Practice Relating to Rule 105. Respect for Family Life
Section A. General
Hague Regulations (1899)
Article 46 of the 1899 Hague Regulations provides: “Family honour and rights … must be respected.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 46.
Hague Regulations (1907)
Article 46 of the 1907 Hague Regulations provides: “Family honour and rights … must be respected.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 46.
Geneva Convention IV
Article 27, first paragraph, of the 1949 Geneva Convention IV provides: “Protected persons are entitled, in all circumstances, to respect for their … family rights”.
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 27, first para.
European Convention on Human Rights
Article 8 of the 1950 European Convention on Human Rights provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Article 8.
International Covenant on Civil and Political Rights
Article 17(1) of the 1966 International Covenant on Civil and Political Rights provides: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” Article 17(2) provides: “Everyone has the right to protection of the law against such interference or attacks.”
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 17(1) and (2).
International Covenant on Civil and Political Rights
Article 23(1) of the 1966 International Covenant on Civil and Political Rights provides: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 23(1).
International Covenant on Economic, Social and Cultural Rights
Article 10(1) of the 1966 International Covenant on Economic, Social and Cultural Rights provides: “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society.”
International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 10(1).
American Convention on Human Rights
Article 11 of the 1969 American Convention on Human Rights provides:
1. Everyone has the right to have his honor respected and his dignity recognized.
2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.
3. Everyone has the right to the protection of the law against such interferences or attacks.
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 11.
American Convention on Human Rights
Article 17(1) of the 1969 American Convention on Human Rights provides: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.”
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 17(1).
African Charter on Human and Peoples’ Rights
Article 18 of the 1981 African Charter on Human and Peoples’ Rights provides:
1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.
2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, Article 18(1) and (2).
Protocol of San Salvador
Article 15(1) of the 1988 Protocol of San Salvador provides: “The family is the natural and fundamental element of society and ought to be protected by the State, which should see to the improvement of its spiritual and material conditions.”
Additional Protocol to the American Convention on Human Rights in the Area of Social, Economic and Cultural Rights, adopted by the Eighteenth Regular Session of the OAS General Assembly, Res. 907 (XVIII-O/88), San Salvador, 17 November 1988, Article 15(1).
Convention on the Rights of the Child
Article 9 of the 1989 Convention on the Rights of the Child provides: “Parties shall ensure that a child shall not be separated from his or her parents against their will.”
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 9.
Convention on the Rights of the Child
Article 16 of the 1989 Convention on the Rights of the Child provides:
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 16.
African Charter on the Rights and Welfare of the Child
Article 25(2)(b) of the 1990 African Charter on the Rights and Welfare of the Child provides: “States Parties … shall take all necessary measures to trace parents or relatives [of children] where separation is caused by internal and external displacement arising from armed conflicts.”
African Charter on the Rights and Welfare of the Child, adopted by the Sixteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Res. 197 (XVI), Monrovia, 17–20 July 1990, OAU Doc. CAB/LEG/24.9/49 (1990), Article 25(2)(b).
Lieber Code
Article 37 of the 1863 Lieber Code provides: “The United States acknowledge and protect, in hostile countries occupied by them, … the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.”
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 37.
Brussels Declaration
Article 38 of the 1874 Brussels Declaration provides: “Family honour and rights … must be respected.”
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 38.
Oxford Manual
Article 49 of the 1880 Oxford Manual provides: “Family honour and rights … must be respected.”
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 49.
American Declaration on the Rights and Duties of Man
Article V of the 1948 American Declaration on the Rights and Duties of Man provides: “Everyone has the right to the protection of the law against abusive attacks upon his … family life”.
American Declaration on the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Res. XXX, Bogotá, 2 May 1948, Article V.
American Declaration on the Rights and Duties of Man
Article VI of the 1948 American Declaration on the Rights and Duties of Man provides: “Every person has the right to establish a family, the basic element of society, and to receive protection therefor.”
American Declaration on the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Res. XXX, Bogotá, 2 May 1948, Article VI.
Universal Declaration of Human Rights
Article 12 of the 1948 Universal Declaration of Human Rights provides:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 12.
Universal Declaration of Human Rights
Article 16(3) of the 1948 Universal Declaration of Human Rights provides: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 16(3).
