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Human Rights and International Humanitarian Law

Human rights are inherent in human beings, they are a must for a person to live a dignified life. International humanitarian law plays a prominent role in ensuring rule of law during armed conflict. IHL emphasizes the protection of the human rights of civilians, prisoners, and wounded soldiers.

Human Rights

According to the United Nations:
human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights without discrimination.

Human rights are also referred to as Fundamental Rights or basic rights or natural rights. They are known as fundamental rights because, without them, a human being cannot live a dignified life. Human rights are being guaranteed by the State to the people with some exceptions. Even at the international level, treaties and conventions are signed to lay an obligation on governments to promote human rights in their jurisdiction.

Human rights ensure that we get equal opportunity and utilize our potential to fully develop ourselves without hindrance. Human rights are universal in nature i.e. we may be living in any part of the world and having different socio-economic conditions, we all have similar human rights.

UN and Human Rights

The United Nations is the most important international organization. It has to fulfill multiple objectives, one among it is to ensure human rights to all human beings. Ensuring human rights is one of its core functions. In the context of human rights, it has taken many initiatives such as establishing a specific body and signing treaties and conventions.

Initiatives taken by the UN to uphold human rights are as follows:

UN Charter and Human Rights

The UN Charter is the foundation stone of the UN. The UN Charter contains several provisions which aims to promote, protect, and extend human rights. It acts as a basic source of inspiration for the organs of the UN to ensure implementation of the rule of law throughout the world.

The Preamble of the UN Charter mentions that the people of the UN are determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human in the equal rights of men and women of large and small nations. The Ist Article of the UN Charter says that it is the purpose of the UN to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedom for all without distinction as to race, sex, language or religion.

Apart from these two important parts, the UN Charter gives responsibility to the General Assembly, for the promotion of human rights through international cooperation and the Economic and Social Council to make recommendation for the purpose of promoting respect for and the observance of human rights and fundamental freedom for all. Article 55 of the UN Charter charges the UN to promote universal respect for and observance of human rights and fundamental freedom for all without distinction as to race, sex, language or religion.

Sub-Commission on the Promotion and Protection of Human Rights

It is originally known as the 'Sub-commission on Prevention of Discrimination and Protection of Minorities' was established in 1947 as a subsidiary of the former commission on human rights. Later in the year 1999, it was renamed as the 'Sub-commission on the Promotion and Protection of Human Rights'. Subsequently, with the creation of the Human Rights Council, it was replaced by the Advisory Committee. Its major task is to assist the 'Human Rights Council'.

Commission on the Status of Women

To protect and promote human rights of women, Economic and Social Council (ECOSOC) established a commission on the status of women on 21st June 1946. It is an inter-governmental body aimed at the promotion of gender equality and the empowerment of women. In this commission, apart from States, NGOs can also participate. The commission consisted of 45 members State elected on the basis of equitable geographical distribution.

Universal Declaration of Human Rights

The United Nations General Assembly adopted a resolution 217 in its third session on 10th December 1948 in France. This resolution is renowned as the Universal Declaration of Human Rights (UDHR). This declaration consists of 30 Articles, set as an objective in front of member States. Although they are not legally binding on member States. This declaration fulfilled the dream of formulating the International Bill of Human Rights. The Universal Declaration promises all the economic, social, political, cultural, and civic rights that underpin a life free from want and means. Most of the countries have ratified this declaration.

Articles of UDHR

Article 1-2 Dignity, liberty, and equality.
Article 3-5 Individual rights (such as the right to life etc.)
Article 6-11 Fundamental legality of human rights.
Article 12-17 Right of the individual towards the community.
Article 18-21 Constitutional liberties.
Article 22-27 Individuals' economic, social, and cultural rights.
Article 28-30 Contain general ways of using the above-mentioned rights.

United Nations Human Rights Council

United Nations Human Rights Council (UNHRC) is a significant body, created by the United Nations General Assembly on 15th March 2006 by resolution A/RES/60/251 to replace the UN Commission on Human Rights.

