Internal Violence and International Humanitarian Law

ABSTRACT Countries have always experienced a degree of violence that has consequently endangered their rule of law and fundamental rights of their people. The social, civil and political problems are getting more and more complex day by day which has led to increase in levels of violence. The internal violence within countries lead to a situation where fundamental rights of people are hampered and governments continue to disrespect their fundamental obligations. It is at this stage that international community is required to analyse such situations happening within a state and do its best to mitigate the possibilities of human right violations. The incidents of illegal arrest, torture, restriction or complete abrogation of fundamental rights remain high during such situations of internal violence. To tackle these types of incidents, there is a need of comprehensive and well-organised legal order which can make a strict obligation upon national governments to follow their fundamental obligations. In case of failure such governments can be punished in forms of sanctions and various other methods. One side of International law stalwarts say that International Humanitarian Law can be the best way of dealing with such situations while on other side we have scholars who eulogise that International Humanitarian Law is insufficient and vague to deal with the situations of Internal Violence. The paper analyses the concept and working of International Humanitarian law and its scope of application. It also looks at the situations of internal violence and the ability of international humanitarian law to deal with it. Paper also tries to put forward an alternate way to deal with the problems of internal violence in light of certain other international conventions and treaties. In addition to that, the paper adopts a comprehensive insight over working of International Humanitarian law and the points of distinction which it may have with regards to international human rights law. A suggestion has been put forward to widen the area of application of International Humanitarian Law to internal violence with the help of an article by Djamchid Momtaz, a professor at the Faculty of Law and Political Science of the University of Tehran. An observation regarding challenges faced by the present International Humanitarian Law has been made in the paper.

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International Humanitarian Law International Humanitarian Law can be defined as the branch of International limiting the use of violence in armed conflicts by sparing those who do not or no longer directly participate in hostilities, limiting the violence to the amount necessary to achieve the aim of the conflict, which can be independently of the causes fought for only to weaken the military potential of the enemy1. International humanitarian law (IHL) is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. It is also known as Law of war or law of armed conflict. This definition points at basic principles of IHL: The distinction between civilians and combatants; The prohibition to attack those de hors combat; The prohibition to inflict unnecessary suffering ; The principle of necessity; and The principle of proportionality.

This definition also leads to show certain inherent limits of IHL: It does not prohibit the use of violence; It cannot protect all those affected by an armed conflict; It cannot prohibit a party to overcome the enemy; IHL presupposes that parties to an armed conflict have rational aims.

In the reality of even contemporary conflicts, the expectations of belligerents and the arguments made, including the hypocrisies adopted, by governments, rebels, politicians, diplomats, fighters, and national and international public opinion refers to standards, not only on when armed violence may be used (or, rather, that it may not be used) but also on how it may be used 2. At the level of judgment on behaviour (and this is what law is all about).

``How does law protect in war``, Volume 1, Outline of International Humanitarian Law, ICRC Ibid. Page 2

Internal Violence and International Humanitarian Law

International Humanitarian Law is omnipresent in contemporary conflicts, the expectations of belligerent, and the arguments made, including the hypocrisies adopted, by governments, rebel, politicians, diplomats, fighters, and national international public opinion refer to standards, not only on when armed violence may be used (or rather, that it may not be used ) but also on how it may be used. At the level of judgment on behavior (and this is what law is all about). International Humanitarian Law is omnipresent in contemporary conflicts: in United Security Council resolutions and on the banners of demonstrators, in speeches of politicians, newspaper articles, in political pamphlets of opposition movements and in reports of non-governmental organizations, in military manuals of soldiers, and in aide memoires of diplomats. People with completely different cultural and intellectual backgrounds, emotions, and political opinions agree that in an armed conflict killing an enemy soldier on the battlefield and killing women and children because they belong to enemy are not equivalent acts. Conversely, no criminal justice system confers a different legal qualification upon a bank-robber who kills a security guard and a bank-robber who kills a client of the bank3. International Humanitarian Law is somewhat related to International Law in certain situations like:

When the international courts and tribunal while applying the set provisions of International Humanitarian Law also look at general principles of International law.

They also observe set parameters of customary International Law.

While doing so, these courts and tribunals also follow minimum standards to apply International Humanitarian Law.

Sources of International Law There are more than hundreds of treaties and conventions working as source of international law. However, we can have a glance at some of them:
3

Ibid. Page 3

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Four Geneva Conventions of 1949.

