Sofia Sutera, PhD Candidate, University of Padova

Introduction

The human right to peace is a new and debated human right, even if this observation should be evaluated as almost paradoxical considering that peace is a necessary prerequisite in order to enjoy all the other human rights, even the very and fundamental right to life. Indeed, as the first article of the 2016 UN Declaration on the Right to Peace states: “Everyone has the right to enjoy peace such that all human rights are promoted and protected and development is fully realized”. Similarly, already in 1984, the UN Declaration on the Right of Peoples to Peace affirmed: “that life without war serves as the primary international prerequisite for the material well-being, development and progress of countries, and for the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations”.

Moreover, the 1948 Universal Declaration of Human Rights, the founding document of the overall human rights regime (Heupel, 2018), begins by asserting that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace”. This sentence clearly highlights how the protection of fundamental human rights and the core values of freedom, justice and peace are connected in a mutual exchange where one outcome cannot be achieved without the other (Schabas, 2017, p.30).

Finally, but of primary importance considering also that some scholars see this document as the constitution of the international community (Klabbers, 2017, p. 94), the Preamble of the Charter of the United Nations manifest the basic objective of the creation itself of the UN Organization proclaiming that: “we the peoples of the united nations determined to save succeeding generations from the scourge of war”.

Thus, considering the paramount relevance of the right to peace and its complex understanding, particularly for what regards the conception of a human right to peace, the aim of this paper is to reflect on the perception of the concept of peace at the international level, taking in particular into account the well-known Latin maxim: si vis pacem para bellum (if you want peace, prepare for war). This post argues that in order to reach peace it is necessary to start with a reformulation of our understanding of peace in order to see it as an autonomous concept and not just as the temporary status between the previous war and the next one. This is actually a process which can be favoured by the recent activation of the jurisdiction of the International Criminal Court (ICC) over the crime of aggression, namely “the final step in the long journey towards the criminalization of crimes against peace” (Akande and Tzanakopoulos, 2018, p.940). Thus, this article starts by examining the quite different language of the 1984 UN Declaration on the Right of Peoples to Peace and the 2016 UN Declaration on the Right to Peace to then focus on the crime of aggression itself.

The conceptualization of peace

Not only the idea of a human right to peace is contested, but also there is a lack of consensus on what the very term peace means. 

Traditionally peace has been looked at only in negative terms, by which I make reference to the definition of negative as “consisting in or characterized by the absence rather than the presence of distinguishing features” (whereas consequently by positive I refer to “consisting in or characterized by the presence rather than the absence of distinguishing features”), as the first definition provided by Oxford Languages 2021. In fact, peace has been consistently understood as the absence of war. In this view, peace has no intrinsic value, but it exists only in this antagonistic relationship, because of and thanks to its opposite counterpart, that is war. The famous Latin quote: “Si vis pacem, para bellum”[1], namely “if you want peace, prepare for war”, displays exactly this perspective, where peace can be understood only through war and is seen only in the viewpoint of the next war. Gradually, though, peace has started to be acknowledged as a complex and multi-layered reality characterized by different components, including duties and obligations, and connections to many fields of knowledge (e.g. the vital importance of education for peace). Thus, peace is not anymore seen only as the flat opposite of war, it is not any longer just a void concept dependent on the concept of war as its necessary precondition, but it is finally an independent and autonomous construction.

The lack of a clear definition of the concept of peace emerges also in the consequential concept of a right to peace, which has been defined as a third-generation human right, thus, considering the idea of different generations of rights[2], as a right belonging to the most controversial and least institutionalized category (Langlois, 2016, p.16).  Indeed, even during the discussions at the debate that preceded the adoption of the resolution A / HRC / 32 / L.18, which contained as an annex the text of the 2016 UN Declaration on the Right to peace, opposite views on the understanding of the concept of “peace” emerged. Cuba stated that: “Peace is not a utopia but a human right of every individual and of all peoples” and that it is “one of the fundamental conditions for the respect of all human rights and in particular for the respect of the supreme right to life.” On the other hand, the Netherlands and the United Kingdom disclosed their opposition to the adoption of the resolution, alleging the lack of a legal basis in international law, considering particularly that no certain definition of the concept of “peace” has been accepted at the international level (APG23, 2016).

