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Published by Enhelion, 2019-11-30 00:31:55

Module 9

Module 9




International humanitarian law and international human rights law are two distinct but
complementary bodies of law. They are both concerned with the protection of the life, health and
dignity of individuals. IHL applies in armed conflict while human rights law applies at all times, in
peace and in war. The main difference in their application is that international human rights law
allows a State to suspend a number of human rights if it faces a situation of emergency. IHL cannot
be suspended (except as provided in Article 5 to the Fourth Geneva Convention).

IHL is based on the Geneva and Hague Conventions, Additional Protocols and a series of treaties
governing means and methods of waging war such as those banning blinding laser weapons,
landmines and chemical and biological weapons, as well as customary law. International human
rights law is more complex and unlike IHL includes regional treaties. The main global legal
instrument is the Universal Declaration of Human Rights adopted by the UN General Assembly in
1948. Other global treaties include the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights as well as treaties on the prevention
and punishment of torture and other forms of cruel, inhuman or degrading treatment or punishment,
on the elimination of racial discrimination and discrimination against women, or on the rights of the


Today there can no longer be any doubt: international humanitarian law and international human
rights law are near relations. This oft-repeated observation must now be accepted by all. Many
believe that the close relationship between these two areas existed and was perceived “from the
outset”. That is not at all the case. Formerly assigned to separate legal categories, it was only under
the persistent scrutiny of modern analysts that they revealed the common attributes which would
seem to promise many fruitful exchanges in the future.

There are two kinds of reasons for the almost total independence of international humanitarian law
from human rights law immediately after the Second World War. The first relate to the genesis and
development of the branches concerned. The law of war has its roots in Antiquity. It evolved mainly
during wars between European States, and became progressively consolidated from the Middle Ages.
This is one of the oldest areas of public international law; it occupies a distinguished place in the
writings of the classical authors of this branch. Its international aspect is also emphasized by the
contributions of Christianity and the rules of chivalry and of jus armorum.

Human rights are concerned with the organization of State power vis-à-vis the individual. They are
the product of the theories of the Age of Enlightenment and found their natural expression in
domestic constitutional law. In regard to England, mention may be made of the 1628 Petition of
Rights , the 1679 Habeas Corpus Act and the 1689 Bill of Rights ; for the United States of America,
the 1776 Virginia Bill of Rights; for France, the 1789 Declaration of the Rights of Man and of the

Citizen . It was only after the Second World War, as a reaction against the excesses of the Axis
forces, that human rights law became part of the body of public international law. The end of the
1940s was when human rights law was first placed beside what was still called the law of war. The
question of their mutual relationship within the body of international law can be considered only
from that moment.

The other reasons are institutional in nature. The most important one relates to the fact that United
Nations bodies decided to exclude all discussion of the law of war from their work, because they
believed that by considering that branch of law they might undermine the force of jus contra bellum ,
as proclaimed in the Charter, and would shake confidence in the ability of the world body to
maintain peace . In 1949, for example, the United Nations International Law Commission decided
not to include the law of war among the subjects it would consider for codification.

Human rights, which were seen as being within the purview of the United Nations and bodies
specifically set up to promote and develop those rights, were thus distanced from the concerns of the
ICRC, which continued to work solely in the area of the law of war. These institutional factors
affected the development of the rules: the United Nations, the guarantor of international human
rights, wanted nothing to do with the law of war, while the ICRC, the guarantor of the law of war,
did not want to move any closer to an essentially political organization or to human rights law which
was supposed to be its expression. The result was a clear separation of the two branches.


The separate development of these two branches of international law has always limited the
influence that they might have had upon each other. However, makes the establishment of certain
closer links between these two legal domains conceivable.

In this connection, Article 3 common to th e Four Geneva Conventions is revealing. A real miniature
treaty within the Conventions, common Article 3 lays down the basic rules which States are required
to respect when confronted with armed groups on their own territory. It thus diverges from the
traditional approach of humanitarian law which, in principle, did not concern itself with the relations
between a State and its nationals. Such a provision would be more readily associated with the human
rights sphere which, in 1949, had just made its entry into international law with the mention of
human rights in the 1945 Charter of the United Nations and the adoption of the Universal
Declaration of Human Rights in 1948.

