Massive Human Rights Research Articles

Impunity Rises from the Ashes?: The Extent of the Rome Statute's Jurisdiction in the Event of State Succession

The International Criminal Court’s (ICC) deterrence effect in situations of armed conflict extends only to the reach of its jurisdiction.1 State succession, which often involves massive human rights violations,2 casts doubt on the jurisdiction of the Court and the protection it offers because of questions regarding the continuity of treaty obligations, including those under the Rome Statute, formerly binding upon the predecessor State. This Note argues that customary international law supports the continued application of the Rome Statute in instances of State succession because the treaty articulates the necessary human rights and humanitarian law principles to fall under the customary international law rule for the continuation of human rights and humanitarian law treaties. Two basic types of international law exist: treaties and customary international law.3 Treaties arise out of express negotiations between State parties, resulting in certain rights and obligations to which the parties agree.4 Human rights and humanitarian treaties obligate State parties to protect individuals living under those treaties.5 Customary international law, on the other hand, arises not from express negotiations between sovereign States,6 but rather from the practice of nations followed out of a sense of legal obligation.7 However, customary international law—as with the law of treaties—imposes human rights and humanitarian obligations

From Kosovo to Syria: the transformation of NATO Secretaries General's discourse on military humanitarian intervention

ABSTRACTThe civil war in Syria began approximately four years ago and has resulted in the murder of thousands by the Assad regime and the flight of millions to neighbouring countries. The international community's reluctance to intervene to halt the ongoing massive human rights violations has been explained in geopolitical, military-strategic, diplomatic, and legal terms. Yet, what does this imply normatively? And does the weakening of the military humanitarian intervention (MHI) norm support arguments regarding the poverty of constructivist security studies? This article examines these two questions and demonstrates the weakness of the MHI norm, especially in light of the new interpretations and meanings which authoritative agents ascribe to its key conceptual components in changing strategic, social and political contexts. Yet, the article employs constructivist tools to explore the endogenous challenges to the MHI norm while proving the added value of constructivist security research, not only for explaining “norm evolution” but also “norm decline”. Taking discourse as a reflection of social norms and an arena for encouraging new intersubjective interpretations of concepts, it examines the above assertions by analysing the discourse of NATO Secretaries General from 1999 (Kosovo crisis) to today.

National Prosecutions as the Main Remedy in Cases of Massive Human Rights Violations: An Assessment of the Approach of the European Court of Human Rights

National Prosecutions as the Main Remedy in Cases of Massive Human Rights Violations: An Assessment of the Approach of the European Court of Human Rights

Investigations, Prosecutions and Amnesties Under Articles 2 & 3 of the European Convention on Human Rights

There is clear jurisprudence on the procedural obligations on states to investigate alleged violations of Articles 2 and 3 of the European Convention on Human Rights. However, the European Court of Human Rights (the Court) has not yet been asked to rule directly on the status of an amnesty law under the Convention. It has, however, made some general comments on amnesties in a small number of cases. Drawing on this case law, together with the Court’s judgments on the procedural obligations arising from Articles 2 and 3, the report explores the circumstances in which the Court could find amnesties to be permissible. This report argues that the Court has developed a bifurcated approach, whereby amnesties that prevent prosecutions for violations, such as torture or ‘massive human rights violations’ that can also be considered international crimes are subject to greater scrutiny than amnesties that cover only Convention violations. Nonetheless, the report argues that the Court has left open the possibility that amnesties even for the most serious offences could be acceptable in some circumstances, such as a reconciliation process and/or a form of compensation to the victims. This report is produced as part of AHRC-funded project on Amnesties, Prosecutions, and the Public Interest in the Northern Ireland Transition.

Classifying Cultural and Physical Destruction: Are Modern Historical and Current Human Rights Violations in China Violations of International Criminal Law?

