Application of International Law: Challenges

Introduction:

International Law[1] or the Law of Nations is the name of a body of rules which according to regular definition regulates the conduct of States in their intercourse with each another. International Law is that branch of law which relates to the conduct of independent states who have certain inherent powers and are not subject to external political power[2]. But to the question of whether it is applied evenly throughout the world when ever there was a violation? The answer is apparently a partial yes. Since International Law has different dimensions, on this paper I shall attempt to pick up certain heads or themes and discuss challenges in those specific spheres. Additionally I make an earnest attempt to suggest certain measures through which we could curb the possibilities of violations going unaccounted.

Unrepresentative Security Council

Security Council formed as a tool to balance the power between competing nations, when we talk about Security Council we should go back to the circumstances that lead to the creation of League of Nations instead of United Nations Organization. Now the Security Council as an institutional set up is the giver of corrective justice[3] rather than distributive justice[4] most of the times. Apart from the stated purpose of maintaining International Peace it is a bloc to check the expansionist intentions of superpowers. The world at the moment is neither a unipolar nor a bipolar reality and is essentially a Multipolar set up. With that being the case it must reflect and represent the current day reality because most of the time ideological battles are fought in Security Council over important security issues, this is mainly because of the presence of Russia, USA and China. Members of security council are driven by their own national interests rather than by global justice and international peace. Security Council in its current form is blot on its legitimacy[5]

Syria’s Civil War:

Syria’s civil war is a case in point where there is no agreement on resolution[6] between major powers, with China and Russia on one side and USA on the other. With such a disagreement how can we hold the Syrian government liable for the excesses it committed on the protesting groups?

Resolution on Iraq:

Immediately after US and UK led invasion of Iraq on the premise of Iraq possessing Weapons of mass destruction, US wanted to lift all sanctions which were imposed when it was under Sadam’s regime. Firstly act of aggression is a violation of International Law. By lifting the sanctions through active lobbying US has turned it in to a legally correct invasion and despite the opposition of non-permanent members a resolution[7] was passed for that effect. So it becomes imperative to reform Security Council which reflects the aspirations of developing countries else it will continue to be a forum where super powers play zero sum games[8] with each other.

Totalitarian States and Military Regimes

Though different ideologies propagate totalitarian view but it is also possible that an individual tyrant for eg: a military dictator can usurp power from a democratically elected government and to further sustain the power it acquired through fraud it engages in violation of International Law. Disturbing development is that when they have a tacit support of super powers the crimes these regimes commit often go unaccounted. Therefore the existence of totalitarian[9] regimes and the violations they commit is a grave challenge for the application of the rules of International Law.

Case of Baluchistan:

How Baluchistan has become a part of Pakistan is a painful past. And the state oppression drives the Baluch nationalists to fight against the tyrant administration to establish their human rights and further their cause of Independence; the most shocking violation is how Pakistan as a state engaged in blatant human rights violations since the issue erupted in 1947. Forced[10] disappearances of people of Baloch is a key component in its strategy against the struggle of Baluch independence, which is a grave violation of International Human rights law. But until date we have not seen any tangible and meaningful intervention by the international community. If every state has a right to fight the forces of separatism they have to do with due regard to International law[11] (Human rights and Humanitarian law). Sanctions and strictures do not deter people from committing crime and civilians are continued to be killed in Baluchistan till date and this violations are expected to continue in future unless they it is forcibly stopped by International Community.

Discrimination as a state policy in totalitarian regimes:

Totalitarian states have discrimination as their policies which are duly supported by their municipal law, just like Nazi Germany and Bolshevik Russia, where the former persecuted Jews and latter denied basic human rights for all opponents under the sun. According to Universal Declaration of Human rights all citizens have equal rights and there should be no discrimination on grounds of ethnicity, religion or minority status. But Pakistan’s constitution[12] says only a Muslim can become a president of Pakistan which is a violation International Law[13] (Civil and Political rights). No one till date could question this discrimination. As a way forward UN must start propagating the idea of keeping religion and affairs of state as two distinct entities which might help to gradually reduce the official discrimination.

Humanitarian law

If there is any domain of International law which is absolutely suffering from non-active support of power bloc it is “Law of Armed Conflict”. The serious problem of all law, and hence of international humanitarian law, is the yawning gap between precepts and practice[14]. Battle of Solferino 1859 helped Henry Dunant to discover how barbaric Human being was and ever since he tried to convince all, that war is indeed destructive and even in afterlife he is still trying to convince through ICRC. It generally insists on humanitarian considerations while two warring parties are engaged in an armed conflict. And primary aim is to ensure that no harm is caused to civilians, also if once armed combatants are disarmed they must be treated humanely. It will not be an exaggeration to say that most of the time perpetrators are not held liable. If we have to go by the dichotomy of International armed conflict[15]and Non-International armed conflict, most of the times violations occur in Non-International armed conflict[16] than the international armed conflict. Peremptory norms of International Humanitarian law are violated every day in this world in one conflict or the other without any fear of liability.

