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Max Planck Encyclopedia of Public International Law [MPEPIL]

Human Rights and Humanitarian Law

Robert Kolb, Pavle Kilibarda

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 01 October 2023

Civil and political rights — Economic, social, and cultural rights — Nationality of individuals — Combatants — Prisoners of war — Armed conflict, international — Care for the sick and wounded — Weapons — Customary international law — Writings of publicists

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  Definitions

The term human rights law (‘HRL’) encompasses all fundamental freedoms and all basic social, economic, and cultural rights recognized to each individual independently of nationality. The term international humanitarian law (‘IHL’) is today used in a broad sense (Humanitarian Law, International). It covers all the rules protective of potential or actual victims of armed conflicts, all the rules on the conduct of warfare, and all the provisions relating to the rights and duties of the armed forces towards the other party in case of armed conflict (Armed Conflict, International [‘IAC’]; Armed Conflict, Non-International [‘NIAC’]). Hence, IHL nowadays covers both so-called ‘Geneva Law’—protection of victims of armed conflicts (Geneva Conventions I–IV [1949])—and ‘Hague Law’—regulations governing the means and methods of warfare (see also Hague Peace Conferences [1899 and 1907]). It is doubtful whether it also reaches to some specialized areas of naval warfare, such as prize law. Conversely, it seems to be accepted that it does not cover neutrality law (Neutrality, Concept and General Rules; see also Neutrality in Air Warfare; Neutrality in Land Warfare; Neutrality in Naval Warfare). The terms ‘law(s) of war’ and ‘law of armed conflict’ are considered synonymous by the ICRC (Y Sandoz C Swinarski and B Zimmermann [eds] Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 [ICRC/Nijhoff Geneva 1987] xxvii) and scholars such as A Clapham (War [OUP Oxford 2021] 235, fn 2) and AA Bouvier (International Humanitarian Law and the Law of Armed Conflict [3rd edn Peace Operations Training Institute 2020] 12, available at www.peaceopstraining.org [accessed 16 December 2022]). Y Dinstein (Non-International Armed Conflicts in International Law [CUP Cambridge 2014] 3) believes that the term ‘humanitarian law’ could suggest that its rules are not binding, preferring the term ‘law of armed conflict’. Depending on the context, the terms ‘law of armed conflicts’ or ‘law of war’ could also be broader, precisely in that they cover all areas linked with wartime rights and duties of States (State) and to a certain degree also non-State actors.

The relationship between IHL and HRL is generally analysed in the context of a narrow definition of humanitarian law. In effect, the mutual relations between the two areas are most manifest in the context of the protection of potential or actual war victims. In this context the law deals in both areas with fundamental protective rights of the individual as against a State organ—or, sometimes, powerful civilians—vested with preponderant power and thus jeopardizing the physical and moral integrity of the individual concerned (see also Individuals in International Law). This entry thus addresses the core area of humanitarian law, whereas the relations between human rights and specific questions of sea warfare such as prizes, or with neutrality, shall be neglected.

B.  Historical Evolution of the Relationship

The precise relation of IHL and HRL and the reasons for them to draw closer to one another can be grasped only in the light of a historical analysis. Today, both branches of the law have reached such a degree of extension and detailed regulation, while governing in part the same facts, that isolation of one from the other is arguably no longer imaginable. But that has not always been so. IHL is a significantly older branch of international law than human rights law. In the era when the latter was still in the formative stage, the separation between both branches prevailed. Later, this separation gave way to an increasingly closer interaction of both. Separation has never been absolute, to be sure. However, the accent during the first period was on mutual segregation, while during the later it has been on ever-closer interaction.

1.  The Formative Stage of Human Rights Law (1945–50s)

There is no meaningful international HRL to speak of prior to 1945, and E Bates takes the view that ‘[i]nternational law was virtually a blank canvas as far as the protection of human rights was concerned’ (‘History’ in D Moeckli S Shah and S Sivakumaran [eds] International Human Rights Law [4th edn OUP Oxford 2022] 11) (History of International Law, 1648 to 1815; History of International Law, 1815 to World War I; History of International Law, Ancient Times to 1648). Some legal institutions may nevertheless be considered its forerunners. First, there was the minimum standard of treatment for aliens, protecting their freedom, physical integrity, property, their right to access to a tribunal, etc. There were also some collective rights, such as minority protection (Minority Protection System between World War I and World War II), but these depended on the existence of a treaty. Hence, such a protection existed only discriminatorily, according to the chances of war and the peace treaties having forced the regime upon some States. The minimum standard (Minimum Standards) was granted only to foreigners and precisely not to all human beings, thus opposing a fundamental aspect of HRL. The protection of minorities was based on political interests and was not equally applicable. It was only after the excesses witnessed in the 1930s under totalitarian rule, excesses further exacerbated by World War II, that in 1945 the time was ripe for a breakthrough. Thus, a matter which had theretofore always been considered as pertaining to the closest core of domestic jurisdiction, ie the relationship of the State with its own—apart from foreign—citizens, came to be regulated by international law (see also Domaine réservé). The Universal Declaration of Human Rights (1948) (‘UDHR’) is the most visible outward mark of this breakthrough.

During this formative time, HRL and IHL were separated, intellectually and in practice. Nothing illustrated this fact better than the almost complete lack of attention paid by the delegates to the contemporaneous conferences for the adoption of the UDHR and for the Geneva Conventions to the efforts of the other body. Many reasons explain this situation.

First, IHL—then called the law of war—was still essentially understood as military law. The Geneva Conventions, which were to spread the modern conception of humanitarian law, had yet to impact this deeply rooted conception and to make, out of a body of military law, a body of humanitarian law.

Secondly, HRL had yet to emerge legally. In 1949 there was hardly any positive human rights law. There were some more or less vague and aspirational provisions in the United Nations Charter, and also the UDHR as a recommendation of the United Nations (UN) General Assembly (United Nations, General Assembly). A customary law of human rights arguably did not exist (Customary International Law). Thus, HRL was at that time in statu nascendi and largely perceived as a still merely political-legal phenomenon. It is therefore understandable that a true legal interaction with the law of warfare, an ancient and well-settled branch of international law (notwithstanding its precariousness), could not at that time be envisioned.

Thirdly, the evolution of the two branches had hitherto been distinct. The law of war was one of the oldest branches of international law. Hence, the first rules of international law shaped by human groups were rules on warfare: armistices, truces, exchange of prisoners, prohibition of weapons, etc (Armistice; Prisoner Transfer; Weapons, Prohibited). Still at the times of the so-called fathers of international law—F de Vitoria, F Suárez, A Gentili, H Grotius—the treatment meted out for the rules of warfare quantitatively and qualitatively largely overshadowed the treatment given to the rules of peacetime. H Grotius wrote a ‘De Iure Belli ac Pacis’ and not a ‘De Iure Pacis ac Belli’. These rules on warfare gave rise to a distinct cast of profession, in the military departments of the States. These persons were intellectually and morally quite distant from the new human rights movement in 1945.

