“FIRST PEACE…, THEN JUSTICE”:

Dilemmas of Human Rights Enforcement in Our Times

 

A lecture delivered at Chatham House

April 6, 2009

By

Bereket Habte Selassie,

The William E. Leuchtenburg Professor of African Studies,

Professor of Law,

The University of North Carolina at Chapel Hill

 

 

1. Introductory Remarks

 

The essence of the theme of my lecture is summed up in the sub-title—dilemmas of human rights enforcement—and the main title—First Peace, then Justice—is an expression of the attitudes of most rulers, particularly in Africa. This condition may be summed up as the dialectic of peace and justice, as I will explain later.  As part of the theme of this lecture, it is important to point out that even in states that have constitutions with a Bill of Rights, and where human rights charters have been ratified, as in much of Africa, the security imperative is often made to override the demands of justice.

 

Before I address the topic of my lecture, let me make a few general observations, by way of introduction.  Peace is an essential condition in the life of any social order.  Indeed, its vital importance is captured in some common expressions in several languages.  We are all familiar with the Latin Pax Vobiscum (Peace be with you) uttered several times a day in some Christian religious service.  Its Arabic equivalent, Assalaamu Aleikum (Peace be with you) is uttered by every Muslim and, in many countries even by Christians, as a form of greeting, followed by the response, wa aleikum’asalaam (and also with you).  There is also the Hebrew, Shalom.  It is a great irony that the region that gave us these words and the three great religions of the world has been the scene of what seems to be an unending state of war.

 

Some parts of Africa that have been engulfed by conflict, like the Horn Region and the Great Lakes Region, have become the testing ground for the operation of the dialectic of peace and justice.  A crucial question facing leaders and policy makers in general, in situations where there have been genocidal atrocities as in Rwanda and the Congo, is this:  should leaders who have committed crimes be brought to justice even where national leaders insist that peace and reconciliation must be given priority, prevailing over justice?  In Uganda, the political leaders have been known to accept such a compromise contending that peace and national reconciliation demands that the leader of the Lord’s Resistance Army (LRA), who has been charged as a war criminal by the International Criminal Court, be spared prosecution in the interest of peace and national reconciliation.  Unfortunately, the leader of the LRA rejected the offer of reconciliation and moved to Eastern Congo where he is committing more atrocities.

 

In Rwanda, in the face of the enormity of the problem following the 1994 genocide, the government of Paul Kagame modified the demands of justice in two ways.  First, in place of following the ICC criminal process, they resorted to traditional process of justice—the gacaca—which places a high premium on peace, reconciliation and a consequent social harmony.  Secondly, they let many of the minor offenders in the genocide go free, or with minimal punishment.

 

Then there is the much celebrated South African model of Truth and Reconciliation.

Perpetrators of crimes committed during the Apartheid regime were forgiven on condition of a plea of guilty accompanied by remorse and apology to the victims of the crime, or to their surviving relatives.

 

In these cases the demand of justice was sacrificed in the interest of the imperative of peace and national reconciliation.  In both the gacaca judicial process of Rwanda and the South African Truth and Reconciliation, a traditional African concept of justice is at work in a process that substitutes rehabilitation and restitution of social harmony for punishment.  But remorse of the culprit and a ritual of apology and readiness to make amends is a precondition for forgiveness, whereas in the ICC and Euro-centric judicial process in general, punishment is the governing concept.

 

Dilemma of Human Rights Enforcement

Let me now focus more narrowly on the theme of my lecture, the dilemma of human rights enforcement in our times.  The theme involves two clusters of issues.

1. First there is the issue of the balance between liberty and security in the application of human rights principles.  The main topic of my lecture, “First Peace, Then Justice” represents in short hand the question: how much of the citizen’s liberty may be limited in the name of security and in what circumstances?  Is there such a thing as absolute liberty that does not admit any limitation in the name of security? Or, alternatively, can peace, or the security imperative, be allowed to dispense with liberty
2. Second, there are issues related to international humanitarian law.  These issues concern the restraint imposed by international agreements on the behavior of state actors in military conflict situations, in terms of their treatment of war prisoners and wounded as well as civilian populations.  I will address the two sets of issues separately, beginning with human rights.  To that end, I will begin by citing a couple of cases to put the lecture in the context of current controversy.

