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International Law

An everyday exception

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It might not be evident at first sight, but we are, in fact, living in the most peaceful era of human history. The battles of decolonization and the two world wars having come to an end already decades ago, the world has entered an unprecedented age of geopolitical stability.

Recent terrorist strikes and counter attacks cause indeed significant human suffering, the number of fatalities caused is nevertheless incomparable to previous carnages. This positive development is in part the result of the encroachment of law into international relations, which is supposed to favor peace and concord through the proliferation and respect of treaties between nations. Legal conferences set up by organizations with universal affiliations, permanent international courts and  arbitration  forums  formalize and tighten  relationships  between  countries.  The underlying rules’ interdependency favors cooperation and dialogue over escalation.

While these tremendous efforts have been put forward to keep statespersons from mobilizing troops, experts have also proposed to expand the general trend of peacetime regulation to times of armed conflict by introducing a unique legal framework to be respected in the now less likely event of a military altercation. This is how in the beginning of the twentieth century, the development and codification of the Hague Regulations and the Geneva Conventions, substantial parts of what is nowadays known as the Laws of War, brought humanity right to the battlefield. The new legal principles, which were followed by several additional protocols, aim to apply to all forms of warfare and to all types of weapons, those of the past, the present and also those of the future. Furthermore, they do not only deal with standards of certain categories of bullets and projectiles as well as with chemical weapons, but also with the lot of the wounded in the field and at sea, the status of prisoners of war and the protection of civilians and victims.

On the one hand, perfidious combat methods and the use of outstandingly cruel weapons were banned, and civilians were put under particular protection. These changes were largely welcomed because ordnance at the time lacked precision, and fights were marked by paramount brutality on whose constraint everyone agreed upon in their own interest. Moreover, armed conflicts at the time took place mainly between countries – and not within – and were therefore well regulable: once the desired gain of territory was recorded, the war came to an end. On the other hand, the warring parties maintained their license to kill so to speak, an instrument which was explained by the very nature of armed conflicts and had already been part of customs between combatants, the goal of an armed conflict was and is to beat the adversary after all. This explicit permission to kill under certain circumstances is admittedly still today unheard-of in other legal fields, but its formal codification allowed the ratification of the Laws of War by all countries on this planet and their recognition by numerous non-State actors.

It needs to be borne in mind that the precious legal architecture thus established is one of the few fields of law where the long lasting efforts of diplomatic conferences and negotiations led to an international consensus, also between powers that had no friendly relations so far, that had been at war with each other in the past or that were going to be so in the future. It might not only have been the conviction to make a small step towards “doing the right thing” from a humanistic perspective which pushed delegations from States with at the time obviously opposing interests such as Americans, Hungarians, Russians and Japanese to adopt such universal principles. Establishing rules on how to treat the adverse party’s civilians and combatants was also perceived as a reasonable price to pay for the protection which the own population could inevitably expect to benefit from during the following armed conflicts. From the start, the initiators’ idea was never to limit the military clout of the warrying parties, but rather to prevent unnecessary suffering in an already hostile environment.

Despite juridification and humanization of combat methods, war has nonetheless remained an affair of death and cruelty. An armed conflict has continued to be been viewed as a case of extremes, and the application of the Laws of War has been strictly limited to actual times of war. Through the simultaneous consolidation of other fields of law, such as the broadening of procedural law, the extension of civil rights and the individualization of protection norms, the gap between our peacetime guaranties and the ruthlessness of wartime has steadily been deepened. Also for this reason, suspension of our protected civil lives has been only tolerated as a strict exception, which was geographically, temporally and personally limited: this means that while regular soldiers in uniform performed the necessary evil on the battlefield, the rest of the population fled or held its breath and remained passive observers, while ever vulnerable to collateral damages such as death or injury. Subsequently, life continued in peace for both sides with one side inevitably submitting to a new form of sovereignty.

The post- 9/11 “War on Terror” catalyzed by the Bush-Administration and its Western allies twisted this centuries-old exegesis of war-regulating treaties. At stake is not any more the scaling up of territorial claims, but rather the repression of insurgents, economic supremacy and exertion of cultural and geopolitical influence. While international terrorism apparently seeks to threaten us arbitrarily and infinitely, the net reaction seems to be the authorization of occidental armed forces to respond on a permanent basis. Thus, not the times of war but the times of peace would have become the exception, if any. A clear transition from peace to war and the other way around would not exist anymore.

