Training Manual on Human Rights Monitoring - Chapter IV: Overview of International Human Rights and Humanitarian Law Standards
CONTENTS
A. Introduction
2. Violations of the right not to be arbitrarily deprived of life
b. Investigation of arbitrary executions
c. Limits on the use of force by government officials to prevent arbitrary executions
d. Genocide
2. Violations of the right to personal integrity
a. Torture
2. Violations of the right to liberty and security of person
1. Courts
2. Prosecutors
3. Lawyers
5. Human rights during criminal investigations, arrest, and detention
7. Standards for the protection of prisoners
9. Administration of juvenile justice
10. Rights of minorities, non-nationals, and refugees
11. The human rights of women in the administration of justice
12. Protection and redress for victims of crime and abuses of power
13. The administration of justice under states of emergency
14. The right to habeas corpus, amparo, or similar remedy
15. Role of the courts in protecting economic and social rights
F. Freedom of Opinion and Expression
G. Freedom of Association and Assembly
H. Freedom of Movement and Residence
J. Right to Housing and other Economic, Social and Cultural Rights
1. Refugees
O. Right to Non-discriminatory Treatment
R. Other International Human Rights Law Standards
1. This chapter provides a brief summary of international human rights and humanitarian law standards applicable to the work of HROs. In addition, more detailed coverage of standards relating to specific areas of international human rights may be found in Part Three - The Monitoring Function, in the Chapters related to areas such elections, detention, economic, social and cultural rights, internally displaced persons, refugees, fair trial, and others.
2. The HRO should be aware, however, that this summary provides only a brief view of the larger constellation of international human rights and humanitarian law norms. The present Training Manual focuses on only a few basic international human rights and humanitarian law norms without suggesting that these are the only rights of concern to HROs. In order to narrow the scope of this chapter, the rights discussed were chosen principally because of their relevance to previous UN human rights observer mandates and field operations. HROs are encouraged to refer to other texts containing more extensive information on human rights and humanitarian law, some of which are listed in the Bibliography at the end of the Manual.
The following international human rights and humanitarian law principles will be discussed in this chapter: Right Not to Be Arbitrarily Deprived of Life; Right to Personal Integrity; Right to Liberty and Security of Person; Rights in the Administration of Justice; Freedom of Opinion and Expression; Freedom of Association and Assembly; Freedom of Movement and Residence; Rights of Refugees and Internally Displaced Persons; the Human Rights of Women; Rights of Minorities; Right to Non-discriminatory treatment; Right to Property; Right to Housing and Other Economic, Social and Cultural Rights; Impunity; and Other Human Rights Standards.
B. Right Not to be Arbitrarily Deprived of Life
a. International human rights law
3. Pursuant to Article 3 of the Universal Declaration, "Everyone has the right to life, liberty and security of person." Article 6 of the Civil and Political Covenant states that, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The Human Rights Committee has noted that Article 6 enunciates "a right which should not be interpreted narrowly." (1) Article 4 of the Covenant on Civil and Political Rights provides that the right to be free from arbitrary killing is non-derogable, that is, it cannot be suspended even in times of emergency.
4. Article 4(1) of the American Convention declares, "Every person has the right to have his life respected. This right shall be protected by law . . . . No one shall be arbitrarily deprived of his life." Further, Article 4 of the Banjul Charter guarantees that "[h]uman beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right." Article 2(1) of the European Convention provides that "Everyone's right to life shall be protected by law."
b. International humanitarian law
5. International humanitarian law also protects the right not to be arbitrarily deprived of life. Common Article 3 in the four Geneva Conventions prohibits "at any time and in any place whatsoever . . . violence to life and person, in particular murder of all kinds" against persons taking no active part in an armed conflict not of an international character. Article 4 of Additional Protocol II also prohibits "violence to the life, health and physical or mental well-being of persons [who do not take a direct part or who have ceased to take part in non-international hostilities], in particular murder . . .."
6. As to periods of international armed conflict, wilful killings of protected persons (civilians, prisoners of war, and soldiers hors de combat) under the Geneva Conventions constitute grave breaches of international humanitarian law. See First Geneva Convention, Article 50; Second Geneva Convention, Article 51; Third Geneva Convention, Article 130; Fourth Geneva Convention, Article 147; Additional Protocol I, Article 85.
7. Article 12 of both the First Geneva Convention and the Second Geneva Convention state that armed forces and others who are wounded or sick "shall be treated humanely . . .. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular they shall not be murdered or exterminated . . .."
8. Article 13 of the Third Geneva Convention states that prisoners of war "must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention . . .."
9. Article 32 of the Fourth Geneva Convention forbids any measure which causes "physical suffering or extermination of protected persons [civilians who are in the power of a party to an international armed conflict] in their hands. This prohibition applies not only to murder . . . but also to brutality applied by civilian or military agents."
