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Summary Human Rights and IHL
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In this summary, we will examine the relationship between humanitarian law and human rights law, both of which are applicable in time of armed conflict. Humanitarian law and human rights law have very different origins. Humanitarian law has been part of international law from its beginning; human r...

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  • December 9, 2017
  • 8
  • 2016/2017
  • Summary

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Seminar 7


Seminar 7 – Human Rights and International Humanitarian Law



T. Meron, ‘The Humanization of Humanitarian Law’ 94 American Journal of International Law 239 (notes
average)

Limitations on Humanization and its Contradictions

 Significant differences remain between IHL, and HRL, despite trends to draw them closer together. IHL
tolerates the killing and wounding of innocent human beings not taking an actual part in the armed
conflict. It also permits certain deprivations of freedom without convictions in a court of law.
 Whereas IHL regulates the conduct of war, making sure that if someone hits below the belt, that it is
justified, HRL protects physical integrity and human dignity in all circumstances.
 To completely reconcile the 2 regimes, there would have to be an end to all armed conflict. But wars
are central to human life
 Whilst the jus ad bellum and the jus in bello ensure neutral and consistent application of IHL, it also
offers and easy way out to those satisfied with the present situation, as little thought has to be given
wars are just.
 Whilst humanizing the law can and should temper the treatment of civilians and POWs, and protect
civilian objects, it does little to discourage resort to war
 Some attempts to improve the situation – e.g. the principle of proportionality, although a crucial part
of the jus in bello, could possibly one day be expanded to the jus ad bellum.
 In 1996, ICJ gave it’s judicial opinion of the distinctions between proportionality in jus in bello and jus
ad bellum – in considering Military and Paramilitary activities in Nicaragua, the court stated ‘there is a
specific rule whereby self-defence would warrant only measures which are proportional to the armed
attack and necessary to respond to it, a rule well established in CIL.’
 ICJ Nuclear Weapons Advisory – ‘the proportionality principle may thus not in itself exclude the use of
nuclear weapons in self-defence in all circumstances. But at the same time, a use of force that is
proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements
of the law applicable in armed conflict which comprise in particular the principles and rules of
humanitarian law’.

An Overview of Developments

 Law of war has always contained rules based on chivalry, humanity, and religious values that were
designed to protect non-combatants, especially women, children, and old men, who were presumed
incapable of bearing arms and committing acts of hostility. Also has rules protecting combatants
 Has also increasingly focused on accountability and protection, afforded by international courts and
organisations such as the ICRC
 Calamitous events and atrocities have repeatedly driven the development of international
humanitarian law. The more offensive or painful the suffering, the greater the pressure for
accommodating human restraints. Eg. The battle of Solferino and Henry Dunant’s moving portrayal of
bloodshed there inspired the creation of the ICRC. WW2 has also been fundamental to establishing
individual criminal responsibility as an explicit part of the law
 HRL has had a great influence upon the development of CIHL. Was a response to a social consensus
that demanded efforts to humanize the behaviour of states and fighting groups in armed conflict.
Courts have frequently ignored battlefield practice in light of this, whereas before the followed the law
of war language and practice, and even stretched the traditional meanings. Public opinion, the media,
NGO’s and the ICRC have spurred these developments
 HRL has therefore influenced the interpretation and understandings of IHL. ICTY was a prime example
of this, through the way in which they defined practices such as torture
 IHL also greatly affected from international human rights instruments post WW2. Shown best through
the Martens clause of the Hague Conventions 1899 and 1907.
 Both HRL and IHL have, as a common denominator, the principle of humanity, despite the fact that
they have different origins, and different aims
 Common Article 3 of the GC arguably ensures the observance of certain fundamental human rights.
ICJ have described it as a reflection of ‘elementary considerations of humanity’ (Nicaragua)
 IHR bodies often have to fil the gap of bodies charged with the application of IHL, and so therefore
these organisations and given a human rights approach to IHL.
 The humanization of the laws of war has also informed developments relating to the use of certain
weapons – especially weapons that are incapable of distinction

From an Interstate to an Individual-Rights Perspective – Reciprocity and Reprisals

 Extent to which IHL has already departed from the purely interstate character of reliance on
reciprocity can be seen by revisiting the now-obsolete si omens clause and the question of belligerent

