Introduction:
International Law[1]
or the Law of Nations is the name of a body of rules which according to regular
definition regulates the conduct of States in their intercourse with each another.
International Law is that branch of law which relates to the conduct of
independent states who have certain inherent powers and are not subject to
external political power[2].
But to the question of whether it is applied evenly throughout the world when
ever there was a violation? The answer is apparently a partial yes. Since
International Law has different dimensions, on this paper I shall attempt to pick
up certain heads or themes and discuss challenges in those specific
spheres. Additionally I make an earnest attempt to suggest certain measures
through which we could curb the possibilities of violations going unaccounted.
Unrepresentative Security Council
Security Council formed as a tool to balance the power
between competing nations, when we talk about Security Council we should go
back to the circumstances that lead to the creation of League of Nations
instead of United Nations Organization. Now the Security Council as an
institutional set up is the giver of corrective justice[3]
rather than distributive justice[4]
most of the times. Apart from the stated purpose of maintaining International
Peace it is a bloc to check the expansionist intentions of superpowers. The world at the moment is neither
a unipolar nor a bipolar reality and is essentially a Multipolar set up. With
that being the case it must reflect and represent the current day reality
because most of the time ideological battles are fought in Security Council
over important security issues, this is mainly because of the presence of
Russia, USA and China. Members of security council are driven by their own
national interests rather than by global justice and international peace. Security
Council in its current form is blot on its legitimacy[5]
Syria’s Civil War:
Syria’s civil war is a case in point where there is no
agreement on resolution[6]
between major powers, with China and Russia on one side and USA on the other.
With such a disagreement how can we hold the Syrian government liable for the
excesses it committed on the protesting groups?
Resolution on Iraq:
Immediately after US and UK led invasion of Iraq on the
premise of Iraq possessing Weapons of mass destruction, US wanted to lift all sanctions which were imposed when it was under Sadam's regime.
Firstly act of aggression is a violation of
International Law. By lifting the sanctions through active lobbying US has
turned it in to a legally correct invasion and despite the opposition of non-permanent
members a resolution[7] was
passed for that effect. So it becomes imperative to reform Security Council which
reflects the aspirations of developing countries else it will continue to be a
forum where super powers play zero sum games[8]
with each other.
Totalitarian States and Military Regimes
Though different ideologies propagate totalitarian view but
it is also possible that an individual tyrant for eg: a military dictator can
usurp power from a democratically elected government and to further sustain the
power it acquired through fraud it engages in violation of International Law.
Disturbing development is that when they have a tacit support of super powers the
crimes these regimes commit often go unaccounted. Therefore the existence of
totalitarian[9] regimes
and the violations they commit is a grave challenge for the application of the rules
of International Law.
Case of Baluchistan:
How Baluchistan has become a part of Pakistan is a painful past. And the state oppression drives the Baluch nationalists to fight against the tyrant administration to establish their human
rights and further their cause of Independence; the most shocking violation is how
Pakistan as a state engaged in blatant human rights violations since the issue
erupted in 1947. Forced[10]
disappearances of people of Baloch is a key component in its strategy against
the struggle of Baluch independence, which is a grave violation of
International Human rights law. But until date we have not seen any tangible
and meaningful intervention by the international community. If every state has
a right to fight the forces of separatism they have to do with due regard to
International law[11] (Human
rights and Humanitarian law). Sanctions and strictures do not deter people from
committing crime and civilians are continued to be killed in Baluchistan till
date and this violations are expected to continue in future unless they it is forcibly stopped by International Community.
Discrimination as a
state policy in totalitarian regimes:
Totalitarian states have discrimination as their policies
which are duly supported by their municipal law, just like Nazi Germany and
Bolshevik Russia, where the former persecuted Jews and latter denied basic
human rights for all opponents under the sun. According to Universal
Declaration of Human rights all citizens have equal rights and there should be
no discrimination on grounds of ethnicity, religion or minority status. But
Pakistan’s constitution[12]
says only a Muslim can become a president of Pakistan which is a violation
International Law[13] (Civil
and Political rights). No one till date could question this discrimination. As a way forward UN must start propagating the idea of
keeping religion and affairs of state as two distinct entities which might
help to gradually reduce the official discrimination.
Humanitarian law
If there is any domain of International law which is
absolutely suffering from non-active support of power bloc it is “Law of
Armed Conflict”. The serious problem of all law, and hence of international
humanitarian law, is the yawning gap between precepts and practice[14].
Battle of Solferino 1859 helped Henry Dunant to discover how barbaric Human
being was and ever since he tried to convince all, that war is indeed destructive
and even in afterlife he is still trying to convince through ICRC. It generally
insists on humanitarian considerations while two warring parties are engaged in
an armed conflict. And primary aim is to ensure that no harm is caused to
civilians, also if once armed combatants are disarmed they must be treated
humanely. It will not be an exaggeration to say that most of the time perpetrators
are not held liable. If we have to go by the dichotomy of International armed
conflict[15]and
Non-International armed conflict, most of the times violations occur in Non-International
armed conflict[16] than
the international armed conflict. Peremptory norms of International
Humanitarian law are violated every day in this world in one conflict or the
other without any fear of liability.
