HUMAN RIGHTS AND CRIMINAL JUSTICE "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance." -- Benjamin Ferencz Mian Ali HaiderL.L.B., L.L.M (Cum Laude) U.K.
Where Do Human Rights Begin? • “In small places, close to home, so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person, the neighborhood he lives in, the factory, farm, or office where he worked. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.” Eleanor Roosevelt, 1958
DEFINITION HUMAN RIGHTS are the rights that all people have by virtue of being human beings. HUMAN RIGHTS are the rights that all people have by virtue of being human beings. HUMAN RIGHTS are derived from the inherent dignity of the human person and are defined internationally, nationally and locally by various law making bodies.
Overview • Brief History of International Human Rights* • Modern Protection of Human Rights • United Nations • Regional Organizations • Local Non-Governmental Organizations • Health as a Human right *Source: “International Human Rights: Law, Policy and Process,” David Weissbrodt, Joan Fitzpatrick and Frank Newman (3d ed. 2001)
Brief History • Antiquity • Code of Hammurabi • Rights of Athenian citizens • Medieval • Magna Carta (1215) • Sir Thomas Aquinas’ theory of natural rights (13th Century)
Brief History • Enlightenment • English Declaration of the Rights of Man (1689) • U.S. Declaration of Independence (1776) • French Declaration of the Rights of Man and of the Citizen (1789) • United States Constitution and Bill of Rights (1789)
Brief History • Early Developments (cont.) • International Committee for the Red Cross (1863) • Geneva Convention (1864) • Hague Conventions (1899 and 1907) • League of Nations and the International Labor Organization (1919)
Brief History • Aftermath of World War II • Roosevelt’s Four Freedoms Speech(January 6, 1941) • The Atlantic Charter Between the United States and Great Britain (August 14, 1941) • The Nuremberg and Tokyo Tribunals • Creation of the United Nations (1945)
Modern Protection of International Human Rights • The Preamble to the United Nations Charter states that the “Peoples of the United Nations” are determined “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”
Modern Protection of International Human Rights • In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights.* The Declaration enumerates civil, political, economic, social, and cultural rights, but the Declaration contains no provisions for monitoring or enforcement. * 48-0 with 8 abstentions (Eastern bloc, Saudi Arabia and South Africa)
Modern Protection of International Human Rights • In 1966, the General Assembly adopted: • The Covenant on Civil and Political Rights (and its First Optional Protocol) • The Covenant on Economic, Social and Cultural Rights which, together with the UDHR, are now known as the International Bill of Human Rights
Covenant on Civil and Political Rights: • Prohibits discrimination on the basis of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” without regard to citizenship • Prohibits torture and cruel, inhuman or degrading treatment or punishment (personal integrity) • Prohibits slavery • Limits the death penalty (in countries that still allow it) to the most serious crimes committed by persons over 18
Covenant on Civil and Political Rights (cont.): • Prohibits arbitrary arrest or detention • Protects freedom of movement and residence • Protects the right to trial, presumption of innocence, right to a lawyer, right to an appeal, freedom from self-incrimination, and freedom from double jeopardy • Protects freedom of opinion and expression • Protects freedom of association and assembly • Public emergency exception (but no torture, executions, or slavery is ever permissible) • Ratified by the United States in 1992
Covenant on Economic, Social and Cultural Rights: • Right to work and make a “decent living for themselves and their families” • Safe and healthy working conditions • Right to form trade unions with the right to strike • Right of everyone to Social Security, including social insurance “widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society”
Covenant on Economic, Social and Cultural Rights (cont.): • Right to adequate food, clothing and housing and to the continuous improvement of living conditions • Right to education • Right to heath care • Economic rights are subject to each county’s ability to provide such rights progressively as its resources permit • Signed but not ratified by the United States
Modern Protection of International Human Rights • In addition to the International Bill of Human Rights, the United Nations has drafted and promulgated over 80 human rights instruments: • genocide • racial discrimination • discrimination against women • Refugee protection • torture • the rights of disabled persons • the rights of the child
UN Human Rights Bodies • Security Council • General Assembly • Economic and Social Council • Commission on Human Rights • Subcommission on the Promotion and Protection of Human Rights • Commission on the Status of Women
UN Human Rights Bodies • Commission on Crime Prevention and Criminal Justice • International Court of Justice • International Criminal Court • Office of the High Commissioner for Human Rights (created by the General Assembly in 1993)
UN Human Rights Bodies • Treaty Monitoring Bodies • Human Rights Committee • Committee on the Elimination of All Forms of Racial Discrimination • Committee on the Elimination of Discrimination Against Women • Committee Against Torture • Committee on the Rights of the Child • Committee on Economic Social and Cultural Rights
