International Legal Protections of human rights in armed conflicts

Abstract:

Armed conflicts and violation of human rights is rooted in historical debates among religious,
philosophical, and international legal scholars. An understanding of the links between them can
begin with conflict analysis, as human rights violations can be both cause and consequence of
conflict. In the most general sense, grievances over the denial or perceived denial of rights can
generate social conflict. This may be the case where there is systematic discrimination based
upon race, ethnicity, caste, religion, language, gender, or other characteristics. Alternatively,
human rights abuses can emerge as a result of violent conflict. A conflict may have been
undertaken by the parties primarily out of concern to promote a political or ideological agenda,
or to promote the welfare of one or more identity group, or over access to resources. Human
rights are also potentially transformative of conflicts and may make their resolution a greater
challenge. Thus, conflicts that begin as conflicts over resources, religion, or ethnic or territorial
claims, may, as they progress, create new grievances through the real and perceived violation of
human rights by one or more parties to the conflict.

Keywords:
INTRODUCTION

Generally, armed conflicts consist in the use of armed force between two or more organized
armed groups, governmental or non-governmental1. However, armed conflict has long been
associated with human rights violations. It is often during armed conflicts that human rights are
infringed upon the most. In certain circumstances, some of these violations may even constitute
genocide, war crimes, or crimes against humanity. They have harmed millions of people in
myriad ways, including by: killing civilians, and leaving survivors maimed, tortured, raped,
forcibly displaced, or otherwise seriously abused. By the end of 2019, 79.5 million people had
been forcibly displaced worldwide due to armed conflict, the largest number ever recorded.2

International society, however, has always been trying to protect those who are affected by
conflicts and preserve humanity. The United Nations alongside with governments and
international organizations implemented a legal framework aiming to protect the Human Rights
when they are particularly vulnerable. Conversely, implemented measures have been challenged
and in certain circumstances were seen to be ineffective. States often undermine the obligations
that have been placed upon them by international treaties. The United Nation bodies face
difficulties while attempting to protect the human rights of those who were affected by the war.3

Therefore, this study discusses the international legal protection of human rights in the situation
of armed conflict. It provides a thorough legal analysis and guidance to State authorities, human
rights and humanitarian actors and others on the application of international human rights law
and international humanitarian law for the protection of persons in the armed conflict.

Background of the study:

After the Second World War the protection of human rights of civilians under the Fourth Geneva
Convention added a dimension to humanitarian law that brought it much closer to the idea of human
rights law. Here, humanitarian law started to apply to the traditional realm of human rights law, namely
the relationship of the state to its citizens. On the other hand, at the United Nations, states slowly started
to emphasize the relevance of human rights in armed conflict. As early as 1953, the General Assembly
invoked human rights in connection with the Korean conflict. After the invasion of Hungary by Soviet
troops in 1956, the UN Security Council called upon the Soviet Union and the authorities of Hungary “to
respect ... the Hungarian people’s enjoyment of fundamental human rights and freedoms”. The situation
in the Middle East, especially, triggered the will to discuss human rights in situations of armed conflict.
However, in 1967 the Security Council, with regard to the territories occupied by Israel after the Six Day
War, clearly made known its consideration that “essential and inalienable human rights should be
respected even during the vicissitudes of war”. A year later the Tehran International Conference on
Human Rights marked a decisive step by which the United Nations accepted, in principle, the application
of human rights in armed conflict. The first resolution of the International Conference, entitled “Respect
and enforcement of human rights in the occupied territories”, called on Israel to apply both the Universal
1
https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf
2
https://www.amnesty.org/en/what-we-do/armed-conflict/
3
file:///C:/Users/Asus/Desktop/Adv%20Osama/PDF/shera%20L IMUN_HS_UNHRC.pdf
Declaration of Human Rights and the Geneva Conventions in the occupied Palestinian territories. Then
followed the resolution entitled “Respect for human rights in armed conflict”, which stated that “even
during the periods of armed conflicts, humanitarian principles must prevail”. It was reaffirmed by General
Assembly Resolution 2444 of 19 December 1968 with the same title, requesting the Secretary-General to
draft a report on measures to be adopted for the protection of all individuals in times of armed conflict.
His two reports concluded that human rights instruments, especially the International Covenant on Civil
and Political Rights (ICCPR) – which had not even entered into force at that time – afforded a more
comprehensive protection to persons in times of armed conflict than did the Geneva Conventions alone.
The Secretary-General even mentioned the state-reporting system under the Covenant – not yet in force –
which he thought “may prove of value in regard to periods of armed conflict”, thus already anticipating
the later practice of the Human Rights Committee. Pursuant to the two reports of the Secretary-General,
the UN General Assembly affirmed in its resolution on “Basic principles for the protection of civilian
populations in armed conflict” that “fundamental human rights, as accepted in international law and laid
down in international instruments, continue to apply fully in situations of armed conflict”. The ICRC in
particular could now relaunch the process of developing international humanitarian law to improve the
protection of civilians not only in international but also in non-international armed conflict. The
Diplomatic Conference and its outcome, the two Additional Protocols of 1977, owed an undeniable debt
to human rights – some rights which are derivable under human rights law were notably made non-
derivable as humanitarian law guarantees. Both Additional Protocols acknowledge the application of
human rights in armed conflict. The United Nations has also conducted investigations into violations of
human rights, for example in connection with the conflicts in Liberia and Sierra Leone, Israel’s military
occupation of the Palestinian territories and Iraq’s military occupation of Kuwait. The Security Council
has also addressed human rights violations by “militias and foreign armed groups” in the Democratic
Republic of the Congo. The applicability of human rights treaties to situations of armed conflict is also
confirmed by the existence of derogation clauses allowing for, but also restricting, derogation from
human rights in times of emergency, which either explicitly or implicitly include wartime situations.
Finally, some newer international treaties and instruments incorporate or draw from both human rights
and international humanitarian law provisions.

