Introduction

In recent years, many international lawyers and scholars have noted a substantial convergence between international human rights law (“IHRL”) and international humanitarian law (“IHL”).[1] This convergence is due in large measure to the distressing proliferation of violent internal armed conflicts in many parts of the world.[2] Whether in Cambodia, El Salvador or Sierra Leone, these conflicts have served to highlight the chief inadequacies of IHRL and IHL and have, as a consequence, provoked discussion about how such inadequacies ought to be remedied so as to afford better protection to the millions of victims of such conflicts.[3] Among the chief concerns in this debate is the prevailing confusion about the proper application of IHRL and IHL in the context of such conflicts, since many people continue to think that IHRL only applies in times of peace, and that only IHL applies in times of war. This confusion is compounded by the seeming absence in contemporary international law literature of any straightforward analysis of the interplay between the norms and institutions relevant to IHL and IHRL protections in the context of such conflicts.

Accordingly, this paper attempts to tackle this issue and begin to fill the gap in the legal literature by providing a modest but cogent account of the normative and institutional interplay between IHRL and IHL in the context of internal armed conflicts. The paper itself will be divided into three main sections: (i.) an analysis of the different types of conflict that are recognized under international law; (ii.) an examination of the applicable norms of IHL and IHRL in the context of internal armed conflicts; and (iii.) a brief review of the principal institutions with competency to provide redress for violations of IHL and IHRL committed in the course of such conflicts.

However, before proceeding, a few brief remarks must be made about the scope and design of the paper. First, this paper focuses exclusively on the provisions of IHL that relate to the protection of victims of internal armed conflicts, and does not examine the provisions of IHL that relate to the conduct of hostilities in such conflicts. Second, this paper deals with treaty-based sources of IHL and IHRL, and does not generally examine customary international law or jus cogens norms. Third, this paper focuses exclusively on international legal norms, and does not deal with any comparable protections under regional or national laws. Lastly, as an aid to the reader, this paper contains an appendix that sets out the principal acronyms and abbreviations used throughout the paper, together with their definitions.[4]

Distinguishing Different Types of Conflicts

Before examining which international legal norms are applicable in the context of an internal armed conflict, it is important to distinguish between situations of internal armed conflict and other types of conflict situations. International law recognizes at least four different types of conflict situations, each of which is governed by a different set of legal norms: (i.) situations of tensions and disturbances; (ii.) international armed conflicts; (iii.) wars of national liberation; and (iv.) internal armed conflicts.

Situations of Internal Tensions and Disturbances. The term “internal tensions and disturbances” refers to situations that fall short of armed conflict, but involve the use of force and other repressive measures by a government to maintain or restore public order or public safety.[5] Only IHRL applies in such situations, although it should be noted that governments are permitted to derogate from or limit a restricted set of obligations under IHRL in the context of tensions and disturbances.[6]

International Armed Conflict. The term “international armed conflict” refers to situations that involve two or more states engaged in armed conflict. In such situations, the central provisions of IHL become operative, particularly those contained in the four Geneva Conventions and Protocol I to the Geneva Conventions. In addition, most human rights guarantees remain applicable in such situations, albeit subject to the same types of derogations and limitations permitted to governments in situations of internal tensions and disturbances.

Wars of National Liberation. The term “wars of national liberation” refers 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.”[7] Generally speaking, the same provisions of IHL and IHRL that apply in the context of international armed conflict apply equally in the context of wars of national liberation.[8]

Internal Armed Conflict. The term “internal armed conflict” refers to all armed conflicts that can not be characterized as either international armed conflicts or wars of national liberation.[9] Protocol II provides that internal armed conflicts “must take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement (Protocol II).”[10] The ICTY Appeals Chamber has further refined this definition, inter alia, in its landmark decision, Prosecutor v. Dusko Tadic a/k/a “Dule”.[11]

Applicable International Law in Internal Armed Conflicts

This second section of the paper is divided into three subsections: (i.) an analysis of the principal aims of IHL and IHRL; (ii.) an examination of the principal norms of IHL and IHRL applicable in the context of internal armed conflicts; and (iii.) an assessment of the principal gaps and intersections in the normative protections afforded by IHL and IHRL in such contexts.

i. Principal Aims of IHL and IHRL

Despite significant convergence in recent years, IHL and IHRL remain historically and conceptually distinct categories of international law.

