Setback for Human Rights: the ‘New Munich’ of International Relations

To reach this goal, the use of force has been banned from international relations, except in self-defense. Saudi aggression, with the help of its allies, against Yemen has made this country the scene of the greatest humanitarian disaster currently; Syria has become the geopolitical battleground of the great powers. We must not forget also the humanitarian and political chaos that resulted from the unlawful aggression of the United States against Iraq in 2003 and from the authorized aggression of France and of its allies against Libya in 2011. They are causes of migrants wandering the world.

Civilian populations are the main victims, especially the most vulnerable, namely women and children. The acts committed are crimes against humanity according to the current norms. Witness the massive massacres and deportations of the Rohingya minority in Burma; widespread sexual abuses in endless wars between armed groups in Central Africa; the beleaguered and hungry Palestinian population in the Gaza open-air prison and the Palestinian people still waiting for the implementation of UN resolutions. Finally, one must not forget the 200 million migrants and about 40 million “modern” slaves.

The so-called UN policy of prevention of these crimes or the concept of “responsibility to protect” (RTP) will remain wishful thinking as long as impunity prevails, not only for the present crimes, but also for the crimes of the past.

Who Protects Universal Values?

International law clearly imposes obligations on states: the most serious international crimes (state aggression, genocide, heavy war crimes, torture, slavery, racial discrimination) fall under the peremptory norms of international law to which States can neither derogate (jus cogens) nor ignore (erga omnes obligations). The failure of states to respect those standards or obligations may engage their international legal responsibility.

The International Court of Justice (ICJ), which deals with interstate disputes, remains very cautious about the scope of these standards and obligations.  Its rendered judgments or advisory opinions clearly recognize the existence of peremptory norms opposable to every country. But at the same time, the Court has found arguments, in each case it had to review, for not drawing the consequences of their violations, relying upon its absence of jurisdictional competence or procedural hindrances such as state immunities. This “political” sidestep comes to a deadlock: there are peremptory norms that are challenged by standard rules of procedure. This is precisely what the Institute of International Law (gathering the most renowned international lawyers) tried to circumvent in its 2009 resolution: “Pursuant to treaties and customary international law, States have an obligation to prevent and suppress international crimes. Immunities should not constitute an obstacle to the appropriate reparation to which victims of crimes addressed by this Resolution are entitled.”

Apart from bilateral disputes, only the General Assembly or the United Nations Security Council could refer to the ICJ for violations of international law norms binding on all countries.

The United Nations’ decision-making system in that perspective is completely paralyzed by the five major nuclear powers, which have arrogated to themselves a permanent seat on the Security Council with a right to veto. The objectives of the Charter being no longer respected, it is obvious that decisions are blocked by one or the other of the five superpowers when its interest is threatened. The equality of nations under the principles of the Charter is nothing but a chimera. The double standard is the de facto norm. Besides, some powerful states refuse the authority of the ICJ.

This two-tiered regime also exists in international criminal law: it is easier to bring the criminals and torturers of weaker nations to the International Criminal Court (ICC) than those of the powerful ones. The latter have such political and economic influence that third-party states do not dare enforce their duty to engage the responsibility of the leaders of those countries that commit wrongful acts (The Belgian legislator urgently adopted in 2003 measures seriously limiting the universal jurisdiction of the Belgian courts, to avoid examining the complaints filed against Ariel Sharon for the massacres of Palestinians in Lebanon in 1982 and against George Bush Sr. for alleged war crimes in Iraq in 1991; in 2006 the Attorney General of Germany refused to consider a complaint against G. W. Bush’s government team for acts of torture committed in Iraq and Guantanamo during the illegal war of 2003). The violation of the principle of equality of nations has become so blatant that it can seriously be said that the United Nations system is inoperative. Ian Brownlie, a contemporary jurist observes that: “international law clearly exists for decision-makers such as prosperous states or transnational networks with resources.”

Let us take an emblematic example of the “double standards” practiced by the United States: on the one hand they persist in targeting Iran, imposing unilaterally drastic economic and financial sanctions that will reduce the Iranian population to poverty and may trigger a health crisis, while Iran does not present any proven threat to any neighboring country; moreover it complies with its international commitments under the Nuclear Agreement, and finally is subjected to such sanctions by a country that has supported and armed Iraq to invade it. That war claimed the lives of half a million Iranians between 1980 and 1988. In parallel, the United States supports Israel’s policy of colonizing the Palestinian territories, in total violation of the resolutions adopted by the United Nations since 1948 and in spite of the war crimes and crimes against humanity committed by that State in the occupied territories. One can only insist on the exemplarity that the first economic and military power in the world should instead display.

Is the Era of Human Rights Over?

