Internal Violence and International Humanitarian Law

ABSTRACT

Countries have always experienced a degree of violence that has consequently endangered their
rule of law and fundamental rights of their people. The social, civil and political problems are
getting more and more complex day by day which has led to increase in levels of violence. The
internal violence within countries lead to a situation where fundamental rights of people are
hampered and governments continue to disrespect their fundamental obligations. It is at this
stage that international community is required to analyse such situations happening within a state
and do its best to mitigate the possibilities of human right violations. The incidents of illegal
arrest, torture, restriction or complete abrogation of fundamental rights remain high during such
situations of internal violence. To tackle these types of incidents, there is a need of
comprehensive and well-organised legal order which can make a strict obligation upon national
governments to follow their fundamental obligations. In case of failure such governments can be
punished in forms of sanctions and various other methods. One side of International law
stalwarts say that International Humanitarian Law can be the best way of dealing with such
situations while on other side we have scholars who eulogise that International Humanitarian
Law is insufficient and vague to deal with the situations of Internal Violence. The paper analyses
the concept and working of International Humanitarian law and its scope of application. It also
looks at the situations of internal violence and the ability of international humanitarian law to
deal with it. Paper also tries to put forward an alternate way to deal with the problems of internal
violence in light of certain other international conventions and treaties.

In addition to that, the paper adopts a comprehensive insight over working of International
Humanitarian law and the points of distinction which it may have with regards to international
human rights law. A suggestion has been put forward to widen the area of application of
International Humanitarian Law to internal violence with the help of an article by Djamchid
Momtaz, a professor at the Faculty of Law and Political Science of the University of Tehran. An
observation regarding challenges faced by the present International Humanitarian Law has been
made in the paper.

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 Internal Violence and International Humanitarian Law

International Humanitarian Law

International Humanitarian Law can be defined as the branch of International limiting the use of
violence in armed conflicts by sparing those who do not or no longer directly participate in
hostilities, limiting the violence to the amount necessary to achieve the aim of the conflict, which
can be independently of the causes fought for only to weaken the military potential of the
enemy1. International humanitarian law (IHL) is a set of rules which seek, for humanitarian
reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer
participating in the hostilities and restricts the means and methods of warfare. It is also known as
“Law of war” or “law of armed conflict”.

This definition points at basic principles of IHL:

- The distinction between civilians and combatants;

- The prohibition to attack those de hors combat;
- The prohibition to inflict unnecessary suffering ;
- The principle of necessity; and
- The principle of proportionality.

This definition also leads to show certain inherent limits of IHL:

- It does not prohibit the use of violence;

- It cannot protect all those affected by an armed conflict;
- It cannot prohibit a party to overcome the enemy;
- IHL presupposes that parties to an armed conflict have rational aims.

In the reality of even contemporary conflicts, the expectations of belligerents and the arguments
made, including the hypocrisies adopted, by governments, rebels, politicians, diplomats, fighters,
and national and international public opinion refers to standards, not only on when armed
violence may be used (or, rather, that it may not be used) but also on how it may be used 2. At the
level of judgment on behaviour (and this is what law is all about).

1
``How does law protect in war``, Volume 1, Outline of International Humanitarian Law, ICRC
2
Ibid.

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 Internal Violence and International Humanitarian Law

International Humanitarian Law is omnipresent in contemporary conflicts, the expectations of

belligerent, and the arguments made, including the hypocrisies adopted, by governments, rebel,
politicians, diplomats, fighters, and national international public opinion refer to standards, not
only on when armed violence may be used (or rather, that it may not be used ) but also on how it
may be used. At the level of judgment on behavior (and this is what law is all about).
International Humanitarian Law is omnipresent in contemporary conflicts: in United Security
Council resolutions and on the banners of demonstrators, in speeches of politicians, newspaper
articles, in political pamphlets of opposition movements and in reports of non-governmental
organizations, in military manuals of soldiers, and in aide memoires of diplomats. People with
completely different cultural and intellectual backgrounds, emotions, and political opinions agree
that in an armed conflict killing an enemy soldier on the battlefield and killing women and
children because they belong to enemy are not equivalent acts. Conversely, no criminal justice
system confers a different legal qualification upon a bank-robber who kills a security guard and a
bank-robber who kills a client of the bank3.

