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The Relationship of International Humanitarian law with
International human Rights Law; Difference and its
implementation.
By Nasir Qadri (B.A LLB Hon’s /LLM IHL)
1.1 Introduction:-
Human rights law is a set of international rules, established by treaty or custom, on
the basis of which individuals and groups can expect and/or claim certain rights
that must be respected and protected by their States. The body of international
human rights standards also contains numerous non-treaty-based principles and
guidelines.
The main treaties of human rights law are given below:
a) Universal instruments
Convention on the Prevention and Punishment of the Crime of Genocide (1948)
Convention on the Elimination of All Forms of Racial Discrimination (1965)
International Covenant on Civil and Political Rights (1966)
International Covenant on Economic, Social and Cultural Rights (1966)
Convention on the Elimination of All Forms of Discrimination against Women
(1979)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1984)
Convention on the Rights of the Child (1989)
International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families (1999)
International Convention for the Protection of All Persons from
Enforced Disappearance (2006)
Convention on the Rights of Persons with Disabilities (2006)
b) Regional instruments
European Convention on Human Rights (1950)
American Convention on Human Rights (1969)
African Charter on Human and Peoples' Rights (1981).
These treaties are supervised by human rights bodies, such as the Human Rights
Committee for the International Covenant on Civil and Political Rights and the
European Court for Human Rights for the European Convention on Human Rights.
While IHL and human rights law have developed in their separate ways, some
human rights treaties include provisions that come from IHL: for instance, the
Convention on the Rights of the Child and its Optional Protocol on the
involvement of children in armed conflict, and the Convention on Enforced
Disappearance.
IHL is a set of international rules, established by treaty or custom which are
specially intended to solve humanitarian problems directly arising from
international and non-international armed conflicts. It protect persons and property
that are, or may be affected by an armed conflict and the limits the right of the
parties to a conflict and limits the rights of the parties to a conflict to use methods
and means of warfare of their choice. IHL main treaty source applicable in the
armed conflict are four; Geneva Convention of 1949, Additional protocol I of
1977. The main treaty sources applicable in the non-international armed conflict
are Article 3 common to the Geneva Conventions and Additional Protocol II of
1977
Both IHL and human rights law strive to protect the lives, the health and the
dignity of individuals, albeit from different angles – which is why, while very
different in formulation, the essence of some of the rules is similar. For example,
both IHL and human rights law prohibit torture or cruel treatment, prescribe basic
rights for persons subject to criminal process, prohibit discrimination, contain
provisions for the protection of women and children, and regulate aspects of the
right to food and health. There are however important differences between them:
their origins, the scope of their application, the bodies that implement them, and so
on.
1.2 Origins
IHL, the origins of which are ancient, was codified in the second half of the 19th
century, under the influence of Henry Dunant, the founding father of the
International Committee of the Red Cross. Human rights law is a more recent body
of law: it had its origins in certain national human rights declarations influenced by
the ideas of the Enlightenment (such as the United States Declaration of
Independence in 1776 and the French Declaration of the Rights of Man and of the
Citizen in 1789). It was only after the Second World War that human rights law
emerged, under the auspices of the United Nations, as a branch of international
law. The Universal Declaration of Human Rights of 1948 first defined human
rights law at the international level in a non-binding General Assembly
resolution. It was only in 1966 that this Declaration was translated into
universal human rights treaties: the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights, both of 1966.
