Leopold Adejoby Benito-Idjidina posted an update 5 years, 1 month ago
1. What do you understand by International Human Rights Law; and International Humanitarian Law? What is the difference between international human rights law and international humanitarian law?
Human rights are founded on respect for the dignity and worth of each person. International human rights law is a set of international rules, established by treaty or custom and even by case law, on the basis of which individuals and groups can expect and/or claim certain behavior or benefits from governments. Human rights law therefore places an obligation on states to act in a particular way and prohibits states from engaging in specific activities voiding/denying individual/people’s rights. An important function of human rights law is to enable individuals and groups to take positive action to redress violations against their internationally recognized rights. Human Rights treaties have been developed internationally, regionally, and at the nation level (Constitution).
International humanitarian law (IHL) is comprised of international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts. Its principal aims are to protect persons and property that are, or may be, affected by the conflict -e.g. civilians and prisoners of war and civilian objects – and to limit the right of the parties to a conflict to use methods and means of warfare of their choice. IHL, which is applicable only in times of armed conflict, does not deal with the legality of use of force by states or other actors, but applies whenever an armed conflict breaks out regardless of the underlying reasons. The legality of use of force in international relations is regulated by the UN Charter and by customary international law.
IHL and international human rights law (IHRL) are complementary bodies of international law that share some of the same aims. Both IHL and IHRL strive to protect the lives, the health and the dignity of individuals, albeit from different angles – which is why, while very different in formulation, the essence of some of the rules is similar. For example, both IHL and human rights law prohibit torture or cruel treatment, prescribe basic rights for persons subject to criminal process, prohibit discrimination, contain provisions for the protection of women and children, and regulate aspects of the right to food and health. There are however important differences between them: their origins, the scope of their application, the bodies that implement them, and so on.
While IHL applies exclusively in armed conflict, human rights law applies, in principle, at all times, i.e. in peacetime and during armed conflict. However, unlike IHL, some human rights treaties permit governments to derogate from certain obligations during public emergencies that threaten the life of the nation.
Another major difference between IHL and human rights law is their extraterritorial reach. That IHL governing international armed conflicts applies extraterritorially is not a subject of controversy, given that its purpose is to regulate the conduct of one or more States involved in an armed conflict on the territory of another. The same reasoning applies in non-international armed conflicts with an extraterritorial element: the parties to such conflicts cannot be absolved of their IHL obligations when the conflict reaches beyond the territory of a single State.
Contrary to this international humanitarian law (IHL) is only applicable in times of armed conflict and cannot be “derogated” or “suspended” In order to identify the applicable IHL codification(s), it needs to be determined in each case whether a conflict is of international, non-international or internal character. IHL furthermore only protects individuals, which fall under the definition of “protected persons” of the respective applicable Geneva Convention (GC) and their Additional Protocols (AP). IHL hence does not provide protection for a state’s own nationals. Another major difference between IHL and HRL is – at least from the traditional point of view – that human rights law binds only states. Th is means that non-state actors such as armed opposition groups, who may under certain conditions be parties to an armed conflict according to IHL and are thus bound by the latter, do not have to comply with HRL.
Last, but not least, human rights are rights of (all) individuals, who themselves have the right to complain about violations of their human rights. Consequently, HRL often provides additional protection of the individual whose rights have been violated through enforcement mechanisms established by the human rights instruments as such. These are judicial or quasi-judicial bodies overseeing the implementation of the respective HR instruments to which individuals may directly complain and who can issue binding decisions to the state concerned. IHL, however, is only binding on the parties to an armed conflict and attributes no rights to the individual victims of armed conflict. Consequently, there are no enforcement mechanisms to which individuals can complain in order to ensure that the states, respectively the parties of an armed conflict, comply with IHL during an armed conflict. It can thus be concluded that IHL and HRL are generally complementary and that a parallel application of the two fields of law is possible. In case, however, an applicable IHL provision contradicts an also applicable HRL provision, IHL is to be considered as lex specialis to human rights law.