2. Violations of the right not to be arbitrarily deprived of life
10. An arbitrary execution is the killing of a person perpetrated by an agent of the state or any other person acting under Government authority or with its complicity, tolerance, or acquiescence, but without any or due judicial process. Executions resulting from a death sentence issued by a court, are also arbitrary executions if the fair trial guarantees provided in Articles 14 and 15 of the Civil and Political Covenant are not respected.
11. Arbitrary executions (to be distinguished from executions after a fair trial) often are killings under suspicious circumstances with the following characteristics:
(1) Death occurred when the person was in the hands of law enforcement officials (for example in police custody), public officials, or other persons acting in an official capacity;
(2) The death was not followed by an official inquiry. The authorities did not carry out an adequate autopsy of the victim or did not take the necessary steps to obtain relevant evidence (medical report, signs of previous torture, etc.).
12.
Arbitrary executions include killings committed for political reasons, deaths
following torture or any other cruel, inhuman or degrading treatment, and killings
following kidnapping or forced disappearance, if the conditions mentioned are
present.
b. Investigation of arbitrary executions
13. The United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Execution (2) contain important guidance for States and for HROs. The Principles are set forth under three headings: Prevention, Investigation, and Legal Proceedings. Pursuant to Principle 1, governments shall prohibit by law all extra-legal, arbitrary, and summary executions. Further, governments shall ensure that any such executions are recognized as offences under their criminal laws, and are punishable by appropriate penalties which take into account the seriousness of such offences. The Principles reaffirm the duty of the Government to investigate all arbitrary and summary executions. The Principles further provide:
Principle 7. Qualified inspectors, including medical personnel, or an equivalent independent authority, shall conduct inspections in places of custody on a regular basis, and be empowered to undertake unannounced inspections on their own initiative, with full guarantees of independence in the exercise of its function. The inspectors shall have unrestricted access to all persons in such places of custody, as well as to all their records.
Principle 8. Governments shall make every effort to prevent extra-legal, arbitrary and summary executions through measures such as diplomatic intercession, improved access of complainants to intergovernmental and judicial bodies, and public denunciation. Intergovernmental mechanisms shall be used to investigate reports of any such executions and to take effective action against such practices. Governments, including those of countries where extra-legal, arbitrary and summary executions are reasonably suspected to occur, shall co-operate fully in international investigations on the subject. . . .
Principle 12. The body of the deceased shall not be disposed of until an adequate autopsy is conducted. . . . Those conducting the autopsy shall have the right of access to all investigative data, to the place where the body was discovered, and to the place where the death is thought to have occurred. . . .
Principle 13. The body of the deceased shall be available to those conducting the autopsy for a sufficient amount of time to enable a thorough investigation to be carried out. The autopsy shall, at a minimum, attempt to establish the identity of the deceased and the cause and manner of death. The time and place of death shall also be determined to the extent possible. Detailed colour photographs of the deceased shall be included in the autopsy report in order to document and support the findings of the investigation. The autopsy report must describe any and all injuries to the deceased including any evidence of torture.
14. Use of these procedures during death investigations should produce the evidence necessary for increased detection and disclosure of other executions. These standards also provide international observers with guidelines to evaluate investigations of suspicious deaths. The principles are augmented and explained by United Nations, Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (3). Relevant information is also contained in the United Nations Guidelines for the Conduct of United Nations Inquiries Into Allegations of Massacres (4).
c. Limits on the use of force by government officials to prevent arbitrary executions
15. The Human Rights Committee, commenting on Article 6 of the Civil and Political Covenant, stated that:
The protection against arbitrary deprivation of life which is explicitly required by the third sentence of Article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities. (5)
16. Killings committed pursuant to a legitimate use of force authorized by law are not considered to be arbitrary executions. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall minimize damage and injury, and respect and preserve human life.
17. Article 3 of the United Nations Code of Conduct for Law Enforcement Officials (6) establishes that "Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty." Further, the Commentary to Article 3 states:
(a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime in affecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.
(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.
(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.
18. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide for the following guidelines on this matter (7):
Non-violent means are to be attempted first (8)
Force is to be used only when strictly necessary (9)
Force is to be used only for lawful law enforcement purposes (10)
No exceptions or excuses shall be allowed for unlawful use of force (11)
Use of force is to be always proportional to lawful objectives (12)
Restraint is to be exercised in the use of force (13)
Damage and injury are to be minimized (14)
A range of means for differentiated use of force is to be made available (15)
All officers are to be trained in the use of the various means for differentiated use of force (16)
All officers are to be trained in use of non-violent means (17)
ii. Accountability for the use of force and firearms
19. All incidents of the use of force or firearms shall be followed by reporting and review by superior officials. (18)
20. Superior officials shall be held responsible for the actions of police under their command if the superior official knew or should have known of abuses but failed to take concrete action. (19)
21. Officials who refuse unlawful superior orders shall be given immunity. (20)
22. Officials who commit abuses of these rules shall not be excused on the grounds that they were following superior orders. (21)
iii. Permissible circumstances for the use of firearms
23. Firearms are to be used only in extreme circumstances. (22)
Firearms are to be used only in self-defence or defence of others against imminent threat of death or serious injury (23)
-or-
To prevent a particularly serious crime that involves a grave threat to life (24)
To arrest or prevent the escape of a person posing such a threat and who is resisting efforts to stop the threat (25)
In every case, only when less extreme measures are insufficient. (26)
24. Intentional lethal use of force and firearms shall be permitted only when strictly unavoidable in order to protect human life. (27)
iv. Procedures for the use of firearms
25. The officer should identify him/herself as a police official (28)
give a clear warning (29)
allow adequate time for warning to be obeyed, (30)
such precautions shall not be required if the delay would result in death or serious injury to the officer or others (31)
It is clearly pointless or inappropriate in the circumstances to do so. (32)
v. After the use of firearms
26. Medical aid is to be rendered to all injured persons. (33)
27. The relatives or friends of those affected are to be notified. (34)
28. Investigation are to be allowed for where requested or required. (35)
29. A full and detailed report of the incident is to be provided. (36)
30. Under international law, States are obliged to carry out impartial and exhaustive investigations into all allegations of arbitrary executions, including killings using firearms, with a view to clarifying the circumstances, identifying those responsible, bringing them to justice, compensating the victims or their families, and taking all necessary action to prevent the recurrence of similar acts in the future. The result of such investigations must be made public (UN Principles on the Effective Prevention and Investigations of Extra-legal, Arbitrary and Summary Executions).
61 bis. Because the excessive use of force and firearms may result in arbitrary killing, this topic is covered under the heading "Right to not be arbitrarily deprived of life". It should be noted, however, that the excessive use of force and firearms may also result in violations of other fundamental rights, including the right to personal integrity (see below).
31. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide requires State Parties "to punish . . . genocide, whether committed in time of peace or time of war." (Art. I). The Convention defines genocide as committing one of the following acts with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
32. It should be noted that genocide does not require killing, but may involve the other actions identified by the Convention if committed with genocidal intent and particularly if large numbers are involved.
e. Attempted arbitrary execution
33. The attempt to carry out an arbitrary execution, which fails for reasons beyond the initial intention of one or more Government agents, constitutes an attempted arbitrary execution. Any such attempts should be the subject of an inquiry taking into account the following elements:
(a) The possible political, trade union, religious, or associative activity exercised by the victim.
(b) The function or scope of activity of the supposed author of the attempted arbitrary execution.
(c) Any extortion, harassment, threat, or stalking undergone by the victim or relatives prior to the execution attempt.
(d) The use, in the attempted killing, of means capable of obtaining the expected result.
(e) The form and means of the execution attempt.
34. Any action or statement, explicit or implicit, likely to instill in a person a justified fear of becoming the victim of an arbitrary execution is a death threat. HROs should devote attention to death threats:
(a) arising from members of the armed forces or any other public institutions;
(b) arising from individuals or paramilitary groups related to the authorities or acting with the complicity of or the tacit approval of the authorities;
(c) when there is reason to believe that these threats are part of a practice of arbitrary executions; when the threat is precise; and when there is reason to believe that the threat will be followed by action.
35. Accordingly, a HRO should give priority to making inquiries about cases where human life is endangered. The inquiries should attempt to establish that there was an arbitrary execution, an attempted arbitrary execution, or a death threat by identifying the elements of the violations as discussed in Chapter VI "Identification of and Prioritization of Efforts Regarding Human Rights Violations".
C. Right to Personal Integrity
a. International human rights law
36. Pursuant to Article 5 of the Universal Declaration, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 7 of the Civil and Political Covenant also guarantees the right to be free from torture. The Human Rights Committee General Comment on Article 7 indicates that even in situations of public emergency this provision is non-derogable. (37)
37. Further, Article 10(1) of the Civil and Political Covenant provides that, "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." The Human Rights Committee, in its General Comment 21, interprets Article 10(1) as applying to "anyone deprived of liberty under the laws and authority of the State who is held in prisons, hospitals - particularly psychiatric hospitals - detention camps or correctional institutions or elsewhere." (38) Commenting on the interplay between Articles 7 and 10 of the Civil and Political Covenant, the Human Rights Committee stated in General Comment 21,
[N]ot only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons.
38. The Torture Convention defines torture in Article 1(1):
For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
39. The exception for "lawful sanctions" refers to lawfulness in both national and international law. Hence, it would not be lawful to impose a sanction which violates Rule 31 of the Standard Minimum Rules for Treatment of Prisoners, which inter alia forbids corporal punishment. Similarly, the Human Rights Committee has interpreted Article 7 of the Civil and Political Covenant, stating that "the prohibition must extend to corporal punishment, including excessive chastisement as an educational or disciplinary measure. Even such a measure as solitary confinement may, according to the circumstances, and especially when the person is kept incommunicado, be contrary to this article."
