End-Semester Assessments (Online), May 2021 Paper 10.2: Human Rights, International Humanitarian and Refugee Law Ans 1 (a) The Internationa Bill of Human Rights comprises of the: 4. Universal Declaration of Human Rights, 1948 (UDHER). 2. Intemational Covenant on Civil and Political Rights (ICCPR) and Optional Protocols (0s) land itto the ICCPR. 3. Intemational Covenant on Economic, Social and Cultural Rights (ICESCR) and the Optional Protocol (OP) to the ICESCR. ‘The UDHR has been integrated into many national constitutions and domestic legal frameworks, despite the fact that tis not legally binding. As international treaties, the ICESCR and ICCPR are binding for ratifying countries, and both establish routine procedures for monitoring compliance. They impose certain legal duties while providing the mechanisms to deal with complaints regarding violation of these Covenants recer (Onenavionnusamion ‘At 212), ICCPR mentions that fa right isnot already provided for under national law, each state party undertakes to ‘take the necessary steps" to adopt laws/other measures requisite to give effect to, these rights, thereby pushing for the immediate application ofthese rights. ‘Art. 213) provides that rights violation has to be accompanied by a suitable remedy, Inadition 10 legislative and judicial remedies, this includes a comprehensive set of measures involving information, edueation, monitoring and control mechanisms on part ofthe executive, ‘The operative part of the ICCPR can be found after Article 27, which provides for the ‘establishment of the Human Rights (HR) committee with two mandates as provided under Ast. 40 ~ 42; to Jook into periodic reports as well as establish an inter-state complaintrmechanism. The H8 Committe is an entity constituted within the parameters of the ICCPR, with independent experts from across the worlds functions include: 4+ the creation of periodic reports + aninter-state complaint mechanism + conclation methods + individual complaint mechanism ReporrinG PRoceouRe Aticle 40(1) provides greater impetus to ICCPR being mandatory and obligatory for all countries that are party to it, State parties undertake to submit elaborate reports on the measures adopted, and on the progress made regarding not just a set of rights at one time but rights over 3 period of time. This used to be a tedious tack and involved going through ‘every country’s background and progress regarding each ICCPR Article. However, as per the Simplified Reporting Procedure, 2018, the Human Rights (HR) Committee now prepares alist of issues for the State to respond to instead of requiring State reports on every state's progress on each article, Inomouat CompiawsT MecHansn unDeR OP (1896)To ICCPR ‘To receive and consider communication from individuals claiming to be victims of violations of rights, a State has to become party tothe OP for its citizens to use the individual complaint mechanism, As per Art. 1 and 2, tis step can be resorted to only ater all domestic remedies have been exhausted prior to approaching the Human Rights Committee © Ark. 3 provides the circumstances when a complaint may be inadmissible: if i i anonymous, an abuse of the right of submission or incompatible with provisions of the cera Asper Art. 5, the HR Committee would not consider any communication unless itis certain that the complaint is not already being examined as part of any other parallel International investigation, Crucially, rt, 10 provides that OP tothe ICCPR extends to all states partytoitwithout any limitations/ exceptions. The fact thatthe OP allows for no reservations may be the reason why it constitutes a separate document from the ICCPR.‘The HR Committee is empowered to consider any complaint submitted to ity an individual 6r group of individuals (NGOs ete), subject to Its jurisdiction, who claim to be victims of Violations of any of the ICCPR rights, and have exhausted all local remedies. The Committee brings this to the attention ofthe State party concerned. Within 6 months, the State is under an obligation to submit wittenstatements/explanations as well asthe remedial steps that it has taken to address the situation, The Committee then examines the casein private, there is no provision for any oral hearings, and forwards its views to the individual and the State Pary concerned, along with providing the UN General Assembly with a summary of Its activitis under the Protocol, Although, the HR Committee's views are not legally binding states usually adhere to them, Conctusion Fewer countries are Integrated into OP | than into the ICCPR. Separate mechanisms ensure that partes are not dissuaded to join the ICCPR due to obligations imposed by the individual complaint mechanism, ‘The frst mechanism for implementation ofthe ICCPR isprovided in Art 2, which envisages 2 «domestic mechanism forthe implementation and enforcement of human rights. The second level of