Humanitarian Law in Action PDF

CHAP TER 3 Human Rights Law The Law of Human Dignity All h...

CHAP TER 3 Human Rights Law The Law of Human Dignity All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Universal Declaration of Human Rights1 The African States members of the Organization of African Unity... [proclaim] that it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality... African Charter on Human and Peoples’ Rights2 Human rights law is the most comprehensive of the four fields of inter- national law concerned with conflict resolution. Humanitarian law applies in time of war and its aftermath; international criminal law focuses on Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. individual accountability for war crimes and other offenses against the world community; and refugee law seeks protection for individuals displaced by conflict and repression. In contrast, human rights law operates in all times and places. In addition to recognizing the liberty, equality, and material needs of human beings, international human rights law imposes responsibilities on states, individuals, and communities alike. Despite their distinct mandates and modes of operation, these four sister fields of trans- national law share much common ground in defining violations of human dignity and in responding to such violations. Studying the resonances between human rights and humanitarian law is particularly relevant in the context of war, when acts of inhumanity are commonplace. Moreover, human rights violations, whether political or socioeconomic, are often at the root of armed conflict in the first place. Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  The essence of human rights law recognizes the integrity, vulnerability, and vast potential of human beings, as individuals and members of commu- nities. Echoing the French Revolution’s rallying cry of liberté, egalité, frater- nité, human rights law encompasses political liberties, basic equality, and social well-being. Despite differences in orientation—the traditional empha- sis on civil-political rights in the Western and Northern worlds, and the pre- dominant concern with socioeconomic rights in countries of the East and South—the indivisible quality of human rights is widely acknowledged.3 The Kenyan national anthem’s appeal to undugu, amani na uhuru (unity, peace, and liberty)4 suggests an appreciation for the interdependence between indi- vidual rights and concern for the collective good even at the level of political rhetoric. Likewise, the quintessential American vision of “life, liberty, and the pursuit of happiness” encompasses the fullness of human life, from basic survival and self-expression to the quality of our existence. It is fashionable to talk about generations of human rights, particularly first-generation civil and political rights, and second-generation economic and social rights. In fact, these two categories of rights are interdependent rather than consecutive, and both play a role in preventing armed conflict. One cannot meaningfully exercise the rights to free expression and political participation without adequate health care and education, and one cannot enjoy social security without a government that serves and is accountable to the people.5 Moreover, the protection of political liberty and the promo- tion of social welfare are equally fundamental attributes of deep-rooted and enduring peace within a society. The United Nations General Assembly declared in 1948 that “recogni- tion of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”6 This symbiotic relationship between human rights and Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. peace has been reiterated by the world community in the text of numerous human rights instruments formalized in the sixty-five years since the birth of the UN.7 Human rights activists also speak of a third generation of human rights, most often a reference to “group rights” including self-determination, cultural survival, the collective development of economic and cultural resources, and the protection of the environment. Increasingly, interna- tional law recognizes that human beings are entitled to protection both as individuals and members of communities.8 Guarantees of individual rights cannot provide the sustenance that group identity and membership in indigenous and other communities provide, yet communities at times discourage individual dissent from prevailing norms. Thus, all dimensions of human rights are essential, the individual and the collective, the political and the social, the guarantee of justice, and the making of peace. [ 76 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  A. MEASURING SOCIOECONOMIC SECURITY AND HUMAN LIBERTY It is a difficult task to evaluate countries in terms of the levels of welfare, freedom, and security that their citizens and residents enjoy. Nevertheless, in reading and analyzing legal instruments that obligate states and other actors to respect human dignity in very concrete ways, it is essential to acknowledge the vast divide between human rights standards and realities on the ground in specific societies. In assessing the social and political conditions of life in individual countries, the interrelationships between poverty, repression, and the incidence of armed conflict are exposed. Confronting the realities of poverty, political violence, and war is the first step towards a fuller implementation of the principles of human rights and humanitarian law. This section starts by considering ways to define human security in socioeconomic terms and then explores indicators of human liberty in the political realm. First to consider is the concept of human development. 