UN Peacekeeping: Can Privatized

Military Corporations Help?

 

By Andrew Harrington

 

This paper discusses the policy flow surrounding United Nations (UN) peacekeeping and humanitarian interventions, highlighting recent militarization, the Responsibility to Protect doctrine, outsourcing to regional forces, and the problems common to these missions.  After outlining the trends, problems, and gaps in peacekeeping capacity (of what), the author evaluates a possible solution; the incorporation of Privatized Military Firms (known as PMC’s) into the United Nation as a guaranteed rapid intervention force. The author distinguishes PMC’s from ad hoc mercenary groups establishing that the Security Council could legally create a new UN organ, namely a PMC rapid intervention force.  Past and present use of PMC’s have demonstrated that such a proposition is not simply fantasy but has precedent and is already a reality to some extent. Furthermore, the author then seeks to answer the question as to whether a PMC should be integrated into the UN.  Various criticisms of the prospect are analyzed in detail; principally that PMC’s seemingly cannot create stability, habitually violate human rights, are subject to no law, liable to break their contract if a mission becomes too challenging, are unregulated and not transparent, the UN does not want a standing army, and finally, the use of Private Military in the UN is morally wrong. 

 

The author concludes that while other options exist that would streamline the peacekeeping process, the use of a PMC in this capacity could achieve the same results, albeit cheaper, faster and with a resultant drop in refugees and fatalities from internal conflict, that it is a prospect that should not be discounted at face value, but considered seriously. 

 

Clashing Concerns:

Multi-Agency Policing, Technology vs. Civil Liberties Protections

 

By Lidvina Rajabalan

 

In the current era of late modernity, the rapid rise of multi-agency policing (MAP) and the use of technologies to facilitate crime-fighting has raised serious concerns about the implications for civil liberties. As a distinct form of policing, MAP is a product of several key political, legal and social factors. The most crucial of these factors are the rise in cross-national crime, bureaucratic autonomy of the police and new criminal legislation. Of especial importance to both multi-agency policing and transnational crime are technological innovations that enhance surveillance practices and enable the exchange of information through databases. Intensified cooperation and greater use of technologies have also produced many challenges. The factors that both hinder and facilitate cooperation are investigated to highlight the complexities of multi-agency policing and how it is different from local or national policing functions.

 

Both the international nature of police cooperation and the use of technologies in crime fighting have raised serious concerns about the implications for civil liberties.  The use of these technologies to collect and collate information and to share this data with policing agencies around the world creates further unease.  These worries are of particular concern in the post-9/11 context because of the significant legal changes that have occurred in most western democracies.   These changes have given policing agencies greater latitude in their use of these technologies and the information they accumulate through them. The international dimension of MAP and data-sharing exacerbates these concerns. It is this tension between crime control and police technologies vs. civil liberties that forms the core issue of my paper.  I explore this tension by examining key Canadian and American rulings and a discursive analysis of Interpol.

 

It is held that since MAP and its extensive reliance on technologies, surveillance practices and information can significantly violate rights, the use of these technologies must be reasoned, discriminate and justifiable.  Judicial and public oversight that is backed by legislative authority is crucial to limiting the negative uses of technology in cross-national policing efforts. 

 

 

Security Certificates And International Human Rights Obligations:  Is Canada Keeping Its Own Promises?

 

By Becca Murtha

         Canada has long maintained that the rights, freedoms and guarantees accorded to individuals through international human rights instruments can and must be reconciled with the special demands of national security. In legislation pertaining to the issuing of security certificates for non-nationals that have a connection to terrorism and pose a threat to Canadian society, drafters have included a provision that ensures courts will construe the measures in a manner consistent with international human rights norms. This proposition has been tested by Canadian courts in recent years, and it has consistently been held that the legislation authorizing security certificates fully complies with Canadian obligations under the ICCPR, and other binding human rights instruments.

 

 

 

Promoting Compliance of Private Security & Military Companies with International Humanitarian Law & Human Rights

 

By Benjamin Perrin

 

Private security and military companies (PSC/PMCs) have become a ubiquitous part of modern armed conflict and post-conflict reconstruction.  Their diverse clients include governments in the developed and developing world alike, non-state belligerents, international corporations, non-governmental organizations, the United Nations, and private individuals.  The implications of this proliferation of PSC/PMCs for international humanitarian law and human rights are only beginning to be appreciated, as potential violations and misconduct by their employees have come to light in Iraq and Afghanistan. 

