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Commentary - Part II : Humane treatment
    [p.1365] Part II -- Humane treatment


    Introduction

    4507 This Part is aimed at protecting persons who do not, or no longer, participate in hostilities against abuses of power and against inhuman and cruel treatment which may be inflicted upon them by the military or civilian authorities into whose hands they have fallen. (1) As the Protocol does not provide for different categories of persons who enjoy a special status, such as prisoners of war in international armed conflicts, the rules laid down here apply equally to all persons affected (2) by the armed conflict who are in the power of the enemy (the wounded and sick, persons deprived of their liberty, or whose liberty has been restricted), whether they are military or civilians.

    4508 Such rules are already contained, implicitly or explicitly, in common Article 3 ; they are developed and supplemented in the Protocol. These are inalienable (3) and fundamental rights, inherent in the respect due to the human person: guarantees of humane treatment (Article 4 -- ' Fundamental guarantees '), minimum standards during detention (Article 5 -- ' Persons whose liberty has been restricted ') and judicial guarantees (Article 6 -- ' Penal prosecutions ').

    4509 The above-mentioned articles bear the mark of international human rights law. In fact the ICRC, in drawing up its draft articles, and subsequently the Conference, were inspired by the Covenant on Civil and Political Rights.

    4510 These fundamental guarantees constitute a minimum standard of protection which anyone can claim at any time, and they underlie the whole system of human rights. As the Protocol has its own field of application, it was important that it should include these guarantees, properly adapted and supplemented to match the circumstances for which the Protocol is intended.

    4511 This Part contains virtually all the irreducible rights of the Covenant, i.e., those from which there is no possibility of derogation, even in time of public emergency threatening the life of the nation. (4) It also reiterates the judicial guarantees which are not part of that minimum protection, but which are of particular importance in situations of armed conflict; it was therefore all the more important to include [p.1366] these in the Protocol. They include the presumption of innocence, the right of the accused to be present at his trial, and the principle that no one can be compelled to testify against himself (Article 6 -- ' Penal prosecutions, ' paragraph 2(d), (e) and (f)). Thus there is some homogeneity as to
    both form and substance between these fundamental rules of protection in the Protocol and in the Covenant.

    4512 During the debates in the Diplomatic Conference a great many delegates systematically referred to the corresponding rules of the Covenant which they wanted to include in the Protocol as they were. This concern met the desire to establish guarantees at least equivalent to those granted by human rights instruments, so as not to be out of line. It played an important part with regard to the form and substance of Part II. It was responsible for bringing about a degree of uniformity between international rules of protection which impose limitations on national legal systems.

    4513 In addition, human rights and humanitarian law, which are separate legal systems each with its own field of application and mechanisms, exist concurrently. (5) This uniformity and convergence serve to reinforce the protection of the human person.

    4514 Finally, it should be noted that the same non-derogable core of rights contained in this Part is also contained in Article 75 of Protocol I ' (Fundamental guarantees). ' All persons who do not benefit from more favourable treatment under the Conventions or that Protocol enjoy the protection of that article.

    ' S.J. '


    * (1) [(1) p.1365] These may be ' de jure ' or ' de facto ' authorities;

    (2) [(2) p.1365] See commentary Art. 2, para. 1, supra, p. 1359;

    (3) [(3) p.1365] The term "inalienable" means not only that the rights cannot be taken away, but also that they cannot be renounced. See ' Commentary I, ' pp. 77-85 (Art. 7);

    (4) [(4) p.1365] Covenant, Art. 4, para. 1;

    (5) [(5) p.1366] See Resolution 2675 (XXV) of the United Nations General Assembly. See also the commentary on the second paragraph of the Preamble, supra, p. 1339. Such concurrent application is of course a factor which has to be taken into account to the extent States are bound by the various instruments;