Comparison and Synergy between Human Rights and International Humanitarian Law
International human rights law and international humanitarian law (IHL) are two branches of international law that, although distinct, share principles and characteristics within a cohesive normative system. This means that, despite their differences, the norms of both subsystems are formulated through similar mechanisms, both conventional and customary. Furthermore, the violation of either of these norms triggers the provisions of general international law that refer to the international responsibility of states and individuals.
Currently, both human rights and IHL are regulated by international law, and both subsystems essentially seek to limit or restrict the powers of states that affect their sovereignty. These limits focus on the protection of individuals against arbitrary actions by the state that may violate their rights or cause unnecessary suffering.
The primary objective of human rights is linked to the enjoyment of individual freedoms and guarantees, as well as to their well-being and protection in general. In contrast, the central objective of IHL focuses on the protection of victims in situations of armed conflict.
The convergence and complementarity between human rights and IHL are manifested in a common interest through their specific regulations, which ultimately seek the protection of the individual in all circumstances.
IHL and human rights law apply in different factual contexts. Human rights are enforceable in peacetime, meaning that their rules are fully operational under normal conditions within an institutionalized framework where the rule of law prevails. On the other hand, IHL applies during armed conflicts, whether internal or international, and is considered a law of exception.
Human rights and IHL have distinct origins. Human rights emerged within the domestic sphere of states and are today recognized in national legal systems, even with constitutional status. The implementation of human rights remains primarily the responsibility of each state. After World War II, the international community felt the need to supervise those who, in principle, were supposed to guarantee the effective application of human rights within their jurisdictions. On numerous occasions, the state itself, which was supposed to protect and guarantee the rights of individuals within its jurisdiction, became the systematic violator of those rights.
The internationalization of human rights law has led to a shift in the principle of non-intervention in matters that fall within the exclusive jurisdiction of each state. Systematic violations of human rights within a country can constitute a threat or breach of peace, both regionally and internationally.
The development of human rights, both domestically and internationally, has been linked to diverse political and philosophical positions that have given rise to opposing ideologies regarding the true meaning and scope of the rights that must be protected by the state and supervised internationally.
International Humanitarian Law (IHL) emerged in relations between states at the end of the 19th century as a response by the international community to the horrors of war. In this sense, IHL originated and evolved as a depoliticized movement, distancing itself from currents of political thought. The need to limit the suffering of wounded and sick combatants on the battlefield was the first step toward a series of protections directed at specific categories of individuals affected by armed conflict. The inclusion of new categories of victims has led to a continuous evolution in the expansion of the scope of application of IHL. The wounded and sick in combat were later joined by shipwrecked persons, then prisoners of war, and after the devastating experiences of World War II, the protection of the civilian population affected by armed conflict was established. Today, there are new specific categories of protected persons, as well as the inclusion of vulnerable groups (such as women and children) in conflict situations. This set of rules protecting victims of armed conflict is known as Geneva Law, traditionally recognized as International Humanitarian Law in the strict sense. Since the end of the last century, customary rules on the means and methods of warfare have begun to be codified. This set of rules, which establishes specific limits for belligerent states on how they conduct war, is known as Hague Law. Today, Hague Law has been integrated with Geneva Law, so when we refer to International Humanitarian Law, we are referring to the set of rules that seek to protect victims of armed conflict and those that limit the use of force by states by regulating the methods and means of warfare.
This expanded definition might seem to distance the objectives of IHL from the fundamental purposes of human rights. The regulation of the methods and means of warfare may seem disconnected from the primary objectives of human rights. However, restricting the use of force in armed conflict seeks to rationalize its application, thereby limiting the generation of unnecessary suffering.
International Humanitarian Law (IHL) is based on the acceptance that collateral effects impacting the lives and property of civilians during armed conflict are, to a certain extent, justifiable if they result from the use of force based on military necessity. This same logic applies to the impact of war on the environment.
Furthermore, each legal system has principles and characteristics that give it a unique identity, which in turn supports the independence of its structures. However, in practice, the rules of IHL and those protecting human rights may overlap in certain aspects.
Regarding the application of these rules, there are situations that may fall outside the scope of both human rights and IHL. The normative gaps that arise from the absence of rules addressing new circumstances affecting people in contexts of armed conflict or internal violence highlight a void that needs to be adequately addressed by states, both domestically and internationally. Currently, efforts to achieve effective complementarity between the two systems are more of an academic concern.
