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International Humanitarian Law and Human Rights Law

Published online by Cambridge University Press:  13 January 2010

Louise Doswald-Beck  and
Sylvain Vité
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Extract

International humanitarian law is increasingly perceived as part of human rights law applicable in armed conflict. This trend can be traced back to the United Nations Human Rights Conference held in Tehran in 1968 which not only encouraged the development of humanitarian law itself, but also marked the beginning of a growing use by the United Nations of humanitarian law during its examination of the human rights situation in certain countries or during its thematic studies. The greater awareness of the relevance of humanitarian law to the protection of people in armed conflict, coupled with the increasing use of human rights law in international affairs, means that both these areas of law now have a much greater international profile and are regularly being used together in the work of both international and non-governmental organizations.

Type
Humanitarian Law and Human Rights
Information
International Review of the Red Cross (1961 - 1997) , Volume 33 , Special Issue 293: Humanitarian law and Human Rights , April 1993 , pp. 94 - 119
Copyright
Copyright © International Committee of the Red Cross 1993

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References

1 Resolution XXIII “Human Rights in Armed Conflicts” adopted by the International Conference on Human Rights, Tehran, 12 May 1968.

2 For an interesting survey of these customs from different parts of the world, see Part 1 of International Dimensions of Humanitarian Law, UNESCO, Paris, Henry Dunant Institute, Geneva, 1988.Google Scholar

3 See, for example, L. Oppenheim, International Law, Volume II, Disputes, War and Neutrality, Seventh edition, Longmans and Green, London, 1952, pp. 226–227.Google Scholar

4 For a good summary of these doctrines, see Bailey, S. Prohibitions and Restraints in War, Oxford University Press, 1972, Chapter 1.Google Scholar

5 There are frequent references in the preambles of nineteenth century humanitarian law instruments to civilization requiring restraints in warfare, for example, the Declaration of St. Petersburg of 1868 to the effect of prohibiting the use of certain projectiles in war time: “Considering that the progress of civilization should have the effect of alleviating as much as possible the calamities of war…”; 1899 Hague Convention II with Respect to the Laws and Customs of War on Land: “Animated by the desire to serve… the interests of humanity and the ever increasing requirements of civilization…”.

6 Instructions for the Government of Armies in the Field, 24 04 1863 Google Scholar, prepared by Francis Lieber during the American Civil War, and promulgated by President Lincoln as General Orders No 100. Reproduced in Schindler and Toman, eds., The Laws of Armed Conflicts, Martinus Nijhoff Publishers, Dordrecht, Henry Dunant Institute, Geneva, 1988.

7 Needless to say, this punishment would these days be a violation of the right to fair trial of the accused, which is reflected in Article 75 of 1977 Protocol I and equally applies to the treatment of a party's own soldiers.

8 U.S. Air Force Law of War Manual. There are similar definitions published in the United States Manual FM 27–10 and in the German Manual ZDv 15/10.

9 ZDv 15/10.

10 For a very good analysis of the concept of military necessity, see Rauch, E., “Le concept de nécessité militaire dans le droit de la guerre”, Revue de droit pénal militaire et de droit de la guerre, 1980, p. 205.Google Scholar

11 See Schwarzenberger, G., International Law as applied by International Courts and Tribunals, Volume II, The Law of Armed Conflict, Stevens, London, 1968, pp. 10–12 Google Scholar. These are not legal categories, but rather a conceptual way of grouping the different methods used for this purpose.

12 ibid, at pp. 15–16.

13 Article 15, First Geneva Convention of 1949.

14 Article 11, 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

15 Article 4 of the International Covenant on Civil and Political Rights, 1966; Article 15 of the European Convention on Human Rights, 1950; Article 27 of the American Convention on Human Rights, 1969. Curiously, the African Charter on Human and Peoples' Rights contains no derogation clause, but in general it has more far-reaching limitation clauses.

16 For a good presentation of the different human rights theories, see Shestack, J., “The Jurisprudence of Human Rights” in Meron, T., ed., Human Rights in International Law, Oxford University Press, London, 1984, Volume 1, p. 69.Google Scholar

17 In particular J. Bentham and J. Austin, in T. Meron, ed., ibid. p. 79.

18 Marx is commonly cited as the origin of this social development, but he was not the only theorist of that period to speak of the importance of social and economic rights. We may refer in particular to Thomas Paine who proposed, in The Rights of Man, a plan which resembles a type of social security system, including children's allowances, old-age pensions, maternity, marriage and funeral allowances, and publicly endowed employment for the poor.

