Examen Human Rights:Derechos Humanos, Exámenes de Derechos Humanos

¡Descarga Examen Human Rights:Derechos Humanos y más Exámenes en PDF de Derechos Humanos solo en Docsity! Unit 1: Introduction to Human Rights - Lesson 1: Historical antecedents in the protection of human rights - Lesson 2: Human rights after the end of IL World War - Lesson 3: The UN system - Lesson 4: Universal Declaration of Human Rights What are human rights? Do you think they have priority over other? There is an idea of priority? They are interdependent and interrelated Human rights implications: rights and obligations = mainly for states = states are main actors in the intemational. > Human rights are rights that belong to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language or any other status. We all > Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights. Lesson 1: Historical approach towards human rights Significant dates: 1776: Virginia Declaration of Rights > People has inherent rights That all men are by nature equally free 8 independent 8, have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life 4 liberty, with the means of acquiring 8 possessing property 8. pursuing $. obtaining happiness 8. safety. 1789: Déclaration des droits de l'homme et du citoyens (article 1: “Men are born and remain free and equal in rights. Social distinctions may be based only on considerations of the common good”) /United States Bill of Rights: implications? > It was sent to the states for approval in 1789 and is the name given to the first 10 amendments to the US Constitution, which were adopted in 1791. The Bill of Rights consists in guarantees of civil liberties and checks on state power; it was added in order to convince states to ratify the Constitution. 1945: End of the 2 World War; implications? > The United Nations, founded in 1945 after World War ll and the Holocaust, was created principally to maintain international peace and security and to encourage and promote respect for human rights and fundamental freedoms. - 1948: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (Article 1). > The Universal Declaration of Human Rights (UDHR) was adopted in 1948. 2002: Rome Statute in force; implications? > It established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression . Under the Rome Statute, the ICC can only investigate and prosecute the four core international crimes in situations where states are "unable" or "unwilling" to do so themselves. You need to know the differences and functions of: 002 = genocide, crimes to humanity, individuals , belongs to the UN and is in charge of provided information of how rules need to be applied and is in charge about the Human rights are relatively a “recent invention”; so recent that historians have only just begun to write their history. 1. 2. 3. 4. 1800s Specific concern emerged in the eighteenth century in Europe and in the US 1945 A new era began for human rights 2002 The Rome Statute entered into force on 1 July 2002 2010 Meeting in Kampala > the ICC modified the Rome Statute and they included the crime of Aggression entered inti force in 2018 “Human rights” in the 1800s In those times the concerned about human rights disappeared. > Slavery was abolished. It was a civilizing mission and a religious and political interests. The UK, in order to have the slaves happy, they freed them too. Also, at the end of the XIX Century, France did the same. And other certain countries abolished the slavery too. Demand of Civil 8. Social Rights. The workers demand to be protected, but not by basic rights, just by rights for their works. Nationalism. As many empires were decreasing and disappearing like the Romanov, Hamburg and others, new Countries/States arose. And also, people transferred from the countryside to the cities. Treaty of Versailles. International Law. Thanks to the adoptions of the Geneva Conventions. Norms and rules to limit the atrocities and acts of Wars; also, to protect the people/civilians in Wars. Henry Dunant was the founder of the Red Cross. it will protectin arms conflicts, which is not the same as INTERNATIONAL HUMANRIGHTS, which ¡Eprotects always. In first term, everyone talked about the “rights of man” This concept vanished from European politics in the epoch between the eighteenth- century revolutions and the worlds war of the twentieth century. Rights that were supposed to hold for all mankind were as rare in international law as they were in the constitutions area. PRon> Abolition of slavery Demand of civil and social rights Nationalism International Law > Geneva conventions are a series of international treaties concluded in Geneva between 1864 and 1949 that establish the standards a - War crimes: “murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity”. - Crimes against humanity: “murder, extermination, enslavement, deportation, and other inhumane acts committed against 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 jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”. Objective? > The victorious Allied govemments established the first intemational criminal tribunals The impact of the Nuremberg and Tokyo Trials? ¡Outcomes - The Nuremberg and Tokyo proceedings established that many violations of IHL that had therefore given rise only to state responsibility also gave rise to individual criminal - Primacy of international law over domestic law. Implications? > while intemational law involves the regulation of the relationship between sovereign states, domestic law confers rights to persons and entities within the sovereign state. Ad hoc