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On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
Theodor Meron*
Affiliation:
New York University School of Law
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American Journal of International Law , Volume 77 , Issue 3 , July 1983 , pp. 589 - 606
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Copyright © American Society of International Law 1983

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References

1 See generally Meyrowitz, , Le Droit de la guerre et les droits de I’homme, 88 Rev. Droit Public & Science Politique en France & à l’Etranger 1059 (1972)Google Scholar; Draper, , Humanitarian Law and Human Rights, 1979 Acta Juridica 193 Google Scholar [hereinafter cited as Draper, Humanitarian Law]; Draper, , The Relationship between the Human Rights Regime and the Law of Armed Conflicts, 1 ISR. Y.B. Hum. Rights 191 (1971)Google Scholar [hereinafter cited as Draper, Relationship]; Partsch, , La Protection internationale des droits de I’homme et les Conventions de Geneve de la Croix-Rouge, 26 Rev. Int’lE Droit Compare 73 (1974)Google Scholar; Aldrich, , New Life for the Laws of War, 75 AJIL 764 (1981)CrossRefGoogle Scholar; Robertson, , Human Rights as the Basis of International Humanitarian Law, in Proceedings of the International Conference on Humanitarian Law 55 (San Remo 1970)Google Scholar; Calogeropoulos-Stratis, A., Droit humanitaire et droits de l’homme: La Protection de la personne en période de conflit armé (1980)Google Scholar; Bothe, M., Partsch, K., & Solf, W., New Rules for Victims of Armed Conflicts (1982)Google Scholar. For a list of the principal humanitarian conventions and a discussion of the scope of humanitarian law, see Partsch, , Humanitarian Law and Armed Conflict [Instalment], 3 Encyclopedia of Public International Law 215 (Bernhardt, R. ed. 1982)Google Scholar.

2 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, 16 ILM 1391 (1977). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature Dec. 12, 1977, id. at 1442.

3 See UN Docs. A/36/245 (1981), A/37/145 (1982), and A/37/746 (1982) on New International Humanitarian Law. See also GA Res. 36/136, 36 UN GAOR Supp. (No. 51) at 185, UN Doc. A/36/51 (1981); GA Res. 37/201, UN Doc. A/RES/37/201 (1982).

4 On the importance of procedures of implementation, see the concurring opinion of Justice Douglas in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 179 (1951).

5 Baxter, , Some Existing Problems of Humanitarian Law, in The Concept of International Armed Conflict: Further Outlook 1 (Proceedings of the International Symposium on Humanitarian Law, Brussels 1974)Google Scholar.

6 Convention Respecting the Laws and Customs of War on Land, with Annex of Regulations, Oct. 18, 1907, 36 Stat. 2277, TS No. 539.

7 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31. Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85. Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. III), Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135. Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

8 Baxter, supra note 5, at 2.

9 Information supplied by the International Committee of the Red Cross, January 1983.

10 660 UNTS 195; Human Rights International Instruments: Signatures, Ratifications, Accessions, etc. 1 July 1982, UN Doc. ST/HR/4/Rev.4, at 18–19 (1982) [hereinafter cited as Human Rights International Instruments].

11 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); Human Rights International Instruments, supra note 10.

12 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); Human Rights International Instruments, supra note 10.

13 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 59, UN Doc. A/6316 (1966); Human Rights International Instruments, supra note 10.

14 78 UNTS 277; Human Rights International Instruments, supra note 10.

15 GA Res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46 (1979); Human Rights International Instruments, supra note 10.

16 See text accompanying note 8 supra. Judgment of the International Military Tribunal for the Far East of 1948, 15 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 13 (1949); Judgment of the International Military Tribunal for the Trial of German Major War Criminals, CMD. 6964, Misc. No. 12, at 64–65 (1946); Baxter, supra note 5, at 2; U.S. Dep’t of the Army, Field Manual Fm 27–10, The Law of Land Warfare 6 (1956); 2 U.S. Dep’t of the Army, Pamphlet 27-161-2, International Law 249 (1962).

17 Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, UN Doc. A/7720, at 22 (1969) [hereinafter cited as 1969 Report].

18 Information supplied by the International Committee of the Red Cross, January 1983.

19 Thus, the new rules with regard to guerrilla fighters, Article 44, paragraphs 3 and 4, “will become binding upon those States, and those States alone, which ratify the Protocol [I].” Kalshoven, , Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974–1977, 8 Neth. Y.B. Int’l L. 107, 133 (1977)Google Scholar.

20 Restatement of Foreign Relations Law of the United States (Revised) §702 (Tent. Draft No. 3, 1982). See generally D’Amato, , The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110 (1982)CrossRefGoogle Scholar.

