Non-State-Actors and Human Right Violations

TABLE OF CONTENTS

WHO ARE NON-STATE ACTORS

HORIZONTAL AND VERTICAL APPROACHES

STATES AND NON-STATE ACTORS

VIOLENT NON-STATE ACTORS

THE WORLD BANK AND INTERNATIONAL MONETORY FUND.

HOW THEN CAN NON-STATE ACTORS BE HELD LIABLE FOR HUMAN RIGHTS VIOLATIONS?

BIBLIOGRAPHY.

The preservation of Human Rights are important not just to the betterment of the lives of people in a society, but also for the development of society. The violation of human rights is almost tantamount to the destruction of society, as the society is made up of humans and every other thing revolves around the enjoyment of rights. By virtue of the laws of international human rights, there is an obligation that rests on the shoulders of the state to respect the enjoyment of peoples’ rights and ensure that they are not curtailed; to protect people from the violation of their rights and punish the perpetrators of the violations; and to implement the human rights of people by taking positive actions to encourage the enjoyment of human rights. (Akandji-Kombe, 2007)

The aim of this work is to assess the international, regional and national human rights regimes, to see whether or not non-state actors are bound by the expectations of human rights, why they are not (if they are not) and how they can be made to account for the human rights violations that their activities cause. In doing this, an assessment of non-state actors, how they are sometimes created by the state and the roles the play in society will be made. Recommendations will be made where necessary on how this important stakeholder, when it comes to international human rights, can be made to be more involved and accountable with regards to issues related to human rights.

According to Akandji-Kombe (2007) The European Court of Human Rights posited that the preservation of human rights require the performance of both positive and negative obligations. The negative obligation require that states abstain from human rights violations and the positive obligation requires that states engage in activities that will uphold and sustain the enjoyment of human rights. (Clapham, 2006)

WHO ARE NON-STATE ACTORS

Non-State Actors (NSA) is a nomenclature used to describe transnational corporations, civil society groups, international organisations (including the World Trade Organisation, the World Bank and the International Monetary Fund) in the scheme of International human rights laws and treaties. They are generally understood as referring to entities other than the state. (Clapham, 2006). Under Article 6 of the Cotonou Agreement, non-state actors refer to “…Private Sector; Economic and social partners, including trade union organizations; Civil society in all its forms according to national characteristics.” They also include terrorist organisations which are also referred to as “Violent non-state actors.” (Oktav et al, eds, 2018). Non-State Actors go by this name, to show that they are not Sovereign states as known and recognised by the international law. It is important to note that NSAs are not signatories to the treaties and conventions related to international human rights laws and therefore are technically not bound by the treaties and conventions of human rights. To buttress this situation Jochnick (2014) cited an investigation carried out by the Center for Economic and Social Rights (CESR) on the impact of Taxaco’s oil expropriations on the people in the Ecuadorian amazon. The CESR had to approach the matter from the perspective of government’s obligations under the circumstances, as the communities were continuously made to understand that they could not make human rights claims against Texaco even though the company was responsible for the damages and pollutions experienced in these communities as a result of their activities. The CESR thus had to address the matter from the perspective of government’s complicity.

HORIZONTAL AND VERTICAL APPROACHES

The enforcement of human rights can be looked at from the perspective of horizontal or vertical relationships and obligations. It is Vertical when it is the obligation of the state towards a person or persons. This would mean that in the person looks up to the state for the enforcement of his human rights. (Clapham, 2006) The horizontal relationship on the other hand presents an obligation between persons (Akandji-Kombe 2007), persons here used legally to describe both biological persons and legal persons (body corporates). This means that individuals can enforce their human rights against individual violators or potential individual violations, including the activities of non-state actors. The traditional approach of human rights however, does not focus on non-state actors, but states, who typically are state parties to the treaties and conventions. So in the enforcement of the horizontal effect of human rights, the focus would be to pursue after redress within the confines of the laws of the state and not necessarily through international laws of human rights.

It is important to note however that this traditional approach to international human rights law, where the horizontal effect of human rights and obligations is not recognised, is not consistent with the African situation. Under Articles 28 and 29 of the African Charter, private individuals owe a duty both on a positive and negative levels, towards other private individuals, including their families, their communities, their countries and Africa as a whole. Murray (2000) in recognising this, alluded to “the important roles played in the African mechanism, not just by states, but by individuals, NGOs, peoples, as well as responsibilities being owed by non-state parties to the Charter and the global community.”

