Topic: Panel 2: Freedom and Responsibility in International Law

Panel 2: Freedom and Responsibility in International Law

Jean-Guillaume de Tocqueville
My name is Jean-Guillaume de Tocqueville. I’m the moderator of this panel and I would like to warmly welcome you all to this panel on Freedom and Responsibility in International Law. It is my pleasure to introduce the very distinguished speakers on this panel, actually coming from four different continents of the world, as we have Africa, Asia, America and Europe, whom I will introduce individually as they will start speaking.

On the basis of their background, culture and political environment, they will offer their views on how international law and rules attempt to guarantee freedom and responsibility in today’s world. As a lawyer, my experience is that unlike in domestic law, international law, is not as easy to apprehend. If you’ll allow me, I will start the debate with just a few very short reflections and questions.

First question: Does international law guarantee freedom and fundamental rights? We now live in a globalized world; everybody knows that. We finally have freedom to communicate, freedom to information, we have freedom of doing trade and business in integrated financial markets, and that’s the global world. But what about other fundamental freedoms, like freedom to live in peace, security and democracy, access to health and right to escape poverty, freedom to live on a clean planet. These are not, in my view, globalized and guaranteed everywhere.

Question number two: Do international legal rules involve responsibility? And in legal terms, responsibility means two things: it means accountability and it means enforcement. And the question is: Are fundamental law and decisions by international bodies, international courts properly enforced everywhere in the world?

The answer is not obvious. There has been progress, especially since World War II, and I think that the principles of the Universal Declaration of Human Rights are beginning to be enforced or continuing to be enforced, in some places by bodies like the International Criminal Tribunal (for example for former Yugoslavia, Rwanda), the International Criminal Court, or in suits—very important suits like the Pinochet suit—and so forth.

We now live in a world where stakes and threats are global—terrorism, corruption, AIDS, environment—and it is clear that governments can no longer bring national answers to these issues. It’s far beyond their reach. It is also clear, in my view, that the current set of international law is not adapted to bringing the right answers to the states. Rules are too scattered, they are sometimes conflicting, they are coming from many national or international sources, governments, global institutions, regional institutions, NGOs, global corporations, global unions. And these people are trying to set principles, governance, but it is not very precise and there is no democratic sanction of it. So maybe the direction would be for the states to accept the existence of a stronger, more respected set of international institutions—globalized institutions in line with the globalized world, able to propose and enforce, in a more coherent and uniform way, international law. But the states, of course, would have to give up part of their sovereignty and this is obviously a big issue. This might also be the reason why the reform of the UN takes so long to come.

So, many questions are open and the panelists are here to answer to them. And I would now like to introduce our first keynote speaker, Mr. President Lagos. President Lagos is a lawyer, an economist and he served as Chile’s president from 2000—2006. He’s renowned as having been instrumental in promoting democracy in his country. In April 2006, he took up his post as president of Club de Madrid. President Lagos, the floor is yours.

Ricardo Lagos
Thank you very much for the invitation to address this very distinguished forum. First, the question of international law. All of us knows that international law is as old as the formation of nation states. Second: the question of how the states relate to each other. Two basic principles have always been behind international law. These are the principles of equality and reciprocity. Therefore, if we want to address freedom and responsibility, the question is how we are going to apply the principles of equality and reciprocity vis-à-vis international law within a much wider framework of freedom and responsibility.

I don’t think that I am saying anything new. If I mention that the way international law has been evolving, as long as mankind has been evolving, in a much more globalized world, it’s a part of the history of the last fifty-sixty years with regard to international law. Therefore, today I would like to address the most important change that has occurred in the area of international law during the last fifty years. In the first place, I would like to address the question in two major areas:

The first area is when international law is not only a law applying to relations among states but also applies to individuals.

And second: How has the issue of international law evolved in order to establish multilateral institutions that have to deal with multilateral problems? It is not only a question of bilateral problems between two states, but it’s a question among many states on a multilateral level.

With regard to the first issue, what I would like to address is the question of human rights. After the Holocaust, after the 20th century’s dictatorships, after the 1948 Declaration of Human Rights, the right to talk about what’s going on in some other state with regard to the issue of human rights became a universal right. In other words, international law was not only to be applied to questions between states but also between states and individuals and the way that the states respect the rights of their people.

Now the question I would like to pose in today’s panel is: What is the nature, what is the scope of those rights, the question that our moderator just introduced? To what extent is the issue of human rights only a question of habeas corpus, only a question of personal liberty? Or should they include – in the way that we understand human rights – second and third categories, like the right to health, the right to have an employment, the right to have a shelter, etc.?

In other words, it seems that we are now in a process, where, for the time being, the Criminal Court of Justice and the Treaty of Rome are dealing mainly with the question of personal liberty... And still we are not in a position to go beyond that.

From my point of view, there is no doubt that in the 21st century the question of going beyond personal rights in order to have a more universal sense of human rights, is going to be a part of the discussion that we will have over the next few years.

To end this part I would also like to mention that the Treaty of Rome and the International Criminal Court were really milestones. Many people have been talking about that, in order to restore credibility in many countries, the time has come that more countries, especially the most important, should be part of the International Court. In very recent articles in the Harvard International Review, some members of Academia in the US have said that the United States should use some influence and participate in the 2009 review of the Rome Statute. In other words, they are saying that it will be extremely important for the United States to be part of the Court.

The second area where I do think that international law is becoming more and more essential has to do with the relationship between international law and the establishment of international multilateral institutions. Here I would say that responsibility means to take seriously the need to obey those institutions. And I would like mention two major areas of concern:

The first one: How are we going to deal with international institutions, whose major aim is to keep peace? We are thinking of the Security Council and the long standing discussion today about how the Security Council should be formed. Who should be the permanent members? Who should be the members that represent today’s world? And to what extent should the Security Council and some political and economic institutions represent the world of 1945? And therefore, how are we going to produce some kind of responsibility from the point of view of those institutions in today’s world?

