International Human Rights - Essay Example

Tracking the historical progress of International Human Rights evolution turns our focus to all those aspects that have plagued the human race since inception of human civilisation. Great humanitarians, philosophers, social activists and general people have raised their voice against torture of human beings in different times and also realized the importance of directing this movement in a systematic way. Thus, evolution of the International Human Rights movement can be regarded as a conjoint attempt or implementation of all the humanist ideologies, which evolved from great visionaries at different points of time. Despite ideological difference among these great personalities, they have accepted that it is most essential to build “a world in which all people might enjoy certain basic and inherent rights simply by virtue of being human beings.”1 However, there is no denial that shaping up of the International Human Rights movement as one of the most powerful mediums to claim judicial rights for the oppressed has not been at all a smooth process. Despite several obstacles, success of the mass movements during the 18th and 19th century, in different parts of the world clearly aspired leaders of the movement for further success. The consecutive World Wars of the 20th century, the Cold War and series of civil wars in different parts of the world provided a clear picture to all human beings, irrespective of the apparent factors of discrimination that to which extent forms of brutality can be extended. Such realisation turned out to be the strongest foundation for the International Human Rights movement and contemporary leaders of the movement also found a strong platform that helped them “to champion the cause of international human rights as never before.”2 Currently, the scope of human rights has become so vast and pervasive that legal scholars of this discipline have gone to the extent of claiming it “an inherently multidisciplinary enterprise.”3 Consequently, if a glace can be projected over the range of aspects which have been encompassed by the Universal Declaration of Human Rights UDHR, it can be said that such claim is not an exaggeration at all. The UDHR has brought several issues within its scope, starting from rights to life and all those related issues that support evaluation of such right, protection from torture, presumption of innocence, economic, educational and social security rights.4 It is interesting to see in this context that the UDHR has brought within its scope all those aspects that in someway or the other was exploited by the State to oppress the mass. The UDHR, by including all these issues within a single scope, has actually tried to provide maximum protection against torture for common people at any part of the world. This is one of the most important reasons that the provision “freedom from torture” has given birth to several scholarly discussions as well as reflections within the vast arena of International Human Rights movement. How important is the provision “Freedom from Torture” in the context of International Human Rights movement? Apart from legal scholars, leading jurists also have provided extreme importance to the aspect of protecting this provision. Observing the kind of importance that UDHR has thrust over this provision, legal scholars like, Henry J. Steiner, Philip Alston, and Ryan Goodman have even gone to the extent of commenting, “If one were to ask a representative number of people committed to human rights values which if any right among, say, those declared in UDHR had priority in importance, torture would surely rank high in the list …. ‘If anything is a human right, then it’s the right not to be tortured.’”5 According to the principles of natural law, which has its roots deep within the Holy Lessons of Ten Commandments, God is the creator and sovereign of the world as well as its creatures, including human beings. Consequently, it also suggests that each human being is expected to fulfill three basic duties, namely, “towards others, towards oneself and towards God.” 6 The modern discipline of natural law has differed to certain extent from the ancient observation but it has not differed over the issue that each human being needs to fulfill their respective duties towards self as well as to others. Finally, the aspect of preserving physical life becomes one of the major pillars for the foundation of natural law7 and basic principles of human rights are also standing on the same ground. Unfortunately, if the history of mankind since the inception of 20th century is analyzed, we find that the way law has been used by the State against its people, has no connection with ideological standards. Political arbitrariness is not something new but the most astonishing is despite huge progress in the fields of political and moral philosophy human beings have exercised diverse methods in order to exploit their fellow human beings easily. The UDHR is definitely one of the most progressive steps taken by the International Human Rights movement against such arbitrariness. The kind of torture that common people across the globe encountered during the era of Enlightenment cannot be regarded as an essential feature of the civilised world. Thus the UDHR is widely considered “…the first step towards the abolition of torture in modern times.”8 There is a common notion that torture is essentially physical and any such action that aims at disturbing the mental condition of an individual does not come under purview of the term. In this context, it needs to be remembered that any such actions that disturbs the normal mental condition of an individual will amount to torture, “Torture is a serious violation of the psychical