[*PG399]GENOCIDE, THE UNITED NATIONS, AND THE DEATH OF ABSOLUTE RIGHTS

Michael J. O’Donnell*

EYEWITNESS TO A GENOCIDE: THE UNITED NATIONS AND RWANDA. By Michael Barnett. Ithaca and London: Cornell University Press 2002. Pp. 181.

Abstract:  This Book Review uses Michael Barnett’s argument that the United Nations (UN) refrained from intervening to stop the Rwandan genocide out of considered self-interest as a case-study through which to examine whether absolute rights exist in practice. The UN’s actions in Rwanda represent a staggering failure to protect absolute rights, namely, the Rwandan people’s right to freedom from genocide. The Rwandan case-study demonstrates that absolute rights, which have an impressive pedigree in legal and philosophical scholarship, are nothing more than a theoretical ideal—they are non-existent in practice. Nonetheless, there are hopeful signs, such as the international community’s 1999 intervention in Kosovo, that absolute rights need not be “dead” as a useful concept. In order to maintain relevance as practical, as opposed to normative, ideals, absolute rights must be given greater priority in policymaking, allowing the existing, powerful regime of human rights law to prevent future absolute rights catastrophes.

Introduction

In 1994, the most clear-cut case of genocide since the Holocaust took place in Rwanda, in which some 800,000 people were killed in a span of roughly 100 days.1 After decades of conflict between the country’s majority Hutu and minority Tutsi populations, the early 1990s in Rwanda witnessed an ongoing civil war, an economic crisis, and the [*PG400]growing pains of multi-party democratization after nearly twenty years of single-party rule by the Hutu.2 The establishment of a Tutsi-led opposition party led first to civil unrest, and then to spontaneous massacres by Hutu extremists bent on creating an ethnically pure Rwanda.3 The death of Hutu president Juvénal Habyarimana by plane crash on the evening of April 6, 1994 provided the spark that ignited this tinder box of tension and conflict; within hours, the Hutu Presidential Guard, the Interahamwe, set up roadblocks and began targeting and killing Tutsi and politically moderate Hutu by the thousands.4 After two weeks of civilian massacre, the United Nations Security Council, which had established a peacekeeping force in Rwanda in 1993, withdrew all but a nominal presence of its forces from Rwanda, allowing the genocide to proceed unchecked.5

In Eyewitness to a Genocide: The United Nations and Rwanda, Michael Barnett, a political officer at the United States (U.S.) Mission to the United Nations from 1993–94, reconstructs the history of the Rwandan genocide as it was experienced by decision makers in the UN.6 In a search for moral accountability, Barnett investigates a communication breakdown between the UN’s force on the ground in Rwanda (UNAMIR), the UN Secretariat, and the Security Council, which led to the peacekeeping force’s withdrawal at the moment it was urgently needed and its failure to return until the fighting had ended.7

[*PG401] Barnett concludes that the UN bears some moral responsibility for the Rwandan genocide.8 His provocative explanation for the Secretariat’s troubling behavior has grave implications for the modern notion of human rights that the Secretariat understood perfectly the implications of the terrible information it received from the ground and decided to withdraw the bulk of its troops anyway.9 Specifically, Barnett suggests that the Secretariat was mindful of the cost of another failed attempt at peace enforcement so soon after the UN’s very public failure in Somalia and consequently withheld information from the Security Council, denying it the moral ammunition to organize a more concerted effort to stop the massacre.10 The Secretar[*PG402]iat, Barnett argues, essentially weighed the options—ending a genocide by giving the Security Council information that could lead to action or saving the UN from potential self-destruction by sitting out the politically untenable conflict in Rwanda—and chose what it perceived to be the imperative.11

This Book Review uses Barnett’s argument that the UN refrained from intervening in Rwanda out of self-interest as a case-study through which to examine whether absolute rights exist in contemporary international practice. Absolute rights are the bedrock of liberal political theory and the cornerstone of the human rights movement.12 They are fundamental guarantees of basic human rights that may never be transgressed—a “floor” for all human behavior.13 Thus, evidence of their erosion or outright disappearance threatens the very existence of a protective human rights regime.14 Barnett’s disquieting hypothesis provides such evidence. If the UN, that great hope for humanity to rise from the ashes of the Holocaust and World War II, was willing to sacrifice its obligations to protect absolute rights out of a calculated interest in self-preservation, what can be expected from the rest of the world’s polities? And if states and intergovernmental institutions can so easily abandon their duties to protect absolute rights, where does that leave the human rights movement as it enters the twenty-first century?

