Having witnessed the horrors of Cambodia, Rwanda, and Srebrenica, former French Foreign Minister Bernard Kouchner, the founder of Nobel Prize-winning organisation Médecins Sans Frontières, is a passionate advocate for humanitarianism reforming the law. He shared his views at the Rule of Law Symposium during the IBA’s annual conference in Dublin.
Human rights are conceived as universal. That is to say, applicable everywhere and egalitarian. The same rights for everyone – and that conception is, of course, the beginning of trouble. Nevertheless, the same rights for everyone: let’s share that dream.
But, with the rule of law, the term is widely used in many different contexts as if the meaning is unequivocal. Unfortunately there is no agreement concerning its definition and contents. You would certainly agree with me, dear lawyers, that our Russian friends are not following exactly the same rule of law as our American friends, Irish, or French friends.
I am not a lawyer but a medical doctor. Over 40 years ago, in creating Médicins sans Frontières (MSF) and then Médicins du Monde (MDM), and responding to the duty to intervene, to interfere, we, the French doctors, were law makers. If we had respected rule of law when we started MSF, we would have been unable to cross any borders. Sometimes you have to break the law to change it. And that is my advice: act illegally to change the law, and you will see, although you’re lawyers, afterwards, the change will follow you.
The name of our failure is Syria
I will discuss human rights, the rule of law and all the challenges we face across the world. But first let me strongly underline the progress we have been making. Considering the state of the world 40 years ago; 20 years ago; the number of states at war in the late 1980s; the number of democratic states; and the gender conditions, thanks to your commitment and dedication we have made progress in both human rights and the rule and law – with, of course, some significant steps back. Today, the name of our failure is Syria.
One question I will be discussing with you: is the UN Security Council a normative body? Or the ‘professor of law’; the academics; these famous national cultures and behaviours; the grass-roots actors; the NGOs; the activists; or the political leaders: who is in charge?
Several theoretical approaches have been proposed [to explain ‘rule of law’]. Oldest western philosophies of human rights, and some religions, situated the Flood as coming from the source of natural law. Other theories believe that it is a process of economic and social evolution. Is it so easy to separate civil and political rights, and economic, social and cultural rights? On the ground it is not at all; it is very difficult. It is difficult to convince local people, in the name of the so-called ‘international community’ – and, if we have time, we can talk with Hans Correll about the way we [convinced people] in Kosovo. The way, at the beginning, we did not! But [eventually] did, more or less. And I remind you that Kosovo is now an independent state, as of two or three weeks ago. Though that is not the end of the story...
So, to convince the local people in the name of the international community that, for their own personal interests, they should follow our advice – concerning relations between men and women, for example – is difficult. Or to set up a health or social welfare system – not easy. Easy to say. Another criticism, and it is the major subject of discussion: universality has led to persistent contestations, and the cultural, economic, educational factors are the most important reasons not to change anything, for them, for the local people. And when I say ‘local people’, of course you have to distinguish between politicians, people in charge, and people on the street.
And certainly the most influential argument to remain constant has been male power over female. Was it custom that made the Chinese women suffer with mutilated feet? Aesthetic reasons? The Chinese men were pretending that the women were not suffering for these poor feet. And Doctor Sun Yat-sen – because the founding father of the Republic of China was a medical doctor – he took off the bandages [...] This barbarian behaviour lasted until 1,000 years ago. Are we making progress in prohibiting sexual mutilation? Yes, but not completely. Are we supposed to make change, forcibly? It is difficult.
In fact, while many successes have been achieved, the 1993 World Conference on Human Rights held by the UN in Vienna, almost 20 years ago, in the programme of action, signed by all the participants: ‘all human rights are universal, indivisible, inter-dependent and related. The international community must treat human rights in a fair and equal manner, on the same footing, and with the same emphasis.’ And this statement was again endorsed by the world summit in New York in 2005. That is to say, to underline, the role of the UN people, and the role of the international organisation, the UN. It’s not the only one, but it is to be respected.
But the signatories to this text do not in practice give equal weight to the different types of right. The western union has often given priority to civil and political rights, sometimes at the expense of social and economic rights, such as the risk to work, to education, to health and housing. Similarly the former Soviet bloc tended to give priority to economic, social and cultural rights, but often failed to provide civil and political rights.
We should also discuss who is able to lead. All nations follow the human rights declaration, and I just want to quote some particular examples. The UN Security Council has the primary responsibility for maintaining international peace and security, and this is the only body of the UN that can authorise the use of force. But what about Darfur, Srebrenica, Rwanda, Syria today? We are all subject to a veto; for the time being, China and Russia are not in agreement on Syria, and [the situation in Syria] has lasted for more than a year. Now there is the risk of war in the whole region, bombing Turkey, Turkey bombing Syria in response, et cetera.
