IHL and human rights

Introduction

Introductory text

International humanitarian law (IHL) developed as the law of international armed conflicts and was therefore necessarily international law in the traditional sense, an objective legal order governing inter-State relations. Its main objective was always to protect individuals, but that protection was not expressed in the form of subjective rights of the victims; rather, it was a consequence of the rules of behaviour for States and (through them) of individuals.

Human rights have only recently been protected by international law and are still seen today as being mainly governed by national law (though not of exclusively domestic concern). They were always seen and formulated as subjective rights of the individual (and, more recently, of groups) in respect of the State – mainly their own State.

Both branches of international law are today largely codified. IHL, however, is codified in a broadly coherent international system of binding universal instruments of which the more recent or specific clarify their relationship with the older or more general treaties. International Human Rights Law, conversely, is codified in an impressive number of instruments – universal or regional, binding or exhortatory, concerning the whole subject, its implementation only, specific rights or their implementation only – that emerge, develop, are implemented and die in a relatively natural, uncoordinated way.

Because of the philosophical axiom driving them, human rights apply to everyone everywhere, and as they are concerned with all aspects of human life, they have a much greater impact on public opinion and international politics than IHL, which is applicable only in armed conflicts that are themselves to be avoided. IHL is therefore increasingly influenced by human rights-like thinking.

Readings

Suggested reading:

  • ARNOLD Roberta & QUENIVET Noëlle (eds), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law, Leiden, Boston, M. Nijhoff, 2008, 596 pp.
  • APRAXINE Pierre, “Observations sur la distinction et la complémentarité entre droit international humanitaire et droits de l’homme”, in Revue Régionale de Droit, Vol. 91, pp. 111-121.
  • Council of the European Union, Guidelines: Human Rights and International Humanitarian Law, Luxembourg, Office for Official Publications of the European Communities, March 2009, 82 pp.
  • DOSWALD-BECK Louise & VITÉ Sylvain, “International Humanitarian Law and Human Rights Law”, in IRRC, No. 293, March-April 1993, pp. 94-119.
  • DROEGE Cordula, “The Interplay between International Humanitarian law and International Human Rights Law in Situation of Armed Conflict”, in Israel Law Review, Vol. 40, No. 2, pp. 310-355, 2007.
  • DROEGE Cordula, “Elective Affinities? Human Rights and Humanitarian Law”, in IRRC, Vol. 90, No. 871, September 2008, pp. 501-548.
  • EDEN Paul [et al.], “The Relationship between International Humanitarian Law and International Human Rights Law”, in Journal of Conflict and Security Law, Vol. 14, No. 3, 2009, pp. 441-527.
  • EL KOUHENE Mohamed, Les garanties fondamentales de la personne en droit humanitaire et droit de l’homme, Dordrecht, M. Nijhoff, 1986.
  • HADDEN Tom & HARVEY Colin, “The Law of Internal Crisis and Conflict”, in IRRC, No. 833, March 1999, pp. 119-134.
  • HAMPSON Françoise, “Human Rights and Humanitarian Law in Internal Conflicts”, in MEYER Michael A. (ed), Armed Conflict and the New Law, London, The British Institute of International and Comparative Law, Vol. II, 1993, pp. 53-82.
  • The Hebrew University Faculty of Law, “Special Issue: Parallel Applicability of International Humanitarian Law and International Human Rights Law”, in Israel Law Review, Vol. 40, No. 2, 2007, pp. 307-660.
  • HEINTZE Hans-Joachim, “On the Relationship between Human Rights Law Protection and International Humanitarian Law”, in IRRC, No. 856, December 2004, pp. 789-814.
    Journal of Conflict and Security Law, Vol. 14, No. 3, [On the Relationship between International Humanitarian Law and International Human Rights Law in Armed Conflict], 2009, 534 pp.
  • KHANNA S. K., War and Human Rights, New Dehli, Dominant Publ., 1999, 336 pp. KOLB Robert, “The Relationship between International Humanitarian Law and Human Rights Law: a Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions”, in IRRC, No. 324, September 1998, pp. 409-419.
  • MERON Theodor, “The Humanization of International Humanitarian Law”, in AJIL, Vol. 94/2, 2000, pp. 239-278.
  • PROVOST René, International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002, 332 pp.
  • SANDOZ Yves, “Droit international humanitaire et droits de l’homme : mariage d’amour ou de raison ?”, in Les droits de l’homme et la constitution: études en l’honneur du professeur Giorgio Malinverni, Geneva, Schulthess, 2007, pp. 339-374. 
  • SCHINDLER Dietrich, “The International Committee of the Red Cross and Human Rights”, in IRRC, No. 208, January 1979, pp. 3-14.
  • TAVERNIER Paul & HEYNS Christof (dir.), Recueil juridique des droits de l’Homme en Afrique, Brussels, Bruylant, 2002, 1336 pp.
  • TOMUSCHAT Christian, “Human Rights and International Humanitarian Law”, in EJIL, Vol. 21, No. 1, February 2010, pp. 15-23.
  • WATKIN Kenneth, “Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict”, in AJIL, Vol. 3/3, 2004, pp. 99-113.
  • OBERLEITNER Gerd, "Human Rights in Armed Conflict: Law, Practice, Policy", in Cambridge Univ. Press 2015

