Global rights?

Dear David,

The treaty signed last summer, establishing an International Criminal Court (ICC) aimed at bringing to justice individuals responsible for "crimes against humanity," has been welcomed by almost everyone in the field of human rights. You do not welcome the ICC; arguing that it is the wrong answer to the challenges posed by crimes such as ethnic cleansing, and you say that it will create disillusionment because, like its sponsor, the UN, it will be another international institution which promises more than it can deliver.

Your argument is based on the practical difficulties which the ICC is likely to experience in bringing offenders to justice. There is, you argue, no practical alternative to force as a means of stopping the kind of thing that happened in Bosnia and Rwanda-and in your view the only provider of the right kind of force is the US military. You point out that although the ICC is, as presently constituted, limited in its competence (so that Pinochet and Saddam Hussein lie beyond its reach), it interferes enough with national sovereignty to alarm those in the US who prefer isolationism.

I agree that the ICC's constitution and the current state of the world present big practical obstacles to the court. But that is no objection to its existence and the hope it offers. The establishment of the ICC is only one step in a journey which began with the adoption of the Universal Declaration of Human Rights 50 years ago. The Universal Declaration and its two associated Conventions (Geneva and Genocide) are now widely influential in international and domestic jurisdictions. Everyone has been conscious of the need for these human rights instruments to have teeth; the ICC is the first big step in realising that goal. As a culture of law in the international arena grows, so the ICC will grow in stature and effectiveness too.

I scarcely believe that you can disagree with the principle of the ICC: that there should be for the world community what any civilised national community has, namely, a properly constituted means of dealing with crime and wrongdoing. The trials at Nuremberg and Tokyo after the second world war provided precedents for bringing individuals to justice for violations of human rights, but those tribunals, and the one currently in operation for crimes in Bosnia, are ad hoc: a permanent, properly constituted institution is preferable.

At no point has the main claim of the ICC's advocates been that its existence will prevent all crimes against humanity, although it will certainly prevent some-we should not underestimate its deterrent effect on a would-be Pinochet or Pol Pot if he thought that at some stage he could be called to account. But it offers the alternative of justice in place of revenge for wrongs done; it offers the possibility of redress to those wronged; it offers a contribution to processes of reconciliation after conflicts; and it offers a chance to establish truth-or at least something better than rumour and legend-in the record of conflict in tragedies such as Bosnia and Rwanda.

Objecting to the ICC on grounds of the practical difficulty it faces is rather like objecting to Montgolfier's balloon because it is not (yet) a Boeing 747. Have patience: just as the introduction of law to the Wild West was (so Hollywood tells us) a difficult, slow process, so much more is the process of making the international arena a lawful domain.

Others complain that a process of "judicial creep" will eventually extend the ICC's powers to competence over, say, drug smuggling, environmental pollution, and beyond. Where, they ask, will it stop? I answer that some of these extensions would be a good thing, given the interdependence of the world economy. But I reject the implicit "slippery slope" argument; it is not beyond the wit of man to see where the jurisdiction of an ICC is most effectively applied, and where not.

It is easy to mock endeavours to improve the world-it is an honourable journalistic recreation to knock Big Ideas as a way of testing them-but my guess is that, in a generation or two, the work of the ICC will be established, and will make your option-which is that nothing but the international equivalent of a punch on the nose will ever be efficacious-seem primitive.

Yours,

AC Grayling

4th January 1999

Dear AC,

I am not a cynic; I am a pessimist. Leaving aside some of the practical questions about the ICC's effectiveness, I do think that some of its supporters have evaded the tougher questions of the consequences of its creation, particularly as it may affect other parts of their own agenda. In the US, some of the same human rights organisations which spearheaded lobbying efforts for the ICC have been relentless in their demands that the US intervene militarily in places such as Rwanda and Bosnia to halt genocide, and have championed various proposals to accompany humanitarian relief efforts with military force. But in the future the US military will be more resistant to pressures for it to deploy in some future Rwanda as a result of the existence of the ICC than it has been in the past.

If you are right, and the establishment of the ICC really does represent what you call the first big step towards giving teeth to the principles enshrined in the Universal Declaration of Human Rights, then perhaps, even if my fears are warranted, they are a small price to pay for something of such epochal significance. The problem is that I am not convinced that it is. My own suspicion is that for all the big talk of transformations of consciousness in the world in the 50 years since the Declaration came into existence, this brave new world of rights and principles is largely a fiction, a utopian tale woven by human rights activists and lawyers.

