1 Hay, , The ICRC and International Humanitarian Issues, Int’l Rev. Red Cross, No. 238, Jan.-Feb. 1984, at 3, 9.CrossRefGoogle Scholar See also International Committee of The Red Cross, Annual Report 1983, at 83 (1984). Such a declaration could be adopted by the 25th International Conference of the Red Cross (Geneva, 1986).

2 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Geneva Convention relative to the Treatment of Prisoners of War (Geneva Convention No. Ill), Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135; Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

3 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, reprinted in 16 ILM 1442 (1977).

4 Regarding the need for and the concept of such an instrument, see Meron, , On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AJIL 589 (1983)Google Scholar. Regarding the value of declarations, see id. at 606 n.80.

5 Statutes of the International Red Cross, Art. VI(5), International Committee of the Red Cross, League of Red Cross Societies, International Red Cross Handbook 407 (1983). Statutes of the International Red Cross are adopted by international conferences of the Red Cross, in which each state party to Geneva Convention No. I, each national Red Cross Society, the ICRC, and the League of the Red Cross Societies have the right to one vote, Rules of Procedure of the International Conference of the Red Cross, Arts. 1, 17, id. at 414.

6 Statutes of the International Committee of the Red Cross, Art. 4(1 )(d), id. at 421.

7 Meron, supra note 4, at 606.

8 For such earlier efforts, see Moreillon, J., Le Comité International De La Croixrouge et la Protection Des Détenus Politiques 243–55 (1973)Google Scholar. The ICRC proposed a text of a short Declaration of Fundamental Rights of the Individual in Time of Internal Disturbances or Public Emergency to the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Conf. Doc. CE/5b, at 85 (1971). See also Veuthey, M., Guerilla et Droit Humanitaire 373–78 (1983)Google Scholar; Meron, supra note 4, at 603 n.75. See generally Bond, J., The Rules of Riot: Internal Conflict and the Law of War (1974)Google Scholar.

9 Meron, supra note 4, at 604–05. Disputes on characterization of conflicts have plagued the implementation of humanitarian law. The applicability of certain norms depends on such a characterization. Id. at 603. It is of interest, therefore, that in its draft of Rules Applicable in Guerrilla Warfare, which the ICRC submitted in 1971 to the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, it was stated that the “standard minimum rules . . . would be applicable in all conflicts not corresponding entirely to the conventional definition envisaged in Articles 2 and 3 of the Geneva Conventions and . . . would in no way influence the designation of the conflict.” Conf. Doc. CE/6b, at 50 (1971).

10 The original French text of President Hay’s statement used the word “non–derogeables,” which should have been translated into “nonderogable,” rather than “inalienable.”

11 Hay, supra note 1.

12 Id.

13 For a recent example of a declaration containing an explicit prohibition of derogations, see Principle 6 of the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 37/194, 37 UN GAOR Supp. (No. 51) at 211, UN Doc. A/37/51 (1982).

14 The draft declaration proposed by the ICRC in 1971 was to apply to “public emergency or internal disturbances [which] prove to be serious or protracted and involves acts of violence.” ICRC, Declaration of Fundamental Rights, supra note 8, at 86; J. Moreillon, supra note 8, at 183–84.

15 Common Article 3 does not define what constitutes an “armed conflict not of an international character.” However, the authoritative ICRC commentary suggests a high threshold of violence, “a genuine armed conflict.” Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 50 (J. Pictet ed. 1952). The conflict would be one that in many respects is similar to an international war, but that takes place within the confines of a single country. Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 36 (O. Uhler & H. Coursier eds. 1958).

16 It is of interest to compare a formula similar to that found in Article 1(2) of Protocol II, but in the positive sense, to that proposed by the ICRC in 1971, note 14 supra.

17 Regarding the field of applicability of Protocol II, see Meron, supra note 4, at 599–600.

18 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, reprinted in 16 ILM 1391 (1977).

