Rule 105. Respect for Family Life
Rule 105. Family life must be respected as far as possible.
Volume II, Chapter 32, Section Q.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The obligation to respect the family rights of persons in occupied territory was already recognized in the Lieber Code, the Brussels Declaration and the Oxford Manual.[1] It was codified in the Hague Regulations.[2] This obligation is extended to all protected civilians in the Fourth Geneva Convention.[3] The Fourth Geneva Convention also provides that, as far as possible, interned families must be given “facilities for leading a proper family life”.[4] Although not articulated in these general terms in treaty rules relating to non-international armed conflicts, this rule is the basis of the more specific rules relating to family unity in treaty provisions governing such conflicts.[5]
Several military manuals refer in general terms to the duty to respect family rights, often without specific reference to the Fourth Geneva Convention.[6] There is also extensive practice in the form of post-conflict agreements and resolutions of the United Nations and other international organizations that stresses the need to respect family life.[7]
The protection of the family as the “natural and fundamental group unit of society” or, alternatively, “natural unit and basis of society” is provided for in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and in the three regional human rights conventions.[8] Under the American Convention on Human Rights, the protection due to the family cannot be dispensed with.[9] Such protection is also required under other international instruments.[10]
Collected practice shows that respect for family life requires, to the degree possible, the maintenance of family unity, contact between family members and the provision of information on the whereabouts of family members.
(i) Maintenance of family unity. The duty to avoid, as far as possible, separation of members of a family is provided for in the Fourth Geneva Convention in the context of transfers or evacuations of civilians by an occupying power.[11] The commentary to Rule 131 on the treatment of displaced persons includes practice requiring respect for family unity in general terms not limited to displacement.
In addition, there is significant practice relating to the obligation to facilitate the reunion of dispersed families. The Fourth Geneva Convention provides that “each Party to the conflict shall facilitate enquiries made by members of families dispersed owing to the war, with the object of renewing contact with one another and of meeting, if possible”.[12] Additional Protocols I and II provide that parties to a conflict must facilitate the reunion of families dispersed as a result of armed conflict.[13] This obligation is set forth in several military manuals and in the legislation of several States.[14] It is supported by official statements, including a statement of the United States which is not party to the Additional Protocols.[15] A number of agreements, laws and policies have been adopted by States involved in armed conflict and facing the problem of dispersed families, which seek to implement the principle of family reunification.[16] The obligation to facilitate the reunification of dispersed families is also supported by several resolutions adopted by consensus by International Conferences of the Red Cross and Red Crescent.[17] The importance of family reunification in human rights law, in particular in relation to reuniting children with their parents, is reflected in treaties and other international instruments, case-law and resolutions.[18]
There is also practice relating to the maintenance of family unity during deprivation of liberty. The Fourth Geneva Convention requires that “whenever possible, interned members of the same family shall be housed together in the same premises and given separate accommodation from other internees”.[19] Further practice is referred to in the commentaries to Rules 119 and 120, which require that members of the same family be accommodated together during deprivation of liberty.
(ii) Contact between family members. The Fourth Geneva Convention provides that “all persons in the territory of a Party to the conflict, or in territory occupied by it, shall be enabled to give news of a strictly personal nature to members of their families, wherever they may be, and to receive news from them”.[20] Rule 125 requires that persons deprived of their liberty be allowed to correspond with their families, subject to reasonable conditions relating to frequency and the need for censorship by authorities. Rule 126 requires that persons deprived of their liberty must be allowed to receive visitors to the degree practicable. In addition to the practice cited in the commentaries to Rules 125 and 126, human rights case-law confirms that the right to family life includes the right of detainees to communicate with their families through correspondence and receiving visits, subject to reasonable restrictions concerning timing and censorship of mail.[21]
(iii) Provision of information on the whereabouts of family members. There is extensive practice on the measures to be taken by authorities to account for missing persons and on the duty to inform families of the whereabouts of persons when such information is available. Deliberately withholding such information has been found to amount to inhuman treatment in human rights case-law. This practice is to be found in the commentary to Rule 117 which provides that each party to a conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and to provide their family members with any information it has on their fate.