40. All of the regional human rights conventions prohibit torture and cruel or degrading treatment or punishment. (American Convention, Article 5(2); Banjul Charter, Article 5; European Convention, Article 3). The American Convention further provides in Article 5(1) that, "Every person has the right to have his physical, mental, and moral integrity respected." Pursuant to Article 5 of the Banjul Charter, "Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status." In addition, there are two regional treaties specifically focusing on torture: the Inter-American Convention to Prevent and Punish Torture, and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
b. International humanitarian law
41. In all four of the Geneva Conventions and the two Additional Protocols there are provisions which either expressly or by implication forbid torture and other cruel, inhuman, or degrading treatment or punishment. During international armed conflict, torture is forbidden as to those who are wounded and sick on land by the First Geneva Convention, Article 12; as to the wounded, sick and shipwrecked at sea by the Second Geneva Convention, Article 12; as to prisoners of war by the Third Geneva Convention, Articles 17 and 87; and as to civilians by the Fourth Geneva Convention, Article 32; Additional Protocol I, Article 75; Additional Protocol II, Article 4.
42. Civilians are also protected by Article 37 of the Fourth Geneva Convention, which provides that those civilians who are confined shall be "humanely treated". Article 118 of the Fourth Geneva Convention forbids imprisonment "in premises without daylight and, in general, all forms of cruelty" against internees.
43. During periods of international armed conflict or wars of national liberation, Article 11 of Additional Protocol I prohibits endangering the "physical or mental health and integrity of persons who are in the power of the adverse party, or who are interned, detained or otherwise deprived of liberty . . . ." Article 75 also forbids "outrages upon personal dignity, in particular humiliating and degrading treatment . . . ."
44. As to non-international armed conflicts, Article 3 common to the four Geneva Conventions forbids "cruel treatment and torture" of persons taking no active part in the hostilities. Common Article 3 also proscribes "outrages upon personal dignity, in particular, humiliating and degrading treatment," "mutilation, cruel treatment and torture." Further, Article 4 of Protocol II prohibits at any time and in any place whatsoever: "(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment . . . (c) outrages upon personal dignity, in particular, humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault . . . (h) threats to commit any of the foregoing acts."
2. Violations of the right to personal integrity
45. A violation of the right to personal integrity occurs when the State, through its agents or any other person acting in an official capacity, on its instigation or with its consent or
acquiescence, applies torture or cruel, inhuman or degrading treatment, thus causing physical, psychological, or moral suffering. The greater the extent to which the pain and suffering are serious and intentionally inflicted, the greater the likelihood that the treatment involves an attack to the integrity of the person.
46. In general, three categories of acts correspond to this type of violation:
(a) Torture;
(b) Cruel, inhuman or degrading treatment or punishment; and
(c) Attempted execution
47. As defined by the Torture Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as:
(a) obtaining from him or a third person information or a confession;
(b) punishing him for an act he or a third person has committed or is suspected of having committed;
(c) intimidating or coercing him or a third person; or
(d) for any reason based on discrimination of any kind.
48. The above-described pain or suffering constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Behaviour that characterizes torture should, however, be construed broadly rather than narrowly. In any event, in this definition of torture, three elements should be emphasized:
(a) acute suffering;
(b) intentionally inflicted; and
(c) by a public official or other person acting in an official capacity or on his instigation or with his consent or acquiescence.
49. Under this definition, rape is a form of torture. As discussed above, however, the HRO should note that pain or suffering arising only from, inherent in, or incidental to lawful sanctions may not fall within the definition of torture if the sanctions are acceptable under both domestic law and international human rights law. Conduct that is allowed under domestic law may be considered torture if it is unacceptable under international instruments such as the Standard Minimum Rules for the Treatment of Prisoners.
b. Cruel, inhuman or degrading treatment or punishment
50. Torture is an aggravated form of cruel, inhuman or degrading treatment. Not all cruel, inhuman and degrading treatment, however, constitutes "torture". It is not always easy to establish a difference or a borderline. For instance, do beatings which undoubtedly are cruel, inhuman and degrading treatment, come under the description of "torture"? After how many blows? Where is the threshold of intensity of suffering, the gravity of the wounds and injuries?
51. Pursuant to Article 16 of the Torture Convention, the obligations contained in Articles 10, 11, 12, and 13 apply to both torture and other forms of cruel, inhuman or degrading treatment or punishment. Hence, Articles 12 and 13 require States to ensure that complaints of acts of both torture and cruel, inhuman or degrading treatment or punishment are investigated. Similarly, pursuant to Article 10, States are to include education and information regarding the prohibition against torture/cruel, inhuman or degrading treatment or punishment in the training of law enforcement personnel, medical personnel, public officials, etc.
52. Defining an act as torture rather than cruel, inhuman or degrading treatment may, however, have important consequences. For example, Article 4 of the Torture Convention requires each State Party to ensure that all acts of torture are offences under its criminal law. Further, States shall ensure that victims of torture have an enforceable right to fair and adequate compensation (Article 14) and that any statement adduced by torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statements were made (Article 15). These provisions of the Torture Convention do not apply to cruel, inhuman or degrading treatment or punishment.
