International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are traditionally two distinct bodies of law; one dealing with protection of persons from abusive power at all times while the other with the conduct of parties to an armed conflict. Although this distinction has not been blurred as the two still have different scopes, developments in international jurisprudence and practice have led to the recognition that both bodies of law offer protection to persons during armed conflicts and share the goal of preserving the dignity and humanity of all.
The relationship between IHL and IHRL did not draw much attention until the late 1960s. Prior to this period, both bodies of law were considered separate and distinct as they historically emerged and developed independent of each other. IHL developed via customary law and was based on the reciprocal expectations of two parties at war, notions of chivalry and civilized behaviour. Its first treaty codification was in 1864 when the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was drafted. This Convention was followed by a range of other treaties, with each acknowledging the need to protect individuals in times of armed conflict.
IHRL on the other hand, is a more recent phenomenon that was introduced into the international arena in 1948 with the adoption of the Universal Declaration of Human Rights, which was designed to protect the human rights of individuals. Human rights are now found in several instruments, principally the International Covenant on Civil and Political Rights (ICCPR) 1976, International Covenant on Economic, Social and Cultural Rights (ICESCR) 1976, European Convention on Human Rights (ECHR) 1953, American Convention on Human Rights (ACHR) 1969 and the African Charter on Human and Peoples Rights (ACHPR) 1981. Human rights are based on the principle of humanity and protection of individuals from abusive power.
Over the years, there has been a growing interest in the relationship between the two bodies of law especially as regards to whether IHRL was applicable in times of armed conflicts. The treaties created a category of non-derogable rights thereby acknowledging that certain human rights could be curtailed in armed conflict. In recent years, there has been a convergence of the two laws; it is now confirmed that human rights can apply in times of armed conflicts (subject to derogation) as well as in times of peace. The UN Human Rights Committee also clarified that – ICCPR applies in situations of armed conflict to which the rules of IHL are applicable. On the other hand, the purpose of IHL has changed with greater emphasis being placed on the protection of the individual through the inclusion of human rights norms. IHL and IHRL now share a common ideal which is the protection of the dignity and integrity of the person and many of their guarantees now overlap. Both sphere of law are complementary not mutually exclusive.
Today, it has been opined that both IHL and IHRL have several points of similarities which include that both bodies of law are based in their fundamental nature upon the dignity and value of the individual being. They both raise the level of behaviour towards individuals and are both concerned with the rights and protections of individuals. Particularly, there are some provisions of IHL that help to protect the most fundamental human rights principles in practice, such as:
- Non- Discrimination: like human rights law, humanitarian law is based upon the premise that the protection accorded to victims of war must be without discrimination. For instance, Article 27 of the 4th Geneva Convention of 1949 provides that – ‘’All protected persons shall be treated with the same consideration by the party to the conflict in whose power they are without any adverse distinction based in particular on race, religion or political opinion…’’.
- Protection of Life: it is observed that a great deal of IHL is devoted to the protection of life. Even though it is obvious that the lives of combatants cannot be protected whilst still fighting because of the principle of military necessity, humanitarian law is not totally silent in that regard, in that the rule that prohibits the use of weapons of a nature to cause superfluous injury or unnecessary suffering is partly aimed at outlawing those weapons that cause an excessively high death rate among soldiers. Furthermore, victims of war are not to be murdered as it amounts to an unnecessary act of cruelty. Humanitarian law carefully defines the limits of what can be done during hostilities in order to spare civilians as much as possible. The Additional Protocols protects life in a way that goes beyond the traditional right to life. It prohibits the starvation of civilians as a method of warfare and consequently, the destruction of their means of survival.
- Prohibition of Torture: there is the guaranteed right under ICCPR that no one shall be subjected to torture or cruel, inhuman or degrading treatment. Humanitarian law in the same vein contains an absolute prohibition of such behaviour. Article 3 common to the Geneva Conventions prohibits violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.
