Convention against Torture and Other Cruel - Essay Example

Convention Against Torture and Other Cruel Introduction Human rights are a concern globally, and there are a number of organizations that advocate on behalf of those whose rights are being violated. Among these are intergovernmental organizations, which are organizations that are established by treaty, “usually composed of permanent secretaries, plenary assemblies involving all member states, and executive organs with more limited participation” (Alvarez, 2006, p. 324). IGOs engage in treaty-making; encourage international lawmaking to become democratized by including more states in making treaties, not just the civilized states; instigate and enforce international law; and empowering NGOs and other non-state actors to act in advocating for victims of human rights abuses (Alvarez, 2006, pp. 324-335). States rely on IGOs to fulfill their national goals, and are constrained by these organizations. Moreover, state participation in IGOs often transforms the internal structure of the governments involved, such as when they induce states to establish medical authorities to respond to requests by the World Health Organization, and induce states to give effect to its warnings on global warming (Alvarez, 2006, p. 335). Non-governmental organizations are other actors on the global stage. NGOs are organizations that bring out the facts about human rights abuses, as well as contribute to setting standards regarding the implementation, promotion and enforcement of human rights norms (Steiner & Alston, 1996, p. 456). Because governmental agencies might be hesitant to call out other governmental agencies, for a range of reasons that concern diplomacy, NGOs are considered to be a necessary part of spreading the word about human rights abuses, and advocating for reform. If they do not get involved and put pressure upon the government in question, then the chances that the particular human rights abuse would continue greatly increases (Steiner & Alston, 1996, p. 456). Among their duties is that of mobilizing public opinion and lobbying the government for its support. For instance, many of their activities focus on the preparation of reports, distributing these reports and providing them to the media, and using these reports to lobby government (Steiner & Alston, 1996, p. 472). NGOs consists of organizations that are independent of the state. Among these organizations are labor unions, consumer unions and industrial associations, which advocate for economic concerns; racial, gender and religious groups; groups that are issue-oriented, such as environmental or educational organizations; groups that advocate for the elderly or the young; public interest groups who may be for universal health care or against corruption; etc. (Steiner & Alston, 1996, p. 457). NGOs have a variety of strategies at their disposal, as far as the reformation of human rights abuse. One strategy would be to use the country’s domestic law. This has the advantage of being politically expedient, as using a country’s own law is seen as carrying more politically clout than using an international standard, as using international standards are often seen as intrusive to a country’s people. However, oftentimes countries might not have very progressive domestic laws when it comes to human rights. In that case, a better strategy would be to use international standards to attempt to make that country reform (Steiner & Alston, 1996, p. 458). NGOs must be impartial to be effective – in other words, they must not be affiliated with a certain political party. In other words, the group cannot be beholden to one particular party, or else that group will not investigate abuses perpetrated by that party. This was a concern in Nicaragua, where there were many groups who claimed to speak for human rights, then actually these groups were a shill of one party or the other, and each party was using these groups as a weapon against the other party (Steiner & Alston, 1996, p. 459). Consider the evolution of the notion of INTERNATIONAL CRIMINAL JUSTICE and the creation of the ICC as a case study to assess the impact and import of actors exercising formal power in the international arena to promote, protect and defend human rights. International criminal proceedings did not come into fruition until after World War II, although there was discussion of forming them after World War I (Forsythe, 2006, p. 91). The proceedings were formed in order to prosecute Nazi war criminals, but there were considerable problems with these proceedings, which were created by the Nuremberg tribunal, and Tokyo saw similar proceedings. The main problem was that only leaders from the losing sides, Japan and Germany, were tried, while leaders from the Allied forces were not tried, despite the fact that they, too, engaged in atrocities, such as attacking cities, thus failing to distinguish between civilians and combatants. Soviets engaged in rapes, yet were not tried and sat in judgment of the Germans at Nuremberg (Forsythe, 2006, p. 91). Through the years, international criminal courts were attempted. One such attempt