The United Nations and the protection of Human Rights: An analysis of issues and Institutional Mechanisms

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of international Human Rights and Humanitarian Law, Annex to the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission resolution 1999/33, U.N. Doc. E/CN. 4/2000/62 (2000), at para I.

Krill Francoise , “The Protection of Women in International Humanitarian Law”, International Review of the Red Cross, no. 249 (1985), http://www.icrc.org/Web/Eng/siteeng0.nsf7iwListl41/972748846C8C943FC1256B66005938BE ,

The United Nations human rights “entitlements”: the right to development analyzed within the application of the right of self-determination”, Georgia Journal of International and Comparative Law, Vol. 31, (2003) at p. 324.

Universal Declaration of Human Rights, res G.A. 217A (III), U.N. Doc. 4A/810 at 71 (1948), in Human Rights: A Compilation of International Instruments (New York: United Nations, 1988).

Reisman W. Michael , “Sovereignty and human rights in contemporary international law”, American Journal of International Law, Vol. 84, (1990) at p. 867.

UN WORLD SUMMIT OUTCOME 2005, UN Doc. A/60/L. 1, 15 September (2005), at Para 121.

Gregg A Bayer , “Human Rights Monitoring and the Failure of early Warning: A Practitioner’s View”, International Journal of Refugee Law, vol. 2, no. 1 (1990), at p. 62.

Thurer Daniel , “The “Failed State” and International Law”, International Review of the Red Cross, no. 836 (1999), at pp. 731-761; Armed Conflicts Linked to the Disintegration of State Structures, Preparatory document drafted by the International law, Geneva, 19-23 (1998).

Preamble, Rome Statute of the International Criminal Court 1998, U.N. Doc. AI CONF. 183/9 1998, See reprinted in International Legal Materials, vol. 37, (1998), p. 999.

Momtax Djamchid , “The Minimum Humanitarian Rules Applicable in Periods of Internal Tension and Strife”, International Review of the Red Cross, no. 324 (1998), http://www.icrc.org/WebEng/siteengO.nsf/iwpListl68/9B7EF03A055C1256B66005C4497 .

International Convenant on Civil and Political Rights, GA. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), UN Treaty Series, voll. 999, at p. 171 - Entered into force March 23, 1976.

Convention on the Elimination of All Forms of Discrimination again Women, GA. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, U.N. Doc. A/3951, (1984), Reprinted in UN Treaty Series, vol. 1465 (1987).

Convention on the Rights of the Child, GA. res. 44/25r annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49, (1989), Reprinted in International Legal Materials, vol. 28, (1989), at pp. 1456-76.

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, GA. res. 54/263, U.N. Doc. A/54/49, (2000), reprinted in International Legal Materials, vol. 39, No. 6, (2000), at pp. 1285 - entered into force February 12, 2002.

Oraa Jaime , “The Protection of Human Rights in Emergency Situations under Customary International Law”, in “The Reality of International Law: Essays in Honour of Ian Brownlie, Goodwin-Gill Guy S. , Talmon Stefan , (eds.), Clarendon Press, Oxford, (1999), at p. 413.

According to Article 4 of the ICCPR (1) in time of public emergency which threaten the life of the nation and the existence of which is officially proclaimed, the States parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, languate, religion or social origin. (2) No derogation from Articles 6, 7, 8 paragraphs (1) and (2), 11, 15, 16 and 18 may be made under this provision. (3) Any State party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation”. Article 4, ibid. Article 4, ICCPR, n. 13.

Article 4 (2), ibid.

Robertson A.H. , and Merrills J.G. , Human Rights in the World: An Introduction to the Study of the International Protection of Human Rights (Manchester, UK, Manchester University Press, 3rd edn., 1992), at o, 277.

Momtaz, n. 12.

Robertson, and Merrills, no. 22.

The 1974-1977 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts has adopted two Additional Protocols to the four Geneva Conventions of 1949, the Protocol I is relating to the Protection of Victims of International Armed Conflicts Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts Protocol I, 1977, reprinted in International Legal Materials, vol. 16 (1977), at p. 1391. Protocol II is relating to the Protection of Victims of Non-International Armed Conflicts. The Protocol II is a supplement to the Common Article 3 of four Geneva Conventions of 1949, it contained 28 articles. For Protocol II, See, Protocol Additional to Geneva Conventions of 12 August 1949, and relating to the Protection of the Victims of Non-International Armed Conflicts Protocol II, 1977, International Legal Materials, vol. 16 (1977), pp. 1442-9.

UN WORLD SUMMIT OUTCOME 2005, no. 8, at Para. 85.

Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, U.N. Doc. A/51/10, p. 137, cited in Momtaz, n. 12.

Kadam Umesh , “Protection of Human Rights During Internal Conflicts: Convergence of International Humanitarian Law and Human Rights Law”, Bulletin on IHL & Refugee Law, vol. 1, no. 2 (1996), at p. 225.

Ibid., at p. 237.

Minimum Humanitarian Standards, Commission on Human Rights Resolution 1997/21, U.N. Doc. E/CN.4/RES/1997/21, 11 April (1997), Para 4.

Declaration of Minimum Humanitarian Standards, adopted by an Expert Meeting convened by the Institute of Human Rights, Abo Akademi University, in Turku/Abo Finland, (30 November - 2 December 1990), reprinted in International Review of the Red Cross, no. 282-91991), at pp. 330-336.

“Fundamental Standards of Huminity”, Report of the Secretary-General, submitted pursuant to Commission on Human Rights resolution 2000/69, U.N. Doc. E/CN.4/2001/91, 12 (2001), at Para 5.

Ibid, at Para 6.

ibid.

Proclamation of Teheran, final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968).

Schindler D. , “The International Committee of the Red Cross and Human Rights”, International Review of the Red Cross, no. 208 (1979), http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpListl41/B680303DCEAF5E06C1256B6600590D7A; The Universal Declaration of 1948 discussions and debates indicates, that delegates were in favor of making the declaration to be applicable in times of peace. Only the delegate of Lebanon, Mr. Azkoul, while speaking on Article 26 of the draft 13 he said, that the Fundamental Human Rights, as set out in the declaration, should also be guaranteed even in the times of war. But the general consensus was, the declaration was intended for the times of peace. See, Robert Kolb, “The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions”, International Review of the Red Cross, no. 324 (1998), http://www.icrc.org/WebEng/siteengO.nsf/iwpList16885C81A4753C25BA9C125B66005C4296.

Osterdahl Inger , “The exception as the rule: lawmaking on force and human rights by the UN Security Council”, Journal of Conflict … Security Law, Vol. 10, (2005), at p. 2.

ibid., at p. 10.

ibid., at p. 9.

Komblum Elisabeth , “A Comparison of Self-evaluating State Reporting Systems”, International Review of the Red Cross, no. 304 (1995), at http://www.icrc.org/Web/Eng/siteengO.nsf/iwpList144/0118125C10892588C1256B6600591C15

The Human Rights Committee, which monitor the implementation of ICCPR. Therefore the States Parties to the 1966 ICCPR are under an obligation to submit the reports to the Human Rights Committee whenever the Committee so requests, on the measures they have adopted to give effect to the rights recognized in the Covenant and the difficulties if any in the implementation of the Covenant. Article 40, ICCPR, n. 13.

“At least once every four years, they shall forward to the Director-General a report giving whatever information they think suitable concerning any measures being taken, prepared of contemplated by their respective administrations in fulfillment of the present Convention and of the regulations for its execution”. Article 26, Convention for the Protection of Cultural Property in the event of Armed Conflict, n. 9; Also See, Hladik Jan , Reporting System under the 1954 Convention for the Protection of Cultural Property in the event of Armed Conflict, International Review of the Red Cross, no. 840 (2000), at pp. 1001-1016.

UN WORLD SUMMIT OUTCOME 2005, n. 8, at Para 125.

Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, Annex II, to The Impunity of Perpetrators of Human Rights Violations (Civil and Political), Final reported prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, U.N. Doc. E/CN.4/Sub.2/1997/20, 26 June 1997.

United Nations Security Council Resolution 1366, “on the role of the Security Council in the prevention of armed conflicts”, U.N. Doc. S/RES/1366, 30August 2001, International Legal Materials, vol. 41, no. 1 (2002), at p. 248.

Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704, annex (1993), reprinted in 32 International Legal Materials, vol. 32 (1993), at p. 1192.

Statute of the International Criminal Tribunal for the Prosecurition of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory in the Territory of Neighbouring States between 1 January and 31 December 1994, U.N. Doc. S/INF/50 Annex 1994, Reprinted in International Legal Materials, vol. 33 (1994).

