An increasing convergence of IHL and IHRL

Originally, IHL and IHRL were meant to apply to different situations. Traditional public international law used to distinguish between peace law and war law so that the applicable corpus juris depended on the belligerent situation in a determined place: IHL would apply to war times while IHRL would apply to peace times. This difference in scope of application ratione temporis was grounded on several differences.

The essence of IHRL is to prevent is to prevent the State from infringing individuals’

freedoms and promote its well-being of its people, during peacetime whereas the objective of IHL goal is to regulate the conduct of hostilities and to protect human beings in times of armed conflict. In the latter case, the individual is an object of the rule, in contrast with IHRL, whose subject is the individual. Hence, IHL does not have the specificities of IHRL, i.e. objectivity and non-reciprocity²⁰⁷. In the same line, the

207 SUDRE, Frédéric. Droit européen et international des droits de l’homme, 9e Ed. Paris: Presses

addressees are different. The Law of War traditionally ties a specific branch of the State, the military one, whereas IHRL apply to all State authorities.

These differences result from the fundamental difference of nature of both corpuses.

Indeed, IHL has always pretended to be universal. It is one of the oldest branches of international law and has been importantly codified through international treaties and conventions since the nineteenth century. On the contrary, human rights were first developed within the national arena: the British Bill of Rights, the American Constitution, or the French Declaration of human rights, all of these corpuses were created in order to grant rights to their citizens. It is only during the twentieth century that they got internationalized and even universalized most notably with the adoption of the UN Universal Declaration of Human Rights of 1948²⁰⁸ and other treaties thereafter.

Furthermore, these corpuses’ philosophical sources are divergent. The IHL’s philosophical sources go back to the chivalry times when honor, loyalty and the protection of the weak prevailed. It also draws its ideas from religious principles. It often refers to the notion of ‘civilization’ as opposed to barbary²⁰⁹. The law of armed conflicts used to be seen as military law rather than humanitarian law²¹⁰. Conversely, IHRL is the result of the Enlightenment movement of the eighteenth century and has been linked to Western liberal revolutions²¹¹. It used to refer to the political and social organization of the State²¹². Therefore, the Law of War comprised technical rules regulating belligerent relationship with foreigners while human rights used to be led by associative movements invoking liberal or socialist ideals (although it changed after World War II)²¹³.

Universitaires de France, 2008. p. 32.

208 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71, 10 December 1948.

209 For an insight into the diverse religious, philosophical and cultural origins of IHL, see:

GREENWOOD, Christopher. “Historical development and legal basis”. In: FLECK, Dieter. The handbook of international humanitarian law, 2^nd ed. New York: Oxford University Press, 2008, pp. 15-27.

210 KOLB, Robert. Jus in bello, le droit international des conflits armés, Précis 2^eed. op. cit., 2009. p.

143.

211 Ibid.

212 Ibid.

213 Ibid.

Bettina Steible PhD thesis

Another important difference between IHL and IHRL is that they are regulated at international level in very different ways. The latter is regulated by numerous universal and regional declarations and conventions as well as all specific ones, such as the UN Convention of the Rights of the Child. A consequence is that most of them are short and simple texts. On the contrary, IHL is described in a limited but extremely detailed number of treaties and conventions. In the same line, their control is different as most of the human rights conventions refer to their own system of control, which may be universal or regional. This is in contrast with IHL, which establishes a decentralized monitoring system²¹⁴.

Lastly, the ICRC and the UN used to consider each other with mistrust, as the former feared that the instillation of human rights in IHL would lead to its politicization and therefore undermine it. As for the UN, it was established in order to maintain global peace and security. As a consequence, it was rather hostile to develop IHL, a law necessary in times of war, as it would entail acknowledging that it had failed in maintaining international peace and security ²¹⁵. Nonetheless, the position of the UN has evolved. In 1967, the United Nations Security Council (hereafter, ‘UNSC’) referred expressly to the ‘Geneva Convention relative to the Treatment of Prisoners of War’ for the first time and established a connection between IHL and human rights²¹⁶. This new involvement of the UN was further confirmed on the occasion of the Tehran International Conference on Human Rights in 1968²¹⁷.

