İNSAN HAKLARI - Deneme Sınavı - 7

King John (1166-1216) – King of England during that period – had several dissensions with the barons, just because of the protracted wars and high taxation that drive the society into a corner. Besides that, English army under the King John’s rule lost many lands to France. These pressures paved the way to an inner resistance and ended up with an agreement called the Magna Carta in 1215.

English Bill of Rights can be regarded as the first document on the right of individuals about their life and religious thoughts. “That election of members of Parliament ought to be free.” (English Bill of Rights, 1689) Free election for the parliament – also it is still one of the core political values– was secured in this document. “That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious and That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law” (English Bill of Rights, 1689).

But before the United States Declaration of Independence, we should mention the Virginia Declaration of Rights published just a month before it, in the year 1776. Especially the first article of this declaration might have been the cradle of thought behind all human rights documents: “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” (Virginia Declaration of Rights, 1776) This article triggered not only the United States Declaration of Independence, but also all other modern human rights legal writings. That is the reason of its being considered as the first human rights document in the modern sense, because of its talking about equal rights of every human being, not only from rights of some people as barons.

After a long period of colonial wars and sufferings, a new state was established on July 1776. Just a month after the Virginia Declaration of Rights, United States gained his independence from England with the Declaration of Independence.

Another momentous document in human rights history is the French Declaration of the Rights of Man and Citizens declared on August 26 by the French Constituent Assembly, in 1789. The declaration ‘the rights of man and of citizens” is one of the most significant results of the French Revolution. It has been also criticised from different points of view by different thinkers. The political scientists and the historians, thoroughly appreciating its importance, have repeatedly come to the conclusion that the Declaration had no small part in the anarchy with which France was visited soon after the storming of the Bastille. They point to its abstract phrases as ambiguous and therefore dangerous, and as void of all political reality and practical statesmanship. Its empty pathos, they say, confused the mind, disturbed calm judgment, aroused passions, and stifled the sense of duty, -for of duty there is not a word. On the contrary, others especially Frenchmen, have exalted it as a revelation in the world’s history, as a catechism of the “principles of 1789” which form the eternal foundation of the state’s structure, and they have glorified it as the most precious gift that France has given to mankind (Jellinek, 1901, 1-2).

English Bill of Rights can be regarded as the first document on the right of individuals about their life and religious thoughts. “That election of members of Parliament ought to be free.” (English Bill of Rights, 1689) Free election for the parliament – also it is still one of the core political values– was secured in this document. “That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious and That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law” (English Bill of Rights, 1689).

But before the United States Declaration of Independence, we should mention the Virginia Declaration of Rights published just a month before it, in the year 1776. Especially the first article of this declaration might have been the cradle of thought behind all human rights documents: “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” (Virginia Declaration of Rights, 1776) This article triggered not only the United States Declaration of Independence, but also all other modern human rights legal writings. That is the reason of its being considered as the first human rights document in the modern sense, because of its talking about equal rights of every human being, not only from rights of some people as barons.

The American Bills of Rights do not attempt merely to set forth certain principles for the state’s organization, but they seek above all to draw the boundary line between state and individual. According to them the individual is not the possessor of rights through the state, but by his own nature he has inalienable and indefeasible rights.

Notwithstanding the positive steps taken as to the universalisation of human rights and fundamental freedoms under the roof of the UN, as the Cold War progressed, new areas of debate emerged with the mass atrocities that were being committed in different parts of the world. As can be understood from Article 1(1) of the UN Charter, the primary purpose of the UN is “to maintain international peace and security” (UN, 1945). To this end, the principles of sovereignty, equality and non-interference in the domestic affairs of states (as enshrined under Article 2 of the UN Charter, consecutively in Paragraphs 1 and 7) along with the prohibition of the threat and use of force (as established under Article 2(4) of the UN Charter) were adopted as acting principles. With reference to international practice, it is possible to observe that during the Cold War years, the UN Security Council strictly upheld the sovereignty of states on grounds of these principles even in the face of mass atrocity crimes that were committed, while the use of veto by the permanent members was a critical factor hampering a healthy decisionmaking process in the Council. In this regard, based on state practice although some scholars claim that there were exemplary practices of what is contemporarily regarded as humanitarian intervention, it is not possible to argue that this was an internationally recognised understanding. In the literature, there are three Cold War era cases that scholars refer to as precedents of contemporary understanding of humanitarian interventions wherein external military force was used to intervene in states experiencing mass violations of human rights. These are the cases of India’s intervention in East Pakistan in 1971, Vietnam’s intervention in Cambodia in 1978, and Tanzania’s intervention in Uganda in 1979. In these three cases, the intervening states based their unilateral uses of military force on the inherent right of self-defence as established under Chapter VII of the UN Charter, specifically Article 51. Their main argument was that the internal situation in their neighbouring countries constituted a threat to their security and territorial integrity (Gözen Ercan, 2016, 43-45).

Paragraph 201 introduces R2P as follows: “[…] There is a growing recognition that the issue is not the “right to intervene” of any State, but the “responsibility to protect” of every State when it comes to people suffering from avoidable catastrophe–mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease. And there is a growing acceptance that while sovereign Governments have the primary responsibility to protect their own citizens from such catastrophes, when they are unable or unwilling to do so that responsibility should be taken up by the wider international community—with it spanning a continuum involving prevention, response to violence, if necessary, and rebuilding shattered societies. The primary focus should be on assisting the cessation of violence through mediation and other tools and the protection of people through such measures as the dispatch of humanitarian, human rights and police missions. Force, if it needs to be used, should be deployed as a last resort” (UNGA, 2004).

