GENDER HUMAN RIGHTS AND INTERNATIONAL LAW WHAT IS INTERNATIONAL by danman21

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									                                                     What is International Humanitarian Law?   2


      GENDER, HUMAN RIGHTS, AND INTERNATIONAL LAW
         WHAT IS INTERNATIONAL HUMANITARIAN LAW?
         WHAT IS INTERNATIONAL HUMAN RIGHTS LAW?

HAND-OUT 1

Humanitarian law and human rights law are two separate but complementary branches of
public international law. They also share a common goal: to protect human beings.

WHAT IS INTERNATIONAL HUMANITARIAN LAW?

Humanitarian law safeguards a subset of human rights from which States cannot derogate
even in the extreme case of armed conflict.

International humanitarian law has two main objectives:

    1. It seeks to protect people in time of war who are not, or are no longer,
       participating in the hostilities;

    2. It seeks to limit the means and methods of warfare.

The main instruments of international humanitarian law, which is also known as "law of
war" or "law of armed conflict", are the four Geneva Conventions of 1949 and their 2
Additional Protocols of 1977. The first Geneva Convention relates to the protection of the
wounded and the sick in armed forces in the field; the second to the wounded and the sick
in armed forces at sea; the third to prisoners of war; and the fourth to civilians. Additional
Protocol I applies to international armed conflicts, and Additional Protocol II applies to
non-international armed conflicts.

Virtually every State is party to the Geneva conventions of 1949 and the tendency
towards universal acceptance of the Additional Protocols has increased; as of 31 March
1995, 137 States were party to Protocol I and 127 were party to Protocol II.

WHEN DOES IHL APPLY?1

    IHL applies during: (i) international armed conflicts, i.e., conflicts that occur across
    borders; (ii) non-international armed conflicts such as civil war, i.e. conflicts that take
    place within the state’s borders.

With the exception of one article - Article 3 - common to all four conventions (hence
referred to as “Common Article 3”), the four Geneva Conventions apply to international

1
 SOURCE: ICRC, ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN
LAW, WHAT IS INTERNATIONAL HUMANITARIAN LAW?, GENEVA, ICRC.


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armed conflict. Additional Protocol I applies to international armed conflicts, and
Additional Protocol II applies to non-international armed conflicts, that is to all armed
conflicts not covered by Protocol I in the territory of a High Contracting Party between
its armed forces and dissident armed forces or organised armed groups which exercise
control over a part of its territory.

Common Article 3 (CA3) of the Geneva Convention applies to armed conflict not of an
international character occurring in the territory of one of the High Contracting Parties. It
expressly prohibits at any time and in any place: (i) violence to life and person; (ii) taking
of hostages; (iii) outrages upon personal dignity, in particular humiliating and degrading
treatment; (iv) the passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court.

Both IHL and HR are applicable in international armed conflicts and may both apply
simultaneously. Therefore it is important to remember that there are:

     •     Non-derogable human rights: In general, human rights law is applicable at all
           times although derogation to some civil and political rights during state of public
           emergency is allowed under specific and restrictive conditions provided for in the
           ICCPR. Other rights, such as the right to life, freedom from torture, freedom of
           religion cannot be derogated from under any circumstances.

     •     Specific rights and duties that arise in cases of armed conflicts and that are set
           out in the Geneva Conventions and their two additional Protocols.

The following crimes are crimes that are prohibited and fall under the jurisdiction of the
International Criminal Court (The ICC Statute will enter into force with 60 ratifications.
This is expected to happen in 2002):

     •     Genocide. The crime of genocide is define as any of the following acts, when
           committed with the intent to destroy, in whole or in part, a national, ethnical,
           racial, or religious group: killing members of the group; causing severe bodily or
           mental harm to members of the group; deliberately inflicting on the group
           conditions of life calculated to bring about its physical destruction in whole or in
           part; imposing measures intended to prevent births within the group; or forcibly
           transferring children of the group to another group.Genocide is an international
           crime that is prohibited in all armed conflicts as well as in time of peace.
           Genocide crimes can be prosecuted by any State on the basis of universal
           jurisdiction. Acts of genocide may be considered as a war crime, crimes against
           humanity, or both.

     •     Crimes against Humanity. Crimes against humanity are generally recognised as
           inhumane acts of a very serious nature that:




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        -   Take place during peace or war;

        -   involve widespread (multiple victims) or systematic (that follows
            preconceived plans) attack rather than an isolated criminal act;

        -   are directed against a civilian population (part or whole civilian population);
            and

        -   committed by government or non-state actors (any organisation or group).

