International Humanitarian Law in the Context of Thai Southern Insurgency

Transcription

1 International Humanitarian Law in the Context of Thai Southern Insurgency Thachvud Puttisombat* The insurgency in the southernmost provinces of Thailand erupted in 2004, with an attack on the Fourth Engineering Battalion at Narathiwat Rajakarin Camp on 4 January, 2004, when more than 300 machine guns were robbed. 1 Today, the insurgency has spread throughout Narathiwat, Pattani, Yala and some parts of Songkla. 2 Up to the present time, the goal, plan and agenda of the insurgent groups are still ambiguous, but the short-range strategy appears to be to try to undermine the government s status, provoke of violence, create instability in the area and gain * Judge of the Office of the Judiciary acting Judge of the Criminal Court, LL.B. Chulalongkorn University (Second Class Honours), Thai Barrister-at-Law, LL.M Thammasat University, Diploma in Contemporary Legal Studies Kyushu University, LL.M. George Washington University (Office of the Judiciary Scholarship) 1 Cross Cultural Foundation & Muslim Attorney Center Foundation, Research and analysis of Thai National Security Laws: Songkla Province Case Study (1st ed. 2010) 2 Noting that these regions used to be a sultanate state of Pattani and was later annexed by Thailand in 1902 about 80 per cent of populations is Malays Muslim. See, Neil J. Melvin, Conflict in Southern Thailand, Islamic Violence and the State in the Patani Insurgency SIPRI policy paper No.20, at v (2007)

2 political power over the locals. 3 Of Course, the ultimate scheme of the insurgents is to promote an Islamic state and the independence of Pattani. It is believed that the unrest is coming not only from separatists, but also Islamic extremists, criminal organizations and corrupt Thai officials themselves. 4 Embarrassingly, Thailand appears to be failing in establishing the groups that account for the insurgency and with whom to initiate negotiation. 5 However, there are some groups that the Thai Government pays attention to; such as, the Patani Malay National Revolution Front (BRN), the Patani United Liberation Organization (PULO), the Bersatu- the United Front for the Independence of Pattani, the Komiti Bertindak Kermerdekaan Patani (KBKP), the Majlis Permesyuratan Rakyat Melayu Patani (MPRMP), the Gerakan Mujahideen Islam Pattani (GMIP). 6 3 Institution for National Strategic Studies, National Defense Study, The Borderlands of Southeast Asia: Geopolitics, Terrorism and Globalization 102 (James Clad et al. eds., 2011) 4 Bruce Vaughn et al., Cong. Research Serv., RL34194, terrorism in Southeast Asia 23 (2009) 5 See id. at Supalak Karnchanakhundee, Ongkorn Karntakyak lae Karn taktour in Kamnerd Fai Tai [Organization Separation and Dissolution in Origin of Southern Fire] 214, (Surichai Whankeaw eds., 2007). 2

3 Between 2004 to October 2010, from the database of General Staff Sub Division 2 (Intelligence), Southern Border Province Police Bureau, there were 11,371 incidents of unrest; leading to approximately 4,287 deaths, of which percent were civilian. 7 The targets range from military personnel to symbols of the Thai government, including public officials, schools, and Buddhist temples, as well as innocent civilians. Several methods have been employed by insurgents, including killing, decapitating, bombing, forced disappearance, threatening, and improvised explosive devices (IED). 8 The number of victims continues to grow. Thai National Security Laws 9 7 Kitti Ariyanon, Punha Kwammaisangob nai Jungwat Chaidanparktai : Su doey Tuttasart lae Kem Mung Samhrub Ratthai [Problem of Insurgency in Southern Region : dealing with strategy a goal for Thailand] (2010), download/article/article5.pdf. By January 2010, there are approximately 6,509 injuries. See Srisompob Jitpiromsri, Six Year of Southern Fire: Dynamics of Insurgency and formation of the New Imagined Violence, (Last visited Aril 3, 2012) 8 See Melvin, supra note 2, at This part adapting from Vitit Muntarbhorn, National Security Laws: Key Implications for Thailand, in Cross Cultural Foundation & Muslim Attorney Center Foundation supra note 1, at

