The Sun Climbs Slow

On April 27, 1941, the British prime minister Winston Churchill addressed his people in a nationwide radio broadcast. The world was at war, and the war was going badly for the Allies. That very day Greece had surrendered to the Nazis and Yugoslavia had done the same just ten days earlier. Britain itself had been under air attack for almost a year. Not that Sir Winston would ever allow such discouraging thoughts to cross his lips, at least in public; his voice, on the contrary, was inspirational, a rallying call to the beleaguered. It was also a voice of thanks to America for its recent decision to patrol
the Atlantic, where German U-boats were preventing supply ships from delivering their cargo. The “action of the United States . . . will be dictated not by methodical calculations of profit and loss, but by moral sentiment,” testified Churchill with a flourish of appreciation. “Never, never in our history, have we been held in such admiration and regard across the Atlantic Ocean.”

Churchill maintained (rightly as it turned out) that America’s participation in the war for what he believed were moral as well as strategic reasons would mark a decisive turning point in the conflict. And to emphasize this point he quoted directly from the greatly loved poem “Say Not The Struggle Naught Availeth,” by the Victorian poet Arthur Hugh Clough. Clough’s language may sound overly romantic to contemporary ears, but Churchill inspired the British by pointing to America’s new resolve. Over the BBC airwaves came these words:

For while the tired waves, vainly breaking,
Seem here no painful inch to gain,
Far back, through creeks and inlets making,
Comes silent, flooding in, the main.
And not by eastern windows only,
When daylight comes, comes in the light;
ln front, the sun climbs slow, how slowly,
But westward, look, the land is bright.

I have chosen Clough’s phrase, “the sun climbs slow,” as the title of my book for two reasons. First, because it is a fitting metaphor for the concerted effort that has riveted the eyes of the world over the past decade and a half and still bedevils us today: bringing criminal justice and accountability to the international sphere, where politics too often trumps law. Second, because, seventy years on, a sad irony surrounds Churchill’s earnest assurances about America’s commitments. The United States did help to divert and destroy the seeming relentless sweep of the Nazi war machine; and in the immediate postwar years America was an ardent supporter of international cooperation, justice and human rights. But that has changed. When the International Criminal Court–the world’s first permanent tribunal of international criminal justice–came into being in the late 1990s, the subsequent Republican government of George W. Bush tried to destroy it with every means at its disposal.

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During the last decade of the twentieth century, two remarkable, almost simultaneous, events occurred, both of them precipitated by the end of the Cold War. In 1991, the implosion of the Soviet Union opened the door to the emergence of a single, unchallenged superstate–the United States–and like all unimpeded world powers, past and present, the newly enhanced American empire soon buttressed its weight with the age-old claim that might makes right.

The second extraordinary event of the era was the creation of new international courts of international criminal justice. Fifty years after the Nuremberg trials condemned the leaders of the Nazi enterprise, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda were empowered to prosecute individuals for the worst offences ever codified in law, including crimes against humanity and genocide. During the Cold War, earlier judicial initiatives of this sort had been suspended in aspic. These two new courts, and several others that followed, were universally supported because they were limited to trying suspected perpetrators from specifically designated conflicts. However, when global justice assumed a permanent mien, as it did with the emergence of the simply named International Criminal Court in 1998, the United States grew wary. National sovereignty was under siege, it protested: an ongoing court mandated to try the world’s worst perpetrators would challenge the rules that had underpinned the international order for hundreds of years. This was at least partly true. But a new international order favouring justice and accountability was quietly seeding itself regardless, with the support of more than half the countries in the world, especially Canada. Lloyd Axworthy, who was the foreign minister at the time, was the world’s leading advocate of human security and “soft power,” the use of diplomacy and persuasion in inter­national affairs in lieu of military might.

The Sun Climbs Slow is the harrowing story of the battle waged by the administration of President George W. Bush against the International Criminal Court. It is a story about the bedrock rule of law, and what happens when national leaders subvert or ignore foundational global agreements, which have been hard won over centuries, to suit their own purposes. It is about the striking ease with which the consensus regarding fundamentals such as the abhorrence of torture and the presumption of innocence can be eroded when influential people claim that it is right to abandon long-standing laws and values, even in well-established democracies. It is about deeply rooted disagreements over the conduct of the powerful and the rights and duties of citizens, that have never ceased to demand resolution.

At the end of the most violent century ever recorded, humanity reached a major crossroads in the endemic conflict between two opposing realities: the determination of superpowers to impose their will, and the effort on the part of thousands of people across centuries to ensure that leaders who commit major crimes are held accountable before the world community. As I write these words, the neo-conservatives who achieved prominence in the United States with the election of George W. Bush in 2000 are jumping, or being pushed, off a sinking ship. Their departure makes it easier to understand their influence on early twenty-first century America and the world at large from a historical perspective.

My interest in this subject goes back to my undergraduate studies, to the then-startling recognition that differing ideas about how to live and govern justly were being debated thousands of years ago. What brought me to write this work was the realization that in an increasingly dark world where ordinary civilians are often directly targeted by enemy armies, the rule of law, alone, can offer hope for protection and deterrence; and that large-scale crimes must be elucidated and judged in order to restore social balance.

