International Law plays an important role in resolving conflicts among states in the international arena. The conflict between the Nile Basin countries is a struggle over the legality of the Nile water, according to the agreements signed during the colonial era. The Nile Basin crisis is considered an international water law conflict in the regional system which arose recently. Egypt is one of the oldest civilizations on the earth, before the emergence of international law and even the international water law (international watercourse), the ancient Egyptians knew the value of the water of the Nile River because their life depends on agriculture.
This paper aims to highlight the importance of the Nile River to Egypt, and the role of the international law in dealing with the Nile’s crisis.
Egypt and the Nile River
The Nile River is one of the most important and the longest rivers in Africa and the world. The Nile River is located in northeast Africa, it flows through many different African states including Egypt, Sudan, Ethiopia, etc. According to the British Encyclopedia, Nile River stretches 6.695 kilometers, measured from its extreme sources in the plateau of the tropical lakes ( at the farthest point on the Luvironza River, a branch of the Rurubu River in Burundi) to the last point in its estuary in the Mediterranean Sea. Besides, it’s the second largest basin in the African continent in terms of area, it comes after the Congo River Basin, which has an area of approximately 3.82 million square km. After the independence of South Sudan, the Nile River waters are shared by eleven riparian countries in Africa: Egypt, Sudan, South Sudan, Ethiopia, Rwanda, Tanzania, Uganda, Burundi, Democratic Republic of the Congo(DRC), Eritrea, and Kenya.
The Nile River has two major tributaries, the White Nile and the Blue Nile. The White Nile begins from Lake No at the point where Bahar al Jabal(river) ends and extends to Khartoum. Thus, the River between Lake No and the meeting point of Sobat River heads from west to east, joining the river at this distance Bahr el Zaraf. The White River in Ethiopia supplies about 14 percent of the Nile’s River water. The second major tributaries of the Nile River is the Blue Nile which begins at Lake Tana in Ethiopia, it’s 1,840 meters above sea level and an area of about 3,060 square kilometers. The Blue River is undoubtedly the most significant tributary of the Nile River, about one-tenth of the African continent covered by the Blue Nile, and its riparian countries possessing 40 %of Africa’s continent population.
As I mentioned above, the Nile River is of great importance to any country in the world including Egypt. When we mention the Nile River we have to mention the ancient Egyptian civilization, the Nile River has played an important role in shaping the life of ancient Egypt. it’s known that the ancient Egyptian civilization developed along the banks of the Nile River. The ancient Egyptians depended upon the Nile River for agriculture and irrigation, so there is no doubt that the Nile River occupies a central place in the lives of Egypt and the Egyptians. The Nile River was worshiped as a God in ancient Egypt, and the ancient Egyptians glorified the Nile.
The importance of the Nile River to Egyptians is that it represents Egypt’s main source of freshwater. Egypt depends entirely on the Nile River for agricultural, industrial and domestic uses. It provides over 96 percent of Egypt’s annual water needs. Besides, the Nile River has taken full control of Egypt’s economics and life. Although Egypt is the first beneficiary of the Nile’s water, there is no source of the Nile River in Egypt and Egypt is one of the downstream countries. Therefore, any shortage in the quantity of water supplied to Egypt has a direct and negative impact on its agricultural and industrial production.
The reason for Nile waters dispute
The struggle over the Nile River waters dated from the colonial era. The reason for the dispute during the post-independence period and until the negotiation process was the rejection by some states of the treaties that signed during the colonial era, such as Ethiopia. But after reaching the principle of an agreement to establish a framework for cooperation, there were some disputes regarding the sharing of the Nile’s waters, and the rule of prior notification or consultation. There were several treaties signed during the colonial era that addressed water allocation in the Nile River that still affects the contemporary negotiations among the Nile Basin countries. Under colonial Britain’s rule, in an effort to secure their interests over the Nile River in Egypt, some treaties stood out; the 1891 agreement, 1929 agreement, and the 1959 agreement.
In 1891, Britain and Italy signed an agreement determining their area of influence in the basin countries in eastern Africa to the outskirts of the Red Sea. Whereas, the third clause in the agreement stipulates that Italy will not construct any works on the Atbara River in order not to impede its flow to the Nile. The fourth article in this treaty focused on protecting the interest of British and Italian nationals in East Africa and supervising the Red Sea corridors more than in the issue of regulating the exploitation of the Nile waters.
