John Laughland – UN debate talk: “The lost art of peace”.

John Laughland

As the president of the General Assembly, Mr Vuk Jeremic, said in his opening remarks, we meet today on the occasion of the 20th anniversary of the creation of the International Tribunal for the former Yugoslavia in 1993.  This marked the beginning of the modern period of international criminal justice which has seen the proliferation of international criminal tribunals.

However 2013 is also the year of another important anniversary which directly concerns the theme of our discussion this afternoon, reconciliation.  It is the 50th anniversary of the signature of the Elysée Treaty between France and Germany, an event which is widely recognised as the key moment in the reconciliation between two major European powers whose wars in the 19th and 20th century plunged the whole world into chaos.

I would like to use these two anniversaries to make two points about justice and reconciliation. The first point is constitutional; the second is historical.

The constitutional point is this. I am firmly convinced that the project of international criminal justice is doomed. As I have argued in my books, lectures and articles, I believe that the goal of assigning to international tribunals the role administering the laws of war is fraught with insuperable constitutional, moral and political obstacles. I also consider that the criminal law simply collapses under the weight of judging political leaders, because it is basically impossible to assimilate acts of state to private crimes, and I believe that the ad hoc tribunals and the ICC have violated the most elementary principles of international law and indeed of law itself.  They have done this either because their legal basis is unsound (this is the case for the ad hoc tribunals because criminal tribunals must be created by law, not by executive acts like Security Council resolutions) or because they have overstepped their powers (this is the case for the ICC which has indicted citizens and even heads of states which have not acceded to the Rome statute).

I believe that the numerous criticisms that we have heard today of the functioning of the existing tribunals, most notably from the President of Serbia and from the Minister of Justice of Rwanda, are the inevitable result of these fundamental constitutional problems.  The malfunctioning of these tribunals and their perceived partiality cannot be finessed away, as their supporters say they can, by arguing that international justice is in its infancy and that it needs time to develop.  No, the basic constitutional problems will remain and they will continue to stymie and to sabotage the project at its very base.

I stress that of course I believe that war crimes should be prosecuted, but that this must be done in the strictest possible adherence to the rule of law as defined by Dicey:  “We mean [by the rule of law], in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.”[1] Indeed, this is precisely why I argue that the international criminal tribunals, which violate these key principles, are a mistake and should be abolished or radically revised.

I believe, moreover, that the United Nations system is itself endangered by these developments and by the rise of that interventionism which international criminal justice embodies.  These developments reinforce the imbalance of power in the hands of the Security Council, something which I believe to be unsustainable over the long terms, and they weaken the principles of sovereign equality and non-interference which are reaffirmed not only in the UN Charter but also in numerous resolutions of the General Assembly over a period of many decades and by numerous rulings of the International Court of Justice.

I do not believe, therefore, that international criminal justice has any role in reconciliation.  I believe that the constitutional and political problems of international criminal justice are intractable.  Moreover, I argue that the rise of international criminal justice is itself a symptom of the fundamental problem which is the decline in the conceptual understanding of the role of the state.  This decline corrodes our understanding of war itself and therefore also of peace.

The decline in the understanding of the role of the state is essentially a post-Cold War phenomenon.  The period since the collapse of the USSR has seen a dramatic rise in the number of UN Security Council resolutions, a rise in the number and power of supranational organisations like the EU, the WTO and of course international tribunals.  In many walks of life, and now in the laws of war and peace, it is assumed that international organisations are better than national ones.

I believe this to be a mistake. International criminal justice illustrates this mistake with the greatest possible clarity because the legal right to administer justice – to prosecute and punish criminals – is the definitive characteristic of statehood. It is even more definitive of statehood than other traditional attributes of statehood like the right to wage war or the right to issue currency. The legal right to punish criminals brings sovereignty to its purest possible expression because the right to use violence is legally unimpeachable. The difference between a state imprisoning criminals and a kidnapper provides us with the very definition of statehood itself.

This unimpeachable right to administer punishment is enjoyed by the state under very clear conditions, namely that this right is exercised in return for general protection of law-abiding citizens. The right derives, in other words, from the social contract. That social contract is systemically broken by international tribunals which offer no protection in return for the punishment they administer because they are not part of a state and have no police force. Not embedded in the structures of statehood, international criminals are a perfect example of power without responsibility. This simple constitutional conundrum is at the heart of all the other defects which convince me that international justice cannot work.

