Type of rights violatedA consideration of types of right leads inevitably tothe complex and controversial question of whetherhuman rights can or should be ordered hierarchically.In international law, this issue is sharply disputed.66Moreover, its examination necessarily involves aninquiry into the related concepts of jus cogens, ergaomnes, non-derogable, and core rights—each ofwhich is the subject of academic debate, none ofwhich has an agreed identity.67As Professor Pierre-Marie Dupuy cautions,introducing a hierarchy of rights creates a trapbecause, being based on value judgements, itgenerates arbitrariness.68 Nor is it reconcilablewith affirming that rights are indivisible andinterdependent.69 Yet analysis of treaty textssuggests that, strictly on the basis of agreedinternational law, ‘some rights are obviously moreimportant than other human rights’.70Though no agreed criteria differentiate ‘higher’from ‘ordinary’ rights, a widely used approachdistinguishes derogable from non-derogablerights.71 Drawing on Article 4(2) of the ICCPR,Article 15(2) of the 1950 European Convention onHuman Rights, and Article 27 of the 1969 AmericanConvention on Human Rights, non-derogable rights(common to all three treaties) include: the right tolife,72 the prohibition of slavery, the prohibition oftorture and cruel, inhuman or degrading treatmentor punishment, and the prohibition of retroactivepenal measures.This distinction contains weaknesses. If the natureof the right were to determine the ‘seriousness’ ofa violation, it might follow that a minor violation ofa non-derogable or essential obligation would beconsidered a ‘serious violation’, whereas a majoror sustained breach of a derogable right mightnot. Such an outcome would not be satisfactory.Recourse to additional criteria is therefore needed.The Independent Expert on the Right to Restitution,Compensation and Rehabilitation for Victims ofGrave Violations of Human Rights and FundamentalFreedoms, Professor Cherif Bassiouni, has assertedthat ‘the term “gross violations of human rights”has been employed in the United Nations contextnot to denote a particular category of human rightsviolations per se, but rather to describe situationsinvolving human rights violations by referring tothe manner in which the violations may have beencommitted or to their severity’.73


the UN Human Rights Due Diligence Policy on UN support to non-UN security forces,
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