Panel 2
Lauri Mälksoo: Hello also on my part. The purpose of this session is to demonstrate that human rights are a part of international law, among others. That they are something which has a place within the general system of international law, and this general international law also naturally deals with regulating other important questions, including the question of when does war begin?
I think that in the interests of our panellists I will now switch to English. I was just saying that part of the idea of this panel is to see human rights as part of general international law as well. In this panel we have tried to create a kind of collage which altogether will create a picture of what has happened with human rights and what has happened with the general edifice of international law over the last year, and in particular as a result of the recent events in Ukraine.
We have four distinguished panellists: we will start with an academic, Professor Christopher McCrudden, who is Professor of Human Rights and Equality Law at Queen’s University, Belfast. During most of his career he was at Oxford University. Professor McCrudden, I will ask a simple question: in my interpretation you are globally the foremost expert regarding the question of what is meant by human dignity in international human rights and in international legal theory, so my question to you is simple: what is meant by it?
The next speaker will be the NATO Secretary-General’s special representative for women, peace and security, Marriët Schuurmann from the Netherlands. Marriët will also give us an interpretation what this recent conflict in Ukraine is about, and how is it seen from NATO’s perspective, what is at stake.
Our third speaker is Mary O’Hagen, who is Resident Senior Director of NDI in Ukraine. The question to you is: How is this conflict seen in Ukrainian society currently; what are the dynamics of this conflict and what impact will it have on our further thinking?
Finally, when there is law, whether international law or international human rights law, there has to be some sort of sanction, some sort of consequences. If one violates law but nothing ever happens, then perhaps it is not even law. We have the foremost Estonian expert on international criminal law, Andres Parmas, who is a judge of the criminal chamber of the Tallinn Circuit Court and is also closely connected to the Faculty of Law at the University of Tartu. I would ask simply this question: what role can international criminal law play in dealing with such conflicts as the one in Ukraine, but also other important conflicts that we have in 2014.
The panel is entitled ‘The Transformation of International Law as a Consequence of Hybrid Wars and Disguised Aggression’. Of course one possible answer to this formulation would be that law can always be violated, but it does not mean that the violation of law will immediately transform or change the law, as this would be a kind of double victory for the aggressor: first you get to conquer territory and then you get the world to the point that everyone says now we don’t have international law anymore.
The historical perspective of international law would be that there have time and again been challenges to it, and this law has been violated, but it is not so simple that violations of law will immediately lead to the transformation of international law. Of course what is to some extent new are the particular dynamics or circumstances of the Ukraine conflict. For example, that Russia is even saying, “we are not even there”. Russia denied up to the last minute that Russian forces were in Crimea and then the annexation took place.
Notions like “hybrid warfare” are new notions in some ways, and one can only think of this big step that the world has made historically with the regular armies clashing with one another and even nations declaring war on each other. Yesterday, when we were preparing this panel, we were talking about Martens, and Martens had an argument in the late 19th century with his Russian colleagues about whether in international law one still needs to declare war or not. And interestingly, some of the questions are still the same in conflicts like the one in Ukraine.
So my own stake as a starting point would be to repeat the same idea that I already said that we would make things too easy for aggressors today and in the future if, as a result of aggression, we would also come to the conclusion that now international law is something extremely different compared to what it used to be. So we should be careful when doing that, when coming to this conclusion. However, of course, things also change. If we just get stuck with what was for example in 1945 when the United Nations Charter was adopted, then perhaps international law would not be capable of confronting the dynamics of the real world, also the capabilities that newer weapons will give to nations and so on.
I think I will stop here and now give the floor to Christopher McCrudden. What is human dignity and how does this concept fit in human rights law and international law generally?
Christopher McCrudden: Thank you. It’s an absolute pleasure to be in Estonia, it is my first time as well. My wife and I are having a wonderful time and we very much hope that we’ll be able to revisit your really wonderful country. It is also particularly a pleasure because coming from Ireland, there are so many resonances between the Irish approach to things and the Estonian, that I’ve felt right at home. Thank you also to Lauri for chairing us. What I am going to do is to answer his deceptively simple question – what is human dignity? But I want to start by initially just setting out what I plan to do. I am going do five things. The first is to try to give a very quick overview of international human rights law and in particular of the place of human dignity in that. Then, related to conflict situations, come to the issue of conflicting approaches to human dignity and issues about its implementation.
Let me start with the most simple idea of international law. It begins to some extent with states. I hope without being unduly enthusiastic, to say that I appreciated your President’s speech this morning immensely. Essentially what I’ll be doing is dropping a few footnotes to his presentation.
Let’s start with some states. States essentially agree through treaties and custom to be bound by certain aspects of international law. I come to the issue of custom because the emphasis is often simply on treaties, and we need to complicate the situation a little. Custom meaning in part how states behave, as well as what they formally agree to in treaties. In the international law context we have a variety of different values that are incorporated, ranging from the sovereign equality of states, through security, sustainability, justice, peace, self-determination – all the kinds of values that you would expect to see incorporated in international law. But within those, and as well as those values, there is the value of dignity. And Lauri’s question essentially is: what does that mean and what is its place?
