International Humanitarian Law and International Human Rights Law are so intertwined that it is quite essential to give a brief overview of their commonalities and differences so that one can distinguish the salient feature of each. What therefore becomes of much interest to us in this discussion is the question about how they differ since there are many things they share in common.
One of the major and important goals of the United Nations is the promotion of human rights and their observance by Member States. The Universal Declaration of Human Rights of 10 December 1948, the two International Covenants of 16 December 1966, one on Civil and Political rights, the other on Economic, Social and Cultural rights, and other treaties on specific aspects of human rights protection are the results to date of a major effort to strengthen the position of the individual in the face of State power.
Regional human rights agreements complete the picture of the efforts of affording safeguard to these fundamental rights. Human rights agreements and the relevant rules of customary law are also the ones intended to safeguard a series of individual rights from State abuse. The very important nature common to all those safeguards is that they are valid in all circumstances, at all times. Only in emergency situations and in strictly defined circumstances, known as situations of public emergency, do the different agreements allow for derogations from some of their provisions.
The treaties of humanitarian law, on the other hand, protect particularly vulnerable categories of persons from abuse of state power. Unlike human rights agreements which contain general rules applicable at all times, the protective rules and mechanisms of international humanitarian law are applicable only in time of war. That means, the application of international humanitarian law presupposes the occurrence of armed conflict and this makes its application to be limited to this exceptional circumstance. In this sense, it can be stated that international humanitarian law is that part of human rights law which is applicable in armed conflicts. In contrast, however, to the human rights or also referred to as named peacetime agreements, there can be no derogation under any circumstances from any of its provisions and will apply in almost all circumstances.
A further specificity of international humanitarian law is the fact that its provisions govern relations with the enemy. Members of the enemy armed inhabitants of a territory occupied by an enemy power are, for example, protected under the Fourth Geneva Convention, etc. Human rights agreements, however, affect above all the relationships between the authorities and citizens of the same State.
Owing to the fact that they are applied in different circumstances, international humanitarian law has not taken all the basic rights and freedoms guaranteed under human rights agreements and turned them into protective conditions in time of war. The protection of persons deprived of their liberty from torture and other inhuman treatment, for example, can be found in both branches of the law, for it constitutes an absolute right in the true sense of the words. International Humanitarian law does not, however, make provisions for the protection of the freedom of expression or movement, for example, since those freedoms have an entirely different meaning in a bellicose context. On the other hand, the treaties of humanitarian law contain sections which are foreign to human rights texts, such as the rules on the use of weapons.
Another possible difference is that international humanitarian law contains many more rules requiring the individual or the community to act than classic human rights law. This can be seen clearly in the 1864 Geneva Convention, Article 6, Paragraph 1 of which reads as follows: “Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for”. The law of
International humanitarian law is often mentioned in the same breath as refugee law, the provisions of which apply whenever a person flees his homeland seeking protection in another country out of justified fear of persecution. Refugees exist in peacetime and in time of war. The Geneva Conventions contain some provisions which govern the specific situation of refugees in time of war but do not weaken the protection provided under refugee agreements. Moreover, refugees are entitled to the same protection under humanitarian law as other civilians affected by the consequences of hostilities.