Human Rights And Cases Of Its Violations - Annotated Bibliography Example

148319 General Augusto Pinochet Ugarte of Chile was arrested in 1998 in London from a hospital on a Spanish warrant for having violated human rights during his dictatorship of seventeen years. With this event, a new door opened for the International Law, making the rulers and their henchmen liable to arrest and trial during or after their regimes. This also opens up the possibility of an ex ruler being arrested in an alien country, by their police, for the crimes against humanity, committed in his home country. The charges were dismissed once, but were pursued later again and he was placed under house arrest. This was a landmark happening in the arena of Human Rights as to a very large extent, it ended the immunity of a ruler against violation of Human Rights. Recent hanging of Saddam Hussein perhaps would have had the same effect, but for the flawed law procedures and blatant desire to hang him, irrespective of trial outcome. "Since Human Rights violations are usually committed by state officials, agents or persons otherwise acting "under color" of State authority, State (or sovereign) thus imposes a significant constraint on the use of U.S. courts in civil suits concerning human rights violations committed abroad," http://www.jstor.org/view/00029300/di007418/00p0336n/0 Human Rights violation could be anything from discrimination to genocide, apartheid, holocaust torture, police encounter killings, or illegal executions of political opponents. In United States, The Homeland Security Enhancement Act of 2003 (HSEA) was opposed by Human Rights Watch, a non-governmental organisation committed to upholding human rights because "The CLEAR Act and HSEA require state and local jurisdictions to pass laws or otherwise authorize state and local police forces to investigate, apprehend, detain, or remove non-citizens for civil violations of U.S. immigration law" and if the State refuses to do so, it could be denied federal immigration funds and this was thought to be an extremely highhanded statement. This could lead to arbitrary and erroneous arrests, deportations, and disproportionate fines, unjust and arbitrary deprivations and could increase vulnerability of immigrant women and children to violence, blackmail and abuse. http://hrw.org/english/docs/2004/04/21/usdom8473.htm According to Amnesty International, Turkey is going through human rights violation, as the government officials are routinely carrying out torture and execution not only of political opponents, but also of writers, artists, journalists, who have not adhered to the strict authoritarian rule. This has led to many deaths of suspects who were rounded up without any evidence or proof. "Many allegations of extrajudicial execution have been made against members of Special Operations Teams. These are technically police officers under the authority of the Interior Ministry, heavily armed for close combat with the PKK. Special Operations Team members frequently accompany members of the paramilitary village guard force and gendarmes in security raids on villages. Regular army and air forces also participate in large operations in the southeast" http://www.amnesty.org/ailib/intcam/turkey/turkint.htm Chile, apart from what happened during the dictatorship, has acknowledged the continuous legacy of torture by state officials as it remained a state policy, to some extent, even to this day. An unfortunate legacy to have; but the Presidential Commission confronted the Government with all evidences and proofs and everything was beyond even a modicum of doubt. "The chief of the army, Gen. Juan Emilio Cheyre, anticipated the commission's report in a November 5 article in which he acknowledged for the first time the army's institutional responsibility for human rights violations. He pointed out that the context of ideological conflict and the Cold War might explain but could never justify human rights violations" http://hrw.org/english/docs/2004/11/29/chile9742.htm. Despite this, Police and other armed forces have not been so forthright and refused to commend on the commission's findings. It is equally unfortunate that these officers and many more before them went scot-free without facing any trial or conviction for the heinous crime they had been committing throughout. In an important ruling, International Court of Justice ruled that a Congolese Cabinet Minister has immunity from prosecution by foreign nations for the alleged human rights violations. Unfortunately this will have far reaching repercussions as these ministers and their executing officials do not get convicted by any court of justice. "In leaving the charged issue of "universal jurisdiction" and the permitted scope of its exercise unsettled, the narrow decision may complicate diplomacy and the conduct of international business in numerous ways" http://www.unc.edu/depts/diplomat/archives_roll/2002_04-06/bekkerpell_immunity/bekkerpell_immunity.html It also narrows the scope of international law; but the ruling cannot be faulted, because it could have been a dangerous precedent, if another country had to arrest a visiting foreign minister, whatever his background could be and also the decision, if clearly considered, is only for sitting foreign ministers and it memorably