User talk:Amadu Wurie Jalloh

“We have a critical situation here, which is, the country’s national elections are approaching and we do not want riots of any kind. We noticed that some people wanted to use this issue to perpetrate some kind of violence in the society which might disrupt the entire electoral process so the University Senate, the University Court and other University stakeholders have decided to let all the students take their exams and after the exams we will come back and review the decision of their rustication,” Aforo said Hindolo Trye — An Immortal Proposition: A Remembrance Hindolo Trye — An Immortal Proposition: A Remembrance thumbnail By: SEM Contributor on August 13, 2012.

Hindolo Sumanguru Trye (Guru to his buddies) died on Thursday July 26, 2012. Although dead, Guru bequeaths an immortal proposition to Sierra Leone. (Photo: The day Guru was appointed Secretary of State of Information in the NPRC government in 1992.)

Undeniably, Guru’s name will be forever linked to the popular “No College, No School” students’ demonstrations of 1977 that started at Fourah Bay College where he was Student Union President and engulfed the entire country. His lasting impact on Sierra Leone’s politics of national consciousness and mass mobilization will also be forever tied to that protest. With that rebellion, he headed the first national mass democratic protest in post-independent Sierra Leone, for there was no region untouched by the demonstration. With ’77, Guru and his contemporaries contemplated and actuated the opportunity that Sierra Leoneans can confront despotism, in this case APC misrule, and in doing so transform their country for the better through their own initiative, will, and action. He emerged from that historical moment an outlaw-hero, charismatic and cunning, adored and romanticized by generations of Sierra Leoneans. Many viewed him as a secular saint for radicalizing generations of youths who became his ardent admirers.

After FBC Guru further solidified his outlaw-hero credentials among Sierra Leoneans when he, along with Pios Foray and others, founded The Tablet newspaper, which articulated the ideologies of resistance to APC misrule that had spawned the ’77 demonstrations. Edited by Foray The Tablet became, in the eyes of President Siaka Stevens and his corrupt APC, legitimately acidic and toxic in exposing Stevens’ megalomania and the Kleptocracy it fostered. But in the eyes of many Sierra Leoneans, however, The Tablet became the outlet that expressed their desires and voiced their helplessness and disempowerment in a ruthless APC political machinery. The Tablet expressed profound contempt for APC misrule, and unleashed an effrontery to Stevens’ power that had not been seen since he established one-party rule in 1978. In one-party Sierra Leone, The Tablet became the voice of the opposition. It was fearless and bold, radical and uncompromising, combative and acerbic—qualities that described Guru as well. Stevens and the APC were unforgiving, and they unleashed a violent attack at the newspaper that nearly cost Guru and Foray their lives. Their escape from it found them in the USA where they spent close to two decades in exile. The last edition of The Tablet, published when Guru and Foray were in hiding, remains, in my opinion, one of the best prophetic journalistic pieces ever written in post-independent Sierra Leone: It predicted the Civil War. They warned then that the state violence Stevens had nurtured could be countered only by further acts of violence that would engulf the nation.

(Guru is flanked by C.J. Cole and Dennis Bright, both wearing white shirts; I‘m sitting close to Bright and directly in front of me is Nat Cole.)

‘77 and The Tablet articulated Guru’s emerging ideology of radicalism, Pan-Africanism, and commitment to democracy and its possibilities of change and freedom for Sierra Leoneans. Guru’s ideology was grounded on the prerequisite of change as a national obligation, and he was unwavering in that belief. He disavowed all politics based on regionalism, ethnicity and tribalism as well as paternalism and male chauvinism. He advocated for a national heritage rooted in a common national history and identity, common institutions and structures, egalitarian social ideals and political activism. He favored a cosmopolitan citizenship based on common, shared values like liberty, freedom of thought and association, coalitions and cooperation, political integrity and social justice. If there was maturation in Guru’s ideology, it came in what he always called “The Struggle.”

To Guru “The Struggle” is ideology and more; it is a religion (aren’t all ideologies like that anyway?), a spiritual force, almost god-like, which he worshipped with devotion. For him, it’s the Alpha and the Omega of a liberating national consciousness. His undying belief, faith, and conviction was that Sierra Leone can be positively transformed only by sacrifice through The Struggle. For that reason, he would evangelize on behalf of The Struggle, which he fervently believed must be at the center of our national redemption. With Guru, all conversations and speeches started and ended with “The Struggle.” Whether you’re talking to Guru in person or by phone, he’d always remind you to be committed to The Struggle: it must be the guiding principle and the motivating force for the individual and communal renewal necessary for a better Sierra Leone. To him The Struggle guarantees the means to right social wrongs; the path to embark on constant reform; the site to dream new and bigger dreams; the base for an egalitarian transformation of the country; the bold imagination that guides social justice and fairness, etc. Above all, however, Guru always reminded himself and us that The Struggle must be based on the trust and belief in popular sovereignty. He believed deeply that our conceptions of nationhood and citizenship must emerge from and be grounded in The Struggle, which in turn must facilitate democratic openness and transparent procedures and institutions that are accessible and available to all Sierra Leoneans.

Guru returned to Sierra Leone in 1992 just after the NPRC coup that toppled the APC. I vividly remember his first weeks in Freetown after his return. In his passion to reconnect with kindred souls, he was like a dog who cannot let go of a bone. He felt renewed and re-energized. We caught up under the auspices of the National Reconstruction Movement, a civic rights body some of us in Sierra Leone had formed in 1990. He was elated to see me and to reconnect to his Moyamba-Rotifunk roots. (Guru’s uncle, W.B. Trye, was a very, very close friend of my dad.) I remember another moment of reconnection (captured in the group photo) at the office of Nat Cole, then the Comptroller of Customs, at Cline Town. Guru was visibly emotional at that meeting which he said reawakened the memories of ’77. (Nat Cole was the Minister of Finance and Dennis Bright was the Secretary General in Guru’s ‘77 Student government. CJ Cole was there for it all in ‘77, Guru said. I was in early secondary school in ’77, and Guru joked that I had grown too fast to be in that picture.)

For Guru, the NPRC was just a manifestation of The Struggle. He reminded the military leaders (echoing similar sentiments by the late Olu Gordon) that the NPRC accomplished what ’77 would have achieved if students had had weapons. For him, the military government was an opportunity to address the destruction that came out of APC misrule and to lay the foundation toward a new, broad-based civilian government. As Secretary of State Information, two of his initial actions were to bring to the air the SLBS-TV (which had gone off-air during the APC) and restructure the press laws; the latter was controversial among some journalists who strongly opposed it. He was not illusory of the undemocratic scope and nature of military power even as his political capital added legitimacy to the NPRC. The military Junta was being pressured to set a deadline for returning the country to civilian rule. Acting on an advice given to them by Jerry Rawlings of Ghana, the NPRC constituted a Youth Secretariat, separate from the military structure and headed entirely by civilians, to be the future platform for the transition from military to civilian rule. (Rawlings successfully used the same strategy in Ghana.) Acting further on his advice, Rawlings “loaned” the Sierra Leonean Muctarr Mustapha, son of politician and businessman Sanusi Mustapha, to the NPRC to organize the Secretariat and lay the grounds for the return to civilian rule. Muctarr, known as “Solida” (short for solidarity) to his friends, was legendary for his radical opposition to the APC. He had been in self-exile in Ghana where he played a phenomenal role in the youth and civilian mobilization that was pivotal to Rawlings transformation from military leader to civilian president. So, Rawlings sent Solida to the NPRC with high recommendations. (Rawlings gave what amounted to a state funeral when Solida died in Ghana some years later.)

The NPRC military leaders had stated from the day they took power that none of them had intentions to head or join a civilian government after they left power. But they definitely were interested in influencing any process that would choose their civilian successor. To realize both views, they hatched and put into motion a closely guarded secret and agenda known only to the very top military leaders, and a very few civilians, to start thinking about a future civilian government. The Youth Secretariat was tasked to play a central role in that regard. Guru’s profile was high among those military members privy to this plan and agenda. And some of them did not hide their preference for Guru as the potential next civilian president. They traveled around with him all over the country. Of course, there were other civilian members of the NPRC with leadership ambitions as well who were being promoted by the other military leaders who viewed with suspicion the workings of the Youth Secretariat.

