Posted in International Law

Chemical Attacks on Syria: a blot on Principles of International Law

‘To really change the world we have to change the way people see the world.’

The United Nations, as well as the International Committee of Red Cross, has sincerely initiated efforts to achieve international peace and global security. And success lies in the fact that today there are no conventional wars which devastated masses of lives.

However, the Gulf Crisis, War between Iran and Iraq, Palestine- Israel issue as well as Syrian Gulf War are incidences which throw light on circumstances where humanitarian grounds are actually criticized and international humanitarian law has failed to establish peace. Syrian Civil War is one amongst those armed conflicts which have actually ruined the peace of civilians. Moreover, lethal chemical weapon attacks are a blot, portraying the failure of international law.

Critical Analysis of Chemical Attacks in Syria: A Grave Threat to Human Rights

The recent chemical attacks by the USA on Bassad’s territory under the shelter of humanitarian intervention have actually brought severe criticisms in the international community. This is because the stand taken by the Trump government in support with the UK, France was without the permission of the UNSC and hence these attacks were termed as illegal. In the further pages, there will be a discussion on various international norms which are actually infringed by such stands by countries.

  • Jus ad bellum and jus in bello

The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law, therefore, addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just. Till 2015, the Syrian crisis were not termed as a humanitarian crisis and there was no step taken to rehabilitate or fight for justice of victims.

Moreover, the strikes did not fall within the exceptions to the overall prohibition on the use of force in Article 2 (4) of the UN Charter.  This is because Syria did not consent to the use of force on its territory; the strikes were not authorized by the UN Security Council; Syria’s alleged repeated use of chemical weapons on its own population did not constitute an armed attack that would trigger a right to self-defence for any of the three countries who carried out the strikes. Furthermore, to the extent the strikes should be perceived as a countermeasure in response to Syria’s unlawful use of prohibited weapons, and thus its violation of international law and it must be noted that armed countermeasures are prohibited under the jus ad bellum.

Thus, chemical weapons conflict with the International Humanitarian Law (IHL) principle of distinction that requires parties to a conflict not to use weapons that cannot distinguish between military and civilian objectives.  In the seminal Tadíc case, the International Criminal Tribunal for the former Yugoslavia (ICTY) used chemical weapons as an example of a weapon that is inherently inhumane[1].

  • Principle of Distinction

The principle of distinction specifies that combatants must distinguish themselves from civilians. As a result, combatants must neither deliberately target nor indiscriminately or disproportionally harm civilians. The definition of who falls within the categories of combatants or civilians is therefore of crucial importance in IHL. The concept of “civilian” is “defined in contra-distinction to combatants: civilians are those who are not combatants”. In essence, whoever does not fulfil the criteria of a combatant is considered as a civilian. However, the recent attack by the USA violates the principle of distinction because chemical weapon attack did not just devasted the peace of the Syrian government but also took the lives of many innocent civilians.

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A right to use force to deter the use of chemical weapons would only emerge in customary international law if there is a supportive general practice among states that is accepted as legally relevant (opinio juris). However, not all countries support this hence it is very difficult, at least now, to convert this practice as customary international law. Hence, the chemical attacks by the three governments are unlawful.

ICRC and UN: Hegemony of Big Powers

Although the main aim is peace, still the two organizations have at various times have been in conflict. This is because humanitarian laws and norms have at various times manipulated by UNSC. Although this report has never come out, their conflict is visible in their working. This is because UN is sometimes hegemony of big powers. The greatest example to the argument is US intervention in Iraq and even in Syrian civil war also. So, through these instances, the existence of relevance of laws comes to question – because justice needs to be equal for all.

Missile Strikes: Humanitarian Measures or Brutal Attack on Human Rights

The United Nations is established for ensuring peace and stability at the international level. However, the veto powers to the P5 nations is not always used to fulfil the objective of UN. This is evident from the recent Syrian issue. This is because whenever UNSC tries to take stand against Syrian government it is vetoed by Russia.  Recently UNSC 2554 RESOLUTION which urges all members to ceasefire has been revoked by Russia and Turkey and hence the problem continues.

