POLS413 CONTEMPORARY HUMAN RIGHTS
Lecture One
• Content
• Introduction
• Key questions
• Philosophical foundations
• Brief History
• Key documents
• Introduction 1/2
• Modern international human rights practice dates from the adoption in 1948 of the Universal Declaration of Human Rights (UDHR).
• After the tragedy of the second world war UDHR established global standards by listing 30 rights on how people should be treated.
• But the declaration is neither an end point in our battle for universal human rights nor it is the first one.
• Introduction 2/2
• In this lecture we will address two key introductory issues in this regard.
• Firstly, the long prehistory in the international system of Europe and the Atlantic that resulted in UDHR.
• Secondly, we will debate the origin of human rights.
• Lets start with some questions...
• What is a right?
• What does it mean to have a right?
• Who grants you these rights?
• How are being human and having rights related?
• Do you know your rights?
• Are these rights universal?
• How does human rights “work”?
• Next weak please bring the relevant charter of your states constitution!
• Philisophy
But which individuals should have recognized rights (women, racial minorities, gays, members of certain political groups?),
Who else besides individuals have rights (animals, human groups, which groups?),
Should rights go beyond traditional civil and political rights (socio-economic rights, cultural rights, solidarity rights to peace, or economic development, or a healthy environment?),
Where do rights originate (god, natural law, human construction?).
What is the best way to implement them (courts, extra-judicial policy, private action, education?).
• Philosophical Beginnings 1/2
• Right in English, and also in several other languages, has two central moral and political senses: rectitude and entitlement.
• In the sense of rectitude, we speak of “the right thing to do”, of something being right (or wrong).
• In the narrower sense of entitlement, we speak of someone having a right.
• Rights create a field of rule-governed interactions. This fields centred on, and under the control of, the right holder (Donnelly 2013).
• Philosophical Beginnings 2/2
• Claiming a right can “make things happen” (Feinberg 1980:150 as quoted by Donnelly 2013).
• In other words, “A has a right to X (with respect to B)”
Here, A is the right-holder
X is the object of the right
B is the duty-bearer
• When A exercises her right, she activated B’s obligations, with the aim of enjoying the object of her right (Donnelly 2013).
• What is the foundation of human rights?
• Legal rights have the law as their course. Contracts create contractual rights. However, what gives legitimacy to laws regarding human rights?
• Throughout history, this question is answered differently;
- Historically, most human rights advocates and declarations for example, both Locke and the American Declaration of Independence appealed to divine donation: “we have all been endowed by our Creator with certain inalienable rights” (Donelly 2013) -Do you have a proof?
- Basic human needs as well, have often suggested as an objective foundation. -If it is needs why being loved is not part of this?
- But UDHR makes an apparently foundational appeal to “the inherent dignity... or all members of the human family”
• What is the foundation of human rights?
So, to understand the source of human rights we must turn to philosophy.
Accordingly, “the source of human rights is human’s moral nature, which is only loosely linked to the “human nature”” and “human needs”.
Therefore human rights are neither endowed by a creator nor simply about humans basic needs!
Human rights are “needed” not for a life but for a life of dignity.
• In other words, “Having a right to x means, those with access to x will live richer and more fully human lives. Conversely, those unable to enjoy their human rights will to that extend be estranged from their moral nature” (Donnelly 2013)
• What is the foundation of human rights?
• Human rights provide both substantive model for and a set of practices to realize their work of self creation.
• Universal Declaration of Human Rights, specifies minimum conditions for a dignified life, a life worthy of human being.
• In this sense, human rights demand the social change, required to realize the underlying moral vision of human nature.
• Human rights can be seen as self-fulfilling moral prophecy. “Treat people like human beings and you will get truly human beings” (Donelly 2013:16).
• This is a forward-looking moral vision of human nature.
• To conclude on the foundations
• “Human rights are widely considered to be those fundamental moral rights of the person that are necessary for a life with human dignity” (Forsythe, 2006:3).
• Ideological Stance
• Human Rights widely considered to be a Western construction.
• According to the dominant Western opinion, individuals have rights that public authority must respect. They are to be written into law and defended via independent courts.
• This position naturally suggests human autonomy and rationality, which is a stance widely supported by Liberalism.
• Ideological Stance
• The core idea of liberalism centres on respect for personal moral rights, based above all on the equal worth of the individual, whose preferences should be followed in the public domain.
• Classical liberals emphasize the necessity of all legal rights, independent court judgments, and peaceful policy making.
• History of Human Rights
• Introduction
• In modern times, it was in the West that individuals were first said to be entitled to fundamental personal rights, giving rise to institutionalized claims that public authority had to respect them.
• Many cited American and French revolutions of the eighteenth century as the first incidents that promoted shared human rights for all.
• However the battle for individual’s rights begun much earlier than that.
• History: Key Documents
• Magna Carta, 1215
• Bill of Rights (UK), 1689
• Declaration of Independence (American)- 1776
• The Constitution of the United States of America (1787) and Bill of Rights (1791)
• Declaration of the Rights of Man and of the Citizens, 1789
• Declaration of Rights of Women and Female Citizens, 1791
• Magna Carta
• The Magna Carta, or “Great Charter,” pioneered the development of constitutionalism, limiting the monarchical power and granting political rights to country’s elites.
• The document was born out of country’s royals’ discontent of the Kings power and demands. In 1215, after King John of England violated a number of ancient laws and customs by which England had been governed, his subjects forced him to sign the Magna Carta, which enumerates what later came to be thought of as human rights.
• It was arguably the most significant early influence on the extensive historical process that led to the rule of constitutional law today in the English-speaking world.
• Magna Carta
• The Charter defined the formal relationship between the king and the barons, guaranteeing their rights and also formalizing the legal and judicial procedures of the realm.
• The Charter contains the first really firm commitment to the concept of due process with the guarantee that:
‘No free man shall be arrested or imprisoned or diseased or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.’
• Magna Carta
• Among these right was also the right of the church to be free from governmental interference, the rights of all free citizens to own and inherit property and to be protected from excessive taxes.
• It established the right of widows who owned property to choose not to remarry, and established principles of due process and equality before the law. It also contained provisions forbidding bribery and official misconduct.
• Widely viewed as one of the most important legal documents in the development of modern democracy, the Magna Carta was a crucial turning point in the struggle to establish political rights and civil liberties.
• Bill of Rights (UK) - 1689
• The full name for the British Bill of Rights is the ‘Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown’, which was passed by Parliament in 1689.
• In specific terms the monarch was obliged to call parliaments frequently, and to abide by parliamentary control over powers of taxation, and was prohibited from keeping a standing army without parliamentary approval, from interfering with the election of members of parliament, and from restricting parliamentary freedom of speech.
• Declaration of Independence (American)- 1776
• On July 4, 1776, the United States Congress approved the Declaration of Independence.
• Document’s primary author, Thomas Jefferson, wrote the Declaration as a formal explanation of why Congress had voted to declare independence from Great Britain.
