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section heading icon     war, terrorism and genocide

This page highlights international human rights conventions regarding war, terrorism and genocide.

It covers -

section marker icon     introduction

Human rights do not cease to exist during war (whether between states or as a civil war), although often under particular threat at that time or simply ignored on the basis of military necessity. Practice and principle have proved controversial, both in relation to combatants and civilians. There is similar disagreement about the suspension, non-recognition or abridgement of rights in response to terrorism - whether under the auspices of states or other entities - outside periods in which a war is formally underway.

There is no single international agreement - or set of agreements - regarding the conduct of war (ie covering armed forces and civilians) and other conflicts. Not all states (and few paramilitary organisations) are formally committed to the major agreements and practice them in all instances.

Judges at the Nuremberg Trial in 1946 commented that

the law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists, and practised by military courts. This law is not static, but by continual application follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.

section marker icon     key statements and instruments

Successive conventions about the conduct of war since the 1850s (often agreed in meetings at Geneva and The Hague) have been supplemented by conventions regarding genocide.

They include -

Declaration Respecting Maritime Law (Certain Regulations for Sea Warfare), 1856

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
, 1864

Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Gram's Weight
, 1868

International Convention for Adapting to Maritime Warfare the Principles of The Geneva Convention of 1864, 1899

International Convention for the Pacific Settlement of International Disputes [Hague I], 1899

International Convention for the Amelioration of the Condition of the Wounded and the Sick in Armies in the Field [The Red Cross Convention], 1906

Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons [Hague XIV], 1907

International Convention Concerning the Law and Customs of War on Land [Hague IV], 1907

International Convention Relative to Certain Restrictions on the Exercise of the Right of Capture in Maritime War [Hague XI], 1907

International Convention Relative to the Conversion of Merchant-Ships into War-Ships [Hague VII], 1907

International Convention Relative to the Opening of Hostilities [Hague III], 1907

International Convention Respecting Bombardments by Naval Forces in Time of War [Hague IX], 1907

Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare [Gas Protocol], 1925

International Convention for the Amelioration of the Condition of the Wounded and the Sick in Armies in the Field, 1929

International Convention Relative to the Treatment of Prisoners of War, 1929

Convention on the Prevention and Punishment of the Crime of Genocide, 1948

Geneva Convention I: Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 1949

Geneva Convention II: Amelioration of the Condition of Wounded, Sick and Ship-Wrecked Members of Armed Forces at Sea, 1949

Geneva Convention III: Treatment of Prisoners of War, 1949

Geneva Convention IV: Protection of Civilian Persons in Times of War, 1949

Treaty on the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof, 1971

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972

UN Convention on Military or Any Other Hostile Use of Environmental Techniques, 1977

Geneva Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 1980

UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1987

International Convention for the Safeguarding of the Intangible Cultural Heritage, 2003

Terrorism agreements include -

Convention on Offences and certain other Acts Committed on board Aircraft (Tokyo), 1963

Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague), 1970

Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal), 1971

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (New York), 1973

European Convention on the Suppression of Terrorism (Strasbourg), 1977

Convention on the Physical Protection of Nuclear Materials (Vienna), 1980

Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971 (Montreal), 1988

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome), 1988

Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf (Rome), 1988

Convention on the Marking of Plastic Explosives for the Purpose of Detection (Montreal), 1991 [aka Marplex Convention]

Convention for the Suppression of Terrorist Bombings (New York), 1997

Convention for the Suppression of the Financing of terrorism (New York), 2000

Salient genocide agreements include -

Convention on the Prevention and Punishment of the Crime of Genocide, 1948

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 1968.

section marker icon     Geneva Conventions

The Geneva Conventions and supplementary protocols differentiate between combatants and civilians, who must be treated differently by warring states (combatants must therefore be clearly distinguishable from civilians). There is an expectation that combatants will wear uniforms and carry weapons openly during military operations and during preparation for them. Exceptions are made medical and religious personnel (considered non-combatants although they may wear uniforms and may carry small arms for self-defense if illegally attacked).

Mercenaries are excluded from protection, as are combatants who deliberately violate rules about maintaining a clear separation between combatant and noncombatant groups and thus endanger civilian populations.

The differentiation seeks to benefit civilians by making it easier to avoid targeting non-combatants, with combatants benefitting through immunity from prosecution for acts of war.

The key Geneva Conventions provide that prisoners of war -

  • must be treated humanely: must not be subject to torture or to medical or scientific experiments, must also be protected against violence, intimidation, insults and public curiosity/display.
  • when questioned - in the prisoner's native language - must only give their names, ranks, birth dates and serial numbers. Those who refuse to answer may not be threatened or mistreated.
  • must be immediately evacuated from a combat zone, must not be unnecessarily exposed to danger and must not be used as human shields.
    •must not be punished for acts committed during fighting unless the opposing side would have punished its own forces for those acts as well.

