Campaign for U.N. Reform
North Park University
19 June 1999
Henry H. Perritt, Jr.
Dr. Stanton provided two foundation stones for what I would like to talk to you about. The first is personalism. I agree with his idea that each of us can make a difference in world affairs.
He also said to us, “Evil is not the strongest source in the world; love is. That’s how I keep going.”
Far too many people say that law can have nothing to do with problems in places like Bosnia, Kosovo, Cambodian, or Africa.
That is the wrong way to think about the World. Ancient ethnic hatreds exist everywhere. I grew up in the American South in the 1950s and 60s. I saw ethnic hatred at work there. But as Americans we were able—too late, but eventually—to construct legal institutions that channeled conflicts among ethnic groups into civilized dispute resolution, guided by rules of law, rather than spilling over into lynching, group murder, and ethnic cleansing.
That experience should shape our aspirations for the future world order, not blame on ethnic hatreds that manifest the darker sides of human nature.
I come to you this morning as a lawyer, and a lawyer’s job is to think about institutional structures that allow room for personalism—institutional structures that channel love, while suppressing evil.
I want to do five things. First of all I want to explain tension between two important strands in international law—sovereignty on the one hand, and protection of human rights and rule of law on the other. Second, I want to identify some gaps in the current set of international legal institutions. Third, I want to explain why NGOs are becoming as important as nation states in the dynamics of international politics and protection of human rights. Fourth, I want to explain why the Internet has such an important role in promoting human rights and rule and law and how it is altering concepts of sovereignty. Fifth and finally, I want to talk to you about the relationship between politics and law.
First, the tension
Consider what the U.N. Charter has to say about sovereignty.
Article 2 (4) reads:
“Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”
Article 2 (7) of the Charter reads:
“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”
These two articles, by talking about territorial integrity, political independence, and domestic jurisdiction, enshrine traditional ideas of sovereignty of states.
But listen to what Security Council Resolution 1244, adopted on June 10, 1999, says (this was the resolution authorizing implementation of the peace settlement in Kosovo):
“Authorizes the Secretary-General, with the assistance of relevant international organizations, to
establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo . . . . [T]he main responsibilities of the international civil presence will include:
* * *
“(b) Performing basic civilian administrative functions where and as long as required;
* * *
“(i) Maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo;
“(j) Protecting and promoting human rights;
“(k) Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo;”
This is a mandate for an international protectorate over a portion of a sovereign country. It is perfectly consistent with the U.N. Charter. Article 2 (7) permits “domestic jurisdiction” to be overcome by enforcement measures under Chapter 7.
But this is a watershed in international law. For the first time, a conflict drew in the international community entirely because of human rights violations. The international community has displaced sovereignty with the clearest possible formal decision to establish an international protectorate.
But the international community is not yet well equipped institutionally to deal with this watershed in international affairs. There are major institutional gaps.
The most important gap is in the effectiveness of the United Nations itself. There are important exceptions, UNHCR being the most notable one, but in general, the U.N. is inefficient, poorly prepared, and not sufficiently results oriented. As the Bosnian war escalated from 1992 to 1995 U.N. efforts at peacekeeping were disastrous. Institutional incompetence, and the failure to appreciate the importance of force in creating a climate for diplomatic progress, eventually required intervention by NATO, under U.S. leadership, to end the war. Then, after the Dayton Accords were reached , the U.N. was slow to recognize the importance of a sufficiently aggressive mandate for its High Representative or the need for a robust international police presence. Only when Carlos Westendorp succeeded to the position of High Representative was the mandate strengthened sufficiently to make the U.N. a meaningful force for progress toward a rule of law in a multiethnic state.
One hopes that the international community learned important lessons from Bosnia. The language of U.N. Security Council Resolution 1244 is encouraging because it authorizes a protectorate in Kosovo. But even now, as KFOR is doing a good job of establishing peace in Kosovo, the U.N. appears to be dithering. It did not require unusual powers of prediction to anticipate that the U.N. would be required to play a role in Kosovo, but it seems there were no meaningful contingency plans or organizational capacity to move quickly to establish the civil presence required by Security Council Resolution 1244. We can only hope that U.N. progress in this regard will accelerate in the days ahead and result in meaningful progress toward establishing law and order, an international police presence, and progress toward building indigenous democratic police and judicial institutions as well as economic reconstruction of the country.