Literature Review

In a paper named “The International Protection of Vulnerable Groups during Armed Conflicts ” Reagr
Farhad Muhammadamin, Bryar Sherko Baban highlighted the various frameworks for protecting the
status of vulnerable groups impacted by armed conflict.

In another paper entitled “Protection of in Civil Citizens International Armed Conflict Based Geneva IV
Convention in 1949” Gorga Alam Harahap, Amad Sudiro and Thelisia Kristin formulates the position of
the Martens Clause based on Geneva Convention IV 1949 in the protection of civilians in international
armed conflicts.4

In the paper named “INTERNATIONAL LEGAL REGULATION OF THE RESTRICTION OF THE RIGHT TO LIFE
IN ARMED CONFLICTS” Iurii USMANOV explored the conditions and situations, their peculiarities, when,

4
file:///C:/Users/Asus/Downloads/125948072.pdf
despite the presence of international and regional protection, the right to life of a person can be
deprived lawfully, which speaks of the relative nature of such a right. 5

Noam Lubell in his paper named “Challenges in applying human rights law to armed conflict” focused
challenges and obstacles encountered during the joint application of IHL and Human Rights Law, that
still need to be addressed. These include extra-territorial applicability of human rights law; the mandate
and expertise of human rights bodies; terminological and conceptual differences between the bodies of
law; particular difficulties raised in non-international armed conflicts; and the question of economic,
social and cultural rights during armed conflict. 6

All the above literature has focused either on the specific groups or any particular kind of human
rights violation during armed conflicts. However, none of the article did focus civilians’ rights in
general which are being violated in the armed conflicts and what are the available international
legal phenomena for the protection of them and their families and what sorts responsibilities, the
conflicted party and the individual has to fulfill. Hence, the current study will focus on these
certain issues.

Research Question

The question of this monograph tries to address:

1. Do applicable and available International legal mechanisms to protect the human rights in armed
conflict?

2. How does the law protect the human rights in armed conflicts?

5
https://ibn.idsi.md/sites/default/files/imag_file/189_193_International%20legal%20regulation%20of%20the
%20restriction%20of%20the%20right.pdf
6
https://www.cambridge.org/core/journals/international-review-of-the-red-cross/article/abs/challenges-in-
applying-human-rights-law-to-armed-conflict/5443240A4DB7AEC1979EB9439A758E44
Research Methodology

The aim of this study is to find out how the armed conflict has spiked the violation of civilian’s
rights and the available international legal instruments to protect them. This study has been made
on both qualitative and analytical research method by using secondary sources of data. The
secondary sources of data were collected from different legal journals, books, report and various
publications. However, by using the qualitative data I have tried to find out what sorts of rights
have been violated during the armed conflict. On the other hand, by using the analytical method,
I have analyzed the existing international legal phenomena towards the human rights protection
during armed conflicts and the measures taken by many areas to protect them.

Armed Conflicts in International Law

According to the Geneva Convention of 19497 , International humanitarian law distinguishes two
types of Armed Conflicts, namely:

International armed conflict: Common Article 2 to the Geneva Conventions of 1949 states that:
"In addition to the provisions which shall be implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is not recognized by one of
them. The Convention shall also apply to all cases of partial or total occupation of the territory of
a High Contracting Party, even if the said occupation meets with no armed resistance" 8 This
means that the occurrence of international armed conflict is that, it would be a conflict between the
legal armed forces of two different states. For example, the North Korean- South Korean war of
1950.

According to this provision, IACs are those which oppose "High Contracting Parties", meaning
States. An IAC occurs when one or more States have recourse to armed force against another
State, regardless of the reasons or the intensity of this confrontation. Relevant rules of IHL may
be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or
recognition of the situation is required. The existence of an IAC, and as a consequence, the
possibility to apply International Humanitarian Law to this situation, depends on what actually
happens on the ground. It is based on factual conditions. 9 For example, there may be an IAC,
even though one of the belligerents does not recognize the government of the adverse party. The
Commentary of the Geneva Conventions of 1949 confirms that "any difference arising between
two States and leading to the intervention of armed forces is an armed conflict within the
7
Available at: https://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/
overviewgeneva-conventions.htm
8
Geneva Convention, 1949, common art.2).
9
https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf
meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no
difference how long the conflict lasts, or how much slaughter takes place"10

Non-international armed conflict: According to common article 3 of the Geneva Convention,

‘armed conflicts that are non-international in nature occurring in one of the High contracting parties’
are called non- international armed conflicts.11 These include armed conflicts in which one or more
non-governmental armed groups are involved. Depending on the situation, hostilities may occur
between governmental armed forces and non-governmental armed groups or between such groups
only. As the four Geneva Conventions have universally been ratified now, the requirement that the
armed conflict must occur "in the territory of one of the High Contracting Parties" has lost its
importance in practice. Indeed, any armed conflict between governmental armed forces and armed
groups or between such groups cannot but take place on the territory of one of the Parties to the
Convention.