1. Socioeconomic Security Human development and human security are terms of art increasingly utilized by the international community to emphasize and enhance the material or socioeconomic dimension of human rights. The United Nations has labored to develop and refine terms and indicators that meaningfully reflect the quality of life for individuals in particular countries. Illustrative of this trend, the contemporary global conversation about human security is occurring against the backdrop of the Millennium Development Goals, in which the General Assembly pledged to cut extreme poverty in half by the year Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. 2015.9 Despite an increasing emphasis on the material conditions of life at the household level in the assessment of human rights standards around the world, the modern rhetorical focus on poverty and human security has not displaced deeply entrenched macroeconomic benchmarks for social progress at the global level that have been utilized since the founding of the UN. For nearly half a century, UN officials, humanitarian workers in the field, academics, and lay people alike have loosely applied the labels “developing” and “least developed” to countries with relatively less eco- nomic, political, and military power at the global level. Many such develop- ing countries in the global South are former colonies of major industrial nations, located in Africa, South America, and parts of Asia and the Middle East. Others are newly independent states formed by the breakup of the former Soviet Union and other states in Eastern Europe. H U M A N R I G H TS L AW [ 77 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  As of 2010, the UN Development Programme (UNDP) classifies 86 of the 194 member states of the UN as “developing countries.”10 Within that group of 86, the UN identifies 49 as “the least developed countries.”11 Thus, the UN considers nearly one-half the countries of the world to be developing, and classifies one-quarter as the least developed. The downside of using the terms developing and least developed to refer generally to poorer or less powerful countries is that the terms, by themselves, do not shed much light on the actual living conditions for most people living in such nations. Indeed, some developing countries devote more resources to social services in relative terms than do major industrial countries, particu- larly in the health sector.12 Recognizing the disconnect between gross indicators of economic growth at the national level and the particular experiences of material deprivation within families and communities in various countries around the world, the UN and its partners in the nongovernmental sector have endeavored to formulate, in recent years, a more precise and multidimen- sional definition of underdevelopment, particularly with respect to countries at the extreme margins of the global economy. For the UNDP and other agencies, the term least developing country now corresponds to a cluster of social and economic attributes, chief among these a very modest gross domestic product (GDP) per capita, a low level of adult lit- eracy, and a high level of insecurity in the agricultural and food production sectors.13 Uganda, Sierra Leone, and Burundi, the three countries profiled in Chapters 7, 8, and 9, are all characterized as least developed countries.14 In an attempt to better measure the quality of life for people residing in developing and least developed countries, the UNDP formulated a new cal- culus, optimistically dubbed the human development index (HDI). Rather than ranking countries in terms of GDP alone, the HDI focuses instead on Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. “three basic dimensions of human development—a long and healthy life, knowledge, and a decent standard of living.”15 As conceptualized by UNDP, the top HDI score would be 1.0. According to statistics compiled by UNDP in 2010, the world HDI average was.624, and for the least developed coun- tries, the average HDI was.386.16 Of the 169 countries with sufficient data to be ranked in 2010, HDI scores ranged from.938 for Norway, in first place, to.140 for Zimbabwe, in last place.17 Uganda, Sierra Leone, and Burundi, from our three country studies, are ranked 143th, 158th and 166th, with HDIs of.422,.317 and.282, respectively.18 The United Nations compiles separate statistics19 on the three aspects of material well-being used in computing the human development index—life expectancy at birth, mean years of schooling, and gross national income (GNI) per capita.20 On average globally, life expectancy at birth is 69.3 years, years of schooling are 7.4, and GNI per capita is $10,631, [ 78 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  corresponding to the global average HDI of.624.21 For the least developed countries, life expectancy is 57.7 years, years of schooling are 3.7, and $1,393 is the average GNI per capita, with an HDI of.386.22 