HUMAN RIGHTS

VIOLATIONS
Human rights advocates agree that, sixty years after its issue, the
Universal Declaration of Human Rights is still more a dream than
reality. Violations exist in every part of the world. For example,
Amnesty International’s 2009 World Report and other sources
show that individuals are:

 Tortured or abused in at least 81 countries

 Face unfair trials in at least 54 countries
 Restricted in their freedom of expression in at least 77 countries

Not only that, but women and children in particular are

marginalized in numerous ways, the press is not free in many
countries, and dissenters are silenced, too often permanently.
While some gains have been made over the course of the last six
decades, human rights violations still plague the world today.
To help inform you of the true situation throughout the world, this
section provides examples of violations of six Articles of the
Universal Declaration of Human Rights (UDHR):
ARTICLE 3 — THE RIGHT TO LIVE FREE
“Everyone has the right to life, liberty and security of person.”
An estimated 6,500 people were killed in 2007 in armed conflict in
Afghanistan—nearly half being noncombatant civilian deaths at
the hands of insurgents. Hundreds of civilians were also killed in
suicide attacks by armed groups.
In Brazil in 2007, according to official figures, police killed at least
1,260 individuals—the highest total to date. All incidents were
officially labeled “acts of resistance” and received little or no
investigation.
In Uganda, 1,500 people die each week in the internally displaced
person camps. According to the World Health Organization,
500,000 have died in these camps.
Vietnamese authorities forced at least 75,000 drug addicts and
prostitutes into 71 overpopulated “rehab” camps, labeling the
detainees at “high risk” of contracting HIV/AIDS but providing no
treatment.
ARTICLE 4 — NO SLAVERY
“No one shall be held in slavery or servitude; slavery and the
slave trade shall be prohibited in all their forms.”
In northern Uganda, the LRA (Lord’s Resistance Army) guerrillas
have kidnapped 20,000 children over the past twenty years and
forced them into service as soldiers or sexual slaves for the army.
In Guinea-Bissau, children as young as five are trafficked out of
the country to work in cotton fields in southern Senegal or as
beggars in the capital city. In Ghana, children five to fourteen are
tricked with false promises of education and future into
dangerous, unpaid jobs in the fishing industry.
In Asia, Japan is the major destination country for trafficked
women, especially women coming from the Philippines and
Thailand. UNICEF estimates 60,000 child prostitutes in the
Philippines.
The US State Department estimates 600,000 to 820,000 men,
women and children are trafficked across international borders
each year, half of whom are minors, including record numbers of
women and girls fleeing from Iraq. In nearly all countries,
including Canada, the US and the UK, deportation or harassment
are the usual governmental responses, with no assistance
services for the victims.
In the Dominican Republic, the operations of a trafficking ring led
to the death by asphyxiation of 25 Haitian migrant workers. In
2007, two civilians and two military officers received lenient prison
sentences for their part in the operation.
In Somalia in 2007, more than 1,400 displaced Somalis and
Ethiopian nationals died at sea in trafficking operations.
ARTICLE 5 — NO TORTURE
“No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”
In 2008, US authorities continued to hold 270 prisoners in
Guantánamo Bay, Cuba, without charge or trial, subjecting them
to “water-boarding,” torture that simulates drowning. Former-
President George W. Bush authorized the CIA to continue secret
detention and interrogation, despite its violation of international
law.
In Darfur, violence, atrocities and abduction are rampant and
outside aid all but cut off. Women in particular are the victims of
unrestrained assault, with more than 200 rapes in the vicinity of a
displaced persons camp in one five-week period, with no effort by
authorities to punish the perpetrators.
In the Democratic Republic of the Congo, acts of torture and ill
treatment are routinely committed by government security
services and armed groups, including sustained beatings,
stabbings and rapes of those in custody. Detainees are held
incommunicado, sometimes in secret detention sites. In 2007, the
Republican Guard (presidential guard) and Special Services
police division in Kinshasa arbitrarily detained and tortured
numerous individuals labeled as critics of the government.

