peacebuilding and use of force

peacebuilding and use of force

Overview

Unit 7 marks the beginning of the portion of the course looking at cross cutting themes. In this unit we will look at human rights and international humanitarian law. International human rights have become increasingly important in the international arena and are pushing the boundaries of international law. In this unit some of the basic concepts are explored.

The general objective is to be able to apply concepts of international law discussed thus far in this course, particularly looking at the emergence of human rights discourse internationally. Under the heading of humanitarian law, we look at peacebuilding and use of force. We will look at the use of sanctions within the international community and how these are shifting in our new digital and globalized world. Some of the key areas of exploration include the history of the law of wars, the solidification of jus cogen norms and the description of the continuum of sanctions used in international relations.

Lecture 1 – Human Rights

This is a lecture using a theoretical framework in Cassel, D. (2004). The Globalization of Human Rights: Consciousness, Law and Reality. Northwestern University Journal of International Human Rights. 2(1).

Cassell (2004) holds that the international legal boundary between States, rights and human rights is not fixed. The Permanent Court of International Justice (PCIJ) recognized that the question of whether a certain matter is within the sole jurisdiction of a State is relative in this sense:

i). that it depends on the development of international relations;

ii). that this depends on international relations concerning both sovereignty and the various aspects of ‘ State rights’;

iii). and that this paradigm has developed very recently and rapidly.

International human rights law, limits state sovereignty. It restricts how governments may treat their own citizens within their borders and their jurisdiction.

Cassell (2004) asks, if there has been an explosive growth of international human-rights law, what has happened to state sovereignty and to what extent does sovereignty shield States from international human rights norms and any possible enforcement.

The way that this analytical theoretical paradigm arises in international law is through an opinion of the PCIJ. It had recognized that ‘the question of whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations’ (PCIJ, 1923, Series B, No.4, P.24).

In the last few decades, international relations concerning both sovereignty and rights have developed rapidly. Yet there is no single internationally recognized definition of sovereignty.

For the purpose of human rights, sovereignty, according to Cassell (2004), is defined from both international and domestic perspectives. Is it possible to say that human rights has to become a transnational issue, almost with international revolutionary force at the level of individuals in 193 countries of the world (like an international workers union), rather than simply an acknowledgement of being a universal innate right with which we are all born with?

Cassel (2004) holds that sovereignty may be visible in these forms:

1. the right of a State to rule itself, govern itself and those who live in its territory;
2. to choose its constitution, form of government and economic system;
3. to write and enforce its own laws;
4. to exercise a territorial monopoly on publicly sanctioned use of force through its police and military;
5. to set its own taxes and allocate spending of revenues;
6. exercise police powers to regulate the economy & society;
7. enter into agreements with other States, governments, and international organizations.

In addressing human rights law, the most crucial element of sovereignty is the right of a State to treat its citizens within its borders as it sees fit, free of outside intervention. Early 20^th century – the rule was – according to Oppenheim (1905) ‘a States authority to treat its subjects according to its discretion’ (cited in Cassel, 2004).

The State has the sovereign right to become less sovereign. To give up a tiny portion of sovereignty as in the case of trade, environmental regulations, civil aviation, law of the sea, use of rivers – by becoming party to treaties regulating domestic jurisdiction. This is akin to bargaining chips to negotiate for military and economic alliances.

Is there a contradiction in that, international human rights law attempts to impose norms that are universal yet subject to cultural relativist arguments (e.g. western vs. eastern arguments)? Further these norms may also be at odds with the formal legal principle of state sovereignty. These international human rights social norms and human rights legal norms are supposed to define and address how a State should treat its own citizens. Looking historically to, for instance, the history of race relations and slavery in the USA, the treatment of the First Nations by foreign invaders, apartheid in South Africa, the caste system in India, the Holocaust in Europe, we see that governments have entitled themselves to treat their citizens in such horrendous ways.

Lecture 2 – Duty of States for the Individual

The Individual in International Human Rights

The following lecture draws on the book: DeLaet, D. (2014). The Global Struggle for Human Rights: Universal Principles in World Politics. 2nd Ed. Belmont, CA: Wadsworth Publishing.

