International Humanitarian Law and International Human Rights Law

Summary

This script explores the distinctions and intersections between International Humanitarian Law (IHL) and International Human Rights Law (IHRL). IHL, with its origins in the mid-1800s, focuses on regulating armed conflicts to protect individuals, applying extraterritorially and remaining in force regardless of the conflict's nature. In contrast, IHRL, emerging post-WWII, governs government treatment of individuals, applies universally, and allows for some rights derogation during emergencies. Despite their differences, both laws coexist, with IHL taking precedence in conflicts due to its specificity, ensuring human dignity in all circumstances.

Takeaways

• 📜 International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are distinct, despite sharing the goal of protecting individuals.
• 🏛 IHL originated in the mid-1800s, with the first Geneva Convention in 1864, focusing on the protection of the sick and wounded in war.
• 📝 IHL is international law that applies during armed conflicts, regulating the conduct of parties involved in the conflict.
• 🌍 IHL applies extraterritorially, meaning its scope is based on the presence of armed conflict, irrespective of borders.
• ⛔ IHL cannot be suspended even in emergencies; it is designed to apply during the worst conditions, including war.
• 👥 IHL enforcement is typically against leaders of parties in conflict, with international courts like the International Criminal Court having jurisdiction.
• 🌱 IHRL developed post-World War II, with the Universal Declaration of Human Rights in 1948, focusing on basic rights applicable to all individuals globally.
• 🏙 IHRL governs how a government treats people under its control, including both citizens and non-citizens.
• 🕊 IHRL applies at all times, during both peace and armed conflict, in contrast to IHL which is limited to conflict periods.
• 📉 IHRL allows for some rights to be temporarily suspended during emergencies, but requires their restoration post-emergency.
• 🔄 The relationship between IHL and IHRL is one of co-existence and overlap, with IHL taking precedence in armed conflict due to its specificity (lex specialis).

Q & A

What is the main goal of both International Humanitarian Law (IHL) and International Human Rights Law (IHRL)?

The main goal of both IHL and IHRL is to protect individuals, with IHL focusing on armed conflicts and IHRL focusing on the treatment of people by their governments.

How did International Humanitarian Law (IHL) begin to develop?

Modern IHL began to develop in the mid-1800s during the Franco-Austrian War and the American Civil War, with the original Geneva Convention established in 1864.

What is the primary purpose of the Geneva Conventions?

The primary purpose of the Geneva Conventions is to establish international agreements that bind nations to follow certain rules during armed conflicts, even when they are at war with each other.

How does IHL apply to parties involved in an armed conflict?

IHL applies to parties involved in an armed conflict by regulating how they treat each other, binding them to follow specific rules and holding leaders responsible for ensuring compliance by their soldiers.

What is the difference between IHL and IHRL in terms of territorial application?

IHL applies extraterritorially, following the fighting wherever it occurs, whereas IHRL applies within the borders of a nation and is concerned with how a government treats people under its control.

Can IHL be suspended during emergencies such as war or natural disasters?

No, IHL cannot be suspended even in emergencies. Its purpose is to apply during armed conflict, and the rules were written with the understanding that it would be applied in emergency conditions.

How did International Human Rights Law (IHRL) develop differently from IHL?

IHRL developed in the mid-1900s, post-World War II, with the Universal Declaration of Human Rights in 1948, focusing on protecting fundamental rights of all people and regulating how governments treat their citizens.

What is the significance of the Universal Declaration of Human Rights?

The Universal Declaration of Human Rights was the first international statement addressing the fundamental rights of all people and was drafted in response to the brutal treatment of civilians during World War II.

How does IHRL differ from IHL in terms of when it applies?

IHRL applies at all times, both in peace and during armed conflict, while IHL only applies during times of armed conflict.

Can the rights protected by IHRL be suspended during emergencies?

Yes, IHRL recognizes that some rights may need to be temporarily suspended during emergencies to ensure fair treatment and protection of all, but these rights must be restored once the emergency has passed.

How do IHL and IHRL coexist and interact during an armed conflict?

IHL and IHRL coexist during an armed conflict, with IHL being the controlling law for issues it specifically addresses due to its specificity, while IHRL controls for issues not covered by IHL.

