Saddened to read that Judge Hans-Peter Kaul, a pivotal member of the International Criminal Court’s founding generation, has passed away. The in memoriam notice at the ICC website reports that he died yesterday, as a result of the serious illness that earlier this month compelled his resignation after nearly a decade on the ICC bench.
That tenure continued service to the ICC which had begun in 1998, when Kaul, then a diplomat, led the German delegation at the Rome Conference. He recalled the climax of that conference in a 2012 guest post for IntLawGrrls:
After the decisive vote on the Rome Statute, our founding treaty, there is some kind of explosion, an enormous outpouring of emotions, of relief among those present, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who have frowningly watched the entire conference hug each other in a state of euphoria. And a German delegate, normally a level-headed man, jumps up and down like a rubber ball and keeps punching me in the ribs, completely breathless,
‘Herr Kaul, Herr Kaul, we’ve done it! We’re getting an international criminal court!’
Kaul was born 70 years ago this Friday, in Glashütte, near Germany’s border with what is now the Czech Republic. The year was 1943. World War II raged, and memories of his boyhood during that war and its aftermath–including the postwar trials at Nuremberg–never were far from his work on behalf of international criminal justice.
This was evident in his most significant ICC opinion, a dissent from a panel’s preliminary ruling in the Court’s ongoing case involving 2007-2008 post-election violence in Kenya. In a 19-page commentary labeled Dissenting Opinion of Judge Hans-Peter Kaul to Pre-Trial Chamber II’s “Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kipono Kosgey and Joshua Arap Sang” (15 March 2011), Kaul invoked the Nuremberg legacy to argue that only violence at a level of “state-like ‘organisation'” could constitute crimes against humanity. It is an argument that continues to generate academic debate.
Another link to Nuremberg may prove even more lasting. In recent years, Kaul was an impassioned and indefatigable advocate for make the crime of aggression punishable by the ICC. His German delegation had pushed successfully for the listing of that crime–a signature offense at Nuremberg–in Article 5 of the Rome Statute. (Prior posts here and here.) After the Assembly of States Parties adopted the 2010 Kampala amendments to activate the ICC’s crime of aggression jurisdiction, Kaul campaigned actively for ratification. Every time he and I crossed paths, at Chautauqua, The Hague, or elsewhere, Judge Kaul was quick to report on the status of that campaign–and to express particular pride when his native country and its linguistic neighbors deposited their instruments of ratification or accession.
With the ratification by Austria last Friday–the 16th anniversary of the adoption of the Rome Statute–the Kampala amendments have garnered half the 30 ratifications needed for entry into force. (Also required is another Assembly vote.) States that have joined to date are Andorra, Austria, Belgium, Botswana, Croatia, Cyprus, Estonia, Germany, Liechtenstein, Luxembourg, Samoa, Slovakia, Slovenia, Trinidad and Tobago, and Uruguay. Numerous other states, including many others in the North Atlantic Treaty Organization, are reported to be nearing joinder.
Kaul was crystal clear about the reason he pushed for these amendments: The child of war saw activation of crime of aggression jurisdiction as an essential step toward ending war altogether. In his IntLawGrrls post as in other writings and lectures, he explained:
War–this is the ultimate threat to all human values; war is sheer nihilism. It is the total negation of hope and justice. Experience shows that war, the injustice of war in itself, begets massive war crimes and crimes against humanity. In my nine years as a Judge of the ICC, I have seen that, as in the past century, a terrible law still seems to hold true: war, the ruthless readiness to use military force, to use military power for power politics, regularly begets massive and grievous crimes of all kinds.
In Kaul’s view, the prosecution of jus in bello violations is important, yet an incomplete, a symptomatic approach, unless it is accompanied by the prosecution for jus ad bellum violations. His own pithy words are a fitting epitaph:
War crimes, they are the excrement of war.