International human rights law
International human rights law (IHRL) comprises a set of rules, established by treaty or customary law, that outlines the obligations and duties of states to respect, to protect and to fulfil human rights. It enables individuals and groups to claim certain behaviour or benefits from government. These formal legal undertakings are based on recognition that individuals have such inherent rights (Darcy, 1997).
Whereas IHL binds all parties to armed conflicts (states and organised armed groups), human rights law regulates states in their relations with individuals or groups of individuals under their jurisdiction. There is ongoing debate about whether organised armed groups (particularly those that exercise government-like functions) should also be obligated under human rights law.
IHRL’s main treaty sources are the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966). Other sources include the Conventions on:
- Genocide (1948)
- Racial Discrimination (1965)
- Discrimination against Women (1979)
- Torture (1984)
- Rights of the Child (1989)
- Persons with Disabilities (2006).
The main regional instruments are: the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); the American Declaration of the Rights and Duties of Man (1948) and Convention on Human Rights (1969); and the African Charter on Human and Peoples’ Rights (1981).
Human rights, humanitarianism and IHL
Human rights, humanitarianism (the humanitarian tradition) and IHL are linked: they are universal in their application and based on recognition of shared humanity. Three fundamental principles common to human rights law and humanitarian law are inviolability, non-discrimination and security of the person (Pictet, 1975, p. 34). These principles are the basis of a number of human rights and IHL rules, such as the right to life/protection of human life, the prohibition of torture or any inhuman or degrading treatment, the prohibition of discrimination, and basic rights to a fair trial.
Human rights, humanitarianism and IHL are also linked to human need, although human rights are concerned more broadly with safeguarding comprehensive aspects of an individual’s physical, economic, political and social security. It is the public and political aspect of human rights that has often made humanitarian workers and IHL lawyers wary of delving into this area for fear of compromising the neutrality of humanitarian work (Darcy, 1997).
Nonetheless, there has in recent years been growing discussion of the benefits of a rights-based approach to humanitarian assistance. A rights-based approach redefines recipients of assistance, both women and men, as active subjects and rights-holders with entitlements (and obligations) rather than as passive victims and recipients of charity. It is designed to highlight recipients’ voices, identifying their needs and priorities. It is also designed to produce a relationship of responsibility and accountability between humanitarian agencies and the people they serve, or between these same individuals and their government (Concannon and Lindstrom, 2011). The UNHCR (the UN’s Refugee Agency), for example, has – along with its partners – taken steps to ensure that humanitarian assistance is organically linked with protection. Protection is defined by the Inter-Agency Standing Committee (IASC), which co-ordinates humanitarian assistance across agencies, as ‘all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law, namely human rights law, international humanitarian law and refugee law’.
The Interplay of IHL and IHRL
While international humanitarian law only applies during armed conflict, human rights do not cease to be applicable in armed conflicts. Human rights treaties, however, allow states to derogate from certain rights during a public emergency that threatens the nation (including a state of war), provided they fulfil certain preconditions and follow specified procedures. Some rights, though, (such as the right to life, freedom from torture, freedom of thought, equality and non-discrimination) can never be suspended. IHL does not allow for derogation.
The concurrent application of IHL and IHRL has been expressly recognised by various international tribunals, including the International Court of Justice, the European Court of Human Rights and the Inter-American Commission on Human Rights. The ICJ observed in its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons that ‘the protection of the International Covenant on Civil and Political [ICCPR] rights does not cease in times of war’ (apart from in situations of derogation).
The relationship between IHL and IHRL is thus considered to be one of complementarity (although also one of specificity, as will be discussed). Their concurrent application often leads to the same result and has the potential to offer greater individual protections (Droege, 2008). Each can complement areas in which the other body of law is lacking. For example, the provisions for a fair trial in IHL are vague, but IHRL can provide guidance and interpret the rules in question. It is also helpful to rely on IHRL in situations of internal armed conflict, where the treaty rules of IHL are limited (ICRC, 2005a).
The concurrent application of IHL and IHRL also raises some challenges, however. This is particularly so where there may be a conflict in norms, for example concerning the right to life. What constitutes an ‘unlawful killing’ may be very different under IHL than under IHRL. IHL permits lawful killing of combatants and adopts principles of proportionality, which allows for permissible ‘collateral damage’, whereas IHRL has stricter requirements on the protection of life (Iguyovwe, 2008). In order to address such challenges, the ICJ articulated in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons the principle oflex specialis stating that:
whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant [ICCPR], can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself (para. 25).
The Court expanded on this position in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, stating that where matters fall under both IHL and IHRL:
the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law (para 106).
What is Lex Specialis? How is it applied?
The application of the principle of lex specialis is still highly debated. Nonetheless, some scholars have likened the principle to a conflict-solving rule. Where the adoption of two different approaches is possible and legitimate but may result in conflicting outcomes, it gives precedence to the approach/rule that is most adapted and tailored to the specific situation. In the case of IHL and IHRL, the principle means that under certain circumstances, the specific rules of human rights law are applied by reference to IHL standards. The closer the situation is to the battlefield, the more humanitarian law will take precedence, and vice versa. Relevant criteria could include the duration of combats, the type of weaponry used and the degree of armed resistance (Greenwood, 2010; Droege, 2008).
