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Alfred de Zayas[1]

The human cost of armed conflict is such that international law qualifies aggression as the gravest crime possible, genuinely more serious than the war crimes that inevitably ensue during armed conflict.  The United Nations was founded “to save succeeding generations from the scourge of war” (Preamble), and Article 1, paragraph 1, of the Charter establishes its mandate “to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression …” Article 2, paragraph 3, imposes an obligation to negotiate: “All members shall settle their international disputes by peaceful means”; and Article 2, paragraph 4, engages States to “refrain in their international relations from the threat or use of force”.

This prohibition of force has been repeated in countless resolutions of the Security Council and of the General Assembly, most importantly in GA Resolution 2625 (XXV) of 24 October 1970, Resolution on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, which solemnly proclaims:

“Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues. A war of aggression constitutes a crime against the peace, for which there is responsibility under international law.  In accordance with the purposes and principles of the United Nations, States have the duty to refrain from propaganda for wars of aggression.”

This obligation is also stipulated in Article 20 of the International Covenant on Civil and Political Rights: “Any propaganda for war shall be prohibited by law.”

Thus, aggression is not only an internationally wrongful act giving rise to State responsibility and the obligation to make reparation, it is also an international crime giving rise to personal criminal liability.

Prior to the First World War, aggression had not yet been declared to be an international crime and war was still perceived as a legitimate means of achieving political objectives.  The human catastrophe of the First World War (“the war to end all wars”), leaving ten million deaths in its wake, led to the creation of the League of Nations (predecessor of the United Nations), and many countries sought to devise ways to ban war as an exercise of State sovereignty.

On 27 August 1928 at Paris, the Kellogg-Briand Pact was signed, spearheaded by the US Secretary of State Frank Kellogg, the French Minister of Foreign Affairs Aristide Briand and the German Minister of Foreign Affairs Gustav Stresemann. By virtue of Article i, the forty-five States parties “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy”; in Article ii, they “agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be … shall never be sought except by pacific means”.

As a corollary to the Pact, a subsequent American Secretary of State, Henry Stimson, enunciated the doctrine of non-recognition of international territorial changes effected by force.  This doctrine was a response to Japan’s unilateral seizure of Manchuria in September 1931 and was subsequently reflected in several international declarations, including a League of Nations resolution of 11 March 1932, the Inter-American Pact of Rio de Janeiro  of 10 October 1933 and the Budapest Articles of Interpretation (10 September 1934) to the Kellogg-Briand Pact.

Alas, this first international movement to ban war did not prevent the outbreak of the Second World War, which would take 50 million lives, five times as many as the first conflagration.  Hitler was the principal, but not the only, aggressor. The Soviet Union, for instance, attacked Poland in September 1939, together with Germany, pursuant to a secret treaty signed by Foreign Ministers Ribbentrop and Molotov in which they divided Poland among themselves. In October 1939, the Soviet Union assaulted the three Baltic States—Estonia, Latvia and Lithuania—and occupied and annexed them; in November 1939, it attacked Finland, robbed it of 18,000 square miles of territory and forced 450,000 Finns to resettle elsewhere.  For the latter aggression, the Soviet Union was formally expelled from the League of Nations in December 1939.

Following the capitulation of the German Wehrmacht in May 1945, the Allies adopted the London Agreement of 8 August 1945, which contained the Charter of the Nuremberg Tribunal.  Article 6(a) of this Charter provided for a new category of crime in international law—crimes against peace:

“namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing”.

Although this constituted undoubtedly an ex post facto penal law, as noted by US Chief Justice Harlan Stone and by Justice William O. Douglas, many Nazis were indicted and convicted of this offence, including Goering, Hess, von Ribbentrop, Keitel, Rosenberg, Frick, Funk, Jodl, Seyss-Inquart, von Neurath, Raeder and Dönitz, seven of whom were also sentenced to death.

By virtue of General Assembly Resolution 95(1) of 11 December 1946, the Nuremberg judgment, including the condemnation of aggression, was recognized as binding international law and the International Law Commission (ILC) was entrusted with drafting what became known as the “Nuremberg Principles”, which were adopted in July 1950, including the definition of the crime against peace.  In General Assembly Resolution 177 (II) of 21 November 1947, the ILC was mandated to prepare a code on offences against the peace and security of mankind.  After nearly forty years of work and continuous consultation with States, the ICL adopted in 1996 a “Draft Code on Crimes Against the Peace and Security of Mankind”.  Article 16 of the draft code contains the following statutory definition of the responsibility for the crime of aggression:

“An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression”.

