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Complementarity between the ICRC and the United Nations and international humanitarian law and international human rights law, 1948–1968

Published online by Cambridge University Press:  24 October 2013

Katharine Fortin
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Abstract

This article shows that between the drafting of the Universal Declaration of Human Rights in 1948 and the Tehran conference in 1968, international human rights law and international humanitarian law and their respective guardian institutions, the United Nations (UN) and the International Committee of the Red Cross (ICRC), were not so conceptually far apart as is sometimes suggested. Its purpose is to give further legitimacy to the role of human rights law in armed conflict and show that cooperation between the UN and the ICRC has a long history.

Keywords

international human rights lawinternational humanitarian lawICRCUnited Nationsrelationshiparmed conflictcomplementarity
Type
In Folio
Information
International Review of the Red Cross , Volume 94 , Issue 888: ICRC: 150 years of Humanitarian Action , December 2012 , pp. 1433 - 1454
Copyright
Copyright © International Committee of the Red Cross 2013 

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References

1 For a comprehensive account of the weight of legal authority from the International Court of Justice and human rights treaty bodies confirming that human rights law applies during armed conflict, see UN Commission on Human Rights (UNCHR), ‘Working Paper on the Relationship between Human Rights Law and International Humanitarian Law by Françoise Hampson and Ibrahim Salama’, UN Doc. E/CN.4/Sub.2/2005/14, 21 June 2005. It is noted that in its Fourth Periodic Report to the UN Human Rights Committee (HRC), the United States, previously a long-standing objector to the proposition that international human rights law applies during armed conflict, confirmed its view that international human rights law and the law of armed conflict are ‘in many respects complementary and mutually enforcing’ in times of armed conflict: US Fourth Periodic Report to the HRC, 30 December 2011, para. 507. Israel, the other long-standing objector in this regard, maintains the position that international human rights law does not apply during armed conflict. See Concluding Observations of the HRC on Israel's Initial Periodic Report to the HRC, UN Doc. CCPR/C/79/Add.93, 18 August 1998, para. 10; UNHRC, Concluding Observations of the HRC on Israel's Second Periodic Report, UN Doc. CCPR/CO/78/ISR, 21 August 2003, para. 11; and Concluding Observations of the HRC on Israel's Third Periodic Report to the HRC, UN Doc. CCPR/C/ISR/CO/3, 3 September 2010, para. 5.

2 See, for example, Kolb, Robert, ‘The relationship between international humanitarian law and human rights law: a brief history of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions’, in International Review of the Red Cross, 38th year, No. 324, September 1998, p. 409Google Scholar; Krieger, Heike, ‘A conflict of norms: the relationship between humanitarian law and human rights law in the ICRC customary law study’, in Journal of Conflict and Security Law, Vol. 11, No. 2, 2006, p. 265Google Scholar; and Droege, Cordula, ‘The interplay between international humanitarian law and international human rights law in situations of armed conflict’, in Israel Law Review, Vol. 40, No. 2, 2007, p. 310Google Scholar.

3 Universal Declaration of Human Rights (UDHR) adopted 10 December 1948, UNGA Res. 217 A(III).

4 Many authors see the latter event as the first occasion on which the two bodies of law were recognised to have some conceptual overlap.

5 Modirzadeh, Naz K., ‘The dark sides of convergence: a pro-civilian critique of the extraterritorial application of human rights law in armed conflict’, in Blue Book, Vol. 86, May 2010, p. 352Google Scholar.

6 International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UNTS 31; ICRC, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 UNTS 85; ICRC, Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135; ICRC, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

7 H. Krieger, above note 2, p. 266; Schindler, Dietrich, ‘The International Committee of the Red Cross and human rights’, in International Review of the Red Cross, 19th year, No. 208, January–February 1979, p. 7Google Scholar; Draper, G. I. A. D., ‘The relationship between the human rights regime and the law of armed conflict’, in Israel Yearbook on Human Rights, Vol. 1, 1971, pp. 191–192Google Scholar; Schindler, Dietrich, ‘Human rights and humanitarian law: interrelationship of the laws’, in American University Law Review, Vol. 31, No. 935, 1981–1982, pp. 935–937Google Scholar; Droege, Cordula, ‘Elective affinities? Human rights and humanitarian law’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 503Google Scholar; Robertson, A., ‘Humanitarian law and human rights’, in Swinarski, Christophe (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Martinus Nijhoff, The Hague, 1984, pp. 793–795Google Scholar; C. Droege, above note 2, pp. 312–313; R. Kolb, above note 2, p. 409; Doswald-Beck, Louise and Vité, Sylvain, ‘International humanitarian law and human rights law’, in International Review of the Red Cross, Vol. 33, No. 293, 1993, pp. 95–105Google Scholar.

