below is a paper i wrote for my Human Rights class during my last semester in SMU.
its here for everyone to read, to share my thoughts with you,
but please do not ripe them off and pass it as your own work
Copyrighted by Joanne C.
Introduction
Protecting human dignity is the foundation of the ICCPR[1]. However,
despite good intentions set forth in the treaty, there has yet to be an internationally
binding definition to quantify the phrase ‘…inherent dignity of the human
person.’ This has indeed posed many problems in bringing justice to cases of
human rights violations. Henceforth, I will argue that human rights are
ineffective in protecting human dignity. In particular, it has failed to
protect human dignity in two ways. The first is when states violate human
rights through genocide and torture, and the second, when non-state actors violate
human rights through human trafficking.
For this purpose, ‘human dignity’ is defined as the
rights to life and self-determination, the rights to adequate food, water, clothing and shelter to sustain one’s livelihood, the
rights to live without being subjected to constant fear, and the rights to be
free from un-consented infliction of bodily harm that will cause pain and
sufferings. This paper will examine three types of human rights crime in which one
or a combination of these rights are violated.
State’s Violation of Human Rights: Genocide
Genocide denies humans their dignity by infringing their
rights to live without being subjected to constant fear, the rights to be free
from un-consented infliction of bodily harm causing pain and sufferings and
ultimately, the rights to life. The GC[2] is
the foundational treaty that protects against and punishes crimes of genocide.
Particularly, Article II protects four groups of people; national, ethnic,
racial or religious, against killing members of the group, causing them serious
bodily or mental harm, inflicting conditions of life calculated to bring about the
group’s physical detriment in whole or in part. Though some countries have not signed
the treaty, it is customary law and is universally binding, because genocide is
the most extreme form of human rights violation, and is understood as a crime
so fundamentally wrong that can never be justified.
Although the UN[3]
has been somewhat successful in imposing punitive actions against state perpetuators,
two main problems remains to hinder international law from preventing and
stopping genocide from occurring. Firstly, in order to establish a legal case
of genocide, one has to prove intention for a specific purpose to kill. Unfortunately,
proving this mens rea is challenging
as it is difficult to find evidence showing both the intent and act to kill
were simultaneously present. The defense could always be that genocide was not
the intended consequence when the order was given. Secondly, there is the legal
requirement of proving that a group is being killed in whole or in part. This
again, is challenging because there is no unified measurement of ‘whole’ or
‘part’. Hence, often, international lawyers, and even the UN are reluctant to
use the term ‘genocide’ to quantify the crime, even though it appears obvious.
Instead, international players often wait for numbers to increase until a
‘significant’ level before acting, for fear of making any mistake upon intervention.
The result is that such levels are determined subjectively and therefore very
elastic.
Thus, while it is easy to understand and identify genocide,
it is much harder to place it in the human rights context. The vague
definitions in the GC and the lack of a unanimous understanding and
quantification of key terms only make it difficult for human rights tools to
pin down a situation as a fundamental crime and so move to protect human
dignity. Human rights become a pair of blunt scissors that are unable to nip the
problem at its bud. For example, The UN was unable to intervene in time to stop
the Rwanda killings, resulting in a full-fledged genocide, and less than a
decade later, we see history repeating itself in Darfur. How then, can we say that
human rights protects human dignity when we helplessly wait for more and more
people to be robbed of their lives before we say ‘yes, this is a genocide,
let’s do something to stop it’. What is the value of human rights protection
when it cannot compensate and defend the dignity of those ‘more lives’ that
were lost to make up the ‘significant’ number that determines the killings as
genocide?
State’s Violation of Human Rights: Torture
In torture, another human rights crime closely related
to genocide, we find similar problems arising too. Torture strips a person of
his natural self-defense and self-protection mechanism, and subjecting him to
prolonged bodily or mental suffering and pain, through which, transgressing his
rights to be free from un-consented infliction of bodily harm that cause pain
and sufferings and consequently, deprives him of his human dignity. Similar to
genocide, protection against torture is also customary law, and its legal
foundations stems from CAT[4]
which protect persons against severe pain or suffering that is intentionally
inflicted upon him without his consent.
