Legal Protection of the Individual in Crisis Situations within the Territory of a State: Theoretical Background and Instrumentarium for Improvement of the Framework

Abstract: In the traditional model of international law, to which however reality has never exactly corresponded, situations of armed violence fall into clearly defined categories which in their turn appertained to a certain set of rules of international law applicable. For armed conflicts between sovereign states ('war'), international humanitarian law provides a full body of rules. On the other hand, in cases where the armed conflict is to be found within one state only, the range of international law provisions applicable is very narrow, because as an internal situation, it is considered to be within the domestic sphere of the sovereign state and thus not of concern to others. For the very same reason, no international rules are envisaged for internal crisis situations of even lesser intensity. However factual circumstances have changed considerably. Less than ever can situations of armed violence be classified to belong exclusively to one type of conflict. They may have characteristics of several categories, and involve a number of parties involved that do not pertain to the side of the government. These trends have provoked changes in the perspective upon international law. Not least, also human rights issues have gained in relevance in this respect, since such situations also commonly entail a breakdown in the functioning of civil life. The development of crisis situations within the territory of a state raises the question of the legal framework available to cover the circumstances in such a way that the need to protect the individual is taken into account. This thesis examines the legal framework for crisis situations within the territory of a state with a view to possible approaches for strengthening the protection of the individual in these circumstances. For this purpose it also takes up and analyses relevant developments within the international community. In doing so, it concentrates mainly on international treaty law as a background. In its first part, the thesis gives an extensive theoretical background on the international legal framework governing internal crisis situations and presents its inherent shortcomings with regard to both humanitarian law and human rights law. It goes on to analyse in the second part, via two examples, the possibility of improving the framework for protection by way of a new universal instrument of international law. The third part is dedicated to approaches falling back on existing structures of international law and in this context also provides illustrations from practice. As a basis it is established that there indeed are uncertainties in the legal framework governing internal crisis situations. Provisions of international humanitarian law are only applicable after the threshold of 'armed conflict' has been reached, international human rights law is subject to derogation and thus not applicable to its full extent. The combination of the two leads to a grey zone in the legal framework. As an instrumentarium to counter this weakness, two main methods are being considered that can be employed to achieve a strengthened legal conditions for protection of the individual: creation of a new universal document of international law, and recourse to the existing framework of rules. Creation of a new universal document of international law as a remedy methodologically entails more drawbacks than advantages. Either of its two variations examined will not satisfactorily solve the problematic points that lie at the beginning of the debate. Most prominently, both the proposal of an optional protocol to Article 4 of the International Covenant on Civil and Political Rights and the Declaration of Minimum Humanitarian Standards hold the danger of actually reducing protection instead of improving it, because they might by their approach make encourage states to maintain a lower level of protection than the one envisaged in the new text. The second approach, drawing on the existing framework, has considerably more positive aspects to it. The interpretative work by the Human Rights Committee and the international criminal tribunals, and the statutes of the ICTY, ICTR and ICC clarify basic points in the framework applicable in internal crisis situations and thus strengthen the conditions for protection of the individual. Compilations of standards for specific purposes fall back on existing structures and at the same time reflect a number of the positive features of the approach of creating a new universal instrument in the form of a declaration of minimum humanitarian standards but without its drawbacks. Within the entirety of the debate we can generally note that the various fields of law involved - humanitarian law, human rights law, international criminal law, refugee law - are growing closer and there is an increasing realisation of their interdependencies and interaction. This is reflected in the way the approaches looked at seek to integrate contributions from the different sources of law. The thesis also illustrates that non-state actors have received increased attention, and the question of how to adequatly deal with them remains an interesting and urgent topic.