International Humanitarian Law is somewhat related to International Law in certain situations

like:

- When the international courts and tribunal while applying the set provisions of
International Humanitarian Law also look at general principles of International law.

- They also observe set parameters of customary International Law.

- While doing so, these courts and tribunals also follow minimum standards to apply
International Humanitarian Law.

Sources of International Law

There are more than hundreds of treaties and conventions working as source of international law.
However, we can have a glance at some of them:

3
Ibid.

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 Internal Violence and International Humanitarian Law

- Four Geneva Conventions of 1949.

- First Additional Protocol, 1977 based on International Armed Conflict and protection of
civilians.

- Second Additional Protocol, 1977 based on Non-International Armed Conflict.

- Third Additional Protocol of 2005 called for re-additional emblem.

- Weapons and Treaties for their mitigation (Ottawa Convention, Chemical Weapons,
Biological Weapons, Certain converted weapons)

Apart from aforesaid sources of International Humanitarian Law, there are still other sources
which also influence International Humanitarian Law in some way or other. The refugee law,
Humanitarian Law, Right to resort to force, Law of sea etc are other International laws which
also become components of International Humanitarian Law.

The Concepts of Jus-in-bello and Jus-ad-bellum

The rules of International law applicable between parties to an armed conflict and related to
armed conflict are called as jus in-bello. While Jus ad bellum deals with the rules of International
law governing to resort to armed forces. The Geneva Law4 has formed the part of Jus in-bello.
Geneva Law says that humanitarian law is a field which is designed to safeguard military
personnel and who are not or are no longer taking part in the fighting and persons not actively
involved in hostilities. They can be sick persons, prisoners of war (POWs) etc. Further there is
Hague law5 which states that the law of war which establishes the rights and obligations of
military operations and limits the means of harming the enemy.

4
Present day modern International Humanitarian law is governed by two principles - the Law of Geneva,
i.e. a body of rules which protect victims of war, and the Law of The Hague, i.e. those provisions which
affect the conduct of hostilities
5
Supra.

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 Internal Violence and International Humanitarian Law

Development of International Humanitarian Law

Its’ very beginning can be traced back to battle of Solferino, a terrible battle in Northern Italy
between French, Italian, and Austrian forces in 1859. Witness of this carnage, Henry Durant, a
businessman from Geneva was struck not so much by the violence of that fight but rather by the
miserable fate of wounded left on the battlefield. Together with women of the surrounding
villages he tried to alleviate the suffering.

Back in Geneva, Dunant published in 1862 a short book “A memory of Solferino” in which he
vividly evoked the horrors of battle, but also tried to find remedies to the sufferings he had
witnessed. Among other proposals, Dunant invited states “to formulate some international
principle, sanctioned by a Convention inviolate in character” and giving a legal protection to
military wounded in the field.

Dunant’s proposals met an enormous success all over Europe. A few months after the
publications of his book, a small committee, the ancestor of the ICRC was founded in Geneva.
Its main objective was to examine the feasibility of Dunant’s proposals and to identify ways to
formalize them. After having consulted military and medical experts in 1863, the Geneva
committee persuaded the Swiss Government to convene a diplomatic conference.

This conference met in Geneva in August 1864 and adopted the “Geneva Convention for the
Amelioration of the condition of the wounded in Armies in the field.”

