Opening address expert seminar 'Counterterrorism strategies from an international law and policy perspective'
Counterterrorism strategies from an international law and policy perspective
Expert seminar, Oud Poelgeest, 10-12 April 2007
Opening address by the Minister of Foreign Affairs
Distinguished guests, ladies and gentlemen,
(Welcome to the legal capital of the world)
Welcome to the Netherlands. It’s a great pleasure to see you all here, at this beautiful 17th century estate. As a former member of Oegtsgeest Municipal Council in the eighties, I’m glad we took the decision to restore this property to its former glory. Since the remodelling, it’s become an ideal venue for seminars like this one.
Oud Poelgeest is very close to The Hague, which has been ‘the legal capital of the world’ for over a century. It is a designation we take pride in. In October, the Netherlands will be celebrating the hundredth anniversary of the Second Hague Peace Conference, which was held in 1907. Today we host, amongst other bodies, the International Court of Justice, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court – the most recent addition to our legal family.
The Netherlands cherishes this strong legal tradition, both at home and in its dealings with other nations. Hugo Grotius, who lent his name to the institute that organised this gathering, would be pleased that under our constitution, foreign policy must not only further national interests, but also promote the international legal order. As we see it, a strong international legal order is a precondition for a more equitable, peaceful and prosperous world. A world that safeguards freedom, equality, democracy and human dignity. These are values we hold dear and seek to protect, in all circumstances.
For all these reasons, I’m pleased you could gather here to engage in free and constructive debate on the relationship between international law and the fight against terrorism.
I’d like to thank the Grotius Centre for International Legal Studies at Leiden University, and Professor Schrijver in particular, for organising this expert seminar, with the full financial support of the Ministry of Foreign Affairs. I know that you will be in good hands over the next few days!
Ladies and gentlemen,
(Evolution of international law)
Today’s world is very different from that of 1907. In the span of a century, international law has grown by leaps and bounds. The Hague Conventions were among the first formal statements of the laws of war in the corpus of modern international law. In the wake of two World Wars, the Geneva Conventions of 1949 created the framework for international humanitarian law. In the decades that followed, additional protocols were added and various human rights conventions were concluded. As new realities presented themselves, international law adapted to the changing times. Over the last hundred years, the evolution of legal norms has resulted in a rich body of international law.
(Modern terrorism & security interests)
Then, at the turn of the new century, modern terrorism reared its ugly head and confronted the world with a threat of new dimensions. The attacks on the World Trade Centre and the Pentagon were not isolated incidents. They were followed by bombings in Madrid and London, and many other atrocities around the world. Our values were suddenly under attack, not from a familiar enemy, but from international terrorist networks, trained to harm civilian populations to the greatest extent possible. This new threat does not fit old patterns of international aggression: there is no country or other recognisable enemy, no traditional boundaries, no traditional warfare. Modern terrorism is an international threat, as real as those that nations have faced in the past, but far less familiar. It is a phenomenon that threatens our legitimate security interests.
Ladies and gentlemen,
(Response to modern terrorism; differences of opinion)
The world is united in its condemnation of terrorism. But to date, the world has failed to come up with a full, united and effective response to the challenges it poses, either in the political or in the legal domain.
Of course, we’ve made important progress in developing legal and policy frameworks over the past few years. We have agreed on counterterrorism strategies both at the United Nations and within the EU. But there is still no comprehensive convention on terrorism, largely because we cannot agree on the definition of a terrorist act.
Opinions also differ on the relevant law. Is the fight against terrorism an armed conflict, meaning that international humanitarian law should apply? Or is it actually the domain of criminal law? So we have to decide which type of law should prevail, and we must also address an even broader question: is contemporary international law equipped to meet the challenges of modern terrorism? Ladies and gentlemen, there is a lot on our plate tonight.
(The Dutch position, specifically on rule of law and human rights)
The Netherlands has always made it abundantly clear that the rule of law must always be upheld when combating terrorism, both nationally and internationally.
The orator Cicero was once called upon to defend the Roman praetor Milo from accusations that he had murdered his rival, Clodius. Cicero argued that the killing had been in self-defence, saying, ‘Silent enim leges inter arma’. In the face of arms, the law stands silent.
Ladies and gentlemen,
I would remind you that Cicero lost that case. And rightfully so, I would say, though I do realise that it’s dangerous for a politician to comment on legal verdicts, even if they are over 2000 years old! The rule of law is an inflexible imperative. Any response to modern terrorism must be within the bounds of the law. It is my firm conviction that, in defending ourselves and our values from terrorist attacks, we mustn’t compromise those same values. Moral authority ought to be an important element of any action taken to rid the world of terrorism. This implies that we must recognise the human rights of our worst enemy, even if we don’t like the idea. Respect for human rights standards is a line we must not cross.
And yet we know that human rights are under pressure. In fact, Amnesty International has gone so far as to say that governments around the world are undermining human rights in their fight against terrorism. Illegal detentions, lack of due process, torture … these are serious allegations, and sadly, this may not even be the worst of it.
Ladies and gentlemen,
(Guantánamo Bay – moving away from the trenches)
Take Guantánamo Bay, the most visible example of our differences. The United States has detained a large number of ‘illegal enemy combatants’ there, in the face of protests from much of the rest of the world. You, the legal experts, have either criticised or defended the legality of such a move, pointing out the flaws in the other side’s legal reasoning. Politicians have done much the same. But we’ve become somewhat entrenched in our views. And this has hampered progress.
Recently, there seems to have been some movement. Only last week, I was in Washington, where I discussed the future of Guantánamo Bay with Secretary of State Rice. I of course restated the Dutch position that the detention facility should be closed. At the same time, I understand the problems the United States would face in doing so.
A policy of harsh confrontation will not bring us any closer to a more acceptable solution. There needs to be a mutual willingness to hear each other out, to agree to disagree on certain issues and to move forward. Keeping the lines of communication open is the only option.
Let’s not lose sight of the fact that there are legitimate security issues at stake here, for all of us. And to preserve our values and freedom we will need to join forces. The nature of modern terrorism is so unusual that straightforward, legally acceptable solutions are hard to come by. At the very least, we can all agree on that. Our discussion should not fall on deaf ears.
Ladies and gentlemen,
(Purpose of this expert seminar)
‘The law must be stable, but it must not stand still’, said Roscoe Pound, an American lawyer and dean of Harvard Law School from 1916 to 1936. Pound could not possibly have foreseen the current situation, but his observation still rings true.
The idea for a seminar of leading experts came from a desire to escape from the entrenched debate we have long found ourselves in. At this stage, we need fresh ideas and creative thinking. Ideas that will build on the strong foundations of international law and cement the cracks in the system, wherever they may be.
You are a diverse group, representing various legal traditions, and various fields of expertise. I’m very happy to see that the ICRC is present, as well as our friends from several NGOs, our human rights watchdogs.
Your challenge over the next several days will be to break free of old patterns and routines. We’ve invited you to the Netherlands to engage in an open and constructive debate on the constraints of international law, and how to overcome them. Is it still possible to fight a 21st-century war with traditional instruments? This question cries out for an answer. I hope this meeting will bring us closer to finding one.
Ladies and gentlemen,
I trust Oud Poelgeest will provide the peace and inspiration you need to engage in constructive and creative deliberations. I challenge you to challenge me – and yourselves.
Thank you, and bon appétit.