Outlines

00:00

📜 Origins and Principles of International Humanitarian Law (IHL)

This paragraph delves into the distinct origins and principles of International Humanitarian Law (IHL), also known as the law of war or armed conflict. It traces the development of IHL back to the mid-1800s, highlighting the Franco-Austrian War and the U.S. Civil War as catalysts for the establishment of rules to protect the sick and wounded in warfare. The paragraph emphasizes the international scope of IHL, its application during armed conflicts, and its extraterritorial nature. The Geneva Conventions are mentioned as the cornerstone of IHL, with the original convention of 1864 and the four updated conventions of 1949, along with their protocols, providing a detailed framework for conduct in war. The paragraph also clarifies that IHL is binding on nations during conflict, cannot be suspended even in emergencies, and is enforced internationally, often against leaders of parties involved in conflicts.

05:01

🌍 Development and Scope of International Human Rights Law (IHRL)

The second paragraph examines the evolution of International Human Rights Law (IHRL), which aims to protect individuals by regulating government treatment of people under its control. Unlike IHL, IHRL developed in the mid-1900s post-World War II, with the Universal Declaration of Human Rights marking a significant step towards international recognition of fundamental rights. The paragraph outlines the growth of regional human rights conventions and specific international treaties, while noting the lack of a single, worldwide binding agreement on human rights. It discusses the broad focus of IHRL on basic rights, its application at all times, including peace and conflict, and its recognition of some derogation of rights during emergencies. The enforcement of IHRL is described as aspirational, with no global courts but the existence of regional courts, and it acknowledges the ongoing development in the field, especially regarding the treatment of people outside a nation's borders.

10:03

🔄 Coexistence and Interaction Between IHL and IHRL

The final paragraph explores the coexistence and interaction between IHL and IHRL, addressing the common misconception that IHL replaces IHRL during armed conflicts. It clarifies that IHRL applies at all times, including during armed conflicts, while IHL is specific to times of conflict. The paragraph explains the principle of lex specialis, which dictates that the more specific law (IHL in this case) takes precedence when both bodies of law apply to the same situation. However, if IHL does not address an issue, IHRL continues to apply. The paragraph concludes by emphasizing the separate but linked nature of IHL and IHRL, each contributing to the protection of human dignity in different contexts, and mentions the American Red Cross as the producer of the content, inviting questions and further engagement on the topic.

Keywords

💡International Humanitarian Law (IHL)

International Humanitarian Law, also known as the law of war or the law of armed conflict, is a set of rules that seek to limit the effects of armed conflict. It is designed to protect individuals who are not taking part in the hostilities, such as civilians, and those who are no longer participating, such as wounded, sick or shipwrecked soldiers. The script discusses the development of IHL starting from the mid-1800s and its codification in the Geneva Conventions of 1864 and 1949, emphasizing its role in injecting humanity into warfare.

💡International Human Rights Law (IHRL)

International Human Rights Law is a body of law aimed at protecting the rights and fundamental freedoms of individuals within the jurisdiction of a state, regardless of whether there is an armed conflict. It developed in the mid-1900s, particularly after World War II, and includes the Universal Declaration of Human Rights as a foundational document. The script explains that IHRL applies at all times, in contrast to IHL, which is limited to times of armed conflict.

💡Geneva Conventions

The Geneva Conventions are a series of international treaties that provide the framework for IHL. They were first established in 1864 and expanded upon in 1949. The script mentions the 1949 Geneva Conventions and their additional protocols as the detailed and specific set of rules that govern the conduct of armed conflict, including the protection of the wounded, civilians, and prisoners of war.

💡Armed Conflict

An armed conflict is a situation of violence involving organized armed forces between states or protracted armed confrontations between government forces and organized armed groups within a state. The script distinguishes between international and non-international armed conflicts, noting that the type of conflict influences which aspects of IHL apply.

💡Extraterritorial Application

Extraterritorial application refers to the concept that certain laws apply beyond the borders of a state. In the context of IHL, as mentioned in the script, it means that once a party is involved in an armed conflict, the law applies to them wherever the fighting occurs, regardless of national borders.

