Human Rights and Humanitarian Law

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Human Rights and Humanitarian Law: AComparative Study

Collected By BdLawSource.com



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ABBREVIATIO S

CEDAW Committee on the Elimination of All forms of

Discrimination against Women

CERD Committee on the Elimination of All forms of Racial

Discrimination

ICCPR International Co enant on Ci il and Political Rights

ICESCR International Co enant on Economic! Social and CulturalRights

IC" International court of "ustice

I#RR International #uman Rights Re$orts

IL% International La&our %rganisation

'D#R 'ni ersal Declaration of #uman Rights

'( 'nited(ations

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CO TE TS

)itle Page

A&stract *III

Cha$ter + Introduction +

Cha$ter +.+ International #umanitarian law ,

Cha$ter +., Basic Princi$les of International #umanitarian law -

Cha$ter +. De elo$ment of International #umanitarian Law /

Cha$ter , #uman Rights ++Cha$ter ,.+ #istorical De elo$ment of #uman Rights ++

Cha$ter ,., )reaties +0

Cha$ter Com$arati e Study +1

Conclusion ,2

Bi&liogra$hy




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ABSTRACT

International #umanitarian Law is a new &ranch of international Law of which

much has not yet &een tal3ed or written. #owe er! now4a4days this su&5ect is

recei ing 3een attention from the academics in the west. )he $resent study isan attem$t to focus u$on western contri&utions in this field. International

#umanitarian law refers to international rules! whether of con entional or

customary origin! that resulting from armed conflicts! international or

otherwise. 6)hese rules limit! for humanitarian reasons! the rights of the

$arties to the conflict to use methods and means of warfare $urely of their

own choice! and $rotect the $ersons and o&5ects that are affected or may &e

affected &y the conflict.7

)he growth and e8$ansion of international human rights law has &rought

a&out a radical change in the ideological &ases of international law. Such a

change is first e ident in the uni ersal ac3nowledgement that gross iolations

of indi idual and collecti e rights cannot &e 5ustified on grounds of so ereignty

or demotic 5urisdiction.




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Chapter !

Introdu"tion

E er since the dawn of $rimiti e society! human &eings antagoni9ed each

other. War is a rot to humanity and in ol es most &rutal and ar&itraryiolence:s. In all ages men ha e suffered under the sword and the yo3e.

Des$ite this! some norms or rules were de elo$ed the hoary $ast for the

$ur$ose of limiting the conse;uences of war and to $rotect men against the

e ils of war and ar&itrary treatment. "ean Pictet who is recogni9ed as the

father of modern international #umanitarian law a$tly says4

6)he laws of war are as old as war itself and war is as old as life on the

earth7 +

)he laws of war are to &e found in the leading religion! $ractices of warlords!

writings of $hiloso$hers! customary rules of warfare and multilateral treaties

concluded mostly in <ene a and the #ague in the +2 th and ,= th centuries.

But the star3 reality shows that armed conflict still e8ist and claim an

increasing num&er of ictims in $articular those who should remain immune

under the law> the ci ilian $o$ulation. )o achie e &etter $rotection for those

ictims! I#L must &e &etter 3nown among those who should a$$ly it>com&atants! $u&lic officials and es$ecially in the growing num&er of situations

where structures of authority ha e disintegrated! the whole $o$ulation.

Chapter !#!

Internationa$ Humanitarian $aw

International #umanitarian law forms a ma5or $art of $u&lic International law

and com$rises the rules which in times of armed conflict! see3 to $rotect

$ersons who are not or are no longer ta3ing $art in the hostilities! and to

restrict the methods and means of warfare em$loyed! It is also called the law

of armed conflict. Its traditional name was the law of war.

International #umanitarian law can &e defined as the &ranch of international

law limiting the use of iolence in armed conflicts &y>

?a@ S$aring those who do not or no longer directly $artici$ate in hostilities

1 Jean Pictet, Development and Principles of nternational!umanitarian law, "




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?&@ Limiting the iolence to the amount necessary to achie e the aim of

the conflict! which can &e inde$endently of the causes fought for only

to wea3en the military $otential of the enemy.

According to "ean Pictet 6#umanitarian law is that considera&le $ortion of

international law which is ins$ired &y a feeling for humanity and is centred on

the $rotection of the indi idual in time of war7

International #umanitarian law! which is an emergency law a$$lica&le in

international or non4 international armed conflict! is a &ranch of International

law. (ow4a4days this su&5ect is recei ing 3een attention from all e$ochs.

