I. The individual in international law
There are a number of differences between Western and Arab laws in relation to the status of the individual and the individual legal persona on the international level. This introduction does not allow for detailing these differences 2. We should only state here that the second half of the twentieth century saw significant progress in relation to the status of the individual and the individual's legal persona, particularly in the development achieved by the international community in terms of legalizing human rights and man's basic freedoms, and the adoption of international and regional mechanisms that protect these rights and enforce them, which allows for achieving direct and effective protection for the individual. It would take a lot of space to mention all the stages of this development, which manifested itself basically in stressing international law's protection of a bottom line of basic human rights. This protection includes all individuals under the authority of the state, whether they were its citizens or foreigners 3.
The most important aspect of legalizing the protection of human rights is, on the one hand, the adoption of a number of special international mechanisms related to complaints about human rights violations, and on the other, the adoption of a number of international and regional conventions for the protection of human rights, with special emphasis on the conventions which allowed an individual or a number of individuals to file complaints in case these conventions were violated.
1. Mechanisms on complaints of human hights violations
We shall review resolutions of the economic and social council 4 leaving aside the mechanisms adopted by committees, action groups and special rapporteurs 5.
a. Economic and social council resolution 1235 of June 6, 1967.
It is the resolution which allowed the human rights commission 6 the subcommittee on non-discrimination and protection of minorities 7 to look into information on serious human rights and basic freedoms violations, like the apartheid policy which used to be practiced by South Africa.
b. Economic and social council resolution 1503 of May 27, 1970.
This resolution allowed the subcommittee on non-discrimination and protection of minorities to set up a task force consisting of at most five people selected from its members, taking into account fair geographical distribution.
This resolution explained, in its first article, the mission of the task force charged with looking into complaints received by the UN Secretary General on serious and continuous violations of human rights and basic freedoms, and which come under the competence of the subcommittee. The committee's attention should be drawn to these complaints and to the countries' response to them 8.
2. International conventions on human rights
A number of these conventions were adopted during the second half of the twentieth century, the most important of which:
a. The international declaration on human rights of 1948
b. The international treaty on eliminating all forms of discrimination of 1965
Paragraph 1 of article 14 of this convention allowed the committee on the elimination of racial discrimination, created under article 8 of the convention, to "receive and examine complaints submitted by individuals or groups of individuals under the jurisdiction of a party state, who claim to be victims on any violation on its part of any of the rights established in this convention." Paragraph 9 of this Article stipulated the approval of 10 states for the committee to start receiving such letters and examining them. Article 14 came into force on December 3, 1982 9.
c. The international convention on econornic, social, and cultural rights of 1966
d. The international convention civil and political rights of 1966
e. The optional protocol annexed to the convention, which allows for the submission of individual complaints, of 1966
Article 1 of this optional protocol states that the committee on human rights, set up under article 28 of the international convention on civil and political rights, has the competence to "receive and examine complaints from individuals under the authority of that party state who claim that they are victims of its violations of any of the rights recognized in this convention 10.
f. Treaty on eliminating all forms of discrimination against women of 1979
g. The optional protocol annexed to the treaty on eliminating all forms of discrimination against women, which allows for the submission of individual complaints of 1999
Article 1 of this protocol allowed the committee on eliminating discrimination against women 11 to accept complaints stated in article 2 of this protocol and examine them.
Article 2 allowed individuals, groups of individuals, or their representatives, to submit complaints explaining that they are victims of a party state's violation of rights established by the treaty on eliminating all forms of discrimination against women of 1979.
h. Treaty combating torture and other forms of cruel, inhuman, or humiliating treatment of 1984
Paragraph 1 of article 22 of the treaty says that "any party state can declare at any time that it recognizes, according to this article, the competence of the committee to receive and examine complaints from individuals, or their representatives, under its competence, claiming that they are victims of violations of a party state of the provisions of this treaty. Paragraph 8 of the same article stipulates that five member states should accept the contents of paragraph 1 in order for the committee of combating torture, set up under article 17 of this treaty, to receive individual complaints and examine them. This approval might be withdrawn later 12.
i. The Treaty on children's rights of 1989
3. Regional conventions:
a. The European treaty on human rights of 1950
Protection of the individual, under the European Treaty on human rights, went through a number of stages, since it came into force on September 3, 1953.
In the early stages of the implementation of the European treaty on human rights, it was not possible for an individual, a group of individuals, or non-governmental organizations, to file a complaint at the European committee on human rights 13 unless the state complained about accepted the individual's right to file such a complaint, through a declaration it submits to the secretary general of the organization of the council of Europe 14, according to article 25 of this treaty 15.
An individual, a group of individuals, or non-governmental organizations, could not complain to the European court on human rights 16 until protocol 9 annexed to the European treaty on human rights came into force on October 1, 1994 17, when it became possible for them to resort to this court 18.