The Western governments’ legal advisors know that the exceptional Laws of War have not been developed for their worldwide and permanent application and that their use cannot fulfill our expectations in a satisfying manner. However, since more, longer and wider-spread military action is considered to be a facile panacea, we are submerged by fear-spreading slogans which make us feel surrounded by threats and which make us overlook how our and others’ civil rights are jettisoned. This, in times where we are less likely to die of unnatural causes than ever before; in times where our well-equipped police forces and sharp witted intelligence services do their best job in history. The only goal seems to be securing discretionary Western use of weapons, even at the costs of international agreements that have been toughly negotiated throughout decades on the basis of reciprocity. While the West refers on the one side to its impressive human rights achievements and does not miss an opportunity to impose sanctions on States which lag behind in this regard, it forgets its humanistic progress when dealing with its enemies– enemies that admittedly might hold little regard or concern for humanism themselves.

In this context, targeted killings of terror suspects are presented as a modern and precise method of war that is to be taken advantage of wherever and whenever deemed useful. Yet, this contradicts the temporary and geographic limits of the Laws of War which we created ourselves and which our soldiers rely on, and it also sets us back to times where it used to be some monarch who disposed of his subjects’ and adversaries’ lives and deaths at his sole discretion and without any rule of law whatsoever. Our war against terror does not only make quick work of its enemies, it terrorizes entire areas, even in countries with which the Occident is not officially at war, such as Somalia or Yemen. Drone strikes, which are often used to carry out targeted killings and which do not expose the own military forces to noteworthy dangers, have dramatically increased during the past years. The civilian population in the Middle East and Southwestern Asia, which is unable to flee from our attacks, perceives them as arbitrary. Reports about the increasing number of civilian victims and misrouted operations neither escape the enemy fighters nor the local populations, whereby the latter was otherwise mostly receptive to Western concerns.

For instance, the local Muslim population’s support for the Islamic State corresponds to a vanishingly low  single-digit  percentage  making  the  analysts  of  a  Pew  poll  come  to  the conclusion that “Muslim publics share concerns about extremist groups.” Another survey shows that the rise of the Islamic State is even the number one concern in young Muslims’ lives. Instead of taking advantage of these unexpectedly shared values, we do not fight our enemies hand in hand with the locally affected population. Pew suggests that only about 3-5% of the Arab population approve US drone strikes compared to more than 60% of the Americans. A report published by Stanford and New York Universities says that Pakistani civilians feel “terrorized” by US drone attacks. Terrorized by the land of the free? And yet, the American citizens seem to be in denial: Less than 3 out of 10 consider themselves very concerned that US strikes could lead to retaliation from extremist groups or that they could damage America’s reputation around the world. Just after 9/11, only 7% of the Muslim population told Gallup that they considered the Twin Tower attacks to be justified, an image which changed drastically after the US “War on Terror” was initiated: already in spring 2003, Pew reported that 71% of Pakistanis and 83% of Jordanians viewed the United States “very unfavorably”.

At the same time, even the Taliban established a code of conduct for its fighters stipulating that “[t]he utmost effort should be made to avoid civilian casualties”, whereas one of their former commanders publicly condemned attacks against Afghan civilians and government officials. No other than Osama bin Laden used to underline the need to protect civilians when fighting the adversary armed forces, an opinion that was confirmed by his secret letters which were seized by the US during the Abbottabad raid.

“It is a hard fact that US strikes have resulted in civilian casualties,” former US President Barack Obama admitted, “These deaths will haunt us”, he said – before continuing to order more drone strikes than any of his predecessors. His successor Donald Trump so far even outpaced him with respect to the number of drone strikes he ordered, the first targeted killing attack under his command was carried out in Yemen at the very day of his inauguration. Ultimately, with so much occidental schizophrenia, the last bit of sympathy for us is dissipating. Who would like fight alongside with the Western world or even make peace with it if its rules are applied whenever deemed convenient for our purposes only? With rulers who pretend to wipe out terrorism by pushing a button and without taking into account the fears of about one billion Muslims living in the affected areas?

One hundred fifty years ago, the Battle of Solferino in Italy brought infinite suffering to the involved soldiers, suffering which triggered the creation of the Laws of War. It was one step towards more humanity as well as a sign of progress towards the rule of law and domestication of the military. Powerful countries with technologically advanced military forces that insist on the alleged permanent permission of the use of violence that such rules contain do not leave the impression that they are partners in good faith, in particular when it comes to conflicts where insurgents and civilians are difficult to distinguish from one another. Our weapons must be internationally connected intelligence services as well as first class equipped police forces – trumps which no terror network in this world has at its disposal. Our enemies must be extradited to our courts. After all, it was possible to condemn the mass murderers of the Nazis during a fair trial in Nuremberg. The merciless laws of armed conflict were developed for exceptional and timely limited periods during which the basic rights in times of peace, such as the right to life and physical integrity, almost disappear. The gap between our precious values and our military’s cold and indiscriminate calculation toward terrorists and innocent civilians does not honor our free and democratic society. It damages the credibility of the Occident and makes our world less safe.