With regard to economic institutions you can say something very much the same. We are thinking in terms of the Bretton Woods Institutions, the World Bank and the International Monetary Fund. The problems that these two institutions were supposed to address then were quite different from today’s world. The World Bank was primarily called the International Bank for Reconstruction and Development, and reconstruction was the Marshall Plan in Europe. This is what the World Bank was supposed to address.

And the International Monetary Fund? After the gold standard in the past, it was supposed to be dealing with Asia or the fair rate of exchange between different countries. Now, what is the role of the International Monetary Fund today? And here, then, is something very interesting. In today’s world, what is the actual financial turmoil? Has somebody thought that was possible to think in terms of the International Monetary Fund? Nobody. The Basel Agreement is much more important.

Nevertheless, I would like to point out two principles here that, I think, are extremely important. How we’re going to take into account, with regard to economic institutions, the realities of the difference between different economically powerful states, or the difference between some small states, with the equality principle of international law? How are we going to simultaneously combine the equality principle – that means that the United Nations in their Assembly is one country, one vote – but the political principle has changed, because the part of the realistic political power in today’s world, the Security Council, has some five permanent members with a veto. So you try to make a compromise between the equality principle of international law with the principle of what the responsibility is of those bigger countries. To what extent, when you are talking about economic institutions again, are you going to have this kind of question? And therefore, what do reciprocity and equality mean in terms of voting power in these economically international institutions?

In the Charter of the UN, the solution to this problem was supposed to be that these two institutions have to report to the Economic and Social Council of the United Nations. Nevertheless, even though it’s still that way normally for these institutions, the degree of autonomy they have is much bigger than the report they are supposed to present to the Economic and Social Council. So I think that here is an area that in the near future should be addressed in a better way.

The other area that I would like to mention has to do with some other world problems that have to be tackled at the global level or you are not going to be able to tackle the problem at all. And this presents, from the point of view of international law, a tremendous change vis-à-vis the traditional way of thinking about international law. One of those areas that I would like to mention is the area of the World Trade Organization. That is the major organization that deals with trade. Two questions arise before us: the question of accountability and the question of enforcement in this organization, because in the question of enforcement, this is the only organization, as far as I know, where sanctions mean sanctions. Therefore, every country has to meet those obligations in terms of trade.

It’s a tremendous responsibility. Nevertheless, with regard to trade negotiations, what are freedom and responsibility? If we apply the principles of reciprocity, what about subsidies by different countries? What about subsidies in the internal establishment of each of the different countries, vis-à-vis the principle of reciprocity? And therefore I ask, how are we going to be able to exercise those principles? How are we going to have responsibility vis-à-vis the other two principles and reciprocity and equality at the same time?

It is very important when we have a situation where those institutions are in a stalemate, they have been able to a break through in the very recent Doha Negotiations. What are the responsibilities of the major countries in this area, and what extent the process of doing negotiations with three blocks – the United States, the European Union and the so-called developing countries (being represented by Brazil and India) – to what extent is this the only way to do negotiations? And to what extent are some other countries, like the African countries that have a very different historical perspective, well represented or not? In other words – is the way that we handle changes in international law, vis-à-vis trade negotiations, realistic?

And this takes me to another subject, which has to do with environmental institutions, and, very quickly, what the international law has to do with that. In today’s agenda it is very closely related to the question of climate change. As you all know, I have the honor to be the special envoy of the United Nations’ Secretary General, but what I would like to say here, from the point of view of international law and responsibility, is very short.

First: it seems to me that from the point of view of scientific knowledge, very few people today question the scientific findings that it is because of what we human beings have been doing during the last 250 years (since the beginning of the industrial revolution), that climate on our planet started to change.

Second: the good news is that the cost addressing the issue of climate change is smaller than not addressing the issue and trying to accommodate it later, trying to mitigate the problems. Nevertheless, what is the responsibility here? How are we going to interpret the responsibility from a historical point of view and from the point of view of equity? And here I think it will be extremely important to understand that if we want to have another protocol, after Kyoto, then it is not possible, with responsibility, to keep talking about developed and developing countries. And it seems to me that all countries are responsible and all countries have to take action. It may be that those actions are going to be different. It may be that among developing countries we may need to have some differentiation, particularly in the case of those countries that have very rapid growth.

I don’t think that it’s fair, to use a very personal example, to have Chile in the same category as Haiti and to ask both countries with so different per capita income to take the same kind of action. Therefore, responsibility here means that some countries have to accept that because they are much more developed, they have to take bigger and longer steps than other countries. Therefore, it seems to me that the only way to advance is to have the ability to address the issues in different ways. All that I’m trying to say is that, in addition to this evolution in international law, there are some other areas that I would like to address in a very quick way, and it has to do with the so-called international network that has been appearing in addition to existing bilateral institutions.

What about the G8? What about the G8+5? The G8 or the G8+5 are just the answer of the major countries to a very concrete economic condition that they want to address. But it’s not only a question of having networks of different countries that are not formally in those multilateral institutions. As Anne-Marie Slaughter from Princeton University says in her book, A New World Order, this natural number of international networks is producing some kind of international law.

For instance: Eleven Central Banks got together in Basel, Switzerland, and decided what the conditions and policies should be, and how much various banks have to increase the volume of capital they are going to have,. and all the banks in the world accepted the decision taken by the committee in Basel. What is that? Is that international law? No. Nevertheless, there’s a network so powerful that it is in a position to address the global problems.

Another question. What is the responsibility of those banks? Or, if you are a president of a country, what is a president going to do these days? The first day, to see what did the Financial Times say about the country risk of that country. And who is going to put the country risk? Those private institutions on Wall Street or some other capitals of the financial world? In other words: what is the responsibility? And let me tell you, it’s extremely important, the country risk assessment, in terms of what rate of interest you are going to be paying.

Therefore, we are addressing some global problems, and the question of freedom and responsibility is becoming more and more important. Why is it that we are going to accept this evaluation of country risk and not this other? I’m not saying that it’s unfair. All I’m saying is that quite a number of institutions are beginning to emerge. And that is why I think that the draft declaration for today’s meeting is very accurate:

“The individual state is unable to guarantee security for citizens against the consequences of factors, such as: climate change, terrorism, mass migration and financial shocks. The ability of a state to minimize negative development and to maximize positive development in the interest of their citizens has changed fundamentally.”

