International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis

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Paragraph 2 of Article 75 reads:. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or military agents:. Paragraphs 3 and 4 of Article 75 contain due process rights, while paragraph 5 deals with the treatment of female prisoners.

Paragraph 6 emphasises that the various regulations of the Article remain in force on the cessation of hostilities for people who are still being detained. Paragraph 7 contains provisions on the prosecution and trial of persons who have been accused of war crimes or of crimes against humanity.

A prisoner of war POW is a combatant who is imprisoned by an enemy power during an armed conflict. The first international convention to define the requirements for combatants to be eligible for treatment as prisoners of war was the Second Hague Convention The Geneva Conventions are the main conventions today that provide a framework for protective rights of POWs. The basic principle is that being a soldier is not a punishable act in itself. The laws apply from the moment a prisoner is captured until he is released or repatriated.

It is prohibited to torture prisoners, and a prisoner can only be required to give his name, date of birth, rank and service number if applicable.

Navigating the Terrain at the Intersection of Human Rights and Humanitarian Law - Just Security

According to Article 4 Third Geneva Convention Relative to the Treatment of Prisoners of War, protected combatants include military personnel, guerrilla fighters and certain civilians. To be entitled to prisoner of war status, the combatant must conduct operations according to the laws and customs of war, that is, be part of a chain of command, wear a uniform and bear arms openly. Thus, franc-tireurs, terrorists and spies are excluded. It also does not include unarmed non-combatants who are captured in time of war; they are protected by the Fourth Geneva Convention. Non-combatant is a military term describing persons not engaged in combat, such as civilians and medical personnel.

Persons who do not have the status of wounded or sick member of armed forces protected by the First and Second Geneva Convention or prisoner of war protected under the Third Geneva Convention are considered protected persons under the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Article 4 defines protected persons as the following:. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. Article 5 of the same Convention circumscribes the rights of protected persons when they commit hostile acts:.

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be. This term refers to persons who carry arms or engage in warlike acts in alleged violation of the law of war. Such persons are not necessarily considered lawful combatants and therefore are not necessarily accorded the rights of prisoners of war.

In this case, the Supreme Court upheld the judgement of a United States military tribunal regarding several German saboteurs in the United States. This decision states:. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in an unacceptable way.

These concerns have found response and support by the United States Supreme Court. Rumsfeld et al. The Court further held on the same day that detention may be challenged by detainees with this status. The Supreme Court held that United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and who, in this case, are incarcerated at the Guantanamo Bay Naval Base.

For decades common Article 3 of the Geneva Conventions was the only written rule containing generally applicable humanitarian norms related to internal armed conflicts. Article 3 requires parties to the Conventions to respect the integrity of persons who are not directly involved in the hostilities.

As the scale and intensity of internal or civil wars increased significantly in the s and s, the Diplomatic Conference decided to extend and elaborate this article in Protocol II to the Geneva Conventions. The Preamble of Protocol II establishes the principle that every human being must be protected in times of war. The extent to which this applies, and the people whom it protects, is described in the Protocol. Article 1 1 Protocol II specifies the criteria for its application.

Insurgents must have military forces or other organised armed troops who control part of the territory and who are capable of sustaining coherent military operations. Clearly, with these kinds of criteria, in practice, the Protocol will apply almost exclusively to civil wars in which battles and military operations take place on a large scale. Situations involving internal disturbances and tensions - such as riots and isolated actions - are expressly excluded from the Protocol. The provisions concerning humanitarian treatment most clearly show a relationship with human rights law.

Article 75 of the same Additional Protocol provides for the right to life of protected persons in the hands of opposing forces. Specifically, in relation to non-international armed conflicts, Additional Protocol II protects the right to life and the relationship between a State and individuals within its jurisdiction. These examples are not an exhaustive list, rather provide a flavour as to the right to life protections provided for by the key international humanitarian law treaties. Looking beyond these treaty provisions, the right to life is also protected by humanitarian law principles, such as the proportionality, precautionary and necessity principles intended to reduce the loss of life during armed conflict; the principle of distinction; as well as the prohibition of weapons causing preventable and excessive harm and injury.

