Javier Cremades: "The solution to war will come through law"

Javier Cremades, lawyer and president of the World Jurist Association and the World Law Foundation, talks to Atalayar in an interview with its director, Javier Fernández Arribas, about the purposes and challenges facing law in the face of current threats. A wide-ranging debate that will be the point of reflection at the World Law Congress. 

In less than a month's time, the World Congress of Jurists will be held in New York from 19 to 21 July. A congress at which His Majesty King Felipe VI will be present and at which an important prize will be awarded to the President of the European Commission, Ursula Von der Leyen. I think it is a very relevant congress at this time, given the state of the world. 

These are events that take place every two years, summits of jurists that have been held since 1963. The first one took place in Athens and was something akin to a global conversation on what law can and should mean for the world. Since then, in different countries, presidents, supreme courts, law professors, lawyers and jurists in general have been trying to share not only technical knowledge but, above all, a vision of the world based on one idea: stable peace can only be achieved through law, either we are governed by law or we are governed by force. I believe that this is the great dichotomy.  

It seems to me that we are in a very unique historical stage. This does not resemble the Cold War, when the World Association of Jurists was born. It is perhaps a little more like inter-war Europe, where there was an instability within the very systems that could be called demolitionist. Democracies were under attack from within and it was difficult to foresee whether they would remain or not. At the moment it also seems that autocracies are being able to penetrate democracies and that democracies are becoming ungovernable. 

Disinformation is killing us and polarisation is dividing and threatening us. There seems to be no common sense of what a life under the rule of law should be. There are regimes that are seeing the independence of the judiciary eroded. We are seeing great threats within what are constitutional regimes. We have seen not only the deterioration of constitutional systems, but the destruction of these constitutional systems, for example, in Venezuela or in Nicaragua, more recently. Before that it was in Cuba. 

But, I repeat: it is no longer the threat from the bloc opposite, but increasingly it is ourselves. We have deconstitutionalising agents within our own regimes, and sometimes it is the authorities themselves.  

Populism is perhaps the greatest threat to us, but also because we do not believe in and defend our principles and values with the conviction that we should defend them, especially because of the relevance that this gives to the system we have. 

I believe that at the moment we live in a public world dominated by emotions, by victimhood and by permanent agitation. It is very important to recover and reinforce the idea of the rule of law, the rule of law.  

This rule of law is not only an umbrella that covers us, where freedom and dignity are the limit to any action of power, but it also has rules of the game and needs to be maintained, for example, scrupulous respect for judicial decisions, the stability and clarity of the legal system or respect for electoral results, even if they are not in our favour.  

It is true that it is possible to agitate the population when there is an electoral defeat, but this requires not only the strength of the institutions, but also the support of the community and its leaders for the institutions themselves. This is not always the case at the moment, and we have experienced moments that attest to this: the assault on the Capitol, on the institutions in Brazil, right now the discussion in Israel about the competences of the Supreme Court, or what happened in Brexit when the Supreme Court decided that the Government was not the only one that could execute the people's decision to leave the European Union, but that it had to be in Parliament. The government decided to end the parliamentary period and it was the Supreme Court that reopened it, and at that point there was a whole questioning. I don't know if you remember that front page in the Daily Mail "judges, the enemies of the people".

All of that is an attack on the pillars of the rule of law that requires a certain education of each of us. A certain campaign to think that I have the capacity with my micro-power to delegitimise what the institutions do. We need to criticise them, but also accept them and respect what they are.  

The other day I saw Justice Stephen Breyer, who received the medal of honour from the World Association of Jurists in New York, explain that the American Constitution is approaching its 250th anniversary and that it is an experiment. A very singular and unique project in history, like ours, our own Constitution, our own democracy. The question is whether it will prevail.  

We are gambling, in this generation, on knowing how to build and maintain a rule of law that is the best system humanity has ever achieved, where those of us who live in it know that we breathe the oxygen of freedom. This must be protected.

