You are on page 1of 14

INTRODUCTION

The Geneva Conventions set standards in international law for humanitarian


treatment of wounded soldiers, prisoners of war and civilians during war and
conflict and military occupation. They also recognize the human rights of
journalists. The Geneva Conventions comprise four treaties and three additional
protocols, which together make up international humanitarian law. The first three
treaties were adopted between 1864 and 1931. They deal with the humane
treatment of wounded and sick soldiers, sailors and prisoners of war. The fourth
treaty was drafted after the Second World War. It confirms and expands the three
previous treaties and includes the protection of civilians. In 1977 two additional
protocols were adopted, increasing protections and in 2005, a third protocol was
added establishing an additional protective sign for medical services. The four
conventions and their protocols are legally binding. Members of the armed forces
who violate the rights in the conventions can be found guilty of war crimes.

What Are Human Rights?

Human rights are rights inherent to all human beings, regardless of race, sex,
nationality, ethnicity, language, religion, or any other status. Human rights include
the right to life and liberty, freedom from slavery and torture, freedom of opinion
and expression, the right to work and education, and many more. Everyone is
entitled to these rights, without discrimination.

International Human Rights Law

International human rights law lays down the obligations of Governments to act in
certain ways or to refrain from certain acts, in order to promote and protect human
rights and fundamental freedoms of individuals or groups.

One of the great achievements of the United Nations is the creation of a


comprehensive body of human rights law—a universal and internationally
protected code to which all nations can subscribe and all people aspire. The United
Nations has defined a broad range of internationally accepted rights, including
civil, cultural, economic, political and social rights. It has also established
mechanisms to promote and protect these rights and to assist states in carrying out
their responsibilities.

The foundations of this body of law are the Charter of the United Nations and the
Universal Declaration of Human Rights, adopted by the General Assembly in 1945
and 1948, respectively. Since then, the United Nations has gradually expanded
human rights law to encompass specific standards for women, children, persons
with disabilities, minorities and other vulnerable groups, who now possess rights
that protect them from discrimination that had long been common in many
societies.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR)is a milestone document in
the history of human rights. Drafted by representatives with different legal and
cultural backgrounds from all regions of the world, the Declaration was proclaimed
by the United Nations General Assembly in Paris on 10 December
1948 by General Assembly resolution 217 A (III) as a common standard of
achievements for all peoples and all nations. It sets out, for the first time,
fundamental human rights to be universally protected. Since its adoption in 1948,
the UDHR has been translated into more than 501 languages – the most translated
document in the world - and has inspired the constitutions of many newly
independent States and many new democracies. The UDHR, together with
the International Covenant on Civil and Political Rights and its two Optional
Protocols (on the complaints procedure and on the death penalty) and
the International Covenant on Economic, Social and Cultural Rights and
its Optional Protocol, form the so-called International Bill of Human Rights.

HUMAN RIGHTS AND ARMED CONFLICT

It is often during armed conflicts that human rights are infringed upon the most.
Therefore, over the years, experts have focused much attention on the formulation
of instruments aimed at alleviating human suffering during war and conflict.
Today, three areas of modern international law attempt to provide protection to
victims of war: human rights law, refugee law and humanitarian law. While these
fields are closely linked, they need to be distinguished systematically. Refugee law
has been discussed in Part IV. This chapter focuses on international humanitarian
law, which differs from human rights law in that it concentrates on specified
conflict-related acts and does not give rise to individual claims.

Humanitarian law applies in armed conflict, restricting the actions of warring


parties, providing for protection and humane treatment of persons who are not
taking part or can no longer take part in the hostilities. Like international human
rights law, humanitarian law protects the lives and dignity of individuals,
prohibiting torture or cruel treatment, prescribing rights for persons subject to a
criminal justice procedure, prohibiting discrimination and setting out provisions for
the protection of women and children. In addition, humanitarian law deals with the
conduct of hostilities, combatant and prisoner of war status and the protection of
the Red Cross, Red Crescent and Red Crystal emblems.

A distinction is generally made between the law designed to protect military and
civilian victims of armed conflicts on the one hand, and the laws governing the
way war is waged, on the other.

