Turku Declaration on Minimum Humanitarian Standards

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The designation of Turku on minimum humanitarian standards ( Engl. Turku Declaration of Minimum Humanitarian Standards ) is a draft international treaty in the field of international humanitarian law , the non-state by a committee of experts at the Institute of Human Rights of the Åbo Akademi in Finland Turku developed and the Adopted December 2, 1990.

The Åbo Akademi in the Finnish city of Turku, after which the declaration is named.

The content of the declaration includes elementary rules for the protection of human rights as well as minimum humanitarian standards, which should apply without restriction in all situations, regardless of the legal classification of the respective situation.

background

See also: International Humanitarian Law # Problems and Inadequacies

In the increasingly violent internal conflicts that arise, international humanitarian law is not applicable, while human rights and humanitarian principles are being massively violated there.

The Turku Declaration is a solution to the largely unsatisfactory state of affairs that international humanitarian law - in particular the Geneva Conventions and their additional protocols - are generally only applicable in situations of international or non-international armed conflict . These are established terms of international humanitarian law which have their origin in the common Articles 2 and 3 of the Geneva Conventions.

In the current version of the Geneva Conventions and their additional protocols, the term “ armed conflict ” is still based on the idea of war between states as a rule. The conflict between armed groups and a state on its territory, on the other hand, continues to be an exception according to the conventions. As a result, international humanitarian law no longer does justice to the increasing complexity of modern conflicts and the fact that open war between states is practically the exception today. Rather, the conventions are often not applicable in modern conflicts, or at least it is highly controversial whether and to what extent the protective rights, commandments and prohibitions of international humanitarian law are applicable.

The following problems are particularly important here:

  • On the one hand, the so-called “ internal conflict ” does not fall under the term “ armed conflict ” in the sense of the conventions. These are constellations in which hostilities take place between armed groups and a state on its territory, or between different non-state and / or state factions among themselves. In contrast to the "armed conflict" in the sense of the conventions, however, the hostilities in the "internal conflict" have not (yet) led to individual groups gaining a noticeable degree of organization, firm control over a certain part of the national territory or the like could. The Geneva Conventions are therefore not (yet) applicable, but such situations - which are typical of the transition between civil war and " armed conflict " - regularly lead to massive use of force and serious human rights violations.
  • The recent past has also shown that such a transition to an " armed conflict " is by no means inevitable , but that the state of the "internal conflict" can sometimes persist for a long time. A typical example of this is the failed state in which state authority has failed and armed militias have been fighting for supremacy with varying degrees of success, as has been the case in Somalia for various periods since the fall of Siad Barre .
  • And even if the transition has taken place and the situation can then be objectively qualified as an " armed conflict ", the vagueness of the wording, especially on the " non-international armed conflict ", leads to a far-reaching interpretability of the objective facts. This makes the application of international humanitarian law " largely dependent on the respective political interests of the conflicting parties ".

content

The declaration consists of a preamble and eighteen articles which are not divided into sections. Nevertheless, their content can be roughly divided into the sections Scope (Articles 1 and 2), Rights and Obligations (Articles 3 to 16) and Legal Interactions (Articles 17 and 18).

preamble

The preamble contains ten paragraphs of the recitals on which the declaration is based . In addition to the background described above, express reference is made in particular to the Charter of the United Nations and the Universal Declaration of Human Rights . The Martens Clause is quoted.

Intended area of ​​application

Against the background described above, the Turku Declaration is based on the idea of ​​establishing a situation-independent and universal validity of certain minimum humanitarian standards. Accordingly, Article 1 requires a comprehensive material scope:

" This Declaration affirms minimum humanitarian standards which are applicable in all situations, including internal violence, disturbances, tensions, and public emergency, and which cannot be derogated from under any circumstances. These standards must be respected whether or not a state of emergency has been proclaimed. "

In German, for example:

“ This declaration affirms minimum humanitarian standards that are applicable in all situations, including internal violence, civil unrest, tension and public emergencies, and which must not be deviated from under any circumstances. These standards must be respected regardless of whether a state of public emergency has been declared. "

The standards contained in the declaration should therefore be fully applicable in every conceivable situation. The situations listed are to be understood as examples in which experience has shown that the required minimum standards are particularly often disregarded. The second sentence takes into account the fact that the declaration of a national emergency in most legal systems leads by law to the restriction of human rights. The second sentence demands that the minimum humanitarian standards must be excluded.

