Heed the Lesson of Nuremberg: Let No Nation Be Above the Law

By Benjamin Ferencz

Published November 18, 2005, issue of November 18, 2005.
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“We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow,” Chief Justice Robert Jackson warned at the opening session of the Nuremberg war crimes tribunal, on November 20, 1945. “To pass these defendants a poisoned chalice is to put it to our own lips as well.”

As we mark the 60th anniversary of the Nuremburg trials this week, it increasingly appears that Jackson’s warning is falling on deaf ears in America.

Six decades have passed since we condemned Nazi war crimes and crimes against humanity, since “Never again!” became a universal slogan. Six decades have passed, but the more peaceful and humane world we envisioned at Nuremberg — one protected by rules of law that bind all nations large and small — remains elusive.

In response to the tragedy of the Holocaust laid bare at Nuremberg, the United Nations assigned legal committees to codify international law and establish a permanent international criminal court. The proposed court, commonly known as the ICC, would help deter such crimes in the future by holding personally accountable those leaders responsible for genocide and massive crimes against humanity. But faced with opposition by conservative American senators, it took 40 years before our government ratified the Genocide Convention in 1988.

A decade later, American obstinacy against codifying international law was again on display. In 1998, high representatives of 120 nations voted to accept carefully negotiated statutes for a permanent ICC. It was a historic achievement, hailed by U.N. Secretary General Kofi Annan as “the hope of future generations.”

Only seven countries voted against the new court. The United States, under pressure from the Pentagon and congressional conservatives, was among them. So, too, was Israel, which found, despite having worked long and hard for the establishment of such a court, a minor technicality for objection and reluctantly followed the United States in voting “no.”

The next year, President Clinton told the U.N.’s General Assembly that he supported the establishment of an ICC. On December 31, 2000, shortly before he left office, Clinton instructed his ambassador, David Scheffer, to proceed to the U.N. on a snowy New Year’s Eve to sign the ICC treaty. By pre-arrangement, Israel again followed America’s lead and signed.

However, without ratification by two-thirds of the Senate, America’s signing of the treaty merely indicated support for the ICC’s goals and bound it only to not sabotaging its objectives. The powerful chairman of the Senate Foreign Relations Committee, Jesse Helms of North Carolina, quickly made clear his unalterable opposition to the ICC. And so, despite hesitations by several other major powers, including China, India and Pakistan, nearly 100 nations ratified the Rome Treaty in record time and the ICC went into effect July 1, 2002 — without America’s participation.

Helms no longer serves in Washington, but the Republican administration of President Bush has more than made up for the senator’s absence. Two months before the Rome Treaty was ratified, John Bolton — a protégé of Helms who was then an assistant secretary of state and is now America’s ambassador to the U.N. — sent a one-paragraph letter to the U.N., stating that the United States has no intention of ever becoming a party to the Rome Treaty, and hence is not legally bound by Clinton’s signature. The repudiation of the official signature of an American president was unprecedented, and was seen by many as an unnecessary slap in the face of the great number of nations that had supported the ICC.

The Bush administration, backed by the Republican-led Congress, has boycotted the new court and done everything possible to destroy its power. Opponents of the ICC allege that its prosecutors may subject American servicemen to politically motivated charges that would inhibit foreign intervention for humanitarian purposes. Yet no other country in the world has raised this objection.

In fact, according to its own statute the ICC is permitted to deal only with crimes “of concern to the international community as a whole.” This means that only leaders responsible for planning or perpetrating major crimes against humanity will be targets of the court.

The Bush administration’s other objections to the court are equally untenable. To begin with, guilty knowledge and criminal intent must be established beyond reasonable doubt. Furthermore, the U.N. Security Council can direct the ICC to suspend any prosecution that might interfere with peace negotiations. And American objections on constitutional grounds are also unsupported by the facts.

Jingoistic slogans about protecting national sovereignty may sound appealing to an uninformed public, but try as the current administration might, it cannot eliminate the need for certain universally binding rules of humanitarian law in an increasingly interdependent world.

Simply put, current American fears are both misguided and unpersuasive. Not only does the ICC’s carefully negotiated statute guarantee no retroactivity and fair trials, but it also requires nations to have priority to try their own citizens. The ICC can exercise jurisdiction only if the state of the perpetrator is unable or unwilling to provide a fair trial.

No prosecutor in human history has been subjected to as many controls as exist in the ICC. The prosecutor is under strict administrative and budgetary controls of the court’s Assembly of State Parties, which includes such staunch allies of America as Great Britain, Canada, Australia and the European Union. The American Bar Association, every former president of the American Society of International Law and a host of the most renowned and respected international lawyers in the United States, Israel and around the world support the ICC.

How, then, to explain America’s objections — which, to many informed observers, seem to border on the irrational?

The American public deserves to be told the truth: The stated opposition of the Bush administration to the ICC is a sham. It is disgraceful that our government expects the rest of the world to simply swallow the argument that the United States is above the law. Those who oppose the ICC — whose most fundamental premise is that law applies equally to everyone — do not believe in the rule of law.

One need only look at the American Service-Members’ Protection Act to find evidence of the administration’s belief in American exceptionalism. The legislation, mockingly called “The Hague Invasion Act” by many Europeans, authorizes the president to use “all necessary means” to liberate any American who might be held in custody by the ICC in The Hague.

For further proof, one could examine the various “immunity agreements” that all nations receiving American aid are requested to sign. If they refuse to stipulate that no Americans, or their employees, will be sent to the ICC, the nations risk forfeiting all American military and economic aid — even if the recipient country needs the funds in order to pursue terrorists and drug traffickers.

Such irrational behavior, of course, can only evoke suspicion about American intentions and resentment toward Washington by intimidated signatories. Not one single American has been helped in any way by these coerced agreements — not one.

And little wonder that many are suspicious of our intentions. Earlier this year, Secretary of Defense Donald Rumsfeld proclaimed America’s intention to bypass, if necessary, restraints on the use of force codified by the U.N. Charter. Washington reserves the right, he warned, to anticipate hostilities and to strike first and pre-emptively — alone, if necessary — to counter a perceived threat to our national security.

Now, I do not wish to compare any Americans to the Nazi leaders. But after hearing Rumsfeld’s words, I could not avoid being reminded of the argument put forward by the lead defendant in the Einsatzgruppen trial at Nuremberg, S.S. General Otto Ohlendorf. When asked to explain why his unit murdered more than 90,000 Jews, including their children, the remorseless defendant casually explained that it was justified as anticipatory self-defense.

Germany anticipated an attack from the Soviet Union, Ohlendorf argued, and since Jews were perceived as supporters of Bolshevism, they presumably posed a potential future threat to German national interests. And if Jewish children knew that their parents had been executed, he continued, they, too, might become enemies of Germany, and therefore they had to be killed.

In a carefully reasoned judgment by the three judges presiding over the case — all of them American — Ohlendorf’s defense was held to be untenable, and the S.S. general was hanged.

Sixty years later, I am afraid, this and other lessons from Nuremberg are lost on the Bush administration.

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