STATES AND NON-STATE ACTORS

States (countries) are signatories to the treaties and conventions of human rights and to this extent are bound by the obligations to perform the responsibilities related to the respect, protection and fulfillment of human rights. They are required to take all necessary steps to make sure that Economic, social and cultural rights of the people within their borders are protected. See Article 2 of the International Convention on Economic, Social and Cultural Rights (ICESCR), 1976. This obligation of the state, as mentioned earlier, presents a two-fold duty, namely the duty to uphold and preserve human rights and the duty to resist and discourage the violation of human rights within its borders. States are usually found liable in both situations when:

1. By its own hands, it takes actions that lead to the violation of human rights. An example would include situations where a state makes policies that impose the torture of people or the starvation of people, especially the children and the vulnerable, or the intimidation of people because they disagree with the political agenda of the powers that be; or the perpetration of war crimes (like genocide, rape, et al, during a civil war). See Bosnia And Herzegovina v. Yugoslavia (1996);
2. They condone or are complicit towards the perpetration of human rights violations within its borders. This would include the refusal of government to do the needful when it comes properly scrutinizing the operations of other states or transnational corporations within its borders to ensure that human rights violations are not being perpetrated. See Velásquez Rodríguez v. Honduras, (IACtHR) (1988), paras. 172–7 where government of Honduras was found to have tolerated systematic disappearances and not investigating those incidents; and
3. They work in partnership with another state to perpetrate acts of human rights violations in that state, their own state or any other state. The Human Rights Watch (2019) indicted the United States of America (USA) for running a CIA detention Centre in Thailand which oversaw torture in 2002. It also indicted the USA for aiding and providing support to the Syrian Democratic Forces (SDF) to run and secure detention facilities in Northern Syria where the former held captive about 600 men from 47 countries who were accused of fighters or members of the Islamic State (ISIS).

In order to reduce the burden of governance on the state and increase state revenue, many countries are adopting Privatisation Policies, which have enabled the transfer and conversion of many government parastatals to private businesses. These businesses which hitherto were in the centre of government activities and lives of the citizenry usually had a lot of significance in society and with that significance came certain levels of privileges, which even though they are now private businesses, still revolves around them. Bearing in mind that these businesses are no longer state owned, it is pertinent to note that these former state agencies have now become non-state actors, and allowing them to exert the level of relevance (masked as state agencies whether as a result of the ignorance of the people or as a result of uncut privileges) they used to have when they were under the control of the state is capable of creating challenges that are capable of violating the economic, social and cultural rights of citizens. (Pieterse, 2007) In some situations, these agencies continue to be partly owned by the state, thus making them both state and non-state. In this regard, private companies benefit from the strength of government is making processes less cumbersome, even when there are dissentions and resistance from the people.

VIOLENT NON-STATE ACTORS

This category of non-state actors also referred to as Non-State Armed Actors are organisations which are not integrated in the military forces of the state and not regular parts of the state security apparatus, but are equipped and ready to use violence or the threats thereof to pursue and achieve their set objectives. They are distinct organizations and they are not answerable to the state, thereby possessing a certain level of independence and internal control when it comes to their agenda, mode of operation, resources, infrastructure, recruitment, hierarchy and chain of command. They are sometimes the brain child of the state and in situations like that, they enjoy the open or secret support of the state, whether financially, technically or administratively, depending on what the agenda of the state is at that material time. The state and state officials usually engage violent non-state actors to execute personal and state interests under cover, especially when they do not want to make their involvement public, due to complexities associated with those operations, ranging from corruption, ethnic cleansing, political ambitions, support for rebels, etc. They usually go by names such as militias, paramilitaries, mercenaries, private military companies or terrorist organisations. (Hofmann and Schneckener 2011). Clinton (2017) gave an example of how the state can engage violent non-state actors, when she spoke about the involvement of the United States in the creation and funding of Al Qaeda and ISIS, disclosing that the monster the United States is fighting today is a product of their ambitions and so the United States must continue to fund their activites in order to keep them on the leach. The impact of the activities of violent non-state actors is seen all around us today in the various acts of terrorism perpetrated all over the world leading to gross violations of all the generations of human rights. (Oktav et al, 2018)

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