I think the celebration in New York has a special significance at this time. I don't know if it has been sought on purpose, taking into account the state of democracy in the United States right now, this crisis after an assault on the Capitol, after everything that is happening with Mr Trump accusing and insulting judges and everyone. What do you expect from this congress in New York? 

This congress was first born with the idea of federating, in a way, the global legal community and providing a global voice of law. From the beginning there was a debate: should we include jurists from countries like Russia, China or Iran in our discussions? Because they are not exactly democracies, quite the opposite.  

The conclusion reached by the two founders of the association, Earl Warren, the then Chief Justice of the US Supreme Court, and Charles Rhyne, who had just stepped down as President of the American Bar Association, was that these countries should be included. This is what is going to happen in New York. The second largest delegation after the American delegation is the Chinese delegation.  

Why did we choose New York? Firstly because it is the seat of the United Nations and we are celebrating our 60th anniversary. Secondly, because it can actively be something of a global capital. New Yorkers see themselves as the law capital of the world because they have no other commodity than legal certainty. They have become strong and big in the world because judges, instructions and rules are enforced there. They are not always complied with, but everything is then subject to the consequences when they are not. 

What we are going to see at this meeting in New York is that at the headquarters of the United Nations we will once again be reminded that there are some things that are worthwhile, such as, for example, the European Union. An invention of a new political community which is the European people based on a new law, which is Community law, and which has overcome centuries of confrontation between us.  

This is the way forward, and we want to set a benchmark for it. That is why we have decided to award the world prize for peace and freedom to the European Union, even though at the moment the European Union itself is participating in some indirect way in a war. That is a disaster. At the moment we are not facing a threat of a nuclear holocaust, but we have war on European soil, and that is an extremely dangerous thing that can continue to spread and that we need to end as soon as possible. The only way is going to be through law. The solution to the war will also come through law. 

Is the Russian delegation also going to be noticeable at this congress, and have the Russians agreed to participate? 

There are some Russians, but it is not easy for them to get visas.

During the Second World War there was a very unique episode. A decision of the US Supreme Court concerning the expropriation and expulsion from the country of a whole huge community: more than 70,000 Japanese. The Supreme Court had to decide whether that decision of the Roosevelt government was constitutional or not. 

There was indeed an internal reflection on who should decide the war, Roosevelt or us. I think it was wrong, but in times of war the law does not rule, and that is why peace is so important. Peace and law go hand in hand. Without peace it is very difficult to submit to the nets of law because it seems that war justifies everything. But at the same time, without justice it will be very difficult for all of us to be willing to accept the terms of peace. 

The Congress will also highlight what the rule of law and the rule of law represent for strengthening democratic systems to guarantee good governance, but also to achieve equality so that women are also empowered within the judicial systems, how are we going to advance in this area? 

Fortunately, not only in what we could call the West, but also in Africa and Asia, the role of women in the administration of justice is gradually becoming more and more relevant. Four years ago, we created the Ruth Bader Ginsburg Medals to recognise and propose as models jurists - normally female judges - from around the world who have been giants of the law, who have been guarantors and great promoters of the rule of law.  

Navi Pillay, for example, is a lady who was the first judge of the Supreme Court of South Africa, who today I would say is a legend for the fight for human rights in the world: she presided over the International Criminal Tribunal for the genocide in Rwanda and was one of the first members of the International Criminal Court. In the United Nations, she is a person who has been instrumental in solving problems, always based on the law. But not only her, but also Judge Abella from Canada, who is going to be at the Congress in New York. There are many women. Lady Hale, who was Chief Justice of the Supreme Court of the United Kingdom, and who had to face that huge problem where the government and part of the people questioned her role in Brexit and started attacking the independence of her jurisdiction.  

All these women from Fiji, from Malaysia, from India, from Africa, from Morocco are pioneers, but they mark the path that Ruth Bader Ginsburg opened up of understanding that the equality of men and women before the law, that it was above ideology. It is true that there are huge debates about gender, but there should not be about equality before the law.  

