Sovereignty as duty to protect human rights.

Two major values in international law--an old one, respect for state sovereignty, and a more recent one, respect for human rights--were integrated with the adoption of the UN Charter. But their coexistence has not been easy; the two principles more often confronted than partnered. This article supports a modern concept of sovereignty that involves a duty to protect human rights.

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For many centuries, the principle of State sovereignty has been regarded as overwhelming and unconditional in international law. States trumped any attempts to limit or even question the absolutism of their sovereign power. An example is the 1919 Treaty of Versailles, which established a commission to investigate and identify persons, including the Kaiser of Germany Wilhelm II, as liable for war crimes, recommending the creation of an international tribunal. The victorious States, however, opposed such option, regarding the trial in international court of a head of State as "unprecedented in national and international law, contrary to the basic concept of national sovereignty". (1) They feared that such precedent might later turn against them. Similarly, the intention to prosecute the officials responsible for the Armenian genocide in 1915 failed for political reasons. When Hitler proclaimed his genocidal plans against the Jews and the Slavs, he was heard saying, "Who now remembers the Armenians?" (2) The impunity for horrific crimes against humanity committed during the First World War made possible even more horrific crimes during the Second World War.

In 1945, this lesson was learned, and international military tribunals were established to prosecute top State officials. The defense lawyers in Nuremburg argued that international law is exclusively concerned with the actions of sovereign States, not of individuals, and therefore the defendants should not be liable for international crimes. The judges, however, rejected this defence. In a landmark advance against the historical State-centric tradition, they made individuals directly accountable in international criminal law. But if individuals are bound by international law and can be prosecuted in an international court, then it must follow that they must equally be protected by such law. The idea of individual accountability logically twinned with a strong international sympathy toward individual human rights. (3) Accordingly, the recognition of individuals as subjects of international duties led to their recognition as beneficiaries of international rights. The individualization of the perpetrators' accountability was paralleled with the individualization of the care for the victims.

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The Second World War gave birth to two significant documents: the UN Charter established as one of its aims, "promoting and encouraging respect for human rights and fundamental freedoms for all without distinction"; and the Nuremberg Charter unequivocally raised the issue of individual accountability for war crimes and crimes against humanity. This dual process of duties in international law and individualization of rights has been rapidly codified: the Genocide Convention, the Geneva Conventions and their additional protocols, and the Universal Declaration of Human Rights, followed by two UN International Covenants--on Civil and Political Rights and on Economic, Social and Cultural Rights. Unfortunately, implementation has been unhurried.

The concern for human rights gradually inspired and shaped the decisions of the UN Security Council--the highest international authority empowered to define threats to peace and adopt enforcement measures. This development has not been easy. For many decades, the Council could unite and apply sanctions only on a few occasions. In 1950, it authorized States to intervene and restore the sovereignty of the Republic of Korea. In 1960, it adopted enforcement measures to preserve the sovereignty of the Republic of the Congo against a secessionist movement, applying its authority to a non-international armed conflict. In a major development of its powers from defending State sovereignty to defending human rights, the Council condemned and imposed sanctions against the racist regimes in southern Rhodesia (Zimbabwe) and South Africa. However, in many other instances, it lacked the will or faced the veto, and as a result murderous regimes like Pol Pot in Cambodia and Idi Amin in Uganda enjoyed impunity.

With the end of the cold war, the role of the United Nations has been revived. (4) Many situations involving systematic human rights violations--in the former Yugoslavia, Somalia, Liberia, Haiti, Rwanda, Timor-Leste, Sierra Leone and recently Sudan--have been qualified by the Security Council as threats to peace, thus opening legal prospects for intervention. In three instances--Kosovo, Afghanistan and Iraq--coalitions, motivated on different grounds and not authorized by the Council, intervened militarily in sovereign States. All these interventions had different levels of legitimacy and success, but can be united under one commonality: they all helped, sooner or later, to remove from power Governments that seriously violated basic human rights.

This accumulation of precedents led to a re-conceptualization of sovereignty, which no longer antagonizes but rather incorporates the concept of human rights. A State cannot pretend absolute sovereignty without demonstrating a duty to protect people's rights. As Stanley Hoffmann wrote: "The State that claims sovereignty deserves respect only as long as it protects the basic rights of its subjects. It is from their rights that it derives its own. When it violates them, what Walzer called 'the presumption of fit' between the Government and the governed vanishes, and the State's claim to full sovereignty falls with it." (5) When Governments fail to protect human rights, moreover in cases when they deliberately engage in policies leading to crimes against humanity or mass violations of human rights, the international community can intervene and exercise an extraterritorial duty to protect people at risk. The principle of sovereignty is not denied by such intervention; it refocuses from being an absolute control over certain territory to being a responsibility to govern in a certain manner. The sovereignty of States is no longer based on the right of Governments, kings, sheikhs or presidents to govern; it depends on their duty when governing to respect human beings. The sovereignty of States means the sovereignty of people, not of leaders.