And I would like to conclude by saying that we are going to live in a world that is going to be more globalized. It’s not a question of whether globalization is good or bad. Globalization is here to stay and we have to be prepared for that. But then the question is: How are you going to live in a globalized world if that globalization process will not have fair rules? In other words: Where and how is international law going to deal with major areas in a globalized world? Therefore, I think that freedom and responsibility in international law have also to do with how much freedom and responsibility we are going to have in order to have a global world that is going to be more global but at the same time much more fair than today’s world. Thank you very much.

Jean-Guillaume de Tocqueville
Thank you very much, President Lagos. I think that you’ve raised very important questions: Is there a hierarchy between human rights, is it possible to draw one very important question right now, the debate on the update of international institutions with big governments, especially in the business area... The IMF has a new president right now. He promised a lot of changes, and we will see what he comes up with. And also, if we have time for discussion, it would be interesting to know what you are doing with Club de Madrid. I think that in a moving environment like this, the power of influence, the power of peer-to-peer advice is obviously something extremely important.

Let me now turn to Mrs. Shirin Ebadi. Mrs. Ebadi is an Iranian lawyer, a human rights activist, and founder of Children Life Support Association in Iran. In 2003, she was awarded the Nobel Peace Prize for her efforts to promote democracy and human rights, especially women’s and children’s rights.

Shirin Ebadi
I am very happy to be able to take part in our discussion at this forum. First of all, I would like to thank President Havel and all those people, who have organized this meeting. Thank you all.

Dear friends, since time immemorial, the relationship between governments and religion was subject to a number of discourses among philosophers and intellectuals. There was a group that believed that the government had acquired its legitimacy through religion and thus has been entrusted to protect its people’s faith and religion. This conflict in the relationship between religion and government dates back to centuries ago, to the time of the European Renaissance. The result of this was the separation of the state from the church. But in the East, and in particular in Islamic countries, this conflict between religion and government has not been completely solved. And today it represents a basis for further conflicts. The pitiful state of democracy in most Islamic countries is related to this particular idea, namely that Islam is not compatible with democracy and human rights. Of course, Islam is what governments present as their ideology. While in the other interpretation and direction followed by other Muslims, this is totally unacceptable. In such a system, whoever opposes the government is considered to be an enemy of Islam, and political opponents are then forced not to speak up. As a consequence, people have no more strength to resist such governments, because it is always easier for man to disagree with the worldly laws rather than oppose the religion of their forefathers.

Of course, any abuse of this ideology is not a Muslim speciality only. We must not forget Stalin’s camps, or the bloody events that ended Prague Spring, or the killing of students in China, where the explanation offered for these cruel deeds was Marxist ideology. In the Middle Ages, Christians committed a lot of violent deeds. It was the Christian religion that also authored to so called God-rules. Modern Muslims have created a united Front, irrespective of the political borders of the countries they come from. This united Front of Muslims, coming from different nations and observing Islam, have stood up against the self-centred Islamic governments. This is a very good sign for the Muslims. This united Front has no name, it has no leader, it has no offices, or chapters. Its place is in the very thinking of Muslim intelligence and intellectuals, who are still observing the ancient customs that respect democracy and do not wish to listen to untruth and would not allow any oppression.

Islam is a religion of equality; the holy Koran often speaks of this fact. And it is written in the Koran, that you may not and must not force your faith, your religion, on somebody else. Unfortunately, this is something which is being done by various Islamic governments. Laws are adopted that go against these holy principles. I may say that in my country we have a law that says that when a non-Muslim dies, and there is one person in that family who became a Muslim, then this one person will inherit all the property of this person. And all the others, since they are non-Muslims and since they observe the faith of their ancestors, are not entitled to any inheritance.

Another example: In my country, Iran, if a Muslim is killed and the family of that Muslim does not forgive the perpetrator, than the perpetrator of any other religion will be condemned to death. But if the murdered person is not a Muslim and the murderer is a Muslim, then the most severe punishment would be ten years imprisonment. In other words, the murder of a non-Muslim is a lesser crime. Unfortunately, this is the situation not only in Iran, but in many other Islamic countries.

Ages ago, at the time when it was a custom to bury daughters alive on the Arabian Peninsula, Mohammed kissed the hand of his daughter Zahra and proclaimed her an important human being. In the 21st century in many Islamic countries, like Iran and Saudi Arabia, we may observe that the law stipulates that the value of the life of a woman is half the value of the life of a man. This means for instance, that if a car kills or injures a man and a woman on the street, than the indemnation for the woman would be half of that for a man.

To tell the truth, the problem does not lie in the core of Islam. But what is a big problem, is the fact that Islamic governments, for reasons of their own, are not interested in having Islam interpreted in the spirit of democracy and human rights. From this point of view, political culture and other cultures, governing Islamic countries must be transformed to allow understanding of the social truth with open eyes. It is necessary to adopt laws on the basis of contemporary need and laws that are also compatible with the Islamic spirit.

It is necessary to prepare important steps for this cultural change. We must instruct the people in Islam correctly. We have to learn active Islam, we have to teach people that it is possible to be a Muslim and at the same time to respect human rights and democracy. We have to emphasize to Muslims that the key to paradise is not in the hands of the Islamic government and that any act of this government, performed under the veil of Islam, is not an Islamic one. We have to inform the Muslim youth to prevent its influencing by fundamentalist groups. We have to emphasize that they cannot enter paradise by suicidal attacks. In this way we might expect a true Islamic uprising, not terrorism. There are other groups that oppose such non-democratic thinking, groups that are trying to explain the true foundations of Islam. To show the world that Islam and its basis is not terrorism. It is not possible to promote one’s view as the clash of cultures. The active Islam, the Islam that respects democracy, the Islam that believes in cultural pluralism, the Islam that respects human rights.