)here is an increasing num&er of writing and analysis on International#umanitarian law. Recently! se eral e8cellent te8t &oo3s on that matter ha e

&een $u&lished in different languages. (ow the $resent study is a little

attem$t to enlighten the discussion on the de elo$ment of I#L! and to

enhance the international humanitarian assistance in the continuance of

armed conflict or war de astated economy. It is $ertinent to mention here

that International #umanitarian law is omni$resent in contem$orary conflict.

But the $ro isions of humanitarian con entions ?mainly <ene a@ ha e no

rele ance in the contem$orary crisis! rather than there is the $ractice of &elligerency in oso o! Bosnia! Chechnya! Li&eria! Sierra Leone and glaring

e8am$le of Afghanistan and Ira;. )heir ?humanitarian con ention@

effecti eness or im$lementation is a dismal failure. So! the aims of my

research and analysis is to elucidate the framewor3 of International

#umanitarian law! to esta&lish the legal relationshi$ &etween International

#umanitarian law and International law of #uman rights and to $oint out the

e olution and de elo$ment of International #umanitarian law and finally to

e aluate the role $layed &y the ICRC in the im$lementation of International

#umanitarian law. So! I would li3e to say that $rior to any o$eration in the

name of international co4o$eration it should com$ly with International

#umanitarian law 5ust to lessen the humanitarian catastro$he and to deli er

a&ru$t humanitarian assistance.




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Chapter !#%

Basi" &rin"ip$es o' Internationa$ Humanitarian $aw

International #umanitarian law has in $articular uni ersal ocation! since it

a$$lies to men and countries. )he humanitarian $rinci$les are common to allhuman communities whene er they may &e. )he main o&5ect of I#L is to

regulate hostilities in order to attenuate their hardshi$s and $rotect the

ci ilian from the curse of armed conflict. #umanitarian law has two &ranches!

one &earing the name of <ene a and the other the name of )he #ague. )he

&asic $rinci$les of I#L are as follows>

i@ )he distinction &etween ci ilians and com&atants

ii@ )he $rohi&ition to attac3 those hors de-combat iii@ )he $rohi&ition to launch attac3s against the ci ilian

i @ )he $rohi&ition to inflict unnecessary suffering

@ Protections of the $risoners of war

i@ )he $rinci$le of necessity

ii@ Protection of the wounded! sic3 and shi$wrec3ed $ersons

iii@ )he $rinci$le of $ro$ortionality




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Chapter !#(

)eve$opment o' Internationa$ Humanitarian Law

)he de elo$ment of I#L is not really a su&5ect of today! if we loo3 &ac3 to the

ancient $eriod! it will &e e ident that the ancient ci ili9ation $articularly <ree3

and Roman Ci ili9ation $layed a ery significant role in the de elo$ment of

International #umanitarian Law. In this $eriod International #umanitarian Law

was de elo$ed through some stages.

In the ancient $eriod during the continuance of war $eo$le maintained arious

categories of rules which were similar to modern international rules of war>

rules distinguishing ty$es of enemies! rules defining the circumstances!

formalities and authority for &eginning! rules descri&ing limitations of $ersons!

time $lace! and methods etc , . )he great <enghis han was famous for his

$owerful and successful army. <enghis han was also famous for his ruthless

efficiency in &attle! or ;uite sim$ly! his ruthlessness. In the ancient $eriod

arious categories of nations maintained their res$ecti e rules during the war

time. It is ela&orated &elow>

<rotius did not a&andon the idea of the 5ust war! &ut considered that the

inherent com$etence of the state to wage war was a more im$ortant element

in war than the 5ustice of its causes and regarded was as one of the means of

conser ing the state. In his famous treatise De jure belli ac pacis he wrote!

6In war we must always ha e $eace in mind7 #e was the first to assert that

the “Just cause” in o3ed &y a state to resort to war did not negate the duty of

the &elligerents to o&ser e the laws of war. <rotius &elie ed that the

$o$ulation of an ad erse country was an enemy! at the mercy of the winner.

At the same time he insisted that iolence &eyond what was necessary for

ictory was not 5ustified. Since iolence is no longer regarded as the

administration of $unishment! it ceases to &e an end in itself it &ecomes a

means! to &e used with increasing and measured moderation.In his ma5or

wor3! De 5ure &elli ac $acis! which the Catholic Church 3e$t on the inde8 of

for&idden &oo3s until + 22! <rotius enumerated the Temperament belli which

constitute $art of the most solid foundations of the law of war.

De elo$ment of scientific S$irit and #umani9ation of War>

2 # study of war, $%&'3 Md Jahid Hossain Bhuiyan, International Humanitarian Law- An Anthology. P2




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)he +1 th century o$ened the age of enlightenment which among other things

witnessed the &irth of humani9ation! an ad anced and rational form of charity

and 5ustice. )he $hiloso$hers refused to consider suffering as a fatality and no

longer acce$ted the doctrine that e ery man was res$onsi&le for the misery in

the world. )hey held that all men had e;ual and inaliena&le rights! which itwas the res$onsi&ility of the states to guarantee.

