A/HRC/11/31
page 10
22. It was suggested that the question of the complementary and mutually reinforcing nature of
international human rights and international humanitarian law had been interpreted in different
ways. For example, in its resolution 5/1 on institution-building, the Human Rights Council
referred to the complementary and mutually interrelated nature of international human rights law
and international humanitarian law, while in its resolution 9/9, it acknowledged that both bodies
of law were mutually reinforcing. It was questioned whether there is any real difference between
“mutually interrelated”, as indicated in resolution 5/1, and “mutually reinforcing”, as mentioned
in resolution 9/9. It was suggested that “mutually reinforcing” implied a reinforcement to do
something. Since the aim of both bodies of law was to protect human dignity and in particular
that of civilians taking no part in hostilities, it was pointed out that the Council had moved from
a neutral statement about the interconnection between the two bodies of law to a more purposeful
one. In that respect, it was suggested that, if the debate focused on the mutually reinforcing
aspect, it would be easier to choose the best rules to achieve the goal of protecting the rights of
civilians.
23. Concerning the question of complementarity, it was highlighted that both human rights law
and international humanitarian law informed each other in a number of ways. For instance, in
order to determine what constituted an arbitrary deprivation of life in the context of a given
armed conflict, human rights law had to take into account the specific conditions set out by
international humanitarian law applicable to the particular type of conflict. This test was
particularly difficult in situations of non-international armed conflicts, because that type of
conflict had to fulfil an intensity criterion (protracted armed violence as the International
Criminal Tribunal for the Former Yugoslavia had indicated and as mentioned earlier) as well as
the organization criterion (the determination that non-States parties to the conflict are sufficiently
organized to confront the State or each other with military means). These criteria, however,
raised difficulties because often Governments refused to acknowledge that violence had reached
the level of a situation of “armed conflict” on their territory, nor the existence of armed groups
with a certain degree of organization operating within their territory. These situations raised
issues with regard to the respect of applicable law, since the Government’s denial of the
existence of an internal armed conflict made it difficult to argue in favour of the application of
international humanitarian law as a complementary source for human rights law, which remained
applicable. In this respect, it was pointed out that under international humanitarian law, the legal
qualification of conflicts was based on facts and was independent of political determination by
the parties.
24. In the light of the above-mentioned difficulties regarding situations of non-international
armed conflicts, it was argued that human rights law and international humanitarian law were
complementary to the extent that the latter reinforced the joint aim of protecting human dignity.
In non-international armed conflicts, the traditional reciprocity approach of international
humanitarian law was unworkable. It was underscored that there was a natural imbalance
between a State party to an armed conflict and a non-State party, because the latter was
accountable under criminal law for acts carried out against Government forces. Thus, since the
reciprocity approach would be hardly acceptable in the context of non-international armed
conflicts, the better paradigm to apply was that of human rights law. It was further recalled that,
when discussing the relationship between human rights law and international humanitarian law,
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