Human Rights Legislation.
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Human Rights Legislation. The Universal Declaration of Human Rights (UDHR) was adopted on the 10th of December 1948. The declaration was not intended to impose any legal obligation on the state; rather it was proclaimed as, "a common standard of achievement for all peoples and all nations". Although it is not binding on any state, the declaration strengthens the states obligation under the UN Charter1. The fundamental principle of the UDHR, is that it is universal both in scope and in applicability. These rights are assigned, not because their government has taken up membership in some international peace-loving organisation, but rather these are seen as fundamental rights protecting the individual, simply by the virtue of being a Human. The essence of 'Human Rights' is so they impose an obligation on individuals or on states to give assistance to every other human being to attain these fundamental rights. In context to the question posed, Human Rights provisions are interesting because if it is found that the prisoners held in Guantanamo Bay are not entitled to Prisoner of War (POW) status, (therefore not protected under the Third Geneva Convention), then their detention and treatment will have to be in line with International Human Rights provisions.
Article 9.3: Anyone arrested or detained on a criminal charge shall be brought promptly before a judge, or other office authorised by law to exercise judicial power, and shall be entitled to trial within a reasonable time. Article 9.4: Anyone who is deprived of his liberty by arrest or detention shall be entitled to proceedings in court, in order that court may decide without delay on the lawfulness of his detention, and order his release if the detention is not lawful. The essence of Article 9 authorises the state to grant POW status, and only a competent tribunal may adjudicate any doubtful questions about their status, such an important decision about their legal status and judicial safeguards should be determined by an impartial and independent court. The decision about their future should not be left to one person. International Humanitarian Law The League of the Red Cross Societies was founded in the 1919. Its first matters of concern were the conditions of the sick and wounded in the field of war and the treatment, and exchange of POWs. Nowadays, the valuable work of the International Committee of the Red Cross (ICRC) does not only benefit the members of the armed forces, but has also been extended to concern whole sectors of the population where people have been threatened by the methods of warfare4.
This means that National Liberation Movements can now be perceived as having, properly constituted authority7. It seems that the underlying principle of the Geneva Conventions is that decent and humane treatment is an immediate right given to members of the armed forces, captured by the enemy in an armed conflict8. What is debatable concerning the detainees held a Guantanamo Bay is not whether they are entitled to protection under International Law, but what Regulations the detaining power has set aside to determine their arrest and detention lawful. The focal point of discussion is the nature of the conflict; the status of the prisoners and what remedies (safeguards) are available to them. 1 Robertson A H & Merrills R eds. Human Rights in the World; Introduction to the Study of International law (1996) Manchester: Manchester University Press p.28-29. 2 Ibid p.202-203 3 Ibid p.204. 4 International Committee of the Red Cross- History of Organization www.nobel.se/peace/laureates/1944/red-cross-history.html 5 Rodley N S. The Treatment of Prisoners Under International Law 2ed. (1999) Oxford: Clarendon Press 6 Rosas A. The Legal Status of Prisoners of War; A Study in International Humanitarian Law Applicable in Armed Conflict (1976) Helsinki: Suomalainen Tiedeakatemia 7 Hare J E & Joynt C B. Ethics and International Affairs (1982) London: MacMillan Press 8 Dapper G. The Red Cross Conventions (1979) London: Stevens & Sons Ltd
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