• This document is intended to provide humanitarian personnel with a quick reference to international humanitarian law and human rights law instruments.¹ This is not intended as a policy document per se, but rather as guidance to assist Humanitarian Coordinators in the course of their duties.²

• The Easy Reference is divided into three sections:

Example: Material assistance is blocked or diverted, and/or humanitarian personnel are not allowed, or only allowed restricted, access to the vulnerable population.

• An impartial humanitarian body, such as the ICRC, may offer its services to the parties to the conflict (common article 3 to the Geneva Conventions);

• Special protection and right to relief for wounded, sick and children (Additional Protocol II, articles 4, 5, 7 and 11);
• Starvation of civilians as a method of combat is prohibited. Prohibition to attack or destroy objects indispensable for the survival of the civilian population (Additional Protocol II, article 14);

• Relief societies and relief action—impartial and humanitarian relief actions for the civilian population shall be permitted (subject to the consent of the parties) (Additional Protocol II, article 18).

The ICTY Statute does not contain an explicit provision on the right to assistance and granting of access.

The ICTR Statute does not contain an explicit provision on the right to assistance and granting of access.

It should be noted that the International Criminal Court (ICC) defines intentional starvation used as a method of warfare as a war crime only in international armed conflicts (article 8 (2) (b) (xxv), while the Security Council has condemned intentionally used starvation as a method of warfare in an internal armed conflict (Somalia) in its resolution 794 (1992).

Example: A certain ethnic, religious, political group and/or minority of the population is forced by violence to leave their homes, and thus this issue should also be read in relation to force (or threat thereof) used in connection with displacement (e.g., execution, torture).

International humanitarian law

• Prohibition of forced movement of civilians (Additional Protocol II, article 17).

• Freedom of movement, which implies a right to remain, to leave and to return, and which may not be subjected to restrictions based on discrimination due to race, sex, language or religion—see "Principle of Non-Discrimination", below (the Universal Declaration of Human Rights, article 13, and the Covenant on Civil and Political Rights, article 13);
• Prohibition against arbitrary separation of children from their parents (the Convention on the Rights of the Child, articles 9 and 10).

Regional human rights instruments

• Prohibition against expulsion of individuals and mass expulsion targeting national, racial, ethnic or religious groups (Principle of Non-Discrimination) (the African Charter, article 12; the European Convention on Human Rights, Protocol 4; and the American Convention, articles 22 (3) and (4)).

ICTY Statute

• Unlawful deportation or transfer of civilians or prisoners of war protected under the Geneva Conventions (grave breach of the Geneva Conventions of 1949, article 2 (g));

• Deportation of any civilian population (crime against humanity, article 5 (d)).

• Widespread or systematic deportation of the civilian population on national, political, ethnic, racial or religious grounds (crime against humanity, article 3 (d)).

ICC Statute

• Widespread or systematic deportation or forced transfer of population (crime against humanity, article 7 (1) (d)).

The Guiding Principles, which reflect and are consistent with international humanitarian law and human rights law, provide practical guidance with regard to internally displaced persons. It should be noted that internally displaced persons, by virtue of the fact they are human beings and, usually, civilian victims of armed conflict, are entitled to the full range of protection provided for under international humanitarian law and human rights law.

Example: Civilians are executed or killed without final judgement rendered by a competent court; civilians are arbitrarily executed in their villages.

• Prohibition against violence to life and person, arbitrary executions (common article 3 to the Geneva Conventions of 1949 and Additional Protocol II, article 4).

• Killing or inflicting serious harm on a national, ethnic, racial or religious group with intent to destroy the group (the Convention on the Prevention and Punishment of the Crime of Genocide of 1948).

ICTY Statute

• Wilful killing of persons protected under the Geneva Conventions (grave breach of the Geneva Conventions of 1949, article 2 (a));

• Killing or inflicting serious harm on a national, ethnic, racial or religious group with intent to destroy the group (genocide, article 4);

• Murder of any civilian population (crime against humanity, article 5 (a));
• Extermination of any civilian population (crime against humanity, article 5 (b)).

• Killing or inflicting serious harm on a national, ethnic, racial or religious group with intent to destroy the group (genocide, article 2);
• Widespread or systematic killing of the civilian population on national, political, ethnic, racial or religious grounds (crime against humanity, article 3 (a) and (b)).

ICC Statute

• Killing or inflicting serious harm on a national, ethnic, racial or religious group with intent to destroy the group (genocide, article 6);

• Widespread or systematic murder and extermination of civilians (crime against humanity, article 7 (1) (a) and (b); and war crime, article 8 (2) (c) (i)).

