Human Rights Brief
A Legal Resource for the International Human Rights CommunitySpring 1995
POINT/COUNTERPOINT
by Juan Méndez
John R. Bolton
Point/Counterpoint is a regular feature of The Human Rights Brief. The purpose of the section is to encourage meaningful, intellectual discussion on contemporary issues in human rights and humanitarian law through the presentation of two diverse, though not necessarily opposing, opinions on the subject at hand. Commentaries for the Point/Counterpoint section are generally solicited by The Brief, however, the Board of Editors welcomes all submissions, comments, and suggestions. The newsletter does not facilitate the exchange of the authors’ compositions prior to publication. The views expressed in the Point/Counterpoint section are those of the authors and do not necessarily reflect those of The Human Rights Brief, the Center for Human Rights and Humanitarian Law, or their Directors or staff.
The current attempt by the Republic of Chechnya to break away from Russia, and the strife as it initially arose in the former Yugoslavia, are two of the most glaring examples of the post-Cold War rise in intrastate ethnic conflicts. Despite the persistent increase in such disputes, the international community does not appear to have developed a coordinated or consistent policy in how to respond to the difficulties created by these kinds of conflicts. For example, the fighting in both Yugoslavia and Chechnya have been characterized by violations of human rights and humanitarian law, and yet the international community has taken very different approaches to each conflict, intervening extensively in the former controversy through embargoes and military force, and taking a largely hands-off approach to the latter conflict as an "internal Russian affair."
This apparent inconsistency in approach by the international community, and the controversial results of the United Nations' intervention in the former Yugoslavia and Somalia, provide an effective context in which to address the question of what role can and should the international community play in intrastate ethnic conflicts.
Point: Peace, Human Rights and Accountability -- The Need for a New Doctrine on International Intervention
Juan Méndez is General Counsel to Human Rights Watch and former Executive Director
of Americas Watch. Since 1982, Méndez has participated in numerous on-site missions to
investigate violations of international humanitarian law, and has authored many of the resulting
reports as well as articles on various human rights issues.
Counterpoint: Intrastate Ethnic Conflicts and American Interests
John Bolton is the President of the National Policy Forum in Washington, D.C. Bolton was
formerly Assistant Secretary of State for International Organization Affairs in the Bush
Administration, where he formulated, articulated and implemented U.S. policy within the UN
system and directed U.S. policy during the Persian Gulf War.
Peace, Human Rights and Accountability - The Need for a New Doctrine on International Intervention
by Juan E. Méndez
In the post-Cold War, the international community has been forced to deal with complex emergencies in multiple trouble spots. Each crisis has presented different challenges and, by any measure, the United Nations' track record is mixed at best. Yet one particular failure, in Somalia, seems to dominate the thinking. There are certainly lessons to be learned from the failed intervention in Somalia, but the world seems to be learning the wrong lessons. Because of Somalia, the United Nations bureaucracy now insists that outside assistance will be provided only if parties to a conflict expressly consent to it. European skeptics have found new currency to their views that conflict in far-off lands is "ancestral" and "centuries-old" and that it is a naive mistake to attempt even to address their most immediate present consequences. In the United States, neo-isolationism feeds on the example of Somalia to press for a foreign policy that yearns for the ability to exercise power without accepting the responsibilities of leadership. The result is a dangerous tendency by the world community to shirk its duty to prevent and punish the crime of genocide (as in Rwanda), to look the other way while grave breaches of the laws of war are committed (as in Chechnya) or to acquiesce in the impunity of crimes against humanity (as in the promotion of shameless amnesties as a quick fix in Haiti).
There have certainly been serious mistakes in the way the international community has responded to crises in the last few years. But there has also been a reluctance to learn from some moderate successes. In El Salvador, in Haiti and in Cambodia, for example, the efforts of the United Nations have succeeded not only in putting an end to conflict, precarious as that end might seem even now, but also in establishing the bases for democratic institutions that offer the best hope for peaceful resolution of conflict in future years. In all three examples, the UN incorporated human rights principles during the negotiations and later found creative mechanisms for verification on the ground. A similar approach is showing some promise in Guatemala as this essay is being written. Typically, civilian monitors are sent to verify compliance by all parties with carefully crafted accords that apply universal human rights standards to the realities on the ground. With respect to egregious abuses of the most recent past, the UN assists in the process of reconciliation by supporting "truth commissions" or similar forms of coming to grips with the demands of truth and justice.