The Fundamentalists use Islam to justify their attacks, and the enemies of Islam point to the terrorists to justify their contempt for Islam. And this actually is what the silly friends and clever enemies of Islam have in common. It is really important to understand this, especially today, in some countries, where Islamic parties and groups were elected to power. Democracy is the government of the majority. But what about the majority, which came to power in free elections, as is the case of the government of the Islamic Republic of Iran, which gained power in the spring of 1970 by referendum. In other words: to win an election does not yet mean democracy. Democracy has a framework that governments must observe. And the framework of democracy is the rule of human rights. This means that the majority, which won power, may rule only within the framework of human rights.

No majority that acquired power may, under the pretext of faith, oppress half of society (that is women), deny its opponents free speech and freedom of expression. And it may not ignore the rules of human rights. In other words: governments do not acquire their legitimacy in elections; this is acquired by the voice of the people and by support of human rights.

And the last point: Islamic governments must not misuse the name of Islam. On the other hand, Western governments must not misuse their concept of democracy and human rights as a pretext for attack on other countries. The people of Afghanistan remember how the United States provided financial aid to the Taliban, to the extent that the Taliban gained control of the country. After the liberation of Kabul, only two countries officially recognized Afghanistan— Saudi Arabia and Pakistan—faithful allies of the United States in this region. The Iranian people remember that after the military attack of Saddam Hussein against Iran, the United States and its allies helped Saddam and supplied him with military technology. At that period, Donald Rumsfeld travelled to Baghdad and offered his friendly hand to Saddam and assured Saddam that the United States would help him.

Here I would like to ask: what is the difference between the dictator Saddam and other dictators, dictators in Burma, for instance? Why has the United States attacked Baghdad only? The answer is obvious. Iraq is rich in oil. Not so Burma. I am not trying to say that we should attack Burma. I am against any kind of war. But I would like to use this comparison to show how the name of democracy can be abused.

Faith, ideology, democracy, human rights. All these are sacred concepts, sacred words, which we must liberate from the prisons of the government and give to the people. And we must not allow these concepts, these words, to be abused by political powers. Let us extinguish the flames of war, let us disseminate the seeds of friendship. This war has no victor. I wish peace to you and to all humankind. Thank you for having patiently listened to my words.

Jean-Guillaume de Tocqueville
Thank you very much Mrs. Ebadi for having addressed this crucial issue of religion and human rights in such a moving and beautiful way. It also poses the question of the universality of human rights and we know that, for example, the Universal Declaration of Human Rights at the UN has been criticized by some Muslim nations, saying that it doesn’t really reflect their notion of human rights. So this is a very, very important issue and thank you for addressing it. Let me now turn to professor Mahbubani. Professor Mahbubani is the Dean of Lee Kuan Yew School of Public Policy at the National University of Singapore. Before that he was a diplomat, in particular in the US and at the United Nations, and he also served as the president of the UN Security Council. Doctor Mahbubani, the floor is yours.

Kishore Mahbubani
Let me begin with a simple story. It’s a true story, which I hope will illustrate one of the big points to make in this discussion. In 2005, I published a book called Beyond the Age of Innocence—Rebuilding Trust within America and the World. In 2006, the Financial Times did a review, a half-page review. By the end it said: “Don’t read the book, forget about it, it’s another anti-American book.” Two or three weeks later I was in Turkey and I met my Turkish publisher. And I asked my Turkish publisher: “So when is my book coming out in Turkish?” She said: “Well, it’s all translated already.” I said: “Great, but when is it coming out?” Than she said rather squeamishly: “We have a problem.” I said: “What’s the problem?” She said: “Well, you know, the mood in Turkey is so anti-American.” I said: “Yeah?” And she said: “You know, your book is so pro-American that we cannot publish it in Turkey.” A book that the Financial Times describes as being anti-American is too pro-American to be published in Turkey. And that’s an indication of how big the divide is becoming, sadly, between the West and the Rest.

I make this point because in this conversation here today, I think the one big danger we face is that you might have a very smug, complacent, self-satisfied conversation among Western intellectuals, saying: Isn’t it wonderful that we support freedom, we support democracy, we support human rights and look at the rest of the world, how uncivilized it is. It hasn’t caught up with us. The tragedy is, that while the rest of the world has progressively become more intelligent, more observant, more thoughtful, the West is becoming more complacent and inward-looking. Now I don’t say this with any sense of pleasure. I’m not happy this is happening. But I’m stating this as a matter of empirical fact, which can be either verified or denied through sociological surveys.

But there’s a growing gap between the conversations that the 900 million people who live in the West have about the world and a conversation that the 5.6 billion people who live outside have about the world. And if this gap continues to grow, then I think the world is going to head towards a more dangerous destination.

But the message I want to give to you today is the message of hope. I think that this gap between the West and the Rest can be narrowed. And I’m going to suggest three points on what needs to be done in terms of analyzing and understanding the situation.

Point one. I think we must begin by understanding that the Western project of international law was a huge gift to the rest of the world. Before 1945, before the United States created a rules-based order, the world was a much more dangerous anarchic place. After the establishment of the UN Charter and all the institutions that President Lagos spoke about, the world has fundamentally become a more orderly place. And it’s a happier place for small states like Chile, Singapore, the Czech Republic and others. And we must recognise this. Similarly, the Universal Declaration of Human Rights is a huge gift to the world. The fact that we, as the world, can come together and feel the pain and suffering of Aung San Suu Kyi and sympathize with her, indicates how universalised the principles of human rights have become, how much these principles have entered our souls. So clearly, the Western project on international law has been a huge gift to humanity and humanity needs to send a big thank-you note to the West.

Point two. Now who is endangering the Western project? And here I’m going to give three examples to illustrate how the Western countries, which were once the custodians of international law, have sadly begun to retreat from their old principles.

I can tell you that the world was shocked that in March 2003, the United States and the UK proposed a draft resolution, seeking legitimacy for the invasion to Iraq. They failed to get legitimacy and they went ahead and invaded Iraq. And this is why Kofi Annan said that the war is illegal. How can the biggest custodians of international law, the US and the UK, themselves become the principle violators of international law? And why was there so little outcry from the West in response to this?

