The backbone of a strong Council is a strong secretariat that can administer the full requirements of a principal organ. Currently, the Office of the High Commissioner for Human Rights (OHCHR) does not have adequate resources and operational capacities to fulfill such a role. The demands placed on the OHCHR are often not backed with the requisite funding. The demands are not coordinated systematically, because information is not adequately shared between all agencies, and the tasks given to the Secretariat place stress on an administrative system that does not have the adequate resources to cope.
In implementing its legal obligations, the OHCHR system suffers from some significant shortcomings and disadvantages. OHCHR lacks adequate resources and operational capacities. It has an insufficient presence in the world, and faces ever increasing uncoordinated and usually under-funded demands from the General Assembly, other United Nations organizations. Enforcement mechanisms are weak, further undercutting the credibility and effectiveness of the system. While the present plan of action focuses on OHCHR, the overall goal must be to strengthen all aspects of the United Nations human rights programs, the various components of which are interdependent. Credibility or resource deficiencies arising in part from the program inevitably affect the whole.
The United Nations regular budget and voluntary contributions from Member States, intergovernmental organizations, foundations and individuals are not enough to fund these human rights mechanisms. It is necessary for these mechanisms to expand in the future and current financial situation does not make it possible.18
The OHCHR leads global human rights efforts, and speaks out objectively in the face of human rights violations worldwide. They provide a forum for identifying, highlighting and developing responses to today’s human rights challenges, and act as the principal focal point of human rights research, education, public information, and advocacy activities in the United Nations system.
Mainstreaming Human Rights
Since the establishment of the United Nations in 1945, promoting and encouraging respect for human rights to all without distinction as to race, sex, language, or religion, as stipulated in the United Nations Charter, has been one of the fundamental goals of the organization. It is tasked with mainstreaming human rights within the United Nations, which means injecting human rights perspective into all United Nations programs. This is to ensure that peace and security, development, and human rights are present for all human beings.
This task is essential at a time when the United Nations is undergoing its most far-reaching reform. As it faces ever changing challenges in the new millennium, the international community unequivocally puts human rights at centre-stage in addressing various pressing issues worldwide.
The United Nation’s faces a very important role of mainstreaming human rights into the United Nations system. The UN works with Governments, civil society, national human rights institutions, other United Nations entities, and international organizations.
The UN also works with international organizations such as the International Labor Organization, the Office of the High Commissioner for Refugees, the United Nations Children’s Fund, United Nations Educational, Scientific and Cultural Organization, the International Criminal Court, specialized criminal tribunals such as the ones for former Yugoslavia and for Rwanda established by the Security Council.
The United Nation’s method of work focuses on three major dimensions: standard-setting, monitoring, and implementation on the ground. OHCHR works to offer the best expertise, and substantive and secretariat support to the different United Nations human rights bodies as they discharge their standard-setting and monitoring duties.
Implementation on the ground
The United Nations is also responsible for ensuring the implementation of international human rights standards on the ground. It accomplishes this goal by through greater country engagement and its field presences. Field offices and presences play an essential role in identifying, highlighting, and developing responses to human rights challenges, in close collaboration with governments, the United Nations system, non-governmental organizations, and members of civil society. Among these responses of monitoring human rights situations on the ground and implementing projects, such as technical training and support in the areas of administration of justice, legislative reform, human rights treaty ratification, and human rights education, designed in cooperation with member States. Based on the above facts, one must question whether the Human Rights Council is doing its job in a clear-cut and efficient manner. In addition, one must discuss if the implementation of universal human rights is working out evenly at all levels. There are a few examples which can clearly prove that the Human Rights Council is not living up to the standards it should have.
The purpose of this critical review was to focus on the origins of the Human Rights Council and to discuss if the implementation is working out evenly at all levels. Unfortunately, there is big gap between the theory and the practice.
It is generally agreed that credibility and institution building have to be the Council’s highest priorities. There must be an understanding of the time and effort that Council members need to spend on this highly complex task, in which non-Council members and NGOs are also to play a substantive role.
Two imperatives stand out for the Council’s new human rights architecture. The first is to build an effective system of Universal Periodic Review to assess human rights performance in all countries. The second is to preserve and strengthen the system of special rapporteurs and to defeat attempts by some members to weaken their independence.