On May 15, 1902, a treaty was signed in Addis Ababa between Britain (on behalf of Sudan) and the Ethiopian Empire to demarcate and define the border between Ethiopia and Sudan. In the third clause of the treaty, Emperor Menelik II pledged not to make any attempt to built such a structure on the Blue Nile, Lake Tana, or Sobat River. In order to ensure the continuity of this treaty, it was stipulated that agreement must be adhered to by both parties and their heirs and those who succeed them to the throne. In this agreement, it explicitly provided for the regulations of the exploitation of the waters of the Blue Nile, Lake Tana and the Sobat River, and the need for prior notification before starting any construction projects by Ethiopia.
During the Egyptian-British bilateral rule of Sudan, Egypt and Britain signed an agreement in 1929. The agreement focused on using the Nile water for irrigation, whereas, in the agreement, Egypt requested to abide by its complete freedom regarding the negotiations that precede the conclusion of an agreement on Sudan. Besides, the agreement also stipulated that Sudan would not build any dam on the Nile and its branches or on the lakes from which the Nile originates, whether in Sudan or the countries under the British colonial rule. Britain agreed to Egypt’s requirements and confirmed the recognition of Egypt’s natural and historical rights to the use of the Nile River waters.
After Egypt gained its independence and with the growth of the population and the increase of the development projects, Egypt wanted to store water for use in agriculture, irrigation and electricity generation, so Egypt started building the High Dam in Aswan, and also Sudan started building projects. The importance of the Nile River between the two countries increased, as a result, the two countries signed an agreement in 1959. The agreement stipulated that Sudan’s yearly water allotment would rise from the 4 billion cubic meters to 18.5 billion cubic meters. The 1959 agreement also recognized the rights of other Nile Basin countries to the Nile waters. According to the agreement, whether any of the Nile Basin countries want to claim their rights, then Egypt and Sudan will negotiate and reach a unified solution. In 1993, Egypt and Ethiopia signed an agreement, and Ethiopia agreed through a framework with Egypt that Ethiopia would not build any structure that may harm Egypt’s interests over the Nile River and impedes the entry of the Nile waters to Egypt, but the agreement was not bound by international law. We can see that the1929 agreement and 1959 agreement affirmed Egypt’s water rights for the Nile River.
The tension between Egypt and Ethiopia over the Nile’s water arose in the middle of the twentieth century, particularly, when Ethiopia had announced the construction of the Grand Ethiopian Renaissance Dam Project(GERD) in 2011 on the Blue Nile tributary which started in Ethiopia. The goal of the construction of the Renaissance Dam is creating one of the world’s biggest hydroelectric power plants. However, the construction of the Dam has caused a row between Egypt and Ethiopia. Egypt is upset because the Ethiopian Renaissance Dam Project will directly and negatively affect Egypt’s interests in the Nile River.
The role of the International Law
Before examining Egypt’s legal rights on the Nile River, its very important to turn first to the international law. Until the early years of the twentieth century, there were no rules to determine how to use the international river waters among the countries. The relations between countries related to the use of the international river water began to complicate and the conflict among states seemed over how to use the water of the river. So, international law defined some rules and theories in order to regulate the relations among states and the use of the shared waters between them.
The theory of Absolute Integrity; this theory does not allow river states to use river water in a way that harms the rights of other river states. Every country whose international river runs in its region has the full right to keep the flow of Nile water in its region without reducing the percentage of water that reaches it. The political borders do not separate the river from its source to its mouth. So, when any country wants to build any structure on the river or its branches, it must first inform the countries that share the same river it with. The theory of Common Natural Resources; this theory was founded on the principle of good neighborliness and aims to the equitable utilization of international river waters between the riparian countries. According to the above theories, Egypt will offer several justifications under international law to support its claim and protect its right in the Nile River. Egypt will argue that the agreement between Britain and Ethiopian Empire which signed in 1902 confirmed that Ethiopia agrees to not take any measure that would harm Egypt’s interests on the Nile River. The treaty also precludes Ethiopia from building any projects that will affect Egypt. Egypt also has argued that 1929 and 1959 agreements between Egypt and Sudan, the agreements imposed a duty on Nile River Basin countries to take measures to prevent causing harm to other states sharing the Nile waters. Its worth mentioning that Egypt has already started diplomatic negotiations to resolve the dispute with Ethiopia, and the last of these negotiations were held in Washington.
