The following article is based on a talk the author, who served as senior vice rector of the United Nations University, gave to Diet members in March before leaving Tokyo.
In an echo of the famous lines from "The Second Coming" by William Butler Yeats, the U.N.-centered multilateral system of global governance is in danger of falling apart. In that case, the problem of international anarchy will intensify. Yet in part the system is starting to unravel because of the spread of anarchy within the sovereign jurisdiction of member states, some of whom have abused sovereignty as a license to kill with impunity. Some others lack the essential attributes of sovereignty that would enable them to protect the lives and safety of their citizens against a range of armed predatory groups.
Revulsion at the murder of large numbers of civilians in a range of atrocity crimes (crimes against humanity, large-scale killings, ethnic cleansing, and genocide)--the drowning of the ceremony of innocence--has led to a softening of public and governmental support for the norms and institutions that shield the perpetrators of atrocity crimes from international criminal accountability. The failure to act can indeed be interpreted as the best lacking the courage of their conviction while the worst engage in mass murder with passionate intensity. "Mobilizing 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.
World War II gave birth to the United Nations Charter and the Nuremberg Charter. The first was forward-looking, aiming to ensure peace and security, economic cooperation and respect for human rights. The second was backward looking, aiming to punish those who started the war and committed horrific crimes against humanity. The Nuremberg and Tokyo military tribunals were instances of victors' justice. Yet by historical standards, both tribunals were remarkable for giving defeated leaders the opportunity to defend their actions in a court of law instead of being dispatched for summary execution.
Two of the most significant normative advances since 1945 are the establishment of the International Criminal Court in 1998 and the United Nations' adoption of the responsibility to protect norm in 2005. Discussions of the protection of civilians and the prosecution of perpetrators have hitherto proceeded along separate lines. In fact, they are two sides of the same coin.
The backdrop to both is the profound changes in the world since 1945, including in the changing nature of armed conflict that has put civilians on the frontline of conflict-related casualties; the rise of a powerful human rights movement and the parallel growth of international humanitarian law, leading to the emergence of a humanitarian community dedicated to championing the cause of civilian protection; the emergence of a robust civil society that is transnational rather than sovereignty-bound; and globalization, which (1) has shrunk distances; brought images of human suffering into our living rooms and on our breakfast tables in graphic detail and real time while simultaneously expanding our capacity to respond meaningfully, thereby increasing the calls to do so; and (2) made total state control of border crossings by people, goods, finance, information, disease, drugs and so on physically impossible, thereby severely curtailing the exercise of sovereignty in practice.
The need to help and protect civilians at risk of death and displacement from armed conflict is now paramount. Diplomats, international organizations and nongovernmental organizations alike will be judged on how well they discharge or dishonor their international responsibility to protect.
The way to apprehend and punish the perpetrators of conscience-shocking crimes on a mass scale is through an international legal framework that establishes the notion of "universal jurisdiction," where jurisdiction depends not on the place where they are committed, but on the nature of the crime itself. If they are truly "crimes against humanity," they can properly be prosecuted before the courts of any country. The fates of Augusto Pinochet, Slobodan Milosevic and Charles Taylor are but some of several dramatic twists and turns in the last few years in the search for universal justice.
The U.N. Charter was never meant to be a tyrant's charter of impunity or his constitutional instrument of choice for self-protection. The World Court handles cases between states, not individuals. Without an international criminal court that holds individuals responsible for their actions, acts of genocide and egregious violations of human rights have generally gone unpunished in the last 60 years. An international criminal court with universal jurisdiction has been the missing link in the system of international criminal justice. The ICC will enable an escape from the tyranny of the episodic ad hoc tribunals in Rwanda and former Yugoslavia and should be an efficient and cost-effective alternative to them with respect to time, money and energy.
Its jurisdiction is activated only when states are unwilling or unable to investigate or prosecute. Similarly, the "responsibility to protect" requires states first to protect their populations, and triggers international intervention only after governments are either unable or unwilling to do so, or are complicit in crimes themselves.
Both agendas require substantial derogations of sovereignty, the first with respect to the norm of nonintervention and the second with respect to sovereign impunity up to the level of heads of state. Both also require sensitive judgment calls: The use of external military force to protect civilians inside sovereign jurisdiction must first satisfy legitimacy criteria rooted in just-war theory, while the prosecution of alleged atrocity criminals must be balanced against the consequences for the prospects and process of peace, the need for post-conflict reconciliation and the fragility of international as well as domestic institutions.
The human rights movement grew as an effort to curb arbitrary excesses by states against the liberties and rights of their own citizens. International humanitarian law emerged as an effort to place limits on the behavior of belligerent forces during armed conflict. The convergence of the interests of human rights and humanitarian communities with respect to protecting victims of atrocity crimes is a logical extension of their original impulses. At the same time, it produces the paradox of social movements whose original goal was to curb the use of force by states demanding the use of international force. Therein lies the rub.