The Endless Fantasy of American Power
Neither Trump Nor Biden Aims to Demilitarize Foreign Policy
On April 1, 2011, the South African judge Richard Goldstone published an op-ed in The Washington Post qualifying some claims he had made in a controversial UN report on Israel’s conduct during its 2008 Operation Cast Lead in Gaza. His apparent retraction of an important claim in the report -- that Israel had a policy of intentionally targeting civilians -- set off a firestorm of speculation about his motives and the legitimacy of his original report. Several of Goldstone’s co-investigators subsequently spoke out in defense of the report’s original findings, but Israel has called on the United Nations to officially renounce them.
The hubbub over the Goldstone report raises the question of whether the UN is capable of independent human rights investigations. But in truth, governments tend to decry negative reports about their behavior regardless of where they come from. Human Rights Watch, a nongovernmental organization (NGO) known and respected for its investigative reporting, is also regularly accused of bias against Israel and is lambasted by the other countries singled out in its reports. The International Criminal Court’s investigations of human rights abuses in Sudan have also been denounced by Khartoum.
Indeed if anything, UN investigations are generally perceived as being more credible -- and, in fact, sometimes are more credible -- than the available alternatives. For example, the UN report on rape during the Yugoslav wars in the 1990s, authored by former Prime Minister of Poland Tadeuz Maczowiecki, aggregated hundreds of interviews of authorities, doctors, and rape survivors. It is regarded as among the most well-researched and accurate portrayals of these crimes, particularly in comparison to many of the more sensationalistic media and NGO reports of the period, as well as those of other international organizations. But even the best reporting can fall victim to charges of impartiality: to this day, the Bosnian Serb government denies many of the Mazowieki report’s allegations as one-sided.
The real problem is that states generally dislike criticism, wherever it comes from, most of all when it appears selective. This is exacerbated by the absence of any mechanism to systematically track and evaluate violations of the Geneva Conventions across the board. When the conventions were created, they were meant to be self-enforcing: signatories pledged that their own troops would follow the rules and agreed to bear primary responsibility for monitoring and punishing violations. But the treaties establish no independent organization to monitor compliance with the Geneva Conventions in real time, investigate alleged crimes after the fact, or produce even-handed analyses of each actor’s conduct measured against baseline humanitarian standards set by the treaties.
The International Committee of the Red Cross is the organization that comes closest to playing an official monitoring role. The drafters of the ICRC treaty tasked the quasi-NGO with “guarding” the Geneva Conventions. But its mandate includes neither undertaking fact-finding investigations nor publishing and disseminating their results. Although the ICRC does engage in “humanitarian diplomacy,” quietly reminding governments of their duties when it observes violations of the Geneva Conventions, it rarely condemns governments openly. This, of course, is precisely how it retains its legitimacy, neutrality, and access to detainees and needy civilians.
Besides the ICRC, other independent actors -- NGOs, academics, journalists, and think tanks -- issue reports to name and shame offenders. But these are nearly always selective. NGOs are not truly independent: they depend on donors for funding, and their resources for comprehensive investigations never match the need for such missions. So, NGOs must make choices about which atrocities to highlight and where, and they do criticize some countries more than others for tactical reasons. For example, a statistical study by researchers James Ron, Howard Ramos, and Kathleen Rodgers found that Amnesty International is much likelier to criticize powerful countries than weak ones because they presumably have a great influence over international standards. As a result, NGOs too are often subject to accusations of partiality.
Some international judicial institutions investigate war crimes after the fact, usually at the behest of states and always in the context of legal proceedings. But the work of these courts has also sometimes been perceived as politically tainted. For example, when in 2007 the World Court found Serbia not guilty of promulgating genocide in Bosnia, the decision was widely criticized by those who saw Serbia’s complicity in the 1995 Srebrenica massacre as beyond doubt. Ad hoc tribunals such as the ICTY have been established several times to try individuals accused of war crimes after conflicts. Although these trials tend to enjoy greater legitimacy than domestic war-crimes trials of captured enemies, their ad hoc nature raises eyebrows. Each court has a slightly different mandate, funding structure, and jurisdiction. And all are limited in the types of investigations they can carry out by their founding statutes.
The International Criminal Court was designed in part as a response to the perceived inadequacies of the ad hoc tribunals and is the best example of an institution that balances investigative independence and legitimacy with politics. But even the ICC demonstrates the drawbacks of relying on judicial institutions for authoritative, systematic fact-finding. The ICC has the power to undertake investigations into the conduct of even its most powerful member states. But the court is unable to perform many investigations at once, since its primary responsibility is to hold trials. Most war crimes trials and investigations continue to be the purview of the offending states. And, since the ICC is bound by strict rules for evidence gathering, its investigations are unlikely to generate a complete picture of crimes committed. Its aim is rarely to gather data on all crimes but to focus on those most easily judiciable. And unlike U.S. courts, where the prosecutor’s job is to gather the most evidence possible in favor of the prosecution, ICC investigators attempt to provide the judges with the most “balanced” account possible. This approach shapes and limits the kinds of facts they find.