Once in Freetown, however, Solida made it clear, in his brash and patrician manner, to all who cared to know that Guru is the next president of Sierra Leone. Solida respected Guru highly, and would tell dramatic stories of their struggles against the APC going back to ‘77. To Solida, the only Sierra Leonean with the vision and radical dispositions to rule Sierra Leone after the NPRC was Guru. And he was committed to see that happen. From then on, his reference to Guru was “His Excellency in-waiting.” Solida envisioned that the structural layout of the Youth Secretariat should have only one focus: make the way so that Guru becomes the legitimate leader of Sierra Leone after the NPRC. (I left Sierra Leone in 1993 when this project was still unfolding.) For his part, Guru was busy trying to save the NPRC from self-destruction.

It was Guru who played a vital role in averting what was the first leadership crisis among the NPRC boys, a crisis that could have resulted in bloodbath in Freetown. About eight months or so after the 1992 coup that brought them to power, the Chairman and Head of State of the new military government Valentine Strasser had, along with some of his closest NPRC men including Charles Mbayo, departed Freetown at the dead of night for Antwerp (or Amsterdam) via a private jet made available by a well-known Lebanese diamond dealer. (It was later revealed that they had gone to sell diamonds.) The serious thing was that Strasser left Sierra Leone in secrecy without informing the other members of the Supreme Military Council and the NPRC. That seriousness was compounded by the fact that he did not follow the protocol of officially naming and having his military council approve an Acting Chairman and Head of State in his absence. (Just as they did when Strasser was in the US for medical treatment in the first months after the coup.) In short, the country was leaderless. US and British intelligence agencies had tracked Strasser and his entourage the moment they landed in Europe and transmitted that information to their respective diplomats in Freetown. The following morning, and constantly thereafter, the US Ambassador and the British High Commissioner called Guru inquiring about the whereabouts of the Head of state of Sierra Leone. Guru replied that the Chairman was at Kabassa Lodge to where he was headed because of a pre-scheduled meeting with him. Guru arrived at Kabassa only to learn that Strasser was not there. On further inquiry, he learned that the other members of the military leadership were also unaware that Strasser was not at the Lodge. In fact, they were not aware of his whereabouts. Period

A crisis was looming, and the members of the Supreme Military Council were alerted and summoned to an emergency meeting in Freetown concerning the “sudden disappearance” of “Chairman.” NPRC Military members in the provinces and those at the war front fighting the rebels abandoned their posts and drove to Freetown with urgency with their mini battalions. (This was the time when all the military members of the NPRC had their own mini military units.) For some of them the first task at hand was to prevent the Deputy Chairman of the NPRC S.A.J. Musa whom they suspected of having something to do with Chairman’s “disappearance” from assuming the leadership of the country. Even when they later learned to their disgusting surprise that Strasser was in Europe with no explanation for why he was there, some were still opposed to the option of SAJ acting as Head of State, fearing that he would use that to usurp power. They suggested one among the original coupists, other than SAJ, to act on behalf of Strasser. But seeing the potential trouble in that option, which in itself could have been perceived as a coup against SAJ, they agreed that SAJ should step in to act as Head of State. SAJ refused adamantly, saying that it was utterly disrespectful for Strasser to leave the country without informing him as his deputy and the other members of the Junta. There was a stalemate.

As the pressure from the US and British diplomats mounted on Guru to account for the whereabouts of Strasser, so continued the wrangling among the NPRC military leaders. (The US ambassador insisted that Guru as Secretary of Information must be able to tell at all times the whereabouts of the country’s Head of State. Guru’s response to him will remain a secret.) It was fast becoming a diplomatic embarrassment for the nation; but more seriously, the national security of the country was at stake because there were already rumors in the public of a coup in the NPRC. However, there was another dimension, even more serious, to this for the NPRC: they did not want the information to reach the rebels that the NPRC and the country were leaderless at that moment. As this played out, Guru emerged as one of the primary negotiators who solved the impasse that convinced SAJ to agree to act as Head of State, which he accepted only with certain conditions, which the others assented to. (About two weeks after Strasser returned from his trip, the top players in the NPRC drove to SAJ’s official residence at Hill Station and disarmed him and his security details.)

In all this, Guru was calm, loyal, and self-effacing. In general, he was a charming person with youthful convictions. His presence was bewitching, but surprisingly disarming. He was one of the strongest advocates for women’s and youth’s right in Sierra Leone I ever met. He was helpful, and used his NPRC connections to provide airfares for struggling students who are Ph.D. holders in the Diaspora today. He was an incorruptible patriot.

When Guru declared his membership and support for the APC in 2006, he left many of his admirers, who’d always seen him as their outlaw-hero and secular saint, bewildered and deflated. They condemned him for joining a political party that had stifled all that he fought and sacrificed his life for. Some accused him of betraying and compromising his principles and ideals. To others, he was guilty of political opportunism. Guru the revolutionary had become Guru the reactionary, they claimed. Guru defended those charges by arguing that joining the APC was a change in politics but not a change of values. He said he was transforming from a dissident to a politician.

Whatever your opinion of Guru is: the assertive and combative dissident, or the pragmatic politician, there is one immortal proposition he bequeaths us, which is: Inaction is not an option in the face of oppression. This proposition is neither novel nor unique to Guru. But for post-independent Sierra Leoneans in search of a functional and functioning state, it was Guru who fearlessly and valiantly articulated this proposition as a benchmark and an awakening force in our national consciousness in ’77. It will continue to echo eternally as long as injustices prevail in Sierra Leone. (Just days after his death, the now perennial problems erupted at FBC which resulted in the rustication of 31 students. As Guru taught us in ’77, disturbances at FBC are symptomatic of a larger, deeper national malaise.) And as long as successive governments since ’77 continue to shortsightedly view students’ concerns at FBC as existential threats, Guru’s immortal proposition will not disappear.

Hindolo in Mende means “man-child,” with emphasis on the inseparability of the two. In the epigraph to his poem “Intimations of Immortality”, the English Romantic Poet William Wordsworth states: “The Child is the Father of the Man/And I could wish my days to be/Bound each to each by natural piety.” (Guru the Gardener, my apologies for not quoting Walt Whitman.) Wordsworth may be expressing the view that the child is superior to an adult in his or her appreciation of the beauty of nature as a reflection of the celestial realm. If we substitute Wordsworth’s nature with freedom in Hindolo’s man-child nexus, Guru becomes our intimations of immortality. Hindolo means that the child is indeed the father of the man because the child teaches the father, and what we are when we are young gives birth to what we are when we are grown. And that cycle is immortal. Adieu Guru.

civil sierra leone
'''Civil society, governance and the state of Sierra Leone Civil society, governance and the state of Sierra Leone thumbnail By: John Pa Baimba Sesay - IA, Beijing, China on August 9, 2012.

Wikipedia defines civil society as that arena outside of the family, the state, and the market where people associate to advance common interests. The role of civil society groups in a country’s socio-economic and political growth is as crucial as the need for such groups to always keep to their traditional role of checkmating the excesses of state institutions. (Photo: John Pa Baimba Sesay, IA, Beijing, China)

Civil society work in last 57 months

In June 2007, the World Bank’s Africa Region External Affairs Unit (AFREX), in a report, titled “The Civil Society Landscape in Sierra Leone Understanding Context, Motives and Challenges” wrote that “In conflict affected countries, Civil Society Organizations (CSOs) – in the absence of a strong Government – play a critical role in providing services to citizens, and at times substitute for public institutions and become primary providers of basic social services.” In Sierra Leone, the important role that civil society groups played in the country’s restoration of democracy, in ensuring an end to the civil war and in the fight against corruption need not be overemphasized.

In recent time, we have also seen how civil society groups have tried to ensure the President Koroma led government move in line with its promises prior to attaining the Presidency. President Koroma knows that in the sustenance of democratic values, the role of civil society groups is very crucial. And so far, what President Ernest Bai Koroma has done in the last 57 months or so is to provide the enabling environment wherein, the work of civil society groups, as well as media institutions could go unhindered. If there is anything positive that media groups or civil society groups would say of the present government, it must be with the enabling environment provided thus far. There has never been a time in the political history of President Koroma that a media practitioner has been arrested, not to talk of any disturbance to the work of civil society activists. This in itself is a positive development in our post war peace building efforts.

