“We Syrians are human beings of this world” (Yassin al-Haj Saleh, Sept. 9, 2013)
What is the basis for states’ exercise of universal jurisdiction to adjudicate crimes against humanity? What is the source of the right and even the duty of the UN Security Council or perhaps also groups of states to use force to end genocide perpetrated by a foreign regime against its own people? Given the lack of explicit state consent to such powers, the answer must be that these obligations stem from an underlying concept of trusteeship toward humanity; that all states are subject to certain pre-state norms, which, to use David Luban’s words, were not
“created by any political community at all, but rather by universal human need. Their normative force does not arise from the fact that they have been positivized in the statutes of the international tribunals and a few domestic legal systems, nor from the tepid commitment of states to enforce them. They represent every human being’s rightful demand that the political rough-and-tumble never again include the uttermost barbarism that crimes against humanity represent. Anyone who transgresses these laws is henceforth an enemy of all humans.”
These pre-political norms not only prohibit governments from perpetrating such crimes, but also impose on them the duty to do what they can to prevent and punish others who commit such crimes.
Indeed, when the Israeli Supreme Court justified Israel’s right to adjudicate the Eichmann case, it invoked the concept of trusteeship:
“the state which prosecutes and punishes a person for that offence acts solely as the organ and agent of the international community, and metes out punishment to the offender for his breach of the prohibition imposed by the law of nations.”
The court cited Morris Greenspan as authority for that vision (although Greenspan was writing on war crimes):
“Since each sovereign power stands in the position of a guardian of international law, and is equally interested in upholding it, any state has the legal right to try war crimes, even though the crimes have been committed against the nationals of another power and in a conflict to which that state is not a party.”
The same idea is reflected in the international law concepts of jus cogens and erga omnes. The doctrine of jus cogens stipulates that sovereign authority is not unlimited and states operate under certain pre-political constraints. The erga omnes concept provides that the violation of certain obligations harms all humanity. These are, according to the Institut de Droit international, “obligation[s] under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of th[ose] obligation[s] enables all States to take action.” In the words of Heffter, the influential German scholar of the nineteenth century, states reacting to such violations do so as the “supreme and multiple organs of humanity.”
This trusteeship role entails not only a right to act but also a duty to act. When Grotius discusses the conditions under which “a just cause” arises “for undertaking war on behalf of the subjects of another ruler, in order to protect them from wrong at his hands,” he invokes the metaphor of “a guardian, or some other person, [who] goes to law on behalf of a pupil, who is personally incapable of legal action.” (see in this context, Professor Evan Criddle’s recent talk). It is clear that Grotius sees this guardianship as the source of a duty at least to consider action, not merely a permission to act. This duty is grounded in Grotius’s more general vision of states having solidarity obligations toward others, what he refers to as “the mutual tie of kinship among men, which of itself affords sufficient ground for rendering assistance,” even by force, as long as “his own life and interests” are sufficiently secured.
In the same vein, the Israeli District Court in the Eichmann case invoked Grotius’s discussion on the punishment of kings who “violated in extreme form the law of nature or the law of nations” as implying a “moral duty” to do so:
“It is therefore the moral duty of every sovereign state … to enforce the natural right to punish, possessed by the victims of the crime whoever they may be, against [such] criminals. By these pronouncements the father of international law laid the foundations for the future definition of the ‘crime against humanity’ as a ‘crime under the law of nations’ and to universal jurisdiction over such crimes.”
By comparison, the more recent reincarnation of this concept under the notion of the “responsibility to protect” is quite lean in its theoretical underpinnings and in its reliance on the UN as the supreme organ of humanity. According to the High-level Panel on Threats, Challenges and Change (2004), the UN Charter is both the source of the responsibility to protect and the vehicle for implementing that responsibility. In its view, “[i]n signing the Charter of the United Nations, States not only benefit from the privileges of sovereignty but also accept its responsibilities.” These responsibilities, the Panel continues, entail “the principles of collective security [that] mean that some portion of those responsibilities should be taken up by the international community, acting in accordance with the Charter of the United Nations and the Universal Declaration of Human Rights, to help build the necessary capacity or supply the necessary protection, as the case may be.” (Id, at para. 29).
In a legal system that recognizes certain pre-political obligations that apply erga omnes, it is obvious that the UN Charter itself and its organs, including of course the Permanent Five, are subject to the basic norms of humanity, reflected in certain jus cogens obligations that yield certain rights and even duties upon states to ensure other states’ compliance with them. While it is agreed that the consequences of the breach of jus cogens norms do not necessarily enjoy the same protected status as the norms themselves (e.g., the rules concerning state immunity and the immunity of state officials), it remains necessary to examine whether the UN Charter restricts unilateral action in response to an ongoing genocide. It is equally obvious that action (or a decision not to act) by the UN does not necessarily relieve individual states of their right and duty to consider unilateral action where necessary. These two points seem to have been acknowledged by the ICJ in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (2007). According to the court:
“Even if and when [the UN] organs have been called upon [to respond to an ongoing genocide], this does not mean that the States parties to the [Genocide] Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs.” (at 427)
This analysis, which embeds the UN Charter, its organs, and its members in a broader framework that limits states’ discretion and authorizes and even mandates the protection of the individuals against their governments, should inform the discussion about the responsibility of the individual members of the UN Security Council when they contemplate collective responses by the Council, especially with respect to the use of the veto power by the P5.
Moreover, this analysis sheds light on the proper interpretation of the “inherent right of individual or collective self-defence” that states continue to have after joining the UN, according to Article 51 of the Charter: is it possible to maintain that the “self” in “self-defence” is humanity which is being attacked by “hostis humani generis,” the enemies of humanity? Is it possible to suggest that “collective self-defense” may be invoked on behalf of a people who are clearly oppressed by an illegitimate and unrepresentative regime?
Obviously, recognizing such unilateral powers – in adjudication and, even more problematic, in using force – is fraught with problems of abuse and misuse, and many additional conditions should be met before an action can be considered lawful. But this is true also for other legal doctrines that allow intervention. In fact, as several authors have noted, in all recent cases that can be regarded as humanitarian interventions, the intervening states rarely cited the humanitarian crises as an independent justifications for their intervention, and instead relied on the traditional arguments of self-defense or response to an invitation. And while much more refinement is needed to circumscribe these powers and ensure that they serve their purpose, the potential for abuse should not necessarily halt this search for lawful responses to extreme situations. As Grotius says with respect to humanitarian intervention, a “right does not necessarily lose its nature from being in the hands of wicked men. The sea still continues a channel of lawful intercourse, though sometimes navigated by pirates, and swords are still instruments of defence, though sometimes wielded by robbers or assassins.” The possibility of abuse should not become an excuse for evading the responsibility to protect others by exercising universal jurisdiction and even, in extreme circumstances and under strict conditions, by military intervention.