courts they state that they have priority over domestic courts, no matter what's has been occurred in a national level. - — High- ranking state officials could be held individually criminally liable for international crimes committed in war. Differences between the end of WWI and WWII? At the end of WW1 almost no action was taken, only the League of Nations was created. However, after WW2 more courts were created, and it was better for Human Rights Lesson 3: The UN system The Character of the United Nations e . The preamble consists of two principal parts: the first part containing a general call for the maintenance of peace and international security and respect for human rights; the second part of the preamble is a declaration in a contractual style that the governments of the United Nations have agreed to the Charter. Main objectives of the UN? 1. To maintain international peace and security; 2. To encourage intemational cooperation in the spheres of social, economic and cultural developments; 3. To develop friendly relations among nations on principles of equal rights and self- determination; 4. To recognize the fundamental rights of all people. How can State be a member of the UN? Article 4 1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter ana, in the judgment of the Organization, are able and willing to carry out these obligations. 2. The admission of any such state to membership in the United Nations will be effected by a Can a Member State be expelled from the UN? Article 6 A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council. Which are the organs that are part of the UN? Article 7 1. There are established as the principal organs of the United Nations: A General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat. The General Assembly: Chapter IV Composition? Art. 9 1. The General Assembly shall consist of all the Members of the United Nations. Functions of the General Assembly? Art. 10-17 + Consider and approve the UN budget and establish the financial assessments of Member States; . and the members of other UN councils and organs and, on the recommendation of the SC, appoint the SG; + Consider and make recommendations on the general principles of cooperation for maintaining international peace and security, including disarmament; * Discuss any question relating to international peace and security and, except where a dispute or situation is currently being discussed by the SC, make recommendations on it; * Initiate studies and make recommendations to promote international political cooperation, the development and codification of international law, etc.; In cases of a threat to peace, what can the GA do? to maintain or restore international peace and security. How do Member States vote? Votes taken on designated important issues Recent and positive objectives encouraged by the GA? The Millennium Declaration, adopted in 2000 reflect the commitment of MS: 3 In 2015, the Assembly agreed on a set of 17 Sustainable Development Goals Examples of how the GA/the UN in general terms has failed? Kofi Annan -who was head of the U.N.'s peacekeeping department at the time- expressed his "deep remorse" over the UN's failure to halt the massacre of 800,000 men, women and children in Rwanda. He said one of his major goals as Secretary-General is to make sure the UN never again fails to protect a civilian population from mass slaughter. “All of us must bitterly regret that we did not do more to prevent it” 2 In order to ensure that genocide never happens again what has the United Nations “leamed” about the genocide in Rwanda? Which are the measures that should be adopted if something similar happens again according to United Nations point of view? They did not learn anything since many countries were hiding the situation and the genocide that was committed. Perhaps an ad hoc tribunal could be set up to review the situation but if some other country continues to hide the situation it would not be helpful. > ltis mainly with the Nuremberg trials after World War ll, however, that dealing with criminal cases against individuals Composition? Art. 23 The Secunty Council consists of ten non-permanent elected members, and five permanent members-China, the United States, France, the United Kingdom, and Russia (which rotes every year) Functions and powers? Arts. 24-26 + to maintain international peace and security + — The Security Council shall act in accordance with the Purposes and Principles of the United The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration Security Council in accordance with the present Charter. to take military action against an aggressor to recommend the admission of new Members; ¿ono make recommendations in cases of breach of peace Effects? States cannot take reservations after the have accepted the treaty; The text of the Convention was adopted by the United Nations General Assembly on 10 December 1984 and, following ratification by the 20th state party, it came into force on 26 June 1987. Art.5. According to a. the State where the victim died; according to b. the State of the victim; and according to e. the State of the offender. This is calling the Principle of territoriality. to assure the crimes will get punished because if one State cannot judge, others will do it. Universal Jurisdiction Principle: every single crime (major crime) can be judge by a State that has this principle in its system. Geneva Conventions contain this principle too. Objective? Arts. 1-4. + Forthe purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person e This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. . Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. + Noexceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. + Forthe purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. + Each State Party shall make these oftences punishable by appropriate penalties which take into account their grave nature. Objective of the Option Protocol? Adopted by the General Assembly on 18 December 2002 and in force since 22 June 2006. order to prevent torture and other cruel, inhuman or degrading treatment or punishment. Lesson 4: Universal Declaration of Human Rights 8. ICPCR/ICESCR + In the summer of 1947, just after Second World War, human rights stood as the first item of the nation's agenda; adopted by the United Nations General Assembly (10 December 1948, Paris). + The Declaration begins with a preamble consisting of seven paragraphs followed by a statement "proclaiming" the Declaration. Each paragraph sets out a reason for the adoption of the Declaration. - The first paragraph asserts that the recognition of human dignity of all people is the foundation of justice and peace in the world. + The Universal Declaration of Human Rights is a non-binding declaration and it is divided into 2 separates covenants: International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. why the UNHR is so important. Even if the UNHR is a non-binding declaration. > After the end of “WW were human rights popular? After WW!Il, a solid concept of human rights began to be established. Previously they had not been taken into account because there were other problems (slavery, civil and political rights struggle, nationalism) 1. International Covenant on Civil and Political Rights (ICCPR) + The ICCPR based on the Universal Declaration of Human Rights, created in 1966 and «The Corera contains two Optional Protocols: -. The first optional protocol creates an individual complaints mechanism whereby individuals in member States can submit complaints to be reviewed by the Human Rights Committee. |ts rulings under the first optional protocol have created the most complex jurisprudence in the UN intemational human rights law system. 2. The second optional protocol abolishes the death penalty. The US has not Article 7? “The ICCPR does not ban the death penalty and because European Courts have indicated their willingness to expand the meaning of “cruel, inhuman or degrading treatment or punishment ” to include the death penalty, it is understandable that the U.S. would make this reservation to protect itself from the evolving definition and allow changes to come about through legislation (Ash)”. 2. International Covenant on Economic, Social and Cultural Rights (ICESCR) e The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly in 1966, and in force in 1976. - It commits the states parties to work toward the granting of economic, social, and cultural rights to individuals, including labour rights and the right to health, the right to education, and the right to an adequate standard of living. + Health care: means that a basic and adequate health care entitlement should be guaranteed to all citizens and residents of countries ratifying the treaty. Conflicting between rights v. rights; traditions/religion and rights? 1.- Can conflicts arise among human rights? What are, for example, the respective boundaries of a human right? Freedom of religious belief and practice may conflict with non-discrimination norms; freedom of speech may conflict with the protection of minority groups 2.- Can a universal rule be challenged when there ¡is a conflict with an ultimate religious command or violates a long-standing tradition that assures cultural integrity and survival? 2. 1.- Are human rights universal? Human rights are inherent to all human beings solely because of being human 2. 2.- Which is the role played by the following concept: cultural relativism? “There ¡is tension between the universalism of human rights and the relativism of cultural relativism; (...) adherents of the latter tendency say that human rights can only be approached within the context of particular cultural or religious traditions; criticizing the view that human rights are universal and transcultural” (Shaw). 3.- Topics that may collide with human rights international norms? (To , and to clearly see the differences between one culture and others). It can be a risky term: - — The context has to take in count, to understand the traditions and the HHRR. - The traditions can collide with the HHRR. a (part of treaties) might justify their actions by pleading cultural Gender; examples? 1. Circumcision proper known in Muslim countries as sunna (which means traditional), is the mildest but also the rarest form. It involves the removal only of the clitoral prepuce. 2. Excision involves the amputation of the whole clitoris and all or part of the labia minora. 