by Gwynne Dyer
“My husband has been killed by the Hague tribunal,” his widow, Mirjana Markovic, told Belgrade’s Večernje Novosti newspaper. “They did it because they were in trouble. Only thirty-seven hours remained, and they did not have anything to convict him.” But those “thirty-seven hours” only mean that Miloševic had already used up most of the 360 hours allotted to him to present his defence. That doesn’t seem an unreasonably brief amount of time.
The court had no motive to want him dead, for it had already heard enough evidence from his former colleagues to ensure a conviction. The real controversy is about the inordinate length of the trial. Five years was a very long time—and, in the end, Miloševic died before he could be convicted.
The mills of international justice grind exceedingly slowly because the trials of senior political figures for crimes like genocide involve huge numbers of charges and mountains of evidence. In Miloševic’s case, the delays were compounded because the court let him conduct his own defence. But what was the alternative? Force him to accept court-appointed lawyers, pick a few of the simplest charges, and push the case through in six months?
That would have given the court no more credibility than the one now trying Saddam Hussein in Iraq. The obscure charge on which Saddam is being tried was chosen not for efficiency’s sake, but because to try him for any of his really big crimes, like the wars of aggression against Iran and Kuwait and the massacres that accompanied them, would have implicated the United States in one way or another. The point of that trial is to kill Saddam without delving into his complex relationship with Washington over the years.
The goal of genuine international courts like the one in The Hague is not to save us from mythical monsters by stringing them up: by the time they reach court, they are no longer dangerous. It is to expose in slow and painful detail how amoral political opportunism can lead quite ordinary people like Slobodan Milošević to commit appalling crimes in the name of the state.
In Milošević’s case, 95 percent of that job had been completed before he died. A conviction would have been nice, but it would not have changed the minds of his diehard supporters, and the rest of us already knew he was guilty of monstrous crimes. The point of the trial was to document and record the detailed evidence of those crimes, and it had already succeeded.
Building the international rule of law has been the most important political enterprise of the past century, but the diplomats and lawyers who do that work don’t always grasp the reality of what they are trying to regulate. The Law of the Sea, for example …
November 21, 2008
PIRATES OF THE HORN
On one side are eight navies, the world’s largest shipping companies, the rich Gulf states that need to get their oil to market, and the great powers, whose commerce depends heavily on the shipping lanes around the Horn of Africa. On the other side are a few thousand Somali pirates in small boats with light weapons. So why are the pirates winning?
Not only are they winning, but the forces of law and order are almost completely paralyzed. The pirates have seized dozen of ships, extracting ransoms that total about thirty million dollars this year alone. Fourteen ships, including a Saudi Arabian supertanker carrying two million barrels of oil, are still anchored off the Somali coast awaiting ransom.
Yet with the honourable exception of the Indians and the French, nobody has used force against the pirates of the Horn. The Danish navy arrested ten of them in September, but turned them loose again because the government believed that it did not have jurisdiction to prosecute them. The British Foreign Office has advised the Royal Navy not to detain pirates of certain nationalities (including Somali) as they might claim asylum in Britain under human-rights laws.
As the boldness of the pirate attacks increases, the international response is to retreat. Major shipping companies that transport oil out of the Gulf have ordered their tankers to stop using the Suez Canal route, which takes them past the northern Somali coast. Instead, they are going all the way around southern Africa, adding two weeks to the voyage at a cost of twenty to thirty thousand dollars a day.
What to do? Most pundits declare that this problem cannot be solved at sea. Instead, it will only end when order has been restored in Somalia, the pirates’ base. Since Somalia is currently divided between three different governments, only one of which (Somaliland) exercises even a modest degree of control over its territory, this seems a tall order.
The last major international attempt to take Somalia out of the hands of the warlords and their militias was in 1992–93. It ended with the hasty retreat of American troops from the country, followed by all the United Nations forces as well. If a call for volunteers to repeat that effort were to be sent out to UN member states today, an epidemic of diplomatic deafness would sweep the world.
If we must wait for a central government with real authority to take charge in Somalia before the pirate threat in the seas around the Horn of Africa is brought under control, we will be waiting a long time. Why not solve the problem at sea, where clan militias and suicide bombers are not a problem? Why not just capture or kill enough of the pirates to persuade the others to choose a different career?
Don’t believe the nonsense about how it’s too big an ocean area to monitor and control effectively. This is one of the tasks that great-power navies are designed to perform, and they have the right equipment to do it: satellite surveillance, maritime patrol aircraft and warships with powerful radars and lethal weapons. Moreover, the navies are usually looking for work, since there is not that much call for their services in peacetime.
The problem is the whole body of international law and human-rights legislation that has emerged in recent decades which has made the traditional remedies for piracy very hard to apply. The United Nations Convention on the Law of the Sea, for example, requires a warship to send a boarding party onto any suspected pirate vessel to confirm its criminal intent. Until that has been done, the warship may not open fire.