 

One case concerns the recent indictment of Sudanese President, Omar al-Bashir, by the International Criminal Court (ICC), which has made the question of sanctions for human rights violations frontline news.  The creation and work of the ICC is one of the most exciting, if controversial, matters of recent years. The other case of interest is the case of Biniam Mohamed, a former internee at the Guantanamo Bay Detention Center and his treatment at the hands of US interrogators.  This case has also refocused attention on issues of human rights violations at international levels.  The case of Biniam Mohamed, a Muslim convert of Ethiopian origin, became a subject of dispute between American and British authorities because he is a UK resident.  Mr. Mohamed claims that he was tortured by American interrogators at Guantanamo Bay, and that British intelligence operatives supplied the American interrogators with information on how to deal with him during interrogation, and are thus accomplices in the charge of human rights violation contrary to the UN Convention Against torture, and US law on the prohibition of torture.

 

There have been a few test cases coming out of the Guantanamo detention of “Afghanistan” prisoners.  Most of the Guantanamo detainees were captured in Afghanistan by American troops following the defeat of the Taliban by American-led forces in the 2002 Afghanistan war.  Although called Afghanistan prisoners, several of the detainees were nationals of other countries, including Yemen and Saudi Arabia.  In the case of Hamdan v. Rumsfeldt, the detainee, who was charged in the Guantanamo military tribunals, was a Yemeni national.  His lawyers argued that the military tribunal at Guantanamo lacked jurisdiction over Hamdan’s case and took the case all the way up to the US Supreme Court.  The Supreme Court accepted the argument and ordered the case closed, much to the chagrin of the Bush administration, whose contention was that the security of the United States required the “Afghanistan” detainees to be tried in a military tribunal.  In many other cases, where American law enforcement or intelligence gathering organizations like the CIA  could not find evidence to support their case, sent the detainees to countries known for practicing torture in a procedure known as rendition, in order to extract evidence.

It has also been alleged that, after Ethiopia’s invasion of Somalia in 2006, Ethiopian authorities captured and handed over to American intelligence operatives, several people of Somali origin, including citizens of Canada and some European countries, on suspicion that they were members or collaborators of Islamic extremists fighting the government of Somalia, allied to Ethiopia.

 

In the case of Sudan’s President, Omar al-Bashir, the International Criminal Court (ICC) charged him with war crimes and crimes against humanity for ordering the Jamjaweed militia to commit atrocities on hundreds of thousands of people in the western Sudan region of Darfur.  It is interesting to note that the indictment does not, to my knowledge, include the crime of genocide, an issue that has occasioned a great deal of controversy among some scholars and between them and some American journalists and human rights activists who claim that genocide has been committed.  The acts of the Janjaweed are tantamount to ethnic cleansing of the kind for which Slobodan Milosovic of Yugoslavia faced similar charges at The Hague, and it is a matter of interpretation whether these constitute genocide.  Before it charged al-Bashir and issued a warrant for his arrest, the ICC sought the legal cover from the UN Security Council.  Earlier, China had consistently sided with Sudan in the demands for sending UN Peacekeeping troops to Darfour.  It is therefore very hard to imagine China not exercising its veto power in the ICC’s demand for charging al-Bashir.

 

1. Human Rights

I now come to human rights, its meaning and scope.  First, then, what is human rights and how is it related to peace and stability as basic values that sustain a social order?

Human rights have become part of humanity’s common legacy, enshrined in almost all modern constitutions. The texts of most constitutions seek to strike a balance between liberty and security. In this respect we need to make a distinction between constitutions and constitutionalism.  Constitutions are the written texts containing the basic principles pertaining to the powers and responsibilities of government, and the rights and duties of citizens.  Constitutionalism is the operation of constitutional principles as interpreted by the courts of law and followed by the other two branches of government.  Constitutionalism is linked to democracy and the rule of law in the sense that all are equal before the law and that no one is above the law.

 

Throughout human history there have been assertions of human rights in one form or another, but the 1776 American Declaration of Independence, and The Declaration of the Rights of Man (Le Droit de l’homme et du citoyen) coming out of the French Revolution, thirteen years later, sought to codify and universalize human rights.  The latest expressions of such codification are found in the Charter of the United Nations, in its Universal Declaration of Human Rights of 1948 and several other international legal instruments, notably the 1966 Covenants on civil and political rights and on social economic and cultural rights.

