22 Apr The Underexplored Obligation under International Human Rights Law to Avert the Risks of War
[Dr Ka Lok Yip is an Assistant Professor at Hamad Bin Khalifa University.]
Events vs Tendencies: an Interdisciplinary Divide?
In view of the gravity of the Russian invasion of Ukraine, it is understandable that most legal commentators focus on the legal norms regulating the event directly, jus contra bellum, rather than other legal norms regulating the tendencies that make up the more distant causes of the event. This approach tends, in the words of Judge Kooijman in the DRC v Uganda, to isolate from a ‘tangled web’ of causes of war ‘one element’ over which a clear judgment can be made: Russia’s aggression. The result is a fairly black-and-white picture of Russia’s flagrant breach of international law and Putin’s crime, where the only remaining issue is the technical one of how to hold them accountable e.g. through sanctions, inter-state proceedings or criminal justice mechanisms.
In our neighbouring discipline of international relations, a parallel line of inquiry into the political responsibility for the war has been pursued, with a starkly different outcome. Commentators ranging from realists to leftists to others have blamed NATO and Ukraine for the security concerns they create by the potential expansion of NATO into Ukraine. Yet a rigorous analysis of Charter law suggests that threat or violent obstruction of Ukraine’s attempted entry into NATO violates Ukraine’s sovereignty and self-determination. As calls for NATO intervention to establish a no-fly zone over Ukraine grow, one can foresee a similar divide: legal analysis would confirm states’ right of collective self-defence in setting up a no-fly zone to deter the aggressor’s attacks, while a range of international relations commentators would deplore the act.
I argue in this post that this apparent interdisciplinary divide could be narrowed by giving more attention to background legal norms that regulate tendencies rather than events, in particular, the norm under international human rights law for states to avert the risks of war and strengthen international peace and security. While the norm has not been tested before tribunals in practice, leaving its precise scope uncharted and its institutionalised enforcement uncertain, like most other international legal norms, its impact is most likely seen not in adjudication over its alleged violation but in its consideration by states in their actual conduct. This post seeks to illuminate its actual content in the context of the war on Ukraine to explore how it could have changed, and given the ongoing peace negotiation, can still change the course of the war.
International Human Rights Law in War on its Own Feet
Our contemporary understanding of international human rights law has been significantly informed by the transnational network of human rights NGOs whose advocacy strategies focus them on ‘problems whose causes can be assigned to the deliberate (intentional) actions of identifiable individuals’ with a ‘sufficiently short and clear’ causal chain rather than ‘problems whose causes are irredeemably structural’. In war, this easily skews the interpretation of international human rights law, often framed in large and generic terms, towards other bodies of international law that are more elaborate in regulating specific events. One can see this in human rights organisations’ primer on international human rights law applicable in the war on Ukraine which are heavily based on law of armed conflicts (events that violate the law of armed conflicts are deemed violations of international human rights law). This is in line with the ICJ’s Nuclear Weapons Advisory Opinion in 1996 that the content of the right to life in armed conflict should be determined by reference to the law of armed conflicts. Occasionally, one can see commentary that discusses international human rights law also by reference to jus contra bellum (events violating jus contra bellum, i.e. the aggressive use of force, are also deemed violations of international human rights law). This is in line with the Human Rights Committee’s General Comment no. 36 on the right to life issued in 2018 that ‘[s]tates parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the [ICCPR]’. While the latter might seem like an expansion of the regulatory scope of international human rights law in war, one should not lose sight of an even broader norm stated in General Comment no. 36, which goes beyond the compliance with both the law of armed conflicts and jus contra bellum and was inherited from the much earlier General Comment no. 6 on the right to life issued in 1982:
‘Wars and other acts of mass violence continue to be a scourge of humanity resulting in the loss of lives of many thousands of lives every year. Efforts to avert the risks of war, and any other armed conflict, and to strengthen international peace and security, are among the most important safeguards for the right to life.’
