qwertyuiopasdfghjklzxcvbnmqw

ertyuiopasdfghjklzxcvbnmqwert
yuiopasdfghjklzxcvbnmqwertyui
opasdfghjklzxcvbnmqwertyuiopa
sdfghjklzxcvbnmqwertyuiopasdf
ghjklzxcvbnmqwertyuiopasdfghj
klzxcvbnmqwertyuiopasdfghjklz
xcvbnmqwertyuiopasdfghjklzxcv
bnmqwertyuiopasdfghjklzxcvbn
mqwertyuiopasdfghjklzxcvbnmq
wertyuiopasdfghjklzxcvbnmqwer
tyuiopasdfghjklzxcvbnmqwertyui
opasdfghjklzxcvbnmqwertyuiopa
sdfghjklzxcvbnmqwertyuiopasdf
ghjklzxcvbnmqwertyuiopasdfghj
klzxcvbnmqwertyuiopasdfghjklz
xcvbnmrtyuiopasdfghjklzxcvbnm
qwertyuiopasdfghjklzxcvbnmqw
ertyuiopasdfghjklzxcvbnmqwert
yuiopasdfghjklzxcvbnmqwertyui
opasdfghjklzxcvbnmqwertyuiopa
Human Rights and Humanitarian Law: A
Comparative Study
Collected By BdLawSource.com
www.bdlawsource.com
ABBREVIATIOS
CEDAW Committee on the Elimination of All forms of
Discrimination against Women
CERD Committee on the Elimination of All forms of Racial
Discrimination
ICCPR International Coenant on Ciil and Political Rights
ICESCR International Coenant on Economic! Social and Cultural
Rights
IC" International court of "ustice
I#RR International #uman Rights Re$orts
IL% International La&our %rganisation
'D#R 'niersal Declaration of #uman Rights
'( 'nited(ations
www.bdlawsource.com 2
www.bdlawsource.com
COTETS
)itle Page
A&stract *III
Cha$ter + Introduction +
Cha$ter +.+ International #umanitarian law ,
Cha$ter +., Basic Princi$les of International #umanitarian law -
Cha$ter +.. Deelo$ment of International #umanitarian Law /
Cha$ter , #uman Rights ++
Cha$ter ,.+ #istorical Deelo$ment of #uman Rights ++
Cha$ter ,., )reaties +0
Cha$ter . Com$aratie Study +1
Conclusion ,2
Bi&liogra$hy
www.bdlawsource.com 3
www.bdlawsource.com
ABSTRACT
International #umanitarian Law is a new &ranch of international Law of which
much has not yet &een tal3ed or written. #oweer! now4a4days this su&5ect is
receiing 3een attention from the academics in the west. )he $resent study is
an attem$t to focus u$on western contri&utions in this field. International
#umanitarian law refers to international rules! whether of conentional or
customary origin! that resulting from armed conflicts! international or
otherwise. 6)hese rules limit! for humanitarian reasons! the rights of the
$arties to the conflict to use methods and means of warfare $urely of their
own choice! and $rotect the $ersons and o&5ects that are affected or may &e
affected &y the conflict.7
)he growth and e8$ansion of international human rights law has &rought
a&out a radical change in the ideological &ases of international law. Such a
change is first eident in the uniersal ac3nowledgement that gross iolations
of indiidual and collectie rights cannot &e 5ustified on grounds of soereignty
or demotic 5urisdiction.
www.bdlawsource.com 4
www.bdlawsource.com
Chapter !
Introdu"tion
Eer since the dawn of $rimitie society! human &eings antagoni9ed each
other. War is a rot to humanity and inoles most &rutal and ar&itrary
iolence:s. In all ages men hae suffered under the sword and the yo3e.
Des$ite this! some norms or rules were deelo$ed the hoary $ast for the
$ur$ose of limiting the conse;uences of war and to $rotect men against the
eils of war and ar&itrary treatment. "ean Pictet who is recogni9ed as the
father of modern international #umanitarian law a$tly says4
6)he laws of war are as old as war itself and war is as old as life on the
earth7
+
)he laws of war are to &e found in the leading religion! $ractices of warlords!
writings of $hiloso$hers! customary rules of warfare and multilateral treaties
concluded mostly in <enea and the #ague in the +2
th
and ,=
th
centuries.
But the star3 reality shows that armed conflict still e8ist and claim an
increasing num&er of ictims in $articular those who should remain immune
under the law> the ciilian $o$ulation. )o achiee &etter $rotection for those
ictims! I#L must &e &etter 3nown among those who should a$$ly it>
com&atants! $u&lic officials and es$ecially in the growing num&er of situations
where structures of authority hae disintegrated! the whole $o$ulation.
Chapter !#!
Internationa$ Humanitarian $aw
International #umanitarian law forms a ma5or $art of $u&lic International law
and com$rises the rules which in times of armed conflict! see3 to $rotect
$ersons who are not or are no longer ta3ing $art in the hostilities! and to
restrict the methods and means of warfare em$loyed! It is also called the law
of armed conflict. Its traditional name was the law of war.
International #umanitarian law can &e defined as the &ranch of international
law limiting the use of iolence in armed conflicts &y>
?a@ S$aring those who do not or no longer directly $artici$ate in hostilitiesA
1
Jean Pictet, Development and Principles of nternational
!umanitarian law, "
www.bdlawsource.com 5
www.bdlawsource.com
?&@ Limiting the iolence to the amount necessary to achiee the aim of
the conflict! which can &e inde$endently of the causes fought for only
to wea3en the military $otential of the enemy.
