by DANIEL KOVALICK
When I studied law at Columbia in the early 1990s, I had the fortune of studying under Louis Henkin, probably the world’s most famous human rights theoretician. Upon his passing in 2010, Elisa Massimino at Human Rights First stated in Professor Henkin’s New York Times obituary that he “literally and figuratively wrote the book on human rights” and that “[i]t is no exaggeration to say that no American was more instrumental in the development of human rights law than Lou.”
Professor Henkin, rest his soul, while a human rights legend, was not always good on the question of war and peace. I know this from my own experience when I had a vigorous debate with him during and continuing after class about the jailing of anti-war protestors, including Eugene V. Debs, during World War I. In short, Professor Henkin, agreeing with Supreme Court Justice Oliver Wendell Holmes, believed that these protestors were properly jailed because their activities, though peaceful, constituted a “clear and present danger” to the security of the nation during war time. I strongly disagreed.
That Professor Henkin would side with the state against these war protestors is indicative of the entire problem with the field of human rights which is at best neutral or indifferent to war, if not supportive of it as an instrument of defending human rights. This, of course, is a huge blind spot. In the case of World War I, for example, had the protestors been successful in stopping the war, untold millions would have been saved from the murderous cruelty of a conflict for which, to this day, few can adequately even explain the reasons. And yet, this does not seem to present a moral dilemma for today’s human rights advocates. (I will note, on the plus side, that Professor Henkin did become increasingly uneasy with the Vietnam War as that conflict unfolded, and specifically with the President’s increasing usurpation of Congress’s war authority).
In the end, it was not from Professor Henkin, but from other, dissident intellectuals who I learned the most about human rights and international law. The list of these intellectuals, none of whom actually practice human rights in their day job, includes Noam Chomsky, Edward S. Herman, Jean Bricmont and Diana Johnstone. And of course, I have read a lot of what they have to say on this subject on these very pages of CounterPunch.
And, what all of these individuals have emphasized time and time again is that international law, as first codified in the aftermath of World War II in such instruments as the UN Charter and the Nuremberg Charter, was created for the primary purpose of preserving and maintaining peace by outlawing aggressive war. And, why is this so? Because the nations which had just gone through the most destructive war in human history, with its attendant crimes of genocide and the holocaust, realized full well that those crimes were made possible by the paramount crime of war itself. As Jean Bricmont, then, in his wonderful book Humanitarian Imperialism, explains, the first crime for which the Nazis “were condemned at Nuremberg was initiating a war of aggression, which, according to the 1945 Nuremberg Charter, ‘is the supreme international crime, differing only from other war crimes is that it contains within itself the accumulated evil of the whole.’”
In other words, the logic of the very founders of international law, including international human rights law, was that, to preserve human rights, the primary task of nations is to ensure peace and to prevent war which inevitably leads to the massive violation of human rights. As Noam Chomsky has noted for years, quite notably in his 1971 Yale Law Review article entitled, “The Rule of Force in International Affairs,” 80 Yale L.J. 1456, one of the very first substantive norms established by the UN Charter is prohibition against aggressive war. Such a norm is contained, as Chomsky relates, in Article 2(4) which provides that all UN members “shall refrain in their international relations from the threat or use of force . . . .” And, contrary to the position of the new humanitarian interventionists, Article 2(7) of the Charter specifically states that “[nothing in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state . . . .”
Sadly, as Chomsky noted even back in 1971, these norms, the paramount ones of the entire UN system, have sadly been read out of international law. And, they have been read out by, among others, such chief human rights groups as Amnesty International (AI) and Human Rights Watch (HRW). As Jean Bricmont, citing international law scholar Michael Mandel, explains in Humanitarian Imperialism, while AI and HRW urged all “’beligerents’” (without distinguishing between the attackers and the attacked) at the outset of the 2003 U.S. invasion of Iraq to respect the rules of war, neither group said a word about the illegality of the war itself. As Bricmont quite correctly stated, “[t]hese organizations are in the position of those who recommend that rapists use condoms,” ignoring the fact that once the intervention they failed to oppose “takes place on a large scale, human rights and the Geneva Conventions are massively violated.”
