supreme Court that promises "Equal Justice Under Law." Why dos the US foul its own nest by failure to uphold the principles of Nuremberg which inspired the world?
We must view contemporary problems in historical perspective. In the international sphere, international law is just beginning. Over half a century ago, I first began to suggest that we should have an international court to follow up after Nuremberg, The need was particularly obvious regarding the crime of aggression, since no nation or leader could be expected to indict himself. Powerful states are very reluctant to give up what they regard as sovereign rights to go to war whenever they think it serves their national interest. They do not yet recognize that sovereignty belongs to the people - as was proclaimed in the French and American revolutions.
Yet, we have failed to build the institutions which are absolutely essential for a peaceful world order. We are beginning to move in that direction. So don't be discouraged. I recall the names of people whom I knew, like Rene Cassin who won a Nobel Prize for his Universal Declaration of Human Rights, and Rafael Lemkin, who coined the word Genocide.. One individual, one brave person, can make a difference . We have two brave ones here, Sandy Davies and David Swanson, who've written good books. Give them to your friends. Give them to your enemies.
Progress is never made in a straight line. At the end of May 2010, I was invited by the German government to come to Berlin to be awarded the Iron Cross, which is their highest Medal of Honor. I had some hesitation in accepting it. On reflection, I decided that it would be unfair to rebuff the young generation for crimes committed by the Nazis 70 years ago. I was proud to accept the honor as a sign of recognition by Germany that the Nuremberg trials were fair and a contribution to world peace and human rights.
From Berlin I flew to Kampala, Uganda. to attend a two-week conference to review the Statute of the International Criminal Court. The United States had always been strongly opposed to including the crime of aggression within the jurisdiction of the ICC. They didn't want it listed as a crime at all. They did not succeed ,at least not completely. In 1998, the Rome Statute listed aggression as an international crime but did not give the court authority to try aggressors until certain onerous conditions were met;, including a new definition and added guarantees that Security Council rights would be respected. Despite concessions, the US voted against acceptance of the Rome Treaty when it was adopted overwhelmingly by 120 in favor with only 7 against, including the US and several that we had denounced as "Rogue States.".
As planned, the issue of aggression that had been deferred in Rome 1998 came up again in Kampala in 2010. It was sadly ironic that Germany, in awarding me their Iron Cross was, in effect, saying that the Nuremberg trials were right!" And what did the Americans say in Kampala? "Nuremberg? Forget it. That was then. Now is now. We don't want aggression in. We want it out." Now that scares a lot of people in the world because we are a very powerful nation. When the United States says "No" those who are recipients of economic and military aid from the United States, are not inclined to say "Yes". The issue of aggression was postponed again, this time to 2017 at the earliest. As matters now stand, the ICC has no authority to try anyone for the supreme crime.
Why is US taking a position which to many may seem hypocritical, arrogant and frightening.? Harold Koh, the State Department Legal Counsel is a very fine fellow and a good lawyer. He served as spokesman for the U.S. delegation of about 15 people. I had already written to the Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen. I noted that I heard a speech of his saying that he would rather deter a war than fight one. I agreed but pointed out that you can't deter a war at the same time that you tell the criminals that if they commit aggression there is no court competent to try them. A month passed before I received a reply. The Chairman praised me for my services to my country but noted that there were legal problems involved. He passed the buck to the State Department Legal Advisor.
The legal objections voiced by he United States are not persuasive. The ICC Statute says specifically that no one can be tried for aggression if his country has not ratified the Statute. Two-thirds of the US Senate has not agreed to reify the ICC Statute. If any nation is able and willing to try its own national for any crime listed in the ICC Statute, the ICC must give priority jurisdiction to that state. The ICC must also stop if the Security Council puts a hold on the proceedings. If the US is really worried about prejudiced ICC judges or unclear formulations all that is necessary is for Congress to add a sentence to our Federal Criminal Code, which says, "Any crime listed in the Statute of the International Criminal Court is punishable in the courts of the United States." US courts would have primary jurisdiction and the ICC would be cut out. Any competent lawyer can find fault and quibble about the language of any law. What is the US really worried about?
Conservatives like ex-Ambassador John Bolton and the late Senator Jesse Helms have said explicitly, "We're against the International Criminal Court. Who do they think they are to try us Americans? We are noble. We don't need or want foreign interference." They don't believe there is such a thing as international law and they don't want the rule of law to restrict their use of force to attain their particular goals. Politically, the US is a centrist country. To get two thirds to affirm a treaty is very difficult. I consider myself an American patriot. I came to America as an infant child, escaping from persecution and poverty. I'm eternally grateful to the United States. Tom Paine, who was buried near my home in New Rochelle made it clear that the duty of a patriot is not to say, "My country right or wrong," but, "I will support my country when it's right, but when it's wrong I will try to make it right." And that's what these two authors, Davies and Swanson have done
I've just about giving up on trying to persuade diplomats. I've given them a lot of pep talks. And they say, "Great! Great speech." I did it again at a Gala dinner before the opening at Kampala. I reminded them that over 50 million people had died in World War Two which prompted the world to create the UN and the Nuremberg Principles for a more humane rule of law. I asked by what right do we now throw that way and by what right do we betray the hopes of the young people that they won't have to go through the same thing?" Former Secretary-General Kofi Annan was there as well as the current S.G. Ban Ki Moon and many ambassadors. Many came up and slapped me n the back for a great speech. In the end, they followed the lead of the United States. Like the mice in Aesop's fables, mo one was ready to bell the cat. And so once more they postponed any further consideration of the crime of aggression until 2017 – at the earliest. Once again Power has triumphed over Reason.
So there we are. We have a difficult world, and really it's up to the young people to do something about it. Do what your heart tells you is the right thing - stop glorifying war. Do it as best you can. We are spending $2 billion every day on the military. We have a stronger military than every nation in the world combined. What for? No one wants the US to be the self-appointed policeman of he world. The country is on the verge of bankruptcy. We are denying people the elements of health and education by wasting our money on weapons of mass destruction that we cannot use. If you cannot reach and persuade politicians to reverse this disastrous policy, you may have to take to the streets. What else can we do?
America is a great democracy, and in every democracy it's normal, and it should be that way, that people have differences of opinion. But a democracy can only work if its people are being told the truth. You cannot run a country as Hitler did, feeding the public a pack of lies to frighten them that they are being threatened so it's justified to kill people you don't even know. You cannot do that. It's not logical, it's not decent, it's not moral and it's not helpful. When an unmanned bomber from a secret American airfield fires rockets into a little Pakistan or Afghan village and thereby kills or maims unknown numbers of innocent people, what is the effect of that?
Every victim will hate Americans forever and will be willing to die killing as many Americans as possible. Where there is no court of justice wild vengeance is the alternative.
I'm a law-man. I believe in the rule of law. I see that we are provoking what we condemn as dangerous terrorism. The country is terrified. The freedom from fear that President Roosevelt talked about doesn't exist in America today, Armies of airport guards check the shoes of old ladies to see if they've got a bomb hidden there. What have we come to? It's not my world any more. My future is behind me. But, for your sake, and for those who have grand-children, make up your mind. Speak up when you can. Talk to your Congressman. Talk to your friends. Talk to your enemies. It's up to the lawyers to lay down the rules and create the courts. We're doing that, slowly and with difficulty. We need help from the public. You are the public.
Good luck to you. Thank you. .
06 - 08 ICC Jurisdiction over the Crime of Aggression
I have just been informed that I have been drafted to say something. You will be happy to know I will not go into any of the problems with which you have been dealing because I hope you will settle them all, and when you come to the review conference you will present a package which represents the consensus of this body, which has been dealing with it for 10 years. If you do not do that, I am afraid they will refer it to another committee and, somehow, I have a suspicion, that I may not live all that long, until you get to the end of it.
I will confine myself to only one simple point. A decision was reached after World War II - where I fought as a soldier, and I know all the horrors of war as I am sure all of you here do - and it was a radial transformation in society in which warfare, which had always been glorified in the past, was condemned not as a national right , but as an international crime.
That decision, by the International Military Tribunal - and I was there as it was read - is being followed up by what you do here now. And you, finally, in Rome - it was a miracle of achievement - finally an International Criminal Court was established. And there it was: aggression is a crime. But no court can deal with it. That is rather sad. And it is not a very fitting tribute to those who died: about 50 million people, trying to stop war making. So it comes to me now, you are working on it (and I wish you the best of luck, and I hope you do, under the able chairmanship of our friend Christian Wenaweser). But I cannot avoid the thought: what happens if you do not? Suppose you do not reach agreement. Do you continue, after all these years - sixty years ago it was affirmed, unanimously, by the General Assembly of the United Nations, which affirmed the Nuremberg principles - if you still cannot do anything about it? It seems to be too absurd, as well as too sad.
So I come up with an interesting thought, which I leave you for consideration: in the event that everything else fails, what do you do then? My own personal feeling - I represent no organization, I represent nobody, I represent myself and suffering humanity - just cut off the second sentence of paragraph 5, which was inserted in Rome because they could not reach agreement. They said aggression is a crime, but we cannot reach agreement, so let us put it aside until certain other conditions have been met.
Many people hoped, those who believe in power and not in law, that the conditions would never be met. So far they have been proved right. The result is that any aggressor who wishes to commit the crime of aggression is at liberty to do so without any fear. There is no deterrent effect at all.
If, however, you eliminate the second paragraph, which was put in as a precaution, just to keep the Rome Conference from collapsing completely (and it was a wise precaution!). If you eliminate that and go back to your previous status, you had a statute, which I think certainly and fairly represented the interests of the principal considerations here, as the French delegate was expressing so cogently as I walked in a bit late - I'm sorry about that - this morning. We are trying to balance the position of a need for an independent tribunal with the responsibilities, which the United Nations Charter - fairly or unfairly - gives to a certain group of people to maintain the peace. This is the problem: balancing the two. You had it all in balance, except for the definition of aggression.
I personally sat in this building for 28 years and listened to them debate the definition of aggression, and finally they reached a consensus definition of aggression, in 1974, and everybody was very proud. And I think it was in this room that all the members of the special working group stood together - and the chairman very kindly invited me to come and stand with the group although I was the only person in the audience then, (now we have many NGOs, its wonderful) - and asked me to stand with the group and it was a consensus definition. It was a great achievement! And then I have heard a thousand times: there is no definition of aggression. What do you mean there is no definition of aggression? If it was good enough for Justice Jackson and for the French and the Russians and the British, at the International Military Tribunal, and it has been good enough for the Tokyo Tribunal and other tribunals and the International Law Commission? And it is suddenly not good enough to allow a fair trial under principles of legality? In fact, you do not need any more definitions. The Judges are quite competent to look at the precedents, and look at the history, and to look at all the treaties that have been enacted and to reach the right decision. Seeking a new definition is an excuse you are using for not going forward! Or you are falling into the trap or tying yourselves up with that.
They said: get a definition. Well you have a definition, you do not need it! The relationship between the Security Council and the International Criminal Tribunal - a very delicate, political problem, admittedly so - but it was more or less solved. You gave all the power away to the Security Council in Rome. Many of the powers; almost all of them. You lived with it then, why not live with it now?
So I come to my basic point: if you eliminate the second paragraph of article 5 - which says you cannot act on this crime - you do not have to change anything! Nothing!
Now, of course, all of the things you are talking about - clarifying article 121, whether it is section 3, 4, or 5, or whatever - very fascinating, very good. Leave it for professors to deal with. Leave it for the judges to deal with. You do not need it to go forward.
I ask you only one little thing. One little thing! And it does not take away anything from any interests, which are already in the statute. And that is: allow the Court to deal with the crime of aggression. It may be that the Security Council will never touch it. They might put it on the shelf - as has been pointed out by Portugal and by others - since the Security Council does not like to call people with aggression as they might be called with that themselves, so they put it aside. It may be that they will not act on it. But what has been the effect? The effect has been that a potential aggressor sees that he might one day be tried. That is a deterrent effect! And if you do not think so ask Mr. Pinochet. And if you do not think so read the secret minutes of the London Conference when the leading general says, 'I'm not going into Iraq unless I have a legal opinion, I don't want to be sitting next to Milosevic.' And we have it there. And we have it here with our colleague Elizabeth Wilmshurst, who walked out and said, 'I cannot any longer serve a government which is committing the crime of aggression.' So there is a deterrent effect, even if nothing further happens.
If you have no deterrent effect, if you do not take the lock off that door, you are not only not deterring them, you are encouraging them to commit more crimes. And that, I think, is not what you want.
So, if you want to get to where you are going, in the event you cannot get there by these means, I have a simple solution for you. Everyone can understand it. The Court is competent to deal with the crime. The details will be worked out later. The exact same solution you reached in Rome. Defer it for later consideration. What do you call it? The elements of the crime? Or if you call it a "refined definition." Or, whether you call it anything else you want to call it, deal with it later. The criminal knows he may be tried.
In addition to that, as a former prosecutor, and some of you may know (I do not like to repeat it), I was the chief prosecutor in one of the subsequent Nuremberg trials. I convicted 21 of the high ranking SS Officers of murdering over a million people in cold blood. I know the criminals; I know their mentality. I do not want to see anybody escape, and there is a way to avoid that: at the same time you charge the criminals with crimes against humanity - and that war making is a crime against humanity - you charge them also with war crimes. The criminal is in jail awaiting trail, you are preparing your case against aggression. If you first need Security Council approval wait for the Security Council approval - but what they cannot impose upon you (and do not tie the hands of the Prosecutor, as has been pointed out here) is letting the public know the truth. They have a right to know the truth! Those who are being sent off to kill and to kill others have a right to know the truth. Let the Prosecutor give the facts to the public. Then you will see the power of these young people who are waiting here now (and you heard a moving appeal from Robbie Manson of Wales). Think of those who died. Think of the future generations. The publicity and the new technological revolution will move the Security Council. And if they do not move, if there is enough of an outcry, there will be change.
