HUMANITARIAN LAWS AND HUMAN RIGHTS LAW- IMMUNITY TO HUMAN SUFFERINGS?

Despite the federal and united governing system, the people of our nation encounter end numbers of wars and human sufferings. In such a scenario, whether any law enacted for the protection of their rights, their life, and their dignity is sufficient and adequate?

The war that is harmful to the lives of the people and which leads to brutal violence also leads to the destruction and deaths. Therefore, the humanitarian law and human rights law came into the picture thereby considering it as a human necessity.

International humanitarian law (IHL) and international human rights law are two different laws but complementary bodies of law. They are both concerned with the preservation of the life, health, and dignity of all the individuals.

Before analyzing the distinguishing parameters of both the laws, we must understand that from where these two originated and what the purpose of bringing them in was? Why the humanitarian law is also known as the Law of War or Law, of Armed Conflict?

Origin of International Humanitarian Law (IHL)-

The term ‘humanitarian law’ was first used in the Geneva Convention of 1864 concerning the conditions of wounded soldiers inland armies. Further, in Geneva Conventions of 1949, the term ‘humanitarian law’ was not used but was mentioned as ‘humanitarian activities and organizations’. This law was enacted to take the war victims away from hell, destruction, suffering like slavery, genocide, and whatnot.

In layman's language, this law was enacted to humanize the war, that is, not to end the war but rather to provide the victims with a protective shield and to lessen the sufferings caused. Due to this objective of Humanitarian Law, it is also known as the 'Law of War or Law of Armed Conflict’.

Whether the humanitarian law of armed conflict or war contributes to perpetuating and extending the phenomenon of war? Does this Law of War favor Worse War or Longer War?

Therefore, I understand that the war without legal restraints would create difficulties in restoring the peace and the security between the parties after the war ends or terminates.

The humanitarian law is binding only to the parties to a treaty and not to a third State without its consent. As a result, three different trends in the law of armed conflict were being devised.

1.      The Geneva trend by Dunant about the condition of war victims.

2.      The Hague trend (Lieber Code) by Francis Lieber about the permissible methods of war

3.      The New York trend by United Nations (UN) to take an active interest in the law of armed conflict/war

Origin of International Human Rights Law (IHRL)-

 In the making of Human Rights Law, many assumptions and theories have been taken into consideration. For example, the Law of God that binds all humans irrespective of their caste, religion, sex, race, etc. But in recent times, the usage of these rights in the legal context and its implementation in courts is in question. There are various arguments that the focus of this human rights law is economic and social rights but some theorists argued that these are not legal rights.

However, the first major international instrument defining “human rights” is the Universal Declaration of Human Rights of 1948 which contains not only civil and political but also social and economic rights. This, in turn, made the scope of applicability of human rights more broaden than any other right in the matter.

It should be noted that UN reports make use of the norms of both the International Humanitarian Law (IHL) and International Human Rights Law (IHRL).

Both IHL & IHRL are the branches of Public International Law. But the relation between them has given rise to many crucial questions. Whether these two different laws are developed in a way of fragmenting and decentralizing the legal framework that protects and preserves the individual? Whether their requirements and conditions conflict with each other or form a common legal ground for human protection concerning armed conflict or war? Whether the degree of protection of human is different under both the laws?

Applicability of IHL & IHRL-

Both IHL & IHRL apply in armed conflicts. The main key difference concerning their scope of application is that IHL allows a State to suspend some human rights in event of an emergency while IHL cannot be suspended (except as provided in Article 5 to the Fourth Geneva Convention). However, the State cannot waive off certain fundamental rights like the Right to Life, the prohibition of torture or treatment, the outlawing of slavery, the principle of legality, and the right to freedom of thought, conscience, and religion.

The states have a legal duty to respect and implement both IHL and IHRL. Whereas, the IHL is based on the Geneva and Hague Conventions, Additional Protocols and a series of treaties that governs the means of waging war such as those of banning blinding laser weapons, landmines and chemical and biological weapons, as well as customary law.

Further, in the event of armed conflict, human rights law (IHRL) complements and reinforces the protection afforded by International Humanitarian Law (IHL).

Let us analyze some of the distinguishing factors between both laws concerning human rights.

International Humanitarian Law (IHL)	International Human Rights Law (IHRL)
·       Regulates the conduct of parties to the armed conflict	·       Provides for certain rights which follow and accrue the individuals and their respective government
·       The concept of depreciation/derogation is not allowed.	·       The concept of depreciation/derogation is recognized.
·       IHL Instruments list the rules of conduct and behavior of parties to the  conflict	·       IHRL list the rights that can be claimed by individuals against their relevant governing authorities
·       The monitoring mechanism used is confidential monitoring.	·       The monitoring mechanism used is Public Monitoring such as evaluating state reports.
·       The principle of humanity is followed	·       Likewise in IHL, the principle of humanity is followed
·       The protection is provided to civilians, sick people, wounded, etc.	·       The protection is provided to women, children, migrant workers, disabled persons, etc.
·       It provides with humanitarian assistance or relief	·       It regulates the rights of individuals relating to foods and health.
·       Any  breach gives birth to the state responsibility and state is duty-bound to investigate the concerning matter	·       Any breach gives birth to the state responsibility as well as to the criminal responsibility of an individual

 

Whether these two laws are complementary? What do International Courts and Tribunals (ICTs) and other bodies have to say about the relationship between IHL & IHRL?

The International Humanitarian Law (IHL) is a part of International Human Rights Law (IHRL).

·       According to the International Court of Justice (ICJ), “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."

·       According to International Criminal Tribunal for former Yugoslavia, “the Tribunal has, on many occasions, had recourse to instruments and practices developed in the field of human rights law. Therefore, With regards to certain of its aspects, international humanitarian law can be said to have fused with human rights law."

·       According to the Inter-American Commission of Human Rights, “There is an integral link between the law of human rights and humanitarian law because they share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity, and there may be a substantial overlapping the application of these bodies of law.”

Therefore, ICTs have played an important role in clarifying the relationship between IHRL and IHL and in interpreting and developing rules and principles of both.

India’s Response/Stand-

The awareness about human rights in India has witnessed a significant shift as Justice J.S.Verma focused on the increasing and positive contribution of human rights while addressing the United Nations Commission on Human Rights.

In 2000, a plethora of judgments have been delivered by the Supreme Court to bring about a radical change/shift in the concept of human rights and the laws. For instance,

 Chairman Railway Board v. Chandrima Das [2000]

In this case, the defendant contended that she cannot invoke Article 21 of the Indian Constitution for compensation as she was not an Indian National.

Issue- The compensation payable to the foreign tourist who was raped at Yatri Niwas?

Court Observation- the court held that the fundamental rights enshrined in the Indian Constitution are in alignment with the Universal Declaration of Human Rights, 1948.

Further, referring to the case of AP v. Challa Ramkrishna Reddy [2004], the court held that the fundamental rights that include the basic human rights also will be available to a prisoner as a prisoner does not cease to be a human being and his rights cannot be seized by the reason of sovereign acts.

Therefore, there is an abundance of case laws that raised the concern for human rights and the related laws and all the decisions by courts have portrayed the growing concern of such rights.

 Gurneet Kaur

BBA LLB (H)

ICFAI UNIVERSITY, DEHRADUN

Disclaimer: This article is the personal opinion of the author. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any Indian Government or any other Government of the world.