Robert H. Jackson Center

Nuremberg and the International Court

REMARKS OF HENRY T. KING, JR.

Chautauqua Institution
Chautauqua, New York
June 14, 2003

The International Criminal Court (ICC) was born at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, which was held from June through July 1998 at Rome, Italy. I was a Non-Governmental Organization (NGO) representative at the conference where I represented the former Nuremberg prosecutors. One hundred forty-eight nations, including the United States, were represented at that Conference.

The issues at Rome were the following:

  1. The jurisdiction of the Court. What were to be the core concerns?
  2. What were to be the trigger mechanisms that would bring cases to the Court – for example, in this regard, what would be the role of the prosecutor, the U.N. Security Council and the nation state.
  3. Due process for the defendants with regard to the core crimes.

h3.Core Crimes

Aggression. As a starter the U.N. was dead set against inclusion of aggression as a crime under the treaty establishing the ICC. The U.S. said that this was because aggression had not been defined. Others said it was because the U.S. wished to be free to commit aggression. Aggression was included in this treaty at the insistence of three former Nuremberg prosecutors, including myself, working through the German delegation. However, aggression, although included in the Rome Treaty, has yet to be defined and that definition must be included with the approval of 7/8 of the nations who are parties to the Rome Treaty.

In opposing the inclusion of aggression, the U.S. turned its back on Robert Jackson, the architect of Nuremberg, who felt that criminalizing aggression was basic to a rule of international law in the world.

Crimes Against Humanity. This was a most important count at Nuremberg. It was the basis for convicting individuals who were guilty of killing or injuring a mass of people for racial, religious or political reasons. In an effort to sabotage the inclusion of this count the U.S. prepared an amendment to enable nation states to opt-out of this element of the International Criminal Court’s jurisdiction. This could have seriously undermined the jurisdiction of the Court. However, crimes against humanity were included and the U.S. attempt to get the nations of the world to turn their backs on Jackson’s achievements at Nuremberg failed. Not only were crimes against humanity included, but the scope and sweep of this set of crimes is much larger than was the case at Nuremberg. For example, many crimes against females are included, such as rape and other forms of sexual violence, which were not covered at Nuremberg.

Role of the Prosecutor. On the role of the prosecutor Jackson had a relatively free hand at Nuremberg. If he had been handicapped, Nuremberg could never have taken place. At Rome, however, the U.S. on July 15, 1998, prepared an amendment that would eliminate the role of a self-initiating prosecutor. The U.S. would have totally subordinated the prosecutor to the U.N. Security Council. The U.S. attempt failed and the Rome Statute provides for an independent prosecutor who can act on complaints by the U.N. Security Council and state parties or upon information tendered by a non-governmental organization, intergovernmental organization or presumable even an individual. As a check on the prosecutor there is a pre-trial chamber to authorize prosecutions.

Thus, to sum up on trigger mechanisms, Jackson was delegated to the right to initiate proceedings. The U.S. would remove self-initiating prosecutors from the statutes creating the Court. The Rome Statute provides for complaints to the prosecutor by (1) the U.N. Security Council; (2) state parties; (3) or upon information tendered by non-governmental organizations, intergovernmental organizations and individuals. Obviously, the U.S. approach would have figuratively castrated the prosecutor and could have rendered the Rome Statute inoperable.

Individual Responsibility. Nuremberg was based on the concept of individual responsibility for violations of international law. Jackson’s approach was to put this concept in action on a universal basis. Sovereignty was to be penetrated.

The U.S. position at Rome was directly contrary to Jackson’s at Nuremberg. The consent of the state or nationality of the accused would be required before the Court would have jurisdiction, U.N. Security Council consent would be required before jurisdiction was taken in any case, and the U.S., as a member of the U.N. Security Council, could veto such actions. It would not require a genius to conclude that the U.S. approach would have made the Court D.O.A. (Dead on Arrival).

The Rome Statute extends accountability to heads of state or high-level officials. Moreover, the superior orders defense is largely eliminated. Individuals are to be responsible with the consent of the territorial state where the crimes were committed or state of nationality of the accused. Consent would not be case-by-case consent but general and continuing following accession o the Rome Treaty.

Universality as a Concept of the Treaty. At Nuremberg Jackson clearly stated “To pass these defendants a poisoned chalice is to put it to our lips as well.”