First Additional Protocol, 1977 based on International Armed Conflict and protection of civilians.

Second Additional Protocol, 1977 based on Non-International Armed Conflict.

Third Additional Protocol of 2005 called for re-additional emblem.

Weapons and Treaties for their mitigation (Ottawa Convention, Chemical Weapons, Biological Weapons, Certain converted weapons)

Apart from aforesaid sources of International Humanitarian Law, there are still other sources which also influence International Humanitarian Law in some way or other. The refugee law, Humanitarian Law, Right to resort to force, Law of sea etc are other International laws which also become components of International Humanitarian Law. The Concepts of Jus-in-bello and Jus-ad-bellum The rules of International law applicable between parties to an armed conflict and related to armed conflict are called as jus in-bello. While Jus ad bellum deals with the rules of International law governing to resort to armed forces. The Geneva Law4 has formed the part of Jus in-bello. Geneva Law says that humanitarian law is a field which is designed to safeguard military personnel and who are not or are no longer taking part in the fighting and persons not actively involved in hostilities. They can be sick persons, prisoners of war (POWs) etc. Further there is Hague law5 which states that the law of war which establishes the rights and obligations of military operations and limits the means of harming the enemy.

Present day modern International Humanitarian law is governed by two principles - the Law of Geneva, i.e. a body of rules which protect victims of war, and the Law of The Hague, i.e. those provisions which affect the conduct of hostilities 5 Supra. Page 4

Internal Violence and International Humanitarian Law

Development of International Humanitarian Law Its very beginning can be traced back to battle of Solferino, a terrible battle in Northern Italy between French, Italian, and Austrian forces in 1859. Witness of this carnage, Henry Durant, a businessman from Geneva was struck not so much by the violence of that fight but rather by the miserable fate of wounded left on the battlefield. Together with women of the surrounding villages he tried to alleviate the suffering. Back in Geneva, Dunant published in 1862 a short book A memory of Solferino in which he vividly evoked the horrors of battle, but also tried to find remedies to the sufferings he had witnessed. Among other proposals, Dunant invited states to formulate some international principle, sanctioned by a Convention inviolate in character and giving a legal protection to military wounded in the field. Dunants proposals met an enormous success all over Europe. A few months after the publications of his book, a small committee, the ancestor of the ICRC was founded in Geneva. Its main objective was to examine the feasibility of Dunants proposals and to identify ways to formalize them. After having consulted military and medical experts in 1863, the Geneva committee persuaded the Swiss Government to convene a diplomatic conference. This conference met in Geneva in August 1864 and adopted the Geneva Convention for the Amelioration of the condition of the wounded in Armies in the field. For the first time, States agreed to limit-in an international treaty open to universal ratificationtheir own power in favor of the individual and, for the first time, war gave way to written, general law. In this way modern International Humanitarian Law was born. We must discuss some of the major features supporting this evolution: The constant enlargement of the categories of war victims protected by the Humanitarian

law (military wounded; sick and shipwrecked; prisoners of war; civilians in occupied territories; the whole civilian population), as well as by the expansion of the situations in which victims are protected (international and non-international armed conflicts);

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The regular updating and modernization of the treaties, taking into account the realities of

the most recent conflicts: as an example , the rules protecting the wounded adopted in 1864 were thus revised in 1906, 1929,1949 and 1977 (critics have therefore accused IHL of being always one war behind reality); Two separate legal currents have, up until 1977, contributed to this development, the Geneva Law, mainly concerned with the protection of the victims and the Hague Law, whose provisions relate to limitations or prohibitions of specific means and methods of warfare6. These two legal currents were merged with the adoption of the two Additional Protocols of 19777. Up until the 1970s, IHL or at least its codified norms has been strongly influenced by western culture and European powers. However, the humanitarian ideas and concepts formalised by IHL treaties are shared by many different schools of thoughts and cultural traditions. This does not however, necessarily negate the universal foundation of IHL. Non-western cultures have also adopted the IHL and have provided proper inputs after the time of 1970s. however, the problem it faces with universal values is probably one of the greatest challenges faced by humanity. The law cannot avoid addressing it. Unfortunately, the question of the universal nature of IHL has prompted little scholarly deliberation, unlike the body of human rights law, whose universal nature has been forcefully called into question-by anthropologists, among others, and particularly since the 1980s. International Humanitarian Law developed at a time when the use of force was a lawful form of international relations, when states where not prohibited to wage war, when they had the right to