came in 1991, when the International Criminal Tribunal for the former Yugoslavia (ICTY) was formed to prosecute war crimes by the former Yugoslavia. However, since the ICTY was formed while the fighting was going on, it was found to actually impede peacemaking, as the two sides had motivation to keep fighting, in order to not be subjected to this court (Forsythe, 2006, p. 98). Another court, formed to investigate Rwandan atrocities, called the International Criminal Tribunal for Rwanda (ICTR) was plagued with corruption, lack of support, mismanagement and hostility (Forsythe, 2006, p. 104). Thus, for the years between the Nuremberg and Tokyo trials at the end of World War II and 2002, there were no effective international criminal courts, and there were no international criminal courts that were permanent. Therefore, there was not a consistent way of punishing individuals and states that were guilty of the very worst of human rights abuses. Given that international criminal courts were non-existent or ineffective, states were free to continue with their human rights abuses, without having to fear facing criminal retribution, and states were free to attempt to cover up their bad acts. The formation of the International Criminal Court (ICC) changed all this. The International Criminal Court (ICC) is an institution that is permanent and independent, and was established “to investigate and prosecute individual perpetrators for the worst crimes: genocide, crimes against humanity and war crimes” (Gready, 2004, p. 104). The court was created through the Rome Statute which was adopted when the diplomatic conference held in Rome, Italy in June-July 1998 concluded. It has its roots in World War II, where the genesis for such a court began, then picked up steam by the United Nations at the end of the Cold War. The United Nations was at the center of the development of this court, as it provided the procedural framework for the ICC, and offered a platform through which NGOs and like-minded governments were able to partner. This, in turn, invited and empowered thousands of NGOs from around the world to input their expertise and experience into the process of creating the court. The NGOs, being a part of the civil society, was able to push for accountability and push for the highest legal standards to underscore the process (Gready, 2004, p. 105). At the same time, the NGOs who formed a Coalition for the International Criminal Court (CICC), were able to bring transparency to the process of forming this court by distributing public information worldwide about the process (Gready, 2004, p. 105). The framework and the partnerships in turn inspired small and middle-sized states to form an informal coalition of their own, called the like-minded group (LMG) (Gready, 2004, p. 105). Crucial to the impact of each of these courts are the testimonies of those willing to bear witness (Kurasawa, 2007, p. 26). These are the individuals who were determined to survive so that they may tell others about the abuses that have been perpetrated, and, through their words, were enabled the tribunals to obtain convictions of the worst perpetrators of human rights abuses. Without them, the convictions that were obtained in not just the ICC, but the ICTY, the ICTR and the Nuremberg and Tokyo trials before them would not be had, and for this reason “international criminal tribunals and truth and reconciliation commissions sanction the institutionalization of bearing witness as a way of moving forward after mass trauma” (Kurasawa, 2007, p. 27). Thus, these actors forming the coalitions and partnerships helped usher in a new era of enforcement against human rights abuses, and the brave individuals willing to participate in these trials enabled convictions of those guilty of human rights abuses. Whereas before there was not a consistent court to punish the perpetrators of the very worst types of abuses, and these abuses were often subjected to national courts with the attendant national pressure, the ICC circumvented these problems by forming a court that is at the center of consistent justice meted out by consistent standards. In this way, these actors were important in bringing about a way to protect humans against abuses, because the perpetrators of these abuses now know that they can and will be subject to justice. Landmine Ban – What Standards Exist, How are They Enforced, What Actors are Involved, and Are They Effective? The attempts to ban landmines began in 1980, with the 1980 Certain Conventional Weapons Conference, which, with its protocol on landmines and booby traps, banned the indiscriminate use of landmines, and modestly restricted remotely deliverable mines. Despite the protests by the International Committee of the Red Cross (ICRC) and NGOs that these standards were too weak, the convention was ratified (Gready, 2004, p. 80). Ths CCW was weak for other reasons as well – for one, it did not cover civil wars; for another, it did not foresee technological advances such as non-detectable mines and anti-handling devices. Then, in 1991, the International Campaign to Ban Landmines (ICBL) sprung up among NGOs from