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CRISIS RESPONSE PROGRAM
The Handbook on Human Rights in Situations of Conflict
Executive Summary
1. Purpose and Uses
This Handbook focuses on human rights in situations of escalating conflict. It is intended for use in monitoring, reporting, advocating, and acting on human rights situations before, during, or after armed conflict. Human Rights are as multi-dimensional as sources of conflict; both encompass political, legal, economic, social and cultural spheres of life. In many cases, violations of human rights signal the existence or escalation of conflict which, if left unaddressed, will result in systematic violence. Conversely, action that enables respect for human rights often has the effect of establishing sustainable means to address sources of existing conflict and prevent new conflicts.
The methodology in this book promotes communication and collaboration among human rights advocates and key players seeking to prevent or manage conflicts. It is intended for use by public and private actors interested in human rights and active in situations of escalating conflict. Those that work to prevent and manage conflicts may benefit from the book as well. The Handbooks ultimate beneficiaries are those individuals, groups, and communities at risk of human rights violations and violent conflicts.
2. Format
This chapter explains the legal framework and key terminology of the Handbook. Chapter II contains observations on systems to prevent and manage conflict from a human rights perspective, and proposes recommendations for progress. Chapter III sets out a step-by-step methodology to (1) monitor and report human rights situations that warn of escalating conflict and help inform an understanding of the sources of conflict and needs of the parties; (2) advocates incorporation of human rights into decision making on preventive action; and (3) implement human rights aspects of preventive action.
Annexes A and B summarize activities of international and regional organizations to prevent and manage conflicts. The review includes diplomatic initiatives, security measures, humanitarian and development aid, trade, and other economic arrangements. The Annexes are intended to help build operational partnerships among non-governmental organizations (NGOs), inter-governmental organizations (IGOs), state actors, and the private sector. "Practical Notes" in the Annexes suggest ways to set goals, strategies, and action plans to prevent human rights violations and promote respect for human rights in cooperation with specific organizations.
Annex C offers a suggested matrix to use in monitoring human rights in situations of conflict. Annex D is a Directory that provides contact information for (1) international and regional systems discussed in Annexes A and B (schematically presented in Table IV found in chapter III, p. 30); (2) NGOs and other private organizations that work to prevent and manage conflicts at the international and/or regional level (categorized in Table VI found in Chapter IV, p. 39); (3) hard-copy and electronic directories of NGOs and other private organizations doing work in conflict prevention or management at the national or local level; (4) academic and other databases that analyze violent or potentially violent situations.
3. Scope and Legal Framework
The handbook applies to efforts to prevent escalation of conflict within the borders of one state before, during or after armed conflict. It also addresses attempts to anticipate and prevent the eruption of a new violent conflict after settlement of an existing one. Conflict may escalate in vertical or horizontal directions, that is, between authorities and a targeted group(s), one group and another or as general anarchy in which few coherent group exist.
International law, as a multilateral system of binding principles and commitments, provides the framework for the Handbooks methodology. The Handbook draws primarily on international human rights law and, where relevant, humanitarian law standards. International human rights law holds governments responsible for the acts of state organs, officials and, under certain circumstances, private actors. Under limited situations, international human rights law imposes direct responsibility on individuals. For example, certain internationally recognized crimes, including inter alia genocide, slave-trade, or torture, are co-extensive with proscriptions under human rights or humanitarian treaties or fall under the jurisdiction of international tribunals.[1] In contrast to the emphasis on state responsibility found in human rights law, international humanitarian law, applicable in situations of armed conflict, binds all parties to the conflict.
The sources of international law used in this Handbook include customary[2] and treaty law. The differing sources determine which states have agreed to be bound by which norms and how. Customary law norms are deemed to be binding on all states; indeed, some customary norms are further deemed to be jus cogens, that is not subject to agreement or objection to the contrary.[3] Treaty-based law encompasses treaties that are open for ratification by all states and treaties that constitute multilateral agreements among states in certain regions only. As a matter of international law, states parties to treaties are bound to observe the rights guaranteed in the treaty provisions, and to ensure that those rights are guaranteed under domestic law.
The sources of international human rights law include customary law and treaties of universal and regional character. A list of the primary human rights instruments relevant to the Handbook is hound at Table I (p. 4). The sources of international humanitarian law also include customary and treaty law. Relevant provisions governing non-international armed conflict are found in Article 3 common to the four Geneva Conventions of 1949 (Common Article 3) and Additional Protocol II.[4] A list of selected instruments and resource books on humanitarian law are found in Table I (p. 4).
Note: Table I on page p. 4 is not available on this web site.
International law recognizes tow categories of situations relevant to this Handbook, each of which is governed by a different set of norms. In pre- and post-conflict situations, human rights law applies even when tensions, disturbances or disasters may contribute to an escalation of conflict short of a systematic and sustained use of armed force. In some situations of non-international armed conflict, certain principles of humanitarian law apply along with many human rights guarantees. As conflict escalates and finally erupts into the use of armed force, human rights law is increasingly subject to restrictions and, in extreme cases, even derogation (suspension), except for a core of defined non-derogable rights. In contrast, the provisions of humanitarian law that apply to non-international armed conflict bind every party to the conflict absolutely-- without restriction or derogation.[5] Those provisions impose, inter alia, legal obligations for the protection of persons who do not, or who no longer, take an active part in the armed hostilities. The application of such protections under international humanitarian law helps prevent further violence in situations of armed conflict.[6]
Endnotes
1 A modern and still-debated development in the analysis of international human rights norms infers a binding effect on individuals even when the norms are addressing states. This third party or drittwirkung effect is said to impose individual duties to refrain from such conduct as prohibited discrimination or domestic violence. For a discussion of the issue see ANDREW CLAPHAM, Human Rights in the Private Sphere 89-149 (1993).
2 Customary international law results primarily from a general and consistent practice of states followed from a sense of legal obligation. A rarely-invoked exception exempts sates from a particular obligation if the state openly and persistently objects to the practice prior to formation of the norm. Regional customary law may establish more stringent standards than universal custom.
3 For customary norms that are not jus cogens, states may invoke the rarely-used customary law doctrines of necessity and force majeure in every exceptional cases to justify temporary suspension of human rights norms that are not jus cogens. "Necessity" refers to a duress of circumstances that allows for no other acceptable choice. "Force majeure" refers to an eternal act beyond ones control that thwarts compliance and cannot be avoided with due care.
4 Common Article 3 is widely considered to have acquired the status of customary international law binding on all states. Some provisions of Protocol II, which elaborates on and authoritatively interprets Common Article 3, have been suggested to constitute customary international law binding on all parties to all internal armed conflicts.
5 The international Tribunal for the Former Yugoslavia recently applied certain humanitarian law provisions in situations that arguably fell short of the threshold of armed conflict required by the treaties. Dusko Tadic a/k/a "Dule" v. The Prosecutor, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72 (2 Oct. 1995), paras. 66-70. The decision may be viewed as an effort to extend the protection of humanitarian law to supplement human rights law provisions which traditionally govern those situations.
6 For a description of the International Committee of the Red Cross, which addresses escalating conflict and offers humanitarian services to parties to an armed conflict, see Annex D, Directory, Part II.