INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW: A MUTUAL COMPLEMENTARITY

Introduction
International Humanitarian law and International Human Rights law are two distinct bodies of laws but do not contradict each other. Both strive to protect the lives, health and dignity of individuals, albeit from a different perspective. Hence, the relationship between International Humanitarian Law and International Human rights law is described to be a relationship between general and specific laws, in which International Humanitarian law is the specific law (lex specialis). International Humanitarian Law applies in situations of armed conflict which deals with the conduct of hostilities while the International Human Rights Law protects the individual at all times, in conflict and peace alike. However, the two laws aim to protect human life, women and children, prohibits discrimination and any kind of torture.


In light of the above, the paper intends to look at the definitions of international Humanitarian law and International Human Rights Law, areas of application of the Laws and the principles of complementarity and lex specialis. The paper will equally consider the distinguishing features of International Humanitarian Law and International Human Rights Law and the point where the two laws converge. A reflection on the implementation of the International Humanitarian Law and International Human Rights Law will be considered. Finally, the paper will end with conclusion and recommendation.

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Definitions of International Humanitarian Law and International Human Rights Law*    

There are various definitions given by various scholars, as to what IHL and IHRL mean. Few among which are:
International Humanitarian Law is a major part of public international law that comprises the rules which, in times of armed conflict, seek to protect people who are not or are no longer taking part in the hostilities and to restrict the methods and means of warfare employed[1]. Or it is an international treaty or customary rules which are specially intended to resolve matters of Humanitarian concern arising directly from armed conflicts, whether of an international or non international nature.2 Yet, in another definition International Humanitarian Law is defined as the branch of the Laws of armed conflict which is concerned with the protection of the victims of armed conflict, meaning those rendered hors de combat by injury, sickness or capture and also civilians.3  It is equally an international rule established by treaties or customs which limit the right of parties to a conflict to use the methods or means of warfare of their choice or which protect states not party to the conflict or persons and objects that are, or may be affected by the conflict4.
            Therefore, IHL known as the law of armed Conflicts or Law of war has two branches, namely;
1.         The “Law of Geneva” which is designed to safeguard military personnel who are no longer taking part in the      fighting and people not actively involved in hostilities i.e       civilians. 
2.         The “Law of the Hague” which establishes the rights and        obligations of belligerents in the conduct of military operations and limits the means of harming the enemy5.

            On the other hand, the International Human Rights Law can be defined as the law that deals with the protection of individuals and groups against violations by governments of their internationally guaranteed rights and with the promotion of these rights.6 It can also be defined as a set of international rules established by treaty or custom on the basis of which individuals and groups can expect and/or claim certain behavior or benefits from governments.7 Human Rights have been classified into personal rights, political and moral Rights, proprietary Rights, procedural Rights and equality Rights8.  Personal Rights include Right to life, Right to dignity of Human person, the Right to personal liberty and Right to freedom of movement9. Political and moral Rights include the Rights to property and privacy10. Procedural Rights include the Right of fair hearing and to have one’s cause heard11.” Equality Right include the Right to freedom from discrimination12.
            Furthermore, Human Rights have also been classified according to the periods they emerged   or were recognized. These periods have been termed as “generations13”, namely:
1.         The first generations rights which encompasses the civil and political rights14such as Right to life, dignity of human person, personal liberty etc.
2.         The second generation of Rights which encompasses as          economic, social and cultural Rights15such as right to education, health, employment etc.
3.         The third generation of Rights (Solidarity Rights) which          includes Right to development, right to self- determination, right to clean and healthy environment             and right to international  peace and security16etc.

