Although it is now almost universally accepted that international human rights law applies in times of armed conflict,Footnote 1 the majority of authors writing on the subject contend that it applies even though it was never intended to apply in conflict situations and despite the strict institutional divide that used to exist between the International Committee of the Red Cross (ICRC) and the United Nations (UN).Footnote 2 To most authors, the adoption of Resolution XXIII, entitled ‘Respect for Human Rights in Times of Armed Conflict’, at the Tehran human rights conference in 1968 was the first instance in which any conceptual overlap between international human rights law and international humanitarian law was noted and one of the first times that the mandates of the UN and the ICRC came into contact with each other. The purpose of this article is to present research challenging these assumptions. As with all stories that are often told, many of the points in the narrative surrounding the relationship between international human rights law and international humanitarian law and the relationship between the UN and the ICRC have become accepted wisdom; they are often repeated and less often questioned. And while this is mainly unproblematic because most of the narrative is accurate, this article presents evidence that suggests that between the drafting of the Universal Declaration of Human Rights (UDHR)Footnote 3 in 1948 and the Tehran human rights conference in 1968,Footnote 4 international humanitarian law and international human rights law and their respective guardian institutions were not so conceptually far apart as is sometimes suggested. This evidence is important because as long as we repeatedly read and are told that human rights law was never intended to apply during armed conflict, its ability to assist in this context may be unduly limited. It is hoped that this exercise will show that the ICRC and the UN have a much longer history of working together on issues relating to armed conflict than is often appreciated. It is also hoped that the exercise may contribute to revising the way in which the historical relationship between the two bodies of law is perceived and thereby make the application of human rights law to armed conflict more valuable.
The relationship between international human rights law and international humanitarian law and the UN and ICRC between 1948 and 1968: the dominant narrative
The majority of articles addressing the relationship between international humanitarian law and international human rights law tell the story of the relationship between the two bodies of law and their two guardian institutions the same way.Footnote 5 The story starts with a description of how at the time that the UDHR and 1949 Geneva ConventionsFootnote 6 were drafted, human rights law and international humanitarian law were conceived of as being completely different bodies of law with different histories and with few overlapping areas of application.Footnote 7 International humanitarian law is one of the oldest branches of public international law and historically was based on honour, military necessity, and chivalry.Footnote 8 The ‘humanitarian’ aspect was infused into the law of war relatively late in its long history, with the Geneva Convention of 1864 relating to the sick and wounded in the field and the Martens clause in the preamble to the Fourth Hague Convention in 1907.Footnote 9 Human rights law, in comparison, is a much more recent branch of public international law.Footnote 10 While it is possible to trace the principles on which human rights law is based – equality, dignity, liberty, and solidarity – to ancient philosophy and writings,Footnote 11 no international law document containing human rights commitments between states existed before the UDHR. None of the earlier declarations and statutes proclaiming or safeguarding rights were international in scope.Footnote 12 On the basis of these separate historical backgrounds, most authors argue that in 1948 and 1949, when the UDHR and the Geneva Conventions were drafted, there was no conceptual overlap between the two bodies of law in the minds of the drafters.Footnote 13 We are told that the UDHR ‘completely bypasses the question of respect for human rights in armed conflicts’Footnote 14 and that ‘human rights were scarcely mentioned’ during the drafting of the Geneva Conventions.Footnote 15 There seems to be a widespread view that at the time of the UDHR's drafting, human rights law was assumed not to apply during times of conflict; the two bodies of law were considered to be alternate regimes that would not apply at the same time.Footnote 16 Human rights law was the law of peace; international humanitarian law was the law of war.Footnote 17
Fitting with this narrative is the fact that bodies of law had different institutional guardians.Footnote 18 This is widely thought to have had the effect of cementing the differences between the two legal regimes. Human rights law was developed under the auspices of the UN and emerged out of World War II. Securing a commitment from states to human rights law was considered key to preventing a repetition of the atrocities against civilians that took place during the war. It was central to the hope that the countries of the world, emerging traumatised from total war, would never allow such atrocities to occur again. Against the background of newfound peace and optimism, there was reluctance for the UN to be involved in the redrafting of the laws of war. It was thought that to do so might betray a less than complete commitment to peace on the part of the organisation.Footnote 19 There was a strong feeling that the new organisation should focus on the law of peace, the law on the use of force found in the UN Charter, and human rights law. This led to an institutional divide: international human rights law fell under the auspices of the UN, and international humanitarian law under the auspices of the ICRC. It is often emphasised by academic commentators that the laws of war ended up being entrusted to the guardianship of the ICRC not only because the UN did not wish to be involved in their codification, but also because the ICRC was fearful that the UN's involvement in the codification of such laws might compromise the distinction between jus in bello and jus ad bellum that is fundamental to the ICRC as an institution.Footnote 20 A picture emerges from the literature of the two institutions maintaining a ‘cautious distance’ from each other and each other's mandates.Footnote 21 Many authors point to this institutional divide as further evidence of the fact that in the years immediately after the UDHR and the Geneva Conventions were drafted, there was no connection between international human rights law and international humanitarian law.Footnote 22
