International humanitarian law
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 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.
International humanitarian law covers two areas:
- The protection of those who are not, or no longer, taking part in fighting;
- Restrictions on the means of warfare – in particular weapons – and the methods of warfare, such as military tactics.
International humanitarian law to be found:
A major part of international humanitarian law is contained in the four Geneva Conventions of 1949 nearly every State in the world has
agreed to be bound by them. The Conventions have been developed and supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed Conflicts. Other agreements prohibit the use of certain weapons and military tactics and protect certain categories of people and goods. These agreements include:
- the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols;
- the 1972 Biological Weapons Convention;
- the 1980 Conventional Weapons Convention and its five protocols;
- the 1993 Chemical Weapons Convention;
- the 1997 Ottawa Convention on anti-personnel mines;
The way in which civilians are to be treated when under the authority of an enemy power. This includes the provision of food, shelter and medical care, and the right to exchange messages with their families.
Human rights are the basic rights and freedoms entitled to any person, regardless of economic status, nationality, jurisdiction, age, ability, ethnicity, sex, and sexuality. These basic rights are the right to life, freedom, equality, justice, and freedom of thought and expression.
In 1948, the world community spoke through the United Nations by establishing a framework for human rights awareness and protection with the Universal Declaration of Human Rights (UDHR).
Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.
Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law , general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.
Narrate the relation between humanitarian law and human rights.
If we discuss the following points elaborately, it will be clear to us about the relation between human rights and humanitarian law.
1. Development of the concept:
a) Concept of International Humanitarian law:
Mr. Jean Pictet who had more contributions for the development of int. humanitarian law may be considered as founder of the int. humanitarian law and humanitarian law is new concept and new addition of international law.
Sayings of Mr. Jean Pictet- Int. Humanitarian law is that portion of int. law which is inspired by a feeling of humanity and is centered on the protection of the rights of individual in war time.
Int. humanitarian law has been developed mainly by two conventions, i.e., Geneva Conventions and Heague Conventions.
b) Concept of Human Rights:
Human rights has been developed by different countries constitution as one of the parts of that constitution but it has no place in the int. law and according to Oppenheim we know that int. law mainly deals the relationship with one state to other state and there is no provision in int. law about so-called rights of a man and enjoyment and protection of those rights.
Usually human rights are ensured for the citizens by the every concerned state by making laws, i.e., Bill of Rights’ 1688(England), Declaration of America’s Independence’1776 and French Declaration of the Rights of Man and citizens’ 1789.These Declarations are related with rights of the concerned state people.
After 2nd world war human rights has been developed internationally by different international instruments.
Human rights are considered as universal, inherent, non-transferable and non-violative rights.
2. Official link between human rights and humanitarian law:
After 2n world war there was no relationship between human rights and humanitarian law till more times.
There was no provision regarding humanitarian law in Universal Declaration of Human Rights’1948 and European Convention on human rights’ 1950.
In 1949 International Law Commission of United Nations also suggested not to include the law of war in human rights.
In 1968 in Tehran International Conference was held about human rights in armed conflict by United Nations and in this conference UNO was specially assigned to take proper steps regarding protection of human rights in war time.
So, it can be said that humanitarian law is one of the branches of human rights which deals mainly the protection of the rights of men in war time.
The war of Vietnam, Niger, Middle-east, India, Pakistan etc inspired the word community to take initiatives regarding the protection of the rights of men in war time.
So, in the time of armed conflict, humanitarian law is so closely related with human rights.lmpact of human rights on humanitarian law:
In maximum cases the humanitarian law is influenced by the conventions of human rights. The four Geneva Conventions’1949 were accepted by following Universal Declaration of Human Rights’ 1948.
The two Optional Protocols’ 1977 were accepted by observing the Covenant on Civil and Political Rights’1966.
4. Respective Fields of Application:
Humanitarian law is mainly applied in the time of international conflict as well as in time of internal armed conflict, but human rights is applied in the peaceful time and the main function of the human rights is to protect the rights of the citizens of concerned slate and the main obligation of the member state of int. conventions is to execute the human rights.