In order to distinguish an armed conflict, in the meaning of common Article 3, from less serious forms of
violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a
certain threshold of confrontation. It has been generally accepted that the lower threshold found in
Article 1(2) of Additional Protocol II, which excludes internal disturbances and tensions from the
definition of NIAC, also applies to common Article 3. Two criteria are usually used in this regard: 12

First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when
the hostilities are of a collective character or when the government is obliged to use military force
against the insurgents, instead of mere police forces.

Second, non-governmental groups involved in the conflict must be considered as "parties to the
conflict", meaning that they possess organized armed forces. This means for example that these forces
have to be under a certain command structure and have the capacity to sustain military operations. 13

The nature of armed conflicts

Armed conflicts within States are political conflicts involving citizens fighting for internal change. Some
are secessionist movements, generally spearheaded by a group of people, more often than not a
minority within a community, who take up arms to fight for the establishment of either an autonomous
entity within an existing state or an entirely new and independent state of their own. Such struggles
have taken place recently in Asia and Europe. Such conflicts have been relatively uncommon in Africa,
although issues related to ethnic identity are an important factor in African politics. However, Eritrea
declared independence from Ethiopia and several military actions on a large scale followed. In Europe,
10
J. Pictet, Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32.
11
Geneva Convention, common article 3, 1949
12
https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf
13
D. Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, RCADI,
Vol. 163, 1979-II, p. 147. For a detailed analysis of this criteria, see ICTY, The Prosecutor v. Fatmir Limaj, Judgment,
IT-03-66-T, 30 November 2005, para. 94-134.
between 1991 and 1992 Slovenia, Croatia and Bosnia and Herzegovina seceded from Yugoslavia after
short or prolonged war, while the former Yugoslav Republic of Macedonia did so peacefully. Barring
these and East Timor, the break-up of States as a result of secessionist movements has been rare.

A second and larger category of armed conflicts within States often involves a group of people who are
armed and ready to fight for the goal of seizing governmental power. Sometimes conflicts are matters of

organized crime as opposed to politics. Money is the motivator for these groups. Unlike members of
secessionist movements, such groups are generally prepared to continue to live in the same territory
with other groups, regardless of the outcome of the conflict.

Most armed conflicts are fought not only by regular armies but also by militias and armed civilians with
little discipline and with ill-defined chains of command. Such clashes are in fact often guerilla wars
without clear front lines. Another important feature in such conflicts is usually the collapse of the
institutions of the state, especially the police and judiciary, with resulting paralysis of governance, a
breakdown of law and order, and general banditry and chaos. In some cases, not only are the functions
of government suspended but its assets are destroyed or looted and experienced officials are killed or
flee the country.

Fighting in most conflicts is usually intermittent, with a wide range in intensity. It usually occurs not on
well-defined battlefields but in and around communities, and is often characterized by personalized acts
of violence, such as atrocities committed by former neighbors and, in extreme cases, genocide. In some
cases, the fighting spills over to neighboring countries used by one of the parties in the conflict as supply
routes or hideouts for combatants.

Home-grown weapons, such as machetes and spears, maim many in armed conflicts, but imported
machine-guns, grenades, mortars and armored vehicles kill many more. The weapons are acquired by
warring parties, either through hard currency purchases or through what is known as “parallel
financing”, which involves the sale or barter of goods, such as diamonds, oil, timber and coffee. There is
usually some level of external involvement, whether in the form of arms supply to the warring factions,
provision of military advisers or direct combat support for a particular side, as was noted earlier in the
case of the Democratic Republic of Congo, Liberia and Sierra Leone.

Brief ceasefires characterize most armed conflicts. Armed conflicts may end in many ways, including
through peace agreements entered into by the warring parties to explicitly regulate or resolve
contentious issues. They may also end through outright victory, where one party has been defeated
and/or eliminated by the other. For some experts, conflicts may also be considered to have ended in
situations in which even though there has been no formal

203
ceasefire fighting has been dormant for two years.

A feature of twentieth century armed conflicts is that civilians have in many instances become the main
combatants, as well as the primary victims. While it is not possible to estimate civilian casualties in war
with precision, authorities agree that the trend is upward. According to World Military and Social
Expenditures 1996, civilians represented about 50 per cent of war-related deaths in the first half of the
twentieth century.4 In the 1960s civilians accounted for 63 per cent of recorded war deaths, in the
1980s 74 per cent, and in the 1990s the figure appears to have risen further.5 The massive killings of
civilian populations are due, in large part, to the fact that present-day wars are fought largely within
and not between countries. Villages and streets have become battlefields. Traditional sanctuaries, such
as hospitals and churches, have become targets. Armed conflicts today destroy crops, places of worship
and schools. Nothing is spared. In addition, more and more civilians are involved in combat because of
the easy availability of small arms and light weapons, which are also inexpensive, reliable and simple to
operate6. Since the end of the cold war, arms manufacturers have been aggressively promoting sales to
developing countries to compensate for the fall in arms purchases by most industrialized countries.

Particularly disturbing is the increasing use of young children as soldiers. The Swedish Save the Children
Fund reported that one quarter of a million children, some as young as seven, were used as soldiers in
33 armed conflicts in 1995 and 1996 alone.7 They worked as cooks, porters and messengers or
participated in active combat as executioners, assassins, spies and informers. Regardless of what these
child soldiers are assigned to do, they work in close proximity to combat.