There are also grave breaches provisions which enhance the protection of the right to life. This all being said, the relationship between international humanitarian law and human rights law is not a simple one. For instance, in addition to international humanitarian law mirroring many aspects of the human right to life, some of the right to life provisions contained in the main human rights instruments, as outlined in the previous section, are also qualified by international humanitarian law.

There are also instances where the two regimes can come into conflict Milanovic, When looking at the significance of international humanitarian law and its relationship with the human right to life it must be recalled that there are significant variations among the relevant treaties that provide for a human rights protection of the right to life.

Therefore, to provide some clarity as to how this relationship differs, dependant on the relevant human rights law regime, it is necessary to examine a number of these systems in turn. Starting with the European Convention on Human Rights ECHR , article 2 prohibits any intentional deprivation of life, except for in instances when "it results from the use of force which is no more than absolutely necessary: a in defence of any person from unlawful violence; b in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c in action lawfully taken for the purpose of quelling a riot", with article 15 2 ECHR permitting for the derogation from the right to life provision in circumstances of "lawful acts of war".

For the derogation to article 2 to be effective, the State's deprivation of life would have to adhere to international humanitarian law and thus the ius ad bellum and ius in bello , which is also required by article 15 1 ECHR, meaning that such acts must not conflict with a State's "other obligations under international law". In this sense, the Court has considered cases of armed conflict as ordinary law enforcement situations, including terrorism related cases, as in the Case of McCann and Others v UK Further indicating this, Judge Bratza, in his partly dissenting opinion in the Agdas v Turkey case, held that it was necessary for the Court to be satisfied that "the use of force was no more than absolutely necessary" , dissenting opinion of Judge Bratza, p.

Therefore, it is evident that States must utilise extreme caution when utilising lethal force, with the Court being of a perspective that there is a necessity component in relation to the deprivation of life; critically, this level of protection is not found in international humanitarian law, with a combatant being a viable target so long as they are not hors de combat Lubel, , pp.

The International Covenant on Civil and Political Rights ICCPR , on the other hand, at article 6 1 notes that "[n]o one shall be arbitrarily deprived of his life", with article 4 2 prohibiting derogations from this under any circumstances. However, although the ICCPR only explicitly mentions the death penalty as an exception to article 6, at article 6 2 , lawful acts of war have also been accepted to be as such.

In the advisory opinion on Nuclear Weapons , the International Court of Justice affirmed that the use of nuclear weapons may amount to a violation of the right to life under the ICCPR, since "the right not arbitrarily to be deprived of one's life applies also in hostilities" ICJ, , para. The Court went on to note that no derogation is permitted from article 4, but continued to state that "[t]he test of what is an arbitrary deprivation of life, however, then falls to be determined by the lex specialis , namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.

Taking a similar approach, in the Las Palmeras case , para. The Commission did not consider the American Convention on its own to be sufficient to govern the right of life in contexts of armed conflict, including for determining when the loss of life is a lawful act of war.

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The Commission viewed international humanitarian law as necessary and authoritative lex specialis and, therefore, as having a key role to play in interpreting the scope of the human right to life in times of armed conflict. It is clear that the right to life is at the core of the body of law comprising international humanitarian law.

Though it is distinct from that of its human rights law counterpart, both legal spheres should be seen as complementary and should not be viewed as mutually exclusive, despite some arguments to the contrary. Each body of law provides its own standards regulating the conduct of the States, with there being instances where international humanitarian law notions of the right to life cross-pollinate into the relevant human rights law regimes, therefore it is essential that an understanding of both regimes is necessary in order to fully comprehend the human right to life.

Discussions and a treaty that followed outlawed the use of chemical weapons. The ICRC continued its efforts, in particular after World War I, to expand the protection of war victims, entering in the new Geneva Convention that covered prisoners of war. However, the ICRC was unable to persuade state governments to adopt an international agreement to protect civilians before the outbreak of World War II, rendering tens millions of people without specific protection.

