Tracing Cherif Bassiouni's Tryst With International Law

Mohammed Cherif Bassiouni, international criminal law’s most prolific exponent, passed away on September 25 at the age of 79.

Cherif Bassiouni at the press conference of the commission of inquiry into human rights violation in Libya, April 8, 2011. Credit: UN

Mohammed Cherif Bassiouni, international criminal law’s most prolific exponent is no more. His death on September 25, 2017, at the age of 79 comes at a time when his cherished philosophy of universal reason and moral supremacy is under threat from global forces of illiberalism, dogmatism and unreason.

Hailed as the founding father of international criminal law, Bassiouni’s life was one spent in shaping, nurturing and embellishing the framework of accountability for mass atrocities. His efforts as the Chair of the Drafting Commission of the 1998 Diplomatic Conference lead to the adoption of the Rome Statute and the creation of the International Criminal Court (ICC). In 1992, as the Chair of the Commission of Experts to investigate atrocities in the former Yugoslavia (also known as the “780 Commission” after the United Nations Security Council Resolution), he personally undertook the task of exhuming mass graves and interacting with the victims of violence. His personal efforts in painstakingly and methodically documenting and collecting evidence richly contributed to the global demand for an international judicial mechanism. The efforts bore fruit with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993. Despite British diplomatic opposition to a judicial mechanism and disagreements over Bassiouni’s mandate under the 780 Commission, the Egyptian American’s efforts convinced the UN Security Council for a criminal trial of perpetrators, the first since Nuremberg and Tokyo, under the watchful eyes of the UN. This judicial framework laid the basis for the International Tribunal for Rwanda in 1994.

However, Bassiouni’s tryst with international law started much earlier. His contact with the International Association of Penal Law – a leading international organisation championing the cause of a permanent court of accountability for individual atrocities – as a student in the University of Geneva helped shape his outlook towards anti-impunity accountability. In later years, Bassiouni would head the association as president. From there on, he immigrated to the US, where he joined Indiana University, Indianapolis. In 1964, he was offered a teaching position at De Paul University College, Chicago – an affiliation he maintained till his death. His methodical, systematic and detailed driven approach to complex issues of international law made him a prolific writer of international repute within a short span. Over the course of a professional lifespan of five decades, Bassiouni was able to pen 72 edited books and an estimated 250 plus articles in numerous languages. This immense body of literature forms the intellectual corpus of International Criminal Law and covers virtually every conceivable point that is worth comprehending in the discipline. His first effort in publishing a commentary on international criminal law was in 1973 (it would take the world two decades to understand and accept the existence of this branch of international law!).

Bassiouni, however, was no armchair academician. His unique ability to blend theory with practice was legendary. The most sought after man for war crimes investigation, drafting of criminal codes, training of judges and post-war transitional justice, Bassiouni is believed to have held as many as 22 UN offices till his death. He was the most preferred transitional justice advisor of former US President Jimmy Carter’s administration which solicited his help in dealing with the tricky issues plaguing the Middle East. He engaged King Hussein of Jordan and former President of Egypt Anwar Sadat, apart from Israeli and American officials in pursuance of diplomatic efforts to secure peace. President Carter personally reviewed his policy papers which outlined options, approaches and strategies. These efforts finally contributed to the Camp David Accords, now universally acknowledged as a benchmark in peaceful dispute resolution. Anticipating an Iraqi trial for American diplomats taken hostage in Iran, President Carter personally invited Bassiouni to serve as legal counsel for the hostages. The 1984 Torture Convention was based on Bassiouni’s draft. The Convention, which outlawed torture in all its forms. is today hailed as creating a jus cogens prohibition against torture. Ironically, Bassiouni personally had to endure torture, face bullets and assassination attemtps, threats and intimidation all through his life in the fight against impunity.

A friend and foe of governments, hated, condemned, ridiculed, Bassiouni had to pay a price for his human rights advocacy often undertaken without the niceties of diplomatic protocol. His purposive and broad interpretation of the 780 Commission’s mandate annoyed the British UN bureaucracy. Bassiouni steadfastly believed that the emerging evidence of impunity should result in the creation of a judicial edifice to try perpetrators. This view did not go down well in many quarters. His efforts to hold the Serbian leadership accountable for atrocities in the former Yugoslavia displeased lobbies that thought otherwise. These misgivings cost Bassiouni the prosecutors position when the ICC was formed; with Britain, France and Russia vetoing out UN Secretary General Boutros Boutros – Ghali’s proposal to have Bassiouni as the Court’s first prosecutor. While an unfortunate fallout of diplomatic wrangles, the international community lost the opportunity to have the world’s leading expert in mass crime evidence collection and documentation to head the most sensitive office of the ICC. In 2004, the UN appointed him as an independent expert for human rights in Afganistan. True to the mandate of the office and his professional expertise in evidence collection, Bassiouni meticulously documented the human rights atrocities committed by the US armed forces, which unceremoniously let to the disbandment of the office at the behest of the US. However, before its dissolution, Bassiouni was able to secure the release of countless prisoner of wars (POW) and train hundreds of Afghan judges in an effort that contributed immensely to the transitional justice machinery of the war ravaged nation. His role in Iraq – overseeing a revamp of legal education in the country – lead to the development of a comprehensive strategic plan for criminal justice in the country, which was approved and presented to the parliament.

On the theoretical front, Bassiouni articulated a nuanced moralistic approach to anti-impunity initiatives. A firm believer in natural law, he held positive law to be subordinate to the universal moral law of nature. Employing the term “law of humanity”, Bassiouni’s approach to natural law was based on the premise that loss of life is the ultimate denial of human right and dignity. Believing that victims have an inherent and fundamental ‘right to accountability’, Bassiouni held that the same can only be effectively realised with criminal prosecution of wrong doers. While non-prosecutorial measures like truth commissions may serve a purpose, they cannot afford an alternative to prosecution mechanisms.

In an age where crystallised common sense which a jurist would call natural law is collapsing, Bassiouni and his efforts should be treated as call to restore the sanctity of moral universalism. Realpolitik must give way to moralism. That would be a great tribute to Bassiouni.

Abraham Joseph is a PhD Candidate in International Criminal Law at National Law School of India University (NLSIU), Bangalore and Assistant Professor, School of Law, Ansal University, Gurgaon. Views expressed are personal.