Human rights can be restricted or suspended. The suspension of these rights is even permitted by regional and international agreements in situations of internal unrest, war, or internal violence. Some rights have been recognized as non-suspendable. However, when a state declares the suspension of certain rights in states of emergency, it does not always consider the parameters necessary to guarantee respect for rights that cannot be suspended.
In contrast, IHL rules do not allow restrictions or suspensions, which means they do not authorize the state to make unilateral interpretations regarding a possible suspension or restriction.
Human rights are considered universal and indivisible. There is a set of rights that are fundamental to the dignity of the human person.
These essential rights are grouped into a category known as basic human rights, which constitute the irreducible core of rights (hard core group). These rights, in principle, cannot be suspended, so the state has the obligation to guarantee and respect them even in emergency situations, including internal or international armed conflicts.
Furthermore, these basic rights, which form the irreducible core of human rights, have been recognized as an integral part of IHL applicable to armed conflicts.
Thus, observance of these norms in exceptional situations will depend on the proper application of the mechanisms established in each legal system. The overlap between the norms of International Humanitarian Law (IHL) and human rights serves, to a certain extent, as a backup to ensure the protection of the individual in the context of armed conflicts. Although the universality and indivisibility of essential human rights have been recognized, each state has the capacity to implement these rights in its domestic legislation in a way that may differ from the regulations adopted by other states.
This ability to regulate the same right differently in national legal systems is known as cultural relativism. Cultural relativism does not undermine the essence of a specific right, but rather allows for a differentiated implementation that respects diverse cultural, ethnic, or religious identities. However, this approach to diversity in the application of the same right is not recognized in the field of IHL, which does not contemplate the possibility of variations in internal implementation based on respect for cultural particularities.
The acceptance of a cultural relativism that is considered acceptable in the application of human rights within a state's legal framework has raised numerous questions about possible abuses related to the growing politicization of the issue. In contrast, International Humanitarian Law (IHL), by maintaining its universal and neutral character, has established itself as a set of norms uninfluenced by politics.
International human rights law establishes a direct connection between the state and its citizens, or more broadly, with the individuals under its jurisdiction. On the other hand, IHL imposes obligations on the state regarding the treatment of nationals of other states, whether belligerent or neutral.
In the context of IHL, the legal relationship is established between states, while in the field of human rights, the relationship is formed between the state and the protected individual. Although this is the general rule, there are IHL provisions that also bind the state to its own citizens (as noted in Article 3 common to the four Geneva Conventions of 1949).
Regarding the state's responsibility for violations of international human rights law, the affected individual may, after exhausting domestic remedies, submit a claim to an international or regional body to end the violation and to be granted appropriate reparation for the violated rights. International oversight bodies that monitor states' compliance with human rights will seek to restore the previous status and, where appropriate, demand compensation.
In the context of IHL, responsibility for non-compliance with its rules remains within the scope of state competence. The intervention of protecting powers or the International Committee of the Red Cross is more related to monitoring the application of the rules than to determining the responsibility of the offending state.
IHL establishes that states have the obligation to "respect" and "ensure respect" for its rules (Article 1 common to the four 1949 Geneva Conventions). The legal relationship established by convention binds states to one another. Each state party to the 1949 Geneva Conventions undertakes to respect and ensure respect for the rules of the other states parties. However, in practice, states have shown reluctance to challenge those who violate IHL. In this regard, the position adopted by third states in relation to armed conflicts has generally been to promote the prevention of new or repeated violations.
Thus, two clearly distinct tendencies can be identified: preventive and restorative. Observance of human rights focuses on the restorative function, while IHL plays a primarily preventive role. For this reason, the dissemination of IHL is essential to disseminate the content of its rules for the protection of potential victims of armed conflict.
In the context of international human rights law, affected individuals have the ability to trigger international oversight mechanisms. These oversight mechanisms typically operate ex post facto.
State responsibility for violations of both international humanitarian law (IHL) and human rights does not relieve individuals of their own responsibility. In the context of IHL, sanctions for grave violations oblige the state to prosecute or extradite the responsible individuals.