International Law

Human Rights Council election: 5 things you need to know about it

MD Staff

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The United Nations General Assembly held secret-ballot elections for the Human Rights Council (HRC) on Friday.  As of 1 January next year, the 18 newly-elected States will serve for three years on the UN’s highest inter-governmental body, mandated to protect and promote human rights worldwide.

While the institution has been the subject of controversy since its creation in 2006 – culminating in the withdrawal of the USA this past June – UN Secretary-General António Guterres reiterated that it plays “a very important role” in the UN’s human rights architecture.

1. First of all… how does it all work?

Elections to the Council happen annually, with countries serving for three years on a rotational basis, as some of the seats expire on 31 December every year. There are 47 seats, equitably distributed according to five regional divisions.

Countries need a minimum of 97 votes to get elected, and everything happens by secret ballot. This year, 18 seats were up for election:  five for Africa, five for Asia-Pacific, two for Eastern Europe, three for Latin America and the Caribbean, and three for Western Europe and other States.

2. So… who’s in and who’s out?

After Friday’s election, here’s how the Council will look from 1 January:

IN, elected this year: Argentina, Austria, Bahamas, Bahrain, Bangladesh, Bulgaria, Burkina Faso, Cameroon, Czech Republic, Denmark, Eritrea, Fiji, India, Italy, Philippines, Somalia, Togo and Uruguay.

IN, continuing their terms: Angola, DRC, Egypt, Nigeria, Rwanda, Senegal, South Africa, Tunisia, Afghanistan, China, Iraq, Japan, Nepal, Pakistan, Qatar, Saudi Arabia, Croatia, Hungary, Slovakia, Ukraine, Brazil, Chile, Cuba, Mexico, Peru, Australia, Iceland, Spain, and United Kingdom of Great Britain and Northern Ireland.

OUT, because they didn’t apply for a second consecutive term: Belgium, Burundi, Ecuador, Georgia, Kyrgyzstan, Mongolia, Panama, Slovenia and Switzerland.

OUT, because after two consecutive terms, they’re not eligible for re-election: Côte d’Ivoire, Ethiopia, Kenya, the Republic of Korea, the United Arab Emirates, Venezuela and Germany.

3. What does the Council actually do?

In a nutshell, the HRC is a multilateral forum to discuss anything relating to human rights issues around the world.

In addition to launching fact-finding missions and establishing commissions of inquiry into specific situations, it meets three times a year to review the human rights records of all UN Member States, in a special process designed to give countries the chance to present the actions they have taken, and what they’ve done, to advance human rights. This is known as the Universal Periodic Review.

This video explains it all in a simple way:

4. How come some countries accused of human rights violations still serve?

The HRC was created in 2006, following a proposal by former Secretary-General Kofi Annan. In a report titled “In Larger Freedom”, he noted that the Commission on Human Rights, created in 1946, was suffering from “declining credibility and professionalism” and was “in need of major reform”. Subsequently, based on his recommendations, the Human Rights Council was established by the General Assembly to replace the Commission and several measures were put in place to try and avoid the same problems that eventually arose with the Commission.

For example, as it is understood that the Council can only be as effective as its Member States, the election process was placed directly in the hands of the General Assembly, the only UN organ where every one of the 193 countries has equal voting weight.

In addition, the geographical group divisions and seat allocations are meant to prevent disproportionate focus on just a handful of regions and countries, and ensure that every country has a chance of fair consideration.

Finally, during the elections for each regional group, the General Assembly allows extra blank slates: this should theoretically ensure there are more candidates than available seats, enabling a competitive process. However, if – as was the case this year with 18 candidacies for 18 available seats – no extra countries apply, then no competition occurs, and whichever Member State applies, is likely to get elected.

5. So does the HRC make a difference for human rights worldwide?

Although human rights have always been a very sensitive matter for Member States, the Human Rights Council remains an essential part of the UN’s human rights architecture.

The Council has the power to adopt resolutions, launch fact-finding missions and investigations, and establish commissions of inquiry. In particular, the HRC can appoint independent experts on specific issues. At the moment, there are 44 thematic experts and 11 country ones appointed to monitor and report on human rights issues as requested.

