IS407-Discussion Questions/Lecture Note §

Week 2 §

Key terms §

Rule of law:

Liberty:

Natural rights: Due process: fair treatment through the normal judicial system Declaration: an important official statement about a particular situation or plan, or the act of making this statement. (no legal binding/enforceable) Convention, covenant, treaty: the agreement between states that is legally binding to the contracting states. A clause: a specific section within

Magna Carta §

The background §

In 539 BC, Cyrus the Great conquered the city of Babylon, freed slaves to return home, and declared that people should have a choice in their religion. This event is considered by many to be the world’s first charter of human rights in history.

After King John became the king of England, he had control over some territories in France. In 1204, the King of France took Normandy and Anjou from John which caused him to raise taxes in England. Raising the tax makes him unpopular among the barons and, in 1212, there had been rumors of a plot to murder him.

In June 1215, Magna Carta, a Latin word meaning Great Charter, was made as the solution that the king and the rebel barons created to settle this dispute. It is a principle/charter that the king and his government were not above the law. It sought to prevent the king from exploiting his power and placed limits of royal authority by establishing law as a power in itself.

After around 3 months, the English barons forced King John out of power at Runnymede and invited Louis, the son of the king of France to take the crown of England in John’s place. In 1216, King John died, and his son, Henry (Henry III), was crowned. From then onward, Magna Carta was repeatedly confirmed and reissued and became well-known across England.

Legacy §

Magna Carta was a big step for rights because it established that the king was in fact subject to the law. Magna Carta’s clauses provided the basis for important principles in English law developed in the fourteenth through to the seventeenth century. There are 63 clauses in Magna Carta. For the main part, the clauses do not deal with legal principles but instead relate to the regulation of feudal customs and the operation of the justice system. There are clauses on the granting of taxes, towns and trade, the extent and regulation of the royal forest, debt, the Church, and the restoration of peace. However, only 4 of the 63 clauses in the Magna Carta are still valid today which are clauses 1, 13, 39, and 40. Despite this, the charter still holds timeless fundamental values such as the right to justice, a fair trial, and the emphasis on grants of taxation requiring the consent of the kingdom.

Clause 39: “No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgment of his peers and the law of the land.”

Clause 40: “To no one will we sell, to no one will we deny or delay right or justice.”

The phrasing, ‘to no one’ and ‘no free man’ gave these provisions a universal quality that is still applicable today in a way that many of the clauses relating specifically to feudal custom are not. The main point of the document is: “No one is above the law, not even the king. Everyone has a right to a fair trial.”

Significance §

Magna Carta was not intended to be a great charter of rights for all people, but designed by the barons to ensure that their rights were protected against the king’s power. However, Magna Carta became significant because it is a statement of law that applied to the kings as well as to his subjects. Magna Carta was an attempt by the rebels to state what they believed established custom to be, and by implication, where they believed the king was breaking the rules.

1776 American Declaration of Independence §

European want to colonize America for religious and economic purposes.

In 1706, Queen Elizabeth was the first to send people to Virginia to establish colony. There are 13 colonies, they enforce their religion and way to doing things.

In 1765, King George imposed more taxes, but the common people reject the claim of the king and there were a lot of uproar. Leading to “American Revolutionary War” resulting…

Under George Washington, a new nation is established as “the United States of America” with the declaration of independent. The most of important part is the preamble. In short, it’s about them wanting to make decision for themselves, not the king.

The Bill of Rights 1971 §

• 1st Protects freedom of religion, freedom of speech, freedom of the press, freedom of assembly and the right to petition the government. September 25, 1789 December 15, 1791 2 years, 81 days
• 2nd Protects the right to keep and bear arms September 25, 1789 December 15, 1791 2 years, 81 days
• 3rd Restricts the quartering of soldiers in private homes September 25, 1789 December 15, 1791 2 years, 81 days
• 4th Prohibits unreasonable searches and seizures and sets out requirements for search warrants based on probable cause September 25, 1789 December 15, 1791 2 years, 81 days
• 5th Sets out rules for indictment by grand jury and eminent domain, protects the right to due process, and prohibits self-incrimination and double jeopardy September 25, 1789 December 15, 1791 2 years, 81 days
• 6th Protects the right to a speedy public trial by jury, to notification of criminal accusations, to confront the accuser, to obtain witnesses and to retain counsel September 25, 1789 December 15, 1791 2 years, 81 days
• 7th Provides for the right to a jury trial in civil lawsuits September 25, 1789 December 15, 1791 2 years, 81 days
• 8th Prohibits excessive fines and excessive bail, as well as cruel and unusual punishment September 25, 1789 December 15, 1791 2 years, 81 days
• 9th States that rights not enumerated in the Constitution are retained by the people September 25, 1789 December 15, 1791 2 years, 81 days
• 10th States that the federal government possesses only those powers delegated, or enumerated, to it through the Constitution, and that all other powers are reserved to the States. September 25, 1789 December 15, 1791 2 years, 81 days