Humanitarian intervention “the use of military means ‘across state borders’ by a state, a group of states, or an international and/or regional organisation (Abiew, 1998, 18) in order to prevent or halt ‘widespread and grave violations of the fundamental human rights of individuals other than [… the intervener(s)’s] own citizens’, (Holzgrefe, 2003, 18) with or without the consent of the target state that is subjected to the use of force in its own territory as a result of the intervention” (Gözen Ercan, 2016, 18-19).

Pillar one is about states’ responsibility to protect their populations from the commission and incitement of the four atrocity crimes, which is summed up with the notion of sovereignty as responsibility. Pillar two is about the international assistance to be provided to states to enable them in fulfilling their responsibility to protect their populations. Pillar three is about devising a collective, “timely and decisive response” in the case of the failure of a state, which can be delivered through measures ranging from peaceful to coercive. Within this pillar, the use of force can be utilised only as a last resort with the authorisation of the Security Council under the mandate of Chapter VII of the UN Charter.

Accordingly, at the state level sovereignty as  responsibility understanding was embraced, while at the international level the international community was deemed responsible for the protection of populations when states are unable. Under the separate heading of the “Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes Against Humanity,” Paragraph 138 defined states’ own responsibility to protect their populations from the four grave crimes of genocide, war crimes, ethnic cleansing and crimes against humanity” (hereinafter, mass atrocity crimes), and includes the prevention of these crimes as well as their incitement (UNGA, 2005b). While the international community’s responsibility to assist states in fulfilling their individual responsibility was referred to in Paragraph 138, Paragraph 139 urged for collective action on a case-by-case basis. Such action is to be undertaken with the mandate of the Security Council, first through means pertaining to Chapter VI and Chapter VIII of the UN Charter. The Paragraph also noted that in grave circumstances the use of force can be carried out only as a last resort by the sanctioning of the Security Council under the mandate of Chapter VII.

Pillar one is about states’ responsibility to protect their populations from the commission and incitement of the four atrocity crimes, which is summed up with the notion of sovereignty as responsibility. Pillar two is about the international assistance to be provided to states to enable them in fulfilling their responsibility to protect their populations. Pillar three is about devising a collective, “timely and decisive response” in the case of the failure of a state, which can be delivered through measures ranging from peaceful to coercive. Within this pillar, the use of force can be utilised only as a last resort with the authorisation of the Security Council under the mandate of Chapter VII of the UN Charter.

In its report, the ICISS introduced the concept of the Responsibility to Protect, which is commonly abbreviated as “R2P” (and also as “RtoP” in the literature). The main aim of the Commission was to shift the terms of the debate from the existence of a “right to intervene” towards establishing a “responsibility to protect”. Especially in the post-Cold War era, pro-intervention states have interpreted humanitarian intervention as a “right to intervene”, which meant that they could intervene if and whenever they wanted. Such approach is highly problematic from human security and international law perspectives. First, the acceptance of a right to intervene does not assure that there will be a timely response to mass atrocities. When humanitarian intervention is perceived as a right, it means that states are not obliged to take action but can or may do so if they want to. This, in return, as it was experienced in Rwanda in the 1990s, may result in inaction even when an intervention is obviously necessary to protect populations. Moreover, it does not include in its toolkit measures for enabling prevention or post-intervention reconstruction. Second, from a legal perspective, the interveners are not obliged to obtain the Security Council’s authorisation as humanitarian interventions can be carried out by a variety of actors (such as but not limited to a willing state, a coalition of states, a regional and/or international organisation) without an obligation to acquire consent or authorisation. Hence, as it was the case in the Cold War era examples, it makes unilateral interventions much easier and abuses of the doctrine more likely. Overall, such shortcomings constitute a challenge to the sovereignty, territorial integrity and political independence of the targeted state, as well as to the prohibition of threat and use of force (ICISS, 2001a, 16).

Humanitarian intervention “the use of military means ‘across state borders’ by a state, a group of states, or an international and/or regional organisation (Abiew, 1998, 18) in order to prevent or halt ‘widespread and grave violations of the fundamental human rights of individuals other than [… the intervener(s)’s] own citizens’, (Holzgrefe, 2003, 18) with or without the consent of the target state that is subjected to the use of force in its own territory as a result of the intervention” (Gözen Ercan, 2016, 18-19).

Human security According to the Commission on Human Security (2003, 4), the term refers to “protecting fundamental freedoms— freedoms that are the essence of life[;] … protecting people from critical (severe) and pervasive (widespread) threats and situations[;] …using processes that build on people’s strengths and aspirations[;] … creating political, social, environmental, economic, military and cultural systems that together give people the building blocks of survival, livelihood and dignity”.

A Three Pillar Strategy for Implementing R2P In the report, based on the consensus of 2005, Ban focused on devising a three-pillar strategy directed towards tackling issues related to R2P’s implementation. The three-pillar strategy took up on the two responsibilities—prevention and reaction—that were reflected in Paragraphs 138 and 139 of the World Summit Outcome Document. Accordingly, in line with Paragraph 138, the first pillar focuses on “state responsibility”, while the second is concerned about “international assistance and capacity-building”. On the other hand, the third pillar aims for a “timely and decisive response” as enshrined under Paragraph 139.

As it is seen above, especially the article 282, it is difficult to call these codes as a human rights document, looking from our modern human rights perspective. However, if we are able to understand the Zeitgeist of that era, the Code of Hammurabi can be considered a significant and leading document
for its own epoch.

All declarations or any written statements before the 13th century, until the Magna Carta Libertatum, cannot be regarded as pure human rights documents as it was in the case of the Code of Hammurabi.

As stated above, Magna Carta Libertatum, also known as the Articles of Barons, is far away from the current human rights thought from which we deduce the modern law practices.