The relationship between
international humanitarian law
(IHL) and human rights law (
IHLR)
Cecilie Hellestveit
• A group of insurgents (Beta) control a valley in the
territory of State A, and there is an armed conflict
between State A and Beta. All insurgents are nationals
of State A. Following a night operation with ground
troops and air-assistance into insurgent territory in order
to free captives of Beta, State A kills four insurgents.
Two hostages and one civilian are also killed in the fire
figth that erupts. State A captures five insurgents during
the operation. The State decides to bring one captive to
trial for the murder of a prominent political figure in State
A, while the other four are keept in security detention.
The State keeps the four in detention without trial. An
internal commission of the military of State A determines
that two are members of Beta’s military wing. The other
two have some kind of support function in the Beta –
organization. THe State nevertheless decides to keep
them as captives in case a swap of prisoners with other
Questions
• 1) Are any of the acts of State A
goverened exclusively by IHL ?
• 2) Are any of the acts of State A
goverened exclusively by IHRL ?
• 3) Which acts are goverened by both
IHL and IHRL ?
• 4) Is the conduct of State A unlawful
under either regime ?
Two areas of international law:
• International
humanitarian law
(IHL):
• International
human rights law
(IHRL):
• Agreements between
states on how to
conduct war, and on
protection of enemy
civilians and
combattants
• Agreements between
states regulating the
relationship between
each state and the
indivuduals over
whom it has
jurisdiction
Point of departure
Civilians and
combatants
OUTSIDE
control
Persons under the
control of a (State)
party to the conflict
IHL
IHRL
SOME RELATIONS : only IHL ( no IHRL or IHL triumphs)
SOME RELATION : only IHRL ( no IHL or IHRL triumphs)
SOME RELATIONS: both , but IHL or IHRL triuphs
 triumph : according to ” BEST PROTECTION”
IHL  IHRL
simple
• Similar
complex
• Levels of interaction
– Few but fundamental
(objectives)
• Different
– many (means of protection)
IHRL : equal rights
IHL: distinction
• Equal terms , different
content : the need for a
dictionary …
« proportionality », « civilian »
« discrimination »
– Lex specialis : IHL as rules that
replace IHRL and / or influence
the interpretation of IHRL
– Lex generalis : IHRL as rules that
influence the content of IHL
– IHRL as rules that circumscribe
the application of IHL.
– Ius ad bellum-dimension: IHRL
as a limit on the resort to the use
of force
TREATIES
IHL
IHRL
UN Declarations (1948)
INTERNATIONAL BILL OF HR :
ICCPR
ICESCR
CAT
 CERDAW
 CERD
 CRDP
 CRC
 4 Geneva Conventions (1949)
 PROTECTION : Treatment of persons
in the hands of the ememy
 Additional Protocols to the
Geneva Conventions (1977)
 API : international : Means and
methods of warfare against persons
NOT in the hands of the enemy
 APII : non-international : Protection of
persons in the hands of the enemy
 Hague Regulations (1907):
 rules of occupation
REGIONAL CONVENTIONS: e.g:





ECHR
IACHR
AfCHR
ArCHR
CDHRI
(Europe)
(Americas)
(Africa)
(Arab w)
(Muslims w
 Hague Convention (1954)
 Cultural objects
 Arms Conventions
International Human Rights Law
Point of departure:
Restrictions on arbitrary abuse of power by the state
General treaties:
•International Covenant on Civil and Political Rights (1966)
•International Covenant on Economic, Social and Cultural
Rights (1966)
•European Convention on Human Rights and Fundamental
Freedoms (1950)
Special treaties:
•Convention on Torture
•Convention on Racial Discrimination
•Convention on Discrimination of Women
Regional treaties:
•European Convention of Human Rights
•African Charter on Human Rights and the Rights of Peoples
•Inter American Convention of Human Rights
The duty bearers and the right holders
International
humanitarian law
(IHL)
Duty-bearers
Rights-holders
- STATES
- STATES
- OAG
- OAG
- INDIVIDUALS
- INDIVIDUALS
International
humans rights law
(IHRL)
- INDIVIDUALS
(persons)
- STATES
-STATES
Remedies and monitoring mechanisms
under humanitarian law (IHL) and human rights law (HR)
International
humanitarian
law (IHL)
Duty-bearers
Rights-holders
Mechanisms
STATES
STATES
ICJ (& other treaty
mechanisms)
INDIVIDUALS
INDIVIDUALS
National courts
Nuremberg/Tokyo
ICTY/ICTR
ICC
INDIVIDUALS
International HR courts
& other monitoring
bodies
(STATES)
ICJ & HR Courts etc
STATES
International
humans rights
law (IHRL)
Examples of civil and political rights:
•Freedom of speech / the right of expression
•The right of assembly/organisation (freedom of association)
•Freedom of religion/belief
•Prohibition against torture and cruel and degrading punishment
•The right to liberty and physical integrity (restrictions on the use of detention)
•The rights of fair trial (Independent courts, presumption of innocence, etc..)