Further reading:

  • ARAI-TAKAHASHI Yutaka, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Boston, M. Nijhoff, 2009, 758 pp.  
  • AUREY Xavier, “The Universal Declaration of Human Rights and Armed Conflicts: from Fragmentation to Complexity”, in Anuário brasileiro de direito internacional = Brazilian Yearbook of International Law, Vol. 2, No. 4, 2009, pp. 48-67.
  • CALOGEROPOULOS-STRATIS Aristidis S., Droit humanitaire et droits de l’homme. La protection de la personne en période de conflit armé, Geneva, I.U.H.E.I., 1980, 257 pp.
  • CAMPANELLI Dario, “The Law of Military Occupation Put to the Test of Human Rights Law”, in IRRC, Vol. 90, No. 87, September 2008, pp. 653-668.
  • CASSIMARIS Anthony E., “International Humanitarian Law, International Human Rights Law and the Fragmentation of International Law”, in ICLQ, Vol. 56, Part 3, July 2007, pp. 623-639.
  • EIDE Asbjorn, “The Laws of War and Human Rights – Differences and Convergences”, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva, ICRC, The Hague, M. Nijhoff, 1984, pp. 675-698.
  • KRIEGER Heike, “A Conflict of Norms: the Relationship between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study”, in Journal of Conflict and Security Law, Vol. 11, No. 2, pp. 265-291.
  • ORAKHELASHVILI Alexander, “The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism or Convergence?”, in EJIL, Vol. 19, No. 1, February 2008, pp. 161-182.
  • RICHTER Dagmar, “Humanitarian Law and Human Rights: Intersecting Circles or Separate Spheres?”, in GIEGERICH Thomas (ed.), A Wiser Century?: Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years After the Second Hague Peace Conference, Berlin, Duncker and Humblot, 2009, pp. 257-322.
  • TOMUSCHAT Christian, “The Application of Human Rights Law to Insurgent Movements”, in Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck, Berlin, Berliner Wissenschafts-Verlag, 2004, pp. 573-591.

I. Fields of application

Cases and Documents

 1.   Material fields of application: complementarity

Introductory text

IHL is applicable in armed conflicts only. International Human Rights Law is applicable in all situations. All but the non-derogable provisions, the “hard core” of International Human Rights Law, however, may be suspended, under certain conditions, in situations threatening the life of the nation. As the latter do not only include armed conflicts, the complementarity remains imperfect; in particular, a gap exists in situations of internal disturbances and tension.

  1. IHL is applicable in armed conflicts
  2. Human rights apply at all times

Quotation

 

General Comment No. 31 [80]

The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. Adopted on 29 March 2004 (2187th meeting)
[...]

  1. States Parties are required by article 2, paragraph 1 [of the International Covenant on Civil and Political Rights], to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.
  2. As implied in [...] General Comment No. 29 on States of Emergencies, adopted on 24 July 2001, reproduced in Annual Report for 2001, A/56/40, Annex VI, paragraph 3, the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.
[Source: General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant: 26/05/2004. Human Rights Committee. Eightieth session (CCPR/C/74/CRP.4/Rev.6.), online: http://docstore.ohchr.org/SelfServices]

Cases and Documents

aa) but derogations possible in situations threatening the life of the nation

Cases and Documents

bb) no derogations from the “hard core” – but controversy whether and to what extent judicial guarantees belong to the “hard core”

Cases and Documents

cc) police operations remain at all times governed by the specific International Human Rights standards applicable to police operations against civilians, which may never be conducted like hostilities against combatants

Cases and Documents

Readings

Suggested reading:

  • FLECK Dieter, “Law Enforcement and the Conduct of Hostilities: Two Supplementing or Mutually Excluding Legal Paradigms?”, in Frieden in Freiheit = Peace in Liberty = Paix en liberté : Festschrift für Michael Bothe zum 70 Geburtstag, Baden-Baden, Nomos; Zürich, Dike, 2008, pp. 391-407.
  1. gap in situations of internal disturbances and tensions
    (For a definition of internal disturbances and tensions, see supra Part I, Chapter 2.III.1.C) Other situations, footnote 40)

Cases and Documents

Readings

Suggested reading:

  • EIDE Asbjorn, ROSAS Allan & MERON Theodor, “Combating Lawlessness in Gray Zones Through Minimum Humanitarian Standards”, in AJIL, Vol. 89/1, 1995, pp. 215-223.
  • GASSER Hans-Peter, “A Measure of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct”, in IRRC, No. 262, January-February 1988, pp. 33-58.
  • MERON Theodor, “Draft Model Declaration on Internal Strife”, in IRRC, No. 262, January-February 1988, pp. 59-104.
  • MERON Theodor, Human Rights in Internal Strife: Their International Protection, Cambridge, Grotius, 1987, 349 pp.
  • MERON Theodor, “Towards a Humanitarian Declaration on Internal Strife”, in AJIL, Vol. 78/4, 1984, pp. 859-868.
  • MOMTAZ Djamchid, “The Minimum Humanitarian Rules Applicable in Periods of Internal Tension and Strife”, in IRRC, No. 324, September 1998, pp. 455-462.
  • VIGNY Jean-Daniel, “Standards fondamentaux d’humanité : quel avenir ?”, in IRRC, No. 840, December 2000, pp. 917-939.