2. What are the origins of international humanitarian law?
As early as 3000 BC, there existed rules protecting certain categories of victims of armed conflicts and regulations limiting or prohibiting the use of certain means and methods of warfare. These ancient rules may not have been adopted for a humanitarian purpose but rather with a purely tactical or economic objective; their effect, however, was humanitarian. For instance, the prohibition to poison wells belongs to African traditional law and is reaffirmed in modern treaties Besides, the prohibition to kill prisoners of war was in the perspective to constitute groups of future slaves, rather than to save the lives of former combatants. The existence of such customs, which can be found in cultures, regions and civilizations as diverse as Asia, Africa, pre-Columbian America and Europe, is of fundamental importance. This should always be kept in mind when studying the modern rules of IHL, for it demonstrates that although most of the modern rules are not universal by birth – they have until recently been drafted and adopted mainly by European powers – they are universal by nature, since the principles they codify can be found in most non-European systems of thought.
The beginning of humanitarian law was in 1864 with the first Geneva Convention; the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Influenced by one of the bloodiest battles of the nineteenth century in Solférino, Henry Dunant in 1862 published Un Souvenir de Solférino [A Memory of Solferino]. Dunant proposed that nations should form relief societies to provide care for the wounded in wartime. This laid down the foundation for the Geneva Conventions and led to the establishment of the International Red Cross. On 22 August 1864 twelve nations signed the first Geneva Convention, agreeing to guarantee neutrality to medical personnel, to expedite supplies for their use, and to adopt a special identifying emblem (which since 1870s has been the red cross on a white background). Developing alongside the Geneva Conventions were The Hague Conventions created by states in order to govern the conduct of war. The Hague Conventions are various international treaties that emerged from The Hague Peace Conferences in 1899 and 1907. At these conferences limitations on armaments, for example a prohibition on the use of air bombs and chemical warfare, and expansion of armed forces were proposed. The two Conventions established a model for multilateral meetings to create international laws, and subsequently influenced the formation of the League of Nations in 1919. The Geneva Protocol to the Hague Convention is considered an addition to the Hague Convention, although not drafted in the Hague. This entered into force on 8 February 1928 and permanently banned the use of all forms of chemical and biological warfare. This was drafted following the use of mustard gas and similar agents in World War I, and fears that such warfare in the future could lead to terrible consequences. The protocol has since been amended by the Biological Weapons Convention in 1972 and the Chemical Weapons Convention in 1993. The Hague Conventions as opposed to the Geneva Conventions, which are concerned with the treatment of personnel and civilians, mainly detail the permitted conduct for war. The Geneva Conventions adopted prior to 1949 were concerned with the treatment of soldiers; following the events of World War II it was understood that a Convention for the protection of civilians in wartime was also crucial. This global phenomenon proves the existence of two things: a common understanding of the need for regulations of some kind even during wars; and the feeling that, in certain circumstances, human beings, friend or foe, deserve some protection.
3. How does international human rights law and humanitarian law regulate the means and methods of warfare?
While international humanitarian law (IHL) only applies in times of armed conflict, international human rights law (IHRL) applies at all times; in times of peace and in times of armed conflict. The concurrent application of these two bodies of law has been expressly recognized by various international tribunals, including the International Court of Justice, the UN Human Rights Committee, the European Court of Human Rights, the Inter-American Commission on Human Rights and, of course, numerous national courts. This being said, some human rights treaties permit states to derogate from certain rights in times of public emergency. Certain key rights may never be suspended, including the right to life and the prohibition of torture or cruel, inhuman or degrading treatment or punishment. Moreover, unless and until they have issued derogations in accordance with the relevant procedures states are bound by the entirety of their conventional obligations even in times of armed conflict. The scope of application of the two bodies of law is slightly different. IHL binds all actors in armed conflicts: states, organized armed grounds and individuals. IHRL, on the other hand, lays down rules that regulate states in their relations with individuals. While there is a growing body of opinion according to which organized armed groups – particularly if they exercise government-like functions – must also respect human rights the issue remains unsettled. Although individuals do not have specific obligations under human rights law, the most serious violations of human rights, such as genocide, crimes against humanity and torture, are criminalized by international law and are often crimes under national criminal law.
The essence of some of the rules of IHL and IHRL is similar. For example, both bodies of law aim to protect human life. prohibit torture or cruel treatment, prescribe basic rights for persons facing criminal proceedings and prohibit discrimination. However, care must be taken to ensure the proper articulation of the relationship between the two sets of rules. As stated by the International Court of Justice in its advisory opinion on Nuclear Weapons, in situations of armed conflict, IHL is lex specialis. The precise interplay depends then on the rules in question.