It is not that you sit on your hands and a criminal walks free. On the contrary: you uphold the principle of Nuremberg, which was a tremendous step forward (do not throw that away or you are going back to pre-Nuremberg days and God help you!). Proceed on the other crimes as best you can, and postpone your other problems for later consideration. You do that, and I will go in peace.
Thank you very much.
06 - 04 Tribute to Nuremburg Prosecutor Jackson
The highest compliment we can render to the memory of Justice Robert H. Jackson, as we approach the 60th anniversary of the Nuremberg trials is, is to try to build on the principles of law that he espoused. In his oft-cited opening statement at Nuremberg, Jackson hailed the trial against the Nazi leaders as "one of the most significant tributes that Power has ever paid to Reason". His primary aspiration was to use the law as an instrumentality to curb aggression - "the supreme international crime". If war- making itself could be diminished or eliminated, that would surely be the greatest tribute man could pay to human reason. But where does Jackson's aspiration stand today?
The idea that aggression was a crime was not invented at Nuremberg. The illegality of war-making had been discussed in ancient times and was extensively debated at the League of Nations after the first World War. The German Kaiser narrowly escaped trial for aggression since no Head of State had previously been charged with that particular offense. Legal committees of the League gave notice, however, that in future it would be different. In the Kellogg- Briand Treaty of 1928, the world community renounced the use of force for the settlement of international disputes. During World War II, Allied leaders repeatedly warned that those responsible for violating laws or customs of war would be held to legal account. In 1945, as soon as Germany surrendered unconditionally, the four occupying powers (US, UK, USSR and France) began to set-up an International Military Tribunal (IMT) to bring the responsible malefactors to justice.
The proposal that Hitler and his top henchmen should be tried for the crime of aggression had been broached by Colonel William C. Chanler, a law partner of the United States Secretary of War Henry L.Stimson. The plan was approved by President Franklin D. Roosevelt Following Roosevelt's death, President Harry Truman appointed Robert H. Jackson, Associate Justice, who took leave from the Supreme Court, to represent the US in preparing the prosecution of Axis war criminals.
Jackson consulted the British, French and Soviets. The British had been eager to avoid protracted political debates by simply shooting prominent Nazi leaders. The Soviet representative argued that it had already been established that the leading Nazis were criminals and the only task before the IMT was to mete out the punishment. Justice Jackson retorted sarcastically that, if that were the case, why have a trial at all? Under Jaclson's persuasive influence, the rule of law prevailed.
On June 6, 1945, barely one month after the war had ended, Jackson reported to President Truman: "It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal." To support his conclusion that starting an illegal war could be condemned as an international crime, the eminent jurist cited the Kellogg Pact and many other accords that restricted the power of sovereign states to make war -- except in self-defense. He also appealed to "the common sense of justice". He argued that by enforcing emerging principles of international law, war "would be made less attractive to those who have the governments and the destinies of peoples in their power". Jackson's primary goal was to mobilize the force of law on the side of peace.
On July 16, 1945, a quadripartite committee of distinguished jurists began to draft the Charter whose principles and rules would govern and bind the IMT. Existing international law would have to be respected, Illegal military aggressions were given a new designation as Crimes Against Peace. Leaders would also be held accountable for planning or perpetrating large-scale Crimes Against Humanity, such as genocide directed against large numbers of persecuted innocent civilians. Outrageous war crimes that violated traditional rules of war would also be punishable. It was paramount that all of the accused should receive an absolutely fair trial.
Although Jackson felt strongly that the crime of aggression should be defined before the trial, he knew that committees of the League and drafters of the United Nations Charter had been unable to agree on that contentious subject. Time was of the essence. Jackson was prepared to accept language drawn from several 1933 Soviet treaties that condemned as the aggressor the State that had struck the first blow. Since nations can only act through their leaders, Jackson reasoned that the responsible individuals could be held to account for criminal deeds committed in the name of the State.
Jackson was dedicated to the principle that international law must apply equally to all nations. "I am not willing to charge as a crime against a German official acts which would not be crimes if committed by officials of the United States." In unforgettable phrases, he warned:"We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well". His goal was to have the IMT hold accountable only those leaders personally responsible for the crimes. "The guilt we should reach is not that of numberless little people...but of those who planned and whipped up the war."
On August 8, 1945, the Charter for the IMT was signed in London. Robert Jackson's signature "For the Government of the United States of America" led all the rest. In his opening statement before the IMT, Jackson denounced aggressive war as "the greatest menace of our time." He expressed regret that they had been unable to include an agreed definition of the crime in the IMT Charter, In conclusion, Jackson noted that "to start an aggressive war has the moral qualities of the worst of crimes..." He said he did not expect the Tribunal to make war impossible, but he did expect that its judicial action would put "international law, its precepts, its prohibitions and most of all, its sanctions, on the side of peace..."
Jackson's eloquent plea and the evidence to support his arguments were persuasive. In its judgement, the IMT held: "To initiate a war of aggression...is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of whole." The same view would later be confirmed by the International Criminal Tribunal for the Far East. It was also confirmed in the detailed judgment in the "Ministries Case" of the Subsequent Proceedings held at Nuremberg.
The IMT rejected the defendants' arguments that they were being subjected to ex post facto law. The learned judges observed that the equitable maxim that there could be "no crime without a law" was designed to protect the innocent who did not know that their deeds were wrong. The court held that the high-ranking defendants must have known that they were acting in defiance of law, as shown by the treaties and historical precedents prohibiting the use of force. Those, who, after careful deliberation, carried out a common plan and conspiracy to invade ten nations, including Poland, France, the Soviet Union, Denmark, Norway, Greece and others, were," by any permissible standard guilty of a Crime Against Peace." Eight of the accused leaders ,whose deeds met the strict standards of guilty knowledge and intent to commit the crimes, were sentenced to death.
Jackson's recognized that law must advance to meet the needs of a changing society. Offenses against "the laws of humanity" had frequently been condemned but there had never been such a clear articulation of the crime as in the IMT Charter. Jackson persuaded the international court to convict German leaders for Crimes Against Humanity but because of a glitch in punctuation and translation, it was limited only to outrages against civilians that occurred during the time that Germany was at war. Later statutes and courts would correct that restricted view to make clear that, no matter when or where such cruel acts were committed, those responsible would be held to criminal account - as Jackson had intended.
What was done at the Nuremberg trials between 1945 and 1949 was not "Victor's justice" but a determined effort, led by the United States, and inspired by Jackson's rhetoric and logic to create a world order governed by law rather than violence. His colleague and successor for twelve subsequent trials at Nuremberg, Telford Taylor, wrote: "Jackson worked and wrote with deep passion and spoke in winged words. There was no one else who could have done half as well as he." In addition to clarifying the scope of Crimes Against Humanity, Robert H. Jackson's greatest contribution at Nuremberg was outlawing the crime of aggression. In his final report to President Truman, Jackson expressed the belief of all those who shared in the work of the IMT that "at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right."
Implementing Jackson's Dream
The principles of law laid down by the IMT were reinforced in the dozen subsequent trials at Nuremberg headed by then General Telford Taylor, who later became a Professor of Law at Columbia University. A new Control Council Law, No. 10, enacted by the four powers on 20 December 1945, reaffirmed and elaborated on the IMT Charter. In four of the subsequent trials at Nuremberg, 52 defendants were charged with Crimes Against Peace and five of the accused were convicted. The German arguments of self-defense and justification were dismissed in carefully reasoned judgments that carried forward arguments that had been enunciated by Robert Jackson.
A Charter for the International Military Tribunal for the Far East was based very largely on the London Charter for the IMT for which Jackson had been the leading architect.
The Tokyo Charter made clear that a war of aggression could be either declared or undeclared. The Tokyo Tribunal, composed of judges from eleven nations, held the Charter to be a valid expression of existing international law. 28 high- ranking defendants were accused of Crimes Against Peace. Seven were convicted of conspiracy to wage wars of aggression. They were sentenced to death and executed.
When President Harry Truman addressed the United Nations on 23 October 1946, he called upon the world body to create an international criminal court where perpetrators of aggressive wars could be placed on trial. The IMT Charter was adhered to by 19 other nations. On 11 December 1946, the first General Assembly affirmed the principles of law recognized by the IMT Charter and Judgment - thus endowing them with universally binding legal force.
The U.N. set out to codify international criminal law. During the following years of the "cold war," various U.N. committees wrestled with the problem of defining the crime of aggression that would be in the forefront of any international criminal code. Finally, in 1974. a definition, reached by consensus, was adopted by the General Assembly. Its ambiguous phraseology reflected the hesitation of powerful states to accept international restraints on their use of armed force. Whether a State had committed aggression had to be determined by the Security Council "in the light of all the circumstances." Powerful nations were not yet ready to entrust their security to the decision of any international tribunal they could not control. Jackson's dream of world peace under law was applauded in principle but not accepted in practice. The world has paid dearly for the indecision of its political leaders. Wars continued as before and there was no tribunal that might deter the criminals.
In 1991, thousands of women were r aped during brutal armed conflicts in former Yugoslavia. In 1992, hundreds of thousands of civilians were butchered in internal strife in Rwanda - to the everlasting shame of the world community that might have prevented the genocide. Public outcry, particularly in the United States, was so loud and strong that, the UN Security Council was able to create two new ad hoc international courts to deal with those Crimes Against Humanity, These two international criminal courts - each created in a matter of weeks - are now headquartered in the Hague and are creating important precedents for the development of humanitarian law. They are building on the Nuremberg principles as enunciated by Jackson but they have only limited jurisdiction. Aggression was not an issue in the civil wars and the special ad hoc courts have no authority to deal with that crime.
In 1996, the International Law Commission, a body of independent experts, finally concluded work begun in 1947 on a code of international crimes. The crime of aggression, described as a "customary law crime" was included in the code but it was not defined. The legal experts reported that "[it] would seem retrogressive to exclude individual criminal responsibility for aggression (in particular, acts directly associated with the waging of a war of aggression) 50 years after Nuremberg. ..It should be left to practice to define the exact contours of the concept of crimes against peace..." Jackson's concept of "the supreme crime" was, in effect, recognized by leading experts as a peremptory international norm that was binding on all state. Even without a definition! But where was the tribunal competent to deal with it? The "supreme crime" lacked a Supreme Court.
A New International Criminal Court is Born
Creating special Security Council tribunals retroactively to punish a few international crimes committed in a limited area during a brief time-frame was not the most efficient or effective way to enhance universal law or deter future international crimes. Many States joined the call for the permanent international criminal jurisdiction that had been on the U.N. agenda every since the world body was formed. After many years of intense negotiation by various temporary UN Committees, the General Assembly finally created an open-ended Preparatory Committee for the Establishment of an International Criminal Court (ICC).Starting around 1995, a number of like-minded States, supported by a coalition of over a thousand non- governmental organizations from all parts of the world, became a driving force determined to move toward the mandated goal.
When the Preparatory Committee met in Rome in the summer of 1998 their goal was to bridge the hundreds of points of difference that still remained. Delegates came from countries with different legal and social systems and with different perceptions about how world peace could best be maintained. There was general agreement that the ICC should have jurisdiction over Genocide, Crimes Against Humanity and major war crimes, all of which were carefully defined. The most contentious issue related to the Crime Against Peace, which had been the heart of Jackson's achievements at Nuremberg.
Those who opposed allowing the ICC to deal with the crime of aggression argued that the 1974 consensus definition was too vague. It gave the Security Council discretion to determine whether aggression by a State had occurred. Criminal statutes had to be precise and interpreted narrowly. The UN Charter charged the Council with primary responsibility to determine the existence of an act of aggression. Without a prior Council finding that a State had committed the crime , it might be beyond the competence of the ICC to convict any individual for the offense.
Delegates also remained skeptical about the impartiality of a politically-minded Security Council that might undermine the Court's independence. It was agreed that the definition of the crime and the relationship between an independent ICC and the Council needed clarification. Many smaller States felt that they could not accept an international criminal court that had no authority to deal with "the supreme crime". They settled for a compromise. Further consideration of aggression would be deferred for at least seven years after the Statute received the minimum of sixty ramifications needed for the treaty to go into effect. At that time there could be an amendment conference which, if almost all States agreed, aggression, as well as terrorism and narcotics trafficking, might become punishable by the ICC. The hottest issue was thus put on ice.
In the late evening of 17 July 1998, the exhausted Delegates from 120 nations, presented with the proposed compromise Statute for the ICC, voted "Yes". It was a remarkable historical achievement that owed much to the precedents laid down in Nuremberg more than fifty years earlier. The hall burst into wild and sustained applause. U.N. Secretary General Kofi Annan called it "A gift of hope to future generations" Unfortunately, seven nations, including the United States, and a few that the US had condemned as "Rogue States" , voted "No!".
The Rome Statute was in the form of a treaty that had to be accepted voluntarily by States that agreed to be bound by its terms. Under the US Constitution, no treaty can be ratified without the consent of two-thirds of the Senate. Senator Jesse Helms of North Carolina was Chairman of the Foreign Relations Committee. He was adamantly opposed to any foreign court ever having jurisdiction over any Americans. His view was shared by many conservatives who seemed to prefer the law of force to the force f law. The Defense Department wanted a free hand to intervene with unrestrained military might wherever it was deemed necessary for humanitarian, political or security reasons.
It had taken forty years to obtain the two-thirds consent needed to ratify the Genocide Convention proposed by the US in 1945. Many American Presidents, including the first President Bush, had spoken out clearly for the rule of law and supported the idea of an International Criminal Court. In September, 1999, President William Clinton, addressing the United Nations, called for the creation of an ICC. Just before leaving office, he directed that the treaty be signed as an indication that the United States was in principle in favor of such a court. Knowing that it would not gain the needed Senatorial consent, Clinton noted that improvements were needed and he would not submit the treaty for ratification. Leading bar associations and legal scholars supported US participation in the International Criminal Court. Conservatives who opposed the court rolled out misguided and non-persuasive arguments designed to kill the infant ICC in its cradle.
