Building Peace, Security and Justice through the Rule of Law and Global Governance

Building Peace, Security and Justice through the Rule of Law and Global Governance

By Keith Best

I wish to take an overview based on my observation of more than 35 years at the helm of the World Federalist Movement/Institute for Global Policy or WFM/IGP.

Recent history

One hundred years ago – a mere fleeting moment in geo-political history – the nascent League of Nations was just one year old.  After the “war to end all wars” its Covenant included preventing wars through collectivesecurity and disarmament andsettlinginternationaldisputes through negotiation and arbitration.  Of course, no nuclear weapons existed although the trenches had seen the devastating effect of chemical weapons so poignantly described in Wilfred Owen’s poems. It took the second global conflict in a generation to achieve the first international criminal tribunals at Nuremberg and Tokyo. This first holding to account individuals, rather than states, for what had occurred introduced the concepts of genocide and crimes against humanity thanks to Raphael Lemkin and Hersh Lauterpacht (compellingly told by Philippe Sands QC in his bookEast West Street). The conflict also saw in1949 the four Geneva Conventionsprotecting wounded and sick soldiers on land, sick and shipwrecked military personnel at sea during war, treatment of prisoners of war and protection of civilians, including those in occupied territory. Admittedly, the Geneva Conventions drew on earlier conventions onwards from 1864 (for which we have to thank Henri Dunant, founder of the Red Cross, after seeing the horror of the battlefield of Solferino) but their consolidation was a major achievement.

The Cold War

Many of us have lived much of our lives in the Cold War under the threat of Mutually Assured Destruction – that an aggressive move by one superpower with instant retaliation would ensure total annihilation of humanity. It now seems farcical but it was real. During that time I recall being stationed in 3rd Armoured Division Headquarters facing the massed armies of the Soviet Shock Army, several divisions deep, which, in the event of attack, we needed to entice into what was chillingly described as a “killing zone” so that we could fire a tactical nuclear weapon on them. This “shoot and scoot” policy was so called because the delivery system, the 8-inch howitzer, had a range of only 16,000 yards and had to be limbered up ready to move as it fired its lethal shell – just in case the wind changed and the nuclear fall-out engulfed friendly forces!  We may be faintly amused at the casual and callous naivety but, today, the concept of star-wars and hypersonic delivery vehicles dropping warheads anywhere in the world (allegedly now a Chinese capacity) is little different. What has changed is that the cost of such weapons is now prohibitive for any other than the most wealthy nations – and at great cost to expenditure on social welfare, infrastructure and those items the public crave.

Cost of war

Yet while precision-guided warfare is proving for most to be a too-expensive luxury exercised only by states with deep pockets, we have to live with the cheap lethality of the suicide bomb, the terrorist outrage and countries with sophisticated armies and equipment being defeated by determined, sometimes, fanatic irregulars armed with the Kalashnikov and a bellicose ideology. The last century will be remembered not only for the Holocaust and two devastating world wars but also that, in its latter half, the weapon of actual mass destruction was the machete. Small-arms remain the major causes of death in conflict.

A chance for complete disarmament

Perhaps the closest we ever came to complete security through disarmament were the McCloy-Zorin Accords of 1961 which sought to establish a foundation or “roadmap” for all future negotiations and international treaties with regard to nuclear and general and complete disarmament under effective international control. It went further and sought to abolish war as a means of settling disputes and was to be “accompanied by the establishment of reliable procedures for the peaceful settlement of disputes.” It was unanimously passed by the UN General Assembly. It was so far-reaching that it provided for the dismantling of military establishments, cessation of the productionofarmamentsandeliminationofallstockpilesof nuclearchemicalbacteriological and other weapons of mass destructions as well as the  discontinuance of military expenditures. In the UK 1963 Harold Wilson, soon to become Prime Minister, speaking for the Labour Party in an address to the Fabian Society, said that he would like to “establish a separate Ministry of Disarmament” – an idea echoed more recently by Vijay Mehta in one of his books. We now have a Shadow Minister for Peace and Disarmament.

Perhaps the importance of a reflection on these events is to take heart that they are possible and we have seen significant advances. That is why only recently WFM/IGP has launched a new initiative to reinvigorate the former idea of Three Plus Three, engaging China, Russia and the USA with Japan and the two Koreas to create a North East Asia Nuclear Weapons Free Zone.  Despite the Non Proliferation Treaty we see an escalation in the threat of nuclear weapons with the danger that non-state actors may possess them. The initiative is timely.

A new international institution

WFM/IGP was in the forefront of working with the then Prime Minister of Trinidad & Tobago A. N. R. Robinson in re-energising the idea of an international criminal court – first mooted during the Paris Peace Conference in 1919 following the First World War.  It came to fruition through a few but determined states and the Coalition for the ICC of some 2,500 civil society organisations worldwide keeping them up to the mark; the Rome Statute was signed in 1998.  Perhaps we are too close to it but when the history books are written in a hundred years’ time I believe that this will go down as a landmark in the advance of the international rule of law. For the first time in history a permanent institution was created that held not just states but individuals to account for what are accepted as the most horrendous crimes.

