Human Rights have its historical antecedents in a number of international legal doctrine and institutions. The most important of these are-Humanitarian intervention, Geneva convention, Mandate and Minority system of League of Nation, ILO, State responsibility for injury to aliens, international humanitarian law, Domestic origins, united core of law.
To an extent, all these doctrine are the integral part of Human right law. The international law of human rights is defined as “the law that deals with protection of individual and groups against violation by government their international guaranteed rights and with promotion of these rights.
(a) Human Rights and Traditional Law:
Traditional international law was defined as the law governing relation between nation and state exclusively. This meant that only states were subject of and has legal rights under international law. This traditional international law includes various intergovernmental organizations which have limited rights under international law. The state had any legal obligation relating to individual, they were deemed to obligation owed to the states whose nationality the individual possessed.
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International law is complex process of controlling decision operating across national and equal frontier to maintain world order. It creates enforcement structures both internal and external to nation state and it rely on the doctrines, rules to minimize interstate conflict and guarantee world order to separate territorial state.
The nature of international law compelled the conclusion that the manner in which states treated its own nationality was not regulated by international law. The subject matter is that individual was deemed to fall within the jurisdiction of state and too see that the nationals of state should not be maltreated.
As the law did not apply to human rights violation committed by state against individual having its own nationality. Thus, there is governing relation between Human Rights and Traditional International Law.
(b) Geneva Conventions and Protocols:
The first Geneva Convention is held in 1864 for the victim of armed conflicts. This is effort to interject the minimum humanitarianism into inhumane situation. The Geneva Convention embodied the central principle was that the individual soldiers was entitled to least a minimum respect for his essence as person, to have minimum degree of humanitarianism- even in war, the greatest denial of humanitarianism.
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This treaty embodied the central principle that the medical personnel should be regarded as neutral so they could treat sick and wounded soldier. All soldiers were entitled to basic respect as a person. It articulated a limit to national objectives even when the state saw its goals to important enough to merit violence: There was humanitarianism limit beyond which individual could not kill or could not order to kill for his state.
They consist Geneva convention for the “Amelioration of condition of the wounded and sick members of Armed Forces, ship and shipwrecked members of Armed forces, Geneva convention for the Amelioration of condition of wounded, Geneva convention relative to protection of civilian person in time of war, and Geneva convention relative to prisoners of war.
Geneva Convention considered as “customary international law” for all the states that are not parties to these instruments. Article 2 of these treaties declares that “the present convention shall apply to all cases of declared war or any other armed conflict which may arises between two or more contracting parties, even if the state of war is not recognized by one of them.”
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Article 13 of these treaties- the Geneva convention on Prisoner of war be treated “humanely” and they not subjected “to physical or mental torture to secure from them information to kind and provide that all prisoner of war be treated alike by detaining power, without any discrimination on basis of caste, color, creeds, etc.
The Fourth Geneva Convention seeks to protect civilian population and all soldiers. Under this fourth convention, perform various functions for protecting prisoners of war camp, civilian population. Article 3 also makes protection of soldiers in war and prohibits the following acts-
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostage;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatments;
(d) Passing of sentences and carrying out of executions without previous judgment pronounced by regularly constituted court, affording all judicial guarantees which are recognized as indispensable by civilized people. Protocols additional to Geneva Convention were opened for signature in 1977. The two protocols of Geneva Convention relating to protection of victims of international and non-international armed conflicts.
Protocols I:
This protocol additional to Geneva Convention relating to protection of victims of International Armed conflicts. Article 1 (4) of Protocols make the instrument applicable to armed conflicts in which people are fighting against colonial domination and alien occupation and against racial regimes in the exercise of their right of self-determination, as enshrined in the Charter of United Nations and the Declaration on principles of International law concerning friendly relations and cooperation among states in accordance with charter of United Nations. Article 2 does not apply to international armed conflict and moreover, Article 3(a) of Protocols extends the coverage of four Geneva Convention to armed conflicts to which Protocol I applies.
Protocols I to be part of customary international law. Article 35 declares that “the rights of the parties to the conflict to choose methods or means of warfare are not unlimited.” Article 54 of the protocol outlaws “starvation of civilians as a method of warfare and bars military attacks on or destruction of “objects indispensable to survival of civilian population.”
