Revision:Human Rights
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What international mechanisms exist for upholding human rights and how effective are they?
- Human rights refers to the concept of human beings as having universal rights, or status, regardless of legal jurisdiction or other localizing factors, such as ethnicity and nationality.
- The existence, validity and the content of human rights continue to be the subject to debate in philosophy and political science. Legally, human rights are defined in international law and covenants, and further, in the domestic laws of many states.
- However, for many people the doctrine of human rights goes beyond law and forms a fundamental moral basis for regulating the contemporary geo-political order. For them, they are democratic ideals.
- Human rights abuse is abuse of people in a way that violates any fundamental human rights. It is a term used when a government violates national or international law related to the protection of human rights.
- According to the Universal Declaration of Human Rights, fundamental human rights are violated when:
- A certain race, creed, or group is denied recognition as a "person".
- Men and women are not treated as equal
- Different racial or religious groups are not treated as equal.
- Life, liberty or security of person are threatened.
- A person is sold as or used as a slave.
- Cruel, inhuman or degrading punishment is used on a person (such as torture or execution).
- Punishments are dealt arbitrarily or unilaterally, without a proper and fair trial. (Article 11)
- Arbitrary interference into personal or private lives by agents of the state.
- Citizens are forbidden to leave their country.
- Freedom of speech or religion is denied.
- The right to join a union is denied.
- Education is denied.
- Where it has been adopted, human rights legislation commonly contains:
- security rights that protect people against crimes such as murder, massacre, torture and rape
- liberty rights that protect freedoms in areas such as belief and religion, association, assembling and movement
- political rights that protect the liberty to participate in politics by expressing themselves, protesting, voting and serving in public office
- due process rights that protect against abuses of the legal system such as imprisonment without trial, secret trials and excessive punishments
- equality rights that guarantee equal citizenship, equality before the law and nondiscrimination
- welfare rights (also known as economic or social rights) that require the provision of education and protections against severe poverty and starvation
- group rights that provide protection for groups against ethnic genocide and for the ownership by countries of their national territories and resources
- As a result of the horrors of the Second World War and Holocaust the United Nations General Assembly adopted the Universal Declaration of Human Rights in 1948. While not legally binding, it urged member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world". The declaration was the first international legal effort to limit the behaviour of states and press upon them duties to their citizens following the model of the rights-duty duality.
- Many states wanted to go beyond the declaration of rights and create legal covenants which would put greater pressure on states to follow human rights norms.
- Because some states disagreed over whether this international covenant should contain economic and social rights (which usually require a greater effort to fulfil on the part of individual states), two treaties were prepared.
- In 1976, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights came into force
- With the Universal Declaration of Human Rights these documents form the International bill of rights.
- Since then several other pieces of legislation have been introduced at the international level:
- International Covenant on Civil and Political Rights (ICCPR)
- International Covenant on Economic, Social, and Cultural Rights (ICESCR)
- Convention Relating to the Status of Refugees and Protocol Relating to the Status of Refugees
- Convention on the Rights of the Child (CRC)
- Convention Against Torture (CAT)
- Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC)
- Convention on the Prevention and Punishment of the Crime of Genocide
- Convention on the Rights of People with Disabilities
- Universal Declaration of Human Rights (UN, 1948)
- American Declaration of the Rights and Duties of Man (OAS, 1948)
- Cairo Declaration of Human Rights (OIC,1990)
- With the exception of the non-derogable human rights (the four most important are the right to life, the right to be free from slavery, the right to be free from torture and the right to be free from retroactive application of penal laws), the UN recognises that human rights can be limited or even pushed aside during times of national emergency - although "the emergency must be actual, affect the whole population and the threat must be to the very existence of the nation. The declaration of emergency must also be a last resort and a temporary measure"
- Conduct in war is governed by International Humanitarian Law.
- International Humanitarian Law is the legal corpus "comprised of the Geneva Conventions and the Hague Regulations, as well as subsequent treaties, case law, and customary international law." It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.
- The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials.
- The International Covenant on Civil and Political Rights created an agency, the Human Rights Committee, to promote compliance with its norms. The eighteen members of the committee express opinions as to whether particular practice is a human rights violation, although its reports are not legally binding.
- A modern interpretation of the original Declaration of Human Rights was made in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993. The degree of unanimity over these conventions, in terms of how many and which countries have ratified them vary, as does the degree to which they are respected by various states.
- The UN has set up a number of bodies to monitor and study human rights, under the leadership of the UN High Commissioner for Human Rights (OHCHR).
- There are also many regional agreements and organisations governing human rights including:
- The European Court of Human Rights, which is the only international court with jurisdiction to deal with cases brought by individuals (rather than states)
- The African Commission on Human and Peoples' Rights
- Inter-American Commission on Human Rights
- Cairo Declaration on Human Rights in Islam
- The Inter-American Court of Human Rights.
- European Convention on Human Rights
- European Social Charter
- Human rights violations and abuses include those documented by non-governmental organizations such as Amnesty International, Human Rights Watch, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International.
- Only a very few countries do not violate human rights at all according to Amnesty International. In their 2004 human rights report, (covering 2003,) the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only (mappable) countries that did not violate human rights.
