One decade has been lost. What about the next one?
Op-ed by Gerald Knaus (for Koha Ditore)
In Athens, spring 2003
One decade ago, in spring 2003, the New York Times published an appeal by four Balkan leaders, the presidents of Croatia and Macedonia and the prime ministers of Albania and Serbia. Its title: “The EU and South-East Europe need each other.” The occasion was a special Balkan meeting of the World Economic Forum in Athens where all these leaders also came together.
I was there too at the time, and I remember both the appeal and the atmosphere in Athens well. In fact, together with my friend Misha Glenny, I drafted it. There was a sense of urgency in the air, and of anticipation. Zoran Djindic, the prime minister of Serbia who had delivered Slobodan Milosevic to the Hague tribunal, had been assassinated by ultra-nationalist members of the Serbian security forces. Croatia had handed in its application to join the EU, the first Western Balkan state to do so. The host of the meeting, Greece, then the EU’s rotating president, pushed hard to get a European commitment to continued Balkan enlargement.
Shortly before the Athens gathering Boris Trajkovski, the president of Macedonia, invited me to draft an appeal that he planned to ask other leaders to co-sign. He knew that the region would receive a better hearing if it spoke with one voice. He was concerned. His own country had recently been on the verge of civil war. Serbia was on the edge, its ultranationalists growing in confidence. The future of Montenegro and Kosovo was not yet settled. Would the EU, following its 2004 enlargement to Central Europe – then just about to happen – get tired of further expansion? The Balkan leaders’ appeal warned: “Until the whole Southeastern Europe is safely integrated into the European Union, the job will not be complete. And until it is, Europe cannot feel secure about itself.”
One decade later, where do we stand? Today, when EU leaders talk about crises in South-East Europe they think of Athens not Skopje, of Nikosia, not Belgrade. Europe does not feel “secure about itself” but it is not the Western Balkans or the threat of renewed conflict that keeps EU leaders awake, literally, at one crisis summit after another.
Montenegro and Kosovo are independent states; the fear of armed conflict in the region has never appeared more distant. And yet, despite these important breakthroughs, it is hard not to regard the years since 2003 as a lost decade for the Balkans. Boris Trajkovski tragically died in an airplane crash in the Bosnian mountains, on his way to submit Macedonia’s own application for EU membership. His country has been stalled for years now by a Greek veto (a threat which did not appear real in 2003 in Athens). Serbia, ten years after the death of Djindic, has still not even opened EU accession talks. Albania is not an EU candidate yet. The Greek foreign minister in spring 2003, George Papandreou, became prime minister, only to be swept away by the Greek economic melt-down. 2003 was perhaps the last success of Greek diplomacy. At the European Union summit on the Balkans in Thessaloniki in summer EU leaders stated their “unequivocal support to the European perspective of the Western Balkan countries. The future of the Balkans is within the European Union.” Croatia used the past decade, opened accession talks, closed them, and is today on the verge of accession. And yet, it is likely that ten years from now in 2023 Croatia will still be the only Balkan country inside the EU.
Rereading the Trajkovski appeal today highlights a further disappointment. It contained a specific proposal: to make EU regional and cohesion funding available to the region, so as to help it catch up economically, rather than fall further behind. The appeal warned that “the long-term stability of Southeastern Europe depends on the region’s economic health, but this does not mean the usual plea for more money … We are committed to opening our markets to our neighbors and to the EU. We have made huge progress in curbing inflation. And we are now greatly encouraged by the proposal by Greece … that the Thessaloniki summit meeting focus on the possibility of applying cohesion and development policies in our region.”
This was a hope that has not come true. The Western Balkans remains one of the poorest regions of Europe. In Serbia today less than half of the working-age population is actually employed. Unemployment levels in Macedonia and Bosnia are disastrously high. Foreign direct investment in the region, which had transformed the economic structures of Central European countries, has fallen to very low levels. And yet, if a focus on underdevelopment in the Balkans has never been more urgent, the EU’s confidence in its ability to bring about convergence and growth in its own periphery has rarely been lower. The 2003 Trajkovski appeal stated that “The EU has a remarkable record of triggering economic success by helping poorer regions — Ireland, Greece, Spain and Portugal have experienced veritable revolutions in social and economic development in the last 20 years.” It is hard to imagine anybody writing like this today, in the wake of bail-outs, bank failures and rapidly rising unemployment in Spain or Greece.
EU leaders no longer worry about war in the Balkans. They are no longer confident in their ability to bring about economic convergence. They fear the weakness of democratic institutions in Romania or Greece. They worry about inadequate regulation in Cyprus or Spain. Given this state of affairs: what arguments can sway them to open their institutions to accept even poorer states, with even weaker institutions, and even worse images among the public and political elites in Berlin, Paris or The Hague?
Perhaps Greece will prepare for its EU presidency in 2014 by changing its policies on Skopje and Pristina. Perhaps Serbia and Kosovo will soon reach an agreement that allows both countries to move beyond their confrontation. Perhaps Albania will manage to hold free and fair elections this summer. Perhaps Bosnia’s leaders will soon be able to put together a credible application for EU accession. Perhaps Macedonia’s leaders will be capable of renewing the national consensus to focus on EU integration that existed in 2003. Perhaps politicians throughout the region will wake up late at night worrying about youth unemployment and the inadequacy of vocational training, about export opportunities and the best way to use scarce public resources for growth, rather than about building statutes or wasting public money on prestige infrastructure of little proven economic benefit. And then, perhaps, a successor of Boris Trajkovski will invite all his regional counterparts to an informal meeting to seriously discuss what they might do together to correct the image of their region, driven by the recognition that the whole region has dropped out of the focus of the rest of Europe.
If Boris Trajkovski would be around today, and would propose drafting a new appeal for Balkan leaders to sign and publish, what could it say? Appeals are expected to end with proposals, a sense of hope, recommendations. But sometimes it is better to resist this temptation. To acknowledge just how steep the wall is that one has to climb. To recognise that before any new appeals to the EU a whole series of steps have to be taken by the region itself. To recognise that time matters; and that April 2013 is another crucial moment which Balkan leaders miss at their peril. I believe Trajkovski would have realised this. Will his successors?
Perhaps this is not a time for appeals at all, but for a blunt and honest recognition: a decade has been lost. The next might be as well. And it is not by formulating words on paper that this can be prevented.
In the Conservative Party manifesto at the last general election the following commitment was made: “To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
A private members bill proposing this was presented and debate in Parliament on 1 March 2013. The debate culminated in a gripping exchange of views between two young Conservative members: Rory Stewart, defending the European Court of Human Rights and the Convention, and Jacob Rees Mogg, proposing for the UK to stop deferring to the Court.
(Rory is a good friend for a very long time, and also co-author of Can Intervention Work; Jacob Rees Mogg I remember well from more than twenty years ago. He was then active in the politics of the Oxford Union Debating Society as a student, while I was a member of the Oxford Union debating team. I disagreed with his views on European institutions then, and do so now, but cannot help but respect his lucidity, honesty and clarity of argument. I just very much hope his views on the ECHR do not prevail in the Conservative Party) .
Excerpts from this debate
Charlie Elphicke (Con)
The February 2011 YouGov poll also found that 55% thought that Britain should leave the ECHR altogether, and that we should have our own Bill of Rights instead, with the British Supreme Court as the final court of appeal. Just 24% thought that we should remain part of the ECHR.
Mr David Nuttall (Con)
Does my hon. Friend agree with that opinion poll finding? If so, why does the Bill not reflect the opinion that we should withdraw from the European convention on human rights?
Britain is in the rather unfortunate situation of embarrassment. We were proud of this Court, and if we wished to tease ourselves a little bit, we could point out the fact that for 40 years we rather enjoyed the fact that the Court told other countries how to behave. We felt—probably intuitively—that the point about the Court was that it would hopefully drag others up to what we rather pompously felt was “our level”.
We became anxious about the Court only once it turned round and started telling us, as opposed to foreigners, what to do—a
difficult and embarrassing situation. We liked the Court when it did a good job of insisting that countries in southern Europe should have habeas corpus and no detention without trial. We became anxious only when the countries that we had cheerfully made accord with British legal norms for 40 years, turned round and tried to demand that we accord with their legal norms on prisoners voting. There is a good reason to feel politically and institutionally, in terms of public opinion, that we do not like that idea and would allow subsidiarity
simply to avoid political embarrassment. However, as I have argued, that is not a moral or legal position; it is purely a question of expediency and convenience, and no moral principle can be based on expediency.
That is, of course, a position that I reject. I cannot accept it because rights are absolute, universal and inviolable. It cannot be the case that one’s possession of rights is relative to the circumstances of a particular culture. It cannot be the case that the mere fact that somebody lives in Saudi Arabia means that they have fewer rights as a woman. It cannot be the case that the mere fact that somebody lives in Taliban
Afghanistan means that they do not have freedom of the press. Those rights, if they are rights at all, rest on one fact and one fact only: the fact of one’s humanity, not the fact of one’s nationality.
In other words, my hon. Friend would say to the European people, “We created the European Court of Human Rights 60 years ago,
and we—Conservative and Labour Governments—spent a long time saying that it was a great force for civilisation and progress. We sent some of our most distinguished barristers and judges to the Court. We celebrated its judgments. We used it to put pressure on eastern Europe and Russia. But now we have decided that it was all a terrible mistake. We will leave, and we will encourage other countries to leave as well. The whole European Court system can collapse, and the consequences for our commitment to human rights, and our attitudes towards eastern and central Europe and Russia, can take their own course.”
I think we do take the view—the rather foolish view—when we set up these Courts that they will never affect us. Let us take the International Criminal Court. Nobody ever thinks that any senior British politician could be hauled in front of it. If that ever happens, we might suddenly decide that we were not so keen on the ICC. I admire the judgment of the Americans who have not joined the ICC because they recognise that if it is justice for one, it is justice for all.
As a strong independent sovereign nation with a history of behaving well going back way before the Magna Carta, I think that we ought to be able to settle our rules for ourselves and should be cautious of setting up courts that are essentially victors’ justice. In setting up the
European Court of Human Rights, what we were really doing was saying, “We have defeated all these nations of Europe. They have had terrible dictatorships before. They are not like good old Blighty, so let us therefore show them how to behave like gentlemen by giving them this Court and this convention.” Then, when they started saying to us, “Well, you, too, must behave like gentlemen”—and of course like ladies in this modern age—we did not like it because we thought it affected and undermined our sovereignty.
We have created an awful lot of things that we do not necessarily still run. After all, we created Belgium, and we do not claim to run that. I think we can fairly argue that our legal system and tradition are fundamentally different from the continental system, and that over generations the common law has built up protections that differ from those in the universal declaration of human rights. Indeed, it was probably a mistake for us ever to sign that declaration.
Rory Stewart (Penrith and The Border) (Con): I begin by praising my hon. Friend the Member for
Dover (Charlie Elphicke) for introducing the Bill. It raises an extremely
important issue which clearly irritates many people in Britain and is very
dangerous. We have got to a situation where human rights are talked about as
though they were some trivial, unnecessary issue. The phrase is connected in
people’s minds with phrases such as “health and safety”. That is a very sad
The question for us today is how we deal with the
problem. My hon. Friend has eloquently explained that we have a problem and has
eloquently given countless examples of things which intuitively make many
members of the British public extremely anxious and extremely unhappy with the
judicial and the political institutions. We should respect that. It might be
tempting to say, as some lawyers do, that the British public are not focused
enough on the moral details and the legal details of the case, and to
trivialise their objections. This would be unfair, because there is obviously
something important, deep and intuitive going on that makes people anxious
about this kind of activity under the banner of human rights.
What is our solution? How do we look at these issues? We have to begin with a sense of
what human rights are. Let me politely challenge slightly the definition of
human rights put forward by my hon. Friend, without calling into question his
overall point, which is that we are now in a mess. It seems to me that we can
begin with a definition of human rights that would state that to say that
somebody has a human right is to say that anyone, anywhere, treated in this
fashion is wronged, and that their possession of that right is not relative to
the costs or benefits of upholding it in any particular case. That sounds very
technical and it sounds pathetic, but it is an important thing to establish at
the beginning of this debate.