Historically, children participated in wars as drummer boys, foot soldiers or ship’s boys, but not all of
them fought or risk their lives. The alarming trend today is that children are widely used as soldiers
during prolonged periods of civil war. As of 1995, conflicts have dragged on in Angola for 30 years, in
Afghanistan for 17 years, in Sri Lanka for 11 years and in Somalia for seven years. Moreover, children
are no longer recruited as a last resort when adult fighters run short – they are sometimes recruited
first.

There are several reasons why children are recruited as soldiers. They are more docile, complain less
and are easily moulded into ruthless fighters. They can easily carry and use lightweight but high-
powered weapons. A boy as young as 10 years can strip and reassemble rifles with minimal training. It
is also believed that most young soldiers are less afraid of dying than are older combatants. They are
often fearless because of being drugged. In addition, children are a greater proportion of

the population than are adults in these countries. In much of Africa, for example, half of the population
is under 18 years old.

Many child soldiers have been deliberately recruited, others abducted and some coerced into fighting
to protect their families. Boys as young as six have been picked from schools and indoctrinated into
“small boys” units. Boys have been kidnapped from poor districts of cities or from schools to replenish
military forces. To lure children to fight, they are given amulets or the use of “magic” charms, and
brainwashed into believing that they are fearless warriors and protected from harm. In other cases, poor
parents have offered their children to serve in wars as a means of family survival. Invariably, recruited
child soldiers come from impoverished and marginalized backgrounds.
The brutal indoctrination of child soldiers leaves them with emotional and psychological scars. Children
were made to witness massacres and commit atrocities. In Cambodia, Mozambique and the Sudan, child
soldiers were “socialized” into violence by subjecting them to periods of terror and physical abuse. In
Sierra Leone, abducted children were forced to witness or take part in the torture and execution of their
own relatives. This made them outcasts in their villages and forced them to cling to rebel groups.
Another effective tactic used by rebels to spread terror is the execution of the village chief by the
youngest boy.

Human Rights in the Armed Conflicts

Human Rights are the rights that are entitled to all persons regardless of their race, gender,
religion, language or any other status. Usually, these rights are guaranteed by law and the states
are required to preserve and follow the principles outlined in both bodies of law. However, the
violation of these laws is considered as a criminal offence and the prosecution can be issued by
the International Criminal Court or other bodies of international law. States who violate the
principles of international human rights law and humanitarian law in the conflict zones can be
prosecuted and restrained by other states. I.e., The United States and the European Union issued
economic and diplomatic sanctions against Russian Federation condemning Russian actions in
Syria. The behavior of the states and the status of International Human Rights Law during the
conflicts are regulated by the International Court of Justice. Furthermore, the implementation and
preservation of Human Rights during the conflict are monitored by some UN Committees
including Human Rights Council.

In Syria, Recently the Syrian conflict has been characterized by a significant reduction of human
rights and humanitarian law. According to the UN Office for the Coordination of Humanitarian
Affairs around 2 million people lived in besieged areas and were denied humanitarian aid.
Thousands of civilians have been subjected to torture, ill-treatment, kidnapping and execution. It
is estimated that non-state armed groups opposing the government use child soldiers, block
humanitarian aid and violate the human rights. The Joint Investigative Mechanism between the
Organizations for the Prohibition of Chemical Weapons (OPCW) and the UN in their reports
stated that the government used chemical weapons during their attack in Idlib in March 2015.
The ISIS was also accused of using Sulphur mustard gas in their attacks. In October 2015
Russian Federation lost its seat at the Human Rights Council and several human rights
organizations accused Russia of their involvement in war crimes. Human Rights Watch accused
the Russian-Syrian coalition of targeting civilians and use internationally banned cluster
munitions. In 2016 the UN alleged that the Syrian government created obstacles for the supply of
the Humanitarian Aid to be delivered to the civilians. While the UN and the International
Community work with determination to protect the human rights of civilians, the human rights
violations still occur. The conflict resulted in displacement and death of thousands of persons.
Some Syrian citizens seek refuge and support abroad but often they face challenges during their
journeys. Thus, at the present moment Syrian Conflict is considered one of the most dangerous
and requires immediate resolution.14

Protection of Human Rights in Armed Conflicts: Legal

Perspectives
As it is often during armed conflicts human rights are infringed upon the most. Therefore, over the
years, it has been focused much attention on the formulation of instruments aimed at alleviating human
suffering during the conflict. There are two main areas of modern international law attempt to provide
protection to victims of armed conflicts: one is human rights law and another is humanitarian law.
These fields are closely interlinked in protecting human rights.

This chapter focuses on international humanitarian law, which differs from human rights law in that it
concentrates on specified conflict-related acts and does not give rise to individual claims.

Protection under International Human Rights Law:

The international human rights law is a system of international standards to defend and promote
the human rights of everyone. Inherent to the human person regardless of nationality, place of
residence, sex, national or ethnic origin, color, religion, language or any other aspect of his
condition, these rights are interrelated, interdependent and indivisible. They are often proclaimed
and guaranteed by legal instruments such as treaties, customary international law, general
principles or soft law.15

However, there are some obligations imposed on States in the situations of armed conflict:16

 IHRL is embodied in laws either established by treaty, derived from the customary
practice of States or in resolutions issued by international organizations. The main treaty
sources of IHRL relevant to armed conflicts are:

 The International Bill of Rights (Universal Declaration of Human Rights 1948

(UDHR).

