Guernica 37
Guernica 37

Human Rights Litigation

The emergence of fundamental principles of international human rights law since the end of the Second World War has seen the development of a number of customary rules and the embodiment of a number of treaties, such as the Universal Declaration on Human Rights and the International Covenants on the international level, and regional human rights instruments at the European, African, Asian and Inter-American level.  These instruments have shaped our concept and understanding of human rights protection and fundamental freedoms.

International human rights law primarily imposes human rights obligations on the State. The principle of State responsibility reflects the focus of the human rights law regime on state/citizen relations and actions by non-state actors are generally, regarded as falling within the sphere of the ordinary national law. An abuse by a private individual will normally be a criminal offence rather than a human rights violation. However, human rights standards do not contain merely limitations on a State’s authority, they also impose positive obligations on States to prevent and to impose sanctions for private violations of human rights. Indeed, human rights law imposes obligations on States to protect individuals under their jurisdiction from the harmful acts of others. Thus, an act by a private individual and therefore not directly imputable to the State can generate responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or for not taking the necessary steps to provide the victims with reparation.

State responsibility may arise in terms of negative obligations requiring that a State, and all its organs and agents thereto, abstain from taking any action that violates human rights or fundamental freedom, such as unlawful kidnapping and abductions; arbitrary arrest and arbitrary or incommunicado detention; acts of torture or inhuman or degrading treatment; and extra-judicial execution by agents of the State; including police, military, intelligence operatives or other public officials, i.e. those acts that form the constituent elements of enforced disappearance.

State responsibility may also arise in terms of positive obligations requiring that the State take positive action to protect human rights in order to prevent violations. This obligation requires that the State and its public authorities take the measures necessary to prevent others from violating the rights of individuals within its territory, i.e. the acts of non- state actors, such as a failure to protect individuals within its territory from a foreseeable violation by non-state state actors; failure to prevent specific acts of discrimination; and failure to provide reparations for human rights violations. Positive obligations arise in respect of the acts of private individuals against other private individuals. In this regard, the State is required to investigate, prosecute and punish acts of individuals or members of one group against individuals or members of another group that constitute crimes under national or international law.

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