What is International Humanitarian Law?

The following interview appeared in Humanitarian Law Project newsletter,  Human Rights Action, December 1995
 
By Christopher Beaumont
 
Karen Parker is the chief delegate to the United Nations on behalf of the Humanitarian Law Project (IHLP).  For the past 15 years, she has investigated humanitarian and human rights law violations around the globe,  and assisted indigenous human rights workers in bringing their concerns before the U.N.  In 1983, she pioneered the groundbreaking international law defense of Central American refugees and sanctuary workers arrested for aiding them.  She recently authored a detailed report on the Indian occupation of Kashmir, and co-authored an article on the legal basis for compensation of nearly 200,000 girls and women raped as part of Japanís World War II program of Comfort Womenî.
 
How would you define humanitarian law?
 
KAREN PARKER:  Humanitarian law is international law that applies in times of armed conflict.
 
How does it differ from human rights law?
 
KP:  Human rights law applies in peacetime, and to some extent during wartime as well.  The Universal Declaration of Human Rights and two related treaties are the fundamental documents of what we call  international human rights law.  The Geneva Conventions, on the other hand, are treaties of international humanitarian law, which applies specifically to armed conflict.
 
Human rights law also differs somewhat from what we call civil rights law, which is  one small dimension of human rights law.  International human rights law  governs not just civil rights, as we have in this country, but also economic, social and cultural rights, which to date we have not achieved in this country.
 
Tell us a little about the history of the Geneva Conventions and the  Protocols.
 
KP:  The Geneva Conventions arose in response to the atrocities of war.  The first Geneva Convention was developed in 1864.  It called on the warring parties to respect the right of medical personnel assisting soldiers in the field.   The 1949 Conventions, which are the current rules, were a response to the atrocities of WW2.  The  four conventions protect combatants in the field, combatants at sea, prisoners of war and civilians.   The protection for civilians  includes the provision of humanitarian aid to noncombatants and wounded combatants.
 
The Protocol Additionals, added in 1977, are considered expansions to the 1949 Conventions, rather than new documents.  They were in part an answer to the atrocities of the Vietnam War and in part a response to the  long years of apartheid and national liberation struggles in Africa.    The first protocol expands international armed conflict rules to  govern wars of self-determination and wars against racist regimes.  The second protocol expands the protections in civil war or what we sometimes call ìinternal armed conflict."
 
Track for us, if you would, the route of a humanitarian law issue; from complaint, to debate at the United Nations, to possible resolution, to punishment or correction, if any.
 
KP:  When the Humanitarian Law Project finds out about an issue, itís usually because persons involved in an armed conflict have sought us out, or we have sought them out.   In Mexico, weíve sent delegates during the elections, and into areas where there is civil war.  Because of the violations occurring, the parties in question wanted to have issues raised
at the UN.
  
What we do first is  gather information.  Then we go to the UN bodies, in particular the UN Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and Protection of  Minorities.   To date, we have presented  reports on Mexico, on the armed conflict in Croatia, Bosnia, El Salvador and Guatemala, as well as the conflicts in Kashmir, Burma and other places.  We present  information  collected from our own investigation and reports weíve received from  other organizations and contacts.  These reports are circulated in addition to being delivered in speech from on the floor of the U.N.
 
Although the governments and members of the sub-commission introduce most of these conflicts have enormous political overtones.    In addition, we are allowed to submit statements for publication by the U.N.   This material is then circulated to all the UN depository libraries.  In this way, we bring tremendous pressure against governments, since the majority of conflicts around the world carry enormous political overtones.
 
There are  also specific human rights treaties that governments define and ratify.  Many of these have forums almost like mini courts, that are established under the treaty.  For instance, the government of Sri Lanka had to appear before the Committee on the Elimination of Racial Discrimination.   NGOís  have the right to HLP is an officially recognized non governmental organization (NGO) with consultative status at the United Nations.
 
How does the World Court figure into this equation?
 
KP:  The World Court, formally called the International  Court of Justice, is the highest legal body  in the world.  It is the court for the UN system.  Most human rights issues donít end up at the World Court.   One country brings another country to court for contentious opinions or resolutions.  The Nicaragua case  against the US was one of those.   We werenít there because NGOís arenít allowed.  In fact, itís not clear whether or not amicus curiae briefs are even allowed.
 
However, the judges in their deliberations  may use documents from the Commission on Human Rights.   The ICJ  also answers legal questions posed by  various bodies of the U.N.  So in a particular sticky situation, we could perhaps get the Commission on HR to ask the World Court for an advisory opinion.
 
Is the United States an active player when it comes to issues of human rights and humanitarian law?
 
KP:  The U.S. unfortunately  is an active player only in a certain narrow area of law, and  tries to discourage or discard any favorable action in other areas of human rights law.  For instance, the US has a position against the recognition of economic, social and cultural rights.  So if issues  such as the right to housing or social security are raised by NGOís or governments, the US always objects or tries to block action on it.  This is embarrassing to me as an American.  Within the U.N. system there is no question about the reality and viability of those rights.
 
Unfortunately, in the area of humanitarian law, the US still wants to favor its side in an armed conflict and consider the other side terrorists or bad  guys.  For instance, the U.S. fought  for a long time not to have the protection for POWís and other standards of  humanitarian law raised in resolutions on El Salvador.  Itís rather sad when oneís own country, which should be respecting the Geneva Conventions in all circumstances, picks and chooses based on its political efficacy.
 
