How Much “Law” Is There in “International Law”?

In his famous speech at Fulton Missouri in 1946, Winston Churchill is famously remembered for his unforgettable phrase about “an iron curtain” coming down in the heart of Europe. Less known is that in this same speech Churchill pointed out that the entire experience of pre-war Europe had convinced him that the rule of law, whether at home or more broadly, “needs a good constabulary.”

This is the issue at the heart of the debate around the “responsibility to protect.” Since the emergence of the modern nation state several hundred years ago, it has been clearly understood that a sovereign’s power depends on an effective monopoly on the legitimate use of force, and the ability to connect breaches of the law with enforcement of order and the requisite penalties.

For several hundred years we have wrestled with the issue of how to reach agreement on international norms against aggression between states, and, more recently, aggression and breaches of basic understandings of human rights within countries. “R2P” should not be seen as some kind of novelty, but rather as an expression of the very values that led to the Atlantic Charter, the UN Charter, and subsequent agreements on genocide and other crimes against humanity.

It can rightly be said that we now have a much deeper understanding of the values, norms, and behaviour that make this elaboration of the rule of law so necessary. We are watching in central Africa today the continuation of violence so brutal and widespread that it has rightly been called “Africa’s World War.” And, just as in the terrible conflicts of 1932-1945, we see that ethnic cleansing, genocide, the violation of various human rights, and mass destruction remains as the terrible orders of the day.

The inconvenient truth is that we can recognise and describe the tragedy, but governments of states are unwilling to match the loss of life with effective remedies. It is fashionable to blame the “United Nations” for this gap between crimes and enforcement (and punishment), but that ignores the difficult truth that it is modern governments themselves that have not been willing to match rhetoric with action.

The General Assembly rings with the cries of “never again,” but there is no credible international approach to intervention. Still millions die without an effective response. The responsibility for the failure to enforce the rule of law lies not so much in New York as it does in Washington, Ottawa, London, Paris, Moscow, Beijing, and all the other national capitals in which states have completely failed to figure out how and when to intervene. The lack of any consensus as to how to do this has led to a crisis of faith and belief in the very international institutions that were set up after the supposed “wars to end all wars.”

But the answer to this crisis is not to succumb to it, or to retreat to the notion that “intervention never works” or “there is no such thing as international law.” We have to pick up the pieces, and insist that our governments keep working at it, and that the United Nations itself encourage the debates and decisions that are an essential part of building a better world.

There is no excuse for indifference, and no justification for retreat.

Throughout the month of April 2014, the Canadian Centre for the Responsibility to Protect and OpenCanada.org will be publishing reflections on the lessons learned since the Rwandan Genocide from prominent Canadians who have shown leadership in promoting global humanitarianism as part of the series Canadian Voices on R2P.