Over the past decades the international community has been rather reluctant in the prevention off mass atrocities and keeping its promise of ‘never again Auschwitz’. As illustrated by several cases in the 20th century the United Nations (UN) has been unable to function effectively in the prevention of mass atrocities. Cronin (2002) argues in his article ‘that there seems to be a conflict between intergovernmentalist and transnational forces within the UN’. These two ‘faces’ embrace ‘different sets of interests and reflect different constituencies’ (Cronin, 2002, 53). Therefore the objective of this paper is to address what the evolution of international law and international responses to mass atrocities in the late 20th century indicate about the relative influence of the intergovernmental and transnational ‘faces’ of the UN, as discussed by Bruce Cronin (2002).
This paper will conclude that while transnational actors have achieved increased influence within the UN, intergovernmentalism stays the dominant force within world politics and therefore the UN is unable to function effectively when member states interests are at stake. In order to support this argument references to changes in international law and international reactions, both by individual states and by the United Nations, to mass atrocities in Cambodia, Iraq, Rwanda, Bosnia-Herzegovina, and Kosovo will be analyzed.
‘Two Faces of the United Nations’
International organizations can play various roles towards their member states (Rittberger et al. 2012, 4). This leads to ‘different scholarly conceptions of international organizations’ (Rittberger et al. 2012, 4). The institutional structure of the UN suggests that this institution cannot be defined in one-way or the other. Its original conception was primarily as a collective security organization created by and for its member states (Cronin 2002, 55&67). The intergovernmentalist ‘face’ of the UN illustrates the ‘overlapping interests of its member states’ (Cronin 2002, 53). States often use the organization as an instrument with which states pursue their own interests (Rittberger et al. 2012, 4). These political processes primarily reflect the interests of the most powerful member states (Cronin 2002, 55; Rittberger et al. 2012, 4). Cronin defines actions of the UN as intergovernmental when it requires ‘active cooperation and participation of member states’ (Cronin 2002, 54). He also argues that intergovernmentalism is defined ‘through diplomatic or domestic political channels’ (Cronin 2002, 54).
However to a certain extent the UN can be seen as an autonomous actor (Cronin 2002, 54). This transnationalist ‘face’ of the UN represents a common good that goes beyond the interest of an individual state and represents the collective good (Cronin 2002, 53). These concerns are often promoted by nongovernmental organizations or other specialized agencies (Cronin 2002, 53). In this regard, the UN can be seen as an arena where the international organization resembles a ‘playing field’ of different actors rather than a ‘tool of state policy’ (Rittberger et al. 2012, 4). These different actors seek to convince member states to confirm to global values such as human rights (Rittberger et al 2012, 18). These transnational concerns conflict with intergovernmentalist concerns such as international security (Cronin 2002, 53).
The transnational ‘face’ is the embodiment of the broader international community that goes beyond individual states (Cronin 2002, 60). Cronin defines the international community as the following: ‘historically situated collectivities of recognized political actors who maintain formal, ongoing relationships with each other in international affairs on the basis of an integrated set of procedural and political norms’ (Cronin 2002, 62). He suggests three possibilities to determine its level of cohesion: consensus among the most influential states on important principles of global politics (sovereignty and non-intervention), the degree of support by domestic groups and secondary states and the ‘extent to which there is a universal-membership organization with the authority to create and enforce norms of behaviour’ (Cronin 2002, 64). In this view, the historic development of the international community reflects the normative constitution of the international system. The way it develops can help to create state practices and attitudes towards transnational values (Cronin 2002, 63).
Evolution of International law and responses towards mass atrocities
Immediate aftermath WWII
In response to the mass atrocities committed by Nazi Germany during the Second World War, the founders of the UN sought the legal recognition of universal human rights to which the national state could not interfere (Schrijver 2011, 106). Several legal mechanisms were set in place to prevent such happening in the future (Smith 2010, 1). The prohibition to commit serious international crimes, including genocide and crimes against humanity, came with the drafting of the Nuremberg Trials and the Genocide Convention (Smith 2010, 11; Schrijver 115). This also led to individual accountability for those individuals responsible behind the state for committing mass atrocities (Schrijver 2011,112). Thus the international criminal law came to life as a new jurisdiction (Schrijver 2011, 112). The Genocide Convention is however very restricted and narrow. The legal definition does not include the notion of ‘cultural’ or ‘political’ genocide nor is it easy to improve the intent of such crimes (Smith 2010, 13&20; Genocide Convention 1948). In addition to the Genocide Convention, the founders of the UN sought the legal recognition of universal human rights. In order to achieve this goal, the General Assembly of the United Nations (UNGA) drafted in 1948 the Universal Declaration of Human Rights (UDHR) (Smith 2010, 15).
