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The United Nations was created during and in the wake of World War II, which was a global cataclysm that brought death to millions of civilians. Most of those civilians were primary targets, and often not even enemy targets. The genocide of the Jews, Gypsies, Slavs and others by Nazi Germany, and the brutal repression and discrimination that preceded it, lent weight to the argument that peace and justice were inseparable, the other side of the coin from war and oppression. As stated in September 1944 by the Commission to Study the Organization of Peace, an influential United States nongovernmental organization: "it has become clear that a regime of violence and repression within any nation of the civilized world is a matter of concern for all the rest."

Human Rights in the Charter of the United Nations

On August 14, 1941, the Atlantic Charter was agreed to by U.S. president Franklin D. Roosevelt and U.K. prime minister Winston S. Churchill, along with forty-seven other nations. These charter signatories envisaged a world that would enjoy "freedom from want and fear." Some five months later, the Declaration of the United Nations of January 1, 1942, advocated complete victory over the enemies of the Allied powers, declaring that this was "essential to defend life, liberty, independence, and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands." This declaration was signed by twenty-six nations, which were later joined by twenty-one others.

The eloquent language of the documents to which these nations had pledged themselves doubtless played an important role in mobilizing the Allies' total commitment to victory over the Axis powers, but it was not a guarantee that the values espoused in the document would be seriously embraced in the postwar world. By the time of the second phase of the Dumbarton Oaks Conversations between the United States, the Soviet Union, Great Britain, and China (September 29 through October 7, 1944), divisions among these nations were already apparent. The Chinese delegation fought to insert a condemnation of racism into the draft UN Charter and to prevent human rights being given only the most minimal acknowledgment in the text. The United States, Great Britain, and the Soviet Union were opposed. The Dumbarton Oaks Conversations ultimately yielded proposals that included only one somewhat marginal provision on human rights. In the words of the proposals, the new organization would "facilitate solutions of international economic, social, and other humanitarian problems and promote respect for human rights and fundamental freedoms."

The politics of the Dumbarton Oaks negotiations made it unlikely that any more forceful statement could ever achieve acceptance. The Soviet Union under Stalin was no defender of human rights, Churchill wanted nothing that would threaten Great Britain's colonial empire, and the United States had to cater to its substantial constituencies favoring isolationism and its strict notion of state sovereignty. The United States was also concerned about the human rights implications of legal racial segregation that still held sway in its southern states. The shock and disappointment of less powerful allies, especially Latin American and British Commonwealth states (Canada, Australia and New Zealand), and of American nongovernmental organizations, led to a confrontation on these issues at the San Francisco Conference which ultimately adopted the United Nations Charter. The accumulating evidence of the scope and depravity of the crimes against humanity perpetrated by Nazi Germany lent weight to the cause of those states who wished greater attention be paid to human rights issues. In the words of Paul Gordon Lauren,

as more and more details about the shocking extent of the Holocaust began to seep their way out from under the earth of unmarked mass graves in occupied territories, and from under the barbed wire enclosures of the extermination camps into the world, it became nearly impossible to ignore the connection between racial and religious discrimination, especially as revealed by the recent extremes of Nazi philosophy, on the one hand, and genocidal war on the other (Lauren, 1998, p. 183).

As a result of these currents, several references to human rights were inserted into the UN Charter's preamble, and six articles (Articles 1, 13, 55, 62, 68, and 76) were added. Of special note is Article 1, paragraph 3, which includes among the purposes of the United Nations: "To achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion." The establishment of a Commission on human rights was also explicitly envisaged, in Article 68. On the other hand, traditional notions of sovereignty were acknowledged in Article 2, paragraph 7: "Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any State." Much of the subsequent history of the UN's involvement in the field of human rights has been devoted to resolving the tension between protecting the sovereignty and jurisdictional discretion of individual states and creating an international body that could play a credible role in preventing or punishing human-rights violations.

Studies of Human Rights Topics

The UN's member states put up no real resistance to allowing the UN to sponsor studies of human rights problems in general, as long as they did not involve passing judgment on the behavior of individual states. The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-Commission on Promotion and Protection of Human Rights), a group of individual experts elected by the Commission on Human Rights, has over decades produced many such studies on a variety of topics. These reports are frequently published under the imprimature of the United Nations. Two of the Sub-Commission's studies dealt with the subject of genocide, one by Nicodème Ruhashyankiko (1978), and one by Benjamin Whitaker (1983). Even in the case of these studies, political issues could cause problems. For example, the Ruhashyankiko study was published by the UN, but the Whitaker report was not, because it included as an example of genocide the Turkish massacre of Armenians in the second decade of the twentieth century. This massacre was denied by the Turkish government, which lobbied successfully to block the publication of Whitaker's work.

