Walking the Road He
Paved ç A Tribute to
Antonio Cassese
The Hague Academy of International Law,
The Hague, 16 November 2011
Edited by Guido Acquaviva and Giulia Pinzauti*
President Sir David Baragwanath**
On behalf of Judge Antonio Cassese’s two tribunals ç the International
Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal
for Lebanon (STL) ç I welcome you to this tribute to Nino. He was our leader,
mentor, colleague, friend and brother, both professional and, in the case of another jurist, Judge Sabino Cassese of the Constitutional Court of Italy, in
blood. Our thoughts are with Nino’s wife, Sylvia, son Francesco, daughter
Teresa and other family members whom Judge Sabino Cassese represents today.
Nino is one of the most outstanding figures in the history of international
law. Nuremberg had brought to justice for the first time the political and military leaders of international crime. But until the ICTY there had never existed
*
Guido Acquaviva is Chef de Cabinet, Office of the President, Special Tribunal for Lebanon and
Co-chair, Editorial Committee of the Journal [[email protected]]; Giulia Pinzauti is Associate
Legal Officer, International Criminal Tribunal for the former Yugoslavia, a former student of
Professor Cassese and Member, Editorial Committee of the Journal. [[email protected]]
On 16 November 2011, in the company of his family, friends, colleagues and pupils, the
Special Tribunal for Lebanon organized an evening of tribute and reminiscences to honour
the many achievements and endeavours of Professor Cassese.While some of the speeches delivered on the occasion are available as webcasts on the Tribunal’s pages, we are pleased to offer
our readers an edited and annotated transcript of the entire evening in this Special Issue. In
doing so, we believe we follow in our founder’s footsteps. A passionate believer in the powers
of conversation, a few years ago Professor Cassese initiated a section of the Journal he called
Workshop, where he asked us to publish unembellished transcripts of question-and-answer sessions that followed seminar speeches at conferences organized by the Journal. He wished to
share with our readers, the heat, the humour and the straight-off-the-hip anecdote that occasionally and illuminatingly brings the impassive world of law ‘to life’ for its many practitioners
and students. We thank President Sir David Baragwanath and all the contributors to the meeting for allowing us to print their heartfelt, moving but incisive tributes to Professor Cassese,
and Guido Acquaviva and Giulia Pinzauti for editing and annotating this set of transcripts on
behalf of the Journal. The Editors.
** President, Special Tribunal for Lebanon.
............................................................................
Journal of International Criminal Justice 10 (2012), 1419^1447
doi:10.1093/jicj/mqs042
ß The Author (2012). Published by Oxford University Press. All rights reserved. Advance Access publication 13 October 2012
For Permissions, please email: [email protected]
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any wholly independent international criminal tribunal. As President of that
tribunal for six and a half years and later of the Special Tribunal; as jurist,
scholar, statesman, author, teacher, Nino’s contribution to removing impunity
from the planet is unequalled.
In a beautiful letter Sylvia reminded us of, and I quote:
John Keats’s concept of negative capability, the quality that, according to Keats, forms a Man
of Achievement (such as Shakespeare, master of tragedy but also of joy and humour).
Negative capability, according to this great poet, is ‘when a man is capable of being in
uncertainties, mysteries, doubts without any irritable reaching after fact and reason’. This
concept applies both to Nino’s work and to my own psychoanalytical work. In simple
words, it indicates the capacity to apprehend but not be overcome by the destructive or
negative aspects in the world or in oneself, to tolerate some inevitable pain and frustration
without losing a positive vision of the world and faith in positive change.
Ralph Riachi and I asked Sylvia how we should honour Nino. She asked us
not to spend time lauding him; her wish and that of her family is simply that
his work be carried on in the way he would have wanted.
We at the STL intend to honour his legacy by working fairly and expeditiously for the benefit of the Lebanese people on the basis of our mandate.
The purpose of this event is also to do just that, by setting out not a list of
Nino’s many awards and distinctions but the challenge he has set all of us.
That includes human rights and human dignity, for which he campaigned
indefatigably throughout his career. He spoke out passionately against injustice, impunity and inhumanity. He developed our corpus of human rights law,
international criminal law and international humanitarian law. He did not
flinch from tackling politically sensitive topics, such as terrorism and
self-determination. Yet his reputation was such that the great number of those
for whom he was a trusted advisor included nation states. Messages of support
from the Secretary-General of the United Nations and from state representatives are greatly appreciated by the family. So too is the presence of the
Secretary-General’s representative, Mr Mathias, and the Ambassadors and
other state representatives.
Because this event centres on the development of Nino’s legal heritage, our
diplomatic friends will appreciate it has been necessary to select as speakers
only five, each a preeminent figure in international law who is an expert in
one of Nino’s fields.
[:::]
I offer on your behalf an expression of thanks to the many people who have
worked so hard to make our tribute possible. They include the staff members
of the Special Tribunal for Lebanon for countless hours of careful preparation,
those who contributed to and arranged the marvellous physical exhibit you
can see in the anteroom1 and all who have given of their time and energy to organize this event for the man they admired and loved.
1 An exhibition dedicated to Antonio Cassese’s life and achievements organized on the occasion.
The slides are available on the STL website.
A Tribute to Antonio Cassese
1421
One of them was his, and our, Chef de Cabinet, Guido Acquaviva. He will
introduce our first speaker.
But before he does I announce that, in Nino’s honour, at the Special Tribunal
for Lebanon we will in future be sitting in the Antonio Cassese Courtroom.
Dr Guido Acquaviva
Once again, thank you for joining us in this event. This will not be easy for
many of us.
[:::]
Without further ado, I am honoured to invite the first of our distinguished
speakers to share with us not just a remembrance of Judge Cassese, but some
further reflections about his contribution to the field of international law [:::].
Judge Yusuf of the International Court of Justice is not just an accomplished
academic, but also a practitioner of international law with extensive experience in intergovernmental organizations as well as multilateral negotiations.
He is going to share some reflections about Antonio Cassese’s role in the development of the international law of the human rights of individuals and
peoples.
Your Excellency, you have the floor.
Judge Abdulqawi A. Yusuf**
An immense emptiness all around
on the fourth floor,
Nino is no more next door,
The silhouette of the judge
cycling in the park,
the lively exchanges,
the witty stories, the ready smile
Are all gone,
An irreplaceable friendship forever lost
A source of inspiration,
A sparring partner
will be sorely missed
with great pain and sorrow,
Though I take solace
That his work will give us all
A much better tomorrow.
** Judge, International Court of Justice.
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JICJ 10 (2012), 1419^1447
I hope you will forgive me for expressing with these lines my own and my family’s profound sadness at the loss of Nino. I could not help doing that. But, I
am quite sure that Nino would not have liked us to gather in a ceremony such
as this one just to express grief and sorrow at his passing on. He would have
found it boring. He would have felt more comfortable with the manner in
which many African societies celebrate the life of a beloved one who has
passed away. They use the occasion to celebrate the person’s life with song
and dance. He was not born in Africa, but he was born very close to it. It is
this geographic proximity to the South, together with his innate humanism,
that helped Nino develop a keen interest in Africa, and in the developing
world in general.
In view of the time at our disposal, I will only be able to refer to some snippets and some examples of Nino’s abundant work and extraordinary contributions in the area of human rights.
Let me begin with a general remark. I believe that we should all look back
with gratitude to Nino’s move, as he put it, from ‘paper life to real life’. No
doubt, Nino loved his scholarly work, and sometimes described himself as a
book-worm, spending endless hours in libraries and research and documentation centres. However, Nino as a person also had all this boundless energy,
this drive to do things and to go into action that neither the walls of libraries
and academic buildings, nor the act of writing, which he loved, could contain.
It was bound to spill over the ivory towers of academia, and we are all the
better off. I do not mean the community of international law scholars only,
but I mean humanity is better off, without fear of exaggeration, as a result of
Nino’s forays into this real life. And what a real life! It was a real life, which in
the domain of human rights involved pounding on the high metal gates of prisons (behind which torture and ill-treatment of prisoners were being practised),
or of psychiatric asylum buildings, where human beings, instead of being treated, were being abused and subjected to inhuman treatment.
He was profoundly marked by these experiences. One of the lessons he
learnt during this period in which he came face to face with evil was that, as
he aptly put it: ‘inhumanity is inextricably intertwined with our humanity; it
is indeed part of our humanity’.2 But this was no reason for complacency; it
was rather a call to arms for Nino, not the arms used for violence (for he
hated that, and devoted his life to working against state violence); but intellectual arms and scholarly and judicial activities to fight this evil. And I will give
you just a few examples of this fight and how, as I said, we are all better off
thanks to it.
First, we are all better off thanks to Nino’s fight for putting an end to involuntary or forced disappearances. In his book, Behind the Disappearances:
Argentina’s Dirty War against Human Rights and the United Nations, Ian Guest, a
British journalist, gives an account of how Nino brought up the reports on disappearances in Argentina before the UN Sub-Commission on Human Rights,
2 A. Cassese, ‘Soliloquy’, The Human Dimension of International Law: Selected Papers (Oxford
University Press, 2008), at lxvii.