Areas of application of the laws

International Humanitarian Law is applicable in armed conflict only and no derogation can be made from it. While International Human Rights Law may however be suspended under certain conditions in situations threatening the life of the nation17. Hence, International Humanitarian Law is applicable in two situations, namely International and non international armed conflict.18 An International armed conflict means fighting between the armed forces of at least two states and it would include the wars of national liberation and occupation as well as intervention by a third state. Whereas, non International armed conflicts mean fighting on the territory of a state between the regular armed forces and identifiable armed groups, or between armed groups fighting one another.19 On the other hand, the International Human Rights Law is applicable in all situations including internal disturbances and other situations of internal violence.20     
            Moreover, the applicability of Human Rights Law during military occupation has been affirmed in case Law and practice21. But it is not a question of substituting Human Rights Law for occupation Law, it is understandably often better adapted to the particular situation of military occupation22. This is true for example, with respect to the protection of private property from which derogation is normally possible under Human Rights Law and for which the special regime applicable in time of occupation is defined by occupation law23. It was also pointed out that the extent of applicability of certain instruments not providing for derogation in the event of conflict or any other public emergency such as the International Covenant on Economic Social and Cultural Rights will be determined according to whether there are special rules of the law of war or the law of military occupation that may conflict with their provisions and thus prevail as lex specialis.24
            Hence, the ICJ, the Human Rights Committee and the European  Court of Human Rights appear to think that Human Rights  Law applies in occupied territory  in the same way as it applies to state’s  own territory25. While the position appears to be settled, the question is whether the test for occupation is the same under IHL and IHRL? It might be argued that, in some respects, IHL fudges the question of when the full range of IHL obligations in occupied territory becomes applicable. An answer is that; effective control is required and the area may be under the general control of occupying forces.26
            More importantly, the question as to how far IHRL is applicable extraterritorially arises purely within the law itself and is not confined to situations of conflict27.  The position of ICJ in its advisory opinion: legal consequence of the construction of a wall in the occupied Palestinian territory, stated clearly that the International Covenant on Civil and Political Rights must be applied to the occupied territories, thus; in conclusion, the court considers that the International Covenant on Civil and Political Rights is applicable in respect of act done by a state in the exercise of its jurisdiction outside its own occupied territories.28           
            Meanwhile, in a situation of International armed conflict, the Geneva conventions (first –fourth) of 1949 and additional protocol I apply. Whereas, Article 3 common to the conventions and protocol II is applicable in a situations of non international armed conflict.29 Further clarification has been provided by the case Law of the International Criminal Tribunal for the former Yugoslavia (ICTY) as to what constitute armed conflict? The court held that:

“an armed conflict is said to exist whenever there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”30

            However, the applicability of the regime of International Humanitarian law during an armed conflict does not preclude the application of the covenant including article 4 of Universal Declaration of Human Rights, which covers situation of public emergency which threaten the life of the nation. Nor does the applicability of the regime of IHL preclude accountability of states parties under article 2 paragraph 1, of the covenant for the actions of their authorities outside their own territories31.

The principle of complementarity and Lex specialis
            The concurrent application of human rights and Humanitarian Law has the potential to offer strong protection to the individual, but it can also raise many problems.32 The principle of complementarity therefore means that human rights law and humanitarian law do not contradict each other but, being based on the same principles and values, can  influence and reinforce each other mutually.33 In this sense, complementarity reflects a method of interpretation  enshrined in Article 31(3)(c) of the Vienna convention on the law of treaties, which stipulates  that,  in interpreting norm, “ any relevant rules of international law applicable in the relations between the parties” shall be taken into account. This principles, in a sense, enshrines the idea of international law understood as a coherent system.34 It sees international law as a regime in which different sets of rules cohabit in harmony. Thus, International Human Rights Law can be interpreted in the light of International Humanitarian Law and vice versa.35
            On the other hand, the principles of lex specialis, is a rule whereby a specific rule would displace the more general rule (lex specialis derogat legi generali). Hence, the relationship between International Human Rights Law and International Humanitarian Law is described as a relationship between general and specialized law, in which humanitarian Law is the lex specialis.36 This was the approach of ICJ in the nuclear weapons case.37 In which the court held that:
“The test of what is arbitrary deprivation of life however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.”38             

Distinguishing features of International Humanitarian Law and International Human Rights Law

In considering the relationship between the International Humanitarian Law and International Human Rights Law, it is pertinent to understand their differences. Hence, the following are fundamental distinctions between the two bodies of laws;39
            International Humanitarian Law only applies in times of armed conflict, whereas International Human Rights Law applies at all times.40 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,41 (with the sole limited exception of Article 5 of the fourth Geneva Convention.)42
            International Humanitarian Law is binding for parties to the conflict i.e. both state authorities and non state parties –this question is far more controversial in international human rights law. Traditionally, International Human Right Law is understood to be binding only for states, and it will have to be seen how the law evolves in this regard.43    
            Under the IHL, individual as well as states may be held responsible for ensuring compliance. Whereas, under the IHRL it is the primary responsibility of a state to ensure compliance.44 Therefore IHL provides for several specific mechanism that help its implementation. Notably, states are required to ensure respect also by other states. In addition, the ICRC is given a key role in ensuring respect for the humanitarian rules. Whereas Human Rights implementing mechanisms are complex and contrary to IHL, include regional systems and supervisory bodies such as the U.N. Commission on Human Rights.45
            There are different standards for the use of force in IHRL and IHL. In IHRL, lethal force can be used only if there is an imminent danger of serious violence that cannot be averted save for such use of force. Whereas, in IHL, the main principles reining in the use of force are the principles of distinction, precaution and of  proportionality  in order to avoid incidental loss of civilian  life or damage to civilian object.46 Hence, the IHRL requires that the use of force be proportionate to the aim to protect life, whereas IHL requires that the incidental loss of civilian life, injury to civilians or damage to civilian objects caused by an armed attack must not be excessive.47 To this end, International Humanitarian Law provides the maximum possible protection of people in armed conflict through a balance between what is referred to as “military necessity” on the one hand, and “humanity” on the other.48                

