Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjorn Eide

Thirty-six papers, covering a wide range of human rights and international law issues, are presented as a tribute to Eide, a former director of the Norwegian Institute for Human Rights and member of the United Nations Sub-commission on Prevention of Discrimination and Protection of Minorities. They are organized into sections that broadly address international criminal law; economic, social, and cultural rights; minority and related rights; and other human rights issues. The papers largely approach their topics from the perspective of the development of international law and primarily address theoretical questions, although a number of more concrete topics are included. Examples of topics discussed include the developing principle of universal jurisdiction, the impact of human rights conventions on the ad hoc international criminal tribunals, the right to food in armed conflict, the definition of cultural rights, the relationship between citizenship and human rights, and human rights for children. Annotation ©2004 Book News, Inc., Portland, OR (booknews.com) Title Page Copyright Page Preface Foreword Table of Contents Part One: International Criminal Law I. The origin and evolution of crimes against humanity: an uneasy encounter between positive law and moral outrage 1. Introduction 2. Origins of crimes against humanity 3. Contemporary evolution through international jurisprudence 4. The ICC Statute 5. Conclusion II. The influence of the European Court of Human Rights on international criminal tribunals–some methodological remarks 1. Introduction: the international criminal judge and the sources of law 1.1. The sources from which international criminal judges can draw 1.2. Two methods for relying on a legal corpus other than the Statutes, relevant international treaties and customary inter -national rules 1.2.1. The “wise” approach 1.2.2. The “wild” approach 2. A transversal analysis of the influence of the European Court on the case law of the international criminal tribunals 2.1. The importance of reliance on the case law of the European Court 2.2. Outline of the paper 2.3. The judges in The Hague and Arusha are aware of the limits of reliance on other judicial bodies, imposed by the specific nature of international criminal proceedings 2.4. Recourse to the case law of the Strasbourg Court has served to clarify concepts that are not defined in the relevant international texts 2.5. Strasbourg case law has often been used solely to support or corroborate conclusions based on the relevant international law, in the search for a sort of a posteriori legitimacy 2.6. Strasbourg case law is sometimes referred to purely ad abun-dantiam 2.7. In some cases, the International Criminal Tribunals have ignored Strasbourg case law 2.8. In some cases, international criminal judges have gone beyond Strasbourg case law 3. Concluding remarks III. Criminalizing individuals for acts of aggression committed by States 1. The leap from establishing a principle to grappling with its contents 2. Is the crime of aggression fundamentally distinguishable from other international crimes and, if so, why? 3. Defeating aggressive war as an instrument of national policy 4. Criminalization requires a clear and predictable definition of acts of aggression 5. Institutional mechanisms to determine an act of aggression and thereby to trigger the Court’s jurisdiction 6. Clarifications are needed with regard to the principles of criminal law applicable to individual responsibility in the context of the definition of the crime, but also the determination by other bodies of an act of aggression 7. Essential underpinnings of the International Criminal Court 8. Applying the principle of complementarity to the crime of aggression 9. In guise of concluding observations IV. Acts of terrorism and crimes within the jurisdiction of the International Criminal Court 1. Introduction 2. Terrorism and the mandate of the IMT 3. Forum and venue–the convenience of the ICC 4. On war 5. The characteristics of terrorism 6. Ius ad bellum and ius in bello 7. The Statute of the ICC 8. Some concluding remarks V. Contemporary universal jurisdiction 1. Definition 2. A long-established principle 3. The broad range of crimes subject to universal jurisdiction around the world 4. Setbacks and victories since the Pinochet case 5. Overcoming the obstacles to universal jurisdiction VI. The first ever international trial on genocide: notes on Akayesu 1. Brief summary of the case 2. The significance of the Trial Chamber’s judgement 2.1. The Trial Chamber’s findings on genocide 2.2. The Trial Chamber’s findings on rape 2.3. Trial Chamber findings on serious violations of common Article 3 2.3.1. Criminalization of violations of common Article 3 2.3.2. Who can commit “war crimes”? 