Further reading:

  • FLECK Dieter, “Law Enforcement and the Conduct of Hostilities: Two Supplementing or Mutually Excluding Legal Paradigms?”, in Frieden in Freiheit = Peace in Liberty = Paix en liberté : Festschrift für Michael Bothe zum 70 Geburtstag, Baden-Baden, Nomos; Zürich, Dike, 2008, pp. 391-407.
  • GASSER Hans-Peter, “New Draft Declaration on Minimum Humanitarian Standards”, in IRRC, No. 282, May-June 1991, pp. 328-329.

 2.   Protected persons

Introductory text

While it is an important rule of International Human Rights Law that all human beings benefit equally from these rights, the traditional approach of IHL, consistent with its development as inter-State law, is essentially to protect enemies. IHL therefore defines a category of “protected persons”, consisting basically of enemy nationals, who enjoy its full protection. Nevertheless, victims of armed conflicts who are not “protected persons” do not completely lack protection. In conformity with and under the influence of International Human Rights Law, they benefit from a growing number of protective rules, which, however, never offer the full protection foreseen for “protected persons”.

Cases and Documents

  1. International Humanitarian Law: concept of protected persons
    (See supra, Part I, Chapter 2. III. 2. a) passive personal scope of application: who is protected?)
  2. International Human Rights Law: all human beings

Cases and Documents

aa) who are on the territory and/or under the jurisdiction of a State: controversy about the extraterritorial application of International Human Rights Law

Cases and Documents

 3.   Relations affected

Introductory text

International Human Rights Law stipulates (or recognizes) that individuals (or groups) have rights in respect of the State (or, arguably, other authorities). The provisions of IHL, too, protect individuals against the (traditionally enemy) State or other belligerent authorities. IHL, however, also corresponds to the traditional structure of international law in that it governs (often by the very same provisions) relations between States. In addition, it prescribes rules of behaviour for individuals (who must be punished if they violate them) for the benefit of other individuals.

Cases and Documents

  1. International Humanitarian Law
    • individual – State 
    • State – State
    • individual – individual 
  2. International Human Rights Law
    • individual – State

Cases and Documents

Readings

Suggested reading:

  • CLAPHAM Andrew, Human Rights Obligations of Non-State Actors, Oxford, OUP, 2006, 613 pp.
  • SZABLEWSKA Natalia, “Non-State Actors and Human Rights in Non-International Armed Conflicts”, in South African Yearbook of International Law, Vol. 32, 2007, pp. 345-360.

 4.   The geographical scope of application: the extraterritorial application of International Human Rights Law

Introductory text

No one disputes that a State has to comply with IHL when it fights outside its territory. The IHL of military occupation has even been specifically made for such situations. Some rules of IHL (e.g., on the protection of prisoners of war and protected civilians) protect only those who are in the power of a State, while other rules (such as those on the conduct of hostilities) protect everyone, including, for example, the civilian population of the adverse party, against indiscriminate attacks or enemy soldiers against acts of perfidy or the use of prohibited weapons. The territorial field of application of International Human Rights Law raises many more controversies.

Most regional human rights conventions clearly state that the States Parties must secure the rights listed in those conventions for everyone within their jurisdiction. This includes occupied territory. On the universal level, under the International Covenant on Civil and Political Rights a Party undertakes ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized…’ (our emphasis). This wording and the negotiating history lean towards understanding territory and jurisdiction as cumulative conditions. Several States therefore deny that the Covenant is applicable extraterritorially. The International Court of Justice, the United Nations Human Rights Committee and other States are, however, of the opinion that the Covenant applies equally in occupied territory. From a teleological point of view, it would indeed be astonishing that persons whose rights can neither be violated nor protected by the territorial State lose all protection of their fundamental rights in respect of the State which can actually violate and protect their rights.

Even if International Human Rights Law applies extraterritorially, the next question that arises is when a person can be considered to be under the jurisdiction of a State. Doctrine and judicial decisions provide differing answers. One solution lies in the functional approach, which distinguishes the degree of control necessary according to the right to be protected. Such a “sliding scale” approach would reconcile the object and purpose of human rights – to protect everyone – with the need not to bind States by guarantees they cannot deliver outside their territory and concern to protect the sovereignty of the territorial State (which may be encroached upon by international forces protecting human rights against anyone other than themselves).

