THE RELATIONSHIP BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND HUMANITARIAN LAW

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.

QUICK FACTS ON HUMANITARIAN LAW

Introduction to International Humanitarian Law

Until the middle of the 19^th century all of the treaties concerning war victims' protection were circumstantial and binding only for the signing parties. These agreements were purely military-designed, based on strictly binding mutual obligations; and they were in force only during specific armed conflict.

The 1864 Geneva Convention laid the foundations for the contemporary humanitarian law. It was in a whole characterized by:

• standing written rules of universal scope to protect the victims of conflicts;
• its multilateral nature, open to all States; the obligation to extend care without discrimination to wounded and sick military personnel;
• respect for and marking of medical personnel, transports and equipment using an emblem (red cross on a white background).

The creation of the modern humanitarian law was strongly tied with the International Red Cross and Red Crescent Movement, changing the matter of things. It was a big step towards humanity. Since then countries are bound by multilateral treaty, which is in force forever and on every occasion.

THE HISTORY OF HUMANITARIAN LAW

Henry Dunant

It all began in June 1859, when a merchant named Henry Dunant was traveling through the war-ravaged plain of Normandia, north of Italia, after the battle of Solferino. Seeing thousands of wounded soldiers left dying in the mercy of fate, he appealed to the local inhabitants to come and help, insisting that combatants from both sides should be taken care of. There and then it crossed the Dunant's mind an idea about the creation of the Red Cross;. so he decided to tell the world about experienced horrors of war and wrote a book "A memory of Solferino", let it be mentioned here that with this work he initiated the news reports' epoch. In his book, published in 1862, he made two solemn appeals; firstly, for relief societies to be formed in the peacetime with nurses who would be ready to care for the wounded in wartime. Secondly, for these volunteers, who would be called upon to assist the military medical services, to be recognized and protected through an international agreement. These ideas soon materialized in the creation of the "International Committee for Relief to the Wounded", which later became the International Committee of the Red Cross.

In response to an invitation from the International Committee, representatives from sixteen countries and four philanthropic institutions gathered at an International Conference in Geneva in 1863. This event marked the founding of the Red Cross as an institution. But this was only the first step. Henry Dunant and the other members of the Committee wanted official and international recognition of the Red Cross and its ideals. They wanted a Convention to be adopted which would ensure the protection of medical services on the battlefield.

To this end the Swiss government agreed to convene a Diplomatic Conference which was held in Geneva in 1864. Representatives of twelve governments took part and adopted a treaty prepared by the International Committee and entitled the "Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field". This agreement, with its ten articles, was the first treaty of international humanitarian law. Subsequently, further conferences were held, extending the basic law to other categories of victims, such as prisoners of war. In 1899 in the Hague it was signed the next Convention, adjusting Geneva Convention's principles to the war-action at sea. In 1906, the ten articles of the First Convention were improved and complemented. And in 1907 under the terms of this Convention,. In the Hague it were determined all combatants' categories who had the war-prisoner's status when detained as well as the right for the adequate treatment during their captivity. In 1929, these Conventions were developed further and affirmed one more time.

In the aftermath of the Second World War, a Diplomatic Conference deliberated for four months before adopting the four Geneva Conventions of 1949, which for the first time included provisions for the protection of civilians in wartime. In 1977, the Conventions were supplemented by two Additional Protocols. 

The First Geneva Convention, signed in 1864, was the first treaty of international humanitarian law. In 1899 in the Hague it was signed the next convention, applying the Geneva convention to war action at sea.

And in 1907 The Hague Convention determined combatants' categories. In 1929 these conventions were developed further and expanded one more time. In 1949 during the international conference it was adopted Geneva convention "Civil persons' protection during the war-time" as well transcribed three previous adapted conventions and submitted their texts. The Geneva convention from 1949 and additional Protocols in toto nearly 600 paragraphs is law achievement with a historical importance.

The essential rules of international humanitarian law

Persons who do not or can no longer take part in the hostilities are entitled to respect for their life and for their physical and mental integrity. Such persons must in all circumstances be protected and treated with humanity, without any unfavorable distinction whatever.

It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.

The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Medical personnel and medical establishments, transports and equipment must be spared. The red cross or red crescent on a white background is the sign protecting such persons and objects and must be respected.

Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their life, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid.

Everyone must enjoy basic judicial guarantees and no one may be held responsible for an act he has not committed. No one may be subjected to physical or mental torture or to cruel or degrading corporal punishment or other treatment.

