I TS S COPE OF A PPLICATION AND
3.4 Scope of Application: The Relationship between Human Rights Law and International Humanitarian Law
This Section addresses the particular fields of human rights law and humanitarian law that play a distinct role in the analysis of the legal framework pertaining to the provision of humanitarian assistance.117 This research attempts to set out the current
existing legal framework, and ascertain the minimum rights and duties of actors in a circumstance of crisis. When multiple fields of law apply simultaneously, it is relevant to assess their relationship in order to establish the applicable law in a given circumstance. Whilst general international law is certainly relevant to the legal framework on the provision of emergency aid, that body of law does not contain specific rights and duties tailored to crisis-situations.118 Other bodies of law, such as
for example environmental law, play a role in disaster prevention, and thereby fall outside the scope of this research. Similarly, another specific corpus juris, namely refugee law, only becomes applicable in cross-border situations where refugees require protection by a host state, often in a stadium beyond the provision of emergency aid. The timeframe in which humanitarian assistance takes place thereby lays a focus on two fields of law that both contain specific provisions pertaining to rights and duties involved in the delivery of humanitarian assistance; humanitarian law and human rights law. As Coupland puts it, their names already show that these corpora juris are ‘traditionally associated with humanity’.119 Whilst the IFRC has
developed IDRL Guidelines, these guidelines are not a legislative initiative, and similarly, whilst many states have adopted international disaster response laws, such laws operate at a national level, falling outside the scope of this research. Humanitarian assistance, provided in times of conflict and peace, is however at the heart of human rights law and humanitarian law, and operates at the intersection of these fields of law, in particular in times of a complex emergency.
These two fields of law both contain a variety of provisions that will prove relevant throughout the following Chapters in this research into the legal framework pertaining to the provision of humanitarian assistance. Indeed, many of the following Chapters analyse the particular provisions of human rights law and humanitarian law in order to establish the current legal regime of the various rights and obligations in relation to the provision of humanitarian assistance. The delivery of humanitarian assistance is in fact dependent on the provisions relating to this in these two particular fields of law. The premise of this research that the provision and receipt of humanitarian assistance in any circumstance (be it occupation, conflict or disaster) should be equally provided for to the greatest extent possible under international law,
117
Indeed, while it remains beyond the scope of this research to provide an in -depth analysis of all fields of law that may be touched upon throughout this research, such as general public international law, or particular provisions of refugee law, the fields of international humanitarian law and human rights law must be addressed more at length.
118 See in this regard Chapters 6 and 7. 119
Robin Coupland, ‘Humanity: What is it and how does it influence international law?’ (2001) 83
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regardless of whether it be through human rights law or humanitarian law, results in the need to explore the interrelationship between the two fields of law. This exploration must occur at a more abstract level to ascertain this interrelationship at the outset of this research prior to delving into the individual provisions of the bodies of law. Much has been written on the interplay between these two fields of law, in particular in recent years on the convergence of both fields.120 This potential
convergence, given the mutual goal of a greater protection of persons at all times, indeed concurs with the viewpoint of an overarching approach to the provision of humanitarian assistance that is put forward in this research.
3.4.1 Development of the Interaction between both Fields of Law
While the initial development of humanitarian assistance within the framework of international humanitarian law has been addressed in Chapter 2, the entrance of human rights into the international legal arena has prompted a further development of the legal framework on the provision of humanitarian assistance. As such, the development of the interaction between human rights law and humanitarian law is of relevance considering their application to the framework within which the delivery of humanitarian assistance takes place. Understanding the manner in which these fields of law have developed will enhance the understanding of the actual provisions contained within both bodies of law pertaining to the delivery of emergency aid. Human rights law as relevant to the provision of humanitarian assistance will be addressed in Chapter 5, with a specific view to the ‘right to receive humanitarian assistance’ as a human right. The interaction of humanitarian law and human rights law however can be explored at this stage from a more theoretical viewpoint, prior to the assessment of the various specific rights and duties, and is key to the assessment of the issues that may arise in the consideration of the ‘right to receive humanitarian assistance’ as a human right, and the consequences thereof, as well as the provisions related to the delivery of emergency assistance as incorporated in humanitarian law. For this reason, a brief overview of their joint development is provided prior to the discussion of their legal interaction in light of the provision of humanitarian assistance. Understanding the development of both fields of law and their interaction will enhance the discussion of the factual interaction of the bodies of law in circumstances of crisis today.
