Untangling The Complicated Relationship Between International Hum

Penn State Journal of Law & International Affairs
Volume 6 Issue 1
June 2018
Untangling the Complicated Relationship between International

Humanitarian Law and Human Rights Law in Armed Conflict
Waseem Ahmad Qureshi
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ISSN: 2168-7951
Recommended Citation
Waseem Ahmad Qureshi, Untangling the Complicated Relationship between International Humanitarian
Law and Human Rights Law in Armed Conflict, 6 PENN. ST. J.L. & INT'L AFF. (2018).
Available at: https://elibrary.law.psu.edu/jlia/vol6/iss1/9
The Penn State Journal of Law & International Affairs is a joint publication of Penn State’s School of Law and
School of International Affairs.
Penn State
Journal of Law & International Affairs
2018 VOLUME 6 NO. 1
UNTANGLING THE COMPLICATED

RELATIONSHIP BETWEEN
INTERNATIONAL HUMANITARIAN LAW
AND HUMAN RIGHTS LAW IN ARMED
CONFLICT
Waseem Ahmad Qureshi*
International Humanitarian law (IHL) and human rights law (HRL) share similarities in
their goals, purposes, and values, which try to respect and protect human dignity and mitigate
human suffering. Similarly, IHL and HRL are interchangeably applicable during peacetime
and wartime, each set of rules dependent on the other. Therefore, IHL and HRL interact with
each other during armed conflicts and occupations. War is where humanity suffers most, because
during war both IHL and HRL are violated regularly on a mass scale. Unfortunately, nations
do not respect the prohibition on war. As a result, many decades-long wars have been fought.
Most importantly, noncombatants suffer as a result of these kinds of armed conflict. For
instance, millions of people in Syria have been affected and displaced owing to the ongoing armed
conflicts. Likewise, millions more have been impacted overall in the Middle East in the name of
fighting terrorism. In this perpetual state of belligerence, humanity is suffering. Accordingly, to
promote the mitigation of human suffering via the limits enshrined in HRL and IHL, this
paper will try to comprehend the subtle similarities and differences in the application,
relationship, and interaction of IHL and HRL during armed conflicts.
* Advocate Supreme Court of Pakistan

2018 Penn State Journal of Law & International Affairs 6:1
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................... 204

II. ORIGINS OF HRL AND IHL ............................................................. 206
A. Origins of HRL ...................................................................... 206
B. Origins of IHL ........................................................................ 208
III. APPLICABILITY .................................................................................. 211
A. Jurisprudence of the Simultaneous Application of HRL
and IHL................................................................................. 214
B. Application of HRL and IHL during Emergencies .......... 216
IV. RELATIONSHIP: THE NOTION OF “LEX SPECIALIS” .................. 217
V. INTERACTION ..................................................................................... 225
A. Transnational Armed Conflict ............................................. 228
B. Nontransnational Armed Conflict ....................................... 230
VI. CONCLUSION .................................................................................... 235

I. INTRODUCTION
Human rights law (HRL) and international humanitarian law

(IHL) are two separate sets of rules, each of which has its own rich
legal framework1 but strikingly analogous characteristics. Even their
names are similar, containing a common word—”human”—which
denotes their commonality to protect human dignity and life.2
IHL comprises four main legal concepts: the principle of

distinction, the principle of military necessity, the principle of
proportionality and unnecessary suffering. These principles are based
on the desire to mitigate unnecessary human suffering and property
destruction.3 The principle of distinction is laid down in Article 48 of
the Additional Protocol of 1977 and the Geneva Convention (GC) of
1 Jean-Philippe Lavoyer, Implementation of International Humanitarian

Law and the Role of the International Committee of the Red Cross, in
International Humanitarian Law: Challenges 213, 214 (John Carey et al. eds., 2004).
2 Daniel Moeckli, Human Rights and Non-discrimination in the “War on
Terror” 92 (2008).
3 Gary D. Solis, The Law of Armed Conflict: International Humanitarian
Law in War 285 (2010).
204
2018 Relationship between IHL and HRL in Armed Conflict 6:1
1949.4 This concept mandates that belligerents must distinguish

between combatants and noncombatants, and noncombatant civilians
during armed conflict must be protected from the horrors of war and
violence.5 Similarly, the principle of military necessity is laid down in
Article 8 of the same Additional Protocol.6 This principle dictates
that military actions must employ the minimum use of force
necessary to attain military goals and objectives, and this principle
prohibits the excessive use of force in order to ensure limited civilian
casualties and property destruction as collateral damage.7 The concept
of proportionality maintains that the retaliatory force, in response to
self-defense, must be reasonable in the context of the devastation it
instigates.8
HRL is based on the principles of nondiscrimination, such as

the right to be treated equally,9 and on respect for human dignity,
such as the right not to be tortured and the right not to be enslaved.10
To understand the notions of HRL and IHL comprehensively, it is
imperative to discuss their origins.
Accordingly, this paper is divided into four sections. The first

will fleetingly discuss the origins of HRL and IHL, with Subsection A
discussing the origins of HRL and Subsection B the origins of IHL.
The second section will cover the applicability of HRL and IHL in
situations of armed conflicts, peacetime, and occupations. This
4 Protocol I Additional to the Geneva Conventions of Aug. 12, 1949, and

relating to the Protection of Victims of International Armed Conflicts art. 48
(1977).
5 Jean-Marie Henckaerts & Louise Doswald-Beck, International
Committee of the Red Cross, Customary International Humanitarian Law: Volume
1, Rules 3 (2005).
6 Protocol I Additional to the Geneva Conventions of Aug. 12, 1949, and
relating to the Protection of Victims of International Armed Conflicts art. 8 (1977).
7 IAN HENDERSON, THE CONTEMPORARY LAW OF TARGETING 44 (2009).
8 YORAM DINSTEIN, WAR, AGGRESSION & SELF-DEFENCE 210
(Cambridge University Press, 2001); see also, WASEEM AHMAD QURESHI, JUST WAR
THEORY AND EMERGING CHALLENGES IN AN AGE OF TERRORISM 174 (2017).
9 PAUL HUNT, NEGLECTED DISEASES: A HUMAN RIGHTS ANALYSIS 16
(2007), http://www.who.int/tdr/ publications/documents/seb_topic6.pdf.
10 Andrea Sangiovanni, Humanity Without Dignity: Moral Equality,
Respect, and Human Rights 25 (2017).
205
section is also divided into two subsections: Subsection A will

consider the jurisprudence of the simultaneous application of IHL
and HRL, and Subsection B will explore the applicability of HRL and
HL during emergencies. The third section will explore the
relationship between IHL and HRL, discussing and building upon
the recognized notion of lex specialis. Finally, the fourth section will
examine the interaction between IHL and HRL. This section is also
divided into two subsections: Subsection A will briefly look at the
interaction between HRL and IHL in transnational armed conflicts,
and Subsection B will examine their interaction in nontransnational
armed conflicts.
II. ORIGINS OF HRL AND IHL
To arrive at a comprehensive understanding of HRL and

IHL, this section will briefly discuss their origins. It is divided into
two subsections. Subsection A will discuss the origins of HRL, and
Subsection B will explore the origins of IHL.
A. Origins of HRL
The concept of HRL was integrated into the modern legal

framework through the work of Greek philosophers during the sixth
century BCE, through the concepts of natural law and the
universality of human rights. These notions stipulate that all people
enjoy human rights by the nature of the fact that they are humans,
and these rights are inalienable.11 From these principles developed
several human rights, such as the right to equality, which mandates
that all human beings are equal in the eyes of the law.12 Later, through
the same conceptualization, slavery was abolished and slaves were
given a legal status equal to their former masters; they were no longer
treated as the property of other people.13 Though slavery was the
Lynn Hunt, The Paradoxical Origins of Human Rights, in HUMAN RIGHTS

11
AND REVOLUTIONS 3, 4 (Jeffrey N. Wasserstrom et al. eds., 2007).

12 DAVID N. STAMOS, THE MYTH OF UNIVERSAL HUMAN RIGHTS 129
(Routledge ed., Paradigm Publishers 2013) (2016).
13 THOMAS L. KRANNAWITTER, VINDICATING LINCOLN: DEFENDING
THE POLITICS OF OUR GREATEST PRESIDENT 98 (2008).
206
bedrock of the Greek and Roman civilizations,14 these universal

rights mandated that all human beings are equal, that no human
could be treated as an inferior being based on his ethnic origin,
religion, language, or status. These rights can be traced back to Sharia
law in the early seventh century.15 Islam propagated basic human
rights, such as the right to equality, long before the incorporation of
those rights into the modern legal framework.16 These modern
human rights were even incorporated into seventh-century legal
frameworks, such as when inalienable rights were guaranteed in the
Constitution of Medina in CE 622.17
In essence, HRL is all about protecting human dignity:

anything that injures this dignity is prohibited, and anything that
complements it is endorsed.18 HRL is regularized and supplemented
through “international laws, declarations, treaties, agreements,” and
“national constitutions and legislations.”19 The basic instrument that
lays the international foundations of all HRL is the Universal
Declaration of Human Rights of 1948 (UDHR).20 UDHR includes
economic, social, and cultural rights as well as civil and political
rights.21
14 AUGUSTIN COCHIN, THE RESULTS OF SLAVERY “L’ABOLITION DE

L’ESCLAVAGE” 363 (Mary L. Booth trans.,Walker, Wise, & Company, 1863); see also
DINESH D’SOUZA, WHAT’S SO GREAT ABOUT CHRISTIANITY 71 (2008).
15 Mashood A. Baderin, Islamic Law and International Protection of Minority
Rights in Context, in ISLAM AND INTERNATIONAL LAW: ENGAGING SELF-CENTRISM
FROM A PLURALITY OF PERSPECTIVES 309, 321 (Marie-Luisa Frick et al. eds., 2013).
16 Syed Abbas Husain, The Wavering Waves of Change (Divine Mode of
Culture & Civilization) 105 (2016).
17 A. Reis Monteiro, Ethics of Human Rights 58 (2014).
18 H. VICTOR CONDÉ, A HANDBOOK OF INTERNATIONAL HUMAN
RIGHTS TERMINOLOGY 126 (2nd ed., 2004).
19 Christian Courts, The Applicability of Human Rights Between Private Parties, in
HUMAN RIGHTS IN EDUCATION, SCIENCE, AND CULTURE: LEGAL
DEVELOPMENTS AND CHALLENGES 163 (Yvonne Donders et al. eds., 2007).
20 Victoria Sutton, Emergencies, Disasters, Conflicts, and Human Rights,
in Advancing the Human Right to Health 379, 380 (José M. Zuniga et al. eds.,
2013).
21 Amitabh Behar, A Ground Reality to Assess the Realization of Economic,
Social, and Cultural Rights in India, in HUMAN RIGHTS AND BUDGETS IN INDIA 597,
601 (Yamini Mishra et al., 2009).
207
B. Origins of IHL
By contrast, the chronological progression of IHL can be

traced back to the Geneva Convention of 1864 (GC).22 The first
creditable expression of the term IHL was articulated in the GC.23
This incorporation of IHL was meant to improve the conditions of
injured soldiers on the battlefield.24 IHL can also be seen in the
Second Hague Peace Conference of 1907, which discusses excessive
suffering along with the humanitarian rights of soldiers.25 Similarly,
the Geneva Conventions of 1949 considers “humanitarian activities”
and “humanitarian organizations.”26 However, besides tracing the use
of IHL in the legal framework, the most important reason to analyze
the origins of IHL is to examine its true historical understandings.
Since IHL is only applicable during war or armed conflict,27 it is
known as the “law of war” or the “law of armed conflict.”28 The
main objective of IHL is to reduce human suffering during conflict.
In a sense, IHL humanizes wars by curtailing unnecessary brutality
and destruction.29 It also restricts violence by belligerents in order to
protect noncombatants and attempts to proscribe unwarranted
obliteration through principles such as the “principle of
distinction.”30 This concept obliges that “ . . . as soon as they
[combatants] lay them [their arms] down and surrender, they cease to
22 Emily Crawford & Alison Pert, International Humanitarian Law 120

