A Review of Human Rights and IHL TO

A Review of Human Rights and IHL

TO BE HUMAN, A PERSON MUST BE ABLE: TO LIVE WITH DIGNITY AND RESPECT TO DEVELOP AND REACH FULL POTENTIAL

HUMAN RIGHTS PRINCIPLES UUUniversality The various rights belong to and are to be enjoyed by all human beings without distinction of any kind, such as race, color sex, language, religion, political and other opinion, national or social origin, property, birth or other status. Indivisibility A State should not focus on certain rights only (such as economic rights). Interdependence The enjoyment of certain rights can only be assured if other related rights are likewise enjoyed. For instance, for a human being to live with dignity, the rights to work, shelter and education must also be enjoyed.

Universal Declaration of Human Rights The UDHR is the minimum and common standard of achievement for all peoples. The United Nations General Assembly adopted it on December 10, 1948 (Human Rights Day) n 30 articles (civil, political, economic, social and cultural rights) n

Classification of Rights: • Civil Rights - • Political Rights - • Economic Rights – Articles 22 to 26 (UDHR) • Social Rights – Articles 27 & 28 (UDHR) • Cultural Rights – Articles 27 & 28 (UDHR) Articles 2 to 18 (UDHR) Articles 19 to 21 (UDHR)

Rights can also be classified as: Individual Rights Ex. - Right not to be arrested arbitrarily - Right to hold one’s beliefs - Right to run for office Collective Rights Ex. - Rights of workers to bargain collectively - Right to free primary education - Right to self-determination

Human rights may also be seen as freedoms or demands STATE DEMANDS Certain rights are enjoyed if the people are left free to exercise them: - freedom from torture Certain rights (demands) can only be enjoyed if the state intervenes (resource allocation) - freedom to hold one’s belief - education - freedom from arbitrary killing - freedom of assembly - freedom of movement PEOPLE - public health care - public services

Human Rights are deemed to be State obligations and therefore the State is obliged to: RESPECT - abstain from doing anything that would violate the dignity of the individual or the individual’s freedom of action PROTECT - prevent other individuals or groups from violating the integrity, freedom of action, or the other rights of the individual FULFILL - work towards the progressive realization of these rights by mobilizing its resources for this purpose

Rights may also be classified as: - absolute (non-derogable) - derogable -SOME ABSOLUTE RIGHTS: right not to be deprived of life arbitrarily right not to be tortured right to a name and personality Derogation is allowed if: - warranted by the situation - done in accordance with established procedure

In human rights practice, it is recognized that not all people are equal, and that some groups require more protection than others. These are called vulnerable groups. n n n n n WOMEN CHILDREN PRISONERS ALIENS WORKERS DISABLED PERSONS AGEING PERSONS MINORITIES/INDIGENOUS POPULATIONS MIGRANTS

Human rights ideals are found in international instruments (declarations, conventions, treaties, etc. ) such as: • The Universal Declaration of Human Rights • The International Covenant on Civil and Political Rights • The International Covenant on Economic, Social and Cultural Rights UNIVERSAL STANDARDS DOMESTIC STANDARDS States that accede to international instruments are expected to incorporate into their national laws the universally-accepted human rights standards. . . DOMESTIC APPLICATION . . . and make sure that these are implemented in reality.

Kinds of human rights instruments: • general and special instruments • global and regional instruments • binding and non-binding instruments

General instrument - comprises a wide range of human rights (ex. Universal Declaration of Human Rights) Special instrument - deals with specific subjects such as rights of women, rights of the child, employment, freedom of information, etc. Non-binding instrument - does not oblige the signatories to enact the provisions into law, but just the same form part of international law and is often quoted in national law and jurisprudence. It is an expression of good intentions and as such carries great moral force. Binding instrument - places obligations on the signatories, such as: • enacting the provisions into national laws • periodic reporting of accomplishments

Classification of Rights: • International Covenant on Civil and Political Rights Civil Rights - Convention Articlesagainst 2 to 18 (UDHR) Torture and Other Cruel Treatment Convention on the Protection of All Persons from Enforced Disappearances • Political Rights - • Economic Rights – Articles 22 to 26 (UDHR) • Social Rights – Articles 27 & 28 (UDHR) • Cultural Rights – Articles 27 & 28 (UDHR) Articles 19 to 21 (UDHR)

