The principle of responsibility and the rights of victims in armedconflicts
The obligations created by the violations of international humanrightslaw and international humanitarianlaw, ensure that the criminals should be charged for their crimes. As stated by the Secretary General of the UN, the rule of law implies that “For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international humanrights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” 21
the drafting and adoption of the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of HumanRights and Serious Violations of International HumanitarianLaw 2 (hereafter Principles and Guidelines). From 2001-2006, I had the opportunity to participate in this process directly, being present during all the consultative meetings as well as other formal and informal consultations. This initiative was part of the standard setting work of REDRESS. At the time, I was also in charge of other initiatives, including lobbying for victims’ rights at the International Criminal Court (ICC) preparatory committees and the establishment of its Trust Fund; conducting research on thematic issues like the right to reparation; and representing victims of torture seeking remedies before national and international fora. While these undertakings were closely related to my work with the Principles and Guidelines, it was the casework program that mostly informed the content of my standard setting activities at the UN. As a lawyer representing torture survivors, I faced the innumerable legal and practical hurdles that victims have when seeking justice and other forms of reparation. From this experience, I learned that the lack of procedural avenues to access justice was a major obstacle to obtaining redress. The procedural aspects of reparation became a major focus of my strategy. During the drafting and adoption process
is only a technique for resolution of normative conflicts. 62 According to the maxim lex specialis derogate legi generali, a special norm will prevail over the general norm. Yet, the rule is silent as to what is specific and what is general; it does not provide any clear guidance to set apart the lex specialis from the lex generalis. 63 The most common example used to show the relevance of lex specialis is the violation of right to life during an armed conflict. While this example is apt, the principle is of less assistance when it comes to many other issues where both international humanitarianlaw and the international humanrightslaw have to be applied together. For instance, in a non-international armed conflict where there is no agreed status of combatant and there is a potential violation of the right to life, international humanitarianlaw becomes less clear making the application of lex specialis even more difficult. 64 Perhaps due to the difficulty in distinguishing the lex specialis and the lex generalis, the maxim appears to have limited use when dealing with situations of detention during armedconflicts. 65 Hence it can be said that in specific circumstances like that of violation of right to life in an armed conflict, the principle of lex specialis adequately addresses the interplay between the international humanitarianlaw and the international humanrightslaw, however it is of less assistance in dealing with many other complex scenarios that might arise during an armed conflict. 66
5 See Article 37, ILC Articles on State Responsibility, op. cit. (note 1). Principle 25 of the draft Basic Principles and Guidelines (op. cit., note 2) sets out an extensive list of possible forms of satisfaction and gua- rantees of non-repetition. These include the cessation of continuing violations; the verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten the safety of the victim, witnesses, or others; the search for the bodies of those killed or dis- appeared and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families and communities; an official declaration or a judicial decision restoring the dignity, reputation and legal and social rights of the victim and of persons closely connected with the victim; an apology, including public acknowledgement of the facts and acceptance of responsibility; judicial or administrative sanctions against persons responsible for the violations; commemorations and tributes to the victims; the inclusion of an accurate account of the violations that occurred in international humanrights and humanitarianlaw training and in educational material at all levels; as well as measures for the prevention of the recurrence of violations.
