"The Challenge of International Justice," Remarks by Jonathan F. Fanton to the U.S. Military Academy at West Point
May 5, 2008 | Speech | Human Rights

Thank you for that generous introduction.

I am glad to be here at the U.S. Military Academy, an institution deeply woven into the fabric of this country’s history. In 1902, President Theodore Roosevelt said, “No other educational institution in the land has contributed as many names as West Point to the honor roll of the nation’s greatest citizens.” After more than a century, that statement remains true – a compelling testimony to the enduring value of the Academy and its high ideals.

The John D. and Catherine T. MacArthur Foundation, has a shorter tradition: we were established in 1978. Our founder, John MacArthur, was a distant cousin of General Douglas MacArthur. The two certainly shared similar traits. Historian David McCullough writes, "You couldn't shrug your shoulders at Douglas MacArthur. There was nothing bland about him, nothing passive about him, nothing dull about him" (in Truman, New York: Simon and Schuster, 1992). That was equally true of John MacArthur. One of seven children of a penniless preacher, he made a fortune in insurance and real estate and left almost all of it to set up the Foundation. His instruction to the Trustees was characteristically terse: “I made the money, now you fellows figure out how to spend it.”

We have been spending ever since. With an endowment of $6.5 billion, MacArthur will give $300 million in grants and program-related investments to individuals and organizations in the U.S. and abroad this year. We reach 60 countries around the world, and have offices in Mexico, Russia, Nigeria, India, and soon China.

The Foundation aims to help build a more just, peaceful, and sustainable world. We do so through sponsoring research, educating the public, and supporting organizations that work in fields that range from conservation to international nuclear disarmament, from renewing America’s cities to creating high-quality documentaries for public television. In 2006, we made a grant that was unusual for us – $750,000 to West Point’s Program in Conflict and Human Security Studies to support coursework and overseas cadet internships with non-governmental organizations (or NGOs).

I have been impressed by the content and quality of the courses offered in Conflict and Human Security Studies – such as “International Conflict and Negotiation,” “Winning the Peace,” and ‘International Security Strategy.” The breadth of their approach, their awareness of the human dimension of conflict and restoring peace are impressive and encouraging. I met earlier today with cadets from the internship program: some had been in South Africa with The University of Cape Town’s Business School, helping township-dwellers start small businesses; others had been building houses in Chile and Kyrgyzstan with Habitat for Humanity; others still in Cambodia seeking to improve the lives of rural people with the organization Journeys Within our Community. The enthusiasm, maturity, and sensitivity these cadets brought to their internships was just what we had hoped for.

Learning to work with civilians and community organizations is central to peacekeeping and nation-building operations. In November 2005, the Secretary of Defense issued Directive 3000.05 that states: “U.S. military forces shall be prepared to perform all tasks necessary to establish or maintain order when civilians cannot do so.” You are well aware of the wide range of projects military personnel have undertaken in operations across the world, from overseeing road construction to establishing quality schools and clinics, from training police to opening village marketplaces.

Like the military, MacArthur works in challenging places, trying to strengthen women’s health programs in rural India, preserve biodiversity in Rwanda, or cut down police abuse in Nigeria. In all these places, we depend on local non-governmental organizations to take the lead. We can bring money, equipment, and expertise. But local organizations that know the culture, the political networks, the no-go zones actually get the work done.

Both MacArthur staff and military personnel work in remote places more effectively when we understand how to partner with local organizations. Like the army, we also collaborate with international NGOs – like CARE, Save the Children, Oxfam, and Médecins sans frontières – that have staff on the ground monitoring abuses and rebuilding shattered communities.

This work not only improves people’s lives but also contributes to more stable societies. Such societies are less likely to provoke wars, collapse into violent chaos, or foster terrorist organizations. Helping to build societies and strengthen their institutions serves the cause of enduring peace.

And so MacArthur is very pleased to support the internships here at West Point that get cadets into the field working with local communities, a program we hope will expand.

There is no shortage of NGOs with which to work – by one count, there are already five million of them, and new organizations are founded each year. The vision and engagement of these groups – together, called “civil society” – is helping to change the world for the better. Many of them concentrate on issues of human rights, justice for all citizens, and the rule of law – causes MacArthur has supported from our very first grant, which went to Amnesty International.

We fund large organizations that monitor abuses around the world, like Human Rights Watch, and small local institutions that tackle issues like child marriage in India, police abuse in Russia, and the rights of prisoners in Nigeria.

MacArthur holds passionately that individuals everywhere have intrinsic rights that should be enshrined in law and defended by due process. The U.S. has a Bill of Rights and courts that are responsive to wronged individuals, other countries have similarly clear and effective justice systems – but many nations do not.

Where are individuals to turn when they are denied freedom of speech, beaten by the police, subjected to harsh discrimination, or forcibly conscripted into rebel armies and there are no independent national courts to hear them? And how is the world to deal with genocide, war crimes, and the brutal acts called “crimes against humanity?”