Point of convergence of the Laws
            Beyond their common humanist ideal, IHL and IHRL had little in common at their respective inception.49 Hence, certain convergence are inherent to IHRL instruments. Most Human  Rights except the most fundamental ones belonging to  the ‘hard core’50 may be derogated from in state of emergency, to the extent required by the exigencies of the situation, and  if this derogation is consistent with other international obligations of the derogating state.51 Since IHL applies precisely to the exceptional situations which constitute armed conflicts, the content of IHRL that states must respect in all circumstances (the ‘hard core’) tends to converge with fundamental and legal guarantees provided by IHL, example: the prohibition of torture and summary executions e.t.c52
            Conversely, the main international body implementing IHL (ICRC) has been for a long time engaged in activities in time of internal violence similar to those it performs in international armed conflicts.53 Finally, war and peace, civil and international conflicts, international law and national law, all increasingly overlap. It follows that IHL and IHRL can be legally applicable at the same time side by side, in a cumulative or complementary manner.54 

Implementation of IHL and IHRL
            Implementation simply means, putting the law into effect. It goes a bit further than the mere observance of the Law.55 The purpose of both IHL and IHRL is to obtain the respect of the individual, each of these branches of law have their own implementation mechanisms tailored to respond to the typical situations for which they were created.56 Violations of IHL typically occur on the battle field and they can only be addressed by immediate reaction. Whereas, IHRL is more often violated through judicial, administrative, and legislative decisions.57 In the implementation of IHL, redress to the victims is central, and therefore a confidential, co-operative, and pragmatic approach is often more appropriate. In contrast the victims of traditional violations of IHRL want their rights to be reaffirmed, therefore, a more legalistic and dogmatic approach is necessary in implementing IHRL.58       
            Some would say that to implement IHL one has to have the mentality of a good Samaritan and to implement IHRL one has to have the mentality of a judge.59 In practice, IHL has been implemented through the following measures, namely: preventive measures based  on the duty of state  to comply with IHL (to spread, train qualified personnel to facilitate implementation of IHL, adopt legislative and statutory provisions and to translate the texts of the conventions),  measures for monitoring compliance, Repressive measures based on the duty of parties to the conflict to prevent and put a halt to all violations, and Diplomatic measures  based on efforts and pressure from the media and public opinion.60 Whereas, IHRL has been implemented through a posterior control, on demand, in a quasi judicial procedure.61   
            Interestingly, today the different bodies implementing IHRL in situations of gross and widespread  human rights violations in the field act in a similar way to that traditionally  adopted by the ICRC for the implementation  of IHL. United Nations (U.N) Human Rights monitors are deployed in critical regions and will visit prisons similar to ICRC delegates, and special rapporteurs of the U.N Human Rights commission travel to critical areas.62 On the other hand, IHL is more and more often implemented by International tribunals, necessarily a posteriori and in a judicial procedure.63         

Conclusion
From the foregone discussion, we are made to understand that IHL aims to protect people who do not or are no longer taking part in the hostilities (Hors de combat), and the IHRL principal goal is to protect individual from arbitrary behaviour by their own Governments, and therefore, it does not deal with the conduct of hostilities. It has been established that IHL is applicable in armed conflict and no derogation can be made there from, while IHRL applies in war and peace alike, and certain rights can be derogated in situation of public emergency. However, when it comes to the concurrent application of IHL and IHRL, the principle of complementarily and lex specialis play a vital role. It has been noticed that the ‘hard core’ of IHRL tends to converge with the fundamental and legal guarantees provided by the IHL, and lastly, the laws are put into effect by different bodies e.g. ICRC and UN Human rights monitors.
            We suggest that a comprehensive teaching, training and dissemination of the IHL and IHRL to our militaries and paramilitaries should be made. The knowledge, philosophy and interpretation of the laws to the students and teachers should be in the frontline focus of the actors. Finally, the actors should make a regular consultations and plans with parties involve so as to ensure effective implementation.