Article 5

Rape is one of the most predominant forms of violence being

used in Darfur towards women. It does not only affect female
individuals, but also has devastating effects on societies and
communities, as females are suddenly shunned and the
community loses its reputation. It is a violence which is being set
forth by the Sudanese government as well as the Janjaweed
militia. However, the main aggressor is the Government, as the
Janjaweed is being supported by the Sudanese government and
the military. “In Darfur, says the NGO Human Rights watch,
women and girls live under constant threat of rape by Sudanese
government soldiers, members of government-backed Janjaweed
militia…" Even though the violence is ultimately being practiced
by the militia, it is primarily imposed by the government due to it
supporting the militia. To further the analysis of the violations
statistics on rape would be to the benefit of this essay. However,
as the Sudanese government has been withholding realistic
numbers, a clear indication of women being raped in Darfur is not
present. In the context of the Universal Declaration rape violates a
number of basic human rights listed in the charter, specifically
now that the UN has declared rape as worthy of being considered
a “weapon of war”.
A resolutions passed by the UN on the 19th of June 2008 states
“…women and girls are particularly targeted by the use of sexual
violence, included as a tactic of war to humiliate, dominate, instill
fear in, disperse and/or forcibly relocate civilian members of a
community or ethnic group.” From such a statement there are
clear implications that rape violates Articles 1 and 5 of the
Universal Declaration. Article 1 implies that all humans should be
treated equally and with dignity, however as rape is used to
humiliate a sex as well as dominate individuals there is no
evidence of dignified treatment. Being born in equal dignity
implies that every human is treated with such dignity. Yet rape is
not dignified treatment and hence the basic right of a human is
violated. To counter such an argument one can assume that to be
able to obtain human rights, one has to be acknowledged as a
human. This only occurs when one is treated as such, in other
words with dignity and equality. Under this aspect, women who
have been raped, or not treated with dignity, are not recognized
as human and therefore would not be able to obtain their rights.
Rape also violates Article 5 which is included in those setting forth
civil and political rights. Rape does classify as cruel and
degrading treatment, and referring back to the UN statement,
humiliation is a method used to degrade. Inhuman treatment
would mean that one is not treated with dignity and equality,
which is a standard that all humans should enjoy. Hence,
inhuman treatment is a violation as every human has human
rights. A different aspect to look at is the idea of governments
being enablers of rights. This means that the State primarily has
to accept a right so that the people are able to enjoy the right.
Therefore, if the state has not recognized aspects of the Universal
Declaration, then there practically are no human rights violations
in such a context. From such a perspective the government has
not violated any human rights and the rebels are the main source
instigating violence towards the citizens of Darfur.

Article 6 of the Declaration says that "everyone has the right to

recognition everywhere
as a person before the law."

None of the drafts submitted to the Commission contained

anything like this right. And while many of the constitutions in
John Humphrey's survey contained specific legal and civil rights,
only two contained the concept of a legal personality as such.

Belgium's constitution stated that "total deprivation of civil rights

(mort civile) [civil death] is abolished and shall not be re-
established." And the Greek constitution stated that "civil death is
abolished".
It is an unusual right and repeated questions were raised about its
usefulness in the Declaration. Each time the drafters came back
to the Nazi violations of it and decided that the right was too basic
not to be included.

John Humphrey's first draft of the article contained the phrase

"legal personality," which means, Cassin explained, the ability "to
be a bearer of rights, obligations and responsibilities." Because
Valdimir Koretsky, the USSR delegate, thought the idea of
a legal personality "introduced a complicated juridical concept"
and Eleanor Roosevelt
thought it "meant little to laymen," the First Session of the Drafting
Committee changed
it to what we have, which is "person before the law."

To the worry that this article was too technical, Cassin responded
that the article was "indispensable because persons existed who
had no legal personality".

When Roosevelt said that the "conception of juridical personality

did not exist in the United States" and that she "was not quite
certain of the meaning of this article," Cassin explained that this
provision was directed "against modern forms of slavery".

He felt that "there would have been no need to reaffirm that a

human being could not constitute the property of another human
being, had not certain heads of state such as Hitler, sought in the
last ten years to revive the ancient idea that an individual
considered as a slave had no right to marry, to be a creditor or to
own property".

In the Third Session of the Commission both the United

Kingdom/India and the Chinese delegations proposed the deletion
of what is now Article 6. "Speaking as a representative of the
USA, the Chairman stated that her delegation would vote against
Article 12 [6] because its wording was ambiguous" and "the
provisions of Article 3 [2 and 7] were sufficient."

Wilson of the United Kingdom also "announced that his

delegation would vote against the retention of article 12 [6]"
because "such significance as the proposed text of the article had
in Anglo-Saxon law was already covered by provisions of Article 3
[2 and 7]".

