0521858860 cambridge university press international human rights and humanitarian law treaties cases and analysis jan 2006

INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAWTreaties, Cases and Analysis International Human Rights and Humanitarian Law: Treaties, Casesand Analysis introduces law students to the in

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INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW

Treaties, Cases and Analysis

International Human Rights and Humanitarian Law: Treaties, Casesand Analysis introduces law students to the international legal instruments andcase law governing the substantive and procedural dimensions of internationalhuman rights and humanitarian law, including economic, social, and culturalrights The textbook also discusses the history and organizational structure ofhuman rights and humanitarian law enforcement mechanisms Relevant to U.S.audiences, a chapter is devoted to the issues surrounding the incorporation ofinternational law into U.S law, including principles of constitutional and statu-tory interpretation, conflict rules, and the self-execution doctrine Questions andComments sections provide critical analyses of issues raised in the materials Thelast chapter addresses theoretical issues facing contemporary international humanrights and humanitarian law and its enforcement

Francisco Forrest Martin is the president and founder of Rights International, TheCenter for International Human Rights Law, Inc

Stephen J Schnably is the vice-chair and legal director of Rights International,The Center for International Human Rights, Inc He is also the associate dean andprofessor of law at the University of Miami School of Law

Richard J Wilson is professor of law and director of the International HumanRights Law Clinic at American University Washington College of Law He is also alegal director of Rights International, The Center for International Human RightsLaw, Inc

Jonathan S Simon is associate dean and professor of law at the University ofCalifornia at Berkeley School of Law

Mark V Tushnet is the Carmack Waterhouse Professor of Constitutional Law atGeorgetown University Law Center

i

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International Human Rights

and Humanitarian Law

TREATIES, CASES AND ANALYSIS

Francisco Forrest Martin

Georgetown University Law Center

Published under the auspices of Rights International

The Center for International Human Rights Law, Inc.

iii

First published in print format

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- ----

© Martin, Schnably,Wilson, Simon, and Tushnet 2006

2005

Information on this title: www.cambridg e.org /9780521858861

This publication is in copyright Subject to statutory exception and to the provision ofrelevant collective licensing agreements, no reproduction of any part may take placewithout the written permission of Cambridge University Press

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www.cambridge.org

hardback

eBook (EBL)eBook (EBL)hardback

about

Rights InternationalThis book is published under the auspices of Rights International, TheCenter for International Human Rights Law, Inc Rights International is

a not-for-profit organization devoted to protecting and furthering therights recognized in the Universal Bill of Human Rights and other humanrights and humanitarian instruments It seeks to accomplish this mission

in two ways

First, Rights International provides legal assistance to victims of humanrights and humanitarian law violations before international tribunals,including those established by the United Nations, the Council of Europe,the Organisation of African Unity, and the Organization of AmericanStates

Second, Rights International trains lawyers and law students in national human rights law and practice This book represents one com-ponent of Rights International’s training program

inter-If you are interested in learning more about Rights International orworking on one of our international cases, please visit our website forinformation about the following programs:

Cooperating Attorney/Firm ProgramFrank C Newman Internship ProgramEric Neisser Project on International Human Rights Law in the UnitedStates

Law School Consortium Program

www.rightsinternational.org

v

vi

We dedicate this book to

Frank and Jonathan Askin

– from Jonathan Simon

ACLU National Prison Project

– from Mark Tushnet

vii

viii

Table of Selected Authorities xxi

Selected International Instrument Citations xxi Selected Cases, General Comments, & Advisory Opinions xxiii

Preface xxix

Researching International Human Rights Law xxx

1 An Overview of International Human Rights

and Humanitarian Law Development and Their Protection Mechanisms 1

1.1 The Historical and Conceptual Development of International Human

1.2 Overview of International Protection Mechanisms: History, Organization,

International Criminal Tribunals for the Former Yugoslavia and Rwanda 11

Philip Alston, The Commission on Human Rights in Alston (ed.) The

United Nations and Human Rights: A Critical Appraisal 126

ix

1.2.2 Regional Tribunals 16

African Commission and Court of Human and Peoples’ Rights 19

2 Formal Sources and Principles of International Human Rights and Humanitarian Law 22

Ian Brownlie, Principles of Public International Law 3, 4

Ian Brownlie, Principles of Public International Law 5–7, 10

Francisco Forrest Martin, Delineating a Hierarchical Outline of

International Law Sources and Norms, 65 Sask L Rev 333 (2002) 31

Aloeboetoe et al v Suriname, Inter-Am Ct H.R (1993) 39

Advisory Opinion, Judicial Guarantees in States of Emergency,

Vienna Convention on the Law of Treaties, arts 31 and 32 46

Hague Convention (IV) Respecting the Laws and Customs of War on

Advisory Opinion, “Other Treaties” Subject to the Consultative

Jurisdiction of the Court (Art 64 of the American Convention on Human Rights), Inter-Am Ct H.R (1982) 48

Paul Mahoney, Judicial Activism and Judicial Self-Restraint in the

European Court of Human Rights, 11 Hum Rts L.J 57 (1990) 54

Laurence R Helfer, Consensus, Coherence and the European

Convention on Human Rights, 26 Cornell Int’l L.J 133 (1993) 56

2.3 Principles of Liability 71

Dinah L Shelton, Private Violence, Public Wrongs, and the

Responsibility of States, 13 Fordham Int’l L.J 1 (1990) 71

Instruments

Vel´asquez Rodr´ıguez v Honduras, Inter-Am Ct H.R (1988) 81

Francisco Forrest Martin, “U.S Opposition to the International

Criminal Court: What Now?” 1 Accountability 2–8 (2002) 90

X and Y v The Netherlands, Eur Ct H.R (1985) 96

Andrew Clapham, Human Rights in the Private Sphere 93–104

Instruments

Memorial Amicus Curiae submitted by Rights International,

Benavides Cevallos v Ecuador, Inter-Am Ct H.R (1998) 110

Prosecutor v Kayishema & Ruzindana, ICTR (2001) 115

Judgment for the Trial of German Major War Criminals, International

Steven R Ratner, Corporations and Human Rights: A Theory of Legal

Responsibility, 111 Yale L J 443 (2001) 132

Statute of the International Criminal Court, Articles 31 and 33 147

Al-Adsani v United Kingdom, Eur Ct H.R (2001) 148

Democratic Republic of Congo v Belgium, ICJ (2002) 159

Superior Orders, Coercion, and Duress 168

In re Ohlendorf and Others (Einsatzgruppen Trial), IMT (1948) 168

3 Incorporation of International Human Rights and Humanitarian Law in U.S Law 175

3.1.1.1 Mandatory International Legal Construction Rule 176

Francisco Forrest Martin, Our Constitution as Federal Treaty: A New

Theory of United States Constitutional Construction Based on an Originalist Understanding for Addressing a New World, 31 Hastings

Lawrence v Texas, 539 U.S 558 (2003) 189

3.1.2.1 Federal Mandatory Rule: The Charming Betsy and Rossi Rules 191

Weinberger v Rossi, 456 U.S 25 (1982) 191

Curtis A Bradley, The Charming Betsy Canon and Separation of

Powers: Rethinking the Interpretive Role of International Law, 86 Geo.

