Evolution of Intl. Human Rights Law: Universal Standards & State Accountability, Apuntes de Derechos Humanos

¡Descarga Evolution of Intl. Human Rights Law: Universal Standards & State Accountability y más Apuntes en PDF de Derechos Humanos solo en Docsity! INTERNATIONAL LAW OF HUMAN RIGHTS 27 September. - Manual. International human rights law, rhona smith. - Write a paper. - Test. Open questions. No se sabe si será presencial o no. ------------------------------------------------------------------------------------------------------------------- - Premise. A critical gaze on human rights. They are a sort of peculiar rights. They are the substantial needs of the people; are the way we use to describe these needs. They are substantial content, part of our life, but are also the word that we use to describe it. We have an entitlement to them. Human rights are a way of talking about realities, to describe them and asses universal needs. They are often criticized, but they are a need, the problem is: what human rights are necessary? What rights do we have to preserve? We use them to cover a defect in the reality, to solve the lack of something. There is a mainstream approach to human rights. All of it started at the of World War II, at that time the international community started elaborating and enacting international human rights treaties, conventions and declarations, covenants; all this led to a legal frame for the human rights, and it started to spread an influence of international law. Mainstreaming human rights refers to the efforts undertaken by state representatives, intergovernmental organizations (IGOS) and non- governmental organizations (NGOs) to both prioritize and streamline the international approach to human rights. They became like a common language between the states, they were added to the country’s constitutions through fundamental or essential rights. They are legal instruments. Accompanying this, there was a modem human rights movement regarding the mass violation of human rights; this perspective went through a huge transformation. We find that the number of global human rights treaties, declarations, and optional protocols has expanded dramatically since the end of the WWII, that cover an impressive range of social, cultural, political and economic rights, they represent the international community’s attempts to enshrine a set of common global standards to secure basic human rights. They are obligations between states, they state global standards about rules; not only to protect the citizens, but also to comply with the international society “guidelines”. Between 1948 and the early 2000s (even now) more states wanted to have a place in this legal system, the number of treaties was incremented. The different states are committed to these documents, they commit themselves. The term “mainstreaming” refers both to the dramatic growth in human rights treaties and conventions, and the attendant attempts to prioritize human rights in intergovernmental organization policies. Mainstreaming has led to a transformation in sovereignty, empowering individual citizens with new avenues for confronting rights violating regimes. 1 There’s being a process of legalizing, the social needs, the aspirations of society are translated into a normative frame. Although this is a good thing, it empowers people, it can also created a bureaucratic gaze, losing sight of what happens in society. There are new aspirations and needs in the society that aren’t present in the covenant, they are too focused on rules and regulations. Contestation over the meaning of rights and a considerable enforcement gap should be considered some of the primary drawbacks associated with the mainstreaming of rights at the global level. The main criticism is the enforcement gap, all human rights are potentially protected by the conventions, but we need to put it in practice, to enforce them and this action is lacking effectiveness. Another popular criticism is about the socialization of the human rights, since every country has a different culture and society; we must harmonize the socialization to the country characteristics, but it must be implemented in all countries and have a common understanding. They are universal and must be implemented the same way. Universal jurisdiction, a principle that has been transformed because of the mainstreaming of human rights, has contributes to a sharp rise in the number of former state leaders facing prosecution for human rights violations committed while in office. Together, the transformation in sovereignty and universal jurisdiction give voice to repressed individuals, while promoting elite accountability for human rights violations. The human rights must be seen from the perspective of those who suffer the most. There are some differences between countries regarding the issue of the immunity; in general, there are some public figures that have personal immunity, such as prime ministers or diplomats. Human rights foregrounds problems of participation and procedure, at the expense of distribution, implicitly legitimating the existing distributions of wealth, status and power in societies once rights have been legislated, formal participation in government achieved, and institutional remedies for violations provided. ¿Gentrification of human rights? If the human rights community fails to critically engage with the growing domestic challenges that it confronts, it is highly likely that it will experience the same fate as that which appears to await other constituents of what is cast as the liberal elite; an unedifying descent into a socially exclusive, politically unpopular credo for a diminishing number of supporters, with ever diminishing influence beyond their own social enclaves. A gentrified approach to human rights within such societies fails to identify and engage with fundamental forms of social and economic injustice precisely because it is itself a product of these systemic and structural forces: it is part of the very predicament it largely fails to discern. Debate: Mainstream human rights discourse: progressive positivisation of human rights. Critique: a rhetoric embraced by a shrinking elite. Critique: a rhetoric that underpins and legitimates neoliberal capitalism. M. Novak, last week: not human rights have failed, but neoliberal governance. At the beginning, the idea of human rights was mean to be for the elite, it started to change eventually. This construction of human rights was modified in the 70 and in the 80 with the social revolution of south America and it expanded to a global movement, this only became global at the 80-90. 2 Relevant articles: - Art 241. Crime of buying trafficked women or children. - Art 243. A crime of selling human organs. - Art 244. Crime of forced labour. - Article 262. Crime of abducting children and organizing people with disabilities and children for begging or engaging in criminal activities. - Art 358. Crime of organizing and forced prostitution. - Art 359. Crime of luring other into prostitution. Palermo Protocol Chinese legal framework Age Under 18 Under 14 Action Recruitment, transportation, transfer, harboring or receipt. Abducting, kidnapping, buying, selling, transporting, or transferring. Purpose Exploitation Selling. Lack of official statistics. China Statistical Yearbooks: 1997 to 2016, the public security organs filled 176,082 criminal cases of abduction and sale of women or children. State Council report: in special police actions or anti-abduction and trafficking of women and children during 2009 and 2011, a total of 36,369 women and children were rescued, of whom 36,5% (13,284) were children. Trafficking modes. The abduction and sale of children (MI): children are taken away from their parents by means of abduction, coercion, deception, abuse of power, or other means of violence. The parental sale of children (M2): children are sold to a middleman or another family by either one or both of their parents or guardians. The organized child trafficking (M3): children are sold by their parents to a middleman who is usually a link of a trafficking network. Parents are induced or recruited by the trafficker. Victims are often transported and sold more than once by multiple traffickers. Victimology. Total number of Victims: 932. Only four child victims of the detected cases were trafficking for exploitive purpose- forced marriage. In all the other cases, children were abducted or recruited for resale, or to be sold for illegal adoption. The ultimate purpose of the buyer is not mentioned in the court documents, and it is not clear if the victims were subject to sexual or labour exploitation in the “adoptive” families. Human rights issues as causative factors- Poverty. Push factor: there are top five provinces with highest number of out-going victims: Yunnan, Sicuhan, Guizhou, Shanxi and Guangxi. Over 93% victims of GD, SD, and YN were from rural areas. Extreme poverty. Relative poverty. Pull factor: Unmarried and unqualified for legal adoption. Human rights issues as causative factors- Discrimination. 5 - Gender-based. o Girls are more likely to be sold by their parents. o Boys are more required and more likely to be abducted, o Boys as economic burden of the family. o Indirectly affected, gender-based violence. - Against persons with disabilities. o Physical and sexual exploitation. o Children of persons with disabilities. o Foster the demand. - Other status. o Discrimination against single mother. o Discrimination against children born out of wedlock: 41% of 204 victims were born out of marriage. Human rights issues as causative factors- Inadequate protection. - Family planning policy. o Sanctions. o Illegal to abandon a child. - Child protection system. o Lack of a responsible agency. o Lack of a complete child protection system. o Lack of a compulsory reporting system. Policy gaps. National policy detached from reality. New technologies bring new challenges to rights of the child. Numerous gaps also need to be filled when referring to international human rights standards and principles. China´s national policy and practice. National Plans of Action (NPA) on Combating Trafficking in Child and Women -> inter- ministerial joint conference system for anti-trafficking in women and children (IMCS). “3Ps” mechanism in practice: - Prosecution. o Criminalisation: 5 years imprisonment to death penalty (at least 6 traffickers were executed) o Law enforcement: special police crack-down actions. (2009-2011) - Protection. Improving the protection to child victims. o DNA databank of anti-abduction. o Establishing and improving a system of State judicial relief. o State council. - Prevention. Online Alert system (2016), Video surveillance system. Civil society- Baby coming home. 6 Early occurrences of “humanity’s law”. “Evil twins”, Marxist and feminist critique. The notion of human rights thus brought in its train a whole succession of evil twins.” Counter-narratives included: - Imperialism (Napoleon, etc) and colonialism (“the white man’s burden”). - Nationalism (post 1848 exclusive nationalism). - Tradicionalism -> anti-egalitarism. - Ethnobiological nationalism-> racism (social Darwinism), sexism, anti-semitism and, again, colonialism. - Marxist socialism (partially). o Above all, we note the fact that the so-called rights of man, the droits de l’homme as distinct from the droits du citoyen, are nothing but the rights of a member of civil society – i.e., the rights of egoistic man, of man separated from other men and from the community. … Only when the real, individual man re- absorbs in himself the abstract citizen, … only when man has recognized and organized his “own powers” as social powers, and, consequently, no longer separates social power from himself in the shape of political power, only then will human emancipation have been accomplished. – Marx, on the Jewish Question, 1844. Anna Grear: the Universal Declaration of Human Rights (UDHR) paradigm contains two contradictory impulses. On the one hand, the whole human rights system is founded on a concern for embodied vulnerability. Grear presents a genealogy of human rights in which she shows that this is the case both during the idea’s early articulations in the eighteenth century and when the UDHR was created as a reaction to the horrors of World War II. On the other hand, the liberal legal subject has been imported into the human rights structure: archetypically, this is a rationalistic and quasi-disembodied subject. In many