International human rights law imposes on states the obligation to "guarantee" and "respect" rights recognized through treaties or custom. "Guarantee" means that the state must ensure respect for internationally recognized rights within its jurisdiction. On the other hand, "respect" implies that the state must refrain from violating those rights, whether by action or omission. Both obligations relate to the state's conduct toward its own citizens. The legal relationship remains between the state and the individual. The intervention of international supervisory bodies in the actions or omissions of the State does not alter the primacy of State responsibility in the implementation of human rights. The State that commits violations must remedy the violated right, restore the previous situation to the extent possible, and, if necessary, offer adequate compensation. International protection bodies will demand and monitor compliance with the State's international obligations, but they cannot replace the State in these functions.
Human rights that have been recognized internationally often reflect rights already present in national legislation. However, one of the main challenges in the field of international human rights law is the insufficient implementation at the national level of rights enshrined in regional or international treaties. For this reason, these rights have been formulated in a way that allows states to adapt them to their own realities and capabilities. Although international human rights treaties establish norms that should be directly applied, most of these norms require incorporation into domestic law. This situation is paradoxical given that human rights were initially developed as part of domestic law before being recognized internationally, unlike International Humanitarian Law (IHL), which since the 19th century has been conceived as part of international law that requires internalization for its effective application and enforcement, especially with regard to sanctions for serious violations of IHL. Regarding the subjects protected by both types of law, it is important to note that human rights apply without distinction, while IHL protects specific categories of individuals who are considered victims or potential victims in situations of armed conflict. However, IHL also incorporates the principle of non-discrimination in the protection of those considered victims. All persons not included in special categories of protection continue to be covered by general rules that apply under the principle of non-discrimination.
Regarding the practical application of IHL, this falls primarily on the organs of states in conflict, that is, belligerent states, protecting powers if designated, and the International Committee of the Red Cross.
As mentioned, the application of international human rights law is the responsibility of each state in relation to its nationals or individuals under its jurisdiction. Regional and international organizations charged with the protection of human rights supervise and monitor, and even determine the levels of accountability of states that commit violations. Ultimately, it is these states that must correct or rectify their internal conduct that violates rights, and eventually repair the damage suffered by affected individuals through adequate compensation.
There are currently poorly defined areas of violent situations within the territory of a state, such as emergencies due to internal unrest, low-intensity insurgencies, disturbances of public order due to ethnic, religious, or racial conflicts, and other forms of insurgencies, which do not qualify within the traditional concepts of internal armed conflicts. Furthermore, internationally enforceable human rights are subject to suspension based on the existence of disturbances to public order and national security. This gives rise to situations not expressly contemplated by IHL or, although provided for in a residual manner by human rights norms, their observance is relativized in practice.
There is also evidence of a progressive development based on state practices that extend the application of the basic principles of IHL to situations not necessarily conventionally contemplated in agreements between states. This development has been repeatedly cited by the International Criminal Tribunal for the Former Yugoslavia, which downplayed the need to classify armed conflicts as internal or international, arguing that in certain circumstances the applicable law is consistent. In this regard, the Criminal Tribunal for the Former Yugoslavia (Tadic case, on Jurisdiction) extended the application of international humanitarian law, which regulates international armed conflicts, to internal conflicts and even expressed the irrelevance of this distinction in determining responsibilities in light of certain assumptions developed in the practice of States.
In other recent situations, such as the prosecution of the leaders responsible for the systematic violation of human rights during the military regimes in Argentina, the intervening courts recognized the fight against subversion as an internal conflict, assimilating it within the so-called revolutionary insurgencies, to which the basic principles of IHL should be applied during their repression. However, domestic courts only invoked Argentine law, which to some extent provided for sanctions for identical or, at any rate, similar criminal conduct defined by international law, for the purpose of convicting those responsible for crimes committed during the fight against subversion.
These situations mark a customary evolution toward accepting the application of IHL to situations not necessarily conventionally included as regulated by that law.
There is also a kind of interaction in terms of reciprocal influences between the two laws. Developments tending to maximize the protection of the individual in situations of armed conflict potentially qualify as evolutions of both legal systems.
Beginning with the 1968 Tehran Conference on Human Rights, the term "human rights" in armed conflict began to be used. This trend is reinforced by repeated UN General Assembly Declarations regarding ensuring the observance of basic human rights during armed conflict.
However, referring to human rights in armed conflict can lead to some confusion regarding the independence of principles and structures between international humanitarian law and human rights.