and mental integrity of the person.”9 Inception of the new era has witnessed torture of common people by several means that amounts to both physical and mental torture. It is due to this reason the UDHR has handled the issue of torture, both physical and mental with quite seriousness. At the same time, several other statutes have also been formulated that provide a further stronger foundation to the issue, in the same line with that of the UDHR. Article 5 of the UDHR clearly states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”10 Article 7 of the International Covenant on Civil and Political Rights (ICCPR) has also conveyed the same philosophy almost in the equal terms and in a more specific manner, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”11 If we shift our focus to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF), a dimension opens before us in the context of interpreting the term ‘torture’. The Article reads, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”12 Development of this new interpretation; rather interpretation of the term ‘torture’ received a stronger foundation in the landmark case of Ireland v United Kingdom.13 In order to protect individuals from undergoing inhuman and rigorous treatment from the State, the Commission clearly identified the techniques adopted by the state as degrading as those were capable to “arouse in their victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them and possibly breaking their physical and mental resistance.”14 The most remarkable aspect of this case has been that the Court clearly differentiated between torture and degrading, cruel or inhuman treatment of the victims. According to observation of the Court, torture is nothing but intentional and aggravated form of inhuman treatment of the victims.15 Observation of the Court in this context clearly suggests that several steps, undertaken by the State against its victims can be regarded as inhuman treatment but it would amount to torture only when these steps would be fused with specific purpose, which the State intends to apply for its own benefit. Thus, according to the Court, torture against any individual is the gravest form of all inhuman treatments and all such forms are under immediate need of abandonment for protecting human rights against arbitrary actions of the State and to make the world a better place for survival. Adopting criminal actions in order to suppress criminality has never been successful and in the case, Ireland v United Kingdom16, the Court clearly pointed out to this essential aspect one more time. Aggression of one nation against another not only remains restrained only at the diplomatic or political level but it also creates huge impact over life of common people, most of the times, finally resulting in the violation of human rights. Jurists have also reminded in the context of protecting human rights that onus is not over an individual but to all. In this context James Nickel has poignantly specified, “The feasibility of a general right is typically concerned with the duties or burdens of several parties….an adequate response to the claim- to freedom from torture will involve a high priority duty to refrain from torturing. …an adequate response to the claim- to freedom from torture also requires individuals or institutions that can protect people against torture.”17 Thus, it is a matter of primary importance that both individuals and institutions conjointly raise their voices against arbitrary actions of the state and fulfill their duties respectively so that provisions related to human rights can be protected accordingly. However, torture of state against its victims under the masquerade of public benefit clearly received an important foundation though judgment in the case of Ireland v United Kingdom.18 Jurisprudential observation of this case was of such great impact that new provisions were included in different statutes of human rights across the world. The Human Rights movement in America led to create American Declaration of the Rights and Duties of Man (ADRDM) statute and Article 26 of the same has clearly mentioned, “Every person accused on an offence has the right … not to receive cruel, infamous or unusual punishment.”19 This Article clearly suggests that American human rights jurisprudential rational has not only prohibited the state from executing any form of punishment over its victims that amounts to torture; moreover, it also recognises the basic human rights of convicts and consequently immunes them from being oppressed by any other forms of punishment that may amount to the degree of unusual or infamousness. Crime against humanity and torture over war prisoners or common civilians in the 20th century took such horrible shape that, International Human Rights movement came up with drastic amendments in the existing statutes. It has been repeatedly emphasised that maintaining World Peace and complete freedom from torture cannot be attained unless individuals come forward and raise their voice of protest against such acts. Any such act that violates the harmony of human existence was regarded as crime against peace and execution of the jurisprudential rational, namely, ratione materiae and ratione personae were provided with a great deal of importance to measure the magnitude as well as “applicability of crime against peace”.20 Certain political and diplomatic principles argued against the progress of International Human Rights movement in the context of freedom from torture and maintaining world peace that a simple threat of aggression that can lead either party in an act of warfare to surrender will not lead to criminality. In this context, proceedings of famous Nuremburg Trial become important. According to