Part I of this analysis briefly introduces the theoretical underpinnings of absolute rights in philosophical and legal discourse. Part II identifies, through an extended syllogism, the UN’s failure to intervene in Rwanda as a case in which absolute rights were not protected. Part III examines the implications of this failure to bridge theory and practice for the modern human rights movement by placing the Rwandan case-study into context. Part III also responds to the assertion that human rights law’s chief benefits are its indirect protections by arguing that the moral urgency presented by absolute rights viola[*PG403]tions requires a continuing effort for their immediate and direct protection.15

I.  The Philosophical and Legal Theory Behind
Absolute Rights

Barnett’s account of the UN raises the notion of absolute rights, also referred to in the international law context as non-derogable rights.16 Either moniker embodies the well-defined philosophical and legal ideal that some rights are so fundamental that they must never be compromised, regardless of context.17 A necessary corollary to the notion of absolute rights is that they must be protected in order to have practical, in addition to normative, value.18 In the case of the UN and Rwanda, such protection entailed a positive duty to prevent rights violations, rather than a negative duty to refrain from violating rights.19

A.  Philosophical Theory of Absolute Rights

Much has been written from a philosophical perspective on the notion of absolute rights, which find their roots in natural law.20 Two distinct schools of thought dominate political ethics on the subject.21 The classical liberal ethics, usually attributed to Immanuel Kant and echoed most prominently in the writings of the modern scholar John [*PG404]Rawles, argue that certain rights are above compromise and hence can never be bargained away even on behalf of pressing diplomatic or political interests.22 Such rights are, as political theorist Isaiah Berlin put it, “absolute barriers to the imposition of one man’s will on another.”23 The opposing, utilitarian viewpoint is credited to legal theorist Jeremy Bentham and expressed in the contemporary writings of Professor Sandel.24 Utilitarianism stands for the proposition that nothing is absolute, which tends to undermine the existence of fundamental rights.25 Under this theory, if the greater good can be achieved by sacrificing the rights of one to benefit many, then the social utility of that action demands such a sacrifice.26

B.  Legal Theory of Absolute Rights

In the context of human rights law, absolute or non-derogable rights have been labeled jus cogens norms, fundamental rights, supra-positive rights, elementary rights, and basic rights.27 One commentator has defined these rights as the foundation of the international communityrights so certain that they need not be accepted by subjects of law to retain their power.28 A number of legal instruments expressly recognize this exaltation of certain human rights to absolute status.29 For instance, the International Covenant on Civil and Political Rights is one of many human rights treaties that enumerates non-derogable rights, including the right to freedom from torture and slavery, and the right to be recognized as a person before the law.30

[*PG405] An important debate exists in the human rights community over whether the enumeration and protection of absolute rights fragments the power of human rights law.31 Professor Meron argues that such a distinction necessarily leaves behind a class of inferior, second-class rights, which apparently may be compromised if the competing imperative is great enough.32 This Book Review’s practical answer to the “second-class rights” argument is that the moral urgency of preventing absolute rights violations such as the Rwandan genocide warrants their separate classification, if fundamental stature can result in their protection, regardless of the effects on human rights theory.33

II.  The Non-Existence of Absolute Rights in the UN’s Response to the Rwandan Genocide

If the theoretical ideal of absolute or non-derogable rights is that certain human rights are above compromise, then the practical manifestation of that ideal is the moral imperative that absolute rights should always be protected.34 The UN’s failure to protect the Rwandan people from genocide, according to Barnett’s argument, was based on a conscious determination by the Secretariat to put institutional interests above humanitarian ones.35 If this argument is correct, the UN’s behavior would represent a classic utilitarian action that implicitly rejects absolute rights.36

Assuming a priori the veracity of Barnett’s argument, the UN’s behavior can be evaluated in the form of a five-part syllogism:37 if A) genocide violates an absolute right, and B) it is the UN’s duty to pre[*PG406]vent such a violation, and C) there were available legal mechanisms by which the UN could have acted, and D) the UN, aware of the situation, did not act to protect the absolute right, choosing instead another course of action, then E) the UN’s behavior is evidence of a failure to protect absolute rights.38

A.  Does Genocide Violate an Absolute Right?

Genocide is the most heinous crime that can be committed against a human population.39 In the famous words of the UN General Assembly, genocide “shocks the conscience of mankind.”40 A mandate for its prevention and punishment has been enshrined in a widely-ratified multilateral treaty.41 Genocide’s status as a jus cogen, or customary norm of international law from which no derogation is permitted under any circumstances, is broadly accepted.42

