COMPARITIVE OVERLOOK-INTERNATION HUMANITARAN LAW WITH INTERNATIONAL HUMAN RIGHTS LAW

“If international law is the vanishing point of law, the law of war is at the vanishing point of international law”.[1]

The concept of International Humanitarian Law remains poignant as contemporary armed conflicts, particularly those involving organised armed groups, continue to entail systematic non-compliance with International Humanitarian Law. All too often such violations occur with impunity. Another problem is lack of knowledge of these provisions, among practitioners and belligerent parties.

Insofar as it incorporates the law of war, international humanitarian law may overlap with International Human Rights Law.  The paper comparatively analyses both fields of international law as both share a common foundation in the principle of respect for human dignity and concludes with a balanced legal output.

The paper grossly focuses upon several perspectives of the law and how widely it could be applied, not concluding futile. More needs to be done to disseminate the pertinent provisions ensure their proper implementation at domestic level. Cooperation among States, the various components of the Movement and other humanitarian actors is also essential for providing effective humanitarian assistance for civilians in need.

INTRODUCTION

International Humanitarian Law (IHL) and human rights law are complementary. They both protect human dignity, though they do so in different circumstances and in different ways. Human rights law applies at all times and in all circumstances, and it concerns all persons subject to the jurisdiction of a State. Its purpose is to protect individuals from arbitrary behaviour by the State. Human rights law, therefore, continues to apply in times of armed conflict. However, human rights treaties, such as the International Covenant on Civil and Political Rights, the European Convention and the American Convention on Human Rights authorize derogations under stringent conditions from some rights in time of “public emergency which threatens the life of the nation,” of which armed conflict is certainly an example.[2]

International Humanitarian Law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. 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. International Humanitarian Law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions – in customary rules, which consist of State practise considered by them as legally binding, and in general principles. International Humanitarian Law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter[3].

As it applies only in exceptional circumstances, no derogations are allowed. Many provisions for international armed conflicts, but far fewer apply to non-international armed conflicts. The principal purpose of IHL is to protect the life, health and human dignity of civilians and combatants no longer involved in hostilities (captured, wounded or sick combatants), and to limit the rights of parties in conflict to use methods of warfare of their choice. The aim is to limit the suffering and damage caused by armed conflict.[4]

International human rights law and international humanitarian law are parallel and complementary branches of international law with their distinct and distinctive supervision arrangements. In the conflicts taking place in the world today, both the institutions of international humanitarian law and international human rights law are called upon to apply and uphold international humanitarian law[5].

 

THE IMPACT OF HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW

It is often argued, especially by human rights-oriented lawyers, that the method of customary law formation in the field of human rights and international humanitarian law is structurally different from the traditional method of customary law formation in public international law.[6] Whereas the latter requires both consistent State practice and opinio juris [7], the former would allow  opinio juris to play a more important role than State practice, which is often defective as far as human rights and humanitarian law are concerned. If State practice is played down, human rights and humanitarian rules may obviously more easily be identified as customary norms. This then widens the protective net cast by relevant treaty law, a process that was not expected in the early years of international human rights protection[8].

As such mechanisms gain influence in international society and acquire the potential to be “a significant weapon in the armoury of world order”,[9] a key question that has not yet been fully addressed is whether a minimum formal standard of proof (or degree of certainty) exists or is required when such bodies adjudicate on such serious matters. If a standard exists (or should exist), the question to be answered is at what point between conjecture and absolute certainty should such a threshold of certainty lie[10]?

 

As one legal expert commented:

“The underlying question paramount to the issue of concluding ‘undisputedly’ that certain facts and alleged violations are correct is the standard of proof required. However, this standard of proof greatly varies according to the mandate and procedure in which the fact-finding process takes place.”[11]

THE IMPACT OF THE HUMAN RIGHTS AND HUMANITARIAN LAW METHOD OF CUSTOMARY LAW: FORMATION ON GENERAL INTERNATIONAL LAW

Clearly, doctrinal rigour is not of utmost importance for modern positivists: treaty practice, custom and general principles are liberally combined so as to achieve the desired result: increased promotion and protection of human rights[12]. Does such a method truly deserve the epithet ‘positivism’ (whether modern or not)? 