Inadequacy of UNSC

This leads me to the apparent inadequacy of the mechanisms at our one international body designed to keep the peace, the United Nations and, in particular, the Security Council. Perhaps the most egregious example of this failure of leadership is in the refusal of both China and Russia to refer the case of the Rohingya to the International Criminal Court (although, of course, the ICC has initiated an investigation on the basis that forced migration occurred on the soil of Bangladesh, a signatory to the Rome Statute). China and Russia time and again have maintained that it is a bilateral issue between Myanmar and Bangladesh and should not be discussed at international forums. They objected to the Chairperson of the United Nations Independent International Fact-Finding Mission on Myanmar addressing the Council as to its finding on the refugee crisis. They stated that the Mission’s mandate was not to brief the Security Council. It was also asserted that, as the UNSC’s duty was limited to protect international peace and security, it should not get involved in country-specific human rights violations. This is a highly selective and minimalist view of what might constitute a threat to world peace under Chapter VII of the Charter, yet Article 39 states clearly “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken.” Fortunately, the General Assembly did not feel itself do restricted but the inactivity at the highest level has led to some interesting collateral acts.

New initiatives

The Gambia, with the support of the 57 nations of the Organization for Islamic Cooperation, filed a lawsuit against Myanmar in the International Court of Justice (World Court) which has declined to rule on whether it is genocide but stated that Myanmar must take measures on an emergency basis to protect Rohingya Muslims and to retain evidence of possible genocide.

In Argentina a case was launched under the principle of universal jurisdiction but a court of first instance rejected the case in December, arguing that it would duplicate the investigation launched by the International Criminal Court (ICC). In June 2020, however, the Federal Appeals Court in Buenos Aires overturned the previous decision not to pursue a case against military and civilian leaders of Burma for their role in atrocities committed against the Rohingya people. That decision means that the Argentinian court has to approach officially the ICC for more information about its ongoing investigation before any final decision on whether or not to proceed with the case in Argentina. An investigation under the principle of universal jurisdiction, however, would be able to lookinto atrocity crimes committed against the Rohingya inside Burma. This has wide implications about the ability of countries to claim they have jurisdiction over international crimes and whether the complementary principle of the ICC allows a State to investigate and prosecute under universal jurisdiction similar allegations that are being investigation by the ICC.

In a way, the stultification of the UNSC may have opened a Pandora’s Box and shown other ways of dealing with such issues.

More rule of law

I have concentrated on the rule of law, especially international criminal law, being an important vehicle for building peace, security and justice. Yet we should go further. Although many international treaties, especially involving trade, have a dispute mechanism there are many that have no judicial oversight or ways of compelling compliance. I cite the Refugee Convention 1951 and its 1967 Protocol which require states to determine the status of a refugee, not to discriminate against them by virtue of their entry into a country of safe haven and not to return a refugee to face harm – non-refoulement. Yet as we have seen in the repeated failure of global institutions and the EU to deal effectively with refugee migration there is no tribunal that can find states derelict in these responsibilities.

Global democratic deficit

Let me conclude by referring to global governance in which the lacuna is clearly in many cases a democratic deficit. I mentioned international treaties and many of these have associated Parliamentary assemblies of democratically elected representatives of the member states. Some are more effective than others in scrutinising the workings of such agreements. The Council of Europe’s assembly PACE can play an effective role, condemning repression in Belarus, action of a clean and safe environment and combating racism to quote recent themes. There are regional assemblies, perhaps very prominently the directly elected European Parliament which evolved from a nominated assembly of representatives of states parties to the European Coal & Steel Community to a directly elected regional Parliament with real powers of co-decision-making. Its history since its beginning, only a generation ago, sets out a road map as to how other assemblies might evolve.

So, if all these assemblies in their own way bring the representative voice of the people to the table then one asks where is thatvoice at the G7 and G20, informal but important groupings of states that make decisions affecting us all? It is true that Bond was appointed as lead of the C7 to coordinate dialogue between UK government and civil society organisations at the recent 2021 G7 Summit at Carbis Bay and Civil 20 (C20) is one of the official Engagement Groups of the G20 which provides a platform of Civil Society Organizations around the world to bring forth the political dialogue with the G20. Maybe that is a beginning but it is far short of direct democratic involvement.

Perhaps even more importantly one asks where is the people’s voice at the UN level alongside the Security Council and the General Assembly? I do not mean the IPU which has interesting discussions as I know from my time attending them as a British MP but where are international parliamentarians as an integral part of the UN system? A principal cause of the World Federalist Movement/Institute for Global Policy which I have had the privilege to chair for many years is the creation of a UN Parliamentary Assembly, with only consultative and not  legislative powers at first (which may come later through evolution) but with the power to scrutinise the working of the UN and its agencies, to hold them to account and to make recommendations just as all-party select committees do scrutinising their governments in many countries based on the Westminster model.

For me, these are the essential elements and goals for a sustainable system of universal peace, security and justice.