The Roman philosopher Cicero said „Silent enim leges inter arma” (In time of war, the law is silent). Today, armed conflicts are heavily regulated by international law. Much of the modern law of armed conflict, also known as international humanitarian law (IHL), is based on human rights principles. In time of war too, there is a right to life (for non-combatants), a prohibition of methods and means of warfare that cause unnecessary suffering, a prohibition of arbitrary deprivation of liberty, a right to a fair trial, a right to humane treatment in detention and prohibitions of discrimination. In addition to these civil and political rights, IHL contains numerous rules aimed at protecting the social, economic and cultural rights of the civilian population, particularly in situations of occupation. As is the case under human rights law, IHL calls for accountability and reparation for perpetrators. International humanitarian law binds all parties to an armed conflict, thereby establishing equality of rights and obligations between governmental and non-governmental parties in the interest of all those who may be affected by their conduct (essentially „horizontal” relationship). (See question 8.) Human rights law explicitly governs the relationship between a State and persons within its territory and/or jurisdiction (essentially „vertical”) and sets out States` obligations towards individuals in a wide range of conduct. Thus, human rights standards are binding only on States, as evidenced by the fact that human rights treaties and other sources of human rights standards do not create legal obligations for non-State armed groups. This is because most such groups are not able to fulfil the full range of human rights obligations because, unlike Governments, they cannot fulfil the functions on which the implementation of human rights standards is based. There is one notable exception to this generalization of non-State armed groups: cases where a group, usually because of stable control of territory, has the capacity to act as a State authority, and thus its responsibility for human rights may be recognized de facto. IHL and international human rights law are complementary bodies of international law that share some of the same objectives.

Both IHL and human rights law aim to protect the life, health and dignity of people, albeit from different angles – which is why some rules, although formulated very differently, are essentially similar. For example, both IHL and human rights law prohibit torture and cruel treatment, prescribe fundamental rights for those facing criminal proceedings, prohibit discrimination, contain provisions to protect women and children, and regulate aspects of the right to food and health. However, there are important differences between them: their origin, scope, the organisms they implement, etc. What are the similarities and differences between international humanitarian law (IHL) and international human rights law (IHL)? This document from the International Committee of the Red Cross (ICRC) explains the main principles of IHL and IHL and briefly describes when and how they are applied, who is bound by them and who is protected by them. Both IHL and IHL seek to protect the life, health and dignity of the individual, albeit from a different perspective. Dr. Noëlle Quénivet and Dr. Aurel Sari are currently working on a research project funded by the British Academy that investigates the impact of international human rights law, in particular the European Convention on Human Rights, on military operations abroad. A final area that needs to be addressed here is the relationship between international humanitarian law and international human rights law, as this dichotomy permeates a number of other issues explored in this course, such as the right to life and deprivation of liberty in situations of armed conflict.

The interaction between humanitarian and human rights rules on the use of force and procedural guarantees for internment, at least in international armed conflicts, must be resolved by reference to lex specialis, i.e. the provisions of international humanitarian law designed specifically for these two areas. (See box.) Specific moral dilemmas and legal issues have arisen in the context of military counter-terrorism operations involving children, especially since international humanitarian law and international human rights law require special protection against harm to children. Naturally, attacks on child soldiers arouse many sensitivities, even if they are directly involved in hostilities, whether as combatants or civilians directly participating in hostilities, and pose a very real threat. Provost suggested that the legal situation is likely to be such that, if military necessity requires it and there is no viable alternative, targeting these children should be considered permissible as a last resort. Any attack on children who do not meet this higher and more restrictive standard compared to comparable adults is likely to violate contractual and customary rules that prohibit unnecessary injury and suffering (Provost, 2016). Noëlle Quénivet is Associate Professor of International Law at the Faculty of Economics and Law, University of the West of England, United Kingdom. She is co-editor of two books, one on the relationship between international humanitarian law and human rights law and the other on international law in armed conflict, and is the author of Chapter 61: Special Rules for Women. The origins, whose origins are ancient, were codified in the second half of the 19th century under the influence of Henry Dunant, the founding father of the International Committee of the Red Cross. (See question 6.) Human rights law is a more recent piece of legislation: it has its origins in certain national declarations of human rights influenced by Enlightenment ideas (such as the United States Declaration of Independence of 1776 and the French Declaration of the Rights of Man and of the Citizen of 1789). It was only after the Second World War that human rights became a branch of international law under the auspices of the United Nations.

The Universal Declaration of Human Rights of 1948 defines human rights at the international level for the first time in a non-binding General Assembly resolution.