On the other hand, HRL is a product of the Enlightenment and has remained for centuries confined to the municipal law of the liberal Western world (International Law and Domestic [Municipal] Law). HRL is concerned with the political shaping of a society (see also Human Rights, Role of Non-Governmental Organizations). It touches upon the fundamental political-legal structure of a political body. Thus, if IHL—or the law of war—exhibited a high degree of technicality, HRL was since its inception essentially political law. It is understandable that a certain time was required in order to bring such different plants together by carefully and repeatedly combining their seeds.

10  Fourthly, there were different ideological obstacles for the two branches to draw closer. The respective guardians promoting HRL and IHL distrusted to some extent the law sponsored by the other side. The protector of IHL was the International Committee of the Red Cross (ICRC); the promoter of HRL, at the universal level, was the UN. The ICRC feared that any contamination of IHL with HRL could politicize the former by the latter and hence bring about a significant decrease in the effectiveness of IHL. The UN itself was felt to be a highly political body, especially in the field of HRL. One of the main principles of humanitarian action is pronounced political neutrality, which is also among the main principles of the Red Cross Movement (see also International Red Cross and Red Crescent Movement). IHL is thought to apply amidst the greatest ideological rift imaginable, namely war. If it does not keep ideologically neutral, confining itself to technical rules shaped around the equilibria of warfare, it will not be respected by the belligerents.

11  Conversely, the UN had ideologically little sympathy for the law of war. Like the League of Nations, it had been created with the main aim to keep the peace (see also Peace, Right to, International Protection; Peace, Threat to the). It therefore found it hard to care about a law which seemed to imply that it would be unable to keep the peace. The times of the law of warfare seemed past: thenceforward, there should be only police enforcement action by armies of the UN. It was for substantially the same reasons that the International Law Commission (ILC) refused to put the law of war in the list of the subjects ripe for codification (see also Codification and Progressive Development of International Law). It stated thus: ‘public opinion might interpret its action as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for maintaining peace’ (UN ILC ‘Report of the International Law Commission on the work of its first Session, 12 April 1949’ [1949] 281 para. 18).

12  Fifthly, there was the conception, still dominating in 1948-49, that human rights applied in peacetime, whereas IHL applied to armed conflicts and war. Peacetime law and wartime law were still to a significant extent thought to be mutually exclusive blocks, separated by a watershed: ‘inter pacem et bellum nihil est medium’ (‘there is no middle ground between war and peace’; H Grotius ‘De Iure Belli ac Pacis Libri Tres’ in JB Scott [ed] Reproduction of the Edition of 1646: The Classics of International Law vol 1 [WS Hein & Co New York 1995] lib III, cap XXI, para. 1; translation in JB Scott [ed] The Classics of International Law [Oceana Publications New York Reprinted 1964] vol 3 The Translation Book 1 832). It is only because of the many civil wars taking place after 1945 that it became possible for the two branches to draw closer. This is how the concept of ‘human rights in armed conflict’ took shape during the 1960s. It is true that, to some extent, HRL is ideally based on conditions prevailing during peacetime. Thus, HRL works normally with generic formulae granting fundamental subjective rights. These formulae will need concretization in context, and especially a process of balancing up of different interests and multiple social and individual aspects relevant to the point at issue. The necessary balancing and synthesis of these positions presuppose regular social organs, namely tribunals, entrusted with the task of performing through individual decisions this constant process of concretization. This presupposes ideally a time of peace.

13  Conversely, IHL is essentially framed as objective law setting out in some detail the rules of behaviour of the different actors during an armed conflict. It cannot be expected that the military will balance open-ended normative messages in context to shape more concrete rules. On the contrary, the military must know with some degree of precision what is required of it in a situation of urgency such as that of armed conflict, where there is neither time nor resources for subtle legal-political weighing of positions. Consequently, HRL works with supreme subjective constitutional rights, whereas IHL works prevalently with objective rules of behaviour of an administrative law type (although clauses and more open-ended provisions are by no means foreign to it).

14  Sixthly, there were other differences felt between the two bodies of law, for example regarding the State organs each of it addresses. HRL was held to apply to all the organs of the State, being a sort of transversal or general law of unlimited permeating force. IHL, conversely, was seen as applying specifically to one organ of the State, namely its military forces.

15  The net result of all these centrifugal forces of tradition, ideology, and construction was a tendency towards separation and a considerable intellectual and practical rift between the two areas of HRL and IHL. But this situation was not to last. Various silent forces operated underneath and eroded the segregation.

2.  Breaking the Ice—The End of the 1950s to 1990

16  According to the mainstream understanding of the relationship between IHL and HRL, two main tectonic forces slowly operated in overcoming the rift between these two branches of law. The first was the intellectual and practical shift inaugurated by the adoption of the Geneva Conventions, which started to make itself felt in the 1950s. The second was the decrease in the number of international wars and the parallel explosion in the number of civil wars.

17  First, there was the erosive impact of the Geneva Conventions. Before World War II, the main regulations on the law of war were to be found in the various Hague Conventions (1899, 1907). 1907 Hague Convention IV, with its annexed regulations respecting the law of land warfare, was the most important. Although a limited degree of overlap cannot be denied, the focus of these conventions is different from that of the Geneva codification of 1949. The work of The Hague is still permeated by conceptions of the nineteenth century. The Hague law seemingly takes for granted that the contacts of a foreign military force with adverse civilians will be very limited and transient; consequently, it was not necessary to provide tight and detailed regulation of this matter. The fragmentary and short rules on the law of occupation in the quoted regulations testify to this (Occupation, Belligerent; Occupation, Military, Termination of; see also Occupation, Pacific). Hence, there was hardly a sufficient body for preserving the rights of civilians. The stress of the Hague Conventions is thus primarily on the means and methods of warfare, ie on military law.

18  With the atrocities committed by Axis Powers during World War II against civilians—eg in occupied territories—but also against other persons such as prisoners of war, the focus changed. The Geneva Conventions place much greater emphasis on the humanitarian protection of a series of so-called protected persons, ie the potential or actual victims of war. These protected persons are the sick, injured, or shipwrecked combatants (Wounded, Sick, and Shipwrecked); prisoners of war; civilians belonging to the hostile party and some related persons in need of protection (Civilian Population in Armed Conflict). The new humanitarian perspective is particularly visible with the fourth Convention, which was an entirely new instrument and not simply a revision of earlier treaties like the first three. Moreover, in an attempt to leave no gaps, the regime was tightened up by detailed regulation. This regulation is additionally locked up against any temptation of evasion by non-derogation clauses such as those to be found in Arts 6 and 7 Geneva Conventions I–III and Arts 7, 8, and 47 Geneva Convention IV. The focus is now placed on the protection of certain individuals in need of it because they are opposed to the powerful military organs of an adverse State. This protection operates by imposing on the belligerent parties a series of duties, and, concomitantly, by granting protected persons certain fundamental rights.

