Accountability for genocide and other gross human rights violations: the need for an integrated and victim-based transitional justice

The Khmer Rouge under their leader Saloth Sar (“Pol Pot”) were in power in Cambodia between April 1975 and January 1979.1 They came into control of the country after a long and brutal civil war2 an...

Activists in international courts: Backlash, funding, and strategy in international legal mobilization

Economic Sanctions Against Human Rights Violations

Human rights can be defined in many ways within an array of different intellectual paradigms. In the most general sense human rights are universal entitlements that apply equally to all human beings. Human rights are meant to represent and preserve the minimal requirements for human dignity. Although basic human rights (life, security, personal liberty, etc.) can be exercised and violated in any number of ways, the idea of “human rights” usually refers specifically to the relationships between individuals and states. That is, states have the responsibility to protect, promote, and enforce human rights, and states are in a unique position to violate human rights as well. The legal instruments that define international human rights law today have their origins in the Nuremberg Trials, the formation of the United Nations, and the realization that what had happened in the death camps of Nazi Germany should be positively prohibited in international law. Scholars and practitioners of human rights often differentiate between positive rights (things that states are required to provide, such as food, shelter, education, etc.) and negative rights (things that states are prohibited from doing, such as torture, unlawful imprisonment, discrimination, etc.). Latin America has an important and unique connection to the international human rights regime. Human rights norms were first defined and adopted in the context of the Cold War. Especially after the Cuban Revolution in 1959, Latin America was a central battlefield for the Cold War. Much of the region was overwhelmed by violent conflict between revolutionary guerrillas and the counterinsurgent forces of Latin American militaries. In many cases the Latin American militaries assumed dictatorial powers in order to carry out their counterinsurgency plans. And in every instance, Latin American states (governments) committed gross human rights violations against the citizens of those states. In many cases the atrocities committed by Latin American military regimes during this period were among the worst cases of human rights abuse in the post–World War II era. New models for response emerged in the region (e.g., grassroots human rights organizations) that were emulated in other parts of the world. Moreover, as the Cold War ended and these Latin American regimes began to transition to democracy, they developed the first modern tools of transitional justice (e.g., truth commissions and trials for the former rulers), and in many cases Latin American governments undertook serious constitutional reform, incorporating international human rights norms into their own constitutional law. Because of this, there is a highly developed human rights culture in most of Latin America. The international human rights regime functions in Latin America through the United Nations and the inter-American human rights system, including the American Convention on Human Rights, the Inter-American Commission on Human Rights, and the Inter-American Court of Human Rights.

Reflections on BDS

The nature of the relationship between international humanitarian law and international human rights law remains a vexed one. In recent years, human rights lawyers and activists have sought to apply human rights norms to military conduct in international and internal conflicts, and during belligerent occupations. With varying degrees of success, complainants have brought their cases before international tribunals, and to national courts able to apply international human rights standards. This development has occurred largely because forums exist to hear human rights claims, whereas they do not for persons claiming individual redress for violations of international humanitarian law. However, human rights norms have also been seen as more restrictive: as placing greater constraints on States' freedom to conduct hostilities, preventively detain, and administer occupied territories. It is for this reason that some States have resisted attempts to extend the reach of international human rights law into areas traditionally seen as governed by international humanitarian law. This chapter argues that principles have now developed to govern the relationship between the two bodies of law. However, their application to different situations remains a work-in-progress and controversies remain. In particular, despite valient efforts, it remains unclear what what happens in situations where the two bodies of law cannot be read together? There are only few rules of norm-conflict resolution in international law, all of which have limited application in the context of the relationship between international humanitarian law and human rights law. Most inconsistencies between the rules of the two bodies of law are not true conflicts at all, as they do not require States to conduct themselves in different ways. It is simply that international humanitarian law is the more permissive system. In such situations, to argue that the two bodies of law are ‘complementary and mutually reinforcing’ is to do little more than issue a policy prescription. In reality, in such cases States have to make a choice as regards which rules they wish to comply (a choice which is likely to be a political one) and take the consequences. There are fundamental incompatibilities between international humanitarian law and human rights law, not only as regards discrete rules but in their theoretical bases. Attempts can be made to reconcile them, to avoid conflicts, but they can only be provisional and on a case-by-case basis. The legal tools available cannot always provide an answer. Absent legislation, conflicts will remain. And in a world of States with differing interests and values, the adoption of new rules governing armed conflict and belligerent occupation will be difficult, if not impossible. One difference between the two bodies of rules, in particular, remains fundamental. Despite developments over past decades which are said to indicate a ‘humanization of humanitarian law’, international humanitarian law, in contrast to human rights law, is not based on an individual rights paradigm. It is this difference, even excluding the differences in the substantive protections accorded individuals under the two bodies of law, which will ensure that individuals continue to bring complaints regarding their treatment in situations of armed conflict before human rights bodies. And even if human rights bodies take the view that States’ human rights obligations in situations of armed conflict are to be interpreted using the yardstick of international humanitarian law, their interpretations of humanitarian law are likely to differ from lawyers advising States’ defence ministries and armed forces, who are likely to continue to be unhappy with such trespasses into what they see as their chasse gardee.