According to "ean Pictet 6#umanitarian law is that considera&le $ortion of
international law which is ins$ired &y a feeling for humanity and is centred on
the $rotection of the indiidual in time of war7
International #umanitarian law! which is an emergency law a$$lica&le in
international or non4 international armed conflict! is a &ranch of International
law. (ow4a4days this su&5ect is receiing 3een attention from all e$ochs.
)here is an increasing num&er of writing and analysis on International
#umanitarian law. Recently! seeral e8cellent te8t &oo3s on that matter hae
&een $u&lished in different languages. (ow the $resent study is a little
attem$t to enlighten the discussion on the deelo$ment of I#L! and to
enhance the international humanitarian assistance in the continuance of
armed conflict or war deastated economy. It is $ertinent to mention here
that International #umanitarian law is omni$resent in contem$orary conflict.
But the $roisions of humanitarian conentions ?mainly <enea@ hae no
releance in the contem$orary crisis! rather than there is the $ractice of
&elligerency in Bosoo! Bosnia! Chechnya! Li&eria! Sierra Leone and glaring
e8am$le of Afghanistan and Ira;. )heir ?humanitarian conention@
effectieness or im$lementation is a dismal failure. So! the aims of my
research and analysis is to elucidate the framewor3 of International
#umanitarian law! to esta&lish the legal relationshi$ &etween International
#umanitarian law and InternationalA law of #uman rights and to $oint out the
eolution and deelo$ment of International #umanitarian law and finally to
ealuate the role $layed &y the ICRC in the im$lementation of International
#umanitarian law. So! I would li3e to say that $rior to any o$eration in the
name of international co4o$eration it should com$ly with International
#umanitarian law 5ust to lessen the humanitarian catastro$he and to delier
a&ru$t humanitarian assistance.
www.bdlawsource.com 6
www.bdlawsource.com
Chapter !#%
Basi" &rin"ip$es o' Internationa$ Humanitarian $aw
International #umanitarian law has in $articular uniersal ocation! since it
a$$lies to men and countries. )he humanitarian $rinci$les are common to all
human communities wheneer they may &e. )he main o&5ect of I#L is to
regulate hostilities in order to attenuate their hardshi$s and $rotect the
ciilian from the curse of armed conflict. #umanitarian law has two &ranches!
one &earing the name of <enea and the other the name of )he #ague. )he
&asic $rinci$les of I#L are as follows>
i@ )he distinction &etween ciilians and com&atantsA
ii@ )he $rohi&ition to attac3 those hors de-combatA
iii@ )he $rohi&ition to launch attac3s against the ciilianA
i@ )he $rohi&ition to inflict unnecessary sufferingA
@ Protections of the $risoners of warA
i@ )he $rinci$le of necessityA
ii@ Protection of the wounded! sic3 and shi$wrec3ed $ersonsA
iii@ )he $rinci$le of $ro$ortionalityA
www.bdlawsource.com 7
www.bdlawsource.com
Chapter !#(
)eve$opment o' Internationa$ Humanitarian Law
)he deelo$ment of I#L is not really a su&5ect of today! if we loo3 &ac3 to the
ancient $eriod! it will &e eident that the ancient ciili9ation $articularly <ree3
and Roman Ciili9ation $layed a ery significant role in the deelo$ment of
International #umanitarian Law. In this $eriod International #umanitarian Law
was deelo$ed through some stages.
In the ancient $eriod during the continuance of war $eo$le maintained arious
categories of rules which were similar to modern international rules of war>
rules distinguishing ty$es of enemies! rules defining the circumstances!
formalities and authority for &eginning! rules descri&ing limitations of $ersons!
time $lace! and methods etc
,
. )he great <enghis Bhan was famous for his
$owerful and successful army. <enghis Bhan was also famous for his ruthless
efficiency in &attle! or ;uite sim$ly! his ruthlessness.
.
In the ancient $eriod
arious categories of nations maintained their res$ectie rules during the war
time. It is ela&orated &elow>
<rotius did not a&andon the idea of the 5ust war! &ut considered that the
inherent com$etence of the state to wage war was a more im$ortant element
in war than the 5ustice of its causes and regarded was as one of the means of
consering the state. In his famous treatise De jure belli ac pacis he wrote!
6In war we must always hae $eace in mind7 #e was the first to assert that
the Just cause ino3ed &y a state to resort to war did not negate the duty of
the &elligerents to o&sere the laws of war. <rotius &elieed that the
$o$ulation of an aderse country was an enemy! at the mercy of the winner.
At the same time he insisted that iolence &eyond what was necessary for
ictory was not 5ustified. Since iolence is no longer regarded as the
administration of $unishment! it ceases to &e an end in itselfA it &ecomes a
means! to &e used with increasing and measured moderation.In his ma5or
wor3! De 5ure &elli ac $acis! which the Catholic Church 3e$t on the inde8 of
for&idden &oo3s until +C22! <rotius enumerated the Temperament belli which
constitute $art of the most solid foundations of the law of war.
Deelo$ment of scientific S$irit and #umani9ation of War>
2
# study of war, $%&'
3
Md Jahid Hossain Bhuiyan, International Humanitarian Law- An Anthology. P2
www.bdlawsource.com 8
www.bdlawsource.com
)he +1
th
century o$ened the age of enlightenment which among other things
witnessed the &irth of humani9ation! an adanced and rational form of charity
and 5ustice. )he $hiloso$hers refused to consider suffering as a fatality and no
longer acce$ted the doctrine that eery man was res$onsi&le for the misery in
the world. )hey held that all men had e;ual and inaliena&le rights! which it
was the res$onsi&ility of the states to guarantee.
