American States: protection of persons in situations of internal disturbances and tensions
Address by the ICRC at the special meeting of the Committee on Juridical and Political Affairs of the Organization of American States on current issues in international humanitarian law, Washington, D.C., 2 February 2006
Ladies and gentlemen,
Before I begin, on behalf of the International Committee of the Red Cross, I would like to sincerely thank the Committee on Juridical and Political Affairs for having called this special meeting on current issues in international humanitarian law.
These meetings on international humanitarian law have provided a privileged forum for exchange among the American States and the ICRC since the Organization of American States (OAS) launched the initiative in 1999. They complement the ongoing bilateral dialogue that the ICRC maintains with the OAS and all the Western Hemisphere governments in a very constructive way, mainly through its delegations and offices in Bogotá, Brasilia, Buenos Aires, Caracas, Guatemala, Lima, Mexico City, Port-au-Prince, Port of Spain, San José and Washington.
The purpose of this dialogue, while simple in itself, is, perhaps today more than ever, very difficult to achieve,. For the ICRC, the aim is, in a nutshell, to protect the life, integrity and dignity of victims of armed conflicts and other situations of violence. These other situations of violence include internal disturbances and tensions, the subject that this panel has very opportunely met to discuss.
A few weeks ago, the World Bank published the World Development Report 2006, which focuses on the problem of inequality. According to this report, the Latin American and Caribbean region has the highest levels of inequality after Africa. It is evident that the region continues to be plagued by serious economic and social problem s that threaten political stability and hinder growth in most of the States, giving rise to social exclusion, manifested in rising crime rates, often connected with drug trafficking, social unrest and high rates of migration. In many, if not all of these countries, there are tensions and sporadic internal disturbances that seem to gradually spread and sometimes lead to situations that are worrying from a humanitarian perspective.
This is a growing cause of concern for the ICRC in Latin America and the Caribbean. In recent years, the ICRC has observed patterns of violence that reoccur in disturbances and tensions affecting the region and often have serious humanitarian consequences and a high political price.
There are various factors that influence the degree of violence occurring in a given situation. Some offer very little leeway for an organization such as the Red Cross to take effective action to prevent the suffering that such violence causes. Security conditions may prevent access to victims. The capacity of the ICRC to implement programmes to prevent violence in mainly urban areas in places like Brazil, El Salvador, Guatemala, Honduras, Jamaica or Haiti is limited. While by no means indifferent to the humanitarian needs of people affected by this type of violence, the ICRC is aware that the limitations on action in such situations probably require a much more integrated and comprehensive approach than it is able to adopt within the bounds of its mandate.
Other factors do allow a strategic approach with a focus on prevention in situations when it seems that action taken by the Red Cross – and the ICRC in particular – is likely to produce concrete results. This mainly depends on the authorities or rather the options that they have to limit the violence and protect human life, integrity and dignity in accordance with international law.
The provisions of international law that protect people in situations of int ernal tensions and disturbances would seem to be weak and toothless. These shortcomings are largely due to the distinction made between such situations and armed conflicts, on the one hand, and the lack of a system specifically designed to protect people during disturbances and tensions, on the other.
There is no specific legal definition of internal disturbances and tensions; they are terms used in international humanitarian law treaties to distinguish this type of situation from armed conflict.
They are used in this way in article 1(2) of Additional Protocol II of 1977, article 1(2) of Protocol II (as amended in 1996) annexed to the Convention on prohibitions or restrictions on the use of certain conventional weapons of 1980, paragraph 2 of the amendment to article 1 of the Convention on the use of certain conventional weapons of 1980, article 22(2) of the Second Protocol of 1999 to the Hague convention of 1954 for the protection of cultural property, and points (d) and (f) of article 8(2) of the Statute of Rome of 1998.
These provisions delimit the scope of application of international humanitarian law, specifying that the rules of this body of law do not apply in situations of internal disturbances and tensions.
Disturbances are typically acts of public disorder, accompanied by acts of violence. In the case of internal tensions, there may be no violence, but the State resorts to practices such as mass arrests of opponents and the suspension of certain human rights, often intended precisely to prevent the situation from degenerating into a disturbance.
Both situations differ from armed conflict, and while there is obviously no problem in distinguishing such situations from international armed conflict, difficulties arise when it is necessary to make a distinction between such situations and internal armed conflict.
In internal armed conflict, armed forces or groups engage in open hostilities that go beyond isolated or sporadic acts of violence. A situation qualifies as armed conflict when the violence reaches a certain level of intensity. The parties to the conflict can be said to be engaged in hostilities when they have a minimum level of organization, without which they would be unable to carry out concerted operations, which generally have a specific purpose.
