The Closing Plenary was convened at 11:00 a.m., Saturday, April 2, 2016, and the Keynote Address was given by Ernst M.H. Hirsch Ballin of the Asser Institute and the University of Amsterdam. The expert panel was moderated by Abiodun Williams of The Hague Institute for Global Justice and the panel consisted of: Jean-Paul Laborde of the UN Counter-Terrorism Committee Executive Directorate; Michele Coninsx of Eurojust; Rashad Hussain of the U.S. Department of Justice, Directorate; and Hina Shamsi of the American Civil Liberties Union.
By Ernst M.H. Hirsch Ballin *
Madam President of the ASIL, Madam Deputy Mayor of The Hague, Honored guests, Ladies and gentlemen,
It is an honor for me to speak at the closing session of the 110th ASIL annual conference. As a long-standing, active member of the association, I find myself in a familiar setting. However, as the substitute in the program for, I sense the unavoidable disappointment amongst you, since you had expected to hear a speech from the present Minister of Security and Justice of the Netherlands and acting chair of the Council of the European Union for Justice and Home Affairs, Ard van der Steur. I am of course one of his predecessors and have held office in times when we also had to cope with challenging security situations and organized border crossing crime (1989-1994 and 2006-2010). I have worked with the National and European Counter Terrorism Coordinators and security services and have faced possible spillovers of the confrontation with Al Qaeda and their affiliates. But the actual situation is profoundly different. Da'esh (the so-called Islamic State: I stress the words "so-called") engages, on the one hand, in activities that resemble illegal methods of warfare, insofar comparable to methods of "total warfare" that we thought to be effectively outlawed with the Geneva Conventions and the Rome Statute of the International Criminal Court.
The complicated intertwinement of Da'esh's advancement in Syria and Iraq with the civil war in Syria has created problems that do not fit into the structures with which we intended to uphold the rule of law in international relations, the subject of the research program of the Amsterdam Center for International Law, directed by my colleague Andre Nollkaemper. (1) On the other hand, Da'esh has also deployed followers who brought devastating terrorist activities to the domestic scene in Europe and North America: think of the recent bombings and shootings in major European cities (Paris, Istanbul, and Brussels). Notwithstanding the fact that these terrorist activities originate from the unruly warfare in the Near Middle East and North Africa, they are not part of warfare, but of (very serious) crime. Da'esh has all the characteristics of a violent criminal organization, including its methods of financing and internal discipline. The national and European rule of law is rightly seen as the framework for the response of the authorities in our country and other EU member states to these attacks. I know that Minister Van der Steur would have reconfirmed this approach. I can say that we agree on that.
Da'esh and its affiliates present themselves, nevertheless, as an organization with an ideological, even a--albeit in the view of every serious Muslim scholar, distorted--religious motivation. This violent extremism is the motivational infrastructure of the actual violent denials of the international and national rule of law.
The city of The Hague proudly calls itself the city of peace and justice. It hosts courts and a plethora of institutions that promote the international rule of law: the International Court of Justice, the Permanent Court of Arbitration, the International Criminal Court, the International Criminal Tribune for the Former Yugoslavia, the Special Tribunal for Lebanon, and the Organization for the Prohibition of Chemical Weapons. It also hosts institutions that support the rule of law within domestic courts and through international and European law enforcement: The Hague Conference on Private International Law, Europol, and Eurojust. I am delighted that the President of Eurojust, Michele Coninsx will join our debate today. Warmly supported by the City of The Hague, other institutions, such as The Hague Institute for Global Justice presided by my colleague Abiodun Williams, create a welcoming environment for the people who work within and with these courts and bodies, and their national counterparts.
The Asser Institute for International and European Law has been based in The Hague for the past fifty-one years. We value this city as the most convenient location for this Dutch interuniversity institute, which is entertained by the University of Amsterdam on behalf of the Dutch Law Schools. Our activities consist of high-level academic research, conferences, professional courses, and publishing, in the tradition established by the outstanding Dutch legal scholar and--so far only--Dutch Nobel Peace Prize recipient, Tobias Asser (18381913). His work as a scholar and diplomat in close cooperation with his colleagues from Britain, France, Germany, the United States, and Russia--with Fyodor de Martens as one of his most important counterparts--paved the way for the Hague Peace Conferences, Hague Conference for Private International Law, and the Permanent Court of Arbitration.
Before returning to the actual profound challenges to the institutions and societies that want to rely on the international and national rule of law, I would like to say something about the background from which Tobias Asser developed his mission in his time.
Law is, according to Asser in his inaugural address , part of the social sciences. Asser's idealism about freedom, justice and peace, was founded in a realistic, young as he was, view of human behavior. International trade, regulated by public and civil and international private law, requires peace between the nations, and peace is again the result of responsible behavior guided by international law. Trade, cultural development and scientific advancement flourish in a public sphere of freedom, was the core of Tobias Asser's academic mission and his frequent diplomatic missions. (2) The reason why law--i.e. the rule of law--is so important, both in international relations and within a state and a society, is that it creates trust. The democratic acceptance of legislation or treaties, access to independent judges, and effective but proportionate law enforcement are the building blocks of trust and the single most important antidote against the violent expression of dissatisfaction, greed, and lust for power at the expense of other human beings. This insight was and is the core of our professional identity as jurists.
This is, in my view, exactly what explains the seriousness of the threat to which our societies are exposed by Da'esh and similar manifestations of violent extremism. Political panicking and the...