The purpose of the international law is to fix the problems and disputes that might arise among states. Nile River crisis is a major dilemma among the Nile Basin countries in the African continent. Egypt is one of the oldest civilizations that developed along the Nile River banks relies on the Nile waters for agriculture, irrigation and industry and so on. Thus, Egypt would justifications under international law (international watercourse) to secure its right over the Nile River.
Civic and Ethnic Nationalism in a Populist World: Behind the Facade of Dichotomies
The Rise of Anti-System Politics
The walk into the twenty-first century is marked by enormous structural shifts. The rise of neoliberal capitalism and the vulnerability created by financial crises has mobilized the politics of resentment. This process of asymmetrical development has created both the winners and the losers of modernity. The nuanced horizontal and vertical inequalities are giving rise to what Jonathan Hopkin calls the ‘Anti-system Politics’ or simply populism. This phenomenon is marked by the tussle of two homogenous groups; the people and the elite, which are at loggerheads with each other.
However, there is not any stream of anti-system politics; rather it falls at both ends of the political spectrum; left and right. It is marked by the Pink Tide in Latin America, rise of nationalist strongmen in the Central and Eastern European states, Hindu nationalism in India and the white ethnic nationalism in the Anglosphere. And the reason why the materialization of populism is distinctive in the spatial-temporal zones is because all the states have different welfare systems. They have distinct ways of filtering the effects of socio-cultural or economic changes. In doing so, they cushion some groups while exposing others to risks. In such a scenario, populism with its alternative action channel fills in the vacuum through its ‘moralist appeal’ to reclaim power of ‘the people’.
Both populism and nationalism being mass movements hold a focus towards the collective. And the ‘empty heart’ of populism with its ambiguous definition of the people, finds ‘elective affinities’ with nationalism. This profusion has further tangled the varying streams of anti-system politics. However, there are two similarities. First, all anti-system politics is about caching power. And secondly, it acts on myths of dichotomies. In furtherance, when the Kohnian civic ethnic distinction is applied to right-wing left-wing populism, the conclusions become mostly erroneous. It leads to an assumption that right-wing populism is nativist, exclusionary, and ethno-cultural by nature whereas left-wing populism is more inclusive and civic.But both civic and ethnic dimensions of nationalism are the part of populist politics.
The right-wing populism of the BJP in India, Tea Party wing and Donald Trump of the Republican Party in the US, Le Pan in France and United Kingdom Independence Party in the UK are all marked by an appeal to right-wing populism. But in addition to that, these movements are not ethno-nationalist in the Kohnian sense rather they are ‘ethno-traditional nationalist’.And they instrumentalize the civic nationalist narrative to broaden their vote-base. This is precisely the justification of exclusion carried out in civic terms as the biological language is replaced by an ideological one.
Political Entrepreneurship: Instrumentalization and Mobilization
The political entrepreneurs: in both electoral populism and populist movements, act as an agency for strategically articulating the latent grievances. Thus, both the demand and supply side perspectives are crucial vantage points for a prudent analysis of the populist rise.The demand-side resentment is both addressed and tailored by the supply-side entrepreneurs through the perspective of nationalism.
In electoral populism, dissent is instrumentalized and it is mobilized through nationalistic appeals. Populism coupled with nationalism leads to the radical right-wing politics that it is witnessed in both Eastern and Western Europe, Latin America, and South Asia. Both the ideologies indicate a sense of social closure in one dimension or another. It is done by fixing what Bankim Chandra calls the ‘cultural attitudes’ which limit the sense of inclusivity and pluralism. But the question is why to appeal to the people on national, cultural, or ethnic grounds? Isiah Berlin suggested in the 1960s that nationalism is a core characteristic for the success of any political movement. And as both the ideologies are an antithesis of an open society, their profusion generates cognitive, social, and political rigidities.