The modern rules of IHL trace their origins at least as far back as the beginnings of Western civilization, although they were not systematically codified until the late nineteenth and early twentieth centuries.[12] Although historically IHL dealt with both jus ad bellum (the laws used to justify resort to war) and jus in bello(the laws applicable in war), as a general rule contemporary IHL is focused only on jus in bello, and divides itself into two main fields of coverage: (i.) laws concerning the conduct of hostilities in the context of armed conflict; and (ii.) laws concerning the protections of victims of such conflicts.[13] With respect to the normative ambitions of IHL, generally speaking it seeks both to prevent as well as punish breaches of its provisions, and accordingly creates specific rights and responsibilities for states as well as individuals.[14] Fundamentally, its ambition is to “humanize” war by placing restraints on its legitimate conduct.

In contrast to IHL, the origins of IHRL are of much more recent vintage. Although the concept of individual rights has figured prominently in moral, legal and political theory for many centuries, the contemporary notion of rights that is captured in IHRL instruments was only formulated and given content during the Second World War and its aftermath.[15] In brief, IHRL establishes a range of fundamental and universal civil, political, economic, social and cultural rights that individuals are entitled to invoke as claims upon the state. Like IHL, IHRL aims to both prevent and punish breaches of its provisions. However, in contrast to parts of IHL (notably the “grave breaches” provisions of the Geneva Conventions and Protocol I), the rules of IHRL generally do not create obligations for non-state actors.[16] On the other hand, unlike IHL, the rules of IHRL apply both in times of peace and war, subject only to the limitations discussed in the prior section.

ii. Principal Norms of IHL and IHRL Applicable in Internal Armed Conflicts

In the context of an internal armed conflict, there are three main sources of IHL protection: (i.) the Martens Clause; (ii.) Common Article 3; and (iii.) Protocol II.[17] The Martens Clause provides that the parties to any armed conflict must act “in accordance with the principles of the law of nations derived from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience.” [18] Common Article 3 builds upon the Martens Clause, and provides that parties to “armed conflict(s) not of an international character” (i.e., internal armed conflicts) must apply certain minimum standards to “persons taking no active part in the hostilities”.[19] In particular, Common Article 3 establishes an affirmative obligation to collect and care for the wounded and sick, and expressly prohibits four specific categories of acts, viz., "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

Protocol II improves upon the admittedly “minimum” protections afforded by both the Martens Clause and Common Article 3, although its coverage is certainly not as broad in scope as the Geneva Conventions or Protocol I. For the purposes of this paper, the most important components of Protocol II are Part II (provisions concerning humane treatment of persons who do not take a direct part in or who have ceased to take part in hostilities), Part III (provisions concerning the wounded, sick, and shipwrecked, and medical and religious personnel) and Part IV (provisions concerning the civilian population). Regarding Part II, Article 4(2) supplements the prohibitions contained in Common Article 3 by adding prohibitions against, inter alia, collective punishment, terrorism, slavery, pillage, and threats to carry out the same acts. Part II also provides for detailed special protections for children (Art. 4(3)) and persons whose liberty has been restricted (Art. 5), as well as setting out a fairly rigorous set of standards regarding the prosecution and punishment of criminal offences related to the conflict (Art. 6). With respect to Part IV, the most relevant provisions for the purposes of this paper are Articles 13(2) (prohibiting attacks or violent threats against civilians), 14 (prohibiting starvation of civilians), 15 (protecting works containing dangerous forces) and 17 (prohibiting forced displacements of civilians).

With respect to the protections afforded by IHRL in the context of internal armed conflicts, there is a much wider variety of relevant and applicable sources to draw from. The primary IHRL instruments are the UN Charter,[20] and the consolidated corpus of IHRL known as the International Bill of Human Rights, which encompasses the Universal Declaration, the ICESCR, the ICCPR, and the Optional Protocol to the ICCPR.[21] In addition to these instruments, there are many other relevant instruments including, inter alia, the Genocide Convention, the Slavery Convention, the Torture Convention, the CRC, the CEDAW, the CERD and the Refugee Convention. There are also a variety of relevant regional instruments including, inter alia, the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter of Human and Peoples’ Rights.

