Vital Interests: Leila, thanks for participating in the Vital Interests Forum. You are a scholar and practitioner of international law with a focus on international criminal law. To start our conversation can we look into universal norms - how they evolved and why in these times of disputed truths they are of particular importance?

Leila Sadat: Thank you so much, John. It is really a pleasure to join you today. 

The notion of accepted norms arrived through practical necessity, whether they are norms involving the law of the sea, regulation of world trade, or recognition of core human rights. 

In the fields of international criminal law, human rights, and international humanitarian law to which I have devoted much of my professional career, the modern idea of the human person as having rights against the government emerged from the revolutions of 1776 and 1789. For international humanitarian law, the first international codification of this idea in modern times was the negotiation and adoption of the Geneva Convention of 1864, that adopted rules attempting to humanize war.

The extraordinary moment of 1864 did not address the legality of war itself.  So even at the founding, there was some disappointment with the result. Clara Barton, the founder of the American Red Cross and advocate for the ratification of the 1864 Geneva Convention by the United States, argued that the world was not ready to accept any limitations on war itself. Rather, she thought that the best that could be hoped for was the humanization of war, so that soldiers had a right to medical treatment, to be cared for no matter which side they fought for, and that the sick and wounded would not be left dying in the field. This emerged from the 1859 Battle of Solferino moment memorialized by Henri Dunant, when some 35,000 wounded soldiers were left to die on the battlefield because of non-existing combat medical services. 

VI: Wasn’t the Second World War, with the horrors of concentration camps and civilian deaths in the tens of millions, a benchmark in human history where nations demanded that new norms were needed to prevent such crimes against humanity from ever occurring again?

Leila Sadat: Ideas about humanitarian norms traveled through the 19th into the 20th century. World War I was the first time that an attempt was made to enforce some of the ideas, but after the war sovereignty proved to be a major obstacle to initiatives like the establishment of the League of Nations and the trial of the Kaiser. It seems that it takes a cataclysmic event before attitudes to rules governing the conduct of war and the protection of human rights can evolve. World War II and the Holocaust provided the necessary impetus. To paraphrase the Opening Statement of Justice Robert H. Jackson, Chief Prosecutor for the United States at Nuremberg, civilization could not ignore the devastating and malignant crimes that had been committed by the Nazi regime, because it simply could not survive their being repeated.

Whether you take 50 million deaths as your benchmark or 85 million -- however you try to quantify the horror of that war -- it was so bad that it caused the extermination of a substantial part of Europe's Jewish population and impoverished the entire European continent. The Soviet Union, China – indeed, the entire world – was engulfed by the conflict, which only ended with the dropping of atomic bombs that incinerated more than a hundred thousand civilians in a matter of minutes. It was about as awful as one can imagine. 

When the United Nations Charter was negotiated at the end of the war, embedded into the Charter was the core idea of stopping the scourge of war, which was linked to the protection of human rights. The UN Charter and the Charter for the International Military Tribunal at Nuremberg were negotiated at the same time, and the Nuremberg Judgment represented a new point of departure for the international community and for international law. 

It is important to recognize that there is a lot of criticism of the Nuremberg trial that is appropriate. The Tribunal was a form of victor's justice, and there was no possibility of appeal. However, the trial was also conducted with a very high degree of professionalism, defense counsel participated actively and effectively, and the judgment was well-crafted. The Tokyo Tribunal had fewer hallmarks of procedural fairness, was established by Military Proclamation, and the judgment spawned stinging dissents criticizing the proceedings. For these, and other reasons, it has been less influential, although it is increasingly studied today. Conversely, the Nuremberg Charter was ratified by twenty-three states and its judgment laid the foundation for much of modern international law, including the prohibition of aggressive war and the criminalization of crimes against humanity, genocide, and war crimes. The Nuremberg principles were later codified by the UN International Law Commission and adopted by the General Assembly. 