Present-day international humanitarian law has grown from two main sources: the Law of Geneva, i.e. a body of rules which protect victims of war, and the Law of The Hague, i.e. those provisions which affect the conduct of hostilities.
7

The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war. Page 6

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make war (i.e. when they had the jus ad bellum)8. There was no logical problem for international law to prescribe them the respect of certain rules of behaviour in war (the jus in bello) if they resorted to that means9. Application of International Humanitarian Law International Humanitarian Law applies in various situations and perspectives like international armed conflicts and non-international conflicts10. On International Armed Conflict This law relating to international armed conflict applies to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them11 The notion of armed conflict has, from 1949 onwards, replaced the traditional notion of war. According to the Commentary to the first Geneva Conventions of 1949, the substitution of this much more general expression (armed Conflict) for the word war was deliberat e. One may argue almost endlessly about the legal definition of war. A state can always pretend, when it commits a hostile act against another state, that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression armed conflict makes such arguments less easy. Any difference arising between two states and leading to the intervention of armed forces is an armed conflict, even if one of the Parties denies the existence of state of war In application of a standard rule on the attribution of unlawful acts of the law of state responsibility, a conflict between governmental forces and rebel forces within a single country becomes of international character if the rebel forces are de facto agents of a third state. In this

Jus ad bellum (Latin for "right to war") is a set of criteria that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; that is, whether it is a just war.
9

Jus in bello The law of war is a body of law concerning acceptable justifications to engage in war (jus ad bellum) and the limits to acceptable wartime conduct (jus in bello or International humanitarian law).
10

``How does law protect in war``, Volume 1, Outline of International Humanitarian Law, ICRC Article 2 (1) common to the conventions Page 7

11

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event, the latters behaviour is attributable to the third state and governed by International Humanitarian Law of International Armed conflicts12. On Non- International armed conflict Traditionally, these conflicts were considered as purely internal matters for states, in which no international law provisions applied. This was subsequently changed with the adoption of Article 3 common to the four Geneva Conventions of 194913. For the first time the society of States agreed on a set of minimal guarantees to be respected during non-international armed conflicts. However, Article 3 has not given a clear definition of notion of non-international armed conflict14. During the diplomatic conference of 1974-1977, the need for a comprehensive definition of the notion of non-international armed conflict was reaffirmed and dealt with accordingly in Article 1 of the Additional Protocol II15. According to that provision, it was agreed that protocol II [shall apply to all armed conflicts not covered by Article 1[..] of protocol I and which take place in the territory of a high contracting party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to carry out sustained and concerted military operations and to implement this protocol It should be noted that this fairly restrictive definition applies only to protocol II. The definition does not apply to Article 3 common to the four Geneva Conventions

12

http://www.jstor.org/discover/10.2307/25657683?uid=307654471&uid=3737496&uid=2129&uid=2&ui d=70&uid=2812208&uid=3&uid=67&uid=62&sid=21101840960647 as on March 01,2013

13

It states certain instances 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, certain provisions. Article 3 merely states that it is applicable in case of armed conflict not of an international character occurring on the territory of one of the High contracting parties[]
14 15

http://www.icrc.org/eng/resources/documents/interview/2012/12-10-niac-non-international-armedconflict.htm as on March 04,2013 Page 8

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Practically, there are thus situations of non-international armed conflicts in which only Article 3 will apply, the level of organization of the dissidents groups being insufficient for protocol II to apply16. Moreover, the statute of International Criminal Court provides an intermediary threshold of application. There is no longer a requirement for the conflict to take place between governmental forces and rebel forces, for the latter to control part of the territory, nor for there to be a responsible command17. Application of International Humanitarian Law in Other Situations IHL is not applicable in situations of internal violence and tensions. This point has been clearly made in Article 1(2) of Additional Protocol II which states this protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflict[..]18. Application on Acts of terrorism Though there is no internationally recognised definition of an act of terrorism, in the context of an armed conflict, it can be considered as an act banned by IHL protecting civilians, which provokes terror among individuals, certain groups or the civilian population as a whole19. Acts of terrorism are prohibited, whether they are committed during armed conflicts, situations of internal violence or in time of peace. These two last situations are not covered by IHL but acts of terrorism are also prohibited by internal and international criminal law20 IHL applies equally to those who commit acts of terrorism(regular armed forces, national liberation movements, resistance movements, dissident armed forces engaged in an internal armed conflict or groups who, as their main action consists of terrorist acts, can be considered as
16

