In Celebratus: M. Cherif Bassiouni (1937-2017)

[Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]

Cherif Bassiouni, Distinguished Research Professor of Law Emeritus and President Emeritus of the International Human Rights Law Institute at the DePaul University College of Law, Honorary President of the Siracusa Institute (formerly known as the International Institute of Higher Studies in Criminal Sciences (ISISC) – Siracusa, Italy), and Honorary President of L’Association Internationale de Droit Pénal, passed away on September 25, 2017.

International law academe customarily mourns the passing of great jurists by authoring In memoria tributes to the departed leaders of our field. However, as I reflected on what to write to honor Cherif’s memory, I felt that an In memoriam was not exactly the suitable tribute. This is because Cherif’s legacy is in no danger of being forgotten. Cherif, or MCB, as his friends and close associates called him, has left us a mammoth scholarly record of thirty-five books, forty-four edited volumes, and over two hundred and seventy law review articles. These publications have been authored in and translated into multiple languages, including Arabic, English, French, Italian, and Spanish and have been cited by the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Supreme Court of the United States, and other judicial bodies.

Through these writings and in over six decades of teaching at the DePaul College of Law, in various universities in the United States and around the world, and at the Siracusa Institute, Cherif made a permanent mark on international law. He is essentially the father of International Criminal Law as we know it today; he is the authority on extradition law and practice; he has made immense contributions to international human rights law; he has written widely on Islamic law and Middle East politics; and he is one of the authors of the Rome Statute of the International Criminal Court. Cherif was also a consummate educator who cared deeply about his students. He always sought to nurture their ability to apply the law rigorously and to live up to the highest ideals of justice to which the legal profession aspires. For his contributions to humanity, Cherif was nominated to the Nobel Peace Prize in 1999, and was awarded numerous medals and decorations from the Egypt, Italy, France, Germany, Austria, Croatia, Bahrain, and the United States.

So in short, Cherif’s legacy is ineffaceable. This makes an In celebratus that commemorates Cherif’s life and contributions a more fitting tribute to this giant of international law.

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There is one saying that encapsulates Cherif’s worldview. He repeated this saying often and it was included in a final message that he personally authored and that was sent out to his students, friends, and colleagues after his passing. It is this hadith by the Prophet Mohamed:

“If you see a wrong, you must right it:
with your hand if you can,
or, with your words, or with your stare, or with your heart
and that is the weakest of faith.”

Cherif’s life was dedicated to the righting of the many wrongs that afflict our world. He did this through his writings, his teaching, his advocacy, his volunteerism, and his involvement with the United Nations, all of which were all motivated by a commitment to confront tyranny and defend the defenseless. One way to celebrate and honor Cherif is to reflect on his scholarly work and discuss how he helped elucidate concepts such as Double Criminality for the purposes of extradition and articulate principles such as aut dedere aut judicare. Or one could recount his instrumental role in the drafting of the Convention Against Torture and the Rome Statute. However, having been a mentee, friend, and adoptive son of Cherif’s for many years, I would like to recount four stories from different stages in Cherif’s life which I knew were dear to his heart and that reflect his passion for the pursuit of justice.

The first story is from his childhood. As he tells us in his soon-to-be-published memoirs, one afternoon in 1943 his father, who was an Egyptian diplomat, received an unfamiliar guest in their home. Although he was not in the room, an ever-curious and ever-mischievous Cherif listened-in on the conversation. He saw this man roll-up his sleeve to reveal a number that had been tattooed on his forearm. Later, Cherif’s mother explained to him that there was a “bad man” in Europe who was taking certain people, tattooing numbers on their arms, and killing them. Who were these people, and why was the “bad man” killing them, asked Cherif. Unable to reveal the full extent of the terrible truth to her young son and unable to contain her emotions, Cherif’s mother simply told him that these people were Jewish like Mr. so-and-so and Ms. so-and-so who were Jewish friends of the Bassiouni family, and added that the “bad man” didn’t like these people only because they were Jewish. This experience left a lasting impression on Cherif. It introduced this seven year old boy to the existence of evil and ingrained in him a reflexive desire to defend the meek, the voiceless, and the powerless, and to resist those who commit such atrocities.

