Pacem in Terris Lecture Series
A World of Conflict or a World of Law?
September 30, 2004
Pacem in Terris was a remarkably prescient document. The Holy Father, John XXIII, looked out at a world profoundly altered since his youth and his adult years before and during the Second World War. It had been altered by the crumbling of the great European empires of the nineteenth and early twentieth centuries. Pope John observed the march of Asian and African dominions and colonies towards political independence. “Soon,” he wrote, “no nation will rule over another.”
It had been altered by the decisive defeat of the European dictatorships and the overthrow of imperial Japan, and the consequent emergence of democratic states. It had been altered by a new emphasis on human rights as the basis of a secular moral order, rooted traditionally in the 1689 British Bill of Rights and in the American constitution, and articulated in its modern form in the 1948 European Convention.
It had been altered too by the commitment of the world’s most powerful economy and most effective military power to the “general public authority” for which the Pope called, which would, he hoped, establish “a juridical and political ordering of the world community”. He anticipated, long before the word became fashionable, globalisation. “Today the universal common good presents us with problems which are world-wide in their dimensions . . . “
John XXIII concluded “It is therefore our earnest wish that the United Nations Organisation may be able progressively to adapt its structure and methods of operation to the magnitude and nobility of its tasks. May the day be not long delayed when every human being can find in this organisation an effective safeguard of his personal rights, those rights, that is, which derive directly from his dignity as a human person, and which are therefore universal, inviolable and inalienable.”
Let me go back to 1945. Taking a long view of the postwar period, at least up until the end of the Cold War following the collapse of the Soviet Union in 1989-1991, the international community experienced steady progress towards a world in which, even if the authority of international law was not wholly accepted, a structure of rules and regulations was constructed which influenced the way in which nation-states behaved. One might describe it, historically, as a gradual transition from the Westphalian system of sovereign states to one in which duties and rights lie beyond borders as well as within them. The world is still in that phase of transition and we have seen some backward steps. But this, I believe, still describes the direction of the journey.
The process of establishing the authority of international law, based on common values, rights and duties, stemmed from the period immediately after World War II. The early essays were influenced by what might be called “victors’ justice”. The Nuremberg trials profoundly influenced the concept of international justice, including the identification of “crimes against humanity”; they in turn were profoundly influenced by the fact that the Anglo-American alliance ( together with the Soviet Union) had won the war.
Today’s institutions are still the heirs of that period of “victors’ justice”, including the global financial system which is governed by the Bretton Woods’ institutions, the World Bank and the International Monetary Fund. Both are dominated by the United States and to a lesser extent, its major European allies. Their policies broadly conform to what has come to be called the Washington consensus.
This needs to be borne in mind, for in the developing world, two thirds of humankind, there are sound reasons for resenting the power structures forged by the postwar Western alliance. Many of the policies the IFIs have adopted, especially in areas like development aid, capital movements and international finance, reflect the interests of the wealthy Western powers rather than the interests of the majority of the world’s population.
After 1945, member-states of the United Nations started the long hard process of refining these early elements of international law, turning them into treaties and protocols. For example, in 1972, the use of toxic and bacteriological weapons was banned; in 1976, military abuse of the environment was outlawed. Little by little, the United Nations began to construct a cats’ cradle of multilateral treaties and conventions, complemented in some instances by bilateral agreements like the 1976 ABM treaty between the Soviet Union and the United States.
Human Rights and International Obligations
The complement to this effort to construct a system of treaties and conventions between nations was the movement to establish legal obligations with regard to human rights. Pope John XXIII had identified the dignity of each human being, “As a human person, he is entitled to the legal protection of his rights. ” More conscious of the universality of human rights than his successors, John XXIII specifically referred to both racial discrimination and the insistence among women that their human rights be fully recognised, although the encyclical sadly still used non-inclusive language.
The human rights movement sought to establish human rights based on internationally recognised values that would materially affect the way in which individual states dealt with their citizens and with other states. The rights — one could say, the sanctity — of the individual would be recognised even against the authority of the nation-state.
It is in Western Europe that protection of individual human rights has been most fully accepted, and taken furthest. The innovation here is to be seen in the European Court of Human Rights. Unlike other regional courts of human rights, the ECHR deals with disputes between individuals and sovereign states. The European Convention of Human Rights has been incorporated into the laws of many individual member-states of the Council of Europe, setting the limits of sovereignty within the Westphalian system.