The Declaration of the Rights of Man and of the Citizen §

The history of the French declaration on the Rights of Man and the Citizen of 1789 §

• What is the French declaration on the Rights of Man and the Citizen: is a human civil rights document from the French Revolution which came into existence during the summer of 1789.
• How it was created: It was issued by France’s National Constituent Assembly (succeed by legislative assembly) in 1789. Firstly, various drafts of the declaration were brought to vote by Assembly during late August of 1789. It passes with 17 articles and was ratified on 5 October by King Louis XVI (the last King of France before the fall of the monarchy during the French Revolution) with the pressure from Assembly and the people.
• What was the influence: (1) Inspired by the America Declaration of Independence in 1776 and the spirit of Enlightenment.
• Why it was created (What purpose did the declaration uphold): Ensure the rights of the people and stop the exploitation of the absolute monarchy system in France.
• What is its impact: (1) mark a new political era (change the absolute monarchy): The declaration emphasizes on the nature and inalienable rights (freedom, ownership, security, resistance to oppression). It also recognized equality before the law of everyone, the justice system, and the separation of powers (individual liberty and democracy); (2) it inspired similar declaration in several European and Latin American countries throughout the 19th century.

Similarity and the differences with the U.S. declaration 1776 §

• What is the US declaration of independence: It is the pronouncement adopted by the Second Continental Congress (13 colonies in America) which emphasized why the 13 colonies at war with the Kingdom of Great Britain regarded themselves as 13 independent sovereign states and no longer under the British rule.
• Similarity: (1) the need/stressing on freedom and equality
• Difference: (1) reasoning of composing the declaration- US wants to stress the outlaw action of the UK in oppressing the colonies (try to obtain freedom from the dictator GB). While France aims to emphasize the individual right of each citizen (more about the individual level). Different times, priorities and just stand for the same causes. (US fight for freedom and equality while French declaration enforcing it.)

World War II §

A quick fact about WWII. WWII is a war that was happening between 1939 until 1945. It is the biggest war in human history. The war started due to a couple of reasons. The first one is the Peace of Paris Treaty which was made in 1919 after WWI which did not satisfy the losing side such as Germany, Austria, and some other countries. This treaty caused them to give up their military and to pay for reparations. Another reason is the economic issues. The European economy was stabilized by the 1920s, the Great Depression in the United States affected a lot of countries in Central Europe which led to an increase of support for Communism and Facism. Nationalism is also one of the reasons for the cause of war. After the defeat in WWI, defeating countries developed an even stronger patriotism. Moreover, due to political unrest and economic problems, dictatorships in Germany, Italy, Japan, and the Soviet Union were on the rise. World War II was divided by two groups known as the Allied Powers including the United States, The Great Britain, the Soviet Union and some other countries. Another group is the Axis Powers which had three major players such as Germany, Italy and Japan. Because of these reasons, in March 1939 Germany broke the Munich Agreement signed with the British Prime Minister Neville Chamberlain by invading Czechoslovakia. Germany later then invaded Poland in Danzig which became the first military engagement of WWII. Two days after the invasion, Britain and France declared a war on Germany in order to defend Poland under the treaty of Versailles. In 1940, Winston Churchill took over the office. Germany launched a surprise attack and stormed through Belgium, Luxembourg, and the Netherlands in order to advance their troops into Northern France. From that time on a full scale of world war had started between the allies and the axis. Many casualties were killed by bombing raids, massacre, starvation and other war related causes. Within the peirod of World War II, there was also another side event which is a well known genocide known as the holocaust. The mass killing was committed by Nazi Germany against the Jewish people. The mass killing started between 1941-1945 which many of the Jews were deported to different concentration camps that were designed by the Nazi. As a result around 6 million Jews were killed in those concentration camps. Those Camp prisoners endured systematic cruelty; beating, starvation and torture. While German Doctors, including the notorious Dr Mengele, performed brutal experiments. Japan also committed atrocities as well in Manjuria by injecting diseases into the Chinese population for experiments. The Nazi government was depending on slave labour. Likewise, they continue to support the slavery system. Conditions in camps were brutal and degrading, and often resulted in deaths. After fighting for six years long, WWII finally ended when Germany surrendered in Europe known as Victory in Europe Day. Japan later surrendered in August in 1945, and signed the formal surrender in Tokyo Bay. The war resulted around 40,000,000-50,000,000 deaths while millions of other people especially in Europe escaped the continent and migrated to other countries. By the end of the wars the three big states including the UK, the USSR and the US worked with different organizations to repatriate those who had fled the continent as the countries in the continent were facing with shortage of workforce and economic fallback.