The colloquial term for the members of any such boarding party is “hostages.” Back in the early eighteenth century, when the pirates of the Caribbean—the real pirates of the Caribbean, not Johnny Depp and Keith Richards—were finally being eliminated by the navies of the big European powers, there was no such foolishness. Pirates were defined as “enemies of all mankind,” and there was a right of “universal jurisdiction” against them.
Any country could arrest pirates from any other country (or countries) and try them for their crimes. If they were captured in battle, they were even liable to summary execution. We don’t need to do that, but killing them if they resist arrest? It shouldn’t be a problem.
There was a reason why pirates were defined as “enemies of all mankind.” The sea is an alien environment, a place where people die very quickly if things go wrong. Those who prey on other people in this environment have very little call on our sympathy. So while it is not the eighteenth century anymore, a UN Security Council resolution decreeing universal jurisdiction would certainly help.
Suppose that such a resolution were passed, declaring that any nonmilitary vessels carrying armed men within five hundred kilometres of the Somali coast would be subject to arrest. If they did not submit when challenged, they would be sunk without further discussion. Do that a couple of times—as the Indian warship INS Tabar did last week—and the pirate threat drops away very fast.
Has the UN got the spine to declare those rules for the Gulf of Aden and the oceans bordering East Africa? Perhaps. It has just given the Indian navy the right of “hot pursuit” of suspected pirate vessels into Somali territorial waters, but it needs to go a good deal further. This thing can be stopped, with very little loss of life, if we just change the rules of engagement.
The law cannot get too far ahead of public opinion in any country, but public opinion is not static. It has changed on issues of sovereignty and international law, and it is also changing on questions related to human rights. Get past the legalese, and the basic assumption i
s that everybody in the world has equal rights, at every level from the local to the global.
July 3, 2009
DEAD IMPERIALISTS AND SECTION 377
It is forty-two years since homosexual acts were legalized in Britain (by a Labour government, of course), and things have moved on a lot since then. The current Conservative leader, David Cameron, who will almost certainly be prime minister within a year, declared this week that just as his party gave Britain its first woman prime minister (Margaret Thatcher), so “we are bound to have the first black prime minister and the first gay prime minister.”
That remains to be seen, but things are moving on in the rest of the world, too. In India, they have finally done what the British did in 1967 and legalized homosexuality. But then, it was the British who criminalized same-sex relations in India in the first place.
For a century and a half, Section 377 of the Indian penal code, originally imposed by the country’s British rulers, prohibited “carnal intercourse against the order of nature with any man, woman or animal.” Nobody had gone to jail for breaking that law for years, but it made life a nightmare for Indian gays and lesbians. Corrupt police all over the country regularly used it as a pretext to shake them down for bribes, beat them up, and even rape them.
Now Section 377 is gone. On July 2, the Delhi High Court handed down a 105-page decision that said: “The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone … Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized.”
It is no longer against the law to be gay in the world’s second biggest country, and the best thing about the ruling was the reason the judges gave for their decision. They didn’t let themselves be drawn into any foolish arguments about whether this or that kind of sexual behaviour was good or bad. They simply said that Section 377 was at odds with the equal-opportunity provisions in the Indian constitution.
It’s a useful reminder of what the politics of the past two centuries has really been about: the ever-widening application of the principle of equality until it includes every citizen of a particular country, even all of the people in the world. The very first people in the Western world to abolish discrimination against homosexuals were the French revolutionaries in 1791, and wherever the revolutionary armies went, the new policy went with them.
But the French Revolution was ultimately crushed, and during the nineteenth century, when European empires ruled almost the entire world, Europe’s own anti-gay laws were extended to most of the imperial possessions in Asia and Africa. Even a country like India, with its long tradition of tolerance for a wide variety of sexual preferences and practices, was forced into the same anti-gay legal regime.
Now it is emerging from that long darkness, only a few decades after Europe itself did. Moreover, the Delhi High Court has shown a clear understanding of what is at stake: not just sexual practices but human rights in general. It would have made precisely the same decision, on exactly the same legal principles, if it were dealing with caste, gender or racial discrimination.
Creating legal systems that genuinely respect human rights is a huge undertaking, and it may be another century before all people everywhere live under such legal regimes. It may take even longer before the police everywhere respect the law, and private citizens everywhere have really accepted the notion of equal rights for people who are different. But the lives of millions of people are changing for the better, and that matters.
Half a century after the collapse of the European empires, almost all the former colonial territories in Asia, apart from the Muslim countries, have revoked the laws that discriminated against homosexuals. Indeed, the only remaining bastions of discrimination are the ex-imperial territories of Africa (with the shining exception of South Africa), most of the smaller Caribbean islands, and most Muslim countries (with the shining exception of Turkey).
