The lecture began at 4:30 p.m., Wednesday, April 9, and was given by Prince Zeid Ra'ad Zeid Al-Hussein of Jordan, Ambassador of the Hashemite Kingdom of Jordan to the United States; the discussant was Ambassador David Scheffer of Northwestern University School of Law.
FOR THE LOVE OF COUNTRY AND INTERNATIONAL CRIMINAL LAW
By Ambassador Zeid Ra'ad Zeid Al-Hussein *
I will begin with two observations. The first relates to the well-accepted understanding that any effort to separate law from the exercise of political authority along neat, tidy, lines is a challenge filled with anxiety for those willing to try it--an embrace so complex, it far exceeds my ability to attempt it this evening! That being said, within our experiences, there are circumstances which would seem to loosen some of these knots, and turn this interplay of politics and law, which over time has evolved to be mutually-reinforcing, into a simpler, clearer, although more tense relationship.
One such condition is when political authority finds itself, or supposes it will find itself eventually, by virtue of probability, pitted against the world of international law and more specifically the world of individual criminal responsibility. And it is easy to see how this may be.
I do not believe any one of us would doubt that humans are most sensitive to the law when it is violated in the extreme, when human suffering, and particularly that of children, is so astonishing in its breadth and so numbing in its ferocity, it arouses in us the most unambiguous emotions. And when, in that specific context, suspicions edge up against a particular individual holding office and believed to be responsible, the battle-lines distinguishing the world of law (however we choose to interpret it) from the world that has clearly abandoned all law, can sharpen--and the two worlds begin to reveal themselves with greater clarity.
That is not to say of course that the political world somehow rallies in support of a monster who will commit such offenses--far from it. The perpetrator will often provoke howls of genuine condemnation, heartfelt disgust, and calls for action to be taken from political establishments everywhere. But the political world will also likely perceive, by virtue of analogous thinking and with some imagination, that the modern day equivalents of the Barons at Runnymede--the lawyers were making more demands of the political world than may yet be acceptable to the practitioners of sovereign authority.
The second assertion which I wish to make early on in this lecture is that it is not states, in any practical sense, who legislate international law, nor is it they who campaign for, or negotiate, international treaties and then seek their compliance. Rather, it is persons bearing names, with personal histories, holding individual beliefs, who also happen to be the representatives of these states, who do all of this: campaign for new treaties, negotiate them, and who seek their compliance. And I make this point because it is astonishing how, to an ordinary diplomat like me, this point is so often lost in the mists of scholarly discussion. (1)
In my own experience, success in treaty negotiations seemed always to depend on the same three or four crucial ingredients: a determination by at least a majority of states to have a treaty negotiated, a well thought-out methodology in place for how this outcome could best be achieved, and skilled lawyer diplomats at hand to chair the proceedings. By far the most important requirement, however, was the presence of enough individual negotiators who were prepared to unhinge their views from their initial instructions, and then allow those views to float and conform to the contours of an emerging consensus. If there was no listening, no elasticity guided in some measure by one's own conscience, and no knitting together of friendships between the delegates, no agreement, let alone a durable treaty, would be attainable. If every negotiator stuck rigidly to the instructions of their respective governments, without ceding ground on a single point to fellow delegates, customary law itself could never have been codified.
I have chosen to make these two assertions because it is, after all, the individual who both fears and inspires. It is the individual who will, if accused of an outrage, invoke his or her country's name, its laws and honor, and the right of immunities attaching to his or her sovereign office--even though the crimes for which this figure is accused should properly extinguish all and every argument serving their bid for impunity. It is the individual who will see this from afar, and then seek to envelop themselves with every measure of national protection, placing their country between themselves and the outside world, and its "world law".
It is also the individual, near or far, who will react to any flagrant abuse of power, call for change, and seek the creation of a new legal framework.
Or do they now? Or, more to the point: are there enough individuals to make a sustained difference?
In general terms, the legal community which serves political authority, directly, too often still sees itself merely as a technical service; skilled craftsmen employed by politicians to line the channels of expediency lavishly with legal reasoning, sufficient to ensure the triumph of this expediency, or political freedom of action, over everything else. In the context of international relations, this point is as obvious to us all, as it is ubiquitous.
I say this because in recognition of the state system as a legal system, we also acknowledge that nationality is one of the principal points of reference for us--one of the prime sources of our identity. (2) And, for many of us, as we make our way into the soup of international affairs, it can indeed be "the" principal identity. To borrow from the celebrated script of the late Abby Mann, we will do much "for love of country"; (3) there is, after all, a genuine loyalty the majority of us feel toward our respective national points of origin. We will often elect judges to international criminal tribunals solely because our country has been offered a trade, a reciprocal agreement, for another position it seeks elsewhere--with little consideration given to the legal qualifications of the candidate. We will condemn publicly the abuses being committed by international peacekeeping personnel, abuses which include the crimes of rape, the trafficking of human beings and illicit narcotics, but we will remain tight-lipped when it is our own peacekeepers who are doing so. The lawyers will often argue in the UN Security Council or in meetings of States Parties, that international criminal justice is too expensive. The spending must be brought under control, they will say, knowing full well this is not their burden to carry, but that of their compatriots representing the finance ministries with whom they seek, flagrantly, to curry favor. And when I say "we" or "the lawyers" I mean of course all of us, generally speaking, with no reference intended to any specific nationality.
The problem presents itself, clearly, therefore, in the following way: other colleagues working in adjacent streams of government are not unaware of this tendency. In the event the legal experts mount, subsequently, a vigorous defense of broader legal principle, their arguments may well be prone to ridicule so stained is their credibility. At the extreme, we could very well be viewed as the inseparable companions of hypocrisy.
This legal community which, in other circumstances, would practice and teach international law in all its variety, so often while in the service of government will rush to place its craft together with its moral underpinnings--however amorphous their nature--high on a scaffold for others to perform the public execution. There are the few who would of course resign, if policy ran roughshod over the better interests of the legal profession, or over general legal principle. But so rare are these occurrences it is small wonder they then become newsworthy and the lawyers concerned emerge from the backrooms of government to become folk heroes.
In his seminal work on courage, Lord Moran observed almost a century ago what seems so obvious to us now, that "Courage is a moral quality; it is not a chance gift of nature like an aptitude for games. It is a cold choice between two alternatives ... Courage is will power." (4) Because it requires a mental adjustment, a calculation where the apparent loss may include in some cases a job, a career, freedom perhaps, sometimes friends and even family, a demonstration of moral courage can be rare indeed. And why all the sacrifice? Only to be comfortable in the knowledge there is no self-betrayal, that in advancing a position, there is a correctness, a deeper purpose behind it, and also--fundamentally--a justness to it (however we may interpret that justness). It is very much all individual, as Sir Thomas More--that paragon of courage--well knew the night of 12 April 1534: the eve of his dramatic declaration that his own conscience would not allow him to swear the oath of obedience, recognizing the recently passed Act of Succession. (5) Every prisoner of conscience before and since has surely also felt it. As More spent his second month in the Tower of London, wedded to his famous silence, the government also knew it could ill-afford to act against him unlawfully and therefore sought to impose the king's will "while preserving legalities". (6) Over one year later, this was done, courtesy of the judges who ensured, in the words of one biographer, that: "tyranny succeeded not through war, but through law." (7)
I am always struck by the lessons of extremes and, in this vein, by the experience of the White Rose movement in Germany in 1942 and early 1943--a movement whose actions represent one of the purist acts of heroism in the Second World War.
While there were many...