Enhancing the Application of International Humanitarian Law through Human Rights Bodies

Armed conflicts inevitably raise questions about protecting human dignity when the stakes are highest. While International Humanitarian Law exists specifically to govern wartime conduct, it often lacks robust enforcement mechanisms. This gap has led human rights bodies to play an increasingly vital role in monitoring and applying IHL, creating a powerful synergy between two distinct yet complementary branches of international law.

Understanding the relationship between IHL and IHRL 🔗

International Humanitarian Law and International Human Rights Law share a fundamental goal: protecting human lives, health, and dignity. However, they approach this mission from different angles. IHL was codified in the 19th century to regulate armed conflicts, while human rights law emerged after World War II to define the relationship between states and individuals.

Both legal frameworks prohibit torture, prescribe fair trial rights, ban discrimination, and protect vulnerable groups like women and children. Yet they differ significantly in scope and application. IHL applies exclusively during armed conflicts, while IHRL applies at all times – in peacetime and during war. This temporal difference creates opportunities for human rights bodies to bridge gaps in IHL enforcement.

The crucial distinction: derogations and non-derogable rights 🔗

One of the most important differences between these legal frameworks concerns derogations. Human rights treaties allow governments to temporarily suspend certain obligations during public emergencies threatening the life of the nation. States can restrict freedom of movement, liberty and security, or freedom of association when circumstances demand it.

However, IHL is entirely non-derogable – no provisions can be suspended under any circumstances. This absolute nature strengthens IHL’s protective power during conflicts. Certain human rights also remain non-derogable, including the right to life, prohibition of torture, prohibition of slavery, and prohibition of retroactive criminal laws.

The derogation framework creates complexity during armed conflicts. When a state faces both an armed conflict and a public emergency, it must navigate overlapping obligations from IHL and IHRL. The state can suspend some derogable IHRL provisions, but only to the extent strictly required by the situation, and never in ways that contradict IHL obligations.

Why IHL lacks formal derogation provisions 🔗

IHL operates on the assumption that armed conflict itself represents an exceptional situation. The drafters designed its rules specifically for wartime circumstances, accounting for military necessity while maintaining humanitarian protections. Because IHL already balances these competing interests, permitting derogations would undermine its core purpose of setting minimum standards that must always apply.

Human rights bodies as IHL monitors and enforcers 🔗

Traditional IHL enforcement mechanisms have proven insufficient. Beyond the International Committee of the Red Cross, IHL currently lacks mechanisms to ensure effectively its own compliance. This structural weakness has prompted victims to seek remedies through the more developed human rights machinery.

Several types of human rights bodies now engage with IHL violations:

UN Charter-based mechanisms: The UN Human Rights Council serves as a forum where 47 elected states can pass resolutions promoting human rights protection. While these resolutions are non-binding, the Council deploys special procedures and confidential complaint mechanisms to address violations. The UN Human Rights Office monitors how human rights principles and IHL obligations are respected in conflict zones, investigating complaints and working with treaty body experts.

Treaty monitoring bodies: Independent expert committees established under core human rights treaties monitor state compliance. These include the Human Rights Committee for the International Covenant on Civil and Political Rights and similar bodies for other conventions. While their findings carry persuasive rather than binding force, they shape international legal discourse and state behavior.

Regional human rights courts: The European Court of Human Rights, Inter-American Court of Human Rights, and African Court on Human and Peoples’ Rights issue binding judgments on member states. These courts increasingly reference IHL when interpreting human rights obligations during armed conflicts, recognizing that both frameworks apply simultaneously.

How human rights bodies interpret and apply IHL 🔗

Human rights monitoring bodies have developed sophisticated approaches to addressing IHL violations. They use IHL norms to interpret human rights concepts that have equivalent meanings in both frameworks. For example, human rights bodies use IHL to clarify concepts like “torture,” “judicial guarantees,” and “degrading treatment” in conflict contexts.