Human rights are based on notions of dignity and of inviolability, and they are in
their nature universal. To say that somebody has a human right is a statement
about their moral status. It is not a statement about their nationality. It is
not a statement about their citizenship. It is to say that anyone, anywhere,
treated in this fashion is wronged, and that although there may be a threshold
above which that right could be suspended, below that threshold their
possession of the right is not relative to the cost or benefits of upholding it
in any particular case.
Jacob Rees-Mogg: But surely once there is a threshold, the right is not absolute.
Rory Stewart: My hon. Friend makes a very important point. Let me give an example. The concept of human
rights is based on a notion of human dignity and on a notion
that humans should be treated as ends in themselves, rather than as a means to
an end. In other words, it is a sort of Kantian world view. It has an absolute
view of the world on how people should be treated, but at a very extreme level
there may be a threshold at which we in the Chamber would intuitively feel that
that right could be suspended.
For example, if a child was in possession of information about a ticking bomb that was going to destroy a million people in
a city, we might feel that in that situation it was justifiable to twist the
child’s thumb to find out where that bomb was. In other words, there might be a
threshold, in situations so extreme as to be almost hypothetical, where our
human intuition would be that the right would be suspended, but, below that
threshold, the possession of the right is not a function of the costs or benefits
of upholding it in any particular case.
example, it would not be justifiable in any situation to kill one individual in
order to harvest their organs to save five other individuals.
Rees-Mogg: May I come
back to my hon. Friend on his previous example? He said that a particular act
would be justifiable to save a million people. What about 500,000? What about
50,000? What about 10,000? What about one?
Stewart: That is a
fantastic argument. The argument that I was trying to make was that in the case
of five, 10, 15 or 20 people, our moral intuition is that a particular act is
unacceptable. At another level, at the level of a million, our moral intuition
is that it might be acceptable. This is a very difficult point. The point that
I am trying to make is that we are in a sense deontologists. We are absolute up
to a certain threshold, but there is a certain threshold at which a utilitarian
or consequentialist calculus comes in.
As I said
earlier, if it were a case of one person being killed to save five—in other
words, that somebody could be killed, their organs would be harvested, and
those organs would be used to keep five people alive, that would not be
justifiable. Their possession of their inviolability—their immunity, their
right to life—is not proportional to the costs or benefits of upholding it in
any particular case. There may be—we almost never get anywhere near this kind
of threshold—as a hypothetical, theoretical point, a threshold at which a right
might be overruled by a consequentialist consideration, the one against a
million. But below that threshold, the possession of the right is not relative
to the costs or benefits of upholding it in any particular case.
Jacob Rees-Mogg: I am grateful to my hon. Friend for giving way once again. I think that he rather sold the
pass once he had the child whose thumb could be twisted to save 1 million
people, because if their thumb could be twisted, could their arm be broken? We
are now getting into an argument about what is relative and find that there is
no absolute in this. The same applies to the example of harvesting a person’s
organs: we might not allow it if it would save five people, but what if it
would save 5 million people? Does it then become justifiable?
Rory Stewart: My hon. Friend asks a very important question of moral philosophy. It is a question of moral
intuitions. We are trying to create in our legal and moral systems something
that reflects our common-sense intuitions as humans. We try to interrogate
them, be logical and go back to first principles, but our common-sense
intuition, I feel, is that humans have a moral status, that they are
inviolable, that they have an intrinsic dignity, and that they should be
treated as ends in themselves, not as means to an end.
However—this relates to the case of one against 1 million—we also have a strong moral
intuition that there might be certain extreme circumstances in which it is
justifiable to overrule an individual’s rights. There are different ways we can
deal with that. In the German legal system, for example, it would be argued
that twisting the child’s thumb, although morally justifiable, is not legally
justifiable. The individual responsible would be prosecuted and convicted, but
they would be congratulated on having made the correct moral decision, even if
it was the wrong legal one. In our normal lives, however, such scenarios are
purely hypothetical; we do not come across ticking bombs or children who could
save 1 million people.
In our everyday lives, human rights are, in themselves, inviolable, which is why, as
we consider the case brought by my hon. Friend the Member for Dover, we must
ask ourselves this: what is wrong with the current system? It seems to me that
there are four possible answers to that question, and he has given four
possible answers. One of them, which my hon. Friend the Member for North East
Somerset (Jacob Rees-Mogg) has raised, relates to the question of sovereignty.
The first possible answer on what is wrong with the current settlement on
rights is that there is a problem of parliamentary sovereignty. The notion,
which we could explore in greater depth, is that Parliament is sovereign and
that the European Court of Human Rights, by overruling the decisions of the
British Parliament, is not acting in accordance with the British constitution.
The second argument that could be made is that a question such as whether prisoners
should have the right to vote—a recent and difficult case—is purely relative;
that it is culturally relative. It could simply be argued that the reason the
European Court should not get involved in prisoner voting is not because of
sovereignty, but because the question is culturally relative—I say “tomato”,
you say “tomayto”. These things are purely subjective and based on a particular
cultural or historical context and the Court should not be fussing about them.
The British think one thing, the Spanish think another. There is no way of
resolving it, because it is purely relative.
The third argument is that we are dealing with subjects that are purely trivial, the
argument being that voting rights for prisoners simply do not matter. There
might theoretically be a moral solution to the question of whether prisoners
should be able to vote, but it is a trivial issue and not something the
European Court should be dealing with. Instead, it should be looking at more
The fourth argument, and the one I am tempted to choose, is that this is not
fundamentally a problem of sovereignty, relativity or triviality; it is the
problem of the European Court using the wrong principles to come to the wrong
Permit me to expand on those four arguments in more detail. The first argument is about
parliamentary sovereignty, which my hon. Friend the Member for North East
Somerset dealt with so eloquently. It is of course true that traditionally
within the British system parliamentary sovereignty was supreme. Although Dicey
talks about parliamentary sovereignty and the rule of law, it is quite clear
that what he means by the rule of law is not what Lord Bingham means by the
rule of law. In other words, in the conventional British interpretation, the
rule of law is not something equivalent to the US constitution. It is not an
independent body of law against which parliamentary statutes can be judged. It
was not the case in Britain that an Act of Parliament could be struck down by a
court on the grounds that it did not accord with the rule of law. That notion,
which is of the 15th and 16th centuries, that there was an independent common
law that trumped the actions of Parliament, was put aside. Essentially, for the
past 300 years we have believed that Parliament is sovereign.
Under that interpretation, the European Court cannot possibly be engaged in trying to
subjugate Parliament. At the very best, all it is engaged in is an
international treaty obligation through which the British Parliament has
voluntarily determined that it wishes to accept the rulings of the Court but
can choose to ignore them if it so wishes, and in doing so it would not be
breaking British law but would simply be in breach of its international treaty
So deep is that belief in the British mind that we are now the only advanced democracy
in the world that makes no explicit distinction between constitutional and
normal law. In other words, we have a situation in which, as my hon. Friend the
Member for Dover has so eloquently explained, our constitution shifts
continually over time and, at its worst, “bends like a reed” in the wind. It is
theoretically possible, in a way that it is not in any other advanced democracy
in the world, for a simple majority in Parliament—a majority of the people
gathered here today, for example—to change the fundamental constitution of the
Every other advanced democracy draws a distinction between constitutional and normal
law so that changing the fundamental constitution requires a special procedure.
In northern European countries there is generally a demand for a two-thirds
majority in Parliament, and in southern European countries there is more of a
focus on a referendum. In some countries, such as Italy, there is interest in
an intermediate vote, so the Parliament must be dissolved and the proposed
constitutional change put to the electorate through a general election. That is
all designed to make it very difficult for a Parliament to change the
constitution. The idea—not a British one—is that a Government or Parliament are
temporary, but the people are public, and the constitution exists to protect
the people from the Parliament.
It would be possible to base the entire opposition to the European convention on human
rights on an argument about parliamentary sovereignty, as my hon. Friend the
Member for North East Somerset has, using British constitutional history. But
that argument rests, fundamentally, on political institutions, not morality. It
is difficult to see an ethical or moral case for the notion of untrammelled
parliamentary sovereignty as an alternative to the protection of the
inviolability of the individual’s rights. Indeed, the modern notion of
democracy, which is shared in every other advanced
democracy in the world, combines representation of the majority with protection
of the individual’s rights.
Jacob Rees-Mogg: I do not think that my hon. Friend has fully established the inviolability of the individual’s rights. He has stated it, but he has not established it.
Rory Stewart: My hon. Friend, with enormous eloquence, raises a fundamental philosophical debate. The answer
to his point is that one cannot establish the existence of inviolable rights
unless one accepts two further principles. The first is the equality of humans;
the notion that I, you, Mr Deputy Speaker, my hon. Friend, and indeed someone
we have never encountered who lives at the other end of the Congo, are in all
important respects equal in dignity and in rights. That is an insight of logic
and of human consciousness and a basic commitment to the notion that, although
we might feel that we are special and the only people who exist, as we become
adults we acknowledge that other people, too, are independent moral actors who
possess exactly the same dignity. The inviolability—the rights of the human
being—which my hon. Friend has raised, is derived from that notion of equality
Jacob Rees-Mogg: For the record, I think that the Deputy Speaker is so many leagues above me that I am
not sure my hon. Friend is right. If one takes my hon. Friend’s point about the
equality of humanity—the equality before God that I believe as a matter of
faith—that does not mean that rights are always applied equally. Even in this
Bill, the right to life—that most essential right—is qualified in the case of
self-defence, so rights immediately become relative.
Mr Deputy Speaker (Mr Lindsay Hoyle): Just for the record, I think we are all equal unless there is a long intervention, when I might show a little more power.
Rory Stewart: Rights are indeed qualified, but that does not mean that they are relative. This is an
important distinction. The clause that my hon. Friend mentioned does indeed
establish the right but says that under certain specific circumstances it may
be qualified or overruled. That is not a statement that the right is relative.
It is not a statement that the right to life contained in the European
convention on human rights is purely relative. It is not a statement that,
below the threshold of the qualification, in other words, the specific
circumstances in which a right may be suspended—this is what makes rights quite
different from any other form of moral law—one’s possession of a right is not
relative to the costs or benefits of upholding it in a particular case.
One’s right to life may be suspended at a certain threshold. The thresholds described
in the European convention include those relating to civil disorder and
military law. However, below those thresholds one’s right to life cannot simply
be looked at in terms of the costs or benefits of upholding it in any
Jacob Rees-Mogg: But this right is so clearly absolute. The old Riot Act provided for the militia to start
shooting because of the decision made at that time that the
maintenance of order required immediate use of fatal force. That is no longer
thought to be appropriate. It is therefore about a relative judgment relating
to the balances between the individual and the collective.
Rory Stewart: We need to be very clear about what we mean by “relative”. The notion of “relative” that my hon. Friend is rehearsing simply
says that rights and moral values evolve in a historical context. As he says,
it is simply a matter of historical fact that different cultures at different
times have taken different moral positions. Aristotle, alongside his other
great observations, believed that women and slaves lacked souls. Today we
realise not merely that he thinks one thing and we think another—that it is
relative—but that he is wrong. He is wrong because moral language is implicitly
not relative; it is, in its very structure, absolute. Moral language does not
say, “I don’t happen to like you killing someone, but if you want to kill
someone that is up to you.” In other words, it does not say that killing
someone or not doing so is like you liking chocolate ice cream and me liking
strawberry ice cream; it says that it is wrong and ought not to be done. Moral
language is about questions of “ought”, not questions of “is”.
Jacob Rees-Mogg: But in saying that something ought not to be done one immediately goes on to add “except in certain circumstances.”