Human Rights in International Law • Regional Organizations and Law-Making • European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) implemented by the European Commission of Human Rights and the European Court of Human Rights • The American Declaration of the Rights and Duties of Man adopted by the Organization of American States in 1948 and the American Convention on Human Rights adopted by the OAS in 1969 which are implemented by the Inter-American Commission on Human Rights and the Inter- American Court of Human Rights
Human Rights in International Law • Regional Organizations and Law-Making (cont.) • Organization of African Unity was founded in 1963 and adopted the African Charter on Human and Peoples’ Rights in 1981. The African Commission on Human and Peoples’ Rights is charged with supervising the implementation of the African Charter.
Use of State and Federal Courts to Protect Human Rights • Countries legislatures may enact legislation that specifically incorporates international law into domestic law • Judicial interpretation and application of existing legislative or constitutional provisions
Local Non-Governmental Organizations • HRCP • Minnesota Advocates for Human Rights • American Refugee Committee • Center for Victims of Torture • Institute on Agricultural and Trade Policy • University of Minnesota Human Rights Center
NGO Activities • Monitor elections and political trials • Investigate human rights and conditions • Analyze human rights practices in closed countries – Pakistan, Afghanistan, Bangladesh, Albania, North Korea, Saudi Arabia • Identify and analyze conflicts in unstable territories • Child slavery in Haiti; child health in Mexico, Uganda and the United States
NGO Activities • Lobby United Nations • Draft model statutes • Inquest procedures • Forensic techniques • Domestic violence laws • Represent political asylum seekers • Promote ratification of human rights treaties
Health Care and Human Rights • The revelations of the Nuremberg trials about experiments by physicians on concentration camp inmates led to the creation of the World Medical Association. One of the first acts of the WMA was the revision of the Hippocratic Oath in 1948 to include: “I will not permit consideration of race, religion, nationality, party politics, or social standing to intervene between my duty and my patient.”
Health as a Human Right • The principle of medical neutrality • Source: Geneva Conventions of 1949, Protocol I of 1977 • The right to physical and mental health • International Covenant of Economic, Social and Cultural Rights • Convention on the Rights of the Child • Convention on the Elimination of All Forms of Discrimination Against Women
Principle of Medical Neutrality A. Rights guaranteed by medical neutrality • Protection of the sick and wounded, civilians, and medical personnel • No torture or cruel, inhuman or degrading treatment • No killings or disappearances
Principle of Medical Neutrality (cont.) • No impeding medical functions • No punishment for treating the sick and wounded or for upholding medical confidentiality • Protection of medical facilities and services • No bombing or shelling of hospitals or clinics
Principle of Medical Neutrality (cont.) • No incursions into hospitals • No prevention of the function of medical services in conflict areas or occupied territories • Responsibilities required by medical neutrality • Proper use of medical facilities
Principle of Medical Neutrality (cont.) • No misuse of hospital/clinic/ambulance for military purposes • No misuse of medical emblems for protection • No abuse of medical skills • No torture, cruel treatment or interrogation by medical personnel
Principle of Medical Neutrality (cont.) • No selective or discriminatory treatment of wounded combatants or civilians on non-medical grounds • Prohibition of medical treatment given according to military instruction rather than clinical indications • No breach of medical confidentiality
Sources of Modern Right to Physical and Mental Health • International Covenant on Economic, Social and Cultural Rights, Article 12: • The State’s Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Sources of Modern Right to Physical and Mental Health (cont.) • The steps to be taken by the State’s Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: • The provision for reduction of stillbirth rate and of infant mortality and for the health development of the child; • The improvement of all aspects of environmental and industrial hygiene;
Sources of Modern Right to Physical and Mental Health (cont.) • The prevention, treatment and control of epidemic, endemic, occupational and other diseases; • The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
Convention on Rights of the Child • Articles 6 in 24 provide for, among other things: • Efforts to combat disease and malnutrition through the application of available technology and the provision of adequate nutritious foods and clean drinking water • Appropriate prenatal and post natal health care for mothers
Convention on Rights of the Child (cont.) • Access to education concerning basic health, nutrition, hygiene, and environmental sanitation • Prevention of accidents
Convention on the Elimination of All Forms of Discrimination Against Women • Articles 11 provides special protection to women during pregnancy with respect to types of work that are proven to be harmful to them.
