¹ Meron, Theodor, “On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument”, 77 American Journal of International Law (AJIL) 589 (1983)CrossRefGoogle Scholar; Meron, , “Towards a Humanitarian Declaration on Internal Strife”, 78 AJIL 859 (1984)CrossRefGoogle Scholar; Meron, T., Human Rights in Internal Strife: Their International Protection (Hersch Lauterpacht Memorial Lectures, Cambridge, Grotius Publications 1987).Google Scholar

² Discussed in Meron, T., Human Rights in Internal Strife, supra note 1, pp. 61 (note 88), 64–67.Google Scholar

³ Among the rights implicated are the right to life; the prohibition of torture or other cruel, inhuman or degrading treatment or punishment; the right to liberty and security of the person; the right not to be subjected to arbitrary arrest and detention; the right to due process of law; the right of persons deprived of their liberty to be treated with humanity; the right to recognition everywhere as a person before the law and the rights of the family, motherhood and childhood.

⁴ Restatement of the Foreign Relations Law of the United States (Revised) §702 (Tent. Draft No. 6, Vol. I, 1985).

⁵ See Art. 78 of the Fourth Geneva Convention.

⁶ See Art. 77(2)–(3) of Protocol I; Art. 4(3) of Protocol II.

⁷ This is a short statement of the Martens clause, adapted from the last preatnbular paragraph of Protocol II.

⁸ This language is inspired by the language of parallel provisions of the Universal Declaration of Human Rights.

⁹ This language is based on the Draft Declaration of the Fundamental Rights of the Individual in Time of Internal Disturbances or Public Emergency, which was presented in 1971 by the ICRC to the Conference of Government Experts on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts.

¹⁰ This provision reflects the prohibition of discrimination, which is central to the UN Charter, humanitarian instruments and human rights instruments. The language borrows, mutatis mutandis, from Article 75(1) of Protocol I and Article 2(1) of Protocol II. It aims at the observance of the rights and duties stated in the Declaration by all persons in the State where the internal strife is taking place, irrespective of the side to which they may belong.

In a low-intensity conflict, the traditional distinctions between combatants and civilians, participants and innocent bystanders, persons affected or not affected by the situation of internal strife, etc., may not always be meaningful. Moreover, such distinctions may be abused so as to circumvent the objectives of the Declaration. As a matter of general policy, the Declaration should therefore be made applicable to the entire population. However, certain protections (e.g., derogable due process guarantees) may have to be limited to particular categories of beneficiaries such as persons prosecuted for offences related to the internal strife, because States may be reluctant to go further. See infra Articles. 9–10.

¹¹ This Article reflects essential protections of humane treatment stated in Article 4 of Protocol II. These protections also echo certain provisions of common Article 3 and of the Fourth Geneva Convention.

¹² This provision draws on Article 4(2)(a) and (e) of Protocol II.

¹³ This provision follows paragraph 6 of the 1971 ICRC Draft Declaration, supra note 9.

¹⁴ This provision follows paragraph 6 of the 1971 ICRC Draft Declaration, supra note 9.

¹⁵ The reference to the prohibition of causing disappearances combines the language of the Draft Restatement of the Foreign Relations Law of the United States (supra note 4) with that of Resolution 1984/13 adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities.

¹⁶ This provision reflects several important principles: prohibition of the use of force unless such use is strictly required; proportionality between the objective to be attained and the degree of force used; the concept that use of firearms constitutes an extreme measure and that their use is not to be allowed in certain egregious circumstances.

This Article does not address the use of force by elements of the opposition (situations of internal strife are governed by national law, subject to any international obligations of the State concerned. National laws do not authorize use of force by elements of the opposition), a subject which is covered by other Articles of the Declaration, such as Articles 3 and 5.

¹⁷ The first sentence of this draft Article originates in Article 3 of the Code of Conduct for Law Enforcement Officials, adopted by the UN General Assembly on 17 December 1979 in Resolution 34/169, combined with the language of Article 8 of the International Law Commission's Draft Articles on State Responsibility (part one). 2 Y. B. Int'l L. Comm'n 73 (Pt. 2, 1976).

¹⁸ The second sentence is borrowed, with modifications, from the Commentary on Article 3 of the Code of Conduct for Law Enforcement Officials, supra note 17.

¹⁹ This sentence builds on the language of Article 23(e) of The Hague Regulations Annexed to Hague Convention No. IV Concerning Laws and Customs of War on Land, which reflects a principle of customary law.

²⁰ This sentence is inspired, in its reference to children, by paragraph (c) of the Commentary to Article 3 of the Code of Conduct for Law Enforcement Officials, supra note 17.

