Alternatives International

Is International Humanitarian Law a Rear-Guard Action?

Sara E. Levac — 2012-08-01T16:54:50Z

The situation in Syria. The Kony 2012 campaign. The alleged war crimes in Mali. The trial of Ratko Mladic adjourned in the International Criminal Tribunal for the former Yugoslavia (ICTY) due to procedural irregularities. These events have one thing in common: they all involve violations of international humanitarian law (IHL), a legal framework applicable to situations of armed conflict, whether national or international.

From these listed examples, we observe that IHL suffers from much transgression. Civilians endure the consequences of war, they are displaced, at times directly targeted; children are used as soldiers; detainees are sometimes denied adequate detention conditions. Yet, the rules that aim to protect civilians or ensure a human treatment to prisoners of wars are codified within the framework of IHL. This is not where the problem lies.

Numerous endeavours have been made to limit the repercussions of war, a phenomenon unfortunately still present in our current political landscape. Efforts in this sense have indeed been considerable. In doing so, however, the international community has, over the last two decades, put more emphasis on the punitive approach than on the preventive approach.

On this matter, the Rwandan experience is revealing. In 1994, the international community distanced itself from the raging conflict. As soon as the situation stabilized, the United Nations' Security Council set up the International Criminal Tribunal for Rwanda (ICTR) through its resolution 955. The Tribunal was established “for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law”.

Over the years, many have considered the ICTR to be an obstacle to any real reconciliation of the Rwandan genocide. After all, this international justice was imposed on the country and has little links to the Rwandan reality or to the local communities.
Indeed, wouldn't it be preferable to engage in diplomacy and dialogue with the communities dealing with post-conflict situations instead of resorting to tribunals once a war is over and IHL has already been infringed? Tribunals are not a cure-all solution. In the short term, they do not limit the death toll. On the contrary: many consider that the arrest warrant issued against Sudanese president Omar al-Bashir by the International Criminal Court (ICC) worsened the situation and resulted in increased repression of the population.

Another hurdle arises from the limited power of the international criminal tribunals. For example, a state must have ratified the Rome Statute in order for the ICC to have jurisdiction over its citizens. The United States did sign the treaty in 1998, but they never ratified it. Consequently, US soldiers cannot be judged by an international tribunal in the event of IHL violations. Furthermore, any state can use the US strategy of circumventing the jurisdiction of an international criminal court and avoid prosecution by signing no-extradition agreements with countries where their soldiers are sent.

It is also important to remember that the ICC has only a complementary jurisdiction. This means that it can hear criminal cases only if the country refuses or doesn't have the means to effectively prosecute the defendants. However, it goes without saying that it can hardly be claimed that a state is unable or unwilling to prosecute its soldiers without causing a diplomatic incident.

Considering these obstacles, isn't it problematic for international humanitarian law to focus on the use of the tribunals? Michel Deyra, Professor at the Auvergne University and co-founder of the Jean-Pictet Competition in international humanitarian law agrees. He explains: “We put the emphasis on the ICC and the international criminal tribunals whilst convinced that sanctions are sufficient, yet these sanctions are proof of violations. Nothing compares to prevention and the promotion of IHL since these violations are often attributed to a lack of knowledge of this legal framework.”

For now, even if the promotion of IHL and related awareness campaigns may be faulty within armed forces, rebel groups or private security companies some, like the International Committee for the Red Cross, offer training allowing those who bear arms to be aware of their rights and responsibilities.

It was important to put an end to the era of impunity as the ex-Prosecutor of the ICC, Luis Moreno Ocampo pointed out during the Court's first session. However, there is room for improvement of the current legal framework. Notwithstanding the political considerations that are often an impediment to reforms, the situation on the field requires the establishment of a new set of rules. For example, the international community seemed excessively timid to criminalize the use of weapons inflicting superfluous injury or unnecessary suffering. The result was that the current list enclosed in the Rome Statute only includes the weapons that have been customarily prohibited.

It might not be mistaken to say, as some often repeat, that international humanitarian law is always fighting yesterday's battle.

