The Coming of International Law and Peace
The most fundamental of all human rights is the right of all human beings to live in peace and dignity without the constant fear and threat of imminent extinction. Yet, as we approach the twenty-first century, the world continues to face acts of aggression, genocide, apartheid, terrorism and other crimes against humanity. It is a bleak historical record but in the race between civilization and disaster, the eager and discerning eye may still find room for hope.
The history of humankind has been a chronicle of bloodshed and violence among peoples with competing needs, ideologies and aspirations. The contemporary scene merely confirms the historical pattern. The recent invasion of Afghanistan by Soviet military forces was condemned by many states as an act of aggression – the gravest of all international crimes. A Security Council resolution calling for withdrawal of foreign troops was blocked by a Soviet veto. The admonition of a hundred nations was rejected by the USSR.
In Iran, fifty American citizens have been held hostage despite months of effort by the international community. A non-enforceable order by the International Court at the Hague, calling for the immediate release of the captives, has been ignored. An investigative commission appointed by the United Nations was not even allowed to see the prisoners.
In Bogota, the ambassadors from many States were held hostage by other militant groups. The Archbishop of San Salvador was the victim of political murder while saying Mass. Judges and other officials are gunned down regularly in Italy and Spain. Terrorists find easy asylum in friendly foreign States. In under-developed lands and areas of conflict millions of innocent people face starvation while limited planetary resources are squandered on armaments that cannot ensure the peace. Surely something is dangerously awry in the international legal order.
In the face of the calamitous historical record one might be tempted to conclude that the ingrained practices of the past are inexorable and unalterable. But I am not ready to believe that humankind is destined to self-destruction. People can and must learn to settle their differences legally rather than lethally.
The many people who inhabit the earth are in varying stages of economic, social and political development. The infinite variety of their problems and needs must inevitably give rise to international ferment and conflict. It is vital for humankind that such conflicts be settled peacefully. The creation of an effective peace keeping machinery is thus of consummate importance. Global ethics must supplant national ethics. If society could agree upon a code of establishing minimum standards of international behavior and upon a court whose judgments would be enforced, it would be as significant to maintaining international peace as legal codification, adjudication and enforcement are to protecting the tranquility of every independent national State. But there can be no peace without justice, no justice without law, and no meaningful law without a court to decide what is just and lawful under any given circumstance.
There is no State in the world that does not have a system of domestic criminal law to help maintain the tranquility of its national society. Those who violate the established code of conduct are subject to sanctions in the name of the community whose peace has been disturbed. In contemporary international society no such system exists. Sovereign States are bound only by such restraints as they may willingly accept. They can and do arrogate to themselves the authority to act in any way they see fit to protect their own national interests. The General Assembly of the United Nations is a political and consultative body with no enforcement powers. The International Court of Justice can sit in judgment only on such disputes as States may voluntarily submit to it. There is no international court with jurisdiction to deal with international crimes or international criminals.
In a world torn by upheaval and ferment there is clearly need for a new system to help maintain international law and order. New norms of international behavior are being born. There is a growing recognition that all human beings, regardless of race, color, creed, or location, should be entitled to certain fundamental and minimum standards of life.
Thus, the destruction, waste or withholding of resources needed to sustain human existence may, one day, be prohibited as a criminal act. So too, endangering the environment, or violating disarmament agreements, or refusing to settle disputes by arbitration, adjudication or other peaceful means, should also be outlawed as crimes for which states and individuals may be held to account. Consideration of new norms has already begun, and in time, there will have to be plans for the establishment of new mechanisms for interpreting and enforcing the new international legal standards.
Acts that cause death and suffering on an international scale must be prohibited as international crimes against world order. Progress has already been made toward the establishment of a more effective juridical system. However, much work remains to be done. New institutions capable of resolving obdurate problems should not be expected to spring to life full-grown. The effort to define international crimes is less than a century old – hardly a blink in the eye of time. The fact that great difficulties still lie ahead is no reason for inaction. Quite the contrary – the sooner the problems are faced the sooner they will be resolved. It is my thesis that it is possible to replace the law of force by the force of law.
