The meaning of "gross violation" of human rights: a focus on international tribunals' decisions over the DRC conflicts.

• Author: Liwanga, Roger-Claude
• Position: Democratic Republic of the Congo

1. INTRODUCTION

   In December 2005, the International Court of Justice ("ICJ") delivered a judgment on the case--between the Democratic Republic of the Congo ("DRC") and Uganda--concerning Armed Activities on the Territory of the Congo, declaring that the killings, tortures, and destruction of properties of the DRC civilian population by Uganda and its army constituted "massive human rights violations." (1) Two years earlier (in March 2003), the African Commission on Human and Peoples' Rights ("African Commission") had also issued a decision in response to a call to adjudicate on the same situation of armed conflicts in the DRC (DRC v. Burundi, Rwanda and Uganda case) where it described the actions of the respondent states as "flagrant violations" of human rights. (2) Yet in their respective rulings, the two judicial bodies failed to define what specifically constituted a "massive violation" or "flagrant violation" of human rights. Additionally, both the ICJ and African Commission did not clearly establish the criteria that led them to conclude the killings and tortures against the DRC population were effectively "massive/flagrant violations" rather than "regular violations" of human rights. This silence has raised some questions as to: What makes some acts of killing to be perceived as "massive" or "flagrant" violations of human rights while other acts of killing are just "regular violations" of individuals' right to life? What are the parallels between the terms "flagrant," "massive," "gross," "systematic," and "serious" violations of human rights?

   The paper explores the meaning of "gross violation" of human rights and examines the criteria making a given violation to be ascertained as a "gross violation" of human rights. This paper posits that the terms "gross," "flagrant," "massive," "systematic," or "serious" violations of human rights are often interchangeably or cumulatively used by both international legal instruments and quasi-judicial bodies in order to refer to a violation of the same gravity. (3) The paper also suggests that, even though there is no unanimous definition of the concept "gross violations" of human rights, the scope of coverage of this concept concerns the violations of two categories of rights, namely civil and political rights and socio-economic rights. The paper concludes that several elements need to be taken into account while assessing the seriousness of a violation, including: the type of the violated rights and the character of the violation, the quantity of victims, the repeated occurrence of the violation and its planning, and the failure of the government to take appropriate measures relating to the violation in question. (4)

   This paper is divided into two main parts. Section I will examine the different definitions of "gross violation" of human rights as suggested by international legal documents and scholars. Section II will analyze the criteria of classification of "gross violation" of human rights in light of recent international and regional jurisprudence.

2. DEFINING THE CONCEPT OF "GROSS VIOLATION" OF HUMAN RIGHTS

   The term "gross violation" of human rights draws its origin from different international and regional legal instruments within different legal systems. International and regional legal instruments and judicial bodies are inconsistent in their language when referring to the term "gross violation" of human rights. (5) These international legal instruments and judicial bodies have been using interchangeably and cumulatively the terms "gross," "grave," "flagrant," "massive," "systematic," and "serious." For instance, the 1967 U.N. Resolution 1235 of the Economic and Social Council ("ECOSOC") compelled the U.N. Commission "to examine information relevant to gross violations of human rights ... as exemplified by the policy of apartheid." (6) The 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment cumulatively speaks of "gross, flagrant or mass" violations of human rights in connection with torture, (7) the 1993 Vienna Declaration and Program of Action refers to "gross and systematic violations" of human rights; (8) and the 2005 U.N. Basic Principles and Guidelines uses the term "gross" and "serious violations" to qualify the gravity of the violations. (9) Likewise, international and regional judicial bodies have also employed different terminologies when talking about certain acts violating international laws: the ICJ talks of "massive human rights violations" in the case concerning Armed Activities on the Territory of the Congo (DRC v. Uganda). (10) The African Commission and the African Court on Human and Peoples' Rights ("ACtHPR") utilize interchangeably the terms "gross," "grave," "flagrant," "serious," or "massive;" (11) and the European Court of Human Rights ("ECtHR") and the Inter-American Court of Human Rights ("IACtHR") refer to "serious violation" to depict the gravity of some acts. (12)