implementation inthe international context. If human rights ae violated, individual complaint mechanism/oeriodic reports can_draw attention of the HR Committee at the international level (Articles 40, 41,42, ICCPR and Article 5 of OP | tothe ICCPR) (OF Ito the ICCPR (1989) provides for the elimination of death penalty 2s a punishment, and requires each party to undertake the necessary measures required to abolish it. tide 2 of the Protocol prohibits any resewation to OP Il except those made atthe time of accession hich provide forthe use of capital punishment in war to convict for serious offences of a military nature. OP toIceEscR The OP pertains tothe main covenant insofar as only a party to the main covenant can be 3 party tothe OP. It provides the mechanism to assess any complaints based on violations of‘economic, social and cultural rights protected under the ICESCR. The supervision tasks have been entrusted toan Expert Committee on Economic Social and Cultural Rights. ‘A complaint can be submitted by individuals or groups to the Committee if their economic, social and cultural rights have been violated by a State party. ‘Three mechanisms to address violations under the OP are |) owiouatcomPuanr mecuanisin (Art. 1~6) This is similar to OP Ito the ICCPR - communication can be made by or on behalf of groups of individuals, including NGOs ete, There are some constraints on ‘admissibility inthis protocol in addition to those provided under OP Ito ICCPR, The ‘complaints under this OP are inadmissible it not submitted within one year of exhausting all domesticremedies, unless sufficient cause forthe delay can be showin, itthey are “manifestly il-founded, not sufficiently substantiated or exclusively based ‘on reports disseminated by mass media,” Article 7, OP 1 tothe ICESCR discusses the possibilty of friendly settlement” between the complainant and the state i) renstare commuaner mccHanisw (Act. 10) This mechanism can be used by States to make a complaint about ICESCR violations by another state, although this inter-state complaint mechanism has not been used soar Ji) Irquinyeaecuanisa (Art 11) Art. 11 concerns an innovative aspect ofthis OP (since individual and inter-state complaints are also broadly part ofthe ICCPR). The inquiry procedure includes State parties’ express recognition of the authority of the Committee on Economic Social ‘and Cultural Rights for the purpose of inquires. If the Committee receives information of grave violations or if it notices the same (suo motu via newspapers etc), it shall invite the concemed state party to provide an explanation/response ‘without waiting forthe periodic reports. Itcan designate members to look into this specifically, and to make a visit to the site of violations. The findings of this Committee are then sent to the State party with recommendations, and the Stateparty has to respond within 6 months. They may require the inclusion of the ‘emedial measures taken by the state partes within thelr responses. ‘Ans 1 (b) Reservations, Understandings and Declarations permit a country to become a party to an international treaty in a contingent and qualified fachion. A declaration is an undertaking, Which does not mocify the impact of any provision greatly tis akin toa clarification whereas reservation is more fundamental in its impact For instance, all reservations india has made 10 the ICCPR modify the working of the provision in a way that aligns with India’s interests and point of view. PROS — Through reservations, specific states can exempt themselves from particular obligations state parties would otherwise be expected to be in compliance with. Reservations tohuman rights treaties are widely prevalent. They can be a desirable means toaccommodate diverse cultural, political and religious values, CONS — Reservations can also be perceived as undermining the universal character and applicability of human rights if countries are given the option of opting out of th ‘obligations Liberal democracies that adopt these treaties and covenants often make the most reservations. It may be argued that countries that are no liberal democracies and donot take human rights seriously have no intention of complying with these treaties anyway. Eric Neumayer has written an article about the human rights treaties that have reservations and the fact that large democracies such as USA and India have more reservations than other nations Exavivits oF RESERUATIONS In 1984, 46 out of 127 states which were partes to the ICCPR, entered 150 reservations of lfering significance to accepting their obligations under the Covenant. (© For instance, india has made a reservation to Article 1 (1) of the ICCPR regarding the tight to self determination, india has noted that this should only be understood in @ strict sense Le, self datermination against colonial rule. Any other interpretation ‘would be repugnant to the Indian State India has also made a reservation to Article 9(5) ofthe ICCPR, on arbitrary detention Which provides for compensation in such cases, India argues that only the rights under Article 22 of the Indian Constitution are relevant in this respect.