COMPILATION OF INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY
Part V. Rights of Vulnerable Groups. 6/11   
5. Rights of Victims of Armed Conflicts
The evolution of international law related to the protection of war victims and to the
conduct of war has been strongly affected by the development of human rights
protection after the Second World War. The adoption of important international instruments
in the field of human rights contributed to affirm the idea that everyone is entitled to
the enjoyment of human rights, whether in times of peace or war. In times of peace human
rights are the fundamental principles for the protection of all persons in all contexts,
but the different circumstances during wartime require special protection for the
individual-civilians as well as combatants.
In today's armed conflicts, civilians are much more exposed to weapons of mass
destruction is one of the major causes of disability. The nature and extent of the harm
suffered by victims of a situation of an armed conflict depends to a large extent on the
combat methods used and the use of certain particularly harmful weapons. Often violations
of humanitarian law, like ill treatment of prisoners of war or civilians and illegal
military operations, lead to an increased number of disabled persons, as well as more
permanent disabilities.
The United Nations Security Council, expressing its belief in the connection between
holding individuals responsible for international crimes and future prevention,
established the Ad hoc International Criminal Tribunals for the Former Yugoslavia
and Rwanda. The work of the United Nations Voluntary Fund for
Victims of Torture was established to meet the immediate medical, psychological,
and financial needs of survivors. This Fund redistributes voluntary contributions of donor
governments primarily to nongovernmental programs providing direct medical and
psychological treatment and economic. Social and legal assistance to survivors
of torture.
5.1 Human Rights in Times of Emergency
The enjoyment of some human rights may be restricted during times of war or public
emergency. The international instruments on human rights define a state of emergency as a
"...public emergency which threatens the life of a nation.", like article 4 of
the International Covenant on Civil and Political Rights. Accordingly,
war is the greatest public emergency; the emergency must be actual, affect the whole
population and the threat must be to the very existence of the nation. The declaration of
emergency must also be a last resort and a temporary measure.
Three of the most important human rights conventions, the International
Covenant on Civil and Political Rights, the European Convention on Human Rights and the
American Convention on Human Rights, contain derogation clauses with specific
standards on human rights in states of emergencies, e.g. Article 4 of the International
Covenant on Civil and Political Rights allows States to take measures temporarily
derogating from some of their obligations under the Covenant "...in times of public
emergency which threatens the life of a nation." but only to the "...exigencies
of the situation."
Certain rights have been considered so important that they are non-derogable. In the
three conventions there exists four common non-derogable rights. These are the right to
life, the right to be free from torture and other inhumane or degrading treatment or
punishment, the right to be free from slavery or servitude and the right to be free from
retroactive application of penal laws. These rights are also known as
peremptory norms of international law or jus cogens.
5.2 Human Rights and International Humanitarian Law
The basic object of both human rights law and humanitarian law are to
extend protection to the human person in all circumstances and in all types of conflicts.
The most relevant of the laws of war as far as human rights are concerned are the
four Geneva Conventions and the two Additional Protocols.
The Geneva Conventions and Protocols try specifically to protect all human beings affected
by armed conflict, especially those who are not, or no longer, directly engaged in
hostilities. These persons hors de combat are the wounded and sick, shipwrecked,
prisoners of war and civilians. The Conventions also contain specific provisions covering
the four common non-derogable rights of human rights treaties. Accordingly, the rights
protected in the Geneva Conventions and Protocols overlap to a certain extent with those
included in the human rights treaties.
The 1863 Lieber Code and the first Geneva Convention of 1864
can be regarded as the foundation of international humanitarian law. A need to broaden the
scope of the Geneva Convention and to take the changing character of warfare into account,
soon resulted in the adoption of several international conventions. In the aftermath of
the Second World War, the international community wanted to update international
humanitarian law to the changing character of warfare. New conventions were drawn up
covering, respectively, the sick and the wounded on land (First Convention),
wounded, sick and shipwrecked members of the armed forces at sea (Second
Convention), prisoners of war (Third Convention) and civilian
victims (Fourth Convention). The four Geneva Conventions remain in force
today, and are considered to reflect customary law, but new forms of armed conflicts
called for further action. Two Additional Protocols to the 194 9 Conventions were adopted
in 1977. Additional Protocol I concerns the victims of international conflicts and the
Second Protocol concerns the victims of internal conflicts. The vast majority of states
have adopted the above-mentioned conventions.
5.3 Civilians and Persons Hors de Combat in General
The four Geneva Conventions of 1949 established the principle of international
humanitarian law that a distinction should be made between combatants and civilians, who
take no active part in hostilities. This customary rule of non-combatant immunity is also
codified in the Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts (Protocol 1).
Article 51 contains specific rules for the protection of civilians. Civilians shall enjoy
general and specific protection from military operations and indiscriminate attacks. The
provisions of Protocol I, relating to civilian protection, are of great significance
because they establish concrete rules; non-combatant immunity is no longer an abstract
formulation.