19  The bridge to human rights was here particularly easy to erect. It was particularly under the guise of Geneva Convention IV—the one which by its structure is nearest to HRL—that since the 1950s IHL has interacted with HRL. The focus of the Geneva Conventions on the protection of persons, and especially civilians, opened a potential common area, which was progressively populated as the new ‘Geneva approach’ prevailed. With regard to territories occupied by Israel after the Six-Day War, this new approach of mixing HRL and IHL for the protection of civilians has often been invoked by legal scholars and has also been applied by the Israeli High Court of Justice in the Targeted Killings case (Israel, Occupied Territories; see also Arab-Israeli Conflict).

20  The second essential factor is the increase in the number and duration of civil wars, ie non-international armed conflicts, which coincided with a decrease in the number of international armed conflicts. In the wake of wars of national liberation of colonial people, in consequence of the formation of many new States with weak social cohesion and structure, a long series of civil wars broke out in Africa, Asia, and the Middle East (see also Decolonization; New States and International Law). Such wars loomed large also in Latin America. The civilians suffered massacres, starvation, displacement, and many other deprivations of rights (see also Gross and Systematic Human Rights Violations; Internally Displaced Persons [IDPs]). One may just evoke the terrible civil war in Nigeria–Biafra, 1967–70 (Biafra Conflict)—whose cruelty fuelled the request for relief actions in the Western world (see also Humanitarian Assistance, Access in Armed Conflict and Occupation). An IHL of non-international armed conflicts had to be developed to grant some protection to civilians in such contexts. That happened with the adoption of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (‘Additional Protocol II’; Geneva Conventions Additional Protocol II [1977]). It stands to reason that HRL could easily apply to such situations. Civil war takes place within a State. The State driven into civil war continues to be bound by human rights instruments. The only step that must be taken is to define which human rights are applicable only in peacetime, and which are applicable also in times of emergency (Emergency, State of) and civil war. From there, a doctrine of non-derogable human rights—rights which remain applicable in cases of armed conflict and other situations of emergency—was developed. It soon found a positive resonance in a series of UN reports and in the case-law (see Doswald-Beck and Kolb [2004] 427–56; see also Oraá [1992] 87–127). The technical and intellectual distance between the IHL of non-international armed conflicts—centred on the protection of ‘civilians’—and HRL in states of emergency—centred on the protection of the human person in wartime—was so thin that an interaction of the two bodies was unavoidable. Hence, it comes as no surprise that, since the UN Conference on Human Rights held in Tehran in 1968—with its ‘Resolution XXIII on Human Rights in Armed Conflicts’ of 12 May 1968—the question of respect for human rights in armed conflicts has become a matter of constant study and action by the UN and other international bodies.

21  The link between IHL and HRL has thus been firmly established. Moreover, HRL became the driving force for the further evolution of IHL within the framework of the UN. The ICRC itself was compelled to recognize this propelling force of HRL on IHL (see International Committee of the Red Cross ‘La Croix-Rouge et les droits de l’homme’ [September 1983] UN Doc CD/7/1/1 [Summary] 20).

3.  The Period of Progressive Interaction (1990 up to Today)

22  During this period, the signs of progressive interaction between IHL and HRL—based on their common fundamental aim of protecting the human person—come to an apogee. The extraordinary momentum HRL has gained since 1990 reinforces its lead in the evolution of the law. Emergent international criminal law (‘ICL’) also heavily impresses its stamp on IHL. The main reasons for this evolution towards a closer knit between IHL and HRL are mainly the following: (1) the constant and considerable growth of HRL has brought that subject matter to span over all areas of international regulation, and in particular in times of armed conflict, where the vulnerability of the actual or potential victims of war is proverbial; (2) the many control organs of HRL (courts, council, committees, etc) were regularly invited to express on issues straddling HRL and IHL and did so on many occasions; (3) because of the greater role of jurisprudence, HRL evolved more easily and helped to develop IHL (the constant flow of HRL case-law allows an extraordinary degree of adaptation of this body of law, whereas IHL is mainly contained in conventions going back as far as 1907 or earlier); and (4) the role of modern armies has evolved to emphasize many different tasks, such as the provision of humanitarian aid, guarding checkpoints, participating in the fight against terrorism, etc, which are more HRL-sensitive. Thus, the main agent for the application of IHL has also become an agent active in areas where HRL reigns.

23  Much of the impetus for expanding HRL application into armed conflicts stems from the perceived deficiencies and gaps in the regime governing NIACs. Both Common Art. 3 and Additional Protocol II establish minimum guarantees for persons not taking an active part in hostilities. The latter further develops certain aspects of the law, specifically in relation to the rights of detainees, penal prosecution, medical and religious personnel, amnesties, etc. However, Additional Protocol II does not apply to all NIACs, and even when it is applicable, its regime is much more limited than that of IACs or of IHL in relation to several important questions, chiefly deprivation of liberty. Similarly, NIAC treaty law contains no provisions on war crimes. An initial strain of thought that is still prevalent in some legal circles therefore insisted on ‘mirroring’ IAC solutions in NIAC situations. This is reflected in the jurisprudence of criminal tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), which accepted in the Tadić Case of 1995 the idea of war crimes committed in non-international armed conflicts (Prosecutor v Tadić [Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction] IT-94-1-AR72 [2 October 1995] paras 71–74). When the UN Security Council (United Nations, Security Council) was faced with the massacres in the former Yugoslavia (1991–95), it called on all the parties to respect IHL and HRL in general, without any qualification (see also Yugoslavia, Dissolution of). According to traditional criteria, the conflict in the former Yugoslavia was a mixed armed conflict, ie a complicated net of relations having here the complexion of an IAC, there the complexion of a NIAC. However, the international community found it shocking that a civilian should be entitled to a wholly different extent of legal protection dependent on the fortuitous fact that some foreign involvement existed in a given area, rendering the conflict international. It preferred to ensure unique standards of protection throughout the territories stricken by conflict—namely, those of IACs and not NIACs.

24  Another view emphasized the difficulties in distinguishing NIACs from situations of internal disturbances and tensions. A natural solution to filling NIAC gaps was thus to be found in HRL. This eventually led to the recognition that not only the law of NIACs, but also that of IACs could be reinforced by HRL provisions. This does not exclude transplanting IAC rules to NIACs in relation to matters such as war crimes, but differences between the two strains of thought may certainly arise. For example, gaps in the NIAC detention regime may be filled either by references to the IHL of IACs or to HRL, and this is where the two doctrinal approaches commonly differ.