In the +C
th
century war &ecame a struggle &etween $rofessional armies with
smaller num&ers of soldiers. Ciilians were no longer directly inoled!
&ecause the armies had their own su$$ly serices D $illage was for&idden!
war was! in short! under human control. )he humani9ation of war $roceeded
ra$idly at least in Euro$e. In +C1/s! E)reaty of Friendshi$ and Peace: was
arried at &y Frederic3 the <reat and Ben5amin Fran3lin.
)he recurrence of com$ara&le clauses created a erita&le customary law which
may &e summed u$ as follows>
#os$itals shall &e immuni9ed and &e mar3ed &y s$ecial flags with identifying
colours for each army.
)he wounded and sic3 shall not &e regarded as $roince of war! they shall &e
cared for li3e the soldiers of the army which ca$tured them and sent home
after they are cured.
Doctors D their assistants and Cha$lains shall not &e ta3en as ca$ties
D shall &e returned to their own side.
)he lies of $risoners of war shall &e $rotected and they shall &e
e8changed without ransom.
)he $eaceful ciilian $o$ulation shall not &e molested.
Foundation of the Red Cross>
)he horrendous situation had hardly im$roed &y the &eginning of the second
half of the +2
th
century. Following the siege of Gessina in +C-C! Doctor
Palasciano! one of the $recursors of the Red Cross! haing &arely esca$ed the
death $enalty! was sentenced to one year in $rison for &andaging the wounds
of the defeated garrison. When the Crimean *ar &ro3e out in +C/-! the
www.bdlawsource.com
www.bdlawsource.com
medical serice of the Franco4British e8$editionary cor$s was irtually non4
e8istent. %f the .! ==!=== men in this army C.! == died of diseases in
uns$ea3a&le conditions of disaster and distress! Gortality among the
am$utees was 1, $ercent. It too3 the $rodigious energy and deotion of
Florence (ightingale! a ,0 year old English woman! the toll of death and
misery. In the concourse of the conflict all the customary $rinci$les of
humanitarian law had fallen &y the wayside.
From the a&oe it is eident that the International Committee of the Red
Cross was esta&lished at the latter $art of the +2
th
century! which was a great
milestone in the history of human ciili9ation. )his institution! though national
in com$osition &ut international in character and actiity! was the $roduct of
the endeaour of a great man #enry Dunant to whom the world owes too
much for his serices to man3ind.
Deelo$ment of International #umanitarian law at a glance
/== BCE Customs
Bilateral treaties
Customary law
+C/2 #enry Dunant Assists the wounded on the &attlefield of
Solferino.
+C0. Lie&er Code ?Institutions for the goernment of armies of the
'nited States in the field@.
+C0- First <enea Conention
+C0C Saint Peters&nur Declaration Renouncing the 'seA in )ime of
War! of Certain E8$losie Pro5ectiles.
+CC= %8ford Ganual on the Laws of War on Land.
+C22H+2=
1
#ague Conentions.
+2+. %8ford Ganual on the Laws of (aal War.
+2,/ <enea Protocol for the $rohi&ition of the 'se of As$hy8iating!
Poisonous or %ther <ases! and of Bacteriological Gethods of
Warfare.
www.bdlawsource.com 1!
www.bdlawsource.com
+2,2 First <enea Conention on Prisoners of war.
+2-/H+2-C Esta&lishment of the International Gilitary )ri&unals in
(urem&erg and )o3yo for the Prosecution and $unishment of
the ma5or war criminals.
+2-2 Four <enea Conentions4
I. on wounded and sic3 in the field.
ii. %n wounded! sic3 and shi$wrec3ed at sea.
Iii. on $risoners of war.
i. on Ciilians ?in the hand of enemy@
Common Art. . on non4international armed conflict.
+2/- #ague Conention for the Protection of cultural $ro$erty in the
Eent of Armed Conflict.
+20. )he Lie&er code of the customary law of war.
+211 )wo $rotocols additional to the <enea Conentions4
i. a$$lica&le in international armed conflicts. ?including
national li&eration wars@!
ii. a$$lica&le to non4international armed conflicts.
+2C= '( conention on $rohi&itions or Restrictions of the 'se of
Certain Conentional Wea$ons.
+22. Paris Conention of the $rohi&ition of the Deelo$ment!
Production! Stoc3$iling and 'se of Chemical wea$ons and on
their Destruction.
+22.H+22- Esta&lished of International Criminal )ri&unals for the Former
Iugoslaia ?in the #ague@ and Rwanda ?in Aruda@
+22/H+220 Protocols to the +2C= Wea$ons Conention $rotocol I* on
Blinding Laser Wea$ons.
+221 %ttawa Conention Banning Anti4$ersonnel land mine.
www.bdlawsource.com 11
www.bdlawsource.com
+22C Ado$tion of the Statues of the International committee of the
Red Cross &y the assem&ly of the ICRC re$lacing those of
+21..
www.bdlawsource.com 12
www.bdlawsource.com
Chapter %
Human Rights
#uman rights refer to the J&asic rights and freedoms to which all humans are
entitled.J E8am$les of rights and freedoms which hae come to &e commonly
thought of as human rights include ciil and $olitical rights! such as the right
to life and li&erty! freedom of e8$ression! and e;uality &efore the lawA and
economic! social and cultural rights! including the right to $artici$ate in
culture! the right to food! the right to wor3! and the right to education.