Laurence R Helfer and Alice M Miller, Sexual Orientation and

Human Rights: Toward a United States and Transnational Jurisprudence, 9 Harv Hum Rts J 61 (1996) 203

3.2.1 Treaties and Federal Statutes: The Last-in-Time Rule 205

Chae Chan Ping v United States (The Chinese Exclusion Case), 130

Francisco Forrest Martin, Our Constitution as Federal Treaty: A New

Theory of United States Constitutional Construction Based on an Originalist Understanding for Addressing a New World, 31 Hastings

3.2.2 Customary International Law and Other Federal Law: The Garc´ıa-Mir

Garc´ıa-Mir v Meese, 788 F.2d 1446 (11th Cir 1986) 217

Francisco Forrest Martin, Our Constitution as Federal Treaty: A New

Theory of United States Constitutional Construction Based on an Originalist Understanding for Addressing a New World, 31 Hastings

John C Yoo, Globalism and the Constitution: Treaties,

Non-Self-Execution, and the Original Understanding, 99 Colum L.

John C Yoo, Rejoinder, Treaties and Public Lawmaking: A Textual and

Structural Defense of Non-Self-Execution, 99 Colum L Rev 2218,

Francisco Forrest Martin, Our Constitution as Federal Treaty: A New

Theory of United States Constitutional Construction Based on an Originalist Understanding for Addressing a New World, 31 Hastings

Sosa v Alvarez-Machain, 124 S Ct 2739 (2004) 254

4 International Human Rights Tribunal Procedure and Remedies 270

Advisory Opinion, Interpretation of the American Declaration of the

Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Inter-Am Ct H.R (1989) 271

Bankovi¸c and Others v Belgium and Others, Eur Ct H.R (2001) 276

Francisco Forrest Martin, The International Human Rights Aspects of

the Forum Non Conveniens Doctrine, 35 U Miami Inter-Am L.

A group of associations v Italy, UNHRC (1990) 287

Vel´asquez Rodr´ıguez v Honduras, Preliminary Objections, Inter-Am.

Advisory Opinion, Exceptions to the Exhaustion of Domestic Remedies

in Cases of Indigency or Inability to Obtain Legal Representation Because of a Generalized Fear Within the Legal Community, Inter-Am.

4.4 Remedies and State Compliance 301

5 Substantive International Human Rights and Humanitarian Law Protections 307

InstrumentsTorture; Cruel, Inhuman, Degrading Treatment or Punishment; and

Ireland v United Kingdom, Eur Ct H.R (1978) 315

Hern´andez Rivas v El Salvador, Inter-Am Cm H.R.

“The Baby Boy” Case, Inter-Am Cm H.R (1981) 330

Vo v France, Eur Ct H.R (2004) 333

Instruments

Domingues v United States, Inter-Am Cm H.R (2002) 339

Soering v United Kingdom, Eur Ct H.R (1989) 351

Judge v Canada, UNHRC (2003) 361

Sald´ıas de L´opez v Uruguay, UNHRC (1981) 365

Vel´asquez Rodr´ıguez v Honduras, Inter-Am Ct H.R.

Instruments

Murray v United Kingdom, Eur Ct H.R (1994) 374

Su´arez Rosero v Ecuador, Inter-Am Ct H.R (1997) 391

Advisory Opinion, Judicial Guarantees in States of Emergency,

Instruments

Advisory Opinion, Proposed Amendments to the Naturalization

Provisions of the Constitution of Costa Rica, Inter-Am Ct H.R (1984) 407

Salgueiro da Silva Mouta v Portugal, Eur Ct H.R (1999) 416

Simunek, Hastings, Tuzilova and Prochazka v The Czech Republic,

Abdulaziz, Cabales and Balkandali v United Kingdom, Eur Ct H.R.

Marschall v Land Nordrhein-Westfalen, Eur Ct J (1997) 447

5.2 International Humanitarian Law Protections and Human Rights-Related

Instruments

Prosecutor v Akayesu, ICTR (1998) 454

Instruments

Prosecutor v Tadi¸c (Final Judgment), ICTY (1997) 477

Prosecutor v Akayesu, ICTR (1998) 492

Instruments

Prosecutor v Tadi¸c (Final Judgment), ICTY (1997). 522

The Proportionality Rule and Superfluous Injury and Unnecessary

Francisco Forrest Martin, Using International Human Rights Law for

Establishing a Unified Use of Force Rule in the Law of Armed Conflict,

Rights International Memorial Amicus Curiae in Prosecutor v Gali¸c,

Francisco Forrest Martin, Challenging Human RightsViolations: Using International Law in U.S Courts 130–41

Instruments

Allenet de Ribemont v France, Eur Ct H.R (1995) 563

Grant v Jamaica, UNHRC (1994) 568

Advisory Opinion, The Right to Information on Consular Assistance in

the Framework of the Guarantees of the Due Process of Law Inter-American Court of Human Rights, Inter-Am Ct H.R.

Andrews v United States, Inter-Am Cm H.R.

Equality of Arms: Examination of Witnesses and

Harward v Norway, UNHRC (1994) 604

Edwards v United Kingdom, Eur Ct H.R (1992) 609

Kostovski v The Netherlands, Eur Ct H.R (1989) 619

Prosecutor v Kayishema & Ruzindana, ICTR (2001) 632

Funke v France, Eur Ct H.R (1993) 634

Firmenich v Argentina, Inter-Am Cm H.R (1989) 640

Welch v United Kingdom, Eur Ct H.R (1995) 646

Prosecutor v Kambanda, ICTR (2000) 655

InstrumentsSurveillance, Search and Seizure, and the Exclusionary Rule 662

Peck v United Kingdom, Eur Ct H.R (2003) 662

Klass and Others v Germany, Eur Ct H.R.

