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Westphalia uber alles – is international law a liberal fantasy?

By September 2, 2014Media

In June an unlikely duo, William Hague and Angelina Jolie, hosted the London summit on rape in
conflict. Delegates watched as officials from around the world pledged to improve their nation’s record
on sexual violence in war. In many cases, those same officials returned to countries that systematically
exclude women from medical care or legal redress in the event of rape, blaming them for surviving
their ordeal, rather than dying honourably while fighting off their attackers. Some of the very nations
condemning rape allow and even encourage their armed forces to oppress minorities by raping women
and girls.

Yet, the officials wanted to be seen to be in favour of virtue and against evil. As happens so often
at summits, diplomats sign international treaties, conventions and covenants, knowing they will be
disregarded in practice, just as their regimes ignore their own domestic bills of rights and constitutions.
Lest we forget, Stalin abolished capital punishment while killing millions of his own citizens.
Optimists argue these events serve a purpose by highlighting issues previous ignored, raising the bar of
expectations, and nudging countries to reform so they can stay in line with their peers.
However, policy makers often fail to follow through on worthy initiatives, merely ticking the box,
flattering themselves that something more than hot air results from these august gatherings. More
cynical leaders go home after their shopping trips (an incentive to attend international summits) and
revert to type, quietly amused by the credulity of earnest Western do-gooders.

Unfortunately the UK is guilty of its own hypocrisy on rape. While we condemn it, we deny asylum
to some female democracy activists who have been raped during interrogation in their country of
origin. My human rights group, Waging Peace, is currently trying to stop the deportation of two
brave Sudanese women, one a campaigning journalist and the other deemed suspect in the eyes of
the Khartoum regime because she is from Darfur. Both had traumatic treatment at the hands of the
Sudanese authorities; both endured rape in custody, and both fled to the UK, believing they had
sufficient grounds to be considered for political asylum. One is now in a detention centre, and the
other is in legal limbo, like so many courageous activists who sacrifice their safety to replicate British
fairness, democracy, pluralism and tolerance in Sudan.

Putting the UK’s double-standards to one side, the impediment at the heart of any well-intentioned
international initiative like the London rape summit is the 1648 Treaty of Westphalia. It still determines
the impunity with which regimes can treat their citizens with no outside interference. If you strip away
the self-righteous hyperbole at ratification ceremonies at the United Nations General Assembly, you
are left with Westphalia uber alles.

Laws are meaningless unless there is some method of enforcing their provisions. Take the International
Criminal Court, which opened in 2002. Without the power to arrest those it indicts, the institution is
mocked and reviled, characterised as a neo-colonialist strategy to humiliate African leaders. Until it
starts indicting white war criminals, so it will remain.

The UN, still the source of most international law and institutions, was built on the highest
expectations, yet in practice it achieves only the lowest common aims. For example, at the 2013
Commission on the Status of Women. Russia and the Vatican joined forces with the block of Muslim
countries to remove any language from the communique suggesting beating women was a bad idea.
Some human rights campaigners and academics claim this is the golden age of international
human rights law, a period that began in the aftermath of the Holocaust in 1948 with the Universal
Declaration of Human Rights and the Genocide Convention. Sadly, the roll call of atrocities since
then from Indonesia to Burma and Cambodia, from Chile to Guatemala, the Soviet Union and China
to Zimbabwe, suggests a less edifying track record. During the Cold War, we averted our eyes from
massive human rights abuses when those rulers were “on our side” against the Communist treat. Now,
we take the same selective view depending on whether or not a regime proclaims it stands with us
against Islamist terror.

In the brief hiatus (Francis Fukuyama’s End of History) between the collapse of the Berlin Wall in
1989 and 9/11, the most revealing tests of our collective morals occurred in Bosnia (1992-5) and
Rwanda (1994), countries in which we had no economic or geopolitical interest. We no longer had
the excuse that global considerations were at play, as they had been when we turned a blind eye to
Saddam, Zia, Suharto, Rios Montt and Pinochet. Hence, we did worse than nothing, in the case of
Bosnia actively conniving to prevent the Bosnians defending themselves.

