For something whose existence is so tenuous, international
law has an imposing presence. Part of
this comes from the usefulness of international tribunals in adjudicating trade
and boundary disputes. But what about
war crimes, crimes against humanity, and other more dramatic affairs? We constantly hear that this or that action
or practice violates international law, as if this alone made the heinousness
of the act self-evident. The fact is
that obedience to international law may also be heinous. If we don't see this, it's because the West's
supremacy in the 1990's gave international law an exalted reputation it never
deserved. We'll see how the decline of
that supremacy requires a reassessment of what international law has to offer.
To appreciate what's happened, it's necessary to distinguish
between actual law and judicial-sounding moralizing. Any bunch of dignitaries can write down some
sentences and call them law, but that's not enough. What more do we need?
A traditional answer, understandably contested by
international lawyers, is enforcement.
Some contemporary theorists disagree. They cite "the law of
contract, tort or family law, none of which rely directly on the need for
enforcement by the state in order to function properly." This is precarious. The traditional enforcement requirement does
not say that reliance on enforcement must be 'direct'. It says there will be consequences if you
break the law. Contract, tort, and
family law don't come with penalties prescribed, but the fact is these rules
wouldn't be called laws if you could flout them with impunity. If I don't pay alimony or the agreed price of
goods and services; if I don't honour my commitment to spouse or children;
there is some recourse. You can sue me,
or bring charges of non-support, and if you married me, I better not have
married someone else in countries not recognizing polygamy. Defiance of the judgements involved can
ultimately lead to losing my liberty. If
I forcefully resist arrest it can even lead to my death.
Suppose, though, that some international laws rest on
nothing more than mutual understanding or good will. Trade agreements, for instance, may have no
sanction other than the bad reputation you get if you break them (well, and the
very real consequences of a bad reputation).
Call all this law if you like, even law in the full sense of the
term. Whether or not law by definition
requires enforcement, the international 'laws' governing murder and atrocity
certainly do require it. Otherwise they
merely express an arid idealism which promises no effect other than
disappointed indignation. That's indeed
what we have today. Anyone unaware of
this hasn't noticed how the realities of enforcement have changed.
The contemporary version of international 'criminal' law -
the sort related to violence - comes into being with the United Nations. It was created by the countries which won
World War II. The permanent members of the
Security Council probably represented the most complete monopoly on military
force the world has ever known. When the
UN drew up its Charter, which forms the basis of non-commercial international
law today, there was no question but that it had muscle behind it. However this muscle was not employed to
enforce the UN's "Universal Declaration of Human Rights": that was an
aspirational document no one took very seriously. The preoccupation of the Security Council,
the institution most resembling an enforcement arm of noncommercial
international law, was the avoidance of world war through the maintenance and
adjudication of spheres of great power influence.
Stalin was deeply serious about this, willing to pay a real
price for Western cooperation. He let the
West crush a well-developed Greek communist uprising and made no attempt to
block the massive intervention against North Korea. His successors followed his lead. They showed no inclination to invoke the UN
Declaration against Western-sponsored atrocities in Latin America, Indonesia,
and Southeast Asia. In all these compromises, on both sides, it was understood
that human rights would count for nothing.
Israeli violations of these rights were noted in General Assembly
resolutions, but no one expected enforcement because of the US veto. And until recently, even human rights
organizations showed no sign of supposing that the perpetrators of human rights
violations would ever be brought to justice, much less interrupted in their
pursuits. The focus was on public
campaigns to free individual dissenters or the mere exposure of violations:
back before smartphones, atrocities weren't joyfully recorded on video for all
the world to see.
What holds for the UN Declaration also holds for the 1987
Convention against Torture, another aspirational document that has not, I
believe, ever come close to enforcement.
Even the 1998 arrest of the notorious Pinochet in London came to
nothing. The interpretation and
especially the enforcement of international law, under the auspices of the UN,
was always subordinate to reasons of state.
This should come as no surprise.
The UN was born and continues to be a forum for states to pursue and
balance their interests, not an institution dedicated to the just treatment of
individual human beings.
For a while, deceptively, it looked like things had
changed. What brought the appearance of
a human rights revolution in international law may have seemed to involve legal
mechanisms of enforcement. In fact it
had to do with a fundamental change in the balance of power. Western powers, perhaps commendably, were
able to 'enforce' provisions within scenarios that had at best only very weak
juridical legitimacy. How did this
happen?