It must be recalled, however, that in the context of an internal armed conflict, governments are entitled to restrict or suspend the exercise of many of the rights established under these IHRL instruments. First, as noted earlier, some IHRL rights are not established as absolute entitlements, but rather as rights subject to reasonable restrictions in order to protect, inter alia, public safety.[22] Second, governments may temporarily suspend certain rights altogether in cases where a treaty contains a separate “derogation clause”. Fortunately, most derogation clauses provide that certain rights – including, inter alia, the right to life, and the prohibitions against torture, slavery, and retroactive application of penal law – cannot be made the subject of derogation.[23] Moreover, certain IHRL treaties do not permit derogations at all.[24]

iii. Gaps and Intersections in Normative Protections

In many cases, the protective provisions of IHL that are applicable in the context of internal armed conflicts have equivalents under IHRL instruments.

First, with respect to the Martens Clause and Common Article 3, various IHRL treaties not only duplicate their content, but also contribute additional specificity. For example, the Common Article 3 prohibitions against violence, degrading treatment and the extra-judicial passing of sentences and carrying out of executions, have more detailed equivalents under IHRL treaties, where they appear as unrestrictable, non-derogable rights.[25] However, in fairness, the Common Article 3 obligation to care for the wounded and sick and the prohibition against the taking of hostages, do not have identical equivalents under the principal IHRL instruments.

Regarding Protocol II, many of its prohibitions also have equivalents under IHRL. However, in contrast to Common Article 3, Protocol II provisions are more comprehensive than their IHRL equivalents. For example, the Protocol II prohibitions against collective punishment, terrorism, slavery, forced starvation and forced displacement all have near equivalents under various IHRL treaties,[26] whereas none of the main IHRL treaties seems to contain anything akin to the Protocol II prohibition against threats to carry out violent acts or the prohibition against pillage. Similarly, the Protocol II provisions that are set out in Article 6 regarding standards for the prosecution and punishment of criminal offences related to armed conflict, all have their unrestrictable, non-derogable equivalents, inter alia, under the ICCPR and the Torture Convention.[27] However, most of the provisions of Article 5 of Protocol II regarding minimum standards of protection for persons whose liberty has been restricted, do not have clear equivalents under IHRL.[28] As for the Protocol II provisions concerning the protection of children, Article 38 of the CRC helpfully provides that state parties must “undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.” Lastly, as to (i.) the provisions of Part III of Protocol II establishing protections for the wounded, sick, and shipwrecked, and for medical and religious personnel, and (ii.) the provisions of Articles 15 and 18 concerning the protection of installations containing dangerous forces and the work of relief societies, no true equivalents to these provisions exist under IHRL instruments.

Thus, by and large, the provisions of IHL and IHRL tend to support and reinforce each other, with IHL filling in some critical gaps in the IHRL regime. However, it is nonetheless the case that the norms of IHRL and IHL alone fail to ensure an adequate level of normative protection to victims of internal armed conflicts. First, the IHRL and IHL norms that are applicable in the context of internal armed conflicts generally apply to state actors only, and therefore generally have no application to individuals or non-state actors such as members of guerilla forces.[29] Second, Protocol II is notoriously difficult to apply both because the threshold for material application of Protocol II is considered quite high, and because states that are engaged in internal armed conflicts almost always refuse to accept that the Protocol applies to their situation.[30] Thus Protocol II, which was established in order to supplement the very rudimentary protections of Common Article 3, often proves a very unreliable source of protection for victims of internal armed conflict.

Fortunately, these apparent deficiencies of IHRL and IHL have largely been overcome as a result of the establishment of the category of crimes against humanity, which spans the divide between IHRL and IHL. First, as it is currently defined in both the ICTR Statute and the Rome Statute, the definition of crimes against humanity has no nexus to armed conflict at all[31] — although it is important to note that both statutes nevertheless require a nexus with “a widespread or systematic attack” directed against a civilian population.[32] Second, unlike both IHRL and IHL, the category of crimes against humanity applies both to state and non-state actors alike. Thus, in the result, the protections provided by IHRL and IHL, when combined with the supplementary protections afforded by the category of crimes against humanity, appear to offer a substantial level of international legal protection for victims of internal armed conflicts.