Cases and Documents

Readings

Suggested reading:

  • BEN-NAFTALI Orna & SHANY Yuval, “Living in Denial: The Application of Human Rights in the Occupied Territories”, in Israel Law Review, Vol. 37, No. 1, 2003, pp. 17-118.
  • CERONE John, “Jurisdiction and Power: the Intersection of Human Rights Law & the Law of Non-International Armed Conflict in an Extraterritorial Context”, in Israel Law Review, Vol. 40, No. 2, 2007, 58 pp.
  • DENNIS Michael J., “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation”, in AJIL, Vol. 99, No. 1, January 2005, pp. 119-142.
  • DENNIS Michael J. & SURENA Andre M., “Application of the International Covenant on Civil and Political Rights in Times of Armed Conflict and Military Occupation: The Gap Between Legal Theory and State Practice”, in European Human Rights Law Review, Issue 6, 2008, pp. 714-731.
  • HENDIN Stuart, “Extraterritorial Application of Human Rights: the Differing Decisions of Canadian and UK Courts”, in Windsor Review of Legal and Social Issues, January 2010, pp. 57-86.
  • SASSÒLI Marco, “The International Legal Framework for Stability Operations: When May International Forces Attack or Detain Someone in Afghanistan?”, in IYHR, Vol. 39, 2009, pp. 177-212.
  • ZIMMERMANN Andreas, “Extraterritorial Application of Human Rights Treaties: The Case of Israel and the Palestinian Territories Revisited”, in BUFFARD Isabelle, CRAWFORD James, PELLET Alain & WITTICH Stephan, International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner, Leiden, M. Nijhoff, February 2009, pp. 747-766.

II. Protected rights

Introductory text

If the protective rules of IHL are translated into rights and these rights compared with those provided by International Human Rights Law, it becomes apparent that IHL protects, in armed conflicts, only some human rights,[1] namely those that:

  1. are particularly endangered by armed conflicts[2] and
  2. are not, as such, incompatible with the very nature of armed conflicts.[3]

These few rights are protected by much more detailed IHL regulations that are better adapted to the specific problems arising in armed conflicts than the comprehensive guarantees formulated in International Human Rights Law.[4] In addition, IHL regulates problems of vital import for the protection of victims of armed conflicts, but which International Human Rights Law fails to address, even implicitly.[5]

IHL protects civil and political rights,[6] economic, social and cultural rights,[7] and collective or group rights.[8] Indeed, ever since it was first codified, IHL has never made the artificial distinction between civil and political rights and economic, social and cultural rights or between rights imposing a positive obligation on the State and those requiring the State to abstain from a certain type of behaviour.[9] In both fields IHL foresees legal obligations. For instance, in armed conflicts there is no meaningful protection without the provision of humanitarian assistance to those in need. Conversely, there can be no humanitarian assistance without a simultaneous concern for protecting those assisted from abuse and against violence and danger, which may even stem from the assistance provided.

Readings

Suggested reading:

  • JUNOD Sylvie S., “Human Rights and Protocol II”, in IRRC, No. 236, September 1983, pp. 246-254.

 1.   Rights protected by both branches: the lex specialis principle

Introductory text

When a point is covered by both IHL and International Human Rights Law, when both branches apply and in addition (which is rarely the case) lead to different results, the question arises as to which prevails. This problem is generally resolved by applying the lex specialis principle. In most cases, the two applicable rules do not contradict each other, but one or the other simply provides more details and therefore constitutes the lex specialis. Where contradictions exist, the meaning of the lex specialis principle is controversial. Some argue that IHL always prevails, or at least that it prevails in every situation for which it has a rule. Others, applying the rule of interpretation used to decide between competing or contradictory human rights rules, argue that in any circumstance the rule providing the greatest level of protection must be applied. In our view, it is preferable to apply the more detailed rule, that is, that which is more precise vis-à-vis the situation and the problem to be addressed.

The lex specialis principle does not indicate the inherent quality of one branch of law or of one of its rules. Rather, it determines which rule prevails over another in a particular situation. Each case must be analysed individually. Specialty in the logical sense implies that the norm that applies to certain facts must give way to the norm that applies to those same facts as well as to an additional fact present in the given situation. Between two applicable rules, the one which has the larger common contact surface area with the situation applies. The norm with the scope of application that enters completely into that of the other norm must prevail, otherwise it would never apply. It is the norm with the more precise or narrower material and/or personal scope of application that prevails. Precision requires that the norm addressing a problem explicitly prevails over the one that treats it implicitly, the one providing more details over the one that is more general, and the more restrictive norm over the one covering the entire problem but in a less exacting manner. 

A less formal – and also less objective – factor in determining which of two rules applies is the conformity of the solution to the systemic objectives of the law. Characterizing this solution as lex specialis perhaps constitutes a misuse of language. The systemic order of international law is a normative postulate founded on value judgements. In particular, when formal standards do not indicate a clear result, this teleological criterion must weigh in, even though it allows for personal preferences.

Cases and Documents

Readings

Suggested reading:

  • CHEVALIER-WATTS Juliet, “Has Human Rights Law Become Lex Specialis for the European Court of Human Rights in Right to Life Cases Arising from Internal Armed Conflicts?”, in The International Journal of Human Rights, Vol. 14, No. 4, pp. 584-602.
  • DROEGE Cordula, “The Interplay between International Humanitarian law and International Human Rights Law in Situation of Armed Conflict”, in Israel Law Review, Vol. 40, No. 2, pp. 310-355, 2007.
  • DROEGE Cordula, “Elective Affinities?: Human Rights and Humanitarian Law”, in IRRC, Vol. 90, No. 871, September 2008, pp. 501-548.
  • SASSÒLI Marco, “Le droit international humanitaire, une lex specialis par rapport aux droits humains ?”, in AUER Andreas, FLUECKIGER Alexandre & HOTTELIER Michel, Les droits de l’homme et la constitution : études en l’honneur du Professeur Giorgio Malinverni, Zürich, Schulthess, 2007, pp. 375-395.
  • SASSÒLI Marco, “The International Legal Framework for Stability Operations: When May International Forces Attack or Detain Someone in Afghanistan?”, in IYHR, Vol. 39, 2009, pp. 177-212.
  • SHANY Yuval, “Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror”, in Hebrew University International Law Research Paper, No. 23-09, 2009, 27 pp.

