World Tribunal of Iraq Istanbul, Turkey 25 June 2005
Sixth Session / Global Security Environment and Future Alternatives (Moderator: AyÅŸe Gül AltÄ±nay)
by Christine Chinkin, London School of Economics
The concept of international peace and security in international law has classically been understood narrowly as protecting the political and physical integrity of sovereign states. In its traditional form, state security is centred on the preservation of the sovereign state from external threats and the activities of other states. It thus requires internationally recognised boundaries protected if necessary by military action, prohibition of the use of force between states and non-intervention in the affairs of other states.
Under the UN Charter, individual state security is supported by collective security, that is according the Security Council primary responsibility for the maintenance of international peace and security. The Security Council can authorise the use of ‘all necessary means’ in response to a breach of the peace, threat to the peace or act of aggression (UN Charter, articles 39 and 42). The ‘collective’ is circumscribed in that it is defined simply as the Security Council, rather than as any broader community of states or other interests. The veto (UN Charter, article 27 (3)) ensures the agreement of the five permanent members in any such collective action and is thus a safeguard against contested action. The decision to use the veto is political. The concept of an ‘unreasonable veto’ raised by Prime Minister Blair in the period before March 2003 (when a further SC Resolution explicitly authorising the use of force in Iraq was being sought) has no basis in international law. In Resolution 678 the Security Council authorised ‘all necessary means’ (ie the use of force) against Iraq after the invasion of Kuwait in 1990 but no such resolution was adopted in 2003. The divisions between member states on when the Security Council should authorise collective action has led to the Secretary-General to recommend the adoption of a resolution setting out the principles which will guide it in making such decisions (In Larger Freedom (March 2005)).
Since the end of the Cold War the Security Council has to some extent moved beyond the narrow understanding of state security epitomised by the invasion of Kuwait. It has, for example, authorised collective military intervention in response to humanitarian crisis (Somalia, Bosnia-Herzegovina), internal unrest and conflict (Haiti, Sierra Leone) and refugee flows (Haiti, Iraq). It has also recognised the particular insecurities faced by children and women and that caused by HIV/AIDS.
Collective security is a protection against unilateral use of force by one state (or group of states) against another state with the potential destabilising effect on international relations that entails. Accordingly exceptions to the prohibition against the use of force are narrowly expressed. The only Charter exception to the prohibition of unauthorised force is the inherent right of individual and collective self-defence in response to an armed attack against the state which is preserved within the UN Charter, article 51. The focus upon state security (rather than that of individuals within the state) was emphasised in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use Nuclear Weapons (1996) when it stated that :
… in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.
The state-centred concept of security extends to the assumption that it is state action that threatens the security of other states. This means that less attention has been paid to the role of non-state actors, such as multi-national corporations, in generating insecurity. However in the context of terrorism this has now changed. For example, in the preamble to its Resolution 1368, 12 September 2001 the Security Council recognised terrorist acts as constituting a threat to international peace and security (as indeed it had done in the context of Libya some years earlier) and went further by accepting that force could be used in self-defence as a legitimate response to the armed attacks by non-state actors in New York and Washington on the previous day.
The fact that self-defence is the only Charter-based justification for unilateral use of force has meant that states have endeavoured to present any military action as coming within its ambit, or as expressly or impliedly authorised by the Security Council. The lack of legal certainty this has caused in the decentralised international legal system has generated further insecurity.
Not content with the SC recognition of terrorist acts as a threat to international peace and security and its authorisation of self-defence in response to terrorist acts, certain states, notably the US, have sought to define state security more broadly. In the context of terrorist attacks and the possession of WMD it has been argued that protection of a state’s own borders (territorial integrity) is not sufficient, but that pre-emptive action against another state, within that state’s borders, is required. While there is perhaps little disagreement that UN Charter, article 51 includes the right to anticipatory self-defence (when the need to respond to an anticipated armed attack is instant, overwhelming and the action is proportionate), the conformity with international law of the more far-reaching claim of pre-emptive self-defence (that is the use of force in advance of any immediate threat) as expounded in the United States National Security Strategy, 2003 is highly controversial and largely rejected.
Despite its broader understanding of the concept of security, the SC has not moved beyond state security to adopt any comprehensive approach to the concept of personal security. However other bodies have developed this notion of personal, or human security that looks to individuals rather than to states and state boundaries. The Commission on Human Security Report, May 2005 has defined the objective of human security as being ‘to protect the vital core of all human lives in ways that enhance human freedoms and fulfilment.’
