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THE RELATION BETWEEN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW
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THE RELATION BETWEEN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL
HUMAN RIGHTS LAW
AUTHORED BY
- HARSHITA JAIN[1]
ABSTRACT
International humanitarian law and
international human rights law are the part of International law. International
law is the law which governs the relations of states inter-se, with
international bodies, and to some extent with citizens, as stated by Oppenheim.[2]
Since the two are the branches of International law, they are by some, confused
as the same thing and by some others, are regarded as so distinct as having no
connection. Both of these two extreme notions cannot be regarded as true.
International humanitarian law (IHL) and international human rights law (IHRL)
are different from each other in their definition, development, scope of
application and their implementation. On one hand IHRL is a series of rights
and on other hand IHRL is a series of duties that combatants have to obey. This
distinction, however, does not mean that they function in a four cornered wall
without getting influenced by each other. This Article aims to bring fourth the
similarities and differences between these two branches of International Law
and thereby analyse the relation between them.
Keywords: International, Human Rights,
Humanitarian, Relation
INTRODUCTION
International Law is the law
consisting of rules and principles governing the relations between the Nations.
It aims to protect and promote the human rights in the world and maintain
international peace and security. It has two major branches, International
Human Rights Law, which aims to protect and promote human rights in the world
and ensures that International peace is not hampered by an armed conflict.
International Humanitarian Law, on the other hand, provide a set of rules which
seek to limit the effects of armed conflict, if it occurs in between two or
more nations. These two branches are considered as different, however, they are
also dependent on each other. The lawyers of human rights continuously turn to
humanitarian law to interpret its provisions. Similarly a lot of provisions of
humanitarian law are influenced by the human rights law. Thus these two
branches of international law may be different from each other, yet they
complement each other for a better functioning.
DIFFERENCES
IHRL seeks to regulate the
relationship of the government to its population in order to spur the
government to do what is necessary to ensure the safety and well-being of its
population while allowing the population to pursue their desires unencumbered
by unwarranted government intrusion. IHL, on the other hand is more limited in
its scope. It applies only during armed conflict and seeks to regulate the
means and methods of warfare and protects those who are not or no longer
directly participating in hostilities. 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, whether
civilians, detainees, the wounded, the sick, or those otherwise hors de combat.[3]
The difference between IHRL and IHL would be better understood if one
considered that the first is a system based on rights, whereas the second
should be viewed as a system based on obligations.[4]
Following are the differences between the two laws:
Definition:
IHL: International humanitarian law
is a set of rules which seek to limit the effects of armed conflict. Generally
it applies to the time of armed conflicts. IHL does not see to stop or prohibit
war, but it sets out rules to regulate the war and mitigate the sufferings of
the war victims and others involved. It protects persons who are not or are no
longer participating in the hostilities and restricts the means and methods of
warfare. It is also known as the law of war or the law of armed conflict.
IHRL: International
human rights law is the body of
international law designed to promote human rights on social, regional, and
domestic levels.
Scope
IHL: IHL primarily mentions the
agreements between states on how to conduct war, and on protection of enemy
civilians and combatants.
IHRL: IHRL extends to the agreements
between states regulating the relationship between each state and the
individuals over whom it has jurisdiction.
Development
IHL: The evolution of International
Humanitarian law dates back to Battle of Solferino in 1859, when Henery Dunant
saw the sufferings of 1000s of soldiers. This marked a formal beginning of the
Modern IHL, as Henery Dunant called for an international agreement for the
treatment of the battlefield causalities. Since then with the codification of
first Geneva Convention in 1864 began the formal codification of IHL. Later in
1906 and 1929 two more Geneva Conventions were adopted, and all these were
revised in 1949 with the adoption of a fourth Geneva Convention.[5]
All these 4 Geneva Convention in addition to the three Additional Protocols
adopted in 1977 and 2005, are together known as IHL.
IHRL: Human rights law is a more
recent body of law, which came to be officially recognized after the World War
II, with the establishment of United Nations. Nevertheless the Human Rights
Principles have always prevailed, and its roots could be traced to the time
immemorial. But its formal recognition came later in years with the adoption of
UN Charter and UDHR 1948.[6]
And it was only in 1966 when the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights,
were adopted. Thus the UDHR, ICCPR and ICESCR are together known as Human
Rights Instruments.
