After over 11 days of popular protests by an outstandingly united front amongst the Egyptian people and a climate of intensifying violence and insecurity, a recent article on Al-Jazeera news channel discusses the reasons for which the UN has yet to get involved in any meaningful way in the situation in Egypt, not even by expressing its support for the struggle of the Egyptian people against an abusive regime that has systematically violated human rights and international law (see also video of Al-Jazeera news report). In order to understand the position of international law on this matter, we should recall that international law imposes a number of obligations on third states in situations of human rights abuses of a particular gravity, which in the case of Egypt, obligates the international community to undertake steps to ensure, at the very least, that reforms in the country comply with the standards of international law bringing an effective end to a long-lived regime of human rights abuses.
The Al-Jazeera article reports that the Russian ambassador to the UN, Vitaly Churkin, said the following about prospective UN actions on Egypt: “I think that the United Nations should be dealing with its many tasks, which do not include poking fingers in the eyes of leaders in other countries.” He continued, “It is our general position that one has to refrain from interfering in domestic affairs of our countries, especially in a situation where we are dealing with a case of extreme complexity.” Not to underestimate the inherent level of hypocrisy that exists in the politics of some States, but it is hard not to be taken by this statement in light of the US’s recent gestures encouraging President Mubarak’s resignation and backing his deputy VP Suleiman (see, for instance, an article in the Guardian earlier today entitled “Hosni Mubarak’s power fades as US backs his deputy”), as well as Israel’s persistence at safeguarding its political interests, whilst the Egyptian people continue to rally in the streets short of being able to secure a participatory role in the shaping of prospective reforms in their country.
In the midst of these political maneuvers, the question that is most critical from an international legal perspective, is whether the UN, representing the international community as a whole, or individual States intend to undertake measures in support of the Egyptian people and the universal values of justice, freedom and human rights. This kind of legal analysis would also need to examine the level of inaction on the part of international community and the overall absence of consciousness of legal or even moral responsibility, including the extent to which it complies with the law and spirit of the UN, namely the operative mandate of the UN Charter and the customary rules of public international law.
The rules of international law on third state responsibility in the ILC Draft Articles on State Responsibility and the UN Charter enshrine state duties to abstain from helping a regime that is responsible for violations of human rights, especially those amounting to jus cogens, as well as a duty to cooperate to ensure the cessation of these violations. The allegations of torture against the Egyptian authorities alongside with a list of other human rights abuses are plentiful, according to the threshold required by the law, to substantiate a claim the States are required to fulfill their obligations under this framework (notably, these being obligations of means and not of result). The threshold is much lower than has been indicated in the press, which has only mentioned cases of mass atrocities and genocide as the widely recognised situations in which the UN SC would be expected to take action (see Al-Jazeera’s article above).
This said, the recent practice of the UN Security Council has shown that, with the exception of cases of an invading army or ongoing genocide or mass atrocities, the Council has rarely expressed an interest in acting in support or affording assistance in a domestic uprising. Notwithstanding, the UN Charter logically reinforces third state responsibilities by providing states with a forum, namely the UN system, to act upon these obligations. Moreover, the organs of the UN are granted a breadth of powers under the Charter to act in circumstances that constitute a severe state of civil unrest and internal disturbance. The UN Charter alongside with a number of (soft) legal documents and examples from state and UN practice indicate a remarkably broad understanding of the term “threat to international peace and security”. The definition of a situation as a threat allows international organs and states to act accordingly and call upon them to react to the situation. The present situation in Egypt may not necessarily be framed under this terminology, however the broad interpretation of these terms does reinforce states’ obligations to provide a certain level of support to the Egyptian people and facilitate an effective political reconciliation process that ensures the participation of the Egyptian people and brings an end to human rights abuses.
Interestingly, the OHCHR called earlier this week for Egypt to end violence and restore peace. The High Commissioner said that “Change is coming to Egypt, as it came to Tunisia, but the violence and bloodshed must stop now.” The question is what authorities would be responsible for implementing measures to restore peace? Possibly an even more important question should be how this change will come and whether peace and security could realistically be restored and maintained internally (considering the current level of popular revolt), without any kind of international or regional support.
It is time that the international community recall and adhere to its international legal obligations and seek to undertake measures that go beyond tame statements condemning the crackdown against protesters. It is only by adhering to its legal and moral duties and upholding the core universal values of justice and freedom that the international community could effectively ensure international peace and security in the spirit and intention of its raison d’être.
See the following examples of recent publications on the move to a more public international law that keeps the public interest as a core value by advocating, inter alia, for the application and enforcement of third state responsibilities and and erga omnes obligations:
Benedict Kingsbury, Megan Donaldson, “From Bilateralism to Publicness in International Law” (in Essays in Honour of Bruno Simma, forthcoming; available on SSRN).
Annie Bird, “Third State Responsibilities for Human Rights Violations”, European Journal of International Law (2010), Vol. 21 No. 4, 883–900; and
Monica Hakimi, “State Bystander Responsibility”, European Journal of International Law (2010), Vol. 21, No. 2, 341-385.
A recent development not mentioned in the body of the post is that INTERIGHTS, the international centre for the legal protection of human rights, a London-based NGO, has submitted a request to the African Commission on Human and Peoples’ Rights, with which it has consultative status, urging the State of Egypt to take urgent provisional measures to protect human rights in respect of the ongoing serious violations currently taking place in the country. It also asks that the African Commission, which has a crucial role as guardian of human rights in the region, to do all in its power to ensure that the Egyptian authorities cease the violations and take immediate measures to safeguard human rights under the African Charter, which Egypt is a party to.
See also Human Rights Watch’s recent report, ‘Work on Him Until He Confesses’, on impunity for torture in Egypt, published at the end of January 2011, which documents how President Hosni Mubarak’s government has implicitly condoned police abuse by failing to ensure that law enforcement officials accused of torture are investigated and criminally prosecuted, leaving victims without a remedy.