The fundamental guarantees identified in this chapter apply to all civilians in the power of a party to the conflict and who do not take a direct part in hostilities, as well as to all persons who are hors de combat. Because these fundamental guarantees are overarching rules that apply to all persons, they are not sub-divided into specific rules relating to different types of persons. The rules applicable to specific categories of persons are to be found in Chapters 33–39.
The fundamental guarantees listed in this chapter all have a firm basis in international humanitarian law applicable in both international and non-international armed conflicts. Most of the rules set out in this chapter are couched in traditional humanitarian law language, because this best reflects the substance of the corresponding customary rule. Some rules, however, are drafted so as to capture the essence of a range of detailed provisions relating to a specific subject, in particular the rules relating to detention (see Rule 99), forced labour (see Rule 95) and family life (see Rule 105). In addition, references to human rights law instruments, documents and case-law have been included. This was done, not for the purpose of providing an assessment of customary human rights law, but in order to support, strengthen and clarify analogous principles of humanitarian law. While it is the majority view that international human rights law only binds governments and not armed opposition groups,[1] it is accepted that international humanitarian law binds both.
It is beyond the scope of this study to determine whether these guarantees apply equally outside armed conflict although collected practice appears to indicate that they do.
Human rights law applies at all times although some human rights treaties allow for certain derogations in a “state of emergency”.[2] As stated by the International Court of Justice in its advisory opinion in the Nuclear Weapons case:
The protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.[3]
Having recognized the continued applicability of human rights law during armed conflict, the Court analysed the interplay between the application of international humanitarian law and international human rights law in a situation of armed conflict with respect to the non-derogable human right not to be arbitrarily deprived of life. The Court stated that “the test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities”.[4]
In its General Comment on Article 4 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated that:
During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State’s emergency powers. The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if, and to the extent that, the situation constitutes a threat to the life of the nation.[5]
If an armed conflict occurs, a State will need to consider whether the situation is one that amounts to an emergency “threatening the life of the nation”. According to international case-law, this phrase does not require that the whole nation be involved in the emergency but that the essence of the emergency consist of the fact that the normal application of human rights law – taking into account limitations that are allowed in relation to a number of rights for public safety and order – cannot be ensured in view of the nature of the emergency. If that is the case, a State party to a human rights treaty is entitled to declare a state of emergency and inform the appropriate organs, as required by the treaty concerned – or else the State continues to be bound by the whole treaty.[6]
Most of the human rights provisions cited in this chapter are listed in the major human rights treaties as rights that may not be derogated from in any circumstance, and these treaties are widely ratified.[7] However, this chapter also cites some rights that are not listed as “non-derogable” as such in those treaties, not only because these rights are seen as particularly important to both international humanitarian law and human rights law, but also because human rights case-law has in practice treated them as largely non-derogable.
It should be noted that it is the consistent practice of human rights treaty bodies to insist on a strict interpretation of the provision that any derogation measures during a state of emergency be limited “to the extent strictly required by the exigencies of the situation”. The UN Human Rights Committee stressed that:
This requirement relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency … The mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation. In practice this will ensure that no provision of the Covenant, however validly derogated from, will be entirely inapplicable to the behaviour of a State party.[8]
The European and Inter-American Courts of Human Rights have taken the same approach when examining derogation measures from specific rights, stressing the need for safeguards so that the essence of the right is not totally eliminated, as well as the need for proportionality so that the measures are only those strictly required and not more.[9] The African Commission on Human and Peoples’ Rights, in a case concerning killings and disappearances during a civil war, confirmed that no derogation was possible under the African Charter on Human and Peoples’ Rights, and that the government remained responsible for securing the safety and liberty of its citizens and for conducting investigations into murders.[10] In another case, the Commission confirmed that no derogations were possible and referred to Article 27(2) of the African Charter on Human and Peoples’ Rights, which states that the rights “shall be exercised with due regard to the rights of others, collective security, morality and common interest”. The Commission added that this provision must be interpreted as meaning that “limitations must be strictly proportionate with and absolutely necessary for the advantages which follow. Most important, a limitation may not erode a right such that the right itself becomes illusory.”[11]
The UN Human Rights Committee also relied on crimes against humanity and international humanitarian law to establish the impermissibility of derogations, even if the rights concerned were not listed as “non-derogable”. With respect to crimes against humanity, the Human Rights Committee stated that:
If action conducted under the authority of a State constitutes a basis for individual criminal responsibility for a crime against humanity by the persons involved in that action, article 4 of the Covenant cannot be used as a justification that a state of emergency exempted the State in question from its responsibility in relation to the same conduct. Therefore, the recent codification of crimes against humanity … in the Rome Statute of the International Criminal Court is of relevance in the interpretation of Article 4 of the Covenant.[12]
In relation to international humanitarian law, the Human Rights Committee stated that:
Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence.[13]
The above comments show how international humanitarian law and human rights law reinforce each other, not only to reaffirm rules applicable in times of armed conflict, but in all situations.
