Vol. 13 No. 11 (November 2003)

INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW, by René Provost, Cambridge Studies in International and Comparative law, Cambridge U.K.: Cambridge University Press, 2002. 418 pp. Cloth, £44, ISBN 0-521-80697-6.

Reviewed by Carla Thorson, Department of Political Science, UCLA. E-mail: cthorson@ucla.edu

Is there a meaningful distinction between international human rights and humanitarian law? René Provost of McGill University argues that despite the United Nations’ attempts to bring the two legal regimes together, significant differences remain. He offers an in-depth and innovative analysis of INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW that covers all of the relevant materials from the United Nations, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda. This work is among the latest in the Cambridge Studies of International and Comparative Law that focuses on comparative law at the national, regional, and international levels. It will appeal to all those with an academic interest in international human rights and humanitarian norms as well as to legal practitioners and international organizations involved in the operational norms of these two areas of law.

Both human rights and humanitarian law share the same normative framework and fundamental purpose—protection of the basic interests of the individual—but the classic view is that the two areas of law apply in different circumstances and to different relationships. On the one hand, human rights law is more readily applicable to periods of political stability, while humanitarian law deals with instances of armed conflict. The distinction to be drawn between the two is much greater, according to Provost. In times of peace and war, the power dynamics between the individual and the power-holder, he argues, are “vastly distinct.” In human rights norms, the individual has rights regardless of any association with a particular group or state; whereas humanitarian legal norms are targeted toward individual rights in direct linkage with a designated group or state. As a result, the contextual framework of these two areas of the law is different. In human rights law, there is a reasonable expectation that the individual can utilize institutional mechanisms like the judicial system to effectively protect their own interests, and all individuals should benefit from the same set of guarantees. This is simply not the case for individuals in the event of armed conflict, when order and institutions break down.

The humanitarian legal regime therefore focuses on the individual as an integral part of a community whose rights are in need of protection, and humanitarian law directs its attention squarely to those wielding power over the threatened communities.

Premised on this distinction, Provost’s analysis is divided into three parts. First, he engages in a thorough discussion of these differences in rights and procedural capacity, and the obligations and responsibilities of the two legal regimes. These two areas of international law do not exist in a vacuum disassociated from treaty obligations and international conventions governing state relations. Thus, the second section of Provost’s analysis is focused on reciprocity and the procedural questions that arise when human rights and humanitarian issues exist between states. He concludes that reciprocity plays a much greater role in humanitarian law than in human rights law, although it is on the increase in the latter. This has a direct effect on the applications of both types of law.

The third and final section turns to the difficulties associated with their application to widely varied circumstances. The standards applicable to armed conflicts and states of emergency are analyzed in order to draw attention to areas of legal indeterminacy. That is to say, not every norm of human rights or humanitarian law can be uniformly applicable to all conflict scenarios. Moreover, different actors may characterize the same situations differently. Particularly, in the case of armed conflict, the problems of characterization have implications for human rights or humanitarian laws and their application by international judicial institutions or third parties. This is also reflected in implementation patterns. Humanitarian law is traditionally handled through the protecting power system (third-party intervention), while human rights law is fostered through review bodies like the UN Human Rights Committee.

The case analysis and consideration of treaty articles throughout this work are extensive and well-documented. Provost’s analysis of the systemic differences between these areas of international law also raises questions about the extent to which it might be possible to merge the two. He concludes that such a blending would be likely to oversimplify and weaken both areas of international law, although there may be some incentives to coordinate operational norms from one to the other. For Provost, “each [human rights and humanitarian law] performs a task for which it is better suited than the other, and the fundamentals of each system remain partly incompatible with that of the other” (p.350). The book also offers some excellent incites into why these norms sometimes succeed and at other times fail.

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Copyright 2003 by the author, Carla Thorson.