In its legal sense, the ICRC holds a hybrid status. While it is constituted as an association under Swiss private law, it is equipped with international rights and duties under treaty law - making it an international actor and also a subject of public international law. This means the ICRC holds rights and obligations on the international plane as it holds international legal personality. In art. The International Committee, founded in Geneva in and formally recognized in the Geneva Conventions and by International Conferences of the Red Cross, is an independent humanitarian organization having a status of its own.

It co-opts its members from among Swiss citizens. The International Committee may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an institution.

In agreement with them, it shall cooperate in matters of common concern, such as their preparation for action in times of armed conflict, respect for and development and ratification of the Geneva Conventions, and the dissemination of the Fundamental Principles and international humanitarian law. The ICRC has, since its inception, followed fundamental principles, which were first formulated in their modern wording at the Vienna Conference of the Red Cross and Crescent Movement in The seven general principles are formulated as follows:.

Reaffirms that, in pursuing its mission, the Movement shall be guided by its Fundamental Principles, which are:. Humanity - The International Red Cross and Red Crescent Movement, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavors, in its international and national capacity, to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, cooperation and lasting peace amongst all peoples.

Impartiality - It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavors to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.

Neutrality - In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature. Independence - The Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement.

Voluntary Service It is a voluntary relief movement not prompted in any manner by desire for gain. It must be open to all. It must carry on its humanitarian work throughout its territory. Universality - The International Red Cross and Red Crescent Movement, in which all Societies have equal status and share equal responsibilities and duties in helping each other, is worldwide. Hence, the main tasks of the ICRC are, first, the protection of persons in an armed conflict, namely wounded and sick soldiers, prisoners of war and civilians; second, in particular the protection of detained protected persons, namely through visit programs; third, restoration of family links; fourth, development, interpretation and dissemination of IHL; and fifth, the exercise of a series of rights and duties as provided for in the Conventions, for example the nomination of physicians in the Mixed Medical Commissions.

The tasks can be either conventional, and, by doing so, the ICRC helps in the implementation of legal texts. Otherwise they are extra-conventional, in cases where the ICRC proposes a change in the law through the adoption of a new convention. Actions can have also a hybrid nature. To the extent that the ICRC remains within the boundaries of humanitarian action, it may propose any practical improvement or solution to a humanitarian problem arising during an armed conflict. To this end, the ICRC can propose relief action to a besieged place, despite the fact that this action that goes beyond what the Conventions allow; vice versa, any party to a conflict can profit from the expertise and resources material, legal or practical of the ICRC, which can be contacted at any time in to reduce the human suffering in a conflict.

A non-exhaustive list of examples may be depicted here: 91 million individual parcels were transmitted to prisoners of war during World War II.

Human Rights and Humanitarian Law

These parcels, which were filled with foodstuffs and other necessities, saved the lives of a great many of their recipients; during World War II, a large part of the Greek civilian population, which was living in conditions of starvation, was only able to survive with the help of assistance delivered through the Swedish Red Cross, in cooperation with the ICRC; during the Israeli-Arab war of , delegates of the ICRC crossed the Jordan River on foot in order to transmit personal messages to the other side of the front.

Implementation and Enforcement of the Law. The implementation and enforcement of international law in general and IHL is a problematic field of discussion. The principle of sovereign equality of states, enshrined in art.

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Implementation and enforcement of IHL is often voluntary nature, no compulsory means for the settlement of disputes or for ensuring enforcement of IHL exist. Duties do exist under IHL, but sanctions for the failure to abide by the duties are sparse. However, the proliferation of international criminal courts and tribunals, such as the International Criminal Tribunal for the Former Yugoslavia as well as those of the International Criminal Tribunal for Rwanda and the International Criminal Court aim to ensure better adherence to the laws of armed conflict.

