INTERNATIONAL HUMANITARIAN LAW & INTERNATIONAL HUMAN RIGHTS LAW. ARE THEY ONE AND SAME ??
Author: Chhaya Lalwani, Law College Dhanbad.
The present article highlights two aspects of international law and highlights the aspects of and brings about the relationship between humanitarian and human rights law by comparing similarities and dissimilarities between the two. The brief discussion is provided below, divided into five broad parts.
International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them.
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It regulates the conduct during warfare. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict (JUS IN BELLO)
Both the international humanitarian law (IHL) and human rights law have developed with the objectives of protecting human beings and their dignity, yet some dissimilarities can be found between these two bodies of international law. Many issues are dealt with by IHL what are not considered by IHRL, for example, the conduct of hostilities, the status of prisoners during the war, the protection of some emblems, signs and so on.
Alternatively, many matters are consulted by IHRL which are not subject matters of IHL, for example, freedom of thought, right to movement, right to assembly and others.
IHL started by the adoption of the First GENEVA CONVENTION in 1864 but human rights law started its journey at the national or regional level many more years ago and formally by the Universal Declaration of Human Rights 1948, yet in many respects, they have the similarities. IHL becomes applicable in times of armed conflict. At the initial stage of development of IHL, it was considered that when an armed conflict is started the human rights law goes away and the IHL is applied but this concept has been changed when the International Court of Justice in its Wall Advisory opinion expressed that the protection offered by human rights conventions does not cease in case of armed conflict (International Court of Justice Reports, 2004:136).
For the first time, the International Court of Justice in “its Advisory opinion on the Legality of the Threat or Use of nuclear weapons” 1996 observed that the protection of the ICCPR does to cease to exist during the time of war. In the “2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (the 2004 Wall Advisory Opinion)”, the Court confirmed that IHRL applies to the situations of military occupation. In the next, the Court in “The Democratic Republic of the Congo v. Uganda” case finds that Uganda by violating the principle of the non-use of force in international relations and of non-intervention, it violated the both IHRL and IHL; and that it violated other obligations owed to the Democratic Republic of the Congo. The decisions of ICJ clarify that Human Rights Law applies both in peacetime and in conflicting time. IHL IS APPLICABLE IN PEACE AS WELL AS IN ARMED CONFLICT.
Concept of International Human Rights Law and Humanitarian Law:
- INTERNATIONAL HUMANITARIAN LAW(IHRL)
International Human Rights are those rights that are possessed by a person only for the reason he/she is a human being irrespective of race, caste, color, sex, language, nationality, place of birth, etc. All people male or female, black or white, minority or majority are all equally entitled to their rights without discrimination. These rights are all interrelated, interdependent and indivisible. Human rights law is those rules either written or oral originated from customs, conventions or treaty which works for the protection of human beings and the individual or groups isIndividualsto claim certain rights or benefits from the government under these rules.
- The International Covenants on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights (1966),
- Convention on Genocide (1948),
- Convention against all forms of Racial Discrimination (1965),
- Discrimination against Women (1979),
- Convention against cruelty Torture (1984) and
- Convention on Rights of the Child (1989).
- European Convention for the Protection of
- Convention on Human Rights and Fundamental Freedoms (1950),
- the American Declaration of the Rights and Duties of Man
- Convention on Human Rights (1969), and the African Charter on Human and Peoples’ Rights1981
2. INTERNATIONAL HUMANITARIAN LAW (IHL)
On the other hand, IHL is an important branch of international law that mainly deals with the protection of civilians and victims of armed conflict. This newly named IHL was previously known as the law of war or the law of armed conflict (ICRC, 2004: 1). The international humanitarian law is a set of written and unwritten rules which seek to limit the effects of armed conflict for humanitarian reasons. IHL is that body of documented or undocumented rules which are applied in both International and non-international armed conflict with a view IHL aims to reduce the sufferings of the victims of the armed conflict and to protect those who do not or no longer taking part in the hostilities. Although IHL applies only at the time of armed conflict and IHRL applies both Armed Conflict and peace yet there are some similarities between IHL and IHRL which are noteworthy
INSTRUMENTS OF INTERNATIONAL HUMANITARIAN LAW:
- Geneva Conventions 1864,1906,1929,1949
- Hague Convention 1899,1907
- Weapon treaties
Similarities between International Humanitarian Law and International Human Rights Law:
1. Both IHL and IHRL deal with similar conduct and share common goals with a view to protecting fundamental human dignity and lives. It means both these laws intend to protect human lives and dignity.
2. Both these two branches of international law guarantee respect for life ensuring the physical and mental well being.
3. IHL and IHRL are set of international rules established by customs or treaties and work for the protection of humans and their dignity. Both of them ensure some rights of the individual which can be claimed by individuals and the individuals have the right to ensure them if denied by the State parties are set.
4. It is the responsibility of the state to implement both IHL and IHRL. For proper implementation of IHL, States are the main organ for taking necessary steps of legal and practical both in peace and in conflict. On the other hand to implement IHRL the state is to take immediate and progressive measures including making legislation, establishing a separate judicial body, taking administrative actions, etc.\
5. A good number of parallel provisions can be found in the documents of IHL and instruments of IHRL such as the protection of life, protection from torture, degrading punishment or treatment, arbitrary arrest or detention, discriminations on the ground of race, color, sex, place of birth, religion and so on.
6. Another common thing that exists between the two laws regarding the trial of the violators of either IHL or IHRL. Under IHL if anyone violates IHL then he can be prosecuted before the domestic court or international criminal court if the national court or tribunal shows its unwillingness to try these matters or domestic court or tribunal exists. On the other side, the IHRL also can be enforced by the national court and international mechanisms.