Concentrating on institution building alone, however, is not the way to create a better human rights body. As was the case with the Commission, many members of the Council have shown a tendency to put politics, and sometimes regional politics, above human rights. Many Council discussions have been marked by suspicion and distrust, and the voices of some members have been stifled by regional or other group positions, leading the former Secretary General to caution the Council that ‘states that are truly determined to uphold human rights must be prepared to take action even when that means, as it sometimes will, giving offense to other States within their own region”.19
That brings us back to our starting point. In the ultimate analysis, institutions and mechanisms can only reflect a consensus on the underlying vision. That vision does not quite exist yet, partly because of the debate between universal norms and national sovereignty, partly due to continuing disagreements about the relative importance of political versus economic rights, and partly because of the manner in which one part of the world projects itself as the sole keeper of the truth about human rights. Only the progressive reversal of these factors will result in institutional structures which can measure up to the centrality of human rights in human behavior. That may be a slow process, but it will finally succeed.
Perhaps the most controversial issues in modern criminal justice relate to the relationship between capital punishment and human rights. The practice of capital punishment is hotly debated with strong opinions for, and against it, with a strong emphasis on religion as a justification for carrying out punishments.
Capital Punishment has long been a practice in humankind and is viewed by many religions as justified punishment for crimes that violated Divine Law or the laws of the state. This was the principle of the Lex Talionis “an eye for an eye, a life for a life”, or in the words of the Quran, "and We ordained therein for them: life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal”.
Also, according to the Old Testament, murder is wrong and its penalty is death. In the Book of Genesis it is stated that, “whoever sheds mans blood by man his blood shall be shed, for in the image of God, He made man”. So, we can conclude that, in accordance with the scriptures, capital punishment is based upon the belief in the sanctity of life as defined in religion, and not as a means of vengeance.
The question of who then should be authorized to carry out the punishments, and the authority under which they exercise this right, has been the subject of debate for centuries. If we refer back to the Bible, the book of Romans makes reference to God ordaining to the governments the responsibility to punish murderers and wrong-doers. The Old Testament teaches that capital punishment was instituted by God in the Jewish Legal Code, as well as, in the Mosaic Laws.
According to Mosaic Law, the punishment of death was instituted for numerous offenses. For example, in the case of a premeditated murder, in what is known in the scriptures as “lying in wait”, a person was sentenced to death if that person intentionally murdered someone. But the laws also stated that anyone practicing the occult, or dealing in sorcery or divination, or acting as a medium and sacrificing to false gods, were committing a crime punishable by death. Sexual sins such as homosexuality, rape, and incest were all punishable by death. If a male child disrespected his parents the punishment was also death. In the Torah, the book of Deuteronomy, speaks of a case where the parents were not able to control their son and his erratic behavior. He became a problem for the household and would not obey his parents. By law the family had the right to bring him before the elders of the city who acted as judges. If convicted of the offense the son was stoned to death by the elders and all the men of the city. Because of laws the father and family were not allowed to participate in the deed. The death of the son was a way to put away the evil from the family. This law was reserved only for sons only who disrespected their parents; daughters were exempt from the practice.
The violations that warranted Capital Punishment continued to grow, more and more capital offences were added. As civilization advanced, the methods of punishment grew more and more gruesome. In the 5th Century B.C. the Romans carried out death sentences by crucifixion, drowning, beating to death, burning alive, or impaling. In the 16th Century A.D., King Henry VIII of England executed more than 72,000 people using such methods as boiling a person in hot oil, burning them at the stake, hangings, beheadings, and by drawing and quartering.
Not only did the methods of killing a person increase but the number of crimes punishable by death also increased dramatically. For example, in 18th Century B.C., in Babylon, the code of King Hammurabi made 25 crimes punishable by death; by the 18th Century A.D. in Britain more than 220 crimes were punishable by death. Of course, murder was punishable by death, but also stealing, cutting down a tree, or stealing a rabbit, amongst other things, were all punishable by death.
In the West, where the colonies of America were expanding in the 15th Century, they adopted the same laws of Capital Punishment as were used in Britain, and also created some of their own. In 1612 A.D., Sir Thomas Dale, Governor of the colony of Virginia enacted what was known as the “Divine, Moral and Martial Laws”. Under these laws the death penalty could be used for even minor offenses like stealing grapes, killing chickens, or trading with native Indians.
Also, during the slave trade severe punishments, including death, were dealt out to any enslaved person who violated their master’s orders or the local laws. The slaves had no rights and according to the original Constitution the enslaved Africans were only considered three-fifths of a human being. The punishments handed down were harsh, and swift, mostly without any judicial preceding. A slave would be hanged, or have an extremity cut off, chained up, starved, and often whipped at the discretion of his owner.