Both the French and Soviet delegations defended the article's

retention.

Cassin repeated the points he had made previously.

Pavlov added the observation that "apart from attempts against

whole groups, such as those against the Jews in Germany,
account must be taken of the fact that some civil legislation still
contained restrictive provisions regarding juridical personality of
individuals.

Thus, in certain cases a wife had no juridical personality

independent from that of her husband".
Roberto Fontaina, a delegate from Uruguay, thought "the article
certainly should be retained, the difficulty was how to express the
idea in a way that would be clear to the English speaking
countries".

When Roosevelt called for a vote on the matter, the article was
retained by 12 votes with 4 abstentions in the form of the following
French sponsored text: "Everyone has the right everywhere in the
world to be recognized as a legal person".

In the Third Committee H. H. Carter, a Canadian delegate, argued

"it was important to keep in mind . . . the possibility that certain
persons might be deprived of their juridical personality by an
arbitrary act of their government.

Nazi Germany offered a recent example". Cassin added that the

Committee's "duty was to proclaim to the whole world that there
was not a single human being who could not possess both rights
and obligations. . . . The right to enter into contract had not yet
been embodied in the Declaration," he said, "but the phrase
'person before the law' covered that fundamental right too".

Miiller records a case in which a German court declared a Jew

legally dead, and "of complete legal incompetence" and "lack of
rights" simply because he was a Jew.

Just as death makes someone incapable of carrying on

physically, so, in the Third Reich, being a Jew made this man
incapable of "carrying out his duties" as the director of a film. His
contract with the film production company was canceled because
the man's Jewishness made him legally dead.

See: A Great Adventure, John Thomas

PetersHumphrey; E/CN.4/AC.1/W.1 and E/CN.4/AC.l/W.2/Rev.2.
The second of these two was done by all three delegates (Malik,
Cassin, Wilson) and was a rewrite of Humphrey's articles 2, 25, 6,
3, and 4, made into new articles 4, 5, and 6. ; Rene Cassin, La
Declaration universelle des droits de I'homme de 1948 (Paris:
Institut de France, Academic des Sciences Morales et Politiques,
1958). This essay was reprinted in Rene Cassin, La Pensee et
I'action (Paris: Lalou, 1972), UDHR, Johannes Morsink, 1999.

Any system of justice that is shot through with racism, as Hitler's

was, is bound to be discriminatory and hence unequal.

After the Nazis took power a conference for all German law
professors was held.

Miiller tells that "Heinrich Stoll, a professor of civil law at the

University of Tubingen, reported that it was the consensus of the
assembled jurists that 'the concept of race is closely linked to the
concept of law'".

This is the exact opposite of all civilized legal systems since the
time of the Stoics.
Article 7 of the Declaration talks about equality before the law as
a basic right and for most of the drafting process the article was
attached to what now is the first paragraph of Article 2. This made
sense, for nondiscrimination and equality are two sides of the
same coin.

Article 7, one of the most poorly written in the entire Declaration,

seems redundant and overlaps in its second sentence with Article
2.

According to Article 7: "All are equal before the law and are
entitled without any discrimination to equal protection of the law.
All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such
discrimination."

The period at the end of the first sentence is a crucial one, for it
divides the first sentence - which does not contain a reference to
the Declaration-from the second sentence, which
does.

That means the article prohibits two kinds of discrimination:

"discrimination of any kind," and discrimination that violates the
rights listed in the Universal Declaration.

Since Article 2 of the Declaration already prohibits this second

kind of discrimination, the real contribution of Article 7 is made in
its first sentence and in the final clause of the second sentence,
which prohibits "incitement to such discrimination."
During much of their drafting history Articles 2 and 7 were
intertwined in one article.

These two strands were separated out with much difficulty and left
us with a strong and lean Article 2 and with a weaker Article 7.

The main issue that emerged during this untangling process was
the need to differentiate between the qualified prohibition of
Article 2 and the unqualified prohibition to be added in Article 7.

Karim Azkoul, the Lebanese delegate, saw the issue clearly when
he supported a Chilean amendment on the ground that "certain
rights might not be mentioned expressly in the Declaration, but
discrimination with respect to such rights should not be
permitted."

Salvador Lopez, a delegate from the Philippines, also saw the

problem.

