Cecily Zamora
Human rights are often infringed upon the most during armed conflicts. International humanitarian law (IHL), human rights law, refugee law, and humanitarian law are three areas of modern international law that attempt to provide protection to victims of war. While these fields are closely linked, they need to be distinguished systematically. Humanitarian law, for example, applies in armed conflict, restricting the actions of warring parties and providing for the protection and humane treatment of persons who are not taking part or can no longer participate in the hostilities. Human rights law, on the other hand, assigns a set of rights to an individual as a human being, regardless of the situation. It applies to combatants and non-combatants alike and does not depend on distinguishing one from another.
| Characteristics | Values |
|---|---|
| Human rights law | Assigns a set of rights to an individual as a human being, regardless of the situation |
| Humanitarian law | Defines the situations and groups of people to whom it is applicable |
| International humanitarian law (IHL) | Developed as the law of international armed conflicts; its main objective is to protect individuals |
| International human rights law | Protects the lives and dignity of individuals, prohibiting torture or cruel treatment |
| Martens clause | States that civilians and combatants remain under the protection and authority of the principles of international law, humanity, and the dictates of public conscience |
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What You'll Learn
International humanitarian law (IHL)
IHL defines what is lawful in war. When confronted with state-sponsored killings in times of armed conflict, human rights courts, commissions, or NGOs must check whether such actions are consistent with IHL before determining whether they violate international human rights law. IHL is based on the Fourth Geneva Convention of 1949, which focuses on protecting civilians in conflict, and its Additional Protocols of 1977 and 2005. The Fourth Geneva Convention lists actions that parties must refrain from in all circumstances, including acts that violate basic human rights, such as violence endangering life, torture, and physical or moral coercion.
IHL violations have significantly increased in the past decade, with a concurrent rise in the risk of attacks on humanitarians and medical workers. The European Commission, through its Civil Protection and Humanitarian Aid Operations department (ECHO), actively promotes global compliance with IHL and humanitarian principles through advocacy. The EU is one of the world's largest humanitarian donors and has consistently supported the promotion and application of IHL. All EU countries have ratified the four Geneva Conventions and their Additional Protocols. The EU has also adopted guidelines to promote compliance with IHL and publishes annual reports on their implementation.
IHL is distinct from human rights law, which focuses on protecting the rights of individuals and groups in respect of the state. While human rights law is mainly protected by national law, IHL is part of the international law of armed conflicts. It is important to understand the differences and relationships between these two branches of international law to comprehend the protection that international law can offer to individuals in armed conflicts.
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Human rights law vs. humanitarian law
International humanitarian law (IHL) and international human rights law are distinct but complementary bodies of law that share some of the same aims. Both strive to protect the lives, health, and dignity of individuals, albeit from different angles.
Human rights law is a set of international rules, established by treaty or custom, on the basis of which individuals and groups can expect and/or claim certain rights that must be respected and protected by their states. These rights are subjective rights of the individual and of groups in respect of the state, mainly their own state. Human rights law applies at all times, in peace and in war. It emerged as a branch of international law only after the Second World War, under the auspices of the United Nations. The Universal Declaration of Human Rights of 1948 first defined human rights law at the international level in a non-binding General Assembly resolution.
IHL, on the other hand, developed as the law of international armed conflicts and is necessarily international law in the traditional sense, an objective legal order governing inter-state relations. Its main objective is to protect individuals, but this protection is not expressed in the form of subjective rights of the victims. Instead, it is a consequence of the rules of behaviour for states and, through them, of individuals. IHL applies in armed conflict, restricting the actions of warring parties and providing for the protection and humane treatment of persons who are not taking part or can no longer take part in the hostilities. It was codified in the second half of the 19th century, under the influence of Henry Dunant, the founding father of the International Committee of the Red Cross.
While IHL and human rights law have developed separately, some human rights treaties include provisions that come from IHL. For example, both bodies of law prohibit torture or cruel treatment, prescribe basic rights for persons subject to criminal process, prohibit discrimination, and contain provisions for the protection of women and children.