1.3 Scope of Application:
International human rights law (IHRL) and International humanitarian law (IHL)
are traditionally two distinct branches of law. While the first deals with the inherent
rights of the person to be protected at all times against abusive power, the other
regulates the conduct of parties to an armed conflict. The two however, can be said
to be legally synonymous as they strive to protect the lives, health and dignity of
individuals, from different angles.1 The duty to implement both IHL and IHR lies
with states and as IHL obliges States to take practical and legal measures, such as
enacting penal legislation and disseminating IHL similarly, under IHRL states are
bound by law to accord national law with international obligations.2
IHRL is a system of international norms designed to protect and promote the
human rights of all persons. These rights which are inherent in all human beings
without discrimination are often expressed and guaranteed by international law.3
IHRL further lays down the obligations of states to act in certain ways or to refrain
from certain acts, in order to promote and protect the human rights and
fundamental freedoms of individuals or groups whereas IHL is a set of rules which
seek, for humanitarian reasons, to limit the effects of armed conflict.4 It protects
persons who are not or are no longer participating in the hostilities, and restricts the
means and methods of warfare. Its scope is, therefore, limited to situations of
armed conflict. For IHL, the existence of a situation amounting to an armed
conflict is necessary to trigger its applicability.5
In addition, IHL is the law on how force may be used, meaning it creates a level
playing field which has to be distinguished from IHRL the law on the legitimacy of
the use of force which recognizes human rights and condones war. IHL does not
concern itself with the legality of the war but deals with how it is fought and has to
be applied equally by all sides to every armed conflict. This equality between the
belligerents also crucially distinguishes an armed conflict, to which international
humanitarian law applies, from a crime, to which only criminal law and the rules
of human rights law on law enforcement apply.6
At its core, IHRL is a bit broad in application as it seeks to regulate the relationship
of the government to its population and obliges the government to do what is
necessary to ensure the safety and well-being of its people whereas IHL is more
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limited, applying only during armed conflict and seeking to inject a modicum of
humanity into wartime by regulating the means and methods of warfare and
protecting those not directly participating in hostilities.7 In other ways it can be
said that while IHRL has a fundamental mission of transforming the relationship
between the government and the population, IHL aims primarily to limit the effects
of hostilities on populations, be it detainees or civilians.
According to Droege,8 one of the major differences is that the substantive
protection a person benefits under IHL depends on the category that person
belongs to, while under the IHRL benefits apply to all. The protection of civilians
is not the same as the protection of combatants and such distinction is important in
application of IHL.9 Combatants may be attacked until they surrender or are
otherwise hors de combat, while civilians may not be targeted, unless they directly
participate in hostilities, hence are protected by the principles of proportionality
and precaution against the incidental effects of attacks against military objectives
and combatants.10 From such it is evident that IHL weighs the humanitarian
interests of the population against the interests of parties to armed conflict
attempting to achieve their military objectives.
1.4 Case Law’s on IHL & IHRL
The International Court of Justice considered the relationship between IHL and
IHRL in its Nuclear Weapons Advisory Opinion in 1996 and concluded that while
IHRL did apply in times of armed conflict, when it came to the prohibition of
arbitrarily taking human life in Article 6 of ICCPR,11 the content of that prohibition
had to be found in the lex specialis of IHL. The ICJ admitted that the protection of
the ICCPR does not cease in times of war, except by operation of Article 4 of the
Covenant whereby certain provisions may be derogated from in a time of national
emergency but the rules embodied in IHL impose duties on all parties to a conflict
and do not permit derogations because it was conceived for emergency situations.
The court further confirmed the complementarity of the two in Democratic
Republic of the Congo v. Uganda12 where it concluded that both branches would
have to be taken into consideration and in the case, international human rights
instruments were found to be applicable in respect of acts done by a State in the
exercise of its jurisdiction outside its own territory.
Human rights laws protect physical integrity and human dignity in all
circumstances. They apply to relationships between unequal parties, protecting the
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governed from their governments. Under human rights law, no one may be
deprived of life except in pursuance of a judgment by a competent court.13 It also
regulates aspects of a struggle for life and death between contestants who operate
on the basis of formal equality. IHL has a narrow, technical vision of legality, as
long as the rules of the game are observed, it is permissible to cause suffering,
deprivation of freedom, and death.14
While IHL and IHRL have different historical and doctrinal roots, both share the
aim of protecting all persons and are grounded in the principles of respect for the
life, well-being and human dignity of the person and such was accepted in
Prosecutor v. Anto Furundzija15 where the Trial Chamber of the ICT for the former
Yugoslavia emphasized that the general principle of respect for human dignity was
the “basic underpinning” of both human rights law and international humanitarian
law.
1.5 System of implementation
a) National level:
The duty to implement both IHL and IHRL lies first and foremost with states.
States have a duty to take a number of legal and practical measures – both in
Peacetime and in armed conflict situations – aimed at ensuring full compliance
with IHL, including:
translating IHL treaties;
preventing and punishing war
crimes, through the enactment of
penal legislation;
protecting the red cross and red crescent emblems;
applying fundamental and judicial guarantees;
disseminating IHL;
Training personnel qualified in IHL and appointing legal advisers to the
armed forces.
IHRL also contains provisions obliging states to implement its rules, whether
immediately or progressively. They must adopt a variety of legislative,
administrative, judicial and other measures that may be necessary to give effect to
the rights provided for in the treaties. This may include enacting criminal
legislation to outlaw and repress acts prohibited under IHRL treaties, or providing
for a remedy before domestic courts for violations of specific rights and ensuring
that the remedy is effective.