The true turning point, when humanitarian law and human rights gradually began to draw closer,
came in 1968 during the International Conference on Human Rights in Tehran, at which the United
Nations for the first time considered the application of human rights in armed conflict. The delegates
adopted a resolution inviting the Secretary-General of the United Nations to examine the
development of humanitarian law and to consider steps to be taken to promote respect for it.
Humanitarian law thus branched out from its usual course of development and found a new opening
within the UN, which had hitherto neglected it - unlike human rights, to which UN attention had
been given from the start.

The convergence which began in 1968 slowly continued over the years and is still in progress
today. Human rights texts are increasingly expressing ideas and concepts typical of humanitarian
law. The reverse phenomenon, although much rarer, has also occurred. In other terms, the gap which
still exists today between human rights and humanitarian law is diminishing. Influences from both
sides are gradually tending to bring the two spheres together.

The interlinking of human rights and humanitarian law can also be seen in the work of bodies
responsible for monitoring and implementing international law.

In this connection, it is interesting to note that in recent years the Security Council has been citing
humanitarian law more and more frequently in support of its resolutions. The latest example of this
tendency can be found in Resolution 808 (1993) on the conflict in the former Yugoslavia, in which
the Security Council decided to establish an international tribunal " for the prosecution of persons
responsible for serious violations of international humanitarian law committed in the territory of the
former Yugoslavia since 1991 " .

A body more specifically concerned with the implementation of human rights, the Commission on
Human Rights, likewise no longer hesitates to invoke humanitarian law to back up its
recommendations. The " Report on the Situation of Human Rights in Kuwait under Iraqi Occupation
" presented at its 48th session is a clear example.

Outside official circles as well, the convergence of human rights law and humanitarian law is
increasingly apparent in the form of private initiatives. Law specialists are concerning themselves
more and more with situations involving widespread violence but which cannot be said to have
reached the point where they could be described as armed conflicts and where humanitarian law
could be applied. Such situations often induce the State concerned to declare a state of emergency
and to suspend most of the human rights that it has undertaken to respect. Though, as we have seen,
such derogations must remain the exception and are in any case excluded for certain rights, there is a
risk of a gap in the law appearing in that area. In order to fill it, a new approach is needed to
protection of the individual. It is becoming apparent that legal instruments should be drawn up
combining elements of both humanitarian and human rights law in order to provide rules that can be
applied in peacetime as well as in wartime.

This objective was behind the adoption in 1990 of the Declaration of Minimum Humanitarian
Standards, the so-called Turku Declaration. This text makes it clear from the outset that its drafters
are determined not to take a position on any dichotomy between humanitarian law and human rights
law. It proclaims principles " which are applicable in all situations, including internal violence,
disturbances, tensions and public emergency, and which cannot be derogated from under any
circumstances " .That determination finds expression in a succession of provisions based alternately
on the spirit of human rights law (for example the prohibition of torture and the principle of habeas
corpus)and on the spirit of humanitarian law (for example the prohibition on harming individuals not
taking part in hostilities and the obligation to treat wounded and sick persons humanely).

The Turku Declaration is the work of a gr oup of experts who met privately for the purpose. It
therefore lacks the force in law that it would have if it had been adopted by an international
body. But it is not meaningless; for one thing, some of its provisions have long been part of general

international law. For another, it was drawn up by qualified specialists in order to meet a need
acknowledged by the international community. It can thus not be ruled out that the Declaration will
gradually gain recognition by a number of international legal institutions. A first step in this direction
has already been taken by the Sub-Commission on Prevention of Discrimination and Protection of
Minorities which referred to it in its Resolution 1192/106 on the human rights situation in Iraq.



During the drafting of the Universal Declaration of 1948, the question of the impact of war on human
rights was touched on only in exceptional cases. Paragraph 2 of the Preamble describes respect for
human rights as a condition for the maintenance of peace. This is jus contra bellum. There was a
shift towards jus in Bello when a few delegates indicated in passing, in a very secondary way, that
the rights envisaged by the Declaration presuppose a state of peace. In the long debates in the Third
Committee of the United Nations, for example, Jiménez de Aréchaga expressed the view that human
rights have to “govern, in times of peace, an international community based on the principles of the
United Nations” A similar comment was made by Campos Ortiz, the Mexican delegate, in the
plenary meetings of the Third Session of the United Nations General Assembly, when he used the
expression “in a peaceful world” . Only the delegate of Lebanon, Mr Azkoul, explicitly went further.
Speaking on Article 26 of the draft , he said that fundamental human rights, as set out in the
Declaration, should also be guaranteed in time of war. The absence of any discussion of the problem
of war can be explained by the general philosophy which prevailed within the United Nations at the
time. There seemed to be a tacit but nevertheless general consensus that the Declaration was intended
for times of peace, of which the United Nations was the guarantor.