MacArthur believes that the answer lies in an international system of justice that will supplement unresponsive local courts and provide a forum for those who have suffered the worst abuses. The international community has courts for other purposes, for example the International Court of Justice, International Tribunal for the Law of the Sea, or Dispute Settlement System of the World Trade Organization. These bodies have been functioning over many decades and are central to international relations.

But the time has come to develop an international system of justice with the International Criminal Court as the centerpiece. Let me describe the evolution and objectives of this movement.

The first Geneva Conventions of 1864 and the Hague Conventions of 1899 serve as the foundations for modern attempts to stop wartime atrocities. Tribunals for war crimes were proposed, but not effectively implemented, after WWI. The Nuremberg and Far East tribunals after WWII tried and convicted the most prominent Axis leaders, at last holding individuals accountable for their criminal acts – even when following orders.

The WWII tribunals were possible because there was international consensus among the Allied powers. The Cold War ended that consensus. Only when the Soviet Union had collapsed was there a new impetus toward establishing an international system of criminal justice, prompted by the disintegration of Yugoslavia and the infamous “ethnic cleansing” that followed.

NGOs, human rights activists, and diplomats called for a forum to deal specifically with such crimes against humanity when national systems failed to do so. The UN Security Council responded, establishing an ad hoc Criminal Tribunal for Yugoslavia in 1993 and another in response to the Rwandan genocide in 1994.

The results were encouraging. Slobodan Milosovic of Serbia was the first sitting head of state ever indicted; Jean Kambanda, former prime minister of Rwanda, faced charges of genocide, pled guilty, and is now serving a life sentence in Mali. With trials and appeals continuing, 239 people have been indicted and 78 convicted so far. New tribunals are now at work dealing with the atrocities committed in Sierra Leone’s civil war and Cambodia’s “killing fields.”

The early tribunals helped establish the feasibility of a permanent International Criminal Court (ICC). In 1989, preparation and drafting had begun for a Statute that would establish such a Court; it was completed in 1998 and is commonly called “the Rome Statute.” States were asked to ratify the Statute individually; by 2002 the required 60 had done so, allowing the Court to have jurisdiction. To date, 106 countries have ratified and joined the Court; the United States has not.

The Court, based in The Hague, is permanent and independent, dedicated to prosecuting only the most serious crimes against humanity. It has jurisdiction over acts committed on the territory, or by nationals, of States Party to the Statute. Also, the UN Security Council may refer a situation to the Court, regardless of the nationality of the accused or the location of their crimes.

The ICC is a “court of last resort,” which means that it has authority only when national courts are unable or unwilling to act. All member nations retain the primary right and responsibility to investigate their own citizens – the principle of complementarity, which the U.S. helped embed in the Treaty.

How is the Court performing so far? It issued warrants, beginning in 2005, against Joseph Kony, head of the Lord’s Resistance Army in Uganda, for the murder and torture of civilians; against Thomas Lubanga, leader of the UPF militia in the Democratic Republic of the Congo, for kidnapping children to become soldiers; and against Ahmad Mohammad Harun, formerly Sudan’s Minister of State for the Interior, and Ali Kushayb, leader of the Janjaweed militia, for their crimes in Darfur – the forced displacement of millions, and a campaign of terror including abduction, rape, and murder.

Lubanga is in custody and his trial expected to begin in June. It will be the first in the Court’s history. Two other militia leaders from the Congo are also in The Hague awaiting trial.

The two other cases exemplify the problems of international justice in practice. Joseph Kony of Uganda is still at large and his rebel movement active. The government of Sudan has no incentive to turn over either Kushayb or Harun. Indeed, it has appointed Harun Minister of Humanitarian Affairs, responsible for hearing human rights complaints from the victims of Darfur.

Unless the international community is prepared to act on the Court’s warrants, it cannot be effective. More needs to be done to establish responsibility for apprehending and arresting those charged.

There has been debate about whether the threat of prosecution will be an obstacle in negotiating settlements to violent situations. Leaders who fear indictment, it is argued, will be less likely to relinquish power or end conflicts. This is a valid concern. A 2006 peace accord between the Lord’s Resistance Army and the Ugandan government rejected the LRA’s demand for amnesty. This may explain why Joseph Kony did not appear to sign the treaty earlier this month. But peace and justice, I believe, complement and reinforce one another. Societies that have been torn apart by atrocities are unlikely to heal unless there is resolution for those who have been harmed and some penalty for the perpetrators.

There is evidence also that the Court has a deterrent effect. In late 2004, there was a wave of violence in Côte d'Ivoire, accompanied by radio broadcasts of hate speech reminiscent of the Rwandan genocide. Juan Mendez, the UN’s Special Adviser on the Prevention of Genocide, wrote to remind the Security Council that the ICC has jurisdiction over acts that may lead to crimes against humanity. His intervention was widely reported, and the message was heard in Côte d'Ivoire: the hate speech and threats subsided.

I should note that, while the ICC is the centerpiece of the system of international justice, there are other venues for ordinary people to seek redress when they have exhausted remedies in their own countries.

