THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

STUDENT: LEONIDA KATUNGE (1025383)

LECTURER: MS.JODY OLOO

UNIT CODE: CLS 408

THE INTERPALY BETWEEN INTERNATIONAL HUMAN RIGHTS LAW

AND INTERNATIONAL HUMANITARIAN LAW

June, 2015

NAIROBI, KENYA.

Introduction

1.0 Definition of Terms

1.1 International Human Rights Law

1.2 What are Human Rights?

2.0 Brief history of IHRL

2.1 Enforcement of International Humanitarian Rights Law

3.0 International Humanitarian Law

3.1 Brief History of International Humanitarian Law

3.2 The Main Principles of International Humanitarian Law

3.2.1 The principle of distinction;

3.2.2 The Principle of Proportionality:

3.2.3 The Principle of Precaution

4.0 The Interplay between International Human Rights Law and

Humanitarian Law

4.1 Points of Convergence

4.1.1 Human Rights Law Remains Applicable even During

Armed Conflict

4.1.2 Where both IHL and IHRL are applicable, IHL is

the Lex Specialis.

4.1.3 Common Goals of IHRL and IHL

4.2 Points of Divergence

4.2.1 The principle of distinction in international

humanitarian law

4.2.2 Duty Bearers in International Human Rights Law and

International Humanitarian Law

Conclusion

Bibliography

INTRODUCTION

In a research paper presented on an International Law Forum, in

Hebrew University, Jerusalem, Cordula Droege, had this to say

“International human rights law1 and international humanitarian

law2 are traditionally two distinct bodies of law. While the

first deals with the inherent rights of the person to be

protected at all times against abusive power, the other regulates

the conduct of parties to an armed conflict [… ] there are an

infinite number of points of contact between the two bodies of

1 IHRL-Hence forth as will be referred in this work2 IHL as will be referred in this work.

law, raising increasingly complicated and detailed questions”3

but also there points of divergence that need our attention in

our understanding of these two fields of study.

It is of great importance as human beings to understand the law

that pertains to human rights as well as Humanitarian law as in

everyday encounter, we are confronted with different situations

that require our attention. At times we do not understand or we

are not at a position of deciding or giving views in relation to

the situation we are confronted with in the line of human rights

and humanitarian law.

Looking at the history of these two concepts, we will realize

that they have roots in some point and time in the field of

dealing with “human beings” in various contexts. As we shall

discuss, these concepts never arose out of the blues but have an

origin that is also worth noting for a better appreciation as

well adhering to them.

1.0 DEFINITION OF TERMS

3 Cordula, Droege, A Paper Presented at an International Law Forum, HebrewUniversity Jerusalem, December, 2007.

1.1 International Human Rights Law

In history, various definitions have been given to IHRL depending

on various fields and contexts of application as well the authors

and scholars. First, IHRL is defined as “the body of

international law designed to promote and protect human rights at

the international, regional, and domestic levels”4. And as a form

of international law, IHRL is primarily made up of treaties,

agreements between states intended to have binding legal effect

between the parties that have agreed to them; and customary

international law, rules of law derived from the consistent

conduct of states acting out of the belief that the law required

them to act that way. Enforcement of IHRL can be made locally,

regionally as well as internationally and it is for this reason

that if the municipal law fails in enforcing human rights, the

international law takes precedence as was in the case of […]

Congo v Belgium.

In brief this case Yerodia (the Foreign Minister of Congo) was

accused of inciting racial hatred. These speeches, allegedly,

4 https://en.wikipedia.org/wiki/International_human_rights_law accessed on28th June 2015.

incited the population to attack Tutsi residents in Rwanda, which

resulted in many deaths. The warrant alleged Yerodia committed

grave breaches of the Geneva Conventions of 1949 and its

Additional Protocols and crimes against humanity. But

unfortunately the court ruled in favour of the minister in that

he enjoyed immunity and this thought against the International

Law.

It was held: The Court has been unable to deduce from thispractice that there exists under customary international law anyform of exception to the rule according immunity from criminaljurisdiction and inviolability to incumbent Ministers of ForeignAffairs, when they are suspected of having committed war crimesor crimes against humanity…The Court has also examined the rulesconcerning the immunity or criminal responsibility of personshaving an official capacity contained in the legal instrumentscreating international criminal tribunals, and which are specificallyapplicable … It finds that these rules likewise do not enable it toconclude that any such an exception exists in customaryinternational law in regard to national courts5.”

