International Human Rights Law and Practice
Third Edition
Ilias Bantekas
Hamad bin Khalifa University (Qatar Foundation)
Lutz Oette
SOAS, University of London
University Printing House, Cambridge CB2 8BS, United Kingdom
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Information on this title: www.cambridge.org/9781108711753
DOI: 10.1017/9781108612524
© Ilias Bantekas and Lutz Oette 2020
This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.
First edition Cambridge University Press 2013
Second edition 2016
Third edition 2020
Printed in the United Kingdom by TJ International Ltd, Padstow, Cornwall
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Library of Congress Cataloging-in-Publication Data
Names: Bantekas, Ilias, author. | Oette, Lutz, author.
Title: International human rights law and practice / Ilias Bantekas, Brunel University; Lutz Oette, School of Oriental and African Studies, University of London.
Description: Third edition. | Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2020. | Includes bibliographical references and index.
Identifiers: LCCN 2020004146 (print) | LCCN 2020004147 (ebook) | ISBN 9781108711753 (paperback) | ISBN 9781108612524 (ebook)
Subjects: LCSH: Human rights. | International law and human rights.
Classification: LCC K3240 .B36 2020 (print) | LCC K3240 (ebook) | DDC 341.4/8–dc23
LC record available at https://lccn.loc.gov/2020004146
LC ebook record available at https://lccn.loc.gov/2020004147
ISBN 978-1-108-71175-3 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
This book is dedicated to the late Rupa Reddy, a dear colleague and talented scholar whose passion for, and commitment to the human rights of women will be an abiding memory and a lasting inspiration.
The cover image by Safia Ishaq Mohamed is a painting and artistic reflection of the arrest of members of the No to Women Oppression Group in Sudan. Safia Ishaq Mohamed graduated as a student of the Fine Arts College in Khartoum in 2010, and used her art to speak to the role of women in society. When she took part in demonstrations in 2011 as a member of the pro-democracy Girifna protest movement, she was abducted and raped by three Sudanese security officers. She was widely admired for her subsequent courage to speak out about her ordeal, posting her testimony on YouTube.
Safia Ishaq Mohamed brought her case against Sudan before the African Commission on Human and Peoples' Rights, which is still pending (it was declared admissible in 2014). She subsequently had to flee the country and now lives in France where she has participated in several art exhibitions. She strongly believes in the powerful role of art in addressing human rights issues, which was particularly prominent in the paintings by women during the Sudanese revolution in 2019.
5.4
5.5.1
5.5.3 Breadwinners, Social Security and Discrimination: Zwaan-de Vries v.
5.5.4
5.5.5
5.5.6
5.5.7
5.5.8
5.5.9
5.5.11 Shortchanged:
5.5.12
6.2.6
6.2.5.1
6.2.5.2
6.2.5.3
6.2.7
6.2.8
6.3 The Inter-American
6.3.1
6.3.2
6.3.3
6.3.4
6.4.3
7.2.1.1
7.2.1.6
7.2.2.1
7.2.3.3
7.2.3.4
7.2.3.5
7.6
Case Study 7.2: Restoring Ancestral Lands to Indigenous Peoples –Mayagna (Sumo) Awas Tingni Community v. Nicaragua
7.6.2
Interview 7.1: Nepal before the Human Rights Committee (Mandira
7.7 The Hissène Habré Case: The Interplay between Domestic, Regional and
8.2
8.2.4 McCann v. United Kingdom: Absolute Necessity in the European Court of
8.2.5
8.2.6
8.2.7
8.3
8.3.2
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8.3.5
8.3.6
8.4
8.4.3
8.4.4
8.4.5
The Role of Medical Documentation in Combating Torture: Istanbul Protocol (Dr Önder Özkalipçi)
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the costume and insignia of their profession, as is shown by certain monuments of the reign of Charles V.
Fig. 362. Mausoleum of Philip II., King of Spain, near the high altar in the Escurial. This group of gigantic statues in bronze gilt is by Leoni. The king, kneeling in front of a prie-dieu, is arrayed in a mantle, upon which are represented the coats-of-arms of his different states. Beside him are his three wives—Elizabeth of France to the left, next to her Anne of Austria, and, to the right, Mary of Portugal. Behind him is his son, Don Carlos. —“Iconografia Española,” by Carderera.
The flat tombs consisted of a slab six feet six inches long, either of some hard stone or of marble, let into the ground or the pavement above the coffin (Fig. 363). Upon the slab was originally carved the cross, no matter what might be the condition of the person interred, with a crozier for a prelate and a sword for a knight. These objects were reproduced with considerable skill by carving them out of the stone and plastering the hollow with red or black cement, which had the effect of making their outline more distinct. In the twelfth century, the flat tombs were decorated with a bordering around the stone, similarly engraved, and intended to form a fillet within which came the epitaph, with the name of the deceased and the date of his death. Later still, as in the case of raised tombs, the figure of the deceased came to be represented on them. This was so in the time of Louis VII., the statues being made to represent the image of the deceased in the dress of his particular station in life, with his hands crossed upon his breast; and, subsequently, lions and dogs were added as accessories—the whole being carved into the stone. The figure of the deceased was often surrounded with architectural devices. At first the figure was placed under a colonnade; subsequently a very complicated edifice was erected, with the statue of the deceased erect in the foreground (Fig. 364). The hands and feet were often cemented on in white or black marble. Flat tombs made either of brass, silver, or bronze were also used, the last-named metal being much in vogue in the thirteenth century; for example, we find it in the tomb of Ingerburga, wife of Philip Augustus, at St. Jean-en-Ile, near Corbeil; in that of Blanche, wife of Louis VIII., at Maubuisson; in that of Marguerite, wife of St. Louis, and in that of Blanche, their daughter, at St. Denis. Prince Louis, son of St. Louis, is also buried in that church, his tomb being in copper enamelled.
