The Human Rights Blog

March 3, 2010

Admiral Mike Mullen
Chairman of the Joint Chiefs of Staff
9999 Joint Staff Pentagon
Washington, DC 20318-9999

ATTN: PLEASE SEE THAT THIS LETTER REACHES THE CHAIRMAN OF THE JOINT CHIEFS
PERSONALLY

SUBJECT: Ben Ferencz Letter to Admiral Mullen Re Aggression

Dear Admiral Mullen:

Since I am entering my 91st year and without staff, I apologize for not
being able to reach you by any other means. The message I feel compelled to
convey concerns our vital national interests. A glance at my website
(www.benferencz.org) indicates my credentials: graduate of Harvard Law School
(1943), combat soldier in World War Two (5 battle stars), Nuremberg war crimes
Prosecutor and recent winner of the prestigious Erasmus Prize for lifetime
service to humanity.

I am encouraged to write because I particularly appreciated your wise
observation (C-SPAN, Jan. 6, 2010, and elsewhere) that you "would surely rather
prevent a war than fight a war." It was a reminder of President Eisenhower's
conclusion that "the world no longer has a choice between force and law.
If civilization is to survive it must choose the rule of law." (May 19,
1958).

Nuremberg, inspired by our most respected jurist, Robert M. Jackson, stood
for the proposition that war-making was no longer a national right but an
international crime for which responsible leaders could be held to account by
an international court. The reaffirmation by the United States that law
applies equally to all was hailed throughout the world. The primary goal was
to deter illegal wars. That has been my own primary goal for half a century
and I am now calling to you for help, for the sake of our military, our
country and the world.

I have written more on the crime of aggression than anyone (all of my books
are available free on my website, courtesy the U.N. Audio-Visual Program).
The Statute for the International Criminal Court that came into existence
in 2002 lists aggression as one of the 4 crimes. No one cane be tried for
that particular crime until certain new conditions are met: (1) aggression
must be defined - that sounds reasonable enough but ignores the fact that it
has already been adequately defined; (2) the Security Council must determine
that aggression by a State has occurred - that seems reasonable too but it
ignores the fact that Security Council powers are already fully respected in
the U.N. Charter and the existing Rome Statute. Raising such non-persuasive
arguments gives rise to fears and suspicions about U.S. intentions. Until
these obstacles are removed, aggressors will know that they remain immune and
cannot face trial by the ICC. Instead of deterring war, they will be
encouraged to make war.

The ICC Statute will be discussed at a meeting of the Assembly of State
Parties between March 22 - 26, 2010, in preparation for a Review Conference in
Uganda, from May 3 - June 12, 2010. With adequate determination and
skilled draftsmanship, compromises to meet all legitimate concerns are possible.
But the goal must be clear: the lock which now exists preventing aggressors
from being tried must be removed from the courthouse door. Failure to make
"the supreme international crime" punishable by the ICC would, in fact, be a
repudiation of the Nuremberg Principles and the rule of law. It would be a
step backward instead of forward.

Despite contemporary political hesitations and legal ambiguities, we must
not lose sight of long-range goals even if short term achievements seem
minimal. We were all proud when our President received the Nobel Prize for
Peace. I am quite sure that he favors a U.S. policy that may deter war.

I would be pleased to meet with you and your legal staff should further
clarification be desired.

With all good wishes,

Benjamin B. Ferencz