With the fall of the USSR and, even more important, Russia's
subsequent near-collapse into the arms of the West, the Western powers, led by
the US, reigned supreme. They had an
interest in establishing human rights standards and in enforcing them in
certain parts of the world, notably Yugoslavia.
It is not necessary to see this as hypocrisy or the cynical pursuit of
self-interest: perhaps the West saw the opportunity to indulge itself in some
slightly selective idealism. (The torturers and murderers of Latin America
don't sit in the jails of the International Criminal Court.) The fact remains
that the seeming advances in the cause of human rights occurred because the
West had unprecedented dominance in world affairs.
Their dominance was crucial to evading the core requirement
governing enforcement of contemporary international law, namely UN Security
Council assent. NATO intervened in Kosovo under the pretense of enforcing UN
resolutions. Legally, though, it was not
up to NATO unilaterally to decide whether the resolutions were being honored,
or what was to happen if they were not.
Yet without this intervention the famous Yugoslavia war crimes trials
would never have taken place. Though
Russia has allowed the tribunal to proceed, it questioned both its efficacy,
fairness and competence.
This was a faint presage of things to
come.(*) As soon as the imbalance of
power weakened, non-Western nations found reasons, again good or bad, to blow
the house down.
The story is very recent and very well known. Russia was furious at being outmaneuvered
into agreeing to a UN Security Council resolution on Libya that authorized the
West to intervene against Gaddafi.
Furious, perhaps, at itself as well:
it apparently didn't read the resolution carefully. But Russia was no longer falling apart and no
longer prepared to accept humiliation.
It decided to reassert its own sphere of influence concerns, and has
blocked any attempt to intervene in Syria on the basis of human rights. But this is more than great-power special
pleading. Russia's stance has exposed
the fundamental incapacity of international law to protect human beings from
atrocity. The damage is irreparable.
The reason emerges from the founding document of the United
Nations. Though referred to as "The
UN Charter", it is actually called "Charter of the United Nations and
Statute of the International Court of Justice." Claims that the Charter is the central
document of contemporary international law would be hard to defeat. And clearly, the main concern of the Charter
is the prevention of war and consequently of aggression against sovereign
states. This is apparent from the
language of its articles.
When it comes to matters of war or aggression, the charter
doesn't mince words. It clearly enjoins
any such actions. Thus Article 4 says that "All Members shall refrain in
their international relations from the threat or use of force against the
territorial integrity or political independence of any state...". Article
39 says that "The Security Council shall determine the existence of any
threat to the peace, breach of the peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken ... to maintain or
restore international peace and security."
Prohibitions are clear and enforcement is clearly envisaged.
On the other hand the Charter does mince words when it comes to human rights. It merely reaffirms
faith in these rights. It intends to encourage
respect for them, and suggests various socioeconomic efforts to 'assist in
the realization' of human rights (Article 13).
The Charter is vastly more activist and enforcement-oriented with
respect to national sovereignty than with respect to the rights of individual
human beings.
What then of UN support for human rights within sovereign
states - supposedly robust in the emergence of a "Responsibility to
Protect"? The closest thing to such
protection is discussed in Paragraph 139 of the 2005 "Outcome
Document" summarizing the deliberations of the General Assembly. It's worth quoting in full.
139. The international community,
through the United Nations, also has the responsibility to use appropriate
diplomatic, humanitarian and other peaceful means, in accordance with Chapters
VI and VIII of the Charter, to help protect populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. In this context, we are
prepared to take collective action, in a timely and decisive manner, through
the Security Council, in accordance with the Charter, including Chapter VII, on
a case-by-case basis and in cooperation with relevant regional organizations as
appropriate, should peaceful means be inadequate and national authorities
manifestly fail to protect their populations from genocide, war crimes, ethnic
cleansing and crimes against humanity. We stress the need for the General
Assembly to continue consideration of the responsibility to protect populations
from genocide, war crimes, ethnic cleansing and crimes against humanity and its
implications, bearing in mind the principles of the Charter and international
law. We also intend to commit ourselves, as necessary and appropriate, to
helping States build capacity to protect their populations from genocide, war
crimes, ethnic cleansing and crimes against humanity and to assisting those
which are under stress before crises and conflicts break out.