 

Underlying these expressions is a noble idea that has spread by its own power and is flourishing in our time, the idea that certain fundamental rights are inherent to all humanity.  This idea is among those that humankind always struggled to assert, values that individuals intuitively felt belonged to each person as part of natural existence.

Even in societies ruled by monarchs, historically, a system of checks on arbitrary exercise of power has been prevalent.  Rebellions occurred where the monarch abused, or exceeded the limits of his authority, as King John of England did leading to the revolt of the barons, which produced Magna Carta, to cite just one illustrious example; there are many other examples.

 

There is no need for me to give details of the contents of human rights.  All modern constitutions contain detailed provisions on the right to life, liberty, and equality as well as on a host of other rights.  I will cite two examples that are invoked more often.  The first concerns equality guarantee.  In terms of this right all persons are equal under the law.  No person may be discriminated against on account of race, ethnic origin, language, color, gender, religion, disability, age, political view, or social or economic status. This right is the foundation of democracy; in fact it constitutes the intersection of democracy and human right.  Put another way, democracy is a fundamental human right.

The second concerns right to human dignity. According to this fundamental right, the dignity of all persons is inviolable, and no person may be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.  Moreover, no person may be held in slavery or servitude nor required to perform forced labor not authorized by law.

Human dignity is the aspect of human right that lies at the intersection of faith, law and morality. It is generally accepted now that religious belief supports commitment to a moral and legal regime of human rights.  This partly explains the fact that many human rights NGOs are members of the faith community.

The principles contained in these two sets of rights—equality and human dignity—are so clear I do not need to explain them further.

 

To round up this part of my remarks, let me stress one obvious fact.  Human rights as a set of universal values must be based on justice and depends on concrete procedures for sanctioning its breach. Legal rights need machinery for their enforcement. In this respect, national laws, starting with the constitution, are more effective than international law.  Indeed, the problem of enforcement constitutes the principal challenge of international law.  As the international law of human rights has depended on national laws for enforcement, naturally, problems occur when national governments are themselves subjects of violations of human rights.  The case of Sudan’s Omar al-Beshir is a perfect illustration of the problems of international law as regards its enforcement.  For as long as President Bashir does not leave Sudan, he will be secure from apprehension.   But if, for any reason, he is outside of Sudan, for example in Europe, he could be arrested and brought to trial at The Hague.  This is one of the most exciting and promising features of the treaty that created the International Criminal Court (ICC), and also its principal challenge.  The challenge comes first due the opposition of some governments, as well as some repercussions caused by the reaction of the government of the accused.  In Sudan, Bashir has expelled all foreign relief organizations putting the lives of the recipients at risk.

 

It sounds unbelievable, but the arrests of Milosovic and Charles Taylor have shown the way for the future development of international law.  For the time being, this development has been frustrated by the refusal of the United States, Russia, China and India to sign on to the Rome treaty, establishing the International Criminal Court (ICC), which is empowered to try anyone who is charged with committing genocide, war crimes and crimes against humanity.  The refusal of the United States is based on domestic political reasons, where there would be no sufficient vote in the U.S. Senate to ratify the treaty.  On the other hand, from its birth the United States accepted international law—or “the law of nations” as it was then called—as part of U.S. law.  This fact is borne out by the Aliens Tort Statute enacted by the first congress of the United States in 1789.  That Statute, as amended a few times, has been invoked by nationals of other countries to bring suit against individuals of other countries in U.S. federal courts for violations of their human rights.  For example in the case of Abebe-Jire V. Kelbessa Negewo (1996), three Ethiopian women brought suit in the district court in Atlanta against a police officer alleging that he had tortured them during the time of the military government. The officer was found guilty and deported to Ethiopia to face trial and ordered to pay damages.  Other foreign officials, like the former Nigerian military strongman, Abusallam Abubakar and Ghanaian leader Assasie-Guiamah, were forced to flee the U.S. after action under the Alien Torts Statute was initiated against them.  I can, therefore, see a time soon when the United States will sign on to the ICC treaty.

