National Sovereignty and International Justice

excerpted from the book

Tainted Legacy

9/11 and the Ruin of Human Rights

by William Schulz

Thunder's Mouth Press, 2003, paper


Charles Krauthammer
"We run a uniquely benign imperium."

Though the concept of national sovereignty has been refined over the years,(many of the fundamental issues that emerged from the Peace of Westphalia have remained. Prominent among them has been)the tension between respecting a state's right to make decisions regarding its own citizens and interests and recognizing that some common ground rules that apply to all may be necessary for the flourishing, if not survival, of civilization.

That tension is built into the very fabric of the U.N. Article 2 paragraph 7 of the U.N. Charter declares that "Nothing contained in the present Charter shall authorize the U.N. to intervene in matters which are essentially within the domestic jurisdiction of any state.... " Indeed, it is likely that, had that provision not been inserted into the charter, the organization would not have come into existence in the first place. The U.N. was founded in reaction to two horrific wars between sovereign nations, and it envisioned its role as preventing more of such carnage. But it did not take long before the world body was confronted with the fact that much of the worst conflict took place within nation states, the Korean War being the earliest and most dramatic example.

When it came to wars, however, even civil wars, the problem of intervention was not so complicated. Wars were understood almost by definition to fall outside solely "the domestic jurisdiction of any state" and Article 1, paragraph 1 of the U.N. Charter had made it clear that the purpose of the United Nations was "to take effective collective measures for the . . . suppression of acts of aggression and other breaches of the peace."

Human rights violations, on the other hand, were another thing entirely. Even long after the adoption of the Universal Declaration of Human Rights (UDHR), how a government treated its own citizens was regarded as "essentially within the domestic jurisdiction" of the state. Despite the growing body of international human rights law, countries, under the guise of national sovereignty, could harass, persecute, torture, starve, and even kill large segments of their own populations and fear little greater rebuke than a resolution of condemnation from the U.N. Human Rights Commission. And, given the inconsistency of the commission and the tendency of the great powers to protect their allies, even the odds of that were pretty slim.

Over the last ten or fifteen years, however, the balance between national sovereignty and the assertion of international authority has 1 begun to shift once again. With the conclusion of the cold war, East and West had less incentive to offer cover to petty autocrats. The fall of apartheid South Africa in the early 1990s, at least in part as a result of widespread international opprobrium, provided a case study for how multilateral action might end human rights abuses. More democracies in the world brought louder calls for more accountability, in the form, for example, of the South African Truth and Reconciliation Commission. Growing recognition of the global nature of both environmental threats and economic opportunities meant a growing recognition of the interdependence of the planet. Guilt over the genocide in Rwanda in 1994-a genocide that took place while the United Nations slept, the United States having supplied the Sominex-prompted a reexamination of when military intervention was justified. That same guilt may well have prompted NATO's intervention in Kosovo. The decision of the Law Lords in the United Kingdom in 1999 that Augusto Pinochet could be held accountable by Spain for crimes committed in Chile spurred the movement to invoke the doctrine of "universal jurisdiction," as sanctioned, for example, by the Convention Against Torture, the principle that any country may prosecute those who are accused of torture and certain other human rights crimes. Belgium cited that doctrine in 2001 when it convicted four Rwandan citizens of crimes committed in the 1994 genocide. And the International War Crimes Tribunals for the former Yugoslavia and for Rwanda went about their business trying those accused of atrocities in those tragic places.

But swing toward international accountability as the pendulum may, the sovereignty of nations still has plenty of defenders. Two of the most resolute are China and the United States. In 1991 a white paper from the Information Office of the State Council in Beijing put the Chinese position straightforwardly: "China has firmly opposed . . . any country interfering in the internal affairs of other countries on the pretext of human rights . . . China has always maintained that human rights are essentially matters within the domestic jurisdiction of a country." And while the United States has never been quite so explicit in its official statements, it has regularly attached reservations to its ratification of international human rights treaties asserting in effect that the Constitution, as interpreted by the Supreme Court, trumps all international obligations under those treaties. This means that, whether it be "cruel, inhuman, or degrading treatment," as defined by the International Covenant on Civil and Political Rights (ICCPR), or the recruitment into the military of those under the age of eighteen, as precluded by the Optional Protocol on Armed Conflict of the Convention on the Rights of the Child, the United States has generally claimed that where international strictures butt up against national prerogatives, the national invariably prevail.