The ILC’s draft code, however, has not yet become binding international law.

statute of the international criminal court

On 17 July 1998, the Diplomatic Conference of Rome adopted the Statute of the International Criminal Court[2],  which defines the jurisdiction of the Court in its Article 5, including with respect to the crime of aggression.  Paragraph 2 of Article 5, however, stipulates:

“The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.”

This delay in the exercise of the Court’s competence with regard to aggression is primarily attributable to the opposition of the United States.  However, since the United States, which originally had signed the Statute, has indicated that it will not ratify it, the assembly of States parties to the Rome Statute is now free to adopt a definition consistent with the judgment of the Nuremberg trials and with General Assembly Resolution 3314 (XXIX) of 14 December 1974.  A meeting of States parties shall take place in Kampala in June 2010 and will be discussing a draft definition which has been prepared by a working group of experts.  It would be desirable that the Conference of States Parties agree as soon as possible on a definition of aggression, so as to make Article 5 of the statute operative.  Thus, a measure of deterrence would be achieved if all potential aggressors know that one day they may be called to account before the ICC.

definition according to general assembly resolution 3314

The Resolution provides in Article 1:

“Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”

Article 2 stipulates:

“The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.”

Article 3 stipulates:

“Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a)   The invasion or attack by the armed forces of a State of the territory or another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,

(b)  Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c)   The blockade of the ports or coasts of a State by the armed forces of another State;

(d)  An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

(e)   The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f)   The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g)   The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Article 5 of the definition warns that:

“1. No consideration of whatever nature, whether political, economic, military or

otherwise, may serve as a justification for aggression.

2. A war of aggression is a crime against international peace. Aggression gives rise to

international responsibility.

3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.”

Article 7 explains, however, that:

“nothing in this Definition … could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of persons forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination, nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.”

The UN General Assembly has reaffirmed the consensus definition in several declarations, including the Declaration on the Deepening and Consolidation of International Détente (Res. 32/155 of 19 December 1977), the Declaration on the Preparation of Societies for Life in Peace (Res. 33/73 of 15 December 1978)) and the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations (Res. 42/22 of 18 November 1987).

Inexplicably, the Security Council has avoided making reference to the consensus definition.  Even in a case as clear as the 1990 aggression of Kuwait by Iraq, the Security Council condemned it merely as an “invasion and illegal occupation”  (Res. 674/1990), and decided that “the annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity, and is considered null and void” (Res. 662 (1990). However, no reference was made to the application of Article 3(a) of the Resolution on the Definition of Aggression or to the international responsibility that emanates from aggression pursuant to Article 5.

Nevertheless, the language of Resolution 3314 deserves general reflection and application, bearing in mind that since the Second World War there have been many armed conflicts and many instances of aggression.  Such wars ought to be measured against the standards laid down by the UN Charter, the Nuremberg Principles and the Declaration on the Definition of Aggression.  It is worth examining, for instance, whether the colonial wars were compatible with Article 2, paragraph 4, of the Charter.  How are we to judge the Dutch “police actions” in Indonesia (1947-1950), the French Indochina wars (1952-1954), the French-Algerian conflict (1954-1963)?  Who was the aggressor in the Korean War 1950-1953?  In the Indian-Pakistani war 1970-1971?   How should we evaluate the Soviet Union’s invasion of Hungary on 4 November 1956, the Warsaw Pact’s invasion of Czechoslovakia on 20 August 1968, the Soviet Union’s occupation of Afghanistan in 1980?  Who was the aggressor in the Six-Day War of 1967?  How are the incursions of Israel into Gaza and the Occupied Palestine territories to be evaluated?  Were Israel’s military actions in Lebanon in 2006 aggression or legitimate self-defence? Who was the aggressor in the Iraq-Iran War 1980-1988?  How is the Turkish invasion of Cyprus in 1974 and its subsequent occupation of Northern Cyprus to be rated?  Who was the aggressor in the British-Argentinean war of 1982 on the issue of sovereignty over the Malvinas/Falkland Islands? What are the legal consequences of the NATO bombardment of the Federal Republic of Yugoslavia in 1999 in the absence of Security Council approval? Who bears international criminal responsibility for the U.S.-led invasion of Cuba, in 1961, its involvement in the Vietnam War, including the saturation bombing of North and South Vietnam, Laos and Cambodia, for the U.S. invasion of Grenada in 1983, the military and paramilitary activities in Nicaragua in 1983-1986[3], the invasion of Panama in 1989, the war against Afghanistan in 2001, the assault on Iraq in 2003[4], the subsequent occupation of Iraq, including  the massacre of civilians in Fallujah in 2004, the military incursions into Pakistan and frequent drone attacks, etc.?  How are we to judge the use of force in the territory of other countries, such as the sinking of the Greenpeace vessel Rainbow Warrior in Auckland Harbour in New Zealand by French special forces in 1985?  The list could be continued.

