Human Rights From Libyan Perspective - Essay Example

?HUMAN RIGHTS: LIBYAN PERSPECTIVE of Question A: Approaches to Tackling Past Human Rights Abuses in Libya According to Clark (2011, p 249), countries which emerge from national conflicts must find their own direction or path of pursuing justice for the crimes committed during the period of the conflict. South Africa for example chose a Truth Justice and Reconciliation Commission at the end of the apartheid rule as the preferred path of pursuing justice for the atrocities committed during white rule. In Libya, the crimes committed during the rule of the slain leader Muammar Gaddafi especially the violation of human rights led to the Libyan Revolution of 2011. The Libyan people need justice and therefore an approach of tackling the abuses of human rights in Libya by the former regime becomes necessary. If the Libyan people reject the Truth Justice and Reconciliation Commission, there are alternatives which would be used to ensure that justice is done for the Libyan people. The national conflict in Libya results from the discounted of the people on the violations of human rights by the former Gaddafi regime. This conflict began with the Benghazi protectors who were apparently opposed to the Gaddafi governance. The protests grew wider and spread throughout the country with the opponents of the Gaddafi regime forming the National Transition Council (NTC). As demonstrated by the work of Nada Ammar, a fellow student, there were extrajudicial killings in Libya during the Gaddafi rule in addition to torture, excessive use of force against the opponents of the government. This was reported by the Amnesty International and therefore shows the urgency for justice for the Libyan people. Emphasis on the atrocities committed in Libya is given by the work of another colleague; Noor Kurdi by illustrating those forces loyal to Muammar Gaddafi committed crimes against human rights in large scale. These crimes included rape, forced displacement, murder and torture which have caused immeasurable mental and physical injuries against the Libyan citizens. If a TJC is rejected by the Libyan people, various legal and non legal alternatives which are based on national, international or regional are proposed as a way of ensuring justice for the Libyan people. The International Criminal Court (ICC) is described by the work of Kat James, a fellow student as the most suitable alternative for the pursuit of justice for Libyans. James argues that the ICC which is based on international law and the Rome Statute because the crimes committed in Libya are within the jurisdiction this international court. According to Scheffer & Cox (2008, p 983), the International Criminal Court as provided by the Rome Statute has jurisdiction on crimes against humanity. Murder, torture, enslavement, forced displacement and rape are among the crimes under which the jurisdiction of ICC falls as provided by Article 7 of the Rome Statute. Since such crimes were committed in Libya, the ICC is therefore justifiable as the best alternative for ensuring justice for Libyan people in case they reject the TJC. Non-legal means through which Libyans would seek justice if they reject the use of TJC includes the role of NGOs such as the Libyan League for Human Rights. These organizations will intervene to ensure that justice is provided for the victims of human right violations in Libya during the Gaddafi regime. Therefore human rights NGOs which are linked to the International Federation of Human Rights (FIDH) are appropriate alternatives in the pursuit of justice in Libya. According to Western & Goldstein, 2011, p. 48), humanitarian interventions of NGOs help to resolve disputes and hence facilitate justice in societies where human rights have been violated by governing regimes. Reparation which is the compensation paid to individuals for wrongdoings is described by McEvoy (2007, p. 417) as a suitable non legal method of ensuring transitional justice in countries where human rights have been violated. Therefore reparations are proposed as appropriate alternatives for providing justice in Libya in case they reject the use of a TJC. Through reparations the victims of the atrocities committed in Libya during the Gaddafi regime could be rehabilitates and compensated so that they are satisfied. Examples of reparations which would be used in Libya include symbolic measures such as disclosure of truths, public apologies and commemoration of victims. As explained by Trumbull (2007, p. 283), domestic amnesty should be given a chance is solving crimes against humanity. This is because amnesty is the most appropriate way of striking a balance between peace and justice. Further more non- legal alternatives are often the best in addressing past wrongdoings without refreshing old enmity which may cause new series of conflicts. Amnesty is defined as an act of restoring the status of those people who are guilty of a crime or crimes so that they are declared. Therefore it can be argued that granting amnesty to perpetrators of crimes against humanity in Libya is one of the best non- legal alternatives that aim at promoting reconciliation in the