Might or Right

by Peter Singer

New Internationalist magazine, January / February 2002

No government can justify the mass murder of its own citizens. But we have yet to evolve international institutions that can intervene to prevent it. Peter Singer lays down some ground rules.

The aftermath of the 11 September terrorist attacks dramatically highlighted the way in which state sovereignty has ceased to be a sacred principle of international relations. Compare US demands on Afghanistan with Austria-Hungary's demands on Serbia after the assassination of Archduke Franz Ferdinand on 28 June 1914 - the incident which sparked the First World War.

In both cases, there was strong evidence that the terrorists had come from, or been trained in, the countries under threat. But Austria-Hungary had much better evidence of the involvement of elements of the Serbian Government in the plot than the s US had in the case of the Taliban. The Bosnian Serb conspirators were trained and armed by members of the Serbian intelligence forces, who aided them up to the point at which they crossed the border to carry out their criminal act. Austria-Hungary presented the evidence to Serbia, demanding that it bring those responsible to justice and allow Austro-Hungarian monitors.

Despite the evidence of Serbian complicity, Austria-Hungary's ultimatum was condemned in the US, France, Russia and Britain as merely an excuse for going to war. 'The most formidable demand ever imposed on one state by another,' British Foreign Minister Sir Edward Grey called it. Austria-Hungary and its backer, Germany, have thus been seen by historians as bearing a large measure of guilt for the First World War.

The Bush administration's demands of the Taliban were as stringent as those in 1914, but were made without presenting any evidence to link Osama bin Laden to the attacks of 11 September. Yet the US demands, far from being condemned as a mere pretext for aggressive war, have been endorsed by a wide-ranging coalition of nations.

The idea that national sovereignty cannot extend to harboring terrorists builds on a notion unknown in 1914: that there are 'crimes against humanity' which no-one, not even a sovereign government, may commit. Since terrorism indiscriminately kills innocent people, it is a crime against humanity. As we struggle now to envisage a world without terrorism, and to consider what are legitimate means of achieving this goal, we are broadening an earlier struggle to create a world without crimes like those committed in Nazi Germany, in Cambodia, in Bosnia, in Rwanda. What kind of institutions and structures would we need to bring such a world about?

An international court

Just as, at the domestic level, those who commit crimes know that they risk punishment, so too at the international level, those who commit crimes against humanity should know that they can be punished.

We are beginning to develop international criminal law that is effective and enforceable. Tribunals authorized by the UN to try those guilty of crimes against humanity in Rwanda, East Timor and former Yugoslavia are now building on the precedent set by the Nuremberg Tribunal in its trial of Nazi war criminals.

So far these international tribunals have been one-off arrangements, set up to try those responsible for particular atrocities. The planned International Criminal Court, to be associated with the UN and situated in The Hague, will be permanent, with a prosecutor who can charge individuals with genocide, war crimes and crimes against humanity.

An international treaty establishing the International Criminal Court has, at the time of writing, been signed by 139 states, and ratified by 43. Ironically - and to its shame - the US has said that it will not ratify the treaty. The court should set a standard for procedures, the jurisdiction of which every nation confidently accepts. If the Court had been in existence in 2001, it might have provided an acceptable way for Osama bin Laden and his associates to have been tried in a truly international court that was not dominated by the US.

Preventing genocide

Punishing the criminals after an atrocity has occurred is something that most people would support. But prevention would be even better. Those forms of prevention that do not involve military force are to be preferred. The long term goal must be to build a global culture that promotes respect for others and peaceful resolution of disputes. But for the foreseeable future there will be circumstances in which nothing but military intervention will suffice to stop atrocities.

Accepting the legitimacy of military intervention across borders is much more dangerous than setting up an international criminal court. The difficulty is to specify the circumstances in which military intervention should take place, so that humanitarian and anti-terrorist reasons will not slide into excuses for militarily strong nations to exert their power over weaker ones. How should this be done?