Rory Stewart: I will try again. The central point is that the notion of moral obligation—the notion of what
ought or ought not to be done—relies on two conflicting principles that connect
at the moment of the threshold. Those two conflicting principles are, on the
one hand, the notion of the inviolability and dignity of the human being, and,
on the other, a consequentialist or utilitarian argument of the greatest
happiness of the greatest number. Philosophically, the origins of these two
types of argument are entirely distinct. One is a deontological argument that
simply states the dignity of the human being and their inviolability; the other
is an instrumental argument based on consequences or results. Our legal system,
and indeed our moral intuitions, combine these two, which meet at a point of
the threshold. This is what we mean by “ought”. We mean exactly what my hon.
Friend the Member for North East Somerset suggests: that the individual ought
not to be treated like this except in very extreme circumstances above a
certain threshold below which the individual’s possession of the rights is not
a function of the costs or benefits of upholding it in any particular case.
This is important because it is a distinction between a relative position that says “I
can take your life whenever I feel like it on the basis of no moral argument
and no logical position” and a separate position that says “I may not take your
life. There are certain extreme situations in which it could become legally
permissible to do so, but I may not.” The distinction between human rights and
a relative position is a distinction on permissibility—a distinction on what
may be done.
Jacob Rees-Mogg rose—
Rory Stewart: Before my hon. Friend intervenes again, let me be absolutely clear that the distinction is this: when I say that somebody has a right not to be tortured, I am saying that they may not be tortured. I am not saying that they will not be
tortured; there might be a horrible situation in which their Government do
torture them. The statement is a moral statement, not a prediction about the
future. It is a statement about what we morally give permission to do: “You may
not be tortured; you may not be killed.” It is then possible to state certain
threshold circumstances in which our moral intuitions in terms of human rights
shift to moral intuitions in terms of a consequentialist world view in which we
say, “One person might be killed for the benefit of a million.” These are nice
questions of moral philosophy that do not usually come up in our everyday life,
which is based on the dignity and inviolability of the human being regardless
Charlie Elphicke: My hon. Friend is making a very powerful argument in which he highlights a key difference
between civil law and common law. In common law, we would take a utilitarian
approach. If a plane were heading to London with 100 people on board and a
nuclear bomb, we would say “Save the city”, but in Germany, under the civil law
code, people would say, “You can’t touch the plane because of the inviolability
of the right to life.” That is at the heart of some of the problems that I have
been wrestling with in the Bill.
Rory Stewart: The example of the plane is a very good one. It is an exact example of where our moral
intuitions collide. My instinct would be that neither ourselves nor a German
legislature would be comfortable with the decision either way. These are
terrible, terrible decisions involving two very deep moral intuitions. The
first of those is that individuals should be treated as ends in themselves and
not means to an end. As my hon. Friend so rightly points out, the German
supreme court holds that a plane could not be brought down in those
circumstances because it feels deeply that that would be to treat the people on
it as a means to an end rather than an end in themselves. In effect, it would
be doing to them something similar to killing one person in order to harvest
their organs to benefit five others. The calculus is that five having benefited
is not enough to outweigh the harm done to one. That is an important moral
However, my hon. Friend is correct to suggest that in the end most of us would disagree
with that notion. I personally would disagree, as would, presumably, my hon.
Friend the Member for Dover. In a situation of that sort, where 1 million
people are going to be killed by an atom bomb, another deeper, stronger moral
intuition arises which we often describe in terms of common sense but is in
fact a utilitarian calculus—that there is a certain threshold of absurdity beyond
which the protection of the rights of the individuals in that plane no longer
makes sense. My hon. Friend the Member for North East Somerset has been very
good at pointing out the contradiction that these are two separate
philosophical principles, and at raising the question of where the threshold
comes in. The terrible judgment that a politician would need to make in that
situation is not one that can be resolved except through a deep understanding
of the particular facts of an individual case.
Jacob Rees-Mogg: I am grateful to my hon. Friend for giving way; I
will try to make this my last intervention. Once we accept the threshold, it
becomes fundamentally arbitrary and merely a matter of arguing where it should
be set. Therefore, the question is of the legitimacy of who sets that
threshold—whether it should be the Queen in Parliament or a foreign court.
Rory Stewart: There is a disagreement here and it is not one that we can paper over. The question is:
where should we put the weight of sovereignty? How important is sovereignty?
Does sovereignty confer some form of immunity? Is there some magic in this
Chamber that allows the legislators in it to do whatever they want? Is it the
case, as Lord Hoffmann suggested in his judgment, that if this Chamber wished,
it could simply flout human rights? Is that a statement about political fact in
institutions, or is it about morality? Do we think that it is simply a fact
that this Parliament could do whatever it wants, or do we think that this
Parliament ought to be able to do whatever it wants? On this is based our whole
conception of democracy.
Those who feel that this Chamber not only could, but ought to be able to do whatever it
wants are basing their argument on one principle only, which is the principle
of majority representation. Where I suspect there may be a disagreement between
myself and my hon. Friend the Member for North East Somerset is on the notion
that democracy is based not on one, but on two principles—majority
representation and the protection of minority rights—and that, in the absence
of the second criterion, we cease to be, in the full sense, a democracy.
This is a very difficult argument to make, because in this country we have every reason to be proud of the performance of this
Parliament. Although theoretically, constitutional anxiety leads us to believe
that this Parliament could do truly barbarous things, as a matter of fact it
has not. In fact, consistently this Parliament has shown itself very respectful
of the unwritten laws of the British constitution. When Parliament has
attempted to fundamentally change the constitution of the United Kingdom
through a simple majority in the House of Commons—as, indeed, it did with the
proposal to abolish the House of Lords—it refused to take that opportunity. It
backed away from it. Parliament’s reluctance, innate conservatism and caution
with regard to issues relating to the constitution have meant that, from 1911
to the current day, people pushing for a written constitution or more formal
constraints on the power of Parliament have not won.
That is good and it shows two positive things. First, it shows the important principle
of common sense. Everyone in this Chamber agrees that we do not want to live in
a world of technocrats. We like the fact that the British public have a say and
that their common sense permeates this Parliament. At our best—we are not
always at our best—we are a lens that connects the Executive to the voting
public. We act as a mediator between public opinion—the sentiment, imagination
and culture of the British people—and the laws passed in Parliament. Nobody in
this Chamber wishes to pass to a world where we vest our power in technocrats
or experts, such as a Mario Monti-type figure with great insight, who think
they know what is best for the people. Our unruly common
sense means that the public have tended to respect their landscape, to
challenge the Government on, for example, wind turbines, and to refuse to
co-operate—in a similar way to that in which the French public occasionally
refuse to co-operate on farming—with the theoretical ideas of experts and
The second reason to be proud of the sovereignty of Parliament is that it reflects a culture, but the question for my hon.
Friend, who is one of the great supporters of untrammelled parliamentary
sovereignty is this: do we have the confidence that the unwritten rules, the
culture of this House and the deep understanding of the history of the British
constitution—which meant in 1911 that Members of Parliament were very cautious
about changing it—still hold, or did our vote on the House of Lords Reform Bill
take us close to the brink? Is it possible that we are suffering from
collective amnesia and that one can no longer say that the British Parliament
is so deeply entrenched in its constitutional history that it can be guaranteed
never to change fundamentally the British constitution?
If we are moving into a world that takes us into that danger zone, I believe that we need
to follow the example of every other advanced democracy in the world and
separate constitutional and normal law, and say that, in order to make a
fundamental change to the constitution, which would affect the rights of
citizens—this is why this is relevant to the European Court of Human Rights—we
must ensure that special procedures are followed. The special procedure that we
have tended to develop through precedent over the past 40 years is, of course,
a referendum. We may not want a referendum to be the fundamental means by which
we change the constitution. We may want to adopt a different procedure, such as
a two-thirds majority or a free vote in the House—which, of course, is what the
previous Government used to deal with the issue of the House of Lords—but we
are moving to a world in which we need a proper procedure.
The reason why that is relevant to this debatee is that the question of parliamentary sovereignty and its relationship with the
European Court is the nub of the issue. The argument against the European Court
cannot simply be that Parliament is sovereign, absolute and always right and
that it should never be challenged. We have developed a doctrine of
international intervention with regard to the notion that sovereignty does not
confer immunity—that the rights of a country’s individual citizens can trump
the sovereignty of a Parliament.
The second argument—moving on from sovereignty, with apologies for having paid so much attention to it—is about the question of moral relativism, although my exchange with my hon. Friend may have covered this issue adequately. The idea
of moral relativism states that the question of prisoners voting is purely
relative. I like chocolate ice cream, Mr Deputy Speaker, but perhaps you like
strawberry ice cream—that is a question of taste, not of moral decision. The
Spanish believe that prisoners should have votes and the British do not, but to
argue that such things are purely relative and that there is no way of
resolving them is very dangerous, because all these questions about rights are
fundamentally issues of morality. Moral language is a statement about what is
right and what is wrong—what we ought to do and what we ought not to do. It is
not a statement of personal taste akin to saying, “I like red, you like blue, and that’s the end of the discussion.” What one says is,
“You are wrong.” We must believe it is possible to resolve the question of who
is right and who is wrong on the issue of prisoners voting and to do so through
moral investigation and debate.
Charlie Elphicke: I thank my hon. Friend for giving way; he is being very generous in taking interventions. I would say that the issue is
slightly different. The Spanish think that prisoners should have the vote and
the British do not, but the error is the one-size-fits-all approach taken by
the European Court. There should be an acceptance that different countries will
arrive at different solutions. A universal morality should not be thrust on
Rory Stewart: The powerful argument made by my hon. Friend is, indeed, the same as that made by Lord
Hoffmann, who says that universal rights, such as those under the European
Court of Human Rights, are simply aspirational and that any universal code is
aspriational, but it is always national in its application. The argument made
by Lord Hoffmann and my hon. Friend is that the European Court of Human Rights
and the convention are purely aspirational: they are a good way of encouraging
people to behave better, they are a good way of doing political lobbying and
they are a good way of applying pressure, but in their application, human
rights can only be national. The notion is that human rights are relative to a
particular historical or political context. In the view of Lord Hoffmann and my
hon. Friend, but not in my view, the question of whether prisoners should vote
should not be determined by moral debate because it is specific to a particular
historical or national context. For them, the real answer to whether prisoners
should vote depends on the difference between Spanish culture and British
That is, of course, a position that I reject. I cannot accept it because rights are
absolute, universal and inviolable. It cannot be the case that one’s possession
of rights is relative to the circumstances of a particular culture. It cannot
be the case that the mere fact that somebody lives in Saudi Arabia means that
they have fewer rights as a woman. It cannot be the case that the mere fact
that somebody lives in Taliban Afghanistan means that they do not have freedom
of the press. Those rights, if they are rights at all, rest on one fact and one
fact only: the fact of one’s humanity, not the fact of one’s nationality.
Charlie Elphicke: Lord Hoffmann said that human rights are universal in their abstraction, but national in
their application. I think that what he was saying was that one-size-fits-all
does not work and we need room for what used to be called subsidiarity, but
which in this debate has been called proportionality or the margin of
appreciation. The margin of appreciation is central to getting the right
settlement that all countries can live with.
Rory Stewart: My hon. Friend brings us neatly to the third question on the Bill: the question of
subsidiarity and triviality. on from the big questions of sovereignty and meta-ethics, the central argument
that my hon. Friend has made, which is an important one, is fundamentally
about triviality. Lord Hoffmann may be suggesting that although at a
theoretical level it may be possible to resolve whether prisoners should vote,
as a practical point, the issue does not really matter. It is subsidiary—that
is, it should be left to individual countries—because it is just too disruptive
to the international system to try to impose, as my hon. Friend puts it, a
one-size-fits-all approach. The argument is that trying to resolve the issue of
whether prisoners should have the vote is disruptive to the international
That is a strong intuitive argument and one that we might have a lot of sympathy with in this House as politicians. It is
obviously not a moral argument, because Lord Hoffmann’s argument does not hold
water as a moral argument. It cannot be the case, as a question of ethics, that
nationality is the prime determiner of one’s rights. However, that may be true
as an issue of practicality. We might want to allow some flexibility in the
process for the sanity of the international system. Although that is really
tempting, the reason why we should not go down that path is twofold.