Human Rights Standard-Setting and Treaties

Another area of UN human-rights activity involved the setting of legal standards and definitions. This endeavor was generally not controversial. The first major text adopted outside of the bodies specifically concerned with human rights issues was the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly December 9, 1948. This was an instrument that criminalized the type of human rights violation that the Nazi government had committed against millions of its citizens and conquered subjects. On the following day, December 10, 1948, the General Assembly adopted the Universal Declaration of Human Rights. Although the declaration had only the force of a recommendation, it quickly became the standard of the international human rights movement. It had been drafted by the UN's intergovernmental Commission on Human Rights, which had its foundation in UN Charter Article 68.

The Declaration became the first element of an International Bill of Human Rights that would eventually be completed by a series of binding treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both of which were adopted on December 16, 1966, and came into force in 1976. Specialized treaties have also been adopted on racial discrimination, torture, discrimination against women, children's rights, and migrant workers' rights. In addition, numerous soft-law instruments (that is, documents containing normative standards that may reflect but do not of themselves constitute legally binding texts) have been adopted by the General Assembly, the Economic and Social Council (ECOSOC: an intergovernmental body, described in the Charter as a principal organ of the UN but reporting and effectively subordinate to the General Assembly), and other UN bodies that codify best practice in such fields as the treatment of prisoners. Many of these instruments have been invoked by UN treaty bodies and regional human rights courts, as guidance to the interpretation of rules of international human-rights law.

Monitoring Human Rights Norms by Treaty Bodies

The principal mode of resolving the tension between the UN Charter's human rights clauses and the domestic jurisdiction clause during the first two decades of the organization's existence was to favor domestic jurisdiction, or at least to give preference to a narrow view of what amounted to improper intervention. The UN's human rights bodies adopted a hands-off approach to allegations of human rights violations. These simply could not be discussed, much less become the subject of resolutions that involved making judgments about a state's human rights behavior.

Instead, the UN relied upon so-called treaty bodies, that is, special committees tasked with the responsibility of supervising the extent of states' compliance with the human rights treaties. By definition, states can waive their sovereign rights of immunity from scrutiny if they accepted a treaty obligation explicitly permitting scrutiny. Even then, however, the main form of supervision consists of a review of periodic reports submitted by the states themselves—a system of supervision whose intrusiveness was perceived to be minimal. Five of the treaties now have provisions whereby states may officially accept that the committee in question may consider complaints from individuals within their jurisdiction: the ICCPR, Race Convention, Torture Convention, Women's Convention, and Migrant Workers' Convention. Four of these also provide for the consideration of possible interstate disputes (ICCPR, Race Convention, Torture Convention, and Migrant Workers' Convention), although this faculty has yet to be employed. Two envisage the possibility of the committee studying a practice of violation (Torture Convention, automatically, under Article 20; and Women's Convention, on the basis of its Optional Protocol). The Torture, Women's, and Migrant Workers' Conventions envisage the compulsory adjudication of disputes between states that are party to the treaties. This procedure has not yet been used.

The review of periodic reports proved to be a more effective process than might have been expected. While the states' reports (often self-serving) were the only official basis for such reviews, committee members found that nongovernmental organizations would brief them informally, so that they were in a position to ask probing questions of the delegations. During the cold war, the opposition of the Soviet Union and its allies to any kind of outside judgment of their domestic practices meant that the committees would refrain from formulating conclusions resulting from the review. However, the early 1990s saw a relaxation of this inhibition, with the committees' adopting findings on the extent of state compliance and making recommendations on measures that could address the problems they found. These amounted to judgments, even though they were not formally binding.

The early inability of the committees to make country-specific observations led them to develop statements by way of what was called General Comments. General Comments serve as an authoritative aid to interpretating of the nature and scope of the obligations contained in the treaties, as the normative language is often couched in very general terms. The practice continued even after the country-specific comments began to be produced.

Another basis of guidance to the appropriate interpretation of treaties lies in the consideration of individual cases by the committees entrusted with that function. The most evolved jurisprudence is that of the Human Rights Committee under the ICCPR. Nevertheless, the committees' conclusions on individual cases are not legally binding on the state concerned. Unlike the European and inter-American regions, the broader, global community has not yet been willing to accept an international human rights court.

Monitoring Human Rights Norms by Special Procedures

The last three decades of the twentieth century saw a radical evolution in the attitude of the UN, especially of the Commission on Human Rights. The Commission, building on two resolutions of ECOSOC (Resolutions 1235 [XLII], 1967; and 1503 [XLVII], 1970), developed what came to be called its special procedures. These were designed to address member-states' unwillingness to deal with individual violations, but were primarily concerned with violations of extreme gravity, or on a massive scale, such as would be associated with crimes against humanity. In the words of ECOSOC Resolution 1503, what was to be studied or investigated were "situations appearing to reveal a consistent patterns of gross . . . violations of human rights."

The effect of ECOSOC Resolution 1235 was to pave the way for the Sub-Commission or the Commission to decide that a specific country situation could be discussed, made the subject of a resolution and even, if agreed by the Commission, put under investigation by an ad hoc group or a special rapporteur. To achieve this, the situation had to be introduced by a member of the Sub-Commission or the Commission, and a vote had to be taken to authorize the drafting of a resolution.

