Excerpt
INTERNATIONAL LAW RELATED TO HUMAN SECURITY IS ADEQUATE TO ADDRESS MODERN CHALLENGES
TEMILOLUWA LAWAL
Humanity's duty to protect human security interests in both conflict and non-conflict situations is deemed essential. Accordingly, the need for a comprehensive and inclusive International legal framework on human security is justified. In the wake of the security issues that we have been confronted with in the past and those that continue to threaten our concerted safety, deliberations surrounding the adequacy or otherwise of International law related to human security vis-à-vis modern challenges are inevitable. Regarding the actual question on whether International law related to human security is adequate to address modern challenges, I argue in the affirmative, albeit partially. While I believe that International law in this area can certainly be improved upon as law, in general, is a dynamic phenomenon, it would be erroneous to assert that the laws are not adequate to address modern challenges to a considerable extent. In support of my position, I aim to advance the perspective that in matters concerning international human security law, we must draw distinctions between ‘adequate/adequacy’ and ‘application.' Whereas 'adequate' means "sufficient for a specific need or requirement."1 On the other hand, 'application' means "an act of putting something to use."2 It is my view that though international law is generally sufficient to address modern challenges, actions taken by international actors to tackle human security issues are usually unpredictable. 'Law,' being an institutional fixture, is enacted to ensure predictability and uniformity, and international law should be no exception. However, international actors are generally inclined to think and act otherwise. It is one thing to develop laws, and it is an entirely different matter to apply them. In further support of my position, I also seek to present the view and necessary evidence that the application of international law related to human security is majorly dependent on State policy and not the adequacy or otherwise of the law. The preceding position(s) shall be amplified with the aid of eight (8) selected and relevant case studies.
The United Nations Security Council (UNSC) Authorization and the responsibility to protect (R2P) doctrine of United Nations (UN) call for serious concern. In furtherance of the UN’s objective to maintain international peace and security,3 the Security Council was established.4 Composed of 15 members, the Council derives its powers from the Charter of the United Nations.5 i.e., In addition, and owing to humanitarian crises in Somalia, Bosnia and Herzegovina, Rwanda, Kosovo, and Darfur,6 the 'responsibility to protect.'7 was formed as a three-pillared doctrine to address the ‘mass atrocity crimes’8. In essence, the first pillar is hinged on the fact that, first and foremost, the responsibility to protect the citizenry rests with the State, which remarkably shows that the doctrine is firmly rooted in the international law principle of State sovereignty. The second pillar calls for international assistance and capacity-building by the international community in response to populations in need of help before other crises break out. This provision essentially applies to States that are willing but unable to protect. Finally, the third pillar is aimed at swift and decisive responses, especially when there is a total security breakdown.9 Through the Council, the international community takes necessary actions to prevent mass atrocity crimes when the State has failed to protect its citizens and especially when prevention through peaceful means proves abortive. Thus, in matters concerning international intervention in conflict situations, enormous powers have been bestowed on the Council. In some cases, the Organ is expected to authorize the use of force, depending on the severity of the case in question.10 Unfortunately, instead of discharging its duties in good faith and per the provisions of the UN charter, the United Nations' principal Organ for the maintenance of international peace and security is seen as an increasingly anachronistic body, which neither represents nor serves global interests credibly. Instead, it risks becoming a fig leaf designed to cover up the naked exercise of power by its five veto-wielding permanent members.11 The members of the P5 are especially notorious for cherry-picking allies and are always prepared to veto any resolutions or potential interventions that would prove detrimental to their national interests. Zifcak mirrors in on this with an examination of Security Council interventions in Libya and Syria. He notes that while the R2P doctrine could be seen as successful in the Libya case, the same cannot be said of Syria.12 The situations in both Countries could be termed critical, but the Security Council took different approaches. While the Council was swift to respond in the Libya case, stumbling blocks were met in the Syria case due to reservations from Russia and China. Accordingly, arguments about the volatility of Syria, being a strategically placed country in the Middle East, lack of an outright declaration of war on the opposition by the Syrian government, and Russia's close relations with the Syrian government were put on the table.13 In addition, the P5 States are constantly perceived as enablers of conflict. This anomaly is a big stain on the integrity of the Council. For example, France’s provision of arms to the Rwandan government during the Rwandan genocide claimed millions of lives.14 Arguments have been made that the veto powers of the P5 should be abolished to ensure equality within the Council.15 While I partly agree with the preceding argument, I believe that the core sense of duty to the UN, and the world at large, to maintain peace and security has been sacrificed for the self-serving interests of the members of the Council. The provisions of the UN charter and the R2P doctrine are clear and adequate. The application of the laws should be made objectively, considering all material facts without prejudice, something which the Council has thus far failed to achieve. The use of force by invitation also calls for examination. It follows from Article 2(4) of the UN charter.16 that;
"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the Purposes of the United Nations."
