At a Nuclear Age Peace Foundation Symposium entitled International Law and the Quest for Security held at the University of California at Santa Barbara
Thank you, Dr. Krieger, for this exposition on the basis on which the International Criminal Court came into being. You had, I understand, a very enlightening discussion on aspects of International Law, International Criminal Law specifically, this morning and that, together with what Dr Krieger has said, will form a very informative, useful background against which I will speak.
I will deal more with the historical aspect of the attempts at unified action by the International Community to establish rules of behavior and in saying so, I recall the words of a notorious Nazi criminal. He was Hitler’s most gifted technician who did more than anyone else to assist Hitler in his ravages and destruction of different parts of Europe and other parts of the world. He was caught along with others, both military and business (people). He was tried by the Tribunal of Nuremberg, as it has come to be known, convicted and sentenced to twenty years imprisonment in Spandau. It was after his conviction, when reality dawned upon him, Albert Speer bared his soul to the tribunal and said, among other things, that “It is necessary that rules must be devised whereby mankind can learn to live with one another because, with the advances that would take place in science and technology, a new war of this kind will result in the destruction of civilization.”
And that is what, fundamentally, an International Criminal Court is about: the creation of rules by the International Community, establishing standards of behaviour where anyone will be held accountable for violation of such standards where the most egregious offences are involved.
With the tremendous advances that Albert Speer foresaw in science and technology, it is clear that what is before us now, and I speak particularly to the youth in this audience, what is evolving before our very eyes and in our very presence, is a new civilization which science and technology have developed around us, the beginnings of a new civilization in which we humans are involved whether we like it or not.
How are we going to make use of this tremendous advance in science and technology is a matter not so much for the scientists like Albert Speer, it is a matter for all of us. For the consequences of abuse of this new power that is being placed in the hands of some would have enormous results for all. So what touches all, as was said decades ago in a different context, must be approved by all. And this is how you are brought into the picture to be involved in the decision: shall we establish rules which will apply to all, rich and poor, high and low, powerful and powerless? Shall we establish rules whereby we all can abide and learn to live with one another? Or shall we allow this enormous power that is being placed in the hands of some by science and technology to run away and act in accordance with its own rules?
I give an illustration of centuries ago: A country in the region of Alsace in Europe where a ruler by the name of Peter Von Hagen Bach got out of control and he wreaked havoc among the villagers of the region of Alsace and there were no rules and there was no established power to bring him to account. So what did they do? They made use of their numbers. That was the power that they had, numbers. They gathered together in their numbers from everywhere they could collect. They captured him. They brought him to the market place, and they executed him. After that, there were efforts towards creating such rules of behaviour. There were the Geneva Conventions of 1864 and 1865. And then, after the First World War, the victims of the war got together. There was a proposal to establish a permanent court to try Kaiser Wilhelm. That proposal, however, was rejected in favor of an ad hoc tribunal. But before the tribunal could be established, Kaiser Wilhelm escaped to a neutral country, The Netherlands. In those days you could not take action against countries. You could not bring a country to court for harboring a man who had committed the most egregious crimes against humanity. And if you managed to bring the country to court and convicted the country, you could not send the country to jail. And so the people were powerless because countries stood in the way to defend their sovereignty.
So it was necessary to establish rules and this was done for the first time in the Tribunal of Nuremberg where one of the principles established was: Since it is individuals who commit crimes, however powerful they may be—they may be kings, they may be presidents, they may be generals, they may be field marshals—they are individuals. Therefore you do not hold their countries to account, you hold them to account.
Individuals must be brought to account. And there must be no impunity. No one must escape. So, even if they belong to a distant country, they can still be tried, if necessary, in absentia and convicted and sentence imposed and countries may be required to impose those sentences. Wherever those individuals went they would be subject to the charges and the sentences that were imposed. So they could be forever in search of a home because wherever they went, they would be subject to the sentence of the court and imprisoned.