Bangladesh Liberation War:

During Bangladesh’s liberation war Pakistan’s army and state sponsored militia committed grave human rights violations and war crimes, millions of innocent lives [17]were lost who had nothing to do with direct armed conflict. A mass exodus of further more ensued. But the key master minds that were behind this crime did lead a peaceful life and died naturally. The tribunal which was recently established is nothing but justice delayed. Years lapsed, no justice for the people perished. Again International community has not done enough when it comes to ensuring justice delivery for the victims of Bangladesh genocide. Limitation of Humanitarian Law is that it cannot stop beforehand from people getting killed at the time of war, or it is nearly impossible to force belligerents to adhere to the law of armed conflict when they are actually engaged in war or before they are going to start.

Highway of Death:

An important incident on violation of International Law which is committed by US on retreating Iraqi forces during the withdrawal of Iraqi forces from Kuwait, Iraqi invasion of Kuwait was reversed mainly by US Army. If the sole intention was to assist Kuwait to free itself from the Iraqi invasion why should US bomb the retreating Iraqi forces on Highway 80 – A road that runs from Kuwait city to Safwan of Iraq. International Law prohibits the excessive use of force which could cause a superfluous injury. US army literally bombed the Iraqi forces from whom it had no immediate threat, thereby killing thousands of soldiers which is an unnecessary suffering for retreating soldiers and is a violation of very minimum humanitarian standards[18]. The military necessity[19] of killing thousands of retreating soldiers was never ascertained and justified by US Army, therefore it is a clear violation of Jus cogens[20].
Physical elimination of Iraqi soldiers with excessive force is a willful killing[21]. There was never a case to prosecute USA for its act, because US is not within the purview of International Criminal Court.

Conclusion:

Though we have identified serious limitations in applying International law, it is not to discount the fact that even with current limited application of International law much of stability and world peace has been achieved, but that is not enough with this planet continuing to grow beyond 6 billion people and a considerable amount of population being younger generation who can easily identify the untenable argument of unequal application of International Law and the rising state of Multi-polarity affirms that notion. Long gone are days where the governing of global affairs was completely based on uni-polar and bi-polar views and we are in the era of Multipolar world therefore new threats, challenges and opportunities are on the table for the world to embrace. The developed world must realize this fact and ease its grip on world and let everyone to decide their own destiny without being intervened by the super powers, in that direction reforming the Security Council will have a salutary effect. Developed nations must agree that when it comes to violations International Law they are no different from any other country in the comity of nations. Bringing US within the purview of International Criminal Court could set the right tone to start with.

Note: This Paper will be submitted for a discussion which is due to happen on 24 Aug 2013 at Dept. of Legal Studies, University of Madras.

End Notes
[1] Hans Kelsen, Principles of International Law, Rinehart, 1952, p. 3

[2] Roland R. Foulke, Definition and Nature of International Law, Columbia Law Review, Vol. 19, No. 6 (Dec., 1919), pp. 429-466

[3] Coleman, Jules and Mendlow, Gabriel, “Theories of Tort Law”, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.),

[4] Lamont, Julian and Favor, Christi, “Distributive Justice”, The Stanford Encyclopedia of Philosophy (Spring 2013 Edition), Edward N. Zalta (ed.),

[5] http://www.theguardian.com/commentisfree/2013/may/06/un-security-council -Accessed on 22/08/2013

[6] http://www.un.org/apps/news/story.asp?NewsID=42513#.UhVw5pL-HyQ – Accessed on 22/08/2013. Security Council meeting held on Syria

[7] Resolution 1483 (2003) Adopted by the Security Council at its 4761st meeting, on 22 May 2003

[8] Jackson, Matthew O., A Brief Introduction to the Basics of Game Theory (December 5, 2011). Available at SSRN: http://ssrn.com/abstract=1968579 or http://dx.doi.org/10.2139/ssrn.1968579

[9] Primoratz, Igor, “Terrorism”, The Stanford Encyclopedia of Philosophy (Summer 2013 Edition), Edward N. Zalta (ed.),

[10] http://www.hrw.org/news/2011/07/28/pakistan-security-forces-disappear-opponents-balochistan – Accessed on 22/08/2013

[11] Art. 3. Chapter I: General provisions, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.

[12] Art.41 (2) Part III: The Federation of Pakistan, Chapter I: The President.

[13] International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976.

[14] 31-03-2001 Article, International Review of the Red Cross, No. 841, by V. S. Mani

[15] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.

[16] Common Article 3 to the 1949 Geneva Conventions; and Article 1 of 1977 Additional Protocol II to the 1949 Geneva Conventions.

[17] Please see the Bangladesh genocide archive at http://www.genocidebangladesh.org/

[18] Art. 3 (2) (b) Declaration of Minimum Humanitarian Standards Adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, in Turku/ Åbo Finland, 2 December 1990.

[19] International Law, Malcolm Shaw – 6th Edition – The conduct of Hostilities – pg 1184

[20] Finnis, John, “Natural Law Theories”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.),

[21] Art.8 (2) (i) Wilful Killing, Rome Statute of ICC.

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