Statecraft is an outstanding analysis of the "strategies for a changing world." The book is dedicated, interestingly enough, to "Ronald Reagan, to whom the world owes so much."
Lady Thatcher became Britain’s first lady Prime Minister in 1979, held the post for almost 12 years, and was the only British Prime Minister of the 20th century to win three consecutive general elections. It is well known that she and former US President Ronald Reagan not only enjoyed a good friendship but were partners in a great advocacy which political analysts have said could have been the driving force of a "conservative revolution that transformed the political landscape of the West and achieved a crushing defeat of communism." Statecraft’’s first draft was completed before the 9/11 terrorist attacks. In spite of the fact that the author in the introduction sort of apologizes for this and says that "any study of events always runs the risk of being overtaken by them" – which is what happened to Statecraft; in fact "so traumatic and far-reaching have been the consequences of that day’s vile outrages" – the author had felt that the draft should be re-studied to alter the emphasis in the light of what she calls 9/11, a "glimpse of Armageddon."
A few weeks ago, I read former Solicitor-General and Ambassador Raul I. Goco’s letter which was published in this paper captioned, "About the international criminal court (ICC)," which advocates the ratification of the Rome Statute of the ICC and stresses the urgency for the Philippine government to ratify said statute. Goco knows wherefore he speaks, having been a participant in the drafting of the statute at the International Law Commission (ILC) level and at the preparatory commission meetings convened by the UN. While plugging hard for expeditious ratification by all states of the statute, Goco underscores the fact that "the prosecution of crimes is something that no self- respecting government will deign to relinquish..." Under the statute, the exercise of jurisdiction is "anchored" on the rule of admissibility in that the court shall decide whether a case is admissible if it is already being investigated or prosecuted by a state which has jurisdiction.
At about the time that I was pondering this historical clash between the global jurisdiction of an international criminal court together with its coercive power on the one hand, and the sovereignty of states on the other, I saw Ambassador Goco and Senator Letty Shahani at Norway’s cocktail reception recently. The three of us immediately fell into an animated discussion about the effectivity of the ICC in this day and age where the international crime of terrorism is very definitely within the purview of jurisdiction of such an international court.
Crimes within the jurisdiction of the ICC are genocide, crimes against humanity, war crimes and of course the crime of aggression. Letty Shahani was, from 1981 to 1986, UN Assistant Secretary General for social development and humanitarian affairs and was the first Ambassador to Romania, the site of the first Philippine embassy in a communist country. As the three of us exchanged views, we discovered a unanimity of individual positions. It was difficult not to recall the thesis of my paper submitted actually more than three decades ago at the Yale Law School captioned, "An analysis of the enforcement powers of the United Nations," whose conclusion was "on all fours" with Manang Letty’s and Raul’s: that the enforcement of a judgment of an international criminal court, the effective imposition of the penalties thereto and pursuit of its criminal judgment can be as good only as the primary principle of "State Sovereignty" will allow.
Let’s zero in, for instance, on how we feel about human rights abuses. Are we obligated to act or have we the right to act, particularly if the measures to be undertaken conflict with the prerogatives of sovereign states? In fact, international or what we call transnational crimes in support of human rights many times directly clash and challenge state sovereignty. Horrible injustices and violations have pained the human conscience, crying out for remedial and corrective measures.
Does the sovereignty of every state, affirmed by Art. 2, Sec. 7 of the UN Charter, legally preclude intervention in the domestic affairs of states however justifiable and rational the cause might be? Is the human condition properly a global or supranational concern? It may be more likely to address human rights or questions of justice in global terms if we see the world as composed of individuals rather than of states. On the other hand, if we adopt the state-centric view, cries for justice and respect for human rights may certainly take the back seat. Is the evolution of what has been called "International Criminal Law" a precondition to any effective enforcement measures?
Lady Thatcher in Statecraft believes there is no way to make international law: "It is a recipe for confusion, and it provides endless scope for interpretation, and so, opportunities for bias. This is what we can expect from the International Criminal Court unless we stop it," a rather extreme view but she said it.
Ambassador Goco, who had done admirable work in the International Law Commission (ILC), mentioned that in earlier years, the commission had been tasked to prepare a draft Code of Offenses which the ILC did, but the same never reached approval stage because of the Cold War. Due to lack of time, the specific incorporation in the Roman Statute of the crimes under ICC’s jurisdiction was done, which otherwise should have been treated in a separate code.
Letty Shahani, whose immersion in foreign affairs and experience in the diplomatic service is an extensive one, categorically stated that "The UN is nothing but a reality of the power struggle of the actual world, more than 180 countries upholding the essence of international cooperation, but each one is only as strong or as weak as her national situation will allow."
I myself do believe that state sovereignty is a supreme, indomitable concept that detracts if not diminishes the reality of the coercive power of any international criminal court. "When all is said and done," as Manang Letty put it, "the UN is still an irreplaceable forum for diplomatic resolution, although it is correct to say that it is the big powers whose voices will be heard."
All three of us seemed to be in accord with regard to this dilemma of state sovereignty and the international criminal court, though in a gentler manner with Lady Thatcher. Her words on the ICC were much stronger. In Statecraft, she quotes from UN Secretary-General Kofi Annan on the ICC: "In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision...Only then will the innocents of distant wars and conflicts know that they too may sleep under the cover of justice; that they too have rights, and that those who violate those rights will be punished."
In the next breath she says: "But Mr. Annan’s vision is more likely to turn into a nightmare." She gave several reasons, among them the fact that those from the "rogue" states will simply ignore its jurisdiction. It would require a "global police force and at least, in embryo, a global government in order to ensure that its decisions were actually carried out." According to her, this is why the ICC has such appeal among the advocates of what is now called "global governance." She goes on to provide a paradox by saying: "...to whatever extent it is effective, it will render the West’s capacity to intervene less so." This, in spite of the very strong rhetoric of US President Bush these days. She prolonged her skepticism by saying that the effect of the ICC may therefore be "to diminish and not to increase" the numbers of what Mr. Annan has called the "innocents of distant wars and conflicts."
It has been good meeting Lady Thatcher again, this time in her book Statecraft. I had the great privilege of meeting her personally just a few years ago when she was invited by Citibank to the Philippines to share her expertise and experience with us. I had been tasked to meet her when I was DOTC Usec., so together with my good friend, then British Ambassador Adrian Thorpe, I had the pleasure of doing the honors upon her arrival and departure, and listening to her deliver one of the most brilliant speeches I have ever heard on world politics to a huge audience at the ballroom of the Inter-Continental Hotel, and shine through the open forum thereafter.
I could not help but tell myself: "This is indeed one great experience." That was then. Now, as I meet her again in Statecraft, and read through its incisive lines, the kind of commanding world leader that she was springs out: "The fundamental problem remains that there exists no adequate means of coercion to overcome the opposition of sovereign states, let alone of a superpower, to such a court’s decisions. The absence of world police forces and world armies reflects the fact that there can be no democratic legitimacy for such structures. There is no world government because there is no world ‘nation,’ no world political identity... Thus the only way to fulfill the UN Secretary-General’s (doubtless sincerely held) aspirations would paradoxically be to suppress democratic instincts, resist democratic pressures, and drain democracy of all real meaning"...strong straightforward rhetoric from one of the most brilliant statesmen of the past century.