That is the importance of a permanent Court. One of the great principles that would apply in the case of a permanent Court is that it is no respecter of persons. Whoever you may be, you may be President, you may be Secretary for Foreign Affairs, you may be Secretary of Defence, you may be Commander in Chief, you will still be subject to trial and sentencing. So humans wherever you may be would then be able to have a sense of security that if anyone, however powerful that person may be, invades your security or destroys your humanity or commits any of these crimes against humanity, any of these egregious crimes, the permanent Court is there for the purpose of trial, conviction and sentencing.
Nuremberg however, was a tribunal, an ad hoc tribunal formed by the victors of the First World War to try the vanquished, and there were many persons who felt it should have been a permanent court. I was a student at that time in the University of Oxford, engaging in debates in the Students’ Union and in one debate on the United Nations, the actual subject of the debate was “The United Nations has failed”, because it was clear that the United Nations had really no power to do anything to anyone; had no power of implementation of action, sentencing and imprisonment of persons.
And in that debate also was another young man and he was from the Boston area- the University of Boston. He had a Doctorate in History and International Law and was reading for another Doctorate in International Law. His subject was the Nuremberg Trials in International Law. We had extensive discussions and after that debate, we were both recognized as the two best debaters in the debate and became very friendly after that. We had numerous discussions on International Affairs and felt that the way forward, at a time subsequent to the Second World War, when there were doubts about the future of the world, having regard to the experiences of the Nazis, (we were discussing in what direction the world should go, as young people and I hope that young people are engaging in these discussions these days) – we came to the conclusion that we should seek to establish that the world should go in the direction of universal human rights. And since there were no established institutions for the enforcement of those rights, we felt that in the most serious cases, an institution should be developed that has enforcement powers and therefore Nuremberg was the way to go.
But Nuremberg was ad hoc; it was for the specific purpose and when it was done, it was finished. But what we felt was that there should be a permanent court, a court establishing that everybody should know it is there and if these crimes are committed they could be brought to account to that court and that would be a means of bringing some influence on persons in refraining, some deterrent influence, on persons against the commission of those crimes.
If, for example, we had such a permanent court they would not have had to establish a tribunal in Bosnia Herzegovina, in Rwanda, and so on and maybe those crimes not have been committed because the persons who are now before those tribunals would have known that they could be brought to account for the commission of those crimes and the people around them would have known that those persons could be brought to account. So this could be a tremendous deterrent – if one is to have a permanent court, rather than have to resort to tribunals – to doing something after the act has been done rather than having provision so that action could be taken.
Everyone should know that action could be taken. This would be a tremendous deterrent influence. And since the rules would apply to all, there would be no impunity for persons who feel, because of their positions or some special situation that; they could commit crimes and escape. So this is the position that is placed before us in building this new civilization. Whether we like it or not, the civilization is being built for us.
Look at the tremendous developments taking place in communications. As I speak, I could be heard in Japan or in China on in India or in any of these places, even as I speak. That is the importance of the communications revolution where every individual could use the internet and express his opinion and that opinion could be known throughout the world. An individual is no longer isolated, which is a tremendous revolution that has developed around us and the question is, shall we or shall we not establish rules for the most egregious offences, for the worst forms of behaviour, that they could be dealt with in a manner provided for in law and according to justice, that is to say, all rules of justice should prevail. They should be heard, they should have the opportunity to be heard, to put up their defence against charges against them. For example, they should be tried, and tried in accordance with the principles of a court of law and no harsh penalties be imposed because of the conviction if they are guilty. They would have to be proven guilty in a court of law where all the principles in the civilized world that apply will be applied and no one would have punishments imposed because of his or her political conviction or because of their religious convictions.
Those matters will not apply in an International Court. The Statute of the court makes that kind of provision. It gives protection. Whereas it provides for penalties which would apply in all cases, it also makes provision for protection of individuals so that they could not be subject to arbitrary rules and penalties according to the whims and fancies of those who possess the powers.
