Transformation of international law hybrid wars and disguised

Transformation of international law: hybrid wars and disguised aggression A role for ‘human dignity’? Christopher Mc. Crudden FBA Belfast/Michigan/Berlin

Overview Quick introduction to international human rights law Idea of human dignity? Relevant in conflict situations? Conflicting interpretations of human dignity Implementation of human dignity

Introduction to international law S T A T E S Treaties Custom

Values in international law Sovereign equality of states Security Sustainability Dignity Justice Peace Selfdetermination

Different parts of international law National Minorities Law of Indigenous Peoples Humanitarian Law Economic Law Human Rights Law Environmental Law Criminal Law

Human rights law institutions Human rights law International UNHCHR Human Rights Council Regional ECHR National OSCE

Some characteristics of the international law system No clear hierarchy of values apparent within system No overall mechanism of co-ordination Ultimately based on consent of states International law only one mechanism for promotion of relevant values

Challenges to promotion of human dignity through international human rights law Rejection of the system of international law as a whole, e. g. on basis of religion/realpolitik/rule skepticism Reordering the priority of values within international law, e. g. sovereign equality vs dignity Fragmentation of values between different parts of the system, e. g. WTO interprets human rights concepts Fragmentation within human rights system, with different institutions interpreting human rights differently Weak enforcement and ineffective sanctions for breach

Idea of ‘human dignity’? How do we understand the idea of ‘human dignity’ in international human rights law? Each human person, simply by virtue of being a human person, possesses an intrinsic worth that should be respected Important to distinguish ‘human dignity’ from ‘dignity’ in its older usage, which concerns issues such as: ‘insult’, or ‘honour’, or ‘respect’ for office or status Distinguish also from use of ‘dignity’ in context of states and nations (for example, the dignity of ambassadors, or the dignity of the nation)

Idea of ‘human dignity’? Human dignity is a (the? ) general justifying aim of the human rights system For example: Refah Partisi (The Welfare Party) v. Turkey (Third Section, 2001) 43. (…) Human rights form an integrated system for the protection of human dignity; in that connection, democracy and the rule of law have a key role to play.

Relevant in concrete cases? Also strongly underpinning certain particular rights, in addition to being a general justifying aim Where it does this, tends to be more concrete by emphasizing particular methods in which the worth of the human person must be respected

Human dignity in the ECHR? Article 3 (torture, inhuman and degrading treatment or punishment) Article 4 (slavery, servitude, forced labour) Article 8 (family and private life) Article 14 (discrimination)

Self-determination? Human dignity requires an orientation towards the value of the individual person Dignity and self-determination? UN Declaration on the Rights of Indigenous Peoples Article 3: ‘Indigenous peoples have the right to selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 42 describes the rights set out in the Draft Declaration as “the minimum standard for the survival, dignity and wellbeing of the indigenous peoples of the world”

Relevant in conflict situations? Northern Ireland Judge Fitzmaurice separate opinion: degrading treatment: Ireland v United Kingdom: meaning of ‘degrading treatment’ in Article 3: “In the present context it can be assumed that it is, or should be, intended to denote something seriously humiliating, lowering as to human dignity, or disparaging, like having one’s head shaved, being tarred and feathered, smeared with filth, pelted with muck, paraded naked in front of strangers, forced to eat excreta …”

Relevant in conflict situations? Chechnya Chitayev and Chitayev v Russia (2007) ¶ 154. “… in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right enshrined in Article 3 of the Convention [prohibiting torture, etc]. ”

Relevant in conflict situations? Turkey and the Kurds Öcalan v. Turkey (First Section, 2003) “ 231. (…) under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance …”

Relevant in conflict situations? Turkey and the Kurds Doğan v. Turkey (2004) 154 (…) the authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow the applicants to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country

Relevant in conflict situations? “War on terror” El-Masri v. Former Yugoslav Republic of Macedonia (2012) 248. (…) Article 8 also protects a right to personal development, the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “the very essence of the Convention is respect for human dignity and human freedom” (quoting Pretty v. the United Kingdom (2002), §§ 61 and 65)

Relevant in conflict situations? Human dignity and humanitarian law? In Prosecutor v. Anto Furundžija (1998), para 183 the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia emphasized that the general principle of respect for human dignity was the “basic underpinning” of both human rights law and international humanitarian law. Geneva Convention prohibits: “Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault”

Cultural differences and human dignity? Russian initiative in Human Rights Council E. g. United Nations Human Rights Council passed the resolution entitled ‘Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind’, 24 th March 2011 Attempts to have the notion of ‘traditional values’ accepted into international human rights law Seeks to have concepts at the heart of human rights law, in particular ‘dignity’, ‘freedom’ and ‘responsibility’ interpreted through the lens of the idea of ‘traditional values’.

Implementation of human dignity? Ukraine and access to the aircraft crash site “For us it’s a matter of human dignity, it’s about the possibility of recovering all bodies and body fragments of the crash site, it’s about giving back to friends and loved ones any sort of belongings” (Ukrainian Foreign Minister Pavlo Klimkin)

Implementation of human dignity? Syria and the use of chemical weapons against civilians “Our intelligence shows the Assad regime and its forces preparing to use chemical weapons, launching rockets in the highly populated suburbs of Damascus, and acknowledging that a chemical weapons attack took place. And all of this corroborates what the world can plainly see -- hospitals overflowing with victims; terrible images of the dead. All told, well over 1, 000 people were murdered. Several hundred of them were children -- young girls and boys gassed to death by their own government. This attack is an assault on human dignity. ” (President Obama, August 31, 2013)

Nancy Soderberg, in Human Dignity and the Future of Global Institutions (eds Langon and Arend)

Thank you … … I look forward to a lively discussion