PART 1:- HUMANITARIAN INTERVENTION: AN EVALUATION OF THE CASE FOR THE FORCIBLE REMOVAL OF REPRESSIVE REGIMES UNDER INTERNATIONAL LAW

While the notion of ‘humanitarian intervention’ was not explicitly recognised and addressed by the United Nations Charter, some have argued that the concept of international peace and security appears to have acquired meaning beyond traditional collective security, to one in which ethnic cleansing, genocide, breaches of human rights, as well as grave breaches of humanitarian law, including those encompassed within a state's own borders are considered parts of the security fabric.

This article therefore intends to examine in some detail whether contemporary international law imposes a duty on states to intervene in a third state such as Syria where mass crimes including crimes against humanity or war crimes et al are being perpetrated, although within the confines of the United Nations legal regime. The article will address this matter over two parts with the concluding part published next week.

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INTRODUCTION

The UN General Assembly on the legality of intervention once recognised that: "No state or group of states has the right to intervene, directly or indirectly in the internal or external affairs of any other states...all forms of interference or threats against the personality of the state or against its political, economic or cultural elements are in violation of international law”. It is said that signatories to the UN Charter have delegated their right to unilateral enforcement to the UN, save on the grounds of self-defence where states are allowed to respond to the attack in the circumstances. The Security Council is thus endowed with the responsibility of undertaking executive action in order to prevent, punish a threat to or breach of the peace or act of aggression. The difficulty in ascertaining when an armed conflict constitutes or potentially constitutes a 'threat to peace and security' within the meaning of the Charter is readily apparent in many episodes that have confronted the international community since the adoption of the Charter. In the context of humanitarian intervention, the United States relied on this argument on numerous occasions over the years, most notably in Grenada and Panama. Although some identify a gradual evolution of customary international law permitting intervention by states in the event of humanitarian catastrophe, the Charter's text will undoubtedly be compromised in that event. Against this background, while the removal of, for example, the Syrian regime might be noble and ethical its legality will however be uncertain.


THE UNITED NATIONS CHARTER ON THE USE OF FORCE

Article 51 of the UN Charter which confers on individual states an 'inherent right of individual or collective self-defence' and Security Council authorised enforcement actions under Chapter VII constitute the only exceptions to Article 2(4) which prohibits 'the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations'. The Security Council is accorded primary responsibility for maintaining international peace and security and pursuant to Article 34 may investigate any dispute which might endanger the maintenance of international peace and security. Under Chapter VII, the Council may take any action including the use of armed force 'as may be necessary to maintain or restore international peace and security'. A determination of a threat to peace or breach of the peace made by the Security Council in response to the situations in for example, Syria or Sudan, will serve as a legitimate trigger for Chapter VII enforcement action circumventing the domestic jurisdiction clause of Article 2(7). Nevertheless, a more fundamental difficulty however will be establishing the existence of elements such as humanitarian crises or a disruption to democracy in Syria which have served as a precursor to intervention in the past, most notably in Somalia and Haiti.


THE CONCEPT OF ‘HUMANITARIAN INTERVENTION’

i. Humanitarian intervention brought about by human rights abuses

It is increasingly being accepted that the concept of international peace and security appears to have acquired meaning beyond traditional collective security (envisaged as collective response to armed attack), to one in which ethnic cleansing, genocide and other gross violations of human rights, as well as grave breaches of humanitarian law, including those encompassed within a state's own borders are considered parts of the security fabric. Humanitarian intervention was recognised in the Council's resolution which expressed demand for urgent response by the international community, determining that the magnitude of the humanitarian crises in Rwanda constituted a threat to international peace and security in the region. The Council authorised 'operations aimed at protecting displaced persons, refugees and civilians at risk, using 'all necessary means to achieve these humanitarian objectives'. Humanitarianism was reiterated in the text of Security Council resolution 688(1991) which expressed grave concern over 'the repression of Iraqi citizens leading to a massive flow of refugees towards and across international frontiers and to cross border incursions, which threaten international peace in the region', demanding Iraq to end the repression immediately. If the line of authority espoused in Iraq and Rwanda is to be followed, the displacement of a large amount of the population, who have fled Syria following the political crisis in the country, certainly presents an international crisis and consequently constitutes a 'breach of peace' which falls within the ambit of Article 39, thus requiring enforcement.


TO BE CONTINUED

ARAB LEAGUE SHOWS LEADERSHIP OVER SYRIAN CRISIS

On 6th November 2011, 1worldinternational published a story titled Syria: The Unsolved Problem. In the article, we recommended that tougher measures are needed to be taken against the government of Syria over the human rights abuses committed in its attempts to stifle the voices of anti-government protesters.

1worldinternational called for the imposition of sanctions, the commissioning of a human rights observer mission in the country, greater involvement by the United Nations and the United States and the increased support of the opposition by the international community.