 

The author critically examines the theoretical risks posed by PSC/PMC activity with respect to violations of international humanitarian law and human rights, together with the incentives that these companies have to comply with these norms.  Empirical evidence is also presented to expound on this theoretical framework.  Taking a multi-disciplinary approach, the author draws on law, international relations theory, criminology, economics and corporate strategy, political economy, as well as psychology and sociology to analyze the competing ‘risk-factors’ and ‘compliance levers’ that interact at each level of PSC/PMC activity to enhance or reduce the likelihood of a violation occurring.  These findings are then applied by the author to assess emergent measures to deal with PSC/PMCs outside of the legal sphere, including a program of the International Committee of the Red Cross and the advent of the International Peace Operations Association.

 

Gender and Genocide – Comparing the ICTR and Gacaca

 

By Carolyn Elliott-Magwood

 

This paper uses the lens of women’s rights to compare the International Criminal Tribunal for Rwanda (ICTR) and the Rwandan domestic “Gacaca” courts.  The author seeks to determine which system has been more successful in meeting the unique needs of female victims of the 1994 Rwandan genocide – taking into consideration both the widespread use of rape as a tool of genocide, and the patriarchal nature of Rwandan society. 

 

Both the procedural format of, and the substantive law resulting from,  the ICTR and Gacaca are analyzed to determine if women are being accommodated as both victims of rape and as underprivileged members of society.  Since its inception in 1997, the ICTR has developed a number of procedural safeguards to protect women, and has also released some important jurisprudence, including the Akayesu case, on the issue of rape as an act of genocide.  The Gacaca courts, on the other hand, have fewer safeguards in place to protect the rights of women.  At the time this paper was written, the Gacaca were in their infancy and had not produced any jurisprudence. 

 

While the ICTR seems more gender-sensitive on paper, research has shown that a number of scandals and mistakes have alienated Rwandan women from the Tribunal.  As a result, key Rwandan women’s organizations have withdrawn their support from the tribunal.  Furthermore, Gacaca, as a localized institution with a wider mandate, is seen by many as the only opportunity most Rwandan women will have to obtain justice.  Due to these considerations, it is advanced that the Gacaca courts build upon the lessons learned, and rectify the mistakes made, by the ICTR, to create a system which will ensure justice and healing for the women of Rwanda.

 

The Draft Declaration of Human Rights

As a Basis for Self Government Claims in Canada

 

By Christina Croteau

 

The application of international law was not traditionally thought to apply to the rights of indigenous peoples.  This has begun to change.  International law is now seen by some to be applicable to aboriginal law not only where it has been incorporated into Canadian law, but in and of itself.  The Draft United Nations Declaration on the Rights of Indigenous Peoples is one example of aboriginal rights set out in international law but not incorporated into domestic legislation.  This convention sets out aboriginal rights that may serve as a basis for aboriginal groups to pursue claims to self government.  However, the established means of pursuing claims within the Canadian system may present better options. 

 

This paper examines the content of the Draft Declaration on the Rights of Indigenous Peoples in terms of the rights it sets out and their implications for the Canadian context.  Next, the process of norm creation in international law is outlined.  Third, the paper describes how such a norm could be used by indigenous people in Canada to pursue self government claims. Finally, this process for making self government claims is evaluated against other domestic means of doing so, to determine which tactics carry the greatest chances of success.  Processes examined include the provincial model of the Nunavut Act, the treaty based mechanism employed in the Nisga'a Treaty, and the side-agreement model envisioned in the Yukon Umbrella Final Agreement.  The author concludes that the Draft Declaration is an important step forward in the struggle for indigenous self government around the world, and a valuable interpretative aid in the self government agreement negotiation process.  While the approach cannot stand alone as a basis for aboriginal land claims in Canada, this does not invalidate its importance in international or aboriginal law.

 

Rape as a War Crime: Is There a Legal Solution?

