International Humanitarian Law (IHL) and International Human Rights Law (IHRL) both aim to protect individuals, but apply in different contexts. IHL governs conduct during armed conflict while IHRL applies during peacetime and is subject to derogation during emergencies. Where both apply, IHL is considered the lex specialis. While they have overlapping aims, IHL permits lethal force against combatants and regulates combat conduct, whereas IHRL prioritizes the right to life and prohibits arbitrary killing. Enforcement also differs, with IHL violations prosecuted criminally and IHRL addressing state responsibilities. International courts have found the regimes complementary and that IHL does not displace IHRL during conflict

1. International Humanitarian Law and International
Human Rights Law
These notes are excerpts and comments prepared mainly based on the
relevant literature circulated and other sources: These notes are meant for
facilitating discussion of this lecture and not meant to be or for any form of
publication or citation.

2. IHL, HR and the international legal context
Rules governing
the
legality of the
use of force
(Jus ad bellum)
Rules governing
the conduct of
hostilities (IHL)
(Jus in bello)
Rules governing
individual and
collective rights
(IHRL)
United Nations Charter
(Arts 2(4), 51 & 42)
Geneva Conventions,
Additional Protocols and
other instruments
UDHR, ICCPR, ICESCR and
other instruments
International law

3. International human rights law
• A separate body of international law from IHL
• Protects individuals and groups against
violations of their civil, political, economic,
social and cultural rights
• Primarily concerned with how a government
treats its own citizens
• Varying levels of acceptance of this framework
by States
• Often linked to political discussions

4. Core human rights treaties
Charter of the United Nations (1945)
Universal Declaration of Human Rights (1948)
International Covenant on Civil and Political Rights (1966)
International Covenant on Economic, Social and Cultural Rights (1966)
International Convention on the Elimination of All Forms of
Racial Discrimination (1965)
Convention on the Elimination of All Forms of Discrimination against
Women (1979)
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984)
Convention on the Rights of the Child (1989)

5. Core human rights treaties
International Convention on the protection of the Rights of All
Migrant Workers and Members of their Families (1990)
International Convention for the Protection of All Persons
from Enforced Disappearances (2006)
Convention on the Rights of Persons with Disabilities (2006)

6. Regional treaties
The main regional instruments are:
European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950)
American Declaration of the Rights and Duties of Man (1948) and
Convention on Human Rights (1969)
and
African Charter on Human and Peoples' Rights (1981).

7. Relationship between IHL and IHRL
• Similarities and differences

8. IHL and IHRL
• Both share a common purpose of protecting human dignity
• Both guarantee respect for life – physical and mental well being
• Both technically apply in armed conflict but they are designed to apply in different
kinds of situations:
– Human rights law is mainly designed to govern in peacetime
– IHL applies only in situations of armed conflict
• Protections under IHL can never be derogated from and apply equally to all parties
to the conflict (no derogation clauses)
• Human rights can be derogated from in certain circumstances (derogation clauses)
• IHL offers more protection in armed conflict than general non-derogable human
rights

9. States of emergency
International Covenant on Civil and Political Rights (ICCPR)
Article 4
• 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.

10. Non-derogable human rights
ICCPR:
- The right not to be arbitrarily deprived of life (Art.6)
- Prohibition against torture and other cruel, inhuman or
degrading treatment or punishment (Art.7)
- Prohibition of slavery and servitude (Art.8.1-2)
- Prohibition against detention for debt (Art.11)
- Prohibition against retroactive criminal laws (Art.15)
- Recognition of legal personality (Art.16)
- Freedom of thought, conscience and religion (Art.18)

11. History and status of the legal regimes
IHL:
• This body of rules has ancient origins;
• Armed conflicts are regulated by treaty provisions(with
a variation between IAC and NIAC);
• The recognition that there is a significant body of
customary law (on both IAC and NIAC);
• The willingness of States to extend the applicability of
IHL treaties, apart from provisions dealing with the
status of the fighters, to non-international conflicts;
and
• Until recently, the relative lack of enforcement
machinery, other than through domestic criminal law.

12. History and status of the legal regimes
Human rights law
• Norms of human rights law started at the
domestic level.
• Most important step in the development of
international human rights law occurred with the
inclusion of human rights in the Charter of the
United Nations and the adoption of the Universal
Declaration of Human Rights.
• The period since 1945 has seen the elaboration
of a variety of human rights treaties at the
regional and international levels.

13. History and status of the legal regimes
Human rights law
The striking features of human rights law as compared to IHL include:
• -Its relatively new, at the international level;
• -The development of mechanisms for monitoring and/or enforcing
the norms, alongside the development of substantive norms; and
• -The development of mechanisms with jurisdiction over all States
Members of the United Nations and not just over States that ratify
treaties.

