Human Rights and International Law (23): The Dilemma of Treaty Ratification Rates

1899, US Senate Ratifies Treaty of Paris

(source unknown)

In the case of human rights treaties, we face a tough choice: should we aim at universal/near-universal acceptance and ratification, or should we instead limit ourselves to the goal of “real” or meaningful acceptance and ratification? The problem with human rights treaties is that ratification is almost costless. A country can ratify them even if it has no intention of respecting their provisions, because it knows that lack of respect will not result in any serious harm. The same is not true for other types of treaties: a country ratifying a military collaboration treaty, a fishery treaty etc. knows that non-respect of the treaty provisions can lead to harmful retaliation by other treaty signatories or fines imposed by some international institution.

The relative costlessness of human rights treaties means that most if not all countries will readily accept them. They can only gain: signaling support for human rights by way of treaty ratification can even reduce outside pressure for better rights protection. After all, a country that signals willingness to respect human rights should have more leeway than a country that openly and willingly violates those rights.

Hence, near-universal ratification rates are a natural outcome in the case of human rights treaties. Some argue that instead of pursuing the commonly accepted goal of near-universal ratification of human rights treaties, we should instead aim for “real” and meaningful acceptance; in other words, acceptance only by states that do intend to implement the treaties’ provisions. States that would sign the treaties simply to signal a positive attitude towards human rights and to relieve outside pressure should therefore be excluded from ratification.

Exclusion means raising the cost of ratification – for example by way of preconditions for acceptance incorporated into the treaties or by way of effective sanctions in case of non-respect. This in turn means that treaty ratification rates will be brought down.

All of this sounds reasonable at first sight, but it does create a dilemma. Treaty ratification, even if it is at first mere signaling by an authoritarian state that doesn’t have any intention of respecting the treaty, can have beneficial effects over time. By making “fake” or “shallow” ratification more difficult we would also destroy those beneficial effects. What kind of effects am I talking about? Well, for instance, a treaty can promote a human rights culture. When a state accepts a treaty, even if only for the purpose of international signaling, it also signals, inadvertently, to its own population: it signals that human rights are becoming universal moral norms. The state therefore can’t help but increasing the legitimacy and salience of human rights, and its oppressed population can use this fact: it can wield the language of human rights in a more effective way than before, both against the state and in order to rally support.

Hence, we may see an effect of treaty ratification going in two opposite directions: shallow ratification my reduce outside pressure against the ratifying state, but may also increase inside pressure.

So it’s not obvious what we should do. Should we aim at near-universal ratification, or at meaningful ratification? Both strategies have pros and cons. Near-universal ratification may reduce the meaning of human rights – if even the worst dictator can ratify a human rights treaty without any significant cost, then human rights will lose their appeal. We may even increase the number and severity of human rights violations because states that signal adherence to human rights will see a reduction of international pressure. On the other hand, making ratification more costly will reduce the number of ratifications, which in turn will reduce the moral stature of human rights and will make it more difficult to argue that human rights are universal.

I’m not ashamed to say that I can’t see an easy way out.

More posts on this series are here. Some data on treaty ratification rates are here. More dilemmas are here.

Measuring Human Rights (28): Countries Hit Hardest by Judgments of the European Court of Human Rights

If you have a reasonably effective international court that monitors human rights violations in a number of countries, then the number and severity of judgments of this court can be used to measure respect for human rights in those countries and compare levels of respect.

The ECHR was set up in Strasbourg by the Council of Europe in 1959 to deal with violations of the 1950 European Convention on Human Rights in the 47 member European states that are members of the Council (not to be confused with the European Union). It’s probably the most effective human rights court in the world today – which doesn’t mean that all its judgments are respected. Citizens in all member states have more or less equal access to the ECHR and the court applies the human rights convention equally to all member states. So this should give a useful and internationally comparable measurement of respect for human rights, at least for this subset of 47 countries.

It’s clear from the map below which countries most commonly fall foul of the ECHR:

(source, where you can find an interactive version)

In 2011, the European Court of Human Rights found 159 violations against Turkey, 121 against Russia and 105 against Ukraine. Of 1157 judgements pronounced in 2011, the human rights violations most frequently found by the court were in the length of proceedings (341), the right to liberty and security (241) and the right to a fair trial (211).

One can expect more judgments against more populous countries, of course, but there’s no clear link between population size and number of judgments, which confirms the intuition that some European countries are more free than others.

More posts in this series are here.

Update: a more complete database is here.

Human Rights and International Law (22): The Usefulness of Retroactive Laws

Adolf Hitler in old age, by Andrzej Dragan

(source)

George Steiner, in his magnificent novel about the fate of an escaped Adolf Hitler in post-war South America, describes rights as an ontological totality, or, in other words, a reality that encompasses the whole world and all phenomena in it. Rights are not just a set of local commands, only valid in some corner of the world or at some moment in history, or only applicable to a certain class of people. It would be unacceptable to have one part of reality – either a part of the world or a part of time – that is free from the moral power of rights.

The Israeli secret agents who, in Steiner’s book, captured the old Hitler in the forests of South America rightly believed that he could be tried by their makeshift jungle court and that their present-day norms dealing with genocide and persecution could be used to judge him, even though these norms did not exist at the time when Hitler committed his crimes or in the places where he committed them.

George Steiner

Human rights are therefore an exception to the otherwise very sensible rule that laws should not be applied retroactively or “ex post facto”. Certain actions that take place in a certain country at a certain moment in time, and that are not illegal in the context of the law as it is valid in the country and at the time, may afterwards – after the facts – be judged as violations of human rights, even if human rights were not part of positive law at the time. Otherwise, a tyrannical legislator such as Hitler may make it forever impossible to judge his deeds of oppression and to punish him, even after he and his regime are defeated. We shouldn’t be willing to accept an absolute definition of the prohibition on retroactive laws that leads to impunity. If violations of human rights can only be punished according to the laws that are in force in the country in which the violations occur, and that are in force at the moment that they occur, then a bit of creative legislation will lead to total freedom of action for the most brutal dictators. And no change of regime or military defeat will ever harm them. They will have a life-long insurance against justice.

However, the prohibition on retroactive laws is an important achievement, and is even part of the internationally accepted corpus of human rights. See for example article 15 of the International Covenant on Civil and Political Rights:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.

The fact that human rights laws are an exception to the general rule is justifiable on two grounds:

• First, it would be unreasonable to require that the system of human rights contain the seeds of its own destruction. Requiring the system to incorporate an absolute prohibition on retroactive laws, one that also makes retroactive human rights laws impossible, would mean introducing one rule in the system that can undo all other human rights rules. The absolute rule on retroactive laws would allow malevolent legislators to neutralize all other human rights rules in the system.
• Second, the main rationale for the rule on retroactive laws is the fact that we must be able to know in advance whether our actions are or are not permitted by the law. Otherwise we are unable to plan our actions in a manner that is appropriate for law-abiding citizens and we run the risk of inadvertently violating the law. A law that is unknown to citizens is plainly absurd, and retroactive laws are by definition unknown before they are introduced. If laws are enacted that punish actions after they have occurred, then we risk being harmed by the unknown penal consequences of our actions, actions that we believe are legal. However, this rationale is absent in the case of human rights. Even if human rights are not part of existing law, most people will not inadvertently violate human rights. Human rights, even if they are not part of the law, are known to most citizens, and those who violate them know that even if their law allows them to do so, they can one day be held to account. Punishing someone on the basis of human rights that were not part of the law when the punishable act was committed, is clearly not the same thing as punishing someone for driving in a pedestrian zone when this zone was accessible for cars at the moment of the “infraction”.

Rights violations must always be punishable, even if the law that makes them punishable only comes into force after the violations have occurred, for example after the overthrow of a dictatorship or after the military defeat of the violators. All other acts that do not imply a violation of human rights, can only be punishable if they are a crime according to the law at the moment that these acts are committed. Generally, one cannot punish someone for an act that is not a crime and only becomes a crime afterwards, because otherwise this person is unable to know whether his act is legal or illegal and is unable to plan his actions in a way that fits a law-abiding citizen.

The exception to the general rule – this general rule being itself a particular case of the even more general rule of “nullum crimen sine lege“, no crime without a law – was introduced by the Nuremberg Tribunal.

[C]rimes against humanity were made punishable even if perpetrated in accordance with domestic laws … In so doing, it [the tribunal] indubitably applied ex post facto law; in other words it applied international law retroactively”. A. Cassese, International Law in a Divided World, p. 291-292.

[C]rimes against humanity … were defined in the Tribunal’s Charter as follows: “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”. In some respects, crimes against humanity are wider than war crimes; they can be committed before a war as well as during a war, and they can be directed against “any civilian population”, including the wrongdoing state’s own population. The prohibition of “crimes against humanity” thus constituted an exception to the old rule that a state was entitled to treat its nationals as it pleased; and it is fairly clear that this prohibition was not accepted as part of international law before 1945″. M. Akehurst, A Modern Introduction to International Law, p. 278-279.

Why do I discuss all this? The obvious temporal aspect of retroactive laws can have spatial consequences. If we are not bound by the rule on retroactive laws where human rights are concerned – which is, I admit, a somewhat stretched interpretation of the Nuremberg exception that only mentions some types of rights violation – then we can do as if human rights are law and we can always punish rights violations, even if these violations were not illegal at the moment that they were committed. We can apply this principle in a spatial dimension rather than a temporal dimension. If we can act as if human rights were law in a previous period of history in which they evidently were not law, then we can also act as if they are law in another place in the world, a place in which they are not yet part of the local law.

This way we can elude the perpetual discussions about the application of international law, about the force of human rights treaties in domestic law, about the role of reservations, about the priority or superiority of international law, about the extent to which some or all human rights are part of international customary law, about whether human rights are part of ius cogens etc. For me, this is no fundamental modification of the Nuremberg-principle, but it has far-reaching consequences. And it is not as farfetched as it may seem at first glance. Most people will agree that it would be wrong to judge someone solely by the laws of his country. Laws, after all, can be incomplete or even immoral.

(image source)

Human Rights and International Law (21): Human Rights and the Irrelevance of the Law

If you want to promote respect for human rights you’re likely to turn to the law, and not just any law: human rights are usually if not always included in constitutions and in the human rights treaties that countries have accepted. They are, in other works, part of the basic law. You hope and expect that those in charge of verifying respect for the law and enforcing this respect when it’s absent will see that the case you bring before them is a clear violation of human rights – clear on the basis of the evidence you present – and will use their legal monopoly of violence in order to force the violators to stop, to respect the law and to remedy the harm that is done to you or to those you represent. Judicial courts, including international courts, and enforcement agencies such as the police force, the military, peacekeepers and such, are believed to be the institutions that are best placed to promote respect for human rights law.

You may have many good reasons for this belief: there’s the authority of the law as a special kind of rule, stronger and more commonly accepted than rules of morality, and there’s the possibility to use violence as a means to coerce. You may also have good reasons to believe that these legal and enforcement institutions will never be perfect: there can be perjury, judges may be incapable, suspects can escape, the police may be corrupt, laws can be counterproductive etc. Still, you strongly believe that the law is the best you can hope for in a world of imperfect humans, and certainly better than self-defense or persuasion.

the activist judge

Many of us will recognize our own beliefs in this description. However, one could easily call these beliefs naive. Look at the Supreme Court in the U.S. for instance. Would there be so much bickering over the nomination of new Justices by acting Presidents, if the judicial protection of rights was the quasi-mechanical process that I just described? Or is this bickering not proof of the fact that the political affiliation of the Justices determines to a large degree their rulings? Why would the other political party systematically object to the Justices proposed by the President if the politics of those Justices don’t make a lot of difference in the way they rule? But if those politics do make a lot of difference, what is left of the credibility of the system of law as a means to enforce respect for rights?

Some of this skepticism is the basis of the theory of legal indeterminacy. This theory states that laws have nothing to do with how judicial cases come out; that lawyers and judges can manipulate laws and the legal system in order to justify any decision they please; and that any possible result in any legal dispute can be justified as the legally correct outcome. If laws do not determine or – according to a more moderate form of the theory – do not significantly constrain judicial decisions, then it’s often futile or even risky to ask a judge to rule on a supposed rights violation. You may get the result you want, but only if the judges share your moral, political or religious outlook. In the worst case, your tormentor is vindicated, which will only encourage him and others like him.

