The Human Rights to Food, Medicine and Medical Supplies, and Freedom from Arbitrary and Inhumane Detention and Controls in Sri Lanka
Paust, Jordan J., Vanderbilt Journal of Transnational Law
Are the denial of adequate and available food and the denial of adequate and available medicine and medical supplies violations of human rights law? This Essay demonstrates that such denials are not only violations, but are quite serious violations of basic human rights. Such denials of food or medicine and medical supplies tend to be among the most egregious types of human rights violations, since those who can least afford to suffer tend to be victims. Usually only the poorest of the poor, the displaced, the infirm, the disabled, and children suffer from such calculated or foreseeable inhumanity. The denial of food or medicine and medical supplies can lead to slow, painful, inhumane deaths--not among enemy combatants and official elites, but among the poor, the disadvantaged, and children. It is particularly egregious for any person to use the denial of food or medicine and medical supplies as a governmental tactic or political weapon. All such denials must be exposed and opposed. It is most appropriate and necessary that future U.S. Department of State Country Reports (Country Reports) address such egregious human rights violations in Sri Lanka and wherever else they occur.
In a given context, denials of these types also violate related prohibitions under the laws of war termed "human rights in times of armed conflict" and constitute serious war crimes. It has long been recognized that there is a "civil war" occurring in Sri Lanka that has reached at least the level of an insurgency(1)--thus implicating common Article 3 of the 1949 Geneva Convention (common Article 3)(2) and Additional Protocol II (Protocol II) thereto.(3)
Common Article 3 reflects customary international law,(4) and several tenets of customary international law are mirrored in Protocol II.(5) Human rights norms are also mirrored in the Geneva Conventions. For example, common Article 3 requires that the government treat "humanely" all those "taking no active part in the hostilities.(6) Moreover, common Article 3 expressly provides that it shall be prohibited "at any time and in any place whatsoever with respect to the above-mentioned persons" to engage in "cruel treatment" of such persons as well as "outrages upon personal dignity, in particular humiliating and degrading treatment."(7) The protections found in common Article 3 and in Protocol II reach a state's own nationals.
In case of an armed conflict of an international character, common Article 3 continues to apply as a customary set of minimum standards.(8) With respect to co-nationals, however, Articles 4 and 13 of the Geneva Civilian Convention limit additional direct protections to those protections covered in Articles 13 through 26.(9) As explained below, there are several allegations and recognitions with respect to the denial of food, the denial of medicine and medical supplies, and the denial of freedom from arbitrary and inhumane detention and controls, implicating common Article 3 and Articles 16, 23, and 24, as well as various articles in Protocol II. Moreover, if specific intent to commit these types of denials is shown, the denials can even constitute international crimes of genocide,(10) These international crimes implicate not merely individual responsibility, but also the duty of the government to seek out, arrest, and initiate prosecution or extradition of those reasonably accused of such crimes.(11)
Are arbitrary and inhumane detention and controls of individuals or groups of persons human rights violations? They are, although legal standards are related to terms such as "arbitrary," "unnecessary," and "strictly required." Additionally, there are human rights protecting the freedom to leave one's country and to seek asylum in foreign lands. Liberty and freedom of movement are not absolute, but there are significant limitations to what restrictions government can impose, even in the case of civil war. Moreover, those detained or controlled are entitled to certain rights specified in human rights instruments, including the Geneva Conventions. …