Notwithstanding this relevant deficiency, observing in detail the text of the two aforementioned UN Declarations regarding peace, it is evident an important shift in the perception of the meaning of the right to peace from a “traditional approach” to a “human rights approach”, as defined by Guillermet Fernandez and Fernandez Puyana (2017).

In the Declaration of the Right of Peoples to Peace, adopted on 12 November 1984 by the United Nations General Assembly (UNGA) in its Resolution 39/11, a classical approach to the right to peace emerged, where peace is considered in the classical tradition of international relations focusing on the interactions among states and the condemnation of war at the international level, but where there is no reference to human rights issues (Guillermet Fernandez and Fernandez Puyana, 2017). Indeed, there is only one mention to the cold hard fact that the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations necessarily require the precondition of a life without war, yet there is no other reference to human rights instruments. The remaining text, and particularly the four articles therein contained, affirms an abstract right of peoples to peace that is seen only in terms of a collective right which demands the constant collaboration of states in order to be effective. Thus, in this understanding of peace as a matter of state practice, the protection of the right to peace has subsequently been addressed by means of the principles contained in the second article of the UN Charter (Guillermet Fernandez and Fernandez Puyana, 2017, p. 279), namely principles elaborated to settle international disputes among states.

On the other hand, in the Declaration on the Right to Peace, adopted on 19 December 2016 by the UNGA in its resolution 71/189, a completely different understanding of a right to peace emerged. In fact, in its wide Preamble not only the UN Charter is mentioned but also all the main human rights instruments, from the Universal Declaration of Human Rights to the Declaration and Programme of Action on a Culture of Peace, many different instruments which show a much more comprehensive understanding of peace. Indeed, it is explicitly stated that “peace is not only the absence of conflict but also requires a positive, dynamic participatory process where dialogue is encouraged and conflicts are solved in a spirit of mutual understanding and cooperation”. Moreover, the concept of a culture of peace is stressed throughout the whole preamble. The five articles depict a distinctive configuration of a right to peace which is connected directly to the single individual, and even when states are mentioned they are seen as vehicles to build peace within and between societies. This declaration moves the focus to “those who truly suffer in a conflict: human beings and peoples” and shows “a clear victim orientated approach” (Guillermet Fernandez and Fernandez Puyana, 2017, p. 276). Moreover, the necessity of an education for peace and the provisions of human rights instruments are also addressed in the articles, the actual normative part of the declaration (despite considering that a declaration is generally understood as a document of intent, see Klabbers, 2017, p. 94).

The criminalization of aggression

Considering again the mentioned quote “Si vis pacem, para bellum”, it is clear how this approach constructs a form of precarious balance set to be destroyed by the next war in a never-ending cycle, where conflict is always waiting beyond the horizon. This kind of approach, based on the idea of threatening the resort to violence in order to condition and bind the adversary, can be considered as deterrence politics which (overturning the famous quote from von Clausewitz) are nothing more than the continuation of war by other means (Perini, 2014). Still, it is paramount to reflect on the fact that war has long been declared illegal at the international level, at least since the 1928 agreement known as the Paris Peace Pact, officially named “the General Treaty for Renunciation of War as an Instrument of National Policy”, which was signed by all the nations of the world and aimed at outlawing war (Hathaway and Shapiro 2017), a pact which even if “widely disparaged or ignored—led to a new international order” (Menand 2017).