For the first time, States agreed to limit-in an international treaty open to universal ratification-
their own power in favor of the individual and, for the first time, war gave way to written,
general law. In this way modern International Humanitarian Law was born. We must discuss
some of the major features supporting this evolution:

- The constant enlargement of the categories of war victims protected by the Humanitarian
law (military wounded; sick and shipwrecked; prisoners of war; civilians in occupied territories;
the whole civilian population), as well as by the expansion of the situations in which victims are
protected (international and non-international armed conflicts);

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 Internal Violence and International Humanitarian Law

- The regular updating and modernization of the treaties, taking into account the realities of
the most recent conflicts: as an example , the rules protecting the wounded adopted in 1864 were
thus revised in 1906, 1929,1949 and 1977 (critics have therefore accused IHL of being always
“one war behind reality”);

Two separate legal currents have, up until 1977, contributed to this development, the Geneva
Law, mainly concerned with the protection of the victims and the Hague Law, whose provisions
relate to limitations or prohibitions of specific means and methods of warfare6.

These two legal currents were merged with the adoption of the two Additional Protocols of
19777.

Up until the 1970s, IHL or at least its codified norms has been strongly influenced by western
culture and European powers. However, the humanitarian ideas and concepts formalised by IHL
treaties are shared by many different schools of thoughts and cultural traditions. This does not
however, necessarily negate the universal foundation of IHL. Non-western cultures have also
adopted the IHL and have provided proper inputs after the time of 1970s. however, the problem
it faces with universal values is probably one of the greatest challenges faced by humanity. The
law cannot avoid addressing it. Unfortunately, the question of the universal nature of IHL has
prompted little scholarly deliberation, unlike the body of human rights law, whose universal
nature has been forcefully called into question-by anthropologists, among others, and particularly
since the 1980s.

International Humanitarian Law developed at a time when the use of force was a lawful form of
international relations, when states where not prohibited to wage war, when they had the right to
make war (i.e. when they had the jus ad bellum) 8. There was no logical problem for international
6
Present-day international humanitarian law has grown from two main sources: the Law of Geneva, i.e. a
body of rules which protect victims of war, and the Law of The Hague, i.e. those provisions which affect
the conduct of hostilities.
7
The Geneva Conventions and their Additional Protocols are at the core of international humanitarian
law, the body of international law that regulates the conduct of armed conflict and seeks to limit its
effects. They specifically protect people who are not taking part in the hostilities (civilians, health
workers and aid workers) and those who are no longer participating in the hostilities, such as wounded,
sick and shipwrecked soldiers and prisoners of war.
8
Jus ad bellum (Latin for "right to war") is a set of criteria that are to be consulted before engaging in
war, in order to determine whether entering into war is permissible; that is, whether it is a just war.

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 Internal Violence and International Humanitarian Law

law to prescribe them the respect of certain rules of behaviour in war (the jus in bello) if they
resorted to that means9.

Application of International Humanitarian Law

International Humanitarian Law applies in various situations and perspectives like international
armed conflicts and non-international conflicts10.

On International Armed Conflict

This law relating to international armed conflict applies “to all cases of declared war or of any
other armed conflict which may arise between two or more of the High Contracting Parties, even
if the state of war is not recognized by one of them11

The notion of “armed conflict” has, from 1949 onwards, replaced the traditional notion of “war”.
According to the Commentary to the first Geneva Conventions of 1949, the substitution of this
much more general expression (“armed Conflict”) for the word “war” was deliberate. One may
argue almost endlessly about the legal definition of “war”. A state can always pretend, when it
commits a hostile act against another state, that it is not making war, but merely engaging in a
police action, or acting in legitimate self-defence. The expression “armed conflict” makes such
arguments less easy. Any difference arising between two states and leading to the intervention of
armed forces is an armed conflict, even if one of the Parties denies the existence of state of war”

In application of a standard rule on the attribution of unlawful acts of the law of state
responsibility, a conflict between governmental forces and rebel forces within a single country
becomes of international character if the rebel forces are de facto agents of a third state. In this
event, the latter’s behaviour is attributable to the third state and governed by International
Humanitarian Law of International Armed conflicts12.

