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<p>In this minithesis, I demonstrate that International Humanitarian Law and International Human Rights Law are two distinct but related fields of law. First, the examination deals with the instance that the aim of both branches of law, the protection of human rights, is common, but the approach to reach this aim is different. In this regard, I show numerous points of divergence of both branches of law which have their origin in the fundamentally different historical developments of International Humanitarian Law and International Human Rights Law. I give the main attention to the application of both sets of law, whereby the contractions and legal gaps of the protection of human rights become apparent. The proposals dealing with the solution of these issues are discussed. I argue that a new legal instrument for a comprehensive and compatible protection of human rights is necessary, especially in times of internal strife. Regarding the question as to whether International Humanitarian Law or International Human Rights Law should apply if both branches are applicable, I take the view to apply the roman principle of law lex specialis derogat legi generali in such a way that the more specific rule whenever they have a specific justification for dealing with specific problems is applicable. Both branches of law do not merge to one, but they converge to a harmonious relationship, where they complement each other and provide the highest protection of human rights.</p>

Thesis advisor: David Hollenbach / Despite the triumphalistic story of human rights progress, the twentieth century has witnessed the bloodiest human rights violation in of all of human history and the death toll of these atrocities has yet to decrease as we proceed into the new millennium. If it is evident that the egregious reality of violation of human rights is widespread and covers a large part of the globe, it is nonetheless also crucial to note that it has particularly taken on unbearable proportions on the African continent. Strangely enough, despite this extremely alarming situation, the world remains stonily undisturbed. One of the most flagrant and upsetting examples of this reality, which has distressed even the most skeptical, is the 1994 genocide of Rwandan Tutsis. In fact, nowhere else has the abstract and idealistic rhetoric of human rights, as well as the international community and the Church's commitment to human rights protection been as deeply demystified and radically questioned as in Rwanda. Hence, the present dissertation raises the question of how human rights discourse can articulate a vision of the subject of right that is not purely abstract and idealistic, but also takes into account the actual humanness of the subject of rights in his or her socio-historical condition. Furthermore, it asks how such a vision, one that is consistent with human rights exercise, can help reconstruct human rights ethics in a way that promotes greater respect for human rights for all, and how it can resolve the problem of apathy in the face of the human cry. In response to the above questions, the dissertation suggests an alternative to the inadequacy of the present human rights discourse that it articulates in two important moments. First, in a critical moment, it uses the tools of both political and liberation theologies in their respective critiques of modernity and colonial legacy of exploitative systems to formulate a threefold argument. This is an argument that challenges the epistemological assumptions, the ideological practical stance, and the perverse operation of human rights in the historical context of Africa in general, and that of Rwanda in particular. In its second moment, the argument relies on the dialogue between political and liberation theologies and, through a creative and internalized reading of their mutually constructive contributions, suggests new possible paths towards a new ethics of human rights. Such an approach not only reclaims the socio-historical conditions of the subject of rights, but it also places her suffering and its redemptive praxis at the heart of ethical concern and the struggle for human rights. Finally, it proposes an ethics that fosters a revolutionary anthropology of the suffering subject as a call to liberation and solidarity, as well as its consequential promotion of social structural transformation. / Thesis (PhD) — Boston College, 2010. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Theology.

MSc (Med), (Bioethics and Health Law), Faculty of Health Sciences, University of the Witwatersrand / Access to health care is a constitutionally recognized right, under section 27 of the South African Constitution. Fifteen years post the first democratic election in South Africa the realization of this right is the focus of this research report. In 1997 the South African Human Rights Commission (SAHRC), a statutory body assigned to evaluate the realization of access to health care, held a public enquiry into the matter. The report was released in early 2009. The public health care system was found to be in a „lamentable state‟. South Africa faces a number of challenges that complicate the progressive realization of access to health care . For example, the country is currently in recession; the HIV / AIDS statistics is among the highest in the world placing a huge burden on public health; South Africa has the highest income inequality globally and the gap between public and private health care, with regards to affordability and quality of service remains a great concern. A way of addressing this problem is to engage ethical principles such as beneficence, non-maleficence, autonomy and (distributive) justice. Each of these in application can argue a case for the moral obligation to initiate a more effective national health care system. Rawls1 (1999) emphasized the centrality of justice in consideration of the bio-medical principles. 1 Rawls, J. 1999. A Theory of Justice. Revised edition. Cambridge, Mass.: Harvard University Press., 1971. Oxford: Clarendon Press, 1972. The principle of justice and its derivative, distributive justice, is of importance when making a moral argument for equal access to health care for all. Farmer and Campos (2004:28) rightly asks2: “What does it mean, for both bioethics and human rights, when a person living in poverty is able to vote, is protected from torture or from imprisonment without due process, but dies of untreated AIDS? What does it mean when a person with renal failure experiences no abuse of his or her civil and political rights, but dies without ever having been offered access to dialysis, to say nothing of transplant?” There is a need for ethicists to become more involved in arguments pertaining to the inequalities in distribution of social goods. Legislation and case law in South Africa also affirm the right to access health care services and have as their grounding normative ethical tenets. The recommendations made by the SAHRC, together with the planned national health insurance aimed at addressing the gap between public and private health care, can only become a reality through successful implementation of a monitored process based on ethical principles. There is a need for a practical implementation of current ethico-legal and human rights principles through every phase of the health care system to serve as monitors to ensure the success of this guaranteed right that so few people have genuinely seen realized. The findings of the SAHRC, together with the response from the Department of Health, serve as a basis for planning towards successful 2 Farmer, P. and Campos, N.G. 2004. Rethinking Medical Ethics: A view from below. In: Developing World Bioethics, 4 (1), 17-41 implementation of an equitable health service system that is of an excellent standard. To aid in this process an ethical framework could be of use to assess the policies formed along the way as well as the practical implementation thereof. This research report is an analysis of current literature and data available on access to health care in South Africa in light of human rights and ethical arguments for its provision. The aim is to reflect on the realization of greater access to health care since 1994, identifying current hampering factors in achieving this and proposing a broad set of guidelines that can be applied to the reform process already underway in South African health care.