Garc´ıa P´erez v Peru, Inter-Am Cm H.R (1995) 678

Cr`emieux v France, Eur Ct H.R (1993) 680

Toonen v Australia, UNHRC (1994) 685

Goodwin v United Kingdom, Eur Ct H.R (2002) 692

Fei v Colombia, UNHRC (1995) 711

Br¨uggemann and Scheuten v Federal Republic of Germany,

Paton v United Kingdom, Eur Cm H.R (1980) 729

Instruments

Kokkinakis v Greece, Eur Ct H.R (1993) 736

Instruments

Lingens v Austria, Eur Ct H.R (1986) 753

J.R.T and the W.G Party v Canada, UNHRC (1983) 768

M¨uller and Others v Switzerland, Eur Ct H.R (1988) 772

Open Door Counselling and Dublin Well Woman v Ireland,

Barthold v Federal Republic of Germany, Eur Ct H.R (1985) 825

Instruments

Plattform ‘ ¨ Artze f¨ur das Leben’ v Austria, Eur Ct H.R (1988) 846

Instruments

Goodwin v United Kingdom, Eur Ct H.R (2002) 852

Johnston v Ireland, Eur Ct H.R (1986) 855

Instruments

Statehood Solidarity Committee v United States, Inter-Am Cm H.R.

Instruments

The Nature of States Parties Obligations, ECOSOC Ctte General

Five Pensioners Case, Inter-Am Ct H.R (2003) 895

James v United Kingdom, Eur Ct H.R (1986) 916

Stran Greek Refineries and Stratis Andreadis v Greece (Merits),

6 Theory and Critique 938

Richard Falk, the end of World Order: Essays on Normative

Yash Ghai, Universalism and Relativism: Human Rights as a

Framework for Negotiating Interethnic Claims, 21 Cardozo L.

Abdullah Ahmen An-Na’im, Human Rights in the Muslim World:

Socio-Political Conditions and Scriptural Imperatives, 3 Harv Hum.

Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist

Approaches to International Law, 85 Am J Int’l L 613 (1991) 956

Thomas M Franck, Legitimacy in the International System, 82 Am.J

xx

Table of Selected Authorities

Selected International Instrument Citations

UN Instruments

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or ment, Dec 10, 1984, G.A Res 39/46, 39 UN GAOR, Supp (No 51), UN Doc A/39/51, at

Punish-197 (entered into force June 26, 1987)

Convention on the Elimination of All Forms of Discrimination Against Women, Dec 18,

1979, G.A Res 34/180, 34 UN GAOR, Supp (No 46), UN Doc A/34/46, at 193 (entered intoforce Sept 3, 1981)

Convention on the Elimination of All Forms of Racial Discrimination, Dec 21, 1965, 660U.N.T.S 195 (entered into force Jan 4, 1969)

Convention on the Prevention and Punishment of the Crime of Genocide, Dec 9, 1948, 78U.N.T.S no 1021 (1951)

International Covenant on Civil and Political Rights, Dec 16, 1966, 999 U.N.T.S 171 (enteredinto force Mar 23, 1976)

International Covenant on Economic, Social and Cultural Rights, G.A res 2200A (XXI), 21

UN GAOR Supp (No 16) at 49, U.N Doc A/6316 (1966), 993 U.N.T.S 3 (entered into forceJan 3, 1976)

Statute of the International Court of Justice, 59 Stat 1005, T.S 993 (June 26, 1945)

Statute of the International Criminal Court, July 17, 1998, UN Doc 2187 UNTS 90 (enteredinto force July 1, 2002)

Statute of the International Criminal Tribunal, S/Res/808 (1993), U.N Doc S/25704 (May 3,1993)

Statute of the International Tribunal for Rwanda, U.N Doc S/Res/955, Annex (1994),

African Union Instruments

African Charter on Human and Peoples’ Rights, June 27, 1981, O.A.U Doc CAB/LEG/67/3Rev 5 (entered into force Oct 21, 1986)

Commonwealth of Independent States Instruments

Convention on Human Rights and Fundamental Freedoms of the Commonwealth of pendent States, Council of Europe doc H(95) 7 rev and Human Rights Information Sheet

Inde-No 36 (Jan.–Jun 1995) H/Inf (95) 3, pp 195–206

European Instruments

Charter of Fundamental Rights of the European Union in Treaty Establishing a Constitution

for Europe, Dec 16, 2004, II, 47 Official Journal of the European Union (C 310)

European Convention for the Protection of Human Rights and Fundamental Freedoms,Nov 4, 1950, 213 U.N.T.S 221 (entered into force Feb 3, 1953)

Protocol No 1, Mar 20, 1952, E.T.S 9 (entered into force May 18, 1954)

Protocol No 11, May 11, 1984, E.T.S 155 (entered into force 1998)

Eco-Protocol to the American Convention on Human Rights to Abolish the Death Penalty,Dec 15, 1989, OAS Treaty Series, No 73

Inter-American Convention to Prevent and Punish Torture, OAS Treaty Series No 67 (entered

into force 28 February 1987), reprinted in Basic Documents Pertaining to Human Rights

in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 83 (1992)

Inter-American Convention on the Prevention, Punishment and Eradication of Violence

Against Women (“Convention of Belem Do Para”), June 9, 1994, available at <http://www.

oas.org/en/prog/juridico/english/treaties/a-61.htm> (visited 24 July 2000)

Inter-American Convention on the Forced Disappearance of Persons, June 9, 1994, available

at <http://www.oas.org/en/prog/juridico/english/treaties/a-60.htm> (visited 24 July 2000)

(entered into force 28 March 1996)

American Declaration on the Rights and Duties of Man, May 2, 1948, O.A.S Res XXX,

reprinted in Basic Documents Pertaining to Human Rights in the Inter-American

System, OEA/Ser.L.V/II.82 doc 6 rev.1 at 17 (1992)

U.S Instruments

United States Constitution, Sept 17, 1787 (entered into force June 21, 1788)

Humanitarian Instruments

Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick inArmed Forces in the Field, August 12, 1949, 75 U.N.T.S 31 (entered into force October 21,1950)

Geneva Convention (IV) relative to the Treatment of Prisoners of War, August 12, 1949, 75U.N.T.S 135, 6 U.S.T 3316 T.I.A.S No 3364 (entered into force October 21, 1950).Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12,

1949, 75 U.N.T.S 287, 6 U.S.T 3516, T.I.A.S No 3365 (entered into force October 21, 1950).Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection of Victims of International Armed Conflicts (Protocol I), December 7, 1978,

16 I.L.M 1391, (entered into force December 7, 1978)

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977,

16 I.L.M 1442, (entered into force December 7, 1978)

Hague Convention (IV) Respecting the Laws and Customs of War on Land, with Annex ofRegulations, October 18, 1907, T.S No 539, 1 Bevans 631, 36 Stat 2277 (entered into forceJanuary 26, 1910)

