War, Conflict and Human Rights

Theory and Practice

Chandra Lekha Sriram, Olga Martin-Ortega, Johanna Herman

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351999595
• Edition: 3
• Topic: Law
• Subtopic: International Law
• Index: Law

War, Conflict and Human Rights is an innovative inter-disciplinary textbook, combining aspects of law, politics and conflict analysis to examine the relationship between human rights and armed conflict.

This third edition has been fully revised and updated, and contains a completely new chapter on business, conflict and human rights. Making use of both theoretical and practical approaches, the authors:

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• examine the tensions and complementarities between protection of human rights and resolution of conflict – the competing political demands and the challenges posed by internal armed conflict and the increasing role of nonstate actors, including corporations, in armed conflicts;

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• explore the scope and effects of human rights violations in contemporary armed conflicts, such as in Sierra Leone, Sudan, South Sudan, the Democratic Republic of Congo and the former Yugoslavia;

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• assess the legal and institutional accountability mechanisms developed in the wake of armed conflict to punish violations of human rights law and international humanitarian law such as the ad hoc tribunals for the former Yugoslavia and Rwanda, hybrid or internationalized tribunals and the International Criminal Court;

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• discuss continuing and emergent global trends and challenges in the fields of human rights and conflict analysis.

This volume will be essential reading for students of war and conflict studies, human rights and international humanitarian law, and highly recommended for students of conflict resolution, peacebuilding, international security, transitional justice and international relations generally.

Part I

War and human rights

Critical issues

1 The interplay between war and human rights

Key points

• The study of war and human rights is an interdisciplinary subject, involving knowledge of law, politics, and conflict analysis and resolution.
• Promotion of human rights and resolution of violent conflict are often viewed as being in tension by scholars and practitioners of each.
• The relationship between war and human rights is complex: human rights violations can underpin conflict, can emerge from conflict, and can transform conflicts already under way, and human rights accountability may be a critical demand within, but also an obstacle to, peace processes.
• Peace processes must not only address demands for accountability for past abuses, but also disarm combatants and reshape political processes and institutions of law and governance.
• A wide range of law exists that may be relevant in addressing human rights violations that arise during conflict, falling broadly under the rubrics of international human rights law and international humanitarian law.
• A wide range of responses to past abuses may be developed, through use of domestic courts or through international institutions and processes, including the International Criminal Court and special rapporteurs and advisers on genocide, the responsibility to protect, and on truth, justice, and guarantees of non-repetition.
• Nonstate armed groups and private military and security companies play a critical role in contemporary armed conflicts, and pose challenges to peace processes, but also complicate the application of international humanitarian law.

Overview

This book examines key issues and debates regarding the connections between armed conflict and human rights, both theoretical and practical. It also examines the key legal sources and obligations in both international human rights law and international humanitarian law. And it does so from a grounded, real-world perspective, through in-depth case studies of particular countries involved in and emerging from armed conflict, paying attention to the specific human rights and conflict resolution challenges presented in each, and the compromises ultimately reached. The chapters in Part I examine in detail a wide range of human rights and accountability mechanisms that have been developed, each of which maps to one or more of the country case studies in Part II. This book thus examines an important set of issues that are directly located at the intersection of courses on human rights and international humanitarian law, and courses on conflict analysis and conflict resolution. The approach is explicitly hybrid, mixing disciplinary approaches, policy analyses, case studies, and legal analyses.

War, armed conflict, and human rights

The relationship between war and other violent conflict is complex and dynamic. As discussed later, violations of human rights can be both causes and consequences of violent conflict. Further, gross violations of human rights and violations of international humanitarian law can alter the course of conflicts, adding grievances and changing the interests of various actors, in turn making conflicts more intractable. Where this is the case, conflict resolution can become much more difficult, not least because many issues beyond the original “root causes” of conflict will be at stake, and because trust between the warring parties will be extremely low. Finally, demands for accountability will be made, whether by victims and relatives of victims, by local and international nongovernmental organizations, or by various international actors such as donor countries. The pursuit of legal accountability is often controversial, and is often resisted by one or more of the fighting parties; insisting upon legal accountability may impede negotiations or peace implementation. Nonetheless, there have been numerous attempts to pursue legal accountability while also making peace, and this book will examine many such cases.