With the establishment of the International Court of Justice (ICJ) in 1949, the UN became a more autonomous actor in ‘both a legal and political sense’ (Cronin 2002, 57). This shows the influence of the transnationalist function of the UN. In this regard, the international community created an international legal personality, capable of possessing international rights and duties (Cronin 2002, 57). This reflects the transnational identity for the UN with the image as an ‘international actor’ (Cronin 2002, 57).
Cold War Period
With the drafting of the Genocide Convention and the UDHR the transnational face of the UN became more visible. However, the principle of sovereignty and non-intervention increased in importance after 1945 and prevailed throughout the Cold War period (Wheeler 2000, 78; Hehir 2010, 47). The UN Charter of 1945 codified sovereign equality and the right of non-interference as a universal principle (Hehir 2010, 47). As Article 2(7) of the UN charter states: ‘Nothing should authorize intervention in matters essentially within the domestic jurisdiction of any State’. It clearly prohibits states from interfering in the internal affairs of other states (Cronin 2002, 65). This right to non-intervention causes a tension between humanitarian intervention and state sovereignty (Hehir 2010, 41;Cronin 2002,53). This contention reflects a comparable conflict inside the global framework itself between transnationalism en intergovernmentalism (Cronin 2002, 53).
Despite the fact that allegations of genocide were made quite often by several non-governmental organizations, ‘the Genocide Convention was seldom invoked by states during the Cold War’ (Smith 2010, 15). This is illustrated in the case of Cambodia. The Khmer Rouge regime tried to cut Cambodia off from the outside world while carrying mass atrocities out on it own population. Before an UN-committee could investigate the situation of the reported ‘killing fields’ Vietnam invaded Cambodia, overthrew the regime and installed a new government (Wheeler 2000, 78). Vietnam’s invasion, which stopped the Khmer Rouge in its human rights violations, was highly condemned by the international community (Wheeler 2000, 78). While Vietnam could have justified its actions on humanitarian grounds it did so on a two-wars argument (Wheeler 2000, 85). Even though the United Nations Security Council (UNSC) and UNGA recognized the human rights violations of the Khmer Rouge regime, they also reaffirmed that Vietnam could not justify unilateral military action (Wheeler 2000, 78). No state tried to justify Vietnams invasion under the doctrine of humanitarian intervention (Wheeler 2000, 98). Therefore Vietnam was heavily sanctioned by the United Nations (Wheeler 2000, 79). The USA and its Western allies condemned Vietnams actions mostly on the grounds of the Cold War context and the trauma of the Vietnam War (Wheeler 2000, 92). A second group of actors that condemned Vietnam its actions was the ASEAN . They were worried about the regional security and Vietnam becoming a regional hegemon (Wheeler 2000, 95). Another group that was condemned Vietnams invasion was the non-aligned movement. A large number of new states emerged in the period of decolonization. Their position on this issue was clear, their could be no exception to the non-intervention principle because this would make it possible that larger and more powerful states would to abuse this principle (Wheeler 2000, 98).
The security policy of the UN largely reflected the intergovernmental interests of the UNSC and the bipolar structure of the international system (Cronin 2002, 55). The principal powers have been rather reluctant in becoming involved in situations where their interest where not at stake. They have shown a clear unwillingness to promote transnational values. As a result, the organization did not embrace the commitment of collective security (Cronin 2002, 56).
