This page intentionally left blank International Human Rights and Humanitarian Law How international human rights and humanitarian law protect vulnerable individuals in times of peace and of war? Ren´e Provost analyses systemic similarities and differences in the construction of each body of law, showing how they achieve a similar goal By detailing the dynamics of human rights and humanitarian law, Provost reveals how each performs a task for which it is better suited than the other, and that the fundamentals of both fields remain partly incompatible This helps us understand why their norms succeed in some ways and fail, at times spectacularly, in others Provost’s study represents innovative and in-depth research, covering all relevant materials from the UN, ICTY, ICTR, and regional organisations in Europe, Africa and Latin America This study will be of interest to academics and graduate students in international law and international relations, as well as to legal practitioners in related fields, and NGOs active in human rights r e n e´ p r o v o s t is Associate Professor at the Faculty of Law and the Institute of Comparative Law, McGill University He has published in the British Yearbook of International Law, the Columbia Journal of Transnational Law and the University of Miami Inter-American Law Review ca mb r i d ge st u d i e s in i n t e r n a t i o n a l a n d c o mparat i ve law This series (established in 1946 by Professors Gutteridge, Hersch Lauterpacht and McNair) is a forum of studies of high quality in the fields of public and private international law and comparative law Although these are distinct legal subdisciplines, developments since 1946 confirm their interrelationship Comparative law is increasingly used as a tool in the making of law at national, regional and international levels Private international law is increasingly affected by international conventions, and the issues faced by classical conflicts rules are increasingly dealt with by substantive harmonisation of law under international auspices Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law In many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention Professor Sir Robert Jennings edited the series from 1981 Following his retirement as General Editor, an editorial board has been created and Cambridge University Press has recommitted itself to the series, affirming its broad scope The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on new approaches to international or comparative law or conflicts of law Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages General Editors: Professor James Crawford SC FBA Whewell Professor of International Law, Faculty of Law and Director, Lauterpacht Research Centre for International Law, University of Cambridge Professor John S Bell FBA Professor of Law, Faculty of Law, University of Cambridge Editorial Board: Professor Professor Professor Professor Professor Economics Professor Professor Professor Professor Professor Hilary Charlesworth, University of Adelaide Lori Damrosch, Columbia University Law School John Dugard, Universiteit Leiden Mary-Ann Glendon, Harvard Law School Christopher Greenwood, London School of David Johnston, University of Edinburgh Heinz Kăotz, Max-Planck-Institut, Hamburg Donald McRae, University of Ottawa Onuma Yasuaki, University of Tokyo Reinhard Zimmermann, Universităat Regensburg Advisory Committee: Professor Sir D W Bowett QC Judge Rosalyn Higgins QC Professor Sir Robert Jennings QC Professor J A Jolowicz QC Professor Sir Elihu Lauterpacht QC Professor Kurt Lipstein QC Judge Stephen Schwebel A list of books in the series can be found at the end of this volume International Human Rights and Humanitarian Law Ren´e Provost The Pitt Building, Trumpington Street, Cambridge, United Kingdom The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © René Provost 2004 First published in printed format 2002 ISBN 0-511-04186-1 eBook (netLibrary) ISBN 0-521-80697-6 hardback A mes parents, pour tout Contents Acknowledgments Table of cases Table of treaties Table of other international instruments Introduction PART I 1 Normative frameworks Introduction 13 Rights and procedural capacity Rights 16 17 18 26 42 43 49 54 Human rights Humanitarian law Procedural capacity Substantive right to a remedy International standing Conclusion page x xii xviii xxxiv Obligations and responsibility Obligations Human rights Humanitarian law Responsibility Role of responsibility Duty to prosecute Conclusion to Part I vii 57 58 58 75 102 103 110 116 viii contents PART II Reciprocity Introduction 121 Formation Procedural aspects 127 127 127 130 133 133 136 140 141 146 Treaty law Customary law Object and purpose of norms Human rights Humanitarian law Reservations and reciprocity Human rights Humanitarian law Application Initial applicability and reciprocity Human rights Humanitarian law Further application and reciprocity Article 60 of the Vienna Convention on the Law of Treaties Human rights Humanitarian law Sanction Countermeasures Individual responsibility: the rule tu quoque 182 182 183 201 227 Conclusion to Part II 236 Belligerent reprisals Countermeasures and human rights PART III 152 152 152 153 163 163 167 172 Application: law and facts Introduction 241 Areas of legal indeterminacy Humanitarian law of armed conflict 247 247 248 253 260 264 269 Inter-state armed conflicts National liberation armed conflicts Non-international armed conflicts under Protocol II Internal armed conflicts under common Article State of emergency under human rights law ... Treaty law Customary law Object and purpose of norms Human rights Humanitarian law Reservations and reciprocity Human rights Humanitarian law Application Initial applicability and reciprocity Human. .. intentionally left blank International Human Rights and Humanitarian Law How international human rights and humanitarian law protect vulnerable individuals in times of peace and of war? Ren´e Provost... Professor of International Law, Faculty of Law and Director, Lauterpacht Research Centre for International Law, University of Cambridge Professor John S Bell FBA Professor of Law, Faculty of Law, University