Operation Paperclip §

At the very end of WWII, the allied and Red Army were both in a rush to capture German scientists. Many of them were sent work in the United States respectively. Some of those scientists were allegedly involved in various crimes during the Nazi occupation of Europe.

Operation Paperclip was a secret United States intelligence program in which more than 1,600 German scientists, engineers, and technicians were taken from former Nazi Germany to the U.S. for government employment after the end of World War II in Europe, between 1945 and 1959.

The program was run by the newly-formed Joint Intelligence Objectives Agency (JIOA), whose goal was to harness German intellectual resources to help develop America’s arsenal of rockets and other biological and chemical weapons, and to ensure such coveted information did not fall into the hands of the Soviet Union.

One of the most well-known recruits was Wernher von Braun, the technical director at the Peenemunde Army Research Center in Germany who was instrumental in developing the lethal V-2 rocket that devastated England during the war. Von Braun and other rocket scientists were brought to Fort Bliss, Texas, and White Sands Proving Grounds, New Mexico, as “War Department Special Employees” to assist the U.S. Army with rocket experimentation. Von Braun later became director of NASA’s Marshall Space Flight Center and the chief architect of the Saturn V launch vehicle, which eventually propelled two dozen American astronauts to the Moon.

Massacres of Aboriginal people Australia

Australia, the aboriginal homeland, is earth’s direst and flattest continent. Only the eastern seaboard and the northern tropical forests get consistent rainfall. Hundreds of linguistically and culturally distinct aboriginal tribes have lived in harmony with this harsh environment for over 30,000 years.

After European settlers arrived in 1788, thousand of aborigines died from diseases; colonists systematically killed many others. At first contact, there were over 250,000 aborigines in Australia. The massacres ended in the 1920 leaving no more than 60,000. Since then, the population has grown, and by the next century as many as 30,000 people may legitimately claim aboriginal descent.

There are more massacre sites to be added – places where the true death toll may never be known – and many more we are still working to verify, particularly in Queensland, Western Australia, the Northern Territory and New South Wales.

In this first snapshot of the continent, we have found that there were at least 270 frontier massacres over 140 years, as part of a state-sanctioned and organised attempt to eradicate Aboriginal people.

Starting in 1794, mass killings were first carried out by British soldiers, then by police and settlers – often acting together – and later by native police, working under the command of white officers, in militia-style forces supported by colonial governments.

Current Problems

The traditional aboriginal political process is being eroded by the emergence of younger leaders who may not wish to follow the old ways and by the Australian bureaucracy, which is often impatient with aboriginal versions of participatory democracy. Aboriginal women particularly suffer from the Land Rights Commission’s tendency to send only men to investigate claims. Male officials often assume that only other men can speak for a community, so aboriginal women are doubly silenced - as aborigines and as women.

The Australian system frustrates many aborigines. Some law enforcement officials are dismissive or openly discriminate when aborigines are the victims of crime. Three-fourth of the women interviewed by an aboriginal worker in Adelaide’s Rape Crises Center reported that rape of aboriginal women was common. The rape survivors, hesitate to report attacks to the Australian police, considering them racist and sexist.

Substance abuse and other stress-related illnesses are common. Poverty contributes to maslnutrition, infant mortality, overcrowding, the lack of sanitation and clean water, and the rapid spread of disease. Medical facilities are often far away, and rarely cooperate with traditional methods of healing.

