Report of the Conference on the Promotion and Protection of Human Rights in Acute Crisis

Conference on The Promotion and Protection of Human Rights in Acute Crisis

London, 11-13 February 1998

Edited by
Co-Directors: Dr Mukesh Kapila (DFID) and
Professor Nigel S Rodley (University of Essex)
Rapporteurs: Professor Kevin Boyle (University of Essex)
and Ms Aisling Reidy (University of Essex)

Report links: website home page
Table of Contents - Search - Introduction - Recommendations - Opening Address - Papers Presented - Acknowledgements - Appendices
Papers Presented (by author):
1. Kate Mackintosh - 2. Nigel S Rodley - 3. Françoise Hampson - 4.Carlo von Flüe - 5. Geoff Gilbert - 6. Nicholas Morris - 7. David Bassiouni - 8. Philip Wilkinson - 9. Emma Shitakha - 10. Ian Martin - 11. Colleen Duggan

Françoise J Hampson

International Humanitarian Law in Situations of Acute Crisis




a) International and non-International conflicts
b) Customary Law
c) Enforcement of International Humanitarian Law



a) Pre-conflict situations
b) The conflict
c) Post-conflict



See elsewhere: Author's Biography (appendix C)


1. Introduction

In the conclusion to her paper, Kate Mackintosh states that:

'the use of human rights analysis in planning and implementing responses to crisis can improve protection'.1

The thesis of this paper is that, if human rights analysis is to shape responses during as well as after the worst of a crisis, that analysis must take into account international humanitarian law.

The paper will first examine what international humanitarian law is about and then consider similarities and differences between that body of rules and international human rights law. The third section will consider the context in which international humanitarian law operates, by following through the evolution of the crisis. Finally, there will be an attempt to evaluate the role which international humanitarian law does and / or could play.


1 Mackintosh K., International Response to Acute Crisis: Supporting Human Rights through Protection and Assistance, Conference Discussion Paper, p.34.[...back to main text]

2. What is "international humanitarian law"?

International humanitarian law is also known as the law of armed conflict or the law of war. In this paper, the first formula will be used, with the abbreviation IHL.

IHL is the body of rules which regulates the conduct of organised fighting parties during time of conflict. It is therefore immediately apparent that it is only of relevance to those crises which involve organised fighting and not, for example, to situations of famine, unconnected with war. The reference to organised fighting is to distinguish situations in which IHL is applicable from those involving criminal violence or mere banditry, in which it is not. In some circumstances, it may be difficult to distinguish the two, as in the case of local people with guns manning barricades in Bosnia-Herzegovina. Relevant factors for determining how the violence should be characterised include the existence, or otherwise, of some structure of command, military and / or political.

IHL applies equally to all the fighting parties, irrespective of the lawfulness of the resort to armed force. A separate body of rules addresses the lawfulness of the resort to armed force.2 The equal application of IHL to all the parties does not in any way affect their legal status. In particular, it does not imply, tacitly or overtly, any recognition of "rebels" or view as to the legitimacy of their cause.3

In essence, and this must be accompanied by the usual caveat concerning oversimplification, IHL regulates the conduct of hostilities with a view to keeping the inevitable killings and destruction to the inevitable minimum and protecting, so far as possible, those not involved in the fighting (i.e. civilians). It affords particular protection to the most vulnerable victims of war, such as the wounded and sick and persons in the power of the "other side", including former fighters.

It attempts to achieve those objects by

  1. identifying what can be attacked and /or

  2. identifying what cannot be attacked, except in certain circumstances and

  3. proscribing indiscriminate attacks, on account of the risk involved to those not participating in the conflict and

  4. proscribing the use of certain weapons on account of their effects.

