22 Jus Post Bellum and Human Rights – Part II

Rohini Sen

Learning Outcome

Pursuant to the previous chapter , this chapter will look at the relevance of jus post bellum. The students will be introduced to the four major areas within the concept of jus post bellum. Further, the module seeks to ask and understand if human rights should be a part of human rights.

I. Relevance of jus post bellum

Take a thorough look at the world around you. Recent events have shown the world that winning wars is easy. The real challenge lies in winning peace. The violence perpetrated is so massive that the divide between war and peace no longer exists.

Jus Pos Bellum, Latin for “just after war”, consists of four major areas:

• Occupation
• Use of force
• Detention
• Criminal justice

1. Occupation:

The two treaties governing this are the – The Hague Regulations of 1907 and the Fourth Geneva Conventions of 1949. Initially, the rules were designed in a manner to prevent the occupier from introducing any drastic change. This meant that the occupier couldn’t consolidate any claim to the territory. It is necessary to take steps to maintain law and order in the territory and ensure protection of his own troops at the same time.

This conservationist principle extended into the Fourth Geneva Convention, only to be riddled with problems. If a principle faced problems as early as 1945, it is obvious that it wouldn’t be able to serve its purpose in the 21st century.

Now, the UN Charter declared war as illegal. The use of force is limited only to self-defence. An operation can be conducted only under a UN mandate. The traditional law of occupation, therefore, is ineffective.

For instance, let’s look at the 2003 intervention in Iraq. There was a heated debate about the legality of the intervention. The contention was that, it was conducted without a UN authorization. There was reluctance to allow the Coalition Provisional Authority a free hand in the reconstruction of Iraq. Yet, reality had to be taken into account. Power could not be handed back to Saddam Hussein or the Baath Party. Given this situation, economic and political reconstruction of Iraq was hard. The situation in Iraq desperately required the establishment of a very conservationist legal regime.

The UN Security Council sought to create a framework where the Special Representative of the Secretary-General would act in collaboration with the Coalition Provisional Authority. His role was to assist the people of Iraq to undertake changes in the Iraqi infrastructure. This went far beyond what might be permitted under a conservationist approach.

2. Use of Force: There is a distinction between the authority for the use of force within armed conflict and outside it. In an international conflict, the decision on whom and what can be attacked is status based.

During peace, the use of force is much more restricted. It is based on self-defence and is dependent on threat. The force used cannot be more than necessary to counter the threat faced. This is in accordance with human rights law.

However, the divide between war and peace is no longer as clear. The authority governing the amount of force that can be used has also clarity.

Rules of engagement seek to bridge that gap by giving soldiers clear instructions as to when they can open fire. However, the Rules of engagement are not the law, since they reflect political and military factors. For instance, during an international armed conflict, the military may be manning a checkpoint way behind the front line. The Rules of Engagement may restrict the soldiers so that they can only open fire in self-defense. However, under international law, enemy combatants can be directly targeted.

Not all cases are this distinct. There are cases where a combatant is not a soldier, but a civilian taking a direct part in the hostilities. Such civilians lose their protection and can be targeted. They are targeted because of their status and not the threat that they pose.

A civilian who attacks military personnel with rocks or even sticks during an international armed conflict is liable to be shot dead. There is no obligation on the troops to try to disarm him or her or to capture.

It is clear from these situations that, what is legal and what is sensible are two different subjects. The actors on the battlefield and the battlefield it itself is changing. Soldiers are now involved in post-conflict situations where the international rules are NOT clear. Some of the pertinent questions include: What is the entitlement to use force during a period of occupation? Do combat rules apply or have we moved to a more threat-based regime? What happens in cases where the combat operations have come to and end, but violence persists? Can the International Covenant on Civil and Political Rights even apply in situations where troops are operating outside their national boundaries?

3. Detention

The rules of detention are relatively clear. The treatment of prisoners of war was laid down during the third and fourth Geneva Conventions of 1949. These rules cease to have effect outside armed conflict and occupation.

All prisoners of war are to be released at the end of active hostilities. In reality, this is not so simple. War and peace do not have such clear boundaries. People do not cease to be a risk just because active hostilities have ceased. This problem is further compounded by the absence of a criminal justice system in the post-conflict zone.

