It has become clearer since the start of the Great Power adventurism that produced in the late 20th century the numerous states sundered out of Yugoslavia (itself a construct cobbled together in the early 20th Century by a coterie of predecessor Great Powers), that law has become an instrumental framework through which violent conflict is managed. While the ultimate aim of such management is the eradication of violent conflict altogether and the substitution of others forms of violence less ostentatiously gruesome), it has, in the present day, the more modest aim of preserving intact the productive elements of human society for the exploitation of the winner of any such violent conflict. Backer, Larry Catá, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, 21(3) Penn State International Law Review 509-567 (2003) ("the idea of the individual as independent actor, has led to the application of the fuhrer principle in the production of the emerging global principles of human rights spreading a cloak of protection around communities of individuals for communal acts. The individual. as independent actor, has given rise to a cult of individual responsibility for political acts, the responsibility for which once rested with the political community in whose name the acts were perpetrated." Id., at 524. "The punishment for infractions by a political community, especially against another community, is borne by the leader as proxy for the community. The doctrine of personal responsibility for communal acts is thus an inversion for the protection of the community." Id., at 535). And so, conflict is managed by minimizing the harm to the productive sectors, and by shifting responsibility onto the bodies of physical combatants.
This notion, written into the heart of international humanitarian law, has been evidenced of late in the conflict over the mastery of the Island of Ceylon. That conflict pits two ethnic elites in a violent contest for mastery of the Island or portions thereof. On the one hand, the majority Sinhalese population, constituted as the Republic of Sri Lanka has been battling the Tamil minority, whose elites have sought to constitute themselves as a separate Republic on the Island--and came very close to the realization of that goal a decade ago before a string of military reversal has led to their defeat in the last several weeks--leaving them where they began in violent acts of separatist terror. But in the course of that great violent contest for control, both sides have appeared to violate the nearly engorged rules of engagement by interfering with the welfare of the prize of the conflict between them--the civilian population of the Island.
And so it is that the United Nations, through its highest ranking human rights bureaucrat, Naventhem (Navi) Pillay of South Africa, the U.N. High Commissioner for Human Rights, has
And thus the consequences, a game with rules overseen by officials presiding over contests in which the competing teams battle within the confines of detailed laws of play--a juristic and legalistic overlay to what had been chaotic and uncontrolled contests. Management requires confinement to a pitch, the governance of rules and oversight. And who better for the elaboration of this understanding of the new realities of conflict than lawyers and judges. The current High Commissioner is well suited to this role. "More recently, Ms. Pillay has served as a judge on two of the most important international criminal courts in the modern era, spending eight years with the International Criminal Tribunal for Rwanda, including four years as its President, and then the past five years on the International Criminal Court in the Hague. Both of these courts deal with the extreme end of the human rights spectrum -- war crimes, crimes against humanity and genocide, and are at the cutting edge of the development of international law in these areas." United Nations Human Rights, Office of the High Commissioner for Human Rights, Navanethem Pillay confirmed as new High Commissioner for Human Rights. A jurist's perspective, a lawyer's sensibility, and a bureaucrat's sense of order and management of assets are precisely what is now called for in the management of conflict. The object is not political--it is likely that the United Nations and its organs are essentially indifferent as to the outcome of the conflict between Sinhalese and Tamil--but managerial, focused on the preservation of the objects over which the protagonists engage in violence. These assets are viewed as passive and reactive. These objects of humanitarian law are thus constituted as a legal fiction--neither a part of the conflict, nor vested with a particular interest in or power to participate in the outcome, but rather the prize over which the conflict is fought.
States seeking to engage in conflict--whether against internal or external enemies will have to deal with this emerging framework more intensely in the years to come. No longer confined to dependent states or regions that had been the playgrounds of Great Powers, the managerial war, the protection of the prizes of conflict, the new juridical basis of the management of violence, will touch all conflicts in which states use violence as a means to manage opposition. And the referees are not the organs of state power, but elements of international political and civil society that will assume a greater role in the monitoring, reporting, assessment, judgment and punishment of states (and their leaders) who fail to obey the rules and mismanage their violence. See, e.g., Opiyo Oloya, Omar Bashir's Indictment is a Writing on the Wall, The New Vision (Uganda), March 10, 2009 ("By issuing the arrest warrant for Bashir, the ICC is flexing its muscles and telegraphing its jurisdiction over the conduct of sitting heads of state. In effect, the ICC is saying, “We are willing to take on anyone, head of state or not, who is suspected of perpetrating crimes against humanity.” . . . . He is a wanted alleged criminal with blood on his hand. He cannot be seen, heard or even accepted among leaders of free nations. Indeed, with time, the chorus of support for the Sudanese leader heard in many African capitals last week will quietly die away, replaced by polite avoidance.").
