Pacem in Terris Lecture Series
Remarks by Cherie Booth, QC
Human Rights Are Best Served By Democracy and International Law
November 17, 2003
I hope to persuade you this evening that it is indeed true that human rights are best served through a clear and unwavering commitment to democracy and international law. I will first define our terms, and then I will deal with a point of the very greatest importance to the future, namely why it is that the world needs the USA to participate in international law and its institutions, and in particular the International Criminal Court. My colleague Conor Gearty, will develop my general argument further; together we seek to persuade you that it is through a commitment to democracy and international law that the human rights of us all can be most effectively protected.
So let us start by asking what do we mean by "international law" and "democracy" and "human rights" in today's world?
To take the first of these terms -- international law -- we see that the seeds of today's international law and its moral resonance lie in the aftermath of the Second World War. Modern day Europe is ineradicably marked and changed by the experience of the perversion of democracy and law and the utter tyranny of State power which characterised the years of Nazi rule in Germany and occupied Europe from the early 1930s to the mid 1940s. The unique horror of the Nazi system, democratically elected into power, is that it purported to maintain the forms of law and legality, while permitting tyranny and injustice to reign. In the words of the Nuremberg War Crimes Tribunal the Nazi legal system was one in which "the dagger of the assassin was concealed beneath the robe of the jurist".
I do not need to preach to a US audience about the benefits of the rule of law. The idea has in recent times become inseparable from that of democracy. But while the US has enjoyed centuries of democratic rule, it may come as some surprise to know that international law has only recently begun to grapple with what democracy really means. Classical international law had for many years held that sovereign status was simply a function of power -- control, by whatever means, over a population within a territory. Today, international lawyers largely accept that legitimacy affects sovereignty, and that increasingly governments are expected to be democratic if they are to legitimately exercise sovereign power. Thomas Franck, a celebrated American international lawyer, explains this as the consequence of overlapping phases of development in international law which eventually culminated in the right to democratic governance.1
While this commitment to democracy is a notable development, it also begs certain questions, questions such as: What are we to make of this commitment to democracy? Put more positively: what do we expect of nations that already proclaim to be democratic? The memory of the perversion of democracy propagated by the Nazis still not being far from our minds, what is the link between democracy on the one hand and the other key commitments of a civilised society on the other, namely respect for human rights and the rule of law?
The answers to these questions, at least in part, are bound up with our understanding of democracy. It is by no means easy to provide a definition of what Winston Churchill described as "the worst system of government except for all others". Thomas Franck, considering the "limit of what the still frail system of states can be expected to accept and promote" says that "[t]he term "democracy", as used in international rights parlance, is intended to connote the kind of governance that is legitimated by the consent of the governed."
That is a happy start, but if we are committed to a moral, more substantive form of democracy, it ought to be regarded as nothing more than a start. Democracy cannot be seen simply as an arithmetical procedural for determining how a Government is put into or is removed from power. In such a guise, we would remain vulnerable to the Nazi distortion. The right to democratic governance should not be allowed to obscure the substantive moral content of a truly democratic political regime, one which is required to protect and proclaim the value of human life, and to provide the conditions for each individual's flourishing, even in the case where a majority of the electorate may favour the deprivation or attenuation of rights for unpopular minorities -- whether that be present day asylum seekers in the more developed countries of the Commonwealth, or Jews in the Germany of the early 1930s. It is the duty of the State authorities therefore -- and this is especially the case in democratic systems - to stand up for and protect fundamental rights, often against majority opinion. And in trying times, such as those currently faced by governments post-September 11 where States face a threat to their internal security, that duty demands that a proper balance be struck between a response to terrorism and continued respect for civil liberties. As the Pope noted in his 1991 encyclical Centesimus Annus "a democracy without values easily turns into open or thinly-disguised totalitarianism".2
I now turn to consider these large questions in the specific context of war crimes. Nowhere else do the three benchmarks of civilized society -- respect for human right and the rule of law on the one hand, and a commitment to democratic and good governance on the other -- come so clearly together. It is once again useful to start with some historical background. The Nazi horrors, perpetrated in the name of a democratically elected body of officials, emphatically bring home for us the lesson that the benefits of democracy and the rule of law are benefits that go beyond crass majoritarianism. It is important, therefore, that we remember the Nazi experience as we think about the type of features which international law ought to demand of any State that wishes to call itself "democratic".