The moral importance of protecting the lives and well-being of people does not depend upon the national boundaries they live within. National sovereignty has no intrinsic moral weight. What weight it does have comes from the role that respect for national sovereignty plays, in normal circumstances, in promoting peaceful relationships between states. It is a useful rule that sums up the hard-won experience of many generations in avoiding war.

Deciding on the circumstances in which national sovereignty must yield is, therefore, a matter of weighing up the risks of distinct evils: on the one hand, reducing the constraints against war, and on the other, allowing crimes against humanity to continue. Every case needs to be considered on its own merits - no abstract formula can replace a detailed examination of the facts of the case.

We can, as the international tribunals have done, make it a condition of intervention that it is designed to stop crimes against humanity. There is, however, another condition that is equally crucial. Military intervention for humanitarian purposes usually costs lives, and sometimes does not even achieve its goals. No intervention can be justified unless it can reasonably be expected to do more good than harm.

For example, assume that Russia committed crimes against humanity in Chechnya comparable to those that Serbia committed in Kosovo. Even so, since the costs of military intervention against Russia would have been far higher than those against Serbia - and the chances of success much smaller - intervention against Russia could not have been justified, whereas that against Serbia may have been.

A role for the UN

But who is to decide when crimes against humanity have taken place and when the expectation of success is sufficient to justify intervening?

There are dangers in having individual nations make such decisions, as Tanzania did when it invaded Uganda to depose Idi Amin, and Vietnam did when it moved against the murderous Pol Pot regime in Cambodia. Nor should the decisions be left to regional organizations like NATO, which have their own agendas.

The United Nations is, for all its faults, the only global body that could conceivably develop an authoritative framework for specifying when intervention is justifiable. Within the UN only the Security Council could reach a decision on intervention with the necessary speed. But the present structure of the Security Council makes it difficult to see it as having the necessary moral authority for this task. The Security Council has five permanent members - the US, Britain, France, China and Russia - corresponding to the major powers that were victorious in the Second World War. Although there are ten additional members elected by the General

Assembly for two-year terms, no substantive decision can be taken against the overt opposition of any of the five permanent members.

There can be no justification today for giving special status to states that were great powers in 1945, but are no longer so today. Why should France or Britain have veto rights, and not Germany or Japan, or for that matter, Brazil or Indonesia? Why should China be a permanent member, and not India? Why is there no permanent member from Africa, or Latin America or from anywhere in the southern hemisphere?

The UN has been looking at reform options since the mid-1990s but the process shows no sign of coming to fruition, though India and Japan, in particular, have recently been campaigning hard for permanent membership. To expand the number of permanent members with veto rights would risk making the Security Council unworkable. A better idea would be to eliminate the veto and allow a three-quarters majority of an expanded membership to reach decisions. In the long run, it is hard to see that giving special privileges to a small group of states will be the best way to maintain either the authority of the UN or world peace.

Whether or not the UN is reformed - and I would also advocate an elected assembly as part of its regeneration (see Page 12) - it needs more resources to carry out its decisions. It should not have to beg nation-states to allow their troops to serve under the UN flag. It should have the ability to maintain its own well-trained forces so that the interventions it authorizes can be carried out rapidly and effectively.

My picture of a possible future does not require us to dream of a world in which everyone is good and no-one commits crimes. It is a vision of global governance for a world with human beings in it who are much like human beings today. That we could move slowly in the direction of this vision is not an impossible dream.

Peter Singer is DeCamp Professor of Bioethics at Princeton University in the US.

Coalition for an International Criminal Court c/oWFM/IGP, 777 UN Plaza, New York, NY 10017, US Tel: +1 212 687 2176 E-mail: cicc@iccnow.org www.igc.org/icc/

Campaign for UN Reform 420 7th St SE, Suite C, Washington, DC 20003, US Tel: +1 202 546 3956 www.cunr.org

International War Crimes

Index of Website

Home Page