3. What the Appeals Chamber added 4. Conclusions on Akayesu VII. How do human rights humanize the law of war? 1. Introduction 2. The classic law of war 3. The thresholds of applicability of humanitarian law 4. Personal applicability of humanitarian law treaties: redefining “protected persons” 5. Repatriation of prisoners of war and personal autonomy 6. Application of humanitarian law by human rights organs 7. Some concluding thoughts VIII. Impact of human rights conventions on the two ad hoc Tribunals 1. Introduction 2. General observations 2.1. Background 2.2. Legal basis and structure 2.3. Sources 3. Material jurisdiction 4. CCPR article 14 and the Tribunals 4.1. Introduction 4.2. Equality before the Tribunals 4.3. Fair trial 4.3.1. Equality of arms 4.3.2. Adversarial proceedings 4.3.3. Reasoned opinion 4.4. Public hearing 4.5. Impartial tribunal 4.6. Other requirements in CCPR article 14(1) 4.7. Presumption of innocence 4.8. Minimum rights 4.8.1. Information on the charge 4.8.2. Preparation of defence 4.8.3. Trial without undue delay 4.8.4. Legal assistance 4.8.5. Examination of witnesses 4.8.6. Interpretation 4.8.7. Self-incrimination 4.9. Review by higher tribunal 4.10. Compensation for miscarriage of justice 4.11. Non bis in idem 5. Other rights 5.1. Right to life 5.2. Humane treatment 5.3. Deprivation of liberty 5.4. Freedom of expression 6. Concluding observations Part Two: Economic, Social and Cultural Rights IX. Development, capabilities, rights: what is new about the right to development and a rights approach to development? 1. Introduction 2. Development from growth to human agency, capabilities and rights 3. Human development and the relationship to human rights 4. The right to development and development compacts 5. A rights approach to development–value added? 6. Concluding remarks X. Genetic resources for food and agriculture: International Treaty on Plant Genetic Resources for Food and Agriculture and other international agreements negotiated through the FAO Commission on Genetic Resources for Food and Agriculture 1. Introduction 2. The International Treaty on Plant Genetic Resources for Food and Agriculture 2.1. Background: the uniqueness of plant genetic resources for food and agriculture 2.2. Economic, technical and legal issues involved in a multilateral system to regulate the conservation and sustainable use of plant genetic resources for food and agriculture 2.2.1. Economic issues 2.2.2. Technical issues 2.2.3. Legal issues 2.3. Adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture 3. Other international instruments developed or being developed by the FAO Commission on Genetic Resources for Food and Agriculture 3.1. The International Code of Conduct for Plant Germplasm Collecting and Transfer 3.2. Towards a Code of Conduct on Biotechnology as it relates to genetic resources for food and agriculture 4. Final remarks XI. Human rights and humanitarian action: the right to food in armed conflict 1. Humanitarianism at the crossroads? 2. The changing context 3. Humanitarian principles 4. The international legal framework 4.1. International humanitarian law 4.1.1. Humanitarian relief and the right to food in Geneva law 4.1.2. Food as a weapon 4.1.3. Humanitarian relief and the principle of neutrality in IHL 4.1.4. The right to food in other emergency-related law 4.2. Human rights law and its applicability in armed conflict 4.2.1. Derogation of human rights “in times of public emergency” 4.2.2. The right to adequate food and nutrition as a human right 4.3. Complementarity and convergence of IHL and IHRL 4.3.1. The interface between humanitarian law and human rights law 4.3.2. The IHL concept of assistance and protection: towards an integrated IHL-HRL concept of protection in armed conflict 5. International law and humanitarian action in practice: in search of an ethical framework 5.1. Reassessing approaches to humanitarian action 5.2. Realising the right to food in armed conflict under different ethical paradigms 5.3. Humanitarianism, international law and politics–the broader debate 5.3.1. Neutrality versus solidarity 5.3.2. Rights in humanitarian