From this starting point, the story is then told of the gradual coming together of the two bodies of law and the first signs of appreciation that there might be an overlap between the mandates of the ICRC and the UN. For most authors, the relationship between international human rights law and international humanitarian law began in 1968: the year of the human rights conference in Tehran.Footnote 23 A minority of authors point to earlier indications of a convergence between the two bodies of law in the 1950sFootnote 24 and 1960s.Footnote 25 It has been noted in this respect that while a derogation clause did not feature in the UDHR, one can be found in both the European Convention on Human Rights (ECHR) of 1950 and the International Covenant on Civil and Political Rights (ICCPR) of 1966. The existence of a derogation clause in these later documents has been taken as an indication that by this point, perceptions of human rights had changed sufficiently for their drafters to extend the application of human rights to times of war.Footnote 26 Likewise, the UN is noted to have slowly started to appreciate the ‘relevance of human rights in armed conflict’ in the 1950s.Footnote 27 Evidence of this is seen in resolutions from the Security Council and the General Assembly of the UN requesting parties to conflicts to respect human rights.Footnote 28 The convergence between the two bodies of law in these years is seen as relating to many factors. First, it was proving difficult to sustain interest among states parties for further codification of the laws of war. Efforts by the international humanitarian law community to secure the adoption of the Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War – which contained important provisions relating to the conduct of hostilities – had almost come to a standstill at the end of the 1950s.Footnote 29 And, importantly, at the very time that enthusiasm for further codification of international humanitarian law seemed to be waning, the international community seemed to be increasingly cognisant of the fact that human rights law could be relevant in times of war. Concurrent to this, a similar movement was taking place among ordinary people, ‘human rights’ as a concept was starting to captivate the human imagination, television was causing people to feel more connected to problems on the other side of the world, and human rights non-governmental organisations were gaining increasing popular support.Footnote 30
Against this background, the human rights conference in Tehran is almost always recognised as the most significant landmark in the story of the relationship between the two bodies of law.Footnote 31 In 1968, the nations of the world gathered at a conference in Tehran that marked the twentieth anniversary of the UDHR. One of the key resolutions that emerged from this conference – Resolution XXIII – was entitled ‘Respect for Human Rights in Armed Conflicts’.Footnote 32 This resolution is important on the narrative timeline of the relationship between the two bodies of law and the ICRC and UN for two reasons. First, with its title, it confirms a consensus amongst the voting states that human rights continue to exist in times of conflict; second, because it is seen to represent a first step in the gradual lessening of the institutional divide between the two bodies of law that we have seen since. The body of the resolution asks the Secretary-General of the UN to commission a study on international humanitarian law. This was undoubtedly a significant development; it shows the UN explicitly renouncing its seemingly ideologically motivated distance from the codification of the laws of war and taking an interest in their development. It is frequently noted that this request in Tehran – later confirmed by the General Assembly in a resolution – was the first step towards the drafting of the Additional Protocols to the Geneva Conventions in the 1970sFootnote 33 – protocols that, more than any other treaty before them, demonstrated the growing connections between international humanitarian law and international human rights law.Footnote 34
The application of human rights law to armed conflict in the late 1940s and 1950s
While most of this narrative is undoubtedly accurate, some important aspects are less black-and-white than they are portrayed to be and deserve to be questioned. In particular, it is important to challenge the oft-made assumption that at the time the UDHR was drafted in 1948, its drafters thought it would not apply in times of conflict. While it is true that the travaux préparatoires of the UDHR do not reveal its drafters discussing whether or how the declaration might be applied during conflict, it is not clear that this silence should be interpreted to indicate a belief that human rights – as a concept – were deemed by its drafters to be irrelevant in times of armed conflict.Footnote 35 Indeed, if it is assumed for the sake of hypothesis that the drafters assumed that the UDHR would apply during times of conflict, some of the facts cited as evidence of the international community's nascent appreciation that human rights law might apply during conflict – facts that otherwise sit uncomfortably in the temporal narrative – make much more sense. For example, it may seem strange to consider Security Council resolutions from the 1950s as an indication of the international community ‘slowly’ starting to appreciate that human rights continue to apply in times of armed conflict.Footnote 36 Relative to the speed of other changes in international law, these would indicate a fast change of attitude indeed. Similarly, it is ambitious to see the derogation clauses in the ECHR and the ICCPR as indications that states had changed their minds on whether human rights could apply during conflict when it is remembered that the ECHR was finalised only two years after the UDHR was drafted;Footnote 37 this is a blink of an eye in international law terms and an exceptionally short period for perceptions on such a fundamental issue to change, especially in the absence of a clear catalysing event. The timing of these developments makes more sense if it is considered that at the time the UDHR was drafted, its drafters and other key members of the legal community already believed that its provisions would be relevant in times of conflict – in which case, the early examples of the UN calling upon states to respect human rights in times of conflict would be seen not as evidence of a changed perception of the way human rights law was understood, but simply as examples of the international organisation getting to grips with its new human rights mandate and determining its capabilities in this regard.
Support for the argument that the drafters of the UDHR believed it would be relevant in times of conflict is found in the fact that a derogation clause – similar to that in the ECHR and ICCPR – existed in the draft Covenant of Human Rights that was written in parallel to the UDHR in 1947 and 1948.Footnote 38 The existence of this clause, which allowed states to derogate from certain human rights obligations in times of public emergency, is evidence that even in 1947 human rights law was deemed to apply in times of conflict, even though it was recognised that its application might have to be modified in these situations.Footnote 39 Moreover, it is also questionable whether it makes sense from a conceptual point of view to interpret the lack of a derogation clause in the UDHR as a sign that it was not intended to be applied in times of armed conflict. It is noteworthy in this regard that shortly after the UDHR was drafted, the opposite argument was made by Claude Pilloud, the Head of the ICRC's Legal Division, who had regularly attended the drafting sessions of the UDHR in 1947.Footnote 40 Writing in the International Review of the Red Cross in 1949, Pilloud stated:
Let us further add that the Universal Declaration does not provide for derogation clauses in exceptional circumstances such as wars, internal disturbances or other disasters; it must therefore be applied in its entirety at all times and all places. This is an important point, as during the travaux préparatoires, some proposals included such derogation clauses.Footnote 41
In Pilloud's view, the drafters’ decision that the UDHR should not contain a derogation clause indicated their view that it should apply at all times, even in times of armed conflict.
The distinctly natural law character of the UDHR provides further support for this interpretation. According to its preamble, human rights are ‘inalienable’ – they cannot be taken away or transferred. Article 1 of the Declaration states that human beings are ‘born free and equal in dignity and rights’. This wording reflects a conception of human rights law based in natural law and suggests that the UDHR's drafters considered human rights to exist not because they are conferred by a treaty by means of positive law, but because they are innate to the human person. Against the background of this language, it is hard to imagine that the drafters of the UDHR could have imagined that the rights contained therein would only exist in a state of peace.Footnote 42 In particular, it seems unlikely that they would have deemed human rights to become irrelevant at the outbreak of an armed conflict. The drafters of the UDHR would have been acutely aware of the obvious truth that human rights become more, not less, important during wartime, as this is when they are most threatened.Footnote 43 It is no coincidence that the human rights declarations and documents that have existed over the centuries – including the UDHR – have been drafted after a period of conflict or revolution.Footnote 44 The norms that they contain reflect the values and hierarchies of power that have been fought for, and achieved, during the preceding conflict or civil unrest. ‘Rights documents’ not only represent a code of how people want to live thenceforth, but also constitute an undertaking by the government that the inequalities that caused the conflict and the atrocities that took place during the conflict will not be repeated. It does not do justice to this part of human rights law's heritage to adhere to an overly utopian conception of human rights that is based on a harmonious relationship between the governor and the governed. On the contrary, since their earliest conception, human rights documents have been born out of antagonisms between governments and individuals. One of their primary purposes has always been to provide a means by which individuals can assert their rights in the face of the tyranny of government, the most extreme examples of which lead to and are manifested by armed conflict.Footnote 45
