Unit 4D International law, human rights and humanitarian intervention

INTERNATIONAL LAW: HUMAN RIGHTS & HUMANITARIAN INTERVENTION

  • Bentham 1780 – International Law is the customs and laws observed between nations
  • World law   – Corbett (1956) – System of genuine global government-Vague, Utopian and Idealistic
  • However a system of global law has been developing under the ICJ (International Court of Justice)
  • Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
  • ICJ – pacta sunt servanda – Pact should serve – treaty obligations should be observed
  • rebus sic stantibus – repudiation under force majeure, state parties are entitled to do this.
  • Treaties, custom, reason, authority – 4 means by which the ICJ seeks compliance; Growing body of international law; more state parties than ever before; increasing caseload; growing compliance – Evans and Newham – 1998 – vast majority of ICJ rulings are accepted by the losing party
  • Article 93.1 of the Statute of the Court – ipso facto all UN members are party the court
  • Article 94 the UNSC is empowered to enforce – however to date it never has.

Realist, Liberal and Critical Perspectives on International Law

  • Realist – Sceptical about the prospects for anything more than a loose collection of principles – a states should approach rather than a states must approach.
    • Nothing more than a collection of moral principles and ideas.
    • Most realists accept that international law plays a key role in the international system.
    • International law largely reflects state interests. (Claude, 1962)
    • Realists believes that the legitimate purpose of international law is to uphold the principle of state sovereignty.
  • Liberal – Positive.
    • The solution for anarchy is the establishment of a supreme legal authority
    • Liberals believe international law plays an important and constructive role in world affairs.
    • Agreements among state through law strengthens the level of trust and mutual confidence.
    • This deepens complex interdependence and promotes cooperation.
    • Critical
      • Emerged from social constructivism, critical legal studies, and post-colonialism.
      • Political practice is shaped by political norms that are embodied in International law to structure the identities of state and their interests.
      • International law developed out of Christian and Eurocentric view of legal and political order, and therefore may not be universally accepted.
    • Nature of human rights
      • Historically, in international politics the interests of individuals, or their rights, has been seen as of less importance than the needs of the nation or the state.
      • Even today, more than seven decades after the UN’s Universal Declaration of Human Rights, the rights of the individual are easily set aside against claims of the national interest or national security.
      • Human rights are repeatedly violated across the globe with seeming impunity.
      • 1948 Universal Declaration of Human Rights (UN General Assembly);
      • fundamental, universal, indivisible and absolute rights;
      • rooted in liberal individualism – foundational equality
      • types or ‘generations’ of human rights civil and civil rights; economic, social and cultural rights; solidarity rights
      • VASAK 1977 – 1st Generation, (Civil and Political) 2nd Generation (Economic and Social) and 3rd Generation Rights (Solidarity Rights Feminist, Black Civil Rights, ecological rights, children’s rights)
      • tensions between and among rights. Are economic rights human rights?; positive and negative rights; can human rights be collective?
      • Geneva Convention – 1949
      • European Convention on Human Rights – 1950
      • Genocide Convention – 1951
      • Status of Refugees Convention – 1954
      • Racial Discrimination Convention – 1969
      • Sex Discrimination Convention – 1981
      • Torture Convention – 1975/1984
      • Convention on the Rights of Children – 1990
      • Ottawa Convention Banning Landmines – 1997
    • International/global implications of human rights
      • demands of humanity on all humanity
      • obligation of government to comply with, and further realization of, human rights;
      • setting standards for governments, e.g. in terms of aid and trade policies and possibly intervention
      • Normative Implications – Responsibility to protect (R2P); Spreading human rights
      • Institutional Implications -United Nations (Peacekeeping missions), ICC, OSCE, EU, Council of Europe, Arab League, African Union; NGOs – War Child, Amnesty  International, Oxfam, Human Rights Watch; ICISS
      • 1950 European Convention for Protection of Human Rights and Fundamental Freedoms;
      • Strengthening of human rights regime during post-Cold War era, etc.
      • UNSC Resolutions on Afghanistan in the aftermath of 9/11 – The USA might conceivably have gained specific legal support from the Security Council for its action in Afghanistan, but in the end did not seek such a Resolution. Security Council Resolutions 1368 and 1373 simply state the broad general requirement to take action to combat international terrorism.