International humanitarian law

• Prohibition against cruel treatment, torture, humiliating and degrading treatment and rape (common article 3 to the Geneva Conventions of 1949; and Additional Protocol II, article 4).

International human rights law

• Prohibition against torture and inhuman and/or degrading treatment, including sexual violence (the Universal Declaration of Human Rights, article 5; the Covenant on Civil and Political Rights, article 7; the Convention on the Rights of the Child, articles 19, 34, 37 and 38; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

ICTY Statute

• Torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health against persons protected under the Geneva Conventions (grave breach of the Geneva Conventions of 1949, article 2 (b) and (c), respectively);
• Torture, rape against any civilian population (crime against humanity, article 5 (f) and (g), respectively).

• Widespread or systematic torture, rape (crime against humanity, article 3 (f) and (g), respectively);

• Violence to life, health and physical or mental well-being of persons, inhuman treatment and rape (violations of article 3 common to the Geneva Conventions and Additional Protocol II, article 4 (a) and (e), respectively).

ICC Statute

• Widespread or systematic torture, rape or other forms of sexual violence against civilians (crime against humanity, article 7 (1) (g) and (h); and war crime, article 8 (2) (c) (i) and (ii)).

E. Issue: Arbitrary arrest, detention, taking of hostages

Example: Civilians are arrested or taken hostage and subjected to prolonged detention without judiciary procedures.

International humanitarian law

• Prohibition against hostage-taking, arbitrary sentences (common article 3 to the Geneva Conventions of 1949 and Additional Protocol II, article 4).

International human rights law

• Prohibition against arbitrary arrest and prolonged detention (the Universal Declaration of Human Rights, articles 3 and 9; the Covenant on Civil and Political Rights, article 9, and the Convention on the Rights of the Child, articles 37 and 38).

ICTY Statute

• Unlawful confinement of civilians and taking of hostages of persons protected under the Geneva Conventions (grave breaches of the Geneva Conventions of 1949, article 2 (g) and (h), respectively);

• Imprisonment of civilians (crime against humanity, article 5 (e)).

• Widespread or systematic imprisonment of the civilian population on national, political, ethnic, racial or religious grounds (crime against humanity, article 3 (e));
• Taking of hostages (violations of article 3 common to the Geneva Conventions and Additional Protocol II, article 4 (c)).

Example: Children are taken from their homes or camps and forced to partake in hostilities, and thus this issue should also be read in relation to force (or threat thereof) used in connection with forced conscription of children.

• Children below the age of 15 should not partake in hostilities (the Convention on the Rights of the Child, article 38);

• Prohibition against arbitrary separation of children from their parents (the Convention on the Rights of the Child, articles 9 and 10).

The ICTY Statute does not contain any provision on recruitment of children.

The ICTR Statute does not contain any provision on recruitment of children.

• Conscripting or enlisting children under the age of 15 (war crime, article 8 (2) (c) (vii)).

Example: Humanitarian personnel are intimidated, shot at, taken hostage, beaten or arbitrarily arrested.

• Prohibition against violence to life, cruel treatment, hostage-taking etc. (common article 3 to the Geneva Conventions of 1949 and Additional Protocol II, articles 4, 9 and12).

International human rights law

• Prohibition against torture, arbitrary arrest and/or detention and killing, among other things (the Universal Declaration of Human Rights, articles 3 and 5; the Covenant on Civil and Political Rights, articles 6 and 7; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

The ICTY Statute does not contain an explicit provision on targeting of personnel, but reference can be made to various breaches, such as taking of civilian hostages or wilful killing, which are considered "grave breaches of the Geneva Conventions of 1949" according to the Statute.⁷

The ICTR Statute does not make any explicit reference to the targeting of personnel. However, as mentioned above, reference can be made to other provisions describing acts perpetrated on personnel.

Other instruments

• Special protection for UN personnel serving in an operation specifically authorized by the Security Council or the General Assembly (the Convention on the Safety of United Nations and Associated Personnel).

The Convention on the Safety of United Nations and Associated Personnel entered into force on 15 January 1999. The Convention relates to personnel serving in operations specifically authorized by the Security Council or the General Assembly.