Human security denotes individual freedom from basic insecurities, whatever the root of that insecurity. Insecurity is generated by military conflict between states. Thus the uncertainties in the international legal regime for the prohibition of the use of force and its contested unilateral use as in Iraq in 2003 are a basis for human insecurity. It is also caused by internal conflict, by collapse of state institutions and structures (especially those relating to law and order), by authoritarian regimes, by human rights violations by state agents and by environmental degradation. It also emanates from violence and abuse by non-state actors: by experiencing or fearing terrorist acts; by being (or fearing being) caught up in violence between rival groups; by being targeted by such groups for violence, whether those groups are involved in conflict, or are more accurately seen as criminal gangs; by an environment of random violence which law and order agencies are unable to control. Human insecurity is also caused by violations of economic and social rights such as the right to food, health and housing, as well as civil and political rights such as fearing torture, deprivation of life and liberty. However although denial of human rights contributes to human insecurity and human insecurity generates further violations of human rights, it is a wider concept than human rights. It encompasses physical security, economic security, legal security, political security, food security, gender security and relational security. Human security is perhaps best summarised by the inclusion of ‘freedom from fear’ and ‘freedom from want’ among the four freedoms proclaimed by President Roosevelt during World War Two. The Report on the Commission on Human Security, May 2005 added that it also includes the freedom to take action on one's own behalf, that is the enjoyment of autonomy and self-esteem.
Human security thus goes beyond and supplements state security. The Commission on Human Security Report, May 2005 explains that it complements state security by being people-centered and by addressing insecurities that have not been considered as state security threats. It includes the insecurity generated by the use of force by one state against another (international armed conflict). Insecurity is also caused by state violence within the state and by state failure to provide a secure legal and economic framework and to protect against violence generated by non-state actors. Human (in)security does not depend upon international law distinctions between conflict, military action, internal affairs and police action. In so-called post-conflict situations the forms of violence typically mutate from conflict (bombings, military attacks) into criminal violence (murder, looting, abductions, kidnappings, corruption, armed crimes, organised crime). Where the state government cannot guarantee security within the state, other actors may assume that responsibility, for example an occupying army, or international peacekeepers. However such bodies tend to perceive security within state security terms (or in terms of the security of their own forces) rather than in that of the human security of civilians within the state.
Forms of human insecurity include genocide and gross violations of human rights that constitute crimes against humanity as defined in the Rome Statute for an International Criminal Court, 1998. It has been argued that the use of military force may be justified under international law where it is used to save human lives, that is to promote human security. So-called humanitarian intervention is the classic instance of a claim based upon the security of individuals within the targeted state and where moral and ethical considerations are used to support arguments of legitimacy. The Security Council has given limited recognition to humanitarian intervention (Somalia, East Timor) but there is a great deal of disagreement as to whether humanitarian intervention without Security Council authorisation in circumstances of gross violations of human rights in the target state (such as in Kosovo in 1999) is either legitimate or justified under customary international law and, if so, the circumstances in which it is warranted. The Report of the International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’, 2001 is an important reformulation of the underlying principles of humanitarian intervention and suggests criteria for such intervention. Scholars in the US have also promoted a so-called ‘duty to prevent’, whereby states that are subject to no internal checks on government power must be prevented from developing weapons of mass destruction, or harbouring terrorists. The duty to prevent has been presented as a corollary to the Responsibility to Protect and to the non-proliferation weapons regime. There are three features of the proposed regime: the focus is on the control not just of weapons but of the people who possess them; the emphasis is on prevention; and collective action through global or regional organisation is preferred. Force (when used) should be used alongside and to support diplomacy. Apart from pre-emptive self-defence this is the most explicit - and extreme- claim for the development of new international legal norms for the security needs of the intervening state(s).
Human security is also closely linked with development, as for example through the Millennium Development Goals. In his Report, In Larger Freedom (March 2005), the UN Secretary-General linked freedom, security and development and human rights. He argued that an illiterate person with AIDS who lives close to starvation, but who has the right to vote, cannot be called free. Nor can a woman who lives in the shadow of daily violence be called free. One could also say that these people exemplify human insecurity. In the words of the Secretary-General: ‘Accordingly we will enjoy security without development, we will not enjoy security without development and we will not enjoy either without respect for human rights.’
What is evident from the attempts to extend the instances when force may be legally used by one state against another under international law is that the right to human security of individuals within the target state is likely to be at odds with the same right of individuals within the perpetrator state. For example, in the context of the war against terror, the claim is that to protect individuals within, for example the US from terrorist acts, the US is justified in using force against those within a state supporting or harbouring terrorists (Afghanistan) or suspected of flouting UN SC resolutions and failing to disarm (Iraq). While it is undoubtedly true that all individuals have the right to life and that a state has the obligation to ‘respect and ensure’ the right to life of those within its own territory and subject to its jurisdiction, this cannot be done with disregard of the right to human security of those in other states. While the war against terror is supposedly about human security, its pursuance through war rather than for example through the criminal justice system is deeply destabilising for the human security of all those in the target state. In the case of Iraq it has emerged that there was no evidence of WMD and that the Baathist regime presented no immediate (if indeed any) threat to human security in the US or UK - the leading partners in the Coalition. Arguments for the legality of military action based either on the revived effect of SC resolutions adopted during and after the use of force in Iraq in 1991 or on the need for the removal of an oppressive and brutal regime are of doubtful legal force under the rules relating to state security and ignore the broader issues of the human security of Iraqi civilians. It should also be noted that militarism and military action can also generate human insecurity in the state seeking such action, for example through fear of revenge attacks, anti-terrorist legislation and military rather than social justice priorities.