As human rights is internal matter of the state, human rights arc suspended in the state emergency period but Common Article-3 of 4 Geneva Conventions and two Optional Protocols are applied in the time of internal armed conflict.
5. Substantive Rights:
Some rights are recognized by human rights laws and humanitarian law laws, i.e., prohibition to all sorts of attack to life, prohibition to attack to physical and mental health, prohibition to any sorts of oppression and inhuman behavior and surety to neutral judicial proceedings regarding criminal offence etc.
Some rights are exclusively recognized by human rights laws, i.e., surety to execution of social, cultural and economical rights mentioned in the covenant on social, cultural and economical rights’1966 and surety to some personal liberties like-freedom of speech and assembly, right to marriage and surety to some political rights etc.
Some rights are recognized by humanitarian laws only, i.e., security to life, prohibition to inhuman behavior and surety to personal liberties like-protection of the rights of wounded and sick combatants at armed conflict, war prisoners, civilian and imprisoned persons in war period etc.
So, we can say that there are some similarities and dissimilarities between human rights and humanitarian law which is clear and manifest to us by above discussion.
6. Enforcement nicehimism:
There is no specific mechanism for execution of int. humanitarian law. According to humanitarian laws, any neutral state or ICRC (Internal Committee of Red Cross) may play “vital role for execution of humanitarian laws. It is really rare to execute humanitarian laws by judicial proceedings.
Every concerned state is mainly assigned by constitution and ordinary laws to protect human rights. If any state fails to protect human rights, then human rights may be executed my Int. or Zonal Tribunal.
7. Status under International Legal System:
In 1966 one of the famous jurists who is considered as the founder of int. humanitarian law remarked that’ “International humanitarian law comprising both human rights and humanitarian law”.
The other jurist namely A.H.Robertson manifestly said that humanitarian law is one branch of the law of human rights, and … human rights afford the basis for humanitarian law.
One of the other jurists namely G.I.A.D. Draper said that humanitarian law is one of the chapters of human rights.
The Interaction between Human Rights and Humanitarian Law:
The interaction between international human rights law and international humanitarian law raises multiple problems. However, the recent developments produced by events such as the conflicts in different parts of the world, for instance in Iraq, Palestine and Afghanistan, and the consequent jurisprudence of national and international tribunals, require addressing the conceptual and normative framework of the interaction of these two fields of international law. Last decade especially brought about the range of developments which testify that this issue will not only be part of he academic exercise but will frequently if not regularly facing those who will be dealing with the legal aspects of the relevant situation in practice.
The Aspects of the Emergence and Operation of Norms
1. Sources of International Law
Sources of international law are normally based on the consent of States: they embody norms that have been agreed and accepted by States. The acceptance of human rights and humanitarian norms is on the one hand demonstrated by the number of treaties on this subject, such as UN Human Rights Covenants, regional human rights treaties or the 1949 Geneva Conventions and its Additional Protocols. But the question is what would be the case if one or more States that breach certain human rights and humanitarian norms were not the party to the relevant treaty and against which standard could its conduct be judge. The normal academic follow-up to this question is pointing to the relevance of customary law in this field. The fact that fundamental human rights are embodied in the 1948 Universal Declaration of Human Rights, a number of universal and regional treaties, and bind international persons who are not parties to it,10 provides for a good starting-point basis to claim their customary status.
2. Normative Character: Peremptory Status and the Absence of Reciprocity
Peremptory norms (jus cogens) are defined in Article 53 of the 1969 Vienna Convention on the Law of Treaties as the norms from which no derogation is permitted, and agreements contrary to these norms are void. Thus, due to their significance as public policy, they are norms that have to apply universally and uniformly without admitting the separate regulation inter se.28 The argument that human rights and humanitarian law norms are part of international jus cogens has not been accepted without opposition. Apart from the isolated claims that there is no jus cogens in these fields, the mainline objection is that while some norms, for instance the prohibition of torture, is part of jus cogens, most of human rights and humanitarian norms are not.