        Crimes against humanity have been recognised to be of universal jurisdiction,
        which means that every nation is enabled to pursue and bring the perpetrators to
        justice.


    •   War Crimes. War crimes are serious violations of laws and customs applicable in
        international and non-international armed conflicts. War crimes include grave
        breaches of IHL as well as other serious violations. The main distinction between
        grave breaches and other war crimes is that every nation has the obligation to
        bring perpetrators of grave breaches of IHL to justice.

    •   Grave Breach of the Geneva Conventions: You may often hear lawyers, judges,
        or activists talk about “grave breaches”. Grave breaches are considered as
        egregious violations of international humanitarian law. They include: wilful
        killings, torture, or inhuman treatment, wilfully causing great suffering or serious
        injury to body or health; unlawful deportation or transfer, or unlawful
        confinement; taking of hostages; extensive destruction and appropriation of
        properties; forced conscription in the forces of a hostile power. Grave breaches as
        well as other serious violations are described and listed in all four Geneva
        Conventions as well as in the ICC statute.


WHAT IS INTERNATIONAL HUMAN RIGHTS LAW?2

International human rights law is composed of international and regional instruments that
may take the form of declarations, treaties, protocols and other instruments. Altogether,
they provide an always-developing legal framework for the worldwide protection and
promotion of human rights.

The fundamental principles enshrined in the Universal Declaration of Human Rights are
given a more precise legal form in two covenants: the International Covenant on Civil
and Political Rights, and the International Covenant on Economic, Social and Cultural
Rights. These three instruments are known as the International Bill of Human Rights.


2
 MAIN SOURCE: AMNESTY INTERNATIONAL, HANDBOOK, (AI INDEX: ORG
20/02/92)


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The provisions of the Covenants are binding on States Party which have ratified the
instruments.

Subsequently, Conventions were developed to complement the International Bill of
Human Rights. They include: the International Convention on the Elimination of All
Forms of Racial Discrimination (CERD); the Convention on the Elimination of all Forms
of Discrimination against Women (CEDAW); the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT); as well as the Convention
on the Rights of the Child (CRC).

In addition, Standards have also been developed. For instance, the United Nations
Standard Minimum Rules for the treatment of Prisoners lays down 95 provisions
covering fundamental requirements for the proper treatment of prisoners. They cover
such issues as the availability of medical services, regulations for disciplines and
punishment, complaint procedures, etc.

Some of these standards are intended to protect all people from human rights abuses such
as discrimination, genocide, torture and slavery. Others are meant to safeguard members
of specific groups whose human rights are often violated: stateless persons, refugees,
prisoners, workers, children, and women.

A state is bound by the standards found in the instruments it has ratified. Some
international human rights instruments, however, have become part of customary
international law and as such are binding on all States, whether they have ratified the
instruments or not.

Mechanisms have been established to monitor the implementation of the six main human
rights treaties (ICCPR, ICESCR and the four conventions mentioned above). For each of
them, monitoring bodies have been established. For example, the Human Rights
Committee was created to monitor the International Covenant on Civil and Political
Rights, and the Committee against Torture monitors the Convention against Torture. In
addition to overseeing implementation, three of these monitoring bodies also handle
individual complaint mechanisms (ICCPR, CAT and CERD). Every year, thousands of
complaints of human rights abuses reach the United Nations. It should be noted that in
order for individuals from a particular state to be able to use these mechanisms, their state
must have specifically accepted the jurisdiction of the monitoring bodies - this is not the
case for all States Parties.

The UN Office of the High Commissioner for Human Rights (UNHCHR) is the main
United Nations body responsible for the promotion of human rights. Its mandate derives
from the Charter of the United Nations and the Vienna Declaration and is defined as
follow: “ to ensure the universal enjoyment of all human rights by giving practical effect
to the will and resolve of the world community as expressed by the United Nations”.
Among other tasks, it coordinates human rights activities throughout the UN system,
responds to serious violations of human rights and undertakes field activities and




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operations, as well as education and technical assistance programmes in the field of
human rights. Its representatives may often be present in post-conflict areas (e.g., East
Timor, Bosnia, etc.).


WHAT ARE WOMEN'S HUMAN RIGHTS?3

While human rights instruments provide for the rights of both men and women, some
specific provisions aimed at the particular needs of women have been developed.
Women’s human rights are spelled out in a large number of international legal texts, such
as:
    • the Universal Declaration of Human Rights (1948);
    • the International Covenant on Civil and Political Rights (1966);
    • the International Covenant on Economic, Social and Cultural Rights (1966);
    • the Convention on the Elimination of All Forms of Discrimination against
        Women (1979);
    • the Geneva Conventions (1949) and the Two Additional Protocols (1977);
    • the Rome Statute of the International Criminal Court (1998).

