The Laws of War _ Human Rights

In this first lesson looking at international humanitarian law, the substance of international humanitarian law, I want to spend some time thinking about the interaction and relationship that IHL has with a number of other legal regimes. Specifically we're going to do this across two different legal regimes. The first of these legal regimes is of course international human rights law, as is the topic of this lesson. The next we'll be looking at the interactions between IHL and international criminal law. The purpose of this is to basically place our understanding of the substantive rules of IHL into the broader corpus of public international law to see where it fits and to see exactly where its areas of jurisdiction are defined, the scope of application and the interrelation with other legal regimes. And so that's what we'll do in this lesson. We're going to explore the relationship between international human rights law and international humanitarian law. We'll explore the points of interconnection, the points of departure and some of the issues that might give rise to certain tensions between these two legal regimes because there are definitely circumstances in which there are tensions between these regimes. I won't identify every single tension that exists of course that will come in the future with when we look at some more advanced topics but for now I'll give you an idea and an illustration of why there may be tensions and how those tensions manifest themselves in the law. From the very outset you could argue that both international humanitarian law and international human rights law have a shared core aim. If you were to define both of these legal regimes broadly you would argue that the core aim in terms of their abstract fundamentalities are the protection of human life, the protection of human dignity and the protection of the fundamental rights of persons. Technically we can understand why this is some of the definitions that we might apply to international human rights law. Human rights law is fundamentally about the protection of certain human rights including the right to life, the right to dignity and some of the other fundamental rights of persons. But if you think about IHL as well this also is the fundamental principles of how we understand what IHL does. It's protecting human rights, protecting human life sorry, human dignity and fundamental rights. The difference is that IHL and human rights law approach these different aims from different angles. So from the perspective of IHL this regulates how wars are conducted in a way to try and protect persons who are either not or are no longer participating in those hostilities. That is one of the core features and the core aims of international humanitarian law to protect civilians, to protect wounded soldiers, to protect prisoners of war. The focus then of IHL is the limiting effect of arms conflict, recognising that armed conflicts are often inevitable but that their impact in terms of the damage that can be done should be limited insofar as humanly possible. That you should try and instil as much as you possibly can a certain degree of humanity and humanitarianism within the conduct of hostilities. So that involves not only protecting those who are not involved in armed conflict but also limiting the amount of pain and suffering that is caused to people who are in armed conflict. This includes the prohibition of certain weapons in IHL for example things like exploding bullets and gas and on some interpretations the prohibition of things like nuclear weapons. These are all different types of weapons that cause an extensive amount of and a superfluous amount of suffering and so therefore is protected or at least prohibited in IHL. There is another point that needs to be noted that IHL does not apply to circumstances where there are no armed conflicts so there is a specific type of scope of application associated with IHL however international human rights law tends to have a bit more have a broader application in both terms of their content and in terms of the subject matter. So for example international human rights law also protects civil, political, economic, social and cultural rights and tends to do so of all individuals at all times and so there is an interaction and an overlapping between IHL and human rights in the sense that human rights law is going to be protecting or at least going to be applicable during both times of peace when IHL does not apply but also during times of war when IHL does also apply. And so the underlying underlying shared objective means that the two bodies of law can be complementary despite the fact that there are in some circumstances differences with regards to their context and to their mechanisms. In terms of the application then of course this is where we see some of the major differences. So for example IHL applies only during an armed conflict whether that armed conflict is an international armed conflict or a non-international armed conflict is a question for a future video that we will look at in a future lecture. But once active hostilities have begun whether or not it is under the basis of an IAC or a NIAC IHL governs the conduct of the parties to that conflict. By contrast international human rights law will apply at all times in peacetime during emergencies and during armed conflicts. States will remain bound to respect human rights even during warfare. This means that in situations of armed conflict both regimes will technically apply simultaneously. We'll get to the the lex specialis rule in a second but fundamentally these regimes are activated. You don't have a situation unlike IHL where it is either turned on or turned off essentially depending on whether or not we are in or not in an armed conflict but international human rights law it applies continuously throughout. Now there are some human rights treaties that allow states