This notion, written into the heart of international humanitarian law, has been evidenced of late in the conflict over the mastery of the Island of Ceylon. That conflict pits two ethnic elites in a violent contest for mastery of the Island or portions thereof. On the one hand, the majority Sinhalese population, constituted as the Republic of Sri Lanka has been battling the Tamil minority, whose elites have sought to constitute themselves as a separate Republic on the Island--and came very close to the realization of that goal a decade ago before a string of military reversal has led to their defeat in the last several weeks--leaving them where they began in violent acts of separatist terror. But in the course of that great violent contest for control, both sides have appeared to violate the nearly engorged rules of engagement by interfering with the welfare of the prize of the conflict between them--the civilian population of the Island.
And so it is that the United Nations, through its highest ranking human rights bureaucrat, Naventhem (Navi) Pillay of South Africa, the U.N. High Commissioner for Human Rights, has
expressed her growing alarm Friday at the increasing number of civilians reported killed and injured in the conflict in northern Sri Lanka, and at the apparent ruthless disregard being shown for their safety. "Certain actions being undertaken by the Sri Lankan military and by the LTTE may constitute violations of international human rights and humanitarian law." Pillay said. "We need to know more about what is going on, but we know enough to be sure that the situation is absolutely desperate. The world today is ever sensitive about such acts that could amount to war crimes and crimes against humanity." United Nations, High Commissioner for Human Rights, Press Release, Serious violations of international law committed in Sri Lanka conflict: UN human rights chief, March 13, 2009.With the threat comes the the managerial solution in two parts. First, of course, the proteciton of the assets that are the object of the conflict, the civilian wealth producing population. "The High Commissioner called on both the Sri Lankan Government and the LTTE to immediately suspend hostilities in order to allow the evacuation of the entire civilian population by land or sea." Serious violations of international law committed in Sri Lanka conflict: UN human rights chief, supra. Second, the acceptance of outside referees for the conflict, empowered to act much like referee officials on the football pitch. "She also urged the Sri Lankan Government to grant full access to UN and other independent agencies to allow an accurate assessment of the human rights and humanitarian conditions in the conflict zone." Id. Thus, the operational face of managerialism--close scrutiny of the conflict by outsiders empowered to call violations of the rules and assess penalties.
And thus the consequences, a game with rules overseen by officials presiding over contests in which the competing teams battle within the confines of detailed laws of play--a juristic and legalistic overlay to what had been chaotic and uncontrolled contests. Management requires confinement to a pitch, the governance of rules and oversight. And who better for the elaboration of this understanding of the new realities of conflict than lawyers and judges. The current High Commissioner is well suited to this role. "More recently, Ms. Pillay has served as a judge on two of the most important international criminal courts in the modern era, spending eight years with the International Criminal Tribunal for Rwanda, including four years as its President, and then the past five years on the International Criminal Court in the Hague. Both of these courts deal with the extreme end of the human rights spectrum -- war crimes, crimes against humanity and genocide, and are at the cutting edge of the development of international law in these areas." United Nations Human Rights, Office of the High Commissioner for Human Rights, Navanethem Pillay confirmed as new High Commissioner for Human Rights. A jurist's perspective, a lawyer's sensibility, and a bureaucrat's sense of order and management of assets are precisely what is now called for in the management of conflict. The object is not political--it is likely that the United Nations and its organs are essentially indifferent as to the outcome of the conflict between Sinhalese and Tamil--but managerial, focused on the preservation of the objects over which the protagonists engage in violence. These assets are viewed as passive and reactive. These objects of humanitarian law are thus constituted as a legal fiction--neither a part of the conflict, nor vested with a particular interest in or power to participate in the outcome, but rather the prize over which the conflict is fought.
States seeking to engage in conflict--whether against internal or external enemies will have to deal with this emerging framework more intensely in the years to come. No longer confined to dependent states or regions that had been the playgrounds of Great Powers, the managerial war, the protection of the prizes of conflict, the new juridical basis of the management of violence, will touch all conflicts in which states use violence as a means to manage opposition. And the referees are not the organs of state power, but elements of international political and civil society that will assume a greater role in the monitoring, reporting, assessment, judgment and punishment of states (and their leaders) who fail to obey the rules and mismanage their violence. See, e.g., Opiyo Oloya, Omar Bashir's Indictment is a Writing on the Wall, The New Vision (Uganda), March 10, 2009 ("By issuing the arrest warrant for Bashir, the ICC is flexing its muscles and telegraphing its jurisdiction over the conduct of sitting heads of state. In effect, the ICC is saying, “We are willing to take on anyone, head of state or not, who is suspected of perpetrating crimes against humanity.” . . . . He is a wanted alleged criminal with blood on his hand. He cannot be seen, heard or even accepted among leaders of free nations. Indeed, with time, the chorus of support for the Sudanese leader heard in many African capitals last week will quietly die away, replaced by polite avoidance.").
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