But what is good for the American goose is surely not good for other countries' ganders when it comes to the war on terrorism. The Bush Doctrine-that there is no distinction between terrorists and regimes that harbor terrorists and that both are equally subject to sanctions-gives no truck to sovereignty as a defense. Because terrorists have to be based somewhere and often operate in collaboration with governments, those who would stop terrorism will almost inevitably violate other nations' sovereignty in the process-in military pursuit of adversaries, obviously, but also, as the Bush administration has demonstrated, in preemptive strikes against would-be purveyors of weapons of mass destruction, assassination of suspects, gathering of intelligence, or imprisoning of foreign nationals without trial. One of the great paradoxes of the war on terrorism is that at the: very time the United States is most determined to defend its own ( sovereignty from attack, it is more inclined than ever to violate the sovereignty of other independent states. President Bush made this explicitly clear in his 2003 State of the Union address with regard to states "that seek and possess nuclear, chemical, and biological weapons," remarks that were aimed at Iraq but could include a host of other countries that "seek or possess" such weapons as well.

What happened in the small Central African country of Rwanda in the spring of 1994 continues to haunt me. I had been executive director of Amnesty International USA for about a year when the genocide began. For one hundred days, machete-wielding Hutus killed some 800,000 Tutsis and moderate Hutus in the worst genocide since World War II. The story has been told eloquently by Samantha Power in her Pulitzer Prize-winning book, "A Problem from Hell" America and the Age of Genocide. Power spares no one. Not the genocidiares of course who committed the atrocities. Not the politicians and military leaders in Rwanda who encouraged them. Not the radio station that broadcast the names, addresses, and license plate numbers of those who were to be tracked down and killed. Not the United Nations peacekeeping office (then headed by the current Secretary General Kofi Annan), which insisted that the U.N. soldiers on the ground avoid combat at any cost. Not the Belgian government, which provided 440 of those soldiers and withdrew them after ten of them were killed. Not the U.N. Security Council, which refused to authorize intervention. And especially not the United States, which, fearing another Somalia, insisted on that international passivity; pettifogged endlessly over use of the term "genocide" to describe the massacres for fear its use would trigger treaty obligations compelling intervention; and finally even refused to jam the lethal radio broadcasts because to do so would cost $8,500 an hour.

But Power pulls no punches about the failure of human rights organizations either and here is where my own guilt kicks in. The reason the United States government was so silent was because the Congress, the press, and the American people were so silent. And the reason the latter three made no noise was because the human rights community, and especially Amnesty International, which claims 300,000 members in the United States, was unsuccessful in impressing upon our leaders the magnitude of the horror. We spoke and wrote and petitioned' but we should have been leafleting neighborhoods, pounding on desks, and marching. There is one criterion that has long been recognized as essential to justify military intervention to stop human rights crimes. As a 1905 textbook on international law put it, the cruelties in question must be sufficient to "shock the conscience of mankind."' In order to register such shock, human beings often require a push. All of us who neglected to push hard enough in 1994 share in the blame.

... if we are to prevent the most serious human rights abuses from taking place, we need to place some limits on sovereignty to protect the common interests of the international community. Parenthood provides a telling analogy. Virtually all cultures recognize that parents have a great deal of latitude when it comes to rearing their children. Article 16 of the Universal Declaration of Human Rights affirms that "Men and women of full age . . . have the right to marry and to found a family" and goes on to say that "the family is the natural and fundamental unit of society and is entitled to protection by society and the State."

Yet no matter how respectful we may be of parental prerogatives, virtually all societies also recognize some limits to parental authority. If a child is being abused or neglected, if a child is being deprived of an education, or if a parent fails to attend to a child's health such that the child's life may be in danger or the child may become a purveyor of disease-in all such instances state authorities have a widely recognized right to intervene, even to the extent of taking custody away from the parents. Parental claims are not unconditional ones; they entail a measure of responsibility as well.