Week 3 §

1. Please provide UN background to our classmates? From both the book and the following link. §

The United Nations was established on 24 October 1945, after its Charter had been ratified by 51 countries – including 5 Permanent member states China, France, Russia, the United Kingdom, and the United States. The main pillars of the UN are to maintain international peace and security, develop friendly relations among member states, and promote social progress, better living standards as well as human rights. The principle of the sovereign equality of all its Members is to abide by the member states and fulfill in good faith the obligations assumed by them in accordance with the present Charter in order to ensure to all of them the rights and benefits resulting from membership. Since its establishment; the UN is still working to maintain international peace and security, providing humanitarian assistance to those in need, protecting human rights, and upholding international law. Additionally, the UN has also set sustainable development goals – no poverty, zero hunger, quality education, well-being, and even gender equality – for 2030 to achieve a better and more sustainable future for us all.

2. What are the roles and objectives of the UN? Can you also give examples? §

The roles and objectives of the UN include:

• To maintain international peace and security. Ex: UN Peace-making, Peace-building, and conflict resolutions and mechanisms that contribute to the decline (40%) of conflicts around the world since after the Cold War, Cambodia, newly decolonized states… (role)
• To develop friendly relations among nations. Ex: Arms Control, Treaty on the Non-Proliferation of Nuclear Weapons to reduce nuclear arms between states. (role)
• To achieve international cooperation in order to solve economic, social, and cultural problems and to promote human rights. Ex: The UN Development Programme (UNDP), with staff in 170 countries, to reduce poverty, promote good governance, address crises, and preserve the environment. UN has OHCHR to promote and protect human rights issue
• To build a more sustainable world, through education programs on climate, promoter of better human rights, such as goals established in the SDG to be achieved by 2030.

3. What is the Organization for Security and Co-operation in Europe? Brief history and objectives! §

The origin of the Organization for Security and Co-operation in Europe Conference on Security can be traced back to the early 1970s when the Co-operation in Europe (CSCE) was established on 1 August 1975 after having reached an agreement between the East and the West states through two years of meetings in Helsinki and Geneva. It was created to serve as a multilateral forum for dialogue and negotiation on key communications for political-military, economic and environmental, and human rights issues with ten fundamental principles to govern the behavior of States towards their citizens, as well as towards each other. Until 1990, the CSCE functioned mainly as a series of meetings and conferences that built on and extended the participating States’ commitments, while periodically reviewing their implementation. However, with the end of the Cold War, the Paris Summit of November 1990 set the CSCE on a new course. In the Charter of Paris for a New Europe, the CSCE was called upon to play its part in managing the historic change taking place in Europe and responding to the new challenges of the post-Cold War period, which led to its acquiring permanent institutions and operational capabilities. The name was changed from CSCE to the Organization for Security and Co-operation in Europe (OSCE) in December 1994 in order to enlarge the scope of CSCE to include energy as part of their dialogue. Currently, OSCE has a total number of members of 57 states in North America, Europe, and Asia, and it is also the world’s largest regional security organization. The OSCE works for stability, peace, and democracy for more than a billion people, through political dialogue about shared values and through practical work that makes a lasting difference.

4. What is Nuremberg Criminal Tribunal? And how has it influenced the international human rights movement? §

The Nuremberg trials were a series of military tribunals held after World War II by the Allies using international law and the laws of war. Twenty-four major political and military leaders of Nazi Germany, indicted for aggressive war, war crimes, and crimes against humanity, were brought to trial before the International Military Tribunal. The Nuremberg trials initiated a movement for the prompt establishment of a permanent international human rights movement, eventually leading over fifty years later to the adoption of the Statute of the International Criminal Court. There are also some influences on the international human rights movement including:

• Expanding individual liability under international law from ‘universal crimes’, such as piracy on the high seas to war crimes and ‘crimes against humanity in which change the nature of international law.
• No longer the preserve solely of nations: Meaning individuals liable for crimes against humanity and war crimes, sentencing them accordingly.- The Tribunal shaped those crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. Example: ECCC
• The new United Nations drew on the early potential for individual responsibility, and it follows, individual rights, progressively elaborating on the tentative references to human rights incorporated into the Charter of the organization.

5. What is Human Rights Council? §

6. How many Human Rights Treaty-based bodies are there? §

7. Describe the building processes of international human rights law! §

• The first step in building the international human rights law by the UN was the affirmation that a body of international human rights exists.
  • Advocated by the UN, the foundation of international human rights protection is formed by the formation of the Universal Declaration of Human Rights in 1948 and Civil and Political Rights and Economic, Social and Cultural Rights International Covenants of 1966.
  • The International Bill of Rights includes global membership and is the starting point of any modern examination of international human rights.
  • The Universal Declaration lists down the accepted standard of rights which all humans are indiscriminately attached to. The International Covenants, on the other hand, emphasize on these rights in a more detailed, legally enforceable manner.
  • Acting under the UN, International committees are responsible for monitoring the implementation of the Covenants.
• However, these instruments are only the starting point for all examinations of international human rights. The United Nations has adopted many other international instruments adding further clarity and definition to the provisions of the Universal Declaration.

