Human Rights? During War??

 “Laws are silent in times of war” ―  Cicero.

"A mind not to be chang'd by time or place." What I think while here in Durham, I will still think when I am in Pago Pago.

by Kudakwashe Kanhutu 

Critically discuss the relationship between human rights and international humanitarian law. 

The relationship between Human Rights Law (HRL) and International Humanitarian Law (IHL) can be characterised as that of identical twins separated at birth. The two have more or less the same features and serve, again, more or less, the same purpose. The key differences are that human rights obligations should be observed all the time, while IHL governs conduct of hostilities during armed conflict. The other difference between them is where they are codified, with human rights seemingly falling in the United Nations General Assembly declarations which are more recommendatory than binding law while, IHL is codified in Treaties and Customary Law therefore has the force of law due to the pact sunt servanda principle. This paper will first discuss human rights in general and the laws in place for their protection. It will then turn to the genesis of HRL and IHL so as to show where they were separated and what this implies. It will then show the attempts that have been made to reconcile the two regimes; such ‘a humanization of IHL’ is evinced by the coming into being of the International Criminal Court.

Human Rights:

To have a right is to be entitled to something because it is owed to you and if it is denied or threatened you can make special claims to it that trump any other considerations such as political emergencies or national security. Human rights are, literally, the rights one has simply because one is a human being. They are equal, inalienable, and universal to all human beings. The most common example is the right to life, which can be found in almost all human rights declarations. In the human rights regime itself, there is a subdivision between fundamental and other ordinary rights. The fundamental rights are those which relate to civil and political rights such as the right to vote, the right to life, liberty and security of person. The other ordinary rights are those that involve economic, social and cultural rights such as the right to have a paid work and education. The official mantra wants rights to be thought of as "universal, indivisible, interdependent and interrelated," as it is argued that it is useless to have the right to vote if you are illiterate. 

There is opposition to this view of economic rights as fundamental rights by those who think treating them as fundamental undermines the functioning of free market economies which may actually result in a downgrading of civil and political rights. There is also very rarely an invocation of the economic and social rights not being fulfilled on the international level as a point of contention, while the whole humanitarian intervention debate rests on situations where civil and political rights are being violated. This point, of violation, is the reason why this paper will be discussing what are the suitable rights protection mechanisms and when. The excesses of the Second World War led the international community to articulate a regime for protecting human rights. The important issue really is what are the overlaps and clashes between the two regimes in protecting people’s rights in the international system.

International Humanitarian Law: 

Human rights, properly conceived, are about State power vis-à-vis its citizens, while international humanitarian law is the jus in bello side of Just War Theory: it is concerned with regulating the conduct of hostilities – including the use of weaponry – and the protection of victims in situations of both international and non-international armed conflict. 

Jus in bello also operates quite independently of jus ad bellum, which is to say, it does not matter who the aggressor is, both sides are expected to observe the precepts of IHL. These precepts constitute customary international law and are codified in the Hague Conventions of 1899 and 1907, and in the Geneva Conventions of 1949 and its Two Additional Protocols of 1977. The crucial feature of IHL is that it makes a distinction between combatants and civilians. Combatants may be targeted while civilians may not, it also lays out the treatment of Prisoners of War and the sick and wounded. The important jus in bello principles then are discrimination and proportionality. Discrimination means the combatants may not target neutrals, civilians or those no longer taking a part in hostilities either deliberately or through the use of indiscriminate weapons. Proportionality means that any offensive action must remain proportional to the desired ends. This then is a tempering of the extent and violence of warfare so as to minimize destruction and casualties. 

Does IHL, by being lex specialis – which applies after the breakout of an armed conflict – then mean that HRL ceases to exist? Human rights law still applies but the lex specialis of IHL is defensible when we consider that the essence of war is killing, and human rights regime which give rights such as the universal right to life would be unwieldy in conflict situations. However, human rights law still applies in conflict situations as has been affirmed by the International Court of Justice that some human rights norms have attained a peremptory nature thus cannot be derogated from for any reason. The prohibition against slavery and genocide would still hold in conflict situations and States may not cite supreme emergencies as reasons to commit genocide. What remains to be seen then, is if there are such contiguities between HRL and IHL why then were they separated at birth? 

