This post is about the law violating human rights. I understand that this is only one of many ways in which rights can be violated, and certainly not the most important one. Genocide, poverty, torture, war etc. are all major human rights violations, but only rarely if ever do they occur because a law instructs people to kill, maim or impoverish their fellow human beings. On the contrary, many human rights violations result from breaking the law, and the law has often been the last refuge for human rights.
So we have two different types of rights violations, illegal and legal violations.
1. Illegal violations
Illegal violations are acts that violate human rights and at the same time break laws that make these violations illegal. This type of rights violation always implies some kind of inefficiency in the national justice systems. These justice systems are supposed to prosecute illegal rights violations, but often fail to do so, for two possible reasons: inability or unwillingness. They may be grossly inefficient, or they may be corrupt and complicit with the rights violators. So illegal violations may be divided into two subtypes:
1.1. Illegal violations caused by government incompetence
These violations occur because of the government’s inability to stop them. An example would be robbery or murder.
1.2. Illegal violations caused by government complicity
These occur because of the governments unwillingness to stop them. The judicial and police systems are covering for the rights violators. An example could be torture in Guantanamo.
2. Legal violations
Legal violations, on the other hand, are rights violations that are condoned or imposed by the law and by the justice system. This type as well can be further divided into two subtypes:
2.1. Violations that are imposed by the law
Some examples: capital punishment, jim crow, some aspects of Islamic law, blasphemy laws, lèse majesté laws, homosexuality laws…
2.2. Violations that are not punished by the law
These are acts which are not illegal because the law remains silent on them, but which violate human rights. This type can be further divided. Violations are not punished by the law
- either because it is believed that these violations should not be considered a crime (the contrary act is then often believed to be a crime) (case 2.2.1.)
- or because it is difficult to determine the party responsible for the violations (case 2.2.2.).
Some examples of case 2.2.1.: in some countries there is no legal concept known as marital rape; other countries do not outlaw abortion (for those who agree that abortion is a human rights violation). Some examples of case 2.2.2.: poverty, famine…
One caveat, however. “Legal” in this setting means “legal according to national law”. One could justifiably claim that there is no such thing as legal human rights violations since international law makes all violations illegal and renders national laws condoning or imposing violations, null and void. However, this is theory. In practice, national legal systems continue to impose and enforce, sometimes quite effectively, laws which either condone or impose violations.