A few years later, Cherif witnessed another instance of injustice. This time, however, it was not tyranny directed at specific individuals or at particular peoples. Rather, it was imperialism that sought to subjugate an entire nation. In 1956, while he was studying law at the Faculté de Droit of the Université de Dijon in France, Egypt’s revolutionary President Gamal Abdel Nasser nationalized the Suez Canal. Shortly thereafter, Britain, France, and Israel signed the Sevres Protocol pursuant to which they launched the Suez War, which Egyptians call “The Tripartite Aggression,” in a bid to regain control of the Suez Canal and emasculate Nasser’s burgeoning influence across the Arab World and throughout the Third World. Cherif immediately dropped everything, returned to Egypt, joined the National Guard, and fought against the Anglo-French-Israeli invasion forces. For his bravery and for the injuries he sustained in combat, Cherif was awarded the Medal of Military Valor First Class, one of Egypt’s highest decorations at the time. This was Cherif at his finest. In the face of injustice that was manifesting itself at the level of relations among nations, Cherif left the relative safety of a quaint French university campus to risk his life fighting for his country.

The third story comes from the early 1990’s. By then Cherif had been teaching for decades and had become recognized as a leading authority on international criminal law. It was, therefore, natural for his compatriot UN Secretary General Boutros Boutros-Ghali to appoint him to serve on and then chair the Commission of Experts established by the Security Council to investigate the crimes being committed in the former Yugoslavia. The commission had an important impact on the development of international criminal law. It paved the way for the establishment of the International Criminal Tribunal for the former Yugoslavia and the evidence it gathered proved invaluable to the tribunal’s prosecutors as they commenced their investigations. One aspect of the commission’s work that has received relatively lesser attention was its role in shedding light on the use of rape as a weapon of war. The commission conducted interviews with hundreds of female and some male victims of rape, and documented patterns of sexual assault that were undertaken by belligerents to achieve tactical gains on the battlefield, to realize the strategic objective of ethnic cleansing, or for the mere entertainment of troops. Meeting victims of these horrendous crimes deeply affected Cherif. One summer night in his beloved retreat in Michigan he recounted this experience and began telling his wife Elaine Klemen and myself how for years after the end of the commission’s mandate he would get nightmares about the interviews he conducted with rape victims, and how one of his proudest moments was when rape was included as a war crime and crime against humanity in the Rome Statute.

The final story comes from the Bahrain Independent Commission of Inquiry (BICI), which Cherif chaired. I had the privilege of serving as the commission’s Legal Officer and worked closely with Cherif and the other commissioners on BICI’s Final Report. During a visit to a women’s detention facility, Cherif, BICI’s Chief Investigator Khaled Ahmed, and I met two high-profile detainees. These were Jalila Al-Salman, the Vice President of the Bahrain Teachers’ Association, who had been detained for allegedly inciting teachers to participate in anti-government protests, and Rula Al-Saffar, the President of the Bahrain Nursing Society, who had been detained for providing medical assistance to injured protestors. Both of these detainees recounted to us the inhumane and degrading treatment to which they were subjected. As we left the detention facility, Cherif appeared visibly shaken. He told Khaled and myself that he was determined to secure the release of these women and that he would raise the matter with H.M. King Hamad of Bahrain. Being the disciplined positivist that I am, I looked to Cherif and said: “But that’s not in our mandate. Our job is to investigate allegations of human rights abuse and faithfully report our findings. We’re impartial investigators not activists.” He looked at me and said: “Yes, we’re investigators, but we’re also here to do good.” He then went on to tell us about the following incident that happened during his service as the UN Independent Expert for Human Rights in Afghanistan.