The problem we then come to is that there are different parts of international law. The one we are particularly concerned with is human rights law. But it’s embedded in a whole range of other approaches and elements of international law. It doesn’t stand alone. Within human rights law we also have a considerable variety of different ways of implementing it. So we have the international, the High Commissioner for Human Rights and the Human Rights Council being among the two we could point to; within the regional context we have the European Convention on Human Rights and the OSCE; and then we have the national context.
What are the characteristics therefore of an international law system? It’s somewhat problematic. There is no clear hierarchy of values apparent within the system, there are lots of them. There is no overall mechanism of coordination. It ultimately is based on the consent of states. International law is only one mechanism for the promotion of those values.
So what are the challenges? Again they are quite considerable and they emerge out of some of those features that I have just mentioned. So for example, some may say, and we’ve seen this for example in the context of ISIS, a rejection essentially of the system of international law as a whole. And we can see rejections of international law in the context of say, the notion that religion trumps everything. Or on the basis that Realpolitik governs and that international law is simply a burden. Or on the basis of real scepticism. So some will say international law is so ineffective that we needn’t bother with it. So that’s one possible challenge.
The second possible challenge is, particularly for those who are concerned with dignity or human rights, a re-ordering of the priority of values within international law. So for example we saw a range of different values that are embedded in the international law system, and some therefore will say that now we should be emphasising sovereign equality of states rather than dignity. So there is a question about the priority of values in international law.
Third, there is the possibility, and to some extent we see now the reality, of a fragmentation of values between different parts of the system. So given the multiplicity of different systems and elements within international law – trade law, international law of the sea, human rights law – we see that different institutions get to interpret each part of the system, and they may do it differently. So when the WTO interprets human rights concepts, it may not necessarily be the same result that you get when a human rights court interprets them. So we see then fragmentation within the system, with different institutions interpreting human rights differently. So for example the Human Rights Committee at the UN may interpret the notion of freedom of religion somewhat differently than the European Court of Human Rights does.
So what then is the place of human dignity? I come to the President’s speech and my answer briefly to Lauri’s question is essentially that dignity means that each human person – I say person, so it’s an individualised idea – simply by virtue of being a human person, possesses an intrinsic worth that should be respected. If we can agree to that, we can agree to quite a lot. I don’t want to be thought to be saying that this is not an important, agreed upon idea. I think it is. So we want to distinguish that notion of dignity from dignity in some other uses. So for example in the human rights context we are talking about human dignity. In other contexts, older contexts, we sometimes use dignity meaning an insult or an honour or respect for office. That’s not the role it plays in international human rights law, it’s respect for the person. It is also different from dignity in other contexts, like the dignity of states, or the dignity of nations or the dignity of ambassadors or the dignity of the nation. That’s a different idea. We come to the simple of idea of each human person by virtue of their humanity has an intrinsic worth. So human dignity in that sense, I’m suggesting, is the general justifying aim of the human rights system. And we have various examples in various contexts where that is reiterated time after time. One example is the European Court of Human Rights, but there are many others.
So is that relevant in concrete cases? You bet! It is absolutely relevant in particular contexts. So it not only is a general justifying aim for the system as a whole, it also underpins particular human rights. And for example in the European Convention on Human Rights context it underpins in particular the prohibition of torture, the prohibition of slavery, the right to family and private life and the right to non-discrimination.
There is an issue, however, in the context of this being an individualised concept. So the question for example is, does it underpin notions of self-determination of peoples? And that becomes more complicated. So for example we will be hearing this afternoon about the rights of indigenous peoples, and dignity is used in that context, but it’s a somewhat interesting and somewhat potentially problematic notion because it seems to refer to the rights of groups rather than to the rights of individuals. So we may come back to that.
Is it relevant in conflict situations? Yes. Northern Ireland, Chechnya, the Kurds, Turkey, the war on terror, international humanitarian law. In all of these contexts we see human dignity being regarded as a particularly important element where there is a conflict situation arising. So does it go out the window when we have a conflict? No, it rather comes back to be even more important, to be even more central to the notion of the control of the state and the control of others in those kind of contexts.
Are there differences, cultural differences, between states on the notion of dignity? We come back again to one of the themes the President outlined in his speech. So for example there is a recent Russian initiative in the Human Rights Council at the UN where the Human Rights Council has now passed a resolution entitled “Promoting Human Rights and Fundamental Freedoms for a Better Understanding of Traditional Values of Humankind”. Which essentially attempts to have the notion of traditional values accepted into human rights law. But it interestingly does that in the context of a re-interpretation of some of these fundamental principles like dignity. So essentially we have at the moment a fundamental debate, a fundamental conflict we might say over exactly those fundamental concepts like dignity.
