Posted by Dustin Lewis on April 17, 2012  |   Comment  |   Subscribe

International human rights law (IHRL) and international humanitarian law (IHL) are often perceived as legally synonymous, aiming to achieve similar objectives through legal protection. Yet while they share important features, these two bodies of law have distinct origins and in many ways constitute distinct projects.

At its core, IHRL seeks to regulate the relationship of the government to its population in order to spur the government to do what is necessary to ensure the safety and well-being of its population while allowing the population to pursue their desires unencumbered by unwarranted government intrusion. IHL — also known as the law of armed conflict — is more limited, applying only during armed conflict and seeking generally to inject a modicum of humanity into wartime by regulating the means and methods of warfare and protecting those not, or no longer, directly participating in hostilities. While IHRL has a fundamental mission of transforming the relationship between the government and the population, IHL aims primarily to limit the effects of hostilities on populations, whether civilians, detainees, the wounded, the sick, or those otherwise hors de combat. In contradistinction to IHRL, IHL continually weighs the humanitarian interests of the population against the interests of parties to armed conflict attempting to achieve their military objectives.

These fundamental distinctions between IHL and IHRL can confuse and confound humanitarians operating in armed conflicts, natural disasters, and other emergency situations. Some of the difficulty may result from the turn by many humanitarian organizations — whose initial ambit was limited to emergency relief amid the tumult of armed conflict — to incorporate (often vague) human rights approaches into their work without identifying the short- and long-term costs and benefits of doing so. Adopting a “dual-hat” approach to humanitarian action, these organizations attempt to combine life-saving assistance alongside building the state’s capacity to promote and protect rights.

Programming that blends humanitarian and human rights objectives is on its face laudable, yet it raises strategic issues for humanitarian policy-makers. As Naz K. Modirzadeh recently argued, the co-application of IHL and IHRL during armed conflict could have significant deleterious effects for civilian protection, including diluting the clarity of IHL, reintroducing a hierarchy of rights, and undermining sovereignty and long-term rights development. Balancing these considerations is one of the many challenges facing humanitarian actors today.