Humanitarian Law in Armed Conflict: The Role of International Nongovernmental

Organizations
Author(s): David Weissbrodt
Source: Journal of Peace Research, Vol. 24, No. 3, Special Issue on Humanitarian Law of Armed
Conflict (Sep., 1987), pp. 297-306
Published by: Sage Publications, Ltd.
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ISSN 0022-3433 Journal of Peace
Research,
vol.
24,
no.
3, 1987
Humanitarian Law in Armed Conflict: The Role of
International
Nongovernmental Organizations*
DAVID WEISSBRODT
School of
Law, University
of Minnesota
The article identifies five
principal
reasons for international
nongovernmental organizations
to use
humanitarian law in
seeking
to
protect
human
rights during periods
of armed conflict and also notes
three difficulties in
using
humanitarian law. International
nongovernmental organizations,
aside from
the International Committee of the Red
Cross, possess
an
important
role in
assessing
whether
govern-
ments and armed
opposition groups
are
respecting
their human
rights
and humanitarian law
obligations.
Americas
Watch, Amnesty International,
the International Commission of
Jurists,
and other
organ-
izations have for some time been
using
humanitarian law and human
rights
law in armed conflict
situations.
They
need to become more consistent and careful in
using
humanitarian
law; they
can also
learn from the
experience
of the Red Cross in how to be more effective in
safeguarding
human
rights
during periods
of armed conflict.
1. Introduction
Governments are
principally responsible
for
the
implementation
of international human
rights
and humanitarian law
during periods
of armed conflict.'
During
non-international
armed
conflicts,
governments
and armed
opposition groups may
each bear
responsi-
bility
for their obedience to these norms.2
International
organizations
can
only
encourage
the
participants
in armed conflicts
to
respect
human
rights
and humanitarian
law. The International Committee of the
Red Cross
(ICRC)
has
long pursued
a lead-
ing
role in
working
for the
application
of
humanitarian law
during periods
of armed
conflict;
it has also
begun recently
to refer to
human
rights
law in situations of internal
strife or tensions not covered
by
interna-
tional humanitarian law.3 The United
Nations General Assembly
,
the UN Com-
mission on Human
Rights,
the International
Court of
Justice,6
the Inter-American Com-
mission on Human
Rights,7
and several other
intergovernmental organizations
have
occasionally attempted
to use their influence
to seek the
protection
of human
rights during
armed
conflicts and have
irregularly
referred
to humanitarian law in such endeavors." All
these
organizations
have
sought partially
to
fill the vacuum left
by
the failure of the
UN
Security
Council and other international
mechanisms to deal
successfully
with armed
conflict situations.
International
nongovernmental organiz-
ations,'
such as Americas
Watch, Amnesty
International,
the International Commission
of
Jurists,
and the International
League
for
Human
Rights,
have
recognized
that human
rights
violations within their
respective
areas
of concern
may
occur
during periods
of
armed conflict.
Indeed,
serious human
rights
violations,
including arbitrary killings,
deten-
tion,
and
ill-treatment,
are
likely
to increase
in times of armed conflict. For
example,
in
its Annual
Report
of
1986,
Amnesty
Interna-
tional identified 21 countries where armed
conflicts were
occurring
or had
occurred,
such that human
rights
issues were noted:
Afghanistan, Angola,
Botswana
(South
African
attacks), Burma, Chad, Colombia,
El
Salvador, Ethiopia, Guatemala,
Hon-
duras
(Nicaraguan
armed
opposition
groups),
Israeli
Occupied Territories,
Kam-
puchea,
Lebanon,
Lesotho
(South
African
attacks), Mozambique, Namibia,
Philippines, Somalia, Sudan,
Uganda,
and
Vietnam."' The 1986 Annual
Report
also
notes
Amnesty
International's concern
about
prisoners
held
by
the Polisario Front
and thus
tangentially
mentions the conflict
in Morocco and the Western Sahara. The
report,
however,
fails to mention the war
between Iran and
Iraq.
In
dealing
with human
rights
violations,
*
The author wishes to thank
Kathy
Ellis of the Uni-
versity
of Minnesota Law School Class of
1987,
for her
assistance in the
preparation
of this article.
