Speaker 1: Because International Humanitarian Law and International Human Rights Law sound similar, they are often confused. While they do share a common goal of protecting individuals, International Humanitarian Law, also known as IHL, and International Human Rights Law, also called IHRL, are two separate bodies of international law that have been developed, implemented, and regulated differently. Despite the uniqueness of their origins, IHL and IHRL can and do coexist, and in fact, they share many similar characteristics. However, before we look at how IHL and IHRL are similar, it is best to first look at how they are different. Let's look first at IHL. Human IHL began to shape in the mid-1800s during the Franco-Austrian War in Europe and in the Civil War in the United States. The devastating impact these wars had on the common soldiers caused humanitarians like Henri Denon and Clara Barton to realize that even in war, rules needed to exist to protect the sick and the wounded. Similarly, scholars such as Francis Lieber in the United States were tasked with writing down the rules of war that to this point had remained largely based on custom and tradition. From the very beginning of IHL, it was developed and intended to be international law, that is law that would apply in interactions between nations. The result was the original Geneva Convention in 1864, the first document to establish true international humanitarian law. With 12 European nations signing the convention, it became the first international agreement binding nations to follow certain rules, even in the event these nations fought wars against each other. After several more Geneva Conventions, in 1949, the nations agreed to the four Geneva Conventions that are in effect today. These four conventions, along with their three additional protocols, comprise a very detailed and specific set of rules for IHL. IHL was originally called the Law of War, and later the Law of Armed Conflict. Eventually the name of international humanitarian law was settled on as best reflecting the ideal behind the law, to inject humanity in war. Let's look at the key points of IHL before turning to IHRL. IHL exists to govern the relations between parties to an armed conflict, while the purpose behind it is to protect the individual, it seeks to do so by regulating how nations or parties to the armed conflict treat each other when fighting. IHL regulates the parties to the armed conflict, while it remains the responsibility of the parties to the armed conflict to ensure their soldiers comply with IHL. IHL is binding on nations that fight each other, on nations which fight an armed group within their own borders, and in some situations, binding on two or more armed groups who are fighting within the borders of a nation, even if the government forces of the nation are not involved in the fighting. IHL only applies during times of armed conflict, as we'll see soon this is different from IHRL, which applies all the time. IHL also applies extraterritorially. This means that once a party is involved in an armed conflict, IHL applies to them wherever the fighting exists. It can be within the borders of a single nation, or spill over to wherever the fighting goes. This is not to say that borders no longer matter, but IHL is far more concerned about the actions of the parties to the armed conflict, rather than their physical location, so this means that the application of IHL follows the fighting, not the borders. Whether an armed conflict is of international nature, meaning between two or more nations, or of non-international nature, meaning between a government and an armed group within the borders of a single nation, the type of conflict is important as the determination of international or non-international armed conflict plays a significant role in determining which specific aspects of IHL applies. There is no derogation from IHL. This means that even in an emergency, such as war, or a natural disaster, IHL still applies and cannot be suspended. In fact, the very purpose of IHL is for it to apply during armed conflict, so the rules within IHL were written knowing that it would be applied in some of the worst emergency conditions a nation would face. IHL can be enforced internationally. IHL governs the actions of parties to a conflict, so it is most commonly enforced against leaders of the parties. These leaders in turn have the responsibility to ensure those soldiers who fight on their behalf follow IHL. In most situations where violations of IHL are prosecuted, it is against senior government officials or senior leaders of armed groups. To reach these individuals, standing international courts such as the International Criminal Court that has jurisdiction over all nations that have agreed to give the court jurisdiction, and special ad hoc courts such as the International Criminal Tribunal for the former Yugoslavia are set up to prosecute IHL violations arising from a particular conflict. Now we are going to discuss international human rights law. International human rights law developed much differently. Human rights law seeks to achieve the goal of protecting the individual by regulating how a government treats the people under its control. Like IHL, the ideas and principles behind human rights have existed for hundreds of years. However, it wasn't until the mid-1900s and the aftermath of World War II that efforts began to have these concepts apply as a matter of international rather than domestic law. Until this time, how the government of a particular nation treated its own citizens was widely considered no other nation's business. While this is still the general rule today, there is a growing belief that there are certain fundamental rights that should apply to everyone in the world regardless of the country they live in or the government that governs them. One of the earliest efforts to bring common baseline of human rights to the world was the Universal Declaration of Human Rights, a non-binding declaration adopted by the United Nations General Assembly in 1948. While not a binding treaty or recognized as law, it was the first international statement addressing fundamental rights of all people. Similarly, as to how the First Geneva Convention was written to address the suffering of soldiers in time of war, the Universal Declaration of Human Rights was drafted in response to the brutal treatment of civilians during World War II and recognized that