Bridging International Armed Conflict and Human Rights: A Comprehensive Overview

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When armed conflict breaks out, a critical question arises: which legal framework governs the conduct of parties and protects human dignity? The answer lies in understanding the intricate relationship between international humanitarian law and human rights law. While these two bodies of law have developed separately, they increasingly overlap in practice, creating both complementarities and tensions that legal professionals, policymakers, and humanitarian actors must navigate during times of war.

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Understanding the distinct roles of IHL and human rights law

International humanitarian law regulates the conduct of armed conflict and seeks to limit suffering by protecting those not participating in hostilities and restricting the means and methods of warfare. IHL does not address whether resorting to force is lawful, which falls under jus ad bellum principles enshrined in the UN Charter. Rather, IHL focuses on how hostilities are conducted once an armed conflict exists.

Human rights law concerns the relationship between individuals and the state, protecting fundamental rights and freedoms. While traditionally applicable in peacetime, human rights law continues to apply during armed conflict alongside IHL. The scope of these two bodies of law differs significantly. Human rights law applies universally and at all times, though certain rights may be derogated during public emergencies. IHL applies only when an armed conflict exists, and no derogation from its provisions is permitted.

The relationship between IHL and human rights law has evolved from separation to complementarity. Contemporary legal practice recognizes that both bodies of law share fundamental values centered on protecting human dignity and can be applied together to provide maximum protection to individuals affected by conflict.

Many protections overlap between the two frameworks. Both prohibit torture, arbitrary deprivation of life, and cruel treatment. Both require humane treatment of persons in detention and fair trial guarantees. When these areas intersect, they mutually reinforce each other, creating stronger protection for individuals caught in armed conflict.

Derogation and non-derogable rights

A key distinction between the two frameworks concerns derogation. Human rights treaties permit states to derogate from certain rights during public emergencies threatening the life of the nation, provided such measures are proportionate, non-discriminatory, and comply with other international law obligations including IHL. However, certain core rights remain non-derogable, including the right to life, prohibition of torture, prohibition of slavery, and prohibition of retroactive criminal laws.

In contrast, IHL allows no derogation whatsoever. All IHL obligations must be respected in all circumstances throughout the conflict, regardless of the actions of adversaries or the exigencies of the situation. This creates a floor of protection that cannot be lowered even during the most severe emergencies.

When IHL and human rights law provide different standards for the same situation, the principle of lex specialis helps determine which norm applies. This principle holds that the more specific law prevails over the more general law. In armed conflict contexts, IHL is typically considered the lex specialis because it was specifically designed to regulate hostilities.

The International Court of Justice has invoked lex specialis when addressing apparent conflicts between IHL and human rights law. For example, in determining whether a killing during armed conflict constitutes arbitrary deprivation of life, the court has stated that IHL serves as the appropriate framework for assessing lawfulness, as it was specifically designed to regulate the use of force during hostilities.

Challenges in applying lex specialis

The application of lex specialis is not always straightforward. Questions arise about when IHL should be considered the specific law, particularly in non-international armed conflicts where IHL rules are less developed. Additionally, some scholars argue that the language of lex specialis should be abandoned when discussing the relationship between IHL and human rights law, favoring instead a harmonious interpretation approach that considers both frameworks in light of each other.

Areas exclusively governed by each framework

While overlap exists, each legal framework also has exclusive domains. IHL alone governs certain aspects of warfare, including the conduct of hostilities, targeting decisions, permissible weapons and tactics, and treatment of prisoners of war. These matters fall outside the traditional scope of human rights law, which was not designed to regulate military operations.

Conversely, human rights law addresses many peacetime concerns that IHL does not regulate, such as freedom of press, the right to vote, freedom of assembly, and labor rights. Even during armed conflict, these rights may continue to apply, though they may be subject to lawful restrictions or derogation depending on the circumstances.

Practical implications for protection during conflict

Understanding the interplay between IHL and human rights law has significant practical implications. For military commanders, it means that operations must comply with both IHL rules on targeting and proportionality and human rights standards on the use of force. For detention operations, both IHL provisions on internment and human rights guarantees regarding liberty and fair treatment must be respected.

For victims seeking justice, the complementary application of both frameworks can provide multiple avenues for accountability. Violations may constitute both war crimes under IHL and human rights abuses, enabling prosecution in various forums including international criminal tribunals and human rights courts. The enforcement mechanisms differ between the two frameworks, with human rights law providing individual complaint mechanisms while IHL focuses on criminal prosecution of perpetrators.

