The Laws of War - also known as International Humanitarian Law

Fact sheet compiled by the Women's Caucus for Gender Justice

1. Sources and Nature of International Law
2. Customary Law
3. Conventions / Treaties
4. General Principles of Law
5. Opinions of Jurists and Scholars
6. Jus Cogens and Erga Omnes
7. Common vs. Civil Law traditions
8. Hague Law
9. Geneva Conventions of 1949 and Additional Protocols
10. Grave Breaches
11. Other Prohibited Acts and Protections for Women
12. Common Article 3
13. Provisions Relating to Women in Geneva Conventions
14. Other Forms of Accountability and Redress
15. International Crimes, Individual Criminal Responsibility and Universal Jurisdiction
16. Genocide and Crimes against Humanity
17. Human Rights

Sources and Nature of International Law

International Law is understood as the system of rules and principles dealing with the conduct of states and of international organizations and their conduct with each other as well as their relations with natural or judicial persons.

It is somewhat easier to understand the nature of international law if one is familiar with its origins and history in the context of the history of modern western civilization. The concept of a body of law now known as ‘international law’ first arose with the emergence of nation states at the fall of the Holy Roman Empire, circa the late 16^th and early 17^th centuries. More specifically, many point to Peace of Westphalia of 1648, which ended the 30 years war among several European powers and the Holy Roman Empire, as a critical moment in the development of international law. This peace agreement brought to a close a long period of religious wars and introduced a degree of stability and organization in the region that necessitated the formation of diplomatic parameters and modes of foreign relations.

In the beginning International Law was largely influenced by the philosophy of natural law from the 16^th and 17^th centuries which asserted that each state is endowed with certain natural rights, which are the dictates of universal reason. The Dutch philosopher Hugo Grotius was a major proponent of this approach.

In the 19^th century, the positivist approach begin to weigh more heavily as a theory of International law. The positivist approach held that states have consented to be bound by this body of law, either by express consent (treaty) or by implied consent (through the practice of states and the conduct of international relations). The positivist approach was an effort to bring more logic to bear in the conceptualization of international law rather than leaving it to something as mysterious as the dictates of universal reason.

Traditionally, distinctions have been made between Private International Law and Public International Law. Private International Law being concerned with corporate bodies, commerce, anti-trust issues whereas Public International Law concerns relations between states and other entities and the rights and duties of such entities.

IL has evolved in modern times to include relations: a) between states, b) between international organizations and states, c) among the international organizations themselves, d) between states or international organizations and natural and judicial persons (e.g. human rights law).

Article 38 of the statute of the International Court of Justice is considered by many to be the preeminent enunciation or description of what international law is. Article 38 states:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Customary Law

In the hierarchy of sources in international law, customary law is considered the weightiest as it is binding on all states. It is also perhaps the most hotly debated category of international law. Customary law is determined by a variety of factors — among them, a general and consistent practice of states such that it forms a kind of duty in the international legal order. One example of customary law is the policy of not arresting nor asserting judicial jurisdiction over foreign ambassadors. This rule of customary law was later explicitly codified in treaties but pre-existed as a custom or practice in and of itself.

In addition, treaties, normally binding only on the states that are parties to them, can become part of customary law through being widely ratified or followed — as in the case of the Geneva Conventions or the Genocide Convention. "Customary Law" corresponds to Article 38(I)(b) of the statute of the ICJ.

Conventions are those agreements entered into between states setting forth mutual obligations. Some treaties are bilateral — between two countries — and others are multilateral, binding more than two countries. Unless the treaties or agreements have been widely ratified, accepted or followed, they are binding only on the states parties to the agreements. This source of international is the first listed in article 38(I)(a) of the statute of the ICJ.

General Principles of Law

This source of international law includes principles of municipal law commonly found in different states. Examples include the principle of "res judicata" (the thing adjudged). Can include rules and principles widely applied in the major legal systems of the world. Many of the due process protections for criminal proceedings have become part of this source in addition to being codified in conventions or subsumed into customary law. "General Principles" correspond to Article 38(I)(c) of the statute of the ICJ.