action 5.4. Ethical dilemmas and their possible resolution: examples from South Sudan and Liberia 6. Conclusion XII. Defining cultural rights 1. Definition of culture and cultural rights 2. The architecture of Article 15 of the ICESCR 3. Related rights 4. Cultural identity and diversity 4.1. Cultural identity 4.2. Cultural diversity 5. Access to and participation in cultural life 6. Conservation and diffusion of culture 6.1. Museums 6.2. Traditional culture and folklore 6.3. Circulation of educational, scientific and cultural materials 6.4. Satellite broadcasting 7. Cultural co-operation 8. Protection of cultural property from loss 8.1. Protection of cultural property from destruction 8.2. Landscapes and sites and historic areas 8.3. Movable cultural property 8.4. Protection of cultural property from illicit import, export and transfer 9. Protection of creators, transmitters and interpreters of culture 9.1. Copyright 9.2. Status of the artist, scientific researchers and of translators 10. Final remarks XIII. The long process of giving content to an economic, social and cultural right: twenty-five years with the case of the right to adequate food 1. Introduction: everything has a beginning 2. The initial test: how to operationalise an ESCR, for whom and by whom–the case of food and nutrition 2.1. Nutrition and human rights 2.2. From the general to the particular 3. A human right in search of content–the debate in the early 1980s 4. Further elaboration of a framework within which to identify specific state obligations for the right to food 4.1. The evolving concept of food and nutrition security–a conceptual basis for what one has a right to 4.3. Intellectual breakthrough: the right to food matrix 5. The first study for the United Nations 6. Networking and consolidation of the right to food movement 7. The right to food at the World Food Summit, Rome 1996: leverage and follow-up 7.1. The lobby 7.2. The negotiations 7.3. The mandate to the High Commissioner for Human Rights 7.4. The NGO Draft Code of Conduct on the Right to Adequate Food as a Human Right 7.5. The second, updated United Nations study on the right to food 7.6. General Comment No. 12 of the United Nations Committee on Economic, Social and Cultural Rights 7.7. The IPRFD International Encounters 2000 in Oslo and Geneva 8. Towards implementation: triggering national dialogues 9. The right to food as an entry point to understanding and operationa-lizing economic, social and cultural rights 9.1. Law-in-the-making 9.2. Universalisation vs. globalisation 9.3. Links with specific development challenges 10. Bringing it together–towards international guidelines for implementation of the right to food XIV. Development co-operation and the right to development 1. The operational model of the Right to Development–Development Compact (RTD-DC) 2. The importance of economic growth in the right to development 3. Operational elements 4. CDF/PRSP/CCA-UNDAF frameworks 4.1. Comprehensive Development Framework (CDF) 4.2. Poverty Reduction Strategy Papers (PRSP) 4.3. Common Country Assessment and United Nations Development Assistance Framework (CCA/UNDAF) 4.4. Principles and policy objectives of PRSP/CDF 4.4.1. Long-term vision and strategy 4.4.2. Country ownership 4.4.3. Strategic partnership 4.4.4. Focus on results 4.5. Overall achievements 5. Shared principles and basic difference with the RTD-DC model 6. Analysis of the rights-based norms in the different frameworks 6.1. Participatory 6.2. Accountable 6.3. Transparent 6.4. Equitable 6.5. Non-discriminatory 7. NEPAD: the New Partnership for Africa’s Development 7.1. Goals 7.2. NEPAD and RTD-DC model 7.2.1. Peer review 7.2.2. Financing 7.2.3. Democracy and good governance 7.2.4. Financing development compacts 8. Conclusion: overview of development co-operation XV. The obligation of international assistance and co-operation in the International Conventant on Economic, Social and Cultural Rights 1. Introduction 2. The theory of obligations 3. Extraterritorial obligations in the ICESCR 3.1. Article 2(1) 3.2. Article 11 3.3. Articles 22 and 23 4. Implications XVI. Business and human rights 1. Introduction 2. Developments in corporate codes of conduct 3. Drafting history of the human rights responsibilities 4. Issues regarding implementation 4.1. Methods of creating binding responsibilities 4.2. Avenues for implementation 4.2.1. Business enterprises 4.2.2. Investors, lenders, and consumers 4.2.3. Business groups or trade associations 