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LAW CAMPAIGN

Global forum to hear individual grievances is to be set up

Violation of human rights within nations

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 setforth 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 cooperation is needed before making any investigation or report against that human rights violating State.
Now, ifwe 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 InterAmerican 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 InterAmerican 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 theircitizens.
Moreover, underAfrican Charter of People's Rights underArticle47,55 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 enforcementfor 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 FarukAI Imran is currently studying LLM in International Law in UK.