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Monday, June 3, 2019

Human rights in Africa

From Wikipedia, the free encyclopedia

In Africa, the idea of human rights is a comparatively recent phenomenon. Contributing to the establishment of human rights system in Africa are the United Nations, international law and the African Union which have positively influenced the betterment of the human rights situation in the continent. However, extensive human rights abuses still occur in many sections of the continent. Most of the violations can be attributed to political instability (as a consequence of civil war), racial discrimination, corruption, post-colonialism, economic scarcity, ignorance, illness, religious bigotry, debt and bad financial management,  monopoly of power, lack/absence of judicial and press autonomy, and border conflicts. Many of the provisions contained in regional, national, continental, and global agreements remained unaccomplished.

African human rights system

The African Charter is a human rights document made up of 68 articles carved up into four sections -- Human and Peoples’ Rights; Duties; Procedure of the Commission; and Applicable Principles. It merges the three clusters of rights, namely, civil and political rights, economic, social, and cultural rights, and group and peoples’ rights. It enforces obligations on individual members of each African society and connects the ideas of human rights, peoples’ rights, and duties on people.

The organ commissioned to interpret the Charter, as well as investigate individual complaints is the African Commission on Human and People's Rights (ACHPR). The ACHPR was established based on Art. 30 of the Charter and was inaugurated in November 1987. The ACHPR meets two times a year and its secretariat is headquartered in Banjul (Gambia).

Promotion of human rights and its protection

Human rights education

Human rights are “rights one has simply because one is a human being.” These privileges and civil liberties are innate in every person without prejudice and where ethnicity, place of abode, gender, cultural origin, skin color, religious affiliation, or language, do not matter. The right to learn and to be knowledgeable about human rights is known as human rights education. It basically refers to “all learning that develops the knowledge, skills, and values of human rights.”

Human rights education covers an extensive array of ideals and standards that include peace, justice and tolerance, egalitarianism, diplomacy, and value for human dignity. By upholding recognition of and advancing respect for human rights in all civilizations, it allows learners to dynamically contribute in putting together a sustainable and a non-violent future.

According to Amnesty International, human rights education is a purposeful, participatory practice intended to empower people and communities by nurturing the love for knowledge, encourage the acquisition of skills, and development of attitudes and mindset aligned with globally accepted standards. It aspires to put together a culture of respect for prompt action in the protection and encouragement of human rights for all citizens.

In law enforcement, human rights education aims to elevate learners’ consciousness  and understanding of rights agreements in order to guarantee the safeguarding of people's rights in a community, transparency in government dealings and activities, liability/responsibility in civic transactions, and the balanced and impartial employment of force.

In most cases, human rights education manifests through popular education or community education with the purpose of organizing people and activating constituencies in the expansion and intensification of social movements.These community-based models have been created and established in rustic areas of Latin America, Asia, and Africa.

Such human rights education efforts are seen as both a political and an academic approach to assist democratic processes and achieve dynamic citizenship. Given focus in these education efforts are civil, political, social, economic, and cultural rights and a combination of equality rights for certain type of groups. As a result, human rights education differs in substance, method and strategy, extent, concentration, profundity, and accessibility.

African women's rights

Significant improvements have been made toward the development of African women’s rights and female political involvement at both the national and local levels. The continent has espoused a number of lawful mechanisms, like the Maputo Protocol, declarations, such as the African Union Solemn Declaration on Gender Equality in Africa, and resolutions aimed to guarantee women’s rights. These instruments likewise created numerous monitoring entities to ensure the fulfillment of African women’s ideals. However, African women have continuously been confronted with absurd challenges in the sphere of economics, in their social lives, and in their positions within the community, specifically when it comes to healthcare and education. Sufficient healthcare, contraception awareness, and understanding of safe abortion is deficient because of the continent’s derisory health infrastructure, making it tough for women to have satisfactory access to health clinics.  Moreover, African women incessantly tail behind African men in their facility to have access, use, and control of land and other resources, which make them defenseless in states of conflict and unprotected in times of calamities.