Turning to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, it was not easily negotiated, as Raphael Lemkin has documented. Nonetheless, there was a consensus that acts intended to exterminate racial, religious, national, or ethnic minorities were criminal, and states had a duty to prevent and punish them. All the great powers have now ratified this treaty, although it took many years for some to sign on. In total,152 nations have acceded to this significant treaty including virtually all of the Americas, Europe, the Middle East, and much of Asia and Africa.

VI: To achieve the universal norms articulated in the Genocide Convention required representatives from differing backgrounds getting together over the course of months/years to agree on definitions which they accept as truths that their countries will stand up for and defend. These are not easy definitions to agree to, but doesn’t it demonstrate that there is a process to arrive at universal truths?

Leila Sadat: Absolutely. Diving even deeper, what is really baked into the DNA of the Genocide Convention and the UN Charter is the recognition that there was a problem with the old way of doing things, and that the ancien régime, which deferred to the sovereignty of states and viewed war as the prerogative of the State, was no longer acceptable. It led to constant global conflict, the commission of atrocities, and economic ruin, and world leaders recognized that to survive, humanity had to do something different. This is apparent in the text of the UN Charter, and evidenced by the negotiation and adoption of the Genocide Convention. These instruments establish a new world order that enshrines protection for basic human rights -- perhaps not all the human rights that we would hope to see, but a minimum set of standards including fundamental norms addressing the worst kind of atrocities. 

VI: Importantly, did these efforts represent not only opinions from the United States and Europe but also from the Soviet Union, China, countries in Africa and Latin America? Was it a genuine global effort?

Leila Sadat: Absolutely. This was a global effort. That said, much of the world was still under colonial domination at the time. Interestingly, it was not until after decolonization that the General Assembly finally adopted Resolution 3314, codifying the crime of aggression, which it had been unable to do right after the war. This was not directly attributable to decolonization but was accomplished as membership in the United Nations expanded. 

VI: While it is important to have international acceptance of conventions, isn’t there a need for mechanisms for accountability for those who violate norms? 

Leila Sadat: There's a wonderful essay by Thomas Buergenthal, the former U.S. judge on the International Court of Justice (ICJ), where Tom talks about the three stages needed for the effective implementation of international norms. First, there must be agreement on the norms themselves, and that happened with the negotiation of the Genocide Convention. Then institutions must be established, and finally, enforcement is required. We cannot really have a rules-based legal order unless we have enforcement, and national systems are often unable or unwilling to enforce fundamental international norms. For this reason, the establishment of the International Criminal Court is a natural and important evolution.

VI: Getting a global consensus is challenging. Country representatives come to negotiations with their own ideas about justice, punishment, and sovereignty. For example, what was the position of the United States during the ICC negotiations and final meeting in Rome when the ICC statute was finalized and ready for adoption? 

Leila Sadat:  What happened with the United States during the Rome Conference was tragic. I am not sure if it was avoidable. The United States was relatively positive, even if wary, about the future Court as it headed into the negotiations, possibly because it did not think the movement to establish the Court would succeed. The U.S. delegation played a very constructive role with respect to the norms, including the definitions of crimes against humanity, genocide, and which war crimes should be included in the statute. Reverting to my three-part test of norms, institutions, and enforcement, what became apparent during the negotiations was that the United States was relatively enthusiastic about negotiating the norms – but more wary regarding institutional design and at odds with many other delegations when it came to enforcement. 

I am simplifying here, but essentially what the United States wanted was a Court controlled by the Security Council, where the United States would have a veto over all future cases. And the U.S. delegation would not budge. Unlike the United States, however, most other delegations did not want the Court subject to the Security Council because the vetoes of the permanent members had stymied the Council before. Instead, they wanted the Court to be independent, impartial, and effective. That was a red line for the United States, and it was a different red line for everybody else. The United States called for a vote in the last minutes of the Diplomatic Conference and lost, in a humiliating defeat of 120 in favor of the Statute, 7 opposed. The Court has now been joined by 123 States to date, including almost all of the closest allies of the United States.

