Hamas Rule in Gaza: Human Rights under Constraint

Human Rights under Constraint

T. Mukhimer

• Publisher: Palgrave Pivot
• Year: 2016
• ISBN:
  9781137310194
• Topic: Diritto
• Subtopic: Diritti civili in ambito legislativo

Developing a normative framework for evaluating non-state actors in the absence of formally binding obligations, this study is the first detailed human rights analysis of Hamas conduct and governance in the Gaza Strip.

1

Non-State Actors and International Human Rights Law: An Overview

Abstract: This chapter introduces some theoretical discussion related to non-state actors and international human rights. In this context, the chapter argues that the legal status of a given agent under international human rights—whether as a state with a recognized legal personality and ability to be party to any international treaty or as a non-state actor without such recognized personality or ability—is not the only condition for holding such an agent accountable under international human rights law. Any non-state actor remains obligated to uphold human rights insomuch as this actor exercises certain control over a population and impacts the public sphere.

Mukhimer, Tariq. Hamas Rule in Gaza: Human Rights under Constraint. New York: Palgrave Macmillan, 2013. doi: 10.1057/9781137310194.

DOI: 10.1057/9781137310194

A major consequence of the Second World War was the promotion, led by the United Nations, of a global system of human rights—a system that revolves around the state as a key actor with a high capacity for protecting human rights and, at the same time, with a great potential to infringe upon those rights. Individuals, private groups, and other non-state actors were recognized by this system, but only as potential victims of human rights abuses who have little to contribute to human rights violation and protection. While, under this system, the state’s protection of human rights includes the prevention of human rights violations by a third party (e.g., a non-state actor), the state’s fulfillment of its obligation in this respect remains dependent on the extent to which it exercises control over such a third party.

The key principles of this system were laid down by the UN’s 1948 Universal Declaration of Human Rights, the preamble of which entrusts only the state with the task of “the promotion of universal respect for and observance of human rights and fundamental freedoms . . . in co-operation with the United Nations.”¹ The state, in this system, is seen not only as a guardian of human rights, but also as an organ with a great potential to violate them. Article 30 of the Universal Declaration of Human Rights prohibits the “State . . . to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set” in the declaration.²

Because of the state’s potential to violate human rights, the preamble of the declaration stresses that the state’s promotion and protection of human rights would be achieved in co-operation with the UN and, hence, legitimized some international supervision of a state–society relationship. With this, the manner in which a state treats its people was no longer a matter of exclusive domestic jurisdiction, as the traditional notion of state sovereignty implies.³ In other words, by virtue of the UN Charter of 1945 and the Universal Declaration of Human Rights, the international community was empowered with the right to scrutinize the manner in which a state treats its people. This fact was reaffirmed later in several human rights treaties adopted and human rights bodies created by the UN. These treaties and bodies place certain legal obligations upon the state and allow the international community to hold the state accountable should it fail to observe its obligations in these treaties.⁴ In jurisprudence that dates back to 1990, the Inter-American Commission, examining whether non-state actors can violate human rights obligations laid down in the American Convention on Human Rights, summarized the main principles of the global system of human rights with the following words:

[T]he individual rights or rights of the person are those recognized in the constitutions of the states as those attributes of the person that the state has the duty to protect by reaffirming them when they are in danger of being violated. . . . This is the classic notion of the role of the state as an organ charged with protecting the individual vis-à-vis the actions of other individuals or groups[, however, in] situations in which the state, whose function is to protect the individual, becomes his assailant[,] . . . the rights of the individual acquire an added dimension that puts them above the rights of the state and make the individual a subject under international law. Thus, his individual rights can be protected by the international community, organized and juridically regulated by means of treaties. This is the substance of the legal contract between the individual and the state that is formalized in the concept of human rights. . . .⁵

Although this state-centered system of human rights proved to be successful in institutionalizing state-based mechanisms of accountability (e.g., treaty-based bodies, Special Procedures, and most recently, Universal Periodic Review), due to its failure to strengthen the principles of human rights interdependency and indivisibility it proved to be inefficient in enforcing respect for human rights. For some, the normative foundation of this system (the liberal ideology that advocates a contractually constituted state, with no intervention in the private sphere), combined with the nature of its structure (statist), has led to this system putting more emphasis on rights publicly claimed against the state (e.g., civil and political rights) at the expense of rights privately claimed against actors other than state actors (e.g., rights claimed against political factions and non-state paramilitaries, rights claimed in the family sphere, in the market sphere, and in other privately categorized spheres of state non-intervention) and, hence, violating the principles of interdependency and indivisibility of human rights.⁶

