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Jurisprudence of Human Rights Violations and the “Responsibility to Protect” Doctrine by Kavya BS

The Author: Kavya BS is a Law Student Studying at Bangalore Institute of Legal Studies, Bangalore

INTRODUCTION

The nineteenth and twentieth century has been an era of wars and revolutions, that of Industrialization, Colonization, and the World wars. It wouldn’t be wrong to say that the world changed significantly during this period. Not just did the political system, individual lives were affected to a great extent. The social and educational system saw an upheaval. Nevertheless insecurity towards violation of natural rights had become severe. Fear, deaths and exploitation was rampant. The concept of human rights finds its authority in such a back drop. Franklin. D Roosevelt introduced the Four Freedoms that people everywhere in the world ought to enjoy in his 1941 State of Union address: Freedom from fear, Freedom from want, Freedom of speech, and of religion. [1] Subsequently, The United Nations was established on 24th October 1945 with an objective to establish peace and prevent wars in future and reaffirm faith in fundamental human rights. The first session of the General Assembly in 1946 drafting of an international bill of rights was taken in to consideration by Eleanor Roosevelt, widow of American President Franklin D Roosevelt who chaired the UN Human rights Commission. The bill was later named as the Universal Declaration of Human Rights which specifically defines the rights that every individual should be able to enjoy naturally and is the foundational document approved by all the members of the General Assembly, inculcating the preamble of the United Nations in its essence.

It is the opinion of many that human rights are but a set of universal moral rights. And that “the law makes universal moral rights human rights, either by recognizing them as legal rights or by creating them in recognition of certain fundamental universal moral interests. It is significant to notice that it acquires a legal character when the universal moral rights that become human rights create moral duties on institutions, and hence for the law as well, to protect and recognize human rights. This understanding of legal and moral human rights is one of mutuality that goes beyond the traditional understanding of translation of moral rights to legal rights.”[2] Various treaties and bill of rights are but rules of conduct prescribing what to do and what not to do. Those whose conduct a rule governs are duty bearers and those to whom the duty bearers are not to do something or are to do something are right holders. Such rights and duties may be conferred by reason that it is 1) has been legislated, so to speak, by god; 2) warranted by “reason”; 3) protected in the legal system of one’s country 4) listed in a treaty to which one’s country is a party. [3] But these principles of universal moral human rights are widely diversified and cannot be recognized as one whole. For example, the right of Freedom of religion may be recognized in a country like India, and not in Saudi Arabia. Freedom to die with dignity-Euthanasia may be accepted by some countries and not by others.

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By yet another perspective, the law of human rights incorporates just exactly the essence of establishing a legal system in any society. Although many argue that these are imaginary rights that can be easily defeated by legislation, if observed keenly, it goes parallel with the notion of what “justice” is: nobody is above the law. All human beings are born with certain rights which cannot be alienated by anybody under any circumstance; those of right to life, right to equality against discrimination on basis of gender, race, caste and creed are some examples. For a primitive society, the need for establishing a legal system arose to establish an order and justice among the subjects of that society, the concept of rights and duties gradually began to gain emphasis. Similarly when there is chaos and disorder in any country to such an extent that basic humanitarian rights are not respected the International Law places upon the Government of such a state an obligation to protect such rights and safeguard the subjects of that country.

The history of protection of human rights can be traced back up to the civilization of Babylon, with the Law Code of Hammurabi created by the Babylonian king Hammurabi in the eighteenth century BC, the Hindu Vedas and The Magna Carta of 1215, officially recognized as the starting point of the history of human rights. It stated “To none will we sell, to none deny or delay right or justice. No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed….save by lawful judgment of his peers or by the law of the land.”[4]

The Concept of State Responsibility to Protection of Human Rights within its territory.

History of civilizations and revolutions has added for the international law to emphasize that on the primary obligation of a state to regulate and protect human rights within its territory. As Eleanor Roosevelt, once said, “Where after all, do universal human rights begin? In small places…close to home.” [5]The passing of Universal Declaration of Human Rights (UDHR), and two binding treaties-International Covenant on Civil and Political Rights (ICCPR)and International Covenant  on Economic, Social and cultural Rights ( ICESCR) together are called the International Bill of Rights, was seen to be the beginning of limitation of absolute and arbitrary power of the sovereign. The UDHR is the world’s most translated document to about 360 languages.[6] The UN Human Rights Council created by resolution 60/251 of the UN General Assembly  has the responsibility to promote universal respect for the protection of human rights and fundamental freedoms for all. Its working mechanism includes the Universal Periodic Review (UPR) which is the Council’s assessment at regular intervals of human rights record of all UN members; various issues and country-situations are also discussed. It also embodies the Office of High Commissioner which assists governments and civil society in their effort to protect and promote human rights. [7]

