Introduction

There has been a long debate regarding interaction between the International Human Rights law (IHRL) and International Humanitarian law (IHL) during the armed conflict. There are a lot of issues related to the interaction between the two. The issue lies in the origin, scope and object of these two branches of the international law.

The root cause of the problem lies in the overlapping of these two branches. During the armed conflict, which branch of law should be given priority, the IHRL or IHL? The former provides for the rights which every human being has at all places at all the times and the later is the law which specifically governs the situation of armed conflict.

Even if both are complementary and acts simultaneously at the time of armed conflict, which law will prevail in case both of them are inconsistent at some point? How to decide which law shall prevail? All these questions are asked whenever the issue of interaction between IHRL and IHL is discussed. Therefore, this article is going to deal with these questions and other aspects related to the interaction of IHRL and IHL during the period of armed conflict.

Armed conflict under International Humanitarian law

Definition of armed conflict

Before examining the interaction between IHL and IHRL during the armed conflict, it is necessary to understand that what does ‘armed conflict’ means under International law? The term ‘armed conflict’ has nowhere been defined. Even Geneva Conventions do not define the term ‘armed conflict’.

The most accepted definition of ‘armed conflict’ has been provided by International Criminal Tribunal for the Former Yugoslavia (ICTY) in the first case heard by it, Prosecutor v. Tadic[1]. The Appeals Chamber then went on to say that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or within such groups within a state”. This definition has been reaffirmed in the case of Prosecutor v. Kunarac[2]. This definition of armed conflict has been accepted nationally as well as internationally as a Customary International law.

It can be further noted here that the definition of armed conflict indicates about two kinds of armed conflicts: International armed conflict (IAC) and non-international armed conflict (NIAC). 

International Armed Conflict

First part talks about ‘resort to armed force between States’ which means the armed conflict between states. This is a classic definition of IAC. The term ‘between’ is to be interpreted broadly to mean belligerent relationship between the parties. IAC is triggered even in the cases of unilateral use of force by one State. It does not necessarily mean use of reciprocal forces.[3]  There is no threshold requirement for triggering IAC, unlike NIAC. However, the acts must be hostile (not friendly fires) and some acts such as sale or donation of military equipments do not trigger IAC even if there is a potential linkage to a conflict.

Common Article 2 of the Geneva Conventions states that the Conventions shall apply “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” The term High Contracting parties refer to the States who are parties to the Convention. Therefore, it can be again noted here that recognition of the state of war is not necessary for the application of this Convention and also for triggering IAC.

The laws governing the IAC are the four Geneva Conventions of 1949 and the 1977 Optional Protocol I. Article 1(4) of the Additional Protocol I, brings within the purview of IAC, the wars related to National Liberation and the right of self-determination.

Non-International Armed Conflict:

Second part of the definition implies non international armed conflict. As per Common Article 3 of the Geneva Convention, NIAC are armed conflicts in which more than one Non State Armed Groups (NSAs) are involved. Either the conflict involves Government at one side of the conflict or one or more NSA’s at other or involves only two or more NSAs. However unlike IAC, armed conflicts to be categorized as NIAC needs to reach a threshold.

International Human Rights law and International Humanitarian law

International Human Rights law, unlike other International law rules talks about the relationship of individual and States rather than relationship between the two or more States. The aim of Human rights laws is to protect individuals from violations of their rights from the States.

The roots of IHRL can be traced to United Nations Charter of 1945 which established United Nations (UN). UN’s most initial step which led the foundation stone in the area of Human Rights was the adoption of United Nations Declaration of Human Rights (UDHR) in 1948. It provides a vision of a set of minimum guarantees applying to all the people everywhere. 

UDHR is a part of International Bill of Rights. Other two parts of International Bill of Rights is: International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). ICCPR deals with Civil and Political rights of the individual such as right to life, right against arbitrary arrest and detention, etc. ICESCR deals with rights such as right to adequate standard of living, the right to health, right to education, etc. There are also some Regional Human Rights instruments.

On the other hand when we talk about International Humanitarian laws, it governs the wartime situations. It is also known as Laws of armed conflict (LOAC). The main object of International Humanitarian law is to mitigate the adverse impacts of war. It governs both method and means of warfare as well as the treatment of civilians, non combatants, prisoners of war and other vulnerable groups during the wartime.

Hague Conventions 1899 and 1907, Geneva Conventions of 1949 and its Additional Protocols are the key instruments of IHL. Hague Conventions deals with means and methods of warfare and Geneva Conventions sets a standard of humanitarian treatment during the time of war.

Interaction of IHL and IHRL during armed conflict

Origin of International Humanitarian laws is older than that of Human Rights law. However, International Humanitarian law has a key influence on the development of Human Rights law.   The evolution of IHRL has put a question under International law that whether it is only applicable during peacetime or is also applicable during wartime?

Monism and dualism: two conflicting views:

There are two important views pertaining to the interaction of IHL and IHRL: monist and dualist view. As per dualistic view, both IHL and IHRL are exclusive and do not overlap. As per this view, IHL is applicable only during peacetime and IHRL during wartime. This view has become obscure and has been criticized especially in those cases where Human Rights treaties themselves provide for its application during armed conflict.