The Maputo Protocol fixes the values for women’s human rights in Africa. In this treaty, the description of violence against women distinguishes both physical and emotional aggression as well as threats of cruelty and sadism. It identifies the role of women in political and public life while persuading state parties to allocate more in time and money for legislation and other procedures that could secure equal representation of women and men in decision-making.

The protocol provides for the legal ban on female genital mutilation as well as the consent to abortion in cases of rape, incest, sexual mauling, and the continued pregnancy that threatens the mental and physical health/life of the mother or the fetus. It is also the first international human rights agreement to unequivocally talks about HIV/AIDS. Other provisions  contained in the protocol address established but destructive practices, child marriage, polygamy, inheritance, economic empowerment, women’s political participation, education, and women in armed conflict.

African children's rights

Different types of violence and maltreatment wreak havoc on the lives of numerous children in Africa. These include economic and sexual abuse, gender bias in education, and being caught in the crossfire during armed conflicts. According to UNICEF, there are approximately 150 million children in the 5-14 age range who are engaged in hard labor and adult work.

Created to defend children and safeguard their innate rights, the African Charter on the Rights and Welfare of the Child (ACRWC) was created. It also serves as the major legal instrument within the African human rights system that clarifies the rights and privileges that African nations must guarantee to their children. Other concerns that African states want the charter to address include issues confronting children living under apartheid, child marriage, female genital mutilation (FGM), internal conflicts and displacement, rights of children whose mothers have been incarcerated, unsanitary living conditions, and the role of the family in adoption and fostering.

Child soldiers

Definition

According to the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, a child soldier is a “any person below 18 years of age who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys, and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes." Child soldiers are often compulsorily drafted by use of force, by kidnapping them or by issuing grave threats to them. Others willingly sign up to avoid extreme hardships and poverty.

One of the biggest reasons for employing child soldiers is that they are viewed as dispensable, or “throwaways” and maintaining them does not cost much. They are also seen as more susceptible compared to adults, who already have more defined personalities. Since children lack a sense of apprehension, they accept more hazardous errands without analyzing what they are getting into.

Organizations safeguarding African human rights

There are nine international organizations working for the protection of African human rights, namely, Human Rights Watch, International Committee of the Red Cross, Global Rights, Amnesty International, International Federation for Human Rights, Refugees International, UN Watch, Human Rights Foundation, and Protection International

Human rights situation by country

North Africa

Mauritanian blogger Mohamed Mkhaïtir was sentenced to death after he wrote an article critical of religion and the caste system in Mauritania.
 
In Algeria, major human rights issues include unauthorized intrusion of privacy, establishment of laws barring specific of free expression, criminal defamation laws that are usually indistinct, restrictions on freedom of the press, freedom of assembly and association, corruption of government officials, lack or absence of independence and neutrality in the judiciary, gross domestic violence against women, prohibition of same sex activities, sexual abuse on LGBTI persons, and human trafficking. While the government took efforts in examining, taking legal action, and punishing public officials who commit violations, impunity for police and security officials still exists and remains a problem in this country.

By 2016 in Egypt, public criticism of the government was declared banned. People get arrested when they have been suspected or proven to be involved in protests or attended protest rallies. Travel bans were ordered and assets of known human rights organizations were seized or frozen. Criminal charges were directed at NGO directors and the head of the Press Syndicate and against Egypt's leading anti-corruption personality. Members of the security forces continue to persecute and torment detainees and hundreds of people have mysteriously disappeared with little or no accountability in the part of government officials for infringement of the law.

As of April 2018, a UN document reported that thousands of horrible human rights violations have been performed by state-affiliated militias in Libya. Based on Amnesty International reports, forces allied to existing competing governments -- in addition to the armed groups and private armies – continuously commit with grave callousness the desecration of global decrees and aggression towards human rights. These groups carry out random attacks in densely populated areas leading to thousands of civilian deaths. They persistently abduct, capriciously arrest and detain thousands of people for an indefinite period. Ruthless persecution and employment of other cruel methods were conducted inside prison cells. Women are confronted with abject discrimination, including illogical limitations on their right to travel. The death penalty continues to be in force.