IHL is no more a field of international law that can afford to be left without any consequences in case of breaches, no means of enforcement or accountability, but rather as a dynamic source of obligations for both States and individuals in their conduct in armed conflicts, both international and non-international. Attempts to implement and enforce IHL must be achieved through measures in wartime and peacetime.

Australia can be used as an example for the implementation of IHL in peacetime: here the Geneva Conventions Act was implemented, which gives domestic legal effect to the Geneva Conventions. Moreover, in addition to enabling domestic legislation domestically, parties to the Conventions and Protocols are obliged to ensure that IHL is disseminated through the population through the dissemination of military manuals which outline the laws of armed conflict applicable to that State; integration of IHL into the rules of engagement; and the provision of regular training in IHL for the armed forces.

IHL instruction shall also be given to police forces of a State. Also, IHL must be disseminated as widely as possible throughout civil society. This can be fulfilled through the teaching of IHL in universities and schools, as well as through public education programs. In time of war, the need to respect and ensure respect for IHL is of utmost importance. This principle is expressed in the Geneva Conventions in Common art. The ICRC, as outlined earlier, plays an important role here. This Commission was created in accordance with art. The Commission is a permanent international body tasked with investigating allegations of grave breaches and other serious violations of IHL.

Seventy-two States have accepted the competence of the Commission, which comprises 15 individuals elected by States. As of April , the Commission is yet to be called on. Finally, two mechanisms exist to hold states and individuals accountable for IHL violations: on the one hand, the rules on State responsibility for State accountability and international criminal law for individual accountability.

The rules on State responsibility contain some provisions relevant to IHL, namely that a State is strictly responsible for all acts committed by members of its armed forces. For example, reprisals against protected persons and goods, are prohibited. Under the law of State responsibility, there is a general obligation to pay compensation.

International criminal law then again criminalizes categories of acts known as crimes against humanity and genocide. Crimes against humanity are understood as crimes committed systematically, in accordance with an agreed plan, by either a State or organized group. The idea of crimes against humanity emerged from the Nuremberg and Tokyo Trials convened after the Second World War and have evolved to be part of customary international law. The principle of universal jurisdiction allows any State to bring to trial a person or persons accused of committing certain crimes against international law, regardless of the location of commission of the crime, or the nationality of the victim or perpetrator.

With the system of universal jurisdiction, no violation of IHL shall remain in impunity. If a State is unwilling to prosecute an offender within its territory, the alleged offender is to be handed out to any Party to the Convention who can make out a prima facie case. In any case, global politics is an impeding factor in the implementation and enforcement of IHL. Because it is in the Security Council or other international fora, or in the domestic setting, consensus-building efforts and political mediation around accountability and enforcement is necessary.

International human rights law

The significant progress through the development of international norms, legal frameworks and institutions for human rights and humanitarian protection demonstrates, does not mean that enforcement comes automatic. Persistent efforts by individuals, civil society organizations, states and the international community is of paramount importance to ensure that commonly held norms are enforced in practice. The ICRC provides an in-depth discussion on these issues here. The very same principle was relied upon in , when NATO allies intervened in Kosovo without United Nations Security Council mandate under Chapter VII to prevent ethnic cleansing by Serb forces, an incident in history that is of critical academic nature and penetrates the discussion into contemporary times, for more information here.

But this very incident proved to be the stepping stone for the elaboration and invention of the R2P concept. In light of the tragedies in Rwanda, the Balkans and specifically Kosovo in the s, the international community ignited the discussion if, how and when the world community can intervene in moments when the human rights of citizens of a particular country are grossly and systematically violated.

The crucial question was if States have unconditional sovereignty over their own affairs or whether the international community has the right, or even the obligation, to intervene in a country for humanitarian purposes. The African Union AU later endorsed the idea and put in its founding charter of with art.

Southern leadership at the World Summit was decisive to this end. Argentina, Chile, Guatemala, Mexico, Rwanda, and South Africa, were some of the influential governments insisting on a meaningful commitment to the Responsibility to Protect. And it is also a responsibility for prevention of these crime.