Special Meeting of the Committee on Juridical and Political Affairs on current issues in International Humanitarian Law

Chair of the Committee on Juridical and Political Affairs,
Distinguished Permanent Representatives,
Distinguished Observers,
Ladies and Gentlemen,


On the occasion of this special meeting, I am pleased to address you on the important topic of the protection of persons in situations of internal disturbances and tensions. In particular, this panel touches upon continuing questions faced by the international community concerning how to identify and apply international legal standards for the protection of persons when the line between disturbances and tensions and armed conflict becomes unclear. While the present meeting focuses upon the challenges under international humanitarian law relating to this issue, my co-panelist is best placed to address the application of the law of armed conflict as well as the concerns of the International Committee of the Red Cross. I propose to address the role that international human rights law plays in the context of internal strife and how a complementary interpretation and application of international humanitarian and human rights law can ensure the protection of persons in these frequently unclear and changeable situations.

The root of this issue is reflected in Article 1(2) of Additional Protocol II to the four Geneva Conventions of 1949 / and analogous provisions of other treaties, / which articulate an explicit distinction between situations of internal armed conflict, to which the provisions of international humanitarian law apply, and situations of “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature,” which are considered to be governed by domestic and human rights law to the exclusion of international humanitarian law. The International Committee of the Red Cross has elaborated upon the meaning of “internal disturbances and tensions” by stating in its 1973 Commentary on the Draft Additional Protocols to the Geneva Conventions that such situations may include:
- riots, that is to say, all disturbances which from the start are not directed by a leader and have no concerted intent;
- isolated and sporadic acts of violence, as distinct from military operations carried out by armed forces or organized armed groups;
- other acts of a similar nature which incur, in particular, mass arrests of persons because of their behavior or political opinion / (emphasis added.)

In attempting to apply these categories and corresponding legal rules in situations of strife within states, it is frequently difficult to draw a clear distinction between peace, internal unrest, and war, and the line separating particularly violent internal tensions and disturbances from low-level armed conflict may sometimes be blurred and not easily determined. This has certainly been true in the Americas, where states have continued to experience serious situations of internal turmoil stemming from such problems as economic and social crises, high crime rates, and terrorist violence, and where the appropriate means and methods of response are often difficult to determine and evaluate. Among the most serious consequences of this “gray zone” between peace and war is the risk that fundamental protections of persons affected by the exceptional circumstances are disregarded or sacrificed. This is particularly the case when states employ exceptional police powers and, in some cases, its military forces, in order to respond to internal situations. Too frequently, disturbances within states have served as a pretext for broad denials of basic human rights, through, for example, mass arrests, prolonged detention without review and suspension of judicial safeguards.

The debate on this issue is not new, but rather has been the subject of widespread discussion by the International Committee of the Red Cross and others in the international community. One of the most important results of past deliberations on this issue was the promulgation of the Turku Declaration of Minimum Humanitarian Standards. / The Turku Declaration, which was prepared by a group of esteemed international experts and presented to the UN Subcommission on the Prevention of Discrimination and Protection of Minorities in 1995, endeavors to affirm minimum nonderogable humanitarian standards applicable in all situations, including internal violence, disturbances, tensions and public emergency. Notwithstanding this and other past initiatives, however, it is apparent that circumstances of internal strife in which individuals are deprived of basic protections continue to occur and the post-September 11 struggle against international terrorism has only further complicated deliberations on applicable legal standards. As a consequence, events such as this meeting remain crucial in attempting to better ensure the protection of persons in situations of internal disturbances and tensions.

As international humanitarian law and international human rights law constitute separate regimes of international law with distinct origins and functions, it has been recognized that applying either or both regimes to situations of internal unrest can lead to uncertainties in legal standards applicable to state and non-state actors in some areas. This includes, for example, questions as to the circumstances under which lethal force can be used against persons engaged in violent acts and conditions under which individuals may be apprehended and detained. That said, it is important to recognize that many core humanitarian protections relating to such matters as humane treatment and due process are common to both human rights and humanitarian law and must be respected regardless of how a particular situation may be categorized or which states agents may be involved, whether police, military or otherwise. Accordingly, the focus of my presentation today will address how many of the most serious failures of protection in internal crises can be avoided through strict adherence by states to their commitments under international and regional human rights instruments and effective oversight by international human rights supervisory bodies.