1.2 What Are Human Rights

Human rights mean different things to different people. From the

woman on the street to the UN High Commissioner for Human Rights,

from the local human rights activist to the government officials

5 https://ruwanthikagunaratne.wordpress.com/tag/congo-vs-belgium/ accessed on 1 July 2015

all these categories of people have rights. Human rights are

rights inherent in all human beings, whatever their nationality,

place of residence, sex, national or ethnic origin, colour,

religion, language, or any other status. These rights are all

interrelated, interdependent and indivisible.

The Black’s Law Dictionary defines IHRL as “right is that which

is proper in Law, morality and code ethics”6. It is something

that is due to a person by a just claim, legal guarantee or moral

principal.

Human Rights may be regarded as those fundamental and

inalienable rights which are essential for life as a human being.

They are possessed by every human being irrespective of his or

her nationality, race, religion, sex etc simply because he or she

is a human being7.

6 Henry, Campbell Black, Black’s Law Dictionary, West Publishers Inn, 1968,p.1487. Cf. Class Notes, International Human Rights Law and InternationalHumanitarian Law, May –August 2015.7M. G. Chitkara , Human Rights: Commitment and Betrayal APH PublishingCooperation, New Dehli,1996,p.71. Cf. Also Class Notes, International Human Rights law and InternationalHumanitarian Law May-August 2015.

The signing of the United Nations Charter marked the formal

realization that Human rights are a matter of International

concern. One of the purposes of UN Charter was to achieve

international corporation... in promoting and encouraging respect

for human rights and for fundamental freedoms for all without

distinction as to race, colour, sex, religion, etc.

Articles 55 and 56 of the UN Charter charges the members to

achieving inter alia, “a universal respect for, and observance of,

human rights and fundamental freedom for all without distinction

on of colour, sex, race, language, religion”8 .

2.0 Brief history of IHRL

Modern international human rights law developed in the wake of

World War II with the adoption of the 1948 Universal Declaration of

Human Rights (UNDHR). Since then the bulk of the international

legal framework of human rights protection has emerged through

treaties on specific rights or sets of rights intended to augment

8 Articles 55-56 of the UNITED Nations Charter, 1948.

the Universal Declaration and make the rights contained within it

legally binding and subject to monitoring and accountability

mechanisms as treaty law. Most notably, the UN General Assembly

adopted in 1966 the International Covenant on Economic, Social and Cultural

Rights (ICESCR) and the International Covenant on Civil and Political Rights

(ICCPR). Taken together with the Universal Declaration, these

three documents are commonly referred to as the “International

Bill of Human Rights”9.

2.1 Enforcement of International Humanitarian Rights Law

IHRL is enforced not just by states, nor just by government

officials, not just by world historical features bus as Richard

Pierre says “ by people like us, people with

courage ,determination, and committed to bring IHRL home through

a transnational legal process of interaction, interpretation and

internalization”10.

9 Hannum, H., "The Status of the Universal Declaration of Human Rights inNational and International Law", 25 Ga. J. Int'l & Comp. L. 287 (1995/96),excerpted/reprinted in 3 Health & Hum. Rts. 144 (1998) and 12 Interights Bull. 3 (No.1, 1998/99).10 Richard Pierre Claude (ed), Human Rights in the World Community: Issues and Action,University of Pennsyvania Press, Pennsyslavia, 2006, p.314.

3.0 International Humanitarian Law

International humanitarian law is a set of rules which seek, for

humanitarian reasons, to limit the effects of armed conflict. It

protects persons who are not or are no longer participating in

the hostilities and restricts the means and methods of warfare.

International humanitarian law is also known as the law of war or

the law of armed conflict11.

Most of the applicable rules are to be found in the four 1949

Geneva Conventions and their two 1977 Additional Protocols. In addition,

the 1907 Hague Conventions and the annexed Regulations lay down

important rules on the conduct of hostilities, notably on

military occupation. There are also several treaties that

prohibit or restrict the use of specific weapons, including anti-

personnel mines, exploding or expanding bullets, blinding laser

weapons, and, most recently in 2008, cluster munitions12.

The basis of international humanitarian law is the principle of

distinction, which applies in all armed conflicts. This principle11 https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf accessed on27th June 2015.12 ICRC, What is International Humanitarian Law?, Fact Sheet, 2004.

obliges “Parties to a conflict” (i.e. the warring parties,

whether states or non-state armed groups) to target only military

objectives and not the civilian population or individual

civilians or civilian objects (e.g. homes, schools, and

hospitals). Failing to make this distinction in military

operations represents an indiscriminate attack and is a war

crime13.