Cases that meet the threshold for ICC involvement are sometimes politicized as well. Those referred to the ICC by the UN Security Council often include provisions tailor-made to suit the desires of powerful states. When the Security Council referred Libya to the ICC for crimes against humanity this year, the resolution included a provision that the court’s jurisdiction could not extend to investigating crimes committed by troops of non-signatory states during Operation Odyssey Dawn.
The ICC prosecutor can commission investigations independently, but in picking and choosing among possible cases, he, too, faces the accusation of selectivity. All five of the cases the ICC has taken up so far involve African defendants, leaving the court open to accusations of having a western bias. But in truth, the ICC is operating precisely as it was designed to -- as a court that accommodates diverse legal approaches, prosecutes only the worst offenders, and operates in cooperation with the Security Council. It is, ultimately, a judicial body. It is not, and was never meant to be, a body for comprehensively monitoring and reporting on violations of the Geneva Conventions.
To date, no such body exists to track compliance with humanitarian law. But not all international regimes are so toothless. The Nuclear Nonproliferation Treaty is overseen by a comprehensive and well-funded international bureaucracy, the International Atomic Energy Agency, which has the power to inspect and monitor nuclear facilities and take its findings to the Security Council. The World Health Organization (WHO) measures the incidence of pandemic disease and coordinates the global responses to them through standard-setting, dissemination, and reporting. The World Trade Organization is able to monitor states’ adherence to free-trade rules and can legitimize the punishment of those who violate them. The International Narcotics Control Board surveys the production and export of licit medicines and regulates the trade in illegal narcotics.
But the more controversial a treaty institution is, the more it will be watered down during negotiations to achieve international consensus. Nothing is as sensitive as the means by which nations wage wars, especially when their vital security interests are at stake. Advocates of the Geneva Conventions argue that a self-enforcing set of rules is at least more powerful than no rules at all. And they fear that attempts to strengthen enforcement mechanisms would reopen negotiations over the conventions themselves, raising the risks that they may come out even weaker than before.
But the key weakness of the Geneva Conventions is that the rules that currently exist are inadequately monitored and more seldom enforced. Without an independent monitoring mechanism capable of making informed, systematic, nonpartisan claims about what has happened on the ground, it is all too easy for countries to exploit the gray areas in humanitarian law. Consider drone attacks in Pakistan, which are criticized for having an undue impact on civilians. No independent body is responsible for systematically counting how many civilian casualties they cause. Nor is there any international institution to aggregate other relevant numbers -- for example, civilian casualties from non-aerial attacks worldwide -- for comparison. Instead, journalists and think tanks produce wildly conflicting estimates, relying on non-comparable sources and talking past one another. The discussion over drone use is thus stalemated, and it is left to the allegedly offending government to determine whether, in its estimation, its actions are justified.
An independent, multilateral monitoring agency tied to the Geneva Conventions could begin to fill this reporting gap. Such an organization would ultimately need to be designed by states through a negotiated consensus, but it is not too hard to envision what it could look like. Its role could be not to judge or condemn but to report; its data, a gold standard for courts, governments, NGOs, and scholars. The agency could be staffed not by lawyers and advocates but forensic specialists, statisticians, social scientists, and criminal investigators. It could include a mechanism for receiving and investigating confidential reports from soldiers who witnessed war law violations, filling a serious gap in the Geneva regime by formalizing war-crimes whistle-blowing. By limiting its mandate to objective reporting and requiring it to conduct rigorous and systematic investigations in every situation that meets a legally defined threshold for armed conflict, states would have less reason to fault the results of its investigations.
The monitoring agency could report to the UN Security Council and General Assembly. Its data could be publicly available to NGOs, journalists, and other members of international and global civil society. If a country failed to allow investigators to monitor war situations, the UN could move to enact sanctions.
Such an organization would require a significant commitment of resources -- and, ultimately, political will -- but so do current regimes, such as the WHO and the UN Charter regimes. These institutions have been shown to work; the WHO eradicated smallpox, and malaria is on the decline. According to political scientist Joshua Goldstein, the incidence of inter-state war is nearing zero -- thanks in large part to UN peacekeeping and the UN Charter regime. The gains from building a war-crimes-monitoring agency, too, would be well worth the cost.
Of course, such an agency could not by itself deter war crimes. As has been the case with the ICC and other humanitarian law treaties, a few states -- the United States, China, Russia, and Israel, for example -- might refuse to become members. But the ICC has influenced world politics even without the involvement of those countries. The establishment of a monitoring organization for the Geneva Conventions would give the international community an opportunity to debate appropriate investigative standards, set the selection criteria for investigations, and generate much-needed empirical data on war. The data could be used not only to call out violators but also help those who take the Geneva Conventions seriously better implement them. Over time, like other international regimes, its mere existence may encourage good behavior and generate more rigorous reporting -- even from countries that have refused to join it.