This intervention was illegitimate because it was devoid of permission of UNSC. Using force for humanitarian purposes in the absence of UN authorization will be compatible with international law if ‘there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief’; ‘it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved’; and ‘the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim[2]. But the Missile strike aimed at curbing the atrocities in Syria didn’t do much good instead it was a brutal attack on human rights.

Conclusion and Suggestions

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It has become the obligation of the states to revive the international humanitarian law. Through diplomatic, economic, and political activities, states can push the parties to the conflict to comply with international humanitarian law and end the targeting of innocent Syrian civilians. Nationwide condemn to states involved in violence and economic blockades can pave a way to deter unlawful force internationally. The time has come when Syrian insurgencies and violence be termed crime against humanity and invoke universal jurisdiction in the matter because justice delayed is justice denied.

[1]  Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1 (2 October 1995), paras. 120-124.).

[2] International Humanitarian Law Sri Lanka Journal of International Law, Vol. 15, pp. 3-6.


ABOUT THE AUTHOR

Divyanshi Shrivastava

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Divyanshi Shrivastava is a second-year student of MNLU Nagpur. She has attended various national and international conferences on law and society. Recently she has been adjudged as the best speaker in a reputed conference. She loves reading and writing. She considers law as a tool to empowerment.

 

Posted in Human Rights

The universality of Human Rights and Hurdles thereto

Human rights are defined as entitlements that one acquires. Moreover, there is no definite definition as to what human rights are; as they can be described in various ways. Their definition can either be derived from various documents such as International treaties, covenants or conventions; and one of its principles is that human rights are universal.

The term universality of human rights connotes that these rights apply to all regardless of sex, age, colour, religion, ethnic group etc. They are recognised by international law; meaning they apply both to a global and national system as it stems in the Universal Declaration of Human Rights[1]. However, the universalism of human rights has proven to be a complex and controversial issue as it has been difficult to implement in practice due to various reasons.

Furthermore, one of these reasons will be that of culture or cultural practices which have acted as hurdles in the implementation on the set of universal human rights. These practices are viewed as norms within a certain cultural group which threaten the lives of individuals and the promotion of human rights, thus making it difficult to protect individuals from certain cultural beliefs or norms that bring forth harm into their lives. A typical example will be that of female circumcision which has been in practice for over many years in many African countries.This practice threatens the lives of women and girls as it is in breach of article 6 of the International Covenant on Civil and Political Rights which describes that every individual is entitled to the right of life.[2] It is also in breach of article 12 of the International Covenant on Economic, Social and Cultural rights which stipulates that every individual has the right to health.[3] According to a case study that was conducted in Burkina Faso in 2004, about 90 percent of girls have gone through such a horrific procedure[4] and this on its own challenges the promotion, protection and the universal concept of human rights.

Despite the efforts that have been made to raise awareness on the protection of human rights; cultural relativism has seemed to take its own toil. The concept, ‘Universality’ has rather been described as a western idea that promotes western practices and values but further challenging cultural values and norms.  This, on the other hand, has relatively caused an inherent conflict as it is difficult to balance between cultural relativism and the universalism of human rights in order to ensure that all rights are protected.

One other practice which is a major concern will be that of honour killings. This is basically where an individual kills a massive number of people all in the name of their deity.  This religious norm causes a corrosive effect both on the individual and the society. However, many seem not to realise that encouraging such norms is also challenging the humanity of other people. This may explain why the implementation of universalism has almost seemed impossible.

There are many other different practices which challenge the concept of universality, however, in conclusion, the start of challenging these is through education; that is making individuals realise the importance of respecting one’s individual rights. Just as the late South African President, Nelson Mandela once said ‘Education is the most powerful weapon that can be used to change the world.