Implementation. Implementation is of all of the elements in international human rights law probably the weakest. Let’s take two examples to lead into the rest of the discussion. Ukraine – questions about access to the aircraft crash site. The Ukrainian foreign minister frames it in terms of human dignity. Syria – the use of chemical weapons against civilians. Again, President Obama formulates it in terms of the right to human dignity. He says that this attack, the use of chemical weapons, is an assault on human dignity. So what we have is a core notion which is under debate as to its meaning but not as to its centrality in human rights law. What we have is a problematic element in terms of its implementation in these contexts.
I will come back, finally, to Nancy Soderberg, whom some of you in this room may well know, who is an important American in the foreign policy context. What she says is that the tragedy of Syria – and we could go on in other contexts as well – is that the concept of human dignity is central but its implementation indeed is a consistent problem. And she ends by saying that the people of Syria are paying the price for this inaction. We can say that in many other contexts as well. Thank you for listening, I look forward to a lively discussion.
Marriët Schuurman: First maybe a word of caution: I’m not an international law expert. I’m a simple practitioner and my job is to try to translate principles into practice.
But reflecting on the central question of this panel, on these new security challenges that we just discussed – and do they transform international law. When international law is breached in this case, does it change into national law or does it first and foremost challenge us – our response, our solidarity, our resilience, our consistency?
I would answer from a NATO perspective, from practice, that for now it is the latter. Our test is our resolve and consistency. These challenges force us to unite and reinforce our basis, our foundation. To re-think not only on how best to defend our allies and our alliance, but also on how best to defend the fundamental principles the alliance is meant to safeguard, for which it was created. So we are back to basics. And my point today is that the best defence of our founding principles is to live them. It’s my job within NATO to prove our fundamental principles relevant for our everyday work. The founding principle that all human beings are born free and equal in dignity and rights. More specifically, it’s my job to prove the relevance of the United Nations Security Council Resolution 1325 which builds on the conviction that protecting and enforcing equal rights and opportunities for all, both men and women, creates more stable, peaceful, prosperous societies, more resilient communities.
It’s my job to assist NATO in translating this conviction into practice and to demonstrate that it makes a difference. That it makes a difference when we understand how insecurity and conflict affects the social cohesion in conflict affected areas. When we understand how men and women are often differently affected by insecurity and have different security demands. When we understand how our actions impact on these relations and these different needs. It makes a difference when our troops are trained and equipped to better respond to sexual violence in conflict, to signal, report and collect compelling evidence of rape being used as an act of domination to terrorise, to de-humanise and sometimes even as a tool for genocide. So that we break the silence, we stop impunity. We empower survivors to regain an active and productive role in rebuilding their communities. And finally, it makes a difference when we have women in our forces, who often have better access to local populations than their male colleagues when we engage with and involve 100 per cent of the population and not only the male leaders. When we provide opportunity and security to women to take their rightful place at the table and to have their voices heard when it is about finding lasting solutions to conflict.
So applying a gender lens makes a difference. It allows us to better see and understand the context in which we operate. It reduces risks and increases our operational effectiveness. It increases our chances to achieve lasting peace and security. So promoting, enforcing and living our principles of individual freedom and equality is both the right thing to do – it’s the smart thing to do and it’s a fundamental thing to do.
I think it is our only convincing answer to those who challenge the very foundations on which we built our new order. Our only answer to the security challenges we face today, our only answer is to be principled and to live our principles and prove them alive and relevant and inalienable. And to ensure that those nations who consider joining our community of values can make that choice without external interference in a free and democratic manner, and that we’ll respect that free choice. Thank you.
Mary O’Hagan: Thank you so much for the opportunity to contribute to this very important discussion. It is also my first visit to Estonia, which I am enjoying very much.
Like the previous speaker, I’m afraid I’m not a lawyer, I am not qualified to comment on very much of what the first speaker had to say, but I agree with a lot of it. I’m going to approach the question of human rights and the conflict in Ukraine from the point of view of an implementer of democracy programmes, rather than international law. And that means focusing on Ukraine’s democratic transition and internal dynamics rather than the conflict itself. I have been an implementer of democracy programmes with NDI since 2001, I’ve only served in Ukraine since July, but NDI has been there continuously since 1992. In my view, Ukraine democratic ’s transition today – which is known locally as the revolution of dignity — is the most important in the world. It has many attributes, and I’ll name just three of them and then I am going to pose three simple questions.
First of all, this transition is an expression of the legitimate right of any society to determine its own future. The conflict was triggered largely because of the determination of Ukraine’s people to express a view about what that future should be. Approaching this situation as a geopolitical problem implies that the views of great powers matter and the views of ordinary Ukrainians do not. That is something which I personally, I hope all of us would wish to confront directly.