For a legal system, the question of triviality cannot be relevant. It is not possible
for a judge to determine a case simply on the basis of whether they think that
the question of prisoner voting is important in the grand scheme of things. The
judge is there to make a decision on the basis of the law. That is why we often
get frustrated and often find the system very peculiar.
The classic example, which is something that I hate about the European Court of
Human Rights, is the case that was brought by the man who did not want to give
his name when he was caught speeding. That case went all the way up through the
courts system. The man argued that he should not have been obliged to give his
name when spotted by a speeding camera because he had a right of privacy and a
right to silence. He objected to the fact that he was going to be fined for
giving his name.
Throughout the process, the courts did not say, “This is a trivial issue. It is a minor
speeding fine, so we’re not interested.” The case went all the way up to Lord
Bingham who, at great length and with enormous politeness, explained to the
gentleman that his right to silence did not extend to not giving his name in
relation to a speeding fine. At that point, the gentleman applied to the
European Court which, perhaps to the delight of speeding motorists, seemed for
a moment in a majority judgment to say that the man should not have to give his
name because of the right of privacy.
That case shows that the triviality argument does not operate and, much more importantly,
that judges are not politicians. It is not for a judge to determine whether it
would be politically disruptive or inconvenient for a particular judgment to be
passed. They may intuitively, in the back of their mind, be influenced by what
they have read in the newspaper and they may be anxious that if they pass a judgment
that is objectionable to the public, it will undermine the legitimacy or
reputation of the judiciary, but those cannot be formal considerations in their
decision. It cannot be that the European Court, which by its very nature has
sanctions, can consider whether making a certain decision is disruptive to the
international system or undermines the legitimacy or reputation
of the Court itself. Those cannot be the terms on which moral or legal
decisions are made, although we may often feel that they are the terms on which
political decisions should be made.
A good example of that is the question of gay marriage, which has been a controversial
issue in this Chamber. It makes perfect sense for a political Chamber to say,
“This is a philosophical question and we feel, for political reasons, that this
is not the appropriate moment to raise it because it would cause too much
disruption and unhappiness.” However, at the point at which the issue is raised
and put to the vote, it no longer makes sense to talk purely in terms of public
opinion and disruption, particularly in a case that relates to morals or
ethics, and it becomes necessary to look at the merits of the case and examine
The argument for why the European Court should not get involved in prisoner voting
therefore cannot be that the issue is trivial or disruptive. The reason why
there must be subsidiarity and why there cannot be a one-size-fits-all approach
cannot, from a moral or legal point of view, be that it causes inconvenience.
Before I move on to the fourth and final part of the argument, I will go over the three
arguments about the European Court that we have considered and that do not hold
water. The first is the argument that the European Court should not exist
because Parliament is absolutely sovereign. As a moral principle, as opposed to
a statement of constitutional fact, that is objectionable. The current
evolution of British culture and the behaviour of the British Parliament over
the past 20 years suggest that it would be dangerous to put the entire reliance
for our constitutional system and the protection of rights on the individual
decisions of a temporary majority in a sovereign Parliament.
The second argument that we have rejected is that questions such as prisoners’
voting rights are purely relative, that there are no moral absolutes and that
such questions cannot be resolved in a philosophical sense. The contention is
that moral arguments are simply a question of, “You think this and I think
that,” and there is no way of resolving them, as if they are just a question of
taste, as in the trivial example that I gave of one person liking chocolate ice
cream and another liking strawberry ice cream. No; we believe very strongly
that moral arguments are different from arguments of taste. There is an answer
to these questions.
There is therefore an answer to the question of whether prisoners should have voting
rights. It is based on whether we believe that the dignity and inviolability of
the prisoner’s status as a moral actor—as a human—requires them, always and in
all circumstances, to have a vote or not. Personally, I do not find that
argument convincing. A prisoner is not entitled, as a fundamental element of
their human dignity and inviolability, to a vote in all circumstances. That is
not, however, simply a question of taste. It is a question of moral argument.
The third argument we are rejecting is that it is simply inconvenient to talk about such
matters and that it disrupts the international system. That is a tempting
argument, because we set up the Court; David Maxwell Fyfe essentially drafted
this document and steered it through. Britain is in the rather unfortunate
situation of embarrassment. We were proud of this Court, and if we wished to
tease ourselves a little bit, we could point out the
fact that for 40 years we rather enjoyed the fact that the Court told other
countries how to behave. We felt—probably intuitively—that the point about the
Court was that it would hopefully drag others up to what we rather pompously
felt was “our level”.
We became anxious about the Court only once it turned round and started telling us, as opposed to foreigners, what to do—a
difficult and embarrassing situation. We liked the Court when it did a good job
of insisting that countries in southern Europe should have habeas corpus and no
detention without trial. We became anxious only when the countries that we had
cheerfully made accord with British legal norms for 40 years, turned round and
tried to demand that we accord with their legal norms on prisoners voting.
There is a good reason to feel politically and institutionally, in terms of
public opinion, that we do not like that idea and would allow subsidiarity
simply to avoid political embarrassment. However, as I have argued, that is not
a moral or legal position; it is purely a question of expediency and
convenience, and no moral principle can be based on expediency.
The fourth and concluding argument concerns what we should do about the European
Court. We should not give up the notion that there are inviolable and universal
human rights, or that the sovereignty of Parliament must respect the rights of
the individual. We should not give up the notion of moral absolutes or accept
the notion that political expediency can override moral or legal principles. We
must return to the fundamentals and challenge the moral and legal argumentation
of the European Court, and we would do that in exactly the way that my hon.
Friend the Member for Dover has so eloquently explained.
From my point of view, my hon. Friend is not producing a measure that would lead us to
leave the European convention, but he points out that the Court’s current
operations are resulting in absurd, surreal consequences. The way to address
that problem is to look again at the European convention on human rights, and
consider how it was drafted in 1950, what ingredients lie within it and how
much latitude that gives the Court. A Court that one year ago had 100,000 cases
waiting to be heard—an absurd number—needs to say no to far more cases. The
Court must understand that the 1950 drafting of the convention allows it very
little latitude, and that it is currently engaged with many issues that are
outside the purview of the original convention on human rights.
A classic example of that is prisoners voting. The point is not that the question of
prisoners voting cannot be resolved legally or philosophically but that it
cannot be resolved on the basis of the European convention on human rights.
Nothing in the convention provides sufficient detail or cogency to allow a
judge, purely on the basis of the nostrum of a democratic society, to derive
from that vague and abstract principle the conclusion that prisoners should
have a vote. Such a thing could be done, but not by the European Court. It
could be done by the British Parliament or by a British court, because it
requires a much deeper background of legislation. In our case it would require
the corpus of the common law; in Spain it would require the corpus of its
continental legal system. To reach such a conclusion requires far more than the
brief statements in the European convention on human rights.
That does not mean that the European convention on human rights is useless—far from it.
The convention with its fundamental principles is an incredibly useful, dynamic
document that is unambiguous and clear—as it should be—on questions of torture.
It makes every sense for the European convention on human rights and the
European Court to rule on the protection of fundamental political rights of the
sort contained in that document. It is not that torture, genocide, arbitrary
arrest and arbitrary imprisonment are the only issues that matter. Many other
issues of human rights also matter, but those are the only issues covered in
the convention and on which the Court should be ruling. That is why the
Brighton declaration brought together by this Government as the President of
the European Council—the statements by the Secretary of State and the Lord
We require fundamental reform of the European Court. We must radically reduce the
number of cases it deals with and clarify its legal and philosophical basis to
determine on which cases it should and should not rule. The notion of
subsidiarity, which was raised so eloquently by my hon. Friend the Member for
Dover, is not a moral, legal, or philosophical principle but concerns the
ingredients of the European convention on human rights. Those things are
subsidiary because they are not covered in that document. We should not lose
confidence in the notion of rights and in a convention that we were proud to
create and which was created by a Conservative Member of Parliament and Lord
David Mowat (Warrington South) (Con): My hon. Friend is giving an eloquent defence but the logic of his position
seems to be that we should not have a European convention on human rights or a
Court, but rather a world convention. Is that his position?
Rory Stewart: That is a telling intervention. The answer is that we have signed and ought to respect
and uphold the United Nations universal declaration of human rights. It exists; we are signatories to it.
Bob Stewart: We have signed up to it.
Rory Stewart: Yes. As my hon. Friend points out, we are signatories to that declaration of human rights. We
were the first signatories to it in 1948 and it is the precursor to the
European convention. We have signed it and we should respect it. Should we
establish a court to uphold the information in the UN universal declaration of
human rights? I think we should be very cautious of doing that. The UN
declaration includes many elements that would be difficult for a court to rule
on and that would be difficult to apply to the 200 members of the United
Nations. For example, the declaration includes a right to paid holiday. That is
difficult to imagine in Chad, Mali or the Congo. It is difficult to imagine
what would be involved if somebody in a developing country who lives on a
dollar a day asserted their right to a paid holiday, and it is therefore difficult
to imagine an international court that would rule on that kind of information.
Nevertheless, in certain circumstances we should respect the UN declaration and international
courts. A classic example is the International Criminal Court or the International
Criminal Tribunal for the former Yugoslavia.
Britain is a signatory to all cases with the ICTY and the ICC and upholds the rulings
of those courts that deal with crimes against humanity. To return to the
beginning of the argument, we sign up to such bodies because we accept that
crimes against humanity can be committed anywhere by anyone in any
circumstance, and the sovereignty of an individual Parliament or country does
not trump an individual’s rights to be exempt. Not even the sovereignty of this
Parliament. Not even this Parliament ought to be allowed to commit crimes
against humanity—to put the most extreme situation. We sign these things at
international level, and we constrain the power of our Parliament, as we
should, in those specific cases.
In other cases, the moral, legal and philosophical arguments are better conducted in the
Bob Stewart: Is it not the case that the International Criminal Court and the International Criminal
Tribunal for the Former Yugoslavia try crimes against humanity and crimes of
genocide only if there is no way that a national jurisdiction will deal with
the problem? Only then does it go to the ICC or the ICTY.
Rory Stewart: That is a fundamental principle, and my hon. Friend is correct to raise it. In the
international system, we have an important conception of state sovereignty. The
only argument being made today is that state sovereignty is not absolute; it
does not trump everything else, but to return to the language that my hon.
Friend the Member for North East Somerset does not like, up to a certain
threshold, state sovereignty obtains. Up to a certain point, there must be the
opportunity to attempt to resolve the situation domestically, but at that
point, when the state concerned has failed to deal with crimes against
humanity, it is not only legal under the international system but morally
correct for an international court to overrule the national Government.
David Mowat: May I press my hon. Friend further on his position on a world court of human rights? The logic
of his position seems to be that the scope of the European court should be
extended as far as possible, given that these things are absolute and not
relative, as he says.
Rory Stewart: That is a very interesting and important question. The answer of course is that when David
Maxwell Fyfe, of whom Conservatives should be proud, and Hartley Shawcross, of
whom the Opposition are equally proud, brought the convention together, the
objective was to spread it as widely as possible. Indeed, for more than 60
years the British Government have had as their policy an attempt to push it as
far as possible, which is why the European convention now extends a long way
beyond the boundaries of the European Union and takes in countries such as Russia.
That is because we believe that the ingredients of the European convention on
human rights are basic, inviolable and universal dignities. If anybody wishes
to sign up to the European convention, we absolutely encourage them to do so.
Any country that wishes to join, to sign up to the declarations and to be held
to the high and exacting standards contained in that document, should be
welcomed, but if the Court is to survive at all it
needs to narrow its focus drastically; that is where my hon. Friend the Member
for Dover is absolutely correct.
If the Court is to have any credibility or legitimacy in the long run, it cannot continue contributing to a situation
where the British public end up feeling that human rights are trivial, that
human rights are an excuse, that human rights are a charter for triviality,
that human rights have the same relationship to real rights as “Health and
Safety” does to real health and safety—in other words, that it is a factory for
lawyers and insurance claims. To return to its fundamental principles, the
Court needs to remember what it is there to do, and it is on that point that I
really will conclude.
