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Implementation of human rights and humanitarian law in situations of armed conflict

Published online by Cambridge University Press:  13 January 2010

David Weissbrodt  and
Peggy L. Hicks
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Extract

Governments are principally responsible for the implementation of international human rights and humanitarian law during periods of armed conflict. During non-international armed conflicts, governments and armed opposition groups each bear responsibility for their obedience to those norms.

International organizations can encourage the participants in armed conflicts to respect human rights and humanitarian law. The International Committee of the Red Cross (ICRC) has long played a leading role in working for the application of humanitarian law during armed conflicts; it has also begun to refer to human rights law in situations of internal strife or tensions not covered by international humanitarian law. The United Nations General Assembly, the UN Commission on Human Rights, the International Court of Justice, and several other intergovernmental organizations have occasionally attempted to secure respect for human rights law during armed conflicts and have referred on an irregular basis to humanitarian law in such endeavors. The UN Security Council has almost exclusively used humanitarian law in its decisions.

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. 120 - 138
Copyright
Copyright © International Committee of the Red Cross 1993

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References

1 See International Covenant on Civil and Political Rights, Art. 2, entered into force March 23, 1976, GA res. 2200 A (XXI); 21 UN GAOR, Supp. (No. 16) 49, UN Doc. A/6316 (1967); common Art. 1 of 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, 6 UST 3114, TIAS No. 3362, 75 UNTS 31 (hereinafter cited as First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 UST 3217, TIAS No. 3363, 75 UNTS 85 (Second Geneva Convention); Geneva Convention relative to the Treatment of Prisoners of War, 6 UST 3316, TIAS No. 3364, 75 UNTS 135 (Third Geneva Convention); Geneva Convention relative to the Protection of Civilian Persons in Time of War, 6 UST 3516, TIAS No. 3365, 75 UNTS 287 (Fourth Geneva Convention; hereinafter collectively cited as the Geneva Conventions).

2 See, e.g., Geneva Conventions, common Article 3.

3 First, Second, and Third Geneva Conventions, common Art. 9; Fourth Geneva Convention, Art. 10; Geneva Conventions, common Art. 3; The Red Cross and Human Rights, ICRC, 38–39 (1983)Google Scholar; Schindler, Dietrich, “The International Committee of the Red Cross and human rights”, 208 International Review of the Red Cross (IRRC), 3 (01–02 1979).Google Scholar

4 See General Assembly res. 2675 (XXV), 25 GAOR, Supp. (No. 28), at 77; UN Doc. A/8028 (1970); see also “United Nations action in the field of human rights”, UN Doc. ST/HR/2, at 110–16 (1973).

5 See UN Doc. E/CN.4/1985/18, at 37–45 (1985); UN Doc. A/39/636, at 28–34 (1984) (Special Rapporteur, El Salvador); UN Doc. E/CN.4/1985/19 (1985) (Special Rapporteur, Guatemala); but UN Doc. E/CN.4/1985/21, at 28–32, 42–45, 47–48 (1985).

6 See “Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States)”, (1986)Google Scholar I.C.J. 14, 113–15, 129–30; in 25 Int'l Legal Materials 1023, 1073–74, 1081 (1986).

7 See generally Ramcharan, B. G., “The role of international bodies in the implementation and enforcement of humanitarian law and human rights law in non-international armed conflicts”, in 33 American U. L. Rev. 99 (1983)CrossRefGoogle Scholar; Wolf, Francis, “L'OIT et la Croix-Rouge — Convergences de leur action”, in Studies and essays on international humanitarian law and Red Cross principles in honor of Jean Pictet 1011 (C. Swinarski ed., 1984). For a review of historical efforts to implement the Hague Regulations through international adjudication, see Gross, Leo, “New rules and institutions for the peaceful settlement of international disputes”, 76 Proc. Am. Soc. Int'l L. 131(1982).