Robert Kolb sees the reason behind this as institutional concerns. The United Nations is said to not have wanted to include any discussion of the law of war in their consideration because they believed that considering that branch of law might undermine the force of jus contra bellum. This is the conviction that they were creating an institution that would save mankind from the scourge of war. A valid instinct considering that a catastrophic world war had just ended. The International Committee of the Red Cross which is credited with the first IHL precepts also refused to be wedded to the United Nations seeing as it was a political organisation and the ICRC is founded on neutrality. Thus the two regimes were separated. 

Humanization of IHL: 

The distinction made in this paper between Human Rights Law and International Humanitarian Law is that of lex generalis and lex specialis respectively. IHL is proper to the conduct of armed conflict as this is a special situation where the right to life of combatants, which universal human rights precepts would insist on, cannot be guaranteed. However, the laws are not silent in law as grave violations such as genocide and slavery are still not permitted as they are seen to be jus cogens norms from which no derogation is permitted. Human Rights Law still applies and the two regimes are seen to be coming even closer with the advent of International Criminal Law which seeks to punish the abusers of human rights in conflict if their States are unwilling or unable to punish them.

Notes:

Kolb, Robert (1998), The relationship between international humanitarian law and human rights law: A brief history of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions. International Review of the Red Cross, No. 324. Available online here: http://www.icrc.org/eng/resources/documents/article/other/57jpg2.htm Accessed 05 May 2014.

Amstutz, Mark, (2013), International Ethics: Concepts, Theories and Cases in Global Politics. Plymouth: Rowman & Littlefields Publishers Inc

Fighting Fire With Fire

“In the midst of peace, war is looked on as an eventuality too distant to merit consideration” – Vegetius.

S - 400 All Altitude Missiles (Russian). Making the skies safe for locals. Picture by Open Source INTelligence.

by Kudakwashe Kanhutu 

[Balancing, since pleas to common sense are bound to fail...] 

The insights of the above Vegetius quote are not lost to the African National Congress Youth League. Thus, Julius Malema was right to opine that Botswana presents an insidious threat to stability in the SADC region if it allows foreign powers to have bases there. We all saw the stupidity of Laurent Gbagbo who tried to talk about sovereignty when French troops already had bases in Ivory Coast; the same troops who put Gbagbo in power then toppled him. The AU Charter should not allow member states to have foreign military bases on their territory,[1] but of course the AU Charter is a script for a stand-up comedy routine: Djibouti, Ivory Coast and Uganda, to name a few, already house AFRICOM structures of some sort. I also thought it unfortunate that President Zuma would come down on Julius Malema for saying “regime change,” a term that has never got anyone in trouble as it is a common term among leaders in the West, but I digress. If we agree that the AU Charter is: (1) a worthless rag and, (2) that the traditional notion of sovereignty anyway would conflict with any Charter article prohibiting inviting foreign forces – and thus allows any country to have military to military cooperation with any power to its heart’s content – then the way to counter threats posed by foreign forces in neighbouring countries is an imperfect but age old one. 

A First Sight of the Problem: 

When I was in Pretoria last year at a meeting with United States policymakers, one of the questions that was raised by them was how can the United States mend fences with the ANC? You see, the United States was the chief backer of South Africa’s apartheid system (much in the same way they back Israel today, common sense and world opinion be damned!). Hell, President Nelson Mandela was still listed as a terrorist in the United States as late as 28 June 2008. Yes – 28 June 2008. I opined four clear steps that could ameliorate the trust deficit that thus exists between the United States and African states. Among my steps was a plea for the U.S and her proxies to respect the AU/SADC position on African issues. Looking back, I now think that the U.S delegates’ question was a rhetorical question; my time would have been better spent had I chosen to speak to the many rocks that speck the South African landscape. Their further responses in the discussion betrayed what I have now come to immediately recognise as an entrenched attitude of listening politely then completely ignoring AU/SADC wishes. 

Well, if people show such disdain towards a magnanimous and forgiving people as the United States has done to SADC, some posture has to be taken. From the first day I understood the full history of colonialism and apartheid, I have always said it is the United States which should be begging to have a relationship with SADC and not the other way round. SADC did not wrong the US and her proxies; it was the U.S and her proxies that brought apartheid and colonialism to our shores and perpetuated it. Why then are the African states on all fours to be recognised by the former coloniser? It is a big question with many answers, such as; on the one hand you have idiocy and sycophancy in the same country (read Gbagbo and Quattara respectively), while on the other hand you have inexplicable stances such as that of Botswana under Ian Khama; name the man or woman who can explain Botswana’s counter productive agitation towards other SADC states. 