8. What are the reasons behind the establishment of the International Criminal Court? Please draw from the book and the following link. §

• The International Criminal Court (ICC) is a permanent international court established to investigate, prosecute, and convict individuals accused of the most serious crimes of concern to the international community, including genocide, crimes against humanity, war crimes, and aggression. During the twentieth century’s battles, some of the most horrific acts were perpetrated. Unfortunately, many of these international law offenses have gone unpunished. The United Nations enacted the Convention on the Prevention and Punishment of Genocide.
• The United Nations General Assembly acknowledged the necessity for a permanent international court to deal with international disputes and types of horrors that had recently taken place. Following the end of the Cold War, the idea of a worldwide criminal justice system resurfaced. However, while UN discussions on the ICC Statutes were ongoing, the world watched as horrible crimes were committed in the former Yugoslavia and Rwanda.
• The United Nations Security Council formed an ad hoc tribunal for each of these circumstances in reaction to the crimes.

9. From Section 3.2.2. of Chapter 3, who are the vulnerable groups? Why do they need §

protection and based on what conventions?

• Based on the Chapter, the vulnerable groups are refugees, migrant workers, women, children and the indigenous people.
• For refugees, the need to protect this group is because the outcome of WWII resulted in a flow of refugees and displaced people especially in Europe who are vulnerable to fully live their life and abstain from fundamental rights. For the specific conventions that emphasized on this group is the Convention relating to the Status of Refugees in 1951 which first focus on refugees in Europe then extended to focus on other regions and all of the refugees,
• For migrant workers, they are considered as vulnerable people because they usually face abuse or exploitation of rights by foreigners. Hence, the ILO established two guidelines to protect migrant workers from abuse and those include (1) Convention No 97 Migration for Employment and (2) the 1975 Migrant Workers. These conventions provide protection such as (1) right from healthcare to culture (2) comprehensive employment right (3) right to leave and return and (4) sound, equitable and humane conditions.
• As women usually face inequality of status compared to men and are usually being discriminated against in society or having a high-rank job, women are grouped as vulnerable groups. The body that works on promoting the right is UN Women which ensures equal women participation in society.
• Children are also included as a vulnerable group since they are solely dependent on others for a living and even their own rights. As for this, the convention for protecting children ‘s rights is the 1989 United Nations Convention on the Rights of the Child.
• Lastly, the indigenous people are also subject to right abuse, especially by the ruler. They are usually the minority and ethnic group who do not have self-determination of their own right. A declaration on the Rights of Indigenous People emphasized on protecting this group’s rights.

10. What are the impacts of the United Nations on international human rights? §

• The United Nations defends international human rights in various ways.
• The United Nations has established a program called the Technical Cooperation Program in the Field of Human Rights so that the states can get technical assistance in the promotion and protection of human rights.
• Moreover, the states can receive support from the UN in the term of the training programs which include those set up for the benefit of lawyers, judges, the armed forces, and the legal enforcement agencies
• Last but not least, the United Nations has created the international human rights laws in order to promote and protect international human rights.

Week 4 §

Universal Periodic Review §

1. Mention studies which regard human rights monitoring bodies as having limited and some cases insufficient impacts,… §

The studies which regard human rights monitoring bodies as having limited and some case insufficient impact:

• Heyns and Viljoen (2002) conclude that the United Nations treaty monitoring bodies had a very limited demonstrable impact within the state.
• Alebeek and Nollkaemper (2012) argue that only 12 percent compliance with the view of the human rights committee which was declining over time
• In 2014, a cross-study of Finland, the Netherland, and New Zealand found that the concluding and recommendation of the human rights treaty bodies have a limited influence on the domestic human rights practice of states (Krommendijk 2014)
• Viljoen and Louw (2007) found the overall lack of state compliance with the recommendation of the Africa Commission on Human and People’s Rights.