(2015).
23 M. Cherif Bassiouni, Introduction to International Humanitarian Law, in
International Criminal Law: Vol. I Sources, Subjects and Contents 269, 281 (M.
Cherif Bassiouni ed., 2008).
24 Id.
25 Id.
26 Sylvain Beauchamp, “Humanitarian Space” in Search of a New Home, in
Modern Warfare: Armed Groups, Private Militaries, Humanitarian Organizations,
and the Law 199, 211 (Benjamin Perrin ed., 2012); see also Guy S. Goodwin-Gill
& Jane McAdam, The Refugee in International Law 444 (3rd ed. 2007).
27 Jeroen C. van den Boogaard, Fighting by the Principles: Principles as a Source
of International Humanitarian Law, in ARMED CONFLICT AND INTERNATIONAL LAW:
IN SEARCH OF THE HUMAN FACE 3, 21 (Mariëlle Matthee et al. eds., 2013).
28 Malcolm N. Shaw, International Law 847 (7th ed., 2014).
29 U.C. JHA, INTERNATIONAL HUMANITARIAN LAW: THE LAWS OF WAR
216 (2011).
30 Sandesh Sivakumaran, International Humanitarian Law, in International
Human Rights Law 479, 480 (Daniel Moeckli et al. eds. 2014).
208
be enemies or agents of the enemy, and again become mere men, and
it is no longer legitimate to take their lives.”31 IHL is not meant to
stop or criminalize wars:32 its purpose is solely to humanize them.33
Critics of IHL, however, argue that its application prolongs the
duration of a war, which acts paradoxically since elongated wars
worsen human suffering.34 By contrast, the proponents of IHL
contend that having a longer war is better than having a shorter, yet
more brutal or inhuman war.35 Nonetheless, IHL balances the
intricacies of human suffering, property destruction, and military
necessity.36 This balance is mechanized through the legal framework
of regulations known as jus in bello, or the laws of war. Any violation
of these regulations is referred to as a “war crime.”37
IHL and HRL share some similarities owing to their similar

goals, purposes, and values, which try to respect and protect human
dignity as well as mitigate human suffering.38 Similarly, IHL and HRL
are interchangeably applicable during peacetime and wartime,39 with
31 Daphné Richemond-Barak, Nonstate Actors in Armed Conflicts, in NEW

BATTLEFIELDS/OLD LAWS: CRITICAL DEBATES ON ASYMMETRIC WARFARE 106,
113 (William C. Banks ed., 2011).
32 Yves Sandoz, International Humanitarian Law in the Twenty-First Century, in
Yearbook of International Humanitarian Law Vol. 6 3, 5 (Timothy McCormack
ed., 2003).
33 William C. Banks, Towards an Adaptive International Humanitarian Law, in
NEW BATTLEFIELDS/OLD LAWS: CRITICAL DEBATES ON ASYMMETRIC WARFARE
1 ,19 (William C. Banks ed., 2011).
34 Hugo Slim, Wonderful Work Globalizing the Ethics of Humanitarian Action, in
The Routledge Companion to Humanitarian Action 13, 23 (Roger Mac Ginty et al.
eds., 2015).
35 FRITS KALSHOVEN & LIESBETH ZEGVELD, CONSTRAINTS ON THE
WAGING OF WAR 3 (Martinus Nijhoff Publishers, 1987).
36 Sivakumaran, supra note 30, at 480.
37 DIANE A. DESIERTO, NECESSITY AND NATIONAL EMERGENCY
CLAUSES: SOVEREIGNTY IN MODERN TREATY INTERPRETATION 341 (2012).
38 MOECKLI, supra note 2, at 92.
39 JOST DELBRÜCK, WILFRIED FIEDLER, & JOST DELBRÜCK, GERMAN
YEARBOOK OF INTERNATIONAL LAW/JAHRBUCH FÜR INTERNATIONALES RECHT
196 (DUNCKER & HUMBLOT, 1983); see also Howard S. Levie, Violations of Human
Rights in time of War as War Crimes, in ISRAEL YEARBOOK ON HUMAN RIGHTS 119,
119 (Yoram Dinstein ed., 1994).
209
each set of rules dependent on the other for its application.40

Therefore, IHL and HRL interact with each other during armed
conflicts and occupations.41 War is where humanity suffers most,
because during war both IHL and HRL are violated regularly on a
mass scale.42 Unfortunately, nations do not respect the prohibition on
war. As a result, decades-long wars are fought repeatedly.43 Most
importantly, noncombatant civilians suffer from these kinds of armed
conflict. For instance, millions of people in Syria have been affected
and displaced owing to ongoing wars.44 Moreover, millions more
have been impacted generally in the Middle East in the name of
fighting terrorism.45 In these armed conflicts, Western states are
arming rebellions46 and fighting proxy wars against the sovereign
nations of the Middle East in the name of supporting regime
change.47 In fact, these arms are used against sovereign states, which
40 Ana Filipa Vrdoljak, Cultural Heritage in Human Rights and Humanitarian

Law, in International Humanitarian Law and International Human Rights Law 250,
251 (Orna Ben-Naftali ed., 2011).
41 Peter Vedel Kessing, The Use of Soft Law in Regulating Armed Conflicts: From
Jus in Bello to ‘Soft Law in Bello’?, in Tracing the Roles of Soft Law in Human
Rights 129, 133 (Stephanie Lagoutte et al. eds., 2016).
42 See generally HUMAN RIGHTS WATCH, BLOODSHED IN THE CAUCASUS:
VIOLATIONS OF HUMANITARIAN LAW AND HUMAN RIGHTS IN THE GEORGIA-
SOUTH OSSETIA CONFLICT (Mar. 1992), https://www.hrw.org/reports/pdfs
/g/georgia/georgia.923/georgia923full.pdf.
43 Nigel D. White & Christian Henderson, Introduction: International Conflict
and Security Law, in Research Handbook on International Conflict and Security Law
1, 1 (Nigel D. White & Christian White eds., 2013).
44 V.G. Julie Rajan, Women, Violence, and the Islamic State: Resurrecting the
Caliphate Through Femicide in Iraq and Syria, in Violence and Gender in the Globalized
World: The Intimate and the Extimate 45, 60 (Sanja Bahun et al. eds., 2016).
45 Tatah Mentan, The Elusiveness of Peace in a Suspect Global System 300
(2016); see also Kit O’Connell, 4 Million Muslims Killed in Western Wars: Should We Call
it Genocide?, Mintpressnews (Aug. 18, 2015), https://www.mintpressnews.com/4-
million-muslims-killed-in-western-wars-should-we-call-it-genocide/208711/.
46 To see US is abetting NSA see Paul Battersby, Global Crime and Global
Security, in The SAGE Handbook of Globalization 697, 706 (Manfred B. Steger et
al. eds., 2014); see also David Scheffer, The Imoact of the War Crimes Tribunals on
Corporate Liability for Atrocity Crimes Under US law, in HUMAN RIGHTS IN THE NEW
GLOBAL ECONOMY: CORPORATE SOCIAL RESPONSIBILITY? 152, 167 (Charlotte
Walker-Said & John D. Kelly eds., 2015).
47 To see Western States are abetting NSA for regime change see Chris
Landsberg & Jo-Ansie van Wyk, A review of South Africa’s peace diplomacy since 1994, in
210
weakens the infrastructure of a state to such an extent that it is no

longer able to fight rebellions.48 In this perpetual system of
belligerence, humanity is suffering. To promote the mitigation of
human suffering via the regulations of HRL and IHL, it is vital to
comprehend the subtle similarities and differences in the application,
relationship, and interaction of IHL and HRL.
III. APPLICABILITY
According to Common Article 2 of the Geneva Conventions

of 1949, IHL is generally applicable during wartime or during an
armed conflict.49 By contrast, HRL is mostly applicable during
peacetime; however, certain human rights continue to be applicable
during warfare or armed conflict.50 Emergency clauses in the legal
framework allow states to derogate from certain human rights in an
emergency situation.51 The remaining fundamental human rights are
deemed non-derogable, such as the right not to be enslaved, even
during conflicts or wartime.52 These non-derogable human rights are
also known as the “hardcore of human rights.”53 Most notably, the
International Conference of Human Rights in Tehran of 196854 and
the Declaration of Minimum Humanitarian Standards of 1990 (also
SOUTH AFRICAN FOREIGN POLICY REVIEW 84, 106 (Chris Landsberg et at. eds.,
2012).
48 See Rachel Blevins, Media Silent as Syrian Forces Finally Defeat Isis, Finding
Cache of Made in USA Weapons, The Free Thought Project (Nov. 10, 2017),
http://thefreethoughtproject.com/syrian-forces-defeat-isis-weapons-found/.
49 Lindsay Moir, The Concept of Non-International Armed Conflict, in The 1949
Geneva Conventions: A Commentary 390, 396 (Andrew Clapham et al. 2015).
50 MOHAMAD GHAZI JANABY, THE LEGAL REGIME APPLICABLE TO
PRIVATE MILITARY AND SECURITY COMPANY PERSONNEL IN ARMED CONFLICTS
162 (2016).
51 Evan J. Criddle, Introduction: Testing Human Rights Theory During
Emergencies, in Human Rights in Emergencies 1, 15 (Evan J. Criddle ed. 2016).
52 CARMEN TIBURCIO, THE HUMAN RIGHTS OF ALIENS UNDER
INTERNATIONAL AND COMPARATIVE Law 76-78 (2001).
53 FRANÇOISE BOUCHET-SAULNIER ET AL., THE PRACTICAL GUIDE TO
HUMANITARIAN LAW 192 (Laura Brav & Camille Michel eds. trans., Rowman &
Littlefield Pub. 2013).
54 See Final Act of the International Conference on Human Rights, U.N.
Doc. A/CONF.32/41 (May 13, 1968).
211
known as the Turku Declaration of 1990)55 considered the

application of HRL during armed conflicts. The consideration in
these instruments, combined with other international instruments,
criticize the division between IHL and HRL and advocate for their
application in harmony with each other during armed conflict.56
HRL and IHL have multiple objectives in common. For

instance, both sets of rules attempt to protect human beings.57 The
only apparent conceptual difference between them is that one set
protects human beings during war, the other during peacetime.58 The
non-derogable nature of certain human rights59 and the application of
human rights during armed conflicts,60 together with the fact that
wars have been prolonged for decades61 and drone attacks are
routinely conducted during peacetime,62 have mitigated the line
distinguishing between HRL and IHL.63 As a result, IHL is applicable
during peacetime, without the existence of material wars, in the form
55 See Declaration of Minimum Humanitarian Standards, UN Doc.

