Law
This book presents the case of humanitarian intervention within a discursive theory of international law. It identifies and examines the philosophical and legal concepts which inform the case of humanitarian intervention and scrutinises the pertinent practice. The book explores how legal rules which vie to control humanitarian intervention are moulded by theory and how they inform the relevant practice in cases such as Kosovo, Rwanda or Somalia. It presents the legal and theoretical narrative and its agonising attempts to produce objective, true arguments, to introduce a modicum of morality when faced with hard cases but also to concede a leeway for moral or political relativists. For instance, humanitarian intervention within natural law appeals to modes of justification springing from theistic assumptions such as the moral standing of humans as God's mirror or Kantian ones as partakers of universal reason. The cases of Uganda and Kampuchea should be evaluated in the same way, not according to their effects on the governmental structures but according to how they secured human dignity. Kampuchea was not totally propitious in this regard. Humanitarian intervention stopped widespread massacres at a genocidal level and in this way secured human dignity, but the ensuing situation did not correspond to the standards of human dignity. Following the position developed, cases such as Entebbe and Liberia are included within the concept of humanitarian intervention. Operation 'Restore Hope' for Somalia is marked by the disagreements between the United Nations and the participant states concerning its purposes and means.
Following the conclusion of the two APs, the locus of the development of the law relating to the recruitment and use of children in hostilities moved from the arena of international humanitarian law to that of international human rights law. An article regulating the participation of children in hostilities appears in the 1989 Convention on the Rights of the Child (CRC). However, following dissatisfaction with the provisions contained in the CRC, in 2000 an Optional Protocol (OP) to the CRC on the Involvement of Children in Armed Conflict was adopted to cure their defects. Difficulties in the negotiation of the OP, however, meant provisions on child recruitment were also included in a 1999 ILO treaty, ILO Convention 182 on the Worst Forms of Child Labour. The African Charter on the Rights and Welfare of the Child is the only regional human rights treaty specifically concerned with children's rights.
Although children have always participated in armed conflicts, international law has only recently attempted to regulate their participation. Indeed, although the four Geneva Conventions of 1949 contain a number of provisions dealing with children as civilians, the first treaties including provisions about children's recruitment and use in hostilities were the two Additional Protocols of 1977 (the APs). This chapter examines those provisions. The provisions dealing with the participation of children in armed conflict in AP I appear in Section III, on the treatment of persons in the power of a party to the conflict. AP II departed further from the traditional norms of international humanitarian law than did AP I in that it is concerned with the regulation of non-international armed conflicts. The two APs marked the beginning of the legal regulation of children's participation in hostilities.
General customary international law applies to all states, so any such rules would constitute a minimum standard of behaviour below which states could not fall without being in breach of their international obligations regardless of which treaties they were party. In addition, many of the recruiters of child soldiers are not state governments but non-state groups. Since 1989, not only has there been a number of new treaties covering children's recruitment and use in hostilities, but the issue has been dealt with extensively by the political organs of the UN. In Prosecutor v. Samuel Hinga Norman, the Appeals Chamber of the Special Court for Sierra Leone, while addressing the issue of at what time child recruitment became a war crime, also considered the customary status of the rule prohibiting the recruitment and use of children under 15 to participate actively in hostilities.
The provisions governing the treatment of children in the power of an adverse party in an international armed conflict are extensive. Similar, if more rudimentary, provisions apply to children captured in internal armed conflicts. Child soldiers, particularly those who have been illegally recruited, would seem to fall into the category of victims of neglect, exploitation, abuse, cruel, inhuman or degrading treatment and/or armed conflict. The Machel report pointed out that as of the date of its compilation no peace agreement had formally recognised the existence of child combatants. The Government shall accord particular attention to the issue of child soldiers. It shall, accordingly, mobilize resources, both within the country and from the International Community, and especially through the Office of the UN Special Representative for Children in Armed Conflict, UNICEF and other agencies, to address the special needs of these children in the existing disarmament, demobilization and reintegration processes.
The medieval Christian world held neutrality in low esteem. It could hardly do otherwise, given the prevailing concept of war in Christian thought as a contest between justice and injustice. True to their intellectual heritage of just-war ideas, neither Gentili nor Grotius had a strong conception of a set of rights of neutrals as such. Neutrals were nevertheless recognised as having rights of a sort: the basic rights which natural law accorded to persons and states generally. The so-called 'rights' of neutrals comprised, in reality, an alliance between general natural-law rights and the freedom of action 'left over' when the rights of belligerents came to a stop. Even with the evolution of these sets of basic rights and duties of neutrals and belligerents, a host of practical problems remained relating to their exercise in practice.
The instinctive revulsion of the moralist for neutrality has manifested itself, since 1945, in two principal contexts: the UN and the Cold War. The UN system was a more thoroughgoing embodiment of the just-war outlook than the League of Nations had been. On a number of occasions since 1945, states have invoked the traditional rights of belligerents, and, conversely, duties of neutrals. This chapter looks at some of the principal instances, and also at the approach taken by the San Remo Manual on the various issues in question. The distinctive feature of the post-1945 period is the extent to which sovereign rights have become a substitute for the ordinary rights of belligerents, rather than merely a supplement to them. The chapter looks at the post-1945 practice in two areas rich in pre-1945 precedent: blacklisting and reprisal. It describes the main 'growth area' since 1945: necessity, in the context of self-defence.
The modern concept of humanitarian intervention follows the same doctrinal and operational pattern either as the societas humana which interposes to restore the forfeited standards of humanity and to protect maltreated individuals or the need to restore peace and order threatened by human rights abuses. Because humanitarian intervention is prima facie an assault on state sovereignty, it is legitimised by being integrated into a natural law theory which envisages an enveloping human society. Related to the rationalisation and secularisation of natural law is the projection of the individual who is for Hugo Grotius the ultimate unit in national and international law. Grotius' social contract appears as an attempt for the philosophical rationalisation of the status quo, whereas for the contractual philosophers it is a means for scrutinising state power.
The European Convention on Human Rights, although now just one among many human rights treaties, is certainly the most fully developed and the best observed. By the same token, the institutions created to supervise the Convention, originally the European Commission and Court of Human Rights, and now the new Court of Human Rights at Strasbourg, have through their work provided an inspiring model for other human rights systems. It is vital to lay down in advance the rights and freedoms that must be respected in a democratic society and to create institutions to see that they are observed. In December 1966 the two Covenants and the Optional Protocol to the Covenant on Civil and Political Rights were approved by the General Assembly and ten years later came into force.
Law acquires its purposiveness through identification of certain trends in humanity such as human interdependence, the demand for greater sharing of values and the realisation of an affluent, free society or the attainment of security. These social factors which generate law are reminiscent of the circumstances which inform the social contract. But for the policy school there is a telos to be achieved, human dignity, which leads to value maximisation whereas for H. L. A. Hart and the social contract theorists the telos of survival denotes value minimisation. Humanitarian intervention is linked with strategies for achieving human dignity when it fails in domestic arenas. As it has been maintained, the social contract theory presupposes respect for the rights of the contractors. With the policy school international law overcame its insularity and defensive mood and acquired vision and method.