The theory of indeterminacy is corroborated by the historical shifts in rulings based on the same texts. Take for example the death penalty in the U.S., which has been ruled both constitutional and unconstitutional. Of course, the indeterminacy of the law is not always the fault of judges, lawyers or prosecutors. The legislators also have a role to play. Laws have to be clear and unequivocal.

On the other hand, it’s impossible to require strict determinacy: no law, however carefully crafted, will produce one and the same legally acceptable type of outcome over decades. There will always be so-called hard cases that require interpretation and choices. And because beliefs and opinions change over time, interpretations and choice will also change. Still, in all legal systems in the world, there seems to be much more indeterminacy than what most of us believe would be optimal.

Woodrow Wilson trying to avoid the rocky shores of "war" and "intervention" on his way to "justice"

Take another example: international criminal justice. Here as well it’s clear that the equal application of the law is just a sick joke. Security Council Resolutions – which can be seen as quasi-judicial – are notoriously inconsistent, and their application is even more inconsistent. The International Criminal Court, one of the best international legal institutions around, only manages to prosecute the worst violators in the poorest and geopolitically irrelevant parts of Africa. China merely has to hint at possible economic consequences and all human rights talk about China – let alone action against China – stops instantly. Never mind the fact that China has accepted human rights treaties. Russia is part of the Council of Europe and has therefore accepted the jurisdiction of the most powerful international human rights court in the world. And yet, we all know that human rights in Russia are far from safe. International human rights law clearly suffers from collective action problems, perverse incentives, competing priorities and double standards.

So, if it’s naive to rely only on the law, which other means do we have in order to promote respect for human rights? The two major alternatives to law are story-telling and honor. Read more about those here and here respectively.

(image source)

Human Rights Maps (168): Countries That Have Ratified the Convention on the Elimination of All Forms of Discrimination Against Women

Another sign that human rights are becoming the morality of the world:

Participation in the Convention on the Elimination of All Forms of Discrimination Against Women

However, international law may be no more than window-dressing, at least in this case. In large parts of the world, national law does not conform to the obligation of CEDAW or it’s not enforced when it conforms:

(source, click images to enlarge)

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More maps on country participation in international human rights instruments are here. More human rights maps in general are here.

Self-Defeating Human Rights Policies (7): Qaddafi and the ICC

capture of Gaddafi, video still

Another example of good intentions going wrong:

One of the many puzzles surrounding Muammar Qaddafi was his refusal to go into exile. Once NATO intervened on behalf of the rebels and Tripoli fell, Qaddafi must have known that he would eventually lose the war and that this would mean death. Instead of leaving the country, he decided to stay.

Why? One surprising answer has to do with the International Criminal Court. It used to be that exile was an attractive long-term option for dictators to take. Rather than stay and fight, they could live their lives in wealth and comfort in beautiful and stable places such as Paris or the Bahamas.

This changed as more and more countries ratified the Rome Statute of the ICC. Now seeking asylum is no longer easy or particularly attractive. Dictators can try to convince countries such as France, Britain, Venezuela, Mexico or Spain to let them settle in their capital cities or along their coastlines. But since all have ratified Rome, moving there is tantamount to turning oneself in to be prosecuted for war crimes. Qaddafi could seek refuge in countries that have not yet ratified Rome, such as the United States or Cuba or Zimbabwe or Sudan or Saudi Arabia. But those countries are either unwilling to accept him (the U.S. and Saudi Arabia) or unable to credibly commit to protecting him over time (Cuba, Zimbabwe, Sudan). How long could Qaddafi trust that the current regime in Cuba or Zimbabwe will remain in power to protect him? …

What Qaddafi’s behavior reveals is a potentially unexpected and unfortunate side-effect of an increasingly successful ICC. By limiting the options nasty dictators have to seek exile, it is increasingly forcing them to stay. And by forcing them to stay, it could, inadvertently, be encouraging war. (source)

More on the ICC here. More self-defeating human rights policies here.

Human Rights Maps (142): Countries That Have Ratified the International Convention Banning Cluster Bombs

(source)

Here’s a version that looks like it’s a bit more up-to-date:

(source, purple = ratifications, blue = signatories)

The convention,

banning the manufacture, use and stockpiling of cluster munitions, … came into force last year [2010], [and] has been signed by 108 countries and ratified by 60 of them [as of today, November 2011]. But 17 of the non-signatories continue to produce the weapons (see map below), and two have used them in conflict this year: Thailand during border clashes with Cambodia in February, and Libya under Muammar Qaddafi during the battle of Misrata in April. (source)

Cluster munition is a particularly horrible type of bomb that spreads large numbers of small bomblets over a wide area. Because of the aimlessness of the device, it poses high risks to civilians both during attacks and afterwards since many bomblets remain unexploded after they land. They kill or maim civilians long after a conflict has ended. Unexploded submunitions are costly to locate and remove. The UN estimates that 98% of victims of cluster munitions are civilians. More here.

More on the law of war, and more human rights maps.

Related Articles

• Cluster Bomb Ban Takes Effect Minus Support of Major Producers (waronterrornews.typepad.com)
• Cluster Bomb Ban Goes International Without U.S. (firedoglake.com)
• UN chief hails treaty banning cluster bombs (independent.co.uk)

Human Rights Maps (106): Countries That Have Ratified the United Nations Convention Against Torture

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There’s an optional protocol to the CAP, which provides for the establishment of “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”. The following countries have signed or ratified this protocol:

(source)

If it’s generally true that countries sign treaties because they believe in them, then we can claim that the first map shows the extent of the universal acceptance of the immorality of torture, not of course the extent of actual torture. It corroborates what I wrote before on the legal and moral universality of human rights. For a more pessimistic view of legal universality, go here.

More about the CAT is here; more on torture here; other maps on international support for human rights are here; other human rights maps are here.

Related Articles

• U.N. urges Iraq to ratify convention against torture (cnn.com)
• NGOs, CSOs task FG on criminalising torture (vanguardngr.com)
• MI5 Agents ‘At Risk’ Over Torture Guidelines (news.sky.com)

Human Rights and International Law (20): Ratifying the Convention Against Torture With the Express Purpose of Torturing Anyway

There’s an interesting paper here arguing

that torturing regimes may deliberately sign the Convention Against Torture intending to violate it, in order to signal to domestic opponents that they are so determined to hold on to power they will torture them in spite of the cost they incur for treaty violations. … “Messrs Hollyer and Rosendorff believe the intent [of signing the treaty] is to show how dedicated the regime is to maintaining power, how much it will sacrifice. But there is another possible signal: the regime shows its opponents that it knows international pressure cannot disturb its grip on power in the slightest”. (source)

[A] regime that tortures its opponents and refuses to sign the Convention Against Torture shows that it fears international opprobrium. A regime that tortures its opponents and blithely signs the Convention Against Torture anyway shows that it fears nothing. (source)

This is the proper occasion to link back to an older post of mine on the difference between normative universality and real universality. More on torture. More posts in this series.

Human Rights and International Law (19): Child Soldiers and the Rights of the Child

[This post is by guest-writer Line Løvåsen].

In 1989, the Convention on the Rights of the Child became the first legally binding international convention to affirm human rights for all children. (Although the other, older human rights treaties and declarations of course didn’t exclude children). The Convention has the highest ratification rates of all major Human Rights Treaties with signatures from 193 States. Only the US and Somalia have yet to give their backing.

The ratification of the CRC was a monumental moment in the fight for children’s rights. With the adoption of the Convention, these rights were no longer an option–they became an obligation under international law. Two Optional Protocols, seeking to strengthen the rights set out in the Convention, were adopted in 2000.

The importance of the rights of children is obvious: our solidarity should be first and foremost with the most vulnerable. Children are more likely to be victims and therefore deserve and require our special care and concern. Their capacities and voices need strengthening. They don’t have the power, education and knowledge to fight for their rights themselves.

Child soldiers

This posts examines a particularly horrendous type of violation of children’s rights: the phenomenon of child soldiers. Here’s an overview of the participation of children and adolescents in armed conflict:

Countries with Child Soldiers fighting in current and recent conflicts (g = government forces, p = paramilitaries, o = armed opposition groups) Africa: Algeria (p,o), Angola (g,o), Burundi (g,o), Chad (g), Congo-Brazzaville (g,o), Congo-Kinshasa (g,o), Eritrea (g,o), Ethiopia (g), Liberia (g,o), Rwanda (g,o), Sierra Leone (g,p,o), Somalia (g,p,o), Sudan (g,p,o), Uganda (g,o) Asia: Afghanistan (g,p,o), India (p,o), Indonesia (p,o), Myanmar (g,o), Nepal (o), Pakistan (o), Philippines (o), Solomon Islands (o), Sri Lanka (o), East Timor (p,o), Tajikistan (o), Papua New Guinea (o), Uzbekistan (o) Middle East: Iran (g,o), Iraq (g,o), Israel/Palestine (g,o), Lebanon (o) Latin America: Colombia (p,o), Mexico (p,o), Peru (o) Europe: Russian Federation (o), Turkey (o), Yugoslavia (p,o). From the Coalition to Stop the Use of Child Soldiers

In spite of the universal condemnation and prohibition on the use of children as soldiers (see for example articles 6 and 19 of the CRC), children as young as 8 continue to be enrolled in many armed forces and militant groups around the world. (There’s a map here).

Why are there child soldiers?

What drives this? Why are children recruited for warfare? First of all, the proliferation of inexpensive, lightweight weapons has made it easier to use children as soldiers. These small arms are lethal and easy to hide, transport and use with little training. (More data on the arms trade here).

Children are also relatively easy to abduct, subjugate, and manipulate. They are more impressionable and vulnerable to indoctrination, they learn skills and tasks quickly, are fast and agile on a battlefield, more willing than adults to take risks and are seen as more loyal and less threatening to adult leadership. Moreover, it is easier for children to slip through enemy lines unnoticed, making them effective spies and bomb carriers. Children are typically viewed as cheap and expendable labor; they require less food and no payment. In addition, using child soldiers can present a moral dilemma to enemies: should they kill children?

Consequences

Child soldiers are separated from their families, forced to flee their homes and schools, and in many cases, killed, maimed, sexually abused or otherwise exploited. Needless to say this has a devastating impact on their physical and mental wellbeing for the rest of their lives. They are usually forced to live under harsh conditions with insufficient food and little or no access to healthcare or education. They are almost always treated brutally, subjected to beatings and humiliating treatment. Punishments for mistakes or desertion are often very severe. They are forced to engage in hazardous activities such as laying and clearing mines or explosives, using weapons, playing the role of spies, bomb carriers, sentries and human shields.

Girl soldiers are particularly at risk of rape, sexual harassment, abuse and sexually transmitted diseases. They may give birth during their time with combatants and their children are exposed to the same dangers.

Child soldiers suffer enormous emotional, physical, developmental, social and spiritual harm.

Recruitment methods

Patterns of recruitment of children vary according to the context. Although recruitment of children by governments has been less systematic, there are reports of ad-hoc and/or forcible recruitment by groups with the acquiescence of governments such as the previous administration of the Transitional Federal Government (TFG) in Somalia.

In some instances the commanders approach the children directly and use scare tactics or entice them with money. They may also glorify freedom fighters, use gifts such as bicycles or false promises of overseas scholarships to bring the child under the control of the armed group, leaving the parents without any say. In some countries children have been told that killing the enemy is part of the Jihad, and if they die in the effort they will go to heaven. Previously recruited children are also used to recruit other children. If children resist, they are either killed, forced to participate in an assassination or put at the front line with the objective of breaking their will.

What makes children join armed forces? It’s likely to be a mix of desperation, poverty, dysfunctional schools systems, situations of extreme and traumatizing violence, the desire to take control of events, the protection offered by being at the shooting end of a gun, and peer-group pressure.

