Protected Persons under International Humanitarian Law

International Humanitarian Law is meant to inter alia protect persons from the savagery of warfare. These protected persons are described in the four Geneva Conventions and their Additional Protocols. Broadly they are categorized here for purposes of convenience as Combatants/other legitimate participants in hostilities, Civilians and the Humanitarian Core. Each is examined briefly.

Combatants and other legitimate participants in hostilities

Combatants and those who are considered legitimate participants in hostilities are that group of individuals that get protection in special circumstances. These circumstances include when they are injured or sick (Geneva Convention I, article 12), shipwrecked (Geneva Convention II, article 12) or fall into the hands of the enemy (Geneva Convention III, article 4). Other than that, they can be targeted as legitimate military objectives and their deaths are lawful (Additional Protocol I, article 43[2]).

Combatants are members of the armed forces of a Party to the conflict excluding medical personnel and chaplains (AP I, article 43[2]). Article 13 common to GC I and II provide protection for those who are not necessarily members of the armed forces Party to a conflict thus the other legitimate participants in hostilities.

Such include militias, volunteer corps and organized resistance movements provided they observe the listed rules under clause 2 paragraphs (a)-(d). It also includes people who accompany the armed forces such as war correspondence, supply contractors etc. Finally those who spontaneously take up arms on approach of the enemy without having time to organize themselves into regular armed units (levee en masse) are also considered for protection.

Those who parachute from aircrafts in distress are also included under article 42, AP I. They are to be allowed to reach the ground of territory controlled by the adverse Party to the conflict and given an opportunity to surrender.

Civilians

This group is considered to be the most vulnerable. They are thus protected at all times and in all circumstances.

They are protected under article 4 & 13 of Geneva Convention IV, AP I arts.10 & 50 and AP II art.7. Article 4 confines the term protected persons as those from a Party to the conflict, who is a signatory to the convention and is conducting hostilities with the Party in whose hands the civilians fall into.

Article 13 covers the entire population of a country in conflict. It (GC IV) does not define who a civilian is but article 50 of AP I does this by describing them as what they are not. It refers one to GC III article 4 A (1); (2), (3) and (6) as well as Article 43 of AP I. There are also special categories of civilians recognized such as refugees and stateless persons (GC IV, art. 44 & AP I, art.73), women and children (GC IV, art.50 & AP I arts.76-77) and journalists (AP I, art.79).

Humanitarian Core

This group is concerned with the alleviation of pain and suffering during armed conflict. They include medical personnel, religious personnel and humanitarian relief personnel. They are protected by the conventions and Additional Protocols. For detailed information see GC I arts.24-26, GC II arts.36-37, GC III art.33, AP I, arts.15 & 71(2) & AP II art.9.

Please note that this is just a mind map on protected persons and that one should read the texts of the Geneva Conventions and their Additional Protocols to come up with a comprehensive list.

Of Human Nature and State Behaviour (Part IV)

This is the final post on the series on Machiavelli’s The Prince. In the discipline of International Relations, human nature is often conflated with that of the state. Thus if human nature has a certain quality, that quality is also attributed to the state. It may be that the reasoning behind this is the abstract nature of state which would require humans through government to direct its affairs.

Before going any further I must note debates surrounding the notion of human nature. Many of us assume that there is indeed a common verifiable trait in human beings that transcends any distinction  Most of us believe human beings will behave in the same/similar manner in same/similar circumstances regardless of class or race or any other distinction we impose on ourselves.

However, we do not agree on how these attributes come about. There are those who believe that they are inert; we were born with them. Others vehemently oppose this to adopt the thought that we learn these characteristics from our environment. Machiavelli appears to be of the former’s persuasion as he argues that these traits are present and inert in human beings. Below are some of the traits he discusses in his book.

Appearance Oriented

Machiavelli believes that human beings rarely look beyond appearances. They often conflate the outward look of fellow human beings  with their character. Thus he advises a Prince to always be on the guard with respect to what traits he would like to project. This introduces the theme of perception in politics and how much political capital one can gain from prudent exploitation of thereof.