1.1. This document is limited to internal armed conflicts, and thus does not cover international armed conflicts/wars. While the latter have more extensive coverage in international humanitarian law (i.e., all Geneva Conventions), most contemporary armed conflicts are currently defined as internal armed conflicts according to international law (e.g., Afghanistan, Algeria, Angola, Burundi, Congo-Brazzaville, Kosovo/the Federal Republic of Yugoslavia (FRY), Rwanda, Sierra Leone, Somalia and Sudan).⁸

1.2. While human rights law is applicable in both peace and war (irrespective of the classification of a conflict), human rights law contains provisions permitting the suspension of/derogation from certain rights in times of public emergency. Since an internal armed conflict often has the characteristic of a "public emergency", parts of human rights law can be suspended, while international humanitarian law contains no provision for similar suspension. Nevertheless, human rights law is today considered to play an important complementary role to international humanitarian law, since it offers additional protection for individual rights.

2.1. International humanitarian law was conceived and developed to limit the suffering of civilians (and prisoners of war) in armed conflict. It is formulated as a series of duties aimed at regulating the behaviour of the combatants in their relation to the civilian population, and it permits certain military acts provided that they do not inflict unnecessary harm on civilians.

2.2. International humanitarian law comprises several detailed instruments, for instance, the St. Petersburg Declaration (prohibiting the use of certain explosive projectiles); the Hague Conventions of 1907 (regulating means of warfare); the Geneva Conventions of 1949; and the two Additional Protocols of 1977 (protecting those not partaking in the hostilities).

2.3. With the exception of common article 3 to the Geneva Conventions of 1949, which stipulates certain minimum guarantees, international humanitarian law was originally developed in the context of international armed conflict (inter-State wars). However, as the number of armed conflicts within the State, and between the State and non-State actors, has increased over the past 50 years, two additional protocols were created in 1977. Additional Protocol II is specially designed for internal armed conflicts, in which one or more of the belligerents are non-State actors.

2.4. The two principal instruments referred to in the context of internal armed conflict are therefore: (a) common article 3 to the Geneva Conventions of 1949 and (b) Additional Protocol II of 1977.

2.6. Additional Protocol II of 1977 further develops and details the minimum guarantees in common article 3 to the Geneva Conventions.

3.1. Human rights law is formulated as a set of rights and freedoms inherent in human nature, which were proclaimed universal standards in the United Nations Universal Declaration of Human Rights in 1948. The Universal Declaration consists of two categories of rights: civil and political rights, on the one hand, and economic, social and cultural rights, on the other, which later were developed into two legally binding covenants, namely: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 1966.

3.3. While international humanitarian law is designed exclusively for armed conflict, human rights law applies in peace and war, and can thus be referred to in countries not undergoing armed conflict. However, as mentioned above, there are provisions in human rights law instruments which provide for suspension of/derogation from certain so-called "relative rights" (derogable rights) in times of "public emergency"¹⁰. Examples of "relative rights" are: freedom of movement and freedom of expression. On the other hand, "absolute rights" (so-called "hard-core rights"/non-derogable rights), such as freedom from torture and arbitrary killing, can never and under no circumstances be suspended.

3.4. The suspension of "relative rights" has to be made in accordance with the principle of non-discrimination, i.e., derogation in times of public emergency (e.g., the State is at war with another State or is affected by an internal armed conflict) is not permitted solely based on race, colour, sex, language, religion, political or other opinion, national or social origin.

3.5. The legality of suspension of/derogation from "relative rights" can often be questioned in situations of armed conflict, in which the provision of derogation is usually used for military and political objectives, and on a discriminatory basis. For instance, warring parties might suspend the freedom of movement of international personnel and thereby hamper access under the pretext of "security". Another example is when the authorities evacuate all citizens of a certain ethnic or religious group, while others—who are of an "accepted" ethnic or religious group—can remain in their homes. This might be an indication that the right to freedom of movement (which implies a right to leave as well as to remain) is breached in connection with the principle of non-discrimination, e.g., forced displacement of communities in the former Yugoslavia.

4.1. International humanitarian law refers to the "High Contracting Party", which traditionally means the State, whereas human rights law refers to the "State party". The general principle is that only States qualify as legal subjects to these instruments, and thus only the State is competent to ratify the same. If the State has not ratified a treaty or instrument, the general rule is that there is no legal obligation to abide by international humanitarian law and human rights law and incorporate these instruments into national legislation. Annex 2 offers information on the status of ratification of three fundamental instruments.

4.2. It should also be noted that, in addition, special agreements might be established between the United Nations and the Government on whose territory humanitarian activities are carried out. Such an agreement could stipulate a code of conduct based on international law, e.g., the OCHA negotiated principles on the provision of assistance with the Government (and non-State actors) of the Democratic Republic of the Congo (DRC).