Further reading:

  • FLECK Dieter, “Law Enforcement and the Conduct of Hostilities: Two Supplementing or Mutually Excluding Legal Paradigms?”, in Frieden in Freiheit = Peace in Liberty = Paix en liberté: Festschrift für Michael Bothe zum 70 Geburtstag, Baden-Baden, Nomos; Zürich, Dike, 2008, pp. 391-407.
  • GUELLALI Amna, “Lex specialis, droit international humanitaire et droits de l’homme : leur interaction dans les nouveaux conflits armés”, in RGDIP, T. 111/2007/3, pp. 539-574.
  • MARSH Jeremy J., “Rule 99 of the Customary International Humanitarian Law Study and the Relationship between the Law of Armed Conflict and International Human Rights Law”, in The Army Lawyer, May 2009, pp. 18-22.
  • SOMER Jonathan, “Jungle Justice: Passing Sentence on the Equality of Belligerents in Non-International Armed Conflict”, in IRRC, Vol. 89, No. 867, September 2007, pp. 655-690.
  1.  areas in which details provided by IHL are more adapted to armed conflicts

Cases and Documents

aa) right to life in the conduct of hostilities

Cases and Documents

Readings

Suggested reading:

  • DOSWALD-BECK Louise, “The Right to Life in Armed Conflict: Does International Humanitarian Law Provide all the Answers?”, in IRRC, Vol. 88, No. 864, December 2006, pp. 881-904. 
  • MELZER Nils, Targeted Killing in International Law, Oxford, OUP, 2008, 468 pp. RATNER Steven R., “Predator and Prey: Seizing and Killing Suspected Terrorists Abroad”, in Journal of Political Philosophy, September 2007, Vol. 15, Issue 3, pp. 251-275.
  • SOLOMON Solon, “Targeted Killings and the Soldiers Right to Life”, in ILSA Journal of International and Comparative Law, Vol. 14, No. 1, 2007, pp. 99-120.
  • SPEROTTO Federico, “Targeted Killings in response to Security Threats: Warfare and Humanitarian Issues”, in Global Jurist, Vol. 8, Issue 3, 2008, pp. 1-32.

bb) prohibition of inhumane and degrading treatment

Cases and Documents

cc) right to health

Cases and Documents

dd) right to food
ee) right to individual freedom (in international armed conflicts)

Cases and Documents

  1.  areas in which International Human Rights Law gives more details

    aa)        procedural guarantees in case of detention?

Cases and Documents

Readings

Suggested reading:

  • Case Western Reserve Journal of International Law, “Security Detention”, Vol. 40, No. 3, 2009, pp. 315-650.
  • HENDIN Stuart, “Detainees in Afghanistan: the Balance between Human Rights Law and International Humanitarian Law for Foreign Military Forces”, in Tilburg Law Review, Vol. 14, No. 3, 2008, pp. 249-271.
  • Ministry of Foreign Affairs of Denmark, “The Copenhagen Process on the Handling of Detainees in International Military Operations”, in RDMDG, Vol. 3-4, No. 46, 2007, pp. 363-392.
  • OLSON Laura, “Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law: Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict”, in Case Western Reserve Journal of International Law, Vol. 40, No. 3, 2009, pp. 437-461.
  • OSWALD Bruce, “The Detention of Civilians in Military Operations: Reasons for and Challenges to Developing a Special Law of Detention”, in Melbourne University Law Review, Vol. 32, 2008, pp. 524-553.

bb) judicial guarantees in case of trial

Cases and Documents

cc)        use of firearms by law enforcement officials

Cases and Documents

dd)       medical ethics

Cases and Documents

ee)        definition of torture

Cases and Documents

  1.  the main controversies over whether IHL or International Human Rights Law prevails
    aa)        the right to life of fighters in non-international armed conflict

Cases and Documents

Readings

Suggested reading:

  • CHEVALIER-WATTS Juliet, “Has Human Rights Law Become Lex Specialis for the European Court of Human Rights in Right to Life Cases Arising from Internal Armed Conflicts?”, in The International Journal of Human Rights, Vol. 14, No. 4, pp.
  • DOSWALD-BECK Louise, “The Right to Life in Armed Conflict: Does International Humanitarian Law Provide all the Answers?”, in IRRC, Vol. 88, No. 864, December 2006, pp. 881-904.
  • MELZER Nils, Targeted Killing in International Law, Oxford, OUP, 2008, 468 pp. RATNER Steven R., “Predator and Prey: Seizing and Killing Suspected Terrorists Abroad”, in Journal of Political Philosophy, September 2007, Vol. 15, Issue 3, pp. 251-275. 
  • SASSÒLI Marco & OLSON Laura, “The Relationship Between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts”, in IRRC, Vol. 90, no. 871, September 2008, pp. 599-627.
  • SPEROTTO Federico, “Counter-insurgency, Human Rights, and the Law of Armed Conflict”, in Human Rights Brief, Vol. 17, Issue 1, 2009, pp. 19-23.