The European convention on human rights is not something that we as a party should
set aside by suggesting that human rights do not exist. Human rights do exist,
and all of us are proud to live in a society where our rights have been
protected in different forms since Magna Carta. We did not use the words human
rights until the French began to popularise them in the late 18th century;
until then it was a specialist phrase that nobody in this country would have
used. Indeed, it was not until after the second world war that anyone in this
country started using the words human rights, but we have had the basic notion
of the rights of man for 800 years. It is that the human is dignified and
inviolable; certain things may not be done to that individual; anyone anywhere
who is treated in that fashion is wronged; their possession of that right is
not relative to the costs or benefits of upholding it in any particular case.
The European convention, drafted by us, enshrines those notions of basic decency—of
equality of humanity and of inviolability. The problem with it is not the
sovereignty of Parliament. The problem is not that rights do not exist. The
problem is not that it is politically too complicated. The problem is that we
have allowed the Court to stray from its fundamental job. It was given a very
narrow task and a very narrow focus, which, broadly speaking, was to deal with
crimes against humanity. We should therefore join my hon. Friend the Member for
Dover in strongly demanding that the case load of the European Court is
radically reduced, that the principles of subsidiarity are radically increased
and that the Court ceases to get involved in situations that in principle,
ethics or law, it is not competent to handle.
The man emerging from the metro in Saint Germain-en-Laye on this cold Sunday afternoon in February is ebullient, unbowed and confident about the future of his country. This is remarkable, for my visitor is the political activist and writer Emin Milli, who had just emerged (again) from prison; the country in question is Azerbaijan.
Our paths first crossed when ESI worked on and then published in March 2011 a report about him, his friend Adnan and other members of Generation Facebook in Baku. The report described the emergence of a new generation of dissidents in Azerbaijan, and the strategy of repression used by the regime.
Emin Milli, a blogger, writer, activist and former political prisoner protesting
against violence against conscripts in the Azerbaijani military in Baku, 12 January 2013
Since Generation Facebook we have been in touch regularly. In January this year we met in Budapest during a seminar discussing the future of election observation missions in Europe. We then spent a day in Rumeli Hisari in Istanbul, discussing how the Council of Europe might help set free political prisoners across Europe. For Emin this is also a personal issue. He had spent 16 months in jail in 2009 and 2010. Our discussion was in the shadow of a forthcoming vote we were both watching carefully.
Emin Milli in Rumeli Hisari, Istanbul, January 2013. A few days later he will again be arrested after peacefully demonstrating against police violence.
I ask Emin how he felt when he heard about the outcome of this debate on his country. He notes:
“When I heard about the vote against the resolution what came to my mind, strangely, was the fall of the Roman Empire. I thought: it is amazing how one small authoritarian regime can bring the proud tradition of democracy in Europe down in the Council of Europe.”
Three days after this vote Emin was arrested again following peaceful demonstrations. He spent two weeks in jail, together with others who had taken part in the demonstration. Emin tells my young daughters that prison offers a lot of time to read and that it helps to lose weight. Emin also explains that this time in prison he reread Les Miserables, one of the great novels of the 19th century. I tell him that Victor Hugo once lived near Saint Germain-en-Laye in the West of Paris, where we are now. Hugo was a visionary himself. He did, after all, tell the 1849 (!) Peace Congress in Paris:
“A day will come when the only fields of battle will be markets opening up to trade and minds opening up to ideas. A day will come when the bullets and the bombs will be replaced by votes, by the universal suffrage of the peoples, by the venerable arbitration of a great sovereign senate which will be to Europe what this parliament is to England, what this diet is to Germany, what this legislative assembly is to France. A day will come when we will display cannons in museums just as we display instruments of torture today, and are amazed that such things could ever have been possible.”
Compared to this vision, is the idea of the Southern Caucasus one day joined together with the rest of democratic Europe any less realistic? Is it less realistic than imagining in 1983 Poland joining the European project or in 1993 Croatia being a part of it? Hugo spoke those words before the Paris Commune, the two World Wars and the Cold War. He spoke them as an optimist – but given the European Union of today a farsighted rather than foolish one. I am certain that Hugo would have liked the vision and determination of Emin’s generation in Baku. As Hugo put it at the end of Les Miserables:
“… a progress from evil to good, from injustice to justice, from falsehood to truth, from night to day, from appetite to conscience, from corruption to life; from bestiality to duty, from hell to heaven, from nothingness to God. The starting point: matter, destination: the soul. The hydra at the beginning, the angel at the end.”
The hope for peaceful change
What is the hydra in Azerbaijan today? It is the authoritarian and oligarchic regime of president Ilham Aliyev. Is there an Angel? It must be the hope of a peaceful transition to democracy.
We sit down and Emin begins to explain:
“Before I did not see a chance for a democratic, non-violent and managed transition, as opposed to violent, anarchic and chaotic change. Now I can see a chance for this, even this year.”
Emin arrested again, following peaceful protests against police violence on 26 January 2013
The key for any breakthrough is for new and traditional opposition groups to come together around a common platform, program of change and a common candidate in upcoming presidential elections.
“There are of course the old opposition parties like Musavat and the Popular Front, but they are no longer alone. There are also now intellectuals who defected from the regime and who are popular in Azerbaijan, members of the new Intelligentsia Forum: scientists like Rufiq Aliyev, who is a candidate for a Nobel Prize, or film makers like Rustam Ibrahimbegov, who won an Oscar. They have now broken with Aliyev. There are many Western educated young people who have returned, like Harvard-educated former political prisoner Bakhtiyar Hajiyev. There are other opposition parties with serious programs, such as the Republican Alternative of Ilgar Mammedov or Erkin Gadirli. There are the young activists of the facebook generation.
In the past it was easier for the regime to discredit the opposition, but this would be hard in the face of a common opposition front. This is a very different scene from the one we had before elections in 2010, 2008 or 2005.”
But will there be a joint platform for elections in 2013?
“Different political groups and social forces seem to realize now that coming up with a united political platform for change may be the key game changer in Azerbaijan this year. This would mean having one joint presidential candidate and a joint political platform with a clear agenda for a transition government, which would lead Azerbaijan from a presidential monarchy to a parliamentary republic.“
Emin’s cautious optimism is also based on the new media revolution in Azerbaijan. He sees many concrete signs of the impact of this ongoing revolution:
“Opposition newspaper Azadliq sold 200,000 hard copies during the national independence movement in the late 80s. It went down to selling just 10,000 copies. This year in January 2013 some news put on the website of Azadliq were read by more than 200,000 people. So there is a bigger public sphere, which has expanded enormously.”
“The reason I am optimistic is the monopoly of information once held by the government in Baku is corroding, even beginning to crack. First, you see this on YouTube, as countless of videos capturing violence and abuse of power circulate. The Internet has lowered the barriers to entry
“Furthermore, the rise in satellite TV broadcast from Turkey are spreading these videos. These YouTube clips expose the regime as a criminal gang. They show threats, blackmail, the open selling of parliamentary seats … and how even members of the elite treat each other.”
“Hundreds of thousands now watch Youtube videos. These include the shocking videos put online by the former rector of Baku university Elshad Abdullayev in conversation with various important members of the regime. Elshad Abdullayev taped many of his conversations over many years; having fled Azerbaijan he is now putting them online. These tapes have exposed just how corrupt and criminal the regime is. People knew this, but these videos made the truth obvious, and create a lot of silently rising anger and outrage: they see members of parliament selling seats for more than a million Euro. Hundreds of thousands also watch them broadcast from Turkey on satellite TV.”
“These clips expose the regime as a criminal gang. They show threats, blackmail, the open selling of parliamentary seats … and how members of the elite treat each other.”
“There is also a growing sense of disenchantment with the regime all over the country. Various social groups shop-keepers, relatives of people serving in the military, local people in different provinces of the country – have started to protest in numbers and ways not seen before within one month. In January 2013 I saw groups I had never imagined would go on the streets to protest. Shopkeepers closed a road and protested against the owner of one of the biggest shopping malls in Azerbaijan who wanted them to pay more rent. Then there were the protests on 12 January against violence against conscripts in the military.”
“a repeat of protests in another region, Guba, last year. There local people were so frustrated with their living conditions that they did not see any other means to communicate their frustration than violence. In Guba in 2012 they burned down the house of the governor, who was then fired by the president. In Ismayili the hotel and part of the governor’s house were again burned down.”
There is a possibility of such protests spreading:
“People protested and burned the house of governor in Guba, then he was fired. People in Ismayilli burned hotel and house of the governor, then he was fired too. What sort of message does this send to people in other regions? The only way the government respects the people is when houses burn? This is no way to govern the country. Firing a couple of governors will not solve the problem of feudal style governance in the regions either. People want to be heard.”
“These protests are out of control of the opposition, which is not even allowed to go to the regions.”
The Aliyev regime is clearly nervous about all this:
“For the first time in a very long period the regime moved troops into regions of Azerbaijan. The pictures of the stand-off reminded people of the days when in 1990 Soviet troops entered Baku. Now again hundreds of people were detained, arrested, tortured. And in spite of this very violent reaction of the state it did not stop any of the following protest actions.”
The president has also appeared unnerved:
“The first reaction was that the governor will stay, that these were just some local hooligans. Then a couple of weeks later Ilham Aliyev goes on television and threatens governors and ministers that their sons will be put in jail if they misbehave, that if they curse or insult people they will be jailed and their fathers will be fired.”
At the same time the regime is clamping down hard in light of the upcoming presidential elections in October 2013:
“For the first time in recent Azerbaijani history a presidential candidate was put in jail during an election year! This is a different level of nervousness than before. Ilgar Mammedov from the Republican Alternative opposition party is a presidential candidate. He went to Ismayilli and was jailed, accused of inciting events. This is absurd: he went there after everything was over. Isa Gambar, another presidential candidate, was prevented by a mob and police from entering Lankaran in the South of the country. Ali Kerimli, another potential presidential candidate and opposition leader does not have a passport for seven years now, and he also does not have an office.”
“The government has tried to close more political space. It started clamping down on the opposition. This explains this rise of unorganized, sometimes violent, unpredictable revolts. If these developments are ignored by the international community we might end up with situations similar to those in the Arab world.”
Emin sees an opening for a different kind of opposition under conditions of general dissatisfaction, leading to a gradual transition:
“This is the moment for opposition groups and leaders to come together in a united front, to direct frustration and outrage of the population in a responsible way. The opposition must unite and organize the transition to a parliamentary republic. The problem in 2003 was that the opposition was split. It was not united, not on the street, and not politically. Until now it has never united.”
“A united opposition sharing resources, sharing energy, with a message of unity, thus giving real hope to people could be a historic moment in our country. This means presidential elections this year in October might be very interesting. There are symptoms of real change in the air. It all depends now on how internal and external actors behave in this situation.”
Of course, much can go wrong and even more would have to go right for any of these optimistic scenarios to come about. There still is no united opposition. There is always the potential for further repression. So far there have never been free and fair elections in Azerbaijan, so it is unrealistic to expect 2013 to be different. There are likely to be further arrests. Standing up for democracy and human rights in Baku is a high risk strategy still, and any rewards are highly uncertain.
All of this makes it even more important what messages outside institutions are prepared to send. So I ask Emin: how does he see the role of external actors? Will they care? Will democratic Europe, will European institutions, do what they can to support a peaceful evolution, based on respect for human rights in Azerbaijan?
“The situation in Azerbaijan may change rapidly. The international community must sternly warn the government that any violent suppression of peaceful democratic change will not be accepted. The challenge is to prevent another Egypt, another Libya. The challenge is to have a peaceful transition like in Central Europe in 1989. We need a scenario in Azerbaijan like the one in Eastern Europe at the end of the 1980s.”
As I see Emin off, next to the former royal castle of Saint Germain-en-Laye, I think again of Victor Hugo, and his universal concern for the rights of the oppressed. As Hugo put it in a letter to a publisher of Les Miserables:
“It addresses England as well as Spain, Italy as well as France, Germany as well as Ireland, the republics that harbour slaves as well as empires that have serfs. Social problems go beyond frontiers. Humankind’s wounds, those huge sores that litter the world, do not stop at the blue and red lines drawn on maps”.
