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The international legal framework in humanitarian areas
The international legal framework applicable in armed conflict is primarily composed of three interrelated and mutually reinforcing sets of rules:
a) International Humanitarian Law;
b) International Human Rights Law;
c) International Refugee Law.
While international humanitarian law regulates the protection of persons and the conduct of hostilities in armed conflict, international human rights law imposes standards that governments must abide by in their treatment of persons both in peacetime and war. International refugee law focuses specifically on protecting persons who have fled their country due to persecution or other serious violations of human rights or armed conflict.
Although the formulation of the respective rules and their applicability might differ, the common objective of these legal regimes is to protect human life, health and dignity. Underlying all three bodies of law is the principle of non-discrimination in the enjoyment of rights, which prohibits states from distinguishing between persons based on grounds such as: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Human rights are founded on respect for the dignity and worth of each person. International human rights law is a set of international rules, established by treaty or custom, on the basis of which individuals and groups can expect and/or claim certain behavior or benefits from governments. Human rights law therefore places an obligation on states to act in a particular way and prohibits states from engaging in specific activities. An important function of human rights law is to enable individuals and groups to take positive action to redress violations against their internationally recognized rights.
Human rights treaties have been developed both internationally, usually under the auspices of the United Nations, or regionally (Organization of American States (OAS), Organization of African Unity (OAU, now the African Union), and the Council of Europe).
International human rights law is valid in all circumstances and at all times, including situations of armed conflict. However, in emergency situations, states parties to certain international treaties may exceptionally derogate (temporarily suspend their obligations) from certain civil and political rights under strictly defined circumstances.
There are nevertheless certain rights that can never be suspended - not even in war. The International Covenant on Civil and Political Rights provides that the following rights may never be derogated from:
• The right to life;
• The prohibition of torture or cruel, inhuman or degrading; treatment or punishment;
• The prohibition of slavery and servitude;
• The prohibition of retroactive application of criminal law;
• The right to freedom of thought, conscience and religion.
Most human rights treaties, among them the International Covenant on Economic, Social and Cultural Rights or the Convention on the Rights of the Child, do not provide for the possibility of derogation at all.
Typically, an armed conflict will result in the violation of a wide range of human rights of civilians. The right to life will certainly be violated, as well as the right to liberty and security of person and often, the right not to be tortured. Probably there will be grave abuse of economic, social and cultural rights, for instance in the context of conflict-induced humanitarian emergency. What is more, armed conflict is often caused by and entails widespread discrimination – whether on racial, ethnic, religious or other grounds.
Very often women and children will suffer disproportionately and will be specifically targeted for abuse and attack.
International refugee law has been developed to protect and assist individuals who have crossed an international border and are at risk or victims of persecution in their country of origin.
International refugee law prohibits the forcible return of a refugee to his or her country of origin and provides basic human rights guarantees during their stay in the country of asylum.
Not everyone crossing an international border qualifies for refugee status. According to Article 1 of the 1951 Convention relating to the Status of Refugees:
A refugee is a person who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a social group or political opinion, is outside the country of his origin and is unable or unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Refugee protection does not extend to persons who have committed a crime against peace, a war crime or a crime against humanity; a serious non-political crime outside the country of refuge; or acts contrary to the purposes and principles of the United Nations. While, in such situations, refugee law might not be applicable, the protection provided by human rights and humanitarian law remains in place.
Humanitarian assistance in situations of armed conflict is primarily regulated by international humanitarian law. In international armed conflict, the basic rule is that a state must accept relief actions for the civilian population of any territory under its control (other than occupied territory, mentioned below) when the population is not adequately supplied and when relief, which is humanitarian and impartial in nature, is available. Refusing a relief action is thus not a matter of discretion and agreement could be withheld only for exceptional reasons. In any event, offers of relief shall not be regarded as interference in the armed conflict or as unfriendly acts.
The basic rule with respect to occupied territory is that the occupying power has the duty of ensuring the food and medical supplies of the population and that it should bring in the necessary foodstuffs, medicine and other articles if the resources of the occupied territory are inadequate. If, however, the whole or part of the population in an occupied territory is inadequately supplied, the occupying power must agree to relief schemes and must facilitate them by all means at its disposal.
Similar rules apply in non-international armed conflicts as well. Humanitarian agencies may offer their services, and the state involved must, in principle, allow humanitarian assistance.