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From Henry Dunant to Present-day International Humanitarian Law (IHL)
From the First Geneva Convention that focused on wounded and sick members of armed forces in the field to the protection of civilian persons in times of war as enshrined in the Fourth Convention, the IHL widened its scope to incorporate not only armed forces but also civilians. The framers of the nineteenth-century conventions widely agreed that humans had inviolable rights during armed conflicts. However, in reality, due to the absence of specificity in the inclusion of actionable mechanisms for claiming remedies, the victims are hardly in a position to exercise their well-deserved rights. It shall be quoted as a failure of the IHL instruments if the victims have no legal capacity to enforce their rights before a national or an international tribunal.
This article would go one-step further by critically examining the rights of 'Indirect Victims'. The group that we aim to analyze is often forgotten from the realms of International law, as their rights are hardly justiciable due to the scarcity of legal recognition.
Categorization of Victims under International Law
There are two categories of 'war victims' that need to be distinguished- Direct victims and Indirect victims. 'Direct victims' are the ones who are directly affected by the armed conflict, and their primary rights have been violated. On the other hand, 'Indirect victims' are immediate members or belong to the household of the direct victim who, in the process of assisting a direct victim or preventing such occurrence, has suffered physical or mental harm.
In Dedovic v. Kok et al., the Appeals Court of Amsterdam specifically differentiated between 'Direct victims' and 'Indirect victims'. The Court held that victims who could demonstrate that they have been affected by the violation of the 'humanitarian law of war' could successfully claim reparations against the responsible state. In addition, Principle 8 under Part V of the UN Principles on the Right to a Remedy includes victims as persons who have individually or collectively suffered harm, including physical or mental injury, emotional suffering, and substantial impairment of their fundamental rights.
Legal Recognition of “Indirect Victims”
Paragraph I of Article 27 of the GC IV provides inviolable human rights to individual men and women. It is a blend of rights and liberties of an individual with the interests of the community. This can be observed by a literal reading of the last paragraph that highlights military requirements and certain matters of national interest.
The rights flowing from the first paragraph are-
Respect and Dignity of an Individual - This right must be construed in its widest sense. It includes the right to physical, moral, and intellectual integrity. This includes within its ambit the prohibition of acts that would itself negate the provision. Article 27 of the GC IV can be described as furtherance of Article 46 of the Hague Regulations that highlights the well-deserved right to protection of families and no confiscation of private property during wartime events. This right is available to "Indirect victims"in toto.
Family Honour - Articles 25 and 26 of the GC IV, which are related to 'family correspondence' and 'dispersed families', must be read with Article 27. The provision provides two distinct sets of rights- a) Maintaining an existing set of familial relations, and b) Restoration of relationships, if in case, wartime events lead to separation. Similar obligations are mentioned under Article 46 of the Hague Relations, Article 38 of the Brussels Declaration, Article 49 of the Oxford Laws of War on Land, Article 37 of the Lieber Code, etc.
Ensuring Inviolable Rights for Indirect Victims
Collective Punishment
We have witnessed certain controversial practices such as travel bans on family members of suspected terrorists or punitive house demolitions. Such actions often dramatically affect the material and emotional well-being of family members and/or relatives of militants. Israel’s policy on punitive house demolitions can be referred to in this context along with the paper title “Through No Fault of Their Own”. Such policy not only infringes the right to housing but also breaches one of the rules of fundamental justice.
The Hague Regulations, the 1949 Geneva Convention, and its Additional protocols ratify that no person shall be punished for acts that the individual did not commit. Several state practices have established this rule as a core principle of customary international law. It holds that law forbids the collective punishment of a group for a crime by an individual. This prohibition of collective punishment is wider in scope as it also covers under its ambit 'harassment and sanctions, by administrative action or otherwise'.
Now, for the purpose of this article, authors argue that Article 87 of the GC III, Article 75 of the AP I, and Article 4 of the AP II deliberately prefers using the terms indicating individuality such as individual acts, personal dignity, etc. This usage marks the scope for purposive interpretation that the lawmakers wanted to vest rights in an individual regardless of his status under the Geneva Conventions. Thus, the inclusion of "Indirect victims" under the statute providing them an inviolable "right to protection" against collective punishment is cemented inside the Geneva Conventions, and the Additional protocols themselves.