4 There are six categories of laws under the canopy of the Constitution of 2007 that deal with national security threats. The first category is criminal law and criminal procedure law. The salient feature of this category pertaining to the present issue is the Act Amending the Criminal Code 2003, which provides criminal offense against the acts in respect of terrorization in section 1/1 and section 135/1 135/4 of the Thai Criminal Code of The second is the Martial Law of 1914, which was promulgated in the time of the Thai monarchy. The third is the Emergency Decree on Public Administration in Emergency Situation, promulgated in 2005 ( Emergency Decree ), as a law that has been widely employed to cope with the Thai Southern Insurgency. The forth is the Internal Security Act of Unlike the Emergency Decree, the Internal Security Act was passed to handle the situation of political turmoil in Bangkok rather than the southernmost region. The fifth are the latest law in the regime of anti-money laundering law and the anti-financial sponsorship of terrorism law. The last one is a miscellaneous category comprising of various relevant laws such as computer crime law or the Dangerous Substance Act. The Purpose of Insurgency and Counterinsurgency 4

5 It is well recognized that using violence and terror is an effective way to establish communication with a de jure government. 10 Violence is also used to provoke a government into deploying military force and create ferocity and instability within a region. Surprisingly, the Thai insurgents, in turn, assert that, since the situation has reached the threshold of an armed conflict, their attacks towards Buddhist civilians are therefore warranted because they are legitimate targets pursuant to the law of war. 11 To counter this strategy, it is necessary to acknowledge that an insurgent movement is a war of the people. The answer lies not in pouring more troops into the jungle, but in the hearts and minds of the people. 12 Counterinsurgency 10 Elizabeth Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (1996). 11 Human Right Watch, Thailand: Southern Insurgents Bomb Nightspots (September 21, 2011), 12 Sir Robert Templers, a British military commander. He is best known for his defeat of the guerrilla rebels in Malaya between 1952 and See Forces Employment Doctrine Center, Winning Hearts and Minds, Historical Origins of the Concept and its Current Implication in Afghanistan 26. See Also Webster Online Dictionary available at dictionary.org/definitions/templer?cx=partner-pub %3av0qd01- tdlq&cof=forid%3a9&ie=utf 8&q=Templer&sa=Search#906 See also Dale Stephens, Counterinsurgency and Stability Operations: A New 5

6 (COIN), thus, relies not only on the efficacy of military operations, but also on acquiring legitimacy and righteousness in the conflict. In doing so, COIN must rely on the acceptable standards of civilized nations as well as international standards. International Standards 1. International Humanitarian Law International Humanitarian Law ( IHL ) is the rules that govern the conduct of states to wage war and provide safeguard to persons who do not take part or no longer take part in the conflict. It has also been recognized in the name of the law of war and the law of armed conflict. This set of rules applies when armed conflicts occur, and apply to all parties. 13 IHL is based largely in the form of treaties in a series of the Hague Conventions and the Geneva Conventions. The former regulates the conduct of warfare; the latter regulates persons hors de combat or surrender, persons who do not participate in the conflict, and rule of occupation. 14 The gist of the Geneva Approach to Legal Interpretation, in 86 Int l L. Stud., The war in Iraq: A Legal Analysis 290, (Raul A. Pete Pedrozo ed., 2010). 13 Int'l Comm. of the Red Cross, What is International Humanitarian Law? (Jul. 2004), 14 Stephen Dycus et al., National Security Law 234 (5 th ed. 2011) 6