While these documents may not be signed or ratified by every State, they provide an
essential framework to monitor and protect women's human rights.

The 1945 Charter of the United Nations recognises the equal rights of men and women:

        “The People of the United Nations determine to reaffirm faith in fundamental
        human rights, in the dignity and worth of the human person, in the equal rights of
        men and women...”

The principle of equality of rights for women has been enshrined in international law
since the Universal Declaration on Human Rights. For instance, the International
Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights,
both adopted by the General Assembly in 1966, included articles providing for the equal
enjoyment by men and women to the rights set out in the Covenants.

In addition to the human rights instruments described previously and which apply to
everyone, the international community also sought to develop instruments that would
specifically safeguard women’s human rights.

In 1979 the UN General Assembly adopted the Convention on the Elimination of All
Forms of Discrimination against Women, which in its article 1 defines discrimination
as: “any distinction, exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or exercise by women,


        3
        Main source: Amnesty International, 1998: A Wonderful Year for
Women’s Human Rights, AI Index IOR 40/12/97



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irrespective of their marital status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic, social, cultural, civil or any
other field”.

The CEDAW is the central and most comprehensive instrument to promote and protect
women’s human rights. Since then, other instruments have been adopted such as:

     •     Declaration on the Elimination of Violence against Women (1993)
     •     The Beijing Declaration and Platform for Action (1995)
     •     Optional Protocol to CEDAW, (1999)

The series of global conferences and other developments in the UN in the first part of the
1990s had a catalytic effect on the international community's awareness of the human
rights of women and saw bold commitments to taking action to promote and protect
them. The UN World Conference on Human Rights, held in Vienna, Austria in June 1993
and the Fourth UN World Conference on Women held in Beijing, China in September
1995 were key but others, particularly the UN International Conference on Population
and Development, held in Cairo in September 1994, and the UN World Summit for
Social Development, held in Copenhagen, Denmark in March 1995, played important
roles in this process.

Women's organisations came to the World Conference on Human Rights, for which the
Commission on Human Rights was the preparatory body, to assert that women's rights
are human rights. It was among the highest achievements of the conference that this
message was acknowledged. The Vienna Declaration and Programme of Action, the final
document of the World Conference on Human Rights, asserted that the human rights of
women are an inalienable, integral and indivisible part of universal human rights. It urged
that the full and equal enjoyment by women of all human rights should be a priority for
governments and the UN. It stated that the equal status and human rights of women
should be integrated into the mainstream of UN system-wide activities. In particular, the
World Conference stressed the importance of working towards the elimination of
violence against women in public and private life - thus extending international concern
and state accountability for violence against women in both the public and private
spheres.

This momentum was reinforced by the adoption by the UN General Assembly in
December 1993 of the Declaration on the Elimination of Violence against Women, and
the appointment the following March by the Commission on Human Rights of a Special
Rapporteur on Violence against Women.

The Declaration on the Elimination of Violence against Women defines violence against
women as: “any act of gender-based violence that results in, or is likely to result in,
physical, sexual, or psychological harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private




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life”. The Preamble to the Declaration on the Elimination of Violence against Women
also identifies groups of women who are especially vulnerable to violence, including
women in situation of armed conflicts.

The mandate of the UN Special Rapporteur on violence against women includes:
seeking and receiving information on violence against women, its causes and its
consequences; making recommendations at the national, regional and international levels,
to eliminate violence against women and its causes, and to remedy its consequences; and
to support other UN mechanisms to consider violence against women in their work. In
1998, the Special Rapporteur released a report which investigated violence against
women in situations of armed conflict which contained a series of recommendations
including gender awareness training for peace support operations personnel.

