Fundamental Guarantees and Fundamental Standards of Humanity

The drafting in 1990 of the Declaration on the Fundamental Standards of Humanity, also known as the Turku Declaration, is the result of this reflection on the grey areas of fundamental guarantees recognized by the conventions on human rights and those of humanitarian law.

Those standards identify the areas in which international guarantees of protection are insufficient in times of internal disturbances. They particularly point out:

• the questioning of the right to life in law enforcement operations and the excessive recourse to police force;
• abuses in matters of administrative detention;
• the disappearance in fact or in law of the judicial guarantees for persons detained or prosecuted for reasons related to internal disturbances or tensions;
• the forced displacement of population as well as the mass expulsions;
• the phenomenon of enforced disappearances; and
• terrorism against civilian populations.

The eighteen articles of the Turku Declaration were submitted to the UN bodies in 1994. They have been discussed but not adopted as such by the Commission on Human Rights (today the Human Rights Council).

They highlight the weakness of the effective protection of individuals in those grey areas and have contributed to the development of international law to cover them. Today, international criminal law covers the use of force by States and non-state armed groups in situations of armed conflict (war crimes), but also the excessive recourse to force against populations in situations that do not necessarily amount to armed conflict (violations of human rights or crimes against humanity).

Those new categories of international criminal law crystallize the content of fundamental guarantees, which were dispersed in international and regional human rights and humanitarian law conventions. This dispersion is an element of fragility because it delays the implementation of these fundamental guarantees and submits them to the prior examination of the law applicable to each situation.

Nonetheless, the recognition of the complementary and simultaneous application of human rights law and humanitarian law enables the fight against creation of legal black holes between the different areas of international law. International and regional courts, which also control the relevance and proportionality of derogations from human rights decided by States, have reaffirmed the obligation to respect the procedures of derogations contained in human rights conventions. ▸ European Court of Human Rights ▸ Human Rights

The movement of unification and harmonization of fundamental guarantees relative to human rights and humanitarian law is still under way, notably through customary law and international jurisprudence. This unification movement is incited by the complexity of the situations of conflict and insecurity, which involve the intervention of the United Nations and States individually in all the domains of law enforcement, rule of law, and actions of combat.

The customary status of Common Article 3 to the Geneva Conventions illustrates the first attempt to unify fundamental guarantees between human rights law and humanitarian law. Its application in situations of internal disturbances and tensions has been unsuccessfully challenged on the basis that its wording stipulates that it is only applicable in non-international armed conflicts.

Indeed, international jurisprudence noticed on this issue that in a period of internal disturbances and tensions, domestic law and conventions relative to human rights impose the respect for identical or superior principles to those of Common Article 3. It would thus be wrong and paradoxical to affirm that the violation of these fundamental guarantees is authorized in times of peace and internal disturbances. The minimal framework set by Common Article 3 cannot be questioned by a literal interpretation, which would be contrary to the spirit of this text. Principles contained in Common Article 3 thus apply at all times (for the jurisprudence see ▸ Fundamental guarantees; Human Rights ).

▸ Human rights ▸ Fundamental guarantees ▸ Situations and persons not expressly covered by humanitarian law

In order to limit controversies relative to the qualification of a situation of internal disturbances or non-international armed conflict, the Commentaries of the Geneva Conventions have set up the following criteria, which help to distinguish between each situation

Internal Disturbances

Internal disturbances are situations in which there is serious or lasting internal confrontation.

In such situations, which do not necessarily escalate into open struggle, the authorities may use large police forces and even the armed forces to restore order within the country. They may also adopt exceptional legislative measures that give more authority to police and armed forces.

Internal disturbances differ from situations characterized as internal armed conflict because no dissident armed forces or other organized armed groups have formed to carry out sustained and concerted operations (APII Art. 1.1), though dissident groups may exist that are organized and visible. Humanitarian law is therefore not applicable, except for the principles established in Common Article 3 to the Geneva Conventions.

The protection of human rights may suffer derogations due to exceptional legislative measures. However, certain fundamental rights and freedoms may not be derogated from under any circumstances.

Internal Tensions

“Internal tensions” are considered less serious than internal disturbances. Such situations are mostly characterized by high levels of tension (e.g., political, religious, racial, ethnic, social, economic). Such situations often precede or follow periods of conflict.

In times of internal tension, any force employed by the authorities must be of a preventive nature only. Such times may be characterized by

• a large number of arrests,
• a large number of political prisoners,
• probable ill treatment of detained persons,
• allegations concerning disappearances, and
• the declaration of a state of emergency.

In such situations, unlike in internal disturbances, the opposition to the regime is rarely organized in a visible manner.

There are certain human rights from which no derogation is allowed, no matter what the internal condition of the State may be and what exceptional measures the government may have implemented. Even though the level of violence is not intense enough to trigger the implementation of humanitarian law applicable to non-international armed conflicts (APII Art. 1.2)—except for Common Article 3—these inalienable rights must be protected.

▸ Fundamental guarantees ▸ Human rights ▸ Insurgents ▸ Non-international armed conflicts ▸ Parties to the conflict ▸ Proportionality ▸ Resistance movements ▸ Responsibility ▸ Situations and persons not expressly covered by humanitarian law ▸ State of emergency/State of siege