Similarly, with the recognition of national sovereignty by the international community, principally through membership in the U.N., come certain expectations. These may be characterized in different ways. Kofi Annan has said that the U.N. Charter is designed "to protect individual human beings, not to protect those who abuse them." Annan knows that the charter restricts intervention in matters ''essentially in the domestic jurisdiction of the state" but he argues that sovereignty vests also in individuals. By implication, to the extent that a state violates the latter type of sovereignty, it sacrifices some of its claims to the former. The Commission on Intervention and State Sovereignty puts it slightly differently: "In signing the [UN] Charter, [a state] accepts the responsibilities of membership.... There is no transfer or dilution of state sovereignty. But there is a necessary re-characterization: from sovereignty as control to sovereignty as responsibility [for the welfare of its citizens]."

If an individual sovereign state is unable or unwilling to exercise its responsibility to protect the sovereignty of its citizens, then it is up to the international community to do so for it.

In Rwanda, General Romeo Dallaire, the Canadian commander of U.N. troops on the ground, believed, quite reasonably, that he could stop the slaughter with just a few thousand more soldiers. The genocide was, after all, being implemented almost exclusively with clubs and knives. But the U.N. Security Council denied even that modest request.

The Commission on Intervention and State Sovereignty has identified two circumstances that justify intervention: (1) "large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act . . .; or (2) large scale 'ethnic cleansing,' actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape." Whether or not that formulation is definitive, it signals the gravity that must attend such intervention. The final, critical question is, 'Who gets to decide how grave is grave?"

... there is no guarantee that a decision by a multitude of parties will necessarily be better than a decision by an individual. But democracy is based on the premise that more often than not it will be, and what is surely true is that multilateralism provides a wider forum for debate and greater safeguards than the reckless abandon of one state or two acting alone.

Every time the United States belittles the notion of an ''international community," ignores or undermines its authority, be it in the name of fighting terrorism, countering weapons of mass destruction, or protecting human rights, it inflicts one more chink in the perilous effort to bring order and civility to a violent, fractured world. How can that possibly advance the cause of fighting terrorists who play on the very divisions it sows?

At the same time, to the extent the "international community" shirks its responsibilities, it does damage to its own credibility. That surely happened in 1994 in Rwanda. When the Security Council failed to act in the face of genocide, it was left to France, the only country willing to intervene, to take on the problem unilaterally. France did so belatedly but at least it did so, and the Security Council ultimately gave its blessing to the French initiative.

... of the 900 Germans identified by the A]lies as war criminals in World War I and tried for their crimes before the German Supreme Court, 888 never stood trial. Of the twelve who did, six were acquitted and six convicted. And of the six convicted, all were pardoned within a few years.

This was not the way it was meant to be. The Versailles Treaty for all its faults, mandated the establishment of an international war crimes tribunal. But such a tribunal never came into existence. Britain and France favored it strongly, but the United States objected. Such a tribunal, said U.S. Secretary of State Robert Lansing, was a direct attack on state sovereignty and totally lacking in "precedent, precept, practice, or procedure." It would take another world war before the principle of international accountability for war crimes would be put into practice..

The Nuremberg and Tokyo trials, as well as, more recently, the war crimes tribunals for Rwanda and the former Yugoslavia, have been the vehicles for such accountability. The United States has | been a key supporter of them all. Each of them has advanced the notion that sovereignty is no protector of barbarism and "just following orders" no excuse for human rights crimes. But now comes the International Criminal Court (ICC), whose statute entered into force on July 1, 2002 a permanent court in contrast to the ad hoc bodies referred to above) charged with bringing to justice those accused of genocide, war crimes, and crimes against humanity and the United States has gone all weak in the knees. Worse than that, the Bush administration has "unsigned" the ICC treaty which President Bill Clinton had affixed his signature, has threatened countries that support the ICC, and has sought exemption from prosecution for any U.S. troops who might be a part of peacekeeping operations overseas.

If instead of resisting the creation of an international structure of accountability before which the worst human rights violators could be brought, the United States supported this groundbreaking effort, it would pay rich dividends. As things stand now, universal jurisdiction can be invoked by any prosecutor of any country that recognizes that principle for the purposes of questioning or bringing a case against any political or military figure, such as the Spanish judge Baltazar Garzon did with Augusto Pinochet in 1999. Such ad hoc prosecutions may well grow in the future and that may be all to the good. The ICC will, after all, only be able to prosecute a limited number of cases and some countries may opt to prosecute others themselves. But, far from contributing to unjustified legal harassment, a standing international court could systematize the most important prosecutions, lend them legitimacy, and provide a model of conduct and responsibility for similar national endeavors.