In Beijing, the assembled governments incorporated women's rights are human rights as
Article 14 of the Beijing Declaration, which with the Platform for Action, constitutes the
final document of the Fourth UN World Conference on Women. The Beijing Declaration
and Platform for Action represents an important step forward by governments towards
acknowledging the reality of human rights violations against women and girls and state
accountability for those violations.4

In particular, the Beijing Declaration and Platform for Action states:

        “Violence against women is a manifestation of the historically unequal power
        relations between men and women, which have led to domination over and
        discrimination against women by men and to the prevention of women's full
        advancement. Violence against women throughout the life cycle derives
        essentially from cultural patterns, in particular the harmful effects of certain
        traditional or customary practices and all acts of extremism linked to race, sex,
        language or religion that perpetrate the lower status accorded to women in the
        family, the workplace, the community and society. Violence against women is
        exacerbated by social pressures, notably the shame of denouncing certain acts that
        have been perpetrated against women; women's lack of access to legal
        information, aid or protection; the lack of laws that effectively prohibit violence
        against women; failure to reform existing laws; inadequate efforts on the part of
        public authorities to promote awareness of and enforce existing laws; and the
        absence of educational and other means to address the causes and consequences
        of violence.”5

Four years after the Beijing Conference, UN General Assembly adopted an Optional
Protocol to CEDAW. The Optional Protocol requires ratification by ten States before it
enters into force. Once this is accomplished, individuals and groups of women will have
        4
         See Women's Rights are Human Rights: Commitments made by
Governments in the Beijing Declaration and the Platform for Action (AI
Index IOR 41/05/96) for Amnesty International's evaluation of the final
document.
            5
                Paragraph 118


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the right of petition. This will give women complaint procedures that have been
enshrined under the ICCPR for a number of years. They will be able to take their
complaints and grievances to the United Nations directly under the CEDAW if they are
not able to obtain remedies within their own countries or local judicial systems.


HOW DO IHL AND HUMAN RIGHTS LAW DIFFER?

While IHL and HR are two separate but complementary branches of public international
law, they do share a common goal: to protect human beings. However they do protect
human beings in different circumstances and in different ways.

IHL applies in situation of armed conflicts whereas human rights apply in time of peace
and some of them, non-derogable rights, in time of peace and war.

IHL seeks to protect victims of armed conflicts and limits the means and methods of
warfare whereas human rights seek to protect individual and further its development.

The obligations of parties to a conflict under IHL are very specific and detailed.

Some of the rules of IHL and human rights law are similar, for example:

       •   non-discrimination: one of the fundamental principles of international human
           rights law is also a key concept of the Geneva Conventions;
       •   the right to life: IHL invokes the right to life as far as possible during
           hostilities and prohibits murder or arbitrary executions of persons in the power
           of an authority (although collateral damage is tolerated);
       •   both IHL and human rights law prohibit torture in all circumstances.




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A SUMMARY OF SOME RULES OF CONDUCT6

The provisions of the Geneva Conventions of 12 August 1949 and Additional Protocols I
and II of 1977 are very specific. The following is a summary of certain important rules of
conduct, which apply to all armed conflicts:

•   people who are not or are no longer, taking an active part in hostilities, such as the
    wounded and sick, prisoners and civilians, must be respected and protected in all
    circumstances;

•   Non-combatants must be treated humanely; in particular, violence to their life and
    person is prohibited, as are all kinds of torture and cruel treatment, the taking of
    hostages, and the passing of sentences without a fair trial;

•   outrages upon personal dignity, such as humiliating and degrading treatment, rape,
    enforced prostitution or any form of indecent assault are prohibited;

•   the armed forces must always distinguish between civilians and combatants, and
    between civilian objects and military objectives. It is prohibited to attack civilians and
    civilians objects, and all precautions must be taken to spare the civilian population;

•   it is prohibited to attack or destroy objects indispensable to the survival of the civilian
    population (e.g. foodstuffs, crops, livestock, drinking, water installations and
    irrigation works); it is prohibited to use starvation as a method of warfare;

•   the wounded and the sick must be collected and cared for; hospitals, ambulances, and
    medical and religious personnel must be respected and protected; the emblem of the
    red cross or red crescent, which symbolises this protection, must be respected in all
    circumstances; any abuse of misuse thereof must be punished;

•   parties to a conflict must agree to relief operations of a humanitarian, impartial and
    non-discriminatory nature on behalf of the civilian population; aid agency personnel
    must be respected and protected.




6
 EXTRACT FROM: JEAN-PHILIPPE LAVOYER, REFUGEES AND INTERNALLY
DISPLACED PERSONS: INTERNATIONAL HUMANITARIAN LAW AND THE ROLE
OF THE ICRC IN INTERNATIONAL REVIEW OF THE RED CROSS, MARCH-
APRIL 1995, GENEVA, P.164. FOUNDED IN 1863, THE ICRC HAS BEEN
MANDATED BY THE COMMUNITY OF STATES, UNDER THE GENEVA
CONVENTIONS TO WORK FOR THE FAITHFUL APPLICATION OF
INTERNATIONAL HUMANITARIAN LAW.




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