Support for a belief that human rights were relevant in times of conflict before 1968 is also seen in the General Assembly resolutions which invoke human rights law in times of conflict, drafted in the 1950s and 1960s. Droege has noted the 1953 General Assembly resolution invoking human rights in the context of the Korean conflictFootnote 46 and the Security Council resolution calling upon the Soviet Union and the authorities of Hungary to respect the Hungarian people's enjoyment of human rights and freedoms.Footnote 47 She also mentions the Security Council resolution reaffirming the importance of human rights in the territories occupied by Israel after the Six-Day War.Footnote 48 Similar resolutions by the General Assembly are found in respect to the forceful denial of the ‘fundamental human rights and freedoms of the people of Tibet’ in 1959Footnote 49 and the ‘critical and explosive situation’ in Aden which ‘constitutes a denial of fundamental rights and endangers peace and security in the region’ in 1963.Footnote 50 In another resolution on the Territory of Aden, the General Assembly requested the administering power to ‘cease forthwith all repressive action against the people of the Territory, in particular military expeditions and the bombing of villages’.Footnote 51 In 1961, the President of the Security Council affirmed that violations of the Security Council's request for a ‘cease-fire’ in the Dominican Republic had taken place and acts of repression against the civilian population and other violations of human rights had been brought to the Council's attention.Footnote 52 In 1961, the Security Council expressed its concern about the ‘systematic violations of human rights and fundamental freedoms and the general absence of the rule of law’ in the Congo at a time when fighting in the country was widespread.Footnote 53 These examples of the UN Security Council and General Assembly invoking human rights law in situations of both near-conflict and outright conflict strongly indicate a belief on the part of the UN's members that human rights law was relevant and could be invoked in times of conflict. They also expose the illogicality of the argument that atrocities perpetrated in a situation nearing conflict might be characterised as human rights violations but that atrocities perpetrated in situations of outright armed conflict should not; a chronological reading of General Assembly and Security Council resolutions offers a vivid historical record of how quickly situations of internal disturbance can deteriorate into situations of non-international armed conflict.
Indeed, the fact that human rights law was conceived as applying in times of armed conflict is likewise confirmed by the fact that in the late 1940s several authoritative commentators perceived crimes against humanity to be analogous to crimes against fundamental human rights. In addressing the question of whether all war crimes could also be crimes against humanity, the digest of case law from the Nuremberg and Tokyo Tribunals published in 1949 states: ‘it does not seem possible that war crimes in which there is no violation of human rights could possibly be regarded as crimes against humanity’.Footnote 54 Its conclusion in this regard is supported by a footnote which further adds that the ‘remark assumes crimes against humanity to be restricted to offences against human rights’.Footnote 55 Hersch Lauterpacht, writing in 1950, similarly noted:
To lay down that crimes against humanity are punishable is, therefore, to assert the existence of rights of man grounded in a law superior to the law of the State. Thus, upon analysis, the enactment of crimes against humanity in an international instrument signifies the acknowledgment of fundamental rights of the individual recognized by international law.Footnote 56
The clear perception in these years that there was a link between crimes against humanity and human rights amounts to evidence of a belief on the part of the authors of the digest and Lauterpacht that human rights law – or at least fundamental human rights – existed and could be violated in times of armed conflict.Footnote 57 This conclusion is particularly valid when it is remembered that then, much more than today, ‘crimes against humanity’ were thought to be inherently linked to armed conflict.Footnote 58
Appreciation of conceptual overlap between international humanitarian law and international human rights law in the late 1940s and early 1950s
Evidence that human rights law was already deemed relevant to armed conflict in the years immediately after 1948 prompts us to question whether there was really such a pronounced conceptual divide between human rights law and humanitarian law between 1948 and 1968. Although the travaux préparatoires to the UDHR do not reveal any discussion of international humanitarian law on the part of the drafters, it is noteworthy that the ICRC sent one or sometimes two senior representatives to many of the drafting sessions of the UDHR and the Covenant of Human Rights in GenevaFootnote 59 and New York.Footnote 60 In December 1947, when the sessions were in Geneva, the sessions were regularly attended by the ICRC's Secretary-General, Jean Duchosal, and/or the Head of the ICRC's Legal Division, Claude Pilloud.Footnote 61 This constitutes evidence that from the beginning of the human rights movement, the ICRC had a certain appreciation of the connection between human rights law and the law of armed conflict. It also suggests a belief on the part of the ICRC that the rights contained in the UDHR would continue to apply in times of armed conflict. Further evidence of the ICRC's position in this regard is seen in the preamble to the draft Convention for the Protection of Civilian Persons in Times of War approved in Stockholm by the 17th International Red Cross Conference in August 1948. This begins with a suggested undertaking by the High Contracting Parties ‘to respect the principles of human rights which constitute the safeguard of civilisation, and, in particular, to apply, at any time and in all places, the rules given hereunder’.Footnote 62 While this statement does not provide a full elucidation of the ICRC's understanding of the relationship between international humanitarian law and international human rights law, it certainly provides an indication that the ICRC thought that human rights law should be respected in times of armed conflict.