The Society for Democratic Initiatives is one among civil society/human rights groups in Sierra Leone .This group has been advocating for a law on access to information for over a decade. It has a vision of wanting to “see a transparent, accountable and right free Sierra Leone. The goal of SDI is also to ensure accountability and transparency in governance, advocating for the promotion and protection of people’s right with emphasis on women and children’s right. SDI operates presently in four districts in the country. (http://www.sfdi-sl.org). The freedom of information advocacy has been one of the principal advocacy drives in Sierra Leone. Emmanuel Saffa Abdulai is Executive Director of SDI. He is not just a legal person by profession, but someone that has dedicated most of his time and energy in human right advocacy work in Sierra Leone. He is one of several youths contributing to Sierra Leone’s sustenance of democratic values. From a very humble beginning, his contributions have been great and outstanding.

Given his role in Sierra Leone, especially in his advocacy for a law guaranteeing a law on access to information, I found time to exchange emails with Emmanuel Saffa Abdulai Esq., on a range of national issues, including his views on government’s commitment for a law on FOI, the human right record of Sierra Leone since President Koroma came to power, the aspect of decentralization in terms of progress made and whether he thinks the government has been of success since 2007.

Media/FOI/human right issues:

The advocacy for a law on access to information has been on for over a decade in Sierra Leone. The government of President Ernest Bai Koroma came in, in 2007 with the string determination of enacting a law on access to information. In 2009, a draft of the FOI bill was presented to His Excellency by a coalition of civil society groups on FOI, with SDI taking leadership at the time. At the said ceremony, the President made clear his commitment to enacting the law and since then the Minister of Information has also been playing a crucial role in getting the bill enacted. We have witnessed where the bill was even presented to Parliament for ratification. Emmanuel Saffa Abdulai thinks, there has not been the political will to pass the FOI law. For him “State House does not want the laws pass, but does not want to be seen opposing it. So it goes through the back door talking to MPs not to pass the law….” However, it may not appear as presented by him, since in Sierra Leone, there has always been the observance of separation of powers, with the Executive arm of government allowing the law making body to  work  separately.

And besides, the fact that the government, through the Ministry of Information and Communication has been pushing for such a law is indicative of the very political will that is needed. And it only would mean we need to keep talking to those representing our interests in our House of Parliament for its ratifications.

In fact even with government’s effort, there has also been the involvement of the Sierra Leone Association of Journalists in the drive towards a law on freedom of information. Abdulai Esq. makes the point, that “SLAJ is a media umbrella organization that is doing FOI at its own platform. As an independent organization it has the right to decide who to work with or not. But the end goal is, there are many organizations working on the issues and so it’s a national campaign. The FOI campaign led by SDI under the auspices of the Freedom of Information Coalition has been doing this for ten years. The entirety of the success- drafting bill, making FOI an issue as it is now et al- belong to those young men and woman who have for a decade campaigned for the passage of the bill. I have listened to people say FOI is SDI and or SLAJ, this is ridiculous, at some point, someone has to lead a campaign or an agenda to change things. So if these two institutions are providing such leadership, so let’s stop complaining.”

President Koroma’s human right record has always come under the spotlight, especially so when there has never been a political prisoner under his regime or the imprisonment of media practitioner. According to the President himself, “A culture of rights is taking hold, there are no political prisoners, no journalist has been incarcerated, no person has been executed under my government, and we are promoting the social rights of vulnerable women and children through the Free Health Care Initiative,”(www.expotimesonline.net/index). This is another huge success of his government. On that, Saffa Abdulai Esq. agrees there “has greatly improved and I think we are on the right track. The challenges that we have are part of the democracy evolution. However, we have to pay particular attention to the Sierra Leone Police…” He holds the view; the media should be watched based, based on the given political trend in the country at the moment.

Governance and politics

Another area that President Koroma will be proud of having made great impact is in the area of tackling graft. When he assumed office in 2007, he ensured, in 2008, that the anti-graft commission got the needed independence. An independent anti corruption body will be successful in its work. And true to his words, the ACC was allowed with prosecutorial powers by President Koroma, first in the political history of Sierra Leone. Although Sierra Leone is yet to get a law on Freedom of Information, “without which fighting corruption will be difficult”, Abdulai Esq. however thinks the Anti-corruption Commission is doing its best, but there is need for much more improvement in terms of deliverability. “There is huge amount of prosecution going on the country and am glad that things are happening. WE need to focus now more on public contracts and procurements…”

But what about the decentralization process in Sierra Leone? By 2004, the local government system was reintroduced by the Sierra Leone Government with a view of ensuring participatory governance and service delivery at the local level. So far, there has been much progress since the councils were introduced in 2004. For Abdulai Esq. “a lot of work has been done on local government. The Local government Act 2004 is an example of a major law that under pins transparency and accountability and devolution of powers. That law needs to be implemented logically to have it desired effect. Also, I believe that central government must support the decentralization and devolution process by devolving state institutions and ensuring that subsidies are paid to local councils on time. It is really important for governance to be taken down to the people of Sierra Leone at their local level. There are huge challenges like corruption and normal bureaucratic issues at the local government, but these things will pass, I believe. Institutions and practices will mature and a good system will work.”

There was a political question: whether he is impressed with the overall performance of President Ernest Koroma. He is impressed with many things of this government, “but similarly unimpressed and saddened that an opportunity will be missed…” He started by looking at infrastructural development. ‘Infrastructural development has been a major goal and success. The roads are better, buses are everywhere and I remember calling the Deputy Minister on the buses plying every rout. I am impressed with the country opening up for investment and mining companies mining, but I think a lot needs to be done for us to realize these investments…” Saffa Abdulai Esq. is “also a bit impressed with electricity for the city… It is good to get electricity every day if not every other day. It encourages investment and productivity. Let’s improve on this at a low cost.”

Challenges within four years

Despite the good grades given by Saffa Abdulai, he thinks there are still challenges. He spoke of those in the mining sector, those in governance, and the issue of media and hate speech. Though we have got an upsurge in mining companies investment in the country, he thinks, more attention should be paid to this sector, because, “this country will attract many companies to come here because we have the resources” and suggest we look at the issue of tax holidays given to mining companies. He thinks the country has been polarized and there is need to tackle this problem as well as the challenge of “politics of tribe…and it is a recipe for chaos.” Well, I hope some politicians wanting to fain power by preaching tribal hate will learn from this.

He also thinks the FOI issue should be given attention by government. He talks about the centralization of state power to one region of the county, to which I totally have a different view. A completely differ3nt one as a matter of fact, given the level at which President Koroma has tried to bring Sierra Leoneans together. There has been the involvement of all shades of tribe in Sierra Leone’s governance process, with government Ministers appointed from all regions by President Koroma.

From the above, I am left with the impression, that he appreciates the efforts that this government of Ernest Bai Koroma has been making since he was elected in 2007; though with some areas he thinks attention should be paid. The challenges the country faces like the aspect of it having been polarized has a multifaceted dimension. This is not new and we should even come to appreciate President Koroma’s effort in addressing that. Today a Mendeman, or Loko, Temne and Krio is just as part of government as is with another other tribe in the country. This is a national problem that demands the collective improvement of each and everyone. President Kabba (d) succeeded in the establishment of institutional reforms but when critically viewed in terms of his effort to bringing people together, he was lacking in some way-his cabinet had all but one tribe was missing. This was a challenge for him. But name me any major tribe today that is not part of the governance process in the country.

The need for the media to remain central to its traditional role, as he pointed out is well in placed. But I am also of the view; there has been great improvement in terms of practice and content in present day journalism. Notwithstanding the numerous successes that President Koroma has scored in five years, he knows there are still a number of challenges we need to overcome. And certainly, we ware sure of overcoming them with time. And this is why we have decided to keep asking that we give him another five years of governance.'''

