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Human Right Law(HRL) and International Humanitarian law (IHR)

Updated: Apr 21

The relationship between International Humanitarian Law (IHL) and Human Rights Law (HRL) is a subject of significant importance in the realm of international law. While both IHL and HRL share the common goal of protecting the rights and dignity of individuals, they operate in distinct ways and under different circumstances. This article explores the origins, similarities, and differences between IHL and HRL, the interplay between these two legal frameworks, and the implications for the protection of individuals during armed conflicts and beyond.


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Human right and Humanitarian Law

Origins and Nature of Human Right Law(HRL) and International Humanitarian law (IHR)


IHL, with its origins dating back to ancient customs and codes of conduct during armed conflicts, was formally codified in the 19th century. Influenced by Henry Dunant, the founder of the International Committee of the Red Cross, IHL focuses on regulating the conduct of parties involved in armed conflicts, emphasizing the protection of civilians, combatants hors de combat, and the humane treatment of prisoners of war.


On the other hand, HRL is a more recent development, emerging primarily after World War II under the auspices of the United Nations. It is rooted in national human rights declarations influenced by Enlightenment-era ideas, such as the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen. HRL centers on the protection of individuals' rights and freedoms at all times, whether during peacetime or armed conflicts, emphasizing the inherent rights of all human beings.


Distinctive Features of IHL and HRL

The differences between Human Right Law(HRL) and Interantional Humanitarian law (IHR) are evident in their formulation, scope, and application:


IHL Formulation:

  • IHL is formulated to regulate the conduct of parties involved in armed conflicts, whether international or non-international. It primarily concerns the treatment of individuals who are directly affected by armed conflict.

  • The core principles of IHL revolve around mitigating the suffering caused by war, emphasizing rules of engagement, treatment of combatants and non-combatants, and the protection of civilians.


HRL Formulation:

  • HRL is formulated to protect the inherent rights and dignity of all individuals, regardless of the circumstances. It focuses on the rights and freedoms that every person possesses by virtue of their humanity.

  • Human rights treaties are framed as declarations of entitlements, with each article enumerating specific rights, such as the right to life, freedom from torture, freedom of expression, and so on.


Length and Complexity:


IHL Length and Complexity:

  • IHL treaties and conventions tend to be comprehensive and detailed due to the intricacies of regulating armed conflicts. The Geneva Conventions, for example, consist of hundreds of articles.

  • IHL addresses various aspects of armed conflict, including rules for the conduct of hostilities, treatment of prisoners of war, protection of the wounded and sick, and the use of specific weapons.


HRL Length and Complexity:

  • Human rights treaties are relatively shorter and more straightforward in their provisions compared to IHL treaties.

  • HRL treaties typically lay out fundamental rights and freedoms succinctly in a few articles. For instance, the Universal Declaration of Human Rights contains 30 articles that cover a broad spectrum of rights.

Types of Treaties:


HRL Treaties:

  • Human rights law encompasses a wide range of treaties, including both universal and regional agreements.

  • Many human rights treaties distinguish between "civil and political rights" and "economic, social, and cultural rights." For example, the International Covenant on Civil and Political Rights (ICCPR) focuses on civil and political rights, while the International Covenant on Economic, Social, and Cultural Rights (ICESCR) addresses economic, social, and cultural rights.


IHL Treaties:

  • IHL primarily consists of universal treaties that are applicable in armed conflicts worldwide.

  • The four Geneva Conventions and their Additional Protocols are among the key universal treaties that govern the conduct of armed conflicts, irrespective of their nature.

Evolving Concepts:


HRL Concepts:

  • Human rights law has evolved to include "third-generation" human rights, which go beyond traditional civil and political rights.

  • These third-generation rights encompass broader concepts like the right to development, the right to peace, and the right to a healthy environment. They recognize that individual well-being is interconnected with global concerns beyond the scope of traditional human rights.


IHL Concepts:

  • While IHL retains its emphasis on traditional principles of military necessity, humanity, and chivalry, it has also evolved to address contemporary challenges in armed conflicts.

  • Contemporary IHL has incorporated rules related to the protection of the environment during armed conflicts and the prohibition of certain weapons, such as chemical and biological weapons, landmines, and cluster munitions.


Difference between Origins, Scope, and Application

The differences between IHL and HRL extend to their origins, scope, and application:


Origins:

  • IHL originated from notions of honorable and civilized behavior expected from professional armies during armed conflicts.

  • HRL draws from various theories, including religious, natural law, positivist utilitarianism, and socialist movements, to establish the rights of individuals.


Temporal Scope:

  • IHL applies exclusively during armed conflicts, focusing on the conduct of parties involved in such conflicts.

  • HRL applies at all times, addressing the rights and freedoms of individuals in peacetime and during armed conflicts, with some permissible limitations during public emergencies.


Geographical Scope:

  • IHL applies extraterritorially in situations of international armed conflicts and non-international armed conflicts with an extraterritorial element.

