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The Canberra Times (Australia)
Monday, October 15, 2007

The violent crackdown against the mass protests led by Buddhist monks in Burma is the latest, but surely not the last, call on our conscience without borders. About 100 years ago, an accepted attribute of sovereignty was the right of states to meet by force internal challenges to their authority and external threats to their security.

The two world wars brought home the need to confront armed aggressors and warmongers. The Holocaust awakened us to the enormity of the evil of internal atrocities. The progressive internationalisation of the human conscience in the last century found expression in the parallel growth and expansion of human rights and international humanitarian law. Both converge in the protection of civilians and punishment of perpetrators against the backdrop of government-instigated atrocity crimes such as genocide, ethnic cleansing and large-scale killings.

Protect the monks and punish the junta in Burma, and protect the Darfuris and punish their tormentors in Sudan, and so on. On both counts, progress to date has been more rhetorical than operational.

Revulsion at the murder of large numbers of civilians in atrocities in many parts of the world has led to a softening of public and governmental support for the norms and institutions that shield the perpetrators of atrocity crimes from international accountability. The failure to act amounts to the best lacking the courage of their conviction while the worst engage in mass murder with passionate intensity. "Mobilising political will" is a more prosaic way of saying that the best need to rediscover and act on their convictions. Darfur is the current poster child for callous international indifference, joining Srebrenica and Rwanda as the defining icons of the 1990s.

As these examples show, changes in the nature of armed conflict have put civilians on the front line of conflict-related casualties, from about 25 per cent during World War I to about 65 per cent in World War II and up to 90 per cent today. In the meantime, globalisation has shrunk distances, brought images of human suffering into our daily lives in graphic detail and expanded our capacity to respond meaningfully, thereby increasing the calls to do so. Burma in 2007 was vastly different from Burma in 1988 on this count.

Two of the most significant normative advances since 1945 are the establishment of the International Criminal Court in 1998 and the United Nation's adoption of the responsibility to protect in 2005. Both agendas encroach substantially on national sovereignty, the first with respect to the norm of non-intervention and the second with respect to sovereign impunity even of heads of state.

A criminal court with universal jurisdiction has been the missing link in the system of international criminal justice for some time. The ICC will enable an escape from the tyranny of the episodic nature of ad hoc tribunals and be a cost-effective alternative with respect to time, money and energy.

The prosecution, conviction and punishment of perpetrators helps to bring closure to victims of past atrocities, on the one hand, while also acting as a deterrent to wannabe mass killers and so preventing atrocities in the future.

Both with protection and prosecution, the default responsibility remains with states. Only if and when they are unable or unwilling does the community of states have the duty to step in with international protection and prosecution.

But who is "the international community"? The UN Security Council is the only international law-enforcement body but faces serious leakage of representational legitimacy with each passing year. How, given their own domestic records, can Russia and China as two permanent members authorise intervention against the Burmese junta? The moral authority of the United States, a third permanent member and once the champion-in-chief of universal human rights, is also compromised in the aftermath of serious weakening of international humanitarian law, retrenchments from human-rights practices and outsourcing of torture. And of course the US has waged a campaign of active opposition to the ICC, which doesn't exactly help to restore its moral authority. The fixation with the misdirected "war on terror" has taken the US far from its core ideals and handed political victory to the jihadists, at least to date.

The alternative of non-UN authorised interventions is equally flawed. The rest of the world is not going to accept that the US, even in concert with a coalition of the willing, has the right to define the thresholds of acceptable and intolerable behaviour by everyone else. It is fallacious and wrong to insist that the rest need a permission slip from the US and the West on what force they may use internally, but Westerners need no permission slip from the UN for the use of force internationally.

The solution to both dilemmas is to go back to the rule of law which tames the use of force both internally and internationally. And that means codifying the responsibility to protect, acting on it through agreed procedures and institutions, buying into the ICC, and then having the moral force, legal authority, material capacity and courage of conviction to topple the tyrants of the world, from Afghanistan (under Taliban rule) and Burma to Darfur and Zimbabwe, and put them on trial at The Hague.


About the Author

Ramesh Thakur, former CIGI Distinguished Fellow

The opinions expressed in this article/comments are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors and/or International Board of Governors.