Applicability
IHL: IHL applies primarily in the
times of armed conflict. The application and scope of IHL is so strict that the
state parties can in no circumstance derogate from the provisions of it, nor do
they have the right of reservations under IHL.[7]
IHRL: IHRL applies at all times, i.e.
in peacetime and during armed conflict. Human rights treaties permit
governments to derogate from certain obligations during public emergencies that
threaten the life of the nation. Derogation must, however, be necessary and
proportional to the crisis, must not be introduced on a discriminatory basis
and must not contravene other rules of international law – including provisions
of IHL. However few of the international human rights principles which have
acquired the status of Jus Cogens like, the right to life, the prohibition
against torture or cruel, inhuman or degrading treatment or punishment, the
prohibition against slavery and servitude and the prohibition against
retroactive criminal laws, can never be derogated.[8]
Right holders and duty bearers:
IHL: Under IHL, States and
individuals are both the right holders and the duty bearers.
IHRL: Under IHRL the duty bearers are
the States and the rights holders are the Individuals and the states.
Personal scope of application
IHL: IHL aims to protect persons who
are not or are no longer taking direct part in hostilities. It protects civilians
and hors de combat, such as the wounded, the sick and the shipwrecked or
prisoners of war.
IHRL: Human rights law applies to all
persons within the jurisdiction of a State. Unlike IHL, it does not distinguish
between combatants and civilians nor does it provide for categories of
'protected person'.
Implementation mechanism:
IHL: Rome Statute adopted on 17 July
1998 and came into force on 1 July 2002, establishes a permanent International
Criminal Court (ICC). The court has the jurisdiction to try cases relating to
four offences: War crimes, Crimes against Humanity, Genocide and Crimes of
Aggression. This court has the complementary jurisdiction to try the breach of
IHL. Apart from ICC, there are other courts also which have been specifically
established to deal with particular cases of violation of humanitarian
principles or the principles laid down under IHL, such as International
Criminal tribunal for Rwanda, International Criminal Tribunal for Yugoslavia,
Nuremberg tribunal or the Tokyo tribunal.[9]
IHRL: Human Rights Violations are
addressed by the International HR courts such as the International Court of
Justice, or by the Security Council itself. Apart from the Courts, every treaty
has a monitoring body which regulates the state party report and make
recommendations to the state parties in a manner that these states fulfil the
obligations undertaken by them in the treaty.[10]
SIMILARITY
Despite a number of differences
between IHL and IHRL, they are complementary bodies of international law that
share some of the same aims. Both IHL and IHRL strive to protect the
lives, health and dignity of individuals, thus they may be very
different in formulation but in essence they seek to work towards a common
goal. Many of the rules of these two
bodies of law are similar, for example, both IHL and IHRL prohibits
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.[11]
There are a number of provisions and instances which prove
that IHL and IHRL are complementary to each other, and the two do not work in
isolation, which are as follows:
Co-application
The applicability of IHRL is neither
stayed, nor rejected, even during an armed conflict. It gives certain human
rights, and since human rights are possessed by people by virtue of being
human, they always possess them, without regard to armed conflict or the time
peace. The application of Human rights was considered necessary for the first
time in Tehran Conference of 1968. In this conference, the Secretary General of
UN adopted a resolution to examine the development of humanitarian law and to
consider steps to be taken to promote its respect.[12]
Thus, this conference brought the IHL and IHRL more close. But in case of
conflict between a rule of IHL and a rule of IHRL, the concept of Lex
Specialis, i.e. law governing a specific subject matter would apply.[13]
Common Goal –
Humanity[14]
The main objective with which UN was established was to
promote humanity. Thus the main aim of IHRL is to foster the principle of
humanity, aimed at protecting human life and dignity. Similarly IHL also seeks
to protect the principle of humanity which is aimed at protecting human life
and dignity, as gathered from the Martens Clause and Art. 1(2) of AP I.