In Spain we also have problems of political interference in the independence of the judiciary, do you think this can be resolved? Do we need politicians who have more responsibility, more respect for the separation of powers, for judicial independence and who do not try to manipulate the institutions? 

It was very surprising that on 8 May, when the Digital Centre for the Promotion of the Rule of Law that we are now discussing was inaugurated, the European Commissioner for Justice here in Madrid spoke directly about the need to resolve the issue of the judiciary in Spain. This is a problem that really needs to be understood because it goes back a long way. It has to do with the Constitution itself and with the party system itself.  

In the end, each Constitution is a child of its time. Just as the German Constitution responds to Nazism historically and enshrines the dignity of the person in its first article, the Italian Constitution responds to those more than 20 years of fascism, where a very strong government managed to take control of the whole country and drew up a constitutional system where executive stability is not easy. In Spain, we responded to 40 years of a system of dictatorship and the political party was enshrined in article 6 as the great instrument for the political participation of citizens. But that has led to a certain partitocracy where political parties by nature are dedicated to the management of power, and are trying to penetrate all the powers.  

In 1985 there was a change in the system of electing the judiciary and since then none of the parties has dared to restore the original meaning of the Constitution, and today we have a Constitution that is scandalous and for which the two main parties are responsible for not renewing themselves in accordance with the constitutional pressures of the organs of government. It is true that this governing body has no capacity, no jurisdiction, no judicial power, but it does administer it.  

The feeling that citizens may have that judges are politicians in robes is very dangerous, because judges are not beholden to an ideology, but are beholden to the interpretation, according to their own criteria, of what should be the law and what the Constitution and the laws say.  

We are in a very complicated situation, playing with various things, making improvised regulatory changes, neglecting the obligations to renew the constitutional bodies and creating tensions. We saw them in the last quarter of 2022, where the Constitutional Court, the Executive and the Legislative almost came to blows, they began to publicly attack each other. This is a very dangerous deterioration of citizens' confidence in the institutions, without which there is no rule of law either, even though we have a Constitution and a separation of powers.  

We need people to respect judicial decisions, even if they do not like them and even if they are wrong. For this they have to observe that the judiciary is independent, immovable and subject only to the Constitution and the law, and not dominated or pulled by party political strings.

It would be necessary to recover the understanding between the two big parties, the Government's alternative, in order to lay solid foundations that could not be manipulated as they have been until now, above all, because you put the system itself at risk.  

I believe that there are some issues, as you say Javier, that are above the partisan struggle. I am no longer referring to the two major parties, I am referring to all political parties, of which there are several in Spain and which participate in governance; they must be removed from the day-to-day political struggle. These include constitutional provisions, respect for the institutions and respect for what is at stake at any given moment.  

It is true that when a government appoints two judges to the Constitutional Court, the government of the day chooses people who think they can have a certain infinity and dream that in this way they will have an influence on this organ of power. But the reality is that if they choose good jurists, even if they have their own vision of the world, then they know what they are doing, which is, depending on the context of the historical moment and the circumstances, to apply the law according to the law. I think it is very important that politicians know how to renounce interference in the judiciary, which is the weakest and most easily attacked power of all.  

The proof of the pudding is in the eating, Mr Cremades, and we are in a recently inaugurated centre. Explain to us why it is a modern, useful and functional centre, but with a very clear content and objective. From what you have explained to me, it has that purpose of defending the judicial system. 

We are in the age of purpose, and purpose is nothing other than understanding what things are done for: why do I work, why have we created a centre for the promotion of the rule of law, why does a media exist, why do we have a centre for the promotion of the rule of law, why is there a media? And there is an overarching purpose of society, what does life in society exist for?  

