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International Humanitarian Law and International Human Rights Law

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Page 1: International Humanitarian Law and International Human Rights Law

ADVISORY SERVICEON INTERNATIONAL HUMANITARIAN LAW____________________________________

International Humanitarian Law andInternational 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 ofindividuals, albeit from a different angle. It is therefore not surprising that, while very different in formulation, the essence of some ofthe 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 protectionof women and children, regulate aspects of the right to food and health. On the other hand, rules of IHL deal with many issues thatare outside the purview of IHRL, such as the conduct of hostilities, combatant and prisoner of war status and the protection of the redcross and red crescent emblems. Similarly, IHRL deals with aspects of life in peacetime that are not regulated by IHL, such asfreedom of the press, the right to assembly, to vote and to strike.

What is internationalhumanitarian law?

IHL is a set of international rules,established by treaty or custom, whichare specifically intended to solvehumanitarian problems directly arisingfrom international or non-internationalarmed conflicts. It protects persons andproperty that are, or may be, affectedby an armed conflict and limits therights of the parties to a conflict to usemethods and means of warfare of theirchoice.

IHL main treaty sources applicable ininternational armed conflict are the fourGeneva Conventions of 1949 and theirAdditional Protocol I of 1977. The maintreaty sources applicable in non-international armed conflict are article 3common to the Geneva Conventionsand Additional Protocol II of 1977.

....and what is internationalhuman rights law?

IHRL is a set of international rules,established by treaty or custom, on thebasis of which individuals and groupscan expect and/or claim certainbehavior or benefits from governments.Human rights are inherent entitlementswhich belong to every person as aconsequence of being human.Numerous non-treaty based principlesand guidelines ("soft law") also belongto the body of international humanrights standards.

IHRL main treaty sources are theInternational Covenants on Civil andPolitical 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 instrumentsare the European Convention for theProtection of Human Rights andFundamental Freedoms (1950), theAmerican Declaration of the Rights andDuties of Man (1948) and Conventionon Human Rights (1969), and theAfrican Charter on Human andPeoples' Rights (1981).

While IHL and IHRL have historicallyhad a separate development, recenttreaties include provisions from bothbodies of law. Examples are theConvention on the Rights of the Child,i ts Optional Protocol on theParticipation of Children in ArmedConflict, and the Rome Statute of theInternational Criminal Court.

When are they applicable?

IHL is applicable in times of armedconflict, whether international or non-international. International conflicts arewars involving two or more states, andwars of liberation, regardless ofwhether a declaration of war has beenmade or whether the parties involvedrecognize that there is a state of war.

Non-international armed conflicts arethose in which government forces arefighting against armed insurgents, orrebel groups are fighting amongthemselves. Because IHL deals with anexceptional situation – armed conflict –no derogations whatsoever from itsprovisions are permitted.

In principle, IHRL applies at all times,i.e. both in peacetime and in situationsof armed conflict. However, some IHRLtreaties permit governments toderogate from certain rights insituations of public emergencythreatening the life of the nation.Derogations must, however, beproportional to the crisis at hand, mustnot be introduced on a discriminatorybasis and must not contravene otherrules of international law – includingrules of IHL.

Certain human rights are neverderogable. Among them are the right tolife, prohibition of torture or cruel,inhuman or degrading treatment orpunishment, prohibition of slavery andservitude and the prohibition ofretroactive criminal laws.

Who is boundby these bodies of law?

IHL binds all actors to an armedconflict: in international conflicts it mustbe observed by the states involved,whereas in internal conflict it binds thegovernment, as well the groups fightingagainst it or among themselves. Thus,IHL lays down rules that are applicableto both state and non-state actors.

IHRL lays down rules bindinggovernments in their relations withindividuals. While there is a growingbody of opinion according to which non-state actors – particularly if theyexercise government-like functions –must also be expected to respecthuman rights norms, the issue remainsunsettled.

International Committee of the Red Cross

Page 2: International Humanitarian Law and International Human Rights Law

Are individuals also bound?

IHL imposes obligations on individualsand also provides that persons may beheld individually criminally responsiblefor "grave breaches" of the GenevaConventions and of Additional ProtocolI, and for other serious violations of thelaws and customs of war (war crimes).IHL establishes universal jurisdictionover persons suspected of havingcommitted all such acts. With the entryinto force of the International CriminalCourt, individuals will also beaccountable for war crimes committedin non-international armed conflict.

While individuals do not have specificduties under IHRL treaties, IHRL alsoprovides for individual criminalresponsibility for violations that mayconstitute international crimes, such asgenocide, crimes against humanity andtorture. These crimes are also subjectto universal jurisdiction.

The ad hoc International CriminalTribunals for the former Yugoslavia andRwanda, as well as the InternationalCriminal Court, have jurisdiction overviolations of both IHL and IHRL.