The supporters of capital punishment feel the harsh punishments handed down for crimes will make the community safer, but statistics have shown throughout the years that this is not true. In fact, in some cases the perpetrators became even more reckless.
To prove capital punishment is effective we must first provide proof that the crime in any region has decreased because of it, and this in turn has made the area safer. We must also review the severity of the punishments handed down for the numerous, and varying offenses that fall under the guise of capital punishment. Are the punishments in anyway a violation of a person’s human or civil rights? Are capital punishment and its doctrines somewhat archaic? Should the power of government be mindful of its civic responsibilities to individual’s personal rights?
During the temporary suspension of capital punishment in the United States from 1972-1976, researchers gathered murder statistics across the country. In 1960, there were 56 executions in the USA and 9,140 murders. By 1964, when there were only 15 executions, the number of murders had risen to 9,250. In 1969, there were no executions and 14,590 murders, and 1975, after six more years without executions, 20,510 murders occurred rising to 23,040 in 1980 after only two executions since 1976.
In summary, between 1965 and 1980, the number of annual murders in the United States skyrocketed from 9,960 to 23,040, a 131 percent increase. The murder rate of homicides per 100,000 persons doubled from 5.1 to 10.2. So the number of murders grew as the number of executions shrank.
Justification of Divine Law
Practically all nations across the globe have constructed their governments based on one or more of a religion’s principles.
Politicians and citizens alike may be guided by faith when it comes to capital punishment, but that does not mean they will agree with all the regulations and punishments added to the already high moral standard set by our religious doctrines.
Many of our cultures and societies question some of the beliefs our religions teach. These aforementioned issues were, in the scriptures, and in many societies, capital offences punishable by death. So, with the advancement of civilization we see that was is accepted as human law may conflict with the religious beliefs of others and that is cause for conflict between, tribes, cultures, societies, and religions, leading to strife and wars.
The Islamic View
In the pre-Islamic era, tribal Arabs used to avenge the killing of any of their individuals. An example was the war famously known as the “Al-Bassous War” which lasted for forty years. The reason was to revenge the murder of one individual.
On the advent of Islam, one of its main principles was to put an end to tribal stifle, and to maintain peace among tribes.
The Quran states, "and there is a (saving of) life for you in Al-Qisas”. Thus Al-Qisas, which is retaliation or punishment becomes a reason for the life of the nation, because it deters people against killing others. The individual becomes aware that he will be killed in return if he actually kills another person. Therefore, Al-Qisas is seen as preserving life, and not as savagery or injustice. It is rather like the amputation of a limb in order to save the body.
The Islamic faith teaches moral responsibility for men and women and forbids the shedding of innocent blood. Most nations of the Islamic faith govern under the guidelines of the religion. But with states adding their own moral laws and rules for capital offences, one questions the source of their procedures for the making a criminal act a capital offence.
Though many cultures throughout the ages have used capital punishment for grave offences, ranging from theft to murder, today, only 78 countries and territories have retained the right to use the death penalty.
The first attempt by the international community at abolishing the death penalty, or simply minimizing its use, was in 1948 with the adoption of the Universal Declaration of Human Rights. It defined in detail the rights and freedoms of individuals, whereas the UN Charter had discussed human rights only in general terms, but the Universal Declaration clarified that goal in its Article 3, when it stated that "everyone has the right to life". It strongly encourages UN Member States to abolish the death penalty, but allows that the “sentence of death may be imposed only for the most serious crimes” (Article 6, Sec 2).
In 1989, the General Assembly adopted a second Optional Protocol to the Covenant, which entered into force in 1991. It was created because many States Parties believed that "the abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights” (Preamble). It allows for the use of the death penalty only during wartime and within justifiable reason (Article 2, Sec 1), and requires States Parties to submit reports to the Human Rights Committee on "measures that they have adopted to give effect to the present Protocol" (Article 3).
Persons below the age of 18 who have committed a crime, known as child offenders, are exempt from capital punishment (Article 37) under the Convention on the Rights of the Child, which entered into force within a year of its adoption in 1989. Ratified by 192 countries, the Convention is "the most universally accepted human rights instrument in history". However, two countries, Somalia and the United States, have yet to sign it.
