6
17.
The primacy of the principle of respect for the dignity of the human being is
identified as the purpose of both law and the legal system at the national and the
international level. By virtue of this fundamental principle, all individuals must be
respected (both their honor and their beliefs), based on the mere fact of belonging to
the human race, irrespective of any other circumstance.23 The principle of the
inalienability of the rights inherent in the human being is, in turn, identified with a
basic premise of the development of the whole corpus juris of international human
rights law.
18.
In relation to the principles of international humanitarian law, it has been
argued with persuasion that, instead of trying to identify provisions of the 1949
Geneva Conventions or the 1977 Additional Protocols that could be considered to
express general principles, it would be preferable to consider these conventions and
other humanitarian law treaties as a whole, as constituting the expression – and the
development – of those general principles, applicable under any circumstances, so as
to better ensure the protection of the victims.24
19.
In the Mucic et allii case (Judgment of February 20, 2001), the International
Criminal Tribunal for the Former Yugoslavia (Appeals Chamber) considered that both
international humanitarian law and international human rights law are founded on
their common concern for safeguarding human dignity, which forms the basis for
their minimum standards of humanity (para. 149). Indeed, the principle of humanity
may be understood in different ways. First, it can be conceived as an underlying
principle of the prohibition of inhuman treatment established in Article 3 common to
the four 1949 Geneva Conventions.
20.
Second, this principle may be invoked referring to humanity as a whole, in
relation to matters of common, general and direct interest to the latter. And, third,
the same principle may be used to quality a specific quality of humaneness. In the
Celebici case (Judgment of November 16, 1998), the said International Criminal
Tribunal for the Former Yugoslavia (Trial Chamber), described inhuman treatment as
an intentional or deliberate act or omission, which caused “serious mental or physical
suffering or damage,” or constituted a “serious attack on human dignity” (para.
543). And added that:
"inhuman treatment is intentional treatment which does not
conform with the fundamental principle of humanity, and forms the
umbrella under which the remainder of the listed ‘grave breaches’ in the
Conventions fall" (para. 543).
Subsequently, in the T. Blaskic case (Judgment of March 3, 2000), the same Tribunal
(Trial Chamber) reiterated this position (para. 154).
21.
We should not forget the celebrated Martens clause, which was originally
inserted in the preambles to the 1899 Hague Convention (II) (para. 9) and the 1907
Hague Convention (IV) (para. 8), both relating to the laws and customs of war on
land. Its purpose was to juridically extend protection to civilians and combatants in
23
B. Maurer, Le principe de respect de la dignité humaine et la Convention Européenne des Droits
de l'Homme, Paris, CERIC/Univ. d'Aix-Marseille, 1999, p. 18.
24
R. Abi-Saab, "Les ‘principes généraux’ du Droit humanitaire selon la Cour Internationale de
Justice", 766 Revue internationale de la Croix-Rouge (1987) pp. 386 and 389.
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