WHAT IS INTERNATIONAL HUMAN RIGHTS LAW? Human rights law is a set of international rules, established by treaty or custom, on the. The relationship between international humanitarian law. (IHL) and international human rights law (HR). Gro Nystuen, Oslo Law Faculty, Center for Human. The relationship between international humanitarian law and human rights has been made into an issue of scholastic debate.1 As it ultimately. † United States v.
This seems problematic, given that both conventions restrict the possibility to derogate to specific rights; most importantly, they do not allow states to derogate from the right to life where many of the conflicts between international humanitarian law and human rights arise in practice.
Unlike in its previous jurisprudence, however, the European Court argued that the British government had explicitly asked the Court to disapply or modify Convention rights in favour of international humanitarian law. Drawing on article 31 3 of the Vienna Convention, the Court further reasoned that it was state practice not to derogate from human rights instruments during international armed conflicts and that it may, moreover, take other rules of international law, such as international humanitarian law, into account in interpreting the Convention.
It proceeded to read article 5 of the European Convention in light of the Geneva Conventions, even though this ultimately entailed disapplying some of its procedural safeguards. In doing so, it did, however, interpret the Geneva requirements to provide for a 'competent body' to review the security detention of civilians articles 43 and 78 GC IVagain in light of article 5 of the European Convention, requiring that such a body, while not a court, at least 'provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness'.
This more recent approach of the European Court aligns it more closely with the Inter-American Commission, 23 and many legal scholars who have taken the position that the relationship between human rights and humanitarian law can only be decided with regard to the specific concrete case and context. The advantages and downsides of the different approaches have been explored elsewhere in the literature.
IHL and human rights law - ICRC
How have the African Commission and the African Court so far approached this question and what approach to international humanitarian law fits best with the African system? Before going into the details of existing case law, it is important to set out the basic textual parameters for the application of international humanitarian law under the African Charter.
To begin with, unlike the European and American Conventions, the African Charter contains no explicit derogation clause for situations of emergency or war. This absence of a derogation clause suggests that Charter rights apply both in times of peace and armed conflict 28 -and this is a point frequently made by the African Commission, as will be seen.
Importantly, articles 60 and 61 of the African Charter explicitly allow the African Commission to have regard to other sources of international law.
Indeed, they instruct it to 'draw inspiration from international law on human and peoples' rights' article 60 and to article 61 take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by member states of the Organisation of African Unity, African practices consistent with international norms on human and peoples' rights, customs generally accepted as law, general principles of law recognised by African states as well as legal precedents and doctrine.
Since international humanitarian law does not, at least in the traditional sense, represent 'international law on human [ This includes examining state reports and promoting human rights in Africa more broadly.
In the exercise of this function, the Commission has repeatedly called on state parties to observe the rules of humanitarian law. In its early decisions, which were generally very short, the Commission did not at all or only in passing refer to international humanitarian law, in spite of the existence of armed conflicts.
Typically, it merely insisted on the applicability of the African Charter even in times of 'war'. The first case in this regard represents the Commission's finding on grave and systemic human rights violations in Chad Chad Mass Violations case where it did not explicitly mention humanitarian law, but emphasised that 34 [t]he African Charter, unlike other human rights instruments, does not allow for state parties to derogate from their treaty obligations during emergency situations.
Thus, even a civil war in Chad cannot be used as an excuse by the state violating or permitting violations of rights in the African Charter. The African Commission reaffirmed this position in a later finding on Sudan, 35 at the time involved in a civil war, albeit in a less absolute key, emphasising that '[t]he restriction of human rights is not a solution to national difficulties: It is also important to note that both the Chad and the Sudan cases dealt with situations of civil war and, hence, non-international rather than international armed conflicts, where humanitarian law is least worked out as a matter of law and its relationship with human rights has long been unclear.
However, things changed in the African Commission's later jurisprudence. For the first and, to date, only time, the Commission explicitly addressed humanitarian law in some detail in its decision on the DRC conflict. The Commission's treatment of international humanitarian law here is both detailed and unclear and thus requires closer examination.
Already in the admissibility phase, the Commission draws on articles 60, 61 and 23 to argue that the activities of the armed forces of the respondent state parties are matters of humanitarian law and hence 'fall within the mandate of the [African] Commission'.