A Tribute to Antonio Cassese
1423
and the pressures he was subjected to when the Sub-Commission adopted a
resolution at Nino’s behest, even though he considered the resolution rather
weak.3 The Sub-Commission expressed alarm at the disappearances, but even
such language was too much for the Argentine military authorities at
the time, and, according to Guest, Nino lost his re-election bid to the
Sub-Commission in 1978 due to their lobbying. Nino was not re-elected, but
his message got through. Thanks to the resolution which he spearheaded, the
UN General Assembly adopted for the first time in 1978 a resolution on
‘Disappeared Persons’, which invited states to put an end to forced disappearances, without mentioning Argentina.4
Two years later, in February 1980, the UN Human Rights Commission took
the historical step of establishing a Working Group on Forced or Involuntary
Disappearances to ‘examine questions relevant to enforced or involuntary disappearances’.5 Initially established for a period of one year, its mandate has
been subsequently renewed and the Working Group has published 25 annual
reports on forced or involuntary disappearances in countries around the world.
So, the small stream that was born out of an innocuous resolution, initiated
by Nino in the Sub-Commission, soon turned into a mighty river of international indignation and action against forced disappearances.
Second, we are all better off thanks to Nino’s fight for better prison conditions and for a better treatment of prisoners in Europe, a matter on which he
spent four years working as a member and chairman of the European
Council’s Committee for the Prevention of Torture, and on which he wrote innumerable reports and recommendations. Since then the UN Convention
against Torture was adopted, and the prohibition of torture has come to be
considered as a jus cogens norm at the international level. Nino’s awareness
raising undoubtedly played a role.
Nino often spoke about the inhumanity of solitary confinement; and one can
only welcome the recent call by the European Committee against Torture to
minimize the use of solitary confinement and to apply it only in exceptional
circumstances.6
Third, we are all better off thanks to Nino’s work and chairmanship of the
UN Commission of Inquiry on Darfur, Sudan, and the recommendations and
conclusions of that Commission. We are all aware of the follow-up to that
Commission’s recommendations at the International Criminal Court (ICC) here
in The Hague.
As a result of Nino’s commitment, drive and determination in all these cases,
human rights have found better protection and humanity’s search for dignity
and justice has advanced.
3 I. Guest, Behind the Disappearances: Argentina’s Dirty War against Human Rights and the United
Nations (University of Pennsylvania Press, 2000), at 116, 119, 127.
4 GA Res. 33/173, 20 December 1978.
5 Commission on Human Rights, Question of Missing and Disappeared Persons, Res. 20 (XXXVI), 29
February 1980.
6 Council of Europe, 21st General Report of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT), (1 August 2010-31 July 2011) (2011).
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The evil which he had to confront in all these instances jolted the mind of
the scholar and appears to have brought back to him the importance of a
maxim of Roman wisdom, which inspired him throughout his life. This
maxim is: ‘hominum causa omne jus constitutum est’ or ‘any rule of law is ultimately made on account of human beings’. Thanks to Nino’s loyalty to this
maxim, I dare say that international law, and the law of human rights, have
been greatly enriched by his doctrinal contributions.
To illustrate this proposition, let me very briefly refer to some examples of
Nino’s writings on human rights and on the interface between human and
people’s rights.
A. On Inhuman and Degrading Treatment and its Application to
Socio-Economic Rights
Nino was always concerned about the justiciability of socio-economic rights. In
an article he wrote in 1991, he called for the extension of the prohibition of inhuman and degrading treatment enshrined in Article 3 of the European
Convention on Human Rights [:::].7 He criticized the European Commission
on Human Rights for failing to utilize the opportunity presented in the case
of Francine van Volsem v. Belgium to extend Article 3 to such rights.8
Nino’s exhortation did not fall on deaf ears. In 1997, the European Court of
Human Rights, in D. v. United Kingdom, held that an HIV patient could not be
returned to a state of origin where medical treatment was inadequate.9 It extended Article 3 to cover conditions of impoverishment and social decay in
non-Convention states. The Court recognized that until then Article 3 had
only been applied in the context of civil and political rights. However, it found
that the Court must reserve to itself sufficient flexibility to address the application of Article 3 in other contexts which may arise.
B. On the Interface between Human and People’s Rights
For Nino, and I quote from his book on the right to self-determination:
Respect for or denial of human rights is in effect the acid test which indicates whether or
not a government is respecting the people’s right to internal self-determination. When the
rights and fundamental freedoms of members of a people are systematically denied, this
means that the right to self^determination of that people is also infringed.
From this point of view, internal political self-determination is the synthesis and the summa
of human rights.10
7 A. Cassese, ‘Can the Notion of Inhuman and Degrading Treatment Be Applied to
Socio-Economic Conditions?’ 2 European Journal of International Law (EJIL) (1991) 141.
8 Francine van Volsem v. Belgium, App. No. 14641/89, Report of 9 May 1990.
9 D. v. United Kingdom, Case No. 146/1996/767/964, 2 May 1997.
10 A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press, 1995),
at 298.
A Tribute to Antonio Cassese
1425
Forever the innovator and the revolutionary scholar, Nino already saw in
1995 the right to internal self-determination as a customary rule in statu nascendi. He warned, however, of the ‘stumbling blocks which lie in the way of
the birth of this emergent customary rule’.11 He attributed these stumbling
blocks mainly to the attitude taken by some third world countries which, in
his view, did not show ‘a convinced and consistent acceptance that national
government should be based on the consent of the governed, expressed at periodic, free and genuine elections’.12 It could perhaps be affirmed, a decade and
a half after Nino’s observations, that those stumbling blocks are on their way
to disappearing, if they have not already disappeared.
There is movement here also, and some of his ideas are coming to fruition.
Politically, we just have to watch CNN or Al-Jazeera, or read the daily newspapers to see how people in various parts of the world are fighting for internal
self-determination.
Legally, we may not yet be at a point where the existence of despotic
and tyrannical governments, not based on the freely expressed will of the
people, would be considered to constitute an infringement of the right of peoples to self-determination (as Nino would have wished); but we seem to be
gradually, but clearly, moving in that direction with the establishment by certain regional organizations such as the African Union and the Organization of
American States of standards and criteria whose violation is now bound to
give rise to economic and political sanctions or other measures against the
concerned unrepresentative government either at the regional or at the global
level.
C. On the Right to Life, the Infant Formula and Legal Formalism
Finally, let me refer to Nino’s concern about the practices used by multinational
corporations in the marketing of infant formula in developing countries, and
his outrage at a judgment rendered by a Swiss Court on the so-called ‘Nestle¤
Affair’ in 1976.13 Some of you may be familiar with a chapter of his book on
Human Rights in a Changing World, which he sarcastically entitled, ‘A
‘‘Contribution’’ by the West to the Struggle against Hunger: The Nestle¤
Affair’.14 Nino was outraged by the verdict given by a Swiss judge in this
affair. But he did not only express outrage. As usual, he analysed the judgment,
dissected it and demonstrated how, in his words, it amounted to a ‘mixture of
legal formalism and hypocritical moralism’.15 But, in addition to his powerful
defence of the right to life of infants in developing countries, it is his criticism
of judicial formalism, which characterized that Swiss judgment that I would
11
12
13
14
15
Ibid., at 307.
Ibid.
Bern Criminal Court (Judge Sollberger sitting as single judge), Judgment of 22 June 1976.
Reprinted in Cassese, The Human Dimension of International Law, supra note 2, at 387 ff.
Ibid., at 391.
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like to highlight here. And I would like to read to you what he said about that,
which, I must confess, has stuck in my mind, and continues to inspire my
work as a judge:
When complex human affairs with manifold political and social implications are brought
before the courts, a peculiar phenomenon not infrequently occurs: they become subsumed
and, as it were, absorbed into the aseptic, impassive world of the law; they are stripped of
their human dimension and translated into ‘legal facts’, that is, into facts with abstract,
timeless connotations, facts described in rigid technical terminology: offences, lawful acts,
powers, rights, obligations and so on. It is for the magistrate concerned to obstruct this process of rarefaction of life. He may do so either by ‘reading’ the laws with modern eyes and
a modern sensitivity or by inserting into the formal parameters offered by those laws the
real situation warts and all.16
Let us hope that these words will also inspire other members of the judicial
community in The Hague.
Nino may no longer be with us, but his legacy will continue to motivate us
all to strive for a better world where all human beings are treated with respect
and dignity.
Dr Guido Acquaviva
Judge Yusuf assisted us in starting to paint a picture, a picture not just of the
person we are commemorating, but also of his legacy. Undoubtedly, Nino was
a stimulating scholar, careful with the details and the nuances of the most
technical aspects of the law, but without ever losing the greater picture, and
actually striving to fill others with enthusiasm for the big picture.
