The interaction between international human rights law and international humanitarian law

International human rights law and international humanitarian law, of which Common Article 3 and Additional Protocol II are applicable in non-international armed conflicts, at first glance seem two separate bodies of law with contradicting foundations and provisions. However, this article explores the similarities between the two, demonstrating their shared philosophical underpinnings and purpose of protecting people's rights despite the varying contexts within which they apply. Through studying the application of the two bodies of law in varying jurisdictions, this article concludes that far from an either/or choice, the best way to ensure the protection of those who find themselves the victims of non-international armed conflicts is to use the two bodies of law together so that they complement and strengthen each other. Keywords: international humanitarian lawhuman rights lawnon-international armed conflictColombia Notes P. Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions – Mission to Colombia, UN Doc. A/HRC/14/24/Add.2 (31 March 2010), para. 8. A clear threshold for a sufficient intensity has not been established in international law but factors such as duration, number of victims and means employed are all relevant to the qualification of the conflict (C. Von der Groeben, 'The Conflict in Colombia and the Relationship between Humanitarian Law and Human Rights Law in Practice: Analysis of the New Operational Law of the Colombian Armed Forces', Journal of Conflict & Security Law 16, no. 1 (2011): 146. Article 1.1, APII. ICRC Report, '31st International Conference of the Red Cross and Red Crescent, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts', 28 November–1 December 2011 (October 2011), Geneva, 2. D. Kretzmer, 'Rethinking the Application of IHL in Non-International Armed Conflicts', Israel Law Review 40, no. 2 (2009): 9. Sergio Jaramillo Caro (quoted in Groeben, 'The Conflict in Colombia', 153), the ex-vice minister of defence in Colombia, states, 'We want to progressively reduce the application of IHL as we continue to make headway in the extension and consolidation of the rule of law', acknowledging the permissive character of IHL. Kretzmer, 'Rethinking the Application of IHL', 27. ICRC Report (October 2011), 74. M.N. Hayashi, 'The Principle of Civilian Protection and Contemporary Armed Conflict', in The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force, edited by H.M. Hensel (Aldershot: Ashgate Publishing Limited, 2007), 107. Ibid., 109. Kretzmer, 'Rethinking the Application of IHL', 34. Article 13(3), APII. Case No. 291/07, 25 April 2007. The Colombian Constitutional Court also states, 'the specific sub-rule of the principle of distinction is the obligation binding parties to a conflict to take every feasible step to distinguish between military objectives and civilian objects' (Case No. 291/07, 25 April 2007). ICRC Report (October 2011), 74. Article 7, APII. Article 4, APII. Nicaragua v. United States of America, 26 November 1984. H. McCoubrey, International Humanitarian Law: Modern Developments in the Limitation of Warfare, 2nd ed. (Aldershot: Dartmouth Publishing Company Limited, 1998); Ministry of National Defence, Comprehensive Human Rights and IHL Policy (2007), http://www.mindefensa.gov.co/irj/go/km/docs/Mindefesa/Documentos/descargas/Documentos_Home/Politica_DDHH_MDN.pdf (accessed 23 February 2013), 256. ICTY, 26 January 2000, para. 177. Hayashi, 'The Principle of Civilian Protection', 119. C. Droege, 'The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict', Israel Law Review 40, no. 2 (2007): 33. Article 4, ICCPR. The European Court of Human Rights (ECtHR) qualified the time of public emergency as 'an exceptional situation of crisis or emergency which afflicts the whole population and constitutes a threat to the organised life of the community of which the community is composed' (Lawless v. Ireland, App. No. 332/57 (1 July 1961)). This article analyses the content of the two bodies of law for a more thorough theoretical interpretation in order to see how it can be best used to provide protection in reality. Analysis of the utility of the law in general will not be undertaken by this article. Droege, 'The Interplay', 319. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004. M. Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp: Intersentia, 2003), 295. Article 6, ICCPR. Groeben, 'The Conflict in Colombia', 155. Droege, 'The Interplay', 311. This also demonstrates the flexibility inherent in the law and its ability to adapt and evolve over time in order to be applicable in various contexts. K. Casla, Interactions between International Humanitarian Law and International Human Rights Law for the protection of Economic, Social and Cultural Rights (2012), http://www.reei.org (accessed 1 April 2013), 2. N. Bobbio, The Age of Rights (Cambridge: Polity Press, 1996). Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T (10 December 1998), para. 183; Prosecutor v. Mikaeli Muhimana, Case No. ICTR- 95-1B-T (28 April 2005), para. 539. J. Pictet (ed.) (1958) Commentary on the Geneva Conventions of 12 August 1949: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Red Cross), para. 60. The Wall Advisory Opinion, 2004, para. 106. International Law Commission, 2004, para. 13. Sassòli points out that using the lex specialis paradigm does not necessarily result in IHL prevailing over IHRL, 'The principle does not indicate an inherent quality in one branch of law, such as humanitarian law, or of one of its rules. Rather, it determines which rule prevails over another in a particular situation' (ICRC, 2008), 'How is the Term "Armed Conflict" Defined in International Humanitarian Law?', http://www.icrc.org/web/eng/siteeeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdf (accessed 1 April 2013). 'In a situation of armed conflict, the test for assessing the observance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from the applicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to the applicable lex specialis' (Coard v. USA, IACtHR, Case 10.951, 29 September 1999). Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General, 25 January 2005, para. 143. '... They both seek to guarantee safeguards for persons subject to criminal justice proceedings, and to ensure basic rights including those related to health, food and housing ... The difference lies in that whilst IHRL protects the individual at all times, IHL is the lex specialis which apples only in situations of armed conflict.' 9 July 2004, paras 102–6. Democratic Republic of the Congo v. Uganda, 19 December 2005. 'The Court ... thus concluded that both branches of international law, namely IHRL and IHL, would have to be taken into consideration' (Congo v. Uganda, 19 December 2005). Isayeva, Yusupova dn Bazayeva v. Russia, 57947/00; 57948/00; 57949/00, 24 February 2005. Cyprus v. Turkey, 25781/94, 10 May 2001. Bamaca Velasquez v. Guatemala, Series C, No. 70, 25 November 2000, para. 207. Kretzmer, 'Rethinking the Application of IHL', 25. Pictet et al., Commentary on the Geneva Conventions, 29. Groeben, 'The Conflict in Colombia', 160. Alston, Report of the Special Rapporteur, para. 47. 'Second, a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed' (Public Committee against Torture in Israel v. Israel). However, relying purely on the law to determine whether or not someone should be killed is too simplistic. Although this article adopts a legalistic analysis, the narrow scope this would offer if considered the sole mode of protection is acknowledged. Alston, Report of the Special Rapporteur, para. 3. The Colombian government's position is in line with a number of other governments that have dealt with terrorism; the UK dealing with the Irish Republican Army (IRA), Spain with the Euskadi Ta Askatauna (ETA) and Germany fighting the Red Army Faction (RAF), none of these governments ever considered these conflicts under international law (Arnold and Hildebrand (eds.) (2005) International Humanitarian Law and the 21st Century's Conflicts: Changes and Challenges (Lausanne: Edis), 25). In general, the conflicting parties fall into four 'parties'; the Colombian government with its army and police forces, guerrilla groups such as the National Liberation Army (ELN), Revolutionary Armed Forces of Colombia (FARC) or the April 19 Movement, paramilitary groups evolving from civilian militias under the umbrella organisation the United Self-Defence Unites of Colombia (AUC), and various criminal bands, drug cartels and other illegal armed groups (Groeben, 'The Conflict in Colombia, 143). D. Jinks, 'The Applicability of the Geneva Conventions to the "Global War on Terrorism"', Virginia Journal of International Law 46, no. 165 (2005): 186. See Uppsala Conflict Data Program (UCDP), http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=35®ionSelect=5-Southern_Americas# (accessed 23 February 2011). Groeben, 'The Conflict in Colombia, 150. Case No. IT-03-66-T, 30 November 1995. Case No. IT-04-84-T, 3 April 2008. Case No. C-291/07, 25 April 2007. Ministry of National Defence, Comprehensive Human Rights and IHL Policy, 2007, para. 33. Groeben, 'The Conflict in Colombia', 161. The different types of operational rules that have been developed are 'red card' (adopting an IHRL understanding of necessity, laying out the rules of engagement for land combat) and 'blue card' (foresees a far more stringent set of regulations containing rules of the use of force for the maintenance of security) rules, which limit the amount of permissible force to the exigencies of the situation (ibid.). Interview with Sergio Jaramillo Caro, 2008, 823. Groeben, 'The Conflict in Colombia', 150. Constitution of Colombia, 1991. Groeben, 'The Conflict in Colombia', 152. Penal Code 2000, Article 144. Colombia's Directive No. 10, 2007. The Plenary Chamber of Colombia's Constitutional Court stated that the prohibition of attacks against civilians in the 1977 Additional Protocol II 'has attained customary status, mainly due to its impact on State practice and on conflicts in the last decades' (Case No. C-291/07, 2007). Case No. C-291/07, 25 April 2007. See Pueblo Bello Massacre v. Colombia (Series C, No. 140, 31 January 2006); Rios et al. v. Venezuela (Series C, No. 194, 28 January 2009); Perozo et al. v. Venezuela (Series C, No. 195, 28 January 2009); and Kawas Fernandez v. Honduras (Series C, No. 196, 3 April 2009). Groeben, 'The Conflict in Colombia', 158. Ibid., 162. Ibid., 149. Ibid., 156, mentions the potential problems with this new framework being the lack of appropriate procedural environment for the new rules to be applied. Given the decision as to what set of rules to apply is made ex ante and the assessment as to whether such rules were properly applied and respected is ex post, perhaps more evaluation is needed to uncover the best way this system can operate

Armed conflict · Geneva Conventions · Human rights · International human rights law · International humanitarian law · International law · Municipal law · Political science · Public international law · Conflict, Peace, and Violence in Colombia · Global Peace and Security Dynamics · International Law and Human Rights · Law

• The complex terrain of rights-based approaches

  Etienne Roy Grégoire, Bonnie Campbell et al.•Canadian Journal of Development…•2017

  Add to list