Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-27T10:13:17.507Z Has data issue: false hasContentIssue false
  • English
  • Français

Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law*

Published online by Cambridge University Press:  17 February 2009

Raúl Emilio Vinuesa
Get access

Extract

From a doctrinal point of view, the relationship between human rights and international humanitarian law (IHL) seems like a settled issue in terms of the correspondence of basic objectives and common aims.

Different theories have tried to explain that relationship, taking into consideration either that human rights and IHL are separate systems or that they are completely integrated within international law. Most recent positions emphasize their convergence into a scheme of mutual coordination and complementarity.

In our view, none of these positions clearly characterize the day-to-day interface between human rights and IHL. Taking that premise as a point of departure, our purpose is to demonstrate that there is no rational or organized convergence between the two systems of law, that similitude and correspondence are sometimes overwhelmed by diversity, and that gaps and overlaps between their rules are a common feature of their interrelations.

Type
Articles
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 69 - 110
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See Pictet, J., Développement et Principes du Droit International Humanitaire (Genève, Institut Henry Dunant 1983)Google Scholar; El Kouhene, M., Les garanties fondamentales de la personne en droit humanitaire et droit de l'homme (Dordrecht, Nijhoff 1986)Google Scholar; Schindler, D., ‘El Comité Internacional de la Cruz Roja y los Derechos Humanos’ [International Committee of the Red Cross and Human Rights], 116 International Review of the Red Cross (1979) p. 99 at p. 126Google Scholar; Weissbrodt, D. and Hicks, P., ‘Aplicación de los derechos humanos y del derecho humanitario en caso de conflicto armado’ [Human Rights and International Humanitarian Law Application during Armed Conflicts] 116 International Review of the Red Cross (1979) p. 127 at p. 147Google Scholar; Meron, T., Human Rights and Humanitarian Norms as Customary Law (Oxford, Clarendon Press 1989)Google Scholar; ‘The Protection of the Human Person under Human Rights Law and Humanitarian Law’, 91/1 Bulletin of Human Rights (New York, United Nations 1992)Google Scholar; Cerna, C., ‘Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies’ in Kalshoven, F. and Sandoz, Y., eds., Implementation of International Humanitarian Law/Mise en oeuvre du Droit International Humanitaire (Dordrecht, Nijhoff 1989)Google Scholar; Espiell, H. Gros, ‘Derechos Humanos, Derecho Internacional Humanitario y Derecho Internacional de los Refugiados’ [Human Rights, International Humanitarian Law and International Refugee Law], in Swinarski, C., ed., Etudes et essais sur le droit international humanitaire et sur les principes de la Croix Rouge en l'honneur de Jean Pictet (Genève, The Hague, ICRC, Nijhoff) p. 706 et seqGoogle Scholar.

2. . See Trindade, A. Cançado, ‘Aproximaciones o convergencias entre el derecho internacional humanitario y la protección internacional de los derechos humanos’ [Approximations or Convergences between International Humanitarian Law and International Protection of Human Rights], in Seminario Interamericano sobre la Protección de la Persona en Situaciones de Emergencia (San José de Costa Rica, Instinito Interamericano de Derechos Humanos 1996) p. 33 at p. 88Google Scholar.

3. See Alston, P., ed., The United Nations and Human Rights: A Critical Appraisal (Oxford, Clarendon Press 1992)Google Scholar; Buergenthal, T., International Human Rights in a Nutshell (St. Paul, West Publishing Co. 1995)Google Scholar; Cassese, A., Human Rights in a Changing World (Philadelphia, Temple University Press 1990)Google Scholar; Centre for Human Rights, United Nations Action in the Field of Human Rights (New York, United Nations 1995)Google Scholar; Donnelly, J., International Human Rights (Boulder, Westview Press 1993)Google Scholar; Hannum, H., ed., Guide to International Human Rights Practice (Philadelphia, University of Pennsylvania Press 1992)CrossRefGoogle Scholar; Henkin, L., ed., The International Bill of Rights: The Covenant on Civil and Political Rights (New York, Columbia University Press 1981)Google Scholar; Robertson, A. and Merrills, J., Human Rights in the World (New York, Manchester University Press 1989)Google Scholar; Sieghart, P., The International Law of Human Rights (Oxford, Clarendon Press 1983)Google Scholar; Vassak, K. and Alston, P., eds., The International Dimensions of Human Rights, (Westport, Greenwood Press 1982)Google Scholar.

