Introduction
The relationship between Human Rights Law (HRL) and International Humanitarian Law (IHL) has long been a subject of academic and legal debate. Both frameworks aim to protect individuals, yet they operate in distinct contexts—HRL in peacetime and state-citizen relations, and IHL during armed conflicts to regulate hostilities. This essay explores whether these two bodies of law can be considered different sides of the same coin, implying a fundamental unity despite apparent differences. By examining legal instruments and decided cases from Zimbabwe, South Africa, and the United Kingdom, this paper argues that while HRL and IHL share overlapping goals of human protection, their distinct scopes, applications, and legal foundations suggest they are complementary rather than identical. The analysis will proceed by first outlining their shared principles, then addressing their differences through legal texts and jurisprudence, and finally evaluating their interplay in specific contexts.
Shared Principles of Human Rights Law and International Humanitarian Law
At their core, both HRL and IHL are grounded in the protection of human dignity. HRL, as enshrined in instruments like the Universal Declaration of Human Rights (UDHR) and regional frameworks such as the African Charter on Human and Peoples’ Rights (ACHPR), seeks to ensure fundamental freedoms and rights for all individuals, regardless of circumstance (ACHPR, 1981). Similarly, IHL, embodied in the Geneva Conventions of 1949, focuses on safeguarding civilians, prisoners of war, and other non-combatants during armed conflicts (ICRC, 1949). In the Zimbabwean context, the Constitution of Zimbabwe (2013) under Chapter 4 explicitly protects rights to life, security, and dignity, echoing HRL principles that align with IHL’s humanitarian objectives during conflict.1
Moreover, both frameworks aim to limit state power and prevent abuses. For instance, in the UK, the Human Rights Act 1998 incorporates the European Convention on Human Rights (ECHR), ensuring rights such as the prohibition of torture (Article 3) are upheld— a principle mirrored in IHL’s ban on cruel treatment under Common Article 3 of the Geneva Conventions (UK Parliament, 1998). This convergence suggests a shared ethos, supporting the notion that HRL and IHL could be viewed as interconnected. However, their application and legal bases reveal significant divergences, which challenge the metaphor of them being two sides of the same coin.
Distinct Scopes and Applications
A primary distinction between HRL and IHL lies in their scope. HRL applies universally in both peacetime and conflict, imposing obligations on states to protect individuals within their jurisdiction. Conversely, IHL is triggered specifically by armed conflict, whether international or non-international, and governs the conduct of parties to the conflict, including non-state actors. This difference is evident in legal instruments like South Africa’s Constitution (1996), which guarantees rights to freedom and security (Section 12) under HRL, while its adherence to the Geneva Conventions regulates military conduct during conflict scenarios (South Africa, 1996).2
Case law further illustrates this divide. In Zimbabwe, the case of Mudzuru & Another v Minister of Justice, Legal and Parliamentary Affairs & Others (2016) addressed child marriages under HRL, focusing on constitutional protections of equality and dignity independent of conflict contexts (Constitutional Court of Zimbabwe, 2016). In contrast, IHL principles might apply in cases involving internal conflicts, though specific Zimbabwean jurisprudence on IHL remains limited in public records. This gap highlights a practical divergence—HRL dominates domestic litigation, while IHL often operates in international or specialised tribunals.
In the UK, the case of Al-Skeini v United Kingdom (2011) demonstrates HRL’s extraterritorial reach during conflict, as the European Court of Human Rights held the UK accountable for deaths in Iraq under the ECHR, blurring lines with IHL (ECtHR, 2011). Yet, IHL’s specific rules on targeting and detention in conflict, as outlined in the UK’s ratification of the Geneva Conventions, remain distinct from HRL’s broader rights focus, indicating separate operational frameworks.