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SIERRA LEONE Center for International Law
SIERRA LEONE Center for International Law CALL FOR PAPERS Interfaces between International and National Legal Orders: An International Rule of Law Perspective The Amsterdam Center for International Law (ACIL) is organising a seminar on 14-15 March 2013 and invites paper proposals from scholars and practitioners of law and related disciplines. The Seminar Theme The seminar explores the evolving interfaces between international and national legal orders from the perspective of the international rule of law. In this seminar, the international rule of law concerns international law regulating states, as well as international institutions and other subjects of international law. The international rule of law could be narrowly defined to encompass procedural requirements, or more broadly to include inter alia human rights, democracy, the separation of powers, and/or accountability. Background The interfaces between international and national legal orders are the points where the actors, norms and procedures which form and maintain the two legal orders interact with one another. These interfaces have significantly evolved due to the extension of the subject matter of international law and its impact on domestic regulatory policies. International actors, norms and procedures play significant roles in shaping the rule of law, human rights and democracy in the domestic legal order. Because of this substantive influence, the formal dualistic perspective on international and national legal orders has become increasingly mismatched with the reality of inter-order interfaces. International scholarship has produced extensive studies to capture the inter-order interfaces primarily from the perspective of national rule of law. Much less recognised is the international perspective, namely, the impact of national law on the rule of law within the international legal order. Given that United Nations General Assembly resolutions also support the rule of law at the international level, the question of whether and how the international rule of law develops through interactions with national law and the national rule of law is worthy of examination. 2 The relationships between these two branches of the rule of law appear multi-faceted. On the one hand, national implementation and compliance with international law may strengthen the international rule of law, as identified by the UN Secretary-General in his March 2012 report (A/66/749) prepared for the high-level meeting of the General Assembly to be held on 24 September 2012. On the other hand, the domestic avoidance and contestation of international law and the decisions of international institutions could also enhance the international rule of law by signalling deficiencies of international law and international institutions in terms of human rights, democracy, accountability, and overall, the rule of law. Angles Against this background, the seminar will address the query as to how the national rule of law and the national reception of international law influence and develop the international rule of law, particularly from the following three angles: 1. The concept of the international rule of law

The broad endorsement states give to the rule of law at the international level is often offset by the conceptual elusiveness of the international rule of law. One fundamental question concerns the extent to which the international rule of law can be conceptually comparable to the national rule of law. Does the international rule of law only signify compliance and procedural requirements or can it include more substantive norms such as human rights, democracy, and the separation of powers? The conceptual comparison between two branches of the rule of law gives rise to the question about the similarities and differences between the authority regulated by the national rule of law on the one hand, and the authority regulated by the international rule of law on the other. For instance, to what extent could the authority exercised by international institutions be compared with that of national governments? What parameters can we use to assess the comparability? 2. The development of the international rule of law through national practices

The domestic application of international law has traditionally contributed to the development of international law in general. It has formed part of new customary international law and treaty interpretation in the form of state practice. It has also served as a basis for general principles of law. Further, the decisions of national courts have been invoked as subsidiary means for the determination of rules of international law. These classic roles attributed to domestic legal practices, however, may not fully capture their presence in the normative development of the international rule of law. Do national practices, especially those that contest international rules or decisions, have any swing-back effect on the development of the international rule of law? Does national contestation, which appears to undermine the international rule of law, actually facilitate its reform? Also, what impact do national laws and national court decisions have on accountability processes in regard to international institutions, such as the United Nations? 3

3. Universality, certainty and diversity in the international rule of law

The role of national contestation in the development of the international rule of law gives rise to the further question as to a possible tension between the universality and certainty of the international rule of law on the one hand, and the diversity of national law on the other. The rule of law is traditionally associated with certainty and predictability. But is this a workable standard in light of diversity across legal systems? How does international human rights law, for instance, preserve national diversity while ensuring the universal standards of human rights and their legal certainty? How should the value of relative uniformity and certainty that may be seen as intrinsic in the rule of law be balanced with the value of diversity? The tension between universality and diversity is related to the question about the legitimacy of international legal principles and rules. Despite the fact that international law has an impact on the domestic rule of law, the international law-making and application processes invite only restricted input from domestic constituencies. If international law and international dispute settlement procedures suffer from legitimacy problems, should they keep a distance by leaving a ‘margin of discretion’ to the national sphere? Could the expansion of the international rule of law undermine the rule of law at the domestic level, as opposed to strengthening it? Papers are invited to explore these angles from normative and empirical standpoints in a variety of international law disciplines. These three angles are interrelated, and multiple angles can be addressed within one paper. Submission of Proposals and the Timeline Paper proposals should include a description of maximum 500 words and the applicant’s curriculum vitae. Submissions should cover work that has not been previously published. At the time of the seminar, the invited authors should present a paper of 7,000-8,000 words, excluding references. It is the intention of the organisers to publish the papers in an edited volume. Paper proposals should be sent by email to Ms. Martine van Trigt at acil-fdr@uva.nl. The deadline is 1 November 2012. Selected participants will be informed by 1 December 2012. Each participant must submit a paper by 22 February 2013 for distribution to the other participants. The seminar takes place on 14-15 March 2013 at the University of Amsterdam.

The sponsoring organisations will cover the speakers’ travelling and accommodation expenses. The seminar is co-sponsored by the Hague Institute for the Internationalisation of Law. For substantive questions, please contact Dr. Machiko Kanetake at M.Kanetake@