Opinions of Jurists and Scholars

The opinions of jurists or scholars have long been considered a source of international law in the sense that the expressed opinions of these ‘experts’ are considered to be an interpretation or an enunciation of the status of international on a given point. Article 38(I)(d) of the statute of the ICJ specifically points to this area as a factor to be considered in determining the content or substance of international law.

Jus Cogens and Erga Omnes

There are certain norms or rules of international law from which there can be no derogation. These are known as jus cogens which are peremptory norms and which cannot be negotiated in any way, including via treaty. Article 53 of the Vienna Convention on the Law of Treaties 1969 defines this category of rules as norms: "accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character"

Examples of rules to which no state would claim exceptions like prohibition of genocide, slavery, piracy; the principle of self-determination

While jus cogens is a category of norm from which no derogation is permitted, erga omnes is a related concept but which pertains more to the rights and obligations on the part of states in the event certain rules are violated.

Thus, obligations erga omnes pertain to the enforceability of norms of international law, the violation of which is deemed to be an offence not only against the state directly affected by the breach, but also against all members of the international community.

Violations which entail an erga omnes obligation include acts of aggression, genocide, slavery and racial discrimination, violations of the right to self-determination and certain basic human rights. Some argue that the safeguarding of the environment, pollution of the atmosphere and the seas are also included in erga omnes obligations.

Thus, jus cogens norms and obligations erga omnes arise out of the belief that some rules or norms are so essential for the protection of fundamental interests of the international community that any breach thereof is considered to affect the international community as a whole.

Common vs. Civil Law traditions

Most national jurisdictions fall into one of two categories of legal organization, civil or common. Whether a system is a civil law or common law system depends largely upon their history and the extent to which they were subject to Roman or Anglo-Saxon influence. Civil law countries — continental Europe and parts of Latin America — are code based and influenced by Roman law, as opposed to common law countries like England, Commonwealth countries, and the U.S. which are based on jurisprudential authority.

This distinction becomes significant in the development of international law and its different components, i.e. treaty or custom, whether it is interpreted in a case by the judiciary in a common law country or encoded in the laws of a civil law country.

The 1907 Hague and 1949 Geneva Conventions and the optional protocols to the Geneva Conventions comprise the core or centerpiece of modern international humanitarian law.

The first attempts at codifying rules of war in international agreements occurred during the 19^th century. The very first Geneva Convention was adopted in 1864 and was intended for the "amelioration of conditions of the wounded of armies in the field." The purpose of such efforts was to limit the effects of armed conflict and to prohibit the use of inhumane methods of warfare. The rules are intended for the protection of those not taking part in the conflict as well as to restrict the means and methods of conducting warfare. Though modern humanitarian law began in the form of treaties, much of it has become accepted as customary law, which apply to all states.

Hague Law

The Hague Conventions were adopted in 1907 and were the second in a series of Hague conferences and discussions related to war and peace, including the 1899 Hague Peace Conference. (The Hague Appeal for Peace in 1999 was held to commemorate the first peace conference and to reinvigorate and unite modern peace movements.)

Hague law generally governs the conduct of belligerents, the parties to a conflict, and sets restrictions on the means of waging war. In addition to the Hague Convention of 1907, there is the Hague Convention for the protection of Cultural Property (1954).

There are other agreements as well which restrict the means of waging war but which are not considered part of the Hague series of treaties. They include the Geneva Protocol of 1925 prohibiting the use of asphyxiating or poisonous gases and bacteriological methods; 1972 Convention on the prohibition of the development, production and stockpiling of biological weapons; 1993 Convention prohibiting development, production, stockpiling and use of chemical weapons; 1995 protocol relating to blinding laser weapons; 1997 Landmines Convention.