- Some people believe human rights abuses are more common in dictatorships or theocracies than in democracies because freedom of speech and freedom of the press tend to uncover state orchestrated abuse and expose it.
- Nonetheless human rights abuses do occur in democracies. For example, the Macpherson report found that the British police had been institutionally racist in the handling of the death of Stephen Lawrence.
- Amnesty International has called the running of Guantanamo Bay detainment camp by the United States "a human rights scandal" in a series of reports
- The UN is also charged with the upholding of human rights:
- According to David Whittaker, in his book UN in the Contemporary World, human rights have been promoted and protected through “Declarations, covenants and campaigns” as well as monitoring, enquiry and enforcement bodies, worldwide research and teaching and training programmes.
- Since 1945 30 million refugees, fleeing form persecution, oppression and war have been assisted and protected due to encouragement, from the UN, for states to accept and help resettle asylum seekers.
- Due to lake of funds and the relative inadequacy of the monitoring, enquiring and enforcement instruments, they have still been many atrocities against human rights, in countries such as Rwanda, which is a member of the UN. This shows that although the UN tries it has been unable to prevent these atrocities even in countries that are supposed to listen and obey the UN.
- The European Court of Human Rights, often referred to informally as the "Strasbourg Court", was created to systematize the hearing of human rights complaints from Council of Europe member states. The court's mission is to enforce the Convention for the Protection of Human Rights and Fundamental Freedoms.
Why is there more determination nowadays to uphold human rights?
- Media – can show us what is actually happening in countries with films and pictures. Increases awareness and recognition of monstrosities
- Part of the fight against poverty and for democracy. We believe they are interlinked and that we can help people by improving all three. An extension of the war on poverty another way of improving the quality of life.
- Globalisation things that happen in one place affect other places emotionally, economically and diplomatically. “By the 1990s, globally integrated markets had also led to increased emphasis on the plight of workers world-wide, such as the estimated 250 million child labourers” (David Forsythe)
- “Science and technology had produced both devastating wars and globalized markets. Following in the wake of each was a process of social globalisation, with human rights as the cutting edge” (David Forsythe)
- Blair has made it a plight
- We have come to think of them as fundamental (the non-derogable human rights)
- Another way of neo-colonialisation to enforce our own beliefs on others “Human rights was essentially a western concept, first put into widespread political and legal practice by western states. But over time and for various reasons human rights had become internationalized. Modern war, modern markets, modern repression all presented similar threats to human dignity. Human rights was widely seen as a useful means to help achieve human dignity in contemporary international relations.” (David Forsythe)
- The increased membership and awareness of pressure groups and INGOs such as Amnesty International has increased the importance of human rights and hence time spent focusing on them.
- After Rwanda we were so upset with the lack of action taken to prevent the genocide that we have placed greater importance on human rights with the hope of preventing such a man-made horror from happening again
- MEDCs better situation and growing importance domestically of human rights means that the people believe that it should be the same everywhere
- Ability – politically and financially
- Guess the answer to this would basically be because there is greater awareness of human rights abuses. This could be because of the media which reports on such matters, or because of the work of organisations such as Amnesty, or key individuals like Blair and the more "ethical dimension" to New Labour's policy. You could probably talk about the G8 summit and how this brought attention to the problems we face so that human rights moved to the top of the political agenda.
- Also, it's probably due to the fact that human rights are now increasingly accepted as something worth protecting. They are rights instead of privileges. You could cite the fact that the UN now talks about the "responsibility to protect" as well its original function of "upholding international peace & security," so intervention is arguably seen as legitimate for humanitarian reasons.
Are war crimes trials effective?
- Established by the UN to complement the ICJ
- International war crimes tribunals are courts of law established to try individuals accused of war crimes and crimes against humanity.
- Despite the often heinous nature of the crimes that individuals commit during intractable conflicts, including genocide, torture, and rape, it has become common practice to offer the accused an opportunity to explain his or her actions in front of the victims and their families, as well as the media.
- Following a conflict, crimes that have exceeded the normal parameters of war behaviour must be dealt with before a society can begin the peace building process of reconciliation.
- The democratic, progressive success of both nations following these tribunals is often given as evidence of the effectiveness of war crimes tribunals in helping a society that has perpetrated war crimes to return to stable diplomatic relations and the road to peace.
- One of the arguments in support of war crimes tribunals is that they act as a deterrent to potential war criminals. In fact, this idea is one of the main arguments behind a push to construct a permanent international war crimes tribunal. Currently, tribunals have to be sponsored by an organization like the U.N. or a national government. Without a permanently-established war crimes court, military and government leaders may feel emboldened to commit crimes such as the mass murder of ethnic groups in East Timor in the 1980s and 1990s, or in Rwanda in 1994.
- War crimes tribunals offer a rare chance for the world's leaders and citizens to scrutinize both the deplorable decisions made by particular leaders, and the atrocities committed by the soldiers and agents of those leaders. Without such a forum, there would be no method for assuring that the masterminds and perpetrators of genocide and other war crimes are justly punished.