Data from our three case studies help complete the picture: for Uganda, life expectancy is 54.1 years, with years of schooling at 4.7, and a GNI per capita of $1224 (HDI.422); for Sierra Leone, life expectancy is 48.2 years, years of schooling 2.9, and GNI per capita $809 (HDI.317); and for Burundi, life expectancy is 51.4 years, years of schooling are 2.7, and the GNI per capita is $402 (HDI.282).23 An essential dimension of human development is the status of women in both legal and material terms. Countries with low HDI tend to have rela- tively low levels of literacy among women and lower female life expectancy, and this trend plays itself out in our three country studies. According to the UNDP Human Development Report for 2010, the maternal mortality rate for women in the United States between 2003 and 2008 was 11 out of one-hundred thousand live births, whereas it was 550 for women in Uganda, 2,100 for women in Sierra Leone, and 1,100 for women in Burundi. Data for women who had achieved at least secondary education by 2010 was 9.1 percent for Uganda, 9.5 percent for Sierra Leone, and 5.2 percent for Burundi. Overall, 2010 statistics for women reaching the secondary level of education or higher was 17.8 percent for least developed countries overall. In the United States, in 2010, 95.3 percent of women had achieved secondary education or higher. 24 2. Human Insecurity in the Context of Armed Conflict There is a powerful correlation between entrenched poverty and war, Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. reflected in the higher rates of armed conflict in countries with relatively low levels of human security as compared to the more developed countries of the world. Based on statistics for the decade between 1997 and 2006, the likelihood of armed conflict in the countries with the highest human development indicators was 1.6 percent, whereas it was 30.1 percent in the middle range of countries, and 38.7 percent in the least developed countries.25 Uganda, Burundi, and Sierra Leone are examples of countries with very low human development indicators that are emerging from prolonged periods of armed conflict: over ten years, in the case of Burundi and Sierra Leone, and upwards of twenty years for Uganda. A causal relationship between armed conflict and underdevelopment is easy to posit but more difficult to prove. Social scientists, humanitarian workers, and journalists alike report widely that competition for scarce economic resources fuels armed conflict, and that conflict exacerbates H U M A N R I G H TS L AW [ 79 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  underdevelopment. Certainly war torn societies experience frequent food, public health, and sanitation emergencies; increased levels of unemploy- ment; and decreased access to education. In exploring the causes of war, researchers on conflict in Africa have identified food insecurity as the most significant contributing cause of civil strife.26 War tends to break out in African countries with the highest levels of hunger and malnutrition. Enhancing access to food throughout a population promotes conflict resolution while serving as a powerful engine for conflict prevention in the first place. At the start of the civil war in 1991, Sierra Leone ranked at the very bottom of the UN’s ranking of developing countries in terms of its human development index. In 1991, Burundi and Uganda were both ahead of Sierra Leone in terms of human development rankings, but still in the lowest 20 percent of all developing countries.27 In 2007, five years after the official end of hostilities, Sierra Leone still found itself in last place in terms of its HDI. For its part, by 2007, Uganda had moved into the middle tier of human development as defined by the United Nations, shortly after the Juba peace process had begun to bear fruit. That same year, Burundi was also emerging from armed conflict—still situated in the lowest tier of human development, with an HDI even closer to that of Sierra Leone than had been the case in 1991.28 Recent modest gains for Ugandans, and the prolonged socioeconomic insecurity of most Sierra Leoneans and Burundians highlight the fragility of long-term peace processes in countries emerging from armed conflict. 3. Political Liberty Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. Linked to the experience of human security in socioeconomic terms is the enjoyment of civil and political rights—the freedom from inhuman or arbitrary treatment, freedom of expression, and freedom to participate freely in the political process. Compared to its quantitative data analysis in the area of human material security, the UN does not have a precise methodology for measuring civil liberties. Nevertheless, a number of nongovernmental agencies specialize in measuring relative experiences of political pluralism in individual states. One prominent research institute, the Freedom House, issues yearly surveys of countries throughout the world, utilizing a particular index of civil and political freedoms. Beginning in the 1950s, Freedom House began publishing an annual Balance Sheet of Freedom, which evolved into its current yearly report entitled Freedom in the World. The organization maintains that its perspective is not culture-bound, but rather based upon broad standards [ 80 