Modern (Communist) China has a chequered history with regard to the commission of and accountability for mass violence and human rights violations. Campaigns by the Communist Party have resulted in horrific mass crimes such as killings, starvation, torture, beatings, and persecution. While such conduct undoubtedly amount to violations of human rights, there are many examples from China’s recent past and in China today where situations of mass human rights violations, as well as mass atrocities, could also constitute violations of international criminal law (war crimes, crimes against humanity or genocide). This paper will assess three examples in modern China’s history and present to determine whether they amount to international crimes: the Cultural Revolution, the 1989 Tiananmen Square Massacre, and human trafficking (including the consequential crimes of forced marriage and forced prostitution); and offer a brief overview of what accountability steps China should take with regard to these crimes.

Feminist Research in Transitional Justice Studies: Navigating Silences and Disruptions in the Field

This paper will analyse what it takes to conduct feminist and sensitive research in countries that have seen mass human rights violations. Transitional justice research involves critical examination of difficult topics which raises a number of ethical and methodological issues for both the participants and the researchers. Although empirical research has been a facet of the studies produced in the field, researchers’ accounts of undertaking research in often politically sensitive environments is largely missing from published books and research reports. This paper is informed by personal experiences of doing research in wartime rape in the ethnically and politically divided country of Bosnia and Herzegovina. I argue that the researcher’s profile and positionality directly affects the fieldwork and that fieldwork is a dialogical process which is structured by the researcher and the wider political processes in the country.

Archaeology of State Terrorism: Exploring the Territorial Strategies of Clandestine Repression in Argentina (1976–1983)

In Latin America, the Archaeology of the Contemporary Past focuses on investigation of the massive human rights violations perpetrated by the authoritarian regimes that ruled the countries in this region between 1960s and 1980s. These military governments instituted terror regimes in order to achieve a de-politicization of civil society through fear. To ensure their success, they displayed the most extreme forms of repression, including imprisonment, forced exile, murder and the disappearance of thousands of political opponents. This paper examines the regional particularities of the clandestine repression in Argentina, specifically in the military jurisdiction known as Area 211, which was subordinated to the II Defense Zone Command. Taking an archaeological and territorial approach, I applied the analysis tools provided by Geographic Information Systems (GIS), combining historical and spatial information to investigate the modes by which repressive systems administered the bodies of their victims.

Corporate Criminal Liability: Is the ATCA Dead in the Water?

Holding a corporation directly liable for its actions, given the corporate structure, is the best way to prevent human rights abuses. Holding corporations directly liable is much simpler than attempting to strengthen the capacity of weak states in order to increase the regulation of corporations. If corporations were held directly liable for human rights abuses then it would no longer be profitable for them to engage in such behavior. As they are the ones perpetrating such violations under this scenario they are in the best position to stop the behavior. While corporations clearly deserve some sort of liability for their mass human rights violations it is not clear that such liability should fall under the ACTA, given the fact that judges have been careful to limit jurisdiction for ACTA claims.

Book Review: Gravers, M., & Flemming, Y. (Eds.). (2014). Burma/Myanmar—Where now?