• Philosophically, the Declaration stressed two themes: individual rights and the right of revolution. These ideas became widely held by Americans and spread internationally as well, influencing in particular the French Revolution.
• Declaration of Independence (American)- 1776
Document declares that;
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,— That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
• The Constitution of the United States of America (1787) and Bill of Rights (1791)
• The Constitution of the United States of America is the fundamental law of the US federal system of government and the landmark document of the Western world. It is the oldest written national constitution in use and defines the principal organs of government and their jurisdictions and the basic rights of citizens.
• The first ten amendments to the Constitution make up the Bill of Rights. Written by James Madison in response to calls from several states for greater constitutional protection for individual liberties. It came into effect on December 15, 1791, limiting the powers of the federal government of the United States and protecting the rights of all citizens, residents and visitors in American territory.
• The Constitution of the United States of America (1787) and Bill of Rights (1791)
• For US citizens the Bill of Rights means the first ten Amendments to the US Constitution. As originally planned the Constitution did not contain a list of citizens’ rights against the state, largely because the framers of the Constitution judged that they had already sufficiently limited the powers of the central government.
• The Ten Amendments (listed in the Bill as articles, but normally referred to as amendments) cover a wide range of the most important civil liberties as understood at the end of the 18th century.
• The Constitution of the United States of America (1787) and Bill of Rights (1791)
• The Bill of Rights protects freedom of speech, freedom of religion, the right to keep and bear arms, the freedom of assembly and the freedom to petition.
• It also prohibits unreasonable search and seizure, cruel and unusual punishment and compelled self-incrimination.
• The Bill of Rights prohibits Congress from making any law respecting establishment of religion and prohibits the federal government from depriving any person of life, liberty or property without due process of law.
• In federal criminal cases it requires indictment by a grand jury for any offense, or crime, guarantees a speedy public trial with an impartial jury in the district in which the crime occurred.
• Declaration of the Rights of Man and of the Citizen- (France) 1789
• In 1789 the people of France brought about the abolishment of the absolute monarchy and set the stage for the establishment of the first French Republic.
• This human rights document, passed by the French National Assembly in 1789 at the height of revolutionary fervour, is one of the earliest in legal document of human rights in the history.
• Its a radical document for its time;
• It defends egalitarianism : The Declaration proclaims that all citizens are to be guaranteed the rights of “liberty, property, security, and resistance to oppression.”
• Restricts executive power.
• It provides that no one can be accused, arrested or detained except as provided by legislation.
• Also ensured the protection against persecution for opinions and religious beliefs.
• Declaration of the Rights of Women and of the Female Citizen- (France)- 1791
• This document is written by the feminist activist in response to the Declaration of the Rights of Man and of the Citizens in France.
• It is an important mile stone in feminist struggle against the conditions of the patriachical society and politics.
• The document is a manifesto of women’s right. It opposes to the approach of Declaration of the Rights of Man because this document grant citizenship rights only to male population of France.
• References
Donelly, J. 2013 Universal Human Rights in Theory and Practice, Cornell University Press:
Forsythe, D. P. 2006. Human Rights and International Relations. Cambridge: Cambridge University Press. 2nd ed., Part One: The Foundations
Ramcharan, B. G. 2008. Contemporary Human Rights Ideas. Abingdon, Oxon: Routledge.
Robertson, D. 2004. A Dictionary of Human Rights. Europe Publications, Taylor and Francis Group.
• Conceptualising Human Rights
POLS413 CONTEMPORARY HUMAN RIGHTS
Lecture One
• Introduction
• Developments in the field of Human Rights since 1948
• How to conceptualize the new and old generation of rights
• The post-war developments
• Despite the rhetoric of universality, human rights remained essentially a national matter until 1945 when they were recognized in global international law.
• Only after the Second World War, truly revolutionary developments occurred in the legal theory and diplomatic practice of internationally recognized human rights.
• In 1948, member states of the United Nations negotiated an international bill of rights.
• The UN Charter
• On 26 June 1945, 50 states met in San Francisco to sign the UN Charter.
• The Charter has pivotal importance to promote human rights globally. Because it established respect for human rights and promoting their observance as a fundamental value; and the members pledge themselves to take action for the achievement of these human rights objectives.
• The Charter refers to human rights seven times: in the preamble, and in articles 1, 13, 55, 62, 68 and 76.
• However, it does not tell us what they are
• The Commission on Human Rights
• The UN soon (in 1946) appoints the Commission on Human Rights. The Commission was composed of eighteen member states and was charged with producing an international bill of rights.
• This was the genesis of one of the most important documents of our time: the Universal Declaration of Human Rights.
• The Commission on Human Rights
• In the aftermath of the atrocities of WWII, there had been little disagreement among the Western allies about the need to incorporate the promotion of respect for human rights.
• However, disagreements developed in the Commission:
Ø Should we need a declaration of rights only or of a binding covenant?
Ø The content of the rights and inclusion of economic, social and cultural rights as well as civil and political?
• Key decision of the Commission on Human Rights
• The Commission decided that the document should carry a moral but not legal weight.
• Why? It was considered that this would be more practical at this stage which can become the foundation for legally binding international bill of human rights later.
• This has proved to be a wise decision, because the Declaration has acquired a remarkable status as the most authoritative document of the international human rights movement.
• Universal Declaration of Human Rights
• The aim of the Declaration, in its own words, is to set ‘a common standard of achievement for all peoples and all nations…’, so that ‘keeping this Declaration constantly in mind, (all) shall strive by teaching and education to promote respect for these rights and freedoms…’
• Universal Declaration of Human Rights
• The title of the declaration emphasizes that these are the rights for all people everywhere without regard to race, sex, colour, political persuasion or ethnic background.
• Article 1 reflects this emphasis by stating that:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
• Universal Declaration of Human Rights
• Clearly, the belief expressed is that the rights in the Declaration are inherent in human beings and not bestowed on them by states or even by the United Nations. Or the commission
• The Declaration merely affirms that these rights already exist and that all individuals and societies are obliged to promote respect for them.
• The Declaration is a masterly compilation of rights that are subsequently divided into two separate types that were made the subject of separate covenants: civil and political on the one hand and economic and social on the other.
• Universal Declaration of Human Rights
• The Declaration was presented to the General Assembly of the UN in December, 10th 1948.
• The General Assembly endorsed the text of the Declaration without amendment.
• There were no dissenting votes, but the Soviet Union and its satellites, as well as Saudi Arabia and South Africa, abstained.
• It became the model for subsequent regional rights codes like the African Charter on Human and People’s Rights and the European Convention on Human Rights, as well as its own more legally-binding UN successor documents, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
• Class Activity
• Read UDHR together.
Article 22 social rights
• Post-UDHR developments
• On the same day, the UNGA asked the Commission on Human Rights to draft a covenant which could become a legally binding treaty.
• It took the Commission six years of drafting and debating, and in 1952 recognizing the difficulty of a single binding treaty the UNGA requested that the Commission on Human Rights draft two covenants rather than one.
• These covenants are names as, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. They both opened for signature in 1966 and entered into force in 1976.