For instance, in Kosovo, Serbs had administered the justice system. The incoming NATO forces found almost complete absence of judges, police and lawyers. The law itself was in question, as Kosovo Albanians were unwilling to accept Serb-imposed laws. In Afghanistan, there is a dearth of trained personnel. Further, most of the infrastructure has been damaged.

Foreign help may be required in such situations. However, how should these troops react when human rights standards cannot be adhered to? For instance, in Afghanistan, detention facilities do not comply with basic human rights requirements. The country has no money to pay for new facilities. Given the scarcity of resources, the government has to meet more pressing needs of the civilian population with the little money that they have.

How do coalition forces deal with this problem? If they hand over detainees to unsatisfactory Afghan facilities, they will be open to criticism. Further, they might be in breach of their own human rights obligations. On the other hand, if they seek to hold the detainees themselves, there are further issues as to authority and different human rights obligations may arise.

4. Criminal Justice

Linked to but separate from the detention issue is that of criminal justice as a whole. The rule of law is one of the most important areas in any post-conflict scenario but the most difficult to achieve. As has been seen when considering detention issues, the legal framework of the country or area concerned is likely to be fragile, if it exists at all.

Criminal justice in a post-conflict situation can be divided into two parts – Transitional justice and contemporary justice.

Transitional justice looks back and seeks to redress past wrongs. There is a constant pressure between the interests of peace and justice. The pressure on peace negotiators to agree to amnesties of some sort is enormous. The tyrant will cling to the power and the immunity that comes with it. Look at the case of Uganda. There appears to be a possibility of peace. However, Uganda is looking to withdraw the referral of the Lord’s Resistance Army to the International Criminal Court. This is because, Joseph Kony and his lieutenants are not going to hand themselves over to the Ugandan authorities, if they know that they will be immediately transported to The Hague and placed on trial for war crimes.

The conundrum that transitional justice poses has led to the formation of the International Tribunals in the former Yugoslavia and Rwanda. But these tribunals can deal with very few cases. Therefore, a vast majority of cases will have to be dealt locally through the courts. But local courts and lawyers will not be capable of handling such cases, especially in a post-conflict situation, without substantial international help.

II. Are human rights a part of the jus post bellum? Should they be?

Introduction

Post conflict-administration raises the question as to whether and to what extent human rights law has a role to play in the applicable legal framework. Some of the pertinent questions include, the applicability of human rights norms in extra-territorial post bellum situations.

Key issues at stake

1. Should human rights law apply?

Most of the debate is centred upon whether human rights law should have extra-territorial application. One of the main critiques suggests that this question ought to analyse the law as it should be rather than the way it is. It is crucial to analyse the existence and nature of the law critically. This analysis will serve as a basis to understand how the law should change.

Even if the focus is exclusively on the law, it is important to evaluate whether the law should apply in such situations. For instance, treaty interpretation, requires a consideration of the object and purpose of the instrument in question.

This form of enquiry is significant in issues where the provisions are unclear on the face it. The need of the hour is to take a clear, consistent and unified position. With regard to this, the cases and other authoritative commentary provide only limited assistance. State practice is not particularly helpful, either.

Normative questions that seek to answer questions related to post jus bellum and human rights have various aspects. These concern issues of principles and their practicality. Some of the issues are listed here:

• The idea of the Social Contract: Members of the community trust the State to protect their rights through the law. This provides legitimacy for the State. Communities have traditionally been identified on the basis of nationality. Contractual theories do not address the requirements of justice when members of the community interact with people who are not a part of the community.
• Right of self-discrimination: One of the main question here is whether it is compatible with the right of the foreign state’s own human rights obligations to be imposed on the population of the occupied territory.
• Rule of law: The principle of rule of law is at the heart of arguments. This is because, the basic question of whether human rights law should apply or not brings up various practical issues. For example, does one of the key elements for permissible derogations in the main human rights treaties on civil and political rights that states there is a war or public emergency threatening the life of the nation only apply to domestic emergency situations, thereby preventing the state from being able to enter derogations in relation to its activities abroad? This, in turn will prevent it from taking all the measures necessary in the occupation context.

It is of course difficult to approach these issues in the abstract, since a lot of it depends on not just human rights law applies, but rather what it be required to apply. This is something which is partly mediated by the interplay between human rights law and other areas of law. This is also applicable in the context of occupation.