impunity, people’s tribunals

Impunity in international law remains a thorny issue.  The UN General Assembly, the old Commission on Human Rights, the new Human Rights Council and the UN Human Rights Committee, among others, have repeatedly condemned impunity for the crime of aggression, war crimes and crimes against humanity, but there is no mechanism to punish aggressors, and the historical experience has been that aggressors go unpunished unless they are totally defeated and must accept unconditional surrender.  For this reason, it is worth recalling that, at the opening of the Nuremberg Trials, United States chief prosecutor Robert Jackson stated:

“We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow … While this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgment.”[5]

Sixty-three years after Jackson’s admonition, the principle deserves our attention more than ever.  None of the Special Tribunals created since have had jurisdiction over the crime of aggression, not the International Tribunal for the Former Yugoslavia, not the International Tribunal for Rwanda, not the Iraqi Special Tribunal.

Precisely because no international tribunal has been given competence to try aggressors for the crime of aggression, a number of representatives of civil society have organized “People’s Tribunals”, notably the Russell Tribunal on the Vietnam War, organized by British pacifist Bertrand Russell and French philosopher Jean Paul Sartre (held 1967 in Sweden and Denmark) and the Brussels Tribunal on the Iraq War[6], organized by former US Attorney-General Ramsey Clark (April 2004), with the participation of two ex-United Nations humanitarian coordinators for Iraq, Denis Halliday and Hans von Sponeck[7].  Both tribunals condemned the United States as an aggressor in Vietnam and as an aggressor in Iraq.  There is also a “Permanent People’s Tribunal” (Fondation Internationale Lelio Basso)[8], which has held more than 30 sessions, one of them in Paris in 1984, devoted to the genocide against the Armenians, and one held in Rome in 2002, devoted to international law and the new wars of aggression.

justifications for the use of force

Self-defence

There are, of course, justifications for the use of force which are legitimate according to international law.  Article 51 of the UN Charter stipulates:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

The application of this provision is, however, strictly limited by the over-all obligation to negotiate set forth in Article 2, paragraph 3, and the prohibition of the threat of or the use of force in Article 2, paragraph 4, of the UN Charter.  In his address to the General Assembly on 23 September 2003, Secretary-General Kofi Annan stated:

“Article 51 of the Charter prescribes that all states, if attacked, retain the inherent right of self-defence … [U]ntil now it has been understood that when states go beyond that, and decide to use force to deal with broader threats to international peace and security, they need the unique legitimacy provided by the United Nations.”

The International Court of Justice has specified the situations in which Article 51 can be invoked, most recently in the advisory opinion of  9 July 2004, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”[9].

The consensus of international law experts is that preventive or pre-emptive war is not compatible with Article 51 of the Charter, which requires an existing “armed attack” and places overall responsibility on the Security Council. Moreover, even in a legitimate self-defence situation, this does not justify the continuation of a war. Article 51 is intended to allow immediate self-help, but only “until the Security Council has taken measures necessary to maintain international peace and security.” This means that the victim of aggression cannot use the initial aggression as permission to conduct a full-fledged war without approval of the Security Council.

Humanitarian Intervention and Responsibility to Protect doctrines

Humanitarian intervention is another possible justification for the use of force, and it remains the responsibility of the Security Council to legitimize or not a given military intervention.  Approval was, for example, given in Resolution 688 of 5 April 1991 with respect to the necessity to create safety zones for Kurds and other minorities in Iraq.  Humanitarian intervention would also have been possible in order to stop the genocide in Cambodia (1975-1979) or in Rwanda (1994).  While humanitarian intervention may be an international duty (“responsibility to protect” doctrine) in order to stop genocide and crimes against humanity, it must not become a cloak or an excuse for military interventions responding to other political agendas.  For instance, Human Rights Watch conducted a study of the arguments advanced by the United States as justification for the war on Iraq 2003 and concluded that the US intervention did not satisfy the constitutive elements of a humanitarian intervention.[10]

At the Millennium Summit 2005 a new concept was introduced into the jargon of international law, the doctrine of “responsibility to protect” (R2P)[11], which is but a variant of the older humanitarian intervention logic.  Of course, in the nation-State system of the United Nations, the responsibility to promote and protect human rights belongs to the territorial State.  International solidarity is desirable for States to better implement this responsibility, but interventions into the internal affairs of States are and will remain contrary to international law.

