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"A mind not to be chang'd by time or place." What I think while here in Durham, I will still think when I am in Pago Pago.
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by Kudakwashe Kanhutu
Critically discuss the relationship between human rights and international humanitarian law.
The relationship between Human Rights Law (HRL) and International Humanitarian Law (IHL) can be characterised as that of identical twins separated at birth. The two have more or less the same features and serve, again, more or less, the same purpose. The key differences are that human rights obligations should be observed all the time, while IHL governs conduct of hostilities during armed conflict. The other difference between them is where they are codified, with human rights seemingly falling in the United Nations General Assembly declarations which are more recommendatory than binding law while, IHL is codified in Treaties and Customary Law therefore has the force of law due to the pact sunt servanda principle. This paper will first discuss human rights in general and the laws in place for their protection. It will then turn to the genesis of HRL and IHL so as to show where they were separated and what this implies. It will then show the attempts that have been made to reconcile the two regimes; such ‘a humanization of IHL’ is evinced by the coming into being of the International Criminal Court.
Human Rights:
To have a right is to be entitled to something because it is owed to you and if it is denied or threatened you can make special claims to it that trump any other considerations such as political emergencies or national security. Human rights are, literally, the rights one has simply because one is a human being. They are equal, inalienable, and universal to all human beings. The most common example is the right to life, which can be found in almost all human rights declarations. In the human rights regime itself, there is a subdivision between fundamental and other ordinary rights. The fundamental rights are those which relate to civil and political rights such as the right to vote, the right to life, liberty and security of person. The other ordinary rights are those that involve economic, social and cultural rights such as the right to have a paid work and education. The official mantra wants rights to be thought of as "universal, indivisible, interdependent and interrelated," as it is argued that it is useless to have the right to vote if you are illiterate.
There is opposition to this view of economic rights as fundamental rights by those who think treating them as fundamental undermines the functioning of free market economies which may actually result in a downgrading of civil and political rights. There is also very rarely an invocation of the economic and social rights not being fulfilled on the international level as a point of contention, while the whole humanitarian intervention debate rests on situations where civil and political rights are being violated. This point, of violation, is the reason why this paper will be discussing what are the suitable rights protection mechanisms and when. The excesses of the Second World War led the international community to articulate a regime for protecting human rights. The important issue really is what are the overlaps and clashes between the two regimes in protecting people’s rights in the international system.
International Humanitarian Law:
Human rights, properly conceived, are about State power vis-à-vis its citizens, while international humanitarian law is the jus in bello side of Just War Theory: it is concerned with regulating the conduct of hostilities – including the use of weaponry – and the protection of victims in situations of both international and non-international armed conflict.
Jus in bello also operates quite independently of jus ad bellum, which is to say, it does not matter who the aggressor is, both sides are expected to observe the precepts of IHL. These precepts constitute customary international law and are codified in the Hague Conventions of 1899 and 1907, and in the Geneva Conventions of 1949 and its Two Additional Protocols of 1977. The crucial feature of IHL is that it makes a distinction between combatants and civilians. Combatants may be targeted while civilians may not, it also lays out the treatment of Prisoners of War and the sick and wounded. The important jus in bello principles then are discrimination and proportionality. Discrimination means the combatants may not target neutrals, civilians or those no longer taking a part in hostilities either deliberately or through the use of indiscriminate weapons. Proportionality means that any offensive action must remain proportional to the desired ends. This then is a tempering of the extent and violence of warfare so as to minimize destruction and casualties.
Does IHL, by being lex specialis – which applies after the breakout of an armed conflict – then mean that HRL ceases to exist? Human rights law still applies but the lex specialis of IHL is defensible when we consider that the essence of war is killing, and human rights regime which give rights such as the universal right to life would be unwieldy in conflict situations. However, human rights law still applies in conflict situations as has been affirmed by the International Court of Justice that some human rights norms have attained a peremptory nature thus cannot be derogated from for any reason. The prohibition against slavery and genocide would still hold in conflict situations and States may not cite supreme emergencies as reasons to commit genocide. What remains to be seen then, is if there are such contiguities between HRL and IHL why then were they separated at birth?
Robert Kolb sees the reason behind this as institutional concerns. The United Nations is said to not have wanted to include any discussion of the law of war in their consideration because they believed that considering that branch of law might undermine the force of jus contra bellum. This is the conviction that they were creating an institution that would save mankind from the scourge of war. A valid instinct considering that a catastrophic world war had just ended. The International Committee of the Red Cross which is credited with the first IHL precepts also refused to be wedded to the United Nations seeing as it was a political organisation and the ICRC is founded on neutrality. Thus the two regimes were separated.
Humanization of IHL:
The distinction made in this paper between Human Rights Law and International Humanitarian Law is that of lex generalis and lex specialis respectively. IHL is proper to the conduct of armed conflict as this is a special situation where the right to life of combatants, which universal human rights precepts would insist on, cannot be guaranteed. However, the laws are not silent in law as grave violations such as genocide and slavery are still not permitted as they are seen to be jus cogens norms from which no derogation is permitted. Human Rights Law still applies and the two regimes are seen to be coming even closer with the advent of International Criminal Law which seeks to punish the abusers of human rights in conflict if their States are unwilling or unable to punish them.
Critically discuss the relationship between human rights and international humanitarian law.
