International Humanitarian Law and International Human Rights Law: From Separation to Complementary Application

Abstract

This study analyses the interplay between international human rights and humanitarian law, with the aim of clarifying their concurrent application. Part I provides an understanding of each legal framework and of their relationship. The historical evolvement of the disciplines is examined, presenting the commonalities in their origins, their advancement along separate tracks, as well as the developments in their multifaceted relationship. Their scope of application and jurisdictional overlap are also explained, further demonstrating the need for clarification of their interplay. Part II addresses additional points of convergence and divergence between the two fields. It examines different approaches to their relationship, with the complementary approach established as being preferred to those advocating merger or separation of the disciplines. The study also considers the jurisprudence of the International Court of Justice and its use of the lex specialis principle. Despite being widely referred to, the lex specialis principle is, upon detailed analysis, found to be an inadequate tool for articulating the relationship between international human rights and humanitarian law. Part III analyses the practice of a wide range of international and regional bodies, and provides valuable insight into the ways in which they addressed the concurrent application. This examination reveals, on the one hand, a certain level of confusion and inconsistency in the practice of some of these bodies, especially in relation to the reasoning behind their approach to the interplay between the frameworks. On the other hand, it is also apparent from the examination that the complementary approach is clearly being adopted and advanced through this practice. On the basis of the analysis conducted throughout the study, the final chapter demonstrates why vertical top-down approaches, relying on single general principles, cannot provide an adequate solution to the interplay between the regimes. It clarifies what is in fact meant by the complementary approach and how it can be implemented with due regard to the multiplicity of widely varying circumstances. A number of steps are offered to assist in operationalising the complementary approach through an outline of guiding questions and examples of how this could work in practice. Ultimately, the study traces the evolvement of the complementary approach stemming from the origins of the two frameworks, and demonstrates its inevitability as the only sound approach able to be both pragmatic and maintaining the objectives of the two legal frameworks.