Contact with the Outside World
Due to COVID-19 restrictions on prison visits, the issue of restricting contacts with the outside world has again been raised and has gained relevance under IHL and human rights law. Depriving one of their liberty in the connection with the armed conflicts and restricting one to communicate with an outside word including receiving a telephone call, family visit, internet access etc. is a possible infringement of detainees’ rights and such rights of the relatives and subsequent effects of disruptions in communication have not received the same level of attention and overlooked by states.
Family Reunification
Restoring family unity is a fundamental aspect of bringing back greater normality to the lives of refugees and others in need of international protection that has also been guaranteed in international as well as regional law. In addition, the degree in which IHL recognizes such rights of family reunification especially in the occupied territories, beyond human rights law, has been contested. IHL establishes special measures to enable the reunification of families that are separated because of conflict and subsequent facilitation of the work of organizations engaged in this task (Geneva Convention IV Article 26, Additional Protocol I Article 74 and Additional Protocol II Article 4.3.b).
Burial of the Dead
In this part, the authors discuss the legal analysis of violation of individual rights by the reason of the emotional harm caused by mishandling the remains of the deceased or mistreatment of the dead body. We have seen litigation challenging restrictions imposed on the release/return of bodies of suspected militants especially in the domestic context of bodies of Israeli soldiers and civilians as a ‘bargaining chip’ in negotiations.
The authors argue that 'Indirect victims' must be vested with the following four rights-
Safeguarding the personal dignity of the deceased;
The deceased should be buried in such a way that their graves can be properly maintained and marked for easy recognition;
The deceased must be buried in individual graves unless force majeure circumstances dictate otherwise, and
The relatives of the deceased must be provided untethered access to the burial place.
The four Geneva Conventions and the Additional Protocol I provide specificities regarding dealing with graves and remains in armed conflicts. However, we believe that the non-inclusion of 'Victims' and 'Indirect victims' necessarily does not establish a legal vacuum. This can be substantiated by Rule 112 of the ICRC Study on Customary IHL. It specifically provides that each party involved in the conflict must take all measures in searching, collecting the remains, and evacuating the dead people. The imperative terminology that cements our argument is the usage of the phrase 'without adverse distinction'. This makes it applicable to both international and non-international conflicts. In addition, Rule 114 of the ICRC Study on Customary International Humanitarian Law read with Article 130 of the Geneva Convention IV, vests the relatives' right to get informed of their next of kin and transfer the remains.
On Right of Family Members to be Compensated
IHL does not explicitly provide for the right of family members of victims to be compensated, though we can find mention of a general duty to compensate for violations under Article 3 of the Hague Convention (IV). In Spite of the recognition of the right of victims for a remedy, there is limited scholarly work and state practice to implement it.
Further, who qualifies as a relative for the purposes of compensation or any form or reparation, how compensation is to be calculated, what violations entail compensation and how it would be enforced is still an uncharted territory in the IHL domain. Thus, the paper aimed to evaluate the legal significance of introducing the perspective of family members and other relatives affected by armed conflict in practice or potentially, into the discourse on the interpretation and application of IHL norms.
Conclusion
IHL is slowly shedding away a narrow interpretation of the 'Territoriality principle' for war crimes. The Human Rights Committee has interpreted the principle to apply to all individuals, including 'Indirect victims', who are subject to the jurisdiction of the State. In recent times, the trend has changed and the committee can be seen advocating the principle of 'Extraterritorial protection' keeping in mind the intricate nature of the armed conflicts in contemporary war settings. This proposition was duly supported by the International Court of Justice, which held that the ICCPR is applicable to the acts, which are done by a State outside its own jurisdiction. This marks the prioritization of inclusion over exclusion.
By making IHL a matter to be agreed between sovereigns and absolutely basing it on State practice and consent, blanket protection of all the victims in an armed conflict seems a far cry. It is high time that ‘Indirect Victims’ in an armed conflict setting are provided with appropriate reassurances and a prospective roadmap to exercise their legal rights.
This article has been authored by Dikshi Arora, a 3rd year student at Rajiv Gandhi National University of Law, Punjab and Yug Sinha, a 3rd year student at Symbiosis Law School, Pune.
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