Analysis of International Legal Enforcement Procedures - Literature review Example

Running Header: Analysis of International Legal Enforcement procedures Student’s Name: Instructor’s Name: Course Code & Name: Date of Submission: Introduction International law is characterized by collective management and this requires formal mechanisms as well as commitments in order to enforce compliance. According to Doran (2009) the process of enforcing international human rights law is important as it ensures successful adherence to the provisions of the human rights law. Enforcing human rights law assists individual and also mobilizes them to impose their power as well as their courage in challenging the abuses of power. Moreover, enforcing the human rights law makes sure that authorities are committed towards observing the human rights under a country’s laws and constitution. Enforcing international human rights law assists countries in ensuring that predictable and stable relationships exist between them and other states. However, effective enforcement of international human rights law is dependent on the procedures that are adopted to implement the rules. Therefore the procedure of implementing international human rights law plays an important role in ensuring that nations consent with it. This research paper is going to analyze the international human rights legal enforcement procedures for protection of human rights in armed conflicts. International humans Rights (IHR) and International Humanitarian Law (IHl) According to the United Nations Human Rights (2011) the IHR comprises of a set of rules which seek to limit the effects that occur as a result of armed conflicts on humanities. The IHR provisions protect people who are not participating or no longer participating in the armed conflicts. Moreover, the IHR rules restrict the methods that are used in warfare. Siasta and Titberidze (2009) note that the IHI and the IHR are complementary sources of commitments in situations involving armed conflicts. The two rules guarantee protection of human rights in situations involving armed conflicts. The U.N High Commissioner for Human Rights Center (2011) asserts that in armed conflicts the IHI is applied and its acts prohibit issues which are related to murder, torture, mutilation, corporal punishment, Hostage taking, cruel and degrading treatment, execution without regular trial and collective punishments. According to Solis (2010) the IHI and the IHR laws focus on protecting all persons and are based on the principles of protecting the life, human dignity and the well being of the society. Both rules are guaranteed and expressed by legal norms in the form of treaties, general principles, customary international law and other sources of international law. The IHR law spells out the obligations of states (Rowe, 2009). It requires the state to act in specified ways or to avoid acting in certain ways so as to protect and promote the human rights and fundamental freedoms of groups or individuals. On the other hand the IHL restricts the use of violence in situations relating to armed conflicts. The government is required to spare those who no longer participate in the conflict and at the same time the government is expected to protect those who do not participate directly in armed conflicts. Additionally, the IHL requires the use of violence up to the level needed to weaken the enemy military ability (Mertus & Helsing, 2006). The IHL creates a balance between the necessity of military and humanity. The State According to Droege (2007) in enforcing the IHR and the IHL in situation of armed conflict it must be determined whether the two rules are applicable. The courts must begin by determining whether the armed conflict meets the necessary conditions and requirements in order for the two rules to be enforced. This requires the court establish whether the state maintained effective control over its territory. The IHL and the IHR provisions require the state to maintain effective and efficient control over its territory so as to protect its citizens from the prevailing hostility. The authorities must ensure effective control over their territory in order to ensure practical and effective respect of the human rights. This means that the regime occupying a specific area must ensure that the law is enforced. The regime must also implement the necessary controls so as to ensure that the well being of the citizens as well as the harmony of persons occupying that territory(Steiner, Alston & Goodman, 2008). Where a state has valuable control over a territory or a person the human rights treaties are applied (Blay, 2007). This means that the courts of Human rights can hold a state responsible for killings that occur as a result of armed conflicts if they are able to establish that the state had the power over the people. The state is held liable in case people are killed because it is assumed that it had control over them. Solis (2010) argues that in the absence of an armed conflict, a state can control the general public and thus it cannot be bound by either the humanitarian law or the human rights law. Therefore, when it is established that the state had control over the people the HRL and the IHR legal provisions are enforced. The UN security council can enforce the IHR rules by offering appeals to the state in order to force it to fulfill its obligations in order to stop the armed conflict (Stoffels, 2006). The United Nations security can also grant power to the peace keeping missions and this can facilitate the provision of humanitarian services as well as assist in protecting and escorting humanitarian relief supplies. Non –State Actors The IHL and the IHR have developed specific procedures which are aimed at imposing specified types of obligations on individuals and non-state actors (United Nations Human Rights, 2011). This is because of the fact that individuals can be responsible for human violations hence the need to hold them accountable. Individuals can be guilty for causing violations to human rights and thus cause severe violation of the IHL. This can in turn amount to crimes against humanity, genocide and war crimes. According to Alston (2006) there is increased consideration that under certain conditions non -state actors can be bound by the IHL. This means that non state actors can be held accountable in matters relating to violation of human rights in situations involving armed conflicts. According to Clapham (2006) enforcing legal procedures requires certain steps to be followed in order to ensure respect of human rights by non-state actors. The IHL applies to all sides involved in armed conflict and in accordance with the thresholds that are set in the human rights law. Additionally, the IHL states that where an insurgent or other movement becomes successful in forming a country’s new government, the new government will be held responsible for the human right violations that may be committed by the insurgents. The threshold criterion requires the government to accept the fact that the insurgents have control of the state and this consequently means that the insurgents have some kind of power and authority. In enforcing the IHR in situations involving armed conflict the governments are required to start by recognizing and accepting the reality that their territories are under armed conflict. The recognition of the rebels by the government motivates