ways, this subject is conceived of as invulnerable. Many groups that do not fit the liberal archetype—women, dispossessed, people of color, and (especially) asylum seekers—fall outside the scope of the purportedly universal protection of human rights. Laws of war/ Law of armed conflict/ international humanitarian law. • Solferino and San Martino battle, 1859 (Henry Dunant) • American civil war, 1861-1865. Lieber Code (Francis Lieber) • 1864: convention for the protection of wounded in the battlefield • 1868 convention on explosive projectiles • 1899 conventions, adopted by the peace conference held at The Hague, on prohibition of asphyxiating gases and dum dum bullets. • 1907 second Hague peace conference. The IV Hague Convention on laws and custom of war on land and annexed Regulation 7 Three classes of mandate: A, B, C: • A (former Ottoman territories, nearly prepared for independence in the estimation of the treaty-makers, i.e. Palestine and Iraq (Mandatory Power: UK), Syria (Mandatory Power: France) • B (the former German colonies in Africa except South West Africa, that was a C mandate. Mandatory Powers: France, UK, Belgium) • C (South West Africa and the Pacific Islands, governed as “integral parts” of the Mandatory Power’s territory. Mandatory Powers: UK, Australia, New Zealand, Japan, South Africa. Non-autonomous populations under the mandate system are given a right to submit petitions before the Permanent Mandate Commission of the LoN. The Minority treaties. Treaties between the Principal Allies and Associated Powers with Poland, Czechoslovakia, the Serb-Croat-Slovene State, and Romania contain specific minority rights protection provisions. Post-WW I peace treaties with Austria, Bulgaria, Hungary, and Turkey (1919 - 1923). National minorities were granted civil and political rights, equal admission to public service, free use of the mother tongue in public contexts, right to run schools, etc., under the guarantee of the LoN. Legal controversies shall be submitted to the Permanent Court of International Justice (PCIJ). Unilateral Declarations pledging minority protection made before the Council of the LoN by Albania, Estonia, Finland, Latvia, Lithuania, and Iraq. Bilateral implementation agreements: Austria with Czechoslovakia; Czechoslovakia and Poland; Germany and Poland on the territory of Upper Silesia; Finland and Sweden on the Aaland Islands; etc. After WW II peace treaties contained provisions on human rights, only occasionally the minority rights issues were addressed. An assimilationist approach prevailed at the UN. In Third-World/NonAligned Countries, emphasis on peoples’ self-determination allowed for a thwarted concern for minorities – until the 1970s. - Minorities seek institutional integration. Indigenous peoples instead seek to preserve a degree of institutional separateness; - Minorities seek to exercise individual rights, while indigenous peoples seek to exercise collective rights; - Minorities seek non-discrimination, while indigenous peoples pursue selfgovernment. (Eide, Asbjorn and Erika-Irene Daes (2000), UN Doc. E/CN.4/ Sub.2/2000/10 ILO Convention 169 (tribal and indigenous peoples) article 1.2.: “Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.” 10 ILO and ILO standards. - ILO constitution: Part. XIII of the Versailles Treaty: social injustice causes that the peace and harmony of the world are imperiled - the ILO has a tripartite membership: any state delegation is composed o 4 delegates: 2 appointed by the government, 1 by workers’ unions, 1 by employers’ organizations - ILO areas of concern: o hours of work o labour regulation of the labour supply, o prevention of unemployment, o adequate living wage, o protection of the worker against sickness, disease and injury arising out of his employment o protection of children, young persons and women, o provision for old age and injury, o protection migrant workers o equal remuneration for work of equal value, o freedom of association, o vocational and technical education The 8 ILO fundamental conventions: • Freedom of Association and Protection of the Right to Organise Convention, 1948 • Right to Organise and Collective Bargaining Convention, 1949 • Forced Labour Convention, 1930 (+ Protocollo 2014) • Abolition of Forced Labour Convention, 1957 • Minimum Age Convention, 1973 • Worst Forms of Child Labour Convention, 1999 • Equal Remuneration Convention, 1951 • Discrimination (Employment and Occupation) Convention, 1958 The ILO supervisory procedures: state reports, states/workers/ employers’ complaints/representations; freedom of association procedure 11 ONMENIS http://www,.ilo.org TO IMMIENT COMMITTEE DF EXPERTS REVIEWS REPORTS, COMMENTS. TRIPARTITE COMMITTEE AND RELATED ATTHE CONFERENCE DOCUMENTS ISSES DISCUSS THE REPORT AND Y ASELECTION OF OBSERVATIONS Ty AO TT ES E IET - ¡¿qRE--z_-_— he Complaints procedure MEMBCA STATE OR INTERNATIONAL GOVERNING BODY INT http://www.ilo.org GOVERNING ILO PUBLISHES BODY FOAWAADS ALPOAT COMPLAINTS CONCERMING TRADE ÚNION RIGHTS TO. OF ASSOCIATION GOVERNING 80DY MAY TAKE "ACTION UNDER GOVERNING DODY. a ARTICLE 33 NOTES REPORT, NA CIAA AID PASES CASE SS TO COMMMITIFF OF EXPERTS FOR FOLLO WIP. 2. 12 In the 40’s all the aspects of humanity’s law converged. This is a list of the main instruments that the UN has adopted on the topic of human rights. It took ten years to achieve the ratification the International Covenant on Economic, Social and Cultural Rights, since it needed 35 countries. After the nineties, all states rushed to ratify these instruments because it gave them validation from the rest of the international community. Drafting new human rights treaties: • ILC (International Law Commission of the UN) Draft articles on the Protection of persons in the event of disasters, 2016 • ILC Draft articles on prevention and punishment of crimes against humanity, 2019 • HRC Draft Convention on the Right to Development, 2021 • HRC, ‘Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights (IGWG)’, https://www.ohchr.org/ en/hrbodies/hrc/wgtranscorp/pages/igwgontnc.aspx, 2014 – • HRC Open-ended intergovernmental working group to elaborate the content of an international regulatory framework, without prejudging the nature thereof, relating to the activities of private military and security companies, 2010-17, 2017-2021 We don’t have written rules about what states must do when there are crimes against humanity. 15 International law is important to create an even standard between countries in some matters, like the ones relating to the activities of private military and security companies. Concept of Humanity’s law. “Humanity law is the product of multiple traditions and diverse commitments, which converge in a distinctive subjectivity. “This subjectivity derives from the recognition of individual agency and individuals’ capacity and responsibility for action in the international sphere – responsibility that is potentially independent of the responsibility of the state […] “The humanity law framework also implies a standard of treatment that is based on humanity as both the subject and object of action. “Lastly, humanity law’s orientation or telos is the preservation of humanity – understood as being composed at the same time of individuals and of diverse peoples […] “Such peoples (or nations) challenge existing states in terms of defining allegiances and identities and the distribution of sovereignty – most evidently, with claims of self- determination, both internal and international” Non state agencies are responsible even if they are dependent on the state, legal subjectivity. Preservation of humanity as opposed to preservation of the state. Sovereignty is no more only a matter of state, is also a matter of other entities. Peoples are often in tension with the state, regarding matters of sovereignty. Distinctive characters. • Grounded on “objective obligations”, the international laws are sort of objective obligations. Human rights norms establish erga omnes obligations, “owed to the international community as a whole” • Human-centred (as opposed to sovereign-centred): - it protects individuals and peoples rather than sovereign states and - it places (criminal) responsibility on individuals, not just (international responsibility, a form of civil liability) on states • Customary humanity law norms tend to acquire the status of peremptory obligations (ius cogens) • Humanity law multilateral treaties create special regimes: institutions/ mechanisms of monitoring, governance and adjudication (international courts) to supervise their implementation. Risk of fragmentation. They have a rational side, there’s a dynamic. The entities must respond in front of someone, in front another entity that enforces the law. This only works if the parties involved are members of the conventions, if they have ratified them, so in case of conflict they can apply these methods to solve the situation. If a country, that has not ratified the conventions, conflicts with one that has, said methods can’t be applied because the obligations aren’t binding for that country. These rules must be respected if you are a party of these conventions, even if another party doesn’t respect them. 16 You cannot destroy a state for the crimes of a person, it wouldn’t be fair, that’s why there is an international responsibility that applies to individuals. The general norms are usually prohibitions like the prohibition of genocide. Any international entity is supposed to respect this prohibition, the ius cogens, normas de derecho imperativo, they are meant for everyone. These rules must be interpreted, everything must be interpreted, in a way that is in accordance with the overall goal: to protect the humanity. This concept evolves overtime, we should apply the principles to the context. Interpretation: • gaps are to be filled in accordance with humanitarian (eg Martens clause) and human rights principles (see eg art. 21.3 ICC statute). • ILC: Subsequent agreements and subsequent practice in relation to the interpretation of treaties (2018) ex Arts. 31 and 32 of the Vienna Convention on the Law of Treaties: - Conclusion 8 - Interpretation of treaty terms as capable of evolving over time. Subsequent agreements and subsequent practice under articles 31 and 32 may assist in determining whether or not the presumed intention of the parties upon the conclusion of the treaty was to give a term used a meaning which is capable of evolving over time. - Conclusion 13 - Pronouncements of expert treaty bodies. 3. A pronouncement of an expert treaty body may give rise to, or refer to, a subsequent agreement or subsequent practice by parties under article 31, paragraph 3, or subsequent practice under article 32. Silence by a party shall not be presumed to constitute subsequent practice under article 31, paragraph 3 (b), accepting an interpretation of a treaty as expressed in a pronouncement of an expert treaty body. 4. This draft conclusion is without prejudice to the contribution that pronouncements of expert treaty bodies make to the interpretation of the treaties under their mandates. • ECtHR: the Convention is applied and interpreted in a way that “renders its rights practical and effective and not theoretical and illusory”. The Court must have a dynamic and evolutive approach by considering the changing conditions, in order to avoid the risk to “rendering [the European Court of Human Rights] a bar to reform or improvement”. The ECHR is a “living instrument”. • International humanity law requires active state-level (rectius: multilevel) implementation policies (eg art. 2 ICCPR and ICESCR) • Non-state actors have a peculiar law-making role • Humanity law is generally “progressive”: it promotes nondiscrimination, empowerment of the poor, self-determination of peoples, and “elementary considerations of humanity”. Manipulations though are always possible (selective policies of “humanitarian interventions”). It has potentially disrupting effects in some societies. Aspects of humanity’s law: Peoples’ rights (self-determination). US President W. Wilson, 1918: ”National aspirations must be respected; peoples may now be dominated and governed only by their own consent. "Self-determination" is not a mere phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their peril. We cannot have general peace for the asking, or by the mere arrangements of a peace conference. It cannot be pieced together out of individual understandings between powerful states..." • Atlantic Charter, August 14, 1941: external and internal self-determination: 17 they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’ (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22).” International treaty enforcement mechanisms. Reciprocity • suspension • termination • countermeasures. This countermeasures cannot affect the principles of humanity’s law. • (use of force) Reciprocity + community interests and common values / • suspension • termination • countermeasures not involving the use of force and infringement of human rights and humanitarian standards and ius cogens obligations (art. 50 ASR) • third party lawful measures (art. 54 ASR: countermeasures operated by not affected states are not permissible), including international prosecution of responsible individuals. Erga omnes. Some international norms create “objective” obligations, that is obligations any state bears vis- à-vis the international community as a whole. “Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person … ); others are conferred by international instruments of a universal or quasi-universal character.” (ICJ, Barcelona Traction case, 1970, 33-34) Many humanity law norms (HRL, IHL, ICL), customary or conventional, are erga omnes in character. Legal implications of qualifying an obligation as an erga omnes one: ASR, art. 48 (Invocation of responsibility by a State other than an injured State): 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) The obligation breached is owed to the international community as a whole. 