19 See generally Meron, supra note 4, at 595–97; Protocol I, pt. IV, sec. I; Protocol II, pt. IV.

20 Geneva Convention No. IV, Art. 4.

21 Protocol I, Art. 11(1).

22 Id., pt. Ill, sec. II.

23 Id., Art. 75(1). For a comparison of the personal scope of protection provided by this article with that provided by Article 4 of Geneva Convention No. IV, see Bothe, M., Partsch, K. & Solf, W., New Rules for Victims of Armed Conflicts 457–60 (1982)Google Scholar.

24 Protocol II, Art. 2(1).

25 Id., Art. 4(1).

26 Id., Art. 2(2).

27 See section IV infra.

28 Meron, supra note 4, at 601–02.

29 It may be recalled that the draft declaration proposed by the ICRC in 1971 was also to be applied “without any discrimination.” ICRC, Declaration of Fundamental Rights, supra note 8, at 86.

30 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966).

31 GA Res. 217A, UN Doc. A/810, at 71 (1948).

32 E.g., Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, and approved by the Economic and Social Council by its Resolutions 663C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977.

33 213 UNTS 221.

34 For the official text, see Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System 29, OEA/Ser.L/ V/II.60, doc. 28, rev.1 (1983).

35 To illustrate: the prohibition of imprisonment merely on the ground of inability to fulfill a contractual obligation, stated in Article 11 of the Political Covenant, is not of particular relevance in times of emergency.

36 See, e.g., American Convention, Arts. 23, 27.

37 Article 4(2) of the Political Covenant mentions the right to life (Art. 6) among the nonderogable provisions, but not due process guarantees (Art. 14). As the right to life under Article 6 is not absolute, the effect of this omission is, arguably, that in time of emergency, death sentences can be imposed following summary procedures, provided that the more limited guarantees stated in Article 6 are observed. A different interpretation, however, based on the prohibition of arbitrary deprivation of life, is possible. S. Wako, Report on Summary or Arbitrary Executions, UN Doc. E/CN.4/1983/16, at 13–14. Regarding Article 4(2) of the Political Covenant, see Lillich, , Civil Rights, in 1 Human Rights in International Law: Legal and Policy Issues 115, 121–22 (Meron, T. ed. 1984)Google Scholar; Dinstein, , The Right to Life, Physical Integrity, and Liberty, in The International Bill of Rights: The Covenant on Civil and Political Rights 114, 116 (Henkin, L. ed. 1981)Google Scholar. See also Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion No. OC–3/83 (Inter–Am. Ct. Human Rights, Sept. 8, 1983).

Regarding Protocol No. 6 to the European Convention, see Meron, supra note 4, at 605 n.79. It may be noted that the UN General Assembly requested that the Commission on Human Rights consider elaborating a draft of a second optional protocol to the Political Covenant, aiming at the abolition of the death penalty. GA Res. 37/192, 37 UN GAOR Supp. (No. 51) at 209, UN Doc. A/37/51 (1982). The Commission on Human Rights recently referred the matter to the Sub–Commission on Prevention of Discrimination and Protection of Minorities. Res. 1984/19, UN Doc. E/1984/14, E/CN.4/1984/77, at 53.

A better formulation than in the Political Covenant is contained in Article 27(2) of the American Convention which prohibits suspension of judicial guarantees essential to the protection of nonderogable rights and in common Article 3(1 )(d) of the Geneva Conventions which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” ,

38 The Political Covenant does not contain a clear and nonderogable prohibition of deportations, even on a massive scale. Experience indicates the necessity that such a provision be included in the declaration. The essential principle of prohibition of deportations is well established in humanitarian instruments (Geneva Convention No. IV, Art. 49; Protocol II, Art. 17) which would provide the source for the declaration.

39 See Meron, supra note 4, at 598, 605–06; Dinstein, Human Rights in Armed Conflict: International Humanitarian Law, in 2 Human Rights in International Law, supra note 37, at 345, 350–54.

40 Articles 5–6 of Protocol II are particularly suitable as sources. See also note 37 supra. Neil MacDermot has observed that studies conducted by the International Commission of Jurists “had shown that although, pursuant to article 4 . . . [of the Political Covenant], there could be no derogation of certain rights, all the procedural and other safeguards which would reduce the risk of violations of those rights could themselves be derogated and in practice were usually suspended.” UN Doc. E/CN.4/1984/SR.20, at 4–5 (Feb. 20). See generally International Commission of Jurists: States of Emergency: Their Impact on Human Rights (1984); Meron, supra note 4, at 600–02; Sub-Comm’n on Prevention of Discrimination and Protection of Minorities Res. 1983/30, UN Doc. E/CN.4/1984/3, E/CN.4/Sub.2/1983/43, at 96.

