Recent developments of the interplay between IHL and IHRL
The Advanced IHL Learning Series are addressed to lecturers and trainers who wish to be abreast of the latest developments in international humanitarian law (IHL) and other related areas. The series help lecturers strengthen their grasp of topical issues and gives them access to teaching resources, thereby enabling them to introduce these topics or issues in the courses or training sessions that they run.
The Advanced IHL Learning Series combines theory and practice; it makes use of videos, reading materials and various other teaching tools. Many of the resources are taken from the 2015 edition of the Advanced Seminar in IHL for University Lecturers and Researchers. The videos feature lectures by speakers at the seminar, and discussions between them and participants. The opinions expressed by the lecturers in the series are theirs alone, and not necessarily shared by the ICRC.
The interplay between IHL and IHRL: An introduction to recent developments
IHL and international human rights law (IHRL) are distinct but complementary bodies of law. They are both concerned with protecting the lives and dignity of individuals. IHL applies during armed conflict only, while human rights law generally applies at all times, in peace and during war.
The application of IHRL to situations of armed conflict is complicated by a number of issues: the differences in the ways IHRL and IHL protect persons; the extent to which IHRL can be applied to armed conflicts taking place outside the territory of the parties concerned; whether non-State parties are bound to apply IHRL in non-international armed conflicts; and the extent to which States may derogate from certain of their obligations under IHRL, in particular those related to detention.
In addition, the simultaneous application of IHL and IHRL, and the principles that should govern the interplay between these two bodies of law, continues to be the subject of debate. The use of the lex specialis principle, to regulate this interplay, has also been discussed at great length: many different interpretations of the principle have been put forward by States, international courts and experts in international law.
The interplay between IHL and IHRL becomes a particularly critical issue in certain situations: for instance, when peaceful protests during a period of armed conflict take a violent turn, because of fighters mingling with peaceful protesters; when force is used against isolated fighters in non-international armed conflicts; or on the question whether and when an enquiry has to be conducted after a person has been killed. In those situations, both the law-enforcement and/or the conduct-of-hostilities paradigms can be used to guide the response of State agents. However, applying one instead of the other, or both at the same time, can provide radically different results and create issues for the protection of the people concerned.
Another issue that has been the subject of intense discussion is whether IHL applicable to non-international armed conflicts provides the legal basis required under IHRL to lawfully deprive individuals of their liberty for non-criminal detention on account of those individuals posing an imperative threat to security (internment). The answer has crucial legal and practical implications for detained individuals, detaining States and implementing mechanisms for both IHL and IHRL.
All these matters have started to be addressed at national, regional and international levels in various ways: through experts’ meetings, by rapidly evolving case law and in landmark judicial decisions. The breadth and depth of the ensuing debate has made it possible to frame issues and questions relating to the interplay between IHL and IHRL more precisely. The hope is that all this will also yield pragmatic solutions for implementing legal obligations in a way that strengthens protection for people affected by armed conflict.
IHL is a set of rules that seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or who are no longer participating in hostilities, and it restricts the means and methods of warfare. IHL is also known as ‘the law of war’ or ‘the law of armed conflict’.
IHL is part of international law, the body of rules governing relations between States. International law is contained in written agreements between States – treaties or conventions – in customary rules, which consist of State practice considered by them as legally binding, and in general principles.
IHL applies to armed conflicts. It does not regulate the legality of the use of force by a State in the first place; an important, but distinct, part of international law set out in the United Nations Charter does that. Hence, IHL imposes obligations equally on all parties to armed conflicts (equality of belligerents), irrespective of whose force was legal or not under the UN Charter. The main sources of IHL are the four Geneva Conventions of 1949, their Additional Protocols of 1977 and 2005, and other treaties concerning the regulation of weapons and protection for specific persons and objects, as well as a number of customary rules.
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 behaviour or benefits from governments. Every person, simply as a consequence of being human, has certain basic entitlements: these are called ‘human rights’. Numerous non-treaty-based principles and guidelines (‘soft law’) also belong to the body of international human rights standards.
