International law and the problem of evil.

AuthorWeisburd, A. Mark
PositionStates' rights or duties to respond to massive evil

ABSTRACT

In response to recent violations of human rights, some within the international legal community have called not only for intervention but for the establishment of an international court with jurisdiction to hear claims against persons alleged to have committed those violations. This Article questions the premise that it is necessary, or even desirable, for the international legal community to mandate intervention in such circumstances.

First, the Article examines the authority for international intervention to forestall massive human rights violations. Using the recent examples including Kosovo and East Timor, the Author compares scholarly responses with respect to both the human rights violations and the subsequent interventions. While the Author concludes that there may be some reason to believe that humanitarian interventions are legal, there is no clear authority that states have an affirmative obligation to forestall massive human rights violations in other states.

Second, the Article questions whether it is possible to implement a rule requiring international intervention to prevent such outbreaks of violence. Recognition of the difficulty of responding to human rights violations around the world complicates any formulation of a rule requiring action against evil.

Third, the Author questions the propriety of such a rule given other, sometimes conflicting, international rules. For example, many norms of international law seek to minimize interstate uses of force. In addition, principles of self-determination act against the adoption of a rule requiring intervention.

Finally, the Author casts doubt on the rationales for legal rules specifying international reactions to outbreaks of violence and the creation of institutions to respond to them. The Author questions the utility and appropriateness of such policies and institutions while conceding the purposes for their creation may be valid.

While multinational, humanitarian responses may be appropriate in certain circumstances, they should not be legally mandated. The Author concludes that legalization of international responses to evil would be a mistake.

  1. INTRODUCTION

    More and more frequently, one encounters the view that, as a matter of international law, the international community should, or even must, respond to instances of massive and extreme social evils. For example, Kofi Annan, Secretary-General of the United Nations, at the opening of the General Assembly's session in September 1999, called for "unity behind the principle that massive and systematic violations of human rights--wherever they may take place--should not be allowed to stand," and made reference to the "developing international norm in favour of intervention to protect civilians from wholesale slaughter."(1) The Secretary-General repeated this point in November 1999 in his report to the General Assembly on the capture of the UN "safe area" at Srebrenica in Bosnia-Hersegovina in July 1995:

    The cardinal lesson of Srebrenica is that a deliberate and systematic attempt to terrorize, expel[,] or murder an entire people must be met decisively with all necessary means, and with the political will to carry the policy through to its logical conclusion. In the Balkans, in this decade, this lesson has had to be learned not once, but twice. In both instances, in Bosnia and in Kosovo, the international community tried to reach a negotiated settlement with an unscrupulous and murderous regime. In both instances it required the use of force to bring a halt to the planned and systematic killing and expulsion of civilians.(2) The report prepared for the United Nations regarding the 1994 genocide in Rwanda reached a similar conclusion: "The United Nations--and in particular the Security Council and troop-contributing countries--must be prepared to act to prevent acts of genocide or gross violations of human rights wherever they may take place. The political will to act should not be subject to double standards."(3)

    The report by the International Panel of Eminent Personalities appointed by the Organization of African Unity (OAU) to investigate the Rwanda genocide (IPEP Report)(4) carried this reasoning one step further. After concluding that various states and the United Nations had failed to take steps that could have averted the genocide or at least reduced the number of deaths,(5) the report asserted:

    Apologies alone are not adequate. In the name of both justice and accountability, reparations are owed to Rwanda by actors in the international community for their roles before, during, and since the genocide. The case of Germany after World War Two is pertinent here. We call on the UN secretary-general to establish a commission to determine a formula for reparations and to identify which countries should be obligated to pay, based on the principles set out in the report, titled The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, submitted January 18, 2000, to the UN Economic and Social Council.(6) The response within the international legal community to massive outbreaks of evil has not been limited to insistence upon a duty of intervention; it also can be seen to include the establishment of an international--or, more properly, supranational--court with jurisdiction to try individuals alleged to have committed certain human rights violations. In the summer of 1998, a large number of states negotiated a treaty called the Rome Statute of the International Criminal Court (Rome Statute); under the Rome Statute, this International Criminal Court (ICC) comes into existence when the Statute goes into effect.(7) The Rome Statute further provides that the ICC can assert jurisdiction in cases against individuals alleged to have perpetrated a number of different types of human rights violations(8) if such individuals are nationals of states parties to it or are alleged to have committed offenses within the Court's jurisdiction on the territory of a state party.(9) The jurisdiction of the court is concurrent with that of individual countries; matters that a state has either prosecuted or investigated and decided not to prosecute are "inadmissable" before the ICC, unless the state in question is "unwilling or unable genuinely" to investigate or to prosecute.(10) The Statute, however, vests in the ICC the authority to decide whether a given case meets the criteria for inadmissability. In these circumstances, as Professor Alvarez has pointed out, it is difficult to determine the extent to which the ICC, assuming it eventually begins functioning, will in fact defer to investigations and prosecutions by states.(11)

    Taken together, the statements quoted above and the negotiation of the Rome Statute illustrate a number of propositions. First, some states and some persons whose views are entitled to weight clearly see the international community as possessing the capacity to decide whether to impose duties on states to forestall massive human rights violations and to punish individuals for engaging in such violations. Second, there is a widespread view that such duties have in fact been imposed, and take the form of quite general rules, applicable without regard to the cultural peculiarities important in particular situations. Third, the duties are owed to the international community. This point is most obvious with respect to states' duties to forestall human rights violations, since the duty is asserted to be created by a rule promulgated by the international community. It also applies, however, to the duty of individuals to refrain from violating human rights because, as noted above, the ICC is vested with the ultimate authority to decide whether a state's treatment of any particular case is "genuine." Further, a corollary of this latter proposition is that the authority of the ICC should supersede that of states in those cases in which a state has not exercised its authority in a way the ICC decides was genuine.

    How can one assess the argument that international law imposes, and should impose, duties regarding massive outbreaks of evils? This Article attempts to do so by considering four aspects of this proposition. The first is the question of authority--by what process are these rules supposed to have acquired the status of law? The answer to this question is obvious with respect to the ICC, but much less clear with respect to the existence of a right or duty on the part of states to forestall massive human rights violations. The second question is the implementability of the rule: would it be physically possible to actually put the rule into force? The third question is that of the fit of such rules into the general corpus of international law. Would rules of the type described above conflict with other rules, promulgated for other purposes? The last question is the desirability of the apparent objective of the rule--why is it thought that institutionalizing such rules would be a good thing?

    As will be shown by the discussion of these aspects of the question of the legalization of international responses to massive evil, this Article concludes that such legalization would be a mistake. The point, emphatically, is not that such international responses are never appropriate. It is, instead, that massive violations of human rights differ so much from one another in the issues they present that no limited menu of responses, such as a legal rule would require, can be adequate to deal with either the questions of how outside states ought to react to a given atrocity, or how, and by whom, the perpetrators of atrocities should be called to account. While international approaches will be optimal, or at least acceptable, in some cases, in others they may do actual harm. Indeed, as will be argued below, the difficulties in internationalizing such matters are so great that it would appear that the preference for...

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