Stefan Kirchner ­

Human Rights and International Security ­ Humanitarian

Intervention and International Law

, 1st edition, GRIN Verlag, München / Ravensburg

(2008).

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Dedicated to the memory of

Dom Christian de Chergé

Frère Luc Dochier

Frère Paul Favre-Miville

Frère Michel Fleury

Père Christophe Lebreton

Père Bruno Lemarchand

Père Célestin Ringeard

of the Trappist Abbey of

Our Lady of the Atlas

­ Notre Dame de l′Atlas,

Tibhirine, Algeria,

martyrs for Christ, 1996.

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Preface

With the advent of Human Rights in international law, several core ideas of the

traditional system of international law have been challenged, such as the principle of

non-interference and state sovereignty, as well as the prohibition of the use of force,

especially with the decision that massive human rights violations can form a threat to

international peace and security to which the UN Security Council can respond with

measures according to Chapter VII of the UN Charter.

While at first sight a change of paradigm in international law, or in any legal system, is

not negative per se, the rules which collide with a truly effective and universal

protection of HR through international law are the very rules which form the foundation

for international peace and security, the primary reason for the existence of international

law. While international peace and security require the stability provided by the

Westphalian system, they can at the same time be endangered by massive violations of

human rights. On the other hand can Human Rights only be enjoyed in times of peace

while the Westphalian system can limit the effective and universal enforcement of

Human Rights in cases in which the UN Security Council has failed to take action under

Chapter VII.

This short book is an attempt at reconciling these needs which are at times direct against

each other, at times interlinked ones with a special focus on massive violations of

human rights which are not being addressed effectively by the UN Security Council.

To this end, we will look at the Human Rights dimensions of international peace and

security outlined above before we come to the core issue of the paper, the legality of the

use of force for the protection of Human Rights in cases in which the UN Security

Council fails to act, or, in other words, the question of in how far the need for universal

respect for human rights can overrun the need for peace, given the links between both

factors indicated above.

While the UN Security Council has gained in credibility substantially after the end of

the Cold War, a large number of Human Rights violations remain unaddressed due to

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the involvement of the five permanent members, therefore such failure, as occurred e.g.

in Kosovo and Rwanda and continues in the cases of Chechnya and Tibet needs to be

addressed.

At the end of the book will be a suggestion for a step-by-step approach regarding the

effective enforcement of Human Rights aimed at preserving international peace and

security as much as possible while at the same time taking into account national and

regional systems for the protection of Human Rights.

Because the International Court of Justice had to conclude that it lacked jurisdiction in

the Kosovo cases brought by the Yugoslavia (later Serbia and Montenegro) against

certain NATO member states, the question of Humanitarian Intervention is still open for

debate., although the 9/11 terrorist attacks and the subsequent War against Terror led to

a shift in attention by both the armed forces and international lawyers. It is the hope of

the author to provide guidelines for the future resolution of conflicts, in particular in the

wake of the 2008 Russo-Georgian War, which made the need for clear rules more

evident than ever. It is particularly pleasing that the finalization of this book coincides

with the announcement that the 2008 Nobel Prize for Peace will be awarded to Martti

Ahtisaari.

The initial idea for this project dates back to a seminar at Justus-Liebig-University in

Gießen, Germany, in 2003. Thanks are due to the organizers and participants of the

seminar, my parents and my friends.

Frankfurt am Main, 10 October 2008 S.K.

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Table of Contents

Preface 3

Table of Contents 5

A second Foreword: Everyday Human Rights Violations 7

Literature 16

Table of Cases 24

Other documents 25

Chapter 1 ­ Introduction:

Human Rights in Foreign Policy and International Relations 27

I.

Human Rights as a concern in international relations 27

II. Obstacles on the Road to enduring International Peace and Security and

Universal Respect for Human Rights 27

III. Sovereignty and Human Rights 29

Chapter 2 ­ The First Dimension:

Peace as a prerequisite for the complete enjoyment of all Human Rights 32

Chapter 3 ­ The Second Dimension:

Massive Violations of Human Rights as a threat to international peace and security 34

Chapter 4 - The Third Dimension:

The use of force against other states for the protection of Human Rights 36

I. Introduction: The General Prohibition of the Use of Armed Force 36

II. Current possibilities for responses to atrocities 36

1.

UN Security Council: Chapter VII 36

2.

UN General Assembly: Uniting for Peace 37

III. The emerging concept of Humanitarian Intervention outside the UN

framework - Legal, Moral and Political Considerations 38

1.

Introduction 39

a) What is Humanitarian Intervention ? 39

b) Humanitarian Intervention in the past and today 39

c) Political and Legal Considerations on Humanitarian

Intervention de lege lata and de lege ferenda 43

2.