Despite the following similarities, there are many aspects on which these laws contradict hence it becomes important to cite it here. They are as follows :
Differences between Humanitarian Law and Human Rights Law:
1. The scope of IHL treaties is wider in comparison to IHRL treaties. The IHL treaties are mainly international in nature, i.e., all Geneva conventions of 1949 but IHRL treaties are international or regional, for example, the “International Covenant on Civil and Political Rights 1966” is an international document whereas the“European Convention for the Protection of Human Rights and Fundamental Freedoms 1950” in a regional convention.
2. IHRL indicates that restriction on individuals` human rights can be imposed by the state in various situations but no restriction can be imposed on the rights granted under the IHL because IHL is applied only in emergency situations where derogation of rights is not permitted.
3. The principle of reciprocity applies regarding the application of IHL whereas the principle of reciprocity does not apply under IHRL. It indicates that IHL applies to the parties where the parties are a signatory of the humanitarian documents i.e. only when an adversary a party is a party to convention or treaty. By contrast, the provision of the human rights treaty (IHRL) is quite different where a State once accepted the HR treaty-bound to observe the obligations whether the adversary is a party of this convention or not.
4. A further difference between IHL and IHRL that is often pointed out rests on the fact that IHR is centered on the granting of rights to nationals against their states. For example articles 14, 15, 16, 17, 18, 19, 26(2), 27, 28 and many other articles of the Constitution of Bangladesh impose obligations on the state to ensure human rights of its national and if these rights are violated the people has right to enforce them in some cases against the state. While IHL focuses on imposing obligation directly on the individual and ensuring individual rights as well. For example, “article 13 of the Third GenevaConvention provides for the humane treatment of prisoners of war”.
5. IHL or the law of armed conflict applies“in all cases of declared war or of any other armed conflict or all cases of partial or total occupation of the territory of a High Contracting Party (common article 2, Geneva Conventions). But International Human Rights (IHRL) is designed to govern in peacetime and in armed conflict in limited form Rights.
6. For the violation of human rights (IHRL) the injured party may initiate legal proceedings against government officials and agencies to the national court. On the other hand for violation of International Humanitarian Law, violators either government officials or private citizens may be prosecuted before the National court or tribunal like Bangladesh International War Crimes Tribunal or International Tribunal or Court, i.e.International Criminal Court.
7. IHRL aims to establish and maintain democracy and the rule of law in society. They are legally founded and based on the guarantee of freedom and on the welfare of the human person, developing especially in times of peace. On the other hand, IHL seeks to promote civilized behavior in conducting conflicts. It aims to limit the effects of the armed conflicts by imposing restrictions to choose means and methods of warfare.
8. It should be noted that IHL and IHRL do not differ only in terms of origin, but of character too. On the one hand, “IHL, under various names, has existed throughout history and is inherently conservative, taking as a given the armed conflicts”. IHRL, on the other hand, has developed from the democratic revolutions of the late eighteenth century, have always been revolutionary, outrageous in its inception, inspired by the collective action and struggle, and which threaten the existing state order.
9. IHL has a tradition since the nineteenth century when Henry Dunant has started to help the victims of war. It has enriched and developed continuously by many international and national documents namely, “GenevaConvention 1864, St. Petersburg Declaration 1868, Hague Regulations 1899 (especially Convention II and annexes), Hague Regulations 1907, two Additional Protocols of 1977”. Comparatively older approach than humanitarian law. International human rights law(IHRL), on the other hand, is a more recent phenomenon that developed as part of the constitutional law of individuals.
IHRL is an emanation of the subsequent period of the Second World War. It was introduced into the international sphere by The Universal Declaration of Human Rights 1948 and following this document human rights have been incorporated almost in all constitutions of the world. Now human rights
10. International Humanitarian law permits the combatants to use force against the enemy combatants during the conflict, even it allows to kill the persons who take a direct part in the hostilities with a view to weakening the opposite party until they surrender or are otherwise hors de combat but IHRL usually does not permit the use of force except exception, but the right to life most important right, cannot be taken away even in exceptional situations also.
12. The overall development, promotion, and implementation of IHL are mainly supervised by the “International Committee of the Red Cross and Red Crescent Movement” and the development, progress, and implementation of IHRL are supervised by the United Nations or other Human Rights Organizations.
13. The IHL documents mainly the four Geneva Conventions of 12 August 1949, “Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, Geneva Convention (II) for the Amelioration of the Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, Geneva Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949, Geneva Convention (IV) Relative to the Protection of Civilian Persons at Time of War of 12 August 1949,” are universal character as these conventions have been accepted by all countries of the world but IHRL documents are not universal in respect of acceptance.
14. IHL protects all the individuals who do not or are no longer taking part in the hostilities and the persons who are the hors de combat but IHRL being tailored primarily for peacetime applies to all persons whether in peace or during wartime.
The aforesaid discussion reveals that both the international humanitarian law(IHL) and International human rights law (IHRL) are two important branches of international law. Both laws work for the protection of human beings and their dignity. It found that there are many similarities between these two branches of international law yet in some respects IHL and IHRL maintain some differences mainly regarding their scope of application, objects of protection, derogatory principle, enforcement systems, the use of force and responsibilities of the states, universality, sources, and evolution, individual criminal responsibilities, implementation mechanisms and so on and hence they are not one and same.
Another important point has been cleared in this study that the application of IHRL does not cease to exist even after the starting of armed conflict, in some cases both IHL and IHRL applies during the armed conflict or warfare.