We are beginning to see, therefore, the contours of a person who ç in the
recent words of UN Secretary-General Ban Ki-Moon ç was a true ‘giant’ of
international law.
Professor Gaeta is our next distinguished speaker. She is one of Nino’s most
accomplished ‘pupils’ (as he would call them), now herself a scholar. She will
undoubtedly share with us some of Nino’s enthusiasm, an enthusiasm ç it
has been said ç almost contagious and irresistible. [:::] Whether you agreed
or not with him, it did not really matter: he would get you first interested,
then engaged, finally ç often ç convinced.
Professor Gaeta, Paola, you have the floor.
16 Ibid., at 390.
A Tribute to Antonio Cassese
1427
Prof. Paola Gaeta**
In academia there are lawyers who study, research and teach their disciplines
without ever wondering what the origin of a rule or a legal institution is;
without ever wondering which political, sociological, economic and historical
factors have shaped the law as it stands; without ever wondering whether the
law ultimately is made for the sake of human beings. In academia there are
lawyers who never wonder how the law can be changed to attain this specific
goal.
These lawyers can be flawless in interpreting and applying the law as it is,
and they sometimes are. They build convincing and forceful legal theories, propound sound legal constructs, and their writings are paradigmatic examples
of crystal clear legal analysis. But, at the end of the day, their erudition stands
alone. Like an ivory tower in a desert.
Nino Cassese was not such a lawyer, and he did not want to be. He was
deeply convinced that the law is the product of the prevailing forces and
powers in societies and he further believed that the task of a lawyer is to
unveil those forces and powers. He was, therefore, naturally attracted to international law, a body of law that, given its rudimentary character, better reveals
the power game that models its rules. In particular, he was attracted to those
subjects that are most at the ‘vanishing point’ of international law: the law on
the use of force, the regulation of violence in armed conflict, the struggle of
peoples for self-determination and human rights.
When studying these matters, Nino was always attentive to other disciplines:
history, sociology, economics and international relations. He wanted to understand fully, he wanted to grasp the reality hidden behind the apparent neutrality of rules and legal institutions. However, in his endeavour, he was not only
driven by a desire to better understand and explain. In the end what he
wanted to achieve was a knowledge directed to change. He was convinced
that, by becoming aware of the forces that influence the law, lawyers can identify how to influence those forces, and propose a progressive interpretation of
the rules.
In sum, Nino believed that a lawyer should not simply be a notary; and he
was also suspicious about the purely positivistic approach to law, because he
was afraid that expertise in legal technicalities alone could easily be put at
the disposal of authoritarian ideologies and regimes. He used to say that for
him, a lawyer should be a stonecutter, who uses his legal implements in the
tiny fissures of existing law, and little by little shapes a different figure.
[:::]
When he was elected as a Judge and soon after, President of the first
International Criminal Tribunal ever created, the ICTY, he realized that a
** Professor of International Criminal Law, University of Geneva; Adjunct Professor, Graduate
Institute of International and Development Studies; Director of the Geneva Academy of
International Humanitarian Law and Human Rights; Member of the Board of Editors of this
Journal.
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JICJ 10 (2012), 1419^1447
golden and historic opportunity was being offered to him and those working
with him at the newly established institution. His solid and world renowned
scholarship as an international lawyer, coupled with the experience he had
acquired as the first President of the European Committee for the Prevention
of Torture, allowed Nino to assert his leadership within and outside the
Tribunal, and to take the necessary steps to launch, promote and consolidate
the judicial activity of the new Tribunal.
In his administrative responsibilities as President of the ICTY he was tireless.
In his judicial capacity, together with his fellow judges, he set up the foundations of the ICTY, both at the procedural and substantive levels. The Tadic¤ interlocutory decision on jurisdiction, issued in 1995, and to which he contributed
greatly, is certainly the landmark decision of the Tribunal. As is well known,
this decision extended the scope of application of certain rules of international
humanitarian law (IHL) to the neglected category of non-international armed
conflicts, and clarified the principle of individual criminal responsibility for
war crimes in these conflicts. All this: by having recourse to customary international law. This was an important achievement, also supported by the philosophical conviction that ç as the Appeals Chamber stated ç treatment that
is inhuman in an international armed conflict, and therefore prohibited, is no
less inhuman in a non-international armed conflict, and should therefore attract the same prohibition.
However, in my view, the methodological approach followed by the Appeals
Chamber is equally important, if not more important. With this decision, the
Appeals Chamber of the Tribunal showed that it was not afraid to have recourse to customary international law as the applicable law of the Tribunal in
criminal matters. It thus paved the way for the possible global legacy of all its
subsequent case law, in particular, on war crimes. Sure, the Appeals Chamber
could have taken a different approach. For instance, it could have confirmed
the position of the Trial Chamber, which considered that recourse to customary law was unnecessary to identify the subject matter jurisdiction of the
Tribunal when violations of IHL occurred in prima facie non-international
armed conflicts. For the Trial Chamber, the charges against Tadic¤ were covered
by the jurisdictional provision of the ICTY Statute on grave breaches of the
Geneva Conventions. In practice, it considered that this statutory provision
did not require that the Tribunal had first to classify the conflict as international to apply it, and this thanks to the determination of the Security
Council ç which had adopted the Statute under Chapter VII. This approach,
however, would have meant that the Tribunal’s case law on war crimes would
not have had a general impact on non-international armed conflicts, and
would have been ultimately limited to the former Yugoslavia. But the Appeals
Chamber, as is well known, decided differently and relied on custom to establish the jurisdiction of the Tribunal on war crimes committed in
non-international armed conflicts.
Since Tadic¤ , reliance upon customary international law has become a constant feature of the Tribunal’s case law; and this case law has catalysed a revival of the importance of custom in sensitive fields such as IHL, human
A Tribute to Antonio Cassese
1429
rights law and international criminal law (ICL) itself. Perhaps recourse to customary international law by the Tribunal should have been more cautious in
certain decisions and judgments, and certainly it is not flawless. Nonetheless,
today, nobody would doubt that without the Tadic¤ decision and the ensuing
heavy recourse by the ICTY to customary international law, there would
simply be no ICL at all.
If we now enjoy the luxury of discussing issues such as respect for the principle of legality, the limits and flaws of the doctrine of joint criminal enterprise,
and many other substantive and procedural issues, it is only because of the
bravery of the ICTY in referring to customary international law, which
prompted the birth and consolidation of ICL. Nino Cassese was among those
who masterminded this bold approach.
The outcome could be criticized and has been criticized, sometimes rightly
so. But criticism should not lead us to lose sight of the whole picture. In a way
Nino was like Michelangelo Buonarroti with his Prigioni, the Prisoners. These
are impressive unfinished sculptures, and each Prigione, each Prisoner, represents a strong and muscular man imprisoned in the marble, a man who strives
to get out of the marble with all his energy and power. With his strenuous
and restless activity, as President and Judge of the ICTY, Nino Cassese simply
wanted to liberate international criminal justice from the marble which was
trapping it.
We are now responsible for refining it.
For Nino, the refinement of ICL was mainly the task of scholars. Unlike
Michelangelo, Nino did not want to leave his Prigione unfinished. Therefore
his activity as a scholar and a mentor to his pupils and friends was driven by
his desire to achieve this result: by fostering academic reflection, by encouraging constructive criticism of the case law of international criminal tribunals,
ultimately by taking an active role in the building of a community of scholars
in ICL. He published his successful handbook on ICL;17 when the Statute of
Rome was adopted, he edited, with the help and assistance of others, a commentary on the Statute which also tried to take stock of the past experiences
of the Nuremberg and Tokyo Tribunals, and of the ICTY and ICTR;18 he
launched the Journal of International Criminal Justice, which has become the
leading journal in the field; he edited a voluminous Companion to International
Criminal Justice19 and a case book in ICL.20
Moreover he was a mentor to many of us, within and outside academic circles. He was always ready to suggest new topics for an article or a critical comment on a national or international decision, he was always generous and
17 A. Cassese, International Criminal Law (2nd edn., Oxford University Press, 2008).
18 A. Cassese, P. Gaeta, J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A
Commentary (Oxford University Press, 2002).
19 A. Cassese et al. (eds), The Oxford Companion to International Criminal Justice (Oxford University
Press, 2009).
20 A. Cassese et al., International Criminal Law: Cases and Commentary (Oxford University Press,
2011).
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meticulous in revising drafts and suggesting improvement, always open to constructive criticism and lively discussions.
Beyond academia, he restlessly tried to popularize the notions and institutions of international criminal justice, through articles and interviews in the
press everywhere in the world. His firm belief was that public opinion and
civil society could play an important role in addressing the inefficiencies of
the international mechanisms for enforcement, and impose moral authority
where the law fails or is silent.
