Possible origins of the term
The relevance of the
‘gravity’ of the violation
Different legal systems distinguish between
breaches of obligation in various ways and for a
variety of purposes. References to the ‘gravity’ of
human rights violations have evolved over time.
States often referred to the gravity of violations
when they framed ethical foreign policies, or
imposed conditions on financial, technical, or
technological assistance, for example.13
The distinction between human rights violations
with reference to their gravity has been developed
by international human rights supervisory
mechanisms. The UN started to take positions
on human rights problems around the world,
overcoming the domestic jurisdiction limitation in
the UN Charter, when it began to distinguish ‘gross
and systematic’ violations of human rights. Over
time, egregious and systematic violations of human
rights have come to be identified with violations
of rights the international community considers
fundamental. This is reflected in recognition of erga
omnes obligations.14
Separately and also over time, international
understanding of human rights violations was
influenced by recent developments in international
criminal law (particularly the notion of crimes
against humanity) and the increasing links between
international human rights law, international
humanitarian law (IHL), and international criminal
law. These encouraged human rights bodies to
import notions and concepts from other legal
environments to ‘enhance the possibility of seeking
redress within the UN-based or regional human
rights systems for serious violations of humanitarian
law as well as human rights law’.15 It is clear that the
notion of crimes against humanity, and the notion
of serious violations of human rights, mutually
influenced each other.16
At the same time, international human rights
law and IHL differ structurally from international
criminal law, with regard to the role and function
that they assign to the state and the individual,
their prohibitions, the remedies they provide, and
the legal consequences that follow a breach of
their rules (particularly for individuals). For example,
international criminal law requires the prosecution
to establish beyond reasonable doubt the identity
of a perpetrator, subjective mental elements that
establish individual culpability (mens rea), and
proof of guilt. A criminal tribunal must establish
‘in respect of each and every offence for which
conviction is sought, that this offence entails the
individual criminal responsibility of those who
committed the acts’.17 Under human rights law
and IHL, by contrast, the identity and culpability of
perpetrators are less relevant factors. What must
usually be established is whether a state can be
held responsible for an act or omission that violates
a right recognized in a human rights treaty to which
the state is a party

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