Commentators have suggested that any list of absolute rights should be short and relatively abstract.43 It nearly goes without saying that the right of a people to be free from wholesale slaughter would top any such list.44 Given the near-universal consensus that the taking of innocent life is a moral wrong, genocide stands alone as a wrong [*PG407]that actually multiplies a wrong, magnifying its infamy.45 The essence of genocide’s power is that it denies the very right to exist to entire groups of people based solely upon their identity, making it at once selective in practice and universal in scope.46

Given genocide’s legal and moral opprobrium, if freedom from it cannot be enumerated as an absolute right, then absolute rights do not exist.47

B.  Is It the UN’s Duty to Prevent Genocide?

The existence of an absolute right begs the practical question, who will protect that right?48 In the case of protecting the Rwandan people from genocide, Barnett argues that the UN, and not powerful member states, bears the responsibility.49 Member states could at least conceivably have denied a duty to act on behalf of others whose suffering in a far away land had little to do with their immediate interests.50 Yet such suffering fell directly under the purview of the United Nations.51 As the “bureaucratic arm of the world’s transcendental values,” the UN was in a position to frame the Rwandan crisis in a way that would have allowed the Security Council to vote for intervention.52 There is legal support for this policy argument. One of the UN’s enumerated purposes is “[t]o achieve international co-operation in solving international problems of a[] . . . humanitarian character, and in promoting and encouraging respect for human rights.”53 The UN, the central actor in the international community’s “moral division of labor,” was thus ideally situated to appreciate and respond to the humanitarian catastrophe in Rwanda.54

[*PG408] From a historical perspective, the appropriateness of the UN’s role as human rights protector is also clear.55 The use of the term “human rights” in the UN Charter represented the first enumeration of that ideal in a major international treaty.56 Also, the UN was the institutional force behind the creation of the Universal Declaration of Human Rights, the first instrument of international human rights law and one of the twentieth century’s most important instruments of international law.57 In the words of one of the field’s most distinguished scholars, Professor Henkin,

[F]or all its inadequacies, the United Nations represents and concentrates international concern over human rights. It put human rights on the world agenda a half century ago and has kept it there. It developed the international law of human rights . . . . It concentrates the world’s attention on human rights problems that cry for attention.58

Given this rich history, it would be an irony indeed if the UN, the very embodiment of human rights since World War II, would one day abandon its responsibility to prevent the most egregious of human rights abuses in order to continue to exist for another day.59 Such rationalization leads to a circular argument: the UN sat out the Rwandan genocide so it could prevent the next genocide, but if the next genocide also proved politically unapproachable, it would not interfere but instead wait for the next genocide . . . .60

C.  Could the Absolute Right Have Been Protected Under Existing Norms of International Law?

The UN could have acted to interrupt the genocide in one of two ways.61 The least dramatic, and most feasible (if politically delicate) [*PG409]means at its disposal was forcefully presenting the moral argument for action to member states on the Security Council, which would have paved the way for more than a nominal force on the ground in Kigali.62 The presence of an adequately equipped UN force, rather than the actual use of force, was a proven deterrent to the Hutu genocidaires.63 Yet at the moment reinforcements were most needed, the Security Council reduced UNAMIR from 2500 to a mere 270 troops, a force barely able to protect itself, let alone deter thousands of killers.64 A larger contingent would have been consistent with the parties’ requests for assistance in implementing the ceasefire of 1993, and thus would have fallen well within the Security Council’s discretion under Chapter VI of the UN Charter.65

There was ample opportunity for the UN to help establish a UNAMIR force large enough to deter the genocidaires, had the Secretariat chosen to act.66 Members of the Secretariat could have actively supported the interventionists on the Security Council, rather than rationalizing inaction with disingenuous references to the fog of war.67 Had the Secretariat chosen to emphasize the genocidal aspect of the [*PG410]Rwandan crisis, putting the real issue directly in front of policymakers, the moral imperative of intervention would have been clear and politically costly to oppose.68 But by deigning to communicate the military options recommended by UNAMIR’s force commander to the Security Council, and by characterizing events on the ground as simply another lapse into civil war, the Secretariat painted the UN’s role as conditional interlocutor, not determined peace enforcer.69 Instead of persistently presenting the case for intervention, as it had done during the Somali famine of 1991–92, the Secretariat, and particularly the Secretary-General, refused to put wind into the sails of those who were ready and willing to help.70