💡Derogation

Derogation in the context of IHRL refers to the permissible reduction or suspension of certain rights during a state of emergency. The script explains that IHRL recognizes that some rights may need to be temporarily limited in times of emergency, such as natural disasters or armed conflicts, to protect public safety or order.

💡Lex Specialis

Lex specialis is a principle in international law that states that a more specific law prevails over a more general one when both are applicable to a particular situation. The script uses this term to explain that in armed conflict, IHL, being more specific, takes precedence over the more general provisions of IHRL.

💡Customary International Law

Customary international law consists of unwritten rules that have become binding through the consistent and general practice of states followed out of a sense of legal obligation. The script suggests that some aspects of IHRL, such as the Universal Declaration of Human Rights, have become customary international law due to their widespread acceptance over time.

💡International Criminal Court (ICC)

The International Criminal Court is a standing international court that has jurisdiction over individuals for international crimes, including genocide, crimes against humanity, war crimes, and the crime of aggression. The script discusses the role of the ICC in prosecuting individuals responsible for these serious offenses and its importance in maintaining international justice and accountability.

Highlights

International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are two distinct but related bodies of international law with a common goal of protecting individuals.

IHL, also known as the law of war or armed conflict, originated in the mid-1800s during the Franco-Austrian War and the American Civil War to protect the sick and wounded in war.

The original Geneva Convention in 1864 marked the first international agreement on IHL, signed by 12 European nations.

IHL is binding on nations during armed conflict, whether international or non-international, and applies extraterritorially.

IHL cannot be suspended even in emergencies; it is designed to apply during the worst conditions a nation might face.

IHL enforcement is international, often against leaders of parties in conflict, through international courts like the International Criminal Court.

IHRL developed post-World War II with the Universal Declaration of Human Rights, aiming to protect individuals from their own governments.

IHRL is broader, focusing on basic human rights such as the right to life and freedom from torture, with less specificity than IHL.

IHRL applies at all times, in peace and conflict, within a nation's borders, and its enforcement is largely aspirational.

IHRL allows for some rights to be temporarily suspended during emergencies, but not permanently.

IHL and IHRL can coexist; IHL does not replace IHRL during armed conflict, with IHL being more specific and controlling in such cases.

The concept of lex specialis dictates that when both IHL and IHRL apply, the more specific law (IHL in armed conflict) takes precedence.

IHL's detailed rules for armed conflict situations mean it often controls over the more general provisions of IHRL.

Despite their differences, both IHL and IHRL work towards ensuring human dignity in peace and armed conflict.

The development of IHL and IHRL reflects the evolution of international law in response to the atrocities of war and human rights abuses.

IHL and IHRL demonstrate the international community's commitment to inject humanity into war and protect fundamental rights in all circumstances.

