Peace as a Human Right
It is difficult, if not impossible to speak of peace as a human right barely a month after the terrorist attacks on New York City and Washington D. C., and in the face of the threat to go to war in retaliation by the U. S. government. Yet it is precisely in such a time of crisis that detachment and reflection would be needed to point the way, to save mankind from the abyss of war. The situation, dangerous as it may be, need not be as hopeless as many peoples around the world assume.
In contrast to the perpetual quest for peace based on religious belief or moral claim, peace as a human right is something new, both in idea and in practice. It is still facing challenges. Yet increasingly the norm is secure, and the mechanism for implementation established. Of course, mechanism for implementation is not equivalent to peace. Further more, genuine peace cannot stand by itself; it is intertwined with other human rights, such as development and a clean environment. Nevertheless, the achievements would seem irreversible. And the idea of a culture of peace is clearly emerging and taking root.
I.
Peace as a human right is usually, and with good reasons, regarded as a third generation right, or solidarity right. Karel Vasak, in his inaugural lecture to the Tenth Study Session of the International Institute of Human Rights in 1979, was the first to propose the idea of a third generation of human rights. As he saw it, the third generation rights “are new in the aspiration they express, are new from the point of view of human rights in that they seek to infuse the human dimension into areas where it has all too often been missing, having left to the State, or the States…They are new in that they may both be invoked against the State and demanded of it, but above all(and herein lies their essential characteristic) they can be realized only through the concerted efforts of all actors on the social scene: the individual, the State, public and private bodies and the international community.”[1] Further more, he identified the third generation rights as solidarity rights, as distinguished from the rights of the first and second generations . Indeed, the three generations of rights correspond closely to each of the three parts of the motto of the French revolution: liberte, egalite, fraternite.[2]
Since then there have been much discussion of the third generation rights and solidarity rights.[3] It is not necessary to resolve the controversy here whether they are synthetic or new rights. Suffice it to say that peace as a human right, compared with other third generation rights, such as development and a clean environment, could be easily traced to the many efforts of the international community in the quest for peace since the First World War, if not earlier.
By the end of the First World War, Europe was exhausted and the peoples all over the world craved for peace. In the creation of the League of Nations, “Woodrow Wilson dominated the ideological scene. He appeared as the prophet of a new era, making a dramatic appeal to people and governments; he symbolized the idea that the anarchy of power politics should be ended by the injection into international relations of the highest values evolved by the political man”[4] He was, it could be argued, modeling his scheme on the proposal of Immanuel Kant more than a hundred year earlier in the Perpetual Peace that world peace could only be established by a compact between democratic nations.[5] As it turns out, the concerns for national interests of the powers intervened and Wilson’s dream was not realized. Nevertheless, it was a serious effort for the maintenance of peace and profoundly influenced the establishment of the United Nations a generation later. Similarly, the Kellogg-Brian Pact, which had been the object of ridicule of the political realists for decades, would seem to be a step in the right direction given the contemporary perspective in international law.
With the establishment of the United Nations, the consensus of the world community was reached, and peace was declared one of the overarching goals for that Organization. The U. N. Charter could be taken as providing the foundation for the right to peace. It was cited in the final report of the UNESCO Expert Meeting on Human Rights, Human Needs and the Establishment of a New International Economic Order, held in June 1978. To quote:
By virtue of the proclamation contained in the United Nations Charter to the effect that human rights and freedoms shall be respected and the use of force prohibited, one of the basic rights of each individual is embodied in international law, namely, the right to peace.[6]
The Charter was also cited by the Secretary General in his report on the international dimension of the right to development as the primary basis of the right to peace. It is clearly recognized that “existing economic and other disparities are inconsistent with the maintenance of world peace and stability.”[7] In fact, in late 1940s, quite a few proposals were made to incorporate some variations on the theme of the right to peace into a declaration on the Rights and Duties of States. For example, a draft Declaration submitted to the General Assembly by Ecuador in 1947 included an article as follows:
The maintenance of peace, based on justice and on law, is a fundamental rule of conduct in relations between States and these have the right to peaceful and secure developments.[8]
Probably the most expressive recognition of the right to peace can be found in the declaration on the preparation of Societies for Life in Peace (Res.33/73) by the General Assembly in 1978. In paragraph 1 of Part (I) of the Declaration, it is stated that:
Every nation and every human being, regardless of race, conscience, language or sex, has the inherent right to life in peace. Respect for that right, as well as for other human rights, is in the common interest of all mankind and an indispensable condition of advancement of all nations, large and small, in all fields.[9]
