Table of Contents
A second Foreword: Everyday Human Rights Violations
Table of Cases
Chapter 1 – Introduction:
Human Rights in Foreign Policy and International Relations
I. Human Rights as a concern in international relations
II. Obstacles on the Road to enduring International Peace and Security and Universal Respect for Human Rights
III. Sovereignty and Human Rights
Chapter 2 – The First Dimension:
Peace as a prerequisite for the complete enjoyment of all Human Rights
Chapter 3 – The Second Dimension:
Massive Violations of Human Rights as a threat to international peace and security
Chapter 4 - The Third Dimension:
The use of force against other states for the protection of Human Rights
I. Introduction: The General Prohibition of the Use of Armed Force
II. Current possibilities for responses to atrocities
1. UN Security Council: Chapter VII
2. UN General Assembly: Uniting for Peace
III. The emerging concept of Humanitarian Intervention outside the UN framework - Legal, Moral and Political Considerations
a) What is Humanitarian Intervention ?
b) Humanitarian Intervention in the past and today
c) Political and Legal Considerations on Humanitarian Intervention de lege lata and de lege ferenda
2. Political and moral aspects of Humanitarian Intervention
3. The legality of Humanitarian Intervention under current International Law
a) State sovereignty and Art. 2 (4) UN Charter
b) Justification under already existing rules of international law ?
aa) Justification under the UN Charter ?
bb) The position of the International Court of Justice
cc) The concept of reprisals as legal ground for a justification of Humanitarian Interventions under international law
dd) A "state of necessity" as the justification for Humanitarian Intervention
ee) Customary Law: Humanitarian Intervention in state practice after
ff) Conclusion: The need for legal reform
4. The emerging concept of Humanitarian Intervention: criteria for the legality of Humanitarian Intervention
a) The need for criteria and the possibility to find them
b) Massive and systematic Human Rights violations
bb) Crimes against humanity
cc) War crimes
dd) Feasibility of a wide acceptance of the "Article 5 - solution"
ee) Effectiveness of the Article 5 - solution
c) Failure of peaceful means of Human Rights enforcement
d) Failure of the UN Security Council
e) Failure of the UN General Assembly to act
f) Multilateralism and state interests
g) Respect for Human Rights and International Humanitarian Law
A proposal for a general procedure for the enforcement of Human Rights
Chapter 5 – Conclusions
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 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.
A second Foreword: Everyday Human Rights Violations
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. 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.
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. The international community did nothing to stop the Rwandan genocide which only ended after the military victory of the Tutsi Rwandan Patriotic Front.
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.
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 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. 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.
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.
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.
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.
Indonesian police and company security forces are responsible for persistent human rights abuses against indigenous communities involved in the massive pulp and paper industry in Sumatra. Abuses include land seizures without compensation and brutal attacks on local demonstrators.
India and South Asia
More than 240 million people in South Asia live a precarious existence, shunned by much of society because of their ranks as “untouchables” or Dalits at the bottom of a rigid caste system. Dalits are discriminated against, denied access to land, forced to work in slave-like conditions, and routinely abused, even killed, at the hands of the police and of higher-caste groups that enjoy the state's protection. Dalits in India may not cross the line dividing their part of the village from that occupied by higher castes. They may not use the same wells, visit the same temples and churches, drink from the same cups in tea stalls, or lay claim to land that is legally theirs. Dalit children are frequently made to sit in the back of classrooms, and communities as a whole are made to perform degrading rituals in the name of caste. Dalit women are frequent victims of sexual abuse.
In what has been called Asia's hidden apartheid, entire villages in many Indian states remain completely segregated by caste. Caste-based abuse is also prevalent in Nepal, Sri Lanka, Bangladesh, Pakistan, Japan, and several African states. Over 100,000 cases of rape, murder, arson, and other atrocities against Dalits are reported in India each year. Given that Dalits are both reluctant and unable (for lack of police cooperation) to report crimes against themselves, the actual number of abuses is presumably much higher. India's own agencies have reported that these cases are typically related to attempts by Dalits to defy the social order, or demand minimum wages and their basic human rights. Many of the atrocities are committed by the police. Even perpetrators of large-scale massacres have escaped prosecution. The labor situation for Dalits is beyond comprehension: An estimated forty million people in India, among them fifteen million children, are bonded laborers, working in slave-like conditions in order to pay off a debt. A majority of them are Dalits. According to government statistics, an estimated one million Dalits are manual scavengers who clear feces from public and private latrines and dispose of dead animals; unofficial estimates are much higher, while the sexual slavery of Dalit girls and women continues to receive religious sanction. Under the devadasi system, thousands of Dalit girls in India's southern states are ceremoniously dedicated or married to a deity or to a temple. Once dedicated, they are unable to marry, forced to become prostitutes for upper-caste community members, and eventually auctioned into an urban brothel. The Indian government has consistently attempted to sabotage the efforts of Indian NGOs to raise awareness of the caste struggle at preparatory meetings in the lead-up to WCAR. The situation of Dalits stands alone as the only issue to have been systematically cut out of the conference's intergovernmental process so far.
In France, hostility toward Jews has led to a particularly serious wave of attacks which go largely unanswered by the French police which last year recorded 395 anti-Semitic incidents between 29 March and 17 April, 63 percent of which involved anti-Semitic graffiti. Between 1 January and 2 April, 34 "serious anti-Semitic actions" were recorded; e.g. attacks on Jewish persons or property, including synagogues and cemeteries. In April, several synagogues, in Lyon, Montpellier, Garges-les-Gonesses (Val d'Oise) and Strasbourg were vandalized, while a synagogue in Marseille was burned to the ground. In Paris, a crowd threw stones at a vehicle transporting pupils of a Jewish school, and the vehicle's windows were broken. The authorities are now investigating these attacks.