2. Point out studies which mention weaknesses or negative points of UPR. §

Studies that mention the weakness and negative points of UPR, the ”skeptic” group such as the UN Watch contends the UPR system is flawed, institutionally weak, and needs a new replacement. They argue that ”any mechanism based on cooperation and dialogue would be ineffective in scrutinizing human rights violations by states. However, adopting the naming and shaming approach fails to harness the potential value of cooperation and dialogue in helping to cause human changes within states, and there is evidence to suggest that the naming and shaming technique has been ineffective.” In addition, Allehone, an Ethiopian diplomat and Human Rights scholar, is critical of the UPR, because African states manipulated the system to limit NGO participation and mutually consensual to not criticize one another. De Frouville and Bernaz maintain that UPR has failed to live up to expectations because it overshadows the hard work of the treaty bodies and is wholly dependent on the goodwill of states. and thus cannot make legal interpretation of the human rights obligations of states. Lastly, Newark argues that ”UPR suffers from the disadvantage that states’ performance in the fields of human rights is assessed by other states and not independent experts.”

3. Talk about studies which mention about positive points of UPR. §

The positive points of UPR that have been mentioned in the studies:

• First point, UPR is a mechanism that encourages universal and effective state interaction and pushes forward the dialogue between governments and civil society. As we can see in ASEAN, the UPR has improved the relationship of the member states and the global human rights mechanisms.
• Secondly, the UPR mechanism has cooperative and inclusive characteristics which can motivate the states to comply with human rights standards.
• Last but not least, due to the little impact that UN treaty bodies, as well as other monitoring mechanisms, have on the states, the existence of UPR is necessary.

4. What are Etone’s arguments? §

Etone (the author) argues that the UPR mechanism can be of great utility in enforcing human rights law with certain effectiveness by harnessing the power of peer pressure and global culture. Additionally, there is a number of complementary and beneficial connections between Acculturation theory and UPR that acculturation favors UPR based on peer review of not involving a selected group of insiders (dispelling the perception of us versus them), and the micro-process of identification of acculturation (with international governmental organizations providing universal membership). The author further argues that acculturation provides a suitable theoretical framework to understand the potential of the UPR mechanism on the influence of the state. Simply put, the UPR provides a platform for acculturation to promote cooperation and encourages continuous improvement of the human rights situations within the states.

5. What does the author mention about UPR through the theory of acculturation? §

The acculturation theory provides a more appropriate alternative theoretical framework for understanding the significant impact of the UPR process. As the acculturation theory does not incorporate any element of coercion or material inducement; however, concentrates on the various social and cognitive pressures that influence states so this theory is most fitted in evaluating a monitoring mechanism that tends to be inclusive, cooperative, and collaborative. The UPR is a monitoring mechanism so it can affect and influence human rights within states in a nonconfrontational manner. Acculturation actually favors the UPR mechanism as it is based on peer review and not configured to include any specifically selected group of insiders or experts examining or reviewing those considered as outsiders or states which helps in dispelling the perception of us versus them.

The Human Rights Council §

International Criminal Court §

1. Rome Statute of ICC: The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). They are adopted in Rome in 1998 and came into force in 2002. Establish based on 4 core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. ICC will only investigate cases that fall into 4 cores when states cannot do it themselves

• The International Criminal Court (ICC): It is the world’s first permanent international court to prosecute individuals responsible for the most heinous crimes under international laws, such as war crimes, crimes against humanity.
• When can the ICC investigate crimes: A referral from a State Party or the UNSC is what is needed for the prosecutor to investigate. The Prosecutor can initiate an investigation on their own initiation with authorization from the Judges of the Pre-Trial Chamber.

1. Case in Myanmar:

• The ICC decides to investigate the issue in Myanmar and Bangladesh border or this issue can be investigated because there is reasonable and enough evidence to demonstrate that there is a humanitarian crime such as persecution which is against the Rohingya people in Myanmar and Bangladesh border. Moreover, they have noticed that there are about 600,000 to one million Rohingya who was forced by Myanmar military force to move from Myanmar to Bangladesh. At the same time, although Myanmar is not a State Party of Rome Statute, the ICC is still able to involve this case because it has also happened in Bangladesh territory which ratified the ICC Rome statute in 2010. Therefore, the ICC can have jurisdiction over this issue.

