The Impact of Human Rights Law on Armed Forces
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This book considers those aspects of human rights law which may become relevant to the activities of armed forces whether they remain in barracks, undertake training or are deployed in military operations within their own state or outside it. The unique nature of military service and of military courts gives rise to human rights issues in respect both of civilians and soldiers, whether volunteers or conscripts, who find themselves before these courts. Peter Rowe examines these issues as well as the application of international humanitarian law alongside the human rights obligations of the state when forces are training for and involved in armed conflict.
in the manner of the conduct of the armed conflict, despite the fact that they have used armed conflict as a method to replace the existing government. In doing so their chances of being accepted as the legitimate government of the State if they succeed will be greater than if they achieved this through largescale abuses of human rights. The same may be said of the secessionists who will wish to gain recognition as a separate State from other States as quickly as possible should they succeed in
armed conflicts and the relevant human rights instrument apply together. It is likely that some form of national emergency law will also be in place (at least where the armed conflict is other than of short duration) giving soldiers legal powers which they might not otherwise possess under the law.52 The role of human rights may be more important in a non-international armed conflict than in its international counterpart.53 For the reasons expressed above the likelihood of civilians being, or
soldier 11 with this approach is that the State is unlikely to be willing to ‘bargain’ with the potential recruit, who is left with the alternative of not joining the armed forces or joining on the terms that he gives up his right to a private life for the whole period of his military service, which could be a whole working lifetime. It is not surprising, therefore, to see the European Court of Human Rights in 1999 concluding that the mere fact of joining the armed forces with knowledge about
similar vein a State repatriating prisoners of war at the close of active hostilities may need to consider the reception to be accorded to them by their home State. It is accepted that, despite the mandatory language of Article 118 of the third Geneva Convention 1949, a State is under no legal obligation forcibly to repatriate prisoners of war.139 The State may have an independent obligation to consider whether there is a real risk of a prisoner of war being killed upon his repatriation. This can
instrument(s); secondly, where the sovereign State is a party to a human rights instrument but the occupying State is not; thirdly, where the occupying State is a party to a human rights treaty to which the sovereign State is not a party. 212 213 214 215 216 The 1950 Convention (Fourth Protocol 1963), Art. 3; the African Charter on Human and Peoples’ Rights 1981, Art. 12(5). Fourth Convention 1949, Art. 49. To do so is a grave breach of Additional Protocol I 1977, Art. 85(4)(a) and a war crime