14. Nature of the legal regimes
Violating IHL is by definition violating human
rights, while ensuring respect for IHL does not
necessarily ensure respect for all human
rights.
Full respect for all human rights in the final
analysis should lead to end the need to resort
to IHL protection in the first place.

15. Nature of the legal regimes
• 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. 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.

16. Nature of the legal regimes
• The conduct of hostilities paradigm, namely the
rules and principles regulating the employment
of means and methods of warfare in armed
conflict, belongs exclusively to IHL.
• The law enforcement paradigm may be described
as rules mainly derived from IHRL, and more
specifically from the prohibition of arbitrary
deprivation of life which regulates the use of
force by State authorities to maintain or restore
public security, law and order.

17. Nature of the legal regimes
• There are important differences between the conduct of hostilities and law enforcement
paradigms.
• Principles of necessity, proportionality and precautions exist in both, but have distinct meanings
and operate differently.
• While the conduct of hostilities paradigm allows lethal force to be directed against lawful targets as
a first resort, the use of lethal force in law enforcement operations may be employed only as a last
resort, subject to strict or absolute necessity.
• Persons posing a threat must be captured rather than killed, unless it is necessary to protect
persons against the imminent threat of death or serious injury or to prevent the perpetration of a
particularly serious crime involving grave threat to life, and this objective cannot be addressed
through means less harmful than the use of lethal force.
• Furthermore, in law enforcement, the proportionality principle requires a balancing of the risks
posed by an individual with the potential harm to him/herself, as well as to bystanders.
• For its part, the IHL principle of proportionality balances the direct and concrete military advantage
anticipated from an attack against a military objective with the expected incidental harm to
protected persons and objects (i.e. bystanders only).
• The determination of the rules applicable in a particular situation is therefore crucial.

18. Nature of the legal regimes
• The ultimate aim of the two legal regimes is broadly similar.
• However, they endeavor to achieve that object in different
ways.
• It would probably not be possible to merge the two bodies
of rules; nor would it be desirable, on account of the loss of
the advantages of legal regimes specifically designed for
their particular purposes.
• Though both regimes seek to avoid unnecessary deaths,
injuries and destruction, the starting point of IHL is the
soldier’s right to kill. The starting point of human rights law
is the prohibition of arbitrary killing and the obligation to
protect the right to life.

19. Nature of the legal regimes
• Human rights law is fundamentally civil (remedial), as opposed to
criminal, in character. It consists of obligations of States, to which
effect should be given in the constitution, domestic laws,
regulations, practices and policies. The focus is on the relationship
between the victim and the State, not the perpetrator.
• At the inter-State level, IHL can be enforced as civil (State
responsibility) international law obligations, for example before the
International Court of Justice. The provisions of the treaties
themselves and the content and nature of the substantive norms
make it very clear that enforcement is principally intended to be by
means of domestic criminal law, the domestic criminal law of third
States and international criminal law. The focus is on the violation
and the perpetrator, not the victim.

20. IHL and human rights law
HUMAN
RIGHTS
• Freedom of Expression
•Freedom of Assembly
•Right to Marry
COMPLEMENTARY
PROVISIONS
•Right to Life
•Prohibition against Torture
• Prohibition against Ill-
treatment
• Fair Trial
IHL
• Protection of
wounded, sick and
shipwrecked
•Protection of POWs
and civilian internees
•Conduct of Hostilities

21. Enforcement of IHL and IHRL
• Human rights:
– Injured party institutes legal proceedings – against
government officials & agencies
– Reports of international committees
• IHL:
– Enforced by domestic courts or an international
tribunal/court by prosecution (as War Crimes)
– All individuals (government officials and/or private
citizens) may be held responsible for violations
– ICC

22. IHL and IHRL relationship
lex Specialis (special law)
lex generalis (general law)
-lex specialis derogat legi generali.

23. lex Specialis and lex generalis
One of the techniques of analysis of normative
conflicts focuses on the generality vs. the
particularity of the conflicting norms.
In this regard, it is possible to distinguish between
three types of conflict, namely:
• (a) Conflicts between general law and a
particular, unorthodox interpretation of general
law;
• (b) Conflicts between general law and a particular
rule that claims to exist as an exception to it; and
• (c) Conflicts between two types of special law.