In the UK, at least 48 attacks on Jews were reported in April 2002, compared with 12 in March, seven in February, 13 in January and five in December 2001. Some of the assaults resulted in the hospitalization of victims with serious injuries. Reportedly, the victims were mainly orthodox and Hassidic Jews. In an April attack on a London synagogue, a swastika was scrawled on the lectern.
In Belgium, synagogues in Brussels and Antwerp were firebombed in April 2002; the facade of a synagogue in Charleroi was sprayed with bullets. A Jewish bookshop and delicatessen in Brussels were destroyed by fire. Criminal investigations have been opened in these incidents, as well as into a physical assault on the Chief Rabbi of Brussels in December 2001. Indonesia
Largely forgotten by the international community, Indonesian Forces continue extrajudicial killings, torture and other massive and systematic human rights violations in the breakaway-province of Aceh.
The situation in Tibet has reached its worst point in decades, while western nations appear to support the Chinese government due to recent economic changes which are opening the enormous Chinese market to foreign firms. Currently, the Chinese government is engaged in a crackdown on Tibetans living in the Lithang area of Kham, eastern Tibet. On January 26, 2003, despite intense international pressure, the Chinese government executed Lobsang Dhondup, a 28-year old Tibetan, and upheld the death sentence of Tenzin Delek Rinpoche, an influential Buddhist leader. This was the first execution of a Tibetan for political crimes in 20 years. Arrests and torture continue in connection to this case.
– Different cases of human rights violations from the last years. In all cases, the results for the victims are disastrous. But yet the cases differ. First of all, it seems to make a difference to outsiders, whether or not Human Rights violations occur systematically or are of a very grave nature. Some violations of Human Rights might even have the effect of destabilizing the international community and posing a threat to international peace and security. Such violations are the starting point for our examination of the role Human Rights play when it comes to international peace and security: The Human Rights Dimension of International Peace and Security.
It is the aim of this book to examine, how the needs for respect for Human Rights and for international peace and security can be reconciled under international law. The core of this examination will focus on the question of the legality of the use of force for the purpose of protecting human Rights by asking i.a. when do violations of Human Rights constitute a threat to international peace and security and which responses from the international community to massive violations of Human Rights are possible, which are effective, which are legal under international law and which effect can they have on international peace and security ? Special attention will be given to the case that the UN Security Council fails to take action – a second look at the examples of Human Rights violations given above reveals that all five permanent members are violating Human Rights to one extend or another and therefore can have in interest in forestalling action by the UN Security Council.
We will examine different Human Rights dimensions of international peace and security, ranging from the obvious to the highly controversial, from brief looks to in-depth examinations in order to find out, how international law can allow us to reconcile the need for peace with the need for universal respect for Human Rights. But before, it is necessary to have a look at the role Human Rights play nowadays in international law and international relations.
That Human Rights have indeed become a valid concern in international relations during the time since the end of World War II, has been made clear at the latest when the UN Security Council established war crimes tribunals in The Hague and Arusha, finally ushering in an era, which has the chance to shift from "a culture of impunity to a culture of accountability"
 Global Exchange (Human Rights NGO), Operation Gatekeeper, http://www.globalexchange.org/education/ california/DayOfTheDead/gatekeeper.html (last visited 18 April 2003).
 Boutros Boutros Ghali, Introduction, The United Nations and Rwanda 1993 – 1996, 1st ed., Department of Public Information, United Nations, New York, 1996, p. 4.
 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.
 Holzgrefe, ibid.
 Human Rights Watch, European Court to hear Chechen suits against Russian Army,
http://www.hrw.org/update/2003/01.html#9 (last visited 14 April 2003).
 http://news.bbc.co.uk/onthisday/hi/dates/stories/february/12/newsid_2540000/2540849.stm - 17 April 2003.
 http://news.bbc.co.uk - 17 April 2003.
 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).
 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).
 Human Rights Watch, Without Remedy: Human Rights Abuse and Indonesia`s Pulp and Paper Industry, HRW Reports, Vol. 15, No. 1 (C), January 2003, Washington: Human Rights Watch, 2003.
 Also referred to as „Sikkaliars“.
 Human Rights Watch, Caste: Asia`s Hidden Apartheid, http://hrw.org/campaigns/caste/presskit.htm (last visited 20 April 2003).
 Human Rights Watch, Broken People: Caste Violence Against India's "Untouchables", http://www.hrw.org/reports/1999/india/index.htm (last visited 19 April 2003), Chapter I.
 Human Rights Watch, Broken People: Caste Violence Against India's "Untouchables", ibid., Chapter VII.
 Indian Government Tries to Block Caste Discussion, Human Rights Watch press release, February 2001, http://www.hrw.org/press/2001/02/india0222.htm (last visited 20 April 2003); End Global Caste Discrimination, Human Rights Watch press release, March 2001, http://www.hrw.org/press/2001/03/caste0321.htm (last visited 20 April 2003).
 Human Rights Watch, Western Europe: Rights Groups Condemn Racist and Anti-Semitic Violence, http://hrw.org/press/2002/05/europe0510.htm (last visited 20 April 2003).
 Human Rights Watch, Indonesia: The War in Aceh, Chapter V. Abuses by Indonesian Security Forces, http://www.hrw.org/reports/2001/aceh/indaceh0801-04.htm#P250_45140 (last visited 19 April 2003).
 Please note that the examples can cover only a small portion of the violations in the respective countries and that in many cases there are more severe violations in the same nations.
 Holzgrefe, p. 17.
 Title of a conference held in Utrecht (The Netherlands) in November 2001 by United Nations University and the Netherlands Institute of Human Rights (SIM).