Raoul Wallenberg: a man ahead of his time - and ours as well.

• Author: Gibney, Mark
• Position: Symposium on the Refugee Crisis

Raoul Wallenberg was certainly not a man of his time. When the Swedish diplomat carried out his heroic measures, thereby saving the lives of an estimated 100,000 Hungarian Jews, international law bore only a passing resemblance to what it looks like today. Perhaps the most obvious difference is that there was no such thing as international human rights law. Instead, international law focused on states and the relationship between states, which also meant that individuals played a subservient role--if they played any role at all.

What also differentiates Wallenberg's era from the present is the manner in which we view the principle of state sovereignty. Before World War II, state sovereignty was virtually sacrosanct. What this meant in practice was that what a state did within its own territorial borders--no matter how cruel or barbaric these policies and practices happened to be--was treated by the rest of the international community as a purely "domestic" affair that was solely the concern of that particular state. In that way, and as perverse as this will sound to us today, if Germany had not invaded neighboring countries and had instead limited the reach of its "Final Solution" to its own domestic borders, it would not have acted in violation of international law.

What also distinguishes the pre-World War II period from the present, at least in theory, is the way we think of the "other," namely, foreign nationals, especially those who look and act differently and perhaps who worship a different god. This was a period of time where "science" had determined that there was a racial hierarchy, with the white race sitting quite comfortably on top. Because of this, colonialism and racial segregation went virtually unquestioned, or at least unquestioned by those who ruled. Certainly, the Holocaust was the direct result of these prevalent notions of that time. As Daniel Goldhagen has argued in his searing book Hitler's Willing Executioners, (1) the mission to eliminate what was perceived as a Jewish vermin was widespread throughout all segments of German society, but what we also know is that this poison spread far beyond this one country.

In that way, then, Raoul Wallenberg not only displayed incredible personal courage, but when he acted he did so in direct contravention to the dominant legal and moral order. (2) Frequently, if not systematically, Cain's cry to the Lord--Am I my brother's keeper?--went unanswered. And the governing legal standards of that age provided the perfect cover for all those who could not see the humanity in the desperate people around them.

Largely as a reaction to the Holocaust and the other unprecedented horrors of World War II, much of this old order was discarded in the war's immediate aftermath and it was accomplished through the development of international human rights law. Law is meaningless without enforcement and thus one essential element of this was the prosecution of Nazi and Japanese war criminals. The promise, which turned out to be illusory for decades thereafter, was that those who violated international humanitarian and human rights standards would be tried and appropriately punished.

Also at this same time, the United Nations was established to achieve a more peaceful world and to promote and to protect human rights. And in December 1948, within a period of two days, the world witnessed two monumental achievements in the realm of human rights. One was the promulgation of the Universal Declaration of Human Rights, (3) which remains the most revolutionary document in all of history.

The other was the adoption by the U.N. General Assembly of the Genocide Convention. (4) Article 1 of the Convention reads: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." Although this language from Article 1 might appear to be little more than typical dry legalese, what it demands of states is nothing short of astounding. As later explained by the International Court of Justice in Bosnia v. Serbia, (5) under the Genocide Convention each state party dedicates itself to "take all measures to prevent genocide which are within its power, and which might have contributed to preventing genocide." (6) What this demands is "due diligence," which is to be determined for each state on a case by case basis, according to these kinds of factors:

The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing genocide. This capacity itself depends, among other things, on the geographical distances of the States concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between authorities of that State and the main actors in the events. The State's capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State's capacity to influence may vary depending on its particular legal position vis-a-vis the situations and persons facing the danger, or the reality, of genocide. (7) After enunciating this standard, the ICJ held that during the period under consideration, Serbia was in fact "in a position of influence over the Bosnian Serbs ... unlike that of any of the other States parties to the Genocide Convention owing to the strength of the political, military and financial links between [Serbia] on the one hand and the [Bosnian Serbs] on the other." (8) The Court proceeded to condemn the Serb government's unwillingness to act to prevent genocide: "the Respondent has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed...." (9) It then went on to explain its ruling further:

for a State to be held responsible for breaching its obligation of prevention, it does not need to be proven that the State concerned definitely had the power to prevent genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them. (10) The larger point is that states are obligated to do more, actually much more, than simply not engage in genocide themselves. Instead, all have a legal obligation to be vigilant to ensure that some other state also does not act in such manner, and if this does occur, to take immediate measures to stop these atrocities and to work towards bringing the perpetrators to justice. In addition, because the obligations under the Convention are of conduct and not of result, each state has to act to the utmost of its abilities and its powers--even if other states fail to carry out their own obligations under the Convention, and even if the efforts of this state (or even all states combined) would not be able to effectuate this result. Through his long and tireless efforts, Raphael Lempkin is generally thought of as the father of the Genocide Convention. (11) While this is certainly true, the Convention is also a reflection of the spirit and the work of Raoul Wallenberg. It is not enough not to carry out harms ourselves. Rather, what we must do--and from 1948 on, what international human rights law obligates states to do--is to act to protect others.

1. THE OBLIGATION TO PREVENT

   No other international or regional human rights convention uses the "prevent" language that the Genocide Convention does. (12) However, I would argue that all human rights treaties are based on this exact same principle. When a...