Violations of human rights occur in all countries of the world, not only in failed states, not only in so-called rogue states.  If there is an issue of intervention, the crucial issue that arises is one of degree, of threshold. When are the violations of human rights so grave and unbearable that it becomes the responsibility of the international community to intervene? Where does the threshold for military intervention lie?  And will intervention cause more suffering than non-intervention? How will the principle of proportionality be respected?

Here it must be recalled that the Preamble of the United Nations Charter and many of its provisions, including articles one and two, commit the organisation to the noble task of making peace, keeping peace, re-establishing peace. The United Nations was not created to make war or to engage in military interventions into the domestic affairs of states.  This is clearly contrary to the object and purpose of the Charter, and specifically prohibited in article 2, paragraph 7.

And yet, one can think of situations where international action would have been necessary to prevent genocide, and yet it was not forthcoming because of a lack of international political will. There are other cases where military intervention has taken place, although many observers had argued before and after the intervention that the threshold of violence in the countries concerned had not been passed, and that intervention was not justified.  Notwithstanding objections, major military operations, including the employment of cluster bombs and radioactive weapons containing depleted uranium, were conducted without the approval of the Security Council and in clear violation of article 2, paragraph 4, of the Charter.  Among these assaults were the NATO military incursions in Kosovo in 1999[12] and the so-called Operation Iraqi Freedom[13], carried out against Iraq by a “coalition of the willing” in 2003.  Article 2, paragraph 3, of the Charter mandated negotiations.  In both cases the so-called rogue governments in Belgrade and Baghdad were willing to negotiate without preconditions. And yet the “good” governments had already decided on the path of military force, rejecting other options.  In both cases they caused far more dying and far more misery than before the military interventions.

Because of the grave danger that the doctrines of “humanitarian intervention” and of “responsibility to protect” might be instrumentalized in order to circumvent the prohibition of the threat of and of the use of force in article 2, paragraph 4, of the Charter, the General Assembly started revisiting R2P in July 2009. At the opening of the thematic dialogue, the President of the General Assembly, Miguel d’Escoto Brockmann, identified four benchmark questions that should be examined in order to determine whether and when the UN system of collective security can implement R2P. According to d’Escoto the first test is:

“Do the rules apply in principle, and is it likely that they will be applied in practice equally to all nation-states, or, in the nature of things, is it more likely that the principle would be applied only by the strong against the weak?”

The second benchmark question is:

“Will adoption of the R2P principle in the practice of collective security more likely enhance or undermine respect for international law? To the extent that the principle is applied selectively, in cases where public opinion in P5 Member States supports intervention, as in Darfur, and not where it is opposed, as in Gaza, it will undermine law.”

A third benchmark question is:  “Is the doctrine of R2P necessary and, conversely, does it guarantee that states will intervene to prevent another Rwanda?”

The fourth vital test is whether the international community has the capacity to enforce accountability upon those who might abuse the right that R2P would give nation-states to resort to the use of force against other states?

These are important questions, and the international community cannot escape them if it wants to remain true to the Purposes and Principles of the United Nations.  We must all be very alert to prevent new doctrines from eroding the UN commitment to the peaceful settlement of disputes.

Bearing in mind that the United Nations Charter imposes certain erga omnes obligations on States, one of those obligations is to condemn the illegal use of force and to deny recognition of the consequences of the illegal use of force. Indeed, there is a Responsibility to Protect – but first and foremost, it is a responsibility to protect humanity from the scourge of war, and most importantly to protect humanity from Weapons of Mass Destruction, including Nuclear Weapons.

In this context it is appropriate to recall that operative paragraph 2 of Resolution 11/4 of the Human Rights Council of 17 June 2009 stipulates “that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of states”.  Quite concretely, this entails a responsibility to protect humanity from wars of aggression, in particular, a responsibility to protect humanity from nuclear destruction, from the destruction of the environment through the use of radioactive weapons with depleted uranium, from the pollution of the environment through new weapons such as cluster bombs.