Institutions for Redress of IHL and IHRL Violations

In order to realize their full potential, IHRL and IHL instruments require institutions with jurisdiction to both interpret and enforce their provisions. Accordingly, this section offers a brief review of the principal national, foreign, and international institutions — whether judicial or quasi-judicial — that are currently available to victims of internal armed conflicts.[33]

National Judicial and Quasi-Judicial Institutions. National institutions represent a very useful forum for redress of violations of IHRL and IHL. There are at least five potential types of national proceedings that victims should consider: (i.) criminal prosecutions; (ii.) civil suits; (iii.) military trials; (iv.) immigration hearings; and (v.) investigatory commissions. First, if the relevant provisions of IHL and IHRL have been implicitly or expressly implemented into national law, victims should consider attempting to hold alleged offenders of IHRL or IHL criminally or civilly liable in national courts.[34] Second, victims may wish to consider the possibility of bringing members of the national armed forces before a national military court for violations of IHL, provided that, inter alia, the relevant provisions of Common Article 3 or Protocol II bind the accused soldier. A third possible option is to bring an action before a national immigration tribunal for the denaturalization or deportation of someone alleged to have breached the relevant provisions of IHL or IHRL.[35] Finally, a victim may have the possibility of providing testimony before a national truth commission or similar commission of inquiry. These commissions sometimes have the ability to recommend or establish sanctions for individuals found to have committed violations of IHRL or IHL during a prior internal armed conflict.[36]

Foreign Judicial and Quasi-Judicial Institutions. The national institutions of foreign countries represent another useful forum for redress of violations of IHRL and IHL, particularly where an accused has fled the national jurisdiction. There are at least three relevant types of proceedings to be considered in this regard: (i.) criminal prosecutions; (ii.) extradition proceedings; and (iii.) civil suits. Regarding criminal prosecutions, victims may be able to invoke IHRL (and to a lesser extent IHL) in a foreign court against an accused by relying on the principle of universal jurisdiction.[37] Another alternative for victims may be to rely on IHRL to secure the extradition of an accused to the national jurisdiction or to another foreign jurisdiction.[38] A final possibility worth considering is the initiation of a civil suit against an alleged offender of IHRL or IHL. Perhaps the best known jurisdiction for this type of proceeding is the United States, where the Alien Tort Claims Act, 28 U.S.C. § 1350, and the Torture Victims Protection Act, 28 U.S.C. § 1350, have frequently and successfully been invoked by alien plaintiffs.[39]

International Judicial and Quasi-Judicial Institutions.With regard to international criminal jurisdiction for individual violations of IHRL and IHL committed in the course of internal armed conflicts, the most promising development is the adoption of the Rome Statute and the prospect of a permanent ICC. However, until the ICC comes into being, the ICTY an ICTR remain the only available venues for international criminal jurisdiction. Therefore, for those victims who are not in a position to avail themselves of the jurisdiction of the ICTY and ICTR, the next best option for some form of international redress is the UN human rights system.[40] Generally speaking, this system is divided into two institutional categories: (i.) conventional mechanisms (i.e., treaty monitoring bodies);[41] and (ii.) non-conventional mechanisms.[42] There is also the option of attempting to garner support for Security Council action, whether in the form of a resolution to intervene in an ongoing conflict, or to establish further ad hoc tribunals in the course of or in the aftermath of specific conflicts. Finally, victims should consider enlisting the direct support of other relevant international actors, such as the ICRC and the UN High Commissioner for Human Rights.

ConclusionCONCLUSION

The purpose of this paper was to attempt to clarify the normative and institutional interplay between IHRL and IHL in the context of internal armed conflicts. This involved an analysis of the different types of conflict recognized under international law, an examination of the applicable IHL and IHRL norms that apply in the context of internal armed conflicts, and a review of the principal institutions available to victims who choose to seek redress for IHL and IHRL violations committed in the context of such conflicts.

Although there are clearly inconsistencies and gaps between the protections afforded by IHRL and IHL, there is nevertheless a strong case to be made that, by and large, the fields of IHRL and IHL complement and reinforce each other. Unfortunately, there remains a very wide discrepancy between the scale of abuses being perpetrated in situations of internal armed conflict, and the underlying promise of IHRL and IHL standards. Bridging that gap in the twenty-first century will certainly require creativity and intelligence — but more importantly it will require a renewed effort to uphold the established standards of IHRL. For it is only by vigilantly upholding the standards of IHRL that war and all its accompanying evils can ever hope to be prevented.

Appenxdix – Glossary of Acronyms and Abbreviations

CEDAW” means the Convention on the Elimination of All Forms of Discrimination against Women, adopted by General Assembly Resolution 34/180, U.N. GAOR, thirty-fourth session, Supp. No. 46, at 193, United Nations Document A/34/46 (1980), reprinted in 19 I.L.M. 33 (1980), entered into force 3 September 1981.

CERD” means the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature at New York, 7 March 1966, 660 U.N.T.S. 195, entered into force 4 January 1969.