E/CN.4/Sub.2/1991/55 (Dec. 2, 1990).
56 See TATHIANA FLORES ACUÑA, THE UNITED NATIONALS MISSION TO
EL SALVADOR: A HUMANITARIAN LAW PERSPECTIVE34 (Kluwer Law Int’l, 1995).
To see the 1968 instrument in the same context see Orna Ben-Naftali, Introduction:
International Humnaitarian Law and International Human Rights Law—Pas de Deux, in
INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS
LAW 3, 4 (Orna Ben-Naftali ed., 2011). To see the 1990 instrument in the same
context see KRISTA NADAKAVUKAREN SCHEFER, SOCIAL REGULATION IN THE
WTO: TRADE POLICY AND INTERNATIONAL LEGAL DEVELOPMENT 64 (2010).
57 See MOECKLI, supra note 2, at 92.
58 Law Soc’y of Ireland, Human Rights Law 143 (Brid Moriarty & Eva
Massa eds., 4th ed. 2012).
59 See TIBURCIO, supra note 51.
60 See LAW SOC’Y OF IRELAND, supra note 57.
61 To see Afghanistan two decades war see LARRY P. GOODSON,
AFGHANISTAN’S ENDLESS WAR: STATE FAILURE, REGIONAL POLITICS, AND THE
RISE OF THE TALIBAN 4 (2001). To see a decade long war on terror see PAUL
ROGERS, WHY WE’RE LOSING THE WAR ON TERROR, at chapter 6 (2008) .
62 Mehrdad Vahabi, The Political Economy of Predation: Man-Hunting
and the Economics of Escape 5 (2015); see also Gloria Gaggioli, Remoteness and
Human Rights Law, in Research Handbook on Remote Warfare 133, 171 (Jens David
Ohlin ed., 2017).
63 Ben-Naftali, supra note 56, at 9.
212
of armed conflicts, civil wars, or occupations.64 Interestingly, the laws

of necessity, proportionality, and distinction, which are principles of
IHL, are applicable without actual armed conflicts. For example,
recent drone attacks conducted in Pakistan and Syria were actually
conducted without any armed conflict between states, in the name of
fighting terrorism.65 In this context, the question of collateral damage
and the principles of distinction were raised and applied by academics
in conducting drone strikes.66 Moreover, certain IHL instruments
from the United Nations General Assembly include mitigating terms
such as “Respect of Human Rights in Armed Conflict,”67 which
invigorate the relationship between HRL and IHL. Similarly, HRL is
also applicable during armed conflicts and wars.68 For instance,
during armed conflicts between rebels and the Syrian state—where
rebellions were armed and supported by other countries69—HRL
was, and is, still applicable.70 Moreover, the core of human rights is
applicable and enforceable at all times, and states cannot derogate
from them in any circumstances.71 In its famous advisory opinion in
the Wall case72 and the case of Congo v. Uganda73, the International
64 Jann K. Kleffner, Human Rights and International Humanitarian Law, in The

Handbook of the International Law of Military Operations 35, 45 (Terry D. Gill &
Dieter Fleck eds., 2015).
65 See U.C. Jha, Drone Wars: Ethical, Legal and Strategic
Implications: Ethical, Legal and Strategic Implications (2014).
66 David Turns, Droning on: some international humanitarian in law
aspects of the use of unmanned aerial vehicles in contemporary armed conflicts, in
Contemporary Challenges to the Laws of War: Essays in Honour of Professor
Peter Rowe 191, 208 (Caroline Harvey et al. eds., 2014) (discussing the distinction
and collateral damage); Maya Brehm, International humanitarian law and the
protection of civilian from the effects of explosive weapons, in Contemporary
Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe 235,
241 (Caroline Harvey et al. eds., 2014) (discussing proportionality in Pakistan); Id.
at 263 (discussing necessity).
67 See Respect of Human Rights in Armed Conflict, UNGA RES 2444,
1968.
68 JANABY, supra note 49, at 162.
69 Battersby, supra note 46, at 706
70 Janaby, supra note 49, at 182; see also Kessing, supra note 41, at 132.
71 FRANÇOISE BOUCHET-SAULNIER, THE PRACTICAL GUIDE TO
HUMANITARIAN LAW 192 (2013).
72 [2004] ICJ Rep 136
73 [2004] ICJ Rep 136
213
Court of Justice (ICJ) established that HRL is applicable during

armed conflicts and occupations by belligerents.74
A. Jurisprudence of the Simultaneous Application of HRL and IHL
For these reasons, it becomes impossible to dichotomize

HRL and IHL based on their applicability criteria, since both HRL
and IHL are applicable in peacetime as well as in war.75 In the Wall
case’s famous advisory opinion, the ICJ explicitly discussed this
dilution of difference by establishing that HRL and IHL concurrently
apply in armed conflicts and occupations.76 Within the case’s context
of occupants’ belligerent acts, any such actions are “null and void” if
they violate pertinent provisions of IHL or HRL.77 The ICJ further
elaborated in this case that construction of a wall in Palestine violated
HRL (Articles 46 and 52 of the Hague Regulations of 1907) and IHL
(Article 53 of IV Geneva Convention).78 The ICJ supplemented the
argument that the construction of the wall violated IHL by ruling that
it was not a “military necessity.”79 In support of the argument that the
construction of the wall violated HRL, the ICJ more particularly
74 Tom Ruys and Sten Verhoeven, The Applicability of International

Humanitarian Law and Human Rights Law in Occupied Territories, in International
Humanitarian Law and Human Rights Law: Towards a New Merger in
International Law 155, 155 (Roberta Arnold, Noëlle Quénivet eds., 2008) ;see also
Sikander Ahmed Shah, International Law and Drone Strikes in Pakistan: The Legal
and Socio-political Aspects 117 (2014).
75 JOST DELBRÜCK & WILFRIED FIEDLER, supra note 39, at 196; see also
Levie, supra note 39, at 119.
76 Kessing, supra note 41, at 133.
77 Theodor Schweisfurth, The International Law Commission’s Articles on State
Responsibility and the German Federal Constitutional Court, in From Bilateralism to
Community Interest: Essays in Honour of Judge Bruno Simma 1298, 1306 (Ulrich
Fastenrath et al. eds., 2011).
78 Mika Nishimura Hayashi, The Martens Clause and Military Necessity, in The
Legitimate Use of Military Force: The Just War Tradition and the Customary Law
of Armed Conflict 141 (Howard M. Hensel ed., 2016); Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2004 I.C.J. ¶ 132 (July 9).
79 Yutaka Arai, The Law of Occupation: Continuity and Change of
International Humanitarian Law, and Its Interaction with International Human
Rights Law 188 (2009); Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. ¶ 135 (July 9).
214
stated that the construction violated the right to work, the right to
health, the right to education, and the right to a basic standard of
living under the International Covenant on Economic, Social and
Cultural Rights (ICESCR).80 The court added that the construction
also violated the right to movement and the right to choose a place of
residence under Article 12 of the International Covenant on Civil and
Political Rights (ICCPR).81
This parallel application of HRL and IHL can also be seen in

the occupation case of Congo v. Uganda.82 In this case, the state of
Congo contended that Uganda’s occupation of Congolese territory
violated HRL and IHL with respect to the Congolese population83.
The court explicitly established that Uganda had indeed
simultaneously violated HRL and IHL.84 The mere fact that the court
established that Uganda had violated both sets of rules
simultaneously85 supports the assertion that both legal frameworks
are concurrently applicable. The International Criminal Tribunal
(ICT) also validates this assertion, as it has established the concept
that HRL and IHL complement each other and their respective
scopes and applications overlap.86 The ICT adds that this nexus exists
because IHL and HRL have similarities in their core values, goals,
purposes, and terminologies.87 However, the ICT set criteria for
fusing HRL and IHL by stating “that notions developed in the field
of human rights can be transposed in international humanitarian law
80 Gilles Giacca, Economic, Social, and Cultural Rights in Armed Conflict

90 (2014).
81 KAREN DA COSTA, THE EXTRATERRITORIAL APPLICATION OF
SELECTED HUMAN RIGHTS TREATIES 79 (2012).
82 Morse Tan, North Korea, International Law and the Dual
Crises: Narrative and Constructive Engagement 133 (2015).
83 DINAH SHELTON, REGIONAL PROTECTION OF HUMAN RIGHTS VOL. 1,
910 (2010).
84 TAN, supra note 82, at 133.
85 Id.
86 Alexander Orakhelashvili, The Interaction Between Human Rights and
Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?, 19 THE EUR. J.
OF INT’L LAW 161, 164 (2008).
87 Id.
215
only if they take into consideration the specificities of the latter body
of law.”88
B. Application of HRL and IHL during Emergencies
Further, there are certain derogable human rights that are not
applicable during armed conflicts or public emergencies.89 Article 4 of
the ICCPR and Article 15 of the European Convention of Human
Rights (ECHR) provide room for the derogability of human rights
during such instances.90 According to these Articles, a state can
derogate from its HRL responsibilities in situations where the very
existence of the state is at stake.91 But the derogability of some rights
does not mean that the state can ignore its other responsibilities, such
as its obligations under IHL.92 This assertion is explicitly incorporated
in the UN Human Rights Committee General Comment No. 2993. As
soon as the state deviates from its HRL responsibilities, IHL
obligations are applicable,94 because IHL is specifically applicable in
situations in which human rights are derogated and IHL is applicable
during armed conflicts or war.95
88 Damien Scalia, Human rights in the context of international criminal law:

respecting them and ensuring respect for them, in RESEARCH HANDBOOK ON HUMAN
RIGHTS AND HUMANITARIAN LAW 575, 577 (Robert Kolb & Gloria Gaggioli eds.
2013).
89 HARVEY, SUMMERS, & WHITE, supra note 64, at 162; see also Evan J.
Criddle, Introduction: Testing Human Rights Theory During Emergencies, in HUMAN
RIGHTS IN EMERGENCIES 1, 3 (Evan J. Criddle ed. 2016).
90 See id. at 64.
91 ERIKA DE WET, THE CHAPTER VII POWERS OF THE UNITED NATIONS
SECURITY COUNCIL 344 (2004).
92 A.H. Abdel Salam, Constitutional Challenges of the Transition, in THE
PHOENIX STATE: CIVIL SOCIETY AND THE FUTURE OF SUDAN 1,12–13 (A.H.
Abdel Salam & Alexander De Waal eds., 2001).
93 SARAH JOSEPH, MELISSA CASTAN, THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY 916
(3rd ed. 2013).
94 Arnold & Quénivet, supra note 72, at 7, 384.
95 See id. at 502.
216
The norms of IHL are generally based on the notions of

