Part III International Human Rights law, 5 Detention and the Relationship between IHL and IHRL

Subject(s):

Detention — Armed conflict, international — Armed conflict, non-international — Treaties, interpretation — Erga omnes obligations — Lex specialis — State practice

This chapter explores the fundamental question of how the relationship between international humanitarian law (IHL) and international human rights law (IHRL) in the context of detention is to be understood. It begins with a general discussion of the relationship between IHL and IHRL, offering an original perspective that is firmly grounded in general international law principles of treaty interpretation. This is then applied to the rules on detention, looking first at detention in international armed conflicts to consider the various interpretive possibilities open to us. It then moves on to the central enquiry of this book, that is, detention in non-international armed conflict, exploring, in detail, state practice in specific non-international armed conflicts. It is shown that states remain bound in full by their human rights treaty obligations, alongside the minimal rules of IHL explored in chapter 3, when detaining in the context of non-international armed conflicts.