An end to human wrongs?

Crimes against Humanity

July 30, 1999

International human rights have moved forward, says Tim Garden.

The bombing of Kosovo and the arrest of General Pinochet may turn out to be the defining events for a different international scene in the 21st century. Or they may turn out to be interesting footnotes to a future thesis on the concept of ethical foreign policy. Geoffrey Robertson QC, the international human rights lawyer, has no doubt that, after centuries of injustice, we are at the dawn of a new age. He feels no need to agonise over the implications of humanitarian intervention, and rejoices in the end of the protection afforded by the traditional international respect for sovereignty. Crimes against Humanity was originally planned for publication a year ago to celebrate the decision taken by 120 nations in Rome to set up the International Criminal Court. This tentative move towards making despots accountable for their crimes was certainly an important step forward for the international community, but since then Pinochet and Kosovo have translated the theory into practice. That Robertson has managed to weave these new issues seamlessly into the text of his volume is impressive.

The book takes a sweeping historical look at the development of the concept of human rights. Robertson acknowledges the legacy of religion and ancient civilisations. Both Greece and Rome gave rights to their citizens, and religious doctrines held certain behaviour universally wrong. Magna Carta enacted rights to a fair hearing more than 700 years before the European Convention on Human Rights was to do the same. In the 17th century, many of our modern concepts of rights were formulated in England with the Bill of Rights. Revolutions, which, at least in theory, were about the rights of the people, spread through Europe and America. The abolition of slavery, which started in England in 1807 and was completed in Oman in 1970, is an acknowledgement by all nations of a universal human right to freedom. Yet in this and many other examples of the evolution of human rights, it was up to each sovereign state to provide the necessary law and to police the rights of its citizens.

At the close of the 19th century, there was evidence that the idea of intervention operations for humanitarian reasons was beginning to take root. The Royal Navy had been liberating slaves from ships around the African coast for some time. Britain had provided forces to protect an ethnic minority of Christians from killing by the Turks in Bulgaria. America justified its declaration of war on Spain in 1898 on the grounds of the oppressive rule in Cuba that "shocked the moral sense of the people of the United States". And all of this was without CNN. Roosevelt's 1904 State of the Union message made it clear that the US believed intervention for humanitarian reasons was justifiable when oppression was on a vast scale.

The horrors of the Great War may have had a restraining effect on looking for new reasons for military action. Certainly, neither the Versailles Peace Conference nor the League of Nations Charter was formulated with the promotion of human rights as a key factor. The prevention of another war was seen as the most important aim and that reinforced the idea of the importance of the sovereignty of states. Wars happened when one state interfered in the internal affairs of another. Robertson credits H. G. Wells as the real father of modern thinking on human rights. In 1939, Wells had advocated the adoption of a declaration of rights that would be "the fundamental law for mankind throughout the world". With a small group of leading English socialists, he constructed a simple list of principles that recognised that all people were entitled to a set of common rights. By 1942, his principles had become such a part of the democratic thinking that the Allied powers announced the preservation of human rights as a war aim. The growing realisation of the terrible outrages against the Jewish people by the Nazis ensured that human rights remained on the agenda after the war.

Two events changed the approach to international law. The first was the setting up of war crimes tribunals in Germany and in Japan. Churchill had favoured the summary execution of the Nazi leaders, but Truman, Stalin and de Gaulle wanted an international tribunal to judge them. Robertson argues that this was a key moment in history. While Nuremberg was a show trial, it brought home to the world the true horrors of the crimes against humanity that were planned and authorised by the Nazi leadership. The passion of the reports from those who first saw the concentration camps (Richard Dimbleby's graphic report from Belsen is quoted on the title pages) was backed up by the volumes of evidence the formal tribunals needed. In this way, the prosecution of individuals for crimes against humanity, even when working for the state, became a part of international law. While the book covers the conduct and implications of Nuremberg in great detail, it is strangely reticent on the parallel trials in Tokyo.