In order to establish a course of action in human
rights against torture, key terms like ‘intention’ and ‘severe’ ought to be
quantified specifically. This again presents great challenges for lawyers as it
is extremely hard to determine intention. In order to prove ‘intention’ it is
required that the perpetrator intended to inflict sufferings and pain onto his
victim through his actions. However, many of these perpetrators have given the
defense that they were acting on the orders of their superior and thus it was
not their own intention to torture the victims. Some have even argued that they
did not know that carrying out these orders amounted to torture. But the most
common defense was that they were forced at gun point to perform such acts. As
such, it is extremely difficult to pin point the intention needed.
Without the presence of binding standard against which
to measure severity, the degree of ‘severity’ of the pain or suffering
inflicted that would qualify as torture has always been a matter of debate.
Pain and suffering experienced varies from persons depending on their tolerance
level. This makes measuring the level of pain difficult, and very much
dependent on subjective value judgments.
Despite the evils of torture, the ‘ticking bomb
torture’ attempts to justify its use. This argument is not without its flaws
however, especially on the issues of where to draw the line that justifies
torture, how one should know that the victim is the one that holds the key to
saving the lives of those at stake, and how much torture inflicted will be
justifiable to extract the needed information out of him.
Once again, we find that human rights, despite its intentions
to protect human dignity, is ineffectively applied in instances of torture to
protect the victim’s dignity. Often not, human rights come in to punish perpetrators
only after the crime has taken place, and even in such situations, there are
many fuzzy lines that make it extremely difficult to prove the case on legal
grounds. Hence, human rights is ineffective in protecting human dignity as it
is only able to intervene after the torture has taken place, and even then, it
is ineffective in bringing justice to the victims. Protection of human dignity
is minimal and damage has been done through the act and cannot be undone.
Non-State Actors’ Violation of Human Rights: Human Trafficking
Lastly, on the issue of human trafficking, human
rights is once again ineffective in protecting human dignity, but for a
different reason. Human trafficking
violates all facets of rights that define human dignity, and protection against
it can be found in two protocols of the CTOC[5],
namely, the protocol to prevent, suppress, and punish trafficking in persons,
especially women and children, and the protocol against the smuggling of
migrants by land, sea and air.
The presence of human trafficking is the result of the
combination of a weak state, corruption, and poverty in the country. Organized
crimes take advantage of such situations and trick these people into being
trafficked for various reasons under the guise of promising them a better future
elsewhere. The vicious cycle of human trafficking continues at a rapid rate due
to the lucrative nature of these transactions, and their increasing demands. The
rate at which the ‘industry’ is blooming is astonishing and the reason why
little has been done to stop it is because human trafficking is carried out by
non-state actors.
This poses a big problem for international law because
unlike state perpetrated genocide and torture the secrecy of human trafficking
operations make it is almost impossible to clearly identify the non-state
actors responsible. The question of
whether the ‘supply’ or ‘demand’ end should be targeted by the law further
aggravates the problem because states are unwilling to shoulder any
responsibility. This leaves the law in a limbo because, international law is only
meant to try and punish state actors, hence not conferred with the power to
bring non-state actors to justice. Also, human rights protection arises from
the state, and since states are reluctant to be held accountable, the law is
unable to grant protection to the victims through the state. The result of this
is the presence of international law proclaiming the protection of human
dignity on paper, but in reality, it is unable to protect the human dignity of
the victims.
Conclusion
From the above discussion, we conclude that human
rights tools are ineffective in protecting human dignity from state, and
non-state actors’ violation of human rights principles. With regards to state
violations, such tools are ineffective due to the lack of binding international
definitions that quantifies key terms essential to their effectiveness in
dealing with such issues. As for violations committed by non-state actors,
human rights tools are ineffective too because human rights law are not meant to
deal with non-state actors. To put forth an analogy, the former is akin to
using a small screwdriver to unscrew a ‘big headed’ screw nail, while the
latter can be thought of as using a ‘+’ screwdriver to unscrew a ‘-‘ screw
nail.
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