It consists of 47 United Nations member states which are elected by the UN General Assembly. They have a term of years and shall not be eligible for immediate re-election after 2 consecutive terms and are elected on a regional basis.

It is an inter-governmental body within the United Nations system, responsible for strengthening the promotion and protection of human rights around the globe and for addressing the situation of human rights violations and make a recommendation on them. It generally meets at the UN Office at Geneva, to discuss all thematic human rights issues and situations that require attention throughout the year.

UN Commission on Human Rights

The UN Commission on Human Right (UNCHR) was established by the Economic and Social Council (ECOSOC) in the year 1946 to weave the international legal fabric that protects our fundamental rights and freedom. It was composed of 53 members. However, it was replaced by the United Nations Human Rights Council in 2006. Over the years, it had been principal international forum concerned with the promotion and protection of human rights.

Geographical Basis of Membership

African States (13)
Asian-Pacific States (13)
Eastern European States (6)
Latin American and Caribbean States (8)
Western European and other States (7)

Office of the United Nations High Commissioner for Human Rights
The Office of the United Nations High Commissioner for Human Rights (OHCHR) was established by the UN General Assembly on 20th December, 1993. It is one of the leading UN entities with a unique mandate to promote and protect all human rights for all people.

The OHCHR also plays a significant role in safeguarding the integrity of the three inter, connected pillars of the United Nations i.e. peace and security, human rights and development. This office came into existence in the wake of 1993 World Conference on Human Rights. The guiding principle for OHCHR is Universal Declaration of Human Rights.

High Commissioner for Human Rights is the head of the OHCHR, who has an onus of coordinating human rights related activities such as policy making, implementation etc, throughout the UN system. He also acts as the Secretariat of the Human Rights Council in Geneva, Switzerland.

Objectives of OHCHR
  1. Driving the international cooperation on human rights
  2. Extend support to human rights bodies and treaty monitoring bodies.
  3. Promoting universal enjoyment of all human rights.
  4. Helping the UN in universal ratification and implementation of international standards.
  5. Helping member states of the UN to establish National Human Rights infrastructure.
  6. It also provides education and technical assistance in the field of human rights.
  7. To take suo-moto cognizance of violation of human tights.

The International Covenant on Human Rights

The General Assembly adopted different international covenants on human rights with a mandate to implement the objective of the Universal Declaration of Human Rights. These covenants are as follows:

International Covenant on Civil and Political Rights

It was enacted in the year 1966 and came into force on 23rd March, 1976. It consists of 53 Articles and 6 Parts. This covenant focused mainly on civil and political rights. The articles can be grouped under following categories:
General (Articles 1 to 3 and 5)
Rights in Emergency (Article 4)
Substantive Rights (Articles 6 to 27)
Implementation of Rights by Agency (Articles 28 to 45)
Interpretation (Articles 46 to 47)
Signature and Amendments (Articles 48 to 53)

International Covenant on Economic, Social and Cultural Rights

This was another important covenant, which emphasized on economic, social and cultural rights. It was smaller in size than above mentioned covenant but equally important to it. It was also adopted in 1966. It comprises of 5 Parts and 31 Articles, which can be grouped as following:
General (Articles 1 to 5)
Substantive Rights (Articles 6 to 15)
Measures for Enforcement (Articles 16 to 25)
Miscellaneous Provisions (Articles 26 to 31)

Both the above listed covenants extended the scope and implementation of human rights in the world.
Beside these covenants, two optional protocols to these conventions were also adopted, which are as follows:

First Optional Protocol to the International Covenant on Civil and Political Rights, 1966

This optional protocol was a crucial step in the promotion and protection of human rights. The State which became party to optional protocol, accepted that, individuals claiming to be the victim of violation of any of the rights set forth in the covenant, can communicate to the Human Rights Committee, set up according to Part IV of the covenant. States also agreed to adopt Articles 1 to 14. This protocol was enforced from 23rd March, 1976.

