CURING HUMAN RIGHTS VIOLATIONS IN THE MIDDLE EAST USING THE PEACE OF WESTPHALIA AS A MODEL.

• Author: Namou, Kamal

1. INTRODUCTION

   1. Eastern Society v. Western Society

   In 1648, the Western World, in a symbol of camaraderie, signed a unilateral treaty to end the decades of bloodshed and religious warfare, finally finding a way out of its dark ages. (1) One may argue that the Middle East has been going through a similar era of bloodshed and religious warfare, however, any attempt to bring peace to the region has largely failed. (2) Unlawful death has devastated the Middle East ever since the West began involving themselves in Middle Eastern affairs. (3) For instance, between 2003 and 2006, about 655,000 Iraqi civilians died because of the Iraq War. (4) The Peace of Westphalia treaty created narrow and restrictive sovereignties, putting an end to rulers enforcing their beliefs upon citizens. (5) The Peace of Westphalia helped codify an international system where one authority no longer ruled over a state, rather sovereign states could now form a "political system," harmonizing international law and power. (6)

   This Note investigates how an inadequate, and suspiciously selfish stance, by the West on foreign policy may have exacerbated human rights violations in the Middle East, and examines how the Peace of Westphalia could provide an antidote. (7) Part II explains how the Middle East got to this seemingly new and never ending "thirty-years' war" within the region and discusses the efforts by Western powers to interfere in geopolitical issues--when it only benefits their own interests. (8) Part III depicts how the international law community and United Nations (U.N.) have given a pass to the United States and other Western sovereignties in their contributions to the atrocities, and how the international community can help end the bloodshed. (9) Part IV recommends the international legal community work with Middle Eastern powers by using the lessons in the Peace of Westphalia treaty in order to establish human rights by giving peace and dignity for all people in the region. (10) Part V concludes with a warning, that if these human rights violations and potential war crimes are treated passively and without a cognizant effort to correct this humanitarian crisis, the result will likely be a continuance of the growing threat to the U.N. Charter System's legitimacy and a law-governed approach to world order. (11)

2. HISTORY

   1. The Peace of Westphalia and Human Rights

      International law and current human rights affairs can trace their foundations to the Peace of Westphalia treaty. (12) In 1648 there was no international legal theory in place for deterring human rights violations. (13) The ultimate purpose of the Peace of Westphalia was to stop endless bloodshed in Europe by implementing the ideologies of religious acceptance and individual liberty, which would be left up to the new sovereign state's discretion. (14) However, the Peace of Westphalia never mentioned human rights, and instead the national sovereignty theory was officially recognized. (15) As such, victims of human rights abuses were left without any recourse beyond their state's borders. (16)

      Colonialism, imperialism, and arbitrary demarcations of land by Western powers have resulted in massive human rights violations. (17) The Westphalian system hit its peak between 1850 and 1900, at the height of said Western colonization efforts. (18) Once World War I ended in 1918, the last great effort to colonize and create sovereign nations began, and the shortcomings of the Peace of Westphalia soon became apparent. (19)

   2. The Rupture of the Ottoman Empire

      After the Allied Powers of France, Britain, Russia, Italy and Japan defeated the Central Powers of Germany, Austria-Hungary and the Ottoman Empire in 1918, the Western powers were seeking to solidify their dominance in the world. (20) As part of this venture, there was much to gain for the West by dismantling one of its largest rivals, the Ottoman Empire, and dividing the pieces amongst itself. (21) On August 10, 1920, the Treaty of Sevres was signed between the Allied Powers of the West and the Ottoman Empire to end World War I in the Middle East. (22) The legacy of Sevres is still felt in the Middle East today and the different effects it has had on each state exposes much of its failures. (23) The Middle Eastern states that ultimately had their borders drawn by Europe after WWI, were mostly weak and disorganized. (24) This volatile situation was exacerbated by the fact that the aforementioned new borders created sovereign states that gained control of many religious tribes residing in those areas--many who had never lived with one another, and worse, many that had been involved in feuds beforehand. (25)