the legal principles of this ground breaking judgment, “crime against peace may be committed by mere threat of aggression, if the weaker country ‘succumbs without the necessity of a “shooting war.”’”21 At the same time, according to the principles of ratione personae, mere “waging of war of aggression” amounts criminal activism against peace and every participating individual on behalf of the aggressor party automatically becomes criminal in the eyes of human rights and all the related legal proceedings.22 In this context trails of “Furundzija” and “FOČA”, where Kunarac, Kovač & Vuković: these three leaders of military force were tried by the ICTY (International Criminal Tribunal of the former Yugoslavia) held guilty for their crimes against humanity by the means of inflicting physical and mental torture as well as outrageous behavior against human dignity.23 The scope of human rights- its legal purview, for the protection of human rights and providing immunity to them from all kinds of abuses, extended to such an extent that head of the states were also not excused. Prosecution of Augusto Pinochet and his subsequent appeal for immunity from prosecution is a brilliant example that conveys the explicit truth that no matter how much powerful an individual is but his place status cannot be larger than universal nature of human dignity and he does not have any right to violate that dignity by the means of inflicting torture over people. The cases, R v Bow Street Metropolitan Stipendiary Magistrates, Ex P Pinochet ugarte and R v Bow Street Magistrates, Ex P Pinochet, are excellent examples in support of such observation.24 In these cases several issues have been discussed by the jurists, appointed to deliver judgment on this case. However, when it comes to discussion of these cases under the light of “freedom from torture” provision, whether Pinochet received immunity or not that becomes a secondary issue; rather the most important aspect that attracts highest attention that he had been tried and proved to be a guilty of abusing humanity, breaching the provisions of human rights. Thus, in the final case R v Bow Street Magistrates, Ex P Pinochet25 , Lord Phillips of Worth Matravers vehemently criticises Pinochet in the following words, “There can be no doubt that the conduct of which Senator Pinochet stands accused by Spain is criminal under international law. … It is further accepted that officially sanctioned torture is forbidden by international law.26 This landmark case clearly points out to the fact that power, political supremacy or military power does not immune an individual from being accused in the eyes of human rights. Freedom from torture and enjoying a peaceful social existence are basic rights of every individual. Any power that aims at violating such rights will automatically become a criminal in the eyes of legal purview of human rights and their conviction will be delivered accordingly. Despite implementation of statutes like, the UDHR or the ICCPR, as the contemporary statutes did not provide a clear definition of the term torture, several ambiguities were coming up. In order to avoid such confusions and vagueness, the term ‘torture’ has been provided with an internationally acknowledged legal definition. According to this definition, “…an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”27 As the United Nations Convention against Torture 1984 (UNCAT), Article 1 provided a clear definition of torture, it became easier for the tribunals and courts to determine at once whether an act of punishment will amount to torture, unusual punishment or inhuman treatment. In the context of applicability of the torture convention an important aspect needs to be mentioned that despite the landmark case of Ireland v United Kingdom28, was of immense importance in the context of providing protection to common people against torture but application of this convention only started in the year 1984, only after Article 1 of the UNCAT specifically mentioned the definition of torture in strict sense of the term. Prior to this period, as there was a considerable amount of dispute regarding proper definition of torture, due to absence of a legally formulated convention, its universal application was not done. However, after the UNCAT provides a clear definition of torture within its scope, actual importance of the Ireland v United Kingdom,29was actually realised in the context of protection from torture. The main purpose of UNCAT was to protect one of the basic human rights that no individual becomes subject to torture or any form of degrading or inhuman treatment. In order to ensure this aspect, The Committee against Torture was formed; consequently, a great deal of focus has also been provided to the Inter-state communication issue so that citizens can freely lodge complains against arbitrary actions of the state. Such initiatives from UNCAT gave birth to the Convention Against Torture (CAT) in the year 1984 which elaborated the importance of viewing torture as a discrete crime and not only as war crime or crime against humanity. Due to the dynamism for protection from torture the parties in such convention were bound to come up with domestic criminal jurisdiction against the crime of torture and provide adequate legal support to the aggrieved party. The recent Bybee Memorandum (2002) of the United States is another important instrument, which clearly shows the kind of importance both nations and the international tribunals are providing to the issue, protection of freedom from torture. A great deal of criticism has been launched against provision of the memorandum as it provides enough power to the administration when it comes to interrogating prisoners in such a manner that would lead to