International law is by nature multilateral.  Its ontology is universal and cannot be interpreted or applied selectively, today this way, tomorrow somewhat differently — or not at all.  In some cases violations of international law are loudly denounced by the international community; in other circumstances, comparable violations are followed by a deafening silence.  Indeed, the “crime of silence” implies tacit consent.  Qui tacet consentire videtur.  Individuals and States can thereby become complicit in the crime.  If not legally, certainly morally.

Experience in the United Nations and other international institutions illustrates how the vast body of international law with all of its treaties and protocols suffers from an acute bout of double standards, both in the interpretation and application of norms.  As politicians and journalists invoke international law à la carte, widespread cynicism sets in, resulting in a significant loss of the authority and credibility of the institutions

The UN Charter binds all States and peoples.  International treaties, whether bilateral or multilateral, bind the States parties and should be applied in good faith according to the principle pacta sunt servanda (Vienna Convention on the Law of Treaties, article 26[1]).  Whereas human rights are juridical, justiciable and, in principle, enforceable, the United Nations General Assembly and the Human Rights Council have a track record of applying international law selectively. Debates in the GA and HR Council are characterized by political instrumentalization of the facts and by what I would call “fake law”, since many diplomats simply invent “the law” as they go along. Enforcement becomes a farce, when it is done in the service of hegemons and not of humanity at large. When judgments and advisory opinions of the International Court of Justice are not enforced, the “rule of law” itself suffers.

We can and should demand professionalism and objectivity from the institutions established to protect our rights. These institutions should ensure accountability for violations of international law by governments and non-State actors, including transnational corporations.  The General Assembly and Human Rights Council should take appropriate measures to ensure that recourse and appropriate remedies for violations are made available to the victims.

Priorities are crucial in all human endeavors. What is on the agenda of the GA and HR Council? What is being discussed, what is being deliberately ignored? It is up to us to ensure that the institutions function according to their terms of reference, that there are checks and balances, that political action is ethical, not amoral, short-sighted and utilitarian. At least in democracies the electorate can demand transparency, ethics and justice.

Responsibility to Protect

If the “doctrine” of Responsibility to Protect (R2P) means anything (GA Resolution 60/1 of 24 October 2005, paragraphs 138-9), then it should have been invoked decades ago in the context of the Israeli denial of the right of self-determination of the Palestinian People, in the context of mass evictions, arrests, expulsions and ethnic cleansing, the Nakba.  R2P should have prevented the tragedy unfolding since 2020 in the Armenian Republic of Artsakh, better known as Nagorno Karabakh.  It should have been applied on behalf of the Sahraouis of Western Sahara, the Igbos and Ogonis of Biafra, the Tamils of Sri Lanka, the Kurds of Turkey, Iraq and Syria.

Without a doubt, many politicians today deserve being indicted and prosecuted by the International Criminal Court, surely those guilty of the crimes of aggression, war crimes and crimes against humanity in Afghanistan and Iraq since 2001.  Notwithstanding legal briefs filed with the ICC Prosecutor since 2004, no one was ever indicted. An investigation started by Chief Prosecutor Fatou Bensouda[2] was terminated by her successor Karim Khan[3].  Over a period of 23 years since its establishment in 2002, the ICC has displayed a certain bias, indicted Africans, and enemies of the US and EU, including Vladimir Putin[4]. That is why it was comparable to an earthquake when Prosecutor Khan asked for arrest warrants against Israeli Prime Minister Netanyahu[5] and Hamas leaders.  This may eventually save the ICC from total collapse of its tenuous credibility.

Self-determination of peoples

A Special Session of the Human Rights Council on the issue of the self-determination of peoples would be appropriate, since the right of self-determination of peoples constitutes a jus cogens norm of international law, and thousands of human beings in all continents are being denied this right and many are killed in the attempt to claim it.  It must be well understood that the right of self-determination laid down in Articles 1 and 55 of the UN Charter, in Chapters XI and XII of the Charter, in common article 1 of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights is not limited to decolonization, but extends the right to autonomy and/or independence to all peoples.  States are not only obliged to refrain from hindering this right; they have a duty to  pro-actively implement it.  Who are the rights holders?  As I proposed in my 2013 report to the General Assembly[6], the United Nations should accept petitions from all peoples deprived of self-determination, those living under foreign occupation, those enduring Apartheid, etc.  Among the many aspirants to self-determination we recognize the French of Quebec, the Scots, the Catalans, the Corsicans, the South Tiroleans, the Kurds, the West Papuans, the Rapa Nui, the native population of Hawaii, the indigenous peoples of Alaska and those living in “reservations” in the United States, the Mapuche of Chile and Argentina, the Igbos of Biafra, the Bubis of Equatorial Guinea, the Luchu of Okinawa (Ryukyu islands illegally annexed by Japan in 1880).

