The phrase “human rights” may be used in an abstract and philosophical sense, either as denoting a special category of moral claim that all humans may invoke or, more pragmatically, as the manifestation of these claims in positive law, for example, as constitutional guarantees to hold Governments accountable under national legal processes. While the first understanding of the phrase may be referred to as “human rights”, the second is described herein as “human rights law” and, International Law on Human Rights is what it amounts to when dealing at international level.
International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights
All societies have grappled with human rights issues. Philosophers of every race and creed have for centuries been concerned with the nature of humanity, interpersonal relationships, and the position of individuals as members of groups. The concept of human rights did not originate from any particular part of the world. Arguably, all peoples of the world do not assent to the same basic values and beliefs, but what is certain is that every society has been concerned with the notion of social justice, the relationship between the individual and his/her political authorities.
While the origin of “human rights” lies in the nature and inception of the human being itself, as articulated in all the world’s major religions and moral philosophy, “human rights law” though is a more recent phenomenon that is closely associated with the rise of the liberal democratic State. Whereas International Human Rights Law came into practice and prominence more lately.
Though historically limited solely to relations between States, international law has over the years been warming up to human rights. It has of course taken years for the International Law to change course and begin to entertain human rights but it is changing. The outbreak of the Second World War and the atrocities that took place during the war was the main motive for the change of attitude. The United Nations Declaration of Human Rights is the first authoritative international footprint on the path towards the collective affirmation by the international community for the supremacy of the human being over his man-made institutions.
The international human rights movement was strengthened when the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) on 10 December 1948. Drafted as ‘a common standard of achievement for all peoples and nations’, the Declaration for the first time in human history spell out basic civil, political, economic, social and cultural rights that all human beings should enjoy. It has over time been widely accepted as the fundamental norms of human rights that everyone should respect and protect. The UDHR, together with the International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, form the so-called International Bill of Human Rights.
A series of international human rights treaties and other instruments adopted since 1945 have conferred legal form on inherent human rights and developed the body of international human rights. Other instruments have been adopted at the regional level reflecting the particular human rights concerns of the region and providing for specific mechanisms of protection. Most States have also adopted constitutions and other laws which formally protect basic human rights. While international treaties and customary law form the backbone of international human rights law other instruments, such as declarations, guidelines and principles adopted at the international level contribute to its understanding, implementation and development. Respect for human rights requires the establishment of the rule of law at the national and international levels.
The following are the basic characteristics of human rights :
- Inherent – Human Rights are inherent because they are not granted by any person or authority. Human rights do not have to be bought, earned or inherited; they belong to people simply because they are human. Human rights are inherent to each individual.
- Fundamental – Human Rights are fundamental rights because, without them, the life and dignity of man shall be meaningless.
- Inalienable – Human rights cannot be taken away; no one has the right to deprive another person of them for any reason. People still have human rights even when the laws of their countries do not recognize them, or when they violate them – for example when slavery is practiced, slaves still have rights even though these rights are being violated. Human rights are inalienable. Human Rights are inalienable because:
- They cannot be rightfully taken away from a free individual.
- They cannot be given away or be forfeited.
- Imprescriptible– Human Rights do not prescribe and cannot be lost even if a man fails to use or assert them, even by a long passage of time.
- Indivisible – To live in dignity, all human beings are entitled to freedom, security and decent standards of living concurrently. Human rights are indivisible. Human Rights are not capable of being divided. They cannot be denied even when other rights have already been enjoyed.
- Universal – Human Rights are universal in application and they apply irrespective of one’s origin, status, or condition or place where one lives. Human rights are enforceable without a national border. Human rights are the same for all human beings regardless of race, sex, religion, political or another opinion, national or social origin. We are all born free, and equal in dignity and rights— human rights are universal.
- Interdependent – Human Rights are interdependent because the fulfillment or exercise of one cannot be had without the realization of the other
The International Law on Human Rights is the tool to fulfill the acute need to maintain peace and justice for humankind which precipitated a search for ways of strengthening international cooperation, including cooperation aimed both at protecting the human person against the arbitrary exercise of State power and at improving standards of living.