3. Infibulation involves the amputations of the clitoris, the whole labia minora and at least the anterior two thirds and often the whole of the medial part of the labia majora. The 2 sides of the vulva are then stitched together with silk, catgut or thorns and a tiny silver of wood or a reed is inserted to preserve an opening for urine and menstrual blood. The girl's leg are usually bound together from ankle to knee until the wound has healed, which may take up to, at least, 40 days. “torture must not be committed” Religion; examples? Religious traditions may impinge on human rights, and religious leaders may assert the primacy of those traditions over rights. Distinction between freedom of religion and freedom from religion? - Freedom ofreligion is threatened primarily by a State conduct that prohibits public expression of religious belief and sharply restricts practice or ritual. Such conduct may stem from an ideologically secular State, as China, that seeks to limit the role of organized Which kind of intention? - to destroy in whole or in part. Implications? - Is itrelevant the number of victims? - ...a member of a group. Implications? If the Sa is not achieved, can a criminal act amount to genocide? INTENTION IN GENOCIDE IS Preventative: it allows the criminalization of genocide before the perpetrator achieves the destruction of a groul Lesson 6: Crimes against humanity - Term used (or very similar one) at the eighteenth and early nineteenth century (slavery and the slave trade) and during the European colonialism. - Declaration issued in 1915 by the Allied governments condemning the mass killing of Armenians committed by the Ottoman Empire. - International customary law and specific criminal courts. - Crimes against humanity not codified. - The prohibition of crimes against humanity: peremptory norm of international law > 7 ' (in 1947) with the , and with drafting a 'code In 1996, it was defined in the following way: “various inhumane acts, ¡.e., murder, extermination, torture, enslavement, persecution on political, racial, religious or ethnic grounds, institutionalized discrimination, arbitrary deportation or forcible transfer of population, arbitrary imprisonment, rape, enforced prostitution and other inhuman acts committed in a systematic manner or on a laigalseale grounds” (art. 3 of the Statute). Art. 7 RS? > Crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: a) Murder; b) Extermination; c) Enslavement; d) Deportation or forcible transfer of population; e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; f) Torture; 9) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; i) Enforced disappearance of persons; j) The crime of apartheid; k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. “Attack directed against any civilian population' means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; EME nAdcAme? ITSELF (NO SE REFIERE A LO DE ARRIBA, SINO AL CRIMEN MISMO) Objective element? Acts a) to k) > (lo de arriba) a) Murder, b) Extermination... in reckless regard of human life - and to be aware of the risk that his action might bring MENESES may be sufficient. Additional element? Contextual element: awareness of the existence of a widespread or systematic practice (Tadic case: the perpetrator needs to know that there is an attack on the civilian population and his acts are part of the attack). Would isolated and heinous crimes amount to CAH? Is there any protected group? Is it crucial the support of the State or a governmental authority? Impactorthe CAM (Crimes Against Humanity) + Major legal offense. + Individuals who either make or follow state policy can be held accountable by the international community. + Most incidents listed may fall within the scope of “widespread or systematic attacks” characterized by “multiple acts of large-scale violence, carried out in an organized fashion and resulting in numerous victims. Common aspects with genocide? Differences? Lesson 7: War crimes The Hague Conventions of 1899: 1) Convention for the pacific settlement of international disputes; 2) Convention with respect to the laws and customs of war on land; 3) Declaration concerning the prohibition of the use of bullets which can easily expand or change their form inside the human body; 4) Declaration concerning the prohibition of the discharge of projectiles and explosives from balloons or by other new analogous methods; and 5) Declaration concerning the prohibition of the use of projectiles with the sole object to spread asphyxiating poisonous gases. : The Conference intended to improve the 1899 conventions, renewing the 1899 declarations, and drafting a new convention on the laws and customs of maritime warfare. Geneva Convention on the wounded and sick adopted in 1864, 1906 and 1929 (now known as: the first Geneva Convention protects wounded and sick soldiers on land during war). Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention (now known as: the second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war). Prisoners of War Convention of 1929 (now known as: the third Geneva Convention applies to prisoners of war). The Fourth Geneva Convention of 1949: civilians. - Article 3, common to the four Geneva Conventions (non-international armed conflicts). - — Additional protocols | and ll (1977) Definition? Categories? For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; Unit 3: Protecting human rights from different perspectives - Lesson 9: The role of State in protection of human rights - Lesson 10: Regional protection of human rights - Lesson 11: International courts Lesson 9: The role of State in protection of human rights States can consider these treaties not enough ambitious to cover the protection of HR and that's the reason why they take part in other measures. Ex: US didn't subscribe to the Convention regarding Rights of Women because they thought their Domestic Law was better. A good way of resolving some crimes and conflicts regarding a State, like the Apartheid in South Africa or the genocide committed in Rwanda, is doing a RECONCILIATION between both parts and sides in the conflict and the FORGIVENESS, regarding also the true remorse or regrets of the perpetrators. Internally by subscribing treaties and measures the states are willing to protect