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MANNRÉTTINDI TIL UMRÆÐU Í ALÞJÓÐADÓMSTÓLNUM Í HAAG

Alþjóðadómstóllinn Haag
Alþjóðadómstóllinn Haag


Í vikunni var mér boðið að sækja, og reyndar einnig stjórna, ráðstefnu sem haldin var á vegum Institute of Cultural Diplomacy í samvinnu við Alþjóðadómstólinn í Haag í Hollandi en ráðstefnan fjallaði um  mannrétti og alþjóðarétt: "An Interdisciplinary Analysis of the Role of International Law in Promoting Human Rights."
Á fjórða tug mjög áhugaverðra fyrirlestra voru haldnir á ráðstefnunni en fyrirlesarar voru þingmenn víðs vegar að úr Evrópu sem hafa látið mannréttindi til sína taka, fræðimenn frá nokkrum Evrópulöndum, að ógleymdum dómurum bæði við Alþjóðadómstólinn í Hag, þar á meðal forseti og varaforseti dómstóldins og  dómarar við Alþjóðaglæpadómstólinn og aðrir aðilar innan þessara stofnana.
Dómararnir sem töluðu á ráðstefnunni komu frá öllum heimshornum og var fróðlegt að hlýða á mál þeirra og hvernig þeir mátu þróun mála.Bjartsýni var ríkjandi að heimurinn væri að þoka sér fram á við í þessum efnum þrátt fyrir erfiðleika sem við væri að etja vegna vaxandi spennu í alþjóðasamskiptum.Í hálfa öld var heiminum haldið nánast í gíslingu af Kalda-stríðs stórveldum og voru hryllileg ódæðisverk látin óátalin af þessum sökum. Eftir að Kalda stríðinu lauk opnaðist heimurinn sem betur fer að nýjuog fór nú að taka á stórfelldum ódæðisverkum. Þetta rakti ég í erindi sem ég flutti á fyrri degi ráðstefnunnar í Haag.
Í erindum sem flutt voru var mjög farið á dýptina í þessu efni og var mjög fróðlegt að heyra hvernig þau sem hrærast í innsta kjarna hins alþjóðlega lagakefis meta stöðuna.Fram kom hjá mörgum að mikilvægt væri að breyta valdakerfi Sameinuðu þjóðanna og draga úr áhrifum stórveldanna sem hafa neitunarvald á hendi.
Fleiri en einn vöktu máls á því hve miklu máli almenningsálit skipti við að færa út landamæri mannréttindanna. Þau væru hluti af menningu samtímnas, hún tæki breytingum þannig að skilgreiningar á mannréttindum væru breytingum háðar sem aftur segir okkur hve mikils virði mannréttindabárátta er! Jafnframt var bent á að þróun innan aljóðalagaumhverfisins hefði áhrif á löggjöf einstakra ríkja, þannig að boðskiptin væru í báðar áttir.

Hér að neðan er erindi mitt á ráðstefnunni:

ENFORCING INTERNATIONAL RIGHTS OBLIGATION: HOW TO ENHANCE INSTITUTIONAL LEGITIMACY AND CREDIBILITY

For centuries, attempts have been made to establish rules of ethically acceptable human conduct. This has, of course, been the task of philosophers, writers, academics and other interested individuals, ranging from Confucius to Aristotle and Plato, and from Mahatma Gandhi to Nelson Mandela. There have certainly been other and more negative voices in this generally positive choir of progressive thinking.  But, eventually, we end up recognizing who is singing out of tune.  Many religious beliefs have also remarkably similar definitions of the Golden Road, leading to a morally commendable life and the Golden Rule reminding us of our humanity: Do to others what you want others to do to you.

But the world of ethics is never a no man's land.  

The political and social frameworks we have created around our lives - municipalities, states, international organizations - can be turned to good as well as bad ends.  On the whole, however, I believe that we are living in a world, which is forward-looking - despite all the terrible setbacks - and seeking ways to be at one with our moral aspirations.  If we compare the state of the world a thousand years ago to that of today, there is no question that respect for the rights of the human individual, irrespective of his or her social standing -  is greater than it was in the past.  It is not that rulers of times long gone were never guided by high moral standards.    Thus, the powerful Caliph, Omar Ibn Abdel-Aziz, who ruled in the 8th century once received a request from the governor of Homs, now within the boundaries of present day Syria, to increase his annual income so that he could build a protective wall around the city. Omar's response was a decisive  "no." He said to the governor : "Fortify your city with justice; drive oppression from its streets!" Omar´s vision was that his empire should rest on solid ethical ground. Attempts to create a safe world order have, however, more often than not, been based on Realpolitik than on morals. Pacts based on power politics have been made between states throughout history, but as time has progressed, such attempts have become more ambitious and gradually encompassing also the human rights dimension.  To underscore this point, a brief glance at history is in order here.  We had the Vienna Congress in 1815 in the wake of the Napoleonic wars, deciding on the borders of the European map with regard to the interests of the victors - very much in the spirit of power politics.