The U.S. position was that no American national would be tried by the International Criminal Court without express case-by-case consent of the U.S. – such a provision would necessarily have to be made available to all treaty signatories and would have gutted the treaty and extended de facto immunity to the most conspicuous war criminals, the heads of various rogue states that would obviously not have consented to their prosecution.

The Rome Statute provides for automatic but not universal jurisdiction over the crimes of genocide, war crimes and crimes against humanity, without further consent from states but would not allow exercise of jurisdiction over persons unless the state in which crimes occur or state of nationality of the accused consents. When a definition is achieved, aggression will also be included in this jurisdiction, subject to whatever role might be assigned the U.N. Security Council in the process.

As the Rome negotiations drew to a close it became clear that U.S. attempts to bully countries supporting the treaty and to sabotage the drafting of a workable treaty were not be successful. The final vote on the treaty was taken on July 18, 1998. When the vote was tabulated 120 nations voted for the treaty; seven countries voted against the treaty, including the U.S., which was joined by such countries as Iraq, Iran and Libya. Thus the U.S. had turned its back on Robert Jackson and his blueprint for a rule of law in the world based on peace with justice.

How was the victory won? It was won by friendly, law-abiding states, including the European states and such states as Canada and Australia. It was also won through the efforts of the over 1,000 non-governmental organizations who supported the treaty. In addition the efforts of individuals, such as Philippe Kirsch of Canada, the conference chair, and of Cherif Bassiouni, chair of the drafting committee, were instrumental in attaining this victory. A dimension was added through the efforts of three former Nuremberg prosecutors, including myself, who were successful in getting aggression included in the list of crimes covered by the statute.

The people of much of the world spoke through their representatives at Rome, and the result was progress. Europe, particularly, had learned the lessons of Nuremberg, while the U.S. had not. Europe had learned that accepting some limitations on sovereignty were necessary in order to ensure a more secure world. On the other hand, the U.S. approach was a “go it alone” approach where unilateralism was the order of the day. I am not convinced that the U.S. public supports unilateralism as currently practiced internationally by the U.S. – but I say emphatically – the public needs to speak out and be heard.

The Rome Statute contained a provision that it would become effective when 60 countries had ratified it. By July 2002 amore than 60 countries were parties to the statute. The NGOs played an important role in securing the required number of ratifications, particularly in the smaller states.

With the ICC now a fact, the Assembly of States that will govern the ICC began to implement the organization and also the selection of the 18 individuals who will act as judges for the ICC proceedings. These judges were sworn in on March 11, 2003, at a proceeding that I attended as a guest of the government of the Netherlands. The ceremony was held at The Hague where the Court is to be located. By the time of this ceremony, 89 nations were parties to the Rome Statute and all were represented at the swearing in ceremony. No American government representatives attended the ceremony. I was one of two former Nuremberg prosecutors who were there. All that day – March 11 – I thought of Robert Jackson and how pleased he would have been that law-abiding states in this world of the 21st century had transformed his dream of a permanent court enforcing the Nuremberg principles into reality. Moreover, among those leading the way was Germany, which was the situs of his precedent-breaking prosecution against the top Nazis who were criminals. It is a matter of supreme irony that the path-breaking dream of an American for a world ruled by law based on justice is being translated into permanent reality by non-Americans.

I think the good people in the U.S., and I believe there are many of them, need to come to their senses and to right the wrong of U.S. non-adherence to this first, permanent, international criminal court in history. We are, indeed, a law-abiding people domestically, but we must also be party to a rule of law internationally – a rule of law which would create a more secure world for all of us.

I say to you here today – do you want to continue the anarchy of the past where the law of force is the order of the day? Or do you want a world characterized by peace and security under a rule of law? The choice is indeed yours. If you want a better world you have to fight for it, as Robert Jackson did, and keep his memory alive as we are here today. We should never forget that in the face of heavy onslaughts from many quarters, he stuck with his dream of a better world under a rule of law, until his dying day. Robert Jackson designed a cathedral for a better tomorrow. We need to do our part to ensure that Jackson’s cathedral has all the scope and height that it needs to be effective in an ever more related world.

Let us never retreat into a world characterized by darkness and uncertainty where death and destruction are the order of the day. There is a bright, new world out there – a predictable world where progress is the order of the day. I believe it is within our grasp – but grasp we must in order to achieve it!