Article 75 contains the most noteworthy innovation made in section 111 of Protocols. It declares the fundamental rights to which “persons in power of a party to the conflicts” are entitled in Article 3. Protocols I contemplates the establishment of 15 member international Fact Finding Commission. The commission functions are to investigate “gave breaches” of Convention and protocols and to ‘facilitate through its good offices, the restoration of an attitude of respect for the convention and these protocols.”
Protocol II:
This protocols relating to protection of victim of non-international armed conflict. It amplifies the guarantees set out in common article 3 and contains specific provisions designed to ensure human treatment of individual being detained “for reason related to Armed conflicts” (Article 5) and Article 6 proclaims a catalogue of due process provisions and guarantees that are applicable “to prosecution punishment of criminal offences related to armed conflicts.”
It also prohibits acts or threat of violence the primary purposes of which is spread terror among the civilian population. Protocol II has made no provision for protecting power and does not establish any measures of the implementation to ensure compliance with its provisions. In implementation and enforcement of Humanitarian Law Ramcharan said-“The role of enforcement bodies in implementation and enforcement of Humanitarian law and human rights law in Non-international Armed Conflicts.”
International Committee of Red Cross:
Red Cross was officially recognized in Geneva Convention of 1864. The group of Swiss citizens led by Henai Dunant who worked for the Geneva Convention of 1864 ultimately came to known as “International Committee of Red Cross”. This Committee is joined by the National Red Cross Societies.
It provided for the “Amelioration of wounded in war time”. The ICRC is private humanitarian institution incorporated under law of Switzerland. It is an entity of Swiss Government. International Committee of Red Cross has such international status that distinguishes it from other non-governmental human rights organization. Article 4 of Statues of ICRC includes the function the Geneva Conventions perform.
It played an important role in promoting the development, dissemination and teaching humanitarian law. Like non-governmental organization, ICRC does not obtain humanitarian treatment for prisoner of war. ICRC has plays an increasing important role in humanitarian assistance to political detainees in countries torn by civil strife. Red Cross attempts to protect human rights in armed conflicts and League of nation has made attempt to various attempt to protect the right of those held in slavery.
(c) Humanitarian Law:
This law implies the human rights component of law of war. It usually undertaken by Swiss in 19th century, who advocates the humanitarian law in conduct of war. These initiative produced the Geneva Convention of 1864 which was created for protection of right of soldiers and designed to protect medical personnel and provided that “wounded on sick combatant should be entitled to basic respect as person.
International Red Cross handbook updated by ICRC. This humanitarian law is much older than the Human right law and it comprise a vast body deals with protection of right of soldiers, wounded or sick combatant in armed conflicts.
Geneva Convention of 1949, two protocols relating to protection of victims in armed conflicts. T. Meron Human Rights and Humanitarian norms as customary law (1989) and Human Rights in Internal Strife: Their international protection 23 (1987). Modern Humanitarian law attempting to protection in war as well in peace time.
(d) Past and Modern Human Rights Law:
Traditional human right law developed various institution and doctrines for the protection of various groups of people-slave, sick or wounded complainant, minorities etc. The older institution continues exist side by side, to form inherent part of modern international law of human right. An awareness of historical roots of modern international law of human rights will give deeper understanding of that law. That law providing the development of contemporary international human rights law.
Modern human rights law different from historical antecedents in which today individual human being are to internationally guaranteed right as individual. There are now a growing number of international institution and jurisdiction to protect the right of individual against violation of these rights committed by state as well as other states. Many remedies are taken, still inadequate.
There are now many of international institution and human right law which produced a political climate in which there is protection of human rights has become one of the most important items on the agenda on contemporary international political discourses including NGO’s, intergovernmental organization and governments.
(e) League of Nation:
League of Nation was established in 1920 for maintaining international peace and security and to protect to the right of minorities. It served as its constitution, contained no provision dealing with human rights. Rights are basic freedom which is entitled to each and every person without any discrimination on the bases of caste, colour, sex, religion etc. The human rights primarily concerned-minority rights, refugee’s rights, labour rights. The covenant contains two provisions (Article 22 and 23) that bear the development of international human rights law.