Interventions (19 page)

In the end, it was a very close call. I had spoken at the opening of the Rome conference of 1998, convened to adopt a convention on the establishment of an international criminal court, but as the draft was moving toward a vote, I was on an official visit to Argentina. My legal advisor Hans Corell was in the conference room with his team. I told him that if we were likely to get an agreement, I would break off my journey and join them in Rome.

On the day they were supposed to take a vote, India proposed a “poison pill”—an amendment that would have killed the whole process. If the amendment was defeated, that was the last obstacle to be overcome. If the amendment passed, then there would be no court. The existence of the court was on a knife-edge.

I phoned Corell and said, “I'm going to a meeting. The last flight out of Argentina for Rome leaves in an hour and a half. Let me know if we have an agreement.”

“Well I don't know,” he replied. “Call me in twenty minutes.” His call was put through to me twenty minutes later, and Corell held his phone in the air. “Can you hear it?” he asked. The amendment had been defeated and the mood was clearly euphoric.

I sent my apologies to my Argentinean hosts and headed to the airport. I made it to Rome for the signing of what is now the Rome Statute at one of the most extraordinary meetings of my professional life. Not only the activist NGOs but some of the governments that had fought for the ICC were clearly elated. There we were on the platform, with people spraying champagne, saying, “We did it! We did it!”

Beforehand, I had opened the conference in Rome by appealing to the delegates to proceed as if “the eyes of the victims of past crimes, and of the potential victims of future ones, are fixed firmly upon us. It was their cry for justice that had to spur us on to our final destination.” Our goal, I said, is a court that would “put an end to a global culture of impunity.”

This culture of impunity could not be eradicated with just the formation of the court, but when taking steps to advance its work we must remember what prompted us to act. It began in the burning villages of Rwanda, their paths, fields, and even their churches, strewn with corpses. And the next year, in the bombed-out buildings of Bosnia and the horror of Srebrenica, where upwards of eight thousand defenseless men and boys were shot and dumped into pits. In both cases, the UN and the international community failed tragically to take decisive and forceful action to protect the victims.

These terrible events did, however, shock the world into action. Ad hoc tribunals were set up to bring those responsible to justice and the Rome Statute had now established a permanent court to help end the global culture of impunity.

The parties to the establishment of the Rome Statute have much to be proud of. More than two-thirds of UN member states have, as of 2011, signed or ratified the Rome Statute, tipping the balance in favor of justice. In the face of war crimes, crimes against humanity, and genocide, the default position of the international community is now accountability, not impunity. Where credible allegations of such crimes are made, it is up to those denying the need for international justice to make their case and demonstrate that their own legal response is adequate.

The remarkable success of the creation of the court was the result of strong political will. Further progress will require vision, a strong sense of purpose, and even courage. Take my own home continent of Africa: encouraged by a few African leaders, the African Union in 2011 called on its member states not to cooperate with the ICC in enforcing the indictment issued against President Bashir of Sudan.

But it is not Africa that is hostile to the court, only certain leaders. When I meet Africans from all walks of life, they demand justice: from their own courts if possible, from international courts if no credible alternative exists. The ICC does not supplant the authority of national courts. Rather, it is a court of last resort, governed by the principle of complementarity—it is there to support people and nations in their pursuit of justice.

I am proud, as an African, of our continent's contribution to the success of this great undertaking. African countries and their civil society organizations played an active and progressive role in the creation of the ICC. Thirty of the countries in sub-Saharan Africa have become parties to the statute—the largest single regional block that has joined the court. I am proud, too, that in four of the five cases from Africa currently before the ICC, African leaders have either referred those cases to the court or actively cooperated with the investigations.

In doing so, these countries have sought the support of an international judicial mechanism in the face of their own limited judicial capacity. In the specific case of Kenya, where the ICC's prosecutor has, for the first time, used his own authority to initiate an investigation, he has undertaken his work with the cooperation of the Kenyan government. In all these cases, it is impunity, not the African countries, that is being targeted.

Some people in Africa—and elsewhere—have a genuine concern that our search for justice might obstruct the search for peace. They ask, “How do we convince the leaders of warring parties to make peace if prison awaits them?” Some allege that the prosecutor's work in Uganda and Darfur has delayed or hampered peace efforts. But Rwanda, Bosnia, Kosovo, East Timor—these and other cases have taught me that justice is a partner, not an impediment to peace.

The parallel pursuit of justice and peace does present challenges, but these can—and must—be managed. The prosecutor's discretion in matters of timing is crucial. So is the sensitivity of those mediating conflicts to the legal obligations arising from the Rome Statute. The choice between justice and peace is no longer an option. We must be ambitious enough to pursue both, and wise enough to recognize, respect, and protect the independence of justice.

Further progress also depends on states genuinely exercising their primary responsibility, as set out under the Rome Statute, to investigate, prosecute, and punish those responsible for grave crimes themselves. There must be no going back or lessening of momentum on the issue of impunity in world affairs. Our challenge is to protect the innocent by building a court so strong, universal, and effective that it will deter even the most determined of despots.

Questions of credibility will persist so long as three of the five permanent members of the Security Council—the United States, China, and Russia—refuse to reconsider their position and join those who have taken the courageous step to become parties to the Statute. Others that aspire to permanent membership on the Council also refuse to ratify the Rome Statute. It is my hope that support for the ICC will become a condition for joining any future reformed Security Council.

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M
ore than a decade after the Rome Conference, the International Criminal Court has begun its work. It is important to emphasize that the court exercises its jurisdiction only when a state is a party to the Rome Statute and is unable or unwilling to investigate crimes like genocide, war crimes, or crimes against humanity.

