Mahmoud Cherif Bassiouni is a hell of a storyteller. Early last semester an audience of students, faculty, lawyers, and judges packed into a lecture hall at DePaul University to hear him describe his role in digging the foundation for the world’s first permanent international criminal court, an independent judicial body that may one day try the world’s worst criminals. It was standing room only even before he made his entrance and worked his way to the podium, glad-handing friends, colleagues, and the delegation of Egyptian jurists that filled the first three rows. A photographer roamed around snapping away for posterity.
It was a big moment not only for Bassiouni, a dual citizen of the U.S. and Egypt, but for DePaul, where he’s taught for the last 34 years. When Dean Teree Foster introduced him, she read congratulations sent by Kofi Annan, Boutros Boutros-Ghali, and Jimmy Carter that emphasized the historic nature of his accomplishment.
Last summer Bassiouni, one of the world’s foremost experts on international law, was one of three chairmen at a UN conference in Rome, where 5,000 lawyers, diplomats, and activists from 148 countries struggled to put together an international treaty setting up the court. The story wasn’t heavily covered by the American media, even though the U.S. government kept throwing up roadblocks to the treaty–and remains one of the biggest obstacles to the creation of the court. But to hear Bassiouni tell it, the conference was an epic triumph that will change the world–and the realization of a quixotic dream he’s pursued his entire career.
“In the 50 years since World War II,” his speech began, “we have had 250 conflicts that have produced 170 million casualties. And yet the record of the world community in dealing with these conflicts has not been a record of accountability and the pursuit of justice or redress for the victims.” In fact, he said, state-sponsored atrocities are routinely forgiven as the price of restoring peace. “Yet in no society in the world would one countenance the thought that you should reward a criminal for stopping the commission of a crime.”
Bassiouni, who also served as the UN’s chief war-crimes investigator in Bosnia, recounted a long list of halfhearted attempts and utter failures to prevent genocide, war crimes, and crimes against humanity or to punish those who commit them. He said that after the Holocaust the world declared “never again,” then failed to do anything about the millions murdered in Cambodia, Liberia, El Salvador, Uganda, Chile, Bangladesh. “It is almost as if we have gotten to the point where anything under 100,000 persons killed doesn’t even make the front pages.”
It was the familiar litany of human horrors–vast, distant, and numbing–but Bassiouni kept throwing in shocking details. He drew a collective gasp from the audience when he mentioned in passing the “little-known fact” that amnesty in Panama for Haitian military dictator Raoul Cedras was arranged on behalf of the Clinton administration by Manuel Noriega from his prison cell in Florida. Ultimately Bassiouni was hopeful, inspiring. “Examples of impunity abound,” he said, stepping out from behind the lectern. “The only way to prevent them is to establish a permanent institution which removes from the political negotiator the ability to play the card of justice.”
If a court is established Bassiouni is widely expected to play a leading role in it, as a judge, chief prosecutor, or president. That might seem an odd role for a professor from a little law school, but Bassiouni knows top government officials all over the world–on the walls in and around his office are numerous photos showing him shaking hands with Earl Warren, Madeleine Albright, Hosni Mubarak. He has advised heads of state on terrorism, international drug trafficking, and extradition. He has confronted Serbian warlords and UN bureaucrats, championed landless Palestinians and the mentally ill. He’s known as a tireless and outspoken advocate for human rights and a diplomatic player whose role in international affairs has been described by various people as crucial, mysterious, or exaggerated.
Some people say Bassiouni succeeds because he has bottomless reserves of energy and personal charm. Others say he’s an administrative strongman who simply does what he wants. At DePaul he inspires intense loyalty in many and grudging respect in others. People there describe him as charming, unpleasant, brilliant, aggressive, disruptive, strong, insecure, dynamic, difficult, forceful, abrupt, aristocratic, arrogant. Yet most observers agree that this mix of qualities is precisely what has enabled him to accomplish so much.
Some say those accomplishments aren’t appreciated at DePaul. “There’s no doubt he’s undervalued,” says Len Cavise, program coordinator for the school’s International Human Rights Law Institute. “Cherif’s sense of dignity, prestige, and respect is sometimes at odds with what a lot of faculty around here think. He’s a very hard taskmaster. He has very fixed ideas of how things should be, and he wants everything done his way. Not that he squelches anybody. It’s just that with Cherif you never have to walk around saying, ‘I wonder what we’ll do today?’ He’s always got an agenda, and he always has the skills to get there.”
“There are a lot of us that feel really privileged that he’s around,” says Barry Kellman, who codirects the International Criminal Justice and Weapons Control Center, which he and Bassiouni formed to focus on arms control in the Middle East. “But I’m sure that some people are a little jealous. This is academia after all, and it’s a pretty petty place. He’s a very strong-willed personality, but I wouldn’t expect any less given his accomplishments.”
Unfavorable opinions are usually given off the record or anonymously. One law student suggested that people may be reluctant to say what they think because of the limited number of jobs in the field of international criminal law. “How do you criticize someone who’s accomplished what he’s accomplished? A lot of people disagree with him, and there’s not a lot of room to disagree. I don’t think you can accomplish what he’s accomplished if you don’t have that kind of environment around you.” Someone else put it this way: “You don’t work with Cherif. You work for Cherif–or not at all.”
During my interviews with him last fall, he sat like a benevolent monarch before a parade of students, research assistants, faculty members, and the odd distinguished visitor–Richard Masur, president of the Screen Actors Guild, showed up one day–all of whom wanted direction or advice or approval. He made time for everyone, even though he was teaching a course and a seminar, finishing off four books, and starting a new UN appointment as head of a group of experts writing compensation guidelines for victims of human-rights violations.
But then he’s always busy. He says he ordinarily travels anywhere from 150 to 170 days out of the year–to New York, Geneva, Cairo, Paris. When he’s in Chicago he’s calling the same places by 9 AM, and he works until bedtime at around 11:30–and still manages to read about a book a week. Nothing preoccupies him more than making an international criminal court a reality. And any professor of international criminal law will tell you that no one has done more to make that happen.
Bassiouni once told a reporter that growing up in Egypt was “a little bit like being a Kennedy in Boston.” His friends and colleagues don’t always remember the colorful stories about his background the same way, but those who’ve visited Egypt with him say he’s treated with nearly obsequious respect by both common soldiers and top government officials.
Ask him about his past and he’ll talk with an odd mixture of enthusiastic pride and excessive humility. Both of his grandfathers, he says, were high-ranking lawyers and statesmen–one an aristocrat, the other a populist. His maternal grandfather, Mohammed Khattab, who died before Bassiouni was born, was a counsel to the Egyptian royal palace under the Ottoman Empire and married an Austrian woman related to the Hapsburgs. His paternal grandfather and namesake, Mahmoud Bassiouni, was one of the leaders of a popular revolt against the British colonial government in 1919, for which he was arrested and sentenced to death. The conviction was overturned, says Bassiouni. “The Brits were smart enough not to execute him.” Mahmoud went on to help draft Egypt’s first constitution in 1922 and to serve as president of its senate until his death in 1944. A street in downtown Cairo is named after him.