Cairo Declaration on Human Rights in Islam
Article 5(b) of the 1990 Cairo Declaration on Human Rights in Islam provides that society and the State “shall ensure family protection and welfare”.
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 5(b).
Guiding Principles on Internal Displacement
Principle 17 of the 1998 Guiding Principles on Internal Displacement provides:
1. Every human being has the right to respect of his or her family life.
2. To give effect to this right for internally displaced persons, family members who wish to remain together shall be allowed to do so.
Guiding Principles on Internal Displacement, presented to the UN Commission on Human Rights by the Special Representative of the UN Secretary-General on Internally Displaced Persons, UN Doc. E/CN.4/1998/53/Add.2, 11 February 1998, Principle 17(1) and (2).
EU Charter of Fundamental Rights
Article 7 of the 2000 EU Charter of Fundamental Rights provides: “Everyone has the right to respect for his or her private and family life.”
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 7.
Australia
Australia’s Defence Force Manual (1994) provides: “An obligation is imposed on all parties to deal humanely with protected persons. The person, honour, family rights, religious convictions, manners and customs of protected persons shall be respected.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 953.
Australia
Australia’s LOAC Manual (2006) states with regard to the general treatment of protected persons in both their own territory and occupied territory that “family rights … of protected persons shall be respected”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.58; see also § 12.36.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada
Canada’s Code of Conduct (2001) provides that civilians in a foreign land are entitled in all circumstances to respect for their family rights.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 4, § 2.
Canada
Canada’s LOAC Manual (2001), in its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Provisions common to the territories of the parties to the conflict and to occupied territories”, the manual provides:
1118. Humane treatment of protected persons
1. The person, honour, family rights, religious conventions and practices, and manners and customs of protected persons must in all circumstances be respected.
They must be humanely treated and protected against all acts or threats of violence, and against insults and public curiosity.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1118.
In its chapter on rights and duties of occupying powers, the manual also states:
1. It is the duty of the occupant to see that the lives of the inhabitants are respected, [and] that their domestic peace and honour are not disturbed …
2. In all circumstances protected persons are entitled to respect for their person, their honour, [and] their family rights.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1222.1–2.
Canada
Rule 4 of Canada’s Code of Conduct (2005) instructs Canadian Forces (CF) personnel: “Treat all civilians humanely and respect civilian property”.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 4.
The Code of Conduct further explains:
Military operations in foreign lands expose CF personnel to civilian populations that differ markedly from our own. However different or unusual a foreign land may appear, these civilians are in all circumstances entitled to respect for their persons and property, their honour, their family rights, their religious convictions and practices, and their manners and customs. In your daily interaction with the civilian population, they must at all times be humanely treated and shall not be subjected to acts of violence, threats, or insults. Women and children in particular must not be subjected to rape, enforced prostitution, and any form of indecent assault. All civilians, subject to favourable considerations based on sex, health or age, must be treated with the same consideration and without any adverse distinction based in particular on race, religion or political opinion.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 4, § 2.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states: “Women [who have been] the victims of crimes or abuse of power … have the right to … protection of their private life and to have … the security of their family guaranteed”.
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 23.
The manual also states with regard to “children in the justice system” that “minors have the right to stay in contact with their families”.
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, pp. 25–26.
Dominican Republic
The Dominican Republic’s Military Manual (1980) instructs soldiers: “However different or unusual a foreign land may seem to you, remember to respect its people and their honour, family rights … and customs.”
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 10.
El Salvador
El Salvador’s Human Rights Charter of the Armed Forces recalls: “The Universal Declaration of Human Rights establishes … the protection of the family”.
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional, Departamento de Derecho Humanitario, undated, p. 2.
Germany
Germany’s Military Manual (1992) provides:
Civilians who do not take part in hostilities shall be respected and protected. They are entitled to respect for their persons, their honour, their family rights, their religious convictions, and their manners and customs.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 502 (protection of the civilian population); see also § 532 (belligerent occupation).
Italy
Italy’s IHL Manual (1991) provides that, in occupied territory, civilians have the right “to respect for their person, honour, family rights, religious convictions and practices, manners and customs”.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 41(a).
Kenya
Kenya’s LOAC Manual (1997) provides: “Family and private honour … are to be respected.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 2.