Supra See Case no. 15, the International Court of Criminal Court [A., The Statute, Article 8(2) (f).] p.608

17

18

The notions of internal disturbances and tensions have not been the object of precise definition during 1974-1977 Diplomatic Conference.
19

www.iihl.org/iihl/Documents/Terrorism%20and%20IHL.pdf as on March 04,2013

20

For an exhaustive list of international instruments on terrorism, see the Internet site UN action against terrorism. http://www. Un.org/terrorism Page 9

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terrorist groups) as to their opponents. The war against groups considered as terrorist is therefore submitted to the same rules as any other armed conflict. As International Humanitarian Law developed as law of international armed conflicts in conformity with the traditional function of international law, inter-state relations, it mainly aimed at protecting enemies in the sense of enemy nationals. There are several areas of application including passive application as well as temporal application. International Humanitarian Law starts to apply as soon as an armed conflict arises, e.g., as soon as the first protected person is affected. It protects individuals against the (traditional enemy) State or other belligerent authorities. International Humanitarian Law, however, also corresponds to the traditional structure of International Law in that it governs often by the very same provisions) relations between States. Its treaty rules are therefore, regulated, with some exceptions, by the ordinary rules of law of treaties. In addition, it prescribes rules of behaviour for individuals (who must be punished if they violate them) for benefit of other individuals. Distinction: International Humanitarian Law and International Human Rights Law IHL developed as law of International armed conflicts and was therefore necessarily international law in the traditional sense, an objective legal order governing inter-state relations. Its main objective was always to protect individuals but that protection was not expressed in form of subjective rights of the victims but was a consequence of the rules of behaviour for states and (through them) of individuals. Human Rights have been only recently protected by International law and are still today seen as a matter mainly governed by national law (though not of exclusively domestic concern). They were always seen and formulated as subjective rights of the individual (and, more recently of groups) against the state-mainly their own state. However, both the branches are largely codified. International Humanitarian Law is applicable in armed conflicts only. International Human Rights law is applicable in all situations. All but the non- derogable provisions, the hard core of International Human Rights Law, however, may be suspended, under certain conditions, in situations threatening the life of the nation. As the latter do not only include armed conflicts, the
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complementarity remains imperfect, in particular, a gap exists in situations of internal disturbances and tensions21. While it is an important rule of International Human Rights Law that all human beings equally benefit from these rights, the traditional approach of IHL, consistent with its development as inter-state law, aims mainly at protecting enemies. IHL therefore defines a category of protected persons, consisting basically of enemy nationals, who enjoy its full protection22. Nevertheless, victims of armed conflicts who are not protected persons do not completely lack protection23. In conformity with and under the influence of IHRL, they benefit from a growing number of protective rules, which, however, never offer the full protection foreseen for the protected persons. IHL governs certain relations as between individual and states, states and states and between individual and individual. Whereas, international human rights law governs only relations between Individuals and States. In addition to that International Humanitarian Law regulates some problems which are vital for protection of victims of armed conflicts, but which International Human Rights Law fails to address even implicitly24 Internal Violence and International Humanitarian Law Internal Violence What are situations of internal violence? There is no legal definition about the term internal violence but we sometimes refer to them as internal disturbances or international tensions in order to be able to better identify them. They may take the form of clashes, in the country side or in cities, between security forces and demonstrators, between different groups in the community, between the security forces and armed groups, or between illegal forces. The ICRC has expanded the definition to include all the
21

http://www.icrc.org/eng/resources/documents/misc/57jnzc.htm as on February 25,2013. Ibid. http://www.icrc.org/eng/resources/documents/misc/57jnzc.htm as on March 01,2013.