The travaux préparatoires to the Geneva Conventions also demonstrate that the states’ delegates present at the drafting conferences believed that there was a connection between international human rights law and international humanitarian law.Footnote 63 The perceived relationship between the bodies of law is seen most clearly in the words of the president of the Conference during the official ceremony for the signature of the conventions. Speaking on 8 December 1949, he noted that it was very nearly the anniversary of the UDHR and stated that it was interesting to compare the UDHR and the Geneva Conventions. He said that the Geneva Conventions were
based on certain of the fundamental rights proclaimed in it [the UDHR] – respect for the human person, protection against torture and against cruel, inhuman or degrading punishments or treatment … The Universal Declaration of Human Rights and the Geneva Conventions are both derived from one and the same ideal.Footnote 64
During the drafting process, the relationship between the two bodies of law was particularly discussed with regard to the provisions in Geneva Convention IV and Common Article 3 which give protection to civilians and persons hors de combat. The comments on these provisions indicate an understanding among delegates that in times of armed conflict the Geneva Conventions would apply alongside the protections in the UDHR, which had been agreed by states the year before. For example, Colonel Hodgson, the Australian delegate (who had notably also been part of the drafting committee of the UDHR), took the view that there was no need for the Third or Fourth Geneva Conventions to have preambles referring to human rights law because the principle of human rights ‘had already been very much better said in the Preamble of the Declaration on Human Rights recently adopted by the General Assembly of the United Nations’.Footnote 65 According to Hodgson, it was not the task of the Conference to ‘re-write’ the 1948 Declaration.Footnote 66 Similarly, the Danish delegation expressed the view that a person who did not benefit from the Third Geneva Convention Relative to the Treatment of Prisoners of War would remain ‘safeguarded by the principles of the rights of man as derived from the rules established among civilized nations’.Footnote 67 These statements by Colonel Hodgson and the Danish delegation evidence a belief not only that international human rights law would continue to apply during armed conflict, but also that it might be able to complement international humanitarian law by filling gaps in protection. This being said, it is clear that the delegates who saw the two bodies of law to be related did not necessarily agree on the precise nature of that relationship. While the comments from the Australian and Danish delegations suggested a belief that the UDHR would exist alongside the Geneva Conventions,Footnote 68 it seems that other delegations saw the Geneva Conventions’ provisions as amounting to a special regime of human rights for times of conflict.Footnote 69
The fact that there was an appreciation of the conceptual overlap between international human rights law and international humanitarian law before 1968 is also seen in academic literature from the 1950s and 1960s. This is rarely noted in contemporary literature commenting on the relationship between international humanitarian law and international human rights law. Instead, it is often assumed that early academic literature on the topic supports the contention that in the years between 1948 and 1968, the two bodies of law and their respective institutions were completely separate. Reviewing literature relating to the law of war at the time the Geneva Conventions and UDHR were drafted, Kolb finds that it ‘sometimes made reference to human rights law … [but] never failed to stress the continuing cleavage between the two branches’.Footnote 70 Yet while a great deal of the literature of the 1970s did indeed stress the differences between the bodies of law, in literature prior to the late 1960s the situation is remarkably different. Indeed, statements by academics Kunz and Cowles, speaking and writing in the United States in these early years, make clear that there was a belief that international humanitarian law could be conceived as a ‘part’ of human rights law ‘adapted to the wartime scene’.Footnote 71 Hersch Lauterpacht, who had been involved in the drafting of both the Geneva ConventionsFootnote 72 and the UDHR,Footnote 73 also saw the two regimes to be closely related. In 1952, he wrote that the Fourth Geneva Convention:
might be said [to be] …, in its limited sphere, … a veritable universal declaration of human rights; unlike the Declaration adopted by the General Assembly in December 1948, it is an instrument laying down legal rights and obligations as distinguished from a mere pronouncement of moral principles and ideal standards of conduct.Footnote 74
The fact that Lauterpacht understood there to be a conceptual overlap between humanitarian law and human rights law is also made clear in his statement that:
most rules of warfare are, in a sense, of a humanitarian character inasmuch as their object is to safeguard, within the limits of the stern exigencies of war, human life and some other fundamental human rights and to make a measure of intercourse between enemies during the war and some voluntary relationship after it.Footnote 75
Against the backdrop of the statements by Kunz and Cowles above, Lauterpacht's view on the relationship between human rights law and international humanitarian law seems to have been neither radical nor exceptional.Footnote 76
The fact that there was an appreciation in academic circles of the conceptual overlap between international human rights law and international humanitarian law is also confirmed by the article by Claude Pilloud which was published in 1949 and which has already been cited above.Footnote 77 The stated purpose of the article was to review the relationship between the UDHR and the 1949 Geneva Conventions. During the course of this review, Pilloud not only made it clear that he understood the UDHR to apply in times of armed conflict, but having reviewed the correlation of norms in the Geneva Conventions and the UDHR, he further concluded:
we would like to emphasize that their co-existence does not present a setback. On the contrary, this will result in a strengthening of the humanitarian Conventions since many of their principles are valid at all times and places.Footnote 78
Pilloud's words in this respect provide further evidence that there was not such a strict cleavage between the two bodies of law in the years after the drafting of the Geneva Conventions and UDHR as has sometimes been suggested. In fact, together, these academic writings provide strong indications that in the late 1940s and early 1950s, there was a common view that the two bodies of law were conceptually connected and complementary in their scope.
Overlapping spheres of operational competence of the UN and the ICRC in the late 1940s and 1950s
In light of this revised picture, it is perhaps not surprising to discover that the institutional divide between the UN and the ICRC was also not as absolute as is often suggested. Many accounts of the relationship between international human rights law and international humanitarian law suggest that between the years 1948 and 1968, the two institutions had no overlap in mandate or areas of common interest. Indeed, the ICRC and UN are often depicted as having maintained a distance from each other during these years even though they had a degree of normative similarity.Footnote 79 In fact, this seems to overstate the situation, for there were numerous occasions during these years on which the two organisations worked in cooperation in areas of the mutual competence.Footnote 80 For example, in November 1948, the Secretary-General requested the ICRC and the League of Red Cross and Red Crescent Societies to assist in implementing a General Assembly resolution calling for the facilitation of the return to Greece of Greek children.Footnote 81 In November 1949, the General Assembly expressed its ‘warm appreciation’ for the efforts made by the two international Red Cross organisations in this regard.Footnote 82 There is also evidence that the ICRC took an active role in the development of human rights law that was relevant to its mandate. It sent high-level delegates not only to the drafting sessions of the UDHR in 1947 and 1948,Footnote 83 but also to at least six of the eighteen sessions of the UN Commission on Human Rights (UNCHR) between 1949 and 1968, some of which were in New York.Footnote 84 It also submitted comments to the UNCHR in the context of studies which the Commission carried out on arbitrary detention and the right to asylum.Footnote 85
Just as it is possible to find early instances of the ICRC taking an active interest in human rights law, so there is evidence of the UN taking an early interest in humanitarian law and working together with the ICRC. In particular, in the early 1950s, the General Assembly is seen urging states to assist with the repatriation of prisoners of war after World War II. The law relating to prisoners of war plainly relates to international humanitarian law rather than human rights law and falls squarely within the core mandate of the ICRC. As a result, if cooperation between the two agencies had been minimal in these years, we would expect that the issue of prisoners of war would have been an obvious one to have been dealt with exclusively by the ICRC.Footnote 86 Yet instead, two General Assembly resolutions in 1950 and 1953 show the General Assembly directly invoking the Third Geneva Convention Relative to the Treatment of Prisoners of War in its call upon governments to act in conformity with these international standards.Footnote 87 In its 1950 resolution, the Geneva Assembly asks the Secretary-General to convene a commission composed of three qualified and impartial people chosen by the ICRC, or failing that, the Secretary-General himself, to settle the question of prisoners of war in a humanitarian spirit. This is a clear indication that the UN appreciated that its mandate overlapped with that of the ICRC, and another indication that the two organisations were often prepared to cooperate to see those mandates fulfilled.