4. See Delissen, A. et al. , eds., Humanitarian Law of Armed Conflict: Challenges Ahead. Essays in Honor of Frits Kalshoven (Dordrecht, Nijhoff 1991)Google Scholar; International Dimensions of Humanitarian Law (Geneva, Henry Dunant Institute (Dordrecht, Nijhoff 1988)Google Scholar; Meron, T., Human Rights in Internal Strife: Their International Protection (Cambridge, Grotius 1987)Google Scholar; Sandoz, Y. et al. , eds., Commentary on the Additional Protocols of 1977 to the Geneva Conventions of 1949 (Geneva, The Hague, ICRC, Nijhoff 1987)Google Scholar; Swinarski, ed., op. cit. n. 1.

5. I/A Court H.R., The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82 of 24 September 1982, Series A No. 2.

6. See Art. 75 of Protocol I and Arts. 4 to 6 of Protocol II to the Geneva Conventions of 1977 (hereinafter, Protocols I and II).

7. Junod, S., ‘Los derechos humanos y el derecho internacional humanitario’ [Human Rights and International Humanitarian Law], in Primer Seminario sobre Derecho Internacional Humanitario (Buenos Aires, Instituto de Derecho Internacional Público, U.B.A. 1981) p. 17 at p. 23Google Scholar.

8. UNGA Res. 2675 (XXV).

9. The Preamble of Protocol II prescribes that, ‘Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person.’

10. See Proclamation of Teheran, proclaimed by the International Conference on Human Rights at Teheran, 13 May 1968; see also Dinstein, Y., ‘Human Rights in Armed Conflicts: International Humanitarian Law’, in Meron, T., ed., Human Rights in International Law (Oxford, Clarendon Press 1984) p. 345 et seqGoogle Scholar.

11. L. Condorelli and L. Boisson de Chazoumes, ‘Quelques remarques a propos de l'obligation des Etats de “respecter et faire respecter” le Droit International Humanitaire “en toutes circon-stances”’, in Swinarski, ed., op. cit. n. 1.

12. T. Buergenthal, ‘To Respect and to Ensure State Obligations and Permissible Derogations’, in Henkin, ed., op. cit. n. 3.

13. Art. 4(1) ICCPR.

14. Art. 15(1) Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (hereafter, European Convention).

15. Art. 27(1) American Convention on Human Rights 1969 (hereafter, American Convention).

16. Art. 4(3) of the ICCPR contemplates that ‘… Any State Party to the present Covenant availing itself of the right to derogation shall immediately inform the other State Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation’. Art. 15(3) of the European Convention prescribes that ‘…Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures that it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.’

Art. 27(3) American Convention expresses that ‘…Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organisation of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.’

17. The European Court of Human Rights in the Brannigan and McBride case has declared that ‘The power of extended detention with such judicial control and the derogation of 23 December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response’, Branningan and McBride v. United Kingdom, Judgment of 26 May 1993, Series A, No 258=B (1994) 17 EHRR 539.

18. Declaration of Minimum Humanitarian Standards adopted by a Group of Experts at Turku, Finland, 1990. Text reproduced at 89 AJIL (1995) p. 218 et seq.

19. GC 5/13, United Nations Human Rights Committee 36, 110.

20. Silva, et al v. Uruguay (E.8134) HRC 36, 130.

21. Eur. Ct. HR, Lawless v. Ireland (322/57), Judgment: 1 EHRR 15.

22. Eur. Comm. HR, in Denmark, Norway, Sweden and the Netherlands v. Greece, (3321–3/67; 3344/67) Report: 5 November 1969.

23. Eur. Comm. HR, Ireland v. United Kingdom (5310/71) 2 EHRR 25.

24. Eur. Comm. HR, Greece v. United Kingdom (176/56) Unpublished Report.

25. Lawless v. Ireland, see supra n. 21.

26. Ireland v. United Kingdom, see supra n. 23.

27. Denmark, Norway, Sweden and the Netherlands v. Greece, see supra n. 22.

28. Lawless v. Ireland, see supra n. 21.

29. Ireland v. United Kingdom, see supra n. 23.

30. Ibid.

31. Ibid.

32. Art. 4(1) UN Covenant on Civil and Political rights; Art. 15(1) European Convention; Art. 27(1) American Convention.

33. I/A Court HR, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87 of 29 January 1987.

34. Ibid., para. 12, p. 31.

35. Cf., Art. 27 American Convention.

36. See supra n. 33, para. 12, p. 32.

37. See supra n. 33, para. 12, p. 32. Cf., Arts. 27 and 5 American Convention.

38. See supra n. 33, para. 12, p. 33.

39. Cf., I/A Court HR, Restrictions to the death penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83 of 8 September 1983, Series A No. 3, para. 48.