• Post-UDHR developments: International Bill of Human Rights
• The International Bill of Human Rights was the name given to UNGA Resolution 217 (III) that adopts the UDHR and its two subsequent international treaties; The International Covenant on Civil and Political Rights (ICCPR, 1966) with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights (ICSECR)
• The International Covenant on Civil and Political Rights
• The document was adopted by the UNGA in 1966 and entered into force in 1976.
• It expands upon the civil and political rights and freedoms enshrined in the Universal Declaration of Human Rights.
• This document’s counterpart in the economic, social and cultural sphere is the International Covenant on Economic, Social and Cultural Rights.
• The International Covenant on Civil and Political Rights
The Civil and Political rights themselves may be classified as follows:
• protection of an individual’s physical integrity; for example, freedom from torture, arbitrary arrest and deprivation of life;
• procedural fairness, provisions on arrest, trial and imprisonment;
• equal protection norms; freedoms of belief, speech, association, movement;
• and political participation.
• The International Covenant on Civil and Political Rights
• The document is a multilateral treaty that has been endorsed by the UNGA.
• As of 2018, the Covenant has 169 parties. There are also six signatories that has not ratification the covenant in their legislatures.
• To remain up-to-date on the status of treaties and signatory countries, you can follow the interactive map of UN’s page below;
*http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
• International Covenant on Economic, Social and Cultural Rights
• The International Covenant on Economic, Social and Cultural Rights, adopted by the UNGA on 16 December 1966.
• This document expands upon the economic, social and cultural rights and freedoms enshrined in the Universal Declaration of Human Rights.
• Its counterpart in the civil and political sphere is the International Covenant on Civil and Political Rights.
• International Covenant on Economic, Social and Cultural Rights
• The covenant begins with the right of peoples to self-determination.
The other rights affirmed are the following:
• economic rights: such as the right to work (Article 6), to form and join trade unions (Article 8), to social security (Article 9), to an adequate standard of living (Article 11);
• social rights: such as the right to the highest attainable standard of physical and mental health (Article 12), to education (Article 13);
• cultural rights: such as the right to participate in the cultural life of the community and enjoy the benefits of scientific progress.
• International Covenant on Economic, Social and Cultural Rights
• The Covenant reflects the commitments adopted after World War II to promote social progress and better standards of life and reaffirming faith in human rights.
• The Covenant is an international human rights treaty, it creates legally binding international obligations to those States that have agreed to be bound by the standards contained in it.
• As of 2018, 166 States are parties signed and ratified the ICESCR. 4 states signed it but the status of ratification is pending. Thus, it can be seen as a treaty that reflects global consensus on the universal human rights standards that apply to the economic, social and cultural fields.
• Other Developments
• In 1951, in conference organized by the UN to address the issue of refugees, the Convention Relating to the Status of Refugees was adopted. The treaty defines who is a refugee. It sets out the rights of individuals who are granted asylum and the responsibilities of nations to that grant asylum to the ones in need.
• In 1984 the UNGA adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
• Other Developments
The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
• This is the international treaty adopted by the UNGA in 1979 . It is the international bill of rights for women.
• In 1989, the Convention on the Rights of the Child was drafted by the United Nations Commission on Human Rights, and was adopted by the General Assembly on 20 November.
• Regional Developments
• Later, the UN programme on human rights supported by regional conventions around the world.
• The most prominent of these are the European, the American, the African and the Convention of the Commonwealth of Independent States of the former Soviet Union attempts.
• The first two conventions were closely modelled on the Universal Declaration on Human Rights.
• European Convention on Human Rights, 1950
• The European Convention on Human Rights were drafted and ratified by the Council of Europe. As in 2007, the forty-seven European states, including Russia signed the document.
• It covers primarily Civil and Political rights.
• ESC rights are contained in a separate document called the Social Charter(or European social charter) and in fact take the form not of rights but of long-term social objectives.
• The American Convention on Human Rights, 1978
• The American Convention on Human Rights of 1978, ratified by twenty-four states.
• This declaration also covers mainly Civil and Political rights.
• ESC rights are dealt with in a protocol to the Convention known as the Protocol of San Salvador of 1999 that has been ratified by twelve states.
• The African Charter on Human and Peoples’ Rights (Banjul Charter) of 1986
• The document is drafted and signed by the African Union and it covers not only CP and ESC rights but also third-generation rights, including the rights of peoples to development and to a satisfactory environment.
• This Charter also contains a list of duties of individuals to their state, their society and their family, such as a duty to preserve and strengthen social and national solidarity and independence.
• The African Charter on Human and Peoples’ Rights (Banjul Charter) of 1986
• The agreement came into affect in 2004.
• As of 2016, 54 African states signed and ratified the treaty.
• It served as a pretext to the formation of the African Court of Human Rights.
• Class Activity-Debate
• How do we conceptualize human rights?
• Discuss the relationship between human dignity, human rights and the concept of ‘inhuman treatment’.
• Are ESC rights really human rights?
• Why do we need the concept of human rights?
• Should rights go beyond traditional CP and ESC rights?
• Three Generations of Rights
• How do we conceptualise human right?
• Why some documents focus on some rights and not the others?
• Are ESC rights really human rights?
• Concept: An abstract idea, it’s a category of ideas.
• Conceptualization involves explicit specification. Developing general abstract categories of a complex idea or thought. It involves the process of a higher level abstraction with a purpose of facilitating the discussion and enabling a comparison of various ontologies. The process facilitates the discussion and knowledge sharing.
• In 1977, Czech jurist Karel Vasak proposed the concept of three generations of rights. According to this categorization:
• First Generation
• The first-generation rights dealt mainly with liberty and political freedoms
• It is claimed in the tradition of thinking about natural or human rights beginning in the seventeenth century these rights were the only ones identified.
• However what’s true is that the liberal and partially democratic states of Europe of the eighteenth and nineteenth centuries were primarily concerned with CP rights.
• They are strongly individualistic and negatively constructed to protect the individual from the state.
• Second Generation
• The second generation rights deal mainly with equality considerations. The second generation covers Economic, Social and Cultural rights.
• ESC rights only came to political prominence in the course of the nineteenth and twentieth centuries with the rise of socialism and the labour movement.
• They are not rights directly possessed by individuals but constitute positive duties upon the government to respect and fulfill them.
• Third Generation
• Vasak proposes that rights go beyond traditional civil and political rights and its companion ESC rights.
Some exampled
• Right to self determination
• Right to economic and social development
• Right to healty environment
• Right to communicate.
• Right to participation and protection of cultural heritage
• Right to development.
• Minority Rights
• Third Generation
• The third generation of rights, an extremely broad spectrum of rights that have not yet been formally adopted in a UN covenant. The term third generation remains largely unofficial.
• Third generation includes the right to development and environmental rights. They are also called solidarity rights!
• The idea of ‘third generation’ rights is much more recent and has been adopted predominantly by developing states.
