Exploration 2A: For Teachers

IHL & Human Rights Law

Content and Complementarity

International humanitarian law (IHL) and human rights law are complementary. Together, they provide a framework for the comprehensive protection of people in situations of violence.

Human rights law is a set of international rules, established by treaty or custom, which applies to everyone at all times and in all circumstances. The purpose of human rights law is to protect the lives and human dignity of individuals from arbitrary behaviour by their own governments. Human rights law therefore continues to apply even during armed conflict.

Some human rights treaties, however, permit governments to limit or suspend certain rights (e.g. freedom of movement, liberty and security, freedom of association) during public emergencies, although only to the extent strictly required by the situation. Nevertheless, there remains a ‘hard core’ of human rights that may never be limited or suspended under any circumstances, not even during public emergencies or armed conflict. The ‘hard core’ of human rights includes:

If all these non-derogable rights are brought together, it can be seen that essential basic rights are guaranteed by both IHL and human rights law.

  • The right to life
  • The prohibition against torture
  • The prohibition against cruel or inhuman treatment or punishment
  • The prohibition against humiliating or degrading treatment or punishment
  • The prohibition against slavery
  • The prohibition against convicting or punishing someone for an act that was not a crime at the time it was committed
During armed conflict, IHL comes into effect as well, as a set of rules, established by treaty or custom, especially adapted to situations of armed conflict. The purpose of IHL is to protect the lives and human dignity of people who are not or are no longer taking part in the fighting and to set limits on conducting war. It thus aims to limit the suffering and the damage caused by war. The rules of IHL may never be restricted or suspended, precisely because they were conceived for the extreme situation of armed conflict. Thus, IHL is a set of fundamental rules to protect people affected by armed conflict, which necessarily includes the ‘hard core’ of human rights as well.

Human Rights Law

The first traces of human rights law date back to the late eighteenth century, to the period in which the Declaration of the Rights of Man and of the Citizen in France and the Bill of Rights in the United States were adopted. Under the influence of the United Nations (UN), the development of human rights law began in earnest with the adoption of the Universal Declaration of Human Rights in 1948.

Two important covenants were signed in 1966 under the auspices of the UN: the International Covenant on Civil and Political Rights (marking the ‘first generation of human rights’: civil and political rights) and the International Covenant on Economic, Social and Cultural Rights (marking the ‘second generation of human rights’: economic, social and cultural rights).

The first covenant has served as a model for many other treaties as well as for national charters on civil and political rights and freedoms. The second one, on the other hand, has seen its impact limited by countries’ varying capacities to implement it.

There is a new tendency to refer to a ‘third generation of human rights,’ involving, for example, the right to national self-determination, minority rights, economic and social development, peace or a healthy environment, which continues to be debated.

The importance of human rights has also been recognized by regional inter-governmental organizations, such as the Council of Europe, the Organization of American States and the African Union. These organizations have developed a number of regional human rights treaties. While, in general, the duty to implement human rights law lies first and foremost with States, most of these instruments provide for mechanisms of implementation, in the form of actual judicial bodies (e.g. the European Court of Human Rights and the Inter-American Court of Human Rights), quasi-judicial bodies (e.g. the United Nations Human Rights Committee and the African Commission on Human and Peoples’ Rights), or reporting organs (special rapporteurs and working groups of the UN Human Rights Council).

IHL

IHL, also known as the ‘law of war’ or the ‘law of armed conflict,’ is a body of international rules that seeks to limit the suffering caused by war. It does so by:
  • Regulating the conduct of fighting, in particular by setting limits on methods and means of warfare
  • Protecting persons who are not or are no longer taking part in fighting, in particular civilians, wounded, sick and shipwrecked combatants, prisoners of war and others detained in relation to the conflict
This body of law developed from a variety of sources.
  • In some contexts, unwritten rules based on local customs regulated behaviour in armed conflict
  • In other cases, warring parties concluded bilateral agreements
  • Countries also issued regulations to their own troops in certain instances

Such rules were generally valid for only one battle or for a specific conflict. Moreover, they were not uniform, varying according to period, place and tradition.

The 1864 Geneva Convention laid the foundations for contemporary international humanitarian law. Since this treaty’s adoption, the law has continued to evolve in stages to limit the devastation caused by technological advances in weapons and new types of conflict. Today the four Geneva Conventions of 1949 and their Additional Protocols of 1977 are the main IHL treaties.

