What are the ties that bind us together? How can we as a global community share the same ideals and values? In celebration of Human Rights Day, we have asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses.
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“My area of research is complementary forms of international protection, which is where international refugee law and international human rights law merge. Since the beginning of time, there has been an element of compassion in customary and religious norms justifying the acceptance of and assistance to persons banned from their communities or forced to leave their homes for reasons of poverty, natural disasters, or other reasons outside their control. Based on a general conviction that the alleviation of suffering is a moral imperative, many industralized countries included in their domestic migration practice the possibility to grant residence permits to certain categories of persons, who seemingly fall outside their international obligations, but who they considered to deserve protection and assistance because of a sense that this is what humanity dictates. In the past twenty years, many of these categories have become regulated and categorized as beneficiaries of protection, either through a broad interpretation of the refugee concept or through the adoption of new legislation confirming the domestic practice of States, such as the EC Qualification Directive. I find this to be a fascinating area of international law because, it shows how human rights and the notion of ‘humanitarianism’ (i.e. reasons of compassion, charity or need) have generated legal obligations to protect and assist aliens outside their country of origin.”
— Liv Feijen, Doctoral Candidate in international law at the Graduate Institute of International and Development Studies, and author of ‘Filling the Gaps? Subsidiary Protection and Non-EU Harmonized Protection Status(es) in the Nordic Countries’ in the International Journal of Refugee Law
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“My work focuses on the forms and functions of the law when faced with contemporary mass crimes and their traces (testimony, archives, and the (dead) body). It questions the relationship between law, memory, history, science, and truth. To do so, I call into question the various legal mechanisms (traditional/alternative, judicial/extrajudicial) used in the treatment of mass crimes committed by the State and their heritage, especially at the heart of criminal justice (national and international), transitional justice, international human rights law, and constitutional law. In this context I have explored the close relationship between international criminal law and international human rights law. These two branches of law, that have distinct objects and goals, are linked by what they have in common: the protection of the individual. Their interaction culminated in the 90s when international criminal law, and in a larger sense transitional justice, boomed: an actual human rights turn took place with the strong mobilization of human rights in favour of the ‘fight against impunity’ of the gravest international crimes. At the heart of this human rights turn lays the consecration of a new human right, namely, the ‘right to the truth’, which is the object of my current research.”
— Sévane Garibian, Assistant Professor, University of Geneva, and lecturer, University of Neuchâtel, and author of ‘Ghosts Also Die: Resisting Disappearance through the ‘Right to the Truth’ and the Juicios por la Verdad in Argentina’ in the Journal of International Criminal Justice
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“I decided early on to focus in my work on how rights perform when they are put under some kind of strain. That could be panic and fear emerging from a terrorist attack, or resource limitations at national or international level, or political structures that make effective enforcement of rights (un)feasible, for example. It seemed to me to be important to think about the resilience of the language and structures, as well as the law, of human rights because in the end of the day we rely on states to deliver rights in a meaningful way and this raises all sorts of challenges around legitimacy, will, embeddedness, international relations, domestic politics, legal systems, constitutional frameworks, and so on. These are factors that have to be accounted for when we think about what makes human rights law work as a means of ensuring human rights in practice; as a means of limiting the power of states to do as it wishes, regardless of the impact on individual and group welfare, dignity, and liberty. Thus, rather than specialise in any particular right per se, my interest is in frameworks of effective rights protection and understanding what makes them work, or makes them vulnerable, especially in times of strain or crisis.”
— Fiona de Londras, Professor of Law, Durham Law School, and author of ‘Declarations of Incompatibility Under the ECHR Act 2003: A Workable Transplant?’ in the Statute Law Review
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“I have always been interested in the protection of individual rights from undue interference by executive authority. So, my scholarly roots arguably originate in classic social contractarianism. In my work, I have been mostly focusing on civil and political rights, whether in the context of constitutional law, criminal justice, or international (human rights) law. An important part of my research examines the (alleged) tension between ‘liberty’ and ‘security’ and explores how this tension plays out in both domestic and international contexts, often addressing the interface between the two dimensions. National security issues, such as terrorism, have featured prominently in my scholarship, but my human rights-related work also extends to the field of preventive justice, including questions relating to the post-sentence detention of ‘dangerous’ individuals for public safety purposes. A fascinating development that has captured my attention recently concerns the expansion of executive power of international organisations. International bodies such as the UN Security Council have become increasingly active in the administration and regulation of matters that once used to be the exclusive domain of States. This shift in governance functions, however, has not been accompanied by the creation of mechanisms to restrain or review the exercise of executive power. I suspect that it is in this area that much of my research will be carried out in the years ahead.”