Selected Cases, General Comments, & Advisory Opinions

A

Abdulaziz, Cabales and Balkandali v United

Kingdom,424

Abood v Detroit Bd of Educ.,850

Agrotexim and Others v Greece,289

Airey v Ireland,414

Al-Adsani v United Kingdom,148,163

Allenet de Ribemont v France,563,824

Aloeboetoe et al v Suriname,39

Baby Boy Case,329,727

Ballantyne, Davidson, McIntyre v Canada,

Bates v Bar of Arizona,840

Barthold v Fed Rep Germany,825

Bautista de Arellana v Colombia,87,89

Belgian Linguistics Case,414

Benavides Cevallos v Ecuador,110

Boner v United Kingdom,573

Boyle and Rice v United Kingdom,576

Brady v Maryland,608

Branzburg v Hayes,842

Bravo Mena v MexicoBruggemann and Scheuten v Fed Rep.Germany,332,724

Burstyn v Wilson,788

Celiberti de Casariego v Uruguay,286

Celis Laureano v Peru,86

City of Chicago v Tribune Co.,764

Cleburne v Cleburne Living Center,415

Coard v United States,399

Coeriel v The Netherlands,40

Collins v Jamaica,573

Compass v Jamaica,631

Compulsory Membership in an AssociationPrescribed by Law for the Practice ofJournalism,763,842,850

Domingues v United States,338

Doorson v The Netherlands,630

Dothard v Rawlinson,446

Douglas, Gentles, & Kerr v Jamaica,301

Dudgeon v United Kingdom,190,490,690

E

Eckle v Fed Rep Germany,645

Edwards v United Kingdom,608,609

E.L., R.L and J.O.-L v Switzerland,652

Employment Division, Dept of HumanResources v Smith,749

Enforceability of the Right to Reply orCorrection,842

Engle and Others v The Netherlands,824

Five Pensioners Case,895

44 Liquormart v Rhode Island,840

Gangaram Panday v Suriname,305

Garc´ıa Fuenzalida v Ecador,87

G.L., A.V., and S.L v Austria,419

Glimmerveen and Hagenbeek v The

Netherlands,770

Godinez Cruz v Honduras,369

Golder v United Kingdom,576

Hazelwood School District v Kuhlmeier,789

Heart of Atlanta Hotel v U.S.,415

Henfield’s Case,132

Hernandez Rivas v El Salvador,322

Hertzberg et al v Finland,801

Hill v Spain,397

Holy Monasteries v Greece,930

Hustler Magazine v Falwell,766

Huvig v France,677

I

Illinois v Gates,388

Informationsverein Lentia v Austria,843

International Responsibility for the

Promulgation and Enforcement of Laws

in Violation of the Convention,359

International Union, UAW v Johnson

Controls,446

Interpretation of the American Declaration

of the Rights and Duties of Man withinthe Framework of Article 64 of theAmerican Convention on Human Rights,

Kostovski v The Netherlands,619

Kroon and Others v The Netherlands,722

L

Lackey v Texas,359

Lala v The Netherlands,575

Lane v Brown,574

Larissis and Others v Greece,747

Laskey, Jaggard, and Brown v UnitedKingdom,690

notwithstanding Security CouncilResolution,54,79

Lingens v Austria,753

Little v Jamaica,301

Luedicke, Belkacem and Koc v Fed Rep.Germany,606

M.A.B et al v Canada,749

McDonald v Santa Fe Trail Transp Co.,

415

McGoff v Sweden,99–100

McKenzie v Day,360

Mantovanelli v France,609

Marschall v Land Nordrhin-Westfalen,446

Martin v Hunter’s Lessee,936

Martorell v Chile,824

Mathew v Lucas,722

Mathieu-Mohin and Clerfayt v Belgium,

881

Maxwell v United Kingdom,573

Mayagna (Sumo) Awas Tingni Community

v Nicaragua,913

Maznetter v Austria,644

Medellin v Dretke,590

Meritor Savings Bank v Vinson,446

Milkovich v Lorain Journal Co.,767

Moreira de Acevedo v Portugal,644

Muller and Others v Switzerland,772

Murray v Charming Betsy,191,246,401

Murray v United Kingdom,

New Orleans v Dukes,415

New York Times Co v Sullivan,764

New York Times Co v U.S (PentagonPapers Case),823

Paris Adult Theatre I v Slaton,786

Paton v United Kingdom,729

Peck v United Kingdom,662

Perez v France,336

Pine Valley Developments v Ireland,306

Planned Parenthood v Casey,734

Plattform ‘Arzte fur das Leben’ v Austria,

787,846

Poiss v Austria,931

Prager and Oberschlick v Austria,767

Pratt and Morgan v Attorney General,359

Pratt and Morgan v Jamaica,357

Pressos Compania Naviera S.A andOthers v Belgium,936

Proposed Amendments to theNaturalization Provisions of theConstitution of Costa Rica,406

Prosecutor v Kayishema & Ruzindana,632

Prosecutor v Kupreskic and Others,397

Rajagopal v State of Tamil Nadu,766

R.A.V v City of St Paul,771–772

Rasul et al v Bush,400

Red Lion Broadcasting Co v FCC,843

Regina v Miah,69

Reid v Jamaica,573

REINICIAR v Colombia,96

Report on the Incompatibility of “Desacato”

Laws with the American Convention onHuman Rights,763

Respublica v De Longchamps,257

Restrictions to the Death Penalty,358

Reynolds v Jamaica,575

Right to Information on Consular

Assistance in the Framework of theGuarantees of the Due Process of Law,577

Rizvanovic v Fed of Bosnia & Herzegovina,

Saldias de Lopez v Uruguay,286,364

Salgueiro da Silva Mouta v Portugal,415

Sawyers and McLean v Jamaica,575

Schmidt v Germany,444

Schoenberger and Durmaz Case,576

Schwabe v Austria,766

Silver v United Kingdom,576

Simunek, Hastings, Tuzilova and Prochazka

Statehood Solidarity Committee v U.S.,869

Stran Greek Refineries and Stratis Andreadis

v Greece,931

Strickland v Washington,575

Suarez Rosero v Ecuador,390,567,645

Sunday Times v United Kingdom,824

Stubbings & Others v United Kingdom,100

Terry v United States,388,684

Theophanous v Herald & Weekly TimesLtd.,765

xxviii

The fields of international human rights law and international humanitarian law haveexploded over the past fifty years The first few decades after World War II were devotedprimarily to the recognition of human rights norms; recent years have witnessed a steadygrowth in the recognition of humanitarian norms and the creation of mechanisms forenforcing and implementing both human rights and humanitarian norms Thus, victims

of human rights and humanitarian law violations around the world increasingly can findlegal protection and redress for their grievances