noted that 'immunity does not mean impunity'. The exalted State immunity received a set back when Italian Supreme Court ruled in Ferrini case, that Germany did not enjoy sovereign immunity when it carried out ghastly human rights violations during World War II and this judgement could force a review of the connection between human rights and law of state immunity. International law obliges courts 'to prosecute and punish perpetrators of human rights violators (i.e., to prohibit official immunity for human rights violations); and (2) to ensure victims receive compensation for human rights violations committed against them (i.e., to provide an enforceable right of compensation against the State)" http://www.hrdc.net/sahrdc/hrfeatures/HRF29.htm But the above cannot be executed easily. If one country arrests a leader belonging to another country, there could be an immediate backlash and leaders of all countries could be forced to stay within their own territory. US extend absolute inviolability and immunity from US jurisdiction to all visiting Heads of States and their officials, as the ruling in Robert Mugabe case and the case against Jiang Zemin, Chinese President reiterated. Compensation policy for grave human rights violations is another way of holding violators and states responsible for ghastly crimes. This means that States and judiciary have to verify the way in which a particular order was carried out, who was responsible, what was the order, how was it supposed to be executed, who erred and what was the repercussion and damage. "States have the obligation to investigate and take appropriate measures against individuals responsible for these crimes, as well as provide the direct victims or their close relatives judicial recourse and reparations." http://www.memoriayjusticia.cl/english/en_rights-reparFab.htm There had been many cases in Indonesia where people were killed, maimed, tortured by State officials and their agents. When the cases come for trail, the Attorney General of Indonesia refused to take any action on them, thus providing legal immunity to all state officials and previous/present leaders, which would definitely be an unfortunate trend. "The Asian Human Rights Commission has on numerous occasions stated its own alarm at the lack of action taken by the Attorney General in prosecuting the perpetrators of the 1998 May riots and the student killings in Trisakti and Semanggi which took the lives of over 1000 people, with many others suffering grievous injuries and damage to their property and possessions" http://www.ahrchk.net/statements/mainfile.php/2006statements/849 Recent human rights violations in Chechnya by Russian authorities had been another terrible example of misuse of official power. "Because of the six years long conflict, Chechnya experiences a large scale humanitarian disaster: at least 15% of its population has been exterminated. Torture, extra-judicial killings, death squads terrorizing the population are an every day reality, and now refugees are also forced back to the war zones" http://www.hrvc.net/ In Azerbaijan, many times serious human rights violations were reported, sometimes even though law, and absolutely nothing could be done to the leaders. "The sentencing of seven Azeri opposition leaders caps the government's record of serious human rights violations, flowing from riots over the contentious 2003 presidential election, Human Rights Watch said today. The seven Azeri opposition leaders are widely considered political prisoners" http://hrw.org/english/docs/2004/10/26/azerba9565.htm Viewed from the international law perspective, it was argued that people who committed genocide and serious crimes against humanity, including killing members of a group or harming/injuring them, deliberately bring destruction on them, by imposing measures so that the particular group could not enhance its number, or transferring children from one group to another without parental consent, torture, murder, extermination, enslavement etc. were not entitled for immunity. In spite of this international understanding, even small countries like Uruguay violate human rights as a right of State, and this tradition is particularly disheartening. Human rights, accountability and justice sometimes are at loggerheads with each other in developing and communist countries like Cuba and especially so, in China. State officials, through their mobile vans, execute hundreds every day, in the rural area of China with the State sanction, to keep the Communism unquestioned. With a single media owned by the Communist party, hardly anything ever comes out of China, other than the State approved news. Under Mao, that peace loving region, Tibet, went through a terrible phase of human rights violation by the communist regime of China, controlled by Mao and Zhou-en-lai in the 1950s. In what must have been one of the blackest period of enslavement, this small country went through untold miseries. Communism controlled everything and State actions had never been accounted for. West, focussed on Russian Communism, did not spare a thought for Tibet or the brand of communism that existed in China, which, actually was a much more vicious kind. Both the leaders and their officials should have stood trial before International Court of Justice for bringing such a