The political entrepreneurs utilize these ‘banal’ ideas to introduce their own political agenda. It helps in building a foundation of the new system on the entrenched realities of the old system. A case study of various electorally successful right-wing populist parties like the Swiss People Party in Switzerland, French National Front of France, National Democratic Party of Germany and Pim Fortuyn List in Denmark indicate that populist leader or political entrepreneurs who make use of national ‘symbolic resources’ with a civic appeal perform better in their political system. And the civic nationalism in the West provides the platform to the radical-right populists who attain and maintain their share of power based on civic values without undermining their exclusionary ethno-traditional policies. Civic and ethnic nationalism are the means to attain the ends of populist politics. The political entrepreneurs tactically oscillate between both the civic and ethnic dimension of nationalism by persistently engendering a sense of threatened ‘bounded moral community’ at risk from the outsiders.
Akin to electoral populism, populist movements use grievances as a latent force. But that does not explain why the anti-immigration protests by PEGIDA were not instigated prior to 2014, or why the Occupy Wall Street movement came after the major shockwaves of the Great Recession were absorbed. To explain this there is a need to understand the role of political entrepreneurs as opportunity seekers who articulate the shared grievances when the time is ripe to fulfill their agenda backed with shared resentments.
Populism and Nationalism: A Bi-Dimensional Analysis
In all mass movements, ‘sociological necessities’ are invented and instrumentalized by the political elite. Nationalism and populism are no exceptions. A national myth is invented through a common heritage and mobilized through horizontal differences. Whereas the populist myths are brought back from ‘under the rug’ and mobilized through vertical antagonisms. And when combined, this the bi-dimensional dissidence defines the politics of the new age.
The resentment against those at the top and outsiders are mutually constitutive of the populist politics. The right-wing variant of this infusion criticizes multicultural politics, acceptance of refugees and the elite’s consideration of the indigenous population as xenophobic. This is the prime scene in the European and North American contexts as Hilary Clinton reportedly called Trump’s supporters as ‘basket of deplorables’. Such differences accentuate the need of people’s sovereignty over the state. And because the ethnic/cultural nationalism signifies ‘the people’ over the nation, it is easily juxtaposed with the populist discourse.
The ‘civic nationalism normalization’ strategy is used to disguise the exclusionary cultural politics behind the facade of legitimizing only the interests of the in-group. The Front National (FN) and the Alterative for Germany (AfD) both use a value-laden out-grouping of the Muslims based on their anti-Islamist agendas. And they instrumentalize civic nationalist discourse to legitimize their claims that Muslims are not an outgroup based on their ethnic descent rather on voluntarist reasons as they do not adhere to the democratic values. This is a supply of populist ideas through nationalist channels; covertly ethnic/cultural and overtly civic.
Manichean Myth to Chameleon Reality
Nationalism has its roots in the Greek city states and was crystallized as an idea of organization in the treaty of Westphalia in 1648. During the decolonization from 1945-1960, nationalism was at its pinnacle. However, since then it has been on a downward trajectory. But the populist utilization of the nationalist concepts has given it a new color. The entrenched resentments are being voiced not just by the minority ethnic/cultural groups but also the majority who feel threatened by the minority’s rising rights and political participation in what Rawls calls the post diversity era. The Muhajirs in Karachi are a classic example of a chameleon nationalism which has utilized both ethnic and civic strands to widen the vote base. Both the political movements, populism and nationalism are political projects which are in continual process of transition.
Despite modernization, the center-periphery distinction still pertains based on a deliberate exclusion of the peripheral identities to form a homogenous power circle at the center. And the grievances and opportunities created in this gap are mobilized and exacerbated by the political entrepreneurs. And the infusion of populism and nationalism are changed with the changing socio-political and economic contexts to cache the rising opportunities. The right-wing populism is not based on rigidities of objective identities but on the flexibility to catch the opportunity situations.
The ethnic groups too are not homogenous which indicates their divided politics to gain benefits. The myth of groupism is instrumental not factual. In this way they utilize both civic and ethnic nationalist appeals firstly, to cater to their in-group and secondly, to widen their prospects of political ins. In this way their politics becomes amorphous which is easily utilized by thin ideology like populism and the mix generates popular differences.Thus, the ethnic conflicts in the populist world are not the pure outcome of ethnic groups rather of ethnic organizations and populist political entrepreneurs.
Ethnic and cultural nationalism are not primarily nativist rather opportunistic. The populist world has provided nuanced avenues for the articulation of the ethno-cultural resentments which are exacerbated by the modern inequalities. However, the Kohnian civic-ethnic dichotomy is too rigid to explain the anomalous instrumentalist nature of the populist movements which build up on the combination of both ethnic and civic nationalism.