As much as we should advocate to dissuade forces from using children, the most certain way of preventing the recruitment of children is to stop civil or international conflict from occurring. As explained by a mother of three children who did not join the armed forces or groups, in Monrovia, Liberia:

If these people had not brought war, children would not have joined the fighting forces…

References

• Child Soldiers: Care and Protection of Children in Emergencies. A Field Guide, Mark Lorey, SAVE the Children Federation, 2001, Editors: Amy Hepburn and Tanya Wolfram
• Special UN Representative for Children and Armed Conflict
• Fighting Back: Child and Community-led strategies to avoid children’s recruitment into armed forces and groups in West Africa, Save the Children (funded by Oak Foundation) 2005, UK
• International Law and the Child Soldiers 1987, H. Mann, International and Comparative Law Quarterly, Vol. 36 pp 32-57
• Dr. Radhika Coomaraswamy’s, (SRSG/CAAC) Statement at the Paris International Conference “Free Children from war”, Monday, 5 February 2007

More on child soldiers. Other posts on human rights and international law. More about children’s rights.

What Are Human Rights? (20): Universal Rights

A few more words on the universality of human rights (following up from here). Legally, human rights are universal norms and rules. Almost all countries in the world have accepted international treaties that translate human rights into law, or have accepted membership of international institutions which proclaim to respect human rights or work towards the realization of human rights (such as the UN). (There’s an overview of the acceptance of the two major human rights treaties here and here). Moreover, most if not all national constitutions proclaim human rights to be part of the country’s highest law. Even North-Korea recently changed its constitution in this sense.

So, this example of North-Korea makes it obvious that legal universality isn’t the same thing as universality tout court. There are in fact three types of universality – legal, moral and factual universality: universal acceptance of legal rules, universal acceptance of moral rules, and universal respect for legal/moral rules. Ultimately, it’s the last one that counts, of course. These three types don’t require each other, but the last one obviously benefits from the presence of the first two:

• Legal (or normative) universality. Legal consensus doesn’t require moral or factual universality. Countries can adopt legal rules for other reasons than moral conviction, and legal rules are – by definition I would say, otherwise we wouldn’t need any legal rules – regularly violated.
• Moral universality: there’s moral universality when human rights are part of the “morality of the world” (or Weltethos), or – in other words – are accepted as peremptory moral rules by all of the world’s cultures, nations, subcultures, religions etc. This doesn’t require legal universality. You can have moral consensus and still have a rogue dictator somewhere who has refused to sign a treaty. Nor does it require factual universality, again because you don’t need a rule – legal or moral – for something that is a fact.
• Factual universality: human rights are not just norms but facts; there are no human rights violations. Again, this doesn’t require legal or moral universality, since actual respect for human rights may have other causes than legal or moral pressure. However, it’s fair to say that without legal and  – especially – moral universality, factual universality is highly unlikely (although many would say that it’s utopian in any case).

Notwithstanding the prominence of human rights talk in almost all domains of life and all corners of the world, there is no moral universality. There are certain ideologies and schools of thought (yes, there’s a difference) that argue against the universal value of human rights. Either they argue against human rights in general, or – more commonly - they argue against certain elements of the system of human rights: for instance, they may reject certain types of human rights (e.g. economic rights), or they may reject the “absoluteness” of human rights and accept that certain human rights can be bracketed in certain circumstances when higher values are in danger (e.g. the use of torture in emergencies). Examples of arguments against the universality of the entire system of human rights can be found in the theory called ”cultural relativism“, or in the view that economic development has priority over human rights.

How do we promote moral universality? Read here.

Human Rights and International Law (18): Responsibility to Protect (R2P)

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The ”Responsibility to Protect“, or R2P in U.N.-speak, is a humanitarian principle that aims to stop mass murder, genocide, ethnic cleansing, war crimes and crimes against humanity. It refers initially to the responsibility of states to their own citizens, but in case states can’t or won’t protect their own citizens, other states can step in, respecting the Security Council procedures. However, this is a last resort, especially if the intervention is of a military nature.

The concept is closely linked to, if not indistinguishable from, humanitarian intervention. Often it’s also called the principle of non-indifference, a sarcastic pun on the principle of non-intervention. Some for whom national sovereignty and non-intervention is still the main and overriding rule in international affairs, see R2P as an excuse for Western interference. Noam Chomsky is a notable if unsurprising example. You can read his arguments here. He is, not for the first time unfortunately, joined by a number of governments that risk being a future target.

Noam Chomsky

(source, art by Robert Shetterly)

However, most in the West aren’t jumping the queue to enter into a legal obligation that can force them to undertake expensive and risky interventions in the name of humanity. The fact that these interventions aren’t only expensive and risky but often also without collateral benefits, doesn’t help either. R2P is not yet a legal rule, more a quasi-legal rule. Some legal or quasi-legal texts include the concept. The Constitutive Act of the African Union includes “the right of the Union to intervene in a member state pursuant to a decision of the African Union assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”. The same is true for the Security Council of the UN. The concept was endorsed unanimously by heads of state during the World Summit of 2005, so it can be argued that the principle is part of international common law (i.e. international law established by coherent and unanimous state practice).

More here. More on humanitarian intervention here and here.

Human Rights and International Law (17): License to Kill? The Morality and Legality of Targeted Killings of Terrorists

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Just a short follow-up from my previous post on the subject of targeted killings:

The Bush administration took the position that killing members of Al Qaeda, a terrorist group that has attacked the United States and stated that its goal is to attack again, is no different than shooting enemy soldiers on the battlefield. The Obama administration, which has continued to fire missiles from Predator drones on suspected Qaeda members in Pakistan, has taken the same view. (source)

Now it seems that the CIA went a step further and developed plans to dispatch small teams overseas to kill senior Qaeda terrorists (Predator strikes can be unreliable and tend to produce ”collateral dammage”). The plans remained vague and were never carried out, and Leon E. Panetta, the new C.I.A. director, canceled the program last month. Apparently, because it was too difficult to organize and probably also because no one has a clue where the terrorists really are.

In 1976, after the disclosure of C.I.A. assassination plots against Patrice Lumumba of the Congo, Fidel Castro in Cuba and other foreign politicians, President Gerald R. Ford issued an executive order banning assassinations. This ban, however, does not apply to the killing of enemies in a war (obviously, because that would make war impossible). Hence the utility of branding the fight against terrorists a “War on terror“. Convincing the world that you are “at war” with the terrorists, turns them into “simple soldiers” who can be killed at will, like all soldiers in a war (except when it comes to the Geneva conventions, they’re soldiers no more…).

My personal views on targeted killing are here. According to me, whether there’s a war going on or not, targeted killings are morally justified only in certain very specific circumstances. When there is an imminent threat and no other means to stop an attack from happening, targeted killings are justified, whether or not we are “officially” at war. That would not only be morally justified, but also a legal act of self-defense under national and international law (see here for instance). The sovereignty of the country where the killing occurs shouldn’t be an obstacle.

Counterterrorism, in civil democratic regimes, must be rooted in the rule of law, morality in armed conflict, and an analysis of policy effectiveness. Targeted killings are indeed legal, under certain conditions. The decision to use targeted killing of terrorists is based on an expansive articulation of the concept of pre-emptive self defense. … According to Article 51 of the U.N. Charter, a nation state can respond to an armed attack. Targeted killing, however, is somewhat different because the state acts before the attack occurs. In addition to self-defense principles, the four critical principles of international law – alternatives, military necessity, proportionality, and collateral damage – are critical to the decision-maker’s analysis. … Implementing [these] four international law principles … requires the commander to ascertain that the “hit” is essential to national security and therefore proportional to the risk the individual presents. Furthermore, the commander must determine that any alternatives, such as capturing and detaining the individual, are not operationally possible. The commander must also seek to minimize the collateral damage – harm to innocent civilians – that is all but inevitable in such attacks. Amos N. Guiora (source)

And of course the threat must be imminent.

What is not acceptable is targeted killing without any imminent threat, or in circumstances which allow for other types of “disablement”. And neither is targeted killing as a kind of popular and photogenic “poetic justice”, because that is justice without due process. And when we have the chance to apply due process, why not show the world that we don’t just destroy criminals, even less suspected criminals or potential criminals? Extrajudicial executions aren’t OK simply because the targets are more blameworthy than opposition figures in Latin-American dictatorships. It’s not because everyone hates Osama bin Laden that we can simply kill him at will.

Human Rights and International Law (16): In Defense of Universal Jurisdiction

Quote by Alexander Hamilton in the Pennsylvania State Capitol, Harrisburg, PA – Medallion by Edwin Austin Abbey – The quote reads: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit”.

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I now believe that one of my previous posts on the subject of universal jurisdiction was somewhat onesided and too critical of the concept. Hence, here are some of the reasons why universal jurisdiction might not be such a bad idea.

But first, a reminder. Universal jurisdiction, according to Wikipedia, is:

a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. (source)

Universal jurisdiction departs from the standard principle that there should be some kind of connection between an act and the state asserting jurisdiction over it. In other words, the normal rule is that states exercise justice in relation to crimes committed on their territory or crimes committed by their nationals abroad. Indeed, this departure is the main criticism of universal jurisdiction: by allowing a state to prosecute individuals who are not its citizens, and who have committed crimes in other states, against people who are citizens of other states, we in fact allow this state to violate the right to self-determination of other states.

However, universal jurisdiction is nothing new, and most countries accept some kinds of universal jurisdiction. For example, few now oppose the right of Israel to judge Adolph Eichmann. The discussion, therefore, centers on the proper extent of universal jurisdiction. Human rights activists claim that states should be able to exercise universal jurisdiction in cases of genocide, crimes against humanity, torture, war crimes and slavery.

The reason behind this list is also the main justification of universal jurisdiction. These crimes affect all of us, the whole of humanity, and not just the immediate victims. Those who commit these offenses are hostis humani generis, enemies of humanity. And this has to be taken literally: these crimes are attacks on humanity, not just on individual human beings. The torturer dehumanizes his victim, but also himself. And he infects the society in which he operates. A society that allows torturers in its midst, can no longer be called a society. The same can be said of genocide and the other crimes in the list.

Universal jurisdiction is the act of reclaiming humanity. It is a statement by different parts of the world community, claiming that humanity does not accept such crimes. It is, therefore, an expression of humanity against those who attack humanity. And it’s a powerful expression of humanity precisely because it emerges from different parts of humanity, different countries and nations which all have an interest in the preservation of humanity.

I can imagine that some would object to all of this and would insist that crimes are committed against individuals, and not against an abstract entity such as “humanity”. But then I would invite those people to explain how they differentiate between a single anti-semitic murder and the holocaust. Or between a single case of an individual torturing another individual, and a case of state organized torture. I do believe that the concept of “crimes against humanity” makes sense, and that universal jurisdiction is a good way to respond to those crimes, maybe not from a purely legal point of view (universal jurisdiction isn’t the most effective jurisdiction) but from a human point of view.

Test Your Knowledge of International Humanitarian Law During Wartime

Take the test here (there are only 12 questions). More on humanitarian law here and here. Other tests: test your knowledge of human rights, and test your knowledge of the death penalty. And, if you really want to learn something about yourself, test how racist you are.

Human Rights and International Law (15): Human Rights and Business, and the Problem of Legally Enforceable “Corporate Social Responsibility”

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Something more on the impact of businesses or companies on human rights (I’ve written about this before).

What is “Corporate Social Responsibility”?

Companies, like any other human entity with the power to act and influence people’s lives, should respect human rights and should do all that is possible in order to avoid that its activities somehow violate human rights. This is part of ”corporate social responsibility” (CSR). The concept of CSR describes the responsibilities of corporations or companies to the wider social environment in which they operate. These responsibilities go beyond the interests or needs of shareholders, workers, employees and customers, and include care for the natural environment and for the human rights of people who are affected in some way by the activities of companies.

Potentially, CSR is of a global nature, because a company can affect the environment of places far away, and the human rights of people in distant countries. Transnational companies (TNCs) especially may have such a global impact, but other kinds of companies as well. For example, an arms producer doesn’t have to be a TNC in order to be complicit in rights violations in different parts of the world.

