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