14
"Syria: Don`t let the people of Syria down, appeals UN Humanitarian Chief." Syria: Don`t let the people of Syria
down, appeals UN Humanitarian Chief | OCHA. February 19, 2013, Accessed via:
http://www.unocha.org/story/syria-don%E2%80%99t-let-people-syria-down-appeals-unhumanitarian-chief
15
International legal protection of human rights in armed conflicts, United Nations Publication, New York, 2011, p.
5
16
file:///C:/Users/Asus/Desktop/Adv%20Osama/PDF/Legal-Factsheet-IHR-in-Conflict.pdf
  The International Covenant on Economic, Social and Cultural Rights and its
Optional Protocol.
 The International Covenant on Civil and Political Rights and its two Optional
Protocols;
 The International Convention on the Elimination of All Forms of Racial
Discrimination;
 The Convention on the Elimination of All Forms of Discrimination against
Women and its Optional Protocol;
 The Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment and its Optional Protocol;
 The Convention on the Rights of the Child and its two Optional Protocols;
 The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families;
 The International Convention for the Protection of All Persons from Enforced
Disappearance; and
 The Convention on the Rights of Persons with Disabilities and its Optional
Protocol.

 A number of fundamental rights guaranteed by IHRL via treaty correspond to the rights
of combatants and civilians protected by IHL. IHRL can, therefore, be a complementary
and reinforcing source of obligations on parties to armed conflict or belligerent
occupation. For instance, the right to life, prohibition of torture or degrading treatment,
right to a fair trial or prohibition of discrimination are reasonably applicable in most
situations of armed conflict.
 Not all provisions of IHRL, however, are amenable to reasonable application in every
instance of armed conflict and battlefield realities can inhibit application. For instance, in
preserving the ‘right to life’, IHL is concerned with distinction between civilians and
combatants, proportionality and precautions in any ‘legitimate’ attack, whereas, IHRL
looks at the use of force as a last resort necessary to protect life. IHL provisions can also
either expressly or implicitly cut across IHRL rights rendering their application
questionable. Application is made difficult as there is no clear law on how to interpret,
give precedence or reconcile provisions seemingly in conflict. For instance, IHL permits
the censoring of correspondence addressed to prisoners of war which could engage
human rights relating to privacy and freedom of expression.
 A way of reconciling overlaps or conflicts of law is to defer, at first instance, to IHL as
the specific law of armed conflict although stronger protections under IHRL could then
be circumvented. Alternatively, the focus can be on substance over form with the view
that the body of law providing the best human rights protection to achieve a common
purpose prevails but such a view cannot assist with fundamental incompatibility.
 There is an outstanding question of justiciability in cases of violation of human rights.
Whereas IHRL lays down rules binding governments, there is a growing body of subject-
specific treaties and protocols as well as various regional treaties on the protection of
human rights and fundamental freedoms. Moreover, resolutions adopted by the General
Assembly, the Security Council and the Human Rights Council, case law by treaty bodies
and reports of human rights special procedures, declarations, guiding principles and other
soft law instruments contribute to clarifying, crystallizing and providing principled
 guidance on human rights norms and standards, even if they do not contain legally
binding obligations per se, except those that constitute rules of international custom.17

However, International human rights law is not limited to the rights enumerated in treaties, but
also comprises rights and freedoms that have become part of customary international law,
binding on all States, including those that are not party to a particular treaty. Many of the rights
set out in the Universal Declaration of Human Rights are widely regarded to have this
character.18 Furthermore, some rights are recognized as having a special status as peremptory
norms of customary international law, which means that no derogation is admissible under any
circumstance and that they prevail, in particular, over other international obligations. The
prohibitions of torture, slavery, genocide, racial discrimination and crimes against humanity, and
the right to self-determination are widely recognized as peremptory norms, as reflected in the
International Law Commission’s draft articles on State responsibility.

Protection Under International Humanitarian Law:

International humanitarian law (IHL) regulates the conduct of parties under an “armed conflict”
and requires humane treatment of civilians, prisoners, the wounded and sick. It includes all the
rules that govern the behavior of the belligerents in the war in search of maximum humanization
of it. It intends to regulate the use of weapons, to prohibit certain types of weapons, to protect
people whose fate was affected by the war, as well as their goods.19 International humanitarian
law is increasingly perceived as part of human rights applicable in armed conflicts.

This trend began to take shape during the United Nations Conference on Human Rights held in
Tehran in 1968.20 The Conference encouraged the development of international humanitarian law
and a new trend emerged consisting, for the United Nations, to make more use of humanitarian
law for the protection of persons in armed conflicts. To achieve this objective, international
humanitarian law covers two areas: the protection of persons; and restrictions on the means and
the methods of combat. International humanitarian law finds its sources in treaties and in
customary international law. The subsequent instruments form the core of modern international
humanitarian law are: 21

 The Hague Regulations respecting the Laws and Customs of War on Land.
 The Geneva Convention (I) for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field;
 The Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea;
17
blue pdf
18
See the Human Rights Committee’s observations—in its general comment No. 24 (1994) on issues relating to
reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation
to declarations under article 41 of the Covenant, and in its general comment No. 29 (2001)—that some rights in
the International Covenant on Civil and Political Rights also reflect norms of customary international law
19
Lectures of Professor of International Humanitarian Law, FRIN Philippe (Lieutenant Colonel), Research Professor
at the Research Center of Saint-Cyr Coëtquidan Schools.
20
Resolution XXIII, “Protection of human rights in armed conflicts”, adopted by the International Conference on
Human Rights, Tehran, 12 May 1968.
21
article
  The Geneva Convention (III) relative to the Treatment of Prisoners of War;
 The Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of
War;
 The Protocol Additional to the Geneva Conventions and relating to the Protection of
Victims of International Armed Conflicts (Protocol I); and
 The Protocol Additional to the Geneva Conventions and relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II).