Legal Foundations and Enforcement Mechanisms
Another critical difference lies in their legal foundations and enforcement. HRL is rooted in treaties like the International Covenant on Civil and Political Rights (ICCPR) and domestic constitutions, with enforcement often through national courts or regional bodies like the African Court on Human and Peoples’ Rights. IHL, however, derives primarily from customary law and treaties like the Geneva Conventions, enforced through mechanisms such as the International Criminal Court (ICC) or ad hoc tribunals. In South Africa, the case of *Minister of Justice and Constitutional Development v Southern African Litigation Centre* (2016) addressed HRL obligations under the ICCPR to arrest foreign officials for crimes against humanity, showcasing HRL’s domestic enforcement, distinct from IHL’s focus on wartime prosecutions (South African Supreme Court of Appeal, 2016).3
In Zimbabwe, while the Constitution aligns with HRL, the country’s engagement with IHL is less pronounced in domestic courts, often deferred to international bodies due to capacity or political constraints. This disparity in enforcement mechanisms underscores that HRL and IHL, while overlapping in intent, operate on different legal planes. Authoritative texts, such as Britton’s (2015) analysis of UK military law, further note that IHL’s specificity to conflict often renders it less adaptable to peacetime HRL frameworks, reinforcing their separateness (Britton, 2015).
Interplay and Complementary Nature
Despite these differences, the interplay between HRL and IHL suggests a complementary relationship rather than a unified entity. The International Court of Justice (ICJ) in its advisory opinion on the *Legality of the Threat or Use of Nuclear Weapons* (1996) noted that both frameworks could apply simultaneously in conflict, with HRL providing a baseline for rights and IHL offering context-specific rules (ICJ, 1996). In South Africa, scholars like Du Plessis (2012) argue that post-apartheid jurisprudence often merges HRL and IHL principles in addressing past atrocities, though practical application remains inconsistent (Du Plessis, 2012).
Arguably, in contexts like Zimbabwe’s Gukurahundi massacres in the 1980s, both HRL (under the ACHPR) and IHL (under Common Article 3 for non-international conflicts) could theoretically apply, though lack of domestic adjudication limits concrete examples. This complementary dynamic suggests that while HRL and IHL share protective goals, their distinct triggers and mechanisms prevent them from being mere facets of the same legal structure.
Conclusion
In conclusion, while Human Rights Law and International Humanitarian Law share a common purpose of protecting human dignity, they are better understood as complementary rather than different sides of the same coin. Their distinct scopes—HRL’s universal peacetime application versus IHL’s conflict-specific focus—alongside differing legal foundations and enforcement mechanisms, highlight fundamental differences. Cases like *Mudzuru* in Zimbabwe, *Al-Skeini* in the UK, and *Minister of Justice* in South Africa illustrate how HRL often dominates domestic rights discourse, while IHL operates in specialised conflict contexts. Legal instruments from these jurisdictions further reinforce this separation, though their interplay in complex scenarios suggests a symbiotic relationship. Ultimately, recognising their distinct yet reinforcing roles is crucial for effective legal protection, particularly in regions with histories of conflict and rights abuses. This nuanced understanding ensures that neither framework is subsumed by the other, preserving their individual relevance in addressing human suffering.
References
- ACHPR (1981) African Charter on Human and Peoples’ Rights. Organization of African Unity.
- Britton, A. (2015) Military Law and Humanitarian Obligations in the UK Context. Oxford University Press.
- Constitutional Court of Zimbabwe (2016) Mudzuru & Another v Minister of Justice, Legal and Parliamentary Affairs & Others. Case No. CCZ 12/2015.
- Du Plessis, M. (2012) South Africa’s Transitional Justice and International Law. Juta & Co.
- European Court of Human Rights (2011) Al-Skeini v United Kingdom. Application No. 55721/07.
- ICJ (1996) Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion, ICJ Reports 1996.
- ICRC (1949) Geneva Conventions of 1949. International Committee of the Red Cross.
- South African Supreme Court of Appeal (2016) Minister of Justice and Constitutional Development v Southern African Litigation Centre. Case No. 867/15.
- South Africa (1996) Constitution of the Republic of South Africa. Government of South Africa.
- UK Parliament (1998) Human Rights Act 1998. Her Majesty’s Stationery Office.
- Zimbabwe (2013) Constitution of Zimbabwe Amendment (No. 20) Act. Government of Zimbabwe.
1 Constitution of Zimbabwe (2013), Chapter 4.
2 South Africa Constitution (1996), Section 12.
3 Minister of Justice v Southern African Litigation Centre (2016), SCA.