The characteristics of wars change over time; today wars are increasingly fought within states, rather than between states. The concept of ‘new wars’ also involves, inter alia, non-state actors such as terrorists and rebels, who are less likely to obey international humanitarianlaw. 1 Mary Kaldor, one of the key thinkers of new wars, emphasises current wars impact most heavily on civilians. 2 War and armed conflict are often regarded as synonymous terms. Whereas war is understood as two or more nations engaging in armed battles, “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”. 3 In modern wars and armedconflicts children are extensively affected and also actively involved. Since 1990, it has been estimated that 90 per cent of deaths due to armedconflicts around the world have been caused to civilians and 80 per cent of these were caused to women and children. 4 Considering the vulnerable nature of children, they are highly likely to be deeply affected by armed conflict. They are exposed to challenging circumstances as well as they become the direct victims of conflicts. In conflict situations, not only are their lives at risk but they are also subject to psychological and social harm, which affects their development into adulthood and can result in a new generation of highly unstable characters. Children suffer not only from the lack of basic needs, such as food and shelter, but also from violence and exploitation. 5 The overall wellbeing of children is in danger during the violence, the insecurity and the mass instability of armedconflicts. Boys and girls are recruited to armed forces or armed groups, either forcedly or voluntarily – which often means that a child does not have any other option. 6 Recovery from the experiences of armedconflicts can, in
may not claim neutrality,” 52 at least in relation to violations of the prohibition on the use of force outside Chapter VII of the UN Charter. 53
A different development can be observed under Common Art. 1 GC I-IV. The understanding of the guardian function of states, which was at first restricted to their organs and to individuals under their jurisdiction, was broadened to include a duty to take positive measures and ensure compliance with the Geneva Conventions by other states and by violent non-state actors. 54 This interpretation has been developed by way of an interpretation of Common Art. 1 GC I-IV on the basis of subsequent practice: Although the Pictet Commentary of 1952 already points in the direction of an erga omnes effect, 55 there are no indications in the travaux préparatoires that such an understanding was already envisaged. 56 Likewise, the re-inclusion of the wording in subsequent treaties cannot be seen as pertinent subsequent agreements according to Art. 31 para. 3 lit. a) VCLT, since no explicit discussions about such an understanding took place. 57 Accordingly, there are still voices in the literature which even doubt the binding force of the provision. 58 However, starting with the Teheran Conference on HumanRights in 1968 59 and promoted by the 1970 Barcelona Traction case, corresponding state practice unfolded and was supported by further jurisprudence 60 according to Art. 31 para. 3 lit b) and Art. 32 VCLT. 61 Moreover, the Security Council, 62 the General Assembly 63 and the HumanRights Council 64 contributed to the development by calling upon states to ensure respect for the Geneva Conventions by other contracting states. 65
IV. E VALUATING E NFORCEMENT
A. Deconstructing the Interpretive Reference Approach
The previous section offers an overview of the varied approaches that the Commission and Court have adopted when adjudicating cases that arise from armed conflict. This analysis demonstrates a number of charac- teristics of the Court and the Commission’s treatment of the intersections between HRL and IHL. First, the Inter-American System has explored two general approaches over the years when confronted with the intersec- tion. The more controversial approach, the direct application of IHL, was initially favored and ardently defended by the Commission in early cases. Yet, eventually, the Court determined that for a number of reasons rooted in the competence rationae materiae of the judicial organs of the regional system, it fell outside of the jurisdiction of the Inter-American System to directly find violations of IHL had been committed by states. Thus, the Court determined that the Inter-American System should offer no official pronouncement on whether IHL had been violated by States. The less controversial approach, which raises fewer concerns regarding the jurisdic- tion of the System, is the interpretive reference approach to employment
In relation to the second research question, it should be noted that the protection of journalists and media facilities under IHL is insufficient, although it is equivalent to the highest possible protection available, namely that of civilians and civilian objects. Therefore, there should be a special status for protection for journalists. Consequently, it is to recommend that in addition to the existing provisions in IHL, a special binding convention, with validity both for IAC and NIAC needs to be adopted. With regard to the third research question, the analysis of the research has shown that journalists and media facilities are not effectively protected because the de facto protection differs significantly from the granted de jure protection. This is all the truer for female journalists who are even less protected than journalists in general – both de jure and de facto. Hence, it is very important to adopt a binding legal framework specifically protecting all journalists and therefore also including special provisions that guarantee the safety of women journalists. The regulations should also provide for an enforcement mechanism. The adoption of a comprehensive international convention on the safety of journalists and protection of free media, both in times of conflict and peace, is the consequent recommendation. This convention should also include an independent body that monitors the implementation of the convention, for instance a committee on the safety of journalists and protection of free media. 400 Member states should be obliged to hand in periodical reviews on the national situation, which are reviewed by the committee. Moreover, there is a need for a communications procedure, which allows individuals and civil societies to submit complaints regarding specific rightsviolations to fight the pervasive impunity of attacks against journalists and media facilities.
