Introducing “Rule of Law Among Nations”

It is an immense honor to be here. But the honor is special indeed; because it was around this time seventy-four years ago—more precisely on April 13, 1945—that Robert H. Jackson (as an associate justice of the U.S. Supreme Court) addressed this same gathering, in a classic speech titled “Rule of Law Among Nations.”Footnote ¹

That speech is an essential primer: not only for international lawyers, but more so for policy decision makers of all nations that care for a better world for humanity.

It was a most forceful call for a global society in which all nations ought to subject themselves to the rule of international law, for the benefit of all.

And Jackson wasted no time in getting to the heart of the matter. In the opening lines, he promptly observed as follows:

Please download and read it. Every sentence is a gem. And I repeat its title for you “Rule of Law Among Nations.”

Mr. Justice Jackson was a giant among the first generation of international prosecutors. The second generation of international prosecutors—my own generation—came fifty years later, to serve at the ad hoc tribunals for the former Yugoslavia, Rwanda, and Sierra Leone. He has been a source of immeasurable inspiration for us. We deeply revered him.

But what is his legacy in relation to the International Criminal Court (ICC), where I now serve on the Bench?

Jackson's Legacy Relative to the ICC

In his essay titled “Robert H. Jackson and the Triumph of Justice at Nuremberg,”Footnote ² Henry T. King Jr. declared: “There would be no Nuremberg without Robert Jackson.”

I doubt that many would have the courage to quarrel with that view. After all, as of the time of adoption of the Rome Statute, Henry T. King Jr., Whitney R(obson) Harris, and Ben Ferencz were the last surviving Nuremberg prosecutors, whom many of us have been lucky to meet in our own generation.

Luckily, Mr. Ferencz is still with us. He is this year's recipient of the Anne Frank award. He turned 99 two weeks ago—on March 11, 2019—and is well on his way to 100.

It must of course be said that the validity of the “no Nuremberg without Robert Jackson” hypothesis rests on its own historical facts, more than it does on any appeal to the ad hominem authority of Henry T. King Jr.

But that necessarily engages the further query: Would there be the ICC without Robert Jackson?

Well, let us see.

Execution v. Criminal Trial of Axis Leaders

We may begin with a certain debate that divided the Allies as World War II was winding down. That debate concerned how to deal with the Axis leaders.

The options were either summary execution or criminal trial. As we know by now, many powerful voices—notably the leadership of His Majesty's government—favored summary execution.

Consider the message conveyed in the aide mémoire of April 23, 1945Footnote ³ that Sir Alexander Cadogan (then the permanent secretary to the UK Foreign Ministry) delivered to Judge Samuel Rosenman (the White House counsel). In it, His Majesty's government said as follows, among other things:

1. 1. H.M.G. assume that it is beyond question that Hitler and a number of arch-criminals associated with him (including Mussolini) must, so far as they fall into Allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war.

   …

2. 2. It being conceded that these leaders must suffer death, the question arises whether they should be tried by some form of tribunal claiming to exercise judicial functions, or whether the decision taken by the Allies should be reached and enforced without the machinery of a trial. H.M.G. thoroughly appreciate the arguments which have been advanced in favour of some form of preliminary trial. But H.M.G. are also deeply impressed with the dangers and difficulties of this course, and they wish to put before their principal Allies, in a connected form, the arguments which have led them to think that execution without trial is the preferable course.’

Within the U.S. government of the day, Henry King tells us, opinion was divided.

It was in those circumstances that Mr. Justice Jackson weighed in—with his speech of April 13, 1945.

Reviewing “Rule of Law Among Nations”

Jackson took no position on the propriety of summary execution, as a political option. According to him:

Jackson insisted, however, that if the path of criminal trial were to be chosen, then the trials must be genuinely conducted according to the due process of the rule of law. As he put it:

In the final analysis, Jackson insisted:

ICC Is Not There Merely to Convict

Dear friends, Robert Jackson was insistent that “the world yields no respect to courts that are organized merely to convict.”