The history of the Court of Arbitration, formally established in 1899 in this building,  dates from the close of the 19th century. Then with the establishment of the League of Nations in 1920 as a result of the Paris Peace Conference ending World War I, the first international organization was brought into being, which had, as its principal mission, to maintain world peace through mechanisms to settle disputes apart from addressing various issues of concern for the populace at large such as labour conditions, drug trafficking, arms trade and global health.  58 states eventually joined the League. It was, however, doomed to fail since it did not include all the major players in the international arena, most notably the United States and failed to muster any real political power to take collective action. Consequently it became paralyzed in the face of violations of its basic principles such as Mussolini´s wars in Africa, not to mention the rise of Nazism in Germany.  The diplomatic philosophy behind the League, nevertheless, represented a fundamental shift.  It is interesting to recall in this context the so-called Kellog-Briand Pact from 1928 on the Renunciation of War as an Instrument of National Policy. The pact, which was signed by the United States, Germany and France, received its name from the then Foreign Ministers of the United States and France who originally sponsored this effort to ban wars and replace them with peaceful settlement of disputes.  
The fascinating thing about the Kellogg-Briand Pact is the way, in which we see the moral world and the world of power politics reaching out for each other.  To be sure, it was a brief encounter and its idealism proved to be short-lived with the rise of fascism. But it was an experiment that showed that politicians were willing to explore new ways to ensure peace and stability.  The legacy of the League of Nations was clear in the minds of the architects of United Nations after World War II.  The high expectations and ambitions were reflected in the progressive Charter with its strong call for the respect of human rights.  There was also determination to face any violation of human rights, not to speak of genocide with justice.  The first steps were, indeed, promising.  Following the Nuremberg trials in 1945-1946, the Genocide Convention was adopted five years later and the International Court was established. Because of the ill fate of the League of Nations, a governing structure was established, with a Security Council where all the biggest stakeholders where represented holding the real reins of power with right to veto democratic decisions reached by the UN Assembly.

In other words, we ended up with an organization based on democratic aspirations, but under the heel of the Great Powers. What had been lacking in the League of Nations was overcompensated in the United Nations.  Such a structure was bound to fall victim to the geopolitical realities of the 20th century and the Cold War in particular. And this, indeed, is what happened. For decades, the United Nations, in effect, absolved itself from any responsibility in the realm of the most vile human rights violations, such as genocide prevention and punishment.  Decades passed without any international trials of war criminals and those guilty of taking part in genocides.  During the Cold War, the absurdity of the situation became so pronounced that none of the mass killings from the 1950s until the late 1980s were denounced by the UN as genocides. Many terrible examples of atrocities could be mentioned, such as the Cambodian genocide or the mass killings in East Timor, when the world turned a blind eye to the wipe-out of an estimated one-third of the island´s population by the Indonesian army.  In other words, after codifying its condemnation of genocide in a convention in 1948 and with  its ratification in 1951, the UN or the international community, in practice, condoned genocide.  It was not until the 1990s, when the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) and its counterpart in Rwanda (ICTR) that the Genocide Convention was revived as an instrument of international justice.  And the first time that the 1948 law was enforced was with the 1998 genocide convictions of Rwandan political leaders. Then the first state to be found in breach of the Genocide Convention was Serbia in 2007 by failing to prevent the 1995 Srebrenica genocide.  This development went hand in hand with the fall of the Soviet block and consequent thawing in international relations. Part of this positive development was the establishment of the International Criminal Court, which came into force in 2002. Some of the Great Powers still do not recognize its jurisdiction, such as the United States, China, India, and Russia, undermining its authority and claim of universality.  But all this is a sign of openings after the end of the Cold War. We still have the problem of individual Security Council members blocking measures not to their liking. Thus, the United States prevents any punitive measures against Israel in spite of UN resolutions repeatedly being violated, to take an example. Recently, we have seen the UN paralyzed in the Syrian crisis due to manipulation of the big powers.

All too often the democratic voice of the UN, as expressed by the Assembly and various committees and organizations under the UN umbrella, seem to say one thing, while the Security Council says another. I am interested to hear evaluations from the International Court of Justice on this theme, especially with respect to trends in the court´s verdicts and decisions taken by the UN power structure.
It is of great concern that there are signs that many of the openings in the late nineties and first decade of the new century now seem to be closing.  Therefore there is a need that democratic forces  rally  in the defence of just and morally acceptable ways of dealing with the problems of the world.  We must support the process initiated by then UN General Secretary, Kofi Annan, at the turn of the century, to establish the principle of Responsibility to Protect as a norm - hopefully to be legalized in one form or another - in the defence of people whose government is either incapable or unwilling to protect.
At the Institute of Cultural Diplomacy, we have discussed at length ways of strengthening this principle. We have also followed attempts by Brazil and others to find a middle ground when it comes to the interpretation and the implementation of this principle.  At the ICD, we have debated in what way we can encourage states to step up their ratifications of international commitments to human rights.  Moreover, we have initiated discussions on ways to enforce international human rights obligations agreed to in word but all too often not in deed. We have asked how the UN can be democratized and, thus, be given more credibility in the eyes of the world. If we cannot bridge the widening gap between the world of justice and the world of power, it will lead to the erosion of the legitimacy and credibility of the UN as the most important international organization.

The task is not to let this happen.