Make Law Not War

By Ferencz, Benjamin B. | The World Today, June 1998 | Go to article overview

Make Law Not War

Ferencz, Benjamin B., The World Today

After years of UN debate, a treaty to establish a permanent international criminal court may be ready for signature in Rome in July. It is still uncertain whether agreement can be reached and which countries will sign, ratify and enforce the treaty. The international legal community is itself now on trial.

THE WORLDIS ON THE THRESHOLD of closing a glaring gap in the international legal order. Over fifty years ago, the International Military Tribunal at Nuremberg denounced and punished aggression, crimes against humanity and massive war crimes as offences that would be condemned wherever they occurred. There was an implied promise that `Never Again' would genocide go unpunished.

The United Nations agreed unanimously and the Nuremberg principles became binding international law. But there was no permanent international court to try future war criminals. Nations went back to killing as usual. Cold-war rivalries and entrenched notions of sovereignty eroded the political will to bring genocidal national leaders to impartial justice.

All nations now seem to agree in principle that a permanent International Criminal Court (ICC) is needed, but there are considerable problems still to be overcome. The declared goal is to create a world criminal court that is `fair, efficient and effective' - which to some means a court that will not interfere with perceived national interests. There's the rub! Current drafts reflect continuing reluctance of powerful states to yield any significant segments of their power.

There is agreement that the ICC can only come into play when national courts are unwilling or unable to bring suspects to fair trial, but the criteria of inability and who decides that question are still in dispute. Some countries want the right to `opt-in' or `opt-out' of answerability for certain crimes. Some argue that states whose nationals are involved, as perpetrators, victims or captors, must give their consent before the ICC can try the accused. They fail to recognise that crimes of great magnitude almost invariably require official complicity and the accomplice could hardly be expected to try itself.

The United States, mindful of its conservative Senate and a reluctant Pentagon, insists that Security Council permission must be obtained before the ICC takes action. Those without veto rights in the Council resist every assertion of special privilege. They fear, quite rightly, that complete Security Council control will destroy the independence of the Tribunal. Since the Council's rights and duties are set by the UN Charter and cannot be decreased or enlarged without amending it, there seems no compelling reason to reaffirm existing Charter rights or assert powers that go beyond Charter authorisation.


The Council demonstrated its power when, in a matter of weeks, it created two ad hoc tribunals, based in The Hague, to deal with massive human rights violations in former Yugoslavia after 1991 and with genocide in Rwanda in 1992. If the Rome treaty route should fail or falter, the Security Council may be the only alternative to bring international criminals to speedy trial.

Despite great difficulties - notably the failure of states to arrest leading perpetrators - The Hague criminal tribunals have been earning increasing respect and deserve greater support. But a string of special courts created a la carte, and restricted to certain crimes in defined areas during a limited time, can hardly be the best way to establish universal justice.


It is generally agreed that only a few `core crimes' of major significance to the world community should be dealt with by the new court. Other crimes, such as terrorism and drug-trafficking may be added later. Whether aggressive war - the crime against peace - will be included in the treaty is still being discussed.

Mistrust of a politicised Security Council is one reason advanced by those who argue that aggressive war - condemned at Nuremberg as `the supreme international crime' - should not be subject to judicial review. …

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