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The Interplay between IHL and IHRL

The Advanced IHL Learning Series are addressed to lecturers and trainers who wish to update their knowledge of the latest developments and challenges in international humanitarian law (IHL) and other related areas. They enable lecturers to update and deepen their expertise in topical issues, have access to teaching resources and introduce the topics in their course or training.

Combining theory and practice, the series follow a methodology involving videos, reading materials and various teaching tools. Many resources are taken from the 2015 edition of the Advanced Seminar in IHL for University Professors. The videos feature live lectures and discussions by the speakers and participants at the seminar. Presentations made and opinions expressed in the series only reflect the views of the lecturers concerned and not necessarily those of the ICRC.

Introduction to the recent developments in the interplay between IHL and IHRL

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.

A certain number of challenges arise when applying IHRL to situations of armed conflicts, such as the difference in the ways human rights and IHL protect persons, the extent of the extraterritorial application of human rights to armed conflicts taking place outside of the territory of concerned parties, as well as the question whether non-State parties are bound to apply IHRL in situations of non-international armed conflicts.

Additionally, an important debate is still going on concerning the simultaneous application of IHL and IHRL and the principles that should govern the interplay between those two complementary branches of law. Much has been discussed on the notion of lex specialis as a way to regulate this interplay. In that regard, many different interpretations of this notion have been proposed by States, international courts and the doctrine.

It is especially in certain situations that the question of the interplay between IHL and IHRL becomes critical: when peaceful protests during armed conflicts become violent, because of insurgent fighters mingling among peaceful protesters, both the law enforcement and the conduct of hostilities paradigms can be used to guide the response of State agents. However, applying one, instead of the other, or applying both at the same time, can provide critically different results and challenges concerning the protection of concerned individuals.

Similarly, many discussions have taken place as to whether IHL applicable to non-international armed conflicts provides the legal basis required under IHRL to lawfully deprive individuals of their liberty. Depending on the answer, important legal and practical implications arise with regard to detained individuals, detaining States and implementing mechanisms in the field of IHL and IHRL.

All those questions have been addressed in a thorough expert process, rapidly-evolving case law and landmark judicial decisions at national, regional and international levels. The rich and vivid discussion that has unfolded has allowed to frame issues and questions relating to the interplay between IHL and IHRL more precisely. Hopefully, it will also provide concrete perspectives to implement legal obligations in a pragmatic way that enhances the protection of individuals affected by armed conflicts.

Definitions

International Humanitarian Law
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.

International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State practice considered by them as legally binding, and in general principles.

International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter. IHL main sources are the four Geneva Conventions (1949), their Additional Protocols (1977 and 2005), as well as other treaty texts concerning the regulation of weapons and the protection of specific persons and objects, along with a number of customary rules.

International Human Rights Law
IHRL 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 behavior or benefits from governments. Human rights are inherent entitlements which belong to every person as a consequence of being human. Numerous non-treaty based principles and guidelines ("soft law") also belong to the body of international human rights standards.

IHRL main treaty sources consist of the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966), as well as Conventions on Genocide (1948), Racial Discrimination (1965), Discrimination Against Women (1979), Torture (1984) and Rights of the Child (1989). The main regional instruments are the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the American Declaration of the Rights and Duties of Man (1948) and Convention on Human Rights (1969), and the African Charter on Human and Peoples' Rights (1981).

Learning objectives

At the end of the series, lecturers and trainers will:

  • be able to identify the main aspects and issues related to the interplay between IHL and IHRL in contemporary armed conflicts
  • be able to list the challenges posed by the application of IHRL in international and non-international armed conflicts
  • be able to explain the various approaches proposed by Courts and doctrine to regulate the simultaneous application of IHL and IHLR in international and non-international armed conflicts
  • be able to recognize the specific aspects and implications of using the law enforcement paradigm, the conduct of hostilities paradigm or both paradigms at the same time to regulate situations of peaceful protests turned violent by insurgents in situations of armed conflicts
  • be able to relate the evolution of the jurisprudence addressing the interplay between IHL and IHRL concerning deprivation of liberty of individuals in armed conflict
  • be able to compare how national, regional and international case law address various aspects of the interplay between IHL and IHRL
  • understand what the perspectives and future challenges are with regard to the interplay between IHL and IHRL

Structure of the course

1. Required and suggested readings: before watching the videos, lecturers and trainers are invited to familiarize themselves with the topic by working their way through the required and suggested reading.