If the mere presence of a sizable UNAMIR had failed to deter the genocidaires, the UN could (and should) have invoked its Chapter VII powers and used force to stop the massacre. The UN Charter states clearly that international law authorizes the use of force under two circumstances.71 Under Article 51, force may be employed in self-defense following an armed attack on one state by another, which was not the case in Rwanda.72 Under Article 42, however, force may be authorized by the Security Council to restore international peace and security.73 As a tiny state in the strategically insignificant center of Africa, Rwanda may not have stood out as a threat to international security in the minds of UN member states.74 Nonetheless, as the International Criminal Tribunal for the Former Yugoslavia case Prosecutor v. Tadic states in dictum, it has long been settled practice that under international law, internal armed conflicts such as the Rwandan genocide can qualify as “threats to the peace” that may trigger action un[*PG411]der Chapter VII of the UN Charter.75 Thus a persuasive case could have been made to the Security Council for an increased mandate to match an increasingly desperate situation.76

D.  Did the UN, Aware of the Situation, Choose Another Imperative over the Protection of the Absolute Right?

The UN’s actual understanding of the Rwandan crisis and of the ramifications of its failure to intervene constitutes the weak link in the syllogism because it presents subjective questions that are impossible to conclusively answer eight years after the events in question.77 Barnett, however, makes a compelling case that the Secretariat knowingly frustrated intervention, one that is supported by other accounts of the Rwandan genocide.78 Barnett is quite clear in attributing the Secretariat’s silence to a conscious attempt to prevent the self-destruction of the UN:

[T]he Secretariat gave a calculated and staged performance that was designed to discourage intervention. Its preferences were born not from cynical, immoral, or purely instrumental reasons. It rank-ordered its responsibilities and calculated the risks associated with different types of actions. There were peacekeepers to protect. Also to consider was an organization that might not survive another failure. Protecting the organization from further harm or exploitation was, from the Secretariat’s view, ethical, legitimate, and desirable.79

III.  Rwanda in Context

Part II of this Book Review depicts the UN Secretariat’s actions as a quintessential example of utilitarianism over absolutism: it chose to refrain from intervening in Rwanda in order to protect the UN from [*PG412]self-destruction.80 Genocide, the most horrific abuse of absolute rights, did not present an absolute imperative.81 Is this case-study unique, or is it an example of a wider failure to protect absolute rights?

As the headline of any newspaper demonstrates, absolute rights do not exist in practice; they are nothing more than a theoretical ideal.82 Violations of non-derogable rights are widespread and have been catalogued all over the world in 2003.83 Slavery and the slave trade are alive and well in Africa and Southeast Asia.84 State-sanctioned rape and other forms of torture are rampant in the developing and developed world.85 Extra-judicial killings have become habit for many states’ governments.86 Genocide, the most terrible human rights violation of all, has claimed the lives of millions in the past thirty years.87

The Rwandan case-study’s place in this unhappy tradition is especially troubling because it presents a stark example of not merely a failure but a refusal to protect absolute rights because perceived imperatives were deemed more important.88 This utilitarian type of decision-making is more dangerous to the modern notion of human rights than world leaders’ apathy or political impotence to act.89 It will [*PG413]allow policymakers to continue to demote absolute rights in the future through the considered balancing of priorities.90 Such decision-making critically undermines absolute rights, which, by their very nature, must be paramount.91 If policy decisions continue to be made on the basis of the cold calculation practiced by the UN during the Rwandan genocide, absolute rights will be relegated to permanent theoretical status.92 Such a class of protections, which has rhetorical power but no practical usefulness, makes for fine intellectual scholarship and lofty debate, but does little to actually effectuate the goals of the human rights movement—to protect human rights.93

Policymakers must give absolute rights a more prominent position on the diplomatic and political scales of decision-making if such rights are to retain their relevance in human rights discourse.94 A number of considerations support this shift in priorities. First is the moral imperative posed by absolute rights violations, especially those committed on a massive scale, as in Rwanda.95 Western states and intergovernmental organizations capable of preventing such catastrophes have a moral obligation to humanity to do so.96 Second is enlightened self-interest by policymakers, in terms of the havoc massive rights violations invariably wreak on prospects for economic development, and on regional and global stability.97 Third is the need to address society’s broad acceptance of absolute rights as meaningful and enforceable protections. Each of the principal human rights treaties, so-described by the UN High Commissioner for Human Rights, has been ratified by over two-thirds of the world’s nations.98 Presumably, [*PG414]people in many countries support such legal instruments out of a not-unrealistic expectation that they will actually have binding force.99 This existence and under-application of international human rights law leads to a paradox appraisal of the current human rights regime.100 There is ample cause for frustration because the law is not applied. There is, however, cause for hope. Given such a theoretically powerful array of human rights protections, all that is needed to protect absolute rights is the political will to apply the many tools that are already in place.101

