This chapter discusses the development and application of international humanitarian law (IHL) and its interrelationship with human rights law. It further examines this special relationship, which is of particular importance for the protection of civilians, especially where the applicability of IHL is contested or where IHL constitutes an exception to certain rights, such as the right to life, or fails to prevent and/or provide effective remedies for violations. The chapter seeks to identify the scope of application of IHL and demonstrate the degree to which the two can be reconciled. Moreover, a special case is made for the law applicable in situations of military occupation whereby human rights are subordinate to IHL. Despite this subordination, in practice because international human rights tribunals are not mandated to apply humanitarian law they necessarily interpret and enforce the rights of the victims on the basis of the rights found in their respective statutes. As a result, the jurisprudence of human rights tribunals is not always consistent with IHL. Yet, such tribunals are hard pressed to accept jurisdiction over situations which would otherwise be resolved on the basis of IHL alone. This chapter therefore goes on to discuss the exercise of extraterritorial jurisdiction by human rights tribunals.

The chapter begins by explaining the complementary role of criminal law in the application of international human rights. It then goes on to analyse the function of the concept of individual criminal responsibility under international law and its relationship to human rights violations. Subsequently, we examine the processes and mechanisms for enforcement of criminal rules under international law with an emphasis on policy rather than the procedural rules underpinning jurisdiction. The ‘peace versus justice’ debate, namely whether international prosecution should sometimes be side-lined in favour of negotiated solutions to ongoing conflicts, is an integral part of this discussion. Finally, the chapter concludes with an analysis of the two core mass international crimes, namely genocide and crimes against humanity with a view to demonstrating that their formulation is largely based on human rights (i.e. rights of victims), rather than criminal law, considerations.

This textbook looks at the theory of human rights, its historical roots, and goes on to examine several key areas of human rights, including the intersection between human rights and international law, access to treaty-based mechanisms and their practice and case law, international human rights courts and tribunals, including those with a criminal function, justiciability of rights before the courts, civil and political rights, as well as socio-economic rights.

This chapter seeks to demonstrate, among other things, that these dangers to personal liberty far outweigh the threats to human safety posed by serious ‘terrorist’ threats. The reader will acquire an appreciation of the obligation of states to protect their citizens from terrorism, including the debate as to whether terrorists possess human rights obligations. We shall then proceed to examine the most pertinent human rights violations in counter-terrorist operations. These include the application of the principle of legality to terrorist legislation, the permissibility of relevant derogations, the right to life and the practice of targeted killings, the various contours of unlawful detention against terrorist suspects, torture and ill-treatment in order to gather intelligence information and promote confessions and finally the practice of abductions, unlawful extraditions and illegal rendition. To be sure, counter-terrorist operations have been found to infringe a range of other civil and political rights, such as the freedom of expression and the right to a fair trial.

Treaty bodies fulfil a range of functions, from promotional activities to monitoring and adjudicating complaints. These tasks, which are taken for granted today, are the result of states’ willingness to vest treaty bodies with the mandate of monitoring compliance. This constituted a remarkable shift away from earlier notions of sovereignty in a system where states were, essentially, the sole authors, interpreters and enforcers of rights and obligations. What accounts for this change and why do states agree to be part of such regimes? This question, which has attracted considerable attention in recent years, poses a particular challenge because it does not seem to conform to the realist views that used to hold considerable sway in international relations, according to which states use institutions as a means to exercise power. Alternative theories emphasise states’ interests or point to ‘acculturation’. This denotes a process of interaction of various actors which generates a pull to build and join credible human rights mechanisms as part of an international order. Indeed, these mechanisms form part of broader international institution building, particularly at the UN level.

The human rights movement is by no means uniform and a series of challenges, both within the movement and in respect of its role as a political actor, have become more pronounced with the increasing power of human rights and its advocates. This development has cast the light on human rights advocates, such as NGOs, and has raised questions both of legitimacy – who are you to make claims in the name of human rights or on behalf of certain people? Are you living up to human rights principles in your own practice? – and effectiveness – are you really making the positive difference in people’s lives you claim to make? Responses to these challenges testify to a growing self-awareness and critical assessment of the nature of human rights work, which includes an evaluation of the efficacy of strategies used to promote and protect human rights. Inevitably, human rights advocates are increasingly drawn into the political domain and are faced with the difficult task of marrying principle with pragmatism. This chapter explores the tensions arising in these contexts and assesses the strategies used by human rights actors, namely documentation, human rights reporting, advocacy, awareness-raising, training and education and, where relevant, litigation

The chapter sets off by examining the theoretical bases upon which a non-state actor (NSA) may be deemed to possess human rights obligations and critiques the various approaches put forward by states and the scholarly community. It then goes on to examine a variety of NSAs along with their own distinct position as regards their human rights role. Some NSAs, such as international financial institutions (IFIs), take a legalistic approach to the matter and are generally wary of accepting even the more fundamental obligations, whereas other actors are keen to achieve a broader human rights agenda and are thus willing to accept some human rights commitments. Besides intergovernmental organisations we also focus on multinational corporations (MNCs) and the way in which their operations have a significant impact on the rights of populations worldwide. It shall be demonstrated that, while their human rights ‘obligations’, if any, have largely arisen as a result of voluntary undertakings, they are now entering a hybrid phase of limited regulation, or at least of an attempt at regulation. Finally, we shed some light on national liberation movements and rebel groups and their distinct responsibilities under international humanitarian law (IHL).