The new and important stage in the development of the European court on human rights arrived when protocol 11 annexed to this treaty, came into force on November 1, 1998 19. This development ended the role of the European committee on human rights, and the European court on human rights was charged, as the one single authority under the European treaty on human rights, with insuring that provisions of the treaty were respected and its mechanisms implemented. An individual, a group of individuals, or nongovernmental organizations could submit individual complaints, in application of article 34 of the European treaty on human rights 20.
What concerns us in this context is whether the European court on human rights could resort to the international humanitarian law to protect the individual? On the one hand, there is no legal impediment preventing the court from resorting to this law; and, on the other, the European court resorted, in its rulings, to a number of rules which we can say are derived from the provisions of international humanitarian law. This European court might very soon look into, cases that require direct implementation of the provisions of international humanitarian law, particularly in relations to victims of the war in Yugoslavia and the conflict in Chechnya 21.
b. The American treaty on human rights of 1969
What distinguishes the American treaty on human rights, in comparison with other international or regional treaties, is the opportunity given to the individual, a group of individuals, or any non-governmental organization to complain to the American committee on human rights, set up under article 34 of this treaty, in implementation of article 44 of this treaty, when any state party to the American treaty on human rights violates human rights. There is no need to present any special declaration, or ratify any annexed protocol, as is the case with the optional protocol annexed to the international convention on civil and political rights 22.
An individual, a group of individuals, non-governmental organizations, might resort to the American committee on human rights directly without obtaining their states' approval. It is enough for the states to have ratified the American treaty on human rights.
Concerning the rules of international humanitarian law, the American committee on human rights said that it could use provisions of the international humanitarian law to look into the complaints it receives. It also said that it is qualified to implement these provisions 23.
c. The African convention on human and peoples'rights of 1981
Article 55 of the African convention on human and peoples' rights states the following: "The committee's secretary draws a list before every session of the correspondence received from non-party states in this convention and presents it to the members of the committee authorized to review and examine them. The committee looks into the correspondence upon the request of the "absolute majority of its members".
African jurisprudence interpreted the phrase, "correspondence received from non-party members," to mean those submitted by individuals or non-governmental organizations.
The individual, according to this interpretation, complain against a state party to the African convention when the state violates its provisions. African jurisprudence referred in its interpretation to the African Committee Statues, particularly paragraph 1 of Article 103, which allows the committee as the complainant: to state his/her name, age, profession, and address 24. It also referred to paragraph 2 of article 114 of the African Committee Statues, which "accepts correspondence from any individual or organization wherever they were 25.
We have seen above, and based on paragraph 2 of article 114 of the African Committee Statues, that non-governmental organizations, and some people added liberation movements too 26, could present correspondence to the African Committee. But should these organizations be in a state member of the Organization of African Unity, and should the latter recognize that organization for it to be able present correspondence, and should the Organization of African Unity recognize these organizations for their correspondences to be accepted too 27?
d. The Arab convention on human rights of 1994
II. The importance of the provisions the international humanitarian law in insuring individuals'rights
The individual's protection was insured thanks to the provisions of international humanitarian law and the development they went through during the last century. Non-governmental organizations, particularly the International Committee of the Red Cross, played a role in achieving this protection.
1. Aspects of the historical development of protecting the individual
Among the aims of the international humanitarian law is of course protecting the individual 28. It was natural for the international humanitarian. law to protect the individual. We conclude this from articles 6 and 7 of the Geneva conventions of 1949. Article 6 says, "no special agreement will have a negative impact on the status of the injured and sick, or members of medical and religious services as identified in this treaty, or restrict the rights given them according to it. Article 7 stresses this protection and does not allow individuals to renounce it. "Injured and sick persons, and also members of medical and religious services cannot, under any condition, renounce, partly or fully, the rights given them according to this treaty or according to special treaties referred to in the previous article, when they exist".
Humanitarian protection of the individual, regardless of his/her nationality, went through a number of stages since the beginning of the twentieth century, when states agreed to reduce their sovereignty by accepting international monitoring of the implementation of the Geneva conventions, allowing neutral observers to visit their territories, and accepting a sanctions system that aims at an effective respect for "humanitarian. rules" 29.
The four Geneva conventions came then to crown exerted efforts in the field of humanitarian protection of the individual, particularly through article 3, which exists in all of them, which imposed on the states party to these conventions to respect in a humanitarian manner the persons who do not take part in a non-international dispute, without any discrimination. Annex 2 of 1977, annexed to the Geneva conventions came to fill the gaps in article 3.
Thanks to international humanitarian law and its development a direct protection of the individual was insured. The Geneva conventions charged states party to the conventions with the responsibility of providing this protection. These states became obliged towards the international community to respect the dignity of the individual and his/her right to life, physical safety, and not suffering torture or cruel or humiliating treatment.