In addition, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the American Convention on Human Rights guarantee the right to be free from arbitrary, unlawful or abusive interference with one’s family life.[22] This is also provided for in other international instruments.[23] The European Convention on Human Rights, meanwhile, contains a general right to respect for “private and family life” which may not be interfered with by a public authority
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.[24]
The UN Human Rights Committee’s General Comment on Article 17 of the International Covenant on Civil and Political Rights states that interference with family life will be “arbitrary” if the interference is not in accordance with the provisions, aims and objectives of the Covenant and if it is not “reasonable in the particular circumstances”.[25]
In its General Comment on Article 17 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated that, for the purposes of the Article, the term family should be interpreted as including “all those comprising the family as understood in the society of the State party concerned”.[26] The European Court of Human Rights includes the relationship between husband and wife and the children dependent on them within the notion of family.[27] It has also, depending on the circumstances and in particular when children are involved, included brothers and sisters, persons living together outside marriage and grandparents.[28]
[1] Lieber Code, Article 37 (cited in Vol. II, Ch. 32, § 3923); Brussels Declaration, Article 38 (ibid., § 3924); Oxford Manual, Article 49 (ibid., § 3925).
[2] Hague Regulations, Article 46 (ibid., § 3905).
[3] Fourth Geneva Convention, Article 27, first paragraph (ibid., § 3907).
[4] Fourth Geneva Convention, Article 82, third paragraph.
[5] See Additional Protocol II, Article 4(3)(b) (adopted by consensus) (reunion of families temporarily separated) (cited in Vol. II, Ch. 32, § 3915); Additional Protocol II, Article 5(2)(a) (adopted by consensus) (accommodation of men and women of the same family in detention or internment) (cited in Vol. II, Ch. 37, § 106); Convention on the Rights of the Child, Article 37(c) (accommodation of children with their parents during deprivation of liberty) (ibid., § 149).
[6] See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 32, § 3935), Canada (ibid., § 3936), Dominican Republic (ibid., § 3937), El Salvador (ibid., § 3938), Germany (ibid., § 3939), Kenya (ibid., § 3941), Nicaragua (ibid., § 3943), Spain (ibid., § 3945) and United Kingdom (ibid., § 3948).
[7] See commentary below and also the practice referred to in the commentaries to Rules 117, 119–120, 125–126 and 131.
[8] International Covenant on Civil and Political Rights, Article 23(1) (ibid., § 3910); International Covenant on Economic, Social and Cultural Rights, Article 10(1) (ibid., § 3911); American Convention on Human Rights, Article 17(1) (ibid., § 3913); Protocol of San Salvador, Article 15(1) (ibid., § 3917); African Charter on Human and Peoples’ Rights, Article 18 (ibid., § 3916); see also UNHCR, Executive Committee, Conclusion No. 84 (XLVIII): Refugee Children and Adolescents (ibid., § 3968).
[9] American Convention on Human Rights, Article 17 (ibid., § 3913) and Article 27(2).
[10] See, e.g., Universal Declaration on Human Rights, Article 16(3) (cited in Vol. II, Ch. 32, § 3927); American Declaration on the Rights and Duties of Man, Article VI (ibid., § 3929); Cairo Declaration on Human Rights in Islam, Article 5(b) (ibid., § 3930).
[11] Fourth Geneva Convention, Article 49, third paragraph (cited in Vol. II, Ch. 38, § 541).
[12] Fourth Geneva Convention, Article 26 (cited in Vol. II, Ch. 32, § 3906).
[13] Additional Protocol I, Article 74 (adopted by consensus) (“in every possible way”) (ibid., § 3914); Additional Protocol II, Article 4(3)(b) (adopted by consensus) (“all appropriate steps”) (ibid., § 3915).
