Published in July 2018.
This module is a resource for lecturers
Relationship between international humanitarian law and international human rights law
One final area to comment upon here is the relationship between IHL and international human rights law since this dichotomy permeates a number of other issues examined during this course, such as the right to life and deprivation of liberty during situations of armed conflict.
The starting premise is that in situations of armed conflict, IHL is the principal applicable legal regime, i.e. the lex specialis, governing the conduct of hostilities and the protection of persons in situations of armed conflict. This requires that a nexus exists between particular activities or treatment and any ongoing conflict. Where such a nexus cannot be established, normal peacetime criminal justice approaches apply. Although human rights law continues to apply in time of armed conflict, the modalities of this joint application of legal regimes remain unsettled. What is certain, however, is that these two bodies of law - IHL and human rights law - share basic and fundamental values. (Especially helpful in the drafting of this section was Melzer, 2016).
IHL already reflects fundamental, non-negotiable, minimum human rights standards. In contrast to international human rights law which permits derogation from some human rights during times of public emergency (see Module 7), including in situations of armed conflict where it continues to apply, IHL already represents the minimum standards which cannot be reduced further. That said, IHL and international human rights law still share "a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity" ( Abella v. Argentina, 1997, para. 183). Often both legal regimes will apply simultaneously, governing such issues as the right to a fair trial, humane treatment in detention, and the prohibition against torture. The protections afforded by international human rights law, however, generally afford broader and more extensive levels of protection (e.g., in relation to abusive or arbitrary treatment by State authorities) and remain relevant in situations of armed conflict.
A number of important conceptual differences exist between the two legal regimes. One is that international human rights law is linked to the jurisdiction of States which is normally its physical territory, though in some situations, where certain criteria are met, its obligations may extend extraterritorially into the physical territory of another State (ICJ, 2004, para. 109).
Another is that, unlike international human rights law, IHL does not offer any enforcement mechanism to persons whose basic rights have been violated, instead focussing on international criminal law approaches for prosecuting those persons who violate such rights, e.g. as war crimes. That said, the scope of IHL is broader than international human rights law in some respects. For example, IHL is not limited to protecting persons, but also extends to livestock, civilian objects, cultural property, the environment and so forth. Additionally, unlike international human rights law which is only binding on States, IHL is binding on all parties to an armed conflict, including non-State actors who currently pose some of the most significant terrorism related challenges in situations of armed conflict.
Right to life
On occasion, important conceptual and legal differences can lead to tensions between the two legal regimes. One example of especial relevance to counter-terrorism responses relates to the right to life. IHL permits those persons directly participating in hostilities, such as non-State armed actors, to be deprived of this right on grounds of military necessity, seeking to balance this against considerations of humanity. As a result, all of IHL's principles take into consideration the need to protect individuals from the atrocities of war, and as such, may be said to give expression to the right to life. For example, the principle of distinction, by providing that civilians and civilian objects cannot be directly targeted in time of armed conflict, protects civilians in armed conflict. Directly targeting civilians is prohibited, and scores of other norms similarly protect civilian life (and, to a limited extent, combatant life) in war. The extent to which human rights law should apply in war has been discussed heavily, without a clear picture emerging. The so-called 'kill or capture' debate stands out as emblematic of this debate. The question has arisen of whether, when possible, States should capture combatants instead of killing them, with different scholars taking different views on this issue.
In contrast, international human rights law aims to protect life, prohibiting any "arbitrary" and unnecessary deprivation of life irrespective of a person's status including under IHL. Where such tensions arise between two or more legal regimes, the issues are normally reconciled through the lex specialis principle where appropriate. This allows a specialist legal regime such as IHL to prevail over any conflicting, more general law ( lex generalis). Therefore, any issues arising regarding, for instance, the arbitrary deprivation of life during hostilities will be determined through the legal lens of IHL (ICJ, 1996, para. 25). Similarly, although the internment/detention of a civilian or a prisoner of war is technically contrary to the principle of liberty and security under international human rights law (see Module 10), it is permissible under the lex specialis of IHL (specifically the Geneva Conventions 1949 III and IV).
Children engaged in hostilities
One other significant related issue of concern to the international community the involvement of children in armed conflict. Recognzsing that children require special protection, including due to the harmful and widespread impact that armed conflict can have on children, the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict establishes a number of obligations for States parties, such as ensuring that children (i.e. persons under the age of 18) do not participate directly in hostilities (paras. 1 and 4).
Particular moral dilemmas and legal questions have arisen in the context of military counter-terrorism operations where children have been involved, especially since both IHL and international human rights law require special protection against harm for children. Understandably, there are many sensitivities regarding the targeting of child soldiers even where they are directly involved in hostilities, whether as combatants or civilians taking direct part in hostilities, and pose a very real threat. Provost has suggested that the legal position probably is that where military necessity requires it, and there is no viable alternative response, that as a measure of last resort it should be regarded as permissible to target such children. Any attack against children falling shorting of this higher, more restrictive standard compared with comparable adults, is likely to violate treaty and customary rules prohibiting superfluous injury and unnecessary suffering (Provost, 2016).
Mental harm versus physical harm
One other issue worth of mention relates to mental harm caused in the context of an armed conflict, whether by terrorist actors or by States counter-terrorism responses, e.g. the excessive (or at least frequent) use of drones over areas populated by civilians. This can cause great distress and high levels of mental anxiety, even harm, e.g. due to fear about the use of such drones by foreign militaries for purposes ranging from surveillance to targeted killings at any time. As of 2018, IHL does not provide for mental harm, only physical harm ( de lege lata). A key question, therefore, is whether IHL should provide for psychological harm including as part of its proportionality calculus ( de lege ferenda).