8 L. Doswald-Beck and S. Vité, above note 7, p. 95.

9 G. I. A. D. Draper, above note 7, p. 191. Ben-Naftali and Shany also note that ‘the principle of humanity underlying IHR law, was never absent from IHL, as typified by the Martens Clause. … Thus, while there is no denying the distinct historical roots of these two regimes, it is equally difficult to refute that the seed that would eventually father the law of human rights was already planted in IHL’. See Ben-Naftali, Orna and Shany, Yuval, ‘Living in denial: the application of human rights in the occupied territories’, in Israel Law Review, Vol. 37, No. 1, 2003–2004, pp. 43–44Google Scholar.

10 See ‘Working Paper on the Relationship between Human Rights Law and International Humanitarian Law by Françoise Hampson and Ibrahim Salama’, above note 1, pp. 12–13; D. Schindler, ‘Human rights and humanitarian law’, above note 7, p. 936; R. Kolb, above note 2, p. 409.

11 L. Doswald-Beck and S. Vité, above note 7, pp. 101–102; D. Schindler, ‘The International Committee of the Red Cross and human rights’, above note 7, p. 6.

12 For example, the Magna Carta (1215), Bill of Rights (1689), Virginia Declaration of the Rights of Man (1776), American Declaration of Independence (1776), and French Declaration of the Rights of Man and of the Citizen (1789).

13 C. Droege, above note 2, p. 314; D. Schindler, ‘Human rights and humanitarian law’, above note 7, p. 936.

14 R. Kolb, above note 2, pp. 411–412; D. Schindler, ‘The International Committee of the Red Cross and human rights’, above note 7, p. 7.

15 R. Kolb, above note 2, p. 412. See also Draper, G. I. A. D., ‘Humanitarian law and human rights’, in Meyer, Michael and McCoubrey, Hilaire (eds), Reflections on Law and Armed Conflicts: The Selected Works on the Laws of War by the Late Professor Colonel G. I. A. D. Draper, OBE, Kluwer Law International, The Hague/ Boston/ London, 1998, p. 143Google Scholar.

16 D. Schindler, ‘Human rights and humanitarian law’, above note 7, p. 936; H. Krieger, above note 2, p. 266; C. Droege, above note 2, p. 314. On the drafting of the UDHR, see, in particular, R. Kolb, above note 2, pp. 412–413.

17 N. K. Modirzadeh, above note 5, p. 352.

18 Prud'homme, Nancie, ‘Lex specialis: oversimplifying a more complex and multifaceted relationship?’, in Israel Law Review, Vol. 40, No. 2, 2007, pp. 359–360CrossRefGoogle Scholar.

