THE past weeks' discussions on Iraq raised far-reaching questions about the relationship between human rights and humanitarian law, which the Commission would do well to begin addressing in a prompt and dedicated manner.

Whether in government statements to the Commission, NGO press releases, letters to the Chair, or coffee-powered conversations in the serpentine bar, discussions about how to address the humanitarian and human rights issues in Iraq betrayed a lack of understanding, or agreement, on fundamental terms of the debate, the institutions that might be implicated, and the sources of international standards that apply.

None of these problems are limited to the current situation in Iraq. They concern the legal and institutional framework of human rights and humanitarian law in general.

As leading international legal scholars have noted, humanitarian and human rights law have begun to merge. This transformation has significant implications for the lives of individuals in all sorts of armed conflicts and other humanitarian situations. But, only a small number of these issues have yet to be covered by the Commission.

What the Commission should do is create an Open-Ended Working Group to elaborate standards concerning the legal and institutional framework of human rights and humanitarian law. A number of areas require attention.

Law of armed conflict and human rights

The Commission already receives a report, from the Secretary-General, which touches on aspects of the relationship between human rights and humanitarian law. In 2002, the Commission asked the Secretary-General to submit his next report two years later; so the next report is due for the Commission's 60th Session. According to the Commission's Resolution, the next report should "consolidate and update previous reports and studies" and take into account the forthcoming study of the International Committee of the Red Cross on customary rules of international humanitarian law (HRC Res. 2002/12).

Currently titled, "Fundamental Standards of Humanity," the Secretary-General's report focuses on rights that are guaranteed "to everyone in all situations." In other words, the report essentially concerns rights and standards that apply regardless of the context -- whether in peacetime, a state of emergency, an international or non-international armed conflict. It thus considers only non-derogable human rights and the absolute minimum protections available in the law of armed conflict (e.g., Common Article 3 of the Geneva Conventions).

The report on the Fundamental Standards of Humanity is a start, but only a start, in the right direction.

First, the series of Secretary-General reports under this heading do not address issues such as refugees, internally displaced persons (IDPs), or the conflicting and complimentary mandates of humanitarian and human rights institutions.

Second, the reports do not address humanitarian or human rights protections beyond the base minimum that exists in all situations. That is, the reports do not consider standards from humanitarian law that can help elaborate the human rights protections when a state does not officially derogate from a convention. Nor do the reports discuss other issues in humanitarian law such as human dignity, and jurisprudence on lack of consent in the ICTY and ICTR, that could be applied to rape in custody outside of an armed conflict.

Third, the reports give attention, but not a sufficient amount, to some of the most pressing issues at the intersection of humanitarian and human rights law such as the right to a fair trial. Aside from explaining the Human Rights Committee's General Comment No. 29, the most recent report barely spends a paragraph on fair trial rights, with one reference to a decision by the Yugoslav Tribunal in the preceding year. The right to a fair trial is an important limitation on the "opt out" security clause in Article 5 of the Geneva Convention (IV) relative to the Protection of Civilian Persons. It is guaranteed under Common Article 3 of the Geneva Conventions, yet it is not explicitly included in the list of non-derogable rights under the ICCPR. A full examination of the contours of the right, derived from both international human rights and humanitarian law, is required.

ESC rights and humanitarian assistance

The discussions on Iraq implicitly raised questions concerning whether the Commission has the institutional competence to tackle certain issues directly relating to the law of armed conflict and other areas of humanitarian law.

To be sure, the Iraq issue also raised the question whether the Commission could hold a special sitting when the Security Council is seized of the same matter. More fundamentally, however, the discussions generated important questions about defining the scope of the Commission's activity on human rights and how that activity might address international humanitarian situations.

One area in which the Commission could and should elaborate standards is in the application of economic, social, and cultural rights in the sphere of humanitarian assistance. Gaps exist in understanding the obligations of national governments, foreign governments, non-State actors, and international organisations in providing for civilian populations in wartime and in other humanitarian emergencies. One conceptual gap concerns standards for fulfilling economic, social and cultural rights.

International human rights, of course, apply during wartime and peacetime. This maxim includes economic, social, and cultural rights as well. The Iraq situation points to general concerns about the duty to ensure that civilians' basic needs are met, including their right to health, shelter, and food.

