Campaign for U.N. Reform
North Park University
Chicago
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.
Thank you.