The Inter- American Court of Human Rights has developed an interpretative approach in recent years that considers all international instruments that deliver protection to human beings as part of the same legal system, that is, the corpus juris of international human rights law. Consequently, different branches of international law, such as international humanitarian law, refugee law, consular relations and – of course – human rights law, have been interpreted and implemented as part of the same undivided and unique legal system that provides protection to individuals against arbitrariness and potential abuses attributable to States. This paper critically analyzes and deconstructs the interpretative methods used by the Inter-American Court of Human Rights in its contentious and advisory jurisdictions. It focuses on how this Court has broadened or expanded the scope of protection afforded in international human rights instruments and norms by interpreting them in light of the principle pro homine, which places the human person at the centre of international law. In this sense, this paper endeavours to contribute to a better understanding of international human rights law by means of unveiling the interpretative steps taken by the Inter-American Court in its efforts towards the humanization of contemporary international law.

One of the most significant developments in the jurisprudence of modern international criminal law is the determination of the International Criminal Tribunal for Rwanda (ICTR), in the Akayesu case...

After Russia's invasion of Ukraine, especially from February 24, 2022, serious violations of international humanitarian law by Russian forces have come to light. These include obvious war crimes in at least 20 towns in Ukraine. Russian soldiers carried out extrajudicial executions in the Kyiv region, killed civilians during mass shelling attacks in Kharkiv and deliberately shelled the Donetsk Regional Academic Drama Theater in Mariupol. The Russian invasion of Ukraine led to massive violations of human rights in the modern international arena. Russia's attack on Ukraine caused large-scale destruction, displacement of the civilian population, and countless casualties. The main goal of the study is to show the extent of these destructions and numerous violations of international human rights and international humanitarian law committed by the Russians. The research is based on the analysis of articles, reports and opinions of various international organizations, public figures, Ukrainian and foreign mass media. The results of this article show how the armed attack of the Russian Federation led to serious, massive violations of international humanitarian law with catastrophic consequences for the realization of almost all human rights by the citizens of Ukraine. On the part of the aggressor's army, a huge number of facts have been recorded that indicate violations of the rules of warfare. The convincing evidence of models of violations of the right to the life of the Ukrainian people, property rights, including mass destruction of civil infrastructure have been fixed. There were indicated a lot of examples of violations of the prohibition of torture and ill-treatment, including gender-based sexual violence and war; violation of the right to liberty and personal integrity, including kidnapping and arbitrary or solitary imprisonment. The article shows how human rights were violated in Ukraine and how it was perceived by the international community.

Corruption, being the abuse of public office for private or political gain, currently receives an increasing amount of attention from scholars and practitioners in various disciplines, including law. While the phenomenon is as old as mankind, the last fifteen years saw the rise of many anti-corruption treaties, aimed at criminalisation, prevention and cooperation. At the same time, there seems to be relatively little work done on corruption in the field of human rights law or international criminal law. This book argues that these areas of law can certainly contribute to fighting corruption, by giving a human face to both victims and perpetrators. The study commences with Part A, containing a broader analysis of the 'multi-headed monster' named corruption, looking into issues of definition, measurement, and consequences. This is followed by an overview of the content and functioning of the global and regional anti-corruption treaties that are currently in force, including the United Nations Convention Against Corruption. Hereafter, Part B considers whether or not types of corruption can be qualified as a violation of internationally recognised human rights, enshrined in the International Bill of Rights. It is argued that corruption, especially in the public sector, can have a severe negative impact upon both civil and political rights, as well as upon economic, social and cultural rights. Moreover, the study examines to what extent this is recognised by the human rights supervisory mechanisms at the global and regional level. The concluding observations and case law of the human rights treaty bodies are scrutinised, as well as the outcomes of the various Special Procedures and the Universal Periodic Review System of the UN Human Rights Council. At the regional level, the case law of the European Court of Human Rights, the Inter-American Commission and Court of Human Rights, as well as the cases of the African Commission on Human and Peoples' Rights are discussed. Furthermore, Part C of the book aims to view corruption from the angle of international criminal law, inter alia by examining whether or not types of corruption can be qualified as a crime under international criminal law. In this context, the question is answered whether corruption can fall under the current provisions of the Rome Statute of the International Criminal Court de lege lata. Also, the various possibilities offered by international criminal law de lege ferenda to combat corruption are touched upon. Finally, Part D draws conclusions and formulates recommendations as to how human rights law and international criminal law can best be used to address corruption. This includes a draft General Comment on corruption and human rights, with the purpose of providing a starting point for further reflection on the topic.