Human rights criteria have also been embodied in the Copenhagen criteria, which apply to countries that belong to the European Union, and also to those who want to join. These requirements are not any longer just about the single market, trade and competition policy. They are about democratic institutions, individual liberties, freedom of the press, independent courts and so on. They have a real impact.
The outcome of the current debate about whether Turkey’s system of criminal justice and its treatment of prisoners conform to the Copenhagen criteria will determine Turkey’s fitness to be a candidate for membership. The Czech republic’s discrimination against its Roma minority caused similar difficulties. The Copenhagen criteria have proved to be an immensely powerful tool in ensuring conformity with democratic practice and respect for human rights — and have done so without any use of force.
The Rule of Law
During the Cold War, the effort to establish an international rule of law suffered from the application to it of double standards. The Soviet Union did not subscribe to Western concepts of human rights, claiming (with some justice) that political rights without economic rights were meaningless. Western nations disregarded human rights when it suited them, as it so often did in Central and South America, and in Africa. Christian leaders found a powerful voice in South Africa, but were largely silent, even colluding, in Central America. Pope John XXIII’s successors, for instance, have not supported with much enthusiasm the causes of Archbishop Romero and the six Jesuit priests, victims of their own stand against abuse of the poor by the powerful.
Since the Cold War ended, the international community has again tried to establish an international rule of law. The criminal tribunals established to try those charged with crimes against humanity are its most radical expression. The first of these, the trial of Slobodan Milosevic, flowed from the internal wars waged by his government in Croatia and Bosnia-Herzegovina, culminating in the massacre of 7,000 Bosnian Muslim boys and men at Srebrenica in 1995. The massacre, about which the West rarely speaks, cost more lives than the terrorist attacks of September 11, 2001, on the World Trade Center and the Pentagon. The international criminal tribunal at The Hague was in fact an attempt to rectify this atrocity after the event.
The tribunal was again the response to a desperate failure by the international community. This was the failure to act against the genocide in Rwanda, which eventually led to some 800,000 deaths. We now know that it would have been possible to stop that genocide in its tracks, if the world had been able to find some 10,000 UN troops. No response came from the international community. Again, after the event, an international tribunal was set up.
The establishment of these tribunals led to the most ambitious attempt since 1945 to enforce the rule of law internationally. This came in the form of the International Criminal Court, now ratified by 97 nations, a number which brought the treaty legally into force on July 1st 2002. The ICC was radical in concept: if someone is accused of a “crime against humanity”, and if a nation-state fails to prosecute its own citizen, then the ICC has the right to do so on behalf of the international community. This lies directly at the convergence of concepts about how the world should be run.
The United States, and until recently the Soviet Union, were the two countries which found it very difficult to accept the restrictions of international law. (This has been a point of view paralleled, we should note, by the relationship between the United Kingdom and the supranational structures of the European Union). The US had, throughout the 1960s and 1970s, been a major player in the process of constructing international law. Yet from the election of Ronald Reagan onwards, it began to back-pedal from its earlier commitment to that process. The US began to revert to historical isolationism, avoiding entanglement in the terrible problems of the rest of the world. It wanted to be free of the shackles of endless alliances and commitments.
President Reagan was, however, still caught up in the Cold War, and needed to preserve coalitions such as Nato, not for reasons of power but for reasons of politics. Once the Cold War had come to an end in 1989-90, the situation changed. The US became the sole superpower, and the need to foster multilateral relationships effectively disappeared.
The International Criminal Court (ICC) confronted the US with a precise statement of the role of international law in relation to its own citizens. While it is true that the ICC will not try someone who has been brought to justice by their own country, it is also true that the court reserves the right to try someone who, for whatever reason, has escaped that justice. This, to the US, is anathema. It is not part of the constitution, it is not part of the concept of a sovereign state, it is not part of the central concept of a supreme court separate from political structures. As such it remains unacceptable for the US. America’s next step, though, was to set about a deliberate attempt to wreck the ICC, by forming a series of bilateral treaties with other countries to undermine its authority.