[14] See, e.g., the military manuals of Argentina (ibid., §§ 3933–3934), New Zealand (ibid., § 3942), Spain (ibid., § 3945) and United States (ibid., § 3952) and the legislation of Angola (ibid., § 3953), Colombia (ibid., § 3955) and Philippines (ibid., § 3959).
[15] See, e.g., the statements of the Republic of Korea (ibid., § 3961) and United States (ibid., § 3962).
[16] See, e.g., the Quadripartite Agreement on Georgian Refugees and Internally Displaced Persons (ibid., § 3922), the legislation of Angola (ibid., § 3953), Colombia (ibid., § 3955) and Philippines (ibid., § 3959) and the practice of the Republic of Korea (ibid., § 3961).
[17] 19th International Conference of the Red Cross, Res. XX; 25th International Conference of the Red Cross, Res. IX (ibid., § 3970); 26th International Conference of the Red Cross and Red Crescent, Res. II (ibid., § 3971).
[18] See, e.g., Convention on the Rights of the Child, Article 10 (ibid., § 3919) and Article 22(2) (ibid., § 3921); Guiding Principles on Internal Displacement, Principle 17(3) (ibid., § 3931); UN General Assembly, Res. 51/77 (ibid., § 3964), Res. 52/107 (ibid., § 3964) and Res. 53/128 (ibid., § 3964); UN Commission on Human Rights, Res. 1997/78 (ibid., § 3965) and Res. 1998/76 (ibid., § 3965); UNHCR Executive Committee, Conclusion No. 24 (XXXII) (ibid., § 3967); Committee on the Rights of the Child, Concluding observations on the report of Myanmar (ibid., § 3973); European Court of Human Rights, Eriksson case, Andersson v. Sweden, Rieme v. Sweden, Olsson v. Sweden, Hokkanen v. Finland and Gül v. Switzerland (ibid., § 3974).
[19] Fourth Geneva Convention, Article 82, third paragraph.
[20] Fourth Geneva Convention, Article 25, first paragraph (cited in Vol. II, Ch. 37, § 468).
[21] See, e.g., African Commission on Human and Peoples’ Rights, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Communication Nos. 143/95 and 150/96, 15 November 1999, § 29; Inter-American Commission on Human Rights, Report on the situation of human rights in Peru, 12 March 1993, p. 29; European Court of Human Rights, Branningan and McBride v.UK, Judgment, 26 May 1993, § 64.
[22] International Covenant on Civil and Political Rights, Article 17(1) (“arbitrary or unlawful interference”) (cited in Vol. II, Ch. 32, § 3909); Convention on the Rights of the Child, Article 16(1) (“arbitrary or unlawful interference”) (ibid., § 3920); American Convention on Human Rights, Article 11 (“arbitrary or abusive interference”) (ibid., § 3912).
[23] See, e.g., Universal Declaration on Human Rights, Article 12 (“arbitrary interference”) (ibid., § 3926); American Declaration on the Rights and Duties of Man, Article V (“abusive attacks”) (ibid., § 3928); EU Charter of Fundamental Rights, Article 7 (“respect for his or her private and family life”) (ibid., § 3932).
[24] European Convention on Human Rights, Article 8(2) (ibid., § 3908).
[25] UN Human Rights Committee, General Comment No. 16 (Article 17 of the International Covenant on Civil and Political Rights) (ibid., § 3972); see also Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc. OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., 22 October 2002, § 55.
[26] UN Human Rights Committee, General Comment No. 16 (Article 17 of the International Covenant on Civil and Political Rights) (cited in Vol. II, Ch. 32, § 3972).
[27] European Court of Human Rights, B. v. UK (ibid., § 3976) (the Court stated that “the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life”).
[28] European Court of Human Rights, Johnston and Others v. Ireland (ibid., § 3975), Moustaquim v. Belgium, (ibid., § 3978) and Vermeire v. Belgium (ibid., § 3978).