The Evolution of International Criminal Law
Since humans first took to the sea in ships certain acts have been condemned as international crimes against humankind. The pirate was subject to punishment whenever he was apprehended. Those engaged in the slave trade often faced a similar fate. The supremacy of the principle of law was imbedded in the very conception of the United States, and the young nation would soon inspire new concepts in the old world. When the thirteen colonies declared their independence in 1776, they agreed to be bound in a Federation with a single Supreme Court that would adjudicate disputes between the States.
The Hague conferences of 1899 and 1907 looked to compulsory jurisdiction of arbitration tribunals to replace the armaments race among opposing Powers, but their efforts failed, and the principle remaining alternative was to continue to settle their differences by armed combat. The need for an international tribunal was recognized, but sovereign States, steeped in the tradition of war, were not ready to entrust their vital interests to the decision of any impartial third body. The price for their folly was paid by inordinate suffering and by the lives of ten million soldiers and ten million civilians killed in the first World War.
The end of the “war to make the world safe for democracy” brought forth a renewed public outcry for an improved world order. Victors and victims demanded that those who had caused the war and violated humanitarian codes of warfare should be tried as criminals. A Permanent Court of Justice was planned to settle future disputes among States. The hopes for a better world were to rest on the twin pillars of a League of Nations and the rule of law.
In fact, the planned trial of the Kaiser for having initiated wars of aggression was never carried out – despite the clear obligations of Articles 228, 229 and 230 of the Versailles Treaty. War crimes trials, held in 1921 in the Criminal Chamber of the Reich Court at Leipzig, charging German commanders with atrocities, turned out to be a farce. In the US Senate an isolationist minority prevented the United States from becoming a member of the League. The new International Court that was finally created lacked the compulsory jurisdiction to settle the disputes that might lead to war. The edifice for a new world order was built on pillars made of sand.
US Secretary of State Elihu Root, and many other distinguished experts recommended, in 1920, that a High Court of International Justice be created “to try crimes against international public order and the universal law of nations.” The proposal was brushed aside by diplomats trained to focus primarily on the immediate interests of their own country.
The Kellogg-Briand Pact of 1928 was ratified by almost all nations. It purported to outlaw war as a means of settling disputes, but it left each State free to decide for itself when it could legally resort to self-defense of its own vital interests. Despite the world-wide economic depression of the late 1920’s, there was little recognition that new international perceptions were required.
The 1934 assassination of King Alexander of Yugoslavia by Croatian nationalists brought forth a world-wide demand that terrorism be punishable by an international court. When the self-styled “civilized States” assembled for that purpose, the desire for unanimity meant that the most conservative views would ultimately prevail. It was easier to adhere to the past than to embark on new experiments. By 1937 passions had cooled, and India was the only State to ratify the Convention for the Suppression of Terrorism.
Hitler’s defiance of treaty obligations, Italy’s aggression against Ethiopia, Germany’s invasion of its neighbors and the Soviet invasion of Finland brought little more than verbal denunciation by States too frightened to organize in any effective way to preserve the peace. The inability to act collectively in imposing economic or military sanctions led to the disintegration of the League that had been created to maintain the peace. Nations should have learned from the first world war that military alliances could not prevent combat and that without an enforcement mechanism, rules of warfare could not prevent atrocities. Refusal to suppress terrorism could only encourage terrorism and willingness to block aggression could only stimulate further aggression. Having failed to learn the lessons of the past, nations would soon begin to list world wars by Roman numerals.
World War II brought fifty-seven “independent States” into armed conflict. The enormity of the losses and the misery endured between 1939 and 1945 by countless millions can never be calculated. At least fifteen million combatants were killed. “Total War” became a new concept in which all humanitarian considerations were subordinated to the drive for victory. Nations that sought power and glory ended in ruins. Six million Jews were either worked to death or sent helplessly to gas chambers for extermination and cremation, in factories erected for the sole purpose of consuming human beings. Nazi opponents of all nationalities and religions were tortured and imprisoned. Three million Soviet prisoners died in captivity. By the time the war was over, man had learned to immolate whole cities with atomic bombs that could destroy all living things and damage the genes of future generations.
