Anisa Navarro

ANTH 323/LSJ 321

December 13, 2023

Final Assignment: Analysis and Argument Essay

In this essay, I will address topic question 2, which focuses on the challenges associated

with compliance and the modes of intervention. I will draw upon Koh’s insights from the article

on the Transnational Legal Process, Mill’s perspectives on R2P^3, the findings of the

International Commission on Inquiry of Darfur, and Walling’s examination of Human Rights

Norms, State Sovereignty, and Humanitarian Intervention. Through the analysis of these articles,

I will be able to respond to the questions related to international compliance, international

intervention, and whether international agencies are effective in promoting human rights or if

they contribute to human rights abuses.

In Transnational Legal Process, Koh outlines the key elements of compliance, which are

interaction, interpretation, and internalization. These elements, as Koh argues, are meant to

further the integration of human rights policies into the legal framework of states. Before these

elements, is the concept of compliance through participation or obedience. Consequently,

compliance in adhering to human rights policies occurs with the commitment to uphold these

standards, which then aid in the consistent implementation of human rights laws internationally.

However, as I will further explore in this essay, compliance challenges arise from the state’s

prioritization of state sovereignty and self-interest, which trump the interests of international

peace and humanitarian laws.

In R2P^3, Kurt Mills examines the three possible intervention approaches taken by

international actors: protection, prosecution, and palliation. Challenges emerge in the

implementation of these interventions as states prefer one method over the other, with some

methods acting as a band-aid solution. The first intervention of prosecution typically occurs after

the human rights abuse takes place, though in some circumstances investigations can occur in

ongoing conflict; such as the case in Darfur that I’ll examine shortly. Palliation, however, can

occur during or after mass atrocities but is mainly implemented by international third parties

such as the ICRC. In the article, Mill criticizes the use of palliation as a humanitarian

intervention, as it works as an apolitical third party, that simultaneously can choose to side with

decent winners in conflict and choose whom to deny aid to. The third intervention is protection;

the method of intervention through protection is controversial to various international actors as

some perceive the protection of groups who are subjected to human rights abuses, as an

infringement on state sovereignty. In the action of protection, the international community (if

agreed upon) can send armed forces to physically protect the targeted. However, ideas of

protection are up to the discretion of those in power, as protection can include having extensions

of the United Nations present in the country - yet despite the international presence, atrocities of

human rights abuses can still occur; as in contemporary Palestine, where Israel has targeted

United Nation schools which have resulted in the deaths of dozens of United Nation officials.

The International Commission on Inquiry of Darfur is a prime example of what

international intervention looks like as the Security Council ordered an investigation on crimes

of genocide, and violations of both humanitarian law and human rights laws in Darfur. I will use

this article to connect both critiques and discussions of intervention and compliance. In this

article, the Commission outlines its intervention in prosecution; investigating reports of human

rights violations, determining if acts of genocide have occurred, and identifying the parties

responsible.
 In Human Rights Norms, State Sovereignty, and Humanitarian Intervention, Carry

Walling utilizes various human rights cases to examine when and how the international

community intervenes. Walling discusses that most preliminary stages of intervention efforts

include discussions on efforts that can secure each state's sovereignty. With state sovereignty

being prioritized over people's lives, the United Nations ultimately decides to leave intervention

to the state violating these rights. If and when the United Nations decides that international

intervention is needed, they do so when a state's sovereignty is at risk, or if their intervention

complements a state's sovereignty. Equally as important is the ability of the United Nations

Security Council to suspend or delegitimize a state's sovereignty, which rarely occurs.

Now that the foundational framework has been established, I will begin to analyze the

questions of compliance, intervention, and effectiveness of intervention.

While the United Nations is recognized as a global force that is capable of upholding and

protecting human rights; such as the right to health, life, safety, food, and more, it lacks the

power to prevent, stop, or prosecute human rights violations. For instance, the General Assembly

can vote on resolutions, yet since they are not legally binding, even if a resolution has a majority

vote it is not enforceable. A contemporary example is on the 12th of December the United

Nations General Assembly voted in favor of an immediate humanitarian ceasefire in Gaza, yet

because it is not legally binding, Israel is not obligated to follow the resolution.

In contrast, the United Nations Security Council does have the ability to authorize

enforcement actions, prevent and punish human rights violations, and more. However, as Walling

notes humanitarian intervention remains a rare and selective event. The Commission of Inquiry

on Darfur showcases that when the United Nations Security Council sent various entities to

investigate human rights abuses and found the Sudanese government complicit, they
recommended that Sudan take the initiative to promote and protect human rights. The United

Nations did not want to overstep boundaries on state sovereignty, yet I find that in this case, it

was important to interrupt state sovereignty. Leaving the government that violated human rights

with the task of promoting human rights, is a failure to protect the lives of the people. Especially

when the violence and killing of civilians continued despite UN bodies being in Darfur. This

prompts a crucial question, if the violence continued with their presence, how can we trust that

Sudan would uphold peace in their absence?

The discussion on whether intervention contributes to abuses or promotes human rights

lies within the complex dynamic of the Security Council. For example, in the Gaza genocide, the

Security Council met to discuss and vote on an immediate ceasefire, only for the U.S. to use its

power as a permanent member, to veto the resolution. When sovereign states are given more

power and leverage over the other sovereign states it is nearly impossible to make sure there is

compliance with humanitarian and human rights laws. States self-interest whether in allies,

resources, or power - impedes not only the protection of people but in the distribution of

palliative care and prosecution.

Walling further argues that humanitarian intervention is most likely to occur when

Security Council members classify mass killings as a threat to international peace or government

leaders as illegitimate sovereign actors. While the United Nations in theory can enforce and

ensure compliance with international human rights and humanitarian laws, little to nothing

happens. Koh emphasizes that states need to interact, interpret in good faith, and internalize laws

- however, this remains a distant reality.

In light of these complexities, it’s evident that catastrophic violations of human rights and

humanitarian laws occur and are encouraged by the inability of the United Nations to agree on
doing something. Even humanitarian intervention in palliative care, as argued by Mills, keeps

people alive until they succumb to direct death from armed conflict, or indirect death through

diseases and illnesses acquired during the conflict; as seen in the “humanitarian pause” that

occurred in Gaza. Consequently, humanitarian organizations, despite noble intentions, contribute

to human rights abuses, more than they promote human rights.

In conclusion, through the insights of Koh, Mills, and Walling, I’ve been able to analyze

and dissect the intervention efforts of international agencies as well as the shortcomings of

compliance. Persistent challenges arise in the prioritization of state sovereignty and self-interest

which prevent thorough implementation of humanitarian and human rights laws. The case of

Darfur highlights that challenge when the Commission tried to intervene while protecting

Sudan’s sovereignty. The discrepancy between theory and practice of humanitarian and human

rights laws is what contributes to the continuation of human rights abuses. Ultimately, to address

challenges of compliance, intervention, and promoting human rights - the United Nations must

come to terms with when they must overrule state sovereignty - especially if it protects the lives

of civilians.