Indeed, despite these differences, IHL and IHRL share a common principle: they both aim to protect and safeguard human beings. World War II represents an important change in this respect. After horrendous atrocities were committed, the international community established international legal instruments so as to prevent such dramatic exactions from occurring again. As mentioned above, human rights were internationalized, notably with the adoption of the UN Charter in 1945, the Universal Declaration of Human Rights in 1948, or the UN Convention on the Prevention and

214 BETTATI, Mario. Droit humanitaire. op. cit. 2000. p. 21.

215 Ibid.

216 UNSC S/RES/237 (1967).

217 UN Doc. A/CONF.32/41, Final act of the International Conference on Human Rights, Tehran, 22 April to 13 May 1968.

Punishment of the Crime of Genocide in that same year. As some kind of mirroring effect, IHL got humanized. The adoption of the four Geneva Conventions in 1949, particularly GC IV, marks this philosophy as it introduced the “humanitarian” notion in the Law of Armed Conflicts and contributed to building bridges between both corpuses.

The result today is both bodies of law are applicable to armed conflicts. One manifestation of such process is that the statuses of civilians in IHL and of human beings in IHRL are converging²¹⁸.

Various possibilities exist in order to conciliate the application of IHL and IHRL.

According to the first interpretation – the most cautious one – IHL and IHRL are complementary. Indeed, IHRL ensures the protection of human beings in ordinary times while IHL does so in very exceptional times, i.e. in times of armed conflict. However, according to this theory, IHL and IHRL are bodies of law that maintain their specificities and differences.

Another theory conciliating IHL and IHRL is the so-called ‘convergence’ theory. The ICRC is notably working on the convergence of some core rights of both corpuses. And indeed, although they have different material scopes of application, they converge on some points: the obligation to protect the individual regardless of nationality, the non-invocability of the non-execution exception, as well as the obligation to respect in all circumstances some substantial rights²¹⁹. The ICJ seemed to endorse this movement of convergence between IHL and IHRL, insofar as it considered in its Advisory Opinion on Nuclear Weapons that human rights are applicable at all times, including in war time:

The protection of the International Covenant of Civil and Political Rights [ICCPR] does not cease in times of war. (…) In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities²²⁰.

It further confirmed this position on 9 July 2004 in the Advisory Opinion on the Palestinian Wall²²¹. This approach goes further than the “complementary theory” as it

218 KOLB, Robert. Jus in bello, le droit international des conflits armés, Précis 2^eed., op. cit., 2009. p. 22.

219 SUDRE, Frédéric. Droit européen et international des droits de l’homme, 9e Ed., op. cit., 2008. p. 33.

220 ICJ, 8 July 1996, Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, I.C.J. Reports 1996, para 24.

221 ICJ, 9 July 2004, Legal consequences of the construction of a wall in the occupied Palestinian territory, Advisory opinion, I.C.J Reports 2004, p. 136. Confirmed in subsequent cases: ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 Dec. 2005,

Bettina Steible PhD thesis

seeks to grant human beings the best protection through the cumulative application of both juris corpuses²²².

As Heintze underlines it, this jurisprudence is in line with current international human rights treaties which contain provisions applicable to war times²²³. An example at the European level is article 15 ECHR which refers to the application of human rights norms “in time of war or other public emergency threatening the life of the nation”²²⁴. In this case, the State party at stake is allowed to derogate from the obligations included in the Convention. Nevertheless, some rights of this Convention cannot be suspended and are intransgressible rights. This inviolability illustrates the convergence between IHL and IHRL as they both define some essential rights, which cannot be derogated from in any circumstances. Therefore, the convergence theory participates in the creation of a set of rights and principles that transcend all legal branches, a perspective confirmed by the ICTY, which held in the Delalic case of 20 February 2001 that

the two legal regimes share a common 'core' of fundamental standards which are applicable at all times, in all circumstances and to all parties, and from which no derogation is permitted²²⁵.

This convergence is particularly noticeable regarding Common Article 3 insofar as it details a list of rights that have to be safeguarded in any circumstances. In this respect, the rights contained in Common Article 3 are to be interpreted in relation with human rights. For instance, the “judicial guarantees which are recognized as indispensable by civilized peoples” are to be understood in the light of human rights instrument, e.g.