— Christopher Michaelsen, Associate Professor, Faculty of Law, UNSW Australia, member of Australian Human Rights Centre, and author of ‘Human Rights as Limits for the Security Council: A Matter of Substantive Law or Defining the Application of Proportionality?’ in the Journal of Conflict and Security Law
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“I specialize in the interaction between international financial markets and human rights, both in relation to (a) understanding international legal obligations relating to socio-economic rights in the context of financial processes and dynamics; and (b) the business and human rights debate as it applies to financial institutions. My focus on these areas resulted from an awareness that as the world economy globalised over the last twenty years, the financial markets changed beyond all recognition to become a predominant force shaping economic processes. Therefore, although they are generally seen as remote from immediate human rights impacts, they set the context of socio-economic rights enjoyment. The practical challenges involved in realising these rights can only be fully understood by accepting the way financial markets shape economic and policy making options, and outcomes for individuals. As this is a huge field of enquiry and many of the connections have not so far been extensively explored from a human rights point of view, my focus tends to be determined by (a) a desire to bring new areas of the financial markets into a human rights framework, and (b) a desire to respond to issues of importance as they arise, such as financial crisis and austerity.”
— Mary Dowell-Jones, Fellow, Human Rights Law Centre, University of Nottingham, and author of ‘Financial Institutions and Human Rights’ in the Human Rights Law Review
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“My research covers a variety of human rights issues, however I have a particular interest in the analysis of domestic violence as a human rights issue. Domestic violence affects vast numbers of people in every state around the globe. The practice of domestic violence constitutes a breach of internationally recognised rights such as the right to be free from torture and inhuman or degrading treatment; the right to private and family life; and, in some circumstances, the right to life itself. However it is only relatively recently that domestic violence has been analysed through the lens of human rights law. For example, it is only since 2007 that judgments of the European Court of Human Rights have been issued which directly focus on domestic violence. Nevertheless, there is now an ever-increasing awareness of domestic violence as a human rights issue, and there have been a number of important recent developments, such as the adoption of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014.”
— Ronagh McQuigg, lecturer in School of Law, Queen’s University Belfast, and author of ‘The Human Rights Act 1998—Future Prospects’ in the Statute Law Review
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“Human rights discourse has been proliferating. Yet I feel that the proliferation of the discourse of human rights does not contribute to the success of implementing human rights on the ground. Perhaps one reason is that human rights scholarship and activism has great appeal to idealists and while idealists whom I admire are good in articulating ideals, they are less capable of carrying out these ideals. I believe that a major difficulty in implementing human rights is the costs of implementation. Human rights organizations may be justifiably appalled by police brutality and urge states to restructure their police forces, but such a restructuring is not costless and it may be detrimental to other urgent concerns including human rights concerns. The good intentions of activists and the scholarly work of theorists (to which I have been committed in the past) may ultimately turn out to be detrimental to the protection of human rights. What I think is urgently needed in order to carry out the lofty ideals is not more human rights scholarship but scholarship which will focus its attention on the best ways to implement the most urgent and basic humanitarian concerns. This is not what I have been doing in my own work but I am convinced it is what needs at this stage to be done. In doing so one ought to constrain idealism in favor of modest pragmatism. Ironically those who can most effectively pursue modest pragmatism are not human rights activists or theorists.”
— Alon Harel, Professor in Law, Hebrew University Law Faculty and Center for Rationality, and author of ‘Human Rights and the Common Good: A Critique’ in the Jerusalem Review of Legal Studies
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“It had long been assumed that the best protection of human rights was a strong, Western-style democracy – if it came to the test, the people would always decide in favour of human rights. Recent developments, however, have challenged this assumption: human rights restrictions introduced after 9/11 in the United States and other Western democracies had strong popular support; the current British government’s plans to weaken (or even withdraw from) the ECHR system seem primarily designed to gain votes; Swiss voters have approved several popular initiatives that conflict with international human rights guarantees. Is the relationship between democracy and human rights not as symbiotic as it is often thought? Do direct democratic systems lend themselves more to tyranny of the majority than representative democracies? What is needed so that the human rights of those in the minority can be effectively protected? These, I believe, are among the most pressing questions that human rights lawyers must confront today.”
— Daniel Moeckli, Assistant Professor of Public International Law and Constitutional Law, University of Zurich, co-editor of International Human Rights Law, Second Edition
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Headline image credit: Canvas Orange by Raul Varela via the Pattern Library.
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By Sascha-Dominik Bachmann
Russia’s offensive policy of territorial annexation (of the Crimea), the threat of using military force and the actual support of separatist groups on the territory of Ukraine has left the West and NATO practically helpless to respond. NATO seems to be unwilling to agree on a more robust response, thus revealing a political division among its member states. This unwillingness can partly be explained with Europe’s dependency on Russian gas supplies but also in the recognition of legal limitations and considerations, such as NATO’s Article 5 (which only authorizes the use of collective self defence in cases of an attack on a NATO member state).
