Security Council veto should not apply for war crimes

Faced with the appalling use of chemical weapons in Syria against civilians, including children, the familiar pattern of initial outrage gives way to acceptance that the UN is gridlocked by the failure of the major powers to take action through the Security Council.

This impasse must be seen in a wider historical context to gain perspective on the issues at stake. Immanuel Kant’s 1795 essay Perpetual Peace spoke of the attainment of a “cosmopolitan condition” and argued that the key to abolishing war was the creation of a worldwide constitutional order in a world republic.

With political power tamed and constitutionalised and the cosmopolitan extension of civil liberty, there would be no war and any outbreak of conflict could be quickly quelled. For reasons of feasibility, Kant also spoke of a league or confederation of republics with shared constitutional commitments.

German philosopher Jürgen Habermas is an enthusiastic defender of the Kantian project of the constitutionalisation of international law. He points to how in reaction to the industrial slaughter of the trenches following the first World War, support was given to then US president Woodrow Wilson’s initiative to found the League of Nations.

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The provisions of the league were followed by the legal proscription of wars of aggression in the Kellogg-Briand Pact of 1928, thus triggering substantial developments in international law.

Revulsion at the horrors of the second World War and the Holocaust provided the groundswell of support whereby Roosevelt's and Churchill's Atlantic Charter led to the founding of the United Nations in 1945.

The cold war and the veto in the Security Council restrained developments, but with the fall of the Berlin Wall, there followed in the 1990s a number of successful peacekeeping and peace-enforcement operations.

Death camps

The commitment to human rights proved innovative in international law and the setting up of an international court in The Hague to deal with and crimes against humanity gave institutional expression to the new international legal order.

Developments in thinking on human rights merit attention because of their far-reaching implications. Article 1 of the United Nations Universal Declaration of Human Rights states: “All human beings are born free and equal in dignity and rights.”

Habermas points out that the emphasis on human dignity is novel and not found in the classical 18th century human rights declarations. He attributes recourse to such language to the morally charged response to the obscenities of the death camps.

The invocation of human rights arises from the sense of outrage at the violation of human dignity, and this establishes a conceptual connection. This emphasis on human dignity is not an empty placeholder “but the moral ‘source’ from which all of the basic rights derive their sustenance”.

Historical circumstances have made us more aware of what was inscribed in human rights, implicitly at least, from the very outset, “namely, the normative substance of the equal dignity of every human being”.

Such recognition has broader ramifications. In case law, judges can appeal to the protection of human dignity. Social exclusion, inequality and discrimination are evident threats to human dignity and lend warrant to supplementing classical liberal rights with economic, social and cultural rights.

Absolute worth

Human dignity, Habermas writes, “forms the ‘portal’ through which the egalitarian and universalistic substance of morality is imported into law.” Claiming and enforcing human rights has been a deeply contested process: “Historical experiences of humiliation and degradation, which were already interpreted in the light of an egalitarian Christian understanding of human dignity, represented one motive for resistance.”

Convictions concerning human dignity are rooted in a belief in the absolute worth of human persons, and here Habermas acknowledges that philosophy appropriated ideas from the Judaeo-Christian tradition.

Much of the potential in human rights discourse is still unspent, but the work of the UN in codifying human rights into international law, developing procedures for petitions and setting up international courts, represent a considerable achievement.

Against this background, Habermas deems Bush's invasion of Iraq without UN authority a colossal setback. After a decade where we have seen in the Middle East to what depths life without international law can descend, the Kantian project has renewed urgency.

Unilateral air strikes don’t alter the need for public indignation to force leaders to break the impasse and, through the UN, garner a political solution.

The veto in the Security Council shouldn’t apply for war crimes.

John Marsden is an Anglican theologian