military necessity, proportionality, and distinction.96 These principles
attempt to humanize violence and destruction and do not really
regulate the rights and powers of the belligerents.97 The notions of jus
in bello and jus ad bellum combined can be used to evaluate the
justification of the belligerent’s actions to ensure the legality of the
aggression or armed conflict98 and to see whether, in light of any
impact such belligerence may have, IHL regulations come into play.99
Therefore, the application of HRL in harmony with IHL is
appropriate to judge crimes against humanity or evaluate human
suffering.100 For instance, many belligerents argue that IHL is
applicable in fighting terrorism;101 however, in a true sense of the
legality of the use of force, since there is no material armed conflict,
IHL is not applicable under Article 2 of the Geneva Convention of
1949 and its Additional Protocol I of 1977.102 As IHL and HRL are
closely related and can be interchangeably applicable in certain
circumstances, yet cannot change places in others, it is important to
discuss the relationship and interaction between IHL and HRL in
detail. The next two sections of this paper will respectively discuss
the relationship and interaction between IHL and HRL.
IV. RELATIONSHIP: THE NOTION OF “LEX SPECIALIS”
After concluding that HRL protection is not withdrawn

during armed conflicts and emergencies, the ICJ in its Wall case
96 Noah Weisbord & Carla Reyes, War Crimes, in International Crime and
Justice 321, 326 (Mangai Natarajan ed., 2010).
97 Sandoz, supra note 32, at 5; see also Banks, supra note 33, at 19.
98 Asa Kasher, The Gaza Campaign (Operation cast lead) and the Just War Theory,
in EDUCATIONAL CHALLENGES REGARDING MILITARY ACTION 25, 37 (Hubert
Annen et al. eds., 2010).
99 Marko Milanovic & Vidan Hadzi-Vidanovic, A taxonomy of armed conflict,
in Research Handbook on International Conflict and Security Law 256, 256 (Nigel
D. White & Christian Henderson eds., 2013).
100 See id. at 256.
101 See U.C. JHA, DRONE WARS: ETHICAL, LEGAL AND STRATEGIC
IMPLICATIONS: ETHICAL, LEGAL AND STRATEGIC IMPLICATIONS 102-3 (2014).
102 Keiichiro Okimoto, Violations of International Humanitarin Law by United
Nations Forces and their Legal Consequences, in Yearbook of International Humanitarian
Law Vol. 6 199, 209 (Timothy McCormack ed., 2003).
217
advisory opinion established certain conditions for a relationship

between HRL and IHL.103 The court said that:
Some rights may be exclusively matters of [IHL];

others may be exclusively matters of [HRL]; yet
others may be matters of both these branches of
international law. In order to answer the question put
to it, the Court will have to take into consideration
both these branches of international law, namely
human rights law and, as lex specialis, international
humanitarian law.104
ICJ bifurcated all humanitarian law into HRL and IHL by

defining an exclusive framework of these rights regarding their
applicability in certain distinct circumstances. Yet, it also
acknowledged that there can be situations in which these lines can
merge and both sets of rules can be simultaneously applied.105 ICJ
ruled that, in such a relationship between HRL and IHL, the doctrine
of lex specialis is applicable.106
In legal doctrine, lex specialis is a guideline principle related to

the interpretation of a law that is applicable in both the domestic and
international legal settings.107 Lex specialis is a Latin phrase that means
103 Stuart Casey-Maslen & Sharon Weill, The use of weapons in armed conflicts,
in Weapons Under International Human Rights Law 274 (Stuart Casey-Maslen ed.,
2014).
104 Martin Dixon et al., Cases & Materials on International Law 242 (6th
ed., 2016).
105 Matthew Happold, International Humanitarian Law and Human Rights Law,
in RESEARCH HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW
444, 460 (Nigel D. White et al. eds., 2013).
106 Sarah McCosker, The Interoperability of International Humanitarian Law and
Human Rights Law: Evaluating the Legal Tools Available to Negotiate their Relationship, in
INTERNATIONAL LAW IN THE NEW AGE OF GLOBALIZATION 145, 155 (Andrew
Byrnes et al. eds., 2013)
107 Vik Kanwar, Treaty Interpretation in Indian Courts: Adherence, Coherence, and
Convergence, in The Interpretation of International Law by Domestic
Courts: Uniformity, Diversity, Convergence 239, 254 (Helmut Philipp Aust et al.
eds., 2016).
218
“law governing a specific subject matter,”108 derived from a renowned

axiom, lex specialis derogat legi generali, which means “special laws
override general laws.”109 This concept mandates that, in certain
settings, if two sets of laws simultaneously govern the legal
framework of a given situation, then the rules with specific scope (lex
specialis) will override the general set of rules (lex generalis).110
For instance, in the specific setting of the right not to be

arbitrarily deprived of life under Article 6 of ICCPR, the ICJ
illustrated the notion of lex specialis111 as follows:
In principle, the right not arbitrarily to be deprived of

one’s life applies also in hostilities. The test of what is
an arbitrary deprivation of life, however, then falls to
be determined by the applicable lex specialis, namely,
the law applicable in armed conflict which is designed
to regulate the conduct of hostilities.112
By establishing this, the ICJ overlooked the general

applicability of lex generalis in relation with HR and concentrated on
the specific applicability of lex specialis, which overrode the prior set
of general rules.113 It is interesting to note here that if the relevant
facts involved a general deprivation of life, then the general right to
life should have been applied. But, since the case concerned the
arbitrary deprivation of life, the court only analyzed applicable IHL
108 UNITED NATIONS ENVIRONMENT PROGRAMME, PROTECTING THE

ENVIRONMENT DURING ARMED CONFLICT: AN INVENTORY AND ANALYSIS OF
INTERNATIONAL LAW 56 (2009), http://www.un.org/zh/events/environment
conflictday/pdfs/int_law.pdf.
109 Klaus Vogel, The domestic law perspective, in TAX TREATIES AND
DOMESTIC LAW 3, 3 (Guglielmo Maisto ed., 2006).
110 RESEARCH HANDBOOK ON EU HEALTH LAW AND POLICY 565
(Tamara K. Hervey et al. eds., 2017).
111 Gerd Oberleitner, Human Rights in Armed Conflict: Law, Practice,
Policy 90 (2015).
112 Id.
113 McCosker, supra note 102, at 155.
219
under Article 6, while explicitly making reference to lex specialis

doctrine.114
Michael Dennis argues that during armed conflicts, the

application of IHL categorically excludes the application of HRL,
such that HRL ceases to exist by applying the principle of lex
specialis.115 This is because HRL is more generalized law whereas IHL
is largely specific in nature, applying directly to the particular settings
of armed conflicts.116 Analyses like this are underhanded attempts to
undermine the application of HRL during armed conflicts, which
goes against the conventional standards of the international
community. For instance, the ICJ went so far as to explicitly establish
that HRL does not cease to exist during wars.117 Dennis’s argument is
also not in congruence with the principle of lex specialis, which
concerns two set of rules simultaneously applying, and conflicting,
within a particular condition.118 There can be situations where HRL
and IHL are both lex specialis.119 Therefore, the applicability of HRL
and IHL can be delineated within the confines of a given situation of
armed conflict, where one set of rules cannot ab initio exclude the
other without considering the appropriation of the other’s relevant
laws.120
Inversely, the true interpretation of the doctrine of lex specialis

by rational scholars shows that specific IHL are given preeminence
114 See OBERLEITNER, supra note 107, at 90.

115 See Michael J. Dennis, Application of Human Rights Treaties
Extraterritorially to Detention of Combatants and Security Internees: Fuzzy Thinking All
Around?, 12 ILSA J. OF INTERNATIONAL & COMPARATIVE LAW 459, 472-480; see
also Conor McCarthy Legal Conclusion of Interpretative Process? Lex Specialis and the
Applicability of International Human Rights Standards, in INTERNATIONAL
HUMANITARIAN LAW AND HUMAN RIGHTS LAW: TOWARDS A NEW MERGER IN
INTERNATIONAL LAW 101, 107 (Roberta Arnold et al. eds., 2008).
116 Patrick Knäble, The Relationship Between International Humanitarian Law and
International Human Rights Law in Situations of Armed Conflict, THE NEW ZEALAND
POSTGRADUATE LAW E-JOURNAL 20 (2017), https://cdn.auckland.ac.nz/assets/
nzpglejournal/Subscribe/Documents/2006-2/1-PatrickHRHL.pdf.
117 Jordan J. Paust, Beyond the Law: The Bush Administration’s Unlawful
Responses in the “War” on Terror 210 (2007).
118 See Oberleitner, supra note 107, at 101.
119 Id.
120 Id.
220
over generalized HRL when both HR and IHL present contradictory

resolutions against unchanged given settings.121 For instance, during
an armed conflict, IHL would allow killing of belligerents within the
rules of distinction, necessity, and proportionality;122 however, under
HRL, it would be a violation to kill the same individuals due to the
wider regulations of proportionality in HRL.123 However, it is
pertinent to note here that, while such an analysis dismisses the
contradiction between HRL and IHL, it is ambiguous whether it
accommodates the ICJ’s established norms under the Wall case and
the distinguished advisory opinion of the Nuclear Weapons case. For
instance, it is essential to ask why the ICJ established that life could
not be deprived arbitrarily by IHL and reasoned that IHL only
interprets an interjection of the word arbitrary within the same
context,124 while disregarding the fact that IHL did not completely
overlook or abrogate the right to life under HRL; rather, it
complemented the right to life.125
The works of Professor Martti Koskenniemi, an international

lawyer and a former Finnish diplomat, are key to understanding the
scope and functions of the doctrine of lex specialis in relation to lex
generalis in such a situation.126 According to Koskenniemi, the
relationship between HRL and IHL is best demonstrated in two
ways:
[Primarily], a particular rule may be conceived as an

expression to the general rule. In this case, the
particular derogates from the general rule.
[Secondly], a particular rule may be considered an
application of the general rule in a given
121 Kjetil Mujezinović Larsen, The Human Rights Treaty Obligations of

Peacekeepers 257 (2012).
122 Jens David Ohlin & Larry May, Necessity in International Law 105
(2016).
123 William A. Schabas, The Right to Life, in The Oxford Handbook of
International Law in Armed Conflict 365, 385 (Andrew Clapham et al. eds., 2014).
124 See Knäble, supra note 112, at 20.
125 See id. at 20–22.
126 See Martti Koskenniemi, Study on the Function and Scope of the Lex
Specialis Rule and the Question of “Self-Contained Regimes”: Preliminary Report:
Addendum (UN, 2004).
221
circumstance. That is to say, it may give instructions

on what a general rule requires in the case at hand.127
Koskenniemi states that lex generalis falls under HRL because

it offers a general scope of rights, whereas lex specialis falls under IHL
because it offers a specific scope of application.128 Through
Koskenniemi’s analysis, it becomes clear that particular rules (lex
specialis) offer two major functions. One, such rules can either
abrogate general rules by expressing exclusion; or, two, they can
complement general rules by lending specificity to the given situation
by expressing inclusion.129 Either way, lex specialis governs the setting
of facts in a given situation.130
Consequently, the question of lex specialis is either expressly

included in the general rules or deliberately excluded from the legal
frameworks.131 These conditions will be referred to as the inclusion
and exclusion, respectively, of lex generalis while applying lex specialis.
On one side, the deviation of state laws from HRL in times of war or
emergency is an example of deliberately excluding certain rules by
explicit expression. The application of lex specialis does not necessarily
exclude lex generalis.132 If the legal framework does not specifically
exclude lex generalis, then it is not necessarily excluded by only the
application of lex specialis. On the other side, principles of jus cogens
and the incorporation of non-derogatory human rights are examples
of expressing the inclusion of lex generalis in the application of lex
specialis.133 Other than these two scenarios, in situations where the law
is silent on a given issue regarding lex specialis, courts are entrusted to
interpret the predominance of legal sets.134
127 Omer Faruk Direk, Security Detention in International Territorial