Wars and the conquest for superiority, with atrocities following them have existed since the time of beginning of society and are legal till this day. Theoretically, in an international scenario, when a particular government has violated the norms of human rights and has failed for any reason whatsoever in their protection, an obligation rests on the shoulders of the international community as a whole to prevent such violations and brutalities from happening.                        The committee on Economic, Social and Cultural Rights has emphasized on this obligation of the international community and stated that it does not carry a restriction on territory or jurisdiction. It is also important that states acting extraterritorially to protect human rights must not interfere with the implementation of human rights obligation of the victim state.[8] Intervention on humanitarian basis will be discussed at a later stage in this essay.

Discharge of this obligation however is no less than a herculean task given the variety of states, their sovereignty, and customs and practices. The perception of Human Rights and its protection varies greatly with every state around the world. States as violators of Human Rights can be classified to three kinds for the purpose of this essay:

States that overlook human rights:

An essential pre requisite for membership in the UN is of being a peace-loving state and believing “in the dignity and worth of human person, in equal rights of men and women and of nations, large or small.”[9]   Nevertheless, there exist states that care not about these rights but approve certain acts which are contrary to the principles of human rights. Day in and day out one can find reports of harassment by army men on civilians in towns situated at the border, practices of Female Genital Mutilation (FGM), practice of death penalty through lethal drugs which cause great pain to the convict, war crimes in countries like Afghanistan and Iran, polio vaccinators shot dead and lots more. Though many of these countries have ratified treaties embodying protection of human rights, it largely is in the hands of that state’s executives and legislature to adopt it to the domestic judiciary. This may or may not be exercised. Article 2 of UN convention against Torture and Other Cruel, Inhuman and degrading Treatment and Punishment ( UNCAT) declares thus: No exceptional circumstances whatsoever may be invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict. Torture cannot be justified as an order from a superior officer or a public authority.[10] Pakistan has recently ratified this convention on 3rd of June, 2010 while states like Afghanistan and Israel are its members since 1987 and 1991 respectively. These are also members of other UN key treaties on human rights like the International covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political rights (ICCPR). The question arises as to how well they have been implemented. For in many of these states, the theory of Protection of Human Rights is confined to few weak Non-Governmental Organizations and Committees whose voices are either suppressed or goes unheard.

Hypocrisy of states who claim to have pretense stand on protection of human rights themselves violating the norms:

History describes many powerful states encroaching upon rights of the weaker ones leading to deadly human rights violations. On the other hand there are also states that are sophisticatedly developed and advanced, volunteering for protection of human rights across nations, but not supporting the same principle behind the curtains. One such example would be recent news where about 1000 Nazis being used by the United States of America as spies: what they called “cold war assets.” Morality was not even considered an issue for it supported the political necessity of the country then, during the 1950’s. [11] “The US is proud of its record as a leader in respecting, promoting and defending human rights and the rule of law both at home and around the world. But in the wake of 9/11 attacks we regrettably did not live up to our own values” told the acting U.S. legal advisor Mary McLeod to the 10 member U.N. Committee against Torture.[12] While it is facing charges of torture at the CIA “black sites”, of continued detention at the U.S military prison at Guantanamo Bay in Cuba, police brutality, prisoner abuse and detention of illegal immigrants. They have admitted that they crossed the line and will take responsibility for the same. But the matter is far more serious and aggravated to plainly admit the charge and be done with; innocent men were detained in the prisons, who were forcefully fed against their will by inserting a pipe through their nose to the stomach-a practice highly criticized as unethical and inhumane. Moreover many of them, who have been cleared for release, are yet undergoing deathly treatments.