Mexico
Mexico’s Army and Air Force Manual (2009) states: “The States party to the [1949] Geneva Conventions undertake to: … respect human beings and their person, … [and] their family rights.
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 80(B); see also § 104.
Netherlands
The Military Manual (2005) of the Netherlands states: “Protected persons are entitled, in all circumstances, to respect for … their family rights”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0806.
New Zealand
New Zealand’s Military Manual (1992) provides that “family rights … of protected persons must in all circumstances be respected”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1114.
The manual further states: “According to the [1949 Geneva Convention IV], protected persons are entitled in all circumstances to respect for … their family rights”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1321(2).
Nicaragua
Nicaragua’s Military Manual (1996) states: “Victims of an armed conflict have the right in any circumstances to respect for … their family rights”.
Nicaragua, Manual de Comportamiento y Proceder de las Unidades Militares y de los Miembros del Ejército de Nicaragua en Tiempo de Paz, Conflictos Armados, Situaciones Irregulares o Desastres Naturales, Ejército de Nicaragua, Estado Mayor General, Asesoría Jurídica del Nicaragua, 1996, Article 14(30).
Philippines
The Handbook on Discipline (1989) of the Philippines provides for the punishment of abduction and separation of family members.
Philippines, Handbook on Discipline, Armed Forces of the Philippines, 1989, p. 16.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states that, in occupied territory, the “family [life]… of the civilian population shall be respected.”
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 75.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
…
Prohibited Acts against Persons not taking an Active Part in Armed Conflicts
- General Rules
- Protected persons are entitled to respect for:
…
- Their family rights[.]
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 13 and 17.
The manual also states:
2.4 Specifically Protected Persons and Objects:
…
Civilians
…
[1949] Geneva Convention IV article 27 provides for general protective provisions. This article determines that protected persons are, in all circumstances, entitled to respect for their persons, honour, family rights, religious convictions and practices and their manners and customs. …
…
Internment
…
Grouping of Internees
…
Throughout the duration of their internment, members of the same family, and in particular parents and children, shall be lodged together in the same place of internment, except when separation of a temporary nature is necessitated for reasons of employment or health or for the purposes of enforcement of penal and disciplinary sanctions. Internees may request that their children who are left at liberty without parental care shall be interned with them. Wherever possible, interned members of the same family shall be housed in the same premises and given separate accommodation from other internees, together with facilities for leading a proper family life.
…
2.7 Special Protection: Occupied Territories
…
Rights of Protected Persons in Occupied Territories
Residents of occupied territories are entitled, in all circumstances, to the respect of the[ir]
…
- Family rights[.]
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 112, 113, 116, 127–128 and 155–156.
Spain
Spain’s LOAC Manual (1996) provides: “Family rights shall be respected.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 2.7.c.(3).
Spain
Spain’s LOAC Manual (2007) states that, during occupation, “family honour and rights … must be respected”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.7.c.(3).
Sweden
Sweden’s IHL Manual (1991) provides: “As a general rule, civilians within an occupied area shall, as protected persons, under all circumstances enjoy respect as to person, honour, family rights, religious convictions and practice, and manners and custom.”
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 6.1.3, p. 122.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states that in situations of occupation, “according to the Civilian Convention, protected persons are entitled in all circumstances to respect for … their family rights”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 547.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states: “In all circumstances, the … family rights … of protected persons should be respected.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 9, p. 34, § 9.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) provides in its chapter on the protection of civilians in the hands of a party to the conflict that the “family rights, religious convictions and practices, and the manners and customs of protected persons must in all circumstances be respected”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.21.
United States of America
The US Field Manual (1956) reproduces Article 27 of the 1949 Geneva Convention IV. The manual also uses the same wording as Article 46 of the 1907 Hague Regulations.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 266 and 380.
United States of America
The US Air Force Pamphlet (1976) recalls that the 1949 Geneva Convention IV has provisions on the treatment of protected persons, including “to respect … family rights”. It also refers to Article 46 of the 1907 Hague Regulations, which provides for respect for “family honour”.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, §§ 14-4 and 14-6(a).
United States of America
The US Soldier’s Manual (1984) instructs soldiers: “However different or unusual a foreign land may seem to you, remember to respect its people and their honor, family rights … and customs”.