Bassiouni’s father, Ibrahim, was a diplomat who was first posted to the United States in 1938. Bassiouni, then a year old, stayed in Cairo with his maternal grandmother and an Austrian nanny, who taught him German. By the age of ten, he says, he’d also picked up Arabic, Italian, French, English, Spanish, and Portuguese as he accompanied his father on trips abroad.
After the family returned to Egypt from Brazil in 1947, Bassiouni was enrolled in a Jesuit boarding school. “We got up at six in the morning and went to bed at 10:30 at night,” he says. “If we were out of the classroom we were made to compete athletically. There was never really a moment of doing nothing.” In 1955 he went to France to study law in Dijon. “Since I was a child growing up between my two grandfathers who were lawyers and who were very well known, I had the desire to be a lawyer at all times,” he says. “I think that my studies of law in France really honed that in me. I owe a lot to the ideals of the French legal system, including the ideals of the French Revolution and the liberal thought of France.”
Ironically, those ideals helped turn Bassiouni against his host country. By 1956 the French colonial empire in Indochina had crumbled, and France was facing independence movements in Algeria and elsewhere. In Egypt President Gamal Abdel Nasser, who came to power after a military coup, nationalized the Suez Canal–which had in effect been controlled by Great Britain–making him a hero and an inspiration to anticolonialists all over the world. “Moved by all the ideals young people had in those days,” Bassiouni returned home the week after the canal was seized and joined the army.
As a second lieutenant in a special commando unit in the national guard, Bassiouni was stationed outside Port Said on the east side of the Suez Canal, where Egyptian troops faced a British beach landing supported by intense air and naval gunfire. He was wounded in the battle, and his curriculum vitae lists four military ribbons awarded between 1956 and 1957. When I asked him what he did to earn Egypt’s highest military honors, he asked me to turn off my tape recorder, then launched into a ripping good war story. When I later tried to persuade him to tell it on the record, he said, “It’s truly funny, but you will find most people who have gone through a difficult experience like that not wanting to talk about it. I don’t know if it’s because every time you talk about it you reopen the wound or if it’s a sense of shyness. Maybe it’s even a sense of guilt–why am I the one who’s alive when other people around me died?”
Barry Kellman believes these memories are defining. “It is astoundingly important to him,” he says. “I think it goes back to old-fashioned notions of heroism, of loyalty to his regiment, courage under fire. He brings it up with such pride.” Rob Krug, who spent ten years in the army reserves, interviewed for a job as Bassiouni’s research assistant when he was in his second year of law school at DePaul. “When I went to talk to him, he didn’t ask me anything about grades or what my LSAT score was or anything,” he says. “All he did was talk army to me. ‘What unit are you in? Are you an infantryman? What rank are you?’ Then he was like, OK, you can work for me.”
During the eight-day conflict Egypt lost the Sinai peninsula to Israel (it later withdrew), but it won the psychological victory of having stood up to major powers. Afterward, Bassiouni says, he was assigned to a secret Egyptian operation training volunteers in the Algerian army for the war of independence against France.
Around this time, Bassiouni recalls, he ran across one of his favorite boarding-school teachers on a street in Cairo. The man was in tears because the government was expelling British and French citizens and other people who couldn’t prove they were Egyptian citizens, including many Jews whose families had lived in Egypt for centuries. The teacher was Jewish and had no passport, and the secret police had told him he had one week to leave the country.
Outraged, Bassiouni vowed to do something. “I go to the office of general intelligence–this dreaded building that people would cross the street not to walk in front of. I walk in, and there is this captain who is sitting in a booth. Now I’m a second lieutenant, so I don’t rank too high. But I go up to him and, typical of the way I used to think–which was terribly arrogant and terribly naive at the same time–I said I wanted to see the director. It’s like somebody going up to the gate at Langley, Virginia, and saying I want to see the director of the CIA.” The two began to argue, attracting the attention of a deputy director, who noticed the medals on Bassiouni’s chest. He was invited up to the director’s office for coffee, where he pleaded the case of his teacher.
“Two days later my professor calls me at home and says, ‘Thank you so much my son. I appreciate it,’ and this and that,” Bassiouni says, then laughs. “He said he was called by the local police, and they said he now had a month to leave the country instead of a week. But I felt a little bit vindicated. I felt I could get somewhere in the system.”
When he was discharged in January 1957, Bassiouni returned to France to resume his studies. But he’d become an outspoken supporter of Algerian independence, which led–he’s chary with details–to his being escorted by the police to the Swiss border.
For a brief time he was enrolled at the University of Geneva, where he studied under Jean Graven, president of the International Association of Penal Law, an organization that advocated the outlandish idea of a permanent international criminal court. At the time Graven was serving as an adviser to Haile Selassie, drafting an Ethiopian penal code, and Bassiouni helped him. The code included provisions on genocide, crimes against humanity, and war crimes, and Bassiouni found the work intellectually stimulating. “But it was something far too big, far too extraordinary for me to conceive. I could not emotionally relate to it because I had not witnessed the terrible tragedies I have witnessed since then.”
That summer, while visiting home, Bassiouni was offered a low-level job in Nasser’s office, quite an honor for a 20-year-old. At the time members of prominent families were being purged from the government and replaced with military personnel. While Bassiouni was undergoing a series of interviews and background screenings, he began to hear rumors of arbitrary arrests and detentions and camps where members of political opposition groups were tortured and executed.
Bassiouni couldn’t believe that Nasser, the hero of the Arab world, was responsible. He began questioning the security officers conducting his background check. Then he complained to several cabinet members. “I started protesting and grumbling and saying, ‘How can you do this?’ I guess I pestered people enough and said it publicly enough that I was arrested. One of the things that got trumped up was that I was an Israeli sympathizer and a Jewish lover because I had intervened twice at the highest level for two Jewish families. And then, because of my wartime record, there was this big debate as to whether or not I would be put in jail or maybe executed. The conclusion was that I would be put under house arrest.” His father couldn’t help him because he’d been forced out of the foreign ministry in one of the purges.
Bassiouni considers himself fortunate to have been confined to his own apartment, which was in an upper-class neighborhood, but he spent his days in darkness, fearing for his life. “The wooden shutters were nailed closed,” he says. “There were guards at the door. They cut off the electricity, tore the phone off the wall. No radio. They brought in food once a day, and of course there were threats that at any time somebody could take me out and either shoot me or take me to one of these torture camps that I protested against. It taught me the meaning of psychological torture. Within two weeks I was spending 80 percent of my time sitting or sleeping on my bed. That was fear. But it was a physical fear, not an intellectual limitation.”
He says he passed the time by methodically reviewing his life and education, recalling specific details as if they were projected on a screen. “I reread my books. I heard my professors speak. I’d remember a meeting–and the picture would focus, and I’d think, ‘I didn’t think he was wearing a tie on that day.’ It was an instinct of survival that took over, and it kept me alive.”