Heart-warmingly, the Arab League has avoided the show of ineptitude exhibited by the African Union in handling the Libyan crisis. It was announced this week that following the emergency session of Arab League foreign ministers in Cairo, Syria’s membership of the organisation was to be suspended. In addition, sanctions were imposed against the government and opposition supporters have been invited to the Arab League headquarters in Cairo.

Perhaps the invitation of the opposition group may be an indication that the group, led by Burham Ghalian, may be a step closer to being recognised as the legitimate government of Syrian, thereby weakening the Assad regime rather significantly. Whether this ends the bloodshed remains to be seen. However, one can only applaud the brevity and courage shown by the Arab League in contrast with the prevarication and impotency displayed by the UN thus far.

THE HUMAN RIGHTS ACT: GIFT OR CURSE?

The incorporation of the Human Rights Act 1998 into the United Kingdom’s domestic legislation was intended to bolster individual rights and freedoms against abuse by bodies exercising public functions. Undoubtedly an ideological masterpiece, it has always been the subject of intense criticism and scrutiny unsurprisingly led by the conservative right, eurosceptics, neocons and the red-top tabloid press. Notably, the Conservative Prime Minister, David Cameron, in an interview with The Sun’s former political editor, George Pascoe-Watson prior to assuming power promised to replace the Human Rights Act with a British Bill of Rights. In an article written by the political commentator Peter Oborne in 2009 entitled Enough Poison about the Human Rights Act: Churchill’s Legacy, the eminent writer claims that the Conservatives are hostile to the Act as it is predominantly viewed by right leaning stalwarts as a Charter for socialism and state intervention as well as an attempt to insinuate into the British legal system a leftwing social and political agenda. While some criticisms levelled against the Act may be justified, the current writer argues that the majority of its perceived limitations generally stems from its ambiguity as a concept and misunderstanding by critics.


Human Rights Act 1998

The Human Rights Act came into force on 2nd October 2000 and incorporates into United Kingdom law rights and freedoms contained in the European Convention of Human Rights. Pre-incorporation of the Act, respected law Lord, Lord Bingham proffered that the passing of the Act would enhance the protection of civil rights and freedoms. In his words, “it would restore our country to its former place as an international standard bearer of liberty and justice.” The Human Rights Act’s intended purpose was its enshrinement in domestic law of the European Convention of Human Rights which sets out a series of basic human rights to which all individuals within the European Union were to be entitled. The Act’s provisions makes it unlawful for a public authority such as a government department, local authority or the police to breach the rights conferred on individuals by the Convention. In other words, the enactment of the Human Rights Act confers a duty on all public authorities to ensure that the sum total of their actions are compatible with Convention rights unless an Act of Parliament makes that impossible. Prior to the enactment of the Act, individuals claiming a breach of its provisions faced the overly burdensome and onerous task of attending the premises of the European Court of Human Rights in Strasbourg, France in order to seek redress; however, individuals now have recourse to justice through the United Kingdom’s Courts and Tribunal systems.

Critics – British Bill of Rights?

Its reception by the media and politicians however has been disparaging at best. Its fiercest critics argue amongst others, that it encourages a compensation culture, results in costly litigation to the detriment of the State as well as stifling journalistic freedom. Perhaps the most damaging criticism is that it undermines national security and public safety. Largely as a result of these criticisms, the current Prime Minister, David Cameron and his predecessor as Tory leader Michael Howard have both advocated the replacement of the Act with a British Bill of Rights and Duties. The Attorney General, Dominic Grieve, has also questioned the credibility of the Act. In advocating the enactment of a British Bill of Rights, he remarked that: “there was no reason why the courts should be bound by Strasbourg court’s jurisprudence if their own interpretation is different.” In addition, the Home Secretary, Theresa May reiterated the Conservative party’s stance towards the Act in asserting that “we did say we thought it wasn’t working, and we are discussing with our coalition partners what we will be doing in that area”. The antipathy towards the Act is not consigned to the right side of the political spectrum. The former Home Secretary under the Labour government, Charles Clarke in a veiled attack on the judiciary following his perceived misapplication of the Act by the judges, commented that ‘the judiciary bear not the slightest responsibility for protecting the public and sometimes seem utterly unaware of the implication of their decisions for our society’.


Public Opinion

Additional evidence suggests that the Act has also woefully failed to capture public imagination. Research conducted and published by the BBC on 12th January 2008 revealed that the majority of Britons think that the Human Rights Act is being abused by people especially immigrants and asylum seekers. Further, the same survey which was compiled and published by the Ministry of Justice in 2004 revealed that 57% of individuals polled believe that the Act was being exploited, especially by immigrants and asylum seekers. The public furore spawn as a result of the Special Immigration Appeals Commission’s ruling on 18th May 2010 that two terror suspects (Abid Naseer and Ahmed Faraz Khan) could not be sent back to Pakistan because of the threat of ill treatment, torture or death at the hands of the authorities has hardly dissipated. As a result, the Act has been blamed by its opponents for the perceived obstacle it constitutes as an instrument in the country’s fight against terrorism as well as an example of the misconceived idea that the rights of foreigners supersedes those of indigenes under the Act.


