Abstract
International Humanitarian Law (IHL) and Human Rights play pivotal roles in safeguarding individual’s rights and preserving their dignity. Despite their shared goal of protecting human well-being, misconceptions often blur the distinctions between the two. This article aims to clarify these differences and shed light on the International Criminal Court’s (ICC) role in implementing humanitarian law.
In conflicts involving nations like Russia-Ukraine and Israel-Palestine, human rights violations are unfortunately prevalent. Civilians bear the brunt, of facing displacement, violence, and deprivation. Analyzing these instances reveals the urgent need for reforms in humanitarian law. One proposed reform involves humanizing the law further, aligning it more closely with human
rights principles. This shift aims to enhance the protection of individuals in conflict zones, emphasizing the importance of preserving their basic rights even amid the chaos of war. By addressing these issues, the international community can contribute to a more comprehensive and effective legal framework that not only distinguishes between IHL and human rights but also actively prioritizes the well-being of individuals in conflict zones, fostering a more just and humane global society.
Humanitarian Laws & Human Rights and Its Development
International Humanitarian Law is a body of regulations that aims to mitigate the negative impacts of armed conflict for humanitarian purposes. It limits the instruments and methods of combat while safeguarding those who choose not to involve themselves in hostilities. It is also known as the law of armed conflict or the law of war. It acts as, an instrument involving regulations which control relations between States. It aims at striking a balance between humanitarian concerns and military requirements of States so that neither gets compromised. The Geneva Conventions of 1949, which is just an extension of the convention of 1929, comprise a significant portion of IHL and it has been agreed by almost every state in the world to be bound by it. Apart from it, The Hague Conferences of 1899 and 1907, focused on arms control and assisted further in the cause of developing humanitarian laws. One thing to notice is that IHL applies only to armed conflict and it does not cover internal tensions or disturbances such as isolated acts of violence. It is applicable only once the conflict has begun and is applied equally to all the parties involved in the war. It prevents harm caused to certain categories such as civilians, children, old age people, prisoners of war, etc. The idea being that it is prohibited to kill or cause harm to anyone and everyone who surrenders or is unable to fight.
Human rights law on the other hand is applicable even during peacetime and few of its provisions may be suspended during war time including armed conflict. It was first adopted through the Universal Declaration of Human Rights (UDHR) by the UN General Assembly in 1948. Such rights are universal and inalienable to society; examples of this include the right to life, food, education, work, health, and many more.
Enforcing Agency: ICC
International Criminal Court (ICC) is an intergovernmental organization set up in the year 2002 in The Hague, Netherlands. Its jurisdiction provides it the authority to prosecute individuals committing (but not limited to) War Crimes. It aims at holding offenders responsible and accountable for their crimes and to deter and prevent future occurrences of such acts. It has two
working languages, English and French. Although it has high ambitions, some scholars feel that the root cause of ICC is still unachieved and likely to stay the same due to various reasons including the non-participation by major world leaders such as India, USA, Russia & China. Moreover, recent global issues including the Russia-Ukraine and Israel-Palestine war has highlighted the incapability of ICC in deterring war crimes and aptly prosecuting the offenders.
Relevance and Violation
The Russia-Ukraine conflict started in February 2022 and has been a continuous act of IHL and human rights violations. The International Criminal Court (ICC) has opened an investigation in the matter. There is a good reason to think that the seized Crimea and eastern Ukraine have been the site of numerous war crimes and crimes against humanity that are under the jurisdiction of the Court. This was announced by Fatou Bensouda, the former prosecutor. As stated by President Zelensky on a public platform, all acts committed by Russia were a direct attack on humanity and qualified as genocide. Various sexual offences, repeated rape cases, summary execution, torture against children, women and elderly have been reported.
Similar incidents have been reported from the recent conflict involving Israel & Gaza. The disputed-occupied area has witnessed a series of human rights violations including unlawful detentions, demolition of houses, etc. Although the official authorities have been unsuccessful in taking effective measures in order to investigate the alleged torture incidents, the on-ground reality is far more severe than the media attention it gets. In such circumstances, the human rights associations have worked comparatively better in providing assistance to the victims by increasing accessibility to public services, removing roadblocks and obtaining compensations for victims.
