HUMANITARIAN INTERVENTION VS INTERNATIONAL COURTS AND TRIBUNALS: WHICH IS MORE EFFECTIVE AT PROTECTING HUMAN RIGHTS?

Author: Emily Tennant

Following the human rights violations which occurred during World War 2 (hereinafter referred to as “WW2”), multiple international courts have been established in the hope of enforcing a global standard of human rights. Although these courts and tribunals have had a variety of successes (for example, the notorious Nuremburg Trials) they are limited by modern concerns such as neo-colonialism and Western imperialism. Further, the Westphalian Principle of Sovereignty (which provided the precedent that each state has the right to self-determination and should not have its affairs interfered with by other states or organisations) greatly restricts the ability of international courts and tribunals to enforce rulings. Due to this, it could be argued that humanitarian interventions are more successful than international courts and tribunals at protecting human rights. Since the 1990s, there have been many successful interventions, such as those in Kosovo and East Timor. There have also, however, been outrageous failures, such as the failed missions in Somalia and Iraq, which led to increased human rights abuses in these regions. Considering these failures, one could also argue that although international courts and tribunals only have limited success, they may offer a better level of protection to human rights, as humanitarian intervention sometimes leads only to an increase in human rights abuses.  Both of these arguments are worth pursuing.

Courts have often been described as having ‘winner’s justice’.

Since WW2, international courts and tribunals have had varying levels of success. In particular, the United Nations tribunals (hereinafter referred to as the “UN” and “UN tribunals”) have proved adept at holding heads of state and other highly ranking individuals to account. The Rwanda Tribunal saw Jean Kambanda convicted of genocide – the first head of state ever to be convicted of this. Furthermore, this tribunal set the precedent that rape could be employed as a method of perpetrating genocide. Similar results can be seen in the Former Yugoslavia Tribunal of 1993. The International Criminal Court and International Court of Justice have also seen success, convicting warlords and settling border disputes, which has reinforced human rights in areas which are infamous for their human rights violations. Regional courts also protect human rights to a large extent. The European Court of Human Rights has a compliance rate of 90% and succeeded in condemning violations of human rights by Russia in Chechnya in 2005. This Court seemingly holds a great moral authority. International courts and tribunals, therefore, are evidently successful in protecting human rights.

Unfortunately, these courts also have significant limitations. The UN Tribunals, for example, have frequently been accused of perpetuating ‘Victor’s Justice’, in which the so-called ‘winners’ of the international disputes are punished far less harshly for the same human rights abuses as the ‘losers’. Furthermore, these tribunals are criticised for enforcing Western morals in a form of modern imperialism. UN Tribunals have never held international organisations such as NATO or the UN Security Council accountable for war crimes committed during interventions. Perhaps the most severe limitation of all international courts and tribunals is how easily they can be undermined by powerful states. For example, the USA has refused to shut down Guantanamo Bay despite global pressure to do so. Similarly, the UK refuses to allow prisoners access to voting rights. The International Court of Justice lacks authority because their rulings are rarely enforced by the UN Security Council, which is dominated by the USA and Russia. Smaller states with powerful supporters are unlikely to be criticised – the UK has not condemned Saudi Arabian involvement in the Yemen famine due to oil trade deals. This lack of cooperation severely limits the ability of these courts and tribunals to protect human rights. It could be argued, therefore, that humanitarian intervention is more successful.

Since the end of the Cold War and fall of the Berlin Wall, liberal democracy (as championed by Clinton and Blair) had led to an increase in intervention. Nation building, strong public support, and the existence of a legitimate government was conducive to successful interventions. The intervention in Kosovo in 1999 is a good example of this. Following tension in the Balkans, the threat of a NATO offensive of 60000 troops was enough to stem the conflict. Afterwards, 50000 troops remained in the area with the intention of restoring peace and stability; this nation building effort rendered the Kosovo intervention one of the most successful to date. Successful interventions also occurred in East Timor, Sierra Leone, and the Ivory Coast. By only looking at the successful interventions, it could be argued that humanitarian interventions protect human rights more effectively than international courts and tribunals.

A number of unsuccessful humanitarian interventions disproves this conclusion. For a humanitarian intervention to be successful, there is a sizeable list of criteria it must meet. A lack of public support (as observed after the televised Mogadishu massacre in Somalia) is almost guaranteed to ensure failure. Furthermore, interventions can be seen as an ‘alien occupying force’, pushing Western standards of human rights and liberal democracy onto less developed nation states. The failed intervention in Afghanistan was due to the geographical remoteness of the area and the inability of Western powers to fully comprehend the cultural aspects of the conflict. Lastly, the most important factor in determining the success of an intervention is the commitment to nation-building following the end of a conflict. For example, states such as Libya and Somalia were declared ‘failed states’ after Western powers failed to make solid commitments to nation-building. Further, a lack of exit strategy and future-planning arguably led to the development of Islamic extremism and terrorism in Iraq and Syria. This has resulted in a dramatic increase in human rights abuses worldwide due to this increase in terrorism. Hence, humanitarian intervention does not always successfully protect human rights and, in some cases, exacerbates human rights abuses.

Summarily, humanitarian intervention often results in further breaches to human right laws, thus cannot be said to protect them. Although international courts and tribunals have failings in their selective inaction, when action is taken, it almost always has a positive outcome. While both methods currently fail to effectively and efficiently enforce a global standard of human rights, the ideological hegemony of liberal values continues to encourage cooperation between states. This facilitates a global discourse surrounding potential solutions to these flaws. For example, increased involvement of non-Western states in international organisations and a heightened focus on the unique political cultures of the states that require legal or military intervention. It could be posited that this emphasis on international cooperation and education drastically increases the likelihood of successful courts, tribunals, and interventions which safeguard standards of human rights and seek to advance them.

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