Human Rights (West's Encyclopedia of American Law)
Basic rights that fundamentally and inherently belong to each individual.
Human rights are freedoms established by custom or international agreement that impose standards of conduct on all nations. Human rights are distinct from civil liberties, which are freedoms established by the law of a particular state and applied by that state in its own jurisdiction.
Specific human rights include the right to personal liberty and DUE PROCESS OF LAW; to freedom of thought, expression, religion, organization, and movement; to freedom from discrimination on the basis of race, religion, age, language, and sex; to basic education; to employment; and to property. Human rights laws have been defined by international conventions, by treaties, and by organizations, particularly the UNITED NATIONS. These laws prohibit practices such as torture, SLAVERY, summary execution without trial, and ARBITRARY detention or exile.
Modern human rights law developed out of customs and theories that established the rights of the individual in relation to the state. These rights were expressed in legal terms in documents such as the English Bill of Rights of 1688, the U.S. Declaration of Independence of 1776, the U.S. Bill of Rights...
(The entire section is 1669 words.)
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Human Rights (Genocide and Crimes Against Humanity)
Human rights can mean different things to different people, but perhaps the best way of defining human rights is to refer to the body of international human rights law that has come into being over the past five decades. Today, there are literally thousands of ratifications to dozens of human rights treatiesoming out of every region of the world. Solemn declarations by political leaders and others reinforce this international legal regime, and there are numerous institutions that have been created to oversee its implementation. The most broadly based treaties are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rightsach of which has been ratified by approximately 150 countries. Regional human rights systems exist in Europe, Africa, and the Americas. Other more specialized treaties deal with human rights violations that center on racial discrimination, women, children, migrant workers, torture, minorities, and labor rights.
The United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was adopted by the UN General Assembly on December 9, 1948, a day before its seminal adoption of the Universal Declaration of Human Rights. The Genocide Convention might be thought of as the first contemporary "human rights" convention, although earlier international treaties addressed concerns such as the slave trade, trafficking in women, and workers' rights.
Genocide is a particular form of mass killing, and it may be the ultimate human rights violation, since it is directed not only against individuals but against the communities to which those individuals belong. In addition, the Genocide Convention codified genocide as an international crime, and placed international legal obligations on states to prevent and punish that crime. This dual characters human rights violation and international crimeenders genocide almost unique; only the international treatment of the crime of torture, which came about much later, is similar.
The Human Rights Content of the Genocide Convention
The Genocide Convention deals only with the most serious kinds of human rights violations, although its adoption in 1948 was a landmark in the evolution of protection for human rights. Today, however, conduct outlawed by the Genocide Convention is also effectively prohibited under later treaties, which do not contain the unique requirement of intent that characterizes the crime of genocide in the Genocide Convention. Thus, genocide would be prohibited today under international human rights law, even if the Genocide Convention did not exist.
The parallels between human rights as articulated in the Genocide Convention and more contemporary definitions of human rights are clear. As defined in Article 2 of the Genocide Convention, the crime of genocide takes in:
- "killing," which would be defined in human rights language as violation of the right to life
- "causing serious bodily or mental harm," which violates security of person and is also likely to constitute torture or inhuman or degrading treatment
- "inflicting on the group conditions of life calculated to bring about its physical destruction," which also constitutes arbitrary deprivation of life
- "preventing births within the group," which interferes with the rights to privacy and family
- "forcibly transferring children of the group to another group," which violates the rights to privacy and family, as well as the rights of the child
The right to life is obviously fundamental to all other human rights. At the same time, however, it is not an absolute concept, and it is only the "arbitrary" deprivation of life that is prohibited in the convention. For example, it is possible to imagine circumstances in which a state's killing of a person would be both morally and legally permissible, and some human rights treaties carefully codify such exceptions. Under Article 2 of the European Convention on Human Rights, for example, a government may execute a duly convicted prisoner (although a later amendment to this convention abolishes capital punishment). In addition, deadly force may be used if it is "absolutely necessary" to protect a person from unlawful violence, to effect a lawful arrest or prevent the escape of a lawfully held prisoner, or to quell a riot. Other treaties, such as the International Covenant on Civil and Political Rights (Civil and Political Covenant), simply prohibit arbitrary killing, implying that there are some circumstances in which the use of deadly force may not be arbitrary and therefore may be justifiable.
