Masters thesis of business human rights observance in south sudan a recipe for peace and sustainable development

Lessons Learned and Findings from the South Sudan Conflict 124 AUCISS African Commission of Inquiry for South Sudan CAT Convention Against Torture CPA Comprehensive Peace Agreement CE

Human Rights Observance in South Sudan: A recipe for Peace and Sustainable Development

A thesis submitted in fulfilment of the requirements for the degree of Master of Business

Andrew O’hide Odingdingmoi Ohuli

Master of International Development and Environmental Analysis

Monash University

Graduate School of Business and Law College of Business and Law RMIT University

October 2020

I Andrew O’hide Odingdingmoi Ohuli certify that except where due acknowledgement has been made, the work is that of the author alone; the work has not been submitted previously, in whole

or in part, to qualify for any other academic award; the content of the thesis is the result of work which has been carried out since the official commencement date of the approved research program; any editorial work, paid or unpaid, carried out by a third party is acknowledged; and, ethics procedures and guidelines have been followed

I acknowledge the support I have received for my research through the provision of an Australian Government Research Training Program Scholarship

Date: 27 October 2020

5 Key Research Question 10

7 Objectives of the Research 11

10 Human Rights Overview in South Sudan 12

11 The Causes of War and human rights in South Sudan 19

CHAPTER TWO: INTERNATIONAL AND AFRICAN HUMAN RIGHTS SYSTEMS

d Optional Protocol to the Civil and Political Rights 36

e Second Optional Protocol to the Civil and Political Rights 36

f The International Military Tribunal at Nuremberg 37

b United Nations High Commissioner for Human Rights 38

d Committee on Economic, Social and Cultural Rights 41

16 Human Rights Under the African Charter 44

b The African Charter on Human and Peoples’ Rights 45

c The African Commission on Human and Peoples’ Rights 47

d The African Commission Complaint Procedures 48

e The African Court on Human and Peoples’ Rights 48

f African Charter on the Rights and Welfare of the Child 50

g The ‘Right to Development’ within the African Charter 52

17 Human Rights Framework and the South Sudan Human Rights Abuse 57

CHAPTER THREE: HUMAN RIGHTS ABUSE AND INSECURITY IN SOUTH SUDAN

19 Historical Background of the Conflict in South Sudan 64

20 The role of Regional and International NGOs in Ending the Civil War in South Sudan 67

21 International Covenant on Civil and Political Rights 70

a Freedom from Torture and Cruel, Inhuman or Degrading

b Freedom from Arbitrary Arrest and Detention: 73

22 International Covenant on Economic, Social and Cultural Rights 87

a The Rights to Equality and Non-discrimination 87

CHAPTER FOUR: NATIONAL, REGIONAL, AND INTERNATIONAL OPTIONS

FOR ENFORCEMENT OF HUMAN RIGHTS IN SOUTH SUDAN

23 Attempt for Negotiation to end civil war in South Sudan by the IGAD, AU,

UN and EU 100

24 Economic and military sanction to force the Government to Accept Peace

and Respect the Rights of its own Citizens 115

25 Withdrawal of Donation/Financial Support to the Government by the

Donors if the Government and the Opposition Refuse to end Conflict and Human

Rights Abuse in the Country 120

26 Challenges to sustainable peace in South Sudan 122

27 Possibilities to Sustainable Peace in South Sudan 123

28 Lessons Learned and Findings from the South Sudan Conflict 124

AUCISS African Commission of Inquiry for South Sudan

CAT Convention Against Torture

CPA Comprehensive Peace Agreement

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women;

Committee on the Elimination of Discrimination Against Women

CERD International Convention on the Elimination of All Forms of Racial Discrimination CRC Convention on the Rights of the Child; Committee on the Rights of the Child

CSW Commission on the Status of Women

ECJ European Court of Justice

ECOSOC Economic and Social Council

EU European Union

ICC International Criminal Court

ICJ International Court of Justice

IDP International Displaced Person

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

IGAD Inter-Governmental Authority on Development

LRA Lord Resistance Army

NGO Non-Governmental Organisation

OAU Organisation of African Unity

OAS Organisation of American States

OHCHR Office of High Commissioner for Human Rights

R2P Responsibility to Protect

SPLM/SPLA Sudan People’s Liberation Movement/ Sudan People’s Liberation Army

SSTC South Sudan Transitional Constitution

TGNU Transitional Government of National Unity

Troika Members of the Troika include Norway, the United Kingdom and the United

States who support South Sudan peace initiative alongside IGAD

UDHR Universal Declaration of Human Rights

UN United Nations

UNHCHR United Nations High Commissioner for Human Rights

UNHCR United Nations High Commissioner for Refugees

UNESCO United Nations Educational, Scientific and Cultural Organisation

UNICEF United Nations Children’s Fund

UNMISS United Nations Mission in South Sudan

UNSC United Nations Security Council

Human Rights Observance in South Sudan: A Recipe for Peace and Sustainable Development

Abstract

The international human rights are frequently characterised as corresponding to three generations The first generation is referred to as Civil and Political Rights, which includes the rights which are enshrined in the International Covenant on Civil and Political Rights (ICCPR) These include freedom of expression and the right to life The second generation relates to economic, social and cultural rights They are found in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and include the rights to work, health and education The third generation of rights are commonly said to include the right to development, minority rights and the right to peace Despite the diversity of these rights, they all seek to protect human beings from fear and wants, and share a common purpose which is

to alleviate injustices and promote respect for human rights in the world All three generations

of human rights have been exceedingly violated in South Sudan, since the outbreak of conflict

in 2013 This research highlights the challenges posed by the gross violation of the ICCPR and its Optional Protocols, the ICESCR and the African Charter on Human and Peoples’ Rights (ACHPR) in South Sudan The study is by no means exhaustive in documenting the large number

of violations of international human rights and humanitarian law that have occurred in South Sudan for the period from December 2013 to 2017 Rather, the research broadly investigates the issue of human rights abuse in South Sudan post-Independence and the measures that may be taken to address it The research highlights the connection between human rights abuse, political instability and insecurity in South Sudan The thesis examines the legal and political measures that may be adopted to promote respect for human rights and the pursuit

of sustainable development in the country The research concludes that some of the violations

of human rights may amount to war crimes and crimes against humanity

Keywords: Intergovernmental Authority for Development (IGAD), Sustainable Development, social inclusion, minority rights, human rights, United Nations Mission In South Sudan (UNMISS), Comprehensive Peace Agreement (CPA), The members of the Troika (Norway, the United Kingdom and the United States)

Chapter One: Research Overview

1 Introduction

This Master’s research thesis examines holistically the gross violations of the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocols, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the African Charter on Human and Peoples’ Rights (ACHPR) in the Republic of South Sudan, mostly by state actors, over the past six years In regards to African Charter on Human and Peoples’ Rights (ACHPR), South Sudan is the latest African country to join the AU and ratify the African Charter on Human and Peoples’ Rights on the 23 October 2013,1 which means they are bound to respect and promote the Charter in the country Since South Sudan attained its independence from Sudan in 2011,

it quickly descended into a civil war in 2013, claiming the lives of thousands of (mostly) civilians because of their ethnic identity or their perceived alignment with the opposition or government ‘More than 60 000 South Sudanese have been killed, 1.66 million have been internally displaced, and over 770 000 have fled to neighbouring countries Epidemics have affected areas where people have sought refuge Out of 11 million inhabitants, 4.5 million currently face severe food insecurity.’2

In the country’s key towns, most people lost their livelihoods; public infrastructure, including clinics, hospitals and schools, was looted and burnt down or occupied.3 In view of this brutality, many people chose to seek refuge at the UN Mission in South Sudan (UNMISS) compounds As the security situation continued to unfold in South Sudan, combating forces loyal to the South Sudan government and the opposition continued to practise abduction, harassment, detention and restriction of access to the affected areas by UN and humanitarian aid workers.4 As the conflict spread throughout the country, the government turned even more repressive, beating, harassing and torturing human rights workers, political opponents and journalists.5

Undoubtedly, such practices fundamentally undermine and shrink the values of a democratic society Complicit in this grave situation was the Inter-governmental Authority for Development (IGAD), which appeared to favour one side of the conflict.6 In reaction, the UN Security Council imposed an arms embargo on South Sudan’s government and further sanctioned some senior officials in the government, including military commanders from both sides of the conflict, freezing their assets.7 This intervention by the UN Security Council was necessary to minimise the atrocities that civilians were experiencing

1 African Commission on Human and Peoples' Rights, State Parties to the African Charter

Available at>

https://achpr.org/statepartiestotheafricancharter#:~:text=The%20African%20Charter%20on%20Human%20and%20Peoples%E2%80% 9 9%20Rights,having%20ratified%20the%20Charter%20on%2023%20October%202013.<

2 European Parliament Think Tank, ‘Peace agreement in South Sudan Ambitious but hard to deliver’ Briefing (2 Feb 2016) Available at

South Sudan is a multi-ethnic society of over 60 tribes This reality should have been reflected

in the government institutions after its independence from Sudan, by balancing diversity in employment, particularly in key areas such as the army, security and high political positions The South Sudan government is mostly dominated by the two main largest ethnic groups – the Dinka and the Nuer The deliberate exclusion of the remainder of the ethnic groups raises the question of the future stability of the government, because where there is marginalisation of minority groups within a country, there is bound to be a high prospect of conflict and consequently, war Virgil Wiebe believes that gross, systematic and persistent abuse of minority rights are leading contributors to civil conflict in many countries across the world.8 It

is significant that minority tribes, civil society, women organisations and other armed groups are included in peace negotiation to bring a promising and lasting peace to South Sudan Therefore, equality, justice, and respect for human dignity should be prioritised in the government’s long-term goals in order to establish a fair judicial system that is acceptable for all The South Sudan Transitional Constitution (SSTC 2011) provides that: ‘South Sudan is founded on justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms’ Article 1 (5).9 In practical terms this has not been the case, as South Sudan law enforcement authorities, including the opposition, have been acting contrary to what is stated in the Constitution, and the country’s leadership is dominated by ethnic grouping, making law and order meaningless

This research examines the challenges posed by human rights abuse and violation in South Sudan, including those cases that might amount to war crimes or crimes against humanity War crimes and crimes against humanity in this context refers to an acts that constitutes a serious violation of the laws of war giving rise to individual criminal responsibility; however, they are not a major focus of this research Such crimes might include intentionally killing civilians, torturing, raping, using child soldiers and the destruction of civilian properties in which the research has covered The research highlights the legal and political measures that may be adopted to promote respect for human rights and the pursuit of sustainable development in the country

2 Research hypothesis

The primary hypothesis that has guided this research since the beginning of the 2013 conflict

in South Sudan is that the mediation and ceasefire approaches to the violence would help end the conflict in the country This notion has been the main goal that the IGAD, AU and the international community has been striving to accomplish in order to usher in lasting peace and political stability in the war-ravaged country However, this apparent unfortunate expectation was based on the general belief that mediation and ceasefire more often enable nations, organisations and individuals to effectively end conflicts themselves In an attempt to make mediation and ceasefire an effective tool in a conflict that involves many actors, it is necessary

to look at what makes them an effective tool to resolve conflicts It has been widely established

8 Virgil Wiebe, ‘The prevention of civil war through the use of the human rights system’ (1995) 27 New York University Journal of

International Law and Politics 410.