Thus, the international law principle of State sovereignty prohibits the use of force by a State or another. The general rule is also supported by relevant case law.17 An exception obtains when a State permits another State to do so. Though this exception is not backed by any single codified document, customary law18 and the Vienna Convention on the law of treaties19 which takes into account, any subsequent agreement between parties concerning treaties has always been invoked.20 State invitation has been utilized in some cases. These include actions taken by the US and the UK against the Islamic State of Iraq and the Levant (ISIL) in Iraq, based on the invitation of the Iraqi government.21 Despite the relative success of using force by invitation, there are identifiable pitfalls that require immediate attention. Using interventions in Pakistan, Yemen, and Somalia as case studies, Byrne engages with these issues by amplifying the core elements of consent as a lex generalis, based on the Draft Articles on State Responsibility (DASR) and the accompanying commentary from the International Law Commission (ILC).22 Thus, consent must be valid, the legitimate government must give it, and a requisite official must give it. On the question of validity, it follows from the ILC commentary that;
“… consent must be freely given and clearly established. It must be actually expressed by the State rather than merely presumed on the basis that the State would have consented if it had been asked. Consent may be vitiated by error, fraud, corruption or coercion.”.23
Mary Ellen O’Connell24 has advanced the need for public consent, a view which I share as this would effectively eliminate the risks of future denial, as in the case of Pakistan and the US.25 The issue of government legitimacy is quite tricky as it is occasionally arduous to ascertain legitimate governments in the face of conflict situations, as seen in Yemen.26 Even when legitimacy is ascertained, the question of “effective control comes into question, as seen in the Pakistan case.27 On the issue of consent by the appropriate officials, it is perhaps advisable to employ the provisions of the Vienna Convention, which provides that "officials considered to represent a state without the need for full powers are heads of state, heads of government and ministers for foreign affairs."28. According to Byrne, "One may therefore reasonably conclude that consent to foreign intervention can be given by one of these three officials, due to the nature of the act carried out."29 International law in this regard can be seen as reasonably adequate, even though it is heavily reliant on customs. Considering the fragility of the issue, the codification of the law on the use of force by invitation is due, especially as pitfalls may be encountered during application. In addition, the willingness of states to apply this law is heavily dependent on state policy and not necessarily because they see the need to comply with international law. For example, the US’ reputation as a State, perpetually in war,30 puts her in a position where resisting an invitation to use force would be quite challenging to decline. The prior case studies lead me to the discussion on professional responsibility, another case study that demonstrates that international law is only attractive to most States, as long as it does not tamper with National interests and policy. Accordingly, and quite understandably, States always seek to protect their interests by turning to professionals (usually legal). Markovic,31 while addressing professional responsibility emphasizes the dangers of proffering the wrong policies and advice as States will always act on professional advice more often than not.32 The Author addresses the so-called ‘torture memo’ written by John Yoo and Jay Bybee, the then legal advisers to the Bush Administration. He observes thus;
“I argue that whether or not Yoo and Bybee wrote the memorandum in good faith, the enterprise in which they were involved providing legal cover for the abuse of detainees-was morally hazardous…I argue that there are some ends toward which lawyers should not direct their talents or energies, and sanctioning the mistreatment of human beings is one such end. When lawyers facilitate the degradation and torture of detainees, they can justifiably be held accountable”.33
Not only did the memo show a lack of moral duty and decency to uphold the integrity of the legal profession, but it also demonstrated a blatant disregard for international law, which is clearly against torture and inhumane treatment.34 Do we then say that international law was insufficient simply because the policymakers ignored it? Certainly not. The execution of Joachim von Ribbentrop, following a decision at the Nuremberg trials,35 in the aftermath of the fall of Nazi Germany shows that professionals, like Yoo and Bybee, complicit in the carrying out of criminal policies by States, are liable to be held responsible. On this note, Articles 25(3)(c) & (d) of the Rome statute36 are relevant. The law is adequate and wide enough to accommodate individuals acting in a professional capacity. Markovic adds37 that the International Criminal Court (ICC) or the Court of any party to the Convention Against Torture (CAT)38 remain the appropriate venues for prosecution. The fact that the US is not a party to the ICC is irrelevant because nationality is only one basis for the Court's jurisdiction. The CAT prohibits complicity in torture, whether by a lawyer or any other agent, irrespective of domestic law.39 Unsurprisingly, the US has been quite reluctant to examine the role of policymakers such as Woo and Bybee regarding the abuse and torture of detainees, though the case of Hamdan v. Rumsfield40 shows that it could happen in the future. While I agree with Markovic concerning the prosecution of policymakers in the ICC, I am skeptical about prosecution at the Court of "any party" to the CAT, as it opens the door to unnecessary controversies among States.
