In March 2008, I enjoyed the privilege and excitement of attending the ceremony at which the first MacArthur Award for International Justice was conferred on Kofi Annan. It was a sparkling affair very similar to the one we are enjoying today. It did not enter my mind on that occasion that I might be the second recipient of this prestigious award. I shall never forget my astonishment and delight when Jonathan Fanton gave me the news, much in confidence, in the second half of last year.
When I received the news, I could not but help reflect on the unexpected trajectory of my career during the past fifteen years. At the Bar I practiced exclusively in the civil law area and especially commercial and company law. As a judge I did try some criminal cases but the bulk of my work was again in the civil law area. Between 1991 and 1994, I did investigate incidents of violence and especially by the police authorities against Black South Africans protesting the indignities and oppression of the Apartheid system. I had never been a prosecutor; I had no knowledge of international humanitarian law; and I knew little about the former Yugoslavia.
So, I was not an appropriate person to be appointed as the Chief Prosecutor of the first truly international criminal tribunal. How did that come about? It was all about politics. The Security Council decided that by joint action with the General Assembly the eleven original judges would be appointed. They were elected in September of 1993. Because of the sensitivity of the position of the Chief Prosecutor, the Security Council decided that, on receiving a nomination from the Secretary-General, Boutros Boutros-Ghali, it alone would appoint the Chief Prosecutor by consensus. In other words all fifteen members of the Council would have an effective veto.
The first chief prosecutor they unanimously appointed was the then Attorney-General of Venezuela. He resigned for personal reasons within three days of taking up his appointment in January 1994. That was followed between January and June, 1994, by no less than eight nominees of the Secretary-General being vetoed by one or other of the members of the Security Council. Russia vetoed nominees from NATO, the UK vetoed a nominee from the United States, and Pakistan vetoed nominees from the UK and India. By this time the judges were angry and frustrated. They had spent much time and effort in drafting the rules of procedure and evidence and yet in the absence of a prosecutor no work was being prepared for them in an almost non-existent Office of the Prosecutor. They were discussing mass resignation.
At that point a bright French judge suggested to the then President of the ICT, Antonio Cassese, that if a South African could be found who had the approval of newly elected President Nelson Mandela, no member of the Security Council would dream of vetoing that nominee. Because of my investigations of violence in my own country, I was the person identified. I really was not interested in accepting the invitation for the reasons I have mentioned - I was hardly qualified for the position.
However, two people had different ideas. Within a short few hours of my receiving the invitation to become the Chief Prosecutor, my wife, Noleen, tried to persuade me that it would be pleasant to live for a few years in The Hague. One of her reasons was that I had for the preceding few years been under death threats and could not move around without security. This hardly convinced me! Within minutes I received a call from Nelson Mandela. He informed me that South Africa was indebted to the United Nations for its role in bringing down the Apartheid system. He said that he would like me to accept the United Nations’ invitation. He also informed me that he would like to appoint me as one of the first of eleven justices on our new Constitutional Court. He added to my amazement that the Cabinet had agreed to amend our very new Constitution to enable me to take a two-year leave of absence from the Court in order to go to The Hague. As if that was not sufficient he concluded by saying that he had informed the Secretary-General that I would not refuse to accept the appointment. Well, there was little I could do. To upset my wife was one thing. To refuse that kind of request from Nelson Mandela was quite impossible.
In the following months my learning curve was a steep one. I learnt a lot of new law, history and politics. Fortunately, I was soon surrounded by outstanding experts in all the relevant fields and they made it possible for me to go about setting up the Office of the Prosecutor.
From the start I had strong encouragement and assistance from non-governmental organizations. International and domestic human rights groups obviously wanted the ICTY to succeed. They played a wonderful role and I will always be grateful to them for it.
The MacArthur Foundation has played a signal role in support of international criminal justice. In particular it has supported the crucial efforts of non-governmental organizations that have given support and encouragement for the work of the two United Nations ad hoc tribunals for the former Yugoslavia and Rwanda, the mixed tribunals and more recently, the International Criminal Court.
There is today a new and growing international judiciary — over 300 judges who preside over international and transnational courts. They have their own problems and opportunities that are different from those encountered by domestic judges. The Center for Ethics, Justice and Public Life located at Brandeis University in Boston, is playing the leading role in bringing together many of those judges at a series of colloquia where they are able to discuss amongst themselves their common concerns in a congenial and confidential setting.
The MacArthur Foundation was responsible for the International Bar Association setting up a Monitoring and Outreach Unit here in The Hague to objectively monitor and make public comment on the activities of the ICC and to report publicly on its activities. I am happy to say all of the organs of the Court are cooperating with this Unit. Through the IBA’s 195 constituent bars it is also able to educate lawyers and lawmakers about the importance and role of the ICC.
