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Ayush Singh, B.A. LL.B. (H)
1) What is International Humanitarian Law ?
International humanitarian law (IHL), also known as the laws of war and the law of armed conflict, is the legal framework applicable to situations of armed conflict and occupation. As a set of rules and principles it aims, for humanitarian reasons, to limit the effects of armed conflict.
Fundamental to IHL are the following two principles:
- The protection of persons who are not, or are no longer, participating in hostilities; and
- The right of parties to an armed conflict to choose methods and means of warfare is not unlimited
IHL is a part of public international law. Public international law is a broad set of treaties, customary law, principles and norms. The framework traditionally regulated relationships only between states. It has evolved, however, to cover a broad range of actors. IHL is notable in this regard, as it recognizes obligations for both states and non-state armed groups that are parties to an armed conflict.
IHL regulates activity during armed conflict and situations of occupation. It is distinct from, and applies irrespective of, the body of law that regulates the recourse to armed force. This framework is known as the jus ad bellum, and is enshrined in the UN Charter. It regulates the conditions under which force may be used, namely in self-defense and pursuant to UN Security Council authorization. Once there is an armed conflict IHL applies to all the parties, whether or not a party was legally justified in using force under jus ad bellum principles.
2) What is International Human Rights law ?
International human rights law is the body of international law intended to promote and protect human rights at the international and domestic levels. As a form of international law, international human rights law is primarily made up of treaty law – legally binding agreements between State parties – and customary international law – rules of law derived from the consistent practice of States.
While international treaties and customary law form the mainstay of international human rights law, other instruments, such as declarations, guidelines and principles adopted at the international level contribute to its understanding, implementation and development.
International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights.
Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.
Differences between International Humanitarian Law and International Human Rights Law –
International humanitarian law and international human rights law are two distinct but complementary bodies of law. They are both concerned with the protection of the life, health and dignity of individuals. IHL applies in armed conflict while human rights law applies at all times, in peace and in war.
International humanitarian law:
- Is a set of international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts.
- Is applicable in times of armed conflict, whether international or non-international.
- Binds all actors to an armed conflict – it lays down rules that are applicable to both state and non-state actors.
- Imposes obligations on individuals and also provides that persons may be held individually criminally responsible.
- Aims to protect persons who do not, or are no longer taking part in hostilities.
- Is supervised by the International Red Cross and Red Crescent Movement, which ensures protection and assistance to victims of war, encourages states to implement their IHL obligations and promotes and develops IHL.
International human rights law:
- Is a set of international rules, established by treaty or custom, on the basis of which individuals and groups can expect and/or claim certain behaviour or benefits from governments.
- Can be applied (in principle) at all times. Although, some IHRL treaties permit governments to derogate from certain rights in situations of public emergency threatening the life of the nation.
- Lays down rules binding governments in their relations with individuals. Does not impose specific duties on individuals but does provide for individual criminal responsibility for violations that may constitute international crimes.
- Has a supervisory system consisting of bodies established either by the United Nations Charter or by the main IHRL treaties.