Following the election of George W, Bush to the Presidency, John Bolton, an Assistant Secretary of State and reputed protege of Senator Helms, filed notice with the United Nations on May 6, 2002 that "...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 on December 31, 2000." This unprecedented and unlimited repudiation of a solemn presidential commitment shocked all those who supported the ICC. A host of other measures were taken unilaterally by the US in Washington and at the United Nations to make sure that every American would be forever exempt from ICC jurisdiction. These attempts to provide immunity for all American citizens and their employees brought the US government into disrepute with nations determined to create a rule of law that would bind everyone equally. It was a repudiation of Justice Jackson, Telford Taylor and the most fundamental principles repeatedly espoused by the United States at Nuremberg.
Where is Jackson's Dream Today?
Despite the vehement and widespread opposition from the Executive Branch of the U.S. government, the ICC treaty passed the target mark of more than 60 ratifications on 1 July 2002 - much sooner than expected. Many of America's staunchest allies, including England, Canada and the European community have joined those who stand firmly for the ICC and the rule of law that binds everyone. The International Criminal Court now sits in a new courthouse in the Hague. Its bench is staffed by 18 eminent jurists elected by member States from all parts of the world. A distinguished Prosecutor, Luis Moreno-Ocampo of Argentina, a noted human rights advocate, has begun to prepare for trials of crimes within the ICC's limited jurisdiction. The United States has turned its back on the court. The seat kept open for an American representative to contribute to the further development of international criminal law remains empty. The voice of Justice Robert M. Jackson is missing.
Aggression is one of the four crimes listed in the Statute of the Court but the ICC cannot exercise its jurisdiction over that most dangerous and destructive of all offenses until and unless new agreements are reached. Only after 1 July 2009 will it be permissible to consider amending the ICC Statute. Despite Justice Jackson's report to the President of the United States that aggressive war-making would henceforth be treated as an international crime, and despite the affirmation of that conclusion by many courts and the United Nations, the only international court in the world that may be able to try aggressors for Crimes Against Peace is the International Criminal Court that now sits in the Hague, with its hands tied. How much more suffering must the innocents of this planet endure before decision-makers recognize that law is better than war?
Would the world not have been off if, after Iraq's 1990 invasion of the friendly neighboring Arab State of Kuwait, there would have been in existence a functioning International Criminal Court to bring to justice those leaders of Iraq who were responsible for the aggression, crimes against humanity and major war crimes?
Thousands of non-governmental organizations all around the world call out for support of the new criminal tribunal that now stands before us facing the opposition of a hostile US administration. It is high time for political leaders to heed the voices of the people. Until the sound principles so eloquently articulated by Justice Robert H. Jackson at Nuremberg are universally accepted and implemented, the world will remain a very dangerous place.
BENJAMIN B. FERENCZ
The author was a prosecutor at the subsequent Nuremberg war crimes trials.
B.B. Ferencz, Defining International Asggression - The Search for World Peace (Oceana, 1975) 2 volumes. (Includes many of the documents cited.)
B.B. Ferencz, An International Criminal Court- A Step Toward World Peace, (Oceana, 1980) Vol I.
Telford Taylor, The Anatomy of the Nuremberg Trials (Knopf, 1992)
Gabrielle K. McDonald and Olivier Swaak-Goldman, Eds. Substantive and Procedural Aspects of International Criminal Law, Vol.l. Chap.2, Ferencz, "The Crime of Aggression"pp.37-62 (Kluwer, 2000)
M.C. Bassiouni, The Statute of the International Criminal Court, A Documentary History (Transnational, 1998)
Historical Review of Developments Relating to Aggression, (United Nations, 2003, Official Document of the Codification Division)
B.Ferencz, "Misguided Fears About the International Criminal Court" Pace International Law. Rev. Spring 2003, pp.223-246.
06 - 03 Ferencz Speech at Ocampo Swearing-in Ceremony
Revised remarks of Benjamin B. Ferencz, a former Nuremberg Prosecutor as delivered at the swearing-in ceremony in the Hague of Luis Moreno Ocampo as Chief Prosecutor of the new International Criminal Court, June 16, 2003.
Thank you all for the honor of being allowed to share a few thoughts with such a distinguished audience. I wish I could pay tribute to each one of you who have worked so hard to bring this event about. We are assembled here to advance a noble goal.
Almost 400 years ago, a young Dutchman, who became known to the world as Hugo Grotius, was imprisoned for daring to advocate that all human beings had a moral right to live in peace under rules of binding international law. These principles became the guiding lights for the International Criminal Tribunals at Nuremberg that I had the privilege of serving over 50 years ago.
Today, a Chief Prosecutor for another International Criminal Court - the ICC - is being sworn into office. The world is fortunate to have found an outstanding human rights advocate, Luis Moreno Ocampo, to accept the heavy responsibilities that have unanimously been entrusted to him.
He does not have, as we did at Nuremberg, the power of mighty armies to support him. Nor will he have available the masses of incriminating evidence seized by victorious powers. On his shoulders will rest the difficult burdens of proving guilty knowledge and criminal intent of the accused. He must persuade judges coming from different legal disciplines. Finances will be limited and cooperation from national governments may be hesitant. He will. have to proceed cautiously and skillfully And all the world will be watching.
Nuremberg was little more than a beginning. Its progress was paralyzed by cold-war antagonisms. Clear laws, courts and a system of effective enforcement are vital prerequisites for every orderly society. The matrix for a rational world system has countless parts that are gradually and painfully being pressed into place. The ICC is part of this evolutionary process. It is a new institution created to bring a greater sense of justice to innocent victims of massive crimes who seek to live in peace and human dignity. That's what the ICC is all about.
It is understandable that not all sovereign states have yet accepted this new creation. They seem to prefer the law of force rather than the force of law. Their concerns are unjustified. There is no way to defend militarily against individuals who are ready to kill or be killed for what they perceive to be a struggle against injustice. A fair prosecutor and a wise court to determine what is permissible or impermissible is now available as a legal response to crimes against humanity. It is time to give law a chance.
I speak to you today in a purely personal capacity as one who served in the army of the United States during World War II and witnessed all of its horrors first hand. Another Nuremberg Prosecutor, Whitney Harris, is here with us today. I would never denigrate brave young people who risk their lives to serve their country or do anything to subject them to the risk of unfair prosecutions.
Those who scoff at the efforts and aspirations are entitled to have their views considered -- on the merits. I am convinced that this court and this Prosecutor will prove that their apprehensions are unjustified. In time, the world will come to support this court.
The United States took the lead in creating the International Criminal Tribunal at Nuremberg. A distinguished Supreme Court Justice, Robert Jackson, was given leave to serve as Chief Prosecutor for the United States. Jackson's' words still ring in my ears: "That four great nations, stung with injury, stay the hand of vengeance and subject their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason."
The next dozen trials at Nuremberg, conducted by the United States, made unmistakably clear that law must apply equally to everyone. At Nuremberg we spoke in the name of the American people and as representatives of the US government. The dream of a more peaceful world under law, that inspired the world at Nuremberg, will never die.
I recall an inscription over a portal at the Harvard Law library. It quotes a distinguished conservative statesman, Elihu Root, a former US Secretary of State and Secretary of War who was the founder of the American Society of International Law: "Make us effective," he said, " for the cause of peace and justice and liberty in the world." For me, that is the unforgettable voice of America.
I am confident that the time will come, in the not too distant future, when compassion, tolerance, understanding and a more effective rule of law will govern relations among nations and peoples. Today we have moved closer to that goal. I salute you all for your dedication, determination and accomplishment and to wish you well as you continue to advance toward a more humane and peaceful world.
To Luis I say "Buena suerte!" And I thank you all again. (Salute.)
03 - 03 Remarks made at the opening of the ICC
I have come to pay tribute to the Dutch government and to the many nations, organizations and individuals who have joined in creating the International Criminal Court. I regret that the United States is not among them. I come not to defend against an imaginary assault by the United States but to defend the rule of law as epitomized by the four international courts now established in the Hague.
Nearly 60 years ago, wearing the uniform of the United States army, I landed on the beaches of Normandy to fight for freedom and justice. I have seen horrors and devastation beyond human imagination. At Nuremberg, as a war crimes prosecutor for the United States, I peered into the remorseless eyes of mass murderers who deliberately slaughtered over a million innocent men, women and children. The victims were killed simply because they did not share the religion, race or ideology of their executioners. From this trauma came a relentless determination to strive fora rule of law where all could live in peace and human dignity, regardless of their race or creed.
After some forty-million people had been killed in World War II, the victorious powers, led by the United States, agreed upon new rules "to save succeeding generations from the scourge of war." The use of armed force was specifically outlawed, except in self-defense against an armed attack, or when mandated by the Security Council. These Charter provisions became, and remain, international law binding on all nations. We owe it to the memory of the dead to honor these commitments to peace.
In addition, certain binding legal principles, affirmed unanimously by the UN, emerged form the Nuremberg trials. Innocent civilians would be spared. Only leaders who were found guilty after a fair trial would be held responsible. Aggression, genocide, war atrocities and crimes against humanity would never again be allowed to go unpunished. It was made absolutely clear that law must apply equally to everyone. Putting the captive enemies on trial was seen by America's Chief Prosecutor, Justice Robert Jackson, as "the greatest tribute that power has ever paid to reason." His successor General Telford Taylor, my chief and later law partner, was more succinct: "Law is not a one -way street."
The current leadership in the United States seems to have forgotten the lessons we tried to teach the rest of the world. As Germans learned to their sorrow during the Nazi period, accepting the doctrine: "My country right or wrong" is a recipe for disaster. The true patriot will support his country when it is right and have the courage to stand up and help it find the right path when it has gone astray.
The reasons given by the United States to oppose the ICC are not shared by other nations and are not persuasive. The public should be told the truth. There are more controls on the ICC prosecutor than on any other prosecutor in human history. The ICC provides more protection of human rights than contained in the US Constitution. No person and no nation has a sovereign right to commit genocide or crimes against humanity. The innocent need never fear the rule of law. American Bar Associations and leading jurists all agree that it is in the interests of the United States to accept the international criminal court. In a democracy, sovereignty belongs to the people and is not impaired by accepting rules of the road that benefit everyone. Opinion polls show that most Americans support the ICC. and the rule of law. The government should heed the voice of the people.
America is a great democracy and it is inevitable that there will be honest differences of opinion. Some believe only in the law of force. They are the realists who have given us this world filled with fear. They are trying hard to kill the ICC, by fair means or foul. Others believe in the force of law. Of course, improvements are needed. But the ICC is a new born babe and it must be helped to maturity. We must give law a chance. Arrogance and threats do not encourage friendships. The trash cans of history are filled with the ashes of nations that were the superpowers of their day. It should be clear to all that law is better than war.
Let me close by citing only two very distinguished Americans. On May 15, 1958, my Supreme Commander in war, General Dwight Eisenhower, after he became President of the United States warned" "If civilization is to survive, it must choose the rule of law," Another distinguished Republican President said: "We have before us the opportunity to forge for ourselves and for future generations, a new world order, a world where the rule of law, not the law of the jungle, governs the conduct of nations." These words came in the Address to the Nation on Jan. 16, 1991 by US President George Bush. I think the current President would do well to listen to his papa.
04 - 01 International Trials for Internal Armed Conflicts
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.
06 - 98 Creating A Permanent ICC
source: Official Document, UN Speeches, June 16, 1998
I have come to Rome to speak for those who cannot speak - the silent victims of monstrous evil deeds. The only authorization I have comes from my heart. I have spent a long life in pursuit of peace and justice and perhaps by sharing a few thoughts I may lighten some difficult burdens.
Over fifty years ago, I stood in a courtroom at Nuremberg and accused 22 high-ranking German Storm Troopers of deliberately murdering more than a million men, women and children. The defenseless victims were slaughtered simply because they did not share the race or creed of their executioners. I begged the tribunal to affirm the legal right of every human being to live in peace and dignity. It was a plea of humanity to law.
The war crimes trials after World War Two came to grips with the past. We have yet to come to grips with the future. When the Nuremberg principles were unanimously affirmed by the United Nations in 1947, it carried an implied promise that "never again" would aggression, war crimes and crimes against humanity go unpunished. The promise awaits fulfillment.
I have come to Rome to plead with the distinguished Plenipotentiaries to help make the dream of a more humane world order under law come true.
Nuremberg was the beginning of a process. Failure to build on its precedents has cost the world dearly. The Security Council has demonstrated that competent ad hoc criminal courts can be created quickly - when the political will to act is aroused. Now the challenge is in your hands. Independent nations of different traditions can not be expected to have identical views on every point of a complicated legal statute. The time for decisive compromise has come.
Outmoded notions of national sovereignty can not be allowed to block agreement. National interests must take account of international needs. In this interdependent global society, linked by new networks of instant communication, no nation and no person can feel secure until all are secure. The people are the true sovereigns of today and deserve to be protected under a mantle of enforceable humanitarian law that clearly serves the interests of persons everywhere. We must not fail them now.
Ever since the judgment at Nuremberg, it has been undeniable that aggressive war is not a national right but an international crime. Aggression is the soil from which the worst human rights violations invariably grow. States that commit crimes against peace will not punish themselves and excluding aggression from international judicial scrutiny is to grant immunity to malevolent leaders responsible for "the supreme international crime."
Only the Court has authority to determine individual culpability or innocence. No criminal statute need reaffirm existing Security Council rights and no treaty can create new Security Council powers that go beyond Charter authorizations. Careful selection, internal supervision, public scrutiny and budgetary controls provide adequate guarantees that neither Prosecutors nor Judges will betray their trust. They must be given the authority and the tools to do their difficult job.