[:::]
The future of international criminal law and justice is now in our hands. In
particular it is in the hands of the ICC, of its judges, its prosecutor, its staff. I
think that the Court ought not to be afraid of walking the road Nino paved so
stubbornly. The Court can and must be bold. The Court can and should interpret its Statute in a progressive and expansive manner, without ever losing
sight of its objectives, the most important of which is not spelt out in the
Statute: that of demonstrating that it is a Court for all crimes, committed by
whomsoever, a Court that is not suspected or perceived to be a tool in the
hands of a few powerful countries.
[:::]
To conclude, I would like to quote the last passage of the first edition of
Human Rights in a Changing World, published in the late 80s. At the end of his
analysis, Nino tries to explain the reason why one should strive to enhance
the protection of human rights when they are so systematically disregarded
everywhere in the world. His answer is simple, and as he put it himself, very
humane. He says, and I quote:
Remember the last scene in The Trial ^ a novel that holds the key of our existence ^ when K,
‘awaiting trial’, is dragged at night by two representatives of the Law to a lonely stone
quarry. Before he is stabbed in the back for unknown crimes, a window in the house opposite is thrown open and a figure appears and spreads its arms wide. ‘Who was it?’ the man
who is about to be killed wonders. ‘A friend? A good man? Someone who sympathized?
Someone who wanted to help? Was it one person only? Or were they all there? Was help at
hand?’
‘Perhaps’, Nino concludes, ‘it is enough for one about to die ç in a prison, a
concentration camp, a mine, a torture chamber, a city destroyed by bombs, a
village oppressed by drought ç to know he does not die alone; the figure in
the window is not indifferent: he will at least protest. Not much by way of consolation, but better than dying completely alone and forgotten.’
Dr Guido Acquaviva
Professor Gaeta provided us with a succinct yet engaging panorama. A very
personal one, and appropriately so. Allow me at this point to develop one
thought. It is clear that Judge Cassese’s legacy lives on for instance in our
A Tribute to Antonio Cassese
1431
enduring discussions on how to cater for the responsibility of individuals for
serious violations of essential international norms. Due to his belief in the
human being, their dignity and autonomy, Nino’s life was devoted to establishing if and when single individuals were actually responsible for specific
crimes, piercing the veil, so to speak, and attempting always to define how
our moral sense of injustice aroused by criminal acts can be translated into
legal concepts. Joint criminal enterprise, the circumstances excluding or mitigating responsibility, even the very definition of terrorism, are all examples of
this striving towards individual criminal accountability. This was, of course,
accompanied, as anybody close to Judge Cassese can attest, by a cautious and
lenient attitude vis-a'-vis the specific individual who might be found guilty,
again a sign of his strong belief in the dignity of human beings.
I will now invite to speak Professor Abi-Saab, a former colleague of Judge
Cassese on the ICTY Appeals Chamber, and an eminent Egyptian scholar and
practitioner of international law.
Your Excellency, you have the floor.
Prof. Georges Abi-Saab**
Dear Friends,
I say ‘friends’ because tonight we are all friends of Nino, so we have something in common; we are all friends in his memory. I may be one of his oldest
friends. After what Abdi [Yusuf] and Paola [Gaeta] have said, they leave me
with very little to add about humanitarian law. In any case, I cannot help starting with some personal reminiscences.
I met Nino for the first time some 50 years ago, when I arrived at the
Graduate Institute of International Studies in Geneva at the beginning of the
60s. I had come to finish my doctoral thesis and Nino had spent a year working
there. We coincided a little, but enough for me to see that this slightly built
boy ç I was also a boy then ç was a real intellectual. I would not say a
giant, because he was not that yet, but a very promising young man. Then,
and this is what really makes me feel very emotional tonight, then we met
here ç I would not say in this building, but on this ‘terre’, in the old premises
of the Academy, the Hague Academy [:::]. In 1964, an important Italian professor was giving the general course, Rolando Quadri, whom I had the benefit of
having as a teacher in Egypt. Quadri came to The Hague with 54 Italians ç
you could say all the ‘mafia’, the ‘Italian mafia of international law’. I gave
Quadri an article I had written about the Third World and international law.
He was kind enough to mention it in his course, which made me an honorary
member of this ‘Italian mafia’. Who was there? There were many older people,
like Conforti and Leanza, but there were younger people as well ç among
** Honorary Professor of International Law, Graduate Institute of International and Development
Studies, Geneva; Member of the Board of Advisors of the Journal.
1432
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them, Nino, whom I had met a few years before in Geneva. We spent three
weeks here, hearing lectures, going to dinner, going to Scheveningen at night,
and we became very, very close, you know, as when you meet someone who
shares your ideas and aspirations.
What were the ideas that we were sharing? We wanted to change the world.
We were progressives. Nino has always been a progressive. He was not, as the
title of the film, A Rebel Without a Cause, he was a rebel with a cause. What we
were looking for was a battlefield where we could defend this cause. That explains the different areas where Nino somehow, and I, to a lesser extent,
engaged in. International law, as Nino used to say, was ‘like a giant without
feet’. Somehow you have to find an artificial leg for it, and when you can provide it with a limb to make it move, then you would have achieved something
which explains the different fields.
Tonight I was asked to speak about international humanitarian law, but in
fact, the large generic cause that Nino was serving, [:::] was the human being.
Lauterpacht once said, ‘If international law is at the vanishing point of law,
then the law of war is at the vanishing point of international law.’21 As international lawyers, how can we, [:::] serve people, as groups and as individual
human beings?
For me, it was very easy, because I am a Third World-er and in the beginning
of the 60s we fought for the rights of the people of the Third World. As a
result, Nino became a great Third World-er as well. In fact, he worked a lot,
[and] we worked together near the end of the 70s to elaborate what was
called the Algiers Declaration of the Rights of Peoples, adopted on the occasion
of the bi-centennial of the United States.We wanted to do something equivalent
in nature [to the Bill of Rights], but for the rights of peoples. We had meetings
where Nino edited a book on the Algiers Declaration.
That was one area. Humanitarian law came into the picture near the end of
the 60s, particularly in the first seven years of the 70s through diplomatic
efforts, specifically the governmental experts and the diplomatic conferences
on IHL, which were convened by the International Committee of the Red
Cross to update the Geneva Conventions and complement them. Nino came
several times in the Italian delegation. [:::] Since I was already teaching in
Geneva, and was not incurring any expenses for the Egyptian government,
they put me in the delegation, so I participated in all of the sessions. When
Nino came, it is my recollection that the Italian government at that time was
that of the Christian Democratic Party, which was very, very conservative.
Nino, in his way, as well as others ç but Nino in particular ç tried, within
the small margins they had, to push things in the right direction. He was
always consistent in that, to the point of sometimes antagonizing the head of
the Italian delegation.
At that time Nino was teaching at the University of Pisa. He would convene
conferences between the sessions, and as soon as the Protocols were adopted,
21 H. Lauterpacht, ‘The Problem of the Revision of the Law of War’, 1952 British Year Book of
International Law (1952) 360, at 382.
A Tribute to Antonio Cassese
1433
he immediately called a big conference and really twisted our arms to produce
chapters of what became the first book on the Protocols, edited by Nino and
published in 1979: one volume of studies and another of discussions between
the major actors in the conference.22
Nino then moved to Florence, and there he would again convene and prepare
conferences on such topics as the use of force in international law, and what
was then a new area of development ç ‘state responsibility’ ç for example,
the famous conference on the international crimes of states, and publish the
results in books.23
In fact, our colleague, Ian Brownlie, who has also recently departed, [once
said] laughingly: ‘Nino is the best intellectual entrepreneur I know because he
puts us all to task to produce books on the current developments as soon as
they take place.’ Nino had this galvanizing power to bring people together and
bring the best out of them. But he was not at all just a scholar. After the meetings we would go down by the river in Florence to eat in one of the caves. He
loved life, and it is because he loved life that he wanted to use law to enhance
life, to enhance the lives of others.
Things went on, and by a freak of circumstance, we were both elected as
Judges at the ICTY when it was created. It was not easy for Nino to get elected
as President because there was a lot of reticence to have a European as
President. Some Judges were worried that he was maybe too close to the theatre of events in the former Yugoslavia for comfort. Fortunately, those who
knew him tried as much as possible to convince the others and as a result
Nino was elected. It was the best thing that happened to the ICTY, because, to
tell you the truth, the ICTY had very dim prospects. We have been celebrating
for the last two days the legacy of the ICTY. All the accused have been apprehended and brought to trial ç all of them, 161 individuals, starting from the
heads of states and heads of unrecognized entities, to the small fry. But when
we started, nobody believed that we would have half, or even any, of the big
fish.
We also had great handicaps: the first handicap was the UN bureaucracy. It
is nice for Ban Ki-Moon now to say that Nino was a great ‘giant of international
law’, but at that time it was terrible. They wanted to treat us as a small, subsidiary organ of the Security Council. We kept telling them: ‘We are a Tribunal,
we must have our independence, otherwise we cannot function.’ For years we
did not have a budget, we would have temporary appropriations, we could not
hire staff for any length of time. Then some people in the Legal Division
wanted to impose their personal views on how to run the Tribunal. We
needed very strong faith, almost a leap of faith, in order to stand our ground
and push as much as we could for the Tribunal while we had nobody to prosecute. [:::] That was our main problem.