It’s my view that the popular will of Ukrainians sits at the heart of the situation and will continue to do so. The second attribute of this transition is that it presents security issues both inside and outside Ukraine. It may be that fear of the establishment, the functional democratic system within Ukraine, was one of Russia’s prime motives in seeking to de-stabilise the country. But running back, allowing some bartering to go on about the rights of Ukrainians between third parties, is not going to solve the problem. The cycle of events of the last year is likely to repeat itself simply because a critical mass of Ukrainians are demanding that certain reforms happen, and any failure to do that is likely to be met by resistance.
The third attribute of this transition is that it is, as the previous speaker said, a test for Ukraine’s friends. How much are we willing to do to protect the values that underpin our own societies?
The first of my questions is why is it that Ukrainians are so determined to reform their political system? And this, to use the words of the President this morning, is an observable truth. This is the trajectory of the Polish economy and the Ukrainian economy since 1990. You won’t need me to explain to you that it’s the dark blue lines that represent Poland, and it’s the grey ones that represent Ukraine. Functional democracies are not just about lofty aspirations and ideals. They are about the lives and opportunities that ordinary people have. And nobody should be surprised or object to the fact that many Ukrainians would like to get onto the top part and not remain on the bottom one.
So what progress has been made so far? This is my second question. This is a result of a Crimson Hexagon research which is like a huge word association game looking at feeds in Russian Ukrainian from various social media sources. It’s for the search term “Poroschenko” during the period of the recent parliamentary elections in October. The reason I’ve got it here is because it represents a very important break with the past. Very few of those associations – if any – suggest that the Head of State in Ukraine was abusing his position during the course of this campaign. That is a decisive break with the past in Ukrainian politics. It also demonstrates that to a large extent, discussion of Ukraine’s internal reform issues was swamped by discussion of the conflict itself and people connected with it. That’s unfortunate and one has to hope that in the period going forward there will be more opportunities for the discourse to turn to how the Ukrainians realised their own ambitions.
The third question is about the outcome of those elections. To what extent was the popular will of Ukrainians reflected in the outcome? On the left you have the Parliament the way it is, on the right you have the Parliament the way it would have been if the electoral law had been reformed. This is a purer form of the expression of the will of the Ukrainian people and that is a less pure form. On the left, you’ve got 11 % of women MPs, on the right 20 %. On the left, you’ve got three parties needed to form a majority, on the right you’ve got six. I won’t dwell on the details of that, but I will say that to a large extent the urge for reform within Ukraine is reflected, even in the hybrid electoral system that was used.
Another aspect of progress that’s been made so far is resurgent civil society. This is a composite image that seeks to tell the story of civil society in Ukraine over the last year, moving from the Euromaidan protests on the top left to the work of experts within civil society on the transition itself. Here you’ve got an illustration of a resurgence of volunteerism, which I think has never been seen before to quite this extent in Ukrainian history. Ordinary people collecting money in large amounts to support the war effort.
Here you’ve got a slightly darker side of the current situation, which is the unceremonious dumping of officials associated with the previous regime in public trash cans – there were more than 80 cases of this in the run up to the elections. It’s important, however dramatic the context, to make sure that democratic values are defended by democratic means.
Just a word about what needs to happen now. First of all, it’s very important that there is an inclusive discussion of reforms. This is a map of turnout in the October parliamentary elections. It shows that between 25-50% of people participated in the election in a vast swathe of Eastern and Southern Ukraine, while turnout was higher in the rest of the country. There is a need for deliberate outreach to those who didn’t feel that those elections were something they wished to participate in.
I am glad to see that in the new coalition agreement, the rights of the minority parties in Parliament are very strenuously protected – another break with the past. And then the emergence of a new generation of leaders. This has already started to happen. The young woman you saw on the previous slide is Hanna Hopko, who has moved from civil society into politics, joined a brand new political party and has just been named the chairman of the Foreign Affairs Committee. That emergence of new leaders is very important.
These are images from some qualitative research we did recently, asking Ukrainians what kind of leaders they wanted. The good news from the point of underrepresented groups, particularly women, is that they were not filtering these images on the basis of gender or attributes of people that they themselves cannot change. They were filtered on the basis of integrity and professionalism and not looking like the old-style politicians of the previous Parliament. Thank you.
Andres Parmas: Yes, I will speak in Estonian. You asked me what international criminal law can do in a situation like the one in Ukraine or other such situations. But a bit earlier you asked me, when you were talking about this panel, whether international criminal law is Utopian. And I would start there and I will answer that it isn’t, in my opinion.
Since the Second World War there has been a breakthrough in attitudes, and the concept of personal responsibility has been firmly established as has the understanding that personal criminal liability exists for the most serious violations of human rights, regardless of where they are committed. But of course also the fact that this principle has often remained purely declaratory in nature.