• Questions
Should rights go beyond traditional civil and political rights (socio-economic rights, cultural rights, solidarity rights to peace, or economic development, or a healthy environment?),
Where rights originate (god, natural law, human construction?).
What is the best way to implement them (courts, extra-judicial policy, private action, education?).
• Do you know your rights?
• Are these rights universal?
• How does human rights “work”?
• Please find the relevant charter of your states constitution and familiar yourself with the legally recognized rights in your state!
• Bibliography
Charvet, J. and Kaczynska-Nay, E. 2008. The Liberal Project and Human Rights: The Theory and Practice of a New World Order. Cambridge University Press.
Robertson, D. 2005. A dictionary of Human Rights. Europa Publications.
Beitz, C. R. 2009. The Idea of Human Rights. Oxford: Oxford University Press.
• Contemporary
Issues:
Global applicability of Human Rights and
IR
POLS413 Contemporary Human Rights
Week 3
• Content
• Introduction
• The who question?
• State tendencies
• Key actors of the evolving regime:
-The UNSC
-The UNSG
-The UNGA
-The ICJ
-the Other bodies.
• Introduction
• As we discussed last week, new human rights goals were proclaimed in 1945, and many human rights treaties were subsequently adopted.
• In this lecture we will examine more closely the evolving process for applying universal human rights standards on a global basis.
• We will also argue whether there is now more commitment to liberalism, as shown through institutionalized procedures to protect human rights.
• Early Questions
• How can we implement Universal Human Rights?
• How can we oversight the implementation?
• Is building a court system only way to oversight implementation of Universal Human Rights?
• How to promote the idea of Human Rights?
A good read:
Forsythe, D. P. “Who Guards the Guardians: Third Parties and the Law of Armed Conflict,” American Journal of International Law, vol.70:2 (January 1976), 41–61
• Who question?
• International law has traditionally been clearer about “What?” than “Who?”
• The law has emphasized what legal rules apply in different situations.
• However it has not explicitly addressed who is authorized to make authoritative judgments about legal compliance in the field of human rights.
• State tendencies
• “Most states, in negotiating human rights agreements, do not want authoritative international means of protection.” (Forsythe 1989).
• In other words, many states have asserted an apparently liberal commitment to internationally recognized human rights.
• But most states have elevated national independence, particularly the supremacy of national policy making, over the realization of universal human rights.
• Still, there is an evolving regime to restrict state sovereignty to promote global enforcement of universal Human rights norms.
• The Security Council
• The UN Charter indicates that UNSC has primary responsibility for the maintenance of international peace and security, which meant issues of peace and war.
• On security issues the Council can take legally binding decisions (this is under Chapter VII of the Charter pertaining to enforcement action).
• Also on economic, social, cultural, and humanitarian issues the Council can make recommendations (this is under Chapter VI).
• The issue of human rights often fell into one of these categories.
• The Security Council
• From about 1960 to the end of the Cold War, the Council began to deal more systematically with human rights issues as linked to four subjects:
• Racism – especially in southern Africa;
• human rights in armed conflict;
• armed intervention across international boundaries;
• armed supervision of elections and plebiscites (referendums).
• During this era the Council sometimes asserted a link between human rights issues and transitional violence.
• The Security Council
• In the process the Council shrank the scope of domestic jurisdiction protected by state sovereignty.
• With its decisions, the Council often implied that security could refer to the security of persons within states, based on their human rights, and not just to traditional military violence across international frontiers.
• During the 1990s, these developments, increased the UNSC’s potential to safeguard human rights.
• The Security Council
Towards the end of Cold War,
• Firstly, wars in places like Chechnya, Sri Lanka and Algeria drew Council’s attention. But realist principles still mattered and only when global powers (especially the US) thought that their interests is threatened ,the Council acted.
• However, the Council has continued to say that human rights violations inside states can threaten international peace and security. In early 1992 a Council summit meeting of heads of state issued a very expansive statement indicating that threats to security could arise from economic, ecological, and social causes, not just traditional military ones.
• Thirdly, the Council sometimes made bold pronouncements on behalf of Council authority, but then proceeded to seek extensive consent from the parties to a conflict.
• Fourthly, the Council has frequently deployed lightly armed forces in “peacekeeping operations” under Chapter VI, with the consent of the parties, to help ensure not just simple peace based on the constellation of military forces, but a more complex liberal democratic peace based on civil and political rights will be achieved.
• Fifthly, the Council has asserted the authority under Chapter VII to create ad hoc criminal courts, to prosecute and trail those engaging in war crimes, crimes against humanity, and genocide. In this last regard the Council has asserted that all member states of the UN are legally obligated to cooperate with the ad hoc courts.
• The Security Council
• Therefore overall record of the Council on human rights issues after the Cold War was complex.
• Since the end of Cold War, the Council is more extensively involved in trying to help apply human rights standards than ever before. It had demonstrated on a number of occasions that human rights protections could be intertwined with considerations of peace and security.
• It had certainly blurred the outer boundaries of state sovereignty and its domestic jurisdiction.
• However, the continuing problem within the Council is the inconsistent record of the Permanent Five (P-5) members of the Security Council when dealing with human security.
• Office of the Secretary-General
• As human rights have become more institutionalized in UN affairs, Secretaries-General have spoken out more frequently and been generally more active in this domain.
• Secondly, while all Secretaries-General have given priority to trying to resolve issues of international peace and security, increasingly they have found human rights intertwined with security. Yet, human rights issues tended to be either down-graded or dealt with quiet diplomacy.
• Boutros Boutros-Ghali was the most outspoken Secretary-General on human rights up to that time, making a strong case in particular for democracy.
• His Agenda for Development strongly advocated democratic development, based on civil and political rights.
• Office of the Secretary-General
• In 1993, the office of UN High Commissioner for Human Rights established by the UNGA. This was the period that the Cold War was over and human rights had been integrated with many security concerns.
• Also during this period much of the powerful West begun to demand more vigorous UN diplomacy for human rights.
• Boutros-Ghali had appointed the Ecuadoran, Jose Ayala Lasso, as the first UN High Commissioner for Human Rights. This was a positive progress on UNSG’s behalf.
• But there were also major constraints imposed by states – such as lack of real commitment to international human rights, lack of consensus on priorities, and lack of adequate funding.
• Even as states endorsed human rights norms, they still did not like being criticized in public on human rights issues.
• The UN General Assembly
• The UN General Assembly has been instrumental in the promotion of human rights, approving some two dozen treaties and adopting a number of resolutions endorsing various human rights in general.
• Therefore the Assembly shrank the realm of state sovereignty by demonstrating clearly that diplomatic discussion of specific human rights situations in specific countries was indeed part of routinized international relations, even if the Assembly displayed a tendency to adopt paper solutions to complex and controversial subjects.
• The International Court of Justice
• The International Court of Justice (ICJ) is technically a principal UN organ but highly independent one.
• The ICJ is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
• It is one of the six principal organs of the United Nations.
• The Court’s role is to settle legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.
• The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.
Viza Exam
• The International Court of Justice
• Yet ICJ has not made a major imprint on the protection of international human rights.