How can companies violate human rights?

So, human rights are part of corporate social responsibility. The activities of companies can violate human rights in various ways. Just a few quick examples:

• Workers and employees can be forced to accept labor conditions which violate the rights described in articles 23 and 24 of the Universal Declaration. These labor conditions can even amount to slavery (violating article 4) or child labor (violating article 26) and should include the labor conditions in the supply chain and in companies that work as subcontractors (including outsourcing).
• A company’s products and services can be harmful to the health of its customers, violating articles 3 and 25.
• Apart from directly violating human rights, a company can also be complicit in violations committed by others. It can, for example, sell arms and other commodities to authoritarian and dictatorial governments, or governments engaged in an unjust war.
• Its economic activity in a country can be beneficial to a dictatorial government and can prop up this government (e.g. buying diamonds from a government exploiting its people).
• Etc.

Making companies responsible for human rights violations?

Many companies have already adopted a code of conduct, voluntarily or forced by public opinion or consumer action (see here for an example). But others haven’t. And there are still numerous companies actively engaging in activities which they know contribute to rights violations. So the question has been raised if companies should be forced to respect human rights. Or, in other words, if corporate social responsibility in general and corporate responsibility for human rights in particular, should be made legally enforceable. And, if so, how this should be done.

Of course, many laws, including human rights laws, already apply to companies and can be used to force companies to respect human rights (for example laws on labor standards, safety, non-discrimination etc.). However, perhaps it would be better to say that many such laws apply to individuals within companies rather than to companies themselves. And that’s ok, because most of the time, human rights are violated by individuals. Someone, somewhere in a companies always decides to sell arms to a warlord, to invest in a dicatorship, to impose grossly inadequate labor conditions etc. So it’s possible to find someone who’s legally responsible. (The ICC, for example, can prosecute individuals acting in their capacities as directors, employees or agents of corporations).

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Some problems and solutions

However, there are two problems with this kind of reasoning. One problem is that enforcement of laws is difficult in the case of TNCs or other companies with activities abroad. A company may have its headquarters in one country, which, as it happens, is a country with good laws and good enforcement mechanism. But it’s activities generate rights violations elsewhere in the world, in countries that cannot do much about it, either because they are afraid to scare away the TNCs, or because the governments there are complicit in the human rights violations. So there’s a problem of enforcement.

And the second problem: it may not be so easy to determine exactly which individual(s) within a company are responsible for the harmful activities of the company.

A few solutions to these two problems have been proposed.

• The first is to use international law and international enforcement mechanisms (in the style of the ICC). I have no problem with that.
• A second potentially useful solution is to include extra-territoriality in national legislation. Companies can then be prosecuted by the country in which they have their headquarters, and under the law of this country, even if the violations have occured elsewhere. (One can even imagine some kind of universal jurisdiction).
• A third possible solution is more troublesome: make companies separate entities punishable by (international) law, like individuals and states already are. I see some problems with this one. It would allow individual perpetrators to hide behind their companies and escape responsibility. And it would mean, in some case, that people are punished for the misbehavior of their company. For example, if a company is held liable for rights violations, and forced to pay damages which lead to bankrupcy, the company’s employees would suffer, even though they carry no responsibility for the actions of the company (or for the actions of those in the company making the decisions). That would be collective punishment, which is a morally odious concept.

Human Rights and International Law (14): Human Rights vs. Humanitarianism?

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In this post, I want to look at some of the differences – and perhaps conflicts – between human rights activism and humanitarian action (or humanitarian intervention). Obviously, some definitions to start with. There’ve been enough discussions on the definition of human rights on this blog, so I’ll focus now on humanitarianism. (Note: I’m leaving aside the more problematic issue of armed humanitarianism).

Definition of humanitarianism

According to Wikipedia,

humanitarianism is an ethic of kindness, benevolence and sympathy extended universally and impartially to all human beings. No distinction is to be made in the face of human suffering or abuse on grounds of tribal, caste, religious or national divisions.

However, the concept of humanitarianism has become more precise and restrictive over the last decades. In fact, it is now generally understood to be shorthand for “international humanitarian action“, which in turn means international emergency action to alleviate widespread human suffering resulting from war, civil war, famine, drought, natural disasters and other humanitarian crises representing

a critical threat to the health, safety, security or wellbeing of a community or other large group of people, usually over a wide area. (source)

When you think about humanitarianism, you think about the Red Cross, the UNHCR, MSF, WFP etc. The focus is on the alleviation of widespread suffering and the saving of lives.

Hence, there is a close link between humanitarianism and human rights activism. Humanitarianism deals with rights violations. The absence of suffering is a human right, as is life. Of course, human rights are about much more than that. (Free speech, democracy, religious liberty etc. are not about suffering or death, at least not normally). Nevertheless, humanitarianism shares its goals and ideals with part of the human rights agenda, and can therefore be understood as a subset of human rights activism.

Differences between humanitarianism and human rights activism

This link doesn’t mean that there are no differences between the two approaches. I’ll try to mention a few of them here. Apart from the more narrow scope of humanitarianism, compared to human rights activism, the main differences are:

Short term and urgency

Humanitarian agencies such as those mentioned above are by definition engaged in conflict zones or disaster zones. Their only objective is the protection of civilians against immediate harm resulting from war, famine etc. Hence, they are focused on the very short term future: making sure people survive, have enough to eat and are physically secure. Human rights activism, on the contrary, will also look at longer term results and less urgent needs, such as education, institutionalized (as opposed to emergency) healthcare, poverty etc.

Forward looking

Humanitarianism is mainly forward looking, whereas human rights activism reserves a lot of its attention to the past, and more specifically to justice for past human rights violations (including criminal justice).

Immediate causes

Humanitarianism also looks at the immediate causes of suffering, e.g. a war, a disaster etc., whereas human rights activism will tend to identify the root causes behind these immediate causes, e.g. bad governance, poverty, discrimination and other “structural injustices” which surpass the timeframe and the tools of the humanitarian.

Unconditional

Humanitarianism means unconditional action. Given the urgency of the suffering they want to alleviate, agencies will go in, no matter what. The war can still be going on, the disaster can be unfolding… The human rights activist, however, will often point to prerequisites which have to be present before some specific human right can be realized, and without which action is futile (e.g. the removal of a dictator as a prerequisite for freedom of the press). A related point: humanitarianism takes a few human rights in isolation, and works on those only. A human rights activist will look at the whole system of human rights, and stress the interdependence of all human rights.

Political neutrality

Humanitarianism tries to be neutral. It doesn’t take sides in a conflict or in a (civil) war. All suffering is viewed as equally deserving of alleviation, whether it is the suffering of the victim or the suffering of the aggressor (“a universal duty to act in the face of human suffering”). This isn’t moral relativism, but a practical necessity in many cases. If the humanitarian agencies want to have access to the people who are suffering, they often don’t have the luxury of criticizing any of the parties in the conflict, of outspoken public advocacy, and of “naming and shaming”.

The human rights activist, on the contrary, has to take a stand. Human rights aren’t politically neutral. They require, to a certain extent, democratic government, and non-democratic government is often a root cause of many rights violations. (See here as well).

Human Rights and International Law (13): The International Criminal Court, What Does It Do & How Does It Do It?

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[This post is by guest-writer Line Løvåsen].

In an earlier post, we gave an historical overview of the birth of the International Criminal Court. In the current one, we’ll examine how the ICC functions, what it is supposed to do, what it can’t do, and what it should do. More specifically, we focus on the problems it faces bringing justice to the world.

Structure of the ICC

The ICC has its seat in The Hague, as its sibling, the International Court of Justice which is more focused on inter-state disputes and not, as the ICC, on individual responsibility. The ICC consists of several organs:

• the Presidency
• the Judiciary
• an Appeals Division
• a Trial Division and a Pre-trial division
• the Prosecutor and the Registry.

In addition to this, an institution was added as an oversight tool by state that are parties to the treaty, the Assembly of States Parties.

18 highly qualified judges are elected by the Assembly of States Parties. There is only one from a particular nation at a time. Three of these judges form the Presidency, elected by the judges. The Presidency is responsible for the administration of the Court. The Appeals Division consists of the President and four judges, while the Trial Division and Pre-Trial-Division consist of six judges. The Prosecutor is an independent organ and elected by the Assembly of States Parties (Schabas 2004, pp.176-180). The Registry is responsible for the non-judicial features of the administration, and the Registrar is also elected by the judges.

The ICC vows to respect high morality, various kinds of experience, and nationality and gender balance. The Assembly of States Parties is also responsible for administrative matters and the implementation of amendments to the Rome Statute governing the ICC. Each state has one representative (ibid. 2004, pp.182-185).

Mission of the ICC

The Court’s fundamental missions are first, to impose an international legal order based on the rule of law. The rule of law means fixed laws, free from random judgments in individual cases and the instability of interpretation. Second, the Court wants to fight the culture of impunity (exemption from punishment) and build a global culture of accountability (responsibility).

Jurisdiction of the ICC

Article13 of the Rome Statute specifies when the Court may exercise its jurisdiction:

• after initiation of a case by the Prosecutor,
• by a State Party, or
• by the Security Council.

There was a huge amount of discussion during the Rome Conference where the ICC was prepared in order to reach agreement on the subject matter of the jurisdiction, or, in other words, on the definition of the core crimes within the jurisdiction of the Court. It was agreed that the ICC should be able to take cases linked to 4 types of crimes:

• the crime of genocide,
• crimes against humanity
• war crimes
• and the crime of international aggression.

The precise definition of the first 3 has been established. The crime of genocide can be committed in both war and peace time; it does not have to be widespread or be a systematic attack on the basis of an organized plan, but it is characterized by the intent-requirement. The Statute in article 30 puts weight on the mens rea principle (guilty mind); the accused had intentions behind the crime, were aware of the consequences, and hence are personally responsible (ibid. 2004, p.108). Criminal offense thus is constituted by two elements, actus reus (the physical act), and the mental element (McGoldrick et.al. 2004, p.263).

Crimes against humanity on the other hand do require a widespread systematic attack, but are like genocide applied both to war and peace time. War crimes again do not require a large-scale and planned attack, but cover both internal and external conflicts, and apply only to war.

The crime of aggression is not defined yet as it was included in the Statute at the last minute of the negotiations, and it thus was impossible to reach a consensus on the definition. Its quite paradoxical that it is at the same time called the “supreme crime”. Thus compared to the three other crimes, the Court will not have jurisdiction over this crime until an agreement is reached (Hebel-Robinson 2002, p.81). In the meantime, this crime falls under the jurisdiction of the UN Security Council.

The temporal jurisdiction, ratione temporis, gives the ICC only jurisdiction in cases that occurred after the Statute has entered into force. This ex post facto element (no retroactivity) has been criticized, as it implies that many offenders are able to get away with their crimes (Schabas 2004, pp.69-70). The territorial jurisdiction, ratione loci, gives the Court jurisdiction over crimes committed on the territory of States Parties (ibid. 2004, pp.78-80). Personal jurisdiction, ratione personae, gives the ICC jurisdiction over persons who are citizens of a State Party, or of a non State Party that has accepted the jurisdiction of the ICC. So the Court can exercise jurisdiction only in cases where the accused is a national of a State Party or the alleged crime took place on the territory of a State Party. The only exception to this rule is when a situation is referred to the Court by the United Nations Security Council.

Problems with the ICC

The ICC faced and still faces political obstacles from some reticent states, as well as inherent challenges. A compressed time frame for the finalization of the text before a rushed signing in Rome resulted in some technical errors and unclear definitions in the Statute. Both content and interpretation have been debated, and the complexity of the Statute in general has raised problems with interpretation. The fact that negotiations were held in six languages because of the 160 participating states at the Rome Conference did not make things easier. Neither did the fact that there were distinctive legal systems and values present, all of which had to be taken into account (Lee 2002, pp.11-14).

The ICC is also a political compromise because the purpose was to have a near-universal acceptance of the Court. Some of these compromises become apparent when examining the organizational and institutional structure of the ICC. In article 21 of the Rome Statute, you can find the legal sources of the ICC.