bb) procedural requirements in case of arrest and detention of fighters in non-international armed conflict

Cases and Documents

Readings

Suggested reading:

  • HENDIN Stuart, “Detainees in Afghanistan: the Balance between Human Rights Law and International Humanitarian Law for Foreign Military Forces”, in Tilburg Law Review, Vol. 14, No. 3, 2008, pp. 249-271.
  • PEJIC Jelena, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, in IRRC, Vol. 87, No. 858, June 2005, pp. 375-391.
  • SASSÒLI Marco & OLSON Laura, “The Relationship Between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts”, in IRRC, Vol. 90, no. 871, September 2008, pp. 599-627.

 2.   Rules of IHL not covered by International Human Rights Law

Cases and Documents

 3.   Human rights outside the scope of IHL

Cases and Documents

Footnotes

  • [1] Thus, for example, Art. 41 of Protocol I protects the right to life of enemies hors de combat, Art. 56 of Convention IV protects the right to health of inhabitants of occupied territories, Art. 56 of Protocol I protects the right to a healthy environment.
  • [2] Thus, e.g., since an armed conflict more strongly affects the war victims’ physical integrity than their freedom of opinion, it is logical that IHL contains more rules on the former than on the latter.
  • [3] The right of a people to peace, e.g., is by definition violated when that people is affected by an armed conflict. The right to self-determination is one of the (lawful) reasons for armed conflict. IHL, therefore, can not protect either of these rights.
  • [4] Thus, e.g., the very detailed precautionary measures to be taken in attack, according to Art. 57 of Protocol I, constitute a translation of the right to life and physical integrity of civilians into detailed rules of behaviour for those who conduct hostilities which could affect the civilians. Note, however, that International Human Rights Law provides conversely more details on, e.g., “the judicial guarantees which are recognized as indispensable by civilized peoples” foreseen in Art. 3 common to the Conventions.
  • [5] Thus, Art. 44(1)-(3) of Protocol I on combatant status deals with the question who may use force, an issue not addressed by International Human Rights Law, but which is crucial for the protection of civilians.
  • [6] Thus, e.g., Art. 41 of Protocol I protects the right to life of enemies hors de combat.
  • [7] Thus, e.g., Art. 56 of Convention IV protects the right to health of inhabitants of occupied territories.
  • [8] Thus, e.g., Art. 56 of Protocol I protects the right to a healthy environment.
  • [9] Thus, the very idea of Henry Dunant codified in the First Geneva Convention of 1864 is to prescribe an international obligation that the wounded and sick shall not only be respected but also, and in particular, be collected and cared for.

III. Implementation

Introductory text

While the purpose of both IHL and International Human Rights Law is to obtain respect for the individual, each of these branches of law has its own implementation mechanisms tailored to the typical situations for which they were created. Violations of IHL typically occur on the battlefield. They can only be addressed by immediate reaction. International Human Rights Law is more often violated through judicial, administrative or legislative decisions or inaction against which appeal and review procedures are appropriate and meaningful remedies. In the implementation of IHL, redress to the victims is central, and therefore a confidential, cooperative and pragmatic approach is often more appropriate. In contrast, the victims of traditional violations of International Human Rights Law want their rights to be reaffirmed, and therefore seek public condemnation as soon as they spot violations. A more legalistic and dogmatic approach is therefore necessary in implementing International Human Rights Law; indeed, such an approach corresponds to the human rights logic, which historically represents a challenge to the “sovereign”, while respect for IHL can be considered as a treatment conceded by the “sovereign”.

It has been said in some quarters that implementation of IHL requires the mentality of a good Samaritan, implementation of International Human Rights Law the mentality of a judge. In practice, IHL has traditionally been implemented through permanent, preventive and corrective scrutiny in the field, whereas International Human Rights Law has traditionally been implemented through a posteriori control, on demand, in a quasi-judicial procedure.

Interestingly, today the different bodies implementing International Human Rights Law in situations of gross and widespread human rights violations in the field act in a way akin to that traditionally adopted by the International Committee of the Red Cross (ICRC) for the implementation of IHL. United Nations (UN) human rights monitors are deployed in critical regions and visit prisons similarly to ICRC delegates, and special rapporteurs of the UN Human Rights Council travel to critical areas. On the other hand, IHL is more and more often implemented by international tribunals, necessarily a posteriori and in a judicial procedure.

In international practice, discussions and resolutions of the UN Security Council, the UN General Assembly and the UN Human Rights Council concerning armed conflict situations generally mention IHL and human rights together. Certain convergences are also inherent in international human rights instruments. Most human rights, except the most fundamental ones belonging to “the hard core”, may be derogated from in states of emergency, to the extent required by the exigencies of the situation, and if this derogation is consistent with the other international obligations of the derogating State.[10] IHL contains some of those other international obligations. Therefore, when confronted in times of armed conflict with derogations admissible as such under human rights instruments, the implementing bodies of International Human Rights Law must check whether those measures are compatible with IHL. If they are not, they also violate International Human Rights Law.