Sub-Saharan Africa


International human rights law

From Wikipedia, the free encyclopedia

International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.
 
The relationship between international human rights law and international humanitarian law is disputed among international law scholars. This discussion forms part of a larger discussion on fragmentation of international law. While pluralist scholars conceive international human rights law as being distinct from international humanitarian law, proponents of the constitutionalist approach regard the latter as a subset of the former. In a nutshell, those who favors separate, self-contained regimes emphasize the differences in applicability; international humanitarian law applies only during armed conflict.

A more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict between both state and military occupation (i.e. IHL) or to certain groups of people including refugees (e.g. the 1951 Refugee Convention), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).

United Nations system


In 2006, the United Nations Commission on Human Rights was replaced with the United Nations Human Rights Council for the enforcement of international human rights law.

International Bill of Human Rights

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is a UN General Assembly declaration that does not in form create binding international human rights law. Many legal scholars cite the UDHR as evidence of customary international law. 

More broadly, the UDHR has become an authoritative human rights reference. It has provided the basis for subsequent international human rights instruments that form non-binding, but ultimately authoritative international human rights law.

International human rights treaties

Besides the adoption in 1966 of the two wide-ranging Covenants that form part of the International Bill of Human Rights (namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), other treaties have been adopted at the international level. These are generally known as human rights instruments. Some of the most significant include the following:

Regional protection and institutions

Regional systems of international human rights law supplement and complement national and international human rights law by protecting and promoting human rights in specific areas of the world. There are three key regional human rights instruments which have established human rights law on a regional basis:

Americas and Europe

The Organisation of American States and the Council of Europe, like the UN, have adopted treaties (albeit with weaker implementation mechanisms) containing catalogues of economic, social and cultural rights, in addition to the aforementioned conventions dealing mostly with civil and political rights:
  • the European Social Charter for Europe of 1961, in force since 1965 (whose complaints mechanism, created in 1995 under an Additional Protocol, has been in force since 1998); and
  • the Protocol of San Salvador to the ACHR for the Americas of 1988, in force since 1999.

Africa

The African Union (AU) is a supranational union consisting of 53 African countries. Established in 2001, the AU's purpose is to help secure Africa's democracy, human rights, and a sustainable economy, in particular by bringing an end to intra-African conflict and creating an effective common market.

The African Charter on Human and Peoples' Rights is the region's principal human rights instrument, which emerged under the aegis of the Organisation of African Unity (OAU) (since replaced by the African Union). The intention to draw up the African Charter on Human and Peoples' Rights was announced in 1979. The Charter was unanimously approved at the OAU's 1981 Assembly. 

Pursuant to Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986, in honour of which 21 October was declared African Human Rights Day.

The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union, tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent, as well as with interpreting the African Charter on Human and Peoples' Rights, and considering individual complaints of violations of the Charter. The Commission has three broad areas of responsibility:
  1. promoting human and peoples' rights;
  2. protecting human and peoples' rights; and
  3. interpreting the African Charter on Human and Peoples' Rights.
In pursuit of these goals, the Commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments."

With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the Commission will have the additional task of preparing cases for submission to the Court's jurisdiction. In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice.

The Court of Justice of the African Union is intended to be the "principal judicial organ of the Union." Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples' Rights, as well as to act as the supreme court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples' Rights entered into force in January 2004, but its merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by fifteen countries.

There are many countries in Africa accused of human rights violations by the international community and NGOs.

Inter-American system

The Organization of American States (OAS) is an international organization headquartered in Washington, DC. Its members are the thirty-five independent nation-states of the Americas. 

Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalisation, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:
  • strengthening democracy;
  • working for peace;
  • protecting human rights;
  • combating corruption;
  • the rights of indigenous peoples; and
  • promoting sustainable development.
The Inter-American Commission on Human Rights (IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights. The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:
  1. the OAS Charter;
  2. the American Declaration of the Rights and Duties of Man; and
  3. the American Convention on Human Rights.
The Inter-American Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are therefore adjudicatory and advisory:
  • Under the former, it hears and rules on the specific cases of human rights violations referred to it.
  • Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.
Many countries in the Americas, including Colombia, Cuba, Mexico and Venezuela,[citation needed] have been accused of human rights violations.

European system

The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law, and has observer status at the United Nations. The seat of the Council is in Strasbourg in France.

The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights. These institutions bind the Council's members to a code of human rights which, although strict, is more lenient than that of the UN Charter on human rights.

The Council also promotes the European Charter for Regional or Minority Languages and the European Social Charter. Membership is open to all European states which seek European integration, accept the principle of the rule of law, and are able and willing to guarantee democracy, fundamental human rights and freedoms.

The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention on Human Rights. The Council includes all the member states of European Union. The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.

The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe. All 47 member states of the Council of Europe have signed this Convention, and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg. In order to prevent torture and inhuman or degrading treatment, the Committee for the Prevention of Torture was established.


The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals rather than states. In early 2010, the court had a backlog of over 120,000 cases and a multi-year waiting list. About one out of every twenty cases submitted to the court is considered admissible. In 2007, the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.

Monitoring, implementation and enforcement

There is currently no international court to administer international human rights law, but quasi-judicial bodies exist under some UN treaties (like the Human Rights Committee under the ICCPR). The International Criminal Court (ICC) has jurisdiction over the crime of genocide, war crimes and crimes against humanity. The European Court of Human Rights and the Inter-American Court of Human Rights enforce regional human rights law. 

Although these same international bodies also hold jurisdiction over cases regarding international humanitarian law, it is crucial to recognise, as discussed above, that the two frameworks constitute different legal regimes.

The United Nations human rights bodies do have some quasi-legal enforcement mechanisms. These include the treaty bodies attached to the seven currently active treaties, and the United Nations Human Rights Council complaints procedures, with Universal Periodic Review and United Nations Special Rapporteur (known as the 1235 and 1503 mechanisms respectively).

The enforcement of international human rights law is the responsibility of the nation state; it is the primary responsibility of the State to make the human rights of its citizens a reality.

In practice, many human rights are difficult to enforce legally, due to the absence of consensus on the application of certain rights, the lack of relevant national legislation or of bodies empowered to take legal action to enforce them.

In over 110 countries, national human rights institutions (NHRIs) have been set up to protect, promote or monitor human rights with jurisdiction in a given country. Although not all NHRIs are compliant with the Paris Principles, the number and effect of these institutions is increasing.

The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris from 7 to 9 October 1991, and adopted by UN Human Rights Commission Resolution 1992/54 of 1992 and General Assembly Resolution 48/134 of 1993. The Paris Principles list a number of responsibilities for national human rights institutions.

Universal jurisdiction

Universal jurisdiction is a controversial principle in international law, whereby states claim criminal jurisdiction over people whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence or any other relationship to the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorised to punish. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens

In 1993, Belgium passed a "law of universal jurisdiction" to give its courts jurisdiction over crimes against humanity in other countries. In 1998, Augusto Pinochet was arrested in London following an indictment by Spanish judge Baltasar Garzón under the universal-jurisdiction principle.

The principle is supported by Amnesty International and other human rights organisations, which believe that certain crimes pose a threat to the international community as a whole, and that the community has a moral duty to act. 

Others, like Henry Kissinger, argue that "widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny—that of judges".