53. The distinction between torture and cruel, inhuman or degrading treatment is not always easy. Nor is it necessary for the HROs to make the distinction. Torture as well as cruel, inhuman or degrading treatment constitute a violation of human rights as to which the HROs must gather information and report.
D. Right to Liberty and Security of Person
54. In accordance with Article 3 of the Universal Declaration, "Everyone has the right to life, liberty and security of person." Further, Article 9 of the Universal Declaration states that, "No one shall be subjected to arbitrary arrest, detention or exile."
55. Article 9(1) of the Civil and Political Covenant guarantees that "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." The Human Rights Committee has pointed out that "paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc." (39)
56. The European Convention and the Banjul Charter also provide the right to liberty and security of person. (European Convention, Article 5(1); Banjul Charter, Article 6.) The American Convention in Article 7(2) states that, "No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto." Further, Article 7(3) declares, "No one shall be subject to arbitrary arrest or imprisonment."
57. For additional standards relating to the rights of detainees, see Chapter IX. "Visits to persons in detention".
2. Violations of the right to liberty and security of person
58. There is a violation of the right to individual liberty when a public official or any other person acting in an official capacity or with official instigation, consent, or acquiescence, deprives a person, without a valid reason, of his/her liberty by confining him/her in a prison or any other detention facility or compels him/her to stay in an assigned residence.
Article 9 of the Civil and Political Covenant contains first of all a requirement of legality for arrest and detention. Deprivation of liberty is permissible only when it transpires on such grounds and in accordance with such procedures as are established by the law. The principle of legality is violated if somebody is arrested or detained on grounds which are not clearly established in law or which are contrary to such law.
Secondly, it prohibits "arbitrary" arrest. The concept of arbitrary goes beyond that of legality. The prohibition of arbitrariness provides for an additional limitation on the possibility to deprive a person of their liberty. It is not enough that the deprivation of liberty be provided by law. The law itself must also not be arbitrary, and the enforcement of the law must not take place arbitrarily. "Arbitrary" is more than against the law or unlawful. It must be interpreted more broadly, as containing elements of injustice, unreasonabless and disproportionality. Therefore, cases of deprivation of liberty provided for by law must not be unproportional, unjust or unpredictable, and the specific manner in which an arrest is made must not be discriminatory and must be appropriate and proportional in view of the circumstances of the case.
In addition, a violation of the rights of arrested persons indicated in Article 9 of the Civil and Political Covenant, or a combination of violations of those rights, can lead to arbitrary detention. For example, the Human Rights Committee has established that people who had been arrested without an arrest warrant and had not been informed of the grounds for the arrest, were being arbitrarily detained.
59. Detained persons shall be held only in officially recognized places of detention, and their family and legal representatives are to receive full information. (40)
60. Juveniles are to be separated from adults; women from men; and persons who have been convicted from those persons who are awaiting trial. (41)
61. Decisions about the duration and legality of detention are to be made by a judicial or equivalent authority. (42) Every detainee shall have the right to appear before a judicial authority and to have the legality of his/her detention reviewed. (43)
62. According to General Comment No. 6 of the Human Rights Committee, States parties should take specific and effective measures to prevent the disappearance of individuals. The Declaration on the Protection of All Persons from Enforced Disappearance (44) contains detailed guidance on States' obligations on this matter. In general, enforced disappearances occur when:
a) persons are arrested, detained, or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support -- direct or indirect -- consent, or acquiescence of the Government, and
b) followed by the Government's refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty.
63. The first criterion is that the person must have been arrested or abducted by a Government official or any other person acting in an official capacity or with his consent or acquiescence. Such state responsibility is often difficult to verify. Normally the perpetrators of an enforced disappearance cover their tracks carefully.
64. The likelihood of a disappearance is greater if the victims was involved in political, trade union, or other association activities. The HRO should ask whether the victim previously had been threatened because of his/her political activities or beliefs. Have any other individuals in the same organizations been reported missing?
65. The second element of the definition relates to the Government's refusal to acknowledge the arrest or admit knowledge of the person's whereabouts. The inquiry should include a search for the missing person in official or unofficial detention centres. This inquiry could be pursued by members of his family, friends, HROs, etc. HROs should question Government officials on the previous location and the present whereabouts of the missing person. Only after the Government's refusal to provide information or in the absence of any information, can a HRO conclude that a case of enforced disappearance is involved.
66. In short, one may assume that there is a case of "enforced disappearance" when the inquiry leads nowhere, when there is every reason to believe that Government officials or people working for them are involved in the disappearance, and when there are strong indications that the disappearance was for political or similar reasons.
67. In most cases, the Government will not admit that its officials or people working for them are involved in the disappearance and omits or refuses to carry out a proper enquiry.
68. The closer a case approaches this definition, the more it constitutes a serious and continuous violation of human rights.