This book seeks to integrate the fields of international human rights law and tional humanitarian law Historically, these fields of law have developed in a somewhatdisjointed fashion, leading its expositors to view the fields as wholly distinct However,

interna-as we hope will become apparent to the reader, these fields increinterna-asingly have becomeintegrated, relying on each other for their own respective coherence Indeed, a funda-mental general principle of international law interpretation demands that states interprettheir international legal obligations consistently with their other international legal obli-gations Hence, a state’s international human rights legal obligations must be construed

in conformity with its international humanitarian legal obligations and vice versa.This integrationist approach is also supported by the texts of international humanrights and international humanitarian treaties For example, human rights treaties explic-itly address rights protections during armed conflicts – the customary subject that inter-national humanitarian law governs And, humanitarian treaties often explicitly prohibitacts (e.g., genocide, crimes against humanity) that occur outside of armed conflicts – thecustomary period of international human rights law application

Accordingly, this book will integrate international human rights legal materials withthose of international humanitarian law Specifically, the book will expose the student tosubstantive, procedural, and theoretical issues through international legal instruments,case law, and literature We begin with a historical and conceptual overview to providethe student with a social, political, institutional, and ideological context for understand-ing this law We then address the formal categories and principles of international lawwith especial attention to how these relate to international human rights and humani-tarian law

Because this book is primarily designed for a U.S audience, we have included a section

on the incorporation of international law in U.S law as well as integrated U.S tutional legal comparisons with the substantive international human rights law in thefollowing sections because there is much to be gained from such a comparison Civilliberties and civil rights law in the United States is highly developed, more so than is

consti-xxix

international human rights law in many areas At the same time, it is far from perfect.Accordingly, contrasts between U.S law and international law in specific areas can helphighlight any needed areas of improvement in either tradition Also, the emergence ofthe United States as the sole superpower in the post–Cold War era makes it ever morevital for the United States to promote international human rights and humanitarian law.Yet the U.S commitment to human rights and humanitarian law has been tepid at best; anumber of important treaties remain unratified, and others have been ratified only withlarge numbers of reservations, declarations, and understandings designed to limit theirimpact The tentativeness of this commitment may well stem in part from the unfamil-iarity of human rights and humanitarian law to many in the United States, including alarge segment of its legal profession The comparative analysis with U.S law may offer asmall contribution to demystifying and clarifying to a U.S audience the ramifications of

a full commitment to human rights and humanitarian law

We then address procedural and substantive law, which constitutes the major tion of the book In the sections dealing with substantive law, we have focused on issuesthe we believe a U.S law student audience would find especially interesting and timely.Such issues include abortion, the death penalty, torture, gay rights, war crimes, genocideand discrimination, freedom of speech, and economic rights

propor-Finally, we have placed theoretical materials at the end of the book to suggest that amore abstract and critical treatment of international human rights law and internationalhumanitarian law may be best approached after one has become familiar with the sub-stantive and procedural law We have attempted to give the reader a taste of differenttheoretical and critical approaches from a variety of viewpoints

Beyond the pedagogical purposes of this book, we hope that in exposing the lawstudent to the full range of current human rights and humanitarian legal issues, thisbook will illuminate the future promise of human rights and humanitarian law as ameans of protecting individuals and groups facing persecution The inspiration of thatpromise – and the responsibilities it imposes – sustain the efforts of countless advocatesfor international human rights and humanitarian law

We invite our readers – faculty, students, practitioners, and others – to send gestions and comments as well as any corrections Rights International can be reachedthrough its home page at http://www.rightsinternational.org or by e-mail at <ricenter@rightsinternational.org>

sug-Researching International Human Rights Law

It is our hope that the casebook will serve as a research aid for practitioners handling cases,and students and faculty writing about international human rights law topics Thus, onepurpose of this book is to bring together in a convenient arrangement a large portion ofthe impressive body of international human rights and humanitarian case law

At the same time, it is clear that no single work can possibly be comprehensive Whilethe present work provides a useful starting point for research, lawyers and academics will

of course need to supplement its efforts The human rights litigator and academic should

be aware that library searches, often through hard copies of poorly indexed and datedmaterials, will be essential to comprehensive legal analysis The materials of the UnitedNations, for example, are among the most daunting and obscure to research

A number of excellent bibliographies provide systematic guidance to human rightssources They should be consulted at the outset of any research task Two noteworthy

examples are David Weissbrodt and Marci Hoffman’s Bibliography for Research on

Inter-national Human Rights Law, 6 Minn J Global Trade 200 (1997), and Jack Tobin and

Jennifer Green’s Guide to Human Rights Research (1994)

Online databases such as LexisNexis and Westlaw or, increasingly, the Internet, alsoprovide valuable tools for research Indeed, educated in the era of computers, many lawstudents today tend to conclude that the time for doing research in books, digests, andother hard copies has passed The conclusion is premature Students and practitionersalike must still take great care to examine multiple sources, often by digging through thelibrary stacks Nevertheless, online resources can be essential, particularly for finding themost up-to-date cases

There are many places to find guidance to online research The Rights Internationalhome page maintains links to many helpful research sources on the Internet

Note Regarding Editing

To facilitate reading, most footnotes from the case excerpts have been placed in theses within the text of the excerpt; however, some footnotes and citations in excerptsfrom cases and other materials have been omitted The editors have changed citationstyles within case excerpts from the European Court of Human Rights for purposes ofconsistency, clarity, and brevity Footnote numbering in excerpts contained in this bookmay not reflect the original numbering in the excerpt

paren-The editors’ comments generally are enclosed by brackets

Acknowledgments

We wish to thank the following persons who contributed to the International HumanRights Law and Practice: Cases, Treaties and Materials (Kluwer Law International1997), from which this present casebook has taken substantial material:

Richard Falk Edward Koren Ronald Slye

We also would like to thank Professors Connie De La Vega and George Edwards and

an anonymous reviewer for their comments on a draft of this book, John Berger, andCambridge University Press Finally, we would like to acknowledge and thank the fol-lowing authors and publishers who granted permission to reprint excerpts from the

following copyrighted material: Philip Alston, The Commission on Human Rights, The

United Nations and Human Rights: A Critical Appraisal 126 (Philip Alston ed.,

Oxford Univ Press, 1992); Abdullah Ahmen An-Na’im, Human Rights in the Muslim

World: Socio-Political Conditions and Scriptural Imperatives, 3 Harvard Human Rights

Journal 13 (1990); Ian Brownlie, Principles of Public International Law (OxfordUniv Press, 4th ed., 1990); Hilary Charlesworth, Christine Chinkin & Shelley Wright,