But the answer I think is significant as to why African states still court the former oppressor is that there is a sparseness of credible alternatives. To illustrate my point I will use Zimbabwe as my example from here on. We have all heard of Zimbabwe’s Look - East policy, much good has that done; China could not even inject the $10 bn that was needed to keep the Zimbabwean economy afloat in 2008. Also despite the exaggerated cries of a ‘yellow peril’ by the West, I too have misgivings about the conduct of Chinese investors towards Africans. Thus I argue a better variant. I argue that in China, we are courting the wrong giant, on the wrong field; for the next six years we should court President Putin’s Russia in all fields. China has its uses but it walks too softly. Russia on the other hand, has sharply pronounced an ambition to see the basic building blocks of international law preserved. It is Russia that has said that natural resources should remain an issue of national sovereignty where other greedy nations are planning an onslaught against this long standing principle of international law.[2] It is Russia which has been adamant that non intervention in a state’s domestic affairs should be upheld, otherwise all hell breaks loose. Russia too went through the catastrophic economic quandary, which the United States is so wary of; and survived without having to plunder foreign lands. Russia has never been a colonial power in Southern Africa or have they enslaved our people, or sponsored apartheid here in any form. Russia under President Putin is a good country to have relations with in all fields. Mind you, how else can we solve the Botswana problem? 

Every Problem Has A Solution: 

We all know from childhood the story where the hare challenged the elephant to a tug-of-war on the same day he challenged the hippopotamus. The hare’s plan was to pit these two giants against each other for his amusement, and he did. Without any culpability on our part, we find ourselves in a near similar situation today. The slight difference is that, it is the hippopotamus that has been challenging us (a minnow) to a tug-of-war for the past 12 years, while the elephant, gentle giant that he is, has been indifferent. I am not going to continue along the path of parables and fable-speak for long, for the point I am making is a practical point with real world consequences. Thus, let’s forthwith assign terms; Zimbabwe is the hare, The United States of America and its underlings, Britain, France and Germany represent the hippopotamus, while China or Russia (under President Putin) is our gentle giant; the elephant. We just may now have our window of opportunity to accept the hippopotamus’ long standing challenge to a tug-of-war, and like the hare in our fable; we must bring the elephant to this tug-of-war! 

The Problem Clearly Defined: 

President Putin comes to power at a crucial time, when the Western countries are mistakenly thinking that sufficient time has passed for the pain of colonialism to be now forgotten. Maybe, considering Zimbabwe got rid of the colonial yoke in 1980, they figure 32 years is long enough. Maybe they reckon since South Africa got rid of apartheid in 1994, sufficient time has passed. Maybe they are just desperate. I really don’t know how they calculated this, but I know they have decided that it is now time to repackage the colonialist project in the cloak of humanitarian intervention. President Mbeki quotes open discussions in Whitehall relating to renewed interest in accessing Africa’s resources by hook or crook.[3] In this new issue, Western countries actually stalk unrest in the country they will later intervene in for “humanitarian reasons.” Should the legitimate government of that country try to enforce order, this will be taken up by the Western media as the beginning of massacres and genocides that will require intervention by the “international community.” Intervention entails change of regime and the installing of a puppet regime that is friendly to the intervening countries. The puppet government’s end of the deal is to ensure access to resources and markets for the Western block in exchange for international legitimacy. How is this not colonialism? It is also quite a pathetic and transparent ploy, but does not a drowning man grasp at straws? 

President Putin reckons that the economic problems in the West today are forcing these countries to be wantonly aggressive in their search for a solution to their economic woes.[4] I believe him. Since I have already said that Russia has never been a colonial power in Southern Africa, President Putin has the moral ground to speak from. Unlike the United States which, may I remind you, had President Nelson Mandela listed as a terrorist as late as 28 June 2008.[5] 

Further Context: 

There is a palpable suspicion in academic circles that we have now entered the Third Cold War era. Relations between Russia and the West are frayed due to the United States and her proxies’ aggression in building a European Ballistic Missile Defence Shield. What this missile shield will do is take away the mutual vulnerability that has thus far ensured a stable ‘balance of terror’ between the U.S and Russia. This is the source of the major clashes between the two superpowers. Although the claim is that the shield is targeting rogue states, note that the shield will not distinguish whether missiles are from rogue states or from Russia. In any case is not a rogue state any state that the United States disagrees with at the time? The other obvious disagreements such as Russia’s position of largely respecting the building blocks of international law while the United States prefers what is expedient for the moment, are just symptoms not the disease. The bottom-line is that the United States is desperate to maintain its world hegemony against re-emerging and emerging new powers. Notice how the U.S refused to endorse the nuclear fuel exchange deal that Brazil and Turkey had brokered for Iran, not because the deal was flawed but because it had not been a U.S initiative. Observe also what has been called a policy of encircling China, military bases and diplomatic efforts placed to outmanoeuvre China on the whole globe. The hope for the U.S is to be able to dictate the law, not just to small countries but to Russia and China as well, once the United States and its proxies are invulnerable to long range missiles. President Putin has reacted to this disguised aggression by saying Russia should build a rival missile defence shield or build weapons that will ignore the missile defence shield. But I digress again, so I will not dwell much on the finer points of his solution, only to point out that he is conceiving the situation too narrowly. 

