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war, terrorism and genocide
This
page highlights international human rights conventions regarding
war, terrorism and genocide.
It covers -
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.
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.
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.
Australia
[under development
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.
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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