The fourth Geneva Convention (1949) and two Additional Protocols (1977) belatedly extended protection to civilians during wartime -

  • Civilians are not to be subject to attack. This includes direct attacks on civilians and indiscriminate attacks against areas in which civilians are present.
  • There is to be no destruction of property unless justified by military necessity.
  • Individuals or groups must not be deported, regardless of motive, and must not be used as hostages.
  • Civilians must not be subject to outrages upon personal dignity.
  • Civilians must not be tortured, raped or enslaved.
  • Civilians must not be subject to collective punishment and reprisals.
  • Civilians must not receive differential treatment based on race, religion, nationality, or political allegiance.
  • Warring parties must not use or develop biological or chemical weapons and must not allow children under 15 to participate in hostilities or to be recruited into the armed forces.

section marker icon     Australia

[under development

section marker icon     orientations

Anthony Aust's Handbook of International Law (Cambridge: Cambridge Uni Press 2005), Malcolm Shaw's lucid International Law (Cambridge: Cambridge Uni Press 1997), Geoffrey Best's Humanity in Warfare (New York: Columbia Uni Press 1980), Jean Pictet's Development & Principles of International Humanitarian Law (Dordrecht: Martinus Nijhoff 1985) and Theodor Meron's Human Rights in Internal Strife: Their International Protection (Cambridge: Grotius 1987), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge Uni Press 2003) edited by JL Holzgrefe & Robert Keohane offer a base for orientation; other introductions are highlighted in preceding pages of this profile.

Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford Uni Press 2003) by Nicholas Wheeler, The Purpose Of Intervention: Changing Beliefs About The Use Of Force (Ithaca: Cornell Uni Press 2004) by Martha Finnemore and Just War or Just Peace?: Humanitarian Intervention & International Law (Oxford: Oxford Uni Press 2003) by Simon Chesterman.

Among the large literature on ius cogens and expectations about behaviour during war (eg regarding spoliation) and peace see Yoram Dinstein's The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge Uni Press 2004), Helen Duffy's The War on Terror & the Framework of International Law (Cambridge: Cambridge Uni Press 2005), Peter Rowe's The Impact of Human Rights Law on Armed Forces (Cambridge: Cambridge Uni Press 2006), Human Rights in the 'War on Terror' (Cambridge: Cambridge Uni Press 2005) edited by Richard Wilson and Restraints On War (Oxford: Oxford Uni Press 1979) edited by Michael Howard.

section marker icon     war crimes and genocide

Among the literature on genocide as a practice and legal challenge see Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Oxford Uni Press 2001) by Stephen Ratner & Jason Abrams, Ben Kiernan's Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur (New Haven: Yale Uni Press 2007), William Schabas' Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge Uni Press 2000), Robert Cryer's Prosecuting International Crimes. Selectivity and the International Criminal Law Regime (Cambridge: Cambridge Uni Press 2005), David Fraser's Law After Auschwitz: Towards A Jurisprudence of the Holocaust (Durham: Carolina Academic Press 2005), Crimes of the Holocaust: The Law Confronts Hard Cases (Philadelphia: Uni of Pennsylvania Press 2005) by Stephan Landsman, Eric Weitz's less persuasive A Century of Genocide: Utopias of Race and Nation (Princeton: Princeton Uni Press 2003) and Edward Kissi's Revolution and Genocide in Ethiopia and Cambodia (Lanham: Lexington 2006).

Studies of war crimes tribunals include Mass Atrocity, Collective Memory and the Law (New Brunswick: Transaction 1997) by Mark Osiel, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton Uni Press 2000) by Gary Bass, The Wages of Guilt: Memories of War in Germany & Japan (New York: Meridian 1994) by Ian Buruma, Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide and the Trials of Slobodan Milosevic and Saddam Hussein (London: Peter Lang 2005) by Michael Kelly, The International Criminal Tribunal For The Former Yugoslavia: An Exercise in Law, Politics & Diplomacy (Oxford: Oxford Uni Press 2004) by Rachel Kerr, the The Memory of Justice: Making Law and History in the Trials of the Holocaust (New Haven: Yale Uni Press 2001) by Lawrence Douglas and International Prosecution of Human Rights Crimes (Berlin: Springer Verlag 2006) edited by Wolfgang Kaleck, Michael Ratner, Tobias Singelnstein & Peter Weiss.

Particular trials have garnered a large literature. For Germany see From Nuremberg to The Hague, Hannah Arendt's controversial Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Viking 1964), Dick de Mildt's In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany (The Hague: Martinus Nijhof 1996), Arieh Kochavi's Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (Chapel Hill: Uni of North Carolina Press 1998), Donald Bloxham's Genocide on Trial: War Crimes Trials & the Formation of Holocaust History and Memory (Oxford: Oxford Uni Press 2001), George Ginsbergs' Moscows Road to Nuremberg, (The Hague: Kluwer Law 1996), Telford Taylor's The Anatomy of the Nuremberg Trials: A Personal Memoir (New York: Knopf 1992) and Rebecca Wittmann's thoughtful Beyond Justice: The Auschwitz Trial (Cambridge: Harvard Uni Press 2005).

For contemporary horrors Sabrina Ramet's Thinking About Yugoslavia: Scholarly Debates about the Yugoslav Breakup and the Wars in Bosnia and Kosovo (Cambridge: Cambridge Uni Press 2005), Eric Stover's The Witnesses: War Crimes and the Promise of Justice in The Hague (Philadelphia: Uni of Pennsylvania Press 2005), My Neighbor, My Enemy: Justice and Aftermath in the Face of Mass Atrocity (Cambridge: Cambridge Uni Press 2004) edited by Stover & Harvey Weinstein are also of value.

For the ICC see William Schabas's An Introduction to the International Criminal Court (Cambridge: Cambridge Uni Press 2004) and The International Court (Plymouth: Ashgate 2004) edited by Olympia Bekou & Robert Cryer. They are complemented by Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy by Stephen Ratner & Jason Abrams (Oxford: Oxford University Press 1997) and From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge: Cambridge Uni Press 2003) edited by Philippe Sands. Howard Meyer's The World Court in Action: Judging among the Nations (Lanham: Rowman & Littlefield 2002) offers an introduction to the court.

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version of October 2007
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