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  set forth in the Universal Declaration of Human Rights (UDHR or Universal Declaration). Nevertheless, Freedom House is forthright about its “assumption that freedom for all peoples is best achieved in liberal demo- cratic societies.” Its data collection considers the conduct of public officials as well as nonstate actors in the enjoyment or denial of civil and political rights.29 Freedom House’s index assigns each of the 193 countries surveyed a number between 1 and 7 in both of two categories corresponding to political rights and civil liberties. In each case, the continuum between 1 and 7 reflects an assessment ranging from the highest to the lowest levels of freedom. The assessment of political rights considers the development of the electoral process, the degree of political pluralism, and the extent of individual participation in the political process. The evaluation of civil liberties takes into account freedom of expression, “associational and organizational rights,” the development of the rule of law, and “personal autonomy and individual rights.”30 A state with an average composite score between 1.0 and 2.5 is defined as “free,” one with a composite between 3.0 and 5.0 as “partly free,” and one between 5.5 and 7.0 as “not free.” In 2009, based on Freedom House’s methodology and typology, 89 countries, nearly one-half, were deemed “free.” Another 62 nearly one- third were considered “partly free.” The remaining 42 countries, something over one-quarter, were labeled “not free.” The US received a composite score of 1, the gold standard on Freedom House’s freedom continuum, illustrating the institute’s positive bias towards liberal democratic systems. For the three African case studies, all three were determined to be “partly free:” Uganda and Burundi with a score of 4.5 and Sierra Leone with a score of 3.31 Freedom House’s assigned index values reflect an analysis of prevailing Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. political and social conditions, reported in the yearly report for each coun- try. Freedom in the World 2008 notes that in Uganda, opposition political parties were prohibited until 2005. In 2008, Uganda experienced ongoing conflict between its armed forces and the Lord’s Resistance Army (LRA), as well as social tensions associated with hosting increased numbers of refugees from the Democratic Republic of the Congo (DRC).32 In Sierra Leone, Freedom House noted recent progress in efforts to combat a high level of official corruption, as well as the holding of local elections, in 2008, following free and fair presidential and parliamentary elections, in 2007. Freedom in the World also reported on de facto restrictions on press freedoms in Sierra Leone despite constitutional guarantees.33 In the case of Burundi, Freedom House reported progress in peace negotiations in 2008, but expressed concern about a recent crackdown on the political opposi- tion and the government’s failure to establish either a special tribunal or a H U M A N R I G H TS L AW [ 81 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  national truth commission to confront war crimes committed during the prolonged civil war.34 These concerns played out in the elections of 2010, in which allegations of fraud by the ruling party in communal elections were followed by repression of opposition parties, whose candidates subse- quently boycotted the presidential election. On this foundation of the realities of socioeconomic suffering and political repression in countries emerging from armed conflict, we now turn to the various sources of human rights law enacted to enhance human security and political expression. Although most human rights instruments are treaties, the best-known source of human rights law started as a nonbinding resolution of the UN General Assembly, adopted in 1948. This early UN resolution is notable for its integration of civil and political rights with socioeconomic and cultural rights. B. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE INTERDEPENDENCE OF FUNDAMENTAL RIGHTS AND FREEDOMS In consulting the sources of international human rights law in the form of treaties and nonbinding resolutions, the 1948 Universal Declaration of Human Rights is a fitting place to start. It was adopted without dissenting vote by the UN General Assembly, and what started as soft law has attained the status of customary law.35 Its provisions span the full spectrum of individual rights from the prohibition of state-sponsored violence to the provision of health care and education. The Universal Declaration also affirms that people should claim their rights with an awareness of the impact that their actions have on the life and dignity of others. Finally, the UDHR Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. set a precedent for future treaties by identifying the symbiotic relationship between human rights and peace. Its Preamble states that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world...”36 1. The Norm of Equality Articles 1 and 2 of the UDHR set forth the norm of equality from multiple perspectives. Article 2 is the most cited in its articulation of the principle of “nondistinction” and its enumeration of ten nonexclusive grounds on which discrimination should not occur: “race, colour, sex, language, political or