In recent years humanitarian intervention, the maintenance of peace and the


protection of collective security, as well as the protection of cultural property, have
received increased attention in relation to humanitarian and human rights law. The
last mentioned issue has a place in Additional Protocol I to the Geneva
Conventions in Chapter III dealing with civilian objects.
A. Relationship between human rights and humanitarian law

The relationship between human rights law and the law of armed conflicts is easily
explained in a schematic way. Four different situations may apply to a country at a
specific point in time. A distinct set of international standards is applicable to each
of the four situations identified.

The level of protection afforded by human rights law is the highest in ‘normal’
situations, i.e., in times of peace, and may diminish during times of non-
international armed conflict or international conflict.

International humanitarian law is only applicable when there is a non-international


armed conflict (common Article 3 to the Geneva Conventions and Protocol II
apply) and an international armed conflict (the four Geneva Conventions and
Protocol I apply).

International humanitarian law is specifically designed to regulate the contact of


parties to an armed conflict. Its provisions already take into account the principles
of humanity, military necessity and proportionality and therefore do not allow for
derogation. These norms that apply in all circumstances are spelled out in the
common Article 3, included in each of the Geneva Conventions, which reads:

In the case of armed conflict not of an international character occurring in the


territory of one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria. To this end the following
acts are and shall remain prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons:
a. Violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
b. Taking of hostages;
c. Outrages upon personal dignity, in particular humiliating and degrading
treatment;
d. The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognised as indispensable by civilised peoples.
2. The wounded and sick shall be collected and cared for. An impartial
humanitarian body, such as the International Committee of the Red Cross, may
offer its services to the Parties to the conflict. [...] While human rights law provides
for derogation of some rights in times of emergency, it is important to note that
several human rights may not be derogated from under any circumstance (see
I§2.B).

1. INTERNATIONAL ARMED CONFLICT

Broadly speaking, international armed conflicts involve different states whereas


non-international armed conflicts involve government and rebel forces within the
territory of one state. This distinction is not always applicable. In the wake of the
emergence of numerous new states - as a result of sometimes violent
decolonisation - the international community recognised that certain ‘internal’
conflicts should be treated as if they were international armed conflicts. As a result,
‘wars of national liberation’ were included under Protocol I of the Geneva
Conventions. This means that participants in such wars are granted the status of
prisoners of war if captured (see below).

Protocol I to the 1949 Geneva Conventions (1977) relates to international armed


conflicts. The international law regarding these types of conflicts is less related to
the human rights discussed. Nevertheless, Article 75 of Protocol I stipulates certain
rights for individuals while Article 1 refers explicitly to the Martens clause
(introduced at the 1899 Hague Peace Conference). The Martens clause states that
in cases which are not covered by the above-mentioned Conventions and their
Protocols, civilians and combatants ‘remain under the protection and authority of
the principles of international law derived from established custom, from the
principles of humanity and from the dictates of public conscience’. It should be
noted that expressions such as ‘principles of humanity’ and ‘public conscience’
have not yet been defined in terms of human rights.

Article 75 of Protocol I regulates the rights of individuals who find themselves in


the power of a party to a conflict of which they are not subjects. Article 75 could
be regarded as a mini-convention on the protection of basic human rights during
international armed conflicts. In fact, the article’s authors carefully studied all the
material provisions of the ICCPR and distilled from it the regulations they
considered most important and which can be expected to be observed, even in
times of war. Paragraph 1 of Article 75 contains the same prohibition of
discrimination as Article 2 ICCPR. 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:
(a) Violence to the life, health or physical or mental well-being of persons, in
particular:
• murder,
• torture of all kinds, whether physical or mental,
• corporal punishment,
• mutilation;
(b) Outrages upon personal dignity, in particular humiliating and degrading
treatment, enforced prostitution and any form of indecent assault;
(c) The taking of hostages;
(d) Collective punishments;
(e) Threats to commit any of the foregoing acts.

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.

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.

T]he law of war draws a distinction between the armed forces and the peaceful
populations of belligerent nations and also between those who are lawful and
unlawful combatants. 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.
The spy who secretly and without uniform passes the military lines of a belligerent
in time of war, seeking to gather military information and communicate it to the
enemy, or an enemy combatant who without uniform comes secretly through the
lines for the purpose of waging war by destruction of life or property, are familiar
examples of belligerents who are generally deemed not to be entitled to the status
of prisoners of war, but to be offenders against the law of war subject to trial and
punishment by military tribunals.
2. INTERNAL ARMED CONFLICTS

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 1960s and 1970s, the 1977
Diplomatic Conference decided to extend and elaborate this article in Protocol II to
the 1949 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. They require behaviour that respects the human rights and
dignity of civilians in a conflict situation. Article 4 requires the parties to respect
the person, honour, convictions and religious practices of all persons not directly
involved or no longer taking part in the hostilities, and states that ‘they shall in all
circumstances be treated humanely without any adverse distinction’. The
provisions protecting children are an important addition. It is notable that the
minimum age for military service has been set at 15 years of age.