9 Government of South Sudan The Transitional Constitution of the Republic of South Sudan 2011, Art 1(5) constituteproject.org Available

at: <https://www.constituteproject.org/constitution/South_Sudan_2011.pdf>

that collaborations and coordination between different political or organisational actors, which are engaged in the mediation process in most conflicts in Africa, essentially represent a critical factor in the success of any mediation process.10 Therefore, the IGAD, as the leading mediator

in the South Sudan conflict, should employ policies relevant to the concept of the African Peace and Security Architecture in order to ensure the success of political stability in South Sudan The research also revealed that the inclusion of different political groups, rebel and civil society entities in a mediation process could prove to be helpful in the search to bring lasting peace to the country Finally, the study hypothesised that promotion of and respect for human rights and international law could effectively transform the government to improve the political and economic climate in South Sudan

Despite the term ‘human rights’ being relatively popular in Africa in the 20th century, people have been struggling to attain freedom, dignity, and social justice in that part of the world for many years In the context of the South Sudan conflict, the country has witnessed one of the worst and most devastating conflicts on the African continent Since the start of the conflict, thousands of civilians have been internally displaced, and many have sought refuge in neighbouring countries, with hundreds sheltering in UN bases in towns across the country Both sides of the conflict have committed abuses that qualify as war crimes, including looting, indiscriminate attacks on civilians, the destruction of civilian property, arbitrary arrests and detention, beatings and torture, enforced disappearances, rape including gang rape, and extrajudicial executions Some abuse may also constitute crimes against humanity

To address this, the African Union (AU) and the UN human rights instruments and resources need to be deployed to address issues of human rights violation and facilitate the process of attaining the goal of fostering peace in South Sudan

It is noteworthy that UN Sustainable Development Goals call for economic and social development, as well as poverty alleviation at a global level With respect to the political situation that is the underlying root of the instability in South Sudan, it is evident that the AU,

UN and IGAD, need to embark on an effective strategy to usher in peace in South Sudan

3 Broad Research Question

How can the international human rights protection and enforcement framework under the United Nations and African Union systems be utilised to foster peace in South Sudan?

4 Background of the Study

South Sudan gained independence from Sudan on 9 July 2011, the outcome of a 2005 Comprehensive Peace Agreement (CPA) signed in Machakos, Kenya, which ended Africa's

10   African Union Commission, Peace and Security Department, African Peace and Security Architecture

(2016 – 2020, p.37)

longest-running civil war.11 South Sudan was devastated by the civil war, which hindered the development of basic infrastructure, human capital and formal civilian institutions South Sudan was also afflicted by massive humanitarian needs that continued to persist after independence, despite the country’s wealth of natural resources, including oil fields in Upper Nile States and gold in the Eastern Equatoria state It is believed that corruption has played a very destructive role in slowing the post-war recovery and development agenda South Sudan President Salva Kiir came to power in the 2010 general election of what was then the semi-autonomous region of Southern Sudan within the Republic of Sudan On 14 July 2011, the Republic of South Sudan officially joined the United Nations as the world’s 193rd nation.12

In December 2013, the power struggle between the country’s ruling political party the Sudan People’s Liberation Movement (SPLM), and the political wing of the Sudan People’s Liberation Army (SPLA) erupted in violence.13 President Kiir accused former Vice-President Riek Machar

of plotting a coup against his government Riek Machar also accused President Kiir of acting unilaterally and dictatorially.14 After heated accusations between the two respective leaders, the conflict spread rapidly to the rest of the country, leading to killing and serious human rights violations being perpetrated against civilians, women and children, as well as massive displacement,15 especially in the Upper Nile States In 2015, the parties to the conflict signed a ceasefire agreement, but it was not honoured by either side.16In 2016, a second civil conflict broke out in Juba between forces loyal to the President and former Vice-President, leading to intense fighting As a result, the forces loyal to the President took control of the capital and drove Machar’s forces out of Juba while, Machar fled the country to the neighbouring Congo

5 Key Research Question

How can the international human rights protection and enforcement framework under the United Nations and African Union systems be utilised to foster peace in South Sudan?

Sub-Questions

1 What role can the enforcement of human rights play to foster peace and

sustainable development in South Sudan?

2 What role can regional and international organisations such as the African Union

and the United Nations play in ensuring the observance and enforcement of human rights in South Sudan?

11 BBC News, ‘South Sudan country profile’ (6 August 2018) Available at

15 European Parliament Think Tank, ‘Peace agreement in South Sudan ambitious but hard to deliver’ (2016)

16 BBC News, ‘South Sudan troops break ceasefire – Riek Machar’ (31 August 201) Available at

<https://www.bbc.com/news/world 34106670>

3 Why did the measures deployed by the Inter-governmental Authority on

Development (IGAD) fail to bring lasting peace in South Sudan?

6 Scope of Research

The issue of human rights violation in South Sudan has been a major cause of concern for the international community for the last nine years in the aftermath of the secession of South Sudan in 2011 Following the devastations of the world’s newest nation, which subsequently resulted in an influx of refugee into neighbouring countries, the situation continues to present serious economic, social and security problems, including challenges for sustainable development and regional peace This thesis investigates options for enforcing human rights

in South Sudan, through the UN and AU frameworks and international human rights obligations enshrined in the African Charter, the ICCPR and ICESCR, with the hope of providing concise recommendations on how human rights can be improved and promoted in the country

The central objective of this research is to investigate how the enforcement of international human rights is well recognised in international conventions, such as the International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic, Social and cultural Rights (ICESCR), and the African Charter on Human and Peoples’ Rights (ACHPR) may provide effective strategies for dealing with the South Sudanese conflict The research uses both analytical and evaluative doctrinal legal research methods and shall not involve any form

of interviews or fieldwork trips in a targeted research setting

Therefore, this thesis applies a qualitative research approach to evaluate the human rights challenges in South Sudan and examine the failure of measures deployed by IGAD to end the conflict in South Sudan Use of this method allows the researcher to employ a combination of data collection strategies The research resources are gathered from different regional and international organisations, research publications, reports, journal articles, conventions, international declarations, electronic sources, books, and regional and national agreements,

to build a solid foundation for the research This will enable the researcher to validate and ensure the reliability of the findings suggested in the method of triangulations.17

17 Bruce L Berg, Qualitative Research Methods for the Social Sciences (Pearson Education, 6th edn, 1989) 6–7

There is a dearth of literature on the role of human rights enforcement in restoring peace in South Sudan.Even though there is material on human rights the ICCPR and ICESCR, this studycharts a new path by highlighting howpeace and sustainable development can be achieved through a human rights-based approach

Because of the historical nature of the conflict and human rights violations in South Sudan, finding data was a complex issue; therefore, the researcher believes that suitable research methods and techniques are required to help explain and contribute to understanding of the social and economic impact of civil war in South Sudan This research method uses archival records and secondary sources that have been employed to collect data It has been established that the selection of a suitable topic, the research design, ethical issues and data collection are contingent upon the researcher’s ontological and epistemological perspective at the start of each research project.18 Due to the insecurity in South Sudan, this research does not include interviews as part of the data collection In the conclusion, the researcher shall make recommendations on how the existing human rights violation in South Sudan can be addressed without excluding all parties to the conflict

9 Research findings and benefits

The outcome of the research will be useful to the reader, regional and international organisations, and the state and central governments of South Sudan The research will provide

an informative analysis of the connection between human rights violations and challenges to sustainable development in South Sudan, thereby adding to the regional and international literature in the field While the research does not seek to provide a final solution to the human rights problem in South Sudan, it will contribute to the debate on the role of the UN and AU human rights enforcement frameworks to end violence in South Sudan, particularly in relation

to the respect for and promotion of human rights

10 Human Rights Overview in South Sudan

Violation of human rights is an issue that continues to assume ominous proportions in many countries across Africa as well as the rest of the world, but it is of particular concern in South Sudan The Republic of South Sudan has not ratified any of the UN human rights treaties.19

However, South Sudan National Legislative Assembly has ratified the following treaties; The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

1984, The Convention on the Rights of the Child 1989, The African Charter on Human and People’s Rights and The Convention Governing the Specific Aspects of Refugee Problems in Africa 1969”.20 However, it is universally acknowledged that human rights are moral principles

or norms that describe certain standards of human behaviours; they are generally understood

as inalienable, fundamental rights to which all people are inherently entitled Yet human rights

18 Heinnie Boeije, Analysis in Qualitative Research (Sage Publications, 2010) 15

19 International Commission of Jurists, South Sudan: International treaty status (16 June 2014) Available at>

status/<

https://www.icj.org/cijlcountryprofiles/south-sudan/south-sudan-introduction/south-sudan-international-treaty-20 Ibid.

are not respected in many parts of the world, particularly in developing nations This raises special challenges for their realisation, even though they should be applicable everywhere at any time, in the sense of being universal According to the report of the United Nations Mission

in South Sudan (UNMISS),there has been a clear disregard for human rightsby the government

of South Sudan The report observes that

‘from the very outset of the violence, gross violations of human rights and serious abuses of humanitarian law have occurred on a massive scale Civilians are not only caught up in the violence, they are directly targeted, often along ethnic lines.’21

As human rights violations continued to occur in the South Sudan civil war, UNICEF estimated that 16,000 children were recruited as child soldiers during the war The majority of these children were linked to the rebel-aligned community forces As a result of the recruitment, UNICEF warned in August 2016 that a new spike in child recruitment could be imminent, raising concern about recruitment with the government.22 Children were not the only group targeted

by government and the opposition’s main rebel group, with women also targeted by both parties to the conflict Conflict-related sexual violence in South Sudan has been used as a weapon to target women According to independent reports, there is concern about

‘systematic’ ethnically targeted rape, particularly among the two larger rival ethnic groups in the country These abuses are deliberately extended to other communities in South Sudan Based on those points, it appears that the rights of the child and the Convention on the Elimination of all Forms of Discrimination Against Women have been violated by the forces loyal to both the government and opposition

According to the UN Panel of experts established under Security Council Resolution 2206, all parties to the conflict in South Sudan were found to have targeted civilians ‘as part of their military tactics’, including through the deliberate use of rape.23 Despite efforts by the East African Community under IGAD to end conflict in South Sudan, there has been less indication

of accountability for any serious abuses committed during the conflict, despite a rhetorical commitment to justice from both sides At the onset of the conflict, the AU mandated the establishment of the African Commission of Inquiry on South Sudan (AUCISS) to investigate all human rights violation and other abuses committed during the conflict Led by the former president of Nigeria, Olusegun Obasanjo, AUCISS publicly released its final report in October

2015 The report states:

‘The investigations reflect that violations documented were committed in a systematic manner and in most cases with extreme brutality In this context the Commission found cases of sexual and gender-based violence committed by both parties against women It also documented extreme cruelty exercised through mutilation of bodies, burning of bodies, draining human blood from people who had just been killed and forcing others

