Human Rights and Humanitarian Action
Humanitarian action increasingly operates in a transitional setting providing protection and assistance in times of relative peace interspersed with bouts of conflict. Such an environment poses challenges to humanitarian actors as there exist two distinct legal regimes governing times of conflict and times of peace; regimes that present obligations not always in concert with one another. As such, it is imperative that practitioners recognize where and when particular norms apply as a governing structure. While the Humanitarian Law (IHL) framework applies only in times of armed conflict, Human Rights Law (HRL) always remains applicable in varying degrees.
In peacetime, the entire content of each human rights treaty is applicable on its respective State Parties. Human Rights treaties abound at both the international and regional level. In total, there are nine core international treaties with eight optional protocols, five regional charters for the protection of human rights, and a plethora of international human rights instruments of varying degrees of legality (from declarations and guidelines to covenants and statutes). Of the nine core human rights treaties, the Convention on the Rights of the Child (CRC) is the most ratified of any human rights treaty with 193 parties; only the United States and Somalia have yet to ratify. Despite not ratifying the original, the US did ratify two Optional Protocols to the CRC in 2002. Of the 187 parties to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the US and Palau remain the two states yet to ratify.
At the international level, the International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols, along with the International Covenant on Social, Economic and Cultural Rights (ICESCR) are the foundational treaties of the International Bill of Human Rights. These treaties, adopted in 1966 by General Assembly Resolution 2200A(XXI), are the embodiment of the Universal Declaration of Human Rights (UDHR) and are widely ratified. The ICCPR has 167 parties, and the ICESCR has 160. Although not ratified by every State, much of the content of these treaties, along with the UDHR, are reflective of customary international law and therefore legally binding on non-signatories. Unlike treaty law, which asserts obligations only on those who agree to them, customary law holds all States accountable for their actions. Law becomes customary if there is consistent and general practice among states, and if this practice is viewed and accepted as law by these States. There are fewer customary laws than treaty laws as the second requirement - that States follow a practice out of a sense of legal obligation - is difficult to meet. Often States may use the consistent and general practice that others do; however, they claim it is a matter of practice and not an obligation of law.
Beyond the ICCPR and the ICESCR are several, more tailored, international treaties including: ICERD; CAT; CEDAW; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW); the International Convention for the Protection of All Persons from Enforced Disappearance (CPED); the Convention on the Rights of Persons with Disabilities (CRPD); and the CRC.
At the regional level, the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples Rights are the three principle instruments of HRL application. These three principle instruments are each enforced by regional human rights courts with jurisdiction over claims brought against a respective State Party. The European system governs all 47 countries in the Council of Europe. The Inter-American Court of Human Rights hears cases against its 25 member States. The African Charter has been ratified by 53 member States and its court was created in 2008 under the Protocol on the Statute of the African Court of Justice and Human Rights.
During times of conflict, many of these rights may be abridged to reflect the constraints of wartime. Certain norms, however, are non-derogable and must be conformed to despite the political and social conditions on the ground. These non-derogable, or jus cogens, norms include: the right to be free from the arbitrary depravation of life; the right to be free from slavery; the right to be free from torture, cruel, or inhuman treatment; and the principle of non-refoulement. Such norms are a form of customary law, binding upon all States; however, they are unique in that they cannot be altered through treaty law or by other agreement, no matter the volatility of the current state of affairs.
The central aim of IHL is to eliminate suffering during times of armed conflict. These are times when it is impractical and often impossible to enforce the full spectrum of human rights: schools may be temporarily closed, homes destroyed, and food scarce. IHL was crafted out of a need to protect those hors de combat and straddles issues of humanity and military necessity. Similar to HRL, IHL is based in both international treaty law and customary law; however, IHL is not established through any regional treaties although there are regional security arrangements like NATO. Furthermore unlike HRL, all IHL principles are non-derogable. In times of armed conflict, IHL is lex specialis, meaning it is the law governing the specific subject matter. It therefore should take precedence over any opposing HRL norms for such time as the hostilities continue. Where the legal regimes are complementary, the Human Rights Council has advocated for a more harmonious approach.
On its face, co-application of IHL and HRL seems beneficial - more rights are allotted for the civilians in a given area. Yet, HRL is founded upon assumptions that conflict areas cannot meet. For example, HRL assumes a specific entity to be held accountable for rights violations. In times of occupation or war, there are often several States exercising jurisdiction over condensed pockets canvassing a larger region. Within situations of occupation is this sense of temporary presence particularly relevant. Occupation law is designed to prevent an occupying power from becoming a legitimate governing force over the population; as a result, the application of HRL alongside Occupation Law tends to function out of sync with the purposes of both.
While IHL and HRL rest upon principles of humanity, the two regimes differ greatly with respect to their jurisdictions. HRL concerns the relationship of the State Party to its citizens. Organizations utilizing a “rights-based” approach to humanitarian action will seek to address the deficiencies in this relationship in an attempt to foster sustainable peace. IHL, on the other hand, concerns any individual involved in combat, separating the immediate consequences of conflict from their underlying political roots. Likewise, those organizations utilizing a “needs-based” approach to humanitarian action seek to address the present situation without delving into its underlying causes.
There are positives to and considerations of both "rights-based" and "needs-based" approaches to humanitarian action. Regardless of which approach is employed, an understanding of HRL and its impact is crucial to delivering the best protection to any population.