The Hague Regulations are generally considered as corresponding to customary international

law, binding on all States independently of their acceptance of them. The Geneva Conventions
have attained universal ratification. Many of the provisions contained in the Geneva Conventions
and their Protocols are considered to be part of customary international law and applicable in any
armed conflict.22

Other international treaties dealing with the production, use and stockpiling of certain weapons
are also considered part of international humanitarian law, insofar as they regulate the conduct of
armed hostilities and impose limitations on the use of certain weapons. The International
Committee of the Red Cross (ICRC) has a special role under international humanitarian law. The
Geneva Conventions stipulate that it will visit prisoners, organize relief operations, contribute to
family reunification and conduct a range of humanitarian activities during international armed
conflicts. They also allow it to offer these services in non-international armed conflicts. The
International Committee of the Red Cross has a recognized role in the interpretation of
international humanitarian law and is charged with working towards its faithful application in
armed conflicts, taking cognizance of breaches of that law and contributing to the understanding,
dissemination and development of the law.23

Challenges in applying human rights law to armed conflict

The first serious difficulty that must be confronted lies in the question of whether there are not after
all limitations to the scope of applicability of human rights law, and whether it applies to all situations
of armed conflict. This question revolves largely around the issue of extraterritorial applicability of
human rights obligations. 
The problem of extraterritorial obligations is primarily of relevance to international armed
conflict, since it is in such situations that a State is likely to be operating outside its borders and that
9

questions are raised as to whether human rights obligations can extend to actions of State forces
outside the State’s recognized borders, even after accepting that human rights law has not
disappeared with the outbreak of conflict. 
There is not enough space here to give a detailed analysis of all cases of  and views on
extraterritorial applicability. The following is therefore an attempt to set out the main concerns and
approaches to this issue. Human rights bodies, and was recently clearly stated by the International
Court of Justice. The essence of the extension of obligations to occupied territory is   based on the
analogy to national territory, in that occupied territory is in effect  under the authority and control of

22
For a detailed analysis of customary rules of international humanitarian law, see International Committee of the
Red Cross, Customary International Humanitarian Law, by Jean-Marie Henckaerts and Louise Doswald-Beck
(Cambridge University Press, 2005).
23
See Statutes of the International Red Cross and Red Crescent Movements, art. 5.2 (c) and (g). For additional
detail on the “guardian” function of ICRC, see Y. Sandoz, “The International Committee for the Red Cross as
guardian of international humanitarian law”, 31 December 1998. Available from www.icrc.org.
the occupying State. At the same time, occupied territories in which significant hostilities are
occurring, as was the case in parts of Iraq, remain controversial with regard to the human rights
obligation  of the State, as evidenced in Al-Skeini
However, even in other situations in which the State does not control the whole territory,
there may be circumstances in which human rights obligations  do extend extraterritorially, for
instance when the State is running a detention  facility outside its borders. The formula presented by
the UN Human Rights  Committee (HRC) speaks of protecting “anyone within the power or effective 
control of that State Party, even if not situated within the territory of the State  Party.” 
The first part of this phrase can be construed fairly widely and could  potentially include
anyone in the hands, even only temporarily, of State agents  abroad. The HRC case of Lopez
Burgos and the Ocalan case of the European  Commission of Human Rights (ECHR) indicate that
human rights obligations  can be attached to extraterritorial actions of State agents in which they
have  authority and control over an individual. While in these situations the scope of  relevant human
rights obligations might be narrower than in an occupied territory, it could nevertheless be argued
that State agents are bound to respect those  human rights obligations that they have the power to
affect. With this approach,  a key consideration is whether a violation resulted directly from
circumstances  over which the State had control, whether or not it also had overall control of  the
territory in which the violation occurred.
It should be pointed out that acceptance that human rights law may extend to extraterritorial
actions does not rule out the consideration that if these actions are taking place in the context of an
armed conflict, the content of the rights may need to be interpreted in light of applicable rules of IHL.
The example usually given for such a situation is the interpretation of the right to life in accordance
with IHL rules on how and against whom force may be used  during an armed conflict.
In summary, it can probably be safely said that human rights obligations may sometimes
extend extraterritorially. There is, however, still disagreement on when the obligations actually come
into play: 
• first, with regard to “effective control” in occupation there may be a problem in areas where
hostilities continue;  
• secondly, as was seen after the Bankovic decision, there are debates on what constitutes control
(e.g. whether there is a difference between ground troops or air power, and whether control over
the consequences for the individual is enough without control over the territory),  and the
particular difficulties of regional systems covering situations  outside the region;  
• and thirdly, with regard to the HRC formulation of “within the power,” it might well be argued that
the obligations probably do not extend to extraterritorial battlefield conduct, but do exist once
people have been removed from the battlefield and placed in a detention facility run by  the
State — though where the obligations begin along the line between  the two is unclear.  
All in all, it seems that human rights law obligations can extend extra territorially and be
relevant to international armed conflict, but it is still unclear exactly how far that extension can be
stretched. 