2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) Cessation of the internationally wrongful act, and assurances and guarantees of non- repetition […]; and (b) Performance of the obligation of reparation […] in the interest of the injured State or of the beneficiaries of the obligation breached. Effective application of humanity’s law erga omnes provisions is responsibility of any state. There is a common “humanity’s interest” to their respect - can we speak about solidarity? Judicial dicta mentioning erga omnes obligations (erga omnes vs reciprocity) 20 ICTY, Case No.: IT-95-16-T, Kupreskic, 2000: The “tu quoque” defence does not apply in humanitarian law cases • IHL obligations are not reciprocal, but unconditional: art. 1 of the Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” • see instead Hague Conventions 1899 and 1907: “The provisions contained in the Regulations mentioned in Article I are only binding on the Contracting Powers, in case of war between two or more of them. These provisions shall cease to be binding from the time when, in a war between Contracting Powers, a non-Contracting Power joins one of the belligerents.” (si omnes clause) • the departure from reciprocity is part of the process of “humanization” of international legal obligations: IHL is no longer deemed to protect state interests, but primarily designed to benefit individuals as human beings. • IHL (and generally HR and ICL norms) are erga omnes, and absolute in character, in as much as they are also peremptory norms (ius cogens). • ICJ, QUESTIONS RELATING TO THE OBLIGATION TO PROSECUTE OR EXTRADITE (BELGIUM v. SENEGAL). JUDGMENT OF 20 JULY 2012 • 68. The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity… These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case. In this respect, the relevant provisions of the Convention against Torture are similar to those of the Convention on … Genocide … —> • 69. The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim… • 70. For these reasons, the Court concludes that Belgium, as a State party to the Convention against Torture, has standing to invoke the responsibility of Senegal for the alleged breaches of its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention in the present proceedings … As a consequence, there is no need for the Court to pronounce on whether Belgium also has a special interest with respect to Senegal’s compliance with the relevant provisions of the Convention in the case of Mr. Habré. Ius cogens obligations. Vienna Convention on the Law of Treaties art. 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character art. 60: 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: […] b. A party 21 specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; […] 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. Reservations. Obviously, these don’t make sense in bilateral agreements, since if one doesn’t agree there’s no agreement. Vienna Convention on the Law of Treaties. art. 19: General rule A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: a. The reservation is prohibited by the treaty; b. The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or c. In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. You show your commitment to the cause, but you have certain reservations regarding some points of the agreement. The reservations can be withdraw, but they can’t make new reservations once the treaty is sign. CCPR, General Comment n. 24, 1994 (heavily contested by some States) • 6. The absence of a prohibition on reservations does not mean that any reservation is permitted. • 12. Reservations often reveal a tendency of States not to want to change a particular law. And sometimes that tendency is elevated to a general policy. Of particular concern are widely formulated reservations • 19. Reservations must be specific and transparent […] must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto • 8. Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant • 10. While there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation. • 11. The Covenant consists not just of the specified rights, but of important supportive guarantees. […] Reservations designed to remove these guarantees are thus not acceptable. • 16. … which body has the legal authority to make determinations as to whether specific reservations are compatible with the object and purpose of the Covenant [?] • 17. Such treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place […] And because the operation of the classic rules on reservations is so inadequate for the Covenant, States have often not seen any legal interest in or 22 others; b) for the protection of national security or of public order (ordre public), or of public health or morals. Challenges to the absolute status of some rights - prohibition of torture - Saadi v. Italy, 2010: According to Chalal v. UK, 1996: a person cannot be expelled to a state where there are reasonable grounds to believe that she/he will be subject to torture or inhuman treatment the United Kingdom argued that, in cases concerning the threat created by international terrorism, the approach followed by the Court in Chalal had to be altered and clarified states should be allowed to weight the rights secured to the applicant by Article 3 of the Convention against those secured to all other members of the community by Article 2 (right to life) Moreover, national-security considerations must influence the standard of proof required from the applicant: In particular, the individual concerned must prove that it was “more likely than not” that he would be subjected to treatment prohibited by Article 3. Limitations to human rights - prescribed by a law (legality test) - in pursuance of a legitimate aim (legitimacy test): to protect public safety, order, health, morals, or national security, or the fundamental rights of others - necessary and proportionate to the legitimate aim pursued (proportionality test) “in a democratic society”. A balancing of competing interests is generally required. o States have a certain margin of appreciation as to determining necessity and proportionality of a measure in light of factual circumstances o A restriction can be considered proportional when it was the outcome of a fair decision-making procedure. Derogable/non-derogable. • ICCPR, art. 4; • ECHR, art. 15; • ACHR, art. 27 admit for states parties to suspend the application of human rights provided that - a “public emergency threatening the life of a nation” is o officially proclaimed and o officially notified to the other states parties - the rights’ suspension is strictly necessary in extension, subject target and duration - measures replacing the suspended rights are o proportionate to the pursued aim, o non-discriminatory on grounds of race, sex, ethnicity, etc. , and o consistent with other international obligations. non-derogable rights: • ICCPR, art. 4.2: No derogation from arts 6, 7, 8 (paras 1 and 2), 11 (debt prison), 15 (non retroactivity of penal law), 16 (judicial personality) and 18 (freedom of thought, conscience and religion) shall be made under this provision • ECHR, art. 15: no derogation from art. 2 (right to life), except in respect of deaths resulting from lawful acts of war, or from arts 3 (torture), 4 (para 1) (slavery) and 7 (non retroactivity of penal law) shall be made under this provision • ACHR, art. 27: 2. The foregoing provision does not authorize any suspension of the following articles: art. 3 (right to judicial personality), art. 4 (right to life), art. 5 (righ to humane treatment), art. 6 (freedom from slavery), art. 9 (freedom from ex post facto laws), art. 12 25 (freedom of conscience and religion), art. 17 (rights of the family), art. 18 (right to a name), art. 19 (rights of the child), art. 20 (right to nationality), and art. 23 (right to participate in government), or of the judicial guarantees essential for the protection of such rights. State’s accountability for human rights obligations. To implement human rights, states have a duty: • to respect - negative obligations. Mostly, to respect individual rights. • to protect - positive obligations: - to prevent violations of any human right by third parties; - to provide remedies (judicial and non-judicial) and reparations • to fulfill - positive obligations: - to enact national strategies, - action plans, - framework laws, - evidence-based policies, - budgetary measures, • etc. To implement human rights, states have the duty to implement rights according to the “4 As”: - availability o facilities, infrastructures, personnel, material resources so as to made the right “real” (eg food to realize the right to food) - accessibility o physical accessibility o economic accessibility o non-discriminate access - acceptability o relevant o of good quality o culturally appropriate - adaptability o to the changing socio-economic contest o to the demand of the right-holders State accountability: Justiciable cases. States are liable for: direct responsibility; due diligence: states have a duty to regulate/supervise the actions of individuals/private bodies/corporates. Non-justiciable cases. Can be addressed via: monitoring bodies’ conclusions budget analysis, technical assistance, diplomatic and political actions. Effectiveness of HR provisions. Effectiveness of HR provisions requires 1. Factual implementation of HR standards —> social change (political reforms, social policies, budget measures, education, cultural shift, etc.) 26 2. Formal implementation of HR provisions —> guarantees (political, monitoring and adjudicatory procedures) Factual implementation: Mainstreaming HR: ‘the process of assessing the human rights implications of any planned action including legislation, policies or programs, in all areas and at all levels. It is a strategy for making human rights an integral dimension of the design, implementation, monitoring and evaluation of policies and programs in political, economic and social spheres’. Formal implementation of HR (normativity) - Primary rules require secondary rules on guarantees - international regimes - internal (domestic=national) (and local) systems and measures international implementation regimes: - political/diplomatic settings (eg UN GA, SC, Ecosoc, HRC; the Parliamentary Assembly of the CoE…) o legal basis: treaties (IOs’ statutes), customary law, unilateral acts, political commitments, diplomatic platforms… o CSOs’ role: advocacy, campaigns, calls for action, etc.) - Monitoring procedures (eg HRC’s special procedures and fact finding; Treaty Bodies; expert committees within various IOs - eg OAS CommissionHR, AU Commission of human and peoples’ rights, CoE social rights commission…) o Legal basis: treaties (including IO statutes) o CSOs’ role: shadow reports, independent fact-finding, thistle-blowing, awareness raising, specialized expertise, research and training…) - Quasi-adjudicative and Adjudicative procedures (individual communications to Treaty Bodies and other individua. petitions systems, litigations at ECtHR, IACtHR, ACtHPR; the ICJ; the ICC) o legal basis: treaties o CSOs’ role: strategic litigation, amici curiae, awareness raising, specialized expertise international implementation regimes: - Political/diplomatic settings (HRC’s UPR) - Monitoring procedures (TB state reports, individual petitions) - Adjudicative procedures 27 - A hearing took place in public in the Human Rights Building, Strasbourg, on 9 June 2010. 