There are many difficult concepts that lie at the edges of international formulations of the right to life: Does the right to life imply interventionist duties on the part of the state? Does the right to life affect the issues of abortion or suicide? Is capital punishment always prohibited? Under what specific conditions is the use of deadly force by law enforcement officials permissible? The provision (pertaining to the right to life) in the Genocide Convention, on the other hand, is relatively clear: Killing members of a group identified in the convention is prohibited. Because genocide, as formulated in the convention, also requires an "intent to destroy," genocidal killings are by definition committed deliberately, and attempts to destroy a group and its members cannot be justified under any of the exemptions from the crime of genocide enunciated in other treaties. Indeed, Article 6.3 of the Civil and Political Covenant specifically provides that the covenant cannot be interpreted as taking away from or lessening in any way the
Imposing "conditions of life" calculated to destroy a group also constitutes an arbitrary deprivation of life, even if that imposition is accomplished in an indirect manner. Deliberately starving a population or infecting it with a fatal disease violates international human rights norms; when these deeds are carried out for the purpose of destroying a group protected under the Genocide Convention, in whole or in part, they also constitute genocide.
"Security of person" protects individuals from treatment that might seriously injure them but not cause death. Such treatment is prohibited, whether it occurs while a person is in custody or under any other circumstances. Accordingly, all persons held in prisons or other detention facilities should be treated with respect, whether they have been convicted of a crime or only accused of one.
Domestic law (in many nations) usually prohibits the physical ill-treatment of any persons by government officials, and violation of this prohibition may result in compensation being paid to the victim or to dismissal of criminal charges. The international standard is not as all-encompassing, however, and the usual formulation prohibits only those acts that constitute "torture or inhuman or degrading treatment or punishment." There have been many attempts to shed light on these phrases in court cases, but there is no doubt that the "serious bodily or mental harm" that is prohibited under the Genocide Convention would be included within this broader international prohibition against ill-treatment.
"Rights to family and privacy" are also part of international human rights law, even though they may not be specifically protected under all domestic legal systems. The Civil and Political Covenant refers to the family as "the natural and fundamental group unit of society" and recognizes the right to marry and to found a family. Similar provisions may be found in the African, American, and European human rights conventions. The right to found or raise a family obviously includes the right to have children, and attempting to prevent births against the wishes of the parents would clearly violate international human rights norms.
The right to privacy is specifically articulated in many human rights treaties. It has a public sphere, wherein one's honor and reputation should be protected from the libelous or slanderous statements or actions of others, and a private sphere, which would entail noninterference by government in such matters as lifestyle and the decision to have children. As is the case with other human rights, however, the right to privacy may be restricted to accommodate other legitimate concerns of citizenries; only "arbitrary or unlawful" interference with privacy is prohibited under the Civil and Political Covenant. The regional human rights treaties are more specific, permitting the placement of restrictions on the right to privacy when those restrictions are necessary to protect, for example, national security, public safety, public health, public morals, or the rights and freedoms of others. It is inconceivable that attempts to prevent births within a national, ethnical, racial, or religious group (as prohibited by the Genocide Convention) would fall within one of these permitted restrictions.
The "rights of the child" are referred to in general terms in all of the major human rights treaties. More important, they are now guaranteed by the International Convention on the Rights of the Child (Child Convention), which as of 2003 had been ratified by every country in the world except Somalia and the United States. The basic principles underlying this convention are: (1) the best interests of a child should guide any governmental action that affects that child; and (2) a child's rights and responsibilities should evolve as the child's own capacities evolve with age and maturity.
Under Article 9 of the Child Convention, it is possible for a child to be separated from his or her parents against the parents' will, but only ". . . when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case, such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence." Nothing in this formulation would justify transferring a child from one group to another group, as part of an effort to destroy the group from which the child is taken.
"Nondiscrimination" is at the heart of international human rights law, and the UN Charter itself states that human rights must be guaranteed to all, without distinction as to race, sex, language, or religion. Under human rights law, nondiscrimination is a separate norm, distinct from prohibitions against arbitrary killing or other ill treatment.
Under the Genocide Convention, however, discrimination and the attempt to destroy a group are implicitly linked. This linkage derives from the fact that it is not widespread killing per se that constitutes genocidet is rather the attempt to destroy, in whole or in part, a national, ethnical, racial, or religious group. In contrast to the less restrictive characterizations of genocide that are part of international human rights norms, the Genocide Convention requires that three conditions must be obtained before an act rises to the level of the crime of genocide:  the commission of a prohibited act (killing, transferring children, imposing conditions of life, and so on)  with the intent of destroying a group  of a particular kind, that is, national, ethnical, racial, or religious. This restrictive formulation deliberately excludes from its scope the murder of political opponents and indiscriminate violencelthough the widespread killing of individuals, whether or not the individuals belong to a particular group, surely violates contemporary human rights norms.
The prohibitions of the Genocide Convention are limited to acts calculated to destroy a group physically, and the convention fails to address issues of discrimination or cultural intolerance. Human rights norms have evolved to fill this gap, by recognizing special rights for certain kinds of minorities. Under Article 27 of the Civil and Political Covenant, for example, rights are granted to members of ethnic, linguistic, and religious minorities within states. In Europe, both linguistic and national minorities are protected by conventions and institutions created in the 1990s.