19 Ibid., p. 359; R. Kolb, above note 2, p. 410; D. Schindler, ‘The International Committee of the Red Cross and human rights’, above note 7, p. 7. It is interesting to note that the idea that the UN should distance itself from the laws of war pre-dates World War II and the establishment of the UN. This is seen in the publication of an anonymous article in the 1920–1921 first edition of the British Yearbook of International Law which set out a comprehensive set of reasons why (i) the laws of war should not be rewritten and (ii) the laws of war should not be a project with which the League of Nations should be associated. Its reasoning for the latter argument was based on the fact that the ‘new machinery’ of the League of Nations should be used not to ‘solve the old problems connected with the codification of the laws of war … [but] rather [for] the building up of a new body of international law for time of peace’ (pp. 114–115). It also posited the rather heavy allegation that ‘the failure of international law to provide solutions to the problems of peace ha[d] been at least in part due to the fact that the attention of writers and statesmen ha[d] always been diverted from the law of peace to the law of war’ (p. 115). The article went on to argue that it was only ‘by the development of the law of peace, rather than by renewing the attempts to codify the law of war, that a stable international system can be built up by the League of Nations’ (p. 116). It is clear that this article was influential in Great Britain because shortly after it was published there, it was republished by the Michigan Law Review, which described it as ‘one of the most illuminating and significant discussions of the subject that has appeared up to the present date’. Although it had apparently ‘attracted a great deal of attention in Great Britain’, the editors of the journal felt that the article had not attracted as much attention as ‘it deserves’ in the United States. It was republished in the Michigan journal ‘in the hope that a real service may be rendered by affording it wider publicity among those whose opinions will weigh heavily in influencing the decisions to be made’. Anonymous, ‘The League of Nations and the laws of war’, in British Yearbook of International Law, 1920–1921, pp. 110–124. Josef Kunz, writing in 1951, argued that the ‘dominating attitude’ to the laws of war – expounded in the anonymous article – continued to prevail after World War II. In his words: ‘the same neglect, indifference and apathy, the same hostility toward this subject, which so disastrously prevailed during the inter-war period, prevails again since the actual end of fighting in 1945. All the old arguments – the impossibility and futility of a revision of the laws of war, the “abolition” of war and, hence, the non-existence of the laws of war, the idea that any occupation with the laws of war would make “a bad impression on public opinion” – are repeated again … The United Nations, like the League of Nations, is again leading in this policy of the ostrich’. See Kunz, Josef, ‘The chaotic status of the laws of war and the urgent necessity for their revision’, in American Journal of International Law, Vol. 45, No. 37, 1951, pp. 39CrossRefGoogle Scholar and 42.

20 See R. Kolb, above note 2, p. 411, citing in footnote 7 the amendment proposed by the United Kingdom and adopted by the 17th International Conference of the Red Cross in Stockholm in 1948 which urges the ICRC, ‘in view of the non-political character of the constituent bodies of the International Red Cross, to exercise the greatest care in regulating [its] relationship with intergovernmental, governmental or non-governmental organisations’.

21 O. Ben-Naftali and Y. Shany, above note 9, p. 47.

22 See, for example, ibid., pp. 30–31; and D. Schindler, ‘Human rights and humanitarian law’, above note 7, p. 936.

23 See L. Doswald-Beck and S. Vité, above note 7, p. 112, who identify the Tehran conference as being ‘the true turning point’ and the ‘first time [that the United Nations] considered the application of human rights in armed conflict’. See also H. Krieger, above note 2, p. 266, who writes: ‘For several decades [after the drafting of the Geneva Conventions and the UDHR], it was generally considered that human rights law is not applicable in situations of armed conflict’. G. I. A. D. Draper, above note 15, p. 149, writes that the ‘confusion of the diametrically opposed regimes of human rights and the law of armed conflict [was] launched in the UN in 1968’. See also R. Kolb, above note 2, p. 419, who states: ‘it must be emphasized that this common front hardly existed before the adoption of Resolution XXIII by the International Conference on Human Rights’, in Tehran in1968.

24 C. Droege, above note 2, p. 314; N. Prud'homme, above note 18, p. 362.

25 A. Robertson, above note 7, p. 795.

26 H. Krieger, above note 2, p. 267.

27 C. Droege, ‘Elective Affinities?’, above note 7, p. 504.

28 See UNGA Res. 804 (VIII), 3 December 1953, and UNGA Res. 1312 (XIII), 12 December 1958, as cited in C. Droege, ‘Elective Affinities?’, above note 7, pp. 504–505.

29 C. Droege, above note 2, p. 314; see also G. I. A. D. Draper, above note 7, p. 195, where he writes: ‘I venture to suggest that the revision of the law of armed conflicts after the conclusion of the Geneva Conventions of 1949, and the Genocide Convention of 1948, had come perilously near to stagnation before the impact of the movement for the establishment of a regime of human rights was brought to bear upon it’. Of course, this proved to be only a temporary doldrums for international humanitarian law as the 1970s brought the successful drafting of the Additional Protocols.