Fundamental to IHL are the following two principles:

i)The protection of persons who are not, or are no longer,

participating in hostilities; and

ii)The right of parties to an armed conflict to choose

methods and means of warfare is not unlimited.

The purpose of international humanitarian law is to limit the

suffering caused by war by protecting and assisting its victims

as far as possible. The law therefore addresses the reality of a

conflict without considering the reasons for or legality of

resorting to force. It regulates only those aspects of the

13 ICRC, Basic Rules of the 1949 Geneva Conventions and 1977 AdditionalProtocols, 1988.

conflict which are of humanitarian concern. It is what is known

as jus in bello14. Its provisions apply to the warring parties

irrespective of the reasons for the conflict and whether or not

the cause upheld by either party is just.

IHL also regulates activity during armed conflict and situations

of occupation.  It is distinct from, and applies irrespective of,

the body of law that regulates the recourse to armed force.  This

framework is known as the jus ad bellum, and is enshrined in the UN

Charter.  It regulates the conditions under which force may be

used, namely in self-defense and pursuant to UN Security Council

authorization.  Once there is an armed conflict IHL applies to

all the parties, whether or not a party was legally justified in

using force under jus ad bellum15 principles.

3.1 Brief History of International Humanitarian Law

International humanitarian law is rooted in the rules of ancient

civilizations and religions –warfare has always been subject to

14 Jus in bello-is the law that governs the way in which warfare is conducted. IHLis purely humanitarian, seeking to limit the suffering caused.15Jus ad Bellum- “Law on the use of force” seeks to limit resort to force betweenStates. Under the UN Charter, States must refrain from the threat or use offorce against the territorial integrity or political independence of anotherstate (Art. 2, para. 4 UN Charter).

certain principles and customs. The beginning of humanitarian law

was in 1864 with the first Geneva Convention; the Convention for

the Amelioration of the Condition of the Wounded in Armies in the

Field. Influenced by one of the bloodiest battles of the

nineteenth century in Solférino, Henry Dunant in 1862 published

Un Souvenir de Solférino [A Memory of Solferino]. Dunant proposed

that nations should form relief societies to provide care for the

wounded in wartime. This laid down the foundation for the Geneva

Conventions and led to the establishment of the International Red

Cross16.

On 22 August 1864 twelve nations signed the first Geneva

Convention, agreeing to guarantee neutrality to medical

personnel, to expedite supplies for their use, and to adopt a

special identifying emblem (which since 1870s has been the Red

Cross on a white background).

The Geneva Conventions adopted prior to 1949 were concerned with

the treatment of soldiers; following the events of World War II

16 Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law, Brill Publishers, The Netherlands, 2014, p.80.

it was understood that a Convention for the protection of

civilians in wartime was also crucial17.

The Geneva Convention I and Geneva Convention II deal with the

respect and protection due to the wounded and sick the dead

medical personnel and establishments. The second convention in

addition deals with hospital ships. Both hospital conventions

provide for the humane treatment of all protected persons without

discrimination n based on sex, race, nationality, religion,

political opinion or other similar criteria. They further provide

for search of casualties after engagement or for their care and

protection. The dead shall be buried if possible after medical

examination. Information should be recorded for the dead, wounded

and sick and forwarded to the adverse party through an

intermediary. No civilian may be molested or tried for nursing

the wounded or the sick. These duties are imposed on the party to

the conflict on whose power the protected person may be18.

3.2 The Main Principles of International Humanitarian Law

17 http://www.humanrights.ch/en/standards/international-humanitarian-law/history/ accessed on 27th June 2015.18 https://en.wikipedia.org/wiki/Humanitarianism#Geneva_Conventions accessed on 1 July 2015.

IHL contains three main principles that all parties need to

observe at all times to respect civilians and the civilian

population: distinction, proportionality and precaution.

3.1.1 The principle of distinction;

This requires the parties to a conflict to distinguish at all

times between civilians and combatants, and attacks to be

directed only against combatants. Parties to the conflict should

distinguish themselves from civilians by using distinctive

uniforms or other forms of identification. The parties to a

conflict must at all times distinguish between civilian objects

and military objectives, and attacks may be directed only against

military objectives. Indiscriminate attacks, i.e., attacks that

do not distinguish between military and non-military objectives,

are prohibited.

3.1.2 The Principle of Proportionality

According to the principle of proportionality, launching an

attack which may be expected to cause incidental loss of civilian

life, injury to civilians or damage to civilian objects that

would be excessive in relation to the concrete and direct

military advantage anticipated is prohibited. With regard to the

precautions to be adopted in the conduct of military operations,

constant care must be taken to spare civilians and civilian

objects in any attack.