After seven months, without explanation, the door was unlocked, and Bassiouni was told he could leave. Unable to travel because the government had seized his passport, he was still allowed to continue his legal studies at the University of Cairo. He also found work at an import-export company and eventually was able to reclaim a confiscated 250-acre parcel of farmland that had been in his family for generations. On weekends and holidays he fled there and immersed himself in farming. “I think I would have been in a very difficult position afterward if it weren’t for the farm,” he says. “Walking in the fields or riding my horse or talking to the men was just so humanly fulfilling that the rest of it did not count. I did not develop the cynicism towards people that would have probably resulted from somebody who has seen power manipulated so wrongly. I truly came out of the experience with a confirmed belief in two things. One is that there are good people and there are bad people, and the question is how to keep the bad people from doing bad things to good people. The other is that I saw legal institutions as being the only things that would stand in the way of bad people doing bad things to good people.”
Bassiouni says he might have remained a weekend farmer in the import-export business, but his mother, who’d divorced his father and emigrated to California, had developed cancer and wanted him to be with her during surgery. “At the time I decided to leave, one had to have a passport and an exit permit,” he recalls, “both of which were officially denied. But strangely enough, you apply for both in separate offices. When I applied for the passport it was given to me totally fortuitously–because the order to deny it had come after the order to deny the exit visa, and one hadn’t caught up with the other.” The passport allowed him to obtain Italian and U.S. visas and a ticket on a steamship bound for Italy. Using a pass he’d been given for his job at the import-export company, he walked through customs and boarded the ship without an exit visa. He hid until the ship entered international waters, then approached the captain and asked to be assigned to a cabin. “He said, ‘How come you didn’t register with the purser when you came?’ I said I was very tired, and I just sat on one of the chaise longues, and I fell asleep. He said, ‘You fell asleep for 12 hours?’ I said, ‘Well, yes. I was very tired.'”
Bassiouni made his way to the U.S. knowing that he wouldn’t be returning to Egypt. A few years later his father was forced to sell the farm because of new land-reform laws, but Bassiouni says he still pays the rent on his old apartment “for sentimental reasons.”
Bassiouni’s curriculum vitae is 54 pages long. It lists his nine current and previous academic positions, 59 books (half as author, half as editor), 163 law-review articles, 20 UN positions, 6 U.S. government “consultancies,” and 16 times testifying before Congress. It also includes long lists of scholarly associations and civic groups he’s been a member of, lectures he’s given, and court cases that have cited his publications. He’s done legal work in 13 countries, including Brazil, Kuwait, and Australia. In 1972 he won DePaul’s “most congenial professor” award; in 1992 he was awarded a Medal of the Council of Europe. The resume goes on to say that he’s an honorary citizen of Noto, Italy, that he’s married, that he lives in a famous building on Lake Shore Drive, that he’s “widely traveled.”
He’s got a story for every entry. His fourth article, published in 1966 in the DePaul Law Review, was called “The Right of the Mentally Ill to Cure and Treatment: Medical Due Process,” and that leads to a tale about a minister who was committed to a mental institution in Michigan by his wife, apparently because she believed he was having an affair with his secretary. Bassiouni helped get the man released, then began studying abuses in mental-health law. He says that Rouse v. Cameron, the first court decision in the United States to uphold the right of the mentally ill to receive “appropriate” treatment, was based on his article, though the judge who wrote the opinion didn’t give him credit. “I ran into him at a reception, and I said I was flattered–but the opinion was mostly from my article, and there wasn’t even a cite to me,” Bassiouni says. “He looked at me in a completely dismissive way and said, ‘My law clerk takes care of the citations,’ and he just walked away.” He laughs when he tells this story, but there’s a trace of bitterness. These days people fall all over themselves to give him credit.
After graduating from Indiana University’s law school in 1964, Bassiouni found a job handling international investments for an insurance company in Chicago. Through a fraternity brother he met a few DePaul professors and learned that the law school was looking to bring in some new blood. His international education impressed them, though he had no teaching experience and was interested in what was then considered an improbable area of legal studies. “The notion of an international criminal law in the U.S. in 1964 was very difficult to sell to anybody,” he says. “It was way out there. When I was offered the position of teaching they said, ‘You’re gonna teach criminal law, and if you do a good job, in a couple years you can teach international law. And then a few years after that you can teach international criminal law.'”
Bassiouni would teach courses on international public law, international business relations, and international human rights before teaching his first course on international criminal law, in 1972. But he wrote about the subject and promoted the idea through his work with the International Association of Penal Law and the International Institute of Higher Studies in Criminal Sciences.
He kept his fingers in a variety of other projects too, from handling extradition cases to establishing foreign businesses to doing pro bono work for Arab-American groups. He says his commitment has always been to “champion the underdog and the victim, not the political cause.” When the government of Israel was confiscating land owned by Palestinians who’d emigrated to other countries in the late 60s, a lot of people living on Chicago’s south side were affected. “If somebody had a house and he had his old parents living in it, I would draft a lease in the name of the mother or father, or I would give a power of attorney to a relative to administer the land,” he says. “Then I would get all these documents legalized and notarized at the Israeli consul general and record them in Israel so people’s property could not be taken. I think I handled over 200 cases of individuals whose property was going to be lost.”
In 1972 Bassiouni and a former air force colonel named Eugene Fisher wrote Storm Over the Arab World, a history and survey of problems facing Arab countries. It suggested that Israel was both the source of problems in the Arab-Israeli conflict and a convenient scapegoat. Some reviews praised the book for offering this viewpoint, but a New York Times reviewer complained, “The authors appear to be more interested in gratifying their resentment against the United States’ Middle East policy and Israel than in unfolding the facts.”
“It made nobody happy,” says Bassiouni. “The Israelis were unhappy with it. The [Arab] governments were unhappy with it. People on the right wing were unhappy with it.” He says he received hate mail and death threats. On a shelf in his office is a wooden hand with an extended middle finger that he received in the mail; painted on the base in Hebrew is the word shalom.
But he says he found the subtler criticisms more disturbing. “Many of my friends would come and say, ‘Oh, you really shouldn’t write books like this. This is going to be very bad for you if you ever want a government appointment.’ And there were so many occasions on which I received all sorts of stabs only because of my origin and because of the positions I took. It’s unfortunate but it’s a reality that if one is an Arab and a Muslim and takes positions in defense of Arab and Muslim causes, you immediately get attacked. And if you defend yourself you get called an anti-Semite or something.” He believes that for these reasons he was passed over for several jobs, including posts as a professor at an east-coast law school, as a legal adviser to the State Department during the Reagan administration, and as a prosecutor for the UN Yugoslavia War Crimes Tribunal.
But Bassiouni quickly points out that he encounters such prejudice mostly in “New York and eastern establishments” and that he has many friends and supporters in the Chicago Jewish community. “Maybe it was due to the fact that I’m a local boy,” he says. “When I’ve gone to speak at synagogues and meetings with Jewish audiences and represented the Palestinian perspective, I’ve always felt that I was received as a person of integrity. Yes, there was disagreement, but I never felt a personal attack or animus.”
The controversy doesn’t seem to have affected his access to government and diplomatic circles, though what influence he has within them isn’t always clear. In 1975 he collaborated with University of Chicago political science professor Morton Kaplan on a 14-point proposal for peace between Israel and Egypt, Jordan, Syria, and the Palestine Liberation Organization. Kaplan says he didn’t care about any controversy connected to Bassiouni–he cared about Bassiouni’s connection to Anwar Sadat.