A second institutional gap involves the absence, until relatively recently, of real adjudicatory institutions to apply international law. The International Court of Justice, though it does important work, and compliance with its decisions are much greater than many people recognize, really is an arbitration body to deal on a voluntary opt-in basis with disputes between nation states. It is not really an international court as most people understand courts.
But there is progress to fill the adjudicatory gap. The international criminal tribunals for the former Yugoslavia and for Rwanda enjoy sweeping powers. The Yugoslav Tribunal has done a far better job that the Rwandan Tribunal, but its accomplishments are incomplete.
They are incomplete in large part because of a third serious gap in the institutional tools available to make international law a reality.
This third gap has to do with enforcement. Courts do little good, domestically or internationally, if no one enforces their decisions. The inability to enforce arrest warrants issued by the Yugoslav Tribunal and the Hague is a well known shortcoming of the Hague Tribunal apparatus. The problem here in its most basic terms is the absence of any sort of international police capability. We have, at the one end of the spectrum, conventional military force, but these forces are not trained to perform domestic law and order functions, and in Bosnia—at least—military leadership was completely unwilling to back up civilian decision makers or to assist in enforcing decisions of international courts.
We all must work to develop useful concepts for an international police presence. There should be a standing staff, regular contingency and deployment plans, appropriate rules of engagement, and close integration with national and international judicial institutions.
We will have an opportunity to make this happen in implementing Security Council Resolution 1244 in Kosovo.
Understanding the institutional opportunities and challenges for promoting human rights against a backdrop of changing conceptions of sovereignty requires recognition of the enormous role that NGOs play in international politics, international adjudication, and enforcement of the decisions of international bodies.
The Rome statute on the International Criminal Court would not have come into existence but for the actions of NGOs. The delegates in Rome enjoyed accreditation from sovereign states, but in reality they were representatives of the NGOs who had moved the ICC concept along. Anyone who has been involved in negotiation of international environmental treaties know that NGOs are the animating force; not public officials of nation states.
As international adjudicatory institutions such as the Yugoslav Tribunal are established, it is NGOs, such as ABA/CEELI, the International Rescue Committee, and the International Committee of the Red Cross who help investigate war crimes and human rights violations and who translate judicial mandates into reality on the ground, as much is it is salaried employees of international courts. Thus NGOs play an important adjudicatory role as well as a political one.
NGOs also have taken up much of the slack in the executive and enforcement arena. At one point, less than a year after the Dayton Accords were signed, there were 950 NGOs active in Sarajevo, Bosnia, carrying out relief, judicial reform, and economic reconstruction activities.
When I was in Pristina, Kosovo last December, I attended one meeting convened by UNHCR at which there were 35 or 40 NGOs present. There also, it was the NGOs; not the U.N. itself, that was doing the work of refugee relief and attempting to stabilize the political and domestic order situations.
So when we think about the three traditional functions of government in the international arena—legislative (political), adjudicatory (judicial), and executive (enforcement), NGOs are the relevant force, more than traditional nation states.
Indeed, one would come to a more accurate understanding of the evolution of international law at the beginning of the 21st century by understanding the NGO phenomenon and ignoring nation states, than one would by ignoring NGOs and focusing on traditional concepts of sovereign states.
The fourth issue is how new information technologies, particularly the Internet, change concepts of sovereignty and advance new concepts of international human rights. In one respect, the Internet is not all that interesting. It is simply a new information technology. New information technologies come into the world with some frequency, and they always have an impact on international diplomacy. The telegraph changed the way wars were fought and the relations between diplomats and heads of state. Wireless radio had similar profound impacts. Television and radio broadcasting the 1930s were responsible for the totalitarian regimes of Hitler and Mussolini.
But the Internet is different. For one thing, it is inherently global. You can set up a Web page on a $2,000 computer, connect the computer to the Internet for $12.95 a month, and your publications instantly are visible everywhere in the world to anyone else who has connected a computer to the Internet. That kind of global reach is not true with Morse telegraphy, wireless radio communication, television or radio broadcasting.
The Internet has another important characteristic that distinguishes it from earlier information technologies. I said a “$2,000 computer.” That’s all you need to broadcast to the world through the Internet or to participate in political dialogue. That’s a lot less that it costs to set up a television broadcast transmitter, or to buy a printing press to publish a newspaper.
These remarkably lower economic barriers to entry for the Internet, compared with older information technologies, is enormously empowering for disfavored groups within domestic political arenas; it is enormously empowering for groups who want to form connections with each other across national boundaries; it is enormously empowering for people who want to create or maintain NGOs. Most people think that the Rome treaty for the International Criminal Court would not have been concluded when it was without Internet-facilitated communication. It is reasonable to suppose that mobilization of world opinion in favor of international intervention in Kosovo would not have been possible without the Internet—although television also obviously was important.
