Published On: November 3rd 2025
Authored By: Jinat Jahan
Eastern University
Abstract:
Human Rights is a rights which is exclusively designed to regulate the behaviour of the state and its citizen. But that daimension is change in past few years. Human rights is applicable where the rights of violation is occurred along with the situation of armed conflict. The most debate is that the Human Rights can apply in armed conflict. As armed conflict is most related to humanitarian law but the violation of rights Human Rights law also apply. In application Human Rights Law there are some complex matter. Human rights regulate and protect the individuals rights then in armed conflict how human rights work. In the role of International criminal court they actually protect the violation of human rights in armed conflict.
Human rights law is protect individuals rights but in recent few decades it’s apply when armed conflict. In armed conflict International or Non international conflict matter as non-International armed conflict is internal armed conflict of state or is individuals group. But international armed it’s should be two or more state. Some matter armed conflict is commend by the commanders or military. Internal armed conflict to difficult to protect human rights as non- international armed conflict.
Human rights and humanitarian law apply in armed conflict
International human rights law apply all the times whenever the human rights violate in war and peace. The humanitarian law only apply on the armed conflicts. There always a conflict of applying law in armed conflict, whether IHL or IHR which law should prevail in internal armed conflict. The doctrine that in situations of armed conflict, humanitarian law serves as a ‘lex specialis’ to human rights law.[1] But recent years Human Rights law and Humanitarian law both share the same purpose to preserving the dignity and humanity all over. International human rights law and international humanitarian law offer a series of protections to persons in armed conflict, whether civilians, person who are not actively participate in armed conflict.[2] Most of the body are supporting why it should and dose apply in armed conflicts and how both of the bodies concurrently work with each other in time they needs.[3]
Challenge to apply human rights in armed conflict:
The applicability of human rights law in armed conflict has been an extensive discussion for past few decades.[4]There is a debate that human rights law can apply once we enter in the armed conflict. The more recent Advisory Opinion on the Wall, together with the views of UN human rights bodies, have clarified that human rights law is not entirely displaced and can at times be directly applied in situations of armed conflict. [5]The apply of human rights law in real conflict situations some obstacle is there. The first serious difficulties is that extra territorial armed conflict. The problem of extraterritorial obligations is primarily of relevance to Non-international armed conflict, since it is in such situations that a State is likely to be operating outside its borders. By that using force to another country border side without the consent of the state is it legal. Some scholars is said positive approach if a state has effective control over their territory by oblige Human rights law. But in extraterritorial armed conflict they cannot violate the Human rights even if it’s only protect individuals rights.
The international armed conflict and Non international armed conflict human rights law is differently apply. In Non-International armed conflict there is state who control it their internal armed conflict. The International law does not apply.
The role of international criminal court in armed conflict:
In an international and non-international armed conflict International criminal court played a diversified role in insure justice. ICC has is jurisdiction over four matters like genocide, crime against humanity, war crimes and crime of aggression.[6] International criminal court has full jurisdiction to armed conflict expect crime of aggression.
But there is debate that international criminal court really work to stop armed conflict. There is no correct answer in any research paper. In the case of Northern Uganda and Darfur armed conflict situations the international criminal court is used as a political tools by the referring authority and the development only for the political institutions.[7] In Darfur case ICC has failed to accountable those who are responsible for the worst crime committed in Darfur also ICC is politically convenient and financially expensive.[8]
ICC process there prosecution by the Rome statute, Geneva conventions and many international treaties. But international criminal court is used by the highly political strong state to dominant the lower strong state. Specially ICC failed to stop the human rights violations. Many state are using their power and involved in war with other county just not war but killed the human, evicted them from their home, sexual violations and killed children. The human right to life is violated in this matter.
Still now ICC has limited jurisdiction in war crimes, crimes against humanity, and genocide; it does not extend to the crime of aggression. In the case of Russia Ukrian, ICC failed to stop crime of aggression in in ukrian. ICC still cannot issue warrant against Russia because ICC relies heavily on national authorities to apprehend suspects and transfer them to The Hague for trial.[9]
ICC is bound to protect the human rights:
International criminal court is established to regulate to war crime, crime against humanity, genocide. ICC is not neccessarly is bound to protect human rights but is play a vital role in protecting violation of human rights in armed conflict. As ICC is not enforce human rights treaties directly but indirectly protect the human rights. War crime often violates the right to life or killing the civilian, women and children or freedom of torture then ICC punish or regulate them by the using the Rome Statue article (5-8). ICC only punish for that crime and violation which is most serious. ICC does not protect all the human rights violation. In this matter ICC is not bound to regulate all the Human rights violation for its limited jurisdiction.
ICC in international armed conflict
International criminal court is failed to protect the Human Rights in international border. It’s has limited jurisdiction to regulated their frame work. International criminal court has to rely on Rome statue or Security Council to select the armed conflict matter. ICC has no power to directly action on the armed conflict state rather than they have to rely on that state authority or body to help that matter. The evidence collection, law enforce or arrest in matter ICC has to rely on the state corporation. ICC has no direct authority body in this matter. Sometimes ICC is vague in their decision matter as ICC control by the high political state. Also ICC is baised in their decision. Still now ICC mostly focus on the African state but it did not focus on the higher which is still now violate the human rights. ICC has only focused on the lower political state to control their power. So international armed conflict ICC has failed to protect human rights violation.
Conclusion:
The protect of human rights violation in armed conflict still now disorder. ICC is mainly process with three main factor genocide, war crime and crime against humanity. Apart from this international criminal court has limit jurisdiction on Human Rights violation. International Criminal court follow the rules of Rome Statue and the order of EU Security council. Still now in 20th century International Criminal court has not change their limitation power about the Human rights. ICC still now baised their decision, rely on the state corporation and influence by the higher political state. International criminal court is follow EU and Rome state others country does not fall that council. That’s why many county escape and deny their decision and regulation. On this matter ICC failed to punish the actual human rights violation person in armed conflict. To protect the human rights in armed conflict international criminal court have transparent in their decision and have a strong authority and universal accepted provision in armed conflict matter.
References
[1] William Abresch,” A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya,European Journal of International Law, Vol. 16, Issue 4, September 2005. P 742, para 2
[2] “INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT” published by United nations Human rights ,new york and Geneva ,2011
[3] Noam Lubel,”challenges in applying human rights law in armed conflict”international review of the Red cross vol. 87, December 2005, p.738, para 2
[4] G.I.A.D. Draper, “The relationship between the human rights regime and the laws of armed conflict,” Israel Yearbook on Human Rights, Vol. 1, 1971, p. 19
[5] ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 8 July 1996, IC] Reports 1996, para. 25
[6] https://www.icc-cpi.int/about/how-the-court-works
[7] Philipp Kastne,” Armed Conflicts and Referrals to the International Criminal Court: From Measuring Impact to Emerging Legal Obligations ,vol13,issue 3,July2014,page474 para1
[8] Ibid
[9] Iryna Marchuk and Aloka Wanigasuriya,” The ICC and the Russia-Ukraine War” vol26, issue4,july 5 2022, p 3 para 3
