A Setback for the Right to Commit Genocide?

Reading this piece in The Guardian will require you to suspend your disbelief that the author is crediting Kofi Annan, who was occupied with his banker in Geneva during the slaughters in Rwanda, Srebrenica, and the engineered famine in North Korea:

In the final declaration last week 191 countries, including Sudan and North Korea, went along with a restatement of international law: that the world community has the right to take military action in the case of “national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. It comes too late to help Darfur, not to mention Rwanda and Cambodia, but it is a millennial change.

Read it anyway.

Back already? There are some obvious problems with making such a lofty statement of principle:

1. What will trigger the world’s duties and the victims’ rights?
2. Will China, France, and Russia still have veto powers?
3. Won’t the process be open to crass political manipulation, ie. “Guantanamo is genocide?”
4. Who in the “world community” will do the actual enforcing?

Recognition of the principle is very nice, but there will have to be something more substantive than this to save lives. First, we have to define when these rights and duties are trigged. That probably means reworking the current U.N. definition of genocide, which does not protect political and social groups.

Second, there must be an impartial and rigorous process of finding those facts that constitute actual genocide, rather than garden-variety authoritarianism or overzealous law enforcement. It should include empirical standards to have meaning: ie., nothing less than mass killing in the thousands will qualify (no, the United Nations was never intended to stop all evil and injustice in the world). It will mean detaching the fact-finding process from U.N. voting-bloc politics, which is why statemen created independent and professional jurists, selected through a process requiring consensus by those affected. It may require a provision for the appointment of a Special Rapporteur to present facts to an international court, which probably makes many of my conservative readers wince and gives me a degree of pause. To address the U.N.’s present disunity of values, it should exclude jurists, investigators, or other officers who serve or have served under undemocratic governments–although this will undoubtedly exclude some courageous and fair-minded judges who opposed such regimes. There should also be some process by which democratic nations may vote to accept or reject the findings of the court or rapporteur.

Third, the law must account for realpolitik. Even after a finding of genocide or democide, countries will have their own reasons for declining to assist the beleagured population, and may even obstruct efforts to resist them. Witness the French and Chinese covering for Sudan, Russia covering for Serbia, and pretty much all of the above (including the United States during the early 80’s) covering for Iraq. That means that the law has to recognize that, as in the past, most genocide victims are going to be on their own, and that a world that refuses to help should at least get out of their way while they defend themselves. That will mean a recognition of their right to self-defense, which requires an amendment or reinterpretation of Article 51 of the U.N. Charter.

Fourth, the law must have consequences for governments (or non-state actors) convicted of genocide. Those convicted, and those found to assist, encourage, or harbor them, must be subject to a complete arms embargo, including use use materials, and other punitive economic sanctions. There should be real penalties for violating the sanctions, as well. The world must never repeat its mistake in Bosnia of treating aggressor and victim as moral equivalents. The arms embargo against Yugoslavia had no effect on the Serbian Army, whose parastatals were already doing a thriving business in manufacturing and exporting arms when the war began. In that case, the U.N. arms embargo had the primary effect of disarming the victims.

Finally, the law should provide for a process by which the representatives of the tribunal, the government, or the affected population may petition to have the declaration of genocide or democide either lifted outright or suspended, at which point the non-arms sanctions are also suspended for all parties to the conflict, and the arms embargo is extended to all of the belligerents.

But who am I kidding? This is the U.N. we’re talking about.