²¹ Although the prohibitions stated in this draft Article overlap, to a certain extent, other provisions of the draft Declaration, events in various parts of the world, such as the activity of so-called “death squads”, acts and threats of violence against indigenous or political groups, make this draft Article necessary. The draft borrows from Article 13(2) of Protocol II and employs the “purpose or effect” language of Article 1(1) of the International Con vention on the Elimination of All Forms of Racial Discrimination.

²² Recent experience shows the necessity of including in the Declaration the prohibition of deportations and massive displacement of the population. This vital principle is well-established in humanitarian law, but rather less in the human rights instruments. The formulation of the above provision is therefore based on language to be found in humanitarian instruments. The provision employs the language of Article 17 of Protocol II, with certain changes, and adapts it to the circumstances of internal strife. It is thus provided that not only the conditions under which the civilians are received must correspond to certain standards, but that such standards should apply also to the conditions prevailing during the transfer of the civilians. The last sentence of paragraph 1 is based, with some changes, on the last sentence of the second paragraph of Article 49 of the Fourth Geneva Convention.

²³ This paragraph emphasizes that the protections stated in paragraphs 2–3 are additional to those stated in Article 6 of the Political Covenant, which are declaratory of jus cogens norms and must, of course, always be observed.

²⁴ This paragraph is based on Article 6(4) of Protocol II (see also Art. 76(3) of Protocol I). This is a vital addition to the protections stated in Article 6 of the Political Covenant given the fact that the execution of a mother shortly after she gives birth endangers the life of the infant and its mental and physical well-being.

²⁵ This provision is based on Article 75 of the Fourth Geneva Convention and Article 101 of the Third Geneva Convention.

²⁶ The first part of the first sentence is based on the non-derogable Article 19 of the American Convention on Human Rights, with the deletion of the last words of that Article. The second part is based on the first part of Article 4(3) of Protocol II.

²⁷ This sentence is based on Article 4(3)(c) of Protocol II, mutatis mutandis.

²⁸ This draft Article is based on Article 5 of Protocol II, with a number of changes.

²⁹ The word “reasonably” has been added to the language of Article 5(2)(c) of Protocol II to limit the discretion of the detaining authorities.

³⁰ This draft Article is based on Article 6 of Protocol II, with changes. It applies only to persons prosecuted and punished for offences related to internal strife.

³¹ This paragraph is based on Article 14(7) of the Political Covenant, which is derogable. See also Article 75(4)(h) of Protocol I.

³² Paragraph 2(g) repeats the language of the non-derogable Article 15 of the Political Covenant, while consolidating its two paragraphs into one and introducing the resultant modifications.

³³ This provision is inspired by Articles 42–43 of the Fourth Geneva Convention, to which the right of appeal has been added.

³⁴ Although the Declaration assumes a conflict of low-intensity violence, provisions on the care of wounded and sick may nevertheless be needed and have, therefore, been incorporated in the draft Declaration. The above provision adapts to the situation of internal strife Article 7 of Protocol II or the similar Article 10 of Protocol I with a number of modifications.

³⁵ This provision reflects Article 8 of Protocol II, with a number of changes.

³⁶ This provision tracks Article 9 of Protocol II.

³⁷ This sentence is based on Article 16(1) of Protocol I.

³⁸ This provision is based on Article 81(1) of Protocol I, with a number of changes designed to adapt them to a situation of internal strife.

³⁹ Such a provision is necessary to encourage governments to respect the Declaration without fear that its application might amount to recognition of, or grant of political status to, dissidents, or opposition groups. The provision is based on the final paragraph of Article 3 common to the four Geneva Conventions and on Article 4 of Protocol I. The reference to “authorities and persons” is substituted for the “parties to the conflict” to reflect the different scope of applicability of the present Declaration, namely a situation of internal strife, rather than armed conflict between contesting parties. Unlike Article 4 of Protocol I, the draft Article mentions only the Declaration, rather than other humanitarian instruments or any special agreements.

⁴⁰ The first part of the draft provision on derogations is based on Article 4(2) of the Political Covenant, to which the words “on any ground whatsoever…” have been added. The addition is based, with modifications, on the language of Principle 6 of 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 of Punishment, which was adopted by the UN General Assembly on December 18,1982 by Resolution 37/194, and on Article 4(1) of the Political Covenant. The second sentence is based on the final words of Article 27(2) of the American Convention on Human Rights. The addition of the second sentence is intended to eliminate the weakness in the Political Covenant which allows derogation from some due process rights essential for the safeguarding of non-derogable rights.

⁴¹ Paragraph 1 is based, mutatis mutandis, on the language of Article 46 of the Political Covenant (Art. 24 of the Economic Covenant).

⁴² This paragraph is based, with modification, on Article 5(2) of the Political Covenant and the Covenant on Economic, Social and Cultural Rights, to which the reference to the principles of humanity has been added because of its special relevance. The word “treaties” replaces the word “conventions”, to avoid ambiguity and clearly cover both the Geneva Conventions and the 1977 Protocols.