21 For a survey of the philosophical sources and modern theories of human rights, see Shestack, , The Jurisprudence of Human Rights, in 1 Human Rights in International Law: Legal and Policy Issues 69, 75–98 (Meron, T. ed. 1983)Google Scholar.

22 See generally Draper, Humanitarian Law, supra note 1, at 199–201; Veuthey, M., Guérilla et droit humanitaire 338–47 (1983)Google Scholar; Best, G., Humanity in Warfare 157–215 (1980)Google Scholar.

23 Draper, Humanitarian Law, supra note 1, at 201.

24 This clause reads as follows:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

See generally Strebel, Martens’ Clause [Instalment], 3 Encyclopedia, supra note 1, at 252.

25 GA Res. 217A, UN Doc. A/810, at 71 (1948).

26 Schindler, , Human Rights and Humanitarian Law, 31 AM. U.L. Rev. 935, 937 (1982)Google Scholar.

27 With regard to the right of self-determination, see Art. 1(4), Protocol I.

28 See Art. 72, Protocol I; Preamble, Protocol II. See generally Schindler, supra note 26.

29 For a detailed comparison, see 1969 Report, supra note 17; and Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, UN Doc. A/8052 (1970) [hereinafter cited as 1970 Report].

30 1970 Report, supra note 29, at 13.

31 Id. at 101.

32 Article 4 reads as follows:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

33 Schindler, supra note 26, at 939. For a different interpretation, see Buergenthal, , To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bill of Human Rights 72, 74–77 (Henkin, L. ed. 1981)Google Scholar.

34 See generally Meron, , Applicability of Multilateral Conventions to Occupied Territories, 72 AJIL 542 (1978)CrossRefGoogle Scholar.

35 See Solf, , Human Rights in Armed Conflict: Some Observations on the Relationship of Human Rights Law to the Law of Armed Conflict, in World in Transition 41, 44 (Han, H. ed. 1979)Google Scholar; Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 138 (Pictet, J. ed. 1952)Google Scholar.

36 Art. 6, 1 Bevans 7, 10; see Solf, supra note 35, at 43.

37 See generally Aldrich, supra note 1, at 770–71; Kalshoven, supra note 19, at 122.

38 See generally Kalshoven, supra note 19, at 121–33; Aldrich, supra note 1, at 771; Cassese, , A Tentative Appraisal of the Old and the New Humanitarian Law of Armed Conflict, in The New Humanitarian Law of Armed Conflict 461, 469 (Cassese, A. ed. 1979)Google Scholar. It has been observed that the duty to accord prisoner-of-war status to captured members of the armed forces of an adversary applies to the armed forces of a people

engaged against a High Contracting Party in an armed struggle for self determination within the meaning of Art. 1 (4), provided, however, that the struggle qualifies under Art. 1 (4) as an international armed conflict, and provided also that the authorities of the movement have made the declaration required by Art. 96(3).

M. Bothe, K. Partsch, & W. Solf, supra note 1, at 237–38.

59 See Solf, supra note 35, at 44. It has been observed that although the words “national origin” in Article 75 do not refer to nationality but to ethnic group, nationality should be regarded as “an ‘other status’ or as a status based ‘on any similar criteria.’ This would mean that the list of banned criteria would not exclude the Parties’ own nationals from the enjoyment of the protection provided for by this Article.” M. Bothe, K. Partsch, & W. Solf, supra note 1, at 458.

40 M. Bothe, K. Partsch, & W. Solf, supra note 1, at 459–60.

41 Id. at 460 (quoting a statement by the Canadian delegation).

42 Commentary on the Geneva Conventions of 12 August 1949: The Geneva Convention Relative to the Protection of Civilian Persons in Time of War 40 (Uhler, O. & Coursier, H. eds. 1958)Google Scholar.

43 But it is “possible that certain offences may be regarded as more serious or less serious according to whether they have been committed by citizens of the country concerned or by aliens.” Ibid.

44 Draper, Humanitarian Law, supra note 1, at 202. Concerning the importance of Article 3, see Robertson, supra note 1, at 60–61.

45 See text accompanying note 39 supra. For the “fundamental guarantees” provision of Protocol II, see Article 4 thereof.

46 See Art. 6, Protocol II.

47 Dinstein, , The International Law of Inter-State Wars and Human Rights, 7 Isr. Y.B. Hum. Rights 139, 148 (1977)Google Scholar [hereinafter cited as Dinstein, International Law].

48 See Dinstein, Human Rights in Armed Conflict: International Humanitarian Law, in 2 Human Rights in International Law, supra note 21, at 345, 350–54 [hereinafter cited as Dinstein, Human Rights].