Geneva Conventions of 1949 and Additional Protocols

The Four Geneva Conventions adopted in 1949 and their additional protocols adopted in 1977 form the main core of international humanitarian law. Each of the four Conventions is concerned with a different aspect of armed conflict:

• First = relates to the treatment of the sick and wounded on land;
• Second = relates to the sick, wounded and shipwrecked at sea;
• Third = relates to prisoners of war;
• Fourth = relates specifically to civilian non-combatants.

Two Protocols additional were adopted in 1977. The Optional Protocols 1^st and 2^nd were adopted in 1977 to expand upon the protections for civilians in international armed conflict (first additional protocol ) and internal armed conflict (second additional protocol).

Grave Breaches

Each Geneva Convention and the first Additional Protocol contain language affirming certain acts as "grave breaches." For example, in the Fourth Geneva Convention relating to the protection of civilians, the grave breaches of article 147 include:

• wilful killing
• torture or inhuman treatment including biological experiments
• wifully causing great suffering or serious injury to body or health
• unlawful deportation or transfer or unlawful confinement of a protected person
• compelling a protected person to serve in the forces of a hostile Power
• wilfully depriving a protected person of the rights of fair and regular trial
• taking of hostages
• extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly.

Acts belonging to this category of ‘crime’ are accompanied by very specific obligations and responsibilities on the part of states parties to the Conventions. In the event of the commission of any grave breach, the States Parties are obliged to "search for persons alleged to have committed, or to have ordered to be committed" the grave breach and "bring such persons, regardless of their nationality, before its own courts" or to turn such persons over to another State Party for trial.

Other Prohibited Acts and Protections for Women

The majority of the language in the Geneva Conventions and protocols consists of guidelines and rules for militaries or armed forces to follow during armed conflict. Some of these guidelines pertain specifically to the protection and treatment of women and children. Violations of these mandates do not entail the same obligations to prevent or punish as grave breaches do.

For example, article 27 of the Fourth Geneva Convention provides that: "Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." The Convention contains no corresponding obligation to investigate or punish individuals in the event women are failed to be protected. (See chart for additional provisions related to women)

Common Article 3

Article 3 of each of the four Geneva Conventions is the same, hence its name. It applies to internal armed conflicts and is sometimes referred to as a mini-treaty in and of itself.

Common article 3 prohibits the following acts:

• violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
• taking of hostages;
• outrages upon personal dignity, in particular humiliating and degrading treatment;
• the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples

Until the adoption of the second Protocol Additional in 1977, "common article 3" was the only provision in humanitarian law specifically addressed to internal armed conflict. Additional Protocol II expanded this list to include:

• collective punishments
• acts of terrorism
• slavery and the slave trade in all their forms
• pillage
• threats to commit any of the foregoing acts
• outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault

PROVISIONS RELATING TO WOMEN IN GENEVA CONVENTIONS

For a comprehensive explanation of some of the language of international humanitarian law and war crimes institutions, visit crimesofwar.org

Other Forms of Accountability and Redress

Throughout the world the widespread subordination of women differs across society and cultures. Yet, women are economically, socially, politically, legally and culturally disadvantaged compared with the men in similar situations. The disadvantages of women are seen on a local, communal, national, regional and international level. Elite men are seen monopolizing religious, national, legal and international institutions of power. Women, on the other hand, are far off from these arenas, where laws and policies are being constructed and made into a reality.

It is in this context that women’s access to justice and redress is hardly within reach in the traditional, local, national and international courts. In wars and armed conflicts, the majority of the victims and survivors of violence are women. This violence is one of the most heinous violations of human rights, in terms of its scale, the nature of the atrocities and the number of persons affected. Yet history has hardly recorded war crimes against women, even today.

The world has long spoken of rape as an inevitable fact of war — as part of the behavior of the armed forces. But the origins of the systematic practice of rape, why it is rampant in armed conflict situations and its universal but at the same time violent nature needs to be examined. The manifestations of violence, such as of mass rape, sexual slavery and enforced prostitution cannot be understood without attention given to the patriarchal mode of society in general and the domination of men over women in all spheres of public and private life. War is an inherently patriarchal activity, and rape is one of the most extreme expressions of the patriarchal drive toward masculine domination over the women.