In the + th century war &ecame a struggle &etween $rofessional armies with

smaller num&ers of soldiers. Ci ilians were no longer directly in ol ed!

&ecause the armies had their own su$$ly ser ices $illage was for&idden!

war was! in short! under human control. )he humani9ation of war $roceeded

ra$idly at least in Euro$e. In + 1/s! )reaty of Friendshi$ and Peace: was

arri ed at &y Frederic3 the <reat and Ben5amin Fran3lin.)he recurrence of com$ara&le clauses created a erita&le customary law which

may &e summed u$ as follows>

#os$itals shall &e immuni9ed and &e mar3ed &y s$ecial flags with identifying

colours for each army.

)he wounded and sic3 shall not &e regarded as $ro ince of war! they shall &e

cared for li3e the soldiers of the army which ca$tured them and sent homeafter they are cured.

• Doctors their assistants and Cha$lains shall not &e ta3en as ca$ti es

shall &e returned to their own side.

• )he li es of $risoners of war shall &e $rotected and they shall &e

e8changed without ransom.

• )he $eaceful ci ilian $o$ulation shall not &e molested.

Foundation of the Red Cross>

)he horrendous situation had hardly im$ro ed &y the &eginning of the second

half of the +2 th century. Following the siege of Gessina in + - ! Doctor

Palasciano! one of the $recursors of the Red Cross! ha ing &arely esca$ed the

death $enalty! was sentenced to one year in $rison for &andaging the wounds

of the defeated garrison. When the Crimean *ar &ro3e out in + /-! the

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+2,2 First <ene a Con ention on Prisoners of war.

+2-/H+2- Esta&lishment of the International Gilitary )ri&unals in

(urem&erg and )o3yo for the Prosecution and $unishment of

the ma5or war criminals.

+2-2 Four <ene a Con entions4

I. on wounded and sic3 in the field.

ii. %n wounded! sic3 and shi$wrec3ed at sea.

Iii. on $risoners of war.

i . on Ci ilians ?in the hand of enemy@

Common Art. on non4international armed conflict.

+2/- #ague Con ention for the Protection of cultural $ro$erty in the

E ent of Armed Conflict.

+20 )he Lie&er code of the customary law of war.

+211 )wo $rotocols additional to the <ene a Con entions4

i. a$$lica&le in international armed conflicts. ?including

national li&eration wars@!

ii. a$$lica&le to non4international armed conflicts.

+2 = '( con ention on $rohi&itions or Restrictions of the ' se of

Certain Con entional Wea$ons.

+22 Paris Con ention of the $rohi&ition of the De elo$ment!

Production! Stoc3$iling and 'se of Chemical wea$ons and on

their Destruction.

+22 H+22- Esta&lished of International Criminal )ri&unals for the Former

ugosla ia ?in the #ague@ and Rwanda ?in Aruda@

+22/H+220 Protocols to the +2 = Wea$ons Con ention $rotocol I* on

Blinding Laser Wea$ons.

+221 %ttawa Con ention Banning Anti4$ersonnel land mine.




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+22 Ado$tion of the Statues of the International committee of the

Red Cross &y the assem&ly of the ICRC re$lacing those of

+21 .




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Chapter %

Human Rights

#uman rights refer to the J&asic rights and freedoms to which all humans are

entitled.J E8am$les of rights and freedoms which ha e come to &e commonly

thought of as human rights include ci il and $olitical rights! such as the rightto life and li&erty! freedom of e8$ression! and e;uality &efore the law and

economic! social and cultural rights! including the right to $artici$ate in

culture! the right to food! the right to wor3! and the right to education.

Chapter %#!

Histori"a$ )eve$opment o' Human Rights

Se eral ancient documents and later religions and $hiloso$hies included aariety of conce$ts that may &e considered to &e human rights. (ota&le

among such documents are the Edicts of Asho3a issued &y Asho3a the <reat

of India &etween ,1,4, + BC and the Constitution of Gedina of 0,, AD!

drafted &y $ro$het Guhammad to mar3 a formal agreement &etween all of the

significant tri&es and families of athri& ?later 3nown as Gedina@! including

Guslims! "ews and Pagans. )he English Gagna Carta of +,+/ is $articularly

significant in the history of English law! and is hence significant in

international law and constitutional law today.

Guch of modern human rights law and the &asis of most modern

inter$retations of human rights can &e traced &ac3 to relati ely recent history.