other opinion, national or social origin, property, birth or [ 82 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  other status.”37 Sexual orientation is notably absent. Article 1 is also impor- tant, in emphasizing that people “are born free in dignity and rights” and in exhorting people to “act towards one another in a spirit of brotherhood.” Thus, although the UDHR is fundamentally a bill of rights, it acknowledges the responsibilities that come with community life. 2. Basic Liberties Articles 3–21 of the UDHR proclaim what are generally regarded as civil and political liberties: the right to life (Article 3); freedom from slavery (Article 4); the prohibition against torture (Article 5); the right to basic legal personality or personhood in the eyes of the law (Article 6); equal protection of the law (Article 7); the right to an effective legal remedy (Article 8); freedom from arbitrary arrest and detention (Article 9); the right to a public and impartial hearing on criminal charges (Article 10); the presumption of innocence (Article 11); the right to privacy (Article 12); freedom of movement (Article 13); the right to seek and enjoy asylum from persecution (Article 14); the right to a nationality (Article 15); the right to marry and create a family (Article 16); the right to own property individually and collectively (Article 17); freedom of thought, conscience, and religion (Article 18); freedom of opinion and expression (Article 19); freedom of assembly (Article 20); and the right to participate in govern- ment (Article 21). Political and civil rights are sometimes referred to as negative rights, or “hands-off ” rights, insofar as they emphasize freedom from the abuse of power, often by the state, but also by other individuals. The idea is that if individuals are given free rein, they may form their own beliefs, speak their Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. minds, worship freely, found a family, choose their place of residence, and defend themselves in court if accused of a crime. Another component of the concept of negative rights is the claim that fewer state resources are implicated in the guarantee of civil and political rights than in the enjoy- ment of economic and social rights, based on the presumption that it costs governments less to leave their denizens alone than it does to grant them various forms of material assistance. Despite its rhetorical appeal, the negative or hands-off metaphor for civil and political rights is imperfect at best. Even if we focus on the freedom from torture and arbitrary arrest, state resources and proactive measures are needed, in addition to a forbearance from abusive conduct, if individuals are to enjoy such protections. Adequate police stations, courts, and prisons must be built and maintained; police officers and prison guards need to be hired in sufficient numbers and trained in lawful and humane forms of H U M A N R I G H TS L AW [ 83 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  arrest, interrogation, and detention; and prosecutors, defense counsel, judges, and magistrates require effective schooling in constitutional, legisla- tive, and common law rules regarding criminal justice. Furthermore, with regard to freedom of thought, expression and participation, individuals need access to primary, secondary, and ideally postsecondary education in order to more fully develop the political, philosophical and religious beliefs and opinions that they may then seek to express through participation in political and cultural life. Civil and political rights embody a free society and a government accountable to the rule of law. But governmental restraint alone will not guarantee these liberties for all people. To strengthen civil and political rights, the state must put its money where its mouth is, investing the finan- cial and human resources necessary to cultivate the rule of law at all levels of society. 3. Fundamental Material Needs Articles 22–27 of the Universal Declaration emphasize social and economic rights: the right to social security (Article 22); freedom of choice in employ- ment, the right to form trade unions, and guarantees of fair wages and safe working conditions (Article 23); the right to reasonable working hours and periodic holidays (Article 24); the right to an adequate standard of living, including food, shelter, medical care, and assistance for the elderly and disabled (Article 25); the right to free primary education, and fair access to secondary education (Article 26); and finally rights to share in the artistic and scientific advancements of the community, and to enjoy the protection of one’s own intellectual property (Article 27). Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. Economic and social rights are often referred to as “positive” rights, reflecting the reality that enjoyment of such rights will require significant state resources, policies, and programs. As with the “negative” vision of civil-political rights, the “positive” conception of economic-social rights is oversimplified. Certainly the provision of free public education, adequate nourishment, universal health care, and security in retirement is costly to the state and, indeed, in the case of many developing countries, difficult if not impossible to pay for without international assistance. The same is true of humanitarian relief for individuals who flee conflict, repression, and nat- ural disaster. Nevertheless, there is a hands-off element to socioeconomic rights as well, in poor and rich countries alike. In many societies, individu- als and groups are arbitrarily denied access to employment or education, or forcibly displaced from their land and means of sustenance. In such situa- tions, the problem is not simply a lack of adequate state expenditures, but [ 84 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  also the abuse of power by the state and the failure of the state to allocate its resources equitably. Economic and social rights embody a decent society, with a government accountable for the welfare of its citizens. But government largesse alone will not secure the safety net. To guarantee economic and social rights the state must police itself, providing human services to political compatriots and adversaries alike, weaving the principle of equity into the social fabric. It thus appears that both families of individual rights recognized in the Universal Declaration—the civil-political and the economic-social—have negative and positive dimensions. All human rights along the spectrum from freedom of speech to affordable health care require both self-restraint and affirmative measures on the part of the state and members of society if they are to be effectively enjoyed. 4. Collective Life — The UDHR, the Banjul Charter, and the UN Declaration on the Rights of Indigenous Peoples Articles 28–30 of the UDHR focus on collective rights and responsibilities to the collective: the individual’s right to an international system or “order” dedicated to the enjoyment of human rights (Article 28); and the individu- al’s duty to exercise her rights in such a way that others’ rights are protected as well (Articles 29 and 30). Article 29 specifically mentions the UN, and prohibits the exercise of particular rights in a manner “contrary to [its] pur- poses and principles.” In reference to Article 1 of the Charter of the United Nations (Charter), the text of UDHR Article 29 cautions that human rights should not be exercised so as to endanger international peace and security, or discourage friendly relations among nations.38 Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. Despite references to “others” and the need to consider the interests of the community of nations, there are no explicit references to the rights of groups as such in the Universal Declaration, nor in the majority of the human rights instruments that have been adopted subsequently. A notable exception is one of the four regional human rights conventions, the aptly named African Charter on Human and Peoples’ Rights (Banjul Charter). This treaty recognizes the rights of peoples to equality, self-determination, development, and peace.39 Although the international community has yet to draft a treaty of universal application specifically dedicated to collective human rights, there are emerging norms on this issue, especially regarding the communal rights of first nations and all aboriginal communities. Nearly sixty years after the UDHR, the General Assembly adopted another comprehensive resolution with global reach: the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP).40 Although H U M A N R I G H TS L AW [ 85 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  Article 28 of the UDHR recognizes the individual’s right to an international order in which human rights may flourish, the UNDRIP concerns the rights of indigenous communities as collectives, proclaiming that “peoples,” and not only people, have rights. UNDRIP encompasses the protection of indigenous languages, religions, and cultures; and recognizes and promotes collective land ownership and collective management of natural resources.41 Because it is a resolution and not a treaty, UNDRIP currently has the status of soft law. It remains to be seen whether UNDRIP will lead to a convention on the rights of indigenous peoples, or whether the provisions of UNDRIP and the Banjul Charter will evolve into norms of customary international law regarding the rights of peoples more generally. 5. The Impact of the Universal Declaration of Human Rights The customary status attained by the Universal Declaration in the sixty years since its adoption is widely recognized, as discussed more fully in Chapter 1. The UDHR is significant not just for its enumerated provisions and principles, but for the treaties and national constitutions that it has inspired. Moreover, the Universal Declaration remains “cutting edge” in its insistence that no “State, group or person” may “engage in any activity... aimed at the destruction of the rights and freedoms set forth”42 in the Universal Declaration. Hence, although the UDHR is a universal bill of rights, it goes further than most national constitutions in prohibiting viola- tions of human rights by “private” individuals and communities as well as abuses by state actors.43 Nevertheless, as a written instrument of international law, the UDHR is a resolution, not a treaty, and therefore lacks the formal enforcement bodies Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. typically created by human rights treaties. In reviewing the most significant treaties that have entered into force since the birth of