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All use subject to JSTOR Terms and Conditions
298 David Weissbrodt
nongovernmental organizations
have relied
principally upon
the Universal Declaration
of Human
Rights'1
and the International
Covenant on Civil and Political
Rights,12
but
these
organizations
have
begun
to refer more
frequently
to
principles
of humanitarian law
applicable
to armed conflict
situations,
for
example,
those norms found in the four
Geneva Conventions of 12
August
1949 and
the two Additional Protocols of 8 June
1977.13
There are five
principal
reasons
why
non-
governmental organizations
have found
norms of humanitarian law to
provide
a use-
ful additional
legal
foundation for their con-
cerns.14 First,
the Geneva Conventions of
1949 have been ratified
by
165 countries15
while the International Covenant on Civil
and Political
Rights
has been ratified
by
about 83 nations. 16
Second,
some of the
prin-
ciples
of international humanitarian law are
more
specific and/or
more
exacting
than the
provisions
of international human
rights
law.17
Third,
humanitarian law
applies
specifically
to situations of armed conflict in
which abuses are
likely
to
occur;
interna-
tional human
rights
law
permits significant
derogations during
these same
periods.18
Fourth, military
and law enforcement offi-
cials often do not take international human
rights
law
seriously,
but
they
consider
international
humanitarian law to be
worthy
of
respect. 9
Fifth,
humanitarian law
specifi-
cally
covers abuses
by
both
governments
and
armed
opposition groups,
while interna-
tional human
rights
law deals
principally
with
the
responsibilities
of
governments.21
Despite
these
advantages
in
using
interna-
tional humanitarian
law,
there are several
disadvantages:
First, nongovernmental
organizations
have
just begun
to master the
complex
structure of humanitarian law and
may experience
some
difficulty
in
using
humanitarian law
effectively
with the media
and with members who
require relatively
simple approaches
to human
rights prob-
lems. Second, armed conflict situations often
inhibit the
gathering
and assessment of infor-
mation about human
rights
violations.
Humanitarian law
may require
even more
difficult
factfinding tasks,
for
example,
in
determining
whether a
particular
situation
qualifies
as an international armed
conflict,
an international armed conflict
involving
a
national liberation
struggle
under Additional
Protocol
I,
a non-international armed con-
flict under common Article 3 of the four
Geneva
Conventions,
or a non-international
armed conflict under the more limited ambit
of Additional Protocol II. Without such an
assessment,
an
organization
cannot
apply
the
correct
principles
of humanitarian law. Simi-
larly,
human
rights organizations may
need
to
develop
facts as to whether armed
oppo-
sition
groups
are
functioning
so much like
governments
that
they
should become the
subject
of
appeals
for
respecting
human
rights and/or
humanitarian law.
Third,
non-
governmental organizations
have
difficulty
in
effectively alleviating
human
rights
abuses
during
armed
conflicts,
and humanitarian
law
may
not
significantly improve
these
problems
of effectiveness.
This article
briefly
reviews the work of
nongovernmental organizations
in
seeking
the
application
of human
rights
and humani-
tarian law
during
situations of armed
conflict. The article next considers the
pre-
eminent
position
of the International Com-
mittee of the Red
Cross,
as a
private
Swiss
organization
with international activities and
with
specific
functions
provided by
interna-
tional humanitarian law. The article con-
siders what role other
nongovernmental
organizations
can
play
in situations of armed
conflict.
Because of the
necessary brevity
of this
article in the
present comprehensive
volume,
it is not
possible
to
explore
more
fully
the
reasons
why
international
nongovernmental
organizations
should cite or
might
be reluc-
tant to refer to humanitarian norms in
sup-
port
of their human
rights
concerns. It is also
not
possible
to examine the factors
affecting
factfinding
in
periods
of armed conflict.
Many nongovernmental organizations
focus
primarily upon
human
rights
violations
and seek to
persuade governments
to fulfill
their human
rights and/or
humanitarian law
obligations.
Persuasion can be
accomplished
by diplomatic
contacts with the
government
concerned, appeals through
the media,
letter-writing campaigns,
communications to
intergovernmental organizations,
and efforts
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Humanitarian Law in Armed
Conflict
299
to
encourage
other
governments
to inter-
cede. Some
organizations,
such as
Amnesty
International and the
ICRC,
also assist
human
rights
victims. International Alert22
is a
relatively
new
organization
which inter-
venes not
only
about the human
rights
viol-
ations,
but also with
regard
to the
underlying
causes or conflicts which
engender
the viol-
ations. It will be
necessary
to leave to
another occasion a further assessment of the
effectiveness of the work of
nongovernmen-
tal
organizations against
human
rights
viol-
ations
during
armed conflicts.
2. Practice
of
International
Nongovernmental Organizations
in
Referring
to International Humanitarian
Norms
There is a considerable
diversity
in the
way
nongovernmental organizations
use humani-
tarian law in their work and how
they
approach
armed conflict situations. The
diverse
approaches
in
reports by
a
single
organization might
be
explained by
different
authors,
by
a failure to
develop
consistent
supervision
over the content of
reports,
and
by
the slow
learning process
in
recognizing
the
importance
of humanitarian law.
2.1 A Few
Reports
Issued
by
Americas
Watch
The Americas Watch
report
entitled Viol-
ations
of
the Laws
of
War
by
Both Sides in
Nicaragua
1981-198523
establishes a com-
plete legal
framework for the
application
of
common Article
3,
Additional Protocol
11,24
and
customary
international law. This 1985
report
considers with
precision
the facts
which would determine how the armed con-
flict in and near the frontiers of
Nicaragua
should be characterized under humanitarian
law
principles. Having initially
established
the framework for
applying
humanitarian
law,
the
report
does not
carry through
its
analysis by applying
the substantive norms
to the facts
developed
in the latter
part
of
the
report. Instead,
the facts are
reported
without the
application
of
legal
norms.
