WHY DOES INTERNATIONAL HUMANITARIAN LAW BYPASSES HUMAN RIGHTS LAWS IN AN ARMED CONFLICT?

By Mr. Mitesh Ravishankar.


Silent enim leges inter arma[i]

- Marcus Tullius Cicero


1. INTRODUCTION

Two major bodies of international law governing armed conflicts, such as civil wars and revolutions. ‘The law of armed conflict’ which is the Humanitarian law applies to the parties to a conflict; it has laid down rules for conduct of combatants. Humanitarian law is typically specific and are designed to be interpreted and applied by military commanders. Whereas the human rights laws apply to the citizens of a state at the time of peace, requiring the government to respect rights to life, liberty, etc.

In a non-international armed conflict, the government is one party against some citizens which a revolutionary army, the other party to the conflict. The rules provided in Human rights law are often considered to be vague because one major reason as they protect the rights of the citizens and have not distinguished the civilians and the combatants. Therefore, they are designed to be interpreted and elaborated by courts and diplomatic discussion.

2. HISTORICAL PERSPECTIVE

Jus in bello is an age-old concept, the orthodox history of international humanitarian law is the ancients, the knights of the middle ages, the jurists of the early modern period all testify to the record of this concern.[ii] Nor is it just a Western concern. Other cultures, such as China, Japan, India and the Islamic world, have their own traditions of rules of warfare.[iii] It was not until the 19th century that a movement to codify the laws of war began and modern international humanitarian law was born.[iv]

The Lieber code was the first written codified laws of war which was used to govern the conduct of Union forces in the American Civil War,[v] but they regard the Battle of Solferino in 1859 as the crucial moment in the history of modern humanitarian law.[vi]

The current international humanitarian law mainly comprises of International Committee of the Red Cross (ICRC), Geneva Conventions, Hague conventions and the 1977 Additional Protocols to the Geneva Conventions. It was only at the very end of the 20th century that practitioners of international humanitarian law, following the example set by human rights organizations, suddenly accepted the authority of Additional Protocol I and, with it, a humanitarian vision of the jus in bello and the term ‘international humanitarian law’ to describe all of the laws of war.[vii]

3.DOCTRINE OF LEX SPECIALIS

The International Court of Justice (ICJ) and various human rights bodies have explored the extent to which humanitarian law is the lex specialis compared with human rights.

The principle ‘lex specialis derogat legi generali’[viii] applies when the problem of simultaneous applicability both the International Humanitarian laws and Human rights laws. In such a situation the law governing a specific subject shall prevail. Once the lex specialis is determined, the lex generalis still remains present in the background. As the doctrine dual applicability and concurrent application come into play. The interpretation of the lex specialis that creates a conflict with the lex generalis must be avoided as far as possible and an attempt made instead to harmonize the two norms.

If the state practice clarifying which of the two rules prevails in the given situation is not dense enough to be conclusive, the usual methods must be used to discover which of the two rules, derived from the practice analysed from different perspectives, constitutes the lex specialis.

4. CONCLUSION

In the manifestation of an armed conflict application of human rights may leads to much uncertainty in borderline situations and possess a different obligation for the government and the rebels. Humanitarian law of international and Non- international armed conflicts for civilians have a guidelines and procedures to handle conceptual problem and use of force. Therefore, in an International or non-international armed conflict the international Humanitarian law should be applied and human rights laws must not be intervened.

[i]In times of war, the law falls silent, Marcus Tullius Cicero,Pro Tito Annio Milone ad iudicem oratio (Pro Milone)”.

[ii]Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25 ; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106. [iii]H. McCoubrey, International Humanitarian Law: Modern Developments in the Limitation of Warfare (1998), at 1; Bassiouni, “The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities”, Greenwood, The Handbook ofInternationalHumanitarianLaw (2nd edition), at Para 103, 11. [iv] H. McCoubrey, Supra noteii, at 8. [v]Meron, ‘The Humanization of Humanitarian Law’, 94 American Journal of International Law (AJIL) (2000), at 239. [vi]H. McCoubrey,Supra note ii, at 16. [vii]Ibid. [viii]Meron,Supra note iv, at 241.

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