Looking again at the text of the above mentioned UN declarations on a right to peace, it is possible to observe that both of them include the term war but while the former declaration refers to it expressly in the third article by means of an explicit request to states to work for “the elimination of the threat of war, particularly nuclear war”, the latter document quotes war solely in the preamble and only three times, which, seen the overall length of the preamble, is a very little amount. Furthermore, two times out of three war is mentioned as a direct quotation of the UN Charter (the same reference quoted in the introduction to this essay, in fact in the text we read: “to save succeeding generations from the scourge of war/sparing future generations the scourge of war”). This lack of focus and critical reflection on the concept of war in a universal declaration about peace is particularly worrisome. In fact, in spite of the commitment that the international community made by creating the United Nations (namely to maintain international peace and security[3]), the current world order rather has been based so far on a global understanding of peace which has resulted in a balance of terror, that is in an arms race. As a matter of fact, war is still considered as a necessary means to maintain peace, or at least a form of world equilibrium, notwithstanding the fact that the third reference to war in the 2016 UN Declaration on the Right to Peace clearly states that: “since wars begin in the minds of human beings, it is in the minds of human beings that the defence of peace must be constructed[4]”, thus outlining the necessity to change our very mentality in comparison with peace. Still, this paradigm shift in our understanding of peace has not happened yet, as we can observe clearly by the tormented story of the crime of aggression whose troubled official recognition at the international level can be interpreted as a clear paradigmatic outcome of this warlike mentality.

Whereas there have been no cases of prosecution for post-1945 cases of resort to armed force either at the domestic or the international level (Antonopoulos, 2001, p. 33), already in 1946 the Statute of the International Military Tribunal at Nuremberg coined the category of crimes against peace, and aggression was defined as “the supreme international crime” during the opening statement. Moreover, the UN, established in the same year, affirmed unanimously through the General Assembly the principles of the Nuremberg Charter and judgment and recognized aggression as a customary law offense (see for example Antonopoulos, 2016), thus as evidence of a general practice accepted as law (Klabbers, 2017, p. 279). Yet the crime of aggression has been until very recently blocked in a “legal limbo” (Ferencz, 2017, p. 25).  Indeed, even if the statute of the International Criminal Court (ICC) provides the court with jurisdiction over the crime of aggression, the ICC lacked any actual power over this crime until the 17 of July 2018, the date of the 20th anniversary of the ICC’s founding treaty, chosen by the 16th annual session of the Assembly of States Parties (ASP) to the Rome Treaty in December 2017 as the starting point of the jurisdiction over the crime of aggression. As a matter of fact, the Rome Statute allowed the Court (established in 2002) to “exercise jurisdiction over the crime of aggression” only after “a provision is adopted . . . defining the crime and setting out the conditions under which the court may exercise such jurisdiction.” The definition of the crime was finally reached by member states at the review conference hold in Kampala in 2010 and is now contained in the Statute’s art. 8 bis, whose main element is that the act of aggression must constitute a manifest violation of the Charter of the United Nations[5].

Conclusions

We can observe that a new understanding of peace is spreading at the international level.

On the one hand, the texts of the two UN declarations on a right to peace show a gradual comprehension of peace as a human right. This reformulation of the right to peace in a human rights frame can permit to shift the focus from the state to the individual, who is exactly also the object (-subject) of the ICC, an institution which has been constructed on the basis of moving away from the classical view in international law of the state as the sole criminally relevant actor to that of individual responsibility.

On the other hand, the long-awaited implementation of the crime of aggression finally gives the possibility to reach an autonomous understanding of peace, free from the traditional two-sided approach always centred on the peace-war dichotomy. Indeed, it is not possible to reach peace without condemning war and the crime of aggression is at the core of the very concept of war. Finally, the international community seems to have overcome the hypocritical strategy of condemning the recourse to war at the theoretical level, without criminalizing it at the practical level. This long-overdue development at the international level permits, thence, to go beyond the conviction that: “si vis pacem, para bellum”, indeed it further removes any legitimacy to the resort to war halting the arguments of warmongers. Only removing war from the equation, understanding that it is not a necessary prerequisite for peace, a positive understanding of peace can be reached.

Together with a consequential approach to peace as a human right, this potential paradigm shift at the international level can ultimately allow humanity to experience peace. Still, how much the ICC will be permitted to exercise this jurisdiction, considering also that major military powers are not parties to its founding treaty, only time will show.