Thus, provisions of international law and provisions of international humanitarian law crossed each other in their endeavor to protect "human beings" legalizing their basic rights 30.
2. The role of non-governmental organizations
We are not going to discuss in this intervention the rise of non-governmental organizations and their categories, classifications and targets 31. We should only state that they started in the nineteenth century and then developed extensively in the twentieth century. They are a western phenomenon in the first place. Developing countries, and Arab countries in particular, have not known the direct or indirect influence these organizations have had in Europe on national policies, and the different human, social, and cultural roles they have played throughout the twentieth century and are still playing at the beginning of this century.
We should highlight here the contents of article 71 of the United Nations Charter, which allowed non-governmental organizations to play their role in issues under the jurisdiction of the economic and social council. This article says that, "the economic and social council might make the appropriate arrangements to consult with non-governmental organizations concerned with issues under its jurisdiction. The council might conduct these consultations with international organizations or, if appropriate, with civil organizations after consulting with the concerned member United Nations.
The role of non-governmental organizations has grown in the field of humanitarian work, particularly in the last three decades of the twentieth century. The help offered by these organizations to victims of violations, famines, natural disasters, is steadily increasing in many continents.
This active and noble role or non-governmental organizations has given another dimension to international relations and introduced into them a new 'humanitarian' concept 32, which has become a characteristic of these relations. On the other hand, humanitarian work has affected the traditional concept of the international system and the network of international relations, which depended, and still depend in certain cases, on the sovereignty of the state and its absolute authority over its territories, and the principle of non-interference in internal affairs.
If we examine carefully the nature of international relations today, and the extent of their development in line with the development of economic, social and cultural conditions, particularly at the beginning of the third millennium, when planet earth turned into a 'village' whose inhabitants communicate via electronic mail, know of each other's news on satellite TV stations, and visit each other using fast and comfortable means of transport. If we examine the nature of relations among states, we find that problems affecting one state, like health problems and epidemics do not stop at borders and do not affect one particular people and spare another; or natural disasters resulting from the pollution of the environmental whose protection is the greatest challenge of this century, and which requires collective efforts in order to find the appropriate solutions. Once again, the work of non-governmental organizations plays a distinctive role in solving these problems, which gives its efforts a humanitarian touch and pushes international relations forward.
The concept of 'humanitarian intervention' has acquired a new dimension in the last quarter of the twentieth century, particularly when intervention happens upon the request of states which fall victims to natural disasters, epidemics and famines. The International Committee of the Red Cross played an important role in humanitarian intervention, side by side with international organizations like UNHCR, FAO, WHO, etc.
This new dimension has undergone a significant development that aims at avoiding the use of humanitarian aid for purposes other than the ones they were intended for, to be used for private gain, or to the benefit of on group to the exclusion of others in the disaster areas. The new development was to allow the media to play a part in humanitarian campaigns in explaining their targets and identifying the target groups, and excluding the groups which try to exploit them 33.
The role of the International Committee of the Red Cross was distinctive in this area, because of its impartiality and effectiveness, which allows it to interfere at the appropriate times and offer the necessary aid without clashing with states' refusal to allow it to carry out its humanitarian operations.
We might add to this humanitarian role of the International Committee of the Red Cross another role which it started to play throughout the second half of the twentieth century through contributing to the establishment of international peace and security which lie at the heart of international relations. This is done through preventing the use of weapons in disputes to avoid the consequent destruction and killing. It also tries, thanks to the provisions of international humanitarian law, to protect belligerents and non-belligerents in the case of disputes.
Conclusion
There is no doubt a strong link between human rights and provisions of international humanitarian law, when these provisions work collectively to protect individuals in peace and in war.
Perhaps we have answered the question we posed at the beginning of this intervention with the purpose of knowing whether provisions of international human law give individual rights similar to those of states through the development of this law in the second half of the twentieth century; that is recognizing the individual as one of the persons addressed by this law. This recognition coincided with the protection to individuals provided by a number of mechanisms and international and regional conventions which allowed individuals to question their states if they violate their rights. This protection, in turn, contributes to the development of the provisions of international humanitarian law, stressing that this law is as closely linked to individuals and their protection as it is to states. We should not ignore the role of non-governmental organizations, particularly the International Committee of the Red Cross in insuring this protection through its participation in humanitarian operations in different fields.
Notes
This article is published in International Humanitarian Law & International Relation, Symposium, Damascus 27-28 Octobre 2002, Damascus University, Faculty of Law, the International Committe of Red Cross, Al-Daoudi Printing Press, Damascus, July 2003, p. 78-92.
[1] President of the Arab Center for International Humanitarian Law and Human Rights Education, France.
[2] See Omar Ismail Saad Allah, Introduction to the International Law of Human Rights, University Press, Algeria, 1991, p. 131 and after.