• This is primarily because only states have standing before the Court, and states have demonstrated for a long time a reluctance to either sue or be sued – especially on human rights – in international tribunals.
• Without allowing individuals legal standing, the ICJ’s case load on human rights is highly likely to remain light.
• In this respect the end of the Cold War has made no difference. State defense of sovereignty still trumps interest in orderly and humane international relations, at least in so far as the ICJ is concerned. The ICJ shows that realism is alive and well, even if other parts of international relations show an advance for liberalism.
• Other bodies:
• In addition to the principal UN organs, there are several subsidiary bodies that concern themselves with the application of human rights standards.
The focus here is on
• the Human Rights Commission,
• the International Labor Organization (ILO)
• the Office of the UN High Commissioner for Refugees
• The Sub-Commission on Prevention of Discrimination and Protection of Minorities (renamed the UN Sub-Commission on Human Rights)
• The Commission on the Status of Women has been primarily engaged in promotional and assistance activities rather than protection efforts.
• The two ad hoc criminal courts are addressed in chapter 4.
• UNESCO can be mentioned in passing
• United Nations Commission on Human Rights (UNCHR)
• It established in 1946..The Commission for Human Rights was anticipated from the very beginning of the UN and first served as a technical drafting body for the International Bill of Rights and other international instruments on human rights.
• One can expect UN Human Rights Commission to be the premier body for human rights issues. After the Cold War this is no longer completely the case.
• Because it is the UNSC that establishes a connection between human rights and international peace and security.
• What can be said is that until 2005 the Commission remained the center for traditional or routine human rights diplomacy.
• It was replaced by the United Nations Human Rights Council in 2006.
• International Labor Organization
• The ILO has long been concerned with labor rights, first as a parallel organization to the League of Nations, then as a specialized agency of the UN system.
• It has developed several complicated procedures for monitoring state behavior in the area of labor rights.
• All member states of the ILO are subject to a special review procedure on the key subject of freedom of association, regardless of their consent to various ILO treaties.
• The High Commissioner for Refugees
• UNHCR was set up in 1951 to help the estimated 1 million people still uprooted after World War II to return home.
• However as the world refugee crises got worse UNHCR kept its relevance.
• Since the end of WWII, refugees as defined in international law numbered about 13–15 million each year.
• Some 2 million persons fled genocide in the Great Lakes region of Africa in 1994–1995. Some 800,000 ethnic Albanians were forced out of Yugoslavia’s Kosovo area in 1999.
• In the last couple of year only due to Syrian conflict 3,914,625 people became refugees (Official UNHCR numbers, March 2015).
• Therefore, the UNHCR became a permanent organization with an annual budget of around $1 billion.
• The High Commissioner for Refugees
• The 1951 Refugee Convention spells out that a refugee is someone who
"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.“
• International law provided for legal refugees – those individuals crossing an international boundary on the basis of a well-founded fear of persecution has the legal right not to be returned to a threatening situation, and thus were to be granted at least temporary asylum in states of first sanctuary.
• The High Commissioner for Refugees
• The UNHCR started out primarily as a protective agency that sought to represent legal refugees diplomatically and legally. Thus the early role of the UNHCR was primarily to contact states’ legal authorities and/or foreign ministries on behalf of those exiles with a well-founded fear of persecution.
• Increasingly the UNHCR was drawn into the relief business, to the extent that some observers believed it was no longer able to adequately protect refugees because its time, personnel, and budgets were consumed by relief operations.
• The UNHCR faced numerous and complex issues while trying to provide protection and relief to those who had broken normal relations with their governments
• Treaty Specific Bodies
• Since states are unwilling thus far to create a human rights court to coordinate the protection of internationally recognized human rights, each human rights treaty provides its own monitoring mechanism.
• Since obviously the UN Human Rights Commission, the ILO, and the UNHCR have not resolved all or even most human rights problems, the tendency is to respond to pressing problems via a specialized treaty with an additional supervisory system.
• The issues of Treaty Specific bodies and international humanitarian law will be covered later.
• Conclusions
• Global enforcement of human rights, in the form of international court judgments and other forms of direct international responsibility for the application of human rights standards, is still a relatively rare event.
• While direct international protection or enforcement of human rights is mostly absent, attempts at indirect international implementation of human rights are frequently present.
• State sovereignty is not likely to disappear from world affairs any time soon, but it is being restricted and revised in a continuing and complex process. Human rights norms are at the core of this historical evolution.
• Human Rights and Foreign Policy
Contemporary Human Rights
Lecture 4
Adopted from Forsythe 2006, Chapter 6
• Introduction
• This lecture looks at human rights and state foreign policy in comparative perspective.
• It begins with a short discussion of three prominent mechanisms states can employ to influence another government’s human rights policies: diplomatic, economic, and military means.
• This is followed by a focus on the United States, the most important actor in international relations at the birth of the twenty-first century and the principle of R2P.
• Linking Human Rights to Foreign Policy
• Since the 1940s, almost all states – not just western ones – have regularly reaffirmed the existence of universal human rights without negative discrimination based on nationality, ethnicity, gender, race, creed, or color.
• The 1948 UDHR was the first intergovernmental statement to approve a set of basic principles on universal human rights.
• The United Nations Charter in its Articles 55 and 56 required states to cooperate on human rights matters.
• As noted, this reaffirmation occurred most saliently at the 1993 UN conference on human rights at Vienna.
• Also regional developments have supplemented this global trend, most notably in Europe and the Western Hemisphere.
• Therefore international law of human rights is now a well-developed corpus of law, far more concentrated and specified than other fields such as international environmental law.
• UN Charter-Related Articles
Article 55
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
• higher standards of living, full employment, and conditions of economic and social progress and development;
• solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
• universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
Article 56
All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.
• Linking Human Rights to Foreign Policy
• At the start of the twenty-first century, a fundamental challenge is how to reduce the enormous gap between the liberal legal framework on human rights that most states have formally endorsed, and the realist principles that they often follow in their foreign policies.
• Partly as a result of those realist policies, little has been done about the illiberal reality of the human condition that is so evident from Algeria to Angola, from Belarus to Burma, from China to the Central African Republic.
• The important problem is that after the Cold War we are now faced with glaring genocide and other crimes against humanity on a massive scale.
• Treaties to protect the rights of women and children are juxtaposed with a global industry in the sex trade.
• Linking Human Rights to Foreign Policy
• Since the end of Second World War, inter-governmental agencies and private transnational groups dealing with human rights such as Amnesty International, Human Rights Watch have proliferated.
• However one key to progressive developments remains: states and their foreign policies.
• But it is still states that approve treaties and their monitoring mechanisms. Same states may sometimes manipulate foreign assistance in relation to rights. It is states that arrest war criminals – either singly or via international organizations such as NATO.
• And NGOs and INGOs are mainly there to pressure states to do the right thing.
• What can be done? Policy instruments
• In the past, states have often proven reluctant to speak out on human rights violations by others, fearing interruption of “business as usual”– not only on business but also on other important matters like security cooperation.
