Law School alumnus, judge speaks on world criminal court's importance

By Linda Myers

Cornell Law School alumnus Sang-hyun Song, J.S.D. '70, was elected this year to a three-year term as one of 18 judges of the International Criminal Court (ICC) in The Hague, Netherlands. He spoke on "A New Court for a New World: The International Criminal Court" to Law School students, faculty and staff April 3 in Myron Taylor Hall's Berger Atrium.

Song

"The International Criminal Court is the most important human rights legislation that the world has seen in a half century and will define a new era in the global rule of law," said Song.

The court has jurisdiction to prosecute perpetrators of genocide, crimes against humanity, war crimes, aggression and serious violations of human rights.

The idea for a court where those committing such crimes might be called to account was first proposed in 1872 by a leader of the Red Cross, following the excesses of the Franco-Prussian war, Song related. While the 1948 Geneva Convention and the Nuremberg trials in Germany following World War II helped pave the way, the move to create a standing court for international crimes was first introduced in the form of a resolution in the United Nations General Assembly at the end of the 1980s, spurred in part by an increase in international peacekeeping demands, said Song.

South Korea was a participant in the committee that came up with the final draft of the multilateral treaty, known as the Rome Statute, that formally created the ICC in 1998, he noted. Today the treaty, which sets forth the rights and obligations of states in investigating and prosecuting international crimes, has been ratified by 89 nations. Unfortunately the United States is not among them, said Song, who predicted that the court's ultimate success depends heavily on U.S. involvement.

He related how, after the Clinton administration signed the Rome Statute, the administration of President George W. Bush "unsigned" it last year "out of fear that it would be used for politically motivated prosecutions" of U.S. leaders. Bush called, instead, for a "nonsurrender" agreement allowing bilateral impunity and other reciprocal agreements between nations, promising for example not to bring claims against one another's nationals.

"Many experts contend that such agreements violate articles in the Rome Statute," said Song.

Nevertheless, under pressure from the United States, 22 countries have signed a document supporting the U.S. stance, including some nations that had already signed the Rome Statute.

Song described the selection process for the 18 ICC judges, who were chosen from a pool from 43 nations and selected through 33 rounds of balloting using a system weighted to include a balanced representation of qualified international law experts, female and male, from nations large and small. This April the United Nations will elect a prosecutor, who is expected to begin ICC duties in The Hague by the end of June.

Song also outlined some of the Rome Statute's provisions, notably that individual nations will be responsible for the arrest and surrender of citizens charged by the court with heinous international crimes, following referrals to the court from the U.N. Security Council, which Song called "the most important entity for the ICC." In the case of less serious crimes with international dimensions, however, nations' domestic laws granting amnesty to perpetrators and other exceptions would apply.

Most important, heinous crimes of omission as well as commission are viewed by the ICC as chargeable offenses, said Song. There is no statute of limitations for either, but there also is no retroactive application of the law, which applies only to crimes committed after July 1, 2002.

While the court clearly will have to rule on cases involving horrible offenses, turning written law "into action" will result in a more just world in the long run, said Song.

Song was introduced by John Barceló, the W.N. Cromwell Professor of International and Comparative Law at the Law School, who joined the faculty in the fall of 1969, when Song was doing his doctoral thesis here on admiralty law. A professor of law at Seoul National University in Korea and former dean of its law school, Song holds a diploma in comparative legal studies from Cambridge University and an LL.M. from Tulane Law School. He is the author of leading texts in admiralty law and civil procedure and has expertise in international arbitration and intellectual property law. He is a visiting professor at Harvard Law School this year.