This is what another author, David Kennedy, believes: “I am not the first to notice that human rights are a late twentieth century project and that is now, in some sense, over.” Human rights law, which is a branch of international law, has undergone a virtuous evolution between 1945 and the beginning of the 2000s. A particular reinforced collective interest of states has arisen with the end of the cold war.

The Universal Declaration of Human Rights (UDHR), adopted in March 1948, is also a direct consequence of the Second World War. Its preamble considers “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world… disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people… .”

This founding text is of a declaratory nature, but was followed in 1966, 20 years later, by the adoption of the International Covenant on Civil and Political Rights, an international treaty that binds its signatories and members (171 in all). It took another 10 years, March 1976, for its enforcement. Despite the cold war and a reservation on the universalism of human rights, the USSR signed this treaty in 1968. China did it in 1998.

Under the presidency of Eleanor Roosevelt, the drafting committee included representatives from China, Haiti, Australia, Chile, France, the United States, the USSR, United Kingdom, and Canada. Despite this regional diversity of authors, the corpus of human rights is considered a Western draft and suspected as such to be a tool of influence over the rest of the world, replacing the imperialist and colonialist episodes that preceded it. The grievances are numerous and the challenge of the human rights system goes beyond the anti-Western ideological argument. It calls into question the primacy of rights and puts forward communitarian demands or societal differences, especially on issues relating to the death penalty; women’s rights, abortion, surrogacy, etc.; traditional family rights versus LGBT rights. In other words its universalism is challenged, some countries claiming national peculiarities, some others cultural and religious practices or security policies (anti-terrorism).

The European Court, which is charged with the enforcement and interpretation of the European Convention on Human Rights, has established an even higher and more progressive standard of human rights within the Council of Europe system. Meanwhile, today its judicial authority is challenged by some member countries (see my article https://mirrorspectator.com/2017/11/30/armenian-case-european-judiciary-beyond-statements/ ) such as Turkey, Russia, Great Britain, and Italy, in the name of their judicial sovereignty and societal policies.

Between 1899 and 2001, although human rights and humanity “fundamental considerations” have contributed to “humanize” the international law, but Theodore Meron considers “that one must not exaggerate the influence of human rights on international law in areas such as state territory or settlement of disputes.” Obviously, international law is primarily founded on the basis of the Treaty of Westphalia (1648), which established a law to the service of States and for the regulation of their relations. The major foundation of the Treaty is national sovereignty. The universal principles don’t govern states. While the use of force and external aggression are clearly prohibited, violations of human rights within the territories remain domestic affairs. At a time of retreat to nationalism and popular revolts against social inequalities, there is an increased risk of violations of human rights. However, absent a better international legal order, it is safer to safeguard the current framework. Brownlie concludes: “Whatever its shortcomings, international law also exists as a promise of justice and thus an encouragement for political transformation.”

Is ‘Sovereign Humanity a Utopia?

“Sovereign humanity” (Olivier de Frouville) is a dream that seems far from being realized. The subjects of law are individuals, not states. The Westphalian model, an interstate and subjectivist model, and the lack of coercive power of the international community for the enforcement of international judicial decisions are contrary to this vision. The preamble of the Rome Statute creating the ICC participates in building the model of sovereign humanity when it recalls that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity”, recognizes that “such grave crimes threaten the peace, security and well-being of the world”, and affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. Finally the State parties are determined “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. However, once again, some powerful states escape this justice, because they did not accept the jurisdiction of the Court.

Human Rights’ Immediate Challenges

The question of the impunity of states and the fact that the international legal order’s existence relies upon the good will of the World Powers remain major challenges. The Charter of United Nations remains an ideal (Pierre-Marie Dupuy) and the “international community” is still looking for its definition. New threats have emerged for human rights and peace in the world: the eruption and influence of new technologies in domestic and external political arenas, environmental global issues, and the resurgence of religious obscurantism. One of the immediate issues is to put into perspective the foundations of the Universal Declaration of Human Rights — the principles of freedom, equality and human dignity — with the development of new technologies, which includes both new communication and information technologies and biotechnologies.

Human rights prospered between 1945 and 2001, even during the Cold War between the Western bloc and the Eastern bloc, despite the antagonisms of liberalism and communism. It is because the two blocs were above all attached to the ideology of progress. No one can doubt that the Chinese bloc is also on the same page. That is why United States should reconsider its unilateralist stance and its strategy of confrontation with the European, Russian and Chinese blocs for the good of humanity and the future of planet Earth. That one is unique is not extensible and must be protected. There is no alternative. The vision of the future must be imagined in common, and states will have to agree giving up some of their sovereignty to protect common environment, restore international order, combat obscurantism and reaffirm human rights.

[Philippe Raffi Kalfayan is a Lawyer, Lecturer in International Law and a former Secretary General of FIDH (International Federation of Human Rights). He is a regular columnist for the Mirror-Spectator.]