Post Cold War Period The case of the Iraq intervention is marked as a turning point in the new norm of humanitarian intervention under international law (Wheeler 2000, 140). In contrast to the Cambodian case, the international response to stop human rights abuses was quite strong and fast in the Iraqi case (Wheeler 2000, 139). In order to protect the Kurds in Northern-Iraq resolution 688 was issued by the UNSC. Western states saw this resolution as a legitimating argument to justify their intervention (Wheeler 2000, 140). A no-fly zone was set up over Northern Iraq and Western military forces set up ‘safe havens’ to protect the Kurds (Wheeler 2000, 139). Initially humanitarian claims did not persuade Western states to commit forces to Iraq. President Bush defended the non-intervention principle in fear that this situation would turn into another Vietnam (Wheeler 2000, 150). However, media coverage and domestic pressure made it increasingly apparent that states had a responsibility to involve (Wheeler 2000, 142). According to Wheeler, ‘Resolution 688 was the first time that UNSC demanded improvement in human rights situation as a contribution of international security’ (Wheeler 2000, 146). The increase in involvement by different types of actors has made it difficult to balance the humanitarian aspects that are promoted by transnational bodies of the UN with military directives coming from the UNSC. The norms that embody the cosmopolitan values of the international community are often in conflict with the self-interests of the member states. Instead of acting on behalf of the international community, the actions of the UN tend to be a function of self-interest and therefore member states fail to distinguish its faces of transnationalism and intergovernmentalism. While Iraq is seen as a landmark case in supporting a new normative rule of humanitarian intervention in international law, the case of Rwanda shows the inadequacy of the international community to ‘to distinguish its role as an intergovernmental organization (coordinating the activities of its membership) and its role as a transnational network promoting some type of common good’ once again (Cronin 2002, 64). With alarming intelligence reports of the violent conflict between the Hutu and the Tutsi received by the UN a year before the genocide began, the international community was reluctant to take action (Wheeler 2000, 208). Having failed in the prevention, the UNSC was confronted with the decision in reinforcing UN forces to monitor a ceasefire between the government of Rwanda and the RPF (Wheeler 2000, 208). UNSC resolution 872 issued the UNAMIR mission (Wheeler 2000, 212). This underfunded UN force only had the authorization to monitor a ceasefire (Wheeler 2000, 214). Genocide Convention signatories have a legal obligation to prevent and punish genocide. This is the reasoning of the avoidance of naming the events in Rwanda genocide by Western governments (Wheeler 2000, 209). This legitimated their decision not to intervene and stop the massacres (Wheeler 2000, 222). There was no state willing to risk its own soldiers and to protect the civilians of Rwanda (Wheeler 2000, 222). African states argued that this case was not a matter of internal affairs but they did not have to capacity to intervene nor did anyone come forward to lead an intervention (Wheeler 2000, 238) Eventually the only exception to the Western neglect was France. It intervened unilaterally and this resulted in ‘Operation Turquoise’ and the creation of safety zones to protect the civilians (Smith 2010, 172). Other Europeans states were not so enthusiastic about France its actions given the non-humanitarian motives of France (Smith 2010, 172; Wheeler 2000, 231). Stopping genocide and promoting human rights requires the willingness of the international community to promote such values (Cronin 2002, 64). Governments were unwilling to advance transnational objectives in the interest of an outside populace or a more extensive international community (Cronin 2002, 64). The initial refusal of Western governments to intervene and put a stop to the genocide shows the unwillingness of states to risk their armed forces and to safe the Rwandans (Wheeler 2000, 240).
Bosnia and Kosovo
The non-interference principle was used to justify not taking action in several cases. However, with the end of the cold war, many UN members were much in favour of human rights and spread of democracy (Smith 2010, 105). Therefore the number of UN peacekeeping missions increased (Smith 2010, 105). When Bosnian Serb forces started with the ethnic cleansing of their population under the leading of Milosevic the UNPROFOR mission was set in place to provide humanitarian aid and to safeguard a ceasefire between the Serbs and Croats (Smith 2010, 107). The European response both in Iraq and Bosnia-Herzegovina concentrated on the legal front. The specific issue of genocide was generally ignored (Smith 2010, 106). The journalist reveal of a Serb detention camps for Muslim prisoners had a major effect on public opinion (Wheeler 2000, 151). Besides the domestic pressure and repeated calls for an armed intervention to stop ‘ethnic cleansing’, the overall international response was not to take military action but to give humanitarian aid and to create safe-havens (Wheeler 2000, 251). They wanted a peaceful solution of the conflict trough peaceful diplomacy (Smith 2010, 107). Even though public opinion was much in favour of military intervention, the international community did not change its policy. A turning point in this case is the fall of Srebrenica . However, a possibility of genocide did not play a major role in greater engagement of the UNSC (Wheeler 2000, 252). Widespread airstrikes against the Serbs were more a reaction to the fall of Srebrenica as a safe haven than condemning the mass atrocities that were carried out (Wheeler 2000, 242). The UNSC authorized the airstrikes; this led to the Dayton peace agreement (Smith 2010, 123). The Bosnian case resulted in setting up the development of a legal framework to punish genocide by setting up a tribunal to try individuals of former Yugoslavia for violations of war crimes, crimes against humanity and genocide.