22

23

24

Thus, article 44 (1)-(3) of protocol-1 on combatant status deals with the question who may use force, an issue not addressed by International Human Rights Law, but which is crucial for protection of civilians. Page 11

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exigencies which may arise in future25. The Humanitarian consequences of internal violence include: death or wounding, including of agents of the state; detention; displacement; disappearances; threats; abuse; destruction of property or homes; slowing off economy and trauma. People are not familiar with the International Humanitarian Law in situations of internal violence and hence they suffer. In cases of internal violence where the provisions of international humanitarian law do not apply, the humanitarian work can be performed by certain initiatives contained in International Red Cross and Red Crescent movement adopted by the International Conference which brings together representatives from components of the movement and the states party to the Geneva Convention every four years26. Many states across the globe have faced internal tension and strife, sometimes so serious as to threaten their fundamental interests. These situations, characterised as they are by acts of revolts and violence committed by more or less organised groups fighting either the authorities or amongst themselves, are distinct from those termed as non-international armed conflicts, in which the violence is more intense. In order to bring these internal confrontations to an end and restore order, the authorities frequently make massive use of police forces or even the armed forces. The inevitable result is a weakening of the rule of law, marked by serious, large-scale human rights violations causing widespread suffering among the population27. It is generally accepted that governments may declare a state of emergency and, provided that the situation so demands (and only then), take steps that depart from international human rights law and suspend some of those rights. There are fundamental rights inherent to human dignity- the so-called inalienable rights from which no derogation is possible under any circumstances. The safeguards provided by those rights to individuals caught in the maelstrom of internal violence appear today to be inadequate. Initiatives are being taken at the international level to furnish better protection

25

http://www.icrc.org/eng/resources/documents/misc/5kzk2z.htm as on March 03,2013

26

http://reliefweb.int/report/world/internal-conflicts-or-other-situations-violence-%E2%80%93-whatdifference-victims as on March 03,2013.

27

David P. Forsythe, The Humanitarians, The International Committee of the Red Cross Page 12

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and make up for the shortcomings of international human rights law in cases of internal violence, in which atrocities continue to be committed28. Sometimes internal tension and strife faced by many states are so serious that even threaten their fundamental interests. They are at high rate and can be committed by more or less organised groups fighting either authorities or amongst themselves. They are distinct from noninternational armed conflict where violence is very intense29. However, in order to bring these situations to an end and restore order, the authorities frequently make massive use of police force or even armed forces. Consequently, there is weakening of rule of law followed by serious largescale human rights violations causing widespread suffering among population. Though it is true that all states have relative freedom in assessing whether a situation presents a danger to the public and whether to declare a state of emergency, this option is nevertheless subject to certain conditions of form and substance. No matter how serious any circumstance is existing which has caused the state to resort to such measures, it nevertheless cannot depart from the fundamental rules called erga omnes30 obligations. Guarantees put upon by national legislations regarding states of emergency The draft articles on state responsibility recently adopted on first reading by the United Nations Commission on Human Rights, a state of emergency can be invoked by a government only if it is the only means of safeguarding on essential interest (..) against a grave and imminent peril . Thus, the seriousness of the situation must be so grave that recourse to emergency legislation becomes inevitable. Such measures must be designed to deal with such crisis situations and must be applied as interim measures. Many research scholars have pointed out that nation states should clearly define in their legislations the acts which amount to internal violence and conflicts of grave nature leading to
28

David Rieff, Humanitarianism in Crisis, A bed for the Night Ibid.

29

30

Erga omnes is a Latin phrase which literally means "towards all" or "towards everyone". In legal terminology, erga omnes rights or obligations are owed toward all. For instance a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right. An erga omnes right (a statutory right) can here be distinguished from a right based on contract, which is only enforceable against the contracting party. Page 13

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declaration of national emergency. Also the states should make this fact known to neighbouring states that such national emergency has been declared. This obligation to notify other states is obviously intended to avoid establishment of de facto states of emergency. It also requires the state to notify as soon as possible the other states the causes of emergency and the deviations from the erna omnes obligations if any. The United Nations Human Rights Commission also recognises the indispensable requirement of suitable national legislations to deal with emergencies while respecting rule of law. It invites the states to re-examine their legislation in order to ensure protection of rule of law and other obligations31. Ensuring greater protection for people caught up in internal violence The guarantees afforded by the fundamental rules by states appear to be insufficient and incomplete in light of the fact that they fail to cover all situations arising from internal tension. Thus, to deal with situations and to cover all the all the areas of internal violence in a comprehensive manner initiatives are being taken to encourage international community to adopt a text inspired by International Humanitarian Law i.e. one that solemnly affirms the fundamental rights of the individual in periods of internal violence and strife32. Relevancy of International Humanitarian Law in situations of ``Internal Violence``33 The fundamental rules applicable in times of internal tension do not cover all the cases of serious violations of humanitarian principles that frequently occur in these types of situations. A largescale sufferings are caused by mass arrests and suspension of judicial safeguards 34. The authorities facing internal tensions and strife generally invoke security considerations as grounds for arresting selected individuals from political circles, the labour movement and the media. The periods of administrative detention are unduly extended and the detainees unfortunately are

31

http://www.crimesofwar.org/a-z-guide/gray-areas-in-international-humanitarian-law/ visited as on March 05,2013.