Contemporary wars and conflicts have been complex in nature. The focus on the study of nature and consequences of conflicts was put forward by the United Nations Organization which brought out a twist in the analysis of conflicts. It is true that every international community has some or the other interest in every conflict, may be because no conflict these days are in isolation. In such situation the role of United Nation becomes very important to make sure every party is satisfied with decisions when it comes to war. To look after the conduct of the parties during a conflict, International organizations have developed certain laws which guarantee human safety to a large extend. One such law is International HumanitarianLaw or the Law of Armed Conflict; basically it regulates the conduct of armedconflicts. Its basic constituent is the Geneva conventions followed by subsequent treaties, case law and customary international law . It also deals with the responsibilities of the parties involved which may include neutral nations and individuals in warfare. Its violations are known as war crime for those nations who are bound by appropriate treaties. There are also other customary unwritten rules of war as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. International humanitarianlaw operates on a strict division between rules applicable in international armed conflict and those relevant to armedconflicts not of an international nature.
Although disciplinary measures are not sufficient to remedy serious violations of international humanitarianlaw, they are necessary and useful inasmuch as they enable the leaders of a group to react in a timely way to violations. These measures can take various forms, such as a note to file, a warning, demotion or dismissal. They can also involve the assignment of extra duty or the withdrawal of the soldier’s weapons or uniform. In practice, they sometimes also include imprisonment and corporal punishment, including capital punishment. All these measures should naturally be taken in conformity with humanrights standards. 17 Disciplinary measures focus on the status of the person concerned within the group hierarchy and can thus have a significant deterrent effect. They are the concrete expression of the reaction by the group’s hierarchy and signal to other group members that prohibited conduct will not be tolerated, thus quite possibly preventing further violations from being committed in the future. Disciplinary measures are also very often the only means of sanctioning violations while a conflict is under way, since criminal prosecution requires more time and more resources. If such disciplinary action is to be effective and is to prevent further violations it must be severe enough and must be made public 2 two conditions that are sometimes difficult to fulfil and to reconcile in actual practice. 18 Simple rules laid down in writing and stating from the outset the penalty to be paid in the event of violation help to make the hierarchy’s response predictable, with a view to
Secondly, given that non-international armedconflicts are not inter-State in nature, legal logic points to the conclusion that reparations should be seen as being owed directly to individual victims. One might take a few different views on this, but none seems conceptually as reasonable as an individual rights perspective. For example, it might be argued that the law of non- international armed conflict, though speaking to the relationship between States and non-State groups, in fact remains legally inter-State, with the rights created thereunder vesting only in other States that have contracted to observe these rules in non-international conflicts. Indeed, as noted above, the text of those provisions specifically designed for non-international armedconflicts does not use the language of individual ‘rights’. However, a right to compensation (as a specific form of reparations) for violations of rules of this nature would not ordinarily vest in non- injured States, but could only be claimed thereby in the interest of injured States (of which there would be none where the victims are nationals of the violating State) or the beneficiaries of the obligation breached (i.e. individual victims). 129 It would thus seem more reasonable to conclude
45 European Parliament resolution of 26 April 2007 on the Annual Report on HumanRights in the
World 2006 and the EU’s policy on the matter (2007/2020(INI)), OJ C 74E, 20.3.2008, 753–775, para 137: “Reiterates the importance of EU internal policy promoting adherence to international humanrightslaw and the need for Member States to legislate in a way consistent with, inter alia, the obligations arising out of the Geneva Conventions, the Convention against Torture, the Genocide Convention and the Rome Statute of the ICC”; European Parliament resolution of 8 May 2008 on the Annual Report on HumanRights in the World 2007 and the European Union’s policy on the matter (2007/2274(INI)), OJ C 271E of 12.11.2009, 7–31, para. 144; European Parliament resolution of 17 November 2011 on EU support for the ICC: facing challenges and overcoming difficulties (2011/2109(INI)), OJ 2013/C 153 E/13, paras. 16 and 20: “Takes note of the Cooperation and Assistance Agreement between the EU and the ICC; calls on the EU Member States to apply the principle of universal jurisdiction in tackling impunity and crimes against humanity, and highlights its importance for the effectiveness and success of the international criminal justice system”.
