국제인권법(international law of human rights)는 인간, 즉 자연인의 기본적 권리를 보호, 증진함을 목표로 하는 국제법의 한분야이다. 국제인권법은 주로 국가간 조약으로 구성되어 있다.[cf. 국제인도법은 전쟁법과 깊은 관계를 가지고 있다.]
전통국제법 하에서 개개의 인간, 즉 개인은 단지 특정국가의 시민으로서만 고려의 대상이 되었고 개인은 그들이 속한 국가의 단순한 부속물, 즉 국가이익이 명령하는 바에 따라 사용되거나 또는 희생될 수 있는 국가수중의 단순한 볼모였다. 다만 19세기 노예무역금지 조약, 노동자의 획일적 대우를 위한 ILO협약, 동유럽의 소수민족보호를 위한 조약들이 체결되기도 하였다. 이런 조약들은 인도적 고려뿐만 아니라 체약국들의 이기주의에도 기초하고 있었다. 제2차 세계대전 후의 인권문제는 정치적 고려가 선행되기는 하였으나 더 이상 경제적 이해관계의 측면에서 다루어지지는 않게 되었다. 사람은 개개 인간의 자격으로 보호받아야 한다는 관념이 형성되기 시작하였다.
국제인권법은 유엔과 깊은 관계를 가지고 있다. 유엔에서 인권문제의 전개는 유엔총회에서 누가 다수파였는가에 따라 세단계로 분류되는데
- 제1단계(1945년에서 1950년대 말): 국가간섭으로부터의 자유를 본질적으로 하는 이른바 제1세대인권으로 시민적 정치적 권리가 강조되었다.
- 제2단계(1960년에서 1970년): 국가에 대해 복지이익을 청구할 수 있는 개인의 권리, 즉 제2세대인권으로 불리는 경제적, 사회적, 문화적 권리가 강조되었다.
- 제3단계(1970년대 중반~1980년대 말): 결속과 형제애가 강조되는 시기였다.
International Human Rights
7 Several international conventions dealing with specific gross human rights violations, such as the Convention on the Prevention and Punishment of the Crime of Genocide (78 UNTS 277), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1465 UNTS 85), the Slavery Convention (60 LNTS 253), the International Convention on the Suppression and Punishment of the Crime of Apartheid (1015 UNTS 243), and the International Convention for the Protection of All Persons from Enforced Disappearance (GAOR 61st Session Supp 49 vol 1, 408), explicitly oblige States Parties to prosecute the respective abuses. Whether a more comprehensive and strict duty to prosecute all crimes against humanity and war crimes can be derived from the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity (154 UNTS 73) is controversial, however.
8 Though the comprehensive human rights conventions do not provide for a provision mandating criminal trials against offenders, the international and regional human rights treaty bodies have based their call for criminal prosecution of serious human rights violations on the respective general provisions which oblige States Parties to protect and ensure human rights. The Human Rights Committee in the early 1980s and later the IACtHR in its 1988 judgment in the Velásquez Rodríguez v Honduras Case were the first to acknowledge that there is a duty to investigate and punish. This obligation should, if possible, be complemented by an attempt to restore the rights violated and to provide compensation. This requires the existence of a legal system as well as the political will to comply with these obligations. The ECtHR since the mid-1990s followed this approach in several Turkish and later in Russian cases. The Court held in Aksoy v Turkey that Member States have an obligation to conduct a thorough and effective investigation capable of leading to the identification and punishment of those responsible in case of torture allegations. This also applies to the right to life. In the case of Mahmut Kaya v Turkey the Court held the persistent failure by Turkish authorities to investigate unresolved killings in south-east Turkey to be in violation of a State’s duty to prevent repetition. The duty to secure the right to life by an effective official investigation and to ensure the accountability of State agents responsible for unlawful killings was reaffirmed in the Chechnian disappearance case of Bazorkina v Russia.
9 Current jurisprudence of the Human Rights Committee, the Committee against Torture, and the Committee on the Elimination of Racial Discrimination indicates a critical position by the international treaty bodies towards amnesties and their alleged potential to contribute to reconciliation. The essential requirements for dealing with past human rights abuses under the International Covenant on Civil and Political Rights (1966) according to the Human Rights Committee are an official investigation with a final report identifying the perpetrators, compensation and rehabilitation of the victims, the determination of individual responsibility, and efforts to establish respect for human rights, to ensure non-recurrence, and to consolidate democracy. Gross violations of human rights, such as summary executions, torture, and enforced disappearances should not be amnestied. At least the decision to grant an amnesty for gross human rights violations should be based on a democratic process. In order not to weaken the transition to security and democracy, human rights violators should be excluded from service in the military, the police force, and the judiciary. Additional measures should be taken to promote national reconciliation, that is institutions and programmes to serve as a channel of redress, as well as financial and other compensation for the victims. A minimum requirement is the conduct of an official investigation as a necessary form of redress, measure of reconciliation, and prevention of further crimes.
10 The IACtHR in the Barrios Altos Case even went a step further by declaring all amnesty laws for forced disappearance, genocide, torture, and crimes against humanity to be in violation of the American Convention on Human Rights (1969) because they are considered to be incompatible with victims’ rights. But even though there is universal consensus that amnesties are usually detrimental to the prevention of further crimes, a right of victims to have their abusers prosecuted has been repeatedly rejected by the Human Rights Committee (see eg Bautista de Arellana v Colombia) and by the ECtHR (see eg Öneryildiz v Turkey).
11 Whether there is an absolute ban on amnesties for serious human rights violations under customary international law is doubtful. Despite the trend to repeal amnesty laws in Latin America and recent efforts to provide for some sort of criminal responsibility there does not seem to be an opinio iuris much less a general practice on an uncompromised duty to criminally prosecute all serious abuses. The South African Truth and Reconciliation process, with its individual amnesty scheme in exchange for confession, seemed acceptable by and large to the international community. Despite efforts to regulate amnesties in the Rome Statute for the ICC no agreement could be reached which would outlaw such measures in their entirety.
12 An additional issue which has been raised in recent cases concerns the temporal scope of the obligation to investigate past human rights abuses. It is closely related to the exigencies of ratione temporis jurisdiction. In Janowiec v Russia, the ECtHR held that it lacked temporal jurisdiction to examine the Russian Federation's investigation into the Katyń massacre of Polish prisoners of war in 1940 in terms of a violation of Art. 2 ECHR, because there was no ‘genuine connection’ between the massacre and the entry into force of the Convention. Furthermore the Court denied a violation of Art. 3 ECHR in respect of the family members because there had been no uncertainty about the death of the victims when the Convention entered into force for the Russian Federation in 1998.