According to Article 2 of the declaration, the personal scope of application should be just as comprehensive :

" These standards shall be respected by, and applied to all persons, groups and authorities, irrespective of their legal status and without any adverse discrimination. "

In German, for example:

“ These standards are intended to be respected and applied to every person, group or authority, regardless of their legal status and without any hostile discrimination. "

As in Article 1, the first part postulates unrestricted validity, while the second part enumerates circumstances that are particularly common in conflict situations as to why certain human rights or humanitarian standards should not be applicable to certain, especially hostile persons or groups . According to Article 2, it would not matter whether state or non-state actors act or are treated. For example, a dictatorial regime would be obliged to treat captured resistance fighters (who are usually considered terrorists or criminals under national law ) in the current conflict situation and despite their involvement in it according to minimum humanitarian standards. Conversely, the resistance group would also have to treat supporters of this regime or any competing groups according to these standards. Because by disregarding the legal status, non-state armed groups would also be bound by the (hypothetical, declaration-based) international treaty.

An international treaty corresponding to the Turku Declaration would therefore oblige every person, group or authority in every conceivable situation, in particular those listed in Article 1, to comply with the minimum humanitarian standards and thus give at least limited international legal subjectivity . It would therefore have a considerably wider scope than current international humanitarian law.

Rights and obligations

The Turku Declaration describes various rights and obligations as minimum humanitarian standards that are taken from various human rights treaties and the Geneva Conventions (at a glance):

Article 3

Article 4

  • Obligation to place prisoners in registered prison camps
  • Duty to provide relatives and legal counsel with accurate information on detention, whereabouts or transfers
  • Prisoners' right to communicate with the outside world, particularly with legal counsel
  • Right to effective legal protection and other rights in captivity, in particular habeas corpus
  • Right to humane treatment and adequate care

Article 5

  • Prohibition of attacking people who are not actively participating in combat
  • Proportionality of the use of force
  • Prohibition of the use of weapons the use of which is prohibited in armed conflict

Article 6

  • Prohibition of the use or threat of violence, primarily for the purpose of spreading fear and terror ( terrorism )

Article 7

  • Prohibition of resettlement / displacement if this is not necessary for compelling security reasons or the security of the persons concerned
  • Duty to relocate with care
  • Right to freedom of movement in the rest of the territory of the state
  • Right of return as soon as circumstances permit
  • Ban on exile outside the territory of the state

Article 8

in addition to the right to life and the prohibition of genocide in human rights treaties and international humanitarian law :

  • Duty to impose the death penalty only for the most serious crimes
  • Prohibition of the execution of the death penalty on pregnant women, mothers of young children and children who were not yet 18 years old at the time of the crime

Article 9

Article 10

  • Children's right to adequate protection
  • Ban on the recruitment of child soldiers under 15 years and allowing participation in violence
  • Duty to prevent minors from participating in violence as much as possible

Article 11

Article 12

  • Duty to protect and treat the wounded and sick appropriately, as quickly as possible and without discrimination

Article 13

  • Duty to search for the wounded, sick and missing
  • Duty to search, and the respectful burial of the dead

Article 14

  • Duty to respect, protect and support the medical and pastoral staff
  • Prohibition of the obligation to perform activities that are incompatible with their humanitarian tasks
  • Prohibition of punishment for medical activities that dictate medical ethics , regardless of the person who benefits from them

Article 15

Article 16

Legal interactions

The last two articles deal with possible interactions or conflicts with other legal provisions that could arise in the application of the declaration. Article 17 clarifies in this regard:

" The observance of these standards shall not affect the legal status of any authorities, groups, or persons involved in situations of internal violence, disturbances, tensions or public emergency. "

In German something like:

“ Compliance with these standards does not affect the legal status of any agency, group or person involved in situations of internal violence, civil unrest, tension or public emergency. "

The provision is based on the last paragraph of common Article 3 of the Geneva Conventions. It is also to be understood as a concession to the respective de iure regime in the affected state (i.e. that which is state-supporting when the situation arises and which is considered to be the legitimate authority of the state): when the Geneva Conventions came into being, the negotiating states fears that the application of the minimum standards set out in joint Article 3 could collide with their national law to suppress and combat violent uprisings on their territory and possibly undermine it. Article 17 is intended to address this concern about the Turku Declaration from the outset in order to increase the likelihood of its adoption.