Common provisions
a) Non-Discrimination: The fundamental rule of IHL is guarantee
of Human rights without discrimination, as specifically provided not only in
United Nations Charter but also in all human rights treaties. Similarly IHL is
based on the premise that the protection accorded to victims of war must be
without any discrimination, as mentioned under Article 27[15]
of the Fourth Geneva Convention of 1949.
b) Slavery: IHL imposes a complete ban on slavery and recognizes
it as a customary right. Similarly IHL prohibits slavery under Additional
Protocol II.[16]
As far as the prohibition of slavery is concerned, this is explicitly laid down
in 1977 Protocol II.
c) Children and Women: The protection of children and family
life is importance in humanitarian law. It is taken into account in a number of
different ways, such as the provision made for children's education and
physical care, the separation of children from adults if interned (unless they
are members of the same family), and special provisions for children who are
orphaned or separated from their families.[17]
Similarly IHRL provides for similar guarantees.
d) Common Article 3: IHRL seeks to prohibit torture or cruel
treatment through Convention against Torture (CAT), prescribes basic rights for
persons subject to a criminal justice process (Art. 14, ICCPR), regulates
aspects of the right to food and health, etc. All of these provisions are also
found in IHL under Common Art. 3 to the 1949 GCs, humanitarian assistance, etc.[18]
Preamble to
Additional Protocol I to Geneva Conventions
The Preamble to AP I states, “Recalling that every State has
the duty, in conformity with the Charter of the United Nations, to refrain in
its international relations from the threat or use of force against the
sovereignty, territorial integrity or political independence of any State, or
in any other manner inconsistent with the purposes of the United Nations.” The
preamble through this statement recognize the importance of UN Charter i.e.
IHRL. It provides that UN Charter prohibits the state parties to use force
against another state, which is the most essential principle of IHL.
Preamble to
Additional Protocol II to Geneva Conventions
Preamble to AP II states, “Recalling that every State has the
duty, in conformity with the Charter…. inconsistent with the purposes of the
United Nation”
Also “Recalling that, in cases not covered by the law in
force, the human person remains under the protection of the principles of
humanity and the dictates of the public conscience”
Preamble to AP II repeats the statement of Preamble to AP I,
and in addition it recognizes another principle which states that in cases
where there is no law, a person shall be given the protection of humanity i.e.
basic principles of human rights shall always be applied in all circumstances,
especially in the absence of an express law in force.
Dual Provisions
Certain treaties today include provisions from both bodies of
law. For example, Convention on the Rights of the Child under Art 38[19]
and through its Optional Protocol on the Participation of Children in Armed
Conflict seeks to protect both IHL and IHRL. Also Article 1 of The Convention
on the Prevention and Punishment of the Crime of Genocide provides “The
Contracting Parties confirm that genocide, whether committed in time of peace
or in time of war, is a crime under international law which they undertake to
prevent and to punish.”
Thus, many of the treaties forming part of IHRL recognize
principles of both the bodies of law i.e. IHL and IHRL.
Referral and
deferral powers of Security Council
Article 13(b) provides the power to Security Council to refer
cases to ICC (International Criminal Court). And similarly Article 16 of the
Rome Statute vests the Security Council with the power to defer any case,
pending before ICC, for a period of 12 months, with an objective that the
Security Council may conduct an independent investigation on it. Thus the Rome
Statute also reserves a role for the United Nations Security Council. The
Council can refer situations in which one or more crimes which the ICC is
empowered to try, appears to have been committed in any State, under Chapter
VII of the Charter of the United Nations, regardless of whether such a state
has ratified the Statute of the Court or not. The main reason for such referral
and deferral powers of Security Council is that the Council has been given the
primary responsibility for maintaining peace and security in the world.
Similarly ICC is operating to maintain peace in the world and to ensure that no
crimes against humanity or crimes of aggression, war crimes or genocide takes
place in the world. Thus Security Council has been given this power of
referral, which it has used in number of cases like in case of Sudan (Darfur)
in 2005, and in Libya in 2011[20],
but has never used its deferral power, which again protects the autonomy of the
ICC. Thus the international organization working under the name these two
different bodies of law, are helping each other in maintaining peace in the
world.