3. Interpretation of Treaties
Treaties in the field of human rights and humanitarian law are normally interpreted by reference to the principle of effectiveness, in accordance with the interpretation rules under Article 31 of the Vienna Convention on the Law of Treaties. Fitzmaurice defines this principle by stating that “treaties are to be interpreted with reference to their declared or apparent objects and purposes; and particular provisions are to be interpreted so as to give them their fullest weight and effect consistent with the normal sense of the words and with other parts of the text, and in such a way that a reason and a meaning can be attributed to every part of the text.”60 The principle of effectiveness inherently contradicts the notion of restrictive interpretation of treaties, which is not part of international law. As Lauterpacht observes, “restrictive interpretation of treaty obligations finds no support in the practice of the Court and is indefensible on grounds of principle
4. The Scope of Application of the Two Bodies of Law
The common background is that while humanitarian law applies only to the armed conflicts, as stipulated, for instance, in Article 2 of the 1949 Geneva Conventions, human rights law applies both in peace and war. According to the European Union Guidelines on promoting compliance with international humanitarian law, human rights law and humanitarian law.
5. The Effect of the Emergency Derogation
Human rights treaties consider the state of war – that is the state of applicability of humanitarian law – as the condition in which States can alleviate their treaty obligations in certain ways that is by use of their power to adopt emergency derogations from human rights treaties. Under Article 4 of the International Covenant on Civil and Political Rights and Article 15 of the European Convention on Human Rights, in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties may take measures derogating from their obligations under the relevant treaty to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law. Certain basic rights which are also fundamentally relevant from the viewpoint of humanitarian law, such as the right to life and freedom from torture, are exempted from the power of derogation.
1. General Aspects
There is an overlap between human rights law and humanitarian law in providing the protection of certain individual rights. Both bodies of law guarantee the freedom from torture (Article 7 ICCPR, Article 3 ECHR; Common Article 3 GCs, Article 75 I AP); freedom of religion (Article 18 ICCPR, Article 9 ECHR; Article 58 IV GC). The fundamental guarantees enshrined in Common Article 3, Article 75 of the I Additional Protocol and Articles 4-6 of the II Additional Protocol is reinforced by their link to fundamental human rights. These guarantees, especially Common Article 3, apply to both international and internal conflicts, and reaffirm in categorical terms certain rights which are derogable under human rights treaties, such as the right to fair trial.82 Articles 27 to 34 of the IV Geneva Convention include extensive references to basic human rights in armed conflict, including the right of individuals to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs; as well as prohibition of pillage, taking of hostages and taking reprisals against civilians.
2. Freedom from Arbitrary Deprivation of Life
The relationship between human rights law and humanitarian law in terms of the right to life has been determined, in general terms by the International Court of Justice in the Nuclear Weapons Advisory Opinion as the relationship between lex generalis and lex specialis. As the Court put it,
3. Freedom from Torture
The prohibition of torture is an essential part of both human rights law and humanitarian law. Torture committed in an armed conflict or in the occupied territories is illegal, with requisite legal consequences, under both bodies of law.
4. Procedural Safeguards
The rights to fair trial and due process is regulated and recognized both by human rights and humanitarian law. These rights are embodied in Article 14 ICCPR, Articlesn105 and 106 of the Third Geneva Convention on the Prisoners of War, and Article 75 of the First Additional Protocol. In addition, Article 5 of the Third Geneva Convention stipulates that persons detained in the course of armed conflict have the right to have their status verified by the competent tribunal. Articles 68 to 78 of the IV Geneva Convention list a number of procedural due process and fair trial guarantees that have to be afforded to individuals in occupied territories. These provisions largely overlap with safeguards provided in human rights treaties. Furthermore, the fair trial safeguards under the Common Article 3 apply to all armed conflicts, and it is hardly possible to justify derogation from the right to fair trial in a less grave emergency situation.
Difference between humanitarian law and human rights law
International humanitarian law and international human rights law are complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle.
Humanitarian law applies in situations of armed conflict , whereas human rights, or at least some of them, protect the individual at all times, in war and peace alike. However, some human rights treaties permit governments to derogate from certain rights in situations of public emergency. No derogations are permitted under IHL because it was conceived for emergency situations namely armed conflict.