4.3. However, given the growing number of internal armed conflicts, in which independent armed groups and rebels are at war with the State (Government) and/or each other, within the State, the traditional definition of "State party" and "combatants" has required a review. Non-State actors in contemporary armed conflict simply do not fit the original concept of legal subjects to international law. Consequently, many parties in contemporary conflicts would not—from a strictly legal interpretation—be in a position to ratify an international instrument or be ruled by the same.

4.4. In view of these developments, a general rule has been developed to cover other actors "under responsible command". Additional Protocol II of 1977 has been designed to create legal obligations for other organized armed groups, e.g., non-State actors who—"under responsible command"—partake in an internal armed conflict on the territory of a High Contracting Party (a Government that has ratified the Geneva Conventions and/or Additional Protocol II). In similar terms, common article 3 to the Geneva Conventions applies to non-State actors.

4.5. Human rights law does not have a corresponding adjustment, since it was originally envisaged to protect the citizens (and others who are present on the territory) against abuse of the State. However, this restricted applicability of human rights law is slowly being broadened (see paragraph 5.7).

5. Customary law—minimum standards/guarantees¹¹

5.1. The nature of intra-State armed conflicts challenges not only the concept of "State party" but also the definition of "armed groups under responsible command" as defined in Additional Protocol II. With an increased number of armed civilians and paramilitaries fighting against each other and/or the State, legal definitions on the status of the parties are constantly being challenged, raising many questions with respect to the applicability of the legal framework.

5.2. For instance, what is the accountability of States or non-State actors that have not ratified any instruments? Can armed civilians be made accountable for crimes committed in the course of the conflict, given the fact that they do not have the legal capacity under international law to sign a convention or a protocol?

5.3. There are exceptions to the rules of legal subjects and ratification. These exceptions are of particular relevance to contemporary internal armed conflicts, in which atrocities are committed on the civilian population by warring parties whose status often is dubious (whether they are individuals, groups or States who are not parties to any instruments or who do not fulfil the requirements of being under "responsible command"). There are certain articles of international humanitarian law and human rights law that are applicable in internal armed conflicts on the basis of not only ratification by the parties to the conflict but also customary law that has been developed through practices, resolutions, opinio juris and more flexible interpretations of the current legal framework.

5.4. These standards of customary law are sometimes referred to as "common standards of humanity" or the "Martens clause" (which was first mentioned in the Hague Conventions of 1907), and are intended to maintain certain principles of humanity and the dictates of the public conscience; the preamble of Additional Protocol II of 1977 contains the "Martens clause" and reads, inter alia:

5.5. In this vein, the Security Council has increasingly referred to international humanitarian law (and to a certain extent to human rights law) in its resolutions, irrespective of legal subjects and/or ratification.¹² The establishment of ad hoc tribunals for the former Yugoslavia and Rwanda as well as the ICC Statute, according to which individuals can be made accountable for certain outrageous crimes, such as genocide, crimes against humanity and war crimes, e.g., civilians who partook in the genocide in Rwanda, further reinforces this trend.

5.7. Similarly, the reference to human rights law in internal armed conflicts has developed through general practices and customary law covering "absolute rights"/"hard-core rights" (e.g., freedom from torture, arbitrary killing and slavery), and their applicability has been reaffirmed by human rights conferences, UN bodies and expert groups.¹⁴ Moreover, further to the preamble of the two Covenants of 1966, many argue that also non-State actors, who are not legal subjects to human rights law, and thus cannot ratify the same laws, are obliged to respect these instruments:

"Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant".

Examples of customary law are:

• Common article 3 to the Geneva Conventions;
• Absolute rights of human rights law (torture, which includes mutilation and rape; slavery and arbitrary killing);
• The crime of genocide, crimes against humanity and war crimes.¹⁵
•  

5.8. While the "tool" in section I enumerates both "relative rights" (requiring ratification or agreement) and "hard-core rights"/"absolute rights" (customary law), it would be useful to ensure before invoking any right, in particular "relative rights", that the instrument concerned is in force and that the parties have ratified the same. Ratification of an instrument always facilitates negotiations on protection, since it provides a solid basis for legal claims.

5.9. Yet, it should be borne in mind that ratification by no means guarantees proper conduct on the part of the warring parties. Unfortunately, legal concepts often play a very limited role in the physical protection of civilians at the field level where rational behaviour is overtaken by the dynamics of war. Lack of ratification is rarely cited by parties to a conflict as a justification for breaches of international humanitarian law and human rights law. As a matter of fact, parties often refer to sentiments caused by the war, such as retaliation or self-defence and/or historical, social and cultural causes.