Feminist Approaches to International Law, 85 American Journal International Law

613 (1991); Andrew Clapham, Human Rights in the Private Sphere (Oxford Univ

Press, 1993); Richard Falk, The End of World Order: Essays on Normative tional Relations 26–30, 277, 288, 289–89 (New York: Holmes & Meier, 1983), copyright

Interna-1983 by Holmes & Meier Publishers, Inc Reproduced by permission of the publisher;

Thomas M Franck, Legitimacy in the International System, 82 American Journal of

International Law 705 (Wash., D.C.: American Society of International Law, 1988);

Laurence R Helfer, Consensus, Coherence and the European Convention on Human Rights,

26 Cornell International Law Journal 133 (1993), copyright 1993 by Cornell

Uni-versity, All Rights Reserved; Laurence R Helfer and Alice M Miller, Sexual Orientation

and Human Rights: Toward a United States and Transnational Jurisprudence, 9 Harvard

Human Rights Journal 61 (1996); Louis Henkin, The Age of Rights (1990),

copy-right 1990 by Columbia University Press; Paul Mahoney, Judicial Activism and Judicial

Self-Restraint in the European Court of Human Rights, 11 Human Rights Law Journal

57 (1990), copyright 1990 by N P Engel Publisher, Kehl/Arlington, Va.; Dinah L Shelton,

Private Violence, Public Wrongs, and the Responsibility of States, 13 Fordham

Interna-tional Law Journal 1 (1990); Francisco Forrest Martin, Delineating a Hierarchical

Outline of International Law Sources and Norms, 65 Sask L Rev 333 (2002); Francisco

Forrest Martin, Using International Human Rights Law for Establishing a Unified Use of

Force Rule in the Law of Armed Conflict, 64(2) Sask L Rev 347 (2002); Francisco Forrest

Martin, “U.S Opposition to the International Criminal Court: What Now?” 1

Account-ability 2–8 (2002); Francisco Forrest Martin, Our Constitution as Federal Treaty: A New Theory of United States Constitutional Construction Based on an Originalist Understanding for Addressing a New World, 31 Hastings Const L Quart 258 (2004); Francisco Forrest

Martin, Challenging Human Rights Violations: Using International Law in U.S

Courts (2001); Francisco Forrest Martin, The International Human Rights Aspects of the

Forum Non Conveniens Doctrine, 35 U Miami Inter-Am L Rev 101, 106–109 (2003);

Curtis A Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the

Interpretive Role of International Law, 86 Geo L J 479, 495–533 (1998); Steven R Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L J 443 (2001);

John C Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the

Origi-nal Understanding, 99 Colum L Rev 1955 (1999); John C Yoo, Rejoinder, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 Colum L.

Rev 2218, 2233 et passim (1999); Yash Ghai, Universalism and Relativism: Human Rights

as a Framework for Negotiating Interethnic Claims, 21 Cardozo L Rev 1095–1102 (2000);

David Kennedy, The International Human Rights Movement: Part of the Problem? 15 Harv.

Hum Rts J 101 (2002), copyright 2002 by the President and Fellows of Harvard College;

Yash Ghai, Universalism and Relativism: Human Rights as a Framework for Negotiating

Interethnic Claims, 21 Cardozo L Rev 1095–1102 (2000).

1. An Overview of International Human Rights and

Humanitarian Law Development and

Their Protection Mechanisms

In this section, we provide a brief overview of the historical and conceptual development ofinternational human rights and humanitarian law For the student of international humanrights and humanitarian law, it is important to note the political, social, and economicconditions giving rise to the conception of international law and the definitional limitsimposed by that conception To this end, we sketch an outline of this development withcertain extralegal themes in mind: the nation-state, war, and international transactions

In the next section, we provide an overview of the history, organization, and operation

of present international human rights and humanitarian law mechanisms of protection.

1.1 The Historical and Conceptual Development of International Human Rights and Humanitarian Law

The “law of nations” (jus gentium) is now called “international law.” However, the phrase

“international law” (jus inter gentes) is misleading because it falsely suggests a body of law

that only governs relations between nations, and international human rights law most

often governs intranational matters Jus inter gentes is only a subset of the law of nations.

Indeed, the phrase “international law” was not coined until 1780 by Jeremy Bentham.Further contributing to the unfortunate use of the word “international law” is that theword “nation” has become conflated with the meaning of “state,” suggesting falsely thatinternational law does not protect and impose duties on a state’s own nationals “Nation”means “people,” and a “state” is a particular kind of political body that is defined assuch according to its relation with other states A state sometimes – but not always –

is a political organization of a people Sometimes a state encompasses several peoples.The conflation of “nation” and “state” probably can be attributed to the emergence

of independent “nation-states” that resulted from the dismantling of the Holy RomanEmpire with the Peace of Westphalia ending the Thirty Years War in 1648 These eventsinitiated an important conceptual approach to the law of nations: international law is a law

of nations – not of individuals On a theoretical level, this conception was strengthened

by the use of Roman law by clerks running the chancelleries of these newly emergingnation-states These clerks earlier had studied law at universities in Padua, Bologna, andParis where there had been a revival of the study of Roman law that placed primacy onthe state’s interests – not the individual’s

However, the quasi-private dimension of international law remained and contributed

greatly to the growth of the law of nations One important area of this law was the lex

mercatoria, and this body of international trade law developed through state-private

1

commercial leagues, such as the Hanseatic League To reduce transaction costs associatedwith violations of commercial customs, it was necessary to normalize these practicesthrough treaties.

Rationalization efforts With the growing number of treaties and customs, legal

schol-ars undertook efforts to rationalize this growing corpus of international law The first

prominent school of thought used natural law (jus naturale) The leading natural law

scholars were Hugo Grotius (1583–1645), Francisco de Vitoria (1486?–1546), FranciscoSuarez (1548–1617), and Samuel Pufendorf (1632–1694) Whereas Vitoria and Suarezbased their natural law theories on the laws of God, Grotius had a secular theory based

on universal reason rather than divine authority In his book,De Jure Belli ac Pacis (Concerning the Law of War and Peace), Grotius argued that two of the mostimportant principles of the law of nature were (i) restitution must be made for harm

done by one party to another and (ii) promises (e.g., treaties) given must be kept (pacta

sunt servanda) These principles are still present in today’s international law.

The next school of thought was Positivism Its leading exponents were Richard Zouche(1590–1660) and Emerich de Vattel (1714–1767) “The rise of positivism in Westernpolitical and legal theory, especially from the latter part of the 18th century to the earlypart of the 20th century, correspond[ed] to the steady rise of the national state and itsincreasingly absolute claims to legal and political supremacy.”1This school focused onpositive law as opposed to natural law With this shift in focus came the primacy ofcustom and treaties as evidence of the will of nations Natural law principles were usedonly where a lacuna existed as to the positive law

The beginnings of human rights and humanitarian law The beginnings of human

rights and humanitarian law are somewhat disjointed Human rights law clearly had abeginning in humanitarian law that is strongly associated with international law gov-

erning the justification of wars (jus ad bellum) and the conduct of war (jus in bello).