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 21.
Zimbabwe
Zimbabwe’s Code of Conduct for Combatants (1993) states: “As a State party to the [1949] Geneva Conventions … your country is bound by these treaties … [t]he States party to the Geneva Conventions pledge to … [r]espect the family rights … of the individual.”
Zimbabwe, Code of Conduct for Combatants, Joint publication of the Zimbabwe Defence Forces and the International Committee of the Red Cross Regional Delegation in Harare, 1993, pp. 14–16.
Afghanistan
Afghanistan’s Law on Juvenile Rehabilitation and Training Centres (2009) states regarding the detention of juveniles:
Article 12. [Detention] of children who are suspected, accused [or] convicted to imprisonment
…
(2) The children who are [sentenced] to imprisonment …will [be] kept in the nearest provincial juvenile centres … to their family [home].
…
Article 24. [Contact] with family.
…
[The persons] in charge of [a] juvenile’s justice rehabilitation centre … [have the] duty … to [ensure that juveniles, whether] suspected, accused [or] sentenced to imprisonment [are able] to communicate with their family, [through] visit, … mail or other ways that should not disturb [the] facility’s regulation.
…
Article 25 …
When a juvenile, [whether] suspected, accused [or] sentenced to imprisonment [dies], his or her body … , after … examination [by a forensic medical doctor], … will be delivered to the juvenile’s relative [next-of-kin] …
…
Article 26. Leave.
To keep proper communication between juveniles, [whether] suspected, accused [or] sentenced to imprisonment and their families, … external environment and society, … juveniles … may be granted [up to] 20 days leave.
[Juveniles may be granted] 7 days [leave] to [attend] the burial of [a] relative.
Afghanistan, Law on Juvenile Rehabilitation and Training Centres, 2009, Articles 12(2) and 24–26.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 27 of the Geneva Convention IV, is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1).
Lithuania
Lithuania’s Criminal Code (1961), as amended in 1998, punishes as a “violation of the norms of international humanitarian law in time of war, an armed conflict or under the conditions of occupation or annexation: … separation of children from their parents or guardians”.
Lithuania, Criminal Code, 1961, as amended in 1998, Article 336.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions …is liable to imprisonment.
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 10
“War crime” shall also mean any of the following acts committed in armed conflicts:
…
10° intentionally separating children from their parents or persons responsible for their safety and well-being;
…
Article: 11
Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:
1° the death penalty or life imprisonment where he has committed a crime provided for in point 1°, 4°, 5°, 6°, 9° or 10° of Article 10 of this law.
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Articles 10–11.
Venezuela
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the [1966] International Covenant on Civil and Political Rights and Article 27(2) of the [1969] American Convention on Human Rights, the guarantee of the [following] rights must not be restricted:
…
3. The [right to] the protection of the family.
Venezuela, Law on the State of Emergency, 2001, Article 7(3).
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the obligation to respect family life.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]Greece
In its judgment in Prefecture of Voiotia case in 1997, Greece’s Court of First Instance of Leivadia stated:
[T]he occupant is obliged to respect, during the administration of the occupied land, the legislation of the latter (article 43 of the fourth Hague Convention 1907) as well as international law, including the provisions of the Regulation of Laws and Customs of War on Land, annexed to the fourth Hague Convention (19th October 1907) … especially the provision of article 46, according to which “family honour and rights … must be respected”. This rule is generally accepted as constituting peremptory international customary law (jus cogens).
Greece, Court of First Instance of Leivadia, Prefecture of Voiotia case, Judgment of 30 October 1997.
Israel
In its judgment in the Beit Sourik Village Council case in 2004, Israel’s High Court of Justice stated:
The approach of this Court is well anchored in the humanitarian law of public international law. This is set forth in Regulation 46 of the Hague Regulations and Article 46 of the Fourth Geneva Convention. Regulation 46 of the Hague Regulations provides:
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.
Article 27 of the Fourth Geneva Convention provides:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof … However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.