This part of IHL is concerned with the conduct of military operations and essentially consists of "thou shalt not" injunctions.4

IHL addresses the need for protection of the most vulnerable by imposing obligations on the party in whose hands they find themselves. The protection of the wounded, sick, shipwrecked, prisoners of war and civilians in the hands of an opposing party essentially takes the form of "thou shalt" obligations.5

The detailed rules which make up IHL are to be found in both treaty law and customary law. There is a considerable body of detailed treaty rules, much of which has received widespread ratification.6 Most of the treaty law concerns international armed conflicts, that is to say conflicts between two or more states and situations of belligerent occupation, whether or not opposed.7 In some circumstances, conflicts in the name of self-determination are treated as international, even if they take place within the territory of one state.8

There is a limited amount of treaty law applicable to non-international conflicts and, within that limited framework, the main focus is on protecting civilians and the particularly vulnerable.9 In other words, there is very little on the conduct of hostilities between the fighting parties, beyond the minimum rules necessary to protect the civilian population from direct attack or the indirect effects of the fighting.

a) International and non-International conflicts

A moment's thought will make it clear why there is this difference between the treaty rules applicable in international and non-international conflicts. In the first situation, a state is fighting against a similar type of entity and one which can make the same type of legal claims. In the case of the Gulf War in 1990, for example, Iraq was in fact the aggressor. Kuwait had the right of self-defence. Iraq would also have had the right of self-defence if it had been attacked. That symmetry is not found in internal conflicts. The State has the monopoly on the legitimate use of force. The "rebels" are engaged in unlawful violence, usually against the State. If captured, they may be tried not merely for murder but for treason. Even if the "rebels" confine their attacks to members of the security forces, they are still subject to the exercise of the state's criminal jurisdiction.

In other words, a civil war is not, legally or politically, the same kind of thing as an inter-state war but within one State. States are very concerned lest they appear to give recognition to the "rebels" or legitimacy to their cause. This explains why the rules are less developed, particularly with regard to the conduct of hostilities. It does appear, however, that, in some quarters at least, there is the beginning of a tendency to assume that "gaps" in the rules applicable in civil wars can be filled in with the more detailed rules applicable in international conflicts. Two examples will illustrate the trend. One is the extension of limitations on the use of anti-personnel landmines (APMs) to non-international conflicts, by treaty law.10 The second example comes from the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which has before it issues such as the applicability of the rules on command responsibility in non-international conflicts.11

Nevertheless, it is clear that, legally at least, it is important to distinguish between a conflict characterised as international and one characterised as non-international. There are two other significant threshold questions. Within the category of non-international conflicts, one must distinguish between high intensity civil wars, in which relatively detailed treaty rules are potentially applicable12, and conflicts of a lower intensity in which the only applicable treaty law is common Article 3 of the four Geneva Conventions of 1949.13 The second threshold issue is the question of what constitutes an "armed conflict"? Isolated and sporadic acts of violence are not included.14

It will be recalled that human rights law also has a threshold - the point at which a state is entitled to derogate and modify the scope of certain of its obligations.15 There is no formal link between the human rights threshold and the IHL threshold.16 It is to be hoped that human rights monitoring bodies will determine that a state which invokes its right to derogate is estopped from claiming that the situation does not cross the threshold for the application of at least common Article 3 of the Geneva Conventions. This should not be used as an excuse for lowering the derogation threshold. It is to be hoped that common Article 3 will be applied even in situations in which a State is not entitled to derogate.

b) Customary Law

Customary law also plays a significant role in IHL. Given the quantity of treaty law, customary plays something of a subsidiary role in international conflicts. Potentially, it has a much greater part to play in internal conflicts. There is considerable uncertainty as to the content of customary law in such situations. That may be clarified in 1999 when the International Committee of the Red Cross (ICRC) is due to submit a report on customary law to the next Red Cross Conference. It will be based on what is believed to be the most thorough examination of state practice ever undertaken. In the meantime, the ICTY is already making a contribution. The appeal chamber has already stated that significant parts of the "laws and customs of law" applicable in international conflicts also apply, as a matter of customary law, to internal conflicts.17 Significant clarifications of custom as a source of IHL can be expected from that Tribunal over the next few years.

c) Enforcement of International Humanitarian Law

The system of enforcement of IHL is its weakest point. It relies principally on enforcement through the criminal law of the fighter's own state. In addition, every State is required to bring proceedings against those suspected of having committed "grave breaches" of the Geneva Conventions and Protocol I of 1977, irrespective of the nationality of the alleged offender or the victim and irrespective of where the act was committed.18 In the case of internal conflicts, the ICTY has ruled that States are free to bring proceedings on the same basis against individuals accused of violating Common Article 3 of the Geneva Conventions.19 They are not, however, required to do so. Much will depend on whether the domestic law of a particular State allows for this type of jurisdiction (universal jurisdiction).