A 1978 Chicago Tribune profile of Bassiouni and his first wife states that he “has known Anwar Sadat for 25 years and was instrumental in persuading the Egyptian president to come to Chicago during a 1975 visit to the United States.” Bassiouni says his mother befriended Sadat’s wife, Jihan, in the 1950s; they were both board members of the Egyptian Red Crescent, and most of the other women on the board looked down their noses at Jihan as an arriviste. In 1973 Bassiouni’s father asked a friend who’d become Sadat’s spokesperson to put in a good word on behalf of his son, who was still in exile, and Jihan Sadat apparently overheard. Bassiouni says, “The first thing I knew is that Sadat ordered a number of files from the intelligence service be burned–mine among them–and he sent me a personal letter inviting me back to Egypt.”
Bassiouni was invited to spend a day at Sadat’s country home, where he presented the president with a copy of Storm Over the Arab World. When he suggested that Sadat visit Chicago, he says, “the president laughed and said he had been watching episodes of The Untouchables and understood that Chicago was a ‘gangster city.’ And I said, ‘Nah, that’s long gone.'”
A year later Sadat came to the U.S. on a state visit, and he included a visit to Chicago. On the evening of his arrival, Mayor Richard J. Daley held a dinner for 700 in his honor at the Conrad Hilton at which the mayor made him an honorary citizen of the city. Bassiouni says that he and Sadat later retired to a suite in the Drake Hotel. “He smoked his pipe on one side, and I smoked my pipe on the other,” he says. “And that’s when he offered me to return to Egypt and to have a cabinet post or at least a cabinet-rank post on his staff.” But Bassiouni turned him down. “I didn’t need a job, I didn’t need to have my ego stroked. And I did not want to go back unless I knew I was going to be doing something useful. I think he wasn’t too sure–he wanted to test me and decide to use me. And I’m not the sort of guy who’s too good at being used by others. But we kept an ongoing relationship, and every time he came to the States I saw him, and every time I went to Egypt I saw him.”
The relationship allowed Bassiouni to present to Sadat his and Kaplan’s Middle East proposal, which he believes influenced the Camp David peace accords signed in 1978 by Sadat, Israeli prime minister Menachem Begin, and Jimmy Carter. “I sold the idea a bit through the Israeli side,” he says, “and then on the Arab side, particularly because of my connection with President Sadat. At the time President Ford was not too convinced of it, but during the presidential campaign a man by the name of Jimmy Carter was passing through town. I met him and gave him a copy, and he liked it. And when Cy Vance came in as secretary of state, he took it around and found that Sadat was willing to do it and the Israelis were willing to do it. He came back and said, ‘Why don’t we try it with the Egyptians and the Israelis?’ And that’s how Camp David came about.”
Kaplan, now retired, disagrees with this version of events. He says he’s always been opposed to the Camp David agreement and doesn’t believe the proposal had any impact on it. He agrees that the plan was shopped around to government officials and was taken quite seriously, but says the Israeli government, initially in favor of the plan’s general thrust, changed its mind and became so opposed to it that the Israeli consul general showed up at his door at 7 AM one morning urging him not to publish it. “Academic interjections into politics are often believed to be effective,” he says, “but they usually have very close to zero impact. If they had talked to me I would have told them not to do what they were doing. But, typical Washington, they foul everything up. If that plan had any influence on Camp David I disown it.”
Chicago lawyer Alex Seith was deputy chair of the Democratic Party’s foreign-affairs platform during the ’76 campaign and later Carter’s adviser on ambassadors. He remembers that the administration’s role at Camp David was mostly intermediary and had very little influence on the substance of the deal that was struck. “The ideas that shaped the outcome originated more in Cairo and Jerusalem. But given that Cherif had a relationship with Sadat, some of the ideas that came out of Cairo could well be his. I don’t know.” A request to interview Carter, who has written an introduction to one of Bassiouni’s books, was denied.
Bassiouni and Kaplan’s proposal and the Camp David peace agreement aren’t similar in structure or language. But both contain numerous provisions that are broadly similar in substance, in that they call for mutual respect among states for national sovereignty, territorial integrity, and shared security arrangements. But Bassiouni and Kaplan also bluntly called for the prompt establishment of a Palestinian state on the West Bank and in the Gaza Strip; the Camp David agreement called for a complicated transitional process that promised eventual autonomy but never mentioned an independent state. And Bassiouni and Kaplan called for restitution for Arab and Jewish refugees who’d lost property; Camp David limply allowed for “the mutual settlement of all financial claims.”
Bassiouni says that he played another, personal role in Camp David. “President Sadat asked me to be an adviser to him on the matter,” he says. “I did not go to Camp David, however, because I was not an official member of the Egyptian delegation–and I didn’t want to be, because the U.S. was involved. I didn’t want to cross the line of ‘Am I an Egyptian or an American?’ I was in Washington, and as I usually do with these things, I was at a hotel paying my own expenses. Every day I would go to the embassy, and whenever they asked for questions or background I would provide it.” Hanging on the wall of Bassiouni’s office is an autographed photo of Sadat, along with a shot of the Camp David signing ceremony bearing the note “Best wishes to Cherif Bassiouni, Jimmy Carter.”
Marvin Zonis, a political science professor at the University of Chicago who’s known Bassiouni since the 70s, says, “He’s one of these classic insider guys who’s always somewhat mysterious. He’s always working on a vast number of things, and it’s never quite clear just how central he is to them. I think in some ways that suits Cherif’s temperament just brilliantly, because it gives him the opportunity to be involved and have influence without necessarily having to spend all his time on the enterprise. I would say that is his principal characteristic–it’s never quite clear. He doesn’t act like an academic. He acts like a diplomat. And the essence of a diplomat is subtlety, ambiguity, and mystery, in the sense of never going quite public with what you are because you make it more difficult. Cherif is a fascinating character because he plays the two roles simultaneously. Just where did that Kaplan initiative of his go? How important was it? How often has he met with Israeli officials, and what sort of contribution did he make to a variety of Middle Eastern diplomatic initiatives? It’s an endless set of questions people ask about Cherif’s involvement.”
Bassiouni’s ability to juggle several projects at once is matched by his ability to be involved in politically delicate projects that would seem to undercut his efforts elsewhere. Since 1995 he and Barry Kellman have organized a number of “confidential” meetings among Middle Eastern nations, including Israel, on arms control, though Bassiouni doesn’t want to talk about them, saying the discussions are too sensitive. Yet in 1997 he also represented Dr. Mousa Mohammed Abu Marzook, the Hamas leader who’d been arrested two years earlier at Kennedy International Airport when an immigration official noticed that his name was on a terrorist watch list. From the beginning it was clear that there was very little evidence linking Abu Marzook to terrorist acts carried out by Hamas’s military wing. In fact, he’d had frequent contacts with U.S. government agencies and seemed to be the moderate, politically accessible public face of Hamas. But Israel wanted him. “We strategized, and I knew that there was absolutely no basis for prosecution in Israel,” says Bassiouni. Abu Marzook was jailed while he fought extradition, but a year and a half later Israeli officials, deciding they couldn’t afford to pursue the case against him in the midst of peace talks, dropped the charges.