Similarly, International Human Rights Law considers the right to life as non-derogable, even in time of armed conflict. Some instruments, however, set out an explicit – and others an implicit – exception for “lawful acts of war”.[11] IHL defines what is lawful in war. When confronted with State-sponsored killings in time of armed conflict, human rights courts, commissions or NGOs must therefore check whether such actions are consistent with IHL before they can know whether they violate International Human Rights Law.

Conversely, the main international body implementing IHL, the ICRC, has for a long time been engaged in activities in situations of internal violence similar to those it performs in international armed conflicts. During such situations, IHL does not apply. In the past implicitly and today more and more explicitly – but maintaining its pragmatic, cooperative, and victim-oriented approach – the ICRC must therefore refer to human rights instruments for applicable international standards, for example on procedural principles and safeguards for internment or administrative detention in non-international armed conflicts.

Finally, as far as the teaching, training and dissemination of the two branches are concerned, soldiers must know Human Rights Law. Indeed, more and more soldiers are deployed in peacetime for police operations to which Human Rights Law applies. Police forces have to be familiar with both branches and know the relationship between them. Students will not understand new developments in IHL, in particular the important “human rights-like” rules of the law of non-international armed conflicts, if they have not first understood the philosophy and interpretations of International Human Rights Law. Conversely, they would have an incomplete view of the protection international law can offer to the individual if they studied only Human Rights Law without understanding the principles and fundamentally different starting point of IHL, namely the rules providing for protection of the individual in the most dangerous situations: armed conflicts.

Readings

Suggested reading:

  • ABI-SAAB Georges, “Droits de l’Homme et juridictions pénales internationales. Convergence et tensions”, in Mélanges en l’honneur de Nicolas Valticos, Paris, Pedone, 1999, pp. 245-253.
  • HENCKAERTS Jean-Marie, “Concurrent Application of International Human Rights Law and International Humanitarian Law: Victims in Search of a Forum”, in Human Rights and International Legal Discourse, Vol. 1, No. 1, 2007, pp. 95-124.
  • SASSÒLI Marco, “Mise en œuvre du droit international humanitaire et du droit international des droits de l’homme : une comparaison”, in ASDI, Vol. 43, 1987, pp. 24-61.
  • WEISSBRODT David & HICKS Peggy, “Implementation of Human Rights and Humanitarian Law in Situations of Armed Conflicts”, in IRRC, No. 293, March-April 1993, pp. 120-138.

Further Reading :

  • PROVOST René, “Reciprocity in Human Rights and Humanitarian Law”, in BYIL, Vol. 65, 1995, pp. 383-454.
  • WIERUSZEWSKI Roman, “Application of International Humanitarian Law and Human Rights Law: Individual Complaints”, in
  • KALSHOVEN Frits & SANDOZ Yves (eds), Implementation of International Humanitarian Law, Dordrecht, M. Nijhoff, 1989, pp. 441-458.

 1. Difference

Cases and Documents

  1. due to the specificities of armed conflicts
  2. in the approach: charity vs. justice ?

Quotation

[T]he ICRC abstains from making public pronouncements about specific acts committed in violation of law and humanity and attributed to belligerents. It is obvious that insofar as it set itself up as a judge, the ICRC would be abandoning the neutrality it has voluntarily assumed. Furthermore, in the quest for a result which would most of the time be illusory, demonstrations of this sort would compromise the charitable activity which the ICRC is in a position to carry out. One cannot be at one and the same time the champion of justice and of charity. One must choose, and the ICRC has long since chosen to be a defender of charity.

[Source: Pictet, J., The Fundamental Principles of the Red Cross. Proclaimed by the Twentieth International Conference of the Red Cross, Vienna, 1965, Geneva, Henry Dunant Institute, 1979, pp. 59-60]

Cases and Documents

  1. in action

aa) traditionally

  • International Humanitarian Law: permanent, preventive and corrective control on the field
  • International Human Rights Law: a posteriori control, on demand, in a quasi-judicial procedure

Cases and Documents

bb) contemporary tendency of human rights bodies to adopt an IHL-like approach

Cases and Documents

 2.   Convergence

Cases and Documents

  1. implementation of IHL by human rights mechanisms

Cases and Documents

Readings

Suggested reading:

