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"The question at hand seems relatively simple and straightforward: whether and to what extent the protection and promotion of human rights is necessary for efforts to address conflict and build peace. The issue has been much debated over time. The 1948 Universal Declaration of Human Rights forcefully associated the protection of human rights with the prevention of violent conflict, stating that 'it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law' (UN 1948, preamble). Yet in 1996, an anonymous author in Human Rights Quarterly accused the international human rights movement of prolonging the war in Bosnia Herzegovina. There, human rights activists had rejected pragmatic deals that could have ended the violence and, from hindsight, were no worse than the eventual agreement in rewarding ethnic cleansing and aggression. In that author's view, it made 'today's living the dead of tomorrow' by pursuing a perfectly just and moral peace that would bring 'justice for yesterday's victims of atrocities' (Anonymous 1996, 259). Since then, the idea that the normative nature of human rights standards may complicate the practical demands of peacemaking has been a recurrent theme in discussions on the relationship between human rights and efforts to address violent conflict. This is especially the case when the latter is conceived of in terms of conflict settlement or resolution. Questions of definitions and objectives are thus key. Also relevant are the time frame, context and level of intervention one focuses on, though few authors on the subject make this explicit. In addition, narrow perceptions and generalizations abound in this debate as people working on human rights, peace and conflict have been grouped into categories of 'human rights activists' and 'conflict resolvers' as if these were homogenous and coherent clusters of actors. In this chapter, the authoress argues that considering human rights and conflict transformation in conjunction deepens one's analysis of what is involved in moving from violence to sustainable peace. It is informed by the idea that the two fill 'gaps' in one another, in that each contributes to a better understanding of the other by highlighting elements that are relatively under-explored in the theory and practice of each separate field. For conflict transformation, which will be the main focus here, the perspective of human rights forces a greater emphasis on structural conditions, especially the role of the state, systems of governance and issues of power in generating, escalating and transforming violent conflict. Considering human rights in relation to conflict transformation, moreover, highlights the need to employ a holistic, multidimensional understanding of human rights that does not reduce them to their legal foundations. This chapter suggests that conflict transformation, because of its explicit grounding in social justice, and hence inherently normative foundation, may provide a more nuanced and fruitful conceptual space for thinking about human rights, conflict and peace than conflict resolution and conflict management. Placing constructive social change at its core, conflict transformation acknowledges the need for addressing power imbalances and recognizes a role for advocacy and the importance of voices that challenge the status quo. Its concern with direct, structural and cultural violence is thus also highly relevant from a rights perspective. In order to place these ideas in context, the chapter will briefly comment on literature that has been published on human rights and approaches for addressing conflict and building peace (section 2). Section 3 proposes a framework for understanding the relationship between human rights and conflict transformation, using the metaphor of an iceberg, with its graphic image of things visible connected to matters unseen. It also introduces four dimensions of human rights that need to be taken into account in processes to build a just and sustainable peace. Section 4 discusses some of the practical implications of adopting a human rights perspective on conflict transformation. Nepal, South Africa, and other countries where the authoress has worked over the past 15 years, are used as illustrative examples throughout sections 3 and 4. Finally, section 5 concludes and points to some areas for further research." (excerpt)

The situation in Kosovo up to 1999, and all attempts which failed in order to find a just and lasting solution for that problem, have fully justified the above criteria for a lawful humanitarian intervention which was undertaken by the NATO forces against the territory of the Federal Republic of Yugoslavia. It seems, however, that the responsible persons in the NATO were not aware of the competence of the International Criminal Tribunal for the former Yugoslavia to investigate to prosecute persons responsible for use of prohibited arms and for destruction of some objects. Some of these unlawful acts constitute grave breaches of the 1959 Geneva Conventions and violations of laws and customs of war. In these circumstances it is the legal duty of the Prosecutor to undertake an investigation. In case that he fails in his duty, there are no statutory limits in respect of the crimes provided in the Statute of the Tribunal. (SOI : SOEU: S. 98f.) + Most legal writers in their writings confuse notions of humanitarian intervention, intervention of a State in order to protect its citizens abroad and humanitarian relief. The use of force for protection of citizens abroad, when they are in immediate danger of losing their lives or suffering serious injury, can exceptionally be justified by a state of necessity as regulated in article 33 of Drafts Article on State Responsibility by the International Law Commission. Further conditions for such an intervention are provided in the wording of the US State Secretar, Daniel Webster in the Caroline case of 1837, relating to the self-defence. Actions of humanitarian relief have nothing unlawful in their character, but a question can arise of the obligation of parties to a conflict to receive and allow its distribution to a who are in need. The 1949 Geneva Conventions and the First Protocol of 1977, provide in this respect a legal obligation of all parties to internation armed conflicts. Such relief actions can be imposed as obligation to parties to internal armed conflicts as well, by UN Security Council resolutions based on Chap. VII of the UN Charter. + In the view of this author there is no rule of positive international law granting a right to foreign States to intervene by force, either in protection of their citizens, or when a humanitarian intervention is required. The matter can only be of exceptional circumstances precluding wrongfulness of the use of force, which otherwise remains prohibited. When the matter is of humanitarian intervention, circumstances precluding the wrongfulness would, according to this author, be the following: (1) There should be a situation of systematic, repeated and widespread commission of international crimes by a State authority against its own citizens. Special problems are created to the international community by widespread practices of ethnic cleansing. (2) Such a situation constitutes itself a "threat to the peace" calling for an enforcement action by the Security Council according to the Chap. VII of the UN Charter. (3) In case that the Security Council fails in its primary responsibility of maintaining international peace and security and when there are no other means, a group of States or an organization can undertake a humanitarian intervention by use of force in order to stop the commission of crimes. In these circumstances it acts as de facto organ of the entire international community of States. (4) In these extreme and exceptional circumstances, States taking part in such an action cannot obtain any advantages in their profit. (5) Collective intervention by a single State acting in the name of several other States or an organization. However, even such an intervention should have priority over humanitarian intervention undertaken by a State acting in its o name. (6) It is self-evident that in performing a humanitarian intervention there should not be committed international crimes especially against protected persons, including civilian population

In this genealogy of political modernity, Mahmood Mamdani argues that the nation-state and the colonial state created each other. In case after case around the globe—from the New World to South Africa, Israel to Germany to Sudan—the colonial state and the nation-state have been mutually constructed through the politicization of a religious or ethnic majority at the expense of an equally manufactured minority. The model emerged in North America, where genocide and internment on reservations created both a permanent native underclass and the physical and ideological spaces in which new immigrant identities crystallized as a settler nation. In Europe, this template would be used by the Nazis to address the Jewish Question, and after the fall of the Third Reich, by the Allies to redraw the boundaries of Eastern Europe's nation-states, cleansing them of their minorities. After Nuremberg the template was used to preserve the idea of the Jews as a separate nation. By establishing Israel through the minoritization of Palestinian Arabs, Zionist settlers followed the North American example. The result has been another cycle of violence. Neither Settler nor Native offers a vision for arresting this historical process. Mamdani rejects the "criminal" solution attempted at Nuremberg, which held individual perpetrators responsible without questioning Nazism as a political project and thus the violence of the nation-state itself. Instead, political violence demands political solutions: not criminal justice for perpetrators but a rethinking of the political community for all survivors—victims, perpetrators, bystanders, beneficiaries—based on common residence and the commitment to build a common future without the permanent political identities of settler and native. Mamdani points to the anti-apartheid struggle in South Africa as an unfinished project, seeking a state without a nation.