This cross-referencing works in multiple directions. International criminal tribunals for the former Yugoslavia and Rwanda routinely consulted human rights law to interpret IHL provisions. When defining the war crime of torture, these tribunals examined how various human rights bodies understood torture, adapting definitions to fit the IHL framework while maintaining core protections.

Convergence in practice: complementarity over conflict 🔗

The relationship between IHL and IHRL has evolved from separation toward complementarity. The International Court of Justice established a foundational principle: when the two bodies of law address the same issue differently, IHL functions as lex specialis – the more specific law that takes precedence.

This principle of complementarity appears in numerous contexts. The UN Human Rights Committee’s General Comment 29 confirms that the International Covenant on Civil and Political Rights continues applying during armed conflicts, with IHL helping determine what constitutes arbitrary conduct. Similarly, the Committee on the Elimination of Discrimination against Women issued recommendations specifically addressing women’s protection under both IHRL and IHL during conflicts.

State practice increasingly reflects this convergence. When governments submit reports to treaty bodies, they must explain how they implement both IHL and IHRL obligations. Human rights bodies examine whether states properly balance military necessity with humanitarian protection, whether detention procedures meet both IHL and IHRL standards, and whether use of force complies with applicable legal frameworks.

Filling gaps through convergence 🔗

The convergence between IHL and IHRL proves particularly valuable in areas where one framework provides limited guidance. For example, IHL offers detailed rules for international armed conflicts but less comprehensive provisions for non-international armed conflicts. Human rights law fills these gaps by establishing baseline protections that apply regardless of conflict classification.

This complementarity extends to detention practices. While IHL permits internment based on security concerns during armed conflicts, it provides limited procedural guidance in some contexts. Human rights bodies contribute by establishing requirements for periodic review, access to legal counsel, and meaningful opportunities to challenge detention.

Challenges and ongoing debates 🔗

Despite progress toward complementarity, tensions remain. Some states argue that applying human rights law during armed conflicts inappropriately constrains military operations. They contend that IHL already provides adequate protections and that dual application creates confusion.

Human rights bodies counter that their involvement enhances rather than undermines protection. They point out that serious violations of IHL constitute war crimes, giving all states obligations to investigate and prosecute perpetrators. Human rights mechanisms provide additional accountability avenues when domestic systems fail.

Jurisdictional questions also arise. Unlike IHL, which binds both state and non-state parties to conflicts, human rights law primarily governs state conduct. However, human rights bodies have begun addressing situations where non-state armed groups exercise territorial control and governmental functions, creating obligations analogous to state responsibilities.

The evolving protective framework 🔗

The involvement of human rights bodies in applying IHL represents a pragmatic response to enforcement gaps. By monitoring compliance, investigating violations, and issuing findings that shape international discourse, these bodies strengthen the protective framework for conflict-affected populations.

This evolution reflects broader recognition that IHL and IHRL should not operate in isolation. Both frameworks stem from the same fundamental principle: human dignity must be respected even in the darkest circumstances. When human rights bodies apply IHL alongside their traditional mandates, they create a more comprehensive and effective system for protecting people during armed conflicts.

The Indian context illustrates these principles in action. When India faces situations involving armed conflict or situations that threaten public order, it must navigate both IHL obligations under the Geneva Conventions and human rights commitments under international treaties to which it is a party. Courts and human rights institutions examine whether government actions comply with both frameworks, ensuring that emergency measures remain proportionate and non-discriminatory.

What do you think? How can states better balance military necessity with humanitarian protection in modern conflicts? What role should regional human rights courts play when national systems fail to address IHL violations?

References

1. https://www.icrc.org/en/document/what-difference-between-ihl-and-human-rights-law
2. https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2023/6/9/lex-specialis-derogat-generali-simultaneous-complementary-applicability-of-international-humanitarian-law-and-human-rights
3. https://www.lawnow.org/the-protection-of-human-rights-in-armed-conflicts/
4. https://journals.sagepub.com/doi/10.1177/09240519221134723
5. https://www.ohchr.org/en/protecting-human-rights-conflict-situations
6. https://news.un.org/en/story/2023/10/1142582