The thematic of the Erasmus Prize 2009 was the International prosecution and judgment of war crimes and crimes against humanity. The prize was shared between two eminent jurists: Antonio Cassese and Benjamin Ferencz. Together these men – the prosecutor and the judge – form the embodiment of the endeavour to punish, prevent and eliminate international war crimes.
Antonio Cassese, born in 1937, was professor of international law at the University of Florence. He has made both scholarly and practical contributions to this field of study. As first president (1993) of the International Criminal Tribunal for the former Yugoslavia in The Hague he has been of great significance for the functioning of this Tribunal and for the establishment of the authority of other tribunals. Cassese headed the Appeals Chamber of the International Criminal Tribunal for Rwanda, the Commission of Inquiry on Darfur. In 2009 he was appointed President of the Special Tribunal for Lebanon. In his role as a judge, teacher, scholar and critic, Mr Cassese has motivated a large number of students and colleagues, and has played a crucial role in the recognition of international tribunals. Antonio Cassese died in 2011.
delivered by His Royal Highness the Prince of Orange
Ladies and gentlemen,
Is a peaceful community of states an attainable goal? Can we allow ourselves to dream of a Utopia?
Many will agree that it is desirable to strive for a less violent world, but few believe this ideal can be achieved in our lifetime. The concept of a peaceful community of nations was in fact suggested as long ago as 1795, when Immanuel Kant, in his Perpetual Peace: a Philosophical Sketch, outlined the idea of a league of nations that would control conflict and promote peace between states. Kant argues for the establishment of a peaceful world community in the hope that each state would respect its citizens and welcome foreign visitors as fellow rational beings. A union of free states would promote a peaceful society worldwide, overseen by the international community.
The development of international law resulted in the establishment of the League of Nations by the Treaty of Versailles in 1919. The League’s main purpose was to avoid any future world wars, but ultimately it proved incapable of preventing aggression by the Axis powers in the 1930s. At the end of the Second World War the United Nations replaced the League, inheriting a number of its agencies, and the dream was renewed. In the preamble to its Charter, the ‘peoples of the United Nations’ expressed their determination to combine their efforts to ‘maintain international peace and security’ and ‘to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest’.
The emerging international legal order was increasingly based on the notion that perpetrators of heinous crimes should not go unpunished and that there can be no peace without justice. Indeed, the Tokyo and Nuremberg Tribunals after World War II were milestones in the development of international law, focusing on individual criminal responsibility, rather than on state responsibility. Both the Nuremberg and the Tokyo Tribunals applied and developed the concept of international criminal responsibility for crimes under international law, such as war crimes and crimes against humanity. The concept of individual criminal responsibility was taken further in international treaties such as the Geneva Conventions, the Genocide Convention and the UN Convention against Torture.
But after Nuremberg and Tokyo, it took more than forty years and the end of the Cold War for the international prosecution of the most serious international crimes to resume. Starting in the 1990s, several international, or partially international, courts and tribunals were set up by the United Nations or with UN support, such as the Yugoslavia and Rwanda tribunals, and the tribunals for ierra Leone, Lebanon and Cambodia. These tribunals were established to try international crimes in connection with specific situations. By contrast, the International Criminal Court, founded with the signing of the Rome Statute in 1998, which opened its doors in The Hague in July 2002, is the world’s first permanent court. It has potentially universal jurisdiction to try the most serious crimes of concern to the international community.
The importance of international tribunals is evident in the light of the international crimes committed time and again all over the world. But the daily reality of the international courts and tribunals is at times challenging. For instance, to implement their mandates they depend on the cooperation of States.
As peace and justice go hand in hand, the international community should step up its efforts, underscoring its commitment to international justice as a complement to national justice. The international criminal courts and tribunals should be able to function effectively as independent courts, dispensing justice in the interests of peace.
Ladies and gentlemen, the theme of the 2009 Erasmus Prize is 'Prosecuting and Judging International War Crimes and Crimes against Humanity'. It comes at a time when the Yugoslavia and Rwanda tribunals are moving towards completing their work, when several other courts and tribunals are dispensing international criminal justice and the world community is, more than ever, faced with the need to work together to solve global problems. In this context, we thought it was the right time to focus on the rule of law and the importance of international legal structures.
The prize has been awarded to two eminent legal experts, Antonio Cassese and Benjamin Ferencz. The Praemium Erasmianum Foundation recognises that this year’s two Erasmus Prize recipients are both key figures in the emerging system of universal criminal justice. And both have greatly contributed to it.