Administrations: Kosovo, East Timor, and Iraq 103 (2015).
128 See Knäble, supra note 112, at 20–22.
129 Id.
130 Carla Ferstman, International Organizations and the Fight for
Accountability 98 (2017).
132 Id.
134 Id.
222
As discussed, legal frameworks may expressly include or

exclude general rules while applying lex specialis. Application of lex
specialis can build up details upon general rules in a specific scenario.
This consideration is applicable in situations where lex specialis merely
adopts the same principles of general rules while applying them in
more specific situations with additional rubrics.135 This kind of
application of lex specialis requires close judicial scrutiny and
interpretation. An analysis of the ICJ on the inclusion of word
“arbitrary” under Article 6 of the ICCPR in the Nuclear Weapons
advisory opinion provides a precise illustration of this type of lex
specialis application.136
Koskenniemi’s model of analysis of lex specialis concerns the

application of lex specialis and lex generalis, yet it raises certain novel
questions as well. Koskenniemi argues that “IHL must be regarded as
lex specialis in relation to—and thus override—rules laying out the
peacetime norms relating to the same subjects.”137 Koskenniemi’s
consideration of IHL as lex specialis and HRL as lex generalis raises
multiple questions: is this consideration always applicable in every
situation? In a same given situation, does IHL always supersede
HRL? And does perpetually considering IHL as lex specialis encumber
HRL’s jurisprudence?
Koskenniemi argues that, since lex specialis is about applying

more specific rules against general rules, IHL is lex specialis, because it
is applied during armed conflicts and is therefore more specific.138
Koskenniemi acknowledges that general and special rules are
identified through their application in a given situation.139 By
considering IHL as lex specialis in armed conflicts, he overlooks the
possibility that the criterion of an existing armed conflict does not
necessarily particularize a situation by prioritizing IHL, because there
can be situations within armed conflicts in which HRL can offer
135 Nehal Bhuta, States of Exception: Regulating Targeted Killing in a Global Civil
War, in HUMAN RIGHTS, INTERVENTION, AND THE USE OF FORCE 243, 255 (Philip
Alston et al. eds., 2008)
136 See id. at 255.
138 DIREK, supra note 123, at 103.
139 See id.
223
more comprehensive regulation than IHL.140 For instance, the

ICESCR (HRL) is more specific regarding regulations of health than
Article 55 of GC IV (IHL).141 More specifically, Articles 7, 10, and 12
of the ICESCR (HRL) complement Article 55 of GC IV (IHL).142
There seems to be no reason why HRL in this situation cannot
complement IHL during armed conflict. Thus, it is rationally
established that during an armed conflict, HRL can be more
elaborative than IHL.143 Therefore, HRL can be considered lex
specialis during an armed conflict.144 The next section of this paper will
illustrate in detail that HRL can be more fitting and elaborative in
certain situations than IHL can be. Consequently, both HRL and
IHL can be considered lex specialis, and the application of the doctrine
of lex specialis does not obstruct HRL jurisprudence.145 Moreover, it
can also be seen that lex specialis can complement general rules by
adding details to their specific application.146
Another perspective from which to scrutinize the relationship

between HRL and IHL in lex specialis is to consider whether, when lex
specialis are applicable to a given situation and lex generalis are
derogable within same context, interpreting lex generalis can offer any
consideration. For instance, in the Nuclear Weapons advisory opinion,
the ICJ considered the interpretation of the word “arbitrary” in
analyzing IHL as lex specialis, or specific rules.147 In this opinion, does
analyzing the right to life under Article 6 of the ICCPR offer any
benefit? Why did the ICJ even discuss the ICCPR’s general notion of
the right to life when it could have easily just applied HRL as a
specific law? Some scholars argue that such inclusion is meant to
140SIKANDER AHMED SHAH, INTERNATIONAL LAW AND DRONE STRIKES

IN PAKISTAN: THE LEGAL AND SOCIO-POLITICAL ASPECTS 114 (2015).
141See id.
142Id.
143 Id.
144 KNUT BOURQUAIN, FRESHWATER ACCESS FROM A HUMAN RIGHTS
PERSPECTIVE: A CHALLENGE TO INTERNATIONAL WATER AND HUMAN RIGHTS
LAW 169 (2008).
146 See BOURQUAIN, supra note 1407, at 169.
147 Ian Henderson, The Contemporary Law of Targeting 33–34 (2009).
224
encompass the exercise of jurisdiction over a treaty,148 while others

argue that such an inclusion of HRL alongside IHL is to demonstrate
moral condemnation that an action undignifies the human right to
life.149 However, this inclusion is merely embellishment; it does not
offer any supplemental security to people’s lives during armed
conflict. For these reasons, it can be cogently construed that
discussion of the term “arbitrary” in the advisory opinion includes
both IHL and HRL.150
Moreover, to complement HRL, the use of the word

“arbitrary” has to consider the rules of IHL, such as the notion of
necessity during armed conflict. Within the same context, the term
has to also consider guidelines of HRL, such as the right to life.151
The combined effect of the considerations of HRL and IHL makes it
more difficult for an oppressor or aggressor to justify its actions
regarding the killing of civilians during the course of an armed
attack.152 Through such inclusion, the conventional protection of the
right to life during an armed conflict can be easily reinforced. In
conclusion, such protection of reinforcement demands that lex
specialis must also incorporate interaction between HRL and IHL.153
V. INTERACTION
In one school of thought, a handful of scholars believe that

HRL can be used to complement IHL by simultaneously applying
both sets of rules.154 In the other school of thought, academics argue
that, since IHL is more specific and particular, resorting to HRL
148 Daniel H. Joyner, International Law and the Proliferation of Weapons

of Mass Destruction 210 (2009).
150 Id.
151 Marko Milanovic, Norm Conflicts, International Humanitarian Law, and
Human Rights Law, in International Humanitarian Law and International Human
Rights Law 95, 99 (Orna Ben-Naftali ed., 2011).
152 U.N. Office of the High Comm’r for Human Rights, Istanbul
Protocol: Manual on the Effective Investigation and Documentation of Torture
and Other Cruel, Inhuman Or Degrading Treatment Or Punishment, at 3, U.N.
Sales No. E.04.XIV.3, (2004).
154 See SHAH, supra note 136, at 114.
225
while considering IHL cannot addconsiderable value in application.155

The latter school substantiates its argument by contending that
during armed conflicts, military personnel in action need concrete,
practical rules.156 This school adds that, within the same context, the
practical application of IHL offers specific and concrete scope, while
HRL is more generalized and abstract.157 Therefore, during an armed
conflict, abstract HRL cannot add any value, and IHL and HRL
shouldn’t be applied simultaneously.158 For instance, the guidelines
under GC III do not abstractly ask military personnel to just treat
injured people compassionately. Rather, it provides a detailed
framework, substantial guidelines about running camps, and positive
duties regarding helping injured people.159
Consequently, IHL can offer more extensive protections to

individuals during armed conflicts owing to its specificity and
practicality.160 Nonetheless, these protections are guided through
regulations via a planned legal framework, and the planning of this
legal framework requires guidance and direction.161 In such a
scenario, the frameworks and guidelines of HRL are indispensable. In
a way, HRL is used to lay the foundations of IHL guidelines,
essentially creating a system in which HRL and IHL work side-by-
side.162 For instance, careful planning about what type of property can
and cannot be targeted during an armed conflict stems from the
principles of HRL.163 Analogous to the second school of thought
above, it can be argued that military personnel do not directly follow
the guidelines of IHL but instead follow directives of military codes
of conduct; therefore, IHL is not applicable at all. Such a conclusion
155 DIREK, supra note 123, at 103-4.

156 Nehal Bhuta, The Frontiers of Extraterritoriality—Human Rights Law as
Global Law, in The Frontiers of Human Rights: Extraterritoriality and Its Challenges
1, 17 (2016).
157 Id.
158 Id.
159 Emily Crawford, Armed Conflict, International, in The Law of Armed
Conflict and the Use of Force: The Max Planck Encyclopedia of Public
International Law 44, 48 (Frauke Lachenmann & Rüdiger Wolfrum eds., 2017).
160 See Bhuta, supra note 152, at 17.
161 See Crawford, supra note 155, at 48.
162 PHIL ORCHARD, A RIGHT TO FLEE 231 (2014).
226
would be wrong and irrational, as “military codes of conduct” are

developed by following the strict guidelines of IHL.164 Similarly, it
would be unreasonable to draw the conclusion that HRL is not
applicable during armed conflict because military personnel only use
specified IHL: IHL guidelines were developed following the
principles of HRL.165 In other words, if military codes can resort to
HRL, there is no reason why IHL cannot do so.166
In fact, when a set of rules degenerates and requires richness

in a certain area, it can always resort to the other set.167 This means
that the legal framework of HRL often relies on the specificity of
IHL, and rules of IHL often rely on the establishment and
application of HRL.168 So, the interpretations of HRL and IHL
routinely interact with each other for reference, application,
practicality, and specificity.169 For instance, while interpreting the
right to life under Article 6 of ICCPR (HRL) in an armed conflict,
the ICJ relied on IHL owing to its particularity of the word
“arbitrariness.”170 Similarly, IHL under Article 3 of GC III relied on
HRL for the interpretation of “inhumane treatment” in the context
of the war camp.171 More specifically, civilians’ judicial guarantees
under the Geneva Convention cannot be ascertained without
resorting to the understandings and practicality of HRL.172 Similarly,
other prevailing guarantees for individuals and courts under Article
164 United Nations, United Nations: General Assembly, Resolutions and