Referring to legislation passed in South Africa, he pointed out that

"certain rights, such as the right to travel on railroads without
discrimination, were not [explicitly] mentioned in the Declaration
but should certainly be covered".

By not linking the prohibition of discrimination to just the rights

listed in the Declaration, the first sentence of Article 7 covers that
kind of worry.
The idea of equality before the law is a standard feature of
national constitutions.

For instance, in 1948 the constitution of Uruguay stated that "all

persons are equal before the law," the one of Syria that "all
Syrians shall be equal in the eyes of the law" and the one of
Turkey that "all Turks are equal before the law." And so on. But
the idea can travel in two directions.

When it is applied to the people who are less or least well off it is
often-though not necessarily and not always-referred with the
concept of nondiscrimination. Examples of 1948
nondiscrimination clauses are the Chinese constitution's
statement that "all citizens of the Republic of China, irrespective
of sex, religion, race, class or party affiliation, shall be equal
before the law" and the Turkish one that "the people of Turkey,
regardless of religion and race, are Turks as regards citizenship."

When the idea is applied to the elite of a society and to those who
pull the levers of power it is often - though not necessarily and not
always-referred to with the concept of "equal accountability."

Probably because he was aiming at the racist aspect of the Nazi

legal system, John P. Humphrey stressed the non-discrimination
side of equality in his first draft: "No one shall suffer any
discrimination whatsoever on account of race, sex, language or
political creed.
There shall be full equality before the law in the enjoyment of the
rights enunciated in this Bill of Rights".

Equality before the law was for Humphrey primarily a matter of

being protected against "any discrimination whatsoever."

He even added a short list of nondiscrimination items (race, sex,

language, and political opinion), which he attached to the
prohibition.

This is exactly the kind of absolute prohibition of discrimination

one would have expected in an article about equality before the
law that was written in response to the Nazi horrors.

The final Article 7 is not nearly as clear. But by stressing

protection against discrimination in both his sentences, Humphrey
had ignored the accountability component of equality before the
law.

This was not for a lack of good examples, for his own survey
contained several such.

Article 78 of the Icelandic constitution stated that "no privilege

attached to nobility, title or rank may be established by law." In
Denmark's constitution, "Every prerogative attaching in law to
persons of the nobility of title and rank [was] abolished," and the
Honduran constitution did "not recognize exemptions or personal
privileges."
In his rewrites Cassin caught Humphrey's oversight. He removed
the idea of equality before the law from Humphrey's second
sentence, molding it into a new article that dealt only with
accountability: "All are equal before the law and entitled to equal
protection of the law. Public authorities and judges, as well as
individuals are subject to the rule of law."

These Cassin changes caused there to be two articles, one on

nondiscrimination, which is the forerunner of Article 2, and the
one just cited on accountability, which is the forerunner of Article
7.

The Working Group of the Second Session replaced Cassin's

reference to "public authorities and judges" with the phrase
"regardless of office or status" and merged the two articles again
into one long article.

The Third Session of the Commission adopted a Lebanese

amendment to delete the phrase "regardless of office or status."
The majority, which included Cassin himself, felt that "the word
'all' was sufficiently comprehensive."

The stripped-down sentence "All are equal before the law" was
adopted by 12 votes to none, with 3 abstentions. And so it
happened that the idea of equal accountability before the law of
the land, which is an integral part of the ancient idea of the rule of
law, went from a total absence in the first draft to a full-fledged
presence in the Cassin rewrites and from there to a hidden status
in the first occurrence of the word "all" in what is now

Article 8 article says that "everyone has the right to an effective

remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law."

As if to make up for the very complicated drafting history of Article

7, the origin of this article is remarkably simple. When Article 7
arrived at the Third Committee, the Mexican and Cuban
delegations proposed similar amendments to the effect that
everyone had the right to "an effective judicial remedy" (Mexico)
or "a simple, brief procedure for obtaining the protection of the
courts" (Cuba) when his basic rights had been violated.

This right had not been part of the draft and the delegates quickly
recognized it as a new feature and right to be added. By way of
an explanation Pablo Campos Ortiz, the Mexican delegate,
pointed out that Article 8 was recognized "by most national
legislation."

Then, as if he wanted to correct the absence of accountability in

Article 7 (to which discussions he had not been a party), he added
that this new right "assured protection against the acts of public
authorities who violated a person's fundamental rights".