Transcripts

because international humanitarian law

and international human rights law

sounds similar they are often confused

while they do share a common goal of

protecting individuals international

humanitarian law also known as ihl and

international human rights law

also called ihrl

are two separate bodies of international

law that have been developed implemented

and regulated differently

despite the uniqueness of their origins

ihl and ihrl can and do co-exist and in

fact they share many similar

characteristics however before we look

at how ihl and ihrl are similar it is

best to first look at how they are

different let's look first at ihl

modern ihl began to shape in the

mid-1800s during the franco-austrian war

in europe and in the civil war in the

united states

the devastating impact these wars had on

the common soldiers caused humanitarians

like andre dino and clara barton to

realize that even in war rules needed to

exist to protect the sick and the

wounded

similarly scholars such as francis

lieber in the united states were tasked

with writing down the rules of war that

to this point had remained largely based

on custom and tradition from the very

beginning of ihl it was developed and

intended to be international law that is

law that would apply in interactions

between nations the result was the

original geneva convention in 1864 the

first document to establish true

international humanitarian law

with 12 european nations signing the

convention it became the first

international agreement binding nations

to follow certain roles even in the

event these nations fought wars against

each other after several more geneva

conventions in 1949

the nations agreed to the four geneva

conventions that are in effect today

these four conventions along with their

three additional protocols comprise a

very detailed and specific set of roles

for ihl

ihl was originally called the law of war

and later the law of armed conflict

eventually the name of international

humanitarian law was settled on as best

reflecting the ideal behind the law to

inject humanity in war

let's look at the key points of ihl

before turning to ihrl

ihl exists to govern the relations

between parties to an armed conflict

while the purpose behind it is to

protect the individual it seeks to do so

by regulating how nations or parties to

the armed conflict treat each other when

fighting ihl regulates the parties to

the armed conflict while it remains the

responsibility of the parties to the

armed conflict to ensure their soldiers

comply with ihl

ihl's binding on nations that fight each

other on nations which fight an armed

group within their own borders and in

some situations binding on two or more

armed groups who are fighting within the

borders of a nation even if the

government forces of the nation are not

involved in the fighting ihl only

applies during times of armed conflict

as we'll see soon this is different from

ihrl which applies all the time

ihl also applies extra territorially

this means that once a party is involved

in an armed conflict ihl applies to them

wherever the fighting exists

it can be within the borders of a single

nation or spill over to wherever the

fighting goes

this is not to say that borders no

longer matter but ihl is far more

concerned about the actions of the

parties to the armed conflict rather

than their physical location so this

means that the application of ihl

follows the fighting not the borders

whether an armed conflict is of

international nature meaning between two

or more nations or of non-international

nature meaning between a government and

an armed group within the borders of a

single nation the type of conflict is

important as the determination of

international or non-international armed

conflict plays a significant role in

determining which specific aspects of

ihl applies

[Music]