Second Optional Protocol to the International Covenant on Civil and Political Rights, 1989

Another optional protocol was adapted in 1989 by the General Assembly, to the international covenant on civil and political rights. The basic aim of this protocol was to abolish death penalties.

Human Rights Committee

Human Rights Committee (HRC) is an important instrument for implementing the International Bill of Human Rights. This committee was established under the 'Civil Covenant of the General Assembly'. It consists of 18 members. The term of members shall be for 4 years and they are eligible for re-nomination. Two members can't be elected from the same country and members are elected on the basis of geographical equality. There are three ways of implementing provisions of covenant by the committee, i.e. the System of Reporting, Inter-state Communication and Conciliation Procedure.

World Conferences on Human Rights

Important world conferences on human rights are as follows:
International Conference on Human Rights or Tehran Conference (1968)
This was the world's first global conference on human rights, held at Tehran in 1968. It was organized on the occasion of 20th anniversary of the adoption of 'Universal Declaration of Human Rights'. It was actually convened to assess progress of implementation of UDHR. The conference was attended by 84 States, 4 regional organizations, and 57 non-governmental organizations. Its basic objective was to raise human rights awareness on a global level. Proclamation of Tehran and 26 resolutions were adopted in the conference. The proclamation stressed the States to fulfill their obligation of promotion and encouragement of human rights and fundamental freedoms for all, without any distinction as to race, colour, and sex, language, and religion, political or other opinion.

World Conference on Human Rights, Vienna, 1993 (Vienna Conference)

After Tehran Conference, next world conference on human rights was held in Vienna in 1993. This conference was very important in the field of human rights at the international level. Like Tehran Conference, this conference also assessed implementation of Universal Declaration on Human Rights. At the end of conference, two part Vienna Declaration and a six part 150 paragraph programme action were adopted. Another important thing in the conference was to recommend for the creation of an International Criminal Court to punish those responsible for the grave violation of human rights. Ethnic cleansing was condemned by attending members unanimously. In this regard, conference adopted two declarations of Bosnia and Herzegovina and one for Angola.

Salient features of Vienna Declaration are as follows:

  1. This declaration upheld that all the human rights are universal and interrelated.
  2. The concept of self-determination was reaffirmed by the declaration. It provided that people have rights t, self-determines, however it does not mean to give impetus to cession.
  3. The declaration asked to consolidate international measures to guarantee and monitor the implementation of human rights under foreign rule.
  4. The declaration promoted that development, democracy and respect for human rights are interdependent.
  5. The declaration emphasized on the gender-based violence and all other forms of sexual exploitation. It stressed on fighting it through legal measures at national and international level.
  6. The declaration gave attention towards the problem faced by the minority section because of their culture, tradition, religion etc. It prohibits the discrimination.
  7. The declaration also proposed the establishment of a post of High Commissioner for Human Rights.

Fourth World Conference on Women, Beijing (1995)

It was fourth in the series of UN sponsored global conference on women, this conference was important from the viewpoint of human rights for women. The theme of conference was Equality, Development and Peace. This conference promoted empowerment of women so that they can enjoy their rights without any obstacle.

International Humanitarian Law
Time immemorial, human beings have always been engaged in conflict, whose intensity varied according to the situation. It was common in conflict to kill innocent people, use cruel and uncivilized tactics, bombing and burning civilian areas etc. In order to stop these inhuman behaviour in armed conflict, concept of humanitarian law came into existence. It has a long history of evolution. It is considered as a branch of international law (law of nations). With the understanding of human rights it became prominent a global level.

According to International Committee of the Red Cross, International Humanitarian Law (IHL) is a set of rules that seeks to limit the effect of armed conflict. It protects people who are not or no longer participating in hostilities and restricts the means and methods of warfare. According to European Commission IHL is a set of rules that seeks to limit the effects of armed conflict. It layout the responsibilities of States and non-State armed group during an armed conflict. This set of rules defines, among others, the rapid and unimpeded passage of humanitarian relief in armed conflict, the freedom of movement of humanitarian relief personnel, the protection of civilians, and the protection of refugees, prisoner, the wounded and sick.

