The starting point is that, in situations of armed conflict, international humanitarian law is the principal applicable legal system, i.e. lex specialis, which governs the conduct of hostilities and the protection of persons in situations of armed conflict. This implies that there is a link between certain activities or treatments and an ongoing conflict. Where such a link cannot be established, normal approaches to criminal justice apply in peacetime. Although human rights standards continue to apply in times of armed conflict, the modalities of this joint application of legal regimes remain unclear. What is certain, however, is that these two legal bodies – IHL and human rights law – share fundamental and fundamental values. (Melzer, 2016 was particularly helpful in writing this section). The interaction between IHL and human rights law continues to receive considerable legal attention, particularly because of its impact on the conduct of military operations. In its first-ever statement on the application of human rights in situations of armed conflict, the 1996 Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice stated that the protection afforded by the International Covenant on Civil and Political Rights does not cease in time of war and that: In principle, the right not to be arbitrarily deprived of life is valid. even in hostilities. The Court added that the concept of arbitrary deprivation of life must be defined by the applicable lex specialis, i.e.
the law applicable in armed conflict intended to govern the conduct of hostilities. This statement has generally been interpreted as clarifying the question of the interaction between IHL and human rights law and implies that human rights, which are presumed to be applicable at all times, constitute the lex generalis, while IHL, whose application is triggered by the occurrence of an armed conflict, constitutes the lex specialis. In other words, when human rights laws and IHL are in conflict, IHL is considered mainstream because it is specifically designed to deal with armed conflict. Although the meaning and even the usefulness of teaching lex specialis has been questioned, it is generally accepted that it is essential to determine the interaction between IHL and human rights law. Although these two branches of international law are generally complementary, the concept of complementarity cannot resolve the complex legal issues of interaction that sometimes arise. In some cases, IHL and human rights rules may lead to contradictory results when applied to the same facts, as they reflect the different circumstances for which they were originally developed. There are important conceptual differences between the two legal systems. The first is that international human rights law is linked to the jurisdiction of States, which is normally their physical territory, although in some situations where certain criteria are met, their obligations may extend extraterritorially to the physical territory of another State (ICJ, 2004, para. 109). Sometimes, important conceptual and legal differences can lead to tensions between the two legal systems. A particularly important example for counter-terrorism measures concerns the right to life. IHL allows persons taking a direct part in hostilities, such as armed non-state actors, to be deprived of this right for military reasons in order to balance this with considerations of humanity.
Accordingly, all IHL principles take into account the need to protect individuals from the atrocities of war and, as such, can be said to express the right to life. For example, the principle of distinction, by providing that civilians and civilian objects may not be directly attacked in armed conflict, protects civilians in armed conflict. Direct targeting of civilians is prohibited, and dozens of other standards similarly protect civilian lives (and, to a lesser extent, the lives of combatants) in wartime. The extent to which human rights should be applied in wartime has been hotly debated without a clear picture emerging. The so-called “kill or capture” debate is emblematic of this debate. The question arose as to whether, if possible, states should capture combatants rather than kill them, as different researchers have different views on the subject. International humanitarian law binds all parties to an armed conflict, thereby establishing equality of rights and obligations between governmental and non-governmental parties in the interest of all those who may be affected by their conduct (essentially “horizontal” relationship). (See question 8.) Human rights law explicitly governs the relationship between a State and persons within its territory and/or jurisdiction (essentially “vertical”) and sets out States` obligations towards individuals in a wide range of conduct. Thus, human rights standards are binding only on States, as evidenced by the fact that human rights treaties and other sources of human rights standards do not create legal obligations for non-State armed groups. This is because most such groups are not able to fulfil the full range of human rights obligations because, unlike Governments, they cannot fulfil the functions on which the implementation of human rights standards is based. There is one notable exception to this generalization of non-State armed groups: cases where a group, usually because of stable control of territory, has the capacity to act as a State authority, and thus its responsibility for human rights may be recognized de facto.
The interaction between humanitarian and human rights rules on the use of force and procedural guarantees for internment, at least in international armed conflicts, must be resolved by reference to lex specialis, i.e. the provisions of international humanitarian law designed specifically for these two areas. (See box.) While international humanitarian law and human rights law have developed in different ways, some human rights treaties contain provisions derived from international humanitarian law, such as the Convention on the Rights of the Child and its Optional Protocol on the involvement of children in armed conflict and the Convention on Enforced Disappearances. International humanitarian law and international human rights law are two distinct but complementary legal bodies. Both deal with the protection of life, health and dignity. IHL applies in armed conflict, while human rights apply at all times, in times of peace as well as in times of war. Another important issue of concern to the international community is the involvement of children in armed conflict.
