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LAW 3720

International Human Rights

Assignment

Student Number: 408002464

10/25/2010
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Jhe 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.1 Jhe 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.2 Jhe 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

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alleged victim. Jhe 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 -
 


.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. Jhe 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 Ǯsufficient linkǯ.
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. Jhe Special Rapporteur is a special procedure and no consideration
of the merits of the case would be involved; the process is non-judicial. Jhis principle is
illustrated in the case of - 
 
 6 where the state party contended that Mrs
Adhinǯs 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, 
  , to a visit by "the Special Rapporteur on summary or arbitrary
executions of the United Nations Commission on Human Rights, Mr. Amos Wako." Jhe 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
Jhe issue of exhausting all local remedies was also considered in - 
. Jhe
authors of the communication felt that there was no possibility of a fair trial locally8 and the

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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 Annaǯs 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.
Jhe Covenant encompasses an extensive array of rights, spanning from the right to life
to the freedom of opinion. Jhe 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 arbitrary
deprivation of Johnǯs life as explicitly required in Article 6(1). Deprivation of life by the state is
a topic of the highest concern. In the case of 
  


  13 a police raid
resulted in the murder of seven suspected kidnappers. Although the killings were deemed
Ǯlawfulǯ 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

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deprivation of life was intentional. Jhere was also no evidence that the actions of the police
were necessary.

Jhe 
case illustrates the precept that Ǯarbitraryǯ is a broader concept than
Ǯunlawfulǯ i.e. a killing may be authorized under municipal law and still be in breach of article 6.
Jhe 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 Johnǯs 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.

Jhe 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 to
punish 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.17 Jhe Committeeǯs remedy in - 
 is helpful in
illustrating this point. Jhe Committee urged the State party to take effective steps to investigate
the killings and to bring justice any responsible persons.18 In 


   19,

Joaquin Herrera was arrested on suspicion of being a Ǯguerrilleroǯ and his life threatened if he
did not confess. Rubioǯs parents were found dead shortly after he was detained. Jhe 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 Stateǯs obligations.20 Jhe
  case suggests that a simple investigation is not sufficient, it must also be effective. Jhere
is no indication that Johnǯs murder was ever investigated much less sufficiently and even when

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Anna supplied overwhelming evidence identifying some of the perpetrators her case was still
dismissed. -  
    21 highlights another shirking of obligation by
Barbaria. In that case Arellanaǯs 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 Jribunal of Cundinamarca granting compensation.
Jhe 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 Johnǯs arrest was contrary to freedom from arbitrary
detention. Jhe freedom from arbitrary detention encompasses the right to liberty and security
of person. Jhe Committee points out that Article 9(1) is applicable to all deprivations of
liberty23. However Johnǯs detention was for an excessively short period and seems
inconsequential in view of all the circumstances.

In Conclusion, Johnǯs right to life was impugned by the State of Barbaria contrary to
Articles 2 and 6 of the ICCPR. Jhere are no circumstances which would give rise to a bar of
admissibility, thusly Annaǯs 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 Annaǯs
allegation. In    

  24 the commit was faced with this
very same issue among others. Jhe Committee noted that in the absence of State party
communication25 Dzdue weight must be given to the authorǯs allegations, to the extent that these
have been properly substantiated.dz

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