Human rights are a special sort of inalienable moral entitlement. They attach to all persons equally, by virtue of their humanity, irrespective of race, nationality, or membership of any particular social group. Human rights belong to an individual as a consequence of being human. The term came into wide use after World War II, replacing the earlier phrase "natural rights," which had been associated with the Greco-Roman concept of natural law since the end of the Middle Ages. As understood today, human rights refer to a wide variety of values and capabilities reflecting the diversity of human circumstances and history. They are conceived of as universal Universality of human rights is controutrsial, applying to all human beings everywhere, and as fundamental, referring to essential or basic human needs.

The concept of human rights is based on the belief that every human being is entitled to enjoy her/his rights without discrimination. Human rights differ from other rights in two respects. Firstly, they are characterised by being:

• Inherent in all human beings by virtue of their humanity alone (they do not   have, e.g., to be purchased or to be granted);
• Inalienable (within qualified legal boundaries); and
• Equally applicable to all.

Secondly, the main duties deriving from human rights fall on states and their authorities or agents, not on individuals. One important implication of these characteristics is that human rights must themselves be protected by law (‘the rule of law’). Furthermore, any disputes about these rights should be submitted for adjudication through a competent, impartial and independent tribunal, applying procedures which ensure full equality and fairness to all the parties, and determining the question in accordance with clear, specific and pre-existing laws, known to the public and openly declared.

The idea of basic rights originated from the need to protect the individual against the (arbitrary) use of state power. Attention was therefore initially focused on those rights which oblige governments to refrain from certain actions. Human rights in this category are generally referred to as ‘fundamental freedoms’. As human rights are viewed as a precondition for leading a dignified human existence, they serve as a guide and touchstone for legislation.

The specific nature of human rights, as an essential precondition for human development, implies that they can have a bearing on relations both between the individual and the state, and between individuals themselves. The individual-state relationship is known as the ‘vertical effect’ of human rights vertical location has not elaborated to be clear for the students. While the primary purpose of human rights is to establish rules for relations between the individual and the state, several of these rights can also have implications for relations among individuals. This so-called ‘horizontal effect’ implies, among other things, that a government not only has an obligation to refrain from violating human rights, but also has a duty to protect the individual from infringements by other individuals. The right to life thus means that the government must strive to protect people against homicide by their fellow human beings. 

International Humanitarian Law and International Human Rights Law are so intertwined that it is quite essential to give a brief overview of their commonalities and differences so that one can distinguish the salient feature of each. What therefore becomes of much interest to us in this discussion is the question about how they differ since there are many things they share in common.

One of the major and important goals of the United Nations is the promotion of human rights and their observance by Member States. The Universal Declaration of Human Rights of 10 December 1948, the two International Covenants of 16 December 1966, one on Civil and Political rights, the other on Economic, Social and Cultural rights, and other treaties on specific aspects of human rights protection are the results to date of a major effort to strengthen the position of the individual in the face of State power.

Regional human rights agreements complete the picture of the efforts of affording safeguard to these fundamental rights. Human rights agreements and the relevant rules of customary law are also the ones intended to safeguard a series of individual rights from State abuse. The very important nature common to all those safeguards is that they are valid in all circumstances, at all times. Only in emergency situations and in strictly defined circumstances, known as situations of public emergency, do the different agreements allow for derogations from some of their provisions.

The treaties of humanitarian law, on the other hand, protect particularly vulnerable categories of persons from abuse of state power. Unlike human rights agreements which contain general rules applicable at all times, the protective rules and mechanisms of international humanitarian law are applicable only in time of war. That means, the application of international humanitarian law presupposes the occurrence of armed conflict and this makes its application to be limited to this exceptional circumstance. In this sense, it can be stated that international humanitarian law is that part of human rights law which is applicable in armed conflicts. In contrast, however, to the human rights or also referred to as named peacetime agreements, there can be no derogation under any circumstances from any of its provisions and will apply in almost all circumstances.

A further specificity of international humanitarian law is the fact that its provisions govern relations with the enemy. Members of the enemy armed inhabitants of a territory occupied by an enemy power are, for example, protected under the Fourth Geneva Convention, etc. Human rights agreements, however, affect above all the relationships between the authorities and citizens of the same State.

Owing to the fact that they are applied in different circumstances, international humanitarian law has not taken all the basic rights and freedoms guaranteed under human rights agreements and turned them into protective conditions in time of war. The protection of persons deprived of their liberty from torture and other inhuman treatment, for example, can be found in both branches of the law, for it constitutes an absolute right in the true sense of the words. International Humanitarian law does not, however, make provisions for the protection of the freedom of expression or movement, for example, since those freedoms have an entirely different meaning in a bellicose context. On the other hand, the treaties of humanitarian law contain sections which are foreign to human rights texts, such as the rules on the use of weapons.