[As per General Comment 24 by the Human Rights Committee, from 1994 onwards, any reservations made to the ICCPR should be subject to the approval of the Committee. The Committee would assess whether the reservation is aligned with the tenor of the Covenant. ‘This assumes significance for nations that were formed later, such as South Sudan. Ane2 Fonwarion oF Specs Counrs/TABUNALS ‘The UN Charter’ Article 41 (Chapter Vil] empowers the Security Council to establish special courts to try anyone accused of serious human rights breaches. A special tribunal has the advantage of allowing for beter investigation and witness participation Such Tribunals ensure a more concentrated investigation and tril because they are expressly set up fora speci set of human rights violations pertaining toa particular occurrence or place. The predecessors for the Special Tribunal include the International Military Tribunal at Nuremberg, the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian taw it) in the ‘Territory of Rwands (ICTR) and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of IML in the Territory of the Former Yugoslavia (ICTY ‘These Tribunals investigated genocides, war crimes and crimes against humanity. their ‘experiences provide us useful lessons to take away in ascertaining the functions ofthe Special Intemational Tribunal in the present case. ‘The International Criminal Tribunal for Rwanda ICTR) was established to aidin the restoration ‘and maintenance of peace as well as national reconciliation by prosecuting those guilty for {genocide and other international law violations which occurred in Rwanda in 1994, This was helpful since restricting foreign aid to nations tke Rwanda would not have been in the interests of the local populace, and this provided a mechanism to punish human rights abusers, Thus, the Tribunal inthe present case too isa useful mechanism to hold the guilty ‘accountable without making the local populations bear the costs,© One of the most salient challenges to the universality ofthese human rights, i to ensure that they donot inscribe @ Western, white man’s standard of rights asa neutral standard, and impose it on populations without regard to thelr contexts and communities. Another challenge isto accommodate the rights of internally displaced persons, ethnic groups of national minorities, with different cultural practices and legal norms than mainstream communities. IvTeRNATIONAL HunANITARAN Law (IHL) Relativist arguments can frequently legitimize violence against women by relying on certain specific cultures. This fs also an issue that is relevant for IHL since rape and violence against women soften used as teror tactics during war-This may be an issue of clash between the relativists and universalists since violence against women, despite being endemic to many cultures, is expressly prohibited under the Geneva Convention. (© Apart from tha, the cultural elatvist argument does not apply as strongly to IHL. as it doesto human rights since IL constitutes wholesalerules which apply to every aspect of armed conflict IL rules are more standardised in thelr application, and universal In their character than human rights norms. They also have @ larger degree of acceptance across cultures Ans a(A) Immooucron ‘The UN Commission on Human Rights adopted the “Paris Principles in 1992, which required that countries which were party to international human rights conventions take domestic legislative measures to implement Human Rights. The principles emphasised 4 yardstcks for the effectiveness ofthese national human rights institutions © independence due to operational and legal autonomy, financial autonomy, (© independent cismissal and appointment procedurespluralism of composition. ‘Thus, the Government of India enacted the Protection of Human Rights Act (PHRA), 1993. The National Human Rights Commission (NHRC) was set up under this statute and meant to monitorand protect human rights as well as educate people regarding them. Section 2(4) of the PHRA defines human rights toinclude “rights relating to life, liberty, equality and dignity cof the individual guaranteed by the Constitution or embodied inthe international Covenants and enforceable by courtsin Indi.” Inowenoence snon ue Govennvent Section 3 mentions the composition of the NHRC, constituted by the Central Govt. and Section 4 outlines the appointment procedure by 2 Selection Committee. NHRC ‘members are drawn from the existing opposition and executive, This is unbalanced since it has more members from the ruling party and only 2 members from the ‘opposition. Ths perhaps one of the reasons forthe criticisms of NHAC for shying away