Another point to be made is that recognition of certain elements of human rights law as part of
customary international law might also advance the argument of human rights obligations extending
beyond the territory of the State. Support for this comes from the US Operational Law
Handboo 2004, which clearly accepts that US forces in extraterritorial operations can be bound by
customary human rights law. Progress on this front would depend  on how the customary status of
human rights law is assessed, both in content  and in rules of applicability. Considering the period of
time and amount of effort involved in the ICRC study on IHL, it is unfortunately unlikely that
an equally comprehensive study on customary international human rights law will be available in the
very near future.24

24
MEASURES TAKEN BY THE UN AND THE INTERNATIONAL COMMUNITY

There are two main areas of modern international law that are aimed at dealing with protection of
victims of armed conflicts: human rights law and humanitarian law. International human rights
law and international humanitarian law share the goal of preserving the dignity and humanity of
all. Over the years, the General Assembly, the Commission on Human Rights and the Human
Rights Council have agreed that, in situations of armed conflict, parties to the conflict have
legally binding obligations concerning the rights of persons affected by the conflict. These rights,
which are inherent in all human beings, are interdependent and indivisible.

The international community has thus adopted a comprehensive legislative and normative
framework so as to deal with violations of human rights in armed conflicts. International
humanitarian law seeks to limit the effects of armed conflict and protects persons who are not or
no longer participating in the hostilities, and restricts the means of warfare. It has to be applied
equally by all sides of every armed conflict.

In particular, Protocol I to the 1949 Geneva Conventions (1977) relates to international armed
conflicts. Broadly speaking, international armed conflicts involve different nation-states whereas
national conflicts involve only governments and rebel forces operating within the borders of one
country; yet, as this distinction is not always applicable, the international community has since
recognized that some “internal” conflicts should be considered as international armed conflicts,
thus being included under abovementioned Protocol I.

Another pillar of this framework is the Rome Statute of the International Criminal Court which is
the treaty that established the ICC and four core international crimes: genocide, crimes against
humanity, war crimes and the crime of aggression. Under the Rome Statute, the ICC can
prosecute such crimes in situations where states cannot or do not want to do so themselves. If the
crime is committed in a state which is not party to the Statute, the ICC has to receive an
authorization from the UNSC before proceeding to any investigation. There are also a number of
Security Council Resolutions on the protection of civilians during times of conflict.

State Responsibility for the Violation of human rights law and international humanitarian
law:

The obligations created by the violations of international human rights law and international
humanitarian law, ensure that the criminals should be charged for their crimes. As stated by the
Secretary General of the UN, the rule of law implies that “For the United Nations, the rule of law refers
to a principle of governance in which all persons, institutions and entities, public and private, including
the State itself, are accountable to laws that are publicly promulgated, equally enforced and
independently adjudicated, and which are consistent with international human rights norms and
standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law,
equality before the law, accountability to the law, fairness in the application of the law, separation of
powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and
legal transparency.”25
25
UN Secretary-General, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of
the Secretary-General”, U.N.Doc. S/2004/616 (Aug. 23, 2004), para. 6
In the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations
of International Human Rights Law and serious violations of international humanitarian law, the General
Assembly recognized that the obligation to respect, ensure respect for and implement international
human rights law and international humanitarian law includes “to investigate effectively, promptly,
thoroughly and impartially on the violations and to take, if any, action against the alleged perpetrator in
accordance with domestic and international law”. 26

The State and individuals may be responsible for crimes during the armed conflicts. Genocide, war
crimes, crimes against humanity are violations of human rights and humanitarian law during armed
conflicts. In the event of armed conflicts, a State is responsible for violations of human rights and
humanitarian law attributable to it, such as:

 the violations committed by the organs of that State, including its armed forces;
 the violations by individuals, corporations empowered to exercise prerogatives of public power;
 the violations committed by persons or groups acting in fact on instruction and direction or
control of that State;
 the violations by individuals or private groups that it recognizes and adopts as its own conduct.

In the Case Bosnia and Herzegovina v. Serbia and Montenegro, The International Court of Justice
concluded that Serbia had violated its obligations to prevent acts of genocide and prosecute the
perpetrators.27

There are also individual responsibilities for violations in the armed conflicts for committing crimes,
controlled or obeyed illegal orders that led to these crimes (ICTY was established to bring to justice
those responsible for crimes in the former Yugoslavia). 28

Application of international human rights law and international humanitarian law by the UN:

The Maintenance of peace and preventing armed conflict are fundamental concerns of the UNO. As
provided in the Article of the Charter of the UN, promoting and encouraging respect for human rights
and for fundamental freedoms for all without discrimination is one of the fundamental purposes of the
Organization. In this respect, the UNO has a long history of drawing on both international human rights
law and international humanitarian law to protect people during times of armed conflict. It takes into
account that the adoption of important international instruments on human rights, such as the Universal
Declaration of Human Rights and international human rights treaties, has contributed to affirm the idea
that everyone is entitled to enjoy human rights, whether in peacetime or in wartime.

The General assembly

The General Assembly, as the main norm-creating body of the United Nations, has since the creation of
the Organization been actively involved in the development of human rights norms, including the
26
International legal protection of human rights in armed conflicts, United Nations Publication, New York, 2011,
p.75.
27
International legal protection of human rights in armed conflicts, United Nations Publication, New York, 2011,
p.75.
28
International legal protection of human rights in armed conflicts, United Nations Publication, New York, 2011,
p.75.
Universal Declaration of Human Rights. The General Assembly has adopted a number of human rights
principles and standards on the rights of specially protected groups. The General Assembly has also
developed standards on the detention, arrest, expulsion and punishment of persons guilty of war crimes
and crimes against humanity.