7 Convention series is known as the four Geneva Conventions of 1949 and their Protocols (API, APII and APIII). 15 The four Geneva Conventions attain universal ratification. 16 In addition to treaties, IHL can also be found in the form of customary international humanitarian law ( customary IHL ), 17 such as principle of distinction, principle of proportionality and so on. 18 According to the International Committee of the Red Cross ( ICRC ), IHL distinguishes between international and non-international armed conflict. ( IAC and NIAC ). The former is the armed conflicts at least two states are involved ; whereas, the latter is those restricted to the territory of a single state. 19 We can find many treaties that regulate IAC, but a very limited number of them designed for NIAC. 20 In 2005, ICRC published Customary International Humanitarian Law ( ICRC s study ) to justify the practice of states which become customary 15 Int'l Comm. of the Red Cross, Treaties and Customary law : Overview (Oct. 29, 2010), 16 Id. 17 Id. 18 See Jean-Marie Henckaerts, Customary law, 87 Int l Rev. Red Cross 175, (Mar. 2005). 19 Int'l Comm. of the Red Cross, supra note Henckaerts, supra note 18, at

8 international law. The study declares 161 rules of customary IHL, 21 in which 148 rules apply in both IAC and NIAC. 22 In Thailand, the conflict has arisen in the southernmost portion of the country. As a result, it can be categorized as a non-international armed conflict. Since Thailand is not a party of APII, 23 which apply in NIAC, thus, only Common Article 3 of the four Geneva Conventions and customary IHL will be examined. 1.1 Geneva Conventions of 1949 The violence and cruelty that occurred during World War II led to the adoption of the four pieces of the Geneva Conventions in Throughout the four Conventions, articles 1-3 of each are the same. 24 Subsequently, the growth of 21 See Int'l Comm. of the Red Cross, Customary International Humanitarian Law: Overview (Oct ), 22 Jelena Pejic, The Protective Scope of Common Article 3: More Than Meets the Eye, 93 Int l Rev. Red Cross 189, (Mar. 2011). 23 See Int'l Comm. of the Red Cross, State Parties to the Following International Humanitarian Law and Other Related Treaties (Feb. 16, 2012), Treaties.pdf 24 Dycus et al., supra note 14 at

9 non-international armed conflicted and enhancement of the protection of victims, two Additional Protocols were adopted in The most recent additional protocol is the Additional Protocol III, adopted in 2005 regarding additional distinctive emblem. 25 However, there are only Common Article 3 and AP II dealing with NIAC. Common Article 3 Among the provisions in the four Geneva Conventions, only Common Article 3 regulates the conflict not of an international character. 26 It is regarded as The First Geneva Convention protects wounded and sick soldiers on land during war. The Second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war. The Third Geneva Convention applies to prisoners of war. The Fourth Geneva Convention affords protection to civilians, including in occupied territory. See Int'l Comm. of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols (Oct ), 25 Id. Int'l Comm. of the Red Cross. 26 Geneva Convention Relative to the Treatment of Prisoners of War art 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Convention to Protect Prisoners of War]. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: 9

10 convention in miniature. 27 The provision states a minimum standard to which the High Contracting Parties are bound to apply. 28 Even Common Article 3 is the (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. 27 Sandesh Sivakumaran, Re-envisage The International law of Internal Armed Conflict, 22 Eur. J. Int'l L. 219, 223 (Feb. 2011) 28 Convention to Protect Prisoners of War, supra note

11 foundation of IHL as a minimum standard applied in every armed conflict; 29 it affords no more than a rudimentary guarantee of rights, which, still, is insufficient and inevitably requires additional standards and norms. 30 The Application of Common Article 3 (i) Armed Conflict Common Article 3 states that In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties The first sentence of the article connotes that the article will apply only in the situation that reaches the threshold of armed conflict. It needs to recall that security forces can be called for other operations rather than engaging in war or armed conflict such as law enforcement, riot control, security checkpoints, border patrol or disaster relief which is definitely not armed conflict. 31 The Conventions do not define the meaning of armed conflict; therefore, it 29 Andrew J. Carswell, Classifying the conflict: A Soldier s Dilemma, 91 Int l Rev. Red Cross 143, 150 (Mar. 2009). 30 See Pejic, supra note 22, at Carswell, supra note 29, at