This failure to understand – or this desire to obscure – the basic realities of statehood has also infected our understanding of war and peace. I believe that, on the contrary, warfare is precisely a political activity, invariably conducted by states or their proxies or by groups aspiring to wield state power.  It is precisely one of the consequences of the decline in constitutional thinking that warfare is now understood largely, perhaps primarily, in terms of the criminal law and not in terms of politics and statehood. But war cannot be assimilated to the conduct of a private criminal, as it so often in for the purpose of convicting political and military leaders with the new theories of liability known as joint criminal enterprise.  These theories do not correspond to the political or the anthropological reality of war, which is a public and collective act.

By the same token, peace is – or should be – the work of states. Peacemaking is an art, an art which was painstakingly constructed over many centuries by European powers and which forms the basis of modern international law.[2] And the key point, I submit to you today, about this centuries-long tradition of peace-making is, first, that it has been eclipsed (“engulfed” might be the right word) by the World Wars of the 20th century and, second, that it was crucially based on the concept of amnesty.

This brings me to the second part of my argument, which concerns history.  Throughout the entire late medieval, pre-modern and modern period, indeed, that is to say from at least the 14th century onwards until the early decades of the 20th century, peace treaties were concluded between states on the basis of amnesty.  Historians of international law often point to the amnesty granted in 403 BC in Athens after the expulsion of the Thirty Tyrants and I am sure that antiquity and the early medieval period must provide plenty of examples too.  But historians also agree that this tradition because the overwhelming norm in the four centuries from say 1300 to 1918.[3] Clauses, enjoining a general forgetting of all the grievances each side had suffered, and preventing judicial actions by individuals to right past wrongs, had become common by the late fifteenth century and can be found in earlier treaties.[4] Indeed, Jörg Fisch notes a rise in the frequency of the vocabulary of forgetting throughout the whole of the medieval period. [5]

To give a flavour of the kind of clause we are talking about, let us quote Jean II (Jean le Bon) of France who in the Treaty of Brétigny (1360) stipulates as follows:

Et dès maintenant quittons, remettons et pardonnons à tousiours de grâce especial et de certaine science et d’auctorité royale, à tous ceulx de nostre royaume et de nos subgiets, toute peine, offense ou amende criminelle ou civile qu’ils pourront avoir encouru envers nous, pour avoir esté de la partie de nostredit frère. [6]

These amnesties were typically proclaimed in the form of a “general abolition” of all fines or punishments which would have accrued for acts committed during war time.

In 1465, for instance, in France, Louis XI instructed his lieutenant-general, Jean de Bourbon, to give to members of the defeated side “lectres de remission, pardons et abolicions et de toutes autes choses à ce nécessaires et convenables et telles et si amples qu’il verra non estre.”

This notion of amnesty was, of course, closely linked to the concept of pardon.  In many proclamations, the various notions were conjoined together, such as at the Peace of Pouilly le Fort in 1419 when the king decreed, “Remectons, pardonnons et quittons.”  There are very numerous examples of the same thing throughout the 15th century and indeed right through the history of international law until 1918.  As Nicolas Offenstadt says, the medieval belief was that “Peace in the realm can be built only on forgiveness.”  This pardon can be vertical – accorded by the sovereign to a defeated vassal or other enemy – or horizontal, between princes:  at the peace of Auxerre in 1412 the parties agreed

Que d’oresnavant ils seront bons amis ensamble, et aussi tous leurs parents et serviteurs, , et jamais de demanderont aucune chose  l’un à l’autre … et que jamais n’aurons dissention, débast ou division l’un envers l’autre. [7]

It is obvious that the frequency of such amnesty clauses is the fruit of Christianity.  For the authors of these treaties, pardon (or at least forgetting) was the indispensable precondition for peace.  They were deeply penetrated with the wisdom of the Ten Commandments whose second part, as René Girard has pointed out [8], contains a list, in reverse order, of the tensions and disputes which constitute or lead to violence:  thou shalt not kill, thou shalt not commit adultery, thou shalt not steal, thou shalt not bear false witness, thou shalt not covet.  Covetousness and false witness (false accusations) are the spark which ignites the cycle of violence, culminating in murder; it is therefore essential, if peace is to be preserved, that the amity which all peace treaties traditionally evoke, must be protected if the proclaimed peace is not to collapse immediately under the weight of mutually reinforcing recriminations.  This is why some of the peace treaties from this period even regulated speech: the treaty of Arras in 1435, for instance, stipulated that “injures” (insults – what we would call “hate speech” today) would be “estreintes et abolies”.[9] This reflects the understanding that physical violence can easily be the response to verbal violence and that the key to peace lies in eradicating the problem at its very root.