States whose customs authorize human rights violations:

Where human rights violations in certain states are backed by customs, which is enforced as a law within those states, protection of those rights is at great challenge. Many countries practice judicial corporal punishment for crimes like blasphemy and adultery in the form lashes and caning, practices of honor killing, instances of throwing stones at the wronged person were brought to light to have happened in Pakistan. Though this was condemned by the Supreme Court, it has been in practice and recognized as legal within the society for a long time. This category of states can rather be called a subset of the first category of states for many of these states are also parties to key UN treaties of ICESCR and ICCPR. In fact for many people living in rural areas of states like Africa, traditional values interpreted in customary laws is the only recourse to any form of justice. Although resolutions have been passed by the UN stating “traditions shall not be invoked to justify practices contrary to human dignity and that violate international human rights law.”[13] Its effect far to be seen. It must not be ignored as a fact that some of these countries are helpless and weak politically and need support from the developed and powerful ones. And some are those where the judiciary is not independent and is a puppet in the hands of the executive.

A report by an independent body declares that about 1.6 billion people i.e.23 percent of the world’s population have no say in how they are governed and face severe consequences if they try to exercise their basic rights. Countries that come under the 2014 Human rights Risk Index are Iraq, Syria, Sudan, Nigeria, Yemen, Somalia, Democratic Republic of Congo, Afghanistan, Pakistan, and Myanmar. [14]

Right of Intervention on Humanitarian basis- “Doctrine of “Responsibility to Protect”.

This doctrine emerged after the international community miserably failed to respond to tragedies of the Rwandan genocide in 1994 and the massacre of Srebrenica in 1995. The situation demanded the international community to choose between choice to remain passive to gruesome crimes against humanity or to violate the dictate of international law of state sovereignty. UN Secretary General Kofi Annan urged the members of the General Assembly for a mechanism to better enforce international human rights laws stressing that national sovereignty must not be used as a shield for violations of people’s rights. Responsibility to Protect thus is a principle where sovereignty of a state is limited to the extent it protects its subjects from crimes against humanity. “Sovereignty no longer exclusively protects states from foreign interference; it is a charge of responsibility that holds states accountable for the welfare of their people.” [15]

The doctrine was developed as a result of four foundation documents: 1. The Report of the International Commission on Intervention and State Sovereignty 2. The Reports of the High-level Panel on Threats, challenges and Change, entitled “A More secure world: Our Shared Responsibility”; 3.The Report of the Secretary General “In Larger Freedom”; 4. The World Summit Outcome Document. Each of these documents is a symbol to the conceptual development of the Doctrine.

Secretary General, in his 2009 Report on implementing the Responsibility to Protect formulated the three pillars of Responsibility to protect as follows [16]:

  1. The state carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity, and ethnic cleansing and their incitement.
  2. The International community has the responsibility to encourage and assist states in fulfilling this responsibility.
  3. The International Community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a state is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the charter of United Nations.

In the World Summit of 2005, it was agreed by the heads of states and governments that each individual state has a responsibility to protect its populations from genocides, war crimes, ethnic cleansing, and crimes against humanity. The Secretary General seeks implementation of this principle through global-regional and sub regional partnerships with the UN. “It is often so that the neighbors, and sub regional, regional organizations have the keenest sense of when trouble is brewing in the neighborhood and of where and how the international community can be of great assistance.”[17] The principle not only places on the international community responsibility of collective action against crimes against humanity, but also a commitment to help States build capacity to protect their populations and to assist those which are under stress, before crises and conflicts break out. It is most important to note that purpose of collective action under pillar  three is not to replace the State in meeting those responsibilities but to help lay foundation for the State to reassure its responsibility to their populations under the well-established legal obligations expressed under pillar one. It seeks to promote dialogue between the countries in dispute through mediation and preventive diplomacy. Tools for implementation are those specified under Chapter VI, VII and VIII of the UN Charter. Co operation among member states is one of the most essential pre-requisite for the effective implementation of this doctrine.

Loopholes:

As ideal and perfect the doctrine might seem collective action against a state violating the rules is not a cake walk. Why would a State lend its forces to a certain inter governmental body established for the sake of maintaining  peace and order in a state alleged of violations to humanity through genocide and ethnic cleansing, do so without any interest involved in it for itself? And what if the State accused of violation is an international power, who would, dare take a stand against such powerful state? Though the customary international law obliges states to act collectively for the common good of the world as a whole, in practice it seems too good to come true. Moreover the doctrine is not approved by many countries across the world due to the fact that “it perpetuates an unequal world order, dominated by subjective Security Council with a differential system of international law geared towards the strong.”[18]