In addition to the Universal Declaration of Human Rights, ICCPR and its Second Optional Protocol, as well as the Convention on the Rights of the Child, there are over fifty resolutions abolishing the death penalty adopted by the UN General Assembly, the Economic and Social Council, and the Commission on Human Rights.
European States are some of the strongest forces within the United Nations in the international effort to abolish the death penalty. The European Parliament has declared that it "considers capital punishment an inhuman, medieval form of punishment and unworthy of modern societies”. The European Convention, signed by 18 States and ratified by another 24, entered into force in 2003, and is the first international treaty to ban the death penalty in all cases. The abolition of the death penalty is a requirement for countries seeking membership in the European Union.
Abolishment versus Retention of Capital Punishment
The Abolition Argument
Opponents of Capital Punishment feel that the laws to punish criminals are unfairly applied to people of different beliefs, races, cultures, or social status. Therefore, they question the criminal justice system of sentencing practices and procedures. These same opponents of capital punishment feel the penalty of death is cruel and in many cases will not deter crime. Opponents feel that capital punishment is less of a deterrent and more of a finality with an irrevocable outcome. A person who has already committed a serious crime may become more violent and do something worse than the initial crime if he knew he would be punished severely for what he has already done. There is no other penalty to give him if the death penalty will be used for his initial crime so, in a sense; he has nothing to lose by committing more crimes.
Opponents of the death penalty also argue that wrongful convictions could lead to the execution of innocent people. If a person is executed for a crime he did not commit and it is later revealed that someone else was the perpetrator what happens? Is the executioner now considered a murderer for killing an innocent man? Opponents of capital punishment thus feel that the death penalty is wrong and may be used prematurely. Once a person is killed there is no reversal, you cannot bring him back to life. So, opponents feel longer term prison sentences, including life imprisonment for murders is the better remedy.
The Retention Argument
Every believer feels that there are punishments and rewards from God. The death penalty is not only a punishment; it is like sin-wash for a killer and a deterrent for others.
The experience of law enforcement officers shows that many offenders do not carry weapons because of their fear of death penalty. It is a deterrent because it affects the conscious thoughts of an individual. Most people will not commit a crime if they know they may be executed as a result: this is an outgrowth of man’s instinct for self-preservation.
United Nations Moratorium on the Death Penalty
The Moratorium on the death penalty was an Italian proposal supported by several countries and NGOs before the General Assembly of the United Nations.
It calls for general suspension (not abolition) of the death penalty throughout the world. As an action under a UN General Assembly resolution, it will not have a binding effect on UN member states. Therefore, states that currently retain the death penalty (Saudi Arabia, China, USA, Iran, etc) will not be forced by a General Assembly resolution to stop carrying out executions.
The United Nations General Assembly voted in favour of the moratorium under resolution A/RES/62/149, which proclaims a global moratorium on the death penalty, with a vast majority of 104 in favor, 54 against, and 29 abstentions.
In conclusion, Capital Punishment marks the abhorrence and revulsion against the crime of crimes. It exists not because of a desire for vengeance, but rather as the society’s reprobation to the grave crime of murder.
Capital punishment has most likely made many civil minded people conscious about the consequences of committing a violent crime or murder. The binding principle is that murderers should be put to death to preserve the sanctity of life. But, if the responsibility of carrying out the punishments of crimes is left to the power of local governments, then should all crimes result in severe punishment for the criminals or should the principles laid down by religions be the only offences punishable by the death penalty? Should a person caught stealing receive the same punishment as a killer?
In many societies capital punishment has also left open a way for people to exploit others by means of discriminatory laws. Many governments have created laws to segregate minority groups in their region. This method of controlling a region usually saw the dominant group enforcing laws making it difficult for others to gain power. One such method was to instill laws that would make even minor crimes punishable by death. Such governments were enforcing laws that were not only harsh but which also violated the rights of the people. That is why the United Nations has established a monitoring system for human rights violations, on the issue of capital punishment throughout the world.
The Universal Declaration of Human Rights initially tackled the problem of human rights throughout the world. It defined in detail the rights and freedoms of individuals. The United Nations Charter had discussed human rights only in general terms before, and had left the issues of human rights basically up to the member states themselves. But since the Declaration many nations have reviewed their policies on human rights, and some have amended their constitutional laws to better serve their people. In other words, but for the watchdog efforts of the United Nations, there would be countless violations of human rights and a far greater spread of capital punishment throughout the world.
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