everyone should be entitled to certain rights. Since that time, several regional conventions on human rights have emerged, such as the European Convention on Human Rights, Arab Charter on Human Rights, American Convention on Human Rights, and African Charter on Human Rights and People's Rights. More recently, IHRL has been advanced through international treaties such as the United Nations Convention Against Torture. While these treaties have global application, they are focused on protecting certain specific rights, rather than taking a comprehensive approach to addressing all human rights. Despite these efforts, so far there is no single binding international agreement on human rights that applies worldwide. Because international human rights law seeks to broaden recognition of certain rights to all people of the world, the goals of IHRL have been focused on protecting the most basic of human rights, such as the right to life, prohibiting slavery, torture, or arbitrary arrest, as well as recognizing a right of association and freedom of movement. In doing so, IHRL has remained broadly focused and apart from a few treaties that focus on a specific right, lacks the detail and specificity found in IHRL. Now that we know how IHRL law has developed, let's take a look at how it compares to IHRL. IHRL governs how a nation treats people under its control. This may be citizens or non-citizens that are under the control of the government of a nation. In fact, the rights of citizens are often well defined, while the rights of people who are not citizens, but still under the control of the government, are usually less well defined. IHRL is only binding on nations, other groups, such as armed groups in an armed conflict, are not bound by IHRL, however there is a growing belief that if these groups assume control over people in the same way that a government does, then they too should be held responsible for following IHRL. IHRL applies at all times, unlike IHL which only applies during times of armed conflict, IHRL applies during peace and armed conflict. IHRL applies within the borders of a nation. There is near universal agreement that some standard of human rights should apply to the people who live within the nation's borders, as it is clear to see how these people are under the control of the government of that nation. It is less clear how a nation must treat people outside its borders, IHRL is still a relatively new body of law, and this is just one of the many areas in IHRL that are still developing. IHRL recognizes that some derogation of human rights will be required during times of emergency. While fair treatment and protection of all is the goal of IHRL, the law recognizes that in time of emergency a nation may not be able to allow people to enjoy all of their rights. For example, in a natural disaster, such as a hurricane, the government may force people to leave their homes and not return until the storm has passed. It may even use force to detain people who refuse to leave. While under non-emergency conditions, such actions would violate IHRL because of the nature of the emergency, temporarily suspending these rights makes sense. In times of armed conflict, even more substantial rights may be suspended. However, IHRL may not be suspended permanently. Once the emergency has passed, nations are required to ensure that individuals have access to their human rights. IHRL is sometimes referred to as soft law, meaning that for the most part, it has not been written into a broad, binding international agreement and there are no courts to enforce it on a global scale. Some have argued that long-standing documents, such as the United Nations Universal Declaration of Human Rights, while aspirational and non-binding at the time it was written, have been recognized by enough nations for enough years to become customary international law. Customary international law is created when a concept or practice becomes so widely accepted by the nations of the world that it is considered international law even though it has not been explicitly agreed to in a treaty. Even if some parts of IHRL are considered customary international law, there are no courts within worldwide jurisdiction to enforce it. While there are some regional courts, such as the European Court of Human Rights, such courts do not have global international jurisdiction and can only rule in cases arising from the actions of nations who are part of the specific regional agreement. The result is that while IHRL is law for many nations of the world, its enforcement remains largely aspirational. A question that frequently arises is, can IHRL and IHL be in effect at the same time? Put another way, once an armed conflict starts, does international humanitarian law replace international human rights law? The answer to this question is easy, no, IHL does not replace IHRL. The details are a bit more complicated. IHRL applies in both times of peace and armed conflict. IHL only applies during times of armed conflict. IHRL seeks to protect basic rights, IHL seems to take away some of these rights. While IHRL is more general and vaguely stated, IHL is more specific and detailed. This last point is the key as to which of the two applies. Under the law, when two bodies of law equally apply at the same time, the more specific law controls. This concept is known as lex specialis. When applied in armed conflict, if there is a difference between IHRL and IHL, IHL is the controlling law because it is the more specific law. However, if IHL does not address an issue that IHRL does, then IHRL controls even in armed conflict. For example, in certain security situations in an armed conflict, IHL allows for internment of civilians based on security reasons without criminal charges. This restriction directly contradicts IHRL's right of freedom from arbitrary detention, However, because the provisions of IHL on the conditions of internment are more specific than the general provisions of IHRL granting freedom from arbitrary detention, IHL controls. And provided the requirements of the provisions of IHL are met, the person can be interned. Despite sharing similar-sounding names and working towards a common goal of protecting individuals, international human rights law and international humanitarian law remain separate but linked and overlapping bodies of international law, each working in their own way towards ensuring human dignity in both peace and armed conflict.