•Prohibition against retroactive laws or judgements without legal basis
Examples of economic, social and cultural rights:
•The right to education
•The right to health
•Right to form and join trade unions
•Right to reasonable working conditions
•Right to housing
•Freedom from discrimination
•Race/ethnicity/national or social origin etc
•Gender
•Political opinion
•Disabilities, age
Where do human rights apply?
• Each state must ensure its human rights
obligations
• Not all states have agreed to take on all
human rights obligations
• Human rights for individuals correspond
with human rights obligations of the
relevant state
• But: core human rights are customary law
Geographical application
• IHL: applicable wherever a State Party (or
other parties) to the conflict may be
operating – when the situation qualifies as
armed conflict
• Human Rights: applicable to persons
under the State’s territory and/or
jurisdiction - in all situations (as a point of
departure)
Scope of application of human
rights treaties:
• Art.1, ECHR: The High Contracting parties shall
secure to everyone within their jurisdiction the
rights and freedoms defined in Section 1 of this
Convention.
• Art. 2, ICCPR: Each State Party to the present
Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to
its jurisdiction the rights recognized in the
present Covenant…
Human Rights Committee:
General Comment No.31 (80) 2004
• 10. States Parties are required by article 2,
paragraph 1, to respect and to ensure the
Covenant rights to all persons who may be
within their territory and to all persons subject to
their jurisdiction. This means that a State party
must respect and ensure the rights laid down in
the Covenant to anyone within the power or
effective control of that State Party, even if not
situated within the territory of the State Party.
The European Court of Human
Rights (on “jurisdiction”):
• Art.1, ECHR: The High Contracting parties
shall secure to everyone within their
jurisdiction the rights and freedoms
defined in Section 1 of this Convention.
• No dispute: jurisdiction can imply
responsibility both inside and outside the
territory of a State party
Jurisdiction:
• The power of the State:
- internally (at the national level)
- externally (in relations with other states)
- Jurisdiction reflects state sovereignty and
equality of states - the basic principles of
international law
Jurisdiction:
Common understanding of jurisdiction:
• Legislative power (prescriptive
jurisdiction)
• Judicial power (court jurisdiction)
• Executive power (enforcement
jurisdiction)
ECHR: Autonomous interpretation:
jurisdiction is closely linked to a state’s
ability to secure (or violate) human rights
(including, to a certain extent, abroad)
Extraterritorial human rights
responsibility (jurisdiction) under
the ECHR
•
•
•
•
•
•
Loizidou v. Turkey (1996)
Bankovic (2001)
Ôchalan (2005)
Ilascu v. Moldova and Russia (2004)
Issa et al v. Turkey (2004)
Saramati (2007)
When do human rights apply?
• Point of departure: Always
• No qualification of situations (see f.ex.
Articles 1 of the ECHR and Article 2 of the
ICCPR)
• What can states do when the security (or
interests) of the state is threatened?
