Violation
of human rights within nations
Global
forum to hear individual grievances is to be set up
Barrister
Hassan Faruk Al Imran
After
the Second World War's experience, world community established the UN
to protect and promote human rights. UN's preamble states its purposes
are "to reaffirm faith in fundamental human rights in the dignity
and worth of the human person, in equal rights of men and women and
of nations large and small." One of the basic principles of the
UN is to achieve international co-operation in promoting and encouraging
respect for human rights and fundamental freedom (Article 1(3) of UN
charter). Moreover, Article 55 calls on the United Nations to promote
'universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion;'
and Article 56 provides: All members pledged themselves to take joint
and separate action in cooperation with the Organization for the achievement
of the purposes set forth in Article 55.
But surprisingly,
the UN Charter does not define the human rights; as a result Universal
Declaration of Human Rights (UDHR) was adopted in 1948. Its main aim
was to ensure minimum standard of human rights all over the world. Specially,
Article 8 of UDHR provides: Everyone has the right to an effective remedy
by competent national tribunals for acts violating the fundamental rights
granted to him by the constitution or by law. Later various international
human rights Conventions were adopted to ensure the human rights, e.g.
- the United Nations Convention on the Elimination of All Forms of Racial
Discrimination (CERD), the International Covenant on Economic, Social
and Cultural Rights (ICESCR) Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment, or Punishment (CAT).
Under the
human rights declaration the signatory party assured that they would
respect and ensure their obligations which are mentioned in the human
rights Conventions. Significantly, the Universal Declaration not only
urges the recognition of human rights but expects nations to provide
a remedy when those rights have been denied. When an individual is a
victim of human rights violations, that person has a 'right to an effective
remedy by the competent national tribunals' responsible for protecting
those rights (Article 8 of UDHR). The Universal Declaration likewise
requires access to foreign courts when the domestic conditions merit
it -i.e., when the individual is unable to avail himself or herself
of governmental protection- by asserting that every individual is entitled
to seek legal remedy, without qualification.
In Bangladesh
46 people were reported to have died from torture in custody of army
and police in 2002 (Amnesty International Magazine, 2003, Issue 120,
page-6). Moreover, Bangladesh government passed the law by which the
victims and their family had been restricted to get justice for that
incident from the domestic courts. Now the question is: what is the
consequence of the violation of international human rights? Where the
victims will go for justice? Where the victims will go for remedy? Is
there any specific International Human Rights Court?
The reality
is- still there is no international human rights court or international
tribunal for the violation of Universal Declaration of Human Rights.
Here I would like to mention the three international courts but none
of them have any jurisdiction to consider violation of individual's
human rights.
First,
although International Court of Justice is an UN court, but its jurisdiction
is only limited between the States, which settle the legal disputes
(Article 92 of UN charter). An individual who is victim of violation
of human rights has no right to bring any case before the court. Second,
although International Tribunals were established for Former Yugoslavia
and Rwanda for the violation of human rights, notwithstanding it deals
only the specific event of those particular countries. Third, most recently,
International Criminal Court has been established under the Rome Stature
(1998). But the main problem is the court does not purport to codify
international criminal law relating to abuses of human rights.
According
to the Article 5(1) of Rome Statute the crimes within the jurisdiction
of the International Criminal Court are categorised as (a) genocide;(b)
crimes against humanity; (c) war crimes, and (d) the crimes of aggression,
i.e. all are war crime or massive violation of human rights. Moreover,
Article 10 of the Statues states: 'Nothing in this Statute shall be
interpreted as limiting or prejudicing in any way existing or developing
rules of international law for purposes other than this Statutes'. This
indicates that the Statute is intended to set the minimum rather than
optimum standards and that international criminal law can continue to
develop with that in mind.
One
may ask whether the victims or their family have any right to bring
any allegation to the UN Human Rights Commission for the violation of
human rights against the State. The answer is it is very difficult to
bring any allegation by the victims or their family for the violation
of human rights. Because, under UN Economic and Social Council Resolutions
1215 and 1503 an individual or any NGO can bring any allegation for
the violation of human rights, subject to two conditions: i) there should
be gross / massive violation of human rights all over the country, and
ii) State consent and co-operation is needed before making any investigation
or report against that human rights violating State.
Now, if
we compare the UDHR with any other regional human rights mechanisms
then will find that the situation is totally different. Regional human
rights organs have specific human rights courts and the individual has
right to bring any allegation against the State for the violation of
human rights. In Europe there a human rights court and under Article
34 of European Convention of Human Rights the individual victim has
the right to bring any allegation against the human rights violating
State.
In Inter-American
system of human rights under Article 44 the victims or any NGO can bring
any allegation of violation of human rights before the Inter-American
human rights court. Article 44 of Inter- American Human Rights Convention
provides: Any person or group of persons, or any nongovernmental entity
legally recognised in one or more members states of the Organisation,
may lodge petitions with the Commission containing denunciations or
complaints of violation of this Convention by a State Party. Here I
would like to mention as an authority of my argument the "Guatemala
'Street Children" case, which is the first case dealing with police
brutality against street children before any international tribunal,
where five street children were killed by the Guatemala police, and
the victims of the family did no get any justice from the domestic court.
The Inter-American Court of Human Rights held that Guatemala was responsible
for the violation of human rights by its agents ( police), and the court
ordered reparation for the victims and there family.
It is said
that the decision is crucial to the development of the international
jurisprudence. Not only would it provide justice for the families of
the five murdered boy, but it also would encourage States world wide
to develop and enforce legal systems that can protect their citizens.
Moreover,
under African Charter of People's Rights under Article 47, 55 and 56
individual or NGO has the right to bring any allegation for the violation
of human rights. In "SERAC" Case Nigeria Government was held
guilty for violation of environmental rights. It is a first case before
an international human rights monitoring body that deals with alleged
violation of economic, social and cultural rights.
At present,
the denial of human rights is flagrant, in nearly all countries of the
world. Although Signatory countries have indicated they are committing
themselves to observe certain rights and if they fail to enforce them
they have subjected themselves to criticism or to court suit with possible
penalties. But, only criticisms is not enough, the reality is- still
there is no effective enforcement mechanism for the violation of Universal
Declaration of Human Rights, still there is no binding machinery to
ensure human rights; no clear guidelines of enforcement for the violation
of human rights; no specific court of Universal Human Rights; individual
complaints depend on optional protocol; moreover, all monitoring depends
only on reporting. In contrast, the regional human rights systems are
more effective than the Universal Declaration, as there are specific
human rights courts, and the rights of individual complaints are ensured
by the regional human rights Conventions. Therefore, it is time to re-think
how we can ensure the better protection of human rights, how can we
ensure justice for the violation of individual's human rights.
Barrister
Hassan Faruk Al Imran is currently studying LLM in International Law
in UK.