[1] Human rights and their Universality <https://www.lawteacher.net/example-essays/human-rights/universality.php

[2] Summary of ICCPR and ICESCR

[3] Ibid

[4] Religious practices in female Genital cutting: A case study in Burkina Faso <Https://www.ncbi.nlm.nih.gov/pmc/articles>


ABOUT THE AUTHOR

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LESEGO GAETWESEPE

Lesego Gaetwesepe is a law graduate and she is intrinsically passionate about human rights, community building and empowering young people. She is a participant at the YALI Regional Leadership Center in Southern Africa and was also part of the #ageofconsent project. She was also part of a project facilitated by NACA (NATIONAL AIDS COORDINATING AGENCY). Ms Lesego is currently a volunteer at Gogontlejang Phaladi Pillar of Hope Project and also represents the organisation at the UNESCO Pan African Youth Network for building a Culture of Peace, and she is also taking up training as an ASFL (African Students for Liberty) Local Coordinator.

 

Posted in Fundamental Rights

Homosexuals Too Have Rights – They are not demanding something ADDITIONAL!

We often say that there is gender inequality amongst men and women and that’s true. But what about the third gender that has been given a due recognition by Supreme Court of India[1]. This so called third gender is not even accepted by majority of the people in the society, talking about its dignity, rights and so called ‘equality’ is like a fairytale!

Even after getting a legal status conferred by the Apex Court they haven’t been given their due right in many states. Although we come to read and know about some of the transgender like Zara Sheikh[2], Rudrani Chettri[3], Kalki Subramanyam[4], Madhu Kinnar[5], Manabi Bandyopadhyay[6] , Padmini Prakash[7] and 23 other transgender who have been given jobs at Kochi metro who have achieved something but what about rest of such population.

In the case of Suresh Kumar Koushal v. Naz Foundation[8] the Hon’ble Supreme Court reversed the High Court’s judgment that held Section 377 of Indian Penal Code unconstitutional. In this case the Hon’ble Supreme Court quoted the case of R.M.D. Chamarbaugwalla v. The Union of India (UOI)[9] and asserted that the instead of declaring a legislative provision illegal, doctrine of Severability must be applied and valid portion must be separated from the invalid portion. So from the Supreme Court’s judgment on the rights of homosexuals and constitutionality of Section 377 it can be construed that there is a reasonable classification made on intelligible differentia that homosexuals are an exception to it (Section 377 IPC).

Despite having been given rights by Supreme Court, they aren’t getting what they too deserve. Till date it is very normal and regular to see these people begging at traffic lights, at religious places like temples, mosques, etc. Not only this they’ve to face ill-treatment by police authorities and public. This Eunush culture is present in our culture since the ancient times of Lord Rama. And, it was in that era that homosexuals were considered as the agents of GOD and gave blessing to people on pious occasions. But at present times they have to face hatred, abusive treatment, cruelty and sexual harassment[10]. Till November, 2014 thirty seven attacks have were reported against eunuchs in Hyderabad since March. Shockingly there were around 10 deaths, three gang rapes and five acid attacks[11].

The Hon’ble Court has left it on the competent legislature to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General[12].

But this does not end here only!

Despite the verdicts of Supreme Court this community is being harassed, blackmailed and tortured because of their genetic disorder and make them feel ashamed and embarrassed about their identities. This clearly implies that States are not able to comply with the orders of Supreme Court by not being able to providing its citizens their precious fundamental rights.

[1] National legal services authority v. UOI [WRIT PETITIONS (CIVIL) NO.400 OF 2012 & 604 OF 2013]

[2] India’s first transgender HR Professional in a MNC

[3] Delhi-based transgender activist and head of Mitr Trust, opened a modelling agency to help transgender models get work and recognition

[4] activist and author, established Sahodari Foundation that works for the empowerment of transgender persons in India

[5]  she fought mayoral elections in Raigarh, Chhattisgarh as an independent candidate and won

[6]  India’s first transgender principal a year ago

[7]  India’s first transgender TV anchor with a prime time show on a South Indian TV channel

[8] CIVIL APPEAL NO.10972 OF 2013

[9] AIR 1957 SC 628

[10] Jayalakshmi v. State, (2007) 4 MLJ 849

[11] http://www.deccanchronicle.com/141121/nation-current-affairs/article/eunuchs-face-assaults-rapes

[12] Suresh Kumar Koushal Case, supra


ABOUT THE AUTHOR

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TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.

 

Posted in Human Rights, Social Issues

The Need to Recognise and Confer Rights to LGBT Community: India

This article is written by Pooja Ogale. Pooja is currently pursuing her LLM (Specialization in Constitutional and Administrative Law) from GNLU, Gujarat.