These complex problems are both legal and political. Developing useful policy responses requires an understanding not only of international human rights and humanitarian law, but also of conflict dynamics and conflict resolution. We turn next, briefly, to the specific fields and disciplines of conflict analysis and resolution, human rights, and international humanitarian law, which will be developed in greater detail in subsequent chapters. We then address in greater detail the specific ways in which war and human rights violations may be intertwined, and the particular and competing demands and goals of conflict resolvers and human rights promoters.

Conflict analysis and causes of conflict

Conflict analysis, in theory and in practice, seeks to identify the “underlying” causes of conflict as well as to understand the dynamics of conflict once it is under way. In any given conflict there is always more than one cause, although some will be more salient in particular conflicts, as discussed in Chapter 2. Causes of conflict can include mistrust or grievances based upon ethnic discrimination or preferential treatment; competition over resources, whether political or economic; demands for political autonomy or independence; allegations of corruption; and myriad claims regarding current or past human rights abuses. Attempts to resolve conflicts will need to address many or all of these underlying causes, which means that in conflict resolution processes, human rights abuses are but one concern among many. Those seeking to resolve conflict will be concerned with bringing all relevant parties to the negotiating table, including the possibility of defection by some, particularly “spoilers”; building confidence among parties; and addressing the many grievances that parties may have against one another. They may also be concerned with allocating future economic and political resources; guaranteeing security for all parties, particularly those that fear for their survival; rebuilding institutions of law and order; and addressing specific demands for justice to rectify past abuses. They may also be concerned with setting the stage for peacebuilding processes, often with a significant international presence, or with longer-term reconciliation and conflict transformation. Clearly, in many instances, human rights are not the first topic of concern for conflict resolution experts or practitioners. However, as we will see, human rights violations and human rights protections are intimately linked to the patterns of contemporary conflict in a number of ways, meaning that contemporary efforts to end wars have been compelled to deal with human rights and humanitarian law obligations. Encounters between human rights advocates and conflict resolution experts have thus been necessarily uneasy, with each “side” viewing the priorities of the other as suspect.

Human rights violations as causes of conflict

Human rights violations can be both causes and consequences of conflict. We begin with the ways in which human rights violations can generate conflict, with some examples for illustration in Box 1.1. In the most general sense, grievances over the real or perceived denial of rights can generate social conflict. This may be the case where there is systematic discrimination, differential access to education or health care, limited freedom of expression or religion, or denial of political participation, whether based upon race, ethnicity, caste, religion, language, gender, or some other characteristic. These violations may seem relatively minor, particularly in comparison to some of the grave crimes examined later in this book, including war crimes and genocide, but they can still generate real grievances and social unrest. In functional polities, such grievances may be handled through relatively peaceful, constitutional means, whether through litigation in the courts or through legislative reform or administrative policy change. However, in weak, corrupt, abusive, or collapsed and collapsing states, such conflict is more likely to become violent. That violence may be merely sporadic, if serious, or it may give rise to more systematic opposition.

Violent conflict may also emerge where there are more violent human rights abuses – illegal detention, extrajudicial execution, disappearances, torture, widespread killing, or even attempts at genocide. Where civilians have already been targeted by such violence, whether committed by the state or by nonstate actors, it is unlikely that peaceful resistance will have much effect, so it is yet more likely that affected individuals and groups will take up arms to defend themselves. In such situations, then, human rights violations are an important, underlying cause of conflict, although seldom the only one. Once war has erupted, any serious attempt at conflict resolution will also have to address the underlying sources of the original conflict, including abuses of human rights. Otherwise, violence, particularly retaliation for past abuses, is likely to reemerge once third-party mediators, observers, or peacekeepers have departed.