“Whose story best conveys the importance of human rights?” (p.1)

• The story of the Bosnian Muslim prisoner who was ordered by Dusko Tadic, a Serbian guard at the Omarska concentration camp, to bite off the testicles of another Bosnian Muslim prisoner? Or the story of the man who was mutilated in this case?
• Could we tell the story of the Zarian prisoner who was held incommunicado and beaten almost every other day for six months in the late 70s on the charge that he had insulted President Mobotu by saying that another prisoner had been beaten and tortured.
• Perhaps the story of the poor Indonesian man who lives with his wife and two children on blankets between two sets of urban railway tracks in Jakarta, literally inches away from fast moving trains, whose legs were severed in a tragic train accident.
• Could we begin with the story of seventeen year old Fauziya who fled Togo to escape forced polygamous marriage and forced mutilation only to end up in the American detention system where she faced inhuman conditions, abusive mistreatment, degradation, and despair. Or the story of the young, starving Sudanese girl who was so close to death as she literally dragged her body to a feeding center that she was stalked by a vulture.”

DeLaet (2014) articulates the divide between the rhetoric of international human rights law and the reality of practice. Torture, political repression, genocide, abject poverty, discrimination, and inequality that have become a standard feature of life for many human beings throughout this century, before and after the cold war.

She also discusses the relevance of the continuous paradoxical tension between state sovereignty and universal human rights fulfillment. In 1993 all of the States of the world sent representatives to Vienna for a world conference on human rights. This participation was unprecedented. The resulting Vienna Declaration affirms:

“… that the human person is the central subject of human rights and fundamental freedoms, and consequentially should be the principal beneficiary of these rights and freedoms.”

Section 1(5) While the significance of national, regional particularities and various historical, cultural, religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic, cultural systems, to promote and protect all human rights and fundamental freedoms.

The fact that all states of the world participated in the conference that produced such unequivocal language about the nature of human rights suggests that the meaning of human rights is beyond controversy.

Lecture 3 – Vienna Declaration

In June 1993 a World Conference on Human Rights was held. It was attended by almost all of the States in the world. They adopted the Vienna Declaration and Program of Action. During the conference there was an attack on human rights norms and the Vienna Declaration of 1993.

The Declaration contains a principle explicitly concerning the universality of human rights and its relation to cultural relativism. Early drafts of this provision suggested the inclusion of national and regional particularities, while at the same time suggested that any reference to regional particularities could be modified.

This was supported by Sweden, Chile, the UK and the Netherlands. Other States such as Indonesia, Egypt, and Bangladesh, wanted to strengthen the reference to particularities. In support of these latter proposals Bangladesh, for example, specifically betrayed its anti-human rights agenda: it said that the rights of individuals and duties of States should be balanced with the rights of states and duties of individuals. At the end all of these suggestions were rejected and the following principle was adopted by all the States members of the international community:

All human rights are universal, indivisible, and inter-dependent and inter-related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

(A/CONF.157/23, 12 July 1993 Part 1,para 5)

All human rights are universal, indivisible, and inter-dependent and inter-related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

(A/CONF.157/23, 12 July 1993 Part 1,para 5)

Lecture 4- Use of force

ARMED CONFLICTS

International law aims to control the use of force. There is a distinction between legitimate use of force and illegitimate use of force. Prohibition on the use of force remains the general rule with the exceptions admitted by international law.

However, this has not always been the case. Let’s look at the law up until 1945. In earliest history a ‘just’ war was regarded as a legitimate use of force. St. Augustine who lived from 354 to 430 articulated the concept of a just war as one designed to avenge injuries which had been sustained and which ‘the nation or city against which war like action is to be directed has neglected either to punish wrongs committed by its own citizens or to restore what has been unjustly taken by it’. The just war was founded in theological doctrine. The right to use force was recognized as an inherent right of every independent sovereign nation State.

International law placed no restraints on the use of force. Factors other than legal considerations obviously would affect a State’s ability to resort to force and the use of force was seen as a legitimate action for any State to adopt.