Second one. Human rights. I can tell you it came as a huge metaphysical shock to the rest of the world when Mrs. Irene Khan, the head of Amnesty International said (and I quote): “Guantanamo is the Gulag of our times.” It is the Gulag of our times because under all the laws, when you’re under detention, you’re either protected by domestic law or international law. The inmates at Guantanamo have no protection under American domestic law and no protection under international law. The United States created a legal black hole. And this morning at the session on Freedom and Responsibility in Politics, it struck me that only one of the speakers, Mr. Gerhard, pointed to Guantanamo. And I can tell you, the effect of Guantanamo was massive on the rest of the world.

Third example. If you want to demonstrate that the West believes in international law, you must apply yourself to the hard cases, not to the soft cases, which work in your interest. Apply them to issues where you must make painful sacrifices. And here I can tell you that if you want to promote international law, and you want to pick one litmus test issue, I say pick the Middle East peace process. Apply it to the Middle East. Because that’s where you have to make painful decisions. And I speak, by the way, as a friend of Israel. And I tell my Israeli friends: “If I see you walking towards a cliff, do I say proceed, or do I say stop?” In the long run, it is in Israel’s long-term interest to give up its 40 years of illegal occupation of the West Bank and Gaza. And I’m glad my good friend Vartan Gregorian has reminded me that Ben Gurion said that the West Bank would be a cancer for Israel and the Middle East. So you have to apply yourself to the hard cases.

Now this brings me to my fourth and final point. Is all lost? I say no. The good news is that at the time when many Western countries may be backing away from their support of international law, the rest of the world is embracing it with much greater fervor. What you need today is a new social contract on the basis, and here I’m glad that President Lagos said it must be on the basis of equality and reciprocity. If you want to create the rule of law, it must apply to the most powerful states and to the weaker states equally. Every exception the United States creates for itself is an exception it opens for others. That’s very important.

And here I hope that what we need to hear from Western voices is the same kind of courage we’ve just heard from Mrs. Shirin Ebadi. I must say I was amazed at how openly she spoke of how Muslim laws discriminate against non-Muslims, and how unfair that is that you have one punishment of death for non-Muslims and a punishment of ten years for Muslims. That’s unfair. It’s not equal. When are we going to hear Western voices speaking with equal courage? When the Western countries themselves begin to have double standards? And if you can have, in the West, the same degree of candor as the kind that Mrs. Ebadi is demonstrating, then I think we can protect international law in the 21st century. Thank you.

Jean-Guillaume de Tocqueville
Thank you very much, Professor Mahbubani, for this extremely clear and concrete rendering of the evolution of international law.

Let me now turn to Vojtěch Cepl. Vojtěch Cepl is a former justice of the Czech Constitutional Court and he is also the principal drafter of the Constitution of the Czech Republic.

Vojtěch Cepl
It’s a pleasure and honour to speak at this conference. Because I have to be succinct, I will be abstract. International law is a law among the states. Subjects of these legal relations are the states, and therefore the concept of responsibility belong to the persons and it is not adequate in connection with the state. The state is, by the way, fiction. But I want to avoid here a big discussion about what the state is. I’m not saying that international law is useless, because there are many areas where it is a blessing to mankind, especially in specialized areas like the law of the war, air and sea transportation and many others. But basically, the most hopeful development is penetration of what I would call trans-national law, which is the law among the people who are from different states. It’s developing rapidly with globalization, especially in the commercial law. But it’s spreading now into all branches of law.

Deeper base of this development is the revival of the old idea of human rights. Mind you, the concept of human rights used to be a synonym for the natural law in the Middle Ages. It is also a success of the theory of natural law, the belief that the law should be connected with the culture/civilization, with the system of the spontaneous rules of human cooperation and coordination. But there we are facing a new problem. I will use the concept of the clash of civilizations, which is not probably popular in this audience. But the fact is that there are some rules of human conduct which are common to all civilizations, but there are other rules which are different. Indeed they define characteristic of the different civilizations. But the debate between Francis Fukuyama and Samuel Huntington was presented here in the past Forum 2000, today we should concentrate on those rules that are common.

And than we have again several problems. One of them is the enforcement of international law. There are people who are saying that international law doesn’t exist, because it doesn’t have instruments for the enforcement. It is too pessimistic. There exists self-help in societies where there is not a state power to enforce the rules. An example is the ostracism.

Another problem is that the concept of democracy, on which international organizations are based, means in the narrow sense a majority rule. It automatically leads to the government of imperial superpowers, or the big powers. The world was organized especially in Europe, until recently, as a concerto of big powers and clashes between them. Small countries were victims and objects of those changes.

To be short, I think the rule of law in international relations is looking for common rules, they are more important than building the institutions based on the rule of majority. I believe that in the nearest future the international system is developing hopefully from international law among the states towards the trans-national law among the persons. Thank you for your attention.

Jean-Guillaume de Tocqueville
Thank you very much, Vojtěch Cepl. Let me now turn to Trudy Stevenson. Trudy Stevenson is an MP in the Parliament of Zimbabwe, in the opposition party. She’s also the founding member of the Movement for Democratic Change in Zimbabwe. Mrs. Stevenson.

Trudy Stevenson
It’s an honour to be here and I would like to thank President Havel and the Czech Republic for inviting me and for giving us in Zimbabwe and other countries, which are struggling for democracy and freedom, the courage to keep going, because it’s a difficult task.

I’m not a lawyer, so I’m going to talk simply about Zimbabwe’s post-liberation experiences in freedom and democracy, or the lack of those—freedom and democracy. As you know, Zimbabwe is in fact a free country; we gained our independence in 1980 through a very bitter liberation struggle. Many thousands died in that struggle, and when independence came, Mugabe was told: “You have inherited the jewel of Africa. Look after it.” Indeed, Zimbabwe was, and in some way still is the jewel of Africa. We have superb infrastructure, natural resources, the best educated people in Africa, excellent medical facilities and so on.

And at independence in 1980, one US dollar was on a par exactly with one Zimbabwe dollar. Now however, you need 500,000 Zimbabwe dollars to buy one US dollar. 4,000,000 Zimbabweans out of 12,000,000 have fled the country. At least 80% officially, and more probably 90—95% of people are unemployed. 4,000,000 will need food aid this year, when at independence we were the bread basket of southern Africa. Currently, half the time in the capital city, there is no electricity, no water, no food in the shops. So what went wrong with our freedom? And why?