Modern formulations of minority rights include, among other things, the rights of minority group members to use their own language; to practice their own culture; to be educated in ways that will preserve and promote their distinct characteristics; and to participate effectively in the economic and political life of their society. In part, this broadening protection of minority rights is evidence that the mere prohibition of violence against minority groups is insufficient to protect them and to promote tolerance and diversity. But when these rights are respected, in spirit as well as letter, genocide is much less likely to occur.
Implementing Human Rights
Given the fact that the Genocide Convention was adopted in 1948, it is not surprising that it dealt only with the most heinous kinds of human rights abuses. Unfortunately, its early adoption also meant that a consensus could not be reached on how the convention might be implemented effectivelyeyond the purely legal obligations imposed on states when they ratified it.
Today, human rights treaties generally have provisions that require the creation of institutions to oversee the implementation of those treaties. These institutions are usually composed of individual experts, rather than the diplomatic representatives of states, and their powers vary widely. Typically, human rights bodies are given the power (1) to periodically review and comment on reports submitted by state parties, in which the states describe how they are implementing the treaty in question and what problems they have encountered in doing so; (2) to receive, investigate, and determine the validity of allegations, made by individual victims or other state parties, that a state has violated its obligations under the treaty; (3) to investigate and report on the overall state of human rights in a particular country, outside the context of specific complaints; (4) [in the case of conventions on torture] to visit places of detention to ensure that ill-treatment is not occurring; (5) to interpret the treaty, often via the issuance of commentaries on specific rights or the scope of state obligations; and (6) to educate governments and the general public on the content of human rights law.
There are now three regional human rights courts. The European Court of Human Rights is the only permanent human rights body in the world, and every party to the European Convention on Human Rights is legally bound to obey the court's judgments. The judgments of the Inter-American Court of Human Rights are also legally binding (on parties to the American Convention on Human Rights), but acceptance of the court's jurisdiction by those parties is optional. The African Court on Human and Peoples' Rights was created in January 2004, although only a minority of African Union members has thus far accepted its jurisdiction.
Direct means of enforcing human rights treaties, such as the creation of bodies of experts and international tribunals, were unknown when the Genocide Convention was adopted in 1948, and the law that served as a model for the drafters of the convention was that of traditional international law between states. No specialized institution to oversee the convention was provided for, and signatory states are under no obligation to provide reports on their conduct to any international body. Although states are legally required under general international law to abide by their obligations under the convention (pursuant to the doctrine of pacta sunt servanda [promises must be kept]), there is no forum automatically available to complainants that might hear complaints that a state is not fulfilling its obligations. In particular, individuals have no right under the Genocide Convention or customary international law to direct access to an international court or other body that could determine whether their rights have been violated.
Article 9 of the Genocide Convention does provide that disputes between the state parties, including disputes that have to do with the responsibility of a state for genocide that has been committed, or for allowing genocide to go unpunished, can be submitted to the International Court of Justice (ICJ) for resolution. Unfortunately, some states opted out of this provision by filing a reservation to the convention at the time they ratified it; the ICJ upheld this practice in a 1951 Advisory Opinion, even though the Convention does not specifically provide for it.
Despite the many instances of genocide and alleged genocide that have become apparent since 1948, only two petitions alleging a violation of the Geneva Convention have been submitted to the ICJ. Both grew out of the war in the former Yugoslavia in the 1990s, and they were filed against Serbia and Montenegro (by Croatia and Bosnia-Herzegovina). The omissions are only too obvious: Although Rwanda has been a party to the convention since 1975, it has not accepted Article 9 and thus could not be brought before the ICJ without the Rwandan government's special consent. Cambodia is a party to the convention and has accepted the court's jurisdiction, but no state was willing to challenge the conduct of the Khmer Rouge in the late 1970s by submitting a petition to the court, despite the efforts of many nongovernmental organizations to promote such an application.
Human Rights Crimes and Human Rights Violations
It is not uncommon to read references to human rights crimes in the press and other media, and many people view the newly created International Criminal Court (with headquarters in The Hague, Netherlands) as a human rights court. Such references are incorrect, however, and they blur a basic difference between (abrogations of) human rights per se and the international crime of genocide.
The protection of human rights is primarily an obligation of states or governmentshose obligations stemming from international treaties and customary international law. While there are increasing efforts to impose moral or political obligations on corporations and other bodies in the private sphere to respect human rights, the obligation to promote and protect the human rights of individuals over whose lives these bodies hold sway legally falls on states.
