September 19, 2018

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Monday, August 27, 2018

Global Justice and the Rule of Law: the future of the International Liberal Order

Intervention by Steven van Hoogstraten, CEO Hague Institute,  before the Human Rights Committee of the Liberal International, at the “Europa Huis”.

Mr Chairman, ladies and gentlemen

Many thanks for the invitation to come and speak before your parliamentary committee this morning on behalf of the Hague Institute for Global Justice.

In the words of the former Mayor of the Hague, the liberal politician Jozias van Aartsen, “the Hague Institute for Global justice was established 5 years ago in response to a growing demand for policy relevant research and innovative thinking on critical issues of peace and justice. Today the Institute plays a key role in informing the work of cities, governments and international organizations by conducting research, building capacity and convening scholars and practitioners to discuss solutions to contemporary global challenges”.

Mr. chairman

Global Justice is what we call in this country a “container notion” , a notion that does cover many things for many people. In other words, it is not a one dimensional concept but it brings together many issues under the umbrella of an attractive, overriding theme. Issues of global justice are indeed ranging from the individual responsibility of military commanders to the conduct of states, from migration to mediation, from crimes to humanity to the greatest needs of humanity.

At the Hague Institute for Global Justice, we tend to use a framework which is composed of 4 different objectives or 4 dimensions

  • The first is enhancing accountability for perpetrators of international crimes.
  • The second is the promotion of the Rule of Law notably in fragile states.
  • The third is the effort to improve Global Governance.
  • The fourth is the prevention and resolution of Conflict.

Justifiably, there might be more of these axes, such as the fight against illicit trade, human trafficking or the widespread pandemic of corruption. But at this more strategic level we should not complicate matters too much, and so stick to this first set of 4 already wide ranging perspectives.

You will note that the protection of human rights is not defined as one of the 4 axes. That is because in our view, the problem of Global Justice is primarily one of the ethical and legal behavior of states, of the judiciary or official institutions. Human Rights are in this perspective an intertwining concept, one that does not come directly to the forefront. Global Justice basically seeks to improve the conditions for the population at large, and that of course means the enhancement of the position of individuals too. The Rule of Law presupposes the establishment of democratic institutions, which do their work properly and can be held to account. These institutions may or may not step on the line of human rights, which then is easily a lesser consideration in the light of the greater objective of societies which are stable and which know an internal system of checks and balances. One may criticize China for its record on Human Rights, but it knows what governance is and there is more than a hint that the Chinese governance is acceptable at the world stage.

It is no overstatement to say that the city of the Hague is well placed to work for Global Justice, as this city is working for Peace and Justice according to its coat of arms. The Hague is the home to so many judicial institutions. The International Court of Justice, principal judicial organ of the United Nations, the International Criminal Court and the International Criminal tribunal for the former Yugoslavia ICTY are the most visible examples. But there is more. What to think of the oldest institution for the settlement of disputes by arbitration, the Permanent Court of Arbitration – which has a pretty large agenda these days. Or the Special Tribunal for Lebanon, and another special tribunal for Kosovo ?

For many people, the enhanced accountability for crimes is clearly at the top of list, if we talk about Global Justice. No person should go unpunished, if he or she commits the worst conceivable attacks. Still, this is primarily a matter for national concern, as is shown by the constitution of the International Criminal Court. The ICC comes into play only if national jurisdictions are incapable or unwilling to prosecute the crimes themselves. We are all aware of the weaknesses of the ICC, namely (1) the procedures are slow, (2) there seems to be an emphasis on Africa – for whatever reason – and (3) many nations have not yet signed up to the ICC, including the most powerful ones. But if Canada, Mexico, Brazil, Japan, Argentina, South Africa and all the European nations can be part of ICC, we are justified in asking why Russia, China, India and the US are not. And if we place a historical lens before our eyes it is still early days, as the ICC has merely had its first 10 years. Still there is a lot to improve and notably the efficiency and speed of bringing justice.

The case of the prosecution launched at the request of Kenya is a horror example like no other, but it would be hard to blame only the Court for that. The killing of important witnesses is not attributable to a court of law, if you understand what I say. I think that the Prosecutor made an important announcement when she said that she had opened proceedings in Afghanistan. That will go some distance to take away the so called anti African sentiments

Incidentally, the improvement of accountability is not just a matter for International Courts to be established. If we look to Syria, it is obvious for me that a legal mechanism of international criminal law will not quickly be created to deal with the crimes of this long-lasting and bloody internal war. All the more reason to applaud the decision by the General Assembly to create a monitoring mechanism called the IIIM, or commonly the triple I M, the International, Impartial and Independent Mechanism whose primary aim it is to collect evidence and document the war crimes since 2011 in Syria. Not a prosecutorial system, but an important helping hand to support a future prosecution if it ever came to that. (Resolution nr A/71/248 dd 19 December 2016) . According to the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein, “this new mechanism is a very significant step to further accountability”.

Global governance

At The Hague Institute for Global Justice, a lot of our work is related to the architecture of global governance. This concerns of course mainly the United Nations, whose Charter and institutional setup still reflect the political situation of the Post World War II period; but also other important building blocks of global governance, including the development and promotion of new norms, the role of regional organizations as supporting pillars of the global order, and specific sectorial regimes.