It should be recalled that, while general principles of law are a positive source of law, they are undoubtedly the source of law most open to moral influences. As Simma and Paulus admit, ‘the ethical standpoint of the observer – and the lawyer – will almost necessarily inform the answers provided … in the application of general principles of law.’ If the existence of general principles is in essence in the ethical eye of the beholder, subjectivity, anathema to ‘objective’ positive law, seems to prevail[13].The moral imperative of putting an end to impunity serves, for instance, as the basic source for a finding of criminal responsibility for individuals who have committed war crimes in internal armed conflicts, or for the legality of exercising universal jurisdiction over such crimes. International practice is subsequently selectively resorted to so as to bring a foregone moral conclusion to an acceptable legal level, to cloth moral considerations in a supposedly ‘legal form’. Deduction trumps induction, the preferred method of legal positivism[14]

In the field of international human rights and humanitarian law, classical positivism appears to have given way to a more ethics-based ‘modern positivism’. As Schachter has indeed pointed out, ‘it would not be inappropriate to consider [human rights] norms as a species of ‘higher law’ evidenced by the positions taken by the generality of governments and by the juridical bodies.’[15]

 Norms may be elevated to ‘higher law’ if they constitute ‘prohibitions of State conduct that are strongly supported and important to international order and human values.’[16]

 Because of their importance, the formation of these norms should not strictly follow the ordinary consensualist rules of international law-formation. Human rights are the prime candidates for this ‘higher law ‘approach, as ‘at the very heart of the human rights movement is the postulate that the fundamental rights which are recognized by the international community are superior to the claims of governments.’[17]

CO-EXISTENCE OF INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW

International Humanitarian Law (hereafter IHL) and International Human Rights Law (HRL) undoubtedly share some kinship. Yet, most international lawyers and judges, confronted with the simultaneous application of these two sets of norms have made a resort to the principle lex specialis derogat generali. Their use of that principle has presupposed that norms of IHL and HRL belong to the same legal order and the same legal regime and are, at the surface, in conflict with one another. There are presuppositions and showed that the relations between IHL and HRL ought to be construed in terms of competition rather than conflict. lex specialis derogat generali – particularly witnessed in the case-law of the ICJ – to calibrate the systemic integration of international law. It concludes that such an unorthodox use of that principle does little to alleviate the uncertainty inherent in the competitive character of the relationship between IHL and HRL.[18]

In a subsequent Advisory Opinion, on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court reaffirmed that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, “there are thus three possible situations:  some rights may be exclusively humanitarian matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law[19].

The International Committee of the Red Cross has developed, over the years, well considered and professional approaches for interpreting and responding to breaches of international humanitarian law and the High Commissioner must be mindful of this in pondering how to deal with any particular situation. Situations must be handled on the basis of principles, first of International Humanitarian Law, second of International Human Rights Law, and principles of coexistence regarding institutions of International Humanitarian Law and International Human Rights Law[20].

CASE-BY-CASE INQUIRY, ONGOING ANALYSIS

The coexistence of IHL and IHRL should not be uncritically assumed: instead, practitioners should build upon the framework developed by scholars such as Ben-Naftali and Shany in locating precisely where the two legal regimes conflict, and where innovative interpretations of the law can enhance the scope of protection. In situations where IHRL provides greater detail to fill gaps in IHL, or where one body of law influences the application of the other, practitioners may push forward and strengthen the legal methodologies illustrated here to create a more meaningful and robust system of legal protection and enforcement for civilians living in occupied territory[21].

FUNDAMENTAL STANDARDS OF HUMANITY: A COMMON LANGUAGE OF INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS LAW

The changing pattern of modern armed conflict makes it difficult sometimes to apply the established rules of international law related to the use of force and the protection of victims of armed conflict. They were developed essentially for regular armies in the battlefield or in occupied territories. The main corpus of the laws of war and International Humanitarian Law (IHL) is primarily framed on the concept of state obligations and enemy powers (usually another state or group of states)[22]. It is a state-centered system of legal rules, whose obligations lie on states more than on individuals. However, this system has been significantly influenced by Human Rights Law (HRL), in particular after the Second World War, and more recently by legal developments under international criminal law[23].

One of the main issues related to the distinction between IHL and IHRL is their applicability in different circumstances. It is generally accepted today that the strict traditional distinction between law of war, implying the application of IHL, and law of peace, when HRL should be applied, is not viable any more. From the legal point of view the problem consists in defining which rules are applicable, in particular when the nature and classification of the conflict, internal violence or international military action is unclear. Common Article 2 to the four 1949 GC defines its applicability in case of an international armed conflict “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.” the 1949 Geneva Conventions (GCs)[24] will apply also in case of “partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no resistance.”[25]

In case of non-international armed conflict, the applicable rules are mainly those provided by the common Article 3 to the four GCs and the 1977 Additional Protocol II[26].The main problem of both rules is that they set a quite high threshold of the level of violence, so that the possible cases of application are quite limited.[27]

