25 August 1996

AN INTERNATIONAL CRIMINAL COURT - THE SOONER THE BETTER

By Former Nuremberg Prosecutor, Adj. Professor of International Law,

Pace University School of Law, New York

THE GOAL: The most fundamental of all human rights is the right to live in peace and human dignity. There can be no peace without justice and no justice without peace. Nations must decide whether they wish to live in constant fear under the threat of war or live in relative peace under the rule of law. The absence of a permanent international criminal court to deter and punish aggression and crimes against humanity mocks the victims of war and inhumanity and encourages more criminality; it is a glaring gap in the international legal order. Hopefully, the gap is now beginning to be closed.

BACKGROUND AND STATUS: Confronted by the genocide and inhumanity of world war II, victorious powers created the International Military Tribunal at Nuremberg which confirmed that aggressive war, crimes against humanity and war crimes were punishable criminal offenses that would no longer be tolerated. The American Prosecutor, Robert Jackson, on leave from the U.S. Supreme Court, heralded the rule of law: "That four great nations," he said, "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 ever has 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." Subsequent trials at Nuremberg, Tokyo and elsewhere confirmed these rules of binding international law. The Nuremberg principles - intended to govern all nations and individuals - were unanimously affirmed by the United Natio

ns in 1946.

Soon thereafter, UN Committees were appointed to implement the Nuremberg decisions by drafting a code of offences against the peace and security of mankind as well as conventions outlawing genocide and establishing an international criminal tribunal. The issues were debated at great length for many years, several competent drafts were considered - including those submitted by private experts. But no consensus could be reached. As they had after the first world war, cautious diplomats explained: "The time is not yet ripe." In the meanwhile, international crimes flourished and went unpunished in many parts of the world.

The end of the cold-war opened the door to possible progress. In 1991, when violence erupted among ethnics groups in former Yugoslavia, worldwide television presented graphic reports of "ethnic cleansing" including mass rapes. Public opinion was outraged. Nations that had be unwilling to intervene to block the carnage now recognized that some actions was essential. The UN Security Council quickly created an ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) to try persons accused of war crimes and crimes against humanity in that territory. It had been drafted by the UN Secretariat in less than 8 weeks - about the same time it had taken the four allied powers to agree upon the Charter for the Nuremberg Tribunal. The ICTY, the first international criminal court since Nuremberg, began functioning at the end of 1994. It led to the speedy creation of a similar ad hoc tribunal to deal with genocide and crimes against humanity in Rwanda. The existence of these two tribunals demonstrates th

at where the political will is present it is possible to create a fair international criminal tribunal in a matter of weeks.

The International Law Commission (ILC), a body of distinguished legal experts acting at the request of the General Assembly, goaded by the effective Ambassador of Sierra Leone, Abdul Koroma (soon to be elevated to the International Court of Justice) also completed its work on a draft Statute for a Permanent International Criminal Court in 1994. The ILC then completed its Code of Crimes against the Peace and Security of Mankind by July 1996. This new momentum reflected widespread agreement that an international criminal court, with fair trial for the accused, should be created as an essential component of a just world order under law. Nation must decide how to implement these shared objectives. The technical legal problems of form, substance and procedure are now being adapted by various UN committees.

PROGRESS AND PROBLEMS: Most nations seem inclined to adopt the statutes for a permanent international criminal court in the form of a multilateral treaty that each state can decide to accept or reject. Treaties bind only the signatories and require ratification - which may be a long and tortuous process. (It took the United States 40 years to ratify the genocide convention!) Action by the Security Council offers the advantages of a speed and greater enforceability but smaller state fear that the Council may create tribunals that are politically selective rather than applying universal standards. Before it can expect greater acceptance, the Council must reform itself so that its practices and procedures are recognized as fair to all nations and not merely to favor the more powerful permanent members and their allies. Hopefully, a more democratic and acceptable Council would be able to move quickly toward closing the gap in prevailing legal order if the treaty route falters.

The 60-article ILC draft: proposed that the new tribunal have jurisdiction over the same crimes enunciated at Nuremberg - aggression, crimes against humanity and war crimes, as well as genocide and a few exceptionally serious crimes that have been condemned by generally accepted treaties. But some states did not wish to include aggression within the new court's authority. They argued that it was not sufficiently defined, that it required a prior determination by the unpopular and political Security Council, that aggressive war could only be committed by a state and its inclusion would cause delays. None of those arguments are persuasive.

Nuremberg and other tribunals condemned the crime of aggressive war even without a specific definition. The 1974 consensus definition of aggression can easily be modified to meet the needs of a more precise criminal statute. The UN Charter requires the Security Council to determine if aggression has occurred but then it will be up to an independent court to ascertain whether the accused is guilty of the crime. Aggression is committed by decision-makers who should not to be allowed to hide behind the curtain of state immunity or outdated notions of unlimited state sovereignty. The 1996 ILC draft code, after considering all of the objections, concluded that aggression (as briefly defined by the ILC) is a crime against the peace and security of mankind. Such states as France, Germany, Russia, Finland, Cameroon, Egypt and others, agree that aggression should be subjected to the jurisdiction of the new court. Many unofficial expert groups, such as those meetings in Syracuse under the direction of Professor C

herif Bassiouni, recognize that aggression must be punishable. To omit it from the jurisdiction of the first international criminal court since Nuremberg is to repudiate and cut the heart out of the Nuremberg principles that condemned aggression as "the greatest of all crimes". Omission would undermine the search for a more peaceful world by suggesting that aggression is not a crime that can be tried by an international criminal court.

There are of course many other procedural differences that have not been ironed out as 185 nations with differing legal systems seek some consensus or compromise. Even within nations there are differences between ministries such as those concerned with defence, justice or foreign affairs. Those states, like France, Japan, Argentina, Australia. the United States and the Netherlands, that have submitted comprehensive new statutes for the proposed permanent international court are to be congratulated for the seriousness of their effort (also completed in a few months time). But it may not be remiss to remind them that the search for consensus may be a hopeless or counter-productive endeavor. The views of all nations must be respected but we must not forget that the goal is to close the existing gap in the international legal order as quickly as possible, for the longer that chasm remains open the more international crimes are likely to be committed with impunity.

HOPE FOR THE FUTURE: The most important immediate problem is to make sure that the two existing ad hoc criminal tribunals created by the Security Council succeed in their mission. The international community has been very fortunate in obtaining the services of such dedicated and outstanding international lawyers as Professor Antonio Cassese of Florence, Italy, as President of the Tribunal and Richard Goldstone, a prominent judge and civil rights leader of South Africa, as Chief Prosecutor. There is no doubt that all trials conducted under their supervision (just as the Nuremberg trials) will uphold the highest standards of justice and law - even if the statute that created the ad hoc tribunals did not specify every detail in advance but left much to the wise discretion and rules promulgated by the competent and fair judges. But the ad hoc tribunals need all the help they can get - from the UN and the public. Indicted suspects, no matter how high their station, must not be allowed to flout the will of the int

ernational community and the Security Council. As we move toward the next millennium, diplomats and decision-makers must demonstrate that they are enough and dare enough to move courageously toward a new world of peace under law for everyone everywhere. The sooner, the better!