IHL strikes a realistic and pragmatic balance between military necessity and principles of humanity. It does this by prohibiting the infliction of suffering, injury or destruction not necessary for accomplishing legitimate military goals.

IHL is applicable only in armed conflicts. The rules of IHL regulate both international and non-international armed conflicts. However, they do not cover situations of internal disturbance and tension, such as riots or isolated and sporadic acts of violence that do not reach the level of armed conflict.

IHL addresses the reality of armed conflict and regulates only those aspects of the conflict which are of humanitarian concern (jus in bello). It does not consider the reasons for or the legality of resorting to force (jus ad bellum); the provisions of IHL thus apply equally to all warring parties.

All parties to a conflict must respect the rules of IHL. In addition, States party to IHL instruments are obliged to ensure respect for IHL and to prevent and suppress violations of the law as well as to search for and punish those committing ‘grave breaches’ of IHL.

Measures have also been taken at the international level to ensure respect for IHL. A permanent body, the International Fact-Finding Commission, was constituted in 1991 with the primary purpose of investigating allegations of ‘grave breaches’ and other serious violations of IHL. Since the early 1990s, international and ‘internationalized’ criminal tribunals have been established around the world to try and punish the perpetrators of such crimes in particular contexts. In 1998, the international community created the first permanent international criminal tribunal with jurisdiction over the most serious international crimes, regardless of where they were committed.

Note: Module 4 provides more information about this topic.

If Your Students Ask...

The following suggestions can be used to help students think through questions they themselves raise about why those who are fighting accept and respect rules of war.

In most cases, using the “No easy answers” teaching method is recommended for questions like these. (See Methodology Guide.) In addition, however, you might consider using some of the approaches suggested here, if class time allows.


1. If I am winning in a war, why should I obey rules that limit my behaviour?

a. Look at your side’s long-term interest. Do you want to be seen by the world as a criminal?

b. What if your side starts losing? (Consider historical examples of sides who thought they could not lose, but did.) What will happen when your people need protection?

c. Some reasons for governments to obey the rules can include: respect for human dignity, legal obligation, to improve prospects for peace, risk of prosecution, value of maintaining discipline among the troops, to win the support of the population in combat zones and of the public at home and abroad and the belief that the other side might then follow the rules as well.

d. Although armed groups did not participate in making the rules of international humanitarian law (IHL), as a party to the conflict, they have essentially the same reasons to feel obliged to accept and respect the rules of this body of law. Among the reasons for armed groups to respect IHL are the following: the desire to earn the support of the population in combat zones and the good opinion of the international community

Note: Exploration 3C specifically explores reasons why States and armed groups choose to respect IHL.

2. If these rules are broken all the time, why have them?

a. They are not broken all the time. Most of the time they are respected.

b. Does abiding by the rules make news? It is usually violations that make the news.

c. Even if imperfectly respected, these rules do protect many people.

d. When rules are broken, it is often because combatants have no fear of being punished. This is why it is necessary for governments to make sure that both military personnel and civilians are familiar with the rules of IHL, that implementation is monitored and that the law is enforced.

Note: This subject is also addressed in Module 3.

3. Why waste resources caring for enemy prisoners?

a. If you don’t help enemy prisoners, what will that mean for people from your side who are held prisoner by the enemy?

b. Providing for the basic needs of detainees does not affect your own fighting capacity.

4. Who ensures respect for these rules?

a. The primary responsibility for ensuring that the rules of IHL are respected rests with the governments involved in armed conflict. At the same time, armed groups are obliged to respect the rules of IHL.

b. All countries are obliged to prevent and suppress any violations of IHL as well as to search for and punish those committing ‘grave breaches.’

c. The international community has increasingly played a role in enforcing IHL by establishing international mechanisms, such as criminal tribunals.

Note: This subject is also addressed in Module 4.

Key Ideas

  • IHL aims to protect the lives and human dignity of people affected by armed conflict and to limit the suffering caused by war. It is a set of international rules that restricts the means and methods of warfare and protects those who are not or are no longer fighting.
  • Human rights law also aims to protect life and human dignity. While IHL is specifically designed for armed conflicts, it does not replace human rights law, which applies at all times; the two bodies of law are complementary.

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