- Tribunals also give victims and their families an opportunity to regain a sense of power that may have been lost resulting from a war crime. It is empowering for victims to stand up in a court of law and identify those who wronged them.
- A war crimes tribunal can also force forgotten or hidden atrocities to be retold by survivors. In this way war criminals living free of judgment are finally forced to accept responsibility for their actions and be judged for what they have done.
- For a country attempting to make a transition from a repressive regime to a democracy, war crimes tribunals offer citizens and leaders the opportunity to put their faith in an equitable rule of law. Countries that truly wish to become modern democracies must accept the rule of democratic law and apply it to even their most powerful criminals.
- While this process takes an enormous effort of national will, nations that successfully conduct tribunals within the bounds of such laws prove they can function without reverting to the undesirable methods of repression and violence.
- Thus war crimes tribunals have the potential to help emerging democracies discover the benefits of a strong legal system while reconciling past atrocities.
- Finally, if all members of a society can agree upon what is unacceptable by trying its war criminals, then it is easier for the society to agree on what is acceptable. A successful war crimes tribunal allows the past to be laid to rest and a peaceful future forged from its results.
- Many argue that war crimes tribunals offer no deterrent to potential criminals whatsoever. People with strong convictions against a certain religious or ethnic group will likely not feel any less hatred for that group just because a possible tribunal looms in the future. Both Hitler and Pol Pot believed they would be revered by future generations for the extreme measures they took to change the makeup of their societies. These leaders were inspired by their visions of the future and it is unlikely the prospect of a war crimes tribunal would have swayed either dictator.
- In fact, another argument against tribunals is that men like Hitler and Pol Pot, the leaders of violent movements, are never judged by tribunals for what they do. A war crimes tribunal that tries only middle ranking officers, soldiers, and politicians is not as effective as one that tries the mastermind behind the crimes.
- Although the Iraq Tribunal tries the mastermind many are angry that not all his crimes will be put before the court, and see it as injustice, as only a very small amount will be ruled upon. The families of other victims see it as unjust and that crimes against them are in effect going unpunished.
- Another criticism of war crimes tribunals is that they do not alleviate the underlying causes of the conflict. In fact, tribunals can escalate conflict, especially in a multi-ethnic society. In cases of genocide, those accused of war crimes are usually all from one ethnic group. To this group, a war crimes tribunal can appear to be a trial against their ethnicity, not just an individual from their group. This is especially true when the judicial system fails to fairly represent the whole society. For example, Rwandan Hutus accused of killing Tutsis would doubt in the possibility of a fair trial if only Tutsis were running the tribunal. Other Hutus, including those not accused, would likely feel the same way. Thus the war crimes tribunal could act as a wedge driving the two groups further apart.
- Possibly the most powerful argument against war crimes tribunals is that they offer only the victors justice. What was most obviously missing following World War II was not Hitler at Nuremberg, but a trial for Americans, French, British, and Russian individuals who committed acts that would have been considered war crimes had the Allies lost the war. The fire bombing of Dresden and the use of atomic weapons on Hiroshima and Nagasaki are clear examples of acts for which Allied leaders would have been tried had the war ended in favour of the Germans and Japanese. While it is easy and satisfying to put the enemy in prison for what he or she has done, it does not seem entirely fair if all those who participate in a war are not held to the same standards.
- Whatever the truth about globalisation and sovereignty, War Crimes Tribunals do not standardise justice. They are nothing more than victors’ justice and arbitrary, victors’ justice at that. This undermines international law with its ad hoc arbitrariness.
- Marc Cogen, a professor of international law at Ghent University in Belgium, says that measured against the standards of the Nuremberg Trials, which successfully convicted many leading architects of the Nazi regime in Germany, modern war crimes tribunals fall short. "[It] is unfortunately true, not only for the War Crimes Tribunal for the Former Yugoslavia but also for the Rwanda Tribunal," he says. "Both international tribunals …disappoint because they do not deliver their judgments in a timely manner.".
- Cogen says that, if it appears a case will drag on for several years, then prosecutors are not serving the interest of justice -- or the defendant -- by folding all the indictments into one trial.
- "We should split the case into a series of cases because as long as you are not convicted, you are just accused of something. This is a matter of a fair justice system," says Cogen.
- Ironically, that is what prosecutors at the much-criticized trial of Saddam Hussein in Baghdad have attempted to do, initially trying the former dictator on charges related to a single massacre.
- War crimes tribunals:
- Milosevic – The Hague Feb 2002. Milošević was found dead in his cell on March 11, 2006 in the UN war crimes tribunal's detention centre, The reactions to the death were mixed: officials and sympathisers of the ICTY Prosecution lamented what they saw as Milošević's having remained unpunished, while opponents, mostly Serbian and Russian figures, stressed what they viewed as the responsibility of the Tribunal for what had happened.
- Saddam- Iraqi special tribunal 2004. On May 15, 2006, over two years since his initial capture and arrest, Saddam Hussein was formally indicted for crimes against humanity. He refused to plead, stating, "This is no way to treat the president of Iraq."
Rwanda-
Comments
These notes are aimed at people studying for Edexcel A Level Politics, module 5.
Originally submitted by joker13na on TSR Forums.
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