Over the years Bassiouni, who describes himself as his department’s 300-pound gorilla, has brought a lot of attention to DePaul, but most of it has come since the school agreed to set up the International Human Rights Law Institute in 1990. Public-interest lawyer Doug Cassel had approached DePaul hoping to set up a center to do human-rights work, and Bassiouni and law school dean John Roberts had been discussing a similar idea that focused more on international criminal law. Money was raised, titles were bestowed, and ambitious programs were undertaken. As executive director, Cassel focused on projects in Latin America, serving as legal adviser to a UN truth commission in El Salvador and running training programs for Latin American lawyers and judges. As president, Bassiouni worked on some exchange and training programs for North African jurists.
Then on October 6, 1992, the UN Security Council, no longer able to ignore reports of atrocities in the Balkans, adopted Resolution 780, calling for Secretary-General Boutros Boutros-Ghali to nominate members for a commission to investigate and collect evidence on “grave breaches of the Geneva Conventions and other violations of humanitarian law” in the former Yugoslavia. Bassiouni, who’d written more on the subject of international criminal law than anyone in the world, was one of five people appointed.
It shouldn’t have been a surprise that the 780 Commission, as it became known, had problems. During Security Council discussions Russia had been opposed to a body that was likely to find the Serbs–traditional allies–responsible for most of the atrocities. France and particularly Great Britain, which had troops on the ground in the UN peacekeeping mission, believed that the best way to stop the atrocities was to encourage the Serbs, Croats, and Muslims to negotiate, and they feared that if leaders were accused of war crimes it would imperil the peace talks moderated by David Owen and Cyrus Vance. Michael Scharf, the U.S. State Department lawyer who drafted Resolution 780, now a law professor, says, “There was a big debate on the wording of my initial resolution, because we tried to give the 780 Commission the ability to undertake investigations and Russia, Britain, and France didn’t want that. We sort of got snookered, because ultimately they caved in–but they never gave it the money to undertake investigations. That’s a pretty typical British ploy–you have the authority without the ability.”
At the first meeting in Geneva in November 1992 Bassiouni learned that the commission had been given a skeletal staff and an office but no money to do investigations. Members were expected to work from their home offices, evaluating reports solicited from governments and nongovernmental organizations. He proposed setting up a documentation center with a computerized database to collect and organize the information. Since there was neither space nor money in Geneva, DePaul donated half of a floor in the law school, and Bassiouni solicited funding for the project. “Cherif single-handedly approached the MacArthur Foundation and Soros Foundation and secured more than a million dollars to fund the database and later the publication of its data,” says Cassel. “He deserves a great deal of credit for doing the UN’s job for it.”
The effort wasn’t much appreciated by the staff of the UN’s Office of Legal Affairs, which oversaw the commission’s work and didn’t want the project conducted outside the security of UN headquarters. Ralph Zacklin, the OLA’s legal adviser at the time, says, “I was uneasy then and I remain uneasy at the notion of often highly confidential information relating to these crimes being housed in a facility over which the UN had no control.” To allay such concerns, Bassiouni added security measures at DePaul, and then a mostly volunteer staff of 20 to 25 attorneys, law students, data analysts, programmers, and documentarians began organizing the avalanche of information.
Bassiouni says that when commission members held their second Geneva meeting that December, it became apparent that the OLA was trying to hinder their mission. Minutes from the meeting show that it disintegrated early on, when chairman Frits Kalshoven implied that Bassiouni was profiting from the database operation. “I blew my stack,” says Bassiouni. “‘How dare you say something like that?’ I said. I’m yelling at the top of my lungs and pounding the table, and I’m saying, ‘You better withdraw that and apologize immediately or else.’ He immediately suspended the meeting and left the room. I stormed after him and said, ‘What the hell is going on?'” According to Bassiouni, an OLA adviser had told Kalshoven that if the database were housed in Chicago Bassiouni could bill the UN for extra hours.
Bassiouni says that Kalshoven apologized, and the meeting resumed. Kalshoven, a retired professor of international humanitarian law at the University of Leiden in the Netherlands, refused to comment on the 780 Commission or Bassiouni. But Bill Fenrick, a former Canadian military lawyer who also worked on the commission, characterized the dispute as nothing more than a personality conflict. “Frits was unhappy with the idea of the database being controlled by DePaul,” he says, “and I think that was the point. Certainly there was a question of control and a strong personality dispute between the two of them. I suspect to some degree both of them regret what happened.”
Soon afterward, Bassiouni wrote a letter to Boutros-Ghali saying that Kalshoven didn’t deserve to be chairman. “I said, ‘I’m not advocating that you remove him. But whether you appoint me or somebody else as vice chairman to save face, somebody else has got to run it–because this guy isn’t going anywhere.’ The reason I said that was because Bill Fenrick and I wanted to go into the field, and he refused to let us go. Basically he was not a very courageous man–he just didn’t want to have other members of the commission going without him, and he didn’t want to go.”
Nevertheless, that April the three went together on the commission’s first field mission to the former Yugoslavia, though Kalshoven didn’t make it as far as Zagreb and Sarajevo, where Serbs were shelling the city and sniping at civilians. Bassiouni and Fenrick interviewed two teenage girls from the town of Brzcko who’d been held captive and raped by militiamen for eight months until their families paid a ransom. “I looked into the eyes of these two girls, and it was like looking into the end of the world,” says Bassiouni, who would personally make three more trips. “You’re helpless because there’s nothing you can do for them now, and there was nothing you could do for them at the time. Yet they look at you in one of two ways: one, they say, ‘You’re UN. Why weren’t you there to help us?’ Then they look at you and say, ‘Are you going to bring these people to justice?'”
Bassiouni says the commission was continually hampered by funding delays and Byzantine rules. In August 1993 Kalshoven took a medical leave and eventually resigned, complaining about the lack of support given the commission by the UN. Another commissioner, Norwegian Torkel Opsahl, was appointed chairman, but less than a month later, while working at his desk in Geneva, he suffered a heart attack and died. Bassiouni then took over, moving into an apartment in Geneva and flying back to Chicago once a month to oversee work on the database. “I was viewing the reports, checking the documentation, answering questions,” he says. “I would come to work at nine in the morning, and I would be here until midnight almost every day, seven days a week. Then I would fly back to Geneva and have the same sort of rhythm there–trying to put teams together, fighting the bureaucracy, raising money.” He also began to complain to the media about the UN’s lack of support.
In the fall of 1993 the Security Council voted on who would become the prosecutor for the Yugoslavia War Crimes Tribunal it had set up in April, the person many hoped would take over the investigation after the commission’s mandate ran out in July 1994. Bassiouni had been nominated, but after a contentious debate in the Security Council he lost, largely because of British opposition.
