The relationship between international humanitarian law (IHL) and international human rights law (IHRL) remains a troubled one. While both areas of the law strive to protect the lives, health and dignity of individuals, the two go about it from different angles. IHL has evolved and been designed to solve humanitarian problems arising from international or non-international armed conflicts. IHRL is a set of laws forming the basis by which individuals or groups can expect and/or claim certain behavior or benefits from governments.
Some experts have stated that human rights norms are becoming more restrictive in that they are placing greater constraints on States’ freedom to conduct hostilities, preventatively detain individuals of concern, and administer occupied territories. Because of this, some States have pushed back against attempts to extend IHRL into areas traditionally seen as governed by international humanitarian law. Human rights law has historically been viewed as constituting an area of state activity; domestic law governed people and territory within a State’s jurisdiction (provided they did not infringe on another State’s rights). The law governing the relationship between a State and its nationals was a matter of national law – not of an international character.
At the same time international human rights law was being developed, however, international humanitarian law was being expanded. The concurrent application of both bodies of law has the potential to offer greater protection to the individual, but it can additionally raise many problems. One of the issues is when there is a conflict between the laws. When there is in fact a genuine conflict of norms, one of the norms must prevail.
Dr. Cordula Droge notes in [his] article, “Elective affinities? Human rights and humanitarian law:”
While it would be fairly uncontroversial to assume that for the conduct of hostilities – that is, put simply, battlefield situations – humanitarian law is generally the lex specialis in relation to human rights law, two situations are more problematic: the use of force in non-international armed conflict; and the use of force in situations of occupation, where human rights have an important role to play. Is humanitarian law always the lex specialis in those situations?
Read the following two articles:
- A Short History of International Humanitarian Law by Amanda Alexander (Links to an external site.)
- Elective affinities? Human rights and humanitarian law by Cordula Droege (Links to an external site.)
- What law controls in situations of non-international armed conflict and in the use of force in situations of occupation?
- Do you agree with Dr. Droge’s conclusion?
- Why or why not?
- What are the benefits and possible issues with your solution?
- Does your answer change if human rights law is viewed as customary law?
- Why or why not?
B)Current Event: Challenges in Contemporary Armed Conflict (PLG1)
As we have seen, despite the fact that IHL has existed for centuries, it continues to be a developing area of the law. This is particularly true as the nature of armed conflicts has changed so much in recent time. Civilians, in most contemporary armed conflicts, continue to pay a heavy price. Thus, the applicability of IHL is of paramount concern.
- International humanitarian law and the challenges of contemporary armed conflicts from the ICRC. (Links to an external site.)
After reading the article, choose one of the arenas of controversy to focus on (for example, autonomous weapons systems). Find an example from the popular press wherein the very controversy discussed is playing out (U.S.’s use of UAVs in Afghanistan). Analyze the actions being undertaken in light of the applicable law. Critique the arguments both pro and con for the actions and judge which you believe to be the stronger position.
- What supports your position?
- Would the domestic courts likely find in your favor?
- Would an international court?
- Why or why not?
Use current APA Style formatting for your written assignment, citations, and references. Write a minimum of 500 words. As this is a short paper, do not use or add a title page and abstract.