Judicial decisions
There are a number of decisions given by a number of
international judicial bodies, wherein they have stated the existence of a
relation between IHL and IHRL. Some of those cases are as follows:
The European Court of Human Rights in the present
case stated the importance of Human rights in Armed Conflict, by providing that
“in the planning and execution even of a lawful action against fighters, any
risk to life and the use of lethal force must be minimized.”[22]
B. Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory Case (advisory Opinion).[23]
The international court of Justice in July 2004
explained the relation of IHL and IHRL in its advisory opinion given in the
present case. The court said that with regard to the relationship between
international humanitarian law and human rights law, there are three possible
situations: some rights may be exclusively matters of international
humanitarian law; others may be exclusively matters of human rights law; yet
others may be matters of both these branches of international law. thus the
court specifically stated that some of the matters overlap both the branches of
law and hence the two branches have certain relation.
International Criminal Tribunal for former
Yugoslavia on 22 February 2001, in the present case explained the relation of
IHRL and IHl as follows, “Because of the paucity of precedent in the field of
international humanitarian law, the Tribunal has, on many occasions, had
recourse to instruments and practices developed in the field of human rights
law. Because of their resemblance, in terms of goals, values and terminology,
such recourse is generally a welcome and needed assistance to determine the
content of customary international law in the field of humanitarian law. With
regard to certain of its aspects, international humanitarian law can be said to
have fused with human rights law.”[25]
Thus ICTY explains that precedents of IHRL help in
the development of IHL principles. Also it clearly states that the bodies of
law have similar goals, values and terminology.
The Inter-American Commission of Human Rights, on
29th September 1999, in the present case explained the relation of
the two bodies of law, by stating that though international humanitarian law
pertains primarily in times of war and the international law of human rights
applies in times of peace, but the potential application of one does not
necessarily exclude or displace the other. There is an integral linkage between
the law of human rights and humanitarian law because they share a common
nucleus of non-derogable rights and a common purpose of protecting human life
and dignity, and there may be a substantial overlap in the application of these
bodies of law.[27]
Thus, the above similarities show that IHL and IHRL are
branches of complementary branches of international law.
CONCLUSION
In general sense, IHRL is perceived
and understood as a branch of law which seeks to ensure human rights to all and
seeks to prohibit war, except on certain circumstances in which humanitarian
intervention is allowed. On the other hand IHL is understood as that branch
which seeks to regulate war, but it is now less perceived as a code of honour
for combatants than as a means of sparing non-combatants as much as possible
from the horrors of war.
IHRL and IHL are different in their
language, scope, development, application and implementation. But both are
complementary to each other and cannot function in complete isolation to each
other. Human rights are the same in international and non-international armed
conflicts and outside armed conflicts. We cannot in any sense dissect the two
branches so much that we tend to identify them moving in opposite directions. A
number of similarities, mentioned before, show us how these two different
branches of international law are complementing each other. Both of these
branches are continuously influencing each other. One cannot understand a
particular branch in isolation to the other. Since, the two carry similar
rights and similar provisions, interpretation of provisions of one branch have
to be done in light of the provisions of other branch. Moreover, since both,
IHL and IHRL, are branches of international law, it is clear that certain of
the basic notions of the two are same. For example, both tend to protect the
right to life, right against torture, right to non-discrimination. In other words,
the customary human rights are specifically protected by the humanitarian law.
The aim of international human rights
law is to promote and secure peace and security in the world. Similarly, the
goal of International humanitarian law is also to mitigate the sufferings of
the war victims and to regulate the wars in such a manner that the peace and
security of the states and the world is not harmed in such a manner that the
concepts of peace and security are not vanished and also in a manner which does
not open the doors for a World War III. The two branches, in essence have
similar, if not same, goals. Thus, the two cannot function in isolation, rather
they complement each other.
[1] Author is an Assistant Professor, IILM Law
School, IILM University, Gurugram, India.
[2]
Mark W. Janis, “The New Oppenheim and its theory of International Law”
16 (2) Oxf J. Leg Stud 329 (1996).
[3] Understanding Core Differences
between Human Rights and International Humanitarian Law in Armed Conflict, available at: http://www.hpcrresearch.org/blog/dustin-lewis/2012-04-17/understanding-core-differences-between-human-rights-and-international-h (last visited on April 28, 2023).