Viljoen has argued that it suggests a separation of humanitarian law from the Court's actual mandate human rightsagain affirming that the latter are applicable in cases of armed conflict, 43 but it may also denote that the Commission implicitly assumes a mandate for humanitarian law based on articles 60 and 61, invoked immediately afterwards. It hence leaves open the question of which of the two common approaches of human rights bodies to humanitarian law the African Commission is going to follow: In the following discussion on the merits, the African Commission continues oscillating between these two approaches.
It is, therefore, not entirely clear whether these acts constitute Charter violations merely on the basis of article 61 or more broadly of certain Charter rights read in light of the instructions of article The subsequent arguments on the merits then shift back and forth between a more independent international humanitarian law analysis on the basis of article 61 and an interpretive approach that reads African Charter rights in light of international humanitarian law.
The African Commission engages in comparative detail with individual provisions in the Geneva Conventions, finding multiple violations of humanitarian law, which are classified as African Charter violations merely on the basis of articles 60 and It also offends both the African Charter and the Convention on the Elimination of All Forms of Discrimination against Women; and on the basis of articles 60 and 61 of the African Charter find the respondent states in violation of the Charter.
This suggests that rather than reading African Charter rights merely in light of international humanitarian law, the African Commission treats international humanitarian law essentially as a part of the Charter, incorporated by article This impression is reinforced in the following analysis, where the Commission again analyses the same acts, but this time in light of both international humanitarian law and African Charter rights.
In this vein, for example, it qualifies the mass burial of victims of the conflicts as a violation both of the right to cultural development in article 22 of the African Charter and additionally as prohibited under article 34 of the Additional Protocol I and, hence, as a violation of the African Charter on the basis of articles 60 and However, even here its formulation is vague at best: By parity of reason, and bearing in mind articles 60 and 61 of the [African] Charter, the respondent states are in violation of the said Charter with regard to the just noted article 23 [of the African Charter].
Some paragraphs later, the destruction of the dam is additionally and, rather in passing, also qualified as a violation of the Charter's right to property. However, if the Commission really were taking only international humanitarian law into account in interpreting human rights, one would expect to see a different kind of legal analysis that starts out with the human rights provision in question and then draws on international humanitarian law to give content to this provision, in discussing its scope or limitations.
One would, for example, expect to see the Commission analyse whether the destruction of the dam violates the right to property or, for that matter, the right to national and international peace and security. The first question in this regard would presumably be whether the dam constituted public or private property and if the first, whether public property enjoys protection under the African Charter.
In this latter regard, the African Commission might then have drawn on article 23 of the Hague Convention with its qualified protection of the 'enemy's property' to argue for a broad reading that includes public property. In the next step, one would expect the Commission to engage with the question whether the right to property could have been limited as a matter of general interest to the community.
Again, the Commission might now have taken the limitations of the Hague Conventions for cases of military necessity into account. Alternatively, if the Commission wanted to base its argument on article 23, one would expect some more detailed analysis of what peace and security implies, drawing only in the second step on international humanitarian law. But none of this really matches the Commission's approach.
Instead, the international humanitarian law analysis of particular acts more often than not stands by itself. There is either no explanation of how and why the Commission incorporates international humanitarian law within a particular African Charter right where one would have expected a much more detailed legal analysis of the Charter right in question, or the Commission straightforwardly qualifies violations of international humanitarian law as Charter violations under articles 60 and The destruction of the hydroelectric dam, for example, is qualified three times as an African Charter violation: The direction changes again in a later decision on the Darfur conflict, where the African Commission once again takes a more interpretive approach.
Recognising that an 'armed conflict' 53 has taken place in Darfur, it incorporates in its reasoning explicit references to the humanitarian law principle of distinction, pointing out that '[t]he respondent state, while fighting the armed conflict, targeted the civilian population, instead of the combatants.
This in a way was a form of collective punishment, which is prohibited by international law.
- IHL and human rights
The most likely reply may be that Commission members either did not engage sufficiently with this question at all, or perhaps that their composition had changed between the two cases and that the new members simply took a different position on the issue. However, given the ambiguous approach to international humanitarian law even within individual decisions themselves, it seems more likely that the Commission has simply not yet developed a firm stance on the role of international humanitarian law in its jurisprudence.
One should, therefore, be wary of treating either the DRC or the Darfur decision as firmly established judicial doctrine. Since then, it has only decided a handful of cases, which partly reflects the fact that some states have not yet ratified the African Court Protocol and even fewer have accepted that individuals may directly access the Court. So far, only one decision of the African Court, a referral from the African Commission, addresses a situation of armed conflict, namely, its decision on provisional measures against Libya.