Chapter %#!
Histori"a$ )eve$opment o' Human Rights
Seeral ancient documents and later religions and $hiloso$hies included a
ariety of conce$ts that may &e considered to &e human rights. (ota&le
among such documents are the Edicts of Asho3a issued &y Asho3a the <reat
of India &etween ,1,4,.+ BCA and the Constitution of Gedina of 0,, AD!
drafted &y $ro$het Guhammad to mar3 a formal agreement &etween all of the
significant tri&es and families of Iathri& ?later 3nown as Gedina@! including
Guslims! "ews and Pagans. )he English Gagna Carta of +,+/ is $articularly
significant in the history of English law! and is hence significant in
international law and constitutional law today.
Guch of modern human rights law and the &asis of most modern
inter$retations of human rights can &e traced &ac3 to relatiely recent history.
)he )wele Articles of the Blac3 Forest ?+/,/@ are considered to &e the first
record of human rights in Euro$e. )hey were $art of the $easantsK demands
raised towards the Swa&ian League in the PeasantsK War in <ermany. )he
British Bill of Rights ?or 6An Act Declaring the Rights and Li&erties of the
Su&5ect and Settling the Succession of the Crown7@ of +0C2 made illegal a
range of o$$ressie goernmental actions in the 'nited Bingdom. )wo ma5or
reolutions occurred during the +Cth century! in the 'nited States ?+110@ and
in France ?+1C2@! leading to the ado$tion of the 'nited States Declaration of
Inde$endence and the French Declaration of the Rights of Gan and of the
Citi9en res$ectiely! &oth of which esta&lished certain legal rights. Additionally!
the *irginia Declaration of Rights of +110 encoded a num&er of fundamental
rights and freedoms into law.
www.bdlawsource.com 13
www.bdlawsource.com
)he Charter does not esta&lish any $articular of human rights $rotection and
the em$hasis is u$on the non4interention in the affairs of mem&er States of
the 'nited (ations.
-
)hese were followed &y deelo$ments in $hiloso$hy of
human rights &y $hiloso$hers such as )homas Paine! "ohn Stuart Gill and <.
W. F. #egel during the +Cth and +2th centuries. )he term human rights
$ro&a&ly came into use sometime &etween PaineKs )he Rights of Gan and
William Lloyd <arrisonKs +C.+ writings in )he Li&erator saying he was trying to
enlist his readers in Jthe great cause of human rightsJ.
Gany grou$s and moements hae managed to achiee $rofound social
changes oer the course of the ,=th century in the name of human rights. In
Western Euro$e and (orth America! la&our unions &rought a&out laws
granting wor3ers the right to stri3e! esta&lishing minimum wor3 conditions
and for&idding or regulating child la&our. )he womenKs rights moement
succeeded in gaining for many women the right to ote. (ational li&eration
moements in many countries succeeded in driing out colonial $owers. %ne
of the most influential was Gahatma <andhiKs moement to free his natie
India from British rule. Goements &y long4o$$ressed racial and religious
minorities succeeded in many $arts of the world! among them the ciil rights
moement! and more recent dierse identity $olitics moements! on &ehalf of
women and minorities in the 'nited States.
)he esta&lishment of the International Committee of the Red Cross! the +C0-
Lie&er Code and the first of the <enea Conentions in +C0- laid the
foundations of International humanitarian law! to &e further deelo$ed
following the two World Wars.
)he World Wars! and the huge losses of life and gross a&uses of human rights
that too3 $lace during them were a driing force &ehind the deelo$ment of
modern human rights instruments. )he League of (ations was esta&lished in
+2+2 at the negotiations oer the )reaty of *ersailles following the end of
World War I. )he LeagueKs goals included disarmament! $reenting war
through collectie security! settling dis$utes &etween countries through
negotiation! di$lomacy and im$roing glo&al welfare. Enshrined in its Charter
was a mandate to $romote many of the rights which were later included in the
'niersal Declaration of #uman Rights.
4
Ja"aid #ehman, International Human Rights Law: A Practical Approach. $27
www.bdlawsource.com 14
www.bdlawsource.com
At the +2-/ Ialta Conference! the Allied Powers agreed to create a new &ody
to su$$lant the LeagueKs role. )his &ody was to &e the 'nited (ations. )he
'nited (ations has $layed an im$ortant role in international human rights law
since its creation. Following the World Wars the 'nited (ations and its
mem&ers deelo$ed much of the discourse and the &odies of law which now
ma3e u$ international humanitarian law and international human rights law.
'niersal Declaration of #uman Rights>
)he 'niersal Declaration of #uman Rights ?'D#R@ is a non4&inding
declaration ado$ted &y the 'nited (ations <eneral Assem&ly in +2-C! $artly in
res$onse to the atrocities of World War II. Although the 'D#R is a non4
&inding resolution! it is now considered to &e a central com$onent of
international customary law which may &e ino3ed under a$$ro$riate
circumstances &y national and other 5udiciaries. )he 'D#R urges mem&er
nations to $romote a num&er of human! ciil! economic and social rights!
asserting these rights are $art of the Jfoundation of freedom! 5ustice and
$eace in the world.J )he declaration was the first international legal effort to
limit the &ehaiour of states and $ress u$on them duties to their citi9ens
following the model of the rights4duty duality.