2. Videos: the entire session can then be watched at once, or by chapter, depending on the need and specific interest of each user. Videos can also be watched and discussed in class, as an introduction to the topic triggering questions and debate.

3. Teaching tools: ICRC tools on how to teach IHL as well as specific, ready-to-use teaching materials on the interplay between IHL and IHRL are available. Lecturers and trainers are encouraged to use them to integrate the topic in their course or training.

4. Further reading and resources: lecturers and trainers are encouraged to further explore the topic via additional resources (e.g. ICRC statements, publications, event reports) about the on the interplay between IHL and IHRL and related topics. Researchers may wish to use them as informative sources for their research projects on this topic.

Speaker biographies

Alexander Breitegger, ICRC
Legal Adviser, Thematic Legal Advice Unit, ICRC. He has been Legal Adviser at the International Committee of the Red Cross (ICRC) since February 2011, and has been working, among other issues, on the relationship between IHL and IHRL. In this capacity, he regularly attends sessions of the UN Human Rights Council to follow thematic issues of interest to the ICRC. His other files include, in particular, the legal protection of health care, in particular in the context of the ICRC-facilitated Red Cross and Red Crescent Movement HCiD project. In this regard, he has participated in most HCiD expert consultations between 2012 and 2014.

Noam Lubell, University of Essex / Geneva Academy of International Humanitarian Law and Human Rights
Noam Lubell is Professor of Law of Armed Conflict in the School of Law at the University of Essex, and was appointed Head of the School in January 2014. In previous years he has taught in a number of academic institutions in various countries and has worked for NGOs as International Law Advisor, and Director of a Prisoners & Detainees Project. He has also provided consultancies and training for international bodies such as Amnesty International, government bodies, and the BBC. He is the Rapporteur of the International Law Association's Committee on the Use of Force, and holds the Swiss Chair of International Humanitarian Law at the Geneva Academy. He has published on a variety of topics including on self-defence, new technologies, and the scope of the battlefield, and is the author of the book 'Extraterritorial Use of Force Against Non-state Actors' (Oxford University Press).

Marco Sassolì, University of Geneva / Geneva Academy of International Humanitarian Law and Human Rights
Marco Sassòli is professor of international law and director of the Department of international law and international organization at the University of Geneva. He is commissioner of the International Commission of Jurists’ (ICJ). From 2001-2003, he has taught at the Université du Québec à Montreal, Canada, where he remains associate professor. From 1985-1997 he has worked for the International Committee of the Red Cross (ICRC), inter alia as deputy head of its legal division, head of the ICRC delegations in Jordan and Syria and as protection coordinator for the former Yugoslavia. During a sabbatical leave in 2011, he joined again the ICRC delegation in Islamabad. He has also served as registrar at the Swiss Supreme Court.

Reading materials

Required reading

 

Watch the videos

The course is divided into several sessions. Click on a title to watch the video:

  • 1. Outline of the course
  • 2. Applying IHRL in armed conflict: Challenges
  • 3. Interplay between IHL and IHRL: Simultaneous application
  • 4. Interplay between IHL and IHRL: Use of force
  • 5. Interplay between IHL and IHRL: Deprivation of liberty
  • 6. Interplay between IHL and IHRL: Recent case law and decisions
  • 7. Interplay between IHL and IHRL: Future challenges and perspectives

Teaching tools

ICRC resources

How Does Law Protect in War?
Book chapters and highlights

Case studies on IHL and Human Rights (browse by sub-topic here)

Further reading and resources