21 UNMISS, Conflict in South Sudan: A Human Rights Report, 8 May 2014

22 UNICEF, ‘Situation for children in South Sudan deteriorating,’ 27 November 2015; Human Rights Watch, ‘“We can die too”: Recruitment and the use of child soldiers in South Sudan’, 14 December 2015; Justin Lynch, ‘South Sudan

government recruited child soldiers, UN, says’, Associated Press, 18 August 2016

23 UN Security Council, Interim Report of the Panel of Experts on South Sudan established pursuant to Security Council Resolution 2206 (2015), UN Doc S/2015/656 (21 August 2015)

from one ethnic community to drink the blood or eat burnt human flesh Such claims were registered during interviews of witnesses of crimes committed in Juba Elsewhere, witnesses of crimes committed in Bor Town, also provided evidence of brutal killings and cruel mutilations of dead bodies In Malakal town, reports of abduction and disappearance

of women from churches and the hospital where communities had sought refuge during the hostilities that began in December 2013 were rife’24

Therefore, with such a high level of human suffering experienced by the people of the world’s newest nation during the conflict, there is a need to create an environment where human rights and fundamental freedoms are respected and observed for all people of South Sudan with no favour on the basis of race, ethnicity language or religion

Despite the ongoing violations of human rights by both parties to the conflict in South Sudan, Article 9 of the Transitional Constitution of South Sudan recognises all rights and freedoms of individuals and groups and acknowledges a commitment to respect and promote human rights and fundamental freedoms as the cornerstone of social justice, equality and democracy.25

Although Article 9 forms part of the country’s constitution, the government appears to be totally unaware of the content of this important provision Today, the written constitution of each African country recognises the concept of human rights and the inter-governmental organisation of African states, while the African Union regards the realisation of human rights

as one of its primary objectives and principles.26However, the question remains whether the historical development of the concept of human rights is well understood by dictators and rulers, who in the past and present governments of Africa have continued to ignore the concept, despite the fact that the African Charter on Human and Peoples’ Rights recognises its universality

Osiatynski (2009) argued that the presence of human rights in many constitutions does not translate into actual respect for all human rights He believes that ‘the protection of rights requires more than the constitutions, ratified conventions, as well as independent judiciary, as such human rights are better protected in the political systems based on the principle of separation of powers and with checks and balances that does not allow disproportionate excessive concentration of political power.’27 Exploring the concept of human rights both politically and socially, particularly in our contemporary world, requires a deep understanding

of the historical roots of the concept and how it can be translated into our daily protection today

The field of international human rights law has disparate historical origins.28 Before World War

II, the content of international law was largely limited to international matters, such as the rules of war, maritime boundaries and diplomatic immunity Under the traditional conception

24 African Union, Final Report of the African Union Commission of Inquiry on South Sudan, 15 October 2014

25 Government of South Sudan Transistional Constitution, 2011 Available at

<http://www.sudantribune.com/IMG/pdf/The_Draft_Transitional_Constitution_of_the_ROSS2-2.pdf

26 Christof Heyns, ‘The African Regional Human Rights System: The African Charter’ (2004) 108 Pennsylvania State Law Review, 679

27 Wiktor Osiatynski, Human Rights and Their Limits (Cambridge University Press, 2009) 70–1

28 Mark Freeman and Gibran Van Ert, International Human Rights Law: Essentials of Canadian Law (Irwin Law, 2004) 3

of international law, the way the nation treated its citizens was a purely domestic issue as the international law itself did not regulate human rights.29 In response to the atrocities and inhumane treatment of civilians committed during World War II, the international community sought to define the rights and freedoms necessary to secure the dignity and worth of each individual within specific countries

It was the events of the Holocaust that led the international community to change the focus of international law to include some degree of regulatory control over the way a nation treats its citizens.30 One of the key purposes of the UN’s role was to promote and encourage respect for human rights and fundamental freedoms.31 The UN General Assembly, in the 1948 Universal Declaration on Human Rights (UDHR),32 gave content to this aspiration, listing dozens

of rights and freedoms that the nations of the world should strive to promote.33 Since the adoption of the UDHR,34 the rights and freedoms were set into two broad categories as follows: The International Covenant on Civil and Political Rights (ICCPR); and the International Covenant

on Economic, Social, and Cultural Rights (ICESCR).35 Although the UDHR is not a legally binding document, the international covenants on human rights form the cornerstone of an extensive series of internationally binding treaties that cover a wide variety of issues in the field of human rights 36The two international covenants expand upon the UDHR, while other human rights instruments were also established, including: The International Covenant on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and the United Nations Convention on the Rights of the Child (CRC), drawing on the scope and content of the Universal Declaration.37

In order to make human rights an instrument capable of shaping the lives of individuals and nations, rather than just a political proclamation, the international community was required to address human horrors such as the Holocaust, genocide, and the World Wars Although many years have passed since its proclamation, human rights are still not respected in many developing countries such as South Sudan, where ongoing human suffering continues to increase In December 2013, the political tension between the two key political leaders in South Sudan erupted into violence The political dispute that triggered the crisis was not initially based on ethnic identity; however, it overlapped with pre-existing ethnic and political grievances between the two leaders of the ruling political party, the Sudan People’s Liberation Movement/ Army (SPLM/SPLA), sparking armed clashes and targeted ethnic killings in the

29 Jack Goldsmith, ‘International Human Rights Law & the United States Double Standard’ (1998) 1 Green Bag 2d, 365.

30 ibid 366

31 Winston P Nagand and Joshua L Root, ‘The emerging restrictions on sovereign immunity: peremptory norms of

International Law, The UN Charter, and the Application of Modern Communications Theory’ (2013) 38(2) North Carolina Journal of International Law and Commercial Regulation 375–471

32 UN Universal Declaration on Human Rights (1948) Available at rights>

<https://www.un.org/en/universal-declaration-human-33 Goldsmith, International Human Rights Law and The United States Double Standard, 365

34 UN Universal Declaration on Human Rights (1948)

35 Mirko Bagaric, Future Directions in International Law and Human Rights (Sandstone Academic Press, 2007) 123

36 UN Office of the High Commissioner for Human Rights, Civil and Political Rights: the Human Rights Committee (May 2015,

p 1) Fact Sheet 15 (Rev 1) Available at: <https://www.refworld.org/docid/4794773c0.html>

37 Rhonda KM Smith, Textbook on International Human Rights (Oxford University Press, 5th edn, 2012) 39

capital, Juba and beyond.38 The fact that President Kiir came from the Dinka tribe and President Machar came from the Nuer tribe, contributed to the conflict in the South Sudan because the two tribes constitute the largest population in the country Both tribes seem to have historical grievances dating from the SPLM/SPLA fight against the Khartoum regime in

Vice-1990 As the fighting continued in the capital, atrocities were committed by both sides of the conflict.39 A common feature of the conflicts in these areas are the grievances expressed by local communities, who have accused the national army and allied militia of land grabs, looting, predatory attacks on civilians, and extrajudicial killings of perceived opposition supporters.40

However, the continuous upsurge has not only been marked by allegations of rampant killing, rape, abduction, looting and displacement, but by a new level of brutality and intensity, including such horrific acts as burning people alive inside their homes.41 This gross violation of human rights suggests that there is a depth of animosity that exceeds political differences occurring towards civilians, and which requires immediate investigation to ensure the perpetrators are brought to justice

The implementation of the rights enshrined in the ICESCR can greatly enhance the developmental objectives of the country, especially in relation to its economic, social and political development Achieving economic development in a country such as South Sudan requires a stable government that respects human rights The ongoing conflict in the country has driven the country backwards with devastating effects on infrastructure such as educational institutions, health care institutions, agricultural and housing facilities, as well as employment opportunities These are all strong indications of the government’s failure to protect its citizens and provide adequate services Both Article 25 (1) of the UDHR42 and Article

11 (1) of the ICESCR43 impose legal obligations on the stateto protect the social and economic interests of the citizens Article 26 of the ICESCR particularly provides thus:

‘Everyone has the right to a standard of living, adequate for the health and well-being

of himself and of his family, including food, clothing, and housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.’44

It is noteworthy that:

38 Lauren Ploch Blanchard, Conflict in South Sudan and the Challenges Ahead Congressional Research Service (22 Sept

2016) Available at <https://fas.org/sgp/crs/row/R43344.pdf>

39 Zifcak, ‘What happened to the International Community? 53

40 Blanchard, ‘Conflict in South Sudan and the Challenges Ahead’ (2016), 3

41 UNMISS, Flash Human Rights Report on the Escalation of Fighting in Greater Upper Nile April/May 2015, (29 June 2015) 6

42 UN Universal Declaration of Human Rights Adopted 10 Dec 1948

43 United Nations Human Rights, Office of the High Commissioner, International Covenant on Economic, Social and Cultural Rights (ICESCR) Art 11 (1) adopted 16 December 1966 entry into force 3 January 1976 Available at:

<https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx>

44 ibid Art 26

‘ICESCR,45 unlike ICCPR,46 contain goals that are to be achieved progressively It has been argued that, while access to food, health services and quality education are at the top of any list of development goals, to speak of them as rights it turns the citizens

of developing countries into object of development rather than subjects in control of their own destiny.”47

Further, the author added, there is a general perception that, violation of ICESCR rights are treated far less seriously than its twin sister ICCPR rights by state and non-state actors, when they provoke expressions of horror and outrage In this comparison, it is clear that the denial

of civil and political rights is considered to be a ‘violation’, while the denial of economic, social and cultural rights is generally viewed as a form of ‘injustice’ as opposed to human rights violation.48 In the context of South Sudan conflict, the argument would be that the ICESCR would not be viewed as human rights violations as noted above, but as a mere injustice The reason why the infringement of ICESCR is constructed as a mere injustice in South Sudan was perhaps because of what is seen practically threatening the daily survival of the people in the country is what the majority perceives as human rights For example, the killing, rape, detention incommunicado, disappearance, arbitrary arrests, and imprisonment are some of the visible practices undertaken by the state that convinced the local population to believe the existence of human rights violations in the country, while ICESCR rights are seen as a tool of coercion by the government, they arguably do not have an immediate physical effect on the people so that they recognise them as human rights Given the majority in the country’s lack

of knowledge about human rights, their point could be right Asbjorn Eide explained that, civil and political rights were considered to be ‘absolute’ and immediate, while economic, social and cultural rights were deemed programmatic, which means they could be realised gradually, and therefore not a matter of rights He added that ICCPR rights are justiciable in the sense that they could be easily applied by courts and similar judicial bodies, whereas economic, social and cultural rights are considered to be more of a political nature.49 In this sense, the research considers that, the comparison and the application of the two instruments in South Sudan convinced the researcher to conclude that although the two international instruments are indivisible and inalienable rights, the violation of ICCPR has been seen as much more visible in South Sudan during the conflict than the ICESCR This could be because of the nature of the civil war and the experiences that the civilians have endured throughout the conflict since

2013.This comparison should not be seen as a justification for anyone to violate ICESCR while respecting the ICCPR

It is, however, important to note that economic, cultural and social rights are internationally recognised inalienable rights that must be respected and protected by any government seeking

legitimacy Corruption, lack of a proper health system, education, and the use of public money

to buy weapons for ethnic militia by the ruling government, can only give rise to serious human rights violations Therefore, non-compliance with the obligations enshrined in both instruments in any context should be treated equally as a violation of human rights