HR. Measures/strategies? - Establishing a constitutional model in which all human rights are protected is not an easy task. - Relevant legislation, effective control over state institutions such as the law enforcement agencies and efforts on the part of numerous other state organs. + Alegislative power: chosen by free elections held at reasonable intervals under conditions which ensure in practice the free expression of the opinion of the electors in the choice of their representatives. - The legislative body should legislate in compliance with international human rights commitments. + Ajudiciary power: protecting the human rights of individuals and groups against arbitrary legislative power and guarantees effective remedies and fair trial. + Anexecutive power: that does not abuse discretionary power and seeks to promote the enjoyment of human rights by all under its jurisdiction. Codes of conduct: for specific professions and individuals stating how they should behave in specific situations to make sure that state institutions follow HHRR. For specific groups of officials or certain professions, directly addressing those individuals who are subject to demands (for example: that they torture people or commit other forms of human rights violations). + Examples: The 1979 UN Code of Conduct for Law Enforcement Officials, which sets rules of conduct for police and penitentiary staff, inter alia, in order to prevent torture of prisoners. National human rights institutions Bodies, authorities or organizations performing general and specific functions in the protection and promotion of human rights. Objective? To provide the checks and balances that ensure the optimal functioning of the rule of law. + They are different from NGOS in that constitutions or governments have often given them legal competence to protect and promote human rights. — Many modern democracies have established the positions of ombudsmen > An important figure in the State is the Ombudsmen, who is in charge of defending the people's rights. + The mandates of national human rights institutions are wide-ranging and varied: the preparation of advisory reports; drawing the government's attention to situations of human rights violations... was set up by the Government of National Unity The conflict during this period resulted in violence and human rights abuses from all sides. No section of society escaped these abuses. These trials were made to listen to the victims and help the population advance and leave the past behind so they could move forward. South African Apartheid: Black Africans separated from the White ones and abused. Their HR were denied. This conflict ended up in violence and HR abuses from both sides. No section of society escaped these abuses. Other tools: Gacaca trials The Gacaca court took place in Rwanda after the Genocide occurred in which tutsis were slaughtered and established in 2001. when between 800,000 and 1,000,000 Rwandans, mostly Tutsi, were slaughtered. By 2000, approximately 120,000 alleged genocidaires were crammed into Rwanda's prisons and communal jails. From December 1996 to December 2006, the courts managed to try about 10,000 suspects (Human Rights Watch 2004, 18): at that rate it would take another 110 years to prosecute all the prisoners. Take into account that the Gacaca system wants to achieve "truth, justice and reconciliation *;. Many people were involved in the perpetration of those crimes. Tribunal was not able to judge every single individual + Universal jurisdiction principle. > based in international crimes, any court from any + The doctrine of universal jurisdiction allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states. | + - Principle of territoriality > MEA] According to a. the State where the victim died; : JU to b. the State of the victim; and according to e. the State of the offender. This is calling the , to assure the crimes will get punished because if one State cannot judge, others will doit. Certain crimes are so egregious that they constitute crimes against humanity and can therefore be prosecuted in any court in the world Universal Jurisdiction Principle: Prinston Principles define what the Universal Jurisdiction principle is. Principle of Universal Justice: is about judging intemational crimes and this principle has been contained in international norms and also in national ones. If a state has recognized this principle, that state is going to be able to judge international crimes through the application of this Universal J Jurisdiction Principle. Why is this like that? Because if the crimes are more connected to one particular state, the Universal Jurisdiction doesn't want to interfere in that. The Universal Jurisdiction only interferes when nobody's doing anything and then somebody has to do somehting. EX: Spain with Pinochet. Requirements? The concept is not new, though states have shown an increasing willingness to enlarge the zone of their jurisdiction and to prosecute or extradite those in high places. Positive 8 negative outcomes? Universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction. 