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ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN ______

International Humanitarian Law and International Human Law Similarities and differences

Both international humanitarian law (IHL) and international law (IHRL) strive to protect the lives, health and of individuals, albeit from a different angle. It is therefore not surprising that, while very different in formulation, the essence of some of the rules is similar, if not identical. For example, the two bodies of law aim to protect human life, prohibit or cruel treatment, prescribe basic rights for persons subject to a criminal process, prohibit discrimination, comprise provisions for the protection of women and children, regulate aspects of the right to food and health. On the other hand, rules of IHL deal with many issues that are outside the purview of IHRL, such as the conduct of hostilities, combatant and prisoner of and the protection of 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 to assembly, to vote and to strike.

What is international well as Conventions on In principle, IHRL applies at all times, humanitarian law? (1948), Racial Discrimination (1965), i.e. both in peacetime and in situations Discrimination Against Women (1979), of armed conflict. However, some IHRL IHL is a set of international rules, Torture (1984) and Rights of the Child permit governments to established by or custom, which (1989). The main regional instruments derogate from certain rights in are specifically intended to solve are the European for the situations of public humanitarian problems directly arising Protection of Human Rights and threatening the life of the . from international or non-international Fundamental Freedoms (1950), the Derogations must, however, be armed conflicts. It protects persons and American Declaration of the Rights and proportional to the crisis at hand, must that are, or may be, affected Duties of Man (1948) and Convention not be introduced on a discriminatory by an armed conflict and limits the on Human Rights (1969), and the basis and must not contravene other rights of the parties to a conflict to use African on Human and rules of – including methods and means of warfare of their Peoples' Rights (1981). rules of IHL. choice. While IHL and IHRL have historically Certain human rights are never IHL main treaty sources applicable in had a separate development, recent derogable. Among them are the right to international armed conflict are the four treaties include provisions from both life, prohibition of torture or cruel, Conventions of 1949 and their bodies of law. Examples are the inhuman or degrading treatment or Additional of 1977. The main Convention on the Rights of the Child, punishment, prohibition of and treaty sources applicable in non- its Optional Protocol on the servitude and the prohibition of international armed conflict are article 3 Participation of Children in Armed retroactive criminal . common to the Conflict, and the Rome of the and Additional Protocol II of 1977. International Criminal . Who is bound by these bodies of law? ....and what is international When are they applicable? human rights law? IHL binds all actors to an armed IHL is applicable in times of armed conflict: in international conflicts it must IHRL is a set of international rules, conflict, whether international or non- be observed by the states involved, established by treaty or custom, on the international. International conflicts are whereas in internal conflict it binds the basis of which individuals and groups involving two or more states, and government, as well the groups fighting can expect and/or claim certain wars of liberation, regardless of against it or among themselves. Thus, behavior or benefits from governments. whether a has been IHL lays down rules that are applicable Human rights are inherent entitlements made or whether the parties involved to both and non-state actors. which belong to every person as a recognize that there is a state of war. IHRL lays down rules binding consequence of being human. Non-international armed conflicts are governments in their relations with Numerous non-treaty based principles those in which government forces are individuals. While there is a growing and guidelines ("") also belong fighting against armed insurgents, or body of opinion according to which non- to the body of international human rebel groups are fighting among state actors – particularly if they rights standards. themselves. Because IHL deals with an exercise government-like functions – IHRL main treaty sources are the exceptional situation – armed conflict – must also be expected to respect International Covenants on Civil and no derogations whatsoever from its human rights norms, the issue remains Political Rights and on Economic, provisions are permitted. unsettled. Social and Cultural Rights (1966), as