These rules are founded upon a recognition of the value of man and the sanctity of his life. See Physicians for Human Rights, at para. 11. Interpreting Article 27 of the Fourth Geneva Convention, Pictet writes:
Article 27 … occupies a key position among the articles of the Convention. It is the basis of the Convention, proclaiming as it does the principles on which the whole “Geneva Law” is founded. It proclaims the principle of respect for the human person and the inviolable character of the basic rights of individual men and women … the right of respect for the person must be understood in its widest sense: it covers all the rights of the individual, that is, the rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers, it includes, in particular, the right to physical, moral and intellectual integrity – one essential attribute of the human person.
Israel, High Court of Justice, Beit Sourik Village Council case, Judgment, 30 June 2004, § 35.
Denmark
In 2006, in a report on the detention and transfer of persons in Afghanistan in 2002, Denmark’s Ministry of Defence stated: “Civilians enjoy comprehensive protection after the Fourth Geneva Convention. Article 27 states that protected persons are under all circumstances entitled to respect for … their family rights.”
Denmark, Report on Factual and Legal Matters Relating to Danish Forces’ Detention and Transfer of Persons in Afghanistan in the First Half of 2002, Ministry of Defence, 13 December 2006, p. 4.
Germany
In 2005, in its Seventh Human Rights Policy Report, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
With the 1998 guidelines on the handling of crises related to internally displaced persons (“Guiding Principles on Internal Displacement”) by the then Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, Francis Deng, the international community has a practice-oriented document, which summarizes existing standards on the protection of internally displaced persons and gives further recommendations. Although these guiding principles are not a binding instrument under international law, their acceptance by States, international organizations and NGOs has continued to grow over the past years, so that now they are virtually regarded as customary international law.
Germany, Federal Government, Seventh Human Rights Policy Report, 17 June 2005, pp. 97–98.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
Report on US Practice, 1997, Chapter 5.3.
UN Commission on Human Rights
In a resolution adopted in 1978 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, condemned certain Israeli policies and practices in the occupied territories, including “[t]he interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1 (XXXIV) A, 14 February 1978, § 4(i), voting record: 23-2-7.
UN Commission on Human Rights
In a resolution adopted in 1979 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, condemned certain Israeli policies and practices in the occupied territories, including “[t]he interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1 (XXXV) A, 21 February 1979, § 3(i), voting record: 20-2-9.
UN Commission on Human Rights
In a resolution adopted in 1980 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, condemned certain Israeli policies and practices in the occupied territories, including “[t]he interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1 (XXXVI) A, 13 February 1980, § 3(h), voting record: 20-4-6.
UN Commission on Human Rights
In a resolution adopted in 1981 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, condemned certain Israeli policies and practices in the occupied territories, including “[t]he interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1 (XXXVII) A, 11 February 1981, § 7(i), voting record: 31-3-8.
UN Commission on Human Rights
In a resolution adopted in 1982 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, strongly condemned certain Israeli practices in the occupied territories, including “[t]he interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1982/1 A, 11 February 1982, § 5(i), voting record: 32-3-7.
UN Commission on Human Rights
In a resolution adopted in 1983 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, strongly condemned certain Israeli practices in the occupied territories, including “[t]he interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1983/1 A, 15 February 1983, § 5(i), voting record: 29-1-13.
UN Commission on Human Rights
In a resolution adopted in 1984 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, strongly condemned certain Israeli practices, including the “interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1984/1 A, 20 February 1984, § 7(j), voting record: 29-1-11.
UN Commission on Human Rights
In a resolution adopted in 1985 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, strongly condemned certain Israeli practices, including the “interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1985/1 A, 19 February 1985, § 8(j), voting record: 28-5-8.
UN Commission on Human Rights
In a resolution adopted in 1986 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights, bearing in mind the 1949 Geneva Convention IV and “other relevant conventions and regulations”, strongly condemned certain Israeli practices in the occupied territories, including the “interference with … family rights and customs”.
UN Commission on Human Rights, Res. 1986/1 A, 20 February 1986, § 8(j), voting record: 29-7-6.
UN Commission on Human Rights
In a resolution adopted in 2003 on the rights of the child, the UN Commission on Human Rights recognized that “the family is the basic unit of society and as such should be strengthened”.
UN Commission on Human Rights, Res. 2003/86, 25 April 2003, preamble, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on the rights of the child, the UN Commission on Human Rights recognized that “the family is the basic unit of society and as such should be strengthened”.
UN Commission on Human Rights, Res. 2004/48, 20 April 2004, preamble, voting record: 52-1-0.