Article 6 ECHR, for which the ECtHR has developed an important jurisprudence²²⁶. In the same line, it is difficult to understand the human right not to be subjected to

para. 216; ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Order, 15 Oct. 2008, at para. 112. Quoted in: TOMUSCHAT, Christian. “Human Rights and International Humanitarian Law”. European Journal of International Law, vol. 21, nº 1, 2010. p. 18.

222 HEINTZE, Hans-Joachim. “On the Relationship between Human Rights Law Protection and International Humanitarian Law”. International Review of the Red Cross, vol. 86, nº 856, 2004. p. 793.

223 ABRESCH, William. “The human rights law of internal armed conflicts: the ECHR in Chechnya”.

European Journal of International Law, vol. 16, nº 4, 2005, pp. 741-767.

224 Convention for the Protection of Human Rights and Fundamental Freedoms, Article 15.

225 ICTY, Prosecutor v. Zejnil DELALIC, Zdravko MUCIC (aka “PAVO”), Hazim DELIC and Esad LANDŽO (aka “ZENGA”) (hereafter, ‘Celebici Case’), Case IT-96-21-A, Appeals Judgment, 20 February 2001, para. 149.

226 See: SUDRE, Frédéric. Droit européen et international des droits de l’homme, 9e Ed., op. cit., 2008.

p. 33.

inhuman treatment – found in IHRL – without taking account of the interpretation made thereof in the context of IHL, especially in the context of GC III²²⁷.

Moreover, IHL and IHRL mutually enrich themselves. IHRL reinforces IHL norms to the extent that it formulates with further details the States’ obligations²²⁸. In the same way, IHL actualizes HRL, as the problematic of the disappearances underlines it.

Although they constitute a serious human rights violation, in times of war, Geneva Conventions III and IV impose on the Occupying Party some detailed obligations concerning their prisoners so as to avoid the problem of disappearances²²⁹.

In order to solve the problems of applicability between IHL and HRL, it has been sustained that IHL may be considered the lex specialis toward IHRL. The philosophy at the origin of the lex specialis theory is that a “special rule is more to the point (“approaches more nearly the subject in hand”) than a general one and it regulates the matter more effectively (“are ordinarily more effective”) than general rules do”²³⁰. Thus, a State that is party to both IHRL and IHL treaties must interpret their provisions in a consistent way²³¹. This approach was exposed in the ICJ Advisory Opinion on the Legality of the Use or Threat of Nuclear Weapons where, after having said that IHRL applies in times of war as well, the Court held the following:

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. Thus, whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself²³². (emphasis added)

227 HEINTZE, Hans-Joachim. “On the Relationship between Human Rights Law Protection and International Humanitarian Law”. op. cit., 2004. p. 795.

228 Ibid.

229 Ibid.

230 KOSKENNIEMI, Fragmentation of International Law: Topic (a): The function and scope of the lex specialis rule and the question of “self-contained regimes”: an outline, prepared for the Study Group on Fragmentation of International Law of the International Law Commission. Available at:

http://www.un.org/law/ilc/sessions/ 55/fragmentation_outline.pdf, para.2.2. Quoted in: ABRESCH, William. “The human rights law of internal armed conflicts: the ECHR in Chechnya”. op. cit., 2005. p. 5.

231 ABRESCH, William. “The human rights law of internal armed conflicts: the ECHR in Chechnya”. op.

cit., 2005. p. 746.

232 ICJ, 8 July 1996, Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, I.C.J. Reports

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In this case, the Court considered that the right to life is non-derogable, so that no one can be arbitrarily deprived of their life even in times of war. It also recognized the primacy of IHL over IHRL in situations of armed conflicts as it constitutes lex specialis, so that the word ‘arbitrarily shall be read in the light of IHL. Moreover, in its Advisory Opinion on the Wall, the Court demonstrated even more clearly that the right to life in situations of armed conflicts is to be interpreted in accordance with IHL²³³. Indeed, it held the following:

As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law²³⁴.

Thus, IHL and IHRL, originally two distinct corpuses have converged to the point that some authors talk about “human rights law of internal armed conflicts”²³⁵. The application of human rights to non-international conflicts is undeniably important, especially when the State refuses to recognize that an armed conflict is taking place, or to fill in the gaps of IHL. In this regard, the lex specialis approach might prove to be an effective instrument of delimitation of applicability of both bodies of legal norms, although their practical application is difficult²³⁶.