49 See Schindler, supra note 26, at 939–40.

50 See, e.g., 1969 Report, supra note 17; and 1970 Report, supra note 29, Ann. I.

51 The question of derogations is discussed in part IV, “Derogations,” infra.

52 Aldrich, , Human Rights and Armed Conflict: Conflicting Views, 67 Asil Proc. 141, 142 (1973)Google Scholar.

53 See, e.g., id. at 143–44; Robertson, supra note 1, at 61.

54 Baxter, supra note 5, at 2.

55 Art. 1(4), Protocol I.

56 For a discussion and a critique of this delimitation, see Cassese, supra note 38, at 467–68. Cassese observes that the extension does not apply to wars of liberation conducted by peoples or minorities except where the regimes against which a struggle is waged are colonial or racist, or in case of foreign occupation.

57 For a detailed discussion, see 1969 Report, supra note 17; and 1970 Report, supra note 29.

58 Internationalized internal armed conflicts will not be considered in this Note. See generally Schindler, , International Humanitarian Law and Internationalized Internal Armed Conflicts, Int’l Rev. Red Cross, No. 230, Sept.–Oct. 1982, at 255 CrossRefGoogle Scholar.

59 Draper, Humanitarian Law, supra note 1, at 202.

60 See, e.g., Franck, & Fairley, , Procedural Due Process in Human Rights Fact-Finding by International Agencies, 74 AJIL 308 (1980)CrossRefGoogle Scholar.

61 See generally Buergenthal, supra note 33, at 72; Higgins, , Derogations under Human Rights Treaties, 48 Brit. Y.B. Int’l L. 281 (1976–77)Google Scholar; Hartman, , Derogation from Human Rights Treaties in Public Emergencies, 22 Harv. Int’l L.J. 1 (1981)Google Scholar; Green, , Derogation of Human Rights in Emergency Situations, 16 Can. Y.B. Int’l L. 92 (1978)Google Scholar.

62 1969 Report, supra note 17, at 13; and 1970 Report, supra note 29, at 90–91.

65 Buergenthal, supra note 33, at 79.

64 Questiaux, Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, UN Doc. E/CN.4/Sub.2/1982/15, at 26–32 (1982).

65 See, e.g., Views of the Human Rights Committee under article 5(4) of the Optional Protocol concerning Communication No. R.8/34, Report of the Human Rights Committee, 36 UN GAOR Supp. (No. 40) at 130, 132–33, UN Doc. A/36/40 (1981); Rev. Int’l Comm’n Jurists, No. 28, June 1982, at 46–48.

66 Art. 15, reprinted in Basic Documents on Human Rights 242 (2d ed. I. Brownlie 1981).

67 Art. 27, reprinted in id. at 391, 9 ILM 673 (1970).

68 See text accompanying note 20 supra.

69 Apart from the proposition that states may not derogate from norms that have attained the status of jus cogens, Sohn suggests that derogations can only be made to the extent strictly required by the exigencies of the situation, in conformity with a state’s obligations under international law, and not in violation of the prohibition of discrimination solely on the ground of race, color, sex, language, religion, or social origin. He also suggests that “some human rights cannot be suspended at all, as several international instruments specify that there can be no derogations” from certain basic human rights. Sohn, Fundamental Guarantees: Human Rights, in Proceedings of the Seminario Interamericano Sobre Seguridad del Estado, Derechos Humanos y Derecho Humanitario (Inter-American Institute of Human Rights) (forthcoming). Mme. Questiaux has argued:

[E]ach State, is bound only by the instruments that it has ratified. But the idea of a basic minimum, from which no derogation is possible, is present in a sufficient number of instruments to justify our approaching the matter by reference to a general principle of law recognized in practice by the international community, which could, moreover, regard it as a peremptory norm of international law within the meaning of article 53 of the 1969 Vienna Convention on the Law of Treaties. . . .

Questiaux, supra note 64, at 19 (footnote omitted).

See also Hartman, supra note 61, at 12 (who suggests that Article 4 does not “codify any customary rule”); Higgins, supra note 61, at 282 (who points out that “neither the wording of the various human rights instruments nor the practice thereunder leads to the view that all human rights are jus cogens”).

70 Draper, Relationship, supra note 1, at 198.

71 Ibid.

72 MacBride, , Human Rights in Armed Conflicts, 9 Rev. Droit Pénal Militaire & Droit de la Guerre 373, 383 (1970)Google Scholar.

73 Meron, T., Investment Insurance in International Law 75 (1976)Google Scholar.

74 Civil Strife Addendum to Section 1.07 of OPIC contract of insurance (No. 12–70 Rev.), supplied by OPIC. See also Overseas Private Investment Corp. Topics, Spring 1983, at 4.