UN Commission on Human Rights
In a resolution adopted in 2005 on the rights of the child, the UN Commission on Human Rights:
Recognizing that the family is the basic unit of society and as such should be strengthened; …
…
16. Urges all States to continue to intensify efforts in order to ensure the implementation of the right of the child, irrespective of the child’s status, to birth registration, preservation of identity, including nationality, and family relations, as recognized by law;
…
(c) Ensuring that a child shall not be separated from his or her parents against their will, except when consistent with the Convention on the Rights of the Child.
UN Commission on Human Rights, Res. 2005/44, 19 April 2005, preamble and § 16(c), voting record: 52-1-0.
UNHCR Executive Committee
In 1997, in a Conclusion on Refugee Children and Adolescents, the UNHCR Executive Committee stated that the role of the family as the fundamental group of society should be protected in accordance with human rights and humanitarian law.
UNHCR, Executive Committee, Conclusion No. 84 (XLVIII): Refugee Children and Adolescents, 20 October 1997, § b(i).
No data.
International Conference of the Red Cross (1986)
The 25th International Conference of the Red Cross in 1986 adopted a resolution on protection of children in armed conflict in which it recommended that “according to the Geneva Conventions and the two Additional Protocols, all necessary measures be taken to preserve the unity of the family and to facilitate the reuniting of families”.
25th International Conference of the Red Cross, Geneva, 23–31 October 1986, Res. IX, § 5.
International Conference of the Red Cross and Red Crescent (1995)
The 26th International Conference of the Red Cross and Red Crescent in 1995 adopted a resolution on protection of the civilian population in period of armed conflict in which it demanded that “all parties to armed conflict avoid any action aimed at, or having the effect of, causing the separation of families in a manner contrary to international humanitarian law”.
26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Res. II, § D(a).
Human Rights Committee
In its General Comment No. 16 on Article 17 of the 1966 International Covenant on Civil and Political Rights in 1988, the Human Rights Committee held:
1. Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.
…
4. The expression “arbitrary interference” is also relevant to the protection of the right provided for in article 17. In the Committee’s view the expression “arbitrary interference” can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.
5. Regarding the term “family”, the objectives of the Covenant require that for purposes of article 17 this term be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned. The term “home” in English, “manzel” in Arabic, “zhùzhái” in Chinese, “domicile” in French, “zhilische” in Russian and “domicilio” in Spanish, as used in article 17 of the Covenant, is to be understood to indicate the place where a person resides or carries out his usual occupation. In this connection, the Committee invites States to indicate in their reports the meaning given in their society to the terms “family” and “home”.
Human Rights Committee, General Comment No. 16 (Article 17 of the 1966 International Covenant on Civil and Political Rights), 8 April 1988, §§ 1 and 4–5.
European Court of Human Rights
In several cases, the European Court of Human Rights addressed the issue of family unity and held that Article 8 of the 1950 European Convention on Human Rights included a right for parents to have measures taken with a view to them being reunited with their children and an obligation for national authorities to take such measures. According to the Court, preventing parents from living with their children amounted to interference with the right to respect for family life.
European Court of Human Rights, Eriksson case, Judgment, 22 June 1989, p. 26, § 71; Andersson v. Sweden, Judgment, 25 February 1992, p. 30, § 91; Rieme v. Sweden, Judgment, 22 April 1992, §§ 55, 56 and 69; Olsson v. Sweden, Judgment, 27 November 1992, pp. 35–36, § 90; Hokkanen v. Finland, Judgment, 23 September 1994; Gül v. Switzerland, Judgment, 19 February 1996, p. 14.
European Court of Human Rights
In Johnston and Others v. Ireland in 1986 dealing with a couple prevented from marrying one another for reasons related to the domestic law on divorce of Ireland, the European Court of Human Rights stated:
55. The principles which emerge from the Court’s case-law on Article 8 (art. 8) [of the 1950 European Convention on Human Rights] include the following.
