National Sovereignty and
excerpted from the book
9/11 and the Ruin of Human
by William Schulz
Thunder's Mouth Press, 2003,
"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
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
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
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.