3.1.3 The Principle of Precaution

All feasible precautions must be taken to prevent, or in any

event minimize, incidental loss of civilian life, injury to

civilians and damage to civilian objects. Precautionary measures

include the obligation to verify that a target is in fact a

lawful military objective and also to give advance warning to

civilians in the vicinity so they may leave the area.

4.0 The Interplay between International Human Rights Law and

Humanitarian Law

The above examination and definitions of terms take us now to the

understanding of the relationship between IHRL and IHL. This lays

a basis of our understanding how these two concepts converge and

diverge not only in meaning but also in application. Two main

concepts inform their interaction: complementarity between their

norms in most cases and prevailing of the more specific norm when

there is contradiction between the two.

Actually, for more than twenty years ago the relationship between

the law of armed conflict or international humanitarian law (IHL)

and human rights law was a matter ofAcademic debate19.

The International Court of Justice (ICJ) has made three

pronouncements on the relationship between the two bodies of

rules from which three interrelated propositions emerge20. First,

human rights law remains applicable even during armed conflict.

Second, it is applicable in situations of conflict, subject only

to derogation. Third, when both IHL and human rights law are

applicable, IHL is the lex specialis. It might be thought that these

pronouncements resolve the question of the relationship between

the two bodies of International law rules.

4.1 Points of Convergence

19 K. D. Suter, ‘ An enquiry into the meaning of the phrase “ human rights inarmed conflicts ” ’,Revue de Droit Pénal Militaire et de Droit de la Guerre,Vol. 15 (3–4) (1976).20 ICJ, Legality or Threat of Use of Nuclear Weapons , Advisory Opinion, 8July 1996, para. 25.

4.1.1 Human Rights Law Remains Applicable even During Armed

Conflict

We clearly stated that human rights and armed conflict make

reference to IHL and IHRL. These two, IHL and IHRL share the goal

of preserving the dignity and humanity of all. Over the years,

the General Assembly, the Commission on Human Rights and, more

recently, the Human Rights Council have considered that, in armed

conflict, parties to the conflict have legally binding

obligations concerning the rights of persons affected by the

conflict. Although different in scope, international human rights

law and international humanitarian law offer a series of

protections to persons in armed conflict, whether civilians,

persons who are no longer participating directly in hostilities

or active participants in the conflict. Indeed, as has been

recognized, inter alia, by international and regional courts, as

well as by United Nations organs, treaty bodies and human rights

special procedures, both bodies of law apply to situations of

armed conflict and provide complementary and mutually reinforcing

protection21.

Still further, the two bodies of law, IHRL and IHL are considered

to be complementary sources of obligations in situations of armed

conflict. For example, the Human Rights Committee, in its general

comments Nos. 29 (2001) and 31 (2004), recalled that the

International Covenant on Civil and Political Rights applied also

in situations of armed conflict to which the rules of

international humanitarian law were applicable22.

4.1.2 Where both IHL and IHRL are applicable, IHL is the Lex

Specialis.

The Human Rights Council, in its resolution 9/9, acknowledged

that IHRL and IHL were complementary and mutually reinforcing.

The Council considered that all human rights required protection

equally and that the protection provided by human rights law

21International Legal Protection of Human Rights in Armed conflict, UnitedNations, Publications, 2011, p.17.22 The General comments Nos. 29 (2001) on states of emergency (art. 4), para.3, and 31 (2004) on the nature of the general legal obligation imposed onStates Parties to the Covenant, para. 11.

continued in armed conflict, taking into account when

international Humanitarian Law applied as lex specialis23.

4.1.3 Common Goals of IHRL and IHL

It is obvious as we outlined in our definitions section that the

IHRL and IHL have different historical and doctrinal roots, but

both share the aim of protecting all persons and are grounded in

the principles of respect for the life, well-being and human

dignity of the person. This was held in the case of Prosecutor

v. Anto Furundžija , the Trial Chamber of the International

Criminal Tribunal for the former Yugoslavia emphasized that the

general principle of respect for human dignity was the “basic

underpinning” of both human rights law and international

humanitarian law 24. “ From a legal perspective, both

international human rights law and international humanitarian law

find their source in a series of international treaties, which

23 The doctrine of l e x s p e c i a l i s d e r o g a t l e g i  generalis states that whentwo pieces of legislation, or in this case two separate bodiesof law,  purport to legislate on the same issue, the more specificlegislation is overriding.24 Prosecutor v. Anto Furundžija,(1998) Case No. IT-95-17/1-T.

have been reinforced and complemented by customary international

law” as was stated in the North Sea Continental Shelf cases25.