24. (a) Fragmentation through conflicting
interpretations of general law
In the Tadic case in 1999, the Appeals Chamber of the International Criminal
Tribunal of the former Yugoslavia (ICTY) considered the responsibility of
Serbia-Montenegro over the acts of Bosnian Serb militia in the conflict in the
former Yugoslavia. For this purpose it examined the jurisprudence of the
International Court of Justice in the Nicaragua case of 1986. In that case, the
United States had not been held responsible for the acts of the Nicaraguan
contras merely on account of organizing, financing, training and equipping
them. Such involvement failed to meet the test of “effective control”.
The ICTY concluded that “effective control” set too high a threshold for
holding an outside power legally accountable for domestic unrest. It was
sufficient that the power have “a role in organizing, coordinating, or planning
the military actions of the military group”, that is to say that it exercised
“overall control” over them for the conflict to be an “international armed
conflict”.
The contrast between Nicaragua and Tadic is an example of a normative
conflict between an earlier and a later interpretation of a rule of general
international law.

25. (b) Fragmentation through the emergence of
special law as exception to the general law
• In the 1988 Belilos case the European Court of
Human Rights viewed a declaration made by
Switzerland in its instrument of ratification as
in fact a reservation, struck it down as
incompatible with the object and purpose of
the Convention, and held Switzerland bound
by the Convention “irrespective of the validity
of the declaration”.

26. (c) Fragmentation as differentiation between
types of special law
• In the 1998 Beef Hormones case, the Appellate Body of
the World Trade Organization (WTO) considered the
status of the so-called “precautionary principle” under
the WTO covered treaties, especially the Agreement on
Sanitary and Phytosanitary Substances (SPS
Agreement). It concluded that whatever the status of
that principle “under international environmental law”,
it had not become binding for the WTO. This approach
suggests that “environmental law” and “trade law”
might be governed by different principles. Which rule
to apply would then depend on how a case would be
qualified in this regard.

27. IHL and IHRL
Possibility of gaps regarding the protection of individuals
in four circumstances. This is considered also as the grey
area between IHRL and IHL.
1)Where the threshold of applicability of IHL is not
reached;
2) Where the State in question is not a party to the
relevant treaty or instrument;
3) Where derogation from the specified standards is
invoked; and
4) Where the actor is not a government, but some other
group (non-State actors –organized armed groups)

28. IHL and IHRL
Three broad views on the relationship:
1. They are two mutually exclusive branches of
international law;
2. IHL is part of IHRL;
3. Complementarity

29. ICJ
• In the Legality of the Threat or Use of Nuclear Weapons
case, the ICJ discussed the relationship between the
International Covenant on Civil and Political Rights and the
laws applicable in armed conflict. Article 6 (1) of the
Covenant established the right not arbitrarily to be
deprived of one’s life. This right, the Court pointed out,
applies also in hostilities. However:
“The test of what is an arbitrary deprivation of life, however,
then falls to be determined by the applicable lex specialis,
namely, the law applicable in armed conflict which is designed
to regulate the conduct of hostilities”.

30. ICJ
• “As regards the relationship between
international humanitarian law and human
rights law, there are thus three possible
situations: some rights may be exclusively
matters of international humanitarian law;
others may be exclusively matters of human
rights law; yet others may be matters of both
these branches of international law.”
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion (July
2004), para. 106.

31. International Criminal Tribunal for the former Yugoslavia
“Because of the paucity of precedent in the field of
international humanitarian law, the Tribunal has, on many
occasions, had recourse to instruments and practices
developed in the field of human rights law. Because of
their resemblance, in terms of goals, values and
terminology, such recourse is generally a welcome and
needed assistance to determine the content of customary
international law in the field of humanitarian law. With
regard to certain of its aspects, international
humanitarian law can be said to have fused with human
rights law.”
Prosecutor v. Kunarac, Judgment of 22 February 2001, para. 467.

32. Inter-American Commission on Human Rights
• “First, while international humanitarian law pertains
primarily in times of war and the international law of
human rights applies most fully in times of peace, the
potential application of one does not necessarily
exclude or displace the other. There is an integral
linkage between the law of human rights and
humanitarian law because they share a "common
nucleus of non-derogable rights and a common
purpose of protecting human life and dignity," and
there may be a substantial overlap in the application of
these bodies of law.
Coard et al.v.United States, Case No. 10.951,29 September 1999, para. 39.

33. IHL and IHRL relationship
In the recent past International Court of Justice (ICJ) made three pronouncements on
the relationship between the two bodies of rules from which three interrelated
propositions emerge.
• Human rights law remains applicable even during armed conflict.
• It is applicable in situations of conflict, subject only to derogation.
• When both IHL and human rights law are applicable, IHL is the lex specialis.
• Legality or Threat of Use of Nuclear Weapons, Advisory Opinion, 8 July 1996,
• The Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 9 July 2004,
• Case concerning armed activity on the territory of the Congo (Democratic Republic
of the Congo v. Uganda), Judgment of 19 December 2005

34. IHL and IHRL relationship
-Non-international armed conflicts
-status of combatants
-detention