Mr Ferencz’s wartime experience has determined his life and the difficult goals he set himself. At the Einsatzgruppen trial at Nuremberg he was chief prosecutor, and brought to justice twenty-two Nazis who had perpetrated war crimes. Afterwards, he directed restitution programmes and assisted Nazi victims seeking compensation for their suffering and losses. He worked as counsel in negotiating reparations between West Germany, Israel and Jewish organisations. The most important part of his mission today is trying to prevent war. He sees war as the greatest evil of all, and has campaigned incessantly to eliminate it. One of his campaigns is to make aggression a crime within the meaning of the statute of the new International Criminal Court. Mr Ferencz has fought all his life to end impunity for the architects and perpetrators of large-scale atrocities and stressed the importance of individual responsibility. His long career spans the work done at Nuremberg and today’s efforts to develop a working, global system of international criminal law. That new institutions, including the International Criminal Court, have come into being is in no small part thanks to his efforts.
Antonio Cassese has played a vital role in developing relevant legal concepts and he helped to create the post-Nuremberg and Tokyo courts to administer international justice. He was a driving force behind the creation of the International Criminal Tribunal for the former Yugoslavia and, as its first President, played a key role in establishing its authority.
During his career Antonio Cassese has performed many roles: he has been a judge on the bench, he led the UN Commission of Inquiry on Darfur, and he has worked as a scholar, teacher, editor, commentator and author of innumerable books and articles. He has a rare talent for grasping the issues of international law. He combines great clarity and command of detail with a focus on practical application of the law. He has become known as a persistent force, who has motivated many of his co-workers and inspired a generation of students. He has acted as the conscience of the International Criminal Court by speaking out on the new and complex issues it faces. Judge Cassese is now once again based in The Hague as President of the Special Tribunal for Lebanon.
Gentlemen, the development of international criminal law is largely the result of your work. With unflagging zeal you have kept interest in universal justice alive and worked for the establishment and recognition of international tribunals. By honouring your efforts with the Erasmus Prize, we wish to express our deep appreciation for your perseverance in the fight for universal justice.
I should like to end my address with a striking quotation from the closing speech made by Benjamin Ferencz at Nuremberg, delivered at the trial where he was the chief prosecutor. Judge Antonio Cassese, as President of the International Tribunal for the Former Yugoslavia, repeated these same words while reporting to the United Nations in 1997. These were powerful words, spoken about men who had committed great atrocities. Prosecutor Ferencz told the court that: ‘Life was their toy and death was their tool, and if these men be immune, then law has lost its meaning, and man must live in fear.’
Gentlemen, we hope that the power of your words and your arguments will remain a source of inspiration for all those who want to see large-scale atrocities punished, and the rule of force replaced with the rule of law.
May I ask you, Mr Cassese and Mr Ferencz, to please come forward to receive the insignia of the prize.
Acceptance Speech Antonio Cassese
Your Majesty, your Royal Highness, Excellencies, Ladies and Gentlemen
In the dark labyrinth of our lives, one of the few things of which we can be certain is the intolerable amount of suffering that human beings cause to one another through cruelty, armed clashes, aggression. Criminal justice is among the most civilised responses to such violence. It channels the victims’ (and their next of kin’s) hatred and yearning for bloody revenge into collective institutions that even-handedly appraise the accusations and assuage the victims’ demands by punishing the culprit. Thus, criminal justice addresses the need to satisfy both private and collective interests. It merges the private desire for “an eye for an eye” justice with the public need to prevent and repress any serious breach of public order and community values. In this way criminal justice potently contributes to social peace.
These notions, of course, are not new. We find them - graphically portrayed - in that astounding repository of human wisdom that are the Greek tragedies. Aeschylus tells us that, to avenge the murder of his father Agamemnon, Orestes kills his mother Clytemnestra, who had slain Agamemnon as retaliation for offering their innocent daughter Iphigenia as a sacrifice to the gods. Murder begot murder, in a cycle of uninterrupted violence. Orestes is not at peace, however. Ever since his murderous deed he is pursued and tormented by the Erinyes, “the daughters of Night” and the spirits of revenge and retribution. The killing of Clytemnestra, instead of offering Orestes respite, brings him more disquiet and anguish. The ineluctable cycle of death is only broken when Orestes is put on trial before the highest court, the Areopagus. It is only when this impartial collective institution pronounces his innocence and he is acquitted, that the Erinyes are turned into the Eumenides, that is to say ,“the kindly ones”, the spirits of forgiveness and reconciliation. Only then is peace re-established. The trial before the Areopagus symbolizes the replacement of spiralling destructiveness and summary self-justice by the collective and impartial weighing up of good and evil. Justice puts a stop to violence and sweeps away hatred. As Plato wrote in his Republic, "justice is a thing more precious than many pieces of gold".
