Humanitarian Law v. Human Rights Law, plus Refugees

Evolution of International Humanitarian Law
– first humanitarian treaty 1864
– Hague Conferences and Swiss Conventions are complementary traditions
– fusion by 1977
– pushed by evangelical Christians / ICRC and states (to maintain political viability of war) / military officers (?)
– parrelels between Antislavery Society in London and ICRC
– mass / 4G issues because of improved communication technologies
– 4 Geneva Conventions in ’49, 2 protocols in ’77
– irony: International Humanitarian Law (IHL) codifies rights of war, attacking, bombing, etc

Evolution of International Human Rights Law
– first mention of IHR in UN Charter
– second: UN Universal
– Declaration of Human Rights
– but, Hermann Bergers shows how intrawar efforts were at least made
– in Europe, pushed by young democracies attempting to preserve political stability
– IHRL much more state-led than IHL, which had large NGO component
– US/FDR/HST led effort globally
– FDR etc make IHRL part of national interest, because of dangers that “non-human-rights” regimes did
– FDR instructed Department of State to start work on IHRL / UN Charter from ’42 or ’43

Domains
IHL = wartime
IHRL = peacetime
but… Torture Convention (1984) “in times of war or otherwise”
is “war” and “otherwise” all inclusives, or merely two sets?
– Clausewitz/Westphalian and Sun Tzu/Unlimited
– maybe to demonstrate, create two fuzzy sets that show how something could not be either
” times of War and otherwise” v. “times of War and Otherwise”?

International Covenant on Civil and Political Rights
– contains derogable (suspendable) and nonderogable (nonsuspendable) rights
– but…. does the concept of nonderogable rights contrict the UN Charter’s right to self defense, and UN Charter’s “trumping” provision? BC: No one had made that claim before, and no international court or UNSCR supports it
– US ratified, but “not yet bothered” to get around to a Declaration of Derogation — possibly because a declaration would highlight non-derogable portions?

BC: Abu Gharib a distraction; just some guys; “the real issue is intentional torture and mistreatment as authorized”

US answers to “non-judicial; non-factual” review by ICRC

Woodrow Wilson’s 14 Points
– human rights are absent
– because Wilson, “this Southern Presbytarian racist,” was opposed to racial equality
– (remember, he ran against “hyphenated Americans,” “German-Americans,” etc)
– Wilson “would have none of” Japanese racial equality proposal

Murphy: best way to protect IHR is to enforce it domestically

issues that trigger ICC relate to investigation and conviction, not punishment
– a cognitive strategy?
– weak behavioral, social cognitive strategy

Big Cheese: It was Gonzales, and Ashcroft, and Rumsfeld, and people around Rumsfeld, who played fast and loose with detainees — by and large, the military lawyers were aghast.”

Schlessinger Report – an “independent” report critical of the ICRC by “neanderthals”

Refugee Law and Affairs

UNHCR
– first purpose was legalization of European refugee
– originally on a 3-year mandate
– gradually focus more on repatriation
– 1951 Convention defines “refugee” as someone with a well-founded fear of prosectuion. But doesn’t include internally displaced persons (is a self-executing treaty in the US)
– 1956: Soviet invasion of Hungary created refugees in post-WWII situation. Many internally displaced persons (but not “refugees” under 1951 definition)
– every UNHCR always pro-Western and US approved

Know “The Lotis Case”

In Bosnian case, UNHCR wishes to shut down because of harrasment by locals — but US through UN forces them to continue, because the Clinton administration didn’t want to get directly involved

— unrelated: 25 cent tacos at knickerbockers

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