A Working Group should study how benchmarks for ESC rights can be usefully elaborated in this context. Such issues also clearly demonstrate the competence and necessity of the Commission's involvement in such matters.

State, nonstate and international responsibility

Such an Open-Ended Working Group should also take up "secondary rules" concerning the responsibility and obligation of national and international actors in providing humanitarian assistance. In his report on "Strengthening the coordination of emergency humanitarian assistance of the United Nations," the Secretary-General states: "[T]here may be circumstances where States are unwilling or unable to meet their responsibilities. In such instances . . . it is the responsibility of all to assist humanitarian action to reach and protect the vulnerable sections of society" (A/57/77-E/2002/63). Similarly, in General Comment No. 12 (1999), the Committee on Economic, Social and Cultural Rights states: "States have a joint and individual responsibility, in accordance with the Charter of the United Nations, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons." Also, the new Special Rapporteur on the Right to Health, relying directly on the Committee on ESCR's General Comment No. 14 (2000), explains in his report that "States have a joint and individual responsibility to cooperate in providing disaster relief and humanitarian assistance, including medical aid and potable water, in times of emergency, including assistance to refugees and internally displaced persons" (E/CN.4/2003/58).

In application, these standards might accord international responsibility to states that refuse or obstruct humanitarian assistance to vulnerable populations in a dire circumstance. For example, consider Iraqi Ambassador Abbas Khalaf's recent statement that "I am authorized to state that we will not receive any humanitarian aid. We have money and all the necessary reserves at our disposal." Consider cases of governmental corruption in siphoning off humanitarian resources. And consider cases of governments that obstruct international humanitarian actors' reaching vulnerable populations (e.g., refusing to acknowledge or genuinely address HIV/AIDS).

Some of these standards should apply to both state and nonstate actors, especially in armed conflicts and other emergencies. For example, in General Comment No. 12 (2000), the Committee on ESCR states: "Violations of the right to food can occur through the direct action of States or other entities insufficiently regulated by States. These include … the prevention of access to humanitarian food aid in internal conflicts or other emergency situations."

Given the above, the level of state and nonstate responsibility in the "guiding principles" on humanitarian assistance, which are contained in the annex to General Assembly Resolution 46/182 (1991), now seem clearly outdated. It is high time the Commission elaborate the secondary rules of responsibility with a human rights perspective.

Human rights actors in "humanitarian space"

Before the end of the Cold War, aside from the ICRC, few international humanitarian organisations operated in the field in wars and violent conflicts. In recent years, the problem may be that too many actors operate and with ill-defined prerogatives and overlapping zones of activity. For example, this problem has manifested itself in contradictory messages on the availability of safe havens for IDPs.

According to a 2002 report by the Secretary-General, "a roughly estimated 20 to 25 million people have been displaced within their own countries because of violence and human rights abuses" (A/57/77-E/2002/63). In its section on IDPs, the report candidly acknowledges, "The involvement of too many humanitarian actors pushing different agendas based on their varying mandates can not only lead to confusion but, more seriously, to obstacles to reaching the vulnerable population and insecurity for humanitarian workers themselves." While offices within the Secretariat have been created to address such concerns, the inclusion of human rights organisations has been lacking.

The number of international organizations operating on the ground has been amplified by the advent of "human rights monitors" including special mechanisms of the Commission. The work of these actors is often urgently required. Thus, the solution is not the narrow-minded one of rescinding or reducing their mandates. On the contrary, Amnesty International's recent paper calling for the deployment of human rights monitors in Iraq shows the precedent and need for such actors to be engaged in the field. A Working Group could assess how to institutionalize and coordinate such initiatives.

Why an Open-Ended Working Group

The mechanism of an open-ended working group allows participation by NGOs. As the above discussion makes clear, adequately addressing these issues of human rights and humanitarian law requires the specialized knowledge and experience that a number of NGOs possess. In such deliberations, it seems obvious that the Commission should provide a forum that maximises the insights and knowledge of humanitarian aid societies and the field experience of national and international NGOs. The 59th Commission should accordingly vote to set up an inter-sessional open-ended working group on operationalising the legal and institutional framework of international human rights and humanitarian law in conflict and emergency situations.