Today, the intention of human rights is to protect people against abuse by those who are powerful or who hold a political position in a specific country In some countries abuse of power leads to financial corruption, which may affect the country’s social and economic development Since the declaration of the right to development by the UN General Assembly, one of the attributes is its focus on accountability It has been suggested that there is a need for more critical approaches to the integration of the concept of human rights into development work.50 Any chance of peace and sustainable development in South Sudan requires a complete respect for human rights and a willingness to implement all the international human rights instruments indivisibly Otherwise, implementing ICCPR without ICESCR will only lead to the rise of more political and economic instability Therefore, respect for some rights cannot be achieved in the absence of respect for the other rights.51 Therefore, abuse of any rights under ICCPR and ICESCR, as well as the right to development would need

to be considered as serious matters by the relevant agencies to human rights

The Vienna Declaration and Programme of Action52 considered that any type of abuse relating

to the right to development was serious The declaration reaffirmed the right to development

‘as a universal and inalienable right and an integral part of fundamental human rights’ On a positive note, Osiatynski added that there is a strong relation between the human rights movement and the concept of development, stating that the efforts of the UN in the field of human rights have contributed to the stability of social and economic development.53 This can

be translated as suggesting that where there is security, economic, and social stability there is

a chance of achieving peace and sustainable development through human rights observance

in those countries experiencing political and economic struggle

In response to the global pressure placed on the government of South Sudan to end the conflict

in the country, the opposition and the government of South Sudan, as well as the other political groups, eventually agreed on a negotiation of peace under the auspices of IGAD supported by the AU and UN Security Council, as well as the International Partners SPLM, the ruling party in South Sudan, is divided into three major groups namely: SPLM in Government (SPLM IG), SPLM

In Opposition (SPLM IO), and SPLM-Former Detainees (SPLM FD) This division was caused by the political struggle among the leadership of the party In this division, it can be seen that SPLM is the major unifying factor for the people of South Sudan, so its unification can play a significant role in the peace process In addition to the call for unifying the ruling party, the groups under the auspices of IGAD in the Arusha Tanzania Summit agreed on leadership and

50 Philip Alston and Mary Robinson, Human Rights and Development: Towards Mutual Reinforcement (Oxford University Press,

organisational arrangements, as well as a process of reconciliation and healing.54 The fundamental point of the summit was to agree on the unification of the party, as well as opening doors for rebuilding the country and bring lasting peace to the people of South Sudan

As mentioned above, the division among the ruling party SPLM was caused by a power struggle which led to civil conflict in the country With the limited literature on human rights in South Sudan, this research suggests that lack of respect for human rights has not contributed to the division within the SPLM party; however, the division among the SPLM leaders has contributed

to the ongoing violation of the ICCPR and ICESCR in South Sudan

11 The Causes of War and Human Rights Abuse in South Sudan

The conflict in South Sudan has very complicated origins involving political power struggles, human rights abuse of minority rights, and discrimination, including gender-based discrimination in employment In December 2013, a power struggle between the principal leaders of the ruling SPLM party in South Sudan erupted into armed conflict Former Vice-President Riek Machar accused the President of acting unilaterally and dictatorially in the leadership of the country, while the President accused Machar and his allies of plotting a coup against his government This accusation resulted in a military confrontation on 15 December, where hundreds of civilians were killed or injured.55 For the following days and months, the conflict spread throughout the country resulting in the gross violation of human rights

In many parts of the world where minority groups exist, there are often political tensions and human rights abuses, especially in many developing countries that have undemocratic governments This also relates to the ethnic and political tensions in South Sudan The marginalisation of the minority and the denial of basic human rights have been prevalent among the South Sudanese for many years before and after independence, and this situation has caused the continuing civil conflict in the Republic of South Sudan Article 16 (1,2,3 and 4)

of South Sudan Transitional Constitution provide women the right to be treated equality with men in all public affairs or other life opportunity including the right to own property and Article

33 provides that “Ethnic and cultural communities shall have the right to freely enjoy and develop their particular cultures Members of such communities shall have the right to practice their beliefs, use their languages, observe their religions and raise their children within the context of their respective cultures and customs in accordance with this Constitution and the law.’’56

Despite the transitional constitution of the country offering protection to the minority’s groups, the increasing political exclusion and unfair treatment of minorities such as women and small ethnic groups continue to create tension and power struggle in South Sudan Although the transitional constitution requires 25% of female participation in the legislative and executive branches of government, yet they are still marginalised in many areas such as

54 See the Arusha Re-unification dialogue summit

<https://ucdpged.uu.se/peaceagreements/fulltext/SSD%20150121%20Agreement%20on%20the%20Reunification%20of

%20the%20SPLM.pdf>

55 Zifcak, ‘What happened to the international community? 53–4

56 South Sudan Transitional Constitution 2011 Art 16(1,2,3 and 4)

Judiciary, local government, and traditional leaders.57 Some observers believe traditional and cultural factors has limited women participation in many governments key position In the same vein, many ethnic groups are underrepresented in the government jobs and that inequality caused by siding minority from employment opportunities has also contributed into the ethnic tension.58 The denial of jobs opportunities for the minorities including high political positions may represent the violation of the right to work Culturally, most South Sudanese families prefers to send boys to school and denied girls from attending school and this could also be a violation of the right to education So, marginalisation in this context refers to the denial of certain rights for a certain group of people In emerging and multi ethnic nations such

as South Sudan, large portions of the population are in some points excluded from politics or access to some basic human rights based on their ethnicity, age, disability, gender or sexual orientation

Of course, the 2013 conflict in South Sudan was originally a political struggle between the two rival leaders within the South Sudan ruling party SPLM/A, later the conflict took an ethnic dimension which led to the killing along the ethnic lines in particular between Dinka and Nuer However, when the two major ethnic tribe descended into conflict, the minorities ethnic groups are forced either to join the government or the rebels to avoid any intimidation In South Sudan, there are 64 tribes and, in this number, there are majority and minority In the simple sense, sidelining the minority groups from access to basic human rights or excluding them from government services by the dominant group will without exception lead to power struggle, ethnic tension possibly to the civil war Equal right and fair treatment of the minority groups can only be realised through democratic governments Virgil Wiebe added that ‘only through democracy all human rights are truly guaranteed 59 So, to address the marginalisation

of minority groups, South Sudan government needs to develop policies that meet the needs of its citizens base on democratic values to avoid any future civil conflict

It is without doubt that the potential for civil conflict (war) occurs from the gross, systematic and persistence abuse of minority rights.60 In the resolution 47/135 adopted by the UN General Assembly on 18 December 1992, it was recognised that the ‘promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute

to the political and social stability of the states in which the minority live.’61 In general terms, this resolution suggests that the continued abuse of the above-mentioned rights by the dominant group in a country could lead to the political instability of the state or civil conflict The situation described in the resolution doesnot differ greatly from the current cause of conflict in South Sudan During the 22 years of civil war between the Republic of Sudan and the Southern Sudan rebel group, the SPLM/A, there were many tensions among the factions within

57 US Department of State, 2018 Country Reports on Human Rights Practices: South Sudan (2018) Also available at

>https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/south-sudan/<

58 IBID

59 Wiebe, ‘The Prevention of Civil War …419

60 Wiebe, ‘The prevention of civil war ’ 410

61 See the UN Economic and Social Council, ‘Commentary of the working group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ (30 May-3 June 2005) GA Res 47/135

the movement, which included treatment and exclusion of the minority from the movement’s leadership However, it was well managed by its leader Dr John Garang It is also believed that during the movement’s final push for independence from Sudan there were tensions between South Sudan’s two largest ethnic groups, the Dinka and the Nuer, which were set aside without being resolved in order to focus on what was believed to be the ultimate price for the future generation of South Sudan: independence from the Republic of Sudan.62

According to Alex de Waal, an expert from the Council on Foreign Relations, ‘The reason things turned from a political crisis to a war was not because of ethnic divisions, but because the army was not a professionalized, institutionalized army, rather it was a collection of militias.’63 De Waal’s comments on the causes of the conflict in South Sudan might be accurate, because if one observes the national army of South Sudan, the members are all attached and loyal to their ethnic leader This means the country has no national army and the current soldiers are

a bunch of militias loyal to their ethnic commanders (ethnically-based armed units)

While there were no known reports filed regarding discrimination against minority groups and women, it is widely believed that discrimination was practised in the areas of employment and positions of political leadership.64 It is true that Dinka and Nuer occupied most of the leadership positions within the national government while the minority groups in the country mostly occupied the public service and most of the non-government organisation (NGO) jobs The most vulnerable group in the cycle of civil conflict in South Sudan are the disabled In public buildings and other places of employment in South Sudan, there is no disabled access to buildings, no disabled parking areas, and no employment opportunities for the disabled person This reflects a complete disregard for the rights of disabled people in South Sudan government policies

Among the problems that have contributed to the ethnic conflict in South Sudan are the clashes between the Nuer Lou, Dinka and the Murle in Jonglei State of South Sudan The conflict between the three main rival tribes always intensifies during the dry season and no solution has been offered, leading some analysts to conclude that the government might have

a hand in the conflict, which includes devastating attacks and counter attacks that target women and children, including in villages, rather than just cattle camps.65 The Murle claim that

no one from the country’s leadership supports their case, as both Dinka and Nuer keep attacking them and there is no response from the national government It appears that the national government of South Sudan has failed in its responsibility (obligation) to protect its own citizens, particularly minority groups such as the Murle The conditions leading to the

62 Vox , ‘The conflict in South Sudan, explained’ (Updated 9 Jan 2017) Available at

political mobilisation of communal groups include unequal treatment by dominant groups and conflict over land for cattle grazing Discrimination and competition for power are the drivers behind rebellions in South Sudan Horowitz (1985) (in Denny and Walter 2014) also added that

‘groups are more likely to rebel if they had been actively discriminated against by the state Discrimination could be the result of past colonial policies that have become entrenched or because a dominant ethnic group consolidated its power and instituted ethnically biased policies to maintain its grip on control.’66 This condition is similar to the current situation in South Sudan One ethnic group dominates political positions, discriminating against the minority for the positions that relate to decision-making in the country, so as to hold onto power for a generation.67

Some of the most significant human rights violations uncovered in this research include conflict-related, extrajudicial killing, abuse, mass forced disappearance, ethnically based targeted killing, inhuman treatment of civilians such as arbitrary arrest and detention, recruitment of child soldiers, and widespread sexual violence Human rights abuse also includes torture, intimidation and unlawful detention of innocent civilians; harassment, violence against journalists and civil society organisations Human rights violation also extends

to restriction on freedoms, such as the freedom of speech, freedom of the press, and freedom

of association Furthermore, human rights violations include rapes, the destruction of property, burning of villages, looting and revenge attacks on civilians who belong to particular ethnic groups

Modern wars within countries have a significant impact on civilians’ lives, as described above; they destroy homes and agricultural systems, pollute water, land and air, and kill or injure old people, women, children and parents Wars also contribute to unacceptable behaviours such

as sexual violence and the violation of many rights through torture, imprisonment, brutality, starvation, trauma and disease.68 The government’s offensive campaign against civilians who they suspected indicates that they are responsible for most of the atrocities, which have resulted in displacement and food insecurity; while the opposition forces also committed serious human rights abuse against civilians from the beginning of the conflict in the capital Juba More of those human rights violation and abuse will be explained in detail in the following chapters to include the mutual relationship between human rights, peace and sustainable development in relation to South Sudan

