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Discussion: The Intersection of IHL and Human Rights
The relationship between international humanitarian law (IHL) and international human rights law (IHRL) remains a troubled one. While both areas of the law strive to protect the lives, health and dignity of individuals, the two go about it from different angles. IHL has evolved and been designed to solve humanitarian problems arising from international or non-international armed conflicts. IHRL is a set of laws forming the basis by which individuals or groups can expect and/or claim certain behavior or benefits from governments.
Some experts have stated that human rights norms are becoming more restrictive in that they are placing greater constraints on States' freedom to conduct hostilities, preventatively detain individuals of concern, and administer occupied territories. Because of this, some States have pushed back against attempts to extend IHRL into areas traditionally seen as governed by international humanitarian law. Human rights law has historically been viewed as constituting an area of state activity; domestic law governed people and territory within a State's jurisdiction (provided they did not infringe on another State's rights). The law governing the relationship between a State and its nationals was a matter of national law - not of an international character.
At the same time international human rights law was being developed, however, international humanitarian law was being expanded. The concurrent application of both bodies of law has the potential to offer greater protection to the individual, but it can additionally raise many problems. One of the issues is when there is a conflict between the laws. When there is in fact a genuine conflict of norms, one of the norms must prevail.
Dr. Cordula Droge notes in [his] article, "Elective affinities? Human rights and humanitarian law:"
While it would be fairly uncontroversial to assume that for the conduct of hostilities â that is, put simply, battlefield situations â humanitarian law is generally the lex specialis in relation to human rights law, two situations are more problematic: the use of force in non-international armed conflict; and the use of force in situations of occupation, where human rights have an important role to play. Is humanitarian law always the lex specialis in those situations?
Read the following two articles:
- A Short History of International Humanitarian Law by Amanda AlexanderLinks to an external site.
- Elective affinities? Human rights and humanitarian law by Cordula DroegeLinks to an external site.
- What law controls in situations of non-international armed conflict and in the use of force in situations of occupation?
- Do you agree with Dr. Droge's conclusion?
- Why or why not?
- What are the benefits and possible issues with your solution?
- Does your answer change if human rights law is viewed as customary law?
- Why or why not?
Discuss and interact regularly with your classmates, bringing the discussion to a close by the end of Module 6 and please review and follow the Discussion Guidelines.
Refer to the Discussion Rubric for detailed grading criteria.