VI: President Clinton signed the Rome Statute but never sent it to the Senate for fear it would not be ratified. When the Bush administration undertook its Global War on Terror it rejected any jurisdiction of the ICC and even maintained that aspects of the Geneva Conventions did not apply. The Obama administration was more positive toward the Court but as soon as Trump took office, he rejected all cooperation with the ICC and was openly hostile to its work. Do you think the Biden/Harris administration will put the ICC on their agenda of reengaging with international organizations?

Leila Sadat: Just to walk back a little bit. As I mentioned, during the diplomatic negotiations at Rome, the United States appeared to be firmly committed to the crimes codified in the statute. It was more the enforcement mechanisms that concerned it. Subsequently, following the 9/11 attacks, the Bush administration essentially embraced torture and cruel treatment of detainees captured in the “war on terror” as official U.S. policy, although lawyers wrote memos asserting that the so-called “enhanced interrogation techniques” did not constitute torture. This created a gulf between U.S. practice and the criminal law of the ICC Statute, not just the adjudicative mechanism. 

What happened next was important: The international community pushed back and rejected the reinterpretation of the Geneva Conventions and other instruments by the Bush administration and reaffirmed that the prohibition of torture and cruel treatment was a universal norm. As a result, the rules of human rights law and international humanitarian law remained unchanged as a formal matter. Nonetheless, when a power like the United States attacks these universal norms, their force and effect are eroded. 

When President Obama took office, he repudiated torture, but began a policy of drone strikes that was controversial and many argued was inconsistent with international law rules on the use of force and human rights law, although his legal advisors defended the strikes. So, what we have seen is a continuing slippage of principles we thought had been universally agreed to in 1998. Since the 9/11 attacks the United States government has often acted to protect “the Homeland” at all costs, even setting aside well-established norms such as the prohibition against torture, either by repudiating them or reinterpreting them to weaken their effect. This tendency to “interpret” accepted norms was the beginning of looking at facts as opinion.

That was a dangerous development and it set the Trump administration on course to attack the norms and the institution created to enforce them. Consequently, the ICC became the target of a vitriolic campaign. There was tremendous hostility toward the Court in the early years of the Bush administration, escalating during the Trump years. Secretary of State Mike Pompeo went after ICC prosecutors first by revoking their visas, then by publicly threatening Court officials and their families who, it was announced, were or would be banned from entering the United States, and subject to further sanctions by the U.S. government.

On June 11, 2020, former President Donald Trump issued Executive Order 13928 deeming the ICC to be a threat to U.S. national security and giving the administration the right to sanction individuals working for the Court or materially assisting the Court under the International Emergency Economic Powers Act (IEEPA). This is an extraordinarily robust piece of federal legislation which authorizes the President to regulate international commerce after declaring a national emergency in response to any unusual and extraordinary threat to the United States. It was used to target Iran during the hostage crisis and subsequently applied to terrorist organizations. It provides for the freezing of assets and blocking of financial transactions, as well as civil and criminal penalties. Applying the IEEPA to a global institution like the International Criminal Court is unprecedented and unthinkable, but the Trump administration did just that.

VI: Wasn’t this reaction of the Trump administration because the ICC chief prosecutor began to investigate possible war crimes in Afghanistan that involved American military personnel and contractors?

Leila Sadat: That was the stated reason. I think there was also concern about the possibility of an investigation into the Israel-Palestine situation, which has been under Preliminary Examination at the Court. Granted, these are areas in which the United States government believes it has very strong national security interests. But the assertions made by administration officials about the way the Court’s activity might compromise those interests was simply untrue. 

VI: Is the American objection to ICC investigations primarily on what they might designate as a war crime? If a U.S. soldier is in a conflict situation and violates the laws of war by deliberately targeting civilians, then under international norms that is a possible war crime?