The starting point for this discussion is the recognition by the Inter-American Commission on Human Rights / and other international decision-making bodies, including the International Court of Justice, / that the international human rights commitments of states apply at all times, whether in peace, situations of disturbances and tensions, or during armed conflict. The continued application of human rights protections is subject only to permissible derogations invoked strictly in accordance with the terms of applicable human rights instruments. In this respect, the American Convention on Human Rights, / like other international human rights instruments, / permits states to take measures derogating from certain treaty protections under narrowly-prescribed situations of emergency, described under the American Convention as “time of war, public danger, or other emergency that threatens the independence or security of a State Party.” Absent such conditions, the full range of human rights protections must be guaranteed to all persons within the jurisdiction of a state.

According to the doctrine of the inter-American human rights system, the ability of states to take measures derogating from protections under the human rights instruments to which they are bound is strictly governed by several conditions. / In particular:

• In order to consider that there is an emergency justifying suspension of rights, there must be an extremely grave situation of such a nature that there is a real threat to law and order or the security of the state, including an armed conflict, public danger, or other emergency that imperils the public order or security of a member state;

• Any suspension may only be for such time as is strictly required by the exigencies of the situation and may not be proclaimed for indefinite or prolonged periods;

• Any suspension may only be effectuated to the extent strictly required by the exigencies of the situation, and thereby precludes the unnecessary suspension of rights, the imposition of restrictions more severe than necessary, or the unnecessary extension of suspension to regions or areas not affected by the emergency;

• Any suspension of rights cannot entail discrimination of any kind on such grounds as race, color, sex, language, religion or social origin;

• Any suspension must be compatible with all of a member state’s other obligations under international law; and

• The declaration of a state of emergency must be notified to the members states of the OAS with sufficient information that others may determine the nature of the emergency, whether the measures are strictly required by the exigencies of the situation, and whether they might be discriminatory or inconsistent with the state’s other obligations under international law.

Further, and of particular relevance to situation of internal disturbances and tensions, certain rights can never be the subject of derogation. More specifically, Article 27(2) of the American Convention enumerates particular rights that may never be suspended by state parties, namely the right to juridical personality, the right to life, the right to humane treatment, the prohibition of slavery and servitude, the principle of non-retroactivity of laws, freedom of conscience and religion, rights of the family, right to a name, rights of the child, right to nationality, and the right to participate in government, as well as the “judicial guarantees essential for the protection of such rights.” In accordance with the latter qualification and the jurisprudence of the Inter-American Court of Human Rights, non-derogable rights within the inter-American system also include the rule of law, the principle of legality, and habeas corpus and amparo remedies, which have been held to constitute judicial guarantees essential for the protection of rights that are non-derogable. /

Where an armed conflict is considered to exist, the absolute nature of these protections is reinforced by a complementary application of international human rights and humanitarian law, as many of these rights, including guarantees of humane treatment and fundamental due process protections, are also non-derogable under international humanitarian law. / As a consequence, the minimum standards prescribed under international humanitarian law cannot be suspended, even if the American Convention might otherwise permit derogation from corresponding protections. Where, for example, international humanitarian law prescribes minimum standards of due process, states cannot rely upon any permissible derogations from this right under international human rights law to avoid respect for these standards in armed conflict situations. This approach is mandated in part by Articles 27 and 29 of the American Convention, which prohibit any measures of derogation that are inconsistent with a state’s other obligations under international law and which foreclose any interpretation of the Convention that restricts the enjoyment or exercise of any right or freedom recognized by virtue of another convention to which a state is a party.

These rules establish an essential framework in order for states to ensure the protection of fundamental rights in all situations, including those in which the line between particularly violent tensions and disturbances and armed conflict may be unclear. Strict compliance with these human rights provisions in all exceptional situations can go a long way to ensuring protection for those persons who are vulnerable to abuse.

