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International Humanitarian Law and International Human Rights Law

Overlaps, Tensions, and its Application to Current Conflicts
by

Whitney Hopkins

on 18 April 2011

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Transcript of International Humanitarian Law and International Human Rights Law

International Humanitarian Law International Human Rights Law What is IHL? International humanitarian law is the law of armed conflict (or law of war) and their effects. The goal of international humanitarian law is to limit the effects of war on people and property and to protect particularly vulnerable persons.It is a part of international law, which governs relations between states. Definition
Coverage
Origins
Overview Tensions and Overlap Application in Current Conflicts Origins It involves the Geneva Conventions, Hague Conventions, subsequent treaties, case law, and customary international law.
It is mandatory for nations bound by the treaties. What is IHRL? The body of international law aimed to promote and protect human rights at international, regional, and domestic levels. IHRL is made of treaties, agreements between states intended to have binding legal effect between the parties that have agreed to them; and customary international law, rules of law derived from the consistent conduct of states acting out of the belief that the law required them to act that way It includes the Universal Declaration of Human Rights and other treaties such as:
Convention on the Prevention and Punishment of the Crime of Genocide (CPCG)
(adopted 1948, entry into force: 1951)
Convention on the Elimination of All Forms of Racial Discrimination (CERD)
(adopted 1965, entry into force: 1969)[3]
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
(entry into force: 1981)[4]
United Nations Convention Against Torture (CAT)
(adopted 1984, entry into force: 1987)[5]
Convention on the Rights of the Child (CRC)
(adopted 1989, entry into force: 1990)[6]
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)
(adopted 1990, entry into force: 2003)
Convention on the Rights of Persons with Disabilities(CRPD)
(entry into force 3 May 2008) It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons (usually meaning civilians). It is intended to solve humanitarian problems directly arising from international or non-international armed conflicts.

It protects persons and property that are, or may be, affected by an armed conflict (persons who are not, or are no longer involved in the war), and limits the rights of the parties to a conflict to use methods and means of warfare of their choice. The main treaty sources applicable are the four Geneva Conventions of 1949 and their additional protocol I of 1977. The main treaty sources applicable in non-international armed conflict are the article 3, common to the Geneva Conventions and Additional Protocol II of 1977. It is a set of international rules, established by treaty or custom, on the basis of which individuals and groups can expect and/or claim certain behavior or benefits from governments. Human rights are inherent entitlements which belong to every person as a consequence of being human. The principle of universality of human rights is the cornerstone of international human rights law. This has been emphasized in the Universal Declaration of Human Rights, and in many other declarations, conventions, and resolutions. It is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems. Universality Treaties All states have ratified one, and 80% of states have ratified four or more of the core human rights treaties. States have an obligation to protect and respect human rights. International humanitarian law is rooted in the rules of ancient
civilizations and religions - warfare has always been subject to
certain principles and customs.

Universal codification of international humanitarian law began
in the nineteenth century. Nearly every state agrees to be bound by some part of IHL. Geneva Conventions and Other Treaties
Origins The belief that everyone, by virtue of their humanity, is entitled to certain human rights is fairly new. Rights and responsibilities have been acquired through membership in a group throughout history. There are many documents that were precursors to today's human rights documents, such as the: Magna Carta (1215), English Bill of Rights (1689), the French Declaration on the Rights of Man and Citizen (1789), and the US Constitution and Bill of Rights (1791). The Universal Declaration of Human Rights is the main document concerning international human rights. It was adopted December 10, 1948 unanimously by 56 members of the United Nations (with 8 states abstaining). Origins Treaties Tensions Overlap Coverage Coverage They may be simultaneously applicable.

Both share common ideals for human dignity and integrity.