4.2.4. Unions 4.2.5. NGOs 4.2.6. Intergovernmental organisations other than the United Nations 4.2.7. States 4.2.8. United Nations 5. Conclusion Part Three: Minority and Related Rights XVII. The Greenlanders and their human rights choices 1. Introduction 2. The rights of indigenous peoples 3. Peoples and the right of self-determination 4. Concluding observations XVIII. Protection of kin-minorities: international standards and Russian practice 1. Introduction 2. The definition of minorities 3. Protecting minorities at the international and national level: the Russian example 4. Conclusion XIX. The contemporary protection of minorities 1. The historical basis for the protection of minorities 2. The protection of minorities at the universal level 3. The protection of minorities in Europe 4. Implementation 5. Conclusion XX. Minority rights: additional rights or added protection? 1. Introduction 2. Critique of the “separate nature” of minority rights 3. Defence of interdependence 4. Does non-discrimination suffice? XXI. The Hague, Oslo and Lund Recommendations regarding minority questions 1. Language issues 2. Educational issues 3. Participation of minorities in public life XXII. The United Nations Sub-Commission Working Group on Minorities: what protection for minority rights? 1. Introduction 2. The establishment of the Working Group 3. Participation in, and working methods of, the Working Group 4. Promoting a better understanding of the United Nations Declaration 4.1. Deliberations of the Working Group 4.1.1. Protection of the existence and identity of minorities 4.1.2. The right of persons belonging to minorities to enjoy their own culture 4.1.3. Right of persons belonging to minorities to profess and practice their own religion 4.1.4. Right of minorities to use their own language, in private and in public 4.1.5. The right of persons belonging to minorities to participation 4.1.6. The right of persons belonging to minorities to learn their mother tongue and have instruction in their mother tongue 4.1.7. Knowledge of the history, traditions, language and culture of minorities 4.2. Expert seminars of the Working Group 4.2.1. Seminar on multicultural and intercultural education –Geneva 1997 4.2.2. Seminar on effective participation of minorities –Flensburg 1999 4.2.3. International seminar on intercultural and multicultural education–Montreal 1999 4.2.4. Seminar for representatives of global and regional organs, treaty bodies and specialised agencies–Durban 2001 4.3. Visits to States 4.4. Commentary to the Declaration 5. Contribution of the Working Group to the protection of minority rights Part Four: Other Human Rights Issues XXIII. “Political” and “legal” control mechanisms revisited 1. Introduction 2. Realities and perspectives towards the end of the Cold War 3. Strengths and weaknesses of charter-based and treaty-based mechanisms 4. Time for reassessment 5. The post-Cold War climate and the Vienna Conference 6. Human rights treaty monitoring in progress 7. The charter-based mechanisms; proliferation but also progress? 8. Concluding remarks XXIV. Citizenship and human rights: some thoughts on a complex relationship 1. Introduction 2. Citizenship and human rights treaties as “contractual relationships” 3. Conceptions of citizenship 4. Nation-building as extensions of citizenship rights in Europe 5. Paradoxes of modern citizenship 6. Human rights and citizenship: the “problem” of sovereignty 7. The human rights approach 8. Conclusion XXV. International human rights law, the environment and indigenous peoples 1. An overview 2. Inter-linkages between human rights and the environment 3. International human rights instruments 3.1. Universal Declaration of Human Rights 3.2. Global human rights treaties and other international instruments 3.3. Regional human rights treaties 4. Indigenous peoples and the environment 5. Contemporary non-binding law 6. Conclusions 7. Selected decisions and recommendations by international and regional treaty bodies 7.1. United Nations Human Rights Committee 7.2. Inter-American Commission on Human Rights 7.3. Committee on the Elimination of Racial Discrimination (CERD) 8. Some relevant cases XXVI. Terrorism and human rights after 2001 1. The “ordinary” meaning of the word “terrorism” 2. How to define terrorism in legal terms 3. How do terrorism and anti-terrorism campaigns affect human rights? XXVII. La lutte contre l’impunité 1. Lutte contre l’impunité et distinction entre droits civils et poli-tiques, et droits économiques et sociaux 2. Précisions ou complements à apporter aux principes 3. Les Commissions non judiciaires d’enquête 4. La compensation pour l’esclavage et la colonisation 5. Adoption de l’ensemble de principes par l’Assemblée générate XXVIII. National human rights institutions implementing human rights 1. Introduction 2. What is a national human rights institution? 