Embed Doc
Copy Link
Readcast
Collections

CommentGo Back

Download

Assignment onRelation betweenInternational Humanitarian Law and International Human Rights.

Prepared By: Istiak Ahmed

Northern University

Introduction

International human rights law and international humanitarian law are traditionally twodistinct branches of law, one dealing with the protection of persons from abusive power,the other with the conduct of parties to an armed conflict. Yet, developments ininternational and national jurisprudence and practice have led to the recognition that thesetwo bodies of law not only share a common humanist ideal of dignity and integrity butoverlap substantially in practice. The most frequent examples are situations of occupationor non-international armed conflicts where human rights law complements the protection provided by humanitarian law. Classic international public law recognized the separation between the law of peace and the law of war. Depending on the state of internationalrelations, either the corpus juris of the law of peace or that of the law of war was applied.The adoption of the United Nations Charter in 1945 and of subsequent major humanrights documents changed this surgically clear division. Since then there have been normswhich are valid both in peacetime and in times of war.Both international humanitarian law (IHL) and international human rights law (IHRL)strive to protect the lives, health and dignity of individuals, albeit from a different angle.It is therefore not surprising that, while very different in formulation, the essence of someof the rules is similar, if not identical. For example, the two bodies of law aim to protecthuman life, prohibit torture or cruel treatment, prescribe basic rights for persons subjectto a criminal justice process, prohibit discrimination, comprise provisions for the protection of women and children, regulate aspects of the right to food and health. On theother hand, rules of IHL deal with many issues those are outside the purview of IHRL,such as the conduct of hostilities, combatant and prisoner of war status and the protectionof the Red Cross and Red Crescent emblems. Similarly, IHRL deals with aspects of life in peacetime that are not regulated by IHL, such as freedom of the press, the right toassembly, to vote and to strike.

What is international humanitarian law?

IHL is a set of international rules, established by treaty or custom, which are specificallyintended to solve humanitarian problems directly arising from international or noninternational armed conflicts. It protects persons and property that are, or may be,affected by an armed conflict and limits the rights of the parties to a conflict to usemethods and means of warfare of their choice. IHL main treaty sources applicable inInternational armed conflicts are the four Geneva Conventions of 1949 and their Additional Protocol I of 1977. The main treaty sources applicable in no internationalarmed conflict are article 3 common to the Geneva Conventions and Additional ProtocolII of 1977.

What is international human rights law compare with International HumanitarianLaw?

IHRL is a set of international rules, established by treaty or custom, on the basis of whichindividuals and groups can expect and/or claim certain behavior or benefits fromgovernments. Human rights are inherent entitlements which belong to every person as aconsequence of being human. Numerous non-treaty based principles and guidelines ("softlaw") also belong to the body of international human rights standards. IHRL main treaty

sources are the International Covenants on Civil and Political Rights and on Economic,well as Conventions on Genocide (1948), Racial Discrimination (1965), DiscriminationAgainst Women (1979), Torture (1984) and Rights of the Child (1989). The main regionalinstruments are the European Convention for the Protection of Human Rights andFundamental Freedoms (1950), the American Declaration of the Rights and Duties of Man (1948) and Convention on Human Rights (1969), and the African Charter on Humanand Peoples' Rights (1981). While IHL and IHRL have historically had a separatedevelopment, recent treaties include provisions from both bodies of law. Examples arethe Convention on the Rights of the Child, its Optional Protocol on the Participation of Children in Armed Conflict, and the Rome Statute of the International Criminal Court.When are they applicable?IHL is applicable in times of armed conflict, whether international or non international.International conflicts are wars involving two or more states, and wars of liberation,regardless of whether a declaration of war has been made or whether the parties involvedrecognize that there is a state of war. Non-international armed conflicts are those in whichgovernment forces are fighting against armed insurgents, or rebel groups are fightingamong themselves. Because IHL deals with an exceptional situation – armed conflict – no derogations whatsoever from its provisions are permitted. In principle, IHRL appliesat all times, i.e. both in peacetime and in situations of armed conflict. However, someIHRL treaties permit governments to derogate from certain rights in situations of publicemergency threatening the life of the nation. Derogations must, however, be proportionalto the crisis at hand, must not be introduced on a discriminatory basis and must notcontravene other rules of international law – including rules of IHL. Certain human rightsare never derogable. Among them are the right to life, prohibition of torture or cruel,inhuman or degrading treatment or punishment, prohibition of slavery and servitude andthe prohibition of retroactive criminal laws.

Conceptual similarities in present-day humanitarian law and human rights law

From a purist human rights point of view, based as it is on respect for human life andwellbeing, the use of force is in itself a violation of human rights. This was indeed statedat the 1968 Human Rights Conference in Tehran as follows:"Peace is the underlying condition the full observance of human rights and war is their negation".However, the same conference went on to recommend further developments inhumanitarian law in order to ensure a better protection of war victims. This was anacknowledgement, therefore, that humanitarian law is an effective mechanism for the protection of people in armed conflict and that such protection remains necessary becauseunfortunately the legal prohibition of the use of force has not in reality stopped armedconflicts.A conceptual question of importance is whether human rights law can be applied at alltimes, thus in armed conflict as well, given that the philosophical basis of human rights isthat by virtue of the fact that people are human, they always possess them. The answer inone sense is that they do continue to be applicable.As space does not allow us to go into a detailed assessment of the similarities between