41 See note 38 supra.

42 See generally Code of Conduct for Law Enforcement Officials, GA Res. 34/169, 34 UN GAOR Supp. (No. 46) at 185, UN Doc. A/34/46 (1979); European Convention, Art. 2. The Political Covenant does not contain a provision similar to Article 2 of the European Convention. But in the context of the right to life (Political Covenant, Art. 6), the UN Human Rights Committee has raised questions concerning the rules governing the use of arms by security forces in disturbances and, particularly, in political riots. Report of the Human Rights Committee, 33 UN GAOR Supp. (No. 40) at 49, UN Doc. A/33/40 (1978).

43 For a recent formulation of the principle of proportionality, see Protocol I, Arts. 51(5)(b), 57(2)(a)(iii).

44 Cf. Protocol I, Art. 36.

45 For a useful discussion of “Hague law” and “Geneva law,” see Aldrich, , New Life for the Laws of War, 75 AJIL 764 (1981)CrossRefGoogle Scholar. The Sub-Commission on Prevention of Discrimination and Protection of Minorities recently expressed its concern at “the numerous occurrences in many countries of excessive and/or completely unwarranted use of force by law enforcement officials and military personnel during public gatherings, resulting in civilian loss of life or injury.” Res. 1983/24, UN Doc. E/CN.4/1984/3, E/CN.4/Sub.2/1983/43, at 91. The Sub-Commission asked the Commission on Human Rights to invite the Committee on Crime Prevention and Control to consider this question. Id. See also Report on Restraints in the Use of Force prepared by the Secretary-General in accordance with Sub-Commission Resolution 1983/24, UN Doc. E/CN.4/Sub.2/1984/14.

46 Restatement of the Foreign Relations Law of the United States (Revised) §702 (Tentative Draft No. 3, 1982).

47 See generally Reports of the Working Group on Enforced and Involuntary Disappearances, UN Docs. E/CN.4/1435 and Add.1 (1981); E/CN.4/1492 and Add.1 (1981); E/CN.4/1983/ 14 (1983); E/CN.4/1984/21 (1984); Egeland, J., Humanitarian Initiative Against Political “Disappearances” (Henry Dunant Institute, 1982)Google Scholar; Berman, & Clark, , State Terrorism: Disappearances, 13 Rutgers LJ. 531 (1982)Google Scholar.

The Sub-Commission on Prevention of Discrimination and Protection of Minorities instructed its Working Group on Detention to prepare a first draft of a “Declaration Against Unacknowledged Detention of Persons, Whatever Their Condition,” Res. 1983/23, UN Doc. E/CN.4/1984/3, E/CN.4/Sub.2/1983/43, at 90, 91.

48 Aiding War Wounded—A Legal Right, ICRC Bull., No. 99, Apr. 1984, at 4.

49 See Meron, supra note 4, at 604.

50 Thus, Article 6(5) of the Political Covenant prohibits the carrying out of a sentence of death on a pregnant woman, but it appears that pregnancy only postpones the implementation of the death penalty until after the woman has given birth. More liberal provisions are contained in humanitarian instruments. Article 76(3) of Protocol I prohibits the execution of the death penalty on pregnant women or mothers of dependent infants, for an offense related to the armed conflict. Article 6(4) of Protocol II prohibits the carrying out of a death sentence on pregnant women or mothers of young children.

51 See generally Meron, , Norm Making and Supervision in International Human Rights: Reflections on Institutional Order, 76 AJIL 754 (1982)CrossRefGoogle Scholar.

52 N. Valticos, International Labour Law 73 (1979).

53 Cf. Political Covenant, Art. 46; International Covenant on Economic, Social and Cultural Rights (Economic Covenant), Art. 24, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966).

54 Cf. Political Covenant, Art. 5(2); Economic Covenant, Art. 5(2).