12 Conclusion and Thesis Overview

Human rights issues have been a concern for many years in developing countries In Africa, the African Charter on Human and Peoples’ Rights provides a distinctive regional perspective on

human rights; the charter uses the concept of ubuntu (community) and avoids the

winner-takes-all attitude of adversarial adjudication The charter favours the community over the individual and emphasises economic and social right while striving to incorporate international

66 Elaine K Denny and Barbara F Walter, ‘Ethnicity and civil war’ (2014) 51(2) Journal of Peace Research 199–212

67 US Department of State, 2018 Country Reports on Human Rights Practices: South Sudan (2018) Also available

At<https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/south-sudan/<

68 Hellen Ware, The No-Nonsense Guide to Conflict and Peace (New Internationalist, 2006) 14–15

normative standards.69 Reforming human rights in developing countries such as South Sudan requires consideration of political culture and social history to have a better understanding of how human rights could be implemented successfully in the world’s newest nation Generally, regional institutions are the best places to obtain useful information on variations of political culture, important features of social history, and the institutional capacity of a government to make human rights reform, unlike the UN and other international bodies.70

Chapter 1 is an introductory chapter, presenting the outline of the thesis, including the hypothesis, research questions, the scope, research findings, research objectives and the methodology applied in this research It also details a brief historical account of the conflict in South Sudan including the causes of civil conflict that started directly after its independence from Sudan

Chapter 2 discusses the historical account of human rights evolution The chapter details the evolution of the concept of human rights from its earliest period to the 1948 Universal Declaration of Human Rights, which inspired the rise of regional human rights systems such as the African Charter on human and peoples’ rights including the right to development

Chapter 3 documents the genesis, the causes of conflict in South Sudan, the gross violation of human rights perpetuated against civilians and the breaches of ceasefires and agreements brokered by the IGAD Further, it presents the role played by oil companies in motivating and financing ongoing civil war in South Sudan This chapter draws upon several reports by human rights agencies, the UN, UNMISS and civil society organisations The chapter also includes the strategies applied by IGAD to end conflict in South Sudan including sanctions and arms embargoes

Chapter 4 opens with an introduction and discussion on the negotiation process to end civil war in South Sudan through the IGAD, AU, UN, EU and Troika, including the government of South Sudan and the opposition groups This chapter details the role played by the UN Security Council framework in targeting sanctions on the South Sudan government and individuals within the government and the opposition through UN Resolution 2206 (2015), which was designed to force both parties to reach a peace deal The chapter then examines the deployment of the Regional Protection Forces (RPF) to help protect civilians in UN compounds, the withdrawal of financial support from the government of South Sudan by the international community, in the hope of providing answers for the failed measures deployed by IGAD to bring peace to South Sudan This includes examining role played by enforcement mechanisms

to foster peace and sustainable development in South Sudan

The thesis closes with a description of the key lessons observed from the conflict, along with the challenges and possibilities that need to be addressed in order to sustain peace in South Sudan Finally, the paper covers the feedback from the panel, including the recommendations

to better resolve the problems and prevent future conflict in the world’s newest nation

69 Helen M Stacy, Human Rights For The 21st Century: Sovereignty Civil Society Culture (Stanford University Press, 2009)

149

70 ibid 150–1.

Chapter Two: International and African Human Rights Systems

13 Historical background of Human Rights

The roots of the protection of the rights of human beings can be traced back to, amongst other cultural protections for human dignity, ancient Babylonian laws.71 During his reign as the King

of Babylon, Hammurabi issued a set of laws designed to protect individuals and to maintain public order in his Kingdom.72 The laws were called ‘the Hammurabi Code’ (c 1770 before common era) The laws appeared to offer protection of citizens, provide fairness in trials, and required that all charges against the defendant must be proved at any trial; otherwise, if a person accused another of homicide but could not provide evidence against him, the accuser would be killed.73 The Hammurabi Code constitutes what was seen as fair at the time to protect the Mesopotamian people against any injustice To ensure fairness, the judges administering the Hammurabi Codes were placed in groups of three and six, based on the matter or case presented against an individual Local courts also dealt with property, while offences relating

to loss of life would only be decided by the king or members of the royal family.74 During his reign, King Hammurabi understood clearly the importance of law and the protection of the people in his kingdom The harsh punishment and strict system and interpretation of law and order were designed to discourage individuals from committing crimes, and to protect the citizens from being victimised

Human rights history can also be found in the ancient beliefs and philosophical concepts of

‘natural law and ‘natural rights’ Natural law was not so much concerned with an individual’s rights but was more focused on wider social responsibility; it was segmented as a means for controlling moral conduct, enabling people to comply with a natural order of what was good

as a basis for a just society.75 Natural rights were concerned with the conduct that was needed

to maintain the fair and just society, and focus on the place of individual human beings in relation to the state Natural rights included freedom from arbitrary power and freedom of expression, movement and property ownership, civil participation, including being treated fairly regardless of race, gender and religion, as well as others.76 Based on the statement above, the idea of natural law can be viewed as putting down the foundation for human rights development

Observing religion relative to human rights, it seems that all religions of the contemporary world have a humanist perspective that support human rights despite differences in their content Natural law is not something that is new to the Christian faith (followers), as it is strongly embedded in the Bible, but it might not be in the way most people think In the book

of Romans, 2: 14-15: Paul (St Paul) spoke of natural law, stating that ‘For when gentiles who

71 Kathryn E Slanski, ‘The Law of Hammurabi and its audience’ (2012) 24 Yale Journal of Law and Humanities 97

72 Hammurabi Biography, 9 Oct 2014 Available at <https://www.biography.com/political-figure/hammurabi

73 Slanski, ‘The Law of Hammurabi and its Audience’, 8–9

74 ibid 3

75 Adam McBeth, Justin Nolan, Simon Rice, The International Law of Human Rights (Oxford University Press, 2011) 38

76 ibid.

do not have the Law do instinctively the things of the Law, these, not having the Law, are a law

to themselves, in that they show the work of the Law written in their hearts, their conscience bearing witness and their thoughts alternatively accusing or else defending them.’ Also, in the book of Romans, God created his laws evident in the hearts of all human beings, but because

we live in a sinful world, we are incapable of completely knowing what God’s law is, and we certainly cannot follow it (Romans 7:14-25) Although there exists the belief that God gave human beings his revealed laws through the prophets and scribes to explain how to live according to the natural law, the exact scope of the biblical rights and the extent to which they can be enforced remain largely controversial

While the origins of human rights can be traced back to various religious codes through the ages, if the point of departure is that all human beings have natural rights, then the history dates back to at least the days of the ancient Greek city states and the thinking of the Stoics.77

In approximately 400 BCE, Sophist Antiphon argued that all people, Ellines and Barbars, the powerful and the ordinary, are equal in nature and thus have a common natural interest.78

Furthermore, Antiphon added that discrimination among peoples emerged from man-made laws not from nature; in nature all people are equal in all relations.79 Some historians and scholars in the area of human rights have tried to trace the rudimentary concept of human rights back to natural law and to the Roman law; however, it appears that the origin of the modern concept of human rights can be found in the English, American and French experiences

of the concept

a The English Experience

‘The Magna Carta’ (1215), also known as ‘the Great Charter’, consists of 63 chapters which limit the royal powers, clarify feudal obligations and protect rights, including those of the Church, stating, ‘We will, and firmly order that the English Church be free’.80 It is seen as one

of the origins of the liberties of the English people The Charter also recounts how King John granted God the freedom of the Church, as well as ‘the freedom of elections which is deemed

to be the English Church's very greatest want,’ in perpetuity.81 The Charter added that John

‘granted to all the freemen of our kingdom, for us and our heirs in perpetuity.’82

The rule of King John (1199-1216) was marked by conflict and misunderstanding with the Barons and the Church King John was expelled by the Pope in 1209, and in 1213 a group of rebel barons decided to meet Archbishop Stephen Langton and the papal legate to present their differences against King John.83 The conflict intensified and in May 1215 the rebel barons withdrew their oath of allegiance to the king, and captured London forcing the king to agree

77 Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran and David Harris, International Human Rights Law (Oxford

University Press, 2nd edn, 2014) 16

78 Anonymous, ‘Human rights in the Horn of Africa’ (2001) 16 Indiana International and Comparative Law Review, 543

79 ibid

80 Russell Fowler, ‘The 800th Anniversary of Magna Carta: A Time for Lawyers to Remember’ (2014) 50-NOV Tenn B.J, 23

81 Michael Steenson, ‘Roots of Constitutional Government Magna Carta at 800’ (2015) 72 (1) Bench and Bar of Minnesota,

18

82 ibid

83 Geoffrey Richards, ‘Magna Carta: The Bill of Rights it ain’t, but ’ (2015) June 294 N.J Law 21.

to the baron’s demands at Runnymede on 15 June 1215 Four days later the Barons renewed their allegiance to the king.84 It seems there was a struggle in administration during King John’s reign, mixed with an abuse of power which led the barons to renounce their commitment to the King and demand an agreement, which was later called the Magna Carta, to be established between the baron and the King Therefore, although the Magna Carta is not a complete document of all the civil rights and liberties as we know them today, it could be described as the genesis of the constitutional rule of law which changed the focus from the power of the state to human rights, since it manifested the principles of liberty, justice and equality The Magna Carta document signed by King John of England to pacify the rebellious English barons in 1215 was in response to strong opposition to coercive taxation, unprecedented feudal fees to the crown, abuse of power, unlawful confiscation of land, illegal imprisonment and access to swift judgement.85 This action resulted to the English barons’ protest and demands that King John grant them some concessions regarding their rights One of the most influential provisionsof the Magna Carta has been the ‘law of the land’ clause of Chapter 29, which states that ‘No free man shall be arrested or imprisoned, or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.’86

Moreover, the Magna Carta introduces the concept of the jury trial in Clause 39, which granted protection against arbitrary arrest and unlawful imprisonment.87 In addition to the clause above, the Magna Carta's most memorable legacy is conceivably the idea that ‘No one, no matter how powerful, is above the law.’88 The Great Charter represents an agreement between the King and the barons; however, the Charter set-forth the fundamental point that the power

of the king was not absolute.89 There is no doubt the Great Charter provided the foundation of the concept of constitutional government and individual liberties, and that it was a revolutionary declaration not only of the privileges of the powerful, but also the political, judicial and commercial rights of Englishmen of every rank.90 With regards to its influence in the history of the concept of ‘Human Rights’, The Magna Carta remains a fundamental statement for the rule of law In addition, it stands for the principles of due process and a fair trial by jury.91

In general, the Great Charter serves as the great tribute to the English people, who have preserved it and nurtured it for hundreds of years to serve as a beacon for humankind Although the collection of civil rights and liberties in the ‘the Great Charter’ was limited, its impact was very much insurrectionary as it led to a clear understanding and recognition that