This may be due in part to the fact that the decision only deals with provisional measures and follows a minimalist French style of legal reasoning. It does, however, call on Libya to end actions contrary to both the African Charter and 'other international human rights instruments to which it is party'.
Of course, this raises the question whether the Geneva Conventions and additional protocols may be considered as 'other international human rights instruments' in this context, on which the Court is explicitly allowed to draw under article 3 of its Protocol.
The African Commission's assessment in the DRC decision suggests that the Geneva Conventions do not qualify as human rights treaties, but instead are other international treaties or at least general principles of international law.
On the other hand, one may argue for a more generous reading focusing on the purpose of the relevant treaty or at least particular clauses and, therefore, qualify at least some parts of humanitarian law as a 'human rights instrument', as Viljoen suggests. First of all, the Commission should develop a more coherent and consistent approach to international humanitarian law. While other international bodies also struggle with this task, a more consistent approach would be especially useful in the African context and in light of the Commission's collaborative role with the Peace and Security Council of the AU PSCwhich has recently taken on a broad peace-keeping mandate.
The same may be true for the African Court, particularly if its merger with the African Court of Justice proceeds, which seems to be unclear at the moment as states seem reluctant to proceed with ratification. Insofar as current decisions either ignore international humanitarian law entirely or apply it more or less directly through article 61, they are hard to square with the text of the Charter.
Ignoring international humanitarian law disregards the clear instruction in article 61 'shall' to take international law, such as humanitarian law, into consideration. This also presents an important counter-argument to those who are skeptical of any application of international humanitarian law by human rights bodies for reciprocity reasons, given that such bodies can only hold states, but not non-state actors, accountable.
To take international law into consideration 'as subsidiary measures to determine the principles of law' article 61 implies that an interpretive process is already ongoing.
According to article 61, humanitarian law can, therefore, play only a subsidiary role; it can help to fill gaps and give content to what are otherwise often vague Charter provisions and thus assist with their application in concrete cases.
Although the exact meaning and scope of article 31 3 c are contested, it is not usually understood to provide a means to apply other treaties directly or indeed to replace provisions of one treaty by the rules and principles of another treaty. The interpretive approach suggested by the language of the African Charter has in the European system created problems when the two bodies of law conflict, with the European Court not infrequently applying human rights in the context of armed conflict where international humanitarian law may be more appropriate.
In doing so, it risks overstretching the limits of what states can and are in practice willing to do in a situation of armed conflict.
What is the difference between IHL and human rights law? | International Committee of the Red Cross
Some commentators have, therefore, called on the European Court to apply the lex specialis rule in favour of international humanitarian law during armed conflicts, even if this may mean that the Court cannot exercise its jurisdiction in every case.
Such an approach may allow the Commission to recognise conflicts between the two bodies of law where they arise, rather than muddling through them only ultimately to favour African Charter rights, which may not fit the particular situation at hand. This indeed is a risk of the interpretive approach: By staying within the human rights framework, humanitarian law can only be taken into consideration as long as it does not clearly conflict with the language of Charter rights.
If it does, Charter rights must necessarily prevail, and it is then that human rights bodies risk adopting unrealistic perspectives on what states are allowed during armed conflict.
A direct application of international humanitarian law, in contrast, is less prone to subordinating international humanitarian law to human rights in cases of conflict, but it comes with other risks. A direct application of international humanitarian law is not only problematic with regard to the text of the African Charter and the African Commission's mandate, but its benefits are also perhaps more questionable in the African than in the European context.
Many of the problems under the European Convention have arisen because the European Convention sets out both narrow and detailed textual provisions that make an interpretation of Convention rights in light of international humanitarian law more difficult than elsewhere.
In particular, the right to life in article 2 and the right to liberty and security in article 5 of the European Convention are framed in very detailed terms that make it difficult to accommodate more lenient international humanitarian law standards with regard to the killing or detention of combatants, as the jurisprudence of the European Court demonstrates. In contrast, the African Charter sets out individual Charter rights in comparatively less detail and, in doing so, leaves considerable room to take humanitarian law standards into account, as is evident in the traditional fields where problems arise, namely, the rights to life and liberty.