)he )wel e Articles of the Blac3 Forest ?+/,/@ are considered to &e the first

record of human rights in Euro$e. )hey were $art of the $easantsK demands

raised towards the Swa&ian League in the PeasantsK War in <ermany. )he

British Bill of Rights ?or 6An Act Declaring the Rights and Li&erties of the

Su&5ect and Settling the Succession of the Crown7@ of +0 2 made illegal a

range of o$$ressi e go ernmental actions in the 'nited ingdom. )wo ma5or

re olutions occurred during the + th century! in the 'nited States ?+110@ and

in France ?+1 2@! leading to the ado$tion of the 'nited States Declaration of

Inde$endence and the French Declaration of the Rights of Gan and of the

Citi9en res$ecti ely! &oth of which esta&lished certain legal rights. Additionally!

the *irginia Declaration of Rights of +110 encoded a num&er of fundamental

rights and freedoms into law.




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)he Charter does not esta&lish any $articular of human rights $rotection and

the em$hasis is u$on the non4inter ention in the affairs of mem&er States of

the 'nited (ations. - )hese were followed &y de elo$ments in $hiloso$hy of

human rights &y $hiloso$hers such as )homas Paine! "ohn Stuart Gill and <.

W. F. #egel during the + th and +2th centuries. )he term human rights$ro&a&ly came into use sometime &etween PaineKs )he Rights of Gan and

William Lloyd <arrisonKs + + writings in )he Li&erator saying he was trying to

enlist his readers in Jthe great cause of human rightsJ.

Gany grou$s and mo ements ha e managed to achie e $rofound social

changes o er the course of the ,=th century in the name of human rights. In

Western Euro$e and (orth America! la&our unions &rought a&out laws

granting wor3ers the right to stri3e! esta&lishing minimum wor3 conditionsand for&idding or regulating child la&our. )he womenKs rights mo ement

succeeded in gaining for many women the right to ote. (ational li&eration

mo ements in many countries succeeded in dri ing out colonial $owers. %ne

of the most influential was Gahatma <andhiKs mo ement to free his nati e

India from British rule. Go ements &y long4o$$ressed racial and religious

minorities succeeded in many $arts of the world! among them the ci il rights

mo ement! and more recent di erse identity $olitics mo ements! on &ehalf of

women and minorities in the 'nited States.

)he esta&lishment of the International Committee of the Red Cross! the + 0-

Lie&er Code and the first of the <ene a Con entions in + 0- laid the

foundations of International humanitarian law! to &e further de elo$ed

following the two World Wars.

)he World Wars! and the huge losses of life and gross a&uses of human rights

that too3 $lace during them were a dri ing force &ehind the de elo$ment of

modern human rights instruments. )he League of (ations was esta&lished in

+2+2 at the negotiations o er the )reaty of *ersailles following the end of

World War I. )he LeagueKs goals included disarmament! $re enting war

through collecti e security! settling dis$utes &etween countries through

negotiation! di$lomacy and im$ro ing glo&al welfare. Enshrined in its Charter

was a mandate to $romote many of the rights which were later included in the

'ni ersal Declaration of #uman Rights.

4 Ja"aid #ehman, International Human Rights Law: A Practical Approach. $27




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At the +2-/ alta Conference! the Allied Powers agreed to create a new &ody

to su$$lant the LeagueKs role. )his &ody was to &e the 'nited (ations. )he

'nited (ations has $layed an im$ortant role in international human rights law

since its creation. Following the World Wars the 'nited (ations and its

mem&ers de elo$ed much of the discourse and the &odies of law which nowma3e u$ international humanitarian law and international human rights law.

'ni ersal Declaration of #uman Rights>

)he 'ni ersal Declaration of #uman Rights ?'D#R@ is a non4&inding

declaration ado$ted &y the 'nited (ations <eneral Assem&ly in +2- ! $artly in

res$onse to the atrocities of World War II. Although the 'D#R is a non4

&inding resolution! it is now considered to &e a central com$onent of international customary law which may &e in o3ed under a$$ro$riate

circumstances &y national and other 5udiciaries. )he 'D#R urges mem&er

nations to $romote a num&er of human! ci il! economic and social rights!

asserting these rights are $art of the Jfoundation of freedom! 5ustice and

$eace in the world.J )he declaration was the first international legal effort to

limit the &eha iour of states and $ress u$on them duties to their citi9ens

following the model of the rights4duty duality.