Since China also legalized homosexuality twelve years ago, we have now arrived at a situation where at least three-quarters of the world’s people live in places where the law no longer criminalizes gays. It shouldn’t have taken so long, and it should have been less of a cause for wonderment when it finally arrived, but this qualifies as real progress on human rights.
It’s not over yet in India. The High Court judgment only applies to Delhi, strictly speaking, although other jurisdictions will find it hard to ignore the precedent created by this decision. Various hard-line religious leaders in India are condemning the judgment and are demanding legislation to reverse it.
“We are totally against such a practice as it is not our tradition or culture,” said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council. “This Western culture cannot be permitted in our country,” said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow. Neither of them, presumably, has ever seen the Khajuraho paintings, or learned anything about India’s pre-colonial history.
But they will not win. Already, the newly re-elected Congress government is talking about rewriting the law so that all discrimination against minority sexual orientations becomes illegal. The clock will not be turned back.
We are trying to invent a better future, but we make progress by very small steps. Tennyson got the technology right, but he didn’t realize how hard the politics would be.
April 27, 2007
THE PARLIAMENT OF MAN
For I dipt into the future, far as human eye could see;
Saw the Vision of the world, and all the wonder that would be,
Saw the heavens fill with commerce, argosies of magic sails,
Pilots of the purple twilight, dropping down with costly bales …
Till the war-drum throbb’d no longer, and the battle-flags were furl’d
In the Parliament of man, the Federation of the world.
—from “Locksley Hall” by Alfred Lord Tennyson, 1842
One hundred and sixty-five years later after the publication of his poem, Tennyson would be impressed by the amount of air travel, and he would be encouraged by the steep decline in wars among the great powers. (They still attack small countries from time to time, but at least they don’t fight each other, which is when the mass deaths happen.) He would, however, be astonished that nothing has yet been done to make international society democratic.
There is already a world administration of sorts, in the form of the United Nations, the International Monetary Fund, the World Trade Organization and so on, but it is all in the hands of governments—and some governments are much more equal than others, so none of the global institutions ever acts against the will of the powerful. (Occasionally they refuse to approve some lawless deed of the powerful, as the United Nations did briefly over the American invasion of Iraq, but that is all.) And nowhere in all the layers of bureaucrats and diplomats is there any direct representation of ordinary people.
And so, only sixty-two years after the foundation of the UN, the Campaign for the Establishment of a United Nations Parliamentary Assembly (UNPA) launches this week in five continents. It has the signatures of 377 members of national parliaments from seventy countries, six former foreign ministers/secretaries, and various other international luminaries like Václav Havel, Günter Grass and former UN secretary-general Boutros Boutros-Ghali. But it also has a few little problems.
One is a distinct lack of Americans: only nine of the signatories are from the U.S. The well-known American allergy to international institutions that might infringe on the absolute sovereignty of the United States extends, in this case, to a body that could have no such impact because it would have no legislative or executive power. And that is precisely the problem: what is the point of this hypothetical world parliament, given that it would have no power over the UN Security Council, the International Monetary Fund, the World Bank, or any of the other real decision-making centres?
The
Campaign, whose headquarters is in Germany, explains that the UNPA “is envisaged as a first practical step towards the long-term goal of a world parliament,” but it would not even be elected in the first phase of its existence. Members from various national parliaments would be chosen, by whatever means each country saw fit, to sit together at the UN for a few weeks a year. It is the feeblest of symbolic gestures, and you wonder why they even bother.
European enthusiasts point out that, when the European Parliament was first set up in 1958, its members were chosen by the national parliaments of member states, and it had little control over the decisions of the European Union. As at the UN, decisions remained in the hands of national governments and of the international institutions that they directly controlled. But in 1979, they started electing members of the European Parliament directly, which gave it real democratic legitimacy and, little by little, it has gained some degree of control over what happens in Brussels.
It would take a very long time indeed for the same sort of evolution to occur at the UN level, where even the number of members each country gets would be the subject of fierce disputes. Would China really have as many members as the hundred smallest countries combined, which is what its population entitles it to? Would the United States settle for one-third as many members as India (assuming it agreed to be represented at all)? Obviously not, but what would be the right numbers?
At best, the supporters of the UNPA would have to work their way through all those problems and accept that, for the next twenty or fifty years, what they have created will be a debating chamber and nothing more. Is it worth all the effort for that damp squib of a result?
Yes, certainly. It would be open to individual countries to start electing their own members of the UNPA from the start, so that it had more democratic legitimacy. And although real power might take generations to arrive, from the very start a parliament of this sort would provide a very different perspective on the world—and a more realistic one—than the pious debates of the UN General Assembly and the hard-ball great-power politics of the UN Security Council. It would be very interesting at least, and maybe quite instructive.