• For instance, states do not like to sue each other about human rights in the International Court of Justice, the number of cases on human rights being very small.
• Similarly within Council of Europe, neighboring states with lots of common concerns do not often sue each other in the European Court of Human Rights, the overwhelming number of cases being triggered by individual rather than state complaint.
• But when states do concern about advancing human rights situation within another state they use: Diplomatic, Economic and Military Means
• Policy Instruments: Diplomatic means
• There are a number of ways a state may utilize diplomacy to try to influence the policies of states violating human rights.
• Quite Diplomacy: The traditional, classical method has been that of “quiet” diplomacy, that is, to hold a confidential discussion behind closed doors and away from public view. From time to time private diplomacy for human rights is then followed by public statements,
• For instance when President G. Bush met with Russian President V. Putin in early 2005. President Bush, having devoted his second inaugural address to the theme of freedom, could hardly not raise the subject of Russian policies at home and abroad that touched on human rights. And by all accounts there was some private attention to human rights in places like Chechnya and the Ukraine during this presidential summit.
• Diplomatic Means
• Moving private dialogue to public might have negative or positive consequences.
• Sometimes state leaders who are subjected to public criticism often become defensive and inflexible in the name of national pride, state sovereignty, or because they have domestic elements who are “hard liners” about resisting foreign pressure.
• Other times some public pressure can be productive, and the human rights NGOs that engage in the “naming and shaming” game can cite a number of situations in which public pressure brought some progressive gains over time.
• Diplomatic Means
• Suspending or cancelling meetings: Other essentially diplomatic steps can be undertaken, such as cancellation or postponement of ministerial visits or recall of ambassadors.
• This is likely to draw attention to the issue at hand, particularly when done by prominent states.
• Cultural and sports-related embargos: Often less influential, though undeniably symbolic, are various cultural or sports-related embargos enacted by states. For example, many states refused to participate in sporting events with South Africa under white minority rule to protest the country’s policy of apartheid . . . These actions were generally supported by apartheid’s victims and often found favor with public opinion in criticizing states – in part because one could take a stand for human rights without paying much price in national blood or treasure.
• Diplomatic Means
• Positive Diplomatic Means: Not all diplomatic techniques are negative in nature.
-States may offer ministerial visits or invite foreign diplomats or heads of state to visit in an effort to support a country’s human rights policies.
- Governments may be invited to participate in international conferences or to join international organizations, such as the Council of Europe or the European Union, in order to influence human rights policy.
• Efficiency: These diplomatic methods used to protest or draw attention to particular human rights violations. While diplomatic means may or may not be effective by themselves, they can be linked to other steps.
• Economic Means
• Governments are often reluctant to undertake economic sanctions against another state – whether for human rights or other reasons – as they may hurt themselves.
• States, sometimes may suspend full trade, and also development aid or other types of foreign assistance. This is mostly because of the lack of other appealing options . But this type of sanctioning can have unintended or unwanted effects.
• Former UN Secretary General Boutros Boutros-Ghali expressed this concern:
“[Economic sanctions] raise the ethical question of whether suffering inflicted on vulnerable groups in the target country is a legitimate means of exerting pressure on political leaders whose behaviour is unlikely to be affected by the plight of their subjects.”
Boutros Boutros Ghali, quoted in Peter Baehr, The Role of Human Rights, 74.
• Economic Means
• Effectiveness: Most general economic sanctions undoubtedly do not seriously affect the elite, because the rulers and associated social circles are well positioned to avoid inconvenience.
• Most general economic sanctions also fail to drastically change policy by the target state in the short term.
• Smart Sanctions: Therefore recently, “smart sanctions” have been tried on occasion in an effort to affect target governments while avoiding harm to civilian populations.
• Smart sanctions may include closing off elite bank accounts and freedom to travel.
• As with diplomatic means, economic steps do not have to be negative in nature. States may often provide loans or credits to governments who are willing to adopt measures conducive to human rights protection.
• Military Means
• There is also a range of military steps available at least to those states with effective military establishments. The most dramatic of these measure is that of coercive military action.
• Such action, may be taken to stop gross human rights violations such as major war crimes, crimes against humanity, or genocide.
• When undertaken without UN Security Council approval, such action is highly controversial, as seen by NATO’s bombing of Serbia in 1999 to try to stop violent persecution and forced displacement of the ethnic Albanians constituting a majority of the Kosovars.
• There is the long-standing problem that states may claim to be engaged in “humanitarian intervention” whereas in reality they have other primary motives.
• Military Means
• There have not been many clear cut cases of “humanitarian war” for obvious reasons: most states have been reluctant to spill national blood for the protection of the rights of “others,”.
• It is hard to justify such uses of force when the projected human and other costs may exceed the humanitarian good accomplished.
• Less controversial than unauthorized state military action is state military support for a UN Security Council resolution designed to alleviate human rights problems.
• This may take the form of an enforcement or peacekeeping field operation.
• Responsibility to Protect: Key Developments
• Nowadays, it is harder to find someone who completely supports non-intervention. The international community’s lack of effective actions in Bosnia an Rwanda and the subsequent genocide has had a massive impact on the theory and practice of intervention.
• Even those who are deeply suspicious of armed humanitarian intervention and deeply sceptical about its prospects of success may still admit that it might, in theory, be justified when a humanitarian crisis is sufficiently serious.
• A key development in this context has been the report by the International Commission on Intervention and State Sovereignty (ICISS) 2001, The Responsibility to Protect.
• Responsibility to Protect: Key Developments
Following the controversy surrounding NATO’s intervention in Kosovo in 1999, the International Commission on Intervention and State Sovereignty (ICISS) was established by the Canadian Government.
• ICISS published its report, The Responsibility to Protect, in December 2001.
• The report argued that sovereign states had certain responsibilities towards their own citizens which, if not honoured, should become a matter of international concern, and possibly grounds for external intervention.
• Responsibility to Protect: Key Developments
• Commissioned by the Canadian government in response to a request from the then UN Secretary General, Kofi Annan, and led by former Australian foreign affairs minister, Gareth Evans, this report argues that a state has the responsibility to uphold its citizens’ human rights. If it is unable or unwilling to fulfil this responsibility, such as in cases of mass killing, its sovereignty is temporarily suspended.
• In such cases, the responsibility to protect these citizens transfers to the international community. The international community’s responsibility to protect involves the ‘responsibility to prevent’ the crisis, the ‘responsibility to react’ robustly to it, and the ‘responsibility to rebuild’ after.
• The ‘responsibility to react’ may, on occasion, require humanitarian intervention, providing that certain ‘precautionary principles’ have first been met (just cause, legitimate authority, right intention, last resort, proportional means, and reasonable prospects).
• Responsibility to Protect: Key Developments
• The report became a key focus for the debate on R2P and humanitarian intervention and this issue soon made its way on to international political agenda.
