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.

DISTINCTIVE FEATURES OF REGIONAL HUMAN RIGHTS INSTRUMENTS: THE AFRICAN CHARTER ON HUMAN AND PEOPLES’S RIGHTS, THE EUROPEAN CONVENTION OF HUMAN RIGHTS AND THE AMERICAN CONVENTION ON HUMAN RIGHTS.

1.0 INTRODUCTION

With the adoption of the Universal Declaration of Human Rights in 1948, regional organisations have taken the cue to adopt human rights instruments applicable within the respective regions of the globe. This has been encouraged by the provisions of article 52 of the United Nations Charter that allows regional initiatives to facilitate the objects of the Charter. Except for the Asian region, the rest of the regions of the globe; Africa, Europe and the Americas have designed their special human rights instruments with elaborate enforcement mechanisms parallel to the United Nation’s mechanisms. Notable however is the fact that although regional human rights instruments generally adopted the rights and freedoms akin to those enumerated in the Universal Declaration of Human Rights, they devised innovative inclusions (or omissions) that distinguishes each region’s instrument to the others. The present works seeks to identify these distinctive features in the three regional instruments; the African Charter on Human and Peoples’ Rights, The American Convention on Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

2.0 The African Charter on Human and Peoples’ Rights (The African Charter.)

2.1 The African Charter is the primary human rights document through which human rights is to be protected and promoted in Africa. As compared to other regional instruments, the African charter is in many respects unique[1]. The normative structure of the Charter is innovative and substantively departs from other regional and universal instruments.[2]

2.2 First, the African Charter contains all the three ‘generations’ of human rights: civil and political rights, economic, social and cultural rights and group and peoples’s right. Articles 3-14 enumerate civil and political rights, articles 15-18 deal with economic, social and cultural rights while articles 19-24 enact solidarity rights. The Convention for the Protection of Human Rights and Fundamental Freedoms (The European Convention on Human Rights) contains only civil and political rights. Economic, social and cultural rights are enacted in the European Social Charter (Revised) of 1996 with different enforcement mechanisms and which by articles A and B thereto, are not wholly binding to states. The American Convention On Human Rights (The American Convention) concentrates on civil and political rights but provides a very general mention of economic, social and cultural rights under article 26 asking states to effect, through appropriate means, the full realisation of the rights implicit in the Economic, Social, Educational, Scientific And Cultural Standard set forth in the Charter of the Organisation Of American States (O.A.S.), but without mentioning them specifically.

2.3 Second, the African Charter contains detailed provisions of the duties and responsibilities of individuals under articles 27-29. Every individual is said to have duties towards his family, society and the state. These provisions lack in the European Convention on Human Rights. The American Convention has article 32 saying that every person has responsibilities to his country, family and mankind and that an individual’s rights are limited by the rights of others, by security of all and by just demands of the general welfare in a democratic society. It however does not enumerate these obligations. Thus it is submitted that the intention of article 32 is to show the correlation between rights and duties and not to provide specific duties owed by individuals as does the African Charter.

2.4 Third, the African charter does not have a general derogation clause which is contained in all other regional and universal human rights conventions. Article 15 of the European Convention on Human Rights provides for derogation from human rights in times of public emergencies threatening the life of the nation but excludes from derogation such rights like right to life and prohibition of torture and slavery. A similar provision is found in article 27 of the American Convention styled ‘suspension of guarantees’.

2.5 Fourth, the African Charter does not establish a court within the folds of the document as the rest of other regional instruments do, instead; a proposed court has been established vide the Protocol To The African Charter Establishing An African Court On Human And People’s Rights.[3] The European Convention establishes a European Court on Human Rights under section II of the convention while the Inter-American Court on Human Rights is established under section 33.b of the American Convention. In addition the commission and the court established under the African charter and the protocol thereto have are empowered to use as sources of law, any other human rights instruments and decisions of other jurisdictions in addition to the African charter.[4] The other documents do not explicitly provide for such wide sources of law although in practice other laws may be quoted with persuasive effect.

2.6 Fifth, whereas other regional instruments are individual centred, the African Charter is group based. It seeks to reconcile the rights of the individual with that of larger community and the state. It venerates the African culture.[5] The charter suggests that human rights are to be enforced in Africa within a defined context shaped by ‘historical tradition and the values of African civilisation.’ Other documents do not have similar provision exulting culture and generally refer to universal tenets of human rights as enunciated in the United Nations Universal Declaration of Human Rights.

Finally, the African charter has ‘claw back’ clauses that permit states to restrict basic human rights to the maximum extent allowed by municipal law. For instance, article 6 provides that every individual shall have right to liberty and no one may be deprived of his freedom ‘except for reasons and conditions previously laid down by law’. Article 10 provides for right to free association ‘provided that he abides by the law’. Similarly, article 12 provides that everyone has freedom of movement and residence ‘provided he abides by law.’ the European Convention On Human Rights and the American Convention enumerate specific instances where certain violations of recognised rights may be deemed justifiable but qualified by such phrases like ‘…as are necessary in a democratic society.’ For example, article 10.2 of the European Convention on Human Rights provides that;

‘…the exercise of these freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as prescribed by law and are necessary in a democratic society in the interest of national security, territorial integrity and public safety…’

3.0 The Convention for the Protection of Human Rights and Fundamental Freedoms (The European Convention on Human Rights)

It is implemented under the umbrella of the Council of Europe, a political organisation of European states that seeks inter alia to promote respect for human rights.[6] The European Convention on Human Rights has distinct features as follows:

3.1 First, the Convention as amended by Protocol Number 11[7] Establishes a European Court of Human Rights as the only principal enforcement body of human rights under the convention. Unlike other regional instruments, it does away with a Commission, which is merged into the European Court The African Charter creates the Commission On Human and Peoples’ Rights while the American convention creates an equivalent Inter-American Commission on Human Rights, which are the key monitoring and enforcing organs under the respective instruments.