Were the United States to ratify the court, it would then be in a position to work to amend the ICC's rules of procedure, as necessary, participate in the selection of judges and prosecutors, and watch over the court's development. Whether the ICC exists or not, American leaders are legally vulnerable to the whims of national prosecutors invoking universal jurisdiction all over the world. By supporting the ICC, we institutionalize the principle of complementarity for countries like our own which have fully functioning judicial systems and we provide a court of last resort for those less developed countries whose own judicial systems are unlikely to be able to handle prosecutions of the world's worst tyrants.

Even more important, a U.S.-backed ICC would send a powerful message to would-be miscreants around the world: you will pay legal consequences if you commit the most dastardly crimes. I don't mean for a second that the court is a panacea, any more than the existence of any criminal justice system, no matter how effective, guarantees an end to crime. But imagine how different our world be today if Augusto Pinochet, Pol Pot, Idi Amin, and "Baby Doc" Duvalier had all been hauled before an international court, convicted of human rights crimes, and punished for them, instead of allowed, as they were and have been, to live out their lives in peace? How can we possibly know that such consistent justice would have had no effect upon Slobodan Milosovic, Saddam Hussein, or the genocidiaires of Rwanda? It is at least arguable that one or more of them would have thought twice about committing their crimes if they had seen their predecessors in infamy behind bars.

Then, too, the availability of a reliable mechanism for administering international justice would help resolve one of the thorniest dilemmas the world frequently faces: namely, whether a tyrant should be offered safe exile or amnesty in exchange for giving up power peacefully and saving the toll of war.

... a strong ICC will constitute an unprecedented affirmation of global, in addition to national justice. As the philosopher Peter Singer has observed, that can have profound implications in the struggle against terrorism:

Terrorism has made our world an integrated community in a new and frightening way. Not merely the activities of our neighbors, but those of the inhabitants of the most remote mountain valleys of the farthest-flung countries of our planet, have become our business. we need to extend the reach of criminal law there and to have the means to bring terrorists to justice without declaring war on an entire country in order to do so.

Terrorism must be fought both militarily and criminally. At the moment, the criminal justice systems that are fighting it are all national in scope. To this point the United States has chosen to utilize only its own courts to prosecute terrorist suspects. But how much more powerful it would be if those accused of terrorism were subjected to international censure? How much more difficult it would be for anyone to claim that convictions were set up or tainted by anti-Islamic sentiment if the prosecutors and judges were not just Americans but Danes and Kazakhs and Nigerians and Jordanians and Pakistanis as well? The United States is hardly likely to permit the Osama bin Ladens of the world to be tried before some sort of international tribunal if it is not even willing to support the ICC. And that, once again, is unfortunate because it signals, as does our opposition to the ICC itself, an utter disdain for multilateral institutions, institutions which, if allowed to flourish, could be one of the most promising means to create a more secure world.

There are 191 nations in the world in which 6,170 languages are spoken. The world is a multitextured, many segmented place, and it is likely to stay that way. That is by no means all bad-every one of those segments could do at least one good thing, if only they would.

But it is also a place recognizing slowly but inexorably that its very survival depends upon its willingness in some measure to hold hands. That is surely true when it comes to human rights but also when it comes to health, environmental safety, and a more equitable distribution of wealth. It is also true when it comes to combating terrorism. If any enterprise required the world's responsible states to sacrifice just a bit of their sovereignty in order to join hands against those who would spread fear upon the waters, it is that one.

The Bush administration has even given voice to this truism. Under Secretary of Defense for Policy Douglas Feith has said, "I think that we may be on our way to creating a new international way of thinking, a new international norm, about terrorism.... Our goal is to make terrorism like piracy, the slave trade, or genocide in the minds of the people around the world. It is to delegitimate terrorism as an activity." But far from recognizing its interdependence with other countries in practice, the United States seems to have drawn from the threat of terrorism the lesson that it must rely more and more on its own stubborn strength alone. That is a tragic miscalculation-exceeded perhaps only by the conclusion that in the fight against terrorism, all is permitted-including torture.

Tainted Legacy

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