So, let’s turn to the rule of law. This very important concept (because human rights, people know about; the rule of law is still a very mysterious galaxy to some people): if local people accept this message or pressure, it’s OK. But I remember how difficult it was to get Sergei Lavrov – still the Russian Minister for Foreign Affairs – to accept, after bloody massacres, just the idea itself of the autonomy of Kosovo. It has taken months and months, years and years.
While the term ‘rule of law’ is widely used in many contexts [...] a considerable amount of confusion and misunderstanding surrounds it. This ambiguity explains the various uses of this expression by experts and political leaders of very different ideologies.
The rule of law affirms the supremacy of the legal system over all individuals and organisations, including the state. It also implies other features: the principles of legality; accessibility of justice; and independence of the judiciary. The dividing line is between the formal and institutional dimension of the rule of law, and the normative and substantive dimension. This is a very crucial line in transitional justice, in conflict and post-conflict societies.
These boundaries appear particularly acute around the inclusion (or not) of the human rights perspective. It contains, in a way, the guarantee of human rights; the rule of law is, theoretically, a guarantee for human rights. In fact, it was a very important obstacle in peace-building missions in Africa and, more recently, in the Western Balkans – even if the UN Secretary-General defined the rule of law [as being] at the very heart of this kind of mission. It refers, he said, to a principle of governance in which all persons, institutions and entities, public or private, including the state, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. Easy to say! It takes centuries. ‘Centuries’: I exaggerate, but let’s say it takes many years.
It requires, as well, measures to enforce compliance of the principle of the supremacy of the law, equality before the law, separation of powers, et cetera. If such a definition is accepted, human rights should be part of the package, with strong respect, adherence.
Rule of law as a western export
In the wake of decolonisation, rule of law became very popular where economy, trade, banking were concerned. The rule of law was a synonym for law and development programmes – education, mainly. But after ten years, this conception faded, [and was replaced] with a negative view of the rule of law. A vast movement of critics saw it as an attempt to export a western, and particularly US, model without sufficient concern for local needs, and specificity was accused of being the cause of many failures. It was absolutely not right, but it was the feeling of the people. You are imposing, coming from afar, coming from the rich countries, your way to control, your way to govern, et cetera, and your banking system. I was going to talk about debt, but..! ...I’m strongly opposed to this interpretation, even if the reality is often different from the theoretical approach.
Post-conflict and transitional societies offer another opportunity to develop a broader concept of the rule of law. After the fall of the Berlin Wall, in 1989, the major focus was on human rights promotion, [in the form of] the preamble of the Universal Declaration of Human Rights: it is essential, if man is not compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. The UN Security Council also used the words ‘rule of law’ in a paragraph of the resolution 1014 to promote, in 1996, national reconciliation in Burundi. And, from 1993 to 2002, the General Assembly’s third committee was working hard on the rule of law.
‘A thought for the people in Syria now…We are as inert as we were facing Rwanda or the Second World War’
Rule of law has, in recent years, been expanded from the national to the international dimension. But this is, however, a conceptual definition with no complete legal value. Some academics believe that a realistic approach should aim at a minimalist interpretation, with no substantive political content – democracy, promoting certain human rights, redistributive justice or laissez faire capitalism.
A lot of people are now involved in human rights and rule of law. Many NGOs – for good and bad reasons – specialists in political approaches; human rights; economy; etc. It is difficult to separate all these sounds and make music with them. But, we have to try. A lot of experts – often with experience on the ground,Bernard sometimes with none – who is in charge?
Of course we have to fight corruption, yes; empower women, yes. But it takes not only one year, not only ten; it takes a lifetime. I am a supporter of the UN mission – I have devoted my life to that. But to be in a country far from home and to be in charge of changing, not just the theoretical law, which is very difficult, but also the views of the people. This is the challenge.
I was in Rwanda during the genocide [...] Rwanda was a popular genocide. Have you been to Srebrenica? To Cambodia? I was there is 1975. So this is not forever: people change – yes, for the good, but sometimes for the bad.
I want to end with a thought for the people in Syria now, because we said – including my government – that we were sure to intervene and to stop the massacre, and we did not. Now how many are dead? We are as inert as we were facing Rwanda or the Second World War.
So, human rights is my religion, and the rule of law my bible, but we have a long way to go.