I believe, that there are two reasons. Firstly, that the colonial regime actually failed to prepare the new leaders for freedom for various reasons. There are subtexts; they actually wanted them to fail, to some extent, sadly. They were complicit in rigging the 1980 election, for their own reasons. And there were many naïve international agencies, who believed that Zimbabwe would succeed, simply because that was right. However, it didn’t happen.

That was the first reason. And secondly, there was a failure of the military structures, which had fought for freedom, to transform themselves into a civilian government. Again there are subtexts: they failed to see the need to transform from military to civilian, they believed they were actually entitled to rule Zimbabwe as a military system. And also their training by the supporters, the main supporters of the liberation movement, being China and Russia, ensured that they had a belief in the one-party state, centralized power, a command economy and so on. And there was also a lack of coherence, by the way, between this military liberation movement and between the traditional leaders in Zimbabwe, the traditional culture, which, sadly, had been misused by the colonial regime for its own purposes, and continues to be misused.

Both of these reasons for failure led to the consequent failure of Zimbabwe to build strong institutions to support democracy and ensure proper separation of the three pillars of government, resulting in almost total subordination of judiciary and legislature to the executive, particularly Mugabe himself. And there was also a failure of ordinary citizens to realize that they have the right and the duty to participate in their government. And part of that failure is caused, sadly, by the failure of our education system. Several people mentioned, in the earlier session, the importance of education in freedom and responsibility. Our education system is still based on rote learning, the right answer. At our university, the main one, which is basically closed now, all you have to do is photocopy the same book, to answer in the same way the question that has been posed to you; otherwise you will fail your exams. Not the recipe for democracy.

The result of all this is, as I have stated, in our economy, and so on, but also that we have now the trappings of freedom. Ostensibly we are a democracy. Indeed, there are 48 members of the opposition, MDC, of whom I’m one, in parliament. I am allowed to travel. Here I am. I’m a member of the opposition. So you think Zimbabwe is free. That, however, serves the dictator Robert Mugabe’s purposes very well. Because the international community, even here, is concentrating on Burma, Aung San Suu Kyi is not here, on Cuba and the others, and you have forgotten about Zimbabwe, where we are really struggling. And that is deliberate.

Also there is huge corruption, there is the lack of the rule of law. We have a police state, there are spies everywhere. Everyone is afraid in Zimbabwe to speak out. We’re not only afraid, but we are weak from the HIV-AIDS pandemic and we’re hungry. There’s no food. People are queuing for four hours in Harare to buy one pint of milk, as I speak to you. We don’t have the strength any more to fight. We don’t have the strength to go out into the streets, as even the people of Burma are doing right now.

The government is deliberately irresponsible, also in its political actions, for example the land invasions of 2000, which were not about distributing land to the majority at all. It simply used that for cynical reasons to retain power. That was the only reason. Then, in 2005, six weeks after the election, which was rigged, Mugabe organized the so-called Clean-up Campaign— Operation Murambatsvina—to disperse the urban poor, North Korean style, into the countryside, so that they could not organize to challenge that unfair election.

Most recently, we have the price war. In June 2007, the government said we’re going to halve the price of all the food. And the result of that is that there is now no food to be had in the formal market. You have to go to the black market, and if you are lucky, pay ten or twenty times the official price to find a basic item of food. And most recently the Indigenization Bill, which now takes us full circle, so that we have two classes of citizen in Zimbabwe—the so-called indigenous, which means the black citizens, who can own a majority share in any business, and the minority class, the white citizens, who are precluded from owning the majority of any business. So we have come full circle.

Had a line been drawn, early on, soon after 1980, by the international community, as well as by the citizens of Zimbabwe, before things became really bad, all of this might have been prevented. And so yes, Mugabe is responsible for criminal destruction of the economy, the destruction of our families. Every family is divided, with at least one person earning real money somewhere outside the country, and the rest in Zimbabwe. But Mugabe and his government were allowed to get away with it.

And so I believe that there is responsibility on all sides. I would also like to reaffirm what has been said this morning. The United Nations needs serious transformation. In our view, it is not helping the people of Zimbabwe. And that needs to be addressed. Our neighbors need to close down the Old Boys Club, where they protect a member of that club because of the colonial past. And most importantly, the issue of race needs to be opened up in Africa and interrogated, because it muddies the water, the waters of issues to do with freedom and responsibility, when you put the race issue into it.

Finally, I appreciate a statement by the Czech Minister of Foreign Affairs, here this morning, asking delegates to consider issues like Zimbabwe and what they should be saying about Robert Mugabe, and so on. And I would appeal to this forum to add to the list of Burma and Cuba the issue of freedom for the people of Zimbabwe, and indeed other countries, which do not yet offer their citizens freedom. Thank you.

Jean-Guillaume de Tocqueville
Thank you very much, Mrs. Stevenson, for this impressive depiction of the situation in Zimbabwe. I think it is good to remind everyone that there are many problems there as well. Let me now turn to Mr. Dienstbier. He was Minister of Foreign Affairs and deputy Prime Minister of Czechoslovakia. He was also a UN special envoy for the situation in former Yugoslavia.

Jiří Dienstbier
As we are in Prague, I will speak Czech.

My first remark is that the issue of freedom and responsibility in the context of international law is extremely important, because international law is not enforceable on those who violate this law. But what is worse, it is often violated by countries that have assumed duties under this law. Especially large powers tend to act on their own. Currently we see it, for instance, in the refusal to participate in the universal strategy of confronting global warming.

My second remark is that very often international law is not respected at all and is circumvented under different pretexts. In the first Gulf war, the Security Council approved the intervention, the second time it did not. And yet the intervention in Iraq took place. Now I feel that another violation is being prepared—some powers are trying to achieve the recognition of independence of Kosovo. In spite of all the fighting and bombing, a civil society has not been founded, the foundations of a democratic political culture have not been built. We have not succeded in facilitating the return of those who fled the country, and so on, and so forth. The forces urging the recognition of the independence of Kosovo ignore the fact that it would be an open violation of international law. The Helsinki Final Act allows the change of borders in Europe only if all those concerned agree. Moreover, the UN Security Council resolution, which marked the termination of the military operations against Yugoslavia, recognized Kosovo as part of Yugoslavia.