Disturbances can involve a high level of violence, and even the non-State party may be fairly well organized. The line separating disturbances and tensions from armed conflict can sometimes be blurred, and the only way to categorize specific situations is by examining each individual case. The intensity of the violence is the determining factor.
Categorizing a situation is much more than just a theoretical exercise; it has direct consequences for the victims of the violence, because it determines which rules apply, and the protection they provide is established in greater or lesser detail according to whether the situation is categorized as a disturbance or an armed conflict. Experience shows that the greater the level of detail specified in provisions providing protection, the more likely they are to be observed.
When a situation qualifies as an armed conflict, international humanitarian law applies. In the case of non-international armed conflict, it is Article 3 common to the Geneva Conventions of 1949 that establishes limits on the conduct of the parties to the conflict.
This provision grants protection against violence and arbitrary acts to people who take no active part, or have ceased to take part, in the hostilities, including members of State armed forces. It ensures that the sick and wounded are collected and cared for, without discrimination. It also provides that the work carried out by humanitarian organizations, particularly the ICRC, to help the victims must be facilitated.
Common Article 3 also establishes the obligation of the parties to the conflict to do everything in their power to ensure that other provisions of international humanitarian law are applied, particularly provisions relating to international armed conflict, which, in general, have been developed in much greater detail.
It should be noted that the rules on non-international armed conflicts were elaborated on and complemented in Additional Protocol II of 1977, and there is a growing number of treaties with provisions relating to both international and non-international armed conflicts. Such rules can be found in article 1(2) of Additional Protocol II of 1977, article 1(2) of Protocol II (as amended in 1996) annexed to the Convention on prohibitions or restrictions on the use of certain conventional weapons of 1980, paragraph 2 of the amendment to article 1 of the Convention on the use of certain conventional weapons of 1980 and article 22(2) of the Second Protocol of 1999 to the Hague convention of 1954 for the protection of cultural property.
The enforceability of these rules is supported by international criminal law. In principle, grave breaches of common Article 3 constitute war crimes. Specifically, article 8(2)(c) of the Rome Statute of 1998 identifies four war crimes, which are violations of common Article 3, to which it adds 12 more crimes in paragraph 2(e), consisting of other serious violations of the laws and customs applicable in non-international armed conflicts.
This is the first instance in which a multilateral treaty explicitly recognizes that war crimes can be committed in the context of a non-international armed conflict. Up until 1998, the treaties governing the repression of such crimes –particularly the four Geneva Conventions and Additional Protocol I – only applied to international armed conflicts.
However, the Statute of the International Criminal Tribunal for Rwanda adopted in 1994, the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia from 1995 onwards and the legislative and judicial practice of States led to the conviction that war crimes can also be committed in non-international armed conflicts and that the obligation to punish such crimes established in the Geneva Conventions and Additional Protocol I applies regardless of how the armed conflict is categorized.
The important point here is that international humanitarian law provides for the protection of the victims of internal armed conflicts in some detail in common Article 3 and in other treaties, such as Additional Protocol II of 1977. In addition, international customary law fills some of the gaps in that it establishes that the majority of norms applying to international conflicts also apply to non-international conflicts. These rules, properly implemented and enforced, constitute one of the most powerful tools for alleviating the suffering caused by armed conflict.
The main difficulty in applying international humanitarian law lies not then in its content, but in determining whether the situation of violence qualifies as an armed conflict or not.
International human rights law, on the other hand, does not pose the same problem, as it applies in all situations.
The difficulties involved in applying human rights law in internal disturbances and tensions stem from the fact that this body of law lacks a system of protection comparable to the one established in international humanitarian law.
In the first place, the protection provided under human rights law is subject to derogation. Even when warranted on the grounds of strict necessity and proportionality, the possibility of suspending certain human rights in emergency situations necessarily weakens the protection of persons. Although there are core human rights that cannot be derogated from, the suspension of other rights can contribute to creating a situation in which these non-derogable rights are more likely to be violated. This is a risk that increase s when a State is able to suspend rights even when the formal, material conditions justifying derogation are not met. The mechanisms required to ensure that the established conditions are in fact met are not always in place, and where such mechanisms do exist, they are not always used as they should be.
Second, international human rights law is binding on States and their agents. They have a monopoly on force. However, non-State actors in disturbances can also resort to extremely violent acts, which are usually directed against the authorities, but may also be directed against people and property that have nothing to do with the authorities. In April 2004, demonstrators lynched the mayor of the city of Ilave, in Puno, Peru. There have also been lynchings in Bolivia, Guatemala and Mexico. The degree to which non-State actors are bound by human rights law does not seem to be very clear. The protection of human rights could therefore be seen to be asymmetrical, as is does not govern the conduct of non-State actors, who are bound by domestic law, particularly criminal law, which provides for punishment of violent acts against individuals and property.