Fig. 363. Flat Tomb of Sibylle (wife of Guy de Lusignan, King of Jerusalem), who died in 1187. In the church at Namèche, near Namur. The inscription, half effaced, may be translated as follows:
“Here lies the rightful heiress of Samson (a village near Namur), who was descended in a direct line from the King of Jerusalem. Let us pray God for her soul’s consolation.”
Many tombs were far more sumptuous. Those of Louis VIII. and Louis IX. were in silver-gilt, decorated with carved figures. Alphonse de Brienne, Comte d’Eu, had a tomb of copper-gilt enriched with enamel. It was probably at about the same period that the chapter
of the Abbey of St. Germain des Prés (Paris) covered with mosaics and filigree-work the ancient tomb of Fredegonde; for it is difficult to believe, in spite of Mabillon and Montfaucon, that this tomb dates back to her death at the end of the sixth century.
Fig. 364.—Flat Tomb of Alexandre de Berneval, architect of the Church of St. Ouen, at Rouen, and of his pupil.—In the Church of St. Ouen. (Fifteenth Century.
In the fifteenth century the English, masters at that time of a considerable part of France, laid hands upon these plates of copper, silver, and gold to convert them into coin; others which escaped spoliation were melted down during the Revolution, so that we must look to England and Belgium for flat metal tombs still in a state of preservation.
Such are the chief characteristics of funeral monuments in the Middle Ages and down to the period of the Renaissance. These monuments, many of which are still extant, throw great light upon the costumes of their time. We must now proceed to speak of the cemeteries, or places of public burial, in which tombs above ground were legally permitted as soon as the Church had established its authority. Burials within the churches were, in fact, a special privilege for the rich, who were able to purchase it in perpetuity. The presence of these graves in buildings intended for public worship was, moreover, in accordance with the very essence of Christianity, by reason of the practice already alluded to, of placing the body of some saint beneath the altar.
The primitive Latin Church, in the second and in the early part of the third century, performed the ceremonies of worship in the cemeteries of the Christians, that is to say, in the crypts and the Catacombs. The Christians, in imitation of the pagan custom of converting old quarries into places of common burial, called hypogea, sought refuge, during persecution, in some disused quarries near the gates of Rome, and there they celebrated their rites in secret and buried their dead. These are the Catacombs, which constitute a regular subterraneous town, and the galleries of which, composing an immense labyrinth, have been opened in the neighbourhood of and in close proximity to the ancient roads which radiated from Rome towards the surrounding districts. The appropriation of these Catacombs for Christian burial-places unquestionably dates from the first century of Christianity. The best known and the most famous are those which extend beneath the basilica of St. Sebastian, and form part of what was called the Cemetery of St. Calixtus, beneath the Appian Way. Since the
sixteenth century, when these Catacombs were first explored and thoroughly studied, this generic name has been given to all excavations which have led to the discovery of Christian graves. Each catacomb was called after the martyr whom the faithful had interred there during the persecutions, and whose relics have been found beneath altars, which were chiefly erected and decorated during the eighth century.
Fig. 365. Crypt of the Chapel of St. Agnes, in the Catacombs at Rome, set apart for the interment of Christians. From M. Perret’s work, “Les Catacombes de Rome.”
The Catacombs are composed of very narrow galleries, from ninety-seven centimetres to one metre thirty centimetres in breadth (thirty-eight to fifty-one inches), cut irregularly through the stone. These galleries, most of them very short, crossing each other in such a way as to form an inextricable maze of streets and crossways, had an arched roof supported by masonry here and there. At intervals
there were chambers, or cubicula (Fig. 365), hollowed out by the Christians to serve as chapels or oratories; these were either quadrangular or circular, of small dimensions, and often decorated with fresco paintings of different epochs dating from the first to the fourth century. But little fresh air could penetrate into these galleries by the openings which had been made here and there, and also through old shafts situated at intervals of about three hundred yards from each other, which had been used in working the quarries. In the lead-lined partitions, the graves, most of which are still intact, were ranged in rows one above the other. Each grave was a hollow of about the size of a human body hewn lengthwise in the side of the gallery and closed with a large brick, or with a stone or marble slab, set in cement. Five or six bodies—sometimes as many as twelve—were so placed one above the other. The paintings (Fig. 366), the sculptures, and the mosaics of the Catacombs, are the first products of Christian art as it shook off the traditions of paganism, and the subjects represented are generally taken from the Holy Scriptures; such as the Leaving the Ark, Abraham’s Sacrifice, Jonah, the Good Shepherd, the Raising of Lazarus. Many very touching funeral epitaphs have also been discovered on them.