This brings us to the present time. Just last week, Amnesty International issued a long statement in opposition to an article I penned for Counterpunch on “Libya and the West’s Human Rights Hypocricy.” AI, in its counter-blog, entitled, “A Critic Gets it Wrong on Amnesty International and Libya” (see, owl.li/eYmTb), AI claims that I was wrong in stating that it had supported the NATO intervention in Libya. AI, affirming the critiques of Bricmont and Mandel, claims in this blog, that “Amnesty International generally takes no position on the use of armed force or on military interventions in armed conflict, other than to demand that all parties respect international human rights and humanitarian law.” AI then goes on to try to clarify that, in advance of the NATO intervention in Libya, AI, in a February 23, 2011, release, merely called on the Security Council to take immediate measures against Libya and Gaddafi, including [but not limited to] freezing the assets of Gaddafi and his senior military advisers, and investigating the possibility of a referral to the International Criminal Court.
In its blog contra my article, AI claims that it called for such action based upon Gaddafi’s verbal “threat to ‘cleanse Libya house by house’” to end the resistance. While this is true, this is not the whole truth. Thus, in AI’s Feburary 23, 2011 release, it also based this call upon “persistent reports of mercenaries being brought in from African countries by the Libyan leader to violently suppress the protests against him.” And, as we learned from our own Patrick Cockburn in anIndependent article from June 24, 2011, entitled, “Amnesty questions claim that Gaddafi ordered rape as a weapon of war,” Amnesty ended up debunking the reports (though well after NATO’s attack against Libya had begun) that Gaddafi was bringing in foreign mercenaries to fight.
As Cockburn, citing Donatella Rovera, senior crisis response adviser for Amnesty International, explains:
“Rebels have repeatedly charged that mercenary troops from Central and West Africa have been used against them. The Amnesty investigation found there was no evidence for this. “Those shown to journalists as foreign mercenaries were later quietly released,” says Ms Rovera. “Most were sub-Saharan migrants working in Libya without documents.”In other words, AI, on Feburary 23, 2011, was calling for Security Council action against Libya based upon reports about foreign mercenaries which it would later conclude were false, and upon verbal threats Gaddafi had made — very weak bases indeed for Security Council action.
And what about the calls for such action themselves? As we all know, the Security Council did act, authorizing a NATO attack upon Libya which began on March 19, 2011. The ordering of such an attack was a possible and indeed likely action which the Security Council would take, especially given that countries like the U.S. and France were aggressively pushing for such action at the time. And, AI full well knew this, and its calls for Security Council action worked in tandem with the efforts of the U.S. and France to obtain authorization for such an intervention.
In other words, AI, based at least in part on false reports, was pushing for Security Council action which it knew could, and most likely would, result in the authorization of force against Libya. And indeed, AI’s other call for possible referral of sitting Libyan officials to the International Criminal Court was tantamount to a call for armed intervention, including regime change, because only such intervention could bring about the hauling of sitting government officials to The Hague. AI’s current professions of neutrality on the issue of intervention notwithstanding, it can truly be stated that AI supported the intervention that took place in March of 2011 as an objective matter.
And sadly, this objective support was based in part on false reports of foreign, black mercenaries being brought into Libya. These false reports of mercenaries, in addition to feeding the calls for intervention, had another terrible effect – they helped lead to the massive reprisals against black Libyans and foreign guest workers during the conflict in Libya and continuing after the time that Gaddafi was toppled. The most notable of such reprisals was the utter destruction of the town of Tawarga, a town largely populated by black Libyans, by anti-Gaddafi rebels. To its great discredit, AI, in its rush to push for Security Council intervention, spread the very false reports which fueled such acts of vengeance.