25  Reliance on HRL is gaining considerable ground due to the jurisprudence of human rights bodies and the efforts of human rights experts. When confronted with situations where civilians are subject to attacks—which is the prevalent problem in modern warfare—human rights bodies spin HRL and IHL together to reinforce their individual protection through joint application. The report on the human rights situation in occupied Kuwait presented by W Kälin to the UN Commission on Human Rights expressed this position well: IHL and HRL are so interwoven that they can no longer be disentangled (UN Commission on Human Rights Special Rapporteur W Kälin ‘Report on the Situation of Human Rights in Kuwait under Iraqi Occupation’ [1992] paras 33–34; see also Iraq-Kuwait War [1990–91]; United Nations Commission on Human Rights/United Nations Human Rights Council). The same two-tier approach could be observed in the context of the Guantánamo Prison (Guantánamo, Detainees) or in the report of the UN Fact-Finding Mission to the Gaza Conflict (‘Goldstone Report’) (Fact-Finding). Aspects taken from Geneva Convention III of 1949 on prisoner of war status are intermingled with human rights issues. The International Court of Justice (ICJ) itself resorted to HRL to reinforce IHL in the Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) (‘Israeli Wall Advisory Opinion’) and the Armed Activities on the Territory of the Congo Cases. The Court applied IHL and HRL side by side, first to the occupied Palestinian territories (Palestine), and then to the situation created by the invasion of a part of the territory of the Democratic Republic of the Congo by Ugandan armed forces (Congo, Democratic Republic of the).

26  This historical sketch shows how there has been a legal, sociological, and moral reshaping of the relations between the two areas of the law. In 1945, IHL and HRL were sometimes distant as Scylla and Charybdis; today, according to a prevalent view, they are as inseparable as Castor and Pollux.

C.  Traditional Positions Taken in Legal Writings

27  All logically possible positions concerning the relationship between the two poles of IHL and HRL have been defended in legal writings. First, it has been said that IHL and HRL are completely separate and should remain so. Second, it has been affirmed that IHL and HRL law entertain specific relationships of complementarity. Third, it has been held that IHL and HRL are but two branches of the same tree and that they largely merge into one another. These doctrinal debates have been quite heated in the past (see also International Legal Theory and Doctrine) and, while largely subsiding, still persist in some expert circles. In principle, the close ties between both branches have been recognized in mainstream scholarship and most authors avoid taking a very dogmatic stance on their relationship.

28  The ‘separatist’ view insists on understanding the relationship between the branches along similar lines as this was the case in the years after World War II. According to this understanding, IHL does not mix well with the more politicized rules of HRL. One may here quote authors such as H Meyrowitz, KD Suter, or M Mushkat (see the Select Bibliography). This position continues to remain widespread among American military lawyers and is espoused in the latest edition of the United States (‘US’) Department of Defense Law of War Manual (Department of Defense Washington June 2015, updated December 2016, 21ff). Separatist views are sometimes defended on humanitarian grounds as the authors may believe that IHL is better adapted and ultimately more protective in armed conflicts than HRL.

29  The ‘complementarists’ base themselves on the idea that both branches have a different root, different approaches, different environments, and different functions. However, they see a complementarity between them regarding specific points where one branch can be called to complete the other. Thus, if IHL makes reference to ‘fair trial’, it is obviously possible to take stock of human rights case-law to give a more specific meaning to that concept (Fair Trial, Right to, International Protection). Authors belonging to this school of thought are D Schindler and E David.

30  Finally, the ‘integrationists’ are prepared to push further the merger between both branches. They envision them as belonging to a common branch, as a fork with two limbs. For some, the integration is pursued vertically, by subjecting one branch to the other. Thus, IHL is either a province of HRL writ large—AH Robertson—or HRL is a province of IHL writ large—J Pictet. For others, the integration is rather to be performed horizontally. There is a continuum between HRL, HRL in cases of emergency, and IHL. Hence, these three merge into one another in differing combinations according to the practical needs at stake. This is the approach of S MacBride, GIAD Draper, or W Kälin in the ‘Report on the Situation of Human Rights in Kuwait under Iraqi Occupation’ submitted to the UN Commission on Human Rights.

31  To the foregoing, it must be added that the scope of application of HRL was broadened by the admission of extraterritorial application of human rights wherever there is effective control over territory or persons by a State organ (Human Rights, Treaties, Extraterritorial Application and Effects). This extension allowed envisaging the application of HRL outside of the territory of the State in areas of conflict abroad. This fact was important for a closer integration of HRL and the IHL of international armed conflicts (see General Comment No 31 of the Human Rights Committee of 29 March 2004 [‘General Comment 31’]; Human Rights Committee; Israeli Wall Advisory Opinion paras 101–13, 127; etc). It is to be noted that States such the US, Russia, and China are reserved regarding this type of extraterritorial application of HRL. The main argument raised against that course is that the human rights guarantees are due essentially within the zone of jurisdiction of any State, which is its own territory (Jurisdiction of States). This restrictive reading has been rejected by international jurisprudence (see eg UN HRC ‘Communication No R 12/52, López Burgos v Uruguay [29 July 1981] GAOR 36th Session Supp 40, 176; Al-Skeini and Others v The United Kingdom [ECtHR] [7 July 2011] App 55721/07 Reports 2011-IV 99; Request Made by the State of Colombia concerning State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity [Advisory Opinion OC-23/17] IACtHR Series A No 23 [15 November] 2017). The US similarly rejects the applicability of HRL in times of armed conflict.

D.  The Relations between International Humanitarian Law and Human Rights Law

32  For a time, the legal approach to the relationship between both bodies of international law has been characterized by broad and general compartmentation, such as separation, interaction, and merger; or, later, by the lex specialis construction. In more recent times, after the turn of the millennium, these broad categories have lost much attraction. A general category which remains relevant in practice is the sweeping one of ‘interaction’. But interaction occurs in very manifold ways and the legal analysis has thus been progressively fragmented, scattered, and concentrated on specific issues and conflicts of particular norms or obligations. There are thus two phases in the development of the relationship between these two bodies of law: an older, more conceptual one, and a more recent, fragmented one. Overall, it seems that ordering in categories has left place to boundless particular topoi. This also means that the issue is now usually approached less in a top-down perspective, and more in a grassroots inductive approach, where the particular problem is the focal point of reflection.

