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The law of internal crisis and conflict

Published online by Cambridge University Press:  19 April 2010

Tom Hadden  and
Colin Harvey
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Type
Research Article
Information
International Review of the Red Cross , Volume 81 , Issue 833: Débat humanitaire/Humanitarian Debate , March 1999 , pp. 119 - 133
Copyright
Copyright © International Committee of the Red Cross 1999

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References

1 There is a huge range of literature on this and many other issues discussed in this article; references will be made only to those from which a relevant point is derived directly.

2 In this article the term “humanitarian law” will be reserved for the law governing humanitarian intervention; the rules in the Geneva Conventions and Protocols will be referred to as the “law of armed conflict”.

3 Fleck, D. (ed.), The Handbook of humanitarian law in anved conflicts, Oxford University Press, Oxford, 1995.Google Scholar

4 Kälin, W. (ed.), Human rights in times of occupation: the case of Kuwait, Stämpfli, Berne, 1994, pp. 26–27.Google Scholar

5 See, e.g., Human rights and law enforcement: A manual on human rights training for the police. United Nations Centre for Human Rights, 1997; de Rover, C., To serve and protect: human rights and humanitarian law for police and security forces. International Committee of the Red Cross, Geneva, 1998.Google Scholar

6 International Covenant on civil and political rights (ICCPR), Art. 4; (European) Convention for the protection of human rights and fundamental freedoms (ECHR), Art. 15.

7 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II), Art. 1.

8 Art. 1 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) extends the application of the Geneva Conventions of 1949 to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination”.

9 ICCPR, Art. 4 (2); ECHR, art. 15 (2).

10 First Geneva Convention, Art. 50; Second Geneva Convention, Art. 51; Third Geneva Convention, Art. 130; Fourth Geneva Convention, Art. 147; Protocol I, Art. 85; Protocol II, Art. 4 (2).

11 ICCPR, Art 7; ECHR, Art. 3.

12 First Geneva Convention, Art. 3 and 12; Second Geneva Convention, Art. 3 and 12; Third Geneva Convention, Art. 3 and 13; Fourth Geneva Convention, Art. 3 and 27; Protocol II, Art. 4.

13 First Geneva Convention, Art 13; Second Geneva Convention, Art. 13; Third Geneva Convention, Art. 4; Fourth Geneva Convention, Art. 4.

14 “Declaration of minimum humanitarian standards”, reprinted in UN Doc. E/CN.4/1996/80 and Revue Internationale de la Croix-Rouge/International Review of the Red Cross, No. 282, May-June 1991, p. 328.

15 ICCPR, Art. 6; ECHR, Art. 2.

16 ECHR, art 2; United Nations Basic Principles on the use of force and firearms by law enforcement officials, 1990, Art. 9.

17 See, e.g., Goldman, R., “International humanitarian law: Americas Watch's experience in monitoring internal armed conflict”, American University Journal of International Law and Policy, vol 9, 1993, P. 75Google Scholar

18 McCann v United Kingdom, European Human Rights Reports, vol. 21, 1996, p. 97.

19 ICCPR, Arts. 9 and 14; ECHR Arts 5 and 6.

20 Third Geneva Convention, Arts. 82–108.

21 Common Article 3 (1) (d); Protocol II, Art. 6.

22 See Stavros, S., “The right to a fair trial in emergency situations”, International and Comparative Law Quarterly, vol. 41, 1992, p. 343.CrossRefGoogle Scholar

23 ICCPR, Art 4 (1).

24 ICCPR, Art. 19, 21–22 and 25; ECHR Art. 10–11 and Protocol 1, Art. 3. Article 23 of the American Convention on human rights, which makes the right to political participation non-derogable, is out of line.

25 T. Hadden, “Human rights abuses and the protection of democracy during states of emergency”, Cairo Conference on Democracy and the Rule of Law, 1997 (forthcoming).

26 ICCPR, Art. 12; ECHR, Protocol 4, Art. 2.

27 Fourth Geneva Convention, Art 49; Protocol II, Art. 17.

28 Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, 1968, Art. 1 (b).

29 Art. l (A) (2).

30 Report of the Special Representative of the Secretary-General on internally displaced per-sons.UN Doc. E/CN.4/1998/53 (Deng Report).

31 See Goldman, op. cit. (note 17).

32 See the judgement of the Inter-American Court of Human Rights in Velasquez Rodriguez v Honduras, Human Rights Law Journal, vol. 9, 1988, p. 212.Google Scholar

33 See, for example, the opinion of the Human Rights Committee in Suarez de Guerrero v Columbia, No. 45/1979 (1982).Google Scholar

34 Art. 6 (5).

35 First Geneva Convention, Arts. 49–51; Second Geneva Convention, Arts. 50–52; Third Geneva Convention, Arts. 129–131; Fourth Geneva Convention, Arts. 146–148.

36 Amnesties linked with various forms of truth commissions have been implemented as part of political settlements following almost all the recent conflicts in Latin America and in South Africa.

37 See the decisions of the Inter-American Commission on Human Rights that the amnesty laws in Argentina and Uruguay were contrary to the American Convention on Human Rights: Report No. 28/92 in respect of Argentina and Report No. 29/92 in respect of Uruguay, , Human Rights Law Journal, vol. 13, 1992, p. 336.Google Scholar But a challenge to the amnesty powers of the Truth and Reconciliation Commission in South Africa on the ground that they were contrary to the human rights included in its new Constitution was rejected on the grounds that it had been adopted as part of the peace settlement, AZAPO v President of the Republic of South Africa [1996] [4], South African Law Reports, p. 562.

38 United Nations Charter, Chapter VII.

39 First Geneva Convention, Art. 9; Second Geneva Convention, Art. 9; Third Geneva Convention, Art. 9; Fourth Geneva Convention, Art. 10; Protocol I, Art. 81; Protocol II, Art. 18.

40 As, for example, the recent interventions in Sierra Leone under the auspices of the Organization of African Statesand in Kosovo under the auspices of the Organization for Security and Cooperation in Europe.