[4] On the relationship between IHL
and IHRL ‘where it matters’ once more: Assessing the position of the European
Court of Human Rights after Hassan and Jaloud, available at: http://www.qil-qdi.org/on-the-relationship-between-ihl-and-ihrl-where-it-matters-once-more-assessing-the-position-of-the-european-court-of-human-rights-after-hassan-and-jaloud/
(last visited on April 28, 2023).
[5] Development of modern
international humanitarian law, available
at: https://www.icrc.org/eng/who-we-are/history/since-1945/history-ihl/overview-development-modern-international-humanitarian-law.htm (last visited on April 29, 2023).
[6] The Foundation of International
Human Rights Law, available at: http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html (last visited on April 29, 2023).).
[7] International Humanitarian Law and
Human Rights: Similarities and Differences, available
at: http://www.gsdrc.org/document-library/international-humanitarian-law-and-human-rights-similarities-and-differences/ (last visited on April 29, 2023).
[8] Ibid.
[9] Implementing International
Humanitarian Law: from Law to Action available at: https://www.icrc.org/en/download/file/5450/implementing_ihl.pdf
(last visited on May 01, 2023).
[10] Effective
implementation of international human rights instruments, available at: http://www.ohchr.org/EN/HRBodies/Pages/DocumentsSystem.aspx, (last visited on
April 28, 2023).
[11] What is the difference between IHL
and human rights law, available at: https://www.icrc.org/en/document/what-difference-between-ihl-and-human-rights-law (last visited on April 15, 2023).
[12] Louise Doswald-Beck and Sylvain
Vite, “International Humanitarian Law and Human Rights Law” 33 IRCC 94 (1993).
[13] Ibid.
[14] Jacques Meurant, “Humanitarian Law
and Human Rights Law — Alike yet Distinct” 33 IRCC 89 (1993).
[15] Fourth Geneva Convention, Art 27:
“All
protected persons shall be treated with the same consideration by the Party to
the conflict in whose power they are, without any adverse distinction based, in
particular, on race, religion or political opinion".
[16] Additional Protocol II to four
Geneva Conventions, Art 4 (2) (f).
[17] Denise Plattner, “Protection of
Children in International Humanitarian Law” 24 IRRC 140, (1984).
[18] Marco Sasso`li* and Laura M.
Olson,“The relationship between international humanitarian and human rights law
where it matters: admissible killing and internment of fighters in
non-international armed conflicts” 90 IRRC 599 (2008).
[19] Convention on the Rights of the
Child, Article 38 (1) States Parties undertake to respect and to ensure
respect for rules of international humanitarian law applicable to them in armed
conflicts which are relevant to the child.
(2) States Parties shall take all feasible measures to
ensure that persons who have not attained the age of fifteen years do not take
a direct part in hostilities.
(3) States Parties shall refrain from recruiting any
person who has not attained the age of fifteen years into their armed forces.
In recruiting among those persons who have attained the age of fifteen years
but who have not attained the age of eighteen years, States Parties shall
endeavour to give priority to those who are oldest.
(4) In accordance with their obligations under
international humanitarian law to protect the civilian population in armed
conflicts, States Parties shall take all feasible measures to ensure protection
and care of children who are affected by an armed conflict.
[20] The International Criminal Court
and the United Nations Security Council: Perceptions and Politics, available at: http://www.huffingtonpost.com/tiina-intelmann/icc-un-security-council_b_3334006.html (last visited on April 17, 2023).
[21]
Isayeva v. Russia, 57950/00, Council of Europe:
European Court of Human Rights, 24 February 2005.
[22] Isayeva v. Russia, 57950/00, Council of Europe: European Court of
Human Rights, 24 February 2005, Para 175.
[23] Advisory Opinion Concerning Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, International Court of Justice
(ICJ), 9 July 2004.
[24] Prosecutor v. Dragoljub
Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment), IT-96-23 &
IT-96-23/1-A, International Criminal Tribunal for the former Yugoslavia (ICTY),
12 June 2002.
[25] Ibid at para 467.
[26] Coard et Al. v. United States,
Report N. 109/99 - Case 10.951, Inter-American Commission on Human Rights
(IACHR), 29 September 1999.
[27] Ibid at para 39.
Article Information
THE RELATION BETWEEN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW
Authors: HARSHITA JAIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/15
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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