Another weak nerve of the doctrine is that it in spite of its enforcement since 2005, it has not been applied to wide number of situation across the world but only in the instance of Darfur and Kenya wherein in a disputed election and an ethnic conflict, the international community intervened and bilateral and regional mediation effort was led by the Secretary General. For example U.S Military force was deployed invoking “The Responsibility to Protect” against insurgents in Libya whereas in Syria more grave atrocities were committed by the government on its citizens, the same strength could not be gathered. One of the reasons being, failure to pass a strong resolution in the Security Council as Russia and China best allies of Syria vetoed on the ground that diplomatic talks were being held with Syria.[19] Another recent example would be Turkey’s refusal to fight Islamic State (IS) by allowing Iraqi Kurds to use its territory to reinforce Kobane. Turkey considers both the Kurdish and IS as “terrorists”. [20]These situations are but the sad demise of the Doctrine. It is doubted by many that if R2P is stripped down to mediation and pacific settlement of disputes how does it differ at all to Chapter VI of the UN Charter. That is to say, what distinguishes the doctrine from the UN Charter is its feature of military intervention with or without the consent of the other State but back by Security Council which can be largely politically oriented. There is need for clearer strategy covering up the said loopholes for best implementation of this doctrine of Responsibility to Protect.

In Conclusion, every human being has a right to happiness and every state has a duty towards welfare of its subjects. It is the order of nature. Human rights are not fictitious rights but are those whose recognition is an essentiality to any state that calls itself civilized. Concluding treaties and drafting of declarations alone would not suffice in keeping a check on human rights violations, doctrines of retributive character with effective strategies are a requirement which can keep a check on all nations alike.

    END NOTES

  1. Roosevelt’s Four Freedoms, Human Rights in the US and International Community

https://www.unlhumanrights.org/01/0102/0102_13

  1. SAMANTHA BESSON, Chap 2: Justifications in INTERNATIONAL HUMAN RIGHTS LAW, Oxford University Press, 40 ( Edited by Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran ed., 2014)
  2. J.PERRY, in The Morality of Human rights, Emory University School of Law

https:// www.papers.ssrn.com/sol3/papers.cfm?abstract_id=2274381

  1. ED BATES, Chap 1: History in INTERNATIONAL HUMAN RIGHTS LAW, Oxford University Press, 16 ( Edited by Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran ed., 2014)
  2. NAVANETHAM PILLAY, Giving Effect to Rights: Mechanisms and Responsibilities in INTERNATIONAL HUMAN RIGHTS LAW, Oxford University Press,5( Edited by Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran ed., 2014)
  3. ANTOON DE BAETS in The Impact of the Universal Declaration of Human Rights on the Study of history Wesleyan University, https://www.inth,ugent.be/wp-content/uploads/2012/15/imaoct-UDHR .pdf
  4. NAVANETHAM PILLAY, Giving Effect to Rights: Mechanisms and Responsibilities in INTERNATIONAL HUMAN RIGHTS LAW, Oxford University Press,5( Edited by Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran ed., 2014)
  5. State’s Obligations to Respect and Protect Human rights abroad-2011 on  https:// escr-net.org/docs/i/1501003
  6. Charter of the United Nations, chap II Membership, art 4
  7. A/RES/39/46 on https:// un.org/documents/ga/res/39/a39r046.htm
  8. Eric Lichtblau, ‘ S used 1000 Nazis as Cold War “assets”, THE HINDU , October 28, 2014, International News
  9. AFP, “ S admits to “ crossing the line” on torture” THE HINDU, November 13, 2014, International News
  10. GRAEME REID, in “The Trouble with Tradition. When “values” trample over rights.” On https:// m.hrw.org/world-report/2013/essays/trouble-tradition
  11. “The Richest” on https:// www. therichest.com/rich-list/poorest-list/10-countries-that-ignore-human-rights/?view=all
  12. OFFICE OF THE SPECIAL ADVISOR ON THE PREVENTION OF GENOCIDE, “The Responsibility to protect” on https:// un.org/en/preventgenocide/adviser/responsibility.shtml
  13. Ibid
  14. A/65/877-S2011/393 https:// un.org/en/preventgenocide/adviser/responsibility.shtml
  15. Silva .D. Kantareva“ The Responsibility to Protect: Issues of Legal Formulation and Practical Application”, J. Hum. Rts. L. 1(2011-12), page 13
  16. Steven Groves, “ There is no “responsibility to Protect” Syrian Civilians” in https:// dailysignal.com/2014/10/15/Responsibility-preotect-syrian-civilians
  17. ISIS-Kurdish fights stirs trouble in Turkey.” In edition-cnn.com/2014/10/20/world/meast/turkey-isis

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