Universal condemnation and the certainty of punishment for major transgressors can be a powerful deterrent. To condemn a crime yet provide no impartial institution to try the offenders is to mock the victims and encourage more criminality. The time has come for human rights to prevail over human wrongs - for international law to prevail over international crime.
I do not suggest that an effective, fair and efficient criminal tribunal will solve the world's problems. A great deal more needs to be done before the causes of international crimes are removed. More progress is needed in achieving U.N. Charter goals for disarmament, an international military force, social justice and an improved and impartial Security Council. But one thing is sure - without clear international laws, courts and effective enforcement there can be no deterrence, no justice and no world peace. Justice, reconciliation and rehabilitation are vital links to the permanent peace that binds humanity together.
I have come to Rome to support you in your noble efforts. Hope is the engine that drives human endeavor and without hope humankind cannot summon the energy needed to achieve the difficult goals that lie ahead. Never lose hope. Never lose faith. Never stop trying to make this a more humane universe. The aspirations of today must become the binding law of tomorrow. If we care enough and dare enough, an international criminal court - the missing link in the world legal order - is within our grasp. The place to act is here and the time to act is now!
06 - 98 Ferencz Addresses Rome Conference
I have come to Rome to speak for those who cannot speak - the silent victims of monstrous deeds. The only authorization I have comes from my heart.
Over fifty years ago, I stood in a courtroom at Nuremberg and accused 22 high-ranking German Storm Troopers of deliberately murdering more than a million men, women and children. The defenseless victims were slaughtered because they did not share the race or creed of their executioners. I asked the tribunal to affirm the legal right of every human being to live in peace and dignity. It was a plea of humanity to law - a plea that needs repeating.
Unanimous affirmation of the Nuremberg principles by the United Nations in 1947 implied a promise that "never again" would aggression, war crimes and crimes against humanity go unpunished. War crimes trials after World W II came to grips with the past. We have yet to come to grips with the future.
I have come to Rome to plead for a more humane world order.
Nuremberg was the beginning of a process. Failure to build on its precedents has cost the world dearly. Once the political will was aroused, the Security Council was able - in 1993 and 1994 - to establish competent criminal courts quickly to bring perpetrators of genocide and crimes against humanity in former Yugoslavia and Rwanda to trial. But limited ad hoc courts created after the event is hardly the best way to ensure universal justice. A permanent court is needed for permanent deterrence. The time for decisive compromise has come. Now the challenge is in your hands.
Outmoded traditions of State sovereignty must not derail the forward movement. National power and privilege must take account of international needs. We all share one interdependent planet, linked by new networks of instant communication. No nation and no person can feel secure until all are secure. The silent voices of "We the Peoples"--who are the true sovereigns of today - cry out for enforceable law to protect the universal human interest. You have it in your power to make the dream of a more humane world order under law come true.
I have come to Rome to speak for peace.
Ever since the judgment at Nuremberg, it has been undeniable that aggressive war is not a national right but an international crime. War is the soil from which the worst human rights violations invariably grow. The UN Charter prescribes that only the Security Council can determine when aggression by a state has occurred but it makes no provision for criminal trials. No criminal statute can expand or diminish the Council's vested power. Only an independent court can decide justly whether any individual is innocent or guilty. Excluding aggression from international judicial scrutiny is to grant immunity to those responsible for "the supreme international crime" - omission encourages war rather than peace.
Carefully selected judges and prosecutors, subject to supervision, public scrutiny and budgetary controls, provide adequate guarantees that they will not betray their trust. They must be given the authority and the tools to do their difficult job. The certainty of punishment can be a powerful deterrent. To condemn crime yet provide no institution able to convict the guilty is to mock the victims and encourage dangerous unrest. Human rights must prevail over human wrongs. International law must prevail over international crime.
I have come to Rome to encourage your noble efforts.
A great deal more needs to be done before the causes of international crimes are removed. But one thing is sure -without clear international laws, courts and effective enforcement there can be no deterrence, no justice and no world peace. Justice, reconciliation and rehabilitation are needed to bind up the wounds of humankind.
Hope is the engine that drives human endeavor. It generates the energy needed to achieve the difficult goals that lie ahead. Never lose faith that the dreams of today for a more lawful world can become the reality of tomorrow. Never stop trying to make this a more. humane universe. If we care enough and dare enough, an international criminal court - the missing link in the world legal order - is within our grasp. The place to act is here and the time to act is now!
04 - 97 The Legacy of Nuremberg: International Criminal Courts
Since Professor Emeritus Blaine Sloan is a dear and admired friend who recruited me to serve as an Adjunct Professor at Pace Law School, it is a particular pleasure to be invited to deliver the annual lecture that bears his name. It is a singular honor to follow Sloan Lectures by my friends Professors Oscar Schachter, and Louis Henkin of Columbia, Michael Reisman of Yale and Stephen Schwebel, now President of the International Court of Justice, as well as other noted and distinguished scholars of international law. The topic I shall address is a contentious one but upon its successful resolution may depend the future safety and welfare of humankind.
PRELUDE TO NUREMBERG
1 - Early Roots
International law itself is of relatively recent origin. True it is that Plato and Aristotle and universalist scholastics like St. Augustine and Thomas Aquinas discussed the legality or illegality of war but these were futuristic musings more than reflections of an existing legal system. Hugo Grotius - "the father of international law" - recognized that peace and justice go hand in hand. He warned, in 1646, that "...the state which transgresses the laws of nature and of nations cuts away also the bulwarks of its own future peace." At the end of the 18th century, Immanuel Kant, Jacques Rousseau and other philosophers authored plans for perpetual peace but it was Jeremy Bentham who is credited with first use of the expression "international law" - little more than two-hundred years ago.
The American Revolution ushered in a dramatic era in the rule of law. Building on the emerging ideas of liberty and democracy, thirteen independent colonies in America cast off the yoke of the British crown and adopted a new legal system to regulate independent states with widely different social and political views. The people who adopted the Constitution agreed that it was necessary that many rights of sovereignty had to be ceded to a central government strong enough to execute its own laws by its own tribunals. The Constitution gave Congress broad authority to define and punish "Offenses against the Law of Nations". Ideas that inspired the legal system that had been evolving over centuries were gradually developed by experience and judicial interpretation. Paradoxically, acceptance of legal restraints opened liberating new horizons for humankind.
Just about one hundred years ago, in 1899, twenty-six sovereign states convened in the Hague in what was called "The International Peace Conference." The convocation was intended to end an unbearable arms race between Russia and France. Aside from hortatory declarations, the Hague conferees were not ready to curb their options to resort to force or to empower any impartial authority to maintain the peace. They did manage to agree upon a Convention with Respect to the Laws and Customs of War on Land. Upon closer examination, it did not inhibit war but merely urged future combatants to kill themselves in a more humane manner. It's preamble proclaimed that "population and belligerents remain under the protection and empire of the principles of international law, as they result from the usage established between civilized nations, from the laws of humanity and the requirements of the public conscience." What that meant was not spelled out and some of the "First Peace Conference" participants were soon killing each other in the same old way.
Because the Russians and Japanese were at war, the Second Hague Peace Conference had to be postponed. It was reconvened in 1907 and by that time, the number of states participating was increased to forty-four. The United States delegation, instructed by the distinguished Secretary of State Elihu Root, spoke out forcefully, as it had in 1899, in favor of settling international disputes by binding arbitration or judicial process. But, the call for third-party settlements was coupled with exceptions if the U.S. felt the issues involved "vital interests, independence and honor" or "purely American questions". Other nations expressed even more reservations and nothing significant came of the idea at that time. Nor was serious consideration given to the thought expressed by some that there should be an international criminal court. As French diplomat and Nobel Prize winner Leon Bourgeois, who had been at both Hague conferences, said: "We did not see clearly enough that in the society of States just as in relations of individuals there is no lasting peace without juridical organization..."
2 - World War I
The first major effort to curb international crimes by international law arose after World War I. In 1914, Europe, divided by competing military alliances was a powder keg waiting to explode. The fuse was lit when a Serbian nationalist assassinated Austrian Archduke Francis Ferdinand on the bridge at Sarajevo. Lacking any institution with authority to maintain peace, the disputing parties had no choice but to call upon their allies and resort to force. Without effective international law, the only alternative was war.
Germany launched an attack across the neutral territory of Luxembourg and Belgium. Soon the world was engulfed as twenty-three nations went to war against Germany and its allies. Despite ambiguous restraints enunciated in the Hague Conventions of 1889 and 1907, improved techniques and implements of warfare became more devastating than ever before. New weapons, such as tanks, planes, dirigibles and submarines, expanded the target areas and victimized civilian populations that were supposed to have been protected. Germany's use of poison gas and sinking of hospital ships evoked cries of outrage. By the time the war ended, losses were estimated at ten million soldiers dead, ten million civilians dead, twenty million dead from epidemic or famine and twenty million more wounded. All hearts cried out for a more peaceful world.
Reconciliation could not even begin without first bringing to justice those individuals whose unconscionable atrocities had violated the laws of humanity and who had been responsible for starting the war itself. The five victorious powers (France, England, Italy, the United States and Japan) convened a Peace Conference in Versailles in 1919 and appointed a 15-member Commission to Consider the Responsibility of the Authors of the War. After investigation and due deliberation, the Commission, chaired by U.S. Secretary of State Robert Lansing, concluded: "All persons belonging to enemy countries, however high their position...who have been guilty of offenses against the laws and customs of war or the laws of humanity are liable to criminal prosecution."
Although the Commissioners held that Germany had declared war in pursuance of a policy of aggression, they felt that a trial on that issue would be very prolonged and difficult since international law had not yet advanced to a stage where a premeditated war of aggression ("which the public conscience reproves and which history will condemn") could be treated as a punishable offense under established law. The Americans, in particular, argued that no international court had ever before tried a sovereign head of state for aggressive war. For the future, however, the Commissioners recommended that penal sanctions be provided "for such grave outrages against the elementary principles of international law."
To avoid allegations of ex post facto law, the German Kaiser was not charged with aggression but, instead, the Treaty of Versailles provided that he would be arraigned "for a supreme offense against international morality and the sanctity of treaties." Other Germans who had committed war crimes or atrocities would be handed over for trial by allied courts. But Germany refused to honor the treaty and Holland, noting that there was no competent international criminal court available to act on the basis of existing statutes making aggression by a sovereign punishable, refused to extradite the Kaiser - and he was never tried for anything. German officers who committed atrocities were not handed over either and got off with light sentences by a German court. The effort to deter aggression and war crimes by international law after World War I had gotten off to a slow start.
3 - World War II
Although world public opinion strongly favored President Woodrow Wilson's proposal for a League of Nations, isolationist sentiment by a minority of U.S. Senators blocked ratification of the plan and the United States was unable to join the League. Hoping that it might be able to become a member later, the U.S. became involved in all-important League deliberations. Determined to seek future peace through law, the League appointed an Advisory Committee of Jurists to draw up plans for the creation of a Permanent Court of International Justice. The Jurists, included Elihu Root and his very able assistant Dr. James Brown Scott, who had recommended such a court at the Hague Peace Conference in 1907.
The eminent Jurists favored an international arbitral court with compulsory jurisdiction and Mr. Root proposed that consideration also be given to the establishment of a High Court of International Justice "to try crimes against international public order and the universal law of nations." The idea of establishing such a criminal court before rather than after the crimes occurred had considerable appeal. But several members first wanted to know which crimes would be prohibited by "the universal law of nations". Root argued that definitions could be developed as the court expanded its jurisdiction. He asked the key question: "Are the Governments of the world prepared to give up their individual sovereign rights to the necessary extent?" The rhetorical question was left unanswered. Unfortunately for humankind, in 1920, the political leaders of the major powers quietly brushed the suggestion that an international criminal court be created aside.
A host of distinguished legal experts from all parts of the world continued to argue strongly for an international court with compulsory jurisdiction and a criminal court that could hold individuals responsible for acts that violated the peace and security of humankind. The Assembly of the League of Nations declared that "a war of aggression can never serve as the means of settling international disputes and is, in consequence, an international crime." The Kellogg-Briand Pact renouncing war as an instrument of national policy was signed in Paris in 1928 by most nations. That same year, the Pan-American Conference declared that " a war of aggression constitutes a crime against mankind." But nothing was done to create a criminal court to punish the perpetrators of the most serious of international crimes. In diplomatic chambers the whisper was heard: "The time is not yet ripe." Humankind would pay dearly for the indecision of the decision-makers.
Germany began to rearm and nations of Europe, clinging to old traditions, formed new military alliances as the preferred means to maintain peace. When King Alexander of Yugoslavia and the French Foreign Minister were assassinated by a Croatian nationalist while the King was on a visit to Marseilles in 1934, the world was rocked by outrage. But the League seemed unable to calm the nations involved and memories of 1914 evoked great fears. France quickly drafted legal conventions to prohibit such acts of terrorism and to establish an international criminal court to try offenders. The drafts were considered and revised by members of the League in preparation for a Diplomatic Conference expected in 1937 - presumably to approve the convention and create the court. By that time, however, passions had cooled. The only state to ratify the revised terrorism convention was India. No state ratified the Convention for an International Criminal Court. Not one. Inaction was an invitation to pending disaster.
Japan, after invading Manchuria, in violation of the Covenant of the League and the Kellogg Pact, had shown its contempt by walking out of the League in 1934. Italy committed brazen aggression against Ethiopia in 1935. The limited economic sanctions finally applied by hesitant France and England were too little and too late. In March 1938, German troops invaded Austria and in 1939 began its march of conquest over Europe. The League was helpless. Behind the Blitzkreig of the German tanks, Nazi extermination squads killed without pity or remorse every Jew, Gypsy or perceived adversary they could lay their hands on. In defiance of the accepted rules of the Hague Conventions, millions of civilians were forced into slave labor, millions of prisoners-of-war were murdered or starved to death while many millions more were simply annihilated in gas chambers and concentration camps. In 1941 Japan attacked the United States in a sneak bombardment at Pearl Harbor. Japanese troops engaged in massive atrocities in all the areas they occupied. It would require complete military defeat and unconditional surrender before anything could be done to bring the German and Japanese war criminals to justice. The long road to Nuremberg was being paved in human blood.
