The 3 pillars of justice

International humanitarian law, refugee law and human rights law are complementary normative bodies that share a common objective, the protection of life, health and dignity of people. They form a complex web of complementary protections and it is essential that we understand how they interact.
It is a set of rules that seek, for humanitarian reasons, to limit the effects of the armed conflict. It protects people who do not or no longer take part in hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.

The law applies to armed conflicts. It does not regulate whether a State can effectively use force; this is governed by an important but distinct part of international law set out in the Charter of the United Nations.

While IHL only applies in times of armed conflict, human rights law applies at all times; in times of peace and in times of armed conflict. The concurrent application of these two bodies of law has been expressly recognized by several international courts, including the International Court of Justice, the UN Human Rights Committee, the European Court of Human Rights, the Inter-American Commission on Human Rights and, by course, numerous national courts.

What is required in most cases – to improve the situation of people affected by armed conflict – is greater compliance with the existing legal framework, not the adoption of new rules. It can be said with some certainty that if all parties involved showed perfect respect for humanitarian law, most of the humanitarian issues before us would not exist. Therefore, all attempts to strengthen humanitarian law must be based on the existing legal framework.

In this regard, it should be recalled that strengthening the legal framework applicable to armed conflicts also requires that other relevant legal regimes, in addition to humanitarian law, be taken into consideration. It is essential that any development or clarification of humanitarian law avoid any unnecessary overlap with existing human rights law.

Any risk of undermining these rules must be avoided. However, one essential fact must always be kept in mind: humanitarian law must be respected in all circumstances, while some provisions of human rights law are allowed to be derogated from during emergencies. Therefore, the codification of humanitarian law can help avoid loopholes in practice.

Implementation and redress for victims of violations is another area where urgent legal development is required. Insufficient respect for the applicable norms is the main cause of suffering during armed conflicts.

The scope of application of the two legal bodies is slightly different. International humanitarian law binds all actors in armed conflicts: States, organized armed zones and individuals.
Human rights law, on the other hand, establishes rules that regulate states in their relations with individuals.
While there is a growing body of opinion that organized armed groups, particularly if they exercise government-like functions, must also respect human rights, the issue remains unresolved. Although individuals do not have specific obligations under human rights law, the most serious violations of human rights, such as genocide, crimes against humanity and torture, are criminalized under international law and are often offenses under national criminal law.
International humanitarian law may be vague or silent on particular issues, in which case it is appropriate to turn to human rights law for guidance in interpreting the rules in question.

This is most notable in relation to fair trial provisions, where international humanitarian law contains only general provisions, such as a reference to the right to “judicial guarantees recognized as indispensable by civilized people”. The precise content of such guarantees can be deduced from human rights law. Human rights law is also an important source of norms and protection in non-international armed conflicts, where the norms of international humanitarian law treaties are scarce.

Since the law is lex specialis or the law that governs a specific matter, the human rights norm must be interpreted through the prism of international humanitarian law.

What I mean by this? The right to life can serve as an example. What constitutes “unlawful killing” in situations of armed conflict must be assessed on the basis of the relevant rules of international humanitarian law, including the fact that combatants or others taking a direct part in hostilities may be targeted, including with lethal force; and that the killing of civilians cannot be prohibited in certain circumstances. May be allowable “collateral damage.” The legality of such killings must be assessed in accordance with the proportionality principle of international humanitarian law, which requires weighing the incidental loss of civilian life or injury to civilians against the concrete and direct military advantage expected from a particular attack.

Armed conflict and international humanitarian law are relevant to refugee law and refugee protection in several ways.

First, to determine who is a refugee. Many asylum seekers are people fleeing armed conflict and often violations of international humanitarian law. Does this make them refugees? Not all people fleeing armed conflict automatically fall within the definition of the 1951 Refugee Convention, which sets out a limited list of grounds for persecution. While there may be situations, especially in conflicts with an ethnic dimension, where people flee for fear of being persecuted for their “race, religion, nationality or membership of a particular social group”.

In addition, states that are not party to these regional instruments have developed a variety of legislative and administrative measures, such as the notion of “temporary protection”, for example, to extend protection to people fleeing armed conflict.

A second point of interface between IHL and refugee law relates to issues of exclusion. Violations of certain provisions of international humanitarian law are war crimes and their commission may exclude a particular person from the right to protection as a refugee.

If respected, the law operates to prevent the displacement of civilians and ensure their protection during displacement, should they be displaced.
There should be the creation of a cornerstone of refugee law as part of international humanitarian law and human rights law to prohibit torture in particular.
No one should be transferred to a place where there is a risk of torture or other forms of ill-treatment.

My last note would be this; the ICRC or the International Committee of the Red Cross must regularly train people in international humanitarian law and refugee law for the continued protection of life, liberty and human rights.