22 A. Cassese (ed.), The New Humanitarian Law of Armed Conflict (Editoriale Scientifica, 1979).
23 A. Cassese, J.H.H. Weiler and M. Spinedi, International Crimes of State: A Critical Analyis of the
ILC’s Draft Article 19 on State Responsibility (De Gruyter, 1989).
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Fortunately, a very small fish, called Tadic¤ ç now Tadic¤ is a famous name ç
was caught. He was one of the torturers of a small militia who had the very
bad idea of going to visit his brother who had a small Yugoslav restaurant in
Munich. The Germans caught him and several months after the creation of
the Tribunal we managed to get him. [:::]
All that to tell you that being the President of such a tortured organism was
not an easy task. Nino was, as you all knew him, really hard-driven, he never
flinched, he was there, [:::] writing all the time. He always, all his life, slept
only four or five hours a day. What did he do in the rest of the hours? He
would write, and if you saw the file of letters to the United Nations, to the
Secretary-General, to the Head of the Legal Division, to this, to that, to contributors, you would appreciate the extensive amount of writing that Nino
did. He wrote to contributors because we also got money from them. We were
acting as an NGO almost, trying to get funds, and that led to something
which was not very healthy because some countries would contribute by seconding to us some of their staff, which threatened to undermine the independence of the Tribunal. [:::]
Problems and pressure abounded from all sides. Nino was worked up all the
time. He would phone me in the middle of the night and say, ‘Please come, we
have to discuss’, to which I would ask, ‘Discuss what?’
He would then reply, ‘We have to do something!’
‘Yes, but what can we do?’
In the end I told him, ‘Listen, you cannot speed a ship by jogging on its deck
and that is what we are doing, we are just jogging on the deck.’
Without Nino, it is not sure that the ICTY would have survived. He was so
intent on having it suceed that he ended [up] making it a success. Without
the ICTY, there would have never been an ICTR or an ICC, or as Paola [Gaeta]
said, an ICL, at least the modern ICL.
This brings me to the substantive law part of my speech, although it has already been covered by Paola [Gaeta] to some extent. She spoke about customary law. We are dealing here with criminal law, and in criminal law: Nulla
poena sine lege. I mean, if you do not have written texts, it is very difficult to
pass things as law. [:::]
In the Tadic¤ case, which is a paradigmatic case, we were facing a serious
problem. Unfortunately with the passing of Nino I am the sole survivor of the
bench that decided the case, but who knows for how long? [:::] Anyways, in
the Tadic¤ case, the big legal issue was whether war crimes can take place in
non-international armed conflicts. As Paola said, there was an easy way out.
‘La solution de facilite¤ ’ was to say, as the Security Council and the Chamber of
first instance did: ‘This case has enough international elements to consider
the armed conflict as an international armed conflict.’ If it were an international armed conflict we would have had no problem, it would have been easy
to conclude simply that the armed conflict was of an international character
and that war crimes applied.
However, Nino as well as those who were with him decided we should not
avoid the difficulty. We thought that there are certain rules in this regard
A Tribute to Antonio Cassese
1435
which apply to both categories of armed conflict. These rules had been established well before the Second World War, starting with the heavy bombardments of civilians during the Spanish Civil War. A lot of third states and the
League of Nations condemned these bombardments as war crimes, though
they took place in an internal armed conflict, there being no recognition of belligerency. So, we were speaking really of an internal armed conflict where
there was a large recognition by the international community that these bombardments constituted war crimes. [:::] The same as in Biafra in the 60s. We
ended up saying that there is enough practice, enough indication of the opinio
juris, of the conviction of the international community, that war crimes can
be committed in an internal armed conflict. That was the most important contribution of Tadic¤ to IHL. For, as you know, most of the conflicts after the
Second World War have largely been internal armed conflicts. Had we simply
taken the easy way, and said, ‘It is an international conflict’, then the sway of
IHL, and similarly, the criminalization of the serious violations of that law
even in internal armed conflict, would not have been established. We would
have been still discussing, is it covered, or not covered, and so forth.
Fortunately, Nino was there, and we were also helping, thus we took the
right road. It is true that Nino has always been driven, and sometimes he was
over-driven, and did go into overdrive. However, these are the vices of his virtues. Without really pushing things, you not only stay ‘in place’, but you regress. Why? Because: the world passes you by. Nino has left us, but his drive is
still with us, prompting us to continue along the same path.
[:::]
Dr Guido Acquaviva
Professor Abi-Saab continued canvassing Judge Cassese’s significant strides in
various fields of international law with a penetrating and, I hasten to add,
moving presentation.
Professor Abi Saab mentioned the word ‘progressive’, and I think this is interesting. I was reflecting upon the irony of the role of Judge Cassese when he
donned his judicial robes. He was an experienced practitioner, seasoned in
intergovernmental negotiations, chosen by a political body ç the United
Nations ç to be a judge first at the ICTY and then at the STL. We could say
that he lived a long life in and out of the establishment, so to speak, and he
was adept in the corridors of power. Yet, at the same time, he was often criticized for being too radical, progressive and forward-looking by politicians and
young academics alike. You would expect the former politicians and diplomats
to criticize him ç due to his independent mind and often, frankly, undiplomatic attitude. However, one can be excused for frowning about the harsh
criticisms against him by academics, often young ones. These are those very
academics who are actually supposed to bring fresh ideas and test the boundaries of the law. His was a revolution: in a sense, he embodied the surprising
1436
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and unfamiliar figure of an aging Judge constrained and criticized by young
up-and-coming scholars for being too progressive. [:::]
I have now the honour of giving the floor to another distinguished academic,
Professor Andrea Bianchi of the Graduate Institute in Geneva, a veritable
expert in various fields, including terrorism law and its interaction with
human rights law and humanitarian law. More specifically, Nino had told me
that profound discussions ensued between him and Professor Bianchi and
others on what he called the topic of ‘realizing utopia’, or of a ‘realistic utopia’.
This was a way to ensure that the lofty ideals espoused by many international
lawyers in their seclusion would be realized, at least to a certain extent, in the
practical world of international politics and expediency.
Professor Bianchi, you have the floor.
Prof. Andrea Bianchi**
I take the floor with sadness. I would have never imagined coming to The
Hague for this. I must confess that I am not particularly well versed in commemorating people who are no longer with us. All the more so with public figures, who turn out to have far more friends after death than they ever had in
life. I cannot claim or pretend to have been among Nino’s friends. We knew
each other. We crossed paths several times. We worked on some projects together, I said ‘no’ to him a couple of times, which I am sure he did not like.
He was a dear colleague. I respected him enormously. Not having had a
mentor ç a ma|Œ tre ç he was among those international lawyers whom I
really looked up to and by whom I was, most likely, inspired as I decided to
turn my passion for international law into a profession. Incidentally, I have
kept the passion and I trust Nino would have liked to hear that. This is perhaps
his first legacy: as an international lawyer, do not be afraid of being passionate,
be committed to your values and stand up for whatever it is that you believe in.
So, indeed, I respected him and admired him, particularly for his musical
talents. Yes, I said musical talents. Nino was able to play different instruments
for different audiences. He could play the most difficult of Chopin’s piano studies, he could engage in a jazz jam session or even accept to improvise a musical performance in the street because he thought that music need be known
and appreciated by a wider public than classical music concert halls kind of
audiences. Not everyone appreciated that.
I remember when he published in Italian the book that became International
Law in a Divided World.24 That was a very important book that showed that
the law has a context; that the legal dimension of international relations is
part of a wider fabric [:::]. Criticism was raised against that book for not being
** Professor of International Law at the Graduate Institute of International and Development
Studies, Geneva.
24 A. Cassese, International Law in a Divided World (Clarendon Press, 1986).
A Tribute to Antonio Cassese
1437
‘legal enough’ (whatever that meant!). Yet that was a great book that reached
out to many more readers than any other international law book could ever
aspire to attract at the time. But it is not uncommon for people to criticize
what they cannot themselves attain: a kind of ‘fox and the grapes’ syndrome, I
suppose. Nino later wrote several other books, particularly in Italian, that
were addressed to a wider public. He wrote well and he was able to convey
complex concepts in a clear and comprehensible way to the benefit of the unskilled reader.
That is also part of his legacy: if you like music you can appreciate different
styles and you mustn’t hold in contempt talented musicians just because they
play different tunes.
If I accepted to come here and speak about Nino’s view on international terrorism it is because I believe, perhaps wrongly, that it was I who offered to
him the occasion for thinking more thoroughly and systematically about the
criminalization of terrorist acts under international law. A few weeks after
9/11, I launched a research project which later led to the publication of the
book, Enforcing International Law Norms against Terrorism.25 In the highly emotional aftermath of 9/11, when international lawyers wondered whether international law was well equipped to put up with a threat of such an
unprecedented character, all the colleagues I had invited immediately answered the call. It was almost unprecedented: an impressive line-up of eminent
international lawyers who unconditionally said, ‘Yes, I’ll be there’. No one
declined, no one failed to turn up, which is quite telling about how we all felt
at the time.