 

  • Article 51 of the UN Charter  – nothing impedes states from acting in their own self defence

 

    • Protecting human rights
      • tension between norm of sovereignty and norm of universal domestic standards;
      • role of international law;
      • laws of war
        • ‘war crimes’.
        • ‘crimes against humanity’
        • Genocide
        • Hague and Geneva Conventions

 

  • International Court of Justice However – The Court has a general mandate, where human rights claims and claims derived from other areas of the law may well compete and have to be reconciled. So the involvement of the ICJ in Human rights is at best intermittent
  • ICJ Cases
  • A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law
  • A complaint by Pakistan on behalf of the people of Kashmir over oppression against India and charged it with state terrorism directly continuing violations of the international law
  • A complaint by the Federal Republic of Yugoslavia against the member states of NATO regarding their actions in the Kosovan War this was denied on 15 December 2004 due to lack of jurisdiction, because the FRY was not a party to the ICJ statute at the time it made the application
  • ICJ Effectiveness
  • The ICJ has no mechanisms of enforcement and is reliant upon member states willing compliance which is not always forthcoming even if under the UN charter member states agree to accept the jurisdiction of the court
  • In 1984 the Court ruled US military Intervention in Nicaragua was unlawful and the USA simply declined the jurisdiction of the court and withdrew
  • Reason for its effectiveness
  • There is almost universal jurisdiction
  • Developing countries have been increasingly willing to refer matters to the court
  • Surprisingly, in the absence of enforcement mechanisms, losing parties often observe the decision of the court. This suggests that they see a longer term benefit of doing so against the shorter term cost of losing. 1946-1998 75 cases. From 1998-2017  – 66 cases

 

      • Ad Hoc Tribunals for Investigating ICTY ICTR –  Yugoslavia, Rwanda, Other Ad Hoc Tribunals Cambodia, Sierra Leone and East Timor
      • ICC is a complementary court, only tries cases over which it has jurisdiction and jurisdiction is complex. Complementary source of justice – national courts still supreme. Only involved if country unable or unwilling

 

  • Prosecutes those with greatest responsibility.
  • Can try cases where crimes have been committed on the territory of a party state and where the party state makes a referral – principle of complementary

 

      • They can order prison sentences up to 50 years and reparations to victims.

 

  • Cannot investigate any crime committed before 1st July  2002

 

    • Cannot try a case where a crime has been committed by a non party state, except if that state commits the crime on the territory of a party state
    • Can try a case committed anywhere by a national of a party state
    • Territory of state party or by a national citizen anywhere
    • Non party states can become party if it accepts the jurisdiction of ICC.
    • Can try a case of a crime committed anywhere if requested to do so by the UN Security Council

 

  • ICC Cases

 

      • Katanga Case – Found guilty in March 2014 as an accessory to one count of a crime against humanity (murder), and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging), sentenced 12 years imprisonment.

 

  • Charles Taylor- tried and convicted in April 2012 on 11 charges of war crimes, crimes against humanity and other serious violations of international law during the course of Sierra Leone’s Civil War
  • Jean-Pierre Bemba Gombo (2016) – the former vice president of the Democratic Republic of Congo was found guilty of acts of rape, murder, pillaging and crimes against humanity committed during the 2002 – 2003 war in the Central African Republic. 18 years imprisonment.
  • Situations

 

    • 11 current situations under investigation- 10 from Africa
    • Uganda (2004) – Alleged war crimes and crimes against humanity
    • Libya (2011) – Alleged crimes against humanity
    • Georgia (2008) – Alleged crimes against humanity and war crimes committed in the context of an international armed conflict (2008)
    • Mali – alleged war crimes since 2012

 

  • ICTY

 

    • Milosevic faced three count of crimes against humanity and one charge of violating the laws or customs of war. The most serious indictment against him related to genocide in Bosnia-Herzegovina between 1992 and 1995. Milosevic was accused of being behind the killing of thousands of Bosnian Muslims and Bosnian Croats, including the infamous massacre of civilians at Srebrenica in 1995. He died during his defence in 2006.
    • Karadic – sentenced in 2016 to 40 years imprisonment. He was found guilty of count of : Genocide, persecution , extermination, murder, deportation (crimes against humanity) for his role in the killing of Bosnian muslims.  
    • Mladic – nicknamed “the butcher of Bosnia”, military commander who ordered the murder of 8,000 Bosnian men and boys in Srebrenica. Trial began on 3rd of June 2011.