He mentioned the fact that this right was included in the Bogota
declaration twenty-one Latin American nations (plus the U.S.) had
adopted that previous April.
Santa Cruz of Chile reminded his colleagues that consideration of
the draft declaration "would show that no article contained
mention of protection of individual rights against abuse of
authority" and "that the idea embodied in the Mexican amendment
filled a lacuna which was very evident in the draft declaration".

Ljuba Radevanovic, the representative of Yugoslavia, "found the

[Mexican] amendment difficult to accept. The amendment sought,
in effect, to permit the judicial branch of a Government to correct
abuses committed by the executive branch; it could therefore be
applied only in those States where a definite separation between
the two existed" and was therefore "quite incapable of universal
application".

Percy Corbet of the United Kingdom was also "troubled by the

words fundamental constitutional rights." "Her country had no
written constitution; therefore the word "constitutional" had a
special meaning when applied in the United Kingdom".

She, too, felt the matter should be raised in connection with the
covenant, as did Alan
Watt, her colleague from Australia.

Santa Cruz responded to these objections. The new right, he

said, fit in very well
with the contents of Article 10 "in which provision was made for
the protection of the
individual against abuses by other individuals or by the authorities
in cases where he
was accused of a crime. The Mexican amendment completed
those safeguards by including
guarantees against authorities who might attempt to infringe the
individual's constitutional rights". In response to the point made by
the United Kingdom representative he suggested adding the
phrase "or by law" at the end of the article.

This was done, and the amended Mexican proposal was adopted
by the Third Committee in its present shape by 46 votes to none,
with 3 abstentions.

The main rationale behind Article 8 was that of the need for
protection of the individual against abuses by the authorities.

The Reichstag Fire Decree, which Hitler announced after the

Reichstag went up in flames, "annulled almost all the basic rights
guaranteed by the [Weimar] constitution."

Ernest Huber, the Nazi theoretician, concluded from this that "the
constitution of the Nationalistic Reich is therefore not based upon
a system of inborn and inalienable rights of the individual [that
might] . . .limit and hamper the leadership of the Reich."

Since there no longer were any standards that fell "outside the
realm of the state and which must be respected by the state,"
officials could not and were not held accountable, he said.
The result was a totalitarian police state. In response, Article 8 of
the Declaration asserts both the need to have the standards and
the importance of holding officials accountable under the laws that
flow from them.

Alberto F. Canas, the representative from Costa Rica to the Third

Committee, captured the rationale behind Article 8 when he urged
that "certain clauses and articles should be added to the
declaration which would make clear that the individual being was
not being regarded as subordinate to the State. . . . The
government of a state could fall into the hands of a small group
which could exploit and oppress the rest of the population. . . .
The case of Hitlerite Germany had shown that a state which
placed its interests above those of its individual citizens entered
upon a path which led to war.

The Declaration should be," he said, "a weapon with which to

oppose and combat that concept".

Article 9 asserts "that no one shall be subjected to arbitrary arrest,

detention or exile."

Whether an official police or judicial action is "arbitrary" has to do

with the standard
against which that official action is measured. And in Nazi
Germany the categories
which the police and the judiciary used to interpret the laws and
decrees of the Fuhrer
were so vague that citizens could not know whether what they
contemplated doing
was illegal.

About personal security and integrity of the person we must

consider how many people were arbitrarily arrested, beaten,
detained, sometimes exiled and often tortured, shot, or gassed.
All of them had the "wrong" kind of blood and were opponents or
presumed opponents of the regime.

The unpredictable and therefore arbitrary application of the laws

permeated the entire
system.

The officials always could find a "reason," for the standard of

legality was whether something conflicted with the German
National Socialist world view.

Miiller reports that the "readiness of the [Nazi] courts to bow to the
wishes of their political masters was not limited to criminal cases
and discriminatory race laws".

A man in Leipzig owned a fleet of taxicabs and was the director of

a cooperative of taxicab owners. His disagreement with the
Ministry of Transportation came before the Munich Court of
Appeals, which told him that the "previously existing legal
protection . . . regarding actions of the police" had been set aside
by the Reichstag Fire Decree.
Parents who kept their children out of the Hitler Youth were guilty
of "abusing parental authority" because that kind of decision
undermined "the will of the German people".

A newspaper editor was fired and the contract he had with his
paper was broken because a Nazi official wanted him fired.