The relationship between Human Rights Law (HRL) and International Humanitarian Law (IHL) can be characterised as that of identical twins separated at birth. The two have more or less the same features and serve, again, more or less, the same purpose. The key differences are that human rights obligations should be observed all the time, while IHL governs conduct of hostilities during armed conflict. The other difference between them is where they are codified, with human rights seemingly falling in the United Nations General Assembly declarations which are more recommendatory than binding law while, IHL is codified in Treaties and Customary Law therefore has the force of law due to the pact sunt servanda principle. This paper will first discuss human rights in general and the laws in place for their protection. It will then turn to the genesis of HRL and IHL so as to show where they were separated and what this implies. It will then show the attempts that have been made to reconcile the two regimes; such ‘a humanization of IHL’ is evinced by the coming into being of the International Criminal Court.
Human Rights:
To have a right is to be entitled to something because it is owed to you and if it is denied or threatened you can make special claims to it that trump any other considerations such as political emergencies or national security. Human rights are, literally, the rights one has simply because one is a human being. They are equal, inalienable, and universal to all human beings. The most common example is the right to life, which can be found in almost all human rights declarations. In the human rights regime itself, there is a subdivision between fundamental and other ordinary rights. The fundamental rights are those which relate to civil and political rights such as the right to vote, the right to life, liberty and security of person. The other ordinary rights are those that involve economic, social and cultural rights such as the right to have a paid work and education. The official mantra wants rights to be thought of as "universal, indivisible, interdependent and interrelated," as it is argued that it is useless to have the right to vote if you are illiterate.
There is opposition to this view of economic rights as fundamental rights by those who think treating them as fundamental undermines the functioning of free market economies which may actually result in a downgrading of civil and political rights. There is also very rarely an invocation of the economic and social rights not being fulfilled on the international level as a point of contention, while the whole humanitarian intervention debate rests on situations where civil and political rights are being violated. This point, of violation, is the reason why this paper will be discussing what are the suitable rights protection mechanisms and when. The excesses of the Second World War led the international community to articulate a regime for protecting human rights. The important issue really is what are the overlaps and clashes between the two regimes in protecting people’s rights in the international system.
International Humanitarian Law:
Human rights, properly conceived, are about State power vis-à-vis its citizens, while international humanitarian law is the jus in bello side of Just War Theory: it is concerned with regulating the conduct of hostilities – including the use of weaponry – and the protection of victims in situations of both international and non-international armed conflict.
Jus in bello also operates quite independently of jus ad bellum, which is to say, it does not matter who the aggressor is, both sides are expected to observe the precepts of IHL. These precepts constitute customary international law and are codified in the Hague Conventions of 1899 and 1907, and in the Geneva Conventions of 1949 and its Two Additional Protocols of 1977. The crucial feature of IHL is that it makes a distinction between combatants and civilians. Combatants may be targeted while civilians may not, it also lays out the treatment of Prisoners of War and the sick and wounded. The important jus in bello principles then are discrimination and proportionality. Discrimination means the combatants may not target neutrals, civilians or those no longer taking a part in hostilities either deliberately or through the use of indiscriminate weapons. Proportionality means that any offensive action must remain proportional to the desired ends. This then is a tempering of the extent and violence of warfare so as to minimize destruction and casualties.
Does IHL, by being lex specialis – which applies after the breakout of an armed conflict – then mean that HRL ceases to exist? Human rights law still applies but the lex specialis of IHL is defensible when we consider that the essence of war is killing, and human rights regime which give rights such as the universal right to life would be unwieldy in conflict situations. However, human rights law still applies in conflict situations as has been affirmed by the International Court of Justice that some human rights norms have attained a peremptory nature thus cannot be derogated from for any reason. The prohibition against slavery and genocide would still hold in conflict situations and States may not cite supreme emergencies as reasons to commit genocide. What remains to be seen then, is if there are such contiguities between HRL and IHL why then were they separated at birth?
Robert Kolb sees the reason behind this as institutional concerns. The United Nations is said to not have wanted to include any discussion of the law of war in their consideration because they believed that considering that branch of law might undermine the force of jus contra bellum. This is the conviction that they were creating an institution that would save mankind from the scourge of war. A valid instinct considering that a catastrophic world war had just ended. The International Committee of the Red Cross which is credited with the first IHL precepts also refused to be wedded to the United Nations seeing as it was a political organisation and the ICRC is founded on neutrality. Thus the two regimes were separated.
Humanization of IHL:
The distinction made in this paper between Human Rights Law and International Humanitarian Law is that of lex generalis and lex specialis respectively. IHL is proper to the conduct of armed conflict as this is a special situation where the right to life of combatants, which universal human rights precepts would insist on, cannot be guaranteed. However, the laws are not silent in law as grave violations such as genocide and slavery are still not permitted as they are seen to be jus cogens norms from which no derogation is permitted. Human Rights Law still applies and the two regimes are seen to be coming even closer with the advent of International Criminal Law which seeks to punish the abusers of human rights in conflict if their States are unwilling or unable to punish them.
Notes:
Kolb, Robert (1998), The relationship between international humanitarian law and human rights law: A brief history of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions. International Review of the Red Cross, No. 324. Available online here: http://www.icrc.org/eng/resources/documents/article/other/57jpg2.htm Accessed 05 May 2014.
Amstutz, Mark, (2013), International Ethics: Concepts, Theories and Cases in Global Politics. Plymouth: Rowman & Littlefields Publishers Inc
Kolb, Robert (1998), The relationship between international humanitarian law and human rights law: A brief history of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions. International Review of the Red Cross, No. 324. Available online here: http://www.icrc.org/eng/resources/documents/article/other/57jpg2.htm Accessed 05 May 2014.
Amstutz, Mark, (2013), International Ethics: Concepts, Theories and Cases in Global Politics. Plymouth: Rowman & Littlefields Publishers Inc
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