International justice too fulfils this role. Its surge is indeed one of the few major achievements of the world community we may observe in the last twenty years. It is significant for two reasons.
The first is that it responds to atrocities and endeavours to put a stop to them, not by using traditional channels, that is, through nation States, but by a more direct and effective way: by making accountable those very individuals who, normally hiding behind the shield of state sovereignty, grossly breach human rights. Bringing to book such individuals is the most efficacious manner of ensuring respect for human rights. As the Nuremberg Military Tribunal aptly proclaimed in 1946, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Consistent with this holding, the Nuremberg Tribunal did not issue orders and enjoinments to Germany. Rather, it directed its justice at individual human beings, the former leaders of the Reich.
This system of justice had been a dream for centuries. The dream came true in 1945, was then halted but resumed in the early 1990s, with the establishment first of ad hoc tribunals and subsequently of the International Criminal Court and many hybrid tribunals.
The second reason why the emergence of such a system of justice has been a stupendous achievement in the world community is that it brought about a revolutionary innovation in this community: a seismic shift in thinking about sovereignty. Traditionally, Leviathans only faced one another. Monarchs and princes engaged in dealings solely between themselves. Each wielded unlimited authority over his own nationals and had no say over the citizens of other rulers. The King of Prussia was not allowed to act against a British subject unless he had trampled upon Prussian laws on Prussian territory. The only circumstance that placed any State in direct contact with foreign individuals, whatever their nationality, was the fight against piracy. This exception, however, was not dictated by the need to safeguard a universal value. It was grounded in the joint interest of States to repress those trouble-makers who hampered free transit on the high seas. It is indeed notable that no international body or institution for the repression of piracy was ever set up. No, the task of detaining and hanging pirates was left to each individual State. Save for this relatively minor exception individuals were insignificant pawns in the society of States.
In the aftermath of the Second World War this trend was dramatically broken and a new nomos was created, based on the supremacy of international law over domestic law. As a consequence, international legal imperatives began to have a direct impact on individuals. Article 6 (c) of the Charter of the Nuremberg Tribunal provided that crimes against humanity would be punished even if they were not “in violation of the domestic law of the country where perpetrated”. This meant that a person, although acting in conformity with his own national law, could nevertheless be punished for violating legal imperatives laid down by an entity other than the national legislature, namely the international community. As a US Military Tribunal sitting at Nuremberg held in the Flick case, “international law, as such, binds every citizen just as does ordinary municipal law”.
In sum, with the establishment of international criminal tribunals international bodies penetrated that powerful and historically impervious fortress - State sovereignty - for the first time, to reach out to all those who live within the fortress.
However, international criminal justice pays heavily for being at the cutting edge of a global society in which the Westphalian model of world order - the model that took shape after the peace of Westphalia in 1648 - is still deeply ingrained; a society where self-interest still plays an overwhelming role and where community values are considered more as lofty proclamations than effective guiding standards; a society that, as noted by a German scholar back in 1932, is still built on a volcano - sovereignty - with the consequence that any tremor of the volcano poses a threat to the network of fine edifices patiently built over centuries. And here lies the heavy price that criminal justice has to pay to the traditional structure of the world society: international criminal courts remain entangled in, and fettered by, the intricacies of sovereignty. In other words, they too are built on the volcano. States shy away from taking the audacious step capable of making international criminal courts fully autonomous and effective, that is, authorizing once and for all that international investigators, police officers and court marshals be allowed freely to enter the territory of sovereign States and execute international judicial orders there - in order to gather evidence, interview witnesses and arrest suspects or indictees. Such a step has been seen as an intolerable intrusion into the sovereign domain of each State. States have established international criminal courts and granted them authority to judge crimes of individuals – but they have stopped short of backing up this authority with all the enforcement tools required to make it fully operational. International courts have been bestowed with the sceptre and the gavel, not however with the attendant sword. It follows that they can only operate as long as sovereign States are prepared to lend them a helping hand. Indeed, Milosevic, Karadzic and Taylor were arrested and brought to trial only because the national authorities had decided to cooperate with international courts. As soon as a State on whose territory a witness, material evidence, a suspect or an accused may be found, refuses to bow to international justice, international criminal courts find themselves utterly powerless.