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b) International level:
As regards international implementation, states have a collective responsibility
under article 1 common to the Geneva Conventions to respect and to ensure
respect for the Conventions in all circumstances. The supervisory system also
comprises the Protecting Power mechanism, the enquiry procedure and the
International Fact-Finding Commission envisaged in Article 90 of Protocol I.
States parties to Protocol I also undertake to act in cooperation with the United
Nations in situations of serious violations of Protocol I or of the Geneva
Conventions. The ICRC is a key component of the system, by virtue of the
mandate entrusted to it under the Geneva Conventions, their Additional Protocols
and the Statutes of the International Red Cross and Red Crescent Movement. It
ensures protection and assistance to victims of war, encourages states to implement
their IHL obligations and promotes and develops IHL. ICRC's right of initiative
allows it to offer its services or to undertake any action which it deems necessary
to ensure the faithful application of IHL. The IHRL supervisory system consists
of bodies established either by the United Nations Charter or by the main IHRL
treaties. The principal UN Charter-based organ is the UN Commission on Human
Rights and its Sub-Commission on the Promotion and Protection of Human Rights.
"Special procedures" have also been developed by the Commission over the last
two decades, i.e. thematic or country specific special rapporteurs, and working
groups entrusted with monitoring and reporting on the human rights situations
within their mandates. Six of the main IHRL treaties also provide for the
establishment of committees of independent experts charged with monitoring their
implementation. A key role is played by the Office of the High Commissioner for
Human Rights which has primary responsibility for the overall protection and
promotion of human rights. The Office aims to enhance the effectiveness of the
UN's human rights machinery, to increase UN system-wide implementation and
coordination of human rights, to build national, regional and international capacity
to promote and protect human rights and to disseminate human rights texts and
information.
c) Regional level
The work of regional human rights courts and commissions established under the
main regional human rights treaties in Europe, the Americas and Africa is a distinct
feature of IHRL, with no equivalent in IHL. Regional human rights mechanisms
are, however, increasingly examining violations of IHL. The European Court of
Human Rights is the center piece of the European system of human rights
protection under the 1950 European Convention. The main regional supervisory
bodies in the Americas are the Inter-American Commission on Human Rights and
the Inter-American Court of Human Rights. The African Commission on Human
and Peoples' Rights is the supervisory body established under the 1981 African
Charter. A treaty establishing an African human rights court has not yet come into
force.16
1.6 Conclusion
When comparing norms of international human rights law and international
humanitarian law, it becomes apparent that the latter protects only some human
rights and only to the extent that they are particularly endangered by armed
conflicts, and is not, as such, incompatible with the very existence of an armed
conflict. Thus, the right to social security, the right to free elections, freedom of
thought or the right to self-determination are not covered by international
humanitarian law,17 and in a number of situations, its rules could be, on the limited
issues they deal with, more adapted to the specific problems arising in armed
conflicts.
Conclusively, IHL is traditionally formulated in terms of objective rules of conduct
for States and armed groups, while IHRL is expressed in terms of subjective rights
of the individual in relation to the state and developed as a part of the constitutional
law of individual states. In addition, while the rules of IHL on the treatment of
persons who are in the power of the enemy may be understood as implementing
their human rights, taking military necessity and the peculiarities of armed
conflicts into account, certain rules on the conduct of hostilities deal with issues
not addressed by IHRL hence the two concepts complement each other and should
be construed with relation to the other.
16 www.icrc.org www.icrc.org/eng/assets/files/other/ihl_and_ihrl.pdf
17 3 Meron “The humanization of humanitarian law” (2000) 239 American Journal of International Law 239.
References.
1) C Droege “Interplay between International Humanitarian Law and
International Human Rights Law in Situations of Armed Conflict” (2007) 40
Israel Law Review 310.
2) David Harris et al International Human Rights Law (2010).
3) D Schindler “Human Rights and Humanitarian Law: Interrelationships of the
laws” (1981). Am. UL Rev., 31, 935.
4) S Chesterman Just war or just peace? Humanitarian intervention and
International law (2001) Oxford University Press: New York.
5) T Meron “The humanization of humanitarian law” (2000) 239 American
Journal of International Law 239.
6) R Wilde “Triggering State Obligations Extraterritorially: The Spatial Test in
Certain Human Rights Treaties” (2007) 40(2) Israel Law Review 503.
7) Icrc.org official website.
The Author is research scholar in International Islamic University Islamabad
He can be reached at qadri.nasir@gmail.com
06th may 2018.