This remains as true today as it was in the 19th century.
A few months ago I visited Macedonia to present EU diplomats, ambassadors, the Macedonian prime minister, the foreign minister and party leaders a slighly revised version of the ESI proposal for overcoming the stalemate in the name dispute between Macedonia and Greece.
I also presented this proposal once again in Brussels, Berlin and in other EU capitals. I gave everyone a paper copy of the revised proposal. Since then it has circulated among EU diplomats.
It would be foolish to be too optimistic that anything can help overcome such a complicated dispute. And yet, there are a number of reasons to be more optimistic this time than in a long while. I remain convinced also that nothing can be forced by outsiders on either party, not now, not later. It will take a compromise that national leaders can present to their publics in both Skopje and Athens as a step forward for their side; and one where both sides retain their leverage until actual EU accession of Macedonia.
Then, earlier this month, the Macedonian weekly Gradjanski reported the following:
“drawing on unnamed diplomats, reported that Brussels was working on a‘date for date’ strategy about the country in December: start of membership negotiations would be announced for next June with Skopje being obliged to deliver by then tangible results on good neighbourly relations (improved ties with Bulgaria and Greece, including essential reviving of the name negotiations). The sources stressed the importance in this context of a constructive response of Skopje to Greece’s memorandum, which would offer ideas, but also pointed at the government being reserved about the plan. The weekly also reported on an upgraded 2010 proposal by the European Stability Initiative that the name issue be resolved in the early stage of membership negotiations but the referendum on the solution take place at the end of the process, i.e. together with the referendum on EU membership. According to Gragjanski, the upgraded document, which is reportedly supported by an influential lobby group in Brussels, foresees for the new composite name to immediately replace the current reference and its wider use to enter into force together with EU accession. Constitutional changes are expected from Skopje in order to accept the new name for international use; the constitutional name will remain official name of the country in its official languages and the use of the adjective ‘Macedonian’ will not be called in question, says the proposal.”
I have since been asked by a number of people to share the new version of the proposal. This then is the latest version in full:
What is needed is a way forward that accepts the bottom lines for Athens and Skopje. This can be achieved through a constitutional amendment in Skopje that changes the name of the country with a geographic qualifier today: to replace Former Yugoslav Republic of Macedonia where the latter is currently in use, allowing Athens to support the start of EU accession talks and to sending an invitation to join NATO later this year or early next year, but which foresees that the change will enter into force permanently and erga omnes on the day Macedonia actually joins the EU.
Such a solution is possible if the following happens:
1. There is active mediation between both sides which focus solely on finding a compromise name for the country with a geographical modifier, dealing with the issues of RM NATO accession and the opening of EU
2. Greece and RM agree on a compromise name, XYZ, with a geographical modifier. This will immediately replace F.Y.R.O.M. wherever that is currently in use in international
3. Greece commits to allow RM to join NATO under this new provisional name XYZ and an invitation to join NATO is extended.
4. RM changes its constitution to say something like this:
“From the day the Republic of Macedonia joins the European Union the international name of the country will be XYZ, used erga omnes in all languages other than the official languages of the country.”
The promised referendum on EU accession at the end of the negotiation process becomes thereby de facto the real referendum on the name issue (there was no referendum for F.Y.R.O.M., and until accession the new name is used only in place of F.Y.R.O.M.).
Leaders in RM replace one name their citizens do not like (referring to a state that has disappeared decades ago, Yugoslavia) with another name they do not like, both used in the same way.
Neither side loses leverage in the future. If future Greek governments block EU accession of RM or make additional demands judged unacceptable in Skopje this would also delay the entering into force of the core provision of this compromise. Greece shows its EU partners that it remains actively in favor of Balkan enlargement. Greece also keeps its leverage until the very end of the accession process
A few days ago ESI put a short excerpt of the new documentary on the transformation and EU accession of Croatia on our website: Twilight of heroes. Croatia, Europe and the International Tribunal. You also find it here. (We will show the complete film in English in London next week; and in Berlin the week after).
The film tells the story how Croatia’s EU aspirations and the demand that some of its former generals be handed over to the ICTY to be put on trial for alleged war crimes triggered the escape of Ante Gotovina, and a man hunt that finally led to his arrest in Spain in 2005. It is a dramatic story, which ended with Ante Gotovina being sentenced to 24 years in prison by the first instance court. And it is not over: in a few days the appeals court will announce its judgement in this matter.
Some of the protagonists in the ESI documentary: Vesna Pusic – Ivo Sanader – Ante
Gotovina – Carla del Ponte – Stipe Mesic – Ivo Josipovic
It is against this background that Luka Misetic, the lawyer of Ante Gotovina, reacted to the excerpt from our film on his blog. He accused ESI of distorting facts, and writes that he was “stunned by the level of factual inaccuracy in the film.” He posted on the ESI facebook page:
This is a charge which deserves an answer. Luka Misetic writes on his blog:
Thursday, November 8, 2012 European Stability Initative Distorts the Facts about General Gotovina
The European Stability Initiative has recently broadcast a film about General Gotovina entitled, “Twilight of Heroes.” Admittedly, I have not been able to view the entire film because it is not yet available for viewing in the United States. Nevertheless, I was able to review the nine minute preview clip on YouTube. I was stunned by the level of factual inaccuracy in this documentary, and viewers should be warned that the factual claims in this film are demonstrably false.
At the outset, the film shows Carla Del Ponte speaking about Operation Storm, which was led by General Gotovina. Del Ponte claims:
“They thought if you are doing a legitimate war, you must not consider if crimes are committed, war crimes or crimes against humanity. It is collateral damage. But that is why the International Tribunal was created. A war is not the permission for the commission of crimes.”
One minute later, the film’s voiceover speaker ominously claims, “Prosecutors suspected that murders and intimidations of Serb civilians during Operation Storm were not isolated incidents, but the result of a policy to ethnically cleanse these parts of Croatia of their Serb population. A criminal conspiracy planned and implemented by Croatia’s leaders.”
What the filmakers fail to tell the viewer (at least in the preview clip) is that the Trial Chamber in its Judgement rejected Del Ponte’s claims that the Croatian leadership “did not consider if crimes were being committed against Serbs, war crimes or crimes against humanity.” Furthermore, the Trial Chamber rejected the Prosecution’s claim that Croatia’s leaders had planned and implemented a criminal conspiracy to allow murders and intimidations of Serbs in order to pursue a policy of ethnic cleansing. As I noted in one of my earlier posts, the Trial Chamber found:
“The Trial Chamber finds that the common objective did not amount to, or involve the commission of the crimes of persecution (disappearances, wanton destruction, plunder, murder, inhumane acts, cruel treatment, and unlawful detentions), destruction, plunder, murder, inhumane acts, and cruel treatment.“(Judgement, paragraph 2321);
Rather, the evidence includes several examples of meetings and statements (see for example D409, P470, and D1451), indicating that the leadership, including Tudjman, disapproved of the destruction of property. Based on the foregoing, the Trial Chamber does not find that destruction and plunder were within the purpose of the joint criminal enterprise.” (Judgement, paragraph 2313);
In light of the testimony of expert Albiston, the Trial Chamber considers that the insufficient response by the Croatian law enforcement authorities and judiciary can to some extent be explained by the abovementioned obstacles they faced and their need to perform other duties in August and September 1995. In conclusion, while the evidence indicates incidents of purposeful hindrance of certain investigations, the Trial Chamber cannot positively establish that the Croatian authorities had a policy of non-investigation of crimes committed against Krajina Serbs during and following Operation Storm in the Indictment area.”(Judgement, paragraph 2203).
The Trial Chamber thus established that the Croatian leadership (1) did not have a policy to allow crimes like murder and intimidation to be committed against Serbs, and (2) did not have a policy of non-investigation of crimes committed against Serbs.
Accordingly, two things were very clear to me within the first five minutes of viewing the preview clip: (1) Carla Del Ponte continues to mislead the international public about what the ICTY Trial Chamber concluded, and (2) the producers of this film did not bother to read the Trial Judgement or interview anyone who had actually read the Trial Judgement.
If the filmakers don’t have time to read the Trial Judgement before making a film about Gotovina, then I don’t have the time to watch their film.”
Mr. Misetic writes correctly that the film excerpt which he saw quoted the leading ICTY prosecutor at the time, Carla Del Ponte. He also correctly quotes the voiceover in the film:
“Prosecutors suspected that murders and intimidations of Serb civilians during Operation Storm were not isolated incidents, but the result of a policy to ethnically cleanse these parts of Croatia of their Serb population, a criminal conspiracy planned and implemented by Croatia’s leaders.”
However, where is the distortion of facts that he claims to have observed? Even he as laywer of Ante Gotovina should be able to agree that – as a statement of fact about what prosecutors at the ICTY suspected at the time of Tudjman’s death, which is what the film describes here - this voiceover is both true and factual. After all, the film also quotes those in Croatia who at the time and later argued the opposite: that Gotovina was a hero, that Tudjman just did what leaders have done throughout history, or that, as one prominent supporter of the general is quoted, Mrs. Del Ponte is a “crook.” These are obviously not ESI’s views: our aim was to give an objective sense of the arguments and emotions which made cooperation with the tribunal such a difficult issue for Croatia’s leaders to address.
ESI responded to Mr. Misetic on our facebook page. We wrote:
Later the court asked Croatian state authorities to hand over Gotovina and other generals to the ICTY. It was backed in this demand by the entire European Union. Nothing else is either being said or implied here. So which facts are being distorted?
As for the first instance sentence of Ante Gotovina, which comes much later in the film (which you admit you were not yet able to see) there is no voiceover at all, but the original material from the Hague. Here the court explains why it sentenced Ante Gotovina in its own words.
To this Mr. Misetic responded by continuing to accuse us of “distorting facts”:
Dear ESI: Your post suggests that the film later acknowledges that ICTY rejected the Prosecutor’s allegations that there was a “criminal conspiracy planned and implemented by Croatia’s leaders” to allow murders and intimidations of Serb civilians as a matter of policy. Does the film actually come out and make this clear? Also, please advise as to the “original material from the Hague” which you used in order to make this clear to the viewer. In contrast, if the film does not make clear that Del Ponte’s allegations (which you use to promote your film in the first 5 minutes of the preview clip) were in fact rejected by the Court, then I stand by my assertion that this is a clear “distortion” of the truth, because your film continues to reinforce the myth that Croatia had a policy of allowing crimes to be committed against Serbs. The Trial Chamber convicted Gotovina because it found that 5% of artillery shells out of 900 fired in the town of Knin fell “too far” from known military objectives, killing and injuring exactly zero civilians, but nevertheless these 5% of shells caused fear in Serb civilians and triggered their flight from Croatia. If your film makes this point clear, and makes clear that Croatian leaders in fact did NOT have a policy of allowing crimes against Serbs, then I will withdraw my criticism. If not, I stand by my comments.
But is it really ESI that is distoring facts concerning what happened at ICTY? Take Mr. Misetic’s claim (above) that
“… is a clear “distortion” of the truth, because your film continues to reinforce the myth that Croatia had a policy of allowing crimes to be committed against Serbs. The Trial Chamber convicted Gotovina because it found that 5% of artillery shells out of 900 fired in the town of Knin fell “too far” from known military objectives, killing and injuring exactly zero civilians, but nevertheless these 5% of shells caused fear in Serb civilians and triggered their flight from Croatia.”
In the documentary the prosecutor, the court and Mr. Gotovina’s supporters are all speaking for themselves. When we describe the sentencing in 2011 we use original footage from the ICTY and have no voiceover at all. But make up your own mind: read the judgement, or, if you want a synapsis of the ICTY’s view, read what the court, in its official press release, said in 2011 about why Mr. Gotovina was sentenced to 24 years:
“These crimes were committed as part of a joint criminal enterprise whose objective was permanent removal of the Serb population from the Krajina region by force or threat of force, which amounted to and involved deportation, forcible transfer, and persecution through the imposition of restrictive and discriminatory measures, unlawful attacks against civilians and civilian objects, deportation, and forcible transfer. The Chamber found that the joint criminal enterprise came into force no later than the end of July 1995 in Brioni where the Croatian President Franjo Tuđman met with high ranking military officials to discuss the military operation which commenced a few days later on 4 August.