(http://www.responsibilitytoprotect.org/index.php?option=com_content&view=article&id=398)
No wonder member states approved this: it's scrupulously
toothless about domestic atrocities. No
nation engaged in massive atrocities against its own people is likely to lose
much sleep over the UN's stated resolve "to use appropriate diplomatic,
humanitarian and other peaceful means".
As for "In this context, we are prepared to take collective action,
in a timely and decisive manner, through the Security Council... should
peaceful means be inadequate", no one with friends on the Security Council
has anything to fear either. At one
point the language is ludicrous: the
'international community' does not even commit itself to helping states build
the capacity to protect: it only "intends" to have this
commitment! In short international law
offers no protection for individuals unless all the great powers want to act. But if all the great powers want to act,
who needs international law? In such
rare circumstances, action will follow whether or not the law concurs: one can hardly imagine the great powers
having so much respect for legal niceties that they would be deterred from
acting in such circumstances. So
international law is either impotent or superfluous in the defense of human
rights.(**)
But it's much worse than this. The repeated appeals to international law
cannot but create the presumption that it should be obeyed. In normal times like today, when there is a
balance of power in the world, this offers excellent opportunities for powerful
opposition to humanitarian intervention: a Security Council veto is all it
takes to render any such intervention contrary to international law. Yet decent, compassionate people keep
treating this law with unbridled respect.
Activists of all sorts constantly appeal to international
law. This is a habit born of
post-World-War-II optimism and the brief moment of Western supremacy in the
1990s. There is every reason to suppose
that moment will not repeat. On top of
that, Western supremacy not only offers no guarantee of respect for human
rights: it offers a guarantee that human rights will not be respected when they conflict with Western interests. The now firmly established status quo is that
international law will be used to frustrate any but universally approved
attempts to enforce the much-vaunted Responsibility to Protect. No one should suppose, because they can muster
some argument or other that responsibility to protect trumps non-aggression,
that such arguments have the slightest chance of carrying the day. The UN is an assembly of nations. All of them distrust any weakening of their
sovereignty. They care about human
rights only when it accords with their political agenda. The idea that the UN Security Council, in
such circumstances, will enforce the responsibility to protect in contentious
cases is a non-starter.
Those tempted to moralize on the basis of international law
need to remember the simple fact that laws can be good or bad. International law is no exception. It almost certainly situates non-aggression
over human rights. 'Almost certainly' is
more than good enough when great powers disagree on the interpretation of the
law, that is, when they have different political agendas. To appeal to international law is to
legitimate the sort of obstruction we see in Syria today, and this is the tip
of an iceberg. Efforts to impose
international law on any officially respectable country rife with atrocious
violations of human rights - India and Mexico, for instance - can't even be
imagined, because it is so obvious that the Charter provisions against
non-aggression would kill any attempt at enforcement as soon as it surfaced.
All things considered, the preponderant tendency of international jurisprudence
is to forbid outside intervention in sovereign states literally no matter what
the level of atrocity they inflict on their citizens. Indeed it's hard to see how there can be
progress towards international justice as long as international law is
considered irreproachable.
The greatest harm inflicted by faith in international law is
the extremely tenacious belief that somehow, if sufficiently outrageous truths
are known, some properly outraged international community will invoke the law
of nations which, in its majesty, will put a stop to the atrocities. This flies in the face of all the evidence;
its level of denial is impressive. It is
a crutch. The sooner it is kicked away,
the better. Where laws are
catastrophically wrong, they must be broken.
At some point human suffering must count for more than the bare
possibility that a discredited ideal will redeem itself in some implausible
future.
* Russia's doubts
have just been dramatically vindicated by the West itself: the European Union has decided to set up an
international tribunal "focusing exclusively on crimes allegedly committed
by Kosovo's ethnic Albanian rebels during their war with Serbia". The Associated Press reports that "Plans
for an independent tribunal amount to an admission of failure by the West to
hold its ethnic Albanian allies accountable for war crimes. The rebels had the
backing of NATO during the war — and the West has staunchly supported Kosovo in
its efforts to emerge from the conflict as an independent state. But the ethnic
Albanians have also come under increasing pressure from the international
community to reckon with their own war crimes, including alleged organ
harvesting."
** For similar interpretations from an authoritative source,
see Mary Ellen O'Connell, "Ukraine Insta-Symposium: Ukraine Under
International Law".
