Human rights have become a necessary component of peace and justice in the global order. They are an incontestable tool for the universal vision of a modern society that promises fairness and equality. The compelling normative drive of this area of law however, seems to have come to an end. Born as a reaction to the holocaust, apartheid and communism, the post-1945 development of International Human Rights law has been simultaneous and arguably interconnected with the expansion of Western ideals, such as that of democracy and economic neoliberalism. From a normative as well as an operative perspective, human rights can be claimed to be no less than a part of 20th century’s history and no more than one canon, among others, that the international community -as constituted of states, international institutions and non-governmental organisations- persistently fails to demystify.
The end of Cold War might have also been the end of history in many ways, as Francis Fukuyama envisioned it[i], but the struggle for uniformity in global order- in the form of the triptych of democracy, human rights and market capitalism- is constant. Since the 1990s, armed conflict has been one of the means to achieve this and the post-conflict domestic order has provided the space for projects of social engineering and ideological transformation. Conflicts of humanitarian intervention and the most recent ones in Afghanistan, Iraq and Libya are not only justified on the basis of human rights protection and implementation but are also followed by ambitious projects of state-building which do not differ in their substantive ends, irrespective of whether they are undertaken under the auspices of the UN or a coalition of countries. Therefore, in the post-conflict phase, it becomes a structural need of the international community to create a state entity that can be integrated into the global system and can conform to its international rules. It is essentially an “either you are in or you are out” deal. In this context, therefore, human rights have a dual role: they constitute a legitimising factor of military force- just as religion did in the 19th century- and provide the tools for ideological and institutional transformation of the state in the aftermath.
One of the most controversial issues that has been examined extensively in legal literature is the suitability of the law of occupation to regulate state-building. Although this is beyond the scope of this note, it suffices to observe that the combination of Articles 43 of the Hague Regulations 1907[ii] and 64 of the Geneva Convention IV 1949[iii] allows a wide scope of legislative transformative acts that would enhance the respect for fundamental humanitarian protections and implement law and order in the occupied territory. This may lead to progressive rules and the establishment of new institutions to meet the standards of the international community and restore the normal functions of the society.
When considering this issue in more depth, it is worthwhile noting the International Court of Justice’s (hereafter Court) approach towards the rights and duties of the occupier, as exemplified by two recent Advisory Opinions. The Court confirmed in The Wall[iv] case that although the rules of International Humanitarian Law constitute the lex specialis during a belligerent occupation, human rights law may also be applicable. Thus, it found Israel liable for acts committed in the Occupied Palestinian Territories which violated provisions under International Humanitarian Law as well as under human rights instruments, such as the International Covenant on Civil and Political Rights. More explicit is the Congo v Uganda[v] case, in which the Court remarked that the obligation set out in Article 43 of the Hague Regulations 1907 “comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. […Uganda was therefore, responsible, as an occupying power in the territory of Ituri, for] lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.”62
Apart from the Hague Regulations 1907, Geneva Convention IV and customary international law therefore, International Human Rights law is, according to the Court, an additional legal source of the obligations of the occupier. This bears the following two implications: firstly, the foreign forces must refrain from any acts contrary to human rights; secondly, they must prevent and stop any human rights violations that are caused by third actors in the occupied territory. This has been the inevitable result of the increasing relevance of human rights with the entire body of International Humanitarian Law following the original dichotomy that existed between these two branches of law.
Occupation law was drafted on the assumption that the displaced legitimate government, although temporarily not capable of exercising its authority over the occupied territory, would eventually return to power after the end of the occupation. For this reason the law ensured that its sovereign rights were not compromised, so that once the foreign forces left the territory the status quo ante bellum would be restored. This established thus, a triangular relationship between the occupier, the local population and the ousted sovereign whose dynamic determined the content of this area of law. In modern armed conflicts however, the purpose is not to return to the previous status quo, as there lie the causes of the conflict. International Territorial Administrations, state-building or regime change policies –depending on one’s preference of terms- may have different degrees of legitimacy but all share the same objectives: to create a state in conformity with the international rules and to ultimately enable the peoples to exercise their right to self-determination. The result is thus, from a normative perspective, the redefinition of the abovementioned triangular relationship which is now formed between the occupier, the population and the international community, as manifested by human rights, democracy and economic liberalism, in the post-conflict projects. Interestingly, this has also enormous implications on the application of the right to self-determination, especially its economic aspect. Its content i.e. the upper and lower limits of the spectrum of choices available to the peoples, are fashioned by the membership of the state in the international community and the latter’s rules.
It is a legal, as much as it is a political and ethical question, whether the “metal bullet” of human rights can indeed legitimize transformative occupation.
Because then we need to ask ourselves which country should be entrusted to change another’s political and social orders and which state’s system could serve as a model for such changes. The answer does not simply lie in one country with hegemonic practices or the United Nations. It lurks in the complex normative hierarchies of transnational governance that have been emerging in politics, economics and law. For Western international lawyers, this inaugurates a disaggregation of sovereign state autonomy into transnational networks[vi] and from legal formalism to legal pluralism and informal processes. This blurs the lines between the international and the national, whose ideological conflicts lead to military confrontation and are then settled in the post-conflict space.
International Human Rights law in this context has become a universal civilising force with primarily Europeanised traits and constitutes one of the values of the global order. Their political role as an ethical weapon for governments to criticise each other and act upon it with military measures has deprived them much of their legitimising value. To add on that, the previous oppressive regimes are replaced by questionable administrations that also commit human rights abuses. What however, this area of law has successfully provided, is a domestic spectrum of variety, in which, unlike authoritarian systems that concentrate all forms of power in the governmental institutions, the individual has the free space to act upon his choices – choices that have been delimited, as mentioned above, by the rules of the international processes and networks.
It is rather impossible to set an elaborate analysis of this argument in such a short note but it is hoped that it will make readers think of human rights in the context of transnational governance that has informed many aspects of our legal understanding, be it in relation to international organisations, financial institutions, development or armed conflict.
By Lisa Mardikian
University of Bristol
[i] Fukuyama, F., The End of History and the Last Man, Avon Books, 1992.
[ii] Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.
[iii] Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
[iv] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)  ICJ Rep. 136.
[v] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)
(Advisory Opinion)  ICJ Rep. 177.
[vi] Slaughter, A.-M., “A new World Order”, 76 Foreign Affairs, 1997, pp. 183-197