30 A. Robertson, above note 7, p. 794.

31 O. Ben-Naftali and Y. Shany, above note 9, pp. 43–44; D. Schindler, ‘Human rights and humanitarian law’, above note 7, p. 936; G. I. A. D. Draper, above note 15, p. 149.

32 Several writers note that although the title of the resolution referred to human rights law, the body of the resolution refers only to international humanitarian law. See D. Schindler, ‘Human rights and humanitarian law’, above note 7, p. 937; and Doswald-Beck, Louise, ‘Human rights and humanitarian law: are there some individuals bereft of all legal protection?’, Proceedings of the Annual Meeting of the American Society of International Law, 2004, p. 354Google Scholar. The reason for this anomaly is not clear but is discussed by Aristidis Calogeropoulos-Stratis, ‘Droit humanitaire – Droits de l'Homme et victimes des conflits armés’, in Swinarski (ed.), above note 7, p. 659.

33 Respect for Human Rights in Armed Conflicts, UNGA Res. 2444 (XXIII), 19 December 1968. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I), 8 June 1977, 1125 UNTS 3 and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (AP II), 8 June 1977, 1125 UNTS 609.

34 Both Additional Protocols to the Geneva Conventions explicitly confirm the continued application of international human rights law in times of armed conflict. See in this regard, Art. 72 of AP I, which states that its provisions are ‘additional … to other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict’. See also the preamble to AP II, which recalls that ‘international instruments relating to human rights offer a basic protection to the human person’. The connections between international humanitarian law and international human rights law demonstrated by the two additional protocols are also seen in Art. 75 (fundamental guarantees) of AP I and Art. 6 (penal prosecutions) of AP II. The drafting of these articles is very clearly influenced by human rights provisions, in particular Arts. 14 and 15 of the International Covenant on Civil and Political Rights.

35 R. Kolb, above note 2, pp. 412–413, states: ‘The absence of any discussion of the problem of war can be explained by the general philosophy which prevailed within the United Nations at the time. There seemed to be a tacit but nevertheless general consensus that the Declaration was intended for times of peace, of which the United Nations was the guarantor’.

36 C. Droege, above note 2, p. 314.

37 H. Krieger, above note 2, p. 267.

38 See Article 4 of the draft International Covenant on Human Rights, set out in UNCHR, Report on the Commission on Human Rights, Supplement No. 1, Economic and Social Council Official Records, New York, 1948, p. 25Google Scholar. See Nowak, Manfred, U.N. Covenant on Civil and Political Rights, CCPR Commentary, N. P. Engel, Kehl am Rhein, 2005, p. 88Google Scholar.

39 Conceived from an early date to be a non-binding document, the UDHR was intended to have a moral rather than legal force. As such, unlike the draft Covenant – which in 1947 was written in parallel with the UDHR by the same individuals – the UDHR did not have any of the fundamental aspects required for a legally binding convention. When the two quite early drafts of these documents are compared, as they existed in 1947, it is notable that the Covenant of Human Rights already had a jurisdiction clause, a derogation clause, and limitation clauses. None of these appear even in the completed UDHR because it was never intended to provide that level of detail. Instead, its purpose was to provide broad over-arching principles of ‘rights’ that would provide guidance to states.

40 See note 60 below for details of Pilloud's attendance at the drafting sessions of the UDHR in 1947.

41 [translation from the original text in French by the editorial team]. Pilloud, Claude, ‘La Déclaration Universelle des Droits de l'Homme et Les Conventions Internationales Protégeant Les Victimes de la Guerre’, in Revue internationale de la Croix-Rouge, 31th year, No. 364, April 1949, p. 254Google Scholar. Original text: ‘Ajoutons encore que la Déclaration universelle ne prévoit pas de dérogations lors de circonstances exceptionelles comme les guerres, les troubles civils ou autres calamités; elle doit donc conserver sa valeur en tout temps et en tout lieu. C'est là un point important car, lors des travaux préparatoires, certaines propositions tendaient à prévoir de semblables dérogations’.