Book Review: Gravers, M., & Flemming, Y. (Eds.). (2014). Burma/Myanmar-Where now? Copenhagen, Denmark: Nordic Institute of Asian Studies. ISBN: 978-87-7694-112-3 -XIV. 447 pages.Myanmar has been ruled by an authoritarian military regime for more than half a century. The Southeast Asian country gained sad notoriety through political repression, massive human rights abuses, armed conflicts, socioeconomic decline, and extreme poverty. This began to change only in 2011 when the junta replaced itself with a quasi-civilian government in order to seek ways out of its political and economic isolation. Thereafter, the country embarked on a new political course of opening up and political liberalization. While the international community has euphorically celebrated Myanmar's self-initiated roadmap to democratization, new and old problems endanger the transitional process. In response to this, Mikael Gravers, an anthropologist and Myanmar scholar, and Flemming Ytzen, a journalist with a long-lasting Burma engagement, put together this ambitious volume taking stock of the current political situation with a thematic focus on conflict resolution, peace building, and democratization. Bringing together the perspectives of 21 academics, journalists, and practitioners, the purpose of this book is to address the attainments and prospects of the transitional process so far, as well as the future challenges and threats lying ahead of the conflict-torn country.The book features three parts and a brief conclusive chapter. Part I, entitled Order and Change (pp. 23-139), guides the reader through the most salient events, developments, and changes of the country's ongoing transition from a military dictatorship to a civil government with all its institutional consequences. Ytzen and Gravers draw a lively picture of the controversial elections of 2012 as well as the upcoming polls of 2015. This is followed by an overview of the altering role of the media and newly emerging space for political engagement. This section also looks at the main actors and key political figures, their interests and strategies, most notably Aung San Suu Kyi and her National League for Democracy (NLD), President Thein Sein, the military-affiliated Union Solidarity and Development Party (USDP), and the various ethnic minority parties, but also societal forces such as the Tatmadaw (military of the union government), the bureaucracy, the Buddhist Sangha, business interests, and (armed) ethnic groups. Michael Lidauer provides detailed insights into the new constitution and the political administrative system enshrined in it. He highlights the need for more decentralization, constitutional amendments, and corresponding changes in the election system on the way towards a new and more democratic state in Myanmar. Charles Petrie and Ashley South briefly sketch the country's civil society landscape and elucidate the potential role NGOs may play for peace building and democratization. More critically, referring to Myanmar's geostrategic position in the region, Bertil Lintner argues that reforms are embedded in and driven by geopolitical power games and interests that do not necessarily serve the democratic transition in the first place. Subsequently, Josine Legene and Flemming Ytzen describe how global and regional players aligned their foreign policy towards Myanmar throughout its turbulent history. Beyond politics, major social issues are addressed by Marie Ditlevsen, who sheds light on current developments in health and education, while Jessica Harriden elaborates on the situation of women who suffered greatly because of decades of armed conflict and violence. Anna Roberts shows that despite recent legal improvements, the human rights situation remains precarious and has even aggravated in the face of flaring anti-Muslim violence.With almost two hundred pages, Part II, entitled Challenges to Unity (pp. 142- 338), represents the analytical heart of this volume. …

Victim's Justice in the Aftermath of Political Violence: Why Do Countries Award Reparations?

Governments often award reparations to victims of mass human rights violations (HRVs) committed during political violence. Although international law requires that governments compensate victims of such violations, some states award reparations while others do not. This paper provides the first global analysis of the determinants of state reparations awards to victims of HRVs. Analyses consider the effects of multiple factors on reparations awards, whether a country has used other types of transitional justice mechanisms, economic development, and regime type. Spatial and rare events logit analyses on a new database for all countries between 1969 and 2006 suggest that wealthy, democratic countries as well as governments that already employ other transitional justice mechanisms are more likely to actually pay reparations to victims than are other governments.

Rape as a weapon of war: Combating sexual violence and impunity in the Democratic Republic of the Congo, and the way forward

Rape is both a consequence and a weapon of war, as may be seen throughout the crisis in the Democratic Republic of the Congo. The United Nations Joint Human Rights Office recently published a report that noted the necessity of moving these issues to the forefront of the international political agenda. Sexual violence in the region has led to mass human rights breaches that require the attention of the international community. With impunity plaguing the social and judicial structure of the DRC, combating this issue is more challenging. This is due to a number of obstacles: a lack of resources within the judicial system; the stigmatisation of victims (social and cultural); the costs of legal proceedings; and a lack of protection for victims. As such, the article examines sexual violence committed by military officers and rebel groups in the DRC in order to outline the failures of the domestic system. It also provides a brief historical overview of sexual violence in the DRC. The article uses Baaz and Stern's perception of 'rape as a weapon of war' to analyse the lack of protection mechanisms for victims and witnesses of sexual violence in the region. In doing so, the article examines the obstacles to fighting sexual violence in armed conflict in the DRC (stigmatisation and shame, and costs of legal proceedings). Finally, the article suggests that a mixed chamber or hybrid court be created in order to prosecute perpetrators of the worst human rights violations.