• At the top, there is the Statute itself;
• then there are the treaties (international law and the Geneva Conventions);
• and then there is domestic law.

The third part comes into play when the Court fails to resolve an issue when applying the first two sources. This means that the law can vary depending on the place of the crime or the nationality of the criminal, which is incompatible with the universality and equality principles (Schabas 2004, pp.90-92).

There is also the complementarity principle; jurisdiction falls to the ICC when states are unwilling or unable to investigate themselves. This seems to be unfair to developing countries with relatively weak judicial systems. It also means wasting valuable time. While one takes the time to determine that countries fail, evidence gets lost, criminals flee etc.

The jurisdiction of the Court is restricted to the four core crimes mentioned above (which for the moment means only three). As a result, many international crimes, like terrorism, drug trafficking, environmental damages etc. still are within national jurisdiction. But national jurisdiction is often imperfect, a fact which initiated the ICC in the first place.

Furthermore, the Court only has jurisdiction when either the state in which the crime was committed or the state of the accused is a party to the Statute or has accepted the jurisdiction of the Court. This again excludes many crimes. The Court may be able to exercise its jurisdiction on a non-party state if this state has committed one of the 4 core crimes in a State Party, but not if it commits these crimes in its own territory and against its own citizens. And, sadly, this happens very often.

There is the possibility that the Court acts when a case is referred to it by the Security Council, and then it has jurisdiction even if the states involved are not Parties, because the competence of the Security Council is premised under chapter VII of the UN Charter. This is another development from traditional international law were the principle of consent has dominated, but unfortunately this course of action will be very rare given the veto power of the 5 permanent members of the Security Council. Moreover, when the Prosecutor initiates a case, the Security Council has the right to take it out of his hands.

The U.S. insisted at the Rome conference that consent from both the territorial and national states involved should be required for a prosecution to take place. According to the Bush administration, the ICC broke with long-standing international legal prece­dent by asserting ICC jurisdiction over nationals and military personnel from states that are not party to the treaty. The U.S. wanted to limit the power of the Prosecutor and prevent cases against U.S. troops that have committed crimes during peace-keeping or peace-enforcement efforts. For the U.S., a case can be initiated only when both the State of the accused and the state of the territory where the crime has taken place have ratified the Statute (because then a U.S. veto could protect their personnel). However, the conference decided otherwise, which resulted in the U.S. rejecting the ICC. The U.S. is also busy “convincing” other states, which have accepted the Statute, to sign bilateral agreements in which they promise not to hand over U.S. citizens to the ICC (this is possible according to article 98 of the Rome Statute).

However, even given all these problems, the ICC deserves support. Only a constructive engagement with the ICC will make it possible to improve it.

References

Badinter, Robert (2002), International criminal justice: from darkness to light, in Cassese, Antonio – Gaeta, Paola – Jones, R.W.D John (eds.), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford
Boos, Adrian (2002), International Criminal Court: a perspective in Lee, Roy S. (2002), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
Bring, Ove (2002), International criminal law in a historical perspective: comments and materials. Stockholm
Bring, Ove – Mahmoudi, Said (1998), Sverige och folkratten. Stockholm
Broomhall, Bruce (2003), International justice and the International Criminal Court: between sovereignty and the rule of law. Oxford
Cassese, Antonio (2002), From Nuremberg to Rome: From international military tribunals to the International Criminal Court, in Gaeta, Paola – Jones, R.W.D John (2002), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford
Hebel, Herman von – Robinson, Darryl (2002), Crimes within the jurisdiction of the Court, in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
McGoldrick, Dominic – Rowe, Peter – Donnelly, Eric (2004), The Permanent International Criminal Court: legal and policy issues. Oxford
Osterdahl, Inger (2004), The International Criminal Court and collective security in Amneus, Diana – Svanberg-Torpman, Katinka (eds.), Peace and security: current challenges in international law. Lund.
Palme, Christian (2000), Vägen mot rättvisa: de nya krigsförbrytartribunalerna (Världspolitikens dagsfrågor 2000:10). Stockholm
Rome Statute of the International Criminal Court in Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London
Sadat, Leila Nadya (2002),The International Criminal Court and the transformation of criminal law: justice for the new millennium. NewYork
Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London
Yee, Lionel (2002), The International Criminal Court and the Security Council: article 13(b) and 16 in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague

Human Rights and International Law (12): The International Criminal Court, An Historical Perspective

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[This post is by guest-writer Line Løvåsen].

We’ve mentioned before on this blog that national systems of criminal justice are often insufficient and ineffective, and that an international criminal justice system is an important tool for the protection of human rights. It can help to combat impunity, to build a global culture of accountability, to achieve justice for victims and to heal and reconcile a society torn apart by oppression, injustice and dictatorship. A global culture of accountability can also prevent future atrocities.

Some claim that the International Criminal Court (henceforth ICC) is THE international institution capable of achieving this. Others say that it is not, that it is totally undemocratic and that it creates more problems than it solves. For example, a criminal accusation against a sitting head of state may force this person to cling to power, and may therefore counter efforts to negotiate his exit.

So, should the ICC be supported and encouraged to handle an increasing number of cases, or are its critics right and should it be reformed or even abolished? If it should continue, what changes are required to strengthen it? We’ll look at this in a future post in this series. First, we’ll give an historical perspective of the ICC and its genesis.

Beginning of the 20th century

Although there were suggestions of an international criminal court earlier, the birth of the idea of the ICC can be traced back to two international peace conferences held in The Hague in 1899 and 1907. These conferences witnessed the first steps towards a necessary precondition for the court: limitations on the sovereignty of states. They were held because of a worrying increase in military hardware during the previous years. Thirteen treaties or conventions were the result, including Laws and Customs of War on Land and the legal basis of Laws of Humanity. These were the first formal statements of the laws of war and war crimes in the nascent body of international law.

However, the conferences proved unsuccessful when the First World War broke out. This led to necessary changes in the conventions and some new treaties, which together became known as international humanitarian law, also known

as the laws of war, the laws and customs of war or the law of armed conflict, i.e. the legal corpus comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law. It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians. (source)

To jus in bello (law of war) was added jus ad bellum, rules about when it is lawful to start a war. The crime of starting an unjust war was added to the category of war crimes.

Regulating warfare obviously implies limitations on sovereignty. Violations of treaties bring into play a state’s responsibility and liability (if the state has consented to the treaties). But what about individual responsibility? An international criminal tribunal for the prosecution of individuals responsible for war crimes was proposed from several corners several times after the war, but big obstacles were present. The first concerned national sovereignty and the right to be judged under domestic law, and the international prosecution of individuals mismatched with the fact that international law was at that time still seen as an affair between states. Second, international criminal law was still embryonic as positive law and therefore there were no clear rules to judge individuals. Third, it was a widely shared opinion that such a court would not be able to prevent war. On the contrary, the court would supposedly make peace much harder to achieve because it would start a process of recrimination and harm post-war reconciliation (Sadat 2002, pp.22-26).

The embodiment of the ICC in Nuremberg

Following the brutality caused by fascism before and during the Second World War, the idea of an international criminal court was taken up again. The belief that criminal justice stands in the way of peace and reconciliation was replaced by the belief that there can be no lasting peace without justice. After WW2, the Allies were willing to let the new German government prosecute the war criminals. But as this turned out to be less than effective, the Allies created the ad hoc military tribunals in Nuremberg and Tokyo (Palme 2000, p.3).

The war trials held there were often called political trials, which meant that the trial was an indictment of the political project of the accused, in this case nationalism and racism (the same logic was behind the tribunals for former Yugoslavia and Rwanda). It is of course perfectly justified to include in such trials the political system and ideology which made the crimes possible, but as a result the trials in Nuremberg and Tokyo were criticized for being victor’s justice disguised as a universal legal procedure (McGoldrick et.al. 2004, pp.49-50). This criticism was substantiated by the fact that only crimes on the losers’ side were tried, and that the crimes were defined after the facts (Palme 2000, p.4).

Whatever the merits of this criticism, the tribunal in Nuremberg ended up making international law, setting guidelines for future trials and treaties, and in a sense was the first historical embodiment of the current ICC. It was the U.S. that convinced the Allies to have the tribunal, rather than just execute the criminals as for example the British had wanted. The tribunal overcame the earlier obstacle of sovereignty, and made the shift from state responsibility to individual responsibility and from national to international responsibility. The crimes prosecuted at the tribunal were later to become three of the four crimes in the treaty of Rome, the treaty creating the ICC:

• genocide
• crimes against humanity and
• war crimes.

The tribunals for former Yugoslavia and Rwanda, and the work of the International Law Commission (ILC)

After the Nuremberg trials, there was talk about a permanent court. Several problems with ad hoc tribunals had come to light. The time needed to establish such an ad hoc tribunal could result in evidence and lives being lost; hasty recruitment led to problems with staff competence affecting the rights of the indicted (Sadat 2002, pp.31,32). A permanent court could silence the criticism of victor’s justice, since it will not be the responsibility of the victors to set up a tribunal.

However, the journey towards a permanent court would take another fifty years from then. In 1948, the UN mandated the International Law Commission (ILC) to codify international crimes and prepare a draft statute for a permanent international criminal court. But because of the sharp political division in the Cold War world, which also led to a divided UN, the work of the ILC stagnated.

In 1989, the work took on some more momentum, but the end of the Cold War created other problems. It led to the resurgence of older conflicts, as the old world order with the “policemen” of the East and West had disappeared. As a result, the world saw internal conflicts and injustices and atrocities reminiscent of World War 2, especially in Yugoslavia and Rwanda.

Again the international community acted to punish the violations of international humanitarian law (Cassese 2002, pp.9-11), and established the International Criminal Tribunal of former Yugoslavia (set up in 1993 in the Hague) and the International Criminal Tribunal of Rwanda (set up in 1994 in Tanzania). These ad hoc tribunals were not military tribunals like the post WW2 tribunals, but were set up by Security Council Resolutions. While this avoided the charge of victor’s justice, the impossibility to judge persons in absentia caused problems because many of the leaders could not be brought to trial. They were in hiding abroad, hiding in and protected by their own country, or still part of the government and therefore unlikely to be extradited. The tribunal for Yugoslavia did not get any help from the government of former Yugoslavia. Its territory wasn’t under occupation so the tribunal did not have any control over the indicted; many therefore disappeared and resurfaced years later with a long beard (Bring 2002, p.31).

Karadzic

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And it was also for other reasons a difficult process. Unlike in post-war Germany, there was no documented evidence. Neither was it a simple war between states so it took time to convince people that this was an international issue. As the Dayton process was going on, the accused managed to get immunity, and the tribunal was made to look like a potential disturber of the peace process.

In Rwanda in 1994, approximately 800.000 Tutsis were killed in four months by their rival tribe of Hutus. This led to the creation of a tribunal in Arusha, Tanzania, in 1994. This tribunal also suffered some setbacks, but together with the Yugoslavia tribunal it succeeded in convincing world public opinion and many governments that a permanent international criminal court, able to respond quickly and efficiently to gross violations of human rights anywhere and any time, is necessary.