42 C. Droege, above note 2, p. 324.

43 Milanovic, Marko, ‘A norm conflict perspective on the relationship between international humanitarian law and human rights law’, in Journal of Conflict & Security Law, Vol. 14, No. 3, 2010, p. 460Google Scholar; and see G. I. A. D. Draper, above note 7, p. 198, who refers to an ‘awareness, universal among reflecting members of society, that respect for human rights is under maximum attack in times of war’.

44 The Magna Carta in 1215, the Bill of Rights in 1689, the Declaration of the Rights of Man and of the Citizen in 1789, the Virginia Declaration of Rights in 1776, the Declaration of Independence in 1776, and the Universal Declaration of Rights in 1948.

45 See Roosevelt's, EleanorStatement to the United Nations General Assembly on the Universal Declaration of Human Rights, 9 December 1948, in United States Department of State Bulletin, Vol. 19, 19 December 1948, p. 751Google Scholar, in which she writes: ‘Man's desire for peace lies behind this declaration. The realization that the flagrant violation of human rights by Nazi and Fascist countries sowed the seeds of the last world war has supplied the impetus for the work which brings us to the moment of achievement here today’.

46 C. Droege, above note 2, p. 314, citing UNGA Res. 804 (VIII), 3 December 1953.

47 Ibid., p. 314, citing UNGA Res. 1312 (XIII), 12 December 1958.

48 Ibid., pp. 314–315, citing UNSC Res. 237, 14 June 1967.

49 UNGA Res. 1353 (XIV), 21 October 1959; and UNGA Res. 1723 (XVI), 20 December 1961.

50 UNGA Res. 1972 (XVIII), 16 December 1963.

51 UNGA Res. 1949 (XVIII), 11 December 1963.

52 See Record of Security Council's 1233rd Meeting on 26 July 1965.

53 UNSC Res. 169 (1961), 24 November 1961.

54 See Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Vol. 15: Digest of Laws and Cases, 1949, p. 135.

55 Ibid., p. 135, footnote 7.

56 Lauterpacht, Hersch, International Law and Human Rights, Stevens & Sons, London, 1950, p. 36Google Scholar.

57 Lauterpacht's use of the term ‘fundamental rights’ raises the difficult question of whether some human rights should be understood to be more ‘fundamental’ than others.

58 While today there is a consensus that crimes against humanity can be committed in the context of both peace and war, in the years immediately following World War II this was more contentious. Certainly, the charter of the International Military Tribunal limited the tribunal's jurisdiction to crimes against humanity which were connected to war crimes. Bassiouni argues that the war-connecting link was required in order to legitimise the ‘creation’ of crimes against humanity in the Nuremberg Charter which were widely thought to be an extension of ‘war crimes’. However, it is noted that in 1950, the International Law Commission deemed the link to a conflict no longer to be a requirement. See Cherif Bassiouni, M., ‘Crimes against humanity’, in Cherif Bassiouni, M. (ed.), International Criminal Law, Martinus Nijhoff, The Hague, 1999, pp. 521–545Google Scholar.

59 See, for example, UNCHR, Summary Record of the Twenty-Eighth Meeting, UN Doc. E/CN.4/SR/28, 4 December 1947; UNCHR, Summary Record of the Thirtieth Meeting, UN Doc. E/CN.4/SR.30, 5 December 1947; UNCHR, Summary Record of the Thirty-Second Meeting UN Doc. E/CN.4/SR/32, 11 December 1947; UNCHR, Summary Record of the Thirty Third Meeting, UN Doc. E/CN.4/SR/33, 11 December 1947; UNCHR, Summary Record of the Thirty-Fourth Meeting UN Doc. E/CN.4/SR.34, 12 December 1947; UNCHR, Summary Record of the Thirty-Fifth Meeting UN Doc. E/CN.4/SR/35, 12 December 1947; UNCHR, Summary Record of the Thirty-Seventh Meeting, UN Doc. E.CN.4/SR.37, 13 December 1947; and UNCHR, Summary Record of the Forty-Third Meeting UN Doc. E/CN.4/SR./43, 17 December 1947.

