Sarah M. Field
(19th March 2014, Oxford Human Rights Hub)
Conflict — perhaps like no other happening — illuminates our shared vulnerability to hurt and harm of unimaginable form and depth. The legal protection of rights was born of such suffered injustice. To an extent then, it may be viewed as a juristic response to our embodied vulnerability. Therein lies one of the enduring paradoxes of international human rights law; the most vulnerable frequently have the least access to justice. Consider the hundreds of thousands of besieged in Syria: over a thousand days since the conflict began rights violations cascade; violations of the rights to life, freedom from hunger and of movement layer upon violations of the rights transformers beneath — the rights to legal remedies, take part in public affairs, freedom of expression and association, amongst others. And, the sole possibility of redress is conditional on one of the most precarious of all political processes — decision-making towards peace agreements.
Geneva II presented hope: the Communiqués of Geneva I and the London 11 both required ensuring the right to humanitarian assistance as a part of more substantive negotiations. As the two-staged process stalled to a fracturing halt on the 15th February, the hope transferred to the Security Council. The decision to adopt Resolution 2139 — demanding the parties to the conflict respect and ensure respect for applicable international law — presented a breakthrough. However, the imperative for, the process of its adoption, and the substance of the resolution including the missing (negotiated-out) provisions illumines, under harsh light, the inadequacies of international law. Of course, the multifarious instruments of international human rights and humanitarian law include vital — dignity affirming — devices. If, the Syrian State had implemented the past recommendations of the Human Rights Committee, might the conflict have been averted? And if the parties to the conflict had heeded the guidance of the guardian of international humanitarian law, might the hurt and harm have been lessened? Of course, the operative word here is — if.
Into the breach, steps the international community ‘in’ and ‘through’ the Charter bodies. For the people living under siege, these are also vital spaces for their rights to be seized, shaped and expressed: general and Syria-specific recommendations and decisions provide a basis for advocacy and redress now and into the future, for example, the decision by the Human Rights Council to establish an Independent International Commission of Inquiry. However the form and process of decision-making (including rules) also may be viewed as concurrently creating vulnerability. The State-centric form by exclusion: for example, whereas the Syrian State was represented within the Security Council, those made vulnerable by the forces of the State were unrepresented; they were dependent on the international community seizing, shaping and expressing their rights. And the process by (in)action: whether or not their rights are secured is dependent on political agreement about the facts and the response — specifically between the five veto-wielding members.
The vulnerability effects of the latter are obvious and graphically illustrated by the resolution: the demands on the parties to the conflict to respect and ensure respect for international law are not matched by decisions to secure the right to humanitarian assistance of the people of Syria. However the form and process also creates vulnerability in a more subtle way, by subverting the position of the right-holder — reframing bearers of rights to objects of international protection. De jure, the people under siege remain ‘equal in dignity and rights’. De facto, (without representation and effective remedies) they are dependent on a precarious collision of legal, political and principled imperatives for redress. Viewed in this way, neither the process nor the outcomes dignify the people of Syria.
Though deeply inadequate, the resolution is nonetheless a vital dignity-affirming agreement. First, it states that international law matters, rights matter. Second, it illumines the potentialities of law into the future: connecting violations to international crimes, establishing a monitoring and reporting mechanism and expressing an intention for further action upon non-compliance. Third, it re-affirms the import of a rights-based political solution: the full participation of the people of Syria ‘in’ and ‘through’ the peace trajectory. Countering the inaction, then, is the fact of agreement by a divided Security Council. Geneva II stalled, the right to veto looming over future Security Council decisions with foreboding bleakness, the question of how to secure the rights of the most vulnerable remains — reducing us all.
Sarah M. Field is a Human Rights Practitioner with global experience supporting the rights-based development of the rule of law, a Post-Doctoral Researcher at the Faculty of Law, University College Cork, Ireland and the founder of a developing legal advocacy project asking the child question.