The Interplay Between International Humanitarian Law and International Human Rights Law

Student and Professional Introductions

The session began with a round of introductions from various students and professionals. One student expressed interest in domestic human rights and the intersection with international law, particularly medication law. Jawad Kantel described his long history with the Panasonic independent university mission and his recent work as a researcher for a human rights organization based in the UK, monitoring and documenting violations in Afghanistan. Another student, a Brazilian attorney now in the US, is pursuing an LLM. Mohammad Bendal, who has worked in Afghanistan for more than $40$ years, served as senior staff for a civil rights commission and a coordinator focusing on ISIL torture in prisons and conflicts inside Afghanistan. He has collaborated with the United Nations and other international bodies on investigations. Carla, an LL1 student at AU, has a background in legal academics and professional experience with immigration NGOs, human rights organizations, and the United Nations military affairs department.

Rebecca, an AU law student from Washington, DC, previously worked as a paralegal for $7$ years in immigration law and possesses an undergraduate degree in conflict analysis and resolution. Another student from Mexico, currently in her final year at the Inter American Academy of Human Rights, has specialized in human rights and participated in competitions before the International Criminal Court. Barbara is an immigration attorney based in San Diego and an LLM student interested in International Humanitarian Law (IHL) and its intersection with American immigration law. Sherine Ibrahim, a George Brown graduate from Saudi Arabia, previously worked with the Saudi Human Commission and is studying international business and human rights. Mike Willis, a Lieutenant Colonel in the United States Army and faculty member at WinSEC (formerly the School of the Americas), teaches military doctrine in Spanish to foreign military officers. He highlighted the congressional oversight of WinSEC through the Center for Operational Law, formerly the Center for Human Rights and Democracy, which has taught human rights and IHL for $25$ years.

Public International Law and Its Subjects

International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are two distinct branches of public international law. Public international law primarily regulates the relationships between sovereign states. Historically, states have been the sole subjects of this law, covering areas such as the law of the sea, diplomatic relations, and the right to resort to force. However, IHL transcends this general theory by also regulating relationships between states and non-state armed groups. Specifically, IHL is triggered when a situation amounts to an armed conflict. While IHRL generally binds states vis-a-vis the individuals within their jurisdiction, there is an ongoing scholarly discussion regarding whether non-state armed groups should have human rights obligations, particularly when they exercise de facto control over a territory and perform authority-like functions. This is not yet a defined position in international law, but it marks an area where the separation between the two branches becomes hazy.

Definitions and Overarching Goals of International Humanitarian Law

IHL is a body of rules within public international law that is exclusively applicable during armed conflicts. Its primary design is to limit the effects of armed conflict for humanitarian reasons. All IHL norms can be understood through two main objectives. The first objective is to protect persons who do not participate, or who no longer participate, in hostilities. This includes civilians and those who are "hors de combat" (out of combat), such as the wounded, sick, shipwrecked, prisoners of war, and those who have surrendered. The second objective is to limit the means and methods employed in hostilities. Means refer to the weaponry used, while methods refer to the tactics and how those weapons are deployed.

IHL is categorized as "jus in bello," or the law in war, which governs conduct during an armed conflict. It is strictly separated from "jus ad bellum," which is the law governing the right to resort to force. The legality of the war itself is governed by the Charter of the United Nations. Under Article $2.4$ of the UN Charter, the resort to force by states is generally prohibited. There are two primary exceptions to this prohibition: Article $51$, which allows for individual or collective self-defense, and Chapter VII, which allows the Security Council to authorize the use of force to address threats to peace and security. IHL remains applicable once a conflict begins, regardless of whether the initial resort to force was legal under the UN Charter.

Classification of Armed Conflicts

Classifying a situation as an armed conflict is critical because IHL only applies when such a threshold is met. When no armed conflict exists, the legal framework is comprised of domestic law and International Human Rights Law. Use of force is regulated much differently under IHRL than under IHL. High levels of violence, such as riots or gang activities, may not meet the threshold of an armed conflict. In Latin America, for instance, many countries experience extreme violence that is not classified as an armed conflict, meaning the state must follow law enforcement paradigms rather than the conduct of hostilities paradigm. An exception is Colombia, which has been engaged in non-international armed conflicts (NIAC) for $60$ years. The ICRC currently recognizes at least $8$ distinct non-international armed conflicts in Colombia involving different armed groups.

There is no central international body designated to classify conflicts in real-time. In International Armed Conflicts (IAC), states usually recognize when they are at war with another state. In NIACs, states are often reluctant to recognize the conflict, preferring to label non-state groups as terrorists or criminals to keep the situation under a domestic law enforcement framework. Often, classification happens "ex post facto" (after the fact) by international or domestic courts to determine if war crimes were committed. The International Criminal Court (ICC), established by the Rome Statute, is a permanent body that tries war crimes, while other ad hoc tribunals have been created for specific situations like the former Yugoslavia, Rwanda, and Sierra Leone.