the UN, it is essential to consider both the substance of the human rights obligations imposed on states and other actors, as well as the specific treaty-based mechanisms for challenging those actors when they fail in their obligations to respect human dignity. C. HUMAN RIGHTS TREATIES There are numerous international treaties dedicated to the protection and promotion of human liberty, equality, well-being, and security. One organizing principle is whether the treaty has a global or a regional reach, contrasting the International Covenant on Economic, Social and Cultural [ 86 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  Rights (ICESCR or Economic and Social Covenant), for example, with a regional human rights treaty such as the Banjul Charter. Some treaties with global reach are more comprehensive, such as the two international cove- nants dealing collectively with the two predominant “families” of individual rights. Other treaties are focused on defining and preventing a specific human rights violation, such as torture or genocide. Below, we will discuss the essen- tial provisions of ten major human rights treaties, starting with the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), and ending with the Arab Charter on Human Rights. 1. Treaties to Combat Institutionalized Human Rights Abuses a. The Genocide Convention It is not an accident that genocide was the subject of the first human rights treaty adopted after World War II and the birth of the UN. Shamed into action by the extermination of over six million Jews and other minorities including gays and Roma people, the international community was com- pelled to condemn the very idea of a “final solution,” and all campaigns of ethnic annihilation. Thus, in the aftermath of the Holocaust, and one year before the 1949 Geneva Conventions laid the foundation for modern humanitarian law, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide.44 As of December 2008, its sixtieth anniversary, 140 states had ratified the Genocide Convention, out of 194 members of the UN.45 The United States ratified the treaty in 1988. Although Burundi and Uganda acceded to the Genocide Convention in 1997 and 1995, respectively,46 Sierra Leone is not a party, although it has signed and ratified the Rome Statute of the International Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. Criminal Court (Rome Statute or ICC Statute).47 Genocide is defined in the Genocide Convention as certain “acts com- mitted with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”48 While the definition of genocide does not require a certain number of persons killed, it does require proof of intent to destroy the group, partially if not completely. In addition to the challenge of proof, the treaty limits genocide to the attempted destruction of certain kinds of groups, essentially defined in terms of ethnicity or religion. Political and other social categories are not included in the treaty’s definition. Nevertheless, some human rights advocates and scholars have argued that the attempted extermination of political opposition groups also constitutes genocide, particularly in the case of Cambodia’s “killing fields,” in which over 1.5 million people were murdered as counter-revolutionaries by the Khmer Rouge in the 1970s.49 H U M A N R I G H TS L AW [ 87 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  The treaty-based definition is also significant because it does not limit genocide to the killing of group members. Also included are acts that cause “serious bodily or mental harm” and the infliction of “conditions of life calculated to bring about [the group’s] physical destruction.”50 The Genocide Convention requires state parties to punish genocide as well as certain acts related to genocide, including attempted genocide and conspiracy and incitement to commit genocide.51 Accountability for acts of genocide is not limited to “private” individuals, but also extends to “constitutionally responsible” public officials.52 Article VIII allows parties to request action by the UN to prevent and suppress acts of genocide.53 Although to date no state has invoked Article VIII, the treaty has played an important role in bringing the norm against genocide into the domain of customary law as well as into the popular imagination. Moreover, the Genocide Convention is referenced in other instruments, including the International Covenant on Civil and Political Rights (ICCPR or Civil and Political Covenant) and the ICC Statute.54 b. Genocide and Other Crimes Against Humanity Genocide shares certain attributes with other human rights abuses that typically target entire communities. Apart from the Genocide Convention, the international community has concluded other major treaties defining and combating specific institutionalized human rights crimes. Two of these crimes, slavery and apartheid, are addressed below. In 1956, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, was concluded, building Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. on the foundation of an earlier treaty adopted in 1926. In 1976, the International Convention on the Suppression and Punishment of the Crime of Apartheid was concluded.55 Genocide, like institutionalized slavery and systemic racial discrimina- tion, is an offense against human dignity that operates on a wholesale