THE FORCE OF LAW AGAINST THE LAW OF FORCE
THE FORCE OF LAW AGAINST THE LAW OF FORCE
Official of the Pontifical Council for Justice and Peace
"What stands between the powerful and the weak is freedom that oppresses, and the law that gives freedom". This sentence, spoken in 1848 by a well-known French preacher Fr Henri-Dominique Lacordaire, could be used, effectively to sum up the spirit of humanitarian law, that is, that series of juridical measures drafted in our epoch to protect war victims. The drafting of these measures begun in 1862 when the book Un souvenir de Solferino was published in Geneva in which Henry Dunant, inspired by his Christian faith was able to make public opinion aware of the need to provide help to the wounded left on the battlefields through the intervention of a "society" of internationally recognized and juridically protected volunteer workers.
The Swiss Federal Council's decision to convoke a diplomatic conference (in which the representatives of 16 countries took part), which in 1864 adopted the Convention de Genève pour lamélioration du sort des militaires blesses dans les armées en campagne developed from the proposal "to study and seek to resolve a matter of such high and universal importance, from the double standpoint of humanity and Christianity" formulated by H. Dunant.
This convention marked the beginning not only the humanitarian activity of the movement which later took the name of the Red Cross, but also of a widespread flourishing of accords until the adoption, in 1949, of the four Geneva Conventions, integrated by two additional Protocols in 1977 and accompanied by a series of international juridical instruments: from the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects (1980), from the Ottawa Convention on the Anti-Personnel Mines Ban, (1997) to the Statute establishing an International Criminal Court (1998) with , the role, among other things, of bringing to justice, those guilty of serious violations of the Geneva Convention
It is appropriate to stress that with the exception of the 1864 Convention (for the reasons explained by Fr Joblin in the article published in this insert), the Holy See, took an active part in all the preparatory sessions for the above-mentioned instruments, making its contribution of general orientations and specific suggestion. Sometimes it also intervened in the international community's, decisions in advance, as in,1953, in the case of the address in which Pius XII pointed out the principles to be taken into account in the perspective of an international penal jurisdiction.
For his part, John Paul II has not failed to give repeated encouragement to the efforts to create an International Criminal Court, and in his Message for the World Day of Peace for 1999 he said: "This new institution, if it is established on good juridical bases, could progressively contribute to assuring on the world scale the efficient protection of human rights."
However, the coming into force of this Court is not imminent, and in any case, in spite of its notable "deterrent" function even were it to have the power of a magic wand, it would not, in itself, be able to prevent the continuing perpetration of war crimes. Indeed, it would be wrong to foster the illusion that the threat of punishment is sufficient to put an end to these crimes. The juridical instrument is necessary put insufficient to achieve this aim and should be accompanied by an in-depth education in the values that inspire humanitarian law: the dignity of the person, solidarity with the victims and the primacy of law over force.
When one reads the list of crimes contained in the Statute of the International Criminal Court, one realizes the immense pedagogical task that must be accomplished if criminal conduct, is to be effectively reduced. Starting with the right to life: taking a close look, every homicide, as an, act against a human being's lifeand therefore against his right to life, from conception to natural deathis a crime against all humanity, given that a mysterious but real bond of fraternity unites all the members of the human family.
Much is said, and rightly, of the struggle against the "culture of impunity": the expression, itself is an eloquent sign of the importance of the educative dimension. Especially in situations in which multiple war crimes, crimes against humanity and crimes of genocide are perpetrated, repressive, intervention should be sustained by adequate initiatives that aim to change mentalities. At times, the change can be encouraged by a penal sentence; in other cases the result can be better obtained with measures of a different type. The method to be followed can be "just" without necessarily being "judgmental", as the experience of the Truth and Reconciliation Commission has shown in the difficult South-African context of "post-apartheid".
In particular, in conflicts in which, devastating splits between ethnic or national communities have occurred, the outrage of dignity and the upheaval of peace cannot be restored by: the dynamics of law alone. Rather, one should question oneself on the causes of the conflict and on the conditions in which the criminal acts were perpetrated: to e1iminate them once and for all they must be uprooted, and it is therefore necessary to know how to follow the path of truth and reconciliation. A very demanding path, since it requires that conversion of heartfor Christians, the fruit of God's gracewhich can reject hatred and revenge, to the point of rediscovering love. It must not seem but of place, or utopian to refer to love, even amid the bloodiest of combats. It is interesting to note that the original motto of the International Committee of the Red Cross was "Inter arma caritas"; on the other, hand, the words of the Norwegian statesman Fridtjof Nansen (who in 1920 was designated by the Society, of the United Nations as Commissary for the repatriation of all prisoners of war): "love of neighbour is a realistic policy" deserve to be remembered.
An appropriate collaboration between humanitarian organizations and religious leaders could release fruitful synergies. Some people express reservations on the positive role of religion in the humanitarian field, tendering the argument that armed conflicts of a religious kind do exist. If this has come about in the course of history, it appears difficult to sustain in today's world. It is an argument based on a superficial interpretation of contemporary conflicts because, with a more detailed analysis, one realizes how the roots of these conflicts are sunk in a power struggle which eventually exploits religious identity and aims to reinforce the capacity to fight.
In brief, it is in every person's conscience that law lives or dies. If one does not succeed in motivating consciences, the direct commitment to developing normative structures risks being wasted: this has been the tragedy of international humanitarian legislation during the past 50 years. In this frame work, a significant although limited help could come from the religious personnel present in the armed forces.
If one is not persuaded that human dignity is a transcendent value which stems from a superior kind of foundation, that it is an irreplaceable good because it marks every human being indelibly, if it is not understood that this is what is at stake, then it will not be the force of law interiorized in consciences that will be imposed, but the law of force, extrinsicated in a will for power that knows no bounds.
The words written a century ago by the famous Russian jurist Frederick de Martens, described as the "soul" of the first international Peace Conference held in the Hague in 1988, sound a prophetic note: "The idea that law shou1d rely on force seems incompatible with human dignity, dangerous for the social order and fatal for international life".
Weekly Edition in English
11/18 August, page 6
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