There may be certain matters for which IHL lays down a “self-contained” set of rules. In these cases the provisions of IHL apply to the exclusion of human rights. A case in point are the rules relating to prisoners of war found in the Third Geneva Convention which, with regard to most matters, is a self-contained system. For example, this means that prisoners of war can be deprived of their liberty until the end of hostilities and a right to challenge the deprivation of liberty cannot be inferred from human rights law. Article 5 of Third Geneva Convention does give captured combatants a right to have their entitlement to prisoner of war status determined by a competent tribunal.
On the other hand, IHL can be vague or silent on particular questions, in which case it is proper to turn to human rights law for guidance to interpret the rules in question. This is most notable in relation to fair trial provisions, where IHL only contains general provisions, like a reference to entitlement to “judicial guarantees recognized as indispensable by civilized peoples”. The precise contents of such guarantees can be inferred from IHRL. Human rights law is also an important source of rules and protection in non-international armed conflicts, where the IHL treaty rules are few. In recent years we have been seeing the emergence of extremely interesting and important case law from human rights and national courts as they grapple with this complex relationship. The analysis is not rendered any easier by the question of the extent of extra-territorial application of human rights.
4. How does international human rights law and international humanitarian law protect refugees and internally displaced persons?
Whereas refugee law contains a specific definition of refugee, IHL is very vague and only rarely employs the term. All the same, this does not mean that refugees are neglected by IHL, since they are protected by it when they are in the power of a party to a conflict. During international armed conflicts, nationals of a State who flee hostilities and enter the territory of an enemy State are protected by the Fourth Geneva Convention as aliens in the territory of a party to the conflict (Articles 35 to 46 of the Fourth Convention). This Convention requests favourable treatment for refugees on the part of the host country; since, as refugees, they do not enjoy the protection of any government, they must not be treated as enemy aliens solely on the basis of their nationality (Article 44 of the Fourth Convention). Protocol I reinforces this rule while also referring to the protection of stateless persons (Article 73 of Protocol I). Refugee nationals of a neutral State who find themselves in the territory of a belligerent State are protected by the Fourth Convention when there are no diplomatic relations between their State and the belligerent State. Article 73 of Protocol I maintains this protection even when diplomatic relations exist. The Fourth Convention further stipulates that ” In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs ” (principle of non-refoulement, Article 45, para. 4 of the Fourth Convention). If, during the occupation of a territory, refugees again fall into the power of a State of which they are nationals, they also enjoy special protection: The Fourth Convention prohibits the Occupying Power from arresting, prosecuting or convicting them, or from deporting them from the occupied territory (Artic le 70, para. 2 of the Fourth Convention). However, nationals of a State who flee from armed conflict to the territory of a State that is not taking part in an international conflict are not protected by international humanitarian law, unless this State is beset by internal armed conflict, in which case they are protected by Article 3 common to the Geneva Conventions and by Protocol II. The refugees in question are then the victims of two situations of conflict, one in their own country, and the other in the country receiving them.
As far as, IHRL is concerned, it contributes to guarantee protection for refugees through “the principle that human beings shall enjoy fundamental rights and freedoms without discrimination”. International refugee law instruments also codify a number of specific rights which states are obliged to provide to refugees. In view of rapid developments in the domain of human rights law
Many IHRL articles serve to protect legally refugees. IHRL protects refugees against persecution (i.e. denial of life, liberty and personal security), as enshrined in IHRL treaties, such as the 1966 International Covenant on Civil and Political Rights (ICCPR), the 1966 International Covenant on Social, Economic and Cultural Rights (ICESCR), the 1984 Convention against Torture and the 1989 Convention on the Rights of the Child. Previously, the resolution on ‘Human Rights and Mass Exoduses’ addressed such issues as the link of human rights and refugees, the prevention of refugee flows, early warning, and the protection of refugees’ human rights. Human rights ensure discipline, decency and dignity in the lives of refugees, even if certain refugees have to struggle hard to benefit this legal protection.
Concerning internally displaced persons (IDPs) armed conflict obliged them to flee their homes owing to serious violations of IHL. IDPs belong to the civilian population as defined under IHL. This protection may come from the law applicable either to international or to internal armed conflicts, as both types of conflict may result in displacements of people within their own country. The protection to which displaced persons, as civilians, are entitled in the event of displacements due to international armed conflict is set forth in Protocol I, Article 48. The civilian population is also entitled to receive items essential to its survival (Article 23 of the Fourth Convention; Article 70 of Protocol I). The same holds true for the population of occupied territories (Articles 55 and 59 of the Fourth Convention; Article 69 of Protocol I). In addition, IDP as civilian population cannot be deported from occupied territory. Generally speaking, the civilian population enjoys the fundamental guarantees stipulated in Article 75 of Protocol I.