it to apply norms as required by the Humanitarian obligations protocol and the common article provisions. The altitude of the government towards the rebels is important as it determines the ability to convince the insurgents to acknowledge and comply with the rules laid down by the government (Solis, 2010). Agreements between the government and the rebels are important as they facilitate the implementation of rules that are intended to protect victims of war from violation of their rights. Therefore, to enforce the international law in relation to human rights, the governments are required to be on familiar terms with the rebels so as to protect the citizens and ensure that their rights are not violated as a result of the conflict. The next procedure in enforcing the IHR law in order to protect the citizens in situations of armed conflicts involves converting the rebels in order to encourage them to comply with the norms as stated on the Humanitarian obligations protocols and in the common article (Clapham, 2006). The rebels should be persuaded to commit to the IHR and also to the IHL so as to ensure eventual protection of the citizens’ human rights. The insurgents should be allowed to participate in the process of building and creating binding reliance on the IHL so as to make them to adhere to the treaties that they may enter into under the IHL. Furthermore, converting the rebels’ enables them to adopt any law relating to the protecting of human rights during the armed conflict. This convinces them to accept the norms stated by the IHR rules hence this ensures that they protect victims of war from violation of their human rights. Moreover, where the rebels seek to form the government, it is important to encourage them to observe the IHL so as to make sure that they are not held liable in case human rights are violated. In addition, facilitating the adoption of commitments, declarations, memoranda and code of conducts by the rebels and this can in turn assist in enforcing the IHR and the IHL (Crawford, 2010). Prasek(2006) observes that where armed groups commit themselves to written codes of conduct , they are encouraged to observe and respect human rights hence this makes them to be able to observe the IHR law and the IHL law. Additionally, when rebels commit to written code of conduct, humanitarian bodies are permitted to offer humanitarian assistance in their territories and at the same time it prevents the rebels from engaging in activities that can lead to violation of human rights. This enables them to further enhance and respect their commitments towards ensuring respect for human rights. Therefore, gaining commitments from non state actors’ acts as an appropriate means of enforcing the international human rights rules as it facilitates protection of human rights by the non state actors. Children According Clapham (2006) the procedure of enforcing the IHR law involves examining of commitments by non- state actors not to recruit and utilize children during the armed conflict. Hervey (2007) emphasizes that monitoring the rebels during the armed conflicts forces them to avoid deploying and using children in the conflict. The IHL and the IHR law require that the non state actors who engage children in armed conflict be exposed in order to create awareness about their illegal activities. O’Flaherty (2006) notes that IHL framework places liability on the non-state actors when it is perceived that they have abused the rights of children. Private Security Firms Enforcing the international law on human rights in situations of armed conflicts necessitate the need to treat private security firm’s as mercenaries. This aims to suggest that they are tainted with illegitimacy and illegality in their activities (Abresch, 2006). The goal of treating private security firms as mercenaries is to ensure that they are held accountable for violations of human rights that may arise during the armed conflict. Blay(2007) states that private security firms can cause state responsibility under the international law on human rights . This can occur when the firms are empowered to act under some governmental authority or when the firms act under the government control. The procedure of enforcing IHR law in this case requires the determination of the firm’s accountability in relation to the international procedures and norms. The UN Human rights monitoring group must determine the role of the private securities in violating the human rights. The group must then consider public complaints regarding to the human rights violations by the private security firm. When the firm is found liable for violation of human rights, court proceedings can be filed against the company. Conclusions Human rights in situations of armed conflicts are protected by the international human rights law and the international humanitarian law. The procedures of implementing international human rights law in conditions of armed conflicts require the consideration of children, the state, non-state actors and private security firms. In enforcing the international human rights law the government is required to accept the insurgents in order to encourage them to adhere to the international human rights laws. On the other hand, the insurgents are required to commit to the international human rights law in order to encourage them to protect the rights of victims in armed conflicts. References Abresch, W.(2006). Human Rights Law of Internal Armed Conflict. European Journal of International Law, 4(1), 1-26. Alston, P (2007), Non-State Actors and Human Rights, Academy of European Law, 3(1) 1-20. Blay, S.(2009). International Law. Oxford: Oxford University Press. Clapham, A.(2006). Human Rights Obligations of Non-State Actors in Conflict Situations. International Review of the Red Cross, 88(863), 491-523. Crawford, E.(2010). The Treatment of Combats and Insurgents Under the Law of Armed Conflicts. Melbourne: Oxford University Press. Doran, M. (2009). Enforcement, Exclusivity and Empathy: Evaluating the Civilian Immunity. UMI Microform: Miami. Droege, C.(2007). The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict. International Law Forum, 40(2), 310-355. Hervey, R .(2007). Children and Armed Conflict. International Bureau for Children Rights, 1(1), 1-30. Mertus, J., & Helsing, J.(2006). Human Rights and Conflict. Washington: United States Institute of Peace. O’Flaherty, M. (2006). Human Rights Monitoring and Armed Conflicts. Human Rights, Human Security & Disarmament, 3(1), 47-57. Patrasek, D.(2006). International Human Council on Rights Policy, London: Oxfam. Rowe, P.(2005). The Impact of the Human Rights Law on Armed Conflicts. Cambridge: Cambridge University Press. Siatitsa, L., & Titberidze, M.(2009). Human Rights in Armed Conflicts from the Perspective of the State, United Nations, 1(1), pp. 1-34. Solis, G (2010). The Law of Armed Conflict. Cambridge: Cambridge University Press. Steiner, H., Alston, P., & Goodman, R.(2008). International Human Rights. Melbourne: Oxford University Press Stoffels, R.(2006). Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps, IRRC , 86(855), 515-546. United Nations Human Rights.(2011). International Legal Protection of Human Rights in Armed Conflict. Geneva: Office of High Commissioner. United Nations High Commission for Human Rights Centre.(2011). International Human Rights Standards of law Enforcement. Geneva: Office of High Commissioner. Read More