Understanding Human Rights: International Criminal Court vs UN Security Council
The Sphere Within Sphere sculpture at the United Nations Headquarters in New York carries a profound message. As a gift from Italy to mark the arrival of the new millennium, it symbolizes the hope for a rebirth of the world, less troubled and destructive than the one we currently inhabit.
What's captivating about the sculpture is not just its form but its deeper meaning: a new world, emerging from within the old. It reminds us that real change is born out of transformation, and progress often comes with challenges. This symbolism resonates with the ongoing work of Human Rights protection, as the path to lasting change requires compromise and resilience.
Where do Human Rights Come From
Universal Declaration of Human Rights
Before discussing human rights, we should have a clear understanding of its origin as well as what it stands for. Modern perceptions of human rights are often traced back to the Universal Declaration of Human Rights (UDHR), which was drafted and signed by the United Nations after World War II.
In 1946, the UN Economic and Social Council (ECOSOC) established the Commission on Human Rights to draft the declaration. The commission consisted of 18 members from various countries and political backgrounds, including Eleanor Roosevelt as chairperson, alongside representatives from France, Lebanon, China, Canada, and the Soviet Union, among others.
Once drafted, the UDHR underwent thorough review by the UN General Assembly, receiving amendments and sparking debates from over 50 member states. After intense discussions, the declaration was put to a vote in 1948, and it was adopted with 48 votes in favor, none against, and 8 abstentions. Thus, modern human rights, as we know them, were born.
Although the UDHR is non-binding, it had two major global impacts. First, it laid the foundation for International Human Rights Law and influenced International Humanitarian Law. Second, it became a cornerstone for global human rights advocacy, continuing to serve as a guiding document for international organizations, governments, and activists worldwide.
Human Rights in History
The concept of human rights has already been evolved throughout history, appearing in different forms across various cultures and time periods. Hammurabi's Code, written around 1750 BCE, is one of the earliest examples of a legal system that aimed to protect individuals, particularly the weak, and promote fairness regardless of social status. This legal framework reflects the idea that human dignity and basic rights should be protected irrespective of an individual’s power or position.
In Classical Greece and Rome, Stoic philosophers believed in the intrinsic worth of every human being. This philosophy introduced the notion that all people are equal under the law, irrespective of their background or social standing. Their ideas laid the foundation for the later development of universal human rights.
Meanwhile, in Ancient China, Confucius emphasized ethical behavior, focusing on moral values such as duty and virtue. His teachings suggested that society should be governed by moral principles rather than strictly by legal codes, highlighting the role of ethics in human interactions and governance.
Across cultures and time, human rights appear as a concept expressed and interpreted differently, yet often advocated with or without local support, echoing John Rawls' view of human rights: rights that have political and moral significance, whether or not they are locally upheld.
Are Human Rights Perfect?
There are key questions that continue to be discussed regarding human rights today.
For instance, the American Anthropological Association (AAA), in its "Statement on Human Rights," raised important questions about the cultural representation of human rights. From different cultural perspectives, human rights can carry drastically different meanings. One concern is whether the drafting of the Universal Declaration of Human Rights (UDHR) over-represented Western ideals and philosophies. The chairperson of the drafting committee was Eleanor Roosevelt, the First Lady of the United States, and a majority of the participating countries were from the West. It was indeed recorded that Peng Chun Chang, the representative of China, in particular, sought to ensure that the document was inclusive of Eastern traditions and that it emphasized universal dignity without being overly focused on Western ideals.
Due to cultural differences, the universality of human rights, as stated in the UN Charter, has been questioned. Critics argue that the document may impose a set of values that do not align with the traditions, religions, or societal norms of all cultures. This raises the question of whether human rights, as defined by the international community, can truly be applied uniformly across diverse nations and communities, or if they need to be more context-specific to respect cultural differences.
Thirdly, some states have expressed concerns about the potential for the declaration to interfere with national sovereignty.