In spite of those successes, the UN has refused to develop a "doctrine" by which human rights and accountability would become an essential part of any peace process. In Somalia, human rights and accountability were conspicuously left out of the UN-brokered negotiations between the many warring factions. There was a token and completely meaningless assignment of responsibility for human rights to one official in the extensive field operation, and there was never any attempt to monitor the behavior of the forces brought in under the UN flag for compliance with international humanitarian law. Human rights verification and insistence on accountability have been similarly left out by the UN in Angola.
In his most recent policy statement about peace-keeping, Secretary General Boutros Boutros-Ghali did not include human rights or accountability as one of the conditions of UN involvement in disputes. He did, however, propose certain pre-requisites for such future ventures, mostly drawn from a sober assessment of the recent experiences. One significant condition demanded by the Secretary General is that the parties to the conflict must demonstrate a commitment to seek honorable solutions by expressly consenting to a UN role. It is easy to see that the lack of such consent was a decisive factor in Somalia and in Angola, at least at the time when Jonas Savimbi, leader of the National Union for the Total Independence of Angola, ignored the results of UN-monitored elections and resumed the war. Of course, consent must be sought and commitments demanded whenever possible. But erecting this as a condition amounts to a confession of impotence in those situations in which it is unrealistic to expect that consent, at least in the early stages of a crisis. Does it mean that the international community will let vulnerable populations die in man-made humanitarian catastrophes or in mass killings until one or the other party decides that there is no longer a political or military advantage to behaving in contempt for fundamental rights? If that is the case, this "doctrine" rewards uncivilized and ruthless conduct. By dampening unrealistic expectations, the UN in fact may be unwillingly contributing to the generation and expansion of future complex emergencies.
The UN also errs when it tries to exercise its traditional peace-keeping roles in situations where there are massive violations of human rights. In traditional peace-keeping, it is legitimate to expect both parties to a conflict to agree to the presence of a neutral force to ensure compliance with temporary arrangements. By definition, therefore, the peace-keepers must be scrupulously neutral to the conflict. This neutrality, however, is a hindrance when what is needed is the protection of innocent and helpless civilians who are at the mercy of a government or a force bent on the commission of crimes against humanity. In Rwanda, for example, the conflict between the former government and the Rwandan Patriotic Front was no more than a distant backdrop to the real problem: genocide committed by pro-government forces against the Tutsi minority. Given the clear obligation in international law to prevent genocide, the international community should and could have found ways to save Tutsi lives while engaged in the peacekeeping. Instead, it found a pretext for inaction in the need to remain neutral in the internal conflict.
The theory of "age-old rivalries" is likewise also based on important grains of truth. It makes no sense to try to correct situations without an attempt to understand them. But too frequently these explanations are just as simplistic and superficial as the attitudes they rail against. Significantly, they fail to take into account that age-old rivalries and distrust are usually manipulated by politicians and demagogues for short-term gain to fuel the fires of conflict by exploiting ignorance and fear of the future among communities. Even if age-old rivalries are hard to solve in the short term, there is certainly something that the international community can and should do to prevent their descent into genocide, crimes against humanity, or war crimes. This mind set about age-old conflict is what prevails so far in the international community's response to the former Yugoslavia, and it explains to a large extent the failure to obtain results despite extensive military, humanitarian, and diplomatic intervention. Not only has it been impossible to prevent ethnic cleansing, but the significant effort to secure accountability embodied in the creation of a war crimes tribunal has been marred by foot-dragging and reluctance in providing it with adequate funding. Those early problems seem to have been overcome, but the fate of the tribunal is still threatened by attempts to throw it in as a bargaining chip in exchange for peace. An amnesty that would immunize the killers from prosecution is recurrently mentioned as a possible carrot for the parties to accept a peace plan. It is not only that this "peace" that does not deserve its name would be a shameful resolution to the conflict; more immediately, it encourages continued fighting and undermines the authority and credibility of a tribunal created with the lofty goal of standing up to genocide in our time.