Arguably the tone was set in 1993 in Somalia. The loss of eighteen American lives in Mogadishu in
the ‘Black Hawk Down’ battle caused the world’s unipolar power to lose its appetite for humanitarian
intervention. Because of Mogadishu, the people of Bosnia and Rwanda were left to die, despite the fact
that the international community had plenty of warning genocide was imminent. The fate of Bosnia
and Rwanda was symptomatic of our selective application of existing international human rights laws
which should, in theory, have over ridden the Treaty of Westphalia.

Following the disgrace of Rwanda the UN adopted the Responsibility to Protect doctrine, known as
R2P. Yet, as UN diplomats spoke movingly of ‘never again’ at the R2P ceremony in 2005, Sudan was
ethnically cleansing 90% of its black African villages in Darfur. More recently, R2P was invoked to
justify intervention in Libya, but ignored in the case of the continuing misery in Syria. No wonder the
Russians and Chinese accuse the so-called “coalition of the willing” nations of hypocrisy.
One is tempted to conclude that almost the only truly functioning international laws involve trade and
finance. Enforceable laws and punishments evolved in the first place to regulate and protect property
rights, not to safeguard human dignity. Perhaps we shouldn’t be surprised that today the international
laws with teeth are those concerning property and money. When business interests are involved,
most nations willingly delegate jurisdiction to supranational tribunals with power to apply sanctions
and punitive measures, with, for instance, the laws of the sea, copyright, space, counterfeit and other
commercial areas.

In the absence of enforcement provisions in most other international laws, treaties or conventions, there
are less effective ways to hold nations to their promises, such as reciprocity e.g. applying trade tariffs
or imposing extortionate visa fees on a country’s citizens. This rarely happens when it is human rights,
rather than money or trade at issue.

The Petersen Institute found sanctions, especially targeted so-called smart sanctions, have been
effective in 40% of cases since 1990. However, our-arms-salesman-in-chief, David Cameron, is
unlikely to jeopardise relations with India by raising the status of women or with Saudi Arabia by
calling for religious tolerance.

Nations concerned about atrocities and war crimes can also name and shame the perpetrating country
and its leaders. Yet, as the UK and the US have found when lecturing the world on human rights
abuses, corruption or the environment, they are open to charges of hypocrisy. The disapproval of
individuals like Archbishop Desmond Tutu might have more impact.

The exception to this jaundiced world view is the European Union, the European Convention on
Human Rights and the European Courts of Justice and Human Rights. On several occasions we at
Waging Peace have only prevented the deportation of Sudanese democracy activists back to certain
death in Khartoum because of last-minute applications under the European Convention on Human
Rights. As terrified men and women have been dragged onto planes, hand-cuffed, a fax from the
European Court has arrived, literally saving the lives of the wretched Sudanese dissident concerned.
Yet the ability of European countries to establish continent-wide standards for the environment,
employment, etc., is under threat from the Transatlantic Trade and Investment Partnership currently
being debated. TTIP will allow corporations to sue governments for blocking their access to markets
using national or European regulations. In other words, if the UK or the EU votes for certain standards
of safety in children’s toys, or to restrict products tested on animals, or to ban GM seeds, our laws can
be challenged by corporations and swept aside. Strange, then, that Nigel Farage has not been outraged
by this potential surrender of UK sovereignty to TTIP. (Nor has he ever questioned the loss of UK
military command and control implicit in membership of NATO).

A second assault on European institutions comes from the UK government due to the long-running
war within the Conservative Party. It is rumoured David Cameron will use his conference speech in
September to further appease his troublesome Euro-phobes by attacking not just the European Union
but the Convention on Human Rights and the Strasbourg court.

Speaking on the day he left government in July, Ken Clarke called the European Convention the
bedrock of British values for which Britain fought in the Second World War. Sadly, it remains one of
the few examples of multilateral human rights law with teeth.

The European Union and Europe’s courts are also the best example of meaningful legal institutions that
other regions such as Africa might look to as models – this at a time when the African Union recently
voted to give its leaders immunity from prosecution for genocide and war crimes against their own
citizens. For these reasons we must cherish and defend our European institutions.

Rebecca Tinsley

WagingPeace

Author WagingPeace

Waging Peace is a UK human rights organisation campaigning against genocide and systematic human rights violations in Sudan.

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