Edinburgh Napier University

  ‘Freedom makes a huge requirement of every human being,’ but the central responsibility in international human rights law is placed on the shoulders of the State to guarantee that freedom. Human rights law functions as a critical restraint on the power which may be exercised by those acting on behalf of the State and endures even in times of armed conflict. At the core of these freedoms and rights is the concept of human dignity: its ‘inherent’ nature is ‘the foundation of freedom, justice and peace in the world’ . These concepts, however, remain poetry rather than motion all too often. Despite the resilience of the existence of human rights law during armed conflict, there arise a number of legal problems with the enforcement of individual rights relating to the dignity of the individual. This is particularly problematic when the power of the State is in transition from one group of individuals to another, as this may create a gap in responsibility. The ‘Arab Spring’ of revolutionary protests, civil resistance and organised rebellion against those in power in numerous countries which count themselves as members of the Arab World raises myriad issues which relate to the rights of individuals. In particular, the rights violations reported by the media indicate breaches of both international humanitarian law, applicable during armed conflict, and breaches of fundamental human rights law norms. However the central question from a legal perspective is the attribution of responsibility for the guarantee of such rights during a period of transition from one organisational form to another. The main aim of the protests appeared to be achieving respect for the dignity of the individual, which means that legally there must be a body responsible, but which? Equally, the law of armed conflict applies to ‘parties’ to an armed conflict, but it is not clear if this would apply to all of those engaged in the fighting. It is necessary to separate out the different categories of norms and to understand which apply to situations such as this; a task which is too broad in scope for one piece of work. Instead, this work aims to be the foundation for future work in this area. As such, it has the main purpose of understanding who or what ought to bear responsibility for a failure to respect the dignity of individuals. Human rights do not generally operate in a horizontal manner; human rights obligations are not addressed to individuals. This work will undertake an analysis of the problems which arise in this respect and address a possible solution for the gap in accountability which is created by the unseating (or attempted unseating) of the public authorities in power. Do such movements represent the people more than those in power, leading to a redefinition of what a ‘State’ is? The obligations relating to dignity in international human rights law arise from a number of sources, of which treaties are only one. The majority of States from the Arab world have ratified the International Covenant on Civil and Political Rights , to give one example, which creates binding obligations on these States to honour their human rights commitments. However there are other sources of international human rights law which bind States, to which they need not openly, or even actively, consent. Might other forms of obligation bind insurgents and ‘freedom fighters’? These questions will be further analysed, separating out the numerous elements within them and dealing with the underlying questions relevant to the aim of protecting individuals from serious violations of individual dignity.

This work is divided into four parts. The first part explores the fundamental nature of the concept of dignity and the protection it attracts in international law. For the purpose of clarity, a discussion of the specific rights which should be enforceable against those in power is not put forward; this is a discourse which would follow consequentially from the conclusions reached herein. This discussion therefore centres on the sources of the concept of dignity. This includes an analysis of the obligations applying to the ‘States’ which are parties to a number of human rights law instruments, however symbolic that relationship may be, and the unique place of dignity in international law: there are no analogous limitations on State power which are imposed regardless of consent. The second part of this work then explores who ought to be responsible for the protection of the dignity of individuals. In the first part, it is acknowledged that ‘States’ are usually the parties on whom human rights obligations are binding in international law. This part will examine the forms of responsibility in international law and the adjustment of international criminal law to address individuals who may be held individually criminal responsible for serious violations of international criminal law against the person. The possibility of other groups being subjects of international law is also briefly discussed. The third part to this work deconstructs the concept of a State, as the central subject of international law, and investigates whether national liberation movements may be identified as States, which would allow them to undertake obligations in international law. The final part to this work unifies these three themes by analysing the potential of national liberation movements to be considered States, through their behaviour. The conclusions of the research will be put forward, with suggestions as to how to avoid a gap in the law during regime change, to avoid a lack of accountability at a critical point in the possible formation of a new State.