84 ibid

85 Mary Ziegler, ‘The Conservative Magna Carta’, (2016) 94 North Carolina Law Review 1653 1654–5

86 Frederick Mark Gedicks, ‘An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism,

and the Fifth (2009) 58 Emory Law Journal, 585 597

87 Fowler, ‘The 800th Anniversary of Magna Carta, 23

88 Jonathan O Steen, ‘Celebrating Magna Carta’s Enduring Legacy for law day’, Tennessee Bar Journal (2015) 51:3

89 Richards, ‘Magna Carta: The Bill of Rights it Ain’t, But , 21

90 Fowler, ‘The 800th Anniversary of Magna Carta, 23

91 Steven M Richmond, ‘Magna Carta: its essence and effect on international law’ (2005) 294 New Jersey Lawyer, the Magazine 9.

individuals have a certain right and can claim those rights against the authority or the state, and that the state is expected to respect those rights and not to interfere with such rights and liberties of individuals

b The American Experience

In order to discuss the American and the French experience of the concept of human rights, it

is pertinent to extensively examine the similarities and the differences between the French Declaration and the American Bill of Rights It appears that both texts place emphasis on

‘freedom from’ and the rights of the criminally accused The American Bill of Rights is solely oriented towards the protection of individual rights, while the French Declaration makes meaningful reference to ‘the common good.’92

The concept of ‘Fundamental rights of man’ can be found in the declarations and constitutional instruments of many American states For example, the ‘Declaration of Independence’ of the thirteen States of America in 1776 (The Virginia Declaration, 1776) and the United States Constitution, 1787, with amendments in 1789, 1791 and 1868, specified a number of rights.93

The Virginia Declaration of Rights section 1 affirmed that all men are by nature equally free and independent with certain inherent rights, one of which is, that when they join the society they cannot be deprived of their descendants (in other words, their children cannot be taken away from them); another is the enjoyment of life and liberty, with the means of acquiring and possessing property, pursuing and obtaining happiness and safety.94 Around them same time, The French Declaration of the Rights of Man and Citizen of 1789 played an influential role which led other European states to include standards in their laws for the protection of human rights.95 For example, in the constitution of Sweden in 1809, one of the articles states that:

‘The King … shall not deprive anyone nor cause anyone to be deprived of life, honour, personal liberty, or well-being unless he has been legally tried and condemned; he shall not deprive anyone nor permit anyone to be deprived of any real or personal property without trial and judgment in accordance with the provisions of Swedish law; he shall not disturb or cause to be disturbed the peace of any person in his home; he shall not banish any person from one place to another; he shall not constrain nor cause to be constrained the conscience of any person, but shall protect every-one in the free exercise of his religion.’96

Similar civil liberties can be found in the Constitution of Spain in 1814, Norway 1814 and Belgium 1831; Bills of rights were also incorporated into the constitutions of Liberia in 1847,

92 Rett R Ludwikowski, ‘Fundamental Constitutional Rights in the New Constitutions of Eastern and Central Europe’ (1995)

3 Cardozo Journal of International and Comparative Law 73 Art 94 of Norwegian Constitution and Art 7 (14) of Belgium

Constitution

93 Andrew T Bodoh, ‘The road to “Due Process”: Evolving Constitutional Language 1776 to 1789.’ (2018) 40 Thomas Jefferson Law Review 103

94 Steven G Calabresi, ‘On Liberty, Equality, and the Constitution: A Review of Richard A Epstein’s the Classical Liberal

Constitution’ (2014) 8 NYU Journal of Law & Liberty 839

95 Ludwikowski, ‘Fundamental Constitutional Rights in the New Constitutions ' 73

96 ibid 84

the Kingdom of Sardinia in 1848, Denmark in 1849, Prussia in 1850 and Switzerland in 1874; all

of which made provisions for the fundamental rights of man in their laws or constitutions.97

c The French Experience

The year 1989 marked a significant anniversary of the French Revolution and the Declaration

of the Rights of Man and of the Citizen, the Revolution’s most precious, and perhaps most enduring, product.98 The French Declaration, with its influence in Europe and perhaps in many countries around the world, stated that ‘any society in which rights are not guaranteed, or in which the separation of powers is not defined, has no constitution’.99

Although a number of concepts in human rights law have their origin in the French and American revolutions, the rights are by nature inherent, universal and inalienable The adoption of the French Declaration of Man and Citizen on 27 August 1789, almost two and half years before the ratification of the American Bill of Rights on 15 December 1791, often puzzles researchers looking for the origin of constitutional bills of rights.100 According to the Declaration, true happiness can be found in individual liberty, which is the product of the

‘natural, inalienable and sacred rights of man’.101 Article 2 of the Universal Declaration of Human rights102 states that ‘the aim of all political associations is the preservation of the natural and imprescriptible rights of man’ These rights are liberty, property, security, and resistance to oppression Article 4 adds that ‘liberty consists of the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.’103

The French Declaration more notably attached equality to liberty and stressed the importance

of this conjunction, more so than did the American Declaration of Independence or the Virginia Bill of Rights.104 In regards to the comparison of power control, ‘The French Declaration of the Rights of Man and of the Citizen aim at guiding the legislator towards realizing the content of liberty, whereas the American declaratory texts aim at limiting the legislative power.’ 105 In the United States, the constitutional control of the Supreme Court is a central element of the constitutional equilibrium, whereas the judiciary is ‘the least dangerous branch’ in a conception of state power organised on the basis of checks and balances.106 With the contrast above, it appears that the English, French and American experiences inspired the constitutions that have bills of rights, apart from Australia

97 ibid 73.

98 Louis Henkin, ‘Revolutions and Constitutions’, (1989) 49 Louisiana Law Review 1023

99 ibid

100 Ludwikowski, ‘Fundamental Constitutional Rights’, 73

101 Scott Davidson, Human Rights (Open University Press, 1993) 5

102 J-J F Le Barbier, Declaration of the Rights of Man and of the Citizen (1789)

103 ibid Art 4

104 Ludwikowski, ‘Fundamental Constitutional Rights, 73

105 Ioanna Tourkochoriti, ‘The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the USA’,

(2012)20(3) William and Mary Bill of Rights Journal 791

106 ibid.

The French Declaration of the Rights of Man and of the Citizens and the American Declaration

of Independence have both played influential roles in the evolution of fundamental human rights Among the central principles enshrined in the French and American documents, liberty

is considered to be the most important right, while men are also declared to be free from arbitrary persecution and free to communicate their opinions, provided they respect the same liberty in others.107 Although the French Declaration considers that liberty is the most important right, freedom is also mentioned as an important right for every free-man to enjoy responsibly In article IV of the French Declaration, ‘Liberty consists of doing anything which does not harm others: thus, the exercise of the natural rights of each man has only those borders which assure other members of the society the enjoyment of these same rights These borders can be determined only by the law.’108 Likewise, the Declaration of the Rights of Man and of the Citizen argued that an individual's rights can be limited when the exercise of those rights encroaches upon another's right to enjoy his rights

The French law contemplates limitations on freedom of speech because it is simply one among several rights proclaimed in the 1789 Declaration, and the Declaration precisely provides that any right may be restricted when it prevents the enjoyment of one or more other rights.109 The central ideas of free communication and opinion, as well as enjoyment of freedom responsibly, can be found in Article XI of the Declaration of the Rights of Man and of the Citizen, which provides that ‘the free communication of ideas and opinions is one of the most precious of the rights of man Every citizen may, accordingly, speak, write, and print with freedom, but shall

be responsible for such abuses of this freedom as shall be defined by law.’110 In this regard the French laws comply with the European Convention on Human Rights (ECHR), which is binding

on all European nations The ECHR allows member states to limit the exercise of some of the rights and freedoms it contains, with its primary aim being to protect rights, while recognising that societies sometimes require rights and freedoms to be balanced against other considerations.111 In respect to the ECHR, France has limited free speech in order to maintain diverse values and public order

The dream of the creation of international organisation began on 12 June 1941 at St James’ Palace in London with representatives mostly from European nations and allies, including

Canada, Australia, New Zealand and the Union of South Africa, who all signed An Inter-Allied Declaration (The Declaration of St James' Palace) The reason for the declaration was to search

for the noble new strategies to address the extreme abuse of human rights in war-torn Europe during World War II.112 In 1941, President Roosevelt of the United States and Prime Minister Churchill of Britain issued a joint declaration destined to become known as the Atlantic Charter,

107 Ludwikowski, ‘Fundamental Constitutional Rights, 73

108 See Article IV, ‘Liberty’, J-J F Le Barbier, ‘Declaration of Rights of Man ’

109 Russell L Weavera, Nicolas Delpierrea, Laurence Boissier, ‘Holocaust denial and governmentally declared “truth”:

French and American Perspectives’, (2009)41 Texas Tech Law Review 495

110 See Article XI, J-J F Le Barbier, ‘Declaration of Rights of Man ’

111 Weaver et al ‘Holocaust denial and governmentally declared ‘truth‘ 495

112 United Nations 1941 ’The Declaration of St James' Palace.’ Available at nations-charter/1941-declaration-st-james-palace/index.html>

<http://www.un.org/en/sections/history-united-which aimed for a peaceful future for the world.113 In 1942, representatives from 26 countries that fought against the Axis, decided to commit their support by signing the Declaration of the United Nations This significant accord pledged the signatory governments to the maximum war effort and bound them against making a separate peace However, before the declaration

of the 26 countries, President Roosevelt, Prime Minister Churchill, Maxim Litvinov of the USSR, and T V Soong of China, signed a short document which later came to be known as the United Nations Declaration.114 Apart from the declarations, there were also a number of meetings and conferences held mostly by the superpower nations, which included the United States, United Kingdom and the Soviet Union, before the United Nations was declared an International Organisation In 1943, both the Moscow and Tehran Declarations were aimed at preserving peace and acknowledging that ‘the supreme responsibility rests upon us and all the United Nations to make a peace which will command the goodwill of the overwhelming mass of the peoples of the world and banish the scourge and terror of war for many generations.’115 The conference at Dumbarton Oaks in 1944 and Yalta in 1945 also marked the taking of a significant first step to carry out paragraph 4 of the Moscow Declaration of 1943, which acknowledged the need for a post-war international organisation to succeed the League of Nations.116 The San Francisco Conference of 1945 consisted of 46 nations that had been at war with Germany and Japan, which all subscribed to the United Nations declaration.117 In this historic foundation

of the UN, the signatory nations seemed to acknowledge the significance of preserving human rights and justice in their own homeland, as well as the rest of the world

14 Human Rights under the UN Charter

The United Nations Charter constitutes a significant achievement in the direction of faith and respect for the concept of human rights The modern international human rights law has its origins at the end of World War II, when the horrific atrocities perpetrated by the Nazis against the Jewish people were universally condemned and led directly to an international agreement that the protection of human rights should be considered one of the principal purposes of the United Nations.118 In events leading up to the San Francisco Conference, delegates from some

of the states with less influence were in favour of embedding human rights into the structure

of the UN.119 According to Professor John P Humphrey, the first director of the United Nations Division on Human Rights, ‘human rights provisions run like a golden thread throughout the Charter’.120 Based on the historic events of the build-up of the UN, human rights have occupied

a landmark in any history of the UN The preamble to the UN Charter containsa number of