Although the concept of war crimes goes as far back as the fifth century with St tine’s discussion of a just war in his treatise, City of God, it was not until 1268 thatsomeone was tried and executed for beginning an unjust war.2Two hundred years later

Augus-in 1474, twenty-seven judges of the Holy Roman Empire tried and condemned Peter vonHaganbach for crimes his troops committed against civilians

The conceptual beginnings of international human rights law can be found also innatural law theory As Professor Louis Henkin has observed:

Individual rights as a political idea draw on natural laws and its offspring, natural rights Inits modern manifestation that idea is traced to John Locke, to famous articulations in theAmerican Declaration of Independence and in the French Declaration of the Rights of Manand of the Citizen, and to realizations of the idea in the United States Constitution and itsBill of Rights and in the constitutions and laws of modern states.3

The conceptual beginning of international human rights law may also owe its existence

to the jus gentium governing commercial transactions insofar as this law freed up the

conceptual limits on international law as confined to a law between nation-states only

1 Louis Henkin, et al., International law: Cases and Materials xxv (3d ed 1993).

2 Christopher L Blakesley, Report on the Obstacles to the Creation of a Permanent War Crimes Tribunal, 18

Fletcher Forum of World Affairs 77 (No 2, 1994).

3 Louis Henkin, The Age of Rights 1 (1990).

to allow for the protection of the economic interests of individuals and commercialorganizations.

It is in the nineteenth century that an integration of international human rights lawand international humanitarian law that reflects and integrates the ideas, events, andconditions outlined emerges For example, in the nineteenth century, states began toadopt the practice of outlawing the trafficking of slaves – a human rights concern In 1868,the St Petersburg Declaration condemned the use of “dum dum” bullets in war, therebyintroducing the modern international humanitarian law on which modern internationalhuman rights law would be built In 1898, the Convention on the Laws and Customs

of Land War (the “First Hague Convention”) was established as the first internationalcodification of laws of land war

Accordingly, one later begins to see humanitarian law cases and additional treaties

For example, in The Paquete Habana,4 the U.S Supreme Court held that the seizure oftwo civilian fishing boats as prizes of war was unlawful under customary internationallaw In 1920, the Treaty of Sevres provided for Turkey’s surrender of persons responsiblefor the murder of an estimated six hundred thousand Armenians in 1915

Contributing to the conceptual development of international human rights law was theinternational law governing the treatment of aliens and national minorities In 1927, theUnited States brought an international claim on behalf of a U.S citizen against Mexico

In The Chattin Case,5 a U.S citizen had been arrested in Mexico for embezzlement.Under a treaty between Mexico and the United States establishing a claims commission,the United States on behalf of Mr Chattin claimed that the Mexican authorities hadviolated several of Chattin’s due process rights as recognized under international law.The commission found for the United States (and Chattin) In another Mexican case,the commission found Mexican authorities liable for their failure to take prompt andefficient action in pursuing the murderer of a U.S citizen working in Mexico.6In 1935,the Permanent Court of International Justice issued an advisory opinion finding that

a Muslim-dominated Albania unlawfully had discriminated against its Greek Christianminority by closing all private schools – including Christian ones, in violation of its duty

as a member of the League of Nations

Between World Wars I and II, other humanitarian treaties were adopted The GenevaConventions of 1929 governed the conduct of war, and the Kellogg-Briand Pact outlawedwar of aggression In 1937, the League of Nations adopted a Convention Against Terror-ism, and an optional protocol provided for the establishment of a special internationalcriminal court to prosecute crimes of terrorism, although the convention never cameinto force.7

The World War II tribunals: A watershed in the integration of international human rights law and international humanitarian law Ten years later, the Nuremberg and

Tokyo War Crimes Tribunals would bring together these diverse strands of tional law, thereby creating a somewhat more coherent international human rights andhumanitarian law During World War II, many and various gross human rights and

interna-4 175 U.S 677 (1900).

5 United States of America (B E.Chattin) v United Mexican States, United States-Mexican Claims

Commis-sion, 4 U.N.R.I.A.A 282 (1927).

6 United States v Mexico (Laura M B Janes), United States and Mexico General Claims Commission, 1926,

[1927] Opinions of the Commissioners 108, 4 U.N Rep Int’l Arb Awards 82.

7 C Oliver, The International Legal System 910 (4th ed 1995).

humanitarian law violations were perpetrated by both the Allies and Axis powers ever, many atrocities were not covered by the laws of war These atrocities included NaziGermany’s discrimination against and mass murder of Jews, the Romani, homosexuals,and communists The U.S government interned Japanese Americans in concentration

How-camps, an action upheld by the Supreme Court in Korematsu v United States, 323 U.S.

214 (1944) These human rights violations were not covered by the laws of war insofar

as they constituted a state’s mistreatment of its own citizens, persons believed by many

at the time not to be covered by international legal protection

In the summer of 1945, Allied leaders met in London to discuss the establishment

of a war crimes tribunal Consequently, the Allies signed the London Agreement andCharter1 that provided for establishing an ad hoc tribunal for prosecution of Germanwar criminals This tribunal was called the International Military Tribunal (IMT) orNuremberg War Crimes Tribunal

Before this agreement, alternative fora were entrusted with the responsibility of tryingwar criminals These tribunals were not displaced by the IMT These trials took placebefore, during, and after the time of the Nuremberg trials The most significant of thesewere the “Subsequent Proceedings” authorized by Control Council Law No 10 thattook place in the U.S Zone of Occupied Germany During these proceedings, about twohundred Nazi doctors, lawyers, SS leaders, generals, and diplomats were tried There wereother courts that tried Nazi war criminals as well: local courts throughout Germany, orelsewhere in Europe, and both British and American military courts-martial

The Allies thought, however, that the IMT was necessary for the prosecution of otherNazi war criminals because the Allies feared that these criminals would escape punish-ment under domestic law For example, some of the crimes were committed in a number

of European jurisdictions, and it was unclear which country had a better claim to diction The IMT’s international jurisdiction mooted such jurisdictional issues Also,many of the courts of the occupied nations used domestic law that allowed an affirmativedefense of obedience to superior orders However, under the London Charter, the IMTdisallowed the defense of obeying orders

juris-In addition to charging defendants with violations of the laws of war, the IMT punishednew categories of offenses The London Charter established other crimes than those earlieridentified in The Hague Conventions These were crimes against peace, conspiracy tocommit crimes against peace, and crimes against humanity The assertion that a personcould be held criminally liable under international law for conspiracy was controversialbecause there was no analogous criminal liability in the civil law traditions of two members

of the Allied Powers – France and the Soviet Union The last of these crimes, crimes againsthumanity, had some grounding in The Hague Conventions In the London Charter, theywere defined as:

murder, extermination, enslavement, deportation, and other inhumane acts committedagainst any civilian population, before or during the war, or persecutions on political, racial

or religious grounds in execution of or in connection with any crime within the tion of the Tribunal, whether or not in violation of the domestic law of the country whereperpetrated.2

jurisdic-1 (United States, Soviet Union, Great Britain, France) Agreement signed at London August 8, 1945, 59 Stat.