In the immediate aftermath of World War II, when human rights entered the international arena, both fields of law did not interact immediately. Human rights law and humanitarian law were considered ‘separate and distinct’ as they had clearly developed independently from one another.121 For several decades, although both
120 See Sections 3.4.1 Development of Interaction between both Fields of Law and 3.4.3 Hierarchy or
Convergence of International Legal Norms?
121 Noelle Quénivet, ‘The History of the Relationship Between International Humanitarian Law and
Human Rights law’ in R Arnold & N Quénivet (eds) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Martinus Nijhoff Publishers 2008) 2; Heike Krieger,
fields of law envisaged the protection of human beings, the perception was that the two areas of law did not have ideological similarities, amongst others due to the divergence in their addressees.122 Indeed, whereas human rights are an individual’s
claims against the state (or another individual),123 humanitarian law sought to govern
the relations between entities in conflict, as well as the protection of those caught in such conflicts.124 The lack of convergence between both corpora juris was
furthermore largely inspired by the viewpoints of two main institutions concerned with their maintenance and implementation: the UN and the ICRC.125 The United
Nations, which emphasised its stance against the use of force, did not want to deal with or acknowledge the law of war any more than the ICRC wished to lose its well- preserved neutrality and therefore chose to stay away from the political agenda of the UN, which included human rights.126 Intermittently, statements did emerge that
placed human rights and international humanitarian law within the same context, such as the closing statement of the President of the ‘Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims’ of 1949, Max Petitpierre, who commented:
“[…] we shall celebrate the anniversary of the Universal Declaration of the Rights of Man which was adopted by the General Assembly of the United Nations on December the 10th,
1948. It is (…) interesting to compare that Declaration with the Geneva Conventions. Our texts are based on certain of the fundamental rights proclaimed in it – respect for the human person, protection against torture and cruel, inhuman or degrading punishments or treatment. (…) The Universal Declaration of the Rights of Man and the Geneva Conventions are both derived from one and the same ideal (…) namely that of freeing human beings and nations from the suffering of which they are often at once the authors and the victims […]”.127
Such comments, although indicative of the mindset of some, were certainly not representative for the majority of the viewpoints of states involved in the preparatory works of the 1948 ‘Universal Declaration of Human Rights’ (UDHR) and the Geneva Conventions.128 As a result, the UDHR did not address the matter of human rights in
‘A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study’, (2006) 11 Journal of Conflict and Security Law, 2, 266.
122 Ibid Quénivet, 5. 123
See Section 5.2 The Development of Human Rights Relevant to Humanitarian Assistance.
124 See for a more in depth discussion Sections 2.2.1 Historical Development, 3.2.1 Defining an Armed
Conflict and 3.2.3 Defining Occupation.
125 Krieger, ‘A Conflict of Norms’ (n 121), 267. See also Katharine Fortin, ‘Complementarity between
the ICRC and the United Nations and international humanitarian law and international human rights law, 1948–1968’, (2012) 94 International Review of the Red Cross, 888, 1-22.
126
Robert Kolb, ‘The Relationship between international humanitarian law and human rights law: A brief history of the 1948 Universal Declaration of Human Rights and the Geneva Conventions’, (1998)
International Review of the Red Cross, 324, 409-410.
127 Final record of the Diplomatic Conference for the Establishment of International Conventions for the
Protection of War Victims (Geneva, 21 April - 12 August 1949) Vol. II-B, 536.
128
Kolb, ‘The Relationship between international humanitarian law and human rights law: A brief history of the 1948 Universal Declaration of Human Rights and the Geneva Conventions’ (n 126) 412.