Leila Sadat: Yes, on the surface. But I think it goes more to the U.S. wanting an absolute veto. It does not even want to look at whether war crimes may have been committed. The United States is not actually defending the inquiry on the merits (in the Afghan situation the allegations relate to torture allegedly committed in 2003-2004). Instead, the administration’s argument is broader, which is that the ICC has no right to ever investigate anything any American has ever done, because the United States did not ratify the Rome Statute. In other words, the U.S. view is that Americans – and their allies -- are immune from scrutiny.

The problem is that international criminal law does not work that way. If I travel to France, get in trouble, and am arrested by the French police, I cannot wave an American flag and say, "I'm an American and I travel around the world being able to do whatever I want with impunity." That is not how the rule of law works. States have jurisdiction over what happens on their territory. That is the basis for the ICC being able to investigate in Afghanistan, because Afghanistan has ratified the ICC Statute. 

The other thing that is important to note regarding the Afghanistan situation, is that it is only at the investigation phase. We are not talking yet about a prosecution, or specific cases. Moreover, the principal source -- other than some witness testimony – relating to allegations of torture committed by U.S. persons during the “war on terror” is the U.S. Senate Intelligence Committee Report on CIA Torture that was concluded in 2012 and published, in part, on December 9, 2014. 

So, most of the evidence submitted to the Court regarding the allegations against U.S. persons is not politically motivated information emanating from foreign sources but comes from U.S. government reporting. The Senate conducted the investigation because, to the credit of the U.S. government, it is relatively open, and torture and cruel treatment are international crimes that violate the law of war. As the late Senator John McCain once said, "We have to stop torturing. I was tortured in Vietnam. It was awful." Congress adopted the Detainee Protection Act under his leadership. The policy of torture and cruel treatment of detainees that was adopted following the 9/11 attacks was a shameful episode of U.S. history. That does not mean that the ICC needs to investigate, because the Court is a court of last resort. What it really means is that the United States must bring cases on its own. 

Indeed, ICC prosecutor Fatou Bensouda recently dismissed claims against U.K. nationals for possible war crimes in Iraq because she could not conclude that the UK authorities were unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions. Although the Prosecutor suggested that there were some concerns about the UK approach, surely the United States could follow the British example and conduct its own investigations to avoid ICC action, a point that two former U.S. War Crimes Ambassadors, Stephen J. Rapp and David Scheffer, have made repeatedly. If the U.S. opens its own investigation and addresses the allegations of torture and inhumane treatment itself, the ICC will have no jurisdiction and the Prosecutor will close the Preliminary Examination. As of now, she has suspended the Afghan investigation because the Afghans themselves have asked for permission to go forward with their own investigation and prosecution.

If you think about it, rather than attack the ICC, the United States should welcome an ICC investigation of the situation in Afghanistan. The Taliban are still killing people, and the bulk of the allegations in the Prosecutor’s request concern Taliban war crimes and crimes against humanity, which have victimized thousands of Afghans. Thousands of Americans have died trying to bring peace to Afghanistan, a prospect that has eluded us for twenty years. The U.S. Holocaust Museum Early Warning Project ranks Afghanistan the second most likely site of mass atrocities in the world. An ICC intervention could therefore be helpful to the United States, and to the people of Afghanistan. 

VI: You mentioned how significant the United States conducting its own event investigations would be. In fact, the U.S. military has investigated a number of charges of transgressions by their personnel in war zones which ended in convictions for war crimes only to have the Trump administration turn around and grant pardons. What does that say to the world community, when even if the American military secures convictions for war crimes, those convicted are then not only pardoned by the president but labelled “heroes”?

Leila Sadat: The pardons granted by President Trump sent a terrible message that devastated our allies and our own military leaders. I have had many wonderful students in my class who are former or current military officers, and they are distressed by the pardons. The U.S. armed forces are well-trained and highly disciplined. When rules are broken and discipline breaks down, the Uniform Code of Military Justice is available to investigate, prosecute, and punish those accused of violations. Our military command relies on our system of military justice to maintain control and discipline. Presidential pardons undermine the entire system. The pardons undermine morale and harm the U.S. image abroad.