1544, E.A.S No 472 (hereafter London Charter).

2 Id at art 6(c).

This marked a watershed in the conceptual and institutional development of tional human rights and humanitarian law The treaty law creating and governing theIMT wove together all the different and separate strands of the nascent international

interna-human rights and interna-humanitarian law: jus in bello, individual standing (and liability), the

international arbitrational law governing the treatment of aliens, the international lawprohibiting discrimination against national minorities, customary international law out-lawing slavery, and even the use of natural law for recognizing international crimes wherecustomary international law arguably had been less than clear

The Nuremberg trial lasted eleven months The IMT tried twenty-two individuals andsix organizations Of those tried, the IMT sentenced twelve individuals (including FritzSauckel, Arthur Seyss-Inquart, Martin Bormann, Julius Streicher, and Herman Goering)

to death by hanging and imprisoned seven others at the Allies’ Spandau prison outsideBerlin Three of the six Nazi and German governmental organizations were found guilty

as well

A year after the IMT was established, Gen Douglas MacArthur, Supreme Allied mander for the Pacific Theater, established an equivalent tribunal in Tokyo by militaryorder This tribunal was called the International Military Tribunal for the Far East (IMT-FE) The IMT-FE was very similar to its counterpart in Nuremberg regarding subject-matter jurisdiction As with the IMT, the IMT-FE had jurisdiction over crimes againsthumanity, crimes against peace, conspiracy, and other war crimes.3

Com-The aftermath of World War II It has been argued that the Tokyo and Nuremberg

trials did not reflect justice but only “victors’ vengeance.” However, as Professor IanBrownlie has observed, “whatever the state of law in 1945, Article 6 of the NurembergCharter has since come to represent general international law.”4And, the United Nations(UN) General Assembly subsequently unanimously adopted a resolution affirming “theprinciples of international law recognized by the Charter of the Nuremberg Tribunal andthe judgment of the Tribunal.”5

After the end of World War II, three intergovernmental organizations were established:the United Nations (1945), the Council of Europe (1949), and the Organization of Amer-ican States (1948) All three organizations promulgated human rights and humanitarianlegal standards and adopted treaties that established protection mechanisms One of theUN’s first contributions was to provide auspices for formulating the basic normativestructure of international human rights law This undertaking took the form of drafting

a series of authoritative texts that set forth an agreed corpus of substantive rights: the

3 Besides these tribunals, there were other military commissions responsible for prosecuting violations of

the law of war See, e.g., In re Yamashita, 327 U.S 1, 347 (1946) (recognizing “command responsibility”

for failure of a Japanese general to stop war atrocities committed by his troops) Following World War

II, there have been some important domestic cases addressing humanitarian law The foremost case was

Attorney-General of Israel v Eichmann, 36 Int’l L Rep 5 (1968) (District Ct Jerusalem 1961), in which

the former Nazi leader in charge of the “Final Solution” was prosecuted under Israeli law Another notable

case was United States v Calley, 48 C.M.R 19 (U.S Ct Military App 1973), 48 C.M.R 19 (U.S Ct Military

App 1973), in which a U.S soldier was convicted of murdering civilians in the My Lai village during the

Vietnam War And, in Matter of Demjanjuk, 603 F Supp 1468 (N.D Ohio 1985), an alleged Treblinka

concentration camp guard was extradited to Israel to stand trial; however, he subsequently was found not guilty by an Israeli court and ordered to be allowed to return to the United States.

4 Ian Brownlie, Principles of Public International Law 562 (4th ed 1990).

5 Id.

foundational documents were the Universal Declaration of Human Rights (1948); theInternational Covenant on Economic, Social, and Cultural Rights (1966); and the Inter-national Covenant on Civil and Political Rights (1966) Together these are often referred

to as the Universal Bill of Human Rights Subsequently, a series of legal instrumentswere adopted addressing more focused human wrongs and offering the protection of law

to vulnerable targets of abuse These included instruments relating to genocide, racialdiscrimination, women, children, refugees, victims of torture, and indigenous peoples.Most recently, the UN has established the International Criminal Tribunals for the FormerYugoslavia and Rwanda and the International Criminal Court

However, regional organizations had been more successful in protecting human rightsthan the UN because both the United States and the Soviet Union used charges of humanrights violations as a political tool to discredit the other Accordingly, the Council ofEurope adopted the European Convention on Human Rights in 1950, which establishedthe European Commission and Court of Human Rights The Organization of AmericanStates adopted the American Declaration on the Rights and Duties of Man in 1948 andthe American Convention on Human Rights in 1969 and established the Inter-AmericanCommission and Court of Human Rights In Africa, the Organisation of African Unity hasestablished the African Commission and Court of Human and Peoples’ Rights, chargedwith enforcing the African Charter on Human and Peoples’ Rights

In the following section, we discuss in greater detail these and other subsequent opments in international human rights and humanitarian law and their enforcementmechanisms

devel-1.2 Overview of International Protection Mechanisms:

History, Organization, and Operations

We now will examine the major international human rights and humanitarian tive and other enforcement mechanisms

adjudica-1.2.1 United Nations Mechanisms

The UN’s human rights and humanitarian enforcement mechanisms are either UN

treaty-or UN Charter-based The difference between treaty- and Charter-based treaty-organizations isimportant on a very pragmatic level Charter-based organizations are supported by UNmembers dues; treaty-based organizations are funded only on a voluntary basis by thestates parties to the treaty

Within the UN enforcement system, there are diverse organs, such as courts/tribunals,committees, special procedural mechanisms, working groups, rapporteurs, experts, andrepresentatives The only true courts/tribunals at present are the following:

r International Court of Justice (“The Hague” or ICJ)

r International Criminal Court (ICC)

r International Criminal Tribunal for the Former Yugoslavia (ICTY)

r International Criminal Tribunal for Rwanda (ICTR)

Tribunals and courts that have been established or proposed under agreements betweenthe UN and national authorities (so-called hybrid tribunals) include the following: