THE PERVERSION OF SOVEREIGNTY
When UN Secretary General Kofi Annan delivered his annual address to the General Assembly in 1999, he bluntly reminded the gathered heads of state of the UN’s failure to act to stop ethnic cleansing earlier that year in Kosovo – a failure that had in turn provoked NATO to initiate an air war over Serbia without Security Council approval. That episode, Annan asserted, “has revealed the core challenge to the Security Council and the United Nations as a whole in the next century. to forge unity behind the principle that massive and systematic violations of human rights – wherever they may take place should not be allowed to stand ” Annan declared that the UN must embrace the “developing international norm in favor of intervention to protect civilians from whole-sale slaughter.”
The norm Annan cited had, of course, begun to take root in the aftermath of the genocide in Rwanda, which the world had witnessed with little more than a cry of anguished gull and the ethnic cleansing and mass death in Bosnia, to which the UN Security Council had replied with a humanitarian mission protected by ill-equipped and outnumbered peacekeepers. Annan had been sounding this theme for the previous eighteen months, promoting hope across the West that the UN, and the Security Council, might eventually discover its moral purpose
That was in the West. In much of “the global South” – the Third World the question of “humanitarian intervention” had a much different coloration and after Annan and several others spoke, Algerian President Abdelaziz Bouteflika, an old lion of the developing world and the chairman of the Organization of African Unity, stood at the podium and offered up a litany of complaints against the industrialized world. which he said, used its dominance of global institutions to enhance its power at the expense of the poor. He asked if this norm of intervention would de deployed “only in weak or weakened states”. or in “all states without distinction ” Bouteflika made it plain that the former possibility was by far likelier. Humanitarian intervention was but the latest tactic of neo-colonialism. “We firmly believe” he said, “that interference in internal affairs may take place only with the consent of the state in question.”
With his speech, Annan did not so much open as reveal a fault line of global politics. In trying to convert an incipient practice into a worldwide norm. Annan had forced into the open a rancorous argument over the significance, and the salience, of sovereignty. Annan felt that he had to instigate the debate in order to gain consensus on the question. And one could argue that he succeeded handsomely. since heads of state gathered for another such meeting six years later unanimously approved the doctrine of “the responsibility
to protect,” a re-formulated descendant of humanitarian intervention.
But that’s too optimistic a view, “Sovereignty” has become an inflamed concept and not only in matters of intervention. The battle lines seem, if anything, more entrenched today than they were nine years ago: some former neutrals have joined the camp of the sovereign absolutists May be a President Barack Obama will defuse some of the tensions But the problem existed well before George W. Bush made it worse.
The idea that sovereignty does not confer upon the sovereign an absolute right to do as he wishes with his citizens, or with others who happen to fall under his sway, greatly predates the 1990s. The first Geneva Convention. signed in 1864, obliged states to extend certain protections to citizens in occupied territories. World War II, and above all the Holocaust, put an end to the principle of absolute sovereignty that had dominated political theory and
practice since the Peace of Westphalia in 1648. First the UN Charter, and then the UN Declaration of Human Rights. explicitly asserted that the state has an obligation to protect and advance individual rights. The Convention on the Prevention and Punishment of the Crime of Genocide in 1948 made the inadmissibility of genocidal violence a matter of international law.
But the idea of limited or conditional sovereignty was just that – an idea. In practice, the UN was governed by Article 2(7) of the Charter, which stipulates that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” (Defenders of sovereign rights tend to forget about the admonition, in the ensuing clause, that “this principle shall not prejudice the application of enforcement measures under Chapter VII,” which authorizes the Security Council to respond to aggression.) Anything contained within a state’s borders, inducing the most heinous vio4ations of human rights, was understood to fall into the realm of domestic jurisdiction. The UN
had been created as a globalized mutual-defense pact; it had become, over the years, the locus classics of the principle of sovereignty, a place where all states were equal, and equally inviolable.
And then the Cold War ended. As impoverished and enfeebled states were abandoned by their one-time patrons, the phenomenon of the ‘failed state’ emerged – in Somalia. Sierra Leone, Haiti, Afghanistan and elsewhere. The chief threat both to the security of ordinary people and to a stable world order was not the aggressive designs of states. as it had been from the time of the founding of the UN. but the violent implosion of these dying stars. This very rapid change in the nature of war led to an equally swift change in the realm of Ideas, for the protections traditionally afforded victims of inter-state aggression had become a kind of Maginot Line Citizens would henceforth have to be protected from their own rulers.
The idea of humanitarian intervention was Popularized in the late 1980s by Bernard Kouchner. a founder of Medecins Sans Frontil res and then France’s minister for humanitarian affairs Kouchner argued for adroit d’ingerence, or right of intervention, in the face of atrocities, tough at the time he had in mind interventions conducted not by armies but by humanitarian organizations. And in 1991. the UN Security Council authorized a massive humanitarian campaign. backed by military force. to protect Kurds inside Saddam Hussain’s territory from the consequences of Iraq’s campaign of forced removal.
Then came the sickening failures in Somalia, Rwanda and Bosnia, when the world did nothing, or much too little and much too late. In Somalia. leading NGOs, including Oxfam USA and CARE, argued for an armed intervention to protect the massive humanitarian effort In Bosnia, advocates took the case yet one step further, declaring that the only way to hair
Seth depredations was to stop treating the situation as a humanitarian crisis and embrace the need for military action Bosnia, and then Rwanda, turned humanitarian intervention into the great moral issue of international affairs, bringing together figures from the European left such as Kouchner and Joschka Fischer, American liberal interventionists” like Paul Berman and Christopher kitchens (not then a conservative), and national ‘greatness conservatives’ like William Kristen and Robert. Kagan.