)he 'D#R was framed &y mem&ers of the #uman Rights Commission! with
former First Lady Eleanor Rooseelt as Chair! who &egan to discuss an
International Bill of Rights in +2-1. )he mem&ers of the Commission did not
immediately agree on the form of such a &ill of rights! and whether! or how! it
should &e enforced. )he Commission $roceeded to frame the 'D#R and
accom$anying treaties! &ut the 'D#R ;uic3ly &ecame the $riority.L2M
Canadian law $rofessor "ohn #um$rey and French lawyer RenN Cassin were
res$onsi&le for much of the cross4national research and the structure of the
document res$ectiely! where the articles of the declaration were
inter$retatie of the general $rinci$le of the $ream&le. )he document was
structured &y Cassin to include the &asic $rinci$les of dignity! li&erty! e;uality
and &rotherhood in the first two articles! followed successiely &y rights
$ertaining to indiidualsA rights of indiiduals in relation to each other and to
grou$sA s$iritual! $u&lic and $olitical rightsA and economic! social and cultural
rights. )he final three articles $lace! according to Cassin! rights in the conte8t
of limits! duties and the social and $olitical order in which they are to &e
reali9ed. #um$hrey and Cassin intended the rights in the 'D#R to &e legally
www.bdlawsource.com 15
www.bdlawsource.com
enforcea&le through some means! as is reflected in the third clause of the
$ream&le>
www.bdlawsource.com 16
www.bdlawsource.com
Chapter %#%
Treaties
In +200! the International Coenant on Ciil and Political Rights ?ICCPR@ and
the International Coenant on Economic! Social and Cultural Rights ?ICESCR@
were ado$ted &y the 'nited (ations! &etween them ma3ing the rights
contained in the 'D#R &inding on all states that hae signed this treaty!
creating human rights law.
Since then numerous other treaties ?$ieces of legislation@ hae &een offered
at the international leel. )hey are generally 3nown as human rights
instruments. Some of the most significant are>
Conention on the Elimination of All Forms of Racial Discrimination
?CERD@ ?ado$ted +200! entry into force> +202@ L+M
Conention on the Elimination of All Forms of Discrimination Against
Women ?CEDAW@ ?entry into force> +2C+@ L,M
'nited (ations Conention Against )orture ?CA)@ ?ado$ted +2C-! entry
into force> +2C-@ L.M
Conention on the Rights of the Child ?CRC@ ?ado$ted +2C2! entry into
force> +2C2@ L-M
International Conention on the Protection of the Rights of All Gigrant
Wor3ers and Gem&ers of their Families ?ICRGW@ ?ado$ted +22=! entry
into force> ,==.@
www.bdlawsource.com 17
www.bdlawsource.com
Chapter (
Comparative Studies
Both international humanitarian law ?I#L@ and international human rights law
?I#RL@ strie to $rotect the lies! health and dignity of indiiduals! al&eit from
a different angle. It is therefore not sur$rising that! while ery different in
formulation! the essence of some of the rules is similar! if not identical. For
e8am$le! the two &odies of law aim to $rotect human life! $rohi&it torture or
cruel treatment! $rescri&e &asic rights for $ersons su&5ect to a criminal 5ustice
$rocess! $rohi&it discrimination! com$rise $roisions for the $rotection of
women and children! and regulate as$ects of the right to food and health. %n
the other hand! rules of I#L deal with many issues those are outside the
$uriew of I#RL! such as the conduct of hostilities! com&atant and $risoner of
war status and the $rotection of the Red Cross and Red Crescent em&lems.
Similarly! I#RL deals with as$ects of life in $eacetime that are not regulated
&y I#L! such as freedom of the $ress! the right to assem&ly! to ote and to
stri3e.
)oday there can no longer &e any du&ietyA international humanitarian law and
international human rights law are near relation. )his off4re$eated o&seration
must now &e acce$ted &y al+l. Gany &eliee that the close relationshi$
&etween those two e8isted and was $erceied 6from the outset7. )he
relationshi$ &etween humanitarian law and human rights are ela&orated.
)he term EI#L: is a relatiely new term of international law which a$$lied to
those rules of int:l law with an aim to $rotect $ersons suffering from the eils
of armed conflicts.
In the early +2/=s the ICRC first used the term to denote the law of <enea
Conention which $reiously had &een considered sim$ly a $art of the law.
)he term humanitarian law was first $ro$osed &y "ean Pictet who is
recogni9ed as the father of Godern International #umanitarian Law.
According to him 6#umanitarian law is that considera&le $ortion of
international law which is ins$ired &y a feeling for humanity and is centered
on the $rotection of the indiidual in time of war7.
www.bdlawsource.com 18
www.bdlawsource.com
International #umanitarian Law is &ased on the norms of international laws
rather than national constitutions and munici$al laws. It refers to int:l rules!
whether of conentional or customary origin! that are s$ecifically designed to
resole humanitarian $ro&lems resulting from armed conflicts international or
otherwise. )he historical deelo$ment of International #umanitarian Law
shows that it is consisted of conention! declarations! regulations etc. ado$ted
mainly in <enea and )he #ague. Godern International #umanitarian Law is
em&odied $rimarily in the four <enea Conention of +2-2 and two Protocols
of +211 and in rules of customary law.
In contrast! #uman rights! which were ty$ically called the rights of man or
natural rights! are those rights which are uniersally inherent iniola&le and
inaliena&le rights of all mem&ers of human family which $rimarily the state
are to ensure to their citi9en &y $roiding a well defined $rocedure.