Bill 78: When the Exception Becomes a Rule of Law

Arij Riahi, Sara E. Levac — 2012-08-01T16:54:36Z

The special law adopted under gag order by the National Assembly on May 18, 2012, has entailed its share of challenges. Since then, the debate has raged and opinions have become polarized. Some criticize the law as a bludgeon which imposes limits on the freedom of expression and the freedom of association. Others, more resigned, doubt the government's good faith in resolving the impasse. Amid the tempest, we should not lose sight of certain aspects of the law that raise questions about the rule of law, regardless of one another's position on the proposed tuition fee increases.

Facilitating legal proceedings

Section 25 of the law alters the rules of the game with respect to class actions, the special procedure that allows an individual to bring legal proceedings on behalf of a group of persons.

Under the Code of Civil Procedure, a person who intends to exercise this remedy first must request authorization from the court. Several criteria have to be satisfied. Notably, all class members must be in a situation that raises common questions of law, and a class action must be the most appropriate means of obtaining redress.

Bill 78 clears away these criteria so as to retain only one of them. The court receiving a request for authorization of a class action may content itself with ascertaining that the representative of the class members is in a position to adequately discharge his or her duties.

Furthermore, the change does not apply to all citizens, but rather is aimed at two groups of persons. First, it applies to teachers who stop teaching classes, who slow down their instructional activities, or who otherwise seek to "deny students their right to receive instruction."

The change is also aimed at any person who seeks to "impede the resumption or maintenance" of classes or to "deny a person access to a place" where classes are taught. A priori, the law appears aimed only at individuals. However, section 22 stipulates that student associations are liable for the damage caused by their members in contravention of the law. Added to that is the fact that, in the event of a class action, there is a strong likelihood that an association, and not a single student, will be sued.

The result of these changes is a relaxation of the requirements in relation to class actions against teachers and student associations. It is therefore difficult to see in this initiative anything other than a desire to judicialize the crisis or, at the very least, to facilitate recourse against the red squares.

Choice in the application of the law

The special law permits the government, at its leisure, to decide when and in what manner to apply the law. To that end, section 9 allows for "specifying certain legislative and regulatory provisions as not applicable" to ensure the continuity of instructional services. In other words, the government is authorized to interfere in the management of educational institutions and to issue its own directives.

The government is further authorized to override its own special law as it sees fit. It arrogates to itself the right of "prescribing any other necessary modification to this Act."

The myth of the right to education

Since its adoption, the government has continued to portray its special law as a protection of the right to education, in the sense that it guarantees that all students wishing to return to class may do so. However, this construction of the right to education is grossly erroneous.

Sections 13 and 14, respectively, aim to prevent any cessation of classes and to prohibit any picketing in front of institutions of postsecondary instruction. Thus, the right to education defended by the government is presented as a right of physical access to the place where classes are taught. But it is nothing of the sort.

The concept of the right to education is a right of an "economic, social and cultural" type. It is addressed in article 40 of the Charter of Human Rights and Freedoms. This provides that: "Every person has a right, to the extent and according to the standards provided for by law, to free public education." Under this provision, education must therefore be made generally available, and this, by the introduction of free education. In Quebec, this article is incarnated in free primary and secondary education.

The right to education is also enshrined in article 13 of the International Covenant on Economic, Social and Cultural Rights. Besides the introduction of free primary and secondary education, this provides that: "Higher education shall be made equally accessible to all […] in particular by the progressive introduction of free education."

Fees as disincentives

With regard to the progressive introduction of free education, the United Nations body charged with monitoring implementation of the international covenant has declared the expression to mean that states must "take concrete steps towards achieving free secondary and higher education."

Even more interesting, the same committee has stated the following with respect to the right to education: "Fees imposed by the government […] constitute disincentives to the enjoyment of the right and may jeopardize its realization. They are also often highly regressive in effect."

It goes without saying that this reading of the right to education is a far cry from simple physical access to an institution of learning and is aimed instead at guaranteeing that a student's socio-economic background does not undermine his or her ability to gain access to education. The Liberal government is thus trying to present itself as the defender of a right which, however, it itself is denying through its announced tuition hike of $1,778 spread over seven years.

In this context, the special law does not appear to be a measure that genuinely protects the right to education, but instead as one that cuts short mobilizations. By using this law to justify exceptional measures, the government has reshuffled the deck.
It is presenting a distorted version of it in order to better serve its political interests. Not only is the special law far afield from the real substance of the right to education, but it is being used to restrain those whose claims are based on the true essence of this collective right.

This text was translated by Paul Germanotta