disaster on those highly religious, harmless people of Tibet. But the champions of Human Rights never cared. Even now it goes unmentioned, because no country wants to jeopardise its relationship with China. Even inside original China, there exists no human rights, though recently there had been some attempts of accountability. "On August 31, 2000, Li Peng-the former Chinese Premier and current chairman of the National People's Congress - was served with notice of a civil lawsuit filed by victims of human rights violations committed during the 1989 Tiananmen protests. Li Peng, who declared martial law on May 20, 1989, not only failed to halt the massacre of unarmed civilians by the People's Liberation Army and the People's Armed Police on June 3 and after, but also congratulated troops for successfully enforcing his martial law order." http://www.hrichina.org/public/contents/articlerevision%5fid=2410&item%5fid=2409 International Law Programme Discussion Group, in its convention in 2005 discussed the restrictive theory of state immunity, because ruler and official immunity stems out of the original state immunity. "The restrictive theory of immunity is reflected in the UK State Immunity Act 1978 and, to some extent, in the provisions of the European Convention on State Immunity to which the former gives effect. The latter was a regional treaty but had, even within that context, failed to attract widespread support" http://www.chathamhouse.org.uk/pdf/research/il/ILP200105.pdf Amnesty International says that Communist countries and dictatorships are the poorest specimens of human rights. Its report says about Communist China: "Political crackdowns continued on specific groups, including the Falun Gong spiritual movement, unofficial Christian groups, and so-called "separatists" and "religious extremists" in Xinjiang and Tibet" http://web.amnesty.org/report2005/chn-summary-eng Even though it is a highly risky, there are many human right defenders in China, who complain of violations in the context of economic reforms. There is widespread violence against women, and sometimes this is state controlled. Political activists and internet users are targeted more and more today. Repression of religious and spiritual groups had been going on by the state for a long time now. Soldiers are permitted to take their own on the spot decisions about the fate of such people. Death penalty is used extensively and arbitrarily, even for ordinary crimes like drug offence, embezzlement, tax evasion etc. Number of death penalties are kept as secret, but it is assumed to be more than 10,000 per year. Torture, arbitrary detentions and unfair trials are very common and people do not expect anything better. Human rights violations in Tibet still are horrendous. State officials are not brought to book in any way and it is a matter of deep regret that international law is a mute spectator here. North Korea, and to some extent, Cuba are not far behind. As there has to be a State Immunity or a Sovereign Immunity, rulers and their officials had been able to take advantage as representatives and that state. State Immunity had come from the judicial practice of individual nations and it has shaped since the days of Natural Law. "The first clear statements of the absolute doctrine of state immunity, rejecting the distinction between public acts and private acts of foreign states, are to be found in English and American case law in connection with foreign public ships and French case-law in connection with contracts and debts of foreign states," Badr (1984, p.34). State immunity got itself transferred into immunity of the head of state and his ministers, cabinet, officials and other representatives and functionaries of the government, without whom the government cannot run. Naturally they have to be immune, so that people could not judicially attack them, because this problem can have two faces and hence, personal immunities are absolutely necessary for the state to function. This also includes the family of a serving head of state. Personal safety of Head of State, Head of Government, and his ministers are completely protected by international law and the fact that they are immune from any proceedings, was confirmed by International Court of Justice. "The consequence of such status was, on the facts before the Court, to confer personal inviolability and immunity fro criminal jurisdiction, with the Court stating that no distinction can be drawn between acts performed by a minister for foreign affairs in an 'official' capacity, and those claimed to have been performed in a 'private capacity'; or for that matter, between acts performed before the person concerned assumed office as minister for foreign affairs and acts committed during the period of office," Fox (2002, p.423). The common law, statute and treaty all combined together to form the state immunity. The State Immunity Act 1978 came into force in 1978 and it ratified Brussels Convention of 1926 and European Convention of 1972. Without State immunity, a state cannot be sovereign and self ruled and this forms the basic necessity of a nation state. Even when this Act did not exist, immunity existed as a matter of mutual consent amongst states. "Until comparatively recent times, it was generally accepted that English law afforded