If this is so, you may well wonder why a traditional community which hinges on self-interest and the pursuit of national goals has accepted to establish such revolutionary institutions as international criminal courts. As we all know, initially, at Nuremberg and Tokyo, international tribunals were set up to dispose of the leaders of the vanquished States in a less undignified manner than their outright execution. In addition, thanks to the influence of the American leadership, it was felt that a public trial would have a pedagogical effect by exposing the misdeeds of the past to the new generations. In the case of the Tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Cambodia and Lebanon, the creation of international accountability mechanisms served to make up either for the failure of States and international organizations to take decisive political, military or diplomatic action, of for the lack of a robust response at the domestic level. Only the International Criminal Court was born out of a genuine desire to dispense justice regardless of any policy considerations and without taking into account any geo-political context. However, the Court was left without a powerful back-up, as it derives its strength from, and is made conditional on, State cooperation. It follows that, however noble the ideals behind its creation, the ICC too can be hamstrung by lack of State assistance.
Often international criminal courts are also marred by another significant deficiency. In spite of the good intentions of a few States and individuals, most of them tend to suffer from the 'Nuremberg syndrome', that is, the tendency to administer justice during or at the end of an armed conflict, only with regard to crimes allegedly perpetrated by those who have lost at the military or political level. This trend has unfortunately materialized in the case of the former Yugoslavia and Rwanda Tribunals. It would even seem to have crept –to some extent-- into the course of action of the International Criminal Court, which so far has tended primarily to prosecute crimes attributed to enemy rebels by the States which had deferred to the Court’s jurisdiction.
Is this unfortunate pattern destined to be a hallmark of international criminal justice? I do not think so. Nevertheless, I am keenly aware that human beings tend to be blind to and forget their own wrongs. Instead, they are eager to prolong their military or political victory over hated adversaries by bringing them to book once the weapons have been laid down. Indeed, to the best of my knowledge, the only case of deep compassion by a victor for the plight of the vanquished enemy belongs to fiction, thus proving that it is only in the realm of imagination that such sentiment emerges. I am referring again to a Greek tragedy: in The Persians, written in 472 B.C., the Athenian Aeschylus – eight years after the defeat of Darius, the king of Persia, at the hands of Athens –laments the desperation of the vanquished and their misery, instead of extolling the glory of his own people, the Athenians.
Should all this lead us to doubt that international criminal justice will ever bring all its generous potential to fruition? I think not. International criminal courts are institutions that, precisely because of their profoundly innovative nature, may not display their results in the short term. If all those involved in those courts, by dint of patient if obscure efforts, work daily to make them vibrant institutions, in perhaps twenty or thirty years they are likely to bring to maturation their huge potential. The courts will thus increasingly contribute to the building of a robust dam against the flow of future inhumanity.
To fulfil this task we must count on the young, on the salt of the earth. It is for this reason that I will entirely devote the grant generously awarded to me by the Erasmus Foundation, and for which I express my deep gratitude, to a Trust Fund. This Fund will be tasked with assisting those young scholars and practitioners who are eager to make a contribution to the development of international courts. The Trust Fund will help them, I hope, to become instrumental in the gradual realization of our dream – the dream to see one day a fully-fledged, truly effective, expeditious and fair international criminal justice.
Article 2 of the Constitution of the Praemium Erasmianum Foundation reads as follows: Within the context of the cultural traditions of Europe in general and the ideas of Erasmus in particular, the aim of the Foundation is to enhance the position of the humanities, social sciences and the arts. The emphasis is on tolerance, cultural pluralism and non-dogmatic, critical thinking. The Foundation endeavours to achieve this aim through the award of prizes and by other means. A money prize is awarded under the name of Erasmus Prize.
In accordance with this article, the Board of the Praemium Erasmianum Foundation has decided to award the Erasmus Prize for the year 2009 to Antonio Cassese and Benjamin Ferencz.
The Prize is awarded to these two gentlemen on the following grounds:
- Both men have significantly contributed to the development of a universal system of law.
- Mr Ferencz has made the prevention of aggression and war the main goal of his efforts and has been the driving force behind the establishment of the International Criminal Court.
- With untiring zeal mr Ferencz keeps fighting for a more peaceful world where the rule of law prevails.
- Mr Cassese has played a pioneering role in creating the first courts for administering international justice and establishing their authority.
- In his function as judge, teacher, scholar and critic, mr Cassese has motivated a great number of students and collaborators and has played a crucial role in the recognition of international tribunals.
- Together these men - the prosecutor and the judge - form the embodiment of the endeavour to punish, prevent and eliminate international war crimes and crimes against humanity.
Antonio Cassese en Benjamin Ferencz
Antonio Cassese and Benjamin Ferencz were awarded the Erasmus Prize together in 2009.