Principles of IHL

There are different principles which act as a foundation stone of IHL. These are as follows:

Distinction between Civilian and Combatant

This is the most basic principle of the IHL. The belligerent should recognize difference between civilian and combatant. They should refrain from attacking civilian areas, if did, then it will be grave violation of IHL. According to the UN General Assembly Resolution 2444 (XXIII of 1968), it is prohibited to launch attacks against the civilian population and that distinction must be made at all times person taking part in the hostilities and member of civilian population to effect that the latter be spared as much as possible.

The Principle of Humanity

In layman language, humanity simply means ability of human to love and have compassion toward others. This principle is the base of any civilization. All the religions and cultures around the world propagate this idea. Therefore, during armed conflict, State and non-State actors need to keep this principle in mind while taking any action. This principle laid the foundation of IHL.

The Principle of Proportionality

This principle is mainly applied in the field of war. The term 'proportionality' has been used in the Article 22 of Regulation to the Hague Convention, which means the right of belligerents to adopt means of injuring enemy is not unlimited. According to this principle, for the sake of expected military advantage, the life of civilians should not be put at risk.

The Prohibition of Attack against Wounded, Sick and Prisoners of War

This is based on the concept of humanity. It is not bravery to attack sick, wounded and prisoners of war. They all should be treated in human manner. As per this principle, they no longer possess any threat of for other side. There are different provisions regarding treatment of sick and wounded soldiers, how to deal with prisoners of war etc. in IHL.

Avoiding Infliction of Unnecessary Suffering

To satisfy their ego, belligerent nations inflict unnecessary suffering to the civilians as well as combatant. During 19th and 20th century, level of cruelty rose remarkably high. Thus, through convention and protocol at international level, countries accepted the principle, that they will prohibit inflicting unnecessary suffering. Use of blinding laser weapons was prohibited on the basis of this principle only.

Conventions and Protocols

The conventions contain the rules and regulations regarding protection of human rights during armed conflict. There are two main conventions and protocols related with international humanitarian law, which are discussed below:
Declaration of Paris (1856)
This is also referred as Paris Declaration. This declaration is considered as a first step towards the creation of IHL. The Declaration of Paris was signed on 16th April, 1856. In this declaration, rules were formulated with the respect of maritime law. Its primary goal was to abolish privateering, whereby a belligerent party gave formal permission for armed privately owned ship to seize enemy vessel. This declaration was agreed by the 55 nations.

Hague Convention of 1899 and 1907

This convention was organised after the First Geneva Convention, which played a significant role in the arena of IHL. This convention was held in 1899 and 1907 to discuss and deliberate on for enaction on laws of war and war crimes at international level. Its objective was to reduce occurrence of horrific incidents in the war field.

Geneva Convention

The Geneva Convention is the most important convention to enact International Humanitarian Law. It is not a single convention but consists of a series of conventions and protocols. The agreement originated in 1864 and was significantly updated in 1949. It began with the discussion on humane treatment of wounded or captured military person and later on covered different aspects.

The inspiration behind Geneva Convention was book of Henry Dunant's 'A Memory of Solferino', in which he talked about solution to inhuman behaviour in the armed conflict. He asked all nations to come together to create international law for the protection of volunteer relief group, wounded soldiers etc.

Geneva Convention of 1864

It was first Geneva Convention, which laid down the principle for emancipating the condition of wounded labour in armies in the field. In this meeting, treaty was signed by 12 nations. The remarkable thing of this convention was, linking the International Committee of the Red Cross (ICRC) with International Humanitarian Law. ICRC is the principal organization for implementing its provisions.