9
Jus in bello The law of war is a body of law concerning acceptable justifications to engage in war (jus ad
bellum) and the limits to acceptable wartime conduct (jus in bello or International humanitarian law).
10
``How does law protect in war``, Volume 1, Outline of International Humanitarian Law, ICRC
11
Article 2 (1) common to the conventions

http://www.jstor.org/discover/10.2307/25657683?
12

uid=307654471&uid=3737496&uid=2129&uid=2&uid=70&uid=2812208&uid=3&uid=67&uid=62&sid

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 Internal Violence and International Humanitarian Law

On Non- International armed conflict

Traditionally, these conflicts were considered as purely internal matters for states, in which no
international law provisions applied. This was subsequently changed with the adoption of Article
3 common to the four Geneva Conventions of 194913. For the first time the society of States
agreed on a set of minimal guarantees to be respected during non-international armed conflicts.
However, Article 3 has not given a clear definition of notion of non-international armed
conflict14.

During the diplomatic conference of 1974-1977, the need for a comprehensive definition of the
notion of non-international armed conflict was reaffirmed and dealt with accordingly in Article 1
of the Additional Protocol II15.

According to that provision, it was agreed that protocol II “[shall apply to all armed conflicts not
covered by Article 1[..] of protocol I and which take place in the territory of a high contracting
party between its armed forces and dissident armed forces or other organised armed groups
which, under responsible command, exercise such control over a part of its territory as to carry
out sustained and concerted military operations and to implement this protocol”

It should be noted that this fairly restrictive definition applies only to protocol II. The definition
does not apply to Article 3 common to the four Geneva Conventions

Practically, there are thus situations of non-international armed conflicts in which only Article 3
will apply, the level of organization of the dissidents groups being insufficient for protocol II to
apply16. Moreover, the statute of International Criminal Court provides an intermediary threshold

=21101840960647 as on March 01,2013

13
It states certain instances in the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a
minimum, certain provisions.
14
Article 3 merely states that it is applicable “in case of armed conflict not of an international character
occurring on the territory of one of the High contracting parties[…]”
15
http://www.icrc.org/eng/resources/documents/interview/2012/12-10-niac-non-international-armed-
conflict.htm as on March 04,2013
16
Supra

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 Internal Violence and International Humanitarian Law

of application. There is no longer a requirement for the conflict to take place between
governmental forces and rebel forces, for the latter to control part of the territory, nor for there to
be a responsible command17.

Application of International Humanitarian Law in Other Situations

IHL is not applicable in situations of internal violence and tensions. This point has been clearly
made in Article 1(2) of Additional Protocol II which states “ this protocol shall not apply to
situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not being armed conflict[..]18.”

Application on Acts of terrorism

Though there is no internationally recognised definition of an act of terrorism, in the context of

an armed conflict, it can be considered as an act banned by IHL protecting civilians, which
provokes terror among individuals, certain groups or the civilian population as a whole19.

Acts of terrorism are prohibited, whether they are committed during armed conflicts, situations
of internal violence or in time of peace. These two last situations are not covered by IHL but acts
of terrorism are also prohibited by internal and international criminal law20

IHL applies equally to those who commit acts of terrorism(regular armed forces, national
liberation movements, resistance movements, dissident armed forces engaged in an internal
armed conflict or groups who, as their main action consists of terrorist acts, can be considered as
terrorist groups) as to their opponents. The war against groups considered as terrorist is therefore
submitted to the same rules as any other armed conflict.

17
See Case no. 15, the International Court of Criminal Court [A., The Statute, Article 8(2) (f).] p.608
18
The notions of internal disturbances and tensions have not been the object of precise definition during
1974-1977 Diplomatic Conference.
19
www.iihl.org/iihl/Documents/Terrorism%20and%20IHL.pdf as on March 04,2013
20
For an exhaustive list of international instruments on terrorism, see the Internet site UN action against
terrorism. http://www. Un.org/terrorism

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 Internal Violence and International Humanitarian Law

As International Humanitarian Law developed as law of international armed conflicts in

conformity with the traditional function of international law, inter-state relations, it mainly aimed
at protecting “enemies” in the sense of enemy nationals.