Although the granting of amnesties was obviously inspired by the Christian ethic, it is important to stress that it was not a private act of forgiveness but instead a public or political act of forgetting.  It was a decision taken by the highest authority in the land that there would be not future recriminations for past wrongs.  Forgiveness was no doubt desirable but amnesty was a political decision to achieve the outcome of forgiveness without necessarily engineering the forgiveness itself, which is impossible anyway to decree.  The parties were enjoined to bury their past wrongs under oblivion: etymologically, “amnesty” means “forgetting” not “forgiving”. The concept of amnesty and / or pardon was therefore coeval with the concept of peace and amity (amicitia) which all peace treaties, by definition, promulgated.  As Heinhard Steiger writes,

The classical amnesty was linked with general oblivion … This meant that, once the peace was agreed upon, there would be no further consequences drawn, no legal actions taken and, foremost, no new war started in reaction to anything that had occurred before or during the war.  Peace came down to a new beginning.  Old debts should not burden the peace.  Criminal proceedings were also excluded … Also with respect to amnesty it was clear that by ‘peace’ a material state on the basis of reciprocity, equality, esteem and orientation toward the future was meant.  Peace, friendship and amnesty in their mutual relation were the three essential points of all classical peace agreements. [10]

Indeed, so common and even standardised had such amnesty clauses become that, by the beginning of the 17th century, i.e. half a century before Westphalia, they had come to be considered an inherent to any peace agreement and therefore implicit in each peace settlement.  Grotius wrote quite clearly in 1625 that in case of doubt amnesty should be assumed:

If no other agreement has been made, in every peace it ought to be considered settled that there shall be no liability on account of the damages which have been caused by the war.  This is to be understood also as to damages suffered by private persons; for such damages also are the result of war.  In case of doubt it is presumed that belligerents intended to make such an agreement that neither would be condemned as guilty of injustice.[11]

A hundred years later, Emmerich de Vattel wrote the same thing as Grotius:

An amnesty is a perfect oblivion of the past; and the end of peace being to extinguish all subjects of discord, this should be the leading article of the treaty: and accordingly, such is at present the constant practice. But though the treaty should be wholly silent on this head, the amnesty, by the very nature of peace, is necessarily implied in it … All damages caused during the war are likewise buried in oblivion; and no action can be brought for those of which the treaty does not stipulate the reparation: they are considered as having never happened.[12]

Certainly, Westphalia confirmed the trend. The Treaties of Münster and Osnabrück (1648) in this respect do not constitute a watershed in international relations.  Their amnesty clauses were very traditional: Article 2 of the Osnabrück treaty signed on 24 October 1648 reads as follows:

“There be on both sides a perpetual Oblivion and Amnesty of all that has been done since the beginning of these Troubles … so that neither for any of those things, nor upon any other Account or Pretext whatsoever, any Act of Hostility or Enmity, Vexation or Hindrance shall be exercis’d or suffer’d … etc. … but that all Injiries, Violences, Hostilities and Damages and all Expences that either side has been olig’d to be at … and all Libels by Words and Writing shall be entirely forgotten … so that whatever might be demanded or pretended by one against another upon this account, shall be bury’d in perpetual Oblivion.” [13]

It is important to emphasise that such amnesty clauses are conceptually in contradiction with the just war theory which argues that the other side does not have the right to wage war.  The unjust belligerent enjoyed no ius ad bellum at all and therefore could hardly be granted an amnesty.   As Randall Lesaffer says, “In its late medieval conception, war was conceived of as an instrument of law enforcement, a substitute for legal trial in the hands of a sovereign to enforce his just and rightful claims upon an enemy who had allegedly injured these rights.”[14]  According to the just war doctrine, precisely, right is on one side and one side alone.