It is self-evident that the overwhelming majority of war criminals remain unpunished. There are a variety of reasons for this. First, State authorities do not have a good track record for the prosecution of their own forces for suspected violations of IHL. They do enforce the rules when the issue concerns the effective functioning of the armed forces (e.g. failure to obey an order) but not when the victim was a foreigner or a civilian. Publicity may lead to prosecution in individual cases but then the defendant may have a sense of grievance for having been picked on arbitrarily.20

It is not clear that non-State forces have even shown the desire to "prosecute" a member of their own or the State forces. They do not generally have the machinery to do so. If any proceedings precede punishment, they are almost certainly a singularly rough form of justice.

The record of third States is no better. It will be recalled that, in the case of "grave breaches", they are under a legal obligation to prosecute. Nevertheless, the author knows of no case where a State prosecuted an individual on that basis alone.21

Prosecution may be difficult during an ongoing conflict for practical reasons. Even after the end of the fighting, however, experience suggests that there is no improvement. Amnesties are often said to be the price of a peace agreement and a transition to civilian rule. The experience of amnesties in Central and Latin America suggests that this may be called into question.22 Very recently in Argentina there have been heated debates about a long-standing amnesty for low and middle rank officers involved in the "dirty war". Sleeping dogs may have a tendency to wake up! Even at the point of transition, individuals in Rwanda and the former Yugoslavia have disputed the claim that there is a conflict between justice and reconciliation. The victims of the situation, and not just outsiders, have said that there can be no reconciliation without at least some measure of justice.

No consistent position has been taken by third States. Hand-wringing has not been accompanied by effective action. There are, of course, practical difficulties in bringing proceedings before their own courts but, even where that has been possible, they have generally shown a great reluctance to do so.23 The one exception is in relation to suspects from the former Yugoslavia. Certain states have brought proceedings, usually either because they had offered the suspect to the ICTY, who rejected him, and they effectively had no option but to try him themselves or because they had not introduced the domestic legislation necessary to effect a transfer to the ICTY.24 This "spin-off" effect of the existence of the ICTY suggests an additional reason for supporting the creation of a permanent criminal court.

Third states have also seen sleeping dogs wake up, as in the case of pressure to try those alleged to have committed international crimes during World War II. The experience in Australia, Canada and the UK suggests, not surprisingly, that trials fifty years after the events are fraught with difficulty. They also illustrate the possible problem of giving refuge or granting asylum to war criminals and those responsible for crimes against humanity or genocide.

This points to the need for trials at the time or as soon as possible after the event. The domestic legal system is best placed, practically speaking, to obtain evidence and summon witnesses. There are nevertheless real political difficulties in expecting a post-conflict domestic legal system to give fair trials to suspected war criminals. An international tribunal is a necessary fall-back but it needs to have the power to compel attendance and the production of documents.

If there was a reasonable prospect of an individual being tried for violating IHL, it might have a marked effect on the current trend of deteriorating respect for the laws and customs of war.



2 UN Charter, Articles 2(4), 39, and 51; see also customary law of self-defence and on what constitutes “intervention”. International law recognises a right of self-determination in some circumstances. It is not clear whether that includes a right to resort to armed force to achieve it. International law does not recognise a right of secession from an independent sovereign state but, where an entity has effectively seceded, international law provides for the legal consequences. [...back to main text]

3 e.g. Protocol I Additional to the Geneva Conventions of 12 August 1949, Article 4; common Article 3 to the Geneva Conventions of 1949. For treaty texts generally, see Roberts A. and Guelff R., Documents on the Laws of War, Oxford, 2nd edition, 1989. [...back to main text]

4 See, in particular, Hague Convention IV Respecting the Laws and Customs of War on Land, 1907; Protocol I Additional to the Geneva Conventions of 12 August 1949. [...back to main text]

5 See, in particular, the four Geneva Conventions of 12 August 1949 and Protocols I and II thereto of 1977. [...back to main text]

6 Virtually every State has ratified the four Geneva Conventions, over 140 States have ratified Protocol I and over 120 States have ratified Protocol II. [...back to main text]

7 Common Article 2 to the Geneva Conventions of 12 August, 1949. [...back to main text]

8 Article I para. 4 of Protocol I Additional to the Geneva Conventions of 12 August 1949; see note 2 supra.  [...back to main text]