There are several areas of application including passive application as well as temporal
application. International Humanitarian Law starts to apply as soon as an armed conflict arises,
e.g., as soon as the first protected person is affected. It protects individuals against the
(traditional enemy) State or other belligerent authorities. International Humanitarian Law,
however, also corresponds to the traditional structure of International Law in that it governs
often by the very same provisions) relations between States. Its treaty rules are therefore,
regulated, with some exceptions, by the ordinary rules of law of treaties. In addition, it prescribes
rules of behaviour for individuals (who must be punished if they violate them) for benefit of
other individuals.

Distinction: International Humanitarian Law and International Human Rights Law

IHL developed as law of International armed conflicts and was therefore necessarily
international law in the traditional sense, an objective legal order governing inter-state relations.
Its main objective was always to protect individuals but that protection was not expressed in
form of subjective rights of the victims but was a consequence of the rules of behaviour for states
and (through them) of individuals.

Human Rights have been only recently protected by International law and are still today seen as
a matter mainly governed by national law (though not of exclusively domestic concern). They
were always seen and formulated as subjective rights of the individual (and, more recently of
groups) against the state-mainly their own state. However, both the branches are largely codified.

International Humanitarian Law is applicable in armed conflicts only. International Human

Rights law is applicable in all situations. All but the non- derogable provisions, the “hard core”
of International Human Rights Law, however, may be suspended, under certain conditions, in
situations threatening the life of the nation. As the latter do not only include armed conflicts, the
complementarity remains imperfect, in particular, a gap exists in situations of internal
disturbances and tensions21. While it is an important rule of International Human Rights Law that
21
http://www.icrc.org/eng/resources/documents/misc/57jnzc.htm as on February 25,2013.

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 Internal Violence and International Humanitarian Law

all human beings equally benefit from these rights, the traditional approach of IHL, consistent
with its development as inter-state law, aims mainly at protecting enemies. IHL therefore defines
a category of protected persons, consisting basically of enemy nationals, who enjoy its full
protection22. Nevertheless, victims of armed conflicts who are not “protected persons” do not
completely lack protection23. In conformity with and under the influence of IHRL, they benefit
from a growing number of protective rules, which, however, never offer the full protection
foreseen for the protected persons.

IHL governs certain relations as between individual and states, states and states and between
individual and individual. Whereas, international human rights law governs only relations
between Individuals and States. In addition to that International Humanitarian Law regulates
some problems which are vital for protection of victims of armed conflicts, but which
International Human Rights Law fails to address even implicitly24

Internal Violence and International Humanitarian Law

Internal Violence

What are “situations of internal violence”?

There is no legal definition about the term internal violence but we sometimes refer to them as
internal disturbances or international tensions in order to be able to better identify them. They
may take the form of clashes, in the country side or in cities, between security forces and
demonstrators, between different groups in the community, between the security forces and
armed groups, or between illegal forces. The ICRC has expanded the definition to include all the
exigencies which may arise in future25. The Humanitarian consequences of internal violence
include: death or wounding, including of agents of the state; detention; displacement;

22
Ibid.
23
http://www.icrc.org/eng/resources/documents/misc/57jnzc.htm as on March 01,2013.
24
Thus, article 44 (1)-(3) of protocol-1 on combatant status deals with the question who may use force,
an issue not addressed by International Human Rights Law, but which is crucial for protection of
civilians.
25
http://www.icrc.org/eng/resources/documents/misc/5kzk2z.htm as on March 03,2013

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 Internal Violence and International Humanitarian Law

disappearances; threats; abuse; destruction of property or homes; slowing off economy and
trauma. People are not familiar with the International Humanitarian Law in situations of internal
violence and hence they suffer. In cases of internal violence where the provisions of international
humanitarian law do not apply, the humanitarian work can be performed by certain initiatives
contained in International Red Cross and Red Crescent movement adopted by the International
Conference which brings together representatives from components of the movement and the
states party to the Geneva Convention every four years26.

