Rule 87. Civilians and persons hors de combat must be treated humanely.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The obligation to treat prisoners of war humanely was already recognized in the Lieber Code, the Brussels Declaration and the Oxford Manual and was codified in the Hague Regulations.[1] The requirement of humane treatment for civilians and persons hors de combat is set forth in common Article 3 of the Geneva Conventions, as well as in specific provisions of all four Conventions.[2] This requirement is recognized as a fundamental guarantee by both Additional Protocols I and II.[3]
The requirement of humane treatment is set forth in numerous military manuals.[4] It has been reaffirmed in national and international case-law.[5]
Human rights law is similarly based on the principle of humane treatment of persons. In particular, human rights instruments stress the requirement of humane treatment and respect for human dignity of persons deprived of their liberty.[6] In its General Comment on Article 4 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee declared Article 10, which requires that persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person, to be non-derogable and therefore applicable at all times.[7]
The actual meaning of “humane treatment” is not spelled out, although some texts refer to respect for the “dignity” of a person or the prohibition of “ill-treatment” in this context.[8] The requirement of humane treatment is an overarching concept. It is generally understood that the detailed rules found in international humanitarian law and human rights law give expression to the meaning of “humane treatment”. The rules in Chapters 33–39 contain specific applications of the requirement of humane treatment for certain categories of persons: the wounded, sick and shipwrecked, persons deprived of their liberty, displaced persons, women, children, the elderly, the disabled and infirm. However, these rules do not necessarily express the full meaning of what is meant by humane treatment, as this notion develops over time under the influence of changes in society. This is shown, for example, by the fact that the requirement of humane treatment has been mentioned in international instruments since the mid-19th century, but the detailed rules which stem from this requirement have developed since then, and may do so still further.
[1] Lieber Code, Article 76 (cited in Vol. II, Ch. 32, § 215); Brussels Declaration, Article 23, third paragraph (ibid., § 216); Oxford Manual, Article 63 (ibid., § 217); Hague Regulations, Article 4, second paragraph (ibid., § 206).
[2] Geneva Conventions, common Article 3 (ibid., § 1); First Geneva Convention, Article 12, first paragraph (ibid., § 143); Second Geneva Convention, Article 12, first paragraph (ibid., § 144); Third Geneva Convention, Article 13 (ibid., § 208); Fourth Geneva Convention, Articles 5 and 27, first paragraph (ibid., §§ 82–83).
[3] Additional Protocol I, Article 75(1) (adopted by consensus) (ibid., § 2); Additional Protocol II, Article 4(1) (adopted by consensus) (ibid., § 3).
[4] See, e.g., the military manuals of Argentina (ibid., §§ 9–10 and 90–91), Australia (ibid., §§ 11 and 92–93), Belgium (ibid., §§ 12 and 94), Benin (ibid., §§ 13 and 95), Burkina Faso (ibid., § 14), Cameroon (ibid., §§ 15–16), Canada (ibid., § 17), Colombia (ibid., §§ 18–20), Congo (ibid., § 21), Croatia (ibid., § 22), Dominican Republic (ibid., § 23), France (ibid., §§ 24–26), Germany (ibid., § 27), India (ibid., § 28), Kenya (ibid., § 30), Madagascar (ibid., § 31), Mali (ibid., § 32), Morocco (ibid., § 33), Netherlands (ibid., §§ 34–35), New Zealand (ibid., § 36), Nicaragua (ibid., § 37), Peru (ibid., § 38), Philippines (ibid., § 39), Romania (ibid., § 40), Russian Federation (ibid., § 41), Senegal (ibid., §§ 42–43), Sweden (ibid., § 44), Switzerland (ibid., § 45), Togo (ibid., § 46), United Kingdom (ibid., § 47) and United States (ibid., §§ 48–51) and the reported practice of Israel (ibid., § 29).
[5] See, e.g., Chile, Appeal Court of Santiago, Videla case (ibid., § 57); Russian Federation, Constitutional Court, Situation in Chechnya case (ibid., § 58); ICJ, Nicaragua case (Merits), Judgment (ibid., § 69); ICTY, Aleksovski case, Judgment (ibid., § 70); Inter-American Commission on Human Rights, Case 10.559 (Peru) (ibid., § 71).
[6] See American Declaration on the Rights and Duties of Man, Article XXV (ibid., § 218); International Covenant on Civil and Political Rights, Article 10(1) (ibid., § 211); American Convention on Human Rights, Article 5(1) (ibid., § 212); European Prison Rules, Rule 1 (ibid., § 219); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 1 (ibid., § 220); Basic Principles for the Treatment of Prisoners, § 1 (ibid., § 221).
[7] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 321).
[8] Texts which use the term “dignity” include, e.g., International Covenant on Civil and Political Rights, Article 10(1) (ibid., § 211); American Convention on Human Rights, Article 5(2) (ibid., § 212); African Charter on Human and Peoples’ Rights, Article 5; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 1 (ibid., § 220); Basic Principles for the Treatment of Prisoners, § 1 (ibid., § 221); UN Secretary-General’s Bulletin, Section 8 (ibid., § 224); the military manuals of France (ibid., § 246), Germany (ibid., § 248) Peru (ibid., § 38) and United States (ibid., §§ 122 and 284); the legislation of Paraguay (ibid., § 55) and Uruguay (ibid., § 294); UN Human Rights Committee, General Comment No. 21 (Article 10 of the International Covenant on Civil and Political Rights) (ibid., § 320) and General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 321); ICTY, Aleksovski case (ibid., § 70); ICRC, Communication to the Press No. 01/47 (ibid., § 80). Texts which refer to the prohibition of “ill-treatment” include, e.g., IMT Charter (Nuremberg), Article 6 (ibid., § 982); the military manual of Romania (ibid., § 111); UN Commission on Human Rights, Res. 1989/67, 1990/53, 1991/78 and 1992/68 (ibid., § 311) and Res. 1991/67 and 1992/60 (ibid., § 312); ICRC, Memorandum on Respect for International Humanitarian Law in Angola (ibid., § 343) and Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise (ibid., § 344).