State A is inhabited by majority group X and minority group Y. In January 2017, State A started to finance, organise, train and equip private militias that deliberately killed members of group Y and inflicted on group Y living conditions calculated to bring about its physical destruction.
In April 2017, the UN established a multilateral force as a subsidiary organ enjoying power delegated by the Security Council under chapter VII of the UN Charter. The multilateral force is led by States C and D. State C directed the multilateral force in aerial bombings targeting ammunition deposits in State A. State D directed the multilateral force in military operations within the territory of State A targeting private militias active against group Y. In the course of terrestrial operations, members of the UN multilateral force allegedly committed acts of torture against members of private militias.
States A, C and D are parties to the Rome Statute on the International Criminal Court.
In light of relevant international instruments, case law and scholarly opinions, assess the legality of the following, including the responsibility of States and international organisations:
Discussions
Human rights are an international issue and based on the fundamental rights of the human beings. Human rights describe the moral principle that assists to standardise the human behaviour and protect the interest of the minorities through legal rights. United Nation provides certain provisions imposed on the states for the protection of the human rights and intend to eradicate the discrimination by establishing commissions and amending new provisions. The United Nation Commission on Human Rights is one of the chief functioning commissions that deal with certain freedoms including rights of racial and ethnic minorities. According to Article 48 (1) (b) of ILC, it is the duty of every state to protect the rights of the minorities and maintain an ambiance so that the minorities can lead their life and practice their own culture without any interference. Chapter VII of United Nations Charter provides certain power to the Security Council so that they can take all the necessary actions against the state that is violating the norms of the United Nation and actively participated in the aggressive acts. Under the Charter, strategic coordination can be done by the military staff committees. The possible responsibility of the states regarding the protection of the interest of the minorities should be discussed for the better understanding.
It has been observed that in state A, there are two groups such as group X and group Y. Group Y is the minorities group and exploited by group X. This problem is based on the human rights and it has been observed that State A has failed to confirm minimum fundamental rights to the minorities. It can be considered as the sheer failure of the state and there is a necessity for the UN interference over the subject. A conceptual innovation regarding the subject has been propounded by Asbjorn Eide and he had stated certain state obligations for the promotion of human rights. The central pivot of his report was to establish the right to adequate food as a human right. Henry Shue was made a distinction in between three duties such as the avoid human rights discrimination; protect people from deprivation and duty to aid the deprived people. He imposed certain obligations on the states for providing respect to the human rights and protects the interest of the minorities for the betterment of the humanity.
The main objective of the Chapter VII of the United Nations Charter is to maintain peace by appointing Security Council. Certain obligatory actions has been provided to the Security Council so that they can take all the necessity actions against the alleged state who has violated the provisions of the human rights and failed to provide necessary steps for the establishment of peace and justice.
Action taken by private militias against group Y
Certain legal rights have also been given to the minorities so that they can lead their life without any hesitation. International Court of Justice has been established for the protection of the legal rights and it prohibits the chance of genocide, slavery or other racial favouritism in the lights of legal provisions. Article 53 of Vienna Convention on Law of Treaties prohibited the derogatory works and imposed certain unitary obligations on the states as against the violation of human rights. According to Article 41 of ILC, the states are responsible for the establishment of basic human rights and deal with the matter on the basis of international humanitarian law. The international court may take certain actions for the protection of human rights and prohibit the arms action in different states. Similar actions have been taken in case of Democratic republic of Congo v Rwanda.
The provision of state responsibility has been provided under Article 42 (b) (ii) of the ILC where it has been stated that if a state has failed to establish the human rights, then it should be the duty of the other member states to help that state. Lawful measures can be taken by the states under Article 54 of ILC and according to the Article; state cooperation is needed in case of serious breach made against human rights and the protection of the interest of minorities. Legal actions have been observed in case of occupied Palestinian territory and it was observed by the International Court of Justice that the states are under an obligation to take all necessary steps together for the protection of the rights of the affected minority communities in Palestine.
In the lights of above mentioned discussion, it can be stated that legal actions must be taken against group X under the Article of 54 of ILC and the states are liable to take all the necessary actions under Article 42 and 48 of ILC.