32

http://www.icrc.org/eng/resources/documents/misc/5kzk2z.htm

33

Article by Djamchid Momtaz. He is a professor at the Faculty of Law and Political Science of the University of Tehran.
34

Frits Kalshoven, Assisting the Victims of Armed Conflict and Other Disasters. Page 14

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sometimes ill-treated. In most of the cases authorities do not even announce their arrest. The aim is to intimidate the population and people35. The first United Nations Congress on the prevention of crime and the treatment of offenders adopted a standard minimum rules for the treatment of prisoners on 30 August 1955. It laid down certain rules for dealing with arbitrary arrest and extra judicial detentions to improve conditions of detainees. The purpose was to provide a well-ordered penal arrangement so as to preserve the human dignity of the detainee. They were updated by the UN general assembly in a resolution entitled Body of principles for the protection of all persons under any form of detention or imprisonment These are applicable without any distinction founded on race, color , sex, language etc. Further, irregularities in penal procedures are common in periods of internal strife. Irregularities in penal procedure are common in periods of internal strife. The rights enshrined in the law- of every detainee to receive a fair and public hearing before an independent and impartial court is often ignored. These are restrictions on the rights of defence 36. There are certain other flaws which are done by the governments of every state. Both the International Covenant on civil and political rights and regional treaties for protection of Human Rights contain provisions ensuring the fundamental rights of detainees during detentions and during court proceedings37. Widening scope of International Humanitarian Law to include Internal Violence During a diplomatic conference called to adopt the new Geneva conventions in 1949, the question was raised whether certain rules of International Humanitarian Law should be broadened to include internal violence too. The discussions led to the fact that there was lack of any precise definition which gave rise to conflicts among many members. They feared that its field of application might extend to any act of force, including any form of anarchy or rebellion. The conferences refusal to list conditions for Article 3s application enabled the International Committee of Red Cross to declare itself in favor of the widest possible application. The commentary on Article 3 published by the ICRC insists that such an interpretation in no way
35

http://www.un.org/rights/HRToday/hrconfl.htm visited as on March 04,2013 http://www.geneva-academy.ch/ visited as on March 04,2013 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2065974 visited as on March 04,2013 Page 15

36

37

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limits the States right to exercise repression and in no way increases the power of rebel groups. The ICRC took this view in keeping with its role of intermediary which it has played since 1921 in connection with internal violence, with aim of preserving human dignity and preventing the fundamental rights of the individual from being violated. Article 3 lays down rules described by the ICJ as general principles of humanitarian law They are apt to improve protection of people caught up in internal tension: apart from the safeguards afforded by the principle of inalienability, which are enshrined in the instruments of international Human rights law, this article prohibits the passing of sentences and the carrying out of executions without due process of law. Since then several drafts have been prepared. The provisions of Article 75 of Protocol I additional to the Geneva Conventions to strengthen protection for persons affected by internal violence by providing them with, among other things, additional guarantees while in detention and on trial. The declaration drafted in 1984 by Theodor Meron should be cited in particular. Meron hoped that his declaration would lead in time to adoption of a new instrument codifying a body of rules applicable in this type of situations. This is also the approach of th draft adopted in 1987 by the Norwegian Human Rights Institute and that drawn up in 1990 by the institute for Human Rights at the University of Turku/Abo, in Finland, entitled: Declaration of minimum humanitarian standards. For his part, Hans-Peter Gasser, editor-in-chief of the International Review of Red Cross, would prefer having a code of conduct to serve as a reminder of the existing rules binding on the parties involved in situations of internal strife38. In the Moscow Declaration of 1991, they renounced their right to depart from human rights guarantees recognized by the legal instruments to which they are party. Then, at the Budapest summit in 1994, they stressed the importance of a declaration setting out the minimum standards applicable in all situations. Such a declaration, which they propose to have adopted in the UN framework, will take account of the relevant rules of international human rights law and international humanitarian law39.