The analysis suggests that the populist world is a juggernaut of various thick ideologies which are used as an opportunistic context to propagate the agenda of the political entrepreneurs. Civic and ethnic nationalism were relevant before and instrumental now. They are both entrenched and tailored, natural, and transitive and contextual and opportunistic. Hence, the idea of nationalism is in a vicious cycle of constructive usage by the populist leaders and not merely a matter of some fixated identities.
Before the coronavirus in late 2019, there was a rise of a counter-populist wave on the fringes as observed through the leaderless protests where the middle class who once supported the populist movements was ‘revolting against the revolt’. However, the rise of the pandemic exacerbated a kind of nationalist populist response.Now the question is about who writes a better political bargain to satiate the rising middle class and that shall determine the course of future politics.
Refugees In The Outbreak Of The Pandemic
The COVID-19 today is having an adverse impact on our lives although it has brought exceptional changes in climate and human behavior. The increasing number of refugees and internally displaced persons in the 21st century explains the intensified global scenario. The refugee crisis is the greatest humanitarian crisis the world has ever seen where most of them are internally displaced persons. Yet, they are humans with unique life experiences; they had dreams, children who are dwelling hopes of normal life, and a better tomorrow. The mothers are longing to return home, fathers yearning to work again, and an identity. Leaving behind their homes, being prosecuted from the country, and losing their loved ones; refugees had gone through the worst of time. Refugees are the worst sufferers in this 21st century. Around 80 million homeless people in the world most of them are from Syria, Afghanistan, South Sudan, Myanmar, and Somalia. The Syrian crisis reported being the greatest refugee crisis in the world. The United Nations also estimated the women and children to be the worst sufferers.
The refugees were tormented by years of poverty, poor health, and lack of basic infrastructures like education, food, health care, sanitation, social security, and etc. Humanitarian organizations have stretched beyond their capacity to help millions of refugees over the years. The WHO and UN Refugee Agency have signed new agreements to provide health services and benefits to the displaced and vulnerable population around the world. Among the 79.5 million forcibly displaced individuals lacks access to clean water or soap. Despite social and economic setbacks due to the pandemic, health is still the paramount factor affecting the poor and homeless. During the COVID-19 situation around the world food, medicine or sanitary products and even clean water have become inaccessible for many refugees. Social distancing has become a major concern in the refugee camps.
The COVID -19 is severely affecting the education of the children in the refugee camps. In the refugee camps only 63% of refugees are enrolled in primary school and 24% in secondary education where most of the children are left out. The limit in pursuing education continues potentially in the refugee camps and its worsening due to the pandemic. There is a growing possibility of discrimination and xenophobia is affecting the process of socialization in their host country. Nevertheless, an unequal world with challenges to achieve education and skill training for self-development must be ceased.
In Yemen, more than 3 million people have been displaced and approximately 17 million require food. Yemen’s health facilities have either been destroyed or damaged in the conflict and with the unbridled transmission of COVID‑19 in Aden; Yemenis are living through the worst humanitarian crisis. Only a few health centers are operational in Yemen where the numbers of patients suffering from malnutrition, cholera, dengue fever, and injuries of war are very high.
In India almost 18,000 Rohingya refugees are taking shelter where thousands of them live in densely populated settlements in preposterous conditions; a third world country with the second-highest population in the world. India can hardly feed its population and especially it hosts a huge number of Refugees. Tibetan and Sri Lankan refugees have access to certain rights as assisted by the government, while the Rohingyas are still struggling for it. But, in Bangladesh, the WHO is working with governments to secure the health of nearly one million Rohingya refugees against the multiple threats of the pandemic and including natural disasters in the upcoming monsoon season.
The COVID-19 is increasing the needs and vulnerabilities of the Refugees. The United Nations High Commission for Refugees (UNHCR) is concerned about the collateral effects of the pandemic among the Refugees. According to the UNHCR’s Assistant High Commissioner for Protection, due to the degrading socio-economic plight of the forcibly displaced people and poverty among them has made them a target to several traffickers that are immorally exploiting and profiteering from their culpability. The adolescent girls and children have become the victims of sexual exploitation, forced labor, slavery, and organ removal, forced recruitment into armed groups, forced marriages, or forced begging. The COVID-19-related impacts on restricted movements, closures, or availability of proper help, support services are put to constrain. The pandemic has limited the opportunity for the refugees, particularly women to seek legal support for sexual and gender-based violence.