These latest incidents show us that human rights are completely violated in scenarios involving war-like situations and few incidents portraying how they have been violated. The main motive of the wrongdoers was to sow terror among civilians. Such violation is needed to be protected by effective implementation of IHL and Human Rights law.
Challenges and Reforms
Humanitarian Laws & Human Rights laws have few challenges that need to be resolved. It includes the incapability of IHL in dealing with terrorism. For instance, Afghanistan faced various terrorism-related acts but ICC failed to take sufficient measures to prevent such mishaps, whereas, when Russia did similar violations, ICC quickly recognized its duty and took the responsibility of acting as the authoritative agency. Enhancing the applicability of laws contributes to a more effective deterrent against future
crimes and their perpetrators. This may be done by making laws easily accessible to the public, as well as by including clarity and specificity in the laws. Also, such laws should be adaptable to changing societal norms and challenges. Moreover, unbiased and fair enforcement would be instrumental in achieving this objective.
Another good reform might be to not restrict the ambit of IHL to only times of armed conflict. IHL grants protection to specific categories such as ‘protected civilians’. Protected civilians are people who are not combatants and are granted basic rights. IHL protects these people only during a time of armed conflict but falls short when the same violations take place while the country is not in a conflict. Here, conflict refers to a situation in which a state has started to use armed force against another state or group of states. For instance, in Afghanistan, the war has stopped and the Taliban is acting as the government. IHL cannot be applied as there is no on- going war between two countries, although basic rights (particularly of women) are still being violated. These violations may be stopped if the ambit of IHL is expanded and human rights are included in them, eventually expanding its horizon from not just war time situations but to a tyrannical rule too. Although they both aim to put into force protective measures for the benefit of conflicting nations, there exists a significant gap among them.
There is a lack of logical justification for allowing a state to perform certain arbitrary actions during a crisis that doesn't escalate to internal armed conflict, as the state should not be granted permission to engage in conduct forbidden during peacetime or in more dire conditions like civil war. To bridge this gap, initiatives such as the Turku Declaration have emerged, seeking to
establish non-derogable standards. These standards aim to create a coherent framework guiding state behavior during emergencies, ensuring a balance between crisis response and the preservation of fundamental rights. By widening the scope of IHL, its jurisdictional authority could be made wider and they would be able to implement it in a more efficient manner.
Conclusion
Since this body of laws is applicable during situations involving high violence, it will always be extremely difficult to put the law into practice. Nevertheless, the need to pursue effective compliance is still significantly apparent. The intertwined realms of IHL and human rights law are pivotal frameworks in alleviating the impact of armed conflicts and safeguarding fundamental rights.
The establishment of the International Criminal Court (ICC) is a significant step towards holding perpetrators accountable, though its effectiveness faces hurdles. Recent conflicts, such as the Russia-Ukraine and Israel-Palestine disputes, highlight the urgent need for robust enforcement mechanisms. Comprehensive reforms are essential. Enhancing accessibility, clarity, and adaptability of these laws is crucial, with collaboration between national authorities and international bodies like the ICC bridging enforcement gaps. Integrating human rights laws into IHL creates a more cohesive framework, extending protection beyond armed conflicts to crisis situations, as IHL is governed by an authoritative agency i.e. ICC, whereas human rights violations are generally not given due attention as it has no international body of governance to look into the matter of its violation which are not related to war but involves acts that violate human rights like, the violation of women rights in Taliban-governed Afghanistan. In navigating our evolving global landscape, these reforms are vital to fortify international legal frameworks, ensuring the mitigation of armed conflict impact and the protection of individual rights. Only through concerted efforts to address challenges and implement meaningful reforms can we aspire to create a world where the devastating impact of armed conflicts is reduced, and the rights of all individuals are safeguarded.