violation of the provision: freedom from torture. According to provisions of the memorandum, an act can only be regarded as torture if the victim suffers from pain so intense that can cause his death or any kind of permanent damage of his organs or failure of organs. In case of mental suffering the memorandum permits administrative personnel to cause such suffering which can create long lasting mental harm.30 Section 2340 of the memorandum also specifies the degree of pain caused to the victim, which can be said severe, “the level that would ordinarily be associated with sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions….”31 The main reason against such huge criticism against this memorandum is that if these provisions are followed then there would be abundance of human rights violation. This observation receives a stronger foundation as Henry J. Steiner, Philip Alston and Ryan Goodman have clearly suggested, “This memorandum concerned standards of conduct for interrogation of detainees outside the United States under the Torture Act, 18 USC … implementing the Convention against Torture (CAT) and the provisions for grave breaches in the Geneva Conventions.”32 As the International Human Right movement activists have tried to receive an overview of the victims and their treatment by respective states in different parts of the world, it has been found that position of Human Rights has become much better among the developed nations but in the developing nations, especially in the countries of Latin America or African continent. Among these places incidents indicating abuse of human rights were abundant,33 especially the nations that were functioning under military rule, such as, El Salvador, Bolivia, Guatemala, Chili and Haiti, there were numerous such examples that clearly indicated to the fact that issues related to human rights are not receiving proper protection. Separatist movements in different parts of Africa were also taking violent shape during this time and conflict between state and separatists became a common incident. Observing the tremendous derogation of human rights and the kind torture people suffered both in Latin America and Africa, the activists of International Human Rights movement felt that to protect the basic rights for common people stronger initiative are required. The World Conference on Human Rights in Vienna in the year 1993 acted as an active platform, where the participating nations unanimously protested against and also condemned the torture that were inflicted by political institutions over common people. Magnitude of human rights abuse during the World War II was so high that attempts to provide protection against torture to common people initiated with the Geneva Conference I (1949). The Human Rights activists in the Geneva Conference admitted that women and captured soldiers, in an act of warfare are used by the opposition as subjects of torture not only to gain strategic approaches of the confronting party but also to discourage them morally and with the help of Article 12 and 50, they took an active step so that these kinds of tortures can be cased immediately. Article 12 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, 12 August 1949) asserts that members of armed forces as well as all those personnel, wounded or sick must receive all sorts of protection and should also be treated in a humanly manner. They should receive complete immunity from being tortured or murdered or as subjects of biological experimentations. Special care shall also be granted to women and they must also be treated respectfully.34 Article 50 of the Convention also clearly points out the consequences if these aspects are not followed properly by the nations engaged in an act of warfare or political conflict, then each of such acts will be addressed with legal authority and people involved in such acts will also be prosecuted under legal jurisdiction of human rights.35 Implementation of these articles for the protection of Human Rights at the International level reasserts the aspect that protecting and fighting for human rights is a mutual duty and without benevolent participation of all human beings, irrespective of their apparent factors of discrimination, it is not possible to attain the desired goal. The Second Geneva Conference in the year 1957 provided further protection to the issues of human rights through focusing over protecting rights of people, who will be shipwrecked (under Article 12. Provision of this article immunes “shipwrecked” people from any form of inhuman treatments and it also attempts to ensure that they should also receive the same kind of protection or treatment as captured soldiers in an act if warfare.36 Article 51 of the same conference elaborated consequences if these issues are disobeyed by any nation and in this section the new article echoed the same philosophy as it has been reflected in the 1949 conference. The following Conference (Geneva III) tried to ensure further protection to all those people will become prisoners of war and this conference also provided adequate focus over protecting self-respect and honor of the prisoners. Articles 13 and 14 of the Conference, thus, elaborates, not only immunity of prisoners on the grounds of physical torture but it also brought within its scope all those issues that can amount to psychological torture of people belonging to this category. These Articles of the Geneva Conference III are extremely important because these have not only provided immunity to both soldiers and women from any such acts of torture, including vengeance or reprise that would lead to cause them physical or mental harm but it also ensures that they must also receive complete “civil capacity” during the tenure of