40. Art. 29 American Convention; OC-3/83, see supra n. 33, para. 16, p. 36.

41. See supra n. 33, para. 17, p. 37.

42. See supra n. 33, para. 20, p. 38: the Court states that ‘… the soundness of this conclusion gains special validity given the context of the Convention, whose Preamble reaffirms the intention (of the American States) … to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.’

43. See supra n. 33, para. 22, p. 39.

44. Art. 27(2) American Convention: ‘… The foregoing provision does not authorize any suspension of the following articles: Art. 3 (Right to Judicial Personality), Art. 4 (Right to Life), Art. 5 (Right to Humane Treatment), Art. 6 (Freedom from Slavery), Art. 9 (Freedom from Ex Post Facto Laws), Art. 12 (Freedom of Conscience and Religion), Art. 17 (Rights of the Family), Art. 18 (Right to a Name), Art. 19 (Rights of the Child), Art. 20 (Right to Nationality) and Art. 23 (Right to participate in Government), or of the judicial guarantees essential for the protection of such rights …’

45. See supra n. 33, para. 24, p. 40.

46. See supra n. 33, para. 2 and para. 24, p. 40; Cf., I/A Court HR, The Word ‘Laws’ in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of 9 May 1986, Series A. No. 6, para. 32; ‘…in a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the other for its meaning, idem, p. 41.

47. See supra n. 33, para. 27, p. 41.

48. See supra n. 33, para. 29, p. 42: ‘…the judicial remedies that must be considered to be essential within the meaning of article 27(2) are those that ordinarily will effectively guarantee the full exercise of the rights and freedoms protected by that provision and whose denial or restriction would endanger their full enjoyment.’

49. See supra n. 33, para. 25, p. 40.

50. See supra n. 33, para. 36, p. 44; ‘Those who drafted the Convention were aware of these realities, which may well explain why the Pact of San José is the first international human rights instrument to include among the rights that may not be suspended essential judicial guarantees for the protection of non-derogable rights’, idem, para. 36, p. 45.

51. See supra n. 33, para. 40, p. 46.

52. See supra n. 33, para. 38, p. 46.

53. See supra n. 33, para. 42, p. 48 (formalities versus respect and guarantees of rights).

54. See supra n. 33, para. 43, p. 48.

55. Advisory Opinion OC-9/87 of October 6, 1987 on Judicial Guarantees in States of Emergency, (Arts. 27(2), 25 and 8) at para. 17 p. 29. The government of Uruguay asked the Court ‘to interpret the scope of the convention's prohibition of the suspension of the judicial guarantees essential for the protection of such rights. Because even in time of war, public danger, or other emergency that threatens the independence or security of a State Party (Art. 27(1)) it is not possible to suspend the judicial guarantees essential for the protection of such rights, the Government of Uruguay requests the Court's opinion, in particular regarding: (a) which of these judicial guarantees are “essential” and (b) the relationship between Art. 27(2), in that regard, and Arts. 25 and 8 of the American Convention’.

56. Derogation from Art. 2 (Right to Life), except in respect of death resulting from lawful acts of war; from Art. 3 (Torture or other Ill Treatment); Art. 4(1) (Slavery or Servitude); and Art. 7 (Retroactive Penal Law) are not permitted under Art. 15(2).

57. Art. 27(2) prescribes that ‘…The foregoing provision does not authorise any suspension of the following articles: Art. 3 (Right to Judicial Personality); Art. 4 (Right to Life); Art. 5 (Right to Humane Treatment); Art. 6 (Freedom from Slavery); Art. 9 (Freedom from Ex Post Facto Laws); Art. 12 (Freedom of Conscience and Religion); Art. 17 (Rights of the Family); Art. 18 (Right to a Name); Art. 19 (Rights of the Child); Art. 20 (Right to Nationality); and Art. 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights’.