That was not the first time Nino wrote about terrorism. He had already published an article in 1989 in the International and Comparative Law Quarterly,
in which in an act of prescience he had wondered what the international
community’s response to international terrorism should be.26 However, the
Conference I organized in Milan in May 2002 in the framework of the
above-mentioned research project was the first time he presented and articulated his vision of the criminalization of terrorism as a distinct crime under
customary international law. He had dropped a hint at the theory in his
well-known article in the EJIL on ‘International Terrorism as Disrupting Some
Fundamental Categories of International Law’27 that he must have written
while working at the paper for my project, but the Conference was the first
time, at least to my knowledge, that he put forward his view before an audience and defended it.
More particularly, he expounded there the four requirements that were necessary for him to characterize terrorism as an international crime per se.
First, the effects of acts of terrorism must not be limited solely to one state,
25 A. Cassese,‘Terrorism as an International Crime’, in A. Bianchi (ed.), Enforcing International Law
Norms against Terrorism (Hart, 2004) 213.
26 A. Cassese, ‘The International Community’s ‘‘Legal Response’’ to Terrorism’, 38 International
Comparative Law Quarterly (1989) 598.
27 12 EJIL (2001) 993.
1438
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but must instead be trans-border in so far as the persons involved, the means
used and the violence implicated ‘transcend national boundaries’; second,
there must be a foreign state that supports, tolerates or acquiesces in carrying
out the terrorist acts; third, the terrorist act must be a phenomenon of concern
to the international community as a whole, and a threat to the peace; and
fourth, the terrorist acts must be ‘very serious or large scale’.28
At the conference Nino trespassed the time allotted to speakers and the
ensuing debate was monopolized by his intervention. Understandably so: he
had an important message to convey, it was not easy to get it across the audience nor was it easy for the audience to take it in. Overall, it was a great performance on all sides: his and the critics’. It was one of the rare instances in
which you actually see an academic debate in academic circles.
Many elements of his theory about the criminalization of terrorism as a discrete international law crime were fine-tuned in his later article on the
‘Multifaceted Criminal Notion of Terrorism in International Law’ published in
his Journal,29 (the editors will forgive me if I use the possessive adjective ‘his’,
but I think it apposite) and in his manual on International Criminal Law.30
Both the objective and subjective elements of the crime were spelt out at
greater length or further specified in these two publications. For instance, as
regards the objective element, Nino clarified that the act must be already criminalized under any national legal system and that the victims can be civilians,
military or other state officials. As regards the subjective element, he identified
(reconsidering somewhat his previous thoughts) the main purpose of terrorism
with coercing a public authority (a government or an international organization) or a private transnational organization (such as a multinational corporation) to take or refrain from taking a certain course of conduct. This can be
achieved essentially by two means: (i) either by spreading fear or anxiety
among the civilian population; or (ii) by engaging in criminal conduct against
a public institution, a leading personality or a public or private authority.
Finally, it is worth noting his emphasis on the unique relevance of motive as regards this particular crime, which can only be committed on political, ideological or religious motivations and never on the basis of personal inducements,
although, as Nino would have conceded, this is not easy to prove in court.
Besides the contention that international terrorism is a distinct crime in
times of peace, Nino was convinced that it could also become a distinct crime
in times of armed conflict as regards ‘warlike terrorist acts’ that at some point
might emerge, as a mixture of IHL and general rules of international law on
terrorism, as distinct from the crime of terrorism as a sub-category of war
crimes.31
28 Cassese, ‘Terrorism as an International Crime’, supra note 25, at 223 ff.
29 A. Cassese, ‘The Multifaceted Criminal Notion of Terrorism in International Law’, 4 Journal of
International Criminal Justice (2006) 933.
30 Cassese, International Criminal Law, supra note 17, at 162 ff.
31 Cassese, ‘The Multifaceted Criminal Notion of Terrorism’, supra note 29, at 958.
A Tribute to Antonio Cassese
1439
If I were to summarize his scholarly intellectual itinerary on the issue of terrorism, I would emphasize the following elements: a clear aversion towards
dealing with international terrorism at the macro level of the use of force (already in 1989 he had foreseen the risk of a ‘whirlpool of spiralling violence’32
if an expansive reading of the notion of self-defence were to be adopted to
fight international terrorism); the complementary role to be played by domestic
law enforcement and by international jurisdictions; the importance of the
criminalization of terrorist conduct at the level of customary international
law; and the expansion of the scope of the international crime of terrorism as
a distinct crime both in times of peace and in armed conflict.
Two remarks on his method are in order. First, his thoughts on terrorism
evolved over time. This is significant as it shows that sometimes the law and
the way in which one thinks about the law from a scholarly perspective imply
taking changing societal demands into account, adjusting the intellectual
tools of analysis to such changes and, if necessary, reconsidering the views
that one had previously defended. Second, but this is not peculiar to his work
on terrorism, although it applies also to it, Nino always made an effort constantly to ascertain and, at times, to foster the social consensus which is
necessary to found general rules of international law on. His accurate reconstruction of international consensus broadly understood and his particular
emphasis on opinio juris in all those fields of law where the laws of humanity
rather than a scant and often contingent executive or judicial practice ought
to make the difference, is quite telling about his approach to law as rooted in
a societal context.
Nino’s academic view about the issue of the international criminalization of
terrorism was a strong one and despite criticism from different quarters he
strenuously defended it. I found this intriguing and I have long wondered why
this was so. I suspect the reason lies in what terrorism represents: wanton destruction, indiscriminate violence, the very negation of humanity. This must
have struck deep cords in Nino’s intellectual and emotional worlds.
Nino was a humanist. He put the human being and human values at the
centre of his scholarly work and, later, of his judicial practice. He was sensitive
to the human condition and unconditionally committed to making the world
a better place for human beings.
There is no humanity in a bomb; there is no poetry in sheer, ruthless violence. This is why the international criminalization of terrorism was so important to him. The terrorist is the contemporary enemy of humankind, hostis
humani generis, the very incarnation of evil, somebody who decides to renege
on his own humanity to claim the life of innocent human beings.
While thinking of this commemoration and of Nino’s legacy, the book by
Andre¤ Malraux, La condition humaine,33 the human condition, later translated
in English as Man’s Fate, came to my mind. Malraux, in telling a fictitious
story about the Chinese revolution, provides powerful psychological insights
32 Cassese, ‘The International Community’s ‘‘Legal Response’’ to Terrorism’, supra note 26, at 600.
33 A. Malraux, La condition humaine (Gallimard, 1933). In English, Man’s Fate (Vintage, 1990).
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on the centrality of individual conduct to trigger social change and to affect
world events. Ultimately, it is human beings’ individual choices that make the
difference in politics, law, society and, more generally, in life.
That is how I will remember him: as a humanist. This is no diminution, as, at
least in my own intellectual and emotional grammar, it matters just as much
as, if not more than, having been a great international law scholar, teacher
and judge. At a time when law is enchanted by the sirens’ song of social sciences methodology and pretends to present itself in the guise of an exact science based on rational choices and optimal outcomes, to reclaim the legal
space for the human being as a human being and not as some kind of fiction
such as the homo economicus is to me a powerful message.
Humanism as a secular religion for international lawyers, humanism as the
constant effort to reconcile reason, ethics and justice in our day-to-day activities. This is to me his main legacy, a daunting one. Let us all try to be worthy
of it.
Dr Guido Acquaviva
Thank you, Professor Bianchi, for this illuminating intervention [:::]. We are
now coming to the conclusion of this portion of our Tribute. Not before, however, I am allowed to give the floor to Professor Crawford. Professor Crawford
is not only universally known for his work on international personality and responsibility of states, but also for his activity as an advocate in international judicial proceedings. For instance, I was recently told that Professor Cassese
and Professor Crawford were on opposite sides in the Libya-Chad territorial
dispute before the International Court of Justice, where they were able to exercise their scholarship and erudition in the peaceful settlement of disputes.
Also, as many of you know, Professor Crawford wrote an illuminating review
of Cassese’s book entitled Self-Determination of Peoples, a review which undoubtedly does justice to the complex status in international law of the principle of self-determination and its ancillary rules. It is therefore to do justice to
this portion of Nino’s contribution to international law ç a contribution often
underappreciated ç that I give the floor to Professor Crawford.
Prof. James SC Crawford**
Antonio Cassese was attached to the principle of self-determination throughout his scholarly career. He analysed it in detail in his Lauterpacht Lectures
in 1987 and in the monograph which resulted in 1995,34 as well as in other
** Whewell Professor of International Law at the University of Cambridge; former Director of the
Lauterpacht Centre for International Law, Cambridge University.