At the vanguard of the movement toward nuclear disarmament former Soviet President Mikhail Gorbachev, President of Green Cross, has been most eloquent[14].  At a UNITAR Conference on the subject of disarmament, held on 5 October 2009 in the General Assembly Hall of the Palais des Nations in Geneva[15], Gorbachev urged States parties to the Non Proliferation Treaty to take their responsibilities under article 6 seriously and to engage in serious disarmament negotiations, thus liberating billions of dollars for the peaceful development of the world and for the achievement of the Millennium Development Goals.[16]

a human right to peace

The right to peace does not entail exclusively an international prohibition of aggression.  This right must also be understood in the perspective of human rights.  Indeed, among the so-called third generation rights, the right to peace is paramount because, unless humanity enjoys peace, it cannot exercise its first and second generation rights, namely its civil, political, economic, social and cultural rights.

Among the provisions of “hard law” that can be invoked to sustain peace as a human right, Article 6 of the International Covenant on Civil and Political Rights stipulates: “ Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

The Human Rights Committee is the organ created to monitor compliance with the provisions of the Covenant.  In so doing, the Committee has issued two “general comments” or interpretative declarations on the content and implications of this provision.  In the first general comment on article 6, adopted on 27 July 1982, the Committee observed:

“that war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year. Under the Charter of the United Nations the threat or use of force by any State against another State, except in exercise of the inherent right of self-defence, is already prohibited. The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life. Every effort they make to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life. In this respect the Committee notes, in particular, a connection between article 6 and article 20, which states that the law shall prohibit any propaganda for war (paragraph 1) or incitement to violence (paragraph 2) as therein described.”[17]

In the Committee’s second general comment on article 6, adopted on 2 November 1984, the Committee observed:

“It is evident that the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today.  This threat is compounded by the danger that the actual use of such weapons may be brought about, not only in the event of war, but even through human or mechanical error or failure. Furthermore, the very existence and gravity of this threat generates a climate of suspicion and fear between states, which is in itself antagonistic to the promotion of universal respect for and observance of human rights and fundamental freedoms…The production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity. The Committee accordingly, in the interest of mankind, calls upon all States whether parties to the Covenant or not, to take urgent steps, unilaterally and by agreement, to rid the world of this menace.”[18]

There have also been important developments in the field of soft law. On 12 November 1984, the United Nations General Assembly adopted Resolution 39/11 annexing the Declaration on the Right of Peoples to Peace, which reaffirms “that the principal aim of the United Nations is the maintenance of international peace and security” and the “aspirations of all peoples to eradicate war from the life of mankind and, above all, to avert a world-wide nuclear catastrophe”.  By virtue of operative paragraph 2, the Declaration proclaims “that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State”.

In paragraph 3, the Declaration:

“demands that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means.”

This Declaration has been reaffirmed in many resolutions of the General Assembly and of the United Nations Commission on Human Rights.  In its Resolution 2002/71, “Promotion of the right of peoples to peace”, of 25 April 2002, the Commission linked the right to peace with the right to development, and affirmed:

“that all States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries”

The Commission further urged:

“the international community to devote part of the resources made available by the implementation of disarmament and arms limitation agreements to economic and social development, with a view to reducing the widening gap between developed and developing countries.”

In April 2008, the United Nations Working Group on the Use of Mercenaries as Means of Violating Human Rights and Impeding the Rights of Peoples to Self-determination devoted much time to examining the violations of human rights and of the right to peace by private military companies and private security contractors.  On 10 March 2008, the President of the Working Group, Mr. José Luis Gómez del Prado, delivered an important statement to the Human Rights Council, highlighting inter alia the dangers presented by the privatization of war.

A recent initiative of civil society, which has been endorsed by UNESCO and over 150 non-governmental organizations (NGOs) with UN consultative status, is the Luarca Declaration of 2006, drafted by the Spanish Society for International Human Rights Law (SSIHRL), a group of Spanish professors of law and international relations[19].  The Declaration, adopted on 30 October 2006 in Luarca, Spain,  elaborates the many aspects of the right to peace in a holistic manner, and goes on to propose the establishment of a Working Group of experts to engage in “early warning”, preventive action strategies and generally monitor compliance with the Declaration.