there is no derogation from ihl this

means that even in an emergency such as

war or a natural disaster ihl still

applies and cannot be suspended in fact

the very purpose of ihl is for it to

apply during armed conflict so the rules

within ihl were written knowing that it

would be applied in some of the worst

emergency conditions a nation would face

ihl can be enforced internationally ihl

governs the actions of parties to a

conflict so it is most commonly enforced

against leaders of the parties these

leaders in turn have the responsibility

to ensure those soldiers who fight on

their behalf follow ihl in most

situations where violations of ihl are

prosecuted it is against senior

government officials or senior leaders

of armed groups

to reach these individuals standing

international courts such as the

international criminal court that has

jurisdiction over all nations that have

agreed to give the court jurisdiction

and special ad hoc courts such as the

international criminal tribunal for the

former yugoslavia are set up to

prosecute ihl violations arising from a

particular conflict now we are going to

discuss international human rights law

international human rights law developed

much differently human rights law seeks

to achieve the goal of protecting the

individual by regulating how a

government treats the people under its

control like ihl the ideas and

principles behind human rights have

existed for hundreds of years however it

wasn't until the mid-1900s and the

aftermath of world war ii that efforts

began to have these concepts apply as a

matter of international rather than

domestic law until this time how the

government of a particular nation

treated its own citizens was widely

considered no other nation's business

while this is still the general rule

today there is a growing belief that

there are certain fundamental rights

that should apply to everyone in the

world regardless of the country they

live in or the government that governs

them

one of the earliest efforts to bring

common baseline of human rights to the

world was the universal declaration of

human rights

a non-binding declaration adopted by the

united nations general assembly in 1948

while not a binding treaty or recognized

as law it was the first international

statement addressing fundamental rights

of all people similarly as to how the

first geneva convention was written to

address the suffering of soldiers in

time of war the universal declaration of

human rights was drafted in response to

the brutal treatment of civilians during

world war ii and recognized that

everyone should be entitled to certain

rights

since that time several regional

conventions on human rights have emerged

such as the european convention on human

rights arab charter and human rights

american convention on human rights and

african charter on human rights and

people's rights more recently ihrl has

been advanced through international

treaties such as the united nations

convention against torture

while these treaties have global

application they are focused on

protecting certain specific rights

rather than taking a comprehensive

approach to addressing all human rights

despite these efforts

so far there is no single binding

international agreement on human rights

that applies worldwide

because international human rights law

seeks to broaden recognition of the

certain rights to all people of the

world the goals of ihrl have been

focused on protecting the most basic of

human rights such as the right to life

prohibiting slavery torture or arbitrary

arrests as well as recognizing a right

of association and freedom of movement

in doing so ihrl has remained broadly

focused and apart from a few treaties

that focus on a specific right lacks the

detail and specificity found in ihl now

that we know how ihrl law has developed

let's take a look at how it compares to

ihl ihrl governs how a nation treats

people under its control this may be

citizens or non-citizens that are under

the control of the government of a

nation in fact the rights of citizens

are often well-defined while the rights

of people who are not citizens but still

under the control of the government are

usually less well-defined ihrl is only

binding on nations other groups such as

armed groups in an armed conflict are

not bound by ihrl however there is a

growing belief that if these groups

assume control over people in the same

way that a government does then they too

should be held responsible for following

ihrl ihrl applies at all times unlike

ihl which only applies during times of

armed conflict ihrl applies during peace

and armed conflict ihrl applies within

the borders of a nation there is near

universal agreement that some standard

of human rights should apply to the

people who live within the nation's

borders as it is clear to see how these

people are under the control of the

government of that nation

it is less clear how a nation must treat

people outside its borders ihrl is still

a relatively new body of law and this is

just one of the many areas in ihrl that

are still developing

ihrl recognizes that some derogation of

human rights will be required during

times of emergency while fair treatment

and protection of all is the goal of

ihrl the law recognizes that in time of

emergency a nation may not be able to

allow people to enjoy all of their

rights for example in a natural disaster

such as a hurricane the government may

force people to leave their homes and

not return until the storm has passed it

may even use force to detain people who

refuse to leave while under

non-emergency conditions such actions

would violate ihrl because of the nature

of emergency temporarily suspending

these rights makes sense in times of

armed conflict even more substantial

rights may be suspended however ihrl may

not be suspended permanently once the

emergency has passed nations are

required to ensure that individuals have

access to their human rights ihrl is

sometimes referred to as soft law

meaning that for the most part it has

not been written into a broad binding

international agreement and there are no

courts to enforce it on a global scale

some have argued that long-standing

documents such as the united nations

universal declaration of human rights

while aspirational and non-binding at

the time it was written have been

recognized by enough nations for enough

years to become customary international

law customary international law is

created when a concept or practice

becomes so widely accepted by the

nations of the world that it is

considered international law even though

it has not been explicitly agreed to in

a treaty even if some parts of ihrl are

considered customary international law

there are no courts within worldwide

jurisdiction to enforce it while there

are some regional courts such as the

european court of human rights such

courts do not have global international

jurisdiction and can only rule in cases

arising from the actions of nations who

are part of the specific regional

agreement the result is while ihrla's

law for many nations of the world its

enforcement remains largely aspirational

a question that frequently arises is can

ihl and ihrl be in effect at the same

time put another way

once an armed conflict starts does

international humanitarian law replace

international human rights law the

answer to this question is easy

no

ihl does not replace ihrl the details

are a bit more complicated ihrl applies

in both times of peace and armed

conflict ihl only applies during times

of armed conflict ihrl seeks to protect

basic rights ihl seems to take away some

of these rights ihrl is more general and

vaguely stated ihl is more specific and

detailed this last point is the key as

to which of the two applies under the

law when two bodies of law equally apply

at the same time the more specific law

controls this concept is known as lex

specialis when applied in armed conflict

if there is a difference between ihrl

and ihl

ihl is the controlling law because it is

the more specific law however if ihl

does not address an issue that ihrl does

then ihrl controls even an armed

conflict for example in certain security

situations in an armed conflict ihl

allows for internment of civilians based

on security reasons without criminal

charges this restriction directly

contradicts ihrl's right of freedom from

arbitrary detention however because the

provisions of ihl on the conditions of

internment are more specific than the

general provisions of ihrl granting

freedom from arbitrary detention ihl

controls and provided the requirements

of the provisions of ihl are met the

person can be interned despite sharing

similar sounding names and working

towards a common goal of protecting

individuals international human rights

law and international humanitarian law

remain separate but linked and

overlapping bodies of international law

each working in their own way towards

ensuring human dignity in both peace and

armed conflict

produced by the american red cross if

you have any questions please contact

ihlaw redcross.org