The 1979 January 7th Vietnamese troops invasion of Cambodia overthrew the Pol Pot regime, and installed the Vietnamese backed Government the People’s Republic of Kampuchea (PRK) comprising part of former Khmer Rouge cadres such as Hun Sen. The new Government established a Tribunal to investigate and prosecute Pol Pot and leng Sary for their role during the Communist Party of Kampuchea (CPK) or known as Khmer Rouge era, A ten member Jury found them guilty for deaths of three million persons. The Tribunal found them guilty of genocide and sentenced to death. Since the trial was held in absentia and without fair process, the trial was regarded as illegitimate and shows trial. Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135 February 1999, Annex U.N. Doc. A/53/850, S/1999/231. In 1996 the United Nations resumed the issue of accountability at the initiative of the then newly appointed Special Representative of the Secretary-General Ambassador Thomas Hamnarberg on human rights in Cambodia. Later, his efforts resulted into a Resolution, which was adopted by the Commission on human rights April 1997 the Commission called upon the Secretary-General to “examine any request by Cambodia for assistance in responding to past serious violations of Cambodian and international law as a means of addressing the issue of individual accountability”. Commission on Human Rights Resolution 1997/49, U.N. ESCOR, Situation of Human Rights in Cambodia. U.N. Doc. E/CN.4/RES/1997/49 1997, accordingly, by letter to U.N. Secretary-General Kofi Annan dated June 21 1997 then first Prime Minister Norodom Ranariddh then Second Prime Minister Hun Sen requested the U.N. Doc. A/1997/488, then the Secretary-General appointed a three/member group of experts to study the existing evidence to determine the nature of the crimes committed by Khmer Rouge leaders between 1975-1979, and to examine the available legal options to bring them to justice. In the report submitted to the secretary-General the group of experts concluded that the evidence exist for the prosecutions under both Cambodian law, and international law mainly on the charges of crimes against humanity. And further recommended the UN establishes a tribunal to bring former CPK officials to justice. Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135 February 1999, Annex U.N. Doc. A/53/850, S/1999/23. Also see, Seven candidates for prosecution: accountability for the crimes of the Khmer Rouge, Report prepared by Stephen Heder, and Brian D. Tittmore, War crimes Research Office, Washington College of Law, American University and Coalition for International Justice June 2001, website at www.cij.org .

The Khmer Rouge took the power in the year 1975 over Cambodia, then called Democratic Kampuchea, and responsible for the killing of as many as two million people nearly one-third of the Cambodian population during its four years of brutal regime from April 1975 and January 1979. See, Seven candidates for prosecution, accountability for the crimes of the Khmer Rouge, Report prepared by Stephen Heder, and Brian D. Tittmore, n. 50.

It may be recalled; Cambodia’s judicial system is frequently criticized for its lack of independence, resources and notorious corruption. The failure of the Cambodian National Judicial and legal system is the major concerns of the UN for setting up a joint tribunal. Since the 1997, the UN and Cambodian government had been involving in the negotiations for the establishment of the tribunal to try the Khmer Rouge. During the negotiations, Cambodia insisted that the Cambodian law adopted by the national Assembly in August 2001 must be the bases for the establishment of the tribunal. But the UN insisted that the tribunal should be governed by a memorandum of between the UN and the Cambodia rather than the Cambodian law. Due to this disagreement, on 8 February 2002, the UN Secretary-General Kofi Annan announced the withdrawal from the negotiations over the creation of the tribunal. Cambodia, Human Rights Watch world Report 2003, Human Rights Watch, New York, p. 210; Linton Suzannah , “New Approaches to International Justice in Cambodia and East Timor”, International Review of the Red Cross, no. 845 (2002), at p. 93. However, in the month of July Hun Sen expressed his willingness to make necessary amendments to the law adopted in 2001. In August, Annan announced that he needed a clear mandate from either the UN. The General Assembly or the Security—Council to resume the negotiations. Human Rights Watch World Report 2003, at p. 210 and 518. On Wednesday, 18 December 2002 the UN, The General Assembly adopted a resolution, which was co-sponsored by such as France and Japan, called upon the Secretary-General to resume negotiations with the Cambodian authorities for the formation of the tribunal. However, the General Assembly called in its resolution, that the further negotiations must be based on the law adopted by the Cambodian national Assembly in 2001 which fall far short of international standards. The law establishing tribunal is unable to guarantee the necessary independence, impartiality, and objectivity. Further, the law establishing a mixed tribunal presided over by a majority of Cambodian judges, co-prosecutors and other International Judges and Prosecutors. It must be noted, that there must be a viable and credible judicial process that meet necessary international standards to the impunity. Diluting from international standards would not serve justice. Further, any judicial mechanism is contemplated to establish under the UN auspices should contribute substantially to the long-term commitment of strengthening the national courts i. e., national judicial and legal systems. See, Cambodia: Khmer Rouge must meet international standards, Human Rights Watch press release 19th December 2002 Human Rights Watch, New York, 2002.

Cambodia: Amnesty International’s preliminary views and concerns, News Release issued by the International Secretariat of Amnesty International, A1 Index: ASA 23/003/2003 (Public)-21 March 2003.