5.10. In such circumstances, negotiations and ad hoc arrangements on practical issues covered by international humanitarian law and human rights law have proved more conducive to the actual protection of civilians on the ground. Thus, reference to "hard-core"/"absolute rights" should preferably be made in such a manner that none of the parties—irrespective of legal status—is left with the impression that there is no individual accountability.

6.1. The "tool" of the Easy Reference, limited to a few selected instruments, offers a basic introduction to the current legal framework of immediate relevance to humanitarian personnel at the field level, and thus it does not claim to be exhaustive. It is a compilation of some of the fundamental laws and principles that parties to the conflict may be bound by in internal armed conflict (based on either ratification or, if so defined, customary law), and which cover (or can be interpreted implicitly to cover) the issues in the "tool".

6.2. The instruments/articles are listed in the following order: (a). international humanitarian law; (b).international human rights law; (c). ICTY Statute; (d) ICTR Statute; (e) ICC Statute; and (f) other instruments (for complete title and year of adoption, please see annex 1).

6.3. While refugee law constitutes an important instrument in the context of armed conflict, it is not included in this reference because the objective of the 1951 Convention Relating to the Status of Refugees is chiefly to determine whether a person qualifies as a "refugee", and thus is entitled to international protection. It should, however, be noted that refugees—like others—enjoy legal protection under international humanitarian law and human rights law.

• Additional Protocol II of 1977 (internal armed conflicts)

• The Statute of the International Tribunal for the Former Yugoslavia of 1993
• The Statute of the International Tribunal for Rwanda of 1994
• The Statute of the International Criminal Court of 1998

ANNEX 2

Ratification, Accession (a)

Succession (d)

Ratification, Accession (a)

Succession (d)

¹See the Secretary-General's Reform Programme of 1997, which calls for the integration of human rights into all major activities of the Organization, part 1, section b, paragraphs 78-79. In 1998, the IASC established a Reference Group on Humanitarian Action and Human Rights (ICRC, ICVA, OHCHR, OCHA, UNHCR and UNICEF), which has designed several projects aimed at integrating human rights into humanitarian activities. One of these projects is the development of Field Practices on International Humanitarian Law, Human Rights and Refugee Law for use by humanitarian personnel.

²An internal discussion paper titled "OCHA and rights-based humanitarian action" is currently being prepared. The objective of the paper is to generate an internal discussion, and hence policy, on OCHA's role with respect to international humanitarian law and human rights.

³Comments were received from the Reference Group on Humanitarian Action and Human Rights, including the ICRC, OHCHR and UNICEF as well as OLA and WFP.

⁴The International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. The tribunal was established by Security Council resolution 827 (1993) of 25 May 1993.

⁵The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994. The tribunal was established by Security Council resolution 955 (1994) of 8 November 1994.

⁶The Statute of the International Criminal Court, adopted in Rome on 17 July 1998, has not yet entered into force.

⁷In the case of Bosnia-Herzegovina, the three parties to the conflict were invited by the ICRC on 22 May 1999 to sign an agreement on compliance with the Geneva Conventions of 1949.

⁸The applicability of international humanitarian law may, inter alia, be assessed on the basis of the "external/international" or "internal/national" status of the actor/party to an armed conflict. For instance, during the armed conflict in the province of Kosovo in 1998/99, provisions relevant to internal armed conflict apply in the relation between the forces of the Federal Republic of Yugoslavia (FRY) and the Kosovo Liberation Army (KLA), while all the Geneva Conventions (solely applicable in international armed conflicts) apply to the code of conduct between the Federal Republic of Yugoslavia and NATO.

⁹These are "minimum rules" applicable to all armed conflicts as affirmed by the International Court of Justice (ICJ) in the case of military and paramilitary activities in and against Nicaragua in 1986 (C. Sommaruga, ICRC, "Human rights and international humanitarian law", UN Bulletin of Human Rights, 91/1).

¹⁰Article 4 of the International Covenant on Civil and Political Rights (1966) outlines the circumstances which may constitute "public/State emergency" and thus may allow derogation: "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin".

¹¹See also the analytical report of the Secretary-General on minimum humanitarian standards submitted pursuant Commission on Human Rights resolution 1997/21, report of the Subcommission on Prevention of Discrimination and Protection of Minorities (E/CN.4/1998/87), 5 January 1998.

¹⁵According to the ICC Statute, the definition of "war crime" applies only to international armed conflicts, while "genocide" and "crime against humanity" have a wider application, including internal armed conflict.