I discerned something of that faith when you said: "I scarcely believe that you disagree... that there should be for the world community what any civilised national community has, namely, properly constituted means of dealing with crime and wrong." But I do disagree; and this, rather than practical exigencies, lies at the root of my lack of sympathy for the ICC. To begin with, I don't believe there is such a thing as the world community. I am quite serious here. National communities, ethnic groups and tribes all share fundamental assumptions. Their laws are the products of long histories. In many instances, these laws have been forged after long and bloody struggles. In contrast, the world community is largely a legal and bureaucratic concept. To me, it has no deep legitimacy and little real history. The UN is not a world government; it is an association of sovereign states, an uneasy mix of talking-shop, alleviation machine and bureaucratic boondoggle.

Most of those who champion the ICC understand the limitations of the UN perfectly well, and are trying to take the first steps towards, if not world government, then at least the further subduing of national sovereignty through the back door of international law. But as someone who has seen the UN at work in Bosnia and Rwanda, I am not convinced that this brave new world of international civil servants, NGO activists, human rights workers and lawyers, is preferable to the old Westphalian system. For all its faults, I prefer democratic nation-states where officials can be thrown out by the voters.

The ICC may accomplish great things, although the claims of its adherents-which you seem to share-that it can help bring about truth and reconciliation, end the culture of impunity, and discourage at least some genocidal impulses, seem overblown, just as your faith that there exists any alternative to force in a situation such as Bosnia or a Rwanda, seems utterly contradicted by reality.

Kind regards,

David Rieff

5th January 1999

Dear David,

I do indeed take the view you repudiate, namely that humankind is one big (currently unhappy) family, and consider your opposing view about the naturalness of smaller units-nation, ethnic group-to be both false and harmful.

First, we live now in a globalised and interdependent world. This has been increasingly the case since 1945, and that is why there is now so much effective international law in the commercial and maritime domains. The existence of so many effective international institutions, from Unicef to the International Court of Justice in The Hague (to say nothing of Nato), shows that supra-national groupings, and by extension the international community itself, are concrete realities. You imply that the feebleness of the UN proves the contrary; but although the UN is indeed paralysed by division, and hamstrung by lack of funds, it has not existed for long-and global consciousness is growing fast, as proved by the very fact that the ICC treaty has been signed.

Second, the nation-state in which you place so much faith is an entity with a short and troubled history. I certainly do not think that state boundaries, almost all drawn on the world map by wars, confer sacred status on the groups of people living within them. If you have a point in this connection, it concerns democracy; but the descendants of Germans in Pennsylvania, Frenchmen in Louisiana, Spaniards in California and Englishmen, Dutchmen and Irishmen in New England all have a vote in the same elections in a country as big as all the states of Europe put together; so it would seem that large political entities of diverse peoples can be democratic-why put an upper limit on the number?

In the past, slowness of communication made political units small. It took time and effort to introduce the rule of law over large communities, and there were many failures. The ideal of bringing humanity under a single rule of law is utopian; but as with anything indisputably good, the task is to strive to approximate it as closely as possible.

Yours,

6th January 1999

Dear AC,

Malraux said that utopianism was admirable, but only so long as it proceeded from a realistic understanding of the world as it actually is. I don't think your argument for the ICC proceeds from any such understanding. You take your wishes for reality and, in doing so, champion an institution the implications of which you are unwilling to face.

It seems that because tribal, racial and national feeling seem so wicked and destructive to you, you are hoping that a world community, and the civilising legal and ideological norms which might accompany it, can come into existence, if only to save us from ourselves.

But I am not sure that globalisation is quite the fait accompli that you claim. Nor am I persuaded that the parallel you draw between international commercial law and criminal law is valid. By asserting the existence, and eventual victory, of this new global consciousness, you are making the very practical assumption, much loved by activists and international lawyers, that if you establish a new norm hoi polloi will eventually migrate to it.

To me, the sovereignty-subduing, human rights-upholding worldview that you champion is itself another "ism"-the ideology of the post-national new class, the people who are as comfortable in Tokyo as in Paris and for whom the nation-state, ethnic feeling, patriotism and the like seem like dangerous atavisms.