According to the doctrine of the just war, a State had a right to employ force against another State wherever or not it was just to do so. An example of the just use of force is the inherent right of a State to resort to force to defend itself from an armed attack.

In classic international law, any infringement of a State’s sovereign rights, such as invasion of its territory, injury to its nationals or threats to its political integrity or independence would be grounds for the injured State to respond with the use of force.

An obvious problem with the just war doctrine is that while natural law theorists, including Grotius (the father of international law), thought that natural justice was clear to everyone, in fact people’s ideas of justice, and their judgment as to whether their rights have been infringed, are often, if not always, subjective.

The practical problem therefore, was that the doctrine of the just war easily led to a serious escalation of violence. The reason that such a doctrine was used at all was because there was no multilateral forum wherein States could resolve disputes on a peaceful basis without the use of force.

The First World War prompted States to establish an international forum in which States could discuss their problems in order to reduce the possibility of resorting to force. That is how, the League of Nations came into being. The Covenant of the League did not abolish war in 1919, but rather, it put limitations on the use of force.

Before we turn to the mechanisms established under the UN Charter to deal with aggression and armed conflict, it would be useful to survey the international law between the two world wars.

The Congress of Vienna was really the first effective system representing a balance of power in Europe which was able to ensure a stable peace. And the League of Nations, set up following the end of the First World War, was even more structured in that it resulted in the creation of the first all-purpose international organization that had, as its primary goal, the maintenance of international peace and security.

The system of collective security is simple in concept but full of potential as an operative principle of international law. In essence, the principle is that an illegal attack by one State against the territory of another constitutes an attack against all. In other words, the other States of the international community agree to join together to repel an aggressor. In fact, we saw a very good example of this beginning in 1990 when the UN Security Council Security Council adopted resolution 660 condemning the Iraqi government for illegal aggression against the territory and people of Kuwait. They later initiated the United Nations Iraq-Kuwait Observation Mission (UNIKOM).

In 1928, there was a very symbolic agreement signed by 63 members of the international community, which was almost all States legally recognized at the time. This was the Kellogg-Briand Pact, also known as the Pact of Paris. The treaty declares that all States-signatories denounce the use of force in international relations as an instrument of national policy. It is symbolic in that this was the first general treaty outlawing war.

However, while the Kellogg-Briand Pact was very symbolic, it was not terribly effective. Only eleven years after this treaty was signed, there was World War II – a war that took an unprecedented toll in human lives and property. Aside from the 1928 Kellogg-Briand Pact, and the Covenant of the League of Nations (which set certain limits on the use of force, but did not outlaw war), there was very little in international law that effectively prohibited or controlled the illegitimate use of force in international relations.

All that we have talked about so far has concerned the jus ad bellum. This Latin term refers to the right to use force, that is when can force be legally used under international law, or the laws governing the right to enter into war.

There is another branch of international law that is jus in bello. This refers to what are the rights of a State and other actors, once war has started. In other words, it may be illegal to start a war. However, if a war has begun, international law does not cease to apply altogether. To the contrary, it is the rules of jus in bello which would then apply.

The jus in bello rule harks back to medieval times when members of the knighthood agreed to abide by certain rules of warfare so that battles might be honourably fought. For example, there is a universally recognized rule, that it is absolutely prohibited for a soldier to poison a well. Similarly, there have been rules that date back to medieval times concerning the kinds of weapons that may be used. The idea was that battles may be won or lost, but unnecessary suffering should be minimized.This idea is perhaps antiquated as there are few knighthood orders left, however, the Order of Malta and a few others still exist, based upon international humanitarian law.

After witnessing the immense carnage and suffering that was brought about by a particularly bloody battle on the plains of Solferino, Henry Dunant, a Swiss, decided that something had to be done to make war less inhumane. Perhaps outlawing war might be utopian. However, if war could not be stopped, at least human suffering from war could perhaps be lessened. It was Dunant’s work that inspired the first Geneva Convention (1864) and the creation of the International Committee of the Red Cross.

Thus there is a stream of international law called international humanitarian law that provides quite detailed and precise rules as to how war is to be waged. It covers what kinds of weapons may be used, how prisoners of war are to be treated, and how civilian targets must not be subject to attack.