Earlier this month, Shehzad Charania visited Judge Theodor Meron in The Hague. They spoke of Meron’s life as a legal advisor, diplomat, and as one of the most influential jurists in the history of international criminal justice. The following is Shehzad’s interview with Meron. His previous interviews with key figures in the world of international criminal law can be found here.
In early July, I paid a visit to President Judge Theodor Meron at his office in The Hague. I had gotten to know him well over the last three years, and wanted to take the opportunity to record his fascinating career. Judge Meron is currently the President of the UN Mechanism for International Criminal Tribunals (UNMICT), Judge at the International Criminal Tribunal for the former Yugoslavia (ICTY), and a visiting professor at Oxford University. He has, amongst other roles, been the Legal Adviser to the Israeli Ministry of Foreign Affairs, Israeli Ambassador to Canada, Permanent Representative to the Israeli Mission at the United Nations in Geneva, Counselor on International Law at the US State Department, a Professor at NYU and the Geneva Graduate Institute of International Studies, Visiting Professor at Harvard and Berkeley, and editor in chief of the American Journal of International Law. He is also a leading scholar of Shakespeare and war.
I began by asking Meron about his childhood growing up in a labour camp in Poland. “Surviving in ghettos, hiding in lofts, losing most of my family and spending several years in a forced labour camp is not something I would wish for any child”, he told me. He emerged from the war with a yearning for school and “normality”. Education soon became an obsession. The impact of the war led him into international law, in particular the fields which held the promise of reducing the risk of the atrocities, violence and chaos he had experienced during his childhood.
Meron’s first senior role came when he was appointed Legal Adviser to the Israeli Ministry of Foreign Affairs, replacing Professor Shabtai Rosenne. In 2006, an article by Gershom Gorenberg in the New York Times revealed an opinion Meron had written in 1967, in the aftermath of Six-Day War after the Israelis had captured the West Bank and Golan Heights. In a memo marked “Top Secret”, Meron concluded that “civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention”. A year later, Meron wrote a further opinion, noting that demolitions of houses and deportations of Arabs suspected of subversive activities would violate the Fourth Geneva Convention, and may constitute collective punishment.
“My concern in both opinions”, argues Meron, “was not only ensuring respect for humanitarian law but also for human rights”. He was particularly worried about the need “not to change the demographic and cultural character of the occupied territories”. But what about the reaction he had received to those opinions at the time? There were no negative repercussions, he said. “I think those who read them understood that taking the positions was for me a question of legal principle, not of politics”. He is clearly proud of what he had written, and that he had had “the guts” to say what be believed.
Meron worked at the Israeli Foreign Ministry until the mid-1970s. In 1977, he returned to New York, where a decade earlier he had served at the Israeli Mission to the United Nations, mostly on the Fifth Committee of the General Assembly. He later wrote a book based on his experience of the UN Secretariat. Following postings to Ottawa as Ambassador, and Geneva as Permanent Representative to the United Nations, Meron entered academia at NYU Law School, where he would remain for two decades. During that time, he became a US citizen. It was his adopted country which would ask him to join the US Delegation to travel to Rome in 1998 to negotiate the ICC statute.
It was an “extraordinary experience”, says Meron. A “heady, exciting time, with long days and even longer nights”. But it was also a challenging period for the US delegation. While the members of the delegation were sympathetic to the idea of international criminal justice, and the establishment of the ICC in principle, there was some trepidation and even fear of the court in Washington. One of the US Senators most opposed to the idea of the ICC was Jesse Helms. Members of his office were in Rome closely observing the negotiations and, in particular, what the US delegation said and did. But while the career diplomats had to be cautious, Meron as an academic member of the delegation was not under the same constraints that applied to those from the State Department or the Department of Justice. It meant that he was heavily involved in drafting what became Article 7 of the Rome Statute on Crimes against Humanity, as well as other key provisions. He, like others on the delegation, believed in the ICC project, and genuinely felt that they were “changing the world for the better”.
Meron is clearly passionate about the International Criminal Court. “I hope State cooperation will grow to allow the ICC to meet its full potential”, he told me. This included not only cooperation and compliance with arrest warrants, but also bringing national legislation into full conformity with the Rome Statute, thus making complementarity an “effective and vibrant reality”. Without national prosecutions, and given the ICC’s limited capacity, the ‘end of impunity’ would be a “hollow term”, he argued. For political reasons, in particular the lack of universality, and the ICC’s limited capacity, this also meant that resort to additional tribunals – ad hoc, regional or hybrid – may be “inevitable”. But we should see all the tribunals as serving the same goal of ending impunity, “not as competing with each other”.
Following a nomination by the US Government, Meron was elected as Judge of the ICTY in 2001. He has held the position of the Tribunal’s President four times. But the ICTY, and Meron personally, experienced a difficult time following the decisions of the Appeals Chamber, over which he presided, first to acquit in November 2012 Ante Gotovina and Mladen Markac, in relation to Operation Storm, and then Momčilo Perišić in February 2013. “The personal attacks against me triggered the hardest period in my life”, he said candidly when I asked whether he had been stung by the criticism. He did not expect the reaction, in particular the extreme, personal nature of it. The idea that he would be susceptible, for example, to Israeli pressure, as some commentators and even a fellow Judge had suggested, was “ludicrous” considering his history at the Israeli Foreign Ministry. “I wish I had grown a thicker skin”, he said. He admitted that he “asked himself questions, perhaps inevitably” about the correctness of his decision. It is part of his personality to reflect on the past, even more so when his positions have generated such controversy. But he was clear – and proud – of the fact that he had acted “according to legal principle, and not to court popularity”. International justice would fail, he said, if Judges were to convict, or uphold convictions, without an adequate evidentiary basis. Meron was clearly gratified when a few months later, he was reelected by his fellow Judges as ICTY President; and was vindicated with regards to the Gotovina case by the International Court of Justice’s 2015 decision in the Croatia v Serbia Genocide Convention case.
At the time, the ICTY received a lot of criticism from victims’ groups. I asked Meron how he saw the role of international justice in relation to reconciliation. It was clearly a consideration of the ICC Prosecutor Fatou Bensouda. For his part, Meron was clear that he had sympathy with the suffering and pain of victims. But the primary mission of Judges, perhaps unlike for prosecutors, was “to convict only when the law and the evidence established guilt beyond reasonable doubt”. It was true, he says, that through accountability and justice, international courts promoted peace and reconciliation, but judicial decisions – unlike other transitional justice mechanisms – could not be based on any external agenda, “even one as desirable as reconciliation”.
Despite controversy and personal tribulations, Meron is clear that his judicial career has been the most exciting, challenging, and rewarding part of his professional life. His judgeship has allowed him to put into practice his commitment to accountability, law, justice, due process, human rights and humanitarian law. He accepted he was “terribly fortunate” in becoming an international Judge at the age of 71. At the same time, however, he did not consider age a relevant factor for the continuation of his work, both as an ICTY Judge and the President of the UNMICT, to which the UN Secretary General had earlier this year reappointed him for a second term. Work is a “passion, not a chore”, noting that he does not need the money as he could live on his academic and judicial pensions. His work at UNMICT is only just beginning. It was a “special mission”, building a “new, lean, efficient and economic model of international tribunals, while continuing to safeguard fair trial rights”.
And Meron is still fully engaged in the academic world. It is clearly a matter of pride for him that in 2014 Oxford University invited him to create and teach its first course in international criminal law. He continues to lecture there, donating his salary in full to an internship fund for budding international criminal lawyers.
At 86, Meron’s energy, enthusiasm and drive remain unabated