The evolving relationship in contemporary conflicts

Modern armed conflicts, particularly those involving non-state actors, terrorism, and transnational operations, have intensified debates about the relationship between IHL and human rights law. Issues such as detention without trial in counter-terrorism operations, targeted killings, and occupation have required courts and legal scholars to carefully examine how both frameworks apply simultaneously.

The increasing recognition that human rights law applies extraterritorially in some circumstances has further complicated the landscape. States conducting military operations abroad may face obligations under both IHL and human rights treaties, requiring careful analysis of which standards govern specific actions in specific contexts.

What do you think? How can the international community better harmonize IHL and human rights law to ensure maximum protection for civilians in armed conflict? Should the lex specialis principle continue to guide the resolution of apparent conflicts between these frameworks, or is a different approach needed for contemporary armed conflicts?

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References
  1. https://www.icrc.org/en/document/what-is-international-humanitarian-law
  2. https://www.nyulawglobal.org/globalex/international_humanitarian_law1.html
  3. https://www.icrc.org/en/document/interplay-between-IHL-IHRL-article-droege
  4. https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2023/6/9/lex-specialis-derogat-generali-simultaneous-complementary-applicability-of-international-humanitarian-law-and-human-rights
  5. https://www.icrc.org/en/download/file/1402/ihl-and-ihrl.pdf
  6. https://www.unodc.org/e4j/en/terrorism/module-6/key-issues/relationship-between-ihl-and-intern-human-rights-law.html
  7. https://casebook.icrc.org/a_to_z/glossary/lex-specialis
  8. https://lawexplores.com/mis-use-of-general-principles-of-law-lex-specialis-and-the-relationship-between-international-human-rights-law-and-the-laws-of-armed-conflict/
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Understanding IHL

1 What is Law and its Role in Society? How is A Country’s Legal System Organised?

  1. What is ‘Law’?
  2. What is the Role of Law in Society?
  3. How is Law Made?
  4. What are the Sources of Law?
  5. How do the Legal Systems of South Asia Work?

2 Where do We Find International Law? How is it Made and How does it Function?

  1. What are the Basic Concepts of International Law?
  2. What are the Sources of International Law?
  3. What is the Meaning of Treaty Making and its Adoption?
  4. What is Customary International Law?
  5. What are General Principles of Law?

3 What is IHL? When Does IHL Apply? How has IHL Developed?

  1. What is International Humanitarian Law (IHL)?
  2. When does IHL Apply?
  3. How has IHL Developed in Buddhist Traditions?
  4. How has IHL Developed in Christian Traditions?
  5. How has IHL Developed in Hindu Traditions?
  6. How has IHL Developed in Islamic Traditions?

4 Where do You Find IHL?

  1. What are the Current Sources of IHL?
  2. What are the Names of IHL Instruments?
  3. How has the Hague Law Developed?
  4. How has the Geneva Law Developed?
  5. How have the Hague Law and the Geneva Law Merged into One?

5 What is Law of Armed Conflict and Law During Armed Conflict?

  1. Principle of Prohibition of Use of Force
  2. Does the Application of IHL Dependent on a Formal Declaration of War?
  3. Right of an Individual or a Collective Self-defence
  4. Just War

6 What is International Armed Conflict? (WAR)

  1. Historical Background
  2. The Concept of Armed Conflict of an International Character
  3. International Armed Conflict and Human Rights
  4. Occupation under Geneva Convention IV

7 What is Non-international Armed Conflict? (Internal War)

  1. Internationalised Armed Conflicts
  2. Historical Background
  3. Different Thresholds for Application
  4. Policy Considerations and Operational Needs
  5. Article 3 of the Geneva Convention
  6. Applicability of the Law

8 Who are the Participants in War?

  1. Combatant Status Before Protocol I of 1977
  2. Third Geneva Convention of 1949
  3. Combatant Status after Protocol I
  4. Loss of Combatant Status
  5. Spies and Mercenaries

9 Who are the Protected Persons under IHL? What are the Protected Objects under IHL?

  1. Protected Persons under IHL
  2. Protected Objects under IHL
  3. Protection of Cultural Property during Armed Conflict
  4. The Grant of Enhanced Protection
  5. The ENMOD Convention