Decisions Adopted by the General Assembly During Its Fifty-ninth
Session: Volume I - Resolutions (14 September–23 December 2004), Issue 49, 66
(UN, 2005).
165 ORCHARD, supra note 158, at 231.
167 Tristan Ferraro, The law of occupation and human right law: some selected issues,
in, RESEARCH HANDBOOK ON HUMAN RIGHTS AND HUMANITARIAN LAW 273,
275 (Robert Kolb & Gloria Gaggioli eds. 2013).
168 Id.
169 Id.
171 CONDÉ, supra note 18, at 126.
227
84 of GC III are complemented by the HRL concepts of fairness,

neutrality, and liberty.173
A. Transnational Armed Conflict
In transnational armed conflicts, HRL and IHL readily

interact with each other in order to expand protections to people
living in hostile territories.174 More particularly, during international
armed conflicts some individuals may not be protected by IHL at all,
and the application of expansive HRL can protect their lives and
well-being. IHL offers protection to nationals of an attacked and
oppressed nation,175 whereas HRL can expand this protection to
nationals of an aggressive state.176 For instance, Article 4 of GC IV
under IHL only covers nationals of an oppressed or attacked
nation.177 Scholars argue that the right to life under HRL can be
extended to safeguard the rights of citizens of the aggressor state.178
Similarly, nationals of any country neutral to a conflict are not
protected under Article 4 of GC IV;179 the HRL right to life can be
extended to safeguard the rights and lives of these individuals in a
similar manner.180
Analogously, the principles of IHL interact with HRL in the

situations and scenarios of occupied territories.181 When any territory
is occupied, many citizens living in that territory as civilians continue
to live under military occupation. The belligerent state rules these
173 Id.
174 See kinds of armed conflict and interaction between HR and HL in
Christine Bell, Post-conflict Accountability and the Reshaping of Human Rights and
Humanitarian Law, in International Humanitarian Law and International Human
Rights Law 328, 338 (Orna Ben-Naftali ed., 2011).
175 Roberta Arnold, The liability of civilians under international humanitarian law’s
war crimes provisions, in Yearbook of International Humanitarian Law 344, 358 (H.
Fischer & Avril McDonald eds., T.M.C. Asser Press, Vol. 5 2002).
176 Yoram Dinstein, The International Law of Belligerent Occupation 74–
75 (2009).
177 See Arnold, supra note 170, at 358.
178 See DINSTEIN, supra note 172, at 74–75.
179 See Arnold, supra note 170, at 358.
180 See id; see also DINSTEIN, supra note 169, at 74–75.
181 DIREK, supra note 123, at 103.
228
occupied territories and the lives of these civilians. In this context,

however, HRL does not offer much help regarding the protection of
the usual rights of these civilians other than providing rudimentary
principles, such as the notion of distinction.182 Rather than only
offering the protection of HRL, the protection of the normal human
rights applicable during peacetime must also be extended to civilians
living in these occupied territories.183 Scholars have pointed out that
the protection offered under IHL is obsolete, and this protection was
only meant for wartime and armed conflicts. Situations like military
occupations that last decades, such as the occupations currently going
on in the Middle East, were never envisioned when the rules of IHL
were laid down.184 Therefore, in the occupied territories, normal
peacetime principles of HRL must also be extended to civilians.185
For example, the right to a fair trial must be exercisable when
individuals are routinely detained without probable cause, as has been
the case in Palestine for decades.186 Similarly, the freedom of
expression and non-derogable human rights must also be offered to
civilians living under occupation.187 Likewise, legal doctrines of HRL
regarding national security and public order can be evaluated to
determine the reasonability of transfers of civilian population during
armed conflict under Article 49 of GC IV.188
Similarly, IHL must be used to complement HRL in

situations where HRL lacks detailed orientation. For instance, HRL
does not offer detailed protection for civilians in missing persons
cases in wartime or peacetime,189 whereas GC III and GC IV have a
detailed framework regarding the protection of missing persons in
occupied territories.190 GC obliges occupying states to provide
182 See Arai, supra note 77, at 310.

183 See id.
185 See ARAI, supra note 77, at 310.
186 ENCYCLOPEDIA OF THE PALESTINIANS 206 (Philip Matta ed., 2005).
187 See ARAI, supra note 77, at 310 & 491.
188 See Vincent Chetail, The Transfer and Deportation of Civilian, in The 1949
Geneva Conventions: A Commentary 1185, 1188 (Andrew Clapham et al. 2015).
189 Julie Martin, The Returning Casualty: the excavation of a communist re-education
camp cemetery at Lang Da, Yen Bai Province, Vietnam, in FORENSIC ARCHAEOLOGY: A
GLOBAL PERSPECTIVE 507, 521 (W.J. Mike Groen et al. eds., 2015).
229
particulars of detained persons regarding the locations and reasons of

their imprisonment. GC even goes as far as to oblige states to recover
missing persons and investigate their cases.191 Moreover, IHL can
extend more protection to civilians than HRL, because IHL does not
derogate in times of war. Rather, IHL is more particularly applicable
to emergencies and armed conflicts.192
B. Nontransnational Armed Conflict
The interaction of HRL and IHL is more ad hoc in non-

international armed conflicts than in transnational armed conflicts, as
IHL is more easily applicable in transnational armed conflicts193 and
HRL is more easily applicable in non-transnational armed conflicts.194
Article 3 of GC provides for rudimentary IHL principles in non-
transnational armed conflicts;195 though these principles are appended
by additional protocols and other developed nations within IHL, the
overall legal framework for the situations of non-transnational armed
conflict is still less developed than in transnational armed conflicts.196
For these reasons, it is only reasonable and efficient to resort to HRL
during non-transnational armed conflicts while applying IHL.197 For
instance, Article 14 of ICCPR and Article 6 of ECHR, together with
jurisprudential scope of HRL,198 give a true understanding of the
functioning of IHL in application and practicality of Article 3 of
191 Id.
192 Council of Europe, Guantánamo: Violation of Human Rights and
International Law 98 (Council of Europe Publishing, 2007).
193 See id.
194 Laura Perna, The Formation of the Treaty Rules Applicable in Non-
international Armed Conflicts 47 (2006); see also, Emily Crawford, The Treatment
of Combatants and Insurgents Under the Law of Armed Conflict 118 (2010).
195 See Lindsay Moir, The concept of Non-International Armed Conflict, in The
1949 Geneva Conventions: A Commentary 391, 401 (Andrew Clapham et al. 2015);
see also Anthony D. Cullen, The Concept of Non-International Armed Conflict in
International Humanitarian Law (2010).
196 See Solis, supra note 3, at 285.
197 Sandesh Sivakumaran, The Law of Non-International Armed Conflict
500 (2012).
198 Yusuf Aksar, Implementing International Humanitarian Law: From the
Ad Hoc Tribunals to a Permanent International Criminal Court 59 (2004); see also
Scalia, supra note 85, at 581.
230
GC,199 which provides basic judicial and general guarantees for

civilians and courts.200
By conjoining the legal sets of rules of HRL and IHL, the

protection of civilians can be expanded during non-transnational
armed conflicts.201 On one side, the legal framework of HRL is
already in place to protect individuals against infringements of their
rights.202 On the other side, during an internal armed conflict between
two groups or between the state and organized groups, a government
can choose to apply the legal mechanisms of IHL.203 Applying IHL
during non-transnational conflicts together with HRL in an
interaction is made possible204 by the malleability of the threshold to
apply IHL under Article 3 of GC.205 For instance, Article 3 of GC
does not outline the limits or severity of violence necessary to
constitute an armed conflict which would trigger the application of
IHL.206 However, Article 1 of Additional Protocol II (AP II) details
prerequisites of Article 3 of GC to constitute an armed conflict.207
The threshold under AP II is higher than that of Article 3 of GC,208
since AP II requires two main prerequisites that allow the application
of IHL. The first prerequisite is that the rebel forces must be
sufficiently “organized” so as to be able to use substantial force.209
The second precondition is that these groups must retain a
considerable part of the state’s territory from which they can organize
199 See Yutaka Arai-Takahashi, Law-Making and the Judicial Guarantees in

Occupied Territories, in THE 1949 GENEVA CONVENTIONS: A Commentary 1421,
1433 (Andrew Clapham et al. 2015)
200 Id.
201 SIVAKUMARAN, supra note 193, at 500.
202 PERNA, supra note 190, at 47; see also CRAWFORD, supra note 190, at 118.
203 SIVAKUMARAN, supra note 193, at 500.
204 See id.
205 William A. Schabas, Developments in the law of genocide, in Yearbook of
International Humanitarian Law 131, 141(H. Fischer & Avril McDonald eds.,
T.M.C. Asser Press, Vol. 5 2002).
206 Kresimir Kamber, Prosecuting Human Rights Offences: Rethinking the
Sword Function of Human Rights Law 240 (2017).
207 See Schabas, supra note 201, at 142.
208 See id.
209 Herman von Hebel & Darryl Robinson, Crimes within the Jurisdiction of the
Court, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME
STATUTE: ISSUES, NEGOTIATIONS AND RESULTS 79, 120 (Roy S.. Lee ed., 1999).
231
extensive attacks against the state.210 Because states rarely

acknowledge that they have lost substantial territory to rebellious
groups, AP II has not been used in practice.211 Arguably, since the
threshold of IHL in non-transnational force is intangible,212 the legal
framework of HRL can extend assistance in safeguarding the rights
of civilians.213
Furthermore, IHL and HRL can interact through application

in internal conflicts and disorders.214 Article 1 of AP II explicitly
excludes internal conflicts and disorders from the ambit of armed
conflicts and application of IHL;215 however, internal disorders can
invoke its application.216 Still, internal armed conflicts can deteriorate
state conditions, and escalated violence—such as riots and
tensions—can instigate a state emergency such that states can
derogate from basic human rights obligations 217 and apply IHL.218
Within the same context, a strict division between HRL and IHL will
hamper protection to civilians, such that neither IHL nor HRL would
be applicable, because in practice most human rights are not
applicable during emergencies219 and IHL is not applicable in an
210 Emily Crawford, Identifying the Enemy: Civilian Participation in

