Human Rights and International Law (18): Responsibility to Protect (R2P)

The “Responsibility to Protect“, or R2P in U.N.-speak, is a humanitarian principle that aims to stop mass murder, genocide, ethnic cleansing, war crimes and crimes against humanity. It refers initially to the responsibility of states to their own citizens, but in case states can’t or won’t protect their own citizens, other states can step in, respecting the Security Council procedures. However, this is a last resort, especially if the intervention is of a military nature.

The concept is closely linked to, if not indistinguishable from, humanitarian intervention. Often it’s also called the principle of non-indifference, a sarcastic pun on the principle of non-intervention. Some for whom national sovereignty and non-intervention is still the main and overriding rule in international affairs, see R2P as an excuse for Western interference. Noam Chomsky is a notable if unsurprising example. You can read his arguments here. He is joined by a number of governments that risk being a future target.

However, most in the West aren’t jumping the queue to enter into a legal obligation that can force them to undertake expensive and risky interventions in the name of humanity. The fact that these interventions aren’t only expensive and risky but often also without collateral benefits, doesn’t help either. R2P is not yet a legal rule, more a quasi-legal rule. Some legal or quasi-legal texts include the concept. The Constitutive Act of the African Union includes “the right of the Union to intervene in a member state pursuant to a decision of the African Union assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”. The same is true for the Security Council of the UN. The concept was endorsed unanimously by heads of state during the World Summit of 2005, so it can be argued that the principle is part of international common law (i.e. international law established by coherent and unanimous state practice).

Human Rights and International Law (16): In Defense of Universal Jurisdiction

Universal jurisdiction, according to Wikipedia, is:

a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. (source)

Universal jurisdiction departs from the standard principle that there should be some kind of connection between an act and the state asserting jurisdiction over it. In other words, the normal rule is that states exercise justice in relation to crimes committed on their territory or crimes committed by their nationals abroad. Indeed, this departure is the main criticism of universal jurisdiction: by allowing a state to prosecute individuals who are not its citizens, and who have committed crimes in other states, against people who are citizens of other states, we in fact allow this state to violate the right to self-determination of other states.

However, universal jurisdiction is nothing new, and most countries accept some kinds of universal jurisdiction. For example, few now oppose the right of Israel to judge Adolph Eichmann. The discussion, therefore, centers on the proper extent of universal jurisdiction. Human rights activists claim that states should be able to exercise universal jurisdiction in cases of genocide, crimes against humanity, torture, war crimes and slavery.

The reason behind this list is also the main justification of universal jurisdiction. These crimes affect all of us, the whole of humanity, and not just the immediate victims. Those who commit these offenses are hostis humani generis, enemies of humanity. And this has to be taken literally: these crimes are attacks on humanity, not just on individual human beings. The torturer dehumanizes his victim, but also himself. And he infects the society in which he operates. A society that allows torturers in its midst, can no longer be called a society. The same can be said of genocide and the other crimes in the list.

Universal jurisdiction is the act of reclaiming humanity. It is a statement by different parts of the world community, claiming that humanity does not accept such crimes. It is, therefore, an expression of humanity against those who attack humanity. And it’s a powerful expression of humanity precisely because it emerges from different parts of humanity, different countries and nations which all have an interest in the preservation of humanity.

I can imagine that some would object to all of this and would insist that crimes are committed against individuals, and not against an abstract entity such as “humanity”. But then I would invite those people to explain how they differentiate between a single anti-semitic murder and the holocaust. Or between a single case of an individual torturing another individual, and a case of state organized torture. I do believe that the concept of “crimes against humanity” makes sense, and that universal jurisdiction is a good way to respond to those crimes, maybe not from a purely legal point of view (universal jurisdiction isn’t the most effective jurisdiction) but from a human point of view.

Human Rights and International Law (11): International Law Between Protecting and Obstructing Human Rights; The Rules on Immunity and Intervention

When human rights are violated by people who represent a state – such as a head of state who orders rights violations or carries them out himself – it often happens that the national rights protection mechanisms, such as the courts and the police, do not assume their responsibility to protect. The individuals who have committed rights violations are not prosecuted by their own states, because they represent the state. They have control over the agencies that normally (should) prosecute rights violations.

This is de facto immunity. And this can extend even to the period after they have left power. Maybe they managed to make some kind of amnesty deal with the new democracy, or they just use their influence and their friends in order to pervert the justice system and the division of powers and to escape punishment.

But often these people – even when they have left power, such as former heads of state – enjoy not only de facto but also de juri immunity in national or even international law. Whatever the merits of the rules on immunity in international law, this can never be justified in cases involving rights violations. The theory of immunity says that heads of state or leading functionaries are not responsible for their actions. They represent their states and all their actions are “acts of state,” and therefore the state is responsible for these acts. Lower ranking officials are not responsible either because they can always hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible.

Only by transcending the principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment). This has been the main achievement of the Nuremberg Tribunal. The Charter of the Tribunal clearly states that individuals have international obligations that go beyond their national obligations or commands. Since Nuremberg, it is no longer possible to claim that international law only deals with “acts of state” and that individuals cannot be punished for the acts they commit as representatives of their state or as executives carrying out orders. Nuremberg has given individuals criminal responsibility in international law.

Citizens are no longer at the mercy of powerful individuals within their states. It has become more difficult for individuals to shed their responsibility and to hide behind their functions, immunities, privileges, or hierarchy. Individuals can be made internationally accountable for their actions if these actions are crimes under international law. The fact that national law is not applied, is silent in the matter, or even explicitly approves or imposes the actions does not guarantee an escape from justice.

