Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus Ad Bellum

Israel Law Review, Vol. 40, No. 2, pp. 592-613, 2007

Hebrew University International Law Research Paper No. 20-07

23 Pages Posted: 5 Dec 2007

See all articles by William A. Schabas

William A. Schabas

University College, Galway (UCG) - Faculty of Law; Criminal Law Forum; Irish Centre for Human Rights

Date Written: December 31, 2007

Abstract

Two different theories attempt to reconcile problems of application of international human rights law in time of armed conflict, to the extent that there is a potential conflict with norms set out in international humanitarian law. One, posited by the International Court of Justice, presents international humanitarian law as the lex specialis, a kind of prism through which the concept of "arbitrary deprivation of life" (Article 6(1) International Covenant on Civil and Political Rights) is to be understood in time of armed conflict. In effect, international humanitarian law supplants international human rights law during armed conflict. The other theory, advanced by the Human Rights Committee, views the two bodies of law as additive in effect. Both regimes apply, and the individual benefits from the more favorable one ("belt and suspenders" approach). Both theories profess the fundamental compatibility of the two different legal systems, yet they are predicated upon a method for resolving conflicts between them. Both theories encounter serious problems in their application. The author submits that the difficulty with these attempts to reconcile human rights law and humanitarian law lies with the failure to grasp an underlying distinction: international humanitarian law is built upon neutrality or indifference as to the legality of the war itself. Human rights law, on the other hand, law views war itself as a violation. There is a human right to peace. Because of this fundamental incompatibility of perspective with regard to jus ad bellum, human rights law and international humanitarian law can only be reconciled, as both the International Court of Justice and the Human Rights Committee desire, if human rights law abandons the right to peace and develops an indifference to the jus ad bellum. It too must accept the idea of the acceptability of "collateral" killing of civilians in war, even if the war itself is illegal. The author argues that it is preferable not to attempt to find a neat and seamless relationship between international humanitarian law and international human rights law, in the interests of preserving the pacifist strain within international human rights law.

Keywords: LEX SPECIALIS, human rights law, humanitarian law, condrum, jus ad, armed conflict, belt and suspenders,

Suggested Citation

Schabas, William A., Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus Ad Bellum (December 31, 2007). Israel Law Review, Vol. 40, No. 2, pp. 592-613, 2007; Hebrew University International Law Research Paper No. 20-07. Available at SSRN: https://ssrn.com/abstract=1044281 or http://dx.doi.org/10.2139/ssrn.1044281

William A. Schabas (Contact Author)

University College, Galway (UCG) - Faculty of Law ( email )

Newcastle Road
Galway
Ireland

Criminal Law Forum

Netherlands

Irish Centre for Human Rights ( email )

Galway
Ireland

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