Once more victorious nations assembled to plan for a new international organization of States. Once more there were demands that those responsible for aggression and atrocities be placed before an international criminal court. Under American stimulus the four Allied powers agreed to create an International Military Tribunal for the trial of Axis war criminals. It was never intended that the Nuremberg court should serve merely as a mask of justice to hide the face of vengeance. Nor was it conceived as a legal instrument to enshrine the status quo in a changing world. The Nuremberg Charter, drawing upon historical precedents, was to mark a step forward in the codification and development of international law. Legal precepts that had slowly been evolving were to be reconfirmed, and a new era of humanity was to be encouraged.
The Nuremberg judgments made it clear that the massive abuse by a State of its own citizens was the legitimate concern of all humankind. The concept of “crimes against humanity” became a living legal reality because sovereign States had become perpetrators of outrageous assaults against human beings, including their own nationals. Those who were persecuted because of their ethnic origin, religion or political persuasion were promised the protection of the community of States by punishment of the offenders, regardless of their rank or station. The Nuremberg trials were also to confirm that launching a war of aggression was punishable by the international community, that superior orders would be no excuse for murder and cruelty, and that even the Head of State would be answerable to all of humankind for major acts of inhumanity that offended the human conscience. The war crimes trial at Tokyo followed the Nuremberg precedent.
The Nuremberg principles were affirmed by the General Assembly of the new United Nations in resolution 95 (1) of 11 Dec. 1946, and people were encouraged to believe that a universal rule of law was on the horizon. The UN Charter called for an International Court of Justice but, unfortunately, States were still unwilling to invest it with the necessary binding authority to resolve disputes that might lead nations to war. Further, no criminal jurisdiction against individuals was provided for. Jurists were beginning to recognize that certain acts of international immorality should be treated as international crimes, but it was only a beginning. American Ambassador Bernard Baruch proposed that any violation of an agreement to control atomic energy be punished as an international crime. The world is still paying for its failure to accept that sage advice.
The General assembly, in Resolution 260 (III) of 9 Dec. 1948, confirmed that genocide was a crime under international law, but nations were unwilling to create any international court to deal with the offense. Traditions that had endured for thousands of years could not be erased quickly, and it would take time to gain acceptance for new values and concepts, before new institutions for the maintenance of world peace could win widespread acceptance.
New Lights on the Horizon
At the end of 1948, a renewed determination to protect those who were oppressed inspired the UN Universal declaration of Human rights.
The European convention on Human Rights, signed in 1950, contained the dramatic innovation of a European Court of Human Rights where individuals could hold even their own governments to account before an international tribunal. It demonstrated that sovereign States could voluntarily agree to surrender a portion of their sovereignty in order that certain fundamental rights might be protected in a court of law. It would serve as a model for the creation of a similar court in South America in 1979.
An International Law Commission of independent experts was appointed by the General assembly to draw upon a statute listing acts that should be treated as offenses against the peace and security of humankind. In their 1950 report (General Assembly Off. Records; Fifth Sess. Supp. 12A/1316), they recognized that a code would have to go hand in hand with a court capable of enforcing it. But the outbreak of hostilities in Korea brought the super-powers into confrontation, and plans and hopes for the development of an international law of peace were pout into the deep-freeze for the duration of the cold war.
A distinguished lawyer and diplomat, Ricardo Alfara of Panama, expressed the views of many legal experts when he said:
“If the rule of law is to govern the community of States and protect it against violations of the international public order, it can only be satisfactorily established by the promulgation of an international penal code and by the permanent functioning of an international criminal jurisdiction.”
The vast majority of the International Law Commission agreed that an international judicial organ was both possible and desirable, but many powerful States, including the Soviet Union, the United Kingdom and the United States, were still not prepared to surrender any part of their sovereignty to any impartial agency.
