Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Lauren Pak
Lauren Pak is a senior at Vanderbilt University studying Political Science and Community Leadership Development.
According to paragraph 138 of the United Nations General Assembly Resolution 60/1 (2005), the state has the ultimate responsibility to “protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity” (p. 30). Under such state responsibility, the Outcome Document also qualifies this protection to entail prevention. The significance of the role determination stated in the resolution is the manner in which the United Nations defines state sovereignty. If the state fails to satisfy its obligations, the international community has the right to “collective action”, which paragraph 139 states is to “build capacity to protect” and “use appropriate diplomatic, humanitarian and other peaceful means” in order to prevent human rights atrocities (2005, p. 30). In other words, the resolution proclaims the international community’s overriding authority and ability to intervene in state affairs.
The implications of this stance are one in many. First, the document assumes that states have the moral responsibility to abide to the universal standards of human rights. Though the assumed universal values are unarguably grounded in Christian, Western, liberal thought, this should not be a point for exclusion or non-intervention. The assumed ‘western’ and ‘eastern’ philosophies as it relates to human rights do not contradict or oppose each other as simplified categorization would have it (Cook, 1993). Rather, the real contention lies in the fact that institutions are assumedly functioning on morality, dismissing the political agenda of structures. Such idealism is the fuel that backs the call for international councils such as the League of Nations and ultimately the United Nations (David, 2016). But the claim of universal peace and democracy blankets the darker reality that is a perpetuation of colonialization, belittling a state’s autonomy and capacity to work non-violently and in a civilized manner with another entity. The failure of states in this context becomes a moral failure, where the international body finds itself needing to teach ‘values’. This leads to the justification of a Western hierarchy, a ‘New World Order’, or imposition of foreign principles that does not respectfully engage with local contexts. What are the implications that the majority of ICC indictments are involving heads of African states when the “most horrific mass atrocities in recent years have taken place outside of Africa” (Taylor, 2015)? The disparity points very clearly at the fact that there is a color to the power controlling the narrative of global governance and a dangerous selectivity when it comes to determining legitimacy.
Secondly, the principles of responsibility to protect assumes that states play the primary hand in the conflict, with the atrocities mentioned in the doctrine controllable and within the powers of institutional structures. Global peace is conditioned by state mutuality and respect of another’s sovereignty (Ayoob, 2002). However, acts of terror are not being committed by states but rather non-institutionalized structures with indirect support by states such as the ‘janjaweed’ in the Dafur case, Bosnian Serbs separate from Serbia’s official military, or ISIS in Syria (Rosenberg, 2009). The legitimacy of states as a governing body by international standards seems to be totally dependent on the legal ability to “prevent, punish, investigate, and redress human rights violations” (Rosenberg, 2009, p. 448). Under this logic, without authority or the recognition of state sovereignty, there can be no institutionalized stability. This places unwarranted power in the hands of militant groups and extremist factions that do not recognize institutional legitimacy and function outside of international law. Legitimacy is completely subjective (Hurd, 1999), and so to base international authority upon such is nonsensical. This is the failure of the responsibility to protect doctrine in that it does not actually prevent or allow for intervention because it is based on the legal premise that the main perpetrators and abusers of human rights are institutionally accountable structures.
Similarly, in determining genocide, intent is qualified by a ‘policy of genocide’ involving official governance implementation or systematic action in inciting such. In the Dafur case, the UN Commission of Inquiry stated that the crimes of the Sudanese government and militia groups do not constitute as genocide but that individual state actors can be held responsible and indicted for genocide (CNN International, 2005). Though Bosnian Serb Radovan Karadzic was convicted of genocide and crimes against humanity for his leadership role with Srebrenica with authorizing letters from Milosevic, he was acquitted of genocide charges in surrounding municipalities because there was lack of clear institutionalized, political strategy to destroy an ethnic group in other areas of mass killings (Dzdic, 2016). Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide legally defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” How does one measure or quantify genocidal intent? When it comes to invoking the responsibility to protect, it would seem that the genocide label is the only manner in which to illicit international intervention or one would expect except such rulings still failed in achieving timely responses for Rwanda or Dafur (Straus, 2005). Furthermore, the genocide label is reactive and determined after tragedy, leaving little to no room for prevention as called for by the responsibility to protect. Even today, 20 years after Srebrenica, there is international dispute on whether or not the event is indeed a genocide. Despite a UN Security Council Resolution affirming the Srebrenica Genocide, Russia vetoed this label and China abstained (The Guardian, 2015).