By December Bassiouni was preparing a team of female attorneys, mental-health specialists, and interpreters to conduct interviews with victims of and witnesses to sexual assault. Fenrick was planning a mass-grave exhumation outside the Croatian city of Vukovar, where Serb forces had allegedly massacred more than 200 sick and wounded Croats. Both investigations were likely to provide concrete proof of Serb culpability–significant evidence already indicated that sexual assault had been used systematically to persuade non-Serb civilians to abandon disputed territory, one part of the policy known as ethnic cleansing. But on December 13 Bassiouni got a letter from the head of the OLA terminating the commission three months early, forcing it to abandon both investigations.
Asked why the commission was disbanded early, Michael Scharf, who says Bassiouni gave regular briefings to State Department officials throughout his time on the 780 Commission, answers, “[The OLA’s] theory was that once the prosecutor’s office was up and running there was no need for the 780 Commission. And the commission’s theory was, ‘Look, we’re in the middle of this huge rape investigation. At least let us finish that.’ The question is, did they thwart Cherif because of their incompetence or because they saw his agenda as interfering with their agenda? That’s never been clear, but I think it’s a combination of the two.”
Bassiouni’s take is much more sinister. He says that no official reason was ever given for the early termination of the commission and besides, the OLA had no authority to end it. The major powers on the Security Council didn’t want to take responsibility for such an unpopular decision, he says, so they foisted it off on the UN bureaucracy. “From the beginning I said I was not interested in going after the little soldier who commits the individual crime. I was after building a case against the leaders who make the decisions. So I was going to establish that there was ethnic cleansing as a policy, that there was systematic rape as a policy, that there was destruction of cultural property as a policy, that the destruction of Sarajevo was a systematic process. What I didn’t realize was that this was precisely what the British, and to some extent the French and Russians, did not want. I can understand that the least thing in the world that they wanted was someone who was going to screw up their negotiations. But I thought, they’ve got their work to do. Let them do it. I’ve got my work to do. But that was not the political reality, and that’s why I did not get any support for what I was doing.”
Asked if there was a deliberate attempt to hinder the 780 Commission’s work in order to further peace negotiations, the OLA’s Ralph Zacklin says, “I don’t know why that story got around. The situation in Bosnia was evolving very rapidly on many different fronts. There were many different organs of the UN involved, and they were all working toward their own mandate. It might be that on some occasions some of these mandates crossed each other, but certainly there was no conspiracy, no attempts being made to thwart the 780 Commission.”
Scharf believes that at least some of the problems the commission had were the result of personality conflicts. “I’ve worked with Zacklin on a number of issues,” he says. “He’s just one of these guys who is just overly cautious, very legalistic, and totally uncreative. So at least half of these obstacles I think were based on Ralph Zacklin being Ralph Zacklin–and Bassiouni being so committed and energetic and creative and stubborn that he wouldn’t be worn down. Every time they put up a block, old Cherif was willing to do whatever it took to get over that hurdle. I think at each moment they were totally taken aback that he just didn’t give up.”
Bassiouni also rankled fellow commission members. “I didn’t always find him the easiest person to get along with,” says Bill Fenrick. “I suspect that view was shared by a number of my colleagues. On the other hand, his intentions were to accomplish something that was good and important. For all the squabbling, we can still look back and say we accomplished an amazing amount considering the resources we had. Certainly not entirely, but to a substantial extent, Cherif deserves credit.”
One month after its last meeting the commission submitted an 84-page final report to the secretary-general, a summary of its findings on ethnic cleansing, concentration camps, sexual assault, mass graves, destruction of cultural property, and the siege of Sarajevo. For the next eight months Bassiouni and his DePaul staff, who’d collected and cataloged more than 65,000 pages of documents and 300 hours of videotaped testimony and news footage, kept working without UN funding, compiling a 3,300-page, five-volume appendix supporting the conclusions in the final report. Published with $230,000 left over in the commission’s trust fund, it is the most complete record of the crimes committed in the war. This information was used by the Yugoslavia War Crimes Tribunal, which ran into some of the same bureaucratic walls the commission had, in preparing formal indictments against top Bosnian Serb leaders.
Bassiouni, who had quadruple-bypass heart surgery a year after the commission disbanded, believes that the Yugoslavia tribunal, along with the later Rwanda one, significantly advanced the cause of a permanent international criminal court. “The psychological barrier within the governmental arena was broken,” he says. “Governments could no longer say it was unthinkable, because two tribunals had been established. The question was whether they should be politicized instruments of the Security Council or should they be independent. It was also clear that the establishment of an ad hoc system such as in Yugoslavia and Rwanda was not the best way of dealing with things, because it always raises the question of legitimacy. I think the combination of events in Cambodia, Yugoslavia, and Rwanda clearly indicated to international civil society that we needed a permanent system of justice.”
Bassiouni had been waiting decades for such a sea change. When the UN General Assembly set up a committee to work on a statute for a permanent international criminal court in 1995, he became its vice chairman.
Bassiouni’s longtime friend Gerhard Mueller, who taught the first course on international criminal law in the U.S., at New York University in 1963, says that the time has come for the world to set up institutions that can better deal with international crimes. “While societies retain some of their power to make and enforce laws as they grow in size, they give a slice of their power to the next higher authority,” he says. “That has taken place ever since our ancestors lived in little villages. When the American colonies became independent, they all had their own criminal jurisdictions–it was their crimes which they punished. Then they realized they were all hanging together, and they had to give some jurisdiction to that higher authority called the union. So they gave the union the right to define federal crimes. What you are witnessing in the world right now is that we realized that we are all hanging together. While each country retains jurisdiction over its crimes, there are a few crimes that should be handled by the world community.”
To make an international system work, Bassiouni says, nations need to cooperate on defining international crimes, which could include everything from genocide to hijacking to drug trafficking, and on laying out procedures that would allow those crimes to be punished, which could entail extradition, transferring prisoners, or freezing assets. The world’s nations also need to establish a body with the authority to enforce these laws.
One of the earliest attempts to carry out criminal justice on an international scale came after World War I, when halfhearted efforts to prosecute thousands of Germans and Turks for crimes against humanity resulted in just 23 prosecutions and only 12 convictions. The military tribunals in Nuremberg and the Far East after World War II were more muscular attempts at international justice, and they reinforced the idea that crimes such as genocide are more important than any state’s sovereignty and should not be tolerated. But those were examples of victor’s justice–temporary and enforceable only because the defendants had been beaten. During the cold war mutual distrust between the superpowers prevented the kind of cooperation an international criminal court would have required. The example of Nuremberg wasn’t followed again until 1992, when the Yugoslavia War Crimes Tribunal was established.
Yet a group of scholars, government officials, and jurists had been laying the groundwork for a permanent independent court since 1924, when the International Association of Penal Law was founded in Paris. The IAPL created drafts of an international criminal code, which strongly influenced a 1937 treaty drawn up by the League of Nations to prevent terrorism. It provided for an international criminal court–the first time such an agreement had asked its signatories to place an international criminal law above their own. But then World War II began, ending any chance of its being implemented. In the early 50s the IAPL’s work led to the UN Draft Code of Offenses Against the Peace and Security of Mankind, which attempted to codify crimes of aggression, crimes against humanity, and war crimes. But it was the height of the cold war, and UN members couldn’t agree on a definition of aggression.