A known Nazi opponent was refused a driver's license.

The daily life of German citizens was replete with these kinds of
arbitrary interventions by the state and the police.

At the level of the Working Group of the Second Session what is

now Article 9 was the first sentence of what then was a longer
article.

This first sentence read as follows: "No one shall be deprived of

his personal liberty or kept in custody except in cases prescribed
by law and after due process."

Dr. Bienenfeld, the representative of the World Jewish Congress,

drew the Group's attention to the "danger of using the word 'law' .
. . [because] strictly speaking the actions of the Nazis were legal".

Bienenfeld's suggestion was supported by General Romulo of the

Philippines and Malik of Lebanon. When the Group did not heed
the warning and accepted the text as received, he repeated it in
the full Second Session.
He said the point he wanted to raise "was of great importance." It
was that the text of Article 9 "did not . . . specify the nature of the
law. Under the Nazi regime thousands of people had been
deprived of their liberty under laws which were perfectly valid".

He therefore suggested that the word "law" be denned as "law

conforming to the principles of the United Nations".

Later on, in the Second Drafting Session, Malik elaborated. He

said he felt that "the notion of law was left entirely to the
subjective interpretation of the State."

Arbitrary arrests did happen and they had to be "condemned,"

which is why he thought
that the word "arbitrary" was "probably the most important word in
the entire article and must be retained".

Santa Cruz also wondered about the paragraph being "open to

the Nazi interpretation of arrest for any offence". But no changes
were made and the sentence was adopted by 11 votes to 0, with
6 abstentions.

The matter became a moot point when the Third Session of the
Commission (by 10 votes to 4, with 2 abstentions) dropped
everything from the article except this U.K./Indiasponsored single
sentence: "No one shall be subjected to arbitrary arrest or
detention."
Hansa Metha, the Indian delegate, spoke for the majority when
she said that "the Declaration should lay down principles and not
become involved in details".

This short text went to the Third Committee. Upon the

recommendation of the USSR delegation and by a vote of 37 to 1
with 6 abstentions the phrase "or exile" was added at the end of
the article.

However, another USSR proposal -to qualify all three items in the
article (arrest, detention, exile) with the phrase "except in the
cases and according to the procedure prescribed by prior
legislation"-was rejected by 20 votes to 6, with 15 abstentions.

The drafters were just as suspicious of the Communist legal

system as they were of the Nazi one. In fact, they were suspicious
of all domestic legal systems that did not allow for outside review
of cases and laws, which is why Malik had said that the word
"arbitrary" carries a lot of weight in this article.

Article 10.
Everyone is entitled in full equality to a fair and public hearing by
an independent and impartial tribunal, in the determination of his
rights and obligations and of any criminal charge against him.

Violation: Post-September 11th, President George W. Bush

declared that the United States is now immersed in such an
"extraordinary emergency" that secret military tribunals will try
various foreign terrorist suspects who are arrested either in this
country or abroad. The president himself will decide who is so
tried and who isn't, and the rules of procedure, including
standards required for conviction, will be established by the
Secretary of Defense. Some of the offenses for which defendants
will be tried will be capital, and there will be no judicial review. The
president's decision was defended by Attorney General John
Ashcroft, who told the press, "Foreign terrorists who commit war
crimes against the United States, in my judgment, are not entitled
to and do not deserve the protections of the American
Constitution, particularly when there could be very serious and
important reasons related to not bringing them back to the United
States for justice." This presupposes that those being tried by the
tribunals are guilty - an assumption completely opposite of our
laws which have always assumed that defendants are innocent
until proved guilty. It also misses one of the main purposes of
constitutional protections, which is not merely to protect the rights
of the individual but also to restrain the government itself.

ARTICLE 10. Everyone is entitled in full equality to a fair and

public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal
charge against him. [Roughly one-fourth of the Declaration is
devoted to legal human rights. By the late 1940s all of these
provisions were standard features in the legal systems of civilized
nations.
The nazification of the German legal system taught the drafters
that the strongest protection against systematic human rights
violations is the kind of legal system Articles 6-10 prescribe.

Article 10 of the Declaration tells us that "everyone is entitled in

full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations
and of any criminal charge against him."

Hitler ruined the independence of the courts by his appointment of

Nazi cronies at all levels of the justice system and by the
establishment of special courts that dealt with the crimes listed in
his own decrees.He subverted both the old, established system
and created alongside it another one that functioned much like
revolutionary courts often do.

