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Ethnic Conflict and International Law : Group Claims and Conflict Resolution Within the International Legal System

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Ethnic Conflict and International Law : Group Claims and Conflict Resolution Within the International Legal System Zurich Open Repository and Archive University of Zurich Main Library Strickhofstrasse 39 CH-8057 Zurich www.zora.uzh.ch Year: 2006 Ethnic conflict and international law : group claims and conflict resolution within the international legal system Kempin Reuter, Tina Posted at the Zurich Open Repository and Archive, University of Zurich ZORA URL: https://doi.org/10.5167/uzh-163530 Dissertation Published Version Originally published at: Kempin Reuter, Tina. Ethnic conflict and international law : group claims and conflict resolution within the international legal system. 2006, University of Zurich, Faculty of Arts. Ethnic Conflict and International Law Group Claims and Conflict Resolution within the International Legal System Abhandlung zur Erlangung der Doktorwürde der Philosophischen Fakultt der Universitt Zürich vorgelegt von Tina empin von Mnnedorf und Uetikon ZH Angenommen im Wintersemester 2006/2007 auf Antrag von Herrn Prof. Dr. urt R. Spillmann und Herrn Prof. Dr. Daniel Thürer. Studentendruckerei Zürich. 2006 Table of Contents Acknowledgments..........................................................................................................................iii Abbreviations..................................................................................................................................iv List of Tables ..................................................................................................................................vi Introduction ...............................................................................................................1 1. Ethnic Conflict: Definitions and Concepts......................................................... 15 1.1 What is an Ethnic Group? ......................................................................................15 1.1.1 Definition of Ethnic Groups in Ethnic Conflict Research ........................16 1.1.2 An International Legal Approach to Defining Ethnic Groups .................22 1.2 What is Ethnic Conflict? .........................................................................................30 1.2.1 Origin and Causes of Ethnic Conflict ...........................................................32 1.2.2 The Character of Ethnic Conflict...................................................................41 1.2.3 The Regional and International Context of Ethnic Conflict......................44 1.3 Conclusion..................................................................................................................48 2. The International Legal Context of Ethnic Conflict: A Human Rights Approach 51 2.1 The Justification of the Protection of Ethnic Groups in International Law....51 2.2 International Human Rights Law and Ethnic Conflict .......................................53 2.2.1 State Sovereignty and the Right to Self-Determination ..............................55 2.2.2 The Concept of Minority Rights ....................................................................63 2.3 Conclusion..................................................................................................................74 3. Dealing with Claims of Ethnic Groups in International Law ............................77 3.1 Protection...................................................................................................................78 3.1.1 Existence............................................................................................................78 3.1.2 Equality and Non-Discrimination..................................................................84 3.1.3 Identity and Culture..........................................................................................89 i 3.2 Empowerment...........................................................................................................92 3.2.1 Participation.......................................................................................................92 3.2.2 Autonomy and Power-Sharing .......................................................................95 3.2.3 Secession and Independence.........................................................................102 3.3 Conclusion................................................................................................................110 4. Ethnic Conflict Resolution within the International Legal System ..................113 4.1 Ethnic Conflict Resolution and Human Rights Activities ................................115 4.2 UN Institutions and Instruments Dealing with Ethnic Conflict .....................125 4.2.1 Prevention of Violent Ethnic Conflict ........................................................127 4.2.2 Dealing with Ethnic Violence and Violations of Human and Minority Rights..............................................................................................131 4.2.3 Negotiations and Written Agreements ........................................................142 4.2.4 Post-Conflict Reconstruction........................................................................148 4.2.5 Accountability and Transitional Justice .......................................................156 4.3 Conclusion................................................................................................................160 5. Toward Dealing Effectively with Ethnic Conflict through International Legal Instruments and Institutions................................................................................. 167 5.1 Legal Measures.........................................................................................................168 5.2 Political Measures....................................................................................................173 5.2.1 The Establishment of a UN Force...............................................................175 5.2.2 A Special Body for Minorities.......................................................................181 5.2.3 Positive Incentives..........................................................................................185 5.3 Conclusion................................................................................................................187 Conclusion ..............................................................................................................191 Bibliography........................................................................................................... 199 ii Acknowledgments I would like to thank Prof. Kurt R. Spillmann and Prof. Daniel Thürer for their support and open-mindedness. Further thanks go to people affiliated with the Solomon Asch Center Center for Study of Ethnopolitical Conflict, University of Pennsylvania, for their hospitality and support in 2005/2006. Special thanks go to Prof. Brendan O’Leary, Roy Eidelson, Jena Laske, Tristan Mabry, Prof. Clark McCauley, and Prof. William Burke-White. I am very thankful to Nuwan Jayawickreme for proof-reading the manuscript and commenting on my work. Financial support has been given by the Forschungskredit der Universität Zürich. I am most grateful to my parents, Horst and Heidi Kempin, who have given me every possible support. It would not have been achievable to conduct this study without their assistance. Thanks also go to my immediate family, Katrin and Peter Kempin, for their encouragement. Special thanks go to Kasey Reuter for his support and forbearance during the last months of research. Philadelphia, June 2006 Tina Kempin iii Abbreviations CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CEDAW Convention on the Elimination of Discrimination against Women CERD Committee on the Elimination of Racial Discrimination CHR Commission on Human Rights COE Council of Europe CRC Convention on the Rights of the Child CSCE Conference for Security and Co-operation in Europe DPKO Department of Peacekeeping Operations DRC Democratic Republic of the Congo EC European Community ECHR European Convention on Human Rights and Fundamental Freedoms ECOSOC Economic and Social Council EU European Union EUFOR European Union Force in Bosnia and Herzegovina HCNM OSCE High Commissioner on National Minorities HRC Human Rights Committee ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia ILO International Labour Organization KFOR Kosovo Force LRA Lord’s Resistance Army NATO North Atlantic Treaty Organization iv NGO(s) Non-governmental Organization(s) OHCHR Office of the High Commissioner for Human Rights OSCE Organization for Security and Co-operation in Europe PCIJ Permanent Court of International Justice SA Special Advisor SFOR Stabilization Force in Bosnia and Herzegovina (NATO) SR Special Rapporteur SRSG Special Representative of the Secretary-General UDHR Universal Declaration of Human Rights UK United Kingdom of Great Britain and Northern Ireland UN United Nations UNESCO United Nations Educational, Scientific and Cultural Organization UNGA United Nations General Assembly UNICEF United Nations Children’s Fund UNMIK United Nations Interim Administration Mission in Kosovo UNSAS United Nations Stand-by Arrangements System UNSC United Nations Security Council
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