Introduction to Human Rights Week 2: The internationalization of Human Rights IV. The precursors: International humanitarian law Interview with Gloria Gaggioli We are at the international museum of the ICRC. I am here with Gloria Gaggioli. Hello. Hello, Gloria. You are Legal Adviser at the ICRC and you also holds a PhD of the Law Faculty of the University of Geneva. You wrote your PhD thesis on ‘The Reciprocal Influence between Human Rights Law and Humanitarian Law in the Light of the Right to Life’. You are therefore more than familiar with the two fields of Human Rights and international humanitarian law. I am pleased that you have accepted to answer a few questions. Thank you for the invitation. My pleasure. The first question I would like to ask you is: What do we mean by international humanitarian law? International humanitarian law, which is also called IHL or law of war and law of armed conflicts, is actually a part of international law. This part contains rules which aim to find a solution to humanitarian problems that can be encountered in national or international armed conflicts. So, international humanitarian law must not be mistaken with what we call jus ad bellum. That is to say that it does not regulate the conditions in which States can go to war. On the contrary, it tries to bring a little bit of humanity into war. We distinguish different fields of international humanitarian law: there is the law of the Geneva Conventions and the law of the Haye Coventions. The Geneva treaties provide protection to the victims of armed conflicts. What do we mean by victims? They can be civilians, but they can also be wounded or sick soldiers or prisoners of war. On the other hand, the law of the Haye Convention regulates the methods and means of war. There are a whole range of forbidden methods during armed conflicts. For example, it is forbidden by international humanitarian law to attack civilians. Each attack must be directed against military objectives. Some means of war are also forbidden. Weapons are means of war. We can for example think of chemical or biological weapons. These weapons are completely forbidden. Now, as regards of the sources of international humanitarian law: there are conventional and customary sources. Among the conventional sources, the most famous ones are the Geneva Conventions and the additional protocols of which we have a few copies here. It is a bit like the bible of international humanitarian law. There are also customary rules. These rules are not written down but they can be found via the practice of States which is accepted as legally binding these States. Finally, I would say that international humanitarian law is often regarded as a compromise between two major principles: the principle of military necessity and the principle of humanity. The principle of military necessity means that the measures that are going to be taken by the belligerents in armed conflicts are only the measures which conform to international humanitarian law and which are necessary to reach the objectives of war. These objectives are total or partial submission of the enemy. The principle of humanity means that it is not necessary to inflict suffering, harm or destruction which are going to go beyond the objective of war. In this course, we have mainly been dealing with international humanitarian law as a precursor of Human Rights. Could you comment on this? How did international humanitarian law prepare the ground for the emergence of Human Rights? It is a complicated question. In my view, international law is a precursor of Human Rights for two reasons, probably because international humanitarian law dates back much further than international human rights law. We must remember that international humanitarian law is one of the first fields of international law. Hugo Grotius, one of the founders of international law was already interested in international humanitarian law. Indeed, all people went to war and they needed rules in order to regulate the game, in quotation marks. So, chronologically speaking, it is a precursor. But it is also a precursor because there are a number of common rules between international humanitarian law and international human rights law. This is because these two fields of international law have a common objective which is the protection of life, of safety and of human dignity. So, the protection of human beings is really at the centre of these two fields of international law. This is a major common point. If we take for example Article 3 which is common to the four Geneva Conventions, we will find a whole range of elementary protections that we will also find in Human Rights. There is for example the protection of the life of people who do not directly take part in the hostilities anymore. There is also the prohibition against torture, cruel and degrading treatments. You can also find the prohibition of convictions following an unfair trial. The prohibition of discrimination, too. In the end, all these rights that are part of today's Human Rights were already included in the Geneva Conventions and the Additional Protocols even before the emergence of the first treaties of international human rights law. So, I would say: precursor, yes, but it is however important to remember that Human Rights and international humanitarian law remain two different fields of law. They developed during different time periods and also in different spheres. If we have a look at international humanitarian law, we see that this law was created by soldiers and for soldiers. A good example of that is the Lieber Code from 1863 which was developed by Professor Lieber with soldiers of the time to give instructions to armed forces during the American Civil War. The Lieber Code was then proclaimed by President Lincoln. It shows that international humanitarian law was forged by soldiers. International humanitarian law was then codified in the 19th century within the international