Now the question is what we should think of this reality. Does it mean that we should accept that international criminal law is not quite real law, or maybe not. Is it just part of the so-called diplomatic arsenal, a means of exerting pressure in negotiations or is it a legally binding construction? I think this view is a question of how we should understand international law and its normative character in this framework. I think that the practice of different states and the behaviour of actors within the international community rather shows that these legal constructions are relied on, they are looked to for justification for their actions, and it is considered important to underscore norms. So international law and international criminal law should be addressed based on practice, as a normative structure. And its non-application in some situations is simply reality.
But domestic criminal law or any other branch of law is not always applied, either. That doesn’t mean that this law doesn’t exist. Or that it is Utopian.
Next we can then ask that if international criminal law exists but it seems that states don’t apply it, does this mean that there is a consistent and systematic disregard for this law that renders it meaningless? Yes, there is no doubt that international criminal law, this normative system, is quite often disregarded, but we also shouldn’t be so clearly and only critical. I’ll try to explain.
The thing is, that international criminal law in many ways is subjected to very high pressure. On the one hand it is penal law, criminal law, with its very strict principles: personal responsibility for a specific act, the requirement of clarity and all that traditionally goes with criminal law. But on the other hand we can’t deny that it is nevertheless part of international law that has completely different regulation mechanisms and ways of functioning, which at best are very difficult to reconcile with the requirements of precision and specificity in criminal law.
On the other hand the problem lies in that the international community has very different expectations for international criminal law. It is hoped that it will help de-escalate or end conflicts, that it will guarantee and ensure peace and security. That it would help reveal some objective or historical truth about some conflict. That it would provide victims with justice, introduce or establish the idea of general prevention and the belief that heinous violations of human rights will not go unpunished. And finally it is expected to punish specific criminals or perpetrators in criminal proceedings.
It is not hard to see that there is an antimony between these goals. The language of criminal law isn’t really suited to achieve all of these goals. And this multitude of goals and contradictions also cloud our understanding of what criminal law should actually do, or why the criminal law system exists.
We have to admit that this is where many of the problems start: contradictions between promises and reality make it hard to take criminal law seriously and undermine its trustworthiness. Because no one has managed to very clearly or more precisely define these objectives, it is also possible to abuse international criminal law, so to say. And there are many examples of where attempts have been made to use international criminal law to achieve or do something it is unsuited for. One example are the tribunals created by the UN Security Council on Yugoslavia and Rwanda, which were in some ways like rescue operations so Western states could stand tall or maintain some sliver of dignity and go on in a situation where they had actually just watched horrible crimes happen without being able to do anything to impede them. They established the tribunals with the slogan that this will now help stop these crimes. The Yugoslavia tribunal was in fact established in 1993 while the worst crimes were committed in Bosnia in 1995. There is no preventive effect to be seen.
Or then the International Criminal Court, which has now been operational for over ten years. The Ugandan Government appealed to the Court to investigate war crimes committed in Uganda. Their intent was to use it as a purely political means to put pressure on the opposition armed rebel organisation Lord Resistance Army in one of the Northern areas of the country to gain the upper hand in negotiations with them. And when at some point this would be sufficiently achieved, then it was hoped that the International Criminal Court would suddenly step aside, get out of the way, and not bother them anymore. Because the threat of punishment was what started to interfere with the agreement at some point.
What I want to say is that criminal law is subsidiary, it is an ultima ratio measure which cannot and must not be applied as a preliminary measure in the case of gross violations of human rights. It is a reactive measure, which can only function with regards to a specific perpetrator and his personal liability, and definitely not on the pereat mundus principle. We have consider that there has to be a context where criminal law can really achieve something, not just throw it in the air as a slogan or use it as a political device.
A Canadian international criminal law expert, Frederic Megret, has said in this context that the existence of law does not mean that we don’t have to make choices. Law just gives those choices meaning.
Whether for example we might some day be able to bring the people who shot down the Malaysian Airlines airliner before the court is in one way hard to predict, but it’s not a legal problem at all, it’s a political problem. We have all the mechanisms needed to try such a crime in for example the International Criminal Court. Theoretically it is possible. Application of the law, however, depends on whether there is a suitable context. First the conflict has to have reached a stage where we can start to discuss these things calmly at all. To go and poke and threaten now, that we are going to start conducting some sort of criminal investigation, would clearly not be very useful towards lowering tensions. Thank you!
Lauri Mälksoo: Ok, we now have time for some questions and general debate. Let me start by asking each of you if you have comments or reactions to your co-panellists. Something that made you think that you would like to link your own thought to what he or she said or that you want to supplement. If not, then I would focus in my own questions to you on this notion of transformation, which is in the title of our panel.