The current winds of neo-isolationism in the United States go far beyond the lessons of Somalia. In fact, they attempt to prevent U.S. participation even in those instances when the venture has been remarkably successful and risk-free, as in Haiti. In this sense, they betray a lack of interest or concern for the spread of democracy, as if poor and underdeveloped nations were not entitled to the benefits of civil and political freedom. This way of thinking about U.S. responsibilities abroad would have a healthy effect on the debate if it contributed a sense of the limitations of what armed forces can do in complex emergencies and the dangers of excessive reliance on military solutions. Unfortunately, these voices rarely scrutinize the role the military may have played in the mistakes made on the ground and instead blame all of the problems on misguided political decisions.
The problem with this tendency to withdraw from far-off and little understood problems is that it threatens to bring down not only the peace-keeping effort but all other forms of "civilian" field operations that the international community can conduct. Lack of political and monetary support from the United States can doom civilian verification missions to monitor human rights abuses, initiatives to train and rebuild administration of justice programs so that failed states can begin to restore confidence in the institutions, truth commissions and similar efforts to show victims of massive abuse that their plight is not ignored, and similar programs designed to embark on a genuine process of reconciliation and reconstruction. If the United States turns its back on these moderately priced but potentially highly successful ventures, even the fate of path-breaking efforts to establish a world-wide rule of law will suffer. The same pressures to disengage from conflict situations would be at work to undermine the two tribunals that have so far been created to deal with international crimes (former Yugoslavia and Rwanda). Their failure would breed more disaffection and hate between communities and encourage the killers to repeat their crimes, safe in the knowledge that there is no price to pay for them.
The world should certainly exercise restraint in the temptation to use military might to deal with complex emergencies. Yet, when the peace and security of mankind are threatened, there is clear international law that legitimizes the use of force. Similarly, the Genocide Convention makes it clear that the duty of the international community -- and individually of each State party to the Convention -- is to prevent and punish this crime. Therefore, at least when it comes to genocide, the international community must be ready to use force as a last resort to protect the lives of vulnerable and unprotected victims. This option must remain in the arsenal of the world leadership, to be used judiciously but firmly if need be. It is even more important for the United Nations and for countries that play a leadership role in world affairs to create and display an array of measures short of military intervention so that the latter is truly a measure of last resort.
Intrastate Ethnic Conflicts and American Interests
by John R. Bolton
It is fashionable in academic settings and Washington salons to discuss the correction of international human rights abuses as a cost-free exercise, both human and financial, propelled by higher moral imperatives that brook no toleration of practical obstacles. Policy objections based upon non-human rights considerations are frequently dismissed from discussion contemptuously as unworthy of serious treatment. Unfortunately, this approach to human rights, especially in the context of the United States' international involvement, obscures far more than it clarifies.
Ethnic and religious conflicts within states represent the most likely sources of violence, death and gross violations of human rights around the world. While conflicts between states are far from reaching the "end of history," as recent clashes between Ecuador and Peru, followed by border skirmishes between Venezuela and Columbia, compellingly demonstrate, they will likely be eclipsed in severity and frequency by intrastate warfare. The breakup of former ideological monoliths, themselves some of the worst abusers of human rights in history, has only made these ethnic and religious conflicts more likely by removing the totalitarian restraints that previously held them in check. The lack of congruence between international boundaries and ethnic population concentrations in many parts of the world similarly provides another source of tensions and potential conflict.
In country after country, such as the former Soviet Union, ex-Yugoslavia, Somalia and Haiti, ethnic and religious hostility, anarchy and class warfare threaten the hold of fragile governments. Both in the run-up to, during, and in the aftermath of military hostilities associated with such divisions, the prospects for human rights abuses are obviously substantial, as are the difficulties in attempting to deal with them. Accordingly, while it may be appropriate to ask what the international response to such intrastate conflicts should be, it is also important to understand the limitations and costs associated with intervening to try to resolve them, or even to bring them to a cease fire. Moreover, it should not be surprising if the responses to such questions dictate differing responses in different conflicts.
Perhaps the most often-suggested vehicle to address international ethnic and religious turmoil is the United Nations, through such devices as peacekeeping, or "peace enforcement," forces authorized by the Security Council, the provision of humanitarian assistance by UN specialized agencies, elements of the Red Cross movement or non-governmental organizations, war crimes tribunals, or other formulations, all of which generally involve the oversight, if not the actual, very active participation, of the Council. Although regional organizations might also be candidates for such roles, few realistic observers believe that any existing regional organizations actually have the wherewithal to accomplish anything in contexts where there is even the slightest prospect for complexity or ambiguity. Thus, any assessment of the possibility of successful international involvement in intrastate ethnic or religious conflicts must turn on the suitability and efficacy of a role for the Security Council, albeit frequently operating in conjunction with other elements of the UN system, such as the UN High Commissioner for Refugees, or the UN Human Rights Commission.