Likewise in 1953, the General Assembly is seen invoking international humanitarian law relating not only to prisoners of war, but also to the conduct of hostilities. This is another early example of the General Assembly addressing issues that classically fall within the ICRC's mandate and explicitly referring to international humanitarian law. In its resolution on the conflict in Korea, the General Assembly recalled:
the basic legal requirements for humane treatment of prisoners of war and civilians in connection with the conduct of hostilities are established by general international law and find authoritative reaffirmation in the Geneva Conventions of 1929 and 1949 relative to the treatment of prisoners of war and in the Geneva Convention of 1949 relative to the protection of civilian persons in time of war.Footnote 88
Stating that it desired to ‘secure general and full observance of the requirements of international law and of universal standards of human decency’, the General Assembly went on to express its grave concern at reports that North Korean and Chinese Communist forces were employing ‘inhuman practices’ against soldiers under UN command and against the civilian population of Korea. With a clear reference to Common Article 3 of the Geneva Conventions, the General Assembly went on to:
condemn … the commission by any governments or authorities of murder, mutilation, torture, and other atrocious acts against captured military personnel or civilian populations, as a violation of rules of international law and basic standards of conduct and morality and as affronting human rights and the dignity and worth of the human person.Footnote 89
This General Assembly resolution is significant because it shows the UN – long before 1968 – directly invoking international humanitarian law relating not only to protected persons but also to the conduct of hostilities. It is also significant because it categorises violations against prisoners of war and civilians as being breaches of both international humanitarian law and human rights law. This not only confirms an understanding on the part of the General Assembly that human rights law applies in times of conflict, but is also a clear indication that the General Assembly saw the two bodies of law as having overlapping application at times. It is also further evidence that that the institutional divide between the ICRC and the UN was not as profound – before 1968 – as is often suggested.
Possible explanation for the entrenchment of the dominant narrative
If this revised view of the historical relationship between the two bodies of law and the ICRC and UN is accepted, one wonders why the perception that the two bodies of law and their two institutions were completely separate in the years between 1948 and 1968 has become so entrenched in contemporary academic literature. The answer likely lies in the fact that the relationship between international humanitarian law and international human rights law was little mentioned – as an issue worthy of any debate or discussion – in academic literature before 1968. Indeed, the issue only began to be debated – at an academic level – after the Tehran conference in 1968 and the adoption of Resolution XXIII on Respect for Human Rights in time of Armed Conflict as well as the Reports of the Secretary-General entitled ‘Respect for Human Rights in Armed Conflicts’ that followed in 1969 and 1970.Footnote 90 Evidence of the debate's importance is illustrated by the fact that when the San Remo Institute of Humanitarian Law was established in 1970, its first ever congress in the September of that year was given the theme ‘Human Rights as the Basis of International Humanitarian Law’. One imagines that this theme, so worded, would have been controversial to commentators at the time. Certainly, in 1984, Robertson, who presented a paper on the topic of this headline theme, recalled that ‘strong criticism of [his paper] was expressed by a number of experts’.Footnote 91 And clearly, as the 1970s wore on and the drafting of the Additional Protocols to the Geneva Conventions prompted more reflection on the relationship between the two bodies of law, there was an increasingly large body of academic literature addressing this relationship. Evidence of the increased intensity of the debate, and the polarisation of views that accompanied it, can also be seen in a chronological reading of three articles on the topic during the 1970s by Professor Colonel Draper, a distinguished academic, Nuremberg prosecutor, and fellow speaker at the San Remo conference in 1970. In 1971, Draper appears relatively supportive of the proposition that international humanitarian law and international human rights law ‘have met [and] are fusing together at some speed, and that in a number of practical instances the regime of human rights is setting the general direction and objectives for revision of the law of war’.Footnote 92 Yet in 1974 and 1979, Draper's articles on the subject become markedly more critical of the proposition that human rights law and international humanitarian law might have parallel application in times of armed conflict. By the end of the decade, he takes pains to set out his view that the two bodies of law are ‘diametrically opposed’.Footnote 93
A review of the academic literature from the 1970s reveals that the 1968 Tehran resolution was probably the catalyst for a subsequent academic debate that created a dramatic polarisation of views between what was later referred to as the ‘separatist’ approach and the ‘integrationist’ approach.Footnote 94 Those who fell more into the integrationist camp expressed views that tended to see international humanitarian law as a sub-category of international human rights law or which advocated a merging of the two bodies of law.Footnote 95 The articulation of these views prompted a counter-movement of writings by academics like Draper, who, afraid that the two bodies of law were being confused and that the effectiveness of international humanitarian law was thereby being compromised, emphasised the differences between them.Footnote 96 It is in the early literature from this ‘separatist’ camp that we see frequent claims that human rights instruments have no relevance to armed conflictsFootnote 97 and that the institutions of the UN and ICRC had previously had little or no interest in each other's work,Footnote 98 and the repeated identification of 1968 as the first instance in which the two bodies of law were deemed to have any commonality.Footnote 99 It is these separatist claims which have subsequently been repeated the most often in literature addressing the relationship between the two bodies of law, so much so that they have become an integral part of the accepted narrative of that relationship.