3. Monitoring and advising–law or politics? 4. National institutions and ESCR? 5. The role of national institutions in relation to regional and international human rights mechanisms 6. Concluding remarks XXIX. Some reflections on the rules and practices followed by the Sub-Commission on the Promotion and Protection of Human Rights 1. Introduction 2. Procedural framework of the Sub-Commission 3. The relationship between the guidelines and the ECOSOC rules 4. Conclusion XXX. Treatment of persons deprived of liberty: analysis of the Human Rights Committee’s case law under Article 10 of the International Covenant on Civil and Political Rights (ICCPR) 1. Article 10: the right of all persons in custody to be treated humanely 2. Article 10(1) 3. The Uruguay years 4. The Jamaica years 5. Article 10(2) 6. Article 10(3) XXXI. Struggling against racism in the aftermath of 11 September 2001 1. Introduction 2. The combat against terrorism 3. Racism and racial discrimination 4. Globalisation XXXII. Leadership in human rights 1. Introduction 2. Pre-League of Nations 3. Inter-war leaders 4. The Nuclear Commission on Human Rights 5. The Commission on Human Rights 6. The Sub-Commission 7. The Secretaries-General 7.1. Lie 7.2. Hammarskjöld 7.3. U Thant 7.4. Waldheim 7.5. Pérez de Cuéllar 7.6. Boutros-Ghali 7.7. Annan 8. The heads of the United Nations human rights programme 8.1. Humphrey 8.2. Schreiber 8.3. Van Boven 8.4. Herndl 8.5. Mårtenson 8.6. Blanca 8.7. Fall 8.8. Ayala Lasso 8.9. Robinson 9. Assessment 10. Current challenges 10.1. The implementation of standards 10.2. The petitions procedures 10.3. Human rights investigations and other responses to gross violations of human rights 10.4. Technical co-operation 10.5. Regional co-operation 10.6. Human rights education 10.7. Research and the right to development 10.8. Mainstreaming and integrating human rights: development, conflict prevention, peacemaking, peacekeeping and peacebuilding 10.9. Human rights in conflicts 10.10. Travels and country visits 11. The future 12. Conclusion XXXIII. The sources of fundamental rights of the European Union: a structural overview 1. Introduction 2. A general structure 3. Comments to the general structure 4. Trends and prospects XXXIV. Human rights for children 1. The human rights instruments concerning children 2. Do children have human rights? 3. The best interest of the child 4. Parents’ rights and children’s rights 5. Final remarks XXXV. Reflections on human rights, sovereignty of states and the principle of non-intervention 1. Introduction 2. Human rights as a problem of implementation 3. State sovereignty: the need for a proper understanding 4. State sovereignty and non-intervention 5. Is there a case for an international standard on the use of force by states in humanitarian crises? 6. In conclusion XXXVI. Droits de l’homme et pratiques traditionnelles 1. Introduction 2. L’origine des pratiques traditionelles 3. Les femmes, victimes des pratiques traditionnelles Bibliography Index Foreword / Sergio Vieira De Mello -- Part One: International Criminal Law -- I. The Origin And Evolution Of Crimes Against Humanity: An Uneasy Encounter Between Positive Law And Moral Outrage / Payam Akhavan -- Ii. The Influence Of The European Court Of Human Rights On International Criminal Tribunals--some Methodological Remarks / Antonio Cassese -- Iii. Criminalizing Individuals For Acts Of Aggression Committed By States / Rolf Einar Fife -- Iv. Acts Of Terrorism And Crimes Within The Jurisdiction Of The International Criminal Court / Hanne Sophie Greve -- V. Contemporary Universal Jurisdiction / Christopher Keith Hall -- Vi. The First Ever International Trial On Genocide: Notes On Akayesu / Frederik Harhoff -- Vii. How Do Human Rights Humanize The Law Of War? / Theodor Meron -- Viii. Impact Of Human Rights Conventions On The Two Ad Hoc Tribunals / Erik Mose -- Part Two: Economic, Social And Cultural Rights. Ix. Development, Capabilities, Rights: What Is New About The Right To Development And A Rights Approach To Development? / Bård Anders Andreassen -- X. Genetic Resources