– Limitations possible for some of the rights
– Derogation in emergencies
Limitations: ECHR art. 8,9,10,11
• Art.8: Right to respect for privacy and
family life
• Art.9: Freedom of thought and religion
• Art.10: Freedom of expression
• Art.11: Freedom of assembly
Limitations must be:
• Prescribed by law
• Necessary in a democratic society
• In the interests of national security,
territorial integrity or public safety
• For the protection of public order, health or
morals
• For the protection of the rights and
freedoms of others
No limitations with regard to:
• Right to life (except those which are listed
in article 2 and 15)
• Prohibition of torture
• Prohibition of slavery and forced labour
• Right to liberty and security
• Right to a fair trial
• No punishment without law
Article 15 ECHR :– Derogation in time of emergency
1. In time of war or other public emergency threatening the life
of the nation any High Contracting Party may take measures derogating
from its obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent
with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made
under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall
keep the Secretary General of the Council of Europe fully informed of the
measures which it has taken and the reasons therefor. It shall also inform the
Secretary General of the Council of Europe when such
measures have ceased to operate and the provisions of the Convention
are again being fully executed.
Requirements for derogation
• Art.15 (1). In time of war or other public
emergency threatening the life of the
nation any High Contracting Party may
take measures derogating from its
obligations under this Convention to the
extent strictly required by the exigencies of
the situation, provided that such measures
are not inconsistent with its other
obligations under international law.
Non-derogable rights
Art.15 (2): No derogation from Article 2,
except in respect of deaths resulting from
lawful acts of war, ..shall be made under
this provision.
“LAWFUL ACTS OF WAR” =
Derogation does not prohibit deaths
resulting from lawful acts of war.
Non-derogable rights (cont.)
Art.15 (2) No derogation…or from Articles 3,
4 (paragraph 1) and 7 shall be made
under this provision.
- Art.3: Prohibition against torture and inhuman
and degrading treatment and punishment
- Art.4 (1): Prohibition against slavery
- Art. 7: Prohibition against retroactive or nonexistent legislation as basis for punishment
Article 4 ICCPR
1 . In time of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, the States Parties to
the present Covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures
are not inconsistent with their other obligations under international law
and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2),
11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of
derogation shall immediately inform the other States Parties to the
present Covenant, through the intermediary of the Secretary-General
of the United Nations, of the provisions from which it has derogated
and of the reasons by which it was actuated. A further communication
shall be made, through the same intermediary, on the date on which
it terminates such derogation.
More non-derogable rights under
Art.4 of ICCPR
• 2. No derogation from articles 6, 7, 8 (paragraphs I
and 2), 11, 15, 16 and 18 may be made under this
provision.
•
•
•
•
•
•
Art.6: Right to life
Art.7: Torture and inhuman and degrading treatment
Art.8: Slavery
Art.11: Debt prison
Art.15: Non-existent of retroactive legislation
Art.16: Right to be recognised as a person before the
law
• Art.18: The freedom of religion
Examples of situations which led to
derogation:
•
•
•
•
•
The military coup in Greece in 1967
The situation in Northern Ireland
The situation in parts of Turkey
The situation in Israel/occupied territories
The attack on the US 11 Sept. 2001
ECHR Article 2 (Right to life):
• Everyone’s right to life shall be protected by law.
No one shall be deprived of his life intentionally
save in the execution of a sentence of a court
following his conviction of a crime for which this
penalty is provided by law.
• ECHR Article 2 (continued):
• Deprivation of life shall not be regarded as
inflicted in contravention of this article when it
results from the use of force which is no more
than absolutely necessary:
• (a) in defence of any person from unlawful
violence;
• (b) in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;
• (c) in action lawfully taken for the purpose of
quelling of a riot or insurrection
 No limitations on the rights to life
 No derogations from the right to life (ICCPR)
• BUT : the right to life = protection against
arbitrary deprivation of life.