from cases with political elements, Many complaints before the NHRC are dismissed even before the'r preliminary hearings. It Is also funded by the government, and is therefore dependent on it. There have been cals for making NHRC financially autonomous. ‘The term of the members has been reduced from 5 to3 years, whichis nat particularly conducive for implementation of human rights since there is not just a lack of continuity but also difficulty to the government in having to make frequent appointments The statute does nat confer suficent autonomy and power over the NHRC. For its Investigation, the NHRC relies on the CBI as per Section 14 ofthe PHRA The nguiries ‘made by the NHC are not always unbiased because it does not have an independent investigating agency ofits own, The sie of its staff and investigating wing is woefully Inadequate to make effective investigations into numerous cases of human rights Violations. NHRC cannat look at more than 100 casesa year because of ts very limited‘+ As per Section 2, State Human Rights Commissions (HRC) have police/investigating staff recruited by the state government. This not only compromises independence but also neutrality since the officers who conduct investigation are_often_on deputation {and keep changing, compromising continuity) from the very forces, police) accused of violations (eg. custodial deaths. Since they have to retum to these forces it can lead to.a conflict of interest which compromises thelr neutrality \CTONAL ConsTRANT ‘+ -Asper Section 36 of the PHA, the NHRC cannot inquire into matters pending before State HRCS oF any other Commission such as the National Commission for Women, ‘+ There is also a imitation period for one year from the date of commission of the alleged act, after which NHRC or SHRCs cannot inquire into the matter. This delay may be condoned, but it stil constitutes a statutory lacuna. ' Itoes not have the power to investigate Human Rights violations with respect to the armed forces. it can only send queries and come back with recommendations. ‘ts suo motu inquiries are largely through media reports, which means that it misses ‘out on most ground-level cases that the media fails to cover. Conctusion: There isa need to diversify the membership of the NHRC, and give it more teeth, ‘autonomy and independence. ‘Ans a(8) |) Newspaper report of abuse in juvenile home [As per Section 12(a) of the Protection of Human Rights Act, 1993, which refersto the powers and functions of the NHRC, the Commission has the power to inquire suo motu into any complaint of violation of human rights or negligence in the prevention of such 2 violation by 2 public servant. ‘Thus, the NHRCean take sua motu cognizance ofthe abuse in the juvenile home basedon the newspaper report. will have all powers of a Civil Court while inquiring into this complaint.1) Petition before NHRC in case of custodial torture and death. [As per Section 12[a) ofthe Protection of Human Rights Act, 1993 (PHRA), which refers tothe powers and functions of the NHRC, the Commission has the power to inquire on a petition ‘resented to it by a victim or by any person the victim's behalf, ft pertains toany complaint ‘of violation of human rights or negligence inthe prevention of such a violation by a public servant, Further, there were Guidelines issued in 1997 which required custodial deaths and ‘encounter kilings tobe reported to NHRC within 24 hours. ‘Therefore, a petition in the case of custodial torture and death will be inquired into by the NHBC as it squarely fits the ambit ofits power and functions. lil) A Habeas Corpus case before the Supreme Court of india [As per Section 12(b) of the PHRA, the NHRC can intervene in any proceeding involving any allegation of violation ot human rights pending before a court with the approval of such court Since 2 habeas corpus petition evidently pertains to the right to personal liberty, the NHRC ‘anintervene in the matter with the approval ofthe Supreme Court, Iu) Report of excesses committed and unprovoked killing of 3 persons under the ‘Armed Forces Special Powers Act, 1958. In this case, the powers of the NHRC ae particularly weak. The NHRC does not have the power {0 inquire in case of acts committed by armed forces that it exercises for other human rights violations, Section 19 of the PHRA provides the specific procedure to be followed in this regard It can only send queries and seek information from the Central Government regarding armed forces. If it receives information or a report from the government, it can only make recommendations to the goverment. It then publishes its Report along with its recommendations as well as action taken by the Government based on these recommendations. Thus, in the present case it will publish a report highlighting the excesses committed by the armed forces, The copy ofthis Report willbe provided to the petitioner or his representative