Many states across the globe have faced internal tension and strife, sometimes so serious as to
threaten their fundamental interests. These situations, characterised as they are by acts of revolts
and violence committed by more or less organised groups fighting either the authorities or
amongst themselves, are distinct from those termed as non-international armed conflicts, in
which the violence is more intense. In order to bring these internal confrontations to an end and
restore order, the authorities frequently make massive use of police forces or even the armed
forces. The inevitable result is a weakening of the rule of law, marked by serious, large-scale
human rights violations causing widespread suffering among the population 27. It is generally
accepted that governments may declare a state of emergency and, provided that the situation so
demands (and only then), take steps that depart from international human rights law and suspend
some of those rights. There are fundamental rights inherent to human dignity- the so-called
inalienable rights from which no derogation is possible under any circumstances. The safeguards
provided by those rights to individuals caught in the maelstrom of internal violence appear today
to be inadequate. Initiatives are being taken at the international level to furnish better protection
and make up for the shortcomings of international human rights law in cases of internal violence,
in which atrocities continue to be committed28.

Sometimes internal tension and strife faced by many states are so serious that even threaten their
fundamental interests. They are at high rate and can be committed by more or less organised
groups fighting either authorities or amongst themselves. They are distinct from non-
26
http://reliefweb.int/report/world/internal-conflicts-or-other-situations-violence-%E2%80%93-what-
difference-victims as on March 03,2013.
27
David P. Forsythe, The Humanitarians, The International Committee of the Red Cross
28
David Rieff, Humanitarianism in Crisis, A bed for the Night

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 Internal Violence and International Humanitarian Law

international armed conflict where violence is very intense29. However, in order to bring these
situations to an end and restore order, the authorities frequently make massive use of police force
or even armed forces. Consequently, there is weakening of rule of law followed by serious large-
scale human rights violations causing widespread suffering among population. Though it is true
that all states have relative freedom in assessing whether a situation presents a danger to the
public and whether to declare a state of emergency, this option is nevertheless subject to certain
conditions of form and substance. No matter how serious any circumstance is existing which has
caused the state to resort to such measures, it nevertheless cannot depart from the fundamental
rules called erga omnes30 obligations.

Guarantees put upon by national legislations regarding states of emergency

The draft articles on state responsibility recently adopted on first reading by the United Nations
Commission on Human Rights, a state of emergency can be invoked by a government only if it is
“the only means of safeguarding on essential interest (..) against a grave and imminent peril” .
Thus, the seriousness of the situation must be so grave that recourse to emergency legislation
becomes inevitable. Such measures must be designed to deal with such crisis situations and must
be applied as interim measures.

Many research scholars have pointed out that nation states should clearly define in their
legislations the acts which amount to internal violence and conflicts of grave nature leading to
declaration of national emergency. Also the states should make this fact known to neighbouring
states that such national emergency has been declared. This obligation to notify other states is
obviously intended to avoid establishment of de facto states of emergency. It also requires the
state to notify as soon as possible the other states the causes of emergency and the deviations
from the erna omnes obligations if any. The United Nations Human Rights Commission also
recognises the indispensable requirement of suitable national legislations to deal with

29
Ibid.
30
Erga omnes is a Latin phrase which literally means "towards all" or "towards everyone". In legal
terminology, erga omnes rights or obligations are owed toward all. For instance a property right is an erga
omnes entitlement, and therefore enforceable against anybody infringing that right. An erga omnes right
(a statutory right) can here be distinguished from a right based on contract, which is only enforceable
against the contracting party.

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 Internal Violence and International Humanitarian Law

emergencies while respecting rule of law. It invites the states to re-examine their legislation in
order to ensure protection of rule of law and other obligations31.