12 imposes difficulty to the governments whether a particular conflict reaches the level of armed conflict or not. 32 In the judgment of Appeal Chamber in Tadic stated that an armed conflict exists whenever there is protracted armed violence between governmental authorities and organized armed group, in which the term protracted includes elements of both intensity and duration of violence. 33 Meanwhile, the initial report of International Law Association give two criteria for armed conflict, those are, (1) the presence of organized group[s] and (2) engage[ment] in intense armed fighting. 34 The criteria to determine the existence of organized groups; including, structures, mechanism and disciplinary rules within the armed group, existence of headquarters, the ability to procure, transport and distribute arms, the ability to plan, coordinate and carry out military operation, the ability to negotiate and conclude agreement such as ceasefire or peace accords and so forth. 35 Nevertheless, the ICRC suggested the definition of armed conflict in NIAC as: 32 Id. at Id. at See Mary Ellen O Connell, Defining Armed Conflict, 13 J. Conflict & Security L. 393 (2008) 35 Pejic, supra note 22, at

13 protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization. 36 (ii) The Territorial Scope When read literally, Common Article 3 applies limitedly in the territory of one state. However, non-international armed conflicts can occur in the territories of more than one state such as in the case of spill over to a neighboring state, multinational NIACs, or UN forces for peacekeeping operation. 37 The International Court of Justice also seems to prefer that the scope of Common Article 3 not be 36 Int'l Comm. of the Red Cross, How is the Term Armed Conflict Defined in International Humanitarian Law (Mar. 2008), /other/opinion-paper-armed-conflict.pdf 37 See Pejic, supra note 22, at

14 limited only to the territory of one state. 38 Taking into account the ambiguity of the application of Common Article 3, IHL is triggered by armed conflict. But, there is still no common consensus among states about the applicability of Common Article 3 and its definition; thus, it have to be determined in case-by-case basis. It can be implied that this term can be construed arbitrarily. 39 According to the Vienna Convention on Law of Treaties, article 31, a treaty shall be interpreted in good faith, ordinary meaning, and in the light of its object and purpose; therefore, the meaning of armed conflict must be construed in accordance with its terms and intent. 40 In Commentary of the (third) Geneva Convention of 1949 on Article 3, the commentary give an example of its application including insurgents organized as military and in possession of a part of the national territory, insurgent group that government recognized as belligerent, the insurgent claim itself as belligerent, the insurgent that dispute 38 Id. at 201. We also can see some countries take this notion such as the conflict in Rwanda or United States in which the Supreme Court ruled in Hamdan the extraterritorial effect of Common Article 3. See Id. 39 See Natasha Balendra, Defining Armed Conflict, Cardozo L. Rev. 2461, 2463, (May. 2008) 40 Id. at

15 has been admitted to the agenda of the Security Council, or an insurgent that has an organization purporting to have the characteristic of a state. 41 However, the commentary continues and articulates that the scope should not limit to the aforesaid but should be as wide as possible. 42 Whatever the object and purpose may be, practically, when there is no enforcement body, the application of international law depends heavily on the benevolence of states to give its effect; IHL is also not in a better situation. 43 The government, however, is always reluctant to recognize the existence of armed conflict because it will give international character and right to the armed groups. In short, most states prefer to leave the issue to the domestic criminal justice system, 44 in stead of the final paragraph of Common Article 3 which states that it does not affect the legal status of the Parties in the conflict. Moreover, States 41 Int'l Comm. of the Red Cross, Commentary on Convention (III) relative to the treatment of Prisoners of War (Last visited March 2, 2012), 42 Id. 43 Carswell, supra note 29, at Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (2010) 15