Considering the magnitude of the use of sexual violence in war and armed conflict for hundreds of years, it is vital that the international community repeat its commitment to prosecuting rape as a war crime as well as crimes against humanity. There have been numerous studies on the effects and implications of these armed conflicts, new mechanisms had been created to address justice for the survivors and accountability for the perpetrators of war and violence.

One of the challenges facing us today, is reconciling past wartime atrocities as an essential step in ending the cycle of violence during war and in peacetime. Yet violence against women continues unabated, and the justice system and its mechanisms do not respond to the magnitude of the crime committed against women.

Advocacy and Redress

In the past decade there had been a resurgence among women survivors and victims of war demanding justice, accountability, compensation and reparation for the crimes committed against them in the past wars. A classic example of these are the cases of the Asian comfort women who after 50 years of silence on the sexual slavery committed against them by the Japanese Imperial Army, demanded justice and reparations from the Japanese government. The case of the Bangladeshi women who had been raped by the Pakistani soldiers during the civil war of the 70’s have started to identify the war criminals living in London.

There is an ongoing case filed in the US against an Algerian war criminal living in Washington DC. The cases of women from the former Yugoslavia and Rwanda are now brought to the two existing war crimes tribunals. Other women have brought their issues to the ‘Truth Commissions’ set up by different governments in the hope of addressing accountability for the violations committed during those repressive periods.

The numbers of women victimized during wars are far larger than the ones that have seen the light of court houses. What is staggering is the fact that new victims emerge and new forms of violations happened to women, yet the national institutions or even the international mechanisms are not prepared to take these cases to courts. There are too many areas of concerns that are not addressed in the process towards achieving justice. In some instances, there are no laws or legislation for these cases and in most occasions even the women themselves are not ready for such a long drawn out case that may jeopardize their life or that of their families.

Advocacy for women victims of war has become a major initiative among women’s human rights activists in the past decade, and helping women bring their cases to court or making their issues known to the public or demands for state and individual accountability have taken a rapid response among activists. It is in this context that we recognize the different forms of advocacy and how important it is to achieve justice for women victims of violence. In many cases it is through advocacy, that a sense of justice is recognized among survivors, as the legal system is either ineffectual or neglects to address such cases.

Last December 2000, a Women’s International War Crimes Tribunal on Military Sexual Slavery by Japan during the Second World War was organized by women’s organizations, human rights groups and lawyers associations from the victimized countries of Asia, to try the cases of the comfort women under an NGO initiated war crimes tribunal. Being a landmark initiative, it gave itself an orientation as an addendum to the International Military Tribunal of the Far East of 1946, having failed to prosecute the cases of the Asian comfort women.

After the presentation of the indictment of nine countries, the Tokyo Tribunal handed down a Summary of Findings that found Emperor Hirohito guilty of Crimes Against Humanity. The final judgment of the Tokyo Tribunal 2000 will be handed down in September 2001 in the Hague.

This entire initiative has brought a sense of justice to many of the comfort women, especially the 60 women who despite their advanced age were present in Tokyo to give their testimonies. Likewise a Public Hearing on Recent War Crimes was organized to link the same crimes that happened to women 50 years ago to those happening today. Women from different war torn countries came to testify and speak of the horrendous crimes committed against them, and that justice is denied to them.

Other similar forms of advocacy, campaigns and interventions have taken place globally to make known to the international community its failure to prosecute perpetrators of war crimes, crimes against humanity or genocide. Another major advocacy work undertaken by women activists was to ensure the gender recognition in the statutory construction of the ICC, which is now considered one of the major landmarks of the Rome Statute of the ICC.