Enforcing Human Rights: A Comparative Study of the International Criminal Court vs. UN Security Council
Is it truly achievable to enforce human rights? Hypothetically, let's assume human rights, as outlined in the UDHR, are universally accepted and ethically sound to apply across all member states. The concept seems straightforward: if everyone agrees, enforcing human rights should be a given. But the reality is far more complicated.
In the current landscape of international organizations, the International Criminal Court (ICC) stands out as one of the closest attempts at an ideal human rights enforcement body. It’s responsible for prosecuting genocide, war crimes, crimes against humanity, and aggression—some of the gravest violations under International Humanitarian Law. In theory, it seems like the perfect structure for upholding human rights. But in practice, the ICC faces significant challenges.
First of all, the three permanent members of the UN Security Council have all refused to join the International Criminal Court, which significantly limits the ICC’s power and authority. Because of its commitment to universality, the ICC cannot prosecute citizens of non-member nations without violating national sovereignty. This shows, in practice, that national sovereignty often takes precedence over human rights, especially for the world’s most powerful countries.
Secondly, some African leaders have accused the ICC of selective prosecution, including the prosecution of Thomas Lubanga (DR Congo), Omar al-Bashir (Sudan), and Joseph Kony (Uganda), arguing that it disproportionately targets African nations. This has led to threats of withdrawal from certain African Union member states, further complicating the court's legitimacy and reach.
The issue with the ICC is that it finds itself alienating both the strongest and the weakest nations. On one hand, powerful nations are reluctant to join or remain in the ICC, while on the other, many economically less developed countries (ELDCs) feel targeted and threatened by its jurisdiction. It creates a paradox where neither end of the spectrum fully supports the court.
Cicero’s famous quote, "In time of war, law falls silent," can be extrapolated to suggest that in times of strong national interest, even equal rules become unenforceable. This gets to the heart of the ICC’s problem: powerful member states are asked to sacrifice aspects of their national sovereignty to an international body with absolute authority. As pointed out by Grossman when explaining why the U.S. chose not to join the ICC, no superpower wants to submit to an institution that might infringe on its strategic interests.
When the strongest nations are beyond prosecution, the ICC’s focus shifts disproportionately to weaker ELDCs. This imbalance is what fuels the perception that the ICC’s mandate is selective, reinforcing resentment and threats of withdrawal from these nations.
The UN Security Council, in contrast, is an international organization that has proven effective in most situations. Why does the Security Council succeed where the ICC struggles? The answer lies in the structure of power. The strongest UN members are given an advantage in shaping international affairs through the veto power. This allows the Security Council to function with the support of global powers, even if that means the decisions aren’t always equitable.
When I spoke with Bruce Knotts, president of the UN NGO Committee, he mentioned discussions about adding a 6th permanent member to the Security Council, possibly from Africa or Latin America. However, these countries weren’t granted veto power because they aren’t seen as having the same level of influence or power as the current five permanent members. This dynamic keeps the balance of power tightly controlled, and while it makes the Security Council effective, it also limits broader representation.
What I’ve learned about international politics during my time at the United Nations is that every outcome—whether it's a decision, policy, declaration, or treaty—is the result of balancing philosophical ideals, national interests, and socio-economic realities. The truth is, instead of aiming for a perfect organization that purely promotes and enforces human rights, what we end up with are necessary compromises.
Take the UN Security Council, for example. It acknowledges that power gives certain countries an advantage in international politics, formalized through mechanisms like the veto power. If the ICC, or a similar future body, adopted a similar structure—perhaps by granting veto power or specific jury rights to influential nations—it could create a more realistic and effective system for enforcing human rights. It may not be ideal, but it would allow for some level of compromise, which is often the best we can achieve in the complex landscape of global governance.
In the end, the world does seem to be a constant battle between idealists, who strive for what should be, and pragmatists, who focus on what can be achieved in the current reality. It’s hard to say which will prevail in the long run. I suspect the answer, as with most things, lies somewhere in between—a delicate equilibrium.
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