• UN, state officials, and NGOs regularly use the term R2P in relation to serious humanitarian crises and military intervention. For instance, the Report of the UN High-Level Panel on Threats, Challenges and Change in 2004, A More Secure World, argues that ‘[t]here is a growing recognition that the issue is not the “right to intervene” of any State, but the “responsibility to protect” of every State’ (UN 2004: 56).
• In Larger Freedom, Kofi Annan argues that we must ‘move towards embracing and acting on the “responsibility to protect”’ (2005: 35).
• 2005 UN World Summit
• At 2005 World Summit, (in other words the High-Level Plenary meeting of the 60th session of the General Assembly) the concept was formally recognized by all UN member states and it has been referred to since in both Security Council and General Assembly resolutions.
• Through these developments R2P dethroned the old fashioned term ‘humanitarian intervention’.
• Outcomes of the World Summit indicated UN member state’s preparedness to undertake action ‘should peaceful means be inadequate’ and when ‘national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (UN 2005: 30).
• Historian Martin Gilbert defines this as the ‘most significant adjustment to national sovereignty in 360 years’ (in Axworthy and Rock 2009: 69).
• Seminar Questions
• Is state sovereignty a good thing or a bad thing?
• Should the international community disregard claims to state sovereignty when gross violations of human rights are at issue?
• Is any subject essentially or totally within the sovereign domestic affairs of states?
• Why do states that practice liberalism and human rights at home sometimes find it difficult to advance human rights in international relations?
• Is it ever proper for a state, or a collection of states, to use coercion in another state to protect human rights, without the explicit and advance approval of the UN Security Council? What lessons should be drawn from NATO’s action in Kosovo?
• What is the form of humanitarian intervention that should be approved and repeated by the international community?
• Transitional Justice and the Court System
• Adopted from Forsythe 2006
• Introduction
• What to do after gross violations of human rights?
• Should one prosecute individuals in international courts, or in hybrid or special courts, or in national courts?
• Should one avoid courts and rely on truth commissions, or bar violators from public office, or just move on to concentrate on building a rights protective state in the future rather than looking back via criminal prosecution?
• These issues are the subject of transitional justice, the issue of growing sensitivity for intellectuals and policy makers after the Cold War.
• Transitional justice
• Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms. (ICTJ 2015).
• For the United Nations, transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. Transitional justice processes and mechanisms are a critical component of the United Nations framework for strengthening the rule of law (UN 2010)
• Geneva Conventions
• The Geneva Conventions refers to four treaties that signed in 1949.
• These treaties and the following Additional Protocols form the core of international humanitarian law, which regulates the conduct of armed conflict and seeks to limit its effects.
• They protect people not taking part in hostilities and those who are no longer doing so.
• Historical background to 1991
• First trials in this regard are the Nuremberg and Tokyo Trials at the end of the Second World War.
• Twenty-two German leaders were prosecuted at Nuremberg in the first round of trials, nineteen of whom were convicted, with twelve of these being executed. Other individual German cases occurred, in both international and national courts. Similar proceedings were held at Tokyo for Japanese leaders, through fiat of the US military command.
• A pronounced defect of especially the Tokyo tribunal was the total ignoring of gender crimes, despite a broad policy of sexual slavery carried out by Japanese officials.
• Nuremberg and Tokyo Trials
• At Nuremberg (and Tokyo) only the losing leaders were tried, even though allied leaders had engaged in such acts as attacking cities through conventional, incendiary, and atomic bombings, thus failing to distinguish between combatants and civilians – a cardinal principle of international humanitarian law (viz., that part of the law of war oriented to the protection of victims of war, especially the 1949 Geneva Conventions).
• For instance Soviet military personnel committed perhaps 100,000 rapes in Berlin after the defeat of the Nazis. Rapes were systematic practice, yet no commanding officers, much less lower ranking soldiers, were ever held accountable. The Soviet Union then sat in judgment of Germans at Nuremberg.
• Historical background to 1991
• It was only after World War II that the first international criminal proceedings transpired.
• In the last decade of the twentieth century the United Nations created two international criminal courts.
• Moreover a new International Criminal Court (ICC) came into legal existence in July, 2002.
• Furthermore, other special courts were created in the aftermath of atrocities in Sierra Leone, East Timor and Cambodia etc.
• Impact of the courts on domestic thinking
Did the Nuremberg and Tokyo trials, through emphasis on individual criminal responsibility, force those nations to confront the past and face up to the individual moral choices that existed?
• There is widespread agreement that Germany more than Japan has tried to come to terms with the atrocities of the past. Yet both nations experienced similar international criminal tribunals.
A researcher for the Congressional Quarterly wrote that “The tribunals were viewed as illegitimate by the defendants and by much, perhaps most, of the German and Japanese publics.
• Also, since Nuremberg and Tokyo were not followed by other international tribunals for almost fifty years, it is clear that the international trials of the 1940s did little to deter other atrocities through credible threat of sure prosecution.
• National Trials up until 1990s
• In sum, international criminal proceedings have been very rare, and thus we do not know very much about their effects. Rare also have been national proceedings for crimes against humanity and genocide.
• Only national trials for war crimes have occurred with any regularity, and these – mostly in democracies – have been frequently undermined by the continuing strength of nationalism.
• International criminal justice since 1991
• After the Cold War and the demise of European communism, international relations saw the creation of
• two UN ad hoc criminal courts,
• several special hybrid criminal courts,
• and for the first time in history a permanent International Criminal Court.
• There were also important national developments in criminal justice, linked to international human rights and humanitarian law.
• The ICTY
• The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 by the UN Security Council seemed to usher in a new age in international criminal justice.
• The UNSC voted to create a balanced and mostly procedurally correct international tribunal and legally required all UN member states to cooperate with the tribunal by invoking Chapter VII of the Charter.
• Those who committed war crimes, crimes against humanity, and genocide in that particular situation were to be prosecuted. The emphasis was on commanders who authorized or allowed the crimes.
• The ICTY Criticism
• From the creation of the tribunal in 1993 to the conclusion of the Dayton agreement in 1995, many policy makers and observers found fault with the very existence of the ICTY for possibly impeding diplomatic peacemaking.
• The logic was clear enough. This classic dilemma between peace and justice, between stability and punishment, became pronounced with the creation of the new court.
• Would one prolong the fighting, with accompanying atrocities, by requiring that the principal fighting parties make a just peace – after which their responsible officials would be subjected to criminal justice? Would they not prefer to fight on, rather than cooperate in a peace agreement that would make their arrest and trial more likely?
• The ICTY Criticism
• Even Judge Goldstone, the first prosecutor for the ICTY, noted that truth commissions had certain advantages over criminal trials as far as establishing facts in a form broadly understandable and thus in providing education and catharsis. He advocated both trials and truth commissions.
• Therefore what we see with regard to the ICTY is an early tension between pragmatic liberalism and international criminal justice, a tension that was resolved only with the negotiated Dayton peace agreement for Bosnia, plus NATO intervention regarding Kosovo.
• It was only after these political events that there was serious pursuit of various Serbian leaders in order to hold them personally accountable for certain crimes
• The ICTY Criticism
The ICTY compiled a complicated record.