9 Common Article 3 to the Geneva Conventions of 12 August 1949, and Protocol II Additional to the Geneva Conventions of 12 August 1949. [...back to main text]

10 Revised Protocol II to the 1980 Geneva Convention on Certain Conventional Weapons, revised in 1996; see also the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction. [...back to main text]

11 The characterisation of the conflict as international / non-international can legitimately vary from case to case. The Blaskic (“Lasva Valley”) Case, Case No. IT-95-14-T, involves inter alia military command responsibility during the conflict between Croats and Muslims in Bosnia-Herzegovina. The case of Slavko Damanovic (“Vukovar Hospital”), Case No. IT-95-13a-PT, involves inter alia political command in relation to the killing of patients from Vukovar Hospital at Ovcara. [...back to main text]

12 Protocol II Additional to the Geneva Conventions of 12 August 1949, Article 1, para.1. [...back to main text]

13 No minimum threshold is specified but see Protocol II Additional to the Geneva Conventions of 12 August 1949, Article 1, para.2. [...back to main text]

14 Protocol II Additional to the Geneva Conventions of 12 August 1949, Article 1, para.2. [...back to main text]

15 Rodley, N.S., International Human Rights Law and Machinery for Monitoring its Implementation in Situations of Acute Crisis, Conference Discussion Paper.[...back to main text]

16 There are cases in which human rights enforcement bodies have shown an awareness of IHL or even have applied it; “Abella” v. Argentina, Report No. 55/97, Inter-American Commission on Human Rights. [...back to main text]

17 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Decision of the Appeals Chamber in Prosecutor v. Duško Tadic, a.k.a. “Dule”, 2 October 1995, Case IT-94-1-AR 72.[...back to main text]

18 Geneva Convention I of August 12, 1949, Article 49 and analogous provisions in the other three Conventions and Protocol I Additional to the Geneva Conventions of 12 August 1949, Article 85. [...back to main text]

19 Tadic Case, note 16 supra. In 1997, Lord Avebury sought, unsuccessfully, to introduce legislation which would have made possible trials for the alleged violation of common Article 3 before courts in the United Kingdom. [...back to main text]

20 e.g. trial of Lt. William Calley following publicity about the massacre at My Lai, during the conflict in Vietnam; see also proceedings in Canada and Belgium arising out of the activities of their peace-keeping forces in Somalia. [...back to main text]

21 e.g. the transfer of an individual out of occupied territory would appear to be a “grave breach” of Geneva Convention IV of August 12, 1949, Articles 47 and 49. Nevertheless, it does not appear ever to have been contemplated to bring proceedings against Israeli officials, including Ministers, who ordered or implemented such transfers. There was, however, a legal obligation to do so. [...back to main text]

22 Sieder, R., (ed.) Impunity in Latin America, Institute of Latin American Studies, 1995; Hayner, P.B., ‘Fifteen Truth Commissions - 1974 to 1994: A Comparative Study’, 16 Human Rights Quarterly, 1994, p.597. [...back to main text]

23 e.g. Reporters Sans Frontières sought by court action to persuade the French authorities to exercise jurisdiction over named Radio Télévision Libre des Milles Collines journalists, allegedly based in France. They were unsuccessful at both first instance and on appeal. [...back to main text]

24 Cases have been brought before the courts of Sweden, Germany and Denmark. [...back to main text]

3. Similarities and differences between IHL and international human rights law

The underlying object of both IHL and human rights law is to avoid unnecessary pain and suffering. Both bodies of rules are based on respect for the human person.

There are significant differences between the two sets of rules but, far from being a cause of conflict, they in fact enable the rules to complement one another.25 They need to work in different ways because they are designed to operate principally in different situations.

IHL, both in customary law and as treaty law, is very much older in origin than human rights law. The first text which resembles a military code is that of Sun Tzu.26 The three main monotheistic religions contain principles, of varying specificity and obscurity, regulating conduct in conflict. To that tradition was added chivalric notions of honour, at least between fighters of a certain rank. The political developments in the seventeenth and eighteenth centuries, notably the creation of sovereign nation states, contributed to the nationalisation of honour. This gives IHL something of an advantage over human rights law, when it is invoked with the kind of belligerents so common today. The argument sometimes made, that international human rights law reflects Western imposition, does not apply. It is possible to appeal to fighters by appealing to the warrior tradition and / or cultural and religious principles in their own society. Both these sets of values may include care for the vulnerable and protection for non-fighters. In many situations, there is a very real ignorance regarding human rights values, not least because the values of civil society are unknown. Human rights notions do not exist in a vacuum of political philosophy. The only premise of IHL, however, is the fact of fighting. That may make it easier to enter into an IHL dialogue than a human rights dialogue, where there has never been the lived experience of civil society.

