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What is the difference between humanitarian law and human rights law?

01-01-2004

Extract from ICRC publication "International humanitarian law: answers to your questions"

 

International humanitarian law and international human rights law (hereafter referred to as human rights) are complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle.

Humanitarian law applies in situations of armed conflict (see Q7), whereas human rights, or at least some of them, protect the individual at all times, in war and peace alike. However, some human rights treaties permit governments to derogate from certain rights in situations of public emergency. No derogations are permitted under IHL because it was

conceived for emergency situations, namely armed conflict.

Humanitarian law aims to protect people who do not or are no longer taking part in hostilities. The rules embodied in IHL impose duties on all parties to a conflict. Human rights, being tailored primarily for peacetime, apply to everyone. Their principal goal is to protect individuals from arbitrary behaviour by their own governments. Human rights law does not deal with the conduct of hostilities.

The duty to implement IHL and human rights lies first and foremost with States. Humanitarian law obliges States to take practical and legal measures, such as enacting penal legislation and disseminating IHL. Similarly, States are bound by human rights law to accord national law with international obligations. IHL provides for several specific mechanisms that help its implementation. Notably, States are required to ensure respect also by other States. Provision is also made for an enquiry procedure, a Protecting Power mechanism, and the International Fact-Finding Commission. In addition, the ICRC is given a key role in ensuring respect for the humanitarian rules.

Human rights implementing mechanisms are complex and, contrary to IHL, include regional systems. Supervisory bodies, such as the UN Commission on Human Rights, are either based on the UN Charter or provided for in specific treaties (for example the Human Rights Committee, which is rooted in the International Covenant on Civil and Political Rights of 1966). The Human Rights Commission and its Subcommissions have developed a mechanism of special rapporteurs and working groups, whose task is to monitor and report on human rights situations either by country or by topic. Six of the main human rights treaties also provide for the establishment of committees (e.g. the Human Rights Committee) of independent experts charged with monitoring their implementation. Certain regional treaties (European and American) also establish human rights courts. The Office of the UN High Commissioner for Human Rights (UNHCHR) plays a key part in the overall protection and promotion of human rights. Its role is to enhance the effectiveness of the UN human rights machinery and to build up national, regional and international capacity to promote and protect human rights and to disseminate human rights texts and information.

 

Human rights instruments 

The many texts now in force include:

a) Universal instruments

  • the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948

  • the Convention on the Prevention and Punishment of the Crime of Genocide of 1948

  • the International Covenant on Civil and Political Rights of 19 66 o the International Covenant on Social and Economic Rights of 1966

  • the Convention on the Elimination of All Forms of Discrimination against Women of 1981

  • the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment of 1984 o the Convention on the Rights of the Child of 1989

b) Regional instruments

  • the European Convention on Human Rights of 1950

  • the American Convention on Human Rights of 1969

  • the African Charter of Human and Peoples Rights of 1981

 

The hard core  

The international human rights instruments contain clauses that authorize States confronted with a serious public threat to suspend the rights enshrined in them. An exception is made for certain fundamental rights laid down in each treaty, which must be respected in all circumstances and may never be waived regardless of the treaty. In particular, these include the right to life, the prohibition of torture and inhuman punishment or treatment, slavery and servitude, and the principle of legality and non-retroactivity of the law. These fundamental rights that States are bound to respect in all circumstances even in the event of a conflict or disturbances are known as the hard core of human rights.  


Points of convergence

Since humanitarian law applies precisely to the exceptional situations which constitute armed conflicts, the content of human rights law that States must respect in all circumstances (i.e. the hard core) tends to converge with the fundamental and legal guarantees provided by humanitarian law, e.g. the prohibition of torture and summary executions (see p. 21; Art. 75, Protocol I; and Art. 6, Protocol II).