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.
The international law of armed conflicts, of which international humanitarian law is a part, was formulated much earlier than international human rights law. Important phases in the development of the humanitarian law of armed conflicts were the (diplomatic) Conferences of Paris (1856), Geneva (1864), St. Petersburg (1868), Brussels (1874), The Hague (1899, 1907) and Geneva (1949 and 1977).
The international law instruments adopted at these conferences form the basis of modern hu471 Human Rights and Armed Conflict manitarian law, the most relevant being the four Geneva Conventions (1949) and their two Additional Protocols (1977). The principal purpose of the four Geneva Conventions was to set out humanitarian rules to be followed in international armed conflict. The Convention relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention) lists a number of actions which the parties must refrain from in all circumstances. These include actions that are recognised as violating the most basic human rights, such as violence endangering life, torture and physical or moral coercion, as well as non-compliance with many due process rights. The Convention forbids in the strongest terms the utilisation of human shields. It also provides that civilians may not be compelled to work for an occupying power unless certain strict conditions are met (Article 51). The Additional Protocols to the Geneva Conventions, which were adopted by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (1977), are major developments in this context.
The International Committee of the Red Cross (ICRC) monitors compliance with the Geneva Conventions and the Protocols by, inter alia, visiting places of detention, receiving complaints of breaches of humanitarian law and addressing concerns to governments.
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.
Other recent international efforts to lessen human suffering resulting from conflict is the fight against the widespread use of anti-personnel mines and small arms and the efforts to curb easy funding such as the trade in ‘conflict diamonds’ and the use of drug revenues to finance conflicts.
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 (see the diagram below). 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 diagram shows the scope of application of the two areas of international law.
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 noninternational 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 in this handbook. 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:
- torture of all kinds, whether physical or mental,
- corporal punishment,
(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.
A prisoner of war (POW) is a combatant who is imprisoned by an enemy power during an armed conflict. The first international convention to define the requirements for combatants to be eligible for treatment as prisoners of war was the Second Hague Convention (1899). The 1949 Geneva Conventions are the main conventions today that provide a framework for protective rights of POWs. The basic principle is that being a soldier is not a punishable act in itself. The laws apply from the moment a prisoner is captured until he is released or repatriated. It is prohibited to torture prisoners, and a prisoner can only be required to give his name, date of birth, rank and service number (if applicable).
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. Article 4 defines protected persons as the following:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. [...]
Article 5 of the same Convention circumscribes the rights of protected persons when they commit hostile acts:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
In addition to terms such as prisoner of war and protected persons, some countries have introduced the term ‘illegal combatants’ (also referred to as unlawful combatants). This term refers to persons who carry arms or engage in warlike acts in alleged violation of the law of war. Such persons are not necessarily considered lawful combatants and therefore are not necessarily accorded the rights of prisoners of war. The term ‘illegal combatant’ was first introduced in 1942 by the United States Supreme Court decision in the case ex parte Quirin (317 U.S. 1 (1942)). In this case, the Supreme Court upheld the judgement of a United States military tribunal regarding several German saboteurs in the United States. This decision states:
[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.
The legal status of ‘illegal combatant’ or ‘enemy combatant’ as defined by some countries since 2001 has been criticised by many states parties to the Geneva Conventions, international institutions such as the ICRC and NGOs. These criticisms have pointed out that terms such as ‘illegal combatant’ or ‘enemy combatant’ have been used to deny detainees basic civil rights, such as the right to a counsel, a speedy trial and the right to appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in an unacceptable way. Many governments and human rights organisations worry that the introduction of the ‘illegal or enemy combatant’ status sets a dangerous precedent for other regimes to follow, in addition to undermining the Geneva Conventions. These concerns have found response and support by the United States Supreme Court. In Hamdi et al. v. Rumsfeld et al. (2004) the Supreme Court concluded that although Congress authorised the detention of combatants in the narrow circumstances alleged in this case, due process demands that people held in the United States as enemy combatants be given a meaningful opportunity to contest the factual basis for their detention before a neutral decision maker. The Court further held on the same day that detention may be challenged by detainees with this status. The petitioners, two Australians and twelve Kuwaitis, were captured abroad during hostilities, and were being held, since early 2002 - along with, according to the government’s estimate, approximately 640 other non-Americans - in military custody at the Guantanamo Bay Naval Base, Cuba, which the United States occupies under a lease and treaty. The Supreme Court held that United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and who, in this case, are incarcerated at the Guantanamo Bay Naval Base. In response to this judgement, the Bush administration in 2006 passed the Military Commission Act, which maintained that military trials for ‘illegal combatants’ were necessary due to the extraordinary circumstance of the ‘war on terror’, The act attempted to legitimise the suspension of habeas corpus. This was resolutely contradicted in the Supreme Court case of Boumediene et al v. Bush (2008), where it was reaffirmed that the US court system has jurisdiction to consider challenges to the incarceration of enemy combatants detained in Guantanamo Bay. The decision further established that the US laws and Constitution are inherently ‘designed to survive and remain in force in extraordinary times’.