The following are the main treaty sources of IHRL: the International Covenants on Civil and Political Rights (1966) and on Economic, Social and Cultural Rights (1966), the UN Conventions on Genocide (1948), Racial Discrimination (1965), Discrimination Against Women (1979), Torture (1984) and the Rights of the Child (1989). The main regional instruments of IHRL 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), the American Convention on Human Rights (1969), and the African Charter on Human and Peoples' Rights (1981).
At the end of the series, lecturers and trainers will be able to do the following:
- identify the main aspects of the interplay between IHL and IHRL, and the issues related to it, in contemporary armed conflicts;
- list the challenges linked to the application of IHRL in international and non-international armed conflicts;
- explain the various approaches proposed by courts and experts in international law to regulate the interplay between IHL and IHLR in international and non-international armed conflicts;
- recognize the specific implications of using the law-enforcement or the conduct-of-hostilities paradigm, or both paradigms at the same time, to regulate the use of force in armed conflict in particular situations;
- describe the evolution of the jurisprudence on the interplay between IHL and IHRL concerning the deprivation of individuals’ liberty during armed conflict;
- compare the ways in which different bodies of case law – domestic, regional and international – address various aspects of the interplay between IHL and IHRL; and
- explain perspectives and future challenges for the interplay between IHL and IHRL.
Structure of the course
1. Required and suggested reading material: before watching the videos, lecturers and trainers can familiarize themselves with the topic by working their way through the required and suggested reading material.
2. Videos: the entire session can then be watched all at once, or chapter by chapter, depending on the user’s needs and interests. Videos can also be watched and discussed in class, as an introduction to the topic.
3. Teaching tools: ICRC tools for teaching IHL, and specific, ready-to-use teaching materials on the interplay between IHL and IHRL, are available. Lecturers and trainers are encouraged to use them to incorporate the topic in their courses or training sessions.
4. Further reading and resources: lecturers and trainers are encouraged to explore further the interplay between IHL and IHRL, and related matters, via additional resources (ICRC statements, publications, reports, etc.). Researchers may wish to use them as sources of information for their projects.
Alexander Breitegger, ICRC
Alexander Breitegger has been a legal adviser in the Thematic Legal Advice Unit at the ICRC since February 2011, and has been working on various subjects, among them the relationship between IHL and IHRL. He regularly attends sessions of the UN Human Rights Council to follow issues of interest to the ICRC. His other areas of interest and responsibility include legal protection for health care, particular in the context of the ICRC-facilitated Health Care in Danger project of the International Red Cross and Red Crescent Movement. Between 2012 and 2014, he took part in most of the experts’ meetings associated with the project. He has also provided legal support in a variety of multilateral negotiations involving the ICRC on the issue, including on Resolution 4 on Health Care in Danger adopted at the 32nd International Conference in 2015 and on UN Security Council Resolution 2286 on the protection of civilians dedicated exclusively to the protection of medical care in armed conflict.
Noam Lubell, University of Essex / Geneva Academy of International Humanitarian Law and Human Rights
Noam Lubell is a professor in the School of Law at the University of Essex, and was Head of the School from January 2014 to January 2017. He has taught at academic institutions in various countries and has worked as an adviser on international law for numerous non-governmental organizations, and as director of a project on prisoners and detainees. He has also served as a consultant and provided training for such organizations as Amnesty International, various 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 of International Humanitarian Law and Human Rights. He has published on a variety of topics, such as self-defence, new technologies, and the scope of the battlefield, and is the author of Extraterritorial Use of Force Against Non-State Actors (Oxford University Press).
Marco Sassòli, University of Geneva / Geneva Academy of International Humanitarian Law and Human Rights
Marco Sassòli is a professor of international law at the University of Geneva. He is also an associate professor at the University of Quebec in Montreal, Canada, where he taught from 2001 to 2003. Mr. Sassòli is a commissioner of the International Commission of Jurists. He worked for the ICRC from 1985 to 1997, inter alia, as deputy head of its legal division, head of its delegations in Jordan and Syria, and as protection coordinator for the former Yugoslavia. During a sabbatical leave in 2011, he rejoined the ICRC as legal adviser to its delegation in Islamabad. He has also served as registrar at the Swiss Supreme Court.
- ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, October 2011, pp. 13-20.
- ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts, October 2015, pp. 33-38.
- ICRC, “Internment in armed conflict: Basic rules and challenges”, opinion paper, November 2014.
- UN Human Rights Committee, General comment No. 31, Article 2 (Right to life), UN Doc. CCPR/C/21/Rev.1/Add. 1326 May 2004 (read only paras 10-11).
- UN Human Human Rights Committee, General comment No. 35, Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35 (read only paras 63-65).
- UN Working Group on Arbitrary Detention, UN Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Depived of Their Liberty to Bring Proceedings Before a Court, UN Doc. A/HRC/30/37 (read only paras 27-32 and 94-96).
- Gloria Gaggioli (ed.), The Use of Force in Armed Conflict: Interplay between the Conduct of Hostilities and Law Enforcement Paradigms, ICRC, Geneva, November 2013, pp. 24-29.
- Geoffrey Corn, “Mixing apples and hand grenades: The logical limit of applying human rights norms to armed conflict”, Journal of International Humanitarian Legal Studies, Vol. 1, No. 1, 2010, pp. 52–94.
- Cordula Droege, “The interplay between international humanitarian law and international human rights law in situations of armed conflict”, Israel Law Review, Vol. 40, No. 2, 2007, pp. 310-355.
- Charles Garraway, “To Kill or Not to Kill?': Dilemmas on the use of force”, Journal of Conflict and Security Law, Vol. 14, No. 3, 2010, pp. 499-510.
- Françoise Hampson, “An Investigation of Alleged Violations of The Law of Armed Conflict”, Israel Yearbook on Human Rights, Volume 46, 2016, pp. 1-27.
- Lawrence Hill-Cawthorne and Dapo Akande, Locating the Legal Basis for Detention in Non-International Armed Conflicts: A Rejoinder to Aurel Sari, EJIL: Talk!, 2 August 2014.
- Noam Lubell, “Challenges in applying human rights law to armed conflict”, International Review of the Red Cross (IRRC), Vol. 87, No. 860, 2005, pp. 737-754.
- Noam Lubell and Nancie Prud’homme, “The Impact of Human Rights Law”, in R. Liivoja and T. McCormack (eds.), Routledge Handbook of the Law of Armed Conflict, Routledge, 2016, pp. 106-122.
- Francisco Forrest Martin, “Using international human rights law for establishing a unified use of force rule in the law of armed conflict”, Saskatchewan Law Review, Vol. 64, 2001, pp. 347-396.
- Daragh Murray, Non-State Armed Groups in NIAC: Does IHL Provide Legal Authority for the Establishment of Courts?, EJIL: Talk!, 4 June 2014.
- Marco Sassòli, “The role of human rights and international humanitarian law in new types of armed conflicts”, in Orna Ben-Naftali (ed.), International Human Rights and Humanitarian Law, Oxford University Press, 2011, pp. 34-94.
- Michael N. Schmitt, “Investigating violations of international law in armed conflict”, Harvard National Security Journal, Vol. 2, Issue 1, 2011, pp. 31-84.
- Ken Watkin, “Controlling the use of force: A Role for human rights norms in contemporary armed conflict”, The American Journal of International Law, Vol. 98, No. 1, 2004, pp. 1-34.
The course is divided into a number of 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
- ICRC, "IHL and Human Rights Law", The basic rules and principles of IHL – e-learning module (available in English, French and Spanish).
- ICRC Advisory Service on International Humanitarian Law, What Is International Humanitarian Law?
- ICRC, "What is the difference between IHL and human rights law?", Extract from ICRC publication "International humanitarian law: answers to your questions".
- Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, ICRC, Geneva, 2016, pp. 27-31.
- Human Rights, IRRC, Vol. 90, No. 871, September 2008.
- Scope of the Law in Armed Conflict, IRRC, Vol. 96, No. 893, Spring 2014.
How Does Law Protect in War?
Book chapters and highlights
- How Does Law Protect in War? Online, "Fundamentals of IHL", Book Chapter.
- How Does Law Protect in War? Online, "IHL and human rights", Book Chapter.
- How Does Law Protect in War? Online, "Interplay between IHL and human rights in armed conflict (I): Use of force and conduct of hostilities", Highlight.