Recent developments in former Yugoslavia and Somalia, and fears of a repetition of such problems in Haiti and elsewhere, have suggested to many Americans that such involvement is not generally in the best national interests of the United States, particularly if becoming involved implies a direct commitment of U.S. military forces as part of an international peacekeeping force.
Republican-sponsored bills in Congress, now under consideration, would substantially reorder U.S. participation in UN peacekeeping operations to take account of these lessons. Not surprisingly, these proposals have drawn fire from both self-described human rights watchers and UN enthusiasts, with some critics implying that contemporary Republicans are not even being true to their Cold War ideals, and that they need lessons in internationalism. These criticisms are misplaced and potentially dangerous, especially for the young Americans in uniform who might be sent off to chase academic illusions in the name of human rights.
Careful American corporate lawyers drafted the UN Charter, and specifically the important provisions governing the jurisdiction of the Security Council. Internationalists like John Foster Dulles wrote in non-utopian language about what the Council's role should be, and implicitly what it should not. Their original intent, set out in the Charter's Preamble, was "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind." To that end, they charged the Security Council with responding to threats to, or breaches of "international peace and security," the buzz words that both empower and limit the Council's mandate.
Even in the face of massive problems for the UN, its supporters now want it to intervene to restore stability and prevent gross violations of human rights where governments (one shrinks from calling them "nation-states") around the world are unable to maintain for themselves. This sort of peacekeeping role, once called "nation building" in Somalia by the Clinton Administration, is very different both from the Security Council's role under the Charter, and from UN peacekeeping between states that emerged occasionally when the Council was not grid-locked by the Cold War. To suggest otherwise is both historically inaccurate and dangerously flawed.
First, UN peacekeeping did nothing to keep regional conflicts out of the broader U.S.-Soviet conflict. Indeed, the very examples of UN successes most often cited, like Namibia, Cambodia, El Salvador, and Mozambique, were precisely the scenes of Cold War surrogate conflicts. Peaceful resolutions with UN intervention there became possible only as the Cold War receded, not the other way around. Moreover, all of these examples were principally U.S. diplomatic efforts implemented by the UN. Breathtakingly, the UN's supporters ignore the most profound and dangerous regional standoff of them all - for forty long years, the division of Europe. There, NATO prevailed, the Warsaw Pact collapsed, and the UN was missing in action. Thus, in the present context, the UN's record hardly makes it a likely candidate for a successful human rights champion.
Second, the interventionist doctrine ignores the carefully circumscribed limits of Security Council authority: international peace and security. Not in Somalia, not in Cambodia and not in Haiti did such a threat really exist. At best, former Yugoslavia is a mixed case, involving the breaking apart of one country in civil war, and the creation of several nascent new states. Even there, the long-feared outbreak of warfare throughout the Balkans (and the threat of what? World War III?) has yet to occur, belying any substantial international impact. Human rights activists sometimes concede that many of their preferred venues for UN involvement concern situations of "human" security that cause intense emotional reactions in distant capitals. Yet, they do not propose amending the Charter to encompass their expansive views, but simply ignore what the Framers drafted.
The UN's founders, moreover, did not set out to rid the world of tragedy. That goal, humane though it may be, requires a higher power not present in the United Nations. This is not a cynical withdrawal from human rights concerns, but a hard-headed recognition that the UN itself is an organization of member governments.
Third, UN involvement in intrastate disputes almost always risks a lack of consent among the warring parties, the sine qua non of successful peacekeeping among states. When states are in conflict, there are typically identifiable governments, usually located in capitals governing territories with existing or former internationally accepted boundaries, with definitive command-and-control authority over their respective military establishments. In such circumstances, exemplified by the Israeli-Syrian truce along the Golan Heights, justifiably cited as a UN success story by diverse authorities who cannot agree on much else, a neutral UN-authorized peacekeeping force can often play a useful role.