My third remark concerns double standards, both in the application of international law and in the application of human rights. There are many examples I could quote here. We want to fight global terrorism, yet it is obvious that the world has so far not been capable of agreeing on the strategy of this fight. So now and then, a certain action is taken, pre-thought, without thinking of the consequences. Look at Afghanistan. There it was necessary to liquidate the bases of terrorists, but then suddenly the attention, or the focus on Afghanistan, weakened, and today we see coming back there phenomena that we’ve already managed to suppress at the beginning of this fight.

Another problem arises from ideological justifications. Very often we can hear devious arguments, like axis of evil or the goal of promotion of Western democracy ad absurdum in countries where people have no idea what this concept means. We can help to create such an awareness, but it is not possible to believe that we can enthrone democracy by military intervention. In 2003, I was in America as a Visiting Professor at Brown University. Many Americans understood that the intervention was wrong because nobody knew what would happen afterwards. Nobody knew what the safeguards for the future were.

The terrorists manipulate the population that lives in dreadful conditions. They utilize not only national traditions, religion and so on, but they very well know how to make use of this double standard kind of approach to different situations. Today, for instance, when they use Islam, we hear of the clash of civilizations. But I think we should rather speak of the clash of ignorance and very often of a clash of arrogance, because both sides very often behave according to this yardstick.

The Euro-American civilization has created the highest quality of life of its citizens during its development. But the present American administration is now decreasing the value of its example by forcing its values as superior to others with a lot of hypocrisy and double standards. As Thomas Friedman wrote in the New York Times: “Wicked people hate us for what we are, good people don’t like us because of what we do.” It is sad to hear when George Bush reacts to reports of thousands of dead Americans in Iraq by saying that there are more enemies that were killed. Or more civilians? Is this a civilized answer, is this a politically correct answer, to argue that lives of our compatriots are more valuable than the lives of people who from our point of view are less enlightened?

My last point relates to security measures in trans-Atlantic civilization which do have a tendency to limit civil freedoms by pseudo-democratic methods. Of course, it is necessary to provide security to citizens. But we have to be careful not to work for those who want to destroy the “Western Satan” by abandoning our values. They will be respected only if we prove we have not resigned, that the only thing we should fear is fear itself and only if we convince the others that we do not apply different standards to ourselves and to them.

Thank you for your attention.

Jean-Guillaume de Tocqueville
Thank you very much, Mr. Dienstbier. Last, but not least, let me turn to Sir Robin Christopher. Sir Robin is Secretary General of the Global Leadership Foundation, which is an organization of former statesmen, advising current governments, based on the experience of their members. Sir Robin.

Robin Christopher
Thank you, Mr. Chairman. Just a word of explanation: the Global Leadership Foundation, GLF, of which I am Secretary General, has 24 members, all of whom are former leaders, most of them heads of state, or heads of government. They advise today’s leaders in countries in transition around the world in a private and personal capacity. The chairman of the GLF is former president F.W. De Klerk, of South Africa. And I’m honoured to say that among our patrons are our host, President Václav Havel, my colleague on this panel, President Lagos, as well as Nelson Mandela.

A couple of weeks ago in Dili, the capital of East Timor, Xanana Guzmao, independence leader, first President, now Prime Minister, was giving evidence to the Commission of Truth and Friendship between Indonesia and East Timor. The Commission was set up in 2004 to investigate the events of 1999, when, following the referendum which led to East Timor’s independence, local pro-Indonesian militias, backed by the Indonesian military, moved a third of the population out of the country, killed hundreds of people and completely destroyed the country’s infrastructure. What was interesting and disturbing about those hearings in East Timor two weeks ago, was that UN officials, who had been on the ground in 1999 and had witnessed those events, were prohibited, by the UN itself, from appearing before the Commission and giving evidence. Why?

The steady advance of humanitarian law over the last fifty years has taken the form of enshrining the freedom of the individual and national law, guaranteed by the state. A modern state now has the responsibility for upholding individual human rights. But it no longer stops there. For over three hundred years, since the Treaty of Westphalia, the nation state has been the dominant political unit in global politics. It has assumed the business of government and it has protected its own leaders, whatever they have done. The progression from the rigid application of sovereign impunity, which this entailed, to international accountability through the International Criminal Court, has been one of the most significant developments in international affairs in our lifetimes. The establishment of the ICC in 1998, with the remit to investigate war crimes, crimes against humanity and genocide, was the culmination of a process, which began with the Nuremberg Trials after World War II. Individuals, not just nation states, are now subjects of international law. Leaders are now accountable. Not just to their own people, but to the world community, for their actions. Responsibility has been extended.

How does this new instrument fit into the process of establishing peace and justice? Specifically, how far should the court take account of the implication of its actions and decisions for ongoing conflicts, or for peace negotiations. What benefit does international justice bring to the whole process of nation building and ending conflict? What is the real priority? Is it peace, or is it justice? How does the world and any affected community now cope with the aftermath of conflict? There is a spectrum of ways. It ranges from Truth and Reconciliation Commissions on one side, South Africa being the most famous, to national, and failing that, international trials by the International Criminal Court, and the application of international law on the other. All aim at establishing lasting peace.

The Truth and Reconciliation Commissions, TRCs, have the advantage of the public acknowledgment of the crimes committed. Unknown crimes are sometimes uncovered. There is an element of accountability in the expression of remorse before the whole community. The TRC process attaches great importance to the victims of crime and their families, and the healing effect they can have is very significant. But there is no retribution. As one member of the South African TRC said: “We did not see retributive justice, as an indispensable pre-requisite for reconciliation.” The TRC approach trades justice for truth.

In the judicial process there is prosecution and therefore non-cooperation from the accused. It usually results in a straight forward guilty or innocent verdict. By example, it can act as a deterrent and help prevent future atrocities. There is clear accountability and with sentencing it provides retribution. But it can take a long time.