The Americas Watch
Report
on Colombia
uses a different
approach
to humanitarian
law issues.25 The
report
sets forth the facts
without
any
use of
legal principles
to assess
whether human
rights
violations have
occurred. An
appendix
to the
report begins
with the
following
observation:
Americas Watch has
reported
on violations of the
laws of war in several countries with
ongoing
internal
armed conflicts. One reason is
that,
unlike interna-
tional human
rights law,
the laws of war bind not
only governments
but also
nongovernmental
forces
combatting them,
such as Colombia's
guerrillas.
Accordingly, reference
to
international humani-
tarian law
permits us to avoid
partisanship
in such
conflicts
by giving
us a
legal
basis for
assessing
abuses
by
both sides.
Also,
human
rights
law was
designed
essentially
for
peace
time situations. It contains no
rules
governing military operations by
the con-
tending parties;
it offers no
guidelines,
for
example,
as to what constitutes a
legitimate military target,
or
how much force can be used to attack that
target.26
The
appendix
to the 1986 Colombia
report
is not so
thorough
and
scholarly
in its estab-
lishment of a framework for the
application
of humanitarian
law, as was the 1985 Nica-
ragua report.
Instead,
the Colombia
report
is
relatively simplistic
in not
sufficiently
ana-
lyzing
the armed conflict to determine if com-
mon Article 3
applies.
A
relatively simplistic
reliance
upon
common Article 3
may
have
been
appropriate
to the armed conflict in
Colombia and
may
have been
necessary
to
keep
the attention of the nontechnical audi-
ence which Americas Watch wanted to
address. But the Colombia
appendix pro-
ceeds to
apply
the
provisions
of common
Article 3 to the facts
developed
in the
body
of the
report. Accordingly,
the Colombia
report
is more successful than the
Nicaragua
report.
Both
reports,
however,
are remark-
able for
nearly ignoring
international human
rights
law and
preferring
to use humanitarian
law,
apparently
because of a
political
sense
that humanitarian law will be more influ-
ential with US
public opinion
-
the
principal
audience which Americas Watch strives to
reach.
2.2 A
Sample of Reports
Issued
by
Amnesty
International
Amnesty
International
(AI)
has
sporadically
made use of humanitarian law for
many years
in
dealing
with
torture,
the
imprisonment
of
prisoners
of conscience, executions, and
unfair trials in
political cases, arising during
periods
of armed conflict. The limited man-
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300 David Weissbrodt
date of
AI,
for
example,
to work for the
release of
prisoners
of conscience and for
fair trials in
'political'
cases does not fit
easily
within the
legal
structure of humanitarian
law.
Nevertheless, during
the last few
years
there has been an
improvement
in the
sophis-
tication of
Amnesty
International's efforts
during periods
of armed
conflict,
although
its
practice
is still not
entirely
consistent.2
In
Amnesty
International's
open
letter of
1981 to the US
Secretary
of State in relation
to
military
assistance to the Government of
El Salvador there is a brief reference to
the Salvadoran
Constitution,
the Universal
Declaration of Human
Rights,
the Interna-
tional Covenant on Civil and Political
Rights,
and the American Convention on
Human
Rights.
The letter states
further,
Amnesty
International is aware that these human
rights
violations in El Salvador are
occurring
at a
time of civil conflict between
guerilla groups
and the
Salvadoran
government.
....
We note that all of
the human
rights
instruments referred to above also
stipulate
that even in time of war
governments may
not
derogate
from their commitment not to
subject
anyone
to
arbitary deprivation
of life or torture or
other cruel,
inhuman or
degrading
treatment.
Indeed,
to the extent that the
present
state of
hostilities in El Salvador
might
be considered to be
an armed conflict not of an international
character,
such actions
by any party
are in direct violation of
Article 3 of the four Geneva Conventions on the
Protection of Victims of War of 12
August
1949.
The letter
proceeds
to
quote
from common
Article 3 at some
length.28
2.3 A
Sample of Reports
Issued
by
the
International Commission
of
Jurists
The International Commission of Jurists
(ICJ)
has used humanitarian law in a
soph-
isticated fashion on some occasions and has
almost
ignored
humanitarian law on others.
For
example,
in 1972 the International Com-
mission of Jurists
published
a
study
of events
in East Pakistan
during 1971,
which led to the
creation of
Bangladesh.29
The
study
assessed
the facts
presented
under the
provisions
of
the International Bill of Human
Rights,
the
Convention on the Elimination of Racial
Discrimination, the Geneva Conventions,
the Genocide Convention, and the cus-
tomary
international law
forbidding
crimes
against humanity.