)he 'D#R was framed &y mem&ers of the #uman Rights Commission! withformer First Lady Eleanor Roose elt as Chair! who &egan to discuss an

International Bill of Rights in +2-1. )he mem&ers of the Commission did not

immediately agree on the form of such a &ill of rights! and whether! or how! it

should &e enforced. )he Commission $roceeded to frame the 'D#R and

accom$anying treaties! &ut the 'D#R ;uic3ly &ecame the $riority. 2M

Canadian law $rofessor "ohn #um$rey and French lawyer RenN Cassin were

res$onsi&le for much of the cross4national research and the structure of the

document res$ecti ely! where the articles of the declaration were

inter$retati e of the general $rinci$le of the $ream&le. )he document was

structured &y Cassin to include the &asic $rinci$les of dignity! li&erty! e;uality

and &rotherhood in the first two articles! followed successi ely &y rights

$ertaining to indi iduals rights of indi iduals in relation to each other and to

grou$s s$iritual! $u&lic and $olitical rights and economic! social and cultural

rights. )he final three articles $lace! according to Cassin! rights in the conte8t

of limits! duties and the social and $olitical order in which they are to &e

reali9ed. #um$hrey and Cassin intended the rights in the 'D#R to &e legally




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enforcea&le through some means! as is reflected in the third clause of the

$ream&le>






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Chapter (

Comparative Studies

Both international humanitarian law ?I#L@ and international human rights law

?I#RL@ stri e to $rotect the li es! health and dignity of indi iduals! al&eit froma different angle. It is therefore not sur$rising that! while ery different in

formulation! the essence of some of the rules is similar! if not identical. For

e8am$le! the two &odies of law aim to $rotect human life! $rohi&it torture or

cruel treatment! $rescri&e &asic rights for $ersons su&5ect to a criminal 5ustice

$rocess! $rohi&it discrimination! com$rise $ro isions for the $rotection of

women and children! and regulate as$ects of the right to food and health. %n

the other hand! rules of I#L deal with many issues those are outside the

$ur iew of I#RL! such as the conduct of hostilities! com&atant and $risoner of war status and the $rotection of the Red Cross and Red Crescent em&lems.

Similarly! I#RL deals with as$ects of life in $eacetime that are not regulated

&y I#L! such as freedom of the $ress! the right to assem&ly! to ote and to

stri3e.

)oday there can no longer &e any du&iety international humanitarian law and

international human rights law are near relation. )his off4re$eated o&ser ation

must now &e acce$ted &y al+l. Gany &elie e that the close relationshi$&etween those two e8isted and was $ercei ed 6from the outset7. )he

relationshi$ &etween humanitarian law and human rights are ela&orated.

)he term I#L: is a relati ely new term of international law which a$$lied to

those rules of int:l law with an aim to $rotect $ersons suffering from the e ils

of armed conflicts.

In the early +2/=s the ICRC first used the term to denote the law of <ene a

Con ention which $re iously had &een considered sim$ly a $art of the law.

)he term humanitarian law was first $ro$osed &y "ean Pictet who is

recogni9ed as the father of Godern International #umanitarian Law.

According to him 6#umanitarian law is that considera&le $ortion of

international law which is ins$ired &y a feeling for humanity and is centered

on the $rotection of the indi idual in time of war7.




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International #umanitarian Law is &ased on the norms of international laws

rather than national constitutions and munici$al laws. It refers to int:l rules!

whether of con entional or customary origin! that are s$ecifically designed to

resol e humanitarian $ro&lems resulting from armed conflicts international or

otherwise. )he historical de elo$ment of International #umanitarian Lawshows that it is consisted of con ention! declarations! regulations etc. ado$ted

mainly in <ene a and )he #ague. Godern International #umanitarian Law is

em&odied $rimarily in the four <ene a Con ention of +2-2 and two Protocols

of +211 and in rules of customary law.

In contrast! #uman rights! which were ty$ically called the rights of man or

natural rights! are those rights which are uni ersally inherent in iola&le and

inaliena&le rights of all mem&ers of human family which $rimarily the stateare to ensure to their citi9en &y $ro iding a well defined $rocedure.

)homas Paine may ha e &een the first to use the term human rights! in his

English translation of the French Declaration of the Rights of Gan ado$ted &y

the national Assem&ly of France in +1 2 which $refaced the constitution of

+12+.

)he idea of human rights to a great e8tent e ol ed as a result of $olitical

a&solutism since rights of man &ecame a slogan against the in5ustices andindignities committed &y tyrannical or des$otic go ernments. It was

de elo$ed as a $art of the constitutional law of the indi idual states. )he

classic doctrine of international law had no $lace for human rights at all.

According to %$$enheim! 6the so4called rights of man cannot en5oy any

$rotection under international law! &ecause that law is concerned solely with

the relations &etween states and cannot confer rights on indi iduals7.