34 Cassese, Self-Determination of Peoples, supra note 10.
A Tribute to Antonio Cassese
1441
works, notably his general text.35 He was one of the experts whose work was
relied on before the Canadian Supreme Court in the Reference re Secession of
Quebec.36
Cassese tackled the principle in all its ambivalence, on the one hand making
strong and supportive references to it, on the other hand adopting a cautious
attitude towards self-determination especially outside the colonial context.
In the course of his work, Cassese articulated an unorthodox and at first
sight curious view about the relationship between principles and rules of international law, an issue directly relevant to his analysis of self-determination,
which he saw as a general principle of international law. While many scholars
take a Dworkinian view of the distinction, one which sees principles as general
norms which have weight according to the context, whereas rules either
apply or not depending on their terms and the facts,37 Cassese saw principles
as the lowest common denominator in situations where there is no general
agreement on the norm. Self-determination was one of the ‘overriding legal
standards that may be regarded as the constitutional principles of the international community’.38 At the same time there was fundamental disagreement
about its application beyond the colonial context, disagreement which prevented it having specific effects there.
According to Cassese, the principle of self-determination is ‘the expression
and result of conflicting views of states on matters of crucial importance’.39
On this approach a principle is a vague standard that is able to accommodate
conflicting views about its content. It is ‘only’ a principle because there are
such conflicting views. Presumably, if views did not conflict, the principle
would soon crystallize into a ‘specific and precise’ rule. The status of a particular norm as a principle rather than a rule derives not from the generality of
the principle, its application as a ‘directive principle’ having weight rather
than applying in an all-or-nothing fashion, but from the existence of persistent
disagreement about its value and effect.
This presentation conforms to Cassese’s view that self-determination is to be
seen as an expression of a fundamental ambivalence on the part of the various
actors. At the level of general principle, he borrows from the Delphic phrase of
the International Court in Western Sahara describing it as ‘the need to pay
regard to the freely expressed will of peoples’.40 In his own words, ‘peoples
must be enabled freely to express their wishes in matters concerning their
condition’.41
[:::]
35 A. Cassese, International Law (2nd edn, Oxford University Press, 2005), in particular at 60^64.
36 [1998] 2 SCR 217, 115 ILR 536. See the legal opinions in A. Bayefsky, Self-Determination in
International Law: Quebec and Lessons Learned (Kluwer, 2000), Addendum to the Amicus Curiae
Factum of the Human Rights League, at 402.
37 R. Dworkin, Taking Rights Seriously (Duckworth, 1978), at 24.
38 Cassese, International Law, supra note 35, at 48 (emphasis in original).
39 Cassese, Self-Determination of Peoples, supra note 10, at 128.
40 Ibid., quoting Western Sahara, Advisory Opinion, ICJ Reports 1975, 12, at 33.
41 Ibid.
1442
JICJ 10 (2012), 1419^1447
Cassese was not immune, as none of us are, to favouritism amongst his
sources. In Self-Determination of Peoples he engaged at length with the 1976
Algiers Declaration of the Rights of Peoples, a non-governmental statement of
international law, which in his view seems to have all the virtues and none
of the vices of an intergovernmental declaration. It defines the right to
self-determination of people in the following way: every people has an imprescriptible and unalienable right to self-determination. It shall determine its political status freely and without any foreign interference.42 And it goes on to
provide the guarantee and sanction in case of breach of this right: any people
whose fundamental rights are seriously disregarded has the right to enforce
them, especially by political or trade union struggle and even, in the last
resort by the use of force.43
In his monograph on self-determination, Cassese stated that the Algiers
Declaration, ‘gave teeth to the loose standards stipulated by the United
Nations’ in both Common Article 1(1) of the 1966 Covenants and the 1970
Declaration on Friendly Relations, as it was ‘now forcefully proclaimed that
the government must be democratic, that is, not authoritarian and must be
able effectively to guarantee the free exercise of human rights.’44
Perhaps unwisely, I reposted45 by using the image of Magritte’s Ceci n’est pas
une pipe, the famous picture that was not a pipe but the mere image of a pipe.
Similarly, I suggested that the Algiers Declaration does not give selfdetermination teeth but rather the image of teeth. I understand that Professor
Cassese did not take my parallel kindly, though he forgave me later on.
[:::]
In his International Law textbook, Cassese treats self-determination as one of
the fundamental principles governing international relations, though as the
last of them, and as distinct from the respect for human rights. He also distinguishes between the scope of self-determination as customary international
law and its scope under Common Article 1 of the UN Human Rights
Covenants. This is a rather odd distinction given the generality of Common
Article 1 and the absence of any apparent intention to limit it in such a way.
However, Cassese identifies not one but two principles, one based in customary
law, the other in Article 1. These principles are concurrent, but they are not coextensive; their content differs in important respects. For example, under customary law there is a special obligation toward racial groups, but no general
obligation to afford all citizens a right to participate in the government of the
state and thereby to determine its future.46 Article 1, by contrast, contains the
latter but not the former rule. Cassese could have treated Article 1 of the 1966
42
43
44
45
Universal Declaration of the Rights of Peoples, 4 July 1976, Algiers, Art. 5.
Ibid., Art. 28.
Cassese, Self-Determination of Peoples, supra note 10, at 298.
J. Crawford, ‘Book Review and Note: Self-Determination of Peoples: A Legal Reappraisal’, 90
American Journal of International Law (1996) 331, at 332.
46 Cassese, Self-Determination of Peoples, supra note 10, at 310^311.
A Tribute to Antonio Cassese
1443
Covenants as reflecting an existing principle (located within the framework of
general human rights), rather than treating it, as he does, as a merely conventional norm. Statements of general principle, especially when couched in such
terms as ‘all states’ or, for that matter, ‘all peoples’, must at least be presumed to
reflect and even to develop the existing general law, rather than to diverge
from it.
Still, one of the virtues of Cassese’s approach to self-determination was his
firm independence and willingness to describe it as he saw it, which should
be contrasted with the one-sided tendency of others to search for a single,
self-sufficient, absolute norm. Cassese concludes his treatment of
self-determination under the heading ‘Limits of the principle’, honestly observing that: the acceptance of the principle into the realm of law has been selective and limited in many respects. In particular, current international law on
self-determination is blind to the demands of ethnic groups (not constituting a
racial group) and national, religious, cultural or linguistic minorities.47 In the
post-colonial period, self-determination was not a trump card but had to compete for respect with other principles, in particular that of territorial integrity.
Nowadays, in the course of the causes and events underlying the Arab Spring,
another aspect of the principle, traditionally overlooked, has come back into
the spotlight, namely, the right to internal self-determination. It is useful to
recall the words of the Algiers Declaration:
Every people has the right to have democratic government representing all the citizens
without distinction as race, sex, belief or colour, and capable of ensuring effective respect
for the human rights and fundamental freedoms for all.48
Cassese commented that this provision ‘states quite openly that the political
oppression of a people constitutes the denial of its right of self-determination’,
concluding that ‘internal political self-determination is the synthesis and the
summa of human rights’.49 He also prophetically recalled the words of warning
of the US Secretary of State Lansing regarding the crucial questions arising
from the right of self-determination:
Will it not breed discontent, disorder and rebellion ^ Will not the Mohammedans of Syria
and Palestine and possibly of Morocco and Tripoli rely on it?50
It is a great loss for the community of international scholars that Professor
Cassese will not be able to continue his assessment of the principle of
self-determination in general, and its internal aspect in particular, in light of
state practice since the Arab Spring. For that reason, among many others, his
passing signifies the winter of our discontent.51 But the international law for
which he so valiantly fought would be glorious summer ç and it is for that
hope we should remember him.
47
48
49
50
51
Cassese, International Law, supra note 35, at 63 (emphasis in original).
1976 Algiers Declaration, Art. 28.
Cassese, Self-Determination of Peoples, supra note 10, at 297^298 (emphasis in original).
Cassese, International Law, supra note 35, at 61, note 12.
W. Shakespeare, Richard III, Act I, sc 1, ll. 1^2.
1444
JICJ 10 (2012), 1419^1447
Dr Guido Acquaviva
Thank you, Professor Crawford, these were magnificent words that allow us to
do justice to Nino’s selfless battle for the rights of peoples and the rule of law
over the past decades. Nino also wrote courageous papers, for instance, on
the use of natural resources in the occupied territories. Only recently
Professor Cassese disclosed a project which he had co-authored in the 1980s
for the Italian government. This project was aimed at creating a viable
Palestinian state ç as part of a confederation with Jordan, at least at the
onset ç as a true and honest attempt to achieve self-determination over natural resources, internal affairs, cultural and educational policies leading eventually to full independence.52
This session would however be deficient if we did not allow two highly esteemed practitioners from sharing with us their recollections and tributes to
Nino. The first of these speakers is John Jones, former Legal Officer to Judge
Cassese at the ICTY and then defence counsel before international criminal
jurisdictions.
Mr Jones, you have the floor.