1. Case in Ukraine:

• ICC prosecutor announces that ICC has decided to open an investigation into the Situation in Ukraine.
• There are 2 possible ways here. One would be the country itself as a party state of the Rome Statute to refer the case to the ICC, but Ukraine is not a party state of Rome Statute of ICC.
• However, it has twice legally accepted the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, if the Court chooses to exercise it.
• The International Criminal Court (ICC) has confirmed that there is a reasonable foundation to launch an investigation into alleged war crimes and crimes against humanity in Ukraine in regard to the events already examined by the Office during the preliminary examination.
• The next step is to seek and get authorization from the Court’s Pre-Trial Chamber to launch an investigation.
• The alternative option is for an ICC State Party to report the case to my Office, which would allow us to begin conducting impartial and objective investigations right away.
• Relating to this, on March 02, ICC has received referrals of the Situation in Ukraine from the 39 ICC States Parties.
• These referrals allow the International Criminal Court (ICC) to begin an investigation into the situation in Ukraine on November 21, 2013, encompassing any previous or present claims of war crimes, crimes against humanity, or genocide perpetrated on any part of Ukraine’s territory by any individual.
• The crimes that ICC will investigate in Ukraine included the crime of genocide (cleaning particular ethnic or racial or religious group), war crime, the attack over civilians and the property or resident side, and the crime against humanity (murder, enslavement, rape, or torture). While the crime of aggression (planning or preparing an act of aggression) will not be investigated because ICC does not have jurisdiction to investigate if the states are not the members of ICC.
• The person that ICC targeted can be anyone (head of state, senior political figure since they aren’t immune from prosecution). Thus, Russia president, senior political
• Weakness of ICC: Non-binding, non-state parties of the Rome of Statute of ICC, cooperation with states.

CEDAW §

Regional Systems §

Week 5 §

Group 1 §

What Are Truth Commissions? §

Introduction §

Truth commissions are official, nonjudicial bodies of a limited duration established to determine the facts, causes, and consequences of past human rights violations. By giving special attention to testimonies, they provide victims with recognition, often after prolonged periods of social stigmatization and skepticism. It also contributes to prosecution and reparation through their finding and recommendation by assisting divided societies to overcome a culture of silence and distrust, and helping to identify institutional reforms needed to prevent new violations.

Objectives of Truth Commissions §

Three objectives are fundamental:

• Establish the facts about violent events that remain disputed or denied. Some commissions have limited their work to clarifying the factual circumstances of abuses, but most have also analyzed the facts to determine the historical and social contexts that gave rise to them, and whether further criminal investigation is appropriate.
• Protect, acknowledge, and empower victims and survivors. Commissions establish a relationship with victims and survivors not only as informers, but also as rights-holders, partners, and as people whose experiences deserve recognition.
• Inform policy and encourage change in the behavior of groups and institutions, thus contributing to social and political transformation. The final ****recommendations of a truth commission try to identify and address the causes of abuse and violations in order to prevent their recurrence. Closely related to this objective, some commissions consider reconciliation between former rival communities to be of primary importance.

When and How Are Truth Commissions Established? §

Truth commissions are typically created during periods of political change, such as after the fall of an authoritarian regime or at the end of an armed conflict. A commitment to establish a truth commission is often included in peace agreements, transition-to-democracy negotiations, and in some cases, as a clause in a new constitution.

The way that a country establishes a truth commission is largely determined by the political and institutional environment and the characteristics of the transition. Only local actors can make an informed decision about the best approach to ensuring a strong commission. Typically, the executive or legislative branch of government establishes a truth commission. The form chosen depends on the institutional and political realities in each country, with both approaches having advantages and disadvantages. What is most important is the need to ensure the commission’s independence, credibility, and effectiveness.

Truth Commissions Established Outside the State Apparatus §

When there is insufficient political will or governmental capacity to establish an effective inquiry, civil society, local governments, and other institutions have stepped in to create innovative, truth commission-like inquiries. By mobilizing victims and survivors, documenting abuse, and issuing formal findings, these inquiries have often generated public support and catalyzed official action, leading to stronger official inquiries and other measures.

Key Characteristics of a Truth Commission §

• Complementarity to criminal justice: Truth commissions are not judicial inquiries. They do not establish individual criminal responsibility, so if they gather evidence useful for a criminal investigation, their inquiries may precede or complement the work of a court of law.
• Focus on gross violations of human rights: Truth commissions focus their investigations on the rights protecting a person’s physical and mental integrity, serious crimes and abuses, as well as economic crimes and corruption.
• Period of investigation: typically cover longer periods of abuse, sometimes decades, allowing the opportunity to identify historical patterns of violence and systemic violations.
• Large amounts of evidence: Because of their broad focus, both in terms of violations and time period, commissions may gather massive information from direct witnesses, archives, and other sources, allowing commissions to incorporate different methodological approaches, like statistical analysis, in their work.
• Victim-centered approach: Victims and survivors are primary sources of information for truth commissions, and many commissions have a legal mandate to ensure the well-being of victims such as emergency help, psychological support, security, and legal aid.

