Rights under Common Article 3 as well as Customary International Humanitarian Law

Sample Solution

       

Common Article 3 and Customary International Humanitarian Law (IHL)

Common Article 3:

• What it is: Common Article 3 is a fundamental provision found in all four Geneva Conventions of 1949. It applies to armed conflicts not of an international character (often referred to as non-international armed conflicts or NIACs). These are prolonged armed conflicts between government forces and dissident armed groups or between such groups themselves.

Full Answer Section

       

• What it stands for: Common Article 3 guarantees minimum protection for people who are not taking an active part in the hostilities, including civilians, wounded, sick, and shipwrecked people. It outlines the following protections:
  • Prohibition of violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture
  • Prohibition of taking of hostages
  • Prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment
  • Prohibition of the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are recognized as indispensable by civilized peoples.

Application to Terrorist Attacks and Criminal Actions: Common Article 3 generally does not apply to terrorist attacks and other criminal actions against a nation state. This is because it's designed for situations of armed conflict, not criminal acts by individuals or small groups. However, there can be some overlap in situations where a terrorist group controls territory and engages in a sustained armed conflict with government forces. In such cases, Common Article 3 might offer some protections to civilians caught in the middle. Relation to Due Process and Human Rights: Common Article 3 shares some similarities with due process rights and human rights:

• Due Process: Both Common Article 3's prohibition of arbitrary executions and the right to a fair trial under due process are fundamental principles aimed at preventing abuse of power.
• Human Rights: Common Article 3 overlaps with certain human rights enshrined in international law, such as the right to life, freedom from torture, and fair trial guarantees. However, human rights law generally applies in peacetime as well as wartime, while Common Article 3 is specific to armed conflict.

Indefinite Detention to Prevent Future Acts of Terrorism The author likely refers to the practice of some countries detaining individuals suspected of terrorism without charge or trial for extended periods. This is often justified on grounds of national security and preventing future terrorist attacks. Issues and Concerns:

• Due Process Violations: Indefinite detention raises concerns about due process rights. Detainees are denied the right to a fair trial and the opportunity to defend themselves.
• Erosion of Trust: Such practices can erode public trust in the justice system and create a sense of injustice.
• Potential for Abuse: The lack of judicial oversight creates a risk of arbitrary detention and torture.
• Effectiveness: The effectiveness of indefinite detention in preventing terrorism is debatable. Some argue it deters potential attackers, while others believe it breeds resentment and fuels radicalization.

My Opinion: The balance between national security and individual rights is a complex issue. While protecting citizens from terrorism is crucial, it shouldn't come at the expense of fundamental legal principles. Perhaps stricter criteria for detention, shorter detention periods with regular review, and robust oversight mechanisms could be explored to strike a better balance. Additionally, prioritizing rehabilitation and addressing root causes of terrorism might be more effective in preventing future attacks than indefinite detention.