The Security Council

In the 2005 World Summit Outcome, Member States clearly recognized that “the international
community, through the UN, also has the responsibility to use appropriate diplomatic, humanitarian and
other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect
populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The SC has also
on various occasions condemned violations of human rights and humanitarian law in armed conflicts
and called for accountability.

The human rights council

The mandate of the Human Rights Council consolidated the work of the Commission since 1947. Indeed,
when adopting resolution 60/251 to create the Human Rights Council, the GA (General Assembly)
decided to give it two core responsibilities: (a) promote universal respect for the protection of all human
rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner;
and (b) address situations of violations of human rights, including gross and systematic violations, and
make recommendations to resolve them. Both the Commission and the Council have time and again
considered violations of international humanitarian law to fall within their mandates. The Council has
further decided that “given the complementary and mutually interrelated nature of international human
rights law and international humanitarian law, the review shall take into account applicable
international humanitarian law.

Treaty bodies and special procedures

Independent UN human rights experts, working in treaty bodies or as the holders of country or thematic
special procedure mandates of the Human Rights Council, regularly refer to obligations of international
human rights and humanitarian law in armed conflict. Their reports and recommendations help to
identify and sometimes prevent violations in armed conflict.

Treaty bodies

The Human Rights Committee, in its general comments Nos. 29 (2001) and 31 (2004), dealt with the
applicability of the International Covenant on Civil and Political conflict and recalled that the Covenant’s
human rights obligations apply in situations of armed conflict to which the rules of international
humanitarian law are also applicable.

Special procedures

Human rights special procedures have also contributed through their reports to further clarifying the
relationship between obligations of international human rights law and international humanitarian law,
particularly the continuing application of human rights norms to situations of armed conflict.

Human rights components of UN peacekeeping missions

The UN systematically includes human rights components in its peace missions established by the
Security Council. For example, the United Nations Organization Mission in the Democratic Republic of
the Congo (MONUC) was mandated “to assist [the Govt] in the promotion and protection of human
rights, investigate human rights violations and cooperate with efforts to guarantee that those
responsible for serious violations of human rights and international humanitarian law are brought to
justice.

Commissions of inquiry and fact-finding missions

One of the mechanisms to investigate gross violations of human rights and serious violations of
international humanitarian law that the Security Council and the Human Rights Council have had
recourse to is the use of fact-finding missions and commissions of inquiry. The Office of the UN High
Commissioner for Human Rights is frequently asked to help establish and provide expertise to such
efforts.

Recommendations:

1. All parties engaged in a conflict should pledge to observe the standards of human rights
and international humanitarian law.
Governments and world opinion should continuously press them to observe these standards.
Other states should ensure that UN bodies
deal quickly with gross human rights violations in specific countries. States should ask the
International Fact-Finding Commission to
investigate situations of gross human rights violations as provided for under Additional
Protocol I to the Geneva Conventions.
2. The obligation to observe internationally agreed standards of fundamental human rights in
all situations including armed
conflict should be reaffirmed. International norms for the protection of victims of non-
international armed conflict should be
strengthened. The core rights which can never be derogated from, which are common to both
human rights law and international
humanitarian law, must be made truly inviolable.
3. All parties should allow unhindered access to international human rights monitors,
including representatives of UN bodies
and international non-governmental organizations. They should do nothing to impede the
efforts of national organizations in monitoring and
pressing for the observance of human rights. International non-governmental fact-finding
organizations should be encouraged to monitor,
report on and press for the observance of humanitarian principles in armed conflicts.
4. Procedures to ensure human rights protection should be included in peace agreements.
Human rights monitoring and
protection programs should be established and dispatched to areas of conflict, and attached
to intergovernmental peacekeeping
operations. The idea that human rights and peacekeeping are in any way incompatible should
be rejected. At the national level, measures
to be taken at such times include investigating the human rights violations which have been
committed, bringing those responsible to
justice, and building up the legal and institutional means to prevent future violations.

5. Human rights also need to be respected by the personnel engaged in peacekeeping

operations. The training and instructions
given to them should be in accordance with international human rights standards, including
standards on the use of force in crowd control.
6. The UN Commission on Human Rights and its Sub-Commission on Prevention of
Discrimination and Protection of Minorities
should be asked to consider on a regular basis the prevention of human rights violations in
situations of armed conflict. Governments
should take action at the coming session of the UN General Assembly to ensure that the UN
human rights program receives adequate
funding from the regular UN budget.
7. The idea of establishing a UN High Commissioner for Human Rights, which was considered
by the World Conference on Human
Rights in June, should be adopted quickly by the UN General Assembly. As gross human rights
violations in armed conflict are reported, the
High Commissioner should act at the appropriate political levels to stop them.
8. A permanent international criminal court should be established to try individuals
responsible for gross violations of human
rights and international humanitarian law, including war crimes and crimes against humanity.
The creation of the ad hoc international war
crimes tribunal for the former Yugoslavia should be seen as a step towards the establishment
of such a permanent court.
9. Governments must fulfil their obligations to offer protection to those who flee from zones
of armed conflict in fear for their
lives. They should not obstruct the right of such persons to seek asylum.