to derogate. That means to temporarily suspend certain rights in cases of emergencies. So for example the curtailing of freedom of movement during unrest if you were as a state in some kind of riotous unrest situation you might impose a curfew on on people which would restrict their ability to move from one place to another after a certain time. That might be seen as a human right but it can be derogated from in certain situations. However there are other human rights that exist that are non-derogable i.e they cannot be derogated from. They have to always be respected. You cannot for example temporarily suspend the freedom from torture degrading or inhuman treatment or punishment for instance or against racial discrimination or derogate from the right to life for instance. By contrast IHL cannot be suspended even during an armed conflict so if it if there is an armed conflict that is that is taking place there is no opportunity for the state's parties to derogate from the principles of IHL. There are very limited exceptions to this rule under the Fourth Geneva Convention but we will skip to that in a future lesson. For now for the broadest context of IHL as a body of law it cannot be suspended during an armed conflict. The only time IHL no longer applies is when an armed conflict has ended. In terms of the substance of the law then there is significant and substantive overlap between both of the regimes. So for example both prohibit torture and cruel treatment for example and discrimination to protect basic procedural rights. These do operate a little bit differently in IHL but they both apply with respect to the law of war versus human rights law. The right to life can also be seen as a protection within both humanitarian law and international human rights law but I've put a little asterisk there because of course it's a little bit more complicated and it applies in a different way to international humanitarian law versus international human rights law. There are also unique rules with respect to the conduct of hostilities. So for example in IHL the principle of proportionality and precautions in attacks and distinction these are all examples of rules that don't apply to human rights law or aren't applicable in human rights law because of the fact that they apply specifically to combat situations. Also the status of combatants in armed conflict for instance. By contrast and in a similar kind of vein there are rules of international human rights law that do not seem to sit within the broader confines of IHL. So for example freedom of the press or right to vote or freedom of assembly these don't exist necessarily within IHL. I guess you could make a point about the protection and the special protection of journalists in IHL with respect to freedom of the press but again it's a different type of right with respect to IHL versus human rights law. And what these differences do is they illustrate that while objectives can intersect the broad objectives of protecting human life, fundamental dignity and basic rights, the legal content and the immediate protections will differ according to the context of these two legal regimes. The fact that they are distinct regimes that apply in distinct circumstances is important to remember. And so when we think about a situation where both IHL and international human rights law are applicable a question that you might be asking is well what about a circumstance in which there is a conflict between IHL and human rights law? Let's say for example the universal protection of the right to life for instance. This is found in a variety of different provisions. It's found in the twin covenants, it's found in the European Convention on Human Rights, the Universal Declaration of course, but of course in IHL you have the ability to target and to kill people. Essentially if that person is a combatant, if that person has not shown to have surrendered, if that person has not shown any kind of indication that they are incapacitated in any kind of way, they are actively engaging in hostilities, then you have the ability to in a warfare situation to kill that person, to violate theoretically their right to life. Well of course IHL and the entire conduct of war as in general would not be useful if there was a prohibition on the right to life in old times within an armed conflict because then it meant that you wouldn't be able to kill people which is basically the fundamental characteristics of war if you were to quote Voltaire for instance. And so in this context we would rely on the lex specialis rule. The lex specialis rule basically tells us that in international law where there is an overlapping of legal jurisdiction and legal regulation and there is a in some cases a contradiction of these two rules, the more specific law the lex specialis will take precedent over the application. And so during an armed conflict the lex specialis is IHL rather than international human rights law. International human rights law is more general, international humanitarian law is specific to armed conflict. So the rules specifically relating to armed conflict would be applicable over the rule that does not, that is more general. Now most academic and state consensus seems to point to the idea that international human rights law does apply even during armed conflicts even if international humanitarian law is more specific since IHRL might still fill in gaps where IHL does not provide specific protection. One of the best examples of this and quite a difficult illustration is with respect to human rights during periods of belligerent occupation, long-term belligerent occupation. We'll get to the nature of belligerent occupation in a future lesson but generally speaking the interplay and the sort of relationship between the two seems to be something of a gap filler with respect to human rights law because overall the lex specialis is of course international humanitarian law.