National Security and Human Rights

I found this week’s class particularly fascinating as it is an area in which the goalposts are constantly changing. It is also a very politically and legal contested area. The structure of the class and the readings this week did a great job at making me think about the legal structures in place and the intersection between human rights, security, and conflict.

Case study question: Operation Sovereign Borders

Given the prevalence of this issue in the news and the other contexts in which I’ve examined this policy in law school, it was interesting to explicitly apply human rights reasoning to this issue.

Legitimate aim: Protecting Australia and its citizens from terrorists, the stated goal of this policy, is a legitimate aim.

Rational Connection: It is not clear if there is a rational connection between the policy and the aim. Research and government statistics suggest that the vast majority of asylum seekers who come by boat are found to be genuine refugees. Furthermore, the head of ASIO recently stated that there was no evidence of a link between refugees and terrorism.

Proportionality/Minimally invasive: The policy definitely fails at this stage. There are numerous other policy proposals, such as on-shore or community detention, which would enable the legitimate aim of protecting Australia’s security to be pursued without blatantly violating the human rights of refugees.

Readings

The rapid evolution of technology is playing such a massive role in the IHL sphere and in some ways is leaving the law in its wake, scrambling to keep up. For me, the main takeaway from the readings this week was in Philip’s piece and was the idea that the transparency around the use of this technology needs to be dramatically improved.

Although it is now clear that IHRL does not cease to exist in times of armed conflict, and IHL provides a clear framework for the process that must be followed in order to take a human life in conflict, not all States are transparent about whether they adhere to these legal standards. In order to improve adherence to these norms, transparency must be viewed as essential.

Class: I must admit that I found the torture video very difficult to watch and had a visceral reaction of disgust to it at several points. It was uncomfortable and it made me flinch but it was so necessary. It made the issue feel real and immediate Of course, the importance of continuing advocacy surrounding torture was brought home by the clip of Donald Trump saying that he was a fan of waterboarding!

Related articles: 

Lessons from Syria on women’s empowerment in conflict 

When we think about conflict, we often think about men. Given that most media and portrayals of war are centred on men and their experiences of war, it can be difficult to find portrayals of women in conflict that go beyond the ‘patiently waiting for her man’ trope. This is an article from the ground in Syria which discuss some of the lessons learned in this context on strategies to reinforce women’s voices and participation during conflict. These articles address only the situation of women in areas outside the Syrian regime and under the control of opposition armed groups.

It is a vital reminder that women have an integral role to play in protecting human rights in conflict.

Face to face with the ghost of ISIS

This eerie profile of a former ISIS member emphasised the complexities of the problems that are faced in the national security space. There are numerous war crimes and grave violations mentioned in this piece, not least of which is the use of rape as a war tactic. However, the article also explores the complexities in dealing with a range of ideologues and those who are attracted to ISIS for other reasons. Indeed, it also touches on those who are forced to join against there will. For me, my initial reaction was to feel quite uncomfortable at the personal way in which the piece dealt with its subject – sometimes there is an intellectual dissonance where it is possible to forget that terrorists are people too. This is another important reminder that human rights are held by all and must not be forsaken in the quest for national security.

United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

This article on EJIL was a fascinating look at the possible implications of the US drone strike on Syria. Ir examines the evolution of IHRL, IHL and ICC since the First World War and hypothesises as to what developments could be made in the future. The core question is: can States engage in unilateral humanitarian intervention?

The author argues that sine WWII, there has been a greater focus on the human rights of individuals and the security of peoples, as opposed to the notion of state sovereignty which overpowered everything else in the first half of the 20th century. Whether the pendulum has swung more towards individuals than states is an interesting question.

The circumstances in which force can be used to protect human rights are not define by bright lines; there are numerous shades of grey. This makes it a fascinating area of law to study and engage with. I really enjoyed this perspective on the possible next step in international law.

 

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