Other forms of Justice and Accountability

For thousands of years there have been different forms of justice systems that developed from our communities, cultures and societies. Many of these traditional, tribal , indigenous and customary forms of justice are still being practiced today. As we examine the traditional forms of justice, we see the quest for justice or accountability as an inherent part of humanity. As is always the case, one needs to study the gendered nature of fairness in the traditional structures and look for its important impact in the lives of women in these communities.

The incursion and development of the western mode of justice, as it has been perpetuated in different parts of the world, must be recognized as a historical phenomenon with culturally specific values and norms. In the process of the incursion of the western concept of justice, women were further marginalized. Women’s subjugation in the arena of the justice system developed from the very notion of the privitisation of the violence done to women. It was only a decade ago that an official recognition of all forms of violations done to women in the private sphere are also public issues. But this new understanding still has to be accepted by both women and men.

One cannot imagine how many women are being denied justice globally and moreso for the victims of war. Currently the efforts undertaken by civil society has brought the issues of women victims of war to the public arena. But the national, regional and international legal mechanisms are not equipped to respond to the needs of the victims and more importantly there is often no support system at the community and national level to assist, protect and prepare the women survivors to access the justice system.

In order to respond to the heinous crimes committed against the people, several countries have initiated the establishment of a Truth and Reconciliation Commission under the auspices and mandate of the governments. South Africa, Haiti, Guatemala, Chile, Chiapas in Mexico, have set up this institutions to hear the cases of crimes committed against the people during the period of apartheid, military rule, or martial law. The Truth Commissions paved the way to investigate gross human rights violations and also hear cases presented to them. Although most of these Commissions tried to grapple with the gender issues and violence brought by the women, the Commissions’ structure, mandate or staffing have lacked the gender sensitivity, orientation and training to fully understand the gravity of the issues presented by women and men.

The Truth Commissions mandates are binding in some cases and its ability to hear cases was a challenge to women who participated and brought their cases to them. It is also important that we assist and advocate for more women’s involvement and intervention into this institutions as it acts as a judicial form of justice and accountability.

Indigenous and customary responses to crimes within the communities are one of the roots of restorative justice. This theory of justice that has grown out of experience and practicality , its aims is to involve the victim, the offender and the community in a search for solutions which promote repair, reconciliation, reassurance and healing.

In its modern day development restorative justice is the name given to a movement within and outside the criminal justice system. " Restorative justice is a process whereby all parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future".

International Crimes, Individual Criminal Responsibility and Universal Jurisdiction

International Crimes & Universal Jurisdiction

In international law, certain acts are considered to be international crimes because they affect the international community as a whole and therefore all states have a common interest in ensuring they are prevented or punished. The first such crime recognized as an international crime was that of piracy on the high seas.

Because there were no international tribunals to try such crimes, state courts were deemed to be the appropriate apparatus for prosecuting them. This type of jurisdiction over international crimes became known as "universal jurisdiction."

Other crimes were subsequently added to this category including slavery and then genocide. The Geneva Conventions specifically affirmed the grave breaches as international crimes for which all states parties have a duty to investigate, prosecute and punish. When the Geneva Conventions later came to be considered part of customary law, these obligations accrued to all states.

Some acts which constitute violations of human rights, such as torture, are also deemed to be international crimes.

Individual Criminal Responsibility

Though individual criminal responsibility for international crimes had received attention periodically in some national courts, via prosecutions for those suspected of piracy or slavetrading, it is widely considered that the concept was not concretized in international law until the establishment of the international military tribunals following World War II.

Note: Some scholars point out that these were not the first post-war international tribunals set up to prosecute individuals for egregious crimes. In 1474, Peter von Hagenbach was tried by an international court empaneled with judges from the different victor countries. Some also point to this as the first international rape trial as Hagenbach had specifically ordered the rape and pillaging of villages under his control.

The IMTs for Nuremberg and the Far East, spurred the development of an area of law that has fostered the establishment of more ad hoc international tribunals and the imminent establishment of the ICC, the world’s first permanent criminal tribunal.

In addition, the efforts by countries such as Spain or Belgium to assert universal jurisdiction over former dictators alleged to have committed or ordered massive human rights violations, has brought this concept to the forefront of the world stage.