Sources of IHL: Treaty Law and Customary Law

The primary treaty sources for IHL are the four Geneva Conventions of $1949$, which have achieved universal ratification. These were supplemented in $1977$ by Additional Protocol I (applicable to IACs) and Additional Protocol II (applicable to NIACs). Common Article $2$ of the Geneva Conventions applies to IACs (state vs. state), while Common Article $3$ applies to NIACs (state vs. non-state or non-state vs. non-state). Because the written treaty law for NIACs is less detailed than for IACs, Customary International Humanitarian Law plays a vital role. From $1995$ to $2005$, the ICRC conducted an extensive study to identify customary rules based on state practice, such as military manuals and doctrine. This study concluded that many rules originally written for IACs have crystallized into customary law and now apply to NIACs as well.

Fundamental Principles of the Conduct of Hostilities

The use of force in IHL is governed by three fundamental principles: distinction, proportionality, and precautions. The principle of distinction requires that parties always distinguish between civilians and combatants, and between civilian objects and military objectives. Civilians cannot be targeted unless they take up arms and "directly participate in hostilities" (DPH). The ICRC's $2009$ "Interpretive Guidance on Direct Participation in Hostilities" helps define when a civilian loses protection. Military objectives are defined in Article $52(2)$ of Additional Protocol I as objects which by their nature, location, purpose, or use make an effective contribution to military action and whose destruction offers a definite military advantage. A school or hospital, usually a civilian object, can become a military objective if used for military purposes, such as storing weapons.

The principle of proportionality prohibits attacks where the incidental loss of civilian life or damage to civilian objects would be excessive in relation to the concrete and direct military advantage anticipated. IHL acknowledges that "incidental harm" (often called collateral damage) occurs, but it must be balanced. There is no mathematical formula for this; it is a judgment call made by commanders. The film Eye in the Sky illustrates this principle through a scenario involving a high-value target in a house where a drone strike would also kill a nearby little girl selling bread. The principle of precautions requires that even if a target is lawful and the attack is proportional, all feasible measures must be taken to minimize incidental harm, such as choosing the timing of the attack or providing an effective warning.

International Human Rights Law and Law Enforcement

IHRL applies at all times, during both peace and armed conflict. States have the obligation to respect, protect, and fulfill human rights. While some rights can be derogated from during a public emergency, certain rights are non-derogable, including the right to life, the prohibition against torture, and the prohibition of slavery. In situations of violence that do not reach the level of armed conflict, the state's use of force is governed by the law enforcement paradigm. This paradigm is guided by the principles of legality, necessity, proportionality, precaution, and accountability. In law enforcement, the use of force must be an exceptional measure used only when strictly necessary to maintain order or protect lives, and it must be applied at a graduated level using means like batons, tear gas, or tasers before resorting to firearms.

Comparison of Paradoxes: Force in IHL vs. IHRL

The use of force under the IHL "conduct of hostilities" paradigm is fundamentally different from the IHRL "law enforcement" paradigm. In IHL, the objective is to militarily subjugate the enemy, and lethal force is the first option against a lawful target. In law enforcement, the objective is to maintain public order, and lethal force is the last resort. Necessity in law enforcement means force is only used as a last option, whereas military necessity in IHL justifies the use of force to win the war. Proportionality in law enforcement is a balance between the threat and the force used to stop it, whereas in IHL, it is a balance between military gain and incidental civilian loss. During an armed conflict, both frameworks can exist simultaneously. For example, in Colombia, a riot in Bogota would be handled under law enforcement (IHRL), while a battle in the countryside would be handled under the conduct of hostilities (IHL).

Status of Police and Non-State Actors

Police officers are generally considered civilians under IHL and cannot be targeted. However, they lose this protection if they are formally integrated into the armed forces or if they directly participate in hostilities. In NIACs, the status of actors can be complex. In a scenario where a criminal gang shoots at police, it is a law enforcement situation because the gang is not a party to the armed conflict. If members of a non-state armed group are mingling with a civilian crowd during a protest, the ICRC suggests a protective stance, leaning toward the law enforcement paradigm to protect civilians, even if some individuals are lawful targets under IHL. Practical challenges arise for military and police on the ground who cannot easily "switch hats" between paradigms, requiring clear Standard Operating Procedures (SOPs) and diverse equipment like non-lethal weapons.

Questions & Discussion

Question: Regarding the classification of conflict, who determines when a conflict exists if there is no treaty body? Response: There is no single answer. States might recognize it, the ICRC might classify it privately or publicly (as with Colombia), or courts might determine it ex post facto. Historically, states are more likely to recognize state-vs-state conflicts (IACs) than internal ones (NIACs).

Question: Can armed groups have human rights obligations? Response: Generally, IHRL only binds states. However, scholars and the international community are debating whether groups with significant territorial control should also be bound by human rights standards.

Question: In the Eye in the Sky scenario, is killing the girl proportional? Response: This is the core of the proportionality principle. It involves weighing the value of a high-profile target against the life of a child. IHL does not provide a mathematical answer, only the framework for the commander's assessment.

Question: How do police navigate these rules in a country like Colombia? Response: It is extremely difficult. The best approach is to have specific planning and SOPs. Police need a wide array of means (tear gas, batons) so that they are not forced to use lethal firearms in law enforcement situations.