Let us stay with that thought for a minute. In a manner of speaking, I regret to say this: Jackson's reproach resonates still amongst us. It does so because ICC judges continue to face pressure to convict accused persons, so that the world can see that the Court is “succeeding.”

This attitude comes even from amongst legal academics—of all people. Few things dismay more than to hear law teachers leading the chorus of those who would chant that the ICC “has failed” or “is failing” or “is in a crisis.” Invariably, the reasons for such views engage the complaint that ICC judges have acquitted some accused person at the end of a long trial or following an appeal.

But it is even beyond astonishing: if you considered that none of those who engage in these commentaries are able to claim greater familiarity with the evidence or the dynamics of the given case.

A challenge to that view often drags out a grudging acknowledgement of the importance of due process, along these lines: “Yes, of course, the court is not all about convictions. But there have been more acquittals at the ICC than convictions, in the important cases.”

But I must insist, ladies and gentlemen, that it remains an impoverished view of justice—even dangerous—if a positive view of the judicial process must depend on an expectation of convictions (either exclusively or in favorable comparison with acquittals), rather than a primary regard to the due process of the law.

I must urge a serious reconsideration of that attitude. For, it comes with a real risk of miscarriage of justice.

At the moment, I am able to say firmly and clearly that such a risk is minimal at the ICC. The judges now on the Court are not impressed by the prospect of unpopularity of the decisions they make. Still, we want to be sure that there is no possibility whatsoever that a judge (or even a prosecutor) may prove unduly anxious to avoid unkind criticisms of having “failed,” whenever there is a judgment of acquittal in a criminal case. It will fuel the concern that judges convict because of that anxiety, in the event of conviction.

And that is part of the lessons that we must take from Jackson's speech of April 13, 1945, when he said: “Courts try cases, but cases also try courts.” He returned to this theme on November 21, 1945, in his opening statement at the Nuremberg trial. There, he famously said this:

As we reflect on Jackson's injunction that “[w]e must summon such detachment and intellectual integrity to our task [so that an international criminal trial] will commend itself to posterity as fulfilling humanity's aspirations to do justice,” it is imperative that we keep firmly in mind that the Rome Statute only consecrates a determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” That determination insists only that no one should be beyond answering proper questions of accountability. The determination could never assume that an accused person is the perpetrator of the crime charged against him or her. It requires a fair trial to answer such questions of accountability.

Truman's Appointment of Jackson

Jackson's speech of April 13, 1945, we are bound to assume, did not go unnoticed at the White House. After all, the speech was delivered right here in Washington D.C. Two weeks later, on May 2, 1945, President Truman, as Henry King put it: “put the interests of the United States and what to do with the Nazi war criminals into Jackson's hands.”

However, that turn of events was not really surprising. It may be noted that Jackson's ASIL speech was delivered the day after President Franklin Roosevelt died and the day his Vice President Harry Truman became president.

There is ample evidence that FDR (a former practicing lawyer) had sympathy for the trial of alleged Axis war criminals.

For instance, in his Fireside Chat No. 23 of October 12, 1942,Footnote ⁴ President Roosevelt was clear that “the ring leaders” of the Axis powers “and their brutal henchmen must be named, and apprehended, and tried in accordance with the judicial processes of criminal law.” That was a reiteration of the same message which he had made clear in his press statement of October 7, 1942.

It would come as no surprise that immediately upon succeeding President Roosevelt, his former vice president—now President Truman—would throw his weight fully behind the idea of trial of the alleged Axis war criminals.

In appointing one of the top-most judges in the country and in the world, as the U.S. representative and chief counsel to Nuremberg, one central message that Truman communicated was how seriously the U.S. government took what needed to be done in Nuremberg.