The concurrent application of international human rights and humanitarian law
A. ARMED CONFLICT AS THE TRIGGER The concurrent application of international human rights and humanitarian law can happen only when a series of objective conditions are met. International humanitarian law being essentially a body of law applicable to armed conflict, the existence of a situation amounting to an armed conflict is necessary to trigger its applicability in conjunction with international human rights law. The next sections will address the question of what an armed conflict is and what types of armed conflict international humanitarian law applies to. It should, however, be noted that a number of international humanitarian law obligations require action before a conflict begins or after a conflict ends. For example, States must provide training in international humanitarian law to their armed forces in order to prevent potential abuse; States must also encourage the teaching of international humanitarian law to the civilian population; domestic legislation must be adopted implementing its relevant provisions, including the obligation to include war crimes in domestic law; States must also prosecute persons who have committed war crimes. One category of war crimes, grave breaches of the Geneva Conventions and of Protocol I, must be prosecuted according to the principle of universal jurisdiction, i.e., independently of where the crime has been committed and of the nationality of the offender and of the victims. Thus, some violations of international humanitarian law could be established and their perpetrators punished outside the time frame and the geographical context of an actual armed conflict. 34 The concurrent applicability of international human rights and humanitarian law depends on the objective legal conditions required for the corresponding legal norms to apply. In this particular case of the relationship between international human rights law and international humanitarian law, it is the existence of an armed conflict that will trigger the application of the latter and, thus, of the complementary application of international human rights and international humanitarian protections. The following sections will discuss the different types of conflict as defined in conventional and customary international law and will also analyse the challenges posed by certain uses of force that do not reach the threshold of an armed conflict. 1. nternational armed conflict Article 2 common to the Geneva Conventions states that “[i]n addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Protocol I to the Geneva Conventions extends the situations covered by common article 2, stating that the situations to which the Protocol applies “include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination” (art. 1.4). While the Geneva Conventions and Protocol I indicate the type of situations to which they will apply, they do not provide a clear definition of “armed conflict”. The existence of an armed conflict is a precondition for the application of international humanitarian law, but the existing body of rules is not clear about the elements necessary to determine that a situation between two States has reached the threshold of an armed conflict. Indeed, common article 2 limits the scope of the Geneva Conventions to conflicts in which one or more States have recourse to armed force against another State. The commentary to the Geneva Conventions provides further guidance when it indicates that “any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place.”34 Furthermore, the International Criminal Tribunal for the former Yugoslavia has stated that “an armed conflict exists whenever there is a resort to armed force between States”.35 One of the problems of the lack of a clear definition is that, for example, it is uncertain whether international humanitarian law would apply in low-intensity military confrontation, such as border incidents or armed skirmishes. International law does not provide guidance on the precise meaning of “use of force” or “armed conflict” in the context of the Charter of the United Nations and of the Geneva Conventions. While some claim that every act of armed violence between two States is covered by international humanitarian law of international armed conflicts, others consider that a threshold of intensity should be applied.36 Notwithstanding this lack of clarity, it is important to remember that, irrespective of the existence of an actual armed conflict, international human rights law continues to apply. As the hostilities unfold, international humanitarian law will be triggered and its protections and standards will complement, complete and in certain cases further clarify international human rights protections, guarantees and minimum standards. 34 Jean Pictet et al., eds., Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary (Geneva, ICRC, 1952), p. 32. 35 Prosecutor v. Duško Tadi’c, case No. IT-94-1-A, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995, para. 70. 36 See, in this respect, the International Criminal Tribunal for the former Yugoslavia’s decision on Tadi’c’s defence motion for interlocutory appeal on jurisdiction, where the Appeals Chamber indicates that hostilities in the former Yugoslavia in 1991 and 1992 “exceed the intensity requirements applicable to both international and internal armed conflicts.” Ibid. 2. Non-international armed conflict International humanitarian law contains two different legal frameworks dealing with non-international armed conflicts. On the one hand, article 3 common to the Geneva Conventions stipulates that “in the case of armed conflict not of an international character” a series of minimum provisions of international humanitarian law shall apply.37 The Conventions do not define what “non-international armed conflict” means, but it is now commonly accepted that it refers to armed confrontations between the armed forces of a State and non-governmental armed groups or between non-State armed groups.38 Protocol II to the Geneva Conventions provides that the Protocol applies to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (art. 1). The International Criminal Tribunal for the former Yugoslavia’s Appeals Chamber has indicated that an armed conflict exists whenever there is protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. It has 37 According to common article 3, these minimum guarantees are: “(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, 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. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for.” 38 See ICRC, “How is the term ‘armed conflict’ defined in international humanitarian law?”, Opinion Paper, March 2008.36 37 further indicated that international humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a peaceful settlement is achieved.39 In the Haradinaj case, the Trial Chamber stated that the criterion of protracted armed violence is to be interpreted as referring more to the intensity of the armed violence than to its duration. In addition, armed groups involved must have a minimum degree of organization. The Trial Chamber summarized the indicative factors that the Tribunal has relied on when assessing the two criteria. For assessing the intensity these include “the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the [United Nations] Security Council may also be a reflection of the intensity of a conflict.” On the degree of organization an armed group must have to make hostilities between that group and governmental forces a non-international armed conflict, the Tribunal has stated that an “armed conflict can exist only between parties that are sufficiently organized to confront each other with military means. […] [I]ndicative factors include the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as ceasefire or peace accords.”40 Similarly, ICRC proposes those two criteria of intensity of violence and organization of non-State parties as determining the lower threshold for 39 Prosecutor v. Duško Tadic´, para. 70. 40 Prosecutor v. Ramush Haradinaj et. al., case No. IT-04-84-T, Judgement of 3 April 2008, paras. 49 and 60. the application of international humanitarian law of non-international armed conflicts: “First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the Government is obliged to use military force against the insurgents, instead of mere police forces; “Second, non-governmental groups involved in the conflict must be considered as ‘parties to the conflict’, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.”41