The following instruments contain the core of international human rights law
1. The Charter of the United Nations.’
2. The International Bill of Human Rights, consisting of four instruments
- The Universal Declaration of Human Rights (Universal Declaration)
- The International Covenant on Economic, Social and Cultural Rights (ICESCR)
- The International Covenant on Civil and Political Rights (ICCPR)
- The Optional Protocol to the ICCPR (Optional Protocol)
3. The American Convention on Human Rights (American Convention)
and through these instruments the international law comes into action, mostly concerning the treatment of citizens and foreigners in a territory in various circumstances as of employment, residence, treatment in war and peace, implementation of the law and various other rights and, remedies in the case of violation or infringement.
Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.
KASHMIR CONFLICT AND INTERNATIONAL HUMAN RIGHTS LAW
Kashmir conflict is not only a border dispute between India and Pakistan, rather Kashmiris are the main party of the dispute. It is a reality, which is not hidden that Kashmiris have suffered more. The human rights violations in Kashmir is same, as it is in Palestine committed by Jews over innocent people of Palestine; but in the context of Kashmir, it is committed by Indian Forces and Indian Paramilitary Forces and Police backed by India willingly.
The Kashmir problem has affected Kashmiris on both sides of the Line of Actual Control. In fact, they have been suffered in the absolute sense of the term in the previous years (Bose, 2003:14-15). After the ongoing movement started in 1989, the Kashmiris have been killed, massacred, raped, tortured, dishonored, and humiliated. According to local human rights organizations estimates, about 70,000 youths, mainly belonging to the age group of 15-25 years, have been killed by the security forces and militants; about 40,000 youths have been tortured in the interrogation centers and jailed; more than 20,000 are missing; equal number have become disabled due to injuries, torture, and psychological breakdowns; hundreds of young women have been raped by the Indian forces; elderly women have been molested repeatedly; and elder men have been dishonored; the entire population have been humiliated through the practices of parades, crackdowns by the security forces.
The international humanitarian law applicable to the conflict in Kashmir is found in Article 3 common to the four Geneva Conventions of August 12, 1949-known as “Common Article 3.” Common Article 3 provides international law and standards governing the conduct of parties in an internal armed conflict, including government forces and insurgents. Common Article 3 provides that:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
However, Common Article 3 in no way precludes the government of India from punishing persons for crimes under its domestic laws. Indeed, Human Rights Watch believes that it is the Indian government’s duty to do so. Thus, Kashmiri militants may be tried for murder, kidnapping or other crimes, so long as they are afforded the rights of due process.
Persons protected by Common Article 3 of the Geneva Conventions include all noncombatants, even if they have provided food, shelter or other partisan support to one side or the other, and members of the armed forces of either side who are in custody, are wounded or are otherwise hors de combat. If under these circumstances, such persons are summarily executed or die as a result of torture, their deaths are tantamount to murder.
The government of India is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ICCPR expressly prohibits derogation from the right to life. Thus, even during the time of emergency, “[n]o one shall be arbitrarily deprived of his life.”
The ICCPR also prohibits torture and other forms of cruel, inhuman and degrading treatment. Articles 4 and 7 of the ICCPR explicitly ban torture, even in times of national emergency or when the security of the state is threatened.
Torture, hostage-taking, and rape have all been prominent abuses in the Kashmir conflict, and it is evident that Common Article 3 forbids each of them. Rape also violates the ICCPR and Common Article 3 prohibitions on torture.
The Indian army, Special Task Force, Border Security Force, and state-sponsored paramilitary groups and village defense committees-the principal government forces operating in Jammu and Kashmir have systematically violated these fundamental norms of international human rights law. Under international law, India’s state-sponsored militias are state agents and therefore must abide by international human rights and humanitarian law. The government of India is ultimately responsible for their actions.
– Saumya Tripathi
- International Human Rights – Rohana K.M. Smith
- Research Handbook on International Human Rights Law
(Edited Edition) – Sarah Joseph and Adam McBeth
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