A key question with respect to visual recognition of humanrightsviolations from real-world images arises: how can this structured visual knowledge be gathered? The crucial aspects of such unique image database are the origin and the verification of image samples. For this reason, and in order to obtain an adequate number of verified real-world images depicting humanrightsviolations, we turn to non-governmental organizations (NGOs) and their public repositories. The first NGO considered is HumanRights Watch  which offers an online media platform 1 capable of exposing humanrights and international humanitarianlawviolations in the form of various media types such as videos, photo essays, satellite imagery and audio clips. Their online repository contains 9 main topics in the context of humanrightsviolations (arms, business, children’s rights, disabilities, health and humanrights, international justice, LGBT, refugee rights, and women rights) and 49 subcategories. In total, we download 99 available video clips from their online platform. After that, preliminary image samples are being recorded for every video clip with a ratio of 10–one image out of ten frames is recorded. This is done in order to obtain images distinctive enough on a frame to frame basis. Next, all the images that do not correspond to the definition of the human right violation category (mostly the interview parts of the clips) are manually removed. Images with low quality (very blurry or noisy, black-and-white), clearly manipulated (added text or borders, or computer-generated elements) or otherwise unusual (aerial views) are also removed. One considerable drawback in the course of that process is the presence of a watermark in most of the video files available from that platform. As a result, all the recorded images that originally contained the watermark had to be cropped in a suitable way. Only colour images of 600 x 900 pixels or larger were retrieved after the cropping stage. In addition to those images, all photo essays available for each topic and its subcategories are added, resulting in 342 more images to the final array. The entire pipeline for collecting and filtering out the images from HumanRights Watch is depicted in Figure 3.4.
should further seek to clarify the law on this point and encourage countries to agree that IHRL applies in these circumstances, not IHL. Under the laws of IHRL, use of UCAVs and LARs to carry out targeted killings would be prohibited as a violation of the right to life, the right to due process, the right not to be tortured, and the right to personal security. Arguably, even if IHL were to apply, their use affecting civil- ians could trigger violations of the right not to be tortured and the right to personal security under IHRL, which still applies in times of war. This has tremendous implications for the current War on Terror, and would make the use of such weapons illegal in most of the in- stances in which they are currently being used.
Kashmir is a key dispute between India and Pakistan since 1947. Each country claims Kashmir as a part of its territory. Since 1989, Kashmiri people took the violent way against India by supporting the merger of the state with Pakistan. To control the violent nature of the Kashmiri’s, more than 700,000 troops were deployed by India in the state. Most of the people stipulated that the accession to India was to be ratified by plebiscite. All this resulted grave humanrightsviolations in the state. There have been repeated cases of violation of the Geneva Convention in the state. Indian security forces have consistently violated the humanitarianlaw and not often comply with its provisions regarding treatment of prisoners of war. They are involved in thousands of rape cases and custodial killings. In the eyes of India, Kashmiri people are terrorists and have even extended shoot-at-sight powers to its security forces. The Terrorist and Disruptive Act (TADA), Jammu and Kashmir Public Safety Act, National Security Act, Armed Forces Special Powers Act and Prevention of Terrorist Act (POTA) are in violation of the International humanitarianlaw. The total killings in the state are recorded as more than 90000, Custodial killings are almost 7000 and rape cases are recorded as more than10000. The terrorism in the state increased the number of orphans. As many as
The ongoing conflict in Yemen, which is shaped by the Shia-Sunni regional rivalry through the opposition between the two local powerful states Iran and Saudi Arabia, illustrates that. More precisely, the Houthi movement is a Shia armed group, indirectly supported by Iran, which fights against the Yemenite government and is military targeted by the Saudi-Arabian-led coalition since 2015. As demonstrated by the Houthi's case, these armed groups' legal obligation to follow international humanitarianlaw as well as humanrightslaw is largely disrespected in practice. Humanrightsviolations committed by the Houthis can be classified in four categories: attacks against civilian facilities; use of anti- personnel landmines; recruitment of child soldiers; arbitrary arrests. Notably, the Houthi endangered civilians in areas they controlled by launching attacks from the vicinity of school, hospitals, and homes, exposing residents to attack by pro-government forces, including aerial bombing by the Saudi-led coalition. In November 2016, they carried out at least 45 unlawful attacks in Ta’iz, killing and injuring civilians. Although they have been engaged, since 2014, with Geneva Call regarding the use of anti-personnel landmines and child soldiers, in 2016, the Houthi placed anti-personnel landmines that caused civilian casualties 42 . In addition, as of June 2016, it was reported that the Houthi were responsible for 72% of the 762 verified cases of recruitment of child soldiers during the conflict 43 . And the case of the Houthis is only one example among many others.