In addition, there was a more technical reason: the draft codification of human rights law covered
two branches. On the one hand, the aim was to proclaim a solemn and brief declaration modelled on
the great declarations of national rights. As a proclamation of the United Nations General Assembly,
the text would have been devoid of binding legal force. On the other hand, what was needed was a
binding instrument, a much more detailed text taking up all the rights proclaimed previously, giving
them full weight and expressing them in the form of a positive rule of law. That was a draft
international covenant on human rights. It was often emphasized during the preparatory work that the
Declaration was not a legislative text, that it was not the Covenant, and that consequently, if it was to
preserve its force and its own specific role, it had to be brief and concise and contain no ponderous
and unnecessary elaboration.

The question of the scope of application of a codification of human rights was subsequently raised
only in the context of the Covenant, which was intended to be a truly legal (in the strict sense)
regulation of the issue. Article 4, paragraph 1, of the draft covenant related to this problem, stating
that “in time of war or other national emergency, a state may take measures derogating from its
obligations under Article 2 above” ; paragraph 2 stipulated a State’s duty to inform the Secretary-
General of the United Nations accordingly . The drafting of this provision was not taken further.
Shortly thereafter, work on the draft Covenant was interrupted.


Similarly, in the preparatory work for the 1949 Geneva Conventions, references to human rights
were few and far between. It was principally outside the operational provisions that they were
mentioned, mostly in passing and in vague terms, or as a never superfluous profession of faith.

Although the delegates attending the two conferences were generally not the same, some delegates—
for example the Australian ambassador Hodgson and the Mexican plenipotentiary de Alba—did take
part in both. It is therefore not surprising to find in their statements references to the work being
carried out under the auspices of the United Nations. The highly contentious issue of the preamble to
the Conventions gave rise to many references to human rights. The representative of the Holy See,
Msgr Compte, wanted the preamble to contain an appeal to the “divine principle” on which the rights
and duties of man were based , or a call for “respect for the human person and for human dignity” .
We are not far here from the more general formulations used in the same context, such as “respect
for suffering humanity”. In the end it was proposed that a reference to “universal hum an law” be
included in the preamble. The borrowing from the 1948 Declaration is particularly evident here.
Several delegates also emphasized that the Fourth Geneva Convention, on the protection of civilians,
should be taken together with the Universal Declaration, and that the establishment of such a link in
the preamble would be welcome. The Australian delegate, Hodgson, said it would be sufficient to
refer to the preamble of the Declaration, without drafting a new one for the Convention on prisoners
of war. He made similar comments regarding the preamble for the Convention on civilians, adding
dryly that the Conference “was not called upon to re-write” the 1948 Declaration.

Quite naturally, Article 3 common to the four Conventions also gave rise to references to human
rights. The Special Committee nominated by Committee II of the Conference had proposed, for the
Convention on prisoners of war, a third paragraph containing a kind of Martens clause. It had been
said in the Special Committee that even when a person did not benefit under the provision of the
Convention, that person would nevertheless remain “safeguarded by the principles of the rights of
man as derived from the rules established among civilized nations. In the view of the Danish
delegate, Cohn, Article 3 should not be interpreted in such a way as to deprive individuals of any
rights they may have acquired from other sources, in particular human rights.

Another context in which human rights were mentioned was the protection of the civilian population
in territory occupied by the enemy. Mr de Alba said that wording should be adopted to the effect that
the Occupying Power could modify the legislation of an occupied territory only if that legislation
violated the principles of the Universal Declaration. That would constitute a narrow exception to a

guaranteed legislative status quo in such territories. Elsewhere, the Mexican delegate made mention
in passing of the “fundamental rights of man”.

Incontestably the most solemn reference to human rights came from the President of the Conference,
Max Petitpierre, during the signing ceremony, when he spoke of the parallelism between and the
common ideal of the Geneva Conventions and the Universal Declaration. He noted that the text of
the Conventions incorporated and expressed in concrete terms some of the rights proclaimed by the
Declaration. “The day after tomorrow, we shall celebrate the anniversary of the Universal
Declaration of the Rights of Man which was adopted by the General Assembly of the United Nations
on December the 10th, 1948. It is, we think, interesting to compare that Declaration with the Geneva
Conventions. Our texts are based on certain of the fundamental rights proclaimed in it—respect for
the human person, protection against torture and against cruel, inhuman or degrading punishments or
treatment. Those rights find their legal expression in the contractual engagements which your
Governments have today agreed to undertake. The Universal Declaration of the Rights of Man and
the Geneva Conventions are both derived from one and the same ideal.