Conclusions
The purpose of this article was to show that these claims in fact exaggerate the reality of the legal landscape before 1968 and place too great an emphasis on the existence of a substantive and institutional separation between the two bodies of law before this date. First, the article has shown that international human rights law and international humanitarian law were not completely separate before the Tehran conference in 1968. The preceding sections have shown that at the time of the drafting of the UDHR and the Geneva Conventions, there was already a strong belief that human rights law would continue to apply in times of armed conflict. Support for this contention has been found in UN Security Council and General Assembly resolutions, academic literature, the travaux préparatoires of the Geneva Conventions, minutes of the meetings from the UNCHR, and statements of those involved or present during the drafting of the UDHR, such as Colonel Hodgson of Australia and Claude Pilloud of the ICRC. Many of the same sources also indicate that in the late 1940s and 1950s there was already a clear appreciation of the conceptual overlap between the two bodies of law in legal circles and that the institutional divide between the UN and the ICRC was not so pronounced as has often been suggested. The article has shown that both the UN and the ICRC took an active interest in each other's work and legal mandate during these years. The ICRC attended meetings relating to the drafting of the UDHR and was a regular non-governmental presence at meetings of the UNCHR in New York and Geneva. Conversely, the UN is seen to have appealed to the ICRC for assistance on issues of mutual competence and on rare occasions to have invoked international humanitarian law on matters related to both protected persons and the conduct of hostilities.
In bringing these historical sources to light, one of the purposes of this article is to adjust the historical record that has been created by the large body of academic literature affirming that human rights law was never originally intended to apply in times of armed conflict. It also seeks to challenge the widespread belief that before 1968, there was no cooperation between the ICRC and the UN and no conceptual links between international humanitarian law and international human rights law. In highlighting these misreadings, it is hoped that this article may assist in challenging the views of the few nations who still do not acknowledge that human rights law applies in times of armed conflict.Footnote 100 It may also serve to lend human rights law a greater legitimacy when it is applied in the sphere of armed conflict, for it is noted that there are many areas where the conceptual parameters of the two bodies of law remain uncertain – for example, the parameters and application of the lex specialis principle, the extraterritorial application of human rights, and the application of human rights law in times of occupation. In discussions relating to these areas, it is remarkable how extensively the historical and philosophical underpinnings of international human rights law and international humanitarian law are referred to and relied upon.Footnote 101 And it is also clear that lawyers seeking to restrict or scale back the application of human rights law often make much of the fact that human rights law was not originally intended to apply to situations of armed conflict.Footnote 102 While there is no doubt that international humanitarian law will very often be the lex specialis in times of armed conflict,Footnote 103 as long as we are told that human rights law was not intended to apply in times of armed conflict at all, there is a danger that its application in this field will be unduly limited. It has been shown that it does not do justice to human rights law's heritage to conceive of it as only being relevant in the context of a fully functioning relationship between the governor and the governed. A historical perspective and jurisprudence from human rights tribunals show that human rights law is more than this, both in origin and in current practice.Footnote 104 This article has shown that the cooperation that increasingly exists between lawyers practising international humanitarian law and international human rights law is part of a long tradition of cooperation between these fields that has in fact existed since the drafting of the UDHR in 1948.