As an American Foundation, MacArthur acted as an important counter-weight to the misguided and largely failed policies of the Bush Administration with regard to international justice. And, it has not only been financial assistance as crucial as that might be. It has come with the personal interest and wise counsel of the President of the Foundation, Jonathan Fanton and his admirable staff.
These factors all go to make tonight’s proceedings so special and meaningful. There is the added joy of having so many friends present, many of them having traveled long distances.
It is also by strange coincidence that today’s function should be held in The Hague. Quite by chance I am in the midst of a most enjoyable stay in Wassenaar, just outside The Hague where I am the first Spinoza Fellow with the rather grand title of “The Hague Peace Philosopher”. This is a new annual fellowship sponsored by the Netherlands Institute for Advanced Study, The City of The Hague, Leiden University, and Radio Netherlands World.
An unusual provision of the MacArthur Award is privilege granted to me to suggest non-governmental organizations in the field of international justice for grants totaling $500 000. Following the example of Kofi Annan, I decided to suggest the allocation of $100 000 to each of five organizations. Their names have been made public this evening and it makes this ceremony all the more special that they are represented here tonight.
It is appropriate that tonight’s Award really honors the role played by the two United Nations ad hoc tribunals. I am mindful that their successes are the result of the roles played by so many people. The judges, the Courts’ administrative officers and, of course, the outstanding members of the Offices of the Prosecutor in both tribunals all played indispensable roles. Without their hard work, dedication and support, I would not be the honoree this evening.
The significance and importance of international criminal justice is the new culture of accountability for war criminals that it has created. Until the ad hoc tribunals were established by the Security Council in 1993 and 1994 there was effective impunity for those who committed the most heinous crimes known to humankind — genocide, crimes against humanity and serious war crimes.
War criminals are usually regarded as heroes at home. Their crimes are not investigated and they are never prosecuted. Indeed, as recent prosecutions demonstrate, sovereign states tend to protest and demonstrate strong resentment when their leaders are sought for prosecution before an international court. That was the attitude of Serbia whose leaders regarded the ICTY as a political instrument established by the United States. It was also the attitude of the Croatian Government with regard to their military leaders. The Rwanda Government would certainly have severed its crucial relationship with the ICTR if the alleged crimes of the Rwanda Army had been made the subject of investigation. At the very least the two ad hoc tribunals made some top leaders accountable. One thinks of Slobodan Milosevic, Radovan Karadzic, Ante Gotovina and other senior military leaders in Croatia and in Bosnia and Herzegovina. There were also the former leaders of Rwanda who stood trial and were convicted by the ICTR. This was unprecedented.
The idea of political and military leaders being made accountable has become infectious. It led to the mixed tribunals and the current trial of the former leader of Liberia, Charles Taylor. A former leader of the Khmer Rouge is presently on trial before the Cambodia Tribunal. And, there is the recent warrant of arrest issued by the ICC against the President of Sudan. The military campaign by the Israel Defense Force against Hamas in Gaza has become the subject of two inquiries launched by the United Nations. There is now discussion of a similar inquiry into alleged war crimes committed in Sri Lanka.
This movement towards a culture of accountability is also taking seed within sovereign states. Truth and Reconciliation Commissions are one means of achieving some form of accountability in the aftermath of serious human rights violations and they are proliferating. A glance at the website of the International Center for Transitional Justice will demonstrate this. Other approaches to dealing with fraught and disputed history will be found on the website of young NGO based in Salzburg and The Hague, the Institute for Historical Justice and Reconciliation. In the United States there is now a controversial but healthy debate as to whether steps should be taken to establish the responsibility of leaders in the Bush Administration for the torture of persons subject to US control. Physicians for Human Rights is playing a leading role in exposing the disturbing role of members of the United States medical profession who facilitated torture and other forms in inhumane and degrading treatment — all in contravention of the law of the United States and the Torture Convention to which the United States is a party.
A few years ago there would have been disbelief at the idea that before the end of the first decade of the 21st Century, well over half of the members of the United Nations would ratified the Rome Statute, thereby making their nationals amenable to the jurisdiction of an international court. In this area too, the MacArthur Foundation is playing an important role.
There are a significant number of leaders around the world who feel less secure than they would have a few years ago. Some are no longer able to travel freely. I would refer to President al-Bashir of Sudan. He was unable to attend the recent inauguration of the President Zuma because the South African Government informed the Sudanese Government that South Africa was obliged by the Rome Statute to arrest him and send him to The Hague for trial. There are a host of countries which President Mugabe would not be allowed to visit. I would suggest that there are some in the former United States Administration who would think twice before visiting some countries in Western Europe.
Of course, one cannot get away from the political hurdles in the way of the development of international justice and the culture of accountability that it establishes. Without the cooperation and assistance of governments the whole endeavor will fail.
