Possibilities and Challenges:
Some Issues facing the Modern Jurist
Prof. Dr. Tesfatsion Medhanie (University of Bremen, Germany, emeritus)
[Commencement/ Retirement Address, Postgraduate Programme on Euro‐ pean and International Law, Faculty of Law, University of Bremen, Germany, July 2. 2011]
Prof. Dr. Tesfatsion Medhanie (University of Bremen, Germany, emeritus)
[Commencement/ Retirement Address, Postgraduate Programme on Euro‐ pean and International Law, Faculty of Law, University of Bremen, Germany, July 2. 2011]
Extract: ....Of importance to you – young jurists ‐ are such questions as that of
peace, the threat to the rule of law in international relations, terrorism
and human rights.
When I joined the University of Bremen in 1989, it was the end of the Cold War. Hopes were raised that we would enter an era of peace. It was even anticipated that there would be a peace dividend that would result in more resources being available for development and for real human needs. Though some important reforms towards de‐ mocratic governance were undertaken in the former Eastern Euro‐ pean and in the Southern states, there was no basic change as regards war and the former Third World. New bogeymen, including Islamic fundamentalism and terrorism, were found or highlighted to justify continued militarisation and pursuit of aggressive policies here and there.
In spite of this, the world, as represented in the United Nations, con‐ tinued to strive for the observance of international law and entered the new Millennium expressing commitment to the core ideals of the UN Charter. On the 8th of September 2000 the UN General Assembly adopted a resolution issuing what is known as the United Nations Mil‐ lennium Declaration. A comprehensive set of resolutions, the Declara‐ tion stated positions consistent with the core values of the Charter on all important issues. That was how the Millennium began.
On the 11th of September 2001 ‐ only a year after the issuance of the Millennium Declaration ‐ came the ghastly acts of terror in New York,
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Pennsylvania and Washington. As decidedly interpreted by the Bush
administration, the events of 9/11 gave rise to a succession of meas‐
ures countering the commitment expressed in the Millennium Decla‐
ration. Claiming that the US and the rest of the free world were under
attack by an unconventional enemy, Washington proclaimed war on
terror for the execution of which it adopted policies that in effect mili‐
tated against basic principles of international law, and, yes, some core
principles of American constitutional law as well.
Most frightening is the new posture that Washington under Bush adopted as regards international law and the international system. It introduced and applied the dangerous concept of preventive self de‐ fence which sharply counters the pertinent provisions of the Charter and the international jurisprudence on this issue. It undermines the multilateralism which has sustained the international system and the relative peace so far with the UN Security Council having the pivotal role. And it is particularly alarming and ominous to the weak states of the global South, a few of which have already been victimised by the military might of the US and its “willing” partners in the pursuit of interests that are not primarily concerned with democracy and human rights, claims notwithstanding.
When the Obama administration took office in 2009 there were high hopes that it would try to reverse some aspects of George Bush’s leg‐ acy in foreign policy. Today there are different views as to how much has been delivered or even tried. Some say there are “certain varia‐ tions” in the foreign policies of Bush and Obama (Cultural Diplomacy News); others argue that substantively the difference is “very little” especially on such issues as Palestine and Israel (Chomsky). And as regards Libya, the role of the Obama administration is reproached even by those who condemn Moumar Gadafi’s “violence against his own people”. It is viewed as part of an agenda “to impose full control over the countries of North Africa and the Middle East (for) ... mili‐ tary‐strategic and economic interests” (US Peace Council). It is deemed as an aggression undertaken using UN Security Council Resolution 1973 as a cover. According to some renowned legal schol‐ ars, it is also a violation of the US constitution in that the president acted unilaterally ‐ i.e. without congressional endorsement or “sup‐ port” ‐ to involve the country in a war (Bruce Ackerman).