There is a lack of clear and unanimous power when it comes to handling human rights atrocities, with resolutions then being interpreted by select actors such as the United States or Russia. This goes against the claim that the law is universal (David, 2016), as a law’s effectiveness and power stems from its implementation and interpretation. In a Democracy Now! debate, Jeremy Scahill poses the question, “But Iraq? Where was the label of genocide in the U.S policy towards Iraq?” in displaying the incongruity of U.S. intervention. United States strongly claimed the Dafur crisis to be genocide despite the lack of such resolution by the United Nations and other major State actors (Straus, 2005). The United States was quick to support intervention in the Kosovo case and again used the term of ‘genocide’ (CNN, 1999). Though there is literature by authors such as Shkelzen Maliqi (2011) who cite the Serb’s military aggression as ‘ethnic cleaning’ or ‘genocide’, the United Nations legally ruled that Milosevic’s campaign as it relates to Kosovo was not genocide (BBC News, 2001). Furthermore, when discussing legitimacy as it relates to international law, there is not only the issue regarding the legitimacy of states but also the question of an intervention’s legitimacy. Though the legality of the NATO Kosovo intervention in question due to the failure of the international community in prevention and lack of UN Security Council approval, the legitimacy of the intervention is upheld due to the lack of a peaceful alternative despite some who question the ethicality of the Rambouillet Agreement (The Independent International Commission on Kosovo, 2000). In response to Jeremey Scahill’s biting critic of U.S foreign policy’s selectivity and play on national interest when it comes to active intervention, U.S. Ambassador to the UN or the ‘genocide chick’ Samantha Power points at how the politics behind military intervention does not change the bleak reality that there were atrocities being committed against Kosovo Albanians that elicited the NATO 1999 action (Democracy Now!, 2013).
My question is why does genocide seem to be the only manner to provoke international action or humanitarian intervention? It would seem that mass human rights abuses such as rape, killings, or displacement are not enough to trigger timely and definitive action despite their undeniable gravity. Pro-development interventionist William Easterly (2001) argues that ethnic diversity causes conflict due to greater institutional instability and limits developmental growth. This assumes that crimes such as ethnic cleansings are inevitable and a part of human nature. In the Rwanda case, the Clinton Administration intentionally dodged using the term genocide in order to avoid intervention (Straus, 2005). Denison and Mujanovic (2015) points at the danger of assuming the natural and unavoidable effect of ‘ancient ethnic hatreds’ as reasons to not intervene in Syria, using the Bosnia conflict case and the lack of international intervention in preventing the politically led Srebrenica genocide. This past March, U.S. Secretary of State John Kerry made a statement that accused ISIS of genocide for “eliminating those who do not subscribe to its perverse ideology” despite the past precedent that legal determination of genocide is dependent on proof of an institutionalized strategy against the destruction of a group (Rosenberg, 2016). Again, why does genocide seem to be the only trigger for action? Furthermore, the attempt to qualify every conflict as genocide in turn discredits the significance and implication of genocide, and the highly politicized debates for the identification also prolongs the process of actual and timely action. Perhaps, the problem with the responsibility to protect is that it is based fundamentally on the flawed concept that intervention is only justified when there is legal legitimacy without recognition that legitimacy is subjectively cultivated. Instead, it would seem that politics has clouded the fundamental purpose of the responsibility to protect doctrine that looked to reestablish and affirm the call to preserve the sacred nature of human life.
Photo Credit: Flickr User Wally Gobetz
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
Your comment will be posted after it is approved.
Leave a Reply.