Geneva Convention of 1906

It was second in the series, was more detailed in comparison to first. It was attended by 35 States and comprised of 33 Articles. Many new provisions were added into it, such as repatriation of captured belligerents become recommendatory instead of mandatory, the burial of dead and the transmission of information.

Geneva Convention of 1929

The world leaders noticed ineffectiveness of the Geneva Convention and the Hague Convention during First World War. Therefore, third Geneva Convention was held in 1929 to enact new humanitarian law. Its official name is the Convention Related to the Treatment of Prisoners of War. It consisted of 97 Articles. This convention laid emphasis on treating all prisoners with compassion and allows them to live in humane conditions. All parties accepted the principle that 'International Red Cross Society' will act as a neutral organization between nations, will be responsible for collecting and exchanging data about prisoners of war and the wounded or killed.

Geneva Convention of 1949

This is the fourth and a holistic convention with regard to humanitarian law. During Second World War, Germany carried out horrific acts on and off the battlefield even after being the party to convention of 1929. Such incidents led to the adoption of Geneva Convention of 1949.

Its main provisions were as follows:

  1. Add provisions for the protection of medical personnel, facilities and equipment, civilians who take up arms to fight invading forces.
  2. One of the article stipulated that wounded and sick soldiers should not be murdered, tortured, exterminated or exposed to biological experiments.
  3. Hospital ships cannot be used for any military purpose nor captured nor attacked.
  4. Prisoners of War must receive suitable accommodation and adequate amount of food.
  5. The Red Cross was given right to visit them and examine their living conditions.

Geneva Convention Protocol

In the year 1977, two additional protocols were added by Geneva Convention of 1949 to consolidate International Humanitarian Law.

Protocol I added many new provisions for the protection of civilians, wounded soldiers, voluntee, workers etc. It prohibited the use of weapons which caused superfluous injury or unnecessary suffering. Also, widespread, long-term and severe damage to the natural environment was prohibited.

Protocol II was also significant, it added that all people not taking up arms be treated humanely and no one should order armed forces with a command of 'no survivor' left.

Protocol III also added specific provisions for children. It prohibited certain acts such as using children as hostage, for slavery, humiliating or degrading treatment.

In 2005, one more protocol was added to the Geneva Convention. In this protocol, distinctive emblem was adopted i.e. red crystal in addition to the Red Cross, the red cresent and the red shield of David. If any people show this sign, then all parties are obliged to help and protect that person.

At present, around 190 States are following Geneva Convention. It has led to the establishment of rule of justice in the arena of armed conflict.

Implementation of IHL

After enaction of IHL, implementation is next major task. Implementation means that provisions of IHL are being respected and implemented on ground. It covers both war time as well as peace time. According to international law, each nation is sovereign, so IHL cannot be directly implemented by the international organization.

Therefore, State party to convention and protocol plays a crucial role in successful implementation of IHL. Beside these, there are many non-State entities which play significant role in the implementation of IHL.

Article 1 is common to all the four Geneva conventions, which requires States to respect and ensure respect for conventions in all circumstances. Thus, it can be concluded that implementation of IHL is mostly voluntary in nature and there is no compulsory means for ensuring enforcement of IHL.

Basic Measures for Implementing IHL

  1. The first thing required is to disseminate information about IHL to Member State, NGOs etc, such as what are its objectives, its importance, ways etc.
  2. IHL treaties like Geneva Convention should be translated into national languages, which will be easy for them to understand it.
  3. Promoting member States to adopt, ratify and enact legislation based on the principles of IHL. It will ensure smooth compliance of IHL provision.
  4. Armed personnel should be trained in such a way that they get knowledge about IHL. It is necessary because lot of IHL provisions is related to battle field.
  5. International organisations should set up examples in front of world by punishing those who violate IHL.
  6. All the parties to the Geneva Convention and Protocol should ensure respect for the red cross, red crescent and red crystal emblem.