The world after September 11th, 2001
I come, finally, to terrorism and September 11th. It is true that the terrorist atrocities did change many things, above all the sense that the mainland United States was invulnerable to attack. The problem of September 11 can be expressed directly and briefly. The most inappropriate reaction to the attack, an event which profoundly shocked the United States, was to describe it as a war. To use the term “war against terror” — where the enemy is not a sovereign state, never mind globally identifiable, which should not and cannot be dealt with by military means alone — implied a conflict, yet one that offered no final victory, and Bush is now having to deal with the consequences of that.
Afghanistan was the nearest thing we could find to a sovereign state, so it was identified as the enemy. The coalition went into that state, a country whose government was not in complete control, fought a war, and to its apparent amazement discovered that the real enemy had left Afghanistan and spread in every direction. We had kicked a hornets’ nest and now had to chase the hornets.
We need to think carefully about what we mean by “terrorism”. It is made up of many different components. We might mean secessionist movements, yet here we apply variable standards. In East Timor the UN discerned some justice in the cause, reacting to its occupation by Indonesia many years ago. The UN behaved with courage here, refusing to abandon the East Timorese. But Chechnya is also a secessionist struggle, a struggle which has been continuous for over two hundred years, which we are now describing as a terrorist movement and which the Russians have the right to suppress. It is a terrible war with terrible consequences, yet to criticise the conduct of the war now seems somehow disloyal, somehow opposed to the “war on terror”. The utter barbarity of the killing of children at Beslan now makes criticism of Russian behaviour in Chechnya close to unthinkable.
The invasion of Iraq was seen by many Americans as a new battleground in the war on terror. In fact, as Brent Scowcroft warned at the time, it was a serious distraction. Indeed, it has made the terrorist challenge worse, since Iraq was not known to have links with international terrorist groups before the war, and now they flourish in the chaos that afflicts parts of Iraq. Pakistani intelligence officials have reported the movement of militants to Iraq. One told The Financial Times recently — Iraq is working like a magnet for them (El Quaeda).
The postwar story of Iraq demonstrates painfully the limits of military power. The victory over the Iraqi military was quick and relatively easy. But ever since, the coalition has been dogged by the perception of its illegitimacy
This is not just a matter of legality, although that has now been questioned by the Secretary General of the United Nations. Kofi Annan, himself. It is also a question of the post facto behaviour of those who claim legitimacy. The handling of the occupation was crude and often misjudged. It ranged from the absurdly optimistic expectations of the Pentagon as to how Iraqis would react to the invasion, the systematic looting of Iraq’s museums, libraries and Government offices; the unwillingness even to try to account for civilian deaths; the brutality of the occupation, culminating in the demeaning of prisoners in Abu Ghraib prison to the maladministration of funds for reconstruction. All have contributed to the perception of the war and its aftermath as illegitimate. Even now, the provisional interim government gives little impression of being truly sovereign.
The commanding military position of the United States can do little to influence public opinion, and public opinion in the Muslim world will be decisive in the war against terror. Perceived legitimacy still depends upon the approval of the United Nations. That is why President Bush and Prime Minister Blair have tried so hard to involve the United Nations in Iraq.
The benefit of hindsight allows one to conclude that the war on Iraq was probably illegal and certainly mistaken. Great powers can override international law with apparent impunity, but in a world now largely composed of democracies, they pay a heavy price in influence and respect. Given the terrible weapons terrorists have devised, weapons whose use is no longer constrained by concern for the innocent, they pay a heavy price in security too.
How, then, do we deal with all of this? The only way, of course, is by addressing the underlying causes. Violence and coercion are not an answer. Militarily to crush these symptoms of resentment is rarely a successful long-term strategy. One approach must be economic: to reduce global poverty, to criminalise corruption, to establish a fairer system of international trade. The other must be to build and defend the rule of law. We cannot create a world of stable peace when the differences between rich and poor are growing year by year. People have to be offered some kind of hope if peace is to last.
I will end with a story. I was recently in Palestine. It is a place where young Palestinian boys have no future, no jobs, no chance of earning a living, and increasingly no access to education. So those boys often sign up for Hamas or other terrorist movements. They may then enrol in fundamentalist schools, where they learn the old lines of hatred: hatred of Christians, hatred of Jews. They join groups which are responsible for killing civilians indiscriminately. Economic misery and a brutal occupation provide these footsoldiers to serve terrorist leaders, since the only alternative to being bought is to watch their families starve. It is only through tackling such fateful situations that we can break through the cycles of poverty and violence which so threaten international security.