Another difference is that IHL is based on membership of a group and on obligations, not rights. How a person has to be treated depends on whether he / she is a civilian or a combatant or whether he / she is wounded or sick. It does not depend on any inherent attribute of the individual. The preoccupation of human rights law with the individual and its apparent lack of concern for the community causes difficulty in gaining acceptance for human rights values in cultures and societies which are much more community-minded than Western European societies. Those cultures may also be more receptive to the acceptance of obligations than to the assertion of rights.

Insofar as IHL and human rights law "deliver the goods", they do so through different systems and structures. Stable, which usually also means strong, government is necessary to deliver effective human rights protection. Respect for human rights usually makes such governments more stable, not less. The machinery of stable government includes functioning legal systems and independent judicial officers. That machinery is necessary to human rights protection. Without it, there can be no long term foundation for human rights protection. Protection of human rights requires mechanisms to investigate alleged abuses and thereby to prevent them. For these reasons, it seems impossible to envisage meaningful human rights protection in a failed State.

IHL, by contrast, functions essentially through the criminal law, whether enforced by court martial or the ordinary criminal courts. It imposes obligations on individuals, for the breach of which they may be criminally liable. An important tool for ensuring respect for the rules is the principle of command responsibility. A commander is responsible not only for what he does but also for what those under his command do, if he knows or ought to have known about it. This not only assists in maintaining discipline but, if the commander knows that in practice he will be called to account, it can make a significant difference to respect for the rules by soldiers on the ground.

It is possible to have highly disciplined fighting forces even where state structures are collapsing. If there is a culture of obedience to orders and responsible command, this could remain an effective constraint on conduct, even where the chances of trial may be remote. It should be remembered that simply because civilian judicial mechanisms have ceased to function does not necessarily mean that the threat of a court martial is an empty one.

In other words, in the case of failed States, it will rapidly become very difficult to ensure human rights protection but the possibility of IHL acting as a constraint on the conduct of fighters may last a little longer. Insofar as IHL depends more than human rights law on the conduct of individuals on the ground, the possibility exists that fighters in one area may respect the rules whilst those in another do not. Insofar as human rights require effective institutional protection (e.g. effective investigators, effective prosecutors, independent judges), a breakdown somewhere is more likely to mean a breakdown everywhere.

These factors suggest that, during a period of armed conflict, use of IHL as a tool of persuasion with the fighting parties may be more effective than reliance on human rights principles alone. This is likely to be particularly the case with non-State fighters. In the aftermath of the fighting, reliance has to be placed on human rights because IHL ceases to be applicable, except in relation to criminal proceedings arising out of the conflict. In that case, the protection of the vulnerable in situations of acute crisis requires the use of both IHL and human rights to achieve the same goal. The choice will depend on what is likely to be most effective with the particular group being addressed and at that particular stage in the evolution of the conflict.


25 The ICRC’s “Avenir Project”: Challenges, Mission and Strategy, 12 December 1997, ICRC, p.4 at 3.1.2 [...back to main text]

26 Sun Tzu wrote The Art of War over two thousand years ago. [...back to main text]

4. The context

Whilst IHL is only applicable during the conflict, the situation on the ground before the outbreak of fighting will have an impact on the conflict and what happens during the fighting will affect the situation after the close of hostilities.

a) Pre-conflict situations

There are usually clear warning indicators that a situation is deteriorating to the point at which open organised fighting is likely. Many of the signs surface in one or other of the human rights bodies.27 The problem is not that they are not recognised for what they are but rather that the international community appears unable to find the will and resources to take effective preventive action.