The implications of those statements should not be overestimated; they were very sporadic and rarely
placed in an operational context The scope of the Conventions remains dependent on the objective
concept of the protected person, defined according to his status in relation to the events of war (sick,
wounded, prisoner of war, civilian), with very little room for the idea of attributing supreme
subjective rights, without any distinction, deriving solely from the quality of being human. On the
other hand, even in very likely contexts, such as the protection to be afforded to those who have
violated the law of war and the presumption of innocence, human rights are not mentioned at all.

It may be concluded from the above that, although it would be wrong to say that total mutual
ignorance prevailed during the drafting of these texts, nor would it be right to assert that any real
reciprocal influence affected the choices made or the wording selected by the negotiators. What we
see is that after saluting the flag of principles, each camp tackled its subject-matter on the basis of its
own rules and methods. A technical and cultural gap separated these branches of the law which the
vicissitudes of two very different paths had happened to bring relatively close to each other within
the body of international law.1



After the Second World War the evolution of international law related to protection of war
victims and to the conduct of war has been affected by the development of human rights protection.
In times of peace human rights are the fundamental principles for the protection of all persons in all
contexts, but the different circumstances during wartime require special protection for the individual-
civilians as well as combatants. In present time one of the major disabilities is the impact of armed
conflicts on civilians. The nature of harm suffered by the civilians/victims of an armed conflict

1 A relationship between international humanitarian law and human rights law,

highly depends upon the combat methods used and the use of certain particularly harmful
weapons.Often violations of humanitarian law, such as ill treatment of prisoners of war or civilians
and illegal military operations, lead to an increased number of disabilities among the population, and
especially permanent disabilities.2 The United Nations Security Council, expressing its belief in the
connection between holding individuals responsible for international crimes and future prevention,
established the Ad hoc International Criminal Tribunals for the Former Yugoslavia and
Rwanda, as well as the permanent International Criminal Court. The United Nations Voluntary
Fund for Victims of Torture was established to meet the immediate medical, psychological, and
financial needs of survivors. This Fund redistributes voluntary contributions of donor governments
primarily to nongovernmental programs providing direct medical and psychological treatment and
economic, social and legal assistance to survivors of torture.3


The international instruments on human rights define a state of emergency as a public emergency
which threatens the life of a nation like article 4 of the International Covenant on Civil and Political
Rights.Accordingly, war is the greatest public emergency; the emergency must be actual, affect the
whole population and the threat must be to the very existence of the nation. The declaration of
emergency must also be a last resort and a temporary measure.The basic object of both human rights
law and humanitarian law are to extend protection to the human person in all circumstances and in
all types of conflicts. The most relevant of the laws of war as far as human rights are concerned are
the four Geneva Conventions and the two AdditionalProtocols. The Geneva Conventions and
Protocols try specifically to protect all human beings affected by armed conflict, especially those
who are not, or no longer, directly engaged in hostilities. These persons hors de combat are the
wounded and sick, shipwrecked, prisoners of war and civilians. The Conventions also contain
specific provisions covering the four common non-derogable rights of human rights treaties.
Accordingly, the rights protected in the Geneva Conventions and Protocols overlap to a certain
extent with those included in the human rights treaties.


The four Geneva Conventions of 1949 established the principle of international humanitarian law
that a distinction should be made between combatants and civilians, who take no active part in
hostilities. This customary rule of non-combatant immunity is also codified in the Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol 1). Article 51 contains specific rules for the
protection of civilians. Civilians shall enjoy general and specific protection from military operations
and indiscriminate attacks. The provisions of Protocol I, relating to civilian protection, are of great
significance because they establish concrete rules; non-combatant immunity is no longer an abstract

2International norms and standards relating to disability, “HUMAN RIGHTS AND HUMANITARIAN LAW”,
3 International norms and standards relating to disability, “HUMAN RIGHTS AND HUMANITARIAN

The Common Article 3 of the Third and Fourth Geneva Conventions of 1949, relative to the
treatment of Prisoners of War and the Protection of Civilian Persons in Times of War, and
customary law also in international conflicts, provides that "…persons taking no active part in the
hostilities, including members of the armed forces who have laid down their arms and those
placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances
be treated humanely, without any distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria." The same article prohibits violence to life and person,
particularly murder, cruel treatment or torture, humiliating and degrading treatment.


