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LAW 3720

International Human Rights

Assignment

Student Number: 408002464

10/25/2010

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The International Covenant on Civil and Political Rights (ICCPR) is a

multilateral treaty adopted by the United Nations General Assembly on December 16, 1966. It

came into force on March 23, 1976 with State parties to the Covenant accepting the duty to

safeguard the civil and political rights of individuals.1The implementation of the ICCPR, along

with its optional protocols, is monitored by the Human Rights Committee which is given

competence to examine individual complaints by persons alleging violations of the Covenant by

State parties.2The case at hand raises two main issues. Firstly, the issue whether or not the

admissibility requirements are met and secondly, what rights did Barbaria violate and are they

covered by the ICCPR.

Individual rights may be invoked under the First Optional Protocol, hereafter the

Protocol, which also establishes the requirements for an admissible communication.3

Communications cannot be anonymous and must come from an individual(s) subject to the

jurisdiction of a State that is a party to the Protocol. Generally, a communication should be sent

in by the individual who claims that his or her rights have been violated. If the same problem is

being investigated under another international procedure or, subject to certain exceptions, all

domestic remedies have not been exhausted; it will be inadmissible.4

As has been acknowledged these rules of admissibility are not completely inviolable. If

for whatever reason (for example: death or detention incommunicado) the alleged victim is

unable to submit the communication, the Committee may consider a communication by a by a

third party, usually a family member, who is able to prove that they are acting on behalf of the

1Preamble: The States Parties to the present Covenant, Considering that, in accordance with the principles

proclaimed in the Charter of the United Nations,[...]Recognizing that, in accordance with the Universal Declaration

of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear andwant can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as

well as his economic, social and cultural rights[...]Realizing that the individual, having duties to other individualsand to the community to which he belongs, is under a responsibility to strive for the promotion and observance of

the rights recognized in the present Covenant...

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Article 1:

AState Party to the Covenant that becomes a Party to the present Protocol recognizes the competenceof the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to

be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall

be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the presentProtocol.

3Article 2: Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the

Covenant have been violated and who have exhausted all available domestic remedies may submit a written

communication to the Committee for consideration.

4Articles 2 and 3.

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alleged victim. The Committee requires a sufficient link to exist between the author and the

alleged victim in such situations and it has been confirmed in many of the Uruguayan cases that

a close family connection fulfils this requirement. Such was the state of affairs in Barbato v

Uraguay.5 Hugo Gilmet Dermit submitted on behalf of his cousins Guillermo Dermit Barbato

and Hugo Dermit Barbato, the former had died during detention while the latter was detained

incommunicado at the time of submission. The Committee allowed the communication to be

submitted given the circumstances. Consequently, it is extremely improbable that the

communication in the instant case would be held inadmissible on this ground as Anna

possessed the requisite sufficient link.

Similarly, the fact that Anna lodged a complaint with the UN Special Rapporteur is

immaterial, such a complaint is not precluded by the rule against duplicity of submissions to

international procedures.T

he Special Rapporteur is a special procedure and no considerationof the merits of the case would be involved; the process is non-judicial. This principle is

illustrated in the case ofBaboeram et al v Surinam6 where the state party contended that Mrs

Adhins submission was defeated by the fact that the same matter had already been submitted

to and was "being examined under another procedure of international investigation or

settlement," referring, inter alia, to a visit by "the Special Rapporteur on summary or arbitrary

executions of the United Nations Commission on Human Rights, Mr. Amos Wako."The court

held on that point that: a study by an intergovernmental organization of the human rights

situation in a given country of a human rights problem of a more global character such as that

of the Special Rapporteur of the Commission on Human Rights on summary or arbitrary

executions, although such studies might refer to or draw on information concerning

individuals, cannot be seen as being the same matter as the examination of individual cases

within the meaning of article 5, paragraph 2 (a), of the Protocol.7

The issue of exhausting all local remedies was also considered in Baboeram. The

authors of the communication felt that there was no possibility of a fair trial locally8 and the

5Communication No. 84/1981

6Communication Nos: 148 to 154/1983

7Paragraph 9.1

8Paragraph 6.6: 1. The highest military and civilian authorities were involved in planning and carrying out the

murders. 2. Taking into account the general atmosphere of fear and the fact that three lawyers were killedapparently because of their involvement in defending opponents of the regime one would find no lawyer prepared

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Committee agreed.9 As acknowledged by the Committee,10 the case law establishing the

principle that an ineffective or futile remedy would not trounce admissibility is extensive.11 In

relation to Annas communication the constant dismissal of her case in spite of sufficient

evidence coupled with the failure to give reason for subsequent dismissals and the promotion

of one of the offending parties, would suggest that any available domestic remedies are in effect

no remedies at all, i.e. they are futile.