There is extensive State practice to the effect that human rights law must be applied during armed conflicts. The resolutions adopted at the International Conference on Human Rights in Teheran in 1968 and by the UN General Assembly the same year referred to “human rights in armed conflict”, whereas the content of the resolutions related primarily to international humanitarian law.[14] However, shortly afterwards the approach changed. UN General Assembly Resolution 2675 (XXV) on basic principles for the protection of civilian populations in armed conflicts, adopted in 1970, referred in its preamble to the four Geneva Conventions and also specifically to the Fourth Geneva Convention, as well as to “the progressive development of the international law of armed conflict”. In its first operative paragraph, the resolution stated that “fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict”.[15] Since then, the understanding that both human rights law and international humanitarian law apply in armed conflicts has been confirmed by numerous resolutions condemning violations of both these areas of law in specific armed conflicts and by United Nations investigations into violations of both areas of law in armed conflict situations.
Human rights violations have been condemned, for example, in the context of armed conflicts or military occupations in Afghanistan,[16] Iraq,[17] Sudan,[18] Russian Federation,[19] the former Yugoslavia,[20] and Uganda.[21] The United Nations has also conducted investigations into violations of human rights, for example, in connection with the conflicts in Liberia,[22] and Sierra Leone,[23] Israel’s military occupation of the Palestinian territories,[24] Iraq’s military occupation of Kuwait, [25] and the situation in Afghanistan during and after the Soviet occupation.[26] The UN High Commissioner for Human Rights also has national offices that monitor and promote respect for both human rights and humanitarian law in non-international armed conflicts.[27]
The reports of the investigations into the situation in Afghanistan from 1985 onwards and into the situation in Kuwait during the Iraqi occupation, as well as States’ reaction to them, are examples of the acceptance of the simultaneous applicability of both areas of international law.
The various reports of the UN Special Rapporteurs for Afghanistan referred to aspects of both human rights and humanitarian law, for example, in the report submitted to the UN Commission on Human Rights in 1987.[28] This report was commended in a resolution adopted by consensus by the UN Commission on Human Rights, in which it expressed concern that “the Afghan authorities, with heavy support from foreign troops, are acting … without any respect for the international human rights obligations which they have assumed”, voiced “its deep concern about the number of persons detained for seeking to exercise their fundamental human rights and freedoms, and their detention contrary to internationally recognized standards”, noted “with concern that such widespread violations of human rights … are still giving rise to large flows of refugees” and called on “the parties to the conflict to apply fully the principles and rules of international humanitarian law”.[29]
The report on the Iraqi occupation of Kuwait examined issues such as arbitrary arrest, disappearances, right to life, right to food, right to health in the light of the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, but also of international humanitarian law. In particular, the report states that “there is consensus within the international community that the fundamental human rights of all persons are to be respected and protected both in times of peace and during periods of armed conflict”.[30] Resolutions adopted by the UN General Assembly and by the UN Commission on Human Rights on the situation of human rights in Kuwait under Iraqi occupation in 1991 expressed these bodies’ appreciation of the Special Rapporteur’s report.[31]
Most human rights treaties specify that they are to be applied by States parties wherever they have jurisdiction. However, it should be noted that treaty bodies, and significant State practice, have interpreted this as meaning wherever State organs have effective control.
Article 2 of the International Covenant on Civil and Political Rights specifies that States parties are to “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”. State practice has interpreted this widely. In particular, the UN Special Rapporteur for Iraqi-occupied Kuwait was instructed by States to report on respect for or the violation of human rights by Iraq in Kuwait, even though Kuwait could not be considered to be its “territory” and recognition of any formal jurisdiction did not occur. As mentioned above, the Special Rapporteur analysed the implementation of the provisions of the Covenant by Iraq in Kuwait and his report was welcomed by States.