Regional human rights courts and commissions for Africa, Latin America, and Europe deal with cases that range from freedom of speech to discrimination to police brutality. Often, the courts’ decisions have the effect of compelling countries to recognize rights that exist under their own laws or in international treaties they have signed. At present, 80,000 such cases from 70 nations are pending. Perhaps the most significant contribution of the regional courts and the ICC will be strengthening national courts and bringing national laws up to international standards.

So far, MacArthur’s staff has been impressed with the early record of the ICC, but the Court is not without its critics. The U.S., as I have noted, is not party to the Rome Statute. This broke with America’s record of leading the way in international justice since the Nuremberg and Far East tribunals. The U.S. actively supported the tribunals for the former Yugoslavia, Rwanda, and Sierra Leone and assisted in drafting the Rome Statute. But fears that membership in the ICC would expose Americans to politically-motivated cases have persuaded two successive administrations not to ratify.

Opponents of the Court also object that the Rome Statute impinges on U.S. sovereignty, that it overrides the Constitutional due-process protections afforded to U.S. citizens, and that it would limit America’s ability to operate abroad – even in joint humanitarian operations.

So far, those fears have not materialized. And I do not believe they are likely to. ICC procedures have all the same due-process protections as U.S. courts, except that of trial by jury. And the Court has been rigorous in pursuing only those cases that are sufficiently grave and over which it clearly has jurisdiction. The Court has received almost 3,000 communications from 140 nations. The vast majority has been rejected outright, only four investigations have been opened by the Prosecutor, and all charges involving Americans have been dismissed.

The Court would certainly be stronger if the U.S. were a member.  American legal expertise would strengthen the early cases and shape the Court's future jurisprudence; American intelligence agencies could provide evidence to ensure successful prosecutions.

Many in the U.S. military have concerns about the ICC. In 2006, MacArthur sponsored the Stimson Center to survey and assess how professional officers, some from the military justice system, perceived the Court and its impact.

Stimson found a range of opinion – much of it positive, some strongly negative – but also that many officers knew little about the Court or the Rome Statute. The most common objections were that the Court “second-guessed” decisions taken in action that were thought to fall within the rules of combat, that American service personnel would be unfairly targeted when abroad, that ignorance of the provisions of the Rome Statute would lead to inadvertent infractions, and that field operations and military alliances would be hampered by further layers of legal restrictions. Others felt the Court would simply be ineffective, unable to bring criminals to justice.

Specific problems were cited: Would the U.S.’s deployment of cluster bombs and landmines, outlawed by the 140 countries party to the Ottawa Convention, give grounds for prosecution? Would decisions taken on faulty intelligence, such as the accidental bombing of the Chinese Embassy in Belgrade in 1999, make officers liable?

Officers with legal expertise pointed out gaps between U.S. domestic law and the Uniform Code of Military Justice and the Rome Statute, which they saw opening the possibility of prosecution for offences that were unclearly defined, or not addressed at all, in American legislation.

These are cogent objections, but I believe they are not insurmountable. Most of the acts prohibited by the Rome Statute are already illegal under U.S. military and civilian codes; where there are gaps or more clarity is needed, further legal work could harmonize the legislation and sharpen definitions. A simple program of education would give service personnel adequate working knowledge of the Statute. As there are few areas in which the Statute differs from existing U.S. codes, there would be little practical difference in field operations.

The specific objections may be met by noting that the use of certain weapons and specific operational decisions do not come under the remit of the Court, whose role is to deal with only the most egregious crimes. If the U.S. joined the Court, the principle of complementarity requires that its military personnel charged with misconduct would be subject to existing U.S. laws and procedures, which are robust and high-functioning.

It is worth noting that, between 2003 and 2006, the Prosecutor received almost 250 submissions related to the conflict in Iraq, the majority concerned with military operations by U.S. and allied troops. In his 2006 response, Prosecutor Luis Moreno Ocampo declined to pursue any of them further, ruling that the Court had no jurisdiction in most cases, that the individual instances did not rise to the level of gravity required, and that there were adequate national judicial systems in place to deal with the alleged offences.

Most of those who participated in the Stimson project supported the overall goals of the Court as being consistent with fundamental American values and the legal standards to which U.S. military personnel are already held. Some also saw the advantages for U.S. personnel of an international court that would strengthen the rule of law within countries that, in the past, would have ignored international standards altogether.

The ICC is arguably the most important new international institution since the founding of the United Nations itself. It is destined to have a considerable and lasting impact on how justice and human rights are defined and enforced. I urge you to acquaint yourselves with the Court, to investigate how it works, and to debate its future. How do you, as citizens, evaluate America’s relationship to the ICC? How should your training, and your conduct in operations, take account of the Court’s mission to protect the world’s most vulnerable people and bring perpetrators of atrocities to justice?

MacArthur will continue to educate the public about the Court, fund groups that further its work, and support an integrated system of international justice. We are convinced that America and its armed forces have nothing to fear from such a system, and much to offer to its success. And we are sure that lively and free-ranging discussion of the issues involved will help build a consensus that the world needs clear, universal, and humane standards of justice for all.

Thank you for your attention. I am interested to hear your opinions, and happy to answer your questions.

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