1.  Traditional Categories of Ordering: The Legacy of the 1980/1990s

(a)  The ‘Subsidiary Application’ Approach

33  HRL is of universal—ratione materiae—and general—ratione personae—application (see General Comment 31). IHL is more specialized: substantively, it applies to situations of armed conflict. In short: the prevailing view is that IHL is applicable in armed conflicts and that HRL is applicable in all situations. Thus, IHL does not apply, for example, in situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, terrorist attacks, etc (see also Insurgency; Terrorism). Conversely, HRL will apply also to such situations. In these cases, HRL displays much the same function as common Art. 3 Geneva Conventions I–IV does within the body of IHL: it formulates a subsidiary rule, filling the gap in protection left open by that body of law. The same applies when an armed force is no longer a belligerent occupant, but remains in foreign territory at the invitation of the local government (Governments; see also Intervention by Invitation). Again, HRL may continue to apply to its acts and omissions, whereas IHL will cease to apply. Thus, one may say that HRL borders IHL on all sides and ensures the existence of humanitarian standards in all cases where the latter does not apply. Once the borders of IHL are crossed, one ends up in the province of HRL assuring a subsidiary application of certain humanitarian standards. The famous Martens Clause can be read in a modern context as providing for such a function of human rights, when it recalls that ‘in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience’ (Preamble Protocol II). It has however to be recalled that IHL may also apply by way of special agreements to situations where ex lege it would not automatically apply. The parties can agree to take over some rule of IHL to situations beyond their formal scope of application (see Art. 6 Geneva Conventions I–III and Art. 7 Geneva Convention IV). Thus, the protections due to prisoners of war may be extended to the benefit of some captives in a NIAC, as was done in the Spanish Civil War (1936–39). In all these situations the scope of application of IHL is extended with effect limited to a single case.

34  Examples of the subsidiary application of HRL when IHL does not apply can be found in all cases of public emergency not amounting to an armed conflict, eg the Greek case (1967–69), after the coup d’état by a military junta, or the numerous Latin American situations of emergency, such as that in Uruguay in the 1970s.

(b)  The ‘Renvoi’ Approach

35  The technique of ‘renvoi’ is most often visible when IHL indirectly references HRL—sometimes just a matter of interpretation. Thus, when IHL guarantees a ‘fair trial’ or otherwise foresees legal proceedings (see eg Art. 3 Geneva Conventions I–IV; Arts 5 (2) and 99–108 Geneva Convention III; Art. 43 Geneva Convention IV), HRL standards may be invaluable to define more precisely the requirements of such a trial. When IHL provides for the detention of persons (see Arts 21–48 Geneva Convention III; and Arts 76, 78, 79–135 Convention IV), HRL standards may help to substantiate the rights and duties involved as a matter of IHL. Sometimes the implicit ‘renvoi’ may be bolder. In the case of occupation, the fundamental guarantees of the civilians are a mix of IHL and HRL. Practice with respect to Israeli occupied territories shows that very clearly. Similarly, in the Furundžija case, an ICTY Trial Chamber examined and directly drew from HRL to define torture in IHL (paras 134ff; see also Torture, Prohibition of). The US Law of War Manual, which still emphasizes the relevance of lex specialis, accepts HRL standards for IHL when these are more directly referenced in the latter (at 13–14).

36  The ‘renvoi’ can obviously also be reversed and go from HRL to IHL. Thus, according to the ICJ, the non-derogable ‘right to life’, enshrined in Art. 6 International Covenant on Civil and Political Rights (International Covenant on Civil and Political Rights [1966]), continues to apply in times of armed conflict (Life, Right to, International Protection). However, its precise content is influenced by the war. According to the ICJ in its Nuclear Weapons Advisory Opinions, IHL constitutes in this situation a lex specialis which must be taken into account in order to be able to define what constitutes an ‘arbitrary deprivation of life’ in this very context (Legality of the Threat or Use of Nuclear Weapons [Advisory Opinion] para. 25; see also Israeli Wall Advisory Opinion para. 106). This idea of a lex specialis is however not very precise. Both branches and their norms are here simply coordinated as a matter of interpretation (see also Interpretation in International Law). It is thus not so much a matter of putting one source in the place of the other—which is the traditional meaning of the lex specialis rule—but rather of complementing both with each other in the context of a proper interpretation in a specific situation. Another example where IHL serves the interpretation of HRL can also be found in the case Bámaca Velásquez v Guatemala of the Inter-American Court of Human Rights (IACtHR).

37  Such ‘renvois’ take place in the area of rights protected by both sources, ie in the area where IHL and HRL overlap. Such double protected rights are, for example, the right to life—against arbitrary deprival; the prohibition against inhumane and degrading treatment—assaults on physical and mental integrity; the rights against arbitrary arrest and detention (Detention, Arbitrary); rights related to judicial guarantees; rights related to the use of firearms by enforcement officials; rights related to medical assistance and ethics, etc.

(c)  The ‘Cumulative’ or ‘Merger’ Approach

38  The cumulative or merger approach could for a time for example be seen in the ‘human rights in times of armed conflict’-movement which started in 1968. It produced various texts at the international level, namely a great series of relevant resolutions (the most important of them are quoted in Schindler and Toman [2004] 345–57). Thus, a sort of particular branch of HRL has evolved, namely an HRL for emergency and armed conflict situations. It layers some IHL on top of HRL provisions. The various HRL bodies eventually had to consider applications for human rights violations in contexts of civil war, and later of international armed conflicts. This has been the case for the UN Treaty Bodies (Human Rights, Treaty Bodies), namely the Human Rights Committee, the Inter-American Commission on Human Rights (IACommHR) and IACtHR, the African Commission on Human and Peoples’ Rights (ACommHPR), and even the European Court of Human Rights (ECtHR).

39  For fear of too bold an action in a branch of law—IHL—on which these bodies lack subject-matter jurisdiction and expertise, the regional human rights bodies showed studied restraint in directly applying IHL. They normally held that their jurisdiction was limited to the rights enshrined in the human rights treaty whose application they have to control, and did not extend their scrutiny to IHL. A converse example is the Juan Carlos Abella v Argentina case at the IACommHR. There, IHL was directly applied, namely common Art. 3 Geneva Conventions (see Juan Carlos Abella v Argentina [1997] para. 156; overruled by the IACtHR). To a large extent the body of ‘human rights in armed conflicts’ simply took the place of IHL in NIAC. Conversely, a much more pronounced ‘substantive’ merger took place in UN reports on extra-judicial executions or on specific armed conflicts—such as Iraq (Iraq, Invasion of [2003]) or Sudan: UN organs are not constrained by the same treaty restrictions as to the material scope of their jurisdiction.

40  In some cases, human rights bodies have gone so far as to ignore the application of IHL altogether. IHL has been developed as an objective legal regime that applies regardless of the position of the parties involved once certain conditions have been met. Nevertheless, whether the requisite circumstances have arisen can sometimes be difficult to ascertain, leaving conflict classification in good measure to the appreciation of the belligerent parties; this is particularly true in situations of NIAC. In a string of cases related to armed conflicts in Turkey and Chechnya, the ECtHR chose to remain agnostic to IHL and simply applied peacetime HRL standards faced with respondent governments that did not themselves invoke IHL (see eg Ergi v Turkey). In some of them, the Court curiously seems to refer to IHL standards, such as on precautions, while ostensibly applying a law enforcement paradigm (eg Isayeva v Russia). Such an application of HRL does not necessarily derogate from IHL—as its less stringent standards are ipso facto respected when the more demanding elements of HRL have been met—but it bolts the door open to a ‘pick and choose’ approach where HRL and IHL rules and standards could be arbitrarily mixed. Furthermore, the application of HRL right to life standards to a conduct of hostilities situation—coupled with the use of wartime terminology—is legally and practically unusual, and raises concerns regarding how well-placed HRL bodies are to become embroiled in armed conflict matters.