)homas Paine may hae &een the first to use the term human rights! in his
English translation of the French Declaration of the Rights of Gan ado$ted &y
the national Assem&ly of France in +1C2 which $refaced the constitution of
+12+.
)he idea of human rights to a great e8tent eoled as a result of $olitical
a&solutism since rights of man &ecame a slogan against the in5ustices and
indignities committed &y tyrannical or des$otic goernments. It was
deelo$ed as a $art of the constitutional law of the indiidual states. )he
classic doctrine of international law had no $lace for human rights at all.
According to %$$enheim! 6the so4called rights of man cannot en5oy any
$rotection under international law! &ecause that law is concerned solely with
the relations &etween states and cannot confer rights on indiiduals7.
#uman rights $rimarily concerned relation &etween states and their own
nations! an area 6traditionally regarded as a domestic matter7. #uman rights!
in fact! did not enter the field of international law until the end of World War
II. )he atrocities committed during that war sered as the catalyst for
international concern for human rights and radically changed the theory and
$ractice of the law of nations.

)hus! international concern with human rights is
a contem$orary deelo$ment! dating largely from the Second World War.
www.bdlawsource.com 1
www.bdlawsource.com
%fficial lin3 &etween #uman Rights and #umanitarian Law>
Des$ite the 3een interest in international guarantee of human rights in the
years following World War II! no connection &etween human rights and
humanitarian law was recogni9ed for many years. )he 'niersal Declaration of
#uman Rights +2-C

or the Euro$ean Conention for the $rotection of #uman
Rights and Fundamental Freedoms! +2/= does not refer to the rights of
enemy nationals in time of war. )he '( int:l law commission in +2-2 decided
not to include the law war among the su&5ect of its concern.
(ot until +2C+ was a lin3 officially esta&lished &etween human rights and
humanitarian law the international conference on human right! conened &y
the 'nited (ations at )eheran ado$ted a resolution that called for meaningful
a$$lication of further agreements.'nder the title human rights in Armed
conflict the resolution initiated '( action on humanitarian law. Although the
'nited (ations s$o3e of human rights! it meant humanitarian law. It is thus!
seen that Jhumanitarian law is coming to &e recogni9ed as the $articular
&ranch of human rights law which relates to human rights in times of armed
conflictJ.
)he relationshi$ &etween these two &ranches of international law &ecame
$articularly o&ious in the war of national li&eration. Peo$le encased in such
was fought for self4 determination! which is recogni9ed as a human right in
the international conersions! and for recognition as a $arty to an
international armed conflict to which humanitarian law is a$$lica&le. )hus
6attem$ts at self4determination trigger &oth human rights and humanitarian
law ;uestions J.
Im$act of #uman Rights on #umanitarian law>
#uman rights conentions hae influenced humanitarian law! &ut the conerse
has not &een true. )he influence of the 'niersal Declaration of #uman
Rights! +2-C! the four <enera Conentions of +2-2 is a$$arent. )he strongest
im$act of human rights conentions on humanitarian law howeer may &e
seen in the two $rotocols of +211! which su$$lemented the conentions of
+2-2. Seeral $roisions in the two Protocols of +211 are dirty deried from
the ICCPR! +200 $articularly article 1/ of Protocol I and article -D 0 of
Protocol II.
www.bdlawsource.com 2!
www.bdlawsource.com
)he conergence of humanitarian law and human rights those that war and
$eace! ciil war and international war as well as international law and
domestic law are increasingly intertwined. Conse;uently! the law of war and
the law of $eace! as well as humanitarian law and human rights! which were
originally clearly distinct in sco$e! are now often a$$lica&le simultaneously.
/

5
%ee. &.B.M. Ma'i(ul )slam $a*wari, $rinci+les o' )n*erna*ional Humani*arians ,aw
&n -rien*ed $ers+ec*i"e, 8
www.bdlawsource.com 21
www.bdlawsource.com
Res$ectie fields of a$$lication>
)he humanitarian conentions are a$$lica&le in armed conflicts. )he
conentions $rotect $ersons of enemy nationality! or in the case of internal
armed conflict! mem&ers of the o$$osition $arties within the country. )he
o&5ect of International #umanitarian Law is to regulate hostilities in order to
attenuate their hardshi$s.
International #umanitarian Law includes international legal settlement of
armed conflicts and $rotection of their ictims! &ecause in all cases when
armed conflicts &rea3 out! the o&5ect of the international law community
should &e their utmost humani9ation! termination and $roision of assistance
to the ictims. In $ursuing this $olicy the international law community has
wor3ed out the <enea Conention for the $rotections of war ictims and
Protocols Additional to these conentions. ?+211@.
%n the other hand! human rights conentions howeer! in $rinci$al a$$ly
during $eacetime as well as in armed conflicts and $ersons within the
"urisdiction of a state. In actual $ractice the #uman Rights conentions hae a
ery limited a$$lication to armed conflicts. #uman Rights Conentions contain
clauses $ermitting the ratifying states to derogate their o&ligations in times of
$u&lic emergency on war. In most armed conflicts! therefore! the ma5ority of
human rights may &e sus$ended.
Su&stantie Rights>
A com$arison of the su&stantie rights guaranteed &y humanitarian law and
&y human rights conentions results in three categories of rights.
Firstly! some rights are common to &oth human rights and humanitarian law.
Among these rights are the $rohi&itions of iolence to the life! health or
$hysical or mental well &eing of $ersons! torture and other inhuman treatment
and the guarantees of a fair 5udicial $rocedure in the case of $enal
$rosecution.