Role of International Committee of the Red Cross (ICRC)
International Committee of the Red Cross (ICRC) is a principal organisation in the arena of implementing IHL. A businessman Henry Dunant had played instrumental role in the establishment of this organisation. He wanted to improve care for wounded soldiers in war time. In the year 1863, this organisation came into existence. Its head quarter is in Geneva, Switzerland. The ICRC is part of the International Red Cross Movement along with the International Federation of Red Cross and Red Crescent societies. The State party to Geneva Convention and its additional protocol of 1977 and 2005 have accepted the role of ICRC to protect the wounded soldiers, prisoners, civilians caught in the war etc.

Role of ICRC in implementing IHL is as follows:

  1. The ICRC has special privilege to act in the event of armed conflict.
  2. Its most important role is to visit prisoners of war and civilian internees to make sure that their treatment and the condition in which they are being held are in consonant with IHL.
  3. It aimed to protect people during armed conflicts and other situations of violence and make a effort to obtain full respect for IHL.
  4. It seeks to minimize the danger to which they are exposed, prevent and put an end to abuses to which they are subjected.
  5. It plays a crucial role in restoration of family links, helping people to come out of conflict zone.
  6. The ICRC provides assistance services such as, ensuring food or medicine, capacity building, training of primary health care personnel, surgeons and technicians.
  7. The ICRC may approach State to ask, if detention facilities are not maintained according to the standard required by the convention and will cooperate with the State to improve the condition.
  8. As a neutral organisation, it maintains respository of information on persons affected by armed conflict, specifically the missing, sick and imprisoned.

Role of International Humanitarian Fact-Finding Commission (IHFFC)

The Article 90 of the first Additional Protocol to the Geneva Convention of 1949 provides for the establishment of an International Humanitarian Fact-Finding Commission. Following the provisions of Article 90, IHFFC was established in 1991. It consists of 15 independent members and it is a permanent body.

At present, 77 States are party to the IHFFC. The main objective of commission is to contribute to implementation and ensure respect for IHL. The commission follows the principle of independence, neutrality, impartiality and confidentiality.

Its main functions are:
  1. To enquire the facts alleged to be grave violation or serious violation of IHL.
  2. The restoration of an attitude of respect for the convention and additional Protocol 1 through facilitating its good offices.
  3. Most important function is to report its finding to the States and making such recommendation as it deems appropriate.

Role of international Criminal Court (ICC)

ICC also plays an important role in implementing provisions of IHL in an indirect way. It was established through Rome Statute on 17th July, 1998 and came into force from Ist July, 2002. It is an intergovernmental organisation and international tribunal, located in the Hague, Netherlands. It investigates and where warranted tries, individuals charged with the gravest crimes of concern to the international community, such as genocide, war crimes, etc.

Principle of Accountability Mechanism

Accountability mechanism is also a way of implementing IHL. According to this mechanism, the State is strictly responsible for all acts committed by members of its armed forces. The Geneva Convention has prohibited member States from reprisal against protected persons and goods, as well as civilian population. States accountability mechanism also covers the payment of compensation to the victims.

Challenges in Implementing International Humanitarian law

It is quite easy to enact IHL, however, its implementation is confronted with many challenges, which are as follows;
  1. There is no nodal organisation to implement IHL at international level. It is not easy for any organisation to interfere into internal matters of any State.
  2. International relations are based on the principles of respect and equality of sovereign nations, thus, it becomes difficult for one nation to look into matters of violation of IHL.
  3. In the past few decades, these is a new trend of the rapid development of private military and securities companies, They are not accountable for their acts and omission.
  4. Weapons of mass destruction are still with the nations, these weapons are biggest challenge to IHL.
  5. Terrorism, whether by State or non-State actor is a big challenge to IHL. Additional Protocol 1 unequivocally prohibits acts of terrorism, such as attacks against civilian or civilian objects.
  6. Sometimes direct participation of civilians in armed conflict results into blur distinction between combatant and civilians.
  7. Tussle of power between Nations also hampers the implementation of IHL. United State and Russia's ideological differences worsened the situation in middle-East.

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