Let me start with Christopher. You and I, we are also engaged as academics in what some people call comparative international law. The idea of how international law might be understood in different countries, in different regions around the world. Reading human rights literature discussing human rights ideas one inevitably meets this criticism of human rights that it tends to be historically a Western idea. My question to you would be that, concerning this Russian initiative in the Human Rights Council, how do you see that from that perspective? Do you see that other non-Western regions of the world have been a bit on the margins of the human rights ideas and debate in the second half of the 20th century? Do you think that it is perhaps in some ways good that in this Russian initiative, now they are engaging themselves with the core ideas of the Western thought, to some extent, even if critically? And whether this will transform to some extent general human rights debates, and others will more vocally participate?
Christopher McCrudden: Thank you for the question. The difficulty I think is that in many ways the Russian initiative was extremely clever. Because it managed to do two things: One was that it gained a lot of support right across different groups in the United Nations, so the Americans and the North Americans more generally and the Europeans opposed the resolution, but it gained quite considerable support from other blocks. So there is clearly an appetite for this kind of initiative. The reason for it is puzzling, but it seems to be a resistance to – you’re right – a Western cosmopolitan notion dominating human rights, and a need to see globalisation as being more pluralistic in its results. The notion is essentially to re-interpret some of the common understandings through this lens of traditional values, which I take to be a notion about the respect we need to accord to other regions’, other countries’, other nations’, other peoples’ understanding of what is important to themselves.
So one can understand therefore the way in which the Russians capitalised on that kind of hunger for respect across the globe. The problem of course is that in doing so, it seems to challenge a number of particular developments in human rights law. And in particular it challenges notions of women’s equality and notions of equality on the basis of sexual orientation. That’s clearly what it’s at part targeted at. So the role of the Russian Orthodox Church in supporting the resolution is clearly an important element in this mix. So where is it going to go? The resolution has been passed. It is clearly an attempt at influencing the discussions, it’s not immediately going to transform international law. The Russians as indeed all of the other countries that voted for it are still bound by international law. But I come back to the initial first slide, which is that international law is not only a question of treaties, it is also a question of practice. And that’s when it become worrying, because we may be seeing a rather smart attempt to affect practice as a way of potentially undermining degrees of consensus on the interpretation of the treaties. So is it a disaster? No. Is it potentially supportable in some respects? Yes. Is it a potential danger? Very much so.
Lauri Mälksoo: Thank you for this answer. Marriët – transformation. Do you think this Ukrainian crisis, the events of 2014 have in some ways transformed NATO? Or it seems to me, reading the news, that in some ways NATO has found reasons to consolidate after these events. Is that your impression as well? Or was it that everything was always good and there was no need to consolidate, everything as it was?
Marriët Schuurmann: No I think you are right, it has forced the alliance to be more united. And I am not only talking about NATO, but also the European Union. To sort of revalidate the foundations of these international alliances and organisations, and why we were created and what we are supposed to defend. As I said, it’s a bit “back to basics”. There seems to be more resolve and unity, whereas there may have initially been two camps on how to respond. The two camps have pretty much come together on one and the same page on how we should respond to this attack to our community of values.
Lauri Mälksoo: I think it is fair to say that international law and upholding the rule of law in international relations has been a Western value. For example, if you listen to President Putin’s speech in the Kremlin in March, 2014 when he justified the annexation of Crimea, he made interesting remarks there about international law and of course one of the remarks he said was that at least now the West was speaking about international law. Returning to criticism that it is the West that started to violate international law in places like Kosovo and Iraq. But one needs to say to that the West, or the Americans or the British or whoever – no one annexed anyone, for example. And emphasis was put on the idea, for example, that the intervention in Kosovo was a last resort. These governments tried to justify, well or not so well, that it was a sui generis issue. Christopher, please.
Christopher McCrudden: Did somebody make the obvious point of so far as I know, none of the states we are talking about have reneged explicitly on their international law obligations. They all seem to be still saying that they are bound by international law. Clearly there are vastly different interpretations of it. But it’s an important point that Russia is as bound by international law as it was before the crisis. That it has not explicitly said that it is not bound, it has not denounced the treaties, it has not sought to change customary law in a dramatic way. It’s important I think, echoing the Ambassador’s point, that we ensure that those values that are already embedded in what they have agreed to – remember this all derives from the consent of states – and what they have already agreed to are implemented effectively. In other words, we take their commitments at face value. They have agreed to this, therefore they are bound, therefore it should be implemented. From that point of view it’s a relatively simple equation, which has not, as far as I know, been sought to be countered.
Lauri Mälksoo: Mary, Ukraine’s future – on the one hand you talk of the key words “democracy”, “prosperity” and this gap between Poland’s economic development and that of Ukraine. What is your estimation working there? Is it going in that direction? Or there are also gloomy scenarios, the scenario of the winter coming both around us in terms of nature but also in terms of Ukraine not going in a good direction. Perhaps the country is splitting up one way or another. What is your current estimation?