Article 12 of the Geneva Convention of 1864 states that Members of the armed forces and other
persons who are wounded or sick, shall be respected and protected in all circumstances. They shall
be treated humanely and cared for by the Party to the conflict in whose power they may be, without
any adverse distinction founded on sex, race, nationality, religion, political opinions or any other
similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly
prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to
biological experiment". The Parties to the Geneva Conventions also have to search for and collect
the wounded and sick and to ensure them protection and care (article 15).

In Common Article 3 of the Third and Fourth Geneva Conventions of 1949, relative to the
treatment of Prisoners of War and the Protection of Civilian Persons in Times of War special
protection is given to wounded and sick persons in an internal conflict. The article states that " the
wounded and sick shall be collected and cared for they shall be treated humanely and cared for by
the Party to the conflict in whose power they may be, without any adverse distinction founded on
sex, race, nationality, religion, political opinions or any other similar criteria." The parties to the
Conventions also have to search for and collect the wounded and sick and to ensure them protection
and care (article 15).

The definition of wounded and sick for the purpose of the Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol 1) is persons, whether military or civilians, who, because of trauma,
disease or other physical or mental disorder or disability, are in need of medical assistance or care
and who refrain from any act of hostility." The wounded and the sick shall be respected and
protected. They shall be treated humanely in all circumstances, and they shall receive the medical
care they require. It is prohibited to carry out physical mutilations, medical experiments or removal
of tissue or organs, if the medical state of the wounded does not require it.

If the civilians and combatants are not protected by the Protocol or by other international agreements,
they remain under the protection and authority of the principles of international law derived from
established custom, from the principles of humanity and from the dictates of the public conscience
(article 1).


Anti-personnel land mines are primarily designed to cause severe injury to a person. Mines are also
deployed to hinder access or usage of farmlands, roads, waterways and other public utilities. It is
estimated that over 2,000 people are killed or injured by mine explosions every month, most of the
victims are civilians after the hostilities have ended, especially women and children. The victims of
mine explosions, who survive, suffer the loss of one or more limbs in almost all cases. This is why
anti-personnel landmines are a major cause of disability. It is estimated that more than 110 million
active mines are scattered in 70 countries and since a land mine can remain active up to 50 years
after it has been planted, one can speak of a global crisis that requires the attention of the
international community.

The use of anti-personnel land mines is regulated under international humanitarian law both by
custom and by treaties. The existing customary and treaty law was not able to give protection in an
effective way, and a total ban on anti-personnel land mines enjoyed widespread support of the
international community. The efforts of the United Nations, governments and non-governmental
organisations to ban landmines resulted in the Convention on the Prohibition of the Use,
Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction. The
Parties to the Convention undertake never under any circumstances to use anti-personnel mines or to
develop, produce or otherwise acquire anti-personnel mines (article 1). Each Party also undertakes to
destroy anti-personnel mines. To ensure that the substantive obligations of the Convention become
reality in practice, the Convention contains a provision on national implementation measures. Each
State Party shall take all appropriate legal, administrative and other measures, including the
imposition of penal sanctions, to prevent and suppress any activity prohibited under the Convention
(article 9). The Convention also provides for on-site inspections if a Party is suspected of breaching
its obligations under the Convention. Under the Convention, each State Party in a position to do so
has a duty to provide assistance to mine victims. In addition to care and rehabilitation, social and
economic reintegration should also be provided (article 6). Such assistance may be provided through
the United Nations System, the International Committee of the Red Cross (ICRC) or different
A State Party also has the right to seek assistance from others in its efforts to care for its mine
victims (article 6).

The Convention is an important step in banning this method of warfare, which causes injury and
unnecessary suffering. However, the problem is far from being resolved. The level of ratification is
still low and with millions of mines already planted, civilians will continue to be killed or injured.
National societies play an important role in ensuring that the provisions of the Convention are
implemented and respected at the national level. Through discussions and co-operation with their
Governments, Parties can work to promote adoption of effective national legislation or other
administrative measures in order to ensure that the objectives of the Convention are achieved.


Both international humanitarian law (IHL) and international human rights law (IHRL) strive to
protect the lives, health and dignity 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 torture or cruel

treatment, prescribe basic rights for persons subject to a criminal justice process, prohibit
discrimination, comprise provisions for the protection of women and children, and 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 war status 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.

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