This trend toward affirming the right to peace was given a powerful impetus in the 1990s. Ironically, the systematic war crimes in former Yugoslavia and in the civil war in Rwanda compelled the world community to act resolutely. “Against great odds, a modern day Nuremberg Tribunal was established in the Hague to prosecute those responsible for atrocities in the former Yugoslavia. A year later, in the small country of Rwanda, members of the ruling Hutu tribe massacred 800,000 members of the Tutsi tribe. In the aftermath of the bloodshed, Rwanda’s Prime Minister-designate (a Tutsi) pressed the Security Council: “Is it because we are Africans that a similar court has not been set up for the Rwanda’s genocide?” The Council responded by establishing a second international war crimes tribunal in Arusha, Tanzania.”[10]
To remedy the weaknesses of the ad hoc international criminal tribunals, the creation of a permanent international criminal court was again placed on the agenda. Indeed, since its inception, the United Nations has recognized the need to establish an international criminal court so that crimes such as genocide could be prosecuted. It adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 and invited the International Law Commission “to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide.”[11] Nevertheless, the efforts faltered, and the idea of an international criminal court was not revived until the 1990s. In 1993, the General Assembly requested that the elaboration of a draft statute for an international court should be taken as a matter of priority. The International Law Commission completed its draft the next year. An Ad Hoc Committee to review the major substantive and administrative issues arising out of the Commission’s draft statute was followed by a Preparatory Committee in which negotiations began seriously to shape a Statute for the International Criminal Court. The efforts of many nations, NGOs and individuals finally culminated in the adoption of the Rome Statute in 1998.
The negotiation process to adopt the Rome Statute is clearly far too complicated to be studied here. Suffice it to point out that issues of jurisdiction and of crimes to be included in the Statute proved to be most controversial and difficult to agree: what kinds of jurisdiction should the court exercise over what kinds of crimes? In the end the final text provides that “the court may exercise jurisdiction with respect to the crimes listed in the statute, if it has the consent of the state of the territory where the crime was committed or the consent of the state of nationality of the accused (Article 12). But this requirement does not apply if a situation is referred to the court by the Security Council; the court will have jurisdiction regarding the crimes concerned even if committed in non-state parties by nationals of non-state parties and in the absence of consent by the territorial state or the state of nationality of the accused.”[12] As for the crimes to fall within the court’s jurisdiction, the negotiations were equally difficult. From the very beginning, there was virtually unanimous agreement on including genocide. Other crimes such as war crimes, crime against humanity and aggression, all had supporters as well as opponents. As a result, the draft list of crimes read as follows: The crime against genocide; the crime of aggression; war crimes; crimes against humanity; and other crimes. The first four crimes were known as the core crimes. At Rome, almost all states supported inclusion in the statute of genocide, war crime and crimes against humanity. The definition of the crimes against humanity, it need be noted, was broader than that used in the Statutes of the contemporary ad hoc international criminal Tribunals. It specifically includes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other forms of sexual violence of comparable gravity. A compromise was reached on war crimes: “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. Similarly, the crime of aggression is incorporated in the Statute yet the court may exercise jurisdiction in that regard only after the crime has been defined and the conditions for such exercise have been agreed upon. The crimes of terrorism and drug trafficking, which had received much support in earlier stages, no agreement was possible. A resolution was passed to the effect that they should be studied by the Review Conference to arrive at an acceptable definition and included within the jurisdiction of the court.[13]All in all, a laudable outcome. Compromises had been made, obviously, especially to meet the opposition of the U. S. But the U. S. was not appeased, and chose not to sign the Statute.[14]
The contribution to peace as a human right of the Rome Statute of an International Criminal Court should not be difficult to discern. To that degree that many serious crimes were defined and prosecuted by the international community, the right to live in peace is further affirmed. As Benjamin B. Fernencz, a former Nuremberg prosecutor eloquently testifies: There can be no peace without justice; no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstances.”[15] Or as Kofi Annan, the United Nations Secretary-General pledged: “In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you… to do yours in our struggle to insure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.”[16]
This claim of peace as a human right, fortuitously, was given a great boost by the persecution and detention of General Augusto Pinochet for crimes against humanity during his seventeen- year rule as the dictator of Chile. Briefly, on October 16, 1998, a few months after the Rome conference ended, the London police arrested the General when he was receiving medical treatment in U. K. The police was acting on a Spanish warrant demanding his extradition. As can be expected, this move galvanized the world opinion in the firm belief that the Rome Treaty is a reality after all. As the Amnesty International put it:
The fact that Augusto Pinochet was arrested while traveling abroad—almost unthinkable just 16 months ago—has sent a powerful message: no one is above international law, even when national laws protect you from persecution.