Borrowing the term from the so-called “Jasmine Revolution” of the failed “Arab Spring” of 2011 which challenged the existing political landscape in the Maghreb, it does not seem farfetched to see the events of this spring as the emergence of a new power balance in the region. As it was the case with the two historical examples, the overall outcome will be different from what was initially expected. While some of the protests led, with the deposition of Zine al-Abedine Ben Ali in Tunisia and Hosni Mubarak in Egypt, to actual regime change, soon the “old order” of autocratic governments was reestablished, as the cases of Bahrain, Egypt, and Syria show. It overall also brought Russia back into the region as the main player. Russia’s (re-)annexation of Crimea in April of 2014 is a fait accompli and unlikely to be revised anytime and the ongoing support of separatist groups in the eastern parts of Ukraine where the Russian speaking minority is in the majority, such as Donetsk and Luhansk, has seen an increase in open military combat.
Ukraine is already a divided country, with fighting taking place along its ethnic lines. The break-up of the old Yugoslavia in the 1990s and its ensuing humanitarian catastrophe may serve as a stark reminder of things to come. Yet, it is the prospect of such a civil war which has also removed the necessity for open Russian military intervention; Russia has begun to fight the war by proxy, by using covert military operatives and/or mercenaries. Reflecting these developments and having nothing further to gain from an invasion, Russia announced the withdrawal of regular combat troops from the border this week.
Perevalne, Ukraine – March 4, 2014: Russian soldier guarding an Ukrainian military base near Simferopol city. The Russian military forces invaded Ukrainian Crimea peninsula on February 28, 2014. © AndreyKrav via iStockphoto
The changes to the world since the end of the “Cold War” in 1991 shaped the political landscape and also military strategy and doctrine. What we have seen so far was the evolving of a more liberal view on war as an instrument and continuation of politics — especially in the form of ‘humanitarian intervention’. Examples for this new liberalism in waging war, may be found in the US-led Iraqi campaigns of 1991 and 2003, the war in Afghanistan, Russia’s occupation of Georgian territories during the summer of 2008, the two Chechen campaigns and many more small scale interventions around the globe.
Some of these operations were questionable in terms of legality and legitimacy, and might qualify as the prohibited use of force in terms of Article 2(4) UN Charter. The planning and conducting of these operation would in the future fall within the scope of Article 8 bis of the ICC Statute (in its revised post Kampala 2011 version and coming in force only after 2017), potentially giving raise to criminal responsibility of the political leaders involved.
After adopting a ‘retro’ USSR foreign policy Putin needed and found new strategic allies. In May he entered into a gas deal with China which has the potential not only to disrupt vital energy supply to Europe but also to question the emergence of a future long term cooperation based on mutual economic interest and trust. If these developments herald the coming of a new ‘Cold War’ remains to be seen.
What is evident, though, is that the Cold War’s ‘Strategic Stability’ dogma, which prevented any military direct confrontation between NATO and the Soviet led Warsaw Pact, does not exist in the 21st century. New technologies such as ‘Cyber’ and the use of “New wars” along asymmetric lines of conflict” — which constitute “a dichotomous choice between counterinsurgency and conventional war” — will play a bigger role in the future conduct of hostilities. Such (multi-)modal threats have become known as ‘Hybrid Threats’. Recognized in NATO’s Bi-Strategic Command Capstone Concept of 2010, hybrid threats are defined as “those posed by adversaries, with the ability to simultaneously employ conventional and non-conventional means adaptively in pursuit of their objectives.” NATO decided in June 2012 to cease work on CHT at its organizational level but encouraged its member states and associated NATO Excellence Centres to continue working on Hybrid Threats.
Before the backdrop of the ongoing conflict in Ukraine and the classification of the conflict as a ‘hybrid war’ by Ukraine’s national security chief, this decision might turn out to have been made too early.
Sascha-Dominik Bachmann is an Associate Professor in International Law (Bournemouth University); State Exam in Law (Ludwig-Maximilians Universität, Munich), Assessor Jur, LL.M (Stellenbosch), LL.D (Johannesburg); Sascha-Dominik is a Lieutenant Colonel in the German Army Reserves and had multiple deployments in peacekeeping missions in operational and advisory roles as part of NATO/KFOR from 2002 to 2006. During that time he was also an exchange officer to the 23rd US Marine Regiment. He wants to thank Noach Bachmann for his input. This blog post draws from Sascha’s article “Targeted Killings: Contemporary Challenges, Risks and Opportunities” in the Journal of Conflict Security Law and available to read for free for a limited time. Read his previous blog post on drone killings.
The Journal of Conflict & Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.
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