Although there are a few exceptions, international human rights law does not generally impose criminal liability on those who may be the individual agents of human rights violations. Neither the policeman who seizes a banned publication, nor the magistrate who sends an accused person to prison after an unfair trial, nor the bureaucrat who discriminates against a religious group in making social welfare payments is committing a crime under international law, even though each of these acts might constitute a human rights violation on the part of the government that the individual agent represents. One of the only exceptions to this principle is the crime of torture, which has been specifically designated as an international crime under both global and regional antitorture treaties.
The other major exception, of course, is genocide. Article 1 of the Genocide Convention begins by affirming that genocide "is a crime under international law which they [the parties to the treaty] undertake to prevent and punish." Articles 5 and 6 specify that states will adopt laws to ensure "effective penalties" for persons guilty of genocide, and that persons accused of genocide will be tried by the state in which the genocide occurred (or by an international tribunal).
The distinctions between human rights violations and individual crimes may help to explain the absence of provision for enforcement machinery in the Genocide Convention. There was no international criminal court in 1948, and one would not come into force until more than fifty years later. Thus, because the criminal prosecutions called for under the convention could only be carried out by national authorities, the drafters may have felt that there was no need to create a new international oversight body.
Treaty formulations of the particularly heinous conduct called genocide have more common ground with the concept of a war crime or crime against humanity, rather than the typical human rights violation. For example, some types of conduct that take place within the context of an armed conflict are criminalized in the 1949 Geneva Conventions, and states must punish those who commit grave breaches of the laws of war. As was true for the Genocide Convention, the 1949 Geneva Conventions set up no new mechanisms to monitor the implementation of the provisions of the conventions, and enforcement was left to domestic law.
More direct international enforcement of international criminal norms was not achieved until 2002, when the Rome Statute of the International Criminal Court (ICC) entered into force. The Rome Statute confers on the ICC jurisdiction over the crime of aggression, war crimes, crimes against humanity, and genocide. Human rights violations per se are not addressed under the ICC Statute, although the crimes it enumerates, if committed or tolerated by a government, would also constitute violations of a state's obligations under international human rights law.
Of course, the impact on victims is the same, whether, technically, they are victims of crime or of a human rights violation. But a verdict of genocide demands that there be an element of conscious intent (to destroy a protected group), which is absent from definitions of human rights obligations. The various international oversight bodies created to monitor the implementation of human rights treaties do not need to inquire into the motives of those responsible for alleged human rights violations. It is enough if government actions do violate international norms; those governments need not also intend to commit the violation.
This element of specific intent is what often leads lawyers and diplomats to contend with one another over whether a situation in which large numbers of people are being killed constitutes "genocide." The presence (or absence) of conscious intent in the human rights context is irrelevant, since "arbitrary" killings are prohibited no matter what their motivation(s). Every state is required to protect people under their jurisdiction from wholesale violations of the right to life, whether or not the deaths result from a discriminatory or genocidal motivation.
At the time it was adopted, the Genocide Convention was a milestone in international law, as it set limits on what a state was allowed to do within its own borders to its own citizens. Today, the international attention that is garnered by the internal affairs of states is familiar. The acts that constitute genocide are now illegal under a variety of domestic and international legal regimes.
At the same time, genocide remains an emotive word, as it evokes the horrors of the Nazi Holocaust and the end-of-century killings in Rwanda. Diplomats avoid its use, fearing the political consequences of identifying murderous events as genocide in instances in which they are unable or unwilling to stop the events. For opposite reasons, activists (oblivious to or wishing to reject genocide's actual definition in the Genocide Convention) attach the label of genocide to almost any killing of an identifiable group of people.
Legalistic and diplomatic debates over what constitutes genocide usually obscure the real question, which isow the international community should react to widespread human rights violations or losses of life, whether or not the criminal actions meet the strict requirements of the Genocide Convention. Today, there is no concrete international law that permits the use of armed intervention in the prevention of serious human rights violations, although Rwanda and the Balkan wars have inspired a burst of scholarly and political commentary on this issue. Those who support intervention in extreme circumstances certainly believe that halting ongoing or imminent genocide justifies the use of force, but the limiting of intervention to genocide as it is defined in statutes may negate or nullify the principle of intervention. There is, as yet, no consensus on what criteria might justify intervention, who should authorize it, and by whom intervention might be carried out.
Despite its symbolic importance, genocide is now only one of many harms that international law seeks to prevent. Whether or not genocide was committed in Cambodia, Ethiopia, or the former Yugoslavia is less important than the fact that government-sponsored terror in these countries resulted in the deaths of millions of people. Rather than argue about what to call the killings, advocates should focus on how to prevent them and how to stop them if they recur. Protecting the lives of those at risk, for whatever reasonnd continuing the daily task of promoting the human rights of tolerance, participation, and free expressions more likely to accomplish the humanitarian goals of those who first sought to outlaw genocide.
SEE ALSO Humanitarian Law; International Law
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