Fig. 366. Funeral Fresco discovered in the Cemetery of St. Pretextat, in the Catacombs at Rome. The two doves, emblems of marriage, indicate the tomb of the husband and wife.—From M. Perrét’s work, “Les Catacombes de Rome.”
Nor is it merely from the day when the triumphs of Christianity led to the building of the basilicas in Rome that personages of rank have been buried inside the churches. The bodies of bishops and leaders of the Catholic community, those of patricians and of barbarian princes who succoured the Church in her early days, were the first to be received within the sanctuary in as close proximity as possible to the relics of the saint to whom the building was dedicated.
Very soon these burial-places began to be classified according to the individual merit of the dead, and the importance of their rank or fortune. Laymen and priests had a right to be buried in the aisles of the church, or in the part corresponding to the apse, and it is no exaggeration to say that the interior was often so full of graves that they extended outside the building. Such was the case after the seventh century. A small space, either round or square, was left in front of the façade of the churches, to be reserved as a privileged place of burial, and was called the aitre or parvis(paradisus); hence the origin of the rural cemetery which extends along the sides of a country church, or forms a green in front of it.
Fig. 367. The Cross of the Bureau Family, formerly in the Cemetery of the Innocents, Paris. Lenoir’s “Statistique Monumentale de Paris.”
Fig. 368. The Knight of Death, by Albert Dürer. This celebrated engraving, so characteristic of the fantastic genius of the Middle Ages, represents a fully-armed knight going to the wars with a presentiment of coming evil, and accompanied by Sin and Death, personified as his running footman and esquire. After the Fac-simile of the original Engraving, dated 1513, by one of the Wiericx (1564).
Burial in the churches was at first interfered with, if not prevented, even under the Christian emperors, by the Roman law, which prescribed that the cemeteries should be extramural. Thus, according to tradition, many of the early French saints were first of all buried outside the towns, and their remains were subsequently placed within some consecrated building or a church, erected over their original grave. The ancient cemetery in some cases developed into an inhabited suburb, as at Tours, where the Quartier de St. Martin occupies the ground where that saint originally reposed. In other districts, the Christian cemeteries occupied the same site down to the thirteenth century, as at Arles, Autun, Bordeaux, the cemeteries of the Aliscan (Elisiicampi), St. Seurin, and Champ-desTombes. Other cemeteries, rendered necessary by the increase in the size of the towns, were made at about this period. Thus, after the accession of the Capet dynasty, the capital increased so much in size that it was necessary to limit the space accorded to buryingplaces, and twenty-two parishes on the right bank of the Seine had no cemeteries of their own. A track of waste land at Champeaux, running along the Rue St. Denis, was converted into what was called the Cemetery of the Innocents (Fig. 367), and it consisted of a large enclosure with three gateways; the first at the corner of the Rue aux Fers; the second at the corner of the Rue de la Ferronnerie; and the third in the Place-aux-Chats. Philip Augustus surrounded it with a wall in 1186, to prevent it being overrun by animals and the inhabitants of the neighbourhood. To this wall was afterwards added a covered gallery, called the charnel-house, in which were buried those whose fortune allowed them to purchase the privilege of being interred apart from the masses. This charnel-house, which was damp and dismal, was paved with tombstones, and its walls were covered with epitaphs and funeral monuments. In the thirteenth century it became a fashionable resort in which tradesmen placed their wares for sale, and the abode of death was converted into a place of rendezvous and promenade for the idle.
This long gallery was built at different epochs, out of the largesses given by several inhabitants of Paris. Marshal de Boucicault
built part of it in the beginning of the fifteenth century, and the famous Nicholas Flamel, who is said to have had a bookstall in the charnel-house, built at his own cost the whole side which ran parallel with the Rue de la Lingerie, and in which he and his wife Pernelle were buried. This charnel-house was surmounted by large galetas (lofts) in which the bones of the dead were preserved. The famous “Danse Macabre” (Figs. 369–392), that philosophical allegory in which death was leading in the dance “persons of all conditions,” was painted about the year 1430 upon the walls of the charnelhouse, on the Rue St. Honoré side.
Figs. 369 to 392. The Dance of Death, a Fac-simile of Wood Engravings executed after the Holbein Drawings in the “Simulachres de la Mort;” small 4to, Treschel Brothers, Lyons, 1538. “As fish are taken speedily with the hook (aine), so does death take men; for death spares no man, king nor emperor, rich nor poor, noble nor villain, wise nor fool, physician nor surgeon, young nor old, strong nor weak, man nor woman. Nothing is more certain; all have to take part in death’s dance.”
Explanation taken from the “Forteresses de la Foy,”
Manuscript of the Fifteenth Century, in the Library at Valenciennes.
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
The Dance of Death, after Holbein’s Drawings (continued).
