speech on
humanity and human right
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by wars.
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In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of 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 adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
a. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b. Taking of hostages;
c. Outrages upon personal dignity, in particular humiliating and degrading treatment;
d. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.
2. The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. [...] While human rights law provides for derogation of some rights in times of emergency, it is important to note that several human rights may not be derogated from under any circumstance (see I§2.B).
1. INTERNATIONAL ARMED CONFLICT
Broadly speaking, international armed conflicts involve different states whereas noninternational armed conflicts involve government and rebel forces within the territory of one state. This distinction is not always applicable. In the wake of the emergence of numerous new states - as a result of sometimes violent decolonisation - the international community recognised that certain ‘internal’ conflicts
Protocol I to the 1949 Geneva Conventions (1977) relates to international armed conflicts. The international law regarding these types of conflicts is less related to the human rights discussed in this handbook. Nevertheless, Article 75 of Protocol I stipulates certain rights for individuals while Article 1 refers explicitly to the Martens clause (introduced at the 1899 Hague Peace Conference). The Martens clause states that in cases which are not covered by the above-mentioned Conventions and their Protocols, civilians and combatants ‘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 public conscience’. It should be noted that expressions such as ‘principles of humanity’ and ‘public conscience’ have not yet been defined in terms of human rights.
Article 75 of Protocol I regulates the rights of individuals who find themselves in the power of a party to a conflict of which they are not subjects. Article 75 could be regarded as a mini-convention on the protection of basic human rights during international armed conflicts. In fact, the article’s authors carefully studied all the material provisions of the ICCPR and distilled from it the regulations they considered most important and which can be expected to be observed, even in times of war. Paragraph 1 of Article 75 contains the same prohibition of discrimination as Article 2 ICCPR. Paragraph 2 of Article 75 reads:
The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or military agents:
(a) Violence to the life, health or physical or mental well-being of persons, in particular:
murder,
torture of all kinds, whether physical or mental,
corporal punishment,
mutilation;
(b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
(c) The taking of hostages;
(d) Collective punishments;
(e) Threats to commit any of the foregoing acts.
Paragraphs 3 and 4 of Article 75 contain due process rights, while paragraph 5 deals with the treatment of female prisoners. Paragraph 6 emphasises that the various regulations of the Article remain in force on the cessation of hostilities for people who are still being detained. Paragraph 7 contains provisions on the prosecution and trial of persons who have been accused of war crimes or of crimes against humanity.
A prisoner of war (POW) is a combatant who is imprisoned by an enemy power during an armed conflict. The first international convention to define the requirements for combatants to be eligible for treatment as prisoners of war was the Second Hague Convention (1899). The 1949 Geneva Conventions are the main conventions today that provide a framework for protective rights of POWs. The basic principle is that being a soldier is not a punishable act in itself.