60 See, for example, UNCHR, Summary Record of the Forty-Seventh Meeting, UN Doc. E/CN.4/SR.47, 1 June 1948; UNCHR, Summary Record of the Forty-Ninth Meeting, UN Doc. E/CN.4/SR.49, 2 June 1948; UNCHR, Summary Record of the Forty-Eighth Meeting, UN Doc. E/CN.4/SR.48, 4 June 1948; UNCHR., Summary Record of the Fifty-Eighth Meeting, UN Doc. E/CN.4/SR.58, 16 June 1948; UNCHR, Summary Record of the Sixtieth Meeting, UN Doc. E/CN.4/SR.60, 23 June 1948; UNCHR, Summary Record of the Sixty-Fourth Meeting, UN Doc. E/CN.4/SR.64, 17 June 1948; UNCHR, Summary Record of the Sixty-Seventh Meeting, UN Doc. E/CN.4/SR.67, 25 June 1948; and UNCHR, Summary Record of the Seventy-Fifth Meeting, UN Doc. E/CN.4/SR.75, 30 June 1948.

61 See note 60 above.

62 Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Geneva Convention Relative to the Protections of Civilian Persons in Time of War, Vol. 3, ICRC, Geneva, 1960, p. 12Google Scholar (emphasis added).

63 See also R. Kolb, above note 2, pp. 413–416, for an assessment of these records.

64 Swiss Federal Political Department, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2, Section B, p. 536Google Scholar.

65 Swiss Federal Political Department, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2, Section A, Committee II, p. 393Google Scholar. See also R. Kolb, above note 2, p. 414.

66 Swiss Federal Political Department, ibid., p. 780.

67 Ibid., p. 436.

68 See also the Danish delegation's request that a clause be inserted into Article 3 making clear that the wording should not be ‘interpreted in such a way as to deprive persons not covered by the provisions of Article 3, of their human rights’, ibid., p. 481.

69 At the closing ceremony, the Italian delegation stated that the drafters’ task had not been ‘to produce an ideal Convention, but one which would reconcile human rights with the requirements of war’. Swiss Federal Political Department, above note 64, p. 536Google Scholar.

70 R. Kolb, above note 2, p. 416.

71 ‘Proceedings of the Fifth Session of the American Society of International Law, Saturday April 30, 1949, at 10am’, in American Society of International Law Proceedings, No. 43, 1949, p. 128. See Cowles speaking to the proceedings of the American Society of International Law: ‘Whether or not it is logical, whether we believe that war is bad or that we should not have more of it, has nothing whatsoever to do with the existence of the international law of war. The law is here. It is very real. Incidentally, it is a part of human rights – human rights operating on the wartime scene’. See also Josef Kunz, who, citing and clearly agreeing with Cowles in two articles published in 1951, states: ‘I want to emphasize strongly the fact that the laws of war are a very important part of the problem of international protection of human rights. The new Geneva Conventions of 1949 stress the basis of human rights, of the dignity of the human personality’. See Josef Kunz, above note 19, p. 121; and Kunz, Josef, ‘Present-day efforts at international protection of human rights: a general analytical and critical introduction’, in American Society of International Law Proceedings, No. 45, 1951, p. 114Google Scholar.

72 Sir Hersch Lauterpacht was a member of the committee of experts that was gathered to draft a clause designed to repress violations of the Geneva Conventions. This group produced the draft articles that inspired the ‘grave breaches’ article which was common to all four Conventions. Geoffrey Best, War and Law Since 1945, Clarendon, Oxford, 1997, pp. 93–94.

73 UNCHR, ‘Human Rights, The Charter of the United Nations and the International Bill of the Rights of Man, Preliminary Report by Professor H. Lauterpacht’, UN Doc. E/CN.4/89, 12 May 1948.

74 Lauterpacht, Hersch, ‘The problem of the revision of the law of war’, in British Yearbook of International Law, Vol. 29, 1952, p. 362Google Scholar.

75 Lauterpacht, Hersch, ‘The limits of the operation of the law of war’, in British Yearbook of International Law, Vol. 30, 1953, p. 214Google Scholar.

76 Further support for this conclusion is found in the fact that shortly after the drafting of the Geneva Conventions, Joyce Gutteridge, one of the UK delegates who had attended the Diplomatic Conference, wrote that common Article 3 could be seen to impose ‘such obligations as will ensure, even in internal conflicts, the observance of certain fundamental human rights’. See Gutteridge, Joyce, ‘The Geneva Conventions of 1949’, in British Year Book of International Law, Vol. 26, 1949, p. 300Google Scholar.