, Seminar 7


reprisals. The clause was found the early law of war treaties and provided that if one part to a conflict
was not party to the instrument, it would not apply to relations between all parties to the conflict
 Reversed in 1929 POW Convention and the 1929 Convention for the Amelioration of the Condition of
the Wounded and Sick in Armies in the Field. Art 82 of the former states that ‘in time of war if one of
the belligerents is not a part to the Convention, its provisions shall, nevertheless, remain binding as
between the belligerents who are parties thereto’.
 See also Common Article 1 (part of CIL) which States that the ‘high contracting parties undertake to
respect and ensure respect for the present convention in all circumstances’.
 Domain for legitimate reprisals has thus shrunk dramatically. Now only possible against armed forces,
since attacks against the military are lawful under the jus in bello of IHL.
 International law has however, failed to provide effective remedies against States the breach
principles such as that of proportionality. Therefore, in the eyes of countries such as the US, reprisals
are still necessary
 In a recent ICTY judgement, Presiding Judge Antonio Cassese suggests that as a means of inducing
compliance with international law, the prosecution and punishment of war crimes and CAH before
national and international courts offers a widely available and fairly efficacious alternative to reprisals.
(Prosecutor v Kupreskic)
 Argued though that for combatants this is a less effective deterrent than reprisals
 Prohibition on reprisals shows the obvious influence of human rights on IHL. Very idea if reflection of
the notion of individual responsibility, which is fundamental to IHRL.
 Principle of reciprocity is still prominent in the law of war, and has undergone a significant
transformation.

Individual Rights and Duties and the Inalienability of Rights

 Those IHL clearly gives rights to individuals and states, not clear if the protection of these belong to
the states or the individuals themselves
 Common Article 6/6/6/7 is very important because it clarifies that rights are granted to the protected
persons themselves and introduces into IHL an analogy to jus cogens, which is central to HRL.
 CA 6/6/6/7 suggests that treaties or agreements by which states themselves purport to restrict the
rights of protected persons under the Conventions will have no effect: ‘no special agreement shall
adversely affect the situation of the wounded and sick, of members of the medical personnel or of
chaplains, as defined by the present Convention, nor restrict the rights which it confers upon them’.
The CA also goes further to states that the protected persons themselves ‘may in no circumstances
renounce in part of in entirety the rights secured to them by the present Convention, and by the
special agreements referred to in the foregoing Article, if such there be’. – ICRC commentary states
that the prohibitions on renouncing are absolute
 Laws of war have always operated on the assumption that its rules bind not only states but also their
nationals. Increasingly, violations of the laws and customs of war, genocide, and other CAH are
recognised as justifying 3rd country prosecution in accordance with the principle of universal
jurisdiction. Under GC parties also have a duty to punish offenders
 Rome Statute of ICC an important tool in this process. Can bring offenders to justice, even those that
are part of informal groups

Repatriation of POW’s and Personal Autonomy

 Notion of rights belonging to individuals have proved particularly important to interpreting the
language of the third GC, which also governs the repatriation of POW’s. WW1 showed that peace could
come much later than the actual end in hostilities. 1929 POW convention as a result facilitate the
repatriation of POW’s as soon as possible after an armistice has been concluded.
 GC3 goes further. Article 118 – ‘POW shall be released and repatriated without delay after the
cessation of active hostilities’. Prisoner has clear right to be repatriated as soon as possible, and
detaining country has the obligation to return. But what about POW who does not wish to be
repatriated? Article 118 does not cover the wishes of prisoners themselves. Should POW therefore be
repatriated without their consent? Although GC4 Article 45 prevents repatriation when prisoner fears
persecution, nothing more than this provided for.
 Article 118 has been the flashpoint of several disagreements, such as in the Korean War, where States
have insisted that it imposes an obligation to repatriate, and the prisoners cannot waiver this right.
 General Assembly supported the UN Unified Commands Position on this, stating that ‘force shall not
be used against POW’s to prevent or effect their return to their homelands, and… they shall at all
times be treated humanely’. Although original position was voluntary repatriation therefore, a line of
no forced repatriation has since been taken.

Personal Applicability: Redefining ‘Protected Persons’

 Traditionally, laws of war protected persons on the side of the enemy, but it did not protect persons
from their own government and authorities. The human rights system directly addresses this issues.

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