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times of conflict, nor do these human rights receive proper attention in the travaux préparatoires of the 1949 Geneva Conventions.129 The subsequent Commentaries by
Pictet follow suit, making only cautious references to human rights, most frequent in relation to GC IV and Common Article 3.130 Although wary of the notion that
international humanitarian law should be applicable between a state and its nationals, the Commentaries cling to the accepted idea at that time that the application of humanitarian law is between the belligerent state and ‘enemy nationals’.131
The discussion on the true interaction between human rights and humanitarian law did not occur until the late 1960s at the ‘International Conference on Human Rights’ in Teheran, due to many ongoing conflicts at the time such as those in Vietnam, Nigeria and the Middle East, resulting in an increase in interest.132 The
1968 Teheran Conference marked the beginning of contact through UN means, specifically as the Conference adopted a Resolution entitled ‘Human Rights in Armed Conflict’.133 The Resolution was subsequently adopted by the UN General
Assembly, urging the Secretary General to take up studies into the codification needs of international humanitarian law, specifically tailored towards the protection of civilians, prisoners and combatants.134 The ensuing Secretary General reports of 1969
and 1970, equally using the phrasing ‘human rights in armed conflict’,135 signalled
the UN’s choice of placing the discussion on human rights within the context of armed conflict.136 Indeed, the General Assembly continued in this line, adopting
several resolutions in subsequent years on the topic of human rights in armed conflict, one of which specifically refers to the Third Geneva Convention.137 Equally, the UN
commenced to envisage a more active role for itself as an organisation, asserting the need for the development of more substantive rules of procedure for the
129 Ibid 411. 130
Jean Pictet, Commentary on the Geneva Conventions of 12 August 1949 Volumes I-IV (International Committee of the Red Cross 1952-1959), Volume I Commentary GC I Article 7, 78-85; Volume III Commentary GC III Article 7, 87-92 and Article 99, 472-473; Volume IV Commentary GC IV Article 8, 73-80 (inalienable rights), Article 27, 201-204 (treatment of protected persons), Article 32, 221-224 (prohibition of corporal punishment), Article 71, 353-355 (penal procedure), Article 80, 374-376 (civil capacity) and Article 101, 433-435 (complaints and petitions from internees).
131
Ibid Volume IV Commentary GC IV Article 79, 373.
132 Quénivet, ‘The History of the Relationship Between International Humanitarian Law and Human
Rights law’ (n 121) 4.
133
Resolution XXIII ‘Human Rights in Armed Conflict’, adopted by the International Conference on
Human Rights in Teheran, 12 May 1968 (UN Doc. A/Conf.32/41).
134 UNGA Res 2444 (XXIII) ‘Respect for Human Rights in Armed Conflicts’ (19 December 1968) §2(b). 135
UN Secretary General Report ‘Respect for Human Rights in Armed Conflict’, UN Doc A/7720 (20 November 1969) and UN Secretary General Report ‘Respect for Human Rights in Armed Conflict’, UN Doc A/8052 (18 September 1970).
136
Quénivet, ‘The History of the Relationship Between International Humanitarian Law and Human Rights law’ (n 121) 5.
137 UNGA Res 2674 (XXV) ‘Respect for human rights in armed conflicts’ (9 December 1970); UNGA
Res 2675 (XXV) ‘Basic principles for the protection of civilian populations in armed conflict’ (9 December 1970); UNGA Res 2676 (XXV) ‘Respect for human rights in armed conflicts’ (9 December 1970) and referencing GC III in the final preambular §; and UNGA Res 2677 (XXV), ‘Respect for human rights in armed conflicts’, (9 December 1970).
implementation of humanitarian law, as existing rules according to the UN could not adequately meet all present-day situations of armed conflict.138 The 1968 Teheran
Conference can thus be seen as a pivotal catalyst for the branching out of the UN’s vision on human rights, to the point where the organisation sees their possible applicability in times of armed conflict. In fact, the UN General Assembly declared with regard to the provision of humanitarian assistance that:
“The provision of international relief to civilian populations is in conformity with the humanitarian principles of the Charter of the United Nations, the Universal Declaration of Human Rights and other international instruments in the field of human rights. The Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations, as laid down in resolution XXVI adopted by the twenty-first International Conference of the Red Cross, shall apply in situations of armed conflict, and all parties to a conflict should make every effort to facilitate this application”.139
In this statement, the General Assembly clearly recognises the role of humanitarian assistance in transcending the boundaries between both fields of law. Still faced with the common viewpoint that human rights law and humanitarian law operated in different contexts, which could result in a vacuum of protection for individuals, several efforts were made during the 1980s to bridge this gap.140 One of the well-
known soft law results is the 1990 Turku ‘Declaration of Minimum Humanitarian Standards’.141 Hereinafter, the UN Commission on Human Rights declared in 1998
that ‘irrespective of their historical roots’ both international humanitarian law and human rights law both focus on the dignity of the human person and respect for human values, from which logically follows that:
“There is thus no reason why certain acts which may be unlawful in normal times and in situations of internal armed conflict should be lawful in situations of internal violence”.142
This declaration is a confirmation of earlier statements made by both the ICJ and ICTY with regard to the belief that both areas of law are not entirely separate. The
138
UNGA Res 2677 (XXV), ‘Respect for human rights in armed conflicts’, (9 December 1970) preambular § 4.
