Conclusion
While international humanitarian law (IHL) applies exclusively in armed conflict (whether international or non-international), human-rights law applies, in principle, at all times, i.e., in peacetime and during armed conflict.
However, unlike IHL, some human- rights treaties permit governments to derogate from certain obligations during public emergencies that threaten the life of the nation. Derogation must, however, be necessary and proportional to the crisis, must not be introduced on a discriminatory basis and must not contravene other rules of international law—including provisions of IHL. Certain human rights can never be derogated from: among them, the right to life, the prohibition against torture or cruel, inhuman or degrading treatment or punishment, the prohibition against slavery and servitude and the prohibition against retroactive criminal laws. IHL aims to protect persons who are not or are no longer taking direct part in hostilities. It protects civilians and combatants hors de combat, such as the wounded, the sick and the shipwrecked or prisoners of war. Human-rights law, developed primarily for peacetime, applies to all persons within the jurisdiction of a State. Unlike IHL, it does not distinguish between combatants and civilians or provide for categories of protected person.
IHL and human-rights law share common substantive rules (such as the prohibition of torture), but they also contain very different provisions. IHL deals with many issues that are outside the purview of human-rights law, such as the status of combatants’ and prisoners of war, the protection of the red cross and red crescent emblems and the legality of specific kinds of weapon. Similarly, human-rights law deals with aspects of life that are not regulated by IHL, such as the freedom of the press, the right to assembly, to vote, to strike and other matters. Furthermore, there are areas that are governed by both IHL and human-rights law, but in different—and sometimes contradictory—ways. This is especially the case for the use of force and detention.
Regarding the use of force, IHL rules on the conduct of hostilities recognize that the use of lethal force is inherent to waging war. This is because the ultimate aim of military operations is to prevail over the enemy’s armed forces. Parties to an armed conflict are, thus, permitted, or at least are not legally barred from, attacking each other’s military objectives, including enemy personnel. Violence directed against those targets is not prohibited by IHL, regardless of whether it is inflicted by a state or a nonstate party to an armed conflict. Acts of violence against civilians and civilian objects—as well as indiscriminate attacks—are, by contrast, unlawful because one of the main purpose of IHL is to spare civilians and civilian objects the effects of hostilities; and under IHL, precautions must be taken in order to minimize civilian losses. Human-rights law was conceived to protect persons from abuse by the state; it regulates, not the conduct of hostilities between parties to a conflict, but the manner in which force may be used in law enforcement. Law enforcement is predicated upon a “capture-rather-than-kill” approach; the use of force must be the last resort for protecting life, when other means are ineffective or without promise of achieving the intended result, and must be strictly proportionate to the legitimate aim to be achieved (e.g., to prevent crime, to effect or assist in the lawful arrest of offenders or suspected offenders, and to maintain public order and security).