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Human rights in armed conflict
Armed conflict often results in devastating loss of civilian life, mass displacement, and violations of human rights and international humanitarian law. International humanitarian law (IHL), also known as the laws of war, establishes what can and cannot be done by parties to an armed conflict. It seeks to minimise human suffering and protect civilians and combatants who are no longer taking part in hostilities. IHL is codified in a broadly coherent international system of binding universal instruments, the most relevant being the four Geneva Conventions (1949) and their two Additional Protocols (1977). The Geneva Conventions set out humanitarian rules to be followed in international armed conflict, including a number of actions that are recognised as violating the most basic human rights, such as violence endangering life, torture, and physical or moral coercion.
Human rights have only recently been protected by international law and are still today mainly protected by national law. International human rights law and international humanitarian law are distinct but complementary branches of international law. While human rights law protects the lives and dignity of individuals, prohibiting torture or cruel treatment, prescribing rights for persons subject to a criminal justice procedure, prohibiting discrimination, and setting out provisions for the protection of women and children, humanitarian law deals with the conduct of hostilities, combatant and prisoner of war status, and the protection of the Red Cross, Red Crescent, and Red Crystal emblems.
In situations of armed conflict, the two branches of law are applied concurrently. When confronted with State-sponsored killings in time of armed conflict, human rights courts, commissions, or NGOs must check whether such actions are consistent with IHL before they can know whether they violate International Human Rights Law. Conversely, the main international body implementing IHL, the ICRC, has long been engaged in activities in situations of internal violence similar to those it performs in international armed conflicts. During such situations, IHL does not apply.
Over the years, experts have focused much attention on the formulation of instruments aimed at alleviating human suffering during war and conflict. In addition to human rights law and humanitarian law, refugee law also provides protection to victims of war. While these fields are closely linked, they need to be distinguished systematically.
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The relationship between police forces and human rights law
International humanitarian law (IHL) and human rights law are two distinct but complementary branches of international law that are relevant to the protection of individuals in armed conflict. While IHL focuses on the rules of behaviour for states and the conduct of hostilities, human rights law is concerned with the protection of individuals' rights, including during war and conflict.
Police forces play a crucial role in upholding human rights law, particularly in relation to the use of force. The authority of police officers to use force derives from the state's duty to maintain public order and ensure human rights and the rule of law. International human rights law regulates the use of force by police, aiming to prevent arbitrary, excessive, or discriminatory uses of force and ensuring accountability for any abuses. Police officers are expected to respect and protect human dignity and maintain and uphold the human rights of all persons, as outlined in the United Nations Human Rights Office of the High Commissioner's Code of Conduct for Law Enforcement Officials of 1979.
To address these issues, education and training are crucial. Organisations like the US Institute of Diplomacy and Human Rights offer courses that teach the foundations of human rights and provide tools to implement these lessons in law enforcement work. Additionally, the UN has published resources such as "Human Rights and Law Enforcement: A Trainer's Guide on Human Rights for the Police" to promote a better understanding of human rights within police forces.
Overall, the relationship between police forces and human rights law is a delicate balance between upholding public order, protecting human rights, and ensuring the effective enforcement of the law. Police forces must navigate this balance while also responding to the needs and concerns of the communities they serve.
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The Martens clause
There are differing interpretations of the Martens Clause's significance on modern international law. Some scholars argue that the clause serves as a reminder that international customary law still applies after a treaty is ratified. Others take a more expansive view, suggesting that because international treaties cannot be all-encompassing, states cannot use that as a justification for an action. The widest interpretation is that conduct in armed conflicts is judged not only according to treaties and custom but also according to the principles of international law referred to by the clause.
The correct interpretation of the Martens Clause remains unclear, and it has been the subject of debate in the International Court of Justice (ICJ). Several national and international courts have considered the Martens Clause when making their judgments, but the laws of humanity or the dictates of the public conscience have not been recognised as new and independent rights.
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Frequently asked questions
The main objective of IHL is to protect individuals during international armed conflicts.
IHL does so by restricting the actions of warring parties and providing for the protection and humane treatment of persons who are not taking part or can no longer take part in the hostilities.
IHL concentrates on specified conflict-related acts and does not give rise to individual claims. On the other hand, human rights law assigns a set of rights to an individual as a human being, regardless of the situation.
Some examples include state-sponsored killings, violence endangering life, torture, and physical or moral coercion.
Three areas of modern international law that attempt to provide protection to victims of war are human rights law, refugee law, and IHL.