VI: You are currently involved with efforts advocating for a new UN Convention on Crimes Against Humanity. Many think that the definitions under the Genocide Convention do not go far enough to charge individuals with serious atrocities so a new convention with more defined norms is needed. How is such an initiative moved forward? 

Leila Sadat: The Genocide Convention was adopted in 1948, and in 1949, the Geneva Conventions were adopted, but there was never a treaty on crimes against humanity, which was the crime that the Nazis were accused of at Nuremberg. The difference between crimes against humanity and genocide comes down to this: genocide protects certain, very narrow groups from destruction; crimes against humanity protects individuals from a wide variety of human rights abuses that rise to a certain level of severity. 

Crimes against humanity covers widespread or systematic attacks on civilian populations that can involve the commission of murder, rape and other forms of sexual violence, torture, detention, deportation, and ethnic cleansing. The Genocide Convention just does not address most of these atrocities. Even as regards persecution of groups, it does not cover political or social groups. 

Genocide was codified first because it is very, very hard to argue that a narrowly focused atrocity crime is an act of genocide. We are seeing that play out now with respect to the Rohingya. Although the United States has argued that the attacks on the Rohingya amount to a genocide, Professor Williams Schabas, representing the government of Myanmar before the International Court of Justice (ICJ), has argued that they do not. Yet this academic debate should be irrelevant: all the atrocities could be characterized as crimes against humanity. Unfortunately, there has never been a global treaty on crimes against humanity, which means that states cannot cooperate in prosecuting them, nor refer cases to the ICJ involving their commission. Myanmar has not joined the Rome Statute, so the only possible basis to get the entire situation before the ICC would be a Security Council referral. 

This is a real gap. Without a new treaty focusing on crimes against humanity, the Nuremberg legacy is not yet complete. This is why I started the Crimes Against Humanity Initiative in 2008, and why my colleagues and I developed a model draft convention. 

Agreeing upon the definition of crimes against humanity was straightforward because it was done during the Rome Diplomatic Conference that created the ICC. It was negotiated by the 165 States present at Rome and has now been adopted by the 123 ICC States Parties. Both the Crimes Against Humanity Initiative and the more recent work of the International Law Commission based upon it adopted the ICC definition as the centerpiece of the proposed new treaty.

To move the project forward will take some doing. We are hoping for that perfect alignment – and a window of opportunity -- where enough States are for it and no powerful States decide to oppose it. That is the political challenge we face right now. 

VI: Let's also look at some of the other actors who support international norms. We've talked about State Parties - governments that sign on to international treaties - but what about the role of international organizations, NGOs, and civic organizations around the world? 

Leila Sadat: Most international institutions rely on the United States for a substantial portion of their budget. The United States is the largest donor to the United Nations, contributing slightly less than one-fifth of the organization’s collective budget. During the Trump years the United States attacked and often defunded global institutions including the WHO, the UN, the ICC, the WTO, and NATO. This harmed their effectiveness. 

Trump’s “America First” mantra was a bizarre throwback to an earlier era and was simply not a realistic program for effective governance in a 21st century world that is increasingly “hot, flat, and crowded,” to quote Tom Friedman. Fortunately, we are in a rebuilding period with the Biden/Harris administration immediately endorsing reengagement with international organizations and global cooperation, although they have not yet rescinded Executive Order 13298.

The constant refrain regarding “the need to reform” international institutions is worrisome. All institutions can improve their performance. But the vitriol directed at global institutions like the ICC is in sharp contrast to the tolerance domestic constituencies have for significantly underperforming domestic institutions. The U.S. Supreme Court is now a sharply partisan and countermajoritarian institution that is not representative of the people of the United States. Yet there remains a veneration for the institution itself that transcends its current problems. International institutions, in contrast, get no benefit of the doubt. 

VI: As a new isolationist mentality pulled the United States back from international engagement, other countries have gladly moved forward and taken a very active role in international organizations. China and Russia are both espousing rhetoric on the importance of global cooperation. Can the U.S. easily re-exert its role as a world leader? 