 

 

We are in the era where people are more emphasising over the aspect of individual rights and human rights. We are able to witness a shift from the orthodox hypocrite principles and perception to more rationale human rights perception. In a way, we can say that we are moving towards the idea of liberalism. People around the world are raising concerns with respect to the human rights of vulnerable classes of people existing in the society. Apart from women, children, and refugees, there is one more community which has been vulnerable in the society whose human rights are abridged is the LGBT community.

LGBT community basically includes people having a different sexual orientation. The community includes the people who are lesbians, gay, bisexual and transgender. The people belonging to this community or class are often stigmatised by the society, they face a lot of legal and social difficulties.

Internationally various countries have recognised the rights of the LGBT community and have provided a legal status to people belonging to such community and also have permitted gay marriages. It is only recently that the people are accepting the people of different sexual orientation and identifying the transgender but few years ago such people were looked down upon and were considered to be not socially acceptable. But, due to the increase of awareness, education and emphasis on the human rights people are now moving towards the idea of tolerance, social acceptance, equality and liberalism.  Universal Declaration of Human Rights (UDHR) does not specifically mention about sexual orientation and gender identity but it confers some basic human rights to every person on the planet from a virtue of being a human. Therefore it is important that the basic human rights of every person should be protected irrespective of him/her belonging to any class or community.

In India, certain basic rights are conferred upon the citizens by fundamental rights enshrined in the Constitution of India. Recently, in 2014[1], the Supreme Court in the case of National Legal Services Authority v. Union of India[2]have recognised transgender people as the third gender and affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, in addition to this the Supreme Court granted them reservations in educational institutions and jobs as they are socially and economically backward classes. This step taken by the courts can be considered to be a major step towards gender equality and gender identity in India.

Same-sex intercourse or homosexual intercourse is a criminal offence according to Section 377 of the Indian Penal Code 1860. In 2009, the High Court of Delhi, in Naz Foundation v. Govt. of NCT of Delhi[3] made an observation that Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct are in direct violation of fundamental rights provided by the Indian Constitution. The court did not declare the Section 377 as unconstitutional as a whole, but it was passed over to the Parliament to amend the law with respect them. This judgement was unwelcomed by various people and there was a lot of resistance from many over this issue of acceptance of such activities by society at large. In 2013, the Supreme Court set aside the verdict given by the Delhi High Court on decriminalisation of Section 377 of IPC over consensual homosexual activity.[4] The Supreme Court emphasised over the need to legislate and debate over the matter by the parliament.

Same-sex marriages or Gay marriages are illegal in India. The couples are not legally recognised. Such a practice is highly stigmatised in the Indian society and is considered to be abnormal. Often people consider homosexuality to be a disease or health ailment rather than a sexual orientation. People are not able to accept the LGBT community as a part of their society.

What is needed is the social inclusion of LGBT community as at the end they are human beings, even if they have a different sexual orientation or different gender they are human beings and they have every right to have a normal and a happy life and to have a normal discourse in life. Many countries across the globe such as USA, UK, France, New Zealand, South Africa, Argentina, Norway etc. are recognising the rights of LGBT community. Therefore it is important that India also recognises the rights of LGBT community in light of the basic human rights.

Section 377 of the Indian Penal Code is a very old provision and is stagnant, it is important that the law should be changed as per the needs of the people in order to attain welfare and harmony amongst the people. Thus, decriminalisation of Section 377 of the IPC is must. LGBT community should be recognised by the people in India and by the State and should confer rights upon them which are basic human rights, differentiation on the basis of gender identification and sexual orientation should be curbed.

[1]India court recognises transgender people as third gender,  BBC News, 15 April 2014, India.

<Accesible at: http://www.bbc.com/news/world-asia-india-27031180&gt; ,  Last accessed: 24th Sept 2016

[2]Writ Petition (Civil) No. 400/2012

[3] Writ Petition (Civil) No. 7455/2001

[4]Suresh Kumar Koushal&Another v Naz Foundation & Others (Civil Appeal no. 10972 of  2013)