The argument for humanitarian intervention finally crystallized when Slobodan Milosevic extended to Kosovo his (vinous campaign to redraw the Balkan map Western elites – and, to a lesser extent, western publics – demanded a forceful response. Annan, strikingly, refused to condemn the NATO air war. though the tack of Security Council approval rendered it illegal by the standards of international law A month into the war, British Prime Minister Tony Blair gave a speech in Chicago in which he defended the campaign as ‘a just war, based not on any territorial ambitions but on values.” and then sought to reconceive just-war principles for a new, globalized world. He wound up sounding very much like Kofi Annan. “The most pressing foreign policy problem we face.” Blair said. “is to identify the circumstances in which we should get actively involved in other people’s conflicts While we should not “jettison too readily” the doctrine of noninterference, that principle ‘must be qualified In important respects. Acts of genocide can never be a purely internal
But humanitarian intervention was only the most forceful expression of the challenge to sovereign absolutism. When we think of the peacekeeping missions of the time, we mostly recall the feckless efforts in the Balkans and elsewhere. In fact, such missions grew rapidly in Size and ambition, blurring the sharp line between the. consensual and me coercive, and thus between boistering sovereignty
and confronting it. As early as 1994, the Security Council agreed to dispatch an American-led force to Haiti in order to restore the country’s democratically elected president – a political, rather than a humanitarian, intervention. In 1999, the government of Indonesia agreed, under immense international pressure, to accept a heavily armed peacekeeping force to halt ongoing violence in East Timor. By the end of the decade, peacekeeping was no longer an exercise in separating warring states from one another, as it had been since the mid-1950s, it was a means of stopping civil wars.
In a yet broader sense. the Westphalian notion of sovereignty increasingly gave ground in the post-Cold War era to new human rights principles governing the rights of women, of children, and of refugees and displaced persons, to new mechanisms of enforcement of such principles, including the International Criminal Court and the doctrine of universal jurisdiction over mass crimes; and to new species of monitoring, whether in the form of UN or regional organs or. perhaps more importantly, nongovernmental bodies like Human Rights Watch or Medecins Sans Frontii”res In each case, the rights of citizens were understood to take precedence over the rights of states. The burgeoning human rights movement accepted both fundamental claims of the individual against the state and the obligation of outsiders to act to protect those claims. And the UN was very much the site for this act of moral and political rebalancing
After the stinging reception of his 1999 General Assembly speech, Annan retired from the fray and let others advance this “developing international norm.” The following year, the Canadian government established the International Commission on Intervention and State Sovereignty to try to find a way out of the thicket into which Annan had stumbled. The commission, which recruited members
equally from the developed and developing worlds. reformulated the underlying doctrine. All states, the ICISS report concluded, had a “responsibility to protect” their own citzens from atrocities; should they prove ‘unable or unwilling” to do so. that responsibility moved to the international community, acting through the UN Security Council Moreover, the essence of this responsibility was to prevent atrocities rather than to react once they had occurred: and the actions required for prevention would often be non-lethal, non-coercive, and even non-urgent. The shift from a right of others to intervene to the responsibility of all to protect. and from a focus on military response to non-military prevention was designed, as Gareth Evans. the former foreign minister of Australia, wrote, ’10 find new ground on which to constructively engage to mollify and persuade I cord World critics of humanitarian intervention.
It worked. A number of developing countries in Africa and Latin America (fewer in Asia) became advocates of the responsibility to protect In December 2004, the UN’s High-Level Panel on Threats, Challenges and Change. which Kofi Annan had appointed, released a report that included, among many other proposals, a recommendation that the UN embrace the ’emerging norm” of the responsibility to protect Annan included the proposal in his own 2005 report. Very little from that document that survived the
ensuing months of debate, as emissaries from the developing world pulled in one direction, and those of the West – above all, John Bolton, the refusenik who then served as US ambassador to the UN -pulled in another. But the responsibility to protect, remarkably, emerged nearly intact. In September of that year, the heads of states gathered at the General Assembly for the so-called World Summit celebrating the UN’s 60th anniversary accepted language stipulating that “each individual State has the responsibility to protect its populations from genocide, war crimes,
ethnic cleansing and crimes against humanity.” and that states are “prepared to take collective action, in a timely and decisive manner should peaceful meant be Inadequate and states manifestly fair to protect their own populations.
Why so controversial a doctrine made it through so formidable a gauntlet is not quite clear. In remarks to the General Assembly prior to the World Summit, quite a few ambassadors from the developing world stated frankly that their governments did not actually accept the responsibility to protect or at least its coercive aspects. These included not only perennial spoilers like Cuba, Venezuela. Iran and Syria. but also Pakistan, Egypt Brazil, El Salvador, Indonesia, Malaysia and India. Many of these same countries were even then blocking efforts to fortify the UN’s toothless Human Rights Commission. on the grounds that a human rights body that could single out Individual countries for censure constituted an infringement of sovereignty. Certainly the support of countries victimized by atrocities, like Rwanda. and of Third word democracies like South Africa or Chile, helped the responsibility to protect doctrine pair attitude. But the principal may ultimately have won approval, as many of the proposed (cleans in the human rights body did not, because states viewed the former as a harmless concession to Western preoccupations, destined to remain a mere exhortation.
Indeed , by the time the world summit Outcome document was signed.
sovereignty had long since become a neuralgic issue in Security Council deliberations. And here a good deal of the blame accrues to the Bush administration. which from its first months insisted that It would not be constrained by international law, and would not accept the legitimacy of international pacts Perhaps the administration’s single most provocative decision was, first to very loudly and publicly withdraw from the International Criminal Court, and then to demand that …….