By – Sh. Ajit
Historical Background
From the standpoint of general international law, the subject of human rights dates back over hundred years. Ironically, the first multilateral treaty on human rights arose out of war, and the oldest branch of human rights law is that devoted to protecting human rights in armed conflict.
Human Rights in Armed Conflict
In 1864 the major states of that era-mostly Western-wrote the first Geneva Convention for victims of armed conflict. This treaty the central principle that medical personnel should be regarded as neutral so they could treat sick and wounded soldiers. Such soldiers were no longer active combatants doing their national duty but were simply individuals in need. Another way of stating the central principle was that the individual soldier was entitled to at least a minimum respect for his essence as a person, to a minimum degree of humanitarianism even in war, the greatest denial of humanitarianism. It was this paradox the effort to interject a minimum humanitarianism into a basically inhumane situation that led to an entire branch of human rights law that was reaffirmed in 1977 and to the International Red Cross. (The group of Swiss citizens led by Henrit Dunant who worked for the first Geneva Convention of 1864 ultimately came to be known as the International of the Red Cross [ICRC]. The ICRC in turn was joined by National Red Cross societies, which by 1980 numbered over 125, and by their federation, the League of Red Cross Societies. This grouping is the International Red Cross). The 1864 treaty on medical personnel was revised in 1906, and a new treaty for prisoners of war was developed in 1929. In the modern, period four treaties were produced in 1949 on the subjects of wounded and sick combatants, prisoners of war, civilians and internal wars. The 1949 treaties were reaffirmed and supplemented in 1977. For the historical background it suffices to note the following. In some respects the early law about human rights in war was avant-garde. It was general international law, some eighty years ahead of general human rights law for so-called peaceful situations. It articulated a limit to national objectives even when the nation-state saw its goals as important enough to merit violence: there were humanitarian limits beyond which the individuals could not be legally ordered to kill and be killed for his state. In other respects the law for human rights in armed conflict was not so progressive. If we consider the early, pre-1949 law, we find no dramatic means of implementing the rights of sick and wounded combatants and prisoners of war. Belligerent states had primary responsibility for interpreting and implementing the law. The law for human rights in armed conflict remains one of the major trends in human rights prior to the modern, United Nations period. There were two other major trends prior to 1945.
Human Rights under the League of Nations
The first of these major trends can be called League of Nations attempts to protect human rights between 1919 and 1939 and encompassed primarily minority rights, labor rights and rights of individuals in mandated territories (there was also embryonic protection for refugees).
1. As for minority rights it was once again war that produced concern. After World War I there was a belief that unhappy minorities in central Europe had contributed to war’s outbreak in 1914. Thus minority treaties were attached to the Versailles peace treaty of 1919. Whatever the positive benefit from these treaties, they collapsed within twenty years under the pressure of Nazi expansionism and absorption of German peoples into the Third Reich.
2. International attempts to legally protect labor rights fared much better at least in the sense that such attempts proved more durable. The international Labor Organization (ILO) was created by treaty at the time of the League and it subsequently developed a series of treaties to protect the rights of labor. In so doing, the ILO attempted to oversee the labor policies of states. The effectiveness of the ILO and these treaties is considered in the next chapter. For now it suffices to note that the ILO commanded enough support after World War II for it to be incorporated into the United Nations system. Far from collapsing like the minority treaties which were not duplicated post-1945, the ILO and its treaties expanded.
3. The rights of individual’s in mandated territories were theoretically protected under the League Mandates Commission, which had the responsibility of seeing that Mandate Authorities (in reality, colonial powers) governed Mandated Territories (in reality colonies) for the well being of the inhabitants. The theory of international supervision over both national authority and individual is more noteworthy than the actual practice in the interwar years. The Mandates Commission consisted partially of the colonial powers, and individuals from Mandated Territories could not appear before the commission. Yet the general idea was accepted at this relatively early date that the League of Nations should guarantee the rights of peoples in these territories to national independence and well-being.