While the idea of an international peace code and an international criminal court remained on ice, the UN began to recognize new international crimes. The General Assembly condemned racial discrimination, apartheid, and violations of “economic and political rights of the indigenous population” in South Africa, as “crimes against humanity.” Other violations of human rights were also beginning to be characterized as criminal acts. When aerial piracy threatened the safety of civil aviation it was denounced as an international crime. Although enforcement machinery was still lacking, acts of politically-motivated terrorism again evoked demands for a punitive international response. The Vietnam War and the atrocities it evoked brought calls for retribution and challenged whether any nation was competent to judge the legality of its own acts. It was only when that war was winding down that the warming breezes of détente began to thaw the ideas for an international court that had been frozen for nearly two decades.
Formulation of a code of offenses against peace had been stymied by the absence of any agreed definition of what acts would constitute the crime of aggression. Until the code was ready no court was required, and thus there was a convenient excuse for international inaction. In 1973, a definition of aggression was finally adopted by consensus of the General assembly. Some States insisted that the definition could not restrain the use of force by those seeking self-determination. Although it contained such loopholes, the presence of such a definition eliminated the stated obstacle to further work on an international criminal code and an international criminal court.
On the 25th anniversary of the UN, the Secretary-General, decrying acts of aerial hijacking, called for “an international tribunal defending the interests of all peoples and nations.” Those who sought to justify the use of force pointed to the misery and frustration that gave rise to acts of violence. In their view, every conceivable means was legitimate to overthrow what they perceived to be a form of terrorism by the oppressive State.
The absence of any clear agreement by the international community setting forth what acts would not be permissible, regardless of the nobility of the goal, and the failure to create any independent agency to determine whether there had been a violation of the agreed standard of conduct, could only lead to additional acts of violence. The victims would describe the deeds as criminal terrorism, and the perpetrators would hail their own actions as justified by the struggle for freedom, self-determination, national liberation or some other apparently laudable objective. One person’s terrorism was another person’s heroism, and without a code and a court, there was no way of determining which was which.
Many statesmen were beginning to recognize that if there was to be a peaceful international community the conduct of all groups, be they countries, militants or corporations, would have to conform to moral standards that were acceptable to the commonwealth of humankind.
A group of twenty “eminent persons” began to prepare a code of conduct for multi-national corporations, and its work formed a basis for a UN Commission on Transnational Corporations that, according to ECOSOC Res. 1913 (LVII) of 5 December, 1974, was to meet annually and report to the Economic and Social Council of the UN. These, activities, admittedly still fraught with controversy, evidenced the beginning of a new sense of corporate morality that was to be imposed via a code of conduct established by the international community.
In 1973, in Resolution 3068 (XXVIII), ninety-one States declared apartheid to be an international crime “irrespective of the motive involved.” Thus, for certain offenses the loopholes were to be closed, but not for all international crimes.
A Convention on the Prevention and Punishment of Crimes against International Protected Persons, including Diplomatic Agents, Resolution 3166 (XXVIII), was adopted by consensus at the end of 1973. The draft that had been prepared by the International Law Commission stipulated that offenders were to be extradited or tried by the arresting State “without exception whatsoever.” Furthermore, the outcome of such trials was to be reported to the Secretary-General for public dissemination.
Most states would have accepted the ILC draft, but at the last moment a new clause was added, exempting from its restrictions, “peoples struggling against colonialism, alien domination, foreign occupation, racial discrimination and apartheid in the exercise of their legitimate rights to self-determination and independence.” In order to reach consensus, the exculpatory provisions were adopted. Some groups were unwilling to see that if the means employed to attain a just goal failed to respect human life, all of humankind would live in jeopardy. Diplomats, having agreed to undercut the Convention to Protect Diplomats, should not have been surprised to find themselves among the victims.
The Conventions that gave the appearance of controlling international lawlessness, such as the Friendly Relations Declaration, (Res. 2625 (XXV), 24 October, 1970), the Hijacking Conventions of Tokyo in 1963 and Montreal in 1971, the Convention to Protect Diplomats of 1973 and the 1974 definition of aggression, all contained opaque clauses that allowed nations to interpret the consensus agreements in ways that would best suit their own particular goals.