  • BYRON Christine, “A Blurring of the Boundaries: the Application of International Humanitarian Law by Human Rights Bodies”, in Virginia Journal of International Law, Vol. 47, No. 4, 2007, pp. 839-896.
  • HAMPSON Françoise, “Using International Human Rights Machinery to Enforce the International Law of Armed Conflicts”, in RDMDG, Vol. 31, 1992, pp. 117-127.
  • HAMPSON Françoise, “The Relationship Between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body”, in IRRC, Vol. 90, No. 871, September 2008, pp. 549-572.
  • HENCKAERTS Jean-Marie, “Concurrent Application of International Human Rights Law and International Humanitarian Law: Victims in Search of a Forum”, in Human Rights and International Legal Discourse, Vol. 1, No. 1, 2007, pp. 95-124.
  • MARTIN Fanny, “Le droit international humanitaire devant les organes de contrôle des droits de l’homme”, in Droits Fondamentaux, No. 1, July-December 2001, http://www.droitsfondamentaux.org.
  • MARTIN Fanny, “Application du droit international humanitaire par la Cour interaméricaine des droits de l’homme”, in IRRC, No. 844, December 2001, pp. 1037-1066.
  • REIDY Aisling, “The Approach of the European Commission and Court of Human Rights to International Humanitarian Law”, in IRRC, No. 324, September 1998, pp. 513-529.
  • SASSÒLI Marco, “La Cour européenne des droits de l’homme et les conflits armés”, in BREITENMOSER Stephan, EHRENZELLER Bernhard, SASSÒLI Marco, STOFFEL Walter & WAGNER PFEIFER Beatrice (eds), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber, Zürich, Dike, February 2007, pp. 709-731

Further Reading :

  • ALSTON Philip, MORGAN-FOSTER Jason & ABRESCH William, “The Competence of the UN Human Rights Council and its Special Procedures in Relation to Armed Conflicts: Extrajudicial Executions in the “War on Terror””, in EJIL, Vol. 19, No. 1, February 2008, pp. 183-209.
  • D’AVIOLO Michele, “Regional Human Rights Courts and Internal Armed Conflicts”, Intercultural Human Rights Law Review, Vol. 2, 2007, pp. 249-328.
  • McCARTHY Conor, “Human Rights and the Laws of War under the American Convention on Human Rights”, in European Human Rights Law Review, No. 6, 2008, pp. 762-780.
  • O’DONNELL Daniel, “Trends in the Application of International Humanitarian Law by United Nations Human Rights Mechanisms”, in IRRC, No. 324, September 1998, pp. 481-503.
  • SÖFKER Carolin, “The Inter-American Commission and the Court of Human Rights: Enforcement Mechanisms of International Humanitarian Law?”, in Humanitäres Völkerrecht, 20. Jg., 1, 2007, pp. 33-36.
  • ZEGVELD Liesbeth, “The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case”, in IRRC, No. 324, September 1998, pp. 505-511.

aa) through clauses in human rights treaties

Cases and Documents

  • exception to the right to life

Readings

Suggested reading:

  • GAGGIOLI Gloria & KOLB Robert, “A Right to Life in Armed Conflicts?: the Contribution of the European Court of Human Rights”, in IYHR, Vol. 37, 2007, pp. 115-163.
  • MELZER Nils, Targeted Killing in International Law, Oxford, OUP, 2008, 468 pp.
  • reference in derogation clauses

Quotation

General Comment No. 29: States of Emergency (article 4), 31/08/2001.
[...]

  1. Furthermore, article 4, paragraph 1, requires that no measure derogating from the provisions of the Covenant may be inconsistent with the State party’s other obligations under international law, particularly the rules of international humanitarian law. Article 4 of the Covenant cannot be read as justification for derogation from the Covenant if such derogation would entail a breach of the State’s other international obligations, whether based on treaty or general international law. This is reflected also in article 5, paragraph 2, of the Covenant according to which there shall be no restriction upon or derogation from any fundamental rights recognized in other instruments on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent.
  2. Although it is not the function of the Human Rights Committee to review the conduct of a State party under other treaties, in exercising its functions under the Covenant the Committee has the competence to take a State party’s other international obligations into account when it considers whether the Covenant allows the State party to derogate from specific provisions of the Covenant. Therefore, when invoking article 4, paragraph 1, or when reporting under article 40 on the legal framework related to emergencies, States parties should present information on their other international obligations relevant for the protection of the rights in question, in particular those obligations that are applicable in times of emergency. In this respect, States parties should duly take into account the developments within international law as to human rights standards applicable in emergency situations.

[Source: International Covenant on Civil and Political Rights, Document CCPR/C/21/Rev.1/Add.11, of 31 August 2001, General Comment no. 29, States of Emergency (article 4), online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.11〈=en]

Cases and Documents

  • the prohibition of “arbitrary” detention

Cases and Documents

bb) indirectly, through the implementation of International Human Rights Law

Cases and Documents

  1. implementation of human rights by the ICRC

Readings

Suggested reading:

  • FORSYTHE David P., “Choices More Ethical than Legal: The International Committee of the Red Cross and Human Rights”, in Ethics & International Affairs, Vol. 7, 1993, pp. 131-151.
  • SCHINDLER Dietrich, “The International Committee of the Red Cross and Human Rights”, in IRRC, No. 208, January 1979, pp. 3-14.

Further Reading :

  • GASSER Hans-Peter, “A Measure of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct”, in IRRC, No. 262, January-February 1988, pp. 33-58.
  • SOMMARUGA Cornelio, “Humanitarian Law and Human Rights in the Legal Arsenal of the ICRC”, in Human Rights and Humanitarian Law, The Hague, M. Nijhoff, 1997, pp. 125-133.
  • in armed conflicts
  • outside armed conflicts

 3.   Cooperation between the ICRC and human rights bodies

  1. dissemination

Cases and Documents

  1. thought

Cases and Documents

  1. operations

 Footnotes