It should be noted that the regulations in Protocol II concerning non-international armed conflicts are narrower than those under common article 3. For example, Protocol II introduces a requirement of territorial control for non-State actors. Furthermore, while Protocol II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organized armed groups, common article 3 applies also to armed conflicts occurring only between non-State armed groups.42 Moreover, Protocol II requires a command structure for non-State armed groups, which is not expressly included in common article 3. It can be difficult to establish whether these requirements are met in a particular situation. Determining what constitutes “responsible command” is difficult as the command of an armed group might change over time. Ascertaining the exercise of control over a part of the territory is particularly complex as armed groups rarely maintain a single sustained area of operations, but may move frequently from place to place. It is 41 See ICRC, “How is the term “armed conflict” defined in international humanitarian law?” 42 In this context ICRC has indicated that “Protocol II ‘develops and supplements’ common article 3 ‘without modifying its existing conditions of application’. This means that this restrictive definition is relevant for the application of Protocol II only, but does not extend to the law of [non-international armed conflicts] in general.” See ICRC, “How is the term “armed conflict” defined in international humanitarian law?”38 39 beyond the scope of this publication to examine the details of practice and jurisprudence on this issue. However, regional and international courts, ICRC and numerous academics have produced opinions that explain in some detail how these criteria may be interpreted. In any case, it should be noted that even if the stricter criteria of Protocol II are not entirely met, a situation may still be covered by common article 3 as international humanitarian law’s “minimum guarantee”.43 As indicated above, unlike article 1 of Protocol II, common article 3 of the Geneva Conventions does not make the same references to “responsible command”, “exercise of control” or “organized armed groups” and, therefore, has a significantly lower threshold of application. Under common article 3, an armed conflict could potentially exist between two armed groups, without any involvement of State forces. Common article 3 is, thus, seen as defining the lowest threshold of armed conflict, below which there is no armed conflict and international humanitarian law is not applicable. Finally, it is important to recall, as indicated above, that in non-international armed conflicts the intensity of hostilities plays a fundamental role in triggering the application of international humanitarian law and, thus, the concurrent applicability regime. So to distinguish an armed conflict from other forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. This question is relevant because, as has already been indicated, the application of international humanitarian law can be triggered only through the existence of an armed conflict. There is, however, no specific organ or authority with special responsibility for determining whether an armed conflict is taking place or not. It is not necessary for 43 The International Court of Justice held that “article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’.” Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, para. 218. the parties to a conflict to recognize that actual armed conflict exists. This determination must be made primarily on the basis of the situation on the ground, according to the relevant provisions of international humanitarian law. In addition, public statements by ICRC or the United Nations would be significant in determining that there is an armed conflict. Why is it important to determine when the applicability of international humanitarian rules has been triggered? International human rights law and international humanitarian law share a number of protections and standards aimed at protecting civilians from the effects of war. Yet, because international humanitarian law gives States more leeway when they use armed force (for example, on the use of deadly force) and, according to certain States, when they detain enemies without judicial procedure (like prisoners of war in international armed conflicts), there may be a temptation to invoke rules of international humanitarian law in a situation where the threshold of armed force has not been reached. In those unclear cases it is essential to consider international human rights law as the only applicable legal regime, until such time that the threshold and conditions of an armed conflict have been met. 3. The distinction between international and non-international armed conflict in contemporary law and practice At various moments in history efforts have been made to remove the distinction between international and non-international armed conflicts in order to create a single body of international humanitarian law common to all situations of armed conflict. Although these efforts have not been fully successful, developments in case law, international practice and the actual character of armed conflict are de facto blurring the distinction between the two. As a result, the higher protections previously ascribed only to international armed conflicts, or only to the more formal non-international armed conflicts defined under Protocol II, are now being applied even to the category of conflict defined under common article 3. 40 41 Moreover, international human rights law has continued to expand through jurisprudence and the addition of new human rights protections in the context of armed conflict, irrespective of whether the conflict is international or non-international. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, for instance, creates international human rights obligations regarding the recruitment and use of children in armed groups, in times of peace and in times of war, irrespective of whether an armed conflict is international or non-international. As the range of international human rights protections particularly pertinent to situations of armed conflict increases, and because international human rights law applies to both international and non-international conflict, it becomes arbitrary to exclude similar international humanitarian law protections that had previously been reserved for one category of conflict. Finally, recent developments show a sharp increase in the number and intensity of non-international armed conflicts, as well as a growing number of United Nations peacekeeping missions and international coalitions to assist a State in an armed conflict within its own territory. All these factors have combined to render the application of traditional distinctions of international humanitarian law between international and non-international armed conflicts extremely challenging. It is, however, uncontroversial that combatant immunity against prosecution for acts of hostility not prohibited by international humanitarian law (a central feature of prisoner-of-war status in international armed conflicts) and the rules on military occupation cannot be applied by analogy to non-international armed conflicts. In addition, when bringing international humanitarian law of non-international armed conflicts closer to that of international armed conflicts, it should be kept in mind that the former also applies to non-State armed groups, which are often less able to comply with the more demanding rules of international humanitarian law of international armed conflicts. B. TERRITORY AND APPLICABILITY OF INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW According to the traditional view, the principle of territoriality has been one of the key elements concerning the application of international human rights law and, to a lesser extent, of international humanitarian law. It was argued that those rights holders towards whom the State had the obligation to respect, protect and fulfil their human rights could be only those persons within its territory because they were directly under its jurisdiction. Thus, international human rights law was considered to be essentially territorial. For international humanitarian law, it has generally been considered that the territorial link is less important and the obligations and protections apply whenever and wherever armed conflict is taking place. This means, for example, that a State fighting on the territory of another is bound to respect international humanitarian law in the same way as if it were fighting on its own territory. Modern conflict has transformed this approach to international human rights law and international humanitarian law. As will be explained below, this has led to the recognition of the extraterritorial application of international human rights law. Moreover, challenges have been raised as to whether international humanitarian law remains applicable beyond the zone of actual combat. 1. International human rights law and the territorial element A question that often arises is whether States are bound to comply with their international human rights obligations only on their own territory. It is uncontroversial that most human rights protect not only citizens but also foreigners. It has sometimes been contested that conventional human rights obligations bind States outside their territory. The International Covenant on Civil and Political Rights stipulates that “[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in 42 43 the […] Covenant” (art. 2.1). A restrictive interpretation of this provision considers that States cannot be held accountable for human rights violations committed outside their territory.44 This interpretation, however, does not properly take into consideration the Covenant’s object and purpose. In this respect, the Human Rights Committee has stated that a State party “must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” The Committee has interpreted that rights must be available to all individuals who are in the territory or subject to the jurisdiction of the State. Moreover, it has indicated that the principle of extraterritorial protection “also applies to those within the power or effective control of the forces of a State party acting outside its territory”.45 This conclusion is supported by the International Court of Justice, which concluded that “the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”46 The Committee against Torture has indicated that “the State party should recognize and ensure that the Convention applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction”. The Committee defined the territory under the State party’s jurisdiction in terms of all persons under the effective control of the State’s authorities, of whichever type, wherever located in the world.47 The International Court of Justice also held that article 2 of the Convention on the Rights of the Child imposes obligations on States parties to each child within their jurisdiction and observed that the Convention could be applied extraterritorially.48 In a later case it recalled that international 44 See, for example, the point of view of the United States of America expressed in a periodic report to the Human Rights Committee (CCPR/C/USA/3, annex I). 45 General comment No. 31 (2004), para. 10. 46 Legal Consequences of the Construction of a Wall, para. 111. 47 CAT/C/USA/CO/2, paras. 14–15. 48 Legal Consequences of the Construction of a Wall, para. 113. human rights instruments are applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.49 While the Human Rights Committee and the Committee against Torture have focused on persons under the jurisdiction and effective control of the State, irrespective of their location, the International Court of Justice has found that, for economic, social and cultural rights, there is a stronger link to the territory of the State. It indicated that while the International Covenant on Economic, Social and Cultural Rights contains no provision on its scope of application, “[t]his may be explicable by the fact that this Covenant guarantees rights which are essentially territorial. However, it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction.” In other words, the Court considers that the Covenant could be applied outside the territory of the State as long as that State has effective control—it exercises jurisdiction—over the foreign territory. That is the case in situations of occupation, in which the occupying State exercises effective control over the occupied territory. The Court examined the analysis by the Committee on Economic, Social and Cultural Rights of the applicability of the Covenant to the Occupied Palestinian Territory. It noted that the Committee had “reiterated its concern about Israel’s position and reaffirmed ‘its view that the State party’s obligations under the Covenant apply to all territories and populations under its effective control’.” The Court observed “that the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power. In the exercise of the powers available to it on this basis, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights.”50 While the territorial element is one of the criteria to delimit the scope of human rights obligations, many of these obligations also refer to persons under the jurisdiction of a State. This criterion covers persons who are still in the power of a State, irrespective of whether they are physically 49 Armed Activities on the Territory of the Congo, para. 216. 50 Legal Consequences of the Construction of a Wall, para. 112.44 45 in the territory of that State. This could be the case of a person detained by agents of a State outside its territory. This could also, under certain circumstances, cover cases of violations committed against persons who are temporarily placed under the control of the State, for example, when it carries out military incursions in another State. In conclusion, it is uncontroversial that everyone, everywhere in the world, benefits from human rights. It is, therefore, logical to assert that States should be bound to comply with their obligations in respect of all persons under their jurisdiction, irrespective of whether they are in their territory. 2. Obligations under international humanitarian law beyond the vicinity of an armed conflict Concerning the territorial scope of international humanitarian law, the International Criminal Tribunal for the former Yugoslavia has provided criteria leading to the determination that obligations of international humanitarian law apply not only to the region where hostilities are taking place, but to the entire territory of the parties to the conflict. Its Appeals Chamber has held that the provisions of the Geneva Conventions “suggest that at least some of the provisions of the Conventions apply to the entire territory of the parties to the conflict, not just to the vicinity of actual hostilities.” It has recognized that certain obligations of international humanitarian law have a particular territorial scope and their geographical application may, therefore, be limited. However, it has noted that other obligations, “particularly those relating to the protection of prisoners of war and civilians, are not so limited. […] Geneva Convention IV protects civilians anywhere in the territory of the Parties. […] In addition to these textual references, the very nature of the Conventions—particularly Conventions III and IV—dictates their application throughout the territories of the parties to the conflict”. Regarding non-international armed conflicts, it noted that until a peace settlement is achieved, international humanitarian law continues to apply to the whole territory under the control of a party, whether or not actual combat takes place there.51 The Tribunal later confirmed this interpretation. Its Trial Chamber held that if the conflict in Bosnia and Herzegovina was considered international “the relevant norms of international humanitarian law apply throughout its territory until the general cessation of hostilities, unless it can be shown that the conflicts in some areas were separate internal conflicts, unrelated to the larger international armed conflict.” If the conflict was considered internal then “the provisions of international humanitarian law applicable in such internal conflicts apply throughout those areas controlled by the parties to the conflict, until a peaceful settlement is reached.”52 C. LIMITATIONS ON THE APPLICATION OF INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW PROTECTIONS As a general principle, the legal applicability of international human rights protections is not affected by conflicts. However, international human rights law is characterized by an exceptional regime, by which under certain strict conditions States may limit their fulfilment or their protection of certain rights. These conditions frequently take place in armed conflict, even if they are not limited to such situations. Specifically, under international human rights law it is possible for States to derogate from certain human rights obligations and to impose limitations on the exercise of certain rights. To a lesser extent, derogations from rules protecting civilians are admissible in some circumstances in international humanitarian law, and several of its rules allow exceptions for reasons of military necessity or security. States may also register reservations on the extent to which some provisions of a particular international humanitarian law or human rights instrument are applicable. Significant conditions apply to States that wish to use any 51 Prosecutor v. Duško Tadic´, paras. 68 and 70. 52 Prosecutor v. Zejnil Delalic´ et al., case No. IT-96-21-T, Judgement of 16 November 1998, para. 209. See also Prosecutor v. Tihomir Blaškic´, case No. IT-95-14-T, Judgement of 3 March 2000, para. 64.46 47 of these options to restrict the applicability of international human rights and humanitarian law. The following sections will analyse these conditions and clarify how these exceptional regimes could be linked to situations of armed conflict. 1. Derogation from human rights obligations In certain exceptional circumstances, States are allowed to derogate from their accepted human rights obligations. The International Covenant on Civil and Political Rights, for example, recognizes that “[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant […]” (art. 4.1).53 Yet, derogations are subject to stringent conditions: The existence of a public emergency: the Human Rights Committee has stated that not every armed conflict qualifies as a state of emergency. In that respect, the Committee has indicated that “[t]he Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances.”54 Furthermore, the European Court of Human Rights has defined public emergencies as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed”;55

