Monday, August 2, 2010

Human Rights Law vs International Humanitarian Law

Blogger's Notes:
Commentary of an Academic 
(Copyright @ 2010 by Chester B Cabalza. All Rights Reserved).

Human rights is innate to every person of whatever nationality, creed, and ideology. It is a universal right that is not generally mandated by any constitution since it is innate to any natural and juridical persons. These are rights and freedoms to which all humans are entitled.

In human rights discourse, the human rights law has foundations gauging from the United Nations Charter and the Universal Declaration of Human Rights, adopted by the General Assembly in 1945 and 1948, respectively. This has expanded to encompass specific standards for women, children, persons with disabilities, minorities, migrant workers, and other vulnerable groups who possess rights that protect them from discriminatory practices that had long been common in many societies.

Thus, the UN High Commissioner for Human Rights works to strengthen and coordinate the United Nations efforts for the protection and promotion of all human rights of all persons around the world.

According the CHR Website, the Philippine is a state party to about 23 international human rights instruments under the UN system. Being a State Party means that the Philippine government has the primary responsibility, duty or obligation to comply with all the obligations in the ratified or signed treaties/instruments. Among these instruments are the following core human rights instruments:

 Universal Declaration of Human Rights (UDHR)

 International Covenant on Civil and Political Rights (ICCPR)

 International Covenant on Economic, Social and Cultural Rights (ICESCR)

 Convention on the Rights of the Child (CRC)

 Convention Against Torture (CAT)

 Convention on the Elimination of Discrimination Against Women (CEDAW)

 Convention on the Elimination of Racial Discrimination (CERD)

 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

 UN Declaration on the Right to Development (RTD)

It states further that it is through the observance of these human rights standards that expanding choices and opportunities of the poor and vulnerable sectors of our society could be realized under the development process. The realization of human rights is the goal of all development efforts. Governance manages development. This brings to the fore the importance of consciously and deliberately mainstreaming human rights standards in development and governance.

Form these premises, we can say that violation of human rights in the country impacts right at the very heart of national security.

On the other hand, International Humanitarian Law or (IHL), forms a major part of public international law and comprises the rules which, in times of armed conflict, seek to protect people who are not or are no longer taking part in the hostilities, and to restrict the methods and means of warfare employed.

More precisely, what the International Committee of the Red Cross (ICRC) means by international humanitarian law is that, it is also applicable in armed conflicts through international treaty or customary rules which are specially intended to resolve matters of humanitarian concern arising directly from armed conflicts, whether of an international or non-international nature; for humanitarian reasons those rules restrict the right of the parties to a conflict to use the methods and means of warfare of their choice, and protect people and property affected or liable to be affected by the conflict.

IHL is also known as the law of armed conflicts or law of war that has two branches:

(1) the law of Geneva, which is designed to safeguard military personnel who are no longer taking part in the fighting and people not actively involved in hostilities, i.e. civilians; and

(2) the law of The Hague, which establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means of harming the enemy.

The two distinct concepts of Human Rights and International Humanitarian Law are important to appreciate.

The first concept is an innate right available to all human beings which is a universal concept that is provided by the Universal Declaration of Human Rights (UDHR) where the UDHR is the basic international statement that is inalienable and inviolable rights of human beings. It is the first comprehensive international human rights instrument. The UDHR proclaim two broad categories of rights: (a) civil and political rights; and (b) economic, social and cultural rights. Although, these human rights are subject to limitations, which must be determined by law, only for the purpose of securing due recognition and respect for the rights of others and of the meeting the just requirements of morality, public order, and the general welfare in a democratic society.

For instance, violation of human rights in the Philippines greatly impacts the country’s national security because most of the reported cases lead to serious human rights abuses, extra-judicial killings plus the country’s prison conditions are harsh, thereby; this subject is of a major concern. One of the most controversial examples is the Maguindanao massacre, also known as Ampatuan massacre last November 23, 2009. In most cases, denial of justice through circumvention of the judicial system, cover-up and whitewashing are fervent examples of Philippine human rights violation not to mention the various violations committed against women and children.

The second concept, covers the principle of protection and humane treatment, including protected persons, combatant status, difference between international and non-international armed conflicts, and means and methods of warfare.

For instance, in the case of Kuroda vs Jalandoni, it has been decided and expounded that the International Humanitarian Law has been used to set the binding nature of IHL norms that, “In accordance with the generally accepted principle of international law of the present day including the Hague Convention the Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution.”

To sum it up, International Human Rights Law (IHRL) is applicable both in times of peace and armed conflict; holds accountable only states through their governments; protect human dignity; lethal force is used only if absolutely necessary such as self-defense or defense of others, for example; and permits derogation of some rights during public emergency. Whereas, International Humanitarian Law (IHL) is applicable only in time of armed conflict; holds accountable to all parties to the conflict, including states and non-state actors, as well as individuals; protect human dignity and deals with conduct of hostilities; used of lethal force permitted by military necessity; and absolutely non-derogable.

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