The Balance: 

In his article ostracising this disguised Western aggression; President Putin is blind to the fact that he is making the mistake of relying on the narrow solution of nuclear weapons as if Russia is still the basket case of the 90s. He is still holding on to the Russian position of being very inward looking, when a well-managed outward looking policy could win Russia useful and committed global allies without breaking her Central Bank. Russia should now start thinking in terms of exporting Russian culture, ideas, art and expertise to shore up her soft power. For instance, why should Zimbabwe recognise South Ossetia if not for the reason that her ally Russia thinks it is a legitimate thing to do? If not for the reason that Zimbabwe is obliged to stand shoulder to shoulder with her ally, Russia. 

Closely related to the above is this; the major reason why it took the West just under a month to attack Colonel Gaddafi and over 1 year to even contemplate attacking Syria despite the fact that both countries were on a similar trajectory, is because Russia has assets in Syria. These assets, should they have been damaged in a West led attack, would lead to a confrontation between Russia and the United States: game, set and match if the tennis phrase can ever be used aptly in the world of high politics. NATO furthermore cannot contemplate entering Syria because this is a contested airspace, Russian made air defence missiles induce much NATO apprehensiveness.[6] 

So, if Russia can be coaxed into looking beyond the Mediterranean, Zimbabwe is within her rights to invite military to military cooperation with Russia. Why should Zimbabwe suffer the consternation of being deprived of spares to such a backward fighter jet as the BAE Hawker Hunter when Zimbabwe could be flying Sukhoi - 35s? Why should Zimbabwe feel vulnerable to air attacks when her cities can be defended by an Air Defence Brigade wielding S – 300/400 missiles. The fact of the matter is that Russia is a leader in military technologies and many other fields, if she chooses to engage the world, countries wanting to preserve their sovereignty would do well to side with the Russia of President Putin’s vision. The West should not feel too aggrieved by this posture, the message to them would be a very friendly message; should they return to a scrupulous observation of the basic building blocks of international relations; should they return to a respect for sovereignty, honest partnerships and paying the going rate for resources, there is no reason why some limited cooperation cannot still be envisaged. 

Kudakwashe Kanhutu 
BA (Hons) Conflict, Peace & Security. University of Kent, Canterbury.

School of Politics and International Relations. 

MSc Defence, Development & Diplomacy. Durham University.

Durham Global Security Institute (DGSi). 

Prospective PhD Candidate. Graduate Institute, Geneva.

Thesis: “The State and Human Security in Zimbabwe.” 

 +447721474274 

Notes:

[1] Owing to the experiences with colonialism and apartheid, this should be a founding principle of the Charter.

[2] President Putin Being Strong: National Security Guarantees for Russia, http://rt.com/politics/official-word/strong-putin-military-russia-711/ (accessed 12/04/2012).


[3] President Mbeki Dullah Omar Eighth Memorial Lecture, http://www.unisa.ac.za/contents/colleges/docs/mbeki-speech%20at%20UWC%20(2).pdf (accessed 12/04/2012)

[4] President Putin Being Strong: National Security Guarantees for Russia, http://rt.com/politics/official-word/strong-putin-military-russia-711/ (accessed 12/04/2012).

[5] BBC, Mandela Taken Off U.S Terror List, 01 July 2008, http://news.bbc.co.uk/1/hi/7484517.stm (accessed 12/04/2012).

[6] CBS News, US General: Syrian Air Defence May Be Problem, http://www.cbsnews.com/8301-202_162-57391574/u.s-general-syrian-air-defense-may-be-problem/ (accessed 12/04/2012). Also see Senator John Mcain Interview on France 24, 12/04/12 where he says if the US cannot take out Syria’s Russian air defences then the taxpayers should question why the US government is taking their taxes.