Ensuring greater protection for people caught up in internal violence

The guarantees afforded by the fundamental rules by states appear to be insufficient and
incomplete in light of the fact that they fail to cover all situations arising from internal tension.
Thus, to deal with situations and to cover all the all the areas of internal violence in a
comprehensive manner initiatives are being taken to encourage international community to adopt
a text inspired by International Humanitarian Law i.e. one that solemnly affirms the fundamental
rights of the individual in periods of internal violence and strife32.

Relevancy of International Humanitarian Law in situations of ``Internal Violence``33

The fundamental rules applicable in times of internal tension do not cover all the cases of serious
violations of humanitarian principles that frequently occur in these types of situations. A large-
scale sufferings are caused by mass arrests and suspension of judicial safeguards 34. The
authorities facing internal tensions and strife generally invoke security considerations as grounds
for arresting selected individuals from political circles, the labour movement and the media. The
periods of administrative detention are unduly extended and the detainees unfortunately are
sometimes ill-treated. In most of the cases authorities do not even announce their arrest. The aim
is to intimidate the population and people35.

The first United Nations Congress on the prevention of crime and the treatment of offenders
adopted a “standard minimum rules for the treatment of prisoners” on 30 August 1955. It laid
down certain rules for dealing with arbitrary arrest and extra judicial detentions to improve
31

http://www.crimesofwar.org/a-z-guide/gray-areas-in-international-humanitarian-law/ visited as on March

05,2013.
32
http://www.icrc.org/eng/resources/documents/misc/5kzk2z.htm

Article by Djamchid Momtaz. He is a professor at the Faculty of Law and Political Science of the
33

University of Tehran.
34
Frits Kalshoven, Assisting the Victims of Armed Conflict and Other Disasters.
35
http://www.un.org/rights/HRToday/hrconfl.htm visited as on March 04,2013

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 Internal Violence and International Humanitarian Law

conditions of detainees. The purpose was to provide a well-ordered penal arrangement so as to

preserve the human dignity of the detainee. They were updated by the UN general assembly in a
resolution entitled “Body of principles for the protection of all persons under any form of
detention or imprisonment” These are applicable without any distinction founded on race, color ,
sex, language etc. Further, irregularities in penal procedures are common in periods of internal
strife. Irregularities in penal procedure are common in periods of internal strife. The rights
enshrined in the law- of every detainee to receive a fair and public hearing before an independent
and impartial court is often ignored. These are restrictions on the rights of defence 36. There are
certain other flaws which are done by the governments of every state. Both the International
Covenant on civil and political rights and regional treaties for protection of Human Rights
contain provisions ensuring the fundamental rights of detainees during detentions and during
court proceedings37.

Widening scope of International Humanitarian Law to include Internal Violence

During a diplomatic conference called to adopt the new Geneva conventions in 1949, the
question was raised whether certain rules of International Humanitarian Law should be
broadened to include internal violence too. The discussions led to the fact that there was lack of
any precise definition which gave rise to conflicts among many members. They feared that its
field of application might extend to any act of force, including any form of anarchy or rebellion.
The conference’s refusal to list conditions for Article 3’s application enabled the International
Committee of Red Cross to declare itself in favor of the widest possible application. The
commentary on Article 3 published by the ICRC insists that such an interpretation in no way
limits the State’s right to exercise repression and in no way increases the power of rebel groups.
The ICRC took this view in keeping with its role of intermediary which it has played since 1921
in connection with internal violence, with aim of preserving human dignity and preventing the
fundamental rights of the individual from being violated. Article 3 lays down rules described by
the ICJ as “general principles of humanitarian law” They are apt to improve protection of people
caught up in internal tension: apart from the safeguards afforded by the principle of
inalienability, which are enshrined in the instruments of international Human rights law, this

36
http://www.geneva-academy.ch/ visited as on March 04,2013
37
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2065974 visited as on March 04,2013