The Declaration was officially presented to the fourth session of the Human Rights Council in Geneva by Professor Carlos Villán Duran on 15 March 2007 and has been discussed since then in academic symposia and expert meetings in all regions of the world, including all sessions of the Human Rights Council, and several UN round tables in 2007, 2008 and 2009.  A world NGO conference is scheduled to be convened in Santiago de Compostela (Spain) on 9-10 December 2010 on the occasion of the World Social Forum on Education for Peace (“Forum 2010”).  The Conference will discuss a final draft declaration representing the interests of international civil society as a whole.  Then the SSIHRI, and associate organizations will submit the draft declaration to the Human Rights Council, urging Member States to initiate the formal codification of the human right to peace. At the end of the process, the UN General Assembly would adopt the Universal Declaration on the Human Right to Peace.

A significant success in the journey toward the proclamation of the Declaration by the GA was the adoption of Resolution 11/4 on “The Right of Peoples to Peace” by the UN Human Rights Council on 17 June 2009. Pursuant to this resolution an expert workshop on the right of peoples to peace was organized by the Office of the UN High Commissioner for Human Rights (OHCHR) at the United Nations Office in Geneva on 15-16 December 2009[20], during which the expert participants explored the collective and individual aspects of the right to peace, linking this right to the principle of international solidarity, based on a common human dignity.

Panelists in the workshop noted that many rights that we exercise are both collective and individual, such as cultural rights. We exercise these rights in community with others, but also individually when we read our own literature, when we write a poem, when we listen to our folk tunes, when we wear our national colours, take pride in our cultural heritage. It was mentioned that there is a tendency to perceive the right to peace primarily from the perspective of collective rights and to ignore its individual right component.  And yet, peace is very much a personal right, for instance when an individual exercises his right to conscientious objection to military service, a right recognized in the jurisprudence of the Human Rights Committee under the Optional Protocol[21].  Similarly, this individual right to peace is manifested by refusing to participate in an illegal war of aggression.

While some positivists may be tempted to question whether a right to peace exists, the workshop had no hesitation in affirming its existence.  This fundamental right, however, has not been given the attention that it deserves. Of course, peace is not a “simple” right like the right to property.  Indeed, it is prior to and indispensable to other rights – it is immanent in them.

The workshop’s approach to peace saw it as an enabling right, empowering humanity to enjoy the other human rights. Moreover, peace was perceived as the reward, as a result of humanity’s many-faceted promotion of other human rights.  Indeed, if we have peace in the holistic sense of the term, we have human rights. If we have human rights, we have peace.

The positivistic view of peace as the absence of war no longer satisfies.  This is but negative peace. What humanity needs is to ensure positive peace in the form of social justice:  Si vis pacem, cole justitiam – if we want peace, we ought to cultivate justice: This is the ILO motto, engraved at ILO building in Geneva.  In this sense, the right to peace must be understood and implemented in a holistic manner – taking into account the many building blocks of peace, including the respect of civil and political rights – and focusing also on the obligations that Peace imposes both on States and on individuals.  Thus, Article 20 of the International Covenant on Civil and Political Rights prohibits propaganda for war.  Unfortunately both governments and private persons actively engage in euphemisms and less disguised advocacy of military force. It is particularly troubling to see university professors and pundits in think tanks demonizing other peoples and cultures, creating an atmosphere of fear, preparing public opinion for the inevitability of war – instead of promoting a better understanding of other cultures and peoples, instead of developing prevention strategies, so as not to fall into the dynamic of armed conflict, instead of studying the root causes of terrorism and formulating strategies how to combat it.

The legal profession has a special responsibility with regard to legal terminology. Lawyers should endeavour to write and to interpret law in a manner that encourages dialogue and negotiation, that advances human rights, in a manner that does not allow circumvention and abuse.  Lawyers should make use of all the UN mechanisms and possibilities for the peaceful settlement of disputes, including good offices, arbitration, conciliation, mediation, adjudication — and be careful not to short-circuit the system and facilitate the use of force and military aggression.  Civil society should be alert and protest against the pollution of terminology entailed in twisted concepts like “illegal but legitimate”, or a variant “legal but of questionable legitimacy” (former British UN Ambassador Jeremy Greenstock).  Civil society ought to protest against the intellectually dishonest attempt to revive the doctrine of “just wars”, which is obsolete in the modern world, a doctrine that is all too easily subject to manipulation. More and more we witness a deliberate pollution of terms, invented loopholes, red herrings, cheap subterfuges to throw a mantle of quasi respectability over vulgar aggression.