 

  • ICTR  – Sits in Tanzania

 

    • Jean Paul Akayesu sentenced to life in 2001 for crimes under Article 6(1) (individual criminal responsibility)  for role in  Rwandan Genocide – Genocide punishable by Article 2 (3) (a).
    • Paul Bisengimana sentenced to 15 years in 2006 for facilitating and aiding the murder and extermination of Tutsi civilians.
    • ECHR
  • Human rights and the ‘war on terror’
    • Tensions between combatting terror and upholding CLs – Vincent, 1986
    • Guantanamo; use of torture; ‘extraordinary rendition’; etc; balance between public safety and human rights;
    • violation of human rights a ‘lesser evil’?
  • Impact of human rights NGOs (Amnesty International, Human Rights Watch, MSF)
  • Universal rights challenged
    • western criticisms of human rights Realist Critique of humanitarian intervention – states are, and should be, self-interested; humanitarianism a pretext for pursuit of national interests; no basis in international law; prudential concerns – make things worse not better; inconsistent application of humanitarian principles
    • ‘challenging’ interventions – critical: Orford 2003 Interventionism is a tool of westernisation Chomsky – double standard (Guantanamo/ ER/ EIT) – Cultural Imperialism
    • Communitarianism  – human rights a threat to diversity and multiculturalism – imposes a universal standard
    • Feminism – The feminist critique of human rights argues that, in practice, those who hold human rights are men and not women, and that gender equality, and freedom from discrimination for women, is given a low priority in the international arena (Peters, 1995)
    • post-colonial criticisms of human rights; Islam and cultural critique of human rights  – human rights and international law came to be institutionalized in the context of European colonialism
    • Asian values as alternative to human rights;
    • human rights and ‘clash of civilizations’
  • Humanitarian intervention
    • Rise of humanitarian intervention
    • nature of humanitarian intervention;
    • early examples of humanitarian intervention Bangladesh; Cambodia
    • humanitarian intervention and the ‘new world order’ (‘liberal moment’
    • role of the media and public opinion;
    • examples: Northern Iraq, Somalia, Haiti, Kosovo, Sierra Leone,
    • impact of ‘non-interventions’ Rwanda and Bosnia on global public opinion; Srebenica massacre (8000 killed, 1995)
    • humanitarian intervention and the ‘war on terror’ Afghanistan and Iraq – but be very careful with Iraq and Afghanistan – these are not classical HI
    • Libya (R2P), Humanitarian Intervention (UNSCR 1973, preventing Gaddafi from bombing his own people)
  • Basis for humanitarian intervention
    • novel version of ‘just war’ theory protect others & ‘save strangers’ rather than self-defence – Just war- Jus ad Bellum, Jus en Bellum, Jus Post Bellum
    • human rights trump state sovereignty (liberal interventionism) – Liberal Intervention – Blair 1999 Chicago Speech
    • circumstances in which intervention is justified (based on framework of human rights; prevention of genocide, war crimes and ethnic cleansing; role of UN Security Council);
    • regional stability; democracy promotion
    • Humanitarian intervention is military intervention that is carried out in pursuit of humanitarian rather than strategic objectives.
    • To prevent ethnic cleansing (Kosovo)
    • To prevent a regime brutalising it’s own people (Iraq (but only after no WMD are found) Libya and Syria.
    • To prevent warlordism
    • To prevent Genocide (Rwanda)
    • To prevent religious conflict (Mali) French presence
  • Realist
    • Human rights are a ‘soft’ issues in international affairs.
    • ‘hard’ concerns such as pursuit of security and prosperity are paramount
    • Realists suggests that it is impossible to view international politics in moral terms.
    • Morality and national interest are two distinct things.
    • Concerned with collective behaviour, especially maximising capacity of state to ensure order and stability for their citizens.
    • National interest are more prioritize over any conception of morality.
  • Liberal
    • Human rights as a liberal doctrine.
    • Central purpose of government is to protect a set of inalienable rights (life, liberty, and property)
    • Governments become tyrannical then they fail to protect human rights.
    • States should be bound to uphold human rights in dealings with domestic population as well with other states relations.
    • 1948 UN Declaration and other multilateral institutional levers of support (OSCE; ICC; ICJ: ECHR; NGOs)
  • Critical
    • Hostile to the idea but does not reject the liberal view.
    • Human rights become a doctrine of global social justice, grounded in moral cosmopolitanism.
    • Feminists demonstrate growing interests for better account of women’s lives.
    • Human Rights often a fig leaf for intervention in a state’s self interests (Chomsky)

