Posted by hpcr on April 25, 2012  |   Comment  |   Subscribe

The question of the degree to which humanitarian actors ought to rely on international human rights law (IHRL), in addition to IHL, is by no means new. It rose to prominence in the humanitarian NGO community in the mid 1990s, and numerous conferences and workshops explored the practical implications for relief work of relying on both human rights and humanitarian principles. The ICRC convened consultations on this issue from 1998 onwards which led to a series of publications and guidelines, including most recently, in 2009, the publication: Professional standards for protection work carried out by humanitarian and human rights actors in armed conflict and other situations of violence.

The fact that the issue continues to present itself, however, and is perceived as “new” or problematic, shows that there is a continuing need for reflection. But in doing so, we should at least proceed on the basis of where previous discussions concluded, or at a minimum be mindful of those conclusions. One key conclusion that has emerged is that the issue is not whether humanitarian actors choose to rely on both IHRL and IHL in their work. Rather, the key issue is whether they understand their work as having a protection component. If they do so, then it is clear that they cannot easily limit their frame of reference to one or other body of law; both will be relevant.

This understanding is explicit in the ICRC definition of protection as encompassing

“…all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law, and refugee law. Human rights and humanitarian organizations must conduct these activities in an impartial manner (not on the basis of race, national or ethnic origin, language or gender).”

In other words, an organisation engaged in humanitarian work may eschew a protection aspect to its work (although the wisdom and viability of such a decision will likely be challenged in particular contexts), but accepting that relief work has a protection aspect necessarily entails reference to both IHL and IHRL for standards to guide that work.

The fact that the issue is still presented as if it were one of choosing one or other body of law as a frame of reference, is unfortunate. It is grounded in several misunderstandings, of IHRL in particular, among the humanitarian community. Let us look at three:

1. Confusing tactics with principles

One source of continuing confusion is that many people tend to conflate a particular body of law, IHRL, with particular tactics used to seek its enforcement – namely the very public ‘name and shame’ technique of classic human rights advocacy, with its focus on identifying perpetrators and demanding accountability. Thus, it is too often and too readily assumed that using IHRL as a frame of reference requires public advocacy and, for example, a preference for justice and accountability as opposed to making deals with warlords. This is wrong. Public advocacy is only one technique, albeit a very visible one, for securing respect for human rights; much can be achieved too with quiet persuasion. Many human rights NGOs spend very little time publishing ‘name and shame’ reports; many are wholly occupied in capacity-building work with local communities or, indeed, with governments. Moreover, accountability issues are not particular to IHRL; IHL similarly includes legal demands for accountability including through the prosecution of those responsible for grave breaches of the Geneva Conventions.

In short, advocacy and protection strategies should be driven by the capacities and context of particular organisations, not by misguided assumptions of what technique is required by a particular body of law.

2. (Mis)-identifying the duty-holders

Second, there is the confusion that results from assuming that IHRL is ill-suited to identifying obligations on armed groups (or “non-state actors”), and that IHL uniquely creates obligations on both states and armed groups. This is an outmoded understanding. While it is true that core international human rights treaties place obligations on states, some of the more recent protocols to these treaties include armed groups within their scope. Furthermore, the notion of “crimes against humanity”, deeply influenced by human rights norms, now clearly encompasses obligations on both states and armed or otherwise organised political groups, including outside the context of an armed conflict. And finally, in numerous cases, armed groups have signed accords wherein they commit themselves to abide by certain human rights principles – accords that have been sponsored and in some cases monitored by the international community. There is a discernible trend in IHRL to extend obligations to all those wielding power and in a position to impact on human rights.

3. Overlap or inconsistency?

Third, there are confusions that emerge from what are perceived as differing levels of protection offered by the distinct bodies of law, IHL and IHRL. On this point, it should be emphasised that only in a few instances is there an actual conflict between what IHL or IHRL requires vis-a-vis the civilian population. Some of the most notorious examples of recent years arise in the context of the “war on terror” and centre on disputes over the classification of prisoners (of war or not?), and their corresponding due process rights, or over the legality of a policy of targeted assassinations. These are important issues, but they are unlikely to be a prominent feature in the work of most humanitarian organisations.

The much more common scenario is that one body of law is silent. For example, IHL has little to say in terms of the core freedoms civilians enjoy (to assemble, to political participation, to organise, to speech, etc) - freedoms that are essential if relief agencies are serious about holding themselves accountable to beneficiary populations. Similarly, only by inference can IHRL be invoked to establish the rights of humanitarian actors – such action enjoys specific and detailed protection in IHL.

The strategy then should be clear – protection work should draw on both bodies of law, and use the rules best tailored to the specific protection being sought. Where there is inconsistency, a simple solution is to rely on the standard that provides the greater protection – a logical position as the ultimate goal of both IHL and IHRL is to promote human dignity.