The Pitfalls of Lawlessness: Disorder, Emergencies, and Conflict

Feb 2005

This paper examines the issues of disorder, emergency, and conflict and their management in a rule of law-based framework, with illustration from the aftermath of the September 11, 2001 attacks on the United States and the war in Iraq. Noting that the promotion of the rule of law by state institutions has decreased in recent years, the paper postulates that the manifestation of violence as a result of sociopolitical unrest and armed conflict, whether domestic or international, is an indicator of a defective functioning of institutions, and that the maintenance and strengthening of the rule of law at all times are key to an effective enjoyment of human rights and to the practice of democracy. The paper notes that there exist a number of distinct corpora of rules in international and domestic law that are applicable to an orderly, efficient, and rights-respecting management of disorder. In particular, it calls for a symbiotic application of international humanitarian law and international human rights law. Whereas the latter is a general law which is implemented at all times, the former is a special branch of law that to be only enacted during conflicts. Yet, though clearly different, the two bodies overlap, particularly in times of emergency as both seek to protect human dignity and reduce human suffering. Clarifying the core connections and establishing an explicit recognition of the international human rights normative framework and humanitarian values to democracy is particularly called for in times of emergency. The typical state response to internal disorder is to enforce stricter interpretations of security laws, assert the power of the state government, and enact emergency legislation meant to facilitate investigation and prevention of violent emergencies. In that respect, the paper places emphasis on the existence of legal limits to emergency powers noting the extent to which derogation is codified formally. Similarly, the paper argues that legitimacy of the power to compel is a fundamental component of the rule of law, particularly in situations where institutions are failing. The practical result, during emergencies, is that no room is provided (or no longer available) for the articulation of citizens’ aspirations as no structural accountability derivative of democratic dynamics is present. In times of crisis and social disorder, dangers to the effective enjoyment of rights can originate (i) in the context of the implementation of derogation to rights, (ii) in the process of the administration of justice, or (iii) in the course of the enforcement of security laws. Limiting the effect of emergency powers and delineating clearly permissible derogations, so that the state of emergency is regarded as a temporary situation and not a norm, is a central aspect of the regulation of societal disorder processes. During emergencies, particular attention should also be paid to the administration of justice, which can come to suffer from degraded or weakened institutions. The modus operandi is the perpetuation of effective and justiciable remedies under the umbrella of a constitution incorporating the principles of international human rights and freedoms.