Who is protected?

IHL aims to protect persons who donot, or are no longer taking part inhostilities. Applicable in internationalarmed conf l icts, the GenevaConventions deal with the treatment ofthe wounded and sick in the armedforces in the field (Convention I),wounded, sick and shipwreckedmembers of the armed forces at sea(Convention II), prisoners of war(Convention III) and civilian persons(Convention IV). Civilian personsinclude internally displaced persons,women, children, refugees, statelesspersons, journalists and othercategories of individuals (Convention IVand Protocol I).

Similarly, the rules applicable in non-international armed conflict (article 3common to the Geneva Conventionsand Protocol II) deal with the treatmentof persons not taking, or no longertaking part in the hostilities.

IHL also protects civilians throughrules on the conduct of hostilities. Forexample, parties to a conflict must at alltimes distinguish between combatantsand non-combatants and betweenmilitary and non military targets. Neitherthe civilian population as a whole norindividual civilians may be the object ofattack. It is also prohibited to attackmilitary objectives if that would causedisproportionate harm to civilians orcivilian objects.

IHRL, being tailored primarily forpeacetime, applies to all persons.

What is the system ofimplementation......at the national level ?

The duty to implement both IHL andIHRL lies first and foremost with states.

States have a duty to take a number oflegal and practical measures – both inpeacetime and in armed conflictsituations – aimed at ensuring fullcompliance with IHL, including :

� translating IHL treaties;

� preventing and punishing warcrimes, through the enactment ofpenal legislation;

� protecting the red cross and redcrescent emblems;

� applying fundamental and judicialguarantees;

� disseminating IHL;

� training personnel qualified in IHLand appointing legal advisers tothe armed forces.

IHRL also contains provisions obligingstates to implement its rules, whetherimmediately or progressively. Theymust adopt a variety of legislative,administrative, judicial and othermeasures that may be necessary togive effect to the rights provided for inthe treaties. This may include enactingcriminal legislation to outlaw andrepress acts prohibited under IHRLtreaties, or providing for a remedybefore domestic courts for violations ofspecific rights and ensuring that theremedy is effective.

...at the international level?

A s r e g a r d s i n t e r n a t i o n a limplementation, states have acollective responsibility under article 1common to the Geneva Conventions torespect and to ensure respect for theConventions in all circumstances. Thesupervisory system also comprises theProtecting Power mechanism, theenquiry procedure and the InternationalFact-Finding Commission envisaged inArticle 90 of Protocol I. States parties toProtocol I also undertake to act incooperation with the United Nations insituations of serious violations ofProtocol I or of the GenevaConventions.

The ICRC is a key component of thesystem, by virtue of the mandateentrusted to it under the GenevaConventions, their Additional Protocolsand the Statutes of the InternationalRed Cross and Red CrescentMovement. It ensures protection and

assistance to victims of war,encourages states to implement theirIHL obligations and promotes anddevelops IHL. ICRC's right of initiativeallows it to offer its services or toundertake any action which it deemsnecessary to ensure the faithfulapplication of IHL.

The IHRL supervisory system consistsof bodies established either by theUnited Nations Charter or by the mainIHRL treaties. The principal UNCharter-based organ is the UNCommission on Human Rights and itsSub-Commission on the Promotion andProtection of Human Rights. "Specialprocedures" have also been developedby the Commission over the last twodecades, i.e. thematic or country-specific special rapporteurs, andworking groups entrusted withmonitoring and reporting on the humanrights situations within their mandates.

Six of the main IHRL treaties alsoprovide for the establishment ofcommittees of independent expertscharged with monitoring theirimplementation.

A key role is played by the Office of theHigh Commissioner for Human Rightswhich has primary responsibility for theoverall protection and promotion ofhuman rights. The Office aims toenhance the effectiveness of the UN'shuman rights machinery, to increaseUN system-wide implementation andcoordination of human rights, to buildnational, regional and internationalcapacity to promote and protect humanrights and to disseminate human rightstexts and information.

...at the regional level?

The work of regional human rightscourts and commissions establishedunder the main regional human rightstreaties in Europe, the Americas andAfrica is a distinct feature of IHRL, withno equivalent in IHL. Regional humanrights mechanisms are, however,increasingly examining violations ofIHL.

The European Court of Human Rightsis the centrepiece of the Europeansystem of human rights protectionunder the 1950 European Convention.The main regional supervisory bodiesin the Americas are the Inter-AmericanCommission on Human Rights and theInter-American Court of Human Rights.The African Commission on Humanand Peoples' Rights is the supervisorybody established under the 1981African Charter. A treaty establishingan African human rights court has notyet come into force.

01/2003

International Committee of the Red Cross