The United Nation’s Responsibility to Protect Civilians from Massive Human Rights Violations in Light of the Intervention in the Libyan Crisis in 2011

The international community was criticized when it decided to intervene, as in Somalia, Bosnia and Kosovo, and when it did not intervene as in Rwanda. It was against this background that Kofi Annan argued, in September 1999, in the defense of the individual sovereignty over state sovereignty. He asked, ‘if humanitarian intervention is an unacceptable attack on sovereignty, how can we respond to cases as Rwanda or Srebrenica?’In this sense, with the recovery of Francis Deng’s 1996 “sovereignty as responsibility†concept, it would be possible to abrogate the categorical imperative of traditional sovereignty, allowing the international community to intervene when the state fails in its responsibility to protect its people against genocide, ethnic cleansing, crimes of war and against humanity.The study looks at the creation, development and eventual adoption of the ‘responsibility to protect’ (R2P) norm, from an idea promulgated in the 1990sto the development of the norm, and to the eventual adoption of a heavily restricted yet poignant principle at the 2005 World Summit. There is considerable debate over the status and scope of the Responsibility to Protect. On balance, most observers and states believe that it remains a political commitment and has not yet acquired legal force.The purpose of this study is to critically examine the UN’s responsibility to protect civilians in light of the intervention in the 2011 Libyan crisis. The responsibility to protect has been central in the discussion of how to deal with the Arab spring revolts that gave rise to civil war in Libya. In Libya, with the help of an UN authorized NATO intervention, the Gaddafi authoritarian regime ended and the former rebel forces are now leading the transitional process. Taking in to account the events in Libya, many have questioned whether the concept of R2P was used not only to protect civilians, but also to fulfill a desire, from the beginning of the mission, for regime change. However, the study argued that it was very difficult to enforce the very intents and objectives of Resolution 1973, because it was obvious enough that Gaddafi was prepared to continue to slaughter his people in a civil war to retain power. Thus, even if some argued that the NATO intervention in Libya acted beyond Resolution 1973, nevertheless, the study strongly argued that the intervening forces have indeed stopped Gaddafi from marching on Benghazi and saved thousands of lives.

Preventing Inaction: The Case for R2P

As a response to Kofi Annan’s 1999 challenge to the global community to reconcile the “twin principles of sovereignty...and fundamental human rights,” the Responsibility to Protect (R2P) doctrine is based upon the rethinking of the sovereignty principle as a responsibility of the state to protect its citizens from human rights violations. Domestic authority is no longer absolute, but rather limited by both human rights principles and the responsibility of a state to protect its citizens. The adoption of the R2P doctrine at the 2005 UN World Summit demonstrated an overwhelming consensus amongst nation-states to prevent and/or put a stop to mass human rights abuses such as genocide, war crimes, ethnic cleansing, and crimes against humanity - with the use of military force when deemed necessary by a legitimate authority such as the United Nations Security Council (UNSC) and the invocation of UN Charter a Chapter VII. The R2P principle places an inherent duty to protect citizens irrespective of geopolitics or agreements between states. Under the doctrine, the international community does not have a choice whether to intervene or not; rather, it has a moral, de facto and de Jude obligation to do so when massive human rights violations occur. The Rwandan genocide demonstrates the need for the codification of not the right to intervene, but rather a responsibility to intervene when faced with the evidence of mass human rights abuses. In the case of Rwanda, the great power interests of the United States and France undermined the mechanisms within the UN for mobilising a coherent military force to prevent genocide and protect civilians. While humanitarian intervention has been tainted by neo-imperialist ambitions, the cost of non-intervention in situations of severe human rights abuses, war, or poverty is morally and intrinsically unjustifiable. This paper will state in no uncertain terms that the international community must come to the realisation that they have a responsibility to intervene if states are unwilling or unable to protect their citizens from human rights abuses. Refusing to respond when presented with unequivocal evidence of mass human rights abuses flies in the face of the R2P doctrine itself. As great power interests continue to expand in emerging economies, geopolitical instability and dissatisfaction with illegitimate regimes motivate civil society driven pushes towards democratisation, the international community must be prepared to fulfill their obligation and Responsibility to Protect (R2P).