3.2 Second, the European convention on human rights establishes a court whose members hold office at a full time basis. Article 15 of the Protocol to the African Charter Establishing the African Court on Human and Peoples’ Rights provides that all judges, save for the president, is to hold office on part time basis only. The Inter-American Court on Human Rights likewise operates on a part time basis.[8]

3.3. Third, whereas the European Court on Human rights can automatically receive individual applications directly under article 34 of the European Convention, the same is not true of other regional courts. The Protocol to African Charter Establishing the African Court, under article 3 provides that only the Commission On Human And Peoples’ Rights, state parties and African Inter-Governmental Organisations have a right to access the court directly. Individuals and Non-Governmental Organisations with observer status to before the Commission can submit their applications directly to the court only if a state has under article 34(4) acceded to the competence of the court to receive such applications. Under the American Convention, only the Inter-American Commission has power to refer matters to the Inter-American court under article 51.

3.4 Fourth, unlike other regional and universal human rights instruments, the European Convention on Human Rights creates a three level court comprising of Committees of three judges, Chambers of seven judges and a Grand Chamber of seventeen. The most unique feature is that the Grand Chamber acts as an appellate court where matters raising exceptional and serious questions affecting the interpretation or application of the Convention may be referred to it (article 43) and its decision is final. This is an innovative development absent in other instruments.

3.5 Fifth, the European Convention is the only human rights instrument providing for reservations and denunciation of the Convention by virtue of articles 57 and 58 respectively. Other instruments lack suck provisions, ostensibly implying that once a state is a party, it remains so.

4.0 The American Convention on Human Rights (The American Convention)

4.1 The American Convention was created under the aegis of the Organisation of American States (O.A.S.). The first distinctive feature of the American Convention is that it creates under articles 34 and 35, an Inter-American Commission on Human Rights which has jurisdiction in respect of all members of the O.A.S. and not just those that have ratified the Convention.[9] Similar commissions established under other instruments have jurisdiction only on state parties to the human rights instrument establishing them and which is not dependant on membership of the forum in which it was negotiated.

4.2 Secondly, and related to the first distinction, even though the American convention is made under the umbrella of the O.A.S., members of the O.A.S. are not necessarily bound by the Convention until they ratify or accede to it. Conversely, other regional human rights instruments bind all members of the grouping under which the document was negotiated. Paragraph 2 of the preamble to the Africa Charter states that all members of the then Organisation of African Unity are all parties to the charter. Similarly, paragraph 1 of he preamble to the European Convention on Human Rights states that the signatory Governments to the Convention are members of the Council of Europe. Membership to the either the Organisation of Africa Unity or the Council of Europe is automatic acceptance of obligations under the respective human rights instruments.

4.3 Third, unlike other regional instrument, the American Convention has no counter part to the supervisory role of the Committee of Ministers of the Council of Europe under the European Convention or the Council of Ministers referred to in article 27 of the Protocol to the African Charter Establishing the African Court.

4.4 Fourth, the American convention is neither the sole nor the primary human rights instrument in the American system. The rights and freedoms protected under the system and which are enforceable by the inter-american commission include those enumerated in the American declaration of the rights an duties of man. O.a.s. handbook of existing rules pertaining to human rights 1980. the declaration applies indirectly  by virtue of obligations under the oas charter which incorporates the declaration. (harris david pg 4. thus the declaration and not the convention, is the primary human rights instrument and supplements the convention by protecting rights not found in the convention especially economic  social and cultural rights. Follwing the advisory opinion no. 10, A/A court H.R. series, A No. 10 paragraph 85 (1989) 11 H.R.I.J 118, where the interamerican court ruled that ‘the declaration is the text that defines the human rights referred in the (O.A.S.) charter.

Fifth, the American convention does not provide for the right of individual access to the inter-american court or access by such bodies like non-governmental organisations. Only the commission is empowered to refer matters to the court. Other regional instruments give individual access to the courts established either automatically (as in the case of the European convention pursuant to article 34) or following a specific declaration by a states recognising the competence of the court to receive and consider direct individual applications (as is the case under the African system following provisions of article 34(4) of the protocol the African charter establishing the African court.)

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[1] Malcolm D Evans and Murray Rachel (eds);  The African Charter On Human And Poeples’ Rights; The System In Practice 1986-2000, Cambridge University Press, Oxford,  Introduction.

[2] Makau Mutua; the African Human Rights System; a Critical Evaluation at

<http://www//hdr.undp.org/docs/publications/background_papers/MUTUA.P.D.F.> accessed on 19th June 2006.

[3] Of 9^th June 1998, O.A.U. DOC, OAU/LEG/EXP/AFCHPR/PROT (III).

[4] Article 60 and 61 of the African charter.

[5] Paragraphs 5-8 of the preamble to the African Charter and article 29.7.

[6] Shaw M.N. (1997); International Law; Grotious Publications Ltd. Cambridge 4^th Ed. Pg 253.

[7]  (ETS NO. 155 entered into force on 1^st November, 1998).

[8] See Harris David; Regional Protection of Human Rights; the Inter-American Achievement, In David Harris and Livingstone Stephen (Eds) the Inter-American System of Human Rights (1998) Clarendon Press, Oxford, Pg 3.

[9] Shaw M.N (1986) International Law, Grotious Publications Ltd, 2^nd Ed. Cambridge pg 202.