Basically, life in society must have an anthropocentric sense; the promotion of the individual, of his rights, of his freedoms, of his capacity to develop his life in freedom in the pursuit of happiness and, for this, no better formula has been found than the rule of law. I think it is very important to remember the purpose of society and to teach something very simple but which we sometimes forget, which is that if we are not governed by the law, we will be governed by a force, the force of an ideology, of a party, of an autocratic leader, the force that has the capacity to impose itself on others. Therefore, the small force of the individual can be used, crushed and disregarded.  

We need - and this is why this centre was created - to educate, so that everyone knows that our system of life is based on the fact that we all respect the laws and their practical application, which is what the judges say in each specific sentence; that we respect the institutions, and that we have a Constitution. We can and need to change it from time to time because it is not stony, but we have a Constitution that governs our life in society. We owe it to it, we must turn to it when we have disagreements, and it is to it that we must devote our best efforts - politicians too - to explain that it is the guarantee for the underprivileged, the weak and anyone who wants to aspire to have their rights unknown.  

This is apparently a very simple thing, but sometimes we forget it. There are people who are ready to throw it all away, and we have seen it in several countries. Sometimes this disregard for the Constitution leads to its destruction, as in the case of Venezuela, as an example that is closer to us and more paradigmatic. Then, life becomes something very unpleasant and very dangerous. 

I am one of those who think that journalism and the media are now more necessary than ever because of the disinformation and false news that we find on a tool as useful as the Internet, which is as useful as it is polluted. Perhaps this is where a lot of emphasis needs to be placed because the messages that are being conveyed with such immediacy and speed often do not correspond to reality. The media have a responsibility, I would say an obligation, to participate in everything you are saying. 

I very much agree with this reflection. Michael Sandel said a few days ago that the governance of democracies is becoming unsustainable due to disinformation. And it is true that, from outside, from other systems, democracies are accused of being ungovernable, dysfunctional, and of not being able to plan for the long term or even the medium term.  

Everything, at bottom, is based on the difficulty of having a well-informed public opinion. If the sovereign people do not have adequate information, it is very difficult for them to govern themselves. As if the building that anyone owns has cracks or problems that the owner is not informed about, he is hardly going to be able to understand them. We need it to maintain our consent to have information and not to have hidden defects.  

In this system, where there are more voices than ever, there is a clear disorientation and misinformation. For this reason, professional journalism with news companies and organised newsrooms - sometimes perhaps not as large as they were in the past, but with a plurality and also with an organisation - is essential to be able to have a certain confidence that the facts are what we know them to be. We are still in a world where basically what they do to us is to give us false leads, and we will hardly find the way.  

It is probably the easiest point in our democratic system and where, moreover, the most damage is being done to us. We look at what happened, for example, when the Constitution was flouted in Catalonia and an illegal referendum was called, or what happened in the last elections in Brazil where Bolsonaro lost, or what happened in the assault on Capitol Hill with the contribution of some irresponsible national leaders, but also of robots and artificial intelligence coming mainly from Russia.  

Fortunately, we have opened the doors to an enormous flow of information, but this makes us more vulnerable and will require us to be more educated, thanks also to more information.  

You mentioned this and it prompts me to ask you. Artificial intelligence, from the world of law, do you see it as a threat or can it be a good tool? How can or should we regulate the growth of artificial intelligence? 

It is unthinkable to think that we are going to renounce all the contributions that artificial intelligence can make. It is a complement to human intelligence. Let's say it is a creature of human intelligence, but it is true that we need the Constitution and the laws to remain in force in this field as well. It is no longer a virtual field, it is a real field that can have a direct impact on our lives.  

In all the advances in artificial intelligence, nanotechnology, scientific advances, and for the world to remain human and anthropocentric, we need to be subject to laws.  

We need to understand what the challenges are. The scientists, developers and creators of artificial intelligence themselves are calling for balanced and sound regulation. That is a challenge for the regulator. We have not yet had specific laws on the subject, but we have general criteria in jurisprudence and in the constitutions themselves to think that we do have the capacity and the necessary legal framework to benefit from all that artificial intelligence can bring, and also to try to avoid all the risk that it can pose to life in freedom.