On the World Day against Trafficking, the United Nations Office on Drugs and Crime, UNHCR proposed for support in the prevention of trafficking and response efforts globally. The Governments and humanitarian actors together must ensure and assist the victims of trafficking
mostly among the displaced people where they are in immediate need of protection. A major initiative was taken by the WHO Eastern Mediterranean Regional Office (EMRO) to monitor the events and trend of COVID-19 among displaced populations in camps and non-camps settings for their safety.
Resources are available in scanty, refugee camps and settlements are becoming overcrowded and many are being forced to sleep outside in freezing temperatures during the winters. For those living in refugee camps or camp-like situations, they also face an increased risk of COVID-19. In refugee camps, it is difficult to practice public health measures like frequent hand washing or social distancing. Therefore, it is also the responsibility of the host government to provide aid and essentials to the refugees living in their country. But in many cases, the host governments don’t have enough financial capability but can arrange testing services in certain regions, regardless of whether an individual is a national or a refugee. Secondly, even though high-income countries are currently most affected, they need to assist low- and middle-income countries because those countries don’t have the means to deal with COVID-19. The outbreak of the pandemic in populous and poor countries will put the rest of the world at continued risk.
It’s true of the fact that the world was not prepared for a pandemic and COVID-19 does not respect any boundaries. But, the governments should not use pandemic as an excuse for applying repressive policies. Efforts should be made spread information in every camp that have limited source to reliable information about COVID-19 and measures of protection.
Understanding the unlawfulness of the Law of Armed Conflict
The contravention of rules outlined in the Law of Armed Conflict has created an environment of exploitative exceptions in the understanding, and applicability of human rights and security in theatres of modern warfare. As these exceptions pave way for the proliferation of national might in the name of national security, and combatant safety, the human suffering for non-combatants also witnesses a proportionally massive upsurge. The changing (mis)understanding of these regulations calls for a review on the accountability and necessity of jus in bello, and its weakened importance under the ambit of the law of armed conflict, and the greater International Humanitarian Law.
More than often, man-made conflicts have been responsible for the decimation of life and property around the globe. Even though human casualty stands divided between conventional and non-conventional threats in a modern world, the protraction of man-made conflict is mainly responsible for loosening up tides after tides of bloodshed for physical or territorial gains. However, with the advent of the prospect of domestic/international accountability, and a fool-proof system of checks and balances, mankind’s warfare is held by tighter strings of transparency and justifiability, adorned by rules and regulations. Nonetheless, it is very important to analyse and understand if its techniques of armed conflicts and subsequent regulation are stringed by laws of conduct to create a policy of accountability and fairness equally amongst participating parties or are riddled with discriminatory practices, apropos to an obscure understanding of who is sacred and who is profane. Rather unsettling, the horrors of war have time and again been governed with a rather small yet informative account of jus in bello (justice in war) or the law which governs how warfare is conducted, centred in the Law of Armed Conflict.
Jus in bello falls within the ambit of the International Humanitarian Law (IHL), and as the semantics suggest, it indeed is purely humanitarian in its objective to limit human suffering in modern warfare through a strict set of pre-decided rules. Jus in bello is independent of the questions about the reason for war, or its basic rules, which in turn is explained by jus ad bellum(the law of waging war). Jus in bello, if we analyse through its literary content, consists of two parts. The first part explains principle determinants for a proper quantum of force required in armed warfare if limiting warfare is ever the case in humanitarian laws. The second part guides us through limitations and prohibitions in warfare if not complete cessation, which reminds of the old age tradition of centripetal discussions around international peace and security, albeit to no practical effect. In contrast to the humanitarian nature of the IHL, the first part of jus in bello aims to indulge the parties in conflict with a categorised, and diverse set of paradigms for use of violence. In a dubious exception, it can also encourage the parties to use toolkits of violence on adversaries, if it is justified with international/domestic military necessity, regardless of the means of interpretation, e.g. Turkey’s raid over Syria. Nonetheless, the rule of active distinction in IHL between combatants and non-combatants aims to impose limits on destruction and suffering in armed conflicts. However, the interpretation of the exceptional military necessity, proportionality, and distinction (MNPD) principles in IHL makes the death and injury of non-combatants casual, by emphasising on the miscued understanding that any unintentional attack with extreme unaccountability on non-combatants can, and will be classified as “collateral damage”. It ends up giving a sense of irresponsibility, justifiability, and immunity to the unprejudiced actions of the armed combatants since their actions are no longer a criminal or civil liability.
