Human Rights Midterm 1

Article 7, ICCPR

• The International Covenant on Civil and Political Rights

• “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

Article 5, UDHR

• Universal Declaration of Human Rights; created as a global response of World War II

• “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Article 3, European Convention on Human Rights

• “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

• According to Article 15, Article 3 is non-derogable

International Bill of Rights

• Collection of UDHR, ICCPR, and ICESCR

• There are two covenants because of significant political and ideological differences between the West and the East (specifically the Soviet Bloc)

• Western countries (usually led by the USA) emphasized Civil and Political Rights more, while the Soviet Bloc emphasized Economic, Social, and Cultural Rights. 

• International Community wanted to prevent future crimes after WWII, which led to the successful drafting of the International Bill of Rights

• Drafters came from different cultural backgrounds, thus making the bill diverse and strong and significant

Convention on the Rights of the Child

• UN treaty adopted in 1989 that recognizes specific rights for children; protection from harm, health benefits, etc.

• Once ratified, it’s legally binding

• USA didn’t ratify it

Alien Tort Statute

• Significant: way to promote human rights in domestic courts with statutes authorizing civil litigation

  • obtain compensation or a resolution that rectifies the harm suffered by one party due to the actions or negligence of another

  • Instrument to gain universal jurisdiction over violations of international law

  • Filartiga vs Pena Irala (1980, 1984)

Torture Victim Protection Act

• Allows victims of torture or extrajudicial killings to sue their perpetrators in US courts for civil damages

• Signed under George W. Bush

• Victims can sue foreign individuals in U.S. courts, even if:

  • The torture occurred outside the U.S.

  • Neither the victim nor the perpetrator is a U.S. citizen

  • Reflects principle of US jurisdiction

Proxmire Act

• Genocide Convention Implementation Act of 1987

• US federal law that implements the UN Convention on Genocide from 1948

• Makes genocide federal crime in US

• Named after William prixmire, who campaigned for the ratification of the genocide treaty for over 19 years

Genocide Convention, Article 2

In the present Convention, genocide means any of the following 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.

Maurice Cranston

• Political theorist

• Questioned whether some rights are "ridiculous" because government lack means to pay for these; some are just aspirations (1983)

• A famous example: Article 23 of UDHR guarantees the right to paid vacation and meaningful rest and leisure. However, ILO adopted conventions that protect labor rights, including the right to holidays.

Jack Donnelly

• Scholar who admits/concedes that human rights norms were derived from European Enlightenment and isn’t originally/not found in Asian and African countries/origins

• Challenges of Cultural Relativism: argument that Western method of guaranteeing human rights is best, and therefore we should try to spread that method to other countries

Henry Shue

• Theorist

• Challenge the premise that Civil and Political Rights are less expensive because they involve negative liberty, which requires non-action on part of the government. On the other hand, economic, social, and cultural rights are expensive because governments are required to take affirmative steps to pay (subsidize) for these. 

• Belives torture is widespread and growing, unlike slavery

• Idea of “basic rights”

Positive versus negative rights – false dichotomy (Henry Shue)

Positive Rights: rights that aren’t supposed to be interfered by other people

• Freedom of speech, freedom from torture

Negative Rights: rights that are supposed to be interfered by other people so that they could be provided

• Right to food, healthcare, education

Believes is false because all rights are supposed to be provided, whether they are supposed to be protected, trained, etc.

Ireland v UK

Filartiga v. Pena-Irala

• Filartiga ran a clinic and was a critic of the Paraguay regime of the time (regime supported by US)

• Chief of police, Peña-Irala, abducted and tortured to death his 17 year old son; police fabricated story saying he was involved with someone’s wife

• Family immigrated to USA and when they found our Pena was there, they filed a suit in US district court

• Provide proof that you could still get justice in other countries if their countries of origin no

• 2nd time, found out rights against torture was an international right to fight for, and therefore they won

• Cultural imperialism???

Selmouni v France

• Dutch-Moroccan; arrested by French authorities on drug trafficking

• Held in Paris of three days of question

• Said they hit him and other severe injuries

• By the time matters were taken to court, they did not have evidence of it happening

• Left eye impaired by these assaults

• Police getting light sentences

• Violation of Article 3 and Article 6 of European Convention 

• Took it to European court; France said it was not torture

• Shows the views of European torture is different from America (2 years before 9/11)

Tyrer case compared to Costello-Roberts v. the U.K.

For both cases, it depends on the severity of the physical assault; therefore, they didn’t violate Article 3 of the European Convention

UK v Ireland

• Involved people taken into custody in Northern Ireland by British authorities; detained without trial and interrogated

• Techniques used against these individuals using 5 techniques

• Ireland fired interstate complained against UK and says they violated article 3 of European Convention on Human Rights

  • Prohibition against torture

• Commission said these techniques did violate human rights

• Although 5 techniques are practice of torture, although their object was confessions and used systemically, they did not occassion the words of it being “torture” 

• Debate revived later and decided that it actually was torture

Besare Beccaria

utilitarian; against the death penalty because thought it wasn’t practical

Immanuel Kant

believed in death penalty because it made it equal compared to the crime made

5 techniques of “deep interrogation”

• Forcing to stand against a wall for several hours

• Keeping black hoods over detainees’ heads at all times except when being interrogated

• Holding detainees in a room where there was a loud hissing noise prior to the interrogation

• Depriving detainees of sleep prior to the interrogation

• Depriving detainees of adequate food and water

Aydin v. Turkey

Kurdish girl was raped and tortured by Turkish security forces.
Significance: First time the European Court of Human Rights ruled rape as torture under Article 3

Mohammed v. Jeppesen Dataplan

victims sued a CIA contractor for facilitating extraordinary rendition and torture.
Significance: Dismissed due to state secrets privilege, highlighting limits of accountability in US courts.

Sosa v. Alvarez-Machain

Alvarez was kidnapped from Mexico by DEA agents.
Significance: Defined limits of Alien Tort Statute (ATS); only "clearly defined" international norms can be sued for in US courts.

The Pinochet Case

Spain sought extradition of former Chilean dictator Pinochet for torture.
Significance: Landmark ruling that former heads of state are not immune from prosecution for international crimes like torture.

South Africa v. Grootboom

Homeless families sued for access to housing.
Significance: Established that economic and social rights (like housing) are legally enforceable in South Africa.

Bosnia and Herzegovina v. Serbia and Montenegro

• Had to decide whether massacres that occured during USSR constituted genocide under convention 

• Group may not show intent to prove that they wanted to create genocide

• Attack against non-Serbs (Muslims)

• Court looked at the mass killings; one episode where 2000-3000 people were killed in one camp; killings occurred, but was it to destroy the group? 

• Court found that Bosnia Muslims were victims

• Who was in charge of Yugoslavia? (the problem)

• Not clear if genocide made based on the people in charge or because of the people themselves? Because of this couldn’t hold Serbia responsible

El-Masri v. Macedonia

Khaled El-Masri was mistakenly kidnapped and tortured by the CIA with help from Macedonia.
Significance: ruled Macedonia violated Article 3 (torture), marking rare recognition of CIA rendition abuses.

Ius cogens

non-derogable principles of international law

“The Media Case”

International Criminal Tribunal for Rwanda

first to recognize mass rape as genocide; held members of the media responsible for broadcasts intended to encourage genocide

Opinio juris

"an opinion of law or necessity"

written in customary law