Secondly! there are some rights which are s$ecific to the human rights
conentions &ut that hae no releance to armed conflicts. Among these
rights are the economic! social and cultural guarantees of the International
Coenant on Economic social li&erties such as the freedom of e8$ression and
association! the right to marry etc.
www.bdlawsource.com 22
www.bdlawsource.com
)hirdly! there are some rights which are s$ecific to the humanitarian Law
?Conentions@ &ut a$$lica&le in armed conflict! these rights are intended to
$rotect the wounded and a sic3 mem&er of the armed forces! $risoners of
wars! ciilian internees and other $ersons.
)hus! the su&stantie rights guaranteed &y humanitarian law and human
rights conentions demonstrate similarities and dissimilarities &etween
humanitarian law and human rights law.
Enforcement mechanism>
)he enforcement mechanism of human rights and humanitarian law are
different in nature. #uman rights may &e enforced &y the international Law
tri&unal $roided the domestic remedies hae &een e8hausted. For this
com$laints to &e made &y a contracting $arty or &y the indiiduals whose
rights hae &een infringed.
%n the other hand! humanitarian law may &e $rotected through the $rotecting
$ower and H or the ICRC. %nly in few cases it can &e enforced &y the 5udicial
authority.
Status under international legal system>
)he relationshi$ &etween international #umanitarian Law and #uman Rights in
International Law are o&scure and will $ro&a&ly remain a matter of
controersy for some time. Seeral 5urists hae offered $ro$osals to alleiate
this $ro&lem. )here are three iews in this regard4
According to Pictet JInternational #umanitarian Law should com$rise &oth
human rights and humanitarian Law!J But his agreements can not &e acce$ted
on the ground that International #umanitarian Law is used for Law of armed
conflict and not for human rights.
According to A.#. Ro&ertson! J #umanitarian Law is one &ranch of the Law of
#uman Rights! and human rights afford the &asis for humanitarian LawJ
Similarly <.I.A.D. Dra$er considered humanitarian Law as a regime of human
rights ada$ted to the $articular needs of armed conflicts.
)here is another iew which is o$$osite to that mentioned a&oe. According to
this iew! humanitarian Law and human rights regulate different su&5ects and
www.bdlawsource.com 23
www.bdlawsource.com
are of a different nature. In #enry Geyrowit9Ks o$inion! the ideological
controersies e8isting with regard to human rights confusing humanitarian law
with human rights is dangerous for humanitarian law.
)he Philoso$hy of #umanitarian law and human rights>
International #umanitarian Law is increasingly $erceied as $art of human
rights a$$lica&le in armed conflict. It was deelo$ed at a time when recourse
to force was not illegal as an instrument of national $olicy. Although it is true
that one of the influences on the deelo$ment of the law in Euro$e was the
church 5ust war doctrine! which also encom$assed the 5ustice resorting to
force the foundations of international #umanitarian Law were laid at a time
when there was no disgrace in &eginning a war. )he law was therefore! in
large $art &ased on the a$$ro$riate res$ect that was due to another
$rofessional army. We will here as a good illustration of the $hiloso$hy
underlying the customary law of the war the Lie&er Code of as this Code
was used as the $rinci$al &asis for deelo$ment of the #ague Conentions of
+C22 an +2=1 which in turn influenced later deelo$ment.
)he releance of war &eing a lawful actiity at the time is reflected in Art.01 of
the Lie&er Code>
J)he law of nations allows eery soereign got. to ma3e war u$on another
soereign state! and there are admits of no rules or laws different from those
of regular warfare! regarding the treatment of $risoners of war! although they
may &elong to the army of a got. which the ca$tor army consider as a
wanton and un5ust assailant.7
)he Lie&er Code was regarded at the time as generally reflecting customary
law although in $laces it $articularly stressed the im$ortance of res$ecting
humanitarian treatment which! in $ractice was not always accorded.
'nli3e human rights law! howeer! there is no conce$t of derogation in
humanitarian law. Derogation in human rights is allowed in most general
treaties in times of war or other emergency threatening the life of the nation.
#umanitarian law is $recisely for those situations! and he rules are fashioned
in a manner that will not undermine the a&ility of the army in ;uestions win
the war.
www.bdlawsource.com 24
www.bdlawsource.com
International #umanitarian Law indicates how a $arty to a conflict is to
&ehae in relation to $eo$le at its mercy! where human rights law are
concentrates on the rights of the reci$ients of a certain treatment. In the
a$$earance of the treaty International #umanitarian law seems long and
com$lies where as human rights treaties one com$aratiely short and sim$le.
Conce$tual similarities are $resent day &etween humanitarian rights law>

#aing loo3ed at the origins and formulation of these two areas of law! we can
now turn to their $resent method o inter $erdition and im$lementation. )he
most im$ortant change as far as humanitarian law is concerned is the fact
that recourse to war is not longer a legal means of regulating conflict. In
general humanitarian law is how less $erceied as a code of honour for
com&atants than as a means of s$aring non4 com&atants as much as $ossi&le
from the horrors of war. From a $urist human rights $oint o iew! &ased as it
is on res$ect for human life and well &eing the use of force is in itself a
iolation of human rights. )his was indeed stated at the +20C #uman rights
conference in )ehran as follows>
6Peace is the underlying condition the full o&serance of human rights and war
is their negation.J
)he most im$ortant general o&seration to &e made is thud li3e human rights
law! humanitarian law is &ased on the $remise that the $rotection accorded to
ictims of war must &e without any discrimination. )his is such a fundamental
rule of human rights that it is s$ecified not only in the '( charter &ut also in
all human rights treaties. %ne of many e8am$les is humanitarian law is Art.