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.
3. HUMANITARIAN INTERVENTION
Humanitarian intervention refers to the use of force against one state by another state or states with the declared objective of ending or reducing suffering within the first state. That suffering may be the result of civil war, humanitarian crisis, or crimes by the first state including genocide. Humanitarian intervention is traditionally justified for instances of massive human rights violations – when put in motion by an international body, such as the UN Security Council, with reference to, e.g., Article 28 UDHR which establishes the right to a social and international order in which human rights are realized.
The Chapter VII powers mandate the UN Security Council to sanction intervention to meet threats to international peace and security. Any such action runs counter to the general principle of non-intervention stated in the Charter, Article 2(4), which reads:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Some of those opposing interventionist tendencies argue that the Western countries are motivated by neo-imperialism as opposed to concern for human rights, and that the so-called humanitarian mission is merely a modern version of the civilising missions previously used to justify colonisation. Despite these voices, in the late 1990s the definition of ‘threats to international peace’ was drastically broadened to justify intervention in Somalia and Yugoslavia where forces under UN auspices intervened without securing permission from the states in question. The marked change in the nature of modern armed conflict, where internal conflicts have replaced inter-state conflict and civilians now make up the vast majority of casualties, has led to a call for the remodelling of humanitarian intervention. The genocides in Cambodia, Rwanda and Bosnia, as well as crimes against humanity in Kosovo, East Timor and Darfur, demonstrated massive failure by the international community to prevent atrocities, thus confirming the need for a shift from state sovereignty to the security of the community and the individual.
In 2001, the International Commission on Intervention and State Sovereignty articulated the concept of ‘Responsibility to Protect’ (R2P). This posits that a nation’s sovereignty concerns not so much its borders, but rather its position as the principle guardian of its citizens - providing a legal and ethical basis for the intervention by external actors (preferably the international community through the UN) in a state that is unwilling or unable to prevent or stop genocide, massive killings and other massive human rights violations. The responsibility to protect citizens shifts to the international community when the state is either unable or unwilling to protect its people. The concept was endorsed by the United Nations 2005 ‘World Summit Outcome Document’ where Heads of State and government agreed in paragraphs 138 and 139 that:
Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
Several important advancements have taken place since 2005, including the Security Council unanimous adoption of Resolution 1674 on ‘the Protection of Civilians in Armed Conflict’, which expressly refers to the R2P. In Resolution 1706, authorising the sending of UN peacekeeping troops to Darfur, the Security Council also referred to Resolution 1674 and paragraphs 138 and 139 in the Summit Outcome Document.
The UN Secretary-General has appointed a Special Adviser on the Prevention of Genocide and a Special Adviser to the Secretary-General with a focus on the Responsibility to Protect. Due to some states opposition to the R2P, the position was revised to focus on the ‘responsibility to protect populations from genocide, ethnic cleansing, war crimes and crimes against humanities’.
Despite growing consensus on the R2P, traditional opponents of intervention have maintained their resistance. In 2007, a Security Council resolution on the situation in Burma was vetoed by China and Russia arguing that the country ‘did not pose a threat to peace and security in the region, and that the internal affairs of the state did not have a place within the Security Council.’ UN Security Council Resolution 1769, which authorised the deployment of a UN-AU force in Darfur did not refer to the Responsibility to Protect or to the Protection of Civilians Resolution. Furthermore, during the UNGA Fifth Committee bi-annual budget debate in 2008, the Committee declined funding of the office of the new Special Adviser on R2P. Some Members argued that the R2P had never been agreed to ‘as a norm’.
These difficulties, coupled with the lack of an appropriate response by the international community in Darfur, Somalia, Burma and the Democratic Republic of Congo, indicate the tremendous efforts needed to garner action in existing and potential R2P situations.
At the regional level, the Responsibility to Protect has been embraced strongly by the African Union. Article 4 of its Constitutive Act proclaims its right to intervene in instances of grave violations. The Ezulwini Consensus, while recognising that primary responsibility rests with the Security Council, allows for the possibility that the Union 481 Human Rights and Armed Conflict may receive from the Council after-the-fact approval for intervention in extreme emergencies. The African Standby Force, to be operational by 2010, is envisioned to help fulfil the African Union’s commitment to the Responsibility to Protect.