Political and moral aspects of Humanitarian Intervention 44

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3.

The legality of Humanitarian Intervention under current

International Law 46

a)

State sovereignty and Art. 2 (4) UN Charter 46

b)

Justification under already existing rules of international

law ? 48

aa) Justification under the UN Charter ? 48

bb) The position of the International Court of Justice 50

cc) The concept of reprisals as legal ground for a justification

of Humanitarian Interventions under international law 51

dd) A "state of necessity" as the justification for Humanitarian

Intervention 52

ee) Customary Law: Humanitarian Intervention in state

practice after 1945 53

ff) Conclusion: The need for legal reform 57

4.

The emerging concept of Humanitarian Intervention: criteria for

the legality of Humanitarian Intervention 58

a)

The need for criteria and the possibility to find them 58

b)

Massive and systematic Human Rights violations 60

aa) Genocide 61

bb) Crimes against humanity 61

cc) War crimes 61

dd) Feasibility of a wide acceptance of the "Article 5 -

solution" 61

ee) Effectiveness of the Article 5 - solution 62

ff) Conclusion 63

c)

Failure of peaceful means of Human Rights enforcement 63

d)

Failure of the UN Security Council 63

e)

Failure of the UN General Assembly to act 64

f)

Multilateralism and state interests 64

g)

Respect for Human Rights and International

Humanitarian Law 65

5.

Conclusions 66

IV.

Conclusion:

A proposal for a general procedure for the enforcement of Human Rights 67

Chapter 5 ­ Conclusions 69

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A second Foreword: Everyday Human Rights Violations

United States

In October 1994, the United States Immigration and Naturalization Service launched

Operation Gatekeeper in an effort to move people away from the migration routes in the

San Diego Area. This operation has called for the United States Government to

dramatically increase the number of Border Patrol Agents in the San Diego sector and

has given military assistance and resources to them. A wall has been constructed which

begins in the Pacific Ocean and stretches for 14 miles. The entire northern border of

Tijuana is a wall. This strategy of militarization has moved people away from the

popular suburban migration routes in the San Diego area and forced people into harsh

and desolate areas. People who migrate to California must now attempt their crossing

through the Imperial Desert or over the Mountains that are north of Tecate. Despite the

hazards of extreme temperatures in the desert and mountains, people have not been

deterred from trying to enter the United States to find work. Due to the increased

militarization which has pushed these crossing routes into dangerous areas, the number

of migrant deaths have increased, however, people are still crossing the border at the

same rate. The death rate of the people who are migrating has risen over 600% since

1994. The rate of those who are apprehended by the INS has decreased less than 1%

during the same period. Between 1994 and 1999, over 1,500 people have died along the

entire U.S./Mexico border, with nearly a third of these deaths occurring on the

California/Baja California border.1 The situation is worsened by the fact that U.S.

border guards, as well as civilian U.S. landowners along the border have taken up the

GDR-style shooting of persons entering the U.S. from Mexico illegally.

1 Global Exchange (Human Rights NGO),

Operation Gatekeeper

,

http://www.globalexchange.org/education/ california/DayOfTheDead/gatekeeper.html (last

visited 18 April 2003).

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Rwanda

On 6 April 1994 Rwandan president Habyarimana and several high ranking government

officials were killed when their plane was attacked nearby Kigali Airport. Within ours

the Hutu government systematically attacked the Tutsi leadership and intelligentsia.

Within three months, 1 million Tutsis were shot, burned, starved, tortured, stabbed or

hacked to death.2 The international community did nothing to stop the Rwandan

genocide3 which only ended after the military victory of the Tutsi Rwandan Patriotic

Front.4

Chechnya

In January 2003, the European Court of Human Rights declared admissible six

applications from victims of the war in Chechnya against the Russian Federation - the

first such admissibility decision on applications concerning the Chechnya war. The six

applicants allege that Russian forces violated their and their relatives′ right to life in

several incidents such as bombing raids and summary executions during 1999 and

2000.5

Northern Ireland

On 12 February 1989 the solicitor Pat Finucane has been shot dead at his home in north

Belfast. The killers burst in as he was eating his Sunday dinner with his wife and three

children. Two gunmen showered him with 14 bullets and shot his wife in her legs. The

hijacked taxi the gunmen escaped in has later been found in the Protestant Shankhill

Road area. In the immediate aftermath of the killing Social Democratic and Labour

Party (SDLP) politicians have blamed junior Home Office minister Douglas Hogg for

his remarks last month about some lawyers in northern Ireland being "unduly

sympathetic" to the IRA. Pat Finucane had been involved in the defence cases for 23

2 Boutros Boutros Ghali,

Introduction, The United Nations and Rwanda 1993 ­ 1996

, 1st ed., Department

of Public Information, United Nations, New York, 1996, p. 4.