Article 1 of the European and American Conventions on Human Rights specify that the Conventions are to be applied by States parties to persons within their jurisdiction. This has been interpreted by their treaty bodies as meaning “effective control”. In Loizidou v. Turkey in 1995 concerning the situation in northern Cyprus, the European Court of Human Rights held that a State party is bound to respect the Convention when, as a consequence of military action, it exercises effective control over an area outside its national territory.[32] In the case of Banković against seventeen NATO States, the European Court confirmed that it applied the European Convention extra-territorially when a “State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government”.[33] The same yardstick of effective control to evaluate the applicability of the Inter-American Convention on Human Rights was made by the Inter-American Commission on Human Rights in Alejandre and Others v. Cuba, in which the Commission cited the Loizidou v. Turkey case with approval.[34]
[1] But see, e.g., the practice cited in Christian Tomuschat, “The Applicability of Human Rights Law to Insurgent Movements”, in Horst Fischer et al., Crisis Management and Humanitarian Protection, Berliner Wissenschafts-Verlag, Berlin, 2004.
[2] International Covenant on Civil and Political Rights, Article 4; European Convention on Human Rights, Article 15; American Convention on Human Rights, Article 27 (which also expressly refers to the period of time strictly required). The African Charter on Human and Peoples’ Rights contains no derogation clause, but limitations are possible on the basis of Article 27(2), which states that “the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest”. In practice, this has been strictly interpreted by the African Commission on Human and Peoples’ Rights.
[3] ICJ, Nuclear Weapons case, Advisory Opinion, § 25.
[4] ICJ, Nuclear Weapons case, Advisory Opinion (cited in Vol. II, Ch. 32, § 926).
[5] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights), 24 July 2001, § 3.
[6] For a more complete description of the interpretation of these treaties by the treaty bodies in relation to detention, judicial guarantees and states of emergency, see Louise Doswald-Beck and Robert Kolb, Judicial Process and Human Rights: United Nations, European, American and African Systems, Texts and Summaries of International Case-law, International Commission of Jurists, N.P. Engel Publisher, Kehl, 2004.
[7] The International Covenant on Civil and Political Rights has been ratified by 152 States, the European Convention on Human Rights by 45 States (i.e., all members of the Council of Europe), the African Charter on Human and Peoples’ Rights by 53 States (i.e., all members of the African Union) and the American Convention on Human Rights by 25 States (i.e., all members of the Organization of American States except Antigua and Barbuda, Bahamas, Belize, Canada, Guyana, St. Kitts and Nevis, Santa Lucia, St. Vincent and the Grenadines and the United States; Belize, Canada, Guyana, St. Vincent and the Grenadines and the United States have, however, ratified the International Covenant on Civil and Political Rights). This means that 34 States are not party to either the Covenant nor one of the regional human rights conventions (Antigua and Barbuda, Bahamas, Bahrain, Bhutan, Brunei, China, Cook Islands, Cuba, Indonesia, Kazakhstan, Kiribati, Laos, Malaysia, Maldives, Marshall Islands, Micronesia, Myanmar, Nauru, Niue, Oman, Pakistan, Palau, Papua New Guinea, Qatar, Saint Kitts and Nevis, Saint Lucia, Samoa, Saudi Arabia, Singapore, Solomon Islands, Tonga, Tuvalu, United Arab Emirates and Vanuatu).
[8] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights), 24 July 2001, § 4.
[9] See, e.g., European Court of Human Rights, Fox, Campbell and Hartley, Judgement, 30 August 1990, § 32; Lawless case, Judgement, 1 July 1961, § 37; Brannigan and McBride v. UK, Judgement, 26 May 1993, §§ 43 and 61–65; Aksoy v. Turkey, Judgement, 18 December 1996, §§ 83–84; Inter-American Court of Human Rights, Castillo Petruzzi and Others case, Judgement, 30 May 1999, § 109.
[10] African Commission on Human and Peoples’ Rights, Civil Liberties Organisation v. Chad, Communication No. 74/92, 18th Ordinary Session, Praia, 11 October 1995, 9th Annual Activity Report, §§ 21–22.
[11] African Commission on Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria, Communication Nos. 140/94, 141/94 and 145/95, 26th Ordinary Session, Kigali, 1–15 November 1999, 13th Annual Activity Report 1999–2000, Doc. AHG/222 (XXXVI), Annex V, §§ 41–42.
[12] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights), 24 July 2001, § 12.
[13] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights), 24 July 2001, § 16.
[14] International Conference on Human Rights, Teheran, 12 May 1968, Res. XXIII; UN General Assembly, Res. 2444 (XXIII), 19 December 1968.
[15] UN General Assembly, Res. 2675 (XXV), 9 December 1970 (adopted by 109 votes in favour, none against and 8 abstentions), preamble and § 1.