or metalevel. Essentially, genocidists attack individuals in order to destroy the community in which they are members. In the same vein, historically, members of certain slave-owning elites have claimed ownership over other individuals by asserting that the social or ethnic group to which they belong is subservient by nature. Such was the case for the institution of black chattel slavery established and practiced in the American colonies and the United States between the seventeenth and nineteenth centuries. Similarly, apartheid marginalizes members of particular ethnicities in multiple sectors of life, entrenching their collective “separateness” by discriminating against [ 88 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  group members in eligibility for housing and employment, as well as access to public amenities, education, health care, the court system, and the political process itself. Meta abuses, such as genocide, are both human rights violations and crimes against humanity that implicate international criminal law, which is the focus of Chapter 4. Just as common crimes are deemed offenses against the national community, international crimes are deemed offenses against global society because they degrade and endanger our common humanity. Crimes against humanity, including genocide, slavery, and apartheid, differ from other international crimes insofar as t they attack communities per se as well as individuals. These offenses may also constitute war crimes under international humanitarian law if they occur in time of armed conflict. Genocide, slavery, and apartheid are wholesale abuses because they attack communities or whole social categories, but also because they take myriad forms. Thus, genocide constitutes a compound human rights viola- tion, wrapping together multiple instances and forms of abuse, ranging from dislocation, detention, and deportation, to rape, torture, and extermi- nation. Although institutionalized slavery incorporates many of the same abusive methods as genocide, its primary purpose is the economic exploi- tation of the group, which requires its preservation rather than its physical destruction. For its part, apartheid strings together multiple acts of discrim- ination. Although abuses will not always rise to the level of physical attack or servitude, the marginalized group remains extremely vulnerable to both violence and economic exploitation. All three of the major crimes against humanity—the wholesale patterns of abuse, as well as the specific human rights violations through which they are implemented—violate jus cogens rules. This means that genocide, slav- ery, and apartheid, on the one hand, and murder, torture, servitude, and Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. discrimination, on the other, each violate peremptory or nonderogable norms of international law. To this extent, these acts would violate interna- tional customary law, even if there were not treaties in force prohibiting them.56 The treaties are important in defining the specific crimes against humanity with greater precision, and establishing institutional mechanisms to prevent and punish such abuses. The Genocide Convention did not create its own commission or court to prevent or punish acts of genocide, relying instead on states to prosecute genocide domestically or request intervention by the UN. Indeed, until the establishment of the ICC in 2002, there was no treaty-based international tribunal of global reach created for the specific purpose of prosecuting pro- spective crimes against humanity. But as we shall see in Chapter 4, there have been numerous criminal tribunals of more limited geographic and temporal jurisdiction, including the Nuremburg Tribunal; ad hoc courts H U M A N R I G H TS L AW [ 89 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:10.  for the former Yugoslavia and Rwanda; and hybrid courts for Sierra Leone, Cambodia, and East Timor. Nevertheless, criminal prosecutions are but one judicial mechanism for protecting human dignity. Human rights violations may also result in civil actions, building upon the concepts of tort law, and seeking damages for the injured person, rather than criminal fines or imprisonment for the author of a crime. The human rights treaties adopted after 1948 are notable for establishing new bodies to evaluate and improve human rights conditions in particular states. In some cases, these entities adjudicate specific claims of human rights violations. However, unlike criminal tribunals that convict and incarcerate individuals, the goal of human rights commissions is for states to make repa- rations for human rights abuses and change legal and economic structures so that such abuses do not occur in the future. Increasingly, international crimi- nal law, the subject of Chapter 4, is also exploring the use of restorative justice mechanisms at the community level in combination with prosecutions that impose criminal liability on individuals. 2. The 1966 International Covenants It took nearly twenty years from the adoption of the Universal Declaration in 1948, before comprehensive human rights treaties were drafted and opened for signature to all members of the UN. Work began immediately on regional human rights treaties, and indeed Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights or Euro