One of those features, and which I have already touched on, is that truly democratic states are committed to providing the conditions for all of their citizens' flourishing. This commitment, of course, already has a banner under which it crusades. That banner is human rights. One of the first arguments presented by the lawyers defending suspected Nazi war criminals at the Nuremburg Tribunal was that individuals cannot be punished for international war crimes because international law is concerned exclusively with the actions of sovereign states. The Nuremburg Tribunal rejected this conception of international law. It was surely right to do so. The end result of the Nuremberg War Crime trials was the articulation of a new legal order under which individuals were bound by the general principles of international humanitarian law and morality recognised by civilised nations, no matter the terms of their national legal systems.
The Nuremburg Tribunal's confirmation that individuals are bound by the rules of international criminal law was an important step towards the internationalisation of human rights. [CG1] In line with its lack of interest in the political composition of states to which I earlier referred, classic international law had for many years also held that "states only and exclusively are the subjects of international law" and that sovereignty of these states formed the pillar of the international legal order.3 Today we are developing an idea of a principled sovereignty accountable to an international order based on the interlinked ideas of democracy, the rule of law and human rights. It is on the basis of this new legal order that war crimes trials have since been instituted into the genocides in, for example, the former Yugoslavia and Rwanda and it also forms the background to the setting up of the International Criminal Court. The fact that delegates at Rome were able to come together and finalise the ICC Statute is evidence of the existence of a shared social system built on universal respect for the idea of human rights -- a system which denounces the most serious war crimes and crimes against humanity because of a recognition that tolerating such atrocities diminishes and threatens everyone.
The ICC has therefore affirmed that international law is no longer exclusively concerned with relations between States. That brings me directly to the second topic I indicated I would pursue today -- why the world needs the USA to participate in international law and its institutions such as the International Criminal Court.
The Rome Statute of the ICC adopted in 1998 has its flaws -- the nature of the drafting process and the political issues at stake ensured that -- but we have now reached a stage where the principle of individual criminal liability is established for those responsible for the most serious human rights violations, and where an institution has been established -- on a permanent basis -- to ensure the punishment of such individuals. I am convinced that the International Criminal Court, with independent prosecutors putting tyrants and torturers in the dock before independent judges, reflects a post-war human rights aspiration come true. The International Criminal Court is a shining example of how human rights might be realised under international law. If the Court is to be a success, however, it deserves the whole-hearted support of the world's only superpower -- the USA.
As you may know, the UK was and continues to be one of the nations strongly in support of the Court. The treaty has been signed by 139 States and 92 States have ratified it and it came into force on July 1, 2002. The judges for the Court were chosen earlier this year in February, and were sworn in on 11 March 2002 at the inaugural session of the Court in The Hague. The Prosecutor has been chosen -- the highly respected Argentine lawyer Luis Moreno-Ocampo. The Court's jurisdiction covers war crimes, genocide and crimes against humanity, and the Court is expected to hear its first case soon, most probably arising out of events in the Democratic Republic of the Congo.
The prospects for the ICC as a protectorate of the human rights ideals of the international community as a whole become difficult to imagine, however, when some States choose to exclude themselves from that vision. This is particularly true when such States are not only powerful, like the United States, but also -- again like the United States -- are traditionally associated with the very values the ICC seeks to endorse.
Why is the US so implacably against the International Criminal Court? The official reason put forward for the US stance is that it is anxious about the ICC's jurisdictional scheme; that is, about the context in which the ICC is able to exercise jurisdiction over persons accused of international crimes. Under the treaty the ICC can take jurisdiction over a national of even a non-State party like the US if he or she commits a crime in a State party's territory. The US claims therefore that the Rome Statute exposes its citizens to politically motivated prosecutions.
In this respect the US appears unwilling to see that there are various safeguards built into the Statute which ensure that all States have nothing to fear from the Court, and which ought to allay US fears of a rogue prosecutor acting out of spite against American peacekeepers.