This chapter explores the concept of vulnerability, its recognition and use in international human rights law, and the broader debate on the (potential) advantages and downsides of focusing on vulnerable identities to strengthen protection. Following this overview, it examines core categories of vulnerability that are either already reflected in international human rights law, largely in the form of anti-discrimination instruments, or constitute a priority area in recent debates and legal developments. This includes ‘race’, gender and sexual orientation, persons with disabilities, persons living in extreme poverty, age (the rights of children are addressed in a discreet chapter), as well as refugees, migrants and internally displaced persons (IDPs). For each of these categories, the chapter examines core notions, highlights specific concerns, charts relevant legal developments and analyses both advancements made and remaining challenges.

Complaints procedures offer a unique opportunity for individuals and groups to have claims of human rights violations considered and their rights vindicated in a judicial or quasi-judicial procedure. On the one hand, for non-governmental organisations (NGOs) and human rights lawyers, complaints procedures are an important avenue to pursue strategic objectives, in addition to supporting victims in individual cases. States, on the other hand, may find themselves having to defend allegations of specific or systemic violations. Ideally, complaints procedures act as a mirror that provides an opportunity for states to bring their practices into conformity with the respective treaty. In practice, however, states often view unfavourable decisions as unwarranted criticism, which may create difficulties at the implementation stage. The treaty bodies themselves are in theory neutral arbiters that apply the treaty provisions and rules of procedures. However, inevitably, their position as bodies created by states, and relying on states’ cooperation on the one hand and seeking the effective protection of human rights on the other, raises a host of challenges in actual practice.

Human rights have an important dual function: they are claims based on particular values or principles and often also legal rights that entail entitlements and freedoms. Philosophical and political conceptions of human rights are broader than international human rights law, which is essentially a normative term referring to rights validated in recognised sources. While the two spheres are closely intertwined, they do not necessarily share a causal or automatic relationship, i.e. that every claim must transform into a legally recognised right. Nor is the relationship always harmonious. A legally recognised right may be defined too narrowly and may therefore exclude certain categories: for example, age may not explicitly fall within the purview of the right to non-discrimination, or conversely a recognised right may be wider than thin theories of human rights based on a limited number of core rights. Theories of human rights abound, including substantive (based on moral values or foundational postulates), formal (constructive, pragmatic, discourse), subaltern (human rights as distinctive practices born out of struggle) and post-modern (empathy for the other) approaches, as well as political theories, such as liberal or socialist notions of human rights. It is in particular the purported universality of human rights, i.e. their applicability to everyone, everywhere and anytime, that has given rise to enduring debates. Those often, somewhat misleadingly, labelled ‘cultural relativists’ have raised important challenges regarding the supposed origins, validity, scope of application and politics of human rights.

Victims’ rights, whether they take the form of a procedural right of access to justice or participation, or a substantive right to reparation, fulfil a number of important functions. Ideally, they allow victims to assert their rights, redress power imbalances manifest in violations, provide a measure of justice and furnish the victim(s) with the means to cope and rebuild their lives. They may also lead to a public acknowledgement of wrongdoing that recognises unlawful suffering, demonstrates society’s respect for, and solidarity with, the victim(s), and affirms the rule of law. In addition, victims’ rights play an important role in contributing to prevention through deterrence (punishment and/or payment of damages or other forms of reparation) and systemic changes to counter violations, such as legislative and institutional reforms. A series of open questions and challenges remain. Do the rights granted in various treaties and declarations translate into a right to reparation under international law, and, if so, does this apply in relation to all or only some particularly serious human rights violations? Who are the rights-holders and what are their entitlements? Recent developments also raise questions of coherence and effectiveness in light of the proliferation of victims’ rights in various bodies of international law.

Economic, social and cultural (ESC) rights include a number of entitlements, such as the right to work and the enjoyment of just and favourable conditions of work; the right to form and join trade unions; the right to social security; the protection of the family, mothers and children; the right to an adequate standard of living, which includes adequate food, clothing and housing and continuous improvement of living conditions; the right to the highest attainable standard of mental health; the right to education; and the right to participate in cultural life and enjoy the benefits of scientific progress. All these are protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR).

An examination of regional human rights systems suggests the following typical process. States agree on the need for closer regional cooperation if not integration. Human rights are accepted as one element of, and a yardstick for, the regional political order. A foundational human rights instrument is adopted. Further, a human rights body with a mandate to promote human rights and monitor states parties’ compliance with their treaty obligations is (eventually) set up. Over time, responding to demands and with a view to strengthening the effectiveness and credibility of the system, substantive rights are broadened and the role of victims (and others, particularly non-governmental organisations (NGOs)) in raising the issue of, or complaining about, human rights violations is enhanced. As the system matures this momentum eventually results in the establishment of a judicial body. Parallel efforts to foster regional political integration reinforce the importance of human rights at all levels as a marker of the system’s ability to provide a stable order based on the rule of law and the protection of fundamental rights.