The Convention Against the Taking of Hostages, (Res. 34/146), that was adopted by consensus in December 1979 contained a general condemnation of the crime but left the same old loopholes, exempting those who seek self-determination by every available means. A Convention to Prevent International Terrorism, (Res. 34/145), is still in the drafting stage while nations and groups argue about their different perceptions of permissible and impermissible international behavior.
It might have been anticipated that although terrorism would be condemned in principle, the failure to agree in substance and the unwillingness to create any enforcement mechanism would mean that the crime would not be deterred. The humanitarian right of asylum from persecution was being distorted to grant asylum from prosecution to those who had disregarded all humanitarian considerations.
Failure to act effectively against terrorism produces more terrorism. Inability to stop aggression stimulates new aggression. As long as sovereign States are not prepared to take the steps logically required to produce an international anarchy can be expected to continue. Yet there are many positive signs that the old order is changing.
The lights of progress flicker and grow dim from time to time, but as one studies the historical evolution of ideas, there can be little doubt that the general trend illuminates a brighter future. The very fact that the subjects are being debated is itself an encouraging sign. It proves that unbridled sovereignty is being replaced by a determination to find solutions to problems that are now recognized to be the legitimate concern of the entire family of nations.
A Brighter Future
In only the past quarter of a century the world has witnessed the dissolution of a colonial system that carried within it the seeds of its own destruction. This major upheaval of international society brought many new States into being, eliminated the automatic majorities formerly commended by the western world and fragmented the structure of the United Nations. Within the newly developing nations, rival religious, ethnic, political or religious factions fought to obtain power or control. They demanded a more equitable share of the bounty enjoyed by the developed world. Their political allegiances became the target of competing social systems – one stressing the civil and political rights of individual freedom, and the other focusing on economic stability and the security of the State.
Both superpowers, the Soviet Union and the United States, sought a world order based on their own models. It is not surprising that in the search for accommodation, there have been pitfalls and setbacks. International society is still an undeveloped community, and it is moving slowly along its difficult and winding road. Nevertheless in the struggle between socialism and capitalism we must now allow humanitarianism to become the victim.
As we scan the horizon, in the fields of economics, human rights and law, significant progress is clearly visible. The worst excesses of laissez-faire economics have gradually been reduced. Many States now tax a portion of private and corporate wealth according to ability to pay for the common welfare. The dispute is not whether there should be State controls but the extent of those controls.
A multitude of international agencies have been created to cope with the economic needs of the underdeveloped regions. The efforts to deal with the world’s monetary system, development loans, transfer of technology, the conduct of multi-national corporations, the elimination of trade barriers, and the creation of norms of economic behavior, all reflect the growing movement toward cooperation among States.
International economic problems are far from being resolved, but they are increasingly being dealt with on a world-wide basis. The distribution of natural and national resources is no longer a matter of purely domestic concern. It is increasingly being recognized that no nation can be an economic entity unto itself and that it must act in concert with other countries if it is to enhance the interests of its own people. Nations are beginning to think about a Charter of Economic Rights and Duties and a New International Economic Order.
Reform of the UN system and charter in order to improve the functioning of international society is already under consideration. The special committee on the charter of the United Nations and on strengthening the role of the Organization has had a series of meetings since being established in 1975, and has made a number of proposals for strengthening the UN system.
The rising cost of armaments, estimated at over a billion dollars a day, is directly related to the economic problems of the world. Admittedly, the cost of defense is consuming the very resources needed to diminish the privation that gives rise to the threats that jeopardize the social order. Yet agreements have been reached in areas that could never have been imagined even a few years ago. United Nations Peace-Keeping Forces have played an important peace-keeping role in Egypt, Lebanon and other parts of the world as reported by the Secretary-general in his report of Sept. 11, 1979 (A/34/1). Treaties have banned the testing of nuclear weapons in outer-space and on the ocean floor. Non-proliferation treaties are in force. A new treaty seeks to govern the activities of States on the moon and other celestial bodies. Despite the current difficulties with Salt II, the efforts to limit strategic arms have made some progress even thought they are far from adequate. It will take time but people are slowly coming to realize that unless we destroy all weapons of mass destruction the weapons will destroy us all.