E. Rights in the Administration of Justice
69. The administration of justice includes the functioning and independence of the courts; the role of prosecutors; the role of lawyers; the role of law enforcement officials; human rights during criminal investigations, arrest, and detention; the right to a fair trial; standards for the protection of prisoners; non-custodial measures; the administration of juvenile justice; the rights of minorities, non-nationals, and refugees; women's human rights in the legal system; protection and redress for victims of crime and abuses of power; the administration of justice under states of emergency; the right to habeas corpus, amparo, or similar remedy; and the role of the courts in protecting economic and social rights. As to each of these subjects there are international standards, which are briefly summarized below. For a more detailed and complete treatment of these standards, see U.N. High Commissioner/Centre for Human Rights, Human Rights in the Administration of Justice (Professional Training Series, forthcoming 1999), Human Rights and Law Enforcement (Professional Training Series No. 5, 1997), and Human Rights and Prisons (Professional Training Series, forthcoming 1999).
70. Article 10 of the Universal Declaration of Human Rights states, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him".
71. This provision is amplified by Article 14(1) of the Civil and Political Covenant:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
72. More explicit protections for the independence and impartiality of the tribunal have been adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders in the Basic Principles on the Independence of the Judiciary (45). Principle 1 states that "[t]he independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary". Principle 2 states that [t]he judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without nay restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason".
According to Principle 6, "The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected."
73. Principle 10 of the Basic Principles on the Independence of the Judiciary states that persons "selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law". Principle 12 requires that judges "shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists".
74. The Basic Principles on the Independence of the Judiciary also guarantee freedom of expression and association for judges; other standards in regard to their qualifications, selection, and training; conditions of service and tenure; professional secrecy and immunity; as well as discipline, suspension, and removal.
75. The Human Rights Committee emphasizes that:
the provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14." (46)
76. The Guidelines on the Role of Prosecutors (47), recognize that prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should contribute to fair and equitable criminal justice and the effective protection of citizens against crime. Accordingly, the Guidelines provide standards in regard to qualifications, selection, and training of prosecutors; status and conditions of their service; guarantees for their freedom of expression and association; their role in criminal proceedings; the performance of their discretionary functions; alternatives to prosecution; prosecutors' relationship with other Government agencies or institutions; and disciplinary proceedings.
Principle 10 requires that [t]he office of prosecutors shall be strictly separated from judicial functions". Principle 12 states that "[p]rosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system".
Principles 13 to 16 further establish the duty for prosecutors to carry out their functions impartially and without discrimination; to take proper account of the position of the suspect and the victim; to give due attention to the prosecution of crimes committed by public officials, particularly grave violations of human rights; and to refuse to use evidence that they know was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect's human rights.
77. The Basic Principles on the Role of Lawyers (48) recognize that adequate protection of human rights requires effective access to legal services provided by an independent legal profession, and establish obligations for Governments to provide effective and equal access to lawyers for all without discrimination. The Principles guarantee access to lawyers and legal services; special safeguards in criminal justice matters; standards in regard to qualifications and training; protections for the independence and functioning of lawyers; their freedom of expression and association; professional associations; and disciplinary proceedings.
78. The Code of Conduct for Law Enforcement Officials (49) recognizes their duty imposed upon them by law, to serve the community principally by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession. The Code provides for the protection and respect by law enforcement officials of human rights and dignity, limits their use of force to situations in which it is strictly necessary; notes their duty to keep certain matters confidential, forbids their use of torture or other ill-treatment; assures that they will protect the health of detainees, states that they will avoid corruption; and provides that they will respect the law. Further, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (50) are discussed in Chapter IV-B "Right Not to be arbitrarily deprived of life". In addition, for a detailed analysis of international human rights standards relevant to law enforcement officials and functions, see U.N. High Commissioner/Centre for Human Rights, Human Rights and Law Enforcement (Professional Training Series No. 5, 1997)
5. Human rights during criminal investigations, arrest, and detention
79. Article 9 of the Civil and Political Covenant provides that "No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."
"Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." Further standards in regard to arrest and detention are discussed in Chapter IX "Visits to Persons in Detention"; see also Chapter IV-E "Rights in the administration of justice".
80. The right to fair trial is principally guaranteed by Articles 9, 14, and 15 of the Civil and Political Covenant. In regard to a criminal case, it includes the rights to be informed promptly of any charges upon arrest; to be brought promptly before a judge or similar judicial officer for an assessment of the legality of an arrest; to equal treatment before courts and tribunals; to a fair and usually public hearing by a competent, independent, and impartial tribunal established by law; to be presumed innocent; to be informed promptly and in detail in a language one understands of the nature of charges; to have adequate time and facilities for the preparation of a defence; to communicate with counsel of one's own choosing; to be tried without undue delay; to be tried in one's presence; to defend one's self in person or through legal assistance of one's choice; to be informed that counsel will be appointed if one does not have sufficient funds and the interests of justice require appointment; to examine or have examined witnesses; to obtain the attendance and examination of witnesses on the same conditions as adverse witnesses; to have the free assistance of an interpreter if one cannot understand the language used in court; not to be compelled to testify against one's self or to confess guilt; to have a conviction reviewed by a higher tribunal according to law; to be compensated for any punishment which is conclusively shown to be a miscarriage of justice; not to be convicted for any offence for which one has been finally convicted or acquitted (non bis in idem); not to be convicted for any act which did not constitute a criminal offence under national or international law at the time of the conduct (prohibition of retroactivity of criminal law); to benefit from any subsequent decrease in punishment. For further discussion of fair trial standards, see Chapter XII "Trial Observation and Monitoring the Administration of Justice"; see also Chapter III.E.9 "Administration of juvenile justice"; Chapter III.E.14 "Right to habeas corpus, amparo, or similar remedy."
