The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Public Order

In humanitarian law, the terms public order or law and order describe the general conditions that must exist so that individuals can enjoy their rights and freedoms.

States are responsible for defending public safety. However, in all circumstances, even when taking measures to defend the public order, governments must always respect certain fundamental human rights. ▸ Fundamental guarantees

There is no specific definition to explain the contents of the notion of “public order.” It is generally understood to include both legal and physical guarantees of freedom, security, and peace of mind, which are necessary for individuals to live together in society.

The basic rules that govern public order in society and are agreed on by almost all States are codified in various international treaties. Beyond this common foundation, each society must decide for itself what framework to apply to law and order, depending on the goals of its population, the country’s political choices, and its material constraints.

National Measures to Protect Public Order

It is up to the government to prevent disturbances of public order that may threaten the collective security of individuals. To defend the public order from such threats, States may limit some individual rights, if their exercise presents a real and concrete risk of disturbing law and order.

International law recognizes the importance of safeguarding public order by allowing governments—to the extent strictly required by the urgency of a given situation—to take measures derogating from their obligations to safeguard and defend the human rights of its citizens. The necessity and proportionality of such restriction to human rights may be submitted to judicial review in front of domestic or regional courts. ▸ Proportionality

The government has the duty to maintain or reestablish law and order through legitimate means. The obligation to respect these “legitimate means” denotes the fact that, even during efforts to restore public order in situations of unrest or conflict, the State must protect the fundamental guarantees to which individuals are entitled under international human rights instruments and, when applicable, the 1949 Geneva Conventions and their 1977 Additional Protocols (API Art. 75; APII Art. 3.1; Art. 29 of the Universal Declaration of Human Rights; Art. 4 of the International Covenant on Civil and Political Rights; Art. 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Art. 27 of the American Convention on Human Rights; Art. 8 of the UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict).

Measures to Protect the International Public Order

The Security Council of the UN is responsible for defending the international public order from acts of States that threaten international peace and security. According to Chapter VII of the UN Charter (Concerning Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), responses to breaches of international public order can derogate from the principle of State sovereignty and serve to justify the UN resorting to the use of force.

The Protection of International Public Order

A reading of the decisions taken by the Security Council to date will not lead to a definition of all the acts that may endanger international law and order. Furthermore, the definition of such acts is evolving rapidly. For decades, the only acts considered “criminal” were those threatening international peace and security. Within the UN structure, only the Security Council has the authority to determine if a given situation constitutes a breach of, or threat to, peace (Art. 39 of the UN Charter). According to the UN Charter, the Security Council is not responsible for enforcing the respect for law per se; however, recent conflicts have led the Council to recognize that certain grave and massive violations of humanitarian law could endanger international peace and security.

In Resolution 808 of 22 February 1993, the Security Council reaffirmed that the grave and widespread violations of international humanitarian law committed in the territory of the former Yugoslavia, in particular mass killings and the continued practice of ethnic cleansing, constituted a “threat to international peace and security” and therefore a breach of the international public order. Later resolutions concerning the situations in the former Yugoslavia and Rwanda also qualified such grave violations of humanitarian law as threats to international peace and security (Resolution 827 of 15 May 1993 and Resolution 955 of 8 November 1994).

On 17 July 1998, at the outcome of a diplomatic conference in Rome organized under the aegis of the UN, States adopted the Statute of a permanent International Criminal Court (ICC); it entered into force on 1 July 2002. The ICC is responsible for prosecuting individuals accused of crimes that “threaten the peace, security, and well-being of the world” (Preamble of ICC Statute): genocide, war crimes, and crimes against humanity. The ICC has jurisdiction over the crime of aggression since the Assembly of State Parties of the ICC adopted a definition during the Kampala Review Conference of the Rome Statute in 2010. ▸ Aggression

The Security Council has the authority to refer situations to the Court for investigation and prosecution. Subject to certain preconditions, the ICC may also investigate cases when a State Party has referred a situation to the prosecutor or on the prosecutor’s own initiative. ▸ International Criminal Court

Collective SecurityFundamental guaranteesHuman rightsInternal disturbances and tensionsInternational armed conflictInterventionNon-international armed conflictPeacekeepingProportionalitySafetySanctions (diplomatic, economic, or military)Security Council of the UNState of emergency/State of siegeUnited Nations

For Additional Information: Hadden, Tom, and Colin Harvey. “The Law of Internal Crisis and Conflict.” International Review of the Red Cross 833 (March 1999): 119–33.