We all have moments in our lives when we discover something without realising that, one day, we will find ourselves involved in it. Some call it serendipity, others destiny.
The first time I ever heard the words “cour pénale internationale” was in a seminar in 1957 at the University of Geneva Law School, which I was then attending. The speaker was Professor Jean Graven who, at the time, was Dean of the law school, having also served as President of the University and President of L’Association Internationale de Droit Pénal (AIDP). I could have never imagined that one day I would succeed my professor as President of the AIDP, nor that I would have surpassed his expectations and those of many others by becoming the Chair of the Diplomatic Conference’s Drafting Committee of the International Criminal Court (ICC), to which I was elected unanimously by the UN General Assembly in 1998. It was only 40 years later from that first day in Geneva that I sat on the dais at the great hall of Il Campidoglio, the seat of the City of Rome, for the opening of the signature of the Rome Statute for the establishment of the ICC, sitting alongside UN Secretary-General Kofi Annan, Italy’s Minister of Foreign Affairs, the Mayor of the City of Rome, the Chairman of the Committee of the Whole of the Diplomatic Conference, and its Chair. There, on 18 July 1998, I had the privilege of delivering a speech expressing the significance of this historical journey, whose text follows:
The world will never be the same after the establishment of the International Criminal Court. Yesterday’s adoption of the Final Act of the United Nations Diplomatic Conference and today’s opening of the Convention for signature marks both the end of a historical process that started after World War I, as well as the beginning of a new phase in the history of international criminal justice.
The establishment of the ICC symbolises and embodies certain fundamental values and expectations shared by all peoples of the world and is, therefore, a triumph for all peoples of the world. The ICC reminds governments that Realpolitik, which sacrifices justice at the altar of political settlements, is no longer accepted. It asserts that impunity for the perpetrators of ‘genocide,’ ‘crimes against humanity,’ and ‘war crimes’ is no longer tolerated. In that respect it fulfills what Prophet Mohammad said, that ‘wrongs must be righted.’ It affirms that justice is an integral part of peace and thus reflects what Pope Paul VI once said, ‘If you want peace, work for justice.’ These values are clearly reflected in the ICC’s Preamble.
The ICC will not be a panacea for all the ills of humankind. It will not eliminate conflicts, nor return victims to life, nor restore survivors to their prior conditions of well-being and it will not bring all perpetrators of major crimes to justice. But it can help avoid some conflicts, prevent some victimisation and bring to justice some of the perpetrators of these crimes. In so doing, the ICC will strengthen world order and contribute to world peace and security. As such, the ICC, like other international and national legal institutions, will add its contribution to the humanisation of our civilisation.
The ICC also symbolises human solidarity, for as John Donne so eloquently stated, ‘No man is an island, entire of itself; each man is a piece of the continent, a part of the main . . . Any man’s death diminishes me because I am involved in mankind.’
Lastly, the ICC will remind us not to forget these terrible crimes so that we can heed the admonishment so aptly recorded by George Santayana, that those who forget the lessons of the past are condemned to repeat their mistakes.
Ultimately, if the ICC saves but one life, as it is said in the Talmud and the Quran, it will be as if it saved the whole of humanity.
From Versailles to Rwanda, and now to the ‘Treaty of Rome,’ many have arduously laboured for the establishment of a system of international criminal justice. Today our generation proudly, yet humbly, passes that torch on to future generations. Thus, the long relay of history goes on, with each generation incrementally adding on to the accomplishments of its predecessors. But today, I can say to those who brought about this historic result, the government delegates in Rome, those who preceded them in New York since 1995, the United Nations staff, members of the Legal Office, the non-governmental organisations and here in Rome the staff of the Italian Ministry of Foreign Affairs, what Winston Churchill once said about heroes of another time, ‘Never have so many, owed so much, to so few.
What else can be said to confirm that anyone can make a difference? Here I was, an aspiring law student in 1957 hearing for the first time in a classroom the discussion of a topic that I had never heard before only to find myself four decades later being one of those who helped establish it.