A new human rights paradigm

In 2008, the world commemorated the 60th anniversary of the adoption of the Universal Declaration of Human Rights of 10 December 1948. Some scholars took advantage of this occasion to revisit the semantics of human rights and question the widespread misconceptions emanating from an obsolete terminology which postulates an arbitrary hierarchy of human rights.  The so-called “first generation rights” (civil and political) are preferred in Europe and the United States over the “second generation rights” (economic, social and cultural) and are deemed more important than the “third generation rights” (the right to truth, to development, to a clean environment, to peace).  This perceived hierarchy of human rights should be abandoned and substituted by a new approach.  I would propose three functional categories:

1) enabling rights such as peace;

2) over-arching rights such as equality; and

3) end rights such as the right to identity, to be just who we are.

Indeed, we can understand the so-called third generation rights as “enabling rights”, empowering us to enjoy civil, political, economic, social and cultural rights.  But peace is much more than just an enabling right: it is also an over-arching and an end right. It is alpha and omega, the starting point, the means and also the end of human endeavor.

Indeed, the world has changed since 1948.  World population has grown from 2,500 to 6,500 million human beings.  It is expected to reach 9,000 million by the year 2048, the centennial of the UDHR.  The gulf between the rich and the poor has continued to grow alarmingly.  Does the world need a new Declaration of Human Rights for the new millennium?  The University of California at Berkeley has launched Project 2048 with a new vision[22]. The Project envisages new human rights paradigms and the formal codification of fundamental rights such as the right to peace; it also envisages the establishment of an International Court of Human Rights.

Reaffirming our conviction that peace is a human right, let us recall the famous preamble of UNESCO’s Constitution which stipulates: “Since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed.”[23]  Here it is that literature has such an important role to play. Through enhanced knowledge and appreciation of each other’s literature we can contribute to the expansion of the culture of peace and human rights.  The international association of writers P.E.N. (Poets, Essayists, Novelists), founded in London in 1921, enshrines this worldwide commitment to peace in its Charter: “Members of PEN should at all times use what influence they have in favour of good understanding and mutual respect between nations; they pledge themselves to do their utmost to dispel race, class and national hatreds, and to champion the ideal of one humanity living in peace in one world.” http://www.englishpen.org/membership/charter/

conclusion

In a world of weapons of mass destruction, it is imperative to strengthen the early warning and peaceful settlement mechanisms of the United Nations.  Armed conflict must be prevented through a collective commitment to negotiation.  The use of force must not be allowed, except as a last resort, when all avenues of peaceful settlement have been exhausted, and only conditioned on Security Council approval.  For the sake of the survival of the human species, the right to peace must be protected not only by norms and tribunals but by education toward a culture of peace.

Indeed, the recognition of peace as a human right requires more than just the prohibition of war.  What is necessary is to create the conditions for peace.  A world without extreme poverty, a world without profound injustices, is a world less likely to go to war than our present world is.

It is appropriate to recall the motto of the Peace of Westphalia of 1648: Pax optima rerum (peace is the highest good). This Peace Treaty that ended the 30 Years War is a milestone in the development of international law.  Let us hope that in the 21st century civil society will prevail upon its democratically elected representatives to take international law more seriously than hitherto, to enforce its provisions in good faith, and not just à la carte.  Enshrined in the Preamble and Article 1 of the United Nations Charter, peace is and must remain at the heart of the United Nations agenda, because it is its raison d’être.

selected bibliography

Amnesty International, NATO/Federal Republic of Yugoslavia: “Collateral damage” or unlawful killings.  Violations of the Laws of War by NATO during Operation Allied Force, Report Amnesty International, June 2000.

Bassiouni, M. Cherif, The Statute of the International Criminal Court. A Documentary History . Transnational Publishers, New York, 1998.

Broms, B. “The Definition of Aggression”, in Recueil des Cours de l’Académie de Droit Internationale, Vol. 154 (1977/i), pp. 299-399.

Cassin, V. et al., “The Definition of Aggression”, 16 Harvard International Law Journal, 1975, pp. 598-613.

Dinstein, Yoram.  War, Aggression and Self-Defence , Cambridge University Press, 2d. ed. 1994.

Douglas, William O. An Almanach of Liberty. Doubleday, New York, 1954, especially p. 96.