58. It prescribes that no derogation from Art. 6 (Right to Life); Art. 7 (Freedom from Torture, Cruel or Inhuman Treatment); Art. 8(1) (Freedom from Slavery); Art. 8(2) (Freedom from Servitude); Art. 11 (Freedom from Imprisonment for Debts); Art. 15 (Freedom from Ex Post Facto Penal Laws); Art. 16 (Recognition of Personality); and Art. 18 (Freedom of Thought, Conscience and Religion); may be made.

59. See United Nations World Conference on Human Rights: Vienna Declaration and Programme of Action, 25 June 1993, 32 ILM (1993), p. 1661 et seq.

60. Cf., International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Tadić a/k/a/“Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case IT-94-I-AR 72; reproduced at 91 ILM (1996) pp. 32 et seq.

61. For example, Art. 3 common to the four Geneva Conventions of 1949 and applicable during internal armed conflicts prescribes the right to life, to freedom from torture and cruel treatment, inter alia. Principles of legality, due process and of non-retroactivity are also recognised by common Art. 3. The same article prescribes that persons protected under it shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. Common Art. 3 implies that states have accepted their obligation to protect their own nationals during internal armed conflicts.

Art. 75 of Protocol I lays down minimum guarantees applicable to persons in the power of a party to an international conflict, including that they shall be treated humanely in all circumstances and shall enjoy these rights without discrimination and with due respect for the person, honour, convictions and religious practices of all protected persons. The rights guaranteed include violence to life, health, or physical or mental well-being of persons, in particular, murder; torture; corporal punishment; mutilation; outrages upon personal dignity; humiliating and degrading treatment; enforced prostitution and any form of indecent assault; the taking of hostages; collective punishments; and threats to commit any of the foregoing acts, shall remain prohibited whether committed by civilian or by military agents. Due process and other relevant judicial guarantees, such as non-retroactivity of penal laws, as well as special protection of women and children are considered as fundamental guarantees applicable under the general terms and conditions of Protocol I. Fundamental rights are also prescribed in Art. 4 of Protocol II, which reiterates the fundamental guarantees recognised under Art. 75 of Protocol I, adding acts of terrorism, slavery and the slave trade and pillage as acts that shall remain prohibited at any time and in any place whatsoever.

Protocol II also recognises the principle of legality, the principle of non-retroactivity and the right to due process for penal prosecution and punishment of criminal offences related to armed conflicts.

62. Supra n. 18.

63. Cf., Eide, A., et al. , ‘Combating lawlessness in gray zone conflicts through minimum humanitarian standards’, 89 AJIL (1995) p. 216CrossRefGoogle Scholar.

64. Ley [Law] No. 22.924 (B.O. 27/09/83).

65. Ley [Law] No. 23.040 (B.O. 29/12/83): A National Appeals Court declared the constitutionality of Law No 23.040 and the illegality of the so-called self-amnesty law; Cámara Nacional de Apelaciones en lo Criminal y Correccional Federal, judgment of 4 October 1984 in re Fernández Marino, Amador.

66. Decreto [Decree] No. 158/83 (B.O. 15/11/83). The Decree was passed in accordance with powers granted to the President by the National Constitution (Art. 86.15).

67. See amendments to the Code of Military Justice approved by Law No 23.049 (B.O. 15/02/84); the law amending the Code of Military Justice conferred jurisdiction on the federal courts of appeal to intervene in military proceedings by appeal or by removing the case from military courts and assuming jurisdiction in the case, regardless of the stage of proceedings (Art. 10).

68. Causa originalmente instruida por el Consejo Supremo de las Fuerzas Armadas en cumplimiento del Decreto 158/83 del Poder Ejecutivo Nacional, Cámara Nacional de Apelaciones en lo Criminal y Correccional, sentencia del 9 de Diciembre de 1985, Fallos CSJN v. 309–I, p. 33 et seq. At p. 288.

69. Ibid., at pp. 289–290.

70. Ibid., at pp. 294–295.

71. Ibid., at p. 295.

72. Ibid., at p. 297: ‘The unlawfulness of the actions taken is reflected not only in the violence characterizing the operations but also in the measures which were taken for the purpose of concealing the arrests and the fate of the detainees, submitting them to unacceptable conditions of captivity.’

73. Ibid., at pp. 297–298: ‘There was not enough evidence as to determine the existence of a similar systematic plan as to ascertain criminal responsibility to the defendants in reference to abduction of minors, bribery, kidnapping for ransom, extortion and crimes against property.’

