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Published online by Cambridge University Press: 28 February 2017
1 United Nations, International Covenant on Economic, Social and Cultural Rights, 1966, available at <http://www.unhchr.ch/html/menu3/b/a_cescr.htm>.
2 Both documents were adopted at meetings organized by the International Commission of Jurists (ICJ) in co-operation with the Urban Morgan Institute on Human Rights (Cincinnati, Ohio) and the University of Limburg (Maastricht, the Netherlands).
3 These aspects of each obligation are explained in General Comment 12 on The Right to Adequate Food, UN ESCOR, 20th Sess., Agenda Item 7, para. 15, UN Doc. E/C.12/1999/5 (1999).
4 An example of national implementation of this concept is Soobramoney v. Minister of Health, KwaZulu-Natal, 1997 (12) BCLR 1696 (CC), in which the South African Constitutional Court took into account the need for the government to decide how best to allocate state resources for the health service. The appellant, who suffered from chronic problems, complained that he was not receiving regular dialysis to prolong his life; the Court decided that there was no unqualified state obligation to meet the appellant’s medical needs. Because South Africa was experiencing a severe shortage of medical supplies and personnel, only emergency treatment could be expected as of right.
5 See General Comment 3 on the Nature of States Parties Obligations, UN Escor, 5th Sess., UN Doc. E/1991/23 (1990).
6 See, e.g., Government of the Republic of South Africa v. Grootboom, 2000 BCLR 1169 (CC).
7 Measures to deal with terrorism can easily have an adverse effect on international law in ways that are not evident until their implications are carefully analyzed. This is one of the reasons it has not yet been possible to get agreement on an international definition of “terrorism.” For an overview of this issue, including its historical background and its human rights implications, see Federico Andieu-Guzman, Terrorism and Human Rights (2002). An update of this study, outlining international and regional developments and their implications in relation to human rights law, can be found Federico Andreu-Guzman, New Challenges, Old Dangers (2003).
8 App. No. 332/57, 1 Eur. H.R. Rep. 15 (1961) (Court judgment).
9 App. No. 5310/71, 2 Eur. H.R. Rep. 25 (1978) (Court judgment).
10 App. Nos. 14553/89, 14554/89, 17 Eur. H.R. Rep. 539 (1993) (Court judgment).
11 App. No. 21987/93, 23 Eur. H.R. Rep. 553 (1996) (Court judgment).
12 Castillo Petruzzi v. Peru, Ser. C, No. 42 (Inter-Am. C.H.R. May 30, 1999), available at <http://www.oas.org>.
13 UN ESCOR, 1950th mtg., para. 16, UN Doc. CCPR/C/21/Rev.l/Add.ll (2001), available at <http://www.unhcr.ch>.
14 Habeas Corpus in Emergency Situations, Advisory Op. OC-8/87, Series A, No. 8 (Inter-Am. C.H.R. Jan. 30, 1987); Judicial Guarantees in States of Emergency, Series A, No. 9 (Inter-Am. C.H.R. Oct. 6, 1987).
15 A proposal by Mexico to introduce such a mechanism at the 58th Session of the UN Commission on Human Rights failed for lack of sufficient support, and with strong opposition from some states. UN General Assembly Resolution 57/219, adopted on December 18, 2002, asks the UN High Commissioner for Human Rights to study the issue of respect for human rights in the fight against terrorism but enables him to make only general recommendations, thus effectively excluding individual analysis.
16 See S.C. Res. 1373 (Sept. 28, 2001), available at <http://www.un.org/terrorism/sc.htm>. “ See UN Charter art. 51, para. 11.
20 See, for example, the 2002 and 2003 reports of the Special Representative of the United Nations Secretary-General on Human Rights Defenders: UN Doc. E/CN.4/2002/106, paras. 97,103 (2002); UN Dor. E/CN.4/2003/104, paras. 19, 20 (2003).
21 See Renni, David, Bush orders shoot to kill on terrorists, Telegraph (London), Dec. 16, 2002,Google Scholar available at <http://www.telegraph.co.uk/news/main.jhtmlPxmb/news/2002/12/16/wbushl6.xml>.
22 Excerpts from interview by Anthony Dworkin with Charles Allen, Deputy General Counsel for International Affairs, U.S. Department of Defense, (Dec. 16, 2002), available at <http://www.crimesofwar.org/oimews/news-pentagon-trans.html>.