Article 5 prescribes special protection to persons whose freedom is limited in


connection with the armed conflict. Two categories of people are defined: people
whose freedom of movement is restricted in some way (for example because they
live in a cut-off area) enjoying only limited protection; and internees or prisoners
who enjoy full protection. With respect to these detained or interned persons,
Article 5 distinguishes two types of obligations: a) absolute minimum obligations
in relation to the protection of the sick or wounded and the right to individual or
collective help and to practice religion. As far as the provision of food and drink,
hygienic facilities and working conditions are concerned, the same criteria apply as
for the local population; and b) obligations that must be taken into account within
the limitations of what is feasible. These relate to the personal circumstances of
female detainees and prisoners, the distance to the battlefield, the right to medical
treatment and protection against certain forms of medical practices or negligence.
The latter obligation is an absolute minimum requirement according to the
Explanatory Memorandum to the approving act.

Article 6 contains a number of fair trial rules that are also found in Articles 14 and
15 ICCPR. If, for example, a party that is in rebellion decides to hold trials, it must
create a judicial organisation for that purpose. As long as the law cannot be carried
out by a court in accordance with a reasonable procedure, no judgements may be
passed or sentences carried out. Article 6 seems to allow for the creation of courts
for the duration of the conflict, provided their independence is guaranteed. In other
words, they must not be subject to external controls and must be impartial. Similar
cases must be dealt with in the same manner. Moreover, Article 6 recommends that
amnesty be granted on the largest scale possible upon cessation of the hostilities.

Protocol II applies to anyone who is wounded, sick or shipwrecked and stipulates


that such people must be cared for and protected. It also lays down the duty to
protect medical personnel, without any distinction between military personnel and
civilians. It likewise applies to medical units and means of transport and to the
discharge of medical duties in a general sense. If medical units are abused, their
protection ceases. This applies to both military and civilian medical units.

Finally, Article 6 stipulates that civilian populations may not be the object of
attacks. Article 13 sets out the principle of distinction, specifying that attacks on
groups of the population and individual citizens are prohibited in all circumstances,
as are threats of violence. The enforced movement of civilian populations is also
forbidden, unless their safety is at risk or urgent military interests require them to
be moved.

Organisations such as the ICRC can offer their services, but they can only take
action with the consent of the state on whose territory the conflict is taking place.
CONCLUSION

The laws which regulate warfare are a reflection of their time and the structure of
society, its political and social order, the prevailing economic system and the
dominant moral and political discourses on war and law. Transformation and
adaptation, not only to new circumstances and factual demands of war and warfare
but also to the perceptions and expectations of society at large, are characteristic of
the law. Historically, the law of armed conflict has gone through a series of
transformations from medieval customary rules to the rational balancing of
military advantage and human suffering in the Hague law, and the humanitarian
advocacy tradition in the Geneva law, which finally allowed the creation of
international humanitarian law in 1949. The debate on human rights in armed
conflict is the response of our times to the dynamics of war and law.
With its mix of charity as an expression of faith and chivalry as a reflection of
class and professionalism, and the rational and calculating positivism and
philanthropic activism of the nineteenth century, the law of armed conflict is
informed by a strong and vibrant humanitarian legacy; yet it does not adequately
reflect the cosmopolitan views of the twenty-first century. This does not question
its importance as an indispensible legal framework which mitigates the
consequences of armed conflicts in all their forms. The debate on human rights in
armed conflict is, or should be, a debate on the interplay of human
rights and humanitarian law, and not an attempt to relegate international
humanitarian law from the battlefield as the result of a competition in which one
legal regime trumps the other. Today, the notion of “humanitarian” in humanitarian
law can be understood properly only with reference to the idea, language, law and
policy of human rights as the dominant moral and legal discourse of our times.
Since the adoption of the Universal Declaration of Human Rights in 1948,
humanity is no longer a grace but a right.