4.2 Points of Divergence

Despite the similarities that exist between IHRL and IHL, we have

some differences. This does not however mean that these two

concepts are not intertwined:

4.2.1The Principle of Distinction in International

Humanitarian Law

The principle of distinction is unheard of the IHRL. Possibly

this is the most important difference between IHRL and IHL is the

substantive protection a person benefits from under the former

depends on the category that person belongs to, while under the

latter all human beings benefit from all human rights, although

some human rights instruments establish and protect specific

rights for specific categories of persons, e.g., children,

persons with disabilities or migrants. In IHL the protection of

civilians is not the same as the protection of combatants.

25 ICJ Reports, 1969, p.3.

This difference is particularly relevant in the conduct of

hostilities: there is a fundamental distinction between civilians

and combatants, and between military objectives and civilian

objects. Combatants may be attacked until they surrender or are

otherwise hors de combat, while civilians may not be targeted,

unless and for such time as they directly participate in

hostilities, and they are protected by the principles of

proportionality and precaution against the incidental effects of

attacks against military objectives and combatants.

4.2.3 Duty Bearers in International Human Rights Law and

International Humanitarian Law

IHRL and IHL have different rules regarding the type of actors

that bear responsibilities and can be bound by the law. They also

contain specific provisions for the protection of persons and of

specific groups of persons who are considered to be more exposed

to the risk of violations, particularly in an armed conflict.

Despite their differences, both bodies of law are increasingly

understood as imposing obligations on both State and non-State

actors, albeit in different conditions and to differing degrees.

Legal rules are addressed to the subjects of those rules26 as Ian

Brownlie stated.

CONCLUSION

As indicated throughout this study, IHRL and IHL are bodies of

law in permanent evolution. Warfare is a phenomenon in constant

change and, thus, international human rights law and

international humanitarian law are required to adjust constantly

to avoid gaps in the protection they provide. Changes in the law

stem essentially from the practice of the different organs that

supervise compliance with the system27. Jurisprudence by judicial

organs, but also by treaty bodies, is a significant source of

interpretation and is fundamental for the development of the

system. But applying the rules correctly and, most importantly,

providing adequate protection to populations at risk require a

26Ian Brownlie, Principles of Public International Law, (6th ed) OxfordUniversity Press, Oxford , 2003, p. 57.27 https://www.icrc.org/eng/assets/files/other/interplay-article-droege.pdfaccessed on 2nd July 2015.

thorough understanding of how these different norms interact and

how they complete and complement each other to afford the highest

standard of protection possible28

BibliographyBOOKSBlack, Henry, Campbell, Black’s Law Dictionary, West Publishers Inn,1968.Brownlie, Ian, Principles of Public International Law, (6th ed.) OxfordUniversity Press, Oxford, 2003.Chitkara M. G., Human Rights: Commitment and Betrayal, APHPublishing Corporation, New Dehli,1996Claude, Richard Pierre (ed.), Human Rights in the World Community: Issuesand Action, University of Pennsylvania Press, Pennsylvania, 2006.Hannum, H., The Status of the Universal Declaration of Human Rights in Nationaland International Law, 25 Ga. J. Int'l & Comp. L. 287 (1995/96).

28 http://www.ohchr.org/Documents/Publications/HR_in_armed_conflict.pdfAccessed on 27th June 2015.

Mehring, Sigrid, First Do No Harm: Medical Ethics inInternational Humanitarian Law, Brill Publishers, TheNetherlands, 2014.Suter, K. D. An enquiry into the meaning of the phrase “Human Rights in ArmedConflicts, in Revue de Droit Pénal Militaire et de Droit de laGuerre, Vol. 15 (3–4) (1976).Droege, Cordula, A Paper Presented at an International Law Forum,Hebrew University Jerusalem, December, 2007.International Committee of the Red Cross, What is InternationalHumanitarian Law?, Fact Sheet, 2004.International Committee of the Red Cross, Basic Rules of the 1949Geneva Conventions and 1977 Additional Protocols, 1988.International Court of Justice Reports, 1969.United Nations Charter, 1945.United Declaration of Human Rights, 1948.

E-SOURCES

https://en.wikipedia.org/wiki/International_human_rights_lawhttps://www.icrc.org/eng/assets/files/other/interplay-article-droege.pdfhttps://ruwanthikagnaratne.wordpress.com/tag/congo-vs-belgium/.

https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf.

UNPUBLISHED Class Notes, International Human Rights law and InternationalHumanitarian Law May-August 2015.