So this innovation of a permanent court has been described as the second most important development in International Law since the United Nations Charter.
It is true that I moved the motion in the United Nations in 1989, but as I said last night, there is a great deal of substance in the utterance of the most distinguished user of the English language, the most distinguished poet and playwright who made one of his characters say, “There is a divinity that shapes our ends rough hew them how we will.” And as I stand here, I can say there is a divinity that shaped my life. That is the only explanation for the fact that I stand here before you this afternoon and I speak. For it easily could have been otherwise; that I received the award that I received last night. For in the year 1990 there was a revolt in my country. I was the Prime Minister. A fanatical group of Muslims decided that they wanted to take over the government. They invaded the Parliament in which I sat and in which other members of Parliament, Ministers of Government were. They held us, they bound us. I was bound hand and foot and as I lay bleeding on the floor of the Parliament, they called on me to instruct the troops to withdraw from their assault and to lay down their arms, that is to say the Government troops, and tell them that the Government had fallen. And as they put the microphone to my mouth to carry out their instructions, I shouted in the microphone: “These are murderers and torturers. Attack with full force.” And this of course astonished my assailants. They were in shock; they withdrew; they pulled back. But one of them who was some distance away fired the gun. It caught me in the knee. I could have been lame for life. The doctor said half an inch in a different way and the main artery would have been severed and in minutes I would have gone. This was 1990. I made reference to the event last night and this morning, I awoke to hear my wife who is somewhat ill saying, “1990, 1990, 1990.” That is all she was saying.
That reinforces what I said. How did I escape? There is a divinity that enabled those assailants, those villains to be caught and captured and tried. So when I stood in the United Nations and moved that motion, with all the background that I had and all the preparation, I was able to do it because I was then Prime Minister of Trinidad and Tobago. I had great assistance from some of the most experienced and learned experts in the world in the field of International Law, including Dr Woetzel himself.
I moved the motion. I brought them together and had the motion prepared and I moved the motion. How different it could have been. I happened to be Prime Minister. I was in the place to do it—in the United Nations. I was in the position to do it. I was Prime Minister and I was able to incorporate the expertise and experience of the most learned in the world. I was able to do it and that is why I am regarded as the person who is the virtual author, the father, as it is put, of the International Criminal Court. It so easily could have been someone else, but nobody else was in the position to do it.
So University students, I emphasise this in order to let you understand how history is made and unless historians delve into the factors that produced events, the events describing the events themselves are of little use. True knowledge has to be based on understanding and evaluation of events, surrounding events, events that have led to the conclusion that is arrived at. So one has to be careful with one’s history and with what historians say. And it is of extreme importance that one should understand the meaning of an International Criminal Court and the nature of the opposition that comes for the International Criminal Court. It is important to delve into the origin of that opposition, for unless one understands the basis of that opposition and the manner in which that opposition has evolved and the situation that has led to that opposition, one would not understand and one would not be prepared for the necessary campaign to deal with any campaign of opposition. And as the people of Alsace dealt with Peter Von Hagen Bach by a combination of numbers—their power came from numbers, they did not have the influence that he had, they brought together numbers—in the same way, dealing with any campaign against the International Criminal Court, a necessary campaign must be a mobilization of the numbers in the world. The numbers in the world must speak and you have the internet. You have the communications revolution now which makes every individual a potent actor.
So I am happy to speak to you in this University of California in Santa Barbara. It is the first time I have had the opportunity to do so and it is an occasion I can assure you I shall never forget, for the attentiveness with which you have listened. An occasion where clearly there has been a response which I understand. For all these reasons, I shall never forget this occasion and I wish you progress and prosperity in your lives as students and hope that you will be a decisive influence in anything that involves the benefit of humanity and there is no doubt about it, the International Criminal Court is a matter for the benefit of all humanity.
I thank you.