41  Human rights have otherwise been applied in many situations of armed conflict (see Meron [2003] 73–81); and, regularly, IHL has been used to interpret or give the proper legal flavor to the applicable human rights provisions, whether avowedly or not. The precise conditions of derogability and of scope in such contexts were progressively spelled out. One may quote, as for the ECtHR, the Cypriot cases, the Turkish cases, and the Chechen cases, eg Isayeva v Russia. At the Inter-American level, one may quote such cases as Coard, Tablada, or Las Palmeras (see Sassòli Bouvier and Quintin [2011] vol II 1387–98 and vol III 1670–81, 2281–87). For the ACommHPR, see eg the case Commission Nationale des Droits de l’Homme et des Libertés v Chad of 1995. Additionally, international armed conflicts have progressively found their way into the case law of human rights bodies. One may recall the case of Banković v Belgium at the ECtHR, a case which arose from the bombing by the North Atlantic Treaty Organization (NATO) in Serbia, or the various follow-ups concerning Guantánamo. One may also think of the remedies granted to Iraqis against acts of the occupying forces in Iraq.

42  Another feature of the ‘merger’ approach was the emergence of ‘minimum humanitarian standards’ based on a complex mix of IHL and HRL. The starting point for these developments was a paradox. In cases of emergency which do not amount to an armed conflict—ie which remain internal disturbances and tensions—the derogations from, and suspensions of, human rights applicable in peacetime may bring about standards of protection which are lower than those which would prevail if a full-fledged armed conflict had arisen. Emergency HRL—non-derogable rights—proved in some cases weaker than IHL for non-international armed conflicts. This is paradoxical: the law is more protective in the situation—armed conflict—which, on account of its gravity, would seem to allow for greater State freedom, rather than the reverse. Other potential gaps have been raised. A treaty may not have been ratified, or it may be burdened with reservations (Treaties, Multilateral, Reservations to), non-State actors may not be bound by it, etc. Hence, efforts have been taken to elaborate minimum rules applicable in any situation—peacetime, emergency, and armed conflict. These minimum rules consist of a complex merger of HRL and IHL. The apex of these efforts is the Declaration of Minimum Humanitarian Standards of 2 December 1990 (‘Turku Declaration’), adopted at an expert meeting in Finland and proposed as a model to be taken into consideration by the UN and other international organizations. The Turku Declaration is concerned with issues of fair trial, of limitations on means and methods of combat, with prohibition of displacement and deportation, and with guarantees of humane treatment. It has not yet achieved the success which its drafters had hoped it would.

43  There exists no universal guidance on how to regulate the cumulative application of IHL and HRL in relation to common subject matter. If, as previously discussed, IHL and HRL may peacefully coexist in the same area while dealing with their own matters, there are different ways in which their unanimous application could be resolved. Here, it is necessary to distinguish situations of complementarity and conflict of norms. When IHL and HRL are complementary—for example, when prohibiting the torture of detainees—there is no need for norm conflict resolution as by respecting the IHL norm, the belligerent party is also respecting the HRL norm, and vice versa. In other situations, when the application of HRL and IHL lead to different results—as in the case of intentional killing or deprivation of liberty—it is practically or even conceptually impossible to respect both bodies of law. (1) The lex specialis principle (favouring IHL over HRL) has been commonly invoked in this regard, in particular because of its invocation by the ICJ in the Nuclear Weapons case. However, even at this watershed moment, the World Court did not apply lex specialis as otherwise known to international lawyers by applying one norm at the expense of the other, but by re-interpreting the lex generalis (HRL) rule and then applying it in unison with the lex specialis norm. HRL is thereby not derogated by IHL, but its content is modified to establish an ‘HRL of armed conflicts’. A similar approach would be adopted by the ECtHR in Hassan v The United Kingdom, when the Court decided that the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) needed to be read in harmony with other norms of international law, specifically IHL (the ‘harmonization approach’). The lex specialis phrase, considered by some a misnomer (at least in relation to the classical lex specialis derogat legi generali), appears therefore to be losing ground in jurisprudence. (2) M Sassòli and LM Olson (‘The Relationship between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ [2008] 90 IRRC 599–627, 613ff) suggest that, in some situations, not only does IHL not enjoy interpretative dominance over HRL, but the reverse is true. HRL provisions may be either more specific (lex specialis) or more recent (lex posterior) and therefore more amenable to the contemporary sensibility than the analogous IHL provision. In relation to procedural safeguards for civilian detainees, whose internment must be reviewed at least twice a year according to Art. 43 Geneva Convention IV, it is often raised that the more frequent review required by HRL should take precedence. To what extent this is a matter of harmonious interpretation favouring HRL as opposed to HRL derogating IHL is a matter of interpretation.

2.  The Contemporary Landscape of IHL and HRL Interaction

44  As has been said, these and other categories have progressively been eroded and analysis has ushered in a rather unbounded playfield of an endless number of interactions and specific issues. There remain however certain general matters which constantly gravitate in the complex relationship between the two bodies of international law. These matters are the constants or baselines around and from which the specific modalities of the relationship manifest. In broad terms, they concern points of legal policy. Should the ‘mutual attraction’ between IHL and HRL continue, leading them to ever closer integration? What obstacles could hinder such developments in the future? What are the practical difficulties raised by the interaction between IHL and HRL? Three such aspects may be raised here.

45  First, the so-called ‘war against terrorism’ after the 9/11 attacks showed that the old idea that all efforts should be made to apply IHL to conflict situations to ensure adequate protection of the potential victims is too simplistic. In fact, the application of IHL hampers the protection of HRL by using the concept of lex specialis. For example, the US has argued repeatedly that the drone attacks it carried out on different spots were regulated by IHL and not by HRL, such as when it killed Anwar al-Awlaki in Yemen in 2011. This implies a ‘license to kill’ enemy fighters and that the HRL rules on the prohibition of targeted killings would not apply (Targeted Killing). They would be derogated by the battlefield lex specialis rules under IHL. The same process can be observed in the field of detention. Under IHL, an enemy combatant or fighter can be detained for security reasons without any specific time limit or procedural safeguards. Indefinite detention for security reasons is however incompatible with HRL and detainees are entitled to habeas corpus guarantees. If the rules under IHL are applicable as lex specialis, they might allow detention on a much broader basis than HRL. In short, the idea that IHL is always ‘protective’ has recently been brought into question.

