Monday, February 07, 2005

Darfur, Rwanda and the Limits of International Human Rights Law

I wanted to return, briefly, to last week's discussion of Darfur. As Julian noted, the UN report concluded that, while crimes against humanity have occurred and should be referred to the ICC, the atrocities do not meet the definition of genocide under international law. Lay observers are scratching their heads over the legal distinction between certain criminal "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group" (from the Genocide Convention) and criminal acts "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack," (from the definition of crimes against humanity in the Rome Statute of the ICC) and how, as many international lawyers maintain, that distinction can possibly make a difference in terms of what the international community should do about it.

This technical distinction and the current squabbling over the ICC reference demonstrate the real limits of international law in the context of mass atrocities. Indeed, on the question of the Sudanese government's own obligations, the UN report tends to underscore the skeptical view that international law makes no difference in the behavior of bad regimes:

The Sudan is bound by a number of international treaties on human rights.
These include the International Covenant on Civil and Political Rights
(ICCPR), the International Covenant on Economic, Social and Cultural Rights
(ICESCR), the Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Rights of the Child (CRC). The Sudan has signed, but not yet ratified, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. In contrast, the Sudan has not ratified the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the Convention on the Elimination of Discrimination Against Women. At regional level, the Sudan has ratified the African Charter on Human and Peoples’ Rights. As a State party to these various treaties, the Sudan is legally bound to respect, protect and fulfill the human rights of those within its jurisdiction.


So why, if Sudan is a party to all these treaties and the UN has concluded that violations of these obligations have taken place, is there any debate about what the rest of the international community should do? The international system is, at bottom, voluntary, and Sudan has voluntarily agreed to the most basic of human rights obligations. (And, on the question of genocide, most scholars agree that the illegality of genocide is one of the jus cogens norms in international law, i.e., an obligation which rises to the level of universality and can never be abrogated.) The simple answer to why bad regimes sign onto obligations they have no intention of meeting is that they can. Oona Hathaway in her excellent empirical examination of human rights treaties, Do Human Rights Treaties Make a Difference?, presents a framework for understanding why states sign, but do not comply with, human rights treaties, including the fact that rights abusive regimes may reap gains from the international community through mere accession to a treaty by appearing to "do the right thing." The harder question to answer is why the rest of the world lets them get away with it.

Rwanda, which was supposed to be the last "never again" moment for the African continent, offers some important lessons about this question. The central lessons of Rwanda have little to do with criminal prosecutions and everything to do with effective monitoring of warning signs of extreme social hatred, making sound international political decisions that apply coercive measures to perpetrators, and understanding the appropriate use of military interventions -- including effective rules of engagement in the midst of ongoing atrocities. In fact, Human Rights Watch, a great supporter of the ICC, published this list of the ten lessons learned about Rwanda; not one of them mentions prosecutions. The UN Report evaluating the Rwanda genocide was even more blunt: with a couple of thousand additional troops on the ground, and clearer rules of engagement, hundreds of thousands of lives could have been saved.

Viewed in light of the lessons of Rwanda, the ICC discussion about Darfur seems so clearly beside the point at this time. Darfur needs military intervention with teeth. There may be important legal reasons to preserve the distinction between genocide and other crimes against humanity. But it should not affect political responses to Darfur. As long as the Security Council is hamstrung because of obstacles thrown up by Russia and China -- both of whom have much to gain from their close relationships with the Khartoum regime -- the US and the EU should work together to bring about an effective non-UN-based military intervention.

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I presume, Peggy, that you are not one of those international lawyers worried about the U.N. Charter's prohibition on the use of force without Security Council authorization? If you think the so-called humanitarian exception applies here, doesn't this make the international law determination, however, of a "crime against humanity" a crucial one? Or do you think the law is not a useful tool to analyze states' decisions to use or not to use military force?

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