With
respect
to the non-
international armed conflict within East
Pakistan,
the ICJ
report
relied
principally
and
properly upon
common Article
3,
but
also referred to other
provisions
of the
Geneva Conventions in
assessing
the con-
duct of the brief international armed conflict
between India and Pakistan.
A
contrasting example may
be found in
the
report
which the International Com-
mission of Jurists
published
in 1979 entitled
Human
Rights
in Guatemala30 which dis-
cussed the historical and
contemporary
viol-
ence in that
country
and the human
rights
abuses which had occurred. The
report
men-
tioned the American Convention on Human
Rights only
in
passing
and would have been
strengthened by
more
specific
references to
provisions
of both human
rights
and humani-
tarian law.
3.
Relating
to ICRC Work in Periods
of
Armed
Conflict
Since the International Committee of the
Red Cross has
long
held the
leading
role
in
protecting
certain basic human
rights
in
armed conflict
situations,
it is useful for other
nongovernmental organizations
to
study
the
work of the ICRC for
any
lessons to be
learned from their
experience
and to con-
sider how the work of the ICRC can be
supplemented by
the efforts of other
organ-
izations. The other contributions to this vol-
ume render it
uncessary
to describe the
ICRC and its activities at this
juncture.31
3.1 What Can Other
Organizations
Learn
from
the ICRC
Experience?
Other
organizations
can learn from the
ICRC's
experience
at least insofar as the
effectiveness of
techniques might
be con-
cerned. As to all matters in which the ICRC
may
believe that a violation of humanitarian
law has occurred or
may
be
prevented,
the
ICRC
may
make
approaches
to the relevant
authorities. In
principle,
such
represen-
tations are made without
any publicity.
The
primary
task of the ICRC is
aiding
the vic-
tims of armed conflicts. The ICRC com-
municates its concerns in confidence to the
authorities because it does not wish to
become
engaged
in
public
controversies
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Humanitarian Law in Armed
Conflict
301
which
might jeopardize
its assistance and
protection
work for victims.
While the ICRC's efforts to
put
an end to
violations of international humanitarian law
or to
prevent
such violations are in
principle
confidential,
the ICRC has reserved 'the
right
to make
public
statements
concerning
violations of international humanitarian
law'32 under limited conditions.33
If a human
rights organization
intends to
comment
upon
the human
rights
violations
committed
by
the
government
on one side
of an armed
conflict,
the
organization may
be
expected
to include some statements in
its
reporting
about the abuses
perpetrated
by
the other
party
in the conflict whose mis-
deeds
may
be the cause or at least the excuse
for the
repression.
Such efforts to balance
human
rights reporting may help
one
party
to the conflict to find
justification
for their
previous
human
rights
violations or for their
future
reprisals.
This
paradox
demonstrates
the
difficulty
of
any
effort to balance
report-
ing
and, indeed,
the
extremely
hazardous
character of
any
increased
activity
in
periods
of armed conflict.
If a human
rights organization
were to
publish
information about
torturing
or
killing
prisoners
of war or civilians
by only
one side
of a
conflict,
the
organization
will
probably
be criticized for
taking
sides in the war or for
having purveyed enemy propaganda.
For the
ICRC such an accusation would be
very
damaging,
because the ICRC
attempts
in
many respects
to serve as a neutral inter-
mediary
between
belligerent parties. (The
ICRC
helps
to
exchange prisoners,
assist
wounded
soldiers,
transmit POW corre-
spondence, etc.)
Other human
rights organ-
izations do not
attempt
to serve in
any
such
intermediary
role and are thus more
capable
of
making public
comments about human
rights
violations. If human
rights organ-
izations wish
impartially
to
pursue
their con-
cern for human
rights
in
criticizing
violations
by governments
even in times of armed con-
flict,
these
organizations
must at least
pro-
ceed
with the
awareness
that
governments
will be
particularly quarrelsome
and sensitive
at such times. While humanitarian
legal
obli-
gations
are
applicable
to each
government
regardless
of abuses committed
by any
opposing party, organizations may attempt
to
encourage governments
to
provide greater
protections
on a
reciprocal
basis.
In
considering
those
lessons,
one must be
aware of the
important
differences between
the ICRC and other
organizations
in struc-
ture,
principles,
and
techniques.34 Despite
the considerable area of
potential overlap
between the work of the ICRC and other
organizations,
there
are, however, signifi-
cant differences in the
techniques ordinarily
employed by
the ICRC and other human
rights organizations.
The ICRC makes most
of its
approaches
to
governments
in con-
fidence. Most other human
rights organ-
izations use a
range
of
approaches
to
governments including
direct
contacts,
membership appeals, publicity campaigns,
etc.