Fortunately, the second part of jus in bello adheres to the responsibilities in humanitarian law and imposes strict, absolute limits on certain instruments and modes of violence which can most certainly, if given a free hand, increase human casualty and suffering. These rules are extremely significant and cannot be exploited for potential military advantages. It is extremely altruistic to non-combatants. Nevertheless, a major limitation of the second part, as a general exception concerns the legality of warfare in the treatment and torture of prisoners of war by nation-states, regardless of the combatant and non-combatant status. One such example of that exploited limitation is the question on the authorization of torture, and indignation by US Personnel in the infamous Abu Ghraib prisons, which is backed by a textbook excuse that under US military commissions, information acquired through torture, generally inadmissible in domestic US civil/military courts will be considered as evidence for the sake of its internal security, and can ignore international laws and declarations. Fundamentally, even though this rule is in contrast with The Military Commission Act of 2006 section 6 (c)(1), the international organisations, honouring their commitment to the UN Charter Chapter 1, Article 2(7), limit their intervention in the matter. This is even though the US has ratified UNCAT Convention against Torture, and stands in clear violation of international decrees.
Moreover, the penumbra veiling the opacity of scores of military commissions, omissions and laws in this particular matter by different nation-states has threatened to unsettle various humanitarian provisions in jus in Bello, to evolve with the growing needs of armed conflict, primarily after the US’s war on terrorism. Major western nation-states like the UK and the US have called for a case by case approach into evidence gained from torture, taking a cue from Churchill’s “supreme emergency” dictum, henceforth, threatening to make torture a tool of plausible military necessity, which is unproportioned and discriminatory towards non-combatants.
Articulating the terminology change in IHL over due course of time, and an itemization of new crimes post-World War II, it is to be brought into notice the alarming plethora of provisions that have changed course in jus in bello. Regardless of the differentiation between combatants/prisoners of war, and non-combatants in Article 37(1) of Additional Protocol I and Article 44 of Protocol I of Geneva Convention, the lack of trust among state actors over doubtful logic and morality due to the inclusion of irregular fighters, non-state actors, and foreign fighters in modern warfare leads to unprecedented failure to comply with the second part prohibitions. This has resulted in the loss of a great majority of non-combatants in the conflicts of the 21st Century.
Furthermore, with the increasing reliance on tech-based warfare to minimise combatant casualty among state actors, WMDs have been the instrument of choice against the belligerent party. Unfortunately, the volatile firepower of such weapons, as well as its unprejudiced understanding between combatants, and civilians are judged under MNPD principles. Regardless of its clear military, and political danger over misuse, it is still accepted frivolously in the international community, and among state actors as a weapon of choice. The existence of nuclear weapons even after strengthened efforts towards non-proliferation, and its evolving doctrines of use among various nation-states, is an example of this effort to sham jus in bello, which is acting towards effective distinction in conflicts. The concept of the use of WMDs as a possible deterrent or a method of national self-defence is heavily prejudiced and debated in the international legal community, which openly admits that it cannot regulate the legality or illegality of such weapons by a nation-state in cases of self-defence, whatever the interpretation may be. Instead, they added this responsibility on MNPD principles, and un-verified claims of user assessment for self-defence, which technically does nothing to put a halt on the proliferation of WMD usage as an instrument of fear-mongering, e.g. the Democratic People’s Republic of Korea.
In the end, the lack of political will, and international compliance, marred by selfish national interests have worked more to change the law of armed conflicts, rather than strictly implementing it. The increasing reliance on the first part of jus in bello threatens to omit the second part from IHL, resulting in warfare and conflicts in modern times without a leash to save civilians from the unavoidable line of fire. It is high time that the international community takes a stand to promote and propagate the relevance of IHL to preserve the purity of conventions in place years ago, without pressure from major nation-states. These conventions find their relevance even now until mankind in its very nature of gaining more power decides to uproot it once and for all.
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