Another possible difference is that international humanitarian law contains many more rules requiring the individual or the community to act than classic human rights law. This can be seen clearly in the 1864 Geneva Convention, Article 6, Paragraph 1 of which reads as follows: “Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for”. The law of Geneva presently in force contains a wealth of such directions for action although it cannot be said that the victim has a corresponding right to claim in court in the event of non-action.

International humanitarian law is often mentioned in the same breath as refugee law, the provisions of which apply whenever a person flees his homeland seeking protection in another country out of justified fear of persecution. Refugees exist in peacetime and in time of war. The Geneva Conventions contain some provisions which govern the specific situation of refugees in time of war but do not weaken the protection provided under refugee agreements. Moreover, refugees are entitled to the same protection under humanitarian law as other civilians affected by the consequences of hostilities.

Philosophers such as Grotius, took an interest in the regulation of conflicts well before the first Geneva Convention of 1864 was adopted and developed. In the 18^th century, Jean-Jacques Rousseasu made a major contribution by formulating the basic principle about the development of war between states as:

War is in no way a relationship of man with man but a relationship between states, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers (...). Since the object of war is to destroy the enemy state, it is legitimate to kill the latter’s defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives.

In 1899, Fyodor Martens laid down the following principle for cases not covered by humanitarian law: (...) civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of public conscience. This, also known as the Martens clause, was already considered a standard part of a customary law when it was incorporated in Article1, Paragraph 2, of Additional Protocol I of 1977.

While Rousseau and Martens established principles of humanity, the authors of the St. Petersburg Declaration formulated, both explicitly and implicitly, the principles of distinction, military necessity and prevention of unnecessary suffering, as follows:

 Considering: (...) That the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men;

That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.

The Additional Protocols of 1977 reaffirmed and elaborated on these principles, in particular that of distinction: (...) the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. (Art. 48, Protocol I; see also Art. 1, Protocol II).

There are also established underlying principles of proportionality that seek to strike a balance between two diverging interests, one dictated by considerations of military need and the other by requirements of humanity when the rights or prohibitions are not absolute. Different writers follow different approach in describing these principles, and for the sake of making a brief explanation of the subject matter we have preferred the one that divides them into seven principles tin reviewing  the rules in the past and present.

The first rule is that persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction. The second fundamental rule provides that it is forbidden to kill or injure an enemy who surrenders or who is hors de combat .The third one is the wounded and seek shall be collected and cared for by the party to the conflict which has them in his power. Protection also covers medical personnel, establishments, transport and material. The emblem of the Red Cross (Red Crescent, Red lion and sun) is a sign of such protection and must be respected.

The fourth rule reads: Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief. And fifthly is provided that everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed.  No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

The sixth one states that parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering. The seventh and the last fundamental rule provides that Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare the civilian population and property. Neither the civilian population nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.

The first and the main source of international humanitarian law is to be found in treaties. History tells that rules of International humanitarian Law, particularly rules on the treatment and exchange of prisoners and wounded, have since long been laid down in bilateral treaties. The systematic codification and progressive development of this branch in general multilateral treaty also started in the midst of the 19^th century, which is relatively early as compared with other branches of international law.

A salient feature of the treaties of international humanitarian law is that most often a new set of treaties are supplemented or replaced with more details earlier ones after major wars taking into account new technological or military developments. Treaties of international humanitarian law have therefore been accused of being “one war behind reality”. This is however true for all law and it is only rarely has it been possible to regulate or even to outlaw a new means or method of warfare before it has been applied. 

Today, international humanitarian law is not only one of the most codified branches of international law but its relatively few instruments are also rather well coordinated with each other.

Of all the treaties signed so far, the four Geneva Conventions of 12 August 1949 for the protection of the victims of war are making up the main sources of international humanitarian law. The first of these conventions is Convention for the Ameliorations of the Conditions of the Wounded and sick in Armed Forces in the Field. The second Geneva Convention is Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; and the third one is Convention relative to the Treatment of Prisoners of War; and fourthly there is Convention relative to the Protection of Civilian Person in Time of War.

These four Geneva Conventions have also been supplemented with the two Additional Protocols of 8 June 1977. One of which, Protocol I, is Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts; and Protocol II is Protocol Additional to Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts.