CRC” means the Convention on the Rights of the Child, adopted by General Assembly Resolution 44/25, U.N. GAOR, forty-fourth session, Supp. No. 49, at 166, United Nations document A/44/49 (1990), reprinted in 28 I.L.M. 1448 (1989), entered into force 2 September 1990. “Common Article 3” means the provisions of Article 3 common to each of the four Geneva Conventions.

Geneva Conventions” means the four Geneva Conventions of 12 August 1949, namely: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85; Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135; Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287.

Genocide Convention” means the Convention on the Prevention and Punishment of the Crime of Genocide, General Assembly Resolution 260 A (III), adopted 9 December 1948, 78 U.N.T.S. 277.

ICC” means the International Criminal Court.

ICJ” means the International Court of Justice.

ICRC” means the International Committee of the Red Cross.

ICTR” means the International Criminal Tribunal for Rwanda.

ICTR Statute” means the Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda, SC Res. 955, UN SCOR, 49th Sess., Res. & Dec., UN Doc. S/INF/50 (1994).

ICTY” means the International Criminal Tribunal for Yugoslavia.

ICCPR” means the International Covenant on Civil and Political Rights, General Assembly Resolution 2200 A (XXI) adopted 16 December 1966, U.N. GAOR, twenty-first session, Supp. No. 16, at 52, United Nations document A/6316 (1967).

ICESCR” means the International Covenant on Economic, Social and Cultural Rights, General Assembly Resolution 2200 A (XXI), adopted 16 December 1966, U.N. GAOR, twenty-first session, Supp. No. 16, at 49, United Nations Document A/6316 (1967), 993 U.N.T.S. 3.

IHL” means the accumulated rules of conventional international humanitarian law.

IHRL” means the accumulated rules of conventional international human rights law.

Martens Clause” means the clause contained in the preamble to the Hague Regulations of 1907 concerning the Laws and Customs of War on Land, and later included in the four Geneva Conventions (Art. 63 of the First, Art. 62 of the Second, Art. 142 of the Third, and Art. 158 of the Fourth).

Optional Protocol to the ICCPR“ means Optional Protocol to the International Covenant on Civil and Political Rights, General Assembly Resolution 2200 A (XXI) adopted 16 December 1966, U.N. GAOR, twenty-first session, Supp. No. 16, at 59, United Nations document A/6316 (1966), 999 U.N.T.S. 302.

Protocol I” means Additional Protocol I Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3.

Protocol II” means Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 U.N.T.S. 609.

Refugee Convention” means the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, 189 U.N.T.S. 150, entered into force 22 April 1954, ratified by 124 States on 17 March 1995, and the subsequent Protocol Relating to the Status of Refugees Protocol Relating to the Status of Refugees, New York, 31 January 1967, 606 U.N.T.S. 267.

Rome Statute” means the Rome Statute of the ICC, July 17, 1998, UN Doc. A/CONF.183/9*, reprinted in 37 I.L.M. 999 (1998).

Slavery Convention” means the Slavery Convention (1926), 60 L.N.T.S. 253, and the subsequent Protocol Amending the Slavery Convention, signed at Geneva on 25 September 1926 (1955), 212 U.N.T.S. 277.

Torture Convention” means the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly Resolution 39/46, U.N. GAOR, thirty-ninth session, Supp. No. 51, at 197, United Nations document A/39/51 (1985), entered into force 26 June 1987.

Universal Declaration” means the Universal Declaration of Human Rights, General Assembly Resolution 217 A (III), United Nations document A/810 (1948). "UN" means the United Nations.

UN Charter” means the Charter of the United Nations, 26 June 1945, 59 Stat. 1031, T.S. 993.

Notes

[1] See, e.g., Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT’L L. 554 (1995); Paul Kennedy & George J. Andreopolous, The Laws of War: Some Concluding Reflections, in THE LAWS OF WAR: CONSTRAINTS ON WARFARE IN THE WESTERN WORLD (Michael Howard et al. eds., 1994), at 220; and STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW (1997), at 4-15.

[2] According to the ICRC, approximately 80% of the victims of armed conflicts since 1945 have been victims of internal armed conflicts. Source: ICRC website (www.icrc.org).