16 sometimes see the work of ICRC as an interference with internal state affairs 45 ; thus, they are unwilling to treat the insurgency as armed conflict. 46 Common Article 3 does not require a higher threshold for its application in comparison to the threshold of APII which is not triggered by internal disturbance and tensions, such as riots, isolated and sporadic act of violence and other acts of similar nature. 47 However, the absence of a definition of armed conflict thus leaves room to the States for their interpretation. 48 (iii) Area of Protection The IHL suzerainty in NIACs can be divided into two areas. The first is the protection of persons in enemy hands which the Common Article 3 directly and specifically cover. The second is the rule on the conduct of hostilities which is not in the scope of Common Article 3 but fall into the array of customary 45 Int'l Comm. of the Red Cross, supra note In armed conflict, ICRC can request to visit detainees and demand certain standard. Without armed conflict, ICRC has no right to monitor the situation. ICRC has pressured Sri Lanka and other states to acknowledge the armed conflict and comply with IHL, but it was ignore. While, UK still contends of its situation is not amount to armed conflict. O Connell, supra note 34, at Chadwick, supra note 10, at Id. 16

17 international humanitarian law. 49 The protective area of Common Article 3 covers victims of hostilities, including enemy hors de combat and persons that have taken no participation in conflict. It prohibits violence to life and person, all inhumane treatment and calls for the protection of fair trials and procedural safeguards of those being detained; all of which are the fundamental guarantee and the foundation of IHL. 50 To further explain the extent of international standards in NIAC, it is necessary to recognize that Common Article 3 itself is customary international humanitarian law 51, automatically binding to states and can intermingle with other international law such as human right laws. 1.2 Customary International Humanitarian Law Customary international law originates from state practice (usus) and opinio 49 Pejic, supra note 22, at 205, 219. Also noting that the two domain of protection rely on the work of Jelena Pejic, which I think it is very comprehensive and helps directly in the topic of this article. 50 See. Id. at Id. at

18 juris, to say, a general practice accept as law 52 and, in relevance to humanitarian law, applies to all parties to a conflict; regardless, they are party to particular IHL treaties or not. 53 The shortcoming of the application of IHL treaties in NIAC is that they merely apply to the parties who ratified them; further, there are very small numbers of them applying to NIAC, which is not sufficient. Sometimes, there is only Common Article 3 to govern such conflict. This brought ICRC to study which rules of humanitarian law become customary international law and, consequently, fill the gap of the aforesaid problems. 54 In 2005, ICRC published a study on customary international law, which contains 161 rules divided into six parts: Principle of Distinction, Specifically Protected Persons and Objects, Specific Methods of Warfare, Weapons, Treatment of Civilian and Persons hors de combat, Implementation. Most of 52 Henckaerts, supra not 18, at Id. at Id. at

19 them apply in NIAC. 55 This brings about criticism of ICRC s work on customary IHL in non-international armed conflict that it is far more expansive and even regards ICRC s study as an act of monarchy. 56 However, an international tribunal eventually cited them as customary IHL. 57 Even though most rules can apply in both IAC and NIAC, there are some differences between IAC and NIAC. For example, in Rule 3, the status of combatant governs only IAC, but not NIAC. 58 The release of a person deprived of his or her liberty also differs in regard to Rule In IAC Rule 128 (1), POWs must 55 See id. at , 184, Leah M. Nicholls, The Humanitarian Monarchy Legislates: The International Committee of the Red Cross and its 161 Rules of Customary International Humanitarian Law, 17 Duke J. Comp. & Int l L. 223 (Fall 2006). 57 Id. at 250. An Interlocutory appeal in Hadzihasanovic cited to Customary International Humanitarian Law seven times, each time accepting the ICRC s articulation of the rule as entirely accurate. 58 Malcolm MacLaren & Felix Schwendimann, An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law, 6 German L. J. 1217, 1229 (2005). 59 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law 451(2005) (Rule 128) A. Prisoners of war must be released and repatriated without delay after the cessation of active hostilities. [IAC] 19