4 - Germany is Warned
The leaders of the United States, and Great Britain, beginning in 1941, repeatedly issued public warnings that German violations of the rules of international law would be punished and that superior orders would be no defense. A public declaration in London on January 12, 1942 by the "governments in exile" of nations overrun by the Nazis made clear that one of the principal aims of the war was "the punishment through the channel of organized justice, of those guilty or responsible for these crimes." Fact-finding Commissions were established and it was made abundantly clear to all who wanted to see that it was the Allied intent to bring to justice those who flouted established laws of humanity. The British government assumed that it was beyond question that Hitler and a number of other arch-criminals, including Italy's Dictator Mussolini, would suffer the death penalty. Rather than try such leaders in a long judicial proceeding, the British (noted for "fair play") felt that "execution without trial is the preferable course." The United State (noted for its "lawlessness") preferred the rule of law.
Secretary of War Henry Stimson, a former Wall Street lawyer, persuaded President Franklin D. Roosevelt that only those who had been found guilty beyond doubt in a court of law should be punished. The Soviet Government favored trials before special international criminal tribunals. Roosevelt and Britain's Prime Minister Winston Churchill spoke out clearly and eloquently, calling upon the German people to resist Hitler's crimes and leaving no doubt of the Allies intent to place on trial those leaders who were responsible for the aggressions and atrocities being committed.
Radio and press condemnations of crimes by the Japanese - their slaughter and rape of the Chinese at Nanking and "the brutal torture and murder by the Japanese, not only of civilians but of our own gallant American soldiers and fliers". The German people were explicitly told on March 24, 1944 that there would be an accounting for "the systematic murder of the Jews of Europe." Yet, the crimes continued unabated. It could not, have come as a surprise to any of the German or Japanese defendants to find themselves in the dock after the war and to have to answer for their deeds in a court of law.
THE NUREMBERG TRIBUNALS
1 - The International Military Tribunal (IMT)
It took just about six weeks of negotiation in London for the victorious allies, each represented by distinguished jurists, to reach agreement on a Protocol establishing the International Military Tribunal and defining its jurisdiction, powers and general procedures. Only three categories of crimes were to be punished: 1- Crimes against Peace (planning, preparing and waging aggressive war,) 2- War Crimes (such as those condemned in The Hague Conventions of 1899 and 1907) and Crimes Against Humanity (such as genocide,) which by their magnitude shock the conscience of humanity. Each provision of the 30-articles was carefully considered in order to reach an accord that seemed fair and acceptable to the four partners representing the United States, Great Britain, France and the Soviet Union. On the eighth day of August 1945, the Charter was signed and the first International Military Tribunal in the history of humankind was created.
On October 18, 1945, twenty-four major Nazi war criminals were accused of conspiracy to commit Crimes against Peace, War Crimes and Crimes against Humanity, as detailed in the indictment. A Chief Prosecutor had been appointed for each of the four victorious powers. The Chief Prosecutor for the United States, and the principal architect of the London Charter, was Robert H. Jackson, on leave from the US Supreme Court. He set the tone and goals:
"That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason...We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."
And so they did.
The trial was open for all to see. The record, in four languages, was available for all to read. The defendants were represented by able counsel of their own choosing. The judgment, handed down a year after the trial began, was clear, comprehensive and persuasive. It was rendered by prominent jurists of high caliber. The accused men, who were responsible for the cruelest crimes ever seen on the face of the earth, were given the kind of a trial which they, in the days of their pomp and power, never gave to anyone. It has withstood the test of time as a fair articulation of evolving international law.
In its comprehensive Judgment, the Tribunal traced the history of international criminal law and the growing recognition in treaties, conventions and declarations, that aggressive war was an illegal act for which even a head of state could be brought to account. There was no longer anything ex post facto about such a charge. Leaders who deliberately attacked neighboring states without cause must have known that their deeds were prohibited and it would be unjust to allow them to escape merely because no one had been charged with that offense in the past. "The law is not static" said the Tribunal, "but by continued adaptation follows the needs of a changing world." Aggressive war was condemned as "the supreme international crime."
The evidence, based in large part on captured German records, was overwhelming that crimes of the greatest cruelty and horror had been systematically committed pursuant to official policy. The IMT, citing The Hague Conventions and prevailing customs of civilized nations, rejected Germany's argument that rules of war had become obsolete and that "total war" was legally permissible. Regarding Crimes against Humanity (such as extermination and enslavement of civilian populations on political, racial or religious grounds,) the law took another step forward on behalf of humankind - a step that was long overdue. The findings and judgment of the IMT helped to usher in a new era for the legal protection of fundamental human rights.
The lead IMT defendant, Field Marshal Hermann Goering, after he was sentenced to be hanged, committed suicide. Hitler's Deputy Martin Bormann, who had mysteriously disappeared, was sentenced to death, in absentia. Other defendants were hanged or sentenced to long prison terms. Some were acquitted and released. The Charter was adhered to by nineteen other nations and both Charter and Judgment of the IMT were unanimously affirmed by the first General Assembly of the United Nations. They have become binding common international law.
2 - Twelve Subsequent Trials at Nuremberg
As the trial against Goering et al. was drawing to a close, it was recognized that crimes of such enormity could only have been committed in collaboration with large segments of German society. The four Allies, however, were unable to agree on joint subsequent trials. As a compromise, the quadripartite Control Council that governed Germany enacted a law authorizing each of the four Powers to carry on with such prosecution in its own zone of occupation as it might see fit. The United States decided to conduct a dozen subsequent trials in the Nuremberg courthouse.
The London Charter of the IMT, supplemented by Control Council Law number 10, provided the jurisdictional basis for the subsequent proceedings. The defendants included German doctors responsible for illegal medical experiments, lawyers and judges who had perverted their oaths and distorted law for Nazi advantage, high-ranking Wehrmacht and SS officers who were responsible for a host of atrocities, leaders of the Foreign Ministry who had aided and abetted Nazi plans for illegal conquest and industrialists who treated concentration camp inmates in their employ as "less than slaves." The Chief of Counsel was General Telford Taylor, a Harvard Law School graduate who had served with Justice Jackson. (We later became law partners in New York and Taylor went on to become a Professor of Law at Columbia University and Yeshiva University.)
In his 1949 "Final Report to the Secretary of the Army," General Taylor emphasized that the most important crime within the jurisdiction of the Nuremberg tribunals was war-making itself. In the "Ministries Case" it was held that the German conquest of Austria and Czechoslovakia (nations that surrendered without firing a shot,) constituted a crime against peace. Not only was it held to be criminal to conquer another country by military force, but it is no less a crime to conquer by overwhelming military threats. It was also made clear in Control Council Law No. 10 and some of the subsequent judgments (Einsatzgruppen and Hostages cases) that, contrary to the view of the IMT, Crimes against Humanity "are crimes against international law even when committed by nationals of one country against their fellow nationals or against those of other nations irrespective of belligerent status." Taylor correctly noted that the main achievement of additional war crimes trials was the further clarification and elucidation of international law. He cautioned that unless governments seriously endeavored to establish a permanent international penal jurisdiction, and to take steps to enforce the Nuremberg principles, the Germans would conclude that Nuremberg was: "for Germans only."
Please allow me a personal aside. General Taylor designated me the Chief Prosecutor for what was known as the "Einsatzgruppen Case." Twenty-two defendants were indicted in that trial - and convicted - of murdering over a million people. Thirteen of the accused, including six SS Generals, were sentenced to death; the others to prison terms. Relying on captured top secret German reports, I was able to rest the prosecution's case after only two days. The defense, with its alibis, denials and excuses went on for months before being refuted. A brief extract from the Opening Statement may reflect the spirit that animated the prosecution:
May it please your Honors:
It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women and children. This was the tragic fulfillment of a program of intolerance and arrogance. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man's right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.
After detaining some of the crimes committed by each defendant, I concluded with the warning :
The defendants in the dock were the cruel executioners, whose terror wrote the blackest page in human history. Death was their tool and life was their toy. If these men be immune, then law has lost its meaning and man must live in fear.
Those words were spoken on 29 September 1947. I was then 27 years old. It was my first case. (On 18 September 1997, it was quoted by President Antonio Cassese of the International Criminal Tribunal for Yugoslavia in concluding his Report to the General Assembly of the United Nations.) Now, more than 50 years later, I am still making a plea of humanity to law - a plea for a permanent international criminal court.
WHAT HAPPENED AFTER NUREMBERG?
1 - Tokyo and Other Trials
The International Military Tribunal in particular, and the twelve subsequent trials at Nuremberg laid the basic foundations for the later development of international criminal law. No sooner was World War II brought to a halt than the United States army conducted a number of war crimes trials held, symbolically, in the former German concentration camp at Dachau. (Perhaps it should be noted that I was a war crimes investigator during World War II and, as a Sergeant of Infantry, entered several concentration camps to collect evidence of the atrocities committed there. The searing horrors I witnessed certainly enhanced my determination to help create a more humane world.) The defendants put on trial by the U.S. army, even before the Nuremberg trials began, were captured Nazi officers and guards accused of responsibility for crimes committed in the camps. Also indicted were Germans who had committed atrocities against captured Allied prisoners of war. These proceedings were in the nature of traditional courts-martial or military commissions enforcing customary rules of war.
Similar war crimes trials took place in the zones occupied by the British, French and Soviet military governments. Many suspects were returned to the scene of their crimes to stand trial. The post-war German governments (East and West) later conducted a large number of "denazification" proceedings, war crimes investigations, and a considerable number of prosecutions against their own nationals. With the passage of time, such proceedings became increasingly difficult, and the number of convictions waned - as did the severity of sentences. Nonetheless, the published decisions, of varying quality and durability, added to the growing body of war crimes law and precedents.
Programs of restitution and compensation to Nazi victims, particularly by the West German government, helped to bring a measure of recompense to the victims. It was my privilege to direct the U.S. Military Government program to recover heirless property and to use the proceeds for the benefit of survivors. I helped to negotiate the so-called "reparations treaty" between West German, the State of Israel and a consortium of major Jewish organizations that I represented as Counsel. In that capacity, I organized and directed a vast legal-aid network throughout the world to assist needy Nazi victims with their compensation claims. These efforts helped to diminish bitterness and hatreds by demonstrating that - whatever may have been the shortcomings - an historic effort was being made to redress some of the damage done. Coupled with the attempt to bring major criminals to justice, the ultimate goal was to create an atmosphere more conducive to future peace.
While the Nuremberg trials were still in progress, a similar trial against Japanese Ministers, Ambassadors, Admirals and Generals was taking place in Tokyo. General Douglas MacArthur, as Supreme Commander for the Allied Powers in the Far East, appointed military tribunals to try Japanese leaders accused of aggression, war crimes and crimes against humanity. The court was composed of judges from eleven countries that had been at war with Japan. The trial before the IMT for the Far East (IMTFE) lasted more than two years and was the biggest trial in recorded history. All of the accused were found guilty and seven were sentenced to hang.
There were several dissenting opinions and Judge Pal of India argued that none of the defendants should have been convicted since all nations and leaders must share some responsibility for the war and its inevitable consequences. His thoughtful opinion argued that human compassion was an integral part of justice - reflecting the feeling that war breeds criminality and the only way to achieve justice is to maintain peace.
For many of the Japanese, the trials in the Far East were considered more vengeance than justice. They pointed to the atomic bombings of Hiroshima and Nagasaki as manifestations of U.S. inhumanity and hypocrisy. The residue of such sentiments continues to this day. Japan's leaders honor their war heroes but fail to compensate victims of Japanese atrocities. Post-war Germany provided over one hundred billion DM to indemnify victims of Nazi persecution. The United states provided compensation to its citizens of Japanese descent who were unlawfully interned as security-risks after the Japanese attack on Pearl Harbor. But the post-war Japanese governments have not yet fully come to grips with their past. They have even failed to provide compensation to the many women from occupied territories who were abducted to become what the Japanese euphemistically call "comfort women." There is nothing comfortable about being forced to submit to mass rapes in bordellos provided as recreation for Japanese soldiers. This shameful chapter of Japanese history has yet to be adequately redressed. Creating a world of justice and peace requires more dedication and effort than has thus far been demonstrated. Of course, victims of crimes against humanity, wherever they may be, should be entitled to appropriate compensation from those who caused the injury.
2 - The United Nations Steps In
The Nuremberg tribunals were dissolved and the Prosecutors went home. Only a small sampling of criminals (less than 200) could be brought to justice in the thirteen Nuremberg trials. It had been the pledge of both Justice Robert Jackson and General Telford Taylor, speaking as authorized representatives of the United States, that these trials were never intended to be "victor's justice" but were meant to marshal in a new era which made aggression, crimes against humanity and war crimes punishable under binding international law that would apply equally to all nations and their leaders. The instrumentality most competent to consider the implementation of a new rule of world law was the United Nations.
The first General Assembly of the new UN unanimously affirmed the legal principles laid down in the Charter and Judgment of the IMT: aggression, war crimes and crimes against humanity were punishable crimes for which even a head of state could be held to account. Superior orders would be no excuse but could be considered in mitigation. Inspired by the horrors revealed at the Nuremberg trials, the Assembly promptly passed another resolution calling for a convention to prohibit and punish the crime of genocide - by such tribunal as might later prove acceptable to the parties. Experts were soon designated to draw up a Code of Crimes against the Peace and Security of Mankind and to draft statutes for an international criminal court to punish such offenses.