Classification of Rights: • Civil Rights - • Covenant Civil and Political Rights International - Articles 19 toon 21 (UDHR) Articles 2 to 18 (UDHR) Convention on the Political Rights of Women • Economic Rights – Articles 22 to 26 (UDHR) • Social Rights – Articles 27 & 28 (UDHR) • Cultural Rights – Articles 27 & 28 (UDHR)

Classification of Rights: • Civil Rights - • Political Rights - Articles 2 to 18 (UDHR) Articles 19 to 21 (UDHR) International Covenant on Economic, Social and Cultural Rights • Economic Rights –Various Articles 22 to 26 (UDHR) ILO Conventions G. A. . Resolution – Permanent Sovereignty over Natural Resources • Social Rights – Articles 27 & 28 (UDHR) • Cultural Rights – Articles 27 & 28 (UDHR)

Classification of Rights: • Civil Rights - • Political Rights - • Economic Rights – Articles 22 to 26 (UDHR) Articles 2 to 18 (UDHR) Articles 19 to 21 (UDHR) International Covenant on Economic, Social and Cultural Rights • Social Rights – Articles & 28 (UDHR) in Education Convention 27 against Discrimination Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages • Cultural Rights – Articles 27 & 28 (UDHR)

Classification of Rights: • Civil Rights - • Political Rights - • Economic Rights – Articles 22 to 26 (UDHR) • Social Rights – Articles 27 & 28 (UDHR) • Articles 2 to 18 (UDHR) Articles 19 to 21 (UDHR) International Covenant on Economic, Social and Cultural Rights – UNESCO Articles 27 & 28 (UDHR) Universal Declaration on Cultural Diversity UNESCO Convention for the Protection of the World

Examples of International Instruments for the Protection of Special Groups n n n n Convention on the Elimination of All Forms of Discrimination against Women Convention on the Nationality of Married Women Declaration on the Elimination of Violence against Women Convention on the Rights of the Child ILO Convention on the Elimination of the Worst Forms of Child Labor U. N. Standard Minimum Rules for the Administration of Juvenile Justice ILO Convention concerning Freedom of Association and Protection of the Right to Organise ILO Convention concerning the Protection of Wages ILO Convention concerning the Promotion of Collective Bargaining Convention concerning Indigenous and Tribal Peoples in Independent Countries Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live Standard Minimum Rules for the Treatment of Prisoners U. N. Principles for Older Persons International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities

International standards are expected to be adopted by States and incorporated in: 1. National Constitution 2. Penal Code 3. Laws 4. City, provincial, municipal laws and regulations 5. Other local laws, codes, etc.

Human rights law generally does not create obligations for non-state actors. While the State has the obligation to realize these rights as primary duty bearers, individuals are expected to respect the rights of others. Individual acts that abuse human rights are considered common crimes.

Traditionally, human rights violations have been seen as acts committed by the State or its agents. In recent developments, acts committed by non-State actors have been considered as human rights violations. This started with the coming into force of the Convention on the Elimination of Discrimination against Women, which recognized violence against women, whether committed by public or private individuals, as human rights violations. The new developments indicate that human rights violations can be committed in situations where there is an ascendancy by a certain group. EMPLOYERS over WORKERS MALES over FEMALES ADULTS over CHILDREN

LISTING OF RIGHTS INDIVIDUAL CIVIL AND POLITICAL RIGHTS Life (Right to) Freedom from capital punishment (Right to) Be equal before the law (Right to) Equality of the sexes (Right to) Protection from abuse of authority (Right to) Juridical personality (Right to a) Name (Right to a) Liberty of person (Right to) Security of person (Right to) Freedom from slavery (Right to) Freedom from torture (Right to) Freedom from inhuman treatment or punishment (Right to) Freedom of assembly (Right to) Freedom of association (Right to) Freedom of conscience (Right to) Freedom of expression (Right to) Access to public information (Right to) Access to personal information (Right to) Freedom to receive, seek and impart information (Right to) Reply (Right to) Liberty of movement (Right to) - Leave (Right to) - Return (Right to)