Unfair Criticism?

Dealing with these criticisms, it is important to note that both terror suspects and their legal representatives were not permitted to view evidence upon which the Court relied at the first instance. Additionally, the Court highlighted the practical impossibility of the deportation of both suspects to Pakistan where terrorist suspects face torture and death following their public identification and vilification as terror suspects by the media in the United Kingdom. In continuum, it is important to note that rather than stifle journalistic freedom, public opinion is generally favourable towards Article 8 which aims to protect citizens from disproportionate media intrusion on their liberties. Also, costly litigation has largely been brought about by maladministration and poor decision-making. There will inevitably be fewer challenges and delays to the judicial system if the initial decision-making process is improved. Moreover, there is no clear evidence of any increase in compensation as feared by the public and erroneously amplified by the media since the incorporation of the Act. Undeniably the decision to allow nine Afghan hijackers to remain and work in the United Kingdom in S & Others (on the application of) v. SSHD bewildered even the most fervent proponents of the Act. An alternative decision however would not only have violated and contravened international legal instruments advocating against the return of asylum seekers to countries where they face ill treatment, torture and death, but would have also jeopardised the United Kingdom’s standing as the international standard bearer of liberty and justice. In addition, an alternative outcome – returning the individuals to Afghanistan – is neither rational nor a proportionate response to the legitimate aims of ensuring a firm and fair immigration policy.


Support

Encouragingly for the proponents of the Act, the Deputy Prime Minister Nick Clegg lent his support to the advocates of the Act in The Times’ publication of 19th May 2010. The Deputy Prime Minister, possibly in response to the assertions of his coalition partners, David Cameron, Theresa May and Dominic Grieve surmised that any government would tamper with the Human Rights Act “at its peril”. Nick Clegg added that the decision about whether to introduce the British Bill of Rights aimed at supplanting the European Convention of Human Rights is to be passed to an independent committee. It is also worthwhile to note that in spite of the Attorney General’s reservations towards the Act, Dominic Grieve has voiced opposition towards the idea of Britain’s total withdrawal from the European Convention of Human Rights. It is also rational to surmise that some of its criticisms stem from its misunderstanding as a concept by the public and its misapplication in some circumstances which has resulted in too much attention being paid to individual rights at the expense of the interests of the wider community. Hence the rights conferred on individuals by the Act are readily forgotten in the face of public outcries in response to unfavourable rulings made by the Judiciary against public bodies accused of violating rights. For instance Article 10’s right to free expression is of immense benefit to journalists, television and radio reporters and the media who are all free to criticise the state and political parties and also, must be able to report news and current affairs fearlessly. Article 14’s freedom from discrimination guarantees equal access to all other rights enshrined in the Convention regardless of sex, race, colour, language, religion, political affiliation et al. In addition Article 6 also enshrines the right to a fair trial which is a key feature in any democratic society. Even to the most ardent critic, it is unarguable that these rights are essential to the protection of the principle of democracy.

Final Rites?

In conclusion, it is premature to pronounce final rites on the Act because decisions unfavourable to the government, politicians and the media have resulted from the application of the Act. It is hastily forgotten that before its incorporation, it was virtually impossible to obtain redress over Acts passed by Parliament. The erroneous decision to abolish the Act in the writer’s opinion will unduly stifle an individual’s ability to seek redress where a public body is alleged to have encroached on individual freedoms. Further, individuals can now rely on ambiguous terms such as family life, privacy, inhumane treatment and the right to liberty in asserting their rights. Also, it is worth noting that the public enquiry into racism at the Yarlswood offenders’ institution, and challenges to the indefinite detentions of foreign nationals without charge were only possible following the incorporation of the Act. Peter Oborne argues that despite the Tory’s publicly aired exasperations against the Act, the Tories have fought important battles for personal freedom, for instance opposing the 42-day detention of suspects without charge, opposing ID cards, opposing unjust extradition, and the poorly designed European Arrest Warrant. In the view of the writer, the Human Rights Act would be subject to less criticism if previous Governments had ensured that the public and wider public sector were better informed about the benefits which the Act confers on ordinary people thereby debunking many of the myths which plague the concept of convention rights and the way they have been applied. It is unsurprising that the incorporation of the Act has coincided with the creation of judicial review, which has strengthened the decision-making process. Inevitably, the legitimacy and transparency of the decision-making process will be enhanced if greater emphasis is placed on the principle of rights protection. It is undeniable that the Human Rights Act is still the most adequate and complete legal instrument which ensures the maintenance of the balance between the interests of society and the protection of the rights of the individual.