The Covenant encompasses an extensive array of rights, spanning from the right to life

to the freedom of opinion. The most relevant for the purposes of this document being the right

to life.12 Article 6 is of paramount importance and combined with articles 7 through 11

constitute the core provisions of the Covenant. Article 6(1) states that all human beings have

the inherent right to life and requires that it be protected by law and not be arbitrarily taken. It

is clear from the facts of the case at hand that Barbaria failed to protect against the arbitrarydeprivation of Johns life as explicitly required in Article 6(1). Deprivation of life by the state is

a topic of the highest concern. In the case ofSuarez deGuerrero v Colombia13 a police raid

resulted in the murder of seven suspected kidnappers. Although the killings were deemed

lawful under the domestic laws, the Committee found that Suarez de Guerrero was arbitrarily

deprived of her life14 as the taking of her life was a deliberate action of the police and the

to defend such a case. 3. From official side there was neither an autopsy, nor an investigation of the death of the15 victims as is required in such a case of violent death ..."

9Paragraph 9.2 ...The Committee recalled that it had already established in numerous other cases that exhaustion

of domestic remedies could be required only to the extent that these remedies were effective and available within

the meaning of article 5, paragraph 2 (b), of the Optional Protocol. Accordingly, the Human RightsCommitteeconcluded that it was not barred by the provisions of article 5, paragraph 2 (b), of the Optional Protocol from

considering the communications.

10 Ibid

11See: Kaaber v Iceland (674/95), Vakoume v France (822/98), Weiss v Austria (1086/02)

12Articles 6, 11 and 22 respectively


14Paragraph 13.2: In the present case it is evident from the fact that seven persons lost their lives as a result of

the deliberate actions of the police that the deprivation of life was intentional. Moreover the police action was

apparently taken without warning to the victims and without giving them any opportunity to surrender to the policepatrol or offer any explanation of their presence or intentions...

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deprivation of life was intentional.There was also no evidence that the actions of the police

were necessary.

The Suarezcase illustrates the precept that arbitrary is a broader concept than

unlawful i.e. a killing may be authorized under municipal law and still be in breach of article 6.The intention behind the act and its necessity are good indicators of arbitrariness.15 In regards

to the current case it can be deduced from the circumstances16 that the intention was to

prevent Johns enquiry into the abduction and disappearance of three individuals. Such an

intention would in turn suggest arbitrariness. It also appears that his killing was beyond

unnecessary and thus a violation of his right to life.

The right to life covers several obligations of the state within its scope, most

importantly for the current purpose being the duty to investigate state killings and the duty topunish offenders for state killings. State parties should establish effective facilities and

procedures to investigate thoroughly cases of missing and disappeared persons which may

involve a violation of the right to life.17The Committees remedy in Baboeram is helpful in

illustrating this point. The Committee urged the State party to take effective steps to investigate

the killings and to bring justice any responsible persons.18 In Herrera Rubio v Colombia19,

Joaquin Herrera was arrested on suspicion of being a guerrillero and his life threatened if he

did not confess. Rubios parents were found dead shortly after he was detained.The committee

found that the investigation carried out, which failed to identify the military persons

responsible for the death, was inadequate and thus a violation of the States obligations.20The

Rubio case suggests that a simple investigation is not sufficient, it must also be effective.There

is no indication that Johns murder was ever investigated much less sufficiently and even when

15See D. McGoldrick, The Human Rights Committee, Clarendon Press, Oxford, 1994

16The fact that John had been threatened several times by the military because of his human rights advocacy work

and that the members of the mission were under constant surveillance by the military.

17General Comment 6

18Paragraph 16

19Communication No 161/83

20Paragraph 10.3

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Anna supplied overwhelming evidence identifying some of the perpetrators her case was still

dismissed. Bautista de Arellana v Colombia21 highlights another shirking of obligation by

Barbaria. In that case Arellanas body was found shortly after she was abducted from her home.

Named State agents were found responsible and disciplinary sanctions were pronounced as

well as a judgement by the Administrative Tribunal of Cundinamarca granting compensation.

The Committee did not consider disciplinary and administrative remedies to be sufficient

within the meaning of Article 2, paragraph 3 of the Covenant22 It would follow then that no

remedy at all, as in the present case , would be a flagrant violation.

Additionally, it can be argued that Johns arrest was contrary to freedom from arbitrary

detention.The freedom from arbitrary detention encompasses the right to liberty and security

of person. The Committee points out that Article 9(1) is applicable to all deprivations of

liberty23. However Johns detention was for an excessively short period and seems

inconsequential in view of all the circumstances.

In Conclusion, Johns right to life was impugned by the State of Barbaria contrary to

Articles 2 and 6 of the ICCPR. There are no circumstances which would give rise to a bar of

admissibility, thusly Annas communication would most likely be heard by the Committee and

recommendations made, this is especially so in light of the fact that Barbaria does not intend to

supply the Committee with any information regarding the admissibility or merits of Annas

allegation. In Mathew Titiahojo and Dorothy Kakem Titiahonjo24 the commit was faced with this

very same issue among others.The Committee noted that in the absence of State party

communication25 due weight must be given to the authors allegations, to the extent that these

have been properly substantiated.

21 Communication No 563/93

22Paragraph 8.2

23General Comment 8 paragraph 1


25Paragraph 4

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