The key element that separates these two processes is the issue of amnesty. It is generally available in the TRCs, it is not available in the judicial process, certainly not at the level of the International Court. In situations where conflict ends without a clear victor or vanquished, but with negotiations, as most conflicts do, amnesty can be crucial.

Let’s look at three current cases. One between states, one between the International Court and a rebel movement, and one between the court and a government.

First—East Timor and Indonesia. I will quote a couple of extracts from the UN Secretary General’s report to the Security Council in July 2006. He noted that the UN had established a Commission of investigation in 2001, which, after four years’ work had submitted its 2000 page report, with 200 recommendations, including proposals to prosecute named individuals. The Commission’s report was passed to President Guzmao and the East Timorese parliament before being discussed by the Security Council. In his report the UN Secretary General states: “In his statement to the Security Council, President Guzmao articulated the policy of East Timor government concerning the report, explained that the government’s policy paid emphasis on restorative justice, as the most appropriate tool of response to past human rights violations, instead of punitive justice, which is impractical, tedious, counter-productive within the context of the bilateral and multilateral relations and that East Timor wanted to have good relations with its neighbouring countries.” In other words, President Guzmao did not accept the UN report’s main conclusions.

The Secretary General went on to refer to the bilateral Commission for Truth and Friendship (CTF) established between the two countries, and he commented: “The governments state that Indonesia and East Timor have opted to seek truth and friendship on a new and unique approach, rather than the prosecutorial process. They also state that the process will not lead to prosecutions and will emphasize institutional responsibilities. To that end, the terms of reference provide for CTF to recommend amnesty to those involved in human rights violations, who cooperate fully.” And he concludes, “It would be deeply regrettable if the reconciliation process forecloses the possibility of achieving accountability for serious violations of human rights and international humanitarian law, for the terms of reference of the Commission for Truth and Friendship to hold out the possibility of amnesty been recommended for such crimes, is inconsistent with the requirement of international law.” That was the reason that UN officials could not give evidence to that commission.

Secondly—a case between the ICC and a rebel movement. The ICC has recently issued warrants for the arrest of the leaders of the Lord’s Resistance Army in northern Uganda, who have been fighting the Ugandan army for the last twenty years, and whose crimes are as horrific as it is possible to imagine. Former President Chissano of Mozambique has been given special responsibility by the Secretary General for bringing this conflict to an end. There have been peace talks on and off over the years, but last year they began to get serious. Then came the warrants from the International Court. When President Chissano was asked recently what impact the warrants had on its task, he replied memorably that “it doesn’t help the process of negotiating peace when the person you are negotiating with knows that you are trying to arrest him”.

The case raises a number of issues. The timing and the announcement that the LRA leaders were about to be arrested and sent to The Hague was hardly an incentive to the rebels to surrender, put down their arms and make peace. Indeed, President Museveni, who originally invited the ICC in, later asked it to suspend its citations. But it refused. Secondly, there have been atrocities on both sides during this war, with whole communities, over 2 million people, forced to move into encampments. The victims want to see both sides prosecuted. Thirdly, the external intervention of the ICC takes no account of cultural traditions in solving conflict and encouraging reconciliation, of which there are many in Africa.

So what should be done when a warring party insists that a prospective peace deal should be conditional on no prosecutions? The issue of amnesty of some kind becomes crucial to any successful peace negotiations under these circumstances. The alternative is a return to war, with the rebels having nothing to lose by doing so. But amnesty is beyond the remit of the ICC. It is a political, not a legal issue. Without the ICC you therefore have the possibility of a political solution that could bring peace but would itself be in conflict with international law. With the ICC you have the possibility of continuing conflict.

Thirdly, a case where the ICC is acting against a government. It has issued warrants for the arrest of one member of the Sudanese government and a number of Sudanese officials for their involvement in the Darfur atrocities. International warrants against members of government in office can cut both ways. On the one hand, they act as a significant deterrent to others in their own and other governments. Minds are focused at the very least on the fact that they will never be able to travel abroad in safety again. And amnesty is not on offer. But it can complicate the efforts of the international community to persuade a government to change its ways once the die is cast. The possibility will be raised of lifting the warrant as the price for cooperation, e.g., in getting agreement to the UN force entering Darfur. It will take time for the penny to drop that such a deal is not possible. Generally, fear of ICC prosecution will encourage a dictator to cling on to power for as long as he can. Perhaps concern about the ICC is a factor in President Mugabe’s current thinking.

So what conclusions should we draw? First, I suggest that the principle of no impunity should be discarded only as a last resort. Second—that prosecution by the Criminal Court is one of a few credible threats faced by leaders of warring parties. It may have a deterrent effect; but it may well turn out to be neither a lever for compliance nor a herald of peace. Thirdly, in all cases it must be applied in a manner that takes account of the full local political context that it’s likely to effect. For it is itself a political act.

Truth and Reconciliation Commissions and other solutions in which reconciliation has taken precedence over accountability, have produced significant success stories in South Africa, Mozambique, Angola, (post Jonas Savimbi), as well as Argentina and Chile up to a point. But the test of the TRC route is durability. Will the underlying absence of justice and retribution emerge later to haunt society?

Finally, whatever the choice, it can never be made without consulting the country involved, not least, as Ramesh Thakur has put it: “Because it is that country that paid the price in the past and will have to live with the immediate and long-term consequences of the decisions made.”

Jean-Guillaume de Tocqueville
Thank you very much, Sir Robin. So, we’ve been debating international law for some time now, which is, I guess, the evidence that there is international law, international law exists. There are achievements due to international law on the international scene. But still, international law, the concept of freedom and responsibility, have to force their way on the ground, which is not easy, first due to the reluctance of the main states to give up any part of their sovereignty. And also to the many different cultures, backgrounds, and religions of all the players who are now concerned in this globalised world.

So, with this I would like to close this panel on Freedom and Responsibility in International Law. Thank very much on your behalf, on my behalf and on the behalf of all the participants to our speakers for their very interesting contributions, and thanks again to President Havel for his very kind invitation to this debate.