By Resolution 1503, information submitted by nongovernmental organizations or individuals was to be treated confidentially in a protracted procedure involving both the Sub-Commission and the Commission. The (expert) Sub-Commission tended to unearth situations for consideration by the Commission, whereas the (intergovernmental) Commission tended either to drop consideration of the situations or, at best, keep them under review. Only rarely did they become the object of sustained study. For historical reasons, the names of countries whose situations are kept under consideration are announced by the chair of the Commission, although such announcements were not originally contemplated by Resolution 1503. It is generally thought that some situations have been dealt with under Resolution 1503 when there would not have been the political will to deal with them in public session, and that the procedure, including the public announcement of reviewed situations, provided at least some pressure on the states whose practices were impugned.

Yet some situations are so appalling that even being taken up under Resolution 1503 would be an inadequate response. This was the case with Argentina in the latter half of the 1970s, where the alleged violations consisted, notoriously, of thousands of enforced disappearances of perceived political opponents of the military regime. There was insufficient political will in the UN to adopt a resolution that would permit a formal, public investigation of the situation. Frustrated with this inability to act, some member states began to a search for an alternative approach to the existing country-specific special procedures.

What emerged was the first of the thematic special procedures. In 1980, the Commission established the Working Group on Enforced or Involuntary Disappearances. The notion was that the group would consider the problem not just in one country, but in all countries. The basic mandate seemed anodyne enough—it was to study the general phenomenon of enforced disappearance. But the working group was also intended to take effective action. On this basis, the group, composed of five individual delegation members (one from each of the UN's five regions), began transmitting allegations of enforced disappearances to the member state in which the disappearances occurred. The allegations came overwhelmingly from nongovernmental sources. The working group would then report to the Commission, country by county, on the allegations received during the previous year, and on any responses received from the governments in question. Thus, although the group dealt with the general phenomenon of enforced disappearance, the procedure was also country-specific. Furthermore, individual cases were taken up with a view to seeking clarification of the fate of alleged victims. Indeed, when individuals were detained in circumstances suggesting that they might "disappear," the group developed the technique of making urgent appeals to the governments responsible for such detentions. These appeals were telexed (later faxed) messages addressed directly to the foreign minister of the state in question. Meanwhile, in countries where there appeared to be a problem of enforced disappearance involving more than just isolated cases, the group sought permission from the state to visit and explore the matter on the spot.

Slowly other themes or categories of human rights violation were accepted as deserving similar attention. In 1982, the Commission created the position of special rapporteur on summary or arbitrary executions, and in 1985 it established a special rapporteur on torture, a development long sought by nongovernmental organizations campaigning against torture, such as Amnesty International. By 2004 there were more than twenty special rapporteurs on a broad range of human rights issues, including such civil and political rights as religious intolerance, the independence of judges and lawyers, and human rights defenders. The creation in 1991 of the Working Group on Arbitrary Detention is of special interest. Given a mandate not just to study the phenomenon, but to investigate cases of alleged arbitrary detention, the group not only comments on country-specific alleged violations, it also has a specific function of assessing whether or not, in its view, a particular detention should be characterized as arbitrary. On the other hand, more recently the Commission has created special rapporteurs to deal with issues in the area of economic and social rights, such as the right to education, to adequate housing and to health, which do not so readily lend themselves to taking action on individual cases.

Human Rights and International Criminal Law

The evolution of machinery to scrutinize states' performance in the field of human rights has far exceeded what might have been expected of international law and organizations by earlier generations, or even at the founding of the UN. Nevertheless, it has still failed to stop repressions that amount to crimes against humanity or even genocide. Nor is it likely that the establishment of an international human rights court could have provided a bulwark against outbreaks of mass atrocity.

In the 1990s, increasing awareness of the problem of impunity for the individual perpetrators of criminal human rights violations gave impetus to almost dormant early UN concern with international criminal law. After the General Assembly's early endorsement of the International Law Commission's draft of the Principles of Nuremberg, it took that Commission till the mid-1990s to complete decades of work on the Code of Crimes against the Peace and Security of Mankind (1996) and to draft a statute for an international criminal court (1994). Meanwhile, having failed to act effectively to prevent atrocities—including acts of genocide in the former Yugoslavia in the early 1990s, and the wholesale genocide in Rwanda in 1994—the Security Council established the first ad hoc courts (the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda) to bring the perpetrators and organizers of those atrocities to justice, regardless of rank or political status. This development can be seen as a political expedient as much as a means for the imposition of justice. Nonetheless, it gave new impetus to the movement toward establishing a standing international criminal court. The time was ripe to embark on the project, and the UN's 1998 diplomatic conference in Rome adopted the Rome Statute of the International Criminal Court.

SEE ALSO United Nations Commission on Human Rights; United Nations General Assembly; United Nations Security Council; United Nations Sub-Commission on Human Rights

Nigel S. Rodley