75 See Baxter, supra note 5, at 5, 7. For suggestions regarding formulation of core principles of humanitarian law, see M. Veuthey, supra note 22, at 373–78. It may be noted that in 1975 the President of the Swiss Red Cross proposed that a declaration be drawn up “setting out in a condensed form the fundamental rules of humanitarian law, and rendering the lofty ideas underlying humanitarian law clearly discernible and easily understandable.” Int’l Rev. Red Cross, No. 205, July-August 1978, at 247. A draft of such “fundamental rules of humanitarian law applicable in armed conflicts” was prepared in 1977 at the San Remo Institute of Humanitarian Law by a working group composed of experts from the ICRC, the League of the Red Cross Societies, and National Red Cross Societies. These rules “state in a condensed form the very essence of international humanitarian law applicable in armed conflicts.” Ibid. The purpose of the text, which consists of seven rules, was to facilitate the dissemination of international humanitarian law. For the rules, see id. at 248–49.

76 See, e.g., Meyrowitz, supra note 1, at 1081–84.

77 1969 Report, supra note 17, at 12. Article 29(2) of the Universal Declaration reads as follows:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

78 As regards the right to life, both the humanitarian instruments and the Political Covenant attempt to regulate the conditions under which capital punishment may be imposed, but neither provides an absolute guaranty of the right to life. In the context of retribution, the right to life is nonderogable under the Political Covenant. As regards humanitarian instruments, provisions relevant to the right to life in international armed conflicts are contained in Articles 100–101 of Geneva Convention III and Articles 68 and 75 of Geneva Convention IV. As regards protection of the right to life in international armed conflicts by Article 6 of the Political Covenant, a UN study suggests that the text of Article 6,

corroborated by its legislative history, demonstrates that article 6 . . . would not guarantee the right to life as an absolute right without exceptions. . . . [T]o the extent that in present international law “lawful acts of war” are recognized, such lawful acts are deemed not to be prohibited by article 6 . . . if they do not violate internationally recognized laws and customs of war.

1970 Report, supra note 29, at 104; see also id. at 98–101; 37 UN GAOR Supp. (No. 40) at 93, UN Doc. A/37/40 (1982) (general comments of the Human Rights Committee). Death resulting from “lawful acts of armed conflict” might thus not be considered as arbitrary under Article 6 of the Political Covenant.

As regards protection of the right to life in armed conflicts not of an international character, which is qualified and not absolute, see common Article 3(lXa) and 3(l)(d) of the four Geneva Conventions. See also Dinstein, The Right to Life, Physical Integrity, and Liberty, in The International Bill of Rights, supra note 33, at 114, 120.

79 The Council of Europe has recently adopted the text of Protocol No. 6 to the European Convention, concerning the abolition of the death penalty. Council of Europe Doc. H (83) 3 (1983). Under Articles 1 and 2, the death penalty shall be abolished, except that states may make provision in their laws for the death penalty in respect of acts committed in time of war or of imminent threat of war. “[O]ther public emergency threatening the life of the nation” is thus excluded. And Article 3 provides that “[n]o derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.”

A draft resolution proposed in the UN Human Rights Commission by Canada, Peru, and Senegal, which follows upon the Questiaux report, requests that the ECOSOC:

authorize the Sub-Commission to appoint one of its members to undertake a closer study of the advisability of strengthening and extending the inalienability of the rights enumerated in article 4, paragraph 2 of the International Covenant on Civil and Political Rights, with due consideration being given to national legislations as well as to relevant international and regional conventions and to submit the results of this study to the Commission at its fortieth session.

UN Doc. E/CN.4/1983/L.29 (1983).

Unfortunately, this version was greatly weakened in the revised draft resolution, UN Doc. E/CN.4/1983/L.29/Rev.l (1983), which was adopted on Feb. 22, 1983 (as Res. 1983/18), UN Doc. E/CN.4/1983/L.10/Add.2, at 6 (1983).

80 For the value of declarations, see UN Doc. A/36/245, Annex, at 3 (1981). See generally Schachter, , Alf Ross. Memorial Lecture: The Crisis of Legitimation in the United Nations, 50 Nordisk Tidsskrift Int’l Ret 3 (1981)Google Scholar; and his The Evolving International Law of Development, 15 Colum. J. Transnat’l L. 1, 3–6 (1976).

81 E.g., in Argentina and Poland. See Int’l Rev. RED CROSS, No. 230, Sept.-Oct. 1982, at 289, 299, 304. It should be observed that the four Geneva Conventions contain an identical article on the right of “initiative” of the ICRC. See, e.g., Article 10 of Geneva Convention IV, which reads as follows:

The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and for their relief.