19 For a general article on the work of the ILO, see Wolf, F., “Human Rights and the International Labour Organization”Google Scholar in T. Meron, ed., Human Rights and International Law, op.cit., No. 16 above, Volume II, p. 273.

20 See in particular Cranston, M., What Are Human Rights?, 1973 Google Scholar. Also, Dowrick, , Human Rights, Problems, Perspectives and Texts Google Scholar, Saxon House, Farnborough, 1979.

21 Article 2.

22 Article 2.

23 Illustrative of this problem is the extensive discussion of how the right to food should be implemented in P. Alston and K. Tomasevski, eds., The Right to Food, SIM, Utrecht, 1984.Google Scholar

24 See Alston, P., “The Committee on Economic, Social and Cultural Rights” in P. Alston, ed., The United Nations and Human Rights, 1992.Google Scholar

25 For a general article on this subject see Drzewicki, K., “The Rights of Solidarity — the Third Revolution of Human Rights”, 53 Nordisk Tidsskrift for International Ret, 1984, p. 26.Google Scholar

26 There are various articles on the subject in Interculture, Volume XVII, Nos. 1–2 1984. An interesting address on “The universality of human rights and their relevance to developing countries” was also given by Dr. Shashi Tharoor at the Friedrich Naumann Stiftung Conference on Human Rights, Sintra, Portugal, 14–16 November 1988 (available from UNHCR).

27 The main justification of the continued applicability of humanitarian law is that most of the rules have as their aim the protection of the vulnerable in armed conflicts and that these rules can be applied in practice only if they are applicable to both sides. Further, as with human rights philosophy, humanitarian law has as its major premise the applicability of protection to all persons, irrespective of whether the individuals are perceived as “good” or “bad”.

28 Note 1 above.

29 ibid.

30 See in particular:

— For the Human Rights Committee: Lanza de Netto, Weismann and Perdomo v. Uruguay, Com. No. R.2/8, A/35/40, Annex IV, paragraph 15; Camargo v. Colombia, Com. No. R.11/45, Annex XI, paragraph 12.2.

— European Court of Human Rights: Lawless Case (Merits), Judgment of 1st July 1961, paragraph 20 ff.; Ireland v. United Kingdom, Judgment of 18 January 1978, Series A No. 25, paragraph 202 ff.

— For the Inter-American Court of Human Rights: Habeas corpus in emergency situations, Advisory opinion OC-8/87 of 30 January 1987; Judicial guarantees in states of emergency, Advisory opinion OC-9/87 of 6 October 1987.

31 See in particular the following general observations:

5(13) on Article 4 of the Covenant, A/36/40, Annex VII;

7(16) on Article 7 of the Covenant, A/37/4O, Annex V;

8(16) on Article 9 of the Covenant, A/37/40, Annex V;

13(21) on Article 14 of the Covenant, A/39/40, Annex VI.

32 See Higgins, , “Derogations under Human Rights Treaties”, British Yearbook of International Law, 1976–1977, 281 CrossRefGoogle Scholar

33 The most recent codification of the prohibition of the use of weapons of a nature to cause unnecessary suffering is in Article 35(b) of 1977 Protocol I. This reasoning, however, is most clearly stated in the St. Petersburg Declaration of 1868: “…the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy… this object would be exceeded by the disabled men, or render their death inevitable…”

34 Articles 48 and 52.

35 Article 52(5)(b).

36 Article 54.

37 Articles 14 and 15 of the Fourth Geneva Convention and Articles 59 and 60 of 1977 Protocol I. It should be noted, however, that a non-defended area was protected from bombardment in customary law.

38 Article 12 of the ESC Covenant recognizes that everyone has the right to “the enjoyment of the highest attainable standard of physical and mental health”. This goes much further of course than what is provided for in humanitarian law, but it is the only human rights provision under which the right to receive needed medical treatment could be categorized.

39 Article 55 of the Fourth Geneva Convention and Article 69 of Additional Protocol I.

40 Article 23 of the Fourth Geneva Convention and Article 70 of Additional Protocol I.

41 Article 11 of the ESC Covenant recognizes the right of everyone to “an adequate standard of living… including adequate food, clothing and housing”.

42 Articles 68 and 75 of the Fourth Geneva Convention.

43 For example, Article 3 common to the Geneva Conventions prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”.

44 Article 4(2)(f).

45 Article 74 in particular.

46 Articles 42 and 43 in particular.

47 Page 106.

48 For further detail, see D. Planner, “Protection of children in international humanitarian law”, IRRC, No. 240, May–June 1984, pp. 140–152.