Significant under-development is often accompanied by a lack of good government. A small element of economic disturbance may set in train increasing disaffection and criminality. The threat to governmental authorities will often be met with greater repression. Whilst the elements are different in each situation, the pattern is often remarkably similar. The economic, social and legal system is often fragile, with little scope for adjusting to setbacks. A problem, man-made or natural, occurs and the authorities do not have the tools, resources or experience to cope, other than by resorting to increasingly repressive measures in the face of disturbances. Another common model is where one group within a State feels itself to be disadvantaged and wants greater autonomy or even secession. Even if other elements are present, such as different ethnicities, there is usually also some perception of economic grievance. That is probably also true in the third type of scenario - a power struggle, possibly with an ideological component. For a significant number of individuals to be willing to fight, they must think that they have nothing to lose and / or something to gain or they must think they have no choice.

The form the collapse into fighting takes will affect the extent to which an organised infrastructure can be used, for example for the delivery of humanitarian assistance. The pre-conflict situation will also affect which agencies are already in theatre. A development agency already on the ground may be able to implement relief programmes more rapidly if personnel are already there and they have existing contacts with officials at both the local and national level.28

Weapon procurement, by both states and other parties, will shape the conduct of the conflict. Whether unreasonable quantities of weapons are stockpiled or whether they are purchased in the immediate run-up to the conflict, the international community is in a position to do something about it. The difficulty is that it appears illegitimate for a well developed Western State with sophisticated armed forces and equipment to tell another State what it can be allowed to have to defend itself. Expressing the total appropriate defence expenditure as a proportion of GNP or of expenditure on health and education may be less objectionable.

If States wished to prevent crises from becoming wars, much might be achieved through effective limits on weapon acquisition. Economic pressures within arms manufacturing States make it very unlikely that this problem will be addressed effectively.

b) The conflict

The causes of the conflict may well affect the form that the fighting will take, along with such practical constraints as resources and geography. In particular, if the very object or goal of one party is unlawful (e.g. the involuntary displacement of a distinct group in the population) it is most unlikely that it will be achievable by lawful means. That will make it more difficult to get respect for IHL on the ground. "Ethnic cleansing", for example, required the targeting of civilians, in order to get them to move. That includes not only direct attacks but also denial of humanitarian assistance. There is a certain logic to the means chosen in pursuit of the unlawful goal. The unlawfulness of both means and ends is unlikely to deter the belligerents. Where the goal is simply to gain power, it may be easier to persuade the parties to avoid unlawful means in the pursuit of that objective.

There is a real challenge for the international community. If aggression or "ethnic cleansing" or atrocities are not to be rewarded, then the means must be found to prevent them. States lost a good deal of credibility on account of their moral posturing about atrocities in Bosnia-Herzegovina, without having the political will to generate the means to prevent the objectionable results. Where States take strong moral positions but no effective action to support them, any peace-keeping forces in the field are, from the outset, likely to suffer a loss of credibility. This adversely affects their deterrent value.

The presence of "peace-keeping" forces will affect the dynamics of the conflict.29 The issues include whether the force is there with consent, whether it has a Chapter VI or Chapter VII mandate, whether it has a peace-enforcement, wider peace-keeping or traditional peace-keeping role, whether it has the human, material and logistic resources to carry out its mandate, whether it has clearly defined and achievable goals or whether its presence is a substitute for policy and whether the various contingents have the training and experience necessary for the particular operation. Whilst these elements are inter-related as far as the operation itself is concerned, they reflect different types of problems. Far and away the most significant issue is the question of political will. If the international community wills the end, it must will the means - but often does not do so. Another problem is decisions with a decisive impact on the likelihood of achieving the military objective being taken by diplomats and politicians, without adequate consideration being given to non-negotiable military realities (e.g. "safe areas" in Bosnia-Herzegovina). A variety of legal questions are also likely to arise, both with regard to the creation of the force and in the dealings of the contingents with one another and with the force commander.

What the "peace-keeping" force can do and what it is perceived as being able to do (which may well be different) will have a significant impact on the conduct of the belligerent parties. The force may become the target of attack, both directly and by being made ineffective.30

The variables associated with the role and configuration of the force and the variables in the response of the belligerents to the force make it impossible to predict in the abstract what will happen in a given situation. It can nevertheless be said with some certainty that the presence of the force will affect the conduct of the hostilities and the treatment of victims of the conflict. In other words, it will have an effect (positive or negative) on the respect for the rules of IHL. Those rules, and the language of the rules will be an important means of communication between the fighting forces and the "peace-keepers". It may, in a real sense, be the only common language between them.

