In the May EuroISME Blog contribution, former European Court of Human Rights judge Hanne Sophie Greve takes the occasion of the 70th anniversary of the end of World War II to ask what we have learned from history and whether we meet the high aims set with the establishment of the UN after the war. She warns that it is not sufficient to legally guarantee the Dignity and the Worth of the Human Being, but that they must also be defended.

Dr. juris, judge Hanne Sophie Greve is a former judge at the European Court of Human Rights. She was a Commissioner, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to examine and analyse information with a view to providing its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia. She is the author of An Alleged Genocide Including Allegations of Massive Violations of the Elementary Dictates of Humanity — Opština Prijedor, a District in North Western Bosnia, Annex V to the Final Report of the Commission, UN Doc. S/1994.674 (the annexes constitute an integrated part of the Final Report). She is a member of the International Commission against the Death Penalty.

We are looking forward to your comments and reactions (below the post at the bottom of this page).


 

 

The Family of Human Beings – One in Worth and Dignity

Celebrating the 70th anniversary of the Nazi defeat in the Second World War, there are strong reasons to rejoice, but also to reflect.  I take this opportunity to contemplate the single most revolutionary outcome of the Second World War for the ensuing world order.

The Preamble to the Charter of the United Nations (UN) explicitly proclaims the determination of the peoples of the UN,

  • to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
  • to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,

Already prior to the Second World War, there were serious efforts to reduce the suffering caused by war and attempts to remove this scourge from humankind. The Preamble to the 1899 Hague Convention (II) with respect to the Laws and Customs of War on Land states,

‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.’

In the Advisory Opinion of the International Court of Justice Legality of the threat or use of nuclear weapons, of 8 July 1996, the Court determined that the Martens Clause is a customary rule of normative status that contains norms regulating State conduct. As formulated by the International Law Commission, the Martens Clause provides that ʻcivilians and combatants [as a minimum] remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’.

Among the most gruesome of crimes is genocide. It more often than not, occurs in war time. Today genocide is a specific crime punishable by law. The elements of the crime may also be viewed as a plethora of individual crimes that together constitute massive affronts to humankind and humanity. Genocide is a most awful and lamentable combination of actual acts as now listed as the elements of the punishable crime of genocide.

When Rafael Lemkin advocated legislation to prevent and punish genocide, he explicitly said that what he had in mind, was the kind of absolute brutality that had befallen the Armenian people in 1915. During the First World War, on 24 May 1915, the Triple Entente warned the Ottoman Empire that ‘In view of these new crimes of Turkey [the genocide against its Armenian citizens] against humanity and civilization, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres.’

Aleppo Governor Mehmet Celal Bey stated that the goal of the Ottoman government was ‘to annihilate’ the Armenians. Abdülmecid II, the last Caliph of Islam of the Ottoman Dynast, said of the policy: ‘I refer to those awful massacres. They are the greatest stain that has ever disgraced our nation and race.’ Damad Ferid Pasha, the Grand Vizier of the Ottoman Empire, when speaking about the Armenians in the 26 June 1919 issue of the New York Times said: ‘the whole civilised world was shocked by the recital of the crimes alleged to have been committed by the Turks. It is far from my thought to cast a veil over these misdeeds, which are such as to make the conscience of mankind shudder with horror for ever; still less will I endeavour to minimise the degree of guilt of the actors in the great drama.’

The crime of genocide was committed again during the Second World War by Nazi Germany first and foremost against the Jewish people – the Holocaust or the Shoah. The extremes of these acts are recognized by all civilized nations today, and adequately referred to as genocide. This despite the fact, that not even the Shoah could be punished as such by the International Military Tribunal at Nuremberg (IMT) after the war. The criminalization of genocide as one compound crime came in 1948 with the UN Convention on the Prevention and Punishment of the Crime of Genocide.

Article 2 of the Convention defines the crime of genocide as meaning acts – such as, but not limited to, killing members of a group – committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The genocide against the Armenians and the one against the Jews as those in Cambodia, Bosnia and Herzegovina, and Rwanda are all characterized by the target group being dehumanized and its members being deprived of their human dignity and worth.

In the Preamble to the Charter of the UN the peoples reaffirm faith ‘in the dignity and worth of the human person’ and the equal and inalienable rights of all members of the human family. These are the core values of the UN. Article 1 of the UDHR combines dignity and worth as ‘dignity’; it reads: ‘All human beings are born free and equal in dignity and rights.’ Some will address worth and dignity separately, saying that each person has an unalienable worth, which must be respected by all; but that it is by doing good that the human being gains dignity. That is to ascertain that worth is given, while dignity is acquired. In this vein one may say that human rights are based on the worth of the person and should have as their goal the realization of the person’s human dignity. Or, using the common denominator, one may say that all human rights derive from the inherent dignity of the human being.

The human person has rights and duties originating directly and simultaneously from her or his human nature – rights and duties which are universal, inviolable and inalienable. Human rights make up an intertwined totality composed of everyone’s many different rights at any one time. The right to uphold life is of a more fundamental character than other rights. All other rights are but to secure the quality of the life that is being upheld.

As human beings we must be perennially concerned for the integral development of every human being and the whole human being. Famine; poverty; subhuman living conditions; lack of education; disgraceful working conditions, crime; and the likes are affronts to our human dignity at large. It is for all of us to help make fruitful the talents placed in each person. No one must be marginalized. Peace is the tranquility of a just order.

As every State member of the UN have subscribed to the UN Charter, these States have consented to being bound by the Organizationʼs regime and to be governed by its basic norms. The equal dignity and worth of every member of the human family is therefore consensual law. In contradistinction to positive law, natural law is universal and binding all States and all peoples. Natural law is based on the idea of the prevalence of right and justice. The IMT judgment relied largely on natural law and confirmed the validity of natural law as a basis for international law. Today it may be ascertained that ʻthe dignity and worth of the human personʼ – meaning every single member of the human family in that very capacity – is both positive consensual law and natural law, it is pivotal to and the core of every civilization. It is moreover, a usage established between civilized nations in humanitarian law and the law of war.

In short, the Dignity and the Worth of the Human Being cannot and shall never be subject to a ranking system whereby some groups are given a lesser share than other members of the human family. New examples of such discrimination – against for instance (but not limited to) women or people with a different religious belief or non believers – cannot be tolerated as expressions of cultural diversity. Inequality in terms of the dignity and worth that belongs to every human being represents affronts to justice, social order, security and peace in the world community; and it is a negation of the outcome of the Nazi defeat!