country. According to (Naidu, 2009, p. 1) memorialisation initiatives are the best non-legal ways of providing transitional justice for crimes committed against humanity. The memory practices are gaining recognition in conflict resolution as the tools of peace building during the transformation process of countries. Memorialisation is defined as collective remembrance forms and processes and thus would be the best alternative for the Libyan people as a non-legal approach of enabling them to recover from past atrocities. Museums and memorials are examples of memorialisation which would be used by Libya by providing important sites which Libyans would use to confront their pasts without resorting to legal alternatives for provision of justice. McEvoy (2007, p. 411) describes vetting as a non-legal method of pursuing transitional justice whereby those individuals who are considered to lack in integrity due to their past unlawful activity are not endorsed to hold public offices. This would be another non-legal alternative for Libya so that the leaders who participated in the atrocities which were experienced during the Gaddafi regime are not allowed to participate in governance any more. However, this method of pursuing justice has faced opposition because the people who commit serious crimes against humanity are considered as requiring punitive action that is beyond being barred from participation in governance. This is due to the fact that some individuals may have an influence on the leadership even though they are not directly involved in governance. National courts in Libya would be an alternative for administration of justice but they have been described by Bolton (2011, p. 20) as lacking adequate expertise and legal infrastructure to try the perpetrators of the atrocities committed in Libya. In addition, the legal system in Libya is likely to be influenced by national leaders. This demonstrates that the national legal system in Libya does not meet legal international standards of law. The preference for the ICC and non-legal methods for the Libyan case as opposed to the regional legal system is due to the fact that the African Court on Human Rights does not have jurisdiction to criminal cases. Question 1 B Ghosh, Newton-Small & Scherer, (2011, p. 34) asserts that with the fall of the Gaddafi regime, Libya needs reforms in its constitution to ensure that political, economic and social cultural rights are adequately provided for in the new constitution. Political reforms are necessary so that democracy is upheld in Libya. Asumah (2010, p. 399) explains that political rights are formulated in constitutions to protect the freedom of individuals from unjustifiable infringement of their fundamental human rights by the private organizations and the government. Therefore needs political reforms in its new constitution which will protect its citizens from the infringement of human rights by the Libyan government and organizations within the country. The objective of including political rights in the new Libyan constitution should be highly prioritized so that decades devoid of democracy of the Gaddafi regime would be brought to an end. The work of Nada Ammar, a fellow student, demonstrates that civil and political rights ensure that citizens are able to participate in the civil and political life without being repressed or discriminated against by the authorities. The right for freedom of movement by the peoples of Libya should be added to the new constitution so that the citizens would be protected for the violations of these rights by the governing authorities and organizations. The Libyan people should be able to move within the country without any victimization by the government agencies. In addition, the right to fair trial in necessary in the new constitution so that Libyans are protected from the unwarranted arrest and detention without being given their rights to fair trial and judgement within the legal system. Moreover, the people of Libya should be enabled to participate in the democratization process through voting as a way of electing their leaders. Therefore the right to vote should be provided in the new constitution of Libya. As explained by Allen, (2009, p. 11), political rights of individuals such as right to fair trial, right to assemble, right of association, right to own property, right to petition, right to self defence, right to holding the government leaders responsible and right to legal remedy are essential within a country’s constitution so that citizens are protected form unjustifiable treatment by the governing authorities. These political and civil rights should therefore be included in the new constitution of Libya. Asumah (2010, p. 401) adds that Besides political rights, citizens of a country must be protected by the constitution through various freedoms. The new Libyan constitution should include freedoms of speech and expression, press, religion, from arbitrary search and arrest, thoughts and conscience. These rights should not be discriminatory and should be guaranteed to all citizens regardless of their race, age, gender, sexual orientation, mental or physical disability national origin, and