The International Commission of Jurists: Global Advocates for Human Rights

8. Setting Standards and Procedures

Chapter 8 Setting Standards and Procedures The United Nations Charter was proclaimed in the name of "We the Peoples." The principal decision-makers in the Organization are Governments ... [which] in many instances cannot be considered as genuine representatives of the people .... The international law of human rights is a peoples' oriented law and it is only natural that the shaping of this law should be a process in which representative sectors of society participate. This is a logical requirement of democracy. - Theo van Boven I Advocacy for international human rights law resembles the U.S. civil rights movement. Just as American civil rights leaders appealed for federal protection against segregationist states, so human rights groups lobbied for international protection against national governments . NAACP litigation forced school desegregation, and mass demonstrations prompted federal laws on employment discrimination, voting rights, and fair housing. International human rights NGOs neither have courts in which to litigate nor elected legislators to influence with votes and campaign contributions. Instead the ICJ used technical expertise and elite contacts to lobby public officials for limits on state power. Just as civil rights leaders sought both new laws and institutions, human rights advocates campaigned for both standards and procedures . African-Americans demanded voting rights and federal registrars , laws against job discrimination, and an Equal Employment Opportunity Commission. Without a world court to hear individual grievances, the ICJ had even greater need to institute procedures for 166 Chapter 8 protecting rights. A U.N. Commissioner for Human Rights could have institutionalized procedures to challenge many different crimes against humanity. Instead the lawmaking U.N. Commission on Human Rights disregarded proper separation of powers and passed judgment on offending governments. Part-time implementation procedures proliferated with new human rights treaties. NGOs promoted many different rapporteurs, working groups, and committees on torture, disappearances, summary executions, arbitrary detention, and women's and children's rights. States consistently resisted meaningful enforcement mechanisms. The U.N. Human Rights Committee and two regional commissions may have increased rather than satisfied demands for more effective institutions. The worst offenders remained beyond the law's reach, unwilling to ratify or comply with the comprehensive human rights treaties. Perhaps states could be persuaded to accept treaties limited to a single fundamental right. NGOs soon filled the legislative agenda with proposed norms and improved procedures on torture, religious liberty, prisoners of conscience, and the rights of women, children, and minorities. With minimal direction from members, staff largely determined the ICJ's legislative priorities: torture, disappearances, arbitrary detention, states of emergency, and the African Charter on Human and Peoples' Rights. Some third world jurists blocked ICJ support for an optional protocol to abolish the death penalty. Chapter 10, on the Centre for the Independence of Judges and Lawyers (CIJL), deals separately with ICJ drafted standards to assure an independent bench and bar. Forum shopping in the United States leads civil rights groups to different state and federal courts or legislatures in search of sympathetic judges and friendly lawmakers. At the international level, the ICJ advanced its proposals through different U.N. agencies, European and Latin American regional institutions, and the Japanese Diet. U.N. Sub-Commission experts were so responsive that the Commission on Human Rights became the most frequented path to the U.N. General Assembly. An alternate route through Vienna involved the Congress on the Prevention of Crime and the Treatment of Offenders and its Committee on Crime Prevention and Control. Governments that kidnap and torture do not ratify treaties that undercut their power. U.S. laws govern Alabama far more than U.N. treaties affect South Africa. Yet even outlaw governments that totally reject treaty restraints may not legally practice slavery and other crimes against humanity. The ICJ promoted new standards to make torture and disappearances universally proscribed crimes. When states Setting Standards and Procedures 167 would not approve legally binding conventions, the IC] promoted declarations and principles that could later be invoked as customary international law. Torture: U.N. and European Conventions Amnesty International first aroused the international conscience about torture in 1973. 2 To promote action at the national level, the IC] recommended amendments to the Standard Minimum Rules for the Treatment of Prisoners. MacDermot sought legal protection not merely for torture victims but for all detainees subjected to any type of mistreatment. At the Fifth U.N. Congress on the Prevention of Crime and Treatment of Offenders, the IC] recommended twentyseven principles to...