International humanitarian law

From Wikipedia, the free encyclopedia

International humanitarian law (IHL) is the law that regulates the conduct of war (jus in bello). It is that branch of international law which seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities, and by restricting and regulating the means and methods of warfare available to combatants
 
IHL is inspired by considerations of humanity and the mitigation of human suffering. "It comprises a set of rules, established by treaty or custom, that seeks to protect persons and property/objects that are (or may be) affected by armed conflict and limits the rights of parties to a conflict to use methods and means of warfare of their choice". It includes "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law". It defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning non-combatants. It is designed to balance humanitarian concerns and military necessity, and subjects warfare to the rule of law by limiting its destructive effect and mitigating human suffering.

Serious violations of international humanitarian law are called war crimes. International humanitarian law, jus in bello, regulates the conduct of forces when engaged in war or armed conflict. It is distinct from jus ad bellum which regulates the conduct of engaging in war or armed conflict and includes crimes against peace and of war of aggression. Together the jus in bello and jus ad bellum comprise the two strands of the laws of war governing all aspects of international armed conflicts.

The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.

International humanitarian law operates on a strict division between rules applicable in international armed conflict and internal armed conflict. This dichotomy is widely criticized.

The relationship between international human rights law and international humanitarian law is disputed among international law scholars. This discussion forms part of a larger discussion on fragmentation of international law. While pluralist scholars conceive international human rights law as being distinct from international humanitarian law, proponents of the constitutionalist approach regard the latter as a subset of the former. In a nutshell, those who favor separate, self-contained regimes emphasize the differences in applicability; international humanitarian law applies only during armed conflict. On the other hand, a more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict and military occupation (i.e., IHL) or to certain groups of people including refugees (e.g., the 1951 Refugee Convention), children (the 1989 Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).

Democracies are likely to protect the rights of all individuals within their territorial jurisdiction.

Two historical streams: The Law of Geneva and The Law of The Hague

Modern international humanitarian law is made up of two historical streams:
  1. The law of The Hague, referred to in the past as the law of war proper; and
  2. The law of Geneva, or humanitarian law.
The two streams take their names from a number of international conferences which drew up treaties relating to war and conflict, in particular the Hague Conventions of 1899 and 1907, and the Geneva Conventions, the first which was drawn up in 1863. Both deal with jus in bello, which deals with the question of whether certain practices are acceptable during armed conflict.

The Law of The Hague, or the laws of war proper, "determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm". In particular, it concerns itself with
  • the definition of combatants;
  • establishes rules relating to the means and methods of warfare;
  • and examines the issue of military objectives.
Systematic attempts to limit the savagery of warfare only began to develop in the 19th century. Such concerns were able to build on the changing view of warfare by states influenced by the Age of Enlightenment. The purpose of warfare was to overcome the enemy state, which could be done by disabling the enemy combatants. Thus, "the distinction between combatants and civilians, the requirement that wounded and captured enemy combatants must be treated humanely, and that quarter must be given, some of the pillars of modern humanitarian law, all follow from this principle".

The Law of Geneva

The massacre of civilians in the midst of armed conflict has a long and dark history. Selected examples include
to name only a few examples drawn from a long list in history. Fritz Munch sums up historical military practice before 1800: "The essential points seem to be these: In battle and in towns taken by force, combatants and non-combatants were killed and property was destroyed or looted." In the 17th century, the Dutch jurist Hugo Grotius, widely regarded as the founder or father of public international law, wrote that "wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents".

Humanitarian norms in history

Even in the midst of the carnage of history, however, there have been frequent expressions and invocation of humanitarian norms for the protection of the victims of armed conflicts: the wounded, the sick and the shipwrecked. These date back to ancient times.

In the Old Testament, the King of Israel prevents the slaying of the captured, following the prophet Elisha's admonition to spare enemy prisoners. In answer to a question from the King, Elisha said, "You shall not slay them. Would you slay those whom you have taken captive with your sword and with your bow? Set bread and water before them, that they may eat and drink and go to their master."

In ancient India there are records (the Laws of Manu, for example) describing the types of weapons that should not be used: "When he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire." There is also the command not to strike a eunuch nor the enemy "who folds his hands in supplication ... Nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight."

