Article by Amisha Gupta
(Student at UPES Dehradun)
INTRODUCTION
Human rights[1] are the basics of all rights which prevail over any other law but today Human rights are violated to the un-measurable extent. Both the legal[2] and non legal sources[3] approved the degradation of human rights in today scenario which is at alarming rate. This right is not only violated at regional and national level but it even took the major turn over the international stage[4]. There is hypothesis that violation of every human right would be considered as crime which is against the humanity and hence would be criminalized. As for every crime there are specific punishments with proper procedures so here too it will be deal as to substantial law.
International laws are built upon the basis of jus cogens which are the generally accepted norms by all over the country. These are the peremptory laws which state the natural and the human rights i.e. the essential rights for every human and hence followed by every country even without their assent. International jus cogens[5] and the human rights have connection among them but it cannot be termed as the absolute connection as somewhere they got differentiated and their connection got failed.
There is a huge issue on the matter that whether there is any actual violation of human right or the petitioner is just misusing its power. To decide the actual violation of the right and to serve the justice, the basic elements are made clear by the judgment which states that to utilize this right its essentials must be satisfy which are somewhere differentiated from the jus cogens[6]. In case of ex president case the judgment was announced for the extradition case which was held for the various countries like chile[7] and United Kingdom. It concluded that crimes which are prohibited at international level and crimes which attract the need to law at huge level, would be considered under jurisdiction of international customary law. Further it specifies the two most essentials for upholding the case in the favor of petitioner. First, the law or the actions must be in contrary to the jus cogens that is the very basic or the essential duty which must be followed by everyone as there are constituted generally by the common custom. Secondly, the infringement of the right and the attack on the international law must be too grave that it must be clear on the face of it.
HISTORY
In 1984, the humanitarian law was considered for the first time by the international law commission [8]who drafted that the serious human rights violations forms the innate part of the crime which are against the humanity and thus considered for the trial if they touch the high seriousness of gravity. Though there is a difference of seriousness of gravity between the human right violation and the crimes against humanity but its originating or the basic nature is almost similar so in consequence they are placed at balance.
Later on, in 1986[9] both the violation of human rights and crimes against humanity were studied more deeply by more seriousness. The new version this was introduced in 1991, in which the objective of draft was to widened the scope by studying more serious crimes like- murder, torture, slavery, forced labor, deportation and persecution but It was again subject to modification by the international law commission who majorly expresses its by bringing the more clarification in its scope by starting all over it with defining the ‘crimes against humanity’.
RELATIONSHIP
To punish the offender of the law there are various punishments which can be given to that person such as torturing[10] which is mainly done in the case of terrorism or persecution[11] in which the person got deprived of its fundamental rights severely. These kind of punishment infringes the human rights and it can be said that they all go against the humanity as we can’t torture anyone to the hell. Adding on this, there is a huge dispute over the capital punishment[12] between countries as some countries including first world nation with 142 countries had suspended the capital punishment[13] both in law or force which means that they won’t punish any criminal with hang till death or execution by fire squad and around 170 states have substituted their law with some other law just to prevent the fundamental human rights. Besides this some countries like India[14], still enforces the capital punishment in rarest to rare case.
With this, international criminal court got concerned over the concept of slave and to dismiss its existence they gave their decision in the pre- trial chamber held by international criminal court in the charges of Katanga[15] and ngudjolo chui[16] ,that sexual slavery which is very serious as it affects the freedom of movement and power, is against the peremptory norms i.e. jus cogens which are universally accepted law. Hence declared the sexual slavery to be null and void and issued the orders to dismiss this kind of practice.
The practices which are totally against the international law when declared to be unconstitutional at international level, cannot give power to any authority at national level or any authority which is at national level cannot suspend or disregard that order.
The judgments and the decisions made by the international criminal court made clear that there approach of decision making revolves around two main factor. First factor is the gravity of the offence and its seriousness on the people which makes its criminalized where second factor is the constitution of the essential subjective and objective element which are must before declaring the practice under the violation of human rights or crimes against humanity. As in ngudjolo chui, where the case was led by the trial chamber of international criminal court, it was correctly found by the ICC that the investigation into the serious matter of violation of human rights is not uniform with the process taken under criminal investigation. They keep the balance between international criminal law and international human rights.
As per the change in the society, the ideas of drafters are modified. New international human right treaties are introduced as the result of the initiative which is taken by the drafters just to cope up with the society. This new international human right takes the focus towards the child right[17].
[1] Adopted in 1948, by UDHR. [2] In response to the world war II [3] Such as cultures, ethics and moral. [4] International human rights law (IHRL). [5] https://www.rgsl.edu.lv/uploads/research-papers-list/17/rp-6-zenovic-final.pdf [6] A. Orakhelashvili, Peremptory Norms in International Law (2006) [7] R (Pinochet Ugarte) v Bow St Metropolitan Stipendiary Magistrate [2000] 1 AC 61,119,147 [8] The meeting held in Geneva [9] This was the 38th session of the ILC which was held in Geneva. [10] Prosecutor v. Anto Furundzija [11] R v Immigration Appeal Tribunal, ex parte Jonah [1985] Imm AR 7 [12] Article 6 of the ICCPR [13] article 3 of the Universal Declaration of Human Rights [14] Article 6(2), The International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1966, ( rarest of rare case such as in - Bachan Singh vs State Of Punjab on 9 May, 1980 Equivalent citations: AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145) [15] THE PROSECUTOR v. GERMAIN KATANGA [16] The Prosecutor v. Mathieu Ngudjolo Chui ICC-01/04-02/12 [17] This was adopted in 1959 by the UN general assembly. Picture Courtesy- Michelle Bonkosky/@m_bonkosky