Human rights and their protection can
be seen in The Universal Declaration of Human Rights adopted by the UN General
Assembly on 10 December 1948. Principles stated in the Declaration have
been preserved by the international community ever since and led to different
sorts of penalties against states that fail to protect or violate them.
Below are human rights provisions
which are most relevant in respect of protection of civilian population:
§ “the principle of human dignity,
§ the principle of non-discrimination,
§ the right to life, liberty and security of person,
§ the prohibition of slavery or servitude,
§ the prohibition of torture or cruel, inhuman or
degrading treatment or punishment”
From above, it is clear that human
rights law is somehow similar as the humanitarian law – protection of human
beings caught in the whirlwind of armed conflict. Although there are
similar, there are still some differences.
Human rights law provides a set of
rights to any human being, regardless of the situation. It applies to all,
regardless combatants or non-combatants which applies in all situation whether
in state of armed conflict or at peace.
From research that I have made, the
differences between humanitarian and human rights law rests in the approach
they adopt. Human rights law does not condition applicability of individual
rights it establishes by belonging to a particular group – obviously, with
exception of minority rights. Besides of this exception, the focus is
usually placed on the interests of individuals rather than any collective.
Contrast to the humanitarian law, which focuses on protection of
non-combatants as a group.
Protection of civilians in the armed
conflict builds upon the provisions of the Universal Declaration of Human Rights
(1948) and the authentication of its applicability in conditions of armed
conflict. The General Assembly resolution no. 2444 (XXIII) on Respect for
Human Rights in Armed Conflicts postulates that the “basic principle for the protection in armed conflict… are fundamental
human rights, as accepted in international law and laid down in international
instruments, which continue to apply fully in situations of armed conflict” (UN
1968). The same resolution evinces
that provision of international relief comply with principles of the Charter of
the United Nations and the Universal Declaration of Human Rights. But
still, the UN General Assembly resolutions in regards of protection of civilians
in armed conflicts chooses the humanitarian law perspective.
The truth is, the instruments of
humanitarian law and human rights law differ in their approach, applicability
and object of protection, but the only thing they share in common is their objective
which is assuring protection of human beings. Yet, resolutions of the UN
General Assembly are more incline in merging the two branches of law and
propose that humanitarian law presents a set of rules ensuring observation of
human rights by belligerents in the conditions of armed conflict.
Humanitarian law and human rights law
apply different rules to judge the use of force, based on divergent
assumptions. Under human rights law, force is only allowed to be used by state
agencies if there exists imminent danger of serious violence which cannot be
averted. Here, the intention is to protect the basic human right to life.
Articles 9 and 10 of the UN Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials claims that, international use of
firearms are only allowed in unavoidable circumstances in order to protect life
and be preceded by a clear with adequate time for the warned to respond.
Planning and exercise of an
operation with an obvious intention of killing a person is definitely not
allowed and state agents are restricted to practice procedures which circumvent
and deescalate potential violence. Human rights law focus more on interpreting
proportional use of force in regards of the minimum possible level of injury or
death. For easier understanding, humanitarian law regulates foreseeable use of
force in order to minimize civilian casualties, while human rights law peruses
every use of force by the state agencies resulting into loss of human life.
Cordula Droege, an ICRC legal specialist,
suggested that “it would be fairly
uncontroversial to assume that for the conduct of hostilities – that is, put
simply, battlefield situations – humanitarian law is generally the lex
specialis in relation to human rights law”, but, it is not that easy in cases
of non-international conflict and occupation. For example, cases such
as Guerrero v. Colombia (HRC 1992) or McCann and
others v. United Kingdom (ECtHR 1995) held that not only is the human
rights law applicable in these cases, it also requires the application of principle
of attempting to steer clear of violence if possible and if the use of force is
unavoidable, to observe the principle of proportionality.
These cases suggest that the courts
were applying full set of human rights and instruments of their protection to
persons, who were alleged terrorists and rule that the use of force was
undesirable, should other options be available. On the other hand, the
judgement of the ECtHR in case Ergi v.
Turkey (ECtHR 1998) was based on the application of humanitarian law rather
than human rights law – minimising of the loss of civilian life in the conduct
of hostilities against armed groups (in this case and operation against PKK
armed group) was to be the guiding principle under Protocol I and therefore,
limited and proportional civilian casualties resulting from the conduct of
hostilities were to be expected and permissible.
So, it would seem that the existing
jurisprudence establishes a distinction between two situations – the first,
where individual members of armed groups are killed in limited scope operation;
the second, where governmental armed forces are engaged in military operations
against an armed group. In the first case, human rights law prevails
as lex specialis, however, in the second case it is humanitarian
law that seems to inspire court rulings – at least implicitly, given the fact
that states typically do not acknowledge the internal conflict that would
substantiate the use of humanitarian law.
This fact in itself, would perhaps
not constitute a problem. Human rights law offers significantly more
comprehensive coverage to individuals against the use of force than the
humanitarian law – thus offering individuals high level of protection from
arbitrary use of force by state agencies in other than combat situations.
On the other hand, human rights courts seem to be willing to take into
regard humanitarian law if the case is clearly related to the conduct of larger
hostilities – thus allowing for high degree of protection of civilian
population, while acknowledging that certain civilian losses do occur in these
However, the problem remains in the
fact that if the state of non-international armed conflict is not acknowledged,
the rulings can only be governed by human rights law. And armed groups
are not considered to be a party to human rights treaties. Therefore,
only the state forces have obligations under its provisions, depriving
population under control of armed groups of any legal protection at all.
Perhaps a suggestion from Droege, that
human rights law should apply in situations where the state forces are in
effective control of a certain territory and humanitarian law in combat
situations, could be developed further and assign responsibility for
observation of human rights to armed groups in effective control of a given
territory. This solution would extend the same legal coverage to
civilians in the territory controlled by armed groups as to those in the
territory controlled by state agencies.
Yet, some practical difficulties
remain, of which two stand out particularly. First, armed groups are not
party to human rights treaties. However, they are not a party to
humanitarian law treaties either and their provisions do cover them.
Therefore, perhaps, this difficulty could be tackled on the basis of
customary law establishing the responsibility of even those groups that are not
a party to the treaties in question. The second difficulty is the
question of whether armed groups are indeed in effective control of territory
they dominate and are therefore able to take on a responsibility otherwise
assigned to a state.
It would seem that armed groups
at least in some cases do possess such a capacity. Moreover, the UN has
already acknowledged that individual members of armed groups can be held
responsible for breaching human rights, especially, if they constitute crimes
against humanity. So, it would seem that assigning responsibility for observing
human rights to armed groups in effective control of territory would offer
legal protection for civilians in situations of non-international armed
conflict unacknowledged by the given state.