Commissions operate in good faith with the assumption that victims will tell the truth but recognize the fallibility of personal testimony. While they maintain a duty to establish the truth through investigations, they typically refrain from methods like cross-examination, which may be onerous or have the potential for retraumatizing victims.

Ensuring the Strength of a Truth Commission §

• Commissions need to be credible: The credibility of a truth commission can be supported by:
  • Selecting members with excellent moral and professional reputations
  • Guaranteeing full independence from political interference
  • Establishing transparent procedures for research
  • Establishing dialogue with civil society, in particular victims’ organizations.
• Commissions need support from stakeholders: Truth commissions require the support of national political authorities and cooperation from government agencies, with appropriate provision of resources from civil society institutions.
• Commissions should earn the respect of society: An effective truth commission requires the cooperation and respect of a wide variety of social and political agents and citizenry. This applies to all aspects from the establishment to reporting.
• Commissions must consistently observe a code of conduct: The operations need to exemplify the new, fairer practices that citizens should expect from their government. Research, management, and public outreach must respect the fundamental standards of human rights and ensure the integrity and highest standards of professional ethics at all times.

Procedural Fairness §

Procedural fairness should be respected by all persons involved in a commission, including those giving statements and those who may be found responsible for violations. The following rights should be meticulously respected: the right to be heard, the right against self-incrimination, and the right to legal representation in appropriate circumstances.

Truth Commissions and Reconciliation §

Reconciliation should be understood as a long-term social process that cannot be achieved by a truth commission alone, in a short amount of time. At best, commissions can help to create better conditions for reconciliation by encouraging institutional reform and changes in the political culture of a state, and by restoring the dignity of those most affected by violence.

It is important to highlight that in some post-conflict societies, there are no significant challenges of reconciliation to be achieved, and therefore the truth commission will focus on the typical task of strengthening democracy.

Sierra Leone Truth Commission §

Background of conflict §

The conflict is a civil war that had been ongoing for nine years and there was extreme violence and brutality from both sides. With the support from some West African regional forces, the Sierra Leone Army and the Civil Defense Force on the government side were able to fight against the Revolutionary United Front (RUF), which was known for its brutality by causing horrific civil unrest. Fortunately, in July 1999, the war eventually came to an end after they signed a peace accord in Lomé, Togo. Although the violence briefly broke out again in 2000, finally in January 2002, peace was formally declared.

Sierra Leonean Truth Commission §

Commissions operate in good faith by assuming that victims will tell the truth, however, the fallibility of personal testimony is also acknowledged. The commission’s duty is to establish the truth through investigations, still, they hold back from methods like cross-examination, which may be onerous or have the potential for retraumatizing victims.

The operations of truth commissions need to exemplify the new, fairer practices that citizens should expect from their government. Research, management, and public outreach must respect the fundamental standards of human rights and ensure the integrity and highest standards of professional ethics at all times. Such values and principles should be publicly proclaimed by the truth commission at the start of its operations.

Some Truth Commission has tried to mend individual relations between offenders and their communities; others have played a part in state and institutional reform in order to restore civic trust. Still, others have had the goal of looking into the root causes of conflict, providing compensation to victims, or securing justice for victims. Commissions can provide support in creating better conditions for reconciliation by encouraging institutional reform and changes in the political culture of a state, and by restoring the dignity and justice of those most affected by violence.

Personal Understanding and Takeaway §

From what we learned, the Truth Commission plays a major role in bringing about both accountability of the perpetrators of violence and the reconciliation process thereafter. It’s important to note that what the Commission has uncovered was an unknown documentation that investigates the deep roots of the war, and the extent of international involvement and awareness of it. We also find it interesting that the Commission, despite challenges and disagreements of procedures with the Court, ensures a follow-up committee that would submit public reports on the Commission’s recommendations and from the party of the Sierra Leonean government. With a 1-year mandate, and a short-term extension for the Truth Commission, we wonder what would have turned out differently if the mandate was more well-funded and stayed longer to fully understand the causes of the conflict. On top of that, it’s impressive to see the Commission being able to achieve, in the aftermath of war crimes noted for their brutalities, the reconciliations between perpetrators and their victims.