 

By Peter Tonge

 

In his book Shake Hands with the Devil, Gen. Roméo Dallaire details the horrors of the Rwandan genocide which took place while he was the commander of the United Nations peace keeping force in that country. Some of the most striking passages deal with the mass rape of civilian women and girls during the conflict.  His writings brought the issues of genocide and rape as a weapon of war to the forefront in Canada and around the world. However, the use of rape in war is not new. In the twentieth century, the use of rape in war was documented in both WWI and WWII. The practice continued during the Vietnam War and in civil war between Pakistan and Bangladesh during the 1970’s.Rape as a weapon of war continues today. The rape of women and girls has been a brutal part of recent conflicts in Bosnia-Herzegovina, the Democratic Republic of Congo, Rwanda and Sudan.

 

The brutality took place despite the development and ratification of wide range international human rights instruments designed to address such degrading treatment both during peace time and in times of war. This paper will review some of these instruments and consider the obstacles that women and girls living in failed states  face when seeking justice for the crimes perpetrated against them. Initiatives designed to create access to justice,  such as community courts, reconciliation commissions and models for the reestablishment of justice systems will be evaluated.   Past experience has shown that public community based solutions can serve to reinforce the victimization and marginalization of these women. The use of existing models to quickly reestablish a justice system in a failed state, combined with international support, may provide a more effective solution.

 

“Haiti: A Country in Perpetual Transition”

 

By Suzette Marva Bernard

 

The Responsibility to Distinguish:

The International Criminal Court, peacekeeping and the fundamental distinctions of International Humanitarian Law

By Danna Ingleton 

The Responsibility to Protect Doctrine (R2P): A Critical Assessment of Its Legal Significance

 

By David Aaron

 

The recent endorsement by world leaders of the Responsibility to Protect doctrine (R2P) has been heralded as the most noteworthy achievement to emerge from the 2005 World Summit of the United Nations (UN).  Despite high praise for the doctrine from politicians, legal scholars and the media, the author suggests that the significance of R2P’s contribution to the development of international law is overstated.

 

An Emerging Right to Conscientious Objector Status

 

By Priya Sarin

 

The global community has recognized the right to “freedom of thought, conscience, and religion” for many years now. While in general this right has been interpreted broadly, it has not always been considered to include a right to refuse military service for moral, ethical, philosophical, humanitarian or religious reasons. Historically, refusal to participate in military service has resulted in torture, arrest or detention in almost all regions of the world including Europe, Asia, the Middle East and Latin America. This continues to be the case today in select regions of the world, even in countries where Conscientious Objector (CO) status is now recognized.

 

This paper examines whether the right to conscientious objector status has been established in international human rights law through an analysis of: 1)Treaty law, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights with reference to the Human Rights Committee’s General Comment No 22(48) and regional treaties such as the Charter of Fundamental Rights of the European Union and 2) an evaluation of the status of Customary International Law with reference to state practice and opinio juris. The author concludes that a basic right to conscientious objection has in fact been established, but that greater effort must be made to achieve adherence to current standards and the progressive development of the norm to include partial objections as well.

 

The Responsibility to Protect:

Human Rights Protection in a Changing World

By Andrea Marlowe

International human rights law has contributed to the overall shift in international law from a state-centric international system to a global community in which individuals, not just states, are important actors.  To the extent that the Responsibility to Protect represents a conceptual transition away from the sovereign rights of intervening states toward the moral and legal entitlements of imperiled populations, it reflects a progressive development in modern human rights law.  However, the report of the International Commission on Intervention and State Sovereignty (ICISS) outlining the principle fails to abandon sovereignty-based concerns, permitting intervention motivated not by the moral demands of human rights protection, but by the self-interest of intervening states.

 

The author traces the moral necessity of human rights in modern international law to the natural rights theories of the European Enlightenment.  The author then examines the development of humanitarian intervention and the extent to which recent interventions have circumvented genuine human rights-based justifications.  This leads to a critical analysis of the report of the ICISS and the Responsibility to Protect principle.  The author suggests that in order for the report’s re-conceptualization of humanitarian intervention to be meaningful, its rhetorical demand for a shift in focus to the human rights of individuals must be made a reality.  International efforts to protect human rights must have the moral desert of individuals as their sole objective and motivation.  The Responsibility to Protect requires uncompromised human rights protection for human rights’ sake – an ideal that is yet to be realized in practice

 

Divergent Approaches, Convergent Needs: South Africa’s

Truth and Reconciliation Commission and Rwanda’s Gacaca Tribunals

 

By Dayna Gulka

 

It is imperative that institutions implementing programmes of transitional justice adopt a gender sensitive approach that would recognize the unique sexual, political, economic, and domestic situations of women.  The Rwandan Gacaca Tribunals have failed to assess issues surrounding rape, sexual torture, and forced pregnancy.  As the weaknesses of these tribunals have been revealed by Non-Governmental Organizations reports, it is thus useful to turn to approaches taken by South Africa’s Truth and Reconciliation Commission (TRC) for successful systems that may be imported and effectively implemented in Rwanda.