2. Universal jurisdiction may be exercised by a competent and ordinary judicial body of any state in order to Council of Europe Objectives to protect: + The right to life The right to a fair hearing, The right to respect for private and family life Freedom of expression Freedom of thought, conscience and religion The protection of property. Prohibits: torture and inhuman or degrading treatment... How are those basic rights being protected? AA Court of Human Rights: (Belongs to the Council of Europe, For example, a Venezuelan woman has suffered a violation of her HHRR when she was in Iceland, as Iceland is a Member State of the Council of Europe, that woman can ask for justice. Now an individual is able to lodge an application before the court, in case the individual considers that his/her rights have been violated. The individual can denounce that one state, or a group of states are violating her/his rights. Not only States can inform the court about what is going on but also individuals. Ex: a Syrian immigrant can denounce. In this regard it is not relevant the nationality of the victim, it's really about denouncing that a state that has subscribed a treaty has ignored its content, no matter who and no matter in which conditions. Also, the state has had to subscribe the Convention on European Human Rights, otherwise it doesn't work. Doesn't work individuals against individuals, since they don't subscribe to treaties. You are not able to make a general complaint. You have to be able to denounce that situation in the territory where the rights have been violated and if justice has not been provided you are able to lodge an application to the European Court of HR. You cannot go directly to this court; you first have to search for solutions in your country. lt has to be linked to a HR violation regarding a freedom or right contained in the ECHHRR. You cannot complain about a violation of other legal instruments that do not refer to the ECHHRR. European Union as a whole, as a national organization has subscribed the European Convention of HR so when the treaty of Lisbon entered into force, at that moment the European Union as a whole has become a member of the Council of Europe. This means that the European Union can be sued. The Council of Europe and the European Union: different roles, shared values + The Council of Europe and the European Union share the same fundamental values — human rights, democracy and the rule of law — but are separate entities which perform different, yet complementary, roles. , held in Washington, D.C., from October 1889 to April 1890; Members? Nineteen of the 35 OAS Member States have signed the Protocol and 16 have ratified and among those we can highlight that the UE is an observer. This organization was considered such, when the charter of the OAS was signed in Colombia in 1948. Institutions designed specifically for human rights protection and promotion: + — The Inter-American Commission on Human Rights is an autonomous organ; represents all of the member States of the OAS. It has 7 members who act independently, without representing any particular country (elected by the General Assembly of the OAS). + The right to juridical personality + The right to life + The right to humane treatment + The right of every person not to be subject to slavery or to involuntary servitude + The right to personal liberty + Theright to a fair trial... + Torture or cruel, inhuman, or degrading punishment; + Reestablishment of the death penalty in those countries that have abolished it; + Physical, sexual, and psychological violence and discrimination against women; + Forced disappearance; and, discrimination against persons with disabilities. *Not all the Member States of the OAS have ratified all the treaties. To ocn Menor St The commission is in charge of promoting and respect for fulfillment of basic HR, the ones contained in International Treaties encouraged by this organization. One of its functions is go to countries, in order to carry out investigations about what is occurring there and to prepare the appropriate reports regarding situations in a country in which HR at a certain point were denied. When the Commission finds out that this is happening, the Commission will implement precautionary measures or provisional ones before the Inter-American Court in order to control what is going on and then a sentence will be issued. Another important issue: if | am an individual located in a country that is part of this IO, and i find out that a violation is taking place, ¡ can inform the commission or a group of people or organizations can inform the Commission about what is going on. The Commission will make the appropriate investigations. 2. Against Member States of the OAS. And because their actions, omissions or by their acquiescence. The commission is in charge of promoting and respect or fulfillment of basic HR, the ones contained in International Treaties encouraged by this organization. One of its functions is go to countries, ¡in order to carry out investigations about what is occurring there and to prepare the appropriate reports regarding situations in a country in which HR at a certain point were denied. When the Commission finds out that this is happening, the Commission will implement precautionary measures or provisional ones before the Inter-American Court in order to control what is going on and then a sentence will be issued. Controversial aspects of the IMT: + Existed the belief that not all is fair in war and that there is no justification for cruelty. + War criminals had to be punished to guard against future war atrocities. + Those who opposed the IMT claimed that justice could not be served whenever the victor tried the vanquished. Outcome of the Nuremberg trials Von Papen, Fritzsche among others were found not guilty on any counts; some received prison terms ranging from ten years to life; other were sentenced to death by hanging. The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity, even by a sovereign against his own citizens, gradually