Finally, Article 18 contains provisions on potential conflicts with rights and standards from other legal sources:

" 1. Nothing in the present standards shall be interpreted as restricting or impairing the provisions of any international humanitarian or human rights instrument.

2. No restriction upon or derogation from any of the fundamental rights of human beings recognized or existing in any country by virtue of law, treaties, regulations, custom, or principles of humanity shall be admitted on the pretext that the present standards do not recognize such rights or that they recognize them to a lesser extent. "

In German something like:

“ 1. Provisions of international humanitarian law or international human rights treaties are not restricted or impaired by these standards.

2. Restrictions or deviations from fundamental human rights that are recognized or exist in a country on the basis of its law, treaties, ordinances, custom or principles of humanity, are inadmissible on the pretext that the present standards would not or only to a lesser extent these rights Recognize dimensions. "

The clause is thus intended to prevent conflicts with other standards stemming from all conceivable legal sources by excluding their impairment by the declaration (paragraph 1) or prohibiting the use of the declaration as a pretext for restrictions on higher standards (paragraph 2).

Authors

As early as 1987, an expert conference at the Norwegian Institute for Human Rights had adopted the Oslo Statement on Norms and Procedures in Time of Public Emergency or Internal Violence . The then director of the institute, Asbjørn Eide , then, together with Theodor Meron and Allan Rosas, provided the basic preparatory work for the Turku Declaration. In addition to those named as the main authors of the Turku Declaration, the human rights institutes of the Nordic countries , the International Committee of the Red Cross (ICRC) and Amnesty International are named as contributors.

reception

International non-governmental organizations

Amnesty International

Amnesty International experts, who were involved in the process of drafting the declaration, expressed concerns that an agreement within the meaning of the declaration could lead to the dilution of existing (i.e. also higher) standards.

International Committee of the Red Cross

During the process of drafting the declaration, the ICRC issued critical assessments, in particular to the effect that there could be conflicts between mandates based on international humanitarian law and those based on human rights.

Notwithstanding this, the ICRC made a significant contribution to the dissemination of the declaration, for example in the context of consultations by the United Nations and various contributions to ICRC publications that include the declaration.

Intergovernmental Organizations

Organization for Security and Cooperation in Europe

Even within the CSCE , the governments of the Nordic countries had pushed for an international agreement on minimum humanitarian standards to be adopted. The concrete effects of this can be seen above all in the document of the Moscow meeting of the Conference on the Human Dimension of the CSCE in 1991, in which the states - in part verbatim with the preamble of the Turku Declaration - advocated more comprehensive protection of human rights at national level Known state of emergency as required by human rights treaties to which they were party.

At the CSCE summit in Budapest in 1994, the birth conference of the OSCE , the adoption of an agreement on minimum humanitarian standards was finally called for.

United Nations

Within the UN, too, it was primarily the OSCE states that sought to force the resolution of an agreement on minimum humanitarian standards. Since 1994, direct or indirect reference has been made to the Turku Declaration in numerous conferences of various UN bodies, as well as in studies by the General Secretariat. However, decisive steps towards the implementation of a corresponding agreement have not yet been achieved, which is why the likelihood that a treaty corresponding to the declaration could be concluded within the framework of the UN is largely assessed with skepticism.

In deciding on a request of the defense in the trial of the Bosnian - Serb war criminal Dusko Tadic has International Criminal Tribunal for the Former Yugoslavia referred to the Declaration of Turku. The co-author of the declaration and later President of the Tribunal, Theodor Meron, had not yet been appointed to the Tribunal at the time.

science

In international law, the Turku Declaration has met with both approval and criticism:

From the point of view of the Australian international lawyer Emily Crawford, an agreement corresponding to the declaration is unlikely to come about within the framework of the UN, since the declaration has been discussed within the UN for more than twenty years without any significant progress being made towards a draft agreement be. In view of today's changed global security situation and the associated problems, it is necessary to find adequate legal answers to the latter, and therefore every approach to improving individual protection in internal conflicts is generally worth supporting. However, the legal loophole in which situations of internal use of force fall is due to the lack of applicability and enforceability of international humanitarian law and the protection of human rights under international law, rather than a lack of humanitarian standards, which is why solutions should be sought in the further development of existing regulations.
The emeritus international law professor Knut Ipsen from Germany describes the declaration as an " important step " in the development of the complementarity theory in international humanitarian law. According to this, the protective regimes of human rights generally protected under international law and of international humanitarian law specially tailored to armed conflicts can complement each other in non-international and internal conflict situations, although, according to the dogmatics of international law, there are two separate protective regimes. In this respect, the German lawyer Sigrid Mehring - in connection with the treatment of the wounded in conflict situations - comes to the conclusion that the conclusion and implementation of an agreement in accordance with the declaration in international humanitarian law could create the basis for a human right to medical treatment for the wounded, whereby they themselves also shows skepticism whether such an agreement will come about.
Similar to Ipsen, the British professor Louise Doswald-Beck , who works in Switzerland , and the French lawyer Sylvain Vité see the declaration as an example of private initiatives towards a convergence of international human rights protection and humanitarian law.
The Iranian international law professor Djamchid Momtaz includes the declaration in considerations on how to protect people's rights in situations of internal violence, but emphasizes that in such situations violence and violations of basic human rights are perpetrated not only by state but also by non-state actors would. A solution to this can be hoped for from the work of the International Criminal Court .
Martin Scheinin , Finnish professor of international law, sees the strength of the declaration primarily in its brevity: regardless of the conclusion of a corresponding agreement at the intergovernmental level, the declaration is an " educational tool, a short guide to basic standards of humanity" in a concise format identify the core norms of humanitarian law and human rights. In this function, the declaration could be used as the basis for training and engaging armed groups and other non-state actors, whereby it should be clarified to what extent the elaboration at state level could lead to acceptance by non-state actors.

literature

  • Emily Crawford : Road to Nowhere? The Future for a Declaration on Fundamental Standards of Humanity ( available online at SSRN - last accessed December 10, 2015).
  • Louise Doswald-Beck / Sylvain Vité : International Humanitarian Law and Human Rights Law, in: International Review of the Red Cross, No. 293 (1993) ( online - last accessed December 16, 2015)
  • Hans-Joachim Heintze : Theories on the relationship between human rights and humanitarian international law, in: Humanitäres Völkerrecht - Informationsschriften, Volume 1 (2011), Berlin / Bochum 2011, p. 4 ff. ( Online - last accessed on December 10, 2015).
  • Knut Ipsen : Areas of application and basic structure of the law of armed conflict, in: ders., Völkerrecht, 6th edition Munich 2014, § 59.
  • Theodor Meron / Allan Rosas : A Declaration of Minimum Humanitarian Standards, in: American Journal of International Law, Volume 85 (1991), p. 375 ff.
  • Djamchid Momtaz : The minimum humanitarian rules applicable in periods of internal tension and strife, in: International Review of the Red Cross, No. 324 (1998) ( online - last accessed on December 16, 2015).
  • Martin Scheinin : Turku / Åbo Declaration of Minimum Humanitarian Standards, in: International Council on Human Rights Policy / International Commission of Jurists (ed.), Standard-setting: Lessons learned for the future (workshop), Geneva 2005, p. 2 ( online - last accessed on December 10, 2015).

In addition, the Åbo Akademi's Institute for Human Rights has a selection of publications that refer to the declaration.