Leila Sadat: I think once the United States is exercising calm, steady governance it is possible. One of the best things I read about Joe Biden is that his administration will be boring. Appointees are going to go into global meetings without histrionics and without slamming their fists on the table. Instead, they will be preparing for meetings, quietly rolling up their sleeves, and getting their work done. I think everybody is excited to have boring - and competent - leadership from Washington.

Yet it is impossible to “unsee” what happened under the leadership of Donald Trump, and it will be difficult to rebuild trust with our allies. Moreover, other states, such as China, opportunistically moved into the vacuum created by the U.S. withdrawal from global leadership. In the absence of a U.S. representative, China and Russia would often exert greater authority in international fora. Once President Biden starts rejoining institutions and sending representatives to be present, a lot of that behavior will stop. 

I do not think we should delude ourselves about the Chinese agenda for human rights. The Chinese government view is that states are sovereign over their territories and their people, and others may not interfere. This is in opposition to current understandings about human rights law, and it is important that the United States is present to raise concerns. 

At the same time, it is a great sign that Russia and the United States have moved forward to extend the New START Treaty. Without much fanfare or drama, an important nuclear arms treaty got approved in the first week of the Biden administration. This suggests that the administration is likely to have a sophisticated, practical, multi-track approach to international relations.

VI: At the same time that the New START Treaty was being renewed, the Treaty on the Prohibition of Nuclear Weapons was just ignored, even though eighty-six states throughout the world are signing on to it. The United States and Russia do not even want to talk about it.

Leila Sadat: Not only don’t they talk about it, but when they do, experts have opined that the treaty is dangerous because it will undermine the NPT (Treaty on Non-Proliferation of Nuclear Weapons). That does not seem sensible. The Treaty on the Prohibition of Nuclear Weapons reinforces the goals of the NPT. It says that States cannot lawfully use their nuclear weapons, and that they should not possess them in the first place. It is interesting how many otherwise-human rights friendly states did not support the new nuclear weapons treaty, and still do not. Yet the possibility of nuclear annihilation is an ever-present danger to humanity.

VI: Leila, we are coming to the end of our time. We have had an interesting conversation on many aspects of universal norms, how they were adopted and how they are considered in the global community. As you said, there is a reason to be optimistic - that we are in a new period of international engagement and acknowledging norms that we thought were well established, but we found out in the last four years can be easily cast aside.

Leila Sadat: President Biden is well prepared. I have looked at his Senate record, and he was very progressive on issues of international criminal justice. He voted against the American Service Members Protection Act. Certainly, the suppression of dissent and sense of paranoia that permeated the Trump administration is not how the Biden administration is going to operate.

At the very least, human rights lawyers and civil society – many of whom want to see the United States engage more deeply on nuclear non-proliferation and on human rights -  are going to have their voices heard. I sincerely hope that President Biden will rescind Executive Order 13298 to dissipate the cloud of fear hanging over those who remain worried about being arrested or sanctioned in some other way if they support international justice, the ICC, and even the Nuremberg Principles. Repudiating that order and returning to the universal values embodied in the UN Charter will lift all spirits and ensure better, fuller policy debates that can produce better outcomes, and a more peaceful world.

Leila Nadya Sadat is the James Carr Professor of International Criminal Law and served as Director of the Whitney R. Harris World Law Institute at Washington University School of Law for the past 14 years. She has been the Special Adviser on Crimes Against Humanity to the International Criminal Court Prosecutor since 2012. Professor Sadat is an internationally recognized authority and prolific scholar writing in the fields of public international law, international criminal law, human rights, and foreign affairs, and has published more than 120 books and articles in leading journals, academic presses, and media outlets throughout the world.

Professor Sadat is the Director of the Crimes Against Humanity Initiative, a ground-breaking project launched in 2008 to write the world’s first global treaty on crimes against humanity, an effort that bore fruit at the International Law Commission which produced its own draft articles in 2019 that are now pending before the UN General Assembly’s Sixth Committee.