[16] UN General Assembly, Res. 52/145, 12 December 1997 (adopted by consensus), § 2 (“notes with deep concern the intensification of armed hostilities in Afghanistan”) and § 3 (“condemns the violations and abuses of human rights and humanitarian law, including the rights to life, liberty and security of person, freedom from torture and from other forms of cruel, inhuman or degrading treatment or punishment, freedom of opinion, expression, religion, association and movement”).
[17] UN Commission on Human Rights, Res. 1992/60, 3 March 1992, preamble (§§ 3, 6 and 8) indicating respectively that the resolution is guided by, inter alia, the international covenants on human rights and the Geneva Conventions of 1949, that it expresses “deep concern at the grave violations of human rights and fundamental freedoms during the occupation of Kuwait” and notes “with grave concern the information to the effect that the treatment of prisoners of war and detained civilians does not conform to the internationally recognized principles of humanitarian law”. There are similar statements in UN General Assembly, Res. 46/135, 17 December 1991.
[18] UN Commission on Human Rights, Res. 1996/73, 23 April 1996.
[19] UN Commission on Human Rights, Res. 2000/58, 25 April 2000, preamble (§ 10) (“the need to … observe international human rights and humanitarian law in situations of conflict”) and § 4 (calling on the Russian Federation to “investigate promptly alleged violations of human rights and breaches of international humanitarian law committed in the Republic of Chechnya”).
[20] UN Security Council, Res. 1019, 9 November 1995; UN Security Council, Res. 1034, 21 December 1995; UN General Assembly, Res. 50/193, 22 December 1995; UN Commission on Human Rights, Res. 1996/71, 23 April 1996.
[21] UN Commission on Human Rights, Res. 1998/75, 22 April 1998.
[22] UN Secretary-General, Progress report on UNOMIL, UN Doc. S/1996/47, 23 January 1996.
[23] UN Secretary-General, Progress report on UNOMSIL, UN Doc. S/1998/750, 12 August 1998.
[24] UN Commission on Human Rights, Res. S-5/1, 19 October 2000, § 6 (decided “to establish … a human rights inquiry commission … to gather and compile information on violations of human rights and acts which constitute grave breaches of international humanitarian law by the Israeli occupying Power in the occupied Palestinian territories”). Its first and last preambular paragraphs refer specifically to human rights treaties and to humanitarian law treaties respectively.
[25] UN Commission on Human Rights, Res. 1991/67, 6 March 1991, § 9 (mandated a Special Rapporteur “to examine the human rights violations committed in occupied Kuwait by the invading and occupying forces of Iraq”).
[26] UN Economic and Social Council, Decision 1985/147, 30 May 1985, approving UN Commission on Human Rights Res. 1985/38 of 13 May 1985 “to extend for one year the mandate of the Special Rapporteur on the question of human rights and fundamental freedoms in Afghanistan and to request him to report to the General Assembly … and to the Commission [on Human Rights] … on the situation of human rights in that country”, reprinted in UN Doc. E/1985/85, 1985. The mandate was renewed on many occasions. See UN Doc. A/52/493, 16 October 1997, the introduction to which lists the reports submitted by Special Rapporteurs for Afghanistan between 1985 and 1997.
[27] For example, the field office in Santafé de Bogotá, Colombia, established by agreement in November 1996, which has the mandate to monitor the situation and to “promote respect for and observance of human rights and international humanitarian law in Colombia” (see www.unhchr.ch/html/menu2/5/colombia.htm).
[28] UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in Afghanistan, Report, UN Doc. E/CN.4/1987/22, 19 February 1987.
[29] UN Commission on Human Rights, Res. 1987/58, 11 March 1987, §§ 2, 7, 9 and 10.
[30] UN Commission on Human Rights, UN Doc. E/CN.4/1992/26, 16 January 1992, § 33; see also the introduction to this report by Walter Kälin and Larisa Gabriel, which catalogues and analyses the bases for the applicability of both human rights law and humanitarian law during armed conflicts and occupation, reprinted in Walter Kälin (ed.), Human Rights in Times of Occupation: The Case of Kuwait, Law Books in Europe, Berne, 1994.
[31] UN General Assembly, Res. 46/135, 17 December 1991 (adopted by consensus), § 2; UN Commission on Human Rights, Res. 1991/67, 6 March 1991 (adopted by 41 votes in favour, 1 against and no abstentions), § 1.
[32] European Court of Human Rights, Loizidou v. Turkey, Preliminary Objections, Judgement, 23 March 1995, § 62.
[33] European Court of Human Rights, Banković v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom, Decision as to Admissibility, 12 December 2001, § 71.
[34] Inter-American Commission on Human Rights, Case 11.589, Alejandre and Others v. Cuba, Report No. 86/99, 29 September 1999, §§ 24–25.