different countries. The 1993 London Conference brought together 40 NGOs to strategize a ban, with the objectives of banning the international use, production, stockpiling and sale or anti-personnel mines; establishing an international fund that would aid landmine awareness, clearance and eradication programs globally; and ensuring that the countries with the landmines contributed to this fund (Gready, 2004, p. 81). The ICRC also got involved, publishing, in 1992, a publication entitled Mines: a perverse use of technology (Gready, 2004, p. 82). It called for a responsible use of landmines “including the development of self-destruct and self-neutralizing mechanisms, halting the use of non-detectable mines and calling for forces employing mines to be responsible in their removal” (Gready, 2004, p. 82). Moreover, the ICRC initiated expert conferences, which collected facts about the use of mines, analyzed the mechanisms used by the mines, and strategized future action. The ICRC called for a total ban on landmines, despite the testimony from military personnel that such a ban was unworkable, and that civilians were no more at risk from landmines than other conventional weapons (Gready, 2004, p. 83). The UN was also integral in the landmines ban, as the Department of Humanitarian Affairs called for a total ban, as well as the United Nations Children’s Fund (UNICEF) and the UN High Commissioner for Refugees. This demonstrated that the UN had become, through its agencies, a vocal member of the international campaign to ban these mines (Gready, 2004, p. 83). States such as the United States and the European Union also took the lead on this matter, as the United States instituted a one year moratorium on the sale, transfer and export of landmines in 1992, and Senator Patrick Leahy successfully lobbied other countries to observe the same moratorium, 15 countries in all, and the European Union went even farther, passing a five-year moratorium (Gready, 2004, p. 84). These actions led up to meeting and conferences in 1994 to 1996 that discussed these mines. The opposition was firming up among NGOs and the UN and states, while those advocating continued use argued that the solution was not a ban, but the use of “smart mines” that would self-neutralize. This solution was not feasible, however, because less technologically advanced countries would not be able to produce these “smart mines,” and proponents of a total ban did not countenance this idea because active mines were still a danger to civilians and self-neutralization methods were unreliable (Gready, 2004, p. 85). These meetings and conferences did bear fruit, as 40 countries endorsed a comprehensive ban, while others were enacting a moratorium, while still others were renouncing mines and destroying their stockpiles. The ICBL, the ICRC and the UN agencies continued to push for a global ban after the conferences and meetings from 1994-1996, which led to the Ottawa Process, which sought a total ban. This led to a treaty banning landmines in Oslo in September of 1997, with 122 states signing the Convention in Ottawa. The standards that were enacted by the ban are that the signing countries to the Convention in Ottawa agree not to use, stockpile, produce or transfer anti-personnel landmines (Gready, 2004, p. 89). Thus the organizations involved with this process were highly effective, as it took just five years of advocacy to get a treaty signed banning landmines. 148 countries had signed and 136 had ratified as of 2000, while even countries who did not sign, such as the United States, Russia and China have modified their behavior by ceasing the exportation of mines, among other steps. Gay, Lesbian, Bi-Sexual and Transgendered Rights - What Standards Exist, How are They Enforced, What Actors are Involved, and Are They Effective? Individuals who are gay, bi-sexual or transgendered suffer much discrimination and hatred around the world. In Iran and Afghanistan, these individuals can be put to death, and in Zimbabwe, gay men have received lengthy prison sentences (Donnelly, 2003, p. 230). In Romania, two men were beaten, prosecuted and imprisoned for holding hands, while in India, two men were arrested for trying to marry while the religious leaders called for their execution, while in Egypt gays are sent to prison (Donnelly, 2003, p. 230). In these countries, where homosexuality is a punishable offense, fear is created and vigilante groups are encouraged. In some countries, death squads target homosexuals, while in other countries, gays are murdered without the state doing anything about it (Donnelly, 2003, p. 231). Even in countries where violence is not state-sanctioned or tacitly condoned, gays still suffer from employment and housing discrimination, and restricted access to public facilities and social services (Donnelly, 2003, p. 232). In South Africa, lesbians are raped because the man wants to “show her she was a woman” (O’Flaherty & Fisher, 2008, p. 210). Different organizations have mobilized to address these concerns. Among these are Stonewall, which acts as a conduit of information for these concerns, as well as promoting non-discrimination