   It should be noted that, while using interchangeably and cumulatively the concepts of "gross," "massive" or "serious," both the international instruments and judicial bodies have always failed to distinguish between the content of each concept. (13) This may lead one to conclude that, under international law, the epithets "gross," "grave" "flagrant" or "serious" have the same meaning in terms of qualifying the gravity of certain human rights violations. However, for the purpose of this paper, the term "gross violation of human rights" will be preferably used for the sake of uniformity of terminology. But, beyond the issue relating to the use of terminology, the most important problem is to understand the meaning of the concept itself. What does "gross violation" of human rights mean?

   There is no universally accepted definition of the term "gross violation" of human rights, nor is there a formally determined content of the concept itself. (14) The existing definitions of "gross violation" of human rights are provided by quasi-legal instruments that lack a binding effect (such as the declarations and guidelines of the U.N. or EU's commissions and agencies), rather than treaties with binding effects. For instance, Paragraph 30 of the 1993 U.N. Vienna Declaration and Program of Action provides an enumeration of acts that should constitute "gross violation" of human rights by stating that:

   Gross and systematic violations ... include, as well as torture and cruel, inhuman and degrading treatment or punishment, summary and arbitrary executions, disappearances, arbitrary detentions, all forms of racism, racial discrimination and apartheid, foreign occupation and alien domination, xenophobia, poverty, hunger and other denials of economic, social and cultural rights, religious intolerance, terrorism, discrimination against women and lack of the rule of law. (15) Likewise, the Council of Europe's Guidelines on Eradicating Impunity for Serious Human Rights Violations catalogued acts comprising "gross violation" of human rights. (16) Scholars such as Stanislav Chemichenko and Theo Van Boven have also proposed some definitions of "gross violation" of human rights. In his Working Paper submitted to the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Chemichenko noted that gross and large-scale human rights violations ... [should include] murder, including arbitrary execution; torture; genocide; apartheid; discrimination on racial, national, ethnic, linguistic, or religious grounds; establishing or maintaining over persons the status of slavery servitude, or forced labour; enforced or involuntary disappearances; arbitrary and prolonged detention; deportation or forcible transfer of population." (17)

   Chernichenko's definition of "gross violation" of human rights is relatively similar to the one suggested by Van Bovcn. (18)

   Two observations can be made from all of the above definitions. First, there is no exhaustive list of violations that may constitute "gross violation" of human rights; meaning that the term "gross violation" of human rights includes panoply of violations. Second, the scope of coverage of "gross violations" of human rights concerns the violations of both categories of rights: (1) civil and political rights, and (2) social, economic, and cultural rights. But, there is a limitation within these definitions to the extent that they seem to merely offer an enumeration of violations that may constitute "gross violations" rather than supply the criteria to assess the seriousness of the violations committed. (19) In other words, those definitions are descriptive rather than prescriptive of criteria necessary to evaluate the gravity of the enumerated violation(s). (20) In this regard, the U.N. Human Rights Due Policy on U.N. Support to Non-U.N. Security Forces has recently provided a "complex" definition of "gross violation" of human rights, which unifies different legal regimes, such as international law, international humanitarian law, and international criminal law. (21) But that definition is unclear as to what the terms "significant degree of frequency" or "significant scale" would actually mean in practice. (22) In light of the difficulty of defining the concept "gross violation" of human rights, a more comprehensive definition should not only enumerate the wrongful acts comprising "gross violations" of human rights, but also reflects some standard so as to evaluate how a given wrongful act can be qualified as a "gross violation." Accordingly, a more holistic definition can be formulated as follows:

   "Gross violation" of human rights comprises at least one the following acts, when committed repetitively or non-repetitively against any individual as part of a planned action by State actor(s) or non-state actor(s), or committed without effective judicial measure(s) of the State government to investigate and prosecute the perpetrator(s):

   * Torture and cruel, inhuman, and degrading...