One of the characteristics of international law is its priority over national law. Human rights especially, as far as they have become part of international law, have priority over national law. Violations of rights that are not punished by national law or that are explicitly ordered by national law can be crimes under international law, in which case international law has priority. Individuals or states can be sentenced and condemned by organs representative of the international community.

But this immediately raises the legal problem of international intervention, as does the right of international institutions to hear complaints by individuals whose rights are violated and who can’t find redress in their national courts, and the right of international institutions to monitor the human rights situation inside individual states. Intervention is forbidden under international law, and this prohibition is a part of international law which, like the rule on immunity, obstructs human rights. The Charter of the UN, although it mentions human rights as one of its aims, specifically prohibits intervention in so-called internal affairs of member states, in the intra-national relationships between states and their citizens (this is the infamous article 2, paragraph 7:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.

This article is often used against attempts to intervene for the sake of human rights. Even merely verbal criticism of rights violations is often supposed to be the type of “intervention” prohibited by article 2, paragraph 7. The “matters” referred to in the article are never precisely defined, so that every state is free to define them. Hence, intervention becomes practically impossible.

However, some acts clearly do not belong to these “matters”: violations of international law; attacks on international peace; and, according to some, systematic and extreme violations of human rights if these violations threaten international peace. Chapter VII of the Charter allows intervention in these cases following a decision by the Security Council, and article 2 explicitly provides an exception for this kind of intervention.

This is important for human rights, and today’s consensus on the definition of “matters” may even include grave violations that do not result in threats to peace. Some “internal matters,” which at first sight can benefit from article 2, paragraph 7, are clearly violations of other provisions of the Charter, e.g., structural violations of human rights such as apartheid (in particular article 55). In that case, some believe that the UN may take measures under Chapter VII (sanctions or even military intervention). Chapter VII can override article 2, paragraph 7, and is perhaps an instrument to enforce certain human rights in certain cases.

Self-determination and sovereignty are very important, but it is obvious that these concepts can easily be used to counter criticism of rights violations. The protection of states requires the doctrine of non-intervention and of the equality of sovereign states. Unfortunately, what is necessary for the protection of states is often harmful to human rights.

Although the views today are perhaps a bit more shaded, it is tradition to assume that the only legitimate enforcement actions of the UN agencies (so-called “collective measures” and “preventive or enforcement action” under Chapter VII) are actions directed at the protection or enforcement of international peace. This is important enough also for human rights, but it only includes actions necessary to enforce respect for human rights when those human rights are directly violated as a consequence of the absence of peace or when their violation may lead to breaches of peace.

Human Rights and International Law (7): Crimes Against Humanity

A crime against humanity is a large scale atrocity against a civilian population, such as genocide, ethnic cleansing or the massive killing of civilians during war, and is the highest level of criminal offense. It is either a government policy or a wide practice of atrocities tolerated, condoned or facilitated by a government. Atrocities such as murder, torture and rape are crimes against humanity only if they are large scale and part of a widespread or systematic practice organized or condoned by a government. Isolated atrocities are certainly human rights violations, and can perhaps even be war crimes, but they don’t fall into the category of crimes against humanity. (And acts which do not violate human rights can never be crimes against humanity, even if they are widespread and systematic and even if they cause suffering).

Crimes against humanity can take place during a war or in peace time, and can be committed by a state against its own citizens or against the citizens of another state.

Cultural Rights (9): Ethnic Cleansing

Ethnic cleansing is the violent displacement of an ethnic group from a particular territory in order to create an ethnically “clean” unit, i.e. a territorial unit composed of only one ethnic group. The means used to achieve ethnic unity are:

  • direct military force
  • police brutality
  • genocide
  • the threat of force
  • intimidation
  • rape
  • pogrom
  • demolition of housing, places of worship, infrastructure
  • discriminatory legislation or policies
  • tribal politics
  • economic exclusion
  • hate speech, propaganda
  • rewriting of history, fabrication of historical resentment
  • a combination of the above.

Given these various “tools”, it is not correct to equate ethnic cleansing with genocide. There are more or less violent forms of ethnic cleansing, although all forms contain some kind of force, otherwise one would speak merely of voluntary migration. Deportation or displacement of a group, even if effected by force, is not necessarily equivalent to destruction of that group.

Given the element of force it is correct to denounce all forms of ethnic cleansing, not only on the grounds of some kind of ideal of multiculturalism, but also on the grounds of the self-determination of the people involved, of their right to settle where they want, their freedom of movement etc. It is defined as a crime against humanity.

The best known cases of ethnic cleansing are:

  • Bosnia and Herzegovina in the 1990s
  • Iraq during the Iraq war
  • India and Pakistan during their partition
  • The Georgian-Abkhaz conflict
  • Rwanda during the genocide
  • The relocation of Native American peoples from their traditional areas
  • The forced removals of non-white populations during the apartheid era
  • The Palestinian exodus
  • Central and Eastern Europe during and immediately after World War II
  • Darfur
  • etc.

However, it seems that this tactic has been known to humanity since a long time. Some even believe that the Neanderthals were victims of ethnic cleansing.

Some of the justifications given in defense of ethnic cleansing are:

  • To remove the conditions for potential and actual opposition. According to Mao Zedong, guerrillas among a civilian population are fish in water. By draining the water, one disables the fish.
  • To create a separate state for one ethnic group. A nationalist believes that a people or a nation can only have an autonomous and authentic existence, according to their own traditions, language, values and norms, in a state of their own. A multicultural nation can never be legitimate according to nationalism, because one assumes that in such a state it is inevitable that some groups are ruled by others and hence do not have an authentic and autonomous existence. The only way to have homogeneous territories in our multicultural and melting-pot world with no clear territorial separation of groups within states, is the use of force.
  • To redeem a society that is literally “unclean” and “sick” because of the presence of inferior humans.