And, what about AI’s response to crimes committed by NATO’s intervention in and bombing of Libya? AI, in its response to my article, cites to its criticism of NATO as evidence of its even-handedness in responding to the conduct of all sides of the Libyan conflict. Specifically, AI cites to the following criticism it made as such evidence:
Although NATO appears to have made significant efforts to minimize the risk of causing civilian casualties, scores of Libyan civilians were killed and many more injured. Amnesty International is concerned that no information has been made available to the families of civilians killed and those injured in NATO strikes about any investigations which may have been carried out into the incidents which resulted in death and injury.Of course, this mere criticism demonstrates AI’s utter lack of even-handedness. First of all, in order to please its NATO patron, AI obviously felt compelled to lead its criticism with a compliment – patting NATO on the back for allegedly trying to “minimize the risk of causing civilian casualties,” as if aerial bombardment of major cities can ever constitute the minimization of such risks.
Then, AI complains that “no information has been made available” to the families of civilians killed or injured “about any investigations which may have been carried out into the incidents which resulted in death and injury.” What “investigations” is AI referring to here? Clearly, AI is complaining that NATO, left to police itself, has not shared the results of its own investigations into its own crimes.
The truth is that AI, which called for Security Council and possible ICC action against Libya as NATO was sharpening its knives to invade, has not called for a body outside NATO (e.g., the ICC) to investigate and possibly prosecute NATO officials for their crimes. What is good for the goose then, is not good for the gander in AI’s view. Of course, the ICC does not exist to prosecute those from the paler, Western countries. No, the ICC (which the U.S. is not even a signatory to and is therefore exempt from) is, in practice, for the darker races of the poorer countries; for those from Africa, Asia, and from time to time, the lesser Slavic nations. And, therein lies the problem inherent in the entire international human rights system of which AI is an integral part.
As we learn from Diana Johnstone in a CounterPunch article entitled, “How Amnesty International Became the Servant of U.S. Warmongering Foreign Policy,” AI’s journey to becoming an appendage of the U.S. and NATO recently became complete with its appointment of Suzanne Nossel as the new Director of Amnesty International USA. Diana Johnstone explains that Suzanne Nossel openly advocated, and indeed coined the term, “soft power” projection by the U.S. when she served in her last job as Assistant Secretary for International Organizations at none other than the U.S. State Department. And, as Jean Bricmont notes in Humanitarian Intervention, and as Ms. Nossel herself and AI fully understand, “soft power” only works because it has the very real threat of “hard power” (including economic sanctions and military intervention) behind it. AI has sadly forgotten that the wielding of such power by the rich countries to bully the weak is forbidden by the UN Charter which prohibits both the actual use and threat of force. It is those prohibitions which must be enforced first and foremost to truly protect human rights.
What’s more, as Diana Johnstone further explained in her CounterPunch article, Suzanne Nossel, just before being hired by AI, played a direct role while at the U.S. State Department in ginning up the pretexts for the NATO intervention in Libya. Ms. Johnstone explains that, “As Deputy Assistant Secretary of State for International Organizations, Ms. Nossel played a role in drafting the United Nations Human Rights Council resolution on Libya. That resolution, based on exaggeratedly alarmist reports, served to justify the UN resolution which led to the NATO bombing campaign that overthrew the Gaddafi regime. “ In other words, Ms. Nossel’s role in pushing the NATO intervention was similar to that of AI’s at the time, with both pushing exaggerated, and indeed false, claims to justify stepped up action against Libya.
AI’s current attempts to distance itself from the very NATO intervention which AI and Ms. Nossel worked together to help bring about simply do not ring true. I would submit that it is time for AI to do some real soul-searching on the issue of whether it wants to serve the interests of human rights or to serve the interests of NATO and Western military intervention, for it truly cannot serve both masters.
Daniel Kovalik is a labor and human rights lawyer living in Pittsburgh. He currently teaches International Human Rights at the University of Pittsburgh School of Law.