He had located a detention facility in which 852 Afghan men where being held in despicable conditions. When he investigated the matter, Cherif discovered that these men had been held incommunicado for over two years because US Attorney General John Ashcroft wanted them to remain detained until they were interrogated. That night after witnessing the agony and misery of these detainees who were neither charged nor indicted of any crime, Cherif knelt to the ground and prayed to God. He said: “I truly want you to make me an instrument of these people’s freedom. I do not want reward or recognition – I just want the satisfaction of getting these people out.” The next morning, Cherif launched a campaign to set these men free. He met US Ambassador Khalilzad and virtually everyone in the Afghan government to secure the release of these men, including the Chief Justice, the Attorney General, the Minister of Interior, and President Hamid Karzai. In each of these meetings, Cherif gave the Afghan Government an ultimatum: he threatened to announce and widely publicize this unjust mass incarceration in his report to the UN Secretary General, unless these men were released. Sure enough, a few days after he returned to Chicago, his representative in Kabul, Hatem Aly, called to inform him that the 852 men had been released and returned to their families.

Naturally, having heard this moving story and seeing Cherif’s resolve to intercede on behalf of Jalila Al-Salman and Rula Al-Saffar, I relented (not that it was up to me whether Cherif discussed the matter with H.M. King Hamad anyway!) Sure enough, weeks later, these two women were released from detention to spend Eid Al-Fitr with their families. This was only one example of many interventions that Cherif and Khaled made on behalf of victims of human rights abuses in Bahrain. They helped reinstate hundreds of students and employees who had been expelled from their schools or jobs for demonstrating against the government and they helped establish a compensation commission to provide financial reparation for the victims of human rights abuses.

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In addition to his professional pursuits, Cherif was a multifaceted man of many talents and multiple layers of identity.

Cherif was an immensely proud Egyptian. I think there is no story he enjoyed telling as much as that of his fighting in the 1956 Suez War. But Cherif was also a citizen of the world and a proud naturalized American. He unwaveringly believed in those universal self-evident truths that are the foundation of the ideals that make America great. He was an unrelenting advocate of the unalienable right of every human being to pursue a life of liberty, dignity, and happiness.

Cherif was a force of nature. He wrote his latest book on the former Yugoslavia while battling multiple myeloma. Cherif was also a perfectionist. As Kelly McCracken-Pembleton, Giovanni Pasqua, Assia Buonocore, Filipo Musca, Stefania Lentinello, Neil Townsend, Jessica DeWalt, Daniel Swift, Deirdre McGrory, Douglass Hansen, Molly Bench, Kandy Christensen, Meredith Barges, Jennifer Gerard, Kari Kammel, Mohamed Abdel Aziz and all those who worked with him know, Cherif was a tough taskmaster. He was an obsessive micro-manager who paid close attention to every substantive and procedural detail of his work. But he also cared deeply about our lives. To many of us, especially Khaled Ahmed, Yaser Tabbara, Ahmed Rehab, Kelly McCracken-Pembleton, and myself he was our adoptive father. He advised us on our education, counseled us on our careers, consoled us during life’s trials and tribulations, and mediated arguments with our significant others. Cherif was omnipresent in the lives of all those around him, and for many of us, including myself, he was our anchor.

Cherif was a patron of the arts, a connoisseur of fine wines, and an amateur singer (although I wouldn’t count this as one of his outstanding talents!) He was an aristocrat who ‘walked with Kings, but never lost the common touch’. His charm, his charisma, and his sense of humor were enrapturing. His soul was generous and his heart compassionate; he was an unmatched orator; an inspiring teacher; a gifted wordsmith; a spectacular storyteller; and a supreme scholar of encyclopedic knowledge.

Cherif was a warrior for justice. He confronted the worst in man with the best in man, he fought might with right, and stood for virtue in the face of evil.

– Farewell, MCB! Gone, but never forgotten. May you rest in peace.