By Professor Mary Ellen O'Connell, Notre Damme Law School.
William Schabas, one of the foremost human rights defenders of his generation, courageously declared that peace is a human right during a time when prominent human rights advocates call for the use of military force. The flourishing of human rights requires the condition peace. Thus, human rights law is naturally aligned with the international law restricting resort to force. Both are essential to the flourishing of humanity and the natural world. Those calling for military force to promote human rights likely labor under the false assumption that armed conflict is an effective means for accomplishing a variety of desiderata from humanitarian causes to suppressing terrorism to arms control. Military force is often viewed today as a tool of change, not a method of last resort. In fact, military force takes lives; it destroys homes and the environment; it leaves scars that never heal. One of the most important human rights protections we have is the prohibition on resort to force. Protection human rights, in particular the right to life, is incompatible with advocating greater resort to war. Professor Schabas championed this pairing of rules as this essay in his honor emphasizes. It concludes that for the long arc of history to truly be toward justice, it must also bend toward peace.
Keywords: human rights, peace, international law, prohibition on the use of force, humanitarian intervention.
William Schabas, one of the foremost human rights defenders of his generation, courageously declared that peace is a human right during a time when prominent human rights advocates have called for the use of force in the cause of human rights. Schabas understands that human rights law is naturally aligned with the law restricting resort to force. This chapter in his honor supports his position. Human rights law and the law of peace are not only aligned, they are both essential to the flourishing of humanity and the natural world.
In 2014, 38 million people were displaced by armed conflict, the most in history.(2) Finding a reliable estimate of the number of people who died as a result of the fighting around the world is more difficult. The numbers of those injured physically and psychologically are uncountable. Destruction of the built and natural environment is vast. These facts underscore the need to take seriously the law of peace, which is law against war.
The United Nations Charter prohibits all major force unless it is in self-defense to an armed attack or has Security Council authorization. Since the 1970s, however, there has been an interest in allowing an additional exception in cases of serious violations of human rights. Arguments in support of “humanitarian intervention” have helped to corrode the accurate understanding of what the prohibition on the use of force actually requires. Even among international law scholars today, a widespread perception has developed that killing in the name of human rights is lawful. Parallel to this development is the more general decline in knowledge of and respect for international law, certainly in the United States. Following Schabas, this chapter argues for a reversal in these trends toward arguing for greater use of force in violation of international law. Humanity needs peace for human rights to flourish, and the world needs the robust rule of law for peace.
II. THE INTERNATIONAL LAW OF PEACE
The history of international law can be told in terms of moving toward ever-increasing legal control of the right of states to resort to military force. In 1945, the international community agreed to a comprehensive peace regime in the United Nations Charter. At the heart of the regime is the general prohibition on the use of force in Article 2(4).(3) The Charter’s only exceptions are for force in self-defense to a significant armed attack and as authorized by the UN Security Council for the maintenance of international peace and security. These principles squarely aim at realizing the UN’s overriding purpose, as stated poetically in the opening line of the Charter Preamble: ‘We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind’.
The plain terms and structure of the Charter, as well as the negotiating history, all support the priority as war prevention. In addition to the express ban on resort to force, the Charter supports the realization of peace in other ways. It provides for alternatives to the use of force, and it supports respect for human rights and the achievement of economic development to eliminate the causes of conflict.
Charter Article 2(4) broadly prohibits the resort to force in international relations:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
The drafting history is clear that Article 2(4) prohibits all force between states except minimal forms as needed, for example, in effecting an arrest by shooting across the bow of a ship.(4) A member of the US delegation in responding to a question by the Brazilian delegation on Article 2(4)’s scope said, ‘the authors of the original text [intended] to state in the broadest terms an absolute all-inclusive prohibition; the phrase “or in any other manner” was designed to insure that there should be no loopholes’.(5)
Article 51 permits individual and collective self-defense if an armed attack occurs. The United Nations Charter permits unilateral self-defense only in cases where objective evidence of an emergency exists for the entire world to see, namely, evidence of an armed attack or an action amounting to an armed attack.(6) Other less tangible or immediate threats are to be submitted to the collective scrutiny of the Security Council. The Charter’s drafters believed that collective deliberation of the Council would be a better process for determining threats to the peace than would the unilateral decision of the potential victim. Articles 39 and 42 provide for the Security Council to authorize force if necessary to restore international peace in the face of a ‘threat to the peace, breach of the peace, or act of aggression’.
MARY ELLEN O’CONNELL, THE ARC TOWARD JUSTICE AND PEACE, IN ARCS OF GLOBAL JUSTICE: ESSAYS IN HONOUR OF WILLIAM A. SCHABAS (D. AMANN & M. DE GUZMAN EDS. OXFORD UNIVERSITY PRESS, 2018).
O'Connell, Mary Ellen, The Arc toward Justice and Peace (April 4, 2019). Mary Ellen O'Connell, The Arc toward Justice and Peace, in Arcs of Global Justice: Essays in Honour of William A. Schabas (D. Amann & M. de Guzman eds. Oxford University Press, 2018), pp. 467-483; Notre Dame Legal Studies Paper No. 1932. Available at SSRN: https://ssrn.com/abstract=3366585