 

Let me now repeat the question I posed earlier whether there is such a thing as absolute right, or are there limits, and if so, what are they?  This is an area where power and rights intersect.  For example, in the United Sates, this subject has occasioned a great deal of debate in recent years since September 11, 2001 and the Iraq war.  With respect to the controversy concerning human rights and security and the limits to be placed on them, there are generally accepted constitutional guidelines.  Most constitutions contain provisions that prescribe the criteria for limits on fundamental rights.  The most common criteria are national security, public safety, prevention of public disorder, or the protection of the rights and freedoms of others.  Most constitutions also make exceptions to the limits.  There are certain rights in constitutional law that we call non-derogable rights.  An example of non-derogable right is the right to human dignity; that is to say, no one is allowed to humiliate or torture anybody under any circumstances.  Thus the infamous images we saw at Abu-Ghrabe in Iraq are prohibited under this constitutional rule as well as under the UN Convention against Torture.  Similarly, the rights to a fair trial and to an order of Habeas Corpus are non-derogable.  Every one has the right to a fair trial, to confront and challenge his accusers and to the use of a lawyer of his choice.

 

As to the nature and scope of human rights, scholars of the subject of human rights divide them into first generation rights, second and third generation rights.  This division has now been rationalized by the 1966 International treaties known as Covenants; there are two of them:

1. The International Covenant on Civil and political Rights (ICCPR), and
2. The International Covenant on Economic, Social and Cultural Rights (ICESCR).

The first covers the classical (or first generation) rights such as the right to assembly and freedom of the press, of movement etc.  The second covers what became known as second and third generation rights, including the right to economic and social security, the right to food and to clean air.

The Covenants are supported by Optional Protocols geared toward their general application.

In Article 1(1), these treaties provide a uniform clause that has wider and deeper (one might even say revolutionary) implication.  This common Article of the two treaties lays down a general principle as follows:

“All persons have the right to self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”  Concerning enforcement of these rights, ICCPR established the Human Rights Committee to act as the entity to hear complaints of violations of human rights.  The Committee, which consists of 18 experts appointed by the UN General Assembly, has given interpretation of the treaty in the process of entertaining complaints against states accused of violation when the alleged violator state has declared its acceptance of the Optional Protocol.

Some 70 countries have agreed to permit individual citizens to petition under the Optional Protocol.   ICCPR in particular makes provisions for complaints of non-compliance to be heard by the Committee when instituted by other states.  Individuals claiming to be victims of violation may lodge complaints.  In addition, the Committee makes periodic observations on the meaning of parts of the treaty, and reviews periodic reports on compliance, which parties are required to present and to explain before the Committee.  The ICC has also a victims protection section, an important feature of its function.

In addition to these international covenants, there are regional conventions and charters providing for the protection of human rights.  Examples are the European Human Rights Convention and the African Charter of Human and Peoples Rights. As I said earlier, there is no lack of charters or constitutions; the problem is lack of compliance.  For example, can victims of human rights abuses sue African leaders?  To quote Miss Eliza Doolitle of Pygmalian fame—Not- Bloody- Likely!

 

Next, I will deal very briefly with the second cluster of rights, namely international law of human rights

 

III. International Humanitarian Law

International humanitarian law is applicable in situations of armed conflict.  As in human rights in general the same spirit of care and concern is at work in the case of the life and well-being of victims of armed conflict.  Historically, the better angel of human nature prompted some people to pioneer the idea of defining a neutral space and separating those engaged in armed combat from innocent civilian populations who become victims of the conflict, on the one hand, and those wounded or taken prisoners. The end of World War II revealed millions of victims of the horrors of war, including hundreds of thousands of refugees.  The post war international community convened a meeting to deal with these issues and, as a result, the Geneva Conventions of 1949 and the Convention on Refugees of 1951 were adopted.  We are only concerned with the Geneva Conventions here.  The Geneva Conventions is a codification of international law governing armed conflict, also known as international humanitarian law, which was traditionally called the laws and customs of war, or the law of armed conflict.  The aim of such laws is to reduce unnecessary human suffering in situations of armed conflict.

 

The reason why the plural is used is that there are four Geneva Conventions.  They are as follows.