It was also at that time that I learned of the efforts of the AIDP to establish a permanent international criminal court. Again, I found myself active in the organization in 1968 and then in 1974 becoming its Secretary General to be elected three times to that post for a total of fifteen years. Subsequently, I was elected as President, serving 15 years. Each time I was subsequently reelected, save for the first time I was elected Secretary General in 1976, it was unanimous. Not only was this unprecedented in the history of this scholarly organization, which had been founded in Vienna in 1889 and then reorganized after World War II in Paris in 1924, but I was its youngest Secretary General, its youngest President, and its first Secretary General and President from the Arab World and from the US. The AIDP had been a pioneer in the effort to establish a permanent international criminal court since 1924. At that time, a partnership was formed between the AIDP and the International Law Association (ILA) to present a project to the Inter-Parliamentary Union. The Union Interparlementaire (UI) was, at the time, a burgeoning international institution gathering parliamentarians from all over the world. It was the counterpart of the League of Nations established in the aftermath of the devastating WWI, which resulted in 20,000,000 casualties and the introduction in warfare of chemical and asphyxiating gasses (which were prohibited by convention in 1925, though regrettably still used in conflicts even though that convention was updated with a new one in 1993, and an international organization was created to enforce the prohibition). The idea of an organization grouping representatives of the states of the world to ensure peace was due in large part to President Woodrow Wilson, previously a constitutional law professor at Princeton University. But his idealism could not overcome US Republican senators’ isolationism. The League of Nations was established by the US, who was not part of it because the US Senate refused its ‘advice and consent’ for that treaty. The League of Nations was short-lived, however, as it effectively disintegrated in 1936 with the rise of Nazism in Germany, fascism in Italy, and militarism in Japan. At the time, the winds of WWII were blowing hard. Japan had already invaded Manchuria in 1932, while Italy invaded Abyssinia in 1936 and then Germany invaded Poland, Czechoslovakia, and France in 1939-1940.
The rise of the League of Nations after WWI was designed to prevent that which became WWII. In fact, WWI was at the time referred to as ‘the war to end all wars’. In the brief period of time between the 1919 Treaty of Versailles and 1936, many dreams started to come true, and the League of Nations was one such dream. With only 74 states in the world, the hopes for its success were high. The UI was to be a counterpart—a league of parliamentarians of the world—to bring about greater uniformity in national legislations and to establish a network of parliamentarians that would act as a buffer within their countries against rash executive decisions that might lead to war. In 1928, the Kellogg–Briand Pact was adopted, prohibiting the resort to war as an instrument of national policy. It was the beginning of the prohibition of aggression, which regrettably still has yet to be codified in an international treaty establishing individual criminal responsibility for decision makers and senior executors of such policies (at least in 2010, in Kampala, Uganda, the state parties to the ICC defined aggression and included it in Article 8 bis of the Rome Statute, though it has not yet entered into effect nor will it apply to a state party who specifically opts out). So, when the AIDP and the ILA introduced their proposal to the UI at their meeting in Brussels in 1924, the expectations were high. One of the supporters of the proposal was Professor Henri Donnedieu de Vabres, a renowned professor of criminal law at the University of Paris and a member of the AIDP board. In 1945, Donnedieu de Vabres became one of the four judges at the International Military Tribunal (Nuremburg). But, with the rise of the National Socialist Party in Germany in 1932 (the Nazi Party), the hopes for peace and dreams of a world order based on the rule of law began to dim. Even so, the AIDP’s efforts continued. In 1937, the Ambassador of Romania to the League of Nations, Vespasian Pella, a member of the AIDP board, introduced a treaty to establish an international criminal court for persons accused of “terrorism.” A convention on terrorism had just been adopted, and the 1937 Pella proposal became an official protocol to the treaty. But, only one signature appeared on it—that of India, which was not even an independent state at the time.
As of 1942, efforts continued by scholars and diplomats. And, at a meeting at St. James Palace in London, the foundations of modern international criminal justice were laid. This meeting of experts produced the basis for the Nuremburg and other post-WWII international and national prosecutions of persons charged with “crimes against peace,” “war crimes,” and “crimes against humanity.” While the first of these—crimes against peace, whose base was the Kellogg–Briand Pact on the renunciation of war—was new to international law, “war crimes” were established through a modest precedent, namely the 1923 German Leipzig Trials of 24 defendants. This was all that was left of the allied initiative in the Treaty of Versailles and Articles 227, 288, and 229, which respectively called for the prosecution of the Emperor of Germany for his initiation of WWI and for the establishment of international military tribunals to prosecute war criminals. Neither one of these provisions were put into effect, essentially for political reasons. There was nothing left but to have some symbolic prosecutions conducted by Germany in 1923. During this period, there was an effort to prosecute Turkish officials for what was then known as “crimes against the laws of humanity,” a term then found in the Preamble of the Covenant of the League of Nations. But, again for political reasons, the allies—mostly the US and the UK—decided not to push for such prosecutions, as 1919 was only two years after the so-called Bolshevik Revolution in Russia and the establishment of the communist regime in that country led by Lennon. The last thing the western allies wanted was to alienate Turkey, who had suffered a defeat in WWI as Germany’s ally, to become an ally of the new USSR and to open the Mediterranean to the Russian fleet. Consequently, Turkey was given a pass and “crimes against the laws of humanity” were temporarily set aside, only to be reconsidered at the London Conference of 1945, which established the Nuremberg tribunal. It was then called, as it is now, “crimes against humanity.”