The U.N. Security Council under its Charter VII authority to restore peace and security to East Timor adopted a resolution 1272 on October 25 199, which established the “United Nations Transitional Administration for East Timor” (UNTAEF), has been “mandated to exercise all legislative and executive authority, including the administration of justice”. United Nations Security Council Resolution 1272 “On the situation in East Timor”, U.N. Doc. S/RES/1272/1999, 25 October 1999, International Legal Materials, Vol. 39, No. 1, January 2000, p. 240; Accordingly, the UNTAET has established four District Courts in East Timor, located in Dili, Baucau, Suai, and Oecussi. Appointed East Timorese judges, prosecutors and public defenders. Appointed East Timorese judges, prosecutors and public defenders. It is a transitional legal system, which retained the application of Indonesian law to the extend of that it is consistent with international human rights standards. It led to the establishment of a functional legal system for the transitional period and laying the foundations for the future courts of independent East Timor. It fulfilled the overriding need of justice for the crimes committed against the civilian population throughout the period of the Indonesian occupation, including the campaign of violence perpetrated by the Indonesian military and its militia groups between 1 January and 25 October 1999. In June 2000 the UNTAET created the Special Panels’ of Dili District Court and court of Appeal. The Special Panels within the Dili District Court have the exclusive jurisdiction over serious criminal offences such as genocide, crimes against humanity, war crimes and torture, as well as murder and sexual offences under the Indonesian penal code. While the first panel commenced its operations in 2001, and the second panel commenced in November 2001. The Special Panels of Dili District court is the mixed national/international justice mechanisms. Each Panel consists of one East Timorese judge, and two international judges furthermore, an Appeals Chamber is similarly composed to hear the appeals on the decisions rendered by the Special Timorese judges may be constituted in cases of special importance. However, some of the elements of right of fair trial were affected by the lack of effective administrative structure in the Special Panels. The judges do not have adequate resources, such as research facilities and administrative support. Such resource constraints resulted into the denial of the right of fair trial, which include, the right to trial without undue delay, right to public hearing, and right to an interpreter, Justice in practice: Human rights in court administration, Thematic Report 1, Judicial System Monitoring Programme 9JSMP), Deli, East Timor, November 2001.

United Nations Security Council: Resolution 1325 “On Women and Peace and Security”, U.N. Doc. S/RES1325, (2000), at Para 6, International Legal Materials, vol. 40, no. 2 (2001), at p. 500.

United Nations Security Council Resolution No. 1564, 18 September 2004, at Para 12.

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January (2005).

Ferencz Benjamin B. , “Telford Taylor: Pioneer of International Criminal Law”, Columbia Journal of Transitional Law, vol. 7 (1999), at p. 661. And also see http://www.benferenca.org/fearsnew.htm .

Extra Judicial, summary or Arbitrary Executions, Report of the Special Rapporteur, Ms. Asma Jahangir, Submitted Pursuant to Commission on Human Rights Resolution 2000/31, U.N. Doc. E/CN. 4/2001/9 (2001), at Para 63.

Dixon Rodney , “The International Criminal Tribunal for the Former Yugoslavia: Working for Peace and Justice in the Balkans”, South African Yearbook of International Law, vol. 20 (1995), at p. 38.

Richard Gold Stone, “Assessing the work of the United Nations War Crimes Tribunals”, Stanford Journal of International Law, vol. 33, no. 1 (1977), at p. 4.

Article 13(b), n. 11.

Marie-CIaude Roberge, The new International Criminal Court a Preliminary Assessment, International Review of the Red Cross, no. 325 (1998), at http://www.icrc.org/Web/Eng/siteengO.nsf/iwpListl69/21F4EF8999A2B66DC1256B66005C6C32.

Marler Melissa K. , The International Criminal Court: Assessing the Jurisdictional Loopholes in the Role Statute, Duke Law Journal, vol. 49 (2005), n. 8, at Para 138-40.

UN WORLD SUMMIT OUTCOME 2005, n. 8, at Para 138-40.

A more secure world: Our shared responsibility, Report of the High-level Panel on Threats, Challenges and Change, United Nations 2004.

Byers Michael , “Power, Obligation, and Customary International Law”, Duke Journal of Comparative and International Law, vol. 11, no. 1 (2001), at p. 81.

Article 2, Para 1, the UN Charter, no. 4.

UN WORLD SUMMIT OUTCOME 2005, n. 5, at Para 157.

In larger freedom: towards development, security and human rights for all, Report of the Secretary-General, UN Doc. A/59/2005, 21 March (2005).

UN WORLD SUMMIT OUTCOME 2005, n. 8, at Para 159.