53 Derogation clauses can also be found in the American Convention on Human Rights (art. 27) and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 15). 54 General comment No. 29 (2001), para. 3. 55 Case of Lawless v. Ireland (No. 3), application No. 332/57, Judgement of 1 July 1961, para. 28. 	Temporary: derogation measures are temporary and must be lifted as soon as the public emergency or armed conflict ceases to exist;56 Necessary and proportional: derogation measures must be strictly required by the emergency.57 Furthermore, derogations cannot be justified when the same aim could be achieved through less intrusive means; Consistent with other obligations under international human rights and humanitarian law: the International Covenant on Civil and Political Rights (art. 4.1) indicates that States may take measures derogating from their international human rights obligations only provided that such measures are not inconsistent with their other obligations under international law. The Human Rights Committee has indicated that “during armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant to prevent the abuse of a State’s emergency powers”;58 Procedural guarantees: the Human Rights Committee notes that “the provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights.”59

Certain international human rights instruments explicitly prohibit derogation from some provisions. For example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (art. 2.2).60 The International Covenant on Civil and Political Rights explicitly 56 International Covenant on Civil and Political Rights (art. 4.1). See also E/CN.4/ Sub.2/1997/19, para. 69. 57 See International Covenant on Civil and Political Rights (art. 4.1). 58 General comment No. 29 (2001), para. 3. 59 Ibid., para. 15. See also below. 60 See similar clause in the International Convention for the Protection of All Persons from Enforced Disappearance (art. 1.2).48 49 prescribes that no derogation may be made concerning the right to life, the prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent, the prohibition of slavery, slave trade and servitude, the prohibition of imprisonment because of the inability to fulfil a contractual obligation, the principle of legality in the field of criminal law, i.e., the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty, the recognition of everyone as a person before the law, and the freedom of thought, conscience and religion (art. 4.2). In its general comment No. 29 (2001), the Human Rights Committee further includes the prohibition against the taking of hostages, abductions or unacknowledged detention; discrimination, deportation or forced transfer of minorities; incitement to discrimination, hostility or violence through advocacy of national, racial or religious hatred. It has also stressed that no derogation can be made from peremptory norms of international law.61 The Human Rights Committee has also indicated that to assess the scope of legitimate derogation from the Covenant, one criterion can be found in the definition of certain human rights violations as crimes against humanity. In this respect, the Committee has asserted that “if action conducted under the authority of a State constitutes a basis for individual criminal responsibility for a crime against humanity by the persons involved in that action, article 4 of the Covenant cannot be used as justification that a state of emergency 61 The Committee indicated that “[t]he enumeration of non-derogable provisions in article 4 is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law.” The Committee further stated that “the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, paragraph 2. States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence” (general comment No. 29 (2001), para. 11). exempted the State in question from its responsibility in relation to the same conduct.”62 Furthermore, the non-derogable character of these rights entails States’ obligation to provide for adequate procedural guarantees, including often judicial guarantees, in particular the right to habeas corpus, i.e., the right to challenge before a court the lawfulness of any detention. The Human Rights Committee has reiterated that the provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. In this respect, article 4 may not be resorted to in a way that would result in derogation from non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of articles 14 and 15.63 Given that international humanitarian law deals with armed conflicts, which are in essence emergency situations, it is not subject to derogations. Nevertheless, as far as the rules on protected civilians are concerned, Geneva Convention IV allows for derogations in respect of certain persons (art. 5). On its own territory, a party may deprive a person suspected of or engaged in activities hostile to the security of the State of rights and privileges under the Convention, which, if exercised in favour of that person would be prejudicial to the security of that State. In occupied territories, such derogations may affect only communication rights. In any event, such persons must be treated with humanity and may not be deprived of their right to a fair trial. 2. Lawful limitations on the exercise of certain human rights Under the International Covenant on Civil and Political Rights, some articles that define specific rights, including the rights to freedom of religion, movement, expression, peaceful assembly and association, also 62 Ibid., para. 12. 63 Ibid., para. 15.50 51 include terms allowing limitations on the extent to which the right can be exercised. The International Covenant on Economic, Social and Cultural Rights accepts the possibility of limitations on rights protected by the Covenant in general (art. 4). Limitations can be applied in times of armed conflict as well as at other times. The possibility of imposing limitations is conditioned as follows: Necessary and prescribed by law: States are restricted by the language of the treaty provisions themselves. For example, article 18.3 of the International Covenant on Civil and Political Rights provides that “[f]reedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” Article 12.3, on liberty of movement, contains a similar provision; Compatible with the right itself and the promotion of the general welfare: for example, article 4 of the International Covenant on Economic, Social and Cultural Rights provides that “the State may subject [Covenant] rights only to such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”; Proportionality and “intrusiveness”: international jurisprudence and practice have insisted on the fact that restrictions to human rights must observe the principle of proportionality and must limit to the maximum extent possible their repercussions on the enjoyment of other rights. The International Court of Justice, citing the Human Rights Committee’s general comment No. 27 (1999) on freedom of movement, noted that the restrictions on human rights “must conform to the principle of proportionality” and “must be the least intrusive instrument amongst those which might achieve the desired result”. It applied similar conditions to its assessment of the limitations on the enjoyment of economic, social and cultural rights resulting from the construction of the wall.64

64 Legal Consequences of the Construction of a Wall, para. 136. In relation to international humanitarian law, some individual norms provide in certain circumstances for the possibility of exceptions to the normal obligations. Sometimes a measure is admissible if it is necessary for security reasons65 or when a “grave emergency involving an organized threat to the security of the Occupying Power” exists.66 While civilians, unlike combatants, may normally not be interned, a belligerent may intern protected civilians when its security “makes it absolutely necessary”67 and an occupying Power may do so for “imperative reasons of security”.68 A State may refuse individual relief consignments for “imperative reasons of security.”69 States may subject the activities of relief organizations to measures they “consider essential to ensure their security.”70 Other obligations may be derogated from for “imperative military reasons”,71 when it is “rendered absolutely necessary by military operations”72 or where an “unavoidable military necessity” exists.73 3. Reservations to international humanitarian and international human rights treaty obligations It is established practice in international law that States, under certain circumstances, may at the time of ratification limit the applicability of a given provision in the treaty by lodging a reservation. According to the Vienna Convention on the Law of Treaties, reservation means “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports 65 Geneva Convention IV, art. 27. 66 Ibid., art. 75. 67 Ibid., art. 42. 68 Ibid., art. 78. 69 Ibid., art. 62. 70 Ibid., art. 142, and Geneva Convention III, art. 125. 71 Geneva Convention IV, art. 49. 72 Ibid., art. 53. 73 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, art. 11.2.52 53 to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” (art. 2.1 (d)). Entering reservations on international human rights or international humanitarian treaties is legal under international law insofar as they respect the provisions of article 19 of the Vienna Convention on the Law of Treaties. This Convention, which to a great extent codifies existing customary law, indicates that reservations can be formulated if the treaty itself allows it or, if the treaty is silent, if the reservation is not incompatible with the purpose and object of the treaty. International law requires a series of conditions for reservations to be valid. Reservations to treaties of international humanitarian law are quite rare. However, State parties’ approach to reservations to the International Covenant on Civil and Political Rights has prompted the Human Rights Committee to indicate that reservations to certain provisions may not be compatible with its object and purpose. The Committee noted in its general comment No. 24 (1994) that a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he or she proves his or her innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language.74 The Committee on the Elimination of Discrimination against Women finds it unacceptable that States reserve the commitment to pursue by all appropriate means and without delay a policy of eliminating discrimination 74 General comment No. 24 (1994) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, para. 8. against women as embodied in article 2 of the Convention.75 Equally unacceptable is the reservation on the obligation to eliminate discrimination against women in all matters relating to marriage and family relations as embodied in article 16.76 Reservations on these two provisions render the State 54

The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-State Entities are Parties
The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-State Entities are Parties

(Fourteenth Commission, Reporter: Mr Milan Šahoviæ)

(The French text is authoritative. The English text is a translation.) The Institute of International Law, Recalling its Resolutions “Droits et devoirs des Puissances étrangères, au cas de mouvement insurrectionnel, envers les gouvernements établis et reconnus qui sont aux prises avec l’insurrection” (Neuchâtel Session, 1900), “The Principle of Non-Intervention in Civil Wars” (Wiesbaden Session, 1975) and “The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States” (Santiago de Compostela Session, 1989) ;