LISTING OF RIGHTS INDIVIDUAL CIVIL AND POLITICAL RIGHTS (CONTINUED) Religious freedom (Right to) Freedom indispensable for creative activity (Right to) Enjoyment of scientific progress and its applications (Right to) Not to be arbitrarily exiled (Right) Respect for home (Right to) Respect for one's honour (Right to) Privacy (Right to) Freedom from debtor's imprisonment (Right to) Freedom from discrimination (Right to) Freedom from incitement to hatred (Right to) Freedom from incitement to violence (Right to) Freedom from war propaganda (Right to) Protection of reputation (Right to) Participate in free and periodic elections (Right to) Political participation (Right to) Vote (Right to) Equality of spouses (Right to) Marriage (Right to) Found a family (Right to) Respect for family life (Right to) Have limitation implemented according to a procedure (Right to)

LISTING OF RIGHTS GENERAL ECONOMIC, SOCIAL AND CULTURAL RIGHTS Development, participation in (Right to) Adequate food (Right to) Adequate standard of living (Right to) Adequate housing (Right to) Adequate clothing (Right to) Healthy environment (Right to) Public health care (Right to) Social and medical assistance (Right to) Social security benefits (Right to) Free choice of employment (Right to) Access to public property (Right to) Property (Right to) Access to public services (Right to) Work (Right to) Protection from exploitation (Right to) Protection by minimum age (Right to) Vocational guidance (Right to) Vocational training (Right to) Occupational rehabilitation (Right to)

LISTING OF RIGHTS GENERAL ECONOMIC, SOCIAL AND CULTURAL RIGHTS (CONTINUED) Access to culture (Right to) - Participation in cultural life (Right to) - Protection of moral and material interests (Right to) - Conservation of science and culture (Right to) - International contacts and co-operation (Right to) Access to education (Right to) - Progressive implementation of compulsory and free primary education (Right to) - Progressive implementation of free secondary education (Right to) - Choice of education (Right to) - Establishment and directing of non-state schools (Right to) Linguistic freedom (Right to) Freedom for scientific research and creative activity (Right to)

LISTING OF RIGHTS OF CHILDREN AND JUVENILES Protection from violence (Right to) Child safety (Right to) Child nutrition (Right to) Child health care (Right to) RIGHTS OF WOMEN Protection from violence (Right to) Political participation (Right to) Protection of employed women (Right to) Protection of pregnant women (Right to) Maternity leave (Right to) RIGHTS OF DISABLED PERSONS Assistance for persons with disabilities (Right to) Sheltered employment (Right to) Social resettlement (Right to) Disability benefits (Right to) RIGHTS OF AGEING PERSONS Protection (Right to) RIGHTS OF ALIENS Review of expulsion case (Right to) Territorial asylum (Right to) Family reunion (Right to) Freedom from deportation (Right to)

LISTING OF RIGHTS OF MINORITIES Collective enjoyment of rights and freedoms (Right to) RIGHTS OF WORKERS Advance notice of dismissal (Right to) Apprenticeship (Right to) Free employment services (Right to) Collective bargaining (Right to) Appropriate bargaining machinery (Right to) Form and join trade unions (Right to) Strike (Right to) Fair wages (Right to) Joint consultations (Right to) Just working conditions (Right to) Safe and healthy working conditions (Right to) Progressive reduction of working hours (Right to) Remuneration for overtime work (Right to) Annual holidays (Right to) Paid leave (Right to) Weekly rest periods (Right to) Employment benefits (Right to)

LISTING OF RIGHTS OF ARRESTED AND ACCUSED PERSONS Lawful arrest (Right to) Release in case of unlawful arrest (Right to) Release pending trial (Right to) Be separated from convicts (Right to) Be presumed innocent (Right to) Adequate time and facilities (Right to) An impartial judiciary (Right to) An independent judiciary (Right to) Free assistance of an interpreter (Right to) Prompt and detailed information (Right to) Prompt trial (Right to) Fair trial (Right to) Public trial (Right to) Legal assistance (Right to) Freedom from double jeopardy Communication with defence (Right to) Examination of witnesses (Right to) Be heard in person (Right to) Freedom from giving self-incriminating evidence (Right to)