IDPs fleeing from an internal armed conflict enjoy protection very similar to that during international armed conflicts. Article 3 common to the four Geneva Conventions is the cornerstone of this protection. Although very short, it contains essential principles. After pointing out that persons taking no active part in the hostilities must be treated humanely in all circumstances, it prohibits the following acts: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the key judicial guarantees. The Article also states that the wounded and sick are to be collected and cared for. These legal guarantees are repeated in Protocol II and prohibits collective punishments, acts of terrorism, and pillage (Article 4, paras 1 and 2). In addition, the prohibition of outrages upon personal dignity explicitly includes rape, enforced prostitution and any form of indecent assault. Persons deprived of liberty also enjoy additional guarantees (Article 5). Article 6 specifies judicial guarantees, while Articles 7 to 12 stipulate that the wounded and sick, as well as those caring for them, must be respected and protected. Finally, special protection is laid down for women and children (particularly in Article 4, para. 3). IDPs must not be the object of attack or of acts or threats of violence intended to spread terror among the civilian population (IDPs).
In addition, the use of starvation of civilians as a method of combat is prohibited (Article 14). It is also prohibited to attack, destroy or remove objects indispensable to the survival of the civilian population or render them unusable (such as foodstuffs, agricultural areas, crops, livestock, drinking water installations and supplies and irrigation works). Works and installations containing dangerous forces – dams, dykes and nuclear power stations – must not be attacked if such attacks may cause severe losses among the civilian population (Article 15). Cultural objects and places of worship are likewise protected (Article 16). IDPs won’t never be deprived of supplies essential for their survival such as foodstuffs and medical supplies, and relief actions to be undertaken with the consent of the State concerned.
“Unlike refugees, IDPs have not crossed an international border to find sanctuary but have remained inside their home countries. Even if they have fled for similar reasons as refugees (armed conflict, generalized violence, human rights violations), IDPs legally remain under the protection of their own government – even though that government might be the cause of their flight. As citizens, they retain all of their rights and protection under both human rights and international humanitarian law.” UNHCR The Guiding Principles (GPs) assert an IDP’s right to liberty of movement and to choose one’s residence but only during displacement (Principle 14(1)). While Principle 28 places positive obligations on ‘competent authorities’ to provide conditions conducive to return, it stops short of providing an explicit right to return that IDPs can invoke to challenge their displacement. The principles apply to three different situations—tensions and disturbances, which are covered by human rights law; non-international armed conflict, covered by both humanitarian and human rights guarantees; and interstate wars where humanitarian law is primarily operative. The guarantees that have to be observed in all three situations are identified as well the safeguards specific to particular situations. The principles pay special attention to the needs of women and children in situations of displacement. They call for special efforts to ensure the full participation of women in the planning and distribution of food and basic supplies as well as for special attention to the health needs of women, including access to female health care providers and services, such as reproductive health care. They further affirm the equal rights of women to obtain documents and to have such documentation issued in their own names. With regard to children, they prohibit forcible recruitment and provide for special efforts to reunify children with their families.
5- To what extent does international human rights law apply during armed conflict?
Both international humanitarian law (IHL) and international human rights law (IHRL) apply in armed conflicts. While IHL can be suspended only on the ground of the Article 5 to the Fourth Geneva Convention, IHRL allows States to suspend a number of human rights if they face a situation of emergency. Although, IHRL gives this derogation opportunity to States, States however cannot suspend or waive certain fundamental rights that they must respect whatever the circumstances. These compulsory rights include the right to life, the prohibition of torture and inhuman punishment or treatment, the outlawing of slavery or servitude, the principle of legality and the non-retroactivity of the law and the right to freedom of religion, conscience, and thought. States have a legal duty to respect and implement IHRL during armed conflict. Compliance with IHRL requires a state to introduce national legislation to implement its obligations, to train its military and to bring to trial those in grave breach of such law. IHRL is more complex and unlike IHL includes regional treaties. The main global legal instrument is the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948. Other global treaties include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights as well as treaties on the prevention and punishment of torture and other forms of cruel, inhuman or degrading treatment or punishment, on the elimination of racial discrimination and discrimination against women, or on the rights of the child. Regional human rights conventions or charters have been adopted in Europe, the Americas, Africa, and the Arab region. In situations of armed conflict, human rights law complements and reinforces the protection afforded by International Humanitarian Law.