In other words the Internet makes traditional sovereign states more permeable, weakening many of their traditional powers, at the same time that it empowers NGOs in all three of their functions.
My final subject is the relationship between politics and law.
Law is a way of crystallizing political decisions. Legal institutions are mechanisms for carrying out political decisions.
The power of legal institutions depends upon their credibility and legitimacy in the political arena. If political officials who control enforcement resources have no respect for the decisions of formal judicial bodies, the judicial decision bodies will be powerless. That is one of the great truths that lie at the core of the effectiveness of the American judiciary. John Marshall, Chief Justice of the United States at the beginning of our First Century understood that judicial restraint was an important source of judicial power. In American law, judicial restraint is embodied among other things in the “political question” doctrine, which says that some matters are not fit for formal judicial decision making and must be reserved to the more fluid political institutions such as the United States Congress or state legislatures. The importance of judicial restraint and some adaptation of the political question doctrine are an important elements that must be embraced by the proponents of new judicial machinery in central and eastern Europe as well as those who seek to fill gaps in the adjudicatory machinery for international law.
Though some of you are likely to differ with this point of view sharply. I question whether indictment of President Milosevic during the bombing campaign over Kosovo was an appropriate exercise of judicial restraint. What exactly were international supporters of the court to do? We already were bombing Yugoslav forces; how were we exactly suppose to arrest President Milosevic pursuant to the arrest warrant?
Some people say that a mere decision for issuance of a warrant by an international court is enough; it doesn’t matter if its enforced. I don’t agree with that. Once in a while, the moral force of a bare decision may be enough to command respect for international law and order, but it can not be routine. Bare decisions command respect only when there is a regular possibility of actual enforcement through coercive means.
But I do not want to leave you with the impression that I think that only raw force matters in international law.
Courts exist to be refuges for the powerless. If you own a plantation or are a warlord in a failed state, you do not need courts. You only need courts if you may be victimized by the plantation owner or the warlord. So the establishment of courts and the commitment to make them effective is fundamentally a commitment to equalizing power, economically and politically.
Moreover, international law is powerful rhetoric. People talk much about the need for “political will” in international affairs. Political will is mobilized by political argument—political rhetoric. Being able to say, “We are doing this because an international judicial body has said it is the right thing to do” is a powerful additional argument to mobilize domestic political actors.
There can be little doubt that American public opinion as well as public opinion in other western countries was effectively mobilized in favor of intervention in Kosovo because people were able to say, “the Serbs are violating international law,” rather than by merely arguing that U.S. or German or Dutch or British economic or balance of power interests were at stake.
We have much to do in the further evolution of international law as a protection for the powerless against human rights violations.
I, like Dr. Stanton, believe in personalism.
You can make a difference acting as an individual. You can lend your voice to domestic political debates. You can help design new conceptions for adjudicatory institutions. You can insist that the U.N. become more effective. You can help people understand that enforcement machinery must accompany the development of judicial machinery.
That is why I have been so gratified to lead something we call “Project Bosnia” and “Operation Kosovo” over the last three years. These purely private, under funded, university-based initiatives have put scores of young people at the threshold of their professional careers in the position of understanding the power of their individual personalities. I have seen 24 and 25 year old law students sit down at the table with officials in Bosnia and Kosovo who are beginning to lose hope and give them new hope by bringing to them inexpensive Internet technology and basic conceptions of western rule of law.
I have seen Stu Ingis, at the age of 24, organize scores of law students and others to ship computers to those trying to make new law to Bosnia and to connect them and to inspire veterans of the Bosnian war three times his age with the force of his own charisma. I have seen IV Ashton, at the age of 25, talk major companies into supporting undergraduate engineering students and graduate students in law and business help rebuild major pieces of the Bosnian free press and judiciary. I have seen April Major, Randy Clarke, Mary Beth Goodman, Tom Beris, Steve Collens and Nicole Alexander watch as their commitment transformed the way international and national officials in Bosnia and Kosovo understood their own power.
To have this experience when you are 24 or 25, fundamentally changes the way you think of your potential throughout your professional career of several decades as an engineer, a manager, a public official, or a lawyer.
I welcome the opportunity to be associated with your efforts to build new institutional structures for each of us to fulfill our personal potential to help suppress the forces of evil.