The ILC continued its treaty-making process, and a draft statute was presented to the General Assembly in 1994. 50 years after the work of the ILC began, the final statute was adopted at the Rome Conference on July 17, 1998. 120 countries voted for, 7 against and 21 abstained (Cassese et.al. 2002, pp.14-17). It entered into force after 60 states had ratified it on July 1, 2002 (McGoldrick et.al. 2004, p.43). Here’s the current level of adoption (as you can see, some of the world’s largest countries are still out; we’ll return to the reasons for this in a later post):

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References

Badinter, Robert (2002), International criminal justice: from darkness to light, in Cassese, Antonio – Gaeta, Paola – Jones, R.W.D John (eds.), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford
Boos, Adrian (2002), International Criminal Court: a perspective in Lee, Roy S. (2002), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
Bring, Ove (2002), International criminal law in a historical perspective: comments and materials. Stockholm
Bring, Ove – Mahmoudi, Said (1998), Sverige och folkratten. Stockholm
Broomhall, Bruce (2003), International justice and the International Criminal Court: between sovereignty and the rule of law. Oxford
Cassese, Antonio (2002), From Nuremberg to Rome: From international military tribunals to the International Criminal Court, in Gaeta, Paola – Jones, R.W.D John (2002), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford
Hebel, Herman von – Robinson, Darryl (2002), Crimes within the jurisdiction of the Court, in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
McGoldrick, Dominic – Rowe, Peter – Donnelly, Eric (2004), The Permanent International Criminal Court: legal and policy issues. Oxford
Osterdahl, Inger (2004), The International Criminal Court and collective security in Amneus, Diana – Svanberg-Torpman, Katinka (eds.), Peace and security: current challenges in international law. Lund
Palme, Christian (2000), Vägen mot rättvisa: de nya krigsförbrytartribunalerna (Världspolitikens dagsfrågor 2000:10). Stockholm
Rome Statute of the International Criminal Court in Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London
Sadat, Leila Nadya (2002),The International Criminal Court and the transformation of criminal law: justice for the new millennium. NewYork
Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London
Yee, Lionel (2002), The International Criminal Court and the Security Council: article 13(b) and 16 in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague

Human Rights and International Law (11): International Law Between Protecting and Obstructing Human Rights; The Rules on Immunity and Intervention

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(This post is a summary of a paper that I published in the Texas Wesleyan Law Review recently.)

In the previous post in this series, I argued that international law can contribute to human rights protection, although it shouldn’t be the preferred tool. In the current post, I will discuss some parts of international law that hinder this goal, especially the rules on immunity, self-determination, and non-intervention.

International human rights law makes violations of human rights illegal in the whole world. These violations are, by definition, caused by acts of individuals. Even if the violations are caused by states, by heads of states, or by large numbers of people, they are caused by individuals. Always. Rights violations always lead to individual responsibility.

The problem is immunity, de facto and/or de jure. When human rights are violated by people who represent a state – such as a head of state who orders rights violations or carries them out himself – it often happens that the national rights protection mechanisms, such as the courts and the police, do not assume their responsibility to protect. The individuals who have committed rights violations are not prosecuted by their own states, because they represent the state. They have control over the agencies that normally (should) prosecute rights violations. Take for example the case of Pinochet or the case of the Serbian war criminals.

This is de facto immunity. And this can extend even to the period after they have left power. Maybe they managed to make some kind of amnesty deal with the new democracy, or they just use their influence and their friends in order to pervert the justice system and the division of powers and to escape punishment.

But often these people – even when they have left power, such as former heads of state – enjoy not only de facto but also de juri immunity in national or even international law. Whatever the merits of the rules on immunity in international law, this can never be justified in cases involving rights violations. The theory of immunity says that heads of state or leading functionaries are not responsible for their actions. They represent their states and all their actions are “acts of state,” and therefore the state is responsible for these acts. Lower ranking officials are not responsible either because they can always hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible.

Only by transcending the principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment). This has been the main achievement of the Nuremberg Tribunal. The Charter of the Tribunal clearly states that individuals have international obligations that go beyond their national obligations or commands. Since Nuremberg, it is no longer possible to claim that international law only deals with “acts of state” and that individuals cannot be punished for the acts they commit as representatives of their state or as executives carrying out orders. Nuremberg has given individuals criminal responsibility in international law.

Citizens are no longer at the mercy of powerful individuals within their states. It has become more difficult for individuals to shed their responsibility and to hide behind their functions, immunities, privileges, or hierarchy. Individuals can be made internationally accountable for their actions if these actions are crimes under international law. The fact that national law is not applied, is silent in the matter, or even explicitly approves or imposes the actions does not guarantee an escape from justice.

One of the characteristics of international law is its priority over national law. Human rights especially, as far as they have become part of international law, have priority over national law. Violations of rights that are not punished by national law or that are explicitly ordered by national law can be crimes under international law, in which case international law has priority. Individuals or states can be sentenced and condemned by organs representative of the international community.

But this immediately raises the legal problem of international intervention, as does the right of international institutions to hear complaints by individuals whose rights are violated and who can’t find redress in their national courts, and the right of international institutions to monitor the human rights situation inside individual states. Intervention is forbidden under international law, and this prohibition is a part of international law which, like the rule on immunity, obstructs human rights. The Charter of the UN, although it mentions human rights as one of its aims, specifically prohibits intervention in so-called internal affairs of member states, in the intra-national relationships between states and their citizens (this is the infamous article 2, paragraph 7:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.

This article is often used against attempts to intervene for the sake of human rights. Even merely verbal criticism of rights violations is often supposed to be the type of “intervention” prohibited by article 2, paragraph 7. The “matters” referred to in the article are never precisely defined, so that every state is free to define them. Hence, intervention becomes practically impossible.

However, some acts clearly do not belong to these “matters”: violations of international law; attacks on international peace; and, according to some, systematic and extreme violations of human rights if these violations threaten international peace. Chapter VII of the Charter allows intervention in these cases following a decision by the Security Council, and article 2 explicitly provides an exception for this kind of intervention.

This is important for human rights, and today’s consensus on the definition of “matters” may even include grave violations that do not result in threats to peace. Some “internal matters,” which at first sight can benefit from article 2, paragraph 7, are clearly violations of other provisions of the Charter, e.g., structural violations of human rights such as apartheid (in particular article 55). In that case, some believe that the UN may take measures under Chapter VII (sanctions or even military intervention). Chapter VII can override article 2, paragraph 7, and is perhaps an instrument to enforce certain human rights in certain cases.

Self-determination and sovereignty are very important, but it is obvious that these concepts can easily be used to counter criticism of rights violations. The protection of states requires the doctrine of non-intervention and of the equality of sovereign states. Unfortunately, what is necessary for the protection of states is often harmful to human rights.

Although the views today are perhaps a bit more shaded, it is tradition to assume that the only legitimate enforcement actions of the UN agencies (so-called “collective measures” and “preventive or enforcement action” under Chapter VII) are actions directed at the protection or enforcement of international peace. This is important enough also for human rights, but it only includes actions necessary to enforce respect for human rights when those human rights are directly violated as a consequence of the absence of peace or when their violation may lead to breaches of peace.

More on impunity.

Human Rights and International Law (10): Why Do Human Rights Need International Law?

(This post is a summary of a paper that I published in the Texas Wesleyan Law Review recently.)

Human rights law has globalized during the last decades. And it has done so in two ways:

• human rights have become part of most national constitutions
• and have been enshrined in widely accepted international treaties.

In this post, I will look at the relative usefulness of these two movements. The conclusion will be that ideally human rights protection should be a national matter, but in an imperfect world, with failing national protection, international human rights protection is a necessary alternative for human rights protection.

Originally an invention of the French and American revolutions in the eighteenth century, human rights have now become part of a global legal consensus. Although there are many violations of human rights and some philosophical, ideological, cultural, or religious objections to some human rights, the fact is that these rights are part of internationally recognized legal documents (mostly treaties) accepted by the overwhelming majorities of countries. At the same time, they are included in nearly all municipal legal systems (mostly in constitutions). Human rights are the law of mankind, even though they are widely violated. They have been enshrined in the law because they need the law to be adequately protected. See here for the argument behind this statement.

Why do human rights need international law? Isn’t national law enough? These questions may seem strange and perhaps even somewhat useless. Is not the immense effort that has been invested in international human rights law during the last fifty or sixty years proof enough of its utility? I’m not convinced because there is a strong argument in favor of the assertion that the protection of human rights should be first and foremost a matter of national law and national judiciaries.

International law is far removed from ordinary citizens, and if they want to complain about human rights violations they will most likely want to use their national law and their national judiciary. Their own judiciary is closer and hence more accessible and more able to understand and punish. The first responsibility of the international community, therefore, is not regulation or the administration of justice, but assisting countries to reform their national laws and judiciaries in order to make them more compatible with human rights.

However, what if this fails? National law and national judiciaries do not always effectively protect human rights, either because of the absence of adequate national laws or because of the ineffective protection and enforcement of national laws by judiciaries and/or executive powers. And outside assistance and pressure do not always succeed in solving this kind of problem. So, if there is international law protecting human rights, this law can step in when national law fails. Local judges can invoke international law at the expense of inadequate national law. And if not the national law but the national judges are inadequate, international human rights law also provides global mechanisms and institutions allowing citizens to complain about their state’s conduct.

Imagine that such institutions would not exist. That would mean that citizens could only complain to a national organ, an organ of their own state, an organ which may be ineffective, corrupt, incompetent, or perhaps even implicated in the rights violation. And even if these national organs are effective, they are quite useless if there are no international rules for them to apply in place of inadequate national ones. So there is a strong case in favor of international human rights law combined with international monitoring of national human rights situations, and with international complaints institutions to which citizens of a country can turn in order to denounce rights violations by their country.

Ideally, international human rights law and monitoring are unnecessary, and even undesirable, because human rights protection is best carried out on a national level by a state that can correct itself. But this implies the existence of an ideal state with a well-functioning national division of powers, a national “trias politica” in which one power can control and correct the mistakes (e.g., rights violations) of another. As long as not all states are ideal states some national judiciaries need the assistance of international law when their national human rights laws are insufficient or nonexistent, and some citizens need the assistance of international monitoring and enforcement institutions when their national division of powers is insufficient or nonexistent.

As long as we are some distance from Utopia, international law and international monitoring and enforcement institutions are necessary for the universal protection of human rights and should complement national rules and institutions. Countries should be encouraged or, if necessary, pressured to accept international human rights treaties so that citizens can invoke international laws in the absence of national ones. International human rights law traditionally includes the right to monitor and to complain about human rights violations internationally, and this means, in theory at least, that individuals or groups do not have to trust their own state to correct itself and to punish its own crimes. They can involve international monitoring and complaints institutions to further their cause when their national judges are incompetent, unwilling, or unable to implement national rules. Countries should therefore also be encouraged to accept the authority of such treaty institutions wherever this acceptance is voluntary.

Furthermore, the existence of international law makes it easier to reform national law. An international system of law makes it impossible for states to take the law into their own hands and to decide autonomously what is and what is not part of their law. International law is traditionally superior to national law and it can force national law to be compatible with it. It is therefore an additional means to ensure that human rights are part of the law everywhere. By improving national law, international law makes national protection mechanisms more effective. And when it is not the national law but the national protection mechanism and institutions which are defective, international law replaces these mechanisms with global ones, or at least tries to do so (the best global complaints and enforcement procedures are still less effective than the best national judiciaries).

The individual right to denounce violations before an international judicial or quasi-judicial institution gradually took root after World War II. Today, the treatment of citizens by their state is no longer the exclusive competence of the state in question. The days are gone when states could treat their citizens as they liked. Individuals now have a right to speak in the international community and they are no longer confined to national law. They have international law to help them and international stages to voice their protest. International organizations in turn have a right to poke their nose into national affairs and in some cases even to enforce respect for human rights.

This means that citizens are no longer at the mercy of their states and that they can look for outside help if their state does not respect their rights, does not control and correct itself, does not provide mechanisms to enforce their rights (such as laws and the division of powers), or does not make sure that these mechanisms function adequately in all cases.

Most violations of human rights are the consequence of state actions or of actions by representatives of the state. Unless there is a highly effective division of powers, it is unlikely that a state will prosecute itself or its representatives, and it is necessary to have international protection. But national protection within a highly effective system of division of powers must be the first choice. Ideally, national protection is close to the people, easily accessible, legitimate, acceptable, and knowledgeable of local circumstances. It is also close to the perpetrators, which is why effective punishment is more likely than in the case of protection by another country or by an international institution, which may even fail to see the perpetrators, let alone punish them.

National protection is the best option, but also the most difficult one. The perpetrator is often the state or its representatives, which is why national protection can only function within a highly effective system of division of powers. Unfortunately, but not accidentally, most of the more serious violations of rights take place in those states that do not have such a system. National protection can only protect us against relatively minor violations because it can only function in a country with a tradition of separated powers, rule of law, etc.; in a country, in other words, that is unlikely to suffer serious violations of human rights. But still, it is a model that should be used as a universal ideal, even or especially in those countries where it is as yet far from reality. In the meantime, international jurisdiction takes the place of the ineffective national jurisdiction.

