Human Rights vs Humanitarian Law or Rights vs Obligations: Reflections Following the Rulings in Hassan and Jaloud
Questions of International Law, Vol. 6, (2015)
20 Pages Posted: 18 Nov 2015
Date Written: November 17, 2015
The European Court of Human Rights (ECtHR) in the cases of Hassan v. United Kingdom and Jaloud v. Netherlands extended the wartime application of international human rights law (IHRL). Although these cases have been celebrated for reducing the horrors of war, this paper shows otherwise. Critical examination of them suggests that applying IHRL to expand the wartime protection of civilians can be counterproductive. After a short introduction in Part 1, Part 2 presents these recent rulings. Part 3 analyzes them in order to call attention to an unacknowledged problem with reliance on IHRL as a way of regulating wartime scenarios: doing so often results in lower civilian protection than when international humanitarian law (IHL) is relied upon. Part 4 uses Robert Cover’s seminal work on rights-oriented vs obligations-oriented legal systems to explain why IHL (an obligations-oriented system) is better suited than IHRL to protect civilians during armed-conflicts. Part 5 responds to a counterclaim that may be raised against the present argument whereby practical necessity demands extending IHRL to armed-conflicts, since the ECtHR’s jurisdiction is limited to IHRL. Israel’s experience, among other things, is presented to respond to this counterclaim, demonstrating the potential existence of an IHL-oriented alternative to the ECtHR, in the form of re-view by domestic courts. In light of this alternative, the dispute over the wartime relations between IHL and IHRL is revealed to be less an expression of disagreements regarding the nature of human rights and more a symptom of the failure of domestic courts to uphold the rule of law in times of war.
Keywords: Wartime Application of Human Rights Law
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