#uman rights $rimarily concerned relation &etween states and their own

nations! an area 6traditionally regarded as a domestic matter7. #uman rights!

in fact! did not enter the field of international law until the end of World War

II. )he atrocities committed during that war ser ed as the catalyst for

international concern for human rights and radically changed the theory and

$ractice of the law of nations. )hus! international concern with human rights is

a contem$orary de elo$ment! dating largely from the Second World War.




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%fficial lin3 &etween #uman Rights and #umanitarian Law>

Des$ite the 3een interest in international guarantee of human rights in the

years following World War II! no connection &etween human rights and

humanitarian law was recogni9ed for many years. )he 'ni ersal Declaration of #uman Rights +2- or the Euro$ean Con ention for the $rotection of #uman

Rights and Fundamental Freedoms! +2/= does not refer to the rights of

enemy nationals in time of war. )he '( int:l law commission in +2-2 decided

not to include the law war among the su&5ect of its concern.

(ot until +2 + was a lin3 officially esta&lished &etween human rights and

humanitarian law the international conference on human right! con ened &y

the 'nited (ations at )eheran ado$ted a resolution that called for meaningfula$$lication of further agreements.'nder the title human rights in Armed

conflict the resolution initiated '( action on humanitarian law. Although the

'nited (ations s$o3e of human rights! it meant humanitarian law. It is thus!

seen that Jhumanitarian law is coming to &e recogni9ed as the $articular

&ranch of human rights law which relates to human rights in times of armed

conflictJ.

)he relationshi$ &etween these two &ranches of international law &ecame$articularly o& ious in the war of national li&eration. Peo$le encased in such

was fought for self4 determination! which is recogni9ed as a human right in

the international con ersions! and for recognition as a $arty to an

international armed conflict to which humanitarian law is a$$lica&le. )hus

6attem$ts at self4determination trigger &oth human rights and humanitarian

law ;uestions J.

Im$act of #uman Rights on #umanitarian law>

#uman rights con entions ha e influenced humanitarian law! &ut the con erse

has not &een true. )he influence of the 'ni ersal Declaration of #uman

Rights! +2- ! the four <enera Con entions of +2-2 is a$$arent. )he strongest

im$act of human rights con entions on humanitarian law howe er may &e

seen in the two $rotocols of +211! which su$$lemented the con entions of

+2-2. Se eral $ro isions in the two Protocols of +211 are dirty deri ed from

the ICCPR! +200 $articularly article 1/ of Protocol I and article - 0 of

Protocol II.

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)he con ergence of humanitarian law and human rights those that war and

$eace! ci il war and international war as well as international law and

domestic law are increasingly intertwined. Conse;uently! the law of war and

the law of $eace! as well as humanitarian law and human rights! which were

originally clearly distinct in sco$e! are now often a$$lica&le simultaneously. /

5 %ee. &.B.M. Ma'i(ul )slam $a*wari, $rinci+les o' )n*erna*ional Humani*arians aw&n -rien*ed $ers+ec*i"e, 8




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Res$ecti e fields of a$$lication>

)he humanitarian con entions are a$$lica&le in armed conflicts. )he

con entions $rotect $ersons of enemy nationality! or in the case of internal

armed conflict! mem&ers of the o$$osition $arties within the country. )heo&5ect of International #umanitarian Law is to regulate hostilities in order to

attenuate their hardshi$s.

International #umanitarian Law includes international legal settlement of

armed conflicts and $rotection of their ictims! &ecause in all cases when

armed conflicts &rea3 out! the o&5ect of the international law community

should &e their utmost humani9ation! termination and $ro ision of assistance

to the ictims. In $ursuing this $olicy the international law community has

wor3ed out the <ene a Con ention for the $rotections of war ictims and

Protocols Additional to these con entions. ?+211@.

%n the other hand! human rights con entions howe er! in $rinci$al a$$ly

during $eacetime as well as in armed conflicts and $ersons within the

"urisdiction of a state. In actual $ractice the #uman Rights con entions ha e a

ery limited a$$lication to armed conflicts. #uman Rights Con entions contain

clauses $ermitting the ratifying states to derogate their o&ligations in times of

$u&lic emergency on war. In most armed conflicts! therefore! the ma5ority of

human rights may &e sus$ended.

Su&stanti e Rights>

A com$arison of the su&stanti e rights guaranteed &y humanitarian law and

&y human rights con entions results in three categories of rights.

Firstly! some rights are common to &oth human rights and humanitarian law.

Among these rights are the $rohi&itions of iolence to the life! health or

$hysical or mental well &eing of $ersons! torture and other inhuman treatment

and the guarantees of a fair 5udicial $rocedure in the case of $enal

$rosecution.

