International humanitarian law, refugee law and human rights law are complementary legal bodies that share a common goal: the protection of life, health and dignity of people. They form a complex network of complementary protections and it is critical that we understand how they interact.
It is a set of rules that seek, for humanitarian reasons, to limit the effects of the armed conflict. It protects people who do not participate or who no longer participate in hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.
The law applies to armed conflict. It does not regulate whether a state can actually use force; This is governed by an important, but distinct, part of international law established in the Charter of the United Nations.
While IHL only applies in times of armed conflict, human rights law applies at all times; in times of peace and in times of armed conflict. The concurrent application of these two legal bodies has been expressly recognized by various international courts, including the International Court of Justice, the UN Human Rights Committee, the European Court of Human Rights, the Inter-American Commission on Human Rights and, by of course, numerous national courts.
What is required in most cases, to improve the situation of people affected by the armed conflict, is greater compliance with the existing legal framework, not the adoption of new norms. It can be said with some certainty that if all stakeholders showed perfect respect for humanitarian law, most of the humanitarian issues before us would not exist. Therefore, all attempts to strengthen humanitarian law must be based on the existing legal framework.
In this regard, it should be remembered that strengthening the legal framework applicable to armed conflicts also requires that other relevant legal regimes be taken into account, in addition to humanitarian law. It is essential that any development or clarification of humanitarian law avoid any unnecessary overlap with existing norms of human rights law.
Any risk of undermining these rules should be avoided. However, one essential fact must always be kept in mind: humanitarian law must be respected in all circumstances, while derogation of some provisions of human rights law is allowed during emergencies. Thus, the codification of humanitarian law can help prevent loopholes in practice.
Implementation and reparation for rape victims is another area in which legal development is urgently required. Insufficient respect for applicable norms is the main cause of suffering during armed conflicts.
The scope of the two legal systems is slightly different. International humanitarian law binds all actors in armed conflicts: States, organized armed bases, and individuals.
Human rights law, on the other hand, establishes rules that regulate states in their relations with individuals.
While there is a growing body of opinion that organized armed groups, particularly if they exercise similar functions to the government, must also respect human rights, the issue remains unresolved. While individuals do not have specific obligations under human rights law, the most serious human rights violations, such as genocide, crimes against humanity and torture, are criminalized under international law and These are often crimes under national criminal law.
International humanitarian law can be vague or silent on particular issues, in which case it is appropriate to turn to human rights law for guidance in interpreting the rules in question.
This is most notable in relation to the fair trial provisions, where international humanitarian law contains only general provisions, such as a reference to the right to “judicial guarantees recognized as essential by civilized persons. The precise content of those guarantees can be inferred from the law. from the human rights”. Human rights law is also an important source of norms and protection in non-international armed conflicts, where the norms of international humanitarian law treaties are few.
Since the law is the lex specialis or the law that governs a specific matter, the human rights norm must be interpreted through the prism of international humanitarian law.
What I mean by this? The right to life can serve as an example. What constitutes an “unlawful death” in situations of armed conflict must be assessed on the basis of the relevant rules of international humanitarian law, including the fact that combatants or other persons directly participating in hostilities may be attacked, even with force. lethal; and that the killing of civilians cannot be prohibited in certain circumstances. May be allowable “collateral damage”. The legality of such deaths must be assessed in accordance with the principle of proportionality of international humanitarian law, which requires a balance between the incidental loss of civilian life or injuries suffered by civilians with the concrete and direct military advantage expected from an attack in particular.
Armed conflict and international humanitarian law are important to refugee law and refugee protection in a number of ways.
First, to determine who is a refugee. Many asylum seekers are people fleeing armed conflict and, often, violations of international humanitarian law. Does this make them refugees? Not all people fleeing an armed conflict automatically fall within the definition of the 1951 Refugee Convention, which establishes a limited list of reasons for persecution. Although there may be situations, especially in conflicts with an ethnic dimension, in which people flee for fear of being persecuted for reasons of “race, religion, nationality or belonging to a particular social group”.
In addition, states that are not party to these regional instruments have developed a variety of legislative and administrative measures, such as the notion of “temporary protection”, for example, to extend protection to people fleeing armed conflict.
A second point of interface between IHL and refugee law relates to issues of exclusion. Violations of certain provisions of international humanitarian law are war crimes and their commission may exclude a particular person from the right to protection as a refugee.
If respected, the law acts to prevent the displacement of civilians and ensure their protection during displacement, should they nonetheless have moved.
There should be the creation of a cornerstone of refugee law that forms part of international humanitarian law and human rights law to notably prohibit torture.
No one should be transferred to a place where there is a risk of torture or other forms of ill-treatment.
My last note would be this; The ICRC or the International Committee of the Red Cross should regularly train people in international humanitarian law and refugee law for the continued protection of life, liberty and human rights.