Human Rights and International Law (9): Impunity

Luis Moreno-Ocampo

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I deeply hope that the horrors humanity has suffered during the 20th century will serve us as a painful lesson, and that the creation of the International Criminal Court will help us to prevent those atrocities from being repeated in the future. Statement made by Luis Moreno-Ocampo on the occasion of his election as first Prosecutor of the International Criminal Court by the Assembly of States Parties in New York on 22 April 2003.

Many gross violations of rights such as genocides, state oppression, torture etc. are committed by the political class of a country, and in particular by the political leaders. And if they don’t personally dirty their hands, they organize, order, facilitate and protect the executors. They view rights violations as a necessary element in the exercise of power.

For many reasons, legal and practical, these leaders often enjoy impunity, meaning literally “without punishment”. The “Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity” describes impunity in this way:

The impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. (source)

Reasons for impunity

Here are some of these reasons for impunity:

1. Self-Preservation

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A first reason for impunity is the fact that the perpetrators are in power and have subjected the justice system and the judiciary to their command. They have, in other words, destroyed the division of powers or failed to institutionalize it. Because they are so powerful, most of them die in the saddle and only have to fear a Higher Judge.

But some do not and end their reign (or see it ended) during their lifetime. But even then they manage to protect themselves. If they still have enough influence to stay in the country, they can either negotiate immunity or amnesty (take the case of Pinochet), or they have enough friends in high places to dispense with such formalities (take Deng Xiaoping, the butcher of Tienanmen).

2. The solidarity of tyrants

Milosevic and Karadzic

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If their exit from power is somewhat acrimonious, they may have to flee to another country where a friendly dictator will do everything to avoid a precedent of justice and will harbor the criminal until the end of his days (take Karadzic). How beautiful solidarity can be.

3. The law

Donald Rumsfeld

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Sometimes the national justice system can’t help, and at other times the international solidarity of tyrants hinders an otherwise able and willing justice system. Also the law can come to the rescue. State functionaries (sometimes even former functionaries) claim to enjoy legal immunity in national or even international law for acts carried out while in office. Individual perpetrators hide behind their states. Heads of state or leading functionaries are said to represent their states and all their actions are “acts of state”, and therefore the state is responsible for these acts.

Lower ranking officials are not responsible either, because they can hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible either.

Only by transcending these principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment.) This has been the main achievement of the Nuremberg Tribunal. The Nuremberg tribunal was the first tribunal to judge the crimes of political leaders and to refuse to grant them immunity for war crimes and gross violations of human rights such as the holocaust. The charter of the fledgling International Criminal Court (ICC) also rules out defenses based on immunity:

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. (source)

Charles Taylor of Liberia was indicted in 2003 while still in power, and is now in the dock in The Hague. Milosevic went before him and others will follow. But they have to be extradited. Political leaders will not extradite themselves, and after they leave office they will continue to enjoy some protection at home. Taylor was arrested because he first agreed to accept exile in Nigeria.

Moreover, countries have to sign up to the ICC treaty. Zimbabwe for example has not signed up, so Mugabe will not have his day in court, unless there is a referral to the court by the Security Council. Sudanese President Omar al-Bashir is now indicted on charges of genocide, crimes against humanity and war crimes over the slaughter in Darfur, but will probably remain comfortably in his seat.

Some claim that the possibility of being handed over to the ICC after the end of their reign, forces tyrants to cling to power and use ever more violent means to do so. But then you could as well grant amnesty to all hostage takers out of fear that they would otherwise do more harm to their hostages.

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4. Institutional problems

The impunity of ordinary civil servants or members of the police is often the consequence of under-developed state institutions. Judiciaries that are malfunctioning or corrupt, policemen who are underpaid or have a lack of training etc.

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations. (source)

Data

The Committee to Protect Journalists has an impunity index in which countries are ranked according to the number of murder of journalists that are unresolved. More statistics are here.

Here’s a post on the related subject of universal jurisdiction.

More on justice for dictators.

Human Rights and International Law (8): Real and Normative Universality of Human Rights

louis henkin

No doubt the commitment of many countries to human rights is less than authentic and whole-hearted. Yet, the fact of the commitment, that it is enshrined in a constitution, and that it is confirmed in an international instrument are not to be dismissed lightly. Even hypocrisy may sometimes deserve one cheer for it confirms the value of the idea, and limits the scope and blatancy of violations. Louis Henkin

susan mendus

Even though human rights are violated virtually everywhere, the principle that they should be defended is asserted virtually everywhere. Virtually no one actually rejects the principle of defending human rights. Susan Mendus

The Vienna Declaration of 1993, accepted by almost all states of the world (more than 170), affirms that the universal nature of human rights is “beyond question” and that these rights are “the birthright of all human beings”. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – the two major treaties for the protection of human rights – have been signed by more than 140 countries (one of them is China). All of these countries have undertaken the legal obligation to respect human rights (including political and economic rights). The universality of human rights is a fact in positive law.

However, all we have is normative universality. Everybody or almost everybody agrees on the norm, but there is as yet, no actual universal application of the norm. Theory is one thing, but reality often struggles behind. Promises are not kept, declarations of good intent are outright lies and treaties are violated. Furthermore, it is very difficult to enforce treaties. There is no global police force or executive power and there is the principle of national sovereignty and non-interference in internal affairs.

However, theoretical or normative consensus is not useless. It means that evil is not almighty. Evil has to lie and cheat. Hypocrisy is always a compliment to virtue. There can be no hypocrisy, if virtue does not have at least some influence. Even though a declaration or a commitment often does not change reality immediately and substantially, it can be referred to when yet another dissident is put behind bars. If a state violates a treaty, it will have some difficulty explaining why it has done so, why its actions contradict its words, why the situation supposedly warrants exceptional measures deviating from a self-imposed rule, and why these “exceptional” measures are a part of everyday life for many citizens.

Other posts on universality.

Human Rights and International Law (7): Crimes Against Humanity

This is from the infamous Nazi newspaper of Julius Streicher, Der Sturmer, from 1934. The cartoon praises the Nazi Ministry of Culture for removing Jewish teachers from German classrooms. Streicher was convicted at Nuremberg for crimes against humanity and hanged in 1946.

A crime against humanity is a large scale atrocity against a civilian population, such as genocide, ethnic cleansing or the massive killing of civilians during war, and is the highest level of criminal offense. It is either a government policy or a wide practice of atrocities tolerated, condoned or facilitated by a government. Atrocities such as murder, torture and rape are crimes against humanity only if they are large scale and part of a widespread or systematic practice organized or condoned by a government. Isolated atrocities are certainly human rights violations, and can perhaps even be war crimes, but they don’t fall into the category of crimes against humanity. (And acts which do not violate human rights can never be crimes against humanity, even if they are widespread and systematic and even if they cause suffering).

Crimes against humanity can take place during a war or in peace time, and can be committed by a state against its own citizens or against the citizens of another state.

I’ve tried to put these and other distinctions in a drawing:

Some examples of the meaning of the digits:

1. lack of recognition or love
2. corruption (although corruption, especially large scale and systematic corruption, can have consequences for human rights and should then be part of number 4)
3. poverty
4. murder
5. crimes against non-combatants; torture of prisoners of war; the crime of international aggression (crime against peace)
6. genocide, ethnic cleansing
7. genocide or ethnic cleansing as part of the “war effort”

Human Rights and International Law (6): International Human Rights Law and Its National Effects

 

In the theory of international law one can find the terms monism and dualism. These are used to describe two different theories of the relationship between international law and national law.

1. Monism

Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal.[1] In states with a monist tradition, international law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules. Monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution. From a human rights point of view, for example, this has some advantages. Suppose a country has accepted a human rights treaty – the International Covenant on Civil and Political Rights for instance – but some of its national laws limit the freedom of the press. A citizen of that country, who is being prosecuted by his state for violating this national law, can invoke the human rights treaty in a national courtroom and can ask the judge to apply this treaty and to decide that the national law is invalid. He or she does not have to wait for national law that translates international law. His or her government can, after all, be negligent or even unwilling to translate. The treaty was perhaps only accepted for political reasons, in order to please donor-countries for example.

“So when someone in Holland feels his human rights are being violated he can go to a Dutch judge and the judge must apply the law of the Convention. He must apply international law even if it is not in conformity with Dutch law”.[2]

The American constitution of 1787 provides a similar rule:

“the treaties which shall be made under the authority of the United States shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”.[3]

2. Dualism

Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law.

“International law as such can confer no rights cognisable in the municipal courts. It is only insofar as the rules of international law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations”.[4]

The supremacy of international law is a rule in dualist systems as it is in monist systems. If international law is not directly applicable, as is the case in dualist systems, then it must be translated into national law, and existing national law that contradicts international law must be “translated away”. It must be modified or eliminated in order to conform to international law. Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain.[5]

3. Examples

In some countries, such as the U.K. for instance, the dualist view is predominant. International law is only part of British national law once it is accepted in national law. A treaty

“has no effect in municipal law until an Act of Parliament is passed to give effect to it. In other countries this distinction tends to be blurred. In the vast majority of democratic countries outside the Commonwealth, the legislature, or part of the legislature, participates in the process of ratification, so that ratification becomes a legislative act, and the treaty becomes effective in international law and in municipal law simultaneously. For instance, the Constitution of the United States provides that the President ‘shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur’. Treaties ratified in accordance with the Constitution automatically become part of the municipal law of the U.S.”[6]

4. A matter of national legal tradition

International law does not determine which point of view is to be preferred, monism or dualism. Every state decides for itself, according to its legal traditions. International law only requires that its rules are respected, and states are free to decide on the manner in which they want to respect these rules and make them binding on its citizens and agencies.

“[T]he transformation of international norms into domestic law is not necessary from the point of view of international law…the necessity of transformation is a question of national, not of international law”.[7]

Both a monist state and a dualist state can comply with international law. All one can say is that a monist state is less at risk of violating international rules, because its judges can apply international law directly.[8] Negligence or unwillingness to translate international law, or delays of translation, or misinterpretation of international law in national law can only pose a problem in dualist states. States are free to choose the way in which they want to respect international law, but they are always accountable if they fail to adapt their national legal system in a way that they can respect international law. Either they adopt a constitution that implements a monist system so that international law can be applied directly and without transformation, or they do not. But then they have to translate all international law in national law. In a monist state, one relies only on the judges and not on the legislators, but judges can also be negligent and they can also make mistakes. If a judge in a monist states makes mistakes when applying international law, then the country violates international law just as much as a dualist country that, for one reason or another, does not allow its judges to apply international law directly and fails to translate or fails to translate correctly and effectively.[9] One reason for preferring dualism is precisely the fear that national judges are not familiar with international law – a highly complex field of law – and hence are liable to make mistakes.

5. The problem of “lex posterior”

In dualist systems, international law must be translated into national law, and existing national law that contradicts international law must be “translated away”. It must be modified or eliminated in order to conform to international law. However, the need for translation in dualist system causes a problem with regard to national laws voted after the act of translation. In a monist system, a national law that is voted after an international law has been accepted and that contradicts the international law, becomes automatically null and void at the moment it is voted. The international rule continues to prevail. In a dualist system, however, the original international law has been translated into national law – if all went well – but this national law can then be overridden by another national law on the principle of “lex posterior derogat legi priori”, the later law replaces the earlier one. This means that the country – willingly or unwillingly – violates international law.[10] A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law.

References

1. Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen, 1994, p. 82.
2. G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.
3. in A. Cassese, op. cit., p. 19.
4. James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper Collins, London, p. 45.
5. A. Cassese, op. cit., p. 15.
6. M. Akehurst, op. cit., p. 45.
7. A. Cassese, op. cit., p. 21-22.
8. P. Kooijmans, op. cit., p. 83.
9. ibidem, p. 83.
10. ibidem, p. 84.
(this is a copy of my Wikipedia article on the subject)

Human Rights and International Law (5): Enforcement of Human Rights

"The Volunteers", an etching by Käthe Kollwitz, Germany, 1920

Complaints, verdicts, judgments, condemnations and recommendations are not enough. Words do have some power. They may be able to influence those who violate rights or those who are unwilling to protect rights. And the language of rights is a tool that victims can use to recognize their predicament, to organize their struggles, to rally supporters and to protect themselves. It helps them to understand that their situation is not their fate; that their suffering is not a necessary contribution to the general welfare or to the course of history. Knowing that you have rights can already change a lot. Protest requires consciousness, and protest can sometimes be effective.