1. Hazim Al-Skeini - killed on 4 August 2003 by Sergeant A, while participating to a funeral ceremony 2. Muhammad Salim, who was shot and fatally wounded by Sergeant C at midnight, 6 Novembre 2003 during a search-and-arrest operation 3. Hannan Mahaibas Sadde Shmailawi, who was shot and fatally wounded on 10 November 2003 during a fire-fight between UK troops and armed people 4. Waleed Sayay Muzban, aged 43, was shot and fatally injured on the night of 24 August 2003 by Lance Corporal S. at a check-point 5. Ahmed Jabbar Kareem Ali died on 8 May 2003, aged 15, after he was arrested by a UK patrol while allegedly involved in a looting; UK soldiers were acquitted but Waleed’s father was nevertheless given a sum as “reparation” 6. Baha Mousa, was aged 26 when he died whilst in the custody of the British Army, three days after having been arrested by soldiers on 14 September 2003. British soldiers were convicted for inhuman treatment and Mousa’ family received monetary reparation. Internal proceedings. - On 26 March 2004, the Secretary of State for Defense decided, in connection with the deaths of 13 Iraqi civilians including the relatives of the six applicants, (1) not to conduct independent inquiries into the deaths; (2) not to accept liability for the deaths; (3) not to pay just satisfaction. The applicants appealed. - Findings of the UK courts: the deaths as a result of military operations in the field, such as those complained of by the first four applicants, did not fall within the United Kingdom's jurisdiction under Article 1 of the ECHR. The death of the sixth applicant's son, in a British military prison, did fall within the jurisdiction. - the House of Lords upheld the courts’ decisions: “It is one thing to recognise [exceptional cases of extraterritorial jurisdiction under art. 1 ECHR]; it would be quite another to accept that whenever a contracting state acts (militarily or otherwise) through its agents abroad, those affected by such activities fall within its article 1 jurisdiction. Such a contention would prove altogether too much.” International law relevant material. IHL norms • Articles 42 to 56 of the 1901 Hague Regulations concerning the Laws and Customs of War on Land, esp. Arts. 42 and 43: “42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” • Articles 27 to 34 and 47 to 78 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949), esp. Art. 64. 30 • Provisions of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. On the relationship between HR and IHL norms International Court of Justice's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004): “106. ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation […] some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. 111. In conclusion, the Court considers that the [ICCPR] is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory [in the course of a military occupation].” ICJ judgment Armed Activities on the Territory of the Congo (Democratic Republic of Congo (DRC) v. Uganda), (19 Dec 2005): “179. The Court, having concluded that Uganda was an occupying Power in Ituri at the relevant time, finds that Uganda's responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.” (Duty to investigate) 92.  Article 121 of the Third Geneva Convention provides that an official enquiry must be held by the detaining power following the suspected homicide of a prisoner of war. Article 131 of the Fourth Geneva Convention provides: “Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power. The Geneva Conventions place an obligation on each High Contracting Party to investigate and prosecute alleged grave breaches of the Conventions, including the willful killing of protected persons (Articles 49 and 50 of the First Geneva Convention; Articles 50-51 of the Second Geneva Convention; Articles 129 and 130 of the Third Geneva Convention; Articles 146 and 147 of the Fourth Geneva Convention). Report no. E/CN.4/2006/53 (2006) on Extrajudicial, Summary or Arbitrary Executions (Philip Alston): “36. Armed conflict and occupation do not discharge the State's duty to investigate and prosecute human rights abuses. The right to life is nonderogable regardless of circumstances. … It is undeniable that during armed conflicts circumstances will sometimes impede investigation. … On a case-by-case basis a State might utilize less effective measures of investigation in response to concrete constraints. For example, when hostile forces control the scene of a shooting, conducting an autopsy may prove impossible. Regardless of the circumstances, however, investigations must always be conducted as effectively as possible and never be reduced to mere formality. ...” Jurisdition ratione personae UK contended that, since the second and third applicants' relatives had been killed after the adoption of United Nations Security Council Resolution 1511 (16 October 2003), the acts which led to their deaths were attributable to the United Nations and not to the United Kingdom. 31 however, the Court considers that the Government did not contend before the national courts that any of the killings of the applicants' relatives were not attributable to United Kingdom armed forces but to the UN; therefore, the Government are estopped from raising this objection in the present proceedings. Jurisdiction art. 1 ECHR: “The high contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section I of this Convention” UK position: • jurisdiction is essentially territorial (as the ECtHR found in Bankovic, 2000) • in exceptional circumstances facts occurred abroad are under the jurisdiction of a ECHR state party. - According to an extended application of the territorial principle: o when state officers operate in a foreign[European] state territory where it exercise “effective control”. Military occupation does not imply effective control o when state officers operate in a state embassy abroad, in a ship in international waters, and in a military base - According to the “State agent authority” principle: o where state agents exercise “legal authority” on persons abroad, e.g. the police is arresting an individual (Ocalan-type cases) • All ECHR rights must be secured by a state party: “the rights and freedoms defined in Section I of this Convention” cannot be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question. • this explains why states are essentially bound by the ECHR provisions only when they operate within their respective territories: only there they can effectively secure all hr. The same applies abroad in as much as the territory is under their effective control • the “State agent authority” principle cannot imply the state extraterritorial jurisdiction just because the consequences of its agent’s action have affected an individual • moreover, extending too far the European states obligations based on the ECHR would correspond to human rights imperialism. THUS (UK application of the previous principles): • South-East Iraq, although subject to UK military occupation, was not under their effective control • UK soldiers were conducting military operations and vested with military powers • street patrol activity in Iraq were not diverse from aerial bombardments carried out in Serbia and Kosovo. The ECHR in Bankovic maintained that a bombing campaign does not entail effective control • in the case of the sixth applicant, however, since his death occurred in the detention facilities of a UK military base, the government admits that the facts were under its jurisdiction. 32 Question: is state immunity to prevail over human rights based claims (including allegations of torture), or is the human rights clause to take priority (especially when violated human rights are protected by a ius cogent provision)? - state immunity as a ratione personae bar (heads of states, etc.) - State immunity as a ratione materiae issue (official acts of a state officer engage the responsibility of the state - hence a case brought against the officer would be like a case against the state. Immunity should therefore apply also in such circumstances). Can the commission of a crime (eg torture) be considered an official act of the state? if the answer is no —> no state immunity ratione materiae (only personae) if the answer is yes —> state immunity shields both the officer and the state Jones is similar to Al Adsany, decided by the ECtHR in 2001: immunity prevailed - no violation of art. 6 ECHR. - there was no clear evidence in IL of state immunity set aside in civil proceedings before national courts against foreign states or state officials. - Possible exceptions: criminal cases (including based on “universal jurisdiction” established by the CAT - Pinochet case, 1998) (not in case of ratione personae immunity) Is there any reasons to depart from such a finding? According to the CAT Committee not only criminal prosecutions, but also civil claims for redress should be allowed against foreign countries (or foreign country state officials) in national courts: “The Committee has commended the efforts of States Parties for providing civil remedies for victims who were subjected to torture or ill-treatment outside their territory.” This is however controversial. Civil cases where national courts have dismissed state immunity: •cases based on the Alien Tort Claims Act in the USA - “While this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.” •Ferrini jurisprudence in Italy (ius cogens exception) - but the ICJ has found it in breach of IL (Germany v Italy, 2012) •Swiss court: “It would be paradoxical to affirm the intention to prevent grave violations of human rights while at the same time accepting a wide interpretation of rules on State immunity ratione materiae to the benefit of State officials, thus hindering any investigation into such allegations.” (but this was a criminal case) The UN Jurisdictional Immunities Convention (2004) does not include an exception to State immunity based on an alleged violation of jus cogens norms (“jus cogens exception”). Conclusions of the ECtHR: the Germany vs Italy case (2012) proves that Al Adsany has to be upheld: no jus cogens exception to State immunity had yet crystallised. … It follows that there has been no violation of Article 6 § 1 of the Convention as regards the striking out of Mr Jones’ complaint against the Kingdom of Saudi Arabia. As for the claims brought against the state officials: acts performed by State officials in the course of their service are to be attributed, for the purposes of State immunity, to the State on whose behalf they act. Therefore, state immunity 35 operates. Even torturers are deemed to be “acting in an official capacity” “The question whether the Convention against Torture has given rise to universal civil jurisdiction (as the CAT maintains) is therefore far from settled”… International law and domestic courts on state immunity. Italian Constitutional Court, Judgment No 238/2014 1. The Tribunal of Florence questions the constitutionality of certain provisions that require that the Tribunal deny its jurisdiction with regard to three proceedings brought against the Federal Republic of Germany (FRG). [These proceedings were initiated] by three Italian citizens in order to obtain compensation for damages suffered during World War II, when they were captured by German military forces and deported to Germany to perform slave labour in concentration camps. 