The Application of Human

Rights in Armed Conflict

BY: Joseph Gideon Cundangan and Phaul Jymwric Tang
THE FUNDAMENTAL PREMISES
OF IHL
THE FUNDAMENTAL PREMISES OF IHL

● International humanitarian law (IHL) is a set of rules that seek to limit the
effects of armed conflict and protect civilians, prisoners of war, and other
non-combatants.
● IHL is also known as jus in bello or laws of war (as opposed to the jus ad
bellum which concerns the law relating to the use of armed force by
states)
Distinction between Combatants
and Non-combatants
Distinction between Combatants and
Non-combatants

● Combatants are individuals who are ● In order to distinguish between

directly participating in hostilities, such as combatants and non-combatants, IHL
members of the armed forces or armed requires that parties to the conflict take all
groups. feasible precautions to minimize harm to
● Non-combatants are individuals who are civilians and other non-combatants.
not directly participating in hostilities, such
as civilians, medical personnel, and
humanitarian workers.
Restricted Targeting of Military
Objects
Restricted Targeting of Military Objects

● International humanitarian law (IHL) imposes strict rules on the targeting of military objects
during armed conflict.
● Military objects are legitimate targets of attack, while civilian objects and individuals must be
protected from attack.
● IHL defines military objectives as objects which by their nature, location, purpose, or use make
an effective contribution to military action and whose total or partial destruction, capture, or
neutralization, in the circumstances ruling at the time, offers a definite military advantage.
Means and Methods of Warfare
are Not Unlimited
Means and Methods of Warfare are Not
Unlimited

● The principle that means and methods of warfare are not unlimited is enshrined in several key
treaties and customary international law, including the 1949 Geneva Conventions and their
Additional Protocols, as well as the 1977 Convention on Certain Conventional Weapons.
● IHL prohibits the use of weapons or methods of warfare that are likely to cause unnecessary
harm or suffering to combatants or civilians.
● The deliberate targeting of civilians, including through acts of terrorism, is a serious violation
of IHL and is considered a war crime.
RIGHTS AND OBLIGATIONS IN
HUMANITARIAN LAW
RIGHTS AND OBLIGATIONS IN
HUMANITARIAN LAW

● IHL permits the parties to an armed conflict to target and kill persons taking a direct part in
hostilities, whereas under international human rights law the right to life is non-derogable,
despite a qualified and highly controversial set of exceptions (for example, abortion and the
death penalty).
● States would find unacceptable a prohibition to kill enemy combatants on the battlefield as
this would render redundant the relevant provisions of the United Nations (UN) Charter relating
to self-defence and the responsibility to protect (R2P), not to mention the rationale for the
formation of professional armies.
HUMANITARIAN LAW AS LEX
SPECIALIS TO HUMAN RIGHTS
LAW
HUMANITARIAN LAW AS LEX SPECIALIS TO
HUMAN RIGHTS LAW

● The humanitarian law as lex specialis to human rights law has a horizontal relationship
between the actors that promulgated the rules of IHL, as well as the authority conferred upon
combatants to employ lethal force against their adversaries, it is generally agreed that human
rights play a distinct role in the operation of IHL.
● It is generally understood that humanitarian law serves as lex specialis to human rights law in
the context of armed conflict.
● Humanitarian law is designed to address the specific challenges and complexities of armed
conflict.
● Human rights law, on the other hand, is a more general framework that applies to all situations
and contexts.
Why Human Rights Bodies Find
the Application of Humanitarian
Law Problematic
Why Human Rights Bodies Find the Application
of Humanitarian Law Problematic

● The two bodies of law, IHL and Human Rights, do not always approach their subject matter in
the same way.
● The approach is not justified as a matter of legal doctrine but by practical considerations.
● the lack of expertise of human rights treaty bodies with other specialist areas of international
law which, coupled with their desire to promote protection, may allow them to render
erroneous results.
Human Rights in Situations of
Military Occupation
Human Rights in Situations of Military
Occupation

● In recent times occupations have arisen by unilateral military action, or as a result of coalition
initiatives supported by the UN Security Council (UNSC)
● Under article 42 of the 1907 Hague Regulations, a territory is considered occupied when it is
actually placed under the authority of the occupying state
● Reason dictates that the lex specialis character of the law of belligerent occupation does not
exclude the application of human rights to the occupied population, so long as such rights are
not detrimental to law and order or violate the occupier’s rights under international law.
● Human rights law applies in occupied territories – and by extension the international human
rights obligations of the occupier – is necessitated by practical considerations.
The Extraterritorial Application of
Human Rights in Occupied
Territories
The Extraterritorial Application of Human
Rights in Occupied Territories

● It has been established that the occupier cannot deny the applicability of its ordinary human
rights obligations to the population of the occupied territory.
● First, the territory in question must be actually occupied, thus excluding parts thereof that are
controlled, or sufficiently resisted, by rebel movements.
● Secondly, the application of human rights by the occupier does not ipso facto entail access to
its national courts, unless this possibility is expressly postulated.
● The human rights obligations of a state are generally owed to all persons on its territory, both
citizens and aliens; they are not owed to persons situated in other states.
The Effective Control Test
The Effective Control Test

● The Effective Control Test is a legal principle used in international human rights law to
determine the responsibility of states for human rights violations committed within their
territory or jurisdiction.
● A state is responsible for human rights violations committed within its jurisdiction if it
exercises effective control over the territory where the violations occurred.
● The ECtHR iterated that the responsibility of a party may be invoked on account of:

(1) acts of its authorities, whether performed within or outside national boundaries, which produce
effects outside its own territory; as well as

(2) ‘when as a consequence of military action – whether lawful or unlawful – it exercises effective
control of an area outside its national territory’.
The Decisive Influence Test
The Decisive Influence Test

● The Decisive Influence Test is a legal principle used in international human rights law to
determine the responsibility of states for human rights violations committed outside their
territory or jurisdiction.
● A state may be held responsible for human rights violations committed outside its jurisdiction
if it exercises decisive influence over the entity that committed the violations. Decisive
influence means that the state has the ability to control the entity's actions and decisions to a
significant extent.
● The responsibility of the principal in respect of acts of its agents is a significant feature of
human rights law – apart from the international law of state responsibility – because it serves
to encompass the violations of the agent within the sphere of human rights obligations
ordinarily applicable to the principal.
The Relevance of the Law to
Battlefield Conditions
The Relevance of the Law to Battlefield Conditions:
Human Physiology in Combat Situations

● IHL does not set intractable standards of behaviour to combatants.

● The two strands of the human body’s nervous system, the sympathetic (SNS) and the
parasympathetic (PNS), ensure a healthy balance under ordinary circumstances. However,
when stressors kick in, such as the prospect of lethal threat, conscious control is replaced by
automation and in particular the SNS mobilises every atom in the human body as a reaction to
the stressor.
● This discussion was intended to shed some light on whether the obligations imposed by IHL
on combatants are realistic in relation to the effects of combat stress.
The Dilution of Humanitarian Law
and Problems in Ensuring
Compliance
The Dilution of Humanitarian Law and
Problems in Ensuring Compliance

● The dilution of IHL through secretive ROE has been demonstrated through a series of leaks
concerning confidential documents that have come to light since 2007 in respect of the US-led
war effort in Iraq
● The ROE were at pains to emphasise compliance with IHL, the risk to the civilian population
from the operations described in the last section is very significant.
Thank You!
References:

Bantekas, I., & Oette, L. (2020).

International Human Rights Law
and Practice. (718 - 750)
Cambridge University Press.