The realization that human rights are equally important along with territorial integrity presents States with a dual responsibility: external respect for the sovereignty of other States; and internal respect for the dignity and well-being of its people. These two attitudes become integral; the recognition and respect of other States depends on whether they respect their own people. The 1933 Montevideo Convention on the Rights and Duties of States defined the State as a person of international law with the following qualifications: (a) a permanent population; (b) a defined territory; (c) Government; and (d) capacity to enter into relations with the other States. Today, one can complement this definition with a further qualification: the State is internationally recognized upon satisfactory protection of the rights of the people living on its territory.

The redefinition of sovereignty to include a duty to protect human rights has been paralleled with the appreciation and codification of individual accountability for international crimes. In parallel with respect for human rights, States have a duty to investigate, prosecute or extradite individual perpetrators. Again, if they fail and are unable or unwilling to do so, other States and international courts can step forward instead. In September 1998, former Chilean President Augusto Pinochet was arrested in London following a request for extradition from Spain. The charges were murder, disappearances and torture committed during his term in office. In January 2000, Hissene Habre, the former President of Chad, was indicted by the State Prosecutor of Senegal for similar offences. In May 1999, the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia issued an indictment for Slobodan Milosevic, the then President of Yugoslavia.

In April 2000, a Belgian Tribunal de premiere instance issued an international arrest warrant against Abdoulaye Y. Ndombasi, then acting Foreign Minister of the Democratic Republic of the Congo. This was a direct application of the principle of universal jurisdiction, stipulating that there are international crimes that can be prosecuted in any country by any fair trial based solely on the nature of the crime, without regard to territorial or personal jurisdiction. Sadly, the International Court of Justice in Congo v. Belgium found that the arrest warrant against Ndombasi failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs enjoyed under international law. I would not regard this decision as the "death sentence" on the principle of universal jurisdiction. The Court applied procedural rather than substantive immunity. The problem with the Belgian warrant was not in the principle but rather in the timing; it was issued before Ndombasi ceased to be in a ministerial capacity.

In February 2001, the Mexican Government decided to extradite former Argentine naval officer Ricardo Cavallo to face charges of genocide, torture and terrorism in Spain. This was the first case in which a person accused of crimes committed in one country had been arrested in a second and extradited to a third. By extraditing Cavallo, Mexico effectively recognized that another country (Spain) could exercise universal jurisdiction.

The advancement of the principles of universal jurisdiction and parallel establishment of international criminal courts are elements of an emerging judicial globalization, characterized by synchronized legal principles, jurisdiction, scope and elements of crimes, procedures, etc., where perpetrators can face various courts--international, domestic or foreign--but benefit from similar fair trial standards. In countries torn by civil wars, such as Sierra Leone, Timor-Leste, Cambodia and Haiti, domestic courts were sponsored by the United Nations to provide stronger legitimacy, acceptable standards of due process and judicial support. It is encouraging how justice for past crimes has been regarded in many places as a necessary element for peace. On the other hand, in situations where crimes against humanity are left unaccounted, the chances for peaceful solution look slim.

To conclude, the sovereignty of States is no longer a simple right to exercise power on a defined territory. It is rather a complex duty to exercise power in an acceptable manner. International law, although still State-centric in its main postulates, becomes more permissive regarding cross-border intervention to protect human rights and prosecution of individual offenders abroad.

Notes

1 Lyal Sunga, Individual Responsibility in International Law for Serious Human Rights Violations (1992), p. 23.

2 Quote from M. Cherif Bassiouni, Combating Impunity for International Crimes, University of Colorado Law Review, Vol. 71, Issue 2, p. 414.

3 Ramesh Thakur and Peter Malcontent, eds., From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (Tokyo: United Nations University Press, 2004).

4 Ramesh Thakur (ed), Past Imperfect, Future Uncertain: The United Nations at Fifty, New York, St. Martin's, 1998

5 S. Hoffmann The politics and ethics of military intervention, Survival, 37:4, 1995-96, p. 35.

Vesselin Popovski joined the United Nations University after working for the European Union TACIS project, "The Legal Protection of Individual Rights in Russia". Prior to that, he was a lecturer at Exeter University, United Kingdom. A former diplomat, he served as First Secretary at the Bulgarian Embassy in London from 1991 to 1996 and a research fellow at the North Atlantic Treaty Organization's Academic Forum Programme from 1996 to 1998.

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