religion. The work of Noor Kurdi, illustrates that the provision political rights and freedoms in the Libyan constitution will ensure that the Libyan people are protected from abuse by political leaders. The changes which the Libyan Revolution of 2011 brought in the political, social and economic landscape leads to the need for inclusion of various rights in the new constitution. As defined by Chong (2009, p. 184), socio-economic human rights are those rights which facilitate the general wellbeing of the people their daily activities while preventing unlawful treatment by individuals, organizations or governments. As explained by the works of Noor Kurdi, Libya is a signatory to the International Covenant on Economic, Social and Cultural Rights. The rights provided in the covenant are recognized and protected by the provisions international, regional, and national rights. In addition, these rights are recognized by the Universal Declaration on Human Rights by the United Nations. Therefore, the new Libyan constitution should include these rights: right to food, right to protection of family, right to join trade union, right to protection from economic exploitation, right to participate in cultural life, right to religion, right to health, right to housing, right to benefits of science and culture right to education, right to social security, right to rest and leisure, right to a job as emphasized by Allen, (2009, p. 16). The work of Nada Ammar, recommends that the new Libyan constitution should provide for the rights of minorities in Libya so that they are not discriminated against. Therefore the right to linguistic, or ethnic minorities to engage in their culture, use their language, and practice religion, and right to an adequate standard of living are vital and need to be provided for within the new constitution of Libya. Bolton, (2011, p. 24) explains that the Libyan government is obliged to protect the rights of its citizens which should be provided in the new constitution. Furthermore, compensation of victims of violation of human rights by the Libyan government must be provided in the new constitution to ensure that the governing agencies take responsibility for violation of the constitution. Chong (2009, p. 201) asserts that the inclusion of some economic and social cultural rights in a country’s constitution may pose many challenges. Right to employment should not be provided for in the new Libyan constitution because of the challenges it would pose in its implementation. This due to the fact that even though a person has a right to job, the decision on whether he or she should have it depends on the person hiring; this decision is in most cases determined by these factors; qualifications, skills and experience of the person being hired. In Libya, religion has been cited as the basis of discrimination against women as shown by the work of Nada Ammar. Inclusion of the right to association and expression in Libya’s new constitution will most advance the cause of women rights in Libya. This will protect women from exclusion which is based on their sex and hence enable them to enjoy equal rights with men in civil, social, economic, cultural, and political spheres. With the inclusion of this right in the constitution men will no longer have undue advantage in various sectors of Libyan economy. Moreover, women will be enabled to express their thoughts and ideas freely without fear of prejudices in addition to freedom to associate with all members of the Libyan society as demonstrated by Gargarella (2011) Question 2 A: argument against the proposed new convention on the rights of sexual minorities According to Hilpold (2007), minority rights describe the human rights which are accorded to ethnic, sexual, religious, racial, class, and linguistic minority groups to protect them from unjustifiable treatment or discrimination. Sexual minorities include gay people, transgender, bisexual, and lesbians. As explained by Henrard, (2007), the UN human rights treaties protect the rights of sexual minority which is a group whose sexual practices, orientation, or identity differs from the surrounding society’s majority. Stout (2011, p. 34) says that the rights of sexual minority are protected by the UN Universal Declaration on Human Rights (UDHR) of 1948. The Declaration affords every person the rights and liberties provided for in the Declaration regardless of their races, language, skin colour, social origin or other status. This means that the declaration efficiently covers the rights of sexual minorities and there is no need for drafting of a new convention by the United Nations. Hilpold (2007,p. 201) adds that some religious states such as the Vatican argue that bisexual, homosexual, and transsexual orientations are disordered states, and therefore they should not receive more protection as already provided by human right conventions such as the International Covenant on Economic, Social and Cultural Rights. This is because this convention adequately provides for the protection of social rights of all members of the community. Henrard, (2007) explains that the UN Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief protects