Secondly! there are some rights which are s$ecific to the human rights

con entions &ut that ha e no rele ance to armed conflicts. Among these

rights are the economic! social and cultural guarantees of the International

Co enant on Economic social li&erties such as the freedom of e8$ression and

association! the right to marry etc.




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)hirdly! there are some rights which are s$ecific to the humanitarian Law

?Con entions@ &ut a$$lica&le in armed conflict! these rights are intended to

$rotect the wounded and a sic3 mem&er of the armed forces! $risoners of

wars! ci ilian internees and other $ersons.

)hus! the su&stanti e rights guaranteed &y humanitarian law and human

rights con entions demonstrate similarities and dissimilarities &etween

humanitarian law and human rights law.

Enforcement mechanism>

)he enforcement mechanism of human rights and humanitarian law are

different in nature. #uman rights may &e enforced &y the international Lawtri&unal $ro ided the domestic remedies ha e &een e8hausted. For this

com$laints to &e made &y a contracting $arty or &y the indi iduals whose

rights ha e &een infringed.

%n the other hand! humanitarian law may &e $rotected through the $rotecting

$ower and H or the ICRC. %nly in few cases it can &e enforced &y the 5udicial

authority.

Status under international legal system>)he relationshi$ &etween international #umanitarian Law and #uman Rights in

International Law are o&scure and will $ro&a&ly remain a matter of

contro ersy for some time. Se eral 5urists ha e offered $ro$osals to alle iate

this $ro&lem. )here are three iews in this regard4

According to Pictet JInternational #umanitarian Law should com$rise &oth

human rights and humanitarian Law!J But his agreements can not &e acce$ted

on the ground that International #umanitarian Law is used for Law of armed

conflict and not for human rights.

According to A.#. Ro&ertson! J #umanitarian Law is one &ranch of the Law of

#uman Rights! and human rights afford the &asis for humanitarian LawJ

Similarly <.I.A.D. Dra$er considered humanitarian Law as a regime of human

rights ada$ted to the $articular needs of armed conflicts.

)here is another iew which is o$$osite to that mentioned a&o e. According to

this iew! humanitarian Law and human rights regulate different su&5ects and




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are of a different nature. In #enry Geyrowit9Ks o$inion! the ideological

contro ersies e8isting with regard to human rights confusing humanitarian law

with human rights is dangerous for humanitarian law.

)he Philoso$hy of #umanitarian law and human rights>

International #umanitarian Law is increasingly $ercei ed as $art of human

rights a$$lica&le in armed conflict. It was de elo$ed at a time when recourse

to force was not illegal as an instrument of national $olicy. Although it is true

that one of the influences on the de elo$ment of the law in Euro$e was the

church 5ust war doctrine! which also encom$assed the 5ustice resorting to

force the foundations of international #umanitarian Law were laid at a time

when there was no disgrace in &eginning a war. )he law was therefore! inlarge $art &ased on the a$$ro$riate res$ect that was due to another

$rofessional army. We will here as a good illustration of the $hiloso$hy

underlying the customary law of the war the Lie&er Code of as this Code

was used as the $rinci$al &asis for de elo$ment of the #ague Con entions of

+ 22 an +2=1 which in turn influenced later de elo$ment.

)he rele ance of war &eing a lawful acti ity at the time is reflected in Art.01 of

the Lie&er Code>

J)he law of nations allows e ery so ereign go t. to ma3e war u$on another

so ereign state! and there are admits of no rules or laws different from those

of regular warfare! regarding the treatment of $risoners of war! although they

may &elong to the army of a go t. which the ca$tor army consider as a

wanton and un5ust assailant.7

)he Lie&er Code was regarded at the time as generally reflecting customary

law although in $laces it $articularly stressed the im$ortance of res$ecting

humanitarian treatment which! in $ractice was not always accorded.

'nli3e human rights law! howe er! there is no conce$t of derogation in

humanitarian law. Derogation in human rights is allowed in most general

treaties in times of war or other emergency threatening the life of the nation.

#umanitarian law is $recisely for those situations! and he rules are fashioned

in a manner that will not undermine the a&ility of the army in ;uestions win

the war.




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International #umanitarian Law indicates how a $arty to a conflict is to

&eha e in relation to $eo$le at its mercy! where human rights law are

concentrates on the rights of the reci$ients of a certain treatment. In the

a$$earance of the treaty International #umanitarian law seems long andcom$lies where as human rights treaties one com$arati ely short and sim$le.