46  Second, there remain practical obstacles for the two branches to draw even closer, such as the old problem of differing institutional cultures and mutual mistrust. These tectonic rifts should not be exaggerated, but neither should they be ignored. Some IHL lawyers, especially military lawyers such as M Hansen (‘Preventing the Emasculation of Warfare: Halting the Expansion of Human Rights Law Into Armed Conflict’ [2007] 194 Military Law Review 1–65) see the advocates of HRL as too idealistic and unaware of actual battlefield conditions to devise a law meaningfully applicable in situations of armed conflict. The milder version of this criticism concentrates on the elusive and abstract nature of many HRL rules, which are based on highly contextual balancing between different protected interests. The argument goes that it is already difficult to train military personnel in hard and fast IHL rules; but that it becomes illusory to try to pour into the process fuzzy HRL rules based on complex evaluations when the conflict situation often requires decisions to be taken in a fraction of a second. Another mild version of such fears is that militantism and politicization could use the ‘Trojan horse’ of HRL to enter the venerable building of IHL, compromising its acceptability in the highly unstable situations of warfare. From an HRL perspective, IHL is seen as less protective due to the ‘license to kill’, the fact that it does not prohibit the death penalty (see Art. 100 Geneva Convention III), and because it allows for potentially endless security detention. IHL is then portrayed as an outdated edifice to be completely replaced by further extensions and developments in contemporary HRL. IHL and HRL lawyers still commonly originate in a different professional and academic background and may have limited knowledge of the other branch of law. The question that practically arises under the circumstances is to what extent a training of various personnel in the ‘other’ branch of the law, be it IHL or HRL, makes sense.

47  Third, there is the issue of the increasing complexity attained by both branches in recent years. For IHL, it suffices to mention the devilishly complicated issues raised by the qualification of armed conflicts, eg by various degrees of foreign control internationalizing the conflict, the support-based theories for determining if there is one or several armed conflicts, or the double classification of a situation as both an IAC and NIAC in some circumstances. For HRL, it is sufficient to mention the endless stream of reports and case-law, or the considerable development of positive obligations sometimes implied in the main obligation. If the complexities of each branch are further enhanced by their increased interaction, the question arises to what extent the law can still be explained and practically applied in situations characterized by armed conflicts, occupation of territory, etc. The law governing such emergency situations should overall be quite simple and clear-cut, allowing straightforward application. To what extent this is still possible in the current circumstances is a matter of debate and concern.

3.  Recent Approaches: Blurring the Branch Border Even Further

48  There are numerous examples of issues regarding which IHL and HRL interact in different ways. The main areas in which close interactions take place are the following: the law of NIAC (with its many gaps filled by HRL); detention; fair trial issues; protection of civilians beyond battlefield; occupied territories; right to life; blockade and siege; humanitarian assistance; missing persons. Conversely, some areas of the law of armed conflicts remain almost completely aloof from any HRL standards: this is the case eg of maritime prizes (apart from the treatment of the ship personnel), visit and search (Ships, Visit and Search), or contraband.

49  Jurisdictional Carving Out: The ECtHR has developed a jurisprudence under which events occurring in the conduct of hostilities, ie in a ‘context of chaos’, are characterized by a lack of relevant control of a State party to the Convention and are thus not under the jurisdiction of the Court. The ECHR cannot thus be applied to such facts—conversely, it will be applied to persons captured and other issues where there is such relevant control (eg mutilation of bodies). The Court held that

the active phase of hostilities which the Court is required to examine in the present case in the context of an international armed conflict is very different, as it concerns bombing and artillery shelling by Russian armed forces seeking to put the Georgian army hors de combat and to establish control over areas forming part of Georgia … [T]he very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos not only means that there is no ‘effective control’ over an area …, but also excludes any form of ‘State agent authority and control’ over individuals (Georgia v Russia [II] paras 133, 137).

This could be taken to imply that the Court would perhaps have reached a different conclusion, if (i) the hostilities had not resulted in a ‘context of chaos’ (but to the contrary there was an element of control, like in contexts of targeted killings or other elements creating some proximity); (ii) the alleged violations of the Convention had been separable from the ‘context of chaos’; or (iii) the acts in question did not involve ‘seeking to put the [opposed] forces hors de combat’. The relevance of the conduct of hostilities context in the Court’s reasoning is made all the more evident by subsequent case-law unrelated to armed conflicts, such as Carter v Russia, where the existence of proximity was not readily apparent, but where the Court decided to exercise jurisdiction. In the domain of the jurisdictional carving out, HRL will not be applied and IHL remains the main body of law applicable.

50  Complementary Approaches: Each one of the two bodies of law can complement the other by way of interpretation, in order to give stronger contextual meaning to its applicable rules. The point here is not that one rule takes the place of the other by derogation, but rather that one rule will complement another, so as to make it better tailored to some armed conflict-shaped situation. In a first situation, IHL complements HRL. An example is the right to life under Art. 2 ECHR. This right entails positive obligations for the States. If a potentially lethal operation has to be conducted, the State must ensure the proper training and equipment of the forces engaged. In case the lethal operation were conducted under the conduct of hostilities paradigm—eg a military attack against a convoy—the positive obligations under Art. 2 command that all the necessary precautions be taken. However, HRL has developed no specific list of necessary precautions. The positive obligation under Art. 2 will thus be implemented by interpreting into it the standards of precaution developed in IHL, notably under Art. 57 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (‘Additional Protocol I’; Geneva Conventions Additional Protocol I [1977]). Note that these precautionary measures do not take place in the context of chaos of the hostilities and do not fall under the jurisdictional carving out discussed above. In a second case, HRL complements IHL. Thus, the law of occupation under IHL is still predicated on an old conception of occupied territories as a short-lived parenthesis of war. Long-term occupations are not envisaged under IHL as it stands. When they occur, many relevant rules applicable to the occupied territories have to be found in HRL, eg in the social and economic rights limb. Thus, the human rights to water (Water, Right to, International Protection), to schooling of children (Education, Right to, International Protection), to socio-economic development, will complement the more short-term conservatory rights enshrined in the law of occupation. The same could be said of blockade and siege. Under classical laws of war, these are harsh institutions knowing of no exceptions for humanitarian aid. It is today mainly under HRL that exceptions for the humanitarian assistance of populations are read into the applicable law.

