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The special concern of the international law of human rights is action and inaction by states. The behavior of states has traditionally been the sole concern of international law...; the behavior of others has traditionally been the concern of domestic law... `International law doctrine now goes beyond state duty not to interfere with international human rights, to hold states accountable for not acting positively to ensure rights. Moreover,... international law now obligates states to use due diligence to prevent, investigate and punish systematic and egregious human rights violations between private actors…
In order to pursue such interests, there exist specific legal mechanisms for protecting human rights as well as monitoring abuses. Further, increasingly these mechanisms are expanding to include avenues for prosecution and punishment of human rights abuses. However, although significant gains have been made in this area, there still exist cases in which international human rights law and domestic law clash. When this happens, serious difficulties arise in the fight to uphold human rights.
In a perfect world, however, the fight for human rights is expanding. Based upon a combination of international humanitarian law (specifically applicable in times of armed conflict), and international human rights law, both are a body of international rules, agreed upon by treaty or “custom.” International Humanitarian law “protects persons and property that are, or may be, affected by an armed conflict and limits the rights of the parties to a conflict to use methods and means of warfare of their choice (ICRC 2003).” The legal treaties in which these rules are established are within the Geneva Conventions of 1949 and the Additional Protocol I (1977) and Additional Protocol II (1977).
The complement to this, International Human Rights Law is the set of international rules (again derived from treaty or custom) which govern the rights inpiduals and groups can expect from governments in general (2003). According to the principle, these rights are “inherent entitlements which belong to every person as a consequence of being human (2003),” and is codified by the treaties International Covenants on Civil and Political Rights and on Economic Social and Cultural Rights (1966), Conventions on Genocide (1948), Racial Discrimination (1965), Discrimination Against Women (1979), Torture (1984) and Rights of the Child (1989) (ICRC 2003). In addition, a large number of “soft laws” which are not based on treaty are included under this category.
It is important to note that the existence of these two branches of human rights laws are established to cover the greatest amount of possible circumstances while still remaining wieldy and effective. For example, International Humanitarian laws and provisions are considered rigid, and no departures from their principles are permitted, regardless of circumstance. However, International Human Rights laws do allow governments (in some instances) to depart from or “derogate” from specified rights in “situations of public emergency threatening the life of the nation (2003).”
However, this does not mean that governments in times of public emergency threatening the life of the nation have cart blanch to disregard human rights. Instead, according to the law, derogations must be “proportional to the crisis at hand, must not be introduced on a discriminatory basis, and must not contravene other rules of international law – including rules of International Humanitarian Law (2003).”
In addition to the above limitations, there is a class of human rights set aside by these laws that are not derogable under any circumstances. These include the right to life, and the protection from torture, cruel, inhuman, or degrading treatment or punishment, slavery, servitude, and retroactive criminal laws (2003). Thus, even in times of extreme peril, governments may not resort to any of the above activities against any person or group.
Both International Humanitarian Law (IHL) and International Human Rights Law (IHRL) legally bind governments (and in some cases non-government groups or “non-state actors”). Specifically, IHL covers both state and non-state actors in armed conflicts, while IHRL binds governments. Additionally, in some cases under IHL laws, inpidual persons may be held criminally responsible for what is known as “grave breaches” of the Geneva Conventions and Additional Protocol I, as well as for anything deemed to be war crimes (2003). Even in IHRL some inpidual criminal activities are punishable, provided that they are “international crimes” including genocide, crimes against humanity and activities that constitute torture (2003).
These laws are enforced and prosecuted by the International Criminal Court, as well as the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda. Further, the states themselves are bound to implement IHL and IHRL laws and must actively prevent and punish war crimes by establishing relevant legislation, apply “fundamental and judicial guarantees,” implement IHRL rules, and provide “legislative, administrative, judicial and other measures that may be necessary to give effect to the rights provided for in the treaties (ICRC 2003).”
Thus, inpidual states (governments) are required to take such actions as developing criminal laws to prohibit and punish acts against IHRL and IHL treaties. Collectively, governments agree to be bound by a supervisory system which includes the “Protecting Power mechanism, the inquiry procedure and the International Fact-Finding Commission (2003).”
Given, then, that these rights, laws, and protections of human rights exist, the above mechanisms are expanding beyond idealistic rule-making to real enforcement. The aftermaths of the recent Balkan wars are excellent examples of this. However, clashes remain between international human rights laws and domestic law in protecting human rights. One contemporary example of this problem is the United States’ use of interrogation techniques that violate the Geneva Convention. Specifically, in 2002, allegations emerged concerning detainees in U.S. custody in Afghanistan or while held by United States allies.
In a Washington Post article, authors allege that people held in Bagram Air Base in Afghanistan have been subjected to interrogation techniques which fit the Geneva Convention definition of torture. According to groups like Human Rights Watch, these people are guaranteed freedom from this treatment, be they “captured combatants, civilians or criminal suspects (HRW, 2002).” According to Human Rights Watch, these allegations are severe, in that “…Direct involvement or complicity in torture, as well as the failure to prevent torture by subordinates, may subject U.S. officials to prosecution under international law (2002).” Further, “Such acts are “grave breaches,” or war crimes, under the 1949 Geneva Conventions.”
Clearly, the prohibition against the above behavior is clear, and one would imagine that governments like the United States would have been immediately bound to stop such activities or risk prosecution. However, the reaction of the Bush administration illustrates the possible barriers and loopholes to block the very mechanisms that are expanding to prosecute and punish such abuses.
Indeed, the United States reacted to this by attaching a signing statement to the McCain anti-torture legislation that “…relies on the president’s Commander-in-Chief power to undermine domestic legislation and treaty provisions prohibiting the torture and cruel, inhuman, and degrading treatment of detainees in U.S. custody (Palmer 2006). Specifically, the administration took steps to reclassify what constitutes “cruel, inhuman and degrading” treatment as outside the sphere of U.S. interrogation techniques.
Clearly, the remedy for such actions (and the similar actions of other states) is to be found in the authority of the greater international community of treaty members, and with the agreed upon jurisdiction of the international courts. However, given the strong geo-political power of “superpower” nations like the United States, there remains the question of how to enforce the law against immensely powerful entities. As of today this continues to be a significant problem that undermines the future of Human Rights protections globally. One remedy, however, that may temper the “reinterpretation” trend begun by the Bush administration is for future leaders to recognize the folly of reinterpretation out of simple self-interest.
After all, if torture can be interpreted to serve the needs of one state, it only follows that all states may follow suit, putting all in jeopardy. Until the majority of governments come to that realization, the “on the ground” implementation of human rights law will remain imperfect. However, for now the world must deal with the imperfection of what is, and continue to work toward what should be in a world of ideals.
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