Recalling further its Resolutions on the “Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged” (Zagreb Session, 1971) and on the “Conditions of Application of Rules, Other than Humanitarian Rules, of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged ” (Wiesbaden Session, 1975) ;

Considering that armed conflicts in which non-State entities are parties have become more and more numerous and increasingly motivated in particular by ethnic, religious or racial causes ;

Noting that,  as  a  consequence,  the  civilian  population  is  increasingly  affected  by internal armed conflicts and ultimately bears the brunt of the resulting violence, causing great suffering, death and privation ;

Noting that armed conflicts in which non-State entities are parties do not only concern those States  in  which  they  take  place,  but  also  affect  the  interests  of  the  international community as a whole ;

Bearing in mind that, in the last fifty years, the principles of the United Nations Charter and of human rights law have had a substantial impact on the development and application of international humanitarian law ; Recalling the ruling of the International Court of Justice that the obligation laid down in Article 1 common to the Geneva Conventions “to respect” the Conventions and to “ensure respect” for them “in all circumstances” derives from general principles of international humanitarian law, with the consequence that it has acquired the status of an obligation of customary international law ;

Emphasizing the ruling of the International Court of Justice that Article 3 common to the Geneva Conventions of 1949 reflects “elementary considerations of humanity” and that the fundamental rules of humanitarian law applicable in armed conflicts “are to be observed ... because they constitute intransgressible principles of international customary law” ;

Considering the  ruling  of  the  International  Criminal  Tribunal  for  the  Former Yugoslavia whereby many principles and rules previously applicable only in international armed conflicts are now applicable in internal armed conflicts and serious violations of international humanitarian law committed within the context of the latter category of conflicts constitute war crimes ;

Supporting  the   prosecution   and   punishment   by   national   jurisdictions   of   those responsible for war crimes, crimes against humanity, genocide or other serious violations of international humanitarian law, as well as the establishment of international tribunals entrusted with this task ;

Recognizing that, under Article 7 of the Rome Statute of the International Criminal Court, crimes against humanity can be committed by persons acting for States or non-State entities ;

Noting that the actions undertaken by the Security Council under Chapter VII of the Charter in armed conflicts in which non-State entities were parties confirm that respect for international humanitarian law is an integral element of the security system of the World Organization ;

Welcoming the United Nations Secretary General's regulation of 6 August 1999 on the Observance by United Nations Forces of international humanitarian law which reaffirms their obligation to comply strictly with humanitarian law, in particular as to the protection of the civilian population, and provides for the possibility of prosecuting members of the military personnel of such Forces in case of violations of humanitarian law, in particular in situations of internal armed conflicts ;

Welcoming also the important role played by the International Committee of the Red Cross (ICRC) in recent conflicts to which non-State entities were parties in seeking to ensure humanitarian protection for all victims and in inviting the parties to such conflicts to abide by elementary principles of humanity, notably to spare the civilian population the effects of violence and devastation ;

Considering that it is desirable that international humanitarian law be reconsidered and adapted to new circumstances, so as to reinforce respect for this law and the protection of victims in armed conflicts in which non-State entities are parties ;

Adopts this Resolution :

I.        For the purposes of this Resolution :

- 	the expression “armed conflicts in which non-State entities are parties” means internal armed conflicts between a government’s armed forces and those of one or several non-State entities, or between several non-State entities ; also included are internal armed conflicts in which peacekeeping forces intervene ;

- 	the expression “non-State  entities”  means  the parties  to internal  armed  conflicts  who oppose the government’s armed forces or are fighting entities of a similar nature and who fulfill the  conditions  set  forth  in  Article 3  common  to  the    Geneva  Conventions  of  1949  on  the Protection of Victims of War or in Article 1 of the 1977 Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

II. All parties to armed conflicts in which non-State entities are parties, irrespective of their legal status, as well as the United Nations, and competent regional and other international organizations  have   the  obligation   to  respect   international   humanitarian   law  as  well  as fundamental human rights. The application of such principles and rules does not affect the legal status of the parties to the conflict and is not dependent on their recognition as belligerents or insurgents.

III. Respect for international humanitarian law and fundamental human rights constitutes an integral part of international order for the maintenance and reestablishment of peace and security, in particular in armed conflicts in which non-State entities are parties.

IV. International law applicable  to armed conflicts  in which non-State  entities are parties includes :

-         Article 3 common to the Geneva Conventions of 1949 as basic principles of international humanitarian law ;

-         Protocol II and all other conventions applicable to non-international armed conflicts ;

-         customary  principles  and  rules  of  international  humanitarian  law  on  the  conduct  of hostilities and the protection of victims applicable to internal armed conflicts ;

-         the principles and rules of international law guaranteeing fundamental human rights ;

-         the principles and rules of international law applicable in internal armed conflicts, relating to war crimes, crimes against humanity, genocide and other international crimes ;

- 	the principles of international law “derived from established custom, from the principles of humanity and from dictates of public conscience.”

V.       Every State and every non-State entity participating in an armed conflict are legally bound vis-à-vis each other as well as all other members of the international community to respect international humanitarian law in all circumstances, and any other State is legally entitled to demand respect for this body of law. No State or non-State entity can escape its obligations by denying the existence of an armed conflict.

VI. In cases of serious violations of international humanitarian law or fundamental human rights, the United Nations and competent regional and other international organizations have the right to adopt appropriate measures in accordance with international law.

VII. Without prejudice to the functions and powers which the Charter attributes to the organs of the United Nations, in case of systematic and massive violations of humanitarian law or fundamental human  rights,  States,  acting  individually  or  collectively,  are  entitled  to  take diplomatic, economic and other measures towards any party to the armed conflict which has violated its obligations, provided such measures are permitted under international law.

VIII. Any serious violation of international humanitarian law in armed conflicts in which non- State entities are parties entails the individual responsibility of the persons involved, regardless of their status or official position, in accordance with international instruments that entrust the repression of these acts to national or international jurisdictions.

The competent authorities of a State on the territory of which is found a person against whom is alleged a serious violation of international humanitarian law committed in a non- international armed conflict are entitled to prosecute and try such a person before their courts; they are urged to do so.

IX. In order to achieve a better protection for the victims in armed conflicts in which non- State entities are parties and taking into account the experience of recent armed conflicts of a non-international character the following measures should be considered :

-         the conclusion by the parties to such conflicts of special agreements, in accordance with Article 3 paragraph 2 common to the Geneva Conventions of 1949, on the application of all or part of the provisions of the Conventions ;

-         the support of States, the United Nations, the ICRC as well as other international bodies of a humanitarian character for measures to verify and oversee the application of international humanitarian law in internal armed conflicts ; furthermore, should the State concerned claim that no internal armed conflict has broken out, the authorisation given to the United Nations or any other   competent   regional   or   international   organisation   to   establish   impartially   whether international humanitarian law is applicable ;

-         the application of Protocol II in all non-international armed conflicts, without waiting for its formal revision ;

-         the amendment of Protocol II, with a view to complementing its rules and in particular so as :

(a) 	to establish  an  impartial  and  independent  international  body  designed  to  investigate respect for international humanitarian law (cf. Article 90 of Protocol I) ;

(b) 	to add  a  grave  breaches  provision  addressing,  in  particular,  issues  of  jurisdiction, extradition and surrender to an international criminal jurisdiction.

X.       To the extent that certain aspects of internal disturbances and tensions may not be covered by international humanitarian law, individuals remain under the protection of international law guaranteeing fundamental human rights. All parties are bound to respect fundamental human rights under the scrutiny of the international community.

XI. The Institute welcomes and encourages the progressive adaptation of the principles and rules relating to internal armed conflicts to the principles and rules applicable in international armed conflicts. Therefore it is desirable and necessary that States, the United Nations and competent regional and other international organizations, drawing special inspiration from the important work done by the ICRC in this field, draft and adopt a convention designed to regulate all armed conflicts and protect all victims, regardless of whether such conflicts are international, non-international or of a mixed character.

XII. All States and non-State entities must disseminate the principles and rules of humanitarian law and fundamental human rights which are applicable in internal armed conflicts.



(25th August 1999)