International Committee of the Red Cross Are individuals also bound? IHRL, being tailored primarily for assistance to victims of war, peacetime, applies to all persons. encourages states to implement their IHL imposes obligations on individuals IHL obligations and promotes and and also provides that persons may be What is the system of develops IHL. ICRC's right of initiative held individually criminally responsible implementation... allows it to offer its services or to for "grave breaches" of the Geneva ...at the national level ? undertake any action which it deems Conventions and of Additional Protocol necessary to ensure the faithful I, and for other serious violations of the The duty to implement both IHL and application of IHL. laws and customs of war (war ). IHRL lies first and foremost with states. The IHRL supervisory system consists IHL establishes universal States have a duty to take a number of of bodies established either by the over persons suspected of having legal and practical measures – both in United Charter or by the main committed all such acts. With the entry peacetime and in armed conflict IHRL treaties. The principal UN into force of the International Criminal situations – aimed at ensuring full Charter-based organ is the UN Court, individuals will also be compliance with IHL, including : Commission on Human Rights and its accountable for war crimes committed Sub-Commission on the Promotion and in non-international armed conflict.  translating IHL treaties; Protection of Human Rights. "Special While individuals do not have specific  preventing and punishing war procedures" have also been developed duties under IHRL treaties, IHRL also crimes, through the enactment of by the Commission over the last two provides for individual criminal penal ; decades, i.e. thematic or country- responsibility for violations that may specific special rapporteurs, and  protecting the red cross and red constitute international crimes, such as working groups entrusted with crescent emblems; genocide, and monitoring and reporting on the human torture. These crimes are also subject  applying fundamental and judicial rights situations within their mandates. to . guarantees; Six of the main IHRL treaties also  disseminating IHL; The ad hoc International Criminal provide for the establishment of for the former Yugoslavia and  training personnel qualified in IHL committees of independent experts , as well as the International and appointing legal advisers to charged with monitoring their Criminal Court, have jurisdiction over the armed forces. implementation. violations of both IHL and IHRL. IHRL also contains provisions obliging A key role is played by the Office of the High Commissioner for Human Rights Who is protected? states to implement its rules, whether immediately or progressively. They which has primary responsibility for the overall protection and promotion of IHL aims to protect persons who do must adopt a variety of legislative, human rights. The Office aims to not, or are no longer taking part in administrative, judicial and other enhance the effectiveness of the UN's hostilities. Applicable in international measures that may be necessary to human rights machinery, to increase armed conflicts, the Geneva give effect to the rights provided for in UN system-wide implementation and Conventions deal with the treatment of the treaties. This may include enacting coordination of human rights, to build the wounded and sick in the armed criminal legislation to outlaw and national, regional and international forces in the field (Convention I), repress acts prohibited under IHRL capacity to promote and protect human wounded, sick and shipwrecked treaties, or providing for a remedy rights and to disseminate human rights members of the armed forces at before domestic for violations of texts and information. (Convention II), prisoners of war specific rights and ensuring that the (Convention III) and persons remedy is effective. ...at the regional level? (Convention IV). Civilian persons include internally displaced persons, ...at the international level? The work of regional human rights women, children, , stateless courts and commissions established persons, journalists and other As regards international under the main regional human rights categories of individuals (Convention IV implementation, states have a treaties in , the and and Protocol I). collective responsibility under article 1 common to the Geneva Conventions to Africa is a distinct feature of IHRL, with Similarly, the rules applicable in non- respect and to ensure respect for the no equivalent in IHL. Regional human international armed conflict (article 3 Conventions in all circumstances. The rights mechanisms are, however, common to the Geneva Conventions supervisory system also comprises the increasingly examining violations of and Protocol II) deal with the treatment mechanism, the IHL. of persons not taking, or no longer enquiry procedure and the International The European Court of Human Rights taking part in the hostilities. Fact-Finding Commission envisaged in is the centrepiece of the European IHL also protects through Article 90 of Protocol I. States parties to system of human rights protection rules on the conduct of hostilities. For Protocol I also undertake to act in under the 1950 European Convention. example, parties to a conflict must at all cooperation with the in The main regional supervisory bodies times distinguish between combatants situations of serious violations of in the Americas are the Inter-American and non-combatants and between Protocol I or of the Geneva Commission on Human Rights and the and non military targets. Neither Conventions. Inter-American Court of Human Rights. the civilian population as a whole nor The ICRC is a key component of the The African Commission on Human individual civilians may be the object of system, by virtue of the mandate and Peoples' Rights is the supervisory attack. It is also prohibited to attack entrusted to it under the Geneva body established under the 1981 military objectives if that would cause Conventions, their Additional Protocols African Charter. A treaty establishing disproportionate harm to civilians or and the of the International an African human rights court has not civilian objects. Red Cross and Red Crescent yet come into force. Movement. It ensures protection and 01/2003

International Committee of the Red Cross