Summary: Working Group on Human Rights and Humanitarian Law

How to strengthen complementarities and cooperation between human rights and humanitarian law

In this session of the working group on human rights, the relations between human rights law and humanitarian law were examined, with a special focus on how NGOs can contribute to the implementation of both legal systems.

Ms. Louise Doswald-Beck of the International Commission of Jurists (ICJ) started her speech by illustrating the differences and similarities between human rights law (HL) and international humanitarian law (IHL). While humanitarian law is always international in its scope, and most of it is recognized as customary law, in human rights law there are regional as well as international instruments, and customary law cannot always be invoked as it depends very much on the region. However, there is significant overlapping between the two systems. Ms. Doswald-Beck particularly stressed the fact that international law in general is the result of political interest, and human rights and humanitarian law should not be considered exceptions in this respect. It is important to keep in mind that humanitarian law necessarily balances military interest and humanitarian concerns, and is the result of negotiations between states. She also illustrated the main problem areas in humanitarian law, such as the lack of treaty law regarding non-international armed conflict, and in human rights law, such as the fact that economic and social rights are taken less seriously than first generation rights.

Regarding the implementation of HR law and IHL, NGOs can play an important role by putting pressure on governments, promoting education and training, and providing information on violations. Finally, she looked at how different organizations can cooperate to implement HR law and IHL, evidencing different modes of action:

• DENUNCIATION of violations to mobilize public opinion; PERSUASION of governments to change their policies; and
• SUBSTITUTION, acting where governments are unable or unwilling to act. By specializing in one of these modes of action, NGOs can complement each other in an effective way.

Mr. Bjorn Peterson of the Norwegian Refugee Council then focused on the protection of Internally Displaced Persons (IDP) and illustrated the UN Guiding Principles on Internal Displacement, a non-binding instrument derived from human rights law, humanitarian law and refugee law. The non-binding nature of the instrument was kept because of the length and difficulty of creating a new treaty and because many rules it contains were implicitly already included in treaty law. The advantage of such an instrument is that it provides a clear and comprehensive protection of IDPs, filling many gaps present in treaty law.

Mr. Ed Schenkenberger of the International Council of Voluntary Agencies then briefly talked about the practical application of HR law and IHL, particularly by humanitarian organizations. The main problem in this respect is that in the last decade the protection of civilians has been neglected and eroded, as the international community puts the emphasis on providing aid, relief and assistance rather than protection. The dilemma that humanitarian organizations must face is that often the governments who allow them to work within their state are the self-same people that violate the civilians' rights.

Interesting questions
One participant asked whether there is an internationally recognized distinction between combatants and non-combatants in humanitarian law. Louise Doswald-Beck acknowledged that this is a difficult issue particularly in civil conflict, where many people are involved in conflict without really being combatants. The only guidelines in humanitarian and customary law consist in the prohibition of targeting civilians during conflict, and unfortunately no progress has been made so far in defining civilians or non-combatants.

Conclusions
Humanitarian law is applicable only in times of conflict, although it also has rules regarding prevention (before conflict) and the punishment of perpetrators of war crimes (after conflict), while human rights law is applicable all the time, although certain rights can be restricted in times of war. Thus, they are complementary, but also significantly overlap.

Presenters' Documents Available

17.15_doswald_louise.doc (28 K)
17.15_pettersen_bjorn.doc (22 K)

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