As far as behaviour of states goes, I see some relevance of this deduction. Perception in international politics is crucial when power is involved. Since there appears to be no scientific method of accurately measuring state power yet, states often project an element of the same which others in the international system perceive as that state’s aggregate power. For instance military might has been perceived to be an accretion of state power and thus infantry and artillery combined is deemed proof of this power. Then again the reality might be quite different.

Bad/Selfish (Good versus Evil)

Man is generally bad. This is according to Machiavelli as he gives a scathing assessment of what can be deemed as an idealist stance. Therein Machiavelli comments that how men ought to live and how they actually live is so different that he who studies the former labours in futility. He adds that those that are good often fall prey to the machinations of the many that are not. Finally he states that goodness should be used for political capital thus need to be used out of necessity.

I think in regards to the way a majority of states perceive the international system and relations in that system, Machiavelli may be on to something. Through the modern history of the state system, states have always viewed the acts of others with much trepidation. With every state concerned about its security, the underlying factor in arms races is the belief that states cannot be trusted since they are at the core bad and will only seek to aggrandize their interests. Therefore the only way to protect ourselves would be to get more arms which are better than the next state.

Comfort Lovers/Indolent

Rarely do human beings want to experience hardships. They will try to avoid hardships and all types of hard work but still expect to enjoy maximum benefits. Machiavelli reckons that if a prince makes it difficult for another to attack his princedom then he is secure because of man’s inherent indolence. He will also be secure because, according to Machiavelli, humans are, by disposition, risk averse beings.

At the inter-state level, I see the concept of balance of power and deterrence as fitting into this assessment of human nature. These two can be viewed to be predicated on the assumption of man’s nature (and perhaps state’s nature) of indolence and predisposition to avert risks. If it is too difficult or too risky to attack another state, no state would consider doing so. Case in point: use of nuclear weapons against a nuclear weapon wielding state, its interests or its allies. Of course we assume that this state is rational.

Insatiable

One can never really satisfy human beings. Give a man a loaf today; chances are that they will be back for more tomorrow. Machiavelli uses this trait to encourage a prince to be frugal with his resources. He warns against copious expression of liberality, as this would likely bankrupt the state and only endear a few. Thus magnanimity is used as a tool for maintaining political power and nothing more.

Though prone to be taken for granted, Machiavelli’s thought is relevant while examining  aid programs by more endowed states. For instance, the United States has been able to take advantage of the insatiability of economically developing states to push through its democratization agenda. With the rise of the unipolar system with the US at the helm in the late 20th century, many states have had to dance to the tunes of the sole super power for economic development.

Myopic

When human beings look at life, they more often than not do not look beyond their noses. At least this is the case according to Machiavelli. Man wants benefits now rather than later which may lead to impatience. He thrives at looking at the present needs forgetting that he will have needs in tomorrow.

I see a correlation between this notion and international environmental relations. Little else has been more acrimonious and divisive than the protection of mother earth at the international level. Many states, especially those still developing (e.g. China) and developed, somehow see it as a threat to their development and continued dominance in world affairs if the world agrees on ways to save the planet. Much focus is on the economic viability of these agreements (here and now) rather than the debilitating effects this continued arrogance yields for our future.

Obstinate

Finally, ever wonder whether law is enforceable without a degree of force? If you have, you are among the few who are socially conscious. A question frequently asked by jurists is whether law requires force for compliance. Machiavelli has no qualms in asserting that it does. In his opinion, one cannot have good laws without good arms. He adds that human beings are not predisposed to obedience and use of force/coercion pushes then towards compliance. Into the bargain, he opines that man is motivated more by fear of punishment than by expressions of love by a prince.

Internationally this principle can be deduced when it comes to international law. For years there has been debate as to whether international law is law properly so called (borrowing John Austin’s lingo). This is because it has weak enforcement mechanism and from many a realist perspective it amounts to nothing more than international comity. However one should note that international law is applied especially in cases where there’s  real threat to international security (first Gulf War) or where it is in the interest of a dominant actor in the international system (second Gulf War). The understanding here is that states may not be inclined (thus obstinate) to obey international law if it directly conflicts its interests.