- How Does Law Protect in War?, "Interplay between IHL and human rights in armed conflict (II): Detention", Highlight.
Case studies on IHL and Human Rights (browse by sub-topic here)
- Civil War in Nepal
- ECHR, Al-Jedda v. UK
- ECHR, Bankovic and Others v. Belgium and 16 Other States
- ECHR, Cyprus v. Turkey
- ECHR, Hassan v. UK
- Gaza: Health Situation in the Gaza Strip
- Health Care in Pakistan’s Tribal Areas
- Human Rights Committee, Guerrero v. Colombia
- Inter-American Court of Human Rights, Bamaca-Velasquez v. Guatemala
- Inter-American Commission on Human Rights, Coard v. United States
- ICJ, Democratic Republic of the Congo/Uganda, Armed Activities on the Territory of the Congo
- ICJ/Israel, Separation Wall/Security Fence in the Occupied Palestinian Territory
- India, People’s Union for Civil Liberties v. Union of India
- Inter-American Commission on Human Rights, Tablada
- Inter-American Court of Human Rights, The Las Palmeras Case
- Iraq, Use of Force by United States Forces in Occupied Iraq
- Israel, Human Rights Committee’s Report on Beit Hanoun
- Sudan, Report of the UN Commission of Enquiry on Darfur
- UK, Serdar Mohammed v. Ministry of Defence
- UN, Statement of a Special Rapporteur on Drone Attacks
- United States of America, The Death of Osama bin Laden
- U.S., Lethal Operations against Al-Qa’ida Leaders
Further reading and resources
- William Abresch, “A human rights law of internal armed conflict: The European Court of Human Rights in Chechnya”, European Journal of International Law, Vol. 16, No. 4, 2005, pp.741-767.
- Sean Aughey and Aurel Sari, “The authority to detain in NIACs revisited: Serdar Mohammed in the court of appeal”, EJIL: Talk!, 5 August 2015.
- Alex Conte, “The UK Court of Appeal in Serdar Mohammed: Treaty and customary IHL provides no authority for detention in non-international armed conflicts”, EJIL: Talk!, 6 August 2015.
- Louise Doswald-Beck, “The right to life in armed conflict: Does international humanitarian law provide all the answers”, IRRC, Vol. 88, No. 864, December 2006, pp. 881-904.
- Ryan Goodman, “Authorization v. regulation of detention: What Serdar Mohammed v. MoD got right and wrong”, Just Security, 5 February 2015.
- Monica Hakimi, “A functional approach to targeting and detention”, Michigan Law Review, Vol. 110, No. 8, 2012, pp. 1365-1420.
- Françoise Hampson and Gloria Gaggioli, “Current challenges to IHL: The use of force in armed conflicts – Interplay between conduct of hostilities and law enforcement paradigms”, podcast, ICRC, 2013.
- Françoise Hampson and Noam Lubell, Amicus Curiae Brief, Hassan v. United Kingdom, 29750/09, University of Essex, Human Rights Centre, 2013, 19 pp.
- Daragh Murray, (author), Elizabeth Wilmshurst, Francoise Hampson, Charles Garraway, Noam Lubell, Dapo Akande (consultant eds), Practitioners’ Guide to Human Rights Law in Armed Conflict, Oxford University Press, 2016, 400 pp.
- “Panel discussion: Scope of the law in armed conflict”, ICRC, Geneva Academy of International Humanitarian Law and Human Rights, 2015.
- Ruchi Parekh, Jaloud v. Netherlands: European Court of Human Rights addresses extra-territorial jurisdiction in Iraq, Just Security, 4 December 2014.
- Jelena Pejic, “The European Court of Human Rights’ Al-Jedda judgment: The oversight of international humanitarian law”, IRRC, Vol. 93, No. 883, September 2011, pp. 837-851.
- Marco Sassòli, “International Humanitarian Law and International Human Rights Law”, UN Audiovisual Library of International Law.
- Yuval Shany, “Human rights and humanitarian law as competing legal paradigms for fighting terror”, in Orna Ben-Naftali (ed.), International Human Rights and Humanitarian Law, Oxford University Press, 2011, pp. 15-33.