7. Standards for the protection of prisoners
81. Article 10 of the Civil and Political Covenant states, "All persons deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person." Article 7 provides further, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." For further discussion of applicable standards, see Chapter IX. "Visits to Persons in Detention".
82. Article 9(3) of the Civil and Political Covenant states, "It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement." This norm is elaborated in United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (51).
9. Administration of juvenile justice
83. Article 14(4) of the Civil and Political Covenant provides that juvenile persons shall be entitled to procedures that will take account of their age and the desirability of promoting their rehabilitation. Further, Article 40 of the Convention on the Rights of the Child states, inter alia, that any child alleged to have committed a criminal offence shall be treated in a manner consistent with the child's sense of dignity and worth as well as the desirability of promoting the child's reintegration in society. Such a child alleged to have infringed the penal law is entitled to the presumption of innocence; to be informed promptly of the charges; to have the matter determined without delay by a competent, independent, and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance, and usually in the presence of the child's parents or legal guardians.
The accused child should also not be compelled to give testimony or guilt, but should be able to examine or have examined adverse witnesses; to obtain the participation and examination of witnesses under conditions of equality; to have the free assistance of an interpreter, if needed; to have his privacy respected; and to have any adverse decision reviewed by a higher competent, independent and impartial authority or judicial body according to law.
In addition, Governments are requested to promote the establishment of measures for dealing with children in conflict with the law without resorting to judicial proceedings. Article 40 also requires that a variety of dispositions, such a care, guidance, and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
Article 37 of the Child Convention provides that children deprived of their liberty shall be treated in a manner which takes into account the needs of the person of his or her age, and be separated from adults unless it is considered in the child's best interest not to do so.
Article 6 of the Civil and Political Covenant states that sentence of death shall not be imposed for crimes committed by persons below eighteen years of age.
These standards are further developed and clarified in a number of specific instruments, including the also United Nations Rules for the Protection of Juveniles Deprived of their Liberty (52); the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) (53); and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") (54).
10. Rights of minorities, non-nationals, and refugees
84. Article 26 of the Civil and Political Covenant provides,
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
85. As mentioned above, Article 14(3)(f) of the Covenant provides an accused person with the right to "have the free assistance of an interpreter if he cannot understand or speak the language used in court". Article 27 also provides minorities with the right to use their own language. Further protections are established in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (55).
86. Article 13 of the Civil and Political Covenant indicates that an alien lawfully in the territory of a country may be expelled only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against expulsion, to have the case reviewed, and to be represented for that purpose before the competent authority. Additional protections are set forth in the Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in which They Live (56).
87. Article 16 of the Convention relating to the Status of Refugees as applied by the Protocol relating to the Status of Refugees, assures refugees free access to the courts of law and equal treatment with nationals of the country pertaining to access to the courts, including legal assistance. For further discussion of applicable standards, see Chapter X "Monitoring and protecting the human rights of refugees and/or internally displaced persons living in camps" and Chapter XI "Monitoring and protecting the human rights of returning refugees (returnees) and internally displaced persons (IDPs)".
11. The human rights of women in the administration of justice
88. As cited above, Article 26 of the Civil and Political Covenant establishes that "[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law", and forbids discrimination on any ground including sex. Article 3 also provides that ratifying governments "undertake to ensure the equal rights of men and women to the enjoyment of all civil and political rights set forth in" the Covenant. In addition, Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women forbids discrimination against women. Article 2 of that Convention further obligates all ratifying governments to "establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination."
Also relevant is the Declaration on the Elimination of Violence Against Women (57). Of particular importance is that the definition of "violence against women" contained in article 1 of the Declaration includes "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women [...], whether occurring in public or in private life". The definition encompasses, in addition to violence perpetrated or condoned by the State, violence occurring within the family (domestic violence), and within the community (article 2). The Declaration establishes the duty for the State - through its law enforcement and administration of justice systems - to prevent, investigate and punish all acts of violence against women, whether perpetrated by the State or by private persons, to provide women who are subjected to violence with access to the mechanisms of justice and to just and effective remedies, and to ensure that law enforcement officers and public officials concerned receive training to sensitize them to the needs of women.