The importance of International law regarding international and non-international armed conflicts cannot be overemphasized. In this regard, reference must be made to the Geneva Conventions,41 and the Additional Protocol II to the conventions.42 The Geneva Conventions are considered a landmark legal framework. They are quite broad and accommodating of issues such as the protection of wounded and sick soldiers and the protection of prisoners of war. However, the most significant criticism of the conventions has been its failure to address non-international armed conflicts.43 This was covered in Protocol II.44 but the previous provision merely succeeded in defining non-international armed conflicts and addressing protective measures for civilians in non-international armed conflicts. Perhaps the biggest argument in relation to these laws is the call for harmonization of international and non-international armed conflicts, as most conflicts we have today are non-international. While I agree that international law in relation to non-international armed conflicts should be improved upon, I am inclined to digress on the need for harmonization for obvious reasons, with all incidents contemplated and clearly defined. In addition to the question of interference on State sovereignty by international law, granting combatant status to belligerents would prove to be counter-productive. This will leave room for more civilians getting caught in the crossfire. Even worse, no one would be held responsible due to the protection afforded to combatants by the Geneva Conventions. I side with Claus Kreß and Frédéric Mégret45 on their view that any improvement of international law regarding non-international armed conflicts must be made from a humanitarian perspective and with a view of protecting civilians. The regulation of non-international armed conflicts would be quite tricky due to State sovereignty and unpredictable State policies; and until international law in this area is improved upon, UN Security Council intervention46 remains the most realistic means of regulating non-international armed conflicts. Elsewhere, the fast-paced growth of technology means that arms and weapons of war will only get more sophisticated, enter Autonomous Weapons Systems (AWS)/Killer Robots. Though not in full-scale use yet, killer robots are in the development stages in certain States;47 Furthermore, there has already been a clamor for its ban.48 Currently, in terms of regulation, reference can be made to the Additional Protocol I (1977) to the Geneva Conventions 1949,49 and the Rome Statute.50 Though parties' liberty to a conflict to choose means and weapons of warfare is not unlimited, proper construction of Protocol I reveals that the International Humanitarian Law principles of distinction, precaution, and proportionality must be respected. Thus, killer robots must be predictable and reliable. It also follows that;
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1 Merriam-Webster; Adequate. In Merriam-Webster.com dictionary. Accessed May 15, 2021, from https://www.merriam-webster.com/dictionary/adequate
2 Merriam-Webster; Application. In Merriam-Webster.com dictionary. Accessed May 15, 2021, from https://www.merriam-webster.com/dictionary/application
3 United Nations, Charter of the United Nations, Oct. 24, 1945, 1 UNTS XVI, Article 1
4 Ibid, Article 7 (1)
5 Ibid, Article 24(1)
6 Carsten Stahn, Carsten Stahn, 'Responsibility to Protect: Political Rhetoric or Emerging Legal Norm'
(2007) 101 Am J Int'l L 99, p.99
7 International Commission On Intervention and State Sovereignty, The Responsibility To
Protect, at VII (2001)
8 Genocide, War Crimes and Crimes against Humanity
9 Ibid, footnote 7
10 Ibid, footnote 3, Article 41
11 M. Paterson and K. Virk, “Africa and the UN Security Council 2013 CCR, Available at http://www.jstor.com/stable/resrep05138.7 accessed Mar. 24 2021
12 Spencer Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13 Melbourne Journal of International Law 59–93
