A final area that needs to be addressed here is the relationship between international humanitarian law and international human rights law, as this dichotomy permeates a number of other issues explored in this course, such as the right to life and deprivation of liberty in situations of armed conflict. IHL already reflects basic and non-negotiable minimum human rights standards. Unlike international human rights law, which allows exceptions to certain human rights in times of public emergency (see module 7), even in situations of armed conflict where they continue to apply, IHL is already the minimum standard that cannot be further reduced. Nevertheless, IHL and international human rights law still share «a common foundation of irrevocable rights and a common goal of protecting human life and dignity» (Abella v. Argentina, 1997, para. 183). Both legal systems often apply at the same time and regulate issues such as the right to a fair trial, humane treatment in detention and the prohibition of torture. However, the protection afforded by international human rights law generally provides a broader and more comprehensive level of protection (e.g. with regard to abusive or arbitrary treatment by public authorities) and remains relevant in situations of armed conflict. The starting point is that, in situations of armed conflict, international humanitarian law is the principal applicable legal system, i.e. lex specialis, which governs the conduct of hostilities and the protection of persons in situations of armed conflict. This implies that there is a link between certain activities or treatments and an ongoing conflict. Where such a link cannot be established, normal approaches to criminal justice apply in peacetime.

Although human rights standards continue to apply in times of armed conflict, the modalities of this joint application of legal regimes remain unclear. What is certain, however, is that these two legal bodies – IHL and human rights law – share fundamental and fundamental values. (Melzer, 2016 was particularly helpful in writing this section). Another is that, unlike international human rights law, IHL does not provide an enforcement mechanism for persons whose human rights have been violated, but focuses on international criminal law approaches to prosecute those who violate those rights, for example as war crimes. However, the scope of IHL is in some respects broader than international human rights law. For example, IHL is not limited to the protection of persons, but also extends to livestock, civilian objects, cultural property, the environment, etc. Moreover, unlike international human rights law, which is binding only on States, international humanitarian law is binding on all parties to an armed conflict, including non-State actors, which currently pose some of the greatest challenges related to terrorism in situations of armed conflict. Sometimes, important conceptual and legal differences can lead to tensions between the two legal systems. A particularly important example for counter-terrorism measures concerns the right to life.

IHL allows persons taking a direct part in hostilities, such as armed non-state actors, to be deprived of this right for military reasons in order to balance this with considerations of humanity. Accordingly, all IHL principles take into account the need to protect individuals from the atrocities of war and, as such, can be said to express the right to life. For example, the principle of distinction, by providing that civilians and civilian objects may not be directly attacked in armed conflict, protects civilians in armed conflict. Direct targeting of civilians is prohibited, and dozens of other standards similarly protect civilian lives (and, to a lesser extent, the lives of combatants) in wartime. The extent to which human rights should be applied in wartime has been hotly debated without a clear picture emerging. The so-called «kill or capture» debate is emblematic of this debate. The question arose as to whether, if possible, states should capture combatants rather than kill them, as different researchers have different views on the subject. In contrast, international human rights law seeks to protect life by prohibiting «arbitrary» and unnecessary deprivation of life, regardless of a person`s status, including IHL. When such tensions arise between two or more legal systems, the issues are normally resolved by the principle of lex specialis. This allows a specialized legal system such as IHL to prevail over the more general and contradictory law (lex generalis). Therefore, all issues that arise, for example with regard to arbitrary deprivation of life during hostilities, are determined through the legal prism of IHL (ICJ, 1996, para.

25). Although the internment/detention of a civilian or prisoner of war is technically contrary to the principle of freedom and security enshrined in international human rights law (see module 10), it is permitted under the lex specialis of IHL (in particular the Geneva Conventions of 1949 III and IV). What are the similarities and differences between international humanitarian law (IHL) and international human rights law (IHL)? This document from the International Committee of the Red Cross (ICRC) explains the main principles of IHL and IHL and briefly describes when and how they are applied, who is bound by them and who is protected by them. Both IHL and IHL seek to protect the life, health and dignity of the individual, albeit from a different perspective. There are important conceptual differences between the two legal systems. The first is that international human rights law is linked to the jurisdiction of States, which is normally their physical territory, although in some situations where certain criteria are met, their obligations may extend extraterritorially to the physical territory of another State (ICJ, 2004, para. 109). Specific moral dilemmas and legal issues have arisen in the context of military counter-terrorism operations involving children, especially since international humanitarian law and international human rights law require special protection against harm to children.

Naturally, attacks on child soldiers arouse many sensitivities, even if they are directly involved in hostilities, whether as combatants or civilians directly participating in hostilities, and pose a very real threat. Provost suggested that the legal situation is likely to be such that, if military necessity requires it and there is no viable alternative, targeting these children should be considered permissible as a last resort. Any attack on children who do not meet this higher and more restrictive standard compared to comparable adults is likely to violate contractual and customary rules that prohibit unnecessary injury and suffering (Provost, 2016). Another important issue of concern to the international community is the involvement of children in armed conflict. Recognizing that children are in need of special protection, inter alia, because of the far-reaching and adverse effects that armed conflict can have on children, the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict establishes a number of obligations for States parties, such as: that children (i.e. persons under 18 years of age) do not take a direct part in hostilities (paras. 1 and 4). Another topic worth mentioning is the psychological damage caused in the context of armed conflicts, whether by terrorist actors or by state counter-terrorism measures, such as the excessive (or at least frequent) use of drones over areas inhabited by civilians.

This can lead to great stress and high levels of psychological anxiety, or even damage, for example: for fear of the use of such drones by foreign military personnel for purposes ranging from surveillance to targeted assassinations at any time. Since 2018, IHL does not provide for psychological harm, but only for physical harm (de lege lata). A key question is therefore whether IHL should also include psychological harm in its calculation of proportionality (de lege ferenda). Although formulated very differently, the essence of some rules is similar, if not identical. The rules of IHL deal with many issues that do not fall within the competence of IHL, such as the conduct of hostilities, the status of combatants and prisoners of war, and the protection of Red Cross and Red Crescent emblems. IHL also deals with aspects of life in peacetime that are not regulated by IHL, such as freedom of the press, freedom of assembly, election and strike.