Is the Pivot Doomed? The Resilience of America's Strategic ‘Rebalance’

U.S. foreign policy is beset by numerous simultaneous crises. In Syria, the Assad regime continues to commit massive human rights abuses, while Islamic State jihadis are seizing territory in Syria ...

Tragedy Shakes Hands with Testimony: Uruguay's Survivors Act in Antígona oriental

Debates about how to stage, film, narrate (or record in any available media) real-life catastrophe, such as mass human-rights violations or war, tend to center on the simultaneous necessity and inadequacy of any representational form to capture the real event: evidence is needed for political, legal, cultural, and historical purposes, but its framing is always conditioned by whatever a given regime of visibility leaves in or leaves out. All too familiar ethical, political, and representational challenges lurk behind the deployment of media to make visible the experience of real-life survivors—in the case I treat here, women survivors of imprisonment and torture during Uruguay's 1973-85 dictatorship. Consider the risks of revictimizing the protagonists, overwhelming or numbing spectators with images of extreme vulnerability, or, even worse, of inciting voyeuristic or sadistic pleasures in an audience passively “regarding the pain of others”—to recall Susan Sontag's famous last title (2003). Some have argued that testimonial or documentary accounts cannot represent the effects of destruction without courting these perils.

Theoretical Debates on Regional Security Governance

It is the aim of this paper is to explore the role pivotal states play as security providers and what impact they have in particular on regional security governance. The choice to base the analysis at the regional level is due to the relative stability some regions have been able to achieve and the way regional (in)stability can be seen as a sub-set of global governance. The paper will make use of the concept of security governance. Given the growing interaction between national and regional actors in the decision making of regional security governance, a state-centric approach is insufficient as a framework of analysis. Security governance covers threats that have to do with potential or actual violence: terrorism, war and counter insurgency, ethnic cleansing, the spread of weapons of mass destruction, massive human rights violence, and organised crime, as well as issues that have to do with natural disasters: famines, pandemics, cyber warfare, and even financial crises.

Need for Paradigmatic Change in Jurisprudence: A Development Focused Approach in Definition, Application and Benefits of Law

An attempt to justify the need of linking human development affairs with human rights and developing a concept of law as an instrument of enhancing human development is a major thrust of this article. It endeavors to relate law as a regime of governance with human development efforts as a precondition for securing adequate enforcement of international human rights laws. The article argues that 'poverty and ensuing deprivation' is an effect of massive human rights violation by State governments and international bodies. It moves ahead by setting an assumption that the regressive status quo; meticulously preserved and protected by way of anti-equity conventions and laws safeguarding hierarchical structure of society, is a stumbling block to the progressive transformation of the lives of deprived people. It goes on with assertion that no enjoyment of human rights, the liberal rights in particular, becomes possible without breaking the 'vicious cycle of poverty and regressive status quo' by help of rapid development activities targeted to meet the 'threshold condition of development'.

The United Nation’s Responsibility to Protect Civilians from Massive Human Rights Violations in Light of the Intervention in the Libyan Crisis in 2011

The international community was criticized when it decided to intervene, as in Somalia, Bosnia and Kosovo, and when it did not intervene as in Rwanda. It was against this background that Kofi Annan argued, in September 1999, in the defense of the individual sovereignty over state sovereignty. He asked, ‘if humanitarian intervention is an unacceptable attack on sovereignty, how can we respond to cases as Rwanda or Srebrenica?’In this sense, with the recovery of Francis Deng’s 1996 “sovereignty as responsibility†concept, it would be possible to abrogate the categorical imperative of traditional sovereignty, allowing the international community to intervene when the state fails in its responsibility to protect its people against genocide, ethnic cleansing, crimes of war and against humanity.The study looks at the creation, development and eventual adoption of the ‘responsibility to protect’ (R2P) norm, from an idea promulgated in the 1990sto the development of the norm, and to the eventual adoption of a heavily restricted yet poignant principle at the 2005 World Summit. There is considerable debate over the status and scope of the Responsibility to Protect. On balance, most observers and states believe that it remains a political commitment and has not yet acquired legal force.The purpose of this study is to critically examine the UN’s responsibility to protect civilians in light of the intervention in the 2011 Libyan crisis. The responsibility to protect has been central in the discussion of how to deal with the Arab spring revolts that gave rise to civil war in Libya. In Libya, with the help of an UN authorized NATO intervention, the Gaddafi authoritarian regime ended and the former rebel forces are now leading the transitional process. Taking in to account the events in Libya, many have questioned whether the concept of R2P was used not only to protect civilians, but also to fulfill a desire, from the beginning of the mission, for regime change. However, the study argued that it was very difficult to enforce the very intents and objectives of Resolution 1973, because it was obvious enough that Gaddafi was prepared to continue to slaughter his people in a civil war to retain power. Thus, even if some argued that the NATO intervention in Libya acted beyond Resolution 1973, nevertheless, the study strongly argued that the intervening forces have indeed stopped Gaddafi from marching on Benghazi and saved thousands of lives.