movement of the Red Cross and the Red Crescent, of which Henri Dunant is one of the founders. Henri Dunant wrote "A Memory of Solferino" from which the development of the international movement of the Red Cross and the first humanitarian law treaties started. Human Rights have a different origin. Human Rights developed further to Enlightenment. Finally, the emergence of Human Rights treaties appeared in the 20th century, after World War II and in the United Nations' sphere. As you mentioned, international humanitarian law and Human Rights are considered today as two different areas of law. You have also mentioned the resemblances and the differences between the two fields of the law. Could you tell us a few more words on this subject? Yes, there are indeed a set of resemblances and differences. We have already mentioned a few resemblances but I would also highlight the fundamental objective of Human Rights and international law which is the protection of life and dignity of human beings. We can therefore say that the principle of humanity is really the common point between these two areas of law. But there are also a great deal of differences between these two fields. For example, a set of differences can be observed when we have a look at the scope of international humanitarian law and of Human Rights. I am going to take three examples. First, the situational scope. International humanitarian law only applies in national or international armed conflicts. International armed conflicts oppose one or more States. They can also be wars of national liberation, whereas national armed conflicts oppose either a State to a non-State organized armed group or to several non-State organized armed groups or such groups to each others. On the other hand, Human Rights apply to all situations: in times of peace but also in situations of violence, whether there are internal disorders or internal tensions, and in times of armed conflicts. So, Human Rights apply to all situations. It is of course subject to derogations when there is a threat to the life of the nation. This is why we have a major difference in the situational scope between the two fields of law. Let us now have a look at the personal scope. The entities which are bound by these two fields of law are also different. In international humanitarian law, the bound entities are all belligerent parts, no matter whether they are States or non-State armed groups. On the other hand, the State is the main actor in Human Rights. Therefore, it is the State, and not the non-State actors, which has obligations in terms of Human Rights. There are of course some exceptions. For example, an armed non-State group has government functions when it exercises territorial control. In this case, the group has responsibilities in terms of Human Rights but it is not a question of rights as such. The third and last example is the material scope. We saw earlier in Article 3 common to the Geneva Conventions that some rights are common to Human Rights and to international humanitarian law. This is for example the case of the prohibition of torture. Nevertheless, there are also a whole range of completely different rights. In international humanitarian law, there are for instance all the rules concerning the conduct of hostilities. Such rules do not exist in international human rights law. The same is true for the rules concerning the Red Cross emblem. When do we use the Red Cross? Many rules related with combatant status or prisoner of war status do not exist in international human rights law. The same is true for Human Rights. Freedom of speech, freedom of association, and the right to vote are for example typical of Human Rights. You won't find these rights in international humanitarian law. The examples you gave illustrate the resemblances and the differences between the two areas of law. The following question is central to your PhD thesis: how can we define more broadly the relation between international humanitarian law and Human Rights? The first thing I would say regarding the relation between Human Rights and international humanitarian law is that they are two complementary areas of international law. They are complementary in several ways. First of all, we saw that international humanitarian law only applies in times of armed conflict. This means that we need international human rights law in all other situations in which the violence does not reach the level of armed conflict. International human rights law will also apply in times of peace. There is therefore a complementarity in this regard. But the complementarity also exists within armed conflicts. International human rights law can profitably complete international humanitarian law in times of armed conflict. This is for example the case through economic, social and cultural rights; the right to water; the right to adequate food. These rights will be relevant in situations such as a military occupation or a national non-State armed conflict. Then, there are some common rights between Human Rights and international humanitarian law. It is for example the case of the prohibition of torture and the right to a fair trial. In this case, Human Rights' numerous supervising bodies will allow interpretation of these identical terms and rights into international humanitarian law. This is why there is a major complementarity. The International Court of Justice also took action on the relation between Human Rights and international humanitarian law. In this respect, the main opinion is the one on the Legality of the Threat or Use of Nuclear Weapons opinion from 1996. In this opinion, the International Court of Justice stressed that international humanitarian law forms a lex specialis - a particular law - in comparison to international human rights law. What does it mean? Well, there are some controversies around the term of lex specialis in comparison to international humanitarian law. In any case, this stresses