20 be released after the cessation of active hostilities; whereas, in NIAC, Rule 128 (2) release must be as soon as the cessation, for the deprivation ceases to exist. 60 Additionally, the absence of a precise definition of the term armed conflict still remains. 61 Customary IHL in non-international armed conflict, in the part of Treatments of Civilians and Persons hors de combat, has laid down the fundamental guarantee 62 which reiterates what was described in Common Article For Example; Rule 87. Civilians and persons hors de combat must be treated humanely. Rule 88. Adverse distinction in the application of international humanitarian law based on B. Civilian internees must be released as soon as the reasons which necessitated internment no longer exist, but at the latest as soon as possible after the close of active hostilities. [IAC] C. Persons deprived of their liberty in relation to a non-international armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist. [NIAC] 60 MacLaren & Schwendimann, supra note 58, at Id. at Namely, Rule Pejic, supra note 22, at

21 race, color, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria is prohibited. Rule 90. Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited. Rule 99. Arbitrary deprivation of liberty is prohibited. Rule 100. No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees. 64 The ICRC s study also covers what is not in the spectrum of Common Article 3 but expands comprehensively to other issues. The Study also bases a great deal of its justification on International Human Right Law. We, thus, in turn, will examine basic principle of IHR and then, will wrap up the combination usage of Common Article 3, Customary International Humanitarian Law and International Human Rights Law, in an NIAC environment. 2. International Human Rights Law 64 See Henckaerts, supra note 18, at

22 The body of International Human Rights Law ( HRL ) can be found in International Bill of Human Rights, 65 and other particular human right treaties. 66 Like IHL, some HRL are in the form of customary international law and some of them are regarded as jus cogens; for instance, torture, slavery, genocide, and crime against humanity. 67 Under ICCPR, States have to respect and ensure that all individuals within 65 The International Bill of Human Rights is not itself a treaty, but refers to five documents: the Universal Declaration on Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and its two optional protocols. Alex Conte, Human Rights in the Prevention and Punishment of Terrorism 260 (2010). 66 Id. Thailand has become a party to international human rights instrument and has already acceded to five core UN human rights instruments as follows: 1) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 2) Convention on the Rights of the Child (CRC) 3) International Covenant on Civil and Political Rights (ICCPR) 4) International Covenant on Economic, Social and Cultural Rights 5) International Convention on Elimination of All Forms of Racial Discrimination (CERD) Ministry of Foreign Affairs, Human Rights Promotion in Thailand (Aug. 2005), and also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) See United Nation, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Oct. 2, 2007, 1465 U.N.T.S. 85 (Mar. 5, 2012), IV-9&chapter=4&lang=en#Participants 67 Conte, supra note 65, at

23 its territory and subject to its jurisdiction the rights recognized in the covenant. 68 It also creates vertical obligations of states towards their citizens; 69 including, right to life, prohibition of torture or to cruel, inhuman or degrading treatment or punishment, prohibition of forced or compulsory labor, right to liberty, right to be treated with humanity and human dignity, equality before the courts and tribunals and entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, right to privacy, right to freedom of thought, conscience and religion, right to freedom of expression, right to peaceful assembly, right to freedom of association, etc. 70 HRL, in particular ICCPR, allows two restrictions on certain rights. The first category is limitation. We can find this type of restriction in numerous phrases, which can be divided into three groups. The first is the limitation which is prescribe[d] by law. The second is [pursuant to] legitimate purpose ; for example, national security public safety public order human rights and the 68 International Covenant on Civil and Political Rights art. 2(1), Dec. 16, 1966, S. Treaty Doc. No , 6 I.L.M. 368 (1967), 999 U.N.T.S [hereinafter ICCPR]. 69 Conte, supra note 65, at See more detail in ICCPR part III art. 6-27, supra note