Wearing that armor of prestige and respect, Jackson attended the London Conference (from June 26 to August 2, 1945), as the U.S. representative. Having successfully held off the clamor for summary execution, a proper judicial mechanism needed to be crafted for the trials. That came in the manner of the text of the Charter of the Nuremberg Tribunal.

And Jackson was the champion of that Charter; thus, partly explaining the folklore that “[t]here would be no Nuremberg without Robert Jackson.”

Jackson on Immunity

Article 27 of the Rome Statute abjures immunity—even for heads of state. For reasons that Professor Sean D. Murphy and some of you may know, I will not enter into any discussion of that subject on this occasion.

However, I can say that the original precedent for Article 27 of the Rome Statute was Article 7 of the Nuremberg Charter. And that provision was dear to Robert Jackson.

In explaining the place of the anti-immunity norm in the Nuremberg Charter, Justice Jackson said as follows, among other things, in a report he made to President Truman on June 7, 1945:Footnote ⁵ “We do not accept the paradox that legal responsibility should be the least where power is the greatest.”

He returned to the theme in his opening statement at the Nuremberg trial five months later:

Those must rank amongst the most profound rule of law maxims of all time.

What is so remarkable about Jackson's robust promotion of the anti-immunity norm, in 1945, is that twenty-six short years earlier—in 1919—Robert Lansing (Woodrow Wilson's secretary of state and a former legal advisor to the State Department) had relied on The Schooner Exchange judgment to oppose the anti-immunity idea—just as robustly during the negotiation of the Treaty of Versailles. (William Schabas correctly captured the story in his new book, The Trial of the Kaiser—a most fascinating read.)

Largely due to Jackson and his Nuremberg legacy, we now see that norm clearly codified in the Rome Statute, which, above all is a continuation of the very Nuremberg idea that multilateral judicial mechanisms of international law must be used to ask questions of accountability, when people commit atrocity crimes.

The ICC and Nuremberg Connection

Against that background, it is not merely a pleasing platitude to say that the ICC owes its own existence to what Jackson once described of the Nuremberg Tribunal as an “experiment” in international law.

There are, indeed, historical facts that bear out the thesis.

We may begin with the UN General Assembly (UNGA) Resolution 95(I) of December 11, 1946. In it, the UNGA “affirm[ed] the principles of international law recognised by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal.”

However, Resolution 95 (I) went further to direct the “Committee on the Codification of International Law” (as the International Law Commission was then called) to formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal. And the Codification Committee was to do so “in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code.”

It is common knowledge that Resolution 95 (I) was the brainchild of the U.S. government.

A year later—specifically on November 21, 1947—the UNGA adopted Resolution 177 (II), directing the International Law Commission (ILC) to “[p]repare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles [of international law recognised in the Charter of the Nuremberg Tribunal and in the judgment of that Tribunal].”

The following year—specifically on December 9, 1948—the GA adopted Resolution 260 B (III), directing the ILC to study the desirability and possibility of creating an international criminal court.

UNGA Resolution 260 B (III) was adopted at the same time as Resolution 260 A (III) pursuant to which the Convention against Genocide was adopted—another salutary byproduct of the Nuremberg-era that prided the rule of international law.

UNGA Resolution 260 B (III) really was the marching order that commenced the work done by the ILC through the years. It all culminated in the 1994 ILC draft Statute for an International Criminal Court. That, as we all know, was the working draft used in the negotiations that directly resulted in what we know today as the Rome Statute.

We thus see that direct linkage between Nuremberg and the ICC. It is thus correct to insist that without Mr. Justice Robert H. Jackson of the U.S. Supreme Court, there would be no ICC.

Subsequent American Role

For now, I should observe that in the period after Nuremberg, American jurists—men and women—have (just as Robert Jackson had done) also played their own prominent parts in the project of criminal justice according to international law—when the delicate mosaic of humanity was once again ripped in more recent times. They helped to create—and operate—other international criminal tribunals: such as the tribunals for Rwanda, the former Yugoslavia, and Sierra Leone.