In the case of Uganda, for example, the court's help was—initially, at least—welcomed. In Kenya, by contrast, the ICC prosecutor himself initiated an investigation into the violence surrounding the 2007 election. But this was only possible following Kenya's ratification of the Rome Statute in 2005, and this signing and the ensuing investigation was supported by many in Kenyan civil society.

Sudan was a slightly different case. Given the reports of severe atrocities in Darfur from 2004, I asked Antonio Cassese, the former president of the International Tribunal for the Former Yugoslavia, to chair an international commission of inquiry to examine the nature of the violence. He concluded that there had been crimes against humanity, gross and systematic human rights abuses. He was cautious on the question of genocide, which has a specific legal meaning that crimes were committed with the specific intent to eliminate an ethnic or racial group. In addition, he gave me an envelope with fifty-one names that he said might properly be passed to the prosecutor of the ICC.

I went to the Security Council with the report, and told them about the envelope and the list of suspects. “I have not opened the envelope,” I said. “And I suggest you don't open it, either. I'm not even going to give it to you. I will send it on to the prosecutor.”

The Council passed a resolution formally referring the situation to the ICC, and I sent the unopened letter to the prosecutor, who later issued indictments for the crimes in Darfur following his own investigations. Among them was the president of Sudan.

Critics are correct that most of the early cases are from Africa. But that does not mean that Africa is being targeted. As I tried to make clear at the 2010 review conference in Kampala, which added a definition of aggression to the statute, the ICC is simply needed more in Africa because of the weaknesses of its judicial systems. As these systems strengthen, there will be less need for the ICC. But until then, as we saw once again in the role of the court in Libya in 2011, it provides a useful alternative.

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M
uch as the U.S. opposition to international criminal law resembles an act of faith, there are some advocates of prosecution that put it above any other consideration. “No peace without justice” is a cry sometimes heard in these circles. As we discovered in the tribunals for the former Yugoslavia and Rwanda in the 1990s, criminal prosecution may be used as a substitute for real action. In Yugoslavia it was in part an expression of outrage at Europe's inability to prevent massacres on its own doorstep; in the case of Rwanda, it was, perhaps, an expression of regret at failing even to try.

Yet the idea that all crimes against humanity can and should be prosecuted in international tribunals is naive. In the first place, the ICC statute makes it clear that international institutions should get involved only when national institutions fail. But a more interesting question is whether international involvement can actually undermine hopes for peace. This is the argument that one sometimes hears in the context of peace negotiations: if a leader has an indictment hanging over his head, what incentive is there for him to strike a deal in which he would lose his privileged position?

My own view is that the
threat
of an indictment is an important deterrent against abhorrent conduct, or can encourage a leader to change his behavior. If an indictment is issued too early, however, it can negate such leverage. This was a concern that we faced in Sudan with President Bashir. In Bosnia, it would have been impossible to get an agreement if Slobodan Miloševic had been indicted before the Dayton negotiations. Holding off on a possible indictment, however, is not the same as granting an amnesty.

What causes much misunderstanding in these situations is the assumption that, if you are unwilling to prosecute, then you are willing to give amnesties. In 1999, in Sierra Leone, the group demanding amnesty was the Revolutionary United Front, headed by Foday Sankoh. This group was notorious for its use of child soldiers, brutal mass rapes, and tens of thousands of amputations. It was inconceivable that the UN could lend its authority to such an amnesty.

The peace negotiations had reached an advanced stage without my involvement, and I did not want to derail the process completely. But the prospect of amnesties crossed a line. I took the very unusual step of instructing my special representative to Sierra Leone, Francis Okelo, to write into the agreement
by hand
that, for the UN, there could be no amnesty for genocide, war crimes, or crimes against humanity. The incident crystalized my views on the subject, and I later gave similar instructions to all my representatives and envoys engaged in peace negotiations to avoid such situations in the future.

As it happened, Sankoh broke that and other agreements. Military intervention by Britain and Nigerian forces ended the conflict a year later. He was later charged before the special court for Sierra Leone with seventeen counts of war crimes and crimes against humanity, but he had a stroke and died before he could stand trial. As the prosecutor grimly noted, Sankoh enjoyed the peaceful end that he denied to so many others.

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A
s I delivered my Nobel Prize lecture in 2001, I sought a way to link all of our grand aspirations for the organization to something more concrete, more real. And so I spoke of a girl born that day in Afghanistan. That girl's mother would hold her and feed her, comfort her and care for her—just as any mother would anywhere in the world. In such basic acts, humanity knows no divisions. Yet to be born a girl in Afghanistan in 2001 was to begin life centuries away from the prosperity that part of humanity has achieved, and under conditions many would consider inhuman.

Today's real borders are not between nations but between powerful and powerless, free and fettered, privileged and humiliated. The United Nations and its secretary-general cannot right all these injustices, but it is his or her job to speak to all the peoples of the world, and to speak for them when larger forces ignore them.

One of my predecessors in the post of secretary-general, Dag Hammarskjöld, said in 1954 that the United Nations was created not to bring humanity to heaven but to save it from hell. In the aftermath of World War II, with the world divided by a new Cold War and the looming prospect of a nuclear confrontation, his modesty was as ambitious as it was necessary.

Today, however, the UN has to be about more than simply saving succeeding generations from the scourge of war. That concern is only the first line of the Charter. In the lines that follow, it stresses the need to reaffirm faith in fundamental human rights, in the dignity and worth of the human person. The Charter was also a promise “to promote social progress and better standards of life in larger freedom.” I took those final words, “in larger freedom,” as the title of my most important report on UN reform, which was ably supervised by Robert Orr and Stephen Stedman. In that report, I argued that the UN must continue to play a role in peace and security, but that must be matched by its commitment to human rights and development.