THE RELATIONSHIP BETWEEN SITUATIONS OF EMERGENCY AND LOW-INTENSITY ARMED CONFLICT

Israel Yearbook on Human Rights

Volumn 28, Issue , 1999, Pages 97-106

  Aolain, Fionnuala Ni ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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[No Author keywords available]

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EID: 85023063143     PISSN: 03335925     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789004423121_008     Document Type: Chapter

References (17)

1. See Respect for Human Rights in Armed Conflict: Report oj the Secretary-General, UN GAOR, 24th Sess., Agenda Item 61, at 12 ss.24, UN Doc. An720 (1969).
2. See G.I.A.D. Draper, "The Relationship between the Human Rights Regime and the Law of Armed Conflict", I Israel Yearbook on Human Rights 191 (1971). Draper makes the point that the human rights regime "provided the language of common effort in the revision of the Law of War". lbid., 199.
3. The G. A. Res. of 19 December 1968, calling on the Secretary-General to make a study of existing rules for the protection of human rights during war is one example. See generally J.G. Starke, International Law 554 (11th ed., 1994).
4. Study on the Implications for Human Rights of Recent Developments Concerning Situations Known as States ofSiege or Emergency. UN Commission on Human Rights. 35th Sess., Agenda Item 10. UN Doc. ElCNA/Sub.2/ 15 (1982) ("Questiaux Report").
5. lbid., §§ 30-31.
6. Legally significant forms of international conflict include; unauthorized incursion by soldiers; authorized small-scale incursion or border incident; permitting hosti Ie activity by private persons or persons acting on behalf of a third State; hostile short-term expedition for a limited purpose; full-scale violence between States; occupation of territory of another State with or without combat but through threat or use of force . See R.1. Miller, The Law of War 17 (1975).
7. Recognition of a lack of "fit" has been noted in one other arena of the laws of war. The hostilities of Korea 1950-53. the fighting in Indo-China 1947-54 and the conflict in and around the Suez Canal involving Israel. Egypt and the United Kingdom in 1956 have all been grouped under the title of 'non-war armed conflict'. In respect of the Suez Canal situation, the British Lord Privy Seal stated:
8. Her Majesty's Government do not regard their present action as constituting war... There is no state of war, but there is a state of conflict.
9. See Starke. supra note 3, at 478.
10. The United Kingdom Government informed the Secretary-General of the Council of Europe on 22 August 1984 that the Art. 15 derogation was being withdrawn.
11. Derogation of 23 December 1988. [19981 Y.B. Eur. C OIlV. H.R. 15 (Eur. Cornm'n of H.R.).
12. Report ofthe Commission of International Jurists on the Administration ofJustice in Peru. 30 November 1993. at 4.
13. II See Draper. supra note 2. at 89.
14. International Committee of the Red Cross. Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflict: Report Submitted to the XXlst Conference ofthe Red Cross 99 (Istanbul. 1969).
15. 1:1 Sec generallv A. Garro. The Role of the Argentine Judiciary in Controlling Governmental Action Under a State of Siege. 4 H.R.L.J. 311 (J983) for a gloomy assessment of the functioning of domestic judiciary in a state of crisis.
16. A parallel question . beyond the scope of this work. is whether the usurpation of democratic government itself is an indication that the emergency framework is an inappropri ate measuring stick by which to examine low-intensity conflict . The issue of whether a non-democratic government may he allowed to rely on a derogati on provision has been well surveyed in the literature. It was also cogentl y examined in the Greek case. [1969] Y.B. Eur. COlli'. H.R. 2 (Eur. Cornrn'n of H.R). It is most problematic where the crisis causing reliance on derogation measures has, in fact, heen created hy the usurping executive itself. The emerging body of scholarship promoting the evolution of a right to democratic governance. gives further credence to the notion that the violent overthrow of participatory forms of governance may also he a red light on the movement from normalit y to armed contlict. See T.M. Franck. The Emergin g Right to Democratic Governance, 86 Am 1. lilt'I. L. 46 (1992); See also T. M. Franck. The Power of Legitimacv amongst Nations (1990).
17. Lawless v. Ireland (196 1). I Judgments and Decisions of the European Court of Human Rights, at 56.