Amongst them were Judge Gabrielle Kirk-MacDonald, Judge Patricia Wald (who passed away this year), and Judge Ted Meron—all of them stalwart jurists who helped to shape the jurisprudence of international criminal law, from the bench of the International Criminal Tribunal for the former Yugoslavia (ICTY). Judge MacDonald and Judge Meron also served as presidents of the ICTY.

The International Criminal Tribunal for Rwanda (ICTR) also saw a number of Americans serve as senior prosecutors and defense counsel.

At the Special Court for Sierra Leone, Mr. David Crane, Mr. Stephen Rapp, and Ms. Brenda Hollis served admirably as chief prosecutors at different stages in the life of that international court. And I am proud to say that I served under Mr. Rapp and Ms. Hollis as a senior prosecutor at the Special Court for Sierra Leone.

The ICC numbers amongst its staff Americans who have served—and still serve—as prosecution counsel and other legal staff. To look at it differently, notwithstanding that the United States is not a state party and does not contribute to the budget of the Court, the Court has continued to give employment to American citizens.

The U.S. Role at the ICC PrepCom

But, beyond operational personnel, the U.S. delegation did play a leading role, as indicated earlier, in the negotiation of the text of the Rome Statute itself, before its adoption.

It may be enough to cite here, by way of example, the Statement of the U.S. delegation dated March 23, 1998,Footnote ⁶ just three months ahead of the Rome Conference. Allow me to quote parts of it:

• • The United States believes that crimes against humanity must be deterred in times of peace as well as in times of war and that the ICC Statute should reflect this principle….

• • The United States strongly believes that serious violations of the elementary customary norms reflected in common Article 3 [of the Geneva Conventions] should be the centerpiece of the ICC's subject matter jurisdiction with regard to non-international armed conflicts….

• • It is good international law, and good policy, to make serious violations of at least some fundamental rules pertaining to the conduct of hostilities in non-international armed conflicts a part of the ICC's jurisdiction ….

• • The United States is eager to work with other delegations to build strong consensus on these matters….

Those were impassioned views from America, in the normative design of the jurisdiction of the ICC. And not only were America's exhortations in these regards well-placed, they were evidently well-received by other states in what we now see of the Rome Statute.

All that and more would show that rather than obstruct or disrupt the negotiation of the Rome Statute, the U.S. delegation played roles that were instrumentally constructive.

The ICC's Complementarity Doctrine

It is a matter of much regret that a strident level of recrimination is now being directed against the ICC, on the basis of a worry that the Court usurps national sovereignty.

I am bound to insist with respect that the worry is necessarily misplaced. The nature of the ICC's jurisdiction does the very opposite of usurpation of national sovereignty. It actually prides and underscores national sovereignty.

Under the Rome Statute, the primary jurisdiction belongs to the state with the closest sovereign connection to the locus of the crime or the alleged suspect. It is only when that state proves unable or unwilling to do justice genuinely in the exercise of that primary jurisdiction that the ICC is legally entitled to intervene.

The essence of the doctrine of complementarity—as outlined above—is that justice may not suffer the fate of the neglected orphan in the province of national sovereignty.

In practical terms, the doctrine of complementarity means that states, who are able, must show leadership in doing justice—precisely because they can. For those states, the ICC's complementary jurisdiction will remain a mirror of conscience, in the event of government's reluctance or unwillingness to do justice.

That said, the preponderance of experience—from the chronicles of atrocity crimes—shows that the ICC's complementary jurisdiction serves the greater purpose at the instance of states whose national systems are ill-equipped to administer justice for the purposes of accountability and reparation, according to the generally accepted international standards. In those situations, the ICC remains a veritable insurance policy against impunity.

We may examine some examples. In August 2010, the Office of the High Commissioner for Human Rights published its Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed Within the Territory of the Democratic Republic of the Congo Between March 1993 and June 2003.