IHRL covers all times, and IHL covers only times of conflict. They sometimes cover similar circumstances. Formation of IHL considers IHRL greatly.This is especially true with regards to the treatment of civilians and combatants placed hors de combat. Occupation and non-international armed conflict are times when IHRL complements the protection of IHL.
I- for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
II- for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea
III- Relative to the Treatment of Prisoners of War
IV- Relative to the Protection of Civilian Persons in Time of War Geneva Conventions Universal Declaration of Human Rights Points of Overlap
No discrimination
No torture, inhuman, or degrading treatment or punishment
Freedom of thought
No retroactive punishment
No slavery
Fair trial
No arbitrary detention There are many circumstances within IHL that permits the restriction of derogable rights if in the best interest of the state. Points of Tension Freedom of expression
Freedom of movement
Freedom of assembly Also, provisions for work, and protection and care for sick, vulnerable, and wounded. (subsistence rights) Application in Current Conflicts Other tensions are most visible in light of current conflicts. Torture Combatant Classification Torture and cruel, inhuman, or degrading treatment and punishment has been a major source of controversy in recent conflicts (Iraq and Afghanistan) There have been instances of this type of treatment being used on detainees to elicit information. Detainees have also been held for indefinite amounts of time with no charge. The enemy is seen as evil, they are almost dehumanized in the eyes of the perpetrators.
Responsibility for this treatment is diluted in the system.
Some say that torture sometimes works, especially when it is used to potentially save lives in time-sensitive situations. Still, using these methods to retrieve information is against both IHL and IHRL. The US tried to justify its use of this treatment and additionally used third parties or locations outside the US such as secret detention facilities. Even argued that torture was morally permissible and included in the US Constitution. The laws bind different actors. IHL binds all actors to an armed conflict, where it must be observed by the states involved or by the government and groups fighting. On the other hand, IHRL lays down rules binding governments in their relations with individuals. However, some IHRL treaties permit governments to derogate from certain rights in situations of public emergency, threatening the life of the nation. Even though, certain human rights are never derogable, such as the right to life, prohibition of torture or inhuman treatment, slavery and retroactive criminal laws. Problems in defining torture: US actions were called "torture lite" Bybee Memo: stated that certain actions like sleep deprivation, waterboarding, detainee-related phobias, stress positions, etc... could be permissible in the War on Terror. (withdrawn later) After instances of torture and cruel, inhuman, and degrading treatment of detainees, many efforts were made to rectify the issue. Albert Mora (JAG) interview: One can say the classic definition, which is that cruelty is the imposition of severe physical or mental pain or suffering on a person.
Torture is an extreme version of cruelty. The distinction is important because there is a legal distinction, both in domestic law and international law, between cruel, inhuman, and degrading treatment, on the one hand, and then torture, on the other.
Said it is hard to know what crosses the line, but he knew what was happening at Guantanomo was crossing the line. Hard to tell when this type of treatment was authorized, and when it was stopped. McCain Amendments preventing cruel, inhuman, or degrading treatment in December 2005. Detainee Treatment Act of 2005 - specifies interrogation techniques Plans to close Guantanamo... one day Problems with indefinite detention.This can be partially attributed to lack of concrete charges. Should detainees be treated as POW's, criminals, an entirely new classification? How can they be POW's if they belong to a non-state actor? These actors are not subject to Geneva Conventions, and do not uphold the rules associated. Could they be tried as criminals instead? Would need something to charge them with. New Geneva Convention for treatment of non-state actors? Being treated as POW's allows them to be held indefinitely, while there is no state for them to be released to and nothing to charge them with. They are deemed too dangerous to release. Other countries have found ways to try terrorists through the justice system. Conclusion IHL and IHRL have differing origins, coverage, and applications; however, they are similar in many ways.
They are similar in many aspects, yet there are also sources of tension.
Current conflicts pose serious and unique problems to both IHRL and IHL.
The US and International community is making an effort to eliminate the use of torture or inhuman, cruel, or degrading treatment or punishment.Additionally, a classification for non-state actors, such as terrorists, need to be established in order to allow for their processing through the appropriate systems. Geneva Conventions say that they are to be treated as POW's (if combatants detained in battle) until a military tribunal can be used to determine their status.
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