All these mechanisms allow for grave violations to be highlighted and brought up on the global stage for examination, discussion and, whenever feasible, action.

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International Law

Unilateralism Vs Multilateralism

David Ceasar Wani

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During the 73rd sessions of the general assembly at the UN, the crunch of unilateralism and multilateralism between US and China kicked off, in which Trump’s unilateral visualization of the world likely to hurt the US, but it might undermine his presidency. As the competitions between unilateralism and multilateralism are viewed inversely. According to the international relations scholars, unilateralism has defined an approach in international relations in which states act without regard to the interests of other states or without their support. Unilateralism is usually contrasted with its opposite approach, yet multilateralism is acting cooperatively with other states. Though unilateralism is often used in a negative way, experts agree that there are positive aspects to occasionally acting unilaterally, such as in issues of national self-defense.

Some politicians and international experts support unilateralism, at least for certain issues. An example of a unilateral action is the U.S. President Donald Trump’s decision to withdraw from the Paris Climate Accord in 2017. The Paris Climate Accord was actually negotiated and approved by nearly 200 nations around the world, and the issue of climate change is impossible to be handled significantly without united efforts of all the countries, particular the major ones. Trump withdrew from the Paris Climate Accord, saying that it hurt American jobs and American interests as well. Trump’s decision was opposed by many experts and average people around the world including the United States.

Nevertheless, it is believed that unilateralism is a policy of dealing with affairs that may be violent, regardless of the will of other countries or nationals. Given this, the most prominent feature of multilateralism is the negotiation since it can pay close attention to the shared interests of the majority and take practical and reasonable measures to deal with affairs in international affairs. The U.S. adopts unilateralism as a kind of closed rather than open behavior. Self-interest is the American priority mentality that Trump previously reiterated, and this approach seems to be a good way to safeguard the interests of the United States, but in fact, it is inconvenient for American nationals, and for the United States.  Conversely, politics, diplomacy, and trade all have disadvantages and this disadvantage can be a hindrance to domestic investment, risk from political changes negative influence on exchange rates, higher costs, economic non-viability, expropriation, negative impact on the country’s investment, modern-day economic colonialism and etc.

From this point of view, it can be said unfavorable to Americans. The reason why the United States has become strong from a dispersed federation compared with the confederation is mainly between states. Improvement of politics and other status has enabled the United States to develop and be strong because of a strong government. If the United States 1787 Constitution was originally formulated by the founding fathers’ generation, and then adopted unilateralism and did not negotiate, it is unimaginable that there would be a powerful United States today. So now Trump adopts unilateralism, which is contrary to the spirit and method adopted by the U.S. Constitution. The threat to his presidency is great because unilateralism is difficult to promote the cooperation and development of national economies. The interests generated by the United States are very short-lived, but they pose great threats to their long-term development and the long-term interests of their citizens. Therefore, when dealing with state affairs or international affairs, multilateralism should be adopted and negotiated. The problem is that we can better safeguard the interests of all parties, maximize the benefits, and promote the development of countries and their own economies.

In conclusion, it is important to understand the evolution of China’s concept of multilateralism, because one has to begin with China’s particularly humble experience with multilateral institutions e.g. it’s being kept out of the United Nations (UN) and its institutions during its preliminary decades as also for it is being the target of UN criticism and sanctions (for Korean War) during those years. The things were to begin to change following the Sino-US rapprochement and China’s entry into the UN and other multilateral institutions from the 1970s. Another crunch change to overlap with the late 1970s was the rise of Deng Xiaoping to power in China. Deng’s economic reforms and openness become the driving force behind China’s conclusive shift toward multilateral institutions.

According to Zhang Baijia, expert at the Chinese Communist Party’s (CCP) Central School, numerous internal and external developments during the first half of the 1980s were to expressively influence Deng’s strategic thinking in three major ways: (a) Deng aborted the long-held view that world war is inevitable’ and instead stresses on ‘peace and development’ as central theme for China; (b) Deng acknowledged that the contemporary world is heterogeneous in nature and that conflicts coexist with cooperation and competition with interdependence; and (c) Deng maintained that independence does not equal isolation and self-reliance does not mean rejecting all foreign things as had been the case during Mao’s times. Change in Deng’s worldview was to result in the change in China’s approach towards international institution and towards the whole idea about multilateralism.