• The Court was able to punish a number a persons, including some high officials; it also helped develop international law in important ways. As of the fall of 2004 the ICTY had issued final judgments pertaining to 30 persons. The Court in various cases held that:
Ø the 1995 massacre at Srebrenica constituted genocide;
Ø that individuals could be held responsible for crimes committed in internal war, not just international war;
Ø that a detention camp commander was responsible for crimes, including sex crimes, that occurred under his command, whether committed against men or women;
Ø that rape crimes could constitute war crimes or crimes against humanity, not just individual illegal acts;
Ø that someone who did not participate directly in rapes could be convicted of rape for allowing or encouraging it to happen,
Ø that rape was also a form of torture and discrimination
• Locals perceptions
• It was difficult to say whether the Court contributed much beyond punishment and legal development, since it was hard to gauge its effect on regional reconciliation and stability, and closure for affected individuals.
• The Court did not have a good outreach program, explaining its actions to parties in the Balkans. Certainly in much of Serbia and the Serb part of Bosnia, the ICTY was widely seen as anti-Serb.
• Even the 2005 indictment of Ramush Haradinaj, the ethnic Albanian prime minister of Kosovo, did not change the dominant Serb view of the ICTY.
• It was certainly difficult for the ICTY to promote reconciliation among Bosnian Muslims, Serbs of various sorts, and Croats, when the Dayton agreement itself had recognized largely autonomous Serb, Croat, and Muslim sectors within Bosnia.
• The Rwandan Court: ICTR
• The UNSC established the International Criminal Tribunal for Rwanda to "prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring States, between 1 January 1994 and 31 December 1994". (ICTR 2015).
• Since it opened in 1995, the Tribunal has indicted 93 individuals whom it considered responsible for serious violations of international humanitarian law committed in Rwanda in 1994. Those indicted include high-ranking military and government officials, politicians, businessmen, as well as religious, militia, and media leaders.
• ICTR: Landmark decisions
• “The ICTR is the first ever international tribunal to deliver verdicts in relation to genocide, and the first to interpret the definition of genocide set forth in the 1948 Geneva Conventions” (ICTR 2015). This was the Akayesu case, in which, in the view of the trial chamber, the major of the Taba Commune “had reason to know and in fact knew that sexual violence was taking place . . . and that women were being taken away . . . and sexually violated”.
• In this same judgment, rape of women was seen as part of genocide and crimes against humanity. Therefore, it also is the first international tribunal to define rape in international criminal law and to recognise rape as a means of perpetrating genocide” (ICTR 2015).
• “Another landmark was reached in the "Media case", where the ICTR became the first international tribunal to hold members of the media responsible for broadcasts intended to inflame the public to commit acts of genocide” (ICTR 2015).
• The ICTR Critique
• First, it was highly unlikely that an international tribunal prosecuting Hutus during a time of Tutsi control of Rwanda could interject a decisive break in the cycle of ethnic violence that had long characterized that country. Thus the pattern of indictments and convictions did little to break down group allegiance and group hostility.
• Second, during the life of the ICTR, ethnic violence continued on a large scale in the Great Lakes region of Africa with only relative decline compared with 1994. There was mounting evidence that Tutsis had massacred Hutus in eastern Zaire during the struggle for control of that country.
• So for both the ICTY and the ICTR, punishment and legal development were one thing; personal closure and reconciliation were something else.
• The International Criminal Court
• On July 17 1998 a Diplomatic Conference meeting in Rome, relying heavily on the experience of the ICTY and ICTR, approved the statute of a permanent criminal court to be loosely associated with the United Nations.
• Subject matter jurisdiction covers genocide, crimes against humanity, war crimes – and aggression (crimes against peace) when international law presents a sufficiently precise definition, which was not the case in July 1998.
• Judges are elected by the states that are parties to the statute; these judges sit in their individual capacity and not as state representatives. An independent prosecutor is attached to the court.
• The final vote was 120 in favor, 7 opposed (the USA, Israel, China, Iraq, Sudan, Yemen, Libya), and the rest abstaining.
• The International Criminal Court
• The court operates, as of July 1, 2002, sixty ratifications being obtained, on the basis of complementarity. This means that the court does not function unless a state in question is unable or unwilling to investigate and, if warranted, prosecute for one of the covered crimes.
• Thus, whereas the ICTY and ICTR had primary jurisdiction and could supersede state action, the ICC only has complementary jurisdiction.
• The UN Security Council can also refer cases to the court, or can delay proceedings for up to a year, renewable. This latter provision is to allow for diplomacy to trump prosecution – to allow pragmatic liberalism to trump criminal justice.
• Alternatives to criminal justice
• A large number of human rights activists, argue for consistent implementation of criminal justice and decry any amnesty or immunity offered to those who have committed atrocities.
• But our discussion above of criminal already suggested that criminal justice might interfere with, or fail to make a contribution to, other desirable goals such as peace, stability, reconciliation, consolidation of liberal democracy.
• Is criminal justice the only way to advance human rights?
• Other well considered diplomatic/political steps also have their role to play in advancing a liberal international order beneficial to individuals.
• Alternatives to criminal justice
• South Africa after apartheid regime opted for a truth and reconciliation commission with apologies and reparations. If those responsible for political violence, on both the government and rebel sides, would acknowledge what they had done and express remorse, trials would be avoided and reparations paid to victims or their families.
• Complicated rules of evidence can sometimes make it difficult to get the truth out in a clear and simple way. Truth commissions may be better than courts at getting to the “macro-truth” – the big social and political picture of why atrocities took place.
• Alternatives to criminal justice
• Since criminal courts focus on individual responsibility for particular acts, the larger context with its group responsibility may escape examination in judicial proceedings and remain in place to impede “social repair”.
• The South African model for dealing with transitional justice, which downplays criminal justice, is an interesting one – especially since the new South Africa features all-race elections and the protection of many human rights.
• Conclusions
• It is suffice to say that transitional justice can take, and has taken, many forms. None are perfect. All are controversial in that they entail pluses and minus.
• Pursuit of an effective rule of law in international relations is a noble quest. But criminal justice in relation to international events is no simple matter.
• But the following questions still stands:
Will provisions on criminal justice impede peacemaking?
Can suspects be arrested without undermining the limited peace already achieved?
Will court judgments against gross violators of human rights really have any major impact concerning ongoing patterns of violence or future atrocities?
Would more good be achieved, with less bad, via truth commissions rather than criminal proceedings?
• References
• UNSC 2010. GUIDANCE NOTE OF THE SECRETARY-GENERAL United Nations Approach to Transitional Justice.
• ICTJ 2015. What is Transitional Justice?. Accessed online. Available from https://www.ictj.org/about/transitional-justice
• Forsythe, D. Pd. 2006. Human Rights and International Relations. Cambridge: Cambridge University Press. 2nd ed.
• ICTR 2015. The ICTR in Brief. Accessed online. Available from: http://www.unictr.org/en/tribunal
- Teacher: Dr. Hasibe Şahoğlu