The Chamber found that Tuđman was a key member of the joint criminal enterprise and that he intended to repopulate the Krajina with Croats. Other members of the joint criminal enterprise included Gojko Šušak, who was the Minister of Defence and a close associate of Tuđman’s, Zvonimir Červenko, the Chief of the Croatian army Main Staff. The members of the joint criminal enterprise also included others in the Croatian political and military leadership who participated in Presidential meetings and were close associates of Tuđman’s.
The Chamber found that Gotovina participated in the Brioni meeting and contributed to the planning and preparation of Operation Storm. Gotovina’s conduct, including his order to unlawfully attack civilians and civilian objects through the shelling of Benkovac, Knin and Obrovac on 4 and 5 August 1995, amounted to a significant contribution to the joint criminal enterprise. The Chamber further found that other charged crimes, although not part of the common purpose, were natural and forseeable consequences of the execution of the joint criminal enterprise, including to Gotovina.”
We hope that Mr. Misetic will acknowledge that the charge that ESI distorted facts, is neither fair nor accurate nor warranted.
PS: Twilight of heroes is also not a film about Ante Gotovina as Mr. Misetic writes. It is a film about Croatia, and how this country managed to break out of its isolation in 1999, faced its past, and transformed itself.
First there was the headline in the Frankfurter Allgemeine Zeitung on 9 October: “Brussels reprimands Croatia: ‘Criteria for accession are not yet met’.” Then Gunther Krichbaum (CDU), Chair of the Europe Committee in the German Bundestag, declared: “At this moment the country is not ready to join.” President of the Bundestag Norbert Lammert explained: “We have… to take the most recent progress report of the European Commission seriously: Croatia apparently is not yet ready to join.” On 15 October, Martin Winter wrote in Süddeutschen Zeitung that Croatia is indeed “not mature enough”, but that it is now too late: “It is a pity: Lammert’s objection comes a bit late.”
These are disturbing warnings. Is the EU about to be weakened through the hasty accession of yet another unprepared member? Doesn’t the EU have problems enough already?
In fact, Croatia’s preparations for accession have been widely recognised as remarkable. Since its application for membership in 2003, Croatia has faced demands that were considerably more challenging than those presented to previous candidates. It not only had to pass EU-compliant legislation, but also demonstrate real progress in implementing what were often challenging reforms. These efforts were recognised by the European Parliament in December, with a vote of 564 to 38 in favour of Croatia’s accession, and by the 16 EU member states that have already ratified the accession treaty. Last week’s European Commission scorecard confirms that Croatia is now completing the process of alignment. It’s ‘top ten’ list of outstanding issues – such as the privatisation of three shipyards, a new law on access to information, a national migration strategy and a new recruitments to the border police – are by no means alarming.
So why the sudden chorus of critical voices?
The only real charge to be brought against Croatia is the problem of corruption. On that issue, however, the European Commission’s most rigorous assessments have been fairly positive. The one demand made by the Commission – that Croatia continue its fight against corruption and organised crime – is one that could be made of many EU members. Transparency International’s most recent corruption index puts Croatia ahead of Italy and indeed the whole of South East Europe, including EU members Greece, Bulgaria and Romania. Over the past three years, Croatia has taken action to root out at corruption at the heart of the state, issuing indictments against a former prime minister and deputy prime minister, various cabinet ministers, the head of the customs administration, numerous managers of state-run companies and even the former ruling party itself. This suggests a country that is seriously committed to tackling the difficult legacy of the
In fact, since 1999 Croatia has been undergoing a process of radical change to its political culture that goes far beyond the adoption of thousands of pages of EU legislation. In 1999, Croatia’s President Tudjman was still supporting the separatist ambitions of Croats in neighbouring Herzegovina, violating minority rights at home, suppressing media freedoms and obstructing the work of the
All this has now changed. Croatia has ceased to disrupt state-building in Bosnia, issuing a formal apology in 2010 for the war crimes committed there in Croatia’s name. It has allowed the return of Croatian Serb refugees, and in 2003 a Serb minority party even entered into a coalition government. It has completed the extradition of all those indicted by the Hague, including the most famous, General Ante Gotovina. In Belgrade, this year’s Gay Pride parade was once again cancelled; in Croatia, government ministers were visible participants in the parade.
Compared to 1999, Croatia is now a much more open and liberal society. It will fit into the European Union with no clash of political culture. But proceeding with Croatian accession is not just about rewarding these efforts. It is also a vital political message for Croatia’s Balkan neighbours. It shows what the path to Europe really consists of: visionary leadership and the courage to take political risks inspired by European values.
None of Croatia’s eastern neighbours are close to joining the EU. Only Montenegro has begun the negotiation process, which requires at least a decade to complete. But it is in the best interests of both the EU and the peoples of South Eastern Europe – in Belgrade, Sarajevo, Tirana and Pristina – that the promise of eventual accession remains a credible one. Because, as Croatia has demonstrated so powerfully, it is the accession process itself that offers the best prospects for lasting political change in the region.
The accession of Croatia in summer 2013 will not weaken the EU. On the contrary, the transformation of Croatia demonstrates the power of the EU to bring about lasting change in a region that is gradually emerging from its troubled history.
Den Anfang machte eine Schlagzeile der Frankfurter Allgemeinen am 9. Oktober: „Brüssel ermahnt Kroatien: ‚Bedingungen für Beitritt noch nicht erfüllt’.“ Dann meldete sich Gunther Krichbaum (CDU), Vorsitzender des Europaausschusses des Bundestages, zu Wort: “Zum jetzigen Zeitpunkt ist das Land nicht beitrittsfähig.” Bundestagspräsident Norbert Lammert erklärte: “Wir müssen … den jüngsten Fortschrittsbericht der EU-Kommission ernst nehmen: Kroatien ist offensichtlich
noch nicht beitrittsreif.“ Und am 15. Oktober schrieb Martin Winter in der Süddeutschen Zeitung, dass Kroatien in der Tat „nicht reif genug ist“, doch dass der Zug schon abgefahren sei. „Nur leider: Lammert kommt mit seinem Einwurf ein wenig spät.“
Es sind beunruhigende Nachrichten, verstörende Warnungen: Wird die EU durch eine überhastete Aufnahme eines unvorbereiteten Landes geschwächt? Hat die EU heute nicht schon genug Probleme?
Kroatien ist ärmer als Deutschland oder Österreich. Allerdings ist sein Durchschnittseinkommen vergleichbar mit dem in Ungarn und höher als in allen anderen Ländern des Westbalkans oder als in Rumänien und Bulgarien.
Kroatien wurde während seiner Beitrittsverhandlungen mehr geprüft als jedes andere Land, das bislang versuchte der EU beizutreten. Es stellte seinen Antrag auf Aufnahme 2003. Vor dem Öffnen und Schließen der 35 Verhandlungskapitel mussten immer konkrete Reformen umgesetzt, nicht (nur) EU-konforme Gesetze verabschiedet werden.
War das Europäische Parlament blauäugig, als es Anfang Dezember mit 564 gegen 38 Stimmen für Kroatiens Aufnahme stimmte? Was ist den 16 EU Mitgliedsstaaten, die Kroatiens Beitrittsvertrag bereits ratifiziert haben, entgangen? Denn man kann davon ausgehen: wäre Kroatien heute noch nicht reif für die EU, dann würde es das wohl auch zum vorgesehenen Beitrittstermin im Sommer 2013 nicht sein. Ernste Probleme lassen sich nicht in ein paar Monaten beheben.
Doch um welche Probleme geht es eigentlich, aufgrund derer dieses kleine Land (mit gut 4 Millionen so viele Einwohner
wie Rheinland-Pfalz) eine mögliche Belastung für die EU darstellen könnte?
Ein oft hervorgehobenes Thema ist Korruption. Hier ist allerdings im Fall Kroatiens der Grundtenor des von Lammert zitierten Kommissionsberichtes positiv. Die einzige konkrete Forderung der Kommission ist eine Selbstverständlichkeit: Kroatien müsse den Kampf gegen Korruption und organisiertes Verbrechen fortsetzen. Im neuesten Korruptionsindex von Transparency International schneidet Kroatien so gut ab wie die Slowakei und besser als Italien und als alle anderen Länder Südosteuropas, einschliesslich der EU Mitglieder Griechenland, Bulgarien und Rumänien. In den letzten drei Jahren gab es eine Serie von Anklagen wegen Korruption, unter anderem gegen einen ehemaligen Premierminister, einen ehemaligen Vizepremier, gegen Minister, den Chef der Zollverwaltung, Manager von Staatsbetrieben und sogar gegen die frühere Regierungspartei. Natürlich gibt es weiter Korruption, in Kroatien so wie in Italien oder Österreich, aber es ist auch gerade in diesem Bereich sehr viel passiert.
Bezüglich der Umsetzung von EU-Gesetzgebung in Kroatien stellt der Kommissionsbericht fest: „Kroatien hat weitere Fortschritte in der Verabschiedung und Implementierung von EU Gesetzgebung gemacht und vollendet nun seine Angleichung mit dem acquis.“ Nicht alles ist gut: „Die Kommission hat Bereiche identifiziert, in denen weitere Bemühungen notwendig sind, und eine begrenzte Zahl von Aspekten, für die verstärkte Bemühungen erforderlich sind.“ Die Kommission nennt überdies noch zehn offene Punkte, auf die sie besonderen Wert legt, darunter die Vollendung der Privatisierung dreier Schiffswerften; die Verabschiedung eines neuen Informationszugangsgesetzes und einer Migrationsstrategie; den Ausbau zweier Grenzposten; oder weitere Anstellungen bei der Grenzpolizei (das wird, bis zu Kroatiens Schengenbeitritt, ein Thema bleiben).
Das sind alles sinnvolle Ziele. Doch entscheiden diese Punkte darüber, ob Kroatien als Mitglied die EU stärken oder schwächen würde?
Denn der tiefgreifendste und wichtigste Wandel in Kroatien seit 1999 ist neben der Umsetzung der EU Gesetze die Veränderung seiner politischen Kultur. Noch 1999 unterstützte Präsident Tudjman separatistische Kroaten in Bosnien. Er weigerte sich mit dem internationalen Strafgerichtshof zusammenzuarbeiten. Er trat Minderheitenrechte, Pressefreiheit und andere demokratische Grundwerte mit Füßen. Als er im Dezember 1999 starb, war sein Land international isoliert.
Danach begann sich Kroatien dramatisch zu verändern, angefangen mit der Politik gegenüber Bosnien. Die Rückkehr vertriebener Serben wurde ermöglicht. Es kam 2003 sogar zu einer Koalition zwischen Tudjman’s ehemaliger Partei, der HDZ, und der Partei der kroatischen Serben. Alle vom Den Haager Tribunal angeklagten mutmaßlichen Kriegsverbrecher
Kroatien ist heute ein anderes, offeneres, liberaleres Land als 1999. In Serbien werden weiterhin von manchen die Massaker in Bosnien in Frage gestellt. 2010 besuchte Kroatiens Präsident Josipovic hingegen Bosnien und bat für im Namen Kroatiens
begangene Verbrechen um Verzeihung. In Belgrad wurde die Gay Parade erneut abgesagt; in Kroatien nahmen Minister an der Parade in Split teil.
Genau darin aber liegt auch die wichtigste Botschaft eines kroatischen Beitritts an seine Nachbarn in Südosteuropa: um eines Tages EU-Mitglied werden zu können, braucht es Verantwortung, Führung und den Mut, politische Risiken einzugehen. Es
braucht Ausdauer und einen starken nationalen Konsens. Es ist in jedem Fall ein Marathonlauf, wenn nicht gar ein Triathlon, und kein Sprint.
