Security Tensions: national and international dilemmas in the relationship between law and security
Existing legal regimes are often portrayed as limiting the effectiveness of security responses, yet they are actually crucial forms of protection for individuals and their rights. Yet, security interests and law can clash producing tensions at the national and international level.
Current global events, such as the conflict between Russia-Ukraine, or the violence in Gaza, remind us of the centrality of security and use of force. Usually, academic and policy debates treat security policies and legal regimes as different and thus potentially clashing. Security challenges, it is said, can generate tensions with existing legal regimes. This is not a new debate debate in political science and legal studies: states have always been confronting with the question of what kind of balance to find between their security needs and existing law. So, what are the main tensions that can arise and what can we learn by looking into them?
The Balance Between Security, Politics and Law: A Long-Standing Question
One key historical moment for the relationship between law and security, traces back to the establishment of the so-called Westphalian modern state system (1648). Two principles were recognized as fundamental to the international system: the principle of state sovereignty, meaning the right of states to govern and regulate their political affairs, and the principle of non-interference, i.e. the obligation not to intervene in other states’ internal affairs. These two principles continue to impact how states, and other actors, interact with each other in the international arena, although historical events have progressively pushed for a limitation of states powers and authorities.
A challenge arose after the devastating effects and the abhorrent crimes committed by states against their own citizens during the Second World War, in primis, by Nazi Germany and Japan. This was the beginning of a new era, where a first potential tension between states’ sovereignty rights, and their responsibilities towards individuals, developed. Not only it was officially recognized that states should limit their force internationally (ius ad bellum), but the protections in conflict situations, that were already partially recognized under the umbrella of what we identify today as International Humanitarian Law (IHL), were reinforced. A specific development in this direction was the establishment of individual criminal responsibility: individuals, other than states and their representatives, are obliged not to commit international crimes and could therefore be held accountable by the international community in case of abuses (International Criminal Law).This was not all: human rights were to be protected both in conflict and peace time: International Human Rights Law (IHRL) progressively established itself as the framework for states to limit abuses regardless of the security conditions they were experiencing.
Security and Legal Regimes across National and International Politics
Each state has its own domestic political – hence legal- regime. The nature of it, however, can be very different. With an important simplification, but relevant in this debate, we could distinguish Rule by Law systems, generally autocracies and authoritarian systems and Rule of Law based systems, usually and mostly, liberal democracies. While, nationally states are still free to regulate their domestic politics, the above-mentioned regimes were used by dominant international politics to push for a limitation of power-politics by states (internationally and nationally), in the hope of creating some form of International Rule of Law. And here is another potential tension between states’ own interpretation of security and established international norms. Examples of this might concern use of force by law enforcement units, recognition or abuses of recognized human rights, or even states’ possibilities of cross-border cooperation in security affairs.
Interestingly, tensions might arise beyond the security vs. law confrontation, but also between existing legal regimes. An example is the interplay between IHRL and IHL, as they both concur in respecting human rights during armed conflicts, but IHRL also applies during peacetimes. While both of them aim to ensure basic protections against abuses and decent human treatment, they set out different rules for standards of treatment that stipulate how certain groups should be treated, which can create tensions when applied simultaneously. These tensions might, however, be addressed by looking at these legal regimes as reinforcing and complementary to each other in the attempt to maximize protection for individuals. An interesting example stems from the difficult question of children participating in armed conflicts. In IHL, it is prohibited to allow children that are below 15 years old to directly participate in hostilities. Following the 2000 Optional Protocol of Rights of the Child, it increased the age limit to 18 years old.
While human rights are established as universal, we can not forget that states still have the authority on their domestic protections, and the freedom to sign international treaties aiming at establishing these protection. They are, though, obliged to respect them once they do sign: pacta sunt servanda. When a treaty is signed, such as the Rome Statute for International Criminal Law, international obligations are expected to be implemented domestically and enforced as the rest of existing national laws. A crucial example of this is the European Convention on Human Rights. The Convention is an important instrument because it binds countries that have agreed to be accountable above their highest domestic authority, if domestic remedies have been exhausted, and beholden to the European Court of Human Rights, challenging the right of state’s to rule as absolute sovereign. Not without potential tensions.
The balance between effectively responding to security threats while protecting rights and freedoms from abuses might be a difficult one to sustain consistently. Changes within societies and unexpected security emergencies, such as terrorist attacks, might put this balance into question. Current events also display the increased relevance of private actors in the field of security, such as the now known Wagner Company, which might alter the relationship between citizens and the states, and make the protection of established rights even more complicated. More so, is ensuring that committed war crimes by all states and individuals are prosecuted, and that civilians are not subject to abuses or harm in times of emergencies and armed conflict.
All these tensions and failures might easily bring the current system into question. Yet, students, researchers, individuals should keep asking themselves: What would you like the world to do if you rights were abused in the name of security?