One
major
difference between the
approaches
available to the ICRC and those
available to other human
rights organ-
izations is that the ICRC has been
given
specific
tasks under international humani-
tarian
treaties,
while other
organizations
have not. Another difference is noted in a
report
of an
AI
mission to Viet Nam:
Amnesty
International is not
professionally
equipped
to
carry
out
prison
visits in the manner
that the International Committee of the Red Cross
(ICRC)
can.
Thorough camp inspections
necessitate
lengthier
visits to more
camps
and would
require
medical
expertise among
the
inspection team.35
Such efforts also
require repeated
visits to
the same
prison.
As to structure: the ICRC has both a
large
central staff and
regional
offices which
regu-
larly
visit
places
of
detention,
provide
relief,
work with National Red Cross and Red Cres-
cent
Societies,
etc.
Amnesty
International is
based
upon
a
very
diverse
membership
with
sections and active
groups
in 60
countries,
which
provides
financial
support
for the
organization
and assists with
appeals
to
governments; AI's
research and
factfinding
work is centralized in London. Americas
Watch and most of the other human
rights
organizations
identified
in
this article have
central offices, but have no effective
membership
or
grass-roots campaigning
capacity.
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302 David Weissbrodt
3.2 How should Other Human
Rights
Organizations
and the ICRC Relate to
Each Other in
Working for
the Protection
of
Human
Rights During
Periods
of
Armed
Conflict?
Bearing
in mind the
important
differences
between the ICRC and other human
rights
organizations,
there remains the
question
as
to how such
organizations might
continue to
work without undue interference with each
other. One
possible approach
would be to
recognize
the ICRC's
long-standing
and
very
successful efforts in
periods
of armed
conflict. It
might
be
argued
that other
organ-
izations should
generally
leave this field to
the ICRC.
Other human
rights organizations have,
however, increasingly
found that human
rights
violations have occurred at the time of
armed conflict. These human
rights organ-
izations cannot
ignore
the human
rights
viol-
ations. The
fact-gathering capacity
and
diverse methods of action available to other
human
rights organizations may complement
the ICRC's work.
Indeed,
the ICRC has
indicated its
acceptance
of and
appreciation
for the role of other human
rights organ-
izations in
bringing
human
rights
violations
to the attention of the ICRC and the
public,
where the ICRC must
only
receive infor-
mation and not disseminate it. In this
regard,
it is
interesting
to note a statement made in
1983
by
Hans-Peter
Gasser, Legal
Adviser
of the International Committee of the Red
Cross:36
The aim of a number of
non-governmental organ-
izations is to
promote respect
for human
rights.
Some of these
organizations
have also undertaken
to exercise their
activity
in situations covered
by
the
Geneva Conventions (for example
the International
Commission of Jurists and
Amnesty International).
The
reports published by
these two
organizations,
exposing
violations committed in armed conflict
may
help
influence
public opinion.
The
activity
of non-
governmental organizations may
be able to
promote
respect
for humanitarian law
by
the
belligerents.
Their
independence
of
any
State
power guarantees
them considerable freedom of action and at the same
time creates the conditions necessary
for
judgments
free of
any political
influence
-
advantages
which
have to
go
hand in hand with impartiality
and a keen
sense of
responsibility.
The discreet
approach
of the ICRC is
comp-
lementary
to the
activity
of other human
rights organizations
in that the ICRC
gen-
erally
avoids
publicity
and thus
preserves
its
access to
prisoners.
Most other human
rights
organizations publicize
violations but such
publicity may prevent
these
organizations
from
having
much access to
prisoners.
It is
important,
however,
for all human
rights organizations
to
protect
their
separate
identities. The ICRC would not want to
appear
to be a collaborator with more out-
spoken
human
rights organizations,
because
the ICRC would not want to be denied access
to
prisoners
as a result of statements
by
unrelated
organizations. Similarly,
the
International Commission of Jurists
may
have
easy
access to the authorities of a
par-
ticular
country
and
may
be able to influence
those officials towards the
protection
of
human
rights,
while
Amnesty
International
has
publicly
criticized the same
country
and
lacks access. For the effectiveness of each
organization
and for the overall effectiveness
of human
rights efforts,
it is critical that each
organization preserve
its
independence
and
separate identity.
4. Conclusion
International
nongovernmental organiz-
ations,
aside from the International Com-
mittee of the Red
Cross,
possess
an
impor-
tant role in
assessing
whether
governments
and armed
opposition groups
are
respecting
their human
rights
and humanitarian law
obligations.
Americas
Watch,
Amnesty
International,
the International Commission
of
Jurists,
and other
organizations
have for
some time been
using
humanitarian law and
human
rights
law in armed conflict situa-
tions.
They
need to become more consistent
and careful in
using
humanitarian
law;
they
can also learn from the
experience
of the
ICRC in how to be more effective in safe-
guarding
human
rights during periods
of
armed conflict.
NOTES
1. See International Covenant on Civil and Political
Rights,
Art.
2,
entered into
force
March
23, 1976,
G.A.
res.