<http://www.un.org/en/sections/history-united-118 Ann I Park, ‘Human rights and basic needs: using international human rights norms to inform constitutional

interpretation’ (1987) 34 UCLA L Rev, 1195

119 Seth Mohney, ‘The great power origins of human rights’ (2014) 35 Michigan Journal of International Law, 827

120 Bert B Lockwood, Jr, ‘The United Nations Charter and United States Civil Rights Litigation: 1946, 1955

provisions that demonstrate strong support for the promotion of human rights and fundamental freedoms: ‘We the people of the United Nations determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights

of men and women and of nations large or small and in the Articles 1, 13(b), 55, 56, 62(2), 68, and Article 76 (c).’121 Although the UN Charter does not contain any specific charter on human rights, the international community attempt to fill them by drawing up the ‘Universal Declaration of Human Rights and Fundamental freedoms’ in 1948

a Universal Declaration of Human Rights

The adoption of the ‘Genocide Convention’ on 9 December 1948 and the ratification of the UDHR on 10 December 1948 were both calls to remind all humanity of how the background of war and mass atrocities perpetrated during World War II played a significant role leading up to the creation of UDHR and the mobilisation of the human rights framework in post-war situations.122 The first document to use ‘human rights’ as a concept can be found in the United Nations Charter adopted during the San Francisco Conference in 1945 Despite the superpowers’ unshakeable position in the conference, the Charter was considered to be an improvement on the Dumbarton Oaks proposals The UN Charter Preamble aims to achieve

‘international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.123

Previously, the Dumbarton Oaks delegates had added a provision which stated that ‘the United Nations would not involve itself in the internal affairs of member states that did not involve a direct threat to world peace,’124 consciously restricting the extent to which the UN would be responsible for human rights violations within each member state

When the UN instigators met at the San Francisco Conference to prepare the UN Charter, Latin American states were unhappy with the Dumbarton Oaks proposals, which led their delegates

to present 150 draft solutions addressing the superpowers’ dominance, economic and social issues, and human rights, among other issues.125 More importantly, they felt the Charter contained some provision which are unclear and are of a general nature for the promotion and protection of human rights and fundamental freedoms

To execute the supervision of the UN Charter regarding human rights, the UN General Assembly decided to create an International Bill of Rights To achieve this ambitious dream, the General Assembly of the United Nations gave authority to the Economic and Social Council (ECOSOC) to perform studies, organise conferences and conventions, and more importantly, create human rights commissions, while the UN General Assembly was to be in charge of any topic of discussion at its sessions and possessed the power to conduct studies and issue

121 United Nations, Charter of the United Nations Available at

<https://www.un.org/en/charter-united-nations/index.html>

122 Vasuki Nesiah, ‘The specter of violence that haunts the UDHR: The turn to ethics and expertise’, (2009) 24 Maryland Journal of

International Law 135

123 Mohney, ‘The great power origin of human rights’, 827

124 Darin E.W Johnson, ‘How U.S Civil Rights leaders’ human rights agenda shaped the United Nations’ (2016–2017) 1 Howard Human &

Civil Rights Law Review, 33

125 Mohney, ‘The great power origins of human rights’ 841

recommendations concerning human rights.126 Similarly, the Security Council was responsible for determining the existence of any threat to peace and could determine necessary actions to restore international peace and security.127 Upon its creation and mandate to create a commission on human rights, ECOSOC decided to strengthen the notion of universality in drafting the Universal Declarations of Human Rights by deploying diverse membership The UN Member States involved in the process included China, Lebanon, France, Panama, Uruguay, the Philippines and Britain This geographical representation contributed to the philosophical and religious diversity in the debate concerning human rights.128

In 1945 the Commission on Human Rights was established and delegated the drafting of the International Bill of Rights to a committee, led by Eleanor Roosevelt to define human rights and fundamental freedoms described in the UN Charter.129 In its first session in 1947, the Human Rights Commission concurrently began working on both a draft declaration and a covenant This idea generated debate between member states, some believing in a non-binding declaration which would preserve national sovereignty, leaving it to states to maintain and promote human rights, while others preferred the idea of a convention that would alter one of the major purposes of the UN into law.130 Based on this, the Universal Declaration of Human Rights was adopted on 10 December 1948 by the UN General Assembly, ‘as a common standard of achievement for all people and nations of the world’.131

In this respect, the UDHR constitutes the first part of the International Bill of Rights, while the other two International Covenants, whichwere adopted in 1966, were designed to codify the two sets of rights outlined in the UDHR.132 The drafting of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) was completed and presented to the United Nations General Assembly

in 1966 It come into force in 1976,133 with Australia, the United Kingdom and four Scandinavian countries being the only original Western nations parties represented Later the General Assembly of the United Nations adopted two Optional Protocols to the ICCPR The First Optional Protocol134 allows individuals to lodge any complaint on violations against their rights

by the state, while the Second Optional Protocol135 was aimed at abolishing the death penalty

in 1989 Therefore, the Universal Declaration of Human Rights, the two International Covenants, and two Optional Protocols, as well as 2008 Optional Protocol to the ICESCR, are the five main international instruments which together form the International Bill of Rights

130 Jane Adolphe, ‘The Holy See and the Universal Declaration of Human Rights: Working Towards a Legal Anthropology of

Human Rights and the Family,’ (2006) 4 Ave Maria Law Review 343

131 Leah Levin with Cartoons by Plantu, Human Rights (UNESCO Publishing, 2009) 27–8

132 ibid

133 McBeth et al The International Law of Human Rights, 26

134 First Optional Protocol to the International Covenant on Civil and Political Rights GA Res 2200A (XXI) (16 December

1966, adopted 23 March 1976)

135 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty GA Res 44/128 (15 December 1989)

The Preamble of the UDHR states, in line with the spirit of the natural law:

Whereas the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world 136

Keeping the Preamble statement in mind, the international community vowed to strive to teach and promote respect for those rights and freedoms by developing measures that would sustain their universal and effective recognition and observance among the states that ratified the rights

b International Covenant Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is one of the major groupings

of human rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR) The two rights are included in the UDHR Although both rights were separated due

to the different views between the United States and the Soviet Union, the Unite States and its allies preferred to adopt the ICCPR as it is easier to enforce and present in liberal market economies, while the USSR and its allies chose to abide by the ICESCR, believing it represents the core of the human rights.137

In its Preamble, the ICCPR138 acknowledges that, in accordance with the UDHR, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights In reference to the ICCPR, article 2 to

21 of the UDHR deal with civil and political rights, while articles 22 to 27 of the Declaration guarantee economic, social and cultural rights, 139and Article 29 of the Declaration provides a certain limitation to those rights and freedoms, by stating that ‘everyone has duties to the community in which alone the free and full development of his personality is possible’ Paragraph 2 of Article 29 states that everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.140 It appears that the conditions stated in the article above make some of the rights described in the Declaration absolute while others are not The 53 articles of the ICCPR are divided into six parts In Part 1, Article 1 discusses the rights

of people to self-determination, stating that all people have the right to freely determine their political status and freely pursue their economic, social and cultural development, and may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligation arising out of international economic co-operation, based upon the principles

136 United Nations, Universal Declaration of Human Rights, GA Res 217A, Proclaimed by UNGA in Paris on 10 December

1948 Available at <https://www.un.org/en/universal-declaration-human-rights/index.html>

137 Peter Uvin, Human Rights and Development (Kumarian Press 2004) 10

138 UN Human Rights Committee, International Covenant on Civil and Political Rights (ICCPR) Preamble Office of the High Commissioner for Human Rights GA Res 2200A (XXI) (16 December 1966, adopted 23 March 1976) Available at

<https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

139 UN Universal Declaration of Human Rights

140 ibid.

of mutual benefit and international law The article then states that ‘in no case may people be deprived of its own means of subsistence’,141 and that State parties to the Covenant shall promote the realisation of the rights to self-determination and shall respect that right.142

Part II sets out the rights and obligations of the ‘State Parties’ to the Covenant In this regard,

it includes the obligations of each State Party to the covenant to take all the necessary steps

to incorporate the provisions of the Covenant in the domestic laws and to adopt such laws or other measures as may be necessary to give effect to the rights recognised in the present Covenant The State Parties also have an obligation to ensure equal rights of men and women

to the full enjoyment of all civil and political rights.143 Part III is more specifically about the individual’s rights and the obligations of the States Parties to the Covenant on ICCPR This includes a list of rights comprising articles 6 to 27.144

Most of the rights set out in the Covenant are not absolute rights, but are subject to limitations For example, freedom from torture is an absolute right, while other rights may be limited to times of emergency, when the life of a nation is threatened Looking at the origin of the limitations it seems that they differ from article to article It could be assumed that the rights should not subject to any restrictions, only those which are provided by law and are significant

to protect national security, public order, health, the rights and the freedoms

c International Convention on Economic, Social and Cultural Rights

The ICESCR recognises that economic, social and cultural rights are derived from the inherent

dignity of the human person and that the ‘ideal of free human beings enjoying freedom from

fear and want can only be achieved if conditions are created whereby everyone may enjoy his

economic, social and cultural rights as well as Civil and political rights.’145 ICESCR consists of 31 articles and is divided into five parts Part I deals with people’s rights to self-determination, as

it appears in Article 1 of the ICCPR Part II include articles 2 to 5 which establish the general nature of the State Parties’ obligations under the Covenant.146 Other rights concerning individuals are covered in Part III of the Covenant, articles 6–15.147 Part IV (articles 16–25) deals with international implementation and the system of supervision of the ICESCR, as well as the progressive reporting requirements imposed on states parties Part V (articles 26–31) is concerned with the regular provisions of treaties relating to ratification and entry into force and amendments.148

d Optional Protocol to the International Covenant on Civil and Political Rights

The ICCPR and the Optional Protocol are both separate instruments, but are related to one another as only the State Parties to the Covenant can become parties to the Protocol Both the Protocol and the Covenants provide individuals with the right to make petitions to the Human Rights Committee.149 The First Optional Protocol and the ICCPR were all presented for signature at the same time in 1966, and came into force on 23 March 1976.150 Although the Covenant and the Optional Protocol are related to each other, it was not automatically compulsory for all the States Parties to the Covenant Article 8 of the Optional Protocol declares that State Parties to the Covenant may become Parties to the Optional Protocol only by a separate expression of consent to be bound.151 The Protocol provides that ‘no communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol’,152 and that ‘the Committee shall consider inadmissible any communication under the present Protocol which is anonymous, or which it considers to be

an abuse of the right of submission of such communications or to be incompatible with the provisions of the Covenant’.153 On another spectrum, the Protocol acknowledges ‘the competence of the Committee to receive and consider communications from individuals who are victims of violation of any of the rights set forth in the Covenant’.154

e Second Optional Protocol to the ICCPR

The whole idea of drafting the Second Optional Protocol to the ICCPR was to seektheabolition

of the death penalty On 25 November 1981, the United Nations General Assembly decided to consider the idea of drafting the Second Optional Protocol to the ICCPR.155 Following efforts of the UN General Assembly and the Commission on Human Rights, several countries have completely abolished the death penalty and on 15 December 1989, the General Assembly of the United Nations adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights.156 The death penalty involves suffering and cruelty imposed against human dignity, as well as moral and mental suffering to the victims’ families The death penalty violates several articles of the ICCPR, including the right to life and the right not to be subjected

to cruel, inhuman or degrading treatment.157 Following the adoption of the UDHR, ICCPR and the First Optional Protocol to the ICCPR, the Second Optional Protocol to the ICCPR states clearly that ‘abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights.’ Further, the Second Optional Protocol requires that all signatories States be prohibited from using capital punishment and permits no reservations

149 Smith, International Human Rights, 48–9

150 McBeth et al The International Law of Human Rights, 259–60

151 UN Human Rights Committee, Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) GA

Res 2200A (XXI) Art 8 (16 December, adopted 23 March 1976).