[3] Perhaps the most significant attempt to tackle this problem is that of the United Nations pursuant to Resolution 1997/21 of the Commission on Human Rights, in which the Commission requested the U.N. Secretary-General to prepare “an analytical report on the issue of fundamental standards of humanity”. The Secretary-General’s report, entitled “Minimum Humanitarian Standards”, was submitted to the 1998 Commission as document E/CN.4/1998/87. Previous attempts to address this issue include: (i.) UN Security Council Resolution 237 (stressing that human rights must be respected by all the parties to a conflict), which was welcomed by the UN General Assembly under Resolution 2252 (1965), and has often been recalled and reaffirmed; and (ii.) the International Conference on Human Rights in Teheran in 1968 (the International Year for Human Rights), which declared that human rights principles must prevail during periods of armed conflict.

[4] Notwithstanding the inclusion of the appendix, in this paper it is assumed that the reader already has above-average familiarity with the acronyms and abbreviations used throughout the paper.

[5] A non-exhaustive list of examples of situations of tensions and internal disturbances are provided in Article 1(2) of Protocol II to the Geneva Conventions, and include “riots, isolated and sporadic acts of violence and other acts of a similar nature.” Article 1(2) expressly provides that Protocol II does not apply to situations of tensions and disturbances.

[6] Many IHRL treaties, including the ICCPR (Articles 12, 13, 18, 21 and 22) and the CRC (Articles 10, 14 and 15), contain limitation clauses that permit governments to lawfully restrict the free exercise of certain rights in such situations. For example, a government may legitimately impose restrictions on freedom of movement in an environ in which riots are occurring without actually violating the right to freedom of movement of affected persons. However, such restrictions are in general only permissible to the extent that they are (i.) prescribed by law, and (ii.) strictly necessary for achieving their legitimate purposes. Some IHRL treaties also contain derogation clauses which permit states to temporarily derogate from (i.e., suspend) certain guarantees in times of genuine public emergency. However, treaties containing derogation clauses typically list several rights that cannot be suspended even in times of emergency.

[7] Article 1(4) of Protocol I to the Geneva Conventions.

[8] Id.It should be noted, however, that different legal norms would apply in a state that is not party to Protocol I, since the Geneva Conventions do not cover wars of national liberation.

[9] Article 1(1) of Protocol II to the Geneva Conventions.

[10] Id. In contrast to Protocol II, Common Article 3 to the Geneva Conventions does not provide a definition of internal armed conflicts, but simply refers to them as “armed conflict(s) not of an international character occurring in the territory of one of the High Contracting Parties”. Thus, Common Article 3 appears to establish a threshold for application that is lower than that found in Protocol II. For an analysis of the conditions of application of Common Article 3, see paragraphs 215-220 of the ICJ decision in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986 I.C.J. 14 (June 27).Also, for a lucid assessment of the difficulties in establishing when Protocol II applies, see Arturo Carillo, Hors de Logique: Contemporary Issues in International Humanitarian Law as Applied to Internal Armed Conflict, 15 AM. U. INT’L L. REV. 1, at 66-97.

[11] No. IT-94-1-AR72, Appeal on Jurisdiction, paras. 66-70 (October 2, 1995), 35 I.L.M. 32 (1996). Among other things, the ICTY Appeals Chamber provided useful clarifications regarding the appropriate geographic and temporal frames of reference for internal armed conflicts.

[12] See, generally, THE LAWS OF WAR: CONSTRAINTS ON WARFARE IN THE WESTERN WORLD (Michael Howard et al. eds., 1994).

[13] William J. Fenrick, Should Crimes Against Humanity Replace War Crimes?, 37 COLUM. J. TRANSNAT’L L. 767 (1999), at 770.

[14] See, generally, the ICRC website (www.icrc.org).

[15] See LOUIS HENKIN, THE AGE OF RIGHTS (1990), at “Introduction: The Human Rights Idea”.

[16] There have of course always been exceptions to this general rule. For example, Article 4 of the Genocide Convention provides for individual responsibility for genocide, a provision that has finally been given life under the statutes of the ICTY, ICTR, and ICC. Another such exception is Article 4 of the Torture Convention. However, these examples are the exceptions that prove the rule.

[17] Other relevant sources not discussed in this paper include, inter alia, a wide range of UN Security Council and General Assembly resolutions. Also, needless to say, if and when the ICC comes into being, the Rome Statute (which codifies, supplements, and criminalizes much of Protocol II in its Article 8(2)(c-f)) will provide an additional source of IHL protection in the context of internal armed conflicts.

[18] It is worth noting that the Martens Clause has acquired customary character pursuant to a variety of judgments by international bodies, including the ICJ’s 1949 decision in The Corfu Channel Case, Merits, I.C.J. Reports 1949, at 22, and its 1986 decision in Military Activities, supra note 10, at 114.