51  Gap-Filling Approaches: The line between a development of the law by interpretation and through gap-filling is essentially thin, especially in areas such as the present one. This is all the more so when gap-filling is hidden behind ostensibly interpretive craftsmanship. Thus, the ECtHR was confronted with its exhaustive list of reasons of detention under Art. 5 ECHR. Contrary to other international conventions on the issue, which prohibit ‘arbitrary detention’ and leave some room for flexibly reading in IHL, the European Convention exhaustively lists the ground of detention. It does not make allowance for detention under IHL. Strictly speaking, this would mean that States parties to the ECHR could not detain persons for security reasons under IHL, and would have to release all the prisoners if no specific listed ground of detention is applicable to them. In the famous Hassan case, the ECtHR interpreted the European Convention in the light of IHL and admitted detention under IHL. Even if formally no gap was filled (since the list of grounds of detention is exhaustive), that is in effect what was done: a gap left by the legislator in the European Convention was filled by the case law of the Court, accepting now a further ground of detention. Gaps may also be hardly visible to the naked eye. Thus, Art. 118 Geneva Convention III requires the detaining power to repatriate in all cases the prisoners of war it detains. This rule flows from worrisome experiences of the past, where detaining powers had used all possible pretexts in order not to repatriate the detained personnel. Then, in the Korean War of 1950–1954, arose the issue of prisoners not wanting to return home (in North Korea) for fear of persecution and death. The harsh rule under Art. 118 was progressively softened to read ‘repatriation or other release’ through the introduction of rules of the nascent refugee law and human rights principle of non-refoulement.

52  HRL has also recently been invoked to fill in gaps left by IHL regarding who is protected during an armed conflict. An important development thus concerns the recognition of the members of a belligerent party’s armed forces vis-à-vis their own State. IHL traditionally protects the enemy and possesses very few provisions on the protection of persons belonging to the same belligerent party; notable exceptions are Geneva Convention I and Geneva Convention II, which require belligerents to protect all wounded, sick, and shipwrecked members of the armed forces, and Art. 75 Additional Protocol I, which establishes fundamental guarantees owed to all persons not entitled to more favourable treatment under IHL. However, the UK Supreme Court recognized in Smith and others v The Ministry of Defence (paras 56–101) that the UK had some positive obligations to plan military operations in a way that would safeguard the right to life of its own troops. It is also worth mentioning that economic, social and cultural rights have been applied to situations of armed conflict, especially in situations of occupation, in a way that is unusual for ‘normal’ HRL application, see eg report of the Special Rapporteur Jean Ziegler on ‘The Right to Food’ (Mission to the Occupied Palestinian Territories [2003]).

53  Derogatory Approaches: It also occurs that the rule under one branch of the law must yield to the one of the other, ie be derogated by the latter. In such situations, it will be said that the latter rule is lex specialis to the former. The operation of this concept is however in many cases unclear. Lex specialis refers in the first place to rules by which fewer parties are bound in comparison to rules to which more parties are bound, the former then prevailing inter se (eg in a treaty, as opposed to a rule of general customary international law); but here, there is no such numerical issue; the point turns on the substance of the rule and its appropriateness in a context of armed conflict; thus, the question becomes one of interpretation in full context; the label lex specialis can then at best be bestowed post festum on the result reached by other means. An example of a rule of HRL to be derogated by a rule of IHL can be found in the context of investigations in case of lethal outcomes. Under HRL, the control organs maintain a sweeping duty to enquire on the causes of death of a person, sometimes even if the lethal encounter occurred on a territory not under the control of the State concerned and in a fugacious armed encounter (see eg Jaloud v The Netherlands paras 186ff; Ilaşcu and others v Moldova and Russia paras 310ff; Georgia v Russia [II] paras 329–32). This is a matter of concern of IHL lawyers, including the ICRC. It is highly unrealistic to require sweeping duties of investigations for casualties occurring during the conduct of hostilities; the military forces have neither the time nor the resources to conduct them. IHL has its own regulation on when enquiries have to be conducted, eg in case of suspect death of detained persons (eg Art. 121 Geneva Convention III). Thus, the position of IHL organs is that these rules of IHL are derogating special rules with regard to the more sweeping ones under HRL. An example for the opposite situation, where a rule of HRL derogates to a rule of IHL, can be found in the context of remedies granted to civilian persons whose liberty has been restricted under Geneva Convention IV. Article 43 Geneva Convention IV grants such persons a remedy to a tribunal or an administrative board. Modern HRL always requires an independent and impartial tribunal. Some human rights bodies such as the UN Working Group on Arbitrary Detention therefore insist on a derogation from IHL according to HRL standards (‘United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court’ [4 May 2015] UN Doc WGAD/CRP.1/2015, Principle 16). Thus, an administrative board dependent on the detaining forces would not be compatible with the requirements of applicable international law.

54  Structural Inherency: Finally, there are some cases where the ‘other’ branch of the law is already codified in IHL or HRL, as the case may be. Thus, Art. 75 Additional Protocol I and Art. 4 Additional Protocol II of 1977 entitled ‘fundamental guarantees’ contain a list of rights of protected persons, in significant part akin to HRL. Sometimes, the affiliation of the rule is less manifest, but still easily visible. Thus, Art. 42 Geneva Convention III is a rule of IHL structurally tainted by a HRL-logic. In IHL, the rules on killings are normally based on the ‘license to kill’-approach. There is no graduation of the use of force: a soldier does not have to ask first for surrender, then shoot only with non-lethal weapons, after that shoot only to injure, and so on. Article 42 Geneva Convention III is however based exactly on such a progressive escalation logic. It deals with attempts of prisoners of war to escape from the camps or other locations where they are held. If such an attempt at evasion is discovered while it is under way, the guards must warn the prisoner and use lethal force only in extreme cases. HRL has here penetrated into an IHL rule and shaped its peculiar object and spirit.

E.  Conclusion

55  The relationship of HRL and IHL has undergone major changes since 1945. From a situation of relative segregation and mutual disinterest, there has been a move towards a situation of progressive interaction. The correct way of conceiving the mutual relationships of the two areas is not to imagine any fusion of both. It is rather to work out with precision areas and questions where the coordinated application of provisions of both branches of the law leads to satisfactory—if not innovative—solutions, securing progress of the law or filling its gaps. This complex task is inadequately described by the oft-quoted principle of lex specialis. The point is most often not simply one of derogation by priority, but rather one of complex case-by-case mutual reinforcement and complementation on concrete issues. Thus, rather than stressing mutual exclusiveness, it would be better to focus on: a) gap filling and development of the law by coordinated application of norms of HRL in order to strengthen IHL and vice versa; and b) interpretation allowing an understanding of one branch in the light of the other’s normative corpus in all situations where this is necessary, ie in armed conflict or occupation. At the same time, it is important to retain the spirit in the bottle and not to indulge in too much of HRL in times of armed conflict. Situations of war and armed conflict are traversed by their own idiosyncratic needs and the expectations of their various actors. This or that is possible, other things may just be desirable in an ideal world in which the issue would not arise in the first place. In short, the interaction must be kept within the four corners of what modern armies and their lawyers can still handle. The proper balancing of how much HRL can be poured into IHL is a difficult question which must be answered by the actors on the spot through their evolutionary practice. There is no codification of the relationship of HRL and IHL. All is based merely on practice, and it is in the flexibilities of this day-to-day handling that the proper way has to be sought, and perhaps for short illuminating moments, found.

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