Articles by Avidha Tiwari
Student of Bharati Vidyapeeth New Law College, Pune
Cave arts from the new period, meaning 10000 ago, manifested a reality that also continues with us in conventional times, which reality is armed conflicts. Although the scale of the armed conflicts has changed significantly from that period, however, its effects are still beyond the folks that fight within those conflicts. The unimaginable brunt of those conflicts affects the past, present, and way forward for civilians inevitably. For this reason, with the expansion of human society, we saw the advent of International Humanitarian laws, however, it had been not the sole concern, the consequences of armed conflict transcend the loss of basic amenities, and it affects the dignity and integrity of the people stricken by it. These violations found their answers within the variety of human rights that represent the essential essence of our humanity. This shows that interaction between humanitarian laws and human rights was also inevitable. As we shall see further, this interaction has not been a smooth one, since it gives rise to multiple issues that are now the concerns of the latest law of nations theorists, scholars, and administrators. During this article, we are going to explore a number of these issues in-depth, but before, it's important to grasp the connection between international humanitarian laws and human rights themselves.
International law of Armed Conflict
International Humanitarian Law (hereafter, IHL), or the law of nations of armed conflict, essentially aims to introduce moderation and restrictions against the battlefield conducts that are essentially contrary to those ideals. Perhaps, that's why, over the other law, it's vulnerable to fail. But, as we shall see, this can be to not undermine its importance, rather, emphasize its necessity together with what it's achieved. Essentially speaking, from the foremost influential work of Hugo Grotius, De jure belli ac pacis (“On the law of war and peace”), to the works of modern-day scholars, the IHL runs as a response to horrifying atrocities committed during the wars.
Among many dimensions of IHL, one fundamental issue remains to be the ‘civilian immunity’ that is, the protection of certain people from the harm of wars. IHL covers, thus, three significant areas, firstly, the protection of those who don't participate or aren't any longer collaborating within the war; secondly, restriction on the means of warfares like weapons; and thirdly, permissible tactics. Accordingly, The International Committee of the Red Cross recognizes two branches in IHL, firstly, the ‘law of Geneva’, which seeks to safeguard the victims of armed conflict; and secondly, the ‘law of the Hague’ which establishes rights and obligations of the belligerents within the conduct of hostilities.
Relation between Human Rights Law and International Humanitarian Law
There is no doubt on the fact that human rights and IHL inevitably overlap into one another, at infinite points, thus, leading to multiple issues likewise, since it seems that some rules of both might not be according to one another, ultimately affecting the people. There are many examples that emphasize their concurrent application and complex relationship between both, like in Northern Cyprus, or Iraq, etc. Moreover, the close relationship between human rights law and IHL lies within the fact of their sharing a standard ideal, that's the protection of the dignity, health, and integrity of the person. Consequently, their guarantees are identical further, just like the right to life, freedom from torture and cruel treatment, and therefore the protection of economic and social rights. Allow us to hunt for some nuanced differences between both of them.
Issues in the coinciding application of IHL and human rights law:
Conflicts of Two States
The simultaneous applicability of both laws means multiple institutions under both IHL and human rights regimes will take into consideration the other’s laws and act accordingly. As an example, among the human rights treaty bodies, the Committee against Torture is addressing a kind of conduct prohibited under both IHL and human rights law. During this context, firstly, it becomes hard to establish which laws are applicable. As an example, as suggested earlier, within the event of an armed conflict between two states, it should not always be directly recognized as a state of war by both states. However, it can still be recognized as an armed conflict. This firstly opens the question of whether every use of armed force in another state’s territory, including its body of water and airspace, is necessarily against the state. To use IHL in such cases, there must be objective reasons to work out such engagement as an armed conflict. This is often usually evidenced by the manifestation of animus belligerendi (it means the intention of the parties during a conflict on whether the state of truth they're involved in may be determined as a war or not), which successively, suggests the chance of other animus. For example, within the cases of extraterritorial enforcement, this has the action by soldiers against persons or entities in another state that engage in international crimes. An action for self-defense might not necessarily be an armed conflict against another state. Examples are often the employment of force by the Colombian army against members of the Revolutionary soldiers of Colombia in Ecuador. Another dilemma may arise during a situation when a state may attempt to bring law and order within the occupied territory, it sometimes seems hard to characterize it as an armed conflict.
Further, the concept of armed conflict becomes more complex within the case of internal conflicts. Article 3 common to the 1949 Geneva Conventions see the ‘armed conflicts not of a global character’, implying that any armed conflict that conflict not covered by Common Article 2, is roofed by Article 3. However, at the identical time, it's been observed that Article 3 was intended to use to internal conflicts. Hence, the question of what's an armed conflict is complex. Even Protocols of 1977 might not resolve this idea satisfactorily. Hence, there's a break of reaching different conclusions on an identical set of facts. During this ambiguity, the human rights body or institution will need to address the emanating issues and determine whether IHL must be applied or not. This can be perhaps for several reasons, as example, the State where the conflict happens may deny internationally for political reasons that things of armed conflict arose, or even not.
Another issue arises within the kind of the applicability of which constituent rules of IHL by Human rights institutions after they'd ascertained that a situation is an instance of armed conflict. Questions like whether an instance was a world conflict or non-international conflict affect the applicability of the set of rules. The substantive law applicable in numerous situations is different, hence the difficulty.
Derogation of human rights
Under Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR), it allows states to derogate certain human rights treaties just in case of public emergency which threatens the lifetime of the state. In such a situation, the State has got to indicate, through the prescribed channel, that it's seeking to derogate certain rights together with the measure it's adopted to affect those rights and also the necessity of taking such measures. The human rights treaties also provide that certain rights remain non-derogable. The Human Rights Committee stated, generally Comment No. 29, that certain derogable rights have a non-derogable core. For example, the prohibition of arbitrary detention is potentially derogable but it's possible the human rights bodies will treat the proper to challenge such detention as non-derogable.
This may create a different issue, for example, when somebody's rights body handling a situation of non-international armed conflict finds that there was no invocation of such derogation by the state, it'll apply the human rights in their entirety. therein case, if human rights bodies fail to require under consideration the IHL, the state is also held to blame for the breach of human rights which could not are unlawful. It denies the applicability of IHL as a matter of law in those cases.
In sum, it may be concluded that human rights are a vital reflection of our humanity. Hence, it becomes indispensable that our laws both acknowledge and resolve the loopholes and challenges provided during this article promptly. the problems however discussed here represent a number of the variables that arise from the interaction between IHL and human rights, but this might not discourage the stride towards their aim, since they not only provide legal and other administrative mechanisms to curb such hostilities and disrobement of human rights of civilians during the armed conflict but also represent a concerted effort of the international community towards the alleviation of the sufferings of affected civilians.