According to Article 48 of the ILC, the states should be responsible for the protection of the human rights and will take all the necessary actions for the protection of the rights of the minorities. However, there are certain provisions mentioned under chapter VII of the United Nations Charter where the Security Council may take certain other provisions for the establishment of the fundamental rights of the minorities. However, it has been mentioned under this paper that the alleged state A is a member of the Roman Statute and there are certain provisions engraved under different Articles of the statute for the legal status and power of the court and United Nations over these states.
Action undertaken by the UN multilateral force against State A
Chapter VII of the charter has provided certain military powers to the member states and according to the chapter, failure to maintain the standard of human rights in a state is a crime and if any state will infringe the basic norms regarding the human rights should have to face the actions taken by the Security Council. The involvement of international criminal court could be possible in such circumstances.
Failure of the state to maintain all the provision on the human rights can be considered as the infringement and therefore, multilateral actions can be taken by the other states for the protection of the minorities. According to Article 42 of ILC, actions can be taken by air, sea or land forces for the protection of international peace and justice.
However, humanitarian intervention can be treated as the compelling foreign policy and are treated as a potential threat to the state sovereignty. Certain moral principles are being involved regarding the human rights and use of the state force under this intervention. It has been observed under this paper that state A has failed to take all the possible steps for the protection of the human rights and failed to ensure protection to the minorities and a multilateral action has been taken by state C and D. This concept of applying multilateral forces has certain positive and negative sides.
According to Jonathan Freidman, military action on humanitarian ground should not be based on political arguments and should be taken on the base of moral ground. Dilemma cropped up when Adolf Hitler titled his actions on Sudetenland as humanitarian intervention and narrate the reason as to quash the tension in Czechoslovakia behind the action. It is a popular principle of sovereignty that the internal matters of the state should be resolved by the state only and the outer state should not have any power to interfere in the matter. However, the state interference can be observed since historical period and the Greek War of Independence can be treated as one of the greatest example of state interference.
On the other side, there are certain positive sides too. It has been mentioned by the United Nation that certain things such as the human rights are of international in nature and therefore, any action taken in or against such topic should be deal with internationally. The UN charter has provided certain actionable principle as against the states who have failed to take all necessary steps for the promotion of human rights.
It can be stated that the action taken by the other states in case of maintaining peace in state A by way of multilateral action should be based on moral views and there should have no action taken on the basis of political satire. All the actions must be adopted to help the state A regarding the minorities issue and there should be no other influences take place within the alleged state.
Action undertaken by the UN multilateral force against private militias:
It has been observed by Asbjorn Eide in his report on Human Rights that all the discriminations over the minorities should be prevented and third party can take actions to prevent other parties to infringe the provisions on human rights. It has been provided by him that the human rights have certain advantages and disadvantages and it is the duty of the states to choose the positive approaches of the human rights. United Nations are obliged to take all the required actions for the protection of international matters like human rights and deliver certain guidelines regarding the same.
Chapter VII of the UN charter has stated certain actions that can be taken in case of violation of human rights provisions and state cooperation has also been stated to deal with the matters. It should be taken into consideration that whether the other state has any right to take action against the internal matter of the other state or not. It is a question of direct interference against the sovereignty of a state.
It has been clarified from the text that state A is alleged to take action against the minorities without any reason. It can therefore be treated as direct breach of the rules of the human rights. Multilateral forces were engaged by other two states against the wrongful action of State A. The objective of those states have two aspects: first to destroy the ammunitions stored by state A and the other is to encounter the private militias who are actively engaged to kill the minorities. Every minority has a right to live and any action taken against this can be treated as a violation to fundamental principle. It is the duty to prevent all the ill forces to take action against the minorities and from that prospect, encounter of the private militias can be treated as good and reasonable.
Conclusion:
It has been learned from the above mentioned discussion that there are certain principles laid for the protection of the human rights, but it is important to implement the principles with clarity. Right to live is the most important right for the human being and any violation to this right should be regarded as the punishable offence in case of state or individual. United Nation has taken many steps for securing the human right and also implemented certain punishable offence for the violating states. However, there are certain ethical dilemmas engaged in this case. According to UN charter and Article 54 of ILC, legal actions can be taken by other state against the violating state. This rule may hurt the principle of sovereignty. It can be concluded that the main aim of human kind is secure peace and justice by maintaining the human rights rules and in case of any violation, universal initiative is necessary. Therefore, the action taken by the private militias should be prevented to protect the minorities in state A.
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