   3. Sykes-Piscot Agreement

      The Sykes-Piscot Agreement was a treaty signed between the United Kingdom and France with approval from the Russian Empire and Italy in 1916. (26) Mark Sykes was a representative of the British Empire who negotiated with French ambassador Georges-Picot, resulting in the division of the Ottoman Empire. (27) During the negotiation process, both parties largely avoided following policy recommendations made by scholar administrators from the Middle Eastern region. (28) Eventually, the League of Nations formally recognized the borders illustrated under the Sykes-Picot Agreement. (29) Although the agreement would not create the borders we see today, there is evidence that it has had a lasting impression on those who are not fond of imperialism in the Middle East. (30)

   4. The Universal Declaration of Human Rights and the Geneva Convention

      After the international community began to recover from World War II and the Cold War ended, the United States and Western Europe began considering a post Westphalian order. (31) Beginning in 1945, the internal government mistreatment of its own citizens was recognized as an international rights law problem requiring additional regulation. (32) After the Holocaust and the mass casualties caused by the Second World War, most Western powers finally began to understand the shortfalls of the Westphalian order regarding human rights. (33)

      The result was an international reckoning for a need to hold human rights violators responsible, encapsulated in the "Universal Declaration of Human Rights" (UDHR) and Geneva Conventions. (34) The declarations included a plethora of civil, political, economic, social, and cultural rights. (35) Even though the UDHR was not a legally binding body of law, some of its provisions have become "customary international law and general principles of law." (36)

      Before long, it became apparent that topic of human rights became politicized and that the United Nations missed countless opportunities to save lives. (37) The failure of the United Nations to implement the UDHR successfully stems from its non-binding nature and the issue of cultural relativism. (38) In light of UDHR limitations, in Sosa v. Alvarez-Machain (39), the United States Supreme Court maintained that it was not possible for a foreign national to use the Alien Tort Statute to sue a United States government official for personal injury, because the arrest had taken place outside the United States. (40)

      The Geneva Convention of 1949 built on the momentum of human rights laws by establishing standards of international law for humanitarian treatment during war. (41) These conventions expounded basic rights of wartime prisoners, protected the wounded and sick from harm, and made protection for civilians in and around war-zones a fundamental right. (42) Although there were three previous Geneva Conventions, this final version brought palpable protections to civilians during war. (43) The Geneva Conventions are rules that apply only during armed conflict; and three additional protocols have been adopted since 1949. (44)

   5. The United Nations Security Council

      The United Nations Security Council is the ultimate authority for worldwide security. (45) It is responsible for keeping international peace and security through peacekeeping operations, international sanctions, and the authorization of military action between nations. (46) Almost one year after the 9/11 terrorist attacks, the United Nations Security Council met to issue Resolution 1441. (47) Iraq filed paperwork with the United Nations to declare it had met its obligations under previously issued Security Resolutions, but the United Nations could not confirm with absolute certainty that it did. (48)

   6. Mandate for Palestine and the Armistice Line in Israel

      After the Sykes-Picot agreement, the League of Nations instituted a mandate for British control of Palestine and Transjordan in 1920, which were both under Ottoman rule before World War I ended. (49) The British installed two new Kings, one in Palestine and the other in what would become Transjordan. (50)

      The British wanted to give the Jewish people a new homeland within Palestine while also controlling Palestine and Transjordan. (51) A strained relationship between the Jewish and Arab people would become commonplace moving forward. (52)

      Before World War II started, the genocide of Jewish people continued and it became understandably more difficult to control Jewish immigration from Europe into Palestine. (53) However, the British also made unkept promises with the Jewish immigrants and continuously imposed strict immigration regulations. (54) Eventually, assassinations and violence by both Jews and Arabs on British officials became commonplace and militant revolts occurred until the focus shifted to attacking immigration agents under British control. (55) This violence led to one of the first great international resolutions rendered by the General Assembly of the United Nations when it adopted a partition plan to resolve the fighting. (56)

      The Partition Plan for Palestine was unsuccessful between the Jewish and Arab communities. (57) The British Mandate for Palestine ended on May 14, 1948, and the British withdrew immediately which allowed the Zionists to declare an...