2200A;
21 UN
GAOR, Suppl. (no. 16)
49,
UN Doc.
A/6316 (1967);
common Article 1 of
the Geneva Conventions of 12
August
1949:
Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed
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All use subject to JSTOR Terms and Conditions
Humanitarian Law in Armed
Conflict
303
Forces in the
Field,
6 UST
3114,
TIAS no. 3362,
75 UNTS 31
[hereinafter
cited as First Geneva
Convention];
Geneva Convention for the Ameli-
oration of the Condition of
Wounded,
Sick and
Shipwrecked
Members of the Armed Forces at Sea,
6 UST 3217,
TIAS no. 3363, 75 UNTS 85
[Second
Geneva
Convention];
Geneva Convention Relative
to the Treatment of Prisoners of
War,
6 UST
3316,
TIAS no.
3364,
75 UNTS 135
[Third
Geneva Con-
vention];
Geneva Convention for the Protection of
Civilian Persons in Time of
War,
6 UST
3516,
TIAS no.
3365,
75 UNTS 287
[Fourth
Geneva
Convention;
hereinafter
collectively
cited as the
Geneva
Conventions].
The Geneva Conventions of 1949 also
recognize
a role for
governments
which are not
parties
to the
conflict to serve as
Protecting
Powers,
but such a
status is
rarely,
if
ever, granted
in
practice.
See
Rosenblad
(1979, pp. 15-17);
Levie
(1986,
vol.
2,
pp. 577-605).
Article
90,
Additional Protocol I also
envisages
the
appointment
of an International Fact-
Finding
Commission
consisting
of 15
impartial per-
sons of
high
moral
standing,
but this
provision
has
not
yet
been used. See Rosenblad
(1979, p. 18).
2.
See,
e.g.,
Geneva
Conventions,
common Article 3.
3. Common Article 9 of the
First, Second,
and Third
Geneva
Conventions;
Fourth Geneva
Convention,
Article
10;
Geneva
Conventions, common Article
3;
International Committee of the Red Cross
(1983,
pp. 38-39);
Schindler
(1979).
4. See General
Assembly
res. 2675
(XXV),
25
GAOR,
Supp. (no. 28), p.
77; UN Doc.
A/8028
(1970);
United Nations
(1973, pp. 110-116).
5. The UN
Special Rapporteur
on the situation of
human
rights
in
Afghanistan
devoted
significant
attention to the armed conflict in that nation and the
applicable
humanitarian norms. UN Doc.
E/CN.4/
1985/21, pp. 28-32, 42-45,
47-48
(1985).
The UN
Special Rapporteur
on the situation of human
rights
in El Salvador identified the
applicable
interna-
tional humanitarian standards in common Article
3 and Additional Protocol
II,
but did not use these
standards in
assessing
the facts collected. UN Doc.
E/Cn.4/1985/18, pp.
37-45
(1985);
UN Doc.
A/39/
636, pp. 28-34 (1984).
In
contrast,
the UN
Special
Rapporteur
on the situation of human
rights
in
Guatemala not
only experienced difficulty
in estab-
lishing
relevant
facts,
but also failed to make use
of humanitarian law or
any
other
specific
human
rights provisions.
UN Doc.
E/CN.4/1985/19
(1985).
See
generally
written statement submitted
by
Human
Rights Advocates, 'Inc.,
a
nongo-
vernmental
organization
in consultative
status,
UN
Doc.
E/CN.4/1986/46 (1986).
6. See Case
Concerning Military
and
Paramilitary
Activities in and
against Nicaragua (Nicaragua
v.
United
States)
1986 International Court of
Justice,
pp. 14, 113-115, 129-130; reprinted
in International
Legal Materials, vol. 15, pp. 1023, 1073-74, 1081.
7. The Inter-American Commission on Human
Rights
generally
relies
upon
the
provisions
of the Ameri-
can Declaration on the
Rights
and Duties of Man
and the American Convention on Human
Rights
for its
operative
human
rights standards,
but the
Commission has found violations of common
Article 3 of the Geneva Conventions.
See,
e.g,
Inter-American Commission on Human
Rights,
Report
on the Situation of Human
Rights
in the
Republic
of
Guatemala,
OAS Doc.
OAE/Ser.L/
V/II.61,
Doc. 47 rev. 1,
pp.
69-70
(1983).
See also
Decision of the Inter-American Commission on
Human
Rights
on
Application
no. 9213
(Disabled
Peoples
International v. United
States);
OAS Doc.
OEA/Ser.L/V/II.67,
Doc. 6
(1986) (declaring
admissible a
complaint
on behalf of the 16
persons
who were killed and six who were
injured
when
military
aircraft of the United States
mistakenly
bombed the Richmond Hill Insane
Asylum
in Gren-
ada,
West
Indies).
8. See
generally
Ramcharan
(1983);
Wolf
(1984);
Gross
(1982).
9. See Weissbrodt
(1984, pp. 436-438);
Shestack
(1978).