The rise of amnesty clauses is therefore co-equal with the decline of the concept of just war.  Historians of international law overstate, I believe, the way in which this decline of the just war theory coincides with the rise of the concept of state sovereignty.  My view is that the just war theory more or less consumed itself, so to speak, because the conditions imposed by theologians like St Thomas Aquinas, and even more so St Augustine, on the concept of just war, were so strict as to make them almost impossible to achieve.  St Augustine even says that the concept of just war makes war even more miserable than before.  So there is a tendency to exaggerate the rise of the role of sovereignty in this development, and in any case I believe that the rise of sovereignty is itself best understood in other ways. [15]

By the same token, the return of just war theory in the concept of the “war on terror” and “humanitarian war” tends to overlook a key aspect of Thomist just war theory, which is that it is a formally declared relationship between states duly proclaimed by the legitimate authority: just war theory therefore emphasises the public and political – specifically inter-state – nature of warfare where modern just way theory tends to treat war as a police action to deal with criminals.

State sovereignty, moreover, is not a doctrine or an ideology but an analysis of reality – of the reality that the world is divided into different jurisdictions and that, therefore, it is not possible, as a matter of positive law, for one sovereign to condemn another because par in parem imperium non habet.  As Randall Lesaffer states, “In none of the peace treaties analysed for the period between 1454 and 1648 can a clause be found in which the responsibility for the war is assigned to a single belligerent party.” [16]

Even in cases of rebellion between a sovereign and a vassal, where one would most expect justice to be ascribed to one side alone, there are examples of where the victorious sovereign forebears to apply punitive measures based on the proclaimed injustice of the rebellion.

This is why the tradition really did continue until well into the modern era, until the early 20th century in fact.  Whether or not they contained specific amnesty clauses, treaties typically proclaimed “peace and friendship” which obviously excluded prosecutions after the signature of the peace.  Article 16 of the Peace of Paris in 1814, for instance, signed between France and Britain before Napoleon’s ephemeral return to power, proclaims “perpetual peace and friendship” between the two countries, lists various territorial arrangements and settlements and then states this:

The high contracting parties, desirous to bury in entire oblivion the dissensions which have agitated Europe, declare and promise, that no individual, of whatever rank or condition he may be, in the countries restored and ceded by the present treaty, shall be prosecuted, disturbed, or molested, in his person or property, under any pretext whatsoever, either on account of his conduct or political opinions, his attachment either to any of the contracting parties, or to any government which has ceased to exist, or for any other reason, except for debts contracted towards individuals, or acts posterior to the date of the present treaty.

By the same token, Article 5 of the Treaty of Paris of 1856, which put an end to the Crimean War, also contained a detailed and explicit amnesty provision:

Leurs Majestés l’Empereur des Français, la Reine du Royaume Uni de la Grande Bretagne et de l’Irlande, l’Empereur de toutes les Russies, le Roi de Sardaigne et le Sultan accordent une amnistie pleine et entière à ceux de leurs sujets qui auraient été compromis par une participation quelconque aux événements de la guerre, en faveur de la cause ennemie.

Il est expressément entendu que cette amnistie s’étendra aux sujets de chacune des parties belligérantes qui auraient continué, pendant la guerre, à être employés dans le service de l’un des autres belligérants.

There are very many other examples of the same kind of amnesty:  Article 9 of the Nanking Peace Treaty between Britain and China, signed on 29 August 1842; even the treaty of Brest-Litovsk of March 1918 enjoined both sides to live in peace and friendship (Article 1) and forbade hostile propaganda between the two former belligerents (Article 2). As late as the ephemeral Treaty of Bucharest signed between the Central Powers and Romania on 7 May 1918, the contracting parties mutually renounced indemnification for their losses incurred during the war (Article 13) while Article 29 specifically recognised the decree of amnesties. But even where there were no amnesty clauses in 19th century and early 20th century treaties, contemporary literature confirms, for the most part, that they were assumed to be an integral part of any peace treaty and therefore did not require specific enunciation.[17]

In other words, there is an uninterrupted tradition stretching from at least the late 1400s through until 1918.  In spite of what Carl Schmitt writes in Der Nomos der Erde, the de-criminalisation of war which superseded the just war tradition (about which much nonsense is talked anyway) was not a 17th century phenomenon and it is not linked to the rise of the modern sovereign state.  It is, instead, a tradition which lasted for half a millennium and which in any case had precedents in antiquity.