49 The articles are too numerous to list individually, but the majority are to be found in the Third and Fourth Geneva Conventions and their Additional Protocols.

50 Article 34, Third Geneva Convention, and Articles 27 and 38(3), Fourth Geneva Convention.

51 Articles 33 and 35–37, Third Geneva Convention, and Articles 38(3), 58 and 93, Fourth Geneva Convention.

52 Article 17, First Geneva Convention; Article 120, Third Geneva Convention; Article 130, Fourth Geneva Convention.

53 Although the Lieber Code did make some mention of forms of protection that could be accorded in civil wars, treaty law did not do so until common Article 3 of the Geneva Conventions.

54 See footnote 1 above.

55 See: Meron, T., “The protection of the human person under human rights law and humanitarian law”, Bulletin of Human Rights 91/1, United Nations, New York, 1992 CrossRefGoogle Scholar

56 “Convention on the Rights of the Child”, Human rights in international law, Basic texts, Council of Europe, Strasbourg, 1991.Google Scholar

57 Resolution 46/136 on the situation of human rights in Afghanistan. See also Resolution 46/135 on the situation of human rights in Kuwait under Iraqi occupation and Declaration 47/133 on the protection of all people against forced disappearances.

58 This document was published by the UN under reference No. A/CONF. 157/PC/35.

59 Islamic Declaration of Human Rights, Article 3.

60 See also Security Council Resolutions 670 (1990) and 674 (1990) on Iraq's occupation of Kuwait, and Resolution 780 (1992) establishing a Commission of Experts to enquire into breaches of humanitarian law committed in the territory of the former Yugoslavia. See also the Interim Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992): S/25274.

61 Among the most recent examples, see in particular the Report of the Working Group on Enforced or Involontary Disappearances (E/CN.4/1993/25 paras. 508–510) and its Addendum on the situation in Sri Lanka (E/CN.4/1993/25/Add.l paras. 40.42), and the Report on Extrajudicial, Summary or Arbitrary Executions (E/CN.4/1993/46 paras. 60, 61, 664 and 684).

62 Report on the situation of human rights in Kuwait under Iraqi occupation, prepared by Mr. Walter Kälin (E/CN.4/1992/26).

63 ibid, para. 33.

64 ibid, para. 36.

65 As in Articles 63, 62, 142 and 158 common to the four 1949 Geneva Conventions. The Rapporteur considers that the principles set out in these articles are relevant to the case he is examining and that they belong both to human rights and to humanitarian law.

66 For further details on the Grenada affair, see D. Weissbrodt and B. Andrus, “The Right to Life During Armed Conflict: Disabled Peoples' International v. United States” 29, Harvard Int. L.J., 1988, p. 59.Google Scholar

67 See Article 4(2) of the International Covenant on Civil and Political Rights, Article 15(2) of the European Convention on Human Rights and Article 27(2) of the American Convention on Human Rights.

68 For the text of the Declaration of Minimum Humanitarian Standards, see E/CN.4/Sub.2/1991/55 or the International Review of the Red Cross, No. 282, 05–06 1991, pp. 330–336.Google Scholar

69 Idem, Article 1.

70 Other initiatives comparable to the Turku Declaration have been taken in recent years. Examples are:

Gasser, Hans-Peter, “Code of Conduct in the event of internal disturbances and tensions”, International Review of the Red Cross, No. 262, 01–02 1988, pp. 51–53 Google Scholar.

Meron, Theodor, “Draft Model Declaration on Internal Strife”, International Review of the Red Cross, No. 262, 01–02 1988, pp. 59–76.CrossRefGoogle Scholar

71 In particular Human Rights Watch, which has used humanitarian law in a number of its reports, e.g. Needless Deaths, issued in 1992, on the Second Gulf War.

A large number of these organizations have recently begun a campaign to reduce the severe problems caused by the indiscriminate use of land mines, by calling for better respect for existing humanitarian law and for the eventual ban of the use of anti-personnel mines.

72 See pp. 116–117 above.

73 The importance of humanitarian law for facilitating the return to peace was already indicated in nineteenth century instruments, including the Brussels Declaration of 1874.

74 Modern teaching methods of humanitarian law stress the importance of inculcating correct behaviour during military exercises, rather than separate lessons that appear to have nothing to do with practicalities.