Box 1.1 Conflict and human rights in practice: Northern Ireland, Kosovo, and Sierra Leone

In Northern Ireland, the Catholic community claimed that they were the victims of systematic abuse and discrimination, and sought first to gain reforms through a nonviolent civil rights movement. When that failed, they resorted to the use of violence, and the Irish Republican Army emerged. The sustained denial of fundamental rights, even in the absence of serious bodily harm, can thus promote violent conflict.

In Kosovo, the Kosovo Liberation Army claimed that it took up arms in response to real and anticipated ethnic-cleansing efforts by the Serbs.

In Sierra Leone, the Civil Defense Forces emerged to protect local communities from the predations of both the government and Revolutionary United Front rebel forces.

Human rights violations as consequences of conflict

Alternatively, human rights abuses can emerge primarily as a result of violent conflict. A conflict may have been undertaken by the parties primarily out of concern to promote a political or ideological agenda, or to promote the welfare of one or more identity groups, or over access to resources. Examples abound: the leftist rebels in El Salvador ostensibly fought to redress the massive wealth imbalance in the country and the grinding poverty suffered by the majority, seeking land redistribution and a more egalitarian economic system. However, the conflict with the government that ensued generated vast human rights abuses, such as disappearances, torture, illegal detention, and execution, mostly committed by the government. In Argentina, the alleged threat of communist subversion was used by the military junta to maintain its own power and to engage in systematic disappearances and repression. Conflicts over access to resources, such as diamonds in Sierra Leone, timber in Liberia, coltan in the Democratic Republic of Congo, and oil in Sudan, have taken a great toll beyond the cost to human life on the battlefield, resulting also in wide-scale killing and displacement of civilians, and gross human rights abuses. The vast majority of harm in recent conflicts has been inflicted on civilians, either incidentally or, more frequently, deliberately, in the pursuit of resources as well as political goals. Violations may include human rights abuses such as torture and disappearances, but also frequently include war crimes, crimes against humanity, and even genocide.

Human rights violations as both causes and consequences of conflict

Of course, human rights violations are usually both causes and consequences of conflict, intertwined among other factors. For example, in Sudan, causes of conflict have included concerns about religious repression, access to resources, and control of land, as well as the human rights violations themselves, incurred over the course of the multi-decade conflict. It would be incorrect to suggest that the north-south conflict was generated by attempts of the government in the north to impose sharia on the population of the south, who were largely Christian or animist. It would similarly be incorrect to argue that the conflict in Sudan was over access to oil alone. Rather, religious repression, discrimination, and marginalization based on perceived racial distinctions and geography, and access to resources were at stake in that conflict, which reached a negotiated conclusion in 2005.

Human rights violations as transformers of conflict dynamics

Human rights violations are not only causes and consequences of violent conflict, however; they are also potentially transformative of conflicts and may make their resolution a greater challenge. Thus, conflicts that may begin over resources, religion, or ethnic or territorial claims, may, as they progress, create new grievances through the real and perceived violation of human rights by one or more parties. Further, such violations may reify divides in society, making it easier for leaders to mobilize people – civilian and armed – to violent action. In such mobilization, it becomes easy to demonize the “other,” whether rebel group or state actor, which in turn facilitates not merely killing on the battlefield, but also the commission of further human rights violations. The conflict may be transformed, although not always, into one that is primarily about grievances, identity, and recrimination, even though other causes may have precipitated the original fighting. Further, and this is key from the perspective of conflict resolution, heightened mistrust and resentments make initial negotiations difficult, and may create impediments to long-term peacebuilding and reconciliation. Moreover, it is difficult to convince people and groups who have abused one another to sit face-to-face and negotiate; even if leaders take that step, ordinary individuals might be reluc...