Pathways to Peace, with guest William Schabas

My guest in this episode is William Schabas, the internationally respected expert on human rights law, genocide and the death penalty.  He is a professor of international law at Middlesex University in the United Kingdom and a professor of international law and human rights at Leiden University in the Netherlands. He has served on several human rights commissions and fact-finding missions, and has written hundreds of articles on international law.

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Transcript

Derek MacCuish:

Hello again, and welcome to another episode of human rights magazine. My guest today is William Schabas, the internationally respected expert on human rights, law, genocide, and the death penalty. He is a professor of international law at Middlesex University in the United Kingdom and a professor of international law and human rights at Leiden University in the Netherlands.

He has served on several human rights commissions and fact finding missions and has written hundreds of articles on international law. To begin our conversation, I asked for his thoughts on conflict and how societies can prevent crimes against humanity. 

William Schabas:

Okay. Just before we do that, something that I just would like to flag because it's been part of my work is the issue of the right, the human right to peace. And, this is a subject that is quite, I think, quite controversial within the human rights field. And there are, you know, people in the field who don't think much of it, who don't think it belongs. And there is even within the human rights movement, I would say, a militarist streak, with which I'm not at all aligned of course, but it's a source of dispute, debate, and so on.

That might also be interesting for your listeners to know a little bit about, but if you would like me to talk about the other subject, how should I start? 

Derek MacCuish:

That's that sounds like a very good place to start, actually.  Do you want to go into that a little bit? 

William Schabas:

Yes, I'll tell you more about it.  I became particularly interested in this working,  in the field of international, what we call the international criminal law, which is about genocide, war crimes and crimes against humanity, as well as the kind of an outlier in a way within the field, certainly a modern times, is what we call the crime of aggression, and which at the time of the Nuremberg and Tokyo trials in 1945 and 46 was called crimes against peace. Crimes against peace was very much the glue that held together the charges,  at Nuremberg trial, following the Second World War, it was the idea that the atrocities committed by the Nazis  were in some way associated with the broader wrong of waging an aggressive war. And in recent times, international criminal law, when it kind of revived after many years where we didn't have prosecutions until the 1990s after the Nuremberg and Tokyo trials, and when they were revived in the 1990s it was hard to get the crime of aggression into focus. So when the statute of the International Criminal Court was adopted in 1998, it didn't have a definition of the crime of aggression which was a controversial matter.

 I remember going there, I was there with a Canadian-based non-governmental organization, but I remember the delegations, including the Canadian delegation and others were very, very lukewarm or indifferent to the idea of aggression being included in the statute of the International Criminal Court. And it wasn't, it was set aside to be added later and it was added, but in a very, very inadequate and ineffective manner at a conference in 2010. When that happened, two of the major human rights NGOs, Amnesty International and Human Rights Watch, said that they were quite indifferent to the issue of the crime of aggression because they said it wasn't really part of human rights law. And  I profoundly disagreed with that and felt very strongly that we could find within human rights law, within texts like the Universal Declaration of Human Rights, a recognition of the fact that peace is absolutely fundamental for the protection of human rights. 

I don't want to say that you can't protect human rights.  There's a whole lot of litigation about human rights violations committed in time of war and the ability of human rights tribunals and other monitoring bodies to address conduct of war, using human rights norms to indicate violations and so on. But that ultimately human rights can only really be protected adequately with peace, and the presence of war is inimical to the protection of fundamental human rights.

So I've tried to develop this, and written this up. There was a campaign during the 20-teens that led to a United Nations General Assembly resolution recognizing the right to peace as a human right but it was a controversial resolution and there were states that didn't like it very much.

As I say, what's striking about it is that it's not just that there are some more conservative governments, I don't remember the list of them, but there are certainly some of them who aren't really very,   attracted to the idea, but there are also important components of the human rights movement, I've mentioned two of the great international non-governmental organizations, that don't get it as far as I am concerned.  

So that's really what I would like to say and share with you a little bit, about the place of peace within human rights. It might seem just straightforward to everybody, but it's not the case when we drill down into human rights law and human rights activities to find the controversy.

I think part of this has also been generated by a, what I'd call a militarist streak in human rights, which manifests itself in the idea that the way you promote human rights is to use armed force and periodically when there are serious violations.  People say, well, what we need now is to have actual military intervention and, you know, I don't want to rule it out as being something that in an extreme case might be possible. But typically, the calls for intervention are to countries with powerful armies that do not have a good track record at protecting human rights or at making peace at all. I can name them if you want, you know the obvious candidates and I'm not talking about Russia here. I'm talking about the United States and the United Kingdom and so on. And so I don't see them as saviours. 

I'm always reminded of a quote from the famous Irish writer, Brendan Behan, who said that there's no amount of human suffering that can't be made worse by the presence of a policeman, and I sort of feel that way about powerful armies.  I don't see them as a, as a coming to the rescue to protect human rights, but there's a strong current of support for that within the human rights movement. 

Derek MacCuish:

Is there a difficulty in defining what's meant by aggression, how to measure it?

William Schabas:

Yes, well, there are straightforward examples. There is a definition now that was adopted by the United Nations General Assembly back in 1974, after many years of work, and it lists a number of acts that are deemed to be acts of aggression. It's not an exhaustive list, and it leaves out some acts that are really very, very aggressive.  I'm thinking for example of what are called, in UN jargon, unilateral coercive measures. These are very, very oppressive sanctions that are imposed on economies of countries in order to get them to obey rules that other countries think they should obey.

So, again these are the countries with very powerful economies who are in a position to inflict a great deal of pain on other countries. And these are measures that don't involve physical force, but they can have terrible consequences in a country that is choked off because of these sanctions.