LISTING OF RIGHTS OF DETAINED AND IMPRISONED PERSONS Treatment with dignity and humanity (Right to) Be separated from convicts (Right of detainees to) Adequate accommodation (Right to) Adequate food (Right to) Adequate medical services (Right to) Information about regulations (Right to) Making complaints (Right to) RIGHTS OF CONVICTED PERSONS Appeal (Right to) Seek commutation (Right to) Seek pardon (Right to) Appropriate work (Right to) Treatment aimed at reform and social re-adaptation (Right to)

INTERNATIONAL HUMANITARIAN LAW (IHL)

IHL is a specific category of rules of International Law applicable in times of armed conflict ü These rules have to be respected by ALL PARTIES to the conflict. EVEN WAR HAS LIMITS!

Scope and Aim of IHL SCOPE • International armed conflict • Non-international armed conflict AIM • To limit and alleviate the consequences of war as much as possible • To reconcile the conflicting interests of military necessity and humanity

Components of IHL CUSTOMARY LAW • established custom • principle of humanity • dictates of public conscience TREATY LAW • Hague Convention Prohibition of and limitation on use of certain conventional weapons • Geneva Conventions Protection of certain persons and objects GC I (1864): wounded & sick armed forces in the field GCII (1906): wounded, sick & shipwrecked armed forces at sea GCIII (1929): POWs GCIV (1949): civilians

§ Additional Protocols to Geneva Conventions of 1977: • Protocol 1 (IAC) and Protocol II (NIAC) § protection of certain persons and objects § prohibition of and limitation on use of certain means and methods of warfare in armed conflict § Ottawa Treaty of 1997: • prohibition of anti-personnel mines § Rome Statute of 1998: • establishment of an International Criminal Court (ICC)

IHL APPLICABLE TO NONINTERNATIONAL ARMED CONFLICTS : • Common Article 3 of the four Geneva Conventions • Additional Protocol II of 1977 Convention • Conventions on means and methods of warfare • Protocol on Involvement of Children in Armed Conflict • Statute of International Criminal Court

THREE FUNDAMENTAL RULES ON THE CONDUCT OF HOSTILITIES 1 ST RULE: Distinction between combatants and civilians at all times (persons and objects)

MILITARY OBJECTIVES: § Combatants § Establishments, positions, or buildings where combatants and their materiel are located § Other objects whose nature, location, purpose or use make an effective contribution to military action, and total or partial destruction, capture or neutralization, in the circumstances prevailing at the time, offers a definite military advantage MILITARY OBJECTIVES: § Are allowed to take part in hostilities § May be attacked

PROTECTED PERSONS AND OBJECTS: § § civilians, civilian population civilian places and objects 1. Medical zones and property 2. Objects for survival (water and food supply, agriculture, livestock) 3. Cultural and religious places 4. Installations with dangerous forces (dams and chemical plants, nuclear and electrical generation stations) 5. Demilitarized / peace zones

§ Persons and objects under specific protection are: • children victims (refugees, IDPs) those rendered hors de combat (captured combatants, wounded, sick) bearer of flag of truce • bearer of red cross/crescent/crystal emblem • civilian and military medical services • • •

Distinctive signs q Misuse and abuse is prohibited q Bearer of distinctive signs • shall not be attacked • shall not take part in hostilities • shall be allowed to fulfil their • assignment • their mission, contents and • effective use may be verified

2 ND RULE: PROPORTIONALITY – refraining from causing excessive and unnecessary damage

3 RD RULE: PROHIBITION AGAINST CAUSING UNNECESSARY SUFFERING or SUPERFLUOUS INJURY

LIMITATIONS AND PROHIBITIONS ON THE USE OF WEAPONS LIMITATIONS Anti-vehicle mines - only place in close vicinity of a military objective - warning measures taken Incendiary weapons - only against military objectives clearly separated from civilian objects PROHIBITIONS - anti-personnel mines - dumdum bullets - not detectable by x-rays - poison or poisoned weapons - chemical weapons - biological weapons