In the late 50s Mueller, whose book International Criminal Law was the first on the subject to be published in English, started an American section of the IAPL, whose membership had been dominated by Europeans. He admired a 1968 article on extradition that Bassiouni wrote, and he says that when the two later met at a conference, “he struck me as being of absolutely brilliant intelligence. It was immediately apparent, and I said, ‘By golly, I need this man.’ Over the span of a few years he convinced the establishment in our field that he really was the person to lead the drive.” Bassiouni, already familiar with the IAPL through his work with Graven, joined in 1968 and within six years was elected secretary-general. In 1989 he was elected president, a position he still holds.
In 1972 the IAPL founded the International Institute of Higher Studies in Criminal Sciences in Sicily, a public, not-for-profit research and education foundation. Bassiouni says the idea was to establish a politically neutral meeting point for intellectuals, activists, and jurists from across the ideological spectrum. Since then the institute has brought more than 14,000 people to conferences on international criminal law, human rights, and comparative law. Many of these meetings produced treaties and conventions that have been adopted by the UN, including treaties on prisoner transfer and extradition and the UN Convention on the Prevention and Suppression of Torture. “We’ve created an extraordinary haven of warmth and friendship between people,” Bassiouni says. “We all eat together. We all stay in the same hotel. We congregate in the evenings, and sometimes we all sing together. The friendships and bridges that have been established there have had a tremendous influence on the humanization of the law. When the Iron Curtain fell, most of the people who have become leaders and drafted the new constitutions and the avant-garde laws are people that came to the institute. We have had 1,900 jurists from Arab countries, and this has spearheaded the entire human-rights movement in the Arab world. To me it’s not so much the academic and intellectual content. It’s that you put together people of goodwill and create a bond of friendship, human understanding, and compassion between them. These are the people who do things. Because in the final analysis, it’s people who do things, not institutions.”
At these meetings Bassiouni would discuss the idea of an international court, continually refining ideas that would eventually lead to drafts for international laws. He also put his students to work on institute projects; Dan Derby, now a law professor, remembers his class working on sections of an international criminal code drafted at the institute in Sicily. In 1980 Derby helped Bassiouni after he was approached by the UN Commission on Human Rights to draft a statute for an international criminal court to punish the crime of apartheid–the first time the UN had looked at such a proposal since 1953. And, says Derby, “It was the first time that there was any attempt to combine a proposal to create a court with a particular offense.” But the draft was never used.
Then in 1989 Trinidad and Tobago, with the support of other Caribbean nations that were outgunned and overwhelmed by drug traffickers, proposed to the UN General Assembly that it deal with the problem through an international criminal court. The State Department’s Michael Scharf says he was “assigned to make the proposition go away,” and eventually the U.S. recommended that the issue be studied by the International Law Commission, a UN body known for taking decades to finish its projects.
The idea might have stalled there if not for the public outrage at atrocities in the former Yugoslavia. In late 1992, when Bassiouni was beginning his work with the 780 Commission, the General Assembly ordered the International Law Commission to draft a statute for a permanent court. The ILC relied on Bassiouni’s 1980 draft for the apartheid convention and two years later submitted a proposal. The UN then created another committee, with Bassiouni as vice chairman, that was to resolve differences between countries that were opposed to a court and those that supported it. It produced a report at the end of 1995, and the UN formed yet another committee, the UN Preparatory Committee on the Establishment of an International Criminal Court, which was to meet for 12 weeks over the next two years preparing a treaty to be considered for adoption at the Rome conference in the summer of ’98. The treaty was supposed to define crimes, penalties, procedures, funding, the organization of the court, its relationship with the UN–everything such a body would need to begin trials.
The committee quickly fell behind schedule. “The natural temptation was that people wanted to deal with the easy issues and did not want to deal with the major political issues,” says Bassiouni, who was elected vice chairman. “The result was that we spent an inordinate amount of time on procedural questions and far too little on substantive questions like what to do about triggering mechanisms and jurisdiction. The work of the PrepCom became an accumulation of proposals, and there were just so many that it was sort of like a supermarket where everyone who had a proposal put it on the shelf.” That’s why the text that went to the Rome conference was 173 pages long and riddled with unresolved problems, everything from multiple words (“immediate,” “impending,” and “imminent”) where the committee couldn’t agree on one to holes where there were major differences between states on issues, such as the independence and power of the court’s prosecutor.
The committee’s members did, however, set up a drafting committee for the conference that would review all passages of the treaty as they were agreed to, refining the wording and making it consistent in six languages. Bassiouni was nominated as chairman of that committee, but the U.S. opposed him, seeing him as too strong an advocate of an independent court; it wanted the ICC to be more tightly controlled by the Security Council. “We thought it would not be appropriate to have someone who has been so vocally at odds with U.S. policy as chairman, which requires a very objective approach,” says David Scheffer, the U.S. ambassador-at-large for war crimes. But Bassiouni, who would be officially representing the Egyptian delegation, was supported by a large group of countries called the “like-minded states.” The U.S. backed down, and Bassiouni was unanimously voted in. Scharf believes the opposition to Bassiouni suggests that the U.S.–ironically the major power pushing for the Yugoslavia and Rwanda tribunals–wanted the Rome conference to fail. “In a way they fear him,” says Scharf. “Not because he’s a bad drafter, but because he made it so much more likely that Rome would produce a successful draft. The U.S. would have loved to have a Security Council-created-and-controlled permanent ad hoc tribunal.”
At the Rome conference the numerous delegates broke into 12 groups, which broke into subgroups that were assigned a specific part of the statute. When the groups agreed on a section, it was forwarded to Bassiouni’s drafting committee. Working 12 to 14 hours a day, the committee processed more than 6,000 pieces of paper, which were eventually streamlined into an 88-page statute.
About a month before the conference Ambassador Scheffer had given a speech in Washington outlining the U.S. position on the court. He expressed the Clinton administration’s support for the ICC and said that the U.S. wanted to have sexual violence included as a war crime, women as major participants in the court, and witnesses adequately protected. But mostly he talked about what the U.S. didn’t want. He made it clear that the U.S. opposed the idea of a prosecutor who could bring cases against “anyone, anywhere, anytime, and under any circumstances.” Instead the U.S. wanted a referral system that allowed only treaty states or the Security Council to refer cases for investigation and prosecution. And it wanted a provision on “state consent,” so that states that hadn’t ratified the treaty had to agree to allow the court to prosecute its nationals. If rogue states refused to comply, Scheffer said, the court could rely on the Security Council’s muscle. The U.S. was also opposed to including aggression as a crime in the statute and to having the UN fund the court, which would sit in the Hague; it wanted treaty nations to pay. He also stated that the court “must not become a political forum in which to challenge controversial actions of responsible governments by targeting their military personnel for criminal investigation and prosecution.”
Bassiouni says that while some of these concerns were legitimate, others would only make the court impotent. “The U.S. delegation tried as much as possible to present their positions without appearing to represent absurd positions,” he says. “But everybody saw through it. If they said no person is going to be prosecuted unless that person’s government approves, what it really translates to is if you’re going to prosecute an American, then the U.S. government has to approve. If you say the Security Council has the right to stop a prosecution of a given case, that means that major powers will have a veto right.”
