İNSAN HAKLARI - Deneme Sınavı - 3

D) I, II and IV

B) Human dignity

E) The Universal Declaration of Human Rights

E) human nature

C) Katleb

Genocide is defined under Article II of the Genocide Convention as follows: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. Killing members of the group;  b. Causing serious bodily or mental harm to members of the group; c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;  d. Imposing measures intended to prevent births within the group; e. Forcibly transferring children of the group to another group” (UN, 1948).

Article 55(c) of the UN Charter:

“The United Nations shall promote […] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (emphasis added, UN, 1945).

B) Worldwide valid norms

The approaches to the legality and legitimacy of humanitarian interventions can be classified into two main groups as the restrictionist approach and the counter-restrictionist approach (which covers the natural law tradition as well as the international community approach). On the one hand, restrictionists consider humanitarian intervention a violation of international law, mainly “a violation of the territorial integrity and political independence of the state”. On the other hand, counter-restrictionists argue that humanitarian interventions are permissible under customary international law and the provisions of the UN Charter promoting and protecting human rights. Moreover, they also emphasise that when a humanitarian intervention is undertaken as a collective conduct, it “expresses the will of the international community” (Duke, 1994, 33-35).

Article 39 of the UN Charter “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”

In the post Cold War era, although states claimed that they had a right to intervene in situations of mass atrocities and humanitarian justifications were granted international recognition, it is hard to say that a “right to intervene” was established under international law. As the most controversial example of the 1990s, NATO’s Kosovo intervention ignited the debates on the legality and legitimacy of humanitarian interventions and challenged the understanding that there exists a “right to intervene”.

Please note that humanitarian intervention and humanitarian aid are not the same concepts and cannot be used interchangeably. The latter as an action is peaceful in character, and it is not in conflict with the notion of state sovereignty as its deployment is based on the consent of the host state. On the other hand, humanitarian intervention is a forceful measure that can be undertaken with or (most commonly) without the consent of the host state (Griffiths and O’Callaghan, 2002, 145-147). It is also important to note that humanitarian intervention is not a synonym for peacemaking or peacekeeping, which are conducts involving measures short of use of force and essentially carried out by UN-authorised missions (or missions of regional organisations).

According to the ICISS (2001a, 47) the “right authority” has the right “to determine, in any particular case, whether a military intervention for human protection purposes should go ahead”. In this vein, the Commission posits that R2P should be carried out by the UN, and in particular the Security Council. When and if there is a deadlock in the Security Council, then the issue may be transferred to the General Assembly. The Commission also talks about the possibility of collective intervention by regional or sub-regional organisations (ICISS, 2001a, 53).

Two paragraphs of the 2005 World Summit Outcome Document on R2P: “138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it

As mentioned previously, while some states of the global south have considered R2P as a version of humanitarian intervention and approached it with caution, some others wanted to avoid the acceptance of a legal duty to act in the face of mass atrocity crimes. Regardless of the reiterated commitment to “no more Rwandas”, there seems to be a tendency to approach R2P from a mainly national interest and sovereignty-based perspective

In October 2013, in his address at the 68th Session of the General Assembly French President Francois Hollande stated that “the most serious threat of all was inaction; the worst decision was no decision; and the worst danger was to see no danger. Every time the United Nations did not act, peace suffered”. Reflecting on the case of Syria, Hollande considered the veto as the core of the problem, and urged the permanent members to adopt “a code of good conduct”, which meant that on a voluntary basis the permanent members would commit themselves to not to cast the veto while considering mass atrocity crime situations (Gözen Ercan, 2016, 122).

Even though we consider the Magna Carta Libertatum as the first example of the human rights documents, it is also important to search the previous documents that could be seen as human rights documents.

If it is compared with the current law practices, some articles as the article 39 may be seen the root of modern legal perspective. The article 39 of the Magna Carta states that ‘No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land’ and guarantees that the government will not act against its citizens except in accordance with the law. (Sol, 2016, 67). This article demonstrates the end of the unlimited authority of King, which might be called a revolution in the history of rights discourse as well. There has been a broad spectrum of amendments for over 800 years since this agreement, but the root of the fair trial thought was the article 39 of Magna Carta Libertatum. This article impeded the extrajudicial execution of the King, which expresses the main idea of the releasing trail in the current legal system.

After the Magna Carta Libertatum, legal and juridical concepts had started to change. St. Thomas Aquinas has been one of the philosophers who contributed to these developments. “Aquinas produced a systematic introduction to theology, including the definition and classification of kinds of law. Aquinas defines law in general as a role of human action determined by reason, directed towards the common good shared by all humans.” (Hayden, 2001, 43). Aquinas classifies four forms of law as eternal law, natural law, divine law and human law. These are the basic parts of law and related to human beings; namely their doing good and avoiding evil in their actions.

The first legal document Magna Carta and its amendments, with the philosophical account of right in it, have become a source of fire for the coming human rights legal documents. With the rebellion movements against the English parliament and monarch, claims for life, property and religious freedom became louder in England. Peasants and their demands about their basic needs triggered the human rights movements, even if there was nothing about them in any articles of the charter. Different classes of society were not represented in the parliament equally, and they were anxious for their rights. With the monarchical restoration, human rights thought that had been released by the English tradition was terminated. Yet the revolutionary spirit was still alive amidst peasants’ grief and despair. With the Great Revolution 1688, they fought for parliamentary and civil rights – later embraced by the English Bill of Rights