10.
Amnesty
International 1986c.
11. General
Assembly
res.
217A,
UN Doc.
A/810, p.
71
(1948).
12. See note
1,
supra.
13. Protocol Additional to the Geneva Conventions of
12
August
1949
Relating
to the Protection of Vic-
tims of International Armed Conflicts
(Protocol I),
December
12, 1977, UN Doc.
A/32/144,
Annex I
reprinted
in International
Legal
Materials,
vol.
16,
p.
1391
(1977);
Protocol Additional to the Geneva
Conventions of 12
August
1949, and
Relating
to the
Protection of Victims of Non-International Armed
Conflicts
(Protocol II),
December
12, 1977,
UN
Doc.
A/32/144,
Annex
II
reprinted
in International
Legal
Materials,
vol.
16,
p.
1442
(1977).
14. Scholars have
begun
to comment on the con-
vergence
of humanitarian and human
rights
law.
See,
e.g., Calogeropoulos-Stratis (1980, pp.
21-
52);
Cassesse
(1979);
Dinstein
(1984); Draper
(1972);
Marks
(1982, pp. 193-194);
Meron
(1984a);
Meron
(1984b);
Paust & Blaustein
(1978, pp.
15-
18;
Robertson
(1984);
Schindler
(1982);
Sohn
(1982).
At the same time
many
scholars and
signifi-
cant actors in the field of human
rights
have
ignored
humanitarian law.
See,
e.g.,
Henkin
(1978);
Tuttle
(1978).
15. International Committee of the Red Cross
(1986),
as
updated
to 31 December 1986
by
the Interna-
tional Committee of the Red Cross.
16.
Amnesty
International
(1986e).
17. For
example,
common Article 3 of the Geneva
Conventions and Article 32 of the Fourth Geneva
Convention
explicitly
forbid
mutilation,
while the
international human
rights prohibition against
tor-
ture, cruel,
inhuman or
degrading punishment
is
just beginning
to be
interpreted
as
rejecting
muti-
lation. See UN Doc.
E/CN.4/1985/3, p.
95
(1986).
18. See Hartman
(1981). Although
war was the scen-
ario which
figured
most
prominently
in the minds of
the drafters of the
derogation clauses, derogations
have
mostly been invoked because of internal dis-
turbances. Id.
p.
13. The American Convention on
Human
Rights
is more
protective
of human
rights
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304 David Weissbrodt
than is the International Covenant on Civil and
Political
Rights during periods
of
public emergency.
Article 27 of the American Convention on Human
Rights
makes
nonderogable rights
to
juridical per-
sonality,
to
life,
to humane
treatment,
to national-
ity,
to a
name,
and to
participate
in
government;
rights
of the
family
and of the
child;
freedom of
conscience and
religion,
as well as freedom from
slavery
and ex
post facto
laws. In
addition,
the
American Convention
protects
the
right
to
judicial
guarantees
essential to the
protection
of these
rights,
from which a
government
cannot
derogate
during periods
of
war, public danger,
or other
emergency.
Common Article 3 of the Geneva Con-
ventions and Article 6 of Additional Protocol II
provide guarantees
for fair
procedure
in
periods
of
non-international armed conflict. See International
Commission of Jurists
(1983, pp. 426-429).
Article
75 of Additional Protocol I
provides
extensive
pro-
cedural
protections
of the accused
during periods
of international armed conflict.
19.
Amnesty
International
(1986a, pp. 34, 37).
20. Geneva
Conventions,
common Article
3;
Additional Protocol
I,
Article
1;
Additional Pro-
tocol
II,
Article
1; Bothe,
Partsch & Solf
(1982, pp.
627-628);
Cassese
(1981);
Pictet
(1952, pp. 49-50);
Veuthey (1983a); Veuthey (1983b).
21. International Covenant on Civil and Political
Rights,
Art.
2;
but see Commission on Human
Rights
res. 23
(XXXVI),
UN Doc.
E/CN.4/1408,
p.
184
(1980);
Commission on Human
Rights
res. 28
(XXXVII),
UN Doc.
E/CN.4/1475, p.
229
(1981);
Commission on Human
Rights
res.
1982/30,
UN
Doc.
E/CN.4/1982/30, p.
148
(1982).
22. International Alert
(1986, pp. 4-5).
23. Americas Watch
(1985b, pp. 11-34, 96-98).
24. The
report
notes that
Nicaragua
has
signed,
but not
ratified the Additional Protocol II. Americas Watch
also
expresses
doubt whether the conflict meets
the
high
threshold of
applicability
established
by
Additional Protocol II.
Nevertheless,
the
report
notes the
applicable
standards which
might
be
derived from Additional Protocol
II.
Id.
pp.
21-34.
25. Americas Watch
(1986a).
26. Id.
p.
57. This
paragraph
overstates the case in that
human
rights
law does contain
nonderogable rights
which
apply
even in
periods
of armed conflict.