Many Iraqis suffered great insecurity throughout the previous repressive regime with its disregard for human rights and through the imposition of economic sanctions since 1990. However, since human rights protection is not synonymous with human security, the removal of the previous regime has not necessarily removed those insecurities, for example the effect of continued disappearance of family and friends. Nor has it necessarily delivered human security for Iraqis. There is no doubt that security for all Iraqis against some forms of abuse has improved since March 2003, but the invasion and occupation of Iraq has also seen the human security of Iraqi civilians undermined in other ways and by a range of state and non-state actors. The lack of formal data about the deaths of Iraqi civilians and the other forms of harm they have suffered (including the refusal by the US and UK governments to collect such data) makes it difficult to quantify the level of human insecurity in Iraq. What is indisputable however is that civilian deaths and destruction of civilian facilities during the active military operations (including through violations of the laws of war), denial of human rights during the conflict and after the cessation of major combat operations (May 2003), the breakdown of law and order and the failure of the authorities to restore it and to protect individuals from the daily occurrence of violence and lawlessness have all contributed to the unacceptable levels of human insecurity.
Examples of human insecurity that have occurred at different times throughout Iraq after March 2003 and have been caused by state actors include:
* The use of cluster bombs and other weaponry throughout the active hostilities
* Bombings of civilian areas (marketplaces, restaurants, media facilities)
* Military action by coalition forces against targeted areas, for example in Fallujah
* Use of combat forces for policing tasks; shootings, arrests throughout military patrols in civilian areas
* House raids by armed combat forces
* Failure to carry out adequate investigations of deaths and injuries that have occurred through raids, street patrols and other activities
* Detentions of Iraqi civilians without charge or trial; conflation of the use of force against Iraq, the war against terror and insurgency, allowing detainees to be labelled as suspected terrorists and denied the international legal protections for either prisoners of war or those accused of criminal offences
* Use of torture, cruel, inhuman degrading treatment in detention facilities, including sexual abuse and humiliation
* Roadblocks and shootings at roadblocks
* Failure to protect public and private property; failure to deploy sufficiently trained and equipped forces for law enforcement responsibilities
* Failure to redress high unemployment
* Destruction of housing, essential services and failure to restore them
* Inadequate access to health facilities and ill-health caused by such deprivations
Extreme human insecurity has also been caused by non-state actors, for example:
* Extreme violence and intimidation by armed groups opposed to the occupation and regime change committed against Coalition forces, civilians, police facilities, places of religion, government bodies, public spaces. These include bombings, suicide bombs and other terrorist attacks
* Looting of military weapons, proliferation and availability of many forms of weapons
* Looting, hostage taking and killing, abduction, kidnapping, raping by armed groups without effective response from the authorities
* Attacks on oilfields, transportation and communication lines; destruction of private and public property
* Organised criminal activities, black markets etc
* Taken together these various forms of insecurity have inhibited moves for development in Iraq after the end of active military operations and such lack of development is another source on human insecurity.
Some people have been especially vulnerable to violence. These include civilian police and those applying to become members of the police forces, medical personnel, academic personnel, journalists and NGO and civil society leaders all of whom have been targeted by terrorist/insurgent gangs. Children, the elderly and disabled also suffer insecurity from the failure of institutional infrastructures, as well as from the many manifestations of violence.
Human insecurity is closely bound up with unequal relations between women and men and is highly gendered. There are many ways that women suffer particular forms of insecurity that they experience because they are women. Such insecurity continues in the aftermath of military action, and even more so in the conditions that prevail in Iraq. Such insecurity comes both from coalition forces, armed groups within Iraq, religious extremists and from family members and acquaintances. Forms of insecurity stemming from the latter may be associated with, or resultant upon, the invasion, occupation and its continuing aftermath. In addition to the forms of human insecurity suffered by all Iraqis, the following gender-based harms cause insecurity for women:
* Detention, including being detained in order to convince male relatives to provide information
* Torture and sexual abuse in detention
* Loss of male breadwinners and other family members through death, wounding and detentions; uncertainty caused by not knowing the place or likely length of detention of male relatives or their physical wellbeing
* Rape, sexual assault, death, abductions
* Fear of leaving home because of the incidence of public violence coupled with the need to leave home to carry out their traditional family duties, including seeking care for wounded family members, obtaining food and other daily supplies and attending to the needs of children
* Intimidation and harassment for failure to observe forms of dress code, resulting in restriction of movement
* Invasion of private space within the home by house raids
* Domestic violence
* Honour killings, including raped women being killed by their own families, to clear the “shame” of being raped.