and challenging hatred (Stonewall.org); Human Rights Campaign, which has a political action committee that works to give a voice to GLBT in the legislature and courts (HRC.org); the Arcus Foundation, which presses for GLBT equality around the world (Arcus.org); Global Rights, which exposes abuses of GLBT around the world (globalrights.org); Human Rights Watch, which exposes issues and advocates for GLBT in the areas of unequal treatment and abuse (HRW.org); and Amnesty International, which fights for human rights, including GLBT (Amnesty.org). Different covenants and committees have tangentially referenced sexual orientation as needing protection. The Committee on Economic Social and Cultural Rights (CESCR) and the Committee on the Rights of the Child both prohibit discrimination, locating sexual orientation under the catch-all “other status” (O’Flaherty & Fisher, 2008, p. 235). The Committee on the Elimination of Discrimination Against Women (CEDAW) has addressed sexual orientation by criticizing regimes that criminalize sexual orientation. These are, on the whole, pretty tame and toothless provisions, which shows that even human rights covenants are hesitant to protect sexual orientation. However, the Human Rights Campaign (HRC), which is the monitoring body under the International Covenant on Civil and Political Rights does address discrimination, at least several cases have interpreted it as such. These cases, including Toonen v. Australia, Young v. Australia, and X v. Colombia have all cited the HRC, stating that the HRC protects individuals from discrimination based upon sexual orientation (O’Flaherty & Fisher, 2008, p. 217). Another institution that recognizes discrimination based upon sexual orientation is the European Court of Human Rights (ECHR). Cases involving discrimination and privacy rights with regards to sexual orientation have been brought before this court, with mixed results. Some cases found discrimination, such as in Salgneiro da Silva Mouta v. Portugal, which found discrimination when a natural father was denied custody rights due to his sexual orientation; Katner v. Austria, which found discrimination when a homosexual was not allowed to occupy his deceased partner’s flat; and S.L. v. Austria, which found discrimination in the Austria’s differing ages of consent for heterosexuals and homosexuals (O’Flaherty & Fisher, 2008, p. 219). In Dudgeon v. United Kingdom, Norris v. Ireland and Modinos v. Cyprus, the court found that criminalizing homosexual conduct violated privacy protection under Article 8 of the ECHR. Conversely, in Prette v. France, the court ruled that a refusal to allow homosexuals to adopt a child proper (O’Flaherty v. Fisher, 2008, pp. 219-221). The ECHR has also held that marriage is for two people of the opposite sex, although an individual who has had a sex change is free to marry somebody who is a member of the now opposite sex (O’Flaherty & Fisher, 2008, p. 225). Moreover, NGOs who work for equality and non-violence for gays, lesbians, bi-sexuals and transgendered have increasingly faced difficulties in stating their case. For instance, a representative of the International Gay and Lesbian Human Rights Commission was denied a voice in a special assembly on HIV/AIDS, while the International Lesbian and Gay Association was denied accreditation by the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, following an objection by Muslims in Malaysia (O’Flaherty & Fisher, 2008, p. 229). States have also had difficulty promoting human rights for sexual orientation, such as when Brazil presented a resolution condemning human rights abuses against people with differing sexual orientation to the UN Commission on Human Rights in 2003. Other states put pressure on Brazil to defer the resolution until 2004, then pressured again in 2004 to defer the resolution, then, when Brazil did not push for the resolution in 2005, it was dropped (O’Flaherty & Fisher, 2008, p. 230). However, Brazil did manage to raise consciousness, and several NGOs from different states mobilized for resolutions, which culminated in the adoption of the Yogyakarta Principles, consisting of 29 principles regarding discrimination based upon sexual orientation, including the right to be free from violence and torture; the right to be free from discrimination in enjoying economic, social and cultural rights; the freedom to express one’s identity and peaceably assemble; and the right to participate in family life. The Yogyakarta Principles have been mentioned in counsel proceedings, and have inspired 30 states to positively intervene in sexual orientation and gender identity issues, although they have not been formally adopted by any international body (O’Flaherty & Fisher, 2008, pp. 230-241). Because no international body has directly addressed sexual orientation in their protocols and covenants, nations are presumably free to discriminate on the basis of sexual orientation, although many nations have been positively influenced by the Yogyakarta Principles. The ECHR also has seen some positive developments insofar as its ruling have established principles that gays, lesbians, bi-sexuals