Mr John Jones**
I first met Nino Cassese in the lobby of a hotel in New York City in November
1994. He was there to present the Tribunal’s first annual report to the UN
General Assembly and he took the opportunity to interview me there as a candidate for what were then called law clerks to the Judges. These being the
days before mobile phones and e-mails, I had sent Nino half a dozen faxes to
confirm our meeting beforehand, growing increasingly concerned as the date
of the meeting drew closer, that I had not heard back from him. He had in
fact received all my faxes and later told his secretary, ‘I cannot have someone
that nervous working for me ç I am nervous enough myself!’ Despite that inauspicious beginning, however, I did come to work for Nino Cassese, for
nearly two years, from 1996 to 1997, in the very exciting period when the
ICTY was just being established, with Nino as the ICTY’s first President. I have
many fond and vivid memories of that period, which say a lot about Nino as a
person, which I would like to share with you.
My main recollection of Nino is of a great deal of laughter, which made him
a joy to work for, as well as an inspiration. [:::]
Far from being an academic in an ivory tower, Nino was a consummate politician. I was amazed, when we went to New York to present the ICTY’s 3rd
annual report, how Nino seemed to know instinctively how to work with the
politicians to try to achieve what was essential to the ICTY’s success. There is
** Former ICTY/ICTR Associate Legal Officer; Defence Counsel before the ICTY, SCSL and STL.
52 For a brief summary, see G. Acquaviva, ‘A Conversation with Antonio Cassese’, Leiden Journal of
International Law (2012) 815, and documents cited therein.
A Tribute to Antonio Cassese
1445
no question that what the ICTY accomplished, in being a viable institution at
all, was due to Nino’s unceasing efforts to make the world sit up and take
notice and stay true to the vision which led to the ICTY’s creation. On one occasion when we met Madeleine Albright, she said frankly that when they set up
the ICTY, they did not have any great expectations ç they thought that there
would be a trial or two and then the ICTY would shut up shop. It was thanks
to Nino, she said, that that is not how it turned out.
One of my most vivid memories of working with Nino was when we went to
a meeting of the Peace Implementation Council, which was established after
the Dayton Peace Agreement was signed in November 1995. At that meeting
of foreign ministers, which was held in Florence in July 1996, hosted by the
Italian government, Nino had a seat at the table as the representative of the
ICTY. The ICTY was then still very much in its infancy with only a handful of
accused persons in detention and its future was still far from assured. Nino
was infuriated as government after government took the floor to say how well
the peace process in Bosnia was going and how everyone could pat themselves
on the back for what had been achieved. Nino then took the floor and said passionately that there was no room for complacency, that refugees were not returning, that the ICTY’s indictees were not being arrested and that much
more needed to be done. The effect was not dissimilar to when Krushchev
banged his shoe on the table at the UN. Right after his impassioned speech,
Nino had to leave to give an interview to CNN, so he left me to hold his chair,
as an angry Lamberto Dini ç then the Italian foreign minister ç took the
floor, furious that the farce of self-congratulation over which he had been presiding had been exposed, and pointed an angry finger at the seat lately occupied by Nino and now nervously occupied by me. But Nino had been right to
shatter the complacency, as the German Foreign Minister, Klaus Kinkel said
immediately afterwards. Nino was not one to suffer fools gladly nor fear to
rock the boat when it needed rocking.
I remember too, in this vein, the day that Louise Arbour had indicted
Slobodan Milos› evic¤, then a serving head of state, and she bumped into Nino
in the hallway and asked him, jokingly, ‘Have I started world war three?’ Nino
reassured her not, and, ever the feminist, declared delightedly, ‘Only a woman
can be that brave.’
As the first President of the ICTY, Nino was passionate that the ICTY should
work and passionate about all and any injustice. A little known fact is that we
once had a mini-trial at the UN detention unit because Dusko Tadic¤ claimed
that a prison guard had kicked his cell door shut, bumping him in the head in
the process. We conducted an enactment with Nino playing the role of Tadic¤
and me playing the role of the guard. I delivered a feeble kick to the door to
see if it was possible to cause injury by kicking it closed. The heavy metal
door barely moved.‘No, no, no’, Nino said,‘do it properly’, whereupon I delivered
an almighty kick to the cell door, with Nino inside. It slammed shut with a
sickening thud and I briefly feared that I had knocked Nino out cold. However
he soon appeared around the door, nodding his head thoughtfully and saying,
‘It is possible.’ The guard was subsequently found responsible ç Nino, former
1446
JICJ 10 (2012), 1419^1447
President of the European Committee for the Prevention of Torture was not one
to tolerate any mistreatment of those in custody.
As I said in an earlier vademecum to Nino, of those whom the world considers great, I have no doubt that Nino was truly great. He was not just a
great visionary and a great international lawyer, but a great person, and a wonderful friend. He will be sorely missed.
Dr Guido Acquaviva
Thank you, John.
It is definitively appropriate that practitioners and Judges, professors and colleagues from the four corners of the world, from different backgrounds and
persuasions, have all joined us in this Tribute, the first of many Tributes I am
sure, to Antonio Cassese. He was really a citizen of the world, with friends in
every corner of the globe and a strong will to improve the human lot. And
when I say that he had friends everywhere, I should add that for him being a
friend to somebody meant to tell them the naked truth, to criticize them (even
ruthlessly, if need be), to force, in a sense, their continued improvement and
striving to perfection. I am sure many of you have had personal experience of
this. [:::]
Finally, a view from the bench. Judge Kwon, Vice-President of the ICTY and
presiding Judge over several cases, as well as a colleague of Professor Cassese
on the board of the Journal, will close this Tribute with a few words of his
own, for which we are grateful.
Your Excellency Judge Kwon, you have the floor.
Judge O-Gon Kwon**
It is my humble honour to conclude this gathering by paying tribute to our beloved friend and colleague, Judge Antonio Cassese.
As we reflect on the lessons of the ICTY [:::] we do so with a profound awareness that the legacy of this tribunal ç and, indeed, the entire field of ICL ç is
fundamentally intertwined with that of the great scholar and jurist, Nino
Cassese. Nino was the man who re-awakened ICL, a field that had long been
dormant since the Nuremberg trials. Indeed, it is a tribute to Nino’s legacy
that one cannot conceive of how the various international criminal tribunals
would have been established without him.
Although Nino was a contemporary of mine in the field of ICL and we
worked closely together on the law journal he founded, the Journal of
International Criminal Justice, actually he has always been my mentor and role
model. It was through Nino’s book on ICL that I first grasped the powerful
** Judge and former Vice-President, ICTY; member of the Board of Editors of this Journal.
A Tribute to Antonio Cassese
1447
idea of international criminal justice. And I vividly recall being shocked the
first time I read the Tadic¤ Appeals Judgement, as it enlightened me about so
many crucial dimensions of ICL.
As a person, Nino was such a sweet, amicable and humble man. He had a
never-ending academic curiosity, energy and sense of humour. He was always
humbly attentive and meticulous in nature, and his infectious personal passion
for our work never ceased. In fact, Nino often recalled working on Christmas
Day 1993 to prepare the ICTY Rules of Procedure and Evidence :::‘but only
five hours’, he said.
Since Nino’s passing, I have heard many other touching stories that perfectly
exemplify Nino’s personal and professional legacy. For example, in the
‘Soliloquy’ section of his book, The Human Dimension of International Law, Nino
stated: ‘with hindsight, I feel that while perhaps my ‘‘practical’’ action has
been somehow helpful, I have not contributed much to legal scholarship’.53
What a tremendous example of modesty from a man whose publication list
runs 12 pages long!
Another example is the Journal, which Nino founded without any discernible
institutional or financial support. He was armed only with faith in his mission
and the unstinting support of his friends. In this spirit, he also used the royalty
proceeds from his Commentary to the ICC Statute to fund expensive translations of French and German legal essays on international and criminal law.
He did so in order to broaden and deepen academic resources for judges and
lawyers practicing before international courts and tribunals.
I have also long been aware that Nino generously donated any award money
he received to the Journal’s prizes for the best article and best book proposals
by young scholars, while other money went into the idea of an Oxford
University Press series of monographs by young scholars. Moreover, while at
the STL, all of his non-tribunal income went towards an STL ‘interns fund’ so
that they could be paid a modest stipend. Such acts of sincere generosity
reveal the powerful way in which Nino was always investing in those around
him on a personal level while also tangibly enriching the field of international
criminal justice.
In sum, Nino was a bridge between people, between defence, judges and
prosecution, between legal cultures, and between points of view that somehow
he could reconcile. He was also, of course, an immense inspiration and a
model of hard work, commitment, intelligence and perseverance. He had kept
the hopes of a young man all through his life and remained the believer
among all the doubters. He believed that law could improve the fate of humanity and, somehow, convinced so many of us.
His leadership and thought-provoking work will be sorely missed in our
field. But now his spirit lives on in all of us and in this field of international
criminal justice. It is now left to future scholars and practitioners to attempt
to fill the big shoes he has left behind. [:::]
53 Supra note 2, at lxxx.