But situations of violent conflict are not limited to the inter-state and intra-state violence. The United Nations, mainly during the 1990s, has been increasingly involved in peace-keeping operations[28]. Other international organizations, such as the North Atlantic Treaty Organization (NATO), the European Union (EU),the Organization for Security and Cooperation in Europe (OSCE), the Organization of American States (OAS), and the African Union (AU) have deployed military missions, under different names and mandates, to foreign countries, mainly under the umbrella of collective security and humanitarian protection in case of gross violations of human rights[29]. So-called “coalitions of the willing” have been established to fight international terrorism, sometimes using military means, and under the right to self-defence against a military attack. This activity has been defined as “war” against terrorism,[30] an expression with unclear legal meaning[31] and possible dangerous consequences in terms of legal protection not only under IHL but also under HRL.These situations, sometimes defined as forcible methods short of war[32], were not foreseen by traditional IHL and the application of international legal rules in the mentioned cases has not always been clear, due to their uneasy classification under international law[33].

Problems in Legal Protection

On the one hand, IHL is applicable for the protection of those taking part in the Hostilities and the civilian population in case of international and non-international armed conflict defined before. On the other hand, in situations of civil unrest, riots, etc., which falls below the threshold of Common Article 3 of the GC and AP II, states may proclaim a state of emergency and derogate a relevant part of HRL, but they do not have to apply IHL. In these circumstances, states also enjoy a certain margin of appreciation[34] concerning the characterization of the situation within their borders. Here lies the problem and the high risk of gaps in legal protection of potential victims of violence. It seems from experience that IHL legal instruments are not always adequate to address most present situations of conflict, mainly because standards fixed by IHL itself for their applicability are difficult to be matched in situations of internal violence. In many cases, states’ concern regarding possible political consequences of the application of IHL, implying any possible sort of recognition of dissident armed groups, prevail on the issue of protection of victims in these types of conflict. The civilian population is targeted and no clear rules are applicable in that context. Despite the fact that states have a tendency to use military force in those situations, the rules of IHL, which should at least be known to military personnel, do not always apply. In the meantime, HRL is not generally included in the training for military personnel, despite the fact that they should be the general rules applicable in situations where IHL does not apply[35].

CONCLUSION

One difference between the two bodies of rules, in particular, remains fundamental. Despite developments over past decades which are said to indicate a ‘humanization of humanitarian law’, international humanitarian law, in contrast to human rights law, is not based on an individual rights paradigm. Human rights treaties frequently require review of situations of possible human rights violations; for example, by requiring access to a court to challenge the legality of a person’s detention or obliging States to undertake effective investigations of allegations of torture and arbitrary killing. When individuals consider their rights have been violated, they have an individual right to a remedy; that is to have the matter adjudicated upon, either by a national court or some international body. And if a violation is found, they have an individual right to reparation. This is not to argue that international humanitarian law does not provide for investigations, remedies or reparations; simply that it does not do so at the bequest of individuals. It is this difference, even excluding the differences in the substantive protections accorded individuals under the two bodies of law, which will ensure that individuals continue to bring complaints regarding their treatment in situations of armed conflict before human rights bodies. And even if human rights bodies take the view that States’ human rights obligations in situations of armed conflict are to be interpreted using the yardstick of international humanitarian law, their interpretations of humanitarian law are likely to differ from lawyers advising States’ defence ministries and armed forces, who are likely to continue to be unhappy with such trespasses into what they see as their chasse gardée.

Quietly, almost unnoticed, fundamental principles of human rights have become values protected and enforced by international criminal law. The entire international community may take pride in this development.

Submitted by:
 
RISHIKA SUGANDH 
SHUBHANGI ARORA

 

BIBLIOGRAPHY

Ramcharan Bertrand,” The United Nations High Commissioner for Human Rights and International Humanitarian Law” (2005)3, Harvard University,3-30

Wouters Jan & Ryngaert  Cedric,” The Impact of Human Rights and International Humanitarian Law on the Process of the Formation of Customary International Law”,(2008)121,1-25

Wilkinson Stephen,” Standards of Proof in International Humanitarian and Human Rights Fact-Finding and Inquiry Missions”,10-15

Happold  Matthew,”International Humanitarian Law and Human Rights Law”9-20

WEBLIOGRAPHY

“Standards of Proof in International Humanitarian and Human Rights Fact-Finding and Inquiry Missions “available at http://www.geneva-academy.ch/docs/Standards%20of%20proo%20report.pdf

“International Humanitarian Law and Human Rights”available at http://www.redcross.org/images/MEDIA_CustomProductCatalog/m4640079_IHL_HumanRights.pdf

“What is International Humanitarian Law?”available at http://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf

“International Humanitarian Law and Human Rights Law”available at http://hr.law.vnu.edu.vn/sites/default/files/resources/international_humanitarian_law_and_human_rights.pdf