The peace-keeping forces not only have to deal with the belligerents but also with the presence of intergovernmental and non-governmental organisations that find their way to conflict zones. They include UN agencies, UNHCR and UNICEF. The NGOs include long-established, responsible and experienced organisations. They also include "cowboys", whose presence may attract media attention which puts pressure on other organisations to engage in high profile work to maintain donor support. The ICRC clearly has a unique role in being expressly mandated to be involved in conflict situations and having unparalleled experience. Nevertheless, the ICRC way of doing things is not the only way of doing things. Different approaches of different organisations could, if properly co-ordinated, complement one another to the benefit of those they are there to help.

The other players with a potentially important role are the world media. The extent to which the "CNN factor" plays a decisive role is a subject of dispute between journalists themselves.31 A separate but relate question is the need for journalists to know and understand IHL. That would enable them to distinguish between political elements in the situation and war crimes.32

Whilst these players are not the principal addressees of IHL, nevertheless the law provides a context for their activities and may determine how they are characterised. The moral sense of an NGO that it should be able to deliver relief because it is helping victims may find expression as their "right" to deliver or the recipients' "right" to receive humanitarian assistance. Again, the language of discourse of IGOs and NGOs with belligerents and peace-keepers alike is IHL. It is all that is available to them in common. This phenomenon is also reflected in the language of Security Council resolutions. In the past decade, they have used the language of IHL very much more than previously. It is significant that it is not merely lawyers who are analysing activities in terms of IHL but all the players, both those in the field and those dealing with the political aspects of the conflict. In order for IHL to be used in this way, it is necessary for all the parties to learn the language. Progress is being made but there is a long way to go.

c) Post-conflict

The way the conflict is conducted will play an important role in shaping the outcome. The duration of the fighting, the extent of population displacement, the type and scale of atrocities, the extent of destruction of the physical infrastructure, will all affect the chances of obtaining a sustainable cease-fire and its content. Those elements will be affected by who is where and doing what and what is being reported. The actions and reactions of the parties are shaped by and expressed through the moral precepts which form the foundation of IHL. Examples from the conflict in Bosnia-Herzegovina will illustrate the point. "Ethnic cleansing" seemed wrong per se. It was not the detention of men of fighting age that was wrong but the conditions of detention and the savage ill-treatment to which they were subjected. The detention of women and children would be wrong per se. The attacks against the "safe areas" were wrong because they were full of displaced people who could not defend themselves and were made victims twice over. The fact that, in the last case, the public did not know that the Bosnian Serbs were being attacked by forces within the "safe areas" is beside the point. Given the facts as he knew them, "Joe Public" thought it was wrong and, had the facts been as he thought them to be, it would also have been unlawful.

IHL in providing a context for the analysis of conduct in conflict also shapes the outcome. No one can pretend that it is decisive but it is the language through which the experience is mediated.

As the situation evolves into one in which rehabilitation, the re-establishment of the institutions of civil society and the protection of human rights become predominant, the new players will be building on a foundation created in part by an IHL analysis. It is therefore important that they should understand both the IHL discourse which they inherit, as well as the human rights language with which they will seek to build the future.

Some aspects of the conflict will need to be addressed even whilst peace building is under way. The obvious examples include clearing unexploded munitions, notably APMs and determining whether alleged war criminals are to be prosecuted and, if so, by whom. There will also be a need to disarm the fighting parties and to enable them to make the transition to a peace-time environment. This can be a particular problem in the case of orphaned child soldiers. The police force will need not only to be trained but to be subjected to effective accountability. It is likely that the police will have played a nefarious role in the situation which deteriorated into fighting and during the conflict. They may well need to prove they deserve the confidence of a suspicious population.