Taking this norm seriously would suggest that the regulatory scope of international human rights law in war has been very broad to begin with, and may provide guidance on state conduct that is otherwise considered unregulated. In the context of Ukraine, to the extent that Ukraine’s attempt to join NATO and its handling of domestic human rights issues have an impact on the risks of war and international peace and security, this norm under international human rights law is relevant to assessing Ukraine’s conduct. This is notwithstanding the fact that even if Ukraine were considered to have flouted these norms, the breach would not have justified Russia’s invasion under jus contra bellum. Neglecting this norm creates a structural bias within international law that limits accountability to the relative immediate causes of war (regulated by jus contra bellum) at the expense of deeper causes of war (regulated by other norms such as international human rights law), for which responsibility may to some extent be shared.
Content of the Obligation to Avert the Risks of War and Strengthen International Peace and Security
While Ukraine and NATO states have sovereign rights to form military alliance (and conduct collective self-defence), these rights are not unlimited but are subject to other constraints that may be imposed by international law. Although the ‘obligation to avert the risk of war and to strengthen international peace and security’, without further specification, is hard to pin down in concrete terms, there are clear historical precedents of state conduct that has successfully averted the risks of war and strengthened international peace and security in similar situations and may illuminate the content of this obligation. In the Cuban missile crisis in 1962, with the failed Bay of Pigs invasion by the US in the background, the Soviet Union installed nuclear missiles in Cuba, which was characterised by the US as ‘an explicit threat to the peace and security of all the Americas’ and prompted the US to impose a naval blockade/ ‘defensive quarantine’ around Cuba. Yet it is instructive to examine the restraints the parties imposed on themselves in the crisis to avert the risks of war or its escalation. Despite adopting the ‘posture … to accuse the Soviets of being the aggressors’, the US did not opt for an invasion because of the noted risk of escalation into general war and the potential of many deaths. The military standoff was eventually resolved by the Soviet Union offering to remove its missiles in Cuba in exchange for the US promising not to invade Cuba and removing US missiles in Turkey. Although these restraints were not made pursuant to the terms of the ICCPR, which had not yet been signed then, they serve as reference points for the efforts required to ‘avert the risks of war and to strengthen international peace and security’, a formulation adopted during the Cold War era. The case thus has clear precedential value for the peace negotiation on Ukraine conducted as ‘measures to settle international disputes by peaceful means’ to fulfil states’ positive obligation to ensure the right to life.
The obligation to avert the risk of war involving separatism cannot be completed without reference to the relevant state’s domestic human rights situation because of the clear link, as recognised by the Universal Declaration of Human Rights, between internal rebellion and domestic human rights violations. Although the criticisms directed against the domestic human rights record of Ukraine, including linguistic rights policy, lack of protection against threats posed by far-right groups and lack of progress in investigating alleged abuses in the civil war in Eastern Ukraine, in no way justifies the Russian invasion, they need to be confronted as part of the efforts to avert the risk of war and strengthen international peace and security. The very fact that they are being used as a pretext for Russia’s invasion attests to the verity of the statement in the Vienna Declaration and Programme of Actions that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’. Addressing these criticisms will not only reveal the hyperbolic nature of Russia’s claim of Ukraine’s ‘genocide’ against ethnic Russians in Ukraine but also help Ukraine defuse genuine triggers for internal grievances that undermine peace and security.
Where Idealism Meets Realpolitik
Although the obligation to avert the risks of war and strengthen international peace and security under international human rights law is formulated in highly idealistic, if not utopian, terms, its concretisation in the diplomatic and internal measures speaks directly to the material interests of Russia and Ukraine in reality. Indeed, it is the fluidity of the norm that allows highly practical, context-sensitive considerations to be taken into account in a required political compromise. While this kind of fluid legal norms may not be able to dictate specific diplomatic and internal measures to be taken, they provide normative resources for guiding parties towards expectations that can facilitate a negotiated peace settlement. Exclusively focusing on jus contra bellum to regulate ‘events’ of use of force, with its well-known limits on enforcement and normativity, while neglecting the potential of international human rights law to regulate ‘tendencies’ that contributes to the risks of war, does a disservice to the normative power of international law in international relations. It also reinforces the bias of international law towards the immediate causes of war, against other, usually more structural causes. It is immensely tragic to have to ask those under fire to consider these bloodless, ‘structural’ causes of war, but it is perhaps with the foresight of the depth of such tragedy that the obligation to avert the risks of war was formulated in the first place.