Impact of human rights law
DOI link for Impact of human rights law
Impact of human rights law book
Over time, and especially from the 1960s and holding of the Tehran Conference,6 the separatist approach to international human rights law and LOAC was rejected; it appeared no longer desirable or feasible to consider the legal frameworks as completely foreign to one another. The Tehran Conference discussed at length the application of human rights in times of armed conﬂict and became a decisive event for the relationship between international human rights law and LOAC. In its proclamation it linked the existence of armed conﬂicts with human rights violations, highlighted the impact of conﬂicts on human rights and called upon the international community to react to those situations. At the institutional level during these times, the United Nations and the International Committee of the Red Cross started to show interest in exploring and developing the interplay between the two legal frameworks. While marked differences exist in the scope of application of international human rights law and LOAC, it remains that the disciplines are both applicable in situations of armed conﬂict. As international humanitarian and human rights norms and bodies developed, and the occurrence of non-international armed conﬂict increased, the impact of each ﬁeld on the other became clearer. Their relationship and need for linking them has been acknowledged for decades now. Most experts agree that the disciplines cannot be totally dissociated from one another and there is a desire to see productive interaction between the two ﬁelds of international law. The interaction between international human rights law and LOAC has great practical importance both at the protection and the implementation levels. For example, the applicability of human rights law might affect how and when armed forces resort to lethal force in speciﬁc circumstances. Likewise, how the interplay between the disciplines is construed can affect the legal protection and guarantees given to individuals detained during a conﬂict. The interpretation of the interplay between the disciplines can further determine whether a given state will or will not be found responsible for human rights violations occurring in the context of ﬁghting and on the means of redress that will be available to alleged victims. The existence of these two potentially applicable legal frameworks in a situation of armed conﬂict creates concurrent and sometimes competing protections and obligations. Legal uncertainties in such contexts rarely ensure protection of individuals and can lead to interpretation of the law that risks being impractical on the ground. The discussion has now moved beyond whether human rights law impacts upon the law of armed conﬂict, or if the two disciplines interact. The existence of a relationship between international human rights law and LOAC is now widely accepted. Their concurrent application is at present more or less a fait accompli but there remain debates on the nature of their interaction. This chapter examines four central issues that need to be addressed to assess the impact of human rights law on the law of armed conﬂict and vice versa. It discusses the applicability and extraterritorial applicability of human rights law during armed conﬂict. It highlights certain areas where human rights law and the law of armed conﬂict can inﬂuence each other. It examines how the interplay between the disciplines has been articulated, and provides suggestions on how
5 See Michel-Cyr Djiena Wembou and Daouda Fall, Le Droit International Humanitaire: Théories et Réalités Africaines (L’Harmattan 2000) 66-67; Hector Gros Espiell, ‘Human Rights: Concept and Standards’ in Janusz Symonides (ed), Humanitarian Law and Human Rights (Ashgate 2000) 345, 352; Raúl Emilio Vinuesa, ‘Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law’ (1998) 1 YBIHL 70; Dietrich Schindler, ‘The International Committee of the Red Cross and Human Rights’ (1979) 208 IRRC 3; Draper (n 3) 145.