This all came to a sudden end with the Paris Peace Treaties which ended the First World War.  Not only was there suddenly no commitment to peace; there was also no commitment to amnesty and, instead, the famous indictment of the Kaiser and the punitive reparations imposed on Germany.  Versailles was not, in that sense, a “peace” treaty at all.  The moral condemnation of Germany was in some ways a substitute for the fact that, in reality, the country had not been militarily defeated (at least there were no troops of occupation on its territory) and it was precisely that moral condemnation which, by common consent, led to the resentment and anger which fuelled the rise of Hitler and the outbreak of the Second World War.  That the art of peacemaking had indeed been lost or forgotten is emphasised by the fact that the Second World War was also, famously, not concluded by a peace treaty but instead, like the First, by a simple cessation of actual hostilities.

Reconciliation did take place, however, step by step at first with the creation of pan-European institutions like the Council of Europe (1949), the European Coal and Steel Community (1951), the European Economic Community (1957).  However, by common consent, it is the Elysée Treaty of 1963, and especially the meeting of De Gaulle and Adenauer who attended Mass together in Reims cathedral, which marked the true solemn sealing of Franco-German reconciliation.  That two state leaders were able to meet and attend the same Christian service was about as traditional – one might even say, medieval – a gesture as one could imagine.  It marked the definitive political end to the Franco-German rivalry which had bedevilled European politics since the Napoleonic wars and that political reconciliation, effected from above by the two leaders of the day, has not been questioned since.  This act shows the importance of political public acts of reconciliation as the driving force behind peace.  One can think of other examples, such as Willy Brandt’s famous kneeling before the monument of the Warsaw Ghetto.

Even the UN Charter can be understood in these terms.  The UN Charter was written with an acute understanding of the horrors of war which are evoked in its very first words.  The authors knew that all pretexts for war, except self-defence, had to be closed down.  This is why the Charter itself, and the numerous General Assembly resolutions and ICJ rulings I have mentioned, all affirm non-interventionism and the sovereign equality of states as the cornerstone of the UN system of peace.  20 years after these truths started to be obscured by a new and regrettable departure in international law, it is essential, in my view, that the world re-discover this, the lost art of peace.

[1] A. V. Dicey, Introduction to the Study of the Law of the Constitution, Chapter IV.

[2] Randall C. H. Lesaffer, ‘A Schoolmaster Abolishing Homework? Vattel on Peacemaking and Peace Treaties’, in V. Chetail and P. Haggenmacher (eds.), Vattel’s International Law from a XXIst Century Perspective (Leiden: Brill, 2011), p. 353.

[3] Jörg Fisch, Krieg und Frieden im Friedensvertrag (pp. 92-97);  Randall Lesaffer, Peace Treaties and International Law in European History: From the Late Middle Ages to World War One, p. 38.

[4] Fisch, pp. 79 – 81; Lesaffer, p. 39.

[5] Nicolas Offenstadt, Faire la paix au Moyen-Age, (Paris: Odile Jacob, 2005), p. 55.

[6] Quoted by Offenstadt, p. 52

[7] Offenstadt, p. 53

[8] René Girard, Je vois Satan tomber comme l’éclair, Paris: Grasset, 1999.

[9] Offenstadt, p. 57.

[10] Heinhard Steiger, From Paris to Versailles, in Randall Lester, op. cit., p. 84.

[11] Hugo Grotius, The Law of War and Peace (1625), Book 3, Chapter 20, XV.

[12] Emmerich de Vattel, The Law of Nations (1758) Book IV Chapter 2, pars 20, 21.

[13] For the original texts and various contemporary translations, see www.pax-westphalica.de.

[14] Randall C. H. Lesaffer, ‘A Schoolmaster Abolishing Homework? Vattel on Peacemaking and Peace Treaties’, in V. Chetail and P. Haggenmacher (eds.), Vattel’s International Law from a XXIst Century Perspective (Leiden: Brill, 2011), pp. 353-84.

[15] John Laughland: “The crooked timber of reality: Sovereignty, jurisdiction and the confusions of human rights,” The Monist, January 2007, Vol. 90, No. 1.

[16] Randall Lesaffer, op. cit., his own chapter entitled “From Lodi to Westphalia”, p. 40

[17] Steiger, op. cit., pp. 84-85.

 

 

Talk at the thematic debate

“The role of international criminal justice in reconciliation”,

General Assembly, United Nations, New York, 10 April 2013