First of all, under the Court's "complementarity" scheme the Court is required to decline to exercise jurisdiction when a case is being appropriately dealt with by a national judicial system. And because a national judicial system will have the first bite at the cherry in respect of any investigation which affects its territory or its nationals, the ICC will be able to step in only where a national judicial system is unwilling or unable genuinely to investigate. The principle ensures that the ICC operates as a system of international criminal justice which buttresses -- not overrides -- national justice systems. Should an American peacekeeper be accused of committing a war crime on the territory of a State party to the Rome Statute, it will remain an option for the US to put its hand up and request that the individual be sent home so that he might be prosecuted on American soil.
In any case, Article 18 of the Rome Statute requires that the ICC Prosecutor notify all States parties and States with jurisdiction over the case before beginning an ICC investigation, and cannot on his own initiative begin an investigation without first receiving the approval of a Chamber of three judges. At this stage, it would be open to states (including non-party States like the US) to make it clear that they will investigate allegations against their own nationals themselves. The ICC must then suspend its investigation. The Court will only take over if the national system is unable to investigate, for example, because of a breakdown in its judicial systems (the Rwanda example); or because it had refused to investigate without appropriate justification. It seems inconceivable that a State which is committed to the Rule of Law (such as the US) would refuse to investigate and prosecute its nationals should there be reliable evidence that they were involved in committing international crimes.
The UK is satisfied that the safeguards built into the Rome Statute are sufficient to ensure that UK servicemen on active duty abroad will be protected from malicious or politically motivated prosecutions. The UK has long acknowledged that the US has a lead role in defending our common values, maintaining peace and security and defending democracy and human rights throughout the world. The UK has closely aligned itself with that role and has deployed troops in different parts of the world in pursuit of those values. In 1998 at the Rome Conference the UK concluded, and after the most careful consideration, that the liberty and well-being of its citizens: whether service personnel, officials, politicians or civilians, will not be threatened by malicious or politically motivated arrest and indictment in a foreign land by virtue of its commitment to the Court. With time, we can but hope that the US will come to share that assessment with regard to its own people, and recognise that the concerns it has expressed, legitimate as they may now seem, are not well-founded.
To conclude, in modern times democracy has come to be embraced under international law as the favoured form of governance. But whatever the position may be in particular societies throughout the world, a majoritarian form of democracy under international law simply will not do, and is especially untenable in the context of the protection of human rights internationally.
One of the manifestations of this commitment to human rights is the development of a substantive, principled sovereignty, accountable to an international order based on the interlinked ideas of democracy, the rule of law and human rights. This substantive international legal order has found one of its most important expressions in the creation of the International Criminal Court -- an institution of international law that reflects universal condemnation of certain serious human rights abuses, and by implication demands universal acceptance of and support for its work.
The ICC has come into force despite the efforts of the United States, and it will be able to operate -- reasonably effectively [CG2] -- without the United States, as do many other international tribunals (such as the International Tribunal for the Law of the Sea, in Hamburg). But the ICC would surely be an even greater success if the United States was to participate, assisting in the development of the procedural and substantive rules, the activities of the Prosecutor and, if there were an American judge, the development of the Court's jurisprudence. The absence of the United States means that we all stand to lose from the full benefit of the experience of a country with the strongest commitment to the rule of law generally and expertise in criminal and international law in particular. We must remain hopeful, in these circumstances, that the United States will leave the door open to future participation and, in the meantime, provide constructive support from the sidelines.
Ultimately, our notion of latter-day sovereignty which is informed and defined by the principles of democracy, the rule of law and human rights, finds increasing expression in international law. Of course the geo-political landscape of an increasingly turbulent world ensures that international law will necessarily struggle to provide all the answers. However, our vision of substantive sovereignty and democratically rich States, and our hopes for workable international law institutions that attract universal support, involve aspirations that require a renewed commitment to international law. International law's earliest vision and greatest strength is its insistence on a collective, rather than a unilateral or individualised, notion of justice. And only through a collective drive for moral democratic orders under international law and a unified commitment to global institutions like the International Criminal Court will international law realise its true goal -- of being a guiding set of standards against which we can critically measure international behaviour and confidently assert the fulfilment of human rights.
© Cherie Booth, 2003
1. T. Franck, "The Emerging Right to Democratic Governance", (1992) 86 American Journal of International Law 46
2. His Holiness Pope John Paul II Centesimus Annus (1991) , 46.
3. Oppenheim, International Law, (Longman, London, 1905), vol. 1, 18.