Two international tribunals were established: the IMT at Nuremberg and the IMTFE at Tokyo. The first was established by treaty and the second by proclamation by General Douglas MacArthur; the reason for the proclamation once again was politics—namely, to ensure that the USSR would have no role in shaping the IMTFE statute. Both tribunals were short-lived, as their mandates were limited to certain theatres of operation during WWII. Twenty-four persons were indicted at Nuremberg and 28 at Tokyo. Other tribunals were set up later as part of allied prosecutions in Germany and Japan, but national prosecutions also developed. In Germany and Europe, the impact of these prosecutions was profound, and the pursuit of international criminal justice became stronger; but this was not the case in Japan or in the rest of Asia. No sooner had the IMTFE finished its proceedings in 1949 that Japan started its efforts to rehabilitate those who were prosecuted and not executed. By 1954, all of those convicted before the IMTFE and the Yokohama trials for the Class B offenders who had been brought to a central prison in Tokyo were released. One of those convicted at Tokyo became Prime Minister and another became Minister of Foreign Affairs, and, to date, Japan refuses to acknowledge responsibility for what it considers “comfort women”—namely the 300,000 Korean, Filipino, and Chinese women that they used in military brothels as sex slaves for their troops.
The UN undertook an effort as of 1947 to establish a Code of Offences against the peace and security of mankind and to establish a permanent international criminal court. Both efforts lingered on as politics stood in their way, mostly due to the onset of the Cold War, which divided east and west between 1948 and 1989.
The history of the ICC is related to this history of the Cold War and to the efforts of the United Nations. As of 1947, the UN had a committee, as stated above, that was tasked with drafting a code of offences against the peace and security of mankind. This was intended to encompass not only the crimes contained in the charter of the IMT and IMTFE, but also additional crimes, which may have risen to the level of jus cogens. The problem was that “crimes again peace” as defined in the IMT Charter and the statue of the IMTFE had become known as “aggression” in the UN Charter. But, in the context of the Cold War, it was impossible to address the topic of aggression, as both of what was then known as the eastern and western blocs were engaging in activities that could have fallen within the meaning of aggression had it been defined, but it had not. And, there was no way that “aggression” would have been defined in the context of the Cold War. This meant that the major powers representing the two blocs had to use bureaucratic techniques to avoid defining aggression. It also meant that, for good measure, they had to avoid linking the draft code of offenses to the establishment of an international criminal court, which would presumably enforce the provisions of the code and aggression. The bureaucratic technique employed was simple; the mandate of the committee drafting the code was altered in 1952 by having a separate committee established to define aggression. The first of these two committees was comprised of experts, but the second was comprised of government representatives to ensure that the political will of the states would be adequately protected by their representatives. But, the general assembly also established a separate committee to deal with the statute of the international criminal court. Thus, there were 3 committees whose compositions were different and who met at different places (Geneva and New York) and at different times. From a Realpolitikperspective, there could not have been a better way to conceal the politics involved than to develop this elaborate bureaucratic scheme. And for those who are thinking that these types of political games are something of the past, may I remind them that the games are still ongoing in connection with activities such as the establishment of commissions of inquiries by the Human Rights Council, special procedure mandates, and other similar fact-finding mechanisms established by the Security Council and the General Assembly. One of the corollaries of this bureaucratic gamesmanship is not only the establishment of separate structures with separate mandates but also having different personnel and resources, thus distinguishing between those fact-finding bodies and mechanisms that have political support and thus can be put on a fast-track with adequate resources and personnel, and those who are to be put on a slow track with an ambiguous mandate, limited personnel, and limited resources.
The committee dealing with the statute of the Court met in New York in 1950, and by 1951, it produced a draft statute. But by then, the committee on the draft code of offenses had hardly made progress. Thus, the committee of the court went back to the drawing boards and produced a text in 1953, but again, by then, the committee of the code had not completed its work, and the new committee on the definition of aggression, which was established in 1952, had hardly started to work on its mandate. Consequently, the General Assembly tabled the 1953 draft statute of the international criminal court, pending the completing of the draft code of offenses against the peace and security of mankind. That committee, however, completed its work in 1954 and submitted it to the General Assembly, which promptly tabled it because the committee on defining aggression (established in 1952) had not completed its work. Consequently, both texts were tabled and remained tabled until 1978. The definition of aggression was finally completed in 1974 and was adopted by consensus by the general assembly—thus without a vote. This means that no state could ever be said to have voted for or against the definition of aggression. In keeping with the still strongly politicized question of what constitutes aggression, the Security Council to date never relied on the 1974 definition of aggression.