Committees of distinguished jurists from many nations began to codify international penal law and to consider the establishment of a permanent international criminal court. Nations with different legal systems, cultures and perceptions had differing views as to what was appropriate, desirable or possible. Comprehensive drafts were debated in 1951 and 1953 but cold-war rivalries plus the reluctance of states to curb their sovereignty blocked effective action. The old excuse again heard from diplomats was that "the time was not yet ripe." The United Nations, of course, was completely dependent upon its sovereign state members. Many experts agreed that the differences could have been reconciled if there had been sufficient political will to do so. But, unfortunately, that decisive political ingredient was absent. The situation was further exacerbated by the "cold-war" between the capitalist United States and the communist Soviet Union and their respective allies. The result was that progress was stymied and the desired consensus was beyond reach.
To justify the inaction, it was argued that there was no need for an international criminal court until there was agreement on the code of crimes to be enforced by the court. Furthermore there was no possibility of agreeing on the code unless there was agreement on the definition of aggression - which was the most serious of all international crimes. Without such a definition there could be no code of crimes and without a code there was no need for a court. The only thing left to do was to try to reach agreement on the definition of aggression - which took about 25 years.
As the cold-war thawed, it was possible for the UN to reach a consensus definition of aggression in 1974. It wasn't a very good definition since, in order to reach consensus, it was necessary to include several clauses of such deliberate ambiguity as to allow states to by-pass the apparent restraints. The definition was intended as a guide to the Security Council that was vested with UN Charter responsibility for determining when aggression had occurred. In fact, the definition confirmed that only the Security Council had authority to determine that fact. The Council never relied on the definition and it was later argued that the definition lacked the precision required by a penal statute These flaws would not have been insurmountable had states really been willing to abandon aggressive war as an instrument of national policy - as required by the Kellogg-Briand Pact of 1928, and the UN Charter. But, all that could be achieved at that time was a willingness to resume work on the draft code of crimes and the international criminal court that had been lying dormant. The International Law Commission, a body of supposedly independent experts - not noted for their speed - was asked to resume work on those moribund projects. In the meanwhile, the world went back to killing as usual.
3 - Killing Fields Flourish
There is no need to recount here all of the instances since the end of World War II when nations and armies resumed their aggressions, crimes against humanity and war crimes. Since the UN Charter proclaimed its primary purpose: "to save succeeding generations from the scourge of war," over 100 million people have been killed in over a hundred armed conflicts around the world. . One need only mention names like Pol Pot, Idi Amin, Saddam Hussein and many others to conjure up images of Hitler, Himmler, and Stalin. Korea, Vietnam, Cambodia, Iran, Iraq, the Middle-East, Africa, Latin America, Europe, Afghanistan and many other places became killing fields where enormous numbers of innocent people were massacred, subjected to crimes against humanity and victimized by aggressions and war crimes while the international community stood helplessly by and let it happen - to their everlasting shame.
When Iraq committed brazen aggression by attacking its friendly neighboring Arab state of Kuwait, the United Nations Security Council - spurred by the United States with its enormous oil interests in the area - finally did what it was supposed to do under the UN Charter When its many resolutions calling upon Iraq to desist were ignored and flaunted, a flurry of new resolutions authorized an international military force (led by the United States) to use all necessary means to drive out the aggressors. After Iraq was routed, the Council imposed a host of new conditions designed to secure peace in the area in future. These included reparations to those who had been injured.
What was glaringly absent was UN action to bring to justice those who were responsible for the aggression, the crimes against humanity and the clear violations of the laws of war that accompanied Iraq's unlawful invasion of Kuwait. As should have been expected, the world community has had nothing but grief from Iraq ever since. Instead of following the Nuremberg principle of punishing only the guilty after a fair trial, UN economic sanctions were imposed on the civilian population of Iraq - many of whom might have disagreed with the aggressive policies of their government. Saddam Hussein, Iraq's despotic leader, remains at the head of the government and thumbs his nose at the world community's efforts to curb his production of weapons of mass destruction.. The lessons of Nuremberg seemed to have been forgotten.
The situation changed when, following the dissolution of the Soviet Union, former multi-ethnic Yugoslavia fell apart. Rival ethnic groups declared their independence as sovereign states and, around 1991, sought to unify or expand their national territories by force. Television broadcasts in 1992 vividly portrayed concentration camps in Bosnia and Serbia the likes of which had not been seen since Buchenwald and Dachau. Reliable newspapers reported that thousands of Moslem women were being systematically raped and then murdered by Croats or Serbs determined to clear the area for their own groups. A new phrase was coined - "ethnic cleansing" - to describe the brutal driving out of ethnic minorities from regions claimed by those of different religious persuasion or origin. There is nothing "clean" about the filthy practice reminiscent of Nazi genocide against Jews, Gypsies and others. Nor were the crimes limited to one side only. Finally, - unfortunately too late to prevent the crimes - the Security Council decided to act.
4 - The Security Council Acts
In 1992, the Security Council established a Commission of Experts to investigate evidence of violations of humanitarian law in the territory of the former Yugoslavia. Its Chairman, Professor M. Cherif Bassiouni of DePaul University, a distinguished expert on international criminal law, managed (under very difficult circumstances) to amass an enormous amount of evidence to document the reported atrocities. It was no longer possible for the world to do nothing. Having been humiliated by its failure to restore peace and arrest criminals in Somalia, the United States was not willing to send its troops into former Yugoslavia. But the time had come to apply the rule of law to punish past criminality and to deter future criminality in former Yugoslavia.
NEW AD HOC TRIBUNALS TO PUNISH WAR CRIMINALS
1 - The International Criminal Tribunal for Yugoslavia (ICTFY)
Once the political will to act was aroused, the UN Security Council was able to create the International Criminal Tribunal for Yugoslavia in very short order. Comprehensive draft statutes for such a tribunal had been prepared by the UN committees in 1951 and 1953 and expert groups had also detailed how such a court could be created. A Council resolution of February 22, 1993 (Res. 808) called upon the Secretary-General to submit statutes for an ad hoc international criminal tribunal within 60 days. It was done. The Tribunal came into existence on May 25. (Res.. 827). The new court, with its seat in The Hague, was the first international criminal tribunal since Nuremberg.
This is not to suggest that it was an easy birth. Quite the contrary. There were enormous problems of staffing, funding, training and obtaining cooperation and support and overcoming logistical, legal and procedural problems that no one could have foreseen. Difficult investigations, including exhumation of mass graves, the formation of sensitive units to deal with female victims and witnesses, (particularly in mass rape cases,) the assignment of competent defense counsel, translators, security personnel and administrators all presented novel problems that had to be overcome. And they were overcome.
The Tribunal was fortunate to obtain the services of Professor Antonio Cassese, a renowned international legal scholar of Italy, as President of the Tribunal. The first Chief Prosecutor, Richard Goldstone (who resigned and was replaced in October 1996 by esteemed Judge Louise Arbour of Canada) was a famous human rights advocate from South Africa. Eleven experienced judges, including Texan Gabrielle Kirk McDonald, came from different legal systems and their carefully reasoned opinions gave assurance of the high caliber of the new court.
The number of prosecutions by the ICTFY during its formative years has been limited. Only a few cases were completed and appeals are still pending. Most of the accused are still at liberty. But every newborn must first crawl before it can walk or run. Perhaps the biggest disappointment has been the failure of the Security Council to enforce its own mandates. High-ranking persons who have been indicted for genocide, mass killings, rape and "ethnic cleansing" continue to walk the streets of former Yugoslavia with apparent impunity. International forces assigned to maintain peace have recently made a few arrests but the Council has relied on the states concerned to apprehend criminals within their territories. Such states as the Federal Republic of Yugoslavia and Republika Srpska refuse all cooperation, arguing that, under their constitutions, it is illegal to hand their national over to a foreign court.
The ad hoc tribunal for Yugoslavia is an organ of the Security Council created pursuant to the UN Charter. All UN members are legally bound to support Charter mandates. That has not been done. . It sets a very dangerous precedent if the Council, to which the maintenance of peace has been entrusted, allows its orders to be flouted with impunity. The absence of any independent enforcement mechanism or financial resources seriously handicaps the new court. Nonetheless, in reporting to the United Nations nearly four years after the Tribunal was established, President Cassese described the Tribunal as "a vibrant, fully functioning judicial body." Let us hope that it will get even more vibrant with time. It is up to the public to demand of their political leaders that complete support, by every available means, be given to the ICTFY for it is opening a new legal horizon on which the peace of humanity may depend.
2 - The International Criminal Tribunal for Rwanda (ICTR)
In 1994, brutal civil war erupted between rival ethnic tribes in Rwanda. There were reports that perhaps half-a-million Tutsi and their supporters were being savagely massacred by the dominant Hutu government. The Security Council sent a small commission to investigate (Res. 935, July 1994) and it soon reported back that the crimes being committed were horrendous: many thousands of men, women and children being hacked to bits with machetes or bludgeoned to death with clubs in organized rampages of tribal animosity. It did not take the Council long to react to the public cries of outrage. United Nations forces were dispatched to Rwanda to help restore order to that battered country. Hutu guerrillas continued to battle a Tutsi army, while hundreds of thousand of refugees fled in terror. Once more the Security Council moved swiftly to create an ad hoc international criminal court to bring the wrongdoers to justice as a means of helping to maintain peace.
The Statute for the International Criminal Tribunal for Rwanda (ICTR) was adopted at the end of 1994 (Res. 955). It followed closely the general outlines of the ICTFY but was more explicit in assuring that even in a civil conflict violations of the rules of war would not be tolerated. The Court was authorized to prosecute for genocide, crimes against humanity and war crimes regardless of whether the strife was called an international conflict or a civil war. Because of the nature of the internal conflict, the inclusion of aggression as a crime within the jurisdiction of the court was not relevant. Only the specified crimes committed within the defined area during the year 1994 could be dealt with. The Rwanda court was thus a special tribunal of very limited jurisdiction.
To save money and personnel, the ICTR was to have the same Chief Prosecutor as the tribunal for crimes committed in former Yugoslavia and they would also share the same appellate chambers. Because Rwanda itself was largely devastated and lacked appropriate facilities, it was decided to locate the new ICTR not in Rwanda but in Arusha in neighboring Tanzania. The new government of Rwanda, now led by Tutsi, promptly arrested over 100,000 Hutu people and others, who were charged with genocide, mass rapes and mass murders. These suspects jammed the local jails of Rwanda that were totally inadequate. Few lawyers and fewer judges were left in the country. Those who had been victimized and seen their entire families wiped out by their neighbors of different ethnic affiliation demanded immediate justice; by which was meant death to the murderers. But neither the ICTFY in The Hague nor the ICTR (with one foot in The Hague and the other in Tanzania) allowed the death penalty, which had been outlawed by the European Convention on Human Rights. Meanwhile, rival militias were still fighting and hiding in refugee camps in neighboring countries where the killings continued.
Despite such enormous obstacles, the new government of Rwanda was thoroughly dedicated to re- establishing law and order in their devastated country. Minister of Justice Faustus Ntezelyayo and Chief Judge Kama met with supporters in Europe and appealed for help and guidance. They were determined to overcome the difficulties. In contrast to the ICTFY in The Hague, the Rwanda court had more suspects in detention than they could possibly cope with quickly. National courts began screening and classifying offenders according to the severity of their crimes before they could be tried by rather summary proceedings in local courts.
The administrative problems faced by the ICTR in Arusha were even greater than those encountered by the new Yugoslavia criminal court in The Hague. UN inspectors promptly dealt with allegations of improprieties and ineffective personnel were replaced. Undaunted, the ICTR began to conduct trials against some of the accused leaders in the court's custody. These international trials are now pending and witnesses are being heard in proceedings where the rights of the accused - some of high office - are being protected as well as the rights of victims and witnesses who cannot reveal their identities without jeopardizing themselves or their families. It is another on-going effort that illustrates humankind's determination to move - despite all difficulties - toward reconciliation, peace and justice by applying the rule of law.
Reports of similar atrocities in many other countries (Burundi, Algeria, Congo, for example) continued to appear in the media and pour into UN headquarters. The Security Council again considered the appointment of investigative commissions and the possibility of creating still another ad hoc criminal tribunal. Temporary tribunals, - created after the event, and with only limited jurisdiction to deal with a few crimes in certain areas and only within a limited time frame - are certainly better than doing nothing. But it is certainly not good enough. Law, to be worthy of its name, must apply equally to everyone, everywhere. What is needed now is a permanent international criminal court to condemn major crimes that threaten the peace and security of all human beings. It is the next logical step in the evolution of international criminal law. The challenge that now faces the world community is whether the time has finally come for the force of law to replace the law of force.
COURTING A PERMANENT INTERNATIONAL CRIMINAL COURT
1 - UN Prepares for a Permanent Court
We have noted that soon after the UN was formed, special committees began deliberations for the establishment of a permanent international criminal jurisdiction (as it was then called) and a code of international crimes to be enforced by a new international criminal court. These duties eventually devolved upon the International Law Commission (ILC) now composed of 34 legal experts from diverse regions. The initiative for putting an international criminal court back on the agenda of the United Nations came in 1989 from Prime Minister A.N.R. Robinson of Trinidad and Tobago, who had long been interested in the subject and who found that his country needed help in coping with international drug-traffickers. It was 1994 before the ILC, under prodding from the General Assembly, completed its 60-article draft Statute for an International Criminal Court. In 1996, it completed its Draft Code of Crimes Against the Peace and Security of Mankind. The necessary legal building blocks were thus put in place and the path was finally cleared for closing a glaring gap in the international legal order.
Beginning in 1994, the General Assembly established a number of successive committees to begin work on creating a permanent international criminal court, using the ILC draft as a basis. Of course, views varied and there was much hesitation about accepting such a drastic innovation.. Many small states did not see the relevance of such a tribunal and some powerful states were quite content with the existing legal order based on military might. But, as the issues were slowly clarified, and it became apparent that the Security Council, dominated by the "Big-5" with veto powers, could create ad hoc tribunals without further consultation, and that such "ad hocs" left much to be desired, the feeling began to grow that an independent permanent court set up before the crimes were committed would better serve the interests of world peace. By the end of 1996, the General Assembly was able to request the Preparatory Committee to negotiate a consolidated text of a Convention or Statute that could be widely accepted in a treaty creating a permanent international criminal court. Italy agreed to host the final meetings that would take place in Rome during June and July 1998.