Bangladesh Liberation
War:
During Bangladesh's liberation war Pakistan’s army
and state sponsored militia committed grave human rights violations and war
crimes, millions of innocent lives [17]were
lost who had nothing to do with direct armed conflict. A mass exodus of
further more ensued. But the key master minds that were behind this crime did lead a
peaceful life and died naturally. The tribunal which was recently established
is nothing but justice delayed. Years lapsed, no justice for the people perished. Again International
community has not done enough when it comes to ensuring justice delivery for
the victims of Bangladesh genocide. Limitation of Humanitarian Law is that it cannot stop beforehand from people getting killed at the time of war,
or it is nearly impossible to force belligerents to adhere to the law of
armed conflict when they are actually engaged in war or before they are going
to start.
Highway of Death:
An important incident on violation of International Law which
is committed by US on retreating Iraqi forces during the withdrawal of Iraqi
forces from Kuwait, Iraqi invasion of Kuwait was reversed mainly by US
Army. If the sole intention was to assist Kuwait to free itself from the Iraqi invasion why
should US bomb the retreating Iraqi forces on Highway 80 – A road that runs
from Kuwait city to Safwan of Iraq. International Law prohibits the excessive
use of force which could cause a superfluous injury. US army literally bombed the
Iraqi forces from whom it had no immediate threat, thereby killing thousands of
soldiers which is an unnecessary suffering for retreating soldiers and is a
violation of very minimum humanitarian standards[18].
The military necessity[19]
of killing thousands of retreating soldiers was never ascertained and justified
by US Army, therefore it is a clear violation of Jus cogens[20].
Physical elimination of Iraqi soldiers with excessive force
is a willful killing[21].
There was never a case to prosecute USA for its act, because US is not within the purview of International Criminal Court.
Conclusion:
Though
we have identified serious limitations in applying International law, it is not to discount the fact that even with current limited
application of International law much of stability and world peace has been achieved,
but that is not enough with this planet continuing to grow beyond 6 billion
people and a considerable amount of population being younger generation who can easily identify the untenable argument of unequal application of
International Law and the rising state of Multi-polarity affirms that notion.
Long gone are days where the governing of global affairs was completely based
on uni-polar and bi-polar views and we are in the era of Multipolar world therefore
new threats, challenges and opportunities are on the table for the world to
embrace. The developed world must realize this fact and ease its grip on world and let everyone to decide their own destiny without being intervened by the
super powers, in that direction reforming the Security Council will have a
salutary effect. Developed nations must agree that when it comes to
violations International Law they are no different from any other country in the
comity of nations. Bringing US within the purview of International Criminal
Court could set the right tone to start with.
Note: This Paper will be submitted for a discussion which is due to happen on 24 Aug 2013 at Dept. of Legal Studies, University of Madras.
End Notes
[2] Roland R. Foulke, Definition and Nature of International Law, Columbia
Law Review, Vol. 19, No. 6 (Dec., 1919), pp. 429-466
[3] Coleman, Jules and Mendlow, Gabriel, "Theories of Tort
Law", The Stanford
Encyclopedia of Philosophy (Fall 2010 Edition), Edward N.
Zalta (ed.),
[4] Lamont, Julian and Favor, Christi, "Distributive
Justice", The Stanford
Encyclopedia of Philosophy (Spring 2013 Edition), Edward N.
Zalta (ed.),
[5]
http://www.theguardian.com/commentisfree/2013/may/06/un-security-council
-Accessed on 22/08/2013
[6] http://www.un.org/apps/news/story.asp?NewsID=42513#.UhVw5pL-HyQ
– Accessed on 22/08/2013. Security Council meeting held on Syria
[8] Jackson, Matthew O., A Brief Introduction to the Basics of Game Theory
(December 5, 2011). Available at SSRN: http://ssrn.com/abstract=1968579 or
http://dx.doi.org/10.2139/ssrn.1968579
[9] Primoratz, Igor, "Terrorism", The Stanford Encyclopedia of
Philosophy (Summer 2013 Edition), Edward N. Zalta (ed.),
[11]
Art. 3. Chapter I: General provisions, Geneva Convention (I) for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field. Geneva, 12 August 1949.
[13]
International Covenant on Civil and Political Rights, Adopted and opened
for signature, ratification and accession by General Assembly resolution 2200A
(XXI) of 16 December 1966 entry into force 23 March 1976.
[15]
Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field.
[16]
Common Article 3 to the 1949 Geneva Conventions; and Article 1 of 1977
Additional Protocol II to the 1949 Geneva Conventions.
[18]
Art. 3 (2) (b) Declaration of Minimum Humanitarian Standards Adopted by
an expert meeting convened by the Institute for Human Rights, Åbo Akademi
University, in Turku/ Åbo Finland, 2 December 1990.
[20]
Finnis, John, "Natural Law Theories", The
Stanford Encyclopedia of Philosophy (Fall 2011
Edition), Edward N. Zalta (ed.),
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