Even though aggression was defined in 1974, thus completing the missing part of the Draft Code of Offences Against the Peace and Security of Mankind, it was not until 1978 that the General Assembly, under strong pressures from a number of NGOs, including the AIDP, referred the 1954 Draft Code of Offences to the International Law Commission (ILC). It did not, however, refer to the ILC the 1953 draft statute for an international criminal court, once again revealing the intention of states not to have much progress with respect to international criminal justice.
The ILC took two years to start working on the Draft Code of Offences, which it renamed the Draft Code of Crimes, by appointing as Special Rapporteur Mr. Doudou Thiam of Senegal, who was advanced in age, did not know English, and had little familiarity with the subject. This too is a well-known UN technique to ensure that things progress slowly. Mr. Thiam worked on the Draft Code of Crimes and produced a text in 1991, which was so riddled with questionable legal issues that it was roundly criticized and, for all practical purposes, set aside. This suited most major governments. But, in 1992, the Security Council established a commission of experts (see SC Res. 780 | 6 October 1992) to investigate violations of international humanitarian law in the conflict in the Former Yugoslavia. I was first appointed member, then Chair of the commission. By 1994, I had produced a Report accompanied by 3,500 pages of annexes with the recommendation that the Security Council establish a special international criminal tribunal to prosecute these crimes. The Security Council did so, and the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established. In my capacity as Chair of the aforementioned commission, I had the privilege of working on the definition of the crimes contained in the ICTY statue. Shortly thereafter, the Security Council also established the International Criminal Tribunal for Rwanda (ICTR). Thus, two ad hoc international criminal tribunals existed.
Earlier, in 1976, I had been appointed to a committee in South Africa by the then-Chief Justice of the Supreme Court of Senegal, Kéba Mbaye, who, as fate would have it, became a member of the UN Security Council Committee on the former Yugoslavia (which I had the honor of Chairing). Chief Justice Mbaye was a highly distinguished jurist who also became President of the International Court of Justice (ICJ). But, in 1976 he was Chair of a committee in South Africa dealing with apartheid in that country. The UN had just adopted the Apartheid Convention, and unbeknownst to many it contained an article (namely Article V), which provided for the establishment of an international criminal court to prosecute those who engage in apartheid in South Africa. Chief Justice Mbaye provided me with a special appointment to draft this, and I thus became the author of a first official draft statute for an international criminal court since the UN Committee set up for that purpose had produced its draft in 1953. The text, which I completed in 1977, did not go very far, but it surfaced again before the ILC in 1993 when that body was seized with the question by a resolution of a special session of the General Assembly on drugs held in New York in 1978. Once again, fate had it that I was called upon by the then-Prime Minister of Trinidad and Tobago (later President of that country), Arthur N. R. Robinson, who was one of those leaders supporting this radical idea. President Robinson invited me to New York the night before his state introduced a resolution for the establishment of an international criminal court to prosecute international drug trafficking. It was reminiscent of what Pella did at the League of Nations in 1937 with respect to terrorism. But, the US and other states were not keen on the idea, and they found an elegant way of referring the matter to the ILC. Professor James Crawford of Cambridge became the rapporteur on the topic; he used the draft statute I had prepared to implement the Apartheid Convention, and a very similar text was produced in 1994. By then, the ICTY and ICTR had been established, and the winds of international criminal justice were strong. The General Assembly established an ad hoc committee to examine the issues pertaining to establishing an international criminal court. Egypt nominated me, and I was elected the Vice-Chair. Subsequently, the General Assembly established the Preparatory Committee, which met from 1996 to 1998. The Committee held its final sessions in March and April of 1998. Again, I was proposed by Egypt and elected Vice-Chair of the Committee. During the two years of the Preparatory Committee, due to the amount of work needed and the unwillingness of the General Assembly to provide more session times, I had the good fortune of the being in a position to advance that work, as I was President of ISISC, which was founded by the AIDP in 1972. As a result, I was able to host four intercessional meetings at the ISISC in Siracusa, where the delegates were each able to come for one week sessions and prepare text and reports for the official sessions of the Preparatory Committee held in New York. Ultimately, the work produced by the Preparatory Committee was completed in April 1998, and the diplomatic conference was set for June of that year. There was hardly enough time for the final text to be edited and translated. In fact, most governments received translated copies in late April or early June, just before the diplomatic committee was to open. The text contained over 1,100 alternative provisions and was quite complex. Once again, fate had it that I would play a role in the final act of this historic progression. I was unanimously elected to serve as Chair of the Drafting Committee of the drafting conference. But what was significant was my experience with all of the UN preparatory work described above, as well as 30 years of active engagement in that subject, the least of which was not my drafting of the 1977 UN statute for the establishment of an international criminal court for apartheid. Had I not been fully familiar with the three-year history of preparation of the text and all of the attending issues pertaining to each and every article, it is doubtful that the drafting committee would have been able to complete its task in Rome. Even so, many of us spent long hours and sleepless nights, particularly during the last week.
When the Committee of the Whole convened to approve the text, I was sitting on the dais next to its Chair, Philippe Kirsch, and having on my right the UN’s Legal Counsel who was on a mobile phone to then-Secretary General Annan (who was in Brazil) to make sure that he could catch a special plane to arrive in Rome the next day to preside over the opening of the treaty for signatures by states. No one who was in that room will ever forget the joy of the moment: there were cries of joy and tears, people hugging one another, and so many other
manifestations of happiness. This was indeed a day to celebrate another big step for humankind, and it was my privilege to have been part of it. At that moment, I remember sitting in the classroom in the University of Geneva Law School in 1957, hearing Professor Jean Graven speak of a permanent international criminal court that the AIDP had long championed. And there I was, many years later, the heir to that legacy, and the proud and active participant in the many years that brought about this moment of great accomplishment.
Trinidad & Tobago Stamp
Commemorating the ICC, 1998
Thus, the convergence of the work of the Security Council and the ILC with the strong presence of NGOs, particularly the AIDP, produced the extraordinary result that led to the General Assembly’s establishment first of an ad hoc committee for a year to explore the issues of an ICC, then a preparatory committee which worked on the draft statue, and finally the General Assembly adopting a resolution for the convening of a diplomatic conference, which was hosted by Italy and convened in Rome between 15 June to 17 July 1998. It was my good fortune to have been unanimously elected by the General Assembly to be the Chair of the Drafting Committee after having served as Vice-Chair of the
Ad Hoc and the Preparatory Committee for the preceding four years. But if I thought those four years were difficult, they were nothing like the five weeks of the diplomatic conference.
I started teaching at DePaul University College of Law in 1964 and though I had an interest in international criminal law, I was assigned to teach US domestic criminal law, and I waited in line to have the opportunity to teach international law and later international criminal law. But, in 1968 another unexpected event took place: the AIDP’s American national section was caught without a rapporteur on the topic of extradition to the 1969 international penal law conference. The late Professor Gerhard O.W. Mueller selected me for the task, and from one day to another I found myself in the midst of the world’s pantheon of international criminal law experts. Almost everyone who had written about international criminal law in the 1920s was at that gathering. And here I was: a young, freshly minted Associate Professor sitting amongst them as a peer. Somehow I must have impressed them, for, by 1972, I became the Deputy Secretary General of the AIDP and then in 1974, Secretary General (I was re-elected a total of 3 times, totaling 15 years, during which I led the organization in the direction of supporting the establishment of a permanent international criminal court). In 1989, at the centennial of the Association in Vienna, I was elected President for 3 terms until 2005.
In 1969, a great surprise occurred at the AIDP’s conference on 4 October: Pope Paul VI received the AIDP board in Paris and made a speech in which he urged the pursuit of justice as an indispensible component of the pursuit of peace. It was on that occasion that he stated, “if you want peace, work for justice.” The AIDP was once again moving the international community in a most visible way and with the support of the Pope in the direction of international criminal justice. But even before that, though little known, on 18 May 1946, then-Judge Donnedieu de Vabres, during a recess of the IMT, convened a meeting in the IMT court room in the bombed city of Nuremburg comprised of experts to capitalize on the Nuremberg experience in order to establish an international criminal court. This was the first post-war session of the AIDP in the IMT courtroom at Nuremberg. Several judges of the IMT were members of the AIDP. Among the participants were IMT judges Biddle, Birkett, Donnedieu de Vabres, Herzog, Falco, and Nikitchenko, as well as British prosecutor David Maxwell-Fyfe, and representing Robert Jackson, Colonel Egbert.
To any of the readers who wonder how it is that one can be part of such an accomplishment, my humble answer is perseverance, hard work, and the good fortune of being at the right place at the right time.
M. Cherif Bassiouni