International Humanitarian Law and
International Human Rights Law
Similarities and differences
Both international humanitarian law
(IHL) and international human rights law (IHRL) strive to protect the lives,
health and dignity of individuals, albeit from a different angle. It is
therefore not surprising that, while very different in formulation, the essence
of some of the rules is similar, if not identical. For example, the two bodies
of law aim to protect human life, prohibit torture or cruel treatment,
prescribe basic rights for persons subject to a criminal justice process,
prohibit discrimination, comprise provisions for the protection of women and
children, regulate aspects of the right to food and health. On the other hand,
rules of IHL deal with many issues that are outside the purview of IHRL, such
as the conduct of hostilities, combatant and prisoner of war status and the
protection of the red cross and red crescent emblems. Similarly, IHRL deals
with aspects of life in peacetime that are not regulated by IHL, such as
freedom of the press, the right to assembly, to vote and to strike.
What is international humanitarian
law?
IHL is a set of international rules,
established by treaty or custom, which are specifically intended to solve
humanitarian problems directly arising from international or non-international
armed conflicts. It protects persons and property that are, or may be, affected
by an armed conflict and limits the rights of the parties to a conflict to use
methods and means of warfare of their choice.
IHL main treaty sources applicable in
international armed conflict are the four
Geneva Conventions of 1949 and their
Additional Protocol I of 1977. The main treaty sources applicable in
noninternational-armed conflict are article 3 common to the Geneva Conventions and
Additional Protocol II of 1977.
....and what is international
human rights law?
IHRL 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 behavior or benefits from governments. Human
rights are inherent entitlements which belong to every person as a consequence
of being human. Numerous non-treaty based principles and guidelines ("soft
law") also belong to the body of international human rights standards.
IHRL main treaty sources are the
International Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights (1966), as well as Conventions on Genocide (1948), Racial
Discrimination (1965), Discrimination Against Women (1979), Torture (1984) and
Rights of the Child (1989). The main regional instruments are the European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950),
the American Declaration of the Rights and Duties of Man (1948) and Convention
on Human Rights (1969), and the African Charter on Human and Peoples' Rights
(1981). While IHL and IHRL have historically had a separate development, recent
treaties include provisions from both bodies of law. Examples are the
Convention on the Rights of the Child, its Optional Protocol on the
Participation of Children in Armed Conflict, and the Rome Statute of the
International Criminal Court.
When are they applicable?
IHL is applicable in times of armed
conflict, whether international or noninternational. International conflicts
are wars involving two or more states, and wars of liberation, regardless of
whether a declaration of war has been made or whether the parties involved
recognize that there is a state of war. Non-international armed conflicts are
those in which government forces are fighting against armed insurgents, or
rebel groups are fighting among themselves. Because IHL deals with an
exceptional situation – armed conflict – no derogations whatsoever from its
provisions are permitted. In principle, IHRL applies at all times, i.e. both in
peacetime and in situations of armed conflict. However, some IHRL treaties
permit governments to derogate from certain rights in situations of public
emergency threatening the life of the nation. Derogations must, however, be
proportional to the crisis at hand, must not be introduced on a discriminatory
basis and must not contravene other rules of international law – including
rules of IHL. Certain human rights are never derogable. Among them are the
right to life, prohibition of torture or cruel, inhuman or degrading treatment
or mpunishment, prohibition of slavery and servitude and the prohibition of
retroactive criminal laws.
Who is bound by these bodies of law?
IHL binds all actors to an armed
conflict: in international conflicts it must be observed by the states
involved, whereas in internal conflict it binds the government, as well the
groups fighting against it or among themselves. Thus, IHL lays down rules that
are applicable to both state and non-state actors. IHRL lays down rules binding
governments in their relations with individuals. While there is a growing body
of opinion according to which nonstate actors – particularly if they exercise
government-like functions – must also be expected to respect human rights
norms, the issue remains unsettled.
Are individuals also bound?
IHL imposes obligations on
individuals and also provides that persons may be held individually criminally
responsible for "grave breaches" of the Geneva Conventions and of
Additional Protocol I, and for other serious violations of the laws and customs
of war (war crimes). IHL establishes universal jurisdiction over persons
suspected of having committed all such acts. With the entry into force of the
International Criminal Court, individuals will also be accountable for war
crimes committed in non-international armed conflict. While individuals do not
have specific duties under IHRL treaties, IHRL also provides for individual
criminal responsibility for violations that may constitute international
crimes, such as genocide, crimes against humanity and torture. These crimes are
also subject to universal jurisdiction. The ad hoc International Criminal
Tribunals for the former Yugoslavia and Rwanda, as well as the International
Criminal Court, have jurisdiction over violations of both IHL and IHRL.
Who is protected?
IHL aims to protect persons who do
not, or are no longer taking part in hostilities. Applicable in international
armed conflicts, the Geneva Conventions deal with the treatment of the wounded
and sick in the armed forces in the field (Convention I), wounded, sick and
shipwrecked members of the armed forces at sea (Convention II), prisoners of
war (Convention III) and civilian persons (Convention IV). Civilian persons
include internally displaced persons, women, children, refugees, stateless
persons, journalists and other categories of individuals (Convention IV and
Protocol I). Similarly, the rules applicable in noninternational armed conflict
(article 3 common to the Geneva Conventions and Protocol II) deal with the
treatment of persons not taking, or no longer taking part in the hostilities.
IHL also protects civilians through rules on the conduct of hostilities. For
example, parties to a conflict must at all times distinguish between combatants
and non-combatants and between military and non-military targets. Neither the
civilian population as whole nor individual civilians may be the object of
attack. It is also prohibited to attack military objectives if that would cause
disproportionate harm to civilians or civilian objects. IHRL, being tailored
primarily for peacetime, applies to all persons.
What is the system of
implementation...
...at the 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.
...at the 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 countryspecific 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.
...at the 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 centrepiece 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.
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