Thus, during an armed conflict, certain human rights may be suspended and others cannot. The latter constitute the irreducible core of human rights that cannot be suspended under any circumstances. This irreducible core of human rights corresponds to rights conventionally guaranteed as enforceable rights during both internal and international armed conflicts, based on express rules of IHL (See Article 3 common to the four Geneva Conventions of 1949, Article 75 of Protocol I, and Articles 4 to 6 of Protocol II).
This convergence regarding the equality of normative content applicable to the same situation raises the problem of the duplication or reiteration of norms. Far from such reiteration causing problems related to their correct application, it imposes reassurance regarding the observance of conducts required by legal systems with differentiated implementation schemes. In this way, regulated behaviors have a greater chance of being implemented as integral parts of one or another regulatory scheme.
In this context, it can be stated that, in practice, IHL and international human rights law are complementary because IHL is directly operative from the beginning of an armed conflict, and its observance tends to prevent unnecessary suffering, while the proper observance of human rights in the face of human rights violations in situations of armed conflict primarily tends to fulfill a restorative function. While both systems are based on preventive and restorative functions, the preeminence of one or the other function is complementary in those areas where there is a clear normative overlap.
The problem persists in other situations where it is possible to detect regulatory gaps caused by the lack of applicable rules from one system or another or by the lack of effective control over the margin of discretion with which a state can act in emergency situations (internal violence, internal unrest, etc.).
Recent attempts to channel humanitarian aid through the intervention of the United Nations Security Council have highlighted the vulnerability of any action related to the application of IHL by highly politicized bodies. The supervisory authority over the application of IHL inevitably requires a high degree of credibility regarding the neutrality and transparency of the actions of those responsible for its implementation and observance (protecting powers, ICRC).
From this general overview of the similarities and differences between IHL and human rights, it is possible to conclude that each system has developed through separate legal structures, within clearly distinguishable areas of validity and application, and with their own frameworks for both international controls and domestic implementation. There is a convergence in the interests and objectives pursued by both systems in ensuring the due protection of all individuals in all circumstances. This convergence has, in fact, led to normative reiterations that are reflected in the specific content of the norms of both laws. This reiteration of content makes it possible to meet the objectives pursued by the different implementation frameworks imposed by IHL and international human rights law. The need for coordination and systematization is evident, allowing, rather than solving the problems of normative overlap, to address situations not covered by either system or situations in which the exercise of an excessive margin of discretion by the State is tolerated. The problem of legal gaps in situations arising from internal violence, internal unrest, or states of emergency has begun to be addressed in certain specific attitudes adopted by states based on their repeated practices aimed at generating customary norms.
A clear example of this trend relates to the extension of the application of conventional norms intended for international armed conflicts, which would apply not only to internal armed conflicts but would also include situations of internal emergency.
The Final Declaration of the United Nations Conference on Human Rights (Vienna, 1993) urges states to coordinate efforts to ensure the observance of human rights during armed conflicts. For our part, we wish to draw attention to the need to coordinate the advances and developments achieved in one system in order to ensure their immediate acceptance in the other. From the interdependence between the two systems, a perfectible control scheme will eventually emerge against the potential arbitrary exercise of the powers inherent to the state.
In this regard, we believe that mechanisms should be implemented that, acting as connecting vessels, allow the extension and scope of normative achievements or advances within one legal framework to penetrate the other system in order to consolidate the due protection of all persons affected by the use of armed force, regardless of the degree or intensity of that force or the eventual definition of a particular situation as an armed conflict.
International human rights law today is oriented toward consolidating the universal and indivisible value of its basic rights and guarantees. At the same time, the natural evolution of human rights tends to pursue the well-being of human beings through the observance of new generations of rights.
IHL continues to have as its indirect objective the creation of new restrictions on the discretionary power of the state in the use of force in order to mitigate unnecessary suffering. The balance between military necessity and the due protection of persons affected by a conflict remains the central issue underpinning all normative progress in IHL.
While these guidelines presuppose the use of different criteria and strategies regarding the future implementation of IHL and international human rights law, a common philosophy is currently emerging across both systems, tending to consolidate their intrinsic values regarding the protection owed to all persons under all circumstances.
A growing interdependence in the common themes of IHL and human rights has succeeded in instilling in the international community a certain expectation regarding the necessity and desirability of eventual complementary applications, for now within their respective areas of normative and factual convergence.