38

http://www.jstor.org/discover/10.2307/25657683?uid=307654471&uid=3737496&uid=2129&uid=2&ui d=70&uid=2812208&uid=3&uid=67&uid=62&sid=21101840960647 visited as on March 05,2013.

39

Md. Jahid Hossain Bhuiyan, Prof Louise Doswald Beck & Prof. Azizur Rahman Chowdhury, International Humanitarian Law - An Anthology Page 16

Internal Violence and International Humanitarian Law

CONCLUSION Though the International Humanitarian Law and its application is confined only to a few areas of conflicts, its scope and its application has widened in recent years. This has led international community to rethink on the question of its application in situations of internal violence. The internal violence is independent from any application of international humanitarian law in global perspective but there is a need to re-look at this stance and widen its ambit to include the situations of internal violence too. This will not only help to deal with the situation but such application of International Humanitarian law on internal violence will surely enhance and enrich the fundamental rights of individuals which are violated by the governments. International Humanitarian law would also help to ensure that governments must adhere to their obligations towards its citizens. In recent years the International Humanitarian Law has enlarged its scope of application and now includes even various treaties that outlaw specific weapons of war. These conventions were largely developed because the weapons caused deaths and injuries long after conflicts have ended. An estimated 98% of the victims are civilians including farmers tilling their fields and children who find these explosives and become common victims40. For these reasons, the following conventions were adopted. Recently, a conference organised by International Committee of Red Cross in Belgium also analysed this issue. The conference was held at Brussels, called as the 13th Bruges colloquium, held on October 18 and October 19, 2012 invited researchers, university professors and experts from governments and international organizations to discuss the need for expanding the scope of application of International Humanitarian law in contemporary conflicts41. They considered challenges relating to the scope of application of international humanitarian law. The constant development and increasing complexity that have characterized forms of conflict since the beginning of the 21st century raise many questions about the current scope of application of international humanitarian law. They discussed the need to develop a comprehensive understanding with regards to application of international humanitarian law in changing times.
40

http://www.icrc.org/eng/resources/documents/news-release/2012/belgium-news-2012-10-18.htm as on March 06,2013.

41

Ibid. Page 17

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BIBLIOGRAPHY

Primary Source
Md. Jahid Hossain Bhuiyan, Prof Louise Doswald Beck & Prof. Azizur Rahman Chowdhury, International Humanitarian Law - An Anthology

Article by Djamchid Momtaz. He is a professor at the Faculty of Law and Political Science of the University of Tehran.

Frits Kalshoven, Assisting the Victims of Armed Conflict and Other Disasters.

``How does law protect in war``, Volume 1, Outline of International Humanitarian Law, ICRC

David P. Forsythe, The Humanitarians, The International Committee of the Red Cross

David Rieff, Humanitarianism in Crisis, A bed for the Night

Secondary Sources
http://www.un.org/apps/news/story.asp?NewsID=43368&Cr=idps&Cr1= March 04,2013 as visited on

http://shr.aaas.org/guatemala/ceh/report/english/conc2.html as visited on March 05,2013

http://www.icrc.org/eng/resources/documents/news-release/2012/belgium-news-2012-1018.htm as on March 06,2013.

http://www.crimesofwar.org/a-z-guide/gray-areas-in-international-humanitarian-law/ visited as on March 05,2013.

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http://www.icrc.org/eng/resources/documents/misc/5kzk2z.htm visited as on March 05,2013

http://www.un.org/apps/news/story.asp?NewsID=43368&Cr=idps&Cr1= March 04,2013

as visited on

http://www.jstor.org/discover/10.2307/25657683?uid=307654471&uid=3737496&uid=2 129&uid=2&uid=70&uid=2812208&uid=3&uid=67&uid=62&sid=21101840960647 visited as on March 05,2013.

www.iihl.org/iihl/Documents/Terrorism%20and%20IHL.pdf as on March 04,2013

http://www.icrc.org/eng/resources/documents/interview/2012/12-10-niac-noninternational-armed-conflict.htm as on March 04,2013

http://www.icrc.org/eng/war-and-law/index.jsp as visited on March 02, 2013

http://www.icrc.org/eng/resources/documents/interview/2012/12-10-niac-noninternational-armed-conflict.htm as on March 04,2013

http://www.jstor.org/discover/10.2307/25657683?uid=307654471&uid=3737496&uid=2 129&uid=2&uid=70&uid=2812208&uid=3&uid=67&uid=62&sid=21101840960647 as on March 01,2013

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