By contrast, when the parties have neither stable governments nor territories, when their capitals are either portable or war zones, and where military commanders may either be the real governors, or independent, or both, it is no wonder that informed consent is hard to find. The absence of consent, as in the former Yugoslavia, makes it harder both to carry out the humanitarian mission assigned to the UN, and to preserve the kind of objectivity necessary for any kind of human rights oversight.
Fourth, there is an important and too-often-overlooked distinction between the kind of peacekeeping the UN has successfully achieved, such as in the Golan Heights, and the more muscular operations that the UN advocates apparently prefer in places like Bosnia and Somalia. UN peacekeepers have never been successfully deployed with anything like a war-fighting capability, and in many cases are only lightly or completely unarmed. The past two years have repeatedly demonstrated that peacekeepers cannot begin as peacekeepers, become peace enforcers overnight, and then switch back again without any adverse consequences to themselves or the trouble-spot in which they serve.
It is legitimate to ask whether the "international community" can play a useful role in international ethnic conflicts short of military force, whether in the form of enforced sanctions or a military presence on the ground. For example, much attention has recently been devoted to efforts to operationalize a war crimes tribunal to adjudicate allegations of human violations in former Yugoslavia. One need not condone the practices of executions, ethnic cleansing, systematic rape as a tactic in warfare, torture or any other abuses, however, to wonder if show trials will really change much of anything.
During the Gulf Crisis, the Bush Administration carefully considered whether to try Iraqi leaders in absentia for war crimes committed during the invasion and occupation of Kuwait. Substantial evidence of such war crimes existed, both from eyewitnesses and in documentary and other forms, and the jurisdiction of Kuwaiti courts could not be challenged. Kuwait courts were considered preferable to courts established by the U.S.-led coalition to avoid the allegation that non-Arabs and non-Moslems were punishing Iraqis unfairly.
Nonetheless, after considerable internal debate, the Administration concluded that trials in absentia night actually be counterproductive. First, absent any mechanism to apprehend the defendants for punishment, the entire exercise might not only be irrelevant but might also undercut the credibility of the UN's opposition to human rights abuses. Second, convicting human rights abusers could well remove whatever incentives they might have to overthrow their abusive masters and deliver the real war criminals for international prosecution. Third, there were doubts as to how impartial any trials would be perceived internationally, when the defendants were not present to conduct their own defenses.
While the Administration was not squeamish about the due process rights of war criminals, there were legitimate concerns about how the trials might play into the propaganda campaigns of those opposed to the goals of the U.S.-led coalition. As a result, both the United States and the Security Council decided only to accumulate and preserve evidence for possible use at a future date, to be determined.
Much the same could be said in the case of human rights trials in former Yugoslavia. At present, only a very limited number of those accused of gross violations of human rights have been indicted or are actually in custody and accessible to UN tribunals, almost all of them being Serbs. Preparations for similar trials in Rwanda follow the same pattern. Whatever the contemporary rhetoric, these proceedings will be a far cry from Nuremberg. What, for example, would be the international reaction if only a few of the human rights violators, and very low-level ones at that, were tried and convicted by the United Nations? What would that indicate about the seriousness of the UN effort, and the commitment of the "international community?" The likely answers to these questions are not encouraging if the aim is to conduct trials for allegations of human rights violations other than for purely "feel good" reasons.
In short, the interventionist human-rights lament is badly flawed, both conceptually and operationally. Intrastate ethnic and religious conflict is not really within the legitimate domain of the Security Council, nor could it be without an expansion of the Council's jurisdiction and resources, neither of which is either likely or desirable. UN or other international measures less than military force are also unlikely to have a profound or sustained impact, at least in the foreseeable future.
The real solution to intrastate ethnic conflict is not, and probably never can be, the imposition of peace and stability from outside the zone of conflict itself. Ultimately, within states, so long as the nation-state system survives, people have to learn to live in peace with their fellow countrymen. They cannot be taught, and ethnic tranquillity cannot be imposed from the outside, no matter how high-minded the motives of the outsiders, or how tragic the situation they are trying to alleviate. This reality may not be pretty, but it is accurate.
The proper citation for this article in the Human Rights Brief Volume 2, Number 3, beginning at page 10,11 is: 2 No. 3 Hum. Rts. Brief 10,11 (1995).