Mary O’Hagan: This is a very large question which I will try to answer briefly. I think that all democratic transitions are a bit like trying to open an external door on a moving ship in a gale. There are forces trying to open the door, there are forces trying to keep the door shut, and the deck can move in any direction at any time. In the Ukrainian case, there are very broad-based societal forces determined to get the door open and keep it that way this time – bearing in mind that in 2004 there was a previous attempt at a transition in Ukraine. There are forces, very entrenched, vested interests inside and outside of the country who would like the door to stay closed. And the moving deck, in other words the unexpected events that can happen at any time, well there are two obvious ones: one is the evolution of the conflict itself. And the other is the economy, which is in very serious difficulty. On the evolution of the conflict itself, I don’t think there is anyone in Ukraine who really believes that they are in a position to resist Russia by force.
When I first came to Ukraine there were lots of comments coming from different parts of the Russian regime to the effect that they can be in Kiev in a fortnight, and that sort of thing. And I am sure if they wished to do it by conventional means or other means they could do that. And Ukrainians understand that achieving this transition is not really a question of winning on the battlefield. Achieving this transition is a question of departing from the paternalistic mind-set that has made it so difficult for Ukraine to follow Poland’s trajectory until now. So that party that I showed you on the slide, Hanna Hopko’s party, the name translates as ‘Self-Reliance’. And what they stand for and what they got a point of 0 to 13 % in a matter of weeks, what they stood on was the notion that we now have to take charge of our own destiny and do it for ourselves. Not relying on the international community to do it for us, not relying on our leaders inside Ukraine to do it for us, but we, the Ukrainian people, to do it for ourselves.
I can’t predict whether the door on the ship is going to be fully opened and how long it will stay that way. But what I would say is that given that you have this broad-based popular will to move in that direction, even if it is a very bumpy ride, I find it hard to believe that Ukraine can travel back to where it was.
Lauri Mälksoo: Andres, finally you. You are an international criminal law expert, but on the other hand you are of the same origin as Friedrich Martens and Ants Piip, that is to say Estonian. What role do you see in international law, perhaps also in international criminal law, for small states and specifically Estonia? Does Estonia also have any chance in your opinion to contribute to these processes, or are we inevitably small observers who at best just try to survive?
Andres Parmas: Estonia is undoubtedly a very small state, but why should it be an observer? The world is made up to a large extent of small states and I think that one thing that is right for small states like Estonia to do is to stand tall and stand up for their values. Of course there are forces that may run us over. Alone, there is not much we can do about that. But by standing up for our values and inspiring others to stand up for their values, we are more numerous and we are stronger. I think so. Criminal law has a role to play in all of this. The fact that the International Criminal Court today exists and functions – Estonia has also had a rather important role in its work in the meanwhile when Tiina Intelmann served as the President of the Assembly of States Parties up until this year. By promoting such organisations or initiatives and by strengthening them, we also strengthen the values system we ourselves believe in.
Lauri Mälksoo: To somehow bring these topics together, last night I read in the news that the Prime Minister of Ukraine, Arseniy Yatsenyuk, has initiated or Ukraine has initiated a case against Russia due to the events in Eastern Ukraine in the International Criminal Court, which in itself is quite an interesting move, because neither state is a member of the Court or thus under its jurisdiction, but complaints against Russia have already been filed in the European Court of Human Rights as well. There are two kinds of complaints in the European Court of Human Rights: that in one a citizen can file a complaint against his own country, but also one Council of Europe member state can file a complaint against another member state.
Thank you for this panel. I think now it is high time that we go to questions and comments from the audience, if there are any. So please, raise your hand. There, the gentleman in the second row. Please also introduce yourself.
Uve Poom: Hello, I am Uve Poom from Unitas Foundation. To continue on the last topic – considering that Ukraine has not yet ratified the Statute of Rome, how might ratification of the Statute of Rome affect human dignity in the Eastern regions where there is war, but also for example in Crimea?
Lauri Mälksoo: I think you have to solve this problem, Andres.
Andres Parmas: First it must be said that Ukraine is not currently a state party to the International Criminal Court, but this spring Ukraine applied to the Criminal Court and asked it to conduct a preliminary investigation into the crimes committed in Ukraine. I think it was from November 2013 until the second half of February. The Statute of Rome allows for such requests for ad hoc recognition of jurisdiction. So theoretically Ukraine could expand its application to subsequent crimes and ask for an investigation to be conducted into these as well. How would this affect human dignity?
I think that the fact that the International Criminal Court would acquire jurisdiction over the crimes committed in Ukraine would in itself be a good thing. And from there on it is a more complicated question of when or how quickly the International Criminal Court should take steps in conducting these investigations. In initiating an official investigation should it consider the political situation specifically in Ukraine, Europe or in the world more broadly? This is a question that the International Criminal Court has been criticised for in the past, that it runs around with blinders on, not wanting to take the surrounding reality into account. They have been accused of trying to enforce their right at any cost, even though enforcing this right might do more harm than waiting or using other methods of dispute resolution.
