Home Random Page


CATEGORIES:

BiologyChemistryConstructionCultureEcologyEconomyElectronicsFinanceGeographyHistoryInformaticsLawMathematicsMechanicsMedicineOtherPedagogyPhilosophyPhysicsPolicyPsychologySociologySportTourism






Challenges in Applying HR to Armed Conflicts

Mo Bleeker

Challenges to the Implementation of Transitional Justice

- 1996 peace agreements in Guatemala – “pacification” in Central America

- Referendum- principles of agreements are not included in the Constitution due to lack of political will – TJ failed – violence continues

- Key aspects of DwtP: local appropriation, new leadership, multiple mediations, external actors, the role of victims and certain aspects of reconciliation.

- Local appropriation & new leadership: wide sectors of society involved in peace talks

- Former leaders still remain, new ones are still to emerge; lack of creative leaders hinders development

- TJ is a contentious matter: a) can be a field for constructive dialogue; a) can generate violent tensions if lack of legitimacy and technical means to implement TJ

- Mediations with civil society after signing of peace agreements are indispensable for their implementations

- External help to train national leaders (and keep a gender balance! ;) )

- Victims should be direct participants of TJ implementation

- Ensure technical support for their participation

- Victims in TJ: survivors à citizen survivors à rehabilitated citizens whose rights are restored

- TJ as a toll of reconciliation: should avoid establishment of justice of the victors

- Standards of peacebuilding - human rights, the rule of law and the idea of civil participation

- four main pillars of TJ: establishing the facts, justice, reparations, and institutional reforms

- balance between these measures + focus on rehabilitation, not punitive measures

- Fact-finding mission: expose the guilty system, separate those responsible for major crimes from regular combatants not guilty

- Veterans need as much support as victims

- TJ usually happens in poor countries, therefore the question whether to finance economy or e.g. compensations. Both should be also sponsored by international community

- Conclusion: reconciliation and TJ should involve all social groups; everyone should express publicly.

 

 

Noam Lubell

Challenges in Applying HR to Armed Conflicts

- ICJ Advisory Opinion on Nuclear Weapons: HR law is applied in AC (lex specialis – IHL- substitutes HR law?)

- ICJ opinion on the Palestine Wall & HR bodies: HR law is at times directly applied in AC

- most notably IHL and HR law complement each other in cases of deprivation of liberty & judicial guarantees

- most problematic issues of applicability of HR

a) Extraterritorial application of HR:

- applies to all AC? International AC – does jurisdiction extends to acts outside the state?

- effective control à existence of obligations (case law (Loizidou v. Turkey, Al Skeini) )

- detentionà obligations (HRC formula: protect everyone within the power or effective control of State, even if not within its territory)

- state agents are obliged to respect HR but the scope will be narrower



- however,content of the rights should be interpreted under IHL in case of AC

- what constitutes effective control (Bancovic case)? how to define it where battles are still ongoing? Battlefield – no obligations; person removed from battlefield in a detention facility is within the power of State?

- HR law as customary IL – argument in favor of extraterritorial obligation (US Operational Law Handbook clearly accepts that US forces can be bound by customary HR law in extraterritorial operations)

b) Mandate & expertise of HR bodies:

- limited to violations under specific HR treaties

- but most treaties contain references to other law, mostly on derogations (Tablada case: the Inter-American commission referred to IHL, because HR law didn’t give enough tools to solve the case)

- however, no mandate to make a direct use of IHL

- European system: IHL to interpret concrete situations without naming them

- UN charter bodies are more flexible in referring to IHL (eg. Special Rapporteur reports)

- Isayeva v Russia: the Court referred to HR law rather than IHL (was target legitimate as under HR law v. evaluation of risks as under IHL). Referred because of lack of relevant rules in IHL concerning non-international AC

- Communication breakdown between HR law and IHL (“proportionality”, “judicial guarantees” – “prohibition of torture”)

c) Non-international AC

- IHL treaty law is pretty sparse à more use of HR law

- ICRC study – rules applicable to non-int. AC and intern. AC are the same

- The main issue about IHL – how to establish whether there’s a non-int. AC

- lack of consensus over determination of threshold, coupled with the uncertainties on individual status, could make it easier for States to disregard the standards of human rights law and law enforcement