Where are the democratic safeguards in your new world order? A politician can be recalled; a UN bureaucrat or a judge cannot. The lack of accountability of the International Committee of the Red Cross, the "guardians" of international humanitarian law, surely would give anyone pause. Who guards the guardians of your better world?

You want to limit sovereignty. Very well. The reasons for that are clear enough, and we would agree on many. But what do you want to replace it with, and why do you believe so firmly that it is either possible or desirable to create a structure of international law for a world community that may never exist? To me, this seems like an abdication of politics.

Best wishes,

David

7th January 1999

Dear David,

I agree with Malraux; so let us look at the world as it actually is. It staggers under a burden of conflicts and inequities. Only a minority of its population-mainly we in the comfortable west-live peacefully and well; but a mere generation ago even we were bombing one another's civilian populations-or rounding them up to "cleanse" or gas them.

Many people in Europe, horrified by the bloody results of nationalistic rivalry and racist ideology in our century, are trying to forge new international arrangements in our continent, under which its residents are people first and members of a particular nationality second, and under which each individual has the hope of protection by or redress against, his fellow humans if he is the victim of wrongdoing. The arguments for the ICC and other internationalising arrangements generalise this worthy impulse to the world at large. The aim is to provide everyone on the planet with peaceful, civilised means for preventing, or at least lessening, conflict and tyranny. I accept that this internationalism-this faith in binding all the world's people together under agreed conceptions of rights and laws-constitutes an ideology. But any view we take about how to organise ourselves-including your tried and failed nation-state-is construable as such. There is no harm in that; we cannot do without one or another theory. We just have to ensure that it is a good one, and keep it under lively scrutiny.

I agree that there must be democratic controls on the institutions which administer that law. But you seem to believe that the world is too big a place for democracy; so you must think there is an upper limit to how large a law-governed community can be. The US is big; is it too big, or just the right size? When did it become the right size? Will it still work as a democracy when its population has doubled? China has a fifth of the world's population. If it could conceivably be a democracy, why could the world as a whole not be one?

I do not think it likely that the world will ever be one country with one government, but that does not mean that its peoples cannot jointly create and operate institutions such as the ICC. Indeed, as I have said, such institutions already exist and function effectively in large numbers, and this is the trend of the future. Sending large numbers of young men to kill each other as a way of settling disputes seems so primitive in comparison, reminiscent of schoolyard fisticuffs-but with missiles and nuclear warheads. As someone said, we are cleverer now than when we fought with spears, but not wiser. The ICC and similar institutions are coming into existence because the world can no longer afford the old ways.

Best wishes,

8th January 1999

Dear AC,

We both believe our world is staggering "under conflicts and inequities." What divides us are two related issues. Is there anything to be done and, if so, what should decent people expend their energies struggling for? Even asking the first question will seem unduly pessimistic, perhaps even immoral, to you. In these politically correct, sentimentalising times in the rich world, where the goal of both public and private discourse often seems to be to occlude reality, it is not an acceptable thing to ask. Which is why asking it is more essential than ever. If, as you say, we are no wiser than we were centuries ago, how can you claim that the kind of transformations you believe institutions such as the ICC herald have any hope of coming to pass?

Even leaving aside the larger issue of whether we as human beings have it in our nature to abandon violence and cruelty-remember Freud's terrifying insight about war being a human need-two other questions loom large. Is law the appropriate instrument with which to begin such a radical transformation of consciousness? And are we just spreading a European consensus to other parts of the world, attempting to impose norms for which the historical bases of legitimacy have not yet been established?

If, for example, during the Wars of Religion, some extra-terrestrial force could have descended and compelled the catholics and protestants of France to stop killing each other, the edict would have made no sense at all to the belligerents. In the wars of post-colonial succession now taking place in Africa, they don't make sense either.

That is the problem with law-based schemes of human improvement: they take no account of history. What you and other advocates of this new international order fail to recognise is that the consensus for building a post-national Europe could only come in the aftermath of the two world wars in which the states of Europe immolated themselves-and even then took another 50 years to achieve the modest form of the EU. To argue that by passing laws, or concluding treaties, this hard-won consensus can be generalised-even if it is the best and most humane way for societies to order themselves-is to show an arrogance towards the historical experiences of other peoples. It may be 1999 by the calendar everywhere, but it is not the same 1999 in the forests of the eastern Congo as it is on the Flanders fields. Anyone who really wants to make the world a better place-not merely feel better about his or her place in that world-must begin by recognising that fact.

Best wishes,

David