  • HRL's extraterritorial application is recognized when a state exercises control over a territory or a person, such as during occupation or detention.


Personal Scope:

  • IHL protects civilians, combatants hors de combat, and prisoners of war, distinguishing between categories of individuals.

  • HRL applies to all persons within a state's jurisdiction without distinctions between combatants and civilians.


Parties Bound:

  • IHL binds all parties to an armed conflict, ensuring an equality of rights and obligations between states and non-state actors.

  • HRL binds only states, as human rights treaties and standards do not create legal obligations for non-state armed groups.


Substantive Scope:

  • IHL and HRL share common rules, such as the prohibition of torture, but also contain distinct provisions.

  • IHL addresses issues like the status of combatants, protection of emblems, and legality of specific weapons, while HRL covers freedoms like the press, assembly, and voting.


Human right and humanitarian law Difference


Interplay of IHL and HRL

The interplay between Human Right Law(HRL) and Interantional Humanitarian law (IHR) is complex, and it has significant implications for the conduct of military operations and the protection of individuals in armed conflicts:


The Lex Specialis Principle:

  • The Lex Specialis Principle is a fundamental concept that guides the interaction between IHL and HRL. It establishes that when two legal frameworks conflict, the more specific or specialized law takes precedence over the more general law.

  • In the context of armed conflicts, the Lex Specialis Principle ensures that IHL, which is specifically designed to regulate behavior during warfare, prevails over HRL, which has a broader application.


International Court of Justice's Advisory Opinion:

  • The International Court of Justice (ICJ) issued an Advisory Opinion in 1996 regarding the "Legality of the Threat or Use of Nuclear Weapons." In this opinion, the ICJ emphasized the application of HRL even during armed conflicts, stating that the right to life, for example, continues to be protected.

  • However, the ICJ clarified that the determination of what constitutes an arbitrary deprivation of life during armed conflicts must be made by reference to the applicable Lex Specialis, which is IHL.


Implications:

  • This advisory opinion highlights the importance of protecting human rights even in the context of armed conflicts. It underscores that IHL and HRL are not mutually exclusive; rather, they work together to ensure the humane treatment of individuals during warfare.

  • The Lex Specialis Principle serves as a mechanism to resolve potential conflicts between these two bodies of law, with IHL taking precedence when the situation involves armed conflict.


IHL's Role in Regulating the Use of Force:

  • IHL provides a legal framework for the conduct of hostilities during armed conflicts. It permits the use of lethal force against enemy personnel and military objectives.

  • IHL recognizes the inherent violence and danger associated with armed conflicts and establishes rules to mitigate harm to civilians and protect combatants who are hors de combat (out of combat).


HRL in Law Enforcement:

  • HRL, on the other hand, primarily governs the use of force in law enforcement and peacetime situations. It emphasizes principles like the necessity of proportionality, the duty to minimize harm, and the capture-rather-than-kill approach.

  • Under HRL, the use of force is restricted to situations where it is necessary to protect life, effect lawful arrests, or maintain public order and security.


Implications:

  • The interplay between IHL and HRL becomes apparent when military operations occur in areas where armed conflict and law enforcement objectives overlap.

  • Armed forces engaged in peacekeeping or counter-terrorism operations, for instance, must navigate the distinct rules of engagement provided by IHL and HRL. They may need to apply different standards when dealing with combatants and civilians in such complex environments.


Treatment of Detainees in IHL and HRL:

  • Both IHL and HRL provide rules on the humane treatment of detainees and the conditions of detention.

  • IHL, particularly during armed conflicts, allows for the detention of combatants, prisoners of war, and other individuals for imperative reasons of security. It also specifies certain procedural safeguards.


Judicial Review in HRL:

  • In HRL, individuals have a right to judicial review of their detention under normal circumstances. This is a cornerstone of the rule of law and due process.

  • HRL requires that individuals detained for any reason, such as suspected criminal activity, have access to legal representation, a fair trial, and the right to challenge the lawfulness of their detention before a competent judicial authority.


Implications:

  • The interplay between IHL and HRL regarding detention is particularly relevant in situations where individuals are detained during armed conflicts but are not subject to criminal prosecution.

  • IHL permits non-criminal internment during armed conflicts to prevent security risks, often without immediate judicial review. However, HRL requires judicial oversight and due process rights, which may become applicable once the armed conflict ends or in areas not directly affected by hostilities.


The interplay between International Humanitarian Law (IHL) and Human Rights Law (HRL) is complex and multifaceted. It underscores the need for a balanced approach that ensures the protection of human rights, even in the context of armed conflicts. The Lex Specialis Principle guides this interaction, with IHL taking precedence during armed conflicts. Nevertheless, the relationship between these legal frameworks remains essential for safeguarding the rights and dignity of individuals in diverse and challenging situations, including those involving the use of force and detention.

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