Human rights are entitlements that are inherent to all human beings irrespective of their sex, age, religion, nationality, sexuality, place of residence, language, colour of skin or any other characteristic.
Human rights are universal (applicable to all human beings) and inalienable (they should not be taken away except in speciﬁc circumstances aﬅer due process; for example, liberty may be curtailed if an individual has been found guilty of a crime). The events of the Second World War led to the prioritising of human rights and the Universal Declaration of Human Rights (UDHR) in 1948 – the basis for the European Convention on Human Rights of 1950. The UDHR is widely acknowledged to be the foundation of international human-rights law. It is important to understand the tension between the concept of universal and inalienable rights on the one hand, and the sovereignty of the state on the other.
Origins and development of international law and institutions
Law is a requirement of an ordered society. There must be rules to regulate the behaviour of individuals. Normally, enforcement of those rules is required.
International law is essentially the rules governing relationships between states. There is considerable debate about the concept of international law, as law implies some sort of compulsion and higher authority, but in the international system there is no compulsion, because states are sovereign. International law is not codiﬁed – written out in one place – but there are a number of sources, including:
• treaties and conventions between states
• international custom – such as diplomatic immunity
• the general principles of law recognised by civilised nations – things that are illegal in national
law are probably illegal in international law
• judicial decisions
• legal writings.
Of particular signiﬁcance in the development of international law on human rights are the Nuremberg and Tokyo tribunals aﬅer the Second World War.
International Court of Justice
The International Court of Justice was founded in 1945 as the main arbitration organ of the United Nations. Based in The Hague in the Netherlands, the court adjudicates on disputes between member states of the United Nations and to make judgements on issues brought to it by UN organisations and specialist agencies.
International Criminal Court
Also based in The Hague, the International Criminal Court is a separate court to the ICJ and is not a part of the UN family of organisations. The ICC is responsible for investigating and putting on trial individuals who have been accused of some of the most horriﬁc and heinous crimes in the world – genocide, war crimes and crimes against humanity. In the future, the crime of aggression will also come under the remit of this court. The ICC is a permanent court that replaces the ad hoc tribunals that have oﬅen been used to bring prosecutions against suspected war criminals and despots, for example aﬅer the wars in the former Yugoslavia and the genocide of Rwanda. The standing nature of the ICC is meant to ensure that all tyrants who may have considered committing crimes will be deterred from doing so. The ICC was set up by the 1998 Rome Statute and came into force in 2002. The aim of the court is to work in addition to national courts, not to replace them. The ICC only tries a case where a national court system has not been willing or able to bring an individual to justice; the ICC is a court of last resort. 124 states have signed up to the Rome Statute but some countries are not bound by the full requirements of the court, including the USA, China, India and Israel. In October 2016, in a blow to the ICC, South Africa, Burundi and the Gambia announced that they were going to withdraw from the Rome Statute; other African countries may follow. This is because there is a perception among African countries that the ICC is biased against Africans. Most of the ICC’s investigations and trials have been of Africans, and arrest warrants have only ever been issued against Africans. According to some African governments, this makes the ICC look like a colonial organisation. Russia also looks likely to remove its signature from the Rome Statute, perhaps predictably as it may face punishment over the annexation of Crimea and its actions in the Syrian Civil War.
Special UN tribunals
There have been two notable UN international tribunals that were the forerunners to the International Criminal Court. Following atrocities and war crimes in the former Yugoslavia and the African state of Rwanda, the UN set up criminal tribunals or courts to punish the perpetrators. The International Criminal Tribunal for the former Yugoslavia was set up in 1993 to bring to justice those responsible for genocide, war crimes and crimes against humanity in the Balkans in the 1990s, including the genocide committed at Srebrenica. Likewise, the International Criminal Tribunal for Rwanda was set up as a response to the genocide and mass killings of 1994. The tribunal indicted 93 individuals, of whom 61 were sentenced for crimes.
European Court of Human Rights (ECHR)
The Council of Europe (not to be confused with the Council of the European Union or the European Council) was set up in 1949 in response to the human-rights abuses of the Holocaust. The ECHR aims to promote human rights, democracy and the rule of law in Europe. It currently has 47 member states (the only European country not a member is Belarus). All member states are signatories to the European Convention on Human Rights (draﬅed in 1950), which is upheld by the European Court of Human Rights (ECHR) based in Strasbourg, France. The Council of Europe is not related to the European Union and nor is the ECHR (not to be confused with the Court of Justice of the European Union (ECJ). The Court, which came into being in 1959, is a court of last resort: individuals or groups who feel that their rights have been breached by a signatory state may appeal to the court to have their case heard if all other legal avenues have been exhausted. While the Court’s rulings are not directly enforceable, all signatory states have agreed under international treaty to uphold the ruling of the Court.
Sources of authority, including the 1948 Universal Declaration of Human Rights
In the immediate aﬅermath of the Second World War there were two international tribunals to deal with those responsible for genocide, war crimes and crimes against humanity in Europe by the Nazis and in the Far East by the Japanese. More commonly known as the Nuremberg Trials and the Tokyo Trials, these tribunals set the precedent for future war-crimes tribunals – and for the International Criminal Court. Such were the atrocities carried out by both regimes, it was felt that the perpetrators must be brought to justice. These trials were unprecedented because they were genuine international trials, not trials in one state under the legal system of one state. They can be considered controversial because they prosecuted individuals for crimes that were not a crime at the time they were committed. Nonetheless, the view that some crimes are so abhorrent and heinous that they must be punished has been the thinking behind the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the ICC. The 1948 Universal Declaration of Human Rights (UDHR) set out for the ﬁrst time a set of rights that are applicable to all human beings. The UDHR is a remarkable achievement in that it was the ﬁrst time that statesmen and women from diﬀerent political, legal and cultural backgrounds agreed on a common set of fundamental rights that apply to all human beings. Although not legally binding, the declaration has been a signiﬁcant document in developing human rights around the world. It led to a collection of covenants that seek to underpin human rights in the world. The UDHR has also been followed by further covenants, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both adopted in 1966.
Not all states signed up to the UDHR in 1948. Most notably, Saudi Arabia refused to sign on the grounds that the UDHR was incompatible with Islamic law. Saudi Arabia does not allow citizens to renounce their religion which would be considered a breach of their human rights as guaranteed by the UDHR. The Cairo Declaration on Human Rights in Islam, signed in 1990, was an attempt by Islamic countries to give their view on human rights from an Islamic perspective. Freedom of religion is a key tension between the Cairo Declaration and the UDHR.