The Inter-American Court of Human Rights (IACtHR) is a pioneer in international human rights law in developing jurisprudence against impunity. Since the 1970s, the American continent has been prone to political and policymaking processes to ensure impunity for those responsible for serious human rights violations. This impunity has aimed at, among others, enforcing amnesty and self-amnesty laws or implementing procedural institutions (such as the ne bis in idem principle) that intend to prevent the investigation and punishment of those responsible for serious human rights violations. The paper examines the jurisprudence of the IACtHR to determine some fundamental lines of argument that seek to combat impunity in cases of serious human rights violations. To this end, it emphasizes the particularities of the duty to investigate established by the IACtHR, the development of jus cogens in relation to these serious situations, and the scope of reparations. From a comparative perspective, it also highlights the need for other international Courts, such as the European Court of Human Rights, to assume these jurisprudential approaches to combat impunity in cases of serious violations.

Although international human rights law establishes the individual right to receive reparations, collective reparations have been considered a common response from judicial and non-judicial bodies to reparations for victims of gross violations of human rights. As such, collective reparations have been awarded within the field of international human rights law, international criminal law and transitional justice. Yet the concept, content and scope of collective reparations are rather unspecified. To date, neither the judicial nor the non-judicial bodies that have granted this kind of reparations have ever defined them.This book presents the first study on collective reparations. It aims to shed light on the legal framework, content and scope of collective reparations, and to the relationship between collective reparations and the individual right to reparations. In order to do so, the book analyses specific case law from the Inter-American Court of Human Rights, the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia. Additionally, the practices of non-judicial mechanisms were examined, specifically those of the Peruvian and Moroccan Truth Commissions and of two mass claims compensation commissions (the United Nations Compensation Commission and the Eritrea-Ethiopia Claims Commission). Finally, it provides an overview of the challenges that collective reparations present to the fields of international human rights law and international criminal law, including in their implementation.

This paper analyzes the issue of treaties over time and the interpretations of the Inter-American Court of Human Rights in this context. Parts 1 and 2 introduce the elements of treaty interpretation in general international law, providing criteria for the application of the evolutionary approach to treaty interpretation, the debate between the application of evolutive interpretation and the use of subsequent conduct. Part 3 addresses the issue of fragmentation in international human rights law, and through the case law of the Inter-American Court of Human Rights, provides evidence for the application of the rules of general international law to interpret the American Convention on Human Rights. Finally, conclusions are extracted on the basis of the case law analyzed, contrasting the Court’s application of the American Convention over time, the conclusions of the International Law Commission Reports on the Fragmentation of International Law in 2008, and the preliminary conclusions of the Study Group on Subsequent Agreements and Subsequent Practice concerning treaty interpretation and the issue of the passage of time.

The paper reviews whether Indigenous Peoples’ worldview has di-rectly influenced or not the decisions made by the Inter-American Court of Human Rights related exclusively to their human and environmental rights.In the first section of the investigation, it is described the main aspects to take into consideration regarding Indigenous Peoples and international law; i.e. conceptualization of the term Indigenous Peoples, its evolution in interna-tional law, and their core rights. Then, the text will deal with the relationship between Human Rights Law and International Environmental Law, through the discussion of how human rights have been included in the context of inter-national environmental law. Afterwards, the study will explore the close bond that exists between indigenous peoples and the environment, by relating to the different conceptions of its features according to them. Finally, the paper will analyse the decisions taken by the Inter-American Court of Human Rights in cases related to indigenous peoples’ environmental issues. The conclusion will lead to determine the contribution of human rights and international environ-mental law to solve indigenous peoples’controversies and vice versa

Questions remain open as to the legal nature of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of International Humanitarian Law (BPG), and this chapter examines what legal quality is attached to the propositions enunciated therein. It is obvious at first glance that the adoption of the BPG could not, as such, produce binding international law. The Commission on Human Rights enjoys no decision-making power. The BPG attempts to regulate all the consequences that may flow from the commission of grave violations of human rights and international humanitarian law (IHL), without drawing any distinctions between criminal law and other which one might call civil aspects in as much as they affect the status of individual victims of such violations. Keywords: BPG; human rights; InternationalLaw Commission (ILC); international humanitarian law (IHL)