74. Ibid., at p. 1538.

75. Art. 131 of the Code of Military Justice. Its regulations were binding on all persons who were found within the military zones. The Code also prescribed that when those regulations are used to punish criminal behaviour, they shall be published in newspapers and printed on signs and posted in public places. The regulations prescribe the death penalty for the crimes of vandalism, rape, arson and other crimes of a similar nature. The procedure to be followed once the accused has been apprehended should be oral and speedy safeguarding of the rights of the defense, which may be reasonably exercised by the defendant. The Code also provided that sentences imposing grave penalties may be appealed before the higher military authorities of the area (Art. 139).

76. Ley [Law] No. 16.970 (B.O. 10/10/66); see supra n. 68 at p. 1537.

77. See supra n. 68 at p. 1544.

78. Ibid., at p. 1542.

79. Ibid., at p. 1543.

80. Ibid., at p. 1545.

81. Ibid., at pp. 1547–1548: ‘In order to understand the legal context within which the presidential order ‘to exterminate’ subversives was issued, it must be recalled that article 31 of the national constitution was still in force. According to this article, the National Constitution, the laws enacted as a consequence of constitutional prescriptions and treaties concluded with foreign nations, are the supreme law of the land. Consequently, even if the President would have desired to issue an administrative act derogating the supreme law of the land, he was not in a position to do so because it was beyond the powers granted to him by the Constitution.’

82. See supra n. 68 at p. 1555: ‘The discrepancy between the acts that were carried out and what is admissible to a civilized society appears to have been recognized by the commanders themselves. For this reason, they choose to keep covert the procedures they had employed, even after the fight was over.’ The Court added at p. 1557 that, ‘The means with which the defendants conducted the fight against subversion do not correspond to the notion of excessive use of defensive force. Excess, as said above, stems from fear, surprise and an agitated state of mind. The terrorist aggression was grave, serious and it had to be stopped; however, it cannot be accepted that a government which held all the power of law and of force, behaved as it did out of a change in the state of mind of its members. The acts in question were planned, directed and ordered … In no way can it be accepted that the defendants subjectively acted using excessive defensive force.’

83. See supra n. 68, at p. 1560.

84. Ibid., at pp. 1560–1561; the Court of Appeals quoted Thompson, R., Guerra Revolucionaria y Estrategia Mundial (Buenos Aires, Paidós 1969) p. 20Google Scholar.

85. See supra n. 68, at p. 1561.

86. Ibid., at p. 1562.

87. Ibid., at pp. 1562–1563.

88. Ibid., at p. 1563: ‘A war cannot be tried in court. And if it were, only the defeated side could be brought to justice. In no way can this court accept such a theory, which obviously disregards a legal and cultural tradition that also pertains to the armed forces.’

89. See supra n. 68 at pp. 1563–1564.

90. Ibid.

91. Ibid., at p. 1566.

92. Ibid., at p. 1572: ‘When the government has recognized the opposing forces as belligerent, or treats the rebel party as a de facto government; or when without reaching any of such instances the government must resort to measures of war in view of the magnitude of the armed rebellion, it can be said that the situation is one of civil war. Then, there are no political criminals, but only enemies. Both belligerent parties stand on equal footing and must be ruled by the laws and usages of war as if the conflict is international … Campos, G. Bidart, Derecho Constitucional, Vol. 1, p. 582Google Scholar’.

93. Ibid., at pp. 1528 and 1577.

94. Ibid., at pp. 1574–1576 and 1578.

95. Ibid., at p. 1568.

96. Ibid., at pp. 1583 and 1584.

97. Ibid., at p. 1584.

98. See supra n. 68 at p. 1566; Quoting Calderón, González, Curso de Derecho Internacional, (Buenos Aires, Depalma 1974), at p. 280Google Scholar. A state of siege was declared on November 1974 by Presidential Decree No. 1368. (Gaceta Oficial, 7 November 1974). That state of siege was also in force during the de facto military government. The National Constitution prescribes the legal framework within which a state of siege should be applied. Art. 23 of the National Constitution provides that ‘in the event of internal disorder or foreign attack endangering the functioning of this Constitution and the authorities created thereby, the province or territory in which the disturbance of order exists shall be declared to be in a state of siege and the constitutional guarantees shall be suspended therein. But during such suspension the President of the Republic shall not convict or punish upon his own authority. His power shall be limited, in such a case, with respect to persons, to arresting or transferring them from one point of the nation to another, if they do not prefer to leave Argentine territory.’ The judiciary has defined the declaration of a state of siege as a political act. Such act is not subject to any approval nor is it subject to judicial review.(See supra n. 68 at p. 1568: Fallos Vol. 233, p. 206). A state of siege did not allow the armed forces to arrest without trial, to torture or to provoke a massive disappearance of persons. The Court added that it cannot be accepted that a de facto government, that concentrated all power in its hands and even bestowed on itself the ability to alter the Constitution, had no other way to curb terrorism than to act beyond the legal framework and to resort to clandestine operations and to a regime of terror equal to the one which it was supposed to curb. (See supra n. 68 at pp. 1569/1577).