All international prosecutors have faced the wrath of politicians for the timing of the issue of indictments. I suffered that fate when Radovan Karadzic and Ratko Mladic were indicted whilst the Balkan war was still raging. My successor, Louise Arbour suffered the same fate when she indicted Milosevic during the NATO bombing campaign over Kosovo. David Crane had the similar criticism when he unsealed the indictment of the Special Court for Sierra Leone in respect of Charles Taylor.
I need hardly remind this audience of the storm of criticism that has erupted in many countries at the arrest warrant issued against the President of Sudan, Omar al-Bashir. The Prosecutor, Luis Moreno Ocampo has been blamed because, on the public announcement of the issue of the warrant, al-Bashir expelled thirteen aid agencies from Darfur. That expulsion constituted serious criminal conduct on the part of the President and compounded the crimes for which his arrest is sought by the Court. It is, I would suggest, an added reason for his arrest and not a reason for criticizing the issue of the warrant. In any event, in seeking the arrest the Prosecutor was carrying out his mandate under the Rome Treaty, and in issuing the warrant the judges were doing theirs.
To achieve wide acceptance, a culture of accountability must be based on principles of equality and fairness. That is the challenge now faced. It is not satisfactory that all of the situations before the ICC come from Africa. As we have heard this evening from the Prosecutor situations on other continents are likely in the near future.
It is not satisfactory that the accountability of Israel for its recent military campaign in Gaza sought by some members of the United Nations Human Rights Council should be partial and not even-handed. The terms of the resolution of the Human Rights Council of April, 2009 appeared to me and many others as being partial and biased. That was the view of the members of the European Union. It was the reason that initially I was not prepared to accept an invitation the President of the Human Rights Council to head a fact finding mission on Gaza. I indicated to the President, Ambassador Martin Uhomoibhi of Nigeria, that I could not agree to do so unless alleged war crimes and human rights violations on all sides were subject to the investigation. He decided, I would suggest courageously, that what I wanted was implied in the resolution and that he would make it absolutely clear in the mandate he was authorized to give to the Fact Finding Mission. He was true to his word and the mandate that the four members of the Mission have accepted is “to investigate all violations of International Human Rights Law and International Humanitarian Law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.” Ambassador Uhomoibhi explained the mandate to the Council at a plenary session and the members of the Mission have discussed it explicitly with the Ambassadors of all the nations that sponsored the original resolution. There is no objection to it. That is the mandate the Mission will pursue to the best of its ability. There is really no justification now for any government, including Israel, to refuse to cooperate with the Mission.
That an even-handed mandate was given to the Mission is an important step in the right direction. I hope that it is an indication of a new direction for the Human Rights Council. In this context it is encouraging that the United States will end its boycott of the Council and take up a seat from next week. I would suggest that the engagement favored by the Obama Administration rather than the isolation of the Bush Administration is the way forward.
The United States is crucial to building an international culture of accountability. It is not by chance that the most powerful nations are still outside the ICC tent. In addition to the United States, there is China, Russia and India. The powerful have an instinctive aversion to outside scrutiny and without their inclusion the weak have a compelling excuse to avoid scrutiny and accountability.
This brings me to the place of the rule of law in the international community. It has now become axiomatic that no nation can claim to be a democracy without recognizing and implementing the rule of law. All within a State have to be subject to the law, whether powerful or weak, rich or poor. There have to be open and independent courts whose decisions are accepted and implemented by the executive. And, not least, the laws must, to the extent possible, be certain and understood by those subject to it.
These principles of the rule of law are not easy to apply to the international community. Within States there is a sovereign power. In democracies, it is the legislature. There is no equivalent sovereign power in the international community. However, international law, although not the product of one sovereign authority, is becoming wider in its reach and its acceptance by States. This trend is a child of necessity — as the world contracts, nations become more inter-dependent. That inter-dependency makes reliance on law more necessary. The result is that international laws, binding on all States, whether by treaty or by custom, are proliferating. It is becoming more difficult, especially for democracies, to isolate themselves from this trend. This is well illustrated by the United States now taking active steps to end its relative isolation and its diminished prestige and power that resulted from the isolationist policies of the previous Administration.
I would suggest that the democracies will continue along this path. The movement will not be seamless or accompanied by the speed that most of us would hope for. However, as that movement becomes more prevalent, there will be increased pressure on undemocratic regimes to join the club and make its laws and practices consistent with international law. We can now begin to dream of a world in which the Rome Treaty has been ratified by all of the members of the United Nations. In that world there will be no place for war criminals to hide. For the first time there will be an effective deterrence of war crimes.
The role in all of this of non-governmental organizations has been of crucial importance. Without their advocacy, without their naming and shaming, without the courage of their workers who do not hesitate to put themselves in situations of danger, we would not have the movement to which I have just referred. Their ceaseless lobbying of political leaders, their missions and reports are no longer capable of being ignored by the lawless or the lawmakers. It is in that context that we should applaud the vision and programs of the MacArthur Foundation. Their role in this endeavor makes me so proud to receive this Award.