Progress and Retrogression

Progress and retrogression characterize the history of international law and human rights. Today the world is in chaos, but not more so than in the 18th. 19th and 20th centuries. At least we are not burning witches or massacring indigenous Hopi, Iroquois, Mohawks, Sioux, Taínos, Arawaks, Quechua — the slave trade is abolished, colonialism is drastically reduced. We have seen a phenomenal codification of legal norms, the UN Charter, the UDHR, the establishment of regional human rights courts. We hail the growing recognition of the rights of half the population of the planet – women, the measures taken on behalf of persons with disabilities. We welcome the gradual abolition of the cruelty of “capital punishment”. Yet, there is also significant retrogression in many fields, including the erosion of the concept of Peace as a Human Right, the backsliding from General Assembly Resolution 39/11 of 1984. Today there is scarce protection of the right to know, the right to access truthful information, the right to freedom of opinion and expression. We see censorship by governments and the private sector, the blocking of RT and Sputnik by the EU, the Orwellian new Digital Services Act, the brazen indoctrination practiced by the media, the excesses of “cancel culture”, the epidemic of self-censorship, the social acceptance of Islamophobia, Russophobia and Sinophobia. the crimes committed against 25 million victims of human trafficking, including 3.4 million children. Serious retrogression is evident in the weakened protection of family life and family values, the attacks on the concept of the family and parental authority, the denigration and ridicule of religious beliefs.

Retrogression is also apparent in the practices of institutions established to protect our rights. Many institutions have been hijacked for geopolitical and ideological purposes. Quis custodiet ipsos custodes? (Iuvenalis, 6^th Satire, verses 347-48) Who guards over the guardians?[7] Institutions such as the UN Human Rights Council, ECHR, IACHR, OPCW often let themselves be hijacked by major powers and thus betray their mandates, weaponizing human rights instead of devising preventive strategies and mechanisms to promote and protect human dignity, to ensure that there are recourse and adequate remedies for the victims. Only we can be the guardians. While we realize that governments and the media lie to us, that they suppress crucial information, we — as citizens of democratic countries — must push back and reclaim democracy. We do not need any Ministry of Truth as in 1984.  But are we not already living in the dystopia of Huxley’s Brave New World ?

Prevention or Punishment?

Among the gravest instances of retrogression is the Western obsession with punishment, the primitive lex talionis, that self-righteousness that invites us to lapidate the adulteress[8], the arrogance of “lawfare” against dissidents, the persecution of whistleblowers.

If Christianity taught us anything, it is that we must forgive to be forgiven: et dimite nobis debita nostra sicut et nos dimitimus debitoribus nostris[9]. Yet, the politicians and some mainstream ngo’s have transformed the notion of “amnesty”[10] into a curse word, as they have transformed “appeasement”[11] into an insult, although in the nuclear age the only rational approach in international affairs is conflict-prevention through diplomacy, give and take, quid-pro-quo, compromise.

Punishment is always after the fact, ex post facto.  Punishment does not make the victims whole.  Very often violations of international law and human rights are irreparable.  What is crucial is to prevent violations of international law and human rights, to set up mechanisms of “early warning” so as to address grievances before they degenerate into violence and grow into a threat to the peace and security of mankind.  Essential to conflict-prevention is confidence-building, engaging in dialogue, building bridges, creating the conditions for peace.  Si vis pacem, para pacem (if we want peace, we must proactively appease). Amnesties are not bad per se. Sometimes amnesties can pave the way to reconciliation. Revenge is incompatible with the acquis of civilization. Punishment is not a wise or civilized answer to problems.

Hope for the Future

Is there hope for humanity?  Of course there is!  It is in our hands to demand pro-active peace making from our governments, to demand more professionalism and objectivity from the United Nations and other international bodies.

Knowledge of the root causes of conflict facilitates the prevention or war. We need to reject provocations and escalations.  We need to develop the faculty of self-criticism so as to correct our own mistakes before we go around pointing fingers at others.  We must practice international solidarity, applying international law in good faith and not à la carte.

Our resolution for 2025 should be to continue waging peace, speaking truth to power, strengthening the United Nations Charter as a world constitution, rediscovering the spirituality of the Universal Declaration of Human Rights.

Notes.

[1] https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

[2] https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-following-appeals-chambers-decision-authorising

[3] https://www.aljazeera.com/news/2021/12/6/icc-prosecutor-defends-dropping-us-from-afghan-investigation

[4] https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and

[5] https://news.un.org/en/story/2024/11/1157286

[6] https://documents.un.org/doc/undoc/gen/n13/421/23/pdf/n1342123.pdf

[7] https://onlinelibrary.wiley.com/doi/10.1111/ajes.12542

[8] John 8, 1-11.  https://www.biblegateway.com/passage/?search=John%208:1-11&version=NLT

[9] Mathew 6, 9-13  https://www.biblegateway.com/passage/?search=Matthew%206%3A5-15&version=ESV;NIV

[10] Alfred de Zayas, “Amnesty Clause” and “Westphalia, Peace of” in R. Bernhardt (ed.) Encyclopedia of Public International Law, North Holland, Amsterdam 2000.

[11] https://www.counterpunch.org/2024/08/09/appeasement-reconsidered/

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