Islamic law states that "non-combatants who did not take part in fighting such as women, children, monks and hermits, the aged, blind, and insane" were not to be molested. The first Caliph, Abu Bakr, proclaimed, "Do not mutilate. Do not kill little children or old men or women. Do not cut off the heads of palm trees or burn them. Do not cut down fruit trees. Do not slaughter livestock except for food." Islamic jurists have held that a prisoner should not be killed, as he "cannot be held responsible for mere acts of belligerency".

Islamic law did not spare all non-combatants, however. In the case of those who refused to convert to Islam, or to pay an alternative tax, Muslims "were allowed in principle to kill any one of them, combatants or noncombatants, provided they were not killed treacherously and with mutilation".

Codification of humanitarian norms

The most important antecedent of IHL is the current Armistice Agreement and Regularization of War, signed and ratified in 1820 between the authorities of the then Government of Great Colombia and the Chief of the Expeditionary Forces of the Spanish Crown, in the Venezuelan city of santa Ana de Trujillo. This treaty was signed under the conflict of Independence, being the first of its kind in the West. 

It was not until the second half of the 19th century, however, that a more systematic approach was initiated. In the United States, a German immigrant, Francis Lieber, drew up a code of conduct in 1863, which came to be known as the Lieber Code, for the Union Army during the American Civil War. The Lieber Code included the humane treatment of civilian populations in the areas of conflict, and also forbade the execution of POWs

At the same time, the involvement during the Crimean War of a number of such individuals as Florence Nightingale and Henry Dunant, a Genevese businessman who had worked with wounded soldiers at the Battle of Solferino, led to more systematic efforts to prevent the suffering of war victims. Dunant wrote a book, which he titled A Memory of Solferino, in which he described the horrors he had witnessed. His reports were so shocking that they led to the founding of the International Committee of the Red Cross (ICRC) in 1863, and the convening of a conference in Geneva in 1864, which drew up the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.

The Law of Geneva is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict, as well as to military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the ICRC.[24] This focus can be found in the Geneva Conventions.

Geneva Conventions

 
Progression of Geneva Conventions from 1864 to 1949.

The Geneva Conventions are the result of a process that developed in a number of stages between 1864 and 1949. It focused on the protection of civilians and those who can no longer fight in an armed conflict. As a result of World War II, all four conventions were revised, based on previous revisions and on some of the 1907 Hague Conventions, and readopted by the international community in 1949. Later conferences have added provisions prohibiting certain methods of warfare and addressing issues of civil wars. 

The first three Geneva Conventions were revised, expanded, and replaced, and the fourth one was added, in 1949.
There are three additional amendment protocols to the Geneva Convention:
  1. Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries.
  2. Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries.
  3. Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by seventeen countries and signed but not yet ratified by an additional 68.
The Geneva Conventions of 1949 may be seen, therefore, as the result of a process which began in 1864. Today they have "achieved universal participation with 194 parties". This means that they apply to almost any international armed conflict. The Additional Protocols, however, have yet to achieve near-universal acceptance, since the United States and several other significant military powers (like Iran, Israel, India and Pakistan) are currently not parties to them.

Historical convergence between IHL and the laws of war

With the adoption of the 1977 Additional Protocols to the Geneva Conventions, the two strains of law began to converge, although provisions focusing on humanity could already be found in the Hague law (i.e. the protection of certain prisoners of war and civilians in occupied territories). The 1977 Additional Protocols, relating to the protection of victims in both international and internal conflict, not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights provisions.

Basic rules of IHL

  1. Persons who are hors de combat (outside of combat), and those who are not taking part in hostilities in situation of armed conflict (e.g., neutral nationals), shall be protected in all circumstances.
  2. The wounded and the sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the "Red Cross", or of the "Red Crescent," shall be required to be respected as the sign of protection.
  3. Captured persons must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
  4. No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
  5. Parties to a conflict do not have an unlimited choice of methods and means of warfare.
  6. Parties to a conflict shall at all times distinguish between combatants and non-combatants. Attacks shall be directed solely against legitimate military targets.