(a) By guaranteeing the right to respect for family life, Article 8 (art. 8) presupposes the existence of a family …
(b) Article 8 (art. 8) applies to the “family life” of the “illegitimate” family as well as to that of the “legitimate” family …
(c) Although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. However, especially as far as those positive obligations are concerned, the notion of “respect” is not clear-cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals …
56. In the present case, it is clear that the applicants, the first and second of whom have lived together for some fifteen years … , constitute a “family” for the purposes of Article 8 (art. 8). They are thus entitled to its protection, notwithstanding the fact that their relationship exists outside marriage.
European Court of Human Rights, Johnston and Others v. Ireland, Judgment (Merits and just satisfaction), 18 December 1986, §§ 55–56.
European Court of Human Rights
In B. v. UK in 1987, the European Court of Human Rights stated:
60. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care. It follows – and this was not contested by the Government – that the Authority’s decisions resulting from the procedures at issue amounted to interferences with the applicant’s right to respect for her family life.
61. According to the Court’s established case-law:
(a) an interference with the right to respect for family life entails a violation of Article 8 (art. 8) [of the 1950 European Convention on Human Rights] unless it was “in accordance with the law”, had an aim or aims that is or are legitimate under Article 8 § 2 (art. 8-2) and was “necessary in a democratic society” for the aforesaid aim or aims …
(b) the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued …
(c) although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life …
(d) in determining whether an interference is “necessary in a democratic society” or whether there has been breach of a positive obligation, the Court will take into account that a margin of appreciation is left to the Contracting States.
European Court of Human Rights, B. v. UK, Judgment, 8 July 1987, §§ 60–61.
European Court of Human Rights
In Moustaquim v. Belgium in 1991, the European Court of Human Rights stated:
34. Mr Moustaquim submitted that his deportation by the Belgian authorities interfered with his family and private life. He relied on Article 8 (art. 8) of the [1950 European Convention on Human Rights] …
35. The Government expressed doubts as to whether the applicant and his parents had any real family life at the time he was deported, as family ties were, at the least, strained in view of the number of occasions on which the youth had run away and had been imprisoned. They did not, however, expressly dispute that Article 8 (art. 8) was applicable.
36. Mr Moustaquim lived in Belgium, where his parents and his seven brothers and sisters also resided. He had never broken off relations with them. The measure complained of resulted in his being separated from them for more than five years, although he tried to remain in touch by correspondence. There was accordingly interference by a public authority with the right to respect for family life guaranteed in paragraph 1 of Article 8 (art. 8-1).
European Court of Human Rights, Moustaquim v. Belgium, Judgment (Merits and just satisfaction), 18 February 1991, §§ 34–36.
European Court of Human Rights
In Vermeire v. Belgium in 1991, the European Court of Human Rights stated:
25. … There was nothing imprecise or incomplete about the rule which prohibited discrimination against Astrid Vermeire compared with her cousins Francine and Michel, on the grounds of the “illegitimate” nature of the kinship between her and the deceased [i.e. her grandparents] …
…
For these reasons, the Court
…
2. Holds unanimously that the applicant’s exclusion from the estate of Camiel Vermeire [i.e. her grandfather] violated Article 14 in conjunction with Article 8 (art. 14+8) of the [1950 European Convention on Human Rights].
European Court of Human Rights, Vermeire v. Belgium, Judgment (Merits), 29 November 1991, § 25 and Disposition 2.
Eritrea-Ethiopia Claims Commission
In its Civilians Claims (Eritrea’s Claim) partial award, the Eritrea-Ethiopia Claims Commission, considering the principle of respect for family life, stated:
International humanitarian law imposes clear burdens on belligerents with respect to … the integrity of families. Article 27 of [1949] Geneva Convention IV, for example, provides that all protected persons are entitled in all circumstances to respect for their family rights. However, both international humanitarian law and human rights law … also recognize that, regrettably, absolute protection of the family cannot be assured in wartime. While Article 9 of the [1989] Convention on the Rights of the Child states that children should not be separated from their parents against their will, it also recognizes separation may result in the course of armed conflict due to detention or deportation of one or both parents.
Eritrea-Ethiopia Claims Commission, Civilians Claims, Eritrea’s Claim, Partial Award, 17 December 2004, § 154.
[footnote in original omitted]No data.
Sudan People’s Liberation Movement (SPLM)
The SPLM Human Rights Charter provides: “Children have the right not to be separated from their families and to be reunited with them.”
SPLM, Human Rights Charter, May 1996, § 6.