Genocide and Crimes against Humanity

Though genocide is often referred to independently of any category of crime, it is in effect an example of that category of crimes known as crimes against humanity.

Genocide

The crime of Genocide was codified in the Genocide Convention three years after the close of World War II in response to the experience of the Holocaust. In the wake of World War II, many developments were occurring simultaneously on the international level in response to the ravages of the war. At the same time that that the Universal Declaration of Human Rights was being drafted, the Genocide Convention was being developed.

Adopted in 1948, the Convention codified the definition of genocide as:

The peace agreements officially signaling the end of the war mandated the establishment of international military tribunals (IMT’s) for Nuremberg and the Far East to try Nazi leaders and members of the Japanese army for war crimes and crimes against humanity, respectively. Though the Genocide Convention itself was not to be adopted until three years after the end of World War II, the statutes of both military tribunals included the concept of genocide, if not the named crime itself, as a crime against humanity.

The obligations arising from the Convention are not only to investigate and prosecute in the wake of a genocide but to take all measures to prevent one from happening.

Many view the Convention as having garnered insufficient enforcement of its provisions. One example is Australia. When faced with an allegation of genocide against indigenous people, a court found that Australia had not properly ratified/implemented the Genocide Convention and therefore, genocide, as it were, was not proscribed in Australia. Another example is the case of Rwanda and the initial reluctance of western governments to acknowledge the events in the spring and summer of 1994 as a genocide.

In a historic case, the International Criminal Tribunal for Rwanda rendered the first judgement finding a defendant guilty of genocide. In the Akayesu case, the Court also analyzed rape and other forms of sexual violence as a form of genocide.

Crimes Against Humanity

The concept of crimes against humanity was brought fully to life in the IMT’s for Nuremberg and Tokyo. However, the concept originated earlier on at the turn of the century, became more clearly enunciated at the end of World War I with attempts by the international community to address the Turkish onslought against the Armenians. At its inception, this class of crimes was referred to as crimes against the laws of humanity.

Since their explicit codification in the IMT statutes, the definitions of crimes against humanity have varied slightly from one context to another. Some interpretations have held that crimes against humanity must be associated with an armed conflict; others that there must be an element of discrimination involved.

The hallmark characteristic, however, is that they must be committed on a widespread or systematic basis against a civilian population.

The number of acts that have constituted crimes against humanity when committed on a large scale have increased since originally listed in the IMT statutes. In the Rome Statute, crimes against humanity now include:

-Murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution; enforced disappearance of persons; apartheid; other inhumane acts of a similar character; intentionally causing great suffering or serious injury to body or to mental or physical health.

Sexual and Gender violence as crimes against humanity

In the codification of crimes against humanity for the statute of the IMTs at Nuremberg and Tokyo, acts of sexual violence were not explicitly included, though many now consider that references to ‘inhumane treatment’ would have encompassed sexual violence. It was not until the Control Council Laws were adopted to provide the basis for national prosecutions of alleged war criminals in Germany that rape was explicitly listed as a crime against humanity in Control Council Law No. 10.

Rape remained the only named crime against humanity relating to sexual or gender violence even in the statutes of the ICTY and ICTR until the adoption of the Rome Statute in 1998 which also included sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence.

Human Rights

The concept of human rights, as we understand it today, came into being after WWII and the establishment of the United Nations.

Origins

The conceptualizations of many domestic constitutional rights are traced to ancient Greece and Rome and ideas of natural law resurrected during the Enlightenment period in Western Europe. The UN Charter was the first international instrument to acknowledge ‘human rights.’ Unlike many constitutional rights, the Charter does not invoke natural law as a basis for the existence of human rights. Rather, human rights are inherent in human dignity.

The International Bill of Rights

The Universal Declaration of Human Rights (1948) along with the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social and Cultural Rights (1966) are often referred to by some western scholars as the "International Bill of Rights."