Examples

Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a red cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that, being considered the flag of truce, indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or the white flag are expected to maintain neutrality, and may not engage in warlike acts themselves; engaging in war activities under a white flag or a red cross is itself a violation of the laws of war. 

These examples of the laws of war address
  • declarations of war;
  • acceptance of surrender;
  • the treatment of prisoners of war;
  • the avoidance of atrocities;
  • the prohibition on deliberately attacking non-combatants; and
  • the prohibition of certain inhumane weapons.
It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge, and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages.

Later additions

International humanitarian law now includes several treaties that outlaw specific weapons. These conventions were created largely because these weapons cause deaths and injuries long after conflicts have ended. Unexploded land mines have caused up to 7,000 deaths a year; unexploded bombs, particularly from cluster bombs that scatter many small "bomblets", have also killed many. An estimated 98% of the victims are civilian; farmers tilling their fields and children who find these explosives have been common victims. For these reasons, the following conventions have been adopted:

International Committee of the Red Cross

Emblem of the ICRC
 
The ICRC is the only institution explicitly named under international humanitarian law as a controlling authority. The legal mandate of the ICRC stems from the four Geneva Conventions of 1949, as well as from its own Statutes. 

Violations and punishment

During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal

Combatants who break specific provisions of the laws of war lose the protections and status afforded to them as prisoners of war, but only after facing a "competent tribunal". At that point, they become unlawful combatants, but must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV, Article 5.

Spies and terrorists are only protected by the laws of war if the "power" which holds them is in a state of armed conflict or war, and until they are found to be an "unlawful combatant". Depending on the circumstances, they may be subject to civilian law or a military tribunal for their acts. In practice, they have often have been subjected to torture and execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. Spies may only be punished following a trial; if captured after rejoining their own army, they must be treated as prisoners of war. Suspected terrorists who are captured during an armed conflict, without having participated in the hostilities, may be detained only in accordance with the GC IV, and are entitled to a regular trial. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason. 

After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.

Key provisions and principles applicable to civilians

The Fourth Geneva Convention focuses on the civilian population. The two additional protocols adopted in 1977 extend and strengthen civilian protection in international (AP I) and non-international (AP II) armed conflict: for example, by introducing the prohibition of direct attacks against civilians. A "civilian" is defined as "any person not belonging to the armed forces", including non-nationals and refugees. However, it is accepted that operations may cause civilian casualties. Luis Moreno Ocampo, chief prosecutor of the international criminal court, wrote in 2006: "International humanitarian law and the Rome statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) ... or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality)."

The provisions and principles of IHL which seek to protect civilians are:

IHL provisions and principles protecting civilians

Principle of distinction

The principle of distinction protects civilian population and civilian objects from the effects of military operations. It requires parties to an armed conflict to distinguish at all times, and under all circumstances, between combatants and military objectives on the one hand, and civilians and civilian objects on the other; and only to target the former. It also provides that civilians lose such protection should they take a direct part in hostilities. The principle of distinction has also been found by the ICRC to be reflected in state practice; it is therefore an established norm of customary international law in both international and non-international armed conflicts.

Necessity and proportionality

Necessity and proportionality are established principles in humanitarian law. Under IHL, a belligerent may apply only the amount and kind of force necessary to defeat the enemy. Further, attacks on military objects must not cause loss of civilian life considered excessive in relation to the direct military advantage anticipated. Every feasible precaution must be taken by commanders to avoid civilian casualties. The principle of proportionality has also been found by the ICRC to form part of customary international law in international and non-international armed conflicts.