To be sure, the differences in points of view among 185 members of the United Nations, - and their lawyers - remain quite substantial. Debates on the terms and terminology of the draft continued in intermittent but intensive sessions throughout 1996 and 1997 and will continue in the spring of 1998. Despite very skillful efforts by "PrepCom" Chairman Adriaan Bos, Legal Adviser to the Netherlands, delegates submitted a flurry of proposals for additions, clarifications, amendments or deletions. Even consolidated texts remained encumbered with brackets indicating absence of consensus on many points.
On the positive side it may be noted that, in recent negotiations, no state has taken the floor in opposition to the creation of an international criminal court. Practically all states agree that such a tribunal is desirable. U.S. President William J. Clinton, addressing the General Assembly on September 22, 1997, said:
"To punish those responsible for crimes against humanity and to promote justice so that peace endures, we must maintain our strong support for the U.N.'s war crimes tribunals and truth commissions. And before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law."
The United States UN Representative, Ambassador Bill Richardson, expressed the view of many when he said:
"The time has come to create an international criminal court that is fair, efficient, and effective, and that serves as a deterrent and a mechanism of accountability in the years to come."
How to formulate a statute that will satisfy the parties - including the skeptics - that the new international criminal court will be "fair, efficient and effective"? There's the rub!
2 - Major Points of Contention
(1) Who Has Priority, National Courts or the ICC?
There seemed to be general agreement that an ICC would have jurisdiction only where national courts were unable or unwilling to deal with the crime in a fair way. The delegates called this "complementarity" to emphasize the ICC was intended to complement and not replace national courts. But such major crimes as genocide, aggression, and crimes against humanity are almost invariably committed by or with the connivance of a national state - which can hardly be expected to try itself. The ICC must be authorized to determine when it has priority. Finding the proper balance and agreed formulations in an interrelated and coherent text presented continuing problems.
(2) What Crimes Fall Within the Jurisdiction of the Court?
All seemed agreed that the ICC should deal only with exceptionally serious crimes of major concern to the international community - so called "core crimes". The ILC draft listed only 5 categories of such crimes: genocide, aggression, serious war crimes, crimes against humanity and crimes established pursuant to nine specified treaties that had been widely accepted to curb war atrocities, terrorist acts (against aircraft, ships, diplomats or hostages) and drug trafficking. The inclusion of aggression and "treaty crimes" raised problems.
Some felt that aggression - which the Nuremberg tribunal had condemned as the supreme international crime - had not been adequately defined (despite the UN consensus definition of 1974) and that its inclusion might impair the independence of the court. It was feared that the Council might interfere with the ICC for political reasons. Germany, with strong support from many nations, proposed a compromise whereby the Security Council would, as the UN Charter requires, first have to determine that aggression by a state had occurred but any prosecution against individual leaders alleged to be responsible for the crime was to be left completely to the independent judgment of the ICC without any interference from the Council. Norway suggested that additions to the "core crimes" might be considered at a review conference in the future.
(3) Who is Bound by What?
There was general agreement that the ICC would be established by a multilateral treaty. Some argued that accepting the treaty automatically vested the ICC with authority to hold any of the signatory's nationals responsible if they violated any "core crimes". Others objected to such "inherent jurisdiction" and preferred the "opt-in" or "a-la-carte" system contained in the ILC Draft whereby, before ratification, a state might pick and choose which crimes it would declare to be binding on itself. This would, it was argued, encourage acceptability by more states and thus lead toward the desired goal of universality. Criminal Law expert, Professor Roger Clark of Rutgers University, appearing as the delegate of Samoa, asked how states could legally opt-out and avoid responsibility for crimes that were already universally condemned under common international law?
(4) Powers of the Prosecutor:
Many felt that the Prosecutor (male or female) should be given broad powers to investigate charges from almost any responsible source and decide ex officio whether indictment was warranted. Some argued that only state parties could lodge a complaint. Others, particularly those coming from continental law systems, wanted judicial review of the Prosecutor's discretion by some form of Pre-Trial Chamber in order to assure proper balance and protection of the defendant's rights. Renowned authority, Professor M. Cherif Bassiouni, as a delegate of Egypt, argued that such a judicial chamber would assure consistency and could help the Prosecutor in obtaining cooperation from reluctant states.
Guarding their traditional sovereignty, some argued that no prosecutions could be initiated without the prior consent of various concerned states: where the accused was being detained or where the crime had occurred, the victim's state, and the state of which the accused was a national. But if the states themselves were supporters of the criminal acts, these hurdles might prove insurmountable. Michael Keegan of the ICTFY pleaded for allowing the Prosecutor greater discretion. His colleague, William Fenrick, feared that if the Prosecutor had to obtain prior consent to on-site inspections or exhumations, local officials could frustrate vital investigations. Professor Clark warned about creating a "toothless" ICC.
The ILC draft - in a provision strongly supported by the United states and even more strongly opposed by many smaller states - prohibited any prosecution "arising from a situation" being dealt with by the Security Council - unless the Council gave its prior consent. This aroused suspicions and strong objections of many non-Council members who feared that the Council could paralyze the ICC and destroy its independence. Singapore suggested a sensible compromise: allow the ICC to proceed unless the Council decided otherwise. Greece added another useful safeguard: set a time limit within which the Council had to act or consent would be implied.
(5) Procedural Problems:
All agreed that the accused had to be guaranteed a fair trial. The ILC draft prescribed how the trial was to be conducted and the principles of law to be respected, such as the right of the accused to be present, to be presumed innocent and protected against double jeopardy or death penalty. But lawyers coming from different legal systems had different views about substance and wording. Many felt that such details could be left to the Rules which the ICC or the parties could later agree upon. Others felt that protecting the rights of the accused was paramount and could not be left to the later discretion of the judges.
3 - Where Do We Go From Here?
Many articles and issues of the ILC draft still remain to be clarified. If there is general agreement regarding changes to the ILC draft, the improvements should be made. Where general agreement is absent, compromise is vital. The search for consensus is desirable but it must not be allowed to become a trap in which the lowest common denominator becomes the norm. Nor should apparent unanimity be reached by adopting vague, exculpating phrases designed to enable states to avoid legal obligations which they purport to accept. Powerful nations are surely tempted to retain the advantages of power just as less powerful states understandably resent being deprived of democratic equality. No nation or person should be above the law and the innocent need never fear the rule of law. By accepting clearly binding minimum rules of the road, nations can better serve their citizens who are the real sovereigns of modern society.
The proposed treaty does not deal with the past but only with the future. It can go into effect only after a still-unspecified number of states have ratified it. It binds only the signatory parties, in accordance with the terms of their acceptance. Additional checks and balances already exist to prevent the tribunal from becoming an instrument of tyranny. Judges must be qualified and democratically elected, Prosecutors and other staff members who fail in their duty can be removed from office, budgets are subject to control, and proceedings must be transparent for the entire world to see. Possibilities for corruption, venality and inefficiency can be found in courts everywhere but to suggest that because abuses are imaginable courts should not exist is to doubt the rule of law itself. There must be greater confidence that judges and prosecutors will not betray their trust.
No provision is made in the statute for independent financing for the tribunal or enforcement of its judgments or decrees. These are obvious shortcomings that can only be overcome if one trusts in the good faith of the nations that are prepared to be bound by its terms. Other unanticipated defects will surely materialize but if there is confidence and good will they can surely be overcome. Those whom history has placed in a position to influence the future course of history must ask themselves what kind of a world they want. If the injustices and violence all around them distress them, they will decide that the time is ripe to act and the time to act is now.
An amazing number of non-governmental organizations from all over the world crowded the meetings of the PrepCom and submitted detailed proposals designed to enhance and expedite the work of the committee. They reflected the determination that people everywhere should be able to live in peace and human dignity under the protective shield of an independent system of criminal justice. Whether nations can meet the challenge by creating a permanent ICC remains to be seen when the conference of plenipotentiaries meets in Rome in the summer of 1998.
The Nuremberg Tribunals were a precedent and a promise. As part of the universal determination to avoid the scourge of war, legal precedents were created that outlawed wars of aggression, war crimes and crimes against humanity. The implied promise held forth to the world was that such crimes would be condemned in future, wherever they occurred and that no person or nation would be above the law. After half a century, it now seems possible that the promise may soon be fulfilled.
Out of the tragedies of war came the hope and expectation that lawyers and statesmen could fashion a new legal system to help curb ancient habits of cruelty and killing. People who had seen too much suffering were reaching toward a more tranquil world in which persons everywhere could feel more secure under a mantle of legal protection against the worst forms of violent abuse. Nuremberg and similar proceedings were part of a process reflecting humankind's slow and difficult movement toward a more humane civilization.
There can be no instant evolution. Old and revered traditions can only be altered slowly to meet new needs in an ever-changing society. The world stands poised on the brink of taking an important step to close a glaring gap in the existing legal order. With sufficient imagination and determination it is possible to reach widespread agreement on binding new rules for the safety and well-being of people everywhere. It is inconceivable that man can invent the means for his own destruction yet lacks the intellectual capacity to prevent it from happening.
To condemn massive atrocities without creating an effective method to apprehend and bring the criminals to justice is to mock the victims and encourage more criminality. Of course, it is necessary and useful that views of all nations are respectfully canvassed on issues that affect their welfare and independence. But the search for desired consensus must not be allowed to dilute and thereby undermine the vital substance of accords. Lawyers should deal with the heart of the problems and not be dithering about relatively insignificant details while humankind cries out to halt the incessant crimes against humanity. Do we need more Holocausts to prod us out of indecision?
Understandably, smaller nations fear that a politically oriented Council might jeopardize the independence of a permanent judiciary. To gain greater acceptance as the impartial guardian of peace, Council reforms will be required. Its composition must be more democratic and its privileged vetoes restrained. It must also adopt new rules to assure that it will impartially carry out its Charter obligation to serve the peace of all nations large and small. Such Council changes are part of an evolutionary process.
10 - 93 Remarks Made at Pace University School of Law
You’ve heard from Professor Rubin, a distinguished scholar, and serious thinker that there should not be an international criminal tribunal to punish crimes against humanity. He says it won’t work, it would be a great embarrassment, it doesn’t promote human rights and there are countless difficulties which, if he had more time he would spell them all out for you. Some of you may be relieved that he didn’t have more time. I’ve only got 15 minutes in which to respond and so I will begin with a confession.
Let me begin with quite a different point of view particularly since my friend, Professor Rubin, commented that there are idealistic lawyers and civil servants who are not responsible for the lives of people and who really don’t care about setting up lawful legal order. There happens to be a gentlemen sitting in the first row here, whom I have not heard from or thought about, frankly, for 49 years. The gentleman is William Denson, a retired West Pointer and former Judge Advocate. We got to know each other under very strange circumstances. I was a sergeant in the infantry, he was colonel. I entered many concentration camps trying to catch war criminals or to collect the evidence of their crimes. I have seen man’s inhumanity to man in ways which the human mind, the normal human mind, cannot quite grasp. And he was responsible, long before Nuremberg, for trying war criminals before the US War Crimes Commission established by the US army immediately after the war in the concentration camp at Dachau. The defendants were persons who had been captured in the camps which had been liberated by the American Army; Dachau, Buchenwald, Mauthausen, Flossenburg. I was in all these camps.
My concern did not begin with Latin knowledge of “jus in bello” or “jus ad bellum”. It began with the determination that that kind of war had to end.
So, let me just look at it from another perspective. I began as Colonel Denson did, prosecuting on behalf of the United States without rules, without books, without long legal precedents but with a strong determination that what we had seen was wrong and that those who had committed those crimes should be punished. If you didn’t punish the criminals, if you ignored them and only pointed to the problems, those crimes would be repeated.
Now let me tell you a little bit about Nuremberg. When the war was over, I went home. I didn’t want to go back to Germany, but I did go back with General Telford Taylor who was setting up the subsequent proceedings for Nuremberg following the prosecution of Goering and others by the International Military Tribunal (IMT). Let me tell you a little bit about what we had in mind and something about the Nuremberg trials.
The Nuremberg trials were the product of the same kind of abhorrence which I had experienced as a soldier in the field. The President of the United States, and other world leaders gave warning to Adolf Hitler and company that the day of reckoning would come. And we’ve heard here references to the trial as “victors’ vengeance”. That is a very common misconception. What was tried at Nuremberg was to put a stop to man’s inhumanity by creating the rule of law.
The British, you’ll be interested to know, were in favor of what they called “a political situation” – take the Nazis out and shoot them. The British are always noted for their fair play.  But, there were some difficulties with that—who do you shoot and when do you stop shooting? And it’s to the everlasting credit of the US, to Henry Stimson and John McCloy, his Assistant Secretary of War, who persuaded Roosevelt and the other that we’re a country of laws and we try people according to the rule of law. We didn’t invent the law at Nuremberg, contrary to the common assumption that we were just victors going to express our outrage against the vanquished.
I recommend to my friend Professor Alfred Rubin that he read my two volumes on an international criminal court  where he’ll find the precedents spelled out. He will find there that it goes back long before Nuremberg. It was an assassination on the bridge at Sarajevo, “the shot heard ‘round the world’” that launched World War I and got 20 million people killed. The League of Nations appointed a commission to determine the responsibility of the authors of the war and an Advisory Committee of Jurists recommended the establishment of an international criminal tribunal to try the defendants.
There were some members of the Commission, including our own Secretary of State Robert Lansing, who felt it would be ex post facto since no sovereign had ever been tried for aggression before. The conclusion was not to create a tribunal at that time, but, to issue a warning that such crimes would be tried in future. 