and transgendered persons are to be free from discrimination in some areas, yet stopping short in stating that they should be allowed to marry or adopt a child without state interference. Meanwhile, several countries continue to have the death penalty for same sex relationships, while many others still imprison people for ten years or more for this “transgression” (International Lesbian, Gay, Trans and Intersex Association). Therefore, the results of these different organizations have been mixed, and there is still a long way to go in the area of GLBT discrimination and abuse. Torture - What Standards Exist, How are They Enforced, What Actors are Involved, and Are They Effective? The standards on torture will be examined by referencing the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and the European Convention for the Prevention of Torture and Human or Degrading Treatment or Punishment (ECPT). The ECPT established a European Committee that visits places that deprive individuals of their liberty, and these countries must provide the committee free access to the country, information about where individuals are being held, and unlimited access to individuals who have been deprived of liberty. Then, if a country does not cooperate, the committee may make a public statement on the matter (European Treaty Series). The OPCAT similarly authorizes visits to countries where there are concerns about human rights abuses. The subcommittee on prevention is the body that carries this out, with communication with the state party about the recommendations and observations it has, and, furthermore, states that each State Party must maintain its own national preventive mechanism to prevent torture in their own country. These national preventive mechanisms are independent bodies that are granted, at minimum, the power to examine the individuals deprived of liberty and make recommendations to authorities with an aim towards reforming abusive practices (Optional Protocol). Additionally, the UN Special Rapporteur, an official who investigates abuses for the UN, Manfred Nowak, has completed a number of recent missions. Among these is a visit to Greece, where he examined reports of illegal detention, refugee abuse, the quality of health care for detainees, poor conditions of detainment, and allegations of torture, which includes beatings by police officers (Special Rapporteur on Torture). He conducted a similar visit to Papua New Guinea, investigating incidents of torture, abuses against women, youth and the disabled, prison conditions, and conditions of health care (Special Rapporteur on Torture). In Jamaica, he did not find torture, but did find deplorable police custody conditions and youths being detained for various reasons (Special Rapporteur on Torture). He has also made similar missions to Uruguay, Kazakhstan, and Equatorial New Guinea in recent months (Special Rapporteur on Torture). For all these reports, he has made recommendations to the proper authorities in each state. These provisions seem to have no teeth. For instance, the ECPT states that if a state does not cooperate with their fact-finding mission, they will make a public statement. To that, the offending countries probably say – so what? OPCAT states that countries must police themselves. The Special Rapporteur on Torture conducts fact-finding missions, then makes recommendations. However, it is unclear what happens to countries that ignore said recommendations. In essence, countries that are notorious for torture really get a free pass under these rules. They can refuse entry to a fact finder, as the only punishment for doing so is the making of a public statement, and, while they are supposed to police themselves, there does not seem to be a punishment for not doing so. These merely seem to be recommendations, without any real enforcement or punishment for offending countries. These provisions seem to be rather useless for these reasons. Sources Used Alvarez, J. 2006. “International Organizations: Then and Now.” The American Journal of International Law, vol. 100, no. 2, pp. 324-347. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Available at: http://untreaty.un.org/cod/avl/ha/catcidtp/catcidtp.html European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Available at: http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=126&CL=ENG Forsythe, D. Human Rights in International Relations. Cambridge: Cambridge University Press. Gready, P. 2006. Fighting for Human Rights. London: Routledge. Kurasawa, F. 2007. The Work of Global Justice: Human Rights as Practices. Cambridge: Cambridge University Press. O’Flaherty, M. & Fisher, J. 2008. “Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles.” Human Rights Law Review, vol. 8, pp. 207-248. Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Available at: http://www2.ohchr.org/english/law/cat-one.htm Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Available at: http://www2.ohchr.org/english/issues/torture/rapporteur/ Steiner, H., Alston, J. & Goodman, R. International Human Rights in Context: Law, Politics, Morals. Oxford: Oxford University Press. Read More