The failure to prevent genocide in Rwanda and Bosnia-Herzegovina prompted critical evaluation of the UN. In both Bosnia and Rwanda, member states had shown little or no willingness to intervene with coercive military measures to stop the violence. This led to a rapid response to prevent a second Srebrenica in the war in Kosovo (Smith 2010, 179). The ongoing violence towards the Kosovar Albanians by the Serbs under Milosevic and the many refugees resulted in a response from the Contact Group, who condemned the violence on both sides but blame the Yugoslav army for most civilian casualties (Wheeler 2000, 262). The Security Council issued resolution 1160 and posed an arms embargo on the FRY and demanded a peaceful solution (Smith 2010, 183; Wheeler 2000, 259). After the ceasefire failed, NATO launched airstrikes to force Milosevic to withdraw its forces from Kosovo (Wheeler 2000, 262). Just like the case in Iraq, NATO members justified its actions under existing Security Council resolutions, especially under resolution 1199 (Wheeler 2000, 262). It had no Security Council mandate to launch the airstrikes. NATO its actions where highly condemned by China and Russia, since they both vetoed military action (Smith 2010, 186). They believed that the events in Kosovo were part of the internal affairs (Smith 2010, 186-187). In order to justify their actions, NATO member states described the events in Kosovo as genocide (Smith 2010, 203). The initial refusal of Western governments to intervene and put a stop to the genocide shows the unwillingness of states to risk their armed forces and to safe the civilians (Wheeler 2000, 240).
Furthermore, the failure of the international community to act on genocide throughout 1990s evoked discussions about how the international community needs to react to genocide and other mass atrocities (Smith 2010, 16). Two ad hoc tribunals (that of Rwanda and former Yugoslavia) were created to establish an international legal framework to punish genocide (Smith 2010, 16). In addition to this the International Criminal Court was set up and started operating in 2002 (Smith 2010, 16). Although the creation of these tribunals was slow in coming, the establishment of an international legal framework to punish genocide was finally set in place in the development of international criminal law (Smith 2010, 16). As a result of the war in Kosovo, there were calls by the international community for guidelines for legitimizing humanitarian action (Smith 2010, 16). The UN summit in September 2005 considered a series of reforms, which resulted in the principle of the responsibility to protect in 2005 (Smith 2010, 16; UN summit 2005).
Influence of Transnationalism and Intergovernmentalism
The way that the UN accepts both intergovernmental and transnational tasks is not all by itself an issue (Cronin 2002, 64). Conflict emerges when the association neglects to recognize its part as an intergovernmental association and its part as a transnational system advancing cosmopolitan values (Cronin 2002, 64). These values are often in conflict with the needs and diversions of the member states. While international law had seen some huge developments it often has been used to serve particular state interests rather than an expression of cosmopolitan values (Wheeler 2000, 3). As shown in several cases member states were often unwilling to promote such values, particularly when these goals do not directly benefit domestic interests. The principles of non-intervention and sovereignty prevailed throughout the Cold War (Wheeler 2000, 13). The division of the world into ‘two hostile great power blocks’ plays a central role in preventing the development of a coherent international community and an authority to enforce norms of behaviour and promote the transnational goals of the UN (Cronin 2002, 63). The premise of the cases in the post-Cold War is ‘the central role of the Security Council in legitimizing the threat or use of force in defense of humanitarian values’ (Wheeler 2000, 139). Human rights and acting on mass atrocities were widely advocated by journalists, NGOs and public opinion. The growing awareness of the pressures of world public opinion shamed the UNSC into adopting resolutions and Western government pushed out the boundaries of these resolutions for legitimate intervention (Wheeler 2000, 160). This is illustrated in the case of the Iraq where intervention is marked as ‘a turning point in the new norm of humanitarian intervention under international law’ (Wheeler 2000, 140). Many UN members were much in favour of human rights and spread of democracy (Smith 2010, 105). Therefore the number of UN peacekeeping missions increased (Smith 2010, 105). It was however not very effective in stopping the mass atrocities and interventions came to late (Wheeler 2000: 243). The UNSC technically represents the interests of the great powers; it not well suited to deal with many transnational issues within UN mandate (such as human rights) (Cronin 2002, 64). Members of the UN are too concerned with their own interests and the principle of sovereignty that they are hesitant in leaving transnational activities in the hands of the transnational bodies of the UN (Cronin 2002, 65). As Cronin argues: ‘The increase in involvement by different types of actors has made it difficult to balance humanitarian aspects that are promoted by transnational bodies with military directives coming from the intergovernmental bodies of the UN’ (Cronin 2002, 67&68).
The evolution of international law and international response to mass atrocities in the late 20th century indicate that the intergovernmentalist face of the UN prevailed throughout the century. While the transnationalist face increased visibility, the intergovernmental face stayed the dominant force within world politics (Cronin 2002, 53). With the drafting of the Genocide Convention and the UDHR the transnational face of the UN became more visible. The norms that embody the cosmopolitan values of the international community are often in conflict with the self-interests of the member states. Instead of acting on behalf of the international community, the actions of the UN tend to be a function of self-interest and therefore member states fail to distinguish its faces of transnationalism and intergovernmentalism. This shows the ongoing clash between intergovernmentalism and transnationalism in the UN.
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