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Human rights are rights inherent to all human beings, regardless of race, sex,
nationality, ethnicity, language, religion, or any other status. Human rights include
the right to life and liberty, freedom from slavery and torture, freedom of opinion
and expression, the right to work and education, and many more. Everyone is
entitled to these rights, without discrimination.
International human rights law lays down the obligations of Governments to act in
certain ways or to refrain from certain acts, in order to promote and protect human
rights and fundamental freedoms of individuals or groups.
The foundations of this body of law are the Charter of the United Nations and the
Universal Declaration of Human Rights, adopted by the General Assembly in 1945
and 1948, respectively. Since then, the United Nations has gradually expanded
human rights law to encompass specific standards for women, children, persons
with disabilities, minorities and other vulnerable groups, who now possess rights
that protect them from discrimination that had long been common in many
societies.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR)is a milestone document in
the history of human rights. Drafted by representatives with different legal and
cultural backgrounds from all regions of the world, the Declaration was proclaimed
by the United Nations General Assembly in Paris on 10 December
1948 by General Assembly resolution 217 A (III) as a common standard of
achievements for all peoples and all nations. It sets out, for the first time,
fundamental human rights to be universally protected. Since its adoption in 1948,
the UDHR has been translated into more than 501 languages – the most translated
document in the world - and has inspired the constitutions of many newly
independent States and many new democracies. The UDHR, together with
the International Covenant on Civil and Political Rights and its two Optional
Protocols (on the complaints procedure and on the death penalty) and
the International Covenant on Economic, Social and Cultural Rights and
its Optional Protocol, form the so-called International Bill of Human Rights.
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.
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 relationship between human rights law and the law of armed conflicts is easily
explained in a schematic way. 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 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.
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:
• murder,
• torture of all kinds, whether physical or mental,
• corporal punishment,
• mutilation;
(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.
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.
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.
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.
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.
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.
CONCLUSION
The laws which regulate warfare are a reflection of their time and the structure of
society, its political and social order, the prevailing economic system and the
dominant moral and political discourses on war and law. Transformation and
adaptation, not only to new circumstances and factual demands of war and warfare
but also to the perceptions and expectations of society at large, are characteristic of
the law. Historically, the law of armed conflict has gone through a series of
transformations from medieval customary rules to the rational balancing of
military advantage and human suffering in the Hague law, and the humanitarian
advocacy tradition in the Geneva law, which finally allowed the creation of
international humanitarian law in 1949. The debate on human rights in armed
conflict is the response of our times to the dynamics of war and law.
With its mix of charity as an expression of faith and chivalry as a reflection of
class and professionalism, and the rational and calculating positivism and
philanthropic activism of the nineteenth century, the law of armed conflict is
informed by a strong and vibrant humanitarian legacy; yet it does not adequately
reflect the cosmopolitan views of the twenty-first century. This does not question
its importance as an indispensible legal framework which mitigates the
consequences of armed conflicts in all their forms. The debate on human rights in
armed conflict is, or should be, a debate on the interplay of human
rights and humanitarian law, and not an attempt to relegate international
humanitarian law from the battlefield as the result of a competition in which one
legal regime trumps the other. Today, the notion of “humanitarian” in humanitarian
law can be understood properly only with reference to the idea, language, law and
policy of human rights as the dominant moral and legal discourse of our times.
Since the adoption of the Universal Declaration of Human Rights in 1948,
humanity is no longer a grace but a right.