A Vade Mecum

in International Criminal Justice


 a presentation by

Prof. Dr. Türkkaya Ataöv

Book signing ceremony

Global Justice or Global Revenge? by Hans Köchler

East-West University, Chicago, Ill., USA, 5 June 2004

 When I initially read the preliminary remarks in Global Justice or Global Revenge by Professor Hans Köchler and became aware of the gist of that work on such a topical matter as international criminal justice, I concluded that his lines of reasoning ought to reach also readers other than English-speaking ones.  I am well-acquainted, for the last few decades, with the author's various works, plenty and multifarious, as well as his deeds, timely and inspiring, to assess that his choice of high-priority subjects that scare quite a few of other savants away, studious treatment that leaves no page unturned, and courageous assertions with an eye on a reformed world invariably present us with remarkable outcomes.

Judging this latest work, which I finished reading without delay, as a vade mecum in its field, I offered it for immediate translation into Turkish to the Istanbul publisher that had printed my last book.  He instantly agreed; the Turkish version, done by two young academics well-trained in international law and eventually to be edited by myself, will be ready by early 2005

If "the world's a stage," as Shakespeare had put it, and we merely players, Professor Köchler made several appropriate entrances and played very good parts.  In so many instances he was the first to try the new, and make it in time familiar.  He observed a world where fair was foul, and foul was fair.  His task was to ring out the false, and ring in the true.  To many of his contemporaries, he became a guide.

Although my emphasis here will be on Professor Köchler's recent treatise reviewing the international criminal regime at the crossroads, it is fair to remind that the author's various comprehensive analyses of broad subjects such as human rights, democracy, and world order have been scholarly contributions to the universality of libertarian principles, revitalization of reformed international law, and the reconstruction of an equitable alternative society for all.  The titles of the monographs are too many and their contents rich, vivid, and unfolding enough making any attempt for their summaries look not deservedly explanatory.  Especially those involving democracy in the post-Cold War era, the United Nations and the so-called New World Order, or the sanctions policies stand out especially now as invaluable prophesies.  His approach has been not only critical remarks or denunciation, but also corrections and showing the way to progress.

Professor Hans Köchler's recent massive compendium on universal jurisdiction, which reached the readers in Vienna and New York in early 2004 and whose first translation in Istanbul will  run off sometime next month, is another synthesis involving critical historical overview, coming down to the International Criminal Court (ICC) and to leads for the future.  Analyzing the legal and philosophical foundations of universal jurisdiction, the book elaborates on the measures of international law enforcement and scrutinizes the problems of legitimacy of international legal institutions within the context of power politics.

The author considers the Nürnberg and the Tokyo trials, which established nevertheless new standards of criminal responsibility, as examples of victors' justice, as much as the contemporary ad hoc international tribunals.  In all these cases, final sentences are passed only on the conduct of the defeated parties, not on the performances of victors that might also be deserving disapproval.  While a verdict on an actor that has fallen down may nevertheless be justified, the vanquisher installs the tribunal, presides over it, defines the terms of prosecution, and announces the judgement.

The author correctly underlines the value of the separation of powers as a prerequisite for an international rule of law.  A fully independent international court is, then, a sine qua non for global justice.  Putting the ICC in a different category, Professor Köchler rates its creation as a supranational authority exercising some functions otherwise reserved for states.  The Special Court for Sierra Leone, in the author's close study, meets the basic requirement of separating politics from legality.

The emergence of the ICC is fittingly described as genuine revolution in the system of modern international law.  With its adoption in mid-1998 and entry into force in mid-2002, a permanent judicial entity came into existence advancing universal jurisdiction beyond the former limits of ad hoc procedures on the national and international levels.  The author presents it as being more than an international institution, with an authority of its own.  If appraised within the framework of the Rome Statute, the ICC, with its composition and rules for the designation of its functionaries, strikes one as an independent institution outside the influence of executive power.  The Rome Statute enjoys jurisdiction over crimes committed on the territory of a State Party, excluding immunity even for the highest state officials and irrespective of the citizenship of the suspect(s).  This independence reflects a separation of powers on the international level.  The author legitimately asserts that no more ad hoc tribunals ought to be established by the U.N. Security Council.  He believes in the urgency of a supranational institution of law enforcement standing above the nation-state.  The exercise of universal jurisdiction should be the prerogative of a permanent international court.

It is this authority that motivated the United States, which had been one of the seven parties voting against the Rome Statute (17 July 1998) but signing on the very last day (31 December 2002), to reject the ICC's will on States Parties.  It is the prerogative of the ICC to exercise universal jurisdiction on a non-discriminatory, non-selective basis that galvanized the United States, where war has become the leading national industry, to actively oppose, not only the maturing, but also the mere existence of such a Court.  The U.S. Government, which railed to ratify the Rome Statute, started right away a campaign opposing it.  The rejection of the United States, which happens to be an unrivalled power with privileges in the Security Council, cannot be considered only as a gesture like a shrug of a shoulder.  It is a manifestation of great power boldness making the Court's universal jurisdiction practically meaningless.

The American Servicemembers' Protection Act of 2002 aims to enable the Armed Forces of the United States to pursue military operations in foreign lands without fear of criminal prosecution.  It also prohibits military assistance to countries that have ratified the Rome Statute, except close allies.  American personnel will participate in operations or missions abroad only if they will be exempted from prosecution in one way or another, including the conclusion of bilateral agreements of non-extradition guaranteeing their immunity.  The U.S. courts are also under the obligation to decline cooperation with the ICC.  Offering itself as a preacher of legality, the U.S. wants its adversaries punished but its own personnel to stay unaffected by the application of the same principles.

Further, a Security Council resolution (12 July 2002), promoted by the United States, effectively amends the Rome Statute by misconstruing one of its provisions (Art. 16), as if this executive organ of the United Nations is entitled to defer cases collectively and preventively, assuring in the process immunity to an entire category of people.  The article in question only implies that the Security Council can make nothing more than a request for deferral of a particular case after the latter has come up.

How can a worthy goal be attained if some of the most powerful states oppose it?  The Rome Statute does not refer to the use of nuclear arms.  The French "interpretive declaration" stating that the Rome Statute cannot regulate or prohibit the possible use of nuclear weapons reflects that country's interests in nuclear power.  The author's inquiry as to the real value of a permanent institution for universal jurisdiction if the most serious war crimes will go unpunished is well-founded.  The author prophetically warns that the unipolar international structure leads to a state of global anarchy.  The ICC may also fall a victim to power politics and the policy of double standards.

All those who uphold justice and abhor iniquity should be moved by this book.  All the author asks for is this: Fiat justitia (Let justice be done)!  I hope that the response to this scholarly work may one day be "... as thou urgest justice, be assured/ Thou shalt have justice, more than thou desir'st."  (Merchant of Venice, iv, i)