The intrinsic contradiction of the global system of human rights was exposed under globalization,⁷ which promoted privatization of state sectors (e.g., the shift of many fields from public to private domain),⁸ and put certain limits on state power, whilst producing a diverse set of actors that work far outside the state’s control and are noted for their influential role in their societies.⁹ Subsequently, actors other than state actors have extensively appeared on the international scene and have started to threaten world peace and security and to infringe on human rights. For instance, the Stockholm Peace Research Institute documented a total of 24 internal armed conflicts in different parts of the globe in 1997. Meanwhile, at least 14 internal armed conflicts were documented in the period from June 1997 to June 1998, with each conflict claiming on average the lives of around 1,000 people.¹⁰

These figures demonstrate the growing influence of non-state actors on the world’s peace and security and their strong competence to inflict harm on civilian life and to infringe on human rights. Despite this, Philip Alston noted with regret, the global system of human rights remains incapable of addressing human rights challenges associated with the rise of these actors and of formally acknowledging their legal responsibilities.¹¹

Non-state actors under international humanitarian law

This evolving reality has left the global system of human rights with several challenges, the most important of which, some suggest, is the one related to the envisaged legal status of the emerging non-state actors and the subsequent legal obligations that might be extended to them. While this question remains unresolved to date,¹² the increasing impact of these actors on human rights leaves the question a valid one, and leaves open the possibility for further intellectual endeavor seeking to answer it, or at least, to look for some accommodation between this system and these actors.

Toward this end, I propose a modest start, by looking at the status of these actors under international humanitarian law, with a view to inferring the normative basis, or what I call “the normative infrastructure” upon which this status was built, before turning to look at the normative basis/infrastructure of the global system of human rights to find out if there are any similarities between both normative infrastructures. This will constitute the cornerstone of my discussion seeking to highlight the theoretical and intellectual justifications for accepting de facto applicability of international human rights law on non-state actors.

To start with, international humanitarian law—including the law of war, which deals with the conduct of war and seeks to put limits on means and methods of warfare¹³—extends certain legal obligations to non-state actors (including national liberation movements) involved in armed conflicts, as manifested in Common Article 3 of the Geneva Conventions and the two protocols additional to the conventions. Common Article 3 binds all types of non-state actors, regardless of the type of conflict or their legal status (a non-international armed conflict that involves insurgencies/belligerencies, or an international armed conflict that involves national liberation movements).¹⁴

Additional legal obligations, including those laid down by Protocol II of 1977 additional to the Geneva Conventions, are taken into account in situations of a non-international armed conflict in which armed opposition groups enjoy “a responsible command, and a territorial control,”¹⁵ and “fight against the government in power, in an effort to overthrow the existing government, or alternatively to bring about a secession so as to set up a new state. . . .”¹⁶ Should such armed groups fight “against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”¹⁷ then Protocol I of 1977 additional to the Geneva Conventions replaces Protocol II as a legal regime governing the conflict, which is no longer deemed internal, but rather, international.

Unfortunately, however, there is no precise definition of self-determination as “a legal right” either in the UN Charter or in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (or General Assembly Resolution 2625 [XV] of 24 October 1970¹⁸). While both documents proclaim self-determination (Articles 1, 55, and 56 of the UN Charter, and General Assembly Resolution 2625 [XV]) and charge state members with promoting its realization, the declaration refers to self-determination as the right of people to “freely to determine their political status, without external interference, and to pursue their economic, social and cultural development.” In essence, the declaration refers to it as a goal to be attained, without specifying its content and, hence, leaving vague the meaning of this right.

Smith (2007) argues that the vagueness of the right to self-determination, as a collective right, has resulted from the lack of internationally agreed criteria upon which a given people may be categorized as entitled to the right to self-determination.¹⁹ Nevertheless, Smith points out that the discussion related to the criteria would be irrelevant inasmuch as these people fight against a colonial power or occupation. In this case, the only criterion t...