As these things often are, the report is a depressing catalogue of sundry violations that provoke questions of genocide, crimes against humanity, and war crimes, allegedly committed within those ten years—with impunity.

The failings and inadequacies of the national judicial system were centrally implicated in that reign of impunity; in the terms of “significant structural and chronic shortcomings in all parts of the Congolese justice system.”Footnote ⁷

Rwanda is another striking example. From April 8–17, 1993—mark the year 1993—the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, visited Rwanda on a mission. He published his report on August 11, 1993.Footnote ⁸ He reported that: “Massacres of civilian populations have been perpetrated either by the Rwandese security forces or by certain sectors of the population.” He raised the question whether these massacres could qualify as genocide. He ultimately answered the question in the affirmative—because the victims were predominantly Tutsis, who had been killed simply because of their ethnicity. He noted that the killers had enjoyed impunity. One year later, on April 6, 1994, the genocide against Tutsis broke out, in unequivocal terms.

However, what was particularly interesting for us is that, at all material times, the judicial system of Rwanda was squarely implicated in this reign of impunity. As the special rapporteur put it in his August 1993 report: “It is the serious failings of this system that have made possible the impunity enjoyed by the persons responsible for the killings.”

The 1994 Rwandan Genocide left at least 800,000 dead (among them judges and lawyers)—leaving alive less than three hundred legal professionals (i.e., judges and lawyers). That is to say, a judicial system which, at its best, was found incapable of ensuring against impunity, was left utterly broken altogether by the genocide. It needed the international community to step in and do justice—through an international criminal tribunal.

For a more recent example, we may note that Kurdish authorities in northeastern Syria have called for international assistance to administer justice, saying they are unable to cope alone with former Daesh (the so-called Islamic State) fighters in their detention. Just this week, the authorities there made a public plea for the establishment of an international criminal court that will try the alleged former jihadists in accordance with international standards.

These stories of serious shortcomings in national judicial systems would be very much the same in many places with chronic histories of human rights violations, which eventually lead to mass atrocities.

The moral of the story is that it is very easy to do atrocity; but doing justice is much, much harder.

No one Good Samaritan country is able alone to help the world in this regard. Limitation of means is not the only obstacle to good intentions, even for the most able country. Limitation also comes in the manner of the usual proscription of national exercise of extraterritorial jurisdiction.

The Joint Effort of Nations

It is here that the ever so gentle urge of Eleanor Roosevelt—the “Mother of Human Rights”—continues to carry resonance. As she said:

And, it is in that context of joining other nations under a joint flag to accomplish something good for the world’” that we should invite back Robert H. Jackson, as he spoke to the zero-risk option. As he put it:

To that eloquent wisdom, I am sure that Jackson would allow me to add that when international law operates to make our world a better place for humanity in the long run, it would have worked to “our national advantage”—though it may not seem like it in the short run.

A Call on America to Join the ICC

If you go back far enough, there would be episodes of extreme parochialism that have blotted the history books of many a nation represented in this room—including my own.

But there is no escaping the fact that America has, more than most, done much, in our world's recent history, to further the cause of international criminal justice.

It did so at Nuremberg, it did so for the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia.

And when nations including America were assembling to negotiate the ICC's founding instrument known as the Rome Statute, joined other nations to create the ICC, they were primarily moved by the concern that during the centuries of our generation—as with past generations— “millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.” And, the negotiators of the text of the Rome Statute, including the United States, recognized “that such grave crimes threaten the peace, security and well-being of the world.” Those sentiments are branded into the preamble to the Rome Statute.

If one contemplated the state of the world today, one confronts the stark reality that those concerns are as urgent now as they were when the ICC was created twenty years ago.

Ladies and gentlemen, it is time for America to take her leading place amongst nations at the table of the Rome Statute.

The past, the present, and the future victims of genocide, crimes against humanity, and war crimes need her to do so.

I call upon the American Society of International Law—and everyone else in this room—to encourage her to do so, without further delay.

Thank you.