These treaties have the great advantage of putting their rules relatively beyond doubt and controversy, “in black and white”, ready to be applied by a soldier without needing first to make a doctoral research on practice. They, furthermore, legitimize their rules for the majority of “new states” which are able to influence them in the elaboration process and which can more easily agree to be bound by them in their frequently voluntarist approach.

The disadvantages of these treaties, as of all treaty law, are that they are technically unable to have a general effect-automatically to bind all states. Fortunately, most of the treaties of international humanitarian law are considered today among the most universally accepted treaties and only few states are not bound. 

It has also been provided that however important the treaty rules of international humanitarian law may be even if they constitute obligations erga omnes, belong to jus cogens and if their respect is not subject to reciprocity- as treaty law they are only binding on states part to those treaties and, as far as international armed conflicts are concerned, only in their relation with other states parties to those treaties. The general law of treaties governs the conclusion, entry into force, reservations, application, interpretation, amendment, modification of international humanitarian law treaties and even their denunciation, which however, only takes effect after the end of an armed conflict in which the denunciating state is involved. The main exception to the general rules of the law of treaties for international humanitarian law treaty is provided by that same law of treaties; Once an international humanitarian law has become binding for a state, even a substantial breach of its provisions by another state, including by its enemy in an international armed conflict, does not permit the termination or suspension of the operation of that treaty as a consequence of that breach.

Although international humanitarian law is a branch widely codified in widely accepted multilateral conventions, customary rules remain important to protect victims on issues not covered by treaties, when non-parties to a treaty are involved in a conflict, where reservations have been made against the treaty rules and also because of the fact that international criminal tribunals prefer to apply customary rules, and because in some legal systems only customary rules are directly applicable in domestic law. Given the time consuming nature and other difficulties of treaty-making in an international society with more than 190 members and the rapidly evolving needs of war victims for protection against new technological and other inhumane phenomena, the importance of custom, redefined or not, may even increase in this field in the future. This, therefore, indicates the fact that customary law comes to be another source of international humanitarian law.

This, however, doesn’t mean that there aren’t any difficulties in defining a certain practice in terms of whether it is a customary rule or not. Those who follow a traditional theory of customary law and consider it to stem from the actual behavior of states in conformity with an alleged norm face particular difficulties in the field of international humanitarian law. First, for most rules this approach would limit practice to that of belligerents. And this comprises a few subjects whose practice is difficult to qualify as “general” and even more as “accepted as law.” Second, the actual practice of belligerents is difficult to identify, particularly as it often consists of omissions. There are also additional difficulties, e.g., war propaganda manipulates truth and secrecy makes it impossible to know which objectives were targeted and whether their destruction was deliberate. Finally, states are responsible for the behavior of individual soldiers even if the latter did not act in conformity with their instructions, but this does not imply that such behavior is also state practice constitutive of customary law. It is, therefore, particularly difficult to determine which acts of soldiers count as state practice. 

Other factors must, therefore, also be considered when assessing whether or not a rule belongs to customary law: whether qualified as practice lato sensu or as evidence for opinio iuris, statements of belligerents, including accusations against the enemy of violations of international humanitarian law and justifications for their own behavior.  

To identify “general” practice, statements of third states on the behavior of belligerents and on a claimed norm in diplomatic fora have to be similarly considered. Military manuals are even more important, because they contain instructions by states restraining their soldiers’ actions, which are somehow “statements against interest.” Too few States, generally Western States, have, however, sophisticated manuals available to the public to consider their contents as evidence for “general” practice in the contemporary international community.

It is also logically argued and even said to be totally uncontroversial that most, but clearly not all, rules of the two 1977 Additional Protocols today provide a formula for parallel rules of customary international law. Taking an overall view of all practice it can, for instance be found that a rule of the two 1977 Additional Protocols corresponds today to customary law binding on all states and belligerents, because it codified previously existing general international law, or because it translated a previously existing practice into a rule, because it combined, interpreted, or specified existing principles or rules, or because it concluded the development of a rule of customary international law or finally because it was a catalyst for the creation of a rule or of customary international law  through subsequent practice and multiple consent of states to be bound by the treaty.

Custom, however, has also very serious disadvantages as a source of international law. It is very difficult to base uniform application of the law, military instruction and the repression of breaches on custom which by definition is in constant evolution, is difficult to formulate, and is always subject to controversy. The codification of international humanitarian law began 150 years ago precisely because the international community found the actual practice of belligerents unacceptable, while custom is, despite all modern theories, also based on the actual practice of belligerents.