Be careful. Legal at State was worried about this yesterday — Genocide finding
[in Rwanda] could commit USG [United States Government] to actually “do something.”
– Defense Department Memorandum, May 1, 1994
The egregious human rights violations during World War II, particularly the horror of the Holocaust, planted the seed that would germinate into the Universal Declaration of Human Rights (UDHR) in 1948. Although some international activities to protect human rights, abolish slavery, and promote labor rights existed prior to World War II, international efforts to protect the human rights if all people were largely dormant. Following World War II, the international human rights movement blossomed into a developed body of international law, primarily through an international treaty regime. Over time, the international community has strengthened its commitment to the promotion and protection of human rights. However, the great play of sovereignty often undercut meaningful progress.
The tension between state sovereignty and human rights rests at the heart of the debate regarding humanitarian intervention. Although the scope of state sovereignty is subject to varying interpretations, two aspects are central to the notion of sovereignty regardless of how it is defined. First, sovereignty encompasses “the notion that in every system of government there must be some absolute power of final decision.” Thus, sovereignty is “the legal identity of the state in international law, an equality with all other states, and the claim to be the sole official agent acting in international relations on behalf of a society.” Second, the notion of sovereignty is inextricably linked with the doctrine of non-intervention – i.e., the refusal of states to “subject the treatment they mete out their citizens to any independent external scrutiny.” Stephen Krasner refers to this notion of sovereignty as “Westphalian sovereignty,” which he defined as embodying the principles of non-interference and decision-making integrity.
Although the foregoing list is not exhaustive, these two aspects of sovereignty – independent decision-making authority and territorial integrity – capture the essence of sovereignty in its most simplified form. The U.N. Charter, “based [upon] the principle of sovereign equality of all of its Members,” reifies this interpretation of sovereignty in the U.N.’s foundational document. As one commentator has remarked, “[s]overeign equality and territorial integrity are cardinal principles enshrined in the U.N. Charter.”
Article 2(4) states that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” And Article 2(7) provides that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” Unlawful aggression under the Charter is “a crime against the peace” for which there may be international criminal responsibility.
Similar to the U.N. Charter, the Covenant of the League of Nations requires its members “to undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.” Furthermore, the practice of the States themselves reflect the importance of the non-intervention doctrine, as witnessed in the 1776 American Declaration of Independence, the 1778 Franco-American Treaty of Alliance and Treaty of Amity and Commerce, the 1917 Russian Decree on Peace and the Declaration of the Rights of Nations of Russia, and the 1938 Declaration of Lima concerning the principles governing American States.
The institutional restraints on humanitarian intervention within Article 2(4) and Article 2(7) of the U.N. Charter are subject to only two narrow exceptions: the self-defense provisions of Article 51 and the enforcement power of the Security Council under Chapter VII. According to critics of humanitarian intervention, if neither Article 51 nor Chapter VII has been triggered, unilateral intervention is an intrusion on state sovereignty. Proponents of humanitarian intervention, on the other hand, argue that intervention is permissible under Article 2(4) when the international community is paralyzed and the force is used as a last resort. In the wake of human rights abuses and tremendous loss of life, proponents often note, state sovereignty has been used to halt international action aimed at stopping or lessening human suffering.
In addition to the non-intervention norm, proponents of humanitarian intervention highlight a related roadblock to such intervention: the lack of political will. Although humanitarian intervention has indeed been abused in the past and its validity has been challenged on both doctrinal and policy grounds, a lack of political will is often the primary driving force crippling the international community in the face of grievous assaults on human rights. Political will, by its presence or absence, determines whether the international community will intervene.
As Secretary-General Ban Ki-moon stated, the recent crisis in Darfur “highlighted how inadequate our policy tools are and how fleeting is the political will to use them.” The current events in Syria only sharpen the salience of this point. The United Nations has repeatedly reminded the Syrian government of its responsibility to protect the civilian population, and has raised the alarm that “the scale and gravity of the violations indicate a serious possibility that crimes against humanity may have been committed and continue to be committed in Syria.” However, while it has condemned the violence, the Security Council has consistently reaffirmed the Council’s “strong commitment to the sovereignty . . . and territorial integrity of Syria.” And when the Security Council has had the opportunity to take stronger action against Syria, Permanent Members Russia and China have exercised their veto power, twice (October 2011 and February 2012).
In April 2000, then Secretary-General Kofi Annan challenged the international community’s lack of political will in his Millennium Report to the General Assembly. Annan recognized that sanctioning humanitarian intervention could “encourage secessionist movements deliberately to provoke governments into committing gross violations of human rights in order to trigger external interventions”; that it could “become a cover for gratuitous interference in the internal affairs of sovereign states”; and that “there is little consistency in the practice of intervention . . . except that weak states are far more likely to be subjected to it than strong ones.” But to these critics, Annan posed the following question: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?”
Note: This article is Part Two in a series of articles, entitled “Syria and ‘The Mantle of Leadership,'” produced by Of Politics and Men and exploring the international communities responsibility to both promote and protect human rights. A list of all articles in this series can be found in the Archives.