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Former US Nuremberg Prosecutor Fights For the International Criminal Court

Five years ago a treaty was signed to create the first permanent world court designed to prosecute individuals charged with committing the worst crimes against humanity -- including genocide. The International Criminal Court now has 18 international judges and an Argentinean prosecutor in place at The Hague ready to begin dispensing justice. In today’s Focus a look at the court's history, future and why some countries, including the United States, are opposed to it.

In September 1947, prosecutor Benjamin Ferencz stood before a tribunal in Nuremberg, Germany to make the case against 22 Nazis accused of massacring more than a million innocent people. “We shall establish beyond the realm of doubt that the slaughter committed by these defendants was dictated not by military necessity but that supreme perversion of thought, the Nazi theory of the master race. The case we make is a plea of humanity to law.”

Just three years before, Mr. Ferencz had fought as a US soldier to liberate Europe from the Nazis. He was one of the first to enter the Nazi death camps. “I've dug up bodies with my own hands in trying to put together a dossier for war crimes prosecutions,” says Mr. Ferenez. “It was apparent to me that unless we develop some system of international law to bring the perpetrators of such crime to justice everybody will be imperiled, and wars will continue with increasing veracity. Not believing that was a good thing and having experienced the horrors myself, I have dedicated most of my life to try to create this peaceful world I have dreamt about.”

Today, at age 83, Mr. Ferencz is still working for the ideals of the Nuremberg court, this time through the first-ever permanent International Criminal Court, or ICC. “The International Criminal Court is designed to protect the world against crimes which universally threaten all of humankind,” he says “and that is what we tried to do at Nuremberg and that's what the United States stood for and I believe that is what a majority of American people stand for today.”

About 90 countries including many US allies like Canada, the EU nations, Brazil and South Korea -- have signed on to the court. But not all nations are supporting the ICC. Many of the world's dictatorships have shunned it. Even a few democratic states, including Israel, India, and the United States, have expressed reservations. The Bush administration goes one step farther by strongly opposing the court. It is determined to exempt US citizens from its prosecution.

Ruth Wedgewood, an international law professor at Johns Hopkins University in Washington, says “if the Americans have a quarter of a million troops deployed around the world that contribute to security on behave of all the neighbors in the region, they are uniquely vulnerable to the court's jurisdiction.”

She is concerned that the court could be used to mount politically motivated charges against US leaders or soldiers – a view shared by the White House. “Some people see the International Criminal Court as this device with which to counter American power. That is, for example, if the French can't win in the Security Council, they will then take the case to the ICC and charge the United States with aggression or violation of the rules of battlefield law.”

Ms. Wedgewood says the US administration has a major problem with the fact the ICC can even prosecute individuals from countries that haven't ratified the treaty establishing the court. She says this puts US peacekeepers at risk of ICC prosecution when they are in other nations.

But Ben Ferencz says this is an overblown and misguided fear. As a former combat soldier, he says he wouldn't support anything to jeopardize US troops anywhere in the world. “ The International Criminal Court would have no jurisdiction whatsoever over all of these US troops unless the leaders were responsible for committing genocide or crimes against humanity, which means crimes of such magnitude as to be of concern to the international community as a whole. American troops nowhere in the world do that. The court is for people like Saddam Hussein…like Adolf Hitler…like Stalin, people who direct these kind of crimes.”

Furthermore, Mr. Ferencz says the diversity of the 18 leading judges many are from leading US allies including Canada and Great Britain assures the court's impartiality.

Maggie Gardner, Program Manager with the World Federalist Association, an NGO actively supporting the ICC, agrees.

She says the court is designed to prosecute only when a country is without the means to bring criminals to justice on its own. “This court is directed towards countries that, for instance, have just emerged from conflict, so there isn't actually the physical presence of a court system capable of trying someone,” she says. “It is there for country's whose judiciary is threatened or not independent. It is there for countries that are actively shielding individuals for whom there is a massive amount of evidence showing that they have ordered a genocide or ethnic cleansing. The court is not there for countries with functioning, independent judiciaries. The United States and most US allies have nothing to fear from this court. The court will never affect them because the court will always defer to them to take care of these cases on their own.”

Professor Wedgewood says she has other areas of concern. “But the problem is that people may choose to indict as aggressive acts what we or others think are genuine acts of humanitarian intervention or defense against terrorism.”

The Bush administration insists the risks for US citizens are too great. In a move that angered many countries, the US government has cut off significant military aid to dozens of allies who refuse to support American immunity from the court.

This puts countries like Croatia in an awkward situation, says its ambassador to the United States, Ivan Grdesic. For the last 5 years, he says Croatia has been sending its own alleged war criminals to the International Criminal Tribunal for the former Yugoslavia at The Hague. “Excusing other nations from the same obligations would be a double standard. Many Croatians think it is unfair that we are sending Croatian generals but that others from the United States want to be excused for possible alleged war crimes. This is not well received in the country and, if immunity is given to Americans, this would undermine the Croatian government position at The Hague.” Ben Ferencz says the present fear of terrorism has driven the Bush administration to reject the court. But the United States and others can still join the International Criminal Court at some later date. “If it is shown that the court is functioning fairly and well and there is a change in the administration in Washington, the United States will come on board.”

With all staff, judges and the prosecutor in place, the next step of the ICC is reviewing possible cases. Referrals come mostly from the 90 member states and the UN Security Council.

Sam Muller is the ICC Deputy Director of Common Services - part of the support staff to ensure smooth functioning of the court. He says the initial cases will prove the credibility and strength of the ICC. “For the first time in history, this court creates, beyond any doubt individual responsibility if you have committed those acts of crimes against humanity you can no longer hide behind a state or government. And it has done so on the international level with 90 states ratifying the treaty. There are 139 states that have actually signed the Rome statute that created the ICC.”

The eyes of the world community will be on the historic International Criminal Court as it begins to work on its first cases by the end of the year.