- Possible solutions: a) HR should prevail. Counter-argument – intensivity of domestic conflicts; b) Threshold between domestic AC according to the level of their intensivity – the more intensive, the less HR law. Counter-argument: non-State actors would not have obligations under IHL in case of less intensive AC

d) Economic, social and cultural rights during AC

- ICJ Advisory Opinion: ESCR are applicable to AC where IHL is applicable

- HR law contains ESCR rights that are in no way fall under regulation of IHL, thus in theory they should be in force

- In ESCR instruments there are no procedures of derogations

- In practice, difficult to implement those rights

AL Skeini Case

- Case before the UK House of Lords concerns extraterritorial application of HR law, particularly, ECHR

- 5 civilians shot dead in the course of patrol operations; 6th was arrested and died at the UK military base

- UK is claimed to have failed to conduct independent investigations

- UK argued lack of jurisdiction on the territory of another State

- Narrow interpretation à double standards of conduct

- Control/authority over an individual – also exercise of jurisdiction à obligations under HR instruments

- Practice of HR bodies – Inter-American Commission, African Commission, HR Committee – in favour of universality of HR - extraterritorial application

- the interveners (claimants) argued that military occupations create the strong presumption that individuals in the occupied territories are under the control, authority or power of the occupying state, and that their right to life must be respected

- Court finds that UK is in violation in the case of detainee but not in the case of 5 shot civilians (lack of effective control à referred to the Bankovic case, however, acknowledging that ECtHR practice doesn’t speak in one voice).

 

 

Bilkova

R2P

- 2001 establishment of R2P

- 3 stages of relationship between R2P and humanitarian intervention (HI): a) inclusion of HI into R2P; b) coexistence; c) exclusion of HI from R2P

- HI - the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights

- HI can be collective and unilateral

- Before 19th century – concept of just war (jus ad bellum requirements: just cause, legitimate authority, exhaust of non-violent means, right intentions + jus in bellum: proportionality and necessity)

- 19th century – birth of the term HI: to protect own citizens or people of the same nationality, ethnicity, religion

- No regulation under IL

- In the 20th century HI wasn’t legalized to prevent abuse (Japan in China, Italy in Ethiopia, Germany in Czechoslovakia)

- Actions of Vietnam in Cambodia, Tanzania in Uganda justified as self-defense but not HI

- 1990s (HI into R2P) - UN – “responsibility to maintain peace and security”, however sometimes UN SC failed to act

- 2000s – International Commission on Intervention and State Sovereignty; report – concept of R2P (R to protect à Resp to protect)

- Criteria for the use of force taken from the classical just war doctrine and include just cause, legitimate authority, right intention, last resort, proportional means and reasonable prospects

- Legitimate authority: when the UN SecCoun is unable/unwilling to act, other parties can step in

- Mid 2000s (coexistence) – World Summit Outcome Document: R2P is endorsed

- The Doc neither endorses, nor prohibits HI; no direct reference to the UoF

- Unilateral Hi is out of the scope of the Doc – legality is in question

- Late 2000s (indirect exclusion) – 2006 UN SC Resolution on protection of civilians in armed conflicts referred to the Outcome Document on R2P

- 2009 UN GA Debate on R2P revealed that the absolute majority of states support replacement of the discredited HI by R2P

- R2P makes emphasis to preventive thinking and collective action (spread of democracy)

- structural prevention becomes “everything for everyone” 31 and consequently risks turning into “nothing for no one”

- the concept of R2P puts too much faith in the effectiveness of collective security mechanism (if the SC fails to act and the international community does so, what is left?)

- emphasis to structural prevention and to obligation of the territorial state weakens the capacity to react on massive HR abuses/ man-made humanitarian crises

 

 

Harold Koh


Date: 2016-03-03; view: 901


<== previous page | next page ==>
Colloquial (Conversational) Style. | Syria and the Law of Humanitarian Intervention
doclecture.net - lectures - 2014-2024 year. Copyright infringement or personal data (0.008 sec.)