* Alhaji Umar Alkali, Magaji Chiroma & Abdulrashid Lawan Haruna, Lecturers, Faculty of Law, University of Maiduguri, Bornu State, Nigeria
* Hereinafter  referred to as IHL and IHRL respectively 
[1] ICRC; International Humanitarian Law; Answers to your Question, Geneva, Switzerland, (October 2002), P.4   
2 Ibid
3 McCoubrey, H; International Humanitarian Law. The Regulation of Armed Conflicts, Dartmouth    Publishing  Company Limited, U.S.A (1990) p.1 
4 Ladan,  M.T. Introduction to  International Human Rights and Humanitarian Laws, A.B.U, Zaria –Kaduna, Nigeria (1999) P.132 
5  ICRC, IHL, Answer to your Questions Op.cit, p.4
6 Ibid, P.45
7 ICRC: Advisory Service on International  Humanitarian Law; International Human Rights Law: Similarities and Differences, (Jan, 2003)p.1  
8 Ogbu, O.N; Human Rights  Law and Practice in Nigeria: An Introduction, CIDJAP Press, Enugu, (1999), P.15
9 Ibid
10 Ibid
11 Ibid
12 Ibid
13 Ibid
14 Ibid, p.16
15 Ibid
16 Ibid, P.17
17 Sassoli:,  M. and Bouvier, A.Al et al; How Does Law Protect in War: Cases, Documents and Teaching Materials  on Contemporary Practice in International Humanitarian Law, ICRC, Geneva, (1999), P.264     
18 I.C.R.C, IHL, Answer  to your Questions, Op. cit. p.16
19 Ibid, P.4
20 Ibid, P.17
21  Campamelli, D: The Law  of Military  Occupation  Put to the Test of Human Right Law, in : International  Review of the Red Cross,  Humanitarian Debate, op. cit p.660 
22 Ibid, p.661
23 Ibid
24 Ibid
25 Hampson, F.J. op cit, p567
26 Ibid
27 Ibid, P.566
28 Campanelli, D, Op cit, p.663
29 Ibid, P.16
30 Hampson, F.J; The Relationship  Between  Humanitarian Law and Human Rights Law from the Perspective of a Human Right Treaty Body, in: International Review of the Red Cross, Humanitarian Debate; Law, Policy  Action (Human Rights), by Pfanner T. (ed), ICRC, Cambridge University Press, London, Volume 90, No 871, (September 2008),  P.555.    
31 Ibid, Pp 662-663
32 Droege, C; Effective Affinities? Human Rights and Humanitarian Law, in : International Review of Red Cross, op. cit, p.520
33 Ibid, P.521
34 Ibid
35 Ibid, Pp551-552
36 Ibid p.522
37 Legality of the threat or use of nuclear weapons, advisory opinion of 8, July 1996, (1996) Reports, P.226 Para.25 (Hereinafter referred to as Nuclear weapons case).  
38 Droege, C. Op. cit, P.552
39 Ibid. P.521
40 Ibid p.521
41 I.C.R.C, International Humanitarian Law, Answers to your Questions, op. cit, p.36  
42 Drogege, C. op. cit p.521
43 Ibid
44 Shehu, I; the Separate Evolution of International Humanitarian Law and Human Rights, in: A.B.U Journal of International Law, A.B.U press, Zaria, vol. III, No III (2002). 
45 I.C.R.C, International Humanitarian Law,  Op. cit, p.36
46 Droege, C; op. cit, p.525
47 Ibid, pp525-526
48 Ladan, M.T; op.cit. p.104, and Note: military necessity is defined as those actions that are necessary to overpower the opponent and the law has been drafted so as to take this fully into account.
49 Droege, C. op.cit, p.503
50 These are Fundamental Rights laid down by the treaty which must be respected at all time and in all circumstances and may never be waived. These Rights include the right to life, the prohibition of torture  and inhuman punishment or treatment, slaver  and servitude and the principle of legality and non retroactivity of the law.     
51 Sassoli, M. and Bourvier, A.A. op. cit, p.269
52 ICRC, International Humanitarian LAw, op. cit, p.37
53 Sassoil, M. and Bourvier, A.A. Op. cit p.270
54 Ladan, M.T; Op. cit, p.108
55 Ibid, P.396
56 Sassoli, M and Borvier, A.A. Op. cit p.269
57 Ibid
58 Ibid
59 Ibid
60 Ibid
61 Sassoli, M. and Bourvier, A.A. op cit. P.269
62 Ibid
63 Ibid
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