Growing awareness of the link between economic and human rights can be seen in other dramatic developments of recent years. It was only in 1967 that Arvid Pardo of Malta gave expression to the inspiring dream that the resources of the ocean should be used as “the common heritage of humankind” so that its immense wealth could benefit those most in need. It now appears that there is growing support for a Common Heritage Fund, for a Sea-Bed Authority and for an advanced dispute-settlement system through judicial-type procedures. It is expected that a Law of the Sea Treaty will be adopted by most of the nations in the world in the not-too distant future. If such substantial progress can be recorded regarding governance of four-fifths of the surface of the planet can the remaining one-fifth be far behind?
States are learning that the voluntary surrender of part of their sovereignty is not only in their own interest but is also an essential prerequisite for a peaceful life in the 21st century. New values of caring and sharing will have to be learned as part of the process of adapting national needs to international needs. Today, too often, slogans replace reason and politics displace principle. Too often innocent persons are subjected to cruelties and deprivation because they do not share the color, religion or political conviction of those in power. Universal tolerance and compassion must be learned, and is being learned through such new institutions as the courts of human rights, the European Parliament, the Helsinki accords, and all of the agencies of the United Nations that deal problems of world health, conditions of labor, refugees, children, the rights of women, and the myriad other problems that affect the lives of every human being.
None of these new programs is complete. People are still persecuted and millions still cry for their fair share of humanity. But the significant change in recent years is the widespread recognition that evil and intolerable conditions should be charged. Moral obligations widely acclaimed have a way of eventually attracting sufficient public support to make flouting them a perilous adventure for any government.
The Road Ahead
Legal agreements and law provide the framework in which international society balances its inconsistent and conflicting interests. In an interdependent world there are limits to the extent that any group can determine its own destiny. A legal system that allows the parties to interpret the law as they see fit is unworthy of respect because it is no system at all. Until all people are secure in their rights no people will be secure.
The Nuremberg Tribunals held forth the promise that all people would, in future, be accountable to the law, and that aggression and crimes against humanity would not go unpunished. Many acts were condemned as international crimes but no permanent international court was ever created to punish the guilty.
Efforts to extend the compulsory jurisdiction of the International Court at the Hague have been intensified but that court has no authority over individuals or their crimes. The creation of an international criminal court was debated in meticulous detail at the United Nations over twenty years ago, but the “time was not yet ripe.” It’s getting riper every day.
The United Nations has on its agenda for the end of 1980 the long-delayed Code of Offenses against the Peace and Security of Mankind. The fundamental rights and duties of States will have to be reconsidered. The parties will have to think about providing compulsory and binding authority to an international criminal court as well as more effective procedures for international law enforcement.
National security of States depends not on weapons that are suicidal but upon the peaceful, just and binding settlement of conflicts. It is not a matter of idealism but of self-interest and survival. As nations resume the debate about a code for peace and a court to enforce it they will, hopefully, begin to understand each other better. Even if, as is to be expected in these formative years, the resolutions seeking to define international crimes against world order are faulty or ignored, the process of debate and drafting will be a learning experience. Learning is the beginning of wisdom, and wisdom, not force, is the road to enduring peace.
No one can say with certainty whether civilization will win its race with disaster. Without law and order in international affairs there will be chaos. Despair is not a viable alternative to hope, and, at the risk of being branded an optimist, I have noted the movement, however hesitant, toward universal human standards that are slowly beginning to supplant the selfish sovereignty that has governed this planet for centuries. The next two decades will see changes that are today unforeseeable. New mechanisms will be created to cope with international crimes that now disrupt international society and its inhabitants. It may be anticipated that the technology that brought men to the moon and created the awesome capability of thermonuclear annihilation will, some day, be applied to the cause of peace. Those who cherish life on earth must encourage governments and decision-makers to act in accordance with humanitarian rather than political considerations. Those who yearn for the welfare of all human beings must combine their efforts in a vast multinational network of like-minded individuals and organizations to replace the existing values of violence and greed with new rules for a more just and tranquil world community, where law and order is the practice rather than only a distant dream.