Neither the parties to the conflict nor members of their armed forces have an unlimited rights to choose methods and means of warfare. It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering.

The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as whole nor individual civilians may be attacked. Attacks may be made solely against military objectives.

GENEVA CONVENTIONS

The basic principles of Geneva conventions are reposing on the respect of the human being and are respecting its dignity.

Individuals, who do not take direct part in hostilities as well as individuals, can not take part in these actions due illness, wound, captivity or other reasons, are entitled to be respected and protected against conflicting sides' military operations' consequences without any unfavorable distinction whatever.

Additional protocols are extending action field, concerning it to any individual, involved in a military conflict. Moreover, these protocols oblige warring sides and combatants not to attack civilians and civil objects as well oblige to guarantee the providing of military operations in compliance with the generally accepted humanitarian law

Geneva conventions, accepted on August the 12^th, 1949

The protection provided by the Conventions applies to the following categories of persons:

The First Convention - wounded and sick members of the armed forces in the field;

The Second Convention - wounded, sick, and shipwrecked members of the armed forces at sea as well as shipwreck victims;

The Third Convention - prisoners of the war;

The Fourth Convention - civilians in times of war.

OTHER PROTOCOLS

The ICRC, being the initiator and the guardian of international humanitarian law, is responsible for its development in order to be in step with warfare changes. The law are formed in a consecutive stages, as well providing the revision of existing documents whenever the Committee considers it as a necessary measure. Committee's legal experts organize and participate in meetings and conferences aimed at improving the protection of war victims. Banning the use of certain weapons, such as anti-personnel landmines and blinding weapons, is among the issues currently being examined.

In the 1965 ICRC decided that it was coming up to this measure. Even if the Geneva Conventions dated 1949 have not lost their importance and significance, they were incomplete in the terms of the necessity to protect the victims of modern military conflicts. For that reason ICRC began research the possibilities to fill these gaps in existing law, providing them with the additive protocols. In February, 1974, Swiss government convened a diplomatic conference in order to discuss the draft protocols. Invited were 115 countries who signed Geneva conventions or/and the member states of United Nations Organization. In this conference it took part observers representing 14 national liberation organizations as well as 35 intergovernmental and non-governmental organizations; 102 official representatives adopted 102 paragraphs of the First protocol concerning protection of the victims of international military conflicts, as well as 28 paragraphs of the Second protocol concerning the protection of the victims of local conflicts. In June the 10^th, 1977, there was the official ceremony of the signing of these Protocols, but in general these activities had the ceremonial character. The two Additional Protocols of 1977 supplement the Conventions which aim to limit the use of violence and protect the civilian population by strengthening the rules governing the conduct of hostilities.

ICRC's relation with other international humanitarian law.

As a neutral and private organization, whose all participants are Swiss citizens, as well as an initiator of the acceptance of the Geneva Convention, ICRC is taking responsibility for the adoption of these conventions. Moreover, in account of its neutrality this Committee is based in a convenient place to offer its assistance to the victims of the warring-sides military conflicts.

In the first place, ICRC is a real helper to the wounded and sick military personnel, as well as shipwreck victims and the prisoners of war, whose condition it seeks to improve from the moment of their capturing to their release.

For that purpose it

• delegates its representatives to the internment camps, concentration camps or/and labor camps where the imprisoned people are kept;
• representatives evaluate these prisoners' lodging and boarding conditions as well as attitude against them;

if necessary, representatives make an appeal to prisoner-keeping country to reach an preferable improvements.

ICRC is acting in favor of the civil persons in the territory of enemy and in the occupied regions. In the case of local military conflicts the Committee acts as a neutral mediator (see para 3 common to all four Geneva conventions from 1949).

Another sphere of the action of the ICRC is providing the searching of the missing persons as well as an exchange of information between the family members divided by military conflicts. The central searching institution of the ICRC, based in Geneva, too, has recently data-based the amount of 55 million cards in which there are summarized 30 millions of specific cases in the hundred years' period.

Eventually, the ICRC is an organization, to which can refer those civilians who in the case of war are starving. It's not a rare situation when ICRC is the one and only institution who can overstep the barbed wires, blockade, as well can make free movements in the occupied territories providing food, medicine and clothes, blankets etc. to those are in need.

Depending on the scale of help needed, the ICRC turns for help to the National committees of the ICRC, the League of the Red Cross organizations, to the governments not included in war-conflict as well as non-governmental institutions.