- Prohibition of Slavery: Article 4 (2) (f) of Additional Protocol II prohibits slavery. Slavery is further precluded by the various forms of protections in the Geneva Conventions; for instance, prisoners of war are not to be seen as the property of those who captured them. Article 8 of the ICCPR also clearly prohibits slavery too.
- Respect for Religion: this right which is contained in Article 18 of the ICCPR is also taken into account in humanitarian law, not only by stipulating that prisoners of war and detained civilians may practice their own religion but also by providing for ministers of religion who are given special protection under the Geneva Convention. In addition, the Geneva Convention stipulates that if it is possible, the dead are to be buried according to the rites of their religion.
This is not an exhaustive list of the ways in which humanitarian law overlaps with human rights norms. Despite the similarities stated above, there is a doctrine of separation of the two bodies of law among scholars. Some affirm that the regime of IHL applicable in armed conflict situations and the regime of IHRL applicable in peacetime are mutually exclusive. Similarly, the European Union Guidelines on Promoting Compliance with IHL suggests that IHL and IHRL are distinct bodies of law and while both are principally aimed at protecting individuals, there some important differences between them such as:
- Apart from the historical difference earlier mentioned, it is important to note that IHRL concentrates on the value of individuals themselves who have the right to expect the benefit of certain freedoms and forms of protection (rights of recipients of certain treatment) while IHL merely indicates how a party to a conflict is to behave in relation to people at its mercy.
- IHRL seeks to reflect the cohesion and harmony in human society and as such is different from IHL which seeks to regulate the conduct of hostile relationships between states or other organized armed groups.
- IHRL applies at all times whereas IHL applies only in times of armed conflicts.
- IHRL has more advanced procedural safeguards for the protection of individual rights than IHL as seen in respect of the right to an individual remedy, to an investigation and to individual reparation.
- IHRL are derogable with few exceptions while IHL is non-derogable with only one exception of Article 5 of the 4th Geneva Convention.
Considering the differences outlined above, it is tempting to conclude that IHL and IHRL are fundamentally distinct. However, in reality the two bodies of law are complementary and mutually reinforcing. Looking at the following arguments:
- IHRL may fill in gaps in IHL. This is particularly the case when IHL rules are unclear or cover only certain situations e.g. the right to fair trial as provided in human rights treaties and developed by the jurisprudence of various international or regional Courts appear to be more comprehensive than the one enshrined in the Geneva Conventions and its Additional Protocols.
- IHRL may provide specific mechanisms for implementing IHL provisions in that owing to the dearth or failure of the IHL enforcement mechanisms (apart from the exception of the International Criminal Law) and the successful development of strict accountability mechanisms in IHRL, individuals have turned towards human rights organs to adjudicate violations of IHL.
The existence of an armed conflict is a pre-condition for the application of IHL. Even at that there is a threshold that must be met for the application of IHL to come into force; that is the intensity of hostilities in both international and non-international armed conflicts. We must however keep in mind that irrespective of the existence of an actual armed conflict, IHRL continues to apply. In other words, in all those unclear cases of violence, IHRL is considered the only applicable legal regime until such a time that the threshold of the armed conflict has been met, to determine whether the violence is an international or non-international armed conflict. At such a time, IHL protections and standards will complement, complete and in certain cases, further clarify IHRL protections, guarantees and minimum standards.
In the event of a conflict between these two bodies of laws, it has been suggested that the best way of reconciling IHL and IHRL rules is by applying the ‘Lex Specialis’ principle which allows IHL to displace IHRL in times of armed conflict. This principle states that where the application of two rules would result in conflicts, the specific rule displaces the more general rule.
It would be impossible today to completely draw a fine distinction between IHL and IHRL. While their origins and developments were quite distinct, it is observed that both bodies of law are similar in a lot of ways, different in some other aspects and yet complement each other. In times of conflict, both bodies of law apply concurrently. There are times when their rules conflict with each other, the conflict is then resolved via the concept of lex specialis, since IHL is lex specialis to IHRL during the conduct of hostilities.