their capture.37 In addition, Article 14 also ensures that; “The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires.”38 Compared to the two preceding Conferences in the year 1949 and 1957, the 3rd Geneva conference is of further and more elaborate effect as it has tired to fill up; rather bridge the lacunas of the previous resolutions. Development of this kind and vastness of its scope clearly elaborate that nations across the world, both developed and developing were providing immense importance over the aspect of protecting human rights, mostly “freedom from torture” of the common people for the sake of a brighter future. Article 130 of the 3rd Geneva conference (Grave Breaches of the provisions), points out this aspect in a more elaborate manner.39 Developments in the arena of International Human Rights movement clearly point out to the fact that torture over human beings, especially convicts of the war and women, who remain at the most vulnerable stage in both physical and psychological way, is a major area of concern for human rights activists. Amendments made in the three consecutive Geneva Conventions, clearly point out to the fact that with each amendment, the International Human Rights movement was trying to grant more protection to common people from the risk of being tortured. At the same time it has also attempted to fill up the loopholes to the best extent, within the domain of human rights legal protection to such an extent so that maximum protection can be granted to common people from being tortured. Despite all these remarkable developments in the field of International Human rights protection and movement it cannot be said that each of the issues related to human rights or its violation are adequately fulfilled in parts of the world. Economic impediments, lack of individual willingness and political interferences are major reasons that have acted as impediments in the path of fulfilling all proper implementation and execution of these resolutions. Additionally, lack of knowledge regarding availability of these protective rights is another important reason that issues of grave human rights violation are not properly addressed. However, keeping in mind all these drawbacks, there is no scope to deny that International Human Rights movement has covered a long way towards ensuring the entire mankind of a bright and prosperous existence. Bibliography Books: Brunnée, J. Kindred, H.M. and Saunders, P.M. International law, chiefly as interpreted and applied in Canada. (Emond Montgomery Publication 2006), 7th Edition. Dinstein, Y. War, Aggression, and Self-Defense. (Cambridge University Press, 2001), 3rd Edition. Donnelly. J. Universal Human Rights in Theory and Practice. (Cornell University Press 2003). 2nd Edition. Goodman, R. Alston, P. and Steiner, H.J., International Human Rights in Context: Law, Politics, Morals : text and materials. (Oxford University Press US 2008), 3rd Edition. Gordon Lauren. P. The Evolution of International Human Rights: visions seen. (University of Pennsylvania Press 2003), 2nd Edition. Jackson, D.W. The United Kingdom confronts the European Convention on Human Rights. (University Press of Florida 1997) Jayawickrama, N., The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. (Cambridge University Press 2002) Schröder, P. and Hochstrasser, T.J. Early Modern Natural Law Theories: Contexts and Strategies In The Early Enlightenment. (Springer 2003) Smith, R.K.M. Textbook on International Human Rights. (Oxford University Press 2007). 3rd Edition. Articles: Nickel, J. “How Human Rights Generate Duties to Protect and Provide”. 15 Hum. Rts. Q. 77 (1993), p. 80. “Memorandum for Alberto R. Gonzales, Counsel to the President”, Aug. 1, 2002. Office of the Assistant Attorney Websites: “Universal Declaration of Human Rights” (United Nations Human Rights), New York: United Nations Department of Public Information, available at: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng. Accessed on: 7th January 2010. “The United Nations International Covenant on Civil and Political Rights”. Available at: http://www.hrweb.org/legal/cpr.html. Accessed on: 7th January 2010. “OAS Declaration of the Rights and Duties of Man”. Available at: http://www.hrcr.org/docs/OAS_Declaration/oasrights4.html. Accessed on: 7th January 2010. “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”. Available at: http://www.hrweb.org/legal/cat.html. Accessed on: 7th January 2010. “Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.” Available at: http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/fe20c3d903ce27e3c125641e004a92f3. Accessed on: 7th January 2010. “Geneva Conventions Act 1957 - Schedule 2”. Available at: http://www.austlii.edu.au/au/legis/cth/consol_act/gca1957208/sch2.html. Accessed on: 7th January 2010. “Geneva Convention Relative to the Treatment of Prisoners of War 12 August 1949 - Entry into force: 21 October 1950”. Available at: http://www.tamilnation.org/humanrights/genevaconventions/geneva3f.htm. Accessed on: 7th January 2010. Case Law: “Furundžija, A.” “Lašva Valley” (IT-95-17/1), Available at: http://www.icty.org/x/cases/furundzija/cis/en/cis_furundzija.pdf. Accessed on: 9th January 2010. “Kunarac, Kovač & Vuković”. “Foča” (IT-96-23 and 23/1). Available at: http://www.icty.org/x/cases/kunarac/cis/en/cis_kunarac_al_en.pdf. Accessed on: 9th January 2010. R v Bow Street Magistrates, Ex P Pinochet, (2000) 1 AC 147 House of Lords Delalic (IT-96-21-T¬) Trial Chamber, 21 February 2001. Available at: http://www.bailii.org/uk/cases/UKHL/1999/17.html. Accessed on: 9th January 2010. Ireland v United Kingdom, European Court of Human Rights, 1978, 2 EHHR 25. Available at: http://www.worldlii.org/eu/cases/ECHR/1978/1.html. Accessed on: 9th January 2010. Read More