 

The Kenyan Judiciary and Foreign Policy: The case of President Omar al-Bashir

In any state based on a constitution, there are certain basic values that are held in esteem. Among these is the separation of powers and checks and balances. Thus, in such states one often encounters three branches of government namely the executive, legislature and judiciary. Each branch with a specific task and given power to check the powers of the other two.

As relates foreign policy, the chief driver thereof is the executive. The executive is deemed to be the responsible arm of government that conducts foreign relations with other states. However it’s power is checked by the other branches of government and thus to attain the objectives it enunciates in its foreign policy there must be some sort of internal diplomacy.

The above brings into sharp focus the role of the judiciary, if any, in foreign policy execution. Without entering into the debate in this present entry, it is agreeable that the decisions of courts do have an impact on the execution of our foreign policy. I use the Bashir case as an example.

In 2011 the High Court of Kenya issued orders compelling the executive to arrest President Bashir if and when he sets foot on Kenyan soil. Recrimination was swift and clear. Khartoum recalled her ambassador and the executive was thrown into a diplomatic crisis. By that one decision the courts became an actor in the implementation of our foreign policy.

What did the decision mean for Kenya’s foreign policy? One is that Bashir became essentially persona non grata. He was no longer welcome in the country. The chief diplomat representing the government of Sudan was no longer welcome in Kenya. It therefore limits options of a summit bilateral diplomacy between Kenya and Sudan. This type of diplomacy is said to be the most effective as it cuts through bureaucracies and gets straight to the issues thus an advantageous option for Kenya.

In the same breath, the judgment bred suspicion. In the realm of international politics perception usually counts for everything. Human beings, according to Machiavelli, hardly looking beyond the surface make conclusions based on what they can see at first without so much as a second thought. Thus the government of Sudan must have perceived this as a message to Sudan that Kenya would cooperate with the ICC in Bashir’s arrest. Thus it was ready to sever ties with Kenya when it asked our ambassador to leave Khartoum within 72 hours and asked her ambassador to return home.

Results of severing of ties? Worst case scenario would be that Kenya would lose the lucrative trade balance tipped in her favour. According to estimates by the Export Promotion Council, Sudan’s imports from Kenya was at Ksh.12.75 billion in 2009. In contrast, her exports to Kenya was at Ksh.11.64 million. Clearly Kenya was gaining in this trade and would have lost it if Sudan would have effected the severing of ties.

Another implication would have been the possible expulsion/harassment of Kenyans living and working there. Without an embassy to report such cases, there lives would be very difficult to sustain and would necessitate them to come back home. This would create headache for the government in terms of settling the accounts on the investments that these Kenyans might have had in Sudan.

Therefore from a cost-benefit analysis, Kenya would stand to lose more from following international law in arresting Bashir than by ignoring it. I know it may sound very cruel since the man is accused of great atrocities. However, looking at the reality of international politics, many nations seldom adhere to international law principles if they cannot use it to justify their actions or the pursuit of their interests. This is called political realism.

Through the actions of deft diplomacy, there is a ceasefire of sorts. The Sudanese government has suspended its decision to expel our ambassador pending the outcome of the decision of the Court of Appeal. I am aware that there is an appeal that is sub judice and the executive through the office of the Attorney General is fighting hard to reverse the decision. It may very well be that Kenya-Sudan relations will be hinged on this decision.

However as far as the Kenyan judiciary goes, I am unable to see it relenting on its position in this matter. The new found independence and the rise of judicial activism has so much intoxicated those that call themselves reformers therein to such an extent that they would want to outdo each other on the strict interpretation and application of the law.  I do not see the Court of Appeal reversing the decision as it is.

In analyzing all this, one must also factor in the political implication of the Lamu Port-South Sudan Ethiopia Transport And Economic Development Corridor commonly known as LAPSSET. Since it provides South Sudan with an alternative facility to refine its oil, it means that it directly affects the interests of Sudan further fanning the perception that Kenya is a threat to its national interests. This further complicates matters for the executive in managing our relations with Sudan.

The executive must therefore work out its plans in the knowledge that today’s judiciary seeks above all to stamp its independence which may mean that its work would be more often than not more complicated. One question that resounds in these set of circumstances is whether the courts ought to consider matters of policy while making decisions on matters of law. One thing is for sure, if this decision is anything to go by, the answer is no.