139 UNGA Res 2675 (XXV) ‘Basic principles for the protection of civilian populations in armed conflict’
(9 December 1970) § 8.
140 Marco Odello, ‘Fundamental Standards of Humanity: A Common Language of International
Humanitarian Law and Human Rights Law’ in R Arnold & N Quénivet (eds) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Martinus Nijhoff Publishers 2008) 30.
141
Turku ‘Declaration of Minimum Humanitarian Standards’, (2 December 1990) adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo Finland.
142 UNCHR Report of the Secretary General “Promotion and Protection of Human Rights: Fundamental
Standards of Humanity” (18 December 1998) UN Doc E/CN.4/1999/92 § 25. See also subsequently UNCHR Report of the Secretary General “Promotion and Protection of Human Rights: Fundamental Standards of Humanity” (12 January 2001) UN Doc. E/CN.4/2001/91; and UNCHR Report of the Secretary General “Promotion and Protection of Human Rights: Fundamental Standards of Humanity” (25 February 2004) UN Doc E/CN.4/2004/90.
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ICJ had acknowledged in its 1996 Advisory Opinion on the Legality of the threat or use of nuclear weapons that a large part of humanitarian law is fundamental to the respect of the human person and ‘elementary considerations of humanity’ as discussed in Section 2.2.3.1 The Principle of Humanity, as well as noting that the law of armed conflict is permeated with an ‘intrinsically humanitarian character’.143
Through such a declaration, the Court indeed acknowledged the common foundation of both fields of law in the notion of ‘humanity’. In the Case of TheProsecutor v. Anto Furundzija, the ICTY Trial Chamber recognised:
“The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law”.144
This position was subsequently reiterated in the ICTY’s Celebici-judgment.145
Following the UN’s ‘change of heart’, and both the ICJ and ICTY’s recognition of the interplay of both fields of law, other actors in the international arena have also acknowledged that although their development may have been pronged, both corpora juris base themselves on the notion of human dignity and equally envisage greater protection for humanity.146 As a result, it is well established today by the ICJ, other
Tribunals, and international organisations that the two bodies of law share a common basis on which they both rely. In particular such declarations by the ICJ and the international tribunals hold international legal value in this regard and contribute to this research’s perspective that an overarching perspective can be held towards the legal framework on the provision of humanitarian assistance.
Two points of critique relevant to the provision of humanitarian assistance must lastly be briefly addressed with regard to the growing merger and simultaneous application of human rights law and international humanitarian law. It has been argued that this simultaneous application of both fields of law can have the effect of firstly not only exacerbating conflicts, but secondly also affecting the neutrality of humanitarian law. With regard to the first argument, Meron notes that ‘humanization’ of armed conflict; namely the greater protection of individuals’ rights in times of conflict, may have the unwanted side-effect of prolonging hostilities or even making
143
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, § 79 and 86.
144Prosecutor v. Furundzija (Trial Judgment) IT-95-17/1-T (ICTY 10 December 1998), § 183. 145 Prosecutor v. Zejnil Delalic, Zdravko Mucic (aka “Pavo”), Hazim Delic and Esad Landžo (aka
“Zenga”) (Celebici - Case) (Appeals Chamber) IT-96-21-A (20 February 2001) § 149: “Both human rights and humanitarian law focus on respect for human values and the dignity of the human person. Both bodies of law take as their starting point the concern for human dignity, which forms the basis of a list of