24 freedom of other. The third is necessity and proportionality such as necessary in democratic society. 71 The second category of restriction is called derogation, which is set forth in article 4 of ICCPR; it allows states to derogate from certain of their obligations in time of public emergency which threatens the life of the nation. However, derogation from certain rights in article 4(2) is not permissible, such as right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, the prohibition against slavery and servitude, freedom from imprisoned for failure to fulfill contract, freedom from retroactive punishment, the right to be recognize as person, freedom of thought, conscience and religion. 72 The Interplay between International Humanitarian Law and International Human Rights Law in the Time of Armed Conflict HRL and IHL serve the same goal as to protection of persons and promotion of human dignity. The relation between the two is that HRL applies as a lex 71 Office of the United Nations High Commissioner for Human Rights, Human Rights, Terrorism and Counter-terrorism Fact Sheet No. 32, (Jul. 7, 2008). 72 Id. at

25 generalis, while IHL apllies as a lex specialis-- applying during armed conflict. Both can be used as supplementary to each other. 73 The former binds only states, but not non-state armed groups. Besides, most groups do not have the competence to fulfill the obligation set forth by HRL. 74 The center of problems is whether HRL still apply during the time of armed conflict or not. 75 In advisory opinion of International Court of Justice on Nuclear Weapon, the court observed that the protection of ICCPR does not cease in time of war, except by derogation according to article 4. The test of what arbitrary deprivation of life falls to be determined by applicable lex specialis, that is, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. 76 Likewise, the European countries view that HRL always applies 73 Int'l Comm. of the Red Cross, Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts in 31 st International Conference of the Red Cross and Red Crescent 14 (Oct. 2011). 74 Id. 75 Noam Lubell, Challenges in Applying Human Rights Law to Armed Conflict, 87 Int l Rev. Red Cross 737 (Dec. 2005). 76 On the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, (Jul. 8) 25

26 together with IHL. 77 The United Nations also views in the same way. 78 In contrast, the United States takes a view that HRL does not apply during armed conflict. 79 HRL can give IHL an add-on where the details of IHL alone are inadequate or absence. 80 Although both bodies of law have the same goal, HRL and IHL have little in common regarding their origin, theories, ideological as well as language; thus, in certain extent, they are different from each other. For instance, the concept of proportionality. 81 Under HRL proportionality, states are expected to arrest the group members before using lethal forces. 82 Whilst, in IHL proportionality, if the situation amounting to an armed conflict and the group members can be classified as combatant, using the lethal force is permissible if such an attack does not harm surrounding innocuous civilians living nearby. 83 Or, the protection of life in HRL is inconsistent with that of IHL, which allows combatants to kill adverse 77 Dycus et al., supra note 14, at Cordular Droege, The Interplay between International Humanitarian Law and International Human Rights Law in Situation of Armed Conflict, 40 Isr. L. Rev 309, (2007). 79 Dycus et al., supra note 14, at Lubell, supra note 75, at See Droege, supra note 78, at 312. See also Lubell, supra note 75, at Lubell, id. at Id. 26

27 parties, and not be regard as an arbitrary killing. In NIAC where it is hard to distinguish civilians from combatants, it tempts a commander to adopt shoot-tokill policies, which, arguably, conflict with HRL. 84 Whatever the case may be, the increasing of customary IHL rules can create further incongruity between the two bodies of law. 85 The Combination Application of International Humanitarian Law and International Human Rights Law in Common Article 3 conflict. Before the emergence of HRL, IHL was the only source of protection for individuals during time of hostility. 86 Today, other than IHL treaties, we have HRL and customary IHL regulate during the armed conflicts. When combines all of them, we can draw a contour of standards and norms into two area; treatment of persons and conduct of hostilities. 87 Noting that this part is rely mainly on the work of Jelena Pejic, a legal advisor in the Legal Division of ICRC, in which, in my opinion, elaborates a comprehensive notion of this issue. 84 Id. at Id. at See Balendra, supra note 39, at Pejic, supra note 22, at