Christopher McCrudden: It’s a more general comment that arises out of the question, and it really relates to the question about the consistency of states in acting the way they speak. I think it would be wrong to want to get to a situation where either international human rights law or international criminal law was seen to be directed only against one region. And in this context, I think it’s important for us to be honest and say that some of those who appear to be strongest in supporting international human rights in one context do not act in the way that they speak – and I am thinking in particular of the United States with which I have a long and very friendly relationship. So this is a friendly critic, rather than someone who is opposed to the United States. A very friendly critic. But when the United States does not ratify the Rome Treaty, when it does not ratify many of the international human rights instruments – it would be a stronger voice were it to act in a way that would be consistent with its own values and the values it seeks to protect internationally. So one has to be balanced here in wanting an effective international system not just against one region, but generally. It is only in that way that we are going to get an acceptance that President Putin’s argument is a flawed argument that it’s simply being used against it – it’s not.
Lauri Mälksoo: I think it’s a useful reminder that the world in terms of the performance of human rights is not entirely black and white.
Christopher McCrudden: Precisely.
Lauri Mälksoo: And it’s also useful to always look at how we are doing, right? Other questions? Please.
Idir Laurent Khiar: Idir Laurent Khiar from the Model United Nations Association of Estonia. You referred to the Russian initiative concerning human rights at the United Nations level, kind of promoting more conservative or traditional rights and putting these values into human rights, and I was thinking that maybe we should also interpret this move not only by Russian but also by other states that support it, as actually losing ground in terms of values. Maybe we should also look at this as a result of globalisation of human rights, and I was wondering if you could elaborate a little bit more about on how human rights are globalised and also maybe how those new values have affected let’s say the past revolutions in the Arab world and maybe also more recently in Ukraine.
Lauri Mälksoo: That’s a quite broad question. It’s the kind that opens an academic week. Christopher, I’m afraid it has to be you.
Christopher McCrudden: I think what it means is that I’m clearly going to have to come back to Estonia, which I am looking forward to, to spend many happy weeks discussing exactly those questions. In the one minute I think that I’ve got, let me address it in the following way. I think you are right in saying that to some extent it’s an indication of a sense of loss, a sense of being on “the losing side”, if that’s the way to put it, in terms of some conservative values. I think the problem with it is, the problem of analysing it only in this way is that in other contexts we want traditional values to be seen to be incorporating the values that we hold dear. I’ll take one example as a contrast. In the South African context, the South African Constitutional Court has gone out of its way to interpret traditional African approaches and customs by incorporating a notion of what they call ubuntu. Ubuntu is a traditional value, but it is one that according to the South African Constitutional Court establishes and incorporates all of the values that we’ve been talking about today. So I think it would be unfortunate if we allowed the notion of traditional values, which many of us have in these societies, to be captured by a particular ideological position.
Lauri Mälksoo: This is a good occasion to give each of you a final word. Christopher, this perhaps was yours, but now Marriët I will give you yours – unless Christopher you want to add something at the end.
Marriët Schuurmann: My final comment will be linked to this notion of traditional values, because we always have to be a bit cautious about who raises traditional values and how traditional they are. And one thing I’ve learned from the First Lady of Afghanistan, Rula Ghani, who spoke in Oslo on the 23rd of November. She appealed to Afghan women to reconquer their past and she named all the female leaders from the seventh century, from the time of the Prophet, until the 21st century that played a key role in shaping their society, their value systems and their future. Something else I learned from the women in Afghanistan is that in order to counter some of what is presented as traditional Islamic values that basically take away from their active role in society , what they do is they arm themselves with knowledge. They make sure that they are well aware of what the religious teaching is, and where it is misused for other purposes, for imposition, for power-play, etc. So we always have to be very cautious when traditional values are named that we aren’t talking about something else and a sort of interpretation of traditional values – we have to know what we are talking about.
Mary O’Hagan: I think on traditional values, one of the things that matters is in what cause is that notion deployed. In other words, what behaviour is it being used to justify. If I revert to thinking about the Ukrainian context, I don’t think that Ukrainians are thinking about Russia’s motives as being the defence of any values, traditional or otherwise. I think they would regard Russia’s motives as being about the re-establishment of empire, a different kind of piece of history.
Andres Parmas: I would add a small comment to what Christopher said earlier, about standing for one’s values or promoting them, enforcing them and highlighting them. A critical remark towards the US and some other Western countries, but mostly the US, which talks about the need to guarantee human rights a lot and teaches everyone else, but doesn’t tend to follow these words itself. I recently read a book “Father and Baby”, in which the respected psychologist Tõnu Ots teaches fathers how the child-rearing process works. This works primarily by providing an example, but it doesn’t work if you tell a child: now follow my example, but rather by the way a person acts. I think this is actually a very important point, that the example that the Western world and leading countries provide has to be right.
Lauri Mälksoo: And with that we can also provide an example by saying that it is a human right to have food, and we will now have our lunch break.