12. Protection and redress for victims of crime and abuses of power
89. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power (58) provides that victims of crime and/or abuse of power should receive access to justice, prompt redress and fair treatment (paras. 4-7); restitution (paras. 8-11); compensation (paras. 12-13); as well as the necessary material, medical, psychological and social assistance (paras. 14-17). Pursuant to paragraph 1, "victims of crime" mean persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. The definition of "victims of abuse of power" is identical to "victims of crime", except that harm is caused by acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.
90. There are a number of other practical concerns of victims, including the need for information about their rights, participation in the accused's trial or other process of criminal justice, privacy, freedom from harassment or retaliation, and reassurance about their safety.
13. The administration of justice under states of emergency
91. As discussed more fully in Chapter III "Applicable international human rights and humanitarian law: the framework", Article 4 of the International Covenant on Civil and Political Rights states that governments may derogate from (that is, not apply) certain rights in times of public emergency which threaten the life of the nation, are properly announced, and about which the UN is notified. There are, however, certain rights which are non-derogable including the right to be free from discrimination; rights guaranteed under international law, including the Geneva Conventions and the two Protocols; as well as the rights to be free from arbitrary deprivation of life; torture and other ill-treatment; slavery; imprisonment for debt; retroactive penalty; non-recognition of the law; and infringement of freedom of thought, conscience, and religion. The following section ("The right to habeas corpus, amparo, or similar remedy") also contains important information relevant to the administration of justice in states of emergency.
14. The right to habeas corpus, amparo, or similar remedy
92. While the Covenant on Civil and Political Rights does not use the terms "habeas corpus" or "amparo", it contains several provisions which guarantee the essence of the habeas corpus writ and aspects of the amparo procedure which are similar in impact to habeas corpus. Article 9 (3) states,
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. . . .
Article 9(4) states,
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
93. The right to habeas corpus and related aspects of amparo are also inherent in Article 2(3), which states,
3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
94. Although habeas corpus and the related aspects of amparo for challenging detention were not expressly made nonderogable under Article 4 of the International Covenant on Civil and Political Rights, habeas corpus/amparo have gradually been recognized as nonderogable. These developments have occurred because of the recognition that without the ability to challenge the legality of one's detention, especially in times of public emergency, one will never be assured of the other fundamental rights in the Covenant.
95. Two Advisory Opinions issued by the Inter-American Court of Human Rights have concurred in holding that habeas corpus and amparo -- the legal remedies guaranteed in Articles 7(6) and 25(1) of the American Convention -- may not be suspended, even in emergency situations, because they are among the "judicial guarantees essential" to protect the rights whose suspension Article 27(2) of the American Convention prohibits (59). In the first opinion, the Court pointed out that habeas corpus performs a vital role in assuring that a person's life and physical integrity are respected. In its second Advisory Opinion, the Inter-American Court stated that the "essential" judicial guarantees not subject to derogation according to Article 27 include habeas corpus, amparo, and any other effective remedy before judges or competent tribunals which is designed to guarantee respect for the rights and freedoms whose suspension are not authorized by the American Convention.
15. Role of the courts in protecting economic and social rights
96. As discussed more fully in Chapter IV -I "Right to Property" and Chapter IV-J "Right to Housing and Other Economic, Social and Cultural Rights", international human rights law (the Universal Declaration and the Economic, Social and Cultural covenant in particular) protects a wide range of economic, social and cultural rights, including right to and in work, trade union rights, social security rights, family rights, the right to an adequate standard of living, housing and food rights, rights to health care, education rights and rights to cultural life. Although human rights law has traditionally focused primarily upon the role of the courts in protecting civil and political rights, judiciaries have an equally important role to play in securing compliance with the individual economic, social and cultural rights as well. In many countries, individuals and groups entitled to the enjoyment of particular economic, social and cultural rights are turning increasingly to the judicial system as a means of claiming these rights.
Although the judicial enforceability (justiciability) of economic, social, and cultural rights has been the subject of some controversy, perspectives denying the justiciability of these rights have been repeatedly shown to be far more reflections of misunderstandings than grounded in the status of human rights law (60). The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (61) state, "Although the full realization of the rights recognized in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time. . . . States parties shall provide for effective remedies including, where appropriate, judicial remedies."
Indeed, a new complaint procedure was established in connection with the Eropean Social Charter in 1995 and negotiations are continuing within the UN context for a similar procedure under the Economic, Social and Cultural Covenant. The UN Committee on Economic, Social and Cultural Rights has stated, for example, that "Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to the rights which may, in accordance with the national legal system, be considered justiciable. [...] There are a number of other provisions in the Economic, Social and Cultural Covenant, including articles 3,7 (a) (i), 8, 10(3), 13(2)(a), 13(3), 13(4) and 15(3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems" (62).
F. Freedom of Opinion and Expression (63)
97. Article 19 of the Universal Declaration states, "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through the media and regardless of frontiers."
98. The Civil and Political Covenant declares in Article 19:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of the present article carri