Principle of humane treatment

The principle of humane treatment requires that civilians be treated humanely at all times. Common Article 3 of the GCs prohibits violence to life and person (including cruel treatment and torture), the taking of hostages, humiliating and degrading treatment, and execution without regular trial against non-combatants, including persons hors de combat (wounded, sick and shipwrecked). Civilians are entitled to respect for their physical and mental integrity, their honour, family rights, religious convictions and practices, and their manners and customs. This principle of humane treatment has been affirmed by the ICRC as a norm of customary international law, applicable in both international and non-international armed conflicts.

Principle of non-discrimination

The principle of non-discrimination is a core principle of IHL. Adverse distinction based on race, sex, nationality, religious belief or political opinion is prohibited in the treatment of prisoners of war, civilians, and persons hors de combat. All protected persons shall be treated with the same consideration by parties to the conflict, without distinction based on race, religion, sex or political opinion. Each and every person affected by armed conflict is entitled to his fundamental rights and guarantees, without discrimination. The prohibition against adverse distinction is also considered by the ICRC to form part of customary international law in international and non-international armed conflict.

Women and children

Women and children are granted preferential treatment, respect and protection. Women must be protected from rape and from any form of indecent assault. Children under the age of eighteen must not be permitted to take part in hostilities.

Gender and culture

Gender

IHL emphasises, in various provisions in the GCs and APs, the concept of formal equality and non-discrimination. Protections should be provided "without any adverse distinction founded on sex". For example, with regard to female prisoners of war, women are required to receive treatment "as favourable as that granted to men". In addition to claims of formal equality, IHL mandates special protections to women, providing female prisoners of war with separate dormitories from men, for example, and prohibiting sexual violence against women.

The reality of women's and men's lived experiences of conflict has highlighted some of the gender limitations of IHL. Feminist critics have challenged IHL's focus on male combatants and its relegation of women to the status of victims, and its granting them legitimacy almost exclusively as child-rearers. A study of the 42 provisions relating to women within the Geneva Conventions and the Additional Protocols found that almost half address women who are expectant or nursing mothers. Others have argued that the issue of sexual violence against men in conflict has not yet received the attention it deserves.

Soft-law instruments have been relied on to supplement the protection of women in armed conflict:
  • UN Security Council Resolutions 1888 and 1889 (2009), which aim to enhance the protection of women and children against sexual violations in armed conflict; and
  • Resolution 1325, which aims to improve the participation of women in post-conflict peacebuilding.
Read together with other legal mechanisms, in particular the UN Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), these can enhance interpretation and implementation of IHL. 

In addition, international criminal tribunals (like the International Criminal Tribunals for the former Yugoslavia and Rwanda) and mixed tribunals (like the Special Court for Sierra Leone) have contributed to expanding the scope of definitions of sexual violence and rape in conflict. They have effectively prosecuted sexual and gender-based crimes committed during armed conflict. There is now well-established jurisprudence on gender-based crimes. Nonetheless, there remains an urgent need to further develop constructions of gender within international humanitarian law.

Culture

IHL has generally not been subject to the same debates and criticisms of "cultural relativism" as have international human rights. Although the modern codification of IHL in the Geneva Conventions and the Additional Protocols is relatively new, and European in name, the core concepts are not new, and laws relating to warfare can be found in all cultures. 

ICRC studies on the Middle East, Somalia, Latin America, and the Pacific, for example have found that there are traditional and long-standing practices in various cultures that preceded, but are generally consistent with, modern IHL. It is important to respect local and cultural practices that are in line with IHL. Relying on these links and on local practices can help to promote awareness of and adherence to IHL principles among local groups and communities.

Durham cautions that, although traditional practices and IHL legal norms are largely compatible, it is important not to assume perfect alignment. There are areas in which legal norms and cultural practices clash. Violence against women, for example, is frequently legitimised by arguments from culture, and yet is prohibited in IHL and other international law. In such cases, it is important to ensure that IHL is not negatively affected.

Moon

From Wikipedia, the free encyclopedia https://en.wikipedia.org/wiki/Moon   Near side of the Moon , lunar ...