13 Ibid
14 Jina Moore, ‘Rwanda Accuses France of Complicity in 1994 Genocide’ New York Times (New York, Dec. 13, 2013), Available at https://www.nytimes.com/2017/12/13/world/africa/rwanda-france-genocide.html accessed May 15, 2021
15 Jan Wouters and Tom Ruys, 'Security Council Reform: A New Veto for a New Century'
(2005) 44 Mil L & L War Rev 139, pp. 154-156
16 United Nations, Charter of the United Nations, Oct. 24, 1945, 1 UNTS XVI
17 Nicaragua v United States of America merits 1986 ICJ Reports 14
18 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1
19 United Nations, Vienna Convention on the Law of Treaties, May 23, 1969, United Nations, Treaty Series, vol. 1155, p. 331
20 Ibid, Articles 31(1)(3)
21 Max Byrne, ‘Consent and the Use of Force: An Examination of ‘Intervention by Invitation’ as a Basis for US Drone Strikes in Pakistan, Somalia and Yemen’ (2016) 3:1 Journal on the Use of Force and International Law 97–125, p. 12
22 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries
(2001), General Assembly Official Records 56th session, supplement no 10 (A/56/10)
23 Ibid, Art 20, para 6
24 Mary Ellen O’Connell, ‘Unlawful Killing with Combat Drones’ (2010) Notre Dame Law School Research
Paper, 18
25 BBC, ‘Secret Memos “Show Pakistan endorsed US Drone Strikes”’ (2013), available at https://www.bbc.com/news/world-asia-24649840 accessed May 15, 2021
26 Ibid, footnote 20, pp. 112-115
27 Ibid, footnote 20, pp. 110-112
28 Ibid, footnote 19, Article 7(2)
29 Ibid, footnote 21, p. 117
30 Derek Gregory ‘The Everywhere War’ (2011) The Geographical Journal, Vol. 177, No. 3, September 2011, 238–250; p. 238
31 Milan Markovic, ‘Can Lawyers Be War Criminals?’ (2007) 20 Georgetown Journal of Legal Ethics 347–369.
32 Ibid
33 Ibid, p. 349
34 UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, United Nations, Treaty Series, vol. 1465, p. 85
UN General Assembly, Universal Declaration of Human Rights, Dec. 10, 1948, 217 A (III); Article 5
UN General Assembly, International Covenant on Civil and Political Rights, Dec. 16, 1966, United Nations, Treaty Series, vol. 999, p. 171; Article 7
35 1946 22 IMT 203
36 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), Jul. 17 1998
37 Ibid, footnote 31, p. 350
38 See Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, S. TREATY Doc. No. 100-20 (1988), 1465 U.N.T.S. 85
39 Ibid
40 126 S. Ct. 2749,2796 (2006)
41 International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), Aug. 12, 1949, 75 UNTS 31;
International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), Aug. 12, 1949, 75 UNTS 85; International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), Aug. 12, 1949, 75 UNTS 135; and International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Aug. 12, 1949, 75 UNTS 287.
42 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Jun. 8, 1977, 1125 UNTS 609
43 Marco Sassòli, ‘Can the Legal Framework Applicable to Internment in IAC be Replicated in NIAC?’ in Carl Marchand and Gian Luca Beruto (eds), The Distinction between International and Non-International Armed Conflicts: Challenges for IHL, 38th Round Table on Current Issues of International Humanitarian Law (Sanremo, 3rd–5th September 2015) (Geneva: International Institute of Humanitarian Law, 2016)
44 Ibid, footnote 42
45 Claus Kreß and Frédéric Mégret, ‘The Regulation of Non-International Armed Conflicts: Can a Privilege of Belligerency Be Envisioned in the Law of Non-International Armed Conflicts?’ (2014) 96:893 International Review of the Red Cross 29–66
46 Ibid, footnote 36, Article 15 ter
47 For example, UK's Taranis (Raptor) Drone, Israel's Iron Dome, and Harpy Drone, and the US's THAAD
48 Campaign To Stop Killer Robots; Available at https://www.stopkillerrobots.org/learn/ Accessed on May 15, 2021
49 International Committee of the Red Cross (ICRC ), Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Jun. 8, 1977, 1125 UNTS 3
50 Ibid, footnote 36.