3.1. … In its Judgment of 3 February 2012, the ICJ stated that, for the time being, there are insufficient elements in international practice to infer the existence of a derogation from the norm of immunity of States from the civil jurisdiction of other States for acts jure imperii in case of war crimes and crimes against humanity, in breach of fundamental human rights. [That such crimes were committed] was established by the ICJ and was also admitted by the FRG itself. The same Court also expressly recognized (see Judgment, page 144, para. 104) that the lack of jurisdiction of the Italian judges entails the sacrifice of fundamental rights of the individuals who suffered from the consequences of crimes committed by the foreign State. This was confirmed by the defense of the FRG as well, which excluded the existence of other judicial remedies for the victims of the aforementioned crimes. According to the Constitutional Court there has been a trend towards reducing state immunity - now limited to acts put in place iure imperii (as confirmed by the UN 2004 convention on state immunity) since a blank state immunity from civil proceedings for iure imperii acts consisting in hr violations and crimes against humanity is incompatible with the fundamental principles of the Italian Constitutions (as referred to in art. 2 and 24), those customary international law norms (as interpreted by the ICJ) have never entered the Italian legal system notice that the Italian court “balanced” IL and domestic law: it was not a pure application of Italian constitutional principle as separate from the IL system (“dualism”) (as it was in Kadi before the EUCJ (2014)…). Two Italian law provisions are thus unconstitutional: - the law of accession to the UN, whereby it implies recognition of the binding character (ex art. 94 UN Charter) of ICJ judgments - as far as this applies to the Germany vs Italy case (not to any ICJ decisions as such) - art. 3 of the 2013 law of ratification of the 2004 treaty on state immunity, because it ordered Italian courts to dismiss any application in contravention to the Germany vs italy ICJ decision. In the Italian Constitutional Court’s interpretation, IL cannot apply state immunity without considering some circumstances such as the ius cogens nature of provisions violated, the human rights protection of victims, the duty/right to redress (The judgment, although paying deference to the ICJ, is challenging the Germany vs Italy jurisprudence). 36 UN HR MACHINERY. UN HR Council and the UPR. In larger freedom: towards development, security, and human rights for all. Report of the Secretary-General. A/59/2005. “States have sought membership of the commission on human rights not to strengthen human rights but to protect themselves against criticism or to criticize others.” The Human rights were underrepresented. They wanted to create a human rights council to put them in the same level in the international political agenda. UN HR COUNCIL. Its founders endowed the UN with 3 councils, each having major responsibilities in its own area: the security council, the economic and social council, and the trusteeship council. I believe we need to restore the balance, with 3 councils covering respectively: (a) international peace and security, (b) economic and social issues, (c) and human rights, the promotion of which has been one of the purposes of the organization from its beginnings but now clearly requires more effective operational structures. For years, we could only find generic agreements between states on which it was stated that they were going to respect certain human rights. These Councils together should have the task of driving forward the agenda that emerges from summit and other conferences of member states and should be the global forms in which the issues of security, development and justice can be properly addressed. The first two councils, of course, already exist but need to be strengthened. The third requires a far-reaching overhaul and upgrading of our existing human rights machinery. The increasing frequency of the security council’s invitations to the High Commissioner to brief it on specific situations shows that there is now a greater awareness of the need to take human rights into account in resolutions on peace and security. The High Commissioner and her office need to be involved in the whole spectrum of UN activities. But this can only work if the intergovernmental foundations of our human rights machinery are strong. Is connected to the main level of the UN, where all the countries are represented. - The council shall consist of forty-seven Member States. - Shall be elected directly and individually by secret ballot by the majority of the members of the General Assembly; (some states and the Eu favored a ¾ majority). - The membership shall be based on equitable geographical distribution. o Group of African states, 13; (28%- like in the commission.) o Group of Asian states, 14; (28%, were 23% in the commission.) o Group Eastern European estates 6; (6%, they were 5% in the commission). o Group Latin American and Caribbean states, 8; (17%, they were 21% in the commission). o Group Western European and other states, 7; (15%, they were 19% in the commission). - Members of the council shall serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms. 37 Venezuela, introducing draft resolution L34 on behalf of the Non-Aligned Movement, said it also enjoyed co-sponsorship of Jordan on behalf of the Arab Group and Togo, on behalf of the African Group… Cuba, speaking in a general comment, said that… Countries expressing opposition to this draft resolution were the very same countries imposing unilateral coercive measures. Those countries sought to bring double standards to the Council. Cuban people knew too well the consequences and impact of unilateral coercive measures, having been subjected to the economic and trade blockade imposed on Cuba by the United States. Slovakia, speaking on behalf of the European Union reiterated that the introduction and implementation of restrictive measures must always be undertaken in accordance with international law. Such measures must respect human rights and fundamental freedoms, in particular due process and the right to an effective remedy. The measures imposed must always be proportionate to their objective. Sanctions were one of the European Union’s tools to promote the objectives of the Common Foreign and Security Policy: peace, democracy, and respect for the rule of law, human rghts and international law. They were always part of a comprehensive policy approach involving political dialogue and complementary efforts. The EU’s restrictive mesasures were not punitive in nature but sought to bring about a change in the policy or conduct of those targeted. Measures therefore always targeted at such policies or activities, the means to conduct them and those respoisble for them… Nonetheless, bearing in mind the nature and content of this draft resolution, which dwelled essentially on relations between States instead of on concrete human rights of individuals, the European Union recalled its position that it considered that the Human Rights Council was not the appropriate forum to address this issue. Finally, the European Union could not support any of the new elements introduced in this resolution. Its longstanding position that sanctions were nor intrinsically unlawful in nature prevented them from supporting the premise that their imposition must give rise to accountability or reparations… For the above-mentioned reasons, the European Union could not support the draft resolution and called for a vote. The European Union Member States that were members of the Human Rights Council would vote against the resolution. United States, in an explanation of the vote before the vote, once again categorically rejected the premise that underlined the mandate of the Special Rapporteur on unilateral coercive measures. The imposition of targeted sanctions did not violate human rights. In fact, targeted sanctions could be a powerful tool to promote human rights accountability for those who violated or abused human rights. The resolution before the Council today blatantly mischaracterized international law and called into question legitimate practices undertakes by many United Nations Member States, Sanctions, whether unilateral or multilateral, could be a successful means of achieving foreign policy objectives. Financial sanctions, vans on technology and arms transfers, and travel restrictions helped impede the ability of designated persons from engaging in actions that threatened international peace and security. In cases where the United States had applied sanctions, the measures had been implemented with specific objectives in mind, including as a means to promote the rule of law of democratic systems, to promote human rights and fundamentals freedoms, or to encourage improved resource governance… For these reasons, the United States would vote “no” on the resolution and urged all delegations to vote against. Brazil, in an explanation of the vote before the vote, condemned unilateral coercive measures as they were contrary to international law, international humanitarian law, and the United Nations Charter. Brazil stressed their potential negative impact on the enjoyment of human rights. Brazil was, nevertheless, concerned about some new elements in the draft resolution, such as the 40 possible United Nations declaration on the negative effects of unilateral coercive measures, which would require more time for negotiations due to the complexities of the issue. The situation in Venezuela had created a dilemma with regard to Brazil’s traditional position on the matter. In Venezuela threats against human rights defenders were the result of the policies administered by the Venezuelan Government itself, such as using access to food to influence the popular will. Brazil thus decided to abstain on the draft resolution. SPECIAL PROCEDURES. Mandate-holders will act in their personal capacity. Individuals holding decision-making positions in Government or in any other organization or entity which may give rise to a conflict of interest with the responsibilities inherent to the mandate shall be excluded. A consultative group would be established to propose to the President, at least one month before the beginning of the session in which the Council would consider the selection of mandate- holders, a list of candidates who possess the highest qualifications for the mandates in questions and meet the general criteria and particular requirements. New mandates should be as clear and specific as possible, so as to avoid ambiguity. Thematic mandate periods will be of three years. Country mandate periods will be of one year. SUBSIDIARY BODIES AND PROCEDURES. Human rights council advisory committee. The Human Rights Council Advisory Committee, composed of 18 experts serving in their personal capacity, will function as a think-tank for the Council and work at its direction. African States: 5. Asian States: 5. Eastern European States: 2. Latin American and Caribbean States: 3. Western European and other States: 3. The members of the Advisory Committee shall serve for a period of three years. The Advisory Committee shall convene up to two sessions for a maximum of 10 working days per year. Complaint procedure. To address consist patterns of gross and reliably attested violations of all human rights. ECOSOC resolution 1503 (XLVIII) of 27 May 1970 as revised by resolution 2000/3 of 19 June 2000 served as a working basis. - The complain procedure is impartial, objective, efficient. 41 - Confidential nature, with a view to enhancing cooperation with the State. - NHRI, established and operating under the Paris Principles may serve to address individual HR violations. - The Advisory Committee shall appoint one member for each Regional Group (gender balanced required) to the Working Group on Communications (WGC) for a period of three years. 2 steps. - Working Group on Communications (independent experts of the Advisory Committee) o Composed by members of the Advisory Committee, appointed for three years. Their mandate is renewable only once. o It may: dismiss a communication; keep a communication under review and request the State concerned to provide further information within a reasonable time; or transmit the complaint to the Working Group on Situations. - Working Group on Situations (State representatives) o Comprises of five members appointed by the regional groups from among the States Members of the Council for the period of one year (mandate renewable once). o On the basis of the information and recommendations provided by the Working Group on Communications o It presents the Council with a retort on consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms. o And makes recommendations to the Council on the course of action to take (draft resolution) o Members may keep a case under review until its next session. o The Working Group on Situations may also decide to dismiss a case. High- Level Segment The High-Level Segment shall be held once a year during the main session of the Council. It shall be followed by a general segment wherein delegations that did not participate in the High- Level Segment may deliver general statements. Special sessions of the Council. The request (supported by 1/3 of HRC members) shall be submitted to the President and to the secretariat of the Council. The request shall specify the item and include any other relevant information the sponsors may wish to provide. 