 

  • Criticisms of Humanitarian Intervention
  • Any violation of state sovereignty weakens the established rules of world order. Against international law, breaches the idea of state sovereignty, weakens the established rules of world order
  • Aggression has almost always been legitimised by humanitarian justification, meaning that it is difficult to distinguish between the self-interest of intervening powers and wider moral concerns
  • Military intervention often leaves matters worse, not better, or draws intervening powers into complex and difficult long-term involvement.
  • Hypocrisy – Why no intervention in Rwanda and Syria? No one got involved in Chechnya or Georgia, Crimea & East Tibet  – goes against the doctrine of humanitarian intervention  – Chinese are too powerful to challenge
  • Chomsky – Instrument of Western Imperialism
  • The double standards argument (Guantanamo, Waterboarding, Extraordinary Rendition)

 

    • HI is based on distortion – idea of simplistic image of good vs. evil but ignores the moral complexities that attend all international conflicts
    • HI can be seen as a force of cultural imperialism and that it is based on a western notion of human rights that may not be applicable in other parts of the world

Short Answer Questions

What are human rights and why do they have implications for global politics?

Distinguish between different types of international human rights.

Why has Humanitarian Intervention been criticised?

What is humanitarian intervention and why did it increase since the 1990s?

Why has the idea of universal human rights been criticised?

Explain the tensions between human rights and state sovereignty.

Assess the Effectiveness of International Law in Upholding Human Rights.

Why is the Idea of Universal Human Rights Controversial?

Why have human rights become more important in international politics?

Why does humanitarian intervention occur in some cases but not others?

Essay Questions (45 Marks)

Is humanitarian intervention ever justified?

Examiner’s comments:

  • In the most impressive cases, the arguments for and against humanitarian intervention were grounded in rival liberal and realist principles and assumptions.
  • For example, pro-humanitarian intervention arguments were often associated with universalist doctrines, notably a belief in human rights, as well as the idea that states have a duty to protect their own citizens and if this duty is not carried out, it falls on the international community at large.
  • By contrast, realists have argued that it is both inappropriate for states to act in the interests of foreign citizens and unwise for them to get involved in internal conflicts of which they have little understanding and insufficient capacity to resolve.
  • In the best cases, candidates were able to discuss humanitarian intervention in both moral and legal terms, sometimes recognising the conflicts that exist within international law between treaties and conventions that emphasise non-intervention and a growing body of customary international law that is based on human rights and humanitarian standard-setting.

To what extent are human rights effectively protected in the modern world?

  • good use was often made of the implications of state sovereignty,
  • the effectiveness of international courts and
  • the difficulty of forcing major states, such as China, Russia and the USA to comply with human rights standards,
  • particular attention sometimes being given to the ‘war on terror’.
  • However, although weaker responses understood the nature of human rights, they often failed to show an adequate understanding of how, and how effectively, human rights are protected.

To what extent is humanitarian intervention an abandoned project?

To what extent are international courts and tribunals effective in upholding human rights?

 

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