Now sanctions are recognized. They were an important thing when, for example, they helped to bring down the apartheid regime in South Africa, but these were sanctions that were imposed and authorized by the United Nations through the processes of the United Nations. But we have a whole other side of it. These are forms of aggression that don't involve strict, doesn't involve military force, but it does in effect encroach on the sovereignty of countries.   

The Rome Statute of the International Criminal Court has its own definition of what the crime of aggression, so the distinction here is that not all acts of aggression are crimes of aggression.  The crime of aggression and international crime is something that would be subject to prosecution by an international court. And so the Rome Statute of the International Criminal Court says that it's an act of aggression that constitutes a manifest violation of the charter of the United Nations.

So, lawyers and judges can't make any sense of what it means to say a manifest violation of the charter of the United Nations. So I don't know how a non-lawyer would sort that one out, but it's the idea that there's a scale of acts of aggression, of gravity, that there’s relative gravity.  A skirmish on the border involving the use of armed force wouldn't be of the same order as an occupation of a territory,  followed by annexation, which would be considered one of the more ultimate forms of aggression. 

One of the other things that's curious about this is that the crime of aggression,   according to the Rome Statute of the International Criminal Court is reserved to leaders.  It's a crime that can only be committed by leaders, people who are in a position of authority to direct the armed forces of the country. And it's kind of a bizarre contradiction with the general rule that we have for these international crimes, that individuals are responsible for their acts and that saying you were ordered to do something by a superior is not an excuse before a court. Some of the Nazis who were prosecuted in various post Second World War trials famously said, well, I was only following orders. And the answer from the judges was, you know, that's not a defense. If you were committing an act that was manifestly contrary to humanity, to fundamental norms, then it's not an excuse to say you were ordered to do it. You're supposed to refuse such an order. 

But we do this when it comes to aggression, we don't say that. We say, no, we're not going to put that responsibility on it. I think that's wrong. I think it's unfortunate. People say but how can you expect soldiers to know that they're committing an act contrary to international law?  And my answer is, it's usually not very technically difficult to know that. Most soldiers, in most armies, never set foot in another country. It's only a very limited number of armies that think they have the right to go into other countries. It's not a hard rule to teach soldiers, to say, you can fire your gun in self-defence on your own territory, but if you're going to go into someone else's territory, make sure you have a blue helmet on and you have a UN Security Council resolution authorizing it. 

I think it's a characteristic of the problem of identifying this crime of aggression and the acts of aggression and putting them into international law. And it’s a very, very imperfect regime compared with things like war crimes, crimes against humanity and genocide, where we have a lot more certainty about what's a violation.  It's much more straightforward. We have a lot of trials, we have a lot of prosecutions, we have a lot of precedents that clarify what that means, but with aggression there are mysteries about it.

Derek MacCuish:

You covered a lot of territory. Let's shift to talking about the right to peace, and shift to what positive or proactive aspects are needed, even the absence of formal recognition under international human rights law, what is needed to identify and bring into reality the right to peace?

William Schabas:

Well, you know, the part of it that I do, which is mainly about using international mechanisms to promote it, involves first of all getting the getting agreements with countries that these are rules and principles that they have to follow, that they implement them in their national law. And,  I think ultimately it's down to public opinion, people understanding that, first of all, how extreme it is to use armed force and resisting the militarization that many countries are engaged in, with armies larger than what they need, weapons that are not designed for defensive purposes, and military alliances.

Now that everybody's talking about NATO and NATO's role in Eastern Europe, and whether NATO should expand them. My own view is that, with the end of the Cold War thirty years ago, NATO should have been disbanded. You shouldn't have military alliances in a world that's governed by the charter of the United Nations and the prohibition of the use of force to settle disputes. 

One of the other things that we need to settle disputes, it's very important, are very effective mechanisms for settling disputes peacefully between states the way we do it in ordinary life. When two people have an argument, they not supposed to pull out guns and settle it with a duel.  They are supposed to go to court, and they set out the case and they accept the judgment of the court. 

We have some of that, you know, we have the World Court, the International Court of Justice, that is there to serve that purpose. And it's a marvelous institution for that reason. I've had the honour of appearing in that court on a few occasions, as a lawyer, and I’m in awe of the institution because of what it stands for. It's called the Peace Palace, which is an interesting name for a court. We think that the court should be in the justice palace. In many languages, we call it the palace of justice, but the World Court in The Hague is in the palace of peace.  And that's because it's there to settle disputes that in the past would be settled by arms.  

It's not very well known, but in July of 1914, as the crisis, the July days that led to the terrible First World War sort of spinning out of control, there was a proposal.  Let's go to this new court. It actually, formally hadn't been established, but the building, which was built by the Scottish American millionaire, Andrew Carnegie in The Hague, had been completed the year before. And it was there. So there was this idea, that was very new in the world in 1913 and 1914, that we settle the dispute peacefully before judges. So there was a proposal that Serbia and Austria go before the court that would be then set up for that purpose to settle their dispute. But some of the people, particularly the German emperor, really wanted a battle, he wanted to fight, he wanted to use his little toys, his military toys.

And frankly, the other side was kind of interested in doing the same. So twenty million deaths later, you know.

Derek MacCuish:

Is there anything else you'd like to cover before we wrap up?   

William Schabas:

Well, I don't know. I'm not sure how long I've gone on, but I've given you some of my thoughts about peace and how to deal with it. And it's a dimension of it that probably not that many people are very familiar with, but it's out there and it's part of a campaign for global peace.