24 See Question of the impunity of perpetrators of human rights violations (civil and political), revised final report paper prepared by Mr. L. Joinet pursuant to sub-commission decision 1996/119, UN Doc. E/CN.4/Sub.2/1997/20/Rev.1 (Oct. 2, 1997); Radolfo Mattarollo, Recent Argentine Jurisprudence in the Matter of Crimes Against Humanity in 62-63 Int’l Comm’n Jurists Rev.: Impunity Crimes Against Humanity and Forced Disappearance (Sept. 2001).
26 For the position of the UN that amnesty is not to be granted for serious international crimes, see the Seventh Report of the Secretary-General, on the United Nations Observer Mission in Sierra Leone, UN Doc. S/1999/836,para. 17 (July 30, 1999), available at <http://www.un.org/Docs/sc/reports/1999/sgrep99.htm>.
27 See GA Res. 57/228 (Feb. 27, 2003), available at <http://www.nri.ca/fortherecord2002/vol3/cambodiaga.htrn>.
28 See Report of the Secretary General on the Implementation of the Report of the Panel on United Nations Peace Operations, UN Gaor, 55th Sess., Agenda Item 86, UN Doc. A/55/305-S/2000/809 (2000), available at <http://www.un.org/peace/reports/peace_operations/docs/55_502e.pdf>.
29 First Geneva Convention art. 49 (1949); Second Geneva Convention art. 50 (1949); Third Geneva Convention art. 129 (1949); Fourth Geneva Convention art. 146 (1949).
30 Universal jurisdiction can be both permissive (as in the case of acts of aggression or war crimes not amounting to grave breaches) or obligatory. For a general overview of universal jurisdiction, see Program in Law and Public Affairs, Princeton Principles on Universal Jurisdiction (2001). For an excellent study on international law and state practice, including national legislation, in relation to universal jurisdiction, see Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation (2001), available at <http://www.web.amnesty.org/library/index/ENGIOR530042001>.
31 The revision was party a result of the unfortunate decision of the International Court of Justice concerning immunities of Heads of State and Foreign Ministers in the Case Concerning the Arrest Warrant of Hapril2000 (Democratic Republic of the Congo V. Belgium), Judgement, (ICJ Feb. 14, 2002), available at <http://www.icj-cij.org>, and partly because of the very high profile cases submitted to Belgian courts. The revised law allows the government to decide that cases will not be followed up if, inter alia, the country concerned has courts that provide fair trials.
32 Over fifty states provide for universal jurisdiction over international crimes, and many more have jurisdiction over such crimes that is wider than for purely national laws. This practice will be included in Volume Ii of the International Committee of the Red Cross’s study on customary international humanitarian law, due to published by Cambridge University Press in late 2003.
33 See Sarte case, Danish High Court, Judgment of 25 November, 1994 (finding a Bosnian Croat guilty of numerous charges of war crimes).
34 See Djajic case, Supreme Court of Bavaria, Judgment of 23 May 1997 (concerning a national of the former Yugoslavia found guilty of the grave breach of murder) Jorgic case Higher Regional Court at Dusseldorf, Judgment of 12 December 2000 (finding a Bosnian Serb guilty of complicity in genocide); Sokolovu case, Higher Regional Court at Düsseldorf, Judgment of 29 November 1999 (finding a Bosnian Serb guilty of complicity in genocide, deprivation of liberty, and dangerous bodily injury for acts committed in Bosnia and Herzegovina); Kusljic case, Federal Supreme Court, Judgment of 21 February 2001 (finding a Bosnian national guilty of the grave breach of murder).
35 See Knesevic case, Supreme Court, Judgment of 11 November 1997 (involving a Bosnian Serb accused of having committed war crimes, in which the Court confirmed universal criminal jurisdiction, irrespective of whether or not the Netherlands had taken part in the conflict in the former Yugoslavia.
36 See Niyonteze case, Swiss Military Tribunal at Lausanne Judgment of 30 April 1999 (convicting a Rwandan national of violations of common Article 3 of the Geneva Conventions and Additional Protocol Ii); Grabez case, Swiss Military Tribunal at Lausanne, Judgment of 18 April 1997, (acquitting a person born in the former Yugoslavia who had been charged with violations of the laws and customs of war in Bosnia and Herzegovina for lack of sufficient evidence).
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