On Human Rights Day, Reflections on Humanitarian Protection in Armed Conflict

Publication Date: 
Wednesday, December 10, 2014

Today, as the world commemorates Human Rights Day, this post reflects on the integral role that human rights plays in humanitarian action, and the debate over the dual or parallel application of international humanitarian law (IHL) and international human rights law (IHRL) in situations of armed conflict.

Modern IHL and IHRL spring from a common historical experience – the horrors of World War II – and the shared goal of protecting human life, health and dignity in both peacetime and wartime. On this day in 1948, the newly created UN General Assembly, meeting in Paris, adopted the Universal Declaration of Human Rights (UDHR), which would form the foundation of IHRL. Less than a year later, in August 1949, the Diplomatic Conference of Geneva adopted the four Geneva Conventions, the foundation of contemporary IHL.

Humanitarian action and human rights also spring from the same notion – the common humanity and dignity of all people – and the shared desire to reduce human suffering. As such, human rights and humanitarian action are inextricably linked. As former UN High Commissioner for Human Rights Navi Pillay has stated it:

It is very often abuse of human rights that causes humanitarian crises in the first place. And without humanitarian aid, the basic human rights of millions of people - including the right to seek asylum from persecution, the right to education, and, most fundamental of all, the right to life - would be denied. Similarly, if human rights are ignored during a humanitarian crisis, the crisis will often deepen.

The Global Protection Cluster similarly emphasizes the role of human rights protection in enhancing humanitarian work:

Most conflicts are rooted in or characterized by large scale or systematic violations of international humanitarian law and human rights. While natural hazards are not disasters, in and of themselves, they become disasters negatively affecting the enjoyment of human rights depending on the elements of exposure, vulnerability and resilience, all factors that can be addressed by human action.

Human rights can thus help to strengthen the resiliency of vulnerable populations, preventing humanitarian crises from further intensifying. When conflicts or disasters do occur, integrating human rights into the design, planning and implementation of humanitarian operations can help humanitarians to respond holistically to the needs of affected populations. A human rights approach focuses not just on the outcome of humanitarian action, but also on the process by which results are achieved. It emphasizes, for instance, participation, capacity building and empowerment of local populations, as well as sustainability and accountability in humanitarian programming.

International Law on Human Rights and Humanitarian Protection 

While international humanitarian law (IHL) and international human rights law (IHRL) share many common features and aims, there are also important differences in the scope, rules and formulation of these two distinct bodies of international law which have given rise to significant debate over their potential dual or parallel application in situations of armed conflict. IHL applies in situations of armed conflict and occupation only, for instance, and regulates the means and methods of warfare as well as the protection of civilian populations. IHRL covers a much broader range of issues and regulates the rights of individuals vis-à-vis their governments, or arguably, armed groups controlling a territory. Traditionally, IHRL was seen as applying at all times, except in situations of armed conflict, during which IHL would apply.

Given significant gaps in IHL with regard to individual protections in wartime, however, an increasing number of legal experts argue for the application of both IHL and IHRL, at least in part, during situations of armed conflict. Especially in situations of non-international armed conflict (i.e. internal conflict) – which make up the majority of contemporary armed conflicts – the rules of IHL are far less extensive than in international armed conflicts. The application of human rights law in such situations thus seeks to fill protection gaps with regard to the obligations of states to protect individual rights – such as the right to life, due process or fair trial – even in wartime.

What happens during armed conflict, though, when IHL and IHRL conflict on a particular matter: e.g. in the case of the right to life. Under human rights law, “Every human being has the inherent right to life” and “No one shall be arbitrarily deprived of his life.” This right is non-derogable, meaning that it cannot be limited, even in emergencies. However, the requirement that the deprivation of life not be arbitrary implies that taking someone’s life may be permitted under some circumstances, so long as it is not arbitrary. Generally, this has been understood to mean that, under IHRL, lethal force may only be used as a last resort. In armed conflict, however, IHL permits lethal force in a much wider set of circumstances: combatants may use lethal force against military targets, so long as their actions are consistent with other the rules of IHL, such as proportionality, distinction, and precaution. The right to life is thus broader under IHRL than under IHL, which allows more exceptions to this right. As a result, the determination of whether IHL or IHRL, or both, applies in a particular situation can have direct implications for individuals on the ground.

In order to determine to how IHL or IHRL should apply in a particular situation, some legal experts argue for the “lex specialis” approach, whereby a more specific rule (lex specialis) governing a particular subject matter prevails over a more general rule (lex generalis). When a norm of IHL applies more specifically to a situation of armed conflict, then, it would prevail over a human rights norm. When IHL is vague or silent on a specific matter, a more specific human rights norm would prevail. Another legal view attempts to harmonize IHL and IHRL through a “complementarity” approach, applying whichever body of law is more appropriate to the particular situation. Combining these two approaches, the “interpretative approach” applies the most specific rule suitable to a particular context, while taking the other rule into account as an interpretative guide. This approach may be particularly useful in contexts where human rights norm are more extensive than IHL, such as during an internal armed conflict.

Since 1948-49, both human rights and humanitarian law and practice have evolved to develop shared and distinct means of protecting individuals from assaults on their life, health, and dignity. While many challenges remain in human rights and humanitarian action, a clear understanding of their important interplay is crucial to effective action in either of these two fields. As the case of the right to life illustrates, the application of the law can have very real implications for individual protection in humanitarian contexts.

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