77 C. Pilloud, above note 41.

78 Ibid., p. 258. [translation from the original text in French by the editorial team] Original text: ‘Nous voudrions souligner que leur coexistence ne présente aucun inconvénient. Au contraire, il est certain qu'il en résultera un renforcement des Conventions humanitaires puisque de nombreux principes qu'elles contiennent sont déclarés valables en tout temps et en tout lieu’.

79 O. Ben-Naftali and Y. Shany, above note 9, p. 47.

80 For cooperation between the UN and the ICRC on the issue of prisoners of war, see below.

81 UNGA Res. 193 (III) C, 27 November 1948.

82 UNGA Res. 288 (IV) B, 18 November 1949.

83 See above notes 60 and 61.

84 UNCHR, Report to the Economic and Social Council on the Seventh Session of the Human Rights Commission, Geneva, 16 April–19 May 1951, UN Doc. E/CN.4/640 (Claude Pilloud attending); UNCHR, Report to the Economic and Social Council on the Thirteenth Session of the Human Rights Commission, Geneva, 1–26 April 1957, UN Doc. E/CN.4/753 (Henri Coursier attending); UNCHR, Report to the Economic and Social Council on the Sixteenth Session of the Human Rights Commission, Geneva, 29 February–18 March 1960, UN Doc. E/CN.4/804 (Henri Coursier and Claude Pilloud attending); UNCHR, Report to the Economic and Social Council on the Nineteenth Session of the Human Rights Commission, New York, 11 March–5 April 1963, UN Doc. E/CN.4/857 (Henri Coursier attending); UNCHR, Report to the Economic and Social Council on the Twenty First Session of the Human Rights Commission, Geneva, 22 March–15 April 1965, UN E/CN.4/891 (Claude Pilloud and Serge Nessi attending); UNCHR, Report to the Economic and Social Council on the Twenty Third Session of the Human Rights Commission, New York, 20 February–23 March 1967, UN Doc. E/CN.4/940 (Serge Nessi and François de Reynol attending). It is noted that the ICRC's attendance at some of these meetings was likely also motivated by the discussion of war crimes on the agenda.

85 UNCHR, Declaration on the Right of Asylum, Comments of Non Governmental Organizations, Note by the Secretary-General, UN Doc. E/CN.4/794, 6 January 1960, pp. 2–3; UNCHR, Study of the right of arrested persons to communicate with those whom it is necessary for them to consult with in order to ensure their defence or to protect their essential interests, UN Doc. E/CN.4/836, 27 December 1962, p. 8.

86 Article 118 of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 states that ‘Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities’.

87 UNGA Res. 427 (V), 14 December 1950; UNGA Res. 804 (VIII), 3 December 1953.

88 UNGA Res. 804 (VIII), 3 December 1953 (emphasis added). See also UNGA Res. 910 (X) B, 29 November 1955, on the problem of ex-prisoners of the Korean War.

89 Ibid.

90 UNGA, ‘Respect for Human Rights in Armed Conflicts’, Report of the Secretary-General, UN Doc. A/7720, 20 November 1969; UNGA, ‘Respect for Human Rights in Armed Conflicts’, Report of the Secretary-General, UN Doc. A/8052, 18 September 1970.

91 A. Robertson, above note 7, p. 797.

92 G. I. A. D. Draper, above note 7, p. 191.

93 G. I. A. D. Draper, above note 15, pp. 141 and 149.

94 See The Red Cross and Human Rights, report prepared by the ICRC in collaboration with the Secretariat of the League of Red Cross Societies, October 1983, p. 27, which identifies three schools of thought: ‘integrationist’, ‘separatist’ and ‘complementarist’. The third, ‘complementarist’ theory advocated that human rights law and international humanitarian law were two distinct systems which complement each other. This is the way in which the relationship between the two bodies of law is today most commonly understood.