Armed Conflict 179 (2015).
212 See Schabas, supra note 201, at 142.
213 Sivakumaran, supra note 193, at 500.
214 Claude Bruderlein, HPCR Advanced Prationer’s Handbook on Commissions of
Inquiry, in Practitioner’s Handbook on Monitoring, Reporting, and Fact-
Finding: Investigating International Law Violations 7, 25 (Rob Grace et al. eds.,
2017).
215 Kriangsak Kittichaisaree, Public International Law of Cyberspace 225
(2017).
216 Yutaka Arai, The Law of Occupation: Continuity and Change of
International Humanitarian Law, and Its Interaction With International Human
Rights Law 300 (2009).
217 See Dieter Fleck, Development of new rule or application of more than one legal
regime?, in CONTEMPORARY CHALLENGES TO THE LAWS OR WAR: ESSAY IN
HONOUR OF PROFESSOR PETER ROWE 51, 64 (Caroline Harvey et al. eds., 2014)
218 A.H. ABDEL SALAM & ALEXANDER DE WAAL, THE PHOENIX
STATE: CIVIL SOCIETY AND THE FUTURE OF SUDAN (2001).
219 See Fleck, supra note 217, at 64.
232
emergency that is not an armed conflict.220 Therefore, it is only

reasonable to incorporate both HRL and IHL in harmony to expand
protection to civilians.221 Conclusively, a hybrid application of non-
derogable human rights and IHL can be fused together to ensure
tranquility of society and protection of civilians, where each set of
rules will work efficiently irrespective of the characteristics of the
case.222
However, including HRL in non-transactional conflicts poses

certain problems regarding practicality and application. This is
because HRL usually obliges states not to infringe upon individuals’
rights.223 In an internal conflict or non-transnational armed conflict, it
is nonstate bodies, groups, or organizations that violate human
rights.224 So, in practice, invoking HRL in the legal realms of IHL is
not truly practical.225 To resolve this issue of practicality, scholars
argue that the interpretation of HRL must be made in such a way that
nonstate bodies, groups, and organizations must also be held
accountable for violating human rights.226 On the other hand, other
scholars suggest that the application of HRL requires effective
control over the boundaries of a state, and if certain forces have
gained control over parts of a country then HRL is unenforceable.227
Therefore, the practicality and enforcement of HRL application
remain intangible during particular conditions of armed conflict
220 Hebel & Robinson, supra note 205, at 120; see also, EMILY CRAWFORD,
IDENTIFYING THE ENEMY: CIVILIAN PARTICIPATION IN ARMED CONFLICT 179
(2015).
221 ARAI, supra note 212, at 310
222 TATHIANA FLORES ACUÑA, THE UNITED NATIONS MISSION IN EL
SALVADOR: A HUMANITARIAN LAW PERSPECTIVE 34 (Martinus Nijhoff Publishers,
1995); see also Milanovic & Hadzi-Vidanovic, supra note 95, at 256.
223 Mona Rishmawi, The Developing Approaches of the International Commission of
Jurists to Women’s Human Rights, in HUMAN RIGHTS OF WOMEN: NATIONAL AND
INTERNATIONAL PERSPECTIVES 340 , 342 (Rebecca J. Cook ed., 2012).
224 See Jean-Marie Henckaerts & Cornelius Wiesener, Human rights obligations
of non-state armed groups: a possible contribution from customary international law?, in
RESEARCH HANDBOOK OF HUMAN RIGHTS AND HUMANITARIAN LAW 146, 149
(2013).
225 Id.
226 Id.
227 Id. at 154, 159.
233
within the uncontrolled territories of a state.228 Nevertheless,

lawmakers are trying to resolve this issue by integrating individual
responsibility in addition to state responsibility under HRL. The
system they are trying to create prohibits grave violations of HRL by
individuals.229 For instance, Article 2 of the Declaration of Minimum
Humanitarian Standards (DMHS) states that “standards shall be
respected by, and applied to all persons, groups and authorities,
irrespective of their legal status and without any adverse
discrimination.”230 Here the DMHS’s explicit obligation to nonstate
bodies to respect HRL is an example of the assimilation of the
problem of HRL’s practicality during nontransnational armed
conflicts.231 Similar to Article 2 of DMHS, Article 28 of the African
Charter of Human Rights (ACHR) states that “[e]very individual shall
have the duty to respect and consider his fellow beings without
discrimination, and to maintain relations aimed at promoting,
safeguarding and reinforcing mutual respect and tolerance.”232
Moreover, the ACHR also unambiguously obliges individuals and
nonstate bodies to respect HRL.233 References and articulations of
approaches, such as Article 28 of the ACHR and Article 2 of the
DMHS, provide feasibility in the application, enforceability, and
practicality of HRL in integration with IHL during nontransnational
armed conflicts.234
228 Id. at 161-62.

229 See generally LYAL S. SUNGA, INDIVIDUAL RESPONSIBILITY IN
INTERNATIONAL LAW FOR SERIOUS HUMAN RIGHTS VIOLATIONS (Martinus
Nijhoff Publishers, 1992).
230 Nils Geissler, Der völkerrechtliche Schutz der Internally Displaced
Persons 314 (1999); see also Christian Tomuschat, Human Rights: Between Idealism
and Realism 314 (2nd ed. 2008).
231 See TOMUSCHAT, supra note 226, at 314.
232 BLACKSTONE’S INTERNATIONAL HUMAN RIGHTS DOCUMENTS 410
(Alison Bisset ed., 10th ed. 2016); see also ANNE-MARIE MOONEY COTTER, THIS
ABILITY: AN INTERNATIONAL LEGAL ANALYSIS OF DISABILITY DISCRIMINATION
129 (2006).
233 Anne-Marie Mooney Cotter, Race Matters: An International Legal
Analysis of Race Discrimination 109 (2016); see also Luis Gabriel Franceschi, The
African Human Rights Judicial System: Streamlining Structures and Domestication
Mechanisms Viewed from the Foreign Affairs Power Perspective 129 (2014).
234 Id.; TOMUSCHAT, supra note 226, at 314.
234
Another perspective on the interaction between IHL and

HRL is in the enforceability of HRL by HRL bodies.235 Some
scholars contend that HRL bodies like the Human Rights Committee
(HRC) cannot review violations and infringement of IHL while
enforcing and reviewing HRL.236 They substantiate their contentions
by arguing that HRL bodies can only encompass the legal
frameworks that define them; therefore, they cannot outstep their
jurisdictional limits.237 For instance, individuals and complainants can
only file complaints, in general, regarding guaranteed rights under the
ICCPR.238
By examining the detailed discussions above regarding IHL

and HRL interactions, it is evident that HRL bodies can review IHL
in their interpretations.239 For instance, HRL bodies can refer to IHL
to understand the context of infringements of HRL during an armed
conflict, whether transnational or internal.240 The courts need to rely
on the concepts of IHL to interpret principles of HRL;241 such was
the case in elaborative discussion of interpreting the term arbitrary
while reviewing the right to life under Article 6 of ICCPR.242
VI. CONCLUSION
IHL and HRL were historically developed in specific

situations for entirely different purposes.243 Both bodies of law
235 William C. Banks, Counterinsurgency Law: New Directions in

Asymmetric Warfare 14 (2013).
236 Id.
237 Id.
238 Id.
239 Larissa van den Herik & Helen Duffy, Human Rights Bodies and
International Humanitarian Law: Common but Differentiated Approaches, in Towards
CONVERGENCE IN INTERNATIONAL HUMAN RIGHTS LAW: APPROACHES OF
REGIONAL AND INTERNATIONAL SYSTEMS 366, 374 (Carla M. Buckley et al. eds.,
2016).
240 See Walter Kalin, Universal human rights bodies and humanitarian law, in
RESEARCH HANDBOOK ON HUMAN RIGHTS AND HUMANITARIAN LAW 441, 445
(Robert Kolb & Gloria Gaggioli eds. 2013).
241 See id; see also Herik & Duffy supra note 235, at 374.
243 Lavoyer, supra note 1, at 214.
235
therefore have different parameters and dynamics, with IHL being

essentially tactical and contractual in nature244 and HRL being much
more universalistic and idealistic.245 This is because the logic of IHL
hinged on the realization of mutual obligations between parties, both
of whom—at least in theory—had an interest in defining and limiting
the character of war.246 Meanwhile, HRL has its origins in the desire
to limit the circumstances in which conflict might be engendered; it
is, moreover, concerned with far wider areas of human activity than
simple conflicts.247 It is these essential tensions that underpin the
difficulties of balancing the two frameworks within armed conflicts,
especially when some participants do not perceive themselves as
bound by the constraints of IHL.248
In terms of their provenance and development, IHL and

HRL are both branches of general international law.249 The
distinction between the two may be illustrated through the situations
in which they are invoked and applied.250 International humanitarian
law is most commonly applied to persons or communities in extremis,
where combatants or noncombatants may be denied the right to life
through various means.251 Meanwhile, HRL is drawn into a much
wider range of situations, both inside and outside the context of
armed conflicts.252 In this respect, the remit of one may be said to
begin where that of the other ends: as the equivalent pressures of
244 See Moir, supra note 48, at 396.

245 See JANABY, supra note 49 at 162.
246 Timothy McCormack, Yearbook of International Humanitarian Law -
2003, Volume 6; Volume 2003, 5 (CUP, 2006); See Also, William C. Banks, New
Battlefields/Old Laws: Critical Debates on Asymmetric Warfare, 19 (COLUMBIA
UNIVERSITY PRESS, 2011).
247 See JANABY, supra note 49, at 162.
248 William C. Banks, Counterinsurgency Law: New Directions in
Asymmetric Warfare, 14 (OUP, 2013).
249 Orna Ben-Naftali, International Humanitarian Law and International
Human Rights Law (OUP, 2011).
250 See Moir, supra note 48, at 396; see also Janaby, supra note 49 at 162.
251 Marco Sassoli, The Role of Human Rights and International Humanitarian
Law in New Types of Armed Conflicts,in International Humanitarian Law and
International Human Rights Law 34, 79 (Orna Ben-Naftali ed., 2011).
252 MOHAMAD GHAZI JANABY, THE LEGAL REGIME APPLICABLE TO
PRIVATE MILITARY AND SECURITY COMPANY PERSONNEL IN ARMED CONFLICTS
162 (2016).
236
reconstruction supplant the immediate perils and uncertainties of

conflict, HRL emerges parallel to IHL operation.253 The latter may
not always be discontinued on the cessation of hostilities, as the onset
of famine or diseases may require its continued operations.254
Meanwhile, the application of HRL is derogable.255 For

instance, Article 15 of the ECHR, Article 4 of the ICCPR, and Article
27 of the ACHR collectively provide a tariff whereby states can
derogate from their treaty responsibilities.256 In brief, these are as
follows: the state(s) concerned must officially recognize an
emergency that threatens sovereignty and make the correlative public
declaration to the relevant authority.257 However, there are certain
“non-derogable” rights, such as the right to life, that remain in
place.258 A state cannot derogate from an entire convention, but only
from those elements to which the perceived threat applies.259
Furthermore, the state’s response should be proportionate to that
threat.260 The final condition lies in the principle that derogation
253 Ben-Naftali, supra note 61, at 9; see also TATHIANA FLORES ACUÑA, THE
UNITED NATIONS MISSION IN EL SALVADOR: A HUMANITARIAN LAW
PERSPECTIVE 34 (Martinus Nijhoff Publishers, 1995).
254 See Herik & Duffy supra note 235, at 374; see also Kalin, supra note 236,
at 445.
255 See Bhuta, supra note 152, at 59.
256 ID.
257 See Robert K. Goldman, Extraterritorial application of the human
rights to life and personal liberty, including habeas corpus, during situations of
armed conflict, in Research Handbook on Human Rights and Humanitarian Law
104, 105 (Robert Kolb & Gloria Gaggioli eds. 2013); & Roberta Arnold, Terrorism
in International Humanitarian Law and Human Rights Law, in International
Humanitarian Law and Human Rights Law: Towards a New Merger in
International Law 475, 483 (Roberta Arnold et al. eds., 2008).
258 See for example Article 4, International Covenant on Civil and Political
Rights (ICCPR), 1976. See also FRANCISCO FORREST MARTIN, STEPHEN J.
SCHNABLY, RICHARD WILSON, JONATHAN SIMON, & MARK TUSHNET,
INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW: TREATIES, CASES,
AND ANALYSIS 35 (2006); see McCann v United Kingdom (1996) 21 EHRR 97, para
161.
260 Jacques Delisle, States of exception in an exception state: emergency powers law in
China, in Emergency Powers in Asia: Exploring the Limits of Legality 342, 380
(Victor V. Ramraj & Arun K. Thiruvengadam eds., 2010)
237
should not result in action that is in any way discriminatory to any

particular individual or group.261
Conversely, the veracious interpretation of the doctrine of lex

specialis by rational scholars construes that specific IHL are given
preeminence over generalized HRL, where both HRL and IHL
present contradictory resolutions against unchanged given settings.262
Through Koskenniemi’s analysis it becomes clear that particular rules
(lex specialis) can do both: they can either derogate general rules by
expressing exclusion, or they can complement general rules by
providing specificity to the given situation by expressing inclusion.263
Either way, it is the lex specialis that governs the given setting of facts
in a situation.264 IHL is easily applicable in transnational armed
conflicts,265 and HRL is more easily applicable in nontransnational
armed conflicts.266 By examining detailed discussions above regarding
IHL and HRL interactions, it is evident that HRL bodies can review
IHL in their interpretations.267 For instance, HRL bodies can refer to
IHL to understand the context of the infringements of HRL during
an armed conflict, be it a transnational armed conflict or an internal
conflict.268
If this is accepted, then IHL is further dependent upon the

idea that the limiting of violence is not strictly necessary to achieve
strategic ends had benefits for both sides.269 By avoiding a reciprocal
escalation of the conflict—for example, as with massacre and
261 Jean-François Durieux, Temporary Protection: Hovering at the Edges of Refugee