2006-2018: 27 special sessions: Occupied Palestine: 2006, 2006, 2008, 2009, 2009, 2014, 2018; Iraq (ISIS): 2014; Lebanon: 2006; Darfur 2006; Myanmar: 2007, 2017; World food crisis: 2008; DRC: 2008; Financial crisis: 2009; Sri Lanka: 2009; Haiti: 2010; Cote d’Ivoire: 2010; Libya: 2011; Syria: 2011, 2011. 2011, 2012, 2016; Central African Republic: 2014; Nigeria (Boko Haram): 2015; Burundi: 2015; South Sudan: 2016; - The Expert Mechanism on the Rights of Indigenous Peoples o one annual session, usually in July - Forum on Minority Issues 42 (b) If there exists substantiated evidence of influence from proceeds resulting from internationally recognized criminal activities such as the illicit drugs trade, money-laundering or the illegal arms trade; (c) If, within the preceding three years, an organization did not make any positive or effective contribution to the work of the United Nations and, in particular, of the Council or its commissions or other subsidiary organs. …59. An organization whose consultative status or whose listing on the Roster is withdrawn may be entitled to reapply for consultative status or for inclusion on the Roster not sooner than three years after the effective date of such withdrawal.2 THE UPR.- HR Council Resolution 5/1 Basis of the review (a) The Charter of the United Nations; (b) The Universal Declaration of Human Rights; (c) Human rights instruments to which a State is party; (d) Voluntary pledges and commitments made by States, including those undertaken when presenting their candidatures for election to the HRC. The review shall take into account applicable international humanitarian law. Principles: (a) universality, interdependence, indivisibility, interrelatedness of all HR; (b) cooperative, based on objective and reliable information and interactive dialogue; (c) Ensure universal coverage and equal treatment of all States; (d) intergovernmental process, UN Member-driven and action-oriented; (e) Fully involve the country under review; (f) Complement and not duplicate other HR mechanisms, thus an added value; (g) objective, transparent, non-selective, constructive, non-confrontational, non-politicized; (h) Not burdensome to the concerned State or to the agenda of the Council; (i) Not be overly long; realistic and not absorbing a disproportionate amount of resources; (j) Not diminish the Council’s capacity to respond to urgent HR situations; (k) Fully integrate a gender perspective; (l) take into account the level of development and specificities of countries; (m) Ensure the participation of all relevant stakeholders, including NGOs and NHRI Objectives (a) improvement of the human rights situation on the ground; 45 (b) fulfillment of the State’s human rights obligations and commitments and assessment of positive developments and challenges; (c) The enhancement of the State’s capacity (d) The sharing of best practice among States and other stakeholders; (e) Support for cooperation in the promotion and protection of human rights; (f) cooperation and engagement with the Council, HR bodies and the OHCHR Documentation The documents on which the review would be based are: (a)national report, on the basis of general guidelines of 20 pages States are encouraged to prepare the information through a broad consultation process at the national level with allrelevant stakeholders; (b) a compilation prepared by the OHCHR of the information contained in the reports of treaty bodies, special procedures - 10 pages; (c) Additional, credible and reliable information provided by other relevant stakeholders. The OHCHR will prepare a 10 page summary Format of the outcome • summary of the proceedings of the review process; • conclusions and/or recommendations, • voluntary commitments of the State concerned. Follow-up to the review • the outcome should be implemented primarily by the State concerned and, as appropriate, by other relevant stakeholders. • The subsequent review should focus, inter alia, on the implementation of the preceding outcome. • The international community will assist in implementing • the Council will decide if and when any specific follow-up is necessary. • the Council will address, as appropriate, cases of persistent non-cooperation with the mechanism. 46 NATIONAL CHALLENGES. - Ongoing growth in human rights mechanisms (international and regional), reporting requirements and number of human rights recommendations addressed to States. - Timely and quality reporting demand sustainable technical expertise. - Quality reporting requires effective follow-up and implementation of recommendations by many Ministries and at the local level. Ad-hoc arrangements are not viable anymore. 47 - Retains its institutional capacity, practices, network or knowledge for reporting and follow-up; however, it does so within one ministry. Inter-Ministerial NMRF - A standing mechanism convened across two or more ministries through a joint structure. - Often serviced by an executive secretariat located in one Ministry, such as the Ministry of Foreign Affairs (Portugal) or the Ministry of Justice (Senegal)/ the Attorney General’s Office (Bahamas), or the Office of the Prime Minister (Mauritius, Tunisia), that coordinates information collection, services the meetings of the national mechanism and compiles a first draft or reports. - Mostly established through a formal legislative mandate. - Regularly convenes its network of members as well as ministerial human rights focal points. - Retains its institutional capacity, practices, network and knowledge for reporting and follow-up. - Mainstreams human rights and builds a key reporting and coordination capacities across multiple ministries. Institutionally separate NMRF - A separate institution established by the Government and responsible for coordination, report writing and consultation. - Endowed with a separate budget, separate staff, and structured into internal directorates, programs and subprograms. - Institutionalized and maintained by the Government beyond the completion of individual reports. - Retains its skills and knowledge and is able to control its own budget and appoint staff independently. KEY FEATURES. - A Governmental structure. - Comprehensive (covers all human rights mechanisms – UPR, TBs, Special Procedures- all human rights- all outcomes: recommendations, decisions, and views). - Standing/permanent/ ad hoc, - Comprehensive formal legislative or policy mandate ensuring political ownership (empower within Ministries). o Legislation (passed through Parliament) o Formal regulation (by the Executive, but not through Parliament) o Policy mandate (formed after the adoption of an Executive/Ministerial policy provision) - Budget (forward planning within each Ministries budgets). - Continuity and technical expertise of staff (train staff, institutional memory, gender sensibility and gender parity). - And four capacities. FOUR KEY CAPACITIES OF A NMRF. An effective NMRF should have the following four key capacities: - Engagement capacity. - Coordination capacity. - Consultation capacity. 50 - Information management capacity. ENGAGEMENT CAPACITY The capacity to engage and liaise with international and regional human rights bodies and organize and centrally facilitate the preparation of reports and responses to international and regional human rights mechanisms. This may include: - A dedicated capacity and knowledge (e.g. through the establishment of permanent Executive Secretariat for such purposes with trained staff knowing about each international human rights mechanism) - Ministerial focal points. - The establishment of standardized internal reporting guidelines and procedures or checklists to organize Special Procedures visits. INTERNATIONAL CRIMINAL LAW. After WWI, we find a couple of articles on the treaty of Versailles in which is discussed how to punish the guilty ones. The winner of the war is the one that established this and who decided who were the guilty ones. General principles in ICL are typical of the common law systems. What is a[n international] crime: Criminal conduct: - material element (actus reus): o action or omission (a specific behaviour or a series of actions or omissions, requiring immediate or continued implementation) o event: actual harm or a danger related to the action itself through a causality link. - mental element (mens rea) o dolus (intent) o culpa (negligence) - defences : circumstances excluding o wrongfulness of the conduct (including the principle of legality) or o responsibility of the agent Crimes under international law. Complex crimes requiring a context: - Armed conflict international or internal -> war crimes. - Widespread or systematic attack against a civilian population-> crimes against humanity. - Genocide is theoretically not associated to any special context, but in reality, it occurs in situations characterized an armed conflict or gross human rights violations. Mental element; psychological correlation action- perpetrator’s will (mens rea). - Intentional conduct (knowledge + intent= dolus) 51 o The perpetrator was aware of the criminal act (action+ event). o The perpetrator wanted it to happen.  A specific intent (a goal) -dolus specialis- is sometimes required. Eg: genocide. - Recklessness. The perpetrator consciously disregarded a substantial and unjustifiable risk that the material element materializes in/or will result from his/her conduct (recklessness, or dolus eventualis). - Gross negligence: the perpetrator, considering the nature and purpose of her conduct and the circumstances known to her, committed o a gross deviation from the standard of prudence, care, technical knowledge of a reasonable person in that situation, so big as to appear a conscious violation of the others’ right to safety. - Negligence the perpetrator deviated from the standard of care/attention/technical expertise of a reasonable person in that situation Acts committed merely with negligence go generally unpunished in ICL Wrongfulness of the conduct - principle of legality. IMT: substantive legality ICC: formal legality: nullum crimen sine lege (“law” = the Rome Statute ) - prohibition of analogy - principle of favor rei in cases of ambiguity of a subsequent legis novatio Individual Criminal Responsibility “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” A person is not guilty of an offence unless she acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offence. Strict liability Article II (d) of Control Council Law No. 10: it is a crime to belong to a criminal group or organization declared criminal by the IMT: Nazi SS, the Secret Service of the SS (SD) and the German secret police (GESTAPO). Incapacity: not punishable perpetrators. ICC: are not punishable those who perform the criminal conduct under conditions of incapacity to control their behaviour due to mental illness or deficiency or involuntary intoxication. Under-age perpetrators are not punishable. Irrelevance of official position/immunity Art, 27 ICC Attempt and inchoate crime ICC: an attempt to commit a crime is punishable when there is a) a willingness to commit the crime; b) acts that commence its execution; 52 Article 12. Preconditions to the exercise of jurisdiction. 1. A State which becomes a Party to this Statue thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statue or have accepted the jurisdiction of the Court in accordance with paragraph 3: a. The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration od that vessel or aircraft. b. The State o which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to his Statue is required under paragraph 2, that State may, by declaration lodged with Registrar accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. Article 13. Exercise of jurisdiction. The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of theis Statue if: a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State party in accordance with article 14. b) A situation in which one or more of such crimes appeats to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the UN. c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. Article 14. Referral of a situation by a State Party. 