emerged from the Nuremberg principles affirmed by the United Nations. They were the first tribunals were violators of international law were held responsible for their crimes. They also recognized individual accountability and rejected historically used defenses based on state sovereignty. These principles of international law recognized in the Nuremberg Charter and Judgments were later affirmed in a resolution by the UN General Assembly. Legal sources? +. Treaties: Hague Conventions of 1899 and 1907, the Kellogg- Briand Pact of 1928, the Geneva Prisoner of War, Red Cross and Protection of Civilian Conventions of 1929 and 1949; + Prohibitions common to the vast majority of penal codes employed in civilized States were utilized. + Customary or common international legal concepts governing humanitarian views of warfare. Impact of the IMT? + The Charter of the IMT and the ensuing judgment at Nurember: ven when no specific treaty provisions exist precisely defining the crime and sanctions to be applied. + The IMT greatly expanded international law by its final affirmation that individuals could be held criminally responsible for their roles in the planning and waging of a war of aggression. - On December 11, 1946 the General Assembly affirmed a resolution officially recognizing the principles of international law as enumerated by the Charter of the International Military Tribunal and the Nuremberg judgment. + The judgment at Nuremberg clarified the UN position for the future that international law does prohibit aggressive warfare and that a breach of this international concept can lead to serious sanctions against individual offenders. January 1946, Douglas MacArthur, Supreme Commander for the Allied Powers, approved the Tokyo Charter declaring the following: Art. 2, composition of the Trials. Art. 5, the crimes. Art. 15, course of trial proceeding. Outcomes of the Tokyo trials + The United States exercised far more control and influence over the Tokyo trials than at Nuremberg. + 7 defendants were sentenced to death by hanging, 16 to life imprisonment, 1 to 20 years imprisonment, and 1 to seven years imprisonment. + Emperor Hirohito was not indicted or called as a witness by the Tokyo Tribunal. + Bythe 1950s, most of the Tokyo defendants sentenced to terms of imprisonment had been paroled. Yugoslavia. Once they finished with their main purpose, they disappear. Geographical limitation: to Yugoslavia itself and its territory. Temporal limitation: only this court will be tried crimes committed from 1991 onwards. So, the ones committed before 1991, nothing to deal with them. Hague, Netherlands: is the location where the tribunals are located. Statute of the ICTY Everyone will be responsible for their acts. First mention in the Bill of Rights. No person shall be tried twice for the same crime. ICTY may not conduct tribunals in absentia. They will judge the people in the tribunal not in their absence. Trial in absentia is a criminal proceeding in a court of law in which the person who is subject to it is not physically present at those proceedings. Anatomy of the ICTY 3 organs: the Prosecutor, an adjudicative organ (the Chambers) and a Secretariat (the Registry). o The SC appoints the Prosecutor +. Most of the defendants have been Serbs + Tadic was the first defendant over whom the Tribunal obtained custody. + The ICTY has not investigated every perpetrator of offenses within its jurisdiction and the SC never intended to do so. + Domestic authorities have failed to arrest, and transfer accused individuals or respect requests for primacy and have refused to produce evidence. + The Tribunal has produced some significant advancements in the substance and implementation of international criminal law. The indictments and jurisprudence have highlighted the role of sexual violence in the Balkan conflict. The ICTY found rape a form of torture. : in Rwanda and the neighbor countries. only the crimes committed in 1994. Statute of the ICTR: And same basic ideas as the ICTY, like that death penalty is not going to be implemented. from the victims of the crimes, as the Tribunals were located in Tanzania and in Hague. That's why the Gacaca trials were built, to judge a lot of other perpetrators not so important. criminal justice system, producing a substantial body of jurisprudence on genocide, crimes against humanity, war crimes, as well as forms of individual and superior responsibility. + The ICC's 18 judges are elected by the Assembly of States Parties + They elect, from among themselves, the ICC President and two Vice-Presidents, who head the Court. + Pre-Trial judges (generally 3 judges per case) + Decide if there is enough evidence for a case to go to trial + Issue arrest warrants or summonses to appeal. + Preserve evidence, protect suspects, and safeguard information affecting national security. + Guarantee the rights of all persons during the investigation phase, including suspects, victims and witnesses. + Grant protection measures for victims and witnesses. Trial judges (generally 3 judges per case): + Decide if there is enough evidence to prove beyond a reasonable doubt that the accused is guilty as charged. + Sentence those found guilty and pronounce the sentence in public. + Order reparation to victims, including restitution, compensation and rehabilitation. Appeals judges (five judges): + Confirm, reverse or amend a decision on guilt or innocence or on the sentence and, if necessary, order a new trial before a different Trial Chamber. + Ensure that the conviction was not materially affected by errors or by unfaimess