The latest event related to 9/11, which was attributed to Al‐Qaida, was the killing of Osama bin Laden in Abbottabad, Pakistan by the US Navy’s special force, called Navy SEALs. This incident is a vivid illustration of a twofold violation of international law and human
Most frightening is the new posture that Washington under Bush adopted as regards international law and the international system. It introduced and applied the dangerous concept of preventive self de‐ fence which sharply counters the pertinent provisions of the Charter and the international jurisprudence on this issue. It undermines the multilateralism which has sustained the international system and the relative peace so far with the UN Security Council having the pivotal role. And it is particularly alarming and ominous to the weak states of the global South, a few of which have already been victimised by the military might of the US and its “willing” partners in the pursuit of interests that are not primarily concerned with democracy and human rights, claims notwithstanding.
When the Obama administration took office in 2009 there were high hopes that it would try to reverse some aspects of George Bush’s leg‐ acy in foreign policy. Today there are different views as to how much has been delivered or even tried. Some say there are “certain varia‐ tions” in the foreign policies of Bush and Obama (Cultural Diplomacy News); others argue that substantively the difference is “very little” especially on such issues as Palestine and Israel (Chomsky). And as regards Libya, the role of the Obama administration is reproached even by those who condemn Moumar Gadafi’s “violence against his own people”. It is viewed as part of an agenda “to impose full control over the countries of North Africa and the Middle East (for) ... mili‐ tary‐strategic and economic interests” (US Peace Council). It is deemed as an aggression undertaken using UN Security Council Resolution 1973 as a cover. According to some renowned legal schol‐ ars, it is also a violation of the US constitution in that the president acted unilaterally ‐ i.e. without congressional endorsement or “sup‐ port” ‐ to involve the country in a war (Bruce Ackerman).
The latest event related to 9/11, which was attributed to Al‐Qaida, was the killing of Osama bin Laden in Abbottabad, Pakistan by the US Navy’s special force, called Navy SEALs. This incident is a vivid illustration of a twofold violation of international law and human
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rights or constitutional law in pursuit of the war on terror. Many ju‐
rists agree that it was a violation of Pakistan’s sovereignty. They also
concur that it was a total denial of the right to trial and other aspects
of procedural justice to which any human being is entitled regardless
of whether his name is Osama bin Laden.
The killing of Bin Laden was oblivious to the lessons of Nuremburg. Many Americans agreed. An American who is in the best position to opine on such an issue is Benjamin Ferencz, who was a prosecutor at the Nuremburg trials, actually the chief prosecutor at the Ein‐ satzgruppen trial. On the 3rd of May – i.e. just a day after the killing of Bin Laden, Ferencz wrote a letter to The New York Times telling the editor:
“Your superb report ‘Behind the Hunt for Bin Laden’ leaves key questions unanswered. Jubilation over the death of the most hunted mass murderer is understandable, but was it really justifiable self‐ defense, or was it premeditated illegal assassination?
“The Nuremburg trials earned worldwide respect by giving Hitler’s worst henchmen a fair trial so that truth would be revealed and jus‐ tice under law would prevail. Secret non‐judicial decisions based on political or military considerations undermine democracy. The public is entitled to know the complete truth”
Ferencz was quoted in the Guardian online of the 4th of May, as say‐ ing that, “even the head of the Luftwaffe Hermann Göring had a right to trial”
Post 9/11 America is still a leading superpower that poses as a para‐ gon of political and human rights virtues, among others. Hence, its departure from the basics of international law and human rights, as the world knew them since the end of World War 2, is bound to have negative repercussions in the less developed states. In some of his most oft‐quoted lines, the 14th century English poet, Geoffrey Chau‐ cer, had said: “ If gold rusts what will iron do?/ For if a priest be foul in whom we trust/ No wonder that a common man should rust” And so, to‐ day’s dictators and autocrats in Africa and other regions of the South, who are not comfortable with the idea of rule of law and human rights to begin with, are being emboldened by Washington’s actual behaviour to continue doing what they do best – namely oppressing their peoples and perpetuating their illegitimate rule. In fact several of them are already falsely accusing their opponents of terrorism.
The killing of Bin Laden was oblivious to the lessons of Nuremburg. Many Americans agreed. An American who is in the best position to opine on such an issue is Benjamin Ferencz, who was a prosecutor at the Nuremburg trials, actually the chief prosecutor at the Ein‐ satzgruppen trial. On the 3rd of May – i.e. just a day after the killing of Bin Laden, Ferencz wrote a letter to The New York Times telling the editor:
“Your superb report ‘Behind the Hunt for Bin Laden’ leaves key questions unanswered. Jubilation over the death of the most hunted mass murderer is understandable, but was it really justifiable self‐ defense, or was it premeditated illegal assassination?
“The Nuremburg trials earned worldwide respect by giving Hitler’s worst henchmen a fair trial so that truth would be revealed and jus‐ tice under law would prevail. Secret non‐judicial decisions based on political or military considerations undermine democracy. The public is entitled to know the complete truth”
Ferencz was quoted in the Guardian online of the 4th of May, as say‐ ing that, “even the head of the Luftwaffe Hermann Göring had a right to trial”
Post 9/11 America is still a leading superpower that poses as a para‐ gon of political and human rights virtues, among others. Hence, its departure from the basics of international law and human rights, as the world knew them since the end of World War 2, is bound to have negative repercussions in the less developed states. In some of his most oft‐quoted lines, the 14th century English poet, Geoffrey Chau‐ cer, had said: “ If gold rusts what will iron do?/ For if a priest be foul in whom we trust/ No wonder that a common man should rust” And so, to‐ day’s dictators and autocrats in Africa and other regions of the South, who are not comfortable with the idea of rule of law and human rights to begin with, are being emboldened by Washington’s actual behaviour to continue doing what they do best – namely oppressing their peoples and perpetuating their illegitimate rule. In fact several of them are already falsely accusing their opponents of terrorism.
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It is not only the UN Charter that is being challenged by the repercus‐
sions of the war on terror. Several other historic and vital interna‐
tional documents are, including the 1948 Universal Declaration of
Human Rights (UDHR).
Present‐day life necessarily involves encounters with fear generating factors. Many of the factors obtain in the context of the problem of terrorism. Everyone or most people agree that terrorism is a problem that has to be dealt with. The question is how. Renowned jurists are of the view that, in dealing with alleged terrorists, states can resort to the use of force but duly observing the rules of international law. They add that the same states must however “aim at bringing the persons accused of the crimes to justice” (Antonio Cassese: p. 1000)
In the view of many jurists, the quest for or the form of justice should not be limited to the application of force, which is only “a short‐term response”. (Cassese: p. 1000). As Antonio Cassese put it:
“Things must be viewed in a long term perspective. Justice also en‐ compasses social justice, that is eradication of deep social inequalities such as poverty, economic, social and cultural underdevelopment, ignorance, lack of political pluralism and democracy, and so on. It stands to reason that all theses phenomena lie at the root of terrorism and contribute to fuel hatred and bigotry”. (pp. 1000‐1001)
Along these lines, former UN Secretary General, Kofi Annan, explic‐ itly stated “people who are desperate ... become easy recruits for terrorist organisations”. (Quoted in ibid.)
Let there be no doubt that to emphasise the importance of justice is not to discount that of peace. Actually, the two can be said to be sym‐ biotically related in the sense that one cannot be sustained without the other. On this issue, former President of Ireland and former UN High Commissioner for Human Rights, Mary Robinson, reproduces the following citation from Kofi Annan in one of her brilliant lectures
“There are times when we are told that justice must be set aside in the interest of peace. It is true that justice can only be dispensed when the peaceful order of society is secure. But we have come to un‐ derstand that the reverse is also true: without justice, there can be no lasting peace”. (M. Robinson: p. 9)
Many of the factors giving rise to terrorism or providing contexts for its growth and operations are related to the globalisation process as it
Present‐day life necessarily involves encounters with fear generating factors. Many of the factors obtain in the context of the problem of terrorism. Everyone or most people agree that terrorism is a problem that has to be dealt with. The question is how. Renowned jurists are of the view that, in dealing with alleged terrorists, states can resort to the use of force but duly observing the rules of international law. They add that the same states must however “aim at bringing the persons accused of the crimes to justice” (Antonio Cassese: p. 1000)
In the view of many jurists, the quest for or the form of justice should not be limited to the application of force, which is only “a short‐term response”. (Cassese: p. 1000). As Antonio Cassese put it:
“Things must be viewed in a long term perspective. Justice also en‐ compasses social justice, that is eradication of deep social inequalities such as poverty, economic, social and cultural underdevelopment, ignorance, lack of political pluralism and democracy, and so on. It stands to reason that all theses phenomena lie at the root of terrorism and contribute to fuel hatred and bigotry”. (pp. 1000‐1001)
Along these lines, former UN Secretary General, Kofi Annan, explic‐ itly stated “people who are desperate ... become easy recruits for terrorist organisations”. (Quoted in ibid.)
Let there be no doubt that to emphasise the importance of justice is not to discount that of peace. Actually, the two can be said to be sym‐ biotically related in the sense that one cannot be sustained without the other. On this issue, former President of Ireland and former UN High Commissioner for Human Rights, Mary Robinson, reproduces the following citation from Kofi Annan in one of her brilliant lectures
“There are times when we are told that justice must be set aside in the interest of peace. It is true that justice can only be dispensed when the peaceful order of society is secure. But we have come to un‐ derstand that the reverse is also true: without justice, there can be no lasting peace”. (M. Robinson: p. 9)
Many of the factors giving rise to terrorism or providing contexts for its growth and operations are related to the globalisation process as it
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presently obtains. What we have now is “globalisation of market‐
based, competitive and neo‐liberal dominance” (Shiro Okubo: p.2).
Evidently, this globalisation has very much integrated the world; it
has shortened distances, brought peoples closer, accelerated exchange
of goods and services. In this sense, it has furnished “various benefits
and much convenience to the world” (p. 2) On the other hand how‐
ever, due to the character of its guiding ideology and the values it is
founded on, it has immensely increased the disparities between the
rich and the poor both within and among nations; the developed and
developing countries have actually become worlds apart. (p. 2).
Moreover, this globalisation serves to promote illicit activities and
facilitates the spread of disasters and calamities.
It is incontrovertible that globalisation has virtually limitless possi‐ bilities to improve the quality of life for all peoples. Indeed, it has the potential to strengthen peace and make the world a safer place. How‐ ever, if globalisation is to realise its potential and truly serve human needs – i.e. if globalisation is to be in the service of justice and peace, its ideological and ethical contexts have to be adjusted accordingly.
There is something that is absurdly contradictory about globalisation today. On the one hand, due to globalisation, we are linked and have become integrated to the point of becoming practically one world. On the other hand, owing to the same globalisation, we are increasingly drifting apart as regards access to resources, wealth, services and other goods that civilisation can afford. In plain words, we have be‐ come one world in which at the same time we are becoming increas‐ ingly differentiated in terms of the quality of life. The agenda at hand should be to devise and apply reforms necessary to halt and reverse this differentiation. Mary Robinson expressed this point thus:
“There are not two worlds – rich and poor. There is only one. It is for us to decide if we are committed to working together to shape it into one which is based on human rights and social justice as the best hope of achieving peace and security for all people”. (p. 26)
There are two options: either we keep the current system and con‐ tinue on the road to disaster, or we restructure the globalisation proc‐ ess to serve human needs and ensure the survival of humanity. The rational choice is to reform the context of globalisation along the lines of what Mary Robinson calls “Ethical Globalisation”, a process in which policies about world economy are informed by and effectively reflect “values” of “human rights” and social justice. (p. 24)
It is incontrovertible that globalisation has virtually limitless possi‐ bilities to improve the quality of life for all peoples. Indeed, it has the potential to strengthen peace and make the world a safer place. How‐ ever, if globalisation is to realise its potential and truly serve human needs – i.e. if globalisation is to be in the service of justice and peace, its ideological and ethical contexts have to be adjusted accordingly.
There is something that is absurdly contradictory about globalisation today. On the one hand, due to globalisation, we are linked and have become integrated to the point of becoming practically one world. On the other hand, owing to the same globalisation, we are increasingly drifting apart as regards access to resources, wealth, services and other goods that civilisation can afford. In plain words, we have be‐ come one world in which at the same time we are becoming increas‐ ingly differentiated in terms of the quality of life. The agenda at hand should be to devise and apply reforms necessary to halt and reverse this differentiation. Mary Robinson expressed this point thus:
“There are not two worlds – rich and poor. There is only one. It is for us to decide if we are committed to working together to shape it into one which is based on human rights and social justice as the best hope of achieving peace and security for all people”. (p. 26)
There are two options: either we keep the current system and con‐ tinue on the road to disaster, or we restructure the globalisation proc‐ ess to serve human needs and ensure the survival of humanity. The rational choice is to reform the context of globalisation along the lines of what Mary Robinson calls “Ethical Globalisation”, a process in which policies about world economy are informed by and effectively reflect “values” of “human rights” and social justice. (p. 24)
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In conclusion let me reiterate a few things. I am talking to you as
someone who has already lived most of his life. You, young jurists,
are about to begin professional life. You are the jurists of the 21st cen‐
tury. It is obvious that you – relative to people like me – have more
stakes in the issues raised. You will have to deal with them so as to
make a living in peace and with freedom from anxiety.
As jurists, you have the responsibility to stand for the rule of law in international relations and to be vigilant in the service of justice. And the nature of the world situation today is such that it is only when you are engaged on the side of global justice that you can ensure se‐ curity for everyone including yourselves.
I would like to stress here that I am talking about justice in the genu‐ ine sense; about authentic justice as some human rights activists call it. I am stressing this point because in today’s complex world we see injustice being carried out in so many refined ways that convey ap‐ pearances of justice. Many policies are fashioned and applied osten‐ sibly to serve justice while actually they are only veiled schemes to maintain unfair practices and situations.
In order to serve authentic justice, as distinguished from the spurious appearance of it, it is not enough to be well‐informed, disciplined and hard‐working even though all this is important. One needs courage too. One has to make constant and conscious efforts not to succumb to the fear that threatens to overwhelm us these days. Besides, it is important to resist the temptation to make it disregarding societal and global concerns. Apathy as regards issues of global justice is not wise; in the final analysis, it may not even be self‐serving really. The same is true about the pursuit of narrow careerism that is indifferent to issues of human rights and peace, a careerism that is insensitive to the plight of the oppressed and the subaltern. Stephane Hessel, who wrote a best seller – Time for outrage – last year, had fought in the 2nd World War during which he was sent to the concentration camps. Following the end of the war, he was involved in drafting the UDHR and is still engaged in the defense of its ideals. At the age of 93, he is certainly in a position to advise us all. And so I close my address with his words of advice to young people:
“I want you, each and every one of you, to have a reason to be out‐ raged. This is precious. When something outrages you, as Nazism did to me, that is when you become a militant, strong and engaged. You join the movement of history, and the great current of history continues to flow only thanks to each and every one of us. History’s
As jurists, you have the responsibility to stand for the rule of law in international relations and to be vigilant in the service of justice. And the nature of the world situation today is such that it is only when you are engaged on the side of global justice that you can ensure se‐ curity for everyone including yourselves.
I would like to stress here that I am talking about justice in the genu‐ ine sense; about authentic justice as some human rights activists call it. I am stressing this point because in today’s complex world we see injustice being carried out in so many refined ways that convey ap‐ pearances of justice. Many policies are fashioned and applied osten‐ sibly to serve justice while actually they are only veiled schemes to maintain unfair practices and situations.
In order to serve authentic justice, as distinguished from the spurious appearance of it, it is not enough to be well‐informed, disciplined and hard‐working even though all this is important. One needs courage too. One has to make constant and conscious efforts not to succumb to the fear that threatens to overwhelm us these days. Besides, it is important to resist the temptation to make it disregarding societal and global concerns. Apathy as regards issues of global justice is not wise; in the final analysis, it may not even be self‐serving really. The same is true about the pursuit of narrow careerism that is indifferent to issues of human rights and peace, a careerism that is insensitive to the plight of the oppressed and the subaltern. Stephane Hessel, who wrote a best seller – Time for outrage – last year, had fought in the 2nd World War during which he was sent to the concentration camps. Following the end of the war, he was involved in drafting the UDHR and is still engaged in the defense of its ideals. At the age of 93, he is certainly in a position to advise us all. And so I close my address with his words of advice to young people:
“I want you, each and every one of you, to have a reason to be out‐ raged. This is precious. When something outrages you, as Nazism did to me, that is when you become a militant, strong and engaged. You join the movement of history, and the great current of history continues to flow only thanks to each and every one of us. History’s
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direction is towards more justice and more freedom – though not the
unbridled freedom of the fox in a henhouse. The rights set forth in the
Universal Declaration of Human Rights in 1948 are indeed univer‐
sal. When you encounter someone who lacks those rights, have sym‐
pathy and help him or her to achieve them”. (Hessel: p. 23)
Thank you, Ladies and Gentlemen!
And you, members of the graduating class, Good Bye and Good Luck!
References
Bruce Ackerman, “Obama’s Unconstitutional war”, Foreign Policy, (online), March 24, 2011.
Antonio Cassese, “Terrorism is also disrupting some crucial legal categories of International Law”, European Journal of International law, vol. 12, no. 5 (2001).
Mary Robinson, “The Fifth Annual Grotius lecture – Shaping Global‐ ization: The Role of Human Rights”, American University International Law Review, vol. 19, no. 1, (2003).
Shiro Okubu, “’Freedom from Fear and want’ and ‘the Right to Live in Peace’, and ‘Human Security’”, Ritsumeikan Internatuional Affairs, vol 5, (2007).
Benjamin Ferencz,, “Letter to N. Y. Times re: Bin Laden’s killing”, The New York Times, May 3, 2011.
Ewen MacAskill et. al., “US confirms it will not release Osama bin Laden death photo”, www.guardian.co.uk, 4 May 2011
United Nations General Assembly, “United Nations Millennium Decla‐ ration”, (A/res/55/2), (September 2000).
Stéphane Hessel, Time for Outrage, (London: Charles Glass Books, 2011).
Thank you, Ladies and Gentlemen!
And you, members of the graduating class, Good Bye and Good Luck!
References
Bruce Ackerman, “Obama’s Unconstitutional war”, Foreign Policy, (online), March 24, 2011.
Antonio Cassese, “Terrorism is also disrupting some crucial legal categories of International Law”, European Journal of International law, vol. 12, no. 5 (2001).
Mary Robinson, “The Fifth Annual Grotius lecture – Shaping Global‐ ization: The Role of Human Rights”, American University International Law Review, vol. 19, no. 1, (2003).
Shiro Okubu, “’Freedom from Fear and want’ and ‘the Right to Live in Peace’, and ‘Human Security’”, Ritsumeikan Internatuional Affairs, vol 5, (2007).
Benjamin Ferencz,, “Letter to N. Y. Times re: Bin Laden’s killing”, The New York Times, May 3, 2011.
Ewen MacAskill et. al., “US confirms it will not release Osama bin Laden death photo”, www.guardian.co.uk, 4 May 2011
United Nations General Assembly, “United Nations Millennium Decla‐ ration”, (A/res/55/2), (September 2000).
Stéphane Hessel, Time for Outrage, (London: Charles Glass Books, 2011).
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Noam Chomsky, “’Little difference’ between Obama, Bush in sub‐
stance”, (interviewed by Richard Hall), The Daily Star, June 24, 2009,
(available online).
US Peace Council, “The US Peace Council demands an immediate end to the Imperialist war of Aggression against Libya”, in www.uspeacecouncil.org
Blogsphere Team of the Institute for Cultural Diplomacy, “Differ‐ ences between Obama and Bush foreign policy”, www.differencebetween.net, June 23, 2011.
US Peace Council, “The US Peace Council demands an immediate end to the Imperialist war of Aggression against Libya”, in www.uspeacecouncil.org
Blogsphere Team of the Institute for Cultural Diplomacy, “Differ‐ ences between Obama and Bush foreign policy”, www.differencebetween.net, June 23, 2011.
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