As a result, the whole of the 1980s witnessed extraordinary qualitative and quantitative changes as China gradually involved itself in not only international organizations in the political domain but also expanded its participation in economic and security types of multilateral forums. As regards China’s future vision on multilateralism, it has been motivated primarily by China’s felt need (a) for undermining the basis of United States’ unilateralism and its global power profile and (b) for making efforts to become acceptable as the benign rising power amongst its immediate neighbors and amongst the world at large. By far these two remain China’s most important foreign policy challenges through its rise as a major power has already been accepted as a given reality in general. The conditions have also been facilitated by external dynamics, especially following the collapse of former Soviet Union which has shifted the focus of international relations and led to the widening of the whole understanding of security and strategic calculations amongst major players therefore moving the dynamic of international power politics beyond two superpowers to include new actors like China.

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International Law

Strengthen UN, Implement UN Charterer in true spirit

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Humanity is suffering everywhere whether it is Syria or Yemen, Afghanistan or Libya, Iraq or Myanmar, Palestine or Kashmir. The one who are being killed are human beings, irrespective of his or her race, color, religion, nationality, its human lives which are being lost. Last couple of decade, around 2 million people have been killed, 6 million have been made refugees in their own country or forced to migrate to other countries. Threats and tension is felt in Iran, Turkey and North Korea, Ukraine, and many other parts of the world.  If one switches on TV or read or listen to News, it is all about War, Killings, Blasts, hate and suppressions. People are fed-up of bad news all the time. Everyone is suffering with mental torture. Geo-political situation is deteriorating rapidly. The world is less safe than few decades ago. Insecurity feelings are rising exponentially. What is new world order? On the name of World new order, we have made this world more hostile and fragile. Who is suffering, humanity! Who is the beneficiary, end of the day, no one will be winner.

United Nation General Assembly is busy in its 73rd session. Leaders from all over the world are meeting each other and making speeches one after another, but what will be the out-come or result?

United Nation was founded on 24 October 1945, just after the World War II, in replacement of League of Nations. Its head quarter is at New York, USA. The United Nations is an intergovernmental organization tasked to promote international co-operation and to create and maintain international order. The charter of UN was very well drafted and very comprehensive. Its charter was formulated on justice and equality. It was hard work of genius people.

But with the passage of time, it is losing its effectiveness and failed to maintain world order. Some nations became so strong that, they put aside the UN and act unilaterally. Some nations are so stubborn, that they violate UN charter openly and feel no guilt. Some countries are so feeling-less that the whole world condemned them but they keep criminal silence.

Should we stay calm and just became spectators and watch what so-ever will happen? Should we leave all the issues to our next generations to suffer? Should we close our eyes and do not acknowledge the issues? Can we escape? Can we be ignorant? Can be we so cruel to our kids and leave them to be humiliated?

I believe, it is time to think and raise our voice, and struggle for a better tomorrow, better tomorrow for everyone, better tomorrow for my kids, better tomorrow for your kids, better tomorrow for our next generation, better tomorrow for everyone. We should struggle to make our tomorrow better than our yesterday. Think positively, act smartly and be optimistic.

We demand, respect of the UN , we demand for implementation of UN charter, We demand for justice, We demand for equality, We demand for fair-practices, We demand respect for human kind, We demand for a stoppage of killing, we demand stoppage of violence, We demand for protection of weak, We demand for uniformity etc.

It is natural, when we live together, the differences may rise among us. It can be among individuals or nations. It is very much normal and was happening since ages. We quarrel with our kids, brothers and sisters, parents, spouse or friends, boss or subordinates or colleagues. It is understandable. But we live in a civilized world. There are mechanisms to resolve the differences. In our day to day life we are over-coming on many issues and resolve with each other. The same approach may be followed to resolve the differences or misunderstanding among nations. UN is the right platform, UN charter is the proper guidelines for resolving the issues. Diplomacy is the weapon of civilized world. We all must respect UN, and its charter and resolve all issue through peaceful manner and dialogue. No one should have the right to by-pass UN or impose its decisions unilaterally.

I suggest, the International Community may join hands and strengthen UN and implement its charter in true later and spirit. UN may investigate the history of almost 7 decades and point out all the violators and let them declare responsible for their wrong doings. Force them to rectify their mistakes, compensate their wrong doings. UN should strengthen to the extent that any country how strong it might be, should not dare to violate UN charter. Any sanctions without UN approval may be declared null and void. Any military action without UN approval may not be recognized and declared criminal acts. They must be punished for their heinous crimes and war like crimes.

Let us struggle to make this world a place of “Peace, Harmony, Justice, Equality and Prosper” place for our generations to come. We may sacrifice but our next generation may enjoy Peace, Harmony and Prosperity.

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