the rights of all social groups against all forms of discrimination. Therefore it is appropriate that the UN should not adopt a new Convention on the Rights of Sexual Minorities since the existing conventions protect sexual minorities to degree they deserve to be protected. According to the provisions of the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, it is apparent that each person is entitled to equal treatment regardless of his or her background, status or orientations. The provisions of the UN Universal Declaration on Human Rights (UDHR) of 1948 are described by Stout (2011) as being considerate of the rights and freedoms that should be given to individuals in total disregard of different discrimination basis. The convention also protects the rights to privacy of individuals. These rights are therefore sufficient for the protection of the sexual minorities in the society and there is no need for drafting a new convention by the United Nations. Question 2 B: arguments in favour of the proposed new convention on the rights of sexual minorities (Henrard, K 2007, p. 179) argues that UDHR is not universal because countries such as Canada and the U.S have ignored most sections of UDHR provisions on the treatment of sexual minorities. A unifies convention is thus necessary so that the rights of sexual minorities are adequately presented and protected regardless of their country of origin. Moreover, sexual minorities have increased across the world it is necessary for this group to be protected by a universal convention so that equal rights for people of all sexual orientations are upheld. According to Hilpold (2007, p. 182), UDHR has not been updated in accordance to new developments in order to address the sexual minorities’ rights. The UDHR of 1948 was drafted at a time when the issue of sexual minorities was not dominant and most religious groups considered homosexuality as a mental illness or sin. At the time of its publication, homosexuality was considered to be a criminal offense. This means that the provisions of this declaration were based on perceptions of the minority groups which have changed with time. Therefore there is need for a new convention which will remove deficiencies concerning rights of sexual minorities. Hilpold (2007) says that the need for enactment of a new convention for the protection of the rights of sexual minorities is demonstrated by the fact that the existing provisions in the UN conventions are clear that rights of sexual minorities are protected but limited. Therefore the new convention that is being proposed by the United Nations will seek to expand the range of rights that sexual minorities enjoy. This will provide the sexual minorities with more rights concerning how they practice their sexual orientations and therefore uphold the right of individuals from protection of the law against such attacks or interference based on their sexual orientations. The rights of transgendered individuals have not been included in the current UN Universal Declaration on Human Rights. This is the reason why a new convention for the rights of sexual minorities should be passed so that all sexual orientations are protected. The current convention stipulates the rights of homosexuals and lesbians and hence the convention should be updated to cover the rights of the transgendered. Henrard (2007, p. 179) explains that there are serious concerns of how the sexual minorities are oppressed, violated and discriminated against across the world, just because of their gender identity and sexual orientation. The new convention thus will be the best way of ensuring that such oppressions are put to an end. According to Allen (2009, p. 19) The concerns about sexuality and human rights have been necessitated by the need to accord equal rights to all people regardless of their sexual orientation, in addition to the following factors; prevalence of HIV/ AIDS and the necessity to reduce its spread, globalization, and the increased migration concerns. The new Convention on UN rights on sexual minorities is important because it will make a strong claim to the universality of the UN human rights law, which currently is not considered universal since it has failed to address the issue of sexual minorities adequately. This convention will ensure that sexual rights are recognized as human rights thereby enabling all persons to express their sexual orientations without fear of oppression or discrimination. It can be argued that the new convention of the rights of the sexual minorities will be necessary to offer immense transformational potential in the society about how the society views the sexual minorities, hence, reducing or possibly eliminate discrimination against them. Apart from that, the convention will go a long way in helping the sexual minorities to live quality lives; they will be able to access the highest standard of sexual health that can be attained including access to reproductive and sexual reproductive health care services. In this manner the rights of this group will be held along with the general human rights as explained by Stout (2011, p. 44). 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