152 ibid Art 1

153 ibid Art 3

154 ibid Art 1, 2 and 3

155 See United Nations General Assembly Resolution 36/59, 25 November 1981 Capital punishment Available at

<https://undocs.org/en/A/RES/36/59

156 Anthony N Bishop, ‘The Death Penalty in the United States: An International Human Rights Perspective’ (2002) 43

South Texas Law Review 1115

157 UN Office of the High Commissioner for Human Rights, ICCPR, Art, 6; UN Declaration of Human Rights, Art 5

to any of the provisions therein, thereby requiring that all ratifying nations be firmly abolitionist.158 The protocol came into force in 1991.159

Similar restrictions to the death penalty can be found in the UN Convention on the Rights of the Child, and the other regional Conventions, such as the American Convention on Human Rights, the African Charter on the Rights and Welfare of the Child, and, more significantly Protocol No 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1985).160 Also Article 6 of the Convention on Civil and Political Rights refers to the desirability of abolishing the death penalty, as it is one of the major steps towards the enjoyment of the right to life.161

f The International Military Tribunal at Nuremberg

It was the experiences of World Wars I and II which focused attention on the political and practical difficulties faced by the contemporary world, and to the creation of the International Tribunal In 1919, after the end of World War I, the Commission on the Responsibility of the Authors of War and on the Enforcement of Penalties was to establish the degree to which Axis powers violated the laws of war; determine the level of individuals’ responsibility; and draft a law for a war crimes tribunal.162 It was not until World War II that the idea of punishing war criminals took real effect, following internal debate within the Alliednations Subsequently the Allies signed the London Agreement on 8 August 1945, which led into the creation of an International Military Tribunal in Nuremburg for the trial and punishment of war criminals of the European Axis

Determining the status of German Nazi war criminals was an intrinsic ingredient of US President Roosevelt’s plan for the post-war world.163 Therefore, it was significant to identify the types of crimes committed by the Nazis during World War II in order to prosecute the crimes accordingly According to Aaron K Baltes, there were three types of crimes identified

in the Nuremburg Charter: (1) crimes against peace, (2) war crimes, and (3) crimes against humanity Further, the International Humanitarian Law has structured the concept of ‘war crimes’ and ‘crimes against humanity’, making individual criminal responsibility one of the most important legacies of the Nuremburg trials and creating a legal guide for the International Tribunal.164 From the point of view of Western lawyers and politicians, the Nuremberg trials represent a significant success in opening the eyes of the Germans to face the atrocities of World War II, and to persuade Germans that the war criminals should be prosecuted and dealt

158 Toni M Fine, ‘Moratorium 2000: An International Dialogue toward a Ban on Capital Punishment’, (1999) 30 Columbia Human Rights Law Review 421

159 Shigemitsu Dando, ‘Toward the abolition of death penalty; de facto abolition in Early Japanese history’ Indiana Law Journal, (1996)72:7

160 Russell G Murphy, Eric J Carlson, ‘“Like snow [falling] on a branch…”: International law influences on death penalty

decisions and debates in the United States’ (2009) 38 Denver Journal of International Law and Policy 115.

161 UN Office of the High Commissioner for Human Rights, ICCPR, Art 6

162 Aaron K Baltes, ‘Prosecutor v Tadic: Legitimizing the Establishment of the International Criminal Court Tribunal for the

Former Yugoslavia’ (1997) 49 Maine Law Review, 577

163 Seth Mohney, ‘The Great Power Origins of Human Rights’ (2014) 35 Michigan Journal of International Law, 827

164 Baltes, ‘Prosecutor v Tadic: Legitimizing the establishment ' 577

with properly and fairly.165 According to Smith, ‘crimes against international law are committed

by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’166

In this case, the Nuremburg Tribunals used law and legal processes to hold specific German individuals accountable for specific crimes against peace and crime against humanity justified

by the Nuremburg Charter; however, the Charter failed to explain why the Allied war criminals were not accountable for their crimes against peace and the war crimes they committed during World War II

15 UN Human Rights Institutions

a Human Rights Council

The UN Commission on Human Rights was created in 1947 as a subsidiary body of ECOSOC with the intention of drafting the Universal Declaration of Human Rights.167 Being a principal forum for international human rights debate, the UN Human Rights Commission was strongly criticised for allowing countries with poor human rights records to be members As a result, it was replaced by the Human Rights Council as a subsidiary body of the UN General Assembly in

2006.168 By General Assembly resolution 60/251, the Assembly decided to create the Human Rights Council, with mandates to protect and promote human rights Further, the Council founding resolution also sets out the principles upon which the Council must operate.169 These founding principles elevate human rights further in the UN structure through the establishment of three main Councils to cover the three areas of work of the organisation: The Security Council, which deals with international peace and security; the Economic and Social Council, which deals with world development issues and the Human Rights Council, which deals with human rights.170

b UN High Commissioner for Human Rights

As part of the reform program within the United Nations, the Office of the High Commissioner and the Centre for Human Rights were consolidated into a single office of the United Nations High Commissioner for Human Rights in 1997,171 based in Geneva, Switzerland The Office of High Commissioner for Human Rights (OHCHR) was adopted under the UN General Assembly Resolution 48/141 creating the UNHCHR on 20 December 1993.172 The mandate of the Office

of High Commissioner for Human Rights clearly derived from the UN Charter Articles 1, 13 and

55, which emphasised protection, promotion and respect of human rights for all mankind To avoid any conflicting ideas regarding the mandate and the operational side of the UNHCHR, Article 2 of the Charter requires the High Commissioner for Human Rights to be of high moral

165 Karen J Alter, ‘The Evolving International Judiciary’ (2011) 7 Annual Review of Law and Social Science 387

166 Rhonda K Smith, International Human Rights (Oxford University Press, 5th edn, 2012) 27.

167 ibid

168 McBeth et al., The International Law of Human Rights, 206

169 Rosa Freedman, ‘The United Nations Human Rights Council: More of the same?’ Wisconsin International Law Journal,

standing and personal integrity, with knowledge both in human rights and in understanding the diverse cultures of the world

The High Commissioner for Human Rights is appointed by the UN Secretary General, and endorsed by the UN General Assembly based on geographical rotation, and serves for only four years with a possible extension of another term.173 The High Commissioner serves as Under Secretary General and his/her primary responsibility is to run the activities of United Nations human rights under the UN Secretary General The principal responsibility of the High Commissioner for Human Rights is to protect and promote human rights; to coordinate human rights promotion and protection throughout the UN system; and to advise the Secretary General on issues related to human rights.174 Further, the High Commissioner seeks to engage with governments of member states, positively seeking the promotion and protection of human rights across the nations The OHCHR promotes and protects human rights through its technical cooperation program, which includes support to the state’s own efforts to establish national protection systems that build on the domestic needs of an independent state and aim

to strengthen a legal and institutional framework that can promote and sustain human rights and democracy under the rule of law.175

c Human Rights Committee

The Human Rights Committee is a body of independent experts that monitors implementation

of the International Covenant on Civil and Political Rights by States Parties to the covenant.176

The Human Rights Committee was established by the ICCPR (Art 28).177 It is composed of 18 expert members with ‘high moral character, recognised competence and well respected in the field of human rights’ (Art 28(2)),178 with a wealth of legal experience The members are elected every four years with the possibility of extending the term The 18 members of the Committee meet three times a year for three weeks’ duration, in the New York headquarters in March, and in the United Nations Geneva office for the July and November Committee meetings.179

All States Parties are required to submit regular reports every 5 years to the Committee on how human rights are being implemented in their respected countries, following an initial report one year after agreeing to the Covenant.180

The parties to the ICCPR are obliged to submit periodic reports based on the measures they have adopted to give powers to the Covenant when requested to do so by the Committee (Art

40 (1)).181 As reporting obligations, the State Parties to the Covenant are required to submit initial reports within one year of entry into force The Human Rights Committee produced a

173 McBeth et al., The International Law of Human Rights , 206

174 Levin with Plantu, ‘Human Rights’ 106

guideline for the States in 1997; although it is not legally binding, the Committee encourages the State Parties to the Covenant to use the guidelines to help speed up the reporting process.182 The reports have to indicate the factors and challenges that affect the implementation of the ICCPR (Art 40 (2)) According to ICCPR (Art 40 (4)), the task of the HRC

is to examine all the reports submitted by the State Parties to the present Covenant and transmit its reports, and such general comment as it may consider appropriate, to the States Parties.183

This provision describes to a limited extent only how state reports should be studied Examining Article 40 of the ICCPR, it does not clearly reflect the nature of the study of the state’s reports that have taken place over the years The submission of the initial report in accordance with the ICCPR includes three main points: 1) Preparation of the state report by the state party on ratifying Covenant; 2) Pre-examination of the reports and a list of the issues – the HRC always appoints a task force of four to six members to pre-examine the reports and list issues that the Committee wants to discuss in detail with the delegation of the country concerned during the dialogue; 3) Dialogue between the HRC and the government delegation

of the state party In this step, the procedures consist of a dialogue in a series of public meetings between the full HRC or, in the case of a Committee on the Rights of the Child, a chamber and the government delegation, composed of highly competent members In this step, the HRC usually organises three meetings of three hours each, and for the periodic reports, it sets two hours for meetings Here, the dialogue starts with an introduction from the head of the delegation and then the delegation answers a first group of questions that list of issues After this procedure, time is allowed for comments and additional questions from the members of the task force entrusted to deal with particular problems on the list.184

In addition to the reporting procedures, Article 41 of the ICCPR advises the Committee to consider inter-state complaints On these grounds, the complaints may be submitted against the state which has acknowledged the competency of the Committee for this purpose (Art41).185 Further, the first Optional Protocol to the Covenant provides the Committee with competence to study individual complaints with regards to any alleged violation of the Covenant by the State Parties to the Protocol.186 The competency of HRC to receive the individual communication should be considered a key move in securing universal respect for, and implementation of, the International Bill of Rights

The researcher’s opinion on the HRC’s powers is that its power is limited to only receive the State Parties reports and examine them, but it has no powers of investigation, no judicial authority and certainly has no power to impose any penalty or sanctions against a state that violates the Covenant Therefore, the commission has very little power

182 Smith, International Human Rights, 68

183 UN Human Rights Committee, ICCPR, Art (4).

184 Hellen Keller and Geir Ulfstei, UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press, 2012)

20–5

185 UN Human Rights Committee, ICCPR Art 41

186 UN Human Rights Committee, ICCPR Optional protocol, Art 2, 5