95 See Robertson, A., Human Rights in the World, Manchester University Press, Manchester, 1982, p. 225Google Scholar, where he states: ‘Our contention is that humanitarian law is one branch of the law of human rights, and that human rights afford the basis for humanitarian law’. It is noted that elsewhere Robertson's vision of the relationship between international humanitarian law and international human rights law seems to adhere more to the ‘complementarity’ thesis. See A. Robertson, above note 7, p. 802. The merging of the two bodies of law was also thought by some writers to be inherent in the General Assembly resolutions under the title ‘Respect for Human Rights in Armed Conflict’ and the texts of the Additional Protocols. See for example, G. I. A. D. Draper, above note 15, pp. 147 and 149. See also Suter, Keith D., ‘An enquiry into the meaning of the phrase “human rights in armed conflict”’, in Revue de droit pénal militaire et de droit de la guerre, Vol. 15, No. 3–4, 1976, pp. 397Google Scholar and 404.

96 See G. I. A. D. Draper, above note 15; and K. D. Suter, above note 95, p. 397. Suter is responding in particular to the writings and speeches of Sean MacBride, who he states regularly equated the phrase ‘human rights in armed conflict’ with the phrase ‘humanitarian international law of armed conflicts’.

97 G. I. A. D. Draper, above note 15, p. 143; K. D. Suter, above note 95, p. 398 ; Meyrowitz, Henri, ‘Le droit de la guerre et les droits de l'homme’, in Revue du droit public et de la science politique en France et à l'étranger, Vol. 5, 1972, p. 1059Google Scholar.

98 K. D. Suter, above note 95, pp. 406–410.

99 G. I. A. D. Draper, above note 15, pp. 143 and 149; K. D. Suter, above note 95, p. 407; H. Meyrowitz, above note 97, p. 1071.

100 See above note 1.

101 See for example, N. K. Modirzadeh, above note 5; O. Ben-Naftali and Y. Shany, above note 9; Dennis, Michael, ‘Non-application of civil and political rights treaties extraterritorially during times of international armed conflict’, in Israel Law Review, Vol. 40, No. 2, 2007, pp. 453–502Google Scholar; Heintze, Hans-Joachim, ‘On the relationship between human rights law protection and international humanitarian law’, in International Review of the Red Cross, Vol. 86, No. 856, 2004, p. 789Google Scholar; H. Krieger, above note 2; C. Droege, above notes 2 and 7; Campanelli, Danio, ‘The law of military occupation put to the test of human rights law’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 653Google Scholar.

102 Literature taking the view that the application of human rights law to situations of armed conflict should be restricted or scaled back varies greatly in degree and argument. For example, see the Israeli position set out in Israel's Second Periodic Report to the Human Rights Committee, UN Doc. CCPR/C/ISR/2001/2, 20 November 2001, para. 8; Hansen, Michelle A., ‘Preventing the emasculation of warfare: halting the expansion of human rights law into armed conflict’, in Military Law Review, Vol. 194, Winter 2007, pp. 8Google Scholar, 26, and 61; and N. K. Modirzadeh, above note 5.

103 See International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 226, para. 25; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, para. 106. For literature on the relationship between international human rights law and international humanitarian law, see, for example, Lubell, Noam, ‘Challenges in applying human rights law to armed conflicts’, in International Review of the Red Cross, Vol. 87, No. 860, pp. 737–754Google Scholar; and Sassòli, Marco and Olson, Laura M., ‘The relationship between international humanitarian law and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflict’, in International Review of the Red Cross, Vol. 90, No. 871, pp. 599–627Google Scholar.

104 This is demonstrated not only by the fact that human rights law was intended to apply during times of armed conflict but also by case law in which state agents have been found to have violated international human rights law outside the territory of that state. In instances where state A is held responsible for wrongful acts perpetrated against citizens of state B, the human rights relationship clearly goes beyond that of the governor and governed. See, for example, ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p. 168, paras. 178–180. See also Al-Skeini v. The United Kingdom, Application No. 55721/07, Grand Chamber Judgment, 7 July 2001, paras. 131–140, for a summary of the European Convention of Human Rights case law on instances when the exercise of jurisdiction of a Contracting State outside its territorial boundaries may give rise to the exercise of ‘jurisdiction’ for the purpose of Art. 1 of the Convention.