Although I have long been interested in the Nuremberg trials of the chief Nazi perpetrators at the end of the Second World War because they blazed a new trail of accountability, I may have begun this work back in 1983, while I was researching a book about France’s landmark trial of the Nazi war criminal, Klaus Barbie. I became fascinated by the implications of bringing war criminals to justice. France had not recovered from the cracks in its social fabric that had emerged during the bitter wartime Nazi occupation, nor had the French seriously confronted their buried past. The Barbie trial provoked a public cataclysm, one that was repeated again and again during the decades of the 1980s and the 1990s, as the French government insistently pursued other perpetrators for crimes that were committed during that era. I came to see that, in addition to ending the impunity of high-placed criminals, the evidence presented in an open, transparent court can expose the factual truth about what occurred during a conflict; and that, if handled properly, such trials may eventually play a role in reconciling divided populations.

The writing of The Sun Climbs Slow has been a compelling personal experience involving four years of on-the-ground research on two continents. And throughout, I have held an indelible picture in my ­mind–­a fleeting image of a small girl in a refugee camp somewhere in Darfur whose little form once caught the eye of a television camera. She is two, perhaps three, years old; she is standing beside her mother, who is seated on the ground. Her lower lip shoots forward in that unhappy, defiant pout every parent will immediately recognize, as if to say “Why am I in this strange place? I want to go home!” She is too young to understand anything except that her life has been interrupted. She is healthy. Her wide eyes look directly at the ­camera.

I want to whisk her away. Save ­her.

Is she still alive? She haunts me still when sleep refuses to ­come.

This book was written for her and for the millions like her, for international criminal justice, should it succeed, is both promise and possible antidote. We are at the cusp of something so new that it can properly be called ­untried.

The debate over power versus law may be as old as humanity itself. But the “winning side” in this latest eruption of an ancient dispute will help shape the course of the ­twenty-­first ­century.

one
The ­Inauguration

It is March 11, 2003, and close to a thousand dignitaries, human rights activists and representatives of ­eighty-­nine states from around the world have arrived in The Hague, Holland–a city that has been celebrated since the seventeenth century as a centre of international diplomacy and a refuge for persecuted minorities. At one o’clock in the afternoon they begin to assemble in the ancient Ridderzaal, or “Hall of Knights,” the medieval parliament of the Netherlands. Except for the modern luxuries of central heating and the small electric bulbs that illuminate a dozen chandeliers where once tapers flickered, the palatial interior of this building has changed little, I suspect, since it was constructed in the ­mid-­thirteenth century to mark the ascension of Count William of Holland to the universal throne of the Holy Roman Empire. Two regal chairs decorated with ornate crowns and gold velvet canopies sit together on a raised dais, backed by a red velvet curtain. On the walls are the coats of arms of the former Dutch, Bavarian, Burgundian and Habsburg rulers of the country, as well as the banners of the provinces and the former overseas possessions of the kingdom. Holland has a ­multi-­layered history of commercial sea trade and colonial ­territorialism.

The excitement in the room is palpable as the invited guests parade down the centre aisle to their ­velvet-­covered seats. The world’s first permanent international criminal court, the result of a 1998 treaty that came into force on July 1, 2002, is about to be formally inaugurated. Representatives from more than half the countries in the world have come to mark the birth of the most important institution to penetrate the global sphere since the creation of the United Nations in 1945. They all believe that the appalling crimes that have tainted, and continue to taint, our era simply must be ­addressed.

The legacy of the twentieth century is one of unsurpassed brutality. Within the span of one century we have witnessed the genocide of Armenian civilians by the Turks in 1915; the murderous Japanese assault on Nanjing, China, in 1937; the Nazi Holocaust against the Jews in ­mid-­century; the special horror of Josef Stalin’s crimes against his own people; apartheid in South Africa; the annihilation of millions of Cambodians by their fellow countryman Pol Pot; the grotesque cruelties of Idi Amin in Uganda; vicious genocides in both Yugoslavia and Rwanda; and the ongoing shame of Darfur, the Congo and the other warring regions of the African continent. The International Criminal Court was born of this history as the embodiment of a simple, powerful idea: the need for a permanent tribunal to prosecute the perpetrators of genocide, crimes against humanity and war crimes,1 the most serious offences ever codified. It is a newborn with enough potential muscle to influence the way nations, and especially their leaders, consider their choices. Its mandate is to mount an assault on the ­age-­old scourge of criminal impunity, on behalf of the peoples of the ­world.

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We rise as Queen Beatrix of the Netherlands is escorted down the aisle by Jan Peter Balkenende, the country’s prime minister. United Nations ­Secretary-­General Kofi Annan also takes his seat in the front row. The new court is the creation of global multilateralism, and Mr. Annan has been a strong supporter. This is fortunate, for although the UN will not control the workings of the International Criminal Court, the tribunal will need its backing. With no police force or other such operational support, the ICC will depend entirely on the moral, tactical and financial support of the international ­community.

Also seating themselves in the front rows are the eighteen newly elected judges of the court, representing eighteen countries across the globe. One month earlier it took ­thirty-­three rounds of ballots for the nations that had signed on to the Rome Statute, the treaty that established and underpins the ICC, to elect these men and women. Prominent among them is Philippe Kirsch, a Canadian, who is about to be chosen by his peers as president of the tribunal. It was he who headed the remarkable negotiations in Rome, in June 1998, that made this moment possible. This day is a triumph, and not merely because a criminal justice court that has been dreamed of for centuries is being ushered into the world. Before the ICC could become a reality, a minimum of sixty nations had to ratify the Rome Statute, but ­eighty-­nine countries have already made this formal commitment. This has happened far sooner than anyone ­expected.

One country is conspicuously not represented in this room. The absence of the United States is glaring. “The American ambassador to The Hague wrote to say he would not attend,” a spokesman for the court announced earlier to the assembled media. The brittleness in his voice was ­unmistakable.