Human Rights and Slavery
In addition to Red Cross attempts to protect human rights in armed conflict and what may be loosely called League of Nations attempts to protect various rights a third major historical trend was made up by the long effort to protect the rights of hose held in slavery. This effort was not spearheaded by any one international organization but rather was led by an amalgam of non-governmental organizations (NGOs), the Anti-Slavery League. These NGOs finally persuaded states to adopt the 1926 Convention outlawing slavery a treaty that was supplemented in the 1950s. Two points are worth noting briefly. Firstly as in the struggle to secure rights in armed conflict, the effort to ban slavery was led by non-governmental forces. Second, international law was ahead of and a stimulus for changing much national law: slavery was outlawed in a number of nation-states only in the 1950s.
Modern Human Rights in Armed Conflict
Human rights in armed conflict had received its most extensive development in 1949, as already noted. Significantly, the four treaties of that year were based on types of victims, reflecting their human rights orientation. Interestingly, these 1949 Geneva Conventions came to be almost universally accepted in principle. Virtually all states legally adhered to them (which is not the same as implementing them), regardless of political philosophy or geographical region. Indeed, signing these 1949 conventions seemed to constitute positive proof of statehood, along with joining the United Nations and being recognized by the great powers. For example, both the Algerian rebels in the 1950s and the Ian Smith regime in Rhodesia tried to deposit signatures with the Swiss government. Virtually no other treaty save the UN charter had the status of the 1949 conventions on human rights in armed conflict. The 1949 law was inspired (if that is the right word) by the events of World War II. One example of this was the expanded legal attention given to civilians in the form of a separate treaty on the subject the Fourth Geneva Convention of 1949. But this complex of four treaties looking backward to large scale, conventional war proved partially deficient in regulating the less than fully conventional wars Post-1949 in such places as Algeria, Viet Nam and southern Africa. For this and other reasons (such as the Third World, non-humanitarian interest in conferring political status on “freedom fighters”), the 1949 law was supplemented in the 1970s. The two Geneva Protocols (or additional treaties) of 1977 are noteworthy in a number of respect. For the first time in world history there is a relatively detailed treaty on human rights in internal war. In 1949 each of the four treaties contained but one Article on internal war, an Article plagued subsequently by disputes over meaning. As of 1977, it was clear as never before that a government was legally supposed to adhere to human rights standards in attempting to manage its own nationals who had revolted and carried their rebellion to the level on internal armed conflict. Nirvana was not at hand, because each state retained considerable discretion about when an internal war existed and what the applicable law required. Yet there was a further inroad on state arbitrariness represented by this second protocol of 1977. If the inroad was partly symbolic rather than fully practical, this was offset by awareness of the fact that states had historically been reluctant to accept international regulation of events within their territory and especially of events touching upon the security of the government.”
The two protocols extended legal protection of civilians to the point where starvation of civilians as an act of war was explicitly prohibited for the first time in history. The first protocol extended legal protection to guerrilla fighters as well as regular army personnel and the second protocol extended sweeping protection to any person detained in connection with an internal war. These 1977 protocol are not likely to transform armed conflict into a Red Cross social event despite the significant provisions noted above. The second protocol on internal war has yet to be widely accepted in those states where a number of internal wars are likely to occur. States retain much freedom in interpreting the law and there is not a reliable system of international supervision to promote a reasonable and equitable application complex: the “good-old boy average soldier” from Arkansas (or Madras or Shaba) will have trouble understanding what he cannot legally do. Yet in the last analysis the 1977 protocol are symbols of the strength of the idea of human right. It may even be said to be amazing that they were adopted by a diplomatic conference and made available for state adherence. Especially when states employ violence it is difficult to get them to mesh the ethics of human rights with state self-interest. And the usual philosophical and regional difference must be overcome. These difference are, in the law of armed conflict, sometimes not so much overcome as papered over as in Protocol 2, Article II, where paragraph 4 states: “Subject to national law [emphasis added] no person engaged in medical activities may be penalized in any way for refusing or failing to give information concerning the wounded and sick who are or have been under his care!’ It is not self-evident how an inconsistent national law is to be blended with a clear norm of international human rights, in this instance the right of a doctor not to divulge information about a patient. The strength of the idea of human rights is thus reduced by vague language which permits conflicting interpretations. Only future state practice will provide a clear record of protection efforts.