See also

Web links

Individual evidence

  1. ↑ Article 1, paragraph 4 of the first and Article 1, paragraph 1 of the second additional protocol specify and expand the term "armed conflict" .
  2. ↑ C. Fröhlich / M. Johannsen / B. Schoch / A. Heinemann-Grüder / J. Hippler , in: dies., Friedensgutachten 2010, Munich 2010, p. 15 f.
  3. ↑ K. Ipsen , in: ders., Völkerrecht, 6th edition Munich 2014, § 59 Rn. 21st
  4. ↑ So in Germany z. B. in the event of tension or defense , cf. Article 12a paragraphs 2 to 6 and Article 115c paragraph 2 GG, as well as the federal laws passed on this basis
  5. ^ ICRC, Commentary of 1952 to the 1949 Geneva Conventions, Art. 3 ( online - last accessed December 18, 2015).
  6. ↑ M. Scheinin , in: International Council on Human Rights Policy / International Commission of Jurists (ed.), Standard-setting: Lessons learned for the future (workshop), Geneva 2005, p. 2 (online - last accessed on 10. December 2015).
  7. ↑ M. Scheinin , in: International Council on Human Rights Policy / International Commission of Jurists (ed.), Standard-setting: Lessons learned for the future (workshop), Geneva 2005, p. 3 (online - last accessed on 10. December 2015).
  8. ↑ M. Scheinin , in: International Council on Human Rights Policy / International Commission of Jurists (ed.), Standard-setting: Lessons learned for the future (workshop), Geneva 2005, p. 3 (online - last accessed on 10. December 2015).
  9. ↑ UN, Minimum humanitarian standards Analytical report of the Secretary-General submitted pursuant to the Commission on Human Rights resolution 1997/21, paragraph 10 ( (online) - last accessed on December 10, 2015).
  10. ↑ Cf. e.g. D. Momtaz , The minimum humanitarian rules applicable in periods of internal tension and strife, in: International Review of the Red Cross, No. 324 (1998) ( online - last accessed on December 16, 2015); L. Doswald-Beck / S. Vité , International Humanitarian Law and Human Rights Law, in: International Review of the Red Cross, No. 293 (1993) ( online - last accessed December 16, 2015).
  11. ↑ CSCE, Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, Moscow 1991, paragraph 28.7 ( online - last accessed on 17 December 2015)
  12. ↑ Observations of Switzerland, Report of the Sub-Commission on prevention of discrimination and protection of minorities, UN doc. E / CN.4 / 1997/77 / Add.1, 28 January 1997, S 2 ( online - last accessed on December 17, 2015)
  13. ↑ D. Momtaz , The minimum humanitarian rules applicable in periods of internal tension and strife, in: International Review of the Red Cross, No. 324 (1998) ( online - last accessed on December 16, 2015).
  14. ↑ See the list of relevant UN documents on the website of the Institute for Human Rights of the Åbo Akademi, [1] .
  15. ↑ See below under "Science"
  16. ^ ICTY, The Prosecutor v. Tadic, Decision of October 2, 1995, Case No. IT-94-1-AR-72, paragraph 116 ( online - last accessed on 15 December 2015)
  17. ↑ http://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.short_biography&personid=20122
  18. ^ E. Crawford , Road to Nowhere? The Future for a Declaration on Fundamental Standards of Humanity, pp. 23 ff., 31 f. ( online - last accessed on December 10, 2015)
  19. ^ E. Crawford , Road to Nowhere? The Future for a Declaration on Fundamental Standards of Humanity, p. 28 ff. ( Online - last accessed on December 10, 2015)
  20. ↑ K. Ipsen , in: ders., Völkerrecht, 6th edition Munich 2014, § 58 Rn. 19th
  21. ↑ H.-J. Heintze , in: Humanitarian International Law - Information Papers, Volume 1 (2011), Berlin / Bochum 2011, pp. 4 ff., 7.
  22. ^ S. Mehring , First Do No Harm: Medical Ethics in International Humanitarian Law, Leiden 2015, p. 243 f.
  23. ↑ L. Doswald-Beck / S. Vité , International Humanitarian Law and Human Rights Law, in: International Review of the Red Cross, No. 293 (1993) ( online - last accessed December 16, 2015).
  24. ↑ D. Momtaz , The minimum humanitarian rules applicable in periods of internal tension and strife, in: International Review of the Red Cross, No. 324 (1998) ( online - last accessed on December 16, 2015).
  25. ↑ M. Scheinin , in: International Council on Human Rights Policy / International Commission of Jurists (ed.), Standard-setting: Lessons learned for the future (workshop), Geneva 2005, p. 4 (online - last accessed on 10. December 2015).
  26. ↑ M. Scheinin , in: International Council on Human Rights Policy / International Commission of Jurists (ed.), Standard-setting: Lessons learned for the future (workshop), Geneva 2005, p. 5 (online - last accessed on 10. December 2015).