Many corporations are now international in scope.  Is this a good time to focus on international business in the establishment of standards under which they may be held accountable?
 
KP:  Now is a prime time  because of several factors.  First of all, some of the international forums are beginning to address  corporations involved in the occurrence of human rights violations.  For instance, thereís now an action against the OAS  in response to Ecuador allowing foreign oil companies and its own oil company to develop pristine Indian lands in the Equatorial Amazon area.  In the situation of apartheid, corporations that were directly involved with the apartheid regime were called to question. 
 
The international community is evolving standards on minimum human rights protections applicable to corporations.  So, even a government attempts to shield or shelter  its own corporations, they may no longer succeed.  Itís  extremely important for corporations to understand human rights  and humanitarian law, what it means to do business and how they do business in countries where there are civil wars, international wars, or where there are gross violations of human rights.
 
A big issue right now is Burma, where we have been heavily involved.  Interestingly enough, the Clinton Administration has decided to work with corporations on an Americanized version of international human rights standards.  This just came out recently,  in part due to pressure  from continued violations in China. 
 
Is there any real force behind the United Nations in its judgments with regard to humanitarian law?  And what can we do to put some teeth into the decisions coming out of its various?
 
KP:  Well, I know many Americans are aware of the fact that the U.S. flouted the World Court in the Nicaraguan case, which was decided against the U.S.  In spite of that, the U.S. did eventually have to withdraw its support for the contras.  Tribunals have been established to review war crimes in the former Yugoslavia and in Rwanda.  This is an enormous step forward, and if it wasn't for the ICJ opinion in the Nicaraguan case, the international community may not have been ready for this.
 
At the present time, however, there are also some situations -- Tibet, Kashmir and Burma come to mind, where the resolution of the international community falls short, where  political efficacies  are still overriding the humanitarian law dimension.  This may not be possible for much longer, however, as the tribunals evolve,  and more and more people say well, if thereís a tribunal in Yugoslavia, what do we do in Kashmir, where there are 600,000 Indian troops carrying out a very oppressive war against the Kashmiri people with the same kinds of violations, or what about the fact that the government of China is still forcibly occupying Tibet and has since 1950?  
 
How do we resolve the often conflicting goals of national sovereignty and international law?
 
KP:   Obviously, when anyone  discusses controlling a government insofar as how it treats its people and what it can do in war, you are getting governments at their most sensitive place.  No government wants to be constrained in war or in peace, and the body of law that we focus on provides constraints.
 
The first weapon that we have on our side is information and knowledge. This involves collecting the facts on the ground, so to speak.  But the other part of the equation, and sometimes the more critical one, is the applicable law.  If American citizens don't know about humanitarian law,  or do not understand the principles of self-determination, how can we possibly lobby our government to do the right thing, instead of the wrong thing?
 
In so many of these situations, we have the law on our side, and if we had an informed electorate, many of the problems of national sovereignty and international law, or the supposed conflicts in those areas, would be resolved in favor of the rights of the people.
 
What do you say  to people who feel that real progress in this arena is all but impossible to achieve?
 
         
KP:  In fact, there are victories.  Some of them take a tremendously long time, but they do come.  Nelson Mandela is now president of South Africa.  Four years ago, he was branded a terrorist by the United States because the ANC advocated the use of force to overthrow the apartheid regime.  International law allows the use of force to overthrow the apartheid regime.   We have a detente between Palestine and Israel.  We have the U.N. so heavily involved in El Salvador that the U.S. was literally unable to continue its militarization of the conflict.
 
We also now have the U.N. irretrievably involved in Guatemala, and the ability of the US to be involved in that countryís war with a negative influence is  obviously constrained.   This didnít necessarily come about because Americans were successful in lobbying in Congress, however, but because international human rights organizations were successful in keeping the pressure up at the UN level, where the U.S. as a government can be outvoted.
 
How do these global issues affect the ordinary citizen in say, Los Angeles or Omaha?
 
KP:   Citizens, wherever they are, pay taxes.  Our taxes have gone to perpetrate atrocities and gross violations of human rights and the humanitarian law around the world.   Now, as we succeed in unraveling and curtailing that involvement, less tax money is required in those areas.
 
Also, citizens in Los Angeles, for instance, may decide they want to purchase something from abroad, without realizing that theyíre buying something made with slave labor or prison labor, or that may be contraband.  The more we know about, the less risk there is that Americans would have liability for their innocent involvement.  In addition, with ìthe bombî moving from the east-west cold war  into the north-south developing countries issue, it is imperative that citizens in the U.S  understand global issues, the realities of war the U.S. position.  It may not be Russia or the US with the finger on the trigger that blows up the globe
 
How can individuals support respect for humanitarian law?
 
KP:   Individuals should try to stay informed or support an organization like the Humanitarian Law Project, which specializes in this area.  Obviously, the citizens in Pakistan, Burma or Mexico canít come to lobby Washington with the same degree of effect that American citizens can.  And because U.S. is involved in so many issues, it in a sense falls on our shoulders to keep our country in line.  We have a big job.

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