Law, in Netherlands Yearbook of International Law 2014: Between Pragmatism
and Predictability: Temporariness in International Law 221, 216 (Mónika Ambrus
& Ramses A. Wessel eds., 2015).
262 KJETIL MUJEZINOVIĆ LARSEN, THE HUMAN RIGHTS TREATY
OBLIGATIONS OF Peacekeepers 257 (2012).
264 CARLA FERSTMAN, INTERNATIONAL ORGANIZATIONS AND THE FIGHT
FOR ACCOUNTABILITY 98 (2017).
265 GUANTÁNAMO: VIOLATION OF HUMAN RIGHTS AND INTERNATIONAL
LAW?, supra note 188, at 98.
266 Perna, supra note 190, at 47; see also CRAWFORD, supra note 190, at 118.
267 See Herik & Duffy supra note 235, at 374.
268 See Kalin, supra note 236, at at 445.
269 See Delisle, supra note 256, at 380.
238
reprisal—both sides could avoid an internecine escalation of

hostilities, which would obscure or neutralize the original strategic
objectives.270 Solis, for example, sees this as exemplified in
eighteenth-century international conflicts, where, even though states
might be competing for the same resources, neither has any incentive
to risk the breakdown of military conventions or the unleashing of an
uncontrolled holocaust.271
As a result, two important themes develop. First, there is an

increased conflation on the responsibility of states toward individuals,
especially toward noncombatants.272 Second, such responsibilities are
ultimately deemed to be operating on a new, universal, and almost
super-legal basis, since they are no longer contingent upon formal
treaties between combatants.273 As Duffy points out, for their
operation, all concerned parties are bound by formal treaties, such as
the Hague Regulations of 1907, the four Geneva Conventions of
1949 and AP of 1977, and the Hague Convention on Cultural
Property of 1954.274 However, the GC of 1949 in particular exceeded
this requirement by extending liability to all parties irrespective of
their treaty status.275 Moreover, the 1949 Convention simultaneously
removed the basis for any justification that might be claimed because
of breaches or excesses by one or other party;276 this principle was
reemphasized by the International Criminal Tribunal for the former
Yugoslavia (ICTY). As Duffy points out, “Non-observance of
particular binding rules by one party does not justify violations by
another . . . the ICTY has emphasized that crimes committed by an
adversary can never justify the perpetration of serious violations of
IHL.”277 For instance, the 30-article tariff was intended to be
“disseminated, displayed, read and expounded . . . without distinction
Id.
270
See SOLIS, supra note 3, at 8

271
272 Id.
273 Id.
274 HELEN DUFFY, THE WAR ON TERROR AND THE FRAMEWORK OF
INTERNATIONAL LAW 360 (2005).
275 Id.
276 Id.
277 See id. at 361.
239
based on the political status of countries or territories.”278 The

preamble then continues to assert that recognition of humankind’s
inalienable rights “is the foundation of freedom, justice and peace in
the world.”279
The application of IHL in armed conflicts becomes more

problematic when facing opponents who are prepared to engage with
civilian populations. For example, attacks may be deemed unlawful
when they are directed against civilians or “civilian objects,” or where
insufficient distinction is made between military and civilian targets:
no protagonists can escape censure when they accept that collateral
damage among civilians is unavoidable.280 As may be construed from
the above, the cardinal rule within IHL is that civilians should be
protected from attacks. Such immunity is only surrendered “where
the person takes an active and direct part in hostilities. Direct
participation should be narrowly construed, and does not include, for
example support for or affiliation to the adversary.”281 It is in these
kinds of areas that the interplay of IHL and HRL can become
particularly complex, especially given the growth of irregular warfare
and terrorist techniques. It is, however, problematic to attach such
logic to guerrilla or terrorist strategies.282 Further complications are
implied where force is applied in the guise of humanitarian
intervention, i.e., the opening of hostilities against a combatant for
the specific declared purpose of preventing humanitarian crimes.283
278 Daniel Helle & Maarit Kohonen, Publicity for the Universal Declaration of
Human Rights: General Assembly Resolution 217D(III), THE UNIVERSAL DECLARATION
OF HUMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT 725, 727
(Gudmundur Alfredsson et al. eds., 1999).
279 Universal Declaration of Human Rights, G.A. Res. 217(A)(III), U.N.
GAOR, 3d Sess., U.N. Doc. A/810 (1948) [hereinafter Universal Declaration]; see
also Corinna Mieth, The Double Foundation of Human Rights in Human Nature, in
HUMAN RIGHTS AND HUMAN NATURE 11, 11 (Marion Albers et al. eds., 2014).
280 See DUFFY, supra note 270, at 229, 366–369, 425.
281 See id, at 367–369.
282 Joost Herman, International Law and Humnitarian Space in the
Twenty-First Century: Challenged Relationships, in Humanitarian Action 11, 14
(Andrej Zwitter et al. eds., 2014).
283 See DUFFY, supra note 270, at 334.
240
In conclusion, this brings the discussion back full circle, since

the principles of international law—which enshrine universal human
rights—are indivisible from those set out in the UN Charter.284 Just
as IHL proscribes justification for excesses through the actions of an
opponent, so HRL provides a minimum and extra-treaty tariff of
rights for individuals and communities. As Chesterman points out, an
examination of the doctrine of humanitarian intervention must
consider “not merely the law concerning the use of force by states,
but the status of an international rule of law more generally.”285 The
aggregate experience within any armed conflicts is that it will face
actions by some elements that are totally contrary to both the spirit
and letter of HRL and IHL, as expressed in the principle that
“[n]othing in this Declaration may be interpreted as implying for any
state, group or person any right to engage in any activity or to
perform any act aimed at the destruction of any of the
responsibilities, rights and freedom set forth in this Declaration and
in the Universal Declaration of Human Rights of 1948.”286 Therefore,
it remains to be seen whether these tensions will be alleviated by
some harmonization of IHL and HRL in the future.
284 JANELLE M. DILLER, SECURING DIGNITY AND FREEDOM THROUGH

HUMAN RIGHTS: ARTICLE 22 OF THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS 9–10 (2011).
285 SIMON CHESTERMAN, JUST WAR OR JUST PEACE: HUMANITARIAN
INTERVENTION AND INTERNATIONAL LAW 2 (2003).
286 Article 19, A Universal Declaration of Human Responsibilities
(Interaction Council, 1997).
241

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Penn State Journal of Law & International Affairs

Untangling the Complicated Relationship between International

Follow this and additional works at: https://elibrary.law.psu.edu/jlia

2018 VOLUME 6 NO. 1

UNTANGLING THE COMPLICATED

* Advocate Supreme Court of Pakistan

I. INTRODUCTION ................................................................................... 204

Human rights law (HRL) and international humanitarian law

IHL comprises four main legal concepts: the principle of

1 Jean-Philippe Lavoyer, Implementation of International Humanitarian

1949.4 This concept mandates that belligerents must distinguish

HRL is based on the principles of nondiscrimination, such as

Accordingly, this paper is divided into four sections. The first

4 Protocol I Additional to the Geneva Conventions of Aug. 12, 1949, and

section is also divided into two subsections: Subsection A will

II. ORIGINS OF HRL AND IHL

To arrive at a comprehensive understanding of HRL and

The concept of HRL was integrated into the modern legal

Lynn Hunt, The Paradoxical Origins of Human Rights, in HUMAN RIGHTS

AND REVOLUTIONS 3, 4 (Jeffrey N. Wasserstrom et al. eds., 2007).

bedrock of the Greek and Roman civilizations,14 these universal

In essence, HRL is all about protecting human dignity:

14 AUGUSTIN COCHIN, THE RESULTS OF SLAVERY “L’ABOLITION DE

By contrast, the chronological progression of IHL can be

22 Emily Crawford & Alison Pert, International Humanitarian Law 120

IHL and HRL share some similarities owing to their similar

31 Daphné Richemond-Barak, Nonstate Actors in Armed Conflicts, in NEW

each set of rules dependent on the other for its application.40

40 Ana Filipa Vrdoljak, Cultural Heritage in Human Rights and Humanitarian

weakens the infrastructure of a state to such an extent that it is no

According to Common Article 2 of the Geneva Conventions

known as the Turku Declaration of 1990)55 considered the

HRL and IHL have multiple objectives in common. For

55 See Declaration of Minimum Humanitarian Standards, UN Doc.

of armed conflicts, civil wars, or occupations.64 Interestingly, the laws

64 Jann K. Kleffner, Human Rights and International Humanitarian Law, in The

Court of Justice (ICJ) established that HRL is applicable during

A. Jurisprudence of the Simultaneous Application of HRL and IHL

For these reasons, it becomes impossible to dichotomize

74 Tom Ruys and Sten Verhoeven, The Applicability of International

This parallel application of HRL and IHL can also be seen in

80 Gilles Giacca, Economic, Social, and Cultural Rights in Armed Conflict

B. Application of HRL and IHL during Emergencies

88 Damien Scalia, Human rights in the context of international criminal law:

The norms of IHL are generally based on the notions of

IV. RELATIONSHIP: THE NOTION OF “LEX SPECIALIS”

After concluding that HRL protection is not withdrawn

advisory opinion established certain conditions for a relationship

Some rights may be exclusively matters of [IHL];

ICJ bifurcated all humanitarian law into HRL and IHL by

In legal doctrine, lex specialis is a guideline principle related to

“law governing a specific subject matter,”108 derived from a renowned

For instance, in the specific setting of the right not to be

In principle, the right not arbitrarily to be deprived of

By establishing this, the ICJ overlooked the general

108 UNITED NATIONS ENVIRONMENT PROGRAMME, PROTECTING THE

under Article 6, while explicitly making reference to lex specialis

Michael Dennis argues that during armed conflicts, the

Inversely, the true interpretation of the doctrine of lex specialis