What Is International Humanitarian Law and Human Rights

In the post-9-11 world, it is difficult to imagine how human rights and humanitarian law have ever been seen as bodies distinctly different from international law. From today`s perspective, the two legal bodies seem inextricably linked; Human rights organizations use them freely in a way that best suits the context. However, this has not always been the case. Amnesty International did not regularly use IHL in its appeals until the early 1990s, with the organization`s work focusing mainly on political prisoners imprisoned for non-violent expression of their faith. His work on broader issues (such as torture and enforced disappearances) was based on this prisoner-based approach. Ken Roth explains why Human Rights Watch began basing its case for humanitarian advocacy on humanitarian law in the early 1980s, and recounts conversations between Amnesty International and monitoring committees. When ethnic conflicts and low-intensity wars blurred the lines between conflict and peaceful conditions in the 1990s, AI and other human rights groups joined Human Rights Watch in referring to the norms of international humanitarian law. Today, human rights groups often take note of the conditions of occupation, the treatment of civilians, the conscription of children and the use of indiscriminate weapons when denouncing human rights violations. IHL and human rights law have common substantive rules (such as the prohibition of torture), but they also contain very different provisions. IHL addresses many issues that do not fall within the scope of human rights law, such as the status of “combatants” and “prisoners of war”, the protection of Red Cross and Red Crescent emblems and the legality of certain types of weapons.

Similarly, the Human Rights Act deals with aspects of life that are not governed by IHL, such as freedom of the press, the right of assembly, voting, strikes and other matters. In addition, some areas are subject to both IHL and human rights law, but in different – and sometimes contradictory – ways. This applies in particular to the use of force and imprisonment. OriginsIHL, whose origins 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. (See question 6.) The Human Rights Act is a more recent body of law: it has its origin in certain national declarations of human rights influenced by enlightenment ideas (such as the Declaration of Independence of the United States 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 standards emerged under the auspices of the United Nations as a branch of international law. The Universal Declaration of Human Rights of 1948 defined for the first time human rights standards at the international level in a non-binding resolution of the General Assembly. It was not until 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. (See box.) The provisions of international humanitarian law have influenced a number of human rights initiatives over the past two decades, including the establishment of an International Criminal Court (1998), a protocol to the Convention on the Rights of the Child to limit the active participation of children under the age of 18 in armed conflict (2000), a 2008 treaty banning cluster munitions and efforts to negotiate an arms trade treaty. (2013) and the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction (more informally known as the Landmine Treaty). Parties bound by IHL and human rights IHL binds all parties to an armed conflict, thereby establishing equal rights and obligations between the State and the non-governmental party for the benefit of all those who may be affected by its conduct (an essentially “horizontal” relationship). (See question 8.) Human rights law explicitly governs the relationship between a State and persons within its territory and/or subject to its jurisdiction (essentially a “vertical” relationship) and defines the obligations of States towards individuals through a wide range of conduct.

Thus, human rights standards are binding only on States, as evidenced by the fact that human rights treaties and other sources of human rights standards do not create legal obligations for non-State armed groups. The reason for this is that most such groups are not able to fulfil all the obligations under the Human Rights Act because, unlike Governments, they cannot fulfil the functions on which the implementation of human rights standards is based. There is a notable exception to this generalization about non-State armed groups: cases in which a group, usually due to stable control of territory, has the capacity to act as a State authority, and where its responsibility for human rights can therefore be recognized de facto. INTERACTION BETWEEN IHL AND HUMAN RIGHTS LAWThe interaction between IHL and human rights law continues to receive a great deal of legal attention, in particular because of its impact on the conduct of military operations. In its first-ever Declaration on the Application of Human Rights in Situations of Armed Conflict, the 1996 Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice stated that the protection afforded by the International Covenant on Civil and Political Rights does not cease in time of war and that, in principle, the right not to be arbitrarily deprived of one`s life applies, even in the event of hostilities. The Court added that what constitutes an arbitrary deprivation of life must be determined by the applicable lex specialis, namely the law applicable in armed conflict, which is intended to regulate the conduct of hostilities. This declaration has generally been interpreted as regulating the issue of the interaction between IHL and human rights standards and implies that human rights law, which is considered applicable at all times, constitutes the lex generalis, while IHL, the application of which is triggered by the occurrence of an armed conflict, constitutes the lex specialis. In other words, when human rights laws and IHL are in conflict, the latter is considered widespread because it is specifically designed to deal with armed conflict. Although the meaning and even usefulness of the doctrine of lex specialis has been questioned, it is generally accepted that it is indispensable for determining the interaction between IHL and human rights.

Although these two branches of international law are generally complementary, the notion of complementarity cannot resolve the complex legal issues of interaction that sometimes arise. In some cases, IHL and human rights rules can lead to conflicting results when applied to the same facts, as they reflect the different circumstances for which they were primarily developed. ETUC – Economic, social and cultural rights. In general, those included in the ICESCR are understood, although ESC rights are no longer considered a separate category of rights. Temporal scopeWhile IHL applies exclusively to armed conflict (see question 5), human rights apply in principle at all times, i.e. in peacetime and during armed conflict. However, unlike IHL, some human rights treaties allow governments to deviate from certain obligations in situations of public emergency that threaten the life of the nation. However, exceptions must be necessary and proportionate to the crisis, must not be introduced on a discriminatory basis and must not violate other rules of international law, including the provisions of international humanitarian law. Certain human rights can never be derogated from, including the right to life, the prohibition of torture or cruel, inhuman or degrading treatment or punishment, the prohibition of slavery and serfdom and the prohibition of retroactive criminal laws.

These treaties are monitored by human rights bodies such as the Human Rights Committee for the International Covenant on Civil and Political Rights and the European Court of Human Rights for the European Convention on Human Rights. IHL and international human rights law are complementary bodies to international law that pursue some of the same objectives. IHL and human rights laws seek to protect the life, health and dignity of individuals, albeit from different angles – which is why the nature of some rules, although formulated very differently, is similar. For example, IHL and human rights law prohibit torture or cruel treatment, impose fundamental rights on persons subject to criminal prosecution, prohibit discrimination, contain provisions to protect women and children, and regulate certain aspects of the right to food and health. However, there are important differences between them: their origins, the scope of their application, the places that implement them, etc. International human rights law (WHR) is enshrined in the Universal Declaration of Human Rights and the two human rights covenants – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR). .