Side story on the recent gun spree

[jmm99]

We now turn to a subject discussed often enough at SWC, especially in the context of Africa.

We start with Kopel et al., Is Resisting Genocide a Human Right ? (Notre Dame Law Review, vol. 81:4, 2006):

Abstract:

Closely examining the Darfur, Sudan, genocide, and making reference to other genocides, this Article argues that the genocide prevention strategies which are currently favored by the United Nations are ineffective. This Article details the failures of targeted sanctions, United Nations peacekeepers, and other anti-genocide programs. Then, this Article analyzes the Genocide Convention and other sources of international human rights law. Because the very strong language of the Genocide Convention forbids any form of complicity in genocide, and because the Genocide Convention is jus cogens (meaning that it prevails over any conflicting national or international law), this Article concludes that the Genocide Convention forbids any interference, including interference based on otherwise valid laws, against the procurement of defensive arms by groups which are being victimized by genocide.

Without even reading the article (or abstract), I would have thunk that the answer to the question "Is Resisting Genocide a Human Right ?" would be "yes". But, I would have been wrong - at least so far as the UN is concerned.

We turn to Barbara Frey, Special Repporteur, Prevention of human rights violations committed with small arms and light weapons (2006):

II. THE PRINCIPLE OF SELF-DEFENCE WITH REGARD TO HUMAN RIGHTS VIOLATIONS COMMITTED WITH SMALL ARMS AND LIGHT WEAPONS

19. This report discusses and recognizes the principle of self-defence in human rights law and assesses its proper place in the establishment of human rights principles governing small arms and light weapons.[13] Those opposing the State regulation of civilian possession of firearms claim that the principle of self-defence provides legal support for a “right” to possess small arms thus negating or substantially minimizing the duty of States to regulate possession.[14] The present report concludes that the principle of self-defence has an important place in international human rights law, but that it does not provide an independent, legal supervening right to small arms possession, nor does it ameliorate the duty of States to use due diligence in regulating civilian possession.

[13] Because of the severe limits on space and the breadth of issues that need to be covered in this study, the author does not attempt here to undertake a full legal discussion of the principle of self-defence in international law. For an authoritative discussion of this complex topic, see Antonio Cassese, International Criminal Law (2003). In addition, the legal concepts discussed herein assume a non-conflict setting. Situations of mass human rights abuse and armed conflict involve international humanitarian law and security law principles that require an extended if not completely separate set of legal and policy considerations. For the Special Rapporteur’s findings and recommendations regarding role of small arms and light weapons in violations of human rights and international humanitarian law in armed conflict, see her progress report (E/CN.4/Sub.2/2004/37).

[14] David Kopel, Paul Gallant, and Joanne Eisen, “Is Resisting Genocide a Human Right?” Notre Dame Law Review, vol. 81, No. 4 (2006), p. 1 (“… The Universal Declaration of Human Rights affirms the existence of a universal, individual right of self-defense, and also a right to revolution against tyranny … Taken in conjunction with Anglo-American human rights law, the human rights instruments can be read to reflect a customary or general international law recognizing a right of armed resistance by genocide victims”.).

A. Self-defence as an exemption to criminal responsibility, not a human right

20. Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. Self-defence is a basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another.

Thus, the Kopel position is expressly quoted and rejected by Ms Frey.

Instead, she invokes the "protective State" - no surprise:

41. States must take effective measures to reduce the need for people to arm themselves by ensuring an atmosphere of public safety supported by law enforcement that is committed and trained to protect the rule of law and to prevent illegal acts.

42. States must also take effective measures to minimize violence carried out by armed private actors. States are required to enforce criminal sanctions against persons who use arms to violate the law. States are further required, under the principle of due diligence, to prevent small arms from getting into the hands of those who are likely to misuse them. Under the due diligence standard, international human rights bodies should require States to enforce a minimum licensing standard designed to prevent small arms from being used by private actors to violate human rights.

43. Other effective measures consistent with due diligence include the prohibition of civilian possession of weapons designed for military use; the sponsoring of effective amnesty programmes to decrease the number of weapons in active use; requirement of marking and tracing information by manufacturers; and incorporation of a gender perspective in policies regarding small arms. States have an affirmative duty under international human rights law to protect groups that are most vulnerable to small arms misuse, including victims of domestic violence.

To advance these objectives, we have "The Checklists" (pp.22-41) - they are the laws that Ms Frey wants to be in effect. They are remarkably similar to "gun control" measures suggested in the US.

I don't think these differences (illustrated by Kopel and Frey) can be bridged: A "right" is too much different from a "privilege"; a "duty" is too much different from a "choice".

Regards

Mike