Humanitarian law aims to protect people who do not or are no longer taking part in hostilities. The rules embodied in IHL impose duties on all parties to a conflict. Human rights, being tailored primarily for peacetime, apply to everyone. Their principal goal is to protect individuals from arbitrary behaviors by their own governments. Human rights law does not deal with the conduct of hostilities.
The duty to implement IHL and human rights lies first and foremost with States. Humanitarian law obliges States to take practical and legal measures, such as enacting penal legislation and disseminating IHL. Similarly, States are bound by human rights law to accord national law with international obligations. IHL provides for several specific mechanisms that help its implementation. Notably, States are required to ensure respect also by other States. Provision is also made for an enquiry procedure, a Protecting Power mechanism, and the International Fact-Finding Commission. In addition, the ICRC is given a key role in ensuring respect for the humanitarian rules.
Human rights implementing mechanisms are complex and, contrary to IHL, include regional systems. Supervisory bodies, such as the UN Commission on Human Rights, are either based on the UN Charter or provided for in specific treaties (for example the Human Rights Committee, which is rooted in the International Covenant on Civil and Political Rights of 1966). The Human Rights Commission and its Sub commissions have developed a mechanism of special reporters and working groups, whose task is to monitor and report on human rights situations either by country or by topic. Six of the main human rights treaties also provide for the establishment of committees (e.g. the Human Rights Committee) of independent experts charged with monitoring their implementation. Certain regional treaties (European and American) also establish human rights courts. The Office of the UN High Commissioner for Human Rights (UNHCHR) plays a key part in the overall protection and promotion of human rights. Its role is to enhance the effectiveness of the UN human rights machinery and to build up national, regional and international capacity to promote and protect human rights and to disseminate human rights texts and information.
Similarities and differences between IHL and H R Law:
1. Both international law subjects. All IHL treaties are international in scope, HR treaties can be international or regional.
Human rights organizations need to take into account regional variations, in particular the fact the European and Latin American HR treaties provide for international Courts with binding decisions, which is not found in the UN system.
2. IHL applies during armed conflict situations and those of occupation. Applicability outside such situations concerns teaching, training, and legislative implementation (applies at all times) and follow-up of violations (after the conflict).
Human rights law applies at all times, but certain derogations are possible, subject to a number of conditions, during times of emergency (see in particular, UN HR Committee General Comment no.29).
3. Both sets of law protect persons against arbitrary and unnecessary cruel treatment.
But NB difference in origin, reasoning and approach.
IHL = balance between military necessity and humanity. Developed through practice and then through treaty law; contains a very large number of detailed rules that reflect the balance.
HR = articulated as rights, and then balance between individuals and State created through limitation clauses and derogation possibilities. Treaty rules brief: detail developed through case-law and interpretation by treaty implementation bodies.
4. IHL divided into two main areas: law on the conduct of hostilities and law for the protection of victims.
Law on the protection of victims (mostly in four Geneva Conventions 1949): decent treatment to be given to persons in the power of the adversary i.e. those who surrender, captured civilians, captured soldiers, sick and wounded and others unable to defend themselves. Prohibition of murder, torture etc., right to fair trial, family ties to be protected as far as possible, medical treatment and humanitarian assistance to be given…
So we can say, International humanitarian law and international human rights law are complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle. For example, Humanitarian law applies in situations of armed conflict, whereas human rights, or at least some of them, protect the individual at all times, in war and peace alike.
There is no specific mechanism for execution of int. humanitarian law. According to humanitarian laws, any neutral state or ICRC (Internal Committee of Red Cross) may play vital role for execution of humanitarian laws. It is really rare to execute humanitarian laws by judicial proceedings.
Every concerned state is mainly assigned by constitution and ordinary laws to protect human rights. If any state fails to protect human rights, then human rights may be executed my Int. or Zonal Tribunal.
The duty to implement IHL and human rights lies first and foremost with States. Humanitarian law obliges States to take practical and legal measures, such as enacting penal legislation and disseminating IHL. Similarly, States are bound by human rights law to accord national law with international obligations.