Possible origins of the termThe relevance of the‘gravity’ of the violationDifferent legal systems distinguish betweenbreaches of obligation in various ways and for avariety of purposes. References to the ‘gravity’ ofhuman rights violations have evolved over time.States often referred to the gravity of violationswhen they framed ethical foreign policies, orimposed conditions on financial, technical, ortechnological assistance, for example.13The distinction between human rights violationswith reference to their gravity has been developedby international human rights supervisorymechanisms. The UN started to take positionson human rights problems around the world,overcoming the domestic jurisdiction limitation inthe UN Charter, when it began to distinguish ‘grossand systematic’ violations of human rights. Overtime, egregious and systematic violations of humanrights have come to be identified with violationsof rights the international community considersfundamental. This is reflected in recognition of ergaomnes obligations.14Separately and also over time, internationalunderstanding of human rights violations wasinfluenced by recent developments in internationalcriminal law (particularly the notion of crimesagainst humanity) and the increasing links betweeninternational human rights law, internationalhumanitarian law (IHL), and international criminallaw. These encouraged human rights bodies toimport notions and concepts from other legalenvironments to ‘enhance the possibility of seekingredress within the UN-based or regional humanrights systems for serious violations of humanitarianlaw as well as human rights law’.15 It is clear that thenotion of crimes against humanity, and the notionof serious violations of human rights, mutuallyinfluenced each other.16At the same time, international human rightslaw and IHL differ structurally from internationalcriminal law, with regard to the role and functionthat they assign to the state and the individual,their prohibitions, the remedies they provide, andthe legal consequences that follow a breach oftheir rules (particularly for individuals). For example,international criminal law requires the prosecutionto establish beyond reasonable doubt the identityof a perpetrator, subjective mental elements thatestablish individual culpability (mens rea), andproof of guilt. A criminal tribunal must establish‘in respect of each and every offence for whichconviction is sought, that this offence entails theindividual criminal responsibility of those whocommitted the acts’.17 Under human rights lawand IHL, by contrast, the identity and culpability ofperpetrators are less relevant factors. What mustusually be established is whether a state can beheld responsible for an act or omission that violatesa right recognized in a human rights treaty to whichthe state is a party


Arbitrary arrests and detention
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