Promotion and protection of human rights – Fundamental standards of humanity – SecGen report (excerpts)

PROMOTION AND PROTECTION OF HUMAN RIGHTS

Fundamental standards of humanity

Report of the Secretary-General

Summary

This report is submitted pursuant to Commission on Human Rights decision 2004/118 in which it requested the Secretary-General, in consultation with the International Committee of the Red Cross, to submit to the Commission at its sixty-second session an analytical report which would consolidate and update previous reports and studies, cover relevant developments, including regional and international case law and the forthcoming study by the International Committee of the Red Cross (ICRC) on customary rules of international humanitarian law, and address the issue of securing implementation.

The need to identify fundamental standards of humanity initially arose from the premise that most often situations of internal violence pose a particular threat to human dignity and freedom.  The process of fundamental standards of humanity is not, however, limited to situations of internal strife and aims at strengthening the protection of individuals through the clarification of uncertainties in the application of existing international law standards aimed at the protection of persons in all circumstances.  The process of fundamental standards of humanity should thus focus on the clarification of uncertainties in the application of existing standards in situations which present a challenge to their effective implementation.

During the period from 2004 to 2005, the following developments have contributed to the clarification of several problems related to the interpretation and application of the relevant standards.  The ICRC study on customary international humanitarian law rules made a significant contribution to the process of identifying fundamental standards of humanity by clarifying, in particular, international humanitarian law rules applicable in non-international armed conflict.  Furthermore, adoption by the Human Rights Committee of general comment 31 on article 2 of the ICCPR as well as the International Court of Justice’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and its judgment in the Case Concerning Armed Activities on the Territory of the Congo reaffirmed the applicability of international human rights law during armed conflict and addressed the relationship between international humanitarian law and international human rights law.

To build on this substantial progress, the Commission on Human Rights may wish to keep itself informed of relevant developments, including international and regional case law, which contribute to clarification of uncertainties in the application of existing standards.  The question of how to secure better compliance with fundamental standards of humanity by non-State actors also merits further consideration.

Introduction

1. In its decision 2004/118, the Commission on Human Rights, recalling its resolution 2000/69 and its decision 2002/112, and taking note of the report of the Secretary-General on fundamental standards of humanity (E/CN.4/2004/90), decided, without a vote, to consider the question of fundamental standards of humanity at its sixty-second session and to request the Secretary-General, in consultation with the International Committee of the Red Cross (ICRC), to submit to the Commission at its sixty-second session an analytical report which would consolidate and update previous reports and studies, cover relevant developments, including regional and international case law and the forthcoming study by the International Committee on customary rules of international humanitarian law, and address the issue of securing implementation.  The present report is submitted in accordance with decision 2004/118.  The comments and advice of the ICRC in the preparation of the report are gratefully acknowledged.

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III.  OTHER DEVELOPMENTS IN INTERNATIONAL LAW

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B.  Recent jurisprudence of the International Court of Justice

1. Advisory Opinion on the legal consequences of a wall in the Occupied Palestinian Territory

23. On 8 December 2003, the General Assembly decided to request the International Court of Justice to urgently render an advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian Territory.⁷¹  On 9 July 2004, the International Court of Justice delivered its advisory opinion and found that the construction of the wall by Israel “in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law”. ⁷²  In assessing the legality of the measures taken by Israel, the Court had to determine the relevant rules and principles of international law.  In addressing the issue of the relationship between international humanitarian law and human rights law, the Court considered that “the protection offered by human rights conventions does not cease in case of armed conflict”, and that while some rights may be exclusively matters of international humanitarian law or of human rights law, there are other rights that “may be matters of both these branches of international law”.  Ibid., para. 106.  The Court thus determined that both branches of international law, namely international human rights law and international humanitarian law, will have to be taken into consideration.  In addressing the issue of the applicability of human rights instruments outside national territory, the Court considered that international human rights instruments are applicable “in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”, particularly in occupied territories.  Ibid., paras. 107-113.

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IV.  CONCLUSIONS AND RECOMMENDATIONS

29. Previous reports observed that, while there was no apparent need to develop new standards, there was a need to secure respect for existing rules of international law aimed at ensuring the protection of persons in all circumstances and by all actors.  The process of fundamental standards of humanity should thus continue to focus on strengthening protection through the clarification of uncertainties in the application of existing standards in situations, which present a challenge to their effective implementation.

30. The 2005 ICRC study on customary international humanitarian law rules made a significant contribution to the process of identifying fundamental standards of humanity by clarifying, in particular, international humanitarian law rules applicable in non-international armed conflict.  Furthermore, adoption by the Human Rights Committee of general comment No. 31 on article 2 of the ICCPR as well as the International Court of Justice Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and its judgment in the Case Concerning Armed Activities on the Territory of the Congo reaffirmed the applicability of international human rights law during armed conflict and addressed the relationship between international humanitarian law and international human rights law.

31. To build on this substantial progress, the Commission on Human Rights may wish to continue to keep itself informed of relevant developments, including international and regional case law, which contribute to the clarification of uncertainties in the application of existing standards.  The question of how to secure better compliance with fundamental standards of humanity by non-State actors also merits further consideration.

Notes

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 ⁷¹Resolution ES-10/14.

⁷²Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, para. 163, (3) lit. A.  

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