During the final days of the conference it became clear that no consensus would be reached on controversial issues such as definitions of crimes, jurisdiction, and the independence of the prosecutor. Canadian ambassador Philippe Kirsch proposed a last-ditch compromise in an effort to save the treaty, including a provision designed with the U.S. in mind, that allowed the Security Council to stop a prosecutor from taking a case for a year and another that allowed states to opt out of the treaty during a seven-year period if they don’t agree with allegations of war crimes made against their nationals.
The U.S. still wasn’t satisfied–and neither was anyone else. The army of nongovernmental-organization representatives who supported an independent court were outraged by the compromise and held press conferences denouncing it. But as the vote drew closer, the mood changed. “By midafternoon everyone had realized that this was take it or leave it,” says Bill Pace of the NGO Coalition for an International Criminal Court. “Many realized that there were aspects of this treaty that many of us never dreamed would go through.”
Right before the vote, India called for an amendment making the use of nuclear weapons a war crime, and the U.S. proposed that the country of origin of a suspect should have the right to decide whether the case should go forward. “That would mean you’d have to get a Pol Pot’s approval to come in and investigate him,” says Pace. “The U.S. had kind of a Jekyll and Hyde personality. One part of it was supporting the establishment of the ICC before the year 2000 and doing very conscientious work to try and get the informal meetings concluded and good language adopted. But the other part was supporting a number of positions that were extraordinarily destructive to achieving an effective and independent court.”
Both amendments were defeated. “That enormous room filled with thousands of people broke up in applause,” says Bassiouni. “People were crying, embracing one another. It was a genuine triumph of important values over politics.”
Then 120 countries voted to accept the treaty, which they were to take home for ratification; 21 countries abstained. There’s no official vote record, and memories of which 7 countries voted against it differ. But everyone remembers that among them were Israel, China, Iraq, and the U.S.
Bassiouni is a hero to many who work for the NGOs. “I don’t think anyone in the world is more responsible than Cherif for the development of a system of international criminal justice and for help in nurturing this monumental advance forward,” says Pace. “He was not only one of the most effective of the government delegates, but one of the most effective academic and NGO delegates–and those are often considered to be mutually exclusive categories.” Bassiouni is also seen as an independent operator, beholden to no one. “But sometimes governments did not appreciate the multiple hats he wore,” says Pace. “Some delegates complained that he behaved like he knew more than anyone about the issues. He probably did, but it made him more intolerant of the people and processes that you have to go through to get a diplomatic consensus.”
One week after the conference ended, Ambassador Scheffer reported back to the Senate Foreign Relations Committee. He argued that because the U.S. amendment giving states veto power over cases had been blocked, U.S. peacekeeping forces stationed within a treaty nation’s borders could be subject to the court’s jurisdiction even if the U.S. didn’t sign the treaty. He also complained that states that don’t sign can’t take advantage of the opt-out clause. And he denounced the independence of the prosecutor and the inclusion of aggression, terrorism, and drug trafficking as crimes when there was no agreement on their definitions. Scheffer now says, “There is simply no prospect of U.S. signature of this treaty unless some of those flaws are corrected.”
Scheffer also says that mistakes remain in the text because the compromise section was finished so late there wasn’t enough time to run it through Bassiouni’s drafting committee. “The document that was rammed through on the final day has a stream of serious technical mistakes in it,” he says. “I was impressed with how Professor Bassiouni conducted his duties in Rome, but I cannot imagine that he would have endorsed a procedure that in the final steps avoided the drafting committee.”
Bassiouni agrees that if the compromise had gone through his drafting committee, the members would have been able to iron out the ambiguities. But, he says, “establishing the institution was more important than removing all the obstacles that would prevent it from working effectively and independently. It was a concession to the evolutionary nature of legal institutions. If we had the luxury of time we might have worked out a reasonable compromise for the U.S. to join. So you get the language, you get the court, you get the U.S., you give people an element of comfort and satisfaction. Then it becomes easier to make changes.”
When Bassiouni explains the treaty, he makes it seem simple, elegant, and decidedly unthreatening. He says having the prosecutor initiate cases isn’t a threat to the U.S., since he must get the approval of a multinational three-judge panel before investigating and again before indicting. And that approval can be appealed to a separate five-judge panel. Moreover, the treaty allows national criminal-justice systems to prosecute their own citizens before the court would get involved. The judges decide whether a state is acting in good faith–and that decision too can be appealed.
“The U.S. argument was that they contribute a large number of soldiers to peacekeeping forces, and you might have an incident somewhere where a trigger-happy soldier kills somebody, and he would be brought before the court,” says Bassiouni. “That cannot happen under this statute, because the definition of war crimes speaks of serious war crimes committed on the basis of the policy of the state. Unless the Pentagon is willing to say that it is the policy of the U.S. military to commit these violations, then it does not apply. You have to ask the question, if that concern is not really viable, why is it being registered? I assume it’s because of political reasons–people who do not want a multilateral system of justice, who are rejecting the idea on a dogmatic basis, are simply looking for reasons to justify themselves.” He believes that the Clinton administration, once a vocal supporter of the court, has changed its position to accord with what Senator Jesse Helms and the Senate Foreign Relations Committee will accept–and Helms has vowed that no international criminal court treaty will ever make it through his committee.
But Bassiouni has been working to get this court for almost 35 years, and he’s not about to let it slip away just because the U.S. is against him. He’s now working with the Preparatory Commission, which was set up at the conference to clarify court procedures and definitions of crimes and to draft an agreement linking the court and the UN. It began meeting last month in New York.
Bassiouni says he will continue “using my good offices to have the U.S. position understood by countries supporting the court and making sure that bridges are maintained between them.” Even Scheffer has been impressed with Bassiouni’s attempt to do that. “I think Professor Bassiouni is demonstrating a considerable degree of fairness in how to deal with the U.S. dilemma with this treaty,” he says. “He is seeking to explore ways to enhance its universal acceptance.”
But Bassiouni knows that the U.S. isn’t the only obstacle. A minimum of 60 countries must ratify the treaty before it can go into effect, and so far only Senegal has done so.
Bassiouni often refers to a picture of Don Quixote hanging on his wall that a friend gave him because “I’m always tilting at windmills.” Asked if his experiences with bureaucratic and political agendas have made him cynical about the future of the ICC, he says, “Nothing is going to prevent those kind of political games. Human nature being what it is, there are those who will always seek power and those who will always abuse it. I’m not cynical, because I believe that as human beings we are condemned to be optimistic. Our lives depend upon being optimistic.”
If anything, Bassiouni’s experiences have hardened his resolve. The 780 Commission, he says, “broke the barriers between the mind and the heart. All of us tend to separate our thinking process from our feeling process. And now I think with my heart and feel with my head. They have become one. I don’t rationalize things. I think there are things that are acceptable and things that are unacceptable. Period.”
Art accompanying story in printed newspaper (not available in this archive): Cherif Bassiouni cover photo by Lloyd DeGrane; Bassiouini with Anwar Sadat, 1974 uncredited photo;.