Argument: ICC advances universal rights and international law

Issue Report: International Criminal Court


Amnesty International. “The Globalization of Justice” – We live in an increasingly globalized and interdependent world. The physical boundaries that separated countries have given way to a global economy, instantaneous communication, the ability to span the globe in less than a day and the proliferation of crimes that have international implications. This phenomenon both necessitates and enables the creation of an international system of justice that complements and reinforces national justice systems.

The trend towards a “globalization of justice” is defined by an increasingly wide net of international obligations covering everything from free trade to labor standards, environmental regulations and the protection of fundamental human rights. It is evidenced by the establishment of an International Criminal Court, the creation of ad hoc tribunals for Rwanda and the former Yugoslavia, the creation of internationalized courts and the increasing use of domestic courts to bring criminal and civil cases against individuals accused of gross violations of international human rights.

The world has sustained atrocity after atrocity without having recourse to justice, but this is changing. Global rules and systems that enforce human rights at the international level have become significant tools to prevent conflict and promote peace and justice. An international system of justice is essential to deter those contemplating human rights crimes, to enable victims to obtain justice and redress, to rebuild nations ravaged by war and to support post-conflict reconciliation.

[…] The International Criminal Court (ICC) is the world’s first permanent, international judicial body capable of bringing to justice those individuals who commit genocide, crimes against humanity and war crimes when states are unable or unwilling to do so. The Court is also able to provide reparation to victims. The ICC treaty, which was adopted in 1998 and entered into force in 2002, has been hailed by governments, legal experts and civil society as the most significant development in international law since the adoption of the United Nations Charter. Currently, over 100 countries, representing all regions of the world, accept the Court’s jurisdiction. The Court is now operating in The Hague. It made its first arrest in March 2006.

Benjamin B. Ferencz, J.D. Harvard 1943 and a Former Nuremberg War Crimes Prosecutor. “Response to Henry Kissinger’s essay ‘The Pitfalls of Universal Jurisdiction’.” 2 July 2001 – Henry Kissinger’s essay on “The Pitfalls of Universal Jurisdiction” (Foreign Affairs July/August 2001) perceives danger in allowing international legal norms to interfere with political actions by national governments. The former U.S. Secretary of State in the administration of President Richard Nixon warns that current efforts to deter genocide and other crimes against humanity by creating an international criminal court (ICC) run the risk of becoming a “tyranny of judges” or a “dictatorship of the virtuous.” He refers to “inquisitions and even witch-hunts.” Kissinger?s focus on the past exaggerates the dangers of the present and ignores the needs of the future. If we are to have a more peaceful and humane world, international law must play a greater and not a lesser role.

Dr. Kissinger challenges the basic concept of universal jurisdiction. He argues, incorrectly, that the notion is of recent vintage. He gives scant weight to ancient doctrines designed to curb piracy or to a plethora of international conventions following the First World War. He fails to recognize that international law is found not only in treaties but also in general principles of justice and in customs which gradually obtain universal recognition. International law is not static but advances to meet the needs of a changing world.

Over half a century ago, Robert M. Jackson, on leave from the U.S. Supreme Court to become Chief U.S. Prosecutor before the International Military Tribunal at Nuremberg, declared: “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.” The learned judges reviewed the law on which the trials were based and concluded that it was “not an arbitrary exercise of power on the part of victorious nations” but “the expression of international law existing at the time of its creation…” The Nuremberg principles were affirmed by the United Nations in 1946 and became binding legal precedents for war crimes trials in Tokyo and elsewhere. Justice Jackson and Telford Taylor, his successor for a dozen subsequent trials at Nuremberg, repeatedly made plain that the law being mobilized to maintain peace in the future would apply to all nations equally.

The United States inspired the world when it proclaimed at Nuremberg and elsewhere that aggression, genocide and other crimes against humanity were universally prohibited by international law. It was recognized that states can act only through individuals and thus those leaders responsible for the crimes could be held to account in a court of law. Crimes like aggression, genocide and similar large-scale atrocities are almost invariably committed by or with the connivance of a national government and it thus becomes imperative to have available an international tribunal that could bring them to justice.

For over half a century, United Nations committees struggled in vain to reach consensus on a code of international crimes that would be punished in an international court. Cold war politics stymied all U.N. efforts to create an international criminal jurisdiction. Powerful nations remained unwilling to yield their sovereign rights to kill as they alone saw fit. After years of meticulous argumentation at the U.N., a breakthrough finally came in Rome in 1998 where 120 nations voted in favor of an ICC to curb the incessant murders and persecution of millions of innocent people. The U.S. was one of 7 nations that voted No. Mr. Kisssinger now argues that because of “the intimidating passion of its advocates”, the judicial procedures designed to punish and deter new crimes against humanity are being “spread with extraordinary speed and has not been subjected to systematic debate”. It is not the passion of its advocates that is moving nations toward the rule of law – it is the passion of those who have been victims of politics as usual.

[…]In 1776, the Declaration of Independence declared that “governments derive their just powers from the consent of the governed.” The United Nations Charter speaks in the name of “We the Peoples…? The Universal Declaration of Human Rights, adopted in 1948 refers to ‘the equal and unalienable rights of all members of the human family…” and declares that it is essential “that human rights should be protected by the rule of law.” These and many other international human rights instruments reflect the growing realization that true sovereignty lies in the people and not the state. Today, no nation and no person can be above the law. No one should oppose the creation of new institutions being created to help realize the dreams of suffering humanity.

The judgment of the Nuremberg Tribunal famously declared, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”[1]