3 Nicholas J. Wheeler,

Saving Strangers: Humanitarian Intervention in International Society

, 1st ed.,

Oxford University Press, Oxford, 2000, pp. 219 et seq.; J. L. Holzgrefe,

The Humanitarian
Intervention Debate

, in: J. L. Holzgrefe / Robert O. Keohane (eds.),

Humanitarian Intervention ­
Ethical, Legal and Political Dilemmas

, 1st ed., Cambridge: Cambridge University Press, 2003,

pp. 15 - 52 , at p. 17.

4 Holzgrefe, ibid.

5 Human Rights Watch,

European Court to hear Chechen suits against Russian Army

,

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men involved with the murder of two British soldiers during an IRA funeral in the

summer of 1988. His most famous client was republican hunger striker Bobby Sands.6

On 17 April 2003 the Metropolitan Police Commissioner Sir John Stevens released a

report, the third since 1989, which was delivered to Northern Ireland Chief Constable

Hugh Orde into collusion between the security forces and loyalist paramilitaries. The

report acknowledges that military intelligence in Northern Ireland helped to prolong the

Civil War in Ireland, euphemistically referred to by the U.K. as the "Troubles" and that

informants and agents "were allowed to operate without effective control and to

participate in terrorist crimes". The latest report, called Stevens Three, found that

members of the RUC and Army colluded with the largest loyalist paramilitary group,

the Ulster Defence Association (UDA), to murder Catholics, including Pat Finucane and

student Brian Lambert two years earlier as well as that three official inquiries willfully

obstructed and misled and vital evidence was concealed and destroyed. In the past there

have been attempts to kill Sir John Stevens and in 1990 his offices were destroyed by

arson. Some of the police officers questioned in the Stevens investigation are still on

duty, although Mr. Orde immediately he was determined that there would be no

collusion under his command. Nevertheless are leading figures in the case still on her

majesty′s payroll: During the course of the latest Stevens inquiry, the activities of the

Army Intelligence Force Research Unit (FRU) were investigated. It recruited Brian

Nelson, who died only days before the report was released, as its agent at the top of the

UDA. His role was to gather information on murder targets. The head of the FRU at the

time was Gordon Kerr, who is now an army brigadier serving in Iraq. Last February,

prosecution papers were prepared relating to Brigadier Kerr and are one of 20 files that

have been sent to the Director of Public Prosecutions. The Finucane family has always

believed the security forces were involved in his murder and have dismissed the report,

demanding a full judicial inquiry. So far the investigation has only focused on the

question how far up the chain of command the collusion might have gone.7

http://www.hrw.org/update/2003/01.html#9 (last visited 14 April 2003).

6 http://news.bbc.co.uk/onthisday/hi/dates/stories/february/12/newsid_2540000/2540849.stm - 17 April

2003.

7 http://news.bbc.co.uk - 17 April 2003.

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Ivory Coast

On 15 April 2003, the UN Security Council held a meeting on the situation in Ivory

Coast, where both government and rebel forces in western Côte d′Ivoire are responsible

for massacres of civilians, rape, reprisal killings and systematic looting. Liberian

combatants fighting on both sides are committing many of the abuses directed against

the civilian population, similar to the civil wars in Liberia and Sierra Leone which have

shown the same pattern of targeting civilians. The war in western Côte d′Ivoire now

threatens a similar degree of civilian suffering.8

Pakistan

Women in Pakistan who have been raped and want the state to prosecute the case must

have four Muslim men testify that they witnessed the assault. Absent these male

witnesses, effectively the rape victim has no case. Equally alarming, if she cannot prove

the rape allegation, she runs a very high risk of being charged with fornication or

adultery, the criminal penalty for which is either a long prison sentence, including

public whipping, or, though rarely, death by stoning.9

Saudi Arabia

In Saudi Arabia in March 2002, at least 14 girls may have died unnecessarily in a school

fire because of extreme interpretations of the Islamic dress code. Members of the

Committee for the Promotion of Virtue and the Prevention of Vice interfered with

rescue efforts because the fleeing students were not wearing the obligatory public attire

(long black cloaks and head coverings) for Saudi girls and women.10

Indonesia

Indonesian police and company security forces are responsible for persistent human

rights abuses against indigenous communities involved in the massive pulp and paper

8 Human Rights Watch,

Côte d′Ivoire: Liberian Fighters Attack Civilians - U.N. Security Council Should

Take Action

, http://www.hrw.org/press/2003/04/cisc041403.htm (last visited 20 April 2003).

9 LaShawn R. Jefferson,

The War on Women

, The Wall Street Journal, 22 August 2002, available online

at http://hrw.org/editorials/2002/women0822.htm (last visited 13 April 2003).

10 ibid.

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