A core concept of the human rights framework is that a human right is general or universal in character, something possessed by every human being equally. Every human being has certain inalienable and legally enforceable rights protecting her against state interference and abuse of governmental power.

The concept of international human rights is now firmly established and still evolving through the work of various international organizations as well as NGOs. It is now understood that states not only must refrain from violating human rights of citizens, but must also respect, protect and fulfill these human rights.

The 1966 Covenants together provide a comprehensive collection of fundamental individual and collective civil, political, economic, social and cultural rights, including prohibition against torture, discrimination on grounds of race, gender, religion, etc., right to fair working conditions, education and health.

Indivisibility

Official positions of the UN at its inception, as evidenced in the Universal Declaration, were that the two sets of rights — civil and political and economic and social — were indivisible. This principle necessitates that one set of rights does not have, nor should be accorded, more priority than the other. This indivisibility principle was reaffirmed in the Vienna Declaration, para. 5, which affirmed that the two sets of rights embodied in the ICCPR and ICESCR are "universal, indivisible and interdependent and interrelated."

In practice, however, a major tension in the international community has been as a result of the divisions of the Cold War — the struggle between those countries which gave precedence to civil and political rights as contained in the ICCPR and those which attached prominence to economic and social rights.

Throughout the Cold War there was a divide between countries espousing free-market or capitalist economies which downplayed economic and social rights and those with communist or socialist tendencies. Power deferentials on the international level allowed the framework of civil and political rights to eclipse social and economic rights, in practice, as minor or subservient to civil and political.

Core Human Rights and Jus Cogens

There is a category of human rights from which there can be no derrogation from the obligation on states to respect, protect and fulfill, at any time or place, even in ‘public emergency.’ Those rights are considered to rise to the level of jus cogens.

Article 4 of the ICCPR explicitly affirms that there can be no derrogation from certain rights in the Covenant including: the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, the right not be held in slavery or servitude, the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation, the prohibition of retroactive application of criminal law, the right to recognition everywhere as a person before the law, the right to freedom of thought, conscience and religion. (as contained in ICCPR).

Human Rights Treaty Bodies

The Optional Protocol to the International Covenant on Civil and Political Rights Covenants allows individuals to submit petitions to the Commission of Human Rights, the limitation being the requirement to exhaust local remedies. In addition to specialized UN agencies involved in the monitoring of human rights adherence and investigations of violations there are two regional human rights bodies — the European Commission and Court of Human Rights and Fundamental Freedoms and the Inter-American Commission and Court of Human Rights. While there is an African Charter of Human Rights and People Rights, there is no institution or treaty body associated with the Charter to monitor human rights in Africa. There is no regional human rights treaty or monitoring mechanism specifically for the Asia region, a vastly diverse region geographically and culturally.

Customary Law Intersections

Many human rights recognized in international agreements are also recognized as customary law, established through adherence to the UN Charter, Universal Declaration, the participation of a majority of states in the preparation and adoption of human rights agreements and General Assembly resolutions on human rights and the frequent references to human rights principles in the domestic and international arenas.

The non-derrogation principle for fundamental human rights is one example of human rights rising to customary law.

Women’s Rights as Human Rights

Beginning with the Vienna Conference on Human Rights in 1993, women activists joined together to call for the recognition of women’s rights as human rights. The criticisms of women activists and women’s organizations throughout the world of the traditional frameworks have been that they tend to exclude the experiences of women in the final analysis of human rights violations. It had become clear that the traditional human rights framework and the way the international community had been operating within it, was horribly deficient in its capacity to address women’s lived realities.

One major point of contention was the public/private distinction of the human rights framework. From the perspective of women who endure large-scale violence in the "private" realm as well as at the hands of state actors, this was a glaring omission.

Another critique of the human rights framework was that civil and political rights, while important but limited in their application, were given higher priority than economic and social. These aspects of human rights work on the international level tended to perpetuate or facilitate male-dominated family and societal arrangements that prevented women from having access to necessary resources.

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