The case of the policy provides an instructive example of what needs to be done to secure effective human rights implementation. An observer would be forgiven for concluding that the international community thought it sufficient to provide a few training sessions for the new police force. In fact, what is needed requires much greater analysis. In a context in which there has been no real experience of civil society, the police may have perceived themselves, and been perceived by others, as defenders of the State, rather than as defenders of the public. That would point to a need to educate both the new police force and the public as to the proper role of the police. Even that is insufficient. A combination of sticks and carrots is necessary. The police must be promised and actually receive an appropriate salary, so that there is no "need" for them to resort to corruption. It must be seen as a worthwhile job, not just in financial terms; one which and individual would not wish to loose. It must also be clear that breaches of the rules will result in the loss of the job. That requires effective accountability and an independent investigative mechanism. The public must be encouraged to make justified complaints, secure in the knowledge that they will be investigated and acted upon. That, in turn, requires an effective and independent system of prosecution. In other words, any attempt to create an effective police force which does not address the need to create an effective, independent, non-corrupt legal infrastructure, is probably doomed to failure.

Where the new police force consists of demobilised ex-fighters, there are special challenges. It is first necessary to ensure that they do not remain potential fighters, masquerading as bodyguards or specialist police force. That means de-militarising and disarming them, a task which may have to be carried out by soldiers. To avoid loss of face for them, it may in fact be necessary to use the threat of a big military stick. This enables the "policemen" to surrender their weapons because they had no choice, rather than tempting them to risk shooting it out. De-militarising them has to be done consciously. It is not likely to be effective if a policing culture is simply superimposed on a military one. That may call for different trainers from those used to inculcate good policing habits.

The creation of an accountable police force cannot be achieved without an analysis of the past role of the police and the role in the crisis of the individuals destined to be policemen in the future or without the creation of effective mechanisms of accountability.

This is but one illustration of a more general issue. Alongside the legacy of the fighting, peace-building needs to be taking place. That involves in post-conflict situations, participation, accountability, and respect for the rule of law. A human rights analysis then again comes into its own.


27 Rodley, N.S., note 15 supra. [...back to main text]

28 e.g. SCF (UK) in Somalia. [...back to main text]

29 See generally, Hampson, F.J., ‘State’s Military Operations Authorised by the United Nations and International Humanitarian Law’ in Condorelli, L., The United Nations and International Humanitarian Law, Padova, 1996; Palwankar, U., (ed.) Symposium on Humanitarian Action and Peace-keeping Operations, ICRC, 1994. [...back to main text]

30 Convention on the Safety of United Nations and Associated Personnel, 1994, criminalises direct attacks but it is far from clear that the analysis on which such an approach is based is in the interest of peace-enforcers; see Hampson, F.J., ‘The Protection of “blue helmets” in International Law’, 36 Mil. L. and L. of War Review (1997), p.203. See generally von Flüe, C., (ed.) International Humanitarian Law and Protection, Report of the Workshop 18-20 November 1996, ICRC.[...back to main text]

31 Roberts, A., Humanitarian Action in War, Adelphi Paper 305, 1996, International Institute for Strategic Studies, Oxford University Press, p.82; Gowing N., Real Time Television Coverage of Armed Conflicts and Diplomatic Crises: Does it Pressure or Distort Foreign Policy Decisions?, Press, Politics and Public Policy Working Papers 94-1, 1994, Harvard; Gowing’s review of Bell M., In Harm’s Way: Reflections of a War Zone Time, 1995, Hamish Hamilton, in British Journalism Review (1995), n.4, p.67.[...back to main text]

32 Gutman, R. ‘Crime Reporting’ in War Report, February-March 1998, p.34.[...back to main text]

5. Conclusion

Those who think that human rights law is not applicable in armed conflict situations are, quite simply, wrong. Its application is, however, modified and restricted. It is not designed for conflict situations.

International humanitarian law, however, is designed for just such situations. It meets the needs of fighting parties in an even-handed way whilst seeking to protect civilians and the most vulnerable to the greatest extent practicable.

The concepts and language of IHL provide a neutral, non-partisan tool, which can be used by all the actors involved in the situation, including IGOs and NGOs. For them to be able to use it, they first need to learn it. More needs to be done to ensure that all those who may need to use IHL get to know it.

6. Proposals


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Papers Presented (by author):
1. Kate Mackintosh - 2. Nigel S Rodley - 3. Françoise Hampson - 4.Carlo von Flüe - 5. Geoff Gilbert - 6. Nicholas Morris - 7. David Bassiouni - 8. Philip Wilkinson - 9. Emma Shitakha - 10. Ian Martin - 11. Colleen Duggan
Report links: website home page
Table of Contents - Search - Introduction - Recommendations - Opening Address - Papers Presented - Acknowledgements  - Appendices
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