The second key event after the war was the setting up of the United Nations. Its charter has been the source of authority for defining international standards of behaviour by states. Human rights are given priority in the charter. Yet, as with most international agreements, it contains caveats and constraints to satisfy all the parties. It was written in the light of the horrific experiences in Nazi Germany, but some of the Allies still had colonial considerations. The charter recognised the sovereignty of states by discounting intervention in essentially domestic matters of any state. But this prohibition could be over-ridden if the Security Council agreed that an armed intervention were needed to restore international peace and security or in the case of self-defence. While this was a fairly weak approach to enforcement of human rights, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights in 1948.

Robertson describes the years of the cold war that followed as inglorious. Human rights abuse was widely ignored as the nuclear stand-off between the two superpowers took precedence. He perhaps unfairly blames the diplomats for lack of progress over the years. While diplomats may have put sovereignty issues and their aversion to international confrontation ahead of human rights issues, they were doing this at the behest of their national political leaderships. Yet despite the repressive regimes in Latin America, Asia and in the Communist states, there was progress in the second half of the century. The European Convention on Human Rights built up an increasing power after an unsteady beginning in 1950. The European Court is able to provide an appeal mechanism for individuals whose human rights have been abused by their governments. While there are still improvements to be made to this system, it serves as an excellent model for other regions of the world.

There are now a number of indications that the international community is ready to move forward to a more comprehensive legal system for the promotion of human rights and the prosecution of those who have conducted crimes against humanity. There is no lack of conventions against specific abuses. In the case of war, there is detailed guidance on permissible types of weapons, treatment of prisoners, protection of civilians in general and children in particular. Genocide, torture and slavery are banned worldwide. What has been lacking has been any political consensus on how to enforce the law.

The last decade has seen international attitudes change markedly. The series of atrocities stemming from the break-up of Yugoslavia has shocked the world. The international criminal tribunal for the Former Yugoslavia was established by the UN Security Council in 1993 as a result of the horrific ethnic cleansing carried out by the Bosnian Serbs. It was nearly 50 years since the precedent had been set at Nuremberg. Progress has been slow but steady, with some 25 out of 75 indicted war criminals in custody in the Hague so far. Experience with this tribunal did much to accelerate the process of setting up an international criminal court, which was agreed in Rome by 120 nations in 1998. This court is intended to have a global remit and its jurisdiction covers genocide, crimes against humanity, war crimes and the crime of aggression. But a number of states remained concerned at the implications for their sovereignty. In particular, the US has made it clear that it does not intend to let its citizens be tried by such an international court.

Despite the difficulties in setting up a court with universal jurisdiction, two events happened over the past year that give hope. The surprising arrest of General Pinochet on one of his regular visits to Britain signalled a major change in human rights accountability. Robertson recounts the story in loving detail, and manages to get in verbal strikes at a number of his enemies. But even without his triumphal prose, he is right that "the Pinochet case became the most important test for international law since Nuremberg itself". Whatever the final outcome, heads of state can no longer assume that they can be granted amnesty in perpetuity for their crimes against humanity. The second crucial event was the Nato operation against Kosovo. Unable to get clear UN backing for armed intervention to prevent ethnic cleansing, the 19 democratic nations of Nato took action. While international lawyers can construct appropriate rationales to cover the operation, there is no doubt it marked a new departure. If the problems of sovereignty stopped the Security Council from acting according its own declaration on human rights, then Nato was prepared to do it.

Crimes against Humanity is a fascinating book for anyone in the field of international relations. It is not written with the emotional detachment of the lawyer but with passion, anger and occasional self-satisfaction. It gives no space to those who would argue that we may come to regret the move towards greater intervention in the internal affairs of states. There are many potential ethnic flashpoints worldwide, and not much prospect of Nato enforcing a solution on them all. While democracies are on the increase, we still need to deal with countries without democracy. Criminalising their leadership may make it more difficult for them to change. These difficult issues will not disappear, but Robertson makes a convincing case for the need for much more effort internationally.

Air Marshal Sir Timothy Garden is a trustee of the World Humanity Action Trust.

Crimes against Humanity: The Struggle for Global Justice

Author - Geoffrey Robertson
ISBN - 0 713 99197 6
Publisher - Penguin
Price - £20.00
Pages - 473

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