of proceedings. + Ensure the sentence is proportionate to the crimes. + Confirm, reverse or amend an order for reparations. + Revise the final judgment of conviction or the sentence The victims + Victims can seek reparation for the harm that they have suffered. + The Trial Chamber may order a convicted person to pay reparations to the victims of the crimes of which the person was found guilty through the Trust Fund of Victims. + The Court may award reparations on an individual and/or collective basis ARGUE WHY WHAT'S OCCURRED IN CAMBODIA WAS A GENOCIDE>ARTICLE 2 GENOCIDE CONVENTION/ELEMENTS... CAN ICC JUDGE THAT CRIME> REGIONAL COURTS THAT HAVE BEEN CREATED IN CHARGE OF ACCORDING HUMAN RIGHTS> INTER AMERICAN COURT OF HHRR AND THE EUROPEAN COURT OF HHRR WHICH ARE THE DIFFERENT PRINCIPLES THAT CAN BE TAKEN INTO ACCOUNT WHEN DETERMINING THAT A STATE IS ABLE TO EXERCISE ITS JURISDICTION> ACTIVE PERSONALITY/PASSIVE/ UNIVERSAL JURISDICTION PRINCIPLE IMAGINE THAT THE ICC WILL JUDGE WHAT OCCURRED IN SYRIA REGARDING THE CRIME OF AGRESSION. IF YES, WHICH ARE THE REQUIREMENT THAT SHOULD BE FULFIL IN ORDER TO DULY ACTIVATE THE JURISDICTION OF THE COURT. IF NOT, JUSTIFY YOUR ANSWER AND WHY THIS COULDN'T BE POSSIBLE. IF THE ICC IS REALLY ABLE TO JUDGE THOSE CRIME, HOW CAN THE CASE BE REFERRED TO THE ICC> THREE CASES TO TAKE JURISDICTION> STATE PARTY, SECURITY COUNCIL AND MOTU PROPIO. IMAGINE THAT A SANCTION IS REALLY TO BE IMPOSTED BY THE UN AGAINST A STATE. WHICH WILL BE THE PROCEED THAT SHOULD BE FOLLOWED? WHICH WILL BE THE ORGAN IN CHARGE OF JUDGING IT?? > CHAPTER 7 OF THE UN CHARTER AND EVEN DETAILS ABOUT ITS CONTENT IMAGINE THAT MEXICO HAS SUBSCRIBED THE ROME STATUTE AND IS WILLING TO JUDGE A CRIME COMMITTED BY CANADA THAT HAS ALSO SUBSCRIBED THE ROME STATUTE AGAINST THE INDIGENOUS PEOPLE THROUGH THE UNIVERSAL JURISDICTION PRINCIPLE. IS MEXICO ABLE TO INVESTIGATE THOSE CRIMES ACCORDING TO THE MENTION PRINCIPLE? COULD THE ICC JUDGE THE CRIMES COMMITTED IN CANADA? IF MEXICO WAS FINALLY INVESTIGATING THE CASE COULD YOU THINK ABOUT ANOTHER SUPERNATIONAL COURT ABLE TO JUDGE THE CRIMES? THE COURT OF JUSTICE OF THE EU BELONGS TO THE EU THAT AFFECTED ONLY 27 STATES. THE EUROPEAN COURT OF HHRR ANOTHER lO IS ALMOST COVERING A 50 STATES INCLUDES MANY STATES. ILLEGAL IMMIGRANT PEOPLE, CIVILIANS, WHO DON'T TAKE PART IN AWAR> SOME IMMIGRANTS ARE COMING FROM MARROCO TO SPAIN BUT WE ARE NOT IN A WAER PERIOD, THOSE IMMIGRANTS ARE PROTECTED BY THE FOUR GENEVA CVENTIONS? > NO BECAUSE WE ARE NOT IN A WAR TIME. IS NOT A VIOLATIONS OF GENEVA CONVENTIONS [18:12, 16/06/2020] Estefi UEM: Ok mira basicamente lo que entiendo es los crimenes internacionales, que son Los crimenes de guerra establecidos en la convencion de ginebra El genocidio La tortura Los crimenes en contra de la humanidad. Los primeros tres si son binding, cada uno tiene una convencion o tratado especifico que los regula y en ellos se establece que es obligatorio el enjuiciamiento de personas que cometene estos crimenes. Para que se enjuicie bajo la convencion de ginebra debe existir un conflicto o guerra intemacional (si se cometen crimenes de guerra en una guerra civil NO se puede aplicar esta convencion) Para que se enjuicie bajo la convencion del genocidio, el perpetrador debe cometer un acto de genocidio en contra de estos 4 especificos grupos por su 1. Nacionalidad 2. Religion 3. Raza 4. Etnia. Cuando hah genocidio entre oposiciones politicas (por ejemplo los de la izquierda contra los de la derecha y se mueren 20,000 personas) NO aplica la convencion de genocidio porque las oposiciones politicas no están incluidas en esos 4 grupos especificos que te mencione. Para enjuiciar bajo la convencion de tortura (que es un crimen que produce daño fisico y psicologico) El estado donde ocurre el acto de tortura debera ser parte de la convencion de tortura. La nacionalidad del perpetrador debe ser parte del trata de tortura O si el perpetrador se encuentra en territorio de un pais que es prte del tratado, podra ser enjuiciado. Todos los estados parte de este tratadoo deben prevenir la tortura y estan obligados a enjuiciar a los perpetradores. Estos tres tratados son obligatorios. [O sea el ICC pueden intervenir en esos crimenees que te comente ademas del terrorismo y el piracy The term “universal jurisdiction” refers to the idea that a national court may prosecute individuals for serious crimes against international law — such as crimes against humanity, war crimes, genocide, and torture — based on the principle that such crimes harm the international community or international order itself, which individual States may act to protect. Generally, universal jurisdiction is invoked when other, traditional bases of criminal jurisdiction are not available, for example: the defendant is not a national of the State, the defendant did not commit a crime in that State's territory or against its nationals, or the State's own national interests are not adversely affected. El ICC si puede ejercer su jurisdicción porque ellos actuan bajo el principio de complementary (no se como se dice en español) que es cuando el ICC decide enjuiciar a alguien que cometió un acto en un país que es miembro del estatuto, pero este pais (en este caso Brasil) no puede o no quiere enjuiciar al perpetrador. * debes revisar si brasil ratifico el tratado o convenio o estatuto del ICC. * el ICC no esta en la obligacion de enjuiciar este caso porque es un crimen en contra de la humanidad, acordate que en este tipo de crimenes el enjuiciamiento es optativo, no es una obligación no hay un deber de prosecution.