The 20th century was the bloodiest in history. It will be remembered for the millions of innocent children, women and men who needlessly perished in war.
The laws of war, or humanitarian law as it has come to be called, have been honoured in their breach. Wars have become synonymous with horrible crimes. The words “genocide” and “crimes against humanity” were coined because our lexicon was not able to express the horror of those crimes.
An essential ingredient for the success of criminal justice is the perception among the majority of people that laws are just and moral. During apartheid in South Africa, laws were designed to implement a system of racial oppression. For black South Africans, a prison sentence for violating those laws was a badge of honour.
A second illustration of a gap between law and morality arises from the Nato intervention in 1999 to stop ethnic cleansing in Kosovo. The Nato powers felt obliged to protect Kosovo’s Albanian population. A threatened veto by the Russian Federation resulted in the Nato powers using military force without the authority of a Security Council resolution. It was thus in violation of the United Nations Charter and illegal.
The intervention was for one purpose only — a humanitarian effort to save lives and property. The global community generally approved of that intervention. But a gap remained between international law that made the intervention illegal and the morality of protecting innocent people from war crimes perpetrated by a sovereign government.
Two international commissions have considered this question. The Prime Minister of Sweden, Goran Persson, established the Independent International Commission on Kosovo, which I had the privilege of chairing. It was that commission that found the Nato intervention to have been “illegal but legitimate”. The commission set out principles that it suggested should govern the use of military force against a sovereign state to prevent or stop the violation of fundamental human rights. The Kosovo Commission was followed by a Canadian initiative, which developed a theme that it called “The Responsibility to Protect”.
Those reports laid the intellectual groundwork for the consideration of this issue by the High Level Panel on Threats, Challenges and Change that was set up by the UN secretary general in 2003. The panel has made proposals designed to lend legitimacy to intervention when the citizens of sovereign states are the victims of serious human rights violations by their own government. The recommendation is that the Security Council and anyone else involved in such decisions should be bound by criteria that include seriousness of the threat, proper purpose, last resort and proportional means.
What of the prosecution of crimes against humanity? Prior to World War II, war criminals had no reason at all to fear prosecution. That changed with the decision by the victorious nations to hold the German and Japanese war criminals accountable. Military tribunals at Nuremberg and later in Tokyo were set up. In effect, those tribunals gave birth to international criminal justice.
The first legacy of those tribunals is universal jurisdiction for the most serious war crimes. That followed from the recognition in the Nuremberg Charter of “crimes against humanity”. In other words, jurisdiction should depend not on where the crime is committed, but on the nature of the offence.
The second legacy of Nuremberg took longer to emerge. This was the establishment of international war crimes courts. After Nuremberg, it was assumed that a permanent international criminal court would be established, but it was only in 1993, in the face of the massive war crimes committed in the former Yugoslavia, that the Security Council established the International War Crimes Tribunal for the former Yugoslavia. The Rwanda Tribunal followed in 1994.
The third legacy of Nuremberg is that judicial proceedings have effectively recorded the history of massive crimes and in that way stopped fabricated denials of them. The denials that accompanied the commission of war crimes in the former Yugoslavia and Rwanda have ceased in the face of hundreds of victims who have testified before the tribunals.
These successes fuelled the movement to establish the International Criminal Court (ICC). They induced Secretary General Kofi Annan to call a diplomatic conference for that purpose in Rome in 1998. By an overwhelming vote of 120 to seven, the statute of the ICC was approved. It was nothing less than tragic that the United States, until that time the prime supporter of such a court, was one of the seven. Since then, 97 nations have ratified the treaty. The African region leads with 26 state parties (among them South Africa), followed by Western Europe with 25. In the last 60 years we have moved from a world with no international criminal justice to a world that has begun to shape a sophisticated system for apprehending and prosecuting war criminals.
It is significant that two African heads of state have themselves referred the first two cases for investigation to the prosecutor of the ICC. Those references have come from the presidents of the Democratic Republic of Congo and Uganda. There were recent reports suggesting that, in the Uganda case, warrants of arrest are soon to be issued. Referrals have also come from the Central African Republic and Côte d’Ivoire.
The Security Council has important powers with regard to the ICC. It is able to suspend proceedings before the ICC. It also has the power to refer cases to the ICC.
In the past two weeks the members of the Security Council have been considering a strong recommendation to refer the investigations of serious violations of international humanitarian and human rights laws by the Sudanese government in Darfur. The recommendation comes from a panel of experts requested by the secretary general to investigate and report on such violations.
Reason and logic would dictate that the Security Council should act quickly and with unanimity on such a recommendation. The reason for delay is the antagonism of the Bush administration towards the ICC. Notwithstanding its determination that genocide is being committed in Darfur, the United States is resisting a reference to the ICC because, it says, that would confer legitimacy on the court. To avoid that, the US has suggested extending the jurisdiction of the Rwanda Tribunal in Arusha to cover crimes committed in Darfur.
Apart from the political and moral objection to this US response, it is impractical and would cause unconscionable delay. The Rwanda Tribunal is in the process of bringing an end to its investigations in order to meet the expectation of the Security Council that its work will end by 2010. It would take a year or more to have the necessary resources in Arusha to enable that tribunal to begin to investigate Darfur. The ICC is up and running and I know that the prosecutor would immediately be in a position to act on a referral from the Security Council.
I would recommend very strongly that the African members of the ICC should say loudly and clearly that it is not prepared to allow the unfortunate and unjustifiable antipathy of the US towards the ICC to delay if not deny justice to the victims of Darfur. They should add their support for a referral to the ICC.
This is an edited version of a speech delivered in Abuja last week. It was hosted by the MacArthur Foundation of Chicago, which supports education and democracy in numerous countries. Goldstone, a former Constitutional Court judge, has served as chief prosecutor of the international criminal tribunals in the former Yugoslavia and Rwanda, and is currently Henry Shattuck visiting professor at Harvard Law School