[3] Izzeddin Fouda, "The Idea of Establishing an International Court for Human Rights in Light of the Individual's Role in International Law and before International Courts", Misr al-Mou'asira Magazine, No. 324, 1996, p. 152.
[4] See how this council was set up and its competence in our study, "International Mechanisms for the Protection of Human Rights", al-Bubuoth al-Qanounia wal Iqtisadia Magazine, a periodical published by the Faculty of Law, Bani Sweif University, January and July issue, 1994, p. 428 and after (Later Al-Midani, "Mechanisms").
[5] See these mechanisms in the former reference, p. 440 and after.
[6] See how this committee was set up and its competence in the former reference, p. 430 and after.
[7] See how this committee was set up and its competence in the former reference, p. 432 and after.
[8] See details of presenting individual complaints per this resolution in our article, "A Presentation of the Resolution of the Economic and Social Council # 1503 of May 27, 1970", Our Rights Magazine, issued by Human Rights Information & Training Center, Ta'ez, Yemen, No. 7, October, 2001, p. 13 and after.
[9] See details of presenting these complaints in our book, International and Regional Committees for the Protection of Human Rights, Cairo Centre for Human Rights Studies, Cairo, 2000, p. 13 and after.
[10] See details of presenting these complaints in the former reference, p. 19.
[11] See how this committee was set up and its competence in the former reference, p. 24 and after.
[12] See details of presenting these complaints in the former reference, p. 30.
[13] See how this European committee was set up and its competence and function in our article, "Regional Committees for the Protection of Human Rights, a Comparative Study", al-Majalla al-Arabia Lihukuk al-Insan, issued by the Arab Institute fo Human Rights, Tunis, No. 5, 1998, p. 58 and after.
[14] See how this council was set up and its activities in our book, The European System of Protecting Human Rights, Second Edition, published by Center de Documentation, d'Information et de Formation en Droits de l'Homme, Rabat, 2004, p. 23 and after. (later, Al-Midani, The European System).
[15] See the text of article 25 in our book, "Human Rights, Regional Documents" (translation with others), Second edition, Amman, 1992, p. 42-43 (Later, Al-Midani, Human Rights).
[16] See how this court was set up and its competence in Al-Midani, The European System, p. 77 and after.
[17] See the text of protocol 9 in Al-Midani, Human Rights, p. 74 and after.
[18] See details of this development in our article, "Developments to the European System of Human Rights", al-Muhamoun Magazine, published by the Syrian Bar Association, Damascus, nos. 3 & 4, March & April, 1995, p. 264 and after.
[19] See the second edition of our book, Human Rights, Regional Documents (translation with others), published by the Arab Institute for Human Rights, Tunis, 2001, p. 35 and after.
[20] Article 34 of the European treaty on human rights states the following. "Any natural person, non-governmental organization, or group of individuals who claim to be victims of violation of any contracting party of the rights recognized by the treaty and its protocols might resort to the court. Contracting parties pledge not to obstruct in any way the actual exercise of this right".
[21] See Francesco Bruscoli, "The Competence of the European Court of human Rights on International Human Law", International Institute of Human Rights, July 2000, p. 49.
[22] See details of how these complaints are presented in Al-Midani, "International Committees," p. 54 and after.
[23] See Bruscoli, p. 49.
[24] See Fasta Ouguergouz, La Charte africaine des droits de l'homme et des peuples. Une approche juridique des droits de l'homme et modernité; PUF, Paris, 1993, p. 317.
[25] Abdul Baset bin Hasan, "The African Committee on Human and Peoples rights", thesis for obtaining the degree of deep studies diploma in political science, Faculty of Law and Political Science in Tunis, Tunis University, 3rd 1995/1996, p.17.
[26] See our article, "Introducing the African Convention on Human and Peoples Rights," al-Muhamoun Magazine, published by the Syrian Bar Association, Damascus, nos. 7 & 8, July & August, 1998, p. 656.
[27] See Ouguerrgouz, op.cit., p. 317.
[28] Jean Picktet, International humanitarian Law, Its Development and Principles, Henry Unan Institute, Geneva, 1984, p. 97.
[29] Op.cit., p. 97.
[30] Ahmad Mihiou, "Legalizing International Law and the Protection of Human Personality in the International Community and the Rights of the Human Personality," Proceedings of a seminar held on November 7, 2000 on the anniversary of Idris al-Silawi, Abdul Aziz al-Saoud Institute for Islamic Studies and Humanities, Casa Blanca, first edition, 2000, p. 81.
[31] See, Sur Serge, Relation internationales, Paris, Montchrestien, 2 édition, 2000, pp. 365 et s.
[32] See Patricia Buirette, Le droit international humanitaire, Paris, La Découverte, 1996, p. 84.
[33] Op. cit., p. 89.