International refugee law
The 1951 Convention on the Status of Refugees provides the foundation for international refugee law. It defines a ‘refugee’ as someone who is externally displaced through a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ (Art 1). Although the Refugee Convention does not include an explicit reference to sex and/or gender, the importance of gender in shaping the experiences of refugees is increasingly recognised.
The absence of effective national protection results in the need for international protection. International refugee law applies to states that are party to the relevant treaties and to all states under customary law. Internally displaced persons, who remain within the borders of their own country, are subject to national law and applicable international law such as IHL and IHRL. IHL and IHRL are incorporated in binding regional instruments as applicable and as reflected in the Guiding Principles on Internal Displacement (1998). While not part of binding treaty law, the Guiding Principles establish standards for the protection of IDPs. It can be challenging, however, to encourage states to comply with non-binding frameworks. In recent years, there have been significant developments in elaborating binding legislative frameworks – including, for example, the codification of the African Union Convention for the protection and assistance of IDPs in Africa, and the Great Lakes Protocol on the Protection and Assistance to IDPs.
The interplay of IHL and international refugee law
Refugees caught up in armed conflict are protected under both IHL and international refugee law. Article 5 of the Refugee Convention allows for the concurrent application of the Convention and other instruments granting rights and benefits to refugees. IHL and refugee law can also apply successively. The existence of an armed conflict is not in itself sufficient criteria to qualify someone as a refugee under the Convention. Where a victim of armed conflict is forced to leave his or her country due to violations of IHL (or IHRL), however, such violations can form part of the refugee definition and become a key factor in triggering refugee protection (Jaquemet, 2001). This may be more likely where armed conflicts have an ethnic or religious dimension, as it could trigger the condition of fleeing because of fear of persecution (ICRC, 2005a). In situations where armed elements are engaging in severe violations of IHL, this could be sufficient to accept that all civilians belonging to or associated with the ‘enemy’ side will have a well-founded fear of persecution, without having to engage in individual determinations (Jaquemet, 2001).
Another area of overlap is exclusion. Individuals who have engaged in certain violations of IHL amounting to war crimes may be excluded from entitlement to protection as a refugee (ICRC, 2005a).
Prevention of displacement and protection of refugees under IHL
- Prohibition of forced displacement: Parties to a conflict are expressly prohibited from forcibly moving civilians, whether in cases of occupation (GCIV, Art 49) or non-international armed conflicts (APII, Art 17). There is an exemption under exceptional circumstances (where the security of the civilian population involved or imperative military reasons so demand). Violations of these provisions are war crimes under international criminal law (ICC Statute, Art 8).
- Protection from the effects of hostilities in order to prevent displacement: The prohibitions against targeting civilians and civilian property/objects, as well as duties to take precautions to spare the civilian population, are also aimed at preventing displacement (ICRC, 2005a).
- Protection during displacement: IHL provisions that seek to protect displaced and legally evacuated civilians include the need to ensure that any necessary evacuations are carried out under satisfactory conditions of hygiene, health, safety and nutrition; and that the displaced have appropriate accommodation and that families are not separated. Refugees also benefit from protections afforded to aliens in the territory of a party to a conflict under the GCIV (ICRC, 2005a).
Article 9 of the 1951 Convention allows for derogation from treaty provisions in times of war. Unlike international human rights law, the Convention does not provide for certain non-derogable rights. IHL can therefore be a particularly important safeguard in such situations.
Protection of refugees and displaced persons under IHRL
The core human right that applies to issues of displacement is the freedom of movement, specific in the ICCPR (Article 12). It has three elements: (i) freedom of movement within a country in which one is lawfully resident; (ii) freedom to leave any country; and (iii) the right to return to one’s country. Similarly to IHL, this human rights provision outlaws forced displacement other than on exceptional grounds (such as to protect national security, public order or public health). Other related rights and entitlements include the freedom to choose one’s residence, freedom from arbitrary interference in one’s home, and the right to housing.
Human rights law has been particularly important to the development of policies that deal with IDPs, who are not afforded protection under international refugee law. The Guiding Principles for Internally Displaced Persons bring together existing human rights and humanitarian law alongside the framework for refugee law.
International criminal law
The International Criminal Court (ICC), the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), and hybrid tribunals have jurisdiction over violations of rights committed within and outside armed conflict – in particular war crimes, genocide and crimes against humanity. Crimes against humanity involve systematic and widespread violations of human rights.
Under IHL, serious violations of common Article 3 of the Geneva Conventions and AP II (governing non-international armed conflict) did not incur individual criminal liability. However, the ICTY and the ICTR have established that their jurisdiction covers both international and non-international armed conflicts. Based on this practice, the Statute of the ICC explicitly extends individual accountability to war crimes committed in internal armed conflicts. This includes individual accountability for rape as a constituent offence of crimes against humanity.
In order to prosecute war crimes, the existence of an armed conflict must be established. The Appeals Chamber of the ICTY in the Tadic case specified an armed conflict to ‘exist whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (Prosecutor v. Tadic, 1995). With regard to the distinctions between international and non-international armed conflict, the ICTY has also found that certain norms of international armed conflict are applicable to non-international armed conflicts based on customary international law. This guide’s section on Compliance with and Enforcement of Humanitarian Law contains further discussion of international criminal law.