TheCommon Article 3 of the Third and Fourth Geneva Conventions of 1949,
relative to the treatment of Prisoners of War and the Protection of Civilian Persons in
Times of War, and customary law also in international conflicts, provides that
"...persons taking no active part in the hostilities, including members of the armed
forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely, without any
distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria." The same article prohibits violence to life and person,
particularly murder, mutilation, cruel treatment or torture, humiliating and degrading
treatment.
5.4 Special Protection for the Wounded and Sick
Article 12 of the Geneva Convention of 1864 states that
"...Members of the armed forces and other persons (...) who are wounded or sick,
shall be respected and protected in all circumstances. They shall be treated humanely and
cared for by the Party to the conflict in whose power they may be, without any adverse
distinction founded on sex, race, nationality, religion, political opinions or any other
similar criteria. Any attempts upon their lives, or violence to their persons, shall be
strictly prohibited; in particular, they shall not be murdered or exterminated, subjected
to torture or to biological experiments...". The Parties to the Geneva
Conventions also have to search for and collect the wounded and sick and to ensure them
protection and care (article 15).
In Common Article 3 of the Third and Fourth Geneva Conventions of 1949,
relative to the treatment of Prisoners of War and the Protection of Civilian Persons in
Times of War special protection is given to wounded and sick persons in an
internal conflict. The article states that "...the wounded and sick shall be
collected and cared for (...) they shall be treated humanely and cared for by the Party to
the conflict in whose power they may be, without any adverse distinction founded on sex,
race, nationality, religion, political opinions or any other similar criteria." The
parties to the Conventions also have to search for and collect the wounded and sick and to
ensure them protection and care (article 15).
The definition of wounded and sick for the purpose of the Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol 1) is "...persons, whether military or
civilians, who, because of trauma, disease or other physical or mental disorder or
disability, are in need of medical assistance or care and who refrain from any act of
hostility." The wounded and the sick shall be respected and protected. They shall be
treated humanely in all circumstances, and they shall receive the medical care they
require. It is prohibited to carry out physical mutilations, medical experiments or
removal of tissue or organs, if the medical state of the wounded does not require it.
If the civilians and combatants are not protected by the Protocol or by other
international agreements, they remain under the protection and authority of the principles
of international law derived from established custom, from the principles of humanity and
from the dictates of the public conscience (article 1).
5.5 Victims of Land Mines and Armed Conflicts
Anti-personnel land mines are primarily designed to cause severe injury to a person.
Mines are also deployed to hinder access or usage of farmlands, roads, waterways and other
public utilities. It is estimated that over 2,000 people are killed or injured by mine
explosions every month, most of the victims are civilians after the hostilities have
ended, especially women and children. The victims of mine explosions, who survive, suffer
the loss of one or more limbs in almost all cases. This is why anti-personnel landmines
are a major cause of disability. It is estimated that more than 110 million active mines
are scattered in 70 countries and since a land mine can remain active up to 50 years after
it has been planted, one can speak of a global crisis that requires the attention of the
international community.
The use of anti-personnel land mines is regulated under international humanitarian law
both by custom and by treaties. The existing customary and treaty law was not able to give
protection in an effective way, and a total ban on anti-personnel land mines enjoyed
widespread support of the international community. The efforts of the United Nations,
governments and non-governmental organizations to ban landmines resulted in the Convention
on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and Their Destruction. A vast majority of States have signed the Convention
and as of October 1998 the Convention has been ratified by 45 states. The Convention will
enter into force 1st of March 1999. The Parties to the Convention undertake never under
any circumstances to use anti-personnel mines or to develop, produce or otherwise acquire
anti-personnel mines (article 1). Each Party also undertakes to destroy anti-personnel
mines. To ensure that the substantive obligations of the Convention become reality in
practice, the Convention contains a provision on national implementation measures. Each
State Party shall take all appropriate legal, administrative and other measures, including
the imposition of penal sanctions, to prevent and suppress any activity prohibited under
the Convention (article 9). The Convention also provides for on-site inspections if
a Party is suspected of breaching its obligations under the Convention. Under the
Convention, each State Party in a position to do so has a duty to provide assistance to
mine victims. In addition to care and rehabilitation, social and economic reintegration
should also be provided (article 6).
Such assistance may be provided through the United Nations System, the International
Committee of the Red Cross (ICRC) or different organizations.
A State Party also has the right to seek assistance from others in its efforts to care
for its mine victims (article 6).
The Convention is an important step in banning this method of warfare, which causes
superfluous injury and unnecessary suffering. However, the problem is far from being
resolved. The level of ratification is still low and with millions of mines already
planted, civilians will continue to be killed or injured. National societies play an
important role in ensuring that the provisions of the Convention are implemented and
respected at the national level. Through discussions and co-operation with their
Governments, Parties can work to promote adoption of effective national legislation or
other administrative measures in order to ensure that the objectives of the Convention are
achieved.
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