Conce$tual similarities are $resent day &etween humanitarian rights law>

#a ing loo3ed at the origins and formulation of these two areas of law! we can

now turn to their $resent method o inter $erdition and im$lementation. )he

most im$ortant change as far as humanitarian law is concerned is the fact

that recourse to war is not longer a legal means of regulating conflict. Ingeneral humanitarian law is how less $ercei ed as a code of honour for

com&atants than as a means of s$aring non4 com&atants as much as $ossi&le

from the horrors of war. From a $urist human rights $oint o iew! &ased as it

is on res$ect for human life and well &eing the use of force is in itself a

iolation of human rights. )his was indeed stated at the +20 #uman rights

conference in )ehran as follows>

6Peace is the underlying condition the full o&ser ance of human rights and war

is their negation.J)he most im$ortant general o&ser ation to &e made is thud li3e human rights

law! humanitarian law is &ased on the $remise that the $rotection accorded to

ictims of war must &e without any discrimination. )his is such a fundamental

rule of human rights that it is s$ecified not only in the '( charter &ut also in

all human rights treaties. %ne of many e8am$les is humanitarian law is Art.

21 of the fourth <ene a Con ention of +2-2>

6all $rotected $ersons shall &e treated with the same consideration &y the

$arty to the conflict in whose $ower they are! without any ad erse distinctions

&ased! in $articular or race! religion on $olitical o$inion.J

)he mutual influence of human rights and #umanitarian Law>

)here are two 3inds of reasons for the almost total inde$endence of

International #umanitarian Law rights law immediately after the World War II.

)he first relate to the genesis and de elo$ment of the &ranches concerned.




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#owe er! their $resent con ergence! as descri&ed earlier! ma3es the

esta&lishment of certain closer lin3s &etween two legal domains concei a&le.

In the connection! Art. common to the four <ene a Con entions is

re ealing. Giniature treaty within the Con entions Common Art. lays down

the &asic rules which states are re;uired to res$ect when confronted witharmed grou$s on their own territory. It thus humanitarian law which in

$rinci$le! did not &etween itself with the relations &etween a state and it:s

nationally. )he true turning $oint when International #umanitarian Law and

human rights gradually &egan to draw closer came in +20 during the

International conference on #uman Rights in )eheran! at which the '( for the

first time considered the a$$lication of human rights in armed conflict. )he

interlin3ing of human rights and humanitarian law can also &e seen in the

wor3 of &odies res$onsi&le for monitoring and im$lementation internationallaw.

In the connection it is interesting to not that in recent years the Security

Council has &een citing humanitarian law more and more fre;uently in su$$ort

of its resolutions. )he latest e8am$le of this tendency can &e found in

Resolution ?+22 @ on the conflict in the former ugosla ia! in international

tri&unal for the $rosecution of $ersons res$onsi&le for serious iolations of

International #umanitarian Law committed in the territory of the formerugosla ia since +22+.J

A &ody more s$ecifically concerned with the im$lementation of human rights

the commission an #uman Rights! li3ewise no longer hesitates to in o3e

humanitarian law to &ac3 u$ its recommendations. )he re$ort on the situation

of human rights in uwait under Ira;i %ccu$ation at its - th session is a clear

e8am$le.

Con"$usion:






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Bi+$iography

Boo,s

A.B.G. Gafi9ul Islam Patwari Principles of International Humanitarian

law: An riental Perspecti!e ! Second Edition ,==1! ?Dha3a> Galli3aPu&lishing #ouse@.

"a aid Rehman International Human "i#hts $aw: A Practical

Approach% First Edition ,== ! ?London> Pearson Education Ltd.@.

Gd. "ahid #ossain Bhuiyan! Prof Louise Doswald Bec3 Prof A9i9ur

Rahman Chowdhury International Humanitarian $aw 4 An Antholo#&%

First Edition ,==2! ?India> Le8is (e8is@.

*e+site

htt$>HHwww.icrc.orgHWe&HEngHsiteeng=.nsfHhtmlHsectionOihlOandOhumanOright

s




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Bi+$iography

Boo,s

A.B.G. Gafi9ul Islam Patwari Principles of International Humanitarian

law: An riental Perspecti!e ! Second Edition ,==1! ?Dha3a> Galli3aPu&lishing #ouse@.

"a aid Rehman International Human "i#hts $aw: A Practical

Approach% First Edition ,== ! ?London> Pearson Education Ltd.@.

Gd. "ahid #ossain Bhuiyan! Prof Louise Doswald Bec3 Prof A9i9ur

Rahman Chowdhury International Humanitarian $aw 4 An Anthology!

First Edition ,==2! ?India> Le8is (e8is@.

*e+site

htt$>HHwww.icrc.orgHWe&HEngHsiteeng=.nsfHhtmlHsectionOihlOandOhumanOright

s

Documents

Human Rights and Humanitarian Law