Methodological challenges

Like any other legal enquiry, whether human rights law has extraterritorial application depends significantly on the methodological approach one has adopted. On a broad level, a methodological choice between an originalist and teleological approach has to be made while seeking to interpret human rights treaties.

Let’s look at the European Court of Human Rights (ECHR), for example. With the ECHR, for example, is one to look only at the original purpose of the Convention on the issue, whatever that might be as the European Court of Human Rights appeared to favour in the Bankovic case concerning the NATO bombing of what was then called the Federal Republic of Yugoslavia?

Alternatively, should one also take on board the notion of the treaty articulated in the Tyrer case as a living instrument, which must be interpreted in the light of present day conditions? Is this to be regarded as a dictum, which, although not made in the context of an extraterritorial situation, should be regarded as a general principle of Convention interpretation?

What is the relevance of state practice to the enquiry? In the Bankovic case, the European Court cited the general lack of derogations entered by states in relation to certain foreign activities as being indicative of a view taken by them that treaty obligations do not apply extraterritorially to the activities in question. Drawing such a conclusion simply from this evidence is, however, difficult. It may well be that the states concerned did not consider their obligations under the Convention to apply for reasons other than the foreign locus of the acts in question.

These and other issues of policy and method feed into the key questions that need to be asked about the meaning and the scope of the law in this area.

1.3 Does it apply?

The first question about the meaning of the law is, of course, whether human rights treaties have extra-territorial application or not.

A secret memo that was prepared for the US Department of Defense in March 2003 got leaked in June 2004. The contents of that memo reported that, the US has maintained consistently that the International Covenant on Civil and Political Rights (ICCPR) does not apply outside the United States. Further, the memo also said that, its special maritime and territorial jurisdiction does not apply to operations of the military during an international armed conflict.

The statement suggests two complementary observations of non-applicability. Human Rights law does not apply in situations of armed conflict. The implication of this contention is that, the laws of war on one hand and human rights law and the other are mutually exclusive in terms of the situations in which they are applied. When one area of law is in play, the other is not. The laws of war apply in times of war and military occupation. Human Rights law, applies only in times of peace or peace-building.

The first contention is correct. The second is not tenable, given the affirmation of applicability by several authoritative sources, including the International Court of Justice (ICJ) in the Nuclear Weapons and Wall Advisory Opinions.

The Inter-American Commission of Human Rights in the Coard Case of 1999 makes a further assertion of this belief. The case was concerned with the detention of seventeen individuals by US military forces during the US invasion of Grenada in 1983. The committee stated that,

“ (While international) humanitarian law pertains primarily in times of war and the international law of human rights applies most fully in times of peace, the potential application of one does not necessarily exclude or displace the other. There is an integral linkage between the law of human rights and humanitarian law because they share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity,and there may be a substantial overlap in the application of these bodies of law. Certain core guarantees apply in all circumstances, including situations of conflict.”

Even if, then, human rights law can apply in armed conflict situations, what of the other supposed contention that it does not apply extraterritorially?

Treaties on civil and political rights do not conceived State responsibility simply in terms of the acts of State parties. For instance, in Article 1 of the Geneva Conventions, contracting parties undertake to respect and ensure respect for the Convention in ALL circumstances. Responsibility is conceived in a particular context: The State’s jurisdiction. The State is obliged to secure the rights contained in the treaty only within its jurisdiction. Thus, a State termed jurisdiction has to be established before the state act or omission can give rise to responsibility.

Reference

1. Charles Garraway, From Relevance of jus pos bellum: A practitioners’s perspective
2. Ralph Wilde, Are Human Rights Norms a part of the jus post bellum, and should they be?
3. Gary J. Bass, Jus Post Bellum. https://www.princeton.edu/~gjbass/docs/juspost.pdf
4. Carsten Stahn, Jann. K. Kleffner, Jus Post Bellum : Towards a Law of Transition from conflict to Peace, 2008 http://www.elac.ox.ac.uk/downloads/Rodin%20-%20Two%20Emerging%20Issues%20of%20Jus%20Post%20Bellum.pdf
5. Rober E. Williams, Jr., Dan Caldwell, Jus Post Bellum: Just War Theory and the Principles of Just Peace, 2006 http://faculty.pepperdine.edu/rwilliam/Jus_Post_Bellum.pdf