On the hand, as per monism, during an armed conflict, both IHL and IHRL coexist. This is the generally accepted view under International law. Therefore, it is well settled that during the armed conflict, both IHRL as well as IHL is applicable.

Clashes between IHL and IHRL during armed conflict

When it comes to application of both IHL and IHRL norms during the armed conflict, there are high probabilities of clashes between the two norms. Clashes may arise if one field of law permits an action and the other prohibits it. For instance Article 6 of the ICCPR provides for the right to life. However, IHL does not prevent attacks on combatants provided principles of proportionality, prohibited weapons and other IHL principles are respected. Does this mean violation of IHL norms? What will be the consequences of such conflict between the two norms during the armed conflict? How such kind of conflicts can be reconciled?

Therefore, there can be two ways in which these clashes in the interaction of IHL and IHRL during the armed conflict can be reconciled. Firstly, by derogation clauses in the international human rights instruments and secondly, by giving prevailing effect to the IHRL provisions.

Derogation provisions under International Human Rights instruments:

Human Rights are not absolute in nature. There may be certain emergency situations where violation of such rights can be permitted. Therefore, the Human Rights documents itself contain certain provisions for the derogations of Human Rights. This reflects the non-absolute nature of the Human rights.

Many Human Rights instruments provide for such derogation. For instance, Article 15(1) of the European Convention of the Human Rights (ECHR) provides that derogation from the Human rights provided under ECHR can be made “in times of war or other public emergency threatening the life of the Nation” to the extent strictly required by the exigencies of the situation. Even ‘right to life’ can be derogated ‘in respect of deaths resulting from lawful acts of war’ (Article 15(2)).

Similar provisions are contained in American Convention on Human Rights (Article 27) provides for suspension of guarantees. However, it clearly enumerates certain rights which cannot be suspended, including right to life. Therefore, these provisions provide a channel through which IHL can flow during the time of the armed conflicts.

Overriding effect of IHL norms:

Second method to reconcile the conflicts between IHL and IHRL norms lays in the malleability of human rights standards themselves. During wartime situation, the functioning of Human Rights norms is somewhat different from that of peace time situations.

Sometimes human rights instruments provides for non derogation of some rights such as ‘right to life’ even during emergency situations including armed conflicts. However, absolute compliance of such right is not possible during the time of armed conflict. For instance, Article 6 of the ICCPR provides for right to life which is a non-derogable right. How to deal with such situations during the wartime? Shall the application of IHL norms be waived off during wartime?

The answer is no. In such situations, as opined by ICJ in the case of Nuclear Weapons Advisory Opinion, and reiterated in the cases such as Israeli Wall Advisory Opinion and Democratic Republic of Congo v. Uganda, IHL is to be treated as ‘lex specialis’ and IHRL norms are to be interpreted and applied in light of lex specialis norms.

In the case of Nuclear Weapon Advisory opinion, the ICJ held that “in principle right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict, which is designed to regulate the conduct of hostilities.”

The relationship between IHL and IHRL has been further elaborated in the case of Israeli Advisory opinion where ICJ held that during the armed conflict, the application of IHRL norms are not ceased unless as per the derogation clauses provided under the relevant Human rights instruments. Court further highlights three important probabilities: first, some rights may exclusively be matter of Human Rights law, second, some rights may be the matter of International Humanitarian law and third, some may be matter of both. However, if any of these questions arise during the armed conflict, the Court will consider both the branches of law: International Human Rights as lex generalis and International Humanitarian law as lex specialis.

In the case of Democratic Republic of Congo v. Uganda, the Court reiterated the above positions and held that Uganda being an occupying power in Ituri was under an obligation to prevent violation of both IHL and IHRL provisions.

Further in the case of Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, ICJ held that Israel has an obligation to comply with both IHL and IHRL norms. The Court referred to Wall Advisory Opinion and stated that “international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories”.

The Court further recalls that the “protection offered by human rights conventions does not cease in case of armed conflict or of occupation. Some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may concern both these branches of international law.”

The Court held that Israel is bound by the ICCPR and ICESCR in respect of its conduct in Occupied Palestinian Territory.

Conclusion

It can be concluded from above discussions that even during the time of armed conflict (both IAC and NIAC), the States are bound by both IHL and IHRL norms. However, the extent and manner of application of IHRL is governed by IHL norms. As opined by ICJ in various cases, during the conflict period, the rules of IHL is treated as ‘lex specialis’ and the rules of IHRL are to be treated as ‘lex generalis’. Therefore, the principle of lex specialis derogate legi generali which means the special laws override the general laws apply in such cases governs the interaction between IHL and IHRL norms during armed conflicts.  

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[1] Prosecutor v. Tadic, International Court of the Former Yugoslavia (ICTY) Appeals Chamber Decision on Jurisdiction, 2 October 1995.

[2] Posecutor v. Kunarac, ICTY  Appeals Chamber Judgment, 12 June 2002 [55]-[56].

[3] https://www.icrc.org/sites/default/files/document_new/file_list/armed_conflict_defined_in_ihl.pdf