It is also important to highlight the role of the human rights bodies of the inter-American system in supervising compliance with international human rights protections, whether in the context of peace, internal disturbances and tensions, or armed conflict. In all circumstances, the Inter-American Commission on Human Rights is responsible for fulfilling its mandate of promoting the observance and protection of human rights and serving as a consultative body to the OAS in these matters, through its individual petition system, precautionary measures, on-site visits and other supervisory mechanisms. The Inter-American Commission and Court have also confirmed their competence to consider potentially applicable rules of international humanitarian law in interpreting and applying inter-American human rights instruments in situations that may constitute armed conflicts. Accordingly, even in circumstances in which the ability of the International Committee of the Red Cross or other international humanitarian law bodies to act is unclear due to uncertainties in the classification of a situation, the supervisory bodies of the inter-American system remain available to individuals as well as to Member States themselves as a means and resource of protection of fundamental rights in situations where they are most vulnerable.

I will end my presentation by emphasizing that regardless of the characterization of a situation as an armed conflict, a riot, a disturbance, or otherwise, there is no “human rights-free zone” or legal lacunae in which individuals may be treated at the unrestrained discretion of a state or where a state may otherwise renounce its duty to protect persons within its jurisdiction from violations of their fundamental rights. As previously observed by the Inter-American Commission on Human Rights, “no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights.” Ensuring respect for this basic precept is essential if the international community is to truly guarantee the protection of persons in situations of disturbances and tensions.

Thank you for your attention.


___________________________________________________________
(1). Article 1(2) of Additional Protocol II to the 1949 Geneva Conventions provides: “2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”

(2). See, e.g., Rome Statute of the International Criminal Court, 2187 U.N.T.S. 3, Art. 8(2)(d), (f) (providing that the definition of “war crimes” under paragraphs 8(2)(c) and 8(2)(e) apply “to armed conflicts not of an international character and thus [do] not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”

(3) . ICRC, Draft Additions Protocols to the Geneva Conventions - Commentary, Geneva, Oct. 1973 (CDDH/3), at p. 133.

(4) . Declaration of Minimum Humanitarian Standards, reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session, Commission on Human Rights, 51st Sess., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116 (1995) (Declaration of Turku).

(5). See, e.g., Case 11.137, Report Nº 5/97, Juan Carlos Abella, Annual Report of the IACHR 1997, para. 158; Case 10.951, Report Nº 109/99, Coard et al., Annual Report of the IACHR 1999.

(6). ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8 1996, ICJ Reports 1996, para. 25 (confirming that “the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.”).

(7). See, e.g., American Convention on Human Rights, Article 27 (specifically permitting derogations from certain rights “[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party”).

(8). See, e.g., International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 UN GAOR (Supp. Nº 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, Article 4; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, (ETS No. 5), 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 [hereinafter European Convention on Human Rights], Article 15.

(9). See, e.g., I/A Court H.R., Neira Alegría Case, Judgment of January 19, 1995, Ser. A Nº 20, paras 74-76; Case 11.010, Report Nº 15/95, Hildegard María Feldman (Colombia), Annual Report of the IACHR 1995, at 57. See similarly United Nations Human Rights Committee, General Comment Nº 29, “States of Emergency” (Article 4 ICCPR), UN Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001).

(10). I/A Court H.R. Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations, January 30, 1987, Ser. A Nº 8, paras. 21-27.

(11). See ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 (ICRC, 1987), at 392, 626, 649, 843-844.

(12). See, e.g., Case 11.137, Report Nº 5/97, Juan Carlos Abella, Annual Report of the IACHR 1997, para. 158; I/A Court H.R., Bamaca-Velasquez Case, Judgment of November 25, 2000, Ser. C No. 70 (2000), para. 207.

(13). IACHR, Precautionary measures adopted in favor of detainees at Guantanamo Bay, Cuba, March 12, 2002, p. 4.