the fact that international humanitarian law is the main law applicable in times of armed conflict because it has been especially created to govern the exceptional situations that armed conflicts are. However, this does not mean that the International Court of Justice has excluded the relevance of international human rights law. On the contrary, the Court has interpreted international humanitarian law in the light of Human Rights. The Court proved in many subsequent cases that Human Rights applied in times of armed conflicts and that they completed the protection offered by international humanitarian law. You mentioned that the opinions are sometimes debated. What are the relations between these two parts of the law in a very concrete example such as the fight against terrorism? In this example, we have really seen a controversial matter. So, when States take measures to fight against terrorism, are they tied to Human Rights or to international humanitarian law? And how do these two fields of the law interact with each others? Well, the answer to this question must be qualified. Indeed, everything will depend on the situation. States can take a set of measures to fight against terrorism. Some of these measures will be taken in times of peace. States can for example freeze the assets of those who are suspected terrorists. States might capture, arrest, institute criminal proceedings and detain these people. There are all measures to ensure law and order. These measures are covered by international human rights law and by national law. But they are not covered by international humanitarian law. However, the fight against terrorism can lead to an armed conflict. Let us take the example of 11 September 2001 which was a major terrorist attack. The United States of America were the victims of this terrorist attack. They reacted by going to war with Afghanistan which was under the Taliban regime. It was an international armed conflict between, on the one side, the United States of America and the Taliban's Afghanistan, on the other side. This armed conflict was governed by the rules of international humanitarian law. These rules are notably the Geneva Conventions. The people who were captured in this armed conflict needed to be protected by the rules of international humanitarian law. It could concern the prisoners of war who were regular soldiers. It could also concern the rules regarding civil internees. National armed conflicts also exist. There are a whole range of them. In this case, a government in power will face an insurrectional movement - an organized armed group called insurgents. These insurgents will be considered as terrorists. This term is often a political one. This must not make it look as if international humanitarian law does not apply. International humanitarian law is based on facts. The facts must show if there is a sufficient level of intensity of violence between, for example, a State and an organized armed group. The fact that an armed group of insurgents is considered a terrorist by the government does not make any difference. One last point on this question regarding the fight against terrorism: the term of "global war against terrorism" has sometimes be used. Some people pretended that there was a global war against international terrorism. Well, from the ICRC's point of view, such a global war against terrorism does not exist. One would need to look at the situations of violence on an ad hoc basis to see if they correspond to national or to international armed conflicts. This is a legal concept, isn't it? Exactly. You mentioned the ICRC and as soon as we talk about armed conflicts, we hear about the ICRC. Could you tell us in a few words what is the role and the main functions of the ICRC? Well, the ICRC has a key role in terms of international humanitarian law implementation. The ICRC's mandate is linked to the Geneva Conventions and on the Protocols Additional to the Geneva Conventions. The international community wanted to give a mandate to the ICRC in terms of international humanitarian law. The ICRC's activities are various. The ICRC is a neutral, independent and impartial humanitarian organization. Humanitarian activities aim to protect and to assist the victims of armed conflicts and of other situations of violence. Among the protection activities of the International Committee of the Red Cross we can for example mention prisoners' visits. The ICRC sends its delegates around the world in order to open the prison doors to go to meet prisoners and see what their conditions of detention are like and to see how they are treated. Then, the ICRC enters into a confidential dialogue with the authorities. in order to find a concrete solution for the prisoners. This is a very famous type of protection activity of the International Committee of the Red Cross. But we can also think of the restoration of family links. Indeed, families are sometimes separated because of an armed conflict. Children disappear. There is behind you a whole range of cards on which we can see children who have lost their parents because of an armed conflict. Either the children cannot find their parents anymore, or the parents passed away. The ICRC will try to reconnect the children either with their parents or with close relatives who will be able to take care of them. All these activities of restoration of family links are made by the ICRC in cooperation with national Red Cross and Red Crescent societies. The ICRC is also involved in assistance activities. The ICRC is for example going to bring food and health care to the victims of armed conflicts. Finally, the International Committee of the Red Cross works for the promotion, the clarification and the development of international humanitarian law. As Legal Adviser, this is also partly your role, isn't it? That's right. Thank you! It was fascinating to listen to you and we have now quite a global view of humanitarian law. Thank you very much!
