Transcript Human Rights Law

HUMAN RIGHTS LAW
Dr Maurice Mullard
20 February 2009
UNIVERSAL DECLARATION OF HUMAN
RIGHTS
Adopted by United Nations 10 December 1948 a
milestone in the history of human rights
acquistion of human dignity and worth’
 Two covenants
 International Covenant on Civil and Political
Rights ICCPR
 International Convenant on Economic Social and
Social Rights Rights ICESCR)
 Together formulate International Bill of Rights
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ARTICLES OF THE DECLARATION
Article 1 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
 Article 2 Everyone is entitled to rights without
discrimination of race colour sex language
religion
 Rights are therefore inalienable
 Article 3 right to life liberty and the security of
the person
 Articles 4 and 5 prohibit slavery
 Article 13 – 15 freedom of movement and
residence right to seek asylum
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Articles 7 – 11 rights against detention rights to
a fair trial
 Article 12 0- 16 rights to privacy
 Article 18 -20 freedom of thought conscience,
freedom of assembly and association
 Article 21 secure democracy right of participation
 Articles 22 – 27 standards of living health, right
to work rest leisure education
 Article 29 reciprocity duties to community
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LIMITS OF UDHR
Lack of legal status not enforceable states cannot
interfere in the context of other states signatory
are voluntary
 United nations Charter all states to publicize
UDHR
 Declaration now available in 300 languages –
universal language of rights
 Human Rights Commission at the UN role of the
rapporteur
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HISTORIES OF GENOICIDE AND CRIMES
AGAINST HUMANITY
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How do you classify these episodes in history
Holocaust 6 million‘[t]he implementation of the ‘Final
Solution’, in the sense of total extermination, is to a
certain extent connected with the cessation of
emigration of Jews from territories under German
influence’Eichmann acquitted of genocide for pre-1941
acts
Soviet Union Stalin Gulags approx 30 million
MAO Cultural Revolution 8 million
Pol Pot Khmer Rouge 2 million
Bosnia Kosvar War crimes not attempt to destroy
protected group but remove culture
Rwanda Darfur
Palestinians 1948 700,00 displaced
DEFINITION
OF THE
CRIME
OF
GENOCIDE
For the Statute, genocide mean acts committed with intent to
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.
CONTRAVERISAL ISSUES
US Sterilsation programme of women with
special needs 1934 to 1970 files kept secret
 Children of the disppeared in Argentina and
Chile adopted by Military Elite.
 Rape of Muslim Women by Serb Forces.
 Removal of Palestinians 1948
 Loss of Land Rights aboriginals Australia and
Native Indians in USA
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GENOCIDE CRIME OF CRIMES
Menas Rea to destroy how to prove the case
 Hitler no one paper exists on the Final Solution
only a conference
 No policy statement no plan
 Crime Tribunals Yugoslavia and Rwanda proving
war crimes as opposed to crimes against
humanity
 ICC makes a hierarchy of crimes
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MENS REA
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‘with intent to destroy…’
specific intent, or dolus specialis
 relationship between art. 6 and art. 30?
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related issue of motive
addressed in words ‘as such’ (Niyitegaka, ICTR AC, July 2004)
synonymous with ‘discriminatory intent’ (relevant to crime
against humanity of persecution)
cultural genocide not involving physical destruction
 e.g., ‘ethnic cleansing’
 cultural genocide rejected by drafters (with exception of
forcibly transferring children)
 Syrian amendment is defeated in 1948: ‘Imposing measures
intended to oblige members of a group to abandon their
homes in order to escape the threat of subsequent illtreatment
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