The UK courts have confirmed that people accused of crimes such as torture can be prosecuted anywhere in the world.
The fervent hope that Pinochet would be made to pay for his crimes, however, did not materialize. Far too many political and legal maneuvers, both in the UK and in Chile, converged to defeat it. The General was not extradited to Spain; instead, on the ground that he was in poor health, he was returned to Chile in March 2000. .[17]
Plainly,the right to peace as a legal norm has been affirmed. What then are its contents? Plausibly the right to peace can be defined as “the right of every individual to contribute to efforts for peace, including refusal to participate in the military effort, and collective right of every state to benefit from the full respect by other states of the principles of no use of force, of non-aggression, of peaceful settlement for disputes, of the Geneva Conventions and Additional Protocols and similar standards, as well as from the implementations of policies aimed at general and complete disarmament under effective international control.”[18] The rights protected in the Rome Treaty of 1998, no doubt, have enriched enormously the content of peace as a human right.
Briefly categorized, the content of the right to peace would seem to have included in the minimum the followings. They can roughly divided into individual and collective rights, though it need be kept in mind that the two are closely related.
First, the right of the individual to refuse to participate in the military effort is affirmed. At present, no blanket exemption from the military service has been allowed by any state, perhaps with the exception of Costa Rica, which does not maintain a standing army. The privilege enjoyed by the conscientious objectors can be taken as a compromise to accommodate individual needs and the obligations to the State. In many cases, the conscientious objectors could choose to do social services.[19] In time of wars and conflicts, the individuals are, of course, protected, and any one committing serious crimes, as the Rome Statute made clear, would be punished.
Secondly, on a collective level, the threat or use of force is prohibited in international relations, and disputes and conflicts must be settled by peaceful means. This precisely was agreed to when the Charter of the U. N. was adopted in 1945. It doesn’t say that the use of military force won’t be allowed under all circumstances; nevertheless, in accordance with the Charter, only the Security Council has the right and power to use military force in maintaining peace, possibly with the exception of self-defense.
Thirdly, to achieve the goals of no use of force and non-aggression, disarmament should be vigorously pursued. Much has been achieved in arms control; general and complete disarmament, nevertheless, has until now still eluded the world community. More disturbing is the fact that many not so rich or poor nations have for different reasons spent enormous amount of money on the military. And an increasingly dangerous trend is the development and possible use of chemical and biological weapons.
II
With the right to peace affirmed as a legal norm and its content briefly studied, it is imperative to inquire if it is effectively enforced. To put it differently, are there any institutes and mechanism available and effective in insuring the enjoyment of this right?
At the first glance it would seem the better part of wisdom to concede that “its precise content has not reached the degree of certainty which is required for its promotion as a norm capable of consistently determining or guiding the nature and direction of the activities of either the international community as a whole or of its individual Member States,”[20] nor that the institutes and mechanism established for enforcement have worked effectively. A brief survey of the wars and conflicts confronting the world community would have convinced an objective observer of the dismal reality. Yet on deeper reflection, it could be argued that if the situation had been far from perfect, it has been steadily improved. For the past half a century, many institutes and mechanisms have been created and used to promote the right to peace. To begin with, the Security Council of the United Nations was given the specific task of maintaining world peace. Obviously, honest men could differ honestly in their assessments of the success of the Security Council. Indeed during the era of the cold war, the Council was for all practical purposes paralyzed. Collective security was more an empty phrase than a guiding principle. Nevertheless, it should be noted that twice the Council had lived up to its promise, the first time in taking collective action in Korea in early fifties, and the second time in waging war in the Persian Gulf in the very end of the cold war period. Both times the United States took the lead; yet it should not detract from the achievement of the Council. Now the Council is gaining in power and influence as testified by the creation of the Yugoslavia and Rwanda Tribunals as well as the establishment of the international criminal court and in fighting against terrorism.