By Clare Frances Moran, PhD candidate, University of Glasgow
The recent revolutions in the Middle East and the subsequent conflicts in Libya, Tunisia and Syria raise interesting questions about the enforceability of human rights norms during times of transition between one type of regime and another. Human rights obligations are generally not owed from one person to another, but rather reflect duties incumbent on States to ensure that the individuals within their jurisdiction do not suffer any infringement of their fundamental rights. It may be the case that the infringement of a right is necessary to serve a greater interest than those of a single individual, but equally there are rights which cannot be infringed under any circumstance, termed absolute rights. When a regime is in turmoil, or when a State is undergoing a period of revolution, it can be difficult to identify which body ought to be held responsible for serious violations of international human rights law and international humanitarian law, which creates an issue for the enforcement of human rights during periods of armed conflict tantamount to a civil war.
The established legal position, stated explicitly in a judgment handed down by the International Court of Justice in 1996, is that international human rights norms, particularly those relating to absolute rights such as the prohibition on torture, persist even during times of armed conflict. This does not preclude the application of international humanitarian law, which prescribes limits on the methods that parties to an armed conflict may deploy in order to achieve their ends, as well as specific protections for civilians. However the enforcement of such norms requires an authority which bears responsibility.
The recent situation in Libya demonstrates circumstances in which the use of human rights norms to protect civilians can appear futile. The protracted violent conflict in Libya concerned disputes over both territories and authority. This lead to confusion as to when the Libyan government ceased to function and when the ‘rebel’ grouping (as rebels may not be considered rebels by those whom they seek to represent) then became its replacement. The National Transitional Council occupied power for just under a year and was recognised by the United States government, among others, as the legitimate governing authority of Libya. However the Council itself stated explicitly on its communications that it did not wish to be considered the government of Libya, despite exercising temporary governmental functions. Its temporary nature is no reason for it not to bear human rights responsibilities, but its failure to characterise itself as a form of State demonstrates a possible reluctance to do so.
The situation in Syria is both somewhat clearer and somewhat more complex. The Syrian government attribute the commission of atrocities to ‘rebel’ groupings and states that its aggressive response is to protect the people, which appears to include the use of chemical weapons. The ‘rebel’ groupings, on the other hand, indicate that they represent the people but yet do not identify themselves as a State or State-like entity. While the Syrian government is in power, it is clear that it has certain international responsibilities in respect of the protection it owes to the population within its political and geographical territory. It may not subscribe to international human rights documents, but it retains obligations under customary international law. However in circumstances where this power is being eroded by a revolution, it is not clear that the government ought to be held to account in the same manner. This is made more difficult when the government seeks to place blame on other agencies: governments have a responsibility to protect their populations against terrorists, but what if the terrorists claim to represent the wishes of the population? These issues are particularly complicated where the State appears not to represent the wishes of the people.
Recent academic commentary, from authors such as Jure Vidmar, appear to associate democracy as a key feature of an emerging State. In this supportive framework, it would appear that those who represent the people have the strongest claim to Statehood. The fact remains, however, that the State is defined by criteria which do not relate to its political power. The requirements are that it has a permanent population, a defined territory, a government and the capacity to enter into relations with other States. The last criterion appears to be the most persuasive, with those entities which satisfy three-quarters of the criteria continuing to exist as ‘bodies’ and ‘authorities’ due to a lack of recognition by the international community.
These issues are particularly critical where the populations of a number of countries no longer seem to wish to accept the governance to which they have been subjected. Already in 2014, another revolution is underway in Ukraine which is anything but peaceful. Where state authorities remain in place, there is scope for holding them to account. However in the days that lie ahead, how should those who seize power be held accountable? This is more pressing in cases of revolution following an oppressive regime where the scope for vindictive treatment is great.
The way in which we identify States is changing and it is possible that the current definition is no longer fit for purpose. What is clear, however, is that there should be a proper framework for attributing accountability during periods of revolution. This may be by rejecting the traditional rights model of human rights as a relationship between the individual and the State, and instead through attributing responsibility to those who hold power over others. These issues require attention by international lawyers in particular where the risk exists at present of an accountability vacuum. In doing so, full accountability can be sought for the violations committed against those who seek to live among the chaos.
An extended version of this piece will be published in J. Carby-Hall (ed.), Essays on Human Rights: A Celebration of the Life of Dr. Janusz Kochanowski, Jus et Lex Foundation in April 2014.