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation. War crimes. Ius in bello =/= ius ad bellum. Crimes against humanity. Genocide. Aggression. Article 5. Crimes within the jurisdiction of the Court. 55 The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The court has jurisdiction in accordance with this Statue with respect to the following crimes: a. Genocide. b. Crimes against humanity. c. War crimes. d. Aggression. Article 6. Genocide. For the purpose of this Statute, genocide means any of the following acts committed with intent of destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. Killing members of the group. b. Causing serious bodily or mental harm to members of the group. c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. d. Imposing measures intended to prevent births within the group. e. Forcibly transferring children of the group to another group. Article 7. Crimes against humanity. 1. For the purpose if this Statue ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: a. Murder. b. Extermination. c. Enslavement. d. Deportation or forcible transfer of population. e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. f. Torture. g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. i. Enforced disappearance of persons. j. The crime of apartheid. k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: a. ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” b. "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; 56 c. "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; d. "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; e. "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; f. "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; g. "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; h. "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; i. "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above. Article 8. War Crimes. 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, ‘war crimes’ means: a. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: i. Wilful killing ii. Torture or inhuman treatment, including biological experiments; iii. Wilfully causing great suffering, or serious injury to body or health; iv. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 57 c. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: i. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; ii. Committing outrages upon personal dignity, in particular humiliating and degrading treatment; iii. Taking of hostages; iv. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. d. Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. e. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: i. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; ii. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; iii. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; iv. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; v. Pillaging a town or place, even when taken by assault; vi. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; vii. Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; 60 viii. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; ix. Killing or wounding treacherously a combatant adversary; x. Declaring that no quarter will be given; xi. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; xii. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; f. Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. Crime of aggression. 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: a. The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; b. Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; c. The blockade of the ports or coasts of a State by the armed forces of another State; d. An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State. e. The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the 61 conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f. The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; g. The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. INTERNATIONAL HUMANITARIAN LAW. International Humanitarian Law (IHL) consists of “the rules applicable in armed conflict set forth in international agreements [to which the Parties] and the generally recognized principles and rules of international law which are applicable to armed conflict.” (Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, Article 2 (b)). - 1864. Convention for the Amelioration of the Condition of he Wounded and Sick in Armies in the Field. - 1868. St. Petersburg Declaration enunciates the cardinal principles on the matter: o The progress of civilization should have the effect of alleviating as much as possible the calamities of war. o The only legitimate object which States should endeavor to accomplish during war should be weakening the military forces of the enemy. - 1899 & 1908: international peace conferences at The Hague – Hague Regulations. o “To preserve peace and prevent armed conflicts between nations”. So called Hague Law: general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants of the theatre of operations. Soon most Hague Law provisions attained the status customary international law. - 1923: Draft Hague Rules of Aerial Warfare. - 1925: Geneva conventions prohibiting the use in war of asphyxiating, poisonous or other gases. - 1929: convention relative to the treatment of prisoners of war (POW) integrating the Hague Convention. - 1949. The four Geneva Conventions of 12 August (GCs): a comprehensive and systematic codification of humanitarian law, virtually universal, and reviewed in accordance with the radical political, strategic and technological transformations introduced by WWII. - 1954. The Hague Convention for the Protection of Cultural Property (CPC) compels States to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments, provided they are not used for military purposes. - 1977-2005: Additional protocols to the Geneva Conventions. o Protocol I: it deals with situations referred to in Common Articule 2 to the Geneva Conventions (war between States+ belligerent occupation). In addition to protect victims of war, it provides a set of detailed rules on the conduct of hostilities (Geneva + The Hague). o Protocol II develops and supplements Article 3 common to the GCs, which applies to armed conflicts not covered by Common Article 2 CG and Article 1 of Protocol I, namely armed conflict not of an international character. o Protocol II on the protective emblems (2005). 62 planning of commission of specific acts contrary to international law. That control was not so strong as to determine the issuing of precise directives and orders, because in that case it would be an effective control. The State had however a role in organizing, coordinating and planning the operations carry out by armed forces, militias, or paramilitary groups involved in the internal armed conflict. When insurgents succeed in the constitution of a separate entity which shows the characters of a State (permanent population, defined territory, government powers, and capacity to enter international relations), i.e. whereas the conflict becomes a dispute between “two political entities, equal in law, similar in form”, the conflict turns into international. The existence of a further category of armed conflicts, namely transnational armed conflicts, is controversial. - Conflicts that have involved the Democratic Republic of Congo and some boundary regions belonging to different States, where several insurrectional formations are involved. - The so-called war on terror. o Hamdan vs Rumsfeld: an Appeal Court of the US sustained the war on terror was not a conflict under Article 2 common to the GC, since Al Qaeda is a non- State actor. The Court excluded also the application of the minimum humanitarian standard provided in Common Article 3. IHL was not applicable. o The US Supreme Court ruled that “non-international” equates to “not involving States”, and that in the conflict against Al Qaeda, as well as in every conflict other than a war between States, individuals captured in combat were not prisoners of war, but were nevertheless entitled to the human treatment embodied in Common Article 3 (IHL still applicable). Armed conflict vs internal situations of disturbances and tensions. Internal conflicts vs situations of internal disturbances and tensions. In order to apply Common Article 3 the armed violence must be relevant, that is, impossible to face with the sole law-enforcement apparatus. The determination of the existence of an internal armed conflict is based on two criteria: - The intensity of the conflict - Organization of the parties For example, the situation in Syria adequately satisfies these two requirements, at least from Spring-Summer 2013 until 2019. The Rome Statue of the International Criminal Court (ICC), in matter of repression of war crimes refers to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. This wording reproduces the definition issued by the Appeals Chamber of the ICTY in Tadic. IHL application ratione temporis According to Protocol I, IHL applies from the beginning of any situation of armed conflict and ceases on the general close of military operations. In the case of occupied territories, on the termination of the occupation. (See however Israel- Palestine sui generis occupation…) The Geneva Convention III on POW remains applicable until POW are released and repatriated. 65 IHL application ratione loci. IHL applies in • The territory of belligerents, • areas in which hostilities are effectively conducted, and • in occupied territories, even when the Occupying Power does not encounter armed resistance. Some areas acquire a particular status following the will of the belligerent parties: - non-defended localities : any inhabited places near or in a zone where armed forces are in contact, which are open for occupation by an adverse party. - demilitarized zones: The parties to the conflict may agree to confer to some areas the status of demilitarized zones in which all combatants, as well as mobile weapons and military equipment, must have been evacuated and within which it is prohibited for the parties to extend their military operations. - exclusion zones (disputed legality): area in which neutral shipping are either barred or put at special risk. Entering the exclusion zone in fact triggers an immediate armed reaction - no-fly zone : A belligerent party may establish and enforce a no-fly zone in its own or in enemy airspace. Aircraft entering a no-fly zone without specific permission are liable to be attacked, since any non-authorised presence of an aircraft is considered as an indicator of hostile intent (a credible threat). o Entering the interdicted zone however is not per se a valid reason to derogate from the principles of discrimination and precaution (the IDF, during operation Cast Lead, created “areas near the border that are classified as death zones (emphasis added),” in which “[t]he open-fire regulations permit firing at Palestinians found in these zones even if they are not life-threatening,” 12 IHL - Basics Application of IHL. IHL application ratione personae. International humanitarian law applies ratione personae. - To State and their organs, but also - To non-state actors – such as a de facto regime – and - To individuals - The possibility to apply IHL to other non- State actors, including private companies, is under discussion. IHL protects individuals belonging to specific categories. Among them, civilians, but also combatants (members of an armed force) who are - Sick, wounded and shipwreck (hors de combat) - Prisoners of war (POW) During hostilities, civilians are always protected, and combatants are protected by the provisions against - Perfidy - The employment of weapons, means, and methods of combat of a nature to case superfluous injury or unnecessary suffering. Noncombatant members of armed forces are: - Medical personnel. - Chaplains 66 - Persons accompanying the armed forces without actually being members thereof enemy civilians are protected persons, unless and for such time as they take a direct part in hostilities. Protocol I, art 37. Prohibition of perfidy. 