The African Charter merely protects the right to life against arbitrary deprivations and the right to liberty against any deprivation of freedom 'except for reasons and conditions previously laid down by law', similarly ruling out 'arbitrary' arrest or detention. A potential hurdle to reading international humanitarian law into African Charter rights may, however, be article 7 of the Charter which entails a general right to have one's cause heard, comprising 'the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force' and article 4, 'the right to be tried within a reasonable time by an impartial court or tribunal'.
It, therefore, envisages a more classical law enforcement model and has been read by the Commission more broadly as a right to fair trial, 69 limiting, among others, the jurisdiction of military tribunals to 'offences of a pure military nature committed by military personnel'. The answer is that it does.
IHL and human rights law
For once, it seems already doubtful whether article 7 1 a is applicable to international armed conflicts, given that its wording 'competent national bodies' is clearly tailored to domestic rights violations. Even if we assume that it applies, the wording 'bodies' does in itself not necessarily require more than a status review board for prisoners of war or an 'administrative body' with regard to the security detention of civilians.
Insofar as the Commission has understood article 7 more broadly as the right to a fair trial, limiting, inter alia, the jurisdiction of military commissions which will typically be involved in status reviews for prisoners of war and security detention for civilians, it is important to emphasise that it has done so in the context of criminal convictions. It is, therefore, not in conflict with the Geneva Conventions as long as such bodies are not pronouncing criminal sentences.
Of course, this does not mean that military review boards should not be structured and staffed in such a way as to guarantee sufficient fairness and impartiality. The situation in non-international armed conflicts is different insofar as there is no explicit legal basis for detention in Additional Protocol II, though it is contested whether the rules for international armed conflicts may by analogy apply here.
As has been seen, article 7 leaves room for an analogous application of the Geneva rules on detention. In all other cases domestic law must conform to article 7 standards. If one selects the humanitarian law route, however, it seems appropriate in non-international armed conflicts to adopt a human rights-friendly reading of the relevant norms and add, along the lines of the European Court's recent Hassan decision, that there must also be 'sufficient guarantees of [ Of the three rights discussed here, only the right to liberty contains an explicit limitation requirement, namely, that deprivations of liberty must be in accordance with the conditions previously laid down by law.
What is the difference between IHL and human rights law?
This broad formulation may suggest that states have wide leverage to curtail the right to liberty, but the African Commission has refused to adopt a broad understanding of this clause as a general 'claw-back' clause.
Instead, it has read this formulation more narrowly, requiring in particular that international rather than domestic legal standards must be satisfied, referring to articles 60 and 61 of the Charter. Commentators have taken this as a broader reference to international practice, requiring in addition that domestic limitations meet proportionality standards in being necessary and proportionate to the interest protected. Providing that rights 'shall be exercised with due regard to the rights of others, collective security, morality and common interest', the Commission has read article 27 to stipulate a broader proportionality requirement.
Proportionality offers an assessment of rights limitations that is tied to the aim and purpose of the limitation and is, therefore, broadly suited to deal with situations of both armed conflict and peace. This is not to say that proportionality implies that anything goes - the robust jurisprudence of many constitutional courts employing proportionality shows that this would be in error 78 - but merely that grave circumstances, such as armed conflict, may justify rights infringements that go beyond what is acceptable in times of peace.
The two however, can be said to be legally synonymous as they strive to protect the lives, health and dignity of individuals, from different angles.
These rights which are inherent in all human beings without discrimination are often expressed and guaranteed by international law. Its scope is, therefore, limited to situations of armed conflict. For IHL, the existence of a situation amounting to an armed conflict is necessary to trigger its applicability. This equality between the belligerents also crucially distinguishes an armed conflict, to which international humanitarian law applies, from a crime, to which only criminal law and the rules of human rights law on law enforcement apply.
According to Droege,8 one of the major differences is that the substantive protection a person benefits under IHL depends on the category that person belongs to, while under the IHR benefits apply to all.
The protection of civilians is not the same as the protection of combatants and such distinction is important in application of IHL. The ICJ admitted that the protection of the ICCPR does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency but the rules embodied in IHL impose duties on all parties to a conflict and do not permit derogations because it was conceived for emergency situations.
The court further confirmed the complementarity of the two in Democratic Republic of the Congo v. Uganda12 where it concluded that both branches would have to be taken into consideration and in the case, international human rights instruments were found to be applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.
Human rights laws protect physical integrity and human dignity in all circumstances.