[19] Common Article 3 provides that such persons include “members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”. It also provides that such persons must 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.”

[20] All states members of the United Nations are mandated by Articles 55 and 56 of the UN Charter to "promote … universal respect for, and observance of, human rights and fundamental freedoms for all …". These Articles mark the foundation of IHRL.

[21] There is of course a Second Optional Protocol to the ICCPR now, which seeks to abolish the death penalty. See Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, General Assembly Resolution 44/128 adopted on 15 December 1989, U.N. GAOR, 44th session, Supp. No. 49, at 206, United Nations document 14668, 999 U.N.T.S. 302.

[22] See supra note 6.

[23] See, e.g., Article 4(2) of the ICCPR (“No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this [Article]”). It should also be noted that all such derogation clauses, including Article 4 of the ICCPR, stipulate that that the derogating states may not adopt measures that would be “inconsistent with their other obligations under international law”. Some have argued that this stipulation means that states that have ratified IHL treaties such as the Geneva Conventions would be precluded in circumstances of armed conflict from suspending rights whose enjoyment is guaranteed by such IHL treaties. Although this reasoning is persuasive, state practice does not appear to support this interpretation. For an analysis of derogation clauses and their purported consequences, see Thomas Buergenthal, To Respect and Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS (Louis Henkin ed., 1981).

[24] For example, none of the ICESCR, the CERD, the CRC, or the Torture Convention contains a derogation clause.

[25] See, e.g., Articles 6 (right to life), 7 (prohibition against torture and degrading treatment), and 15 (prohibition against extra-judicial and retroactive punishments) of the ICCPR.

[26] See, e.g., Articles 3, 4, 5, 6, 11 and 13 of the Universal Declaration, Article 2 of the Genocide Convention, Articles 1 and 5 of the Torture Convention, and the Slavery Convention generally.

[27] The only Protocol II provision without an IHRL equivalent is the amnesty provision set out in Article 6(5)) which, regrettably, is as often used as an international legal justification for amnesties of gross violations of IHRL and IHL as it is used in accordance with its intended purpose, viz., to encourage states to grant amnesties for combat activities otherwise subject to prosecution as violations of domestic criminal law. See Douglas Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 LAW AND CONTEMPORARY PROBLEMS 199 (1996), at 218.

[28] It should be noted, however, that some of the provisions of Article 5(1) of Protocol II have rough IHRL equivalents, inter alia, under the ICESCR (in particular under Articles 7 (just conditions of work) and 12 (health)) and under the Universal Declaration (in particular under Articles 18 (freedom of religion) and 25 (basic needs)).

[29] Fortunately, this description is becoming less accurate with the passage of time. First, the main provisions of Common Article 3 and Protocol II now seem to apply to both state and non-state actors as a result of the ICTR Statute (Art. 4) [and the Rome Statute (Art. 25)], and as a result of the ICTY Appeal Chamber’s Tadic decision, supra note 2. In Tadic, at paras. 127 and 134, the Tribunal held that Common Article 3 and Protocol II establish individual responsibility as a matter of customary IHL. This is an encouraging development for those who always lamented the fact that Protocol II did not include a regime of “grave breaches” similar to that contained in Protocol I. Second, as noted earlier, the Genocide Convention and the Torture Convention already apply both to state and non-state actors.

[30] For an excellent summary of the longstanding debates among international lawyers and scholars regarding these two assertions – i.e., regarding the reputedly high threshold for material application of Protocol II, and regarding the general unwillingness of states to acknowledge application of Protocol II to their domestic circumstances – see Carillo, supra note 10, at 67-90. Although Carillo does not believe that these two obstacles are insurmountable, his own review of both the debates and the empirical data on various country situations, makes clear that his is a minority viewpoint.

[31] The original definition of crimes against humanity in the Charter of the International Military Tribunal in Nuremburg contained an important limiting principle, viz., that the Tribunal could only assert jurisdiction over crimes against humanity committed “before or during (the) war”. For a detailed account of the evolution of the concept of crimes against humanity, with particular emphasis on the gradual elimination of the war nexus requirement, see Beth Van Schaak, The Definition of Crimes Against Humanity: Resolving the Incoherence, 37 COLUM. J. TRANSNAT’L L. 787.

[32] See Article 7 of the Rome Statute, and Article 3 of the ICRC Statute. As defined in these statutes, “crimes against humanity” include, inter alia, the acts of murder, extermination, enslavement, deportation, wrongful imprisonment, torture, and persecution.