See,
e.g.,
International Covenant on Civil and Political
Rights,
Article 4.
Although
the
paragraph
is correct
in
stating
that human
rights
law is directed
prin-
cipally
at
governments,
human
rights
law does con-
tain norms
applicable
to
"every
individual and
every
organ
of
society".
See,
e.g.,
Universal Declaration
of Human
Rights, preambular para. 8;
Interna-
tional Covenant on Civil and Political
Rights, pre-
ambular
para. 5;
Daes
(1983, p. 50).
The
paragraph
also overstates the
previous practice
of Americas
Watch in
using
humanitarian law. See Americas
Watch Committee & American Civil Liberties
Union
(1984); Americas Watch
(1984). Never-
theless, this 1986
pronouncement by Americac
Watch
represents
a considerable
development
in
the
thinking process
of that
organization concerning
the
application
of humanitarian law.
See, e.g.,
Americas Watch &
Lawyers
Committee for
International Human
Rights (1984, pp. 42-46);
Americas Watch Committee & American Civil Lib-
erties Union
(1983);
Americas Watch
(1985a, pp.
62-63);
Americas Watch
(1986b, pp. 28-29, 76)
(limited
use of humanitarian law for a few
issues).
See also Americas Watch
(1982, pp.
70-100,
89-
92) (stating
the facts without much
analysis
of
appli-
cable
legal
norms, except
a
chapter
on the con-
stitution
relying principally upon
the American
Convention on Human
Rights,
but with some con-
sideration of common Article
3).
27.
See,
e.g., Amnesty
International
(1984a, p. 45)
(citing
common Article
3); Amnesty
International
(1977, p. 26); Amnesty
International
(1978, pp.
15-16); Amnesty
International
(1986b, pp. 2, 18);
Amnesty
International
(1982); Amnesty
Interna-
tional USA
(1986, p. 10); Amnesty
International
(1985, p. 2).
28.
Amnesty
International
(1981, p. 17).
29. International Commission of Jurists
(1972, pp.
49-
64).
30. Fox
(1979).
See International Commission of Jurists
& Law in the Service of Man
(1988, p. 77) (brief
citation to the Fourth Geneva
Convention);
Israel
National Section of the International Commission
of Jurists
(1981, pp. 1-2, 71-72) (a
few more
citations to humanitarian law without
adequate
analysis).
A somewhat better
analysis
of these
ques-
tions
appear
in
Playfair (1986)
and
Amnesty
International
(1984b, pp. 5-8).
Cf. International
Commission of Jurists
(1961) (thorough
use of
humanitarian
law).
The International Commission
of Jurists also commented
thoughtfully
about the
application
of humanitarian law to the Biafran Con-
flict. International Commission of Jurists
(1969);
but cf. International Commission of Jurists
(1960)
(using only
the Universal Declaration of Human
Rights
and not
mentioning
the Fourth Geneva
Convention).
31. See International Committee of the Red
Cross,
The
Red Cross and Human
Rights (1983);
see also
Dominic6
(1982, pp.
427, 439-443); Forsythe
(1975);
Moreillon
(1973);
Pictet
(1956).
32. International Committee of the Red Cross
(1981).
33. These conditions include situations in which:
-
the violations are
major
and
repeated;
-
the
steps
taken
confidentially
have not suc-
ceeded in
putting
an end to the
violations;
-
such
publicity
is in the interest of the
persons
or
populations
affected or
threatened;
-
the ICRC
delegates
have witnessed the viol-
ations with their own
eyes,
or the existence and
extent of those breaches were established
by
reliable and verifiable sources. Id.
If the situation becomes
particularly grave,
the
ICRC
may very rarely
issue detailed
expressions
of
its concerns,
as
exemplified by
the ICRC's
public
statements on Iran and
Iraq
of May 1983 and Feb-
ruary
1984. The ICRC has
previously
issued such
public appeals
as to the
killings
in the
refugee camps
in Lebanon (18 September 1982)
and with
respect
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Humanitarian Law in Armed
Conflict
305
to the conflict which occurred in Southern Rhodesia
(1977, 1979).
The ICRC has also on a few occasions
in the context of civil wars called
upon
the
parties
to refrain from
attacking
civilian
populations,
for
example,
as to the conflicts in the
Congo (1964),
Nigeria (1967),
and Vietnam
(1967, 1968).
In addition the ICRC will
publish
a
report
on
any
prison
visit,
if a Government has
published
the
report
with distortions or
only
in
part.
Such
reports
were
published
with
respect
to visits to
prisons
in
Greece
(1968)
and Iran
(1977).
The ICRC would
not otherwise
publish
a
report
of a visit.
34. Such a full
comparison
between the ICRC and other
organizations is, unfortunately, beyond
the
scope
of the
present
article.
35.
Amnesty
International
(1980, p. 13).
36. Gasser
(1983).
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