Auf absehbare Zeit wird keiner von Kroatiens südlichen Nachbarn der EU beitreten. Verhandungen brauchen auf jeden Fall viele Jahre. Bislang ist es nur Montenegro gelungen, diese zu beginnen. Doch ist es im Interesse, sowohl der EU als auch der Region, dass dieses Ziel glaubwürdig bleibt, in Belgrad, in Sarajevo, in Tirana, in Skopje.
Der Beitritt Kroatiens im Sommer 2013 wird die EU nicht schwächen. Im Gegenteil, schon jetzt haben die Veränderungen im Land, die das Versprechen eines EU Beitritts verursacht hat, den Einfluss der EU in Südosteuropa gestärkt. Es gibt viele Gründe, sich über den Beitritt Kroatiens zu freuen und diesen als kleinen, aber wichtigen europäischen Erfolg zu sehen.
Am Sonntag, 21.10.2012, wird auf ORF 2 um 23.05 der von ESI mitgestaltete Dokumentarfilm „Kroatien: Heldendämmerung“, eine neue Folge der preisgekrönten Serie „Balkanexpress – Return to Europe“, ausgestrahlt.
Kori Udovicki, a former Governor of the National Bank of Serbia and former Minister of Energy, who had worked as an economist for the IMF and had set up and run an economic think tank in Belgrade, has since 2007 been Assistant Secretary-General and Assistant Administrator of UNDP responsible for Europe and the Commonwealth of Independent States (CIS). We met a few times in recent months to discuss economic development issues in the Balkans: in New York, in Paris and most recently in Bruges. As we talked we quickly discovered that we shared a very similar approach to these issues, even though we looked at them from different perspectives and experiences.
As Kori told me, after a long career as a macroeconomist, with a PhD in economics from Yale under her belt, she had grown increasingly sceptical about the conventional economic policy advise that had been offered to Balkan countries in recent years. It is not that this advise is not sound, but that it is dangerously limited. Yes, macroeconomic stability is important, crucial even. Yes, privatisation and indeed liquidation of loss making companies was needed (and indeed often took much too long in the Balkans). And yes, it cannot harm if it is easier and quicker to register a new business. But these prescriptions alone will not be enough to create the jobs and reverse a disastrous process of deindustrialisation from which the Balkan region has suffered in the past two decades.
I had long felt the same, and this sense of unease was recently reinforced after a conference debating economic policy in the region in the wake of the global financial crisis organised by the Central Bank of Greece in Athens. There, in the presence of governors of Central Banks from across South East Europe, numerous speakers pointed out the need to rethink the current growth model in the region. They warned that what had happened in recent years, consumer credit driven growth, was not going to work in the future. And yet, there remained a vagueness in the debate about an alternative and yet credible approach to growth.
And so Kori and myself put our heads together, debated, discussed and sent drafts across the atlantic to produce something we called an “appeal” concerning the employment crisis in the Balkans. This text benefitted hugely from debates with and research undertaken by my ESI colleagues, in this case in particular Kristof Bender and Eggert Hardten. It also benefitted from feedback at a seminar at the College d’Europe recently in Bruges, where I had been invited to present ideas to the senior staff of UNDP working in South East Europe. Above all it benefitted from the long debates, continued over skype, with Kori.
We certainly hope that this will be a useful and provocative small contribution to an inportant topic; one that concerns arguably the biggest structural threat to a lasting stabilisation of the Balkans.
The Balkan Employment Crisis—an urgent appeal
(Oped by Kori Udovicki and Gerald Knaus)
Leskovac, once known as the Serbian Manchester, is home to a textile industry that began in the 19th century, flourished under communism, and survives – albeit barely – till today. The town, which lies in the south of Serbia, boasts a textile school (set up in 1947), an association of textile engineers, and its very own textile magazine. The boom years are a distant memory, however. Leskovac’s socialist-era companies are bankrupt, their production halls empty, their machines dismantled and sold as scrap metal.
In the past two decades Leskovac has seen its population decline from 162,000 (1991) to less than 140,000. The drop in the working-age population has been disproportionately
high, and unemployment has increased. At the heart of the town’s plight, and that of so many other regions in the Western Balkans, is the impact of dramatic de-industrialization.
Contemporary Serbia is a society whose population is both aging (with an average age of 41, it is one of the oldest in the world) and shrinking. So is its industry. A recent article in the local press cites that 98 large, complex, industrial companies have shut down over the past two decades. And, most worrisomely, so is total employment. After stagnating throughout the economic recovery of the 2000s, it has been sharply declining since 2008. Today the employment rate is down to about 45 per cent, more than 20 per cent below the EU average. Half of the young are unemployed. In the textile and clothing sector, the number of workers has collapsed from 160,000 in 1990 to around 40,000 in 2010.
Serbia’s textile industry is representative of much of its industry, and Serbia’s labor market trends are representative of those in all the post-Yugoslav states. The employment rate in Albania is also one of the lowest in Europe.
It is true that Europe’s textile industry has been put on the defensive by the emerging Far East. However, it would be wrong to conclude that Serbia’s textile industry’s decline has been inevitable. In recent decades, the sector – one of the most highly globalized in the world – has seen employment shift from Germany to Poland, from Hong Kong to China, from Italy to Hungary and Turkey, and then to Bulgaria and Romania. In many peripheral regions across South East Europe, textiles have been a recent locomotive of growth and exports, creating hundreds of thousands of low-skilled jobs. The question we need to ask is why so few of these jobs have found their way to the Western Balkans. Bulgaria was able to increase its exports in the textile and clothing sector from 280 million USD to more than 2 billion US between 1990 and 2010, contributing more than 100,000 industrial jobs. Why hasn’t this been possible in Serbia, Bosnia or Albania? The same questions could be asked about other industries in the Balkans. Why are there more than 10,000 jobs in the furniture industry in the Central Anatolian city of Kayseri, far from any woods, but not in Bosnia and Herzegovina? Why are household appliance producers doing well in Slovenia, Western Romania and Western Anatolia, but not in the Western Balkans? How about agro-processing for the EU market? And what about Bosnia’s armaments industry, the mainstay of its industry in the past? Was its collapse really inevitable?
One answer is that the growth model adopted in the Western Balkans over the last decade has discouraged governments from asking such specific questions. Driven by distrust of the legacy of socialist planning, as well as by fear of state capture by corrupt businesses and corruption in the administration, the preferred economic policies have been hands-off, focusing not on specific sectors of the economy but on the general business environment. Policymakers have been praised for avoiding the temptation to shield declining areas of the economy from the discipline of the market. At the same time they found it hard to acknowledge when many former socialist businesses were past the point of possible recovery, overburdened by their debts and in urgent need of liquidation. Neither the political debates nor the legal framework in the region acknowledged that liquidation, sometimes, is the best way to ensure that existing resources—people and capital—remain in use, by being re-employed in the new growing private sector.
These key ingredients of the standard recipes of economic policy in the past decade are important, of course: a stable macroeconomic environment and a good business climate, in
which it is easier to open and close businesses, are a necessary condition for sustained recovery. But they are not sufficient. In a region ravaged by conflict and the sheer length of economic decline, a policy mix of “hands-off”, “rules-based” privatization and deregulation cannot be sufficient to launch sustained economic recovery. Even during the periods of relative economic growth and high FDI inflows, the employment generated by the new, entrepreneurial private sector was not sufficient to offset the jobs shed by the slowly restructuring and privatized old industries. The financial crisis of 2008 has wiped out more than the jobs generated in the recovery period, even if informal job generation is taken into
While the recovery lasted, there was a hope that FDI would yet accelerate and begin to generate more employment. Now, however, it is clear that the growth model needs to be changed. This has been noted by international institutions, most explicitly the European Bank for Reconstruction and Development (EBRD). More importantly, regional policymakers, under increasing pressure to generate jobs, have begun reaching for desperate measures, such as large, blanket, subsidies for foreign investors. This is the kind of step that has so often in the past given industrial policy a bad name.
What would an alternative model of economic growth look like? In answering this question, it helps to keep in mind that there is not, in fact, one simple answer. Each time, the answer depends on the context. Clearly, the key is the inclusion into global chains of industrial production. Credible industrial policies are needed to define ways of encouraging the mobile global investments to those sectors – from food processing to clothing, from furniture to basic engineering assembly – where declining industrial regions in the Balkans possess a comparative advantage. For this one needs a better understanding of the drivers behind the industrial jobs that are already being generated. In Leskovac, for example, over the past five years new jobs have been linked to investments by companies from Germany, South Korea and Turkey.
The question then becomes: what could be done to turn the trickle into a flood? Comparative advantages are likely to be still hiding in the remnants of the past. Declining industries have left behind redundant workers and educational institutions without the skills and resources needed to adjust to a new marketplace. Provincial cities like Leskovac lack foreign contacts. However, the right initiatives and support can deliver the necessary resources at a fraction of the costs that it would take to create a conducive environment “from scratch”.
A competent industrial development agency, modelled, for example, on the Irish Industrial Development Agency (IRA) could do this job. The key word here is “competent”. It would have to be able to offer support and advice – based on credible and painstaking sectoral analysis – to local administrations and companies. It would need to help educate local governments about ways of attracting investors. It could also offer grants for private sector management training, to enable their companies to move up the value chain in
different sectors of production.
This is not an easy task. However, there is no reason to assume that such competence in the Western Balkans could not be put together and built up. For this, however, it is necessary, that a new philosophy for the role of industrial policy in economic growth be embraced. This can only be done by the policymakers and governments of the countries themselves.
The EU could also help, however. All too often in the past two decades, the message coming across from EU officials and international financial institutions has, instead, been one of blanket discouragement of government intervention. The EU could do more to support the countries’ ability to develop and pursue credible multiyear strategies in a whole range of sectors, including agriculture and rural development, transportation, environment, and regional development. During the last enlargement wave, each candidate country integrated such strategies into a National Development Plan (NDP), which functioned both as a national roadmap and as a programming document for EU assistance. Such an approach would benefit the countries of the Western Balkans, where the public sector suffers from a dearth of planning capacity and resources for policy development.
Last but not least, the credibility of Western Balkan integration into the EU market could be enhanced. For the Western Balkans, the last few years have seen agonizingly slow progress in this area, with no country other than Croatia having so much as opened EU accession talks. The more realistic the perspective of EU membership for countries such as Serbia or Albania, the bigger the incentives for those interested in long-term investments in industrial production in the Balkans.
Integration with the EU market will be a critical anchor for economic development in the Balkans, but it will take more to ensure convergence. The example of Greece shows that
integration and access to funds is not enough. Greece is currently not able to absorb more than a third of EU structural and cohesion policy funding, because it has never benefited from the massive capacity-building and institutional support that has been given to the Fifth enlargement countries and Croatia. Looking on to the Western Balkan batch, the EU may consider increasing this support, emphasizing the administrative capacity for medium-term development in policy planning and coordination. Bringing development planning
into an earlier stage of the current accession process would allow each Balkan country to focus on the assessment of its competitiveness in agriculture and industry, and learn about the constraints to development faced by these sectors.
None of this is to suggest that there is a silver bullet for job creation. The Balkan development challenge is enormous, and there are deep structural reasons behind the staggeringly low rates of employment in the region – some reaching back into the 1980s and the very nature of socialist industrialisation. Reversing the long-term trend of employment decline is a generational project, made all the more difficult by the current cyclical conditions in Europe. But reindustrialisation has taken place in recent years in a number of new member states or candidates, from Poland to Slovakia. Numerous industrial development clusters – from Timisoara in Western Romania to the Istanbul region and many Anatolian tiger cities in Turkey – have seen growth and success. In all these cases, political elites at the national and local level have made the integration of local businesses into global chains of industrial production a strategic priority.
The lack of employment opportunities today in the Western Balkans is generating quiet despair, especially among the young. Without radical change, without a serious and visible commitment to a new set of policies, the sense if despair now palpable in the region may become burning. There is, in fact, no greater, more urgent, social and economic issue in the Balkans. Fortunately, experiences of successful industrial recoveries and turnarounds abound. Learning from them could turn around the fate of people in Leskovac, and countless other towns just like it.