10 Why are Certain Rules more Important in IHL?

  1. Essential Rules of International Humanitarian Law
  2. Why are these Rules Basic and Important?
  3. Common Principles
  4. Principles Proper to the Victims of Conflicts
  5. Principles Proper to the Law of War

11 Rule of Distinction

  1. General Principles of IHL
  2. Position of Distinction of Combatants and Non-combatants in Ancient Texts
  3. The Challenge of Asymmetric Conflicts
  4. Characteristics of Civilians and Combatants
  5. Rule of Distinction under the Additional Protocols 1977 to Geneva Conventions 1949

12 Rule of Proportionality

  1. General Principles of IHL
  2. The Development of Military Necessity in International Humanitarian Law
  3. Difference between Doctrine of Military Necessity and Principle of Proportionality
  4. The Principle of Proportionality in International Humanitarian Law

13 Prohibited and Controlled Weapons

  1. Chemical Weapons
  2. Biological Weapons
  3. Nuclear Weapons
  4. Anti-Personnel Land Mines
  5. Other Conventional Weapons

14 What are the Rules of Protection of the Sick, Wounded and Shipwrecked in War?

  1. The Principle of Immunity of Wounded and Sick Military Personnel and of Medical Personnel and Equipment
  2. Tracing Wounded Sick and Missing Military Personnel in War on Land
  3. The Protection of Wounded Sick and Shipwrecked Military Personnel in War at Sea
  4. Tracing Wounded Sick Shipwrecked and Missing Military Personnel in War at Sea

15 What are the Rules of Protection of Prisoners of War?

  1. Rationale for Protection of Prisoners of War
  2. The 1949 Convention: Protection of Prisoners of War
  3. Beginning of Captivity
  4. Conditions of Captivity
  5. Escape of Prisoners of War
  6. Termination of Captivity

16 What are the Rules of Protection of Civilians?

  1. The Geneva Conventions and Civilian Protection
  2. General Protection of Populations Against Certain Consequences of War
  3. Provisions Common to the Territory of Parties to the Conflict and to Occupied Territory
  4. Aliens in the Territory of a Party to the Conflict
  5. Occupied Territory
  6. Internment
  7. Information Bureau and Tracing Agency

17 What is Meant by the “Grave Breaches” of IHL?

  1. Grave Breaches of the Geneva Conventions in International Armed Conflicts
  2. The Concept of Grave Breaches of IHL and the Concept of War Crimes
  3. Scope of Universal Jurisdiction and Grave Breaches
  4. Individual Responsibility
  5. Establishment of the ICC
  6. Application of the ‘Grave Breaches’ Provisions in Non-International Armed Conflicts

18 What are the Monitoring Mechanisms for Determining Protection?

  1. The Protecting Power in the Framework of Geneva Conventions
  2. The International Fact-finding Mission
  3. Penal Sanctions
  4. Implementation of International Humanitarian Law during Non-International Armed Conflicts
  5. International Committee of the Red Cross and IHL
  6. Implementation Roles of the UN
  7. The Role of Non-governmental Organizations
  8. National Measures

19 What are the Protective Emblems?

  1. The Origins and Development of the Distinctive Emblems
  2. Additional Protocol III and the Introduction of the Red Crystal
  3. The Geneva Conventions and the Protection of Distinctive Emblems
  4. Misuse of the Emblems

20 International Humanitarian Law and Human Rights Law

  1. Origin and Nature of Human Rights Law and Humanitarian Law
  2. Conceptual Similarities in Present-day Humanitarian Law and Human Rights Law
  3. The Mutual Influence of Human Rights and Humanitarian Law

21 International Refugee Law

  1. Origins and Development of International Refugee Law
  2. Determination of Refugee Status
  3. The Concept of Asylum
  4. International Humanitarian Law and Refugees
  5. Refugee Protection in India
  6. Internally Displaced Persons

22 What is the Relationship of IHL with International Criminal Law?

  1. Individual Criminal Responsibility
  2. Command Responsibility
  3. War Crimes and Crimes against Humanity
  4. Nuremberg and Tokyo International Tribunals
  5. International Criminal Prosecution
  6. The Failure of Prosecution through National Jurisdiction
  7. The Problems of International Criminal Courts

23 IHL and the Mandate of the Constitution of India

  1. Geneva Conventions Act 1960
  2. National Implementation of International Humanitarian Law
  3. Case Laws