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Situations and Persons Not Expressly Covered by Humanitarian Law
Legal approaches to the question of protecting individuals get caught in a dilemma. To offer the most effective protection, it is important to provide a precise definition of each situation and of the persons involved in it, to establish the specific protection to which they may be entitled. At the same time, the explicit mentioning of protection granted to these persons may result in a weakening of the more general provisions meant to protect other persons or situations. Another risk is that searching for such precise definitions may cause arguments between those trying to determine the correct qualification for a given case. This may delay or hinder the application of protection needed for victims of a conflict. This risk is illustrated by the legal debates surrounding the qualification of contemporary armed conflicts and their capacity to meet the criteria of international or non-international armed conflicts, as well as by debates concerning the status of the members of non-state armed groups. Although there should be no legal gap between the civilian and combatant categories, which are exclusive from one another, it is important to keep these debates and issues in mind when examining the rights that remain applicable to situations and persons not expressly or directly covered by humanitarian law.
The 1949 Geneva Conventions and their 1977 Additional Protocols have a limited scope of application. To protect individuals better, these texts proceed by category: categories of conflicts and categories of persons.
The four Geneva Conventions and the Additional Protocol I are only applicable to international armed conflicts, except for Common Article 3 to the Geneva Conventions, which covers non-international armed conflicts and is complemented by Additional Protocol II. However, in situations of internal disturbances or tension—when the violence has not reached a level of intensity high enough to qualify a given situation as an armed conflict—for instance, in the case of riots or sporadic acts of violence—humanitarian law does not apply, except for the principles set forth in Common Article 3, as they are similar to minimum and imperative human rights norms and parts of them are said to be applicable at all times.
Humanitarian law sets forth the distinct rights of civilians, combatants, wounded and sick persons, women, children, detained or interned persons, prisoners of war, and populations of occupied territories or besieged areas. The strength of this approach is that it lists specific rights, carefully adapted to protect individuals in these categories from the specific risks that they may incur as a result of their status or the nature of the situation. The weakness of this method is that the more precise a definition is, the greater chance there is that a person or situation will be excluded from the protection that the definition is meant to engender.
To prevent the specialized protection that the Conventions provide from weakening the general protection they offer, several of their articles establish that:
- There is a minimum standard of protection that must be ensured for all individuals. It can be supplemented with additional but specific measures of protection meant to benefit certain specific categories of persons or situations (see Section II).
- Some provisions of international humanitarian law are applicable to situations in which the Geneva Conventions might not otherwise or automatically be applicable (see Section I).
The Ad Hoc Application of the Geneva Conventions
The extensive rules set forth in the four Geneva Conventions only regulate international armed conflicts, except for Common Article 3, which establishes the minimum protection that must be enforced in other situations of violence, including non-international armed conflicts. The Article also establishes that parties to a non-international armed conflict should “endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.” This mechanism allows the Conventions’ scope of application to be enlarged on an ad hoc basis. It also helps to break any judicial reflexes that may exist and to emphasize belligerents’ goodwill, or lack thereof, in terms of their willingness to protect the populations that are victims of conflict.
In practice, this is facilitated because Common Article 3 further states that the application of this provision “shall not affect the legal status of the parties to the conflict.” Thus, one party to a conflict cannot use the recognition and application of the international law of armed conflict, or the signature of special agreements to that effect, to try to obtain formal recognition from the adverse or opposing political or military authorities.
This ad hoc approach to law does have an important safeguard: no special agreement may weaken the protection established by the Conventions (GCI–III Art. 6, GIV Art. 7).
The Conventions further establish that “each party to the conflict, acting through its commanders-in-chief, shall ensure the detailed execution of the [Convention’s provisions], and provide for unforeseen cases,” in conformity with the general principles of the Conventions (GCI Art. 45, GCII Art. 46). Thus, parties to the conflict must respect those principles. An interpretation of the Geneva Conventions and its Additional Protocols that would create legal vacuums and absurd legal situations is contrary to the spirit of those texts.
Humanitarian law also depends on relief organizations to fill the void in situations in which no specific laws are enforceable. The right of humanitarian initiative is not considered interference by humanitarian law. The International Committee of the Red Cross is also mandated to develop humanitarian law in fields not sufficiently covered. It is in this context that it took the initiative to publish a study in which it identifies the customary rules of international humanitarian law, as well as an interpretative guide on the notion of “direct participation in hostilities” by civilians.
Minimum Protection Provided for in International Humanitarian Law and International Human Rights Law
Common Article 3 establishes the minimum standards of protection applicable in times of conflict, whether international or non-international. The principles it enumerates remain applicable at all times, including situations not covered by humanitarian law, such as internal disturbances and tensions. This article is now recognized as a mandatory rule of customary law, which means that it is binding on all parties to the conflict.
This article, which defines the acts that are strictly prohibited in all circumstances, with regard to all non-combatants without adverse distinction, is explained in the entries on ▸ Fundamental guarantees . It also posits that “the wounded and sick shall be collected and cared for” and that “an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the parties to the conflict.” These minimum rights, which apply to all persons hors de combat , are not subject to any criterion that could delay or annul them. The two 1977 Additional Protocols extended the content of those minimum and mandatory rights for victims of international armed conflicts (API Art. 75) and non-international armed conflicts (APII Arts. 4, 5). These articles apply as a minimum, as long as the person does not benefit from a more protective status under one of humanitarian law provisions.
Humanitarian law further establishes that “in cases not covered by [the Geneva Conventions and Additional Protocols] or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience” (API Art. 1.2, GCI Art. 63, GCII Art. 62, GCIII Art. 142, and GCIV Art. 158).
This formulation is almost identical to the Martens Clause that is part of the preamble to the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land. The Martens Clause—named after Frédéric de Martens, the Russian delegate to the Peace Conferences held in The Hague in 1899 who introduced this language into the convention—was retained by contemporary humanitarian law. It reaffirms the duties and obligations toward humanity that States must uphold at all times with regard to situations and persons not expressly covered by humanitarian law.
Finally, for situations in which fighting is not intense enough to trigger the application of humanitarian law, or for individuals who might not come under one of the categories of protected persons established by the Conventions, it is always possible to invoke the fundamental guarantees enumerated by human rights conventions. Besides, human rights conventions continue to apply in situations of conflicts (except for authorized derogations) in a complementary manner with humanitarian law. However, States have the authority to restrict a great number of human rights and liberties in times of conflict, internal disturbances, or tensions. Only a small number of rights and freedoms remain enforceable at all times: these are the rights that may never be infringed on or suspended, known as inalienable rights, and that continue to protect the fundamental guarantees to which individuals are entitled, even when the application of humanitarian law is contested. States are bound by their human rights obligations, which have an extraterritorial and extra-national character. Indeed, international jurisprudence has recognized that States must respect human rights, including vis-à-vis foreign individuals or territories placed under its effective control, notably due to detention or military occupation.
▸ Customary international law ▸ Fundamental guarantees ▸ Human rights ▸ Internal disturbances and tensions ▸ International armed conflict ▸ International humanitarian law ▸ Non-international armed conflict ▸ Protected persons ▸ Siege ▸ Special agreement
For Additional Information: ICRC. “Protection and Assistance Activities in Situation Not Covered by International Humanitarian Law.” International Review of the Red Cross 262 (January–February 1988): 9–37.
Miyazaki, S. “The Martens Clause and International Humanitarian Law.” In Etudes et Essais sur le Droit International Humanitaire et les Principes de la Croix-Rouge , edited by C. Swinaski, 433–44. Geneva: ICRC / Martinus Nijhoff, 1984.