effect have been in relation to civil and political rights. Until recently, it was not possible to bring an individual com- plaint in relation to rights contained in the International Covenant on Economic, Social and Cultural Rights. 19 The entry into force of the Optional Protocol to the Covenant now allows for this possibility, but it remains to be seen how the Committee on Economic, Social and Cultural Rights will deal with such situations. 20 These factors all cul- minate in a gap in effective legal protection of subsistence rights during armedconflicts. Whilst some NSAGs take it upon themselves to provide public services and to essen- tially fulfil some humanrights on a de facto basis, there ex- ists a legal lacuna. A correlative of this is an inequality in humanrights protection. Victims living in an area con- trolled by the state may still be able to receive redress for their humanrightsviolations by bringing a complaint dir- ectly against the state. For those living in NSAG-controlled areas, depending on the situation on the ground and the ef- forts that states have made in securing humanrights enjoy- ment despite the control of the NSAG, this may not be possible. Individuals suffering the effects of severe humani- tarian crises may therefore be left with no way of accessing essential materials. Despite laudable efforts by humanitarian aid organisations to deliver materials to those in need, and the humanitarian norms prohibiting the restriction of their access to areas in need of essential materials, 21 some areas remain rife with crisis. For these reasons, more measures need to be taken to try to achieve a rounder, more compre- hensive protection of humanrights.
humanrightslaw is not entirely displaced by humanitarianlaw during times of armed conflict, but, again, humanitarianlaw prevails in event-specific cases of conflict.
The event-specific decision rule is attractive in part be- cause it adopts the simplicity of the Displacement Model, but in a more fine-grained manner. It allows humanrightslaw to re- main applicable in all but those specific situations in which there is direct conflict between the two bodies of law. When the two bodies of law do conflict, it provides a clear and straight- forward decision rule: displace humanrightslaw with humani- tarian law. Yet again the simplicity comes at a cost. Event- specific displacement denies that humanrightslaw may be bet- ter designed to regulate certain hostile situations. It is there- fore not well suited to the increasingly common situations in which armed conflict takes place outside the traditional battle- field. Moreover, by always displacing humanrightslaw it comes into conflict with humanitarianlaw, this approach could deny jurisdiction to humanrights treaty-based judicial bodies in cases in which a State allegedly violated its humanrights obligations.
T he conclusion th at the humanrights obligations incum bent upon international organisations are limited to the ‘minimum com m on denom inator’ o f customary law remains, to say the least, disturbing. However, the argum ent that humanitarian and hum an rightslaw treaty standards should bind the U N ipso facto appears to clash with the consensualist foundations o f contem porary international law: treaties to which an international organisation is n o t a party are res inter alios a c ta f1 I t is certainly no coincidence th at the ICJ in the Interpretation o f Agreement case, w hen listing the sources o f binding obligations for international organisations, only m entioned the agreements to which they are parties.102 While even the m ost rigid consensualist would accept that there is one category o f treaties, i.e. constituent instruments, that bind international organisations although they are n ot parties to them , this still seems to be a logical exception rather than a falsification o f the consensualist principles. As in the case o f custom, it w ould be similarly ironic if the marginalisation o f international organisations from the international legal process were to result in an outright exemption from certain obligations. M oreover, as Schermers and Blokker appropriately observed, ‘Their [international organisations’] general abstention from becom ing such parties cannot therefore be interpreted as a desire n o t to be bound. In considering the question w hether an international organization is subject to rules o f treaty law, one cannot start from the hypothesis that this is n o t the case unless the organization expressly bound itself.103 A ‘proper’ consensualist and statist approach, in other words, w ould also imply that international organisations are bound by certain treaty standards, since after all it is the consent o f states that is the basis o f the whole system.
133. Some States have different investigative arrangements in place depending on whether the military is acting in its own territory or abroad, for example as part of a multi-national coalition, or under UN or regional organisation auspices. Whether a criminal offence is committed in or outside a State’s territory may affect the capacity of an investigative authority (other than a commander) to act, or act promptly, where, for example, such authority is not deployed alongside the armed forces. It may also raise questions as to the appropriate jurisdiction to investigate. These and other similar issues that would arise in extraterritorial operations should be considered prior to an armed conflict or deployment to ensure that investigations can be adequately conducted, in order to preclude impunity and safeguard the rights of suspects, victims, and witnesses.