There is limited but hopeful evidence that a real commitment to absolute rights has begun to take root among policymakers at the national and international level. For instance, the drive toward holding absolute rights violators accountable has seen remarkable progress in the past ten years, with the creation of UN tribunals for Rwanda and the former Yugoslavia, a hybrid tribunal for East Timor, a Special Court for Sierre Leone, and a newly established International Criminal Court.102

More promising still is a recent instance of preventative, rather than reactive, absolute rights protection. In 1999 NATO led a bombing campaign against targets in Kosovo, Montenegro, and Serbia to prevent the genocide against Bosnians in the early- to mid-1990s from being repeated against Kosovar Albanians.103 In the scholarly debates that followed the air-strikes, which were launched without Security Council authorization, one prominent commentator proposed that NATO’s action marked a new state practice in humanitarian interven[*PG415]tion beyond the traditional confines of international law.104 According to this theory, NATO’s air campaign could be the first step in the development of a new legal custom whereby Security Council authorization for military action would prove unnecessary in certain circumstances.105 A humanitarian intervention argument that adheres more closely to the current confines of international law has been made by the Secretary General of the UN, Kofi Annan.106 Ever since UN member states failed to speak with one voice during the Kosovo crisis, Annan has forcefully argued that traditional notions of state sovereignty should never again prevent the Security Council from voting to confront massive human rights violations, through force if necessary.107 Human rights pundits naturally recoil at any suggestion that human rights should be protected by military intervention, which itself invariably entails many human rights violations.108 However, while the means of intervention in Kosovo arguably should have been more sensitive to human rights concerns, its ends were undeniably humanitarian.109

[*PG416] Although the willingness to use force exists as a last resort, it is important to note that the most effective prevention of absolute rights abuse does not require such drastic measures as military intervention.110 In extreme cases such as genocide or widespread enslavement, allowing a conflict to fester until the international community must intervene with force relegates policymakers to the most expensive, dangerous, and unpopular option.111 Military intervention is merely a failure of prevention, as Rwanda demonstrates.112 In smaller-scale instances of absolute rights abuse, such as torture during police interrogations, protecting absolute rights would simply require states and intergovernmental organizations to give effect to their rhetorical assertions of support for human rights ideals in their policymaking and rights enforcement.113

A renewed emphasis on enforcing absolute rights is needed to fill a conspicuous void in the daily functioning of human rights law.114 As one commentator in particular has observed, human rights law has largely failed to directly and proactively prevent rights violations, in[*PG417]stead making advances indirectly and over time.115 By providing a common language, reinforcing the universality of human rights, and legitimizing claims of rights, human rights law has gradually contributed to the broad goals of human rights.116 These indirect advances approach the problem of human rights abuse peripherally, compared to the direct advance this Book Review supports: actually preventing the most serious rights abuse through considered policymaking.117 While indirect advances have doubtless contributed to the current human rights landscape, defending absolute rights must mean more than slowly incorporating human rights ideals into the collective conscience of the world’s polities.118 In addition to touting international human rights law’s indirect benefits, the indirect rights theory concedes that human rights law’s direct impact has been limited to a few scattered successes.119 Even these triumphs have been largely reactive rather than proactive; they seek to punish rights violators rather than prevent abusive behavior in the first place.120 Genocide is a representative example of that class of human rights violations whose moral urgency requires a plan of action until the great day when the indirect effects of human rights law have advanced to the stage where they can protect people in a crisis.121

Conclusion

The UN’s failure to intervene in the Rwandan genocide of 1994, as portrayed by Eyewitness to a Genocide, is an illustrative example of a widespread failure to protect absolute rights.122 It evidences a yawning [*PG418]gap between the theoretical notion of absolute rights and a sorely needed enforcement of rights protections in practice.123 This Book Review responds to this divide by arguing that absolute rights should be elevated to the fore of decision-making and protected by enforcing existing legal norms.124

It may be a tautology to announce that the way to enforce absolute rights is simply to apply existing laws.125 But that tautology is sobering when accompanied by Rwanda’s stark reminder that without enforcement, the fine tradition of legal and philosophical debate over absolute rights is only so much theory.126 In order to prevent future human rights catastrophes like the Rwandan genocide, absolute rights must be accorded primacy by decision-makers. This would reflect their moral and practical importance, as well as their venerable status in the eyes of the citizens of the world.127

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