* Intimidation and fear of violence
* Murder of women who have entered the political scene and women’s rights advocates and activists
* Denial of, or discrimination in access to economic and social rights including health care, education and employment
* Poverty and vulnerability to being trafficked, forced prostitution
* Inadequate protection from law (continued discrimination and legal subordination) and legal enforcement agencies.
Military action that is deemed to be for the protection of the civilian population creates a relationship of protector/protected between the military forces and that population. Where insecurity is in fact generated directly or indirectly by such forces this dichotomy is exposed as meaningless.
Criminal acts of non-state actors (armed gangs, insurgents, terrorists) are subject to trial and punishment by the national courts and may also reach the threshold of severity that makes them in be in violation of international criminal law. However inadequate and weakened state institutions reduce the likelihood of detention and legal process and much of the response is through further action carried out by military forces rather than by police action. Violence by non-state actors and the authorities’ responses cause an ongoing spiral of insecurity that appears impossible to break.
State actors are also subject to international legal obligations. During the military hostilities the coalition forces were under the obligation to comply with the laws of war. After May 2003, the CPA as an occupying body had the obligation to ‘to restore, and ensure, as far as possible, public order and safety’ (Hague Regulations, article 43). This includes the obligation to ensure food and medical supplies of the population (Geneva Convention IV, article 55); the medical and hospital establishments (Geneva Convention IV, article 56); to maintain the orderly government of the territory (Geneva Convention IV, article 64) and to continue the functioning of penal law and tribunals (Geneva Convention IV, article 64). The occupying force was also bound by fundamental human rights guarantees. These legal obligations go to the heart of human security. Since the formal end of occupation and the handover to the Interim Iraqi Government in June 2004, the Iraqi government is responsible for complying with the human rights instruments to which Iraq is party and ensuring the human security of its citizens. The state has an obligation to exercise due diligence to prevent human rights violations, and to investigate and punish them when they occur. The state’s failure to take preventive or protective action ‘itself represents a violation of basic rights on the State's part. This is because the state controls the means to verify acts occurring within its territory.’ (Velasquez Rodriguez v. Honduras, American Court of Human Rights). Such control may not of course be possible and the state may seek assistance in providing such security. The inability of Iraqi security forces to do so means that coalition forces remain in the country, now as the Multinational Force ‘requested’ by the UN Security Council Resolution, 1546, 8 June 2004.
Iraqi civilians have no recourse against abusive acts committed by the CPA or subsequently by Coalition Forces. Order No. 17, accorded immunity from the Iraqi legal process to personnel of the CPA, Coalition Forces and Foreign Liaison Mission. CPA Revised Order 17 was adopted on 27 June 2004, the day before the ‘handover’ to the Iraqi Interim Government. This continued the immunity into the period of the Interim Iraqi Government and extended its scope. This Order provides that the Multinational Force (MNF), CPA, Foreign Liaison Missions and all international consultants shall be immune from the Iraqi legal process. This immunity extends to foreign contractors ‘in matters relating to the terms and conditions of their contracts’ and ‘with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto.’ Thus legal impunity with respect to the acts of international personnel is added to other forms of insecurity experienced by Iraqi civilians.
States respond to national security issues through defence policies, military spending and arms development and spending. The Commission on Human Security Report, May 2005 recommends two responses to human insecurity: protection and empowerment. Protection requires focus on public safety (rather than military operations) and ‘concerted effort to develop norms, processes and institutions that systematically address insecurities’ while empowerment ‘enables people to develop their potential and become full participants in decision-making.’ Law and order is key to ensuring human security. What is evident in Iraq is that Coalition Forces through the invasion, occupation and since the June 2004 handover have contributed to the insecurity of Iraqi civilians both directly and indirectly and have failed to provide adequate protection against insecurity generated by other actors. Further, while elections and Constitutional change seek to establish new legal, economic and social institutions, they are insufficient mechanisms for protection or empowerment.
About the author:
CHRISTINE CHINKIN (UK)
Advisor to the Office of the UN High Commissioner for Human Rights and Professor of International Law at the London School of Economics. Member of the London Commission of Inquiry that submitted an appeal to the International Criminal Court (ICC) against Tony Blair and members of the UK government that led to the decision that there was sufficient ground for the ICC to launch an investigation on Blair and his cabinet members for breaches of the ICC statute in relation to crimes against humanity and/or war crimes committed during the Iraq conflict and occupation in 2003.