The Right to Resist and the Right of Rebellion

The right to resist and the right to rebel have again become relevant as legal problems. Their justifications traditionally derive from natural law, human rights, the principle of the lesser evil or of the social contract. Interpretation of the right to resist expresses the tendencies to the law of people, in particular, the right to self-determination, distinguishing national and international understanding, and underscores the special nature of such right. Also, two-level research of the right to resist should be distinguished research of the right to resist – the first is a debate about the nature character and legislative consolidation of this right, partly focused on preventive-limiting its properties, whereas the second one is updated at the time of social upheaval and legal concerns, and it contains not only the evaluation of the events, but sometimes attempts to justify ex post risk of abuse and original post-legitimation of public authorities. An important condition for the existence of the right to resistance is a legitimate aim. This could be called the internal condition, which is provided by those who implement this right. Other condition (which can be called external) and the base of implementation should recognize certain actions, acts or decisions by public authorities – those that violate human rights are illegal and unfair. At the same time, the purpose and result of the right to resistance may be changes in the public authorities, the termination of abuse of authority and violation of human rights by its agents, return to democratic legal regime or change in the constitutional system, aimed at creating a state of law, as well as in some cases, when combined with the right to selfdetermination, – the achievement of independence. The author of the present paper considers that the right to resist is an individual right, a human right. But the author inclines to the idea of the collective nature of the right to resist implementation, but warns against simply counting the number of persons engaged in it. In other words, it does not matter how many people commit acts, but it does matter how many people support them. Considering the modalities of implementing the right to resist, it should be noted that these forms can be active or passive, expressed in actions directly or indirectly. The right of rebellion is an extreme form of the right to resist, which is carried out in case if the non-violent means of resistance are exhausted or proved ineffective. The conditions (and bases) of the right of rebellion are phenomena, such as the following: (1) massive human rights violations by public authorities (quantitative criterion); (2) systematic human rights violations by public authorities (accumulating criterion); or (3) extraordinary human rights violations by public authorities (criterion by serious, explicit and violent nature of the violation). Ambiguous is an issue of the limits of the right of rebellion, its permission and proportion, as well as whether it is possible to develop a mechanism for exercising this right.

Ethnic Identities And Conflict: Ethnic Conflict Prevention Approach Of European Union

Conflicts between ethnic groups are one of the most destructive and devastating forms of conflicts. In the beginning of the Third millennium the world and humankind are still suffering due to conflicts between ethnic groups. Sudan, Rwanda, Yugoslavia, UK-Northern Ireland, Spain, Sri Lanka, and Turkey are some of current examples of these conflicts that caused mass human rights violation and loss of human lives and strained economy and damaged the environment. Therefore preventing conflicts is an important issue that must be addressed and studied. This paper aims to examine, first, ethnicity, ethnicity making situations, causes and forms of ethnic conflicts. Second, it explores what are the main features of ethnic conflict prevention, what is the conflict prevention approach of EU and how EU functions in conflicts. Finally the study concludes that establishing a minority rights protection system is the most effective and humanitarian way to prevent ethnic conflicts. DOI: 10.5901/jesr.2014.v4n1p27