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 Internal Violence and International Humanitarian Law

article prohibits the passing of sentences and the carrying out of executions without due process
of law. Since then several drafts have been prepared. The provisions of Article 75 of Protocol I
additional to the Geneva Conventions to strengthen protection for persons affected by internal
violence by providing them with, among other things, additional guarantees while in detention
and on trial. The declaration drafted in 1984 by Theodor Meron should be cited in particular.
Meron hoped that his declaration would lead in time to adoption of a new instrument codifying a
body of rules applicable in this type of situations. This is also the approach of th draft adopted in
1987 by the Norwegian Human Rights Institute and that drawn up in 1990 by the institute for
Human Rights at the University of Turku/Abo, in Finland, entitled: “Declaration of minimum
humanitarian standards. For his part, Hans-Peter Gasser, editor-in-chief of the International
Review of Red Cross, would prefer having a code of conduct to serve as a reminder of the
existing rules binding on the parties involved in situations of internal strife38.

In the Moscow Declaration of 1991, they renounced their right to depart from human rights
guarantees recognized by the legal instruments to which they are party. Then, at the Budapest
summit in 1994, they stressed the importance of a declaration setting out the minimum standards
applicable in all situations. Such a declaration, which they propose to have adopted in the UN
framework, will take account of the relevant rules of international human rights law and
international humanitarian law39.

CONCLUSION

Though the International Humanitarian Law and its application is confined only to a few areas of
conflicts, its scope and its application has widened in recent years. This has led international
community to rethink on the question of its application in situations of internal violence. The
internal violence is independent from any application of international humanitarian law in global
perspective but there is a need to re-look at this stance and widen its ambit to include the
http://www.jstor.org/discover/10.2307/25657683?
38

uid=307654471&uid=3737496&uid=2129&uid=2&uid=70&uid=2812208&uid=3&uid=67&uid=62&sid
=21101840960647 visited as on March 05,2013.
39
Md. Jahid Hossain Bhuiyan, Prof Louise Doswald Beck & Prof. Azizur Rahman Chowdhury,
International Humanitarian Law - An Anthology

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 Internal Violence and International Humanitarian Law

situations of internal violence too. This will not only help to deal with the situation but such
application of International Humanitarian law on internal violence will surely enhance and enrich
the fundamental rights of individuals which are violated by the governments. International
Humanitarian law would also help to ensure that governments must adhere to their obligations
towards its citizens. In recent years the International Humanitarian Law has enlarged its scope of
application and now includes even various treaties that outlaw specific weapons of war. These
conventions were largely developed because the weapons caused deaths and injuries long after
conflicts have ended. An estimated 98% of the victims are civilians including farmers tilling
their fields and children who find these explosives and become common victims 40. For these
reasons, the following conventions were adopted.

Recently, a conference organised by International Committee of Red Cross in Belgium also

analysed this issue. The conference was held at Brussels, called as the 13 th Bruges colloquium,
held on October 18 and October 19, 2012 invited researchers, university professors and experts
from governments and international organizations to discuss the need for expanding the scope of
application of International Humanitarian law in contemporary conflicts41. They considered
challenges relating to the scope of application of international humanitarian law.

The constant development and increasing complexity that have characterized forms of conflict
since the beginning of the 21st century raise many questions about the current scope of
application of international humanitarian law. They discussed the need to develop a
comprehensive understanding with regards to application of international humanitarian law in
changing times.

BIBLIOGRAPHY

Primary Source

- Md. Jahid Hossain Bhuiyan, Prof Louise Doswald Beck & Prof. Azizur Rahman
Chowdhury, International Humanitarian Law - An Anthology

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40

March 06,2013.
41
Ibid.

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 Internal Violence and International Humanitarian Law

- Article by Djamchid Momtaz. He is a professor at the Faculty of Law and Political

Science of the University of Tehran.

- Frits Kalshoven, Assisting the Victims of Armed Conflict and Other Disasters.

- ``How does law protect in war``, Volume 1, Outline of International Humanitarian Law,
ICRC

- David P. Forsythe, The Humanitarians, The International Committee of the Red Cross

- David Rieff, Humanitarianism in Crisis, A bed for the Night

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 Internal Violence and International Humanitarian Law

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