8 See Weissbrodt, David, “The Contribution of international non-governmental organizations to the protection of human rights” in 2 Human rights in international law 403 (Meron, Ted, ed., 1984)Google Scholar; ibid at 436–38 (for bibliography); Shestack, “Sisyphus endures; The international human rights NGO”, 24 N.Y.L.S.L. Rev. 89 (1978).Google Scholar

9 GA res. 217A, UN Doc. A/810, at 71 (1948).

10 See note 1, supra.

11 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, UN Doc. A/32/144, Annex I, in 16 Int'l Legal Materials 1391 (1977)Google Scholar; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, UN Doc. A/32/144, Annex II, in 16 Int'l Legal Materials 1442 (1977).Google Scholar

12 See Weissbrodt, David, “The Role of international organizations in the implementation of human rights and humanitarian law in situations of armed conflict”, 21 Vand.J. Transnat'l L. 313 (1988).Google Scholar

13 ibid., at 323–25.

14 GA res. 217A, UN Doc. A/810, at 71 (1948).

15 GA res. 2200A; 21 UN GAOR, Supp. (No. 16) 49, UN Doc. A/6316 (1967).

16 As at 30 March 1993.

17 United Nations, Multilateral treaties deposited with the Secretary-General (1993).Google Scholar

18 See Hartman, W. G., “Derogations for human rights treaties in public emergencies”, 22 Harv. Int'l L. J. 1 (1981)Google Scholar; Meron, Ted, “Towards a humanitarian declaration on internal strife”, 78 AJIL 859 (1984)Google Scholar. Although war was the scenario which figured most prominently in the minds of the drafters of the derogation clauses, derogations have been invoked because of internal disturbances (Hartman at 13).

19 Amnesty International, Memorandum presented to the Government of Guatemala following a mission to the country in April 1985, at 34, 37 (1986)Google Scholar (AI Index: AMR 34/01/86).

20 The Helsinki Watch report on Afghanistan cites various provisions of humanitarian law, but fails to analyze adequately the nature of the conflict and the consequent application of particular instruments of humanitarian law. Helsinki Watch, “Tears, blood and cries: Human rights in Afghanistan since the invasion, 1979–1984 (1984)Google Scholar. Compare the far more careful approach of Americas Watch, Violations of the laws of war by both sides in Nicaragua, 1981–1985, at 11–34 (1985)Google Scholar, and the somewhat less complete approach of Americas Watch, The Miskitos in Nicaragua, 1981–1984, at 49 (1984).Google Scholar

21 Much of the material in this part of the study comes from The Red Cross and human rights (1983)Google Scholar (ICRC Doc. CD/7/1, prepared for the Red Cross Council of Delegates, 13–14 Oct. 1983).

22 “Action by the ICRC in the event of breaches of international humanitarian law”, 221 IRRC 76 (March–April 1981).

23 The Red Cross and human rights, op. cit.

24 Decision of the Commission as to the admissibility: Application No. 9213 by Disabled Peoples' International et al. v. United States, OEA/Ser.L./V/II.67 Doc. 6 (April 17, 1986). (Hereinafter cited as DPI v. US).

25 “Every human being has the right to life, liberty and the security of his person”, Art. 1; “Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources”, Art. 11.

26 Geneva Conventions, supra note 1.

27 DPI v. US, supra note 24, at 13.

28 The Inter-American Commission on Human Rights generally relies upon the provisions of the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights for its operative human rights standards, but the Commission has found violations of common Article 3 of the Geneva Conventions. See, e.g., Inter-American Commission on Human Rights, Report on the situation of human rights in the Republic of Guatemala, OAS Doc. OEA/Ser.L/V/11.61, Doc. 47 rev. 1, at 69–70 (1983).

29 See e.g. Letter from Sandra Coliver, Attorney for Human Rights Advocates and California Attorneys for Criminal Justice to the Superior Court of California, January 31, 1985, re People v. Barbara Bannon, et al.; Greenhorn women against cruise missiles, et al. v. Reagan, et al., Brief for Amicus Curiae.

30 See e.g. In the matter of Jesus del Carmea Medina, before the US Dept. of Justice, Board of Immigration Appeals (1985) and Paust, Jordan J., “After My Lai: The case for war crimes jurisdiction over civilians in federal district courts”, 50 Tex. L. Rev. 6 (1971).