immunity to entities of sovereign status regardless of whether the dispute arose from commercial activity or the exercise of sovereign power," Lewis (1985, p.19). Whatever could be the truth behind Saddam's dictatorship and crimes, it was absolutely clear that he did not get a proper, unbiased trial. Still nothing could be done about the Iraqi Government who conducted the disastrous trial only with the intention of hanging him, and the American administration that supported it. Looking at the sad state of various States and their rulers, who regularly commit crimes against humanity, it is absolutely imperative that United Nations and the member countries should formulate an original law against human right violations, not just in west, but in any part of the world. Human rights do not know race, creed or region and they are common rights of all humans. In the modern day world, human rights have to be guarded to differentiate modern times from darker centuries. It is absolutely necessary to intervene when genocide was conducted in one part of the world. Mute world spectators cannot justify themselves any more. In a rare example, Indian Prime Minister of the time, Indira Gandhi, sent Indian army to stop the genocide in Bangla Desh, when advanced countries of the world turned a deaf year. India did so, after trying hard for a collective action against the human right violators and failing. Human rights and international law have a responsibility to ensure that all state officials and rulers are indicted for blatant flouting of human rights in their country, or in any other country. The war in Iraq is exactly not a model of preservation of human rights, as we have seen from the unfortunate torture of Iraqis, the images of which, could even shame the devil. At the same time, it is very important to find out the real sufferings, without getting influenced by rumours and biased media reports. Before any decision could be taken, there should be complete proof that human rights are being violated in a massive scale and are continuing to be so. What an individual state undertakes to safeguard its own integrity could be its rightful way to existence and need not be always human rights violation. A criminal getting killed in a police encounter, while trying to escape from prison cannot be a human rights violation. It is absolutely necessary for any state to have a free hand in its own affairs and no state could conduct its day-to-day affairs with a Human Rights Commission perched on its shoulder. Hence, advocates of human rights should be entirely clear in their claims. Beyond this, if a government is secretly or openly committing human right violations in a large scale, other countries, through the leadership of United Nations are perhaps justified in asking for accountability and bringing the criminals into justice. Again this should not be dictated by one or two countries like in the case of Iraq. It should be a combined, unbiased, just effort of the United Nations and its member countries. This is a part of International Law that could be misused in many ways. This could be a dangerous law for all rulers, ministers, government officials. This law could be open for misuse, because any individual, with any kind of grudge could file a suit against people in high positions, during or after tenure. Wrong images could be produced by Opposition or unfriendly countries and so, caution, before forming an opinion, is totally important. Again, it should never be an individual effort of a powerful nation. It could be done better, if the task is given to very small countries that have no connection with the accused, or no gain from his downfall. Communist countries and dictatorships are the first ideologies that do not honour human rights. North Korea and China are two countries that need accountability. Cuba is another country that might need another dose of human rights; but here we are unsure of the propaganda and will know the correct picture, if the media pauses for a while. Human rights violations should come under universal jurisdiction and only then leaders and their officials could be held responsible for the miseries they cause to humanity. BIBLIOGRAPHY: 1. Badr, Gamal Moursi (1984), State Immunity, An Analytica and Prognostic View, Martinus Nijhoff Publishers, The Hague. 2. Fox, Hazel (2002), The Law of State Immunity, Oxford University Press. 3. Lewis, Charles J. (1985), State and Diplomatic Immunity, Lloyd@s of London Press Limited, London. ONLINE SOURCES: 1. http://www.jstor.org/view/00029300/di007418/00p0336n/0 2. http://hrw.org/english/docs/2004/04/21/usdom8473.htm 3. http://www.amnesty.org/ailib/intcam/turkey/turkint.htm 4. http://hrw.org/english/docs/2004/11/29/chile9742.htm 5. http://www.unc.edu/depts/diplomat/archives_roll/2002_04-06/bekkerpell_immunity/bekkerpell_immunity.html 6. http://www.hrdc.net/sahrdc/hrfeatures/HRF29.htm 7. http://www.memoriayjusticia.cl/english/en_rights-reparFab.htm 8. http://www.ahrchk.net/statements/mainfile.php/2006statements/849 9. http://www.hrichina.org/public/contents/articlerevision%5fid=2410&item%5fid=2409 10. http://www.chathamhouse.org.uk/pdf/research/il/ILP200105.pdf 11. http://www.hrvc.net/ 12. http://web.amnesty.org/report2005/chn-summary-eng 13. http://hrw.org/english/docs/2004/10/26/azerba9565.htm 14. Read More