28 1. Treatment of Persons (i) Procedural Safeguards in Internment Two types of NIAC detention are detention for security reasons ( internment/administrative detention ) 88 and detention in conjunction with a criminal process. 89 In Rule 99 of ICRC s study, the arbitrary deprivation of liberty is prohibited. 90 And, in ICCPR, article 9, people has the right to liberty except on such grounds and in accordance with such procedure as are established by law. 91 This ICCPR provisions also require procedural safeguards and are one of the justification for Rule In IHL, internment is permissible, but it requires legal sources to detain persons and procedural safeguards. 93 In sum, internment must be an exceptional measure, not a substitute for criminal prosecution, and must conform to 88 Internment is a deprivation of liberty by an order of executive branch, not that of a judiciary and without criminal charge. Id. at Id. 90 Henckaerts & Doswald-Beck, supra note 59, at 344 (Rule 99). 91 ICCPR art See. Henckaerts & Doswald-Beck, supra note 59, at Pejic, supra note 22, at

29 principle of legality, 94 Procedural safeguard is needed to detain persons, including Right to information about the reasons for internment, Right to be held in a recognized place, Right to challenge the lawfulness of his or her detention, Right to be reviewed and must be carried out by an independent and impartial body, Right to legal assistance, Right to periodical review, Right to attend the proceedings, Right to contacts with members, Right to the medical care and Access to persons interned must be allowed. 95 (ii) Judicial Assurance This right of detainees was stipulate consonantly in Common Article 3, Customary IHL, ICCPR and Additional Protocol I and II. The right to fair trial in ICCPR, article 9, 14 can be derogable; however, since this right was also provided in IHL, it is therefore considered as a de facto non-derogable. 96 Providing below is a list excerpted and modified from Jelena Pejic, The 94 Jelena Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in armed Conflict and Other Situations of Violence, 87 Int l Rev. Red Cross 375, (Jun. 2005). 95 See Id. at See Pejic, supra note 22, at

30 Protective Scope of Common Article 3: More Than Meets the Eye, 93 Int l Rev. Red Cross 189, (Mar. 2011): A. Rules of general application Individual criminal responsibility. Presumption of innocence. Right not to be compelled to testify against oneself or confess guilt. B. Pre-trial rights Right to liberty and prohibition of arbitrary arrest and detention. Right to information. Right to legal counsel before trial. Right to contacts with the exterior. Right to judicial or equivalent supervision of detention. Right to trial within a reasonable time. C. Rights at trial 30

31 Right to a fair and public trial by a regularly constituted, independent, and impartial tribunal. Right to be informed of the charge(s). Right to adequate time and facilities for the preparation of defense. Right to be tried without undue delay. Right to be tried in one s presence. Right to defend oneself in person or through counsel. Right to call and examine witnesses. Right to the free assistance of an interpreter. Right to a public judgment. Right to appeal. Right not to be re-tried for the same offence. Prohibition of retroactive application of criminal laws. 97 (iii) Treatment of Persons in Detention 97 Pejic, supra note 22, at 214. See Also Henckaerts & Doswald-Beck, supra note 90, at (Rule 100). 31

32 This requirement was set forth in Common Article 3 and ICRC s study as humane treatment which is an overarching concept. For example, no torture or other cruel, in humane, or degrading treatment, force disappearance, extrajudicial killing, adequate food water and supply to detainees including hygiene and clothing, accommodation, family contact. 98 It covers all necessary to human to live with their dignity and integrity as a human. 2. Conduct of Hostilities Common Article 3 provides rule on the protection of persons but not for the conduct of military operation in hostilities. 99 To decide which rules governs the conduct of hostilities in NIAC, it needs to look all relevance treaties applied to NIAC 100 and must examine the rules of Customary IHL in ICRC s study such as the principle of distinction, prohibition of indiscriminate attack, proportionality, the use 98 Pejic, supra note 22, at Id. at For Example the Convention on Certain Conventional Weapons as amended, the Statute of the International Criminal Court, the Ottawa Convention on the Prohibition of Anti-personnel Mines, the Chemical Weapons Convention, the Hague Convention for the Protection of Cultural Property and its Second Protocol. See Henckaerts, supra note 18, at

33 of weapon, the method of warfare, which is highly related to pragmatic military operation and most of them beyond the scope of this article. 33