References

Akande, D. and Tzanakopoulos, A. 2018.  Treaty Law and ICC Jurisdiction over the Crime of Aggression, European Journal of International Law, Volume 29, Issue 3, August 2018, Pages 939–959, https://doi.org/10.1093/ejil/chy059

Antonopoulos, C., 2001. Whatever happened to crimes against peace? Journal of Conflict and Security Law VOL. 6 No. 1, 33-62

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Guillermet Fernandez C. and Fernandez Puyana D., 2017. The Adoption of the Declaration on the Right to Peace by the United Nations: a Human Rights Landmark. Peace Human Rights Governance, 1(2), 275-297

Ferencz, D., 2017. Continued Debate Over the Crime of Aggression: A Supreme International Irony [online] Available at: < http://www.harvardilj.org/2017/04/continued-debate-over-the-crime-of-aggression-a-supreme-international-irony/> [Accessed on 24 January 2021]

Hathaway, O.A. and Shapiro, S., 2017. Making war illegal changed the world. But it’s becoming too easy to break the law.  [online] Available at: https://www.theguardian.com/news/2017/sep/14/making-war-illegal-changed-the-world-but-its-becoming-too-easy-to-break-the-law [Accessed on 13 May 2021]

Heupel, M., 2018. How do States Perceive Extraterritorial Human Rights Obligations? Insights from the Universal Periodic Review. Human Rights Quarterly. Volume 40, Number 3, August 2018 pp. 521-546

Klabbers, J. 2017. International Law. 2nd ed. Cambridge: Cambridge University Press

Kress, C., 2018. On the Activation of ICC Jurisdiction over the Crime of Aggression. Journal of International Criminal Justice 16 (2018), 1-17

Langlois, A. J., 2016. Normative and Theoretical Foundations of Human Rights. In: Goodhart, M., 2016. Human Rights: Politics and Practice. 3rd ed. Oxford: Oxford University Press

Menand, L., 2017. What Happens When War Is Outlawed. Did a largely forgotten peace pact transform the world we live in? [online] Available at: https://www.newyorker.com/magazine/2017/09/18/what-happens-when-war-is-outlawed [Accessed on 13 May 2021]

Perini, M., 2014. Approfondimento – Si vis pacem para bellum [online] Available at: < https://www.spiweb.it/dossier/dossier-psicoanalisi-e-guerre-gennaio-2014/si-vis-pacem-para-bellum/> [Accessed on 24 January 2021]

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[1] Probably derived from the later Roman Empire writer Vegetius who stated “Igitur qui desiderat pacem, praeparet bellum” (Perini, 2014).

[2] Coined by Karel Vašák in the 1970s in order to practically and comprehensively categorize human rights (see Vašák 1977, pp. 29–32).

[3] See e.g. Guillermet Fernandez and Fernandez Puyana, 2017, p.275: “The UN Charter is the most solemn pact of peace in history” and p. 287, but also the initial words of the UN Declaration on the Right of peoples to peace: “the principal aim of the United Nations is the maintenance of international peace and security”.

[4] As affirmed also in the Preamble to the Constitution of UNESCO: “since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed.”

[5] Moreover, the conditions for the exercise of this jurisdiction are much stricter than those governing the ICC jurisdiction over genocide, crimes against humanity and war crimes: in fact, except for the Security Council referrals, the exercise of the Court’s jurisdiction over the crime of aggression will remain dependent on the consent of the states of the relevant territories and of the nationality of the individuals concerned (Kress, 2018, p.7). Furthermore, it was decided that the activation of the Kampala reviews required the ratification or acceptance of the amendments by 30 States Parties and a further decision, after the 1 of January 2017, by the same majority of States Parties (as is required for the adoption of any amendment to the Statute). Reached the first condition, after very strong divisions concerning more restrictive or more permissive positions at the sixteenth session of the ASP, held between the 4 and 14 December 2017, the State Parties managed to agree on the activation decision (Kress, 2018, p.9).