Cherif Bassiouni: we find ourselves on a radically different path than the one chosen in 1948

Syracuse, May 29, 2017: Speech by Prof. Cherif Bassiouni, Honorary President of the Syracuse International Institute and President of the Scientific Council to the GCRL

I wish to raise a number of issues, unrelated one from the other, but with an overall collective impact.

The first issue I would like to raise is the fact that we find ourselves on a radically different path than the one chosen in 1948. At that time, the world paved the road for human rights, for individual responsibility of the various actors who violated those rights, for the collective protection against genocide and crimes against humanity. The fundamental rights set in the Universal Declaration of Human Rights of 1948 were extended to all peoples of the world.

This opened up a whole new road. That Declaration, which appeared as a mere statement without any political power, gave birth to two very important Conventions: the International Convention on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights. These two fundamental Covenants include all these rights or these categories of rights for the protection of human rights or the rights of the human individual.

However, it must be noted that, with the exception of a few, none of these Conventions and those that followed them have a mandatory character for States, and from 1948 until today various countries continue to discuss the mandatory nature of these International Conventions. Nonetheless, as we have seen, each of these themes, as the one we face today, have been first conceived in a statement. It all started with setting a principle. As Lawyer Paolo Reale said, for some particualr issues a number of specific conventions were developed, such as the Convention on the Protection of Women’s and Children’s Rights, on Non-Discrimination, etc.

Between 1948 and today, over three hundred International Conventions on human rights have been elaborated. Often these Conventions clarified general principles in more specific terms, and only in very few cases we changed gear and passed from a prescriptive text, in terms of legal obligation, to a prohibitive one, including criminal sentences. The latter has been the case for the Convention against Torture.

We have no other Human Rights Convention that criminalises activities against its prescriptions. Of course, the definition of crimes against humanity is a definition that applies to serious collective violations that result from State policies. However, I want to emphasize the fact that notwithstanding the concept of crimes against humanity has been inserted in the Statute of the International Criminal Court, there is no International Convention on crimes against humanity. You can imagine how this came about when considering it was elaborated in 1945 when there was little will to acknowledge that crimes against humanity truly constituted an international crime.

From then on, we have seen not less than eleven different elaborations. The Statute of the Yugoslavia Ad Hoc Court defined crimes against humanity in a certain way, the Ruanda Ad Hoc Court in another, the International Criminal Court in yet another manner. Eight Ad Hoc Tribunals, each with a different definition. At this point one has to wonder whether all this is really due to a lack of competence of all diplomats responsible for this sector over the course of the past 50 years, or whether there is another reason: simple realpolitik. State interest. States have no interest whatsoever in promulgating the right to know. The right to know would not have allowed the United States to invade Iraq in 2003, because the information presented to the United Nations were false. Therefore, the acquisition of the right to know does not so much concern the right to know what is known or what is true, but the right to know what is being hidden, what is not true, or what is being purposefully fabricated.

Take the war in Libya for example. The United States faced a political problem regarding their participation in the NATO bombardements in Libya without obtaining Congress permission. Obama’s response was: “Okay, we will not participate”. However, all NATO aircraft, spare parts and bombs came from the United States. How can one not participate on the one hand, and provide all this material on the other?

Someone found a remedy to this dilemma: “Why don’t we take pieces that are no longer usable? – because all war material has an expiration date, after which it is no longer valid; this goes for bullets and bombs as well – If we give them those, we do not need congressional permission”. And that is where so much of the materials used by the British and the French in the NATO bombardements came from.

When I was Chair of the United Nations Inquiry Commission on Libya, we discovered an out-of-the-box bomb that destroyed a private appartment. We found a piece of that bomb with a valid until sign, to a date from two years before. This obviously means that the bomb guidance system was over due and that when the bomb was launched on a military target, the expired guidance system deviated to a civilian one.

It is clear that in the case such information, as well as in the case of many other types of information, especially those regarding the use of drones in the new era of cyber-crime, knowledge does not only regard that which we know, but also what we don’t know. It is obvious that Governments know a lot about the use of cyber-crime, but they are not telling. This is clear from the recent example of British Airways, constrained to cancel all its flights due to the cyber-attack it suffered.

Another issue, considered by few and which the right to know should raise, is the fact that we are entering an era of new generation Automated Weapon Systems (ATS). These ATS are somewhat similar to drones, to cyber-crime, etc.: we see an attack from one side against another, without knowing from where and who launched it. Therefore, all assumptions on individual criminal liability as an element of deterrence have vanished.

One final remark: unfortunately I think that the decision-making power that impacts all societies in the world is no longer controlled by States, but by big international companies beyond State control. The example the case of a US oil company whose President became Foreign Minister because he expects to close a deal between his former company and a Russian counterpart for the development of oil extraction in the Arctic says it all. It is no longer the State that controls, it is the multinational company. How many multinationals are under national or international control? Show me one International Convention that controls these actors at the international level.

It are therefore these actors that control politics and States hold information on these activities, but have chosen not to share them with the public as they share a mutual interest with these companies: tit for that, and a guarantee to remain in power. This shows the weakness of the democratic concept in the recent past. A concept that has been overcome, also due to a lack of public interest on which it depends. Let’s say that the post-millenium generation is a generation of the immediate, of personal satisfaction; it is no longer a society primarily interested in the collective and in values. In fact, there is very little talk of values and principles. And that is why we need to think about the future: about how multinationals have found ways to evade international and State control; how they have become equals of the State.

We are living at a time when all civil society organizations in the world, from journalists to activists in human rights, must find new structures to strengthen their ability to cope with multinational companies that exercise a power that reaches beyond the State on the hand, and with States whose powers are wavering due to a lack of public interest on the other.

Suffice it to look at voting turn-outs in various countries: if maximums are around 50 to 60%, something important is being said. When one looks at the literature read by 20 to 30-years old, it is clear that it has very little to do with human rights issues, collective rights, international criminal responsibility, and so on.

Therefore, this (recognition of the right to know, ndr) is an important step forward as it jets the basis for a principle. The battle will be long, because every step will be countered by States. To States realpolitik means they can choose what information to share with the public and what information not to share. Getting to the point where one can force the State to disclose those informations it does not wish to share is close to impossible, because there is no political counter-part keen on stimulating, motivating or enforcing such a right. But, of course, we have no choice. We cannot remain indifferent. Just remember what indifference has led to in the past: in 1939, a Holocaust of 6 million Jews and 20 million Slavs. Largely due to indifference. Just look at the war in Syria: nearly 500.000 people killed. But the world public opinion does not react. It does not ask whether there is a case for criminal responsibility of the Russians and the Iranians, the main responsibles for Assad’s regime.

Thank you very much.

Watch the video on the website of Radio Radicale

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