Concerning this overarching architecture, I would like to point to the Commission on Global Security, Justice and Governance, which was co-chaired by former U.S. Secretary of State Madeleine Albright and former Nigerian Foreign Minister Ibrahim Gambari, and for which The Hague Institute and the Stimson Center in Washington DC served as the joint secretariat. It culminated in the Commission’s final report entitled Confronting the Crisis of Global Governance, which was launched at the Peace Palace here in The Hague in June 2015. Some commentators may have found that the title was “too gloomy”, but the system is often seen as blocked by national interests. It should be borne in mind that the recommendations are intended for the 75th birthday of the United nations in 2020. To attract some attention, one needs a spicy title and pickled proposals.

This World Commission introduced the notion of “Just Security”, the intersection of justice and security which is critical to understanding – and tackling – today’s global governance threats and challenges. Justice is essential to safeguarding human security. A just society is an illusions without security. The goal of Just Security is to forge a global system of accountable, fair, and effective governance and sustainable peace. This vision is rooted in long standing international commitments to human rights, international law, and the critical role of flexible and evolving multilateral institutions, states and NGO’s in global governance. Among several other recommendations , this World Commission aimed to create the next generation for the UN conflict mediation and peace operations capacity, to innovate climate governance, to establish a new G 20 + for global cooperation in order to avert financial, cross border shocks and to work on the 17 UN Sustainable Development Goals, and to develop a global network of cybercrime centers next to increasing internet access in the Global South. The Commission also saw great merit in expanding the Security Council’s membership while restraining the use of the veto.

Finally and importantly for the Hague, the World Commission wishes to strengthen and more fully use the International Court of Justice, by expanding the number of acceptances of this Curt’s jurisdiction and use its advisory opinions in innovative ways. You may know that only 73out of 195 countries in the world accept the jurisdiction of the ICJ as a matter of national policy. The Dutch are among those who do, like most European nations. But not the French, who backed out after the Nuclear Test Case. And not the USA, nor Russia, or China and so many others.

Last but certainly not least, we understand that global justice cannot be only promoted by norms and strategies alone, but also through well-functioning institutions and implementation on the ground. A good example of this is the Global Governance Reform Initiative (GGRI). The GGRI is a collaboration between The Hague Institute, The Netherlands Ministry of Foreign Affairs, and the Observer Research Foundation, India’s leading think tank. It seeks to analyze the deficiencies in salient regimes and proposes evidence-based policies for improving governance in select domains. Moreover, it looks at emerging patterns and how innovations in one sector can foster solutions in others as well.

As a multi-year, multi-phase project, it focused first on cyber governance, with its findings feeding directly into the India Conference on Cyber Security and Cyber Governance in 2014 and the Global Conference on Cyber Space held in The Hague in April 2015. Subsequently, the project’s attention turned to oceans governance, in particular concerning blue growth and sustainable development. The findings from this phase were presented at the Oceans Dialogue 2017 in Kerala, India, a conference organized by the ORF in partnership with the Dutch government. The project’s current and final phase homes in on its politically most contentious topic: Migration governance, with a particular emphasis on using regional cooperation as a way to manage the pressures created by migration and refugee flows, not just in Europe but also in other world regions.

Through its expert meeting and online consultations, the project is designed in such a way that it absorbs input from all relevant stakeholder groups, including business and civil society, as well as perspectives from the Global North and South, in particular the BRICS countries. In a similar vein, the deliverables that GGRI produces are designed to speak not just to academic but a range of different audiences. For instance, while each phase produces a special issue of articles in the leading, interdisciplinary academic journal Global Policy, a compact policy brief provides practitioners with the main take-away and reform proposals for each phase, while op-eds and blog posts address the wider, interested public.

Mr. Chairman

You have asked me to look into the future of the international justice system. May I say that such broad question is easier asked than answered. What I can say from my experience that the international justice system is now rather well developed, but still ailing from one serious illness. That illness is that so many countries have not accepted as yet the jurisdiction of either the International Court of justice or the Rome statute of the ICC, or the arbitration rules of the PCA. I refer to the arbitration case under the UN Convention for the law of the Sea about the South Chines Sea, between the Philippines and China. China did not accept this arbitration and simply refused to come to the proceedings. In the same vein I note that still so many countries are outside the mandate of the International Criminal Court. One can see the importance of the work of the ICTY, an institution which has passed judgement on the main “names “ of the war in Yugoslavia in roughly 20 years. The recent decision of the ICTY on general Mladic after 500 court days is a strong example. But the process of international justice is painstakingly slow, and especially the International Criminal Court has not yet a record to show with pride.

My view of the future of the international justice system is that the call for justice will not diminish, and that the core principle of ‘no safe havens for crimes committed” will stand strong. This by itself will allow for new forms of justice systems to come into place, like the investigation mechanism for Syria. But we all know what is needed for that, and notably that is a form of consensus in the Security Council. Sometimes the window of the Security Council will open briefly, but most of the times this window stays shut. Locked by some veto of one of the powers. That is a flaw in the UN system, where a global reform is urgently called for . Like the report on global governance mentioned, why not abolish the veto rule for situations where mass violations of human rights are at the heart of the debate. That would be a small but highly significant step forward.

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