99. See supra n. 68 at pp. 1575–1576.

100. Regulations RC-9–1 of the Argentine Army, at p. 173, See supra n. 68 at p. 1571.

101. Ibid., n. 68 at p. 1578.

102. Ibid., at p. 1583.

103. Ibid., at pp. 1583–1584.

104. Ley de Obediencia Debida [Due Obedience Act] No. 23.521 (B.O. 09/06/87).

105. Ley [Act] No. 23.492 (B.O. 29/12/86]

106. ‘…At that time — in reference to internal violence during the seventies — war was not mentioned but fighting against delinquent subversive bands, which was a fact. But as soldiers we know that hostilities should be conducted with due respect to the Geneva Conventions. Many of you present here … know to what I particularly referred to, because you have been prisoners of war in the Malvinas and the rest of the army knows because of the knowledge of international humanitarian law …’ Discourse pronounced by General Balza, M. on 12 February 1998, text reproduced in El Soldado Journal (Buenos Aires, 13 02 1998)Google Scholar.

107. International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Tadić Opinion and Judgment, Case No. IT-94-1-T, Judgment 7 May 1997, at 36 ILM (1997) p. 908 et seqGoogle Scholar.

108. On the contrary, the Swiss Military Tribunal gave an broad interpretation of the applicability of IHL to internal armed conflicts, In re. G., Military Tribunal, Division 1, Lausanne, Switzerland, 18 April 1997. See commentary at 92 AJIL (1998) p. 78 et seq.

109. Supra n. 68.

110. Ibid., at para. 238.

111. Declaration on the Protection of all Persons from enforced Disappearances, 18 December 1992, A/RES/47/133; see also Art. 3.2.(d) Declaration of Minimum Humanitarian Standards, supra n. 32.

112. Statute of the International Criminal Tribunal for the Former Yugoslavia, S/RES/808 (1993).

113. See supra n. 107 at para. 595.

114. Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States, Merits, 1986, ICJ Rep. 14.

115. See supra n. 107, Dissenting opinion of Judge McDonald, para. 7.

116. International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Rajić, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, case No. IT–95–12–R61, 13 September 1996, para. 22.

117. Ibid. para. 14.

118. Ibid., at para. 21.

119. See contra, Aldrich, G., ‘Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia’, 90 AJIL (1996) p. 64 et seq.CrossRefGoogle Scholar; see also Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT–94–1–AR72, 2 October 1995, para. 76, at 35 ILM (1996) p. 57Google Scholar.

120. Swaak-Goldman, O., ‘Prosecutor v. Rajić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence’, 91 AJIL (1997) p. 523 et seq., see at p. 531Google Scholar: ‘Another aspect of this decision that deserves comment is the Trial Chamber's conclusion, in its discussion of protected property, that control equals occupation and that this occurs almost immediately. This finding seems to make the phrasing in the Four Geneva Conventions related to protected persons — “in the hands of a party to the conflict or Occupying Power” — redundant.’

121. See supra n. 119, paras. 127 and 128.

122. See Pictet, op. cit. n. 1, at p. 75.

123. Doswald-Beck, L. and Vité, S., ‘Derecho internacional humanitario y derecho de los derechos humanos’ [International Humanitarian Law and Human Rights Law], 116 International Review of the Red Cross (1993) p. 99 at p. 124Google Scholar.

124. See supra n. 59, Part II, para. 96, at p. 1687.

125. See supra n. 59, para. 29, at p. 1671.

126. Cf., Address by the President of the ICRC, Cornelio Somaruga, UN World Conference on Human Rights, Vienna, 14–25 June 1993, Internal Document of the Conference, pp. 2 and 3.

127. See supra n. 119, at p. 32 et seq. and para. 97, at p. 63.