Convention on the Elimination of All Forms of Discrimination Against Women (cont.) • Article 12 insures equality of men and women with respect to access to health care services including those related to family planning and specifically providing that women get appropriate services in connection with pregnancy, confinement, and the post natal period, including adequate nutrition during pregnancy and lactation.
Convention on the Elimination of All Forms of Discrimination Against Women (cont.) • Article 14 provides equal access to women in rural areas to health care facilities including counseling services and family planning.
International Legal Order in the Context of Human Rights and Criminal Law • Domestic Remedies • Methods of International Enforcement • Pre-Nuremberg • Nuremberg • Modern Tribunals • International Criminal Court • Sources of International Law
Domestic Remedies • Who is in power? • Who has the power? • Who has jurisdiction? • Who has the right? • Whose law applies?
Why Domestic Remedies Will Not Work for Certain Crimes • Genocide • Terrorism • Crimes of Aggression • War Crimes • Trafficking in People, etc… • -- All stem from political power, not individual action--
The Armenians • In 1915 the Turkish government presided over the killing by firing squad, bayoneting, bludgeoning, and starvation of nearly 1 million Armenians. • Efforts to bring the Turkish leaders to justice after World War I fizzled and set the stage for later atrocities in Europe.
“It was knowingly and lightheartedly that Genghis Khan sent thousands of women and children to their deaths. History sees in him only the founder of a state…. The aim of war is not to reach definite lines but to annihilate the enemy physically. It is by this means that we shall obtain the living space we need. Who today still speaks of the massacre of the Armenians?”
Hitler, August 1939 • One week later the Germans invaded Poland and began the extermination of the Polish Jews, Roma and undesirables. • By the end of World War II, some 6 million Jews and 5 million Poles, Roma, Communists and other undesirables had been slaughtered.
Nurnberg (Nuremberg) • Nazi leaders tried for four crimes: • Conspiracy to Commit Wars of Aggression Against Independent Sovereigns • Crime Against Peace – AGGRESSIVE WAR • War Crimes - MURDER AND ILL-TREATMENT OF CIVILIAN POPULATIONS OF OR IN OCCUPIED TERRITORY AND ON THE HIGH SEAS; and DEPORTATION FOR SLAVE LABOR AND FOR OTHER PURPOSES OF THE CIVILIAN POPULATIONS OF AND IN OCCUPIED TERRITORIES
COUNT FOUR • MURDER, EXTERMINATION, ENSLAVEMENT, DEPORTATION, AND OTHER INHUMANE ACTS COMMITTED AGAINST CIVILIAN POPULATIONS BEFORE AND DURING THE WAR • PERSECUTION ON POLITICAL, RACIAL, AND RELIGIOUS GROUNDS IN EXECUTION OF AND IN CONNECTION WITH THE COMMON PLAN MENTIONED IN COUNT ONE • Included only acts from the date of the invasion of Poland in 1939.
The Genocide ConventionFirst UN Convention, adopted December 9, 1948; entry into force 12 January 1951 • “any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, such as: • Killing members of the group; • Causing serious bodily or mental harm to members of the group; • Conditions of life calculated to bring about the physical destruction of the group; • Measures intended to prevent births within the group; • Forcibly transferring Children away from the group.