• « Arbitrary deprivation of life » = if an act
violates obligations under IHL ( ICJ Nuclear
Weapons)
 Observance of:
– Combatant status required for killing
– Principle of distinction
– Principle of proportionality
– No war crimes
– No grave breaches
De facto situations
Applicable IHL
1. International armed
conflict
The four Geneva
Non-derogable
conventions of 1949 (applicable)
& the first additional human rights
protocol of 1977
2. Non-international
The second
armed conflict
additional protocol
between the state and of 1977
organized group with
territorial control
Applicable HR law
Non-derogable
(applicable)
human rights
Examples
Tadic-case (ICTY)
Spain 1936-37
Colombia
Iraq 2006
Somalia
3. Non-international
Common Article 3 to Non-derogable
armed conflict
the four Geneva
(applicable)
between the state and conventions
human rights
groups or between
groups
Iraq 2005 and
2008
Somalia
(US : overseas
contingency
operations against
al-Qaida )
4.Disturbances
Riots/Unrest
Disasters
Others causes for
state of emergency
Non-derogable
(applicable)
human rights
UK/US post 9/11
France 2005
5. Peace
All International
(applicable)
human rights
Is there a gap between IHL and HRL?
• Is there a situation where only nonderogable rights are applicable - and
Common Article 3 is not?
IHL & IHRL : similarities
• ultimate objective : protection of the
human person
– IHRL : from the state
– IHL : from the warring parties
Protection of the human person
IHL : protection
1) Belligerents:
Combatants
DPH
2) Non-combatants:
Belligerents hors de
combat (Sick,
wounded, surrendered,
POWs and other
captives)
Civilians
IHRL : protection
• of all persons within the
jurisdiction of a State
(regardless of citizenship)
against abuse of power of
State authorities, or
failure by State
authorities to ensure
human rights
IHL & IHRL : similarities
• ultimate objective : protection of the
human person
– IHRL : from the state
– IHL : from the warring parties
• no reciprocity : not dependent on
reciprocal observation by other parties in
order to remain obligations and rights
IHL & IHRL : Limited role for reciprocity
• RECIPROCITY : if your counterpart violates his obligations,
you are free from complying
• 1) means of enforcement
• 2) restore balance
BUT IHL & IHRL :
• Two fathers make a vow never to beat their children. One
beats his daughter.« If you dont stop beating your daughter, I
will start to beat my daughter too ! »
• - the daughter is innocent
• - the daughter has no way to influence the other father
• - there is no deterrent effect for the father
•  NO RECIPROCITY TO ENFORCE RULES OF
PROTECTION OF THE HUMAN PERSON
• IHL AND IHRL == EXCEPTION
Differencies
IHL
• Old law
• Overall principles and
very detailed rules
• Very scarce institutions
for compliance
• Warring parties
• Also persons not under
control
• Differentiation between
persons
IHRL
• New law
• General rules
• Extensive international
institutions for compliance
• State as duty-bearer
• Only persons under
jurisdiction
• Equal rights of persons
Need to be bilingual….
IHL
• Civilian = enemy civilian
• Proportionality = narrow
concept
• BUT : e.g
• Humane treatment
IHRL
• Civilian = inncocent
bystander
• Proportionality = wide
concept
BASIC PRINCIPLES OF
INTERACTION
• The closer to the battlefield  application
of IHL.
• The further away from the battlefield, the
more assertive application of IHRL
• If person is under control of a State-actor (
i.e jurisdiction)  IHRL will apply
• If person is not under control of adversary
 IHL applies to the hostile interaction
• Difference rules of COH  protection
• Levels of interaction
– Lex specialis : IHL as rules that replace IHRL and / or influence
the interpretation of IHRL
EX. RIGHT TO LIFE
• REPLACE : Conduct of hostilites and the priviledge of combatancy
• INFLUENCE « arbitrary » deprivation of life depends on IHL
– Lex generalis : IHRL as rules that influence the content of IHL
• ‘Humane treatment’, ‘fair trial’ in IHL = informed by IHRL standards
– IHRL as rules that circumscribe the application of IHL.
• When IHRL applies to a relationship : HIGHER THRESHOLD FOR
APPLICABILITY OF (only) IHL
– Ius ad bellum-dimension: IHRL as a limit on the resort to the use
of force
• IHRL functions as limits on the right of States to use force against their own
citizens : the reasons for such use of force must be lawful under IHRL