1. The Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field (Convention I).
2. The Geneva Convention for the Amelioration of the Conditions of Wounded, Sick and Ship-wrecked Members of the Armed Forces (Convention II).
3. The Geneva Convention Relating to the Treatment of Prisoners of War (Convention III).
4. The Convention Relating to the Protection of Civilian Persons in Time of War (Convention IV).

 

Generally speaking, the Geneva Conventions are related to international conflicts.  But in 1977 the Additional Protocol II to the Geneva Conventions was adopted to provide for the protection of victims in non-international armed conflict.  The Additional Protocol together with Article 3 of the Four Conventions (known as the Common Article) provide for protection of all victims of military conflict between or among forces within nations.

All those involved in armed conflict are bound, at a minimum, by the following rules.

–Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms, and those put out of action by sickness, wound, detention, or any other cause, must in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth, or any other similar criteria.  To this end, the following acts are prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

• Violence to life and person, in particular murder of all kinds, mutilation and torture;
• Taking of hostages;
• Outrage upon personal dignity, in particular humiliating and degrading treatment;
• The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees, which are recognized as indispensable by civilized peoples.

Moreover, the wounded and sick must be collected and cared for.  It is worth repeating that these rules apply to international as well as non-international conflicts.

 

In conventional international armed conflict the parties to the conflict must include two or more States.  In non-international conflict, such Iraq’s insurgency, only one side (the US and Coalition forces) is a state.  The general consensus of expert opinion in this respect attaches importance to the phrase “each Party to the conflict” used in Common Article 3 of the Geneva Conventions and the Additional Protocol.  The argument is that armed groups must have a minimum degree of organization and discipline.  According to this argument the term each Party binds a non-signatory Party.  For example, the UN Security Council has passed a number of Resolutions reminding the warring parties in Somalia of their obligations under the Geneva Conventions.

Apart from the Geneva Conventions, the Additional Protocol and the 1966 Covenants, the International Community has provided more muscle to the enforcement of international rules governing human rights.  The creation of the International Criminal Court (ICC) is the latest sign that the development of international law on human rights is on the right track.

 

1. Conclusion

The development of international law has been incremental, though there have been decisive moments that precipitate change, moments invariably following a disastrous war.  As mentioned earlier, the Geneva Conventions came into being following World war II, as was the Charter of the United Nations.  Similarly, the Treaty of Westphalia in 1648 was adopted at the conclusion of years of war among Europe’s powers.  The treaty ushered in an era in which the European nations pledged to abide by the doctrine of international law, pacta sunt servanda (treaties must be observed), enunciated by Hugo Grotius, the father of modern international law.  On the other hand, many of modern treaties, including the ICC treaty, have come as a result of rational and peaceful process.  The fact that four powerful countries including the United States have not signed on to the treaty establishing ICC is a clear indication that we are not out of the woods yet in this matter.  In the absence of a general American acceptance of all the rule of international law, there is no possibility of enforcing international law, such as the rules governing the ICC and its judgment.  We may have to wait a long time before America can accept the ICC.  Not even a popular President like Obama can do this because he would need the support of the Senate of the United States to ratify the Rome treaty.

 

It must also be remembered that there has been a dispute on the universality of the idea of human rights.  Some maintain the view it is a Western idea.  E.g. former Chinese President Jan Zemin was engaged in a verbal exchange with Bill Clinton.  Jan Zemin, when challenged on china’s record of human rights, told Clinton that the idea is a Western invention to which Clinton peremptorily responded that Jan Zemin was on the wrong side of history.  He might have added that China is signatory to the UN Charter and a permanent member of the UN Security Council; and that article 55 of the Charter states that the UN shall promote “universal respect for and observance of human rights and fundamental freedoms fore all. “

Sudan’s President, Omar al-Bashir, made a similar statement to that of China’s former President, in response to the warrant issued for his arrest by the ICC.  Al-Basir is the first sitting President in Africa to be charged for war crimes and crimes against humanity.  So far, the ICC has launched four major investigations—in Sudan, the Congo, Uganda and the Central African Republic.  It has issued 12 arrest warrants, and four of the accused are in detention while trial has begun in one case.  Most of these concern African leaders, which has raised the question whether the ICC is interested to deal with offenders in developing countries only.  Clearly there is much work that remains to be done.