But words sometimes need to be followed by actions. Force and coercion, or an executive power, is often necessary. Law enforcement can require military force, policing, sanctions, interventions etc. The international community, or those who represent this community, need to be able to go against the will of individual states and force them in a certain direction.

The judiciary, according to Montesquieu, does not really have power. It depends on the executive for the execution of its judgments. However, in an international environment, it has always been very difficult to enforce law and judicial judgments. The independence of states, the right to self-determination and national sovereignty have always inhibited international coercion of individual states. These principles sometimes even inhibit effective monitoring. So, if you cannot even look and judge, it is obvious that it is even more difficult to enforce your judgment.

There are global monitoring institutions, but no world executive, no world government, no world police, no strong arm of the international law, and no global monopoly of violence. Perhaps the Security Council could become the world police, but it has to rely on the military force of member states and it has to deal with the veto system. Victims of rights violations are often left in the hands of their butchers.

More on human rights and foreign policy here, here, here, here, here, here, here, here, here, here, and here.

Human Rights and International Law (4): Catch 22 of Human Rights Monitoring

Cornelius Castoriadis

To effectively control (or “monitor”) states’ respect for human rights one needs respect for human rights. Organizations, whether international organizations or private organizations (NGOs), must have some freedom to control, to engage in fact finding, to enter countries and move around, to investigate “in situ”, to denounce etc. Victims should have the freedom to speak out and to organize themselves in pressure groups. So we assume what we want to establish.

The more violations of human rights, the more difficult it is to monitor respect for human rights. The more oppressive the regime, the harder it is to establish the nature and severity of its crimes; and the harder it is to correct the situation.

However, we can establish that it is difficult to establish anything, which is proof enough of rights violations. Foreigners perhaps have somewhat more freedom than citizens of the countries in question. In the words of the French philosopher Cornelius Castoriadis:

How could one compose a free society unless free individuals are already available? And where could one find these individuals if they have not already been raised in freedom?

Human Rights and International Law (3): Humanitarian Intervention

(source, photo by Howard Davies/Oxfam Great Britain, taken in 1999, showing Kosovar refugees gathered at the Macedonian border)

This post focuses on one type of humanitarian intervention only, namely so-called armed humanitarian intervention (although I’ll drop the “armed” for easier reading). There’s a post here on non-armed humanitarian intervention.

Humanitarian intervention is an armed intervention in one state by another state or states with the objective of ending gross violations of human rights, such as genocide or ethnic cleansing.

Whereas the moral case for such an intervention is very strong, it remains controversial because of the fact that violence is used and that the national sovereignty of the “receiving” state is violated. One could easily justify the breach of sovereignty since the fate of the victims is obviously more important than sovereignty. Furthermore, this breach is inherently temporary because neither annexation nor interference with territorial integrity is at stake. But the use of violence is more difficult to justify.

It seems that humanitarian intervention is only justified when certain conditions are met:

1. Legitimate authority

The states that act cannot unilaterally decide that intervention is necessary. There must be some kind of general conviction that the situation is serious and that some kind of forceful intervention is warranted. A Security Council resolution can be the authority.

If there is a general conviction that action is necessary but there is no explicit Security Council approval of intervention – because of the veto or because of other reasons – then we have to be careful. If states can unilaterally decide to intervene, even against world opinion, then we have international chaos. Everybody takes the law in his own hands, and states will quickly find human rights excuses to intervene wherever they want. Some legitimate authority must have expressed something close to a world opinion regarding the necessity of intervention. Individual actors cannot decide autonomously. An approval of the General Assembly may indicate that there is consensus, but a Security Council resolution is better because this will guarantee that the intervention will not cause superpower conflicts.

2. Collaboration

As an elaboration of the previous point, one must demand that the intervening states be as numerous as possible in order to avoid accusations of self-interest, partiality and power politics. Collaboration also increases the chance of success (see condition 4.)

3. Right intention or appropriate goal

The main goal of the intervention must be the protection of human rights. The accusations that often accompany US-led interventions are generally unhelpful, except of course when they are true.

4. Probability of success

There must be a real chance that the intervention can be successful.

5. Last resort

Other and more peaceful means must have been tried first, although the urgency of the matter can make immediate military action acceptable.

6. Proportionality

The intervention must be proportional to the evil it is meant to destroy. Not enough intervention can cause more harm than before without a real chance of solving the initial problem. Too much intervention will also cause more harm than before. The costs must not outweigh the benefits. We must prevent more harm than we cause, although one must be careful when making utilitarian calculations. Violence always results in rights violations. Hence the rights violations one is willing to accept as a consequence of violent intervention cannot outweigh the violations that originally caused the intervention. How many rights violations can one cause when fighting rights violations? Theoretically, one cannot sacrifice certain people’s rights – for example, the rights of innocent civilian victims of air bombardments – for the sake of other people’s rights – for example, the victims of the dictatorship that is the target of the bombardments. However, most of us believe that in extreme circumstances, it is acceptable to sacrifice some rights or the rights of some in order to protect many more rights or the rights of many more. This means that violence is only acceptable in extreme cases, namely when the rights of many or many rights are violated.

7. Ius in bello

The laws of warfare must be respected.

8. Peace

If there is a threat to international peace, then the intervention will have a stronger claim to legality. But this is not a necessary condition.

More on human rights and foreign policy here, here, here, here, here, here, here, here, here, here, and here.

Human Rights and International Law (2): Universal Jurisdiction

(source)

Some countries have granted their courts so-called “universal jurisdiction” in certain matters. Traditionally, courts only have national jurisdiction and can only punish crimes committed on the national territory; crimes committed elsewhere should be handled by the courts of the country in question or by international courts. Laws of one country are also generally understood to be applicable in that country only. Universal jurisdiction in effect leads to extra-territoriality of the law. Some laws are valid outside the territory as well and national judiciaries can apply these laws to acts committed elsewhere.

Belgium, for instance, at one time allowed its courts to prosecute genocide, even if the crime of genocide was committed abroad and no Belgians were involved either as perpetrators or as victims. This was a commendable initiative from a moral point of view, but there are several reasons why universal jurisdiction is not very effective and cannot replace national and international law.

1. The victims of genocide, or the representatives of these victims, if they already know that Belgian courts can possibly help them, will find it difficult to go to Belgium to plead their case. These people will probably live in some Third World country and will not have the financial means to start court proceedings in Belgium (where the hell is Belgium anyway?)
2. The perpetrators are mostly not in Belgium and can therefore not be punished by the Belgian courts. If convicted, they will simply avoid Belgium and it is unlikely that they will be extradited by their home state since they generally occupy a leading function in the government of their state. The only tangible result is a number of diplomatic crises between Belgium and other states, sometimes traditionally friendly states.
3. The Belgian courts quickly find themselves in the position of Atlas, carrying the whole burden of global suffering. There is no way in which these courts, already suffering serious delays, can handle all submitted cases.
4. Political agitators will use the Belgian law to make publicity for their case. They will be tempted to file spurious charges against their political enemies. For example, friends of Saddam Hussein filed charges against President George W. Bush and some other leading members of his administration for waging war against Saddam. The Belgian courts, of course, could not refuse these charges without examination. So an investigation was launched, which deeply upset the Americans, who even threatened to move NATO headquarters out of Belgium, supposedly to protect American officials visiting these headquarters. After all, the Americans know that they are no saints and that Belgian courts can one day decide that there is a case to be made against some of their officials, and can try to arrest them.
5. What if several states decide to start cases simultaneously against one and the same offender, each using its right to universal jurisdiction? That would create judicial uncertainty and many practical problems.

However, in the absence of effective national or international jurisdiction, universal jurisdiction may be the only alternative. And even if it’s not effective for the reasons given above, it sends a signal.

More on justice for tyrants.

Human Rights and International Law (1): Boycotting the China Olympics Because of Human Rights Violations in China and Sudan/Darfur

Some time ago, there was a story in the press about Steven Spielberg canceling his decision to work for the China Olympics. As a consequence, the discussion about a possible boycott (comparable to the boycott of the USSR Olympics after the invasion of Afghanistan) got some more publicity. Here are some general words about sanctions for the sake of human rights.

Boycotts, embargoes and other international sanctions (economic sanctions for example or a ban on foreign direct investments or bank loans) are peaceful means, used by the international community, to convince a country to stop violating human rights or to stop assisting a third country that is violating rights.

A disadvantage of sanctions is that they are most effective against relatively weak states. They can only work when they are directed against countries that are vulnerable to outside pressure (that, for example, depend on imports of products which are not, or not sufficiently, produced at home) and when a critical mass of countries, especially large countries, join in. Moreover, sanctions are not very popular in the countries imposing them. They often hurt that country’s economy. Its businesses can no longer export to or invest in the target countries, and jobs may be lost.

Sanctions are allowed in international law when

“they are taken in consequence of a breach of international rules imposing duties erga omnes, hence conferring on any State a right to claim respect for the rules”. Antonio Cassese

Antonio Cassese

(source)

These rules are, for example, human rights. However, even if every state is allowed to impose sanctions in these cases, it is better that the international community as a whole imposes the sanctions, and not only for efficiency reasons. Collective measures allow us to dismiss the charge of partiality and self-interest. They will also emphasise the symbolic value of the sanctions.

Sanctions have often been successful, for example in the Philippines and in Nicaragua, as well as in Argentina and Uruguay under the Carter administration. Sanctions can be successful when the aim is to weaken the industrial, technological and military powers of a state. Purely symbolic sanctions, such as a boycott of the Olympic Games, are probably less useful. Cultural sanctions are even worse, because they are harmful. They cut off the flow of information. It becomes very difficult to monitor rights violations, the opposition cannot contact the outside world and new ideas cannot take root. Perhaps even the rulers will start to see that other systems can be successful if they are allowed to communicate with the outside world.

It is advisable to impose selective sanctions rather than all-out embargoes that harm the population indiscriminately. Sometimes, it can be enough to stop arms deliveries or oil exports. Not all kinds of sanctions necessarily harm the civilian population.

It can never be the purpose to punish an entire population collectively. All-out embargoes are not only unjust, they are also counterproductive. They do not harm those who are supposed to be harmed, namely the rulers. On the contrary, they reinforce the rulers. The population will identify, not always without reason, the “foreigners” as those responsible for their predicament, a predicament which may be even worse than the one which caused the sanctions. They will rally behind their rulers because the sentiment of “we against the world” will spill over in virulent nationalism. Popular dissatisfaction will be directed to the outside world and away from the rulers. Sanctions are least effective in countries ruled by people who are insensitive to their population’s hardship, or, in other words, in countries where they are most needed.

And even if large-scale hardship caused by sanctions can persuade some rulers to step down or reform, it does not seem right to use or abuse the population in this way. Using people or punishing innocent people is perhaps the most serious violation of human rights.

If sanctions are imposed, then it is important to estimate the possibility of success. One should try to evaluate their efficiency beforehand. The imposition of sanctions and the choice of the kind of sanctions should be decided on the basis of, among other things:

• the fact that less far-reaching measures have been tried and have failed
• an evaluation of the type of adversary and the sorts of pressure he is unable to resist
• the “collateral damage” that is likely to result from the imposition of sanctions
• an evaluation of the stamina of those imposing the sanctions, their willingness to go ahead, and the number of countries that are willing to go ahead
• an evaluation of the possible negative consequences for those imposing the sanctions and of the effect of these consequences on their stamina
• an evaluation of the possibility to evade the sanctions
• the possibility and the willingness to enforce the sanctions by way of a blockade, for example.

More on human rights and foreign policy here, here, here, here, here, here, here, here, here, here, and here.