[33] Although not reviewed here, there are a number of regional judicial and quasi-judicial institutions that serve as useful forums for redress of violations of the regional equivalents of IHRL instruments. Notable institutions in this regard include the Inter-American Court and Commission of Human Rights, the European Court and Commission of Human Rights, and the African Commission on Human and Peoples’ Rights.

[34] It should be noted that there are various other important factors that will determine the admissibility of IHRL or IHL claims in national criminal or civil proceedings. For example, victims may find that claims based on IHRL or IHL norms may fail because such norms do not take priority in the face of conflicting norms of national law, or because domestic law does not permit them to be directly invoked by or on behalf of victims in the first place. For a helpful review of these and other legal hurdles a victim could face in the context of a national proceeding, see John Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 AM. J. INT’L L. 310.

[35] See RATNER, supra note1, at 212-214.

[36] Such commissions are being used with increased frequency. For an overview of the results of various such commissions, see (i.) John Dugard, Retrospective Justice: International Law and the South African Model, in JAMES McADAMS, TRANSITIONAL JUSTICE AND THE RULE OF LAW IN NEW DEMOCRACIES (1997), and (ii.) CARLOS NINO, RADICAL EVIL ON TRIAL (1996).

[37] Based on existing national practice, the establishment of universal jurisdiction, inter alia, for genocide and crimes against humanity, seems almost universally to be considered permissible at this stage in the evolution of international law. See generally RATNER, supra note 1, at 156-158.

[38] For example, Article 7 of the Torture Convention requires states parties to prosecute or extradite persons accused of having committed torture as defined in the Convention. This Article was famously invoked in the recent Pinochet proceedings. See Regina v. Bow Street Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte, [1999] 2 W.L.R. 827 (H.L.). Regrettably, no treaty exists that would oblige states to extradite alleged perpetrators of crimes against humanity.

[39] See, generally, BETH STEPHENS & MICHAEL RATNER, INTERNATIONAL HUMAN RIGHTS LITIGATION IN U.S. COURTS (1996). The reader should note that although the United States has the most developed system for pursuing civil redress for IHRL and IHL violations, the legal systems of other countries (particularly countries based on the civil law tradition) are starting to be tested for similar purposes. RATNER, supra note 1, at 204.

[40] Although the UN human rights system does not have formal jurisdictional competence to interpret and apply IHL norms, many of its constitutive bodies (including the U.N. General Assembly and the U.N. Commission on Human Rights) have chosen to rely on IHL norms in seeking to protect victims of armed conflict. See, e.g., David Weissbrodt, The Role of International Organizations in the Implementation of Human Rights and Humanitarian Law in Situations of Armed Conflict, 21 VANDERBILT J. TRANS. L. 313 (1988).

[41] The most important treaty monitoring bodies are the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, and the Committee on the Elimination of Discrimination against Women. Individuals or groups can lodge complaints with these bodies against their governments for violations of the ICCPR, the CEDAW, the Torture Convention or the CERD, assuming their government is (i.) a party to the Optional Protocol to the ICCPR (in the case of the Human Rights Committee) or the Optional Protocol to the CEDAW (in the case of the Committee on the Elimination of Discrimination Against Women), or (ii.) has accepted the relevant body’s jurisdiction under Article 22 of the Torture Convention (in the case of the Committee Against Torture) or Article 14 of the CERD (in the case of the Committee on the Elimination of Racial Discrimination).

[42] The UN Commission on Human Rights and the Economic and Social Council have established a variety of extra-conventional mechanisms which have been entrusted either to (i.) working groups, composed of experts acting in their individual capacity, or (ii.) independent individuals, variously designated special rapporteurs, special representatives, or independent experts. The mandates given to these entities include the obligation to examine, monitor and publicly report on either (i.) human rights situations in specific countries or territories, or (ii.) major human rights themes, such as the use of torture. It should also be noted that special urgent action procedures have been established in connection with certain of these mechanisms including, for example, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.

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One Response to International Law and Internal Armed Conflicts: Clarifying the Interplay between Human Rights and Humanitarian Protections

  1. [...] [4] M. Freeman, ‘International Law and International Armed Conflict: Clarifying the Interplay between Human Rights and Humanitarian Protections’, The Journal of Humanitarian Assistance, julio 2000,  http://sites.tufts.edu/jha/archives/152 [...]

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