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Nr 1-2 (83-84) (1985)
Artykuły

Prawo humanitarne (genewskie) a prawa człowieka

[Humanitarian (Geneva) law and human rights, Outline of the problem]

  • Piotr Daranowski

Opublikowane 1985-04-30

Słowa kluczowe

  • prawa człowieka,
  • prawo humanitarne,
  • human rights,
  • humanitarian law
Creative Commons License

Utwór dostępny jest na licencji Creative Commons Uznanie autorstwa 4.0 Międzynarodowe.

Jak cytować

Prawo humanitarne (genewskie) a prawa człowieka: [Humanitarian (Geneva) law and human rights, Outline of the problem]. (1985). Studia Prawnicze The Legal Studies, 1-2 (83-84), 113-141. https://doi.org/10.37232/sp.1985.1-2.5

Abstrakt

The problem indicated in the title of the article arises from the clauses included in general systems of protection of human rights (i.a. in art 4 of the Pact of Civic and Political Rights) which forbid to suspend elementary human rights (right to life, physical, psychic and moral integrality, right to legal security) irrespective of the situation, thus also in case of an armed conflict which was traditionally regulated by humanitarian (Geneva) law.

Tendencies to amend Geneva conventions of l949 showed, La. that the system of protection of human rights may support and value changes which should take place in the Geneva law. Since then the science of international law has been interested in the problem of relations between human rights and humanitarian (Geneva) law and the position of both domains in the system of international law.

The work attempts to describe circumstances causing the problem, contro­versies, and suggested arguments explaining mutual relations of both domains and, finally, the conclusions. 

Summing them up, we can say that:

  1. Amended in 1977 the Geneva law in art 75 (also in art. art. 76 and 77) of the Additional Protocol I and in art. art. 4 and 6 (also in art. 5) of the Additional Protocol II has been based on analogous to conventions on human rights concept of protection of elementary rights of human person.
  2. Both above mentioned Protocols confirm, like the clauses of the conven­tion on human rights prohibiting the suspension of elementary human rights, a supracontractual character of those rules.
  3. The amendments to Geneva law indirectly and directly confirm the pre­sence in the armed conflict parallel to the system of protection of victims of a conflict provided for by Geneva conventions of the system of protection provided for by the conventions on human rights. Art. art. 75, 76 and 77 of the Additional Protocol I and art. art. 4,5 and 6 of the Additional Protocol II directly confirm it, specifying the material scope of protection of elementary human rights most certainly required in armed conflicts, thus also in situations when ,,...public danger impends over the existence of the nation". (art. 4 of the Pact of Civic and Political rights). It is directly confirmed by art. 72 of the Additional Protocol I and the preamble to Additional Protocol II.

The existence of two parallel systems of protection of victims of armed conflicts in the sphere of elementary rights does not affect the necessity to im­prove the mechanisms of control of observance of those rights, especially im­perfect as far as humanitarian (Geneva) law is concerned. On the other hand, there is no obstacle to, apart from the institution of Protecting Power and Inter­national Committee of Red Cross, acting of control mechanisms provided for by general systems of protection of human rights (mechanisms of reports, complaints, individual petitions) in the field of protection of elementary human rights in an armed conflict, both of an international and noninternational character.