 

The paper first outlines the differences between the experiences that men and women face during war by examining rape, sexual torture, and forced pregnancy.  An analysis of the approaches taken by South Africa and Rwanda is then undertaken, describing the conflicts in the two countries and their approaches to transitional justice and gender.  Recommendations for improving Rwanda’s transitional justice response to gender issues include witness protection measures, women’s hearings, confidential and anonymous testimony, and alternative forms of testimony.  Proposals are also made in the areas of the provision of medical care, the country’s response to forced marriages, and the recognition of the value of a transitional institution as a therapeutic tool.

 

The most important foundation of both Rwanda’s Gacaca Tribunals and South Africa’s TRC is the aspect they share: contextuality.  However, the Rwandan government has to date been less willing to take suggested improvements into consideration.  More important than any procedural or administrative amelioration that Rwanda could borrow from other case studies is the essential ability to allow the Gacaca Tribunals to adapt and grow to meet the needs of the Rwandan people as they come to light.

 

Transitional Justice in Kenya

 

By Sandy Donaldson

 

The International Centre for Transitional Justice has championed an integrated methodology for states struggling with serious human rights violations. Only through a harmonious application of four mechanisms: criminal prosecutions, reparations, truth commissions and institutional reforms can states hope to fulfil their international legal obligations as well as maintaining stability and realizing the hopes and expectations of their populations.

 

The author applies this methodology the particular situation in Kenya in the wake of the Daniel arap Moi dictatorship. Following  the multi-party elections in 2002 that ousted the Moi regime, Kenyans were faced with a legacy of displaced persons, ethnically motivated mass murder, systemic torture by police, and widespread political corruption. The author’s approach suggests a two-part approach to truth commission, incorporating the use of public inquiries, a minimal level of criminal prosecutions and reparations but significant institutional reforms (including constitutional reforms). The viability of this application of the transitional justice methodology is examined in light of other significant challenges faced by Kenya’s new regime: such as AIDS, persisting ethnic tensions, corruption, poverty and the ever-present threat of a return to autocracy.  The author examines the successes and failures of other nations’ attempts at transition and stresses the importance of public participation, and the setting  realistic goals in order for the suggested process to be ultimately successful.

 

Assessing Blanket and Partial Amnesty Legislation in Conjunction with the    Inter-American System of Human Rights

 

By Mauricio Ernesto Granillo

 

Granting full immunity from prosecution of human rights and humanitarian law violations for combatants has been the norm of governments undergoing demobilization strategies.  The traditional argument has articulated state’s necessity to safeguard security and stability to the nascent post conflict society.  However, with the ascendance of international scrutiny over human rights violations in internal conflicts governments have been under pressure to establish accountability for the crimes committed during its conflict. As a result, partial immunity legislations that selectively accounts for human rights violations may become the norm of nations’ demobilizations strategies.  In this essay, the author typifies El Salvador’s 1993 General Amnesty Law as a blanket amnesty and Colombia’s 2005 Peace and Justice Law as partial immunity legislation.  He focuses on these provisions by inferring the letter of the law and through a consequential perspective the adequacy and effectiveness of the laws in conjunction with international human rights law.  The analysis is achieved through a victim centered approach by separately looking at the rights to truth, justice and reparation.

 

In short he asks; which case presents a bigger challenge to the adequate incorporation of human rights law at the termination of a conflict? He concludes that a blanket amnesty as an explicit doctrine of impunity is easier to identify as incompatible with international legal standards.  Partial amnesty measures such as the case of Colombia must be evaluated not by what they say but by what they fail to establish.  Human rights language in a provision does not necessarily indicate these norms will be applied in practice; and notwithstanding a greater promise, they may have the effect of accomplishing less for national reconciliation.