German leaders should have known that the invasion, the aggression against little Belgium, was a crime. The US felt that since we never tried them before, we wouldn’t try them now but, rather, warn them in stead. This is the last time. Next time, they’ll be held accountable. And the minutes of those meeting are there. 
And so, we got to World War II and again the crimes were committed. Again the US took the lead and sent a very distinguished Justice, Robert Jackson from the US Supreme Court, to serve as our Chief Prosecutor. Jackson, a man of high distinction and high ethical and moral character, much concerned about the welfare of human beings and humanity, said, “We have given them enough notice.” And let me quote to you, just briefly, to meet the point that has been made by Professor Rubin. Jackson gave assurance that the fundamental purpose of the prosecution was the advancement of law and justice:
That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the more significant tributes that [P]ower has ever paid to [R]eason…. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity so our task in this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice. 
That’s what Nuremberg was all about. It was not victors’ vengeance. It was the attempt to do justice under law so that humanity would be protected. When in a dozen subsequent trials General Telford Taylor, Harvard Law graduate, professor now at the Columbia University, distinguished American citizen, followed after Jackson, the effort in those subsequent trails was always the same.
It happened to be my fate to prosecute twenty-two defendants who had murdered, in cold-blood, over a million people. Show them down like dogs in a ditch. Men, women and children—because they were Jews, because they were Gypsies, because they were Slavs, because they were Communists, because they were opponents of the Nazi regime. I had these twenty-two defendants. I didn’t ask for the heath penalty because it seemed too absurd to talk about taking twenty-two defendants and holding them responsible for a million deaths. There was no punishment that could match that. I asked the Court to affirm, by the rule of law, that all human beings could live in peace and dignity under the law. That was the purpose of that trial. 
Now, it’s true that we didn’t have big precedents. It took the Nuremberg judges, led by Jackson, six weeks to draft the states of the International Military Tribunal.  Procedural rulings of the subsequent Nuremberg Courts are contained in Volume 15 of a 15 volume series.  An absolutely fair trial, under law, the kind of trial which they never gave to any man. It was conducted by the US and by the IMT at Nuremberg.
So, to come here and listen to critique of a statute which has finally come out of the UN after all these years, and pick it apart (tear it to shreds, perhaps) seems to me to miss the main point. And that is the historical movement of what we are witnessing.
We are witnessing the attempt of civilized human beings to create a new form of justice under law. Surely there are difficulties. We can agree with many of the points raised by my friend Professor Rub. But these difficulties can be overcome. We have to overcome them. If we look for a problem for every solution, we’ll never move forward.
The Nuremberg Charter defined three categories of crimes. The first was the crimes against peace, aggression. I won’t spell it out in detail—read the two volumes I wrote on the subject. 
The next was crimes against humanity. That was the important point. Because we knew aggression was a crime after the First World War, we said so. War crimes had a tradition going back to 1899 and before in the Hague Conventions, but crimes against humanity, namely murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, persecutions on political, racial, or religious grounds, these were the crimes against humanity we were reaching out for. The complaining party was not merely the victim, not merely the State (as it is in New York), it was all of humankind. That was the offended body because the crimes had reached such a magnitude that no state could cope with them. The states themselves were the perpetrators of the crimes. We were trying to reach beyond that, and the UN Charter also tried to reach beyond it.
The First General Assembly of the UN confirmed, unanimously, all of these principles of international law: that heads of state cannot evade responsibility; that superior orders are no excuse—will be no defense; that there are crimes against humanity which are criminal acts which shall be prosecuted and those responsible, found guilty after a fair trial, will be held to personal account. That’s what we were trying to do.
Now, it didn’t work as we had hoped. True, as Professor Rubin points out, and as Professor Sinha has pointed out, the crimes have been committed elsewhere. Nuremberg was the last such international tribunal. There have been no Nuremberg trials since then, and millions of people have died as a result of the same kinds of persecutions and mass murders under the name of genocide, ethnic cleansing, whatever you want – and are continuing to die as we sit here and speak.
And so I say, “Well, what is our responsibility, as members of the international community, as human beings, as lawyers, as international lawyers?”
To point to the difficulties and say we can’t do anything? We have been doing that ever since Nuremberg. Now finally the UN is beginning to break through with a statute which I won’t talk about because we have many experts here who will deal with it.  Finally, we are beginning to break through, although in an inadequate way.
One of my books speaks of planetary needs.  We must share this planet and learn to live in it in peace and dignity for everyone. There is no sense in talking about international tribunals limited to crimes committed in one country. Law applies to everyone. It applies to the US. It applies to the Soviet Union. These were things we couldn’t cope with at Nuremberg. We had a limited area. We did the best we could. But now we should go forward from there.
No one pretends that international law should be limited to one country, one time, one place. That’s not what law means. Law means that it applies to everyone and no one need fear law, if they’re prepared to behave in a lawful way.
So, what we see here in conclusion is, how do we get from here, this terrible world we hoped for at Nuremberg? How do we move from man’s bestiality, which is the only word for it, to a world of tolerance and human compassion? It will not be easy. We need all the help we can get.
Sometimes the critics are helpful. They point to difficulties. But we mustn’t stop with the criticism. The criticisms are there to be overcome and to the man who criticizes me, I say, “If you have a better idea than what I have, I welcome it. Come, give me your improvement. But don’t tell me it can’t be done, that I must continue to live in this kind of world.” I refuse, I will not accept that, and that’s the subject of my next book. 
So what can I ask you to do? What can you do? You here as lawyers, human beings and you say, “Well, you make sense, but it’s really too difficult.” Professor Rubin has pointed out that there are so many complications.
There aren’t that many complications. When I was a young idealistic fellow I saw the complications then too and I said “Let’s move forward, try.” Will Colonel Denson sitting here tell you that he convicted innocent people? He did not. They were guilty as hell.
So, the approach that I recommend to you—and to me—is do the best you can. If you don’t know the direction in which you want to go, it’s not likely that you’ll get to the right place. You’ve got to know what supports the ultimate goals. If we are moving in the right direction, support it. We need a new way of thinking, a new way of enforcing the UN Charter.
Professor Rubin spoke about non-interference in internal affairs. We dealt with the at Nuremberg. We didn’t have the UN Charter. The Charter of the IMT was signed the same day as the UN Charter. But we knew that there were crimes against humanity. When we talk about non-interference in internal affairs we don’t mean that a state can go about and start killing all of its citizens and it’s none of our business. It became our business. We made it our business. We made it not only our right, but our duty, to stop it.
My answer to the question, “Should there be an international criminal tribunal for crimes against humanity?” is “of course there should be.” The sooner you begin to recognize that need and work toward it, the sooner we’ll have it.
 See T. Taylor, Final Report to the Secretary of the Army on Nuermberg War Crimes Trials Under Control Council Law No. 10 (Washington DC, 1949).
 BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT, A STEP TOWARD WORLD PEACE: A DOCUMENTARY HISTORY AND ANALYSIS (1980). Vol. I, Doc. 3, 4.
 Conference on the Preliminaries of Peace, Commission on Responsibility of the Authors of the War an on Enforcement of Penalties, Plenary sess., Annex II (1919), cited in, FERENCZ, supra note 2. Doc. 3 at 179.
 FERENCZ, supra note 2, at 71.
 Trials of War Criminals Before the Nuernberg International Military Tribunals, Vol. 4 at 30.
 International Military Tribunal, 1 Official Documents 8, Trial of the Major War Criminals (1947).
 See supra note 6, Vol. 15 (1949).
 FERENCZ, DEFINING INTERNATIONAL AGGRESSION (1975).
 See B. Ferencz, An International Criminal Code and Court: Where They Stand and Where They’re Going, 30 COLUM. J. TRANSAT’L L. 375 (1992).
 BENJAMIN B. FERENCZ, (WITH K. KEYES JR.), PLANETHOOD: THE KEY TO YOUR FUTURE (1991).
 B. Ferencz, New Legal Foundations For Global Survival (Oceana, 1994).
04 - 80 Legal Responses to the Afghan/Iranian Crises
source: Reprinted from the Proceedings of the 74th Annual Meeting of The American Society of International Law, April 17-19, 1980
I hope to both summarize the high points of the preceding speakers and place them in the overall context of the crises we now face. But rather than repeating, I would like to focus on possible areas of disagreement.
The Chairman, in his introductory remarks, contended that the events in both Iran and Afghanistan were clear and flagrant violations of international law. In fact, all the other speakers have echoed this point. I feel, on the other hand, that the illegality of both these actions is not so perfectly obvious.
We are dealing here with two alleged breaches of international law: first, an act of aggression and, second, the taking of hostages. When examining the Soviet actions in Afghanistan, it is important to note that no act may legally be labeled aggression unless the Security Council determines it to be so. The United States has agreed to this in the consensus definition. And, of course the Soviet Union has veto power in the Council. Thus, under the definition of aggression agreed to by the international community, including the United States, the final determination whether there has been an illegal act is left to the Security Council, which has not even considered the question.
Furthermore, an act of self-defense of collective self-defense would not constitute aggression. According to the Soviet allegation, troops were introduced into Afghanistan at the request of the local regime. Although certain doubts exist about this invitation, legal problems arise in this connection.
Seen in its broader, political context, the following series of events probably occurred in Afghanistan. The Soviets had succeeded in obtaining a friendly neighboring state, to which they had been supplying arms for several years. Due to internal dissent against the installation of the new regime, the Soviet Union feared that it was losing control of its satellite. When the Iranian revolution occurred, its US-bolstered military force collapsed completely. As we know, the United States became an enemy of Iran. The Soviet Union consequently seized its chance to assert its military domination over Afghanistan, without fear of US or Iranian intervention. It will remain there, moreover, until it has completed that domination and can withdraw with the assurance the Afghanistan is in hands friendly to the Soviet Union.
This should be the crime of aggression. In stark contrast to the principles of the Charter, the Soviet act was a clear-cut case of an unjustified intervention, a violation of sovereignty, and interference in internal affairs. Under the ambiguous prevailing law, however, there is room for doubt. I wish it were otherwise.
The taking of hostages poses further legal difficulties. Since 1934 and the League of Nations, a series of conventions relating to the prevention of terrorism has been produced by the international community. This includes the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, which contains an amendment making the Convention inapplicable if the action was taken in pursuit of “self-determination and independence” or liberation from “alien domination” or “foreign occupation.” The entire international community accepted this amendment by consensus. Thus, it is not astonishing that the hostages were taken. It is surprising, though, that those who accepted the loopholes have described the Iranian actions as clear and flagrant violations of international law. Where is the law?
Secretary Hinton has indicated that the United States is following a policy of making the process so costly for the Iranians that they must ultimately yield. Is this consistent with the assertion that the safety of the hostages was a primary concern in the formulation of US policy toward Iran?
This method was used during the Vietnam War without success. Perhaps an alternative approach might be more appropriate in these circumstances.
In my view, we should try to seek the friendship of the Iranians by trying to understand their feelings about the role of the United States in their country. Professor Hassan has already elaborated some of these feelings. In the end, the demands for an acknowledgement of the record of the United States in Iranian affairs and for the return of Iranian assets may not be so unreasonable.
Rosalyn Higgens has described the problems involved in the freezing of accounts belonging to the Iranian government. Paradoxically enough though, the Shah’s assets have not been frozen. In my judgment, those assets were one of the means by which the liberty of the hostages might be bought. But, astonishingly, the United States has started an action at the International Court of Justice to seize Iranian assets as a form of reparation.
I would also like to call attention to Rosalyn Higgens’s eloquent observation that both crises were “cruel indications of the shortcomings of the international order.” This is most true, and the detention of the US hostages is indeed a global problem.
Professor Hassan has tried to put things in their right light. He carefully alluded to the confrontation between the superpowers concealed behind both crises. He likewise referred to the differing perceptions of international law and the fact that Hugo Grotius was only interested in law for the civilized nations. There must be the evolution of new rights for developing countries.
Stephen Schwebel was responsible for the most constructive and effective US act relating to the Iranian crisis – the petition for interim measures by the International Court of Justice. Because it went to a court of law as its first significant response to an outrageous and unlawful act, the United States has received the support of the international community at large.
On the other hand, it is doubtful whether Soviet policy in Afghanistan will be influenced in the least by US coercive actions taken I response. As Mr. Schwebel has indicated, there is not much to be done in such circumstance.
Now for my own views. Due to an emphasis on national rather than global thinking, I feel that we are in a sorry state. Decisions are being made by those people who are paid to defend the interests of their countries. They are, as the Germans say, befangen, or prejudiced. In an interdependent world, however, we can no longer afford to think in these terms. Other perceptions much be taken in consideration and, ultimately, the aspirations of other countries must be met. The development of the notion of the “common heritage of mankind” is an indication of some progress in the right direction. The aforementioned conventions on the control of terrorism, as imperfect as they are, all represent a growing awareness of the necessity for legal remedies to the types of situations with which we are currently faced. Perhaps we can use such incidents, events that disgrace mankind, to further recognition of the need for an international morality and the need to create the required machinery to put the new rules into effect. New international structures and institutions are essential to prevent these types of situations. Until they are created, aggression and terrorism will continue.
When the United Nations convenes in September 1980, it will have before it a draft Code of Offenses Against the Peace and Security of Mankind. This Code includes prohibitions against acts of aggression, terrorist activities, and the taking of hostages. The United States has been opposed to having these discussions, and I urge you to push both US and other representatives to pursue these talks. Problems similar to the two under scrutiny here must be discussed in a rational way, so that a code of behavior, setting out what is and what is not permissible, can be established. Furthermore, a court with the authority to determine whether this code has been violated should be created and empowered to impose sanctions, economic or otherwise, of a universal character. As Rosalyn Higgins asserted, this is not solely a US problem. It is a world dilemma, and only by taking steps in this direction can we turn these tragedies into positive influences.