Fastenrath, Ulrich, “Definition of Aggression”, in H. Volger (ed.), A Concise Encyclopedia of the United Nations. Kluwer Law International, The Hague, pp. 11-14, 2002.

Ferencz, Benjamin.  Defining International Aggression. The Search for World Peace, A Documentary Analysis, Dobbs Ferry, New York, Oceana Publications, 1975.

Ferencz, Benjamin.  “Aggression”, in R. Bernhardt (ed.), Encyclopaedia of Public International Law, Vol. 1 (1992), pp. 58-65.

Gómez del Prado, José Luis. “Oral statement by the President of the Working Group on the use of mercenaries as means of violating human rights and impeding the rights of peoples to self-determination”,  Human Rights Council, 7th Session, Geneva, 10 March 2008. Available in English and Spanish at: <http://www2.ohchr.org/english/issues/mercenaries/index.htm&gt;.

International Military Tribunal. Trial of the Major War Criminals, Nuremberg 1949, Jackson transcript of 21 November 1945, Vol. II, pp- 98 et seq. at p. 101.

Kant, Immanuel: Perpetual Peace: A Philosophical Sketch, Königsberg, 1795. http://www.constitution.org/kant/perpeace.txt.

Ramonet, Ignacio: Wars in the 21st Century. New Threats. New Fears. Ocean Press, Melbourne, 2004.

Roth, Kenneth. War in Iraq: Not a Humanitarian Intervention.  Human Rights Watch, New York, 2004.

Schwebel, S.M. “Aggression, Intervention and Self-Defence in Modern International Law”, in Recueil des Cours, Vol. 139 (1972/ii), pp. 411-497.

Solomon, Norman:  War Made Easy, John Wiley and Sons, Hoboken, 2005.

Villán Duran, Carlos and Carmen Rueda Castañón, La Declaración de Luarca sobre el Derecho Humano a la Paz. Ediciones Madu, Granda, Asturias, second revised editionn 2009.


[1] Alfred de Zayas, J.D. (Harvard), Dr.phil. (Göttingen), retired Secretary of the UN Human Rights Committee, Chief of Petitions at the Office of the UN High Commissioner for Human Rights.  Author together with Jakob Th. Möller of United Nations Human Rights Committee Case Law 1977-2008, N.P. Engel, Kehl/Strasbourg, 2009.

[4] On several occasions the then UN Secretary General Kofi Annan referred to the Iraq war as « incompatible with the UN Charter » and as an “illegal war” http://news.bbc.co.uk/2/hi/3661134.stm.

[5] International Military Tribunal, Nuremberg, The Trial of the Major War Criminals, Vol. 2, 21 November 1945, p. 101.

[7] http://www.medialens.org/articles/the_articles/articles_2001/dh_vs_hostage_nation.html Celso N. Amorim, Hans C. Von Sponeck, A Different Kind of War: The UN Sanctions Regime in Iraq. Providence: Berghahn Books, 2006;  Hans C. von Sponeck, Andreas Zumach, Irak: Chronik Eines Gewollten Krieges: Wie Die Weltoffentlichkeit Manipuliert Und Das Volkerrecht Gebrochen Wird, Kiepenheuer & Witsch, Cologne, 2003.

[11] Paras. 138 and 139 of the Outcome Document of the 2005 World Summit stipulate: “138. Each individual State has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.”   http://unpan1.un.org/intradoc/groups/public/documents/UN/UNPAN021752.pdf
http://www.responsibilitytoprotect.org/index.php?option=com_content&view=article&id=398

[12] Norman Solomon, War made Easy, John Wiley and Sons, Hoboken, 2005.

[17] Human Rights Committee, General Comment No. 6 of 27 July 1982, the Right to Life, http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3.

See also Human Rights Committee, General Comment No. 11 of 29 July 1983 Prohibition of Propaganda for War , http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/60dcfa23f32d3feac12563ed00491355?Opendocument.

[18] Human Rights Committee, General Comment No. 14 of 2 November 1984 Nuclear Weapons and the Right to Life. http://www.unhchr.ch/tbs/doc.nsf/0/9c882008fd898da7c12563ed004a3b08?Opendocument.

[21] Jakob Th. Möller, Alfred de Zayas, United Nations Human Rights Committee Case Law 1977-2008, N.P. Engel, Kehl/Strasbourg 2009.  Chapter 4, discussion of the jurisprudence concerning article 18 of the ICCPR.

[22] http://draftinghumanrights.berkeley.edu/home.