+1 862 207 3288 “International Humanitarian Law”
Essay Q: What is the relationship between International Human Rights Law and International Humanitarian Law? What should the relationship be?
• Introduction.
Include a brief summary to the whole essay and to the conclusion. Comment 1(Not really – a summary of your main argument and of how you will develop it in the essay (section by section)
• The definition, historical background and development of both international human rights and the IHL. Comment 2 [Please make sure that this part remains quite brief, as it is not the main part. really summarise it.]
Explain the differences and the distinguishing features between the two bodies of Law and that they share a common purpose.
Include the right of life as an example for the differences.
Protection of Civilians in the Light of International Humanitarian Law and Human Rights Law
The toleration of the IHL to the incidental civilian causalities (necessity and proportionality)Comment 3[Yes, these two points are good.]
Targeted killing under Human rights law and IHL Comment 4[You might want to use this as one of the examples for the clash between the two bodies of law (like in Sassoli’s article)? So, it could be moved to the next section? Or to the part on mutual reinforcement?]
• The overlap between the two bodies of law.
Explain the application of human rights law in the situations of armed conflict.Comment 5[Make sure you refer to relevant case law here (ICJ included, but also perhaps ECHR]
The extraterritorial application of human rights.Comment 6 [Here you will definitely need to mention ECHR case law, e.g. Al Skeini]
The reasons for the application of human rights law in armed conflict.
1) The difference in the substantive content of the international human rights; as it is applicable all the time.
2) Non application of IHL (such as: the denial of the states to the existence of armed conflict- the additional pre-requisites for the application of the IHL in the situations of armed conflict such as the requirement of the additional protocol II for the state party to exercise a control over a part of its territory).
3) Duty to investigate the loss of life
4) The enforcement of IHL may include the prosecution of the offenders on a domestic level where the ICJ has a limited jurisdiction Comment 7[did you mean ICC?]
Derogation from human rights in armed conflict
• The relationship between the two bodies of law.
1) Exclusive rights to the IHL
2) Exclusive rights to the IHR
3) Rights that matter for both IHL and IHR
• The principle of lex specialis
lex specialis as modification – lex specialis as application
The complementarity between the two bodies of law (mutual reinforcement)
• Conclusion
The ideal relationship should be acomplementarity relationship between the two bodies of law governed by minimum human standards that represent the fundamental standards of humanity applicable regardless of the situation.Comment 8[I like this outline so far. Where I suggest above that you shift the reference to targeted killing, please see if you agree with the comment. What I meant, is that Sassoli mentions targeted killing and prisoners of war as the two circumstances in which IHRL and IHL really clash. So, you could perhaps include both examples in that part, rather than shifting there somewhere else. Or shift them to the part on complementarity at the end, as examples of how they could complement each other. Anyway, well done so far, just strengthen it by implementing the suggested changes.]
• Sources:
1. Armed Activities On The Territory Of The Congo (Democratic Republic of the Congo v. Uganda) [2005] ICJ Rep 168.
2. Clapham A and Gaeta P (ed), the Oxford Handbook of International Law in Armed Conflict (OUP 2015).
3. Droege C, ‘THE INTERPLAY BETWEEN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW IN SITUATIONS OF ARMED CONFLICT’ (2007) 40(2) Is.L.R 310
4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.
5. Marco Sassoli and Laura M Olson, ‘The Relationship between International Humanitarian Law and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighter in Non-international Armed Conflicts’ (2008) 90 International Review of the Red Cross 599.
6. Milanovic M, ‘Norm Conflicts, International Humanitarian Law and Human Rights Law’ in O Ben-Naftali (ed), Human Rights and International Humanitarian Law: Collected Courses of the Academy of European Law (VOL 19(1), OUP 2010)
7. Müller A, The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law: An Analysis of Health-related Issues in Non-International Armed Conflicts (2nd edn, Brill 2013).
8. Oberleitner G, Human Rights in Armed Conflict: Law, Practice, Policy (CUP 2015)
9. Provost R, International Human Rights and Humanitarian Law (CUP 2002)
10. Sivakumaran S, ‘International Humanitarian Law’ in D Moeckli, S Shah and S Sivakumaran (ed), International Human Rights Law (2nd edn, OUP 2014).
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