21 of the fourth <enea Conention of +2-2>
6all $rotected $ersons shall &e treated with the same consideration &y the
$arty to the conflict in whose $ower they are! without any aderse distinctions
&ased! in $articular or race! religion on $olitical o$inion.J
)he mutual influence of human rights and #umanitarian Law>
)here are two 3inds of reasons for the almost total inde$endence of
International #umanitarian Law rights law immediately after the World War II.
)he first relate to the genesis and deelo$ment of the &ranches concerned.
www.bdlawsource.com 25
www.bdlawsource.com
#oweer! their $resent conergence! as descri&ed earlier! ma3es the
esta&lishment of certain closer lin3s &etween two legal domains conceia&le.
In the connection! Art. . common to the four <enea Conentions is
reealing. Giniature treaty within the Conentions Common Art.. lays down
the &asic rules which states are re;uired to res$ect when confronted with
armed grou$s on their own territory. It thus humanitarian law which in
$rinci$le! did not &etween itself with the relations &etween a state and it:s
nationally. )he true turning $oint when International #umanitarian Law and
human rights gradually &egan to draw closer came in +20C during the
International conference on #uman Rights in )eheran! at which the '( for the
first time considered the a$$lication of human rights in armed conflict. )he
interlin3ing of human rights and humanitarian law can also &e seen in the
wor3 of &odies res$onsi&le for monitoring and im$lementation international
law.
In the connection it is interesting to not that in recent years the Security
Council has &een citing humanitarian law more and more fre;uently in su$$ort
of its resolutions. )he latest e8am$le of this tendency can &e found in
Resolution ?+22.@ on the conflict in the former Iugoslaia! in international
tri&unal for the $rosecution of $ersons res$onsi&le for serious iolations of
International #umanitarian Law committed in the territory of the former
Iugoslaia since +22+.J
A &ody more s$ecifically concerned with the im$lementation of human rights
the commission an #uman Rights! li3ewise no longer hesitates to ino3e
humanitarian law to &ac3 u$ its recommendations. )he re$ort on the situation
of human rights in Buwait under Ira;i %ccu$ation at its -C
th
session is a clear
e8am$le.
Con"$usion:
www.bdlawsource.com 26
www.bdlawsource.com
Eentually! &efore concluding our discussion we can say that International
#umanitarian law was conceied and deelo$ed gradually through ancient
$eriod! middle $eriod and a greater e8tent during modern $eriod. Although
#uman rights and humanitarian law hae totally different historical origins! it
is resultantly coincided and has influenced each other in recent deelo$ments.
Both the human rights and humanitarian law now hae a much greater
international $rofile and are regularly &eing used together in the wor3 of &oth
international and non goernmental organi9ations. )here can &e no dou&t that
the growing $rominence of human rights law in recent decades is largely due
to the actiism of non4goernmental human rights organi9ations. Seeral hae
now &egun to use humanitarian law in their wor3 and may well e8ert a
considera&le influence in the future! and it is to &e ho$ed that continued
recognition of the s$ecific nature of humanitarian law! together with the
arious energies deoted to im$lementation of human right law! will hae the
effect of enhancing the $rotection of the $erson in situations of iolence.
Des$ite some 5ustifications &etween humanitarian law and human rights! it is
not entirely satisfactory! #uman rights and humanitarian law are satisfactorily
descri&ed as inde$endent $arts of international law! with common aims! some
common $rinci$les and oerla$$ing areas of concern and effect. )his is the
$rudent a$$roach which demarcates the status of human rights and
humanitarian law under the international legal system.
www.bdlawsource.com 27
www.bdlawsource.com
Bi+$iography
Boo,s
A.B.G. Gafi9ul Islam PatwariA Principles of International Humanitarian
law: An riental Perspecti!e! Second Edition ,==1! ?Dha3a> Galli3a
Pu&lishing #ouse@.
"aaid RehmanA International Human "i#hts $aw: A Practical
Approach% First Edition ,==.! ?London> Pearson Education Ltd.@.
Gd. "ahid #ossain Bhuiyan! Prof Louise Doswald Bec3 D Prof A9i9ur
Rahman ChowdhuryA International Humanitarian $aw4 An Antholo#&%
First Edition ,==2! ?India> Le8is (e8is@.
*e+site
htt$>HHwww.icrc.orgHWe&HEngHsiteeng=.nsfHhtmlHsectionOihlOandOhumanOright
s
www.bdlawsource.com 28
www.bdlawsource.com
Bi+$iography
Boo,s
A.B.G. Gafi9ul Islam PatwariA Principles of International Humanitarian
law: An riental Perspecti!e! Second Edition ,==1! ?Dha3a> Galli3a
Pu&lishing #ouse@.
"aaid RehmanA International Human "i#hts $aw: A Practical
Approach% First Edition ,==.! ?London> Pearson Education Ltd.@.
Gd. "ahid #ossain Bhuiyan! Prof Louise Doswald Bec3 D Prof A9i9ur
Rahman ChowdhuryA International Humanitarian $aw4 An Anthology!
First Edition ,==2! ?India> Le8is (e8is@.
*e+site
htt$>HHwww.icrc.orgHWe&HEngHsiteeng=.nsfHhtmlHsectionOihlOandOhumanOright
s
www.bdlawsource.com 2