Third, the rules of human rights law take no special account of the characteristics of a particular situation, for example, a situation involving disturbances or tensions. The lack of detailed implementing regulations, which international humanitarian law treaties do provide, can make these rules more difficult to implement, in spite of the efforts of human rights bodies, such as the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights.
It is precisely for this reason that international humanitarian law has become increasingly specific. For example, it is not sufficient to simply provide that civilians are protected against the effects of armed conflict; it is also necessary to establish detailed regulations to implement this protection to ensure that all the parties to the conflict co mply with it.
It is not easy, for example, to detach safeguards, such as the right to life, from restrictions on the use of force, particularly the use of firearms, in a situation that is not categorized as an armed conflict.
Along with detention without due process, the use of force and firearms represents perhaps one of the greatest threats to individuals in internal disturbances and tensions.
There are standards governing the use of firearms in law enforcement. International guidelines include the “Basic principles on the use of force and firearms by law enforcement officials” adopted by the United Nations in 1990 and the code of conduct for such officials adopted in 1979. Although they are not legally binding, they are widely accepted and provide useful guidelines, which, in practice, contribute to ensuring respect for rights such as the right to life. Specifically, they limit the use of firearms to exceptional circumstances in which it is strictly necessary and unavoidable to use them to achieve a legitimate objective.
Unfortunately, all too often, firearms are used arbitrarily in internal disturbances and tensions, which inevitably results in tragic consequences and escalates violence.
In Latin America and the Caribbean, the authorities that intervene to bring internal disturbances and unrest under control have an enormous responsibility to respect the life, integrity and dignity of the people involved.
In operations to maintain or restore public order, problems arise when the forces of order do not have a legal, doctrinal and operational framework to ensure that risks are minimized and that the State controls their action, when they have not internalized the rules, principles and standards that guarantee the protection of persons and when they are equipped with weapons designed for warfare.
It could be argued that sometimes the problem stems from treating situations that are not actually war as if they were. The term “gas war” was coined to refer to unrest in Bolivia. This creates a perception that seriously jeopardizes the protection of persons, in that it opens the door to all kinds of human rights violations.
Furthermore, it fuels confusion between international humanitarian law and human rights law. Although both these branches of international law have the same objective – to protect human life, integrity and dignity – they are based on different precepts.
In war, there are concepts that do not apply to other situations of violence. One such concept is the legitimate destruction of objectives when it contributes to weakening the enemy. As a corollary to this concept, there are elements that must not be attacked, such as civilians and civilian property.
This principle of distinction is not relevant in disturbances and tensions, because in such situations there are no military objectives and the right to life is absolute. In disturbances and tensions, the lethal use of weapons is strictly limited to protecting life, force can be used only for defensive and not for offensive purposes, collateral damage to third parties cannot be weighed against the necessity of achieving a certain objective, and causing death cannot be considered an objective.
Not all the rules of international humanitarian law are incompatible with protecting people in internal disturbances and tensions. In fact, it has been possible to identify a set of principles for the protection of persons, which overcomes some of the above-mentioned difficulties, particularly the problem of categorizing conflicts. They are standards based on the core principles of international humanitarian law, namely the principles of humanity, non-discrimination and respect for fundamental guarantees.
The Turku Declaration, named after the Finnish city in which it was adopted in 1990, was originally prep ared by a group of experts and subsequently approved by the United Nations.
The Turku Declaration sets forth minimum standards reflecting many rules of customary law that are binding on States and non-State actors alike regardless of how the situation of violence is categorized. The International Criminal Tribunal for the Former Yugoslavia, for example, has used it to argue points of law in its jurisprudence.
The reports of the United Nations Secretary-General on fundamental standards of humanity submitted between 1998 and 2004 to the Commission on Human Rights point out serious weaknesses in this respect. In any event, as they are standards, most of them are only intended as guidelines for the drafting of more detailed domestic measures. States therefore encounter the same kind of problems here that they do in implementing human rights law.
There is no doubt that in Latin America and the Caribbean there are public safety and security concerns that require specific responses at the State level. It is more than likely that growing economic and social inequalities will lead to an increase in internal disturbances and tensions in coming years.
The ICRC has therefore initiated a process of dialogue with experts and certain States in the region to discuss the challenges of maintaining public order. In cooperation with the Inter-American Institute of Human Rights, it organized a meeting of experts to address this issue in June 2005. The purpose of the meeting was to dissect the complex questions surrounding the protection of persons in situations of disturbances and tensions, with particular reference to the use of force. It provided an opportunity to examine many of the problems described above in the light of the situation in Latin America and the Caribbean. A set of standards was defined to enable States to adjust certain models or processes that often act as catalysts for abuses. These findings must now be studied in greater depth, and the ICRC hopes to make further progress in this direction, with the support of the American States.
Thank you very much.