The Protection of Human Rights in Armed Conflicts
By Myrna El Fakhry Tuttle
Reposted from LawNow with permission
During times of armed conflict, international humanitarian law (IHL) and human rights law (HRL) are meant to protect human beings and reduce their suffering.
Armed conflicts are happening in various parts of the world. Unfortunately, serious violations of international humanitarian law (IHL) and human rights law (HRL) are also taking place. These violations can constitute genocide, war crimes or crimes against humanity.
IHL and HRL aim to respect and protect human beings and reduce their suffering. Though they have different purposes, both come into play during armed conflicts.
HRL consists of international norms that protect and promote universal human rights that are interrelated, interdependent and indivisible. According to the Office of the High Commissioner for Human Rights:
They are often expressed and guaranteed by law, in the form of treaties, customary international law, general principles and soft law. Human rights entail both rights and obligations. International human rights law lays down the obligations of States to act in certain ways or to refrain from certain acts, in order to promote and protect the human rights and fundamental freedoms of individuals or groups.
The Geneva Conventions and their Additional Protocols form the core of IHL, which establishes rules that try to limit the impacts of armed conflict on individuals, including “civilians, persons who are not or no longer participating in the conflict and even those who still are, such as combatants.” Therefore, IHL includes two areas: “the protection of persons; and restrictions on the means and the methods of combat.”
HRL Applies at All Times
For many years, there was a debate about the applicability of HRL in situations of armed conflict. It used to be the case that, during armed conflict, the operation of treaties between the parties was suspended. Under modern international law though, HRL continues to apply in situations of armed conflict together with IHL.
Sayed and Iqbal Dar stated:
[..] it is widely recognized nowadays by the international community that since human rights obligations derive from the recognition of inherent rights of all human beings and that these rights could be affected both in times of peace and in times of armed conflict, international human rights law continues to apply in situations of armed conflict. Consequently, the two bodies of law—international human rights law and international humanitarian law—are considered to be complementary sources of obligations in situations of armed conflict.
Further proof is found in human rights treaties, which do not say they do not apply in times of armed conflict. The United Nations International Law Commission, in its report on the Effects of Armed Conflicts on Treaties, stated that “the outbreak of an armed conflict does not ipso facto terminate or suspend the operation of treaties in force between the parties to the armed conflict” (article 2). The International Court of Justice (ICJ) has also confirmed this by stating that “the protection of the International Covenant on Civil and Political Rights does not cease in times of war.”
States’ Obligations under HRL
HRL sets out the obligations of States to promote and protect the human rights and fundamental freedoms of individuals.
The Office of the High Commissioner for Human Rights affirmed:
[…], in armed conflict, parties to the conflict have legally binding obligations concerning the rights of persons affected by the conflict. Although different in scope, international human rights law and international humanitarian law offer a series of protections to persons in armed conflict, whether civilians, persons who are no longer participating directly in hostilities or active participants in the conflict.
Under HRL, States are required to respect its nationals or citizens’ rights and protect them from any human rights violations. These obligations continue to apply in situations of armed conflict within the State’s territory and outside its borders.
According to Françoise Hampson:
When a State assumes an international legal obligation, it is bound to give effect to it wherever it takes relevant action. The content of the rule and the nature of the action to be taken may mean that it only has effect within national territory. Where the obligation concerns executive action, it is likely that the State will have to apply the content both within and outside national territory. It would be objectionable to allow a State to torture on condition that it did so outside national territory.
Human rights bodies suggest that the obligation to respect human rights applies once a State’s conduct (e.g. through an aerial bombardment) impacts a person’s rights. They also suggest that control over persons (e.g. detainees) can be sufficient to trigger jurisdiction.
Non-Derogable Rights
States cannot derogate from (downplay) fundamental human rights in any circumstances, including a public emergency. These rights are non-derogable, meaning they apply and are enforceable at all times. They include the right to life, the prohibition of torture or cruel, inhuman or degrading treatment, the right to a fair trial and prohibition of discrimination.
Article 4 of the ICCPR sets out this authority under HRL:
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
In addition, article 75 of Protocol I Additional to the 1949 Geneva Conventions, which talks about fundamental guarantees under IHL, reads:
2. 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.
Françoise Hampson stated:
In situations of “[war or other] public emergency,” some rights may be modified, though not eliminated by derogation. Other rights (e.g., the prohibition of arbitrary killing, torture, cruel, inhuman or degrading treatment or punishment) are non-derogable. They therefore remain applicable, and the key question is how the concepts are interpreted.
Therefore, a State can suspend certain derogable provisions of HRL in situations threatening the life of the nation. Derogable rights include the freedom of movement, liberty and security, freedom of association, etc. A State may limit or suspend these rights during the public emergency, but only to the “extent strictly required by the exigencies of the situation.”
Common Rights to Protect
During armed conflicts, a special protection is granted to children and women against sexual violence and abuse. Discrimination and gender inequality are common issues during armed conflicts, particularly against women and girls. However, under IHL and HRL, States are required to protect women and children from these violations.
States must also protect religious and cultural rights, the right of persons to visit their families and individuals from arbitrary detention.