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Human Rights Law and Burma

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B Adams

on 27 July 2010

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Transcript of Human Rights Law and Burma

Law: What does it do in our lives? Do we ever break the law? How do we respond when people break laws? What happens when we break laws? Human
Rights
Law The role of Human Rights law, and how it developed. The structure of the Human Rights system How to read human rights documents The role of HR Law in HR Advocacy The International Criminal Court What about this law? We want laws to be rules made by a community to regulate the behavior of that community. Recap from yesterday Apply to Human Rights What do we want a system of human rights laws to do? Make new rules

Keep track of the rules

Monitor compliance with the rules

Encourage behavior change And... Individuals need to define their own dignity Before... After... Warning! Different sources of human rights law:
Customary International Law
UDHR
Special Treaties
Regional Treaties
Declarations
General Comments from Monitoring bodies Different ways to promote compliance:
Individual complaint mechanisms (sometimes)
Periodic Reports
Specialized working groups / Special Rapporteurs
Site visits
Resolutions
Mandatory provisions
Sanctions or Prosecution Different ways to institutionalize compliance:
The Human Rights Council
The UN Security Council
Treaty Monitoring Bodies
Regional Human Rights Courts and Commissions
Domestic Human Rights Promotion Institutions
Domestic Courts Overlapping? Yes! Different Standards Specific General "Derogable" "Non-derogable" "Progressive Realization" "Core Minimum Obligations" All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. ICCPR Art. 10.1 http://www.hrweb.org/legal/cat.html Convention Aainst Torture, Art. 1.1 For the purposes of this Convention, torture means any 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 act 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 such 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. http://www2.ohchr.org/english/law/ccpr.htm ICCPR, Art. 4.1 In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. http://www2.ohchr.org/english/law/ccpr.htm No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. http://www.hrweb.org/legal/cat.html Convention Against Torture, Art. 2.2 http://www2.ohchr.org/english/law/ccpr.htm No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. ICCPR, Art. 4.1 Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. ICESCR, Art. 2.1 http://www2.ohchr.org/english/law/cescr.htm The Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. Committee on ESCR General Comment No. 3 Paragraph 10 Different Documents UDHR
Treaty
Declarations Original Law Explanation of the Laws General Comments Whether a State is following the Law Resolutions
Reports of Special Rapporteurs
Concluding Observations from Periodic Reports Respect, Protect, Promote, Fulfill UDHR Art. 25.1 : Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services ICESCR Art 21.1 : "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health"

Art. 12.2 "2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
CESCR General Comment 14
Para 10 ...the world health situation has changed dramatically and the notion of health has undergone substantial changes and has also widened in scope. More determinants of health are being taken into consideration, such as resource distribution and gender differences. A wider definition of health also takes into account such socially-related concerns as violence and armed conflict. (4) Moreover, formerly unknown diseases, such as Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (HIV/AIDS), and others that have become more widespread, such as cancer, as well as the rapid growth of the world population, have created new obstacles for the realization of the right to health which need to be taken into account when interpreting article 12.

Para 11: The Committee interprets the right to health, as defined in article 12.1, as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health-related decision-making at the community, national and international levels.

Para 14. "The provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child" (art. 12.2 (a)) (10) may be understood as requiring measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, (11) emergency obstetric services and access to information, as well as to resources necessary to act on that information.
A criminal court for trying people accused of grave human rights crimes. Genocide War Crimes Crimes Against Humanity Crime of Aggression Murder
Extermination
Enslavement
Displacement of population
Torture
Rape and Sexual Violence
Persecution of an Ethnic or National Group
Disappearance
Apartheid
Inhumane acts Killing
Torture
Extensive destruction of property
Attacking Civilians
Taking Hostages
Violating Rules of War
Pillaging a town
Rape or sexual violence
Recruiting children under 15
Displacing a civilian population
Widespread or
systematic attacks Why? 1. Satisfy Victims
2. Discourage future crimes
2. Eliminate impunity If only states prosecute crimes, then heads of state will never be prosecuted. Domestic war crimes trials Rangoon, 1946 International war crimes trials long pause... Special International Courts Extraordinary Chambers in the Court of Cambodia, 2003 International Criminal Tribunal for the former Yugoslavia, 1993 International Criminal Tribunal for Rwanda, 1994 Germany, 1947 Japan, 1947 Special Court for Sierra Leone, 2000 The Rome Statute, 2002 A permanent criminal court The ICC Specific crimes...
...committed by a citizen of a country that signed the Rome Statute...
...committed within the territory of a country that signed the Rome Statute...
...committed after 2002...
...if that person's domestic courts are unable or unwilling to prosecute.

**or**

Any situation referred to the ICC by the Security Council. Referral to the ICC Uganda Democratic Republic of Congo Central African Republic Kenya Sudan Thomas Lubanga - on trial enlisting children under 15 Bosco Ntaganda - at large Germain Katanga and Mathieu Ngudjolo Chui - on trial War crimes:using children under the age of 15
wilful killings
destruction of property
pillaging
sexual slavery
rape

Crimes against humanity:
murder
rape
sexual slavery "A person stands a better chance of being tried and being judged for killing one person than for killing 100,000 people." Jean-Pierre Bemba Gumbo Crimes against humanity:
murder
rape

War crimes:
murder
rape
pillaging Joseph Kony - at large
Vincent Otti - at large
Okot Odhiambo - at large
Dominic Ongwen - at large Still under investigation Ahmad Muhammad Harun - at large Ali Muhammad Ali Abd-Al-Rahman - at large Omar Hassan Ahmad Al Bashir - at large Crimes against humanity
murder
extermination
forcible transfer
torture
rape
War crimes
attacking civilians
pillaging
Genocide
genocide by killing
genocide by causing serious bodily or mental harm
genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction Bahar Idriss Abu Garda - No indictment Abdallah Banda Abakaer Nourain - on trial Saleh Mohammed Jerbo Jamus - on trial Who is being prosecuted now? Definitions of Crimes Very specific definitions of crimes. Must take place during war (war crimes)

or

during a "widespread or systematic" attack (crimes against humanity) How to show responsibility? Importance of good documentation knowledge intent What about Burma?
NGOs, SR, and some diplomats are calling for a Commission of Inquiry
Next step is thorough documentation and advocacy Pros Cons Using human rights law is making human rights law. Where do Human Rights
come from? Human Rights Law:
one tool for human rights action Human Rights:
the process of empowering communities Human Rights law can make human rights advocacy more effective Human rights law is rules of the entire population made to govern behavior of the entire population Certain laws, even if enacted by states, violate the interests or dignity of its citizens. Human rights laws provide limts on the behavior of states. Like any legal system, human rights needs a process for making laws, communicating laws, and enforcing laws.
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