1- It is prohibited to kill, injure or capture and adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy: a. The feigning of an intent to negotiate under a flag of truce or of a surrender b. The feigning of an incapacitation by wounds or sickness. c. The feigning of civilian, non-combatant status. d. The feigning of protected statues by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict. 2- Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation. HAGUE REGULATION ON COMBATANTS. In the IV Hague Convention of 1907, the expressions combatants and non-combatants indicate members of a State’s armed forces. If captured, they are entitled to the POW status. Militias and volunteers – so called irregular formations – may be considered as members of a state armed forces if they - Are commanded by a person responsible for his subordinates. - Have a fixed distinctive emblem recognizable at a distance. - Carry arms openly. - Conducts operations in accordance with the laws and customs of war. According to the Geneva conventions (GC III, Article 4) Combatants are: • Members of armed forces • Members of irregular formations belonging to a Party to the conflict that fulfill the 4 mentioned criteria • members of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, provided that they fulfil the 4 cited conditions • Members of regular armed forces who profess allegiance to a government or an authority not recognized by the adversary Noncombatants are members of the armed forces exercising non-combat functions: • medical personnel • chaplains, • persons accompanying the armed forces: • civilian members of crews of military aircraft, and 67 • ICRC: Individuals whose continuous function involves the preparation, execution, or direct command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function (CCF). The concept of continuous combat function distinguishes members of the organized fighting forces of a non-State party from civilians who participate in combat on a merely spontaneous, sporadic, or unorganized basis, and from those who assume exclusively political, administrative or other noncombat functions. • Supreme Court of Israel : Against the majority of scholars, the Court suggested an extensive interpretation, which includes the whole functions performed by a combatant (the Court used the phrase “performing the function of combatants”), including the functions of those who perform intelligence activities, carry militiamen to and from the theatre of the operation, deal with the efficiency of weapons used by the fighters, and, finally, those who supervise guerrilla actions (“functional perspective”). AP I, ARTICLE 51—PROTECTION OF THE CIVILIAN POPULATION 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. […] 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: a. those which are not directed at a specific military objective; b. those which employ a method or means of combat which cannot be directed at a specific military objective; or c. those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; […] 5. Among others, the following types of attacks are to be considered as indiscriminate: a. an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and b. an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 6. Attacks against the civilian population or civilians by way of reprisals are prohibited. 7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. 8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57. Temporal element : refers to the time during which a person participates in hostilities. 70 • According to a restrictive interpretation (Cassese), direct participation is the operational activity, that is, the attack (or the hostile act) including the deployment to combat and the moment in which the unit breaks contact (when fighters are trying to bound away from the enemy engagement). Consequently, pre-emptive attacks, as well as attacks conducted after fighters have broken the contact are considered unlawful, since in that case the reaction is directed against civilians. • According to the Supreme Court of Israel, a civilian who has joined a terrorist organization which has become his home, and in the framework of his/her role in that organization commits a chain of hostilities, with short periods of rest between them, can be legimately targeted at any time and in every place, until he will have undeniably laid down the arms and exited the circle of violence. Unprivileged combatants Spies, saboteurs and mercenaries are unprivileged combatants. If captured, they do not have the status of POW and are consequently punishable under the law of the Power which captured them. During the first phase of the war in Afghanistan, US special forces operated in support of the Northern Alliance wearing civilians clothes. If captured by the Taliban (then the de facto government), they could not claim POW privileges. Mercenaries are linked to a party in a conflict by mere relations of private nature and essentially motivated by the desire for private gain. If captured, they are not entitled to POW status. A definition of a mercenary is derived from Article 47 of Protocol (I), which provides for six criteria through which identifying the category. a) an enrollment in order to fight in an armed conflict; b) the actual participation in hostilities; c) the purpose of obtain private gain. d) a national of the party to a conflict nor a permanent resident in the territory controlled by one of the parties; e) a member of the armed forces of a party to the conflict; f) sent by a State which is not a party to the conflict on official duty as a military counsellor. IHL prevents private wars (privateering). It means that those who cannot be linked to one of the parties, do not have the privilege of combatancy. Employees in so called Private Military Companies are civilians. They are not entitled to participate in combat nor to the status of POW, if captured. They may provide security services and use weapons, but only in self–defence. It is difficult to qualify contractors as mercenaries, since normally they do not fulfill requirements a), b), and d) of the definition provided in Article 47 of Protocol (I). The CPA Order n. 17142 issued by the Coalition Provisional Authority in Iraq granted them the immunity from local jurisdiction: “Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a contract or any sub-contract thereto.” Their immunity have ceased in 2012 following the withdrawal of the US contingent. CONDUCT OF HOSTILITIES Principles. 71 • military necessity, • distinction • proportionality • humanity 1 - Military necessity. Measures which are indispensable for securing the ends of war. Military necessity is incorporated in IHL provisions when expressly referred to, IHL speaks of “unavoidable military necessity” or of “imperative reasons” of military necessity. • prohibition to destroy enemy properties does not operate in case of such destruction is “imperatively demanded by the necessities of war”. • The obligations to respect cultural property and to refrain from any act of hostility directed against such property may be waived in cases where “military necessity imperatively requires” such a waiver (see 1954 Hague Convention on cultural property, Article 4). • Article 54 of Protocol (I) permits the destruction of supplies essential to the survival of the civilian population only where required by “imperative military necessity”. 2 - Distinction and 3 - Proportionality AP I - Article 48 -- Basic rule: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” An attack – that is a course of action which implies the actual use of the armed violence, in offence or in defence – may be directed only against military targets. Civilians who take direct part in hostilities are lawful targets. Article 51 of Protocol (I): an attack conducted in violation of the principle of distinction is an indiscriminate attack. Attacks are also indiscriminate whereas they cause collateral damage which is excessive in respect of the anticipated military advantage. An attack of this nature, that is, disproportionate, is ipso facto an indiscriminate attack. Ambiguity of art. 51 provisions on proportionality • The magnitude of collateral damage and the judgement of proportionality are highly subjective. • Furthermore, it is not clear if the parameter of an excessive toll of casualties refers to a single action or to the offensive operation in its entirety. “The idea has also been put forward that even if they are very high, civilian losses and damages may be justified if the military advantage at stake is of great importance. This idea is contrary to the fundamental rules of the Protocol […]. The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.” (ICRC Commentary) The “military advantage” to which to compare the damage caused to civilian persons and objects is qualified by the relevant norms as “concrete and direct military advantage.” According to the IRCR, A military advantage can only consist in ground gained and in annihilating or weakening the enemy armed forces. 72 Starving a population. It is prohibited to starve the civilian population (art. 54 AP I). Methods which involve the destruction of foodstuffs, drinking water reserves, etc., are not prohibited if directed to cause difficulties to the members of the opposing armed forces. The means of subsistence of the civilian population cannot be the object of attack, unless in situations of imperative military necessity, to defend the territory against invasion (so called scorched earth policy). The rule seen above is not violated if a severe shortage of food and water is the unintended consequence of military operations. It is forbidden to cause modifications in the natural environment for military purposes. According to the Convention on the Prohibition of Environmental Modifications for military purposes (so called ENMOD Convention), it is forbidden to cause severe, extended or durable modifications in the environment for military reasons. Protocol (I) prohibits means and methods of warfare direct or which are expected to cause serious, extensive and durable damage, and requires the protection of the natural environment from such effects. (it does not cover the high seas). The Statute of the ICC punishes as a war crime the fact of causing environmental damage of widespread, long-term and severe nature, clearly excessive in relation to the concrete and direct overall military advantage anticipated. Admittedly, these rules do not correspond properly to the need to protect the natural environment from the possible catastrophic consequences of a military action. IHL prohibits certain types of weapons: • because they have indiscriminate effects, • or because they cause unnecessary suffering to combatants, i. e. a physical or mental harm to the individual greater than the harm that inevitably arises from actions aimed at achieving military purposes. The practice of States shows that an explicit prohibition is required to qualify a weapon as unlawful. According to Protocol (I), in the study, development, acquisition or adoption of a new weapon, means or method of warfare, each State is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by the rules of international law applicable to that State (see Article 36). The use of certain weapons is banned in every circumstance, since they are prohibited under customary law: • poisoned weapons, • explosive projectiles weighing less than 400 grams, • bullets which expand or fragment when they hit the human body, • and asphyxiating gases, are forbidden. Conventional instruments have prohibited or restricted use of 75 • weapons that can produce fragments not detectable by X-ray, • anti-personnel mines that are activated as a result of the waves emitted by detection devices, • booby traps that directly threaten the civilian population, • incendiary weapons, • In 1997 the use of anti-personnel landmines has been further restricted. • In 2008, a convention prohibiting the use of cluster bombs entered into force. Weapons of mass destruction • Biological, • bacteriological and • chemical weapons have been declared illegal by the adoption of specific agreements. o The Chemical Weapons Convention (CWC) prohibits the development, production, stockpiling and use of chemical weapons and requires the destruction of both chemical weapons production facilities and the weapons themselves. It reinforces the 1925 Geneva Protocol. 76 o The prohibition to use asphyxiating or poisonous gases is considered as customary law • The threat or use of nuclear weapons appear generally contrary to IHL. However, their menace or use has been considered lawful by the International Court of Justice, in extreme circumstances of selfdefence, in which the very survival of the State is at stake. • Treaty on the prohibition of nuclear weapons (entry into force: 22.01.2021) 77