For Food And Agriculture: International Treaty On Plant Genetic Resources For Food And Agriculture And Other International Agreements Negotiated Through The Fao Commission On Genetic Resources For Food And Agriculture / José T. Esquinas-alcázar -- Xi. Human Rights And Humanitarian Action: The Right To Food In Armed Conflict / Uwe Kracht -- Xii. Defining Cultural Rights / Stephen P. Marks -- Xiii. The Long Process Of Giving Content To An Economic, Social And Cultural Right: Twenty-five Years With The Case Of The Right To Adequate Food / Arne Oshaug And Wenche Barth Eide -- Xiv. Development Co-operation And The Right To Development / Arjun Sengupta -- Xv. The Obligation Of International Assistance And Co-operation In The International Conventant [sic] On Economic, Social And Cultural Rights / Sigrun I. Skogly -- Xvi. Business And Human Rights / David Weissbrodt And Muria Kruger -- Part Three: Minority And Related Rights. Xvii. The Greenlanders And Their Human Rights Choices / Gudmundur Alfredsson -- Xviii. Protection Of Kin-minorities: International Standards And Russian Practice / Stanislav V. Chernichenko -- Xix. The Contemporary Protection Of Minorities / John Packer -- Xx. Minority Rights: Additional Rights Or Added Protection? / Martin Scheinin -- Xxi. The Hague, Oslo And Lund Recommendations Regarding Minority Questions / Max Van Der Stoel -- Xxii. The United Nations Sub-commission Working Group On Minorities: What Protection For Minority Rights? / Cecilia Thompson -- Part Four: Other Human Rights Issues. Xxiii. Political And Legal Control Mechanisms Revisited / Theo Van Boven -- Xxiv. Citizenship And Human Rights: Some Thoughts On A Complex Relationship / Nils A. Butenschon -- Xxv. International Human Rights Law, The Environment And Indigenous Peoples / Erica-irene A. Daes -- Xxvi. Terrorism And Human Rights After 2001 / Vojin Dimitrijević -- Xxvii. La Lutte Contre L'impunité / Louis Joinet -- Xxviii. National Human Rights Institutions Implementing Human Rights / Morten Kjærum -- Xxix. Some Reflections On The Rules And Practices Followed By The Sub-commission On The Promotion And Protection Of Human Rights / Guennadi Lebakine -- Xxx. Treatment Of Persons Deprived Of Liberty: Analysis Of The Human Rights Committee's Case Law Under Article 10 Of The International Covenant On Civil And Political Rights (iccpr) / Jakob Th. Möller -- Xxxi. Struggling Against Racism In The Aftermath Of 11 September 2001 / Paulo Sérgio Pinheiro -- Xxxii. Leadership In Human Rights / Bertrand G. Ramcharan -- Xxxiii. The Sources Of Fundamental Rights Of The European Union: A Structural Overview / Allan Rosas -- Xxxiv. Human Rights For Children / Lucy Smith -- Xxxv. Reflections On Human Rights, Sovereignty Of States And The Principle Of Non-intervention / Danilo Türk -- Xxxvi. Droits De L'homme Et Pratiques Traditionnelles / Hamila Embarek Warzazi -- Bibliography / Betty Haugen. Morten Bergsmo (editor). Bibliography Of Eide's Works By Betty Haugen: P. [779]-814. Includes Bibliographical References And Index. This book contains essays by leading international experts in the areas of international criminal law and international human rights law. Part One of the book contains eight essays in international criminal law, covering issues such as the crime of aggression; terrorism and the Statute of the International Criminal Court; the evolution of the law on crimes against humanity and genocide; the doctrine of universal jurisdiction; and the relationship between international human rights and international criminal law jurisprudence. Part Two has eight essays on economic, social and cultural rights, covering inter alia the right to development; genetic resources for food and agriculture; the right to food (also in armed conflict); the definition of cultural rights; and business and human rights. Part Three has six essays on minority rights dealing with issues such as the role of the Working Group on Minorities; the Hague, Oslo and Lund recommendations regarding minority questions; the protection of kin-minorities; and the situation of the Greenlanders. Part Four has fourteen essays on human rights issues such as citizenship and human rights; human rights law, the environment and indigenous peoples; the role of human rights institutions; leadership in the human rights movement; the sources of fundamental rights in the European Union; and human rights and traditional practices. The book also contains a comprehensive bibliography of Asbjørn Eide.