Throughout the entire system prosecutors and judges came to

use extremely vague categories of interpretation: the doctrine of
criminal types, under which someone could be condemned and
shot to death not for committing a crime but for being a criminal
"type"; the doctrine of creative interpretation, which allowed
judges to "adapt" the Weimar Constitution to life under the Fuhrer;
the ideological method, which led judges to look for an ideological
meaning and intent behind and underlying the laws; the concept
of a material crime, which was any activity that ran counter to the
National Socialist world view and which was closely linked to
effusive, medieval codes of honor and loyalty; the doctrine of
grasping the essences, according to which judges grasped the
whole of a situation and did not linger too much on the details of a
case.

These creative modes of legal interpretation were meant to bring

the Nazi system of jurisprudence in line with what the Fuhrer
wanted and when he wanted it. Since Hitler, as Fuhrer, was the
great and only real interpreter of the spirit of his Volk, there were
in Nazi Germany no independent and hence no impartial
tribunals.

The nazification of the legal system had gone so far that as soon
as the Allied forces took control over German territory they felt it
necessary to institute "Fundamental Principles of Judicial
Reform," article 4 of which calls for an "Independent Judiciary."
This article made it a law that "the promotion of judges will be
based solely on merit and legal qualifications."

The Second Session of the Commission was informed of these

matters by the Institute of International Law.

The drafters can therefore be said to have knowingly aimed

Article 10 at this kind of problem, in Nazi Germany as well as
elsewhere. Humphrey wrote the following first draft of this article:
"There shall be access to independent and impartial tribunals for
the determination of rights and duties under the law. Everyone
has the right to consult with and be represented by counsel".

Koretsky, the delegate from the USSR, "drew attention to the use
of the adjectives 'independent' and 'impartial' . . . and said that
these might be dangerous and unnecessary to use in connection
with tribunals of a sovereign State".

When Ralph Harry, the Australian delegate, asked what he

meant, Koretsky "explained that in his opinion the expression
'independent and impartial tribunals' might be considered as an
invitation to evaluate the courts of the judiciary of independent
governments. The possibility of such evaluation, he felt, should be
eliminated." He said he preferred the phrase "open tribunals,"
which did not have the same possibility for "criticism of certain
courts".

The problem with these comments is that this section of the

Declaration, and especially Article 10, was drafted precisely to
counteract the lack of independence of the Nazi courts that had
led to the horrors which had outraged the consciences of all the
representatives, Koretsky's included. Yet he did not think that
there was a standard outside of sovereign domestic legal systems
by which they could be judged. He "pointed out that in a specific
case the courts of certain countries [such as the U.S.] might justify
aggression of certain persons against others because of the
colour of their skin.

He wondered who would be in a position to say that such courts

were or were not impartial." He might also have been thinking
about the negative world reaction to the "open" and "public" purge
trials conducted by Stalin, which were roundly condemned for
lacking independence and impartiality.
The inclusion of this article was sponsored by Cassin.

The Working Group of the Second Session took over the first of
Humphrey's (above cited) two sentences unchanged, but the full
Second Session (upon the recommendation of William Hodgson,
the Australian delegate) added to the first sentence the phrase "of
any criminal charge against him". By 3 votes to 0 with 3
abstentions the same Working Group expanded the second
sentence to read that the defendant "shall be entitled to aid of
counsel, and, when he appears in person to use a language
which he can speak".

However, these details were dropped in the Third Session.The

Third Session adopted the following short U.K./India-sponsored
text: "In the determination of his rights and obligations and of any
criminal charge against him, everyone is entitled in full equality to
a fair hearing by an independent and impartial tribunal".

The phrase "in full equality" was added upon the insistence of the
USSR delegation over the objections of those who felt that that
right had already been covered by Article 7's right to equality
before the law. Pavlov's response was that "equality before the
law and equality before the courts were not synonymous.

He could," he said, "quote many examples to show that coloured

and white people were in theory equal before the law but that
such was certainly not the practice of the courts."
The French delegation turned this Soviet insistence into a formal
proposal, and the insertion of the clause was accomplished by a
vote of 7 for, 6 against, and 6 abstentions.

The words "and public" were added in the Third Committee as the
result of a Cuban amendment.

The Declaration contains two more legal human rights, Article 11

and Article 12.