Karna Thapa Faculty of Law T.U

 IHL and IHRL both strive to protect lives, health and dignity of individual, albeit from different angle.  IHL particularly is designed for the protection of people not taking part or no longer taking part in the hostilities.  While the IHRL refers to some entitlements belong to the individuals and expectation and claims made by the individuals before the state and the governments.

Grounds of differenc es International Humanitarian Law International Human Rights Law Meaning $ Definition IHL is a set of International rules established by treaty or customs which are specifically intended to solve humanitarian problems directly arising from international armed conflict, it protects persons and property that are or may be, affected by an armed conflict and limits the rights of the parties to a conflict to use means and methods of warfare of their choice IHRL is a set of international rules established by treaty or customs on the basis of which individual and group can expect and claim certain behavior or benefits from government. Human rights are inherent entitlements which belong to every person as consequences of being human.

Sources Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field, 12 Aug Geneva Convention for the amelioration of the condition of wounded sick and shipwrecked members of armed forces at sea, 12 Aug Geneva Convention relative to Treatment of POW Convention for the protection of Civilian Population Treaty sources are; ICCPR 1966 ICESCR 1966 Genocide Convention1948 CERD 1965 CEDAW 1979 CAT 1984

Applicability Applicable in the armed conflict both IAC and NIAC Applicable at all times and in situation of armed conflict Derogation No derogation is permitted Some IHRL treaties permit governments to derogate certain rights in situation of public emergency threatening life of the nation Derogation must however be proportional to the crisis at hand, must not be introduced as discriminatory basis

Some of the human rights are never derogable such as; Right to life, Prohibition of torture or cruel, inhuman and degrading treatment or punishment;, Prohibition of slavery and prohibition of retroactive criminal laws

Bindingness Binding to all actors of armed conflict In IAC it must be observed by the states involved Whereas in NIAC it binds the government as well as the groups fighting against government or among themselves Thus, IHL lays down rules that are applicable to both states and non state actors IHRL lays down rules binding to governments in their relation with individuals. An opinion is growing that non state actors particularly exercises government like functions must also be expected to respect human rights norms.

Individual Responsibility Individuals are criminally responsible for grave breach of Geneva Convention, Additional Protocols I and other serious violation of laws and customs of war. IHL establishes universal jurisdiction over person suspected of having committed such acts. With entry into force of ICC individuals are accountable for war crimes committed in NIAC. Individuals do not have specific duties under IHRL

Who is Protected? Persons who do not or are no longer taking part in hostilities Wounded sick in the armed forces in the field (GC I) Wounded sick and shipwrecked members of the armed forces at sea(GCII) Prisoners of war(GC III) IHRL being tailored primarily for the peace time applies to all person

Civilian including IDPs, women, children, refugees, stateless persons, journalists and other categories of individuals IHL protects civilians through rules on conduct of hostilities e.g. parties to the conflict at all times must distinguish between combatants and non combatants, military and non military targets

System of Application at international level States have collective responsibility under Art. 1 common to the Geneva Conventions to respect and ensure respect for the convention in all circumstances. Provisions of protecting power for supervisory functions Enquiry procedure and fact finding commissions(Art. 90 AP I) IHRL supervisory system consists of bodies established either by the United Nations or by main IHRL treaties. Charter based organs such as; UN commission on Human Rights and it's sub commission on protection and promotion of Human rights. Universal Periodic Review

Protocol I also under take to in cooperation with United Nations in situation of serious violation of Protocol I and the Geneva Conventions. ICRC ensures protection and assistance to war victims, encourages states to implement their IHL obligations and promotes and develops IHL. Universal Periodic Review Country special rapporteurs Main IHRL treaties also provide for the establishment for the committees of independent experts charged with monitoring their implementation. High commissioners for human rights who has primarily responsibility for the overall promotion and protection of human rights

System of Application at National Level Duty to implement both IHL and IHRL lies first and foremost with states States have to take numbers of legal and practical measures both in peace time and in time of war as follows. Translating IHL treaties Preventing and punishing war crimes through the enactment of penal legislation Protecting the red cross and red crescent movement

Applying fundamental and judicial guarantees Disseminating IHL Training personnel qualified in IHL and appointing legal advisors to the armed forces. IHRL also contains provisions obliging states to implement its rules whether immediately or progressively. State must adopt variety of legislative, administrative, judicial and other measures necessary to give effect to right provided for in the treaties. This may include enacting criminal legislation to out law and repress prohibited under IHRL treaties.

System of Application at Regional level Under IHL no regionally courts for its implementation are found regional human rights courts and commissions are established under main regional human right treaties in Europe America and Africa European